[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Rules and Regulations]
[Pages 61936-62002]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-23515]



[[Page 61935]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



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

  Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / 
Rules and Regulations  

[[Page 61936]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0008; 92210-1117-0000-FY08 B4]
RIN 1018-AV07


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating final revised critical habitat for the San Bernardino 
kangaroo rat (Dipodomys merriami parvus) under the Endangered Species 
Act of 1973, as amended (Act). Approximately 7,779 acres (ac) (3,148 
hectares (ha)) of habitat in San Bernardino and Riverside Counties, 
California, are being designated as critical habitat for the San 
Bernardino kangaroo rat. This final revised designation constitutes a 
reduction of approximately 25,516 ac (10,326 ha) from the 2002 
designation of critical habitat for the San Bernardino kangaroo rat.

DATES: This rule becomes effective on November 17, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat will be available on the Internet at http://www.regulations.gov 
and http://www.fws.gov/carlsbad/. Supporting documentation we used in 
preparing this final rule will be available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-
5901.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). If you use a telecommunications device for the deaf 
(TDD), call the Federal Information Relay Service (FIRS) at 800-877-
8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat for the San Bernardino kangaroo rat 
in this final rule. For more information on the taxonomy, 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), the original final critical habitat rule published in the 
Federal Register on April 23, 2002 (67 FR 19812), the proposed rule to 
revise critical habitat published in the Federal Register on June 19, 
2007 (72 FR 33808), and the April 16, 2008, notice of availability of 
the draft economic analysis (DEA) and changes to the proposed rule (73 
FR 20581).

Subspecies Description, Life History, Distribution, Ecology, and 
Habitat

    No new substantial information pertaining to the subspecies 
description, life history, distribution, ecology, or habitat of the San 
Bernardino kangaroo rat was received following the 2007 proposed rule 
to revise critical habitat for this subspecies. Therefore, please refer 
to the final listing rule published in the Federal Register on 
September 24, 1998 (63 FR 51005), and the proposed rule to revise 
critical habitat published in the Federal Register on June 19, 2007 (72 
FR 33808), for a discussion of the subspecies' description, life 
history, distribution, ecology, and habitat.

Previous Federal Actions

    As discussed in the proposed rule to revise critical habitat for 
this subspecies, the Service agreed, as part of a settlement agreement, 
to submit to the Federal Register a proposal to revise critical 
habitat, if prudent, on or before June 1, 2007, and a final rule by 
June 1, 2008, which was later extended to October 1, 2008. We published 
a proposed rule to revise critical habitat in the Federal Register on 
June 19, 2007 (72 FR 33808), and announced the first public comment 
period on the proposed rule. On December 11, 2007 (72 FR 70284), we 
opened a second public comment period on the proposed rule and 
announced our intention to hold two public hearings on the proposed 
rule that were held in San Bernardino, California, on January 10, 2008. 
On April 16, 2008, we published in the Federal Register a notice of 
availability (NOA) announcing the availability of the DEA (dated 
February 6, 2008), opening the third public comment period on the 
proposed rule to revise critical habitat, and announcing changes to the 
proposed rule (73 FR 20581). In addition, on July 29, 2008, we 
published in the Federal Register an NOA announcing the availability of 
an Addendum to the Economic Analysis, opening a fourth public comment 
period (73 FR 43910). This final rule completes our obligations under 
the March 23, 2006, settlement agreement regarding the subject 
subspecies. For a discussion of additional 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).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed rule 
to revise critical habitat for the San Bernardino kangaroo rat during 
four comment periods. The first comment period opened June 19, 2007 (72 
FR 33808), associated with the publication of the proposed rule, and 
closed August 20, 2007. We received one request for a public hearing 
during this comment period. The second comment period opened December 
11, 2007 (72 FR 70284), associated with the publication of a notice of 
public hearings that were held January 10, 2008, and closed January 25, 
2008. The third comment period opened April 16, 2008 (73 FR 20581), 
associated with the notice of availability of the DEA, and closed May 
16, 2008. The fourth comment period opened July 29, 2008 (73 FR 43910), 
associated with the availability of an addendum to the economic 
analysis, and closed August 13, 2008. During these four public comment 
periods, we contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule to revise critical habitat for this 
subspecies and the associated DEA.
    During the first comment period, we received 12 public comments 
directly addressing the proposed revision of critical habitat: 1 from a 
Federal agency, 1 from a local government, 9 from organizations, and 1 
from an individual. During the second comment period and the January 
10, 2008, public hearings, we received 29 comments directly addressing 
the proposed revision of critical habitat for this subspecies: 4 from 
local governments, 6 from organizations, and 19 from individuals. 
During the third comment period, we received 3 comments directly 
addressing the proposed revision of critical habitat for this 
subspecies and/or the DEA: 1 from a Federal agency and 2 from 
organizations. During the fourth comment period, we received 5 comments 
directly addressing the proposed revision of critical habitat for

[[Page 61937]]

the San Bernardino kangaroo rat and/or the DEA: 3 from organizations, 
and 2 from individuals.

Peer Review

    In accordance with our policy on peer review in Act (16 U.S.C. 1531 
et seq.) activities, published on July 1, 1994 (59 FR 34270), we 
solicited expert opinions from five knowledgeable individuals with 
scientific expertise that included familiarity with the subspecies, the 
geographic region in which it occurs, and conservation biology 
principles. We received responses from two of the peer reviewers. The 
peer reviewers generally concurred with our methods and conclusions and 
indicated that the Service did a thorough job of delineating critical 
habitat using the best available scientific information.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding the 
designation of critical habitat for the San Bernardino kangaroo rat. 
All public comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment 1: One peer reviewer commented that in the 2007 proposed 
rule to revise critical habitat, the Service's non-inclusion of areas 
designated as critical habitat in 2002 was not supported in the 
document with empirical data or some type of population viability 
modeling.
    Our Response: Our revised critical habitat designation is 
substantially smaller than the 2002 critical habitat designation. Given 
the new information that became available to us in the five years since 
the previous designation, we find that we erroneously designated some 
areas. Areas previously designated in 2002 but not designated in this 
revised rule do not meet the definition of critical habitat. The 
changes in this rule are due to several factors. Better biological 
information allowed us to more specifically define primary constituent 
elements (PCEs) for this species, and site visits in December 2006 and 
January 2007 allowed us to more precisely define the areas that meet 
the definition of critical habitat on the ground. This allowed us to 
remove areas that do not meet our criteria for identifying the physical 
or biological features that are essential to the conservation of the 
species. The 2002 critical habitat designation included areas in which 
few occurrences were recorded. Such areas of low-density occupation or 
sporadic occupancy were removed from the proposed revised designation 
because they do not support core populations (i.e., areas where the 
subspecies has been repeatedly detected through live trapping). 
Finally, we employed refined mapping techniques in the current revision 
to more precisely map areas that contain PCEs. This more refined 
approach allowed us to remove areas that do not meet the definition of 
critical habitat. See the ``Summary of Changes From the 2002 Critical 
Habitat Designation'' and ``Criteria Used To Identify Critical 
Habitat'' sections of this final rule for more information.
    We based the proposed revision of critical habitat for the San 
Bernardino kangaroo rat on the best available scientific and commercial 
data including peer-reviewed published literature, gray literature 
(non-published or non-peer-reviewed survey or research reports), survey 
information, Geographic Information System coverage data, and site 
visits with subspecies experts. We delineated proposed critical habitat 
using criteria based on the biological needs of the subspecies 
according to the best available science. Application of these criteria 
(see ``Criteria Used To Identify Critical Habitat'' section of this 
final rule) results in the determination of the physical and biological 
features that are essential to the conservation of this subspecies, as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the subspecies. The areas 
proposed as critical habitat: (1) Support core populations that are 
considered necessary for conservation of the subspecies including areas 
demographically disconnected from the largest populations, but which 
may be important for the long-term conservation of the subspecies; and 
(2) include non-degraded alluvial fans, washes, floodplains, and 
adjacent upland areas with appropriate soils and vegetation. At this 
time, a population viability analysis has not been completed for the 
San Bernardino kangaroo rat. When delineating critical habitat for the 
San Bernardino kangaroo rat, we used the best available scientific 
information to determine those areas containing the features essential 
to its conservation.
    Comment 2: One peer reviewer commented on the reduction of critical 
habitat from what was designated in 2002. The peer reviewer stated that 
the 2007 proposed rule to revise critical habitat explains that this 
reduction is a result of additional knowledge about specific habitat 
requirements and occurrence data. The peer reviewer further questioned 
if the 2002 critical habitat designation was too superficial as a 
result of being rushed, or if the 2007 proposed revision to the 
critical habitat designation is overly conservative. The peer reviewer 
also suggested that we provide additional rationale for not designating 
areas with low population density or low habitat quality.
    Our Response: The Act defines critical habitat as (1) the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical or biological features 
(a) essential to the conservation of the species, and (b) which may 
require special management considerations or protection, and (2) 
specific areas outside the geographical area occupied by the species at 
the time it is listed upon a determination by the Secretary that such 
areas are essential for the conservation of the species. The reduction 
in total area from what was designated in 2002 is primarily the result 
of: (1) Exclusions of habitat under section 4(b)(2) of the Act; (2) 
revision of the primary constituent elements: (3) revision of our 
criteria used to identify critical habitat; and (4) removal of lands 
within the geographical area occupied by the subspecies at the time it 
was listed that do not contain the physical or biological features as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the subspecies.
    In 2002, we used the best available scientific information at that 
time to delineate critical habitat and do not consider the 2002 
designation to be ``superficial.'' However, as acknowledged by the peer 
reviewer, we have significant additional occurrence data and knowledge 
about specific habitat requirements of this subspecies that was not 
known when we first designated critical habitat for the San Bernardino 
kangaroo rat in 2002. We utilized this data to appropriately revise the 
primary constituent elements and criteria used to identify critical 
habitat consistent with the statutory obligations of the Act. In 
addition, since 2002, case law has developed that has helped to further 
our understanding of the statutory obligations of the Act and the 
definition of critical habitat (e.g., The Cape Hatteras Access 
Preservation Alliance v. U.S. Dep't of the Interior, 344 F. Supp. 2d 
108 (D.D.C. 2004); Home Builders Ass'n of N. Cal. v. U.S. Fish and 
Wildlife Service, U.S. Dist. LEXIS 80255 (E.D. Cal. 2006); and Arizona 
Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013 (D. Ariz. 
2008)). Thus, we have refined our approach to this critical habitat 
designation to insure compliance with the Act, including the 
identification of the geographical areas occupied by the subspecies at 
the time of listing, the

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identification of physical or biological features (and primary 
constituent elements) essential to the conservation of the subspecies, 
determination of any areas outside the geographical area occupied by 
the subspecies at the time of listing that are essential for the 
conservation of the subspecies, and appropriate exclusions under 
section 4(b)(2) of the Act. A complete discussion of how data collected 
since the 2002 designation was utilized to refine the proposed 
designation can be found in the ``Summary of Changes From the 2002 
Critical Habitat Designation'' and ``Summary of Changes From the 2007 
Proposed Rule To Revise Critical Habitat'' sections of this final rule.
    As discussed in the ``Criteria Used To Identify Critical Habitat'' 
section of this final rule, we delineated critical habitat for the San 
Bernardino kangaroo rat using the following criteria: (1) Areas 
occupied by the subspecies at the time of listing, and currently 
occupied, within the historical range of the subspecies; (2) areas 
retaining fluvial dynamics containing one or more of the PCEs for the 
subspecies; (3) areas supporting a core population of the subspecies; 
and (4) areas demographically disconnected from the largest 
populations, but which may be important for the long-term recovery of 
the subspecies. Application of these criteria results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, identified as the 
subspecies' PCEs laid out in the appropriate quantity and spatial 
arrangement. Thus, not all areas supporting the identified PCEs will 
meet the definition of critical habitat. Specifically, as noted by the 
commenter, some areas occupied at low densities are not included in the 
final revised critical habitat designation. Areas occupied at low 
densities are not likely to contribute to recovery of the subspecies, 
and we do not have information suggesting that the areas in question 
support core populations or information suggesting these areas would be 
capable of supporting a core population in the near future.
    Conservation (i.e., recovery) is defined in section 3 of the Act as 
the ``use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to this Act are no longer necessary.'' In 
accordance with section 4(a)(1) of the Act, we determine if any species 
is an endangered or threatened species (or revise its listed status) 
because of any of the five threat factors identified in the Act (i.e., 
(A) present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence). Therefore, 
conservation, or recovery, is achieved when a five factor analysis 
indicates that current and future threats have been minimized to an 
extent that the species is no longer in danger of extinction or likely 
to become endangered in the foreseeable future. Recovery is a dynamic 
process requiring adaptive management of threats and there are many 
paths to accomplishing recovery of a species. We believe that the lands 
identified in this rule as meeting the definition of critical habitat 
are adequate to ensure the conservation of the San Bernardino kangaroo 
rat throughout its extant range based on the best available scientific 
information at this time.
    We recognize that some efforts that positively contribute to the 
conservation of this subspecies may occur outside the boundaries of 
this final designation; however, we do not believe that this 
designation is ``conservative.'' Rather, our proposed designation in 
combination with the NOA, which announced the addition of areas to the 
proposed designation, and this final designation accurately describe 
all specific areas meeting the statutory definition of critical habitat 
for the San Bernardino kangaroo rat. See the ``Summary of Changes From 
the 2002 Critical Habitat Designation'' and ``Summary of Changes From 
the 2007 Proposed Rule To Revise Critical Habitat'' sections of this 
final rule for more information.
    Comment 3: One peer reviewer commented that the Service's focus on 
core populations as a primary criterion for designating critical 
habitat is logical and appropriate. The reviewer further commented that 
while the core populations may be necessary for conservation of the San 
Bernardino kangaroo rat, they may not be sufficient in area or 
connectivity to achieve a reasonable probability of persistence in the 
face of periodic flooding and drought. Another peer reviewer commented 
that the proposed revision to critical habitat includes dispersal 
corridors and habitat connectivity necessary for the subspecies.
    Our Response: In this final revised designation we focused 
primarily on core populations in undisturbed habitat in the Santa Ana 
River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe 
that protecting these three largest core populations is necessary for 
the conservation of the San Bernardino kangaroo rat. In response to 
this and other comments, we revised our criteria to also capture 
occupied areas demographically disconnected from the three largest 
populations, but which may be important for the long-term conservation 
of the subspecies (for a detailed discussion see ``Criteria Used To 
Identify Critical Habitat'' section of this final rule). We then re-
evaluated the proposed critical habitat boundaries and included in the 
designation additional areas in Mill Creek, Plunge Creek, Cable Creek 
wash, and Bautista Creek. We are not designating small, isolated areas 
of degraded habitat or areas devoid of fluvial processes because such 
areas likely only support unsustainable populations that would not 
contribute to the recovery of the subspecies. We believe that with 
these revisions, we included sufficient lowland and upland alluvial 
sage scrub habitat within a sufficient number of critical habitat units 
to ensure connectivity and persistence of the subspecies following 
periodic flooding and drought.
    Comment 4: One peer reviewer had concerns about excluding areas 
from the critical habitat designation that are protected by a 
management or conservation agreement, particularly because the proposed 
exclusion of those areas increases the degree to which critical habitat 
in all three units is fragmented. This reviewer questioned whether 
proposed exclusions render the remaining critical habitat areas 
sufficient for the subspecies' recovery if management actions on the 
excluded areas fail to preserve their value to the subspecies. Another 
peer reviewer agreed with the logic of excluding from the final revised 
critical habitat designation areas that are covered by management plans 
that benefit the San Bernardino kangaroo rat, but the reviewer 
questioned whether monitoring would be conducted or reports would be 
required ensuring compliance with these plans, or whether the plans are 
having the desired effects.
    Our Response: Section 4(b)(2) of the Act directs the Secretary to 
designate critical habitat on the basis of the best scientific data 
available and after taking into consideration the economic impacts, 
national security impacts, and any other relevant impacts of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area

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as critical habitat, unless the failure to designate an area as 
critical habitat will result in the extinction of the species. The 
Service recognizes that 80 percent of federally listed species occur 
either partially or solely on private lands (Crouse et al. 2002) and we 
will only achieve recovery of federally listed species with the 
cooperation of private landowners. As discussed in the ``Conservation 
Partnerships on Non-Federal Lands'' section below, we believe that 
designation of critical habitat on private lands can negatively impact 
the working relationships and conservation partnerships we have formed 
with private landowners.
    In making the Woolly-Star Preserve Area (WSPA) Management Plans, 
the Former Norton Air Force Base Conservation Management Plan (CMP), 
the Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP), and the Cajon Creek Habitat Conservation Management Area 
Habitat Enhancement and Management Plan (Cajon Creek HCMA HEMP) 
exclusions, we evaluated the benefits of designating non-Federal lands 
that may not have a Federal nexus for consultation while considering if 
our existing partnerships have, or will, result in greater conservation 
benefits to the San Bernardino kangaroo rat and its habitat than would 
likely result from consultation on a designation. We balanced the 
benefits of inclusion against the benefits of exclusion (i.e., the 
benefits of preserving partnerships and encouraging development of 
additional HCPs and other conservation plans in the future). All areas 
excluded under 4(b)(2) that have completed habitat conservation plans 
(HCPs) or other Service-approved management plans receive long-term 
protection and conservation that provides equivalent or greater 
conservation benefit to the San Bernardino kangaroo rat than would 
likely result from including these areas in the designation, and the 
exclusion of lands covered by these plans will not jeopardize the 
continued existence of the subspecies. The conservation objectives in 
these plans for the San Bernardino kangaroo rat, and the implementation 
status of these plans to date, are discussed in the ``Exclusions Under 
Section 4(b)(2) of the Act'' section below. The conservation and 
management of San Bernardino kangaroo rat habitat as described in these 
management plans have reduced and will continue to remove or reduce 
known threats to the subspecies and its habitat, contributing to the 
survival and recovery of this subspecies. We believe the exclusions we 
made in this final revised rule are legally supported under section 
4(b)(2) of the Act and scientifically justified.
    The exclusion of critical habitat does not dismiss or lessen the 
value of these areas to the overall conservation of this subspecies. 
Rather, we believe that the judicious exclusion of specific areas of 
non-Federal lands from critical habitat designations, where we have 
developed close partnerships with non-Federal land owners that resulted 
in the development of HCPs or other voluntary conservation plans, can 
contribute to species recovery and provide a superior level of 
conservation than the designation of critical habitat alone. As 
described in detail in the ``Exclusions Under Section 4(b)(2) of the 
Act'' section below, we determined that the benefits of excluding areas 
covered by the WSPA Management Plans, the Former Norton Air Force Base 
CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP 
outweigh the benefits of designating these lands, and that these 
exclusions will not result in the extinction of the San Bernardino 
kangaroo rat. Surveys and monitoring will continue to be required for 
areas excluded based on completed management plans to ensure they are 
effective (see ``Areas Considered for Exclusion Under Section 4(b)(2) 
of the Act'' section below for more information).
    Comment 5: One peer reviewer discussed our identification of PCEs 
for the San Bernardino kangaroo rat, and specifically agreed that the 
PCEs are based on the best available science, and that the identified 
PCEs appropriately provide for the conservation of the subspecies.
    Our Response: The description of the PCEs for the San Bernardino 
kangaroo rat is based on the best available scientific and commercial 
data regarding the subspecies, including a compilation of data from 
peer-reviewed, published literature; unpublished or non-peer reviewed 
survey and research reports; and opinions of biologists knowledgeable 
about the San Bernardino kangaroo rat and its habitat. Consequently, 
the PCEs, as described in this final rule, represent our best 
assessment of what habitat components, in the appropriate quantity and 
spatial arrangement, are essential to the conservation of the 
subspecies.

Public Comments

Comments Related to Criteria Used To Identify Critical Habitat
    Comment 6: Two commenters stated that the proposed rule is flawed 
because it fails to include several significant areas of occupied 
habitat previously designated as critical habitat in 2002 that support 
one or more of the PCEs: (1) Three areas in the Santa Ana River wash; 
(2) the Etiwanda Fan; (3) four areas in Cajon/Lytle Creeks; and (4) two 
areas in the San Jacinto River. The commenters stated that the Service 
provided no data to support the conclusion that these areas are not 
occupied by the subspecies (e.g., trapping data) or do not contain the 
PCEs. They further stated that several areas (i.e., Etiwanda Fan, areas 
in Cajon/Lytle Creeks) that were not included in the proposed 
designation are currently occupied to some extent and, therefore, must 
contain the PCEs required by the species. One commenter stated that all 
populations inclusive of peripheral populations are essential for 
recovery and that not including all occupied areas as critical habitat 
will continue to fragment and drive the species closer to the brink of 
extinction.
    Another commenter stated that according to a review of occurrence 
information for the San Bernardino kangaroo rat and habitat assessments 
conducted in 2007, the following areas are currently occupied by the 
subspecies and contain the PCEs, and therefore, should have been 
included in the proposed designation: (1) Three areas along Plunge 
Creek in the Santa Ana River watershed; (2) one area in the Santa Ana 
River; (3) one area in Lytle Creek; (4) Cable Creek in the Lytle/Cajon 
Creeks watershed; (5) Bautista Creek in the San Jacinto River 
watershed; and (6) the Etiwanda Fan. Several commenters also called for 
the reevaluation of Plunge Creek, the Santa Ana River in Redlands, 
Lytle Creek near the 210 Freeway, Cable Creek, and the Etiwanda Fan.
    Certain areas that were not included in the June 19, 2007, proposed 
revision to critical habitat (72 FR 33808) were commented on more 
frequently than others mentioned above: Specifically, Plunge Creek, 
Mill Creek, the Cable Creek wash, and Bautista Creek. Multiple comments 
received during the first two comment periods and the public hearings, 
including comments received from biologists familiar with the San 
Bernardino kangaroo rat, indicated the importance of these areas as 
confirmed occupied habitat containing the PCEs, and which retain 
fluvial input and that may be necessary for the long-term conservation 
of the subspecies.
    Our Response: For a detailed discussion of the areas previously 
designated as critical habitat that are not included in this revised 
designation, see the ``Summary of Changes From the

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2002 Critical Habitat Designation'' section of this final rule. Under 
section 3(5)(C) of the Act, critical habitat shall not include the 
entire geographical area which can be occupied by the species unless 
otherwise determined by the Secretary. Critical habitat is defined in 
section 3 of the Act as (1) the specific areas within the geographical 
area occupied by a species, at the time it is listed in accordance with 
the Act, on which are found those physical or biological features (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical area occupied by a species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. In developing the proposed rule to revise 
critical habitat, we considered the geographical area occupied by the 
subspecies at the time of listing, and within that broad geographical 
area, identified those areas that, based on the best available 
scientific and commercial data, contain the physical and biological 
features essential to the subspecies' conservation. We believe that our 
proposed designation, including changes to the proposed designation 
outlined in the April 16, 2008, NOA (73 FR 20581), and this final 
designation accurately describe all areas meeting the definition of 
critical habitat for the San Bernardino kangaroo rat.
    As discussed in the proposed rule to revise critical habitat and 
the April 16, 2008, NOA announcing changes to the proposed rule, we 
identified critical habitat for this subspecies based on several 
criteria. Application of these criteria (see ``Criteria Used To 
Identify Critical Habitat'' section of this final rule) results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, as identified by the 
PCEs in the appropriate quantity and spatial arrangement essential to 
the conservation of the subspecies. Thus, not all areas supporting the 
identified PCEs will meet the definition of critical habitat. The areas 
designated as critical habitat (1) support core populations that are 
considered necessary for conservation of the subspecies, including 
areas demographically disconnected from the largest populations that 
may be important for the long-term conservation of the subspecies; and 
(2) include non-degraded alluvial fans, washes, floodplains, and 
adjacent upland areas with appropriate soils and vegetation.
    We recognize that our designation does not encompass all known 
occurrences of this subspecies as noted by the commenters. Small, 
isolated areas of degraded habitat or areas devoid of fluvial processes 
are likely to only support unsustainable populations that would not 
contribute to the recovery of the subspecies. Although we are not 
designating all known occurrences of the San Bernardino kangaroo rat, 
we believe the criteria we used to identify areas that contain the 
features essential to the conservation of the subspecies, and which are 
included in the final revised critical habitat designation, are 
adequate to ensure the conservation of the subspecies throughout its 
extant range. Species that are protected across their ranges are 
expected to have lower likelihoods of extinction (Soule and Simberloff 
1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating 
multiple locations across the range of the subspecies to prevent range 
collapse.
    In light of significant comments received during the comment 
periods for the proposed rule on areas that are essential to the 
subspecies and should be included in the designation, and new 
information received, we revised our criteria used to identify critical 
habitat to capture additional self-sustaining populations of San 
Bernardino kangaroo rats necessary for recovery (see ``Criteria Used To 
Identify Critical Habitat'' section below for more information). We 
then re-evaluated the proposed critical habitat boundaries and included 
in the designation additional areas in Mill Creek, Plunge Creek 
(including areas providing habitat connectivity of the Plunge Creek 
wash with the Santa Ana River wash), Cable Creek wash, and Bautista 
Creek. These areas are currently designated as critical habitat for the 
San Bernardino kangaroo rat (67 FR 19812, April 23, 2002); however, we 
did not propose these areas as critical habitat in the June 19, 2007 
(73 FR 33808), proposed revision to critical habitat, but announced the 
addition of these areas as changes to the proposed rule in the April 
16, 2008, NOA. See the ``Summary of Changes From the 2007 Proposed Rule 
to Revise Critical Habitat'' and the ``Unit Descriptions'' sections of 
this final rule for more information.
    Comment 7: One commenter indicated concerns about the following 
statement made in the proposed rule: ``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.'' The 
commenter indicated that these areas should be included in critical 
habitat and further stated that no data was presented in the proposed 
rule indicating that these areas are no longer occupied, no longer 
contain the PCEs; and if degraded, how these areas have become degraded 
over the last five years.
    Our Response: In the 2007 proposed rule, we discussed an integrated 
water recharge and recovery program to be implemented by Eastern 
Municipal Water District at the confluence of the San Jacinto River and 
Bautista Creek within existing critical habitat Unit 3. The project was 
expected to impact approximately 37 ac (15 ha) of floodplain and upland 
habitat (Service 2006, p. 21). The Service issued a biological opinion 
for this project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5), 
which found that the proposed action would not jeopardize the continued 
existence of the subspecies nor adversely modify the currently 
designated critical habitat. Although Map 4 of the proposed rule (72 FR 
33808) depicts these lands within the boundary of proposed critical 
habitat Unit 3, the text of the proposed rule explained that we were 
not proposing to include these lands as revised critical habitat 
because they had been addressed by the section 7 consultation and 
biological opinion, and the proposed action would permanently impact 
this habitat. The water recharge and recovery program lands total 
approximately 39 ac (16 ha), not 37 ac (15 ha) as previously reported 
in the proposed rule (72 FR 33808), all of which are currently 
designated as critical habitat for the San Bernardino kangaroo rat. 
These approximately 39 ac (16 ha) of lands are divided into five 
individual outparcels ranging in size from less than an acre to 35 ac 
(14 ha) and each areas is surrounded by other lands that we did include 
in the proposed revision to designated critical habitat. The commenter 
is correct in pointing out that this area has not yet been developed 
and the area does currently contain the physical and biological 
features essential to the conservation of this subspecies, as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement. Furthermore, as indicated in the biological opinion, we 
are aware that this area is occupied.
    Following publication of the proposed rule to revise the critical 
habitat designation, several surveys were conducted within these 39 ac 
(16 ha) in association with the integrated water recharge and recovery 
project. These surveys have indicated that the population of San 
Bernardino kangaroo rats in these areas is larger than previously 
believed and exceeds what we estimated the population to be in

[[Page 61941]]

2006. Based on these survey results, the Army Corps of Engineers 
requested that we re-initiate consultation on this project. Because 
these lands are currently designated as critical habitat and the maps 
indicating areas proposed as critical habitat included these areas (72 
FR 33808), and in light of the public comment, new survey data and re-
initiation of consultation on the Eastern Municipal Water District 
project, we included these 39 ac (16 ha) in Unit 3 as lands that meet 
the definition of critical habitat. We believe that inclusion of these 
39 ac (16 ha) is a logical outgrowth of the proposed rule and is 
scientifically sound and legally justified. We determined, however, 
that these 39 ac (16 ac) should be excluded from the final critical 
habitat designation under section 4(b)(2) of the Act. See the ``Summary 
of Changes From the 2007 Proposed Rule To Revise Critical Habitat'' and 
``Exclusions Under Section 4(b)(2) of the Act'' sections of this final 
rule for more information.
    Comment 8: Several commenters stated that the Service cannot focus 
primarily on its definition of core populations (i.e., areas where the 
subspecies was repeatedly detected through live trapping) when false 
negatives occur from live trapping surveys 20 percent of the time. They 
further stated that the Service's definition of core populations is 
inappropriate, would result in substantial San Bernardino kangaroo rat 
populations being excluded from critical habitat, and should be 
redefined. A number of commenters suggested peripheral or sporadically 
occupied locations are essential for conservation of the subspecies. 
One commenter stated that areas currently having low populations should 
not be removed from critical habitat. The commenter stated that the 
Service's assertion that some viable San Bernardino kangaroo rat 
populations do not fit the definition of a core population, and are 
therefore less important, has no biological basis for an animal that 
has already lost 90 percent of its historical range. The commenter 
stated that by not including potential or occupied habitat that has 
been degraded as critical habitat would allow private landowners and 
public agencies the ability to further degrade those areas that are 
important to the conservation of the San Bernardino kangaroo rat.
    Our Response: As discussed in the ``Criteria Used To Identify 
Critical Habitat'' section of this final rule, we delineated critical 
habitat for the San Bernardino kangaroo rat using the following 
criteria: (1) Areas occupied by the subspecies at the time of listing, 
and currently occupied, within the historical range of the subspecies; 
(2) areas retaining fluvial dynamics containing one or more of the PCEs 
for the subspecies; (3) areas supporting a core population of the 
subspecies; and (4) areas demographically disconnected from the largest 
populations, but which may be important for the long-term recovery of 
the subspecies. Application of these criteria results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, identified as the 
species' PCEs laid out in the appropriate quantity and spatial 
arrangement. Thus, not all areas supporting the identified PCEs will 
meet the definition of critical habitat. Based on information provided 
in public comments, these criteria were revised after the June 19, 2007 
(72 FR 33808), proposed revision to critical habitat to capture 
essential features supporting additional self-sustaining populations of 
San Bernardino kangaroo rats (see ``Criteria Used To Identify Critical 
Habitat'' section below for more information). As a result, we added 
four areas totaling approximately 1,579 ac (639 ha) to the proposed 
revision as announced in the April 16, 2008 NOA (73 FR 20581). We 
believe our final designation accurately describes all specific areas 
meeting the definition of critical habitat for the San Bernardino 
kangaroo rat. We acknowledge that false negatives can occur from live 
trapping surveys for San Bernardino kangaroo rats; however, as required 
under the Act, we used the best available scientific information in 
determining areas occupied by this subspecies.
    We recognize that our designation of critical habitat for the San 
Bernardino kangaroo rat does not encompass all known occurrences of 
this subspecies as noted by the commenters. In this designation, we 
focused primarily on core populations (i.e., areas where the subspecies 
was repeatedly detected through live trapping) in undisturbed habitat 
in the Santa Ana River, Lytle/Cajon Creeks, and the San Jacinto River 
washes. We believe protecting the largest core populations is necessary 
for recovery of the subspecies. Small, isolated areas of degraded 
habitat or areas devoid of fluvial processes are likely to only support 
unsustainable populations that would not contribute to the recovery of 
this subspecies. Although we are not designating all known occurrences 
of the San Bernardino kangaroo rat, we believe our criteria are 
sufficient, and therefore the designation is adequate, to ensure the 
conservation of this subspecies throughout its extant range based on 
the best available information at this time. We recognize that the 
designation of critical habitat may not include all of the habitat that 
may eventually be determined to be necessary for the recovery of the 
subspecies, and critical habitat designations do not signal that 
habitat outside of the designation is unimportant or may not contribute 
to recovery. Areas outside the final critical habitat designations will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act, and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act.
    Comment 9: One commenter cited statements in the proposed rule that 
several areas were not included in the proposed designation because 
they ``contain habitat that has been degraded'' and requested 
justification as to why no regulatory mechanisms were triggered in the 
past to prevent habitat destruction in these areas since they were 
included in the 2002 designation.
    Our Response: As explained above in response to comment 2, the 
reduction in total area from what was designated in 2002 is primarily 
the result of: (1) Exclusions of habitat under section 4(b)(2) of the 
Act; (2) revision of the primary constituent elements; (3) revision of 
our criteria used to identify critical habitat; (4) and removal of 
lands within the geographical area occupied by the subspecies at the 
time it was listed that do not contain the physical or biological 
features as identified by the PCEs in the appropriate quantity and 
spatial arrangement essential to the conservation of the subspecies.
    We have significant additional occurrence data and knowledge about 
specific habitat requirements of this species that was not known when 
we first designated critical habitat for the San Bernardino kangaroo 
rat in 2002. We utilized this data to revise the primary constituent 
elements and criteria used to identify critical habitat consistent with 
the statutory obligations of the Act and applicable case law (see the 
``Summary of Changes From the 2002 Critical Habitat Designation'' 
section of this final rule for more information).
    As pointed out by the commenter, there are areas of currently 
designated critical habitat that were removed in part due to habitat 
degradation and/or the determination that the areas do not contain the 
physical and biological features essential to the conservation of this 
subspecies. Some of these areas likely did not support the physical and 
biological features essential to the

