[Federal Register Volume 71, Number 69 (Tuesday, April 11, 2006)]
[Proposed Rules]
[Pages 18456-18493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3343]



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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



Proposed Designation of Critical Habitat for the Cirsium hydrophilum 
var. hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis 
(soft bird's-beak); Proposed Rule

  Federal Register / Vol. 71, No. 69 / Tuesday, April 11, 2006 / 
Proposed Rules  

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU44


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for the Cirsium hydrophilum var. 
hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis (soft 
bird's-beak)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for Cirsium hydrophilum var. hydrophilum 
(Suisun thistle) and Cordylanthus mollis ssp. mollis (soft bird's-beak) 
pursuant to the Endangered Species Act of 1973, as amended (Act). 
Approximately 2,119 acres (ac) (857 hectares (ha)) fall within the 
boundaries of the proposed critical habitat designation for C. 
hydrophilum var. hydrophilum in Solano County, California, and 
approximately 2,313 ac (936 ha) for C. mollis ssp. mollis in Contra 
Costa, Napa, and Solano Counties, California.

DATES: We will accept comments from all interested parties until June 
12, 2006. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by May 26, 2006.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Field 
Supervisor, U.S. Fish and Wildlife Service, Sacramento Fish and 
Wildlife Office, 2800 Cottage Way, Room W-2605, Sacramento, California 
95825.
    2. You may hand-deliver written comments to our Office, at the 
above address.
    3. You may send comments by electronic mail (e-mail) to 
[email protected]. Please see the Public Comments Solicited 
section below for file format and other information about electronic 
filing.
    4. You may fax your comments to (916) 414-6713.
    5. Federal eRulemaking Portal: http://www.regulations.gov. Follow 
the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-
2605, Sacramento, California 95825 (telephone (916) 414-6600).
    For more information on submitting or viewing comments, see 
``Public Comments'' under SUPPLEMENTARY INFORMATION.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Listing Branch Chief, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Room W-2605, 
Sacramento, California 95825, (telephone (916) 414-6600; facsimile 
(916) 414-6713).

SUPPLEMENTARY INFORMATION:

Public Comments

    We intend that any final action resulting from this proposal be as 
accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
subspecies due to designation;
    (2) Specific information on the amount and distribution of Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis 
habitat, and what habitat is essential to the conservation of the 
subspecies and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments;
    (6) Whether State-, county-, or local government-managed lands that 
are within the proposed designation should be excluded from the 
designation; and
    (7) The relative benefits of designation or exclusion of any lands 
for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis in the Suisun Marsh (see Suisun Marsh Management Strategies 
section for specifics).
    (8) Information concerning pollinator species for C. mollis spp. 
mollis and whether sufficient information exists to determine if such a 
feature should be considered a primary constituent element for the 
subspecies.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to [email protected] in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: Suisun Plants CH'' in your 
e-mail subject header and your name and return address in the body of 
your message. If you do not receive a confirmation from the system that 
we have received your Internet message, contact us directly by calling 
our Sacramento Fish and Wildlife Office at phone number (916) 414-6600. 
Please note that the Internet address [email protected] will be 
closed out at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment, but you should be aware that the Service may be required to 
disclose your name and address pursuant to the Freedom of Information 
Act. However, we will not consider anonymous comments. We will make all 
submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's

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present system for designating critical habitat has evolved since its 
original statutory prescription (into a process that provides little 
real conservation benefit, is driven by litigation and the courts 
rather than biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs). The Service believes that 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.
    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under ESA section 4(b)(2), there are significant limitations 
on the regulatory effect of designation under ESA section 7(a)(2). In 
brief, (1) designation provides additional protection to habitat only 
where there is a Federal nexus; (2) the protection is relevant only 
when, in the absence of designation, destruction or adverse 
modification of the critical habitat would in fact take place (in other 
words, other statutory or regulatory protections, policies, or other 
factors relevant to agency decision-making would not prevent the 
destruction or adverse modification); and (3) designation of critical 
habitat triggers the prohibition of destruction or adverse modification 
of that habitat, but it does not require specific actions to restore or 
improve habitat.
    Currently, only 473 species, or 37 percent of the 1,272 listed 
species in the U.S. under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,272 
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, the section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. United States Fish and Wildlife Service. In that case, the 
Ninth Circuit invalidated the Service's regulation defining 
``destruction or adverse modification of critical habitat.'' In 
response, on December 9, 2004, the Director issued guidance to be 
considered in making section 7 adverse modification determinations. 
This proposed critical habitat designation does not use the invalidated 
regulation in our consideration of the benefits of including areas in 
this final designation. The Service will carefully manage future 
consultations that analyze impacts to designated critical habitat, 
particularly those that appear to be resulting in an adverse 
modification determination. Such consultations will be reviewed by the 
Regional Office prior to finalizing to ensure that an adequate analysis 
has been conducted that is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, 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.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court-ordered designations have left 
the Service with limited ability to provide for public participation or 
to ensure a defect-free rulemaking process before making decisions on 
listing and critical habitat proposals, due to the risks associated 
with noncompliance with judicially imposed deadlines. This in turn 
fosters a second round of litigation in which those who fear adverse 
impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled 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). These costs, which are not 
required for many other conservation actions, directly reduce the funds 
available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis, refer to the final listing rule published in the 
Federal Register on November 20, 1997 (62 FR 61916).
    Tidal marshes in the San Francisco Bay Estuary have been 
significantly affected by habitat loss, fragmentation, and degradation 
over the last 200 years. San Pablo Bay and Suisun Bay have seen 70 and 
79 percent reductions in tidal marshes, respectively (San Francisco 
Estuary Institute (SFEI) 1998; Goals Project 1999). A large portion of 
historic tidal marshes in San Pablo Bay are diked and managed for 
agricultural production and livestock grazing. In Suisun Bay, most 
historic tidal marshes are diked and managed for wildlife, especially 
waterfowl. Suisun Marsh, the largest managed marsh in the estuary, is 
primarily used to provide wintering feeding habitat for migrating 
waterfowl (Suisun Ecological Workgroup 2001). These historic reductions 
in turn have

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affected the extent and composition of tidal marsh plant communities. 
As a result, many native halophytic (salt-tolerant) plants are 
exceedingly rare in tidal marshes within the estuary (Goals Project 
2000).

Cirsium hydrophilum var. hydrophilum

    The original description of Cirsium hydrophilum var. hydrophilum by 
Greene (1892) indicated that the subspecies was ``[v]ery common in the 
brackish marshes of Suisun Bay, California, where it grows within reach 
of tide water.'' Later references (Jepson 1901; Munz and Keck 1968) 
indicate that the subspecies was found in marshes or brackish marshes 
about Suisun Bay, but these references lacked detailed information on 
its distribution. Herbarium records at the University of California at 
Davis (UCD) (2005) from 1863 to 1974 indicate that the subspecies 
occurred in the Suisun Marsh area. This information suggests that the 
subspecies probably did not occur outside of the Suisun Bay area in 
Solano County.
    By 1975, Cirsium hydrophilum var. hydrophilum was thought to have 
been extirpated from Suisun Bay because the subspecies had not been 
seen for about 15 years. The subspecies was later rediscovered in 1989 
in Suisun Marsh (California Native Plant Society 2001). Populations 
(groups of plants based on occurrence records or reports) were 
discovered and described during further field surveys in 1991 and 1992 
at Rush Ranch (Solano Land Trust) and Peytonia Slough Ecological 
Reserve, respectively (California Department of Water Resources (CDWR) 
1993 and 1994). The subspecies' current distribution is limited to 
scattered colonies within relict undiked high tidal marshes (fully 
tidal, emergent estuarine marshes) at Rush Ranch, the Joice Island 
portion of Grizzly Island Wildlife Area, and Peytonia Slough Ecological 
Reserve in Solano County (L. C. Lee and Associates (LCLA) 2003, 
California Natural Diversity Database (CNDDB) 2005). These marshes 
occur from the mean high water mark to the marsh'upland ecotone 
(transition zone) (Goals Project 1999 and 2000).
    There are two areas known to currently support Cirsium hydrophilum 
var. hydrophilum (CDWR 1996; CNDDB 2005). These areas are the Rush 
Ranch/Grizzly Island Wildlife Area and the Peytonia Slough Ecological 
Reserve. Field surveys have found several thousand individual plants at 
Rush Ranch and much smaller numbers at Grizzly Island Wildlife Area 
(CNDDB 2005; LCLA 2003; CNDDB 2005). The population at the Peytonia 
Slough Ecological Reserve declined to a single individual plant 
observed in 1996 (CDWR 1996).
    Cirsium hydrophilum var. hydrophilum colonies at Rush Ranch/Grizzly 
Island Wildlife Area are associated with tidal marsh habitats that are 
hydrologically connected to the First and Second Mallard Branches, 
Suisun Slough, and Cutoff Slough (CDWR 1996; LCLA 2003). The population 
at the Peytonia Slough Ecological Reserve is associated with tidal 
marsh habitat hydrologically connected to Peytonia Slough.

Cordylanthus mollis ssp. mollis

    Cordylanthus mollis ssp. mollis is endemic to the San Pablo Bay and 
Suisun Bay area. The subspecies was historically found in high tidal 
marshes along the Petaluma River and Napa River through the Carquinez 
Strait to Suisun Bay and the San Joaquin-Sacramento River Delta in 
Marin, Sonoma, Napa, Solano, Contra Costa, and Sacramento Counties 
(Gray 1867; Munz and Keck 1959; Chuang and Heckard 1973; Rae 1978; UCD 
2005). The subspecies is currently found in widely scattered 
populations from Point Pinole and Fagan Slough marsh through the 
Carquinez Strait to Suisun Bay in Napa, Solano, and Contra Costa 
Counties (Stromberg and Villasenor 1986; Ruygt 1994; CNDDB 2005). C. 
mollis ssp. mollis has been listed as rare within its range since July 
1979 under the Native Plant Protection Act of 1977 and California 
Endangered Species Act of 1984 (California Department of Fish and Game 
(CDFG) 2006).
    The largest populations of Cordylanthus mollis ssp. mollis are 
found in Suisun Marsh (Rush Ranch, the Joice Island portion of Grizzly 
Island Wildlife Area, and Hill Slough Wildlife Area in Solano County), 
Fagan Slough Marsh (Fagan Marsh Ecological Reserve in Napa County), 
Southampton Marsh (Benicia State Recreation Area in Solano County), and 
the Concord Naval Weapons Station (CNWS) in Contra Costa County 
(Stromberg and Villasenor 1986; Ruygt 1994; Rejmankova and Grewell 
2000; CNDDB 2005). There are eight occurrences considered extirpated 
(Antioch Bridge; Beldons Landing, Bentley Wharf, Cullinan Ranch, Mare 
Island, Martinez, Petaluma Marsh, and San Antonio Creek Marsh) in 
Marin, Sonoma, Napa, Solano, Contra Costa, and Sacramento Counties 
because of habitat loss or degradation, or the inability of finding the 
subspecies after extensive and repeated field surveys (Ruygt 1994; 
CNDDB 2005).
    Cordylanthus mollis ssp. mollis has a high degree of population 
size variability from year-to-year at any given location. Periodic 
field surveys have shown that most extant locations have high densities 
of plants numbering in the thousands to the tens of thousands within 
small, localized populations (Stromberg and Villasenor 1986; Ruygt 
1994; CNDDB 2005). Other locations consist of widely scattered 
populations with few individual plants. Some populations may fail to 
appear entirely for several years and reappear later in the same 
general area. The reasons for the population fluctuations are not well 
known.

Suisun Marsh Management Strategies

    In evaluating areas to propose as critical habitat for Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis, we 
recognized that Federal, State, and local conservation planning efforts 
in the Suisun Marsh are ongoing. This proposed designation includes all 
habitat in the Suisun Marsh for the two subspecies that meets our 
criteria for identifying the essential features for the two subspecies, 
including lands that are a part of these planning efforts. We seek 
public comment about whether the developing Suisun Marsh Habitat 
Management, Preservation, and Restoration Plan and the previously 
developed Suisun Marsh Protection Plan would provide an alternative to 
a critical habitat designation that provides special management for 
those physical and biological characteristics that are essential to the 
conservation of the subspecies. The potential result of the plan would 
be to avoid critical habitat designation because the special management 
or protection would not be necessary or the benefits of excluding the 
areas as critical habitat outweigh the benefits of inclusion. One 
reason the benefits of exclusion could outweigh those of inclusion is 
that designating a particular area might prevent the implementation of 
a local plan which would otherwise provide a greater benefit to the 
species.
    It is the Service's goal to identify and support innovative 
cooperative conservation approaches that have a similar or greater 
likelihood of providing for the conservation of listed subspecies when 
compared to traditional regulatory approaches such as designation of 
critical habitat. In our determination of whether habitat is in need of 
``special management or protection,'' the Service will evaluate the 
Suisun Marsh Habitat Management, Preservation, and Restoration Plan and 
the previously developed Suisun Marsh Protection Plan to determine 
whether their implementation would provide a

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similar or greater level of conservation benefits to the Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis when 
compared to a final designation of critical habitat. The two management 
strategies are outlined below.

The Suisun Marsh Protection Plan and the Suisun Marsh Preservation Act

    The Suisun Marsh Protection Plan of 1976 (SMPP) establishes a 
``primary management area'' in Suisun Marsh that encompasses the entire 
range of Cirsium hydrophilum var. hydrophilum, and also includes the 
areas we propose as critical habitat units 2 and 4 for Cordylanthus 
mollis ssp. mollis (SFBCDC 2006, 1976). The Plan recommends that areas 
within the primary management area ``should be protected and managed to 
enhance the quality and diversity of the habitats' (SFBCDC 2006). It 
further recommends that ``[t]he tidal marshes in the primary management 
area should be preserved'' and that ``[w]here feasible historic marshes 
should be returned to wetland status.'' The SMPP was incorporated into 
State law by the Suisun Marsh Preservation Act of 1977 (SMPA), which 
utilizes a State-level permitting process and a county-level protection 
program to prevent development in the marsh that is inconsistent with 
the SMPP (SFBCDC 2005).

Suisun Marsh Habitat Management, Preservation, and Restoration Plan

    The Suisun Marsh Habitat Management, Preservation, and Restoration 
Plan (SMHMP) is being developed by the Suisun Marsh Charter Group 
(Charter Group), a collaborative effort among of Federal, State and 
local agencies with primary responsibility for actions in the Suisun 
Marsh. The Charter Group principal agencies are the Service, USBR, 
CDFG, DWR, Suisun Resource Conservation District, California Bay--Delta 
Authority, and National Oceanic and Atmospheric Administration's 
National Marine Fisheries Service. Additional public entities 
participating in the Charter Group include: U.S. Army Corps of 
Engineers (USACE), San Francisco Bay Conservation and Development 
Commission, and San Francisco Bay--Delta Science Consortium. The 
Service and USBR are participating as National Environmental Policy Act 
(NEPA) co-lead Federal agencies, and the CDFG is the lead California 
Environmental Quality Act (CEQA) State agency, for the development of 
the Programmatic Environmental Impact Statement/Report (PEIS/R). These 
lead agencies will oversee the environmental review process for the 
SMHMP.
    The Charter Group was formed in 2001 to resolve issues of amending 
the Suisun Marsh Preservation Agreement (SMPA), obtain a Regional 
General Permit from the USACE, implement the Suisun Marsh Levee 
Program, and recover threatened and endangered species. The broader 
purpose of the Charter Group was to develop and agree on a long-term 
implementation plan for the Suisun Marsh consistent with, and in the 
context of, the CALFED Bay--Delta Program (a consortium of State and 
Federal agencies working cooperatively to improve the quality and 
reliability of California's water supplies while restoring the Bay--
Delta ecosystem). The mission of the CALFED Bay--Delta Program is to 
develop and implement a long-term comprehensive plan that will restore 
ecological health and improve water management for beneficial uses of 
the Bay-Delta System.
    The Charter Group has been charged with developing a regional plan 
that would outline the actions needed in Suisun Marsh to preserve and 
enhance managed seasonal wetlands, restore tidal marsh habitat, 
implement a comprehensive levee protection and improvement program, and 
protect ecosystem and drinking water quality. The proposed SMHMP would 
be consistent with the goals and objectives of the Bay--Delta Program, 
and balance them with SMPA, Federal and State Endangered Species Acts, 
and other management and restoration programs within the Suisun Marsh 
in a manner responsive to the concerns of all stakeholders, and based 
upon voluntary participation by private landowners. The proposed SMHMP 
also would provide for simultaneous protection and enhancement of: (1) 
The Pacific Flyway and existing wildlife values in managed wetlands; 
(2) threatened and endangered species; (3) tidal marshes and other 
ecosystems; and (4) water quality, including, but not limited to, the 
maintenance and improvement of levees. The SMHMP has seven goals:

     Goal 1, Ecological Processes: Rehabilitate natural 
processes where feasible in the Suisun Marsh to more fully support, 
with minimal human intervention, natural aquatic and associated 
terrestrial biotic communities and habitats, in ways that favor 
native species of those communities, with a particular interest in 
waterfowl and sensitive species.
     Goal 2, Habitats: Protect, restore, and enhance habitat 
types where feasible in the Suisun Marsh for ecological and public 
values, such as supporting species and biotic communities, 
ecological processes, recreation, scientific research, and 
aesthetics.
     Goal 3, Levee System Integrity: Provide long-term 
protection for multiple Suisun Marsh resources by maintaining and 
improving the integrity of the Suisun Marsh levee system.
     Goal 4, Non-Native Species: Prevent the establishment 
of additional non-native species and reduce the negative ecological 
and economic impact of established non-native species in the Suisun 
Marsh.
     Goal 5, Water and Sediment Quality: Maintain or improve 
water and sediment quality conditions to provide good quality water 
for all beneficial uses and fully support healthy and diverse 
aquatic ecosystems in the Suisun Marsh; and to eliminate, to the 
extent possible, toxic impacts to aquatic organisms, wildlife, and 
people.
     Goal 6, Public Use and Waterfowl Hunting: Maintain the 
heritage of waterfowl hunting and increase the surrounding 
communities' awareness of the ecological values of the Suisun Marsh.
     Goal 7, Long-Term Funding, Plan Implementation, and 
Regulatory Reliability and Efficiency: Develop and implement a plan 
that: (1) Addresses long-term funding, (2) creates an efficient and 
reliable regulatory climate, (3) promotes effective management 
practices, and (4) improves coordination of activities among 
agencies within and adjacent to the Suisun Marsh.

    The Charter Group is committed to a planning process, consistent 
with the CALFED Record of Decision that includes strong local 
involvement, is integrated with other programs, uses the best available 
scientific and commercial information, and is open and transparent. 
Public scoping has been completed for the PEIS/R. The Service's 
External Affairs Program is conducting ongoing public outreach through 
the publication of a newsletter. When the Draft PEIS/R is completed, it 
will be available for public review and comment. The SMHMP is in the 
final stages of development, and it is anticipated that the Draft PEIS/
R will be available for public review and comment in the fall of 2006 
before the final designation of critical habitat. Once the SMHMP has 
been finalized and the Draft PEIS/R is available to the public, we will 
reopen the comment period on this proposal to solicit comments. We 
recognize that the public is not able to comment on specific aspects of 
the plan without it being available for review, but we would like to 
solicit public comments as described below.

