[Federal Register Volume 72, Number 104 (Thursday, May 31, 2007)]
[Rules and Regulations]
[Pages 30279-30297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-10448]



[[Page 30279]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV18


Endangered and Threatened Wildlife and Plants; Clarification of 
the Economic and Non-Economic Exclusions for the Final Designation of 
Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal 
Pool Plants in California and Southern Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Clarification of final critical habitat exclusions.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) provide a 
clarification of the economic and non-economic exclusions under section 
4(b)(2) of the Endangered Species Act of 1973, as amended (Act), in 
support of the final designation of critical habitat for four vernal 
pool crustaceans and eleven vernal pool plants in California and 
Southern Oregon. We are taking this action in response to a court 
order. This clarification does not change the areas designated as 
critical habitat for the 15 vernal pool species.

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA 
95825 (telephone 916-414-6600; facsimile 916-414-6712). Persons who use 
a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On August 6, 2003, the Service published a final rule designating 
critical habitat for 4 vernal pool crustaceans and 11 vernal pool plant 
species in California and southern Oregon (68 FR 46683). In January 
2004, Butte Environmental Council and several other organizations filed 
a complaint alleging that we: (1) Violated both the Act (16 U.S.C. 1531 
et seq.), and the Administrative Procedure Act (APA) (5 U.S.C. 551 et 
seq.) by excluding over 1 million acres from the final designation of 
critical habitat for the 15 vernal pool species; (2) violated mandatory 
notice-and-comment requirements under the Act and APA; and (3) engaged 
in an unlawful pattern, practice, and policy by failing to properly 
consider the economic impacts of designating critical habitat. On 
October 28, 2004, the court signed a Memorandum and Order in that case. 
The Memorandum and Order remanded the final designation to the Service 
in part. In particular, the court ordered us to: (1) Reconsider the 
exclusions from the final designation of critical habitat for the 15 
vernal pool species, with the exception of those lands within the 5 
California counties that were excluded based on potential economic 
impacts, and publish a new final determination as to those lands within 
120 days; and (2) reconsider the exclusion of the 5 California counties 
based on potential economic impacts and publish a new final 
determination no later than July 31, 2005. On December 28, 2004, we 
published in the Federal Register a reopening of the comment period to 
solicit additional comments on the exclusions. On March 8, 2005, the 
Service published a confirmation of the non-economic exclusions (70 FR 
11140) which addressed the first requirement of the October 2004 court-
ordered remand. On August 11, 2005, the Service published a final rule 
(70 FR 46924) addressing the economic exclusions under section 4(b)(2) 
of the Act which addressed the second requirement of the October 2004 
court-ordered remand.
    On November 1, 2006, the U.S. District Court for the Eastern 
District of California issued a Memorandum and Order in Home Builders 
Association of Northern California et al. v. U.S. Fish and Wildlife 
Service et al. Case No. CIV S-05-0629 WBS-GGH. The court, in its 
opinion, noted that there were limited deficiencies in the existing 
rules designating critical habitat for 15 vernal pool plant and 
invertebrate species, variously listed as threatened or endangered 
under the Act. Specifically, the court found that the Service had not 
sufficiently articulated its rationale for excluding two census tracts 
containing public works projects from critical habitat, and that the 
Service failed to consider the recovery standard under the Act, 
pursuant to the Ninth Circuit Court of Appeal's decision in Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 
(9th Cir 2004) (hereinafter Gifford Pinchot). The court remanded the 
rules to the Service for further action consistent with the court's 
findings, as well as all applicable laws, and ordered the Service to 
submit new final critical habitat rules to the Federal Register by 
March 1, 2007. On January 24, 2007, the court clarified its November 
2006 Memorandum and Order stating that the Service had adequately 
considered the recovery standard under the Act, pursuant to Gifford 
Pinchot for the non-economic exclusions. However, the court confirmed 
the remand of the economic exclusions for consideration of the recovery 
benefits of critical habitat pursuant to the Gifford Pinchot decision. 
The court granted an additional 120 days from January 24, 2007 for the 
Service to address the issues in both orders. This clarification of 
final critical habitat exclusions complies with the court's November 
2006 and January 2007 Memorandum and Orders.
    Since the publication of our August 11, 2005 final rule, we have 
received four petitions to revise critical habitat for the four vernal 
pool crustaceans and eleven vernal pool plants in California and 
Southern Oregon. Under the terms of the court ordered remand described 
above, we have reanalyzed the exclusions from critical habitat and 
separately evaluated the information contained within the petitions. We 
have concluded that the petitions do not contain substantial new 
information that would warrant revision of critical habitat.

Application of Section 4(a)(3) 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. Finally, State, local, or 
private management plans, as well as management under Federal agencies' 
jurisdictions, can provide needed protections and management making 
designation of critical habitat unnecessary. When we consider a plan to 
determine its adequacy in protecting habitat, we consider whether the 
plan, as a whole, will provide the same level of protection that 
designation of critical habitat would provide. The plan needs to 
provide the equivalent protection of critical habitat. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the primary constituent elements (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.
    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

[[Page 30280]]

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, and 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 Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (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 critical habitat 
designation for the 15 vernal pool species were analyzed for exemption 
under the authority of section 4(a)(3) of the Act.

Approved INRMPs

Travis Air Force Base
    Travis Air Force Base (AFB) has several vernal pool complexes that 
support the vernal pool fairy shrimp and Lasthenia conjugens and that 
also contain PCEs for Neostapfia colusana, Conservancy fairy shrimp, 
Tuctoria mucronata, and vernal pool tadpole shrimp. As a result of 
wetland surveys, Travis AFB had identified 235 vernal pools on 
approximately 100 acres (ac) (40 hectares (ha)) of the 1,100 ac (445 
ha) that are not developed on the base. To date, only Lasthenia 
conjugens and the vernal fairy shrimp have been discovered on Travis 
AFB within these 100 ac (40 ha). Travis AFB has a Service-approved 
INRMP in place that provides a benefit for the vernal pool fairy shrimp 
and Lasthenia conjugens and that provides protection of the PCEs for 
Neostapfia colusana, Conservancy fairy shrimp, Tuctoria mucronata, and 
vernal pool tadpole shrimp. The INRMP was approved on April 16, 2003.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp and Lasthenia conjugens, Neostapfia colusana, Conservancy fairy 
shrimp, Tuctoria mucronata, and vernal pool tadpole shrimp. Therefore, 
Travis AFB is exempt from inclusion in the designation of critical 
habitat for the 15 vernal pool species under section 4(a)(3) of the 
Act. This does not result in a change to the areas currently designated 
as critical habitat for the 15 vernal pool species.
Beale Air Force Base
    Beale Air Force Base (AFB) has several substantial vernal pool 
complexes that support the vernal pool fairy shrimp and vernal pool 
tadpole shrimp, especially on the western side of the base. A final 
revised INRMP was approved by the Service on February 26, 2006, and 
provides a benefit for the vernal pool fairy shrimp and vernal pool 
tadpole shrimp. The completed INRMP provides for management and 
conservation of vernal pools within the base and establishes a Vernal 
Pool Conservation and Management Area to protect vernal pool complexes 
on the western side of the base. The Beale AFB is also currently 
preparing a Habitat Conservation Management Plan (HCMP) for the area. 
We will consult with Beale AFB under section 7 of the Act on the 
development and implementation of the HCMP and base comprehensive plan. 
The Beale AFB INRMP provides a benefit for the vernal pool fairy shrimp 
and vernal pool tadpole shrimp.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp and vernal pool tadpole shrimp. Therefore, Beale AFB is exempt 
from inclusion in the designation of critical habitat for the 15 vernal 
pool species under section 4(a)(3) of the Act. This does not result in 
a change to the areas currently designated as critical habitat for the 
15 vernal pool species.
Camp Roberts
    Camp Roberts has substantial vernal pool complexes that support the 
vernal pool fairy shrimp. Camp Roberts completed their INRMP in 1999. 
We will consult with Camp Roberts under section 7 of the Act on the 
development and implementation of their revised INRMP. The INRMP that 
is currently in place provides for the vernal pool fairy shrimp and the 
features essential to its conservation and recovery occurring on Camp 
Roberts.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp. Therefore, Camp Roberts is exempt from inclusion in the 
designation of critical habitat for the 15 vernal pool species under 
section 4(a)(3) of the Act. This does not result in a change to the 
areas currently designated as critical habitat for the 15 vernal pool 
species.
Fort Hunter Liggett
    Fort Hunter Ligget has several substantial vernal pool complexes 
that support the vernal pool fairy shrimp. Fort Hunter Liggett 
completed its INRMP in 2004. The INRMP provides for management and 
conservation of vernal pool fairy shrimp and vernal pools, and 
establishes sensitive resource protection areas (SRPA). High quality 
vernal pools are found in SRPA 3, where current and proposed uses 
include vehicle travel on existing roads only, foot traffic, 
maintenance of roads and facilities, landings by helicopters, and 
habitat improvement projects. Ground disturbing activities are 
restricted. All other activities require coordination with the 
Environmental Office to ensure sensitive resources are not adversely 
affected. Fort Hunter Liggett's INRMP was approved by the Service in a 
programmatic biological opinion (1-8-02-F-29R) in March 2005.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp on Fort Hunter Liggett. Therefore, Fort Hunter Liggett is exempt 
from inclusion in the designation of critical habitat for the 15 vernal 
pool species under section 4(a)(3) of the Act. This does not result in 
a change to the areas currently designated as critical habitat for the 
15 vernal pool species.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and

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revised, on the basis of the best available scientific data after 
taking into consideration the economic impact, impact on national 
security, and any other relevant impact of specifying any particular 
area as critical habitat. The Secretary may exclude an area from 
critical habitat if he determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless 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 Congressional record is clear that the Secretary is 
afforded broad discretion regarding which factor(s) to use and how much 
weight to give to any factor.
    Under section 4(b)(2) of the Act, 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, and 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.

Benefits of Designating Critical Habitat

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 the 15 vernal pool species. 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, Habitat 
Conservation Plans (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 educational benefit: that 
the 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 
educational benefit gained from the designation of critical habitat for 
the exclusions that we made in the final rules re-evaluating non-
economic and economic exclusions (70 FR 11140, March 8, 2005; 70 FR 
46924, August 11, 2005, respectively) because these areas were included 
in the proposed rule (67 FR 59884, September 24, 2002) as having 
habitat containing the features essential to the conservation of the 
species. Consequently, we believe that the educational benefits are 
already provided, even though these areas are not designated as 
critical habitat. Additionally, the purpose normally served by the 
designation, that of informing State agencies and local governments 
about areas which would benefit from protection and enhancement of 
habitat for the 15 vernal pool species, is already well established 
among State and local governments, and Federal agencies in those areas 
that we excluded from critical habitat in the final rules on the basis 
of other existing habitat management protections such as those on 
National Wildlife Refuges, State protected lands, or local government 
Habitat Conservation Plans.
    The information provided in this section applies to all the 
discussions below concerning the benefits of inclusion and exclusion of 
critical habitat.
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 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 found almost exclusively on Federal lands (90 to 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 Department of the Interior's Cooperative 
Conservation philosophy. This philosophy is evident in Service programs 
such as Habitat Conservation Plans (HCPs), Safe Harbor Agreements, 
Candidate Conservation Agreements, Candidate Conservation Agreements 
with Assurances, and conservation challenge cost-share. Many private 
landowners, however, are wary of the possible consequences of 
encouraging endangered species to utilize 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 Department of the Interior's Cooperative Conservation 
philosophy 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 landowners in 
their voluntary efforts to protect threatened, imperiled, and 
endangered species, including the development and implementation of 
HCPs.
    Conservation agreements with non-Federal landowners (HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
protections for species 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