[[Page 61942]]

conservation of the subspecies in 2002, when critical habitat was first 
designated (see ``Summary of Changes'' section). We have revised the 
PCEs since the 2002 designation based on new information and a better 
understanding of the statutory obligations of the Act. Furthermore, we 
diligently reviewed all areas considered for designation to demonstrate 
existence of the physical and biological features essential to the 
conservation of this subspecies within the geographical area occupied 
by this subspecies at listing.
    Other areas have become degraded since critical habitat was 
designated. Critical habitat receives protection under section 7 of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) of the Act requires consultation on 
Federal actions that may affect critical habitat. However, there are a 
number of reasons why designated critical habitat can become degraded 
without triggering consultation.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Generally, habitat may degrade through time due to 
lack of management. A critical habitat designation does not force a 
landowner to manage their land to the benefit of a species. 
Furthermore, proposed projects or actions occurring in critical habitat 
that do not involve a Federal nexus are not subject to the section 7 
prohibition against destruction or adverse modification of critical 
habitat and, therefore, no consultation is required for those projects 
to occur. Where the consultation requirements of section 7(a)(2) do 
apply, an analysis would only result in a finding of destruction or 
adverse modification if the project was expected to impact the 
capability of the critical habitat unit as a whole to perform its 
conservation function for the subspecies. Projects may adversely impact 
the physical and biological features essential to the conservation of a 
species within a critical habitat unit without impairing the unit's 
conservation role and function for the species. For example, the 
Service completed formal section 7 consultation on the Lytle Creek 
North Master Planned Community in existing critical habitat Unit 2. In 
our Biological Opinion we determined that the proposed action was not 
likely to jeopardize the continued existence of the subspecies nor 
result in the destruction or adverse modification of critical habitat 
(Service 2003a, p. 45, FWS-SB-1640.11), even though the project 
resulted in the loss of some designated critical habitat. We have not 
consulted on any projects within designated critical habitat where we 
determined that project implementation would destroy or otherwise 
adversely modify critical habitat such that the designated unit could 
no longer properly function and support the essential features for 
which it was designated. Finally, in the event of a destruction or 
adverse modification finding, the landowner's obligation is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    Comment 10: Two commenters stated that critical habitat should 
include linkage corridors and address connectivity issues relevant to 
the San Bernardino kangaroo rat. One commenter stated that arguments in 
the proposed rule to remove specific areas within the Santa Ana River 
watershed show a limited understanding of the habitat needs and the 
corridor connectivity issues that are relevant to this subspecies. One 
commenter further stated that the critical habitat delineated in the 
proposed revision to critical habitat shows a limited, single-species 
perspective. Several commenters stated that continuity between 
populations must be maintained.
    One commenter stated that, through the proposed rule, fragments of 
critical habitat were created (i.e., Plunge Creek) and populations 
removed because they are believed to be isolated from perhaps larger 
populations (i.e., Etiwanda Fan, Cable Creek, and Bautista Creek) and 
that the goal for the designation should be to form linkages between 
occupied areas, which reduce genetic isolations, allow populations to 
re-colonize following local extinctions from stochastic events, and 
migrate in response to environmental change.
    Our Response: We agree that linkages are important to reduce 
genetic isolation and to allow for re-colonization and migration. 
Included in the criteria for defining the physical and biological 
features within occupied habitat for inclusion in the critical habitat 
designation are areas adjacent to and between San Bernardino kangaroo 
rat occurrence points that maintain connectivity of occurrences in one 
continuous patch of suitable habitat. We maintained connectivity of 
core populations within each of the proposed critical habitat units. 
However, in some areas there are geographical barriers to connectivity, 
such as manmade structures or large expanses of unsuitable habitat. 
These areas are not likely to support actual movement of San Bernardino 
kangaroo rats and do not contain the physical and biological features 
essential to the conservation of this subspecies, and therefore do not 
meet the definition of critical habitat and are not included in this 
final designation. As announced in the NOA for the draft economic 
analysis (73 FR 20581), we are including in the final revised critical 
habitat designation areas in and around Plunge and Mill Creeks to 
increase connectivity in Unit 1. Furthermore, we are including portions 
of Cable Creek (Unit 4) and Bautista Creek (Unit 5) in the designation 
of critical habitat as these areas may be important for the long-term 
conservation of this subspecies. See the ``Summary of Changes From the 
2007 Proposed Rule To Revise Critical Habitat'' and the ``Unit 
Descriptions'' sections of this final rule for more information.
    Designation of these areas within the Santa Ana River, Lytle/Cajon 
Creeks, and San Jacinto River watersheds is based on data and 
information received during the comment periods from these and other 
commenters and creates additional connectivity within the designation. 
We responded to all data and scientific information received during the 
comment periods and did not receive any other data indicating that 
additional areas within the Santa Ana River watershed, or elsewhere 
within the range of the San Bernardino kangaroo rat, meet the 
definition of critical habitat. We agree with the commenter that this 
final designation is limited in perspective to a single subspecies, the 
San Bernardino kangaroo rat. It is outside the scope of this final rule 
to address conservation need of other species within a single species 
critical habitat designation.
    Comment 11: One commenter asserted that the Service's statement in 
the 2007 proposed rule that channelized areas in the San Jacinto River 
prevent connectivity with core populations is unjustified, and that we 
provided no evidence indicating that the PCEs are not present or that 
these areas do not provide connectivity. Several commenters stated that 
channelized creeks (such as portions of Cable and Bautista creeks) 
should contain a natural bottom with islands of habitat that the 
subspecies could use as corridor habitat, utilizing patches of habitat 
as ``stepping stones'' and temporary refugia as they disperse.
    Our Response: Channelized areas are not included in this 
designation because they do not provide suitable habitat to sustain San 
Bernardino kangaroo rat populations beyond the next storm event, which 
could flood the channels

[[Page 61943]]

with high-velocity flows from bank to bank, eliminating populations 
within the channelized areas. Furthermore, we have no evidence to 
suggest that this subspecies utilizes channelized areas (some of which 
are lined with concrete) to successfully migrate between populations. 
We agree that channels with natural bottoms and islands of habitat 
could provide better opportunities for dispersal between populations. 
However, these ``stepping stones'' are not in place at this time, and 
we are not including these channelized areas in the designation of 
critical habitat as they do not currently meet the definition of 
critical habitat.
    Comment 12: One commenter stated that construction technologies 
should be explored that would create or sustain San Bernardino kangaroo 
rat habitat. The commenter also stated that a hydrologic analysis of 
the existing levees, detention basins, and other flood control 
structures should be completed to determine if these structures are 
still required. Another commenter stated that areas along the Santa Ana 
River are important, as re-engineering of flood control features can 
create appropriate conditions for the San Bernardino kangaroo rat.
    Our Response: We agree that flood control and water conservation 
structures contributed to the loss of suitable habitat for the San 
Bernardino kangaroo rat by altering hydrological processes, and we 
agree that sustaining areas where natural hydrological processes remain 
is important to the conservation of this subspecies. Although studies 
of construction technologies and investigations of the necessity for 
existing hydrological structures could benefit the conservation of this 
subspecies in the future, we do not currently have this information and 
we were not able to include an analysis of such information in making 
our designation of critical habitat. When delineating critical habitat 
for the San Bernardino kangaroo rat, we used the best available 
scientific information to determine those areas that meet the 
definition of critical habitat.
    Comment 13: One commenter stated that the proposed rule was flawed 
because the Service failed to include unoccupied areas for recovery. 
The commenter stated that the Service ignored the recovery goal of 
critical habitat by failing to include historical habitat that may not 
be currently occupied, but could provide an opportunity for the 
subspecies' recovery. The commenter further stated that the Service 
must consider and evaluate the recovery benefits of critical habitat 
designation in order to promulgate a legally valid critical habitat 
rule. One commenter stated that areas outside the geographical area 
occupied by the subspecies included in the 2002 designation are still 
essential to the conservation of the subspecies and should have been 
included in the 2007 proposed rule.
    Our Response: The Service may designate as critical habitat areas 
outside of the geographical area occupied by a species at the time it 
was listed when we can demonstrate that those areas are essential for 
the conservation of the species (section 3(5)(A)(ii) of the Act). 
Likewise, we can designate as critical habitat areas ``outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' (50 CFR 424.12(e)).
    Conservation (i.e., recovery) is achieved when a five factor 
analysis performed pursuant to section 4(a)(1) if the Act indicates 
that current and future threats have been minimized to an extent that 
the species is no longer threatened with extinction in the foreseeable 
future. Recovery is a dynamic process requiring adaptive management of 
threats and there are many paths to accomplishing recovery of a 
species. We recognize that it is unlikely that threats to this 
subspecies will be removed from all areas identified in this rule and 
that recovery efforts will occur outside the boundaries of this final 
designation; however, we believe that that conservation of this 
subspecies would be achieved if threats to this subspecies, as 
described in the ``Special Management Considerations or Protection'' 
section of this rule, were reduced or removed due to management and 
protection of those areas. Therefore, consistent with the statutory 
obligations of the Act and our implementing regulations we are not 
designating any unoccupied areas or areas outside the geographical area 
occupied by this subspecies at the time it was listed.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant or may not contribute to a species' 
recovery. Areas outside the final critical habitat designation will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act, and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. Critical habitat designations based on 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 information available at 
the time of those planning efforts calls for a different outcome. We 
recognize that the threats faced by this subspecies may change in the 
future; however, we base our critical habitat designations on the 
information available at the time of the designation and do not 
speculate as to what areas may be found essential if better information 
becomes available or what areas may become essential over time. The 
commenter did not include any specific data supporting their statement 
that unoccupied areas are essential for the recovery of the San 
Bernardino kangaroo rat and we are not aware of any studies or data 
that we did not consider. Should additional data become available, we 
may revise this critical habitat designation, subject to available 
funding and other conservation priorities.
    Contrary to the commenter's assertion, we note that all areas 
designated as critical habitat in 2002 were within the geographical 
area occupied by the species at the time of listing. For a detailed 
discussion regarding areas referenced by the commenter that were 
designated in 2002 but not included in this final revised designation, 
please see the ``Summary of Changes From the 2002 Critical Habitat 
Designation'' section of this final rule.
    Comment 14: One commenter stated that before the Service reduces 
critical habitat of a species that is already in peril, the Service 
should scientifically analyze if this reduction further jeopardizes the 
species' recovery and that a recovery plan, including a population 
viability analysis, should be completed for the San Bernardino kangaroo 
rat.
    Our Response: We agree that a recovery plan and a population 
viability analysis could provide useful information when considering a 
critical habitat designation; however, at this time, neither a recovery 
plan nor a population viability analysis was completed for the San 
Bernardino kangaroo rat. Given the timeframe in which we had to prepare 
this critical habitat rule, we did not have time to prepare a recovery 
plan or a population viability analysis for this subspecies; and the 
Act does not require the preparation of such analyses before critical 
habitat is designated. When delineating critical habitat for the San 
Bernardino kangaroo rat, we used the best available scientific 
information to determine those areas that meet the definition of 
critical habitat.

[[Page 61944]]

Comments Related to the Primary Constituent Elements
    Comment 15: One commenter stated that hydrological processes are an 
essential part of the alluvial fan sage scrub plant community and San 
Bernardino kangaroo rat habitat and, therefore, should be included as a 
PCE. The commenter further stated areas that provide necessary 
hydrology to down-stream alluvial fans and the processes that the San 
Bernardino kangaroo rat relies upon for habitat renewal and maintenance 
should have been included in the proposed designation.
    Our Response: We consider PCEs to be tangible, recognizable, or 
measurable features in the landscape, where possible, and not the 
processes that result in the feature. Biologists and non-biologists 
should be able to clearly determine the presence of PCEs in the field. 
A process such as hydrological regime should not be a PCE, but the 
resulting habitat condition (i.e., the end result of the process) is an 
appropriate PCE. In the case of the San Bernardino kangaroo rat, 
although hydrological processes maintain the alluvial sage scrub with 
proper soil and vegetative characteristics for this subspecies, habitat 
features described by the PCEs are the actual habitat parameters relied 
upon by the San Bernardino kangaroo rat, not the natural process that 
contributes to the long-term maintenance of the habitat (see the 
``Primary Constituent Elements'' section for a detailed discussion).
    Comment 16: One commenter stated that the proposed rule fails to 
describe the PCEs based on the best available science. This commenter 
stated that according to Braden and McKernan (2000), San Bernardino 
kangaroo rats were documented in a variety of plant communities, 
including coastal sage scrub, chaparral, in highly disturbed areas 
previously not thought to be suitable habitat for this subspecies 
(i.e., dirt parking lots, dirt roads), and questioned why these plant 
communities and disturbed areas were not included in the proposed 
designation.
    Our Response: The PCEs for the San Bernardino kangaroo rat 
described in the proposed rule and this final rule are based on the 
best available science (see Comment 5 and response above). We are aware 
of the Braden and McKernan (2000) study, which showed San Bernardino 
kangaroo rats occupying areas that were previously thought to be 
unsuitable habitat, and we have used that information in revising the 
PCEs and delineating critical habitat for this subspecies in this final 
rule. Please refer to the ``Primary Constituent Elements'' section of 
this final rule for more information on this topic.
    Comment 17: One commenter disagreed with PCEs 2 and 3, stating that 
areas with up to 50 percent chamise chaparral cover are unsuitable for 
the San Bernardino kangaroo rat and that marginal upland areas occupied 
at low densities that are in proximity to occupied habitat do not serve 
to perpetuate the subspecies.
    Our Response: We disagree with the commenters' assertion that up to 
50 percent chamise chaparral cover is unsuitable for the San Bernardino 
kangaroo rat. Research shows that alluvial fan habitat with mature, 
relatively dense vegetation, including chaparral, is at least 
periodically occupied by the San Bernardino kangaroo rat (Braden and 
McKernan 2000, p. 16) (see Comment 16 and response above and the 
``Primary Constituent Elements'' section of this final rule). Also, we 
believe upland areas contain features essential to the conservation of 
the subspecies (see the ``Primary Constituent Elements'' section of 
this final rule for a detailed discussion of the importance of upland 
habitat).
Comments Related to Subspecies Biological Information
    Comment 18: One commenter suggested our statement that inclusion of 
``sufficient areas to provide the space needed to maintain the home 
range for this subspecies'' is na[iuml]ve and misleading. This 
commenter stated they have studied home range dynamics and space 
utilization of the Merriam's kangaroo rat (Dipodomys merriami), of 
which the San Bernardino kangaroo rat is a subspecies, and the 
commenter noted that this species diverges from the normally accepted 
concept of home range as a single area where an individual remains for 
life. The commenter further stated that the size, shape, and location 
of a home range will change dramatically through time depending on a 
number of factors.
    Our Response: We agree with the commenter about the dynamic and 
changing nature of the San Bernardino kangaroo rat's home range. We did 
not suggest in the proposed rule that this subspecies has a defined, 
static home range where it remains during its entire lifetime. 
Furthermore, we considered the dynamic home range of this subspecies 
when delineating critical habitat. In order to clarify concerns voiced 
by the commenter, we changed the quoted text which appears in the 
``Primary Constituent Elements'' section of this final rule to read 
``sufficient areas to provide the space needed to maintain the home 
range dynamics of this subspecies.''
Comments Related to Proposed Exclusions Under Section 4(b)(2) of the 
Act
    Comment 19: One commenter stated that many of the proposed 
exclusions of critical habitat are not consistent with the stated goals 
of the Service in providing protection and recovery for the San 
Bernardino kangaroo rat, while another commenter stated that areas 
proposed for exclusion by the Service should remain in critical 
habitat. Another commenter stated that while they support conservation 
efforts for the San Bernardino kangaroo rat through management plans 
and acquisition of funding to implement these plans, these efforts are 
not a substitute for the designation of critical habitat. This 
commenter stated that the rationale for proposing the following areas 
for exclusion under section 4(b)(2) of the Act is unjustified for the 
following reasons:
    (1) WSPA Management Plan--(a) this plan does not mention the San 
Bernardino kangaroo rat as a target species for conservation nor does 
it provide species-specific monitoring; (b) because the San Bernardino 
kangaroo rat is sympatric with the woolly star, declines in the number 
of woolly star plants documented in this area over the past seven 
seasons may indicate a potential decline in San Bernardino kangaroo rat 
habitat as well; (c) relying on the draft WSPA Multiple Species Habitat 
Management Plan (MSHMP) to exclude areas from final critical habitat is 
not justified since the specific goals of the draft MSHMP are currently 
non-binding;
    (2) Former Norton Air Force Base CMP--while conservation easements 
are identified as the method to assure San Bernardino kangaroo rat 
conservation in perpetuity, to date no conservation easements are 
recorded for these areas;
    (3) Western Riverside County MSHCP--the purpose of the MSHCP to 
streamline Federal and State regulatory mechanisms and allow for take 
of endangered species is very different from the purpose of critical 
habitat to recover species; and
    (4) The designation of Norton Air Force Base, Cajon Creek Habitat 
Conservation Management Area, and Eastern Municipal Water District 
Conservation Lands as critical habitat causes no additional regulatory 
burdens to the agencies that now manage them and will actually aid in 
bringing much-needed resources to the management of these areas.

[[Page 61945]]

    Our Response: We determined that the benefits of exclusion outweigh 
the benefits of inclusion for lands covered by the WSPA Management 
Plans, the Former Norton Air Force Base CMP, the Western Riverside 
County MSHCP, and the Cajon Creek HCMA HEMP, and therefore excluded 
these lands from critical habitat under 4(b)(2) of the Act. Please see 
the ``Exclusions Under Section 4(b)(2) of the Act'' section of this 
final rule for a detailed discussion of the management plans and the 
benefits each plan provides to the San Bernardino kangaroo rat.
    Where a Federal nexus exists, lands designated as critical habitat 
are protected from destruction or adverse modification under section 
7(a)(2) of the Act. However, the conservation and management plans 
mentioned above incorporate on-going management and protection for the 
San Bernardino kangaroo rat that will benefit the long-term 
conservation of the subspecies. This type of long-term management would 
not necessarily result from a section 7(a)(2) consultation on an area 
where critical habitat is designated. Additionally, the protection and 
management afforded to San Bernardino kangaroo rat habitat under these 
plans extend to private lands that may otherwise lack a Federal nexus 
triggering consultation under section 7(a)(2) of the Act. Moreover, 
these plans provide for proactive monitoring and management of 
conserved lands, which is important to the survival and recovery of the 
San Bernardino kangaroo rat.
    Such conservation needs are typically not addressed through the 
application of the statutory prohibition on destruction or adverse 
modification of critical habitat. Section 4(b)(2) of the Act directs 
the Secretary to consider the economic impact, national security 
impact, and any other relevant impact of specifying any particular area 
as critical habitat. An area may be excluded from critical habitat if 
it is determined that the benefits of exclusion outweigh the benefits 
of specifying a particular area as critical habitat, unless the failure 
to designate an area as critical habitat will result in the extinction 
of the species. As discussed in detail in the ``Exclusions Under 
Section 4(b)(2) of the Act'' section, we believe the exclusions in this 
final rule are legally supported under section 4(b)(2) of the Act and 
scientifically justified. The benefits of designating critical habitat 
in areas covered by these plans are minimal, and implementation of 
these plans will result in an increased level of protection and long-
term conservation for the San Bernardino kangaroo rat. Imposing an 
additional regulatory review as a result of designating critical 
habitat may undermine these conservation efforts and partnerships.
    With regard to the comments above that are specific to the WSPA 
Plan; first, we acknowledge that the San Bernardino kangaroo rat is not 
directly addressed by the 1993 Management Plan for the Santa Ana River 
Woolly-Star implemented on the WSPA. However, the management tasks 
benefit the San Bernardino kangaroo rat as well (see ``Woolly-Star 
Preserve Area (WSPA) Management Plans'' discussion below). Second, we 
have no records to indicate that a recent decline in woolly star plants 
is directly related to a decline in San Bernardino kangaroo rat 
habitat. Third, we are not basing our exclusion of WSPA lands solely on 
the recent draft WSPA MSHCP. We are excluding those lands based on 
partnerships with the local sponsors in preparation and implementation 
of the 1993 WSPA management plan and the ongoing update to that plan 
(i.e., the WSPA MSHCP) which will address the San Bernardino kangaroo 
rat (see the ``Woolly-Star Preserve Area (WSPA) Management Plans'' 
exclusion discussion below).
    With regard to the conservation easements on Former Norton Air 
Force Base (CMP) lands, the San Bernardino International Airport 
Authority (SBIA Authority) is currently pursuing conservation easements 
to assure San Bernardino kangaroo rat conservation in perpetuity on 
these lands.
    Regarding the remaining points raised by the commenter above 
specific to the Western Riverside County MSHCP, the Former Norton Air 
Force Base CMP, and the Cajon Creek HCMA HEMP, please see the 
``Benefits of Designating Critical Habitat,'' ``Conservation 
Partnerships on Non-Federal Lands,'' ``Benefits of Excluding Lands With 
HCPs or Other Approved Management Plans,'' and the plan-specific 
exclusions sections of this final rule for a full discussion of our 
rationale for excluding these lands under section 4(b)(2) of the Act. 
Finally, we are not excluding the Eastern Municipal Water District 
conservation lands from critical habitat for the San Bernardino 
kangaroo rat.
    Comment 20: Two commenters stated that the proposed revision would 
violate the Implementing Agreement (IA) of the Western Riverside County 
MSHCP because it does not exclude 506 ac (205 ha) of water district 
land within the MSHCP boundaries. They further stated that the MSCHP 
has already taken the 506 ac (205 ha) of water district lands into 
account--and state that in the IA, the Service agreed that ``in the 
event that a critical habitat determination is made for any Covered 
Species Adequately Conserved * * * lands within the boundaries of the 
MSHCP will not be designated as critical habitat.'' They further stated 
that the MSHCP provides full protection for the San Bernardino kangaroo 
rat even without consideration of the 506 ac (205 ha) owned by the two 
water districts (Eastern Municipal Water District and Lake Hemet 
Municipal Water District). Additionally, the commenters stated that the 
water districts could qualify as a ``Participating Special Entity'' 
under the MSHCP and the significance of this is that if either water 
district wishes to implement a project for which take authorization is 
required, they must comply with the MSHCP and its IA. Thus, if take 
authorization were ever required for their properties, it would be 
covered under the MSHCP.
    Our Response: In the proposed rule to revise critical habitat, we 
provided a description of the Western Riverside County MSHCP and an 
analysis of the proposed exclusion from critical habitat of lands 
covered by this plan to allow the public to comment and provide 
additional information that should be considered in our final exclusion 
analysis (see ``Exclusions under Section 4(b)(2) of the Act'' section 
below for a detailed discussion). We appreciate any conservation work 
that Eastern Municipal Water District and Lake Hemet Municipal Water 
District may be doing; however, the water districts are not signatories 
to or permittees under the MSHCP. Because the water districts are not 
signatories of the MSHCP, they may elect to not be a ``Participating 
Special Entity'', and instead choose an alternative approach outside of 
the MSHCP to conduct their activities. By taking an alternative 
approach, a water district would not be required to comply with the 
MSHCP and associated IA. Therefore, the benefits of including lands 
owned by the Eastern Municipal Water District and Lake Hemet Municipal 
Water District as critical habitat are higher than the benefits of 
including other lands within the overall MSHCP boundaries subject to 
the MSHCP, and we determined under section 4(b)(2) of the Act that the 
water districts' lands should not be excluded from this final 
designation.
    Comment 21: One commenter stated that the area covered by the Cajon 
Creek HCMA HEMP should remain in the critical habitat designation to 
remind the conservation area managers of their responsibility to the 
San Bernardino kangaroo rat and other threatened and endangered 
species.