Public Comments Solicited

    In addition to the analysis conducted when assessing potential 
economic impacts of the Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis critical habitat designation, the 
Secretary will evaluate other considerations as part of the 4(b)(2) 
exclusion process. As part of the

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Secretary's deliberative process, the Service identifies the benefits 
of inclusion and exclusion of various areas.
    The Service will evaluate whether the regulatory benefits of 
designation of critical habitat in the Suisun Marsh for the Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis 
outweigh the conservation benefits of implementation of the SMHMP. In 
this proposed rule, we are soliciting public comment on the relative 
merits of a critical habitat designation when compared to 
implementation of the SMHMP. We are particularly interested in public 
comment on the following issues:

     What is necessary to ensure the conservation of the 
Suisun thistle and soft bird's-beak with regard to private lands in 
the Suisun Marsh;
     Whether areas preserved by the Suisun Marsh Protection 
Plan or covered under the SMHMP should be designated as critical 
habitat and the degree to which a critical habitat designation would 
confer conservation benefits on the Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis when compared to the 
likely benefits of the alternative SMHMP;
     The degree to which the designation or the SMHMP would 
educate members of the public such that conservation efforts would 
be enhanced;
     The degree to which a critical habitat designation or 
the SMHMP would have a positive, neutral, or negative impact on 
voluntary conservation efforts on privately owned lands;
     Whether the tidal restoration and habitat protection 
goals proposed in the upcoming SMHMP will protect the habitat 
sufficiently; and
     Whether a critical habitat designation of private lands 
already occupied by the Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis and subject to the regulatory 
provisions of the Act will provide additional regulatory 
conservation benefits to accrue on those lands and whether 
traditional methods of regulation under the Act (for example, 
section 7 consultation with the USACE) are adequate to provide for 
the long-term conservation of the C. hydrophilum var. hydrophilum 
and C. mollis ssp. mollis on private lands in the Suisun Marsh.

    The Service will evaluate information received on these and other 
issues when making a decision concerning the final designation of 
critical habitat. Comments on the SMHMP may be sent to the Field 
Supervisor of the Sacramento Fish and Wildlife Service (see ADDRESSES 
section). Any economic exclusions would be predicated on the results of 
the economic analysis.

Previous Federal Actions

    Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis were listed as endangered in the final listing rule published in 
the Federal Register on November 20, 1997 (62 FR 61916). In the final 
listing rule for the two subspecies, we determined that the designation 
of critical habitat was not prudent because that the designation would 
not be beneficial to the conservation of the two subspecies.
    On November 17, 2003, the Center for Conservation Biology and 
others filed a lawsuit in the Northern District of California against 
the Secretary of the Interior, challenging the not prudent 
determination of critical habitat for the two subspecies (Center for 
Biological Diversity, et al. v. Gale Norton, Secretary of the 
Department of the Interior, et al., CV 03-5126-CW). On June 14, 2004, 
the U.S. District Court Judge signed an Order granting a stipulated 
settlement agreement between the two parties. The Service agreed to 
propose critical habitat for the two plant subspecies on or before 
April 1, 2006, and finalize the designation on or before April 1, 2007. 
For more information on previous Federal actions concerning Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis, refer 
to the final listing rule published in the Federal Register (62 FR 
61916) on November 20, 1997.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. Conservation, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species or threatened species to the point at 
which the measures provided pursuant to the Act are no longer 
necessary. Such methods and procedures include, but are not limited to, 
all activities associated with scientific resources management such as 
research, census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    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 (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 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 
geographical 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, but not always, be essential to the 
conservation of the species and, therefore, typically 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

[[Page 18461]]

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

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Cirsium hydrophilum 
var. hydrophilum and Cordylanthus mollis ssp. mollis. The following 
geospatial, tabular data sets were used in determining critical 
habitat: occurrence data for C. hydrophilum var. hydrophilum and C. 
mollis ssp. mollis (CNDDB 2005); historic and modern habitats of the 
San Francisco Bay Estuary (SFEI 1998); data gathered for the 
development of the draft recovery plan (Service 2005); Contra Costa, 
Napa, and Solano County soil survey data (Natural Resources and 
Conservation Service (NRCS) 2005c); vegetation mapping and tidal marsh 
data for Suisun Marsh (Vaghti and Keeler-Wolf 2004a and 2004b); 
National Wetlands Inventory data for Contra Costa, Napa, and Solano 
Counties (National Wetlands Inventory (NWI) 2005); black and white 
1:24,000 scale digital orthophoto quarter quadrangles (U.S. Geological 
Survey (USGS) dated June/July 1993); Teale data for California wetlands 
and hydrography (California Spatial Information Library 2005); color 
mosaic 1:9,600 scale digital aerial photographs for Suisun Bay (dated 
June 16, 2003) (CDFG 2005c); and 1:24,000 scale digital raster graphics 
of USGS topographic quadrangles. Land ownership was determined from 
geospatial data sets associated with 2003 parcel data from Contra Costa 
and Napa Counties (SFWO 2005), 2005 parcel data for Suisun Marsh (CDFG 
2005a), and boundary data for CDFG lands (CDFG 2005b).
    Additional information was provided by Brenda Grewell (ecologist 
with the U.S. Department of Agriculture (USDA), Agricultural Research 
Service at the University of California at Davis) and staff from CDFG, 
California Department of Parks and Recreation (CDPR), East Bay Regional 
Park District (EBRPD), Solano Land Trust, and the U.S. Department of 
the Navy (USDN). We also conducted local site visits at Rush Ranch, 
Hill Slough and Grizzly Island Wildlife Areas, Peytonia Slough 
Ecological Reserve, Southampton Marsh, Point Pinole Regional Shoreline, 
and McAvoy Boat Harbor.
    We have reviewed available information that pertains to the habitat 
requirements of Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis. There is limited information on habitat 
requirements for these subspecies, but the primary informational 
sources are (1) CNDDB (2005); (2) CDWR (1993, 1994, 1996, 1999, and 
2001) correspondence and reports for Suisun Marsh; (3) Baylands 
Ecosystem Goals Project (1999 and 2000); and (4) information gathered 
for the development of the draft recovery plan for the subspecies 
(Service 2005). We reviewed scientific studies and survey reports for 
C. hydrophilum var. hydrophilum (LCLA 2003) and C. mollis ssp. mollis 
(Stromberg and Villasenor 1986; Ruygt 1994; Rejmankova and Grewell 
2000; Grewell et al. 2003; Grewell 2004; EBRPD 2005). A variety of 
other non-peer and peer-reviewed articles were reviewed for background 
information on wetland ecology and hydrology, plant ecology and 
biology, and historical accounts of the San Francisco Bay and Joaquin-
Sacramento River Delta.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (primary constituent elements (PCEs)) 
that are essential to the conservation of the subspecies, and that may 
require special management considerations and protection. These 
include, but are not limited to, space for individual and population 
growth and for normal behavior; food, water, air, light, minerals, or 
other nutritional or physiological requirements; cover or shelter; 
sites for breeding, reproduction, and rearing (or development) of 
offspring; and habitats that are protected from disturbance or are 
representative of the historic geographical and ecological 
distributions of a species.

Space for Individual and Population Growth and Normal Behavior

    The San Francisco Bay Estuary is the largest contiguous tidal marsh 
system on the Pacific Coast of North America. The estuary undergoes two 
daily tidal cycles with large differences between successive high and 
low tidal cycles. The primary source of fresh water entering the 
estuary is through the San Joaquin-Sacramento River systems (Pestrong 
1972; Conomos et al. 1985). Saltwater and seasonal freshwater inflows 
into the estuary affect salinity levels, sediment deposition, tidal 
flushing, and the vertical extent of marsh vegetation in tidal marshes 
(Purer 1942; Josselyn 1983).
    The depth, duration, and frequency of tidal flows directly affect 
tidal marsh channel networks and distribution of plant communities. 
Under natural tidal regimes, channels develop and migrate through 
erosion and deposition processes (such as channel undercutting, bank 
slumping, and sedimentation) during daily flood and

[[Page 18462]]

ebb flows and seasonal storm events (Pestrong 1965 and 1972; Garofalo 
1980). These networks delineate the degree of tidal flooding based on 
the width, depth, and elevation of existing channels. The intensity of 
tidal events controls the level of tidal flushing within marshes. 
Flushing actions as well as seasonal freshwater inflows help to 
moderate soil and ground water salinity on a spatial and temporal basis 
(Purer 1942; Sanderson 1998; Sanderson et al. 2000 and 2001). These 
natural processes acting together impose a strong influence on plant 
germination and growth in tidal marshes (Vine and Snow 1984; DeLaune et 
al. 1987; Pennings and Callaway 1992; Konisky and Burdick 2004).
    Significant changes can occur in tidal marshes, above normal 
seasonal conditions, to affect plant distributions when natural tidal 
hydrology is artificially modified by construction of tide gates, 
mosquito abatement ditches, levees, or other water control structures 
to restrict its full tidal range. These include changes to soil 
salinity, chemistry, and aeration (for example, leading to soil 
subsidence and compaction); lowering of water tables; reductions in 
sedimentation rates and vertical marsh accretion; and increases in 
organic materials (Mahall and Park 1976; Balling and Resh 1983; 
Anisfeld and Benoit 1997; Burdick et al. 1997; Portnoy and Giblin 1997; 
Bryant and Chabreck 1998; Kuhn et al. 1999; Portnoy 1999; Goals Project 
2000; Reed 2002). This is often followed by a change in the 
vegetational composition from typical native halophytic marsh plants to 
less salt-tolerant native and non-native plants (Roman et al. 1984; 
Goals Project 2000). These changes generally fail to support rare tidal 
marsh plants such as Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis (Goals Project 2000) and therefore, 
only those areas that have been shown to support populations of the two 
subspecies or shown to support the features identified as essential for 
the two subspecies have been proposed for designation.

Landscape Ecology of Cirsium hydrophilum var. hydrophilum

    Most Cirsium hydrophilum var. hydrophilum occurrences are found 
along the banks of canals or ditches, within 50 to 100 feet (15.2 to 
30.5 meters (m)) of the high water mark of natural tidal channels, and 
on tidal floodplains within tidal marshes (CDWR 1993; LCLA 2003; CNDDB 
2005). Occurrences in these areas may result from tidal inundations 
lowering soil and ground water salinity (tidal flushing) producing a 
less stressful environment for plant establishment (Balling and Resh 
1983; Sanderson 1998). The subspecies is also most often found in 
regularly flooded and permanently saturated habitats (LCLA 2003; NWI 
2005). Few occurrences are located in seasonally flooded or saturated 
habitats (LCLA 2003). The subspecies does not appear to thrive in diked 
wetlands or along narrow fringe high tidal marshes on the outboard side 
of levees (CDWR 1994; Goals Project 2000). These areas were not 
considered to be capable of sustaining or supporting populations of the 
subspecies and have not been included in the proposed designation.
    Common native plant associates of Cirsium hydrophilum var. 
hydrophilum include Argentina egedii ssp. egedii (Pacific silverweed), 
Atriplex prostrate (triangle orache), Cicuta maculate var. bolanderi 
(spotted water hemlock), Distichlis spicata (inland saltgrass), 
Euthamia occidentalis (western goldentop), Grindelia stricta (Oregon 
gumweed), Jaumea carnosa (gray marsh jaumea), Juncus balticus (Baltic 
rush), Salicornia virginica (Virginia glasswort), Schoenoplectus 
pungens var. pungens (common threesquare), and Senecio hydrophilus 
(water ragwort). Common non-native plant associates include Apium 
graveolens (wild celery), Lepidium latifolium (broadleaved 
peppergrass), and Rumex crispus (curly dock) (CDWR 1994; LCLA 2003; 
plant names referenced from NRCS 2005b). Lepidium latifolium is of 
special concern since it forms large monotypic patches that displace 
native marsh vegetation (Renz 2000). LCLA (2003) observed that the five 
most dominate associates at Rush Ranch, based on canopy coverage in 
sample plots, were Argentina egedii ssp. egedii, Schoenoplectus pungens 
var. pungens, Juncus balticus, Lepidium latifolium, and Grindelia 
stricta.

Landscape Ecology of Cordylanthus mollis ssp. mollis

    Most extant occurrences of Cordylanthus mollis ssp. mollis are 
located in high tidal marshes that receive full tidal inundations (SFEI 
1998; CNDDB 2005). Narrow fringe high tidal marshes on the outboard 
side of levees do not appear to support the subspecies (CDWR 1994; 
Goals Project 2000). Fully tidal marshes at Hill Slough Marsh, Rush 
Ranch, the Joice Island portion of Grizzly Island Wildlife Area, 
Southampton Marsh, Fagan Slough Marsh, McAvoy Boat Harbor, and Point 
Pinole Shoreline account for approximately 80 percent of the total 
mapped occurrences from CNDDB (2005). Non-specific occurrences include 
data sources with imprecise location information. These data are mapped 
as circles of varying radii based on data reliability (Bittman 2001). 
There were nine non-specific C. mollis ssp. mollis occurrences (Antioch 
Bridge, Bentley Wharf, Cullinan Ranch, Cutting Wharf, Mare Island, 
Martinez, McAvoy Boat Harbor, Petaluma Marsh, and San Antonio Creek 
Marsh) that were mapped with radii of 0.1 to 1 mile (0.16 to 1.6 
kilometers) (CNDDB 2005).
    Specific occurrences of Cordylanthus mollis ssp. mollis in muted 
high tidal marshes (marshes with reduced tidal range due to physical 
impediments (Goals Project 1999, page 79)) are found on the CNWS and a 
small area adjacent to the CNWS just north of the General Chemical 
plant along the Contra Costa shoreline. They account for approximately 
6 percent of all specific occurrences.
    Diked and managed marshes account for approximately 14 percent of 
all specific Cordylanthus mollis ssp. mollis occurrences. These marshes 
are located in the eastern portion of Suisun Marsh and around the 
perimeter of high tidal areas at Hill Slough and Fagan Slough marshes. 
The occurrence of C. mollis ssp. mollis populations in diked and 
managed marshes may likely be a result of dormant seed bank(s) and 
associated marsh conditions that still promote their establishment. 
However, future land use and management activities in these marshes may 
rapidly alter marsh conditions to further restrict or exclude the 
subspecies from the local plant community (Goals Project 1999 and 
2000).
    Populations of Cordylanthus mollis ssp. mollis typically occur 
above mean high water to the marsh-upland ecotone (Ruygt 1994; CDWR 
1999; Goals Project 1999). Most subspecies occurrences are found in 
regularly flooded and permanently saturated habitats (NWI 2005). 
Current populations are most often found in mixed halophytic plant 
communities with an average canopy height equal to or less than 20.5 
inches (in) (52 centimeters (cm)) (Grewell 2003). Tidal events are 
important for regulating tidal marsh plant communities and may be a 
critical factor in regulating the hemiparasitic life cycle of the 
subspecies (Ruygt 1994; Grewell et al. 2003).
    Cordylanthus mollis ssp. mollis establishes fragile parasitic root 
connections to their host plants by means of a specialized structure 
called a haustorium (Chuang and Heckard 1971; Grewell et al. 2003). 
These connections produce an extensive network of intertwined roots 
that provide the subspecies with part of its

[[Page 18463]]

water and nutritional requirements to augment its growth. C. mollis 
ssp. mollis does not appear to have a specific host plant preference 
(Grewell 2004). Seedlings will attach to a wide range of host plants, 
but not all plants are suitable hosts. Non-native winter annuals such 
as Hainardia cylindrical (barbgrass) and Polypogon monspeliensis 
(annual rabbitsfoot grass) or native winter annuals such as Juncus 
bufonius (toad rush) are not suitable hosts since they typically die 
before C. mollis ssp. mollis can flower and produce seeds (Grewell 2003 
and 2004). Known suitable hosts include Distichlis spicata (salt 
grass), Salicornia virginica (pickleweed), and Jaumea carnosa (marsh 
jaumea) (Grewell 2003 and 2004). Seedlings suffer increased mortality 
when they germinate near unsuitable hosts or in habitats with a low 
availability of suitable hosts (Grewell 2004).
    Common native plant associates of Cordylanthus mollis ssp. mollis 
include Atriplex prostrate, Cuscuta salina (saltmarsh dodder), 
Distichlis spicata, Jaumea carnosa, Limonium californicum (California 
sealavender), Plantago maritima (goose tongue), Salicornia virginica, 
Symphyotrichum expansum (southwestern annual saltmarsh aster), and 
Triglochin maritimum (seaside arrowgrass). A common non-native plant 
associate is Polygonum arenastrum (oval-leaf knotweed) (Ruygt 1994; 
Grewell 2003; plant names referenced from NRCS 2005b). Cuscuta salina 
is the most common plant associate of C. mollis ssp. mollis throughout 
its range (Grewell 2003).

Soils

    Soil survey data (NRCS 2005c) for Contra Costa, Napa, and Solano 
Counties are delineated by soil map units (series). A soil map unit 
represents an area dominated by one or several types of soils (NRCS 
1995). Each map unit is named based on its taxonomic classification of 
the dominant soil(s). Boundaries between soil types are determined by 
field surveys and soil models, but may not be fixed, since individual 
soils merge into one another as their properties gradually change over 
the landscape. The degree of soil genesis is driven by natural and 
anthropogenic processes on a landscape level that may further alter 
soil properties over time (Buol et al. 1980).
    Occurrences of Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis used for soil area estimates only 
include populations that have a specific polygon mapping precision 
(CNDDB 2005). Approximately 92.4 percent (98.3 ac/39.8 ha) of C. 
hydrophilum var. hydrophilum occurrences are found on hydric soil 
series that are slightly to moderately saline within the first 3 feet 
(ft)(0.9 meters (m)) of soil depth (USDA 1993, page 194; NRCS (2005a, 
2005c, and 2005d)). C. mollis ssp. mollis occurrences are found on 
approximately 91.1 percent (480.7 ac/194.5 ha) of hydric soil series 
that are slightly to moderately saline within the first 3 ft (0.9 m) of 
soil depth (USDA 1993, page 194; NRCS (2005a , 2005c, and 2005d)).
    It is not known whether the respective soil series associated with 
occurrences of Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis are due to limited seed dispersal, colonization 
potential, plant competition, changes in tidal marsh regimes, specific 
edaphic requirements, or other potential factors (Ruygt 1994; LCLA 
2003; Service 2005). Additional studies are needed to determine how 
soils affect the distribution of these subspecies in tidal marshes.

