[Federal Register Volume 72, Number 117 (Tuesday, June 19, 2007)]
[Proposed Rules]
[Pages 33808-33842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-2823]



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Part II





Department of the Interior





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Fish and Wildlife Service



50 CFR Part 17



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Endangered and Threatened Wildlife and Plants; Revised Critical Habitat 
for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus); 
Proposed Rule

  Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / 
Proposed Rules  

[[Page 33808]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV07


Endangered and Threatened Wildlife and Plants; Revised Critical 
Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
revise currently designated critical habitat for the San Bernardino 
kangaroo rat (Dipodomys merriami parvus) under the Endangered Species 
Act of 1973, as amended (Act). Currently, approximately 33,295 acres 
(ac) (13,485 hectares (ha)) are designated as critical habitat for the 
San Bernardino kangaroo rat in San Bernardino and Riverside counties, 
California. Under this proposal, approximately 9,079 ac (3,674 ha) of 
land located in San Bernardino and Riverside counties, California would 
fall within the boundaries of the revised critical habitat designation. 
Further, of the 9,079 ac of revised critical habitat, we are proposing 
to exclude 2,544 ac (1,029 ha) of land covered by the Woolly-Star 
Preserve Area Management Plans, the Former Norton Air Force Base 
Conservation Management Plan, the Cajon Creek Habitat Conservation 
Management Area Habitat Enhancement and Management Plan, and the 
Western Riverside County Multiple Species Habitat Conservation Plan 
from the final designation under section 4(b)(2) of the Act.

DATES: We will accept comments from all interested parties until August 
20, 2007. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by August 3, 2007.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may mail or hand-deliver your written comments and 
information to Jim Bartel, Field Supervisor, U.S. Fish and Wildlife 
Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92011.
    2. You may send comments by electronic mail (e-mail) to 
[email protected]. Please include ``Attn: San Bernardino kangaroo 
rat'' in your e-mail subject header. If you do not receive a 
confirmation from the system that we have received your message, 
contact us directly by calling our Carlsbad Fish and Wildlife Office at 
760-431-9440.
    3. You may fax your comments to Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office at 760-431-5901.
    4. You may go to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011 (telephone 760-431-9440).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011; 
telephone 760-431-9440; facsimile 760-431-5901. Persons who use a 
telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal to 
revise critical habitat for the San Bernardino kangaroo rat will be as 
accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons why habitat should or should not be designated as 
critical habitat under section 4 of the Act (16 U.S.C. 1531 et seq.), 
including whether there are areas we previously designated, but are not 
proposing for designation here, that should be designated as critical 
habitat;
    (2) Specific information on the amount and distribution of San 
Bernardino kangaroo rat habitat; what areas occupied at the time of 
listing and that contain features essential for the conservation of the 
subspecies should be included in the designation and why; and what 
areas that were not occupied at the time of listing are essential to 
the conservation of the subspecies and why;
    (3) Specific information on dispersal areas important for habitat 
connectivity, their role in the conservation and recovery of the 
subspecies, and reasons why such areas should or should not be included 
in the critical habitat designation;
    (4) Our proposed exclusions totaling 2,544 ac (1,029 ha) of San 
Bernardino kangaroo rat habitat and whether the benefits of excluding 
these areas would outweigh the benefits of their inclusion under 
section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the 
Act section for a detailed discussion). If the Secretary determines 
that the benefits of including these lands would outweigh the benefits 
of excluding them, they will not be excluded from final critical 
habitat;
    (5) Any proposed critical habitat areas covered by existing or 
proposed conservation or management plans that we should consider for 
exclusion from the final designation under section 4(b)(2) of the Act. 
We specifically request information on any operative or draft habitat 
conservation plans for the San Bernadino kangaroo rat that have been 
prepared under section 10(a)(1)(B) of the Act, as well as any other 
management or conservation plan or agreement that benefits the kangaroo 
rat or its primary constituent elements;
    (6) Specific information regarding the current status of plan 
implementation for the following management plans: the Woolly-Star 
Preserve Area Management Plans; the Former Norton Air Force Base CMP; 
the Cajon Creek Habitat Conservation Management Area HEMP; and Western 
Riverside MSHCP;
    (7) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed revised critical 
habitat;
    (8) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed revised designation and, in 
particular, any impacts on small entities, and the benefits of 
including or excluding areas that exhibit these impacts; and
    (9) Whether our approach to designating critical habitat could be 
improved or modified in any way as to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    You may submit your comments and materials concerning this proposal 
by any one of several methods (see ADDRESSES section). Please note that 
comments must be received by the date specified in the DATES section in 
order to be considered and that the e-mail address 
[email protected] will be closed out at the termination of the 
public comment period.
    Before including your address, phone number, e-mail address, or 
other personal identifying information in your comment, you should be 
aware that your entire comment--including your personal identifying 
information--may

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be made publicly available at any time. While you may ask us to 
withhold your personal identifying information from public review, we 
cannot guarantee that we will be able to do so.

Background

    It is our intent to discuss only those topics directly relevant to 
the revision of designated critical habitat for the San Bernardino 
kangaroo rat in this proposed rule. For more information on the biology 
and ecology of the San Bernardino kangaroo rat, refer to the final 
listing rule published in the Federal Register on September 24, 1998 
(63 FR 51005), and the proposed and final critical habitat rules 
published in the Federal Register on December 8, 2000, and April 23, 
2002, respectively (65 FR 77178 and 67 FR 19812).

Species Description

    The San Bernardino kangaroo rat is one of the most highly 
differentiated of 19 recognized subspecies of Merriam's kangaroo rat 
(Dipodomys merriami). The subspecies occurs primarily on alluvial fans 
with appropriate physical and vegetative characteristics in San 
Bernardino and Riverside counties, California (Hall 1981, p. 586; 
Lidicker 1960, p. 190; Williams et al. 1993, p. 62).

Species Distribution

    The historical range of the San Bernardino kangaroo rat extends 
from the San Bernardino Valley in San Bernardino County to the Menifee 
Valley in Riverside County (Hall and Kelson 1959, p. 532; Lidicker 
1960, p. 190). From the early 1880s to the early 1930s, the subspecies 
was a common resident of the San Bernardino and San Jacinto Valleys of 
southern California (Lidicker 1960, p. 190). Prior to 1960, the San 
Bernardino kangaroo rat was known from more than 25 localities within 
this range (McKernan 1997, p. 3; McKernan 1993, p. 36). Based on the 
distribution of apparent suitable soils and museum collections, the 
Service estimated at the time of emergency listing in 1998 that the 
historical range of the subspecies encompassed approximately 326,467 ac 
(130,587 ha) (63 FR 51005, September 24, 1998). Recent studies indicate 
that the San Bernardino kangaroo rat occupies a wider range of soil and 
vegetation types than was previously thought (Braden and McKernan 2000, 
p. 17), which suggests that the subspecies' historical range may have 
been larger than previously estimated at the time of listing. However, 
only portions of the historical range would have been occupied at any 
given time due to the dynamic nature of alluvial habitat and resultant 
variation in habitat suitability.
    At the time of emergency listing in 1998, the extant range of the 
San Bernardino kangaroo rat was thought to encompass approximately 
3,247 ac (1,299 ha) of suitable habitat divided unequally among seven 
geographically distinct locations (63 FR 3835, January 27, 1998; 
McKernan 1997, p. 11). The extent of occupied habitat within San 
Bernardino County included 1,725 ac (690 ha) within the Santa Ana 
River, 20 ac (8 ha) in City Creek, 1,140 ac (456 ha) in Lytle and Cajon 
creeks, 5 ac (2 ha) within Etiwanda Creek, 5 ac (2 ha) in Reche Canyon, 
and 2 ac (0.8 ha) in South Bloomington. San Bernardino kangaroo rat 
distribution within Riverside County was limited to 350 acres (140 ha) 
within the San Jacinto River (McKernan 1997 as cited in 63 FR 3836). 
This determination was based upon the then-current understanding of 
what constituted suitable habitat for the subspecies and an evaluation 
of landscape-scale changes (e.g., dams, flood-control channels, water 
diversions, roadway construction) that had altered the fluvial 
processes and/or habitat for this subspecies. Subsequently, we 
evaluated new information and the results of live-trapping that 
documented the occurrence of the San Bernardino kangaroo rat within 
mature alluvial fan sage scrub habitat (sensu Smith 1980 and Hanes et 
al. 1989). As a result, in the final rule to list the subspecies, we 
estimated the extant range of the San Bernardino kangaroo rat to 
encompass approximately 9,797 ac (3,919 ha) of suitable habitat within 
the Santa Ana River, Lytle and Cajon creeks, and the San Jacinto River 
(63 FR 51005, September 24, 1998).
    When the final rule designating critical habitat for the San 
Bernardino kangaroo rat was published in 2002 (67 FR 19812, April 23, 
2002), the rule reported that the designated critical habitat area is 
33,295 ac (13,485 ha). However, the total area for each of the four 
critical habitat units given in that rule add up to 33,290 ac (13,480 
ha) and we recognize this total as the existing critical habitat area 
in this revised rule. At the time of publication of the final critical 
habitat rule, research indicated that San Bernardino kangaroo rats can 
occupy mature alluvial sage scrub, coastal sage scrub, and even 
chaparral vegetation types (Braden and McKernan 2000, p. 16). Thus, 
within the 33,290 ac (13,480 ha) designated as critical habitat in 
2002, approximately 32,480 ac (13,155 ha) were believed to be occupied 
by the subspecies (67 FR 19812). In the final designation, we stated 
that systematic and general biological surveys resulted in the 
documentation of additional occurrences within and outside of areas 
previously known to be occupied by the subspecies and that based on 
this information, the San Bernardino kangaroo rat occupied a larger 
area than was known at the time of listing. However, since these 
additional occurrences are within the general areas described as 
occupied in the listing rule (Santa Ana River wash, Lytle and Cajon 
washes, and the San Jacinto River wash and adjacent upland areas), we 
consider the areas supporting these occurrences to have been occupied 
at the time of listing.
    New occurrences of San Bernardino kangaroo rat have also been found 
since the final critical habitat designation in 2002. These occurrences 
are also within the general areas of the Santa Ana River wash, Lytle 
and Cajon washes, and San Jacinto River wash that were known to be 
occupied at the time of listing and known to be occupied at the time of 
the final critical habitat rule. Therefore, we consider the areas 
supporting these new occurrences to have been occupied at the time of 
listing.

Previous Federal Actions

    On March 30, 2005, the Pacific Legal Foundation filed suit against 
the Service challenging our failure to provide adequate delineation, 
justification, or sufficient analysis of economic and other impacts in 
the designation of critical habitat for the San Bernardino kangaroo rat 
and 26 other species. On March 23, 2006, a settlement agreement was 
reached requiring the Service to propose to revise critical habitat for 
the San Bernardino kangaroo rat as appropriate. The settlement 
stipulated that on or before June 1, 2007, the Service shall submit for 
publication in the Federal Register a proposed rule regarding any 
revisions to the designation of critical habitat, and that a final rule 
shall be submitted for publication in the Federal Register on or before 
June 1, 2008. For more information on previous Federal actions 
concerning the San Bernardino kangaroo rat, refer to the final listing 
rule published in the Federal Register on September 24, 1998 (63 FR 
51005), and the final designation of critical habitat published in the 
Federal Register on April 23, 2002 (67 FR 19812).

Critical Habitat

    Critical habitat is defined in section 3 of the Act as (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in

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accordance with the Act, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) that may require special management considerations or 
protection; and (ii) specific areas outside the geographical area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
Conservation, as defined under section 3 of the Act, means to use and 
the use of all methods and procedures that are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided under the Act are no longer necessary. Such methods 
and procedures include, but are not limited to, all activities 
associated with scientific resources management such as research, 
census, law enforcement, habitat acquisition and maintenance, 
propagation, live trapping, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against destruction or adverse modification 
of critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7(a)(2) of the Act requires 
consultation on Federal actions that are likely to result in the 
destruction or adverse modification of critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow government or public 
access to private lands. Section 7(a)(2) of the Act is a purely 
protective measure and does not require implementation of restoration, 
recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Habitat occupied by the species at the time of listing may be 
included in critical habitat only if the essential features thereon may 
require special management considerations or protection. Thus, we do 
not include areas where existing management is sufficient to conserve 
the species. (As discussed below, such areas may also be excluded from 
critical habitat under section 4(b)(2) of the Act.) Furthermore, when 
the best available scientific data do not demonstrate that the 
conservation needs of the species require additional areas, we will not 
designate critical habitat in areas outside the geographical area 
occupied by the species at the time of listing. However, an area 
currently occupied by the species, but not occupied at the time of 
listing, will likely, but not always, be essential to the conservation 
of the species, and therefore, may be included in the critical habitat 
designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service biologists to the extent consistent 
with the Act and with the use of the best scientific data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat. When determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources may include the recovery plan for the species, articles in 
peer-reviewed journals, conservation plans developed by States and 
counties, scientific status surveys and studies, biological 
assessments, or other unpublished materials and expert opinion or 
personal knowledge. All information is used in accordance with the 
provisions of Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658) 
and the associated Information Quality Guidelines issued by the 
Service.
    Section 4 of the Act requires that we designate critical habitat 
and make revisions thereto on the basis of the best scientific data 
available. Habitat is often dynamic, and species may move from one area 
to another over time. Furthermore, we recognize that designation of 
critical habitat may not include all habitat areas eventually 
determined necessary for the recovery of the species. For these 
reasons, critical habitat designations do not imply that habitat 
outside the designation is unimportant or may not be required for 
recovery.
    Areas that support populations of the San Bernardino kangaroo rat, 
but are outside the critical habitat designation, will continue to be 
subject to conservation actions implemented under section 7(a)(1) of 
the Act and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard, as determined on the basis of the best 
available information at the time of the action. Federally funded or 
permitted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.

Methods

    As required by section 4(b) of the Act, we used the best scientific 
and commercial data available in determining areas occupied at the time 
of listing that contain features essential to the conservation of the 
San Bernardino kangaroo rat, and areas unoccupied at the time of 
listing that are essential to the conservation of the subspecies, or 
both. We have also reviewed available information pertaining to the 
habitat requirements of this subspecies. These data included: research 
and survey observations published in peer reviewed articles; regional 
Geographic Information System (GIS) coverages; Riverside County 
Multiple Species Habitat Conservation Program (MSHCP) database; the 
University of California, Riverside, species database; the California 
Natural Diversity Database; and data from reports submitted by 
biologists holding section 10(a)(1)(A) recovery permits, including 
results from ongoing research on the San Bernardino kangaroo rat by the 
San Bernardino County Museum. We are not currently proposing any areas 
outside the geographical area presently occupied by the subspecies.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat within areas occupied by the species at the time of listing, we 
consider those physical and biological features (primary constituent 
elements) that are essential to the

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conservation of the subspecies and that may require special management 
considerations or protection. These include, but are not limited to: 
(1) Space for individual and population growth and for normal behavior; 
(2) food, water, air, light, minerals, or other nutritional or 
physiological requirements; (3) cover or shelter; (4) sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
(5) habitats that are protected from disturbance or are representative 
of the historic, geographical, and ecological distributions of a 
species.
    The specific primary constituent elements (PCEs) required for the 
San Bernardino kangaroo rat are derived from the biological needs of 
the San Bernardino kangaroo rat as described below.

Space for Individual and Population Growth and Normal Behavior

    San Bernardino kangaroo rats are typically found on alluvial fans, 
which are relatively flat or gently sloping masses of loose rock, 
gravel, and sand deposited by a stream as it flows into a valley or 
upon a plain (McKernan 1993, p. 1). This subspecies is also found on 
floodplains, washes, areas with braided channels, and in adjacent 
upland areas containing appropriate physical and vegetative 
characteristics (McKernan 1993, p. 1). These areas consist of sand, 
loam, sandy loam, or gravelly soils (McKernan 1993, p. 1) that are 
associated with alluvial processes (i.e., the scour and deposition of 
clay, silt, sand, gravel, or similar material by running water such as 
rivers and streams; or debris flows). San Bernardino kangaroo rats have 
a strong preference for, and are more abundant on, soils deposited by 
alluvial processes (McKernan 1997, p. 36). These soils allow San 
Bernardino kangaroo rats to dig simple, shallow burrow systems for 
shelter and rearing offspring, and surface pits for food storage that 
provide for individual and population growth and for normal behavior of 
this subspecies.
    Few studies have been conducted on the burrowing behavior of the 
San Bernardino kangaroo rat; however, their burrowing habits are 
similar to the Merriam's kangaroo rat (of which the San Bernardino 
kangaroo rat is a subspecies) which has been extensively studied. 
Merriam's kangaroo rats have weak forelegs and are poor diggers; as a 
result, they dig simple shallow burrow systems where they spend 
approximately 75 percent of their lives (Reynolds 1958, pp. 113 and 
122). Burrows consist of one or two chambers and average 6 inches in 
depth (Reynolds 1960, p. 51). Kenagy (1973, p. 1207) observed that 
Merriam's kangaroo rats occupied one to three simple burrows depending 
on the season. Merriam's kangaroo rats do not have the ability to 
burrow into hard soils, and because of this, the highest numbers of 
kangaroo rats can be found on loose, sandy soils (Reynolds 1958, p. 
113; Huey 1951, p. 212). Light, textured soil that is favorable to 
burrowing is an important factor limiting the range of Merriam's 
kangaroo rats (Reynolds 1958, p. 114). Sandy loam soils are not too 
heavy to discourage digging, yet they are not light enough to 
facilitate tunnel cave-ins that can occur in other soil types (Reynolds 
1958, p. 113). For these reasons, sandy loam soils found on alluvial 
fans and maintained by alluvial processes are crucial to the survival 
and normal behavior of the San Bernardino kangaroo rat.
    Alluvial sage scrub habitat is necessary for normal behavior of the 
San Bernardino kangaroo rat because this plant community provides cover 
and food resources within areas containing suitable soils for 
burrowing. Alluvial sage scrub is considered a distinct and rare plant 
community that dominates major outwash fans at the mouths of canyons 
along the coastal side of the San Gabriel, San Bernardino, and San 
Jacinto Mountains and some smaller floodplain and riverine areas of 
southern California (Hanes et al. 1989, p. 187). Described as a variant 
of coastal sage scrub (Smith 1980, p. 135), alluvial sage scrub is also 
referred to as alluvial scrub, Riversidean alluvial fan scrub, alluvial 
fan sage scrub, cismontane alluvial scrub, alluvial fan scrub, or 
Riversidean alluvial fan sage scrub. Alluvial sage scrub occurs on two 
types of floodplain soils, Riverwash Association soils and Soboba 
Association soils (Hanes et al. 1989, p. 188). Comprised of an 
assortment of low growing drought-deciduous shrubs, larger evergreen 
woody shrubs, and other perennial species tolerant of a relatively 
sterile, rapidly draining substrate, this relatively open vegetation 
type is adapted to periodic severe flooding and erosion (Hanes et al. 
1989, p. 187; Smith 1980, p. 126).
    Alluvial sage scrub vegetation includes plant species that are 
often associated with coastal sage scrub, chaparral, or desert 
transition communities (Smith 1980, p. 126). Common plant species found 
within these plant communities may include: Lepidospartum squamatum 
(scalebroom), Eriogonum fasciculatum (California buckwheat), 
Eriodictyon crassifolium (woolly yerba santa), Eriodictyon trichocalyx 
(hairy yerba santa), Yucca whipplei (our Lord's candle), Rhus ovata 
(sugar bush), Rhus integrifolia (lemonadeberry), Malosma laurina 
(laurel sumac), Juniperus californicus (California juniper), Baccharis 
salicifolia (mulefat), Penstemon spectabilis (showy penstemon), 
Heterotheca villosa (golden aster), Eriogonum elongatum (tall 
buckwheat), Encelia farinosa (brittle bush), Opuntia spp. (prickly pear 
and cholla), Adenostoma fasciculatum (chamise), Prunus ilicifolia 
(holly-leaf cherry), Quercus spp. (oaks), Salvia apiana (white sage), 
annual forbs (e.g., Phacelia spp. (phacelia), Lupinus spp. (lupine), 
and Plagiobothrys spp. (popcorn flower)), and native and nonnative 
grasses.
    Three phases of alluvial sage scrub have been described: pioneer, 
intermediate, and mature. The phases are thought to correspond to 
factors such as flood scour, distance from flood channel, time since 
last flood, and substrate features (Smith 1980, p. 136; Hanes et al. 
1989, p. 187). Under natural conditions, flood waters periodically 
break out of the main river channel in a complex pattern, resulting in 
a braided appearance to the floodplain and a mosaic of vegetation 
stages. Pioneer sage scrub, the earliest phase, is subject to frequent 
hydrological disturbance and the sparse vegetation pattern is usually 
renewed by frequent floods (Smith 1980, p. 136; Hanes et al. 1989, p. 
187). The intermediate phase, which is typically found on benches 
between the active channel and mature floodplain terraces, is subject 
to periodic flooding at longer intervals. The vegetation of early and 
intermediate stages is relatively open (less than 50 percent canopy 
cover) and supports the highest densities of the San Bernardino 
kangaroo rat (McKernan 1997, p. 50), likely due in part to few root 
systems to interfere with burrowing. Areas like these, with a 
significant amount of bare ground, can also facilitate movement for a 
bipedal species like the San Bernardino kangaroo rat. For Merriam's 
kangaroo rats, an abundance of perennial grass cover can create an 
unfavorable environment by interfering with ease of travel and escape 
from predators (Reynolds 1958, p. 114).
    The oldest, or mature phase of alluvial sage scrub, which is found 
on elevated floodplain terraces, is rarely affected by flooding and 
supports the highest plant density (Smith 1980, p. 137). Although 
mature areas are generally used less frequently or occupied at lower 
densities by San Bernardino kangaroo rats (likely due to extensive root 
systems and heavy vegetative cover that inhibit burrowing