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through coercive methods (61 FR 63854; December 2, 1996).
    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 
critical habitat alone.
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 under 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 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 
measures and terms and conditions to implement such measures are only 
specified when the proposed action would result in the incidental take 
of a listed animal or species. Reasonable and prudent alternatives to 
the proposed Federal action would only be suggested 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 combined the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat when evaluating Federal actions that affect currently occupied 
critical habitat. However, in Gifford Pinchot the Court ruled that the 
two standards are distinct 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 often 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.
Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans From Critical Habitat
    The benefits of excluding lands with HCPs or other approved 
management plans from critical habitat designation include relieving 
landowners, communities, counties, and States of any additional 
regulatory burden that might be imposed by a critical habitat 
designation. Most HCPs and other conservation plans take many years to 
develop and, upon completion, are consistent with the recovery 
objectives for listed species to the extent known that are covered 
within the plan area. Many conservation plans also provide conservation 
benefits to unlisted sensitive species. Imposing an additional 
regulatory review as a result of the designation of critical habitat 
may undermine conservation efforts and partnerships designed to 
proactively protect species to ensure that listing under the Act will 
not be necessary. Designation of critical habitat within the boundaries 
of management plans that provide conservation measures for a species 
could be viewed as a disincentive to those entities currently 
developing these plans or contemplating them in the future, because one 
of the incentives for undertaking conservation is greater ease of 
permitting where listed species are affected. Addition of a new 
regulatory requirement would remove a significant incentive for 
undertaking the time and expense of management planning. In fact, 
designating critical habitat in areas covered by a pending HCP or 
conservation plan could result in the loss of some species' benefits if 
participants abandon the planning process, in part because of the 
strength of the perceived additional regulatory compliance that such 
designation would entail. The time and cost of regulatory compliance 
for a critical habitat designation do not have to be quantified for 
them to be perceived as additional Federal regulatory burden sufficient 
to discourage continued participation in plans targeting listed 
species' conservation.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered,

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continued ability to seek new partnerships with future plan 
participants including States, counties, local jurisdictions, 
conservation organizations, and private landowners, which together can 
implement conservation actions that we would be unable to accomplish 
otherwise. When critical habitat is designated on a managed area, it 
increases the likelihood that the managers of that area will perceive 
the designation to be an additional regulatory control over their 
management plan. If lands within approved management plan areas are 
designated as critical habitat, it would likely have a negative effect 
on our ability to establish new partnerships to develop and implement 
these plans, particularly plans that address landscape-level 
conservation of species and habitats. By preemptively excluding these 
lands, we preserve our current partnerships and encourage additional 
conservation actions in the future.
    Furthermore, an HCP or Natural Community Conservation Plans (NCCP)/
HCP application must itself be consulted upon. Such a consultation 
would review the effects of all activities covered by the HCP which 
might adversely impact the species under a jeopardy standard, including 
possibly significant habitat modification (see definition of ``harm'' 
at 50 CFR 17.3), even without the critical habitat designation. In 
addition, Federal actions not covered by the HCP in areas occupied by 
listed species would still require consultation under section 7 of the 
Act and would be reviewed for possibly significant habitat modification 
in accordance with the definition of harm referenced above.
    The information provided in this section applies to the discussion 
below regarding the benefits of inclusion and exclusion of critical 
habitat.

Exclusions Under Section 4(b)(2) of the Act

    After consideration under section 4(b)(2) of the Act, the following 
areas of habitat have been excluded from critical habitat for the 15 
vernal pool species: San Joaquin County Multi-Species Habitat 
Conservation Plan; Western Riverside Multiple Species Habitat 
Conservation Plan; Santa Rosa Plateau Ecological Reserve; Warm Springs 
Unit of the Don Edwards National Wildlife Refuge Complex; Kern, San 
Luis, and Sacramento National Wildlife Refuge Complexes; and the 
Coleman National Fish Hatchery Complex; Battle Creek, Big Sandy, 
Grizzly Island, Hill Slough, North Grasslands, and Oroville California 
Department of Fish and Game Wildlife Areas; State-owned lands within 
Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo 
Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, 
Stone Corral, and Thomes Creek Ecological Reserves; Carrizo Plain 
National Monument; Mechoopda Tribal lands; and other areas where the 
designation of critical habitat has been determined to show a 
disproportionately high economic cost (See Economics section below). We 
believe that: (1) These lands' value for conservation has been 
addressed by existing protective actions or (2) they are appropriate 
for exclusion pursuant to the ``other relevant factor'' provisions of 
section 4(b)(2) of the Act. A detailed analysis of our exclusion of 
these lands under section 4(b)(2) of the Act is provided in the 
paragraphs that follow.

Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act

    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides the same or better level of protection from adverse 
modification or destruction than that provided through a consultation 
under section 7 of the Act; (2) there is a reasonable expectation that 
the conservation management strategies and actions will be implemented 
based on past practices, written guidance, or regulations; and (3) the 
plan provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology. We believe that 
the San Joaquin County Multiple-Species Habitat Conservation Plan and 
the Western Riverside Multiple Species Habitat Conservation Plan 
fulfill these criteria, and we excluded non-federal lands covered by 
these plans that provide for the conservation of the 15 vernal pool 
species.

San Joaquin County Multiple-Species Habitat Conservation Plan (MSCP)

    The San Joaquin County Multi-Species Habitat Conservation Plan 
(SJMSCP) encompasses all of San Joaquin County with the exception of 
Federally-owned lands and the following specific projects: Tracy Hills, 
the American River Water Resources Investigation Project, Folsom South 
Canal Connection of the East Bay Municipal Utility District 
Supplemental Water Supply Program, and the South County Surface Water 
Supply Project. The SJMSCP identifies the vernal pool fairy shrimp and 
the vernal pool tadpole shrimp as covered species. The SJMSCP also 
identifies and classifies areas where growth and development are 
expected to occur as build-out areas. A portion of one of these build-
out areas overlaps with the San Joaquin Unit 18 for vernal pool fairy 
shrimp. The SJMSCP limits the amount of vernal pool loss to 15 wetted 
ac (6 ha) per year up to a maximum cap of 707 wetted ac (286 ha) and 
5,894 ac (2,385 ha) of vernal pool grassland over the 50-year life of 
the plan. Additionally, the SJMSCP requires the preservation of 2 acres 
and creation of 1 acre of vernal pool habitat for every 1 acre that is 
impacted; resulting in a total of 3 acres of vernal pool preserves for 
each impacted acre. Preserves include both wetted surface area and 
upland grasslands surrounding vernal pools, thereby protecting both the 
vernal pools and their watersheds. The creation component of this 
mitigation emphasizes restoration of pre-existing vernal pools, 
wherever feasible. The SJMSCP has been finalized and includes 
participants from seven cities; the County of San Joaquin; the San 
Joaquin Council of Governments; various water districts within the 
County; the California Department of Transportation; East Bay Municipal 
Utility District; and the San Joaquin Area Flood Control District. The 
SJMSCP is a subregional plan under the State's Natural Community 
Conservation Planning (NCCP) program and was developed in cooperation 
with California Department of Fish and Game (CDFG). Within the county-
wide planning area of the SJMSCP, approximately 71,837 ac (29,071 ha) 
of diverse habitats are proposed for conservation. The proposed 
conservation of 71,837 ac (29,071 ha) will compliment other existing 
natural and open space areas that are already conserved through other 
means (e.g., State Parks, USFWS, and County Park lands). For a complete 
discussion of the SJMSCP, please refer to our August 6, 2003 (68 FR 
46684) and March 8, 2005 (70 FR 11140) final designations.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the SJMSCP and have determined that 
the benefits of excluding the 10 ac (4 ha) of designated critical 
habitat for vernal pool fairy shrimp protected by the SJMSCP outweigh 
the benefits of maintaining these lands as critical habitat. As 
discussed above in detail and outlined below, the SJMSCP will provide 
for significant preservation and management of habitat for vernal pool 
fairy shrimp and other listed vernal pool species. Implementation of 
the SJMSCP will help reach the recovery goals for

[[Page 30284]]

each of the species. Additionally, by excluding critical habitat for 
the listed species, we are enhancing our relationship with these 
conservation partners and facilitating future conservation 
partnerships.
    Furthermore, implementation of the SJMSCP will contribute to the 
recovery of vernal pool fairy shrimp and other listed vernal pool 
species under the Act in part by maintaining and managing the 
geomorphic and ecological processes of the landscape in large, well-
placed blocks of habitat where the vernal pool fairy shrimp are found 
within the SJMSCP such that vernal pool fairy shrimp are likely to be 
conserved and therefore persist indefinitely. Since the PCEs required 
by the listed vernal pool fairy shrimp are similar, the conservation 
measures outlined in the SJMSCP will benefit both vernal pool fairy 
shrimp and other listed vernal pool species. These conservation 
measures include limiting the amount of vernal pool impact to 15 wetted 
ac (6 ha) per year up to a maximum cap of 707 wetted ac (286 ha) and 
5,894 ac (2,385 ha) of vernal pool grassland over the 50-year life of 
the plan and requiring preservation of 2 acres and creation of 1 acre 
of vernal pool habitat for every 1 acre that is impacted, resulting in 
a total of 19,803 acres of vernal pool preserves. Preserves include 
both wetted surface area and upland grasslands surrounding vernal pools 
and protecting their watersheds. The creation component of this 
mitigation emphasizes restoration of pre-existing vernal pools, 
wherever feasible. The collection of preconstruction survey information 
is required to ensure that vernal pool compensation habitat reflects 
vernal pool types that are impacted. Measures to minimize take include 
conducting preconstruction surveys, excavating, leveling, or filling 
pools only after they have completely dried, and removing the topmost 
soil layer from pools prior to impacts for possible use as inoculum of 
future created vernal pool habitats. Protection and management of the 
PCEs within the SJMSCP occurs primarily through the formation of vernal 
pool preserves that protect habitat in perpetuity and maintain the 
physical and ecological characteristics of occupied habitat within the 
vernal pool preserves. Designation of critical habitat alone does not 
achieve recovery or require management of those lands identified in the 
critical habitat rule; however, management and habitat conservation 
associated with implementation of the SJMSCP will help provide for 
recovery of vernal pool species, even though we are not designating 
critical habitat in this area. We believe that the recovery benefits of 
excluding these lands and implementing the SJMSCP outweighs the 
recovery benefits of including these lands in critical habitat.
    We also believe that the benefits of implementation of the SJMSCP 
outweigh the regulatory benefits of designation of critical habitat 
under section 7 of the Act. The Service has completed section 7 
consultation on the SJMSCP (1-1-00-F-231) and should the lands covered 
by the SJMSCP be designated as critical habitat, consultations under 
section 7 would only commit Federal agencies to prevent adverse 
modification to the critical habitat and not require the conservation, 
long-term benefits, positive improvements, or enhancement of habitat 
described in the SJMSCP. Therefore, implementation of the SJMSCP that 
provides for the conservation of these species provides more benefit 
than would critical habitat designation of these lands for these 
species.
    We have reviewed and evaluated the proposed exclusion of the 
portion of Unit 18 within the SJMSCP from the final designation of 
critical habitat, and have determined that the benefits of excluding 
the portion of Unit 18 within the SJMSCP outweigh the benefits of 
including these lands. The SJMSCP contains limits to conversions of 
vernal pool habitats and requires the collection of preconstruction 
survey information to ensure that vernal pool compensation reflects 
pool types that are impacted. Additionally, the SJMSCP contains a 
variety of measures to avoid, minimize, and mitigate for effects on 
listed vernal pool species. Mitigation measures to compensate for 
habitat conversion require 1:1 creation and 2:1 preservation for vernal 
pool habitats. Measures to minimize take include conducting 
preconstruction surveys and filling, excavating, or leveling vernal 
pools only after they have completely dried, and taking the topmost 
soil layer from pools prior to impacts for possible use in inoculation 
of future created vernal pool habitats. Of the 42,073 ac (17,026 ha) of 
suitable habitat for vernal pool crustaceans identified in the SJMSCP, 
only 707 wetted ac (286 ha) and 5,894 ac (2,385 ha) of vernal pool 
grassland are proposed for conversion. These specific conservation 
actions and management for listed vernal pool species and their PCEs as 
well as the general ecological benefits of large scale HCP planning 
exceed any conservation value provided as a result of any regulatory 
protections that may be afforded through a critical habitat 
designation.
    The exclusion of these lands from critical habitat will also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents in the development of the SJMSCP. 
The benefits of excluding these lands from critical habitat outweigh 
the minimal benefits of including these lands as critical habitat, 
including the educational benefits of critical habitat through 
informing the public of areas important for the long-term conservation 
of this species, because these educational benefits can still be 
accomplished from materials provided on our Web site (http://www.fws.gov/sacramento). Further, many educational benefits of critical 
habitat designation have already been achieved through the overall 
designation and notice and public comment, and will continue to occur 
whether or not this particular unit were to be designated.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of a portion of Unit 18 from 
the final designation of critical habitat will result in the extinction 
of the vernal pool fairy shrimp. Overall, this area represents a small 
portion of the species range and the conservation measures as outlined 
in the SJMSCP greatly exceed those that may be afforded by the 
designation of critical habitat.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of these lands from critical habitat leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.

Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)

    The Western Riverside MSHCP has been finalized since the issuance 
of the August 6, 2003, rule. The Western Riverside MSHCP includes 
participants from 14 cities; the County of Riverside, including the 
County Flood Control and Water Conservation District; the County Waste 
Department; the California Department of Transportation; and the 
California Department of Parks and Recreation. The Western Riverside 
MSHCP is a subregional plan under the State's Natural Community 
Conservation Planning (NCCP) program and was developed in cooperation 
with California Department of Fish and Game (CDFG). Within the 1.26 
million-ac (510,000-ha) planning area of the

[[Page 30285]]

MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are 
proposed for conservation. The proposed conservation of 153,000 ac 
(62,000 ha) will compliment other existing natural and open space areas 
that are already conserved through other means (e.g., State Parks, 
USFS, and County Park lands). For a complete discussion of this HCP, 
please refer to our August 6, 2003 (68 FR 46684) and March 8, 2005 (70 
FR 11140) final rules. The strategy implemented by the Western 
Riverside County MSHCP is to conserve at least 3,123 ac (1,264 ha) of 
habitat in three core areas representing the three known populations of 
vernal pool fairy shrimp in Riverside County. Conservation in this area 
will cover units 34 and 35 and include large blocks of habitat for the 
vernal pool fairy shrimp. In addition, other areas identified as 
important to the species will be conserved through the implementation 
of prescriptions set forth in the plan. The MSHCP requires that prior 
to construction activities, wetland habitats be identified and 
surveyed, and if significant impacts are proposed in occupied habitat, 
that 90 percent of the occupied portions of the site be conserved and 
therefore continue to provide for the long-term conservation of the 
vernal pool fairy shrimp.
    The Skunk Hollow mitigation bank (the official title is the Barry 
Jones Wetland Mitigation Bank) and the Santa Rosa Plateau Preserve are 
within the planning area of the Western Riverside County MSHCP. Both of 
these areas are conserved as part of the Western Riverside County 
MSHCP. The management actions undertaken as part of the Western 
Riverside County MSHCP benefit the endangered Riverside fairy shrimp, 
threatened Navarretia fossalis, and the endangered Orcuttia 
californica, which are included as covered species under this regional 
HCP. The management actions will also provide equal conservation 
benefits for the vernal pool fairy shrimp.
    The Skunk Hollow vernal pool basin (Unit 35) consists of a single, 
large vernal pool and associated watershed in western Riverside County. 
This unit and vernal pool basin are covered by the Western Riverside 
County MSHCP. Several federally listed species have been documented as 
occurring in the Skunk Hollow vernal pool basin. These include the 
vernal pool fairy shrimp (Western Riverside County MSHCP 2003, pp. C18-
26), the Riverside fairy shrimp (Service 2001, p. 29389), Navarretia 
fossalis, and Orcuttia californica (Service 1998, p. 9). The vernal 
pool complex and associated watershed are also currently protected as 
part of a reserve established within an approved wetland mitigation 
bank in the Rancho Bella Vista HCP area, and as part of the 
conservation measures contained in the Assessment District 161 
Subregional HCP (AD161 HCP), all of which have been incorporated into 
the Western Riverside County MSHCP. Although the Skunk Hollow does not 
identify the vernal pool fairy shrimp as a covered species, it does 
list the endangered Riverside fairy shrimp as a covered species and 
protects all the vernal pool habitat within the area, as well as the 
PCEs upon which the species relies. In this case, since species which 
rely on the same ecosystem are the target of the HCP and mitigation 
bank, we are able to conclude that the plan will provide the necessary 
management to protect the vernal pools. In addition, since the entire 
habitat area is addressed under the HCP, preserve, and mitigation bank 
areas, and not just habitat with a federal nexus (as is the case with 
critical habitat), the existing management already provides more 
protection than can be provided by a critical habitat designation.
    The Western Riverside County MSHCP also encompasses lands within 
the Santa Rosa Plateau Ecological Reserve (SRPER) (Unit 34 for vernal 
pool fairy shrimp), an area that covers approximately 8,300 ac (3,360 
ha) near the town of Murrieta, California. The SRPER is situated on a 
large mesa composed of basaltic and granitic substrates and contains 
one of the largest vernal pool complexes remaining in southern 
Riverside County. Several endemic vernal pool species are known to 
occur within the complex, including the vernal pool fairy shrimp, 
Riverside fairy shrimp, Santa Rosa fairy shrimp (Linderiella 
santarosae), Orcuttia californica, Brodiaea filifolia (Threadleaved 
brodiaea), and Eryngium aristulatum var. parishii (San Diego button-
celery).
    SRPER is owned and managed by CDFG. As a signatory to the 
Implementing Agreement for the Western Riverside County MSHCP, CDFG 
oversees the SRPER consistent with the conservation management scheme 
agreed to by all cooperating agencies and signatories. The CDFG has a 
broad authority to protect lands and conserve species (Fish and Game 
Code, sections 2700 et seq.)

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the Western Riverside County MSHCP 
and have determined that the benefits of excluding the 10,214 ac (4,134 
ha) of designated critical habitat for the vernal pool and Riverside 
fairy shrimp protected, directly and indirectly, by the Western 
Riverside County MSHCP outweigh the benefits of maintaining these lands 
as critical habitat. Although Riverside fairy shrimp is not addressed 
by the Western Riverside County MSHCP, it is anticipated that this 
species will benefit from the Western Riverside County MSHCP because 
this species occurs in areas also occupied by the listed vernal pool 
fairy shrimp, which is protected under the Western Riverside County 
MSHCP. Therefore, we believe that Riverside fairy shrimp will directly 
receive protection under the Western Riverside County MSHCP. We have 
determined that the management and protections afforded the vernal pool 
fairy shrimp in the Western Riverside County MSHCP are adequate for the 
long-term conservation of these species. The Western Riverside County 
MSHCP provides protection for the affected vernal pool complex and its 
associated watershed in perpetuity. Therefore it addresses the primary 
conservation needs of the species by protecting the ecosystem upon 
which it relies. As discussed above in detail and outlined below, the 
Western Riverside County MSHCP will provide for significant 
preservation and management of habitat for vernal pool fairy shrimp and 
Riverside fairy shrimp. Implementation of the Western Riverside County 
MSHCP will help reach the recovery goals for each of the species. 
Additionally, by excluding critical habitat on these lands for the 
listed species, we are enhancing our relationship with these 
conservation partners and facilitating future conservation partnerships 
by providing an incentive to develop and complete existing and future 
habitat conservation measures for federally listed species.
    Furthermore, implementation of the Western Riverside County MSHCP 
will contribute to the recovery of vernal pool fairy shrimp and 
Riverside fairy shrimp under the Act in part by maintaining and 
managing the geomorphic and ecological processes of the landscape in 
large, well-placed blocks of habitat where these species are found 
within the Western Riverside County MSHCP such that the vernal pool 
fairy shrimp and Riverside fairy shrimp are likely to be conserved and 
therefore persist indefinitely. Since the PCEs required by the listed 
vernal pool fairy shrimp and Riverside fairy shrimp are similar, the 
conservation measures outlined in the Western Riverside County MSHCP 
will benefit these listed species. The strategy implemented by the 
Western Riverside

[[Page 30286]]

County MSHCP is to conserve at least 3,123 ac (1,264 ha) of habitat in 
three core areas (representing the three known populations in Riverside 
County) comprised of large blocks of habitat for the vernal pool fairy 
shrimp. Designation of critical habitat would not achieve recovery, by 
itself, or require management of these lands. We believe that the 
recovery benefits of excluding these lands and implementing the Western 
Riverside County MSHCP outweighs the recovery benefits of including 
these lands in critical habitat.
    We also believe that the benefits of implementation of the Western 
Riverside County MSHCP outweigh the regulatory benefits of designation 
of critical habitat under section 7 of the Act. The Service has 
completed section 7 consultation on the Western Riverside County MSHCP 
and should the critical habitat remain in place, consultations under 
section 7 would only commit Federal agencies to prevent adverse 
modification to the critical habitat and not require the conservation, 
long-term benefits, positive improvements, or enhancement of habitat 
described in the Western Riverside County MSHCP. Therefore, 
implementation of the Western Riverside County MSHCP that provides for 
the conservation of these species provides more benefit than would the 
critical habitat designation of these lands for these species.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of Units 34 and 35 from the 
final designation of critical habitat will result in the extinction of 
the vernal pool fairy shrimp. The strategy implemented by the Western 
Riverside County MSHCP is to conserve at least 3,123 ac (1,264 ha) of 
habitat in three core areas (representing the three known populations 
in Riverside County) comprised of large blocks of habitat for the 
vernal pool fairy shrimp. In addition, other areas identified as 
important to the species will be conserved through the implementation 
of prescriptions set forth in the plan. Wetland habitats will be 
identified and surveyed, and, if significant impacts are proposed and 
survey results are positive, 90 percent of the occupied portions of the 
property that provide for the long-term conservation value for the 
vernal pool fairy shrimp will be conserved.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of critical habitat leaves these protections unchanged from 
those that would exist if the excluded areas were to be designated as 
critical habitat.

Relationship of Critical Habitat to National Wildlife Refuge and 
National Fish Hatchery Lands--Exclusions Under Section 4(b)(2) of the 
Act

    We have determined that proposed critical habitat units on the Don 
Edwards, Kern, San Luis, and Sacramento National Wildlife Refuge 
Complexes, and the Coleman National Fish Hatchery Complex, warrant 
exclusion pursuant to section 4(b)(2) of the Act because the benefits 
of excluding these lands from final critical habitat outweigh the 
benefits of their inclusion. For a complete discussion of these 
National Wildlife Refuges and National Fish Hatchery Lands, please 
refer to our August 6, 2003 (68 FR 46684) and March 8, 2005 (70 FR 
11140) final designations. National Wildlife Refuge and National Fish 
Hatchery lands are already managed for the conservation of wildlife, 
and the purpose of these lands is already to preserve natural resource 
values. Below we will discuss each of the Refuges and Fish Hatcheries 
separately, but we are providing one balancing discussion for all 
Service-owned and -managed lands.
Don Edwards National Wildlife Refuge Complex
    The Warm Spring Unit of the Don Edwards National Wildlife Refuge 
Complex has developed a draft Habitat Management Plan (HMP) for vernal 
pool species and grassland ecosystem conservation. Approximately 275 ac 
(111 ha) of vernal pool grasslands occur on the Warm Springs Unit. An 
intra-Service section 7 consultation was conducted on the HMP, and a 
concurrence memorandum was completed in June 2003 (Service file 1-1-03-
I-1852), stating that the management activities would not likely 
adversely affect the vernal pool tadpole shrimp or Lasthenia conjugens 
(Contra Costa goldfields). The HMP is expected to be finalized in 2008, 
with the completion of the Comprehensive Conservation Plan (CCP). The 
HMP establishes various habitat goals and objectives including habitat 
enhancement, restoration, and monitoring for vernal pool species. The 
HMP also establishes guidelines for management activities such as 
grazing, land disturbance activities, pesticide application, exotic 
plant removal, and water management for the refuge. These and other 
activities, when carried out as identified in the HMP, will assist in 
enhancing and conserving the vernal pool species and the vernal pool 
grassland ecosystem on the refuge.
Kern National Wildlife Refuge Complex
    The Kern National Wildlife Refuge Complex (Kern and Pixley National 
Wildlife Refuges) has an approved and signed Comprehensive Conservation 
Plan (CCP) (Service 2004a, pp 109) that provides for the protection and 
management of all trust resources, including federally listed species 
and sensitive natural habitats. One goal of the CCP is to protect, 
preserve, and restore alkali sink, alkali playa, Northern Claypan 
vernal pool, and grassland habitats within the refuge for the 
conservation of vernal pool species and grassland ecosystems. To reach 
this goal, the approved CCP provides for implementing grazing, 
prescribed burning, monitoring, and status survey programs. The CCP for 
the Kern National Wildlife Refuge Complex has been completed, and the 
associated biological opinion concluded that its implementation would 
not jeopardize the continued existence of these species (Service 2004, 
p. 4). In addition, the Kern National Wildlife Refuge Complex will 
protect vernal pool and other wetland resources through willing seller 
acquisition, conservation easements, and partnerships to acquire 
additional natural lands within the approved refuge boundary to provide 
connectivity between units (Service 2004a, p 14).
San Luis National Wildlife Refuge Complex
    Several federally listed species have been documented on the San 
Luis National Wildlife Refuge Complex (San Luis NWR), including the 
vernal pool fairy shrimp, vernal pool tadpole shrimp, Conservancy fairy 
shrimp, Chamaesyce hooveri (Hoover's spurge), Neostapfia colusana 
(Colusa grass), and the California tiger salamander (Ambystoma 
californiense). The San Luis NWR has developed and implemented several 
management activities to provide for the conservation of these species, 
including: (1) Managing and providing habitat for endangered or 
sensitive species; (2) maintaining and enhancing the overall 
biodiversity associated with the existing mix of vegetative 
communities; and (3) providing an area for compatible, management-
oriented research and education/interpretation and recreational 
programs which may include observation, photography, or hunting. 
Building upon the concepts originally outlined in the San Joaquin Basin 
Action Plan, a detailed habitat restoration plan has been developed 
specifically for the West Bear Creek