Reproduction in Cirsium hydrophilum var. hydrophilum

    Cirsium hydrophilum var. hydrophilum is a perennial plant that dies 
after flowering and bearing seeds. Its vegetative period is usually 1 
year, but if small vegetative plant size or unfavorable environmental 
conditions delay flowering, a plant may grow back from its central root 
crown after the winter, and thereby live for more than a year. 
Flowering occurs throughout the summer during most years and continues 
through the production of ripe seed heads (Service 2005).
    Pollination ecology of Cirsium hydrophilum var. hydrophilum has not 
been studied to identify specific flower pollinators. Field 
observations at Rush Ranch indicate that several bee species may be 
important in pollinating the subspecies (LCLA 2003; Service 2005). The 
most common species observed gathering pollen at the ranch was the 
yellow-faced bumble bee (Bombus vosnesenskii) (LCLA 2003).
    The reproductive output of Cirsium hydrophilum var. hydrophilum has 
not been quantified for individual plants. Results from sample plot 
data at Rush Ranch indicated that 21 percent of the plants were 
reproductive flowering adults and the rest were either first or second 
year non-flowering individuals (LCLA 2003). Flowering plants may 
produce hundreds of seed heads. Seed heads observed in July of 2000 had 
three to five ripe seeds per head, but many of them contained aborted 
seeds or were found with insect larvae engaged in active seed predation 
(Service 2005). Plant-eating insects can significantly limit seed 
production and plant demography as seen in several other Cirsium 
species (Louda and Potvin 1995; Palmisano and Fox 1997; Louda and 
O'Brien 2002; Rand and Louda 2004; Louda et al. 2005; Rose et al. 
2005).
    Information on short and long distance seed dispersal for Cirsium 
hydrophilum var. hydrophilum is lacking. The subspecies usually has a 
plumed pappus (tufted appendage) attached to each mature seed to aid in 
wind dispersal; however, the plumed pappus may sometimes detach from 
the relatively thick-walled, heavy seeds before it disperses (Service 
2005). Studies on other species in the same family have shown that most 
plumed seeds are wind dispersed only a few meters (Sheldon and Burrows 
1973; McEvoy and Cox 1987; Klinkhamer et al. 1988; Wallace et al. 
2005). The extent of horizontal seed dispersal is affected in part by 
local topography and surrounding vegetation (Sheldon and Burrows 1973; 
McEvoy and Cox 1987; Wallace et al. 2005). Streams and tidal flows have 
been shown to be important dispersal mechanisms in Cirsium vinaceum 
(Sacramento Mountain thistle) and certain halophytic plants (Koutstaal 
et al. 1987; Huiskes et al. 1995; Craddock and Huenneke 1997).
    The presence of numerous small, discrete colonies of Cirsium 
hydrophilum var. hydrophilum as seen by LCLA (2003) at Rush Ranch 
suggests that the subspecies may have relatively local breeding micro-
habitats resulting in limited seed dispersal. However, the relatively 
tall stature of this subspecies, as compared to other associated tidal 
marsh plants, and flat topography of the surrounding marsh could 
potentially allow for long distance seed dispersal. It is unlikely that 
seeds would be dispersed by attachment to animal fur or feathers since 
they have a smooth, glossy seed coat (Service 2005).
    Specific conditions for germination and growth of Cirsium 
hydrophilum var. hydrophilum are not known, but field observations 
suggest they are associated with small gaps or sparsely vegetated 
areas. Dense cover of marsh plants in wet years may restrict the 
establishment of the subspecies (CDWR 1996 and 1999).

Reproduction in Cordylanthus mollis ssp. mollis

    Cordylanthus mollis ssp. mollis, an annual, regenerates from a 
persistent, dormant seed bank. The longevity of seed banks is unknown, 
but some populations fail to emerge for several years and then 
reappear, suggesting

[[Page 18464]]

long-term viability of dormant seeds (Service 2005). The peak seed 
germination period occurs during the most frequent tidal inundations in 
areas of bare soil (CDWR 1994; Ruygt 1994). Seedling growth rapidly 
increases by mid-March when tidal inundations reach an annual low. 
Flowering generally reaches a peak in mid-summer and declines by late 
August. The number of flowers produced per plant varies greatly and 
appears to be dependent on plant height and degree of branching (Ruygt 
1994).
    Cordylanthus mollis ssp. mollis is probably dependent on insects 
for successful pollination and reproduction. Ruygt (1994) observed 
three bee species that were visitors to various C. mollis ssp. mollis 
populations in Napa and Solano Counties. Bumble bees (Bombus 
californicus) were the most frequent visitors seen foraging among 
flowers. The low number of potential pollinators at some locations 
suggests that the subspecies may rely to some degree on self-
pollination to fertilize flowers within larger populations (Ruygt 
1994). During a pollinator exclusion experiment, Ruygt (1994) observed 
that several plants were able to produce seeds through self-
fertilization, but the viability of these seeds were not tested or 
compared to those for non-experimental plants. Grewell et al. (2003) 
observed five bee genera and one bee fly acting as potential 
pollinators at a recently reintroduced population of C. mollis ssp. 
mollis at Rush Ranch and a natural population at Hill Slough Marsh.
    Seed production in Cordylanthus mollis ssp. mollis varies greatly 
among individual plants. Mature plants are multi-branched with each 
branch producing numerous seed capsules. Sampled capsules from three 
populations (Ruygt 1994) contained from 8 to 39 seeds (averaging 23.5 
seeds per capsule). Based on this data, the estimated average seed 
production at Hill Slough Marsh was 495 seeds per plant (Ruygt 1994). 
Stromberg and Villasenor (1986) observed capsules that contained 
between 15 to 40 seeds per capsule at several C. mollis ssp. mollis 
populations. Grewell (2004) observed up to 32,000 seeds per plant under 
ideal growing conditions. However, seed production can be significantly 
influenced by flower, fruit, and seed predation from lepidopteran 
larvae (Ruygt 1994; Grewell et al. 2003).
    Limited information exists on seed dispersal mechanisms for 
Cordylanthus mollis ssp. mollis. Seeds may disperse short distances 
from parent plants by tidal inundations or animals (Grewell et al. 
2003), but successful long distance dispersal by these or other events 
have not been documented. Stromberg and Villasenor (1986) observed that 
most of the mature seed capsules remained closed on parent plants. They 
believed that the majority of the seeds were probably released from 
seed capsules after mature plants fell to the ground and decayed. This 
would likely result in seeds germinating directly beneath parent 
plants. This seed dispersal mechanism may partly explain the reason for 
the high densities of plants often seen in some populations.
    The deep reticulated seed coat (Chuang and Heckard 1972) of 
Cordylanthus mollis ssp. mollis can trap microscopic pockets of air 
that allow seeds to float in saline and fresh water (Ruygt 1994). This 
feature may enable seeds to disperse during tidal events and establish 
local seed banks. Several authors found that tidal events can be 
important agents in seed dispersal for a variety of tidal saltwater and 
freshwater marsh plants (Koutstaal et al. 1987; Huiskes et al. 1995; 
Griffith and Forseth 2002; Wolters and Bakker 2002; Neff and Baldwin 
2005). C. mollis ssp. mollis seeds may persist in dormant seed banks 
for years, but information on the dynamics of these seed banks is 
limited and requires more study (Grewell et al. 2003). Population 
expansion is dependent on viable seeds dispersing to appropriate 
habitats, germinating, and establishing early parasitic connections to 
the roots of suitable tidal marsh host plants.
    The specific PCEs required for Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis are derived from the biological 
needs of the two plants as described above and in the Background 
section of this proposal.

Primary Constituent Elements for Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis

    Pursuant to our regulations, we are required to identify the known 
physical and biological features (primary constituent elements (PCEs)) 
essential to the conservation of Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis. All of the areas we are proposing 
as critical habitat are occupied by the subspecies, except that one 
unit (Hill Slough Marsh) proposed for both subspecies is currently 
occupied only by C. mollis ssp. mollis. Efforts are underway to restore 
C. hydrophilum var. hydrophilum to that area. All of the proposed 
critical habitat areas are within the subspecies' historic geographic 
range, and contain physical and biological features essential to the 
conservation of the subspecies.
    Primary Constituent Elements: The PCEs for C. hydrophilum var. 
hydrophilum, based on its known occurrences in Suisun Marsh, are:
    (1) Tidally influenced marsh areas (intertidal emergent estuarine 
marshes) bounded on the seaward edge by the mean high water line and on 
the landward edge by a marsh-upland ecotone; and containing channel 
networks influenced by freshwater and saltwater hydrology and 
exhibiting full natural tidal inundations to allow for channel 
development and migration through erosional and depositional processes 
(such as channel undercutting, bank slumping, and sedimentation) during 
daily flood and ebb flows and seasonal storm events.
    (2) Areas associated with PCE 1 that are: (a) Between the bank and 
high water mark of natural tidal channels; (b) along the banks of 
tidally influenced canals or ditches; or (c) within tidally influenced 
floodplains that contain hydric soils that are slightly to moderately 
saline (4 to 16 decisiemens/meter (dS/m)) within the first 3 ft (0.9 m) 
of soil depth.
    Primary Constituent Elements: The PCEs for Cordylanthus mollis ssp. 
mollis, based on its known occurrences, are:
    (1) Tidally influenced marsh areas (intertidal emergent estuarine 
marshes) bounded on the seaward edge by the mean high water line and on 
the landward edge by a marsh-upland ecotone; and containing channel 
networks influenced by freshwater and saltwater hydrology and 
exhibiting full natural tidal inundations to allow for channel 
development and migration through erosional and depositional processes 
(such as channel undercutting, bank slumping, and sedimentation) during 
daily flood and ebb flows and seasonal storm events.
    (2) Areas associated with PCE 1 that are within tidally influenced 
marsh floodplains that contain hydric soils that are slightly to 
moderately saline (4 to 16 dS/m) within the first 3 ft (0.9 m) of soil 
depth.
    (3) Tidal marsh habitats within PCE 1 and PCE 2 that have native 
halophytic plant communities with an average canopy height equal to or 
less than 20.5 in (52 cm);
    (4) Areas within PCE 1 and PCE 2 that provide for a sufficient 
number of suitable host plants, including but not limited to Distichlis 
spicata, Salicornia virginica, and Jaumea carnosa. These host plants 
provide the subspecies with water and nutritional requirements to 
augment its growth.
    This proposed designation is designed for the conservation of PCEs 
necessary

[[Page 18465]]

to support the life history functions that were the basis for the 
proposal. Because not all life history functions require all the PCEs, 
not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of the two subspecies. In some cases, the PCEs exist as a 
result of ongoing Federal actions. As a result, ongoing Federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.

Criteria Used To Identify Critical Habitat

    We are proposing to designate critical habitat on lands that we 
have determined were occupied at the time of listing and contain the 
features essential to the conservation of Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis. We are also proposing 
to designate one unit of unoccupied habitat (Hill Slough Marsh) for C. 
hydrophilum var. hydrophilum that we have determined is essential to 
the conservation of that subspecies. This same area is also proposed as 
critical habitat for C. mollis ssp. mollis and is occupied by that 
subspecies (both now and at the time of listing).

Criteria for Cirsium hydrophilum var. hydrophilum

    The tidally influenced habitat required for Cirsium hydrophilum 
var. hydrophilum survival has been greatly reduced. Of the estimated 
71,000 ac (29,000 ha) of tidal marsh habitat originally within the 
Suisun Marsh, only about 9,300 ac (3,800 ha) remained as tidal marsh in 
1989 (Dedrick 1989). Most of this area is backed by steep levees, 
allowing for little or no tidally influenced transitional wetland 
habitat required for the subspecies as identified in the PCE section 
above. The distribution of C. hydrophilum var. hydrophilum has also 
been greatly reduced. In 1975, the plant was deemed to be extirpated 
due to a 15-year absence from known locations within the Suisun Marsh. 
Extensive survey work in 1993 identified two populations in the Suisun 
Marsh area and identified the Hill Slough area as containing the 
habitat features essential for the conservation of the subspecies 
(Brenda Grewell, pers comm. 1993).
    The population size of C. hydrophilum var. hydrophilum varies 
greatly from year to year. At the time of listing, the subspecies was 
known from two small areas totaling a few thousand plants occupying an 
area of less than one acre. Survey work done since the time of listing 
has identified an additional population within the same general area as 
the two at the time of listing. These three populations continue to be 
threatened by the same factors discussed in the listing determination: 
Habitat loss, fragmentation, disruption to the hydrologic regime, 
invasive competition from non-native plants, chronic and acute 
pollution from point and non-point sources, insect or pest outbreaks, 
and extended drought. Due to their small size, the populations are also 
subject to increased risk of extirpation from random anthropogenic or 
natural events.
    We have determined that, due to the limited availability of habitat 
for the subspecies, the limited distribution and small population size 
of the subspecies, and the subspecies' poor dispersal capabilities, the 
long-term conservation of this plant is dependent upon the protection 
of habitat supporting all three existing populations, including 
surrounding areas that may contain dormant seed banks and that support 
the PCEs of the subspecies. For the same reasons, the conservation of 
the subspecies also depends on the establishment of at least one 
additional population in appropriate habitat. Hill Slough Marsh is not 
known to be occupied by the subspecies, either now or at the time of 
listing, but based on the area's size and because it supports all the 
PCEs of the plant, it is the area best suited for reintroduction. The 
area is also the subject of ongoing restoration and planning efforts 
conducted under the auspices of the Suisun Protection Plan (SFBCDC 
2006). Accordingly, we have determined that the area of Hill Slough 
Marsh proposed below as Unit 1 for Cirsium hydrophilum var. hydrophilum 
is essential to the conservation of the subspecies.

Criteria for Cordylanthus mollis ssp. mollis

    Only extant occurrences of Cordylanthus mollis ssp. mollis located 
in fully tidal marshes were selected because these areas contain the 
features essential to the conservation of the subspecies and can 
contribute best to the subspecies' recovery. These widely scattered 
populations are dependent on tidal events and native halophytic plant 
communities to complete the subspecies' life cycle. Extant occurrences 
in diked, managed, and muted tidal marshes were not proposed for 
designation, because these areas fail to support the tidal hydrology 
and native plant communities that the subspecies needs for long term 
persistence. Populations outside the designation may still be important 
for recovery of the subspecies, and are still protected under the Act, 
but their habitat is not considered essential to recovery.
    The inclusion of known plant locations interspersed with patches of 
surrounding habitat reflects the dynamic nature of tidal marshes 
(Nichols et al. 1986; Adam 2002) and life cycle of these subspecies.

Mapping

    Geospatial data sets were used within ArcGIS 8.3/ArcMap 
(Environmental Systems Research Institute, Redlands, CA) and analyzed 
to define the areas that best contain the features that are essential 
to the conservation of Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis. Intertidal, emergent estuarine marshes 
(undiked high tidal marshes) were selected from the data sets based on 
tidal channel networks, hydrology, and marsh elevation (refer to PCEs). 
We are not including undiked high tidal marshes that do not contain the 
PCEs or were not essential for the conservation of the subspecies 
because either the area is highly degraded and may not be restorable; 
or the area is small, highly fragmented, or isolated and may provide 
little or no long-term conservation value.
    The occurrence of saline soils were determined from county soil 
surveys (NRCS 2005c). Marsh habitats and soil salinity in high tidal 
marshes will also be continually changing due to the seasonal 
variability of environmental conditions within these areas.
    Based on the above data analysis, the boundaries of proposed 
critical habitat units were digitized at a map scale from 1:750 to 
1:1,500 from digital photographic and wetland-tidal marsh polygon data 
sets (see Methods section). All lands within these delineated 
boundaries are considered critical habitat. Water bodies and 
conveyances (such as tidal sloughs, channels, ditches, canals, and 
ponds) were not removed from the interior of critical habitat units. 
These features are essential for the conservation of the subspecies 
based on hydrologic processes, despite the fact that these plants do 
not normally grow within the banks of such channels and ponds.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing and that contain the 
PCEs may require special management considerations or

[[Page 18466]]

protections. Most of the known occurrences of Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis are threatened by (1) 
tidal wetland conversions to diked, managed, or muted tidal marshes; 
(2) changes to channel water salinity and tidal regimes; (3) mosquito 
abatement activities; (4) marsh invasions by non-native plants; (5) 
plant-eating insects; (6) urban, industrial, and agricultural 
encroachment; (7) impacts from livestock overgrazing ; (8) feral pigs 
(Sus scrofa); and (9) impacts from unauthorized foot and off-road 
vehicle traffic. These combined threats result in the loss and 
fragmentation of suitable habitat for C. hydrophilum var. hydrophilum 
and C. mollis ssp. mollis, which could significantly affect their long-
term survival. Individually, these threats may require special 
management as addressed under the critical habitat unit descriptions 
below.

Proposed Critical Habitat Designation

    We are proposing three units as critical habitat for the Cirsium 
hydrophilum var hydrophilum and five units for Cordylanthus mollis ssp. 
mollis. Table 1 below identifies the approximate area exempt from 
proposed critical habitat for C. mollis ssp. mollis pursuant to section 
4(a)(3) of the Act.

Table 1.--Approximate Area Exempt From Proposed Critical Habitat for Cordylanthus mollis ssp. mollis Pursuant to
                                           Section 4(a)(3) of the Act
----------------------------------------------------------------------------------------------------------------
 
----------------------------------------------------------------------------------------------------------------
Location (unit)                                   Lands containing features
                                                          essential
                                                  Area exempt from critical
                                                     habitat designation
----------------------------------------------------------------------------------------------------------------
Concord Naval Weapons Station (Middle Point           402 ac           163 ha           402 ac           163 ha
 Marsh and western portion of Hastings
 Marsh).....................................
----------------------------------------------------------------------------------------------------------------

Cirsium Hydrophilum var Hydrophilum

    The three proposed units for Cirsium hydrophilum var hydrophilum 
are in Solano County, California. The critical habitat units described 
below contain the PCEs of the subspecies, and may require special 
management. The units proposed as critical habitat are listed in Table 
2.

               Table 2.--Critical Habitat Units Proposed for Cirsium Hydrophilum var. Hydrophilum
             [Area estimates reflect all land within critical habitat boundaries, acres (hectares)]
----------------------------------------------------------------------------------------------------------------
          Critical habitat unit                 State          Land trust          Private            Total
----------------------------------------------------------------------------------------------------------------
Unit 1: Hill Slough Marsh...............         440 (178)             0 (0)           85 (35)         525 (213)
Unit 2: Peytonia Slough Marsh:
    Subunit 2A..........................             0 (0)             0 (0)          120 (49)          120 (49)
    Subunit 2B..........................          243 (98)             0 (0)           50 (20)         293 (118)
Unit 3: Rush Ranch/Grizzly Island                 231 (93)         950 (384)             0 (0)       1,181 (477)
 Wildlife Area..........................
----------------------------------------------------------------------------------------------------------------
        Total...........................         914 (369)         950 (384)         255 (104)       2,119 (857)
----------------------------------------------------------------------------------------------------------------

    Common threats that may require special management in all three 
units include (1) alternations to channel water salinity and tidal 
regimes from the operation of the Suisun Marsh Salinity Control Gates 
that could affect the depth, duration, and frequency of tidal events 
and the degree of salinity in the channel water column; (2) mosquito 
abatement activities (ditching, dredging, and chemical spray 
operations), which may damage the plants directly by trampling and soil 
disturbance, and indirectly by altering hydrologic processes and by 
providing relatively dry ground for additional foot and vehicular 
traffic; (3) rooting, wallowing, trampling, and grazing impacts from 
livestock and feral pigs that could result in damage or loss to C. 
hydrophilum var. hydrophilum colonies or soil disturbance and 
compaction leading to a disruption in natural marsh ecosystem 
processes; (4) increases in the proliferation of non-native invasive 
plants from human-induced soil disturbances leading to the invasives 
outcompeting the C. hydrophilum. var. hydrophilum; and (5) control or 
removal of non-native invasive plants, especially Lepidium latifolium, 
which, if not carefully managed, can damage C. hydrophilum var. 
hydrophilum populations through the injudicious application of 
herbicides; by direct trampling; or through the accidental transport of 
invasive plant seeds to new areas. An additional threat that may 
require special management in Units 1 and 2 includes urban or 
residential encroachment from Suisun City to the north that could 
increase stormwater and wastewater runoff into these units.
    We present brief descriptions of all units and the reasons why they 
contain features that are essential for the conservation of Cirsium 
hydrophilum var. hydrophilum, below. Hydric soils and soil salinity 
described under unit descriptions were based on NRCS (2005a, 2005c, and 
2005d) and USDA (1993, page 194) soil data.
Unit 1: Hill Slough Marsh
    Unit 1 consists of approximately 525 ac (213 ha) located north of 
Potrero Hills between Grizzly Island Road and Highway 12. As discussed 
in the Criteria for Cirsium hydrophylum var. hydrophilum section above, 
this unit is currently unoccupied and was unoccupied at the time of 
listing, but it is essential to the conservation of the subspecies 
because it is the single best area for establishment of an additional 
population. It contains all the necessary PCEs and is the subject of 
on-going restoration and planning efforts within the Suisun Marsh. The 
unit consists of approximately 440 ac (178 ha) of State-owned land 
(Hill Slough Wildlife Area), which is managed by the CDFG, and 85 ac 
(35 ha) of privately owned land. The unit receives tidal inundations 
(PCE 1) irregularly (not daily) (NWI 2005) from Hill Slough and a flood 
control channel along the western unit boundary (PCE 2). Natural tidal 
channel networks are developed within the unit. Approximately 98.4 
percent of the soils in the unit are classified as hydric soils that 
are slightly to moderately saline within the first 3 feet (0.9 m) of 
soil depth (PCE 2). The unit contains the