[[Page 61946]]

    Our Response: The Cajon Creek HCMA HEMP, managed by Vulcan 
Materials Company (formerly CalMat Company), Western Division, was 
created to offset sand and gravel mining proposed within and adjacent 
to Cajon Creek. In making the Cajon Creek HCMA HEMP exclusion, we 
evaluated the benefits of designating non-Federal lands that may not 
have a Federal nexus for consultation while considering if our existing 
partnership has, or will, result in greater conservation benefits to 
the San Bernardino kangaroo rat and its habitat than would likely 
result from consultation on a designation. We balanced the benefits of 
inclusion against the benefits of exclusion (i.e., the benefits of 
preserving partnerships and encouraging development of additional HCPs 
and other conservation plans in the future). We determined that the 
Cajon Creek HCMA HEMP provides equivalent or greater conservation 
benefit to the San Bernardino kangaroo rat than would likely result 
from including this area in the designation, that designation could 
impact our current and future partnerships, and that exclusion of the 
lands covered by this plan will not result in the extinction of the 
subspecies (see ``Exclusions under Section 4(b)(2) of the Act'' section 
below for a detailed discussion). Vulcan Materials is responsible for 
managing these alluvial fan scrub habitat areas in perpetuity for 24 
species, including the San Bernardino kangaroo rat, regardless of 
whether or not critical habitat for the San Bernardino kangaroo rat 
exists on these lands. Vulcan Materials Company is aware of the 
conservation value of their land and has maintained a strong 
partnership with the Service by submitting annual reports and ensuring 
that management and monitoring of their conservation lands adheres to 
the requirements of the Cajon Creek HCMA HEMP.
    Comment 22: One commenter stated that they oppose the Service's 
policy of relying on section 4(b)(2) to exclude habitat that may be 
covered by management plans, conservation easements, and/or endowments 
under the logic that these areas do not need ``special management'' 
pursuant to section 3(5)(A). The commenter referred to this approach as 
``belt and suspenders'' and reminded the Service that the district 
court of Arizona struck down this approach in Center for Biological 
Diversity, et al. v. Norton (D. Ariz. 2003). Furthermore, the commenter 
stated that our exclusion analyses are flawed because a determination 
that excluding an area will not result in the extinction of a species 
does not consider the recovery standards and benefits associated with 
designation. The commenter believes that all San Bernardino kangaroo 
rat habitat needs special management because of the variety of impacts 
to its habitat (e.g., changes in hydrologic regimes, direct impacts 
from development, off-road vehicle impacts). The commenter stated that 
current or future management actions provided for the San Bernardino 
kangaroo rat or its habitat by management plans and/or conservation 
plans are not a reasonable justification for excluding these areas from 
the protection that a designation of critical habitat provides. The 
commenter further stated that the Act defines critical habitat as an 
area that may need special management, and therefore areas that are 
receiving management under a management plan and/or conservation plan 
meet the definition of critical habitat and should not be excluded if 
the necessary management is being provided under a plan. The commenter 
concluded that the Service should include in the final critical habitat 
designation all historical and contemporary areas where the San 
Bernardino kangaroo rat was known (unless it has been developed), 
because these areas meet the definition of critical habitat by nature 
of their need for special management.
    Our Response: The commenter appears to be confusing the purposes of 
sections 3(5)(A) and 4(b)(2) of the Act. Section 3(5)(A) provides the 
requirements for identifying critical habitat, while section 4(b)(2) 
directs the Secretary to consider the impacts of designating such areas 
as critical habitat and provides the Secretary with discretion to 
exclude particular areas if the benefits of exclusion outweigh the 
benefits of inclusion. In this rule, we have not stated that areas do 
not meet the definition of critical habitat under 3(5)(A) because they 
are being adequately managed. However, we have considered the 
management of particular areas that do meet the definition of critical 
habitat in our analyses under section 4(b)(2).
    We explain our criteria for designating critical habitat in 
response to comments 6, 8, and 13 above as well as the ``Criteria Used 
To Designate Critical Habitat'' section below. The responses to 
comments 6 and 8 address why this designation does not contain all 
known occurrences of this subspecies (i.e., contemporary areas) and the 
response to comment 13 addresses why we are not including any 
unoccupied habitat (i.e., historical areas) in this final rule. We 
believe our criteria captures all areas that meet the definition of 
critical habitat under section 3(5)(A) of the Act. We will focus our 
response to this comment on our exclusion of lands under section 
4(b)(2) of the Act that we determined met the definition of critical 
habitat under section 3(5)(A) of the Act.
    Section 4(b)(2) of the Act states that any designations of and/or 
revisions to critical habitat will be made on the basis of the best 
scientific data available after taking into consideration the economic 
impact, the impact on national security, and any other relevant impact 
of specifying any particular area as critical habitat. The Secretary 
may exclude any area from critical habitat if he determines that the 
benefits of exclusion outweigh the benefits of specifying such area as 
part of the critical habitat, unless he determines that the failure to 
designate such area as critical habitat will result in the extinction 
of the species concerned. Therefore, consistent with the Act, we must 
consider the relevant impacts of designating areas that meet the 
definition of critical habitat using the best available scientific data 
available prior to finalizing a critical habitat designation.
    After determining the areas that meet the definition of critical 
habitat under section 3(5)(A) of the Act as described above, we took 
into consideration the economic impact, the impact on national 
security, and other relevant impacts of specifying any particular area 
as critical habitat for the San Bernardino kangaroo rat. In this final 
designation, we recognize that designating critical habitat in areas 
where we have partnerships with land owners that have led to 
conservation and/or management of listed species on non-Federal lands 
has a relevant perceived impact to landowners and a relevant impact to 
future partnerships and conservation efforts on non-Federal lands. 
These impacts are described in detail in the ``Conservation 
Partnerships on Non-Federal Lands'' section below. Based on these 
relevant impacts, we evaluated the benefits of designating areas as 
critical habitat against the benefits of excluding these areas from the 
critical habitat designation. Please see the ``Application of Section 
4(b)(2) of the Act'' and ``Exclusions under Section 4(b)(2) of the 
Act'' sections of this final rule for a detailed discussion of the 
benefits of excluding lands covered by management plans versus the 
benefits of including these areas in a critical habitat designation. 
Upon weighing the specific benefits of inclusion against specific 
benefits of exclusion, we determined that the benefits of excluding a 
portion of units 1, 2, 3, and 5 outweigh the

[[Page 61947]]

benefits of including these areas in the final critical habitat 
designation. When weighing the benefits of including an area in the 
critical habitat designation, we fully consider the regulatory benefits 
provided to the species under section 7(a)(2) of the Act based on the 
statutory difference between a jeopardy analysis and an adverse 
modification analysis, and our balancing analyses reflects our 
consideration of the recovery standards and benefits associated with 
designation. Further we determined that the exclusion of these areas 
will not result in extinction of the San Bernardino kangaroo rat. 
Contrary to the commenter's belief, this determination to exclude areas 
where the benefits of exclusion outweigh the benefits of inclusion and 
where we determined that the exclusion will not result in the 
extinction of the species is consistent with the statutory obligations 
of the Act. Therefore, we believe these exclusions are in full 
compliance with the Act.
    Comment 23: One commenter stated that the proposed critical habitat 
rule did not unequivocally demonstrate that the benefits of excluding 
areas covered by management plans from critical habitat outweigh the 
benefits of including them.
    Our Response: As stated above, the Secretary may exclude any area 
from critical habitat if he determines that the benefits of exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless he determines that the failure to designate such area 
as critical habitat will result in the extinction of the species 
concerned. The benefits of excluding an area from a critical habitat 
designation (e.g., preserving partnerships and fostering new 
partnerships) are not directly comparable to the benefits of including 
that same area within a designation (e.g., regulatory consultation 
requirement), and therefore one cannot unequivocally compare the two in 
an analysis; rather the Secretary fully considers the impacts of 
designation and weighs all the factors to determine if the benefits of 
exclusion outweigh the benefits of inclusion. For the reasons detailed 
in the ``Exclusions under Section 4(b)(2) of the Act'' section of this 
final rule, we determined that the benefits of exclusion outweigh the 
benefits of inclusion for lands covered by the WSPA Management Plans, 
the Former Norton Air Force Base CMP, the Western Riverside County 
MSHCP, and the Cajon Creek HCMA HEMP, and determined that exclusion of 
these lands will not result in the extinction of the San Bernardino 
kangaroo rat. Therefore, we have excluded these lands from the critical 
habitat designation under section 4(b)(2) of the Act.
Comments on Lands Designated as Critical Habitat
    Comment 24: Several commenters stated there are areas within the 
proposed critical habitat that should not be included in the final 
designation because they do not contain the PCEs, are not occupied by 
the subspecies, or otherwise do not meet the definition of critical 
habitat. One commenter objected to the inclusion of three parcels of 
land along City Creek in proposed Unit 1 that are used by San 
Bernardino County Flood Control for maintenance activities following 
storm events, and stated that these parcels are being evaluated by the 
City of Highland as part of its land use planning effort for the future 
development of the Golden Triangle area. Two commenters objected to the 
inclusion of large areas of property (owned by Lytle Development 
Company) in the Lytle Creek area in proposed critical habitat Unit 2. 
The objection is based on negative survey data over recent years and 
judgment of a biological consultant who believes the areas in question 
are not suitable habitat for this subspecies, are not occupied, or are 
not essential to the conservation of the subspecies.
    Our Response: Where site-specific information was submitted to us 
with a rationale as to why an area should not be designated as critical 
habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3(5)(A) of the Act. 
Following our evaluation of the provided information, we made a 
determination that modifications to the critical habitat boundaries 
were not warranted. Data used in the preparation of our final revised 
designation indicate that the area of Lytle Creek in question is 
occupied by the San Bernardino kangaroo rat and contains some of the 
last remaining suitable upland habitat (PCEs 2 and 3) in Unit 2 that 
contains the features essential to the conservation of the subspecies, 
and the areas near City Creek provide suitable alluvial habitat in Unit 
1 and connectivity with the core population in the Sana Ana River wash. 
The area in question meets our criteria used to identify critical 
habitat (see ``Criteria Used To Identify Critical Habitat'' section 
below). We believe that based on the behavior and ecology of the San 
Bernardino kangaroo rat as extrapolated from the best available 
scientific data, the animal may not be detectable at all times across 
all areas designated as critical habitat, and, based on our analysis, 
we believe we properly defined occupancy as it relates to the behavior 
and ecology of this subspecies.
    Comment 25: One commenter stated the Service failed to make the 
requisite finding that land within two areas of Lytle Creek, which they 
claim should be excluded, may require special management considerations 
or protection. The commenter claims that these lands are not candidates 
for special management considerations or protection because no 
reasonable amount of management efforts could make these lands suitable 
for the San Bernardino kangaroo rat or connect them with the Lytle 
Creek wash population. The commenter further stated that one of these 
areas is outside the geographical area occupied by the San Bernardino 
kangaroo rat and the Service has not made, and cannot make, the 
requisite findings to include the area within critical habitat under 16 
U.S.C. section 1532(5)(A)(ii).
    Our Response: We determined through survey data, vegetation data, 
analysis of aerial imagery, and site visits with Service subspecies 
experts, that these two areas of Lytle Creek are within the 
geographical area occupied at the time of listing, are currently 
occupied, and contain the features essential to the conservation of the 
San Bernardino kangaroo rat. We acknowledge that these upland areas are 
likely occupied at a lower density than areas within the lowland wash 
and contain somewhat dense vegetation; however, these areas contain 
some of the last remaining upland habitat within Unit 2 (PCEs 2 and 3) 
and contain the features essential to the conservation of the 
subspecies as described in the ``Primary Constituent Elements'' section 
of this final rule. As discussed in the ``Unit Descriptions'' section 
of this final rule, the physical and biological features within the 
Lytle/Cajon Creek wash 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. Furthermore, Braden and McKernan (2000, p. 16) 
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, are at 
least periodically occupied by San Bernardino kangaroo rats. 
Additionally, we believe the earthen levees separating some of these 
areas from the active wash do not isolate individuals or prohibit 
movements in these areas from the core population within Lytle Creek 
wash. Therefore, we disagree with the

[[Page 61948]]

commenter's claim that no reasonable amount of management efforts could 
make this land suitable for the subspecies or connect San Bernardino 
kangaroo rats in these areas with the Lytle Creek wash population; this 
area is occupied, connected, and the essential features may require 
special management considerations or protection.
    Comment 26: Two commenters stated that social, economic, and policy 
considerations in the context of the Act's section 4(b)(2) balancing 
test support excluding a larger area from the designation in two areas 
within the Lytle Creek wash. The commenters suggested that there are 
various benefits to excluding Lytle Development Company (LDC) lands 
from the critical habitat designation. The commenters stated that 
removing critical habitat from these areas would allow LDC to develop 
its proposed Lytle Creek Ranch project. The commenters further stated 
that LDC would then be able, through financing generated by that 
project, to dedicate permanent conservation habitat for the San 
Bernardino kangaroo rat.
    Our Response: Lands owned by LDC contain both upland and lowland 
alluvial scrub habitat that contains features essential to the 
conservation of this subspecies and we appreciate LDC's willingness to 
contribute to the long-term conservation of the San Bernardino kangaroo 
rat. However, when performing the required analysis under section 
4(b)(2) of the Act, the existence of a management plan (i.e., HCP or 
other type) that considers enhancement or recovery of listed species as 
its management standard is relevant to our weighing of the benefits of 
inclusion versus the benefits of excluding a particular area in a 
critical habitat designation. In considering the benefits of including 
lands in a designation that are covered by a current HCP or other 
management plan, we evaluate a number of factors to help us determine 
if the plan provides equivalent or greater conservation benefit than 
would likely result from consultation on a designation: (1) Whether the 
plan is complete and provides protection from destruction or adverse 
modification; (2) whether there is a reasonable expectation that the 
conservation management strategies and actions will be implemented for 
the foreseeable future, based on past practices, written guidance, or 
regulations; and (3) whether the plan provides conservation strategies 
and measures consistent with currently accepted principles of 
conservation biology. Because habitat was not set aside and a 
management plan not completed that is consistent with the above 
factors, we determined that the exclusion of these areas under section 
4(b)(2) of the Act based in part on potential future conservation would 
be inappropriate. Further, we do not believe the relative economic 
impact outweighed the conservation benefits of including these lands in 
the critical habitat designation.
    Comment 27: One commenter stated that the proposed rule somewhat 
mischaracterizes the existing LDC restoration and conservation program. 
The commenter stated that the program is managing all 217 ac (88 ha) to 
benefit the San Bernardino kangaroo rat (not just 40 ac (16 ha)) within 
the protected conservation area.
    Our Response: We acknowledge the conservation efforts of LDC, and 
in response to this comment we revised and supplemented the discussion 
of the LDC conservation areas in this final rule. Please see the ``Unit 
Descriptions'' section below for more information.
    Comment 28: One commenter stated that additional losses of habitat 
for the San Bernardino kangaroo rat are slated to occur and gave the 
example that the City of Highland is proceeding with a number of 
projects within currently designated and proposed critical habitat. The 
commenter stated that these further reductions in the animal's habitat 
underscore the need to identify all extant areas where the subspecies 
exists and to include all occupied habitat in the final revised 
critical habitat designation. A second commenter stated that areas 
proposed by Orange County Flood Control District and the City of 
Highland for development of 3,000 homes and a highway through Mill 
Creek Wash lie within the proposed critical habitat boundary. A third 
commenter stated that the same 3,000-home project would be placed in an 
area that is one of the only places in Unit 1 (Mill Creek Wash) that 
still retains fluvial input.
    Our Response: We are not currently in consultation on the proposed 
projects mentioned in the comment above. Any project involving a 
Federal nexus which may affect a federally listed species or designated 
critical habitat would require consultation with the Service to ensure 
such actions would not jeopardize the continued existence of the 
species or destroy or adversely modify critical habitat (see the 
``Critical Habitat'' section of this final rule for a detailed 
discussion). The designation of critical habitat does not affect 
projects that do not have a Federal nexus; however, if a project may 
result in take of a federally listed species, then the project 
proponent would need to obtain an incidental take permit from the 
Service to be in compliance with the Act. Mill Creek is important to 
the recovery of the subspecies as it is the only large stretch of 
contiguous, occupied habitat for the San Bernardino kangaroo rat within 
Unit 1 that is not fragmented by development (e.g., roads, aggregate 
mining pits). Furthermore, Mill Creek is the only remaining source of 
alluvial sediments within Unit 1 that has not been significantly 
altered by flood control structures, water diversions, or other 
activities. Although we did not include the majority of Mill Creek in 
our June 19, 2007, proposed revision to critical habitat, we have since 
re-evaluated Mill Creek as described in the April 16, 2008, NOA in 
light of several substantive public comments recommending the inclusion 
of Mill Creek as critical habitat. We are including approximately 388 
ac (157 ha) of Mill Creek in the final revised designation (see the 
``Summary of Changes From the 2007 Proposed Rule To Revise Critical 
Habitat'' section of this final rule for more information).
    As discussed in our response to comment 6 above, under section 
3(5)(C) of the Act, critical habitat shall not include the entire 
geographical area which can be occupied by the species unless otherwise 
determined by the Secretary. In developing the proposed rule to revise 
critical habitat, we considered the geographical area occupied by the 
subspecies at the time of listing, and within that broad geographical 
area, identified those areas that, based on the best available 
scientific and commercial data, contain the physical and biological 
features essential to the subspecies' conservation. We recognize that 
our designation of critical habitat for the San Bernardino kangaroo rat 
does not encompass all known occurrences of this subspecies as noted by 
the commenter. Although we are not designating all known occurrences of 
the San Bernardino kangaroo rat, we believe that our final designation 
is adequate to ensure the conservation of this subspecies throughout 
its extant range based on the best available information at this time.
    Comment 29: One commenter stated that any revisions to designated 
critical habitat as proposed in the June 19, 2007, proposed rule (72 FR 
33808) are premature because they fail to consider several ongoing 
Federal processes that directly affect the San Bernardino kangaroo rat. 
The commenter specifically identified the Wash Plan (or Plan B) as a 
multiple species HCP process occurring in the Santa Ana River wash 
area, to address conservation

[[Page 61949]]

of and provide incidental take coverage for the San Bernardino kangaroo 
rat. The commenter also mentioned that the U.S. Army Corps of Engineers 
(ACOE) is preparing a Multiple Species Habitat Management Plan, to 
avoid, minimize, or offset impacts associated with the Seven Oaks Dam, 
which would also include conservation strategies for the San Bernardino 
kangaroo rat. The commenter stated that because Federal, State, and 
local stakeholders have invested significant amounts of time in both of 
these processes, it is only proper to delay designation of the final 
critical habitat until the completion of these processes.
    Our Response: The Service is aware of and has considered the 
Federal projects mentioned in the comment above in the process of 
revising designated critical habitat; however, we are under a court-
ordered timeline to submit to the Federal Register a final rule 
revising critical habitat for the San Bernardino kangaroo rat by 
October 1, 2008.
    Comment 30: Several commenters provided information about the 
proposed critical habitat Unit 2 (Lytle/Cajon Creek wash) along the 
State Route 210 freeway (SR-210). Most of these comments indicated that 
areas along the freeway should be removed from critical habitat because 
they are developed or will soon be developed. Commenters suggested 
removing areas along the length of the SR-210, and specifically 
identified 100 feet along the north side of SR-210 and the south side 
of SR-210 in the vicinity of the Pepper Avenue extension project.
    Our Response: The revised critical habitat boundary in Unit 2 
(Lytle/Cajon Creek wash) extends south to Highland Avenue, which is 
north of the new SR-210 crossing of Lytle Creek. Much of the areas 
around SR-210 that were commented on were not included in the proposed 
revision to critical habitat because they do not meet the definition of 
critical habitat. The delineated critical habitat boundary lies just 
north of SR-210. We are not designating critical habitat from Highland 
Avenue south in the Lytle/Cajon wash. Areas designated as critical 
habitat within Lytle Creek are occupied and contain the features 
essential to the conservation of the San Bernardino kangaroo rat.
    Comment 31: One commenter suggested the Service reject any proposal 
to remove critical habitat within the City of Highland in the area of 
Greenspot Road and City Creek/Plunge Creek just east of SR-30. The 
commenter stated that this area is viable, occupied habitat. The 
commenter indicated that removing this area from the critical habitat 
designation allows for the development of a shopping center. The 
commenter indicated that removal of this area from the critical habitat 
designation is not based on good science.
    Our Response: The area in the vicinity of Greenspot Road between 
SR-30 and Boulder Avenue/Orange Street does not support the PCEs 
required by the San Bernardino kangaroo rat in the appropriate quantity 
and spatial arrangement essential to the conservation of the subspecies 
as it consists of habitat degraded by mining activities and development 
or contains grassy fields. Furthermore, Plunge Creek at Orange Street 
is completely channelized and diverted from its historical connection 
with the Santa Ana River. We are aware that some areas in the vicinity 
of Greenspot Road not included in this designation may be sparsely 
occupied; however, we have determined that these areas do not meet the 
definition of critical habitat. There is a section of relatively 
undisturbed alluvial scrub habitat east of City Creek and SR-30 that we 
are including in this designation. Areas that support populations, but 
are outside the critical habitat designation, will continue to be 
subject to conservation actions we implement under section 7(a)(1) of 
the Act. Any proposed activity, including the proposed shopping center 
mentioned in the comment would also be subject to the regulatory 
protections afforded by the section 7(a)(2) jeopardy standard, if a 
Federal nexus is involved, and the prohibitions of section 9 of the 
Act.
    Comment 32: One commenter stated it is reasonably foreseeable that 
the proposed critical habitat will, if approved, result in significant 
adverse impacts to the San Bernardino kangaroo rat. For this reason, 
the commenter encouraged the Service to reconsider its position 
regarding the National Environmental Policy Act (NEPA) and prepare 
environmental analyses as defined by NEPA before approving this 
reduction.
    Our Response: It is our position that, outside the jurisdiction of 
the Circuit Court of Appeals for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et 
seq.) 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 in the courts of the Ninth Circuit Court of Appeals (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).
    Comment 33: One commenter stated that due to climate change in the 
future, the San Bernardino kangaroo rat will move slowly up the Lytle 
and Cajon Creek wash area instead of going further south.
    Our Response: We did not address potential impacts of global 
climate change on this subspecies in the proposed rule because we are 
not currently aware of any subspecies-specific or geographic-specific 
information on this potential threat. While we do not deny that global 
climate change is occurring, we cannot predict what areas might be 
important for this subspecies in light of future climate changes 
without on-the-ground evidence documenting range shift patterns in San 
Bernardino kangaroo rat populations. The commenter expressed a general 
concern for the effects of climate change on the San Bernardino 
kangaroo rat, but did not provide evidence supporting a possible range 
shift for this subspecies. Should additional data become available, we 
may revise this critical habitat designation subject to available 
funding and other conservation priorities.
    Comment 34: One commenter suggested that the Etiwanda fan needs to 
be retained because it is currently occupied and provides recovery 
opportunities for the subspecies.
    Our Response: The Etiwanda fan area is not included in this 
revision to critical habitat because we have determined that this area 
does not meet the definition of critical habitat. The area is 
significantly degraded, largely unoccupied, and does not contain the 
physical and biological features essential to the conservation of the 
San Bernardino kangaroo rat. We believe that our designation of 
critical habitat contains the areas necessary for the recovery and 
long-term conservation of this subspecies without the inclusion of the 
Etiwanda fan.
Comments From Other Federal Agencies
    Comment 35: The U.S. Forest Service (USFS) commented that they 
oppose the designation of critical habitat for the San Bernardino 
kangaroo rat on National Forest lands. The USFS further stated that the 
San Bernardino National Forest (SBNF) recently revised its Land and 
Resource Management Plan (LRMP), and management direction was 
incorporated that the USFS believes provides sufficient protection and 
management for the San Bernardino kangaroo rat and its habitat. They 
also stated that the Service concurred that these conservation measures 
provide protection for this subspecies when the Service issued a non-
jeopardy biological

[[Page 61950]]

opinion on the LRMP in 2005 (Service 2005, p. 175). The USFS believes 
that no additional benefit to, or protection for, this subspecies would 
occur as a result of critical habitat designation of National Forest 
lands, it is simply not needed in order to conserve this subspecies. 
The USFS also stated that it currently has in place ``special 
management considerations or protection'' for this subspecies, and that 
it does not need any additional considerations or protection that 
critical habitat designation of National Forest lands might provide.
    The USFS also commented that designation of critical habitat 
identified in the proposed rule would unnecessarily add to the USFS 
workload by requiring them to conduct a separate analysis and make a 
determination of effect for designated critical habitat when consulting 
under section 7 of the Act.
    Our Response: We determined that National Forest lands contain 
physical and biological features essential to the conservation of the 
San Bernardino kangaroo rat, and therefore, meet the definition of 
critical habitat (see ``Criteria Used To Identify Critical Habitat'' 
section below). We acknowledge that the revised LRMP will benefit the 
San Bernardino kangaroo rat and its habitat. The LRMP contains general 
provisions for species conservation and suggests specific management 
and conservation actions that will benefit this species and the 
physical and biological features essential to its conservation. 
Implementation of the LRMP should address known threats to this species 
on National Forest lands. We appreciate and commend the efforts of the 
USFS to conserve federally listed species on their lands.
    The Secretary has the discretion to exclude an area from critical 
habitat under section 4(b)(2) of the Act after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impact if he determines that the benefits of such 
exclusion outweigh the benefits of designating such area as critical 
habitat, unless he determines that the exclusion would result in the 
extinction of the species concerned. We considered the request from the 
USFS that we exclude their lands because it would unnecessarily add 
work in the future to determine the effect regarding critical habitat 
for actions on their lands and the fact that they had already completed 
consultation under section 7(a)(2) of the Act on their revised LRMP.
    As part of our section 7 consultation with the USFS on the SBNF 
LRMP, the USFS has already consulted on various activities carried out 
on National Forest lands including: Roads and trail management; 
recreation management; special use permit administration; 
administrative infrastructure; fire and fuels management; livestock 
grazing and range management; minerals management; and law enforcement. 
In our 2005 biological opinion on the LRMP, we determined that 
implementation of the plan was not likely to jeopardize the continued 
existence of the San Bernardino kangaroo rat or adversely modify 
critical habitat designated in 2002 for this subspecies. Since the USFS 
has already consulted with us on potential impacts to critical habitat 
related to the activities outlined in the LRMP, the designation of 
revised critical habitat should not require additional consultation for 
those activities.
    Based on the record before us, we have elected not to exclude these 
lands and are designating National Forest lands that meet the 
definition of critical habitat for the San Bernardino kangaroo rat. We 
will continue to consider on a case-by-case basis in future critical 
habitat rules whether to exclude particular Federal lands from such 
designation when we determine that the benefits of such exclusion 
outweigh the benefits of their inclusion.
Comments Related to the Draft Economic Analysis
    Comment 36: One commenter stated the Service needs to include all 
occupied and unoccupied, historical habitat in the economic analysis 
(and final critical habitat), and not rely on the flawed draft critical 
habitat as the basis for the economic analysis.
    Our Response: We believe our final designation accurately describes 
all specific areas meeting the definition of critical habitat for the 
San Bernardino kangaroo rat. As discussed in the ``Criteria Used To 
Identify Critical Habitat'' section of this final rule and response to 
comments 3 and 6 above, we delineated critical habitat for the San 
Bernardino kangaroo rat using the following criteria: (1) Areas 
occupied by the subspecies at the time of listing, and currently 
occupied, within the historical range of the subspecies (2) areas 
retaining fluvial dynamics containing one or more of the PCEs for the 
subspecies; (3) areas supporting a core population of the subspecies; 
and (4) areas demographically disconnected from the largest 
populations, but which may be important for the long-term recovery of 
the subspecies. Application of these criteria results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, identified as the 
species' PCEs laid out in the appropriate quantity and spatial 
arrangement. Thus, not all areas supporting the identified PCEs will 
meet the definition of critical habitat.
    We recognize that our designation does not encompass all known 
occurrences of this subspecies as noted by the commenter. Specifically, 
we did not include in the final designation small, isolated areas of 
degraded habitat or areas devoid of fluvial processes because such 
areas likely only support unsustainable populations that would not 
contribute to the recovery of the subspecies. Further, we designate 
critical habitat in areas outside the geographical area presently 
occupied by a species only when a designation limited to its present 
range would be inadequate to ensure the conservation of the species (50 
CFR 424.12(e)). Accordingly, when the best scientific and commercial 
data do not demonstrate that the conservation needs of the species 
require designation of critical habitat outside of occupied areas, we 
will not designate critical habitat outside the geographical area 
occupied by the species. Although we are not designating all known 
occurrences of the San Bernardino kangaroo rat, we believe the areas we 
have identified as meeting the definition of critical habitat, and 
which are included in the final revised critical habitat designation, 
are adequate to ensure the conservation of the subspecies throughout 
its extant range. Species that are protected across their ranges are 
expected to have lower likelihoods of extinction (Soule and Simberloff 
1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating 
multiple locations across the range of the subspecies to prevent range 
collapse.
    We recognize that the designation of critical habitat may not 
include all of the habitat that may eventually be determined to be 
necessary for the recovery of the subspecies, and critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not contribute to recovery. We do not agree that the 
proposed designation is flawed, and maintain it was appropriate to base 
the draft economic analysis on the areas included in the proposed rule.
    Comment 37: One commenter asserts that the Service must look only 
at the incremental cost of the proposed designation and not at the 
costs attributable to listing alone when considering exclusion of 
habitat areas.

[[Page 61951]]

    Our Response: The U.S. Office of Management and Budget's (OMB) 
guidelines for conducting economic analysis of regulations direct 
Federal agencies to measure the costs of a regulatory action against a 
baseline, which it defines as the ``best assessment of the way the 
world would look absent the proposed action.'' In other words, the 
baseline includes the existing regulatory and socio-economic burden 
imposed on landowners, managers, or other resource users potentially 
affected by the designation of critical habitat. Impacts that are 
incremental to that baseline (i.e., occurring over and above existing 
constraints) are attributable to the proposed regulation. Significant 
debate has occurred regarding whether assessing the impacts of the 
Service's proposed regulations using this baseline approach is 
appropriate in the context of critical habitat designations.
    In order to address the divergent opinions of the courts and 
provide the most complete information to decision-makers, the economic 
analysis reports both: (a) The baseline impacts of SBKR conservation 
from protections afforded the species absent critical habitat 
designation; and (b) the estimated incremental impacts precipitated 
specifically by the designation of critical habitat for the species. 
Summed, these two types of impacts comprise the fully co-extensive 
impacts of San Bernardino kangaroo rat conservation in areas considered 
for critical habitat designation.
    Incremental effects of critical habitat designation are determined 
using the Service's December 9, 2004, interim guidance on ``Application 
of the `Destruction or Adverse Modification' Standard Under Section 
7(a)(2) of the Endangered Species Act'' and information regarding what 
potential consultations and project modifications may potentially occur 
as a result of critical habitat designation over and above those 
associated with the listing. In Gifford Pinchot Task Force v. United 
States Fish and Wildlife Service, the Ninth Circuit invalidated the 
Service's regulation defining destruction or adverse modification of 
critical habitat, and the Service no longer relies on this regulatory 
definition when analyzing whether an action is likely to destroy or 
adversely modify critical habitat. Under the statutory provisions of 
the Act, the Service determines destruction or adverse modification on 
the basis of whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional to serve 
its intended conservation role for the species. A detailed description 
of the methodology used to define baseline and incremental impacts is 
provided later in this section.
    Comment 38: Two commenters request that the Service estimate the 
economic benefits of critical habitat designation, including positive 
health effects associated with foregone air pollution, water 
conservation, open space preservation, protection of other species, and 
savings from reduced flood plain development.
    Our Response: Under Executive Order 12866, OMB directs Federal 
agencies to provide an assessment of both the social costs and benefits 
of proposed regulatory actions. 22 OMB's Circular A-4 distinguishes two 
types of economic benefits: direct benefits and ancillary benefits. 
Ancillary benefits are defined as favorable impacts of a rulemaking 
that are typically unrelated, or secondary, to the statutory purpose 
(i.e., direct benefits) of the rulemaking.
    In the context of critical habitat, the primary purpose of the 
rulemaking (i.e., the direct benefit) is the potential to enhance 
conservation of the species. The published economics literature has 
documented that social welfare benefits can result from the 
conservation of endangered and threatened species. In its guidance for 
implementing Executive Order 12866, OMB acknowledges that it may not be 
feasible to monetize, or even quantify, the benefits of environmental 
regulations due to either an absence of defensible, relevant studies or 
a lack of resources on the implementing agency's part to conduct new 
research. Rather than rely on economic measures, the Service believes 
that direct benefits of the proposed rule are best expressed in 
biological terms that can be weighed against the expected cost impacts 
of the rulemaking.
    Critical habitat designation may also generate ancillary benefits. 
Critical habitat aids in the conservation of species specifically by 
protecting the primary constituent elements on which the species 
depends. To this end, critical habitat designation can result in 
maintenance of particular environmental conditions that may generate 
other social benefits aside from the preservation of the species. That 
is, management actions undertaken to conserve a species or habitat may 
have coincidental, positive social welfare implications (e.g., 
increased recreational opportunities in a region). Although not the 
primary purpose of critical habitat, ancillary benefits may result in 
gains in employment, output, or income that may offset the direct, 
negative impacts to a region's economy resulting from actions to 
conserve a species or its habitat.
    It is often difficult to evaluate the ancillary benefits of 
critical habitat designation. To the extent that ancillary benefits of 
the rulemaking may be captured by the market through an identifiable 
shift in resource allocation, they are factored into the overall 
economic impact assessment in this report. For example, if habitat 
preserves are created to protect a species, the value of existing 
residential property adjacent to those preserves may increase, 
resulting in a measurable positive impact. Where data are available, 
this analysis attempts to capture the net economic impact (i.e., the 
increased regulatory burden less any discernable offsetting market 
gains), of species conservation efforts imposed on regulated entities 
and the regional economy.
    Comment 39: One commenter expressed concern that the economic 
analysis relies too heavily on economic modeling to predict the impacts 
of the proposed rule on development. The economic analysis does not 
account for local factors, such as the presence of floodplains in San 
Bernardino kangaroo rat habitat and a slow housing market, which will 
depress development regardless of the critical habitat designation. In 
particular, other Federal laws and flood insurance policies, state law, 
and local land use policies generally prohibit development in 
floodplains.
    Our Response: As described in Appendix D, Section D.2 of the DEA, 
the analysis relies on growth projection data provided by the Southern 
California Association of Governments (SCAG), which is widely regarded 
as the most reliable and up-to-date source of this information.
    Section 3.3.3.2 of the DEA describes the geographic scope of the 
analysis of impacts on development. The analysis considers the impacts 
on projected development in all privately owned, unprotected lands 
within the area proposed for final critical habitat designation. When 
projecting growth within the area of proposed critical habitat, flood 
plains were removed from the area of the analysis for the reasons 
expressed by the commenter. However, portions of the proposed critical 
habitat are located in areas outside of the floodplain boundaries. The 
area of proposed critical habitat includes uplands and low-lying areas 
that are not in the floodplain.
    Comment 40: One commenter argues that there is no basis or evidence 
that the costs of protecting the San Bernardino kangaroo rat will 
increase to $10.6 million per year.