[[Page 30287]]

Unit. Fish and Wildlife Service staff at San Luis NWR directed all 
aspects of the project planning, design, and implementation. The 
habitat restoration plan included construction of wetlands including 
vernal pools, and planting and restoration of native grassland and 
woody riparian habitat. In addition, the United States Bureau of 
Reclamation, the U.S. Fish and Wildlife Service, and the California 
Department of Fish and Game, under a cooperative agreement called the 
San Joaquin Basin Action Plan, are in the process of jointly developing 
a habitat acquisition and wetland enhancement project, including vernal 
pools, on approximately 23,500 ac (9,510 ha) of lands within the 
Northern San Joaquin River Basin.
Sacramento National Wildlife Refuge Complex
    The Sacramento National Wildlife Refuge Complex (Sacramento NWR) 
develops an annual Habitat Management Plan for each Refuge within the 
complex which details actions to be implemented for the year. The plan 
outlines various resource management and enhancement activities such as 
noxious weed removal, mowing, and water management for each unit within 
each refuge and identifies sensitive species concerns if they are 
present. The refuge also undertakes annual surveying and monitoring of 
the vernal pool resources on each refuge in the complex. A formal 
biological opinion was completed for refuge activities in April 1999 
(Service file 1-1-98-F-13), stating that the management activities 
would not jeopardize the Conservancy fairy shrimp, vernal pool fairy 
shrimp, vernal pool tadpole shrimp, Orcuttia pilosa (hairy Orcutt 
grass), Tuctoria greenei (Greene's tuctoria), and Chamaesyce hooveri. 
The Sacramento NWR is also in the process of developing a Comprehensive 
Conservation Plan (CCP). The CCP is expected to be drafted by August 
2007 and finalized by August 2008.
Coleman National Fish Hatchery
    The Coleman National Fish Hatchery (Coleman NFH) owns approximately 
165 ac (67 ha) of land along Battle Creek in Shasta and Tehama 
Counties, California. Approximately 13 ac (5 ha) of grassland habitat 
were proposed as critical habitat for the vernal pool tadpole shrimp 
and Orcuttia tenuis (slender Orcutt grass). No vernal pools or vernal 
pool species occur on the hatchery lands. However, the grasslands may 
provide detritus and assist in maintaining the hydrologic functioning 
of the vernal pools and providing connectivity for the vernal pool 
resources in the area. The focus of the Coleman NFH is to provide 
spawning and rearing facilities for threatened or endangered salmonid 
species. The Coleman NFH currently does not have any plans to disturb 
or alter the areas identified as critical habitat in the proposed rule 
(67 FR 59884, September 24, 2002). Any activities that may impact these 
areas would be subject to intra-Service section 7 consultation.

Benefits of Exclusion of Refuge and Hatchery Lands Outweigh the 
Benefits of Inclusion

    We have reviewed and evaluated the National Wildlife Refuge and 
National Fish Hatchery complexes named above and have determined that 
the benefits of excluding the 42,914 ac (17,367 ha) of proposed 
critical habitat for the vernal pool species protected, directly and 
indirectly, within these areas outweigh the benefits of designating 
these lands as critical habitat. Critical habitat designation provides 
little gain in the way of increased recognition for special habitat 
values on lands that are expressly managed to protect and enhance those 
values. All of the refuges described above have or are developing 
comprehensive resource management plans that will provide for 
protection and management of all public trust resources, including 
federally listed species and sensitive natural habitats. These plans, 
and many of the management actions undertaken to implement them, must 
also complete consultation under section 7 of the Act. Therefore, any 
federal activity that is consistent with the terms of the CCP would be 
very unlikely to have an adverse effect on the primary constituent 
elements such that the habitat could no longer serve the intended 
conservation role for the species.
    We believe that the benefit of including these lands in critical 
habitat is low because they already are publicly owned and managed to 
protect and enhance unique and important natural resource values. In 
addition, by designating these lands the Service would be required to 
conduct internal consultations on activities to determine whether they 
adversely modify critical habitat. This extra and unnecessary 
regulatory process would require that funding be diverted from the 
management of the Refuge and Hatchery resources. The Service believes 
that the allocation of taxpayer funds to actions that more directly 
benefit species on the ground provides a more robust conservation 
benefit to the listed species. Exclusion of these lands will not 
increase the likelihood that management activities would be proposed 
that would appreciably diminish the value of the habitat for 
conservation of the species. Further, such exclusion will not result in 
the extinction of the vernal pool species. We, therefore, conclude that 
the benefits of excluding National Wildlife Refuge and National Fish 
Hatchery lands from the final critical habitat designation outweigh the 
benefits of including them.
    The lands essential for the conservation of the vernal pool species 
on refuge and hatchery lands are publicly owned and managed to conserve 
fish, wildlife, and plants and their habitats, including the 15 species 
that are the subject of this rule. In addition, environmental education 
and interpretation are among the priority public uses of the refuge 
system. As a result, we conclude that the benefits of excluding 
National Wildlife Refuge and National Hatchery lands from the final 
critical habitat designation outweigh the benefits of including them. 
Exclusion of these lands will not increase the likelihood that 
management activities would be proposed which would appreciably 
diminish the value of the habitat for conservation of these species. 
Designation of critical habitat on refuge or hatchery lands would 
provide redundant, but no additional, conservation value for the vernal 
pool species in terms of management emphasis, public recognition, or 
education than currently exists.

Exclusion Will Not Result in Extinction of the Species

    We conclude that the benefits of excluding National Wildlife Refuge 
and National Fish Hatchery lands from the final critical habitat 
designation outweigh the benefits of including them. Such exclusion 
will not result in the extinction of the vernal pool species because 
these publicly owned lands are managed for the protection of natural 
resources. The vernal pool and grassland resources on the Don Edwards, 
Kern, San Luis, and Sacramento National Wildlife Refuge Complexes and 
Coleman National Fish Hatchery are being managed to protect, conserve, 
and restore all vernal pool species and their habitat through CCPs, 
specific management plans, or section 7 terms and conditions. The 
refuges have developed or are developing long-term ecosystem approaches 
for managing the vernal pools and vernal pool species occurring on the 
refuges. By implementing numerous management strategies and monitoring 
for conserving the vernal pool resources on the refuges and hatchery 
lands, the long-term

[[Page 30288]]

conservation of the vernal pool species is insured.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of these lands from critical habitat leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.
    In accordance with section 4(b)(2) of the Act, we have excluded 
lands within the Don Edwards, Kern, San Luis, and Sacramento National 
Wildlife Refuge Complexes and Coleman National Fish Hatchery Complex 
from final critical habitat. The exclusion includes portions of 
Conservancy fairy shrimp Units 2 and 7; longhorn fairy shrimp Unit 2; 
vernal pool fairy shrimp Units 10, 23, 27a and 27b; vernal pool tadpole 
shrimp Units 2, 5, 14, and 16; Colusa grass Unit 7b; Contra Costa 
goldfields Unit 8; Greene's tuctoria Unit 5; hairy Orcutt grass Unit 3; 
Hoover's spurge Units 3 and 6; and slender Orcutt grass Unit 3.

Relationship of Critical Habitat to State-Managed Ecological Reserves 
and Wildlife Areas--Exclusions Under Section 4(b)(2) of the Act

    We contacted local California Department of Fish and Game (CDFG) 
resource managers and staff at the various locations to verify that no 
significant changes to vernal pool habitat and the management of this 
habitat have occurred since the August 6, 2003, final rule (68 FR 
46684). These areas continue to be managed for the benefit of common 
and special-status species and their habitats.
    We proposed as critical habitat, but excluded from the final 
designation, the CDFG-owned lands within the Battle Creek, Big Sandy, 
Grizzly Island, Hill Slough, North Grasslands, and Oroville Wildlife 
Areas and State-owned lands within Allensworth, Boggs Lake, Butte Creek 
Canyon, Calhoun Cut, Carrizo Plains, Dales Lake, Fagan Marsh, Phoenix 
Field, San Joaquin River, Stone Corral, and Thomes Creek Ecological 
Reserves. These State-managed ecological reserves and wildlife areas 
were excluded from critical habitat designation in our August 6, 2003 
(68 FR 46684) and March 8, 2005 (70 FR 11140), final designations.
    The State of California establishes ecological reserves to protect 
threatened or endangered native plants, wildlife, or aquatic organisms 
or specialized habitat types, both terrestrial and nonmarine aquatic, 
or large heterogeneous natural gene pools (Fish and Game Code, section 
1580). They are to be preserved in a natural condition, or are to be 
provided some level of protection as determined by the Fish and Game 
Commission, for the benefit of the general public to observe native 
flora and fauna and for scientific study or research (Fish and Game 
Code, section 1584). Wildlife areas are for the purposes of 
propagating, feeding, and protecting birds, mammals, and fish (Fish and 
Game Code, section 1525); however, they too provide habitat and are 
managed for the benefit of listed and sensitive species (CDFG 2003).
    Take of species except as authorized by State Fish and Game Code is 
prohibited on both State ecological reserves and wildlife areas (Fish 
and Game Code, section 1530 and section 1583). While public uses are 
permitted on most wildlife areas and ecological reserves, such uses are 
only allowed at times and in areas where listed and sensitive species 
are not adversely affected (CDFG 2003). The management objectives for 
these State lands include: ``to specifically manage for targeted listed 
and sensitive species to provide protection that is equivalent to that 
provided by designation of critical habitat; to provide a net benefit 
to the species through protection and management of the land; to ensure 
adequate information, resources, and funds are available to properly 
manage the habitat; and to establish conservation objectives, adaptive 
management, monitoring and reporting processes to assure an effective 
management program, and monitoring and reporting processes to assure an 
effective management program (CDFG 2003).''