[[Page 33812]]

and predator escape) than those supporting earlier phases, these areas 
are essential for the conservation of the subspecies. Lower portions of 
the floodplain, where higher densities of San Bernardino kangaroo rats 
are found, are likely to become inundated or lost due to scour and 
sediment deposition during flooding events, and some animals may drown 
during the event. In a study to determine the effects of flooding on 
Merriam's kangaroo rats and two other heteromyid (family of rodents 
that includes the kangaroo rats, kangaroo mice, and pocket mice) 
species, Kenagy (1973, p. 1205) noted heavy burrow damage, and a 23 
percent reduction in the number of chisel-toothed kangaroo rats 
(Dipodomys microps) trapped compared to pre-flood numbers. Elevated 
upland portions of the floodplain containing mature phase alluvial sage 
scrub with patches of suitable soils and vegetative cover can support 
some individuals, but the low density of animals suggests these areas 
likely remain occupied only because of their proximity to the more 
densely occupied lower elevation portions of the floodplain. More 
importantly for the preservation of the subspecies in channelized 
systems where bank-to-bank flooding can occur, individuals occupying 
the upland areas may be the only San Bernardino kangaroo rats remaining 
for recolonization of the lower floodplain after flooding has subsided 
(Pavelka 2006). Research conducted by Braden and McKernan (2000, p. 16) 
during 1998 and 1999 demonstrated that areas with late phases of 
floodplain vegetation, such as mature alluvial fan sage scrub and 
associated coastal sage scrub and chaparral, including some areas of 
moderate to dense vegetation such as nonnative grasslands, are at least 
periodically occupied by the subspecies. Due to the dynamic nature of 
the alluvial floodplain, all elevations within the floodplain and the 
associated phases of alluvial sage scrub habitat are essential to the 
conservation and long-term survival of the San Bernardino kangaroo rat.
    A limited amount of data exists pertaining to population dynamics 
of the San Bernardino kangaroo rat. Information is not currently 
available on several aspects of the subspecies' life history such as 
fecundity (the capacity of an organism to produce offspring), survival, 
population age and sex structure, intra- and interspecific competition, 
and causes and rates of mortality. With respect to population density, 
Braden and McKernan (2000) documented substantial annual variation on a 
trapping grid in San Bernardino County, where densities ranged from 2 
to 26 animals per ha (2.47 ac). The reasons for these greatly disparate 
values during the 15-month study are unknown. These fluctuations bring 
to light several important aspects of the subspecies' distribution and 
life history which should be considered when identifying areas 
essential for the conservation of the subspecies: (1) A low population 
density observed in an area at one point in time does not mean the area 
is occupied at the same low density during any other month, season, or 
year; (2) a low population density is not an indicator of low habitat 
quality or low overall value of the land for the conservation of the 
subspecies; (3) an abundance of San Bernardino kangaroo rats can 
decrease rapidly; and (4) one or more factors (e.g., food availability, 
fecundity, disease, predation, genetics, environment) are strongly 
influencing the subspecies' population dynamics in one or more areas. 
High-amplitude, high-frequency fluctuations in small, isolated 
populations make the San Bernardino kangaroo rat extremely susceptible 
to local extirpation.
    Areas that contain low densities of San Bernardino kangaroo rats 
may be important for dispersal, genetic exchange, colonization of newly 
suitable habitat, and re-colonization of areas after severe storm 
events. The dynamic nature of the alluvial habitat leads to a situation 
where not all of the habitat associated with alluvial processes is 
suitable for the species at any point in time. However, areas generally 
considered unsuitable habitat, such as out-of-production vineyards and 
margins of orchards, can and do develop into suitable habitat for the 
subspecies through natural processes (67 FR 19812). The San Bernardino 
kangaroo rat has been documented in areas containing suitable soils 
that have been altered due to human disturbance not typically 
associated with the subspecies, including nonnative grasslands; margins 
of orchards and out-of-use vineyards from adjacent, mature stage 
alluvial sage scrub with greater than 50 percent canopy cover; and 
areas of wildland/urban interface within floodplains or terraces and 
adjacent to occupied habitat (67 FR 19812, April 23, 2002). These 
upland areas can support individuals for repopulation of wash areas 
extirpated by flood events (Pavelka 2006). This can occur directly by 
dispersal of adult individuals, or indirectly through dispersal of 
offspring (Pavelka 2006).
    Little is known about home range size, dispersal distances, or 
other spatial requirements of the San Bernardino kangaroo rat. However, 
home ranges for the Merriam's kangaroo rat in the Palm Springs, 
California, area averaged 0.8 ac (0.3 ha) for males and 0.8 ac (0.3 ha) 
for females (Behrends et al. 1986, p. 204). Furthermore, Blair (1943, 
p. 26) reported much larger home ranges for Merriam's kangaroo rats in 
New Mexico, where home ranges averaged 4.1 ac (1.7 ha) for males and 
3.9 ac (1.6 ha) for females. Space requirements for the San Bernardino 
kangaroo rat likely vary according to season, age and sex of animal, 
food availability, and other factors. Although outlying areas of their 
home ranges may overlap, Dipodomys adults actively defend small core 
areas near their burrows (Jones 1993, p. 583). Home range overlap 
between males and between males and females is extensive, but female-
female overlap is slight (Jones 1993, p. 584). The degree of 
competition between San Bernardino kangaroo rats and sympatric (living 
in the same geographical area) species of kangaroo rats for food and 
other resources is not presently known. While we do not have sufficient 
information to quantify the home range required by the San Bernardino 
kangaroo rat, through the delineation of critical habitat in wash and 
upland areas, it is likely that we have included sufficient areas to 
provide the space needed to maintain the home range for this subspecies 
in this proposed revised critical habitat designation.

Food

    As stated in the previous sections, the alluvial sage scrub plant 
community occupied by the San Bernardino kangaroo rat provides food 
resources for the subspecies. However, little is known about the 
specific diet of San Bernardino kangaroo rats. They emerge from their 
burrow systems at sunset and feed at night, when they are most active. 
San Bernardino kangaroo rats are generally granivorous (feed on seeds 
and grains) and like most Merriam's kangaroo rats, often store large 
quantities of seeds in surface pits for later consumption (Reichman and 
Price 1993, p. 540; Reynolds 1958, p. 126). This species feeds 
primarily on the seeds of alluvial sage scrub species, but green 
vegetation and insects can also be important seasonal food sources. 
Insects, when available, have been documented to constitute as much as 
50 percent of a kangaroo rat's diet (Reichman and Price 1993, p. 540).
    Wilson et al. (1985, p. 731) reported that in comparison to other 
rodents, Merriam's kangaroo rat, and heteromyids in general, have 
relatively low reproductive output that can be linked to food 
resources. Rainfall and

[[Page 33813]]

the availability of food have been cited as factors affecting kangaroo 
rat populations. Droughts lasting more than a year can cause rapid 
declines in population numbers after seed caches are depleted 
(Goldingay et al. 1997, p. 56).

Cover or Shelter

    San Bernardino kangaroo rats depend on proper soils for burrowing 
and vegetative cover for shelter from predation. Potential predators 
include the common barn owl (Tyto alba), great horned owl (Bubo 
virginianus), long-eared owl (Asio otus), gray fox (Urocyon 
cinereoargenteus), coyote (Canis latrans), long-tailed weasel (Mustela 
frenata), bobcat (Felis rufus), badger (Taxidea taxus), San Diego 
gopher snake (Pituophis melanoleucus annectens), California king snake 
(Lampropeltis getulus californiae), red diamond rattlesnake (Crotalus 
ruber), southern Pacific rattlesnake (Crotalus viridus), and domestic 
cats (Felis cattus) (Bolger et al. 1997, p. 560; 67 FR 19812, April 23, 
2002).

Primary Constituent Elements for the San Bernardino Kangaroo Rat

    Under the Act and its implementing regulations, we are required to 
identify the known physical and biological features (PCEs) within the 
geographical area occupied by the San Bernardino kangaroo rat at the 
time of listing, which may require special management considerations or 
protection.
    Based on our current knowledge of the life history, biology, and 
ecology of the San Bernardino kangaroo rat and the requirements of the 
habitat to sustain the essential life history functions of the 
subspecies, we have determined that the PCEs specific to the San 
Bernardino kangaroo are:
    (1) Alluvial fans, washes, and associated floodplain areas 
containing soils consisting predominately of sand, loamy sand, sandy 
loam, and loam, which provide burrowing habitat necessary for 
sheltering and rearing offspring, storing food in surface caches, and 
movement between occupied patches;
    (2) Upland areas adjacent to alluvial fans, washes, and associated 
floodplain areas containing alluvial sage scrub habitat and associated 
vegetation, such as coastal sage scrub and chamise chaparral, with up 
to approximately 50 percent canopy cover providing protection from 
predators, while leaving bare ground and open areas necessary for 
foraging and movement of this subspecies; and
    (3) Upland areas adjacent to alluvial fans, washes, and associated 
floodplain areas, which may include marginal habitat such as alluvial 
sage scrub with greater than 50 percent canopy cover with patches of 
suitable soils (PCE 1) that support individuals for re-population of 
wash areas following flood events. These areas may include agricultural 
lands, areas of inactive aggregate mining activities, and urban/
wildland interfaces.
    This proposed revision to the critical habitat designation is 
designed for the conservation of PCEs necessary to support the life 
history functions that were the basis for the proposal and the areas 
containing the PCEs. Because not all life history functions require all 
the PCEs, not all proposed revised critical habitat units will contain 
all the PCEs.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain features 
essential to the conservation of the subspecies that may require 
special management considerations or protection. We have also 
considered how revising the current designation of critical habitat 
highlights habitat in need of special management considerations or 
protection.
    The majority of all remaining suitable habitat, and the long-term 
persistence of the San Bernardino kangaroo rat, is threatened by the 
direct and indirect effects of: sand and gravel mining; construction, 
operation, and maintenance of flood control structures; water 
conservation activities; urban and industrial development; agricultural 
activities; and off-road vehicle activity. With an expanding human 
population in the region, it is likely that these activities will 
continue to threaten the habitat and PCEs upon which the San Bernardino 
kangaroo rat depends.
    Sand and gravel mining operations have degraded San Bernardino 
kangaroo rat habitat in all of the proposed revised critical habitat 
units, with major operations occurring in the Santa Ana River and Lytle 
Creek washes. Mining activities directly affect the PCEs for the 
subspecies by altering soil composition and structure, and by stripping 
away vegetative cover (PCEs 1 and 2). Furthermore, flood control 
structures are often built to protect mining operations from flood 
damage. This alters the hydrology essential for maintaining proper soil 
and alluvial sage scrub habitat for the San Bernardino kangaroo rat 
(PCEs 1 and 2). Special management considerations or protection may be 
required to minimize effects of mining activities on alluvial sage 
scrub habitat and the natural hydrological processes that maintain 
proper alluvial sage scrub conditions for the San Bernardino kangaroo 
rat. Such management may include restoring habitat in areas degraded 
from past mining activities to conditions suitable for this subspecies.
    Flood control and water conservation activities related to 
increasing human population and development have had major impacts on 
San Bernardino kangaroo rat habitat and the alluvial processes that 
maintain habitat in each of the proposed revised critical habitat 
units. Flood control berms, levees, and concrete-lined channels 
increase severity (velocity and scour) of flood events in lower 
elevations within the flood plain, and cut off upland portions of 
alluvial sage scrub habitat from hydrological processes that maintain 
suitable San Bernardino kangaroo rat conditions (PCEs 1, 2, and 3). In 
the absence of periodic flooding and scouring, upland alluvial sage 
scrub habitat increases in cover and in density of nonnative vegetation 
to the point where the open canopy and ground conditions (PCE 2) 
preferred by the subspecies no longer exist (Service 2004, p. 293). 
Some flood control structures, such as concrete channels, can prevent 
movement and dispersal between occupied areas of the alluvial wash and 
floodplain. Decades of groundwater pumping have severely depleted 
groundwater reserves within San Bernardino kangaroo rat habitat and 
have resulted in an ever-increasing need to recharge groundwater 
supplies by percolation of local or imported water sources into the 
local groundwater basin (Service 2004, p. 293). Further habitat 
degradation occurs where groundwater recharge ponds (percolation 
basins) have been constructed. Recharge structures are unsuitable for 
the San Bernardino kangaroo rat due to periodic standing water. These 
structures are especially evident in the Santa Ana River and San 
Jacinto River washes. Special management considerations or protection 
may be required to minimize effects of flood control and water 
conservation activities on alluvial sage scrub habitat and the natural 
hydrological processes that maintain proper alluvial sage scrub 
conditions for the San Bernardino kangaroo rat.
    Development projects pose a serious threat to San Bernardino 
kangaroo rat habitat in all three proposed revised critical habitat 
units. As the human population of the surrounding area continues to 
increase, the threat of development encroaching upon alluvial washes 
and associated upland areas will persist (PCEs 1, 2, and 3). Large-
scale

[[Page 33814]]

development projects, like the Lytle Creek North Master Planned 
Community (described below), permanently eliminate and fragment habitat 
containing the PCEs for the subspecies. Furthermore, continued 
fragmentation of habitat is likely to promote higher levels of 
predation by native animals (Bolger et al. 1997, p. 560) and urban-
associated animals (e.g., domestic cats, opossums (Didelphis 
virginianus), and striped skunks (Mephitis mephitis)) as the interface 
between natural habitat and urban areas is increased (Churcher and 
Lawton 1987, p. 452). Roadways and bridges built to accommodate the 
growing population in the area constrict channel width and contribute 
to the removal of alluvial fan habitat from normal hydrological 
processes (PCE 1). The downstream alluvial benches become isolated 
behind the fill used to construct the bridge within the channel area 
and do not experience natural flood-borne scour and deposition. Pier 
and footing placement within channels is a typical necessary bridge 
design feature. Instream piers create scour areas in front of the 
piers, increase water velocity through the embankments and piers (which 
can result in downstream erosion), and create a permanent shadow over 
habitat under the bridge. These factors typically result in permanently 
degraded habitat for San Bernardino kangaroo rat even though high flows 
are seasonal in this area. Special management considerations or 
protection may be required to minimize the impacts of development 
within the alluvial wash and adjacent upland areas. Areas of the 
alluvial washes and floodplains adjacent to development may require 
exclusionary fencing and signage to minimize human and domestic animal 
disturbance of San Bernardino kangaroo rat habitat. Because this 
subspecies is active at night, lights from adjacent developed areas 
should be minimized and directed away from San Bernardino kangaroo rat 
habitat.
    Agricultural activities adjacent to all three proposed revised 
critical habitat units occasionally result in the discing of patches of 
suitable or occupied habitat that may be distributed throughout upland 
agricultural areas. Discing destroys San Bernardino kangaroo rat 
burrows and degrades remaining vegetation associations (Service 2004, 
p. 293) (PCEs 1 and 2). This can contribute to the susceptibility of 
local populations to extinction during large-scale flood events by 
restricting San Bernardino kangaroo rats to areas most vulnerable to 
flooding (i.e., lower elevations of the floodplain) (Service 2004, p. 
293). Special management considerations or protection may be required 
to minimize effects of agricultural activities on alluvial sage scrub 
habitat.
    Unauthorized off-road vehicle activity continues to be a threat to 
San Bernardino kangaroo rat habitat in the San Jacinto River wash area. 
Most of this activity occurs within the wash downstream of the East 
Main Street/Lake Park Drive Bridge. Off-road activity that goes 
unchecked directly damages plant communities, the soil crust, and the 
burrow systems of kangaroo rats, thereby degrading habitat (Bury et al. 
1977, p. 16; Service 2004, p. 293) (PCEs 1 and 2). Special management 
considerations or protection, such as exclusionary fencing, additional 
enforcement, and signage placed around areas of the wash, may be needed 
to minimize impacts from unauthorized off-road vehicle use.

Criteria Used To Identify Critical Habitat

    We are proposing to revise critical habitat for the San Bernardino 
kangaroo rat in areas that we have determined were occupied at the time 
of listing, and that contain sufficient primary constituent elements 
(PCEs) to support life history functions essential for the conservation 
of the species. Lands are proposed for revised designation based on 
sufficient PCEs being present to support the life processes of the 
species. Some lands contain all PCEs and support multiple life 
processes. Some lands contain only a portion of the PCEs necessary to 
support the particular use of that habitat.
    We define occupied habitat as: (a) Those areas containing 
occurrence data from the time of listing (1980 to 1998); (b) those 
areas containing occurrence data since the time of listing (1998 to 
present); (c) areas adjacent to and between occurrence points that 
maintain connectivity of occurrences in one continuous patch of 
suitable habitat. As discussed in the Background section of this 
proposed rule, occurrences discovered since the listing of the 
subspecies in 1998 are within areas known to be occupied at the time of 
listing (Santa Ana River wash, Lytle and Cajon washes, and San Jacinto 
River area).
    In this proposed revised designation we have focused primarily on 
core populations (i.e., areas where the subspecies has been repeatedly 
detected through live trapping) that are considered necessary for 
conservation and recovery of the San Bernardino kangaroo rat. We 
believe protecting these core populations is what is necessary for 
recovery of the species. Protecting peripheral populations, or areas of 
degraded habitat where sitings are sporadic is not necessary for 
recovery.
    Utilizing 2005 aerial imagery and occurrence data used to determine 
areas of occupancy, we delineated proposed revised critical habitat on 
maps to include non-degraded alluvial fans, washes, floodplains, and 
adjacent upland areas containing the PCEs required by the San 
Bernardino kangaroo rat. We then made site visits accompanied by 
subspecies experts to confirm the presence of PCEs in the areas 
delineated on the maps. Areas determined not to contain any of the PCEs 
(i.e., degraded) during site visits are not included in the areas 
proposed as revised critical habitat. Because of the importance of 
upland habitat for source populations to re-populate wash areas 
following flood events, we include non-degraded (containing one or more 
PCEs) upland habitat adjacent to occupied wash habitat containing 
appropriate soils and vegetation community in this proposed revised 
designation.
    When determining the proposed revisions to critical habitat 
boundaries, we made every effort to avoid including developed areas 
such as buildings, paved areas, and other structures that lack PCEs for 
the San Bernardino kangaroo rat. Areas currently being used for sand/
gravel mining operations (e.g., pits, staging areas) do not contain the 
PCEs required by the San Bernardino kangaroo rat. The scale of the maps 
prepared under the parameters for publication within the Code of 
Federal Regulations may not reflect the exclusion of such developed 
areas. Any developed structures and the land under them inadvertently 
left inside critical habitat boundaries shown on the maps of this 
proposed revision to critical habitat have been excluded by text in 
this rule and are not proposed for designation as critical habitat. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultation, unless they may affect the subspecies or PCEs 
in adjacent critical habitat.

Summary of Proposed Changes to Currently Designated Critical Habitat

    The areas identified in this proposed rule constitute a proposed 
revision of the critical habitat designation for the San Bernardino 
kangaroo rat, published on April 23, 2002 (67 FR 19812). For maps 
showing existing and proposed revised critical habitat visit our Web 
site at http://carlsbad.fws.gov.