[[Page 18467]]

PCEs for the subspecies to allow for germination, reproduction, and 
development.
Unit 2: Peytonia Slough Marsh
    Unit 2 consists of approximately 413 ac (167 ha) located adjacent 
to Cordelia Road to the west, Suisun Slough to the east, Peytonia 
Slough to the south, and Suisun City to the north. The unit consists of 
approximately 243 ac (98 ha) of State-owned land (Peytonia Slough 
Ecological Reserve), which is managed by the CDFG, and 170 ac (69 ha) 
of privately owned high tidal marsh. The unit receives tidal 
inundations on a regular-to-irregular basis (NWI 2005) from Peytonia 
Slough (PCE 1); however, the unit is hydrologically bisected into 
subunits 2A and 2B, north to south, by an elevated railroad line, but 
is tidally connected at its southern boundary by Peytonia Slough. 
Natural tidal channel networks exist within the unit. The eastern 
portion of the unit along Suisun Slough is partially diked but is 
tidally influenced through a channel branching off from Peytonia Slough 
(PCE 2). Approximately 99.8 percent of the soils in the unit are 
classified as hydric soils that are moderately saline within the first 
3 feet (0.9 m) of soil depth (PCE 2). The unit contains the PCEs for 
the subspecies to allow for germination, reproduction, and development 
of a seed bank. Cirsium hydrophilum var. hydrophilum occupied the unit 
at the time of listing as identified in the final listing rule (62 FR 
61916).
Unit 3: Rush Ranch/Grizzly Island Wildlife Area
    Unit 3 consists of approximately 1,181 ac (477 ha) located adjacent 
to Suisun Slough to the west, Cutoff and Montezuma Sloughs to the 
south, and Potrero Hills to the North. This unit consists of 231 ac (93 
ha) of State-owned land (the Joice Island portion of Grizzly Island 
Wildlife Area), which is managed by the CDFG, and 950 ac (384 ha) of 
land owned by the Solano Land Trust (local non-profit public land 
trust). The unit receives regular tidal inundations at least once daily 
(NWI 2005) (PCE 1) from the above-mentioned tidal sloughs. Natural 
tidal channel networks exist within the unit (PCE 2). Approximately 
94.6 percent of the soils in the unit are classified as hydric soils 
that are slightly to moderately saline within the first 3 feet (0.9 m) 
of soil depth (PCE 2). The unit contains the PCEs for the subspecies to 
allow for germination, reproduction, and development of a seed bank. 
Another threat not identified above that may require special management 
includes the presence of Rhinocyllus conicus (a non-native biological 
control weevil) or other plant-eating insects that could reduce the 
reproductive potential of Cirsium hydrophilum var. hydrophilum. Cirsium 
hydrophilum var. hydrophilum occupied the unit at the time of listing 
as identified in the final listing rule (62 FR 61916).

Cordylanthus mollis ssp. mollis

    We are proposing five units as critical habitat for Cordylanthus 
mollis ssp. mollis in Contra Costa, Napa, and Solano Counties, 
California. The critical habitat areas described below constitute areas 
that contain the PCEs and that may require special management. The 
units proposed as critical habitat are listed in Table 3. Contra Costa, 
Napa, and Solano Counties have approximately 22 ac (9 ha), 408 ac (165 
ha), and 1,884 ac (763 ha) of proposed critical habitat, respectively.
    Common threats that may require special management in all five 
units include (1) mosquito abatement activities (ditching, dredging, 
and chemical spray operations), which may damage the plants directly by 
trampling and soil disturbance, and indirectly by altering hydrologic 
processes and by providing relatively dry ground for additional foot 
and vehicular traffic; (2) general foot and off-road vehicle traffic 
through C. mollis ssp. mollis populations that could result in their 
damage and loss in impacted areas; (3) increases in the proliferation 
of non-native invasive plants from human-induced soil disturbances 
leading to the invasives outcompeting the C. mollis ssp. mollis; (4) 
control or removal of non-native invasive plants, especially Lepidium 
latifolium, which, if not carefully managed, can damage C. mollis ssp. 
mollis populations through the injudicious application of herbicides; 
by direct trampling; or through the accidental transport of invasive 
plant seeds to new areas; and (5) presence of Lipographis fenestrella 
(a moth) larvae that could reduce the reproductive potential of C. 
mollis ssp. mollis through flower, fruit, and seed predation.
    Common threats that may require special management in Units 2 and 4 
in Suisun Marsh include (1) alternations to channel water salinity and 
tidal regimes from the operation of the Suisun Marsh Salinity Control 
Gates that could affect the depth, duration, and frequency of tidal 
events and the degree of salinity in the channel water column; and (2) 
rooting, wallowing, trampling, and grazing impacts from livestock and 
feral pigs that could result in damage or loss to C. mollis ssp. mollis 
populations or soil disturbance and compaction leading to a disruption 
in natural marsh ecosystem processes. A common threat that may require 
special management in Units 3 and 5 is contamination from bay oil 
spills that could directly impact C. mollis ssp. mollis populations and 
seed banks.
    We present brief descriptions of all units and the reasons why they 
are essential for the conservation of Cordylanthus mollis ssp. mollis 
below. Hydric soils and soil salinity described under unit descriptions 
were based on NRCS (2005a, 2005c, and 2005d) and USDA (1993, page 194) 
soil data.

                                      Table 3.--Critical Habitat Units Proposed for Cordylanthus mollis ssp. mollis
                                 [Area estimates reflect all land within critical habitat boundaries, acres (hectares)]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Critical habitat unit                            State          County/City       Land trust          Private            Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Fagan Slough Marsh....................................         320 (130)            15 (6)             0 (0)           72 (29)         407 (165)
Unit 2: Hill Slough Marsh.....................................         440 (178)             0 (0)             0 (0)           85 (35)         525 (213)
Unit 3: Point Pinole Shoreline................................             9 (4)            13 (5)             0 (0)             0 (0)            22 (9)
Unit 4: Rush Ranch/Grizzly Island Wildlife Area...............          231 (93)             0 (0)         950 (384)             0 (0)       1,181 (477)
Unit 5: Southampton Marsh.....................................          178 (72)             0 (0)             0 (0)             0 (0)          178 (72)
ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½ï¿½
    Total.....................................................       1,178 (477)           28 (11)         950 (384)          157 (64)       2,313 (936)
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 18468]]

Unit 1: Fagan Slough Marsh (Napa County)
    Unit 1 consists of approximately 407 ac (165 ha) located adjacent 
to the Napa River to the west, Napa County Airport to the east, Fagan 
Slough to the south, and Steamboat Slough to the north. This unit 
consists of 320 ac (130 ha) of State-owned land (Fagan Slough 
Ecological Reserve), which is managed by the CDFG, 6 ac (2 ha) of 
County-owned land, 9 ac (4 ha) of land owned by the City of Napa, and 
72 ac (29 ha) of privately owned land. The unit receives tidal 
inundations regularly (NWI 2005) from the above-mentioned tidal sloughs 
and the Napa River (PCE 1, PCE 2). Natural tidal channel networks are 
developed within the unit. Approximately 98 percent of the soils in the 
unit are classified as hydric soils that are slightly saline within the 
first 3 feet (0.9 m) of soil depth (PCE 2). This unit contains native 
plant communities of appropriate height and sufficient host plants to 
provide the subspecies with the environmental and nutritional 
requirements needed for its survival (PCE 3, PCE 4). The unit contains 
the PCEs for the subspecies to allow for germination, reproduction, and 
development of a seed bank. Cordylanthus mollis ssp. mollis occupied 
the unit at the time of listing as identified in the final listing rule 
(62 FR 61916).
Unit 2: Hill Slough Marsh (Solano County)
    Unit 2 for Cordylanthus mollis ssp. mollis consists of 
approximately 525 ac (213 ha) located north of Potrero Hills between 
Grizzly Island Road and Highway 12. The unit consists of approximately 
440 ac (178 ha) of State-owned land (Hill Slough Wildlife Area), which 
is managed by the CDFG, and 85 ac (35 ha) of privately owned land. The 
unit receives tidal inundations irregularly (not daily) (NWI 2005) from 
Hill Slough and a flood control channel along the western unit boundary 
(PCE 1, PCE 2). Natural tidal channel networks are developed within the 
unit. Approximately 98.4 percent of the soils in the unit are 
classified as hydric soils that are slightly to moderately saline 
within the first 3 feet (0.9 m) of soil depth (PCE 2). This unit 
contains native plant communities of appropriate height and sufficient 
host plants to provide the subspecies with the environmental and 
nutritional requirements needed for its survival (PCE 3, PCE 4). The 
unit contains the PCEs for the subspecies to allow for germination, 
reproduction, and development of a seed bank. C. mollis ssp. mollis 
occupied the unit at the time of listing as identified in the final 
listing rule (62 FR 61916).
Unit 3: Point Pinole Shoreline (Contra Costa County)
    Unit 3 consists of approximately 22 ac (9 ha) located along the 
Contra Costa shoreline in San Pablo Bay just east of Point Pinole. This 
unit consists of 13 ac (5 ha) of County-owned land (Point Pinole 
Regional Shoreline Park), which is managed by the EBRPD, and 9 ac (4 
ha) of State-owned land. The unit receives tidal inundations on a 
regular basis (NWI 2005) from natural and artificial (dredged) tidal 
channels within the unit (PCE 1, PCE 2). Approximately 23.8 percent of 
the soils in the unit are classified as hydric soils that are 
moderately saline within the first 3 feet (0.9 m) of soil depth (PCE 
2). This unit contains native plant communities of appropriate height 
and sufficient host plants to provide the subspecies with the 
environmental and nutritional requirements needed for its survival (PCE 
3, PCE 4). The unit contains the PCEs for the subspecies to allow for 
germination, reproduction, and development of a seed bank. Another 
threat in this unit that may require special management is industrial 
or commercial encroachment from the south that could increase 
stormwater and wastewater runoff into the unit. Cordylanthus mollis 
ssp. mollis occupied the unit at the time of listing as identified in 
the final listing rule (62 FR 61916).
Unit 4: Rush Ranch/Grizzly Island Wildlife Area (Solano County)
    Unit 4 for Cordylanthus mollis ssp. mollis consists of 
approximately 1,181 ac (477 ha) located adjacent to Suisun Slough to 
the west, Cutoff and Montezuma Sloughs to the south, and Potrero Hills 
to the North. This unit consists of 231 ac (93 ha) of State-owned land 
(Joice Island portion of the Grizzly Island Wildlife Area), which is 
managed by the CDFG, and 950 ac (384 ha) of land owned and managed by 
the Solano Land Trust (local non-profit public land trust). The unit 
receives tidal inundations regularly (at least once daily) (NWI 2005) 
from the above-mentioned tidal sloughs (PCE 1, PCE 2). Natural tidal 
channel networks are developed within the unit. Approximately 94.6 
percent of the soils in the unit are classified as hydric soils that 
are slightly to moderately saline within the first 3 feet (0.9 m) of 
soil depth (PCE 2). This unit contains native plant communities of 
appropriate height and sufficient host plants to provide the subspecies 
with the environmental and nutritional requirements needed for its 
survival (PCE 3, PCE 4). The unit contains the PCEs for the subspecies 
to allow for germination, reproduction, and development of a seed bank. 
C. mollis ssp. mollis occupied the unit at the time of listing as 
identified in the final listing rule (62 FR 61916).
Unit 5: Southampton Marsh (Solano County)
    Unit 5 consists of approximately 178 ac (72 ha) of State-owned land 
managed by CDPR as a wetland natural preserve (CDPR 1991). The unit is 
located in the Benicia State Recreational Area along Interstate Highway 
780 and just northwest of the City of Benicia. The unit receives tidal 
inundations on a regular-to-irregular basis (NWI 2005) from natural and 
artificial (dredged) tidal channels within the unit (PCE 1, PCE 2). 
Approximately 76.5 percent of the soils in the unit are classified as 
hydric soils that are moderately saline within the first 3 feet (0.9 m) 
of soil depth (PCE 2). This unit contains native plant communities of 
appropriate height and sufficient host plants to provide the subspecies 
with the environmental and nutritional requirements needed for its 
survival (PCE 3, PCE 4). Approximately 22 ac (9 ha) of bay fill is 
located in the northwestern section of the unit adjacent to the paved 
park roadway. This area is associated with ongoing marsh restoration 
efforts by the CDPR. The unit contains the PCEs for the subspecies to 
allow for germination, reproduction, and development of a seed bank. 
Another threat in this unit that may require special management is 
urban or residential encroachment from the north that could increase 
stormwater and wastewater runoff into the unit. Cordylanthus mollis 
ssp. mollis occupied the unit at the time of listing as identified in 
the final listing rule (62 FR 61916).

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 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit

[[Page 18469]]

Court of Appeals have invalidated this definition. Pursuant to current 
national policy and the statutory provisions of the Act, destruction or 
adverse modification is determined on the basis of whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is 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. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of the 
conference procedure is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action as a 
result of the section 7(a)(2) compliance process, should those species 
be listed or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report; while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion 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)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that may affect, but are likely to adversely affect, listed 
species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or 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 
jeopardy to the listed species or 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 a new 
species is listed or critical habitat is subsequently designated that 
may be affected 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 with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect Cirsium hydrophilum var. 
hydrophilum or Cordylanthus mollis ssp. mollis or their designated 
critical habitat will require section 7 consultation under the Act. 
Activities on State, tribal, local or private lands requiring a Federal 
permit (such as a permit from the Corps under section 404 of the Clean 
Water Act or a permit under section 10(a)(1)(B) of the Act from the 
Service) or involving some other Federal action (such as funding from 
the Federal Highway Administration, Federal Aviation Administration, or 
the Federal Emergency Management Agency) will also be subject to the 
section 7 consultation process. Federal actions not affecting listed 
species or critical habitat, and actions on State, Tribal, local or 
private lands that are not federally funded, authorized, or permitted, 
do not require section 7 consultations. In instances where emergency 
levee repair or maintenance activities are required and may affect C. 
hydrophilum var. hydrophilum or C. mollis ssp. mollis or their proposed 
critical habitat, we have notified the affected agencies and flood 
control districts that those emergency repair and maintenance 
activities would constitute an emergency consultation as identified 
under the Federal Code of Regulations (50 CFR 402.05). As a result, 
such emergency repair and maintenance activities may proceed prior to 
consulting with the Service.

Application of the Jeopardy and Adverse Modification Standards for 
Actions involving Effects to Cirsium hydrophilum var. hydrophilum or 
Cordylanthus mollis ssp. mollis and their Critical Habitat

Jeopardy Standard
    Prior to and following designation of critical habitat, the Service 
has applied an analytical framework for Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis jeopardy analyses that 
relies heavily on the importance of core area populations to the 
survival and recovery of C. hydrophilum var. hydrophilum or C. mollis 
ssp. mollis or both. The section 7(a)(2) analysis is focused not only 
on

[[Page 18470]]

these populations but also on the habitat conditions necessary to 
support them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of Cirsium hydrophilum var. hydrophilum and/or Cordylanthus 
mollis ssp. mollis in a qualitative fashion without making distinctions 
between what is necessary for survival and what is necessary for 
recovery. Generally, if a proposed Federal action is incompatible with 
the viability of the affected core area population(s), inclusive of 
associated habitat conditions, a jeopardy finding is considered to be 
warranted, because of the relationship of each core area population to 
the survival and recovery of the species as a whole.
Adverse Modification Standard
    The analytical framework described in the Director's December 9, 
2004, memorandum is used to complete section 7(a)(2) analyses for 
Federal actions affecting Cirsium hydrophilum var. hydrophilum or 
Cordylanthus mollis ssp. mollis critical habitat. The key factor 
related to the adverse modification determination is whether, with 
implementation of the proposed Federal action, the affected critical 
habitat would remain functional (or retain the current ability for the 
primary constituent elements to be functionally established) to serve 
the intended conservation role for the species. Generally, the 
conservation role of C. hydrophilum var. hydrophilum and C. mollis ssp. 
mollis critical habitat units is to support viable core area 
populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may 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 the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for Cirsium hydrophilum var. hydrophilum and/or 
Cordylanthus mollis ssp. mollis is appreciably reduced. Activities 
that, when carried out, funded, or authorized by a Federal agency, may 
affect critical habitat and therefore result in consultation for C. 
hydrophilum var. hydrophilum or C. mollis ssp. mollis or both include, 
but are not limited to:
    (1) Actions that would degrade natural tidal hydrology in undiked 
high tidal marshes supporting Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis populations. Such actions could 
include, but are not limited to: The construction of new levees, tide 
gates, mosquito abatement ditches, flash board water control 
structures, or other marsh impoundment and drainage structures; urban 
flood control and channelization projects; and human-induced changes to 
natural saltwater and freshwater inflows into undiked high tidal 
marshes. These actions could limit the geomorphic processes associated 
with natural tidal channel networks; alter soil and water chemistry 
affecting the composition of tidal marsh plant communities; and reduce 
vertical marsh accretion affecting the range of tidal inundations, 
especially in relation to local sea level rise.
    (2) Actions that would degrade or destroy Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis habitat. Such actions 
could include, but are not limited to, domestic and feral livestock 
impacts; unauthorized foot and off-road vehicle traffic; and 
agricultural, urban, and commercial developments. These actions could 
alter marsh ecosystem form and function by isolating and fragmenting 
tidal marsh habitat leading to the further isolation of C. hydrophilum 
var. hydrophilum and C. mollis ssp. mollis populations; introduce or 
encourage the spread and establishment of non-native invasive plants; 
increase human-induced erosion and sedimentation rates; boost trail 
development and usage that may impact species populations; and lower 
water quality because of an increase in stormwater and wastewater 
runoff.
    (3) Actions that would remove or destroy Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis plants. Such actions 
could include, but are not limited to: Excavating, grading, plowing, 
mowing, burning, grazing, farming, or chemical spraying; unauthorized 
foot and off-road vehicle traffic, and the spread of non-native 
invasion plants in occupied, undiked high tidal marshes.
    (4) Actions completed by the U.S. Army Corps of Engineers (for 
example, under section 404 of the Clean Water Act of 1977 and under 
section 10 of the Rivers and Harbor Act of 1899), Environmental 
Protection Agency, and other Federal, State, or local regulatory 
agencies that would reduce the quantity and quality of undiked high 
tidal marsh habitat supporting Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis populations. Such actions could 
include, but are not limited to: The construction of new levees, 
agricultural irrigation systems, boat ramps and docks, wharfs, marinas, 
bank revetments, permanent mooring structures, aids to navigation, and 
dredge and fill activities; roadway and highway projects (such as road 
widening and new road construction); unauthorized discharge of non-
point source pollutants; stream and tidal channel alternations; and 
other water-dependent projects or activities. These actions could 
impact supporting habitat by lowering tidal marsh water quality, 
decreasing saltwater and freshwater inflows, and causing direct loss of 
tidal marshes through fill and removal activities.
    All proposed critical habitat units, as described above, are within 
the geographic range of Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis, respectively, or were occupied by the 
subspecies at the time of listing except for Unit 1 for C. hydrophilum 
var. hydrophilum, which is considered unoccupied by that subspecies. 
The same area is also proposed as Unit 2 for C. mollis ssp. mollis, 
however, and it is occupied by that subspecies. We consider all of the 
units included in this proposed designation to contain the features 
essential to the conservation of these subspecies.
    All of the units proposed as critical habitat, as well as areas 
that may be excluded or not included, contain features essential to the 
conservation of Cirsium hydrophilum var. hydrophilum and Cordylanthus 
mollis ssp. mollis. Federal agencies already consult with us on 
activities in areas currently occupied by C. hydrophilum var. 
hydrophilum and C. mollis ssp. mollis, or if the species may be 
affected by the action, to ensure that their actions do not jeopardize 
the continued existence of C. hydrophilum var. hydrophilum or C. mollis 
ssp. mollis or both.

Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act

    There are multiple ways to provide management for species' habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management, as can lack of pressure for 
change, such as areas too remote for anthropogenic disturbance. 
Finally, State, local, or private management plans as well as 
management under Federal agencies jurisdictions can provide protection 
and management to avoid the need for designation of critical habitat. 
When we consider a plan to determine its adequacy in protecting 
habitat, we consider whether the plan, as a whole

[[Page 18471]]

will provide the same level of protection that designation of critical 
habitat would provide. The plan need not lead to exactly the same 
result as a designation in every individual application, as long as the 
protection it provides is equivalent, overall. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the PCEs that is at least equivalent to 
that provided by a critical habitat designation, and whether there is a 
reasonable expectation that the management, protection, or enhancement 
actions will continue into the foreseeable future. Each review is 
particular to the species and the plan, and some plans may be adequate 
for some species and inadequate for others.
    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 after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if [s]he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless [s]he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the Secretary is afforded broad discretion and the 
Congressional record is clear that in making a determination under the 
section the Secretary has discretion as to which factors and how much 
weight will be given to any factor.
    Under section 4(b)(2), in considering whether to exclude a 
particular area from the designation, we must identify the benefits of 
including the area in the designation, identify the benefits of 
excluding the area from the designation, determine whether the benefits 
of exclusion outweigh the benefits of inclusion. If an exclusion is 
contemplated, then we must determine whether excluding the area would 
result in the extinction of the species. In the following sections, we 
address a number of general issues that are relevant to the exclusions 
we considered.
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete, by November 17, 2001, an Integrated Natural Resource 
Management Plan (INRMP). An INRMP integrates implementation of the 
military mission of the installation with stewardship of the natural 
resources found on the base. 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. Among other things, each INRMP must, to the 
extent appropriate and applicable, provide for fish and wildlife 
management, fish and wildlife habitat enhancement or modification, 
wetland protection, enhancement, and restoration where necessary to 
support fish and wildlife and enforcement of applicable natural 
resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the ESA to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the ESA (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate 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 integrated natural resources management 
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if 
the Secretary determines in writing that such plan provides a benefit 
to the species for which critical habitat is proposed for 
designation.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. INRMPs developed by 
military installations located within the range of the proposed 
critical habitat designation for Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis were analyzed for exemption under 
the authority of 4(a)(3) of the Act.

Concord Naval Weapons Station

    Approximately 402 ac (163 ha) of habitat Cordylanthus mollis ssp. 
mollis occurring in habitats within or adjacent to the USDN, Naval 
Weapons Station, Seal Beach Detachment, Concord in Contra Costa County, 
California (referred to as the Concord Naval Weapons Station (CNWS) in 
the proposed rule) is exempted from this proposed critical habitat 
designation. The USDN has prepared and implemented an INRMP at the CNWS 
as of March 2002 (USDN 2002). The Inland and Tidal Areas are the 
primary land areas at the CNWS covered under the INRMP. In addition to 
the INRMP, the Navy has entered into a Memorandum of Understanding 
(MOU) (USDN 2002 Appendix D) in 1984 with the Service to establish a 
wetland preserve in the Tidal Area (East, Hastings, Middle Point, North 
Area K, and Pier Marshes) and all areas in the outlying six islands 
(Freeman, Middle Ground, Roe, Ryder, Seal, and Snag Islands). Under the 
MOU, the USDN, in cooperation with the Service, will (1) prepare and 
implement a management plan for the preserve to promote the recovery 
and preservation of threatened and endangered species and wetland 
resources; (2) prepare additional plans for the management of these 
subspecies in consonance with the management plan for the preserve, (3) 
conduct studies and surveys within funding and personnel availability 
on fish and wildlife resources in the preserve; (4) give priority to 
the protection and management of the preserve; and (5) prevent, as much 
as possible, any military activity that could adversely impact or 
otherwise be detrimental to the wetland resources in the preserve.
    All Cordylanthus mollis ssp. mollis populations at the CNWS are 
restricted to the Tidal Area. Tidal Area management objectives under 
the INRMP for the species include (1) restricting access to tidal 
marshes to reduce potential human-induced impacts, except for the 
purpose of approved research; (2) maintaining tidal marshes in 
accordance with the 1984 MOU; (3) completing botanical surveys; (4) 
monitoring populations and population trends to determine effectiveness 
of natural resources management goals; and (5) reviewing proposed 
military activities and development to ensure the conservation of the 
subspecies. The USDN signed an Indefinite Use Permit in 1999 (USDN 2002 
Appendix C) with the U.S. Department of the Army for use of the Tidal 
Area. The INRMP will help Army personnel continue the implementation of 
established management strategies designed to conserve the natural 
resources in the Tidal Area. Therefore, we are exempting critical 
habitat for Cordylanthus mollis ssp. mollis on this installation 
pursuant to section 4(a)(3) of the Act.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995) and at least 80 percent of all endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were

[[Page 18472]]

found almost exclusively on Federal lands (90-100 percent of their 
known occurrences restricted to Federal lands) and that 50 percent of 
federally listed species are not known to occur on Federal lands at 
all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998, Crouse et al. 2002, James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the ``4C's'' philosophy--conservation through 
communication, consultation, and cooperation. This philosophy is 
evident in Service programs such as Habitat Conservation Plans (HCPs), 
Safe Harbors, Candidate Conservation Agreements with Assurances 
(CCAAs), and cooperative conservation challenge cost-share grants. Many 
private landowners, however, are wary of the possible consequences of 
encouraging endangered species to their property, and there is mounting 
evidence that some regulatory actions by the Federal government, while 
well-intentioned and required by law, can under certain circumstances 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996, Bean 2002, Conner and Mathews 
2002, James 2002, Koch 2002, Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability, resulting in anti-conservation incentives because 
maintaining habitats that harbor endangered species represents a risk 
to future economic opportunities (Main et al. 1999, Brook et al. 2003).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation (triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act) can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999, Bean 
2002, Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002).
    The Service believes that the judicious use of excluding specific 
areas of non-Federally owned lands from critical habitat designations 
can contribute to species recovery and provide a superior level of 
conservation than designation of critical habitat alone. For example, 
less than 17 percent of Hawaii is federally owned, but the state is 
home to more than 24 percent of all federally listed species, most of 
which will not recover without State and private landowner cooperation. 
On the island of Lanai, Castle and Cooke Resorts, LLC, which owns 99 
percent of the island, entered into a conservation agreement with the 
Service. The conservation agreement provides conservation benefits to 
target species through management actions that remove threats (such as 
axis deer, mouflon sheep, rats, invasive non-native plants) from the 
Lanaihale and East Lanai Regions. Specific management actions include 
fire control measures, nursery propagation of native flora (including 
the target species) and planting of such flora. These actions will 
significantly improve the habitat for all currently occurring species. 
Due to the low likelihood of a Federal nexus on the island, we believe 
that the benefits of excluding the lands covered by the MOA exceeded 
the benefits of including them. As stated in the final critical habitat 
rule for endangered plants on the Island of Lanai:

    On Lanai, simply preventing ``harmful activities'' will not slow 
the extinction of listed plant species. Where consistent with the 
discretion provided by the Act, the Service believes it is necessary 
to implement policies that provide positive incentives to private 
landowners to voluntarily conserve natural resources and that remove 
or reduce disincentives to conservation. While the impact of 
providing these incentives may be modest in economic terms, they can 
be significant in terms of conservation benefits that can stem from 
the cooperation of the landowner. The continued participation of 
Castle and Cooke Resorts, LLC, in the existing Lanai Forest and 
Watershed Partnership and other voluntary conservation agreements 
will greatly enhance the Service's ability to further the recovery 
of these endangered plants.

    Secretary Norton's ``4C's'' philosophy--conservation through 
communication, consultation, and cooperation--is the foundation for 
developing the tools of conservation. These tools include conservation 
grants, funding for Partners for Fish and Wildlife Program, the Coastal 
Program, and cooperative-conservation challenge cost-share grants. Our 
Private Stewardship Grant program and Landowner Incentive Program 
provide assistance to private land owners in their voluntary efforts to 
protect threatened, imperiled, and endangered species, including the 
development and implementation of HCPs.
    Conservation agreements with non-Federal landowners (such as HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
species protections beyond those available through section 7 
consultations. In the past decade we have encouraged non-Federal 
landowners to enter into conservation agreements, based on a view that 
we can achieve greater species conservation on non-Federal land through 
such partnerships than we can through coercive methods (61 FR 63854; 
December 2, 1996).
    We recognize that conservation efforts are underway that may allow 
us to exclude some areas. Should information become available during 
the public comment period on management plans or strategies that would 
provide benefit to the species, we will analyze the information and 
make a determination of the appropriateness of such an exclusion in our 
final designation.

General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process

    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation pursuant to section 7 of the Act to 
ensure that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological

[[Page 18473]]

features essential to the conservation of the species or unoccupied 
areas that are essential to the conservation of the species are not 
eroded. Critical habitat designation alone, however, does not require 
specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
reasonable and prudent alternatives to the proposed Federal action 
would only be issued when the biological opinion results in a jeopardy 
or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service equated the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat. The Court ruled that the Service could no longer equate the 
two standards and that adverse modification evaluations require 
consideration of impacts on the recovery of species. Thus, under the 
Gifford Pinchot decision, critical habitat designations may provide 
greater benefits to the recovery of a species. However, we believe the 
conservation achieved through implementing HCPs or other habitat 
management plans is typically greater than would be achieved through 
multiple site-by-site, project-by-project, section 7 consultations 
involving consideration of critical habitat. Management plans commit 
resources to implement long-term management and protection to 
particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed project. 
Thus, any HCP or management plan that considers enhancement or recovery 
as the management standard will always provide as much or more benefit 
than a consultation for critical habitat designation conducted under 
the standards required by the Ninth Circuit in the Gifford Pinchot 
decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.

Educational Benefits of Critical Habitat

    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis. In general the educational benefit of a critical habitat 
designation always exists, although in some cases it may be redundant 
with other educational effects. For example, HCPs have significant 
public input and may largely duplicate the educational benefit of a 
critical habitat designation. This benefit is closely related to a 
second, more indirect benefit: that designation of critical habitat 
would inform State agencies and local governments about areas that 
could be conserved under State laws or local ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are proposing in this rule because these areas 
are included in this proposed rule as having habitat containing the 
features essential to the conservation of the species. Consequently, we 
believe that the informational benefits are already provided even 
though these areas are being proposed for exclusion from the critical 
habitat designation. Additionally, the purpose normally served by the 
designation of informing State agencies and local governments about 
areas that would benefit from protection and enhancement of habitat for 
Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis is already well established among State and local governments, 
and Federal agencies in those areas that we are proposing to exclude 
from critical habitat in this rule on the basis of other existing 
habitat management protections.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for Cirsium hydrophilum var. hydrophilum and Cordylanthus mollis ssp. 
mollis is being prepared. We will announce the availability of the 
draft economic analysis as soon as it is completed, at which time we 
will seek public review and comment. At that time, copies of the draft 
economic analysis will be available for downloading from the Internet 
at http://www.fws.gov/sacramento/, or by contacting the Sacramento Fish 
and Wildlife Office directly (see ADDRESSES section).

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send copies of this proposed 
rule to these peer reviewers immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

Clarity of the Rule

    Executive Order (E.O.) 12866 requires each agency to write 
regulations and notices that are easy to understand. We invite your 
comments on how to make this proposed rule easier to understand, 
including answers to questions such as

[[Page 18474]]

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

Required Determinations

Regulatory Planning and Review

    In accordance with E.O. 12866, this document is a significant rule 
in that it may raise novel legal and policy issues, but it is not 
anticipated to have an annual effect on the economy of $100 million or 
more or affect the economy in a material way. Due to the tight timeline 
for publication in the Federal Register, the Office of Management and 
Budget (OMB) has not formally reviewed this rule. We are preparing a 
draft economic analysis of this proposed action, which will be 
available for public comment, to determine the economic consequences of 
designating the specific area as critical habitat. This economic 
analysis also will be used to determine compliance with E.O. 12866, 
Regulatory Flexibility Act, Small Business Regulatory Enforcement 
Fairness Act, and E.O. 12630.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. The draft economic analysis can be obtained from the internet 
Web site at http://www.fws.gov/sacramento/ or by contacting the 
Sacramento Fish and Wildlife Office directly (see ADDRESSES section).

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared pursuant to section 4(b)(2) of the ESA 
and E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 
timeframe. The Service will include with the notice of availability, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. The Service has concluded that deferring 
the RFA finding until completion of the draft economic analysis is 
necessary to meet the purposes and requirements of the RFA. Deferring 
the RFA finding in this manner will ensure that the Service makes a 
sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an E.O. (E.O. 13211) on 
regulations that significantly affect energy supply, distribution, and 
use. Executive Order 13211 requires agencies to prepare Statements of 
Energy Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for Cirsium hydrophilum var. hydrophilum and 
Cordylanthus mollis ssp. mollis is not a significant regulatory action 
under E.O. 12866, and it is not expected to significantly affect energy 
supplies, distribution, or use. Therefore, this action is not a 
significant energy action and no Statement of Energy Effects is 
required.

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 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. While non-Federal entities that receive 
Federal

[[Page 18475]]

funding, assistance, or permits, or that otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat, 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) We do not believe that this rule will significantly or uniquely 
affect small governments because only 1.2 percent (27.9 ac/11.4 ha) of 
the total proposed critical habitat designation for Cordylanthus mollis 
ssp. mollis is owned by small government entities and none for Cirsium 
hydrophilum var. hydrophilum. These entities include Napa County and 
the City of Napa, California. As such, Small Government Agency Plan is 
not required. We will, however, further evaluate this issue as we 
conduct our economic analysis and revise this assessment if 
appropriate.

Federalism

    In accordance with E.O. 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 proposed critical habitat 
designation with appropriate State resource agencies in California. The 
designation of critical habitat in areas currently occupied by Cirsium 
hydrophilum var. hydrophilum and Cordylanthus mollis ssp. mollis 
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 
subspecies are more clearly defined, and the primary constituent 
elements of the habitat necessary to the survival of the subspecies 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 E.O. 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 proposed designating critical habitat in accordance with the 
provisions of the Endangered Species Act. This proposed rule uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of Cirsium hydrophilum var. hydrophilum 
and Cordylanthus mollis ssp. mollis.

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), E.O. 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 occupied at the time of listing that contain 
the features essential for the conservation of Cirsium hydrophilum var. 
hydrophilum and Cordylanthus mollis ssp. mollis. Therefore, designation 
of critical habitat for C. hydrophilum var. hydrophilum and C. mollis 
ssp. mollis has not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Sacramento Fish and 
Wildlife Office (see ADDRESSES section).

Author(s)

    The primary author of this package is the Oregon Fish and Wildlife 
Office, U.S. Fish and Wildlife Service, Portland, Oregon, and staff 
from the Sacramento (CA) Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.12(h), revise the entries for Cirsium hydrophilum 
var. hydrophilum (Suisun thistle) and Cordylanthus mollis ssp. mollis 
(soft bird's-beak) under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 18476]]



--------------------------------------------------------------------------------------------------------------------------------------------------------
                          Species
-----------------------------------------------------------     Historic range             Family           Status       When      Critical     Special
          Scientific name                 Common name                                                                   listed      habitat      rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
          FLOWERING PLANTS
 
                                                                      * * * * * * *
Cirsium hydrophilum var.             Suisun thistle.......  U.S.A. (CA)..........  Asteraceae...........          E         627    17.96(a)          NA
 hydrophilum.
 
                                                                      * * * * * * *
Cordylanthus mollis var. ssp.        Soft bird's-beak.....  U.S.A. (CA)..........  Scrophulariaceae.....          E         627    17.96(a)         NA.
 mollis.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    3. Amend Sec.  17.96(a), by adding an entry for Cirsium hydrophilum 
var. hydrophilum (Suisun thistle) in alphabetical order under family 
Asteraceae and an entry for Cordylanthus mollis ssp. mollis (soft 
bird's-beak) in alphabetical order under family Scrophulariaceae to 
read as follows:


Sec.  17.96  Critical habitat'plants.