Additional Benefits of Exclusion

    The consultation requirement associated with critical habitat on 
the CDFG's ecological reserves and wildlife areas require the use of 
resources to ensure regulatory compliance that could otherwise be used 
for on-the-ground management of the targeted listed or sensitive 
species. In the past, the State of California (State) has expressed a 
concern that the designation of these lands and associated regulatory 
requirements may cause delays that could be expected to reduce their 
ability to respond to vernal pool management issues that arise on the 
ecological reserves and wildlife areas. Therefore, the benefits of 
exclusion include relieving additional regulatory burden that might be 
imposed by the designation of critical habitat for vernal pool species, 
which could divert resources from substantive resource protection to 
procedural regulatory efforts.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the State-managed ecological 
reserves and wildlife areas named above and have determined that the 
benefits of excluding the 12,373 ac (5,007 ha) of proposed critical 
habitat for the vernal pool species protected, directly and indirectly, 
within these areas outweigh the benefits of designating these lands as 
critical habitat. We believe that the benefits of inclusion for these 
lands are low as these lands already are publicly owned and managed by 
a wildlife agency to protect and enhance unique and important natural 
resource values. Therefore, designation of critical habitat would add 
little value. The management objects for State ecological reserves 
already include specifically managing for targeted listed and sensitive 
species; therefore, the benefit from additional consultation is likely 
also to be minimal. As discussed above, the State's management 
activities will provide for significant preservation and management of 
habitat for the vernal pool species. Implementation of the management 
activities will help reach the recovery goals for each of the species. 
Additionally, by excluding these lands from critical habitat for the 
listed species, we are enhancing our relationship with the State and 
facilitating future conservation partnerships.
    Furthermore, the State's management activities will contribute to 
the recovery of the vernal pool species under the Act in part by 
maintaining and managing the geomorphic and ecological processes of the 
landscape in large, well-placed blocks of habitat where the species are 
found such that the species are likely to be conserved and therefore 
persist indefinitely. Designation of critical habitat would not achieve 
recovery or require management of these lands. We believe that the 
recovery benefits of excluding these lands and implementing the 
management actions outlined by the State outweigh the recovery benefits 
of including these lands in critical habitat.
    We also believe that the benefits of State management outweigh the 
regulatory benefits of designation of critical habitat under section 7 
of the Act. Should the critical habitat remain in place, consultations 
under section 7 would only commit Federal agencies to prevent adverse 
modification to the critical habitat and not require the conservation, 
long-term benefits, positive improvements, or enhancement of habitat. 
The benefits of exclusion are higher, as Federal actions on these lands

[[Page 30289]]

may result in the need for consultation, most often on activities that 
would enhance wildlife conservation. These consultations would result 
in additional administrative burdens without significant accompanying 
conservation benefits. For plant species, section 7 consultations are 
limited to jeopardy and/or adverse modification analysis; biological 
opinions do not include an incidental take statement, and there are no 
reasonable and prudent measures issued to minimize the effect of any 
predicted incidental take. Any measures taken to minimize effects to 
the plant species or their habitat are completely voluntary. Therefore, 
the State management actions within the ecological reserves and 
wildlife areas that provide for the conservation of these species 
provide more benefit than would a critical habitat designation on these 
lands for these species.
    The benefits of excluding these lands from critical habitat 
outweigh the benefits of designating these lands as critical habitat, 
including the educational benefits of critical habitat through 
informing the public of areas important for the long-term conservation 
of this species, because these educational benefits can still be 
accomplished from materials provided on our Web site (http://www.fws.gov/sacramento). Many educational benefits of critical habitat 
designation have been achieved through the designation process, and 
notice and public comment, and these benefits will continue to occur 
whether or not these lands are designated as critical habitat.
    In summary, we believe that the benefits of inclusion for these 
lands are minimal as these lands already are publicly owned and managed 
to protect and enhance unique and important natural resource values. 
Therefore, any federal activity that is consistent with the State code 
for activity on both State ecological reserves and wildlife areas would 
be very unlikely to have an effect on the primary constituent elements 
such that the habitat could no longer serve the intended conservation 
role for the species.

Exclusion Will Not Result in Extinction of the Species

    We conclude that the benefits of excluding CDFG ecological reserves 
and wildlife areas from the final critical habitat designation outweigh 
the benefits of including them. Such exclusion will not result in the 
extinction of listed vernal pool species because ecological reserves 
are set aside to protect threatened or endangered native plants, 
wildlife, or aquatic organisms or specialized habitat types. The 
Reserves are to be preserved in a natural condition, or are to be 
provided some level of protection as determined by the Fish and Game 
Commission, for the benefit of the general public to observe native 
flora and fauna and for scientific study or research (Fish and Game 
Code, section 1584). Further, we do not believe that such exclusion 
will increase the likelihood that activities would be proposed that 
would appreciably diminish the value of the habitat for the 
conservation of these species.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of these lands from critical habitat leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.
    In accordance with section 4(b)(2) of the Act, we have excluded 
California Department of Fish and Game-owned lands within the Battle 
Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and 
Oroville Wildlife Areas, and State-owned lands within Allensworth, 
Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales 
Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and 
Thomes Creek Ecological Reserves. The exclusion includes portions of 
Conservancy fairy shrimp Units 3 and 7; longhorn fairy shrimp Units 2 
and 3; vernal pool fairy shrimp Units 6, 16, 17, 23, 26a, 26c, 27b, 
29b, and 30; vernal pool tadpole shrimp Units 11, 16, 18a and 18c; 
Colusa grass Unit 2; Contra Costa goldfields Unit 4; Hoover's spurge 
Unit 7a and 7d; Sacramento Orcutt grass Unit 1; San Joaquin Valley 
Orcutt grass Unit 6a; slender Orcutt grass Units 3 and 5a; Solano grass 
Unit 2; and fleshy owl's-clover Unit 4.

Relationship of Critical Habitat to Tribal Lands--Exclusions Under 
Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act requires us to gather information 
regarding the designation of critical habitat and its effects from all 
relevant sources, including Indian Pueblos and Tribes. In accordance 
with the Secretarial Order 3206, ``American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act'' 
(June 5, 1997); the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); and Executive Order 13175, we recognize 
the need to consult with federally recognized Indian Tribes on a 
Government-to-Government basis. The Secretarial Order 3206 ``American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act (1997)'' provides that critical habitat should 
not be designated in an area that may impact Tribal trust resources 
unless it is determined to be essential to conserve a listed species.
Mechoopda Trust Lands
    The Mechoopda trust lands includes 644 ac (261 ha) of lands in Unit 
4. These lands contain suitable habitat for the vernal pool tadpole 
shrimp. The Mechoopda Environmental Protection Agency is responsible 
for the management of the Tribe's natural resources, and recognizes the 
importance of implementing conservation measures that will contribute 
to the conservation of federally listed species on their lands. The 
Mechoopda tribe continues to work with the Service on developing and 
implementing conservation measures to benefit federally listed species 
on their lands.

Additional Benefits of Exclusion

    In accordance with Secretarial Order 3206, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act'' (June 5, 1997); the President's memorandum of April 29, 
1994, ``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951); Executive Order 13175 ``Consultation and 
Coordination with Indian Tribal Governments;'' and the relevant 
provision of the Departmental Manual of the Department of the Interior 
(512 DM 2), we believe that fish, wildlife, and other natural resources 
on tribal lands are better managed under tribal authorities, policies, 
and programs than through Federal regulation wherever possible and 
practicable. Based on this philosophy, we believe that, in many cases, 
designation of Tribal lands as critical habitat provides very little 
additional benefit to threatened and endangered species. Conversely, 
such designation is often viewed by tribes as an unwanted intrusion 
into tribal self governance, thus compromising the government-to-
government relationship essential to achieving our mutual goals of 
managing for healthy ecosystems upon which the viability of threatened 
and endangered species populations depend.
    In our critical habitat designations, we use the provision outlined 
in section 4(b)(2) of the Act to evaluate those specific areas that 
contain the features essential to the conservation of the

[[Page 30290]]

species to determine which areas to propose and subsequently finalize 
(i.e., designate) as critical habitat. On the basis of our evaluation, 
discussed below, we excluded certain lands from the final designation 
of critical habitat for the 15 vernal pool species.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    The benefits of including Mechoopda trust lands in critical habitat 
for vernal pool species is low. The total amount of tribal lands is 
small relative to the remainder of the critical habitat designation and 
relative to those lands that are currently set aside in conservation 
banks. Minor educational benefits may arise from the designation of 
critical habitat on Tribal lands. However, the Mechoopda Environmental 
Protection Agency, which is responsible for the management of the 
Tribe's natural resources, recognizes the importance of implementing 
conservation measures that will contribute to the conservation of 
federally listed species on their lands and have developed a management 
plan for sensitive species and habitats (Mechoopda Indian Tribe 
Environmental Management Plan, March 2003 (EMP)). Any conservation 
measures implemented by the Mechoopda Environmental Protection Agency 
will contribute to the recovery of the vernal pool species under the 
Act. Designation of critical habitat would not achieve recovery or 
require management of these lands.
    The benefits of including the Tribe's land are limited to minor 
educational benefits. The benefits of excluding these lands from 
critical habitat outweigh the benefits of designating these lands as 
critical habitat, including the educational benefits of critical 
habitat through informing the public of areas important for the long-
term conservation of this species, because these educational benefits 
can still be accomplished from materials provided on our Web site 
(http://www.fws.gov/sacramento). Many educational benefits of critical 
habitat designation have been achieved through the designation process 
and notice and public comment, and these benefits will continue to 
occur whether or not these lands are designated as critical habitat.
    Because one or more of the species occupies all these areas, 
consultation on federal actions will occur regardless of whether 
critical habitat is designated. While some additional benefit might 
accrue from adverse modification analyses, we expect them to be small. 
Tribal areas represent a small proportion of vernal pool habitat within 
the designation, and the Tribe has demonstrated the willingness and 
ability to manage these lands in a manner that preserves the lands' 
conservation benefits as outlined in their EMP. The benefits of 
excluding these areas from critical habitat are more significant, and 
include our policy of maintaining a government-to-government 
relationship with tribes, as well as encouraging the continued 
development and implementation of special management measures. The 
Mechoopda Environmental Protection Agency recognizes the importance of 
implementing conservation measures that will contribute to the 
conservation of federally listed species on their lands. The Mechoopda 
Tribe has already demonstrated their willingness to work with us to 
address the habitat needs of listed species that may occur on Mechoopda 
lands. The exclusion of critical habitat for the Mechoopda trust lands 
is consistent with our published policies on Native American natural 
resource management by allowing the Mechoopda Tribe to manage their own 
natural resources.

Exclusion Will Not Result in Extinction of the Species

    Based on the above considerations, and consistent with the 
direction provided in section 4(b)(2) of the Act, we have determined 
that the benefits of excluding 644 ac (261 ha) of Mechoopda Tribal land 
as critical habitat outweigh the benefits of including it as critical 
habitat for the vernal pool tadpole shrimp (Unit 4) and will not result 
in the extinction of the vernal pool tadpole shrimp. Given the 
importance of our government-to-government relationship with Tribes, 
the benefit of maintaining our commitment to the Executive Order by 
excluding these lands outweighs the benefit of including them in 
critical habitat. For a complete discussion of these Tribal lands, 
please refer to our August 6, 2003 (68 FR 46684) and March 8, 2005 (70 
FR 11140), final designations.

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

Carrizo Plain National Monument
    The Carrizo Plain National Monument (Monument) is cooperatively 
managed by the Bureau of Land Management (BLM), the Service, and the 
California Department of Fish and Game and provides habitat for other 
listed species in addition to the vernal pool fairy shrimp and the 
longhorn fairy shrimp. In 2005, we reviewed a draft of the Carrizo 
Plain Resource Management Plan (CPRMP). At that time, the cooperatively 
developed CPRMP was based on a conservation standard of long-term 
conservation and recovery for ``listed plants and animals and the 
natural communities on which they depend.'' Specific measures and goals 
outlined in the 2005 draft CPRMP include: (1) Improve and sustain 
populations of federally and State listed plant and animal species to 
meet conservation and recovery goals; (2) Implement agency-approved 
protocols for listed species surveys, take avoidance, and conservation 
measures; (3) Survey for sensitive resources prior to conducting any 
activities that have the potential to affect natural communities and 
species of management concern; (4) Avoid areas supporting the longhorn 
fairy shrimp and vernal pool fairy shrimp to the greatest extent 
possible; (5) Require personnel familiar with the sensitive resource to 
be present during activities which may affect sensitive resources to 
ensure that activities are conducted in such a way as to avoid and 
minimize disruption and disturbance of these resources; and (6) 
Compensate for unavoidable adverse effects (BLM 2005). However, since 
the publication of our August 2005 final rule (70 FR 46924), the BLM 
stopped the planning process for the CPRMP to gather additional 
information and provide for public input for the CPRMP. The BLM expects 
to restart the CPRMP environmental impact statement planning process in 
the spring of 2007, and complete all environmental documents within 2 
years. We have no reason to believe that the BLM will significantly 
change the direction of management of listed species, including vernal 
pool species based on past management of the area and we fully expect 
the BLM to initiate section 7 consultation on the CPRMP once a draft 
plan has been developed. In the interim, BLM is actively managing 
public lands within the Monument in accordance with existing biological 
opinions and for the recovery of federally listed species (S. Larsen, 
BLM 2005, p. 1) and is currently managing the area in accordance with 
the existing Caliente Resource Management Plan (RMP) which includes 
Carrizo Plain (Saslaw 2007, p. 1). The BLM-managed land overlaps 
portions of vernal pool fairy shrimp Unit 30 (16,033 ac (6,488 ha)) and 
longhorn fairy shrimp Unit 3 (16,033 ac (6,488 ha)) in San Luis Obispo 
County.