[[Page 33815]]

    Our proposed revised critical habitat designation is substantially 
smaller than the existing designation. Given the new information that 
has become available to us in the five years since the previous 
designation, we find that we erroneously designated some areas. We find 
that areas previously proposed but not proposed in this rule are not 
essential to the conservation of the species, because of new 
information (see Criteria Used To Identify Critical Habitat section). 
The changes in this rule are due to several factors. Better biological 
information has allowed us to more specifically define PCEs for this 
species, and site visits in December 2006 and January 2007 allowed us 
to more precisely define these areas on the ground. This allowed us to 
remove areas that do not meet our criteria for features that are 
essential to the conservation of the species. The 2002 critical habitat 
designation included areas that supported few occurrence records. Such 
areas of low density occupation, or sporadic occupancy, have been 
removed from the proposed revised designation, for such areas do not 
represent core populations and, therefore, are not necessary for the 
conservation and recovery of the species. Finally, we have employed 
refined mapping techniques in the current revision, which have allowed 
us to more precisely map areas that contain PCEs. This more refined 
approach has allowed us to remove areas that do not meet the definition 
of critical habitat.
    The main differences in this proposed revised designation include 
the following:
    (1) On the basis of our new analyses, we have determined that 
portions of existing Unit 1 (Santa Ana River), Unit 2 (Lytle and Cajon 
Creeks), and Unit 3 (San Jacinto River), and all of Unit 4 (Etiwanda 
Alluvial Fan and Wash) do not contain PCEs in the quality and quantity 
needed for conservation of the species or do not support core 
populations of the taxon. These areas total 24,211 ac (9,798 ha) of 
habitat originally designated as critical habitat in 2002. Therefore we 
are not proposing to include these areas in our proposed revision to 
critical habitat. The following paragraphs provide unit by unit 
explanations for why areas previously designated as critical habitat no 
longer fit our definition of critical habitat for the San Bernardino 
kangaroo rat.
    We have removed approximately 5,311 ac (2,149 ha) within Unit 1 
from our proposed revision to critical habitat, largely because 
portions of the Unit do not contain the PCEs, but also because 
occurrence data for some areas indicates that they do not support a 
core population of San Bernardino kangaroo rat. South of Mill Creek, a 
flood control levee has cut off habitat from fluvial processes, which 
has resulted in overgrown vegetation and water retention basins that 
are unsuitable habitat conditions for the subspecies. A large area 
extending from the existing critical habitat in and south of Plunge 
Creek west to the confluence of City Creek with the Santa Ana River has 
been degraded through mining operations, flood control structures (and 
the subsequent loss of fluvial influence), and water retention basins. 
The habitat downstream of the Tippecanoe Avenue Bridge is heavily 
channelized with steep banks inhibiting the use of upland habitat; we 
do not have data indicating that this area is occupied. Because these 
areas do not contain PCEs and/or do not support core populations, we 
are not including them in the proposed revision to critical habitat.
    We have removed approximately 9,284 ac (3,757 ha) within Unit 2 
from our proposed revision to critical habitat, largely because 
portions of the Unit do not contain the PCEs, but also because 
occurrence data for some areas indicates that they do not support a 
core population of San Bernardino kangaroo rat. Two areas northeast of 
the main Lytle-Cajon Creek unit contain habitat that has been degraded 
and these areas are largely unoccupied. The southernmost portion of 
Lytle Creek contains habitat that has been degraded through surface 
mining and flood control structures, making this area unsuitable for 
the subspecies. The upper reaches of both Lytle and Cajon Creeks 
contain large rocky substrates that do not provide habitat for this 
subspecies and we have no recent occurrence data for these upstream 
areas. Portions of habitat along the Lytle Creek arm have been degraded 
from sand and gravel mining operations and associated infrastructure. 
Approximately 670 ac (271 ha) of existing critical habitat north of 
Lytle Creek and east of I-15 is currently under development for the 
Lytle Creek North development project, and was addressed through formal 
section 7 consultation with the Service. A large expanse of a remnant 
flood plain south of Lytle Creek and I-15, and west of Riverside Avenue 
is partially developed and does not contain the PCEs for the 
subspecies. This area is void of fluvial influence and is cut off from 
the core population by roadways. Because these areas do not contain 
PCEs and/or do not support core populations, we are not including them 
in the proposed revision to critical habitat.
    We have removed approximately 4,796 ac (1,941 ha) within Unit 3 
from our proposed revision to critical habitat, largely because 
portions of the Unit do not contain the PCEs, but also because 
occurrence data for some areas indicates that they do not support a 
core population of San Bernardino kangaroo rat. Bautista Creek and the 
downstream reach of the San Jacinto River are largely channelized, and 
do not provide suitable habitat or contain the PCEs essential to the 
San Bernardino kangaroo rat. These channelized areas prevent 
connectivity with the core population in the San Jacinto wash. We have 
do not have occurrence data or habitat condition data for the two 
tributaries on Tribal land north of the San Jacinto wash and are not 
proposing critical habitat on Tribal lands (see Government-to-
Government Relationship with Tribes section). Portions of the habitat 
downstream of the Bautista Creek confluence have been or are in the 
process of being developed or are being used for water conservation 
activities and therefore this habitat does not contain the PCEs. 
Because these areas do not contain PCEs and/or do not support core 
populations, we are not including them in the proposed revision to 
critical habitat.
    We have removed approximately 4,820 ac (1,951 ha) within Unit 4 
from our proposed revision to critical habitat because Unit 4 consists 
largely of unoccupied areas that are not essential to the conservation 
of the San Bernardino kangaroo rat. Occupied areas within this unit do 
not contain the PCEs necessary for the subspecies.
    (2) We re-evaluated and revised the PCEs as needed in light of 
Homebuilder's Ass'n of Northern Cal. v. U.S. Fish and Wildlife Service, 
268 F. Supp.2d 1197 (E.D. Cal. 2003), other applicable law, and current 
Service guidelines and policies. We propose to revise the PCEs to 
provide more specificity with regards to the location of and necessity 
for suitable soil types, vegetative habitat, and upland areas related 
to the biological needs of the subspecies. We also include a range of 
the preferred percentage of vegetative cover. Revisions to the PCEs 
alone did not result in the removal of existing critical habitat from 
this proposed revised critical habitat designation.

Proposed Revisions to the Critical Habitat Designation

    We are proposing approximately 9,079 ac (3,674 ha) within three 
units as critical habitat for the San Bernardino kangaroo rat. These 
units, which generally correspond to the units in the 2002 designation, 
if finalized, would

[[Page 33816]]

entirely replace the current critical habitat designation for the San 
Bernardino kangaroo rat in 50 CFR 17.95(a). The critical habitat areas 
described below constitute our best assessment currently of areas 
occupied at the time of listing containing the PCEs that may require 
special management considerations or protection. The three units 
proposed as critical habitat are: (1) Unit 1--Santa Ana River Wash, (2) 
Unit 2--Lytle/Cajon Creek Wash, and (3) Unit 3--San Jacinto River Wash.
    Of the 9,079 ac (3,674 ha) being proposed as revised critical 
habitat, we are proposing to exclude approximately 2,544 ac (1,029 ha) 
from the final critical habitat designation under section 4(b)(2) of 
the Act. See Exclusions Under Section 4(b)(2) of the Act section for a 
detailed discussion.
    The approximate area (ac, ha) encompassed within each proposed 
revised critical habitat unit, land ownership, and areas proposed for 
exclusion from the final critical habitat designation are shown in 
Table 1.

 Table 1.--Area (Acres (ac), Hectares (ha)) Being Proposed as Revised Critical Habitat, Land Ownership, and Area
 Being Proposed for Exclusion From the Final Critical Habitat Designation for the San Bernardino Kangaroo Rat in
                                San Bernardino and Riverside Counties, California
               [Area estimates reflect all land within proposed critical habitat unit boundaries]
----------------------------------------------------------------------------------------------------------------
                                                                    Area proposed as      Area being considered
        Critical habitat unit               Land ownership          revised critical        for exclusion from
                                                                        habitat           final critical habitat
----------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash, San           Federal (BLM) \1\......  559 ac (226 ha)........  00 ac (00 ha).
 Bernardino County.
                                       Local\2\...............  268 ac (109 ha)........  268 ac (109 ha).
                                       Private................  2,797 ac (1,132 ha)....  742 ac (300 ha).
                                                               -------------------------------------------------
                                       Subtotal...............  3,624 ac (1,467 ha)....
----------------------------------------------------------------------------------------------------------------
2. Lytle/Cajon Creek Wash, San         Federal (USFS) \3\.....  89 ac (36 ha)..........  00 ac (00 ha).
 Bernardino County.
                                       Private................  4,597 ac (1,860 ha)....  1,271 ac (514 ha).
                                                               -------------------------------------------------
                                       Subtotal...............  4,686 ac (1,896 ha)....
----------------------------------------------------------------------------------------------------------------
3. San Jacinto River Wash, Riverside   Water District \4\.....  506 ac (205 ha)........  00 ac (00 ha).
 County.
                                       Local Flood\5\.........  94 ac (38 ha)..........  94 ac (38 ha).
                                       Private................  169 ac (68 ha).........  169 ac (68 ha).
                                                               -------------------------------------------------
                                       Subtotal...............  769 ac (311 ha)........
                                      --------------------------------------------------------------------------
     Total...........................  .......................  9,079 ac (3,674 ha)....  2,544 ac (1,029 ha).
----------------------------------------------------------------------------------------------------------------
1--BLM = Bureau of Land Management.
2--Local = Local Reuse Authority.
3--USFS = U.S. Forest Service.
4--Water District = Eastern Municipal Water District and Lake Hemet Municipal Water District.
5--Local Flood = Riverside County Flood Control.


       TABLE 2.--Occupancy of Proposed Revised Critical Habitat Units for the San Bernardino Kangaroo Rat.
----------------------------------------------------------------------------------------------------------------
                                 Occupied at the time
     Critical habitat unit           of listing?         Occupied currently?           Acres (hectares)
----------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash, San     Yes.................  Yes..................  3,624 ac (1,467 ha).
 Bernardino County.
2. Lytle/Cajon Creek Wash, San  Yes..................  Yes..................  4,686 ac (1,896 ha).
 Bernardino County.
3. San Jacinto River Wash,      Yes..................  Yes..................  769 ac (311 ha).
 Riverside County.
                               ---------------------------------------------------------------------------------
     Total....................  .....................  .....................  9,079 ac (3,674 ha)
----------------------------------------------------------------------------------------------------------------

    Below, we present brief descriptions of all units and reasons why 
they meet the definition of critical habitat for the San Bernardino 
kangaroo rat.

Unit 1: Santa Ana River Wash

    Unit 1 consists of approximately 3,624 ac (1,467 ha) and is located 
in San Bernardino County. This unit includes the Santa Ana River and 
portions of City, Plunge, and Mill creeks. The area includes lands 
within the cities of San Bernardino, Redlands, Highland, and Colton. 
Although Seven Oaks Dam (northeast of Unit 1) impedes sediment 
transport and reduces the magnitude, frequency, and extent of flood 
events from the Santa Ana River, the system still retains partial 
fluvial dynamics because contributions from Mill Creek are not impeded 
by a dam or debris basin. This critical habitat unit was occupied at 
the time of listing, is currently occupied, and contains all of the 
PCEs (PCEs 1, 2, and 3) essential to the conservation of the San 
Bernardino kangaroo rat. Additionally, this unit contains the highest 
densities of San Bernardino kangaroo rat in the Santa Ana wash. The 
PCEs contained within this unit may require special management 
considerations or protection to minimize impacts associated with flood 
control operations, water conservation projects, sand and gravel 
mining, and urban development.
    Approximately 742 ac (300 ha) of Unit 1 occurs within the Woolly-
Star Preserve Area (WSPA), a section of the flood plain downstream of 
Seven Oaks Dam that was preserved by the flood control districts of 
Orange, Riverside, and San Bernardino counties. The WSPA was 
established in 1988 by the Army Corps of Engineers (ACOE) to minimize 
the effects of Seven Oaks Dam on the federally endangered plant,

[[Page 33817]]

Eriastrum densifolium ssp. sanctorum (Santa Ana River woolly-star). 
This area of alluvial fan scrub in the wash near the low-flow channel 
of the river was designated for preservation because these sections of 
the wash were thought to have the highest potential to maintain the 
hydrology necessary for the periodic regeneration of early phases of 
alluvial fan sage scrub. A 1993 Management Plan for the Santa Ana River 
WSPA has been completed, and a draft multi-species habitat management 
plan (MSHMP) for WSPA lands, which includes protection for the San 
Bernardino kangaroo rat, is to be completed as an additional 
conservation measure pursuant to our December 19, 2002, biological 
opinion on operations for Seven Oaks Dam (Service 2002b, p. 8). As a 
result, we are proposing to exclude WSPA lands (741 ac (300 ha)) that 
fall within the area proposed as revised critical habitat from the 
final revised critical habitat designation based on the benefits to the 
subspecies provided by these plans (see Exclusions Under Section 
4(b)(2) of the Act for a detailed discussion).
    In 1994, the Bureau of Land Management (BLM) designated three 
parcels in the Santa Ana River, a total of approximately 760 ac (305 
ha), as an ACEC (Area of Critical Environmental Concern). One parcel is 
located south of the Seven Oaks barrow pit, another is farther west and 
south of Plunge Creek, and the third is located farther west between 
two large mining pits. The primary goal of this ACEC designation is to 
protect and enhance the habitat of federally listed plant species 
occurring in the area while providing for the administration of valid 
existing water conservation rights. Although the establishment of this 
ACEC is important in regard to conservation of sensitive species and 
communities in this area, the administration of valid existing water 
conservation rights conflicts with the BLM's ability to manage their 
lands for the San Bernardino kangaroo rat. Existing rights include a 
withdrawal of Federal lands for water conservation through an act of 
Congress on February 20, 1909 (Public Law 248, 60th Cong., 2nd sess.). 
The entire ACEC is included in this withdrawn land and may be used for 
water conservation measures such as the construction of percolation 
basins. Although the BLM is coordinating with the Service to conserve 
San Bernardino kangaroo rat habitat, at this time we do not consider 
these lands to be managed for the benefit of the San Bernardino 
kangaroo rat or its PCEs; therefore, we are not proposing to exclude 
these lands from the final revised critical habitat designation.
    We are currently coordinating with the BLM, ACOE, San Bernardino 
Valley Conservation District, Cemex Construction Materials, Robertson's 
Ready Mix, and other local interests in an attempt to establish the 
Santa Ana River Wash Conservation Area. The objective of these 
discussions is to consolidate a large block of alluvial fan scrub 
occupied by three federally endangered species (the San Bernardino 
kangaroo rat, E. d. ssp. sanctorum, and Dodecahema leptoceras (slender-
horned spineflower)) and one federally threatened species (the coastal 
California gnatcatcher (Polioptila californica ssp. californica)). The 
area under consideration includes the majority of the Santa Ana wash 
from just downstream of the Seven Oaks Dam and the confluence of Mill 
Creek with the Santa Ana River, downstream to the City Creek 
confluence. The area is envisioned to include BLM's ACEC lands and the 
ACOE's preservation lands for E. d. ssp. sanctorum. This cooperative 
agreement, expected to be completed within the next 1 to 2 years, would 
reconfigure and consolidate sand and gravel mining operations in this 
unit to reduce adverse effects to these listed species and remaining 
alluvial sage scrub communities. While this effort is likely to benefit 
the San Bernardino kangaroo rat through the establishment of preserve 
lands that will be managed for the subspecies, the final configuration 
has not been completed. Therefore, we are not proposing to exclude any 
lands within the proposed Santa Ana River Wash Conservation Area from 
the final revised critical habitat designation.
    Approximately 268 ac (109 ha) of occupied habitat in the Santa Ana 
River wash has been set aside for conservation in perpetuity by the 
U.S. Air Force as part of on-base site remediation efforts at the 
former Norton Air Force Base (AFB) in San Bernardino, California. These 
areas are managed specifically for the San Bernardino kangaroo rat and 
E. d. ssp. sanctorum pursuant to the Former Norton Air Force Base 
Conservation Management Plan (CMP) completed in March 2002. We are 
proposing to exclude these 268 ac (109 ha) from the final revised 
critical habitat designation based on benefits provided to San 
Bernardino kangaroo rat habitat under the CMP (see Exclusions Under 
Section 4(b)(2) of the Act for a detailed discussion).

Unit 2: Lytle/Cajon Creek Wash

    Unit 2, which encompasses approximately 4,686 ac (1,896 ha) in San 
Bernardino County, includes the northern extent of this subspecies' 
remaining distribution. This unit contains habitat along and between 
Lytle and Cajon creeks from the Interstate 15 Bridge in Lytle Creek and 
the Kenwood Avenue Cajon Boulevard junction in Cajon Creek, downstream 
to Highland Avenue. Proposed Unit 2 was occupied at the time of 
listing, is currently occupied, and contains all of the PCEs (PCEs 1, 
2, and 3) essential to the survival and conservation of the San 
Bernardino kangaroo rat. Additionally, this unit includes some of the 
last remaining alluvial fans, flood plain terraces, historic braided 
river channels, and associated alluvial sage scrub and upland 
vegetation that provides habitat for the San Bernardino kangaroo rat in 
the Lytle/Cajon Creek wash. Proposed Unit 2 also contains the highest 
densities of San Bernardino kangaroo rat in the Lytle/Cajon wash. The 
PCEs within this unit may require special management considerations or 
protection to minimize impacts associated with flood control 
operations, water conservation projects, sand and gravel mining, and 
urban development.
    The hydro-geomorphological processes that apparently rejuvenate and 
maintain the dynamic mosaic of alluvial fan sage scrub are still 
largely intact in Lytle and Cajon creeks (i.e., stream flows are not 
impeded by dams or debris basins), and the remaining habitat allows 
dispersal between these two drainages, which is important for genetic 
exchange between populations (67 FR 19812, April 23, 2002). This unit 
is adjacent to large tracts of undeveloped land and contains upland 
areas occupied by the subspecies (PCEs 1, 2, and 3).
    Several areas in Unit 2 will be or are protected and being managed 
to some extent for the San Bernardino kangaroo rat. The Cajon Creek 
Habitat Conservation Management Area (HCMA) includes 1,378 ac (558 ha) 
to offset approximately 2,270 ac (920 ha) of sand and gravel mining 
proposed within and adjacent to Cajon Creek. Of the 1,378-ac (558-ha) 
Cajon Creek HCMA, approximately 610 ac (245 ha) is the Cajon Creek 
Conservation Bank established to help conserve populations of 24 
species associated with alluvial fan scrub including the San Bernardino 
kangaroo rat. Furthermore, the remaining 768 ac (311 ha) have been set 
aside as permanent conservation lands. These conservation lands will be 
managed in perpetuity for alluvial fan scrub habitat and associated 
listed species (including the San Bernardino kangaroo rat) pursuant to

[[Page 33818]]

the Habitat Enhancement and Management Plan (HEMP) (M. Blane and 
Associates 1996) and associated Memorandum of Understanding and 
Implementation Agreement for the Cajon Creek Habitat Management Area 
(MOU) (CalMat Co. 1996). According to the Service's GIS data based on 
information provided by Vulcan Materials, the footprint of the Cajon 
Creek HCMA is approximately 1,271 ac (514 ha). Thus, we are proposing 
to exclude these 1,271 ac (514 ha) from the final revised critical 
habitat designation based on benefits provided by the HEMP and MOU (see 
Exclusions Under Section 4(b)(2) of the Act for a detailed discussion). 
We may consider excluding the remaining 107 ac (43 ha) if we receive 
additional information during the public comment period that leads to a 
determination that the benefits of exclusion would outweigh the 
benefits of including these lands in our revised critical habitat 
designation.
    In 2003, the Service issued a biological opinion for the Lytle 
Creek North Master Planned Community, which falls within the boundary 
of existing San Bernardino kangaroo rat habitat (Service 2003a, FW-SB-
1640.11). The project includes an approximately 677 ac (274 ha) master 
planned community with over 2,400 residential units. Construction 
activities are proposed to be phased over an estimated 5 to 10 years.
    As an off-site measure for this project, the Lytle Creek 
Development Company will dedicate approximately 213 ac (86 ha) of 
largely undeveloped habitat within Lytle Creek (within proposed Unit 2) 
as a conservation area for the San Bernardino kangaroo rat. Forty acres 
(16 ha) of this lies within the floodplain and will be managed for the 
San Bernardino kangaroo rat in perpetuity (Service 2003a, p. 42). 
However, to date, no conservation easements or endowments have been 
secured for the lands proposed as conservation areas, and a long-term 
management plan has not yet been completed. Therefore, we are not 
proposing to exclude from the final revised designation the 213 ac (86 
ha) of conservation land that will be established as a result of this 
project. However, we may consider excluding these conservation lands 
from the final designation (under section 4(b)(2) of the Act) if we 
receive a finalized management plan that benefits this subspecies by 
the end of the public comment period.
    On June 15, 1999, we issued our biological opinion on the 
construction and extension of the north levee at Sunwest Materials' 
(now CEMEX) Lytle Creek Quarry (Service 1999, 1-6-99-F-42). The 
armored, engineered levee (over 10,000 feet (3,048 meters) in length) 
protects mining operations from flooding and replaces a shorter, 
earthen embankment (Service 1999, p. 3). As a conservation measure for 
this project, Sunwest Materials delivered to the California Department 
of Fish and Game a conservation easement deed to approximately 26 ac 
(11 ha) delineated as Conservation Area 1 to protect biological 
resources in perpetuity (Service 1999, p. 7). In addition, Sunwest 
Materials is to record a biological resource deed restriction on 
approximately 12 ac (5 ha) of land to permanently preclude activities 
that would interfere with habitat value (Service 1999, p. 8). However, 
since a management plan benefiting the San Bernardino kangaroo rat has 
not yet been developed for these lands we are not proposing to exclude 
these 38 ac (16 ha) from the final revised critical habitat 
designation. We may consider excluding these conservation lands from 
the final designation (under section 4(b)(2) of the Act) if we receive 
a finalized management plan that benefits this subspecies by the end of 
the public comment period.