[[Page 61952]]

    Our Response: As shown in Table ES-1 of the DEA, the baseline cost 
of protecting the San Bernardino kangaroo rat and its habitat is 
projected to be $15.2 million on an annualized basis. Additionally, 
incremental costs attributable to the designation of critical habitat 
are predicted to total $4.3 million on an annualized basis. It is 
unclear how the commenter's estimate of $10.6 million per year was 
obtained. As discussed on pages 2-3 and 2-7 of the DEA, the baseline 
costs are driven by foregone revenues to Eastern Municipal Water 
District of scaling back the Hemet/San Jacinto Recharge and Recovery 
Program by 30,000 acre feet per year. The costs associated with these 
activities are based on information provided by the Director of 
Engineering at Eastern Municipal Water District. The impacts of scaling 
back the groundwater recharge program will occur in the future; no 
comparable reduction in groundwater recharge occurred in the past. 
Therefore, future annual costs of protecting the San Bernardino 
kangaroo rat are expected to be higher than in the past.
    Comment 41: One commenter states that the DEA grossly inflates 
administrative and project modification costs, and cites as an example 
an estimate on page 45 of the DEA that the Bureau of Land Management 
(BLM) will spend $200,000 per year to install signs and enforce 
existing closures prohibiting off-road vehicle use on BLM lands. 
Furthermore, the commenter states that if incurred, these costs should 
not be attributed to the San Bernardino kangaroo rat. Finally, the 
commenter asserts that purchasing signage will have a positive regional 
effect on the economy that should off-set the costs.
    Our Response: The source of the commenter's example is unclear. The 
DEA does not have a page 45 or Section 4-5, nor does it estimate the 
costs of signage. To address the overall concern expressed in the 
comment, the DEA analyzes how entities will alter their behavior to 
conserve the San Bernardino kangaroo rat. If an agency will undertake a 
conservation measure for the benefit of the San Bernardino kangaroo 
rat, then the cost of that action is considered attributable to the San 
Bernardino kangaroo rat. Allocating economic resources to the 
conservation measure and away from other activities represents an 
opportunity cost. Conservation measures may have positive 
distributional effects; however, paying for the conservation measure 
essentially transfers resources away from other entities that would 
have incurred the distributional gains.
    Comment 42: One commenter stated that the DEA does not address any 
of the economic benefits of the designation of critical habitat.
    Our Response: See our response to comment 38 above.
    Comment 43: One commenter was concerned that the DEA does not 
analyze the economic impacts of the lands the Service added to the 
critical habitat designation.
    Our Response: The Addendum to the Economic Analysis of Critical 
Habitat Designation for San Bernardino Kangaroo Rat, which analyzes the 
additional lands proposed for critical habitat designation, was made 
available to the public for review and comment on July 29, 2008.
    Comment 44: One commenter noted that the housing projections in the 
DEA do not account for LDC plans to develop 5,800 houses in Unit 2.
    Our Response: We revised the development projections in the Final 
Economic Analysis (FEA) (see pages 2-11 to 2-15 and pages 3-4 to 3-11 
of the FEA) to account for LDC's planned development in Unit 2.
    Comment 45: Two commenters explained that the DEA significantly 
underestimates economic impacts in Unit 2 because it does not account 
for LDC's development plans.
    Our Response: We recalculated impacts in the FEA to account for 
LDC's home development projections. See pages 2-14 to 2-15 and pages 3-
10 to 3-11 of the FEA for the revised impacts in Unit 2.
    Comment 46: Two commenters pointed out that LDC is intending to 
develop 647 acres of its property that is mostly within upland San 
Bernardino kangaroo rat habitat. According to the commenter, 
designation of critical habitat on these 647 acres would place 
uncertainty over LDC's economic use and development potential.
    Our Response: The FEA includes all costs associated with the impact 
of critical habitat on LDC's 647 acres (see pages 2-14 and 3-10 of the 
FEA). The economic analysis accounts for lost land values, delay, and 
other costs related to regulatory uncertainty.
    Comment 47: One commenter argued that the DEA incorrectly assumes 
that there is no limitation on the stock of land available for 
mitigation purposes. The commenter suggested that the DEA will need to 
either identify the location and amount of suitable San Bernardino 
kangaroo rat habitat that is available for use as future San Bernardino 
kangaroo rat habitat mitigation land or the analysis in the DEA will 
need to be revised to factor in the true effects of there being only a 
small and finite amount of suitable San Bernardino kangaroo rat habitat 
available for use as mitigation land.
    Our Response: While we agree that only a finite amount of San 
Bernardino kangaroo rat habitat exists, there is sufficient evidence 
from conservation banks (see pages 2-11 to 2-12 of the FEA) that ample 
land exists within and outside of conservation banks to accommodate 
potential future compensation for impacts to the San Bernardino 
kangaroo rat and its habitat.
    Comment 48: One commenter asserted the DEA incorrectly estimates 
the per acre cost of San Bernardino kangaroo rat mitigation habitat. 
The commenter cited evidence that the cost of mitigation land has gone 
up in the last ten years. The commenter reasoned that one can expect 
the cost of mitigation land to continue to rise in the future.
    Our Response: We consulted with local conservation bank owners and 
consultants familiar with the area to determine the likely future cost 
of conservation bank credits (see footnote 56 in the DEA). We used the 
best available conservation bank prices to estimate the future costs of 
conservation. We confirmed these prices with conservation bank owners 
for the FEA (see page 2-12 of the FEA).
    Comment 49: A commenter stated that the evaluation of the economic 
cost of this proposed designation in the DEA is limited by defining the 
time period of the economic analysis as the next 22 years.
    Our Response: As explained on page 1-17 of the DEA, the economic 
analysis calculates impacts based on activities that are ``reasonably 
foreseeable.'' The standard framework for economic analyses calculates 
impacts in a twenty year timeframe. Future impacts were calculated in 
the DEA through the year 2030 to be consistent with Southern California 
Association of Governments projections.
    Comment 50: A commenter criticized the DEA for overvaluing the 
impacts of critical habitat. The commenter asserts that all of the 
costs would be required even if critical habitat had not been 
designated because the San Bernardino kangaroo rat currently lives in 
those areas.
    Our Response: We disagree with the commenter's assertion that all 
potential costs would be required even without critical habitat. The 
DEA quantifies the baseline impacts, defined as those future impacts 
that result from listing and other conservation efforts for the San 
Bernardino kangaroo rat. Baseline impacts include costs that would be 
required because the San Bernardino

[[Page 61953]]

kangaroo rat is found in the area. The DEA also quantifies incremental 
impacts, which are impacts that would not exist but for the designation 
of critical habitat. These costs occur above and beyond those 
associated with San Bernardino kangaroo rats living in the area.
    Comment 51: One commenter pointed to page 11 of the Draft Addendum 
to the Economic Analysis, stating that a proponent agency does not have 
the legal authority to determine if a project will adversely affect a 
federally endangered species or its habitat. The commenter noted that 
these determinations are required to have the Service's concurrence.
    Our Response: The commenter was concerned with the following 
passage on page 11 of the Draft Addendum: ``[San Bernardino County 
Flood Control District (SBCFCD)] maintains in-house biologists who 
review all proposed projects to determine whether the project may 
affect the San Bernardino kangaroo rat or its habitat. San Bernardino 
County Flood Control District self-regulates by avoiding projects in 
critical habitat that the biologists determine may adversely affect the 
San Bernardino kangaroo rat or its habitat. If SBCFCD determines that 
the project is warranted despite the potential adverse effects to the 
San Bernardino kangaroo rat (e.g., if there is a potential for 
substantial flood damage), then SBCFCD will undertake the project and 
consult with the Service.''
    As explained in this passage, SBCFCD avoids projects that it thinks 
may warrant consultation with the Service for impacts to the San 
Bernardino kangaroo rat or its habitat. San Bernardino County Flood 
Control District consults with the Service when it undertakes a project 
in an area occupied by San Bernardino kangaroo rats or within the San 
Bernardino kangaroo rat critical habitat boundaries. San Bernardino 
County Flood Control District does not determine if a project will or 
will not adversely affect a federally endangered species or its habitat 
independently from the Service.

Summary of Changes From the 2002 Critical Habitat Designation

    We stated in our April 23, 2002 rule that we designated ``33,295 ac 
(13,485 ha)'' of critical habitat for the San Bernardino kangaroo rat. 
When corrected for summing, rounding, and conversion errors, the 2002 
designation of critical habitat totaled 33,291 ac (13,472 ha). The 
areas identified in this final rule constitute a revision to the 2002 
designation. In this final rule we are designating 7,779 ac (3,148 ha) 
of land in Riverside and San Bernardino counties, California. Below we 
describe the changes in each unit between the 2002 final critical 
habitat rule, the 2007 revised proposed critical habitat rule, and this 
2008 final revised critical habitat rule for the San Bernardino 
kangaroo rat (summarized in Table 1). Discrepancies in reported 
acreages between the 2002 designation and this final revision are due 
to refinements in our ability to more precisely calculate acreages. The 
entire final revised critical habitat designation (i.e., 7,779 ac 
(3,148 ha)) is contained within the area included in the 2002 final 
critical habitat designation.
    Our revised critical habitat designation is substantially smaller 
than the existing designation. Updated information that became 
available to us in the five years since the previous designation 
indicates that we erroneously designated some areas. Improved and 
updated biological information submitted to our office and gained 
during site visits in December 2006 and January 2007 allowed us to: (1) 
Revise the criteria used to identify critical habitat and focus 
attention on core populations in undisturbed habitat with retained 
fluvial dynamics; (2) more specifically define and map areas supporting 
the physical or biological features for this subspecies; and (3) 
precisely ground-truth areas included in the 2002 critical habitat 
designation. As described in detail below, our review of updated 
information led us to revise our criteria used to identify critical 
habitat (see ``Criteria Used To Identify Critical Habitat'' section) 
and resulted in our removal of several areas that were previously 
designated as we determined that these areas do not meet the definition 
of critical habitat.
    The 2000 proposed rule and the 2002 critical habitat designation 
describe the geographical area occupied by the San Bernardino kangaroo 
rat at the time it was listed in 1998, including the Santa Ana River, 
Lytle Creek, Cajon Creek, San Jacinto River, City Creek, Etiwanda fan 
and wash, Reche Canyon and South Bloomington. All units designated as 
critical habitat in 2002 (i.e., Santa Ana River, Lytle/Cajon/Cable 
creeks, San Jacinto River/Bautista Creek, and Etiwanda fan) were 
considered occupied at the time of listing and designation. The 
background section of the 2002 critical habitat designation provides 
justification explaining how the original listing rule significantly 
underestimated the amount of area occupied by the subspecies at the 
time of listing and concludes that a minimum of 32,507 ac (as 
mathematically converted), or 13,155 ha, were occupied at the time of 
listing. The criteria utilized for the 2002 designation identified 
areas that supported few occurrence records for inclusion in the 
designation. We have now determined, based on the best currently 
available information, that such areas of low density occupation (or 
sporadic occupancy) are not likely to contribute to the long-term 
conservation of this subspecies as they do not support core 
populations, are not capable of supporting a core population in the 
near future, and they provide little protection against stochastic 
events. Areas that contain the physical and biological features that 
are essential to the conservation of this subspecies, identified as the 
subspecies' PCEs laid out in the appropriate quantity and spatial 
arrangement, are those areas capable of supporting a core population of 
San Bernardino kangaroo rats and providing protection against 
stochastic events. Therefore, some areas supporting low density or 
sporadic occupancy designated in 2002 were removed from this revised 
designation. Finally, we employed refined mapping techniques using 
updated aerial imagery in the current revision, which allowed us to 
more precisely map areas that contain PCEs. This refined approach 
allowed us to remove areas that do not meet the definition of critical 
habitat.
    The main differences in this revised designation compared to the 
2002 critical habitat designation include the following:
    (1) On the basis of our new analyses involving the factors 
described above, we determined that portions of the 2002 (i.e., 
existing) Unit 1 (Santa Ana River), Unit 2 (Lytle and Cajon Creeks), 
Unit 3 (San Jacinto River), and all of Unit 4 (Etiwanda Alluvial Fan 
and Wash) do not contain PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the San Bernardino 
kangaroo rat. Therefore, we are not including these areas in our 
revision to critical habitat. The following paragraphs provide unit by 
unit explanations why areas previously designated as critical habitat 
do not meet the definition of critical habitat for the San Bernardino 
kangaroo rat.
    We removed approximately 4,658 ac (1,885 ha) within Unit 1 (Santa 
Ana River) from our revision to critical habitat, largely because these 
areas do not contain the physical and biological features that are 
essential to the conservation of this subspecies, identified as the 
subspecies' PCEs laid out in the appropriate quantity and spatial 
arrangement. Below we describe the six general areas removed and the

[[Page 61954]]

habitat status in those areas. Occurrence data from these six areas 
indicate that none of these areas currently support or are capable of 
supporting core populations in the near future. The inability to 
support a core population further underscores the habitat data 
indicating that these areas do not contain the physical and biological 
features that are essential to the conservation of the San Bernardino 
kangaroo rat. First, areas along Mill Creek, especially to the north, 
do not provide suitable habitat for this subspecies. Second, a flood 
control levee south of Mill Creek cut off habitat from fluvial 
processes, which resulted in overgrown vegetation and water retention 
basins that are unsuitable habitat conditions for the subspecies. 
Third, the stretch of the Santa Ana River below Seven Oaks Dam and 
areas to the north and west of a large barrow pit are cut off from 
fluvial processes and water retention basins have been constructed in 
the area. Fourth, a large area within the 2002 critical habitat 
designation near Plunge Creek extending south and west to the 
confluence of City Creek with the Santa Ana River is degraded due to 
mining operations, flood control structures (and the subsequent loss of 
fluvial influence necessary to maintain habitat), and water retention 
basins. Fifth, the habitat downstream of 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. 
Sixth, there are also a number of smaller areas of degraded habitat 
around the periphery of the 2002 critical habitat designation that are 
not included in this revision to critical habitat because these areas 
do not contain the physical and biological features essential to the 
conservation of this subspecies.
    We removed approximately 9,284 ac (3,757 ha) within Unit 2 (Lytle 
and Cajon Creeks) from our revision to critical habitat, largely 
because these areas do not contain the physical and biological features 
that are essential to the conservation of this subspecies. Below we 
describe the six general areas removed and the habitat status in those 
areas. Occurrence data from these six areas indicate that none of these 
areas currently support or are capable of supporting core populations 
in the near future. The inability to support a core population further 
underscores the habitat data indicating that these areas do not contain 
the physical and biological features that are essential to the 
conservation of the San Bernardino kangaroo rat. First, one separate 
parcel northeast of the main Lytle/Cajon Creek unit (labeled as Unit 2 
B in the 2002 critical habitat rule) contains habitat that is degraded 
and this area is largely unoccupied. Second, the southernmost portion 
of Lytle Creek contains habitat that is degraded through surface mining 
and flood control structures, making this area unsuitable for the 
subspecies. Third, 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. Fourth, portions of habitat along the Lytle Creek arm are 
degraded from sand and gravel mining operations and associated 
infrastructure. Fifth, after formal consultation with the Service was 
completed, approximately 670 ac (271 ha) within the 2002 critical 
habitat designation that is north of Lytle Creek and east of I-15 is 
currently under development for the Lytle Creek North development 
project. Sixth, 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. It was suggested in the 
2002 critical habitat designation that this area could provide 
connectivity with the Etiwanda fan; however, this area is void of 
fluvial influence, does not support a core population, and is cut off 
from Lytle Creek and the Etiwanda fan by extensive roadways. Therefore, 
we believe that demographic or genetic connectivity through the remnant 
flood plain south of Lytle Creek is unlikely. Because these areas do 
not contain the physical and biological features that are essential to 
the conservation of this subspecies, we are not including them in the 
revision to critical habitat.
    A portion of a separate parcel designated in 2002 as part of Unit 2 
is now designated as Unit 4 (Cable Creek Wash) in this revised critical 
habitat designation (see Table 1 and the Unit Descriptions section).
    We removed approximately 4,757 ac (1,925 ha) within Unit 3 (San 
Jacinto River) from our revision to critical habitat, largely because 
these areas do not contain the physical and biological features that 
are essential to the conservation of this subspecies. Below we describe 
the five general areas removed and the habitat status in those areas. 
Occurrence data from these five areas also indicate that none of these 
areas currently support or are capable of supporting core populations 
in the near future. The inability to support a core population further 
underscores the habitat data indicating that these areas do not contain 
the physical and biological features that are essential to the 
conservation of the San Bernardino kangaroo rat. First, portions of 
Bautista Creek and the downstream reach of the San Jacinto River are 
largely channelized and do not contain the PCEs or provide suitable 
habitat for the San Bernardino kangaroo rat. Second, we included in the 
2002 critical habitat designation the downstream portion of the San 
Jacinto River (downstream of State Route 79) because we believed the 
area contained essential physical and biological features that would 
reduce risks to the subspecies from stochastic events. Based on our 
evaluation of the best scientific information currently available, we 
no longer consider this area to meet the definition of critical habitat 
because site visits have revealed that this channelized section of the 
San Jacinto River is less alluvial and more riparian in nature, and 
thus is unlikely to reduce the risks from stochastic events and does 
not contain the physical and biological features essential to the 
conservation of this subspecies. Third, the channelized areas of the 
San Jacinto River and Bautista Creek prevent connectivity with the core 
population in the San Jacinto wash. Fourth, at the time of the 2002 
critical habitat rule, we believed that Tribal lands in Unit 3 were 
occupied, despite a lack of occurrence data for these areas. We 
believed this because the Tribal lands were continuous with adjacent 
areas of habitat in the San Jacinto River known to be occupied; 
however, we still 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 designating critical habitat on Tribal lands in this 
revised critical habitat designation (see ``Government-to-Government 
Relationship with Tribes'' section). Fifth, in the eastern most 
(upstream) portion of the San Jacinto River that was designated as 
critical habitat in 2002, we do not have occurrence data to indicate 
that the area is occupied or supports a core population of San 
Bernardino kangaroo rats. Based on the best scientific information 
currently available, we no longer believe these areas contain the 
physical and biological features that are essential to the conservation 
of this subspecies, and are not including them in the revision to 
critical habitat.
    A portion of a separate parcel designated as part of Unit 3 in 2002 
is now designated as Unit 5 (Bautista Creek) in this revised critical 
habitat designation (see Table 1 and the ``Unit Descriptions'' 
section).
    We removed approximately 4,820 ac (1,951 ha) within Unit 4 
(Etiwanda Alluvial Fan and Wash) from our

[[Page 61955]]

revision to critical habitat, largely because these areas do not 
contain the physical and biological features that are essential to the 
conservation of this subspecies. In the 2002 critical habitat rule, we 
stated that the Etiwanda fan was likely occupied by a small remnant 
population of the subspecies, but urban development and existing and 
proposed flood control structures will preclude the occurrence of 
future natural fluvial processes in portions of the unit. Additionally, 
we stated that despite these conditions, the San Bernardino kangaroo 
rat persists in some areas of the unit. Since the 2002 critical habitat 
designation, flood control structures and urban development have 
continued to alter the natural flood regime of this alluvial fan 
resulting in poor habitat conditions. Occurrence data from these areas 
also indicates that none of these areas currently support or are 
capable of supporting core populations in the near future. The 
inability to support a core population further underscores the habitat 
data indicating that these areas do not contain the physical and 
biological features that are essential to the conservation of the San 
Bernardino kangaroo rat. Furthermore, site visits confirmed that 
occupied areas within this unit do not contain the PCEs in the 
appropriate quantity and spatial arrangement necessary to sustain a 
core population of this subspecies into the future. Connectivity with 
the nearest core population in Unit 2 is precluded by development and 
roadways. Because these areas do not contain the physical and 
biological features that are essential to the conservation of this 
subspecies, we are not including them in the revision to critical 
habitat.
    (2) We re-evaluated and revised the PCEs as needed in light of 
applicable case law and current Service guidelines and policies. We 
revised the PCEs to provide more specificity with regard 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 included a range of the preferred percentage of vegetative cover. 
We note that revisions to the PCEs alone did not result in the removal 
of existing critical habitat from this revised critical habitat 
designation, nor did it result in the identification of areas outside 
the 2002 designation that meet the definition of critical habitat.
    (3) In the 2002 critical habitat mapping process, we used aerial 
photography at a scale of 1:24,000 and 2001 digital orthophotography. 
In the process of mapping and delineating boundaries for this revised 
critical habitat designation we used USDA NAIP 2005, 1 meter True Color 
Aerial Photography. This updated aerial imagery allowed us to more 
accurately and precisely delineate boundaries of critical habitat.
    (4) In addition to the areas that we removed from the 2002 
designation in this final revision to critical habitat, we also 
excluded approximately 2,917 ac (1,180 ha) under section 4(b)(2) of the 
Act (see ``Summary of Changes From the 2007 Proposed Rule To Revise 
Critical Habitat'' and ``Exclusions Under Section 4(b)(2) of the Act'' 
sections of this final rule for detailed discussion of the exclusions).

 Table 1--Changes Between the April 23, 2002, Critical Habitat Designation, the June 19, 2007, Proposed Designation, and This Final Revised Designation
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                2007 proposed
                                                                                      2002 designation of      revision to the       2008 final revised
Critical habitat unit in this final          County            Area identification    critical habitat (67     critical habitat       critical habitat
                rule                                            used in this rule    FR 19812) and ac (ha)    designation (72 FR     designation and ac
                                                                                                              33808) and ac (ha)            (ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash............  San Bernardino........  Plunge Creek..........  All 3 areas included   Small section          All 3 areas included
                                                                                      in Unit 1; 8,935 ac    proposed as part of    as Unit 1; 3,258 ac
                                                                                      (3,616 ha).            Unit 1; 3,623 ac       (1,318 ha).
                                                                                                             (1,466 ha) \3\.
                                                             Mill Creek............  ditto................  Considered not to be   ditto.
                                                                                                             essential; not
                                                                                                             proposed \3\.
                                                             Santa Ana River and     ditto................  Included as part of    ditto.
                                                              City Creek.                                    Unit 1; 3,623 ac
                                                                                                             (1,466 ha).
2. Lytle/Cajon Creek Wash..........  San Bernardino........  Lytle Creek and Cajon   Both areas included    Included as part of    Included as Unit 2;
                                                              Creek.                  in Unit 2; 13,970 ac   Unit 2; 4,686 ac       3,421 ac (1,384 ha).
                                                                                      (5,653 ha).            (1,896 ha).
                                                             Cable Creek...........  ditto................  Considered not to be   Included as Unit 4;
                                                                                                             essential; not         483 ac (195 ha).
                                                                                                             proposed \3\.
3. San Jacinto River Wash..........  Riverside.............  San Jacinto River.....  Both areas included    Included as Unit 3;    Included as Unit 3;
                                                                                      in Unit 3; 5,565 ac    769 ac (311 ha).       506 ac (205 ha).
                                                                                      (2,252 ha).
                                                             Bautista Creek........  ditto................  Considered not to be   Included as Unit 5;
                                                                                                             essential; not         111 ac (45 ha).
                                                                                                             proposed \3\.
4. Cable Creek Wash................  San Bernardino........  Cable Creek...........  Included as part of    Considered not to be   Included as Unit 4;
                                                                                      Unit 2; 13,970 ac      essential; not         483 ac (195 ha).
                                                                                      (5,653 ha).            proposed \3\.
5. Bautista Creek..................  Riverside.............  Bautista Creek........  Included as part of    Considered not to be   Included as Unit 5;
                                                                                      Unit 3; 769 ac (311    essential; not         111 ac (45 ha).
                                                                                      ha).                   proposed \3\.
Etiwanda Alluvial Fan \1\..........  San Bernardino........  Etiwanda Alluvial Fan.  Unit 4; 4,820 ac       Considered not to be   Determined not to be
                                                                                      (1,950 ha).            essential; not         essential.
                                                                                                             proposed.
 

[[Page 61956]]

 
    Totals.........................                                                  33,291 ac \2\ (13,472  9,078 ac (3,674 ha)..  7,779 ac (3,148 ha).
                                                                                      ha).
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ The Etiwanda Alluvial Fan was considered Unit 4 in the 2002 final critical habitat rule (67 FR 19812); however, the Cable Creek Wash is now
  considered Unit 4 in this final revised critical habitat rule.
\2\ The 2002 rule incorrectly stated that ``33,295 (13,474 ha)'' were designated.
\3\ These areas were added to proposed critical habitat in the April 16, 2008, NOA (73 FR 20581).

Summary of Changes From the 2007 Proposed Rule To Revise Critical 
Habitat

    The areas identified in this final revised rule also constitute a 
revision of the areas we proposed to designate as critical habitat for 
the San Bernardino kangaroo rat on June 19, 2007 (72 FR 33808). In 
light of substantial public comments and a revision of our criteria 
used to identify critical habitat, we reevaluated and included in this 
final rule four areas that were not included in the 2007 proposed rule. 
These areas (described below) include Mill Creek and Plunge Creek in 
Unit 1, and Cable Creek and Bautista Creek in Units 4 and 5. These 
additions to proposed critical habitat were announced in the April 16, 
2008, NOA (73 FR 20581). The reduction in total area from the 2007 
proposed critical habitat designation is primarily the result of 
exclusions of habitat under section 4(b)(2) of the Act (described 
below). The main differences between the 2007 proposed critical habitat 
rule and this final rule include the following:
    (1) During the first and second comment periods for the proposed 
rule, we received significant comments from the public, including 
biologists familiar with the San Bernardino kangaroo rat, which led us 
to reevaluate and revise our criteria used to identify critical 
habitat. Please see the ``Changes to Proposed Revised Critical 
Habitat'' section of the April 16, 2008, NOA (73 FR 20581), and the 
``Criteria Used To Identify Critical Habitat'' section of this final 
rule for more information on our revised criteria.
    (2) During the first and second comment periods for the proposed 
rule, we received significant comments from the public, including 
biologists familiar with the San Bernardino kangaroo rat, on areas 
essential to the subspecies that should be included in the designation. 
As a result of these comments, new information received, and revision 
of the criteria used to identify critical habitat, we reevaluated the 
following areas: Mill Creek, Plunge Creek (including areas providing 
habitat connection between the Plunge Creek wash and Santa Ana River 
wash), Cable Creek wash, and Bautista Creek. All of these areas are 
were designated as critical habitat for the San Bernardino kangaroo rat 
in 2002 (see 50 CFR 17.95(a); 67 FR 19812, April 23, 2002); however, we 
did not propose these areas as critical habitat in the June 19, 2007, 
proposed revision to critical habitat (72 FR 33808). Below we describe 
each area we reevaluated, explain why we did not include the area in 
the 2007 proposed rule, and explain why we are including these areas in 
the final revised designation of critical habitat.

Mill Creek

    Mill Creek flows into and joins the Santa Ana River wash (Unit 1) 
in the eastern side of the unit. We did not include the Mill Creek area 
in the 2007 proposed rule (72 FR 33808), although we indicated that it 
was considered important to the subspecies by contributing fluvial 
dynamics to the Santa Ana River wash. At the time of the proposed 
revised rule, we had limited survey data to indicate Mill Creek was 
occupied by the San Bernardino kangaroo rat. Furthermore, we determined 
this area contained large expanses of unsuitable habitat. As such, we 
did not include the majority of lower Mill Creek in the June 19, 2007, 
proposed revision to critical habitat.
    During the public comment period, we received a number of comments 
highlighting the importance of Mill Creek as an area not only occupied 
by the San Bernardino kangaroo rat connected to and contiguous with the 
core population in the Santa Ana wash, but also indicating that the 
area contains the physical and biological features essential to the 
conservation of this subspecies. Upon receiving comments from the 
public about Mill Creek, we reevaluated our data in this area. Evidence 
of extensive burrowing activity observed by Service biologists 
indicates this area is occupied by kangaroo rats, and live-trapping 
confirms that Mill Creek is occupied by the San Bernardino kangaroo rat 
subspecies. Based on this information, we determined that the reach of 
Mill Creek occupied by the San Bernardino kangaroo rat to its 
confluence with the Santa Ana River is important to the recovery of the 
subspecies because it is the only large stretch of contiguous, occupied 
habitat for the San Bernardino kangaroo rat within Unit 1 that is not 
fragmented by development (e.g., roads, aggregate mining pits). 
Further, we confirmed that habitat at Mill Creek is connected to and 
contiguous with habitat supporting the core population in Unit 1, and 
therefore, San Bernardino kangaroo rats inhabiting Mill Creek are part 
of the Santa Ana River wash core population.
    We also received comments about the importance of Mill Creek as a 
source of sediment through natural fluvial dynamics to the majority of 
the Santa Ana River wash (Unit 1). Existing infrastructure (e.g., 
levees, culverts, concrete-lined channels, bridge abutments and other 
fill) affects the function of the Santa Ana River and its tributaries 
within the historical and current range of this subspecies. As a 
result, the historical floodplain dynamics within the upper Santa Ana 
River watershed are permanently altered (MEC 2000, pp. 175-176). 
Periodic flooding provides natural scour and sediment deposition, 
decreases vegetation density and cover, and naturally maintains the 
alluvial sage scrub that supports this subspecies. Mill Creek is the 
only remaining source of alluvial sediments remaining within Unit 1 
that has not been significantly altered by flood control structures, 
water diversions, or other activities. Although the Santa Ana River is 
incised just downstream from its confluence with Mill Creek, floodplain 
elevations downstream (e.g., downstream of Opal Street in Mentone) 
allow overbank scour

[[Page 61957]]

and sediment deposition during even small- to moderate-intensity 
storms. The periodic deposition of sediments from Mill Creek helps to 
naturally maintain the soil and alluvial fan sage scrub (i.e., the PCEs 
upon which the survival and recovery of the San Bernardino kangaroo rat 
in Unit 1 depend) within critical habitat along the Santa Ana River as 
suitable habitat to support the core population of San Bernardino 
kangaroo rats within this unit. We determined that this area of Mill 
Creek meets the definition of critical habitat, and we are including 
388 ac (157 ha) of Mill Creek in the final revision to critical habitat 
for Unit 1.