Benefits of Inclusion

    The designation of critical habitat would require consultation with 
us for any action undertaken, authorized, or

[[Page 30291]]

funded by a Federal agency that may affect the species or its 
designated critical habitat. However, there would be minimal benefit 
from designating critical habitat for vernal pool fairy shrimp and 
longhorn fairy shrimp within the Carrizo Plain National Monument lands 
because these lands are public trust lands managed for the conservation 
of natural resources. Critical habitat designation would provide little 
gain in the way of increased recognition for special habitat values on 
lands that are expressly managed to protect and enhance those values.
    The primary benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
that directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The designation of critical habitat may provide a different level of 
protection under section 7(a)(2) for vernal pool fairy shrimp and 
longhorn fairy shrimp that is separate from the obligation of a Federal 
agency to ensure that their actions are not likely to jeopardize the 
continued existence of a listed species. Under the Gifford Pinchot 
decision, critical habitat designations may provide greater benefits to 
the recovery of a species than was previously believed. However, the 
protection provided is still a limitation on the adverse effects that 
may occur to designated critical habitat, as opposed to a requirement 
to affirmatively provide a conservation benefit on those lands.
    Another potential benefit of critical habitat would be to signal 
the importance of these lands to Federal agencies, scientific 
organizations, State and local governments, and the public to encourage 
conservation efforts to benefit vernal pool species such as vernal pool 
fairy shrimp and longhorn fairy shrimp and their habitats. However, the 
importance of protecting the biological resource values of these lands, 
including vernal pool fairy shrimp and longhorn fairy shrimp, has 
already been clearly and effectively communicated to Federal, State, 
and local agencies and other interested organizations and members of 
the public through previous and future management planning processes.

Benefits of Exclusion

    Excluding lands managed by the BLM within the Carrizo Plain 
National Monument will preserve the partnerships that we have developed 
with the BLM and CDFG in the cooperative management of the Monument. 
The Service issued a biological opinion in 1996 (Service file 1-1-95-F-
149) that covers routine activities on the monument. BLM has 
demonstrated its proactive commitment to conservation in the 
development of a previous draft of the CPRMP. Excluding 16,033 ac 
(6,488 ha) of BLM lands from critical habitat designation recognizes 
BLM's commitment to conservation and recovery of vernal pool species 
and other species, and provides additional incentive to BLM to maintain 
and strengthen the partnerships in the management of the Monument. 
BLM's commitment to species' conservation in development of a new 
CPRMP, as outlined in the biological opinion, and subsequent letters 
and correspondence (Service file 1-1-95-F-149; S. Larsen, BLM 2005, p. 
1; Saslaw 2007, p. 1), is in line with the agency's requirement to 
utilize its programs for the furtherance of the purposes of the Act 
under section 7(a), and may exceed the conservation value provided by a 
critical habitat designation alone because BLM is able to focus limited 
Federal resources toward proactive conservation of sensitive species.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    The educational benefits of critical habitat, including informing 
the public of areas that are essential for the long-term survival and 
conservation of the species, are still accomplished through the BLM's 
land use planning processes and associated outreach and public 
participation. Based on our evaluation of previous draft management 
plans for this area, we expect the new, revised CPRMP to be consistent 
with previous management strategies and expect that the longhorn fairy 
shrimp and the vernal pool fairy shrimp will be managed on BLM 
administered lands under a conservation standard of long-term 
conservation and recovery for ``listed plants and animals and the 
natural communities on which they depend.'' We would likely lose the 
benefits that accrue from the partnerships that have been developed, 
while realizing no additional conservation benefit, should critical 
habitat be designated for the two listed crustacean species in the area 
covered by the CPRMP. For these reasons, we believe that the benefits 
of exclusion of 16,033 ac (6,488 ha) of land exceed the benefits of 
designating critical habitat on lands administered by BLM within the 
Carrizo Plain National Monument within Unit 3 for longhorn fairy shrimp 
and Unit 30 for vernal pool fairy shrimp.

Exclusion Will Not Result in Extinction of the Species

    We believe that exclusion of these lands, which are considered to 
be occupied habitat, will not result in extinction of vernal pool fairy 
shrimp or longhorn fairy shrimp. Any actions that might adversely 
affect these two crustaceans would have a Federal nexus and must 
undergo a consultation with the Service under the requirements of 
section 7 of the Act. The jeopardy standard of section 7, and routine 
implementation of habitat conservation through the section 7 process as 
discussed in the economic analysis, provide assurance that the species 
will not go extinct. In addition, the two crustacean species are 
protected from take under section 9 of the Act. The exclusion of these 
lands from critical habitat leaves these protections unchanged from 
those that would exist if the excluded areas were designated as 
critical habitat.
    Additionally, critical habitat is designated for both crustacean 
species in other areas that are protected from adverse modification by 
Federal actions using the conservation standard based on the Ninth 
Circuit decision in Gifford Pinchot. Vernal pool fairy shrimp are also 
protected on lands such as conservation banks covered by perpetual 
conservation easements and managed specifically for listed vernal pool 
species and their habitat.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of these lands from critical habitat leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.

Economics

    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for economic reasons if he determines that the 
benefits of such exclusion exceed the benefits of designating the area 
as critical habitat, unless the exclusion will result in the extinction 
of the species concerned. Congress has provided this discretionary 
authority to the Secretary with respect to critical habitat. Although 
economic and other impacts may not be considered when listing a 
species, Congress has expressly required this consideration when 
designating critical habitat.
    In making the following exclusions, we have in general considered 
that all of the costs and other impacts predicted

[[Page 30292]]

in the economic analysis may not be avoided by excluding the areas, 
because all of the areas in question are currently occupied by the 
listed species and there will still be requirements for consultation 
under section 7 of the Act, or for permits under section 10 (henceforth 
``consultation''), for any take of these species, and other protections 
for the species exist elsewhere in the Act and under State and local 
laws and regulations. In conducting economic analyses, we are guided by 
the Tenth Circuit Court of Appeal's ruling in the New Mexico Cattle 
Growers Association case (248 F.3d at 1285), which directed us to 
consider all impacts, ``regardless of whether those impacts are 
attributable co-extensively to other causes.'' As explained in the 
analysis, due to possible overlapping regulatory schemes and other 
reasons, some elements of the analysis may also overstate some costs.
    Conversely, the Ninth Circuit has recently ruled (Gifford Pinchot, 
378 F.3d at 1071) that the Service's regulations defining ``adverse 
modification'' of critical habitat are invalid because they define 
adverse modification as affecting both survival and recovery of a 
species. The Court directed us to consider that determinations of 
adverse modification should be focused on impacts to recovery. While we 
have not yet proposed a new definition for public review and comment, 
compliance with the Court's direction may result in additional costs 
associated with the designation of critical habitat (depending upon the 
outcome of the rulemaking). In light of the uncertainty concerning the 
regulatory definition of adverse modification, our current 
methodological approach to conducting economic analyses of our critical 
habitat designations is to consider all conservation-related costs. 
This approach would include costs related to sections 4, 7, 9, and 10 
of the Act, and should encompass costs that would be considered and 
evaluated in light of the Gifford Pinchot ruling.
    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information available and 
to consider the economic and other relevant impacts of designating a 
particular area as critical habitat. We may exclude areas from critical 
habitat upon a determination that the benefits of such exclusions 
outweigh the benefits of specifying such areas as critical habitat. We 
cannot exclude such areas from critical habitat when such exclusion 
will result in the extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effects of the designation. The draft analysis was 
made available for public review on June 30, 2005 (70 FR 37739). We 
accepted comments on the draft analysis until July 20, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the 15 vernal pool species. This information is intended to 
assist the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    This analysis focuses on the direct and indirect costs of the rule. 
However, economic impacts to land use activities can exist in the 
absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The draft economic analysis published on June 30, 2005 (70 FR 
37739) reanalyzed the economic effects to the 35 counties in which we 
had proposed designating critical habitat. The counties most impacted 
by the critical habitat designation to the new housing industry include 
Sacramento ($374 million), Butte ($145 million), Placer ($120 million), 
Solano ($87 million), Fresno ($43 million), Stanislaus ($33 million), 
Madera ($32 million), Monterey ($29 million), Shasta ($20 million), 
Tehama ($19 million), and Merced ($16 million). Further, economic 
impacts are unevenly distributed within these counties. The analysis 
was conducted at the census tract level, resulting in a high degree of 
spatial precision compared to our previous economic analysis (March 14, 
2003; 68 FR 12336), in which economic effects could not be 
deconstructed below the county level.
    In the base scenario where critical habitat reduces the amount of 
new housing, designation of vernal pool critical habitat results in 
nearly $1.0 billion in losses to consumers and producers between 2005 
and 2025. In the event that on-site avoidance can be accomplished 
through density increases alone, welfare losses from vernal pool 
critical habitat would be $820 million over the same time period.
    Sacramento County is expected to experience the largest economic 
impacts from critical habitat--nearly $375 million in consumer and 
producer surplus losses. As shown in the map of impacts in Sacramento 
County, these impacts are concentrated in census tracts close to 
downtown Sacramento. Economic impacts generally decline in those census 
tracts that are progressively farther from the city center. This 
pattern is generally repeated in other counties.
    A copy of the final economic analysis with supporting documents may 
be obtained by contacting U.S. Fish and Wildlife Service, Sacramento 
Fish and Wildlife Office (see FOR FURTHER INFORMATION CONTACT).

Application of Section 4(b)(2) of the Act--Economic Exclusion to 23 
Census Tracts and Two Public Sector Projects

    We have considered designating, but have excluded from critical 
habitat for 3 of the 4 listed vernal pool crustaceans and 11 listed 
vernal pool plants, the 23 census tracts and counties listed in Table 
1. No critical habitat for longhorn fairy shrimp is contained within 
any of the 23 census tracts. Therefore, land occupied by 14 of the 15 
listed vernal species is affected by exclusion of critical habitat for 
economic reasons.