Unit 3: San Jacinto River Wash

    Unit 3 encompasses approximately 769 ac (311 ha) in Riverside 
County and includes areas along the San Jacinto River in the vicinity 
of San Jacinto, Hemet, and Valle Vista. This unit, which represents the 
southern extent of the currently known distribution of the subspecies, 
encompasses the San Jacinto River wash from the Blackburn Road/Lake 
Hemet Main Canal area, downstream to the East Main Street Bridge. This 
unit includes all of the PCEs (PCEs 1, 2, and 3) essential to the 
conservation of the San Bernardino kangaroo rat, was occupied at the 
time of listing, and is currently occupied. Additionally, this unit 
contains one of only three extant populations of San Bernardino 
kangaroo rat and is the only population in Riverside County. 
Historically, the San Bernardino kangaroo rat has occurred along the 
San Jacinto River from the upper reach of habitat in the river 
downstream past State Route 79. In Bautista Creek, the subspecies has 
occurred upstream of the Bautista flood control basin until the 
topography of the canyon becomes too steep. The PCEs within this unit 
may require special management considerations or protection to minimize 
impacts associated with flood control operations, channelization, water 
conservation projects (groundwater recharge ponds), off-road activity, 
and urban development.
    Lands within Unit 3 are adjacent to lands of the Soboba Band of 
Luise[ntilde]o Indians Reservation. We are not proposing these lands as 
critical habitat for the San Bernardino kangaroo rat (see Government-
to-Government Relationship with Tribes section for a detailed 
discussion).
    At the confluence of the San Jacinto River and Bautista Creek, the 
Eastern Municipal Water District (EMWD) will implement an integrated 
water recharge and recovery program that includes the construction of 
recharge basins and well sites. The Service issued a biological opinion 
for this project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5). 
The project will impact approximately 35 ac (14 ha) of land within the 
floodplain and 2 ac (0.8 ha) of upland habitat (Service 2006, p. 21) 
adjacent to proposed revised critical habitat Unit 3. These impact 
areas, totaling approximately 37 ac (15 ha), are within the currently 
designated critical habitat but are not proposed as revised critical 
habitat because they have been addressed by the section 7 consultation 
and biological opinion, which found that the action did not adversely 
modify the currently designated critical habitat. However, the habitat 
will be permanently lost through the action, and to offset that loss of 
occupied habitat for the San Bernardino kangaroo rat, EMWD will protect 
and manage approximately 117 ac (47 ha) of land in three separate 
conservation areas along the San Jacinto River (Service 2006, p. 22). 
EMWD will preserve these lands in the form of a conservation easement 
and develop a management plan to be implemented in perpetuity to 
provide for the long-term conservation of the San Bernardino kangaroo 
rat (Service 2006, pp. 6-7). These conservation areas will combine with 
an existing parcel of conservation land (16 ac (6 ha)) set aside under 
a previous biological opinion of a seasonal storage and recovery 
project proposed by EMWD (Service 2000b, FWS-WRIV-1045.1). We may 
consider excluding any or all portions of these 133 ac (54 ha) of 
conservation lands addressed through these two section 7 consultations 
and issued biological opinions from the final revised designation 
(under section 4(b)(2) of the Act) if we receive finalized management 
plans that benefit this subspecies by the end of the public comment 
period.
    All private lands proposed as revised critical habitat in the San 
Jacinto River wash fall within the boundaries of the Western Riverside 
County Multiple Species Habitat Conservation Plan (MSHCP). Therefore, 
we are proposing

[[Page 33819]]

to exclude private lands under the jurisdiction of permittees to the 
MSHCP and all lands owned and managed by permittees to the MSHCP within 
this area (263 ac (106 ha)) based on the benefits provided to the San 
Bernardino kangaroo rat by the Western Riverside County MSHCP (see 
Exclusions Under Section 4(b)(2) of the Act for a detailed discussion).

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.02, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to, alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' However, recent decisions by the 5th and 9th Circuit 
Court of Appeals have invalidated this definition (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory 
definition when analyzing whether an action is likely to destroy or 
adversely modify critical habitat. Pursuant to current national policy 
and the statutory provisions of the Act, destruction or adverse 
modification is determined on the basis of whether, with implementation 
of the proposed Federal action, the affected critical habitat would 
remain functional (or retain the current ability for the PCEs to be 
functionally established) to serve the intended conservation role for 
the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. This is a procedural requirement only. 
However, once a proposed species becomes listed, or proposed critical 
habitat is designated as final, the full prohibitions of section 
7(a)(2) apply to any Federal action. The primary utility of such 
conference procedures is to maximize the opportunity for a Federal 
agency to adequately consider proposed species and critical habitat and 
avoid potential delays in implementing their proposed action because of 
the section 7(a)(2) compliance process, should those species be listed 
or the critical habitat designated.
    Under conference procedures, the Service may provide advisory 
conservation recommendations to assist the agency in eliminating 
conflicts that may be caused by the proposed action. The Service may 
conduct either informal or formal conferences. Informal conferences are 
typically used if the proposed action is not likely to have any adverse 
effects to the proposed species or proposed critical habitat. Formal 
conferences are typically used when the Federal agency or the Service 
believes the proposed action is likely to cause adverse effects to 
proposed species or critical habitat, inclusive of those that may cause 
jeopardy or adverse modification.
    The results of an informal conference are typically transmitted in 
a conference report, while the results of a formal conference are 
typically transmitted in a conference opinion. Conference opinions on 
proposed critical habitat are typically prepared according to 50 CFR 
402.14, as if the proposed critical habitat were designated. We may 
adopt the conference opinion as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). As noted above, any conservation recommendations in a 
conference report or opinion are strictly advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
compliance with the requirements of section 7(a)(2) will be documented 
through the Service's issuance of: (1) A concurrence letter for Federal 
actions that may affect, but are not likely to adversely affect, listed 
species or critical habitat; or (2) a biological opinion for Federal 
actions that are likely to adversely affect listed species or critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in jeopardy to a listed species or the destruction or 
adverse modification of critical habitat, we also provide reasonable 
and prudent alternatives to the project, if any are identifiable. 
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as 
alternative actions identified during consultation that can be 
implemented in a manner consistent with the intended purpose of the 
action, that are consistent with the scope of the Federal agency's 
legal authority and jurisdiction, that are economically and 
technologically feasible, and that the Director believes would avoid 
jeopardy to the listed species or destruction or adverse modification 
of critical habitat. Reasonable and prudent alternatives can vary from 
slight project modifications to extensive redesign or relocation of the 
project. Costs associated with implementing a reasonable and prudent 
alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action or such discretionary 
involvement or control is authorized by law. Consequently, some Federal 
agencies may request reinitiation of consultation with us on actions 
for which formal consultation has been completed, if those actions may 
affect subsequently listed species or designated critical habitat or 
adversely modify or destroy proposed critical habitat.
    Federal activities that may affect the San Bernardino kangaroo rat 
or its designated critical habitat will require section 7 consultation 
under the Act. Activities on State, Tribal, local, or private lands 
requiring a Federal permit (such as a permit from the ACOE under 
section 404 of the Clean Water Act or a permit under section 
10(a)(1)(B) of the Act from the Service) or involving some other 
Federal action (such as funding from the Federal Highway 
Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) will also be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local, or private lands 
that are not

[[Page 33820]]

federally funded, authorized, or permitted, do not require section 7 
consultations.

Application of the Jeopardy and Adverse Modification Standards for 
Actions Involving Effects to the San Bernardino Kangaroo Rat and Its 
Critical Habitat

Jeopardy Standard

    The Service has applied an analytical framework for San Bernardino 
kangaroo rat jeopardy analyses, which relies heavily on the importance 
of core area populations to the survival and recovery of the 
subspecies. This section 7(a)(2) analysis is focused not only on these 
populations but also on the habitat conditions necessary to support 
them.
    The jeopardy analysis usually expresses the survival and recovery 
needs of the San Bernardino kangaroo rat in a qualitative fashion 
without making distinctions between what is necessary for survival and 
what is necessary for recovery. Generally, if a proposed Federal action 
is incompatible with the viability of the affected core area 
population(s), inclusive of associated habitat conditions, a jeopardy 
finding is warranted because of the relationship of each core area 
population to the survival and recovery of the species as a whole.

Adverse Modification Standard

    For the reasons described in the Director's December 9, 2004 
memorandum, the key factor related to the adverse modification 
determination is whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional (or 
retain the current ability for the PCEs to be functionally established) 
to serve its intended conservation role for the species. Generally, the 
conservation role of San Bernardino kangaroo rat critical habitat units 
is to support viable core area populations.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the species.
    Activities that may destroy or adversely modify critical habitat 
are those that alter the PCEs to an extent that the conservation value 
of critical habitat for the San Bernardino kangaroo rat is appreciably 
reduced. Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for the San Bernardino kangaroo rat include, but are 
not limited to:
    (1) Actions that would result in loss or fragmentation of suitable 
habitat. Such activities could include, but are not limited to: Urban 
and industrial development; sand and gravel mining; off-road activity; 
and, groundwater recharge operations. These activities could eliminate 
or reduce habitat necessary for the growth and reproduction of the San 
Bernardino kangaroo rat. Resulting fragmentation could isolate 
populations, increasing risk of stochastic extinction and decreasing 
movement between remaining patches of suitable habitat.
    (2) Actions that would alter natural hydrological and 
geomorphological processes necessary to maintain alluvial sage scrub 
habitat. Such activities could include, but are not limited to: Channel 
alteration; flood control operations; and construction of flood control 
structures such as dams, levees, and detention basins. These activities 
could eliminate or reduce preferred habitat conditions for the growth 
and reproduction of the San Bernardino kangaroo rat. Periodic high 
flows and flood events provide sediment scour, sediment deposition, and 
thinning of vegetation which maintains alluvial sage scrub habitat.
    (3) Actions that would appreciably decrease habitat value or 
quality through indirect and edge effects. Such activities could 
include, but are not limited to: Urban, industrial, and agricultural 
development; and construction of roads and railways. These activities 
could have indirect effects that reduce preferred habitat conditions 
and could lead to increases in human activity, increased light levels 
during nighttime foraging, increased predation by domestic and feral 
animals associated with residential development, invasion of exotic 
plants, and otherwise eliminate or reduce preferred habitat conditions 
for the San Bernardino kangaroo rat. Measures to minimize the impacts 
of these activities to the species and its habitat could include the 
installation of fencing to decrease predation by domestic and feral 
animals, placement of lighting structures (e.g. street lights) such 
that the light is directed away from habitat, and the installation of 
best management practices to reduce the amount of water entering 
habitat due to sheet flow.
    We consider all of the units proposed as revised critical habitat, 
as well as those that have been proposed for exclusion, to be within 
the geographical range of the subspecies occupied at the time of 
listing, and to contain features essential to the conservation of the 
San Bernardino kangaroo rat. Federal agencies already consult with us 
on activities in areas currently occupied by the San Bernardino 
kangaroo rat, or if the subspecies may be affected by the action, to 
ensure that their actions do not jeopardize the continued existence of 
the San Bernardino kangaroo rat.

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

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact, of specifying any 
particular area as critical habitat. The Secretary may exclude an area 
from critical habitat if 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 legislative history 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 have considered. In addition, the Service is 
conducting an economic analysis of the impacts of the proposed revised 
critical habitat designation and related factors, which will be 
available for public review and comment. Based on public comment on 
that document, the proposed revised designation itself, and the 
information in the final economic analysis, additional areas beyond 
those identified in this assessment may be excluded from critical 
habitat by the Secretary under the provisions of section 4(b)(2) of the 
Act. This is provided for in the Act and in our implementing 
regulations at 50 CFR 424.19.

[[Page 33821]]

Benefits of Designating Critical Habitat

Educational Benefits

    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 San Bernardino kangaroo rat. In general, the educational 
benefit of a critical habitat designation always exists, although in 
some cases it may be redundant with other educational effects. For 
example, HCPs have significant public input and may largely duplicate 
the educational benefit of a critical habitat designation. This benefit 
is closely related to a second, more indirect benefit: that designation 
of critical habitat would inform State agencies and local governments 
about areas that could be conserved under State laws or local 
ordinances.
    However, we believe that there would be little additional 
informational benefit gained from the designation of critical habitat 
for the exclusions we are proposing in this rule because these areas 
are included in this proposed rule as having habitat containing the 
features essential to the conservation of the subspecies. Consequently, 
we believe that the informational benefits are already provided, even 
though these areas may not be designated as critical habitat. 
Additionally, the purpose normally served by the designation, that of 
informing State agencies and local governments about areas that would 
benefit from protection and enhancement of habitat for the San 
Bernardino kangaroo rat, is already well established among State and 
local governments, and Federal agencies in those areas that we are 
proposing to exclude from revised critical habitat in this rule on the 
basis of other existing habitat management protections.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat.

Recovery Benefits

    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species which may require special management considerations or 
protection. In identifying those lands, the Service must consider the 
recovery needs of the species, such that the habitat that is 
identified, 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(a)(2) of 
the Act to ensure that their actions will not adversely modify 
designated critical habitat or jeopardize the continued existence of 
the species. As noted 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.
    The identification of those lands which are necessary for the 
conservation of the species and can, if managed, provide for the 
recovery of a species is beneficial. 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 land owners 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.
    However, the designation of critical habitat does not require that 
any management or recovery actions take place on the lands included in 
the designation. Even in cases where consultation has been initiated 
under section 7(a)(2) of the Act, the end result of consultation is to 
avoid jeopardy to the species and/or adverse modification of its 
critical habitat, but not per se to manage remaining lands or institute 
recovery actions on remaining lands. Conversely, management plans 
institute proactive actions over the lands they encompass and are put 
in place to remove or reduce known threats to a species or its habitat 
and therefore implement recovery actions. We believe that the 
conservation of a species and/or its habitat that could be achieved 
through the designation of critical habitat, in some cases, is less 
than the conservation that could be achieved through the implementation 
of a management plan, which includes species specific provisions and 
considers enhancement or recovery of listed species as the management 
standard over the same lands. Consequently, implementation of 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.

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. Conservation agreements with non-Federal 
landowners (HCPs, safe harbor agreements, other conservation 
agreements, easements, and State and local regulations) enhance species 
conservation by extending species protections beyond those

[[Page 33822]]

available through section 7 consultations. In the past decade, we have 
encouraged non-Federal landowners to enter into conservation 
agreements, based on a view that we can achieve greater species 
conservation on non-Federal land through such partnerships than we can 
through regulatory methods (61 FR 63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of encouraging endangered species to their property, and 
there is mounting evidence that some regulatory actions by the Federal 
government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor 
endangered species represents a risk to future economic opportunities 
(Main et al. 1999; Brook et al. 2003). 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, and 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.
    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. Thus 
the benefits of excluding areas that are covered by partnerships or 
voluntary conservation efforts can often be high.

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(a)(2) 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(a)(2) 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 PCEs, 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 
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 conflated the jeopardy 
standard with the standard for destruction or adverse modification of 
critical habitat when evaluating Federal actions that affect currently-
occupied critical habitat. 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, as discussed 
above, we believe the conservation achieved through implementing 
habitat conservation plans (HCPs) or other habitat management plans is 
typically greater than would be achieved through multiple site-by-site, 
project-by-project, section 7(a)(2) consultations involving 
consideration of critical habitat.
    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, and counties 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 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 these 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

[[Page 33823]]

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, 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. 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 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 Planning 
(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(a)(2) 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 all the 
discussions below that discuss 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, we are 
proposing to exclude the following areas of habitat from final revised 
critical habitat for the San Bernardino kangaroo rat: lands covered 
under the Woolly-Star Preserve Area Management Plans; the Former Norton 
Air Force Base CMP; the Cajon Creek Habitat Conservation Management 
Area HEMP; and Western Riverside MSHCP. We believe that these lands' 
value for conservation has been addressed by existing protective 
actions and are appropriate for exclusion under the provisions of 
section 4(b)(2). We specifically solicit comment, however, on the 
proposed exclusion of these areas. 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 and 
Approved Management Plans -- 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(a)(2) 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 plans described below fulfill these criteria, and 
we are considering the exclusion of non-federal lands covered by these 
plans that provide for the conservation of the San Bernardino kangaroo 
rat. We are requesting comments on the benefit to the San Bernardino 
kangaroo rat from conservation measures established by the following 
plans: the Woolly-Star Preserve Area Management Plans; the Former 
Norton Air Force Base CMP; the Cajon Creek Habitat Conservation 
Management Area HEMP; and the Western Riverside MSHCP.

Woolly-Star Preserve Area Management Plans

    Approximately 742 ac (300 ha) of the 765 ac (310 ha) Wooly-star 
Preserve Area (WSPA) is within critical habitat Unit 1. The WSPA is 
within the 100 to 500-year floodplain of the upper Santa Ana River 
immediately downstream from the Seven Oaks Dam. The WSPA was 
established in 1988 by the Army Corps of Engineers (ACOE) as part of 
the conservation measures developed during consultation to address 
impacts to the federally endangered Eriastrum densifolium ssp. 
sanctorum (Santa Ana River woolly-star) as a result of construction of 
the Seven Oaks Dam (Service File: 1-6-88-F-6, June 22, 1989).
    A management plan for Eriastrum densifolium ssp. sanctorum (which 
requires alluvial scrub habitat similar to that preferred by the San 
Bernardino kangaroo rat) was prepared in coordination with the Service 
and California Department of Fish and Game (CDFG) (Chambers Group, Inc. 
1993). The 1993 Management Plan for the Santa Ana River Woolly-Star was 
created to be implemented on the 765-ac (310-ha) WSPA (Chambers Group, 
Inc. 1993). This plant inhabits early and intermediate successional 
stages of alluvial fan scrub habitat, which are the preferred habitat 
areas for the San Bernardino kangaroo rat. The overall strategy for the 
management plan on WSPA lands is to avoid physical disturbances to 
alluvial habitat and to allow for disturbances by natural processes 
(Chambers Group, Inc. 1993, p. 3-1). The 1993 Management Plan for E. d. 
ssp. sanctorum includes a description of management tasks that benefit 
habitat for E. d. ssp. sanctorum. Though not addressed directly by the 
plan, these management tasks benefit the San Bernardino kangaroo rat as 
well. These management tasks include: identification and implementation 
of habitat renewal methods; control of exotic species; reduction of 
off-highway vehicle activity, trash dumping, and other negative human 
impacts; and a public awareness program (Chambers Group, Inc. 1993, p. 
3-2). Lands within the WSPA were placed under a conservation easement 
that is jointly held by the local sponsors (i.e., the flood control 
districts of San Bernardino, Riverside and Orange counties) (Lovell 
2007). Since the inception of the 1993 Management Plan for the Santa 
Ana River Woolly-Star, on-going biological studies have been conducted 
on the WSPA to increase understanding of E. d. ssp. Sanctorum.
    The ACOE has committed to the development and implementation of a 
Multi-species Habitat Management Plan (MSHMP) for the WSPA that will 
update the 1993 plan and include habitat management for the San 
Bernardino kangaroo rat and the federally endangered slender-horned 
spineflower (Dodecahema leptoceras) as part of the conservation 
measures they proposed during consultation regarding the effects of 
operation and maintenance of the dam on the E. d. ssp. sanctorum, D. 
leptoceras. The goals of the draft MSHMP specific to the San Bernardino 
kangaroo rat include: (1) The maintenance and/or expansion of the 
current species distribution within the

[[Page 33824]]

WSPA; (2) optimization of habitat conditions; and, (3) maintenance and/
or enhancement of populations of San Bernardino kangaroo rat within the 
WSPA. General objectives in support of the San Bernardino kangaroo rat 
management goals are to: (1) Monitor the San Bernardino kangaroo rat 
and relevant habitat elements according to standardized protocols; (2) 
conduct studies to fill gaps in knowledge related to species biology 
and habitat; (3) measure San Bernardino kangaroo rat response to 
experimental treatments and potential management measures; (4) 
establish priority of areas for implementation of habitat management to 
maintain and/or enhance suitability for the species; and (5) refine 
management measures over time using an adaptive management framework. 
Information gathered through the implementation of the MSHMP will be 
used to support science-based management decisions and evaluation of 
management success. Various potential management alternatives may be 
implemented such as protective management, disturbance control, 
nonnative grass control, habitat enhancement/restoration, and habitat 
renewal. The management of this area is anticipated to help to maintain 
and protect alluvial wash and upland habitat (PCEs 1, 2, and 3) 
required by the San Bernardino kangaroo rat. This MSHMP is currently in 
draft form and will replace the 1993 management plan. The MSHMP will be 
reviewed by the resource agencies for their concurrence prior to 
implementation (Service 2002b, p. 8). The ACOE is responsible for the 
development and implementation of the MSHMP.
    Protocol surveys (live-trapping) conducted during 2005 and 2006 
confirm that portions of the WSPA are currently occupied by the San 
Bernardino kangaroo rat (Service unpublished GIS data), and habitat 
surveys suggest that much of this area is likely to support the San 
Bernardino kangaroo rat (MEC Analytical Systems, Inc. 2000, fig. 24). 
Ongoing surveys and habitat management to benefit the San Bernardino 
kangaroo rat are anticipated as part of the MSHCP currently in 
development. The Service is working with the ACOE and their biological 
consultants on baseline species surveys, trials of habitat 
manipulations and management practices followed by trapping surveys to 
show both density and distribution of the San Bernardino kangaroo rat 
within the WSPA. These actions are being undertaken as part of the 
development of a final MSHMP.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified habitat loss, destruction, degradation, and fragmentation 
due to sand and gravel mining operations, flood control projects, and 
urban development as primary threats to the San Bernardino kangaroo 
rat. As described above, the WSPA Management Plans provide enhancement 
of the habitat by removing or reducing threats to this subspecies and 
the PCEs. The WSPA Management Plans preserve habitat that supports 
identified core populations of this subspecies and therefore provide 
for recovery.