Plunge Creek

    Plunge Creek is located north of the main stem of the Santa Ana 
River in Unit 1 and is largely isolated from the core population of San 
Bernardino kangaroo rats in the wash by sand and gravel mining 
operations. A portion of Plunge Creek was included in the June 19, 
2007, proposed revision to critical habitat, but no critical habitat 
connection existed between this area of Plunge Creek and other portions 
of proposed Unit 1.
    We did not propose revised critical habitat connecting Plunge Creek 
to other critical habitat areas in proposed Unit 1 because, although 
lands in this area are managed by the Bureau of Land Management (BLM), 
the BLM is considering the revision of their South Coast Resource 
Management Plan and an exchange of land within their existing Area of 
Critical Environmental Concern (ACEC) for lands that are privately 
owned within the Santa Ana River wash. Should this exchange occur, we 
anticipate that the Upper Santa Ana River Habitat Conservation Plan 
(USAR HCP, also known as ``Plan B'') would be proposed. The land 
exchange would occur to facilitate aggregate mining, water 
conservation, roadway improvements, and other activities in areas that 
are now within the ACEC, while other, less-disturbed habitat areas for 
the San Bernardino kangaroo rat would be conserved through the 
implementation of the USAR HCP.
    Although we have been working with the BLM and associated 
stakeholders on the land exchange for many years, we have not yet been 
asked by the BLM to formally consult on this action. However, during 
collaboration with the BLM and stakeholders in the USAR HCP, we agreed 
upon a potential future mining boundary. Our June 19, 2007, proposed 
revision to critical habitat did not include any areas identified in 
this collaboration as areas where future mining may occur.
    We received significant comment from the public highlighting the 
importance of Plunge Creek to the conservation of the San Bernardino 
kangaroo rat. Commenters were concerned that the proposed revision to 
critical habitat around Plunge Creek (which is north of existing and 
proposed mining pits) did not connect to critical habitat in the Santa 
Ana River mainstem south of these pits. Plunge Creek is extensively 
modified upstream of Greenspot Road by levees and the bridge crossing 
the creek on Greenspot Road, and the creek at Orange Street is 
completely channelized and diverted from its historical connection with 
the Santa Ana River. However, significant sediment deposition occurs 
immediately downstream of the Greenspot Road bridge and provides for 
habitat renewal in portions of the adjacent WSPA and the reach of 
Plunge Creek from Greenspot Road to its diversion at Orange Street. 
This area of relatively undisturbed alluvial scrub is occupied by the 
San Bernardino kangaroo rat. Commenters, including biologists familiar 
with the San Bernardino kangaroo rat, stated that it is important for 
the persistence of the subspecies in Unit 1 that the demographic and 
genetic connectivity of populations in Plunge Creek and the Santa Ana 
wash be conserved.
    Based on information received and additional analysis of our own 
data, we determined that the population of San Bernardino kangaroo rats 
in Plunge Creek is at risk of local extirpation without a habitat 
connection in Unit 1 to provide for demographic and genetic exchange 
between San Bernardino kangaroo rats in Plunge Creek and the Santa Ana 
River main stem area. We are including approximately 265 ac (107 ha) of 
occupied habitat in the final revision to critical habitat for Unit 1. 
This additional area, which contains the physical and biological 
features essential to the conservation of the subspecies, provides 
connectivity between Plunge Creek and the core population in the Santa 
Ana River wash.

Cable Creek Wash

    The Cable Creek wash is located northeast of the Lytle/Cajon Creek 
wash (within current Unit 2) on the opposite side of Interstate 215 (I-
215). This wash, although occupied, is isolated from proposed Unit 2 by 
I-215, flood control structures, and other development. Cable Creek is 
channelized where it approaches the freeway. The concrete channel 
eventually crosses underneath I-215 to flow into the Lytle/Cajon wash, 
but the channel precludes the movement of individual San Bernardino 
kangaroo rats between these areas. Hence, any genetic or demographic 
connection between San Bernardino kangaroo rats in Cable Creek wash and 
the Lytle/Cajon wash is likely minimal to non-existent. We did not 
propose Cable Creek wash in the June 19, 2007, proposed revision to 
critical habitat because of the disconnect between this population at 
Cable Creek and the larger population of San Bernardino kangaroo rats 
at Lytle/Cajon Creek.
    During the comment periods for the San Bernardino kangaroo rat 
proposed critical habitat revision, we received significant comment 
from the public about Cable Creek wash. Commenters stated that this 
wash contains essential physical and biological features, retains 
fluvial dynamics, and is one of the few areas of occupied San 
Bernardino kangaroo rat habitat within the remaining range of the 
subspecies. Further, this area appears large enough to support a 
population of San Bernardino kangaroo rats indefinitely, despite its 
disconnection from the core population in the Lytle/Cajon Creek wash. 
Based on information received and additional analysis of our own data, 
we determined that Cable Creek contains quality San Bernardino kangaroo 
rat habitat, and repeated positive survey results suggest this area 
supports a self-sustaining population of this subspecies. Additionally, 
we received comments suggesting this area could be important for the 
long-term conservation of this subspecies in the future if population 
levels in the core area of the Lytle/Cajon wash were to decrease due to 
catastrophic events. The demographic isolation of Cable Creek from 
Lytle/Cajon Creek occurred relatively recently on an evolutionary time 
scale, and therefore, we agree that the Cable Creek wash population 
could be utilized to augment recovery of the Lytle/Cajon wash 
population. Based on these comments, we revised our criteria 
identifying critical habitat to include areas disconnected from core 
population areas that may be important for the long-term conservation 
of the subspecies. We have determined that approximately 483 ac (195 
ha) of land in the Cable Creek wash contain the physical and biological 
features essential to the conservation of the subspecies, and we are 
designating this area in a new critical habitat Unit 4.

Bautista Creek

    Bautista Creek drains into the San Jacinto River wash from the 
south, flowing into an area supporting the core population of San 
Bernardino kangaroo rats within the San Jacinto River (proposed Unit 
3). Bautista Creek is

[[Page 61958]]

channelized approximately 2 miles (3.2 kilometers) downstream of the 
San Bernardino National Forest boundary and now flows for several miles 
through a 4-sided concrete box channel to its confluence with the San 
Jacinto River. This steep-sided channel effectively isolates San 
Bernardino kangaroo rats in Bautista Creek from those in the San 
Jacinto River. Minimal genetic connectivity may exist between the 
Bautista Creek and San Jacinto River populations by way of highly 
disturbed, upland agricultural fields along the length of the concrete 
channel (if those agricultural areas are occupied at some low level by 
the subspecies). Demographic connectivity of the two populations 
through these highly disturbed agricultural areas is unlikely, although 
an occasional individual may survive being washed downstream through 
the channel during a high flow event. However, such an event is likely 
so rare it is considered relatively meaningless to the population in 
terms of demographic or genetic exchange between individual animals in 
Bautista Creek and the San Jacinto River. It is also unlikely that San 
Bernardino kangaroo rats could successfully migrate from the San 
Jacinto River upstream through the concrete channel to the Bautista 
Creek area. Based on this information, we did not include Bautista 
Creek in the June 19, 2007, proposed revision to critical habitat.
    We received significant comment during the public comment periods 
about the unchannelized reaches of Bautista Creek that were designated 
in the April 23, 2002, final rule as critical habitat (67 FR 19812). 
These comments focused on the unimpeded fluvial dynamics that maintain 
existing physical and biological features and occupancy by the San 
Bernardino kangaroo rat in this area. It was noted that given the 
extent and quality of habitat in this area, the population of San 
Bernardino kangaroo rats in Bautista Creek is likely self-sustaining in 
the long-term despite the lack of habitat connectivity with the San 
Jacinto River wash. We determined that the unchannelized portion of 
Bautista Creek is occupied as documented through live-trapping results, 
and that this area retains fluvial dynamics maintaining the physical 
and biological features required by the San Bernardino kangaroo rat. 
Additionally, we received comments suggesting the Bautista Creek 
population is important for the long-term conservation of the San 
Bernardino kangaroo rat, as it provides a safeguard against population 
declines and local extinction in the San Jacinto River wash unit 
(proposed Unit 3). The demographic isolation of Bautista Creek from the 
San Jacinto River occurred relatively recently on an evolutionary time 
scale, and therefore, we agree that the Bautista Creek population could 
be utilized to augment recovery of the San Jacinto River wash 
population. The comments we received also highlighted the importance of 
conserving the Bautista Creek area as it represents the southernmost 
extent of the range for the San Bernardino kangaroo rat. Based in part 
on these comments, we revised our criteria identifying critical habitat 
to include disconnected areas that may be important for the long-term 
conservation of the subspecies. We have determined that approximately 
443 ac (179 ha) of land in Bautista Creek contain the physical and 
biological features essential to the conservation of the subspecies, 
and we are designating this area in a new critical habitat Unit 5.
    In total, we added approximately 1,579 ac (639 ha) of Federal and 
private land to the June 19, 2007, proposed revision to critical 
habitat for the San Bernardino kangaroo rat (Table 2) as described in 
the April 16, 2008, NOA. Of these 1,579 ac (639 ha), approximately 349 
ac (141 ha) are excluded from this final critical habitat designation 
under section 4(b)(2) of the Act based on benefits provided to the 
subspecies as a result of partnerships that include development of 
management plans discussed below.
    (3) In the 2007 proposed rule, we discussed an integrated water 
recharge and recovery program to be implemented by Eastern Municipal 
Water District at the confluence of the San Jacinto River and Bautista 
Creek within existing critical habitat Unit 3. The Service issued a 
biological opinion for this project on November 16, 2006 (Service 2006, 
FWS-WRIV-4051.5) which found that the action did not adversely modify 
the currently designated critical habitat. The project would 
permanently impact approximately 39 ac (16 ha) of habitat through the 
construction of well sites in upland habitat and groundwater recharge 
basins in the floodplain of the San Jacinto River. In the proposed rule 
we stated that we were not proposing these areas as revised critical 
habitat; it was anticipated that these areas would no longer contain 
the PCEs upon construction of the well sites and recharge basins. 
During the public comment periods, we received public comment 
indicating these areas contain the essential physical and biological 
features. Also, recent survey data has indicated the current population 
of San Bernardino kangaroo rats in these areas is larger than 
previously believed, and that project impacts would exceed the 
identified level of anticipated incidental take during preconstruction 
trapping within the project site. Formal consultation with the Service 
on the Eastern Municipal Water District project has been reinitiated, 
and construction within the project site has ceased. Because these 
areas still contain the essential physical and biological features, we 
determined that the 39 ac (16 ha) Eastern Municipal Water District 
project site within Unit 3 meets the definition of critical habitat. 
However, we are excluding these 39 ac (16 ha) under section 4(b)(2) of 
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of 
this final rule for a detailed discussion of this exclusion).
    (4) We proposed lands covered by the WSPA Management Plans for 
exclusion under section 4(b)(2) of the Act. We determined that the 
benefits of exclusion outweigh the benefits of inclusion on these 
lands; therefore, we excluded approximately 751 ac (304 ha) of lands in 
Unit 1 covered by the WSPA Management Plans under section 4(b)(2) of 
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of 
this final rule for a detailed discussion of this exclusion).
    (5) We proposed lands covered by the Former Norton Air Force Base 
CMP for exclusion under section 4(b)(2) of the Act. We determined that 
the benefits of exclusion outweigh the benefits of inclusion on these 
lands; therefore, we excluded approximately 267 ac (108 ha) of lands in 
Unit 1 covered by the Former Norton Air Force Base CMP under section 
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section of this final rule for a detailed discussion of this 
exclusion).
    (6) We proposed lands covered by the Cajon Creek HCMA HEMP for 
exclusion under section 4(b)(2) of the Act. We reported in the proposed 
rule that there was an acreage discrepancy on the actual size of the 
Cajon Creek HCMA HEMP and we proposed to exclude approximately 1,271 ac 
(514 ha) from the final revision to critical habitat. Following 
publication of the proposed rule, Vulcan Materials Co. (who manages the 
area) re-evaluated the original survey data for the Cajon Creek HCMA 
HEMP, and conducted additional surveys that demonstrate the Cajon Creek 
HCMA HEMP is approximately 1,265 ac (512 ha) in size. We determined 
that the benefits of exclusion outweigh the benefits of inclusion on 
these lands; therefore, we have excluded approximately 1,265 ac (512 
ha) of lands in Unit 2 covered by

[[Page 61959]]

the Cajon Creek HCMA HEMP under section 4(b)(2) of the Act (see 
``Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion of this exclusion).
    (7) We proposed lands covered by the Western Riverside County MSHCP 
for exclusion under section 4(b)(2) of the Act. We determined that the 
benefits of exclusion outweigh the benefits of inclusion on these 
lands; therefore, we excluded approximately 595 ac (241 ha) of private 
and permittee-owned Public/Quasi-Public lands in Unit 3 and Unit 5 
covered by the Western Riverside County MSHCP under section 4(b)(2) of 
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section of 
this final rule for a detailed discussion of this exclusion).
    Taking into consideration the above additions to the 2007 proposed 
revision to the critical habitat designation, and exclusions under 
section 4(b)(2) of the Act, we are designating approximately 7,779 ac 
(3,148 ha) of land in San Bernardino and Riverside Counties as critical 
habitat in this final rule.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (1) The specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (2) 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 the use 
of all methods and procedures that are necessary to bring any 
endangered 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, transplantation, and in the extraordinary case where 
population pressures within a given ecosystem cannot otherwise be 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7(a)(2) of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) of the Act requires consultation on 
Federal actions that may affect 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 the government or public to access private 
lands. Such designation does not require implementation of restoration, 
recovery, or enhancement measures by private landowners. Where a 
landowner requests Federal agency funding or authorization for an 
action that may affect a listed species or critical habitat, the 
consultation requirements of section 7(a)(2) would apply, but even in 
the event of a destruction or adverse modification finding, the 
landowner's obligation is not to restore or recover the species, but to 
implement reasonable and prudent alternatives to avoid destruction or 
adverse modification of critical habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain the physical and biological features that are essential to 
the conservation of the species, and be included only if those features 
may require special management considerations or protection. 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 PCEs 
laid out in the appropriate quantity and spatial arrangement essential 
to the conservation of the species). Under the Act, we can designate 
critical habitat in areas outside the geographical area occupied by the 
species at the time it is listed as critical habitat only when we 
determine that those areas are essential for the conservation of the 
species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our 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 we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process 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.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that we may 
eventually determine are necessary for the recovery of the species, 
based on scientific data not now available to the Service. For these 
reasons, a critical habitat designation does not signal that habitat 
outside the designated area is unimportant or may not promote the 
recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act. They are also 
subject to the regulatory protections afforded by section 9 of the Act 
and the section 7(a)(2) jeopardy standard, as determined on the basis 
of the best available scientific information at the time of the agency 
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, HCPs, or other species conservation planning 
efforts if information available at the time of these planning efforts 
calls for a different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas occupied by 
the species at the time of listing to designate as critical habitat, we 
consider those physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection. We

[[Page 61960]]

consider the physical and biological features to be the PCEs laid out 
in the appropriate quantity and spatial arrangement essential to the 
conservation of the species. The PCEs 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, or rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historical, geographical, and ecological 
distributions of a species.
    We derive the PCEs required for the San Bernardino kangaroo rat 
from its biological needs as described below, in the proposed rule to 
revise critical habitat published in the Federal Register on June 19, 
2007 (72 FR 33808), and in the NOA published in the Federal Register on 
April 16, 2008 (73 FR 20581). Additional information can also be found 
in the final listing rule published in the Federal Register on 
September 24, 1998 (63 FR 51005), and in the original final critical 
habitat rule published in the Federal Register on April 23, 2002 (67 FR 
19812).

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.
    Few studies have occurred 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 restricted to burrowing in soil that 
has not been compacted, such as alluvial deposits of sand or sandy loam 
(Price 2007, p. 2). As a result of limited digging ability, Merriam's 
kangaroo rats 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 averaging 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 essential 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. Price (2007, p. 2) suggests that 
kangaroo rats associate with sparsely vegetated habitats because

[[Page 61961]]

dense vegetation produces litter that covers the soil surface and bare 
soil surface is needed for dust-bathing and efficient seed collection. 
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, predator 
escape, and foraging) than those supporting earlier phases, these areas 
contain features essential to 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 such events.
    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 post-flooding 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 important to 
the preservation of the San Bernardino kangaroo rat in channelized 
systems where bank-to-bank flooding can occur are individuals occupying 
the upland areas as they may be the only individuals remaining for 
recolonization of the lower floodplain after flooding has subsided 
(Pavelka 2006).
    Regional persistence of the San Bernardino kangaroo rat depends on 
recolonization of local populations that have been extirpated by 
drought or flood events (Price 2007, p. 2). 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 2.47 ac (1 ha). 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 that should be considered 
when identifying the physical and biological features essential to 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 the habitat associated with alluvial processes is 
suitable for the subspecies 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 is documented in the following areas: those 
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; 
mature stage alluvial sage scrub with greater than 50 percent canopy 
cover; and areas of wildland/urban interface within floodplains or 
terraces that are 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 0.82 ac (0.33 ha) for males and 0.77 ac (0.31 
ha) for females (Behrends et al. 1986, p. 204). 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 (i.e., 
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, we believe we included sufficient areas 
through the delineation of critical habitat in wash and upland areas to 
provide the space needed to maintain the home range dynamics of this 
subspecies.

Food

    As stated in the previous sections, the alluvial sage scrub plant 
community

[[Page 61962]]

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 (i.e., 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, are 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 rats, and heteromyids in general, have 
relatively low reproductive output that can be linked to food 
resources. Rainfall and the availability of food are 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 suitable 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 (Lynx 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 oreganus), and domestic 
cats (Felis catus) (Bolger et al. 1997, p. 560; 67 FR 19812, April 23, 
2002).

Primary Constituent Elements for the San Bernardino Kangaroo Rat

    Pursuant to the Act and its implementing regulations, we are 
required to identify the physical and biological features within the 
geographical area occupied by the San Bernardino kangaroo rat at the 
time of listing that are essential to the conservation of the species 
and which may require special management considerations or protection. 
The physical and biological features are the primary constituent 
elements (PCEs) laid out in the appropriate quantity and spatial 
arrangement essential to the conservation of the species. All areas 
designated as critical habitat for the San Bernardino kangaroo rat are 
within the geographical area occupied by the species at the time of 
listing, are currently occupied, and contain sufficient essential 
features to support at least one life history function.
    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 determined that the PCEs specific to the San Bernardino 
kangaroo rat 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.
    With this final designation of critical habitat, we intend to 
conserve the physical and biological features essential to the 
conservation of the subspecies, through the identification of the 
appropriate quantity and spatial arrangement of the PCEs sufficient to 
support the life history functions of the subspecies. Some units 
contain all of these PCEs and support multiple life processes, while 
some units contain only a portion of these PCEs, those necessary to 
support the subspecies' particular use of that habitat. Because not all 
life history functions require all the PCEs, not all critical habitat 
units will contain all the PCEs.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
within the geographical area occupied at the time of listing contain 
features essential to the conservation of the subspecies that may 
require special management considerations or protection. We also 
considered how revising the current designation of critical habitat 
highlights habitat with essential features in need of special 
management considerations or protection.
    The majority of all remaining suitable habitat, and therefore, 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 critical habitat units except Unit 
4, 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.
    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 critical habitat units. Flood control 
berms, levees, and concrete-lined channels increase severity (i.e., 
velocity and scour) of flood events in lower elevations within the 
floodplain, and cut off upland portions of alluvial sage scrub habitat 
from hydrological processes that maintain suitable San Bernardino 
kangaroo rat conditions

[[Page 61963]]

(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 (e.g., 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 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 (i.e., 
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 five 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 development projects 
may 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 the 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 five critical habitat units 
and within critical habitat Unit 5 occasionally result in the disking 
of patches of suitable or occupied habitat that may be distributed 
throughout upland agricultural areas. Disking 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 extirpation 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 designating critical habitat for the San Bernardino kangaroo 
rat in areas that we have determined were within the geographical area 
occupied at the time of listing, and contain PCEs in the appropriate 
quantity and spatial arrangement essential to the conservation of this 
subspecies. Some lands contain all PCEs and support multiple life 
processes. Some lands contain only a portion of the PCEs necessary to 
support the particular biological value of that habitat to this 
subspecies. As explained in detail below, we are not designating 
critical habitat in areas outside the geographical area occupied by the 
species at the time of listing because we determined that such areas 
are not essential to the conservation of the subspecies.
    We define occupied habitat as: (1) Those areas containing 
occurrence data from the time of listing (1980 to 1998); (2) those 
areas containing occurrence data since the time of listing (1998 to 
present); and (3) areas adjacent to and between occurrence points that 
maintain habitat connectivity between occurrences in one continuous 
patch of suitable habitat. As discussed in the ``Background'' section 
of the proposed rule published in the Federal Register on June 19, 2007 
(72 FR 33808), occurrences discovered since the listing of the 
subspecies in 1998 are within the geographical area occupied at the 
time of listing (i.e., Santa Ana River, Lytle/Cajon Creek, and San 
Jacinto River washes).
    In this designation, we have focused primarily on core populations 
(i.e., areas where the subspecies has been repeatedly detected through 
live trapping) in undisturbed habitat in the Santa Ana River, Lytle/
Cajon Creeks, and the San Jacinto River washes that contain the 
physical and biological features essential to the conservation of the 
San Bernardino kangaroo rat. We believe that protecting the habitat 
supporting these three largest core populations is essential to the 
survival and recovery of the subspecies. Small, isolated areas of 
degraded habitat or areas devoid of fluvial processes are likely only 
to support unsustainable populations that would not contribute to the 
recovery of this subspecies. In defining core population boundaries, we 
included areas demographically disconnected from the three largest 
populations, but which may provide the subspecies with protection 
against stochastic events (e.g., flooding in excess of a 100-year storm 
event that removes flood-plain terrace habitat;

[[Page 61964]]

earthquakes; fires followed by erosion of adjacent slopes that bury 
occupied habitat) that could cause local extirpations in the larger 
units. These areas are occupied by the subspecies and contain likely 
self-sustaining populations, relatively undisturbed alluvial scrub 
habitat with largely unimpeded fluvial dynamics, and, thus, the PCEs in 
the appropriate quantity and spatial arrangement essential to the 
conservation of the subspecies.
    We delineated critical habitat for the San Bernardino kangaroo rat 
using the following criteria: (1) Areas occupied by the subspecies at 
the time of listing, and currently occupied, within the historical 
range of the subspecies; (2) areas retaining fluvial dynamics 
containing one or more of the PCEs for the subspecies; (3) areas 
supporting a core population of the subspecies; and (4) areas 
demographically disconnected from the three largest populations, but 
which may be important for the long-term recovery of the subspecies. 
Utilizing 2005 aerial imagery and occurrence data to determine areas of 
occupancy, we delineated critical habitat on maps to include occupied 
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 with biologists considered to be experts on 
this subspecies and its habitat to confirm the presence of PCEs in the 
areas delineated on the maps. Because of the importance of upland 
habitat as a source of animals to repopulate wash areas following flood 
events, we included upland habitat containing one or more PCEs, 
adjacent to occupied wash habitat in this designation.
    The Service may designate as critical habitat areas outside of the 
geographical area occupied by a species at the time it was listed when 
we can demonstrate that those areas are essential for the conservation 
of the species. Likewise, we can designate as critical habitat areas 
outside the geographical area presently occupied by a species only when 
a designation limited to the species' present range would be inadequate 
to ensure the conservation of the species (50 CFR 424.12(e)). 
Conservation (i.e., recovery) is defined in section 3 of the Act as the 
``use of all methods and procedures which are necessary to bring any 
endangered species or threatened species to the point at which the 
measures provided pursuant to this Act are no longer necessary.'' In 
accordance with section 4(a)(1) of the Act, we determine if any species 
is an endangered or threatened species (or revise its listed status) 
because of any of the five threat factors identified in the Act (i.e., 
(A) present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence). Therefore, 
conservation, or recovery, is achieved when a five factor analysis 
indicates that current and future threats have been minimized to an 
extent that the species is no longer in danger of extinction or likely 
to become endangered in the foreseeable future. Recovery is a dynamic 
process requiring adaptive management of threats and there are many 
paths to accomplishing recovery of a species. We recognize that it is 
unlikely that threats to this subspecies will be removed from all areas 
identified in this rule and that recovery efforts will occur outside 
the boundaries of this final designation; however, we believe that that 
conservation of this subspecies would be achieved if threats to this 
subspecies, as described in the ``Special Management Considerations or 
Protection'' section of this rule, were reduced or removed in the areas 
we identified as meeting the definition of critical habitat. Therefore, 
consistent with the statutory obligations of the Act and our 
implementing regulations we are not designating any unoccupied areas or 
areas outside the geographical area occupied by this subspecies at the 
time it was listed.
    When determining the critical habitat boundaries, we made every 
effort to avoid including developed areas such as lands covered by 
buildings, pavement, and other structures because such lands 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 lands. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final critical habitat are 
excluded by text in this rule and are not designated as critical 
habitat. Therefore, Federal actions involving these textually excluded 
lands would not trigger section 7 consultation with respect to critical 
habitat and the requirement of no adverse modification unless the 
specific actions may affect the subspecies or PCEs in adjacent critical 
habitat.

Final Critical Habitat Designation

    We are designating approximately 7,779 ac (3,148 ha) of land as 
critical habitat for the San Bernardino kangaroo rat in five units. 
Table 2 provides the approximate area determined to meet the definition 
of critical habitat for the San Bernardino kangaroo rat in the 2007 
proposed rule, areas added to the proposed rule in the April 16, 2008 
NOA, areas being excluded from final critical habitat designation under 
section 4(b)(2) of the Act (please see ``Exclusions Under Section 
4(b)(2) of the Act'' section for a detailed discussion), and areas 
being designated as critical habitat.

    Table 2--Critical Habitat Units for the San Bernardino Kangaroo Rat in California; Land Ownership and Evolution of Final Size in Acres (Hectares)
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 2008 NOA
                                                                             2007 Proposed     additions to     Areas excluded
           Critical habitat unit                    Land ownership         critical habitat      proposed        under section    Final critical habitat
                                                                             (72 FR 33808)   critical habitat   4(b)(2) of the
                                                                                               (73 FR 20581)          act
--------------------------------------------------------------------------------------------------------------------------------------------------------
1. Santa Ana River Wash, San Bernardino     BLM \1\......................         559 (226)          184 (74)           00 (00)                743 (301)
 County.
                                            Local \2\....................         267 (108)           00 (00)         267 (108)                  00 (00)
                                            Private......................     2,797 (1,132)         469 (190)         751 (304)            2,515 (1,018)
                                           -------------------------------------------------------------------------------------------------------------
    Subtotal..............................  .............................     3,623 (1,466)         653 (264)       1,018 (412)            3,258 (1,318)
--------------------------------------------------------------------------------------------------------------------------------------------------------
2. Lytle/Cajon Creek Wash, San Bernardino   USFS \3\.....................           89 (36)           00 (00)           00 (00)                  89 (36)
 County.

[[Page 61965]]

 
                                            Private......................     4,597 (1,860)           00 (00)       1,265 (512)            3,332 (1,348)
                                           -------------------------------------------------------------------------------------------------------------
    Subtotal..............................  .............................     4,686 (1,896)           00 (00)       1,265 (512)            3,421 (1,384)
--------------------------------------------------------------------------------------------------------------------------------------------------------
3. San Jacinto River Wash, Riverside        Water District \4\...........         506 (205)           00 (00)       \6\ 39 (16)                506 (205)
 County.
                                            Local Flood \5\..............           94 (38)           00 (00)           94 (38)                  00 (00)
                                            Private......................          169 (68)           00 (00)          169 (68)                  00 (00)
                                           -------------------------------------------------------------------------------------------------------------
    Subtotal..............................  .............................         769 (311)           00 (00)         302 (122)                506 (205)
--------------------------------------------------------------------------------------------------------------------------------------------------------
4. Cable Creek Wash, San Bernardino County  Private......................           00 (00)         483 (195)           00 (00)                483 (195)
                                           -------------------------------------------------------------------------------------------------------------
    Subtotal..............................  .............................           00 (00)         483 (195)           00 (00)                483 (195)
--------------------------------------------------------------------------------------------------------------------------------------------------------
5. Bautista Creek, Riverside County.......  USFS \3\.....................           00 (00)           73 (30)           00 (00)                  73 (30)
                                            USFS Inholding...............           00 (00)           38 (15)           00 (00)                  38 (15)
                                            Local Flood \5\..............           00 (00)             4 (2)             4 (2)                  00 (00)
                                            Private......................           00 (00)         328 (133)         328 (133)                  00 (00)
                                           -------------------------------------------------------------------------------------------------------------
    Subtotal..............................  .............................           00 (00)         443 (179)         332 (134)                 111 (45)
                                           -------------------------------------------------------------------------------------------------------------
        Total.............................  .............................     9,078 (3,674)       1,579 (639)     2,917 (1,180)            7,779 (3,148)
--------------------------------------------------------------------------------------------------------------------------------------------------------
\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
\6\ Please see the ``Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat'' section for a discussion of Eastern Municipal Water
  District lands excluded from critical habitat.

    Below, we present brief descriptions of the units designated as 
critical habitat for the San Bernardino kangaroo rat. For more 
information about the areas excluded from critical habitat, please see 
the ``Exclusions Under Section 4(b)(2) of the Act'' section of this 
final rule.

Unit 1: Santa Ana River Wash

    Unit 1 consists of approximately 3,258 ac (1,318 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, and Highland. 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 Mill Creek is 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 features essential to the 
conservation of the San Bernardino kangaroo rat. Additionally, this 
unit contains the highest densities of San Bernardino kangaroo rats in 
the Santa Ana wash. The physical and biological features 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 751 ac (304 ha) of revised proposed critical habitat 
Unit 1 occurred within the WSPA, a section of the floodplain 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 ACOE to minimize the effects of Seven Oaks 
Dam on the federally endangered plant, 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 identified 
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 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 of our partnership and development of approved management plans, 
we excluded the approximately 751 ac (304 ha) of WSPA lands from the 
final revised critical habitat designation (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section for a detailed discussion).
    In 1994, the BLM designated three parcels in the Santa Ana River, a 
total of approximately 760 ac (308 ha), as an ACEC. One parcel is 
located south of the Seven Oaks borrow 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

[[Page 61966]]

species and vegetation communities in this area, the administration of 
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, and we are not excluding 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 on a proposed exchange of Federal 
and private lands and the development of the Upper Santa Ana River 
Habitat Conservation Plan (USAR HCP, also known as ``Plan B''). The 
goal of the USAR HCP is to consolidate a large block of alluvial fan 
scrub occupied by three federally endangered species (the San 
Bernardino kangaroo rat, Eriastrum densifolium ssp. sanctorum, and 
Dodecahema leptoceras (slender-horned spineflower)) and one federally 
threatened species (the coastal California gnatcatcher (Polioptila 
californica californica)). The area under consideration includes the 
majority of the Santa Ana wash from just downstream of the confluence 
of Mill Creek with the Santa Ana River to Alabama Street. While the 
goal of this effort is to benefit the San Bernardino kangaroo rat 
through the establishment of preserve lands that will be managed for 
this subspecies and other listed species, we are still in the 
development phase of this HCP, and we are not excluding lands within 
the proposed Santa Ana River Wash Conservation Area from the final 
revised critical habitat designation.
    Approximately 267 ac (108 ha) of occupied habitat in the Santa Ana 
River wash is 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 in San Bernardino, California. These areas are managed 
specifically for the San Bernardino kangaroo rat and Eriastrum 
densifolium spp. sanctorum pursuant to the Former Norton Air Force Base 
CMP completed in March 2002. We excluded these 267 ac (109 ha) from the 
final revised critical habitat designation based on benefits provided 
to San Bernardino kangaroo rat habitat through our partnership and the 
approved CMP (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section for a detailed discussion).