[[Page 30293]]



                                             Table 1.--Excluded Census Tracts, Associated Species, and Costs
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                            Adjustments
                                                                                                          Welfare impact   after public   Total adjusted
               Census tract                             Species                         County              in draft EA     comment and        cost
                                                                                                                ($)           review
--------------------------------------------------------------------------------------------------------------------------------------------------------
06067008701..............................  Vernal pool tadpole shrimp,       Sacramento.................     304,224,384     -70,565,264     233,659,120
                                            Vernal pool fairy shrimp,
                                            Orcuttia viscida, Orcuttia
                                            tenuis.
06007000900..............................  Vernal pool tadpole shrimp,       Butte......................      88,974,848               0      88,974,848
                                            Vernal pool fairy shrimp,
                                            Limnanthes floccosa ssp.
                                            californica.
06061021301..............................  Vernal pool fairy shrimp........  Placer.....................      74,583,712               0      74,583,712
06061021303..............................  Vernal pool fairy shrimp........  Placer.....................      37,184,144               0      37,184,144
06095252309..............................  Lasthenia conjugens, Vernal pool  Solano.....................      28,771,992               0      28,771,992
                                            tadpole shrimp, Vernal pool
                                            fairy shrimp.
06095253500..............................  Vernal pool tadpole shrimp,       Solano.....................      27,448,252               0      27,448,252
                                            Vernal pool fairy shrimp,
                                            Conservancy fairy shrimp,
                                            Tuctoria mucronata, Lasthenia
                                            conjugens, Neostapfia colusana.
06053014103..............................  Lasthenia conjugens.............  Monterey...................      26,854,790               0      26,854,790
06067009315..............................  Orcuttia viscida, Orcuttia        Sacramento.................      24,236,570               0      24,236,570
                                            tenuis, Vernal pool tadpole
                                            shrimp, Vernal pool fairy
                                            shrimp.
06019005515..............................  Vernal pool fairy shrimp,         Fresno.....................      22,912,350               0      22,912,350
                                            Orcuttia inaequalis, Castilleja
                                            campestris ssp. succulenta.
06067009200..............................  Vernal pool tadpole shrimp,       Sacramento.................      21,195,492               0      21,195,492
                                            Vernal pool fairy shrimp,
                                            Orcuttia viscida, Orcuttia
                                            tenuis.
06099000102..............................  Vernal pool fairy shrimp,         Stanislaus.................      16,931,104               0      16,931,104
                                            Castilleja campestris ssp.
                                            succulenta, Chamaesyce hooveri,
                                            Tuctoria greenei, Neostapfia
                                            colusana.
06007000101..............................  Vernal pool fairy shrimp........  Butte......................      16,364,906               0      16,364,906
06067008600..............................  Vernal pool tadpole shrimp,       Sacramento.................      16,254,806               0      16,254,806
                                            Vernal pool fairy shrimp,
                                            Orcuttia tenuis.
06019005511..............................  Orcuttia inaequalis, Castilleja   Fresno.....................      13,001,144               0      13,001,144
                                            campestris ssp. succulenta,
                                            Vernal pool fairy shrimp.
06039000105..............................  Vernal pool tadpole shrimp,       Madera.....................      12,117,652               0      12,117,652
                                            Vernal pool fairy shrimp,
                                            Tuctoria greenei, Orcuttia
                                            pilosa, Castilleja campestris
                                            ssp. succulenta, Orcuttia
                                            inaequalis.
06007001400..............................  Conservancy fairy shrimp, Vernal  Butte......................      11,405,310      +2,436,015      13,841,325
                                            pool tadpole shrimp, Vernal
                                            pool fairy shrimp, Limnanthes
                                            floccosa ssp. californica,
                                            Tuctoria greenei, Orcuttia
                                            pilosa, Chamaesyce hooveri,
                                            Orcuttia tenuis.
06089010802..............................  Orcuttia tenuis.................  Shasta.....................      10,167,456               0      10,167,456
06099000101..............................  Vernal pool fairy shrimp,         Stanislaus.................       9,925,463               0       9,925,463
                                            Neostapfia colusana.
06007002200..............................  Vernal pool tadpole shrimp,       Butte......................       8,825,428               0       8,825,428
                                            Limnanthes floccosa ssp.
                                            californica, Tuctoria greenei,
                                            Orcuttia pilosa, Chamaesyce
                                            hooveri.
06095252502..............................  Lasthenia conjugens.............  Solano.....................       7,993,725               0       7,993,725
06047001901..............................  Vernal pool fairy shrimp,         Merced.....................       5,759,870     +10,000,000      15,759,870
                                            Conservancy fairy shrimp,
                                            Vernal pool tadpole shrimp,
                                            Orcuttia inaequalis, Neostapfia
                                            colusana, Castilleja campestris
                                            ssp. succulenta.
06103000900..............................  Vernal pool fairy shrimp,         Tehama.....................       5,359,834      +6,093,965      11,453,799
                                            Conservancy fairy shrimp,
                                            Vernal pool tadpole shrimp,
                                            Tuctoria greenei, Orcuttia
                                            pilosa, Orcuttia tenuis,
                                            Chamaesyce hooveri.
06061020902..............................  Vernal pool fairy shrimp........  Placer.....................       2,462,844             ***      74,583,712
                                                                                                         -----------------------------------------------
    Total................................  ................................  ...........................     779,373,528  ..............    740,920,792
--------------------------------------------------------------------------------------------------------------------------------------------------------
*** Placer Vineyards straddles two census tracts; impacts for tracts 06061020902 and 06061021301 were aggregated in the final analysis. See the Summary
  of Comments and Recommendations section in the August 11, 2005 final rule (70 FR 46924).

    The notice of availability of the revised draft economic analysis 
(June 30, 2005, 70 FR 37739) solicited public comment on the potential 
exclusion of the 20 highest cost areas. As we finalized the economic 
analysis, we identified high costs associated with the critical habitat 
designation to public projects in Merced and Tehama County. These 
public projects were the development of the University of California 
(UC) Merced campus and the

[[Page 30294]]

widening of Highway 99 in Tehama County. The final economic analysis 
indicates additional costs in census tracts in which these projects 
were located were $10,000,000 for UC Merced and $6,093,965 for Highway 
99. On the basis of the significance of these costs, we determined 
these two census tracts should be excluded from critical habitat. In 
addition, information received during the comment period indicated that 
the Placer Vineyards Specific Plan was located in two census tracts in 
Placer County, one of which was identified in the draft economic 
analysis as being in one of the 20 highest cost areas, and one of which 
was not. As a result, impacts for the two affected census tracts were 
aggregated in the final analysis, which significantly increased the 
costs in the second census tract (See the Summary of Comments and 
Recommendations section in the August 11, 2005 (70 FR 46924) final 
rule). For this reason, it too, was excluded from the final critical 
habitat designation.

Benefits of Inclusion of the 23 Excluded Census Tracts and 2 Public 
Sector Projects

    The areas excluded are currently occupied by one or more of the 3 
listed vernal pool crustaceans or the 11 listed vernal pool plants, as 
shown in Table 1. If these areas were designated as critical habitat, 
any actions with a Federal nexus which may adversely affect the 
critical habitat would require a consultation with us. All but three of 
the census tracts described in Table 1 are currently occupied by one or 
more of the crustacean species, and, therefore, consultation for 
activities which may adversely affect the species, including possibly 
significant habitat modification (see definition of ``harm'' at 50 CFR 
17.3), would be required, even without the critical habitat 
designation. The requirement to conduct such consultation would occur 
regardless of whether the authorization for incidental take occurs 
under either section 7 or section 10 of the Act. For the three units 
occupied only by one or more of the plant species, there is a 
requirement for a jeopardy analysis to ensure Federal actions are not 
likely to jeopardize the continued existence of the species. In 
addition to the consultation requirements outlined above, if these 
areas were included in the critical habitat designation, the primary 
constituent elements in these areas would be protected from destruction 
or adverse modification by federal actions using a conservation 
standard based on the Ninth Circuit's decision in Gifford Pinchot. This 
requirement would be in addition to the requirement that proposed 
Federal actions avoid likely jeopardy to the species' continued 
existence. The additional conservation standard would assure that lands 
designated as critical habitat would provide for species recovery. In 
other words, there may be discretionary Federal actions that would not 
trigger the jeopardy standard, but would adversely modify critical 
habitat. As a result there may be additional avoidance of impacts to 
areas with critical habitat through the conservation standard of 
adverse modification, instead of just the jeopardy standard through 
section 7.
    We determined in the economic analysis that designation of critical 
habitat could result in approximately $800,000,000 in costs in these 23 
census tracts, the majority of which are directly related to 
residential development impacts. We believe that the potential decrease 
in residential housing development that could be caused by the 
designation of critical habitat for the 15 vernal pool species would 
minimize impacts to and potentially provide some protection to the 
species, the vernal pool complexes where they reside, and the physical 
and biological features essential to their conservation (i.e., their 
primary constituent elements). Thus, this decrease in residential 
housing development would directly translate into a conservation 
benefit to the species if these areas were included in the critical 
habitat designation.
    Another possible benefit of a critical habitat designation is 
education of landowners and the public regarding the potential 
conservation value of these areas. This may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this education benefit has largely been achieved, or is being achieved 
in equal measure, by other means. There have been three previous 
iterations of the critical habitat process for these lands, which has 
included both public comment periods and litigation, all with 
accompanying publicity. In addition, we published the Draft Recovery 
Plan for Vernal Pool Ecosystems of California and Southern Oregon in 
October 2004, and the final recovery plan on June 14, 2006. The draft 
recovery plan identified areas that are important for the conservation 
of each of the 15 listed vernal pool species. Upon publication of the 
draft recovery plan, we held numerous workshops throughout the State to 
educate the public about recovery strategies for the species covered by 
the plan, including all 15 of the listed vernal pool species that are 
the subject of this document. In addition to identifying specific areas 
that are important for the conservation of the 15 listed vernal pool 
species, the final recovery plan details the actions necessary to 
achieve self-sustaining populations of each listed species in the wild 
so that they will no longer require protection under the Act. The 
designation of critical habitat and the identification of vernal pool 
recovery core areas were based on similar methodologies and criteria of 
using vernal pool regions as classified by Keeler-Wolf et al. (1998, 
pp. 1-159) as a base for determining the extent of the respective 
recovery or critical habitat areas. The vernal pool regions encompass 
the range and variation of vernal pool habitats which are the focus of 
the recovery plan for habitat protection and conservation efforts. As a 
result of using similar methodologies and criteria the critical habitat 
boundaries make up a large part of the ``Zone 1'' core areas identified 
in the final recovery plan and are an intricate part of recovery for 
the 15 vernal pool species. The final recovery plan provides 
information geared to the general public, landowners, and agencies 
about areas that are important for the conservation of each listed 
vernal pool species and what actions they can implement to further the 
conservation of vernal pool species within their own jurisdiction and 
capabilities. The final recovery plan also contains provisions for 
ongoing public outreach and education as part of the recovery process.
    As implied above, another possible benefit of a critical habitat 
designation is its contribution to the recovery of threatened and 
endangered species. 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. In identifying those lands, the Service 
must consider the recovery needs of the species and its habitat, which, 
if managed, could provide for the survival and recovery of the species. 
Furthermore, once critical habitat has been designated, Federal 
agencies must consult with the Service under section 7 of the Act to 
ensure that their actions will not either adversely modify

[[Page 30295]]

designated critical habitat or jeopardize the continued existence of 
the species. As noted previously, in the Ninth Circuit's Gifford 
Pinchot decision, the Court ruled that the jeopardy and adverse 
modification standards are distinct, and that adverse modification 
evaluations require consideration of impacts to the recovery of 
species. Thus, through the section 7(a)(2) consultation process, 
critical habitat designations provide recovery benefits to species by 
ensuring that Federal actions will not destroy or adversely modify 
designated critical habitat. Critical habitat also assists in focusing 
recovery efforts outlined in recovery plans by identifying, developing 
and potentially protecting core areas which will assist in conserving 
the species.
    In summary, we believe that inclusion of the 23 census tracts and 2 
public sector projects as critical habitat would provide some 
additional Federal regulatory benefits for the species. However, that 
benefit is limited to some degree by the fact that the habitat is 
occupied by the species, and therefore Federal agencies must in any 
case consult with the Service over any action which may affect one or 
more of the 14 listed vernal pool species within those 23 census 
tracts. The additional educational benefits which might arise from 
critical habitat designation are largely accomplished through the 
multiple opportunities for public notice and comments that accompanied 
the development of the 15 vernal pool species critical habitat 
regulations, publicity over the prior litigation, and public outreach 
associated with the development of the draft recovery plan, and 
ultimately the implementation of the final recovery plan, for vernal 
pool species.

Benefits of Exclusion of the 23 Excluded Census Tracts and 2 Public 
Sector Projects

    The economic analysis conducted estimates that the costs associated 
with designating these 23 census tracts would be approximately 
$740,920,792. These costs would be associated with each of the 14 
listed vernal pool species in amounts shown in Table 1. By excluding 
these census tracts, some or all of these costs will be avoided. The 
exclusion of two important public-sector projects, UC Merced in Merced 
County and the widening of Highway 99 in Tehama County, will avoid 
additional costs associated with critical habitat designation.