Benefits of Inclusion

    We believe there would be minimal benefit in retaining this area as 
critical habitat for the San Bernardino kangaroo rat in the Woolly-Star 
Preserve Area within Unit 1 because this habitat within the Santa Ana 
River wash is already conserved and is being managed for the benefit of 
the species as explained above.
    The primary benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
which directs Federal agencies to ensure that actions they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of a threatened or endangered species, and do not result in the 
destruction or adverse modification of critical habitat. However, the 
inclusion of these 742 ac (300 ha) WSPA lands in the revised critical 
habitat designation for the San Bernardino kangaroo rat would be 
unlikely to provide any additional protection for the species since the 
protection provided would be a limitation on the adverse effects that 
occur, as opposed to a requirement to provide a conservation benefit. 
The conservation measures for the San Bernardino kangaroo rat included 
in the WSPA Management Plans are affirmative obligations that provide a 
conservation benefit to the subspecies. We anticipate that these 
conservation measures will exceed any conservation value provided as a 
result of regulatory protections that have been or may be afforded 
through critical habitat designation.
    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 the San Bernardino kangaroo rat and its 
habitat. However, by publication of this proposed rule, we are 
educating the public of the location of core populations and areas most 
important for the recovery of this subspecies. Furthermore, as 
discussed above, the importance of protecting the biological resource 
values of these lands, including the San Bernardino kangaroo rat, has 
already been clearly and effectively communicated to Federal, State, 
and local agencies and other interested organizations and members of 
the public through the current critical habitat designation, this 
proposed rule, and the WSPA Management Plans' approval and 
implementation process.
    In short, we expect the Woolly-Star Preserve Area Management Plans 
to provide protection to and management of the San Bernardino kangaroo 
rat and its PCEs within areas considered essential for conservation of 
the subspecies on WSPA lands in the Santa Ana River wash area. We 
expect the WSPA Management Plans to provide a greater level of 
conservation for the San Bernardino kangaroo rat on lands in this area 
than retaining the lands as critical habitat.

Benefits of Exclusion

    In contrast to section 7(a)(2) of the Act, the WSPA Management 
Plans commit the local sponsors of the WSPA to manage these lands for 
the benefit of the San Bernardino kangaroo rat and other covered 
species. These commitments go well beyond a simple requirement to avoid 
adverse modification of critical habitat; they involve conservation and 
management of land within Unit 1 located in the WSPA (Service 2004, p. 
296). Excluding these 742 ac (300 ha) of lands from critical habitat 
designation would help strengthen partnerships and recognize the ACOE 
and local sponsors' commitment under the 1993 Management Plan for 
Eriastrum densifolium ssp. sanctorum and the MSHMP to manage WSPA lands 
for the San Bernardino kangaroo rat consistent with the conservation 
goals and objectives of these plans.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion of 
approximately 742 ac (300 ha) of lands within the WSPA covered under 
the 1993 Management Plan for Eriastrum densifolium ssp. sanctorum and 
to be covered under the MSHMP. We have determined that the benefits of 
excluding these lands in Unit 1 outweigh the benefits of retaining 
these lands as critical habitat. The PCEs required by the San 
Bernardino kangaroo rat will benefit from the implementation of 
conservation measures outlined in these plans. In summary, these 
conservation measures include avoidance and minimization of

[[Page 33825]]

physical disturbances to alluvial habitat and allowance for 
disturbances by natural processes within the WSPA lands, which are 
under existing conservation easements that benefit the San Bernardino 
kangaroo rat. This will benefit the San Bernardino kangaroo rat by 
preserving soil, vegetation, and upland habitat (PCEs 1, 2, and 3) 
within the WSPA. Such specific conservation actions and management for 
the San Bernardino kangaroo rat and its PCEs exceed any conservation 
value provided as a result of regulatory protections that have been or 
may be afforded through critical habitat designation.
    The exclusion of these lands from critical habitat would also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents during dedication of the WSPA and 
development of the management plans. The benefits of excluding these 
lands from revised critical habitat outweigh the minimal benefits of 
retaining these lands as critical habitat, including the educational 
benefits of critical habitat designation through informing the public 
of areas important for the long-term conservation of the San Bernardino 
kangaroo rat. Such educational benefits can still be accomplished 
through materials provided on our Web site. Further, many educational 
benefits will be achieved through this proposal's notice and public 
comment period, which will occur whether or not this particular area is 
designated.

Exclusion Will Not Result in Extinction of the Subspecies

    We do not believe that the exclusion of 742 ac (300 ha) from the 
final revised designation of critical habitat for the San Bernardino 
kangaroo rat would result in the extinction of the subspecies because 
the WSPA Management Plans provide for the conservation of the 
subspecies and its PCEs on occupied areas in Unit 1 (Santa Ana River). 
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 subspecies will not go extinct. The 
protections afforded to the San Bernardino kangaroo rat under the 
jeopardy standard will remain in place for the areas proposed for 
exclusion from revised critical habitat.

Former Norton Air Force Base Conservation Management Plan (CMP)

    The Norton Air Force Base was formally transferred to private 
ownership in 2003. Prior to closure, the U.S. Air Force completed 
installation remediation which included the closure of an area known as 
``Landfill 2.'' In accordance with mitigation measures outlined in our 
November 26, 1996, biological opinion (1-6-96-F-10) on the closure of 
Landfill 2, the U.S. Air Force developed a management plan (the Former 
Norton Air Force Base Conservation Management Plan (CMP), completed in 
2002) for approximately 268 ac (109 ha) of habitat occupied by the San 
Bernardino kangaroo rat in the Santa Ana River wash area (Unit 1). 
Approximately 54 ac (22 ha) in two parcels were designated Core 
Management Areas (CMA-1 and CMA-2), and 214 ac (87 ha) make up an Open 
Space Management Area (OSMA). Under the CMP completed in March 2002, 
these areas are managed specifically for the San Bernardino kangaroo 
rat and E. d. ssp. sanctorum (U.S. Air Force 2002, pp. 1-4).
    CMA-1 (approximately 29 ac (12 ha)) and CMA-2 (approximately 25 ac 
(10 ha)) are located along the southern edge of the OSMA. CMA-1 
includes both flood plain habitat on the `wet' side of an existing 
flood control levee and fenced upland habitat behind the levee along 
the northern edge of the Santa Ana River. CMA-2 is located entirely 
within the Santa Ana River floodplain. Approximately 13 ac (5 ha) of 
CMA-2 are owned by the Inland Valley Development Agency (IVDA) and the 
remainder of the CMA lands and the OSMA are owned by the San Bernardino 
International Airport (SBIA) Authority. These areas provide important 
upland habitat that supports individual San Bernardino kangaroo rats 
necessary to re-populate the active floodplain following large-scale 
floods that scour out lower-elevation terrace habitat adjacent to the 
active river channel (Service 2003b, p. 18) (PCE 3). Lands within these 
CMAs are to be permanently protected by conservation easements (U.S. 
Air Force 2002). The CMAs are adjacent to the approximately 214-ac (87 
ha) OSMA that surrounds the existing runway of the SBIA.
    The OSMA is an aircraft over-run area and is managed in accordance 
to Federal Aviation Administration (FAA) guidelines for such lands. 
However, the SBIA Authority manages the OSMA in such a way as to 
minimize adverse impacts to the San Bernardino kangaroo rat as 
described in the CMP and the biological opinion for formal consultation 
on base closure (FWS-SB-1723.10, August 5, 2003). The 214 ac (87 ha) 
OSMA is in the immediate vicinity of the eastern runway, and safety 
regulations require that most of this land remain undeveloped (U.S. Air 
Force 2002, p. 5-5). The OSMA is protected from flooding by levees, but 
routine mowing required by the Federal Aviation Administration (FAA) 
keeps vegetation from becoming dense and senescent, which creates open 
habitat that may be suitable for San Bernardino kangaroo rats (Service 
2003b, p. 17). No discing or other ground disturbance is allowed within 
the OSMA area and implementation of the prescribed mowing regime with 
the equipment currently used is unlikely to result in crushing of San 
Bernardino kangaroo rat burrows (Service 2003b, p. 18).
    Upon closure of the Former Norton Air Force Base in 2003, the SBIA 
Authority and the Inland Valley Development Agency assumed 
responsibility for the management of the CMAs pursuant to the CMP 
(Service 2003b, p. 6). Management practices currently conducted on SBIA 
and IVDA property are described in the CMP and include: (1) Subspecies 
monitoring every 2 to 3 years following the Service-approved protocol; 
(2) vegetation surveys and adaptive control of invasive weedy plants; 
(3) trash removal; and (4) installation of protective signage and 
maintenance of barriers to reduce and prevent trespassing (U.S. Air 
Force 2002, pp. 5-11). In accordance with the CMP, the SBIA Authority 
provides us with annual reports regarding the status of the CMP and 
OSMA (documents on file in the CFWO). The SBIA Authority has routinely 
removed exotic or weedy plant species within the CMAs, controlled 
coyote access to fenced portions of CMA-1 and the OSMA which reduces 
predation on the San Bernardino kangaroo rat in these areas, removed 
all dumped trash as soon as possible in accordance with the CMP and FAA 
guidelines, and promptly addressed any trespass issues as needed (e.g., 
fences and signage repaired). Human activities incompatible with the 
purpose of the CMAs are restricted (U.S. Air Force 2002, pp. 5-12). 
These management actions and the eventual placement of a conservation 
easement on the CMA parcels are anticipated to ensure that habitat 
containing the PCEs for the San Bernardino kangaroo rat is conserved 
within the CMAs and the OSMA through the protection and management of 
alluvial washes and upland habitat (PCEs 1, 2, and 3) required by the 
subspecies.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified habitat loss, destruction, degradation, and fragmentation 
due to sand and gravel mining operations, flood control projects, and 
urban development as primary threats to the San Bernardino kangaroo 
rat. As described above, the Former Norton Air Force Base CMP provides 
enhancement of the habitat by

[[Page 33826]]

removing or reducing threats to this subspecies and the PCEs. The CMP 
preserves habitat that supports identified core populations of this 
subspecies and therefore provides for recovery.

Benefits of Inclusion

    We believe there would be minimal benefit in retaining this area as 
critical habitat for the San Bernardino kangaroo rat on the 268 ac (109 
ha) of critical habitat lands on the San Bernardino International 
Airport. These lands within Unit 1 (Santa Ana River) are already 
conserved and managed for the benefit of the subspecies as explained 
above. The primary benefit of including an area within a critical 
habitat designation is the protection provided by section 7(a)(2) of 
the Act, which directs Federal agencies to ensure that actions they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of a threatened or endangered species, and do not 
result in the destruction or adverse modification of critical habitat. 
However, the inclusion of these 268 ac (109 ha) of CMA and OSMA lands 
in the revised critical habitat designation for the San Bernardino 
kangaroo rat would be unlikely to provide any additional protection for 
the species since the protection provided would be a limitation on the 
adverse effects that occur, as opposed to a requirement to provide a 
conservation benefit. The conservation measures for the San Bernardino 
kangaroo rat included in the Former Norton Air Force Base CMP are 
affirmative obligations that provide a conservation benefit to the 
species. We anticipate that these conservation measures will exceed any 
conservation value provided as a result of regulatory protections that 
have been or may be afforded through critical habitat designation.
    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, as a means 
to encourage conservation efforts to benefit the San Bernardino 
kangaroo rat and its habitat. However, by publication of this proposed 
rule, we are educating the public of the location of core populations 
and areas most important for the recovery of this subspecies. 
Furthermore, as discussed above, the importance of protecting the 
biological resource values of these lands, including the San Bernardino 
kangaroo rat, has already been clearly and effectively communicated to 
Federal, State, and local agencies, as well as other interested 
organizations and members of the public through the current 
designation, this proposed rule, and the CMP's approval and 
implementation process.
    In short, we expect the Former Norton Air Force Base CMP to provide 
protection to and management of the San Bernardino kangaroo rat and its 
PCEs within areas considered essential for conservation of the 
subspecies on private lands in the Santa Ana River area. We expect the 
CMP to provide a greater level of conservation for the San Bernardino 
kangaroo rat on private lands in this area than retaining the lands as 
critical habitat.

Benefits of Exclusion

    In contrast to section 7(a)(2) of the Act, the Former Norton Air 
Force Base CMP commits the owners of the land (currently the SBIA 
Authority) to manage 268 ac (109 ha) of land for the benefit of the San 
Bernardino kangaroo rat and other covered species. These commitments go 
well beyond a simple requirement to avoid adverse modification of 
critical habitat; they involve protection, management, and enhancement 
of the identified land within Unit 1. Excluding these 268 ac (109 ha) 
of lands from critical habitat designation would help strengthen 
partnerships and recognize the former Norton Air Force Base and SBIA 
Authority's commitment under the CMP to manage CMA and OSMA lands 
consistent with the conservation goals and objectives of the CMP as 
described above.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion of 
approximately 268 ac (109 ha) of lands within the Former Norton Air 
Force Base CMP area from the revised designation of critical habitat. 
We have determined that the benefits of excluding these lands in Unit 1 
outweigh the benefits of retaining these lands as critical habitat. The 
PCEs required by the San Bernardino kangaroo rat will benefit from the 
implementation of conservation measures outlined in the CMP. In 
summary, these conservation measures include: the establishment of 
approximately 54 ac (23 ha) of CMA lands into a permanent conservation 
easement; San Bernardino kangaroo rat monitoring; control of invasive 
plant species; trash removal; installation of protective signage; and 
exclusion of harmful human activities within the CMAs. Additionally, 
conservation measures within the 214 ac (87 ha) OMSA include 
implementation of a mowing regime to thin vegetation and prevention of 
soil disturbances. Such specific conservation actions and management 
for the San Bernardino kangaroo rat and its PCEs exceed any 
conservation value provided as a result of regulatory protections that 
have been or may be afforded through critical habitat designation.
    The exclusion of these lands from critical habitat would also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents during the closure of Landfill 2 
on Norton Air Force Base and development of the CMP. The benefits of 
excluding these lands from revised critical habitat outweigh the 
minimal benefits of retaining these lands as critical habitat, 
including the educational benefits of critical habitat designation 
through informing the public of areas important for the long-term 
conservation of the San Bernardino kangaroo rat. Such educational 
benefits can still be accomplished through materials provided on our 
Web site. Further, many educational benefits will be achieved through 
this proposal's notice and public comment period, which will occur 
whether or not this particular area is designated.

Exclusion Will Not Result in Extinction of the Subspecies

    We do not believe that the exclusion of 268 ac (109 ha) from the 
final revised designation of critical habitat for the San Bernardino 
kangaroo rat would result in the extinction of the subspecies because 
the Former Norton Air Force Base CMP provides for the conservation of 
this subspecies and its PCEs on occupied areas in Unit 1 (Santa Ana 
River). 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 subspecies will not go extinct. The 
protections afforded to the San Bernardino kangaroo rat under the 
jeopardy standard will remain in place for the areas proposed for 
exclusion from revised critical habitat.

Cajon Creek Habitat Conservation Management Area, Habitat Enhancement 
and Management Plan (HEMP)

    The Cajon Creek Habitat Conservation Management Area (HCMA), 
managed by Vulcan Materials Company (formerly CalMat Co.), Western 
Division, was created in 1996 to offset approximately 2,270 ac (920 ha) 
of sand and gravel mining proposed within and adjacent to Cajon Creek. 
The HCMA includes approximately 1,378 ac (558 ha) of lands, which are 
managed to protect or restore alluvial scrub habitat within the

[[Page 33827]]

100-year flood plain to help conserve populations of 24 species 
associated with alluvial fan scrub including the San Bernardino 
kangaroo rat. Pioneer, intermediate, and mature phase alluvial scrub 
habitats can be found in the Cajon Creek HCMA, along with all three of 
the PCEs required by the San Bernardino kangaroo rat (M. Blane and 
Associates 1996, p. 11).
    Of these HCMA lands, 768 ac (311 ha) were set aside to offset 
impacts from the proposed mining to alluvial fan sage scrub habitat and 
associated listed species including the San Bernardino kangaroo rat 
(Service 1998c, p. 2) and the 610-acre Cajon Creek Conservation Bank 
was established. These lands will be conserved and managed in 
perpetuity for alluvial fan scrub habitat and associated listed species 
(including the San Bernardino kangaroo rat) pursuant to the Habitat 
Enhancement and Management Plan (HEMP) completed in July 1996, and the 
associated Memorandum of Understanding and Implementation Agreement for 
the Cajon Creek Habitat Management Area (MOU) signed on October 21, 
1996 (Service 1998c, p. 2). The lands set aside to off-set mining 
impacts were placed under a permanent conservation easement. The 
approximately 610 ac (245 ha) Cajon Creek Conservation Bank was placed 
under a 10-year conservation easement on February 16, 1998. The 
original intent of the Service, Corps and Vulcan Materials Company was 
to place those lands within the bank under permanent conservation 
easement once all credits had been sold. The MOU addressing the 
permanent conservation of the Cajon Creek Conservation Bank and the 
conservation easement were recently extended by Vulcan Materials until 
2025 (Vulcan Materials Co. 2006, p. 1). More than half of the total 
credits available within the Cajon Creek Conservation Bank have been 
sold (M. Blane and Associates 2006, p. 5). Those credits not purchased 
by the end of the term will be available for purchase by the resource 
agencies (i.e., USFWS and CDFG).
    The HEMP and MOU state that the Cajon Creek HCMA is made up of a 
610-ac (245-ha) conservation bank and 768 ac (311 ha) of additional 
conservation lands, totaling 1,378 ac (558 ha) (M. Blane and Associates 
1996, p. 3-4; CalMat Co. 1996, p. 5). However, according to our GIS 
data based on information provided by Vulcan Materials, the footprint 
of the Cajon Creek HCMA is approximately 1,271 ac (514 ha). We are 
proposing to exclude these 1,271 ac (514 ha) from the final revised 
critical habitat designation based on benefits provided through 
conservation and management of these lands described in the HEMP and 
MOU. We may exclude the remaining 107 ac (43 ha) if we receive 
additional information during the public comment period on this 
proposal.
    Habitat protection and enhancement measures are explained in the 
HEMP (M. Blane and Associates 1996, p. 21). Habitat protection measures 
are used to minimize unauthorized human intrusion and impacts 
associated with such intrusion (M. Blane and Associates 1996, p. 21). 
More specifically, protection measures involve restricted access to the 
Conservation Management Area to minimize off-road vehicle use, target 
shooting, trash dumping, and other activities that result in 
degradation of natural areas (M. Blane and Associates 1996, p. 25). 
Restrictive barriers and signage are placed along borders and near 
access points. Removal of unnecessary roads and subsequent revegetation 
of those roads will further discourage unauthorized access (M. Blane 
and Associates 1996, p. 28). Furthermore, trash existing on 
Conservation Management Area lands and adjacent lands within San 
Bernardino County Flood Control property will be removed as stated in 
the HEMP (M. Blane and Associates 1996, p. 28). Habitat enhancement 
measures are intended to restore the biological integrity of degraded 
alluvial scrub habitat and associated plant and animal species 
(including the San Bernardino kangaroo rat) within the Conservation 
Management Area and to protect it from further degradation (M. Blane 
and Associates 1996, p. 21). Specifically, habitat enhancement includes 
weed control involving removal of exotic plants on Conservation 
Management Area lands and adjacent lands and alluvial scrub 
revegetation activities as described in the HEMP (M. Blane and 
Associates 1996, p. 22). The above protection and enhancement measures 
ensure that alluvial fans, washes, and associated upland habitat (PCEs 
1, 2, and 3) required by this subspecies are conserved.
    The Cajon Creek HCMA has been and continues to be managed in 
accordance with the HEMP and MOU by Vulcan Materials Company, who 
provides us with an annual report of management activities within the 
HCMA. Plan implementation has resulted in revegetation of previously 
mined areas, trash removal and overall decrease in trash dumping, 
placement of signage and barriers in areas vulnerable to unauthorized 
access, and successful invasive weed eradication (M. Blane and 
Associates 2006, p. 12). The continued implementation of the Cajon 
Creek HCMA HEMP will ensure the conservation of habitat for the San 
Bernardino kangaroo rat.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified habitat loss, destruction, degradation, and fragmentation 
due to sand and gravel mining operations, flood control projects, and 
urban development as primary threats to the San Bernardino kangaroo 
rat. As described above, the Cajon Creek Habitat Conservation 
Management Area HEMP provides enhancement of the habitat by removing or 
reducing threats to this subspecies and the PCEs. The HEMP preserves 
habitat that supports identified core populations of this subspecies 
and therefore provides for recovery.