    (a) Flowering plants.
* * * * *

Family Asteraceae: Cirsium hydrophilum var. hydrophilum (Suisun 
thistle)

    (1) Critical habitat units are depicted for Solano County, 
California, on the maps below.
    (2) The primary constituent elements (PCEs) of critical habitat for 
Cirsium hydrophilum var. hydrophilum are the habitat components that 
provide:
    (i) Tidally influenced marsh areas (intertidal emergent estuarine 
marshes) bounded on the seaward edge by the mean high water line and on 
the landward edge by a marsh-upland ecotone; and containing channel 
networks influenced by freshwater and saltwater hydrology and 
exhibiting full natural tidal inundations to allow for channel 
development and migration through erosional and depositional processes 
(such as channel undercutting, bank slumping, and sedimentation) during 
daily flood and ebb flows and seasonal storm events.
    (ii) Areas associated with PCE 1 that are between the bank and high 
water mark of natural tidal channels, along the banks of tidally 
influenced canals or ditches, or within tidally influenced floodplains 
that contain hydric soils that are slightly to moderately saline (4 to 
16 decisiemens/meter (dS/m)) within the first 3 ft (0.9 m) of soil 
depth.
    (3) Critical habitat does not include man-made structures and the 
land they occupy, existing on the effective date of this rule and not 
containing one or more of the PCEs, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Data layers defining Solano County map units were created on a 
base map using CDWR color mosaic 1:9,600 scale digital aerial 
photographs for Suisun Bay captured June 16, 2003 (CDFG 2005c). 
Critical habitat units were then mapped using Universal Transverse 
Mercator (UTM) zone 10, North American Datum (NAD) 1983 coordinates.
    (5) Note: Map 1 (Index map for Cirsium hydrophilum var. 
hydrophilum) follows:
BILLING CODE 4310-55-P

[[Page 18477]]

[GRAPHIC] [TIFF OMITTED] TP11AP06.001

BILLING CODE 4310-55-C

[[Page 18478]]

    (6) Unit 1 for Cirsium hydrophilum var. hydrophilum: Hill Slough 
Marsh, Solano County, California.
    (i) Unit 1: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 586821, 4231248; 586825, 4231260; 586834, 4231272; 
586848, 4231278; 586868, 4231280; 586930, 4231305; 586934, 4231417; 
586934, 4231457; 586933, 4231517; 586936, 4231569; 586931, 4231638; 
586933, 4231730; 586930, 4231824; 586927, 4231988; 586932, 4232511; 
586935, 4232541; 587032, 4232539; 587031, 4232513; 587025, 4232474; 
587022, 4232447; 587028, 4232423; 587045, 4232382; 587207, 4232226; 
587186, 4232194; 587189, 4232174; 587211, 4232155; 587232, 4232152; 
587246, 4232165; 587275, 4232169; 587294, 4232159; 587307, 4232136; 
587314, 4232107; 587310, 4232094; 587350, 4232087; 587391, 4232079; 
587427, 4232061; 587470, 4232043; 587490, 4232041; 587513, 4232049; 
587544, 4232041; 587602, 4232017; 587641, 4231995; 587689, 4231981; 
587738, 4231977; 587763, 4231981; 587776, 4231987; 587790, 4231996; 
587803, 4232008; 587814, 4232019; 587826, 4232031; 587844, 4232043; 
587859, 4232051; 587882, 4232067; 587897, 4232078; 587933, 4232080; 
587944, 4232075; 587951, 4232066; 587957, 4232059; 587985, 4232048; 
588000, 4232042; 588016, 4232041; 588028, 4232043; 588041, 4232044; 
588050, 4232058; 588051, 4232075; 588048, 4232095; 588055, 4232133; 
588083, 4232223; 588094, 4232243; 588105, 4232252; 588114, 4232256; 
588124, 4232254; 588136, 4232249; 588141, 4232237; 588137, 4232225; 
588132, 4232212; 588149, 4232197; 588157, 4232186; 588162, 4232179; 
588182, 4232158; 588195, 4232146; 588218, 4232130; 588228, 4232126; 
588241, 4232122; 588245, 4232122; 588255, 4232141; 588259, 4232149; 
588270, 4232160; 588277, 4232165; 588284, 4232175; 588287, 4232187; 
588287, 4232197; 588290, 4232212; 588295, 4232222; 588306, 4232225; 
588311, 4232235; 588316, 4232250; 588324, 4232254; 588334, 4232254; 
588340, 4232249; 588339, 4232240; 588333, 4232226; 588333, 4232216; 
588336, 4232206; 588345, 4232198; 588353, 4232189; 588360, 4232187; 
588379, 4232192; 588390, 4232198; 588452, 4232235; 588471, 4232243; 
588492, 4232242; 588511, 4232234; 588530, 4232208; 588547, 4232165; 
588556, 4232147; 588566, 4232134; 588574, 4232126; 588583, 4232120; 
588601, 4232110; 588612, 4232108; 588611, 4232115; 588610, 4232136; 
588651, 4232135; 588671, 4232140; 588699, 4232155; 588721, 4232161; 
588740, 4232164; 588767, 4232164; 588782, 4232165; 588804, 4232167; 
588849, 4232173; 588861, 4232168; 588872, 4232160; 588883, 4232160; 
588895, 4232156; 588905, 4232149; 588912, 4232139; 588942, 4232080; 
588952, 4232058; 588960, 4232026; 588977, 4231960; 588981, 4231923; 
589001, 4231852; 589003, 4231845; 589000, 4231842; 588992, 4231841; 
588981, 4231837; 588977, 4231835; 588974, 4231830; 588978, 4231820; 
588984, 4231809; 588977, 4231793; 588953, 4231768; 588939, 4231787; 
588924, 4231794; 588893, 4231818; 588880, 4231823; 588863, 4231824; 
588851, 4231825; 588836, 4231820; 588792, 4231774; 588775, 4231776; 
588755, 4231773; 588721, 4231762; 588681, 4231743; 588675, 4231734; 
588658, 4231722; 588638, 4231713; 588608, 4231699; 588595, 4231652; 
588586, 4231603; 588608, 4231581; 588641, 4231569; 588656, 4231552; 
588668, 4231537; 588677, 4231521; 588681, 4231502; 588676, 4231467; 
588666, 4231440; 588657, 4231437; 588636, 4231428; 588608, 4231424; 
588601, 4231422; 588598, 4231419; 588602, 4231403; 588611, 4231373; 
588614, 4231342; 588624, 4231331; 588638, 4231321; 588641, 4231314; 
588645, 4231281; 588656, 4231238; 588701, 4231195; 588736, 4231180; 
588803, 4231181; 588814, 4231181; 588824, 4231184; 588831, 4231190; 
588882, 4231194; 589011, 4231195; 589145, 4231191; 589186, 4231192; 
589193, 4231199; 589203, 4231197; 589210, 4231196; 589217, 4231201; 
589230, 4231205; 589240, 4231206; 589250, 4231196; 589261, 4231192; 
589310, 4231190; 589309, 4231065; 589323, 4231065; 589325, 4231164; 
589331, 4231171; 589351, 4231176; 589380, 4231174; 589408, 4231167; 
589424, 4231166; 589433, 4231174; 589444, 4231178; 589460, 4231176; 
589475, 4231167; 589481, 4231152; 589485, 4231143; 589432, 4231067; 
589400, 4231023; 589353, 4230961; 589338, 4230944; 589333, 4230940; 
589328, 4230941; 589323, 4230944; 589320, 4230949; 589322, 4231051; 
589308, 4231051; 589309, 4230996; 589305, 4230988; 589291, 4230981; 
589215, 4230998; 589155, 4231004; 589115, 4230996; 589050, 4230984; 
588997, 4230950; 588946, 4230926; 588913, 4230919; 588884, 4230915; 
588844, 4230911; 588806, 4230912; 588782, 4230916; 588738, 4230927; 
588719, 4230936; 588685, 4230942; 588651, 4230957; 588590, 4230978; 
588547, 4230994; 588435, 4231007; 588395, 4231011; 588361, 4231016; 
588338, 4231022; 588297, 4231039; 588261, 4231055; 588226, 4231074; 
588198, 4231091; 588178, 4231101; 588158, 4231102; 588135, 4231100; 
588111, 4231098; 588063, 4231103; 588046, 4231107; 588028, 4231119; 
587998, 4231130; 587978, 4231131; 587961, 4231124; 587948, 4231111; 
587849, 4231089; 587852, 4231100; 587855, 4231118; 587851, 4231133; 
587846, 4231150; 587842, 4231164; 587836, 4231167; 587823, 4231172; 
587810, 4231175; 587796, 4231182; 587785, 4231200; 587777, 4231220; 
587753, 4231255; 587742, 4231264; 587720, 4231266; 587707, 4231261; 
587698, 4231249; 587696, 4231235; 587691, 4231183; 587646, 4231135; 
587593, 4231083; 587561, 4231076; 587537, 4231070; 587516, 4231072; 
587504, 4231078; 587490, 4231079; 587452, 4231086; 587416, 4231075; 
587349, 4231070; 587323, 4231070; 587310, 4231073; 587266, 4231097; 
587248, 4231099; 587223, 4231093; 587177, 4231085; 587134, 4231087; 
587114, 4231097; 587090, 4231120; 587062, 4231140; 587037, 4231141; 
587003, 4231126; 586984, 4231120; 586963, 4231121; 586948, 4231123; 
586939, 4231125; 586932, 4231138; 586944, 4231161; 586943, 4231180; 
586935, 4231197; 586919, 4231215; 586896, 4231226; 586882, 4231229; 
586868, 4231222; 586848, 4231217; 586830, 4231226; 586823, 4231235; 
586821, 4231248.
    (ii) Note: Unit 1 for Cirsium hydrophilum var. hydrophilum is 
depicted on Map 2--see paragraph 8(ii).
    (7) Unit 2 (Subunits 2A and 2B) for Cirsium hydrophilum var. 
hydrophilum: Peytonia Slough Marsh, Solano County, California.
    (i) Subunit 2A: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 582704, 4231361; 582681, 4231360; 582655, 4231364; 
582636, 4231367; 582606, 4231377; 582583, 4231379; 582557, 4231382; 
582549, 4231387; 582545, 4231395; 582540, 4231408; 582536, 4231420; 
582532, 4231426; 582524, 4231430; 582515, 4231434; 582504, 4231436; 
582488, 4231439; 582480, 4231438; 582473, 4231436; 582472, 4231433; 
582471, 4231429; 582469, 4231414; 582469, 4231396; 582470, 4231385; 
582468, 4231383; 582465, 4231382; 582434, 4231390; 582400, 4231403; 
582364, 4231411; 582344, 4231413; 582331, 4231414; 582345, 4231454; 
582366, 4231508; 582370, 4231512; 582378, 4231515; 582393, 4231534; 
582400, 4231547; 582407, 4231550; 582443, 4231547; 582476, 4231550; 
582495, 4231552; 582503, 4231557; 582510, 4231563; 582528, 4231582; 
582539, 4231595; 582551, 4231603; 582583, 4231619; 582626, 4231641;

[[Page 18479]]

582670, 4231672; 582692, 4231693; 582782, 4231782; 582830, 4231815; 
582844, 4231832; 582850, 4231841; 582855, 4231856; 582856, 4231870; 
582862, 4231878; 582878, 4231888; 582939, 4231915; 582970, 4231937; 
583129, 4232108; 583148, 4232140; 583164, 4232175; 583284, 4232365; 
583293, 4232377; 583305, 4232384; 583319, 4232387; 583333, 4232386; 
583349, 4232377; 583371, 4232350; 583391, 4232315; 583398, 4232298; 
583402, 4232278; 583404, 4232254; 583404, 4232238; 583403, 4232218; 
583401, 4232207; 583396, 4232181; 583349, 4232056; 583284, 4231895; 
583291, 4231882; 583260, 4231794; 583195, 4231625; 583173, 4231570; 
583066, 4231313; 582967, 4231059; 582953, 4231087; 582938, 4231101; 
582922, 4231109; 582908, 4231115; 582886, 4231113; 582875, 4231116; 
582864, 4231127; 582861, 4231138; 582861, 4231163; 582854, 4231183; 
582842, 4231196; 582775, 4231252; 582763, 4231266; 582754, 4231280; 
582752, 4231290; 582753, 4231306; 582760, 4231335; 582742, 4231364; 
582724, 4231366; 582704, 4231361.
    (ii) Subunit 2B: Land bounded by the following UTM zone 10, NAD 
1983 coordinates (E, N): 582974, 4231032; 583313, 4231870; 583328, 
4231873; 583501, 4232317; 583572, 4232314; 583572, 4232304; 583575, 
4232298; 583581, 4232291; 583588, 4232283; 583594, 4232281; 583599, 
4232282; 583602, 4232287; 583608, 4232288; 583613, 4232289; 583611, 
4232294; 583615, 4232298; 583621, 4232298; 583633, 4232298; 583634, 
4232285; 583636, 4232281; 583639, 4232279; 583719, 4232277; 583745, 
4232276; 583752, 4232274; 583758, 4232270; 583763, 4232259; 583768, 
4232228; 583790, 4232052; 583794, 4232022; 583798, 4231999; 583810, 
4231967; 583813, 4231963; 583826, 4231961; 583842, 4231966; 583861, 
4231967; 583873, 4231968; 583882, 4231968; 583890, 4231951; 583916, 
4231951; 583917, 4231956; 583920, 4231963; 583922, 4231966; 583932, 
4231966; 583940, 4231966; 583945, 4231962; 583953, 4231963; 583959, 
4231964; 583966, 4231966; 583972, 4231966; 583980, 4231963; 583983, 
4231954; 583987, 4231948; 583992, 4231944; 584003, 4231930; 584019, 
4231925; 584026, 4231922; 584043, 4231902; 584051, 4231884; 584060, 
4231865; 584067, 4231857; 584077, 4231852; 584098, 4231844; 584116, 
4231846; 584126, 4231853; 584136, 4231855; 584149, 4231850; 584167, 
4231823; 584200, 4231828; 584154, 4231969; 584272, 4232006; 584290, 
4231979; 584302, 4231954; 584308, 4231939; 584314, 4231931; 584325, 
4231891; 584336, 4231848; 584353, 4231790; 584378, 4231720; 584393, 
4231676; 584445, 4231535; 584495, 4231395; 584493, 4231381; 584491, 
4231370; 584490, 4231355; 584485; 4231355; 584479, 4231364; 584467, 
4231397; 584455, 4231415; 584443, 4231434; 584419, 4231448; 584397, 
4231452; 584378, 4231451; 584353, 4231436; 584343, 4231424; 584335, 
4231411; 584328, 4231370; 584325, 4231330; 584323, 4231324; 584318, 
4231320; 584309, 4231325; 584289, 4231349; 584255, 4231391; 584237, 
4231400; 584210, 4231408; 584187, 4231407; 584171, 4231400; 584159, 
4231388; 584134, 4231356; 584117, 4231338; 584093, 4231337; 584022, 
4231359; 584000, 4231375; 583963, 4231397; 583937, 4231404; 583913, 
4231403; 583891, 4231392; 583873, 4231376; 583864, 4231360; 583853, 
4231340; 583840, 4231324; 583817, 4231311; 583790, 4231287; 583775, 
4231256; 583770, 4231231; 583767, 4231196; 583762, 4231135; 583758, 
4231094; 583749, 4231057; 583736, 4231025; 583724, 4230989; 583720, 
4230973; 583722, 4230922; 583715, 4230893; 583691; 4230862; 583671, 
4230835; 583664, 4230816; 583662, 4230799; 583666, 4230760; 583665, 
4230715; 583659, 4230699; 583646, 4230684; 583633, 4230677; 583618, 
4230669; 583598, 4230667; 583582, 4230669; 583567, 4230679; 583562, 
4230689; 583555, 4230715; 583535, 4230746; 583528, 4230764; 583511, 
4230771; 583486, 4230779; 583460, 4230779; 583443, 4230778; 583424, 
4230770; 583390, 4230748; 583365, 4230737; 583345, 4230734; 583332, 
4230734; 583323, 4230740; 583319, 4230750; 583322, 4230768; 583336, 
4230780; 583366, 4230796; 583384, 4230808; 583396, 4230820; 583406, 
4230832; 583410, 4230849; 583408, 4230860; 583401, 4230873; 583383, 
4230886; 583362, 4230895; 583338, 4230898; 583324, 4230893; 583291, 
4230866; 583258, 4230849; 583244, 4230847; 583225, 4230868; 583214, 
4230879; 583193, 4230892; 583158, 4230903; 583131, 4230908; 583106, 
4230923; 583079, 4230935; 583061, 4230937; 583043, 4230935; 583030, 
4230925; 583025, 4230912; 583023, 4230900; 583026, 4230886; 583035, 
4230866; 583041, 4230845; 583036, 4230832; 583027, 4230826; 583015, 
4230828; 582999, 4230847; 582989, 4230866; 582985, 4230874; 582984, 
4230886; 582984, 4230912; 582984, 4230912; 582986, 4230920; 582989, 
4230932; 582996, 4230944; 583003, 4230955; 583019, 4230971; 583025, 
4230977; 583030, 4230983; 583033, 4230999; 583029, 4231014; 583017, 
4231029; 583003, 4231033; 582982, 4231032; 582974, 4231032.
    (iii) Note: Unit 2 (Subunits 2A and 2B) for Cirsium hydrophilum 
var. hydrophilum is depicted on Map 2--see paragraph 8(ii).
    (8) Unit 3 for Cirsium hydrophilum var. hydrophilum: Rush Ranch/
Grizzly Island Wildlife Area, Solano County, California.
    (i) Unit 3: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 583673, 4228103; 583675, 4228133; 583687, 4228156; 
583700, 4228170; 583824, 4228206; 583898, 4228219; 583938, 4228221; 
583961, 4228228; 583973, 4228240; 584002, 4228252; 584019, 4228251; 
584032, 4228262; 584052, 4228268; 584062, 4228278; 584134, 4228347; 
584153, 4228375; 584154, 4228398; 584147, 4228405; 584132, 4228407; 
584146, 4228473; 584150, 4228514; 584135, 4228552; 584137, 4228573; 
584128, 4228593; 584118, 4228631; 584109, 4228660; 584097, 4228672; 
584085, 4228696; 584083, 4228711; 584067, 4228730; 584041, 4228786; 
584038, 4228800; 584001, 4228862; 583993, 4228899; 583990, 4228918; 
583995, 4228944; 583991, 4228950; 583994, 4228962; 584008, 4228976; 
584020, 4228979; 584062, 4229001; 584095, 4229004; 584138, 4229000; 
584179, 4228989; 584255, 4228968; 584276, 4228967; 584312, 4228956; 
584341, 4228946; 584372, 4228940; 584420, 4228939; 584521, 4228954; 
584553, 4228947; 584568, 4228965; 584588, 4228974; 584599, 4228997; 
584621, 4229013; 584638, 4229054; 584656, 4229083; 584651, 4229091; 
584656, 4229119; 584665, 4229146; 584663, 4229177; 584660, 4229211; 
584653, 4229240; 584661, 4229251; 584655, 4229260; 584660, 4229271; 
584678, 4229276; 584700, 4229277; 584707, 4229273; 584728, 4229274; 
584737, 4229282; 584738, 4229292; 584748, 4229290; 584764, 4229294; 
584768, 4229301; 584759, 4229305; 584718, 4229301; 584714, 4229313; 
584755, 4229341; 584761, 4229345; 584765, 4229352; 584775, 4229376; 
584792, 4229388; 584807, 4229388; 584821, 4229381; 584827, 4229366; 
584827, 4229352; 584810, 4229333; 584806, 4229329; 584807, 4229325; 
584815, 4229320; 584834, 4229291; 584862, 4229269; 584904, 4229244; 
584937, 4229237; 584955, 4229235; 584968, 4229239; 584980, 4229233; 
584986, 4229223; 584999, 4229211; 585004, 4229191; 585016, 4229175; 
585024, 4229167; 585032, 4229163; 585050, 4229158; 585078, 4229144; 
585125, 4229112; 585167, 4229099; 585191, 4229094; 585219, 4229094;

[[Page 18480]]