Unit 2: Lytle/Cajon Creek Wash

    Unit 2 encompasses approximately 3,421 ac (1,384 ha) in San 
Bernardino County and 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. Unit 2 was occupied at the time of listing, is 
currently occupied, and contains all of the features essential to the 
conservation of the San Bernardino kangaroo rat. This unit includes 
some of the last remaining alluvial fans, floodplain terraces, 
historical 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. This unit also contains the 
highest densities of San Bernardino kangaroo rat in the Lytle/Cajon 
wash. The physical and biological features 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 that were proposed in Unit 2 will be or are protected 
and managed to some extent for the San Bernardino kangaroo rat. The 
Cajon Creek Habitat Conservation Management Area (HCMA) includes 
approximately 1,265 ac (512 ha) to offset approximately 2,270 ac (919 
ha) of sand and gravel mining proposed within and adjacent to Cajon 
Creek. Of the 1,265 ac (512 ha) Cajon Creek HCMA, approximately 567 ac 
(229 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 
698 ac (282 ha) are 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 the HEMP (M. Blane and Associates 1996) and 
associated Memorandum of Understanding and Implementation Agreement for 
the Cajon Creek Habitat Management Area (MOU) (CalMat Company 1996). We 
excluded 1,265 ac (512 ha) of HCMA lands from the final revised 
critical habitat designation based on our partnership and benefits 
provided by the HEMP and MOU (see ``Exclusions Under Section 4(b)(2) of 
the Act'' for a detailed discussion).
    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, FWS-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 (Unit 2) as a conservation area 
for the San Bernardino kangaroo rat. Habitat that provides primary 
foraging, sheltering, and breeding habitat for the San Bernardino 
kangaroo rat within this area will be conserved and managed in 
perpetuity (Service 2003a, p. 45). Forty acres (16 ha) of this area is 
upland island habitat that lies within the floodplain and will receive 
additional management through restoration or enhancement for the 
benefit of the San Bernardino kangaroo rat (Service 2003a, p. 42). A 
long-term management plan will be completed at the end of an initial 
management period allowing for lessons learned during that time to be 
incorporated into the long-term management plan. However, to date, no 
conservation easements or endowments have been secured for the lands 
proposed as conservation areas, nor has the long-term management plan 
been completed, and we are not excluding the 213 ac (86 ha) of proposed 
future conservation lands that will be established as a result of this 
project

[[Page 61967]]

from the final revised critical habitat designation.
    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). Additionally, 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, 
a management plan benefiting the San Bernardino kangaroo rat is not yet 
developed for these lands, and we are not excluding these 38 ac (16 ha) 
from the final revised critical habitat designation.

Unit 3: San Jacinto River Wash

    Unit 3 encompasses approximately 506 ac (205 ha) in Riverside 
County and includes areas along the San Jacinto River in the vicinity 
of San Jacinto, Hemet, and Valle Vista. This unit 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 features 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 large 
extant core populations of the San Bernardino kangaroo rat and is the 
only core population in Riverside County. Historically, the San 
Bernardino kangaroo rat occurred along the San Jacinto River from the 
upper reach of habitat in the river downstream past State Route 79. The 
physical and biological features 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 vehicle activity, and 
urban development.
    Lands within Unit 3 are adjacent to lands of the Soboba Band of 
Luiseno Indians Reservation, which were included in the 2002 final 
critical habitat designation (see 50 CFR 17.95(a); 67 FR 19812, April 
23, 2002). We are not designating these Tribal lands as critical 
habitat for the San Bernardino kangaroo rat in this final revised 
critical habitat designation (see ``Government-to-Government 
Relationship with Tribes'' section for a detailed discussion).
    All private lands proposed as critical habitat in the San Jacinto 
River wash fall within the boundaries of the Western Riverside County 
MSHCP. We excluded 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 our partnership and the 
benefits provided to the San Bernardino kangaroo rat by the Western 
Riverside County MSHCP. We are also excluding 39 ac (16 ha) of land 
owned by the Eastern Municipal Water District related to The Soboba 
Band of Luiseno Indians Settlement Act and implementation of its 
associated settlement agreement. Please see ``Exclusions Under Section 
4(b)(2) of the Act'' section for detailed discussions of these 
exclusions.

Unit 4: Cable Creek Wash

    Unit 4 consists of approximately 483 ac (195 ha) and is located in 
San Bernardino County. This unit encompasses the Cable Creek alluvial 
floodplain from the mouth of Cable Canyon to I-215 where the creek 
becomes channelized. Because Cable Creek is not impeded by a dam or 
debris basin, the fluvial dynamics necessary to maintain the PCEs of 
San Bernardino kangaroo rat habitat remain in this unchannelized 
portion of Cable Creek. This critical habitat unit was occupied at the 
time of listing, is currently occupied, and contains all of the 
features essential to the conservation of the San Bernardino kangaroo 
rat. Additionally, this unit contains a likely self-sustaining 
population of San Bernardino kangaroo rats that may be important for 
the long-term conservation of the subspecies. This unit is 
demographically isolated from the core population of the subspecies in 
the Lytle/Cajon wash (Unit 2). A stochastic event causing dramatic 
population decline or local extirpation in Unit 2 may have little 
effect on Unit 4. In such a case, the population in Unit 4 could serve 
as a source of individuals for repopulating Unit 2. The physical and 
biological features 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.

Unit 5: Bautista Creek

    Unit 5 consists of approximately 111 ac (45 ha) and is located in 
Riverside County. This unit includes occupied habitat from the 
unchannelized reach of Bautista Creek (i.e., from the existing instream 
mining operation to upstream areas where the grade of the creek 
precludes the formation of alluvial terraces or braids). This unit 
represents the southernmost extent of the San Bernardino kangaroo rat's 
current range. The wash system in upper Bautista Creek retains fluvial 
dynamics because it is not impeded by a dam, debris basin, or concrete 
channelization. This critical habitat unit was occupied at the time of 
listing, is currently occupied, and contains all of the features 
essential to the conservation of the San Bernardino kangaroo rat. 
Historically, the subspecies occurred upstream of the Bautista flood 
control basin until the topography of the canyon becomes too steep. 
This unit contains agricultural areas that could be occupied at low 
densities by this subspecies (PCE 3). Additionally, this unit contains 
a likely self-sustaining population of San Bernardino kangaroo rats 
that may be important for the long-term conservation of the subspecies. 
This unit is demographically isolated from the core population of the 
subspecies in the San Jacinto wash (Unit 3) by a concrete-lined 
channel. This channel directs flows from upper Bautista Creek 
downstream to the San Jacinto River. Given the current status of the 
San Bernardino kangaroo rat and ongoing threats to its habitat, it is 
important for the conservation of the San Bernardino kangaroo rat that 
natural fluvial processes in occupied habitat are maintained. A 
stochastic event could cause a dramatic population decline or local 
extirpation in either Units 3 or 5. In such a case, through relocation 
for the purposes of recovery, the population in Unit 5 could serve as a 
source of individuals for repopulating Unit 3, and vice versa. The 
physical and biological features contained within this unit may require 
special management considerations or protection to minimize impacts 
associated with agricultural activities, sand and gravel mining, and 
urban development.
    All private lands proposed as critical habitat in Bautista Creek 
fall within the boundaries of the Western Riverside County MSHCP. We 
excluded private lands under the jurisdiction of permittees to the 
MSHCP and all lands owned and managed by permittees to the MSHCP within 
this area (332 ac (134

[[Page 61968]]

ha)) based on our partnership and 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'' section 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 jeopardize the continued existence of a listed species or 
destroy or adversely modify designated critical habitat. Decisions by 
the Fifth and Ninth Circuit Courts of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(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. Under 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 
to serve its intended conservation role for the species.
    Under section 7(a)(2) of the Act, 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, we document compliance with the requirements of 
section 7(a)(2) through our 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 jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
    (1) Can be implemented in a manner consistent with the intended 
purpose of the action,
    (2) Can be implemented consistent with the scope of the Federal 
agency's legal authority and jurisdiction,
    (3) Are economically and technologically feasible, and
    (4) Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying 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, Federal 
agencies may need to 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.
    Federal activities that may affect the San Bernardino kangaroo rat 
or its designated critical habitat will require consultation under 
section 7(a)(2) of the Act. Activities on State, Tribal, local or 
private lands requiring a Federal permit (such as a permit from the 
U.S. Army Corps of Engineers under section 404 of the Clean Water Act 
(33 U.S.C. 1251 et seq.) or a permit from the Service under section 
10(a)(1)(B) of the Act) or involving some other Federal action (such as 
funding from the Federal Highway Administration, Federal Aviation 
Administration, or the Federal Emergency Management Agency) are 
examples of agency actions that may be subject to the section 7(a)(2) 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on State, Tribal, local or private lands 
that are not federally funded, authorized, or permitted, do not require 
section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

    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 to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for the San Bernardino kangaroo 
rat. Generally, the conservation role of the San Bernardino kangaroo 
rat critical habitat units is to support occurrences of the subspecies 
in the Santa Ana River, Lytle/Cajon Creeks, the San Jacinto River, 
Cable Creek, and Bautista Creek, which in combination with core 
occurrences on private land excluded from critical habitat designation 
under section 4(b)(2) of the Act, comprise the core populations of this 
subspecies.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe, in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    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 (please see ``Special Management Considerations or 
Protection'' section for a more detailed discussion on the impacts of 
these actions to the listed subspecies):
    (1) Actions that would result in loss or fragmentation of suitable 
habitat, such as urban and industrial development, sand and gravel 
mining, off-road vehicle 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 local 
extirpations from stochastic events 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

[[Page 61969]]

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 could lead to increases in human activity, in 
light levels during nighttime foraging, in predation by domestic and 
feral animals associated with residential development, and the invasion 
of exotic plants, or 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 use 
of best management practices to reduce the amount of water entering 
habitat due to sheet flow.
    We consider all of the units designated as critical habitat to be 
within the geographical area occupied by the subspecies 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 occupied by the San Bernardino kangaroo rat that 
may affect the subspecies to ensure that their actions do not 
jeopardize the continued existence of the San Bernardino kangaroo rat.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
and revise critical habitat 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 has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor. In the following sections, we address a number 
of general issues that are relevant to our analysis under section 
4(b)(2) of the Act.

Economic Analysis

    Following the publication of the proposed revised critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft economic 
analysis (DEA; dated February 6, 2008) was made available for public 
review and comment from April 16, 2008, to May 16, 2008 (73 FR 20581), 
and from July 29, 2008, to August 13, 2008 (73 FR 43910). The Service 
also completed an Addendum to the Economic Analysis (dated May 21, 
2008) that addressed the potential economic impacts associated with the 
additional 1,579 ac (639 ha) presented in the April 16, 2008 NOA. The 
Addendum was made available for public review and comment from July 29, 
2008, to August 13, 2008 (73 FR 43910). Substantive comments and 
information received on the DEA and Addendum are summarized above in 
the ``Public Comment'' section and are incorporated into the final 
analysis, as appropriate. Taking any relevant new information into 
consideration, the Service completed a final economic analysis (FEA) 
(dated August 29, 2008) of the designation that updates the DEA by 
removing impacts that were not considered probable or likely to occur, 
and by adding an estimate of the costs associated solely with the 
designations of critical habitat for the San Bernardino kangaroo rat 
(incremental impacts).
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for the San Bernardino kangaroo rat. This information is 
intended to assist the Secretary in making decisions about whether the 
benefits of excluding particular areas from the designation outweigh 
the benefits of including those areas in the designation. The economic 
analysis considers the economic efficiency effects that may result from 
the designation. In the case of habitat conservation, efficiency 
effects generally reflect the ``opportunity costs'' associated with the 
commitment of resources to comply with habitat protection measures 
(such as lost economic opportunities associated with restrictions on 
land use). It also addresses how potential economic impacts are likely 
to be distributed, including an assessment of any local or regional 
impacts of habitat conservation and the potential effects of 
conservation activities on government agencies, private businesses, and 
individuals. The economic analysis measures lost economic efficiency 
associated with residential and commercial development and public 
projects and activities, such as economic impacts on water management 
and transportation projects, Federal lands, small entities, and the 
energy industry. This information can be used by the Secretary to 
assess whether the effects of the designation might unduly burden a 
particular group or economic sector. Finally, the economic analysis 
looks retrospectively at costs that have been incurred since the date 
we listed the San Bernardino kangaroo rat as endangered (September 24, 
1998; 63 FR 51005), and considers those costs that may occur in the 
years following the revised designation of critical habitat, with the 
timeframes for this analysis varying by activity.
    The economic analysis focuses on the direct and indirect costs of 
the rule. However, economic impacts to land use activities can exist in 
the absence of critical habitat. These impacts may result from, for 
example, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The economic analysis examines activities taking place both within 
and adjacent to the designation. It estimates impacts based on 
activities that are ``reasonably foreseeable'' including, but not 
limited to, activities that are currently authorized, permitted, or 
funded, or for which proposed plans are currently available to the 
public. Accordingly, the analysis bases estimates on activities that 
are likely to occur within a 20-year timeframe, from when the proposed 
rule became available to the public (June 19, 2007, 72 FR 33808). The 
20-year timeframe was chosen for the analysis because, as the time 
horizon for an economic analysis is expanded, the assumptions on which 
the projected number of projects and cost impacts associated with those 
projects are based become increasingly speculative.
    The economic analysis is intended to quantify the baseline and 
incremental economic impacts of all potential conservation efforts for 
the San Bernardino kangaroo rat associated with the following 
activities: (1) Water conservation; (2) flood control; (3) urban 
development; (4) sand and gravel mining; (5) agricultural activities; 
and (6) off-road vehicle activities. Baseline impacts include impacts 
associated with overlapping protections from other Federal, State, and 
local laws that aid

[[Page 61970]]

habitat conservation in the study area. In other words, those impacts 
associated with the listing of the species and not associated with 
critical habitat. Incremental impacts are those expected to occur 
solely because of the designation of critical habitat; these would not 
be expected to occur but for the designation of critical habitat. 
Potential incremental economic impacts are estimated over a 23-year 
period from 2008 through 2030 and include an overall cost of $164.4 
million in present value terms using a 7 percent discount rate. No 
incremental economic impacts are expected in areas excluded from 
critical habitat under section 4(b)(2) of the Act. The impacts in areas 
excluded from critical habitat are all considered to be baseline 
impacts.
    For the purposes of the economic analysis and assessing effects on 
development, the revised critical habitat was divided into upland and 
lowland areas. Lowland areas are occupied by the San Bernardino 
kangaroo rat year-round at high densities of individuals. Because this 
is such a narrow endemic subspecies found in very few locations, any 
loss of lowland habitat in which the functional ability of a lowland 
critical habitat unit was adversely modified or destroyed would also 
likely result in jeopardy to this narrow endemic subspecies. Therefore, 
any adverse modification decision for lowland habitat areas would 
likely be coincident to a jeopardy determination for the same action. 
Thus, potential economic impacts from conservation efforts that may be 
necessary to avoid adverse modification of critical habitat within 
lowland areas are considered co-extensive with the impacts of the 
listing of the San Bernardino kangaroo rat and, for the purposes of 
this analysis, are considered to be in the baseline.
    The general conservation role of critical habitat within the upland 
habitat areas is to act as refuge for the San Bernardino kangaroo rat 
during flooding events that inundate the low-lying alluvial fans (i.e., 
the lowlands) that this subspecies usually occupies. Conservation 
efforts not otherwise necessary to avoid jeopardy to the San Bernardino 
kangaroo rat may be required in upland areas to ensure that the 
conservation role and function of the critical habitat unit are 
conserved. Therefore, incremental costs due to the designation of 
critical habitat may be incurred in upland areas as it is reasonable to 
expect that the Service may recommend avoidance and minimization 
efforts in upland areas designated as critical habitat (up to and 
including complete avoidance) specifically to avoid the destruction or 
adverse modification of critical habitat. Thus, impacts of conservation 
efforts that may result in reduced or no development in the upland 
areas are considered incremental impacts of critical habitat 
designation.
    The vast majority of incremental impacts attributed to critical 
habitat designation are due to potential constraints on development 
within upland areas. The projected number of housing units in upland 
areas of critical habitat is 791 according to estimates using the 
Southern California Association of Governments forecasts. Assuming the 
potential constraints on development in the upland areas result in 
complete avoidance of these areas, total incremental impacts are 
projected to be approximately $44.4 million present value at a 7 
percent discount rate over a 23-year period. In addition to the 
Southern California Association of Government forecasts, we received 
detailed projected housing information from the Lytle Creek Development 
Co. for certain upland areas in Unit 2. The Lytle Creek Development Co. 
projects an additional 3,962 housing units in those areas. Again 
assuming complete avoidance of upland areas, total additional 
incremental impacts are projected to be approximately $120 million 
present value at a 7 percent discount rate over a 23-year period. A 
very small portion of incremental effects are attributed to water 
conservation activities in upland areas, approximately $140 million 
annualized at a 7 percent discount rate.
    In addition to projecting the incremental impacts expected to occur 
solely because of the designation of critical habitat, the economic 
analysis considers the potential economic effects of actions relating 
to the conservation of the San Bernardino kangaroo rat, including costs 
associated with sections 4, 7, 9, and 10 of the Act. It further 
considers the economic effects of protective measures taken as a result 
of other Federal, State, and local laws that aid habitat conservation 
for the San Bernardino kangaroo rat in areas containing features 
essential to the conservation of the subspecies. The FEA estimates that 
the potential economic effects of actions relating to the conservation 
of this subspecies, including costs associated with sections 4, 7, and 
10 of the Act (baseline costs, not attributable to critical habitat), 
will be $202.7 million present value at a 7 percent discount rate over 
the next 23 years.
    After consideration of the impacts under section 4(b)(2) of the 
Act, we have not excluded any areas from the final critical habitat 
designation based on the identified economic impacts. The final 
economic analysis is available at http://www.regulations.gov or upon 
request from the Carlsbad Fish and Wildlife Office (see ADDRESSES 
section).

Benefits of Designating Critical Habitat

    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands within the geographical 
area occupied by the species at the time of listing on which are found 
the physical or biological features essential to the conservation of 
the species that may require special management considerations or 
protection, and those areas outside the geographical area occupied by 
the species at the time of listing that are essential for the 
conservation of the species. In identifying those lands, the Service 
must consider the recovery needs of the species, such that, on the 
basis of the best scientific and commercial data available at the time 
of designation, the habitat that is identified, if managed or 
protected, could provide for the survival and recovery of the species.
    The identification of areas that contain features essential to the 
conservation of the species that can, if managed or protected, 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 the physical and biological features essential 
to the conservation of the species within the geographical area 
occupied by the species at the time of listing, as well as to determine 
other areas essential for the conservation of the species. The 
designation process includes peer review and public comment on the 
identified physical and biological features and areas. This process is 
valuable to land owners and managers in developing conservation 
management plans for identified areas, as well as any other occupied 
habitat or suitable habitat that may not be included in the areas the 
Service identifies as meeting the definition of critical habitat.
    The consultation provisions under section 7(a)(2) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with the Service on actions that 
may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. Federal agencies must also consult with us 
on actions that may affect a listed species and refrain from 
undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects to critical habitat 
is a separate and

[[Page 61971]]

different analysis from that of the effects to the species. Therefore, 
the difference in outcomes of these two analyses represents the 
regulatory benefit of critical habitat. For some species, and in some 
locations, the outcome of these analyses will be similar, because 
effects to habitat will often also result in effects to the species. 
However, the regulatory standard is different, as the jeopardy analysis 
investigates the action's impact to survival and recovery of the 
species, while the adverse modification analysis investigates the 
action's effects to the designated habitat's contribution to 
conservation. This will, in many instances, lead to different results 
and different regulatory requirements. Thus, critical habitat 
designations may provide greater benefits to the recovery of a species 
than would listing alone.
    There are two limitations to the regulatory effect of critical 
habitat. First, a consultation is only required where there is a 
Federal nexus (an action authorized, funded, or carried out by any 
Federal agency)--if there is no Federal nexus, the critical habitat 
designation of private lands itself does not restrict actions that 
destroy or adversely modify critical habitat. Second, the designation 
only limits destruction or adverse modification. By its nature, the 
prohibition on adverse modification is designed to ensure that the 
conservation role and function of those areas that contain the physical 
and biological features essential to the conservation of the species or 
of unoccupied areas that are essential for the conservation of the 
species are not appreciably reduced. Critical habitat designation 
alone, however, does not require private property owners to undertake 
specific steps toward recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when the 
Service concurs in writing that the proposed Federal action is not 
likely to adversely affect critical habitat. However, if we determine 
through informal consultation that adverse impacts are likely to occur, 
then formal consultation is initiated. Formal consultation concludes 
with a biological opinion issued by the Service on whether the proposed 
Federal action is likely to result in destruction or adverse 
modification of critical habitat.
    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 the primary constituent elements, but it would not suggest the 
implementation of any reasonable and prudent alternative. We suggest 
reasonable and prudent alternatives to the proposed Federal action only 
when our biological opinion results in an adverse modification 
conclusion.
    As stated above, 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 is 
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 necessarily to manage 
critical habitat or institute recovery actions on critical habitat. 
Conversely, voluntary conservation efforts implemented through 
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; therefore, implementing recovery actions. We 
believe that in many instances the regulatory benefit of critical 
habitat is minimal when compared to the conservation benefit that can 
be achieved through implementing Habitat Conservation Plans (HCPs) 
under section 10 of the Act or other habitat management plans. The 
conservation achieved through such plans is typically greater than what 
we achieve through multiple site-by-site, project-by-project, section 
7(a)(2) consultations involving consideration of critical habitat. 
Management plans commit resources to implement long-term management and 
protection to particular habitat for at least one and possibly other 
listed or sensitive species. Section 7(a)(2) consultations only commit 
Federal agencies to preventing adverse modification of critical habitat 
caused by the particular project, and they are not committed to provide 
conservation or long-term benefits to areas not affected by the 
proposed action. Thus, implementation of an HCP or management plan that 
incorporates enhancement or recovery as the management standard may 
often provide as much or more benefit than a consultation for critical 
habitat designation.
    Another benefit of including lands in critical habitat is that 
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, critical habitat 
designation always has educational benefits; however, in some cases, 
they may be redundant with other educational effects. For example, HCPs 
have significant public input and may largely duplicate the educational 
benefits of a critical habitat designation. Including lands in critical 
habitat also would inform State agencies and local governments about 
areas that could be conserved under State laws or local ordinances.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without cooperation of non-Federal landowners. More than 60 percent of 
the United States is privately owned (National Wilderness Institute 
1995, p.2), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002, 
p. 720; Stein et al. 1995, p. 400) 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. 
Building partnerships and promoting voluntary cooperation of landowners 
are essential to understanding the status of species on non-Federal 
lands, and are necessary to implement recovery actions such as 
reintroducing listed species, habitat restoration, and habitat 
protection.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. We promote 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 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

[[Page 61972]]

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, pp. 5-6; 
Bean 2002, pp. 2-3; Conner and Mathews 2002, pp. 1-2; James 2002, pp. 
270-271; Koch 2002, pp. 2-3; Brook et al. 2003, pp. 1639-1643). 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. This perception 
results in anti-conservation incentives because maintaining habitats 
that harbor endangered species represents a risk to future economic 
opportunities (Main et al. 1999, pp. 1264-1265; Brook et al. 2003, pp. 
1644-1648).
    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, p. 
1263; Bean 2002, p. 2; Brook et al. 2003, pp. 1644-1648). 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, pp. 3-4). We believe that the judicious exclusion of 
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(a)(2) 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.

Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans

    The benefits of excluding lands with HCPs or other approved long-
term management plans from critical habitat designation include 
relieving landowners, communities, and counties of any additional 
regulatory burden that might be imposed as a result of the 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 also provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine our efforts and partnerships as well. 
Our experience in implementing the Act has found that designation of 
critical habitat within the boundaries of management plans that provide 
conservation measures for a species is a disincentive to many entities 
that are either currently developing such plans, or contemplating doing 
so 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.
    A related benefit of excluding lands covered by approved HCPs and 
management plans that cover listed species from critical habitat 
designation is the unhindered, continued ability it gives us 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. Designating lands within 
approved management plan areas as critical habitat 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 excluding these lands, we 
preserve our current partnerships and encourage additional conservation 
actions in the future.
    Both HCPs and Natural Communities Conservation Plan (NCCP)-HCP 
applications require consultation, which would review the effects of 
all HCP-covered activities that might adversely impact the species 
under a jeopardy standard, including possibly significant habitat 
modification, even without the critical habitat designation. 
Additionally, all other Federal actions that may affect the listed 
species still require consultation under section 7(a)(2) of the Act, 
and we review these actions for possibly significant habitat 
modification in accordance with the jeopardy standard under Section 
7(a)(2).
    The information provided in the previous sections applies to all 
the following discussions of benefits of inclusion or exclusion of 
critical habitat.
Application of Section 4(b)(2)--Other Relevant Impacts--Conservation 
Partnerships
    Section 4(b)(2) of the Act allows the Secretary to exclude areas 
from critical habitat for other relevant impacts 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. 
As discussed above in the ``Conservation Partnerships on Non-Federal 
Lands'' section, we believe that designation can negatively impact the 
working relationships and conservation partnerships we have formed with 
private landowners. The Service recognizes that 80 percent of 
endangered or threatened species occur either partially or solely on 
private lands (Crouse et al. 2002) and we will only achieve recovery of 
federally listed species with the cooperation of private landowners.
    In making the following exclusions, we evaluated the benefits of 
designating these non-Federal lands that may not have a Federal nexus 
for consultation while considering if our existing partnerships have, 
or will, result in greater conservation benefits to the San Bernardino 
kangaroo rat and the physical or biological features essential to its 
conservation than a critical habitat designation. As discussed in the 
``Benefits of Designating Critical Habitat'' section above, 
conservation partnerships that result in implementation of an HCP or 
other management plan that considers enhancement or recovery as the 
management standard often provide as much or more benefit than 
consultation for critical habitat designation (the primary benefit of a 
designation).
    In considering the benefits of including lands in a designation 
that are covered by a current HCP or other management plan, we evaluate 
a number of factors to help us determine if the plan provides 
equivalent or greater conservation benefit than would

[[Page 61973]]

likely result from consultation on a designation:
    (1) Whether the plan is complete and provides protection from 
destruction or adverse modification;
    (2) Whether there is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) Whether the plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    We balance the benefits of inclusion against the benefits of 
exclusion by considering the benefits of preserving partnerships and 
encouraging development of additional HCPs and other conservation plans 
in the future.
Woolly-Star Preserve Area (WSPA) Management Plans
    Approximately 751 ac (304 ha) of the 765-ac (310 ha) WSPA is within 
proposed 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 ACOE 
as part of the conservation measures developed through a section 7 
consultation to address impacts to the federally endangered Eriastrum 
densifolium ssp. sanctorum resulting from construction of the Seven 
Oaks Dam (Service File: 1-6-88-F-6, June 22, 1989). The San Bernardino 
County Flood Control District, Orange County Flood Control Division, 
and Riverside County Flood Control and Water Conservation District are 
responsible for the operation of the Seven Oaks Dam.
    A management plan for Eriastrum densifolium ssp. sanctorum was 
prepared in coordination with the Service, California Department of 
Fish and Game, ACOE, and the flood control districts (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, p. 2). 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, which are currently being implemented, that benefit 
habitat for E. d. ssp. sanctorum. Implementation of the plan is carried 
out by the flood control districts identified above. 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-road 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 flood 
control districts of San Bernardino, Riverside, and Orange counties 
(Lovell 2007, p. 1). Since the inception of the 1993 Management Plan 
for the Santa Ana River Woolly-Star, ongoing biological studies and 
management tasks have been conducted on the WSPA to increase 
understanding of E. d. ssp. sanctorum habitat (alluvial scrub) and 
habitat renewal and to increase the quality of alluvial habitat. 
Studies and management tasks involve population and habitat monitoring, 
along with habitat renewal and population expansion of E. d. ssp. 
sanctorum (PSOMAS and CSUF 2004, p.1). These ongoing efforts help to 
ensure not only the conservation of E. d. ssp. sanctorum, but alluvial 
habitat in general and the native plants and animals that depend on 
this habitat, including the San Bernardino kangaroo rat.
    The ACOE, San Bernardino County Flood Control District, Orange 
County Flood Control Division, and Riverside County Flood Control and 
Water Conservation District have committed to the development and 
implementation of a Multiple Species Habitat Management Plan (MSHMP) 
for the WSPA that will update the 1993 plan and include habitat 
management specifically for the San Bernardino kangaroo rat and the 
federally endangered Dodecahema leptoceras as part of the conservation 
measures proposed during consultation regarding the effects of 
operation and maintenance of the dam on Eriastrum densifolium ssp. 
sanctorum, D. leptoceras and the San Bernardino kangaroo rat. The goals 
of the draft MSHMP specific to the San Bernardino kangaroo rat include: 
(1) Maintenance and/or expansion of the current subspecies distribution 
within the WSPA; (2) optimization of habitat conditions; and (3) 
maintenance and/or enhancement of populations of the San Bernardino 
kangaroo rat within the WSPA.
    General objectives of the MSHMP 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 
subspecies biology and habitat; (3) measure San Bernardino kangaroo rat 
response to experimental habitat treatments and potential management 
measures; (4) establish priority of areas for implementation of habitat 
management to maintain or enhance suitability for the subspecies; 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 and 
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. 
The 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, San Bernardino County Flood Control District, Orange County 
Flood Control Division, and Riverside County Flood Control and Water 
Conservation District are 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 Geographic Information 
System 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 
MSHMP currently in development. The Service is working with the ACOE 
and their biological consultants on baseline subspecies surveys and 
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.