Benefits of Inclusion

    We believe there would be minimal benefit in retaining as critical 
habitat for the San Bernardino kangaroo rat lands within the 1,271 ac 
(514 ha) of the Cajon Creek HCMA, covered by the HEMP, in Unit 2 
because this habitat within the Lytle/Cajon wash is already conserved 
and managed for the benefit of the subspecies as explained above.
    The primary benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act, 
which directs Federal agencies to ensure that actions they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of a threatened or endangered species, and do not result in the 
destruction or adverse modification of critical habitat. However, the 
inclusion of 1,271 ac (514 ha) of Cajon Creek HCMA lands in the revised 
critical habitat designation for the San Bernardino kangaroo rat would 
be unlikely to provide any additional protection for the subspecies 
since the protection provided would be a limitation on the adverse 
effects that occur, as opposed to a requirement to provide a 
conservation benefit. The conservation measures for the San Bernardino 
kangaroo rat included in HEMP are affirmative obligations that provide 
a conservation benefit to the subspecies. We anticipate that these 
conservation measures will exceed any conservation value provided as a 
result of regulatory protections that have been or may be afforded 
through critical habitat designation.
    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, as a means 
to encourage conservation efforts to benefit the San Bernardino

[[Page 33828]]

kangaroo rat and its habitat. However, by publication of this proposed 
rule, we are educating the public of the location of core populations 
and areas most important for the recovery of this subspecies. 
Furthermore, as discussed above, the importance of protecting the 
biological resource values of these lands, including the San Bernardino 
kangaroo rat, has already been clearly and effectively communicated to 
Federal, State, and local agencies, as well as other interested 
organizations and members of the public through the current 
designation, this proposed rule, and the HEMP's approval and 
implementation process.
    In short, we expect the Cajon Creek HCMA HEMP to provide protection 
to and management of the San Bernardino kangaroo rat and its PCEs 
within areas considered essential for conservation of the subspecies on 
private lands in the Lytle/Cajon wash area. We expect the HEMP to 
provide a greater level of conservation for the San Bernardino kangaroo 
rat on private lands in this area than retaining these lands as 
critical habitat.

Benefits of Exclusion

    In contrast to section 7(a)(2) of the Act, the Cajon Creek Habitat 
Conservation Management Area HEMP commits Vulcan Materials Co. to 
manage the Conservation Management Area lands for the benefit of 
alluvial scrub habitat, the San Bernardino kangaroo rat, and other 
covered species. These commitments go well beyond a simple requirement 
to avoid adverse modification of critical habitat; they include 
protection, management, and enhancement of land within Unit 2 located 
in the Conservation Management Area. Excluding these 1,271 ac (514 ha) 
of lands from critical habitat designation would help strengthen 
partnerships and recognize the Vulcan Materials Co. commitment under 
the HEMP to manage Conservation Management Area lands consistent with 
the conservation goals and objectives of the HEMP.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion of 
approximately 1,271 ac (514 ha) of Cajon Creek HCMA lands, covered 
under the HEMP, from the revised designation of critical habitat. We 
have determined that the benefits of excluding these lands in Unit 2 
outweigh the benefits of retaining these lands as critical habitat. The 
PCEs required by the San Bernardino kangaroo rat will benefit from the 
implementation of protection and enhancement measures outlined in the 
HEMP. In summary, these measures include restricted access, restrictive 
barriers and signage, trash removal, weed control, and revegetation of 
unnecessary roads and previously mined areas. These specific 
conservation actions and management for the San Bernardino kangaroo rat 
and its PCEs exceed any conservation value provided as a result of 
regulatory protections that have been or may be afforded through 
critical habitat designation.
    The exclusion of these lands from critical habitat would also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents during creation of the Cajon Creek 
HCMA and development of the HEMP. The benefits of excluding these lands 
from revised critical habitat outweigh the minimal benefits of 
retaining these lands as critical habitat, including the educational 
benefits of critical habitat designation through informing the public 
of areas important for the long-term conservation of the San Bernardino 
kangaroo rat. Such educational benefits can still be accomplished 
through materials provided on our Web site. Further, many educational 
benefits will be achieved through this proposal's notice and public 
comment period, which will occur whether or not this particular area is 
designated.

Exclusion Will Not Result in Extinction of the Subspecies

    We do not believe that the exclusion of 1,271 ac (514 ha) from the 
final revised designation of critical habitat for the San Bernardino 
kangaroo rat would result in the extinction of the subspecies because 
the Cajon Creek Habitat Conservation Management Area HEMP provides for 
the conservation of the subspecies and its PCEs on occupied areas in 
Unit 2 (Lytle/Cajon wash). 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 subspecies will not 
go extinct. The protections afforded to the San Bernardino kangaroo rat 
under the jeopardy standard will remain in place for the areas proposed 
for exclusion from revised critical habitat.

Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)

    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional habitat conservation plan (HCP) encompassing 1.26-
million ac (510,000 ha) in western Riverside County. The MSHCP 
addresses 146 listed and unlisted ``covered species,'' including the 
San Bernardino kangaroo rat. Participants in the MSHCP include 14 
cities in western Riverside County; the County of Riverside, including 
the Riverside County Flood Control and Water Conservation Agency 
(County Flood Control), Riverside County Transportation Commission, 
Riverside County Parks and Open Space District, and Riverside County 
Waste Department; California Department of Parks and Recreation; and 
the California Department of Transportation (Caltrans). The MSHCP was 
designed to establish a multi-species conservation program that 
minimizes and mitigates the expected loss of habitat and the incidental 
take of covered species. On June 22, 2004, the Service issued a single 
incidental take permit (TE-088609-0) under section 10(a)(1)(B) of the 
Act to 22 permittees under the MSHCP for a period of 75 years.
    The MSHCP will establish approximately 153,000 ac (61,916 ha) of 
new conservation lands (Additional Reserve Lands) to complement the 
approximately 347,000 ac (140,426 ha) of existing natural and open 
space areas designated by the MSHCP as Public/Quasi-Public (PQP) lands. 
PQP lands include those under Federal ownership, primarily the U.S. 
Forest Service and Bureau of Land Management, and also permittee-owned 
open-space areas (e.g., State Parks, County Flood Control, and County 
Park lands). Collectively, the Additional Reserve Lands and PQP lands 
form the overall MSHCP Conservation Area.
    The precise configuration of the 153,000 ac (61,916 ha) of 
Additional Reserve Lands is not mapped or precisely identified in the 
MSHCP, but rather is based on textual descriptions within the bounds of 
a 310,000 ac (125,453 ha) Criteria Area that is interpreted as 
implementation of the MSHCP proceeds. The proposed critical habitat 
Unit 3 (San Jacinto River) for the San Bernardino kangaroo rat is 
located within the MSHCP Plan Area.
    Specific conservation objectives in the MSHCP for the San 
Bernardino kangaroo rat include providing 4,400 ac (1,797 ha) of 
occupied or suitable habitat within the historic flood plains of the 
San Jacinto River and Bautista Creek and their tributaries in the MSHCP 
Conservation Area. This acreage goal can be provided through private 
lands within the Criteria Area that are targeted for inclusion within 
the MSHCP Conservation Area as potential Additional Reserve Lands and/
or through coordinated management of PQP lands. Additionally, the MSHCP

[[Page 33829]]

requires surveys for the San Bernardino kangaroo rat as part of the 
project review process for public and private projects where suitable 
habitat is present within a defined mammal species survey area (see 
Mammal Species Survey Area Map, Figure 6-5 of the MSHCP, Volume I). For 
locations with positive survey results, 90 percent of those portions of 
the property that provide long-term conservation value for the species 
will be avoided until it is demonstrated that the conservation 
objectives for the species are met (Additional Survey Needs and 
Procedures; MSHCP Volume 1, section 6.3.2).
    The survey requirements, avoidance and minimization measures, and 
management for the San Bernardino kangaroo rat (and its PCEs) provided 
for in the Western Riverside County MSHCP exceed any conservation value 
provided as a result of regulatory protections that have been or may be 
afforded through critical habitat designation. We propose to exclude 
approximately 263 ac (106 ha) of private and permittee-owned PQP lands 
from revised critical habitat designation (in Unit 3 within the MSHCP 
Plan Area) under section 4(b)(2) of the Act. The areas proposed for 
exclusion are in separate parcels in the San Jacinto River wash 
distributed between the Blackburn Road/Lake Hemet Main Canal area, 
downstream to the East Main Street Bridge. Lands within these excluded 
areas are owned by or fall within the jurisdiction of MSHCP permittees. 
Projects in these areas conducted or approved by MSHCP permittees are 
subject to the conservation requirements of the MSHCP, including the 
Additional Survey Needs and Procedures policy.
    Lands within the MSHCP plan area owned by Eastern Municipal Water 
District and Lake Hemet Municipal Water District are not subject to the 
conservation requirements of the MSHCP through any discretionary 
authority of the permittees. Therefore, lands within proposed Unit 3 
owned by these two water districts (506 ac (205 ha)) are not being 
proposed for exclusion from the final revised designation under the 
Western Riverside County MSHCP.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified habitat loss, destruction, degradation, and fragmentation 
due to sand and gravel mining operations, flood control projects, and 
urban development as primary threats to the San Bernardino kangaroo 
rat. As described above, the Western Riverside County MSHCP provides 
enhancement of the habitat by removing or reducing threats to this 
subspecies and the PCEs. The MSHCP preserves habitat that supports 
identified core populations of this subspecies and therefore provides 
for recovery.

Benefits of Inclusion

    We believe there would be minimal benefit in retaining critical 
habitat for the San Bernardino kangaroo rat on private and permittee-
owned PQP lands in Unit 3 because habitat essential for this subspecies 
in the San Jacinto River area in Western Riverside County is within the 
area subject to conservation measures under the Western Riverside 
County MSHCP.
    The primary benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act, 
which directs Federal agencies to ensure that actions they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of a threatened or endangered species, and do not result in the 
destruction or adverse modification of critical habitat. The inclusion 
of these 263 ac (106 ha) of private and permittee-owned PQP lands in 
the revised critical habitat designation for the San Bernardino 
kangaroo rat would be unlikely to provide any additional protection for 
the species since the protection provided would be a limitation on the 
adverse effects that occur as opposed to a requirement to provide a 
conservation benefit. Under the Western Riverside County MSHCP, known 
locations of San Bernardino kangaroo rat in the San Jacinto River area 
will be conserved through the survey requirements, and avoidance and 
minimization measures. The conservation measures for the San Bernardino 
kangaroo rat included in the MSHCP are affirmative obligations that 
will provide a conservation benefit to the species when implemented. 
Additionally, new occurrences documented through survey efforts that 
are subsequently determined to be important to the overall conservation 
of the subspecies may be included in the Additional Reserve Lands. We 
anticipate that these conservation measures will exceed any 
conservation value provided as a result of regulatory protections that 
have been or may be afforded through critical habitat designation.
    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, as a means 
to encourage conservation efforts to benefit the San Bernardino 
kangaroo rat and its habitat. However, by publication of this proposed 
rule, we are educating the public of the location of core populations 
and areas most important for the recovery of this subspecies. 
Furthermore, as discussed above, the importance of protecting the 
biological resource values of these lands, including the San Bernardino 
kangaroo rat, has already been clearly and effectively communicated to 
Federal, State, and local agencies, as well as other interested 
organizations and members of the public through the current 
designation, this proposed rule, and the Western Riverside County 
MSHCP's approval and implementation process.
    In short, we expect the Western Riverside County MSHCP to provide 
protection to and management of the San Bernardino kangaroo rat and its 
PCEs within areas considered essential for conservation of the 
subspecies on private and permittee-owned PQP lands in the San Jacinto 
River area. We expect the MSHCP to provide a greater level of 
conservation for the San Bernardino kangaroo rat on private and 
permittee-owned PQP lands in this area than retaining these lands as 
critical habitat.

Benefits of Exclusion

    In contrast to section 7(a)(2) of the Act, the Western Riverside 
County MSHCP commits the permittees to manage their own lands and 
direct development and other projects on private lands for which they 
have discretionary authority in western Riverside County, California, 
for the benefit of the San Bernardino kangaroo rat and other covered 
species. These commitments go well beyond a simple requirement to avoid 
adverse modification of critical habitat; they involve directing the 
conservation and management of land within Unit 3 in accordance with 
the species-specific objectives of the MSHCP for the San Bernardino 
kangaroo rat. Excluding these 263 ac (106 ha) of private and permittee-
owned PQP lands, which are subject to the MSHCP, from revised critical 
habitat designation also provides incentive to the permittees to 
maintain and strengthen the partnerships created by their official 
participation in the MSHCP planning process, especially considering the 
high level of cooperation by the participants in the MSHCP to conserve 
this subspecies.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion of 
approximately 263 ac (106 ha) of private and permittee-owned PQP lands 
within the MSHCP Plan Area from the revised designation

[[Page 33830]]

of critical habitat. We have determined that the benefits of excluding 
these lands from Unit 3 outweigh the benefits of retaining these lands 
as critical habitat. The PCEs required by the San Bernardino kangaroo 
rat will benefit by the conservation measures outlined in the MSHCP. In 
summary, these conservation measures include providing 4,440 ac (1,797 
ha) of occupied or suitable habitat (as defined in the Western 
Riverside MSHCP) for the San Bernardino kangaroo rat within the MSHCP 
Conservation Area; ensuring at least 75 percent of the area included in 
the MSHCP Conservation Area is occupied and that 20 percent of the 
occupied habitat supports a medium or higher population density (>=5 to 
15 individuals per ha; McKernan 1997) of the subspecies measured across 
any 8-year period (the approximate length of the weather cycle); 
maintaining, or, if feasible, restoring ecological processes within the 
historic flood plain of the San Jacinto River and Bautista Creek, their 
tributaries, and other locations within the Criteria Area where the San 
Bernardino kangaroo rat is detected in the future; and conducting 
surveys and implementing other required procedures to ensure avoidance 
of impacts to at least 90 percent of suitable habitat areas determined 
important to the long-term conservation of the San Bernardino kangaroo 
rat within the Criteria Area (Service 2004, p. 297). These specific 
conservation actions, survey requirements, avoidance and minimization 
measures, and management for the San Bernardino kangaroo rat and its 
PCEs exceed any conservation value provided as a result of regulatory 
protections that have been or may be afforded through critical habitat 
designation.
    The exclusion of these lands from critical habitat would also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents in the development of the MSHCP. 
The benefits of excluding these lands from revised critical habitat 
outweigh the minimal benefits of retaining these lands as critical 
habitat, including the educational benefits of critical habitat 
designation through informing the public of areas important for the 
long-term conservation of the San Bernardino kangaroo rat. Such 
educational benefits can still be accomplished through materials 
provided on our Web site. Further, many educational benefits will be 
achieved through this proposal's notice and public comment period, 
which will occur whether or not these particular areas are designated.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of 263 ac (106 ha) from the 
final revised designation of critical habitat for the San Bernardino 
kangaroo rat would result in the extinction of the subspecies because 
the Western Riverside County MSHCP provides for the conservation of 
this subspecies and its PCEs on occupied areas in Unit 3 (San Jacinto 
River), as well as areas discovered to be occupied by the San 
Bernardino kangaroo rat during surveys of suitable habitat within a 
defined-boundary, mammal-species survey area. Importantly, as we stated 
in our biological opinion, while some loss of modeled habitat for the 
San Bernardino kangaroo rat is anticipated due to implementation of the 
MSHCP, we concluded that implementation of the plan will not jeopardize 
the continued existence of this subspecies.
    The jeopardy standard of section 7 and routine implementation of 
conservation measures through the section 7 process also provide 
assurances that the subspecies will not go extinct. The protections 
afforded to the San Bernardino kangaroo rat under the jeopardy standard 
will remain in place for the areas proposed for exclusion from revised 
critical habitat.

Economics

    An analysis of the economic impacts of proposing revised critical 
habitat for the San Bernardino kangaroo rat is being prepared. We will 
announce the availability of the draft economic analysis as soon as it 
is completed, at which time we will seek public review and comment. At 
that time, copies of the draft economic analysis will be available for 
downloading from the Internet at http://carlsbad.fws.gov or by 
contacting the Carlsbad Fish and Wildlife Office directly (see 
ADDRESSES section).

Peer Review

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

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.
    Persons needing reasonable accommodations to attend and participate 
in the public hearings should contact the Carlsbad Fish and Wildlife 
Office at 760-431-9440 as soon as possible. To allow sufficient time to 
process requests, please call no later than one week before the hearing 
date.

Clarity of the Rule

    Executive Order 12866 (Regulatory Planning and Review) requires 
each agency to write regulations and notices that are easy to 
understand. We invite your comments on how to make this proposed rule 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the proposed rule clearly 
stated? (2) Does the proposed rule contain technical jargon that 
interferes with the clarity? (3) Does the format of the proposed rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? (5) What else could we do to make 
this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: [email protected].

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule in that it may raise novel legal and

[[Page 33831]]

policy issues, but it is not anticipated to have an annual effect on 
the economy of $100 million or more or affect the economy in a material 
way. Due to the tight timeline for publication in the Federal Register, 
the Office of Management and Budget (OMB) has not formally reviewed 
this rule. We are preparing a draft economic analysis of this proposed 
action, which will be available for public comment, to determine the 
economic consequences of designating the specific area as critical 
habitat. This economic analysis also will be used to determine 
compliance with Executive Order 12866, Regulatory Flexibility Act, 
Small Business Regulatory Enforcement Fairness Act, Executive Order 
12630, Executive Order 13211, and Executive Order 12875.
    Further, Executive Order 12866 directs Federal agencies 
promulgating regulations to evaluate regulatory alternatives (Office of 
Management and Budget, Circular A-4, September 17, 2003). Pursuant to 
Circular A-4, once it has been determined that the Federal regulatory 
action is appropriate, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement under the Act, we must then evaluate 
alternative regulatory approaches, where feasible, when promulgating a 
designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts under section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the subspecies. As such, we believe that the evaluation of the 
inclusion or exclusion of particular areas, or combination thereof, 
constitutes our regulatory alternative analysis.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. At that time, the draft economic analysis will be available 
from the internet Web site at http://carlsbad.fws.gov or by contacting 
the Carlsbad Fish and Wildlife Office directly (see ADDRESSES section).

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

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

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

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

[[Page 33832]]

critical habitat rests squarely on the Federal agency. Furthermore, to 
the extent that non-Federal entities are indirectly impacted because 
they receive Federal assistance or participate in a voluntary Federal 
aid program, the Unfunded Mandates Reform Act would not apply, nor 
would critical habitat shift the costs of the large entitlement 
programs listed above on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because the majority of the areas being 
proposed are under private and county ownership. None of these 
government entities fit the definition of ``small governmental 
jurisdiction.'' As such, a Small Government Agency Plan is not 
required. However, we will further evaluate this issue as we conduct 
our economic analysis and review and revise this assessment as 
warranted.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. Executive Order 13211 requires 
agencies to prepare Statements of Energy Effects when undertaking 
certain actions. While this proposed rule to designate critical habitat 
for the San Bernardino kangaroo rat is a significant regulatory action 
under Executive Order 12866, it is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating revised critical habitat for the San Bernardino kangaroo 
rat in a takings implications assessment. The takings implications 
assessment concludes that this revised designation of critical habitat 
for the San Bernardino kangaroo rat does not pose significant takings 
implications. However, we will further evaluate this issue as we 
conduct our economic analysis and review and revise this assessment as 
warranted.