585243, 4229102; 585257, 4229113; 585270, 4229116; 585281, 4229116; 
585291, 4229113; 585306, 4229090; 585319, 4229076; 585345, 4229068; 
585365, 4229067; 585378, 4229061; 585382, 4229055; 585382, 4229047; 
585380, 4229039; 585373, 4229029; 585366, 4229013; 585363, 4228998; 
585367, 4228988; 585376, 4228983; 585410, 4228987; 585422, 4228998; 
585438, 4229008; 585479, 4229011; 585515, 4229006; 585535, 4229002; 
585554, 4228984; 585567, 4228949; 585573, 4228933; 585585, 4228913; 
585600, 4228907; 585612, 4228908; 585625, 4228912; 585647, 4228920; 
585642, 4228890; 585642, 4228873; 585622, 4228807; 585613, 4228795; 
585591, 4228769; 585579, 4228766; 585571, 4228769; 585549, 4228793; 
585542, 4228817; 585530, 4228822; 585505, 4228833; 585480, 4228849; 
585438, 4228864; 585414, 4228871; 585400, 4228865; 585331, 4228844; 
585323, 4228852; 585309, 4228850; 585299, 4228849; 585294, 4228846; 
585293, 4228841; 585287, 4228835; 585305, 4228820; 585311, 4228824; 
585324, 4228804; 585281, 4228807; 585274, 4228801; 585266, 4228782; 
585250, 4228748; 585220, 4228671; 585264, 4228486; 585280, 4228425; 
585290, 4228350; 585298, 4228147; 585299, 4228142; 585303, 4228138; 
585507, 4227990; 585520, 4227986; 585588, 4227972; 585730, 4227946; 
585813, 4227928; 585835, 4227927; 586151, 4227951; 586270, 4227960; 
586286, 4227964; 586378, 4227971; 586420, 4227977; 586429, 4227988; 
586438, 4227998; 586434, 4228018; 586430, 4228035; 586429, 4228066; 
586442, 4228101; 586479, 4228127; 586518, 4228154; 586552, 4228173; 
586584, 4228180; 586576, 4228199; 586602, 4228212; 586618, 4228207; 
586625, 4228212; 586633, 4228227; 586642, 4228230; 586652, 4228229; 
586669, 4228218; 586676, 4228213; 586690, 4228219; 586702, 4228228; 
586705, 4228243; 586706, 4228267; 586706, 4228288; 586713, 4228308; 
586695, 4228350; 586687, 4228381; 586692, 4228392; 586702, 4228402; 
586712, 4228407; 586721, 4228406; 586732, 4228413; 586742, 4228414; 
586750, 4228413; 586760, 4228409; 586774, 4228386; 586789, 4228366; 
586847, 4228346; 586872, 4228350; 586897, 4228347; 586944, 4228304; 
586989, 4228208; 586997, 4228176; 587006, 4228147; 587023, 4228133; 
587062, 4228118; 587080, 4228122; 587097, 4228118; 587111, 4228087; 
587126, 4228069; 587149, 4228056; 587172, 4228056; 587183, 4228065; 
587188, 4228079; 587188, 4228094; 587177, 4228122; 587287, 4228085; 
587295, 4228072; 587292, 4228064; 587278, 4228055; 587273, 4228038; 
587316, 4228041; 587389, 4228027; 587460, 4228016; 587548, 4227976; 
587617, 4227944; 587620, 4227957; 587626, 4227967; 587643, 4227967; 
587658, 4227960; 587677, 4227954; 587682, 4227945; 587691, 4227939; 
587699, 4227933; 587696, 4227905; 587771, 4227862; 587779, 4227871; 
587790, 4227881; 587802, 4227886; 587821, 4227882; 587834, 4227875; 
587845, 4227859; 587855, 4227849; 587863, 4227839; 587874, 4227841; 
587883, 4227845; 587890, 4227853; 587901, 4227860; 587921, 4227856; 
587935, 4227850; 587945, 4227839; 587955, 4227833; 587959, 4227820; 
587984, 4227809; 588004, 4227799; 588059, 4227806; 588083, 4227797; 
588229, 4227730; 588244, 4227721; 588264, 4227721; 588274, 4227718; 
588276, 4227731; 588280, 4227749; 588359, 4227718; 588361, 4227693; 
588515, 4227643; 588538, 4227632; 588552, 4227619; 588564, 4227604; 
588596, 4227554; 588617, 4227507; 588627, 4227498; 588652, 4227502; 
588703, 4227534; 588761, 4227555; 588822, 4227530; 588823, 4227505; 
588830, 4227492; 588847, 4227475; 588913, 4227418; 588942, 4227396; 
588976, 4227373; 589001, 4227370; 589030, 4227376; 589067, 4227391; 
589084, 4227403; 589095, 4227419; 589112, 4227426; 589141, 4227416; 
589143, 4227392; 589143, 4227340; 589148, 4227335; 589160, 4227337; 
589190, 4227350; 589217, 4227341; 589249, 4227323; 589278, 4227331; 
589294, 4227348; 589307, 4227349; 589320, 4227341; 589338, 4227311; 
589359, 4227301; 589371, 4227303; 589387, 4227334; 589436, 4227339; 
589447, 4227329; 589463, 4227327; 589478, 4227331; 589495, 4227329; 
589502, 4227319; 589527, 4227309; 589568, 4227297; 589578, 4227294; 
589585, 4227275; 589596, 4227236; 589597, 4227189; 589500, 4227183; 
589348, 4227165; 589325, 4227155; 589274, 4227145; 589146, 4227108; 
589084, 4227075; 588999, 4226997; 588865, 4226906; 588763, 4226822; 
588737, 4226808; 588715, 4226811; 588640, 4226826; 588599, 4226831; 
588596, 4226841; 588599, 4226860; 588606, 4226870; 588635, 4226918; 
588692, 4227005; 588722, 4227076; 588740, 4227152; 588741, 4227188; 
588739, 4227225; 588725, 4227262; 588711, 4227287; 588690, 4227313; 
588645, 4227348; 588593, 4227381; 588495, 4227429; 588398, 4227461; 
588264, 4227514; 588195, 4227547; 588127, 4227585; 588016, 4227644; 
587974, 4227661; 587934, 4227670; 587885, 4227676; 587807, 4227674; 
587752, 4227664; 587701, 4227650; 587632, 4227621; 587591, 4227595; 
587533, 4227537; 587487, 4227456; 587467, 4227410; 587430, 4227281; 
587385, 4227098; 587355, 4227029; 587326, 4226985; 587263, 4226919; 
587112, 4226798; 586999, 4226714; 586868, 4226625; 586771, 4226575; 
586734, 4226563; 586696, 4226556; 586646, 4226554; 586595, 4226558; 
586548, 4226571; 586476, 4226611; 586342, 4226720; 586160, 4226880; 
586014, 4226997; 585931, 4227078; 585835, 4227185; 585790, 4227234; 
585743, 4227274; 585708, 4227298; 585673, 4227309; 585647, 4227312; 
585613, 4227321; 585596, 4227329; 585579, 4227340; 585558, 4227365; 
585541, 4227403; 585534, 4227449; 585536, 4227504; 585534, 4227570; 
585516, 4227631; 585496, 4227674; 585475, 4227703; 585451, 4227721; 
585428, 4227732; 585380, 4227737; 585320, 4227730; 585228, 4227698; 
585161, 4227662; 585064, 4227603; 585034, 4227589; 585004, 4227581; 
584964, 4227585; 584913, 4227597; 584870, 4227620; 584816, 4227660; 
584777, 4227693; 584737, 4227738; 584713, 4227772; 584699, 4227799; 
584675, 4227858; 584655, 4227890; 584624, 4227903; 584597, 4227902; 
584568, 4227897; 584539, 4227888; 584525, 4227871; 584497, 4227842; 
584462, 4227827; 584433, 4227814; 584415, 4227814; 584332, 4227794; 
584289, 4227774; 584262, 4227754; 584247, 4227740; 584239, 4227722; 
584223, 4227701; 584214, 4227700; 584196, 4227724; 584138, 4227768; 
584106, 4227792; 584104, 4227804; 584090, 4227810; 584083, 4227808; 
584056, 4227836; 583982, 4227893; 583937, 4227918; 583911, 4227932; 
583814, 4227974; 583713, 4228012; 583691, 4228033; 583680, 4228053; 
583675, 4228063; 583676, 4228074; 583673, 4228103.
    (ii) Note: Unit 3 for Cirsium hydrophilum var. hydrophilum is 
depicted on Map 2, which follows: [insert Map 2: Units 1, 2, and 3 for 
Cirsium hydrophilum var. hydrophilum]
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* * * * *

Family Scrophulariaceae: Cordylanthus mollis ssp. mollis (soft bird's-
beak)

    (1) Critical habitat units are depicted for Contra Costa, Napa, and 
Solano Counties, California, on the maps below.
    (2) The PCEs of critical habitat for Cordylanthus mollis ssp. 
mollis are the habitat components that provide:
    (i) Tidally influenced marsh areas (intertidal emergent estuarine 
marshes) bounded on the seaward edge by the mean high water line and on 
the landward edge by a marsh-upland ecotone; and containing channel 
networks influenced by freshwater and saltwater hydrology and 
exhibiting full natural tidal inundations to allow for channel 
development and migration through erosional and depositional processes 
(such as channel undercutting, bank slumping, and sedimentation) during 
daily flood and ebb flows and seasonal storm events.
    (ii) Areas associated with PCE 1 that are within tidally influenced 
marsh floodplains that contain hydric soils that are slightly to 
moderately saline (4 to 16 dS/m) within the first 3 ft (0.9 m) of soil 
depth.
    (iii) Tidal marsh habitats within PCE 1 and PCE 2 that have native 
halophytic plant communities with an average canopy height equal to or 
less than 20.5 in (52 cm);
    (iv) Areas within PCE 1 and PCE 2 that provide for a sufficient 
number of suitable host plants, including but not limited to Distichlis 
spicata (salt grass), Salicornia virginica (pickleweed), and Jaumea 
carnosa (marsh jaumea). These host plants provide the subspecies with 
part of its water and nutritional requirements to augment its growth.
    (3) Critical habitat does not include man-made structures existing 
on the effective date of this rule and not containing one or more of 
the PCEs, such as buildings, aqueducts, airports, and roads, and the 
land on which such structures are located.
    (4) Data layers defining Contra Costa, Napa, and Solano Counties 
map units were created on a base map using California Spatial 
Information Library black and white 1:24,000 scale digital orthophoto 
quarter quadrangles captured June/July 1993. Critical habitat units 
were then mapped using UTM zone 10, NAD 1983 coordinates.
    (5) Note: Map 1 (Index map for Cordylanthus mollis ssp. mollis) 
follows:

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    (6) Unit 1 for Cordylanthus mollis ssp. mollis: Fagan Slough Marsh, 
Napa County, California.
    (i) Unit 1: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 560527, 4229777; 560514, 4229819; 560510, 4229907; 
560429, 4230254; 560427, 4230287; 560433, 4230304; 560444, 4230315; 
560460, 4230326; 560489, 4230333; 560520, 4230338; 560559, 4230331; 
560843, 4230233; 561055, 4230223; 561205, 4230236; 561248, 4230243; 
561327, 4230272; 561399, 4230310; 561428, 4230335; 561457, 4230372; 
561478, 4230406; 561509, 4230456; 561532, 4230472; 561572, 4230471; 
561733, 4230474; 561774, 4230477; 561815, 4230493; 561945, 4230599; 
561957, 4230617; 561974, 4230659; 561983, 4230685; 561992, 4230698; 
562005, 4230714; 562032, 4230732; 562052, 4230752; 562068, 4230781; 
562078, 4230790; 562088, 4230794; 562099, 4230795; 562128, 4230785; 
562421, 4230785; 562435, 4230783; 562441, 4230774; 562445, 4230734; 
562470, 4230705; 562474, 4230698; 562459, 4230624; 562461, 4230515; 
562459, 4230498; 562456, 4230491; 562445, 4230491; 562437, 4230485; 
562434, 4230476; 562438, 4230466; 562459, 4230405; 562483, 4230364; 
562489, 4230349; 562494, 4230305; 562506, 4230305; 562513, 4230299; 
562517, 4230294; 562520, 4230288; 562517, 4230273; 562512, 4230247; 
562497, 4230093; 562473, 4229897; 562470, 4229856; 562471, 4229834; 
562576, 4229699; 562606, 4229676; 562633, 4229658; 562648, 4229643; 
562659, 4229620; 562658, 4229595; 562651, 4229578; 562645, 4229564; 
562633, 4229550; 562623, 4229542; 562602, 4229534; 562594, 4229521; 
562586, 4229513; 562571, 4229514; 562551, 4229522; 562529, 4229528; 
562479, 4229526; 562459, 4229476; 562449, 4229477; 562457, 4229555; 
561938, 4229551; 561890, 4229513; 561863, 4229512; 561781, 4229512; 
561749, 4229509; 561700, 4229511; 561690, 4229523; 561660, 4229519; 
561571, 4229537; 561493, 4229557; 561431, 4229576; 561387, 4229606; 
561349, 4229650; 561294, 4229701; 561222, 4229756; 561191, 4229773; 
561146, 4229787; 561084, 4229805; 561062, 4229809; 561017, 4229816; 
560977, 4229820; 560937, 4229818; 560902, 4229821; 560859, 4229825; 
560783, 4229823; 560736, 4229813; 560708, 4229804; 560675, 4229781; 
560654, 4229760; 560624, 4229712; 560609, 4229670; 560599, 4229664; 
560590, 4229664; 560587, 4229675; 560567, 4229705; 560541, 4229741; 
560527, 4229777.
    (ii) Note: Unit 1 for Cordylanthus mollis ssp. mollis is depicted 
on Map 2, which follows:

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    (7) Unit 2 for Cordylanthus mollis ssp. mollis: Hill Slough Marsh, 
Solano County, California.
    (i) Unit 2: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 586821, 4231248; 586825, 4231260; 586834, 4231272; 
586848, 4231278; 586868, 4231280; 586930, 4231305; 586934, 4231417; 
586934, 4231457; 586933, 4231517; 586936, 4231569; 586931, 4231638; 
586933, 4231730; 586930, 4231824; 586927, 4231988; 586932, 4232511; 
586935, 4232541; 587032, 4232539; 587031, 4232513; 587025, 4232474; 
587022, 4232447; 587028, 4232423; 587045, 4232382; 587207, 4232226; 
587186, 4232194; 587189, 4232174; 587211, 4232155; 587232, 4232152; 
587246, 4232165; 587275, 4232169; 587294, 4232159; 587307, 4232136; 
587314, 4232107; 587310, 4232094; 587350, 4232087; 587391, 4232079; 
587427, 4232061; 587470, 4232043; 587490, 4232041; 587513, 4232049; 
587544, 4232041; 587602, 4232017; 587641, 4231995; 587689, 4231981; 
587738, 4231977; 587763, 4231981; 587776, 4231987; 587790, 4231996; 
587803, 4232008; 587814, 4232019; 587826, 4232031; 587844, 4232043; 
587859, 4232051; 587882, 4232067; 587897, 4232078; 587933, 4232080; 
587944, 4232075; 587951, 4232066; 587957, 4232059; 587985, 4232048; 
588000, 4232042; 588016, 4232041; 588028, 4232043; 588041, 4232044; 
588050, 4232058; 588051, 4232075; 588048, 4232095; 588055, 4232133; 
588083, 4232223; 588094, 4232243; 588105, 4232252; 588114, 4232256; 
588124, 4232254; 588136, 4232249; 588141, 4232237; 588137, 4232225; 
588132, 4232212; 588149, 4232197; 588157, 4232186; 588162, 4232179; 
588182, 4232158; 588195, 4232146; 588218, 4232130; 588228, 4232126; 
588241, 4232122; 588245, 4232122; 588255, 4232141; 588259, 4232149; 
588270, 4232160; 588277, 4232165; 588284, 4232175; 588287, 4232187; 
588287, 4232197; 588290, 4232212; 588295, 4232222; 588306, 4232225; 
588311, 4232235; 588316, 4232250; 588324, 4232254; 588334, 4232254; 
588340, 4232249; 588339, 4232240; 588333, 4232226; 588333, 4232216; 
588336, 4232206; 588345, 4232198; 588353, 4232189; 588360, 4232187; 
588379, 4232192; 588390, 4232198; 588452, 4232235; 588471, 4232243; 
588492, 4232242; 588511, 4232234; 588530, 4232208; 588547, 4232165; 
588556, 4232147; 588566, 4232134; 588574, 4232126; 588583, 4232120; 
588601, 4232110; 588612, 4232108; 588611, 4232115; 588610, 4232136; 
588651, 4232135; 588671, 4232140; 588699, 4232155; 588721, 4232161; 
588740, 4232164; 588767, 4232164; 588782, 4232165; 588804, 4232167; 
588849, 4232173; 588861, 4232168; 588872, 4232160; 588883, 4232160; 
588895, 4232156; 588905, 4232149; 588912, 4232139; 588942, 4232080; 
588952, 4232058; 588960, 4232026; 588977, 4231960; 588981, 4231923; 
589001, 4231852; 589003, 4231845; 589000, 4231842; 588992, 4231841; 
588981, 4231837; 588977, 4231835; 588974, 4231830; 588978, 4231820; 
588984, 4231809; 588977, 4231793; 588953, 4231768; 588939, 4231787; 
588924, 4231794; 588893, 4231818; 588880, 4231823; 588863, 4231824; 
588851, 4231825; 588836, 4231820; 588792, 4231774; 588775, 4231776; 
588755, 4231773; 588721, 4231762; 588681, 4231743; 588675, 4231734; 
588658, 4231722; 588638, 4231713; 588608, 4231699; 588595, 4231652; 
588586, 4231603; 588608, 4231581; 588641, 4231569; 588656, 4231552; 
588668, 4231537; 588677, 4231521; 588681, 4231502; 588676, 4231467; 
588666, 4231440; 588657, 4231437; 588636, 4231428; 588608, 4231424; 
588601, 4231422; 588598, 4231419; 588602, 4231403; 588611, 4231373; 
588614, 4231342; 588624, 4231331; 588638, 4231321; 588641, 4231314; 
588645, 4231281; 588656, 4231238; 588701, 4231195; 588736, 4231180; 
588803, 4231181; 588814, 4231181; 588824, 4231184; 588831, 4231190; 
588882, 4231194; 589011, 4231195; 589145, 4231191; 589186, 4231192; 
589193, 4231199; 589203, 4231197; 589210, 4231196; 589217, 4231201; 
589230, 4231205; 589240, 4231206; 589250, 4231196; 589261, 4231192; 
589310, 4231190; 589309, 4231065; 589323, 4231065; 589325, 4231164; 
589331, 4231171; 589351, 4231176; 589380, 4231174; 589408, 4231167; 
589424, 4231166; 589433, 4231174; 589444, 4231178; 589460, 4231176; 
589475, 4231167; 589481, 4231152; 589485, 4231143; 589432, 4231067; 
589400, 4231023; 589353, 4230961; 589338, 4230944; 589333, 4230940; 
589328, 4230941; 589323, 4230944; 589320, 4230949; 589322, 4231051; 
589308, 4231051; 589309, 4230996; 589305, 4230988; 589291, 4230981; 
589215, 4230998; 589155, 4231004; 589115, 4230996; 589050, 4230984; 
588997, 4230950; 588946, 4230926; 588913, 4230919; 588884, 4230915; 
588844, 4230911; 588806, 4230912; 588782, 4230916; 588738, 4230927; 
588719, 4230936; 588685, 4230942; 588651, 4230957; 588590, 4230978; 
588547, 4230994; 588435, 4231007; 588395, 4231011; 588361, 4231016; 
588338, 4231022; 588297, 4231039; 588261, 4231055; 588226, 4231074; 
588198, 4231091; 588178, 4231101; 588158, 4231102; 588135, 4231100; 
588111, 4231098; 588063, 4231103; 588046, 4231107; 588028, 4231119; 
587998, 4231130; 587978, 4231131; 587961, 4231124; 587948, 4231111; 
587849, 4231089; 587852, 4231100; 587855, 4231118; 587851, 4231133; 
587846, 4231150; 587842, 4231164; 587836, 4231167; 587823, 4231172; 
587810, 4231175; 587796, 4231182; 587785, 4231200; 587777, 4231220; 
587753, 4231255; 587742, 4231264; 587720, 4231266; 587707, 4231261; 
587698, 4231249; 587696, 4231235; 587691, 4231183; 587646, 4231135; 
587593, 4231083; 587561, 4231076; 587537, 4231070; 587516, 4231072; 
587504, 4231078; 587490, 4231079; 587452, 4231086; 587416, 4231075; 
587349, 4231070; 587323, 4231070; 587310, 4231073; 587266, 4231097; 
587248, 4231099; 587223, 4231093; 587177, 4231085; 587134, 4231087; 
587114, 4231097; 587090, 4231120; 587062, 4231140; 587037, 4231141; 
587003, 4231126; 586984, 4231120; 586963, 4231121; 586948, 4231123; 
586939, 4231125; 586932, 4231138; 586944, 4231161; 586943, 4231180; 
586935, 4231197; 586919, 4231215; 586896, 4231226; 586882, 4231229; 
586868, 4231222; 586848, 4231217; 586830, 4231226; 586823, 4231235; 
586821, 4231248.
    (ii) Note: Unit 2 for Cordylanthus mollis ssp. mollis is depicted 
on Map 3--see paragraph 8(ii) below:
    (8) Unit 4 for Cordylanthus mollis ssp. mollis: Rush Ranch/Grizzly 
Island Wildlife Area, Solano County, California.
    (i) Unit 4: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 583673, 4228103; 583675, 4228133; 583687, 4228156; 
583700, 4228170; 583824, 4228206; 583898, 4228219; 583938, 4228221; 
583961, 4228228; 583973, 4228240; 584002, 4228252; 584019, 4228251; 
584032, 4228262; 584052, 4228268; 584062, 4228278; 584134, 4228347; 
584153, 4228375; 584154, 4228398; 584147, 4228405; 584132, 4228407; 
584146, 4228473; 584150, 4228514; 584135, 4228552; 584137, 4228573; 
584128, 4228593; 584118, 4228631; 584109, 4228660; 584097, 4228672; 
584085, 4228696; 584083, 4228711; 584067, 4228730; 584041, 4228786; 
584038, 4228800; 584001, 4228862; 583993, 4228899; 583990, 4228918; 
583995, 4228944; 583991, 4228950; 583994, 4228962; 584008, 4228976; 
584020, 4228979; 584062, 4229001; 584095, 4229004; 584138, 4229000; 
584179, 4228989; 584255, 4228968; 584276, 4228967; 584312, 4228956;