Benefits of Exclusion Outweigh the Benefits of Inclusion of the 23 
Census Tracts and 2 Public Sector Projects

    We believe that the benefits of excluding these lands from the 
designation of critical habitat-avoiding the potential economic and 
human costs, both in dollars and jobs, predicted in the economic 
analysis-exceed the educational, regulatory, and recovery benefits 
which could result from including those lands in the designation of 
critical habitat.
    We have evaluated and considered the potential economic costs on 
the residential development industry and two public sector projects 
relative to the potential benefit for the 14 vernal pool species and 
their primary constituent elements that could result from the 
designation of critical habitat. We believe that the potential economic 
impact of up to approximately $800 million on the development industry, 
$10 million on the University of California, and over $6 million on the 
Federal and State transportation projects in Tehama County 
significantly outweighs the potential conservation and protective 
benefits for the species and their primary constituent elements derived 
from residential development, highways and transportation networks, and 
higher educational facilities not being constructed as a result of this 
designation.
    We also believe that excluding these lands, and thus helping 
landowners avoid any additional costs that would result from compliance 
with the designation, will contribute to a more positive climate for 
Habitat Conservation Plans and other active conservation measures, 
which provide greater conservation benefits than would result from 
designation of critical habitat--even in the post-Gifford Pinchot 
environment--because designation requires only that there be no adverse 
modification resulting from actions with a Federal nexus. We therefore 
find that the benefits of excluding these areas from the designation of 
critical habitat outweigh the benefits of including them in the 
designation.
    The recently completed (December, 15, 2005) recovery planning 
process provided equivalent educational value to the public, State and 
local governments, scientific organizations, and Federal agencies in 
providing information about habitat that is essential to the 
conservation of the 3 vernal pool crustacean species and 11 vernal pool 
plants. The process also facilitated conservation efforts through 
heightened public awareness of the plight of the listed species. The 
final recovery plan contains explicit objectives for ongoing public 
education, outreach, and collaboration at local, State, and Federal 
levels, and between the private and public sectors, in recovering the 
four listed crustaceans. Furthermore, as previously described, we 
believe the educational benefits of designation were largely achieved 
through the multiple public notification processes associated with the 
previous and current iterations of the vernal pool species critical 
habitat rule.
    The identification of those lands that may need management and have 
features that are essential for the conservation of the species and 
that can provide for the recovery of a species is expected to 
contribute to the process of recovering the species. The process of 
proposing and finalizing a critical habitat rule provides the Service 
with the opportunity to determine lands essential for conservation as 
well as identify the primary constituent elements or features essential 
for conservation on those lands. The designation process includes peer 
review and public comment on the identified features and lands. This 
process is valuable to landowners and managers in developing 
conservation management plans for identified lands, as well as any 
other occupied habitat or suitable habitat that may not have been 
included in the Service's determination of essential habitat. This 
process is also valuable to Federal action agencies as they go though 
processes to fund, authorize, or carry out actions on any lands 
identified within a critical habitat rule, even if those lands end up 
being excluded from the final rule, particularly in areas containing 
occupied habitat where Federal agencies will initiate consultation 
under section 7 of the Act.
    For example, the UC Merced campus is covered by a programmatic 
biological opinion issued by the Service in 2002 (1-1-02-F-0107). The 
biological opinion requires the development and implementation of a 
conservation strategy that incorporates conservation measures for 
listed species including vernal pool plants and crustaceans. The 
conservation strategy is still under development and will be included 
in the Environmental Impact Statement (EIS) currently under preparation 
by the U.S. Army Corps of Engineers. The conservation strategy includes 
monitoring and adaptive management measures on some of the preserved 
lands that is consistent with the implementation of the recently 
published Recovery Plan for Vernal Pool Ecosystems of California and 
Southern

[[Page 30296]]

Oregon. In addition, approximately 25,964 ac (10,507 ha) of vernal pool 
habitat has been conserved through conservation easements or fee title 
that contribute to recovery of the species. Therefore, we believe that 
the exclusion of the UC Merced campus will facilitate long-term 
conservation and recovery of listed vernal pool species.
    The economic costs associated with the designation of critical 
habitat for the 15 vernal pool species on a public transportation 
project in Tehama County totals over $6 million. The project includes 
widening approximately 5 mi (8 km) of State Route 99 which is a major 
transportation corridor for the State. The projected project start date 
for the project is in 2012, and is currently in the planning and 
development stage. The surplus cost identified for this census tract 
totals nearly $5.4 million. The cost including public projects for 
Tehama County in census tract 0610300900 totals over $11.4 million 
which places this census tract within the top 23 highest cost tracts. 
Tehama County as a whole has been identified as being in the top ten 
counties with the highest county-level welfare impacts and has the 
second highest percentage (1.9 percent) of economic impacts of all 
counties when looking at the relationship between the amount of surplus 
lost and the aggregate household income (CRA International 2005, p. 
74). When evaluating the costs for Tehama County as a whole 
(transportation costs (over $6 million), census tract costs (over $5.4 
million), and surplus loss ($18.8 million) compared to aggregate income 
(over $1 billion)), we have determined that exclusion of critical 
habitat for the Conservancy fairy shrimp, vernal pool fairy shrimp, 
vernal pool tadpole shrimp, hairy Orcutt grass, Hoover's spurge, 
Greene's tuctoria, and slender Orcutt grass based on these factors is 
appropriate.
    We believe that exclusion of these units within the 23 census 
tracts and 2 public sector projects will not hinder recovery of the 15 
vernal pool species. Other vernal pool complexes, including areas 
identified as critical habitat, in the general area of those excluded 
are occupied by one or more of the listed vernal pool species, contain 
functioning PCEs, and would therefore contribute to recovery. 
Sufficient habitat would be conserved in other areas designated as 
critical habitat and in other areas, such as perpetual conservation 
easements, to contribute to the recovery of the 15 listed vernal pool 
species.

Exclusion Will Not Result in Extinction of the Species

Conservancy Fairy Shrimp, Vernal Pool Fairy Shrimp, Vernal Pool Tadpole 
Shrimp
    We believe that exclusion of these lands, which we consider to be 
occupied habitat, will not result in the extinction of Conservancy 
fairy shrimp, vernal pool fairy shrimp, or vernal pool tadpole shrimp. 
Actions which might adversely affect these three crustaceans are 
expected to have a Federal nexus, and would thus undergo a section 7 
consultation with the Service. The jeopardy standard of section 7 of 
the Act, and routine implementation of habitat preservation through the 
section 7 process, as discussed in the economic analysis, provide 
assurance that the species will not go extinct. In addition, the three 
crustaceans are protected from take under section 9 of the Act. The 
exclusion leaves these protections unchanged from those that would 
exist if the excluded areas were designated as critical habitat.
    Critical habitat is designated for all three crustacean species in 
other areas that are accorded the protection from adverse modification 
by Federal actions using the conservation standard based on the Ninth 
Circuit decision in Gifford Pinchot. Additionally, all species occur on 
lands protected and managed either explicitly for the species, or 
indirectly through more general objectives to protect natural values; 
this provides protection from extinction and contributes to the 
recovery of the listed vernal pool crustaceans. For example, 
Conservancy fairy shrimp is protected on lands, such as conservation 
banks and other natural areas protected by perpetual conservation 
easements and managed specifically for the species (e.g., Viera-Sandy 
Mush, Vina Plains). The species also occurs on lands managed to protect 
and enhance wetland values under the Wetlands Reserve Program of the 
Natural Resources Conservation Service of the U.S. Department of 
Agriculture. Vernal pool fairy shrimp are protected on lands, such as 
conservation banks, protected by perpetual conservation easements and 
managed specifically for the species and its habitat (e.g., Arroyo 
Seco, Bryte Ranch, Clay Station, Laguna Creek, Sunrise Douglas, Aqua 
Fria, Viera Sandy Mush, Kennedy Table, Dolan Ranch, Dove Ridge, 
Wildlands--Sheridan, Stillwater Plains, Campbell Ranch, and Fitzgerald 
Ranch; Sacramento NWR Complex, San Francisco NWR, and San Luis NWR 
Complex; and Vina Plains Ecological Reserve, Jepson Plains, Grasslands 
Ecological Area, Stone Corral Ecological Preserve, and Howard Ranch; 
and the lands preserved and protected through the UC Merced project). 
Vernal pool tadpole shrimp occur on lands with perpetual conservation 
easements managed explicitly for the species on conservation banks 
(e.g., Stillwater Plains, Campbell Ranch, Arroyo Seco, Bryte Ranch, 
Clay Station, Laguna Creek, Sunrise Douglas, Viera Sanda Mush, Kennedy 
Table, Dolan Ranch, Dove Ridge, Wildlands--Sheridan, and Fitzgerald 
Ranch; Sacramento NWR Complex, San Francisco NWR, and San Luis NWR 
Complex; and Nature Conservancy easements, Vina Plains Ecological 
Reserve, Jepson Plains, Grasslands Ecological Area, Dale's Lake 
Ecological Reserve, Stone Corral Ecological Preserve, and Big Table 
Mountain Ecological Preserve). Therefore these lands with perpetual 
conservation easements will contribute to the conservation and recovery 
of Conservancy fairy shrimp, vernal pool fairy shrimp, and vernal pool 
tadpole shrimp.
Eleven Listed Vernal Pool Plant Species
    We believe that exclusion of the 23 census tracts and 2 public 
sector projects, which we consider to be occupied habitat, will not 
result in extinction of any of the 11 listed vernal pool plants. 
Federal actions that might adversely affect these 11 listed plants 
would thus undergo a consultation with the Service under the 
requirements of section 7 of the Act. The jeopardy standard of section 
7 of the Act, and routine implementation of habitat preservation as 
part of the section 7 process, as discussed in the draft economic 
analysis, provide insurance that the species will not go extinct. The 
exclusion leaves these protections unchanged from those that would 
exist if the excluded areas were designated as critical habitat.
    Critical habitat is designated for all 11 species in other areas 
that are accorded the protection from adverse modification by federal 
actions using the conservation standard based on the Ninth Circuit 
decision in Gifford Pinchot. Additionally, all species occur on lands 
protected and managed either explicitly for the species, or indirectly 
through more general objectives to protect natural values. This 
protection and management will contribute to the recovery of the 11 
listed vernal pool plant species. These factors acting in concert with 
the other protections provided under the Act for these lands, absent 
designation of critical habitat on them, and acting in concert with 
protections afforded each species by the

[[Page 30297]]

designated critical habitat for each species, lead us to find that 
exclusion of these 23 census tracts and 2 public sector projects will 
not result in extinction of any of these 11 listed vernal pool plants. 
Limnanthes floccosa ssp. californica occurs on land protected by 
conservation easements on several small reserves in Butte County and at 
the Dove Ridge Conservation Bank. Lasthenia conjugens exists on 
protected lands on San Francisco Bay National Wildlife Refuge, Fort 
Ord, Travis Air Force Base, and the State Route 4 Preserve. Chamaesyce 
hooveri occurs on the Sacramento NWR Complex, the Vina Plains 
Ecological Preserve, Stone Corral Ecological Reserve, and the Bert King 
Ranch. Castilleja campestris spp. succulenta occurs on protected lands 
within the Big Table Mountain Ecological Reserve and the Big Table 
Mountain Preserve, the Kennedy Table Conservation Bank, and the Flying 
M Ranch (Merced Co.). Neostapfia colusana occurs on protected lands 
within the Jepson Prairie Preserve and the Flying M Ranch. Tuctoria 
greenei occurs on protected lands within the Vina Plains Preserve and 
on the Sacramento NWR Complex. Orcuttia pilosa occurs on protected 
lands within the Vina Plains Preserve and on the Sacramento NWR 
Complex. Orcuttia viscida occurs on protected lands within the Phoenix 
Field Ecological Reserve, the Arroyo Seco Conservation Bank, and the 
Sunrise Douglas preserve. Orcuttia inaequalis occurs on protected lands 
on the Flying M Ranch and on an ecological reserve managed by the 
California Department of Fish and Game. Orcuttia tenuis occurs on 
protected lands at the Boggs Lake Preserve, the Vina Plains Preserve, 
the Dale's Lake Ecological Reserve, the Stillwater Plains Conservation 
Banks, the Arroyo Seco Conservation Bank, and the Sunrise Douglas 
preserve. Tuctoria mucronata occurs on protected land on the Jepson 
Prairie Preserve.

References Cited

    A complete list of all reference cited herein is available upon 
request from the Sacramento Fish and Wildlife Office (see FOR FURTHER 
INFORMATION CONTACT).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: May 23, 2007.
Todd Willens,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-10448 Filed 5-30-07; 8:45 am]
BILLING CODE 4310-55-P