Federalism

    In accordance with Executive Order 13132 (Federalism), this rule 
does not have significant Federalism effects. A Federalism assessment 
is not required. In keeping with Department of the Interior and 
Department of Commerce policy, we requested information from, and 
coordinated development of, this proposed revised critical habitat 
designation with appropriate State resource agencies in California. The 
designation may have some benefit to these governments in that the 
areas that contain the features essential to the conservation of the 
subspecies are more clearly defined, and the PCEs of the habitat 
necessary to the conservation of the subspecies are specifically 
identified. While making this definition and identification does not 
alter where and what federally sponsored activities may occur, it may 
assist these local governments in long-range planning (rather than 
waiting for case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988 (Civil Justice Reform), 
the Office of the Solicitor has determined that this rule does not 
unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have proposed designating 
revised critical habitat in accordance with the provisions of the Act. 
This proposed rule uses standard property descriptions and identifies 
the PCEs within the designated areas to assist the public in 
understanding the habitat needs of the San Bernardino kangaroo rat.

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

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

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et. seq.)

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of the Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997, ``American Indian Tribal 
Rights, Federal-Tribal Trust Responsibilities, and the Endangered 
Species Act,'' we readily acknowledge our responsibilities to work 
directly with tribes in developing programs for healthy ecosystems, to 
acknowledge that tribal lands are not subject to the same controls as 
Federal public lands, to remain sensitive to Indian culture, and to 
make information available to tribes.
    The current designation of critical habitat for the San Bernardino 
kangaroo rat includes 710 ac (290 ha) of land within the Soboba Band of 
Luise[ntilde]o Indians Reservation. At the time of designation, we 
included these lands as essential to the conservation of the San 
Bernardino kangaroo rat because we believed that the area supported 
several populations and provided continuity between two adjacent areas 
of essential habitat. These lands are adjacent to known occupied areas 
that we are proposing as critical habitat within the San Jacinto wash 
(Unit 3). However, given the lack of subspecies' location and habitat 
information on Soboba Band of Luise[ntilde]o Indians Reservation lands 
available at the time of the drafting of this proposed rule, we were 
unable to thoroughly assess either the status of the subspecies on 
those lands or the management practices currently employed by the 
Tribe. Though we continue to believe these Tribal lands are likely 
occupied, at least in part, by the San Bernardino kangaroo rat, due to 
the continuity of these lands with known occupied habitat, we do not 
know whether these lands contain the features that are essential to the 
conservation of the subspecies. As a result, and in light of 
Secretarial Order 3206, we are not including these Tribal lands in the 
area proposed as revised critical habitat for the San Bernardino 
kangaroo rat. We are committed to maintaining a positive working 
relationship with the Tribes and will continue our attempts to work 
with them on conservation measures

[[Page 33833]]

benefiting the San Bernardino kangaroo rat.

References Cited

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

Author(s)

    The primary author of this package is the Carlsbad Fish and 
Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.95(a), revise the entry for ``San Bernardino 
Kangaroo Rat (Dipodomys merriami parvus)'' to read as follows:


Sec.  17.95  Critical habitat--fish and wildlife.

    (a) Mammals.
* * * * *
    San Bernardino Kangaroo Rat (Dipodomys merriami parvus)
    (1) Critical habitat units are depicted for San Bernardino and 
Riverside counties, California, on the maps below.
    (2) The PCEs of critical habitat for the San Bernardino kangaroo 
rat are the habitat components that provide:
    (i) Alluvial fans, washes, and associated floodplain areas 
containing soils consisting predominately of sand, loamy sand, sandy 
loam, and loam, which provide burrowing habitat necessary for 
sheltering and rearing offspring, storing food in surface caches, and 
movement between occupied patches;
    (ii) Upland areas adjacent to alluvial fans, washes, and associated 
floodplain areas containing alluvial sage scrub habitat and associated 
vegetation, such as coastal sage scrub and chamise chaparral, with up 
to approximately 50 percent canopy cover providing protection from 
predators, while leaving bare ground and open areas necessary for 
foraging and movement of this subspecies; and
    (iii) Upland areas adjacent to alluvial fans, washes, and 
associated floodplain areas, which may include marginal habitat such as 
alluvial sage scrub with greater than 50 percent canopy cover with 
patches of suitable soils that support individuals for re-population of 
wash areas following flood events. These areas may include agricultural 
lands, areas of inactive aggregate mining activities, and urban/
wildland interfaces.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, roads, other paved areas, and the land 
on which such structures are located) existing on the effective date of 
this rule and not containing one or more of the PCEs.
    (4) Data layers defining map units were created on a base of NAIP 
(USDA) 1:24,000 maps, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) coordinates.
    (5) Note: Index map of critical habitat units for the San 
Bernardino kangaroo rat (Map 1) follows:
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[[Page 33834]]

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[[Page 33835]]

    (6) Unit 1: Santa Ana River Wash, San Bernardino County, 
California. From USGS 1:24,000 quadrangles San Bernardino North and 
Devore.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1927 (NAD27) coordinates (E, N): 482590, 
3777012; 482552, 3776943; 482558, 3776715; 482692, 3776286; 482707, 
3776201; 482717, 3775426; 482568, 3775426; 482435, 3775170; 482428, 
3774953; 482444, 3774750; 482466, 3774716; 482231, 3774477; 482161, 
3774375; 481828, 3773959; 481701, 3773548; 481670, 3773552; 481632, 
3773557; 481544, 3773563; 481307, 3773467; 481190, 3773483; 481147, 
3773505; 481135, 3773507; 481097, 3773509; 481019, 3773481; 480850, 
3773325; 480850, 3773289; 480835, 3773289; 480834, 3772979; 480834, 
3772974; 480837, 3772974; 480837, 3772904; 481087, 3772866; 481311, 
3772937; 481467, 3772911; 481609, 3772957; 481612, 3772958; 481659, 
3772966; 481687, 3772961; 481648, 3772551; 481660, 3772547; 481827, 
3772547; 482106, 3772547; 482223, 3772495; 482278, 3772489; 482335, 
3772483; 482363, 3772483; 482446, 3772484; 482448, 3772484; 482448, 
3772482; 482492, 3772485; 482495, 3772486; 482498, 3772486; 482511, 
3772489; 482541, 3772494; 482546, 3772497; 482552, 3772499; 482567, 
3772509; 482587, 3772519; 482608, 3772536; 482613, 3772539; 482644, 
3772563; 482698, 3772609; 482754, 3772665; 482775, 3772683; 482788, 
3772698; 482815, 3772725; 482846, 3772767; 482862, 3772784; 482876, 
3772777; 482894, 3772767; 482925, 3772752; 482946, 3772739; 482958, 
3772730; 482985, 3772705; 482993, 3772695; 483015, 3772663; 483035, 
3772628; 483037, 3772625; 483040, 3772621; 483067, 3772578; 483083, 
3772563; 483094, 3772552; 483097, 3772550; 483098, 3772549; 483125, 
3772532; 483133, 3772527; 483156, 3772520; 483172, 3772514; 483184, 
3772512; 483185, 3772511; 483202, 3772508; 483255, 3772513; 483265, 
3772514; 483292, 3772514; 484048, 3772536; 484062, 3772536; 484058, 
3772150; 484052, 3771841; 484100, 3771844; 484101, 3771827; 484278, 
3771815; 484337, 3771896; 484862, 3771943; 484861, 3772142; 484857, 
3772538; 485653, 3772529; 485653, 3772539; 485647, 3772793; 485647, 
3772821; 485644, 3772926; 486049, 3772935; 486455, 3772944; 487040, 
3772956; 487329, 3772655; 487916, 3772655; 488068, 3772614; 488207, 
3772623; 488355, 3772642; 488515, 3772698; 488645, 3772622; 489184, 
3772616; 489762, 3772965; 489816, 3773035; 490029, 3773124; 490134, 
3773086; 490315, 3773184; 490317, 3773081; 490336, 3773063; 490335, 
3773059; 490335, 3773051; 490334, 3773045; 490333, 3773039; 490330, 
3773028; 490329, 3773021; 490328, 3773018; 490326, 3773012; 490325, 
3773009; 490322, 3773002; 490318, 3772992; 490315, 3772985; 490312, 
3772979; 490307, 3772971; 490304, 3772965; 490283, 3772933; 490252, 
3772885; 490218, 3772832; 490214, 3772835; 490133, 3772709; 489991, 
3772491; 489984, 3772480; 489722, 3772106; 489717, 3772099; 489708, 
3772085; 489638, 3771986; 489625, 3771971; 489620, 3771960; 489615, 
3771947; 489611, 3771936; 489607, 3771910; 489607, 3771896; 489594, 
3771898; 489564, 3771905; 489527, 3771843; 489313, 3771534; 489275, 
3771570; 489235, 3771603; 489180, 3771642; 489136, 3771675; 489120, 
3771686; 489069, 3771718; 489021, 3771747; 489001, 3771760; 488976, 
3771773; 488949, 3771791; 488892, 3771818; 488820, 3771850; 488771, 
3771871; 488742, 3771884; 488715, 3771894; 488677, 3771911; 488602, 
3771931; 488521, 3771952; 488433, 3771975; 488400, 3771976; 488274, 
3771976; 488253, 3771979; 488223, 3771990; 488208, 3771995; 488189, 
3772000; 488137, 3772005; 488063, 3772004; 488001, 3772002; 487934, 
3771995; 487878, 3771990; 487818, 3771981; 487777, 3771971; 487768, 
3771969; 487731, 3771959; 487683, 3771947; 487658, 3771939; 487623, 
3771932; 487572, 3771917; 487529, 3771908; 487504, 3771901; 487472, 
3771892; 487452, 3771889; 487438, 3771886; 487423, 3771885; 487399, 
3771882; 487402, 3771867; 487403, 3771827; 487516, 3771318; 487268, 
3771322; 487289, 3771375; 487260, 3771394; 487260, 3771428; 485895, 
3771419; 485670, 3771343; 485670, 3771346; 485568, 3771349; 485492, 
3771305; 485362, 3771216; 485327, 3771254; 485241, 3771209; 485212, 
3771219; 484946, 3771219; 484822, 3771289; 484704, 3771317; 484492, 
3771314; 484432, 3771277; 484311, 3771273; 484149, 3771336; 484101, 
3771336; 483952, 3771292; 483790, 3771289; 483663, 3771314; 483460, 
3771384; 483454, 3771379; 483432, 3771436; 483352, 3771449; 483289, 
3771473; 483239, 3771476; 483239, 3771477; 483160, 3771512; 483060, 
3771564; 483079, 3771676; 482736, 3771752; 482723, 3771717; 482555, 
3771806; 482434, 3771863; 482384, 3771863; 482374, 3771914; 482234, 
3771920; 482207, 3771948; 482206, 3772009; 482142, 3772009; 482050, 
3772111; 481599, 3772114; 481595, 3772230; 481375, 3772233; 480949, 
3772223; 480843, 3772211; 480837, 3772210; 480517, 3772166; 480517, 
3772168; 480250, 3772165; 480228, 3772163; 479914, 3772133; 479637, 
3772089; 479282, 3772025; 479231, 3771987; 479221, 3771808; 479056, 
3771752; 478859, 3771749; 478793, 3771708; 478602, 3771616; 478367, 
3771619; 478285, 3771568; 477843, 3771295; 477777, 3771241; 477688, 
3771216; 477605, 3771187; 477389, 3771123; 477250, 3771069; 477250, 
3771015; 477189, 3771015; 477094, 3770968; 476993, 3770914; 476869, 
3770885; 476735, 3770847; 476583, 3770933; 476488, 3770955; 476459, 
3770892; 476354, 3770876; 476192, 3770714; 476126, 3770634; 476128, 
3770748; 476137, 3770822; 476142, 3770933; 476142, 3771059; 476147, 
3771181; 476212, 3771208; 476295, 3771232; 476384, 3771254; 476356, 
3771382; 476865, 3771484; 476869, 3771692; 477113, 3771692; 477062, 
3771508; 477602, 3771504; 477609, 3771666; 477742, 3771758; 477777, 
3771797; 478307, 3772085; 478291, 3772155; 478320, 3772203; 478329, 
3772204; 478450, 3772209; 478453, 3772209; 478534, 3772198; 478569, 
3772222; 478562, 3772235; 478404, 3772509; 480020, 3773080; 480219, 
3773150; 480219, 3773238; 480020, 3773167; 479937, 3773138; 479890, 
3773270; 479889, 3773324; 479889, 3773386; 480019, 3773382; 480081, 
3773379; 480083, 3773384; 480085, 3773390; 480479, 3773529; 480480, 
3773597; 480580, 3773637; 480642, 3773662; 480790, 3773660; 480790, 
3773566; 480790, 3773521; 480809, 3773521; 480809, 3773437; 480809, 
3773390; 480811, 3773392; 481009, 3773571; 481628, 3774302; 481626, 
3774304; 481726, 3774429; 481707, 3774543; 481803, 3774556; 482047, 
3774997; 482076, 3775099; 482079, 3775324; 482168, 3775331; 482228, 
3775531; 482438, 3776058; 482447, 3776499; 482422, 3776705; 482376, 
3776863; 482513, 3777012; thence returning to 482590, 3777012; and land 
bounded by 484746, 3773730; 484758, 3773732; 485161, 3773709; 485628, 
3773706; 485635, 3773343; 484859, 3773338; 484063, 3773343; 484062, 
3773734; thence returning to 484746, 3773730.
    (ii) Note: Map of Unit 1--Santa Ana River Wash (Map 2) follows:
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[[Page 33836]]

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BILLING CODE 4310-55-C

[[Page 33837]]

    (7) Unit 2: Lytle/Cajon Creek Wash, San Bernardino County, 
California. From USGS 1:24,000 quadrangles San Bernardino South, 
Redlands, Yucaipa, and Harrison Mountain.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1927 (NAD27) coordinates (E, N): 463087, 
3785948; 463459, 3785623; 463463, 3785620; 463466, 3785617; 463469, 
3785614; 463472, 3785611; 463475, 3785609; 463478, 3785606; 463481, 
3785603; 463484, 3785600; 463486, 3785597; 463489, 3785594; 463492, 
3785591; 463495, 3785588; 463498, 3785585; 463501, 3785582; 463503, 
3785579; 463506, 3785576; 463509, 3785573; 463512, 3785570; 463514, 
3785567; 463517, 3785564; 463520, 3785561; 463522, 3785558; 463525, 
3785554; 463527, 3785551; 463530, 3785548; 463533, 3785545; 463535, 
3785541; 463538, 3785538; 463540, 3785535; 463542, 3785532; 463545, 
3785528; 463547, 3785525; 463550, 3785521; 463552, 3785518; 463554, 
3785515; 463556, 3785511; 463559, 3785508; 463561, 3785504; 463563, 
3785501; 463565, 3785497; 463568, 3785494; 463570, 3785490; 463572, 
3785487; 463574, 3785483; 463576, 3785480; 463578, 3785476; 463580, 
3785473; 463582, 3785469; 463584, 3785465; 463586, 3785462; 463588, 
3785458; 463589, 3785454; 463591, 3785451; 463711, 3785198; 463711, 
3785196; 463710, 3785195; 463710, 3785193; 463710, 3785191; 463710, 
3785190; 463709, 3785188; 463709, 3785186; 463709, 3785185; 463709, 
3785183; 463709, 3785181; 463709, 3785180; 463709, 3785178; 463709, 
3785176; 463709, 3785175; 463709, 3785173; 463709, 3785171; 463709, 
3785170; 463710, 3785168; 463710, 3785166; 463710, 3785165; 463710, 
3785163; 463711, 3785162; 463711, 3785160; 463711, 3785158; 463712, 
3785157; 463712, 3785155; 463713, 3785153; 463713, 3785152; 463714, 
3785150; 463714, 3785149; 463715, 3785147; 463715, 3785146; 463716, 
3785144; 463716, 3785143; 463717, 3785141; 463718, 3785140; 463720, 
3785135; 463722, 3785131; 463724, 3785127; 463726, 3785123; 463728, 
3785119; 463730, 3785115; 463732, 3785111; 463734, 3785107; 463736, 
3785103; 463739, 3785100; 463741, 3785096; 463743, 3785092; 463745, 
3785088; 463748, 3785084; 463750, 3785080; 463752, 3785076; 463755, 
3785072; 463757, 3785069; 463760, 3785065; 463762, 3785061; 463765, 
3785057; 463767, 3785054; 463770, 3785050; 463772, 3785046; 463775, 
3785042; 463777, 3785039; 463780, 3785035; 463783, 3785031; 463785, 
3785028; 463788, 3785024; 463791, 3785021; 463794, 3785017; 463797, 
3785014; 463799, 3785010; 463802, 3785007; 463805, 3785003; 463808, 
3785000; 463811, 3784996; 463814, 3784993; 463817, 3784989; 463820, 
3784986; 463823, 3784983; 463826, 3784979; 463829, 3784976; 463832, 
3784973; 463835, 3784969; 463838, 3784966; 463841, 3784963; 463844, 
3784960; 463848, 3784956; 463851, 3784953; 463854, 3784950; 463857, 
3784947; 463861, 3784944; 463864, 3784941; 463867, 3784938; 463870, 
3784935; 463874, 3784932; 463877, 3784929; 463881, 3784926; 463884, 
3784923; 463887, 3784920; 463891, 3784917; 463894, 3784914; 463898, 
3784911; 463901, 3784908; 463905, 3784906; 463909, 3784903; 463912, 
3784900; 463916, 3784897; 463919, 3784895; 463923, 3784892; 463927, 
3784889; 463930, 3784887; 463934, 3784884; 463938, 3784882; 463941, 
3784879; 463945, 3784876; 463949, 3784874; 463953, 3784872; 463956, 
3784869; 463960, 3784867; 463964, 3784864; 463968, 3784862; 463972, 
3784860; 463976, 3784857; 463979, 3784855; 463983, 3784853; 463987, 
3784851; 463991, 3784849; 464414, 3784611; 464418, 3784609; 464423, 
3784607; 464427, 3784604; 464431, 3784602; 464435, 3784600; 464439, 
3784597; 464443, 3784595; 464447, 3784592; 464451, 3784590; 464455, 
3784587; 464459, 3784584; 464463, 3784582; 464467, 3784579; 464471, 
3784577; 464475, 3784574; 464478, 3784571; 464482, 3784568; 464486, 
3784566; 464490, 3784563; 464494, 3784560; 464498, 3784557; 464501, 
3784554; 464505, 3784551; 464509, 3784549; 464501, 3784413; 464641, 
3784413; 464644, 3784410; 464647, 3784406; 464650, 3784402; 464653, 
3784398; 464655, 3784394; 464658, 3784390; 464661, 3784386; 464663, 
3784383; 464666, 3784379; 464669, 3784375; 464671, 3784371; 464674, 
3784367; 464676, 3784363; 464679, 3784359; 464681, 3784355; 464684, 
3784350; 464686, 3784346; 464689, 3784342; 464691, 3784338; 464693, 
3784334; 464696, 3784330; 464698, 3784326; 464700, 3784322; 464703, 
3784317; 464705, 3784313; 464707, 3784309; 464709, 3784305; 464711, 
3784301; 464713, 3784296; 464716, 3784292; 464718, 3784288; 464720, 
3784283; 464722, 3784279; 464724, 3784275; 464726, 3784270; 464727, 
3784266; 464729, 3784262; 464731, 3784257; 464733, 3784253; 464735, 
3784249; 464737, 3784244; 464738, 3784240; 464740, 3784235; 464742, 
3784231; 464743, 3784226; 464745, 3784222; 464747, 3784217; 464748, 
3784213; 464750, 3784208; 464751, 3784204; 464753, 3784199; 464754, 
3784195; 464756, 3784190; 464757, 3784186; 464758, 3784181; 464760, 
3784177; 464761, 3784172; 464857, 3783831; 464897, 3783842; 464899, 
3783837; 464902, 3783833; 464904, 3783828; 464907, 3783824; 464910, 
3783819; 464913, 3783813; 464916, 3783808; 464919, 3783803; 464922, 
3783798; 464925, 3783792; 464928, 3783787; 464931, 3783782; 464934, 
3783777; 464937, 3783772; 464941, 3783767; 464944, 3783762; 464947, 
3783757; 464950, 3783752; 464954, 3783746; 464957, 3783741; 464960, 
3783736; 464964, 3783731; 464967, 3783726; 464971, 3783722; 464974, 
3783717; 464978, 3783712; 464981, 3783707; 464985, 3783702; 464988, 
3783697; 464992, 3783692; 464996, 3783687; 464999, 3783683; 465003, 
3783678; 465007, 3783673; 465010, 3783668; 465014, 3783663; 465018, 
3783659; 465022, 3783654; 465025, 3783649; 465029, 3783645; 465033, 
3783640; 465037, 3783635; 465041, 3783631; 465045, 3783626; 465049, 
3783622; 465053, 3783617; 465057, 3783613; 465061, 3783608; 465065, 
3783604; 465069, 3783599; 465073, 3783595; 465077, 3783590; 465081, 
3783586; 465085, 3783582; 465090, 3783577; 465094, 3783573; 465098, 
3783568; 465102, 3783564; 465107, 3783560; 465111, 3783556; 465115, 
3783551; 465120, 3783547; 465124, 3783543; 465128, 3783539; 465133, 
3783535; 465137, 3783531; 465142, 3783527; 465146, 3783522; 465150, 
3783518; 465155, 3783514; 465159, 3783510; 465164, 3783506; 465169, 
3783502; 465173, 3783499; 465178, 3783495; 465182, 3783491; 465187, 
3783487; 465192, 3783483; 465196, 3783479; 465201, 3783475; 465206, 
3783472; 465211, 3783468; 465215, 3783464; 465219, 3783461; 465220, 
3783461; 465237, 3783447; 465330, 3783377; 465384, 3783336; 465383, 
3783334; 465383, 3783334; 465514, 3783231; 465509, 3783190; 465484, 
3783074; 465504, 3783003; 465473, 3782871; 465504, 3782792; 465512, 
3782786; 465511, 3782785; 465676, 3782436; 465842, 3782568; 466014, 
3782350; 466015, 3782349; 466015, 3782348; 466016, 3782348; 466016, 
3782347; 466016, 3782346; 466016, 3782345; 466016, 3782344; 466016, 
3782342; 466016, 3782341; 466016, 3782340; 466016, 3782339; 466015, 
3782338; 466015, 3782337; 466015, 3782337; 465121, 3781997; 465058, 
3781947; 466028, 3782316; 466050, 3782333; 466071, 3782350; 466127, 
3782394; 466086, 3782237; 466067,