[[Page 18487]]

584341, 4228946; 584372, 4228940; 584420, 4228939; 584521, 4228954; 
584553, 4228947; 584568, 4228965; 584588, 4228974; 584599, 4228997; 
584621, 4229013; 584638, 4229054; 584656, 4229083; 584651, 4229091; 
584656, 4229119; 584665, 4229146; 584663, 4229177; 584660, 4229211; 
584653, 4229240; 584661, 4229251; 584655, 4229260; 584660, 4229271; 
584678, 4229276; 584700, 4229277; 584707, 4229273; 584728, 4229274; 
584737, 4229282; 584738, 4229292; 584748, 4229290; 584764, 4229294; 
584768, 4229301; 584759, 4229305; 584718, 4229301; 584714, 4229313; 
584755, 4229341; 584761, 4229345; 584765, 4229352; 584775, 4229376; 
584792, 4229388; 584807, 4229388; 584821, 4229381; 584827, 4229366; 
584827, 4229352; 584810, 4229333; 584806, 4229329; 584807, 4229325; 
584815, 4229320; 584834, 4229291; 584862, 4229269; 584904, 4229244; 
584937, 4229237; 584955, 4229235; 584968, 4229239; 584980, 4229233; 
584986, 4229223; 584999, 4229211; 585004, 4229191; 585016, 4229175; 
585024, 4229167; 585032, 4229163; 585050, 4229158; 585078, 4229144; 
585125, 4229112; 585167, 4229099; 585191, 4229094; 585219, 4229094; 
585243, 4229102; 585257, 4229113; 585270, 4229116; 585281, 4229116; 
585291, 4229113; 585306, 4229090; 585319, 4229076; 585345, 4229068; 
585365, 4229067; 585378, 4229061; 585382, 4229055; 585382, 4229047; 
585380, 4229039; 585373, 4229029; 585366, 4229013; 585363, 4228998; 
585367, 4228988; 585376, 4228983; 585410, 4228987; 585422, 4228998; 
585438, 4229008; 585479, 4229011; 585515, 4229006; 585535, 4229002; 
585554, 4228984; 585567, 4228949; 585573, 4228933; 585585, 4228913; 
585600, 4228907; 585612, 4228908; 585625, 4228912; 585647, 4228920; 
585642, 4228890; 585642, 4228873; 585622, 4228807; 585613, 4228795; 
585591, 4228769; 585579, 4228766; 585571, 4228769; 585549, 4228793; 
585542, 4228817; 585530, 4228822; 585505, 4228833; 585480, 4228849; 
585438, 4228864; 585414, 4228871; 585400, 4228865; 585331, 4228844; 
585323, 4228852; 585309, 4228850; 585299, 4228849; 585294, 4228846; 
585293, 4228841; 585287, 4228835; 585305, 4228820; 585311, 4228824; 
585324, 4228804; 585281, 4228807; 585274, 4228801; 585266, 4228782; 
585250, 4228748; 585220, 4228671; 585264, 4228486; 585280, 4228425; 
585290, 4228350; 585298, 4228147; 585299, 4228142; 585303, 4228138; 
585507, 4227990; 585520, 4227986; 585588, 4227972; 585730, 4227946; 
585813, 4227928; 585835, 4227927; 586151, 4227951; 586270, 4227960; 
586286, 4227964; 586378, 4227971; 586420, 4227977; 586429, 4227988; 
586438, 4227998; 586434, 4228018; 586430, 4228035; 586429, 4228066; 
586442, 4228101; 586479, 4228127; 586518, 4228154; 586552, 4228173; 
586584, 4228180; 586576, 4228199; 586602, 4228212; 586618, 4228207; 
586625, 4228212; 586633, 4228227; 586642, 4228230; 586652, 4228229; 
586669, 4228218; 586676, 4228213; 586690, 4228219; 586702, 4228228; 
586705, 4228243; 586706, 4228267; 586706, 4228288; 586713, 4228308; 
586695, 4228350; 586687, 4228381; 586692, 4228392; 586702, 4228402; 
586712, 4228407; 586721, 4228406; 586732, 4228413; 586742, 4228414; 
586750, 4228413; 586760, 4228409; 586774, 4228386; 586789, 4228366; 
586847, 4228346; 586872, 4228350; 586897, 4228347; 586944, 4228304; 
586989, 4228208; 586997, 4228176; 587006, 4228147; 587023, 4228133; 
587062, 4228118; 587080, 4228122; 587097, 4228118; 587111, 4228087; 
587126, 4228069; 587149, 4228056; 587172, 4228056; 587183, 4228065; 
587188, 4228079; 587188, 4228094; 587177, 4228122; 587287, 4228085; 
587295, 4228072; 587292, 4228064; 587278, 4228055; 587273, 4228038; 
587316, 4228041; 587389, 4228027; 587460, 4228016; 587548, 4227976; 
587617, 4227944; 587620, 4227957; 587626, 4227967; 587643, 4227967; 
587658, 4227960; 587677, 4227954; 587682, 4227945; 587691, 4227939; 
587699, 4227933; 587696, 4227905; 587771, 4227862; 587779, 4227871; 
587790, 4227881; 587802, 4227886; 587821, 4227882; 587834, 4227875; 
587845, 4227859; 587855, 4227849; 587863, 4227839; 587874, 4227841; 
587883, 4227845; 587890, 4227853; 587901, 4227860; 587921, 4227856; 
587935, 4227850; 587945, 4227839; 587955, 4227833; 587959, 4227820; 
587984, 4227809; 588004, 4227799; 588059, 4227806; 588083, 4227797; 
588229, 4227730; 588244, 4227721; 588264, 4227721; 588274, 4227718; 
588276, 4227731; 588280, 4227749; 588359, 4227718; 588361, 4227693; 
588515, 4227643; 588538, 4227632; 588552, 4227619; 588564, 4227604; 
588596, 4227554; 588617, 4227507; 588627, 4227498; 588652, 4227502; 
588703, 4227534; 588761, 4227555; 588822, 4227530; 588823, 4227505; 
588830, 4227492; 588847, 4227475; 588913, 4227418; 588942, 4227396; 
588976, 4227373; 589001, 4227370; 589030, 4227376; 589067, 4227391; 
589084, 4227403; 589095, 4227419; 589112, 4227426; 589141, 4227416; 
589143, 4227392; 589143, 4227340; 589148, 4227335; 589160, 4227337; 
589190, 4227350; 589217, 4227341; 589249, 4227323; 589278, 4227331; 
589294, 4227348; 589307, 4227349; 589320, 4227341; 589338, 4227311; 
589359, 4227301; 589371, 4227303; 589387, 4227334; 589436, 4227339; 
589447, 4227329; 589463, 4227327; 589478, 4227331; 589495, 4227329; 
589502, 4227319; 589527, 4227309; 589568, 4227297; 589578, 4227294; 
589585, 4227275; 589596, 4227236; 589597, 4227189; 589500, 4227183; 
589348, 4227165; 589325, 4227155; 589274, 4227145; 589146, 4227108; 
589084, 4227075; 588999, 4226997; 588865, 4226906; 588763, 4226822; 
588737, 4226808; 588715, 4226811; 588640, 4226826; 588599, 4226831; 
588596, 4226841; 588599, 4226860; 588606, 4226870; 588635, 4226918; 
588692, 4227005; 588722, 4227076; 588740, 4227152; 588741, 4227188; 
588739, 4227225; 588725, 4227262; 588711, 4227287; 588690, 4227313; 
588645, 4227348; 588593, 4227381; 588495, 4227429; 588398, 4227461; 
588264, 4227514; 588195, 4227547; 588127, 4227585; 588016, 4227644; 
587974, 4227661; 587934, 4227670; 587885, 4227676; 587807, 4227674; 
587752, 4227664; 587701, 4227650; 587632, 4227621; 587591, 4227595; 
587533, 4227537; 587487, 4227456; 587467, 4227410; 587430, 4227281; 
587385, 4227098; 587355, 4227029; 587326, 4226985; 587263, 4226919; 
587112, 4226798; 586999, 4226714; 586868, 4226625; 586771, 4226575; 
586734, 4226563; 586696, 4226556; 586646, 4226554; 586595, 4226558; 
586548, 4226571; 586476, 4226611; 586342, 4226720; 586160, 4226880; 
586014, 4226997; 585931, 4227078; 585835, 4227185; 585790, 4227234; 
585743, 4227274; 585708, 4227298; 585673, 4227309; 585647, 4227312; 
585613, 4227321; 585596, 4227329; 585579, 4227340; 585558, 4227365; 
585541, 4227403; 585534, 4227449; 585536, 4227504; 585534, 4227570; 
585516, 4227631; 585496, 4227674; 585475, 4227703; 585451, 4227721; 
585428, 4227732; 585380, 4227737; 585320, 4227730; 585228, 4227698; 
585161, 4227662; 585064, 4227603; 585034, 4227589; 585004, 4227581; 
584964, 4227585; 584913, 4227597; 584870, 4227620; 584816, 4227660; 
584777, 4227693; 584737, 4227738; 584713, 4227772; 584699, 4227799; 
584675, 4227858; 584655, 4227890; 584624, 4227903; 584597, 4227902; 
584568, 4227897; 584539, 4227888; 584525, 4227871; 584497, 4227842; 
584462, 4227827; 584433, 4227814; 584415, 4227814; 584332, 4227794;

[[Page 18488]]

584289, 4227774; 584262, 4227754; 584247, 4227740; 584239, 4227722; 
584223, 4227701; 584214, 4227700; 584196, 4227724; 584138, 4227768; 
584106, 4227792; 584104, 4227804; 584090, 4227810; 584083, 4227808; 
584056, 4227836; 583982, 4227893; 583937, 4227918; 583911, 4227932; 
583814, 4227974; 583713, 4228012; 583691, 4228033; 583680, 4228053; 
583675, 4228063; 583676, 4228074; 583673, 4228103.
    (ii) Note: Unit 4 for Cordylanthus mollis ssp.  mollis is depicted 
on Map 3, which follows:

BILLING CODE 4310-55-P

[[Page 18489]]

[GRAPHIC] [TIFF OMITTED] TP11AP06.005

BILLING CODE 4310-55-C

[[Page 18490]]

    (9) Unit 3 for Cordylanthus mollis ssp. mollis: Point Pinole 
Shoreline, Contra Costa County, California.
    (i) Unit 3: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 557436, 4206461; 557427, 4206437; 557413, 4206422; 
557385, 4206413; 557364, 4206395; 557341, 4206372; 557318, 4206353; 
557292, 4206342; 557263, 4206332; 557245, 4206330; 557231, 4206333; 
557222, 4206340; 557214, 4206351; 557211, 4206366; 557212, 4206378; 
557222, 4206387; 557236, 4206399; 557253, 4206411; 557270, 4206425; 
557275, 4206438; 557270, 4206450; 557257, 4206461; 557248, 4206467; 
557239, 4206475; 557240, 4206484; 557247, 4206491; 557253, 4206495; 
557269, 4206493; 557299, 4206500; 557315, 4206507; 557329, 4206513; 
557339, 4206520; 557349, 4206536; 557351, 4206554; 557353, 4206566; 
557367, 4206578; 557378, 4206582; 557403, 4206588; 557415, 4206590; 
557418, 4206604; 557428, 4206616; 557456, 4206614; 557468, 4206606; 
557526, 4206560; 557567, 4206529; 557584, 4206508; 557600, 4206493; 
557623, 4206479; 557638, 4206464; 557646, 4206461; 557653, 4206457; 
557666, 4206439; 557685, 4206401; 557720, 4206378; 557732, 4206370; 
557744, 4206366; 557754, 4206363; 557766, 4206356; 557777, 4206347; 
557806, 4206339; 557844, 4206335; 557875, 4206339; 557891, 4206338; 
557909, 4206332; 557922, 4206322; 557929, 4206311; 557932, 4206302; 
557933, 4206290; 557931, 4206279; 557912, 4206258; 557881, 4206230; 
557868, 4206212; 557855, 4206209; 557767, 4206228; 557761, 4206230; 
557763, 4206233; 557769, 4206238; 557781, 4206246; 557765, 4206285; 
557754, 4206299; 557753, 4206314; 557731, 4206312; 557678, 4206320; 
557643, 4206337; 557616, 4206357; 557608, 4206372; 557602, 4206385; 
557601, 4206396; 557588, 4206403; 557569, 4206399; 557550, 4206385; 
557528, 4206380; 557508, 4206385; 557502, 4206406; 557496, 4206413; 
557493, 4206428; 557489, 4206444; 557482, 4206462; 557474, 4206472; 
557465, 4206474; 557457, 4206476; 557445, 4206474; 557440, 4206469; 
557436, 4206461.
    (ii) Note: Unit 3 for Cordylanthus mollis ssp. mollis is depicted 
on Map 4, which follows:
BILLING CODE 4310-55-P

[[Page 18491]]

[GRAPHIC] [TIFF OMITTED] TP11AP06.006

BILLING CODE 4310-55-C

[[Page 18492]]

    (10) Unit 5 for Cordylanthus mollis ssp. mollis: Southampton Marsh, 
Solano County, California.
    (i) Unit 5: Land bounded by the following UTM zone 10, NAD 1983 
coordinates (E, N): 570411, 4215261; 570504, 4215198; 570595, 4215141; 
570581, 4215120; 570582, 4215104; 570590, 4215091; 570627, 4215082; 
570640, 4215081; 570646, 4215078; 570647, 4215073; 570643, 4215063; 
570625, 4215056; 570606, 4215052; 570594, 4215040; 570589, 4215024; 
570593, 4215004; 570607, 4214983; 570606, 4214949; 570607, 4214919; 
570616, 4214898; 570620, 4214869; 570611, 4214859; 570601, 4214815; 
570607, 4214803; 570615, 4214795; 570628, 4214771; 570639, 4214756; 
570659, 4214739; 570689, 4214737; 570706, 4214742; 570722, 4214741; 
570739, 4214732; 570758, 4214716; 570770, 4214688; 570774, 4214652; 
570766, 4214613; 570749, 4214580; 570739, 4214558; 570750, 4214539; 
570771, 4214516; 570792, 4214494; 570810, 4214506; 570834, 4214540; 
570836, 4214555; 570842, 4214566; 570849, 4214569; 570906, 4214566; 
570910, 4214575; 570926, 4214610; 570946, 4214630; 570967, 4214627; 
570974, 4214587; 570978, 4214555; 570987, 4214480; 570975, 4214453; 
570968, 4214400; 570970, 4214360; 570986, 4214324; 571019, 4214293; 
571061, 4214263; 571147, 4214219; 571179, 4214204; 571221, 4214180; 
571247, 4214152; 571256, 4214116; 571270, 4214116; 571282, 4214109; 
571288, 4214101; 571289, 4214091; 571279, 4214088; 571278, 4214076; 
571294, 4214069; 571298, 4214063; 571294, 4214053; 571275, 4214066; 
571257, 4214069; 571234, 4214068; 571222, 4214057; 571211, 4214038; 
571211, 4214017; 571212, 4213995; 571215, 4213978; 571225, 4213964; 
571227, 4213952; 571219, 4213945; 571208, 4213950; 571210, 4213958; 
571200, 4213968; 571177, 4213969; 571164, 4213957; 571155, 4213946; 
571125, 4213929; 571109, 4213924; 571077, 4213918; 571043, 4213905; 
571031, 4213893; 570999, 4213886; 570979, 4213875; 570948, 4213819; 
570950, 4213808; 570950, 4213796; 570947, 4213785; 570936, 4213770; 
570936, 4213754; 570930, 4213737; 570925, 4213733; 570911, 4213693; 
570907, 4213668; 570899, 4213652; 570884, 4213627; 570873, 4213602; 
570859, 4213560; 570838, 4213534; 570834, 4213513; 570826, 4213498; 
570826, 4213488; 570820, 4213479; 570809, 4213467; 570806, 4213447; 
570796, 4213433; 570795, 4213417; 570799, 4213408; 570796, 4213390; 
570798, 4213376; 570796, 4213343; 570780, 4213346; 570766, 4213351; 
570752, 4213357; 570739, 4213365; 570730, 4213379; 570732, 4213416; 
570725, 4213446; 570641, 4213647; 570629, 4213707; 570611, 4213810; 
570606, 4213823; 570598, 4213834; 570578, 4213854; 570565, 4213875; 
570562, 4213891; 570561, 4213954; 570558, 4213979; 570555, 4213993; 
570550, 4214006; 570539, 4214020; 570528, 4214031; 570510, 4214056; 
570495, 4214091; 570475, 4214160; 570469, 4214178; 570436, 4214258; 
570445, 4214272; 570450, 4214281; 570449, 4214297; 570438, 4214308; 
570422, 4214316; 570416, 4214331; 570415, 4214358; 570407, 4214435; 
570395, 4214459; 570380, 4214478; 570372, 4214489; 570360, 4214514; 
570353, 4214529; 570349, 4214563; 570344, 4214626; 570335, 4214670; 
570329, 4214728; 570331, 4214760; 570336, 4214843; 570350, 4214894; 
570364, 4214925; 570373, 4214927; 570394, 4214921; 570423, 4214905; 
570437, 4214908; 570451, 4214910; 570490, 4214903; 570540, 4214884; 
570544, 4214897; 570469, 4214926; 570465, 4214952; 570458, 4214965; 
570446, 4214973; 570425, 4214981; 570410, 4214992; 570407, 4215005; 
570408, 4215025; 570420, 4215050; 570434, 4215056; 570436, 4215072; 
570434, 4215100; 570406, 4215127; 570407, 4215143; 570412, 4215166; 
570408, 4215189; 570401, 4215216; 570400, 4215236; 570402, 4215249; 
570411, 4215261.
    (ii) Note: Unit 5 for Cordylanthus mollis ssp. mollis is depicted 
on Map 5, which follows:

BILLING CODE 4310-55-P

[[Page 18493]]

[GRAPHIC] [TIFF OMITTED] TP11AP06.007

* * * * *

    Dated: March 31, 2006.
Matt Hogan,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-3343 Filed 4-10-06; 8:45 am]
BILLING CODE 4310-55-C