[[Page 33838]]

3782165; 465959, 3781749; 465942, 3781684; 465914, 3781577; 465973, 
3781562; 465975, 3781568; 465982, 3781564; 466048, 3781370; 466086, 
3781370; 466115, 3781283; 466429, 3781090; 466275, 3780501; 466310, 
3780489; 466369, 3780434; 466414, 3780371; 466466, 3780157; 466486, 
3780063; 466501, 3780068; 466500, 3780066; 466581, 3779690; 466679, 
3779391; 466733, 3779382; 466790, 3779293; 466882, 3779236; 466882, 
3779125; 466917, 3779115; 466914, 3779058; 466977, 3779039; 466987, 
3778991; 467139, 3778991; 467149, 3778737; 467387, 3778725; 467597, 
3778496; 467752, 3778493; 467759, 3778339; 468060, 3778026; 468174, 
3777982; 468181, 3777512; 468340, 3777113; 468255, 3777113; 468119, 
3777113; 467943, 3777115; 467678, 3777117; 466571, 3777823; 466570, 
3777827; 466541, 3777892; 466496, 3778032; 466485, 3778077; 466447, 
3778220; 466434, 3778243; 466335, 3778382; 466267, 3778449; 466187, 
3778499; 466020, 3778577; 465652, 3778740; 464939, 3779024; 464822, 
3779058; 464682, 3779087; 464564, 3779134; 464471, 3779162; 464372, 
3779212; 464293, 3779251; 464216, 3779286; 464140, 3779342; 464091, 
3779383; 464016, 3779409; 463950, 3779446; 463927, 3779515; 463878, 
3779550; 463788, 3779684; 463845, 3779891; 463768, 3779899; 463803, 
3779983; 463708, 3780047; 463480, 3780145; 463356, 3780190; 463414, 
3780332; 463377, 3780374; 463311, 3780366; 463095, 3780562; 462984, 
3780554; 462796, 3780459; 462646, 3780485; 462527, 3780568; 462522, 
3780647; 462373, 3780762; 462231, 3780862; 461712, 3780917; 461478, 
3780941; 461375, 3780956; 461330, 3780971; 461269, 3781002; 461212, 
3781041; 461169, 3781078; 461139, 3781072; 461121, 3781059; 461067, 
3781011; 460802, 3781211; 460285, 3781589; 459890, 3781893; 459890, 
3781986; 459877, 3782079; 459875, 3782086; 459946, 3782202; 460021, 
3782325; 460163, 3782484; 460489, 3782811; 460560, 3782745; 460564, 
3782743; 460765, 3782618; 460996, 3782475; 461013, 3782464; 461068, 
3782430; 461109, 3782404; 461146, 3782384; 461189, 3782360; 461230, 
3782341; 461272, 3782328; 461317, 3782321; 461353, 3782318; 461398, 
3782309; 461436, 3782296; 461472, 3782280; 461501, 3782262; 461548, 
3782232; 461611, 3782193; 461651, 3782167; 461674, 3782155; 461694, 
3782147; 461724, 3782138; 461759, 3782133; 461801, 3782122; 461833, 
3782108; 461864, 3782087; 461892, 3782069; 461908, 3782052; 461925, 
3782034; 461943, 3782010; 461963, 3781983; 461984, 3781962; 462010, 
3781941; 462038, 3781924; 462130, 3781866; 462494, 3781639; 462953, 
3781351; 463979, 3780695; 464077, 3780888; 463904, 3781111; 463869, 
3781355; 463928, 3781410; 463929, 3781408; 463931, 3781410; 464023, 
3781552; 464037, 3781481; 464028, 3781392; 464123, 3781303; 464161, 
3781306; 464183, 3781338; 464145, 3781392; 464193, 3781401; 464241, 
3781439; 464307, 3781379; 464323, 3781341; 464253, 3781277; 464339, 
3781160; 464393, 3781208; 464457, 3781157; 464520, 3781274; 464603, 
3781395; 464574, 3781763; 464948, 3781902; 465028, 3781931; 465018, 
3781957; 464907, 3782252; 464739, 3782425; 464704, 3782520; 464707, 
3782523; 464637, 3782704; 464620, 3782748; 464598, 3782810; 464638, 
3782878; 464453, 3783327; 464288, 3783603; 464261, 3783673; 464237, 
3783776; 464247, 3783868; 464215, 3783967; 464174, 3784068; 464066, 
3784217; 464003, 3784363; 463985, 3784383; 463985, 3784383; 463863, 
3784525; 463801, 3784678; 463717, 3784773; 463599, 3784846; 463305, 
3784948; 463329, 3785011; 463006, 3785227; 462847, 3785360; 462691, 
3785459; 462606, 3785447; 462189, 3785879; 462264, 3786254; 462274, 
3786288; 462129, 3786325; 461990, 3786399; 461766, 3786559; 461437, 
3786804; 461037, 3787098; 460940, 3787169; 460778, 3787284; 460623, 
3787401; 460404, 3787563; 460100, 3787788; 460033, 3787837; 460484, 
3788310; 460620, 3788204; 460731, 3788116; 460834, 3788037; 460924, 
3787969; 461135, 3787816; 461239, 3787744; 461331, 3787679; 461367, 
3787664; 461420, 3787623; 461678, 3787447; 461853, 3787333; 461874, 
3787345; 461902, 3787345; 461999, 3787259; 462221, 3787075; 462412, 
3786923; 462532, 3786856; 462642, 3786781; 462585, 3786644; 462714, 
3786559; 462827, 3786525; 462978, 3786502; 463028, 3786459; 463101, 
3786027; 463079, 3785989; thence returning to 463087, 3785948.
    (ii) Note: Map of Unit 2--Lytle/Cajon Creek Wash (Map 3) follows:
BILLING CODE 4310-55-P

[[Page 33839]]

[GRAPHIC] [TIFF OMITTED] TP19JN07.002

BILLING CODE 4310-55-C

[[Page 33840]]

    (8) Unit 3: San Jacinto River Wash, Riverside County, California. 
From USGS 1:24,000 quadrangles San Jacinto, Lake Fulmor, and Blackburn 
Canyon.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1927 (NAD27) coordinates (E, N): 506117, 
3738196; 506135, 3738210; 506228, 3738277; 506282, 3738312; 506282, 
3738310; 506287, 3738302; 506514, 3737927; 506580, 3737885; 506695, 
3737835; 506822, 3737844; 506911, 3737879; 506814, 3737733; 506706, 
3737612; 506706, 3737612; 506998, 3737324; 507521, 3736810; 507732, 
3736601; 507738, 3736595; 507957, 3736381; 507957, 3736381; 507995, 
3736344; 508001, 3736338; 508047, 3736292; 508048, 3736291; 508218, 
3736124; 508304, 3736040; 508329, 3736015; 508329, 3736015; 508329, 
3736013; 508329, 3735915; 508354, 3735915; 508441, 3735915; 508519, 
3735915; 508840, 3735916; 508960, 3735917; 509020, 3735917; 509160, 
3735917; 509160, 3735917; 509655, 3735918; 509951, 3735919; 509951, 
3735919; 510024, 3735919; 510142, 3735920; 510353, 3735749; 510396, 
3735714; 510412, 3735701; 510501, 3735629; 510368, 3735629; 510301, 
3735629; 510293, 3735629; 510291, 3735629; 510165, 3735633; 510165, 
3735633; 509979, 3735640; 509979, 3735640; 509971, 3735641; 509971, 
3735624; 509952, 3735623; 509952, 3735602; 509949, 3735602; 509949, 
3735602; 509784, 3735596; 509719, 3735596; 509617, 3735602; 509524, 
3735604; 509480, 3735596; 509443, 3735573; 509408, 3735545; 509382, 
3735562; 509352, 3735581; 509330, 3735592; 509327, 3735616; 509327, 
3735616; 509324, 3735641; 509248, 3735672; 509247, 3735672; 509176, 
3735701; 509181, 3735746; 509171, 3735752; 509171, 3735752; 509152, 
3735762; 509152, 3735767; 509152, 3735767; 509148, 3735767; 509142, 
3735767; 509142, 3735767; 509058, 3735769; 509058, 3735767; 509058, 
3735767; 509058, 3735767; 509027, 3735767; 508961, 3735766; 508870, 
3735766; 508840, 3735766; 508840, 3735758; 508840, 3735758; 508840, 
3735758; 508825, 3735758; 508825, 3735707; 508657, 3735707; 508657, 
3735704; 508653, 3735704; 508629, 3735704; 508629, 3735704; 508648, 
3735667; 508648, 3735665; 508654, 3735621; 508429, 3735619; 508428, 
3735633; 508428, 3735633; 508423, 3735710; 508423, 3735710; 508422, 
3735731; 508422, 3735732; 508422, 3735733; 508421, 3735734; 508421, 
3735734; 508331, 3735816; 508331, 3735816; 508288, 3735855; 508000, 
3735892; 507945, 3735913; 507945, 3735913; 507945, 3735914; 507944, 
3735930; 507944, 3735939; 507944, 3735940; 507944, 3735951; 507890, 
3735951; 507809, 3735986; 507771, 3736006; 507771, 3736006; 507745, 
3735996; 507722, 3736011; 507715, 3736008; 507712, 3736010; 507693, 
3736022; 507672, 3736036; 507655, 3736048; 507654, 3736048; 507618, 
3736009; 507652, 3735977; 507636, 3735969; 507544, 3736055; 507524, 
3736074; 507371, 3736215; 507369, 3736214; 507355, 3736228; 507025, 
3736541; 507002, 3736563; 506978, 3736586; 506896, 3736665; 506895, 
3736666; 506895, 3736666; 506894, 3736667; 506894, 3736667; 506893, 
3736667; 506893, 3736668; 506893, 3736668; 506892, 3736669; 506892, 
3736669; 506891, 3736670; 506891, 3736670; 506890, 3736670; 506890, 
3736671; 506889, 3736671; 506889, 3736672; 506889, 3736672; 506888, 
3736672; 506888, 3736673; 506887, 3736673; 506887, 3736674; 506886, 
3736674; 506886, 3736675; 506886, 3736675; 506885, 3736675; 506885, 
3736676; 506884, 3736676; 506884, 3736677; 506883, 3736677; 506883, 
3736677; 506869, 3736663; 506869, 3736663; 506724, 3736806; 506739, 
3736807; 506748, 3736807; 506751, 3736807; 506752, 3736807; 506752, 
3736807; 506765, 3736807; 506778, 3736807; 506778, 3736807; 506778, 
3736807; 506770, 3736815; 506716, 3736868; 506716, 3736900; 506715, 
3736937; 506731, 3736949; 506729, 3736952; 506716, 3736970; 506715, 
3736970; 506715, 3736972; 506715, 3736974; 506707, 3736985; 506701, 
3736993; 506694, 3737002; 506668, 3737036; 506648, 3737116; 506620, 
3737156; 506615, 3737164; 506590, 3737200; 506476, 3737373; 506471, 
3737380; 506467, 3737386; 506459, 3737399; 506456, 3737403; 506450, 
3737411; 506446, 3737418; 506446, 3737418; 506442, 3737424; 506434, 
3737437; 506429, 3737444; 506425, 3737449; 506417, 3737462; 506408, 
3737475; 506408, 3737476; 506400, 3737488; 506397, 3737492; 506393, 
3737498; 506386, 3737508; 506385, 3737510; 506380, 3737518; 506376, 
3737524; 506373, 3737528; 506367, 3737538; 506366, 3737538; 506360, 
3737549; 506354, 3737556; 506353, 3737559; 506349, 3737564; 506346, 
3737569; 506345, 3737571; 506339, 3737579; 506333, 3737589; 506329, 
3737594; 506326, 3737599; 506323, 3737603; 506319, 3737610; 506318, 
3737611; 506317, 3737612; 506317, 3737612; 506314, 3737618; 506312, 
3737620; 506311, 3737622; 506306, 3737630; 506302, 3737636; 506299, 
3737640; 506292, 3737650; 506292, 3737650; 506292, 3737650; 506109, 
3737926; 506080, 3737971; 506052, 3738016; 505994, 3738113; 505995, 
3738113; 505995, 3738114; 506106, 3738189; 506117, 3738196; thence 
returning to 506117, 3738196; excluding land bounded by 507244, 
3736626; 507246, 3736530; 507151, 3736624; 507002, 3736775; 506778, 
3737041; 506775, 3737110; 506775, 3737110; 506768, 3737316; 507008, 
3737084; 507241, 3736853; 507241, 3736809; 507244, 3736626; 507244, 
3736626; land bounded by 506873, 3736759; 506883, 3736769; 506937, 
3736716; 506914, 3736692; 506905, 3736683; 506851, 3736737; 506873, 
3736759; land bounded by 507074, 3736530; 507114, 3736572; 507169, 
3736519; 507129, 3736477; 507074, 3736530; land bounded by 507292, 
3736320; 507327, 3736358; 507375, 3736313; 507339, 3736275; 507292, 
3736320; land bounded by 507567, 3736120; 507544, 3736096; 507537, 
3736088; 507524, 3736101; 507504, 3736120; 507524, 3736141; 507535, 
3736152; 507538, 3736149; 507544, 3736143; 507568, 3736120; 507567, 
3736120; and returning to and including land bounded by 510729, 
3735445; 510775, 3735408; 510878, 3735324; 510994, 3735230; 510994, 
3735230; 511017, 3735232; 511327, 3735248; 511343, 3735215; 511435, 
3735139; 511546, 3735076; 511550, 3735073; 511550, 3735073; 511553, 
3734778; 511588, 3734750; 511971, 3734440; 511995, 3734420; 512002, 
3734415; 512033, 3734390; 512088, 3734345; 512215, 3734346; 512565, 
3734349; 512578, 3734345; 512683, 3734285; 512783, 3734259; 512783, 
3734259; 513126, 3734171; 513126, 3734171; 513191, 3734155; 513199, 
3734149; 513199, 3734140; 513211, 3734141; 513292, 3734082; 513382, 
3734051; 513385, 3733950; 513512, 3733950; 513567, 3733938; 513574, 
3733895; 513579, 3733858; 513629, 3733843; 513714, 3733840; 513831, 
3733840; 513914, 3733835; 513976, 3733825; 514016, 3733808; 514056, 
3733768; 514118, 3733738; 514158, 3733698; 514193, 3733658; 514241, 
3733626; 514277, 3733575; 514276, 3733574; 514276, 3733574; 514252, 
3733558; 514225, 3733508; 514221, 3733450; 514206, 3733358; 514193, 
3733245; 514180, 3733248; 514180, 3733248; 514180, 3733248; 514140, 
3733259; 514140, 3733259; 514140, 3733259; 513906, 3733320; 513906, 
3733320; 513906, 3733320; 513889, 3733324; 513874, 3733327; 513874, 
3733327; 513726, 3733357; 513576, 3733387; 513575, 3733387; 513575, 
3733387; 513575,

[[Page 33841]]

3733387; 513575, 3733387; 513574, 3733387; 513574, 3733387; 513574, 
3733387; 513574, 3733387; 513573, 3733387; 513573, 3733387; 513573, 
3733387; 513572, 3733387; 513572, 3733387; 513572, 3733388; 513572, 
3733388; 513571, 3733388; 513571, 3733388; 513571, 3733388; 513570, 
3733388; 513570, 3733388; 513570, 3733388; 513569, 3733388; 513569, 
3733388; 513569, 3733388; 513568, 3733388; 513568, 3733388; 513568, 
3733388; 513567, 3733388; 513567, 3733388; 513567, 3733389; 513567, 
3733389; 513566, 3733389; 513566, 3733389; 513566, 3733389; 513565, 
3733389; 513565, 3733389; 513565, 3733389; 513564, 3733389; 513564, 
3733389; 513564, 3733389; 513563, 3733389; 513563, 3733389; 513563, 
3733389; 513563, 3733389; 513562, 3733389; 513562, 3733389; 513561, 
3733390; 513561, 3733390; 513561, 3733390; 513561, 3733390; 513560, 
3733390; 513560, 3733390; 513560, 3733390; 513559, 3733390; 513559, 
3733390; 513559, 3733390; 513558, 3733390; 513558, 3733390; 513558, 
3733390; 513557, 3733390; 513557, 3733390; 513557, 3733390; 513556, 
3733390; 513556, 3733391; 513555, 3733391; 513555, 3733391; 513555, 
3733391; 513555, 3733391; 513554, 3733391; 513554, 3733391; 513554, 
3733391; 513553, 3733391; 513553, 3733391; 513553, 3733391; 513553, 
3733391; 513546, 3733555; 513545, 3733561; 513545, 3733561; 513542, 
3733573; 513542, 3733573; 513521, 3733653; 513473, 3733663; 513403, 
3733637; 513213, 3733634; 513203, 3733786; 513199, 3733786; 513199, 
3733786; 513127, 3733787; 513127, 3733787; 512790, 3733789; 512790, 
3733789; 512773, 3733790; 512762, 3733799; 512761, 3733799; 512715, 
3733780; 512686, 3733768; 512686, 3733768; 512644, 3733756; 512594, 
3733733; 512405, 3733829; 512396, 3733863; 512396, 3733863; 512394, 
3733869; 512355, 3733899; 512348, 3733910; 512325, 3733924; 512317, 
3733928; 512216, 3734006; 512194, 3734024; 512172, 3734042; 512160, 
3734052; 512129, 3734077; 512127, 3734078; 512125, 3734080; 512112, 
3734090; 512096, 3734102; 512056, 3734133; 511989, 3734147; 511971, 
3734150; 511953, 3734154; 511946, 3734160; 511937, 3734167; 511891, 
3734202; 511882, 3734209; 511837, 3734248; 511809, 3734261; 511806, 
3734263; 511789, 3734265; 511789, 3734265; 511707, 3734276; 511696, 
3734280; 511686, 3734283; 511669, 3734289; 511659, 3734293; 511606, 
3734338; 511597, 3734347; 511588, 3734356; 511588, 3734418; 511588, 
3734418; 511589, 3734418; 511643, 3734472; 511698, 3734540; 511673, 
3734540; 511687, 3734557; 511689, 3734573; 511619, 3734643; 511538, 
3734688; 511449, 3734714; 511275, 3734818; 511275, 3734819; 511257, 
3734829; 510979, 3735062; 510979, 3735062; 510792, 3735219; 510792, 
3735219; 510776, 3735233; 510776, 3735233; 510750, 3735255; 510739, 
3735274; 510718, 3735407; 510718, 3735407; 510717, 3735409; 510709, 
3735426; 510709, 3735426; 510698, 3735450; 510698, 3735450; 510688, 
3735471; 510688, 3735471; 510682, 3735483; 510682, 3735483; 510693, 
3735474; 510715, 3735457; thence returning to 510729, 3735445.
    (ii) Note: Map of Unit 3--San Jacinto River Wash (Map 4) follows:
BILLING CODE 4310-55-P

[[Page 33842]]

[GRAPHIC] [TIFF OMITTED] TP19JN07.003

* * * * *

    Dated: June 1, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 07-2823 Filed 6-18-07; 8:45 am]
BILLING CODE 4310-55-C