[[Page 61974]]

    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 have provided and 
will continue to 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.
    In the 1998 final listing rule, we discussed that the area set 
aside by the ACOE as mitigation (i.e., the WSPA) for the then proposed 
Seven Oaks Dam project was not adequate to conserve this subspecies. We 
stated that the conserved area only represents approximately 4 percent 
of the alluvial scrub in the area. We also stated in the listing rule 
that the majority of the conserved habitat will no longer receive the 
hydrological scouring considered necessary to maintain alluvial scrub 
habitat. Although this may be true of the Santa Ana River, Mill Creek 
is not impeded by dams and is the primary source of sediment and 
alluvial processes to this area. The primary objective of the existing 
WSPA and the additional conservation measures outlined in the 
Biological Assessment for the Seven Oaks Dam, Santa Ana River Mainstem 
Project (August 2000) is to compensate for potential changes in 
floodplain characteristics and listed species' (including the San 
Bernardino kangaroo rat) habitat brought about by construction and 
operation of Seven Oaks Dam (Service 2002b, p. 7). These WSPA lands are 
currently designated as critical habitat. For these reasons, we 
determined that the WSPA is important to the subspecies and the 
associated management plans adequately conserve habitat for the San 
Bernardino kangaroo rat. Based on the reasoning provided below, we 
excluded from Unit 1 the approximately 751 ac (304 ha) of non-Federal 
lands within the WSPA Management Plans area from the final revised 
critical habitat designation under section 4(b)(2) of the Act.

Benefits of Inclusion--Woolly-Star Preserve Area (WSPA) Management 
Plans

    The inclusion of approximately 751 ac (304 ha) of WSPA lands in the 
revised critical habitat designation could be beneficial because it 
identifies lands to be managed for the conservation of the San 
Bernardino kangaroo rat. The process of proposing and finalizing the 
revised critical habitat rule provided the Service with the opportunity 
to evaluate and refine the features or PCEs essential to the 
conservation of the subspecies within the geographical area occupied by 
the San Bernardino kangaroo rat at the time of listing, as well as to 
evaluate whether there are other areas essential for the conservation 
of the subspecies. The designation process included peer review and 
public comment on the identified features and areas. This process is 
valuable to land owners and managers in developing conservation 
management plans for identified areas, 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, identification 
of important habitat and habitat features for the San Bernardino 
kangaroo rat within the area covered by the WSPA Management Plans and 
efforts to conserve the subspecies and its habitat were initiated prior 
to the proposed revised critical habitat rule and will continue into 
the future.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts currently being 
planned and implemented in the WSPA. The process of developing the WSPA 
Management Plans has involved several partners including (but not 
limited to) flood control districts of San Bernardino, Riverside, and 
Orange counties, California Department of Fish and Game, ACOE, and the 
Service.
    The educational benefits of critical habitat designation derived 
through informing WSPA partners and other members of the public of 
areas important for the long-term conservation of this subspecies have 
already been and continue to be achieved through: (1) Development of 
the WSPA Management Plans; (2) the original designation process in 
2002; and (3) publication of the proposed revisions to critical habitat 
in 2008, notices of public comment periods, and the public hearings.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed above, Federal agencies must consult with us on actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. All of the approximately 751 ac (304 ha) of 
WSPA lands in Unit 1 that are being excluded are on private property, 
with the potential Federal nexus for the San Bernardino kangaroo rat as 
a result of actions by the ACOE associated with the Santa Ana River in 
the area. Therefore, including this area would provide some regulatory 
benefits under section 7(a) of the Act.
    However, the WSPA Management Plans address conservation issues from 
a coordinated, integrated perspective rather than a piecemeal project-
by-project approach that could result in this area absent these plans, 
and the plans will achieve more San Bernardino kangaroo rat 
conservation than would be achieved through such multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. Furthermore, the WSPA Management Plans include 
proactive monitoring and management of conserved lands (as previously 
described), thereby reducing known threats to the San Bernardino 
kangaroo rat and its habitat. These measures provide assurance that the 
features essential to the conservation of the San Bernardino kangaroo 
rat within the WSPA will be permanently protected and managed to 
conserve this subspecies. In light of the conserved status of the lands 
and the potential piecemeal project-by-project approach for future 
section 7 consultations on these lands, we conclude that the potential 
regulatory benefit of designating this area as critical habitat is 
minimal. The WSPA Management Plans 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.

Benefits of Exclusion--Woolly-Star Preserve Area (WSPA) Management 
Plans

    Multi-jurisdiction management plans (such as the 1993 WSPA 
Management Plan and the draft MSHMP that is being developed) foster an 
ecosystem-based approach for habitat conservation planning purposes. 
Once such an ecosystem-based management plan is developed (similar to 
the HCP conservation planning process), conservation issues can be 
addressed through a coordinated approach. Coordinating landscape-scale 
conservation with the flood control districts and the ACOE will assist 
in the preservation of interconnected linkage areas and populations 
that support recovery of the subspecies. We believe that the benefits 
of excluding lands under the scenario described above are: (1) 
Retaining and fostering the existing partnership and working 
relationship with all stakeholders; and (2) encouraging future regional 
habitat management plans or HCP development or development of other 
species/habitat

[[Page 61975]]

conservation plans. Additionally, exclusion of the existing WSPA (which 
is being incorporated into the draft MSHMP) demonstrates our good faith 
effort to work productively with non-Federal entities, which should 
encourage initiation and completion of other multi-jurisdiction 
management plans. Designation of lands covered by the WSPA Management 
Plan may discourage other landowners or flood control districts from 
seeking or completing similar conservation efforts.
    We developed a working relationship with the San Bernardino County 
Flood Control District, Orange County Flood Control Division, and 
Riverside County Flood Control and Water Conservation District through 
the development of the 1993 WSPA Management Plan and the draft MSHMP 
that is being developed, which incorporates appropriate protections and 
management for the San Bernardino kangaroo rat, its habitat, and the 
features essential to the conservation of this subspecies. By excluding 
751 ac (304 ha) of lands in Unit 1 from designation, we are eliminating 
an essentially redundant layer of regulatory review for projects 
covered by the WSPA Management Plans, enhancing our working 
relationship with the flood control districts, and encouraging new 
partnerships with other water districts, landowners, and jurisdictions. 
We believe these partnerships are critical for the conservation of the 
San Bernardino kangaroo rat.

The Benefits of Exclusion Outweigh the Benefits of Inclusion--Woolly-
Star Preserve Area (WSPA) Management Plans

    We reviewed and evaluated the proposed designation of essential 
habitat in the WSPA and determined that the benefits of excluding 
critical habitat on 751 ac (304 ha) of land in the WSPA outweigh the 
benefits of designating these lands as critical habitat. This area is 
protected by a conservation easement jointly held by the flood control 
districts of San Bernardino, Riverside, and Orange counties. Because 
these lands are part of an established conservation easement, they are 
protected and include permanent management that is funded by an 
endowment. These measures provide assurance that the features essential 
to the conservation of the San Bernardino kangaroo rat at the WSPA will 
be permanently protected and managed to conserve this subspecies.
    As discussed in the ``Benefits of Exclusion'' section above, we 
developed a close working relationship with the participating flood 
control districts responsible for the WSPA Management Plans through the 
development of those plans, which incorporate appropriate protections 
and management of this subspecies' essential physical and biological 
features. Those protections are consistent with the mandates under 
section 7 of the Act to avoid destruction or adverse modification of 
critical habitat and go beyond that prohibition by including active 
management and protection of essential habitat areas. Designation of 
critical habitat alone does not achieve recovery or require management 
of those lands identified in the critical habitat rule. We believe that 
the recovery benefits of excluding the WSPA lands and implementing the 
WSPA Management Plans outweigh the recovery benefits of retaining these 
lands as critical habitat. Furthermore, the benefits to recovery of 
inclusion primarily have already been met through the identification of 
those areas most important to the subspecies. By excluding these lands 
from designation, we are eliminating a largely redundant layer of 
regulatory review for a limited set of projects on non-Federal lands 
that are addressed by the management plans, and we are helping to 
preserve our ongoing partnership with the WSPA Management Plan 
participants and encourage new partnerships with other landowners and 
jurisdictions. The minimal educational and potential regulatory 
benefits of including the WSPA lands in critical habitat are small when 
compared to the impact such a designation could have on our current and 
future partnerships. These partnerships are integral to achieving long-
term conservation of the San Bernardino kangaroo rat. Designating 
critical habitat on non-Federal lands within areas covered by the WSPA 
Management Plans could have a detrimental effect to our partnership 
with the plan participants and could be a significant disincentive to 
the establishment of future partnerships and management plans with 
other partners.
    We reviewed and evaluated the exclusion of the approximately 751 ac 
(304 ha) of non-Federal lands in Unit 1 covered by the WSPA Management 
Plans from the final revised critical habitat designation for the San 
Bernardino kangaroo rat and determined that the benefits of excluding 
these lands outweigh the benefits of including them. As discussed 
above, the WSPA Management Plans will provide for significant 
preservation and management of the physical and biological features 
essential to the conservation of the San Bernardino kangaroo rat and 
will help reach the recovery goals for this subspecies.

Exclusion Will Not Result in Extinction of the Subspecies--Woolly-Star 
Preserve Area (WSPA) Management Plans

    We determined that the exclusion of the non-Federal lands within 
the area covered by the WSPA Management Plans from the final revised 
designation of critical habitat for the San Bernardino kangaroo rat 
will not result in the extinction of the subspecies. The WSPA 
Management Plans provide protection and management in perpetuity of 
lands within Unit 1, including the physical and biological features 
essential to the conservation of the San Bernardino kangaroo rat. 
Additionally, the jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
provide assurances that the subspecies will not go extinct as a result 
of this exclusion.
Former Norton Air Force Base Conservation Management Plan (CMP)
    The Norton Air Force Base in Unit 1 was formally transferred to 
private ownership in 2003. Prior to closure, the U.S. Air Force 
completed installation remediation that included the closure of an area 
known as ``Landfill 2.'' In accordance with conservation 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 CMP, completed in 2002) for 
approximately 267 ac (108 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) comprise 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 Eriastrum 
densifolium 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 floodplain 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 and the remainder of the 
CMA lands and the OSMA are owned by the San Bernardino International 
Airport Authority (SBIA

[[Page 61976]]

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, p. 5-11). The 
CMAs are adjacent to the approximately 214-acre (87-hectare) OSMA that 
surrounds the existing runway of the SBIA.
    The OSMA is an aircraft over-run area that is managed in accordance 
with Federal Aviation Administration (FAA) guidelines for such lands. 
However, the SBIA Authority manages the OSMA in such as a way as to 
minimize adverse impacts to the San Bernardino kangaroo rat as 
described in the CMP and our biological opinion issued for the base 
closure (FWS-SB-1723.10, August 5, 2003). The 214-acre (87-hectare) 
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 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 disking or other 
ground disturbance is allowed within the OSMA area and implementation 
of the prescribed mowing regime 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 
Authority and Inland Valley Development Agency 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 at 
the Carlsbad Fish and Wildlife Office). The SBIA Authority routinely 
removes exotic or weedy plant species within the CMAs, controls coyote 
access to fenced portions of CMA-1 and the OSMA, which reduces 
predation on the San Bernardino kangaroo rat in these areas, removes 
all dumped trash as soon as possible in accordance with the CMP and FAA 
guidelines, and promptly addresses any trespass issues as needed (e.g., 
fence and sign repairs). 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 the following primary threats to the San Bernardino kangaroo 
rat: habitat loss, destruction, degradation, and fragmentation due to 
sand and gravel mining operations; flood control projects; and urban 
development. As described above, the Former Norton Air Force Base CMP 
provides enhancement of the habitat by 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. Based on the reasoning provided below, we excluded from 
Unit 1 the approximately 267 ac (108 ha) of non-Federal lands within 
the Former Norton Air Force Base CMP area from the final revised 
critical habitat designation under section 4(b)(2) of the Act.

Benefits of Inclusion--Former Norton Air Force Base Conservation 
Management Plan (CMP)

    The inclusion of approximately 267 ac (108 ha) of non-Federal lands 
within CMA-1 and CMA-2 (of the Former Norton Air Force Base) in the 
revised critical habitat designation could be beneficial because it 
identifies lands to be managed for the conservation of the San 
Bernardino kangaroo rat. The process of proposing and finalizing the 
revised critical habitat rule provided the Service with the opportunity 
to evaluate and refine the features or PCEs essential to the 
conservation of the subspecies within the geographical area occupied by 
the San Bernardino kangaroo rat at the time of listing, as well as to 
evaluate whether there are other areas essential for the conservation 
of the subspecies. The designation process included peer review and 
public comment on the identified features and areas. This process is 
valuable to land owners and managers in developing conservation 
management plans for identified areas, as well as any other occupied 
habitat or suitable habitat that may not have been included in the 
Service's determination of essential habitat.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts currently being 
implemented in the approximately 267 ac (108 ha) of lands within CMA-1 
and CMA-2. The process of developing the CMP has involved several 
partners including (but not limited to) the U.S. Air Force, SBIA 
Authority, Inland Valley Development Agency, and the Service.
    The educational benefits of critical habitat designation derived 
through informing our partners and other members of the public of areas 
important for the long-term conservation of the San Bernardino kangaroo 
rat have already been and continue to be achieved through: (1) 
Development and implementation of the CMP; (2) the original designation 
process in 2002; and (3) publication of the proposed revisions to 
critical habitat in 2008, notices of public comment periods, and the 
public hearings.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed above, Federal agencies must consult with us on actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. All of the approximately 267 ac (108 ha) of 
CMA-1 and CMA-2 lands in Unit 1 that are being excluded are on private 
property, with the potential Federal nexus for the San Bernardino 
kangaroo rat as a result of actions by the ACOE associated with Santa 
Ana River in the area or actions by the Federal Aviation 
Administration. Therefore, including this area would provide some 
regulatory benefits under section 7(a) of the Act.
    However, the Former Norton Air Force Base CMP addresses 
conservation issues from a coordinated, integrated perspective rather 
than a piecemeal project-by-project approach that could result in this 
area absent this plan, and will achieve more San Bernardino kangaroo 
rat conservation than would be achieved through such multiple site-by-
site, project-by-project, section 7 consultations involving 
consideration of critical habitat. The permanent conservation of these 
lands (i.e., conservation easement) is currently in progress. 
Furthermore, the CMP includes proactive monitoring and management of 
conserved lands (as

[[Page 61977]]

previously described), thereby reducing known threats to the San 
Bernardino kangaroo rat and its habitat. These measures provide 
assurance that the features essential to the conservation of the San 
Bernardino kangaroo rat within the CMAs will be protected and managed 
to conserve this subspecies. In light of the progress made to establish 
conservation easements on these lands and the potential piecemeal 
project-by-project approach for future section 7 consultations that may 
occur on these lands, we conclude that the potential regulatory benefit 
of designating this area as critical habitat is minimal. The CMP 
provides 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.

Benefits of Exclusion--Former Norton Air Force Base Conservation 
Management Plan (CMP)

    The exclusion of the Former Norton Air Force Base CMP lands from 
critical habitat will help preserve and foster the partnerships that we 
developed with the Inland Valley Development Agency and SBIA Authority, 
and aid in encouraging other landowners to participate in conservation 
planning. Excluding the existing CMP lands demonstrates our good faith 
effort to work productively with non-Federal entities, which should 
encourage initiation and completion of conservation plans. As discussed 
above, many landowners and local jurisdictions perceive critical 
habitat being designated on lands covered by existing conservation 
plans as an unfair and unnecessary regulatory burden given the expense 
and time involved in developing and implementing conservation plans 
such as the CMP. The exclusion of this area signals to other private 
landowners that if they take steps to put their lands into 
conservation, they may avoid an additional layer of regulation, which, 
as we described above in the ``Conservation Partnerships on Non-Federal 
Lands'' section, sometimes acts as a disincentive for private 
landowners. Therefore, designation of lands covered by the CMP 
participants may discourage other landowners from seeking or completing 
similar conservation efforts. We believe that fostering these types of 
partnerships with non-Federal landowners are critical for the 
conservation of the San Bernardino kangaroo rat.

The Benefits of Exclusion Outweigh the Benefits of Inclusion--Former 
Norton Air Force Base Conservation Management Plan (CMP)

    As discussed in the ``Benefits of Inclusion'' section, we believe 
that the regulatory benefit of designating critical habitat on private 
lands covered by the Former Norton Air Force Base CMP would be low. The 
CMP addresses conservation issues from a coordinated, integrated 
perspective rather than a piecemeal project-by-project approach and 
will achieve more San Bernardino kangaroo rat conservation than would 
be achieved through multiple site-by-site, project-by-project, section 
7 consultations involving consideration of critical habitat. 
Furthermore, the CMP provides for the proactive monitoring and 
management of conserved lands (as previously described), reducing known 
threats to the San Bernardino kangaroo rat and its habitat.
    Conservation and management of San Bernardino kangaroo rat habitat 
is essential to the survival and recovery of this subspecies. Such 
conservation needs are typically not addressed through the application 
of the statutory prohibition on destruction or adverse modification of 
critical habitat. The CMP provides 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. Furthermore, educational benefits that may be derived from a 
critical habitat designation are minimal and largely redundant to the 
educational benefits achieved through significant State and local 
government input during the development of this management plan.
    We developed a close partnership with the CMP participants through 
the development of this management plan that incorporates appropriate 
protections and management of this subspecies' essential physical and 
biological features. Those protections are consistent with the mandates 
under section 7 of the Act to avoid destruction or adverse modification 
of critical habitat and go beyond that prohibition by including active 
management and protection of essential habitat areas. Designation of 
critical habitat alone does not achieve recovery or require management 
of those lands identified in the critical habitat rule. We believe the 
recovery benefits of excluding the former Norton Air Force Base 
conservation lands and implementing the CMP outweigh the recovery 
benefits of retaining these lands as critical habitat. Furthermore, the 
benefits to recovery of inclusion primarily have already been met 
through the identification of those areas most important to the 
subspecies. The minimal educational and potential regulatory benefits 
of including the Former Norton Air Force Base lands in critical habitat 
are small when compared to the impact such a designation could have on 
our current and future partnerships. By excluding these lands from 
designation, we are eliminating a largely redundant layer of regulatory 
review for a limited set of projects on non-Federal lands that are 
addressed by the management plan, and we are helping to preserve our 
ongoing partnership with the CMP participants and to encourage new 
partnerships with other landowners and jurisdictions. These 
partnerships are critical for the conservation of the San Bernardino 
kangaroo rat. Designating critical habitat on non-Federal lands within 
areas covered by the CMP area could have a detrimental effect to our 
partnership with the plan participants and could be a significant 
disincentive to the establishment of future partnerships and management 
plans with other partners.
    We reviewed and evaluated the exclusion of approximately 267 ac 
(108 ha) of non-Federal lands in Unit 1 from the designation of final 
revised critical habitat for the San Bernardino kangaroo rat and 
determined that the benefits of excluding these lands outweigh the 
benefits of including them. As discussed above, the CMP will provide 
for significant preservation and management of the physical and 
biological features essential to the conservation of the San Bernardino 
kangaroo rat and will help reach the recovery goals for this 
subspecies.

Exclusion Will Not Result in Extinction of the Subspecies--Former 
Norton Air Force Base Conservation Management Plan (CMP)

    We determined that the exclusion of the non-Federal lands within 
the area covered by the CMP from the final revised designation of 
critical habitat for the San Bernardino kangaroo rat will not result in 
the extinction of the subspecies. The CMP provides protection and 
management, in perpetuity of lands within Unit 1, including the 
physical and biological features essential to the conservation of the 
San Bernardino kangaroo rat. Additionally, the jeopardy standard of 
section 7 of the Act and routine implementation of conservation 
measures through the section 7 process provide assurances that the 
subspecies will not go extinct as a result of this exclusion.

[[Page 61978]]

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

    The Cajon Creek HCMA, managed by Vulcan Materials Co. (formerly 
CalMat Co.), Western Division, was created in 1996 to offset 
approximately 2,270 ac (919 ha) of sand and gravel mining proposed 
within and adjacent to Cajon Creek. According to the HEMP for the HCMA 
and the associated Memorandum of Understanding and Implementation 
Agreement for the Cajon Creek Habitat Management Area (MOU), the HCMA 
includes approximately 1,378 ac (558 ha) of lands in Unit 2, which are 
managed to protect or restore alluvial scrub habitat within the 100-
year floodplain 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). Recent surveys of the HCMA conducted by Vulcan Materials 
Co. have established that the original survey data was inaccurate and 
the actual size of the HCMA is 1,265 ac (512 ha), not 1,378 ac (558 
ha), made up of 698 ac (282 ha) of conservation lands and a 567 ac (229 
ha) conservation bank.
    Of the HCMA lands, 698 ac (282 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 1998b, p. 2), and the 567 ac (229 ha) 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 HEMP 
completed in July 1996, and the associated MOU signed on October 21, 
1996 (Service 1998b, p. 2). The lands set aside to offset mining 
impacts were placed under a permanent conservation easement. The 
approximately 567 ac (229 ha) Cajon Creek Conservation Bank was placed 
under a 10-year conservation easement on February 16, 1998. The 
original intent of the Service, ACOE, and Vulcan Materials Co. 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 Co. until 2025 
(Vulcan Materials Company 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., Service and California Department of Fish and Game).
    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 
HCMA 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 further discourage 
unauthorized access (M. Blane and Associates 1996, p. 28). Furthermore, 
trash existing on HCMA lands and adjacent lands within San Bernardino 
County Flood Control property is 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 HCMA 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 HCMA 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, which 
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 long-term conservation of habitat for 
the San Bernardino kangaroo rat.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified the following primary threats to the San Bernardino kangaroo 
rat: habitat loss, destruction, degradation, and fragmentation due to 
sand and gravel mining operations; flood control projects; and urban 
development. 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. Based on the reasoning provided 
below, we excluded from Unit 2 the approximately 1,265 ac (512 ha) of 
non-Federal lands within the Cajon Creek HCMA from the San Bernardino 
kangaroo rat final revised critical habitat designation under section 
4(b)(2) of the Act.

Benefits of Inclusion--Cajon Creek HCMA HEMP

    The inclusion of approximately 1,265 ac (512 ha) of non-Federal 
lands within the Cajon Creek HCMA in the revised critical habitat 
designation could be beneficial because it identifies lands to be 
managed for the conservation of the San Bernardino kangaroo rat. The 
process of proposing and finalizing the revised critical habitat rule 
provided the Service with the opportunity to evaluate and refine the 
features or PCEs essential to conservation of the subspecies within the 
geographical area occupied by the San Bernardino kangaroo rat at the 
time of listing, as well as to evaluate whether there are other areas 
essential for the conservation of the subspecies. The designation 
process included peer review and public comment on the identified 
features and areas. This process is valuable to land owners and 
managers in developing conservation management plans for identified 
areas, as well as any other occupied habitat or suitable habitat that 
may not have been included in the Service's determination of essential 
habitat.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts currently being 
implemented in the approximately 1,378 ac (558 ha) of lands within the 
Cajon Creek HCMA and as a result of the development of the conservation 
easement and the involvement of the public and local government 
representatives in the day-to-day operation of the bank. The process of

[[Page 61979]]

developing the HEMP has involved several partners including (but not 
limited to) CalMat Co., California Department of Fish and Game, ACOE, 
and the Service.
    The educational benefits of critical habitat designation derived 
through informing our partners and other members of the public of areas 
important for the long-term conservation of the San Bernardino kangaroo 
rat have already been and continue to be achieved through: (1) 
Development and implementation of the HEMP; (2) the original 
designation process in 2002; and (3) publication of the proposed 
revisions to critical habitat in 2008, notices of public comment 
periods, and the public hearings.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed above, Federal agencies must consult with us on actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. All of the approximately 1,265 ac (512 ha) 
of HCMA lands in Unit 2 that are being excluded are on private 
property, with the potential Federal nexus for the San Bernardino 
kangaroo rat as a result of actions by ACOE. Therefore, including this 
area would provide some regulatory benefits under section 7(a) of the 
Act.
    However, the Cajon Creek HCMA HEMP and associated MOU provides for 
the conservation and management of the identified lands. The permanent 
conservation of these lands (i.e., conservation easement) is currently 
in progress. The HEMP addresses conservation issues from a coordinated, 
integrated perspective rather than a piecemeal project-by-project 
approach that could result in this area absent this plan, and will 
achieve more San Bernardino kangaroo rat conservation than would be 
achieved through such multiple site-by-site, project-by-project, 
section 7 consultations involving consideration of critical habitat. 
Furthermore, the HEMP includes proactive monitoring and management of 
conserved lands (as previously described), thereby reducing known 
threats to the San Bernardino kangaroo rat and its habitat. These 
measures provide assurance that the features essential to the 
conservation of the San Bernardino kangaroo rat within the Cajon Creek 
HCMA will be protected and managed to conserve this subspecies. In 
light of the progress made to establish conservation easements on these 
lands and the potential piecemeal project-by-project approach for 
future section 7 consultations that may occur on these lands, we 
conclude that the potential regulatory benefit of designating this area 
as critical habitat is minimal. The HEMP provides 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.

Benefits of Exclusion--Cajon Creek HCMA HEMP

    The Cajon Creek HCMA HEMP provides for conservation bank lands in a 
coordinated, integrated manner. The protection and active management of 
San Bernardino kangaroo rat and its essential habitat features on HCMA 
lands conserved the subspecies at this site and directly contributes to 
the survival and recovery of this species.
    The exclusion of the Cajon Creek HCMA lands from critical habitat 
will help preserve and foster the partnerships that we developed with 
Vulcan Materials Co., and the California Department of Fish and Game, 
and aid in encouraging other landowners to participate in conservation 
planning. Excluding the existing Cajon Creek HCMA lands demonstrates 
our good faith effort to work productively with non-Federal entities, 
which should encourage initiation and completion of conservation plans. 
As discussed above, many landowners and local jurisdictions perceive 
critical habitat being designated on lands covered by existing 
conservation plans as an unfair and unnecessary regulatory burden given 
the expense and time involved in developing and implementing 
conservation plans such as the Cajon Creek HCMA HEMP. The exclusion of 
this area signals to other private landowners that if they take steps 
to put their lands into conservation, they may avoid an additional 
layer of regulation, which, as we described above in the ``Conservation 
Partnerships on Non-Federal Lands'' section, sometimes acts as a 
disincentive for private landowners. Therefore, designation of lands 
covered by the HEMP may discourage other landowners from seeking or 
completing similar conservation efforts. We believe that fostering 
these types of partnerships with non-Federal landowners are critical 
for the conservation of the San Bernardino kangaroo rat.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Cajon Creek 
HCMA HEMP

    As discussed in the ``Benefits of Inclusion'' section, we believe 
the regulatory benefit of designating critical habitat on private lands 
covered by the Cajon Creek HCMA HEMP would be low. The Cajon Creek HCMA 
HEMP addresses conservation issues from a coordinated, integrated 
perspective rather than a piecemeal project-by-project approach and 
will achieve more San Bernardino kangaroo rat conservation than would 
be achieved through multiple site-by-site, project-by-project, section 
7 consultations involving consideration of critical habitat. 
Furthermore, the Cajon Creek HCMA HEMP provides for the proactive 
monitoring and management of conserved lands (as previously described), 
reducing known threats to the San Bernardino kangaroo rat or its 
habitat.
    Conservation and management of San Bernardino kangaroo rat habitat 
is essential to the survival and recovery of this subspecies. Such 
conservation needs are typically not addressed through the application 
of the statutory prohibition on destruction or adverse modification of 
critical habitat. The Cajon Creek HCMA HEMP provides 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. Furthermore, educational benefits that may be derived 
from a critical habitat designation are minimal and largely redundant 
to the educational benefits achieved through significant State and 
local government input during the development of this management plan.
    We developed a close partnership with the Cajon Creek HCMA HEMP 
participants through the development of this management plan that 
incorporates appropriate protections and management of this subspecies' 
essential physical and biological features. Those protections are 
consistent with the mandates under section 7 of the Act to avoid 
destruction or adverse modification of critical habitat and go beyond 
that prohibition by including active management and protection of 
essential habitat areas. Designation of critical habitat alone does not 
achieve recovery or require management of those lands identified in the 
critical habitat rule. We believe the recovery benefits of excluding 
the Cajon Creek HCMA lands and implementing the HEMP outweigh the 
recovery benefits of retaining these lands as critical habitat. 
Furthermore, the benefits to recovery of inclusion primarily have 
already been met through the identification of those areas most 
important to the subspecies. The minimal educational and potential 
regulatory benefits of including the Cajon Creek HCMA lands in critical 
habitat are small when compared to the impact such a designation could 
have

[[Page 61980]]

on our current and future partnerships. By excluding these lands from 
designation, we are eliminating a largely redundant layer of regulatory 
review for a limited set of projects on non-Federal lands that are 
addressed by the management plan and we are helping to preserve our 
ongoing partnership with the Cajon Creek HCMA HEMP participants and to 
encourage new partnerships with other landowners and jurisdictions. 
Those partnerships are critical for the conservation of the San 
Bernardino kangaroo rat. Designating critical habitat on non-Federal 
lands within areas covered by the Cajon Creek HCMA HEMP could have a 
detrimental effect to our partnership with the plan participants and 
could be a significant disincentive to the establishment of future 
partnerships and management plans with other partners.
    We reviewed and evaluated the exclusion of approximately 1,265 ac 
(512 ha) of non-Federal lands in Unit 2 from the designation of final 
revised critical habitat for the San Bernardino kangaroo rat and 
determined that the benefits of excluding these lands outweigh the 
benefits of including them. As discussed above, the Cajon Creek HCMA 
HEMP will provide for significant preservation and management of the 
physical and biological features essential to the conservation of the 
San Bernardino kangaroo rat and will help reach the recovery goals for 
this subspecies.

Exclusion Will Not Result in Extinction of the Subspecies--Cajon Creek 
HCMA HEMP

    We determined that the exclusion of non-Federal lands within the 
area covered by the Cajon Creek HCMA HEMP from the final revised 
designation of critical habitat for the San Bernardino kangaroo rat 
will not result in the extinction of the subspecies. The Cajon Creek 
HCMA HEMP provides protection and management, in perpetuity of lands 
within Unit 2, including the physical and biological features essential 
to the conservation of the San Bernardino kangaroo rat. Additionally, 
the jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
provide assurances that the subspecies will not go extinct as a result 
of this exclusion.

Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)

    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional HCP encompassing about 1.26 million ac (510,000 ha) in 
western Riverside County (Units 3 and 5). The MSHCP addresses 146 
listed and unlisted ``covered species,'' including the San Bernardino 
kangaroo rat. Participants in the MSHCP include 14 cities: 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. The Western Riverside County 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 Western Riverside County MSHCP will establish approximately 
153,000 ac (61,917 ha) of new conservation lands (Additional Reserve 
Lands) to complement the approximate 347,000 ac (140,426 ha) of 
existing natural and open space areas designated by the MSHCP as 
Public/Quasi-Public (PQP) lands. These PQP lands include those under 
Federal ownership, primarily managed by the USFS and BLM, and also 
permittee-owned open-space areas (e.g., State parks, County Flood 
Control, and county park lands). Federally owned PQP lands are 
designated as critical habitat herein. Collectively, the Additional 
Reserve Lands and PQP lands form the overall Western Riverside County 
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 of 
a Conceptual Reserve Design within the bounds of a 310,000 ac (125,453 
ha) ``Criteria Area'' that is interpreted as implementation of the 
MSHCP proceeds.
    Specific conservation objectives in the Western Riverside County 
MSHCP for the San Bernardino kangaroo rat include providing 4,400 ac 
(1,781 ha) of occupied or suitable habitat within the historical 
floodplains of the San Jacinto River and Bautista Creek and their 
tributaries in the MSHCP Conservation Area. This acreage goal can be 
attained 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 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 subspecies will be avoided until 
it is demonstrated that the conservation objectives for the subspecies 
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. Based on the reasoning 
provided below, we excluded from Unit 3 and Unit 5 the approximately 
595 ac (241 ha) of private lands and permittee-owned PQP lands within 
the MSHCP Plan Area from the revised critical habitat designation under 
section 4(b)(2) of the Act. The areas excluded 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, 
and in the Bautista Creek area upstream of the concrete-lined channel. 
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, 506 ac (205 ha) of lands within 
Unit 3 and Unit 5 owned by these two water districts are not excluded 
from the final revised designation under the Western Riverside County 
MSHCP.
    The 1998 final listing rule for the San Bernardino kangaroo rat 
identified the following primary threats to the San Bernardino kangaroo 
rat: Habitat loss, destruction, degradation, and fragmentation due to 
sand and gravel mining operations; flood control

[[Page 61981]]

projects; and urban development. 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--Western Riverside County MSHCP

    The inclusion of approximately 595 ac (241 ha) of permittee-owned 
or controlled lands within the Western Riverside County MSHCP could be 
beneficial because it identifies lands that require management for 
conservation of the San Bernardino kangaroo rat. The process of 
proposing and finalizing the revised critical habitat rule provided the 
Service with the opportunity to evaluate and refine the features or 
PCEs essential to the conservation of the subspecies within the 
geographical area occupied by the San Bernardino kangaroo rat at the 
time of listing, as well as to evaluate whether there are other areas 
essential for the conservation of the subspecies. The designation 
process included peer review and public comment on the identified 
features and areas. This process is valuable to land owners and 
managers in developing conservation management plans for identified 
areas, as well as any other occupied habitat or suitable habitat that 
may not have been included in the Service's determination of essential 
habitat.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts currently being 
planned and implemented in the approximately 595 ac (241 ha) of 
permittee-owned or controlled lands within the Western Riverside MSHCP. 
As described above, the process of developing the Western Riverside 
County MSHCP has involved several partners including (but not limited 
to) the participating jurisdictions, California Department of Fish and 
Game, and Federal agencies. The educational benefits of critical 
habitat designation derived through informing Western Riverside County 
MSHCP partners and other members of the public of areas important for 
the long-term conservation of this subspecies have already been and 
continue to be achieved through: (1) Development of the HCP; (2) the 
original designation process in 2002; and (3) publication of the 
proposed revisions to critical habitat in 2008, notices of public 
comment periods, and the public hearings.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed above, Federal agencies must consult with us on actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. There is the potential for future 
activities within the lands being excluded having a Federal nexus for 
the San Bernardino kangaroo rat as a result of actions by ACOE and the 
Federal Highways Administration. Therefore, including this area may 
provide some regulatory benefits under section 7(a) of the Act.
    However, the Western Riverside County MSHCP addresses conservation 
issues from a coordinated, integrated perspective rather than a 
piecemeal, project-by-project approach (as would occur on these lands 
under sections 7 and 10 of the Act absent this regional plan) and will 
achieve more San Bernardino kangaroo rat conservation in the Western 
Riverside County MSHCP plan area than we would through section 7 
consultations involving consideration of critical habitat. The PCEs 
required by the San Bernardino kangaroo rat will benefit by the 
conservation measures outlined in the Western Riverside County MSHCP. 
In summary, these conservation measures include: Preservation of high 
quality habitat; monitoring and management of preserve lands; 
restoration and enhancement of habitat; minimization of project 
impacts; education of the public and state and local governments; and 
conservation of partnerships. Such measures will remove or reduce known 
threats to the San Bernardino kangaroo rat and its PCEs in Unit 3 and 
Unit 5. The Western Riverside County MSHCP will ensure conservation and 
management actions take place that are not required by critical habitat 
designation (see ``Benefits of Designating Critical Habitat'' section 
above). For example, critical habitat designation does not ensure: 
Habitat enhancement and restoration; functional connections to 
adjoining habitat; or monitoring of the San Bernardino kangaroo rat 
(see discussion above).
    In light of the preferable regional scale of conservation planning 
utilized in the development of the Western Riverside County MSHCP and 
the conservation that has and will occur under the Western Riverside 
County MSHCP, we conclude that the potential regulatory benefit of 
designating these areas in Unit 3 and Unit 5 as critical habitat is 
minimal.

Benefits of Exclusion--Western Riverside County MSHCP

    Regional and subregional HCPs foster an ecosystem-based approach to 
habitat conservation planning, and once developed, conservation issues 
are addressed through a coordinated approach. However, these large and 
often costly regional plans are voluntary for the local jurisdiction 
that pursue this approach, in the sense that they could require 
landowners (e.g., homeowners, developers) to consult with the Service 
individually for a section 10 permit. As a result, the local 
jurisdiction would incur no costs associated with the landowner's need 
for a section 10 permit, requiring the landowner to obtain this permit 
prior to issuance of a building permit. However, this approach would 
result in uncoordinated, ``patchy'' conservation that would likely not 
further the recovery of federally listed species. Rather, by 
voluntarily developing these regional plans (versus individual 
landowner HCPs), the coordinated landscape-scale conservation results 
in preservation of interconnected linkage areas and populations that 
support recovery of listed species. We recognize that once an HCP is 
permitted, implementation of the conservation measures is not voluntary 
in order for permittees to receive incidental take coverage. However, 
the benefits of excluding lands under the scenario described above are: 
(1) Retaining and fostering the existing partnership and working 
relationship with all stakeholders; and (2) encouraging future regional 
HCP development or development of other species/habitat conservation 
plans. Additionally, exclusion of a HCP (such as the Western Riverside 
County MSHCP) demonstrates our good faith effort and working 
relationships, which should encourage initiation and completion of 
other HCPs.
    We developed close partnerships with all participating entities 
through the development of the Western Riverside County MSHCP, which 
incorporates appropriate protections and management for the San 
Bernardino kangaroo rat, its habitat, and the features essential to the 
conservation of this subspecies. By excluding 595 ac (241 ha) of lands 
in Unit 3 and Unit 5 from designation, we are eliminating an 
essentially redundant layer of regulatory review for projects covered 
by the Western Riverside County MSHCP, helping to preserve our ongoing 
partnership with HCP participants, and encouraging new partnerships 
with other landowners and jurisdictions. These partnerships with HCP

[[Page 61982]]

participants are critical for the conservation of the San Bernardino 
kangaroo rat.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Western 
Riverside County MSHCP

    As discussed in the ``Benefits of Inclusion'' section above, we 
believe the regulatory benefit of designating critical habitat on 
private lands and permittee-owned PQP lands covered by the Western 
Riverside County MSHCP would be low. The Western Riverside County MSHCP 
addresses conservation issues from a coordinated, integrated 
perspective rather than a piecemeal project-by-project approach and 
will achieve more San Bernardino kangaroo rat conservation than we 
would achieve through multiple site-by-site, project-by-project, 
section 7 consultations involving consideration of critical habitat.
    Conservation and management of San Bernardino kangaroo rat habitat 
is essential to the survival and recovery of this subspecies. Such 
conservation needs are typically not addressed through the application 
of the statutory prohibition on destruction or adverse modification of 
critical habitat. The specific conservation actions, avoidance and 
minimization measures, and management for the San Bernardino kangaroo 
rat and its PCEs provided by the Western Riverside County MSHCP exceed 
any conservation value provided as a result of regulatory protections 
that may be afforded through a critical habitat designation. The 
Western Riverside County MSHCP provides 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 benefits for the conservation of the San Bernardino 
kangaroo rat that would occur as a result of designating a small amount 
of as critical habitat (e.g., protection afforded through the section 
7(a)(2) consultation process) are minimal compared to the overall 
conservation benefits for the subspecies that will be realized through 
the implementation of the Western Riverside County MSHCP. Furthermore, 
educational benefits that may be derived from a critical habitat 
designation are minimal and largely redundant to the educational 
benefits achieved through significant public, State, and local 
government input during the development of the Western Riverside County 
MSHCP.
    We developed close partnerships with the 22 MSHCP permittees 
through the development of this regional HCP that incorporates 
appropriate protections and management of this subspecies' essential 
physical and biological features. Those protections are consistent with 
the mandates under section 7 of the Act to avoid destruction or adverse 
modification of critical habitat and go beyond that prohibition by 
including active management and protection of essential habitat areas. 
Designation of critical habitat alone does not achieve recovery or 
require management of those lands identified in the critical habitat 
rule. We believe the conservation benefits for the San Bernardino 
kangaroo rat that would occur as a result of designating those 595 ac 
(241 ha) in Unit 3 and Unit 5 as critical habitat (e.g., protection 
afforded through the section 7(a)(2) consultation process) is minimal 
compared to the overall conservation benefits for the subspecies that 
will be realized through the implementation of the Western Riverside 
County MSHCP. Furthermore, the benefits to recovery of inclusion 
primarily have already been met through the identification of those 
areas most important to the subspecies. By excluding these lands from 
designation, we are eliminating a largely redundant layer of regulatory 
review for a limited set of projects on non-Federal lands that are 
addressed by the MSHCP and we are helping to preserve our ongoing 
partnerships with the permittees and to encourage new partnerships with 
other landowners and jurisdictions. Those partnerships, and the 
landscape-level, multiple-species conservation planning efforts they 
promote, are critical for the conservation of the San Bernardino 
kangaroo rat. Designating critical habitat on non-Federal lands within 
the Western Riverside County MSHCP could have a detrimental effect to 
our partnerships with the 22 MSHCP permittees and could be a 
significant disincentive to the establishment of future partnerships 
and HCPs with other landowners.
    We reviewed and evaluated the exclusion of 595 ac (241 ha) of 
private and permittee-owned PQP lands within the Western Riverside 
County MSHCP plan area from the final revised critical habitat 
designation for the San Bernardino kangaroo rat and determined that the 
benefits of excluding these lands in Unit 3 and Unit 5 outweigh the 
benefits of including them. As discussed above, the MSHCP will provide 
for significant preservation and management of habitat for and features 
essential to the conservation of the San Bernardino kangaroo rat and 
will help reach the recovery goals for this subspecies.

Exclusion Will Not Result in Extinction of the Subspecies--Western 
Riverside County MSHCP

    In keeping with our analysis and conclusion detailed in our 
biological opinion for the Western Riverside County MSHCP (Service 
2004, pp. 298-299), we have determined that the exclusion of 595 ac 
(241 ha) of private lands and permittee-owned PQP lands within the 
Western Riverside County MSHCP plan area from the final designation of 
critical habitat for the San Bernardino kangaroo rat will not result in 
the extinction of the subspecies. The MSHCP provides protection and 
management, in perpetuity, of lands that meet the definition of 
critical habitat, including PCEs, for the subspecies in Unit 3 and Unit 
5. Additionally, the jeopardy standard of section 7 of the Act and 
routine implementation of conservation measures through the section 7 
process provide assurances that the subspecies will not go extinct as a 
result of this exclusion.

Application of Section 4(b)(2)--Other Relevant Impacts--Soboba Band of 
Luiseno Indians Settlement Act

Hemet/San Jacinto Integrated Recharge Recovery Project

    On July 31, 2008, the President signed the Soboba Band of Luiseno 
Indians Settlement Act (Pub. L. 110-297). As part of its obligations 
under the Settlement Agreement associated with this legislation, the 
Eastern Municipal Water District will implement an integrated water 
recharge and recovery program that includes the construction of 
recharge basins and well sites at the confluence of the San Jacinto 
River and Bautista Creek. This project is designed to provide water to 
the Soboba Band of Luiseno Indians in keeping with the Tribe's water 
rights. The Service issued a biological opinion to the ACOE for this 
project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5). The ACOE 
reinitiated consultation for this project on January 29, 2008 (see 
Bautista Creek discussion under the ``Summary of Changes From the 2007 
Proposed Rule To Revise Critical Habitat'' section of this rule for 
further information). The project will impact approximately 39 ac (16 
ha) of land within the floodplain.

Benefits of Inclusion--Hemet/San Jacinto Integrated Recharge Recovery 
Project

    The inclusion of 39 ac (16 ha) of Eastern Municipal Water District 
lands in this final revised critical habitat designation could be 
beneficial because it identifies lands that contain the

[[Page 61983]]

features essential to the conservation of the species. The process of 
proposing and finalizing the revised critical habitat rule provided the 
Service with the opportunity to evaluate and refine the features or 
PCEs essential to the conservation of the subspecies within the 
geographical area occupied by San Bernardino kangaroo rat at the time 
of listing, as well as to evaluate whether there are other areas 
essential for the conservation of the subspecies. The designation 
process included peer review and public comment on the identified 
features and areas. This process is valuable to land owners and 
managers in developing conservation management plans for identified 
areas, as well as any other occupied habitat or suitable habitat that 
may not have been included in the Service's determination of essential 
habitat.
    The educational benefits of critical habitat designation derived 
through informing our partners and other members of the public of areas 
important for the long-term conservation of San Bernardino kangaroo rat 
have already been achieved through previously designating this area as 
critical habitat and through the section 7 consultation process on the 
proposed action (Service 2006, pp. 1-41).
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed previously, Federal agencies must consult with us on 
actions that may affect critical habitat and must avoid destroying or 
adversely modifying critical habitat. On these approximately 39 ac (16 
ha) of Eastern Municipal Water District lands in Unit 3 that are being 
excluded, a Federal nexus exists for the San Bernardino kangaroo rat as 
a result of actions by the ACOE. Therefore, including this area would 
provide some regulatory benefits under section 7(a) of the Act.

Benefits of Exclusion--Hemet/San Jacinto Integrated Recharge Recovery 
Project

    The Soboba Band of Luiseno Indians Settlement Act and its 
associated Settlement Agreement represent a historic settlement of a 
decades-long water rights dispute under which the Tribe will receive an 
adequate and secure future water supply of 9,000 acre feet per year, 
$18 million from local water districts for economic development, $11 
million from the Federal government for water development, and 128 ac 
(52 ha) of land near Diamond Valley for commercial development. In 
turn, the Tribe agreed to forebear some portion of their water rights 
for 50 years, which has a monetary value of more than $58 million. 
Additionally, the Settlement Act provides local water districts and 
Tribal neighbors: 7,500 acre feet of new imported water per year until 
at least 2035; $10 million in Federal funds to help recharge the 
aquifer with imported water; up to 100 acres (41 ha) of Soboba Band of 
Luiseno Indians reservation land for endangered species habitat; use of 
up to 4,900 acre feet of Soboba Band of Luiseno Indians water for 50 
years for basin restoration; and the promise of new jobs and economic 
stimulus from Soboba Band of Luiseno Indians commercial development. 
The partnerships developed during the negotiation of this settlement 
are unique and are viewed as a framework for resolution of other water 
rights disputes. Implementation of the Settlement Agreement is expected 
to provide for restoration of the groundwater basin. Excluding the 39 
ac (16 ha) of lands in Unit 3 from the designation will remove any 
perception that the regulatory impact of the critical designation may 
impede successful implementation of this important agreement, and will 
help to preserve our ongoing partnership with this project's 
participants and the signatories to the Settlement Agreement. 
Additionally, this exclusion will encourage new partnerships with other 
landowners, water districts, and other jurisdictions. We believe 
encouraging such partnerships are critical for the conservation of the 
San Bernardino kangaroo rat.

Benefits of Exclusion Outweigh Benefits of Inclusion--Hemet/San Jacinto 
Integrated Recharge Recovery Project

    We reviewed and evaluated the benefits of inclusion and benefits of 
exclusion for the approximately 39 ac (16 ha) of non-Federal Eastern 
Municipal Water District lands in Unit 3, and determined that the 
benefits of excluding these lands outweigh the benefits of including 
them as critical habitat. We acknowledge that the designation of 
critical habitat on these lands would likely provide a conservation 
benefit to the San Bernardino kangaroo rat through the section 7(a)(2) 
consultation process. However, as discussed above, the benefits of 
excluding the area covered by the Hemet/San Jacinto Integrated Recharge 
Recovery Project are high and outweigh any regulatory or other benefit 
of including these lands in critical habitat, as such exclusion will 
help to preserve and foster the partnerships and inter-governmental 
relationships that have been developed over many years to achieve 
sustainable water management and habitat restoration in the San Jacinto 
River Basin. By excluding these lands, we will remove any additional 
regulatory impact resulting from a critical habitat designation that 
may potentially interfere with implementation of the Settlement 
Agreement. In addition to restoration of the groundwater basin, 
implementation of the historic Settlement Agreement will restore the 
Soboba Band of Luise[ntilde]o Indians' water rights and allow the Tribe 
to manage their water resources for the betterment of the Tribe, which 
is expected to provide an economic stimulus to the Tribe and 
surrounding communities as well as providing for restoration of the 
groundwater basin.

Exclusion Will Not Result in Extinction of the Subspecies--Hemet/San 
Jacinto Integrated Recharge Recovery Project

    We determined that the exclusion of the 39 ac (16 ha) of non-
Federal lands within the area covered by the Hemet/San Jacinto 
Integrated Recharge Recovery Project from the final revised designation 
of critical habitat for the San Bernardino kangaroo rat will not result 
in the extinction of the subspecies. The area is occupied by the San 
Bernardino kangaroo rat, and the protections afforded through section 9 
of the Act, the jeopardy standard of section 7 of the Act, and routine 
implementation of conservation measures through the section 7 process 
provide assurances that the subspecies will not go extinct as a result 
of this exclusion.

Required Determinations

Takings--Executive Order 12630

    In accordance with E.O. 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the San Bernardino kangaroo rat in a 
takings implications assessment. Critical habitat designation does not 
affect landowner actions that do not require Federal funding or 
permits, nor does it preclude development of habitat conservation 
programs or issuance of incidental take permits to permit actions that 
do require Federal funding or permits to go forward. The takings 
implications assessment concludes that this final revised designation 
of critical habitat for the San Bernardino kangaroo rat does not pose 
significant takings implications.

[[Page 61984]]

Regulatory Planning and Review--Executive Order 12866

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant under E.O. 12866. OMB bases its determination 
upon the following four criteria:
    (1) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (2) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (3) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (4) Whether the rule raises novel legal or policy issues.

Civil Justice Reform--Executive Order 12988

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of the Act. This final rule uses standard property 
descriptions and identifies the physical and biological features 
essential to the conservation of the species within the designated 
areas to assist the public in understanding the habitat needs of the 
San Bernardino kangaroo rat.

Federalism--Executive Order 13132

    In accordance with E.O. 13132 (Federalism), this final 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, these final critical habitat designations with 
appropriate State resource agencies in California. During the public 
comment periods, we contacted appropriate State and local agencies and 
jurisdictions, and invited them to comment on the proposed revised 
critical habitat designation for the San Bernardino kangaroo rat. In 
total, we responded to five letters received during these comment 
periods from local governments (see ``Summary of Comments and 
Recommendations'' section). None of the critical habitat designation 
for the San Bernardino kangaroo rat occurs on State land, and, 
therefore, will have little impact on State and local governments and 
their activities. The designations may have some benefit to these 
governments in that the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the 
primary constituent elements of the habitat are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).

Energy Supply, Distribution, or Use--Executive Order 13211

    On May 18, 2001, the President issued E.O. 13211 on regulations 
that significantly affect energy supply, distribution, and use. E.O. 
13211 requires agencies to prepare Statements of Energy Effects when 
undertaking certain actions. This revision to critical habitat for the 
San Bernardino kangaroo rat is not considered a significant regulatory 
action under E.O. 12866. OMB has provided guidance for implementing 
this Order that outlines nine outcomes that may constitute ``a 
significant adverse effect'' when compared without the regulatory 
action under consideration. The economic analysis finds that none of 
these criteria are relevant to this analysis. Thus, based on 
information in the economic analysis (Appendix C), energy-related 
impacts associated with San Bernardino kangaroo rat conservation 
activities within the areas included in the final designation of 
critical habitat are not expected. As such, the final designation of 
critical habitat is not expected to significantly affect energy 
supplies, distribution, or use, and a Statement of Energy Effects is 
not required.

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

    In accordance with the Unfunded Mandates Reform Act, the Service 
makes the following findings:
    (1) This rule would 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; Aid to 
Families with Dependent Children 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 section 7 of the Act, the only regulatory effect is that Federal 
agencies must ensure that their actions do not destroy or adversely 
modify critical habitat. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (2) We do not believe that this rule would significantly or 
uniquely affect small governments because it would not produce a 
Federal mandate of $100 million or greater in any year; that is, it is 
not a ``significant regulatory action'' under the Unfunded Mandates 
Reform Act. As discussed in the economic analysis, anticipated future 
impacts in areas designated as critical habitat will be borne by the 
Federal Government and San Bernardino County Flood

[[Page 61985]]

Control District (SBCFCD); in areas excluded from the final 
designation, the total anticipated future impacts are not attributable 
to the designation of critical habitat. By definition, Federal agencies 
are not considered small entities, although the activities they fund or 
permit may be proposed or carried out by small entities. The SBCFCD is 
also not considered to be a small entity because it services a 
population exceeding the criteria for a ``small entity.'' As such, a 
Small Government Agency Plan is not required.

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

    Under the Regulatory Flexibility Act, as amended by the Small 
Business Regulatory Enforcement Fairness Act (5 U.S.C. 802(2)), 
whenever an agency is required to publish a notice of rulemaking for 
any proposed or final rule, it must prepare and make available for 
public comment a regulatory flexibility analysis that describes the 
effect of the rule on small entities (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The Small Business Regulatory 
Enforcement Fairness Act amended the Regulatory Flexibility Act to 
require Federal agencies to provide a certification statement of the 
factual basis for certifying that the rule will not have a significant 
economic impact on a substantial number of small entities. In this 
final rule, we are certifying that the critical habitat designation for 
the San Bernardino kangaroo rat will not have a significant economic 
impact on a substantial number of small entities. The following 
discussion explains our rationale.
    According to the Small Business Administration, small entities 
include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; and small businesses (13 CFR 121.201). Small businesses 
include manufacturing and mining concerns with fewer than 500 
employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if the revised designation of critical habitat for the 
San Bernardino kangaroo rat would affect a substantial number of small 
entities, we considered the number of small entities affected within 
particular types of economic activities, such as residential and 
commercial development. We considered each industry or category 
individually to determine if certification is appropriate. In 
estimating the numbers of small entities potentially affected, we also 
considered whether their activities have any Federal involvement; some 
kinds of activities are unlikely to have any Federal involvement and 
thus will not be affected by the designation of critical habitat. 
Designation of critical habitat only affects activities conducted, 
funded, permitted, or authorized by Federal agencies; non-Federal 
activities are not affected by the designation.
    In areas where the subspecies is present, Federal agencies already 
are required to consult with us under section 7 of the Act on 
activities they fund, permit, or implement that may affect the San 
Bernardino kangaroo rat (see Section 7 Consultation section) or their 
critical habitat. Future consultations to avoid the destruction or 
adverse modification of critical habitat would be incorporated into the 
existing consultation process. In the case of completed consultations 
for ongoing Federal activities, however, the Federal agency would be 
required to reinitiate consultation (see Application of the ``Adverse 
Modification'' Standard section). Designation of critical habitat, in 
that case, could result in an additional economic impact on small 
entities.
    In our final economic analysis of the proposed revision of critical 
habitat, we evaluated the potential economic effects on small business 
entities resulting from conservation actions related to the proposed 
revision of critical habitat for the San Bernardino kangaroo rat. The 
analysis is based on the estimated incremental impacts associated with 
the rulemaking as described in section 2 of the analysis. The analysis 
evaluates the potential for economic impacts related to activity 
categories including water conservation, flood control, and 
development. Impacts of conservation activities are not anticipated to 
affect small entities in the following categories: Fire management on 
Federal lands; invasive, nonnative plant species management on Federal 
lands; recreation management on Federal lands; and surveying, 
monitoring, and other activities on Federal lands. Land managers which 
may be impacted by the proposed rule include the BLM, USFS, SBCFCD, and 
private landowners. Of the entities that are likely to bear incremental 
impacts, there are no entities identified as small businesses, small 
organizations, or small government jurisdictions. The Federal agencies 
(BLM and USFS) and the special district (SBCFCD) do not meet the 
criteria for a small business. Individual private landowners in San 
Bernardino kangaroo rat critical habitat are not considered small 
businesses. Please refer to our economic analysis (Appendix C) of the 
proposed revision of critical habitat for a more detailed discussion of 
potential economic impacts.
    In summary, we considered whether this final rule to revise 
critical habitat would result in a significant economic effect on a 
substantial number of small entities. For the above reasons and based 
on currently available information, we certify that the rule will not 
have a significant economic impact on a substantial number of small 
entities. Therefore, a regulatory flexibility analysis is not required.

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

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

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

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we

[[Page 61986]]

do not need to prepare environmental analyses as defined by 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 in the courts of the Ninth Circuit Court of Appeals (Douglas 
County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 
1042 (1996)).

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 of 1995. 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.

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 2002 designation of critical habitat (67 FR 19812) for the San 
Bernardino kangaroo rat included 710 ac (290 ha) of land within the 
Soboba Band of Luise[ntilde]o Indians Reservation. At the time of the 
2002 designation, we included these lands as critical habitat for 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 occupied areas that 
we are designating as critical habitat within the San Jacinto wash 
(Unit 3). However, at the time of the drafting of this final rule, we 
lack information regarding the subspecies' location and habitat on 
Soboba Band of Luise[ntilde]o Indians Reservation lands and are 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, due to the continuity of these lands with known 
occupied habitat, that these Tribal lands are likely occupied, at least 
in part, by the San Bernardino kangaroo rat, we do not know whether 
these lands contain 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 designated 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 
benefiting the San Bernardino kangaroo rat.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov and http://www.fws.gov/carlsbad/.

Author(s)

    The primary authors of this rulemaking are staff at the Carlsbad 
Fish and Wildlife Office, Carlsbad, California.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of 
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. Amend Sec.  17.95(a) by revising the entry for ``San Bernardino 
Kangaroo Rat (Dipodomys merriami parvus)'' to read as follows:


Sec.  17.95  Critical habitat--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 follows:
BILLING CODE 4310-55-P

[[Page 61987]]

[GRAPHIC] [TIFF OMITTED] TR17OC08.000

BILLING CODE 4310-55-C
    (6) Unit 1: Santa Ana River Wash, San Bernardino County, 
California. From USGS 1:24,000 quadrangles San Bernardino North and 
Devore.

[[Page 61988]]

    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 482433, 
3777208; 482510, 3777208; 482472, 3777140; 482478, 3776911; 482612, 
3776482; 482627, 3776397; 482637, 3775622; 482488, 3775622; 482355, 
3775366; 482348, 3775149; 482364, 3774946; 482386, 3774912; 482150, 
3774673; 482081, 3774571; 481748, 3774155; 481621, 3773744; 481590, 
3773748; 481552, 3773754; 481464, 3773760; 481227, 3773664; 481110, 
3773680; 481067, 3773702; 481054, 3773704; 481017, 3773705; 480939, 
3773677; 480770, 3773522; 480770, 3773486; 480755, 3773486; 480754, 
3773175; 480754, 3773170; 480731, 3773170; 480731, 3773473; 480731, 
3773532; 480731, 3773589; 480929, 3773768; 481548, 3774498; 481546, 
3774500; 481646, 3774625; 481627, 3774739; 481723, 3774752; 481967, 
3775193; 481996, 3775295; 481999, 3775520; 482088, 3775527; 482148, 
3775727; 482358, 3776254; 482367, 3776695; 482342, 3776902; 482296, 
3777059; thence returning to 482433, 3777208; land bounded by 486178, 
3774253; 486118, 3774252; 486084, 3774218; 486083, 3774217; 486063, 
3774197; 486030, 3774165; 485959, 3774096; 485933, 3774070; 485929, 
3774066; 485908, 3774045; 485869, 3774005; 485866, 3774003; 485856, 
3773996; 485830, 3773978; 485790, 3773949; 485779, 3773940; 485768, 
3773931; 485752, 3773918; 485752, 3773918; 485752, 3773918; 485753, 
3773918; 485785, 3773919; 485786, 3773919; 485851, 3773921; 485843, 
3773910; 485801, 3773869; 485762, 3773819; 485724, 3773760; 485653, 
3773680; 485553, 3773626; 485555, 3773539; 484779, 3773534; 484628, 
3773535; 484460, 3773521; 484384, 3773499; 484335, 3773457; 484273, 
3773434; 484214, 3773422; 484135, 3773370; 483968, 3773284; 483963, 
3773284; 483962, 3773151; 483165, 3773148; 483155, 3772707; 483175, 
3772709; 483184, 3772710; 483212, 3772710; 483968, 3772732; 483982, 
3772732; 483978, 3772346; 483972, 3772037; 484020, 3772040; 484021, 
3772023; 484198, 3772011; 484257, 3772092; 484782, 3772139; 484780, 
3772338; 484777, 3772734; 485573, 3772725; 485573, 3772735; 485567, 
3772990; 485567, 3773018; 485564, 3773122; 485969, 3773131; 486375, 
3773140; 486960, 3773152; 487249, 3772852; 487836, 3772852; 487988, 
3772810; 488127, 3772819; 488275, 3772838; 488435, 3772894; 488565, 
3772818; 489104, 3772812; 489682, 3773161; 489736, 3773231; 489949, 
3773320; 490054, 3773282; 490235, 3773380; 490237, 3773277; 490256, 
3773260; 490255, 3773255; 490255, 3773248; 490254, 3773241; 490253, 
3773235; 490251, 3773224; 490249, 3773218; 490248, 3773214; 490246, 
3773208; 490245, 3773205; 490242, 3773198; 490238, 3773188; 490235, 
3773181; 490232, 3773175; 490227, 3773167; 490224, 3773162; 490203, 
3773129; 490172, 3773081; 490138, 3773028; 490135, 3773031; 490053, 
3772906; 489911, 3772688; 489904, 3772676; 489642, 3772302; 489637, 
3772295; 489628, 3772281; 489558, 3772182; 489546, 3772168; 489540, 
3772156; 489535, 3772143; 489531, 3772132; 489527, 3772106; 489527, 
3772092; 489514, 3772094; 489484, 3772101; 489491, 3772085; 489552, 
3771945; 489606, 3771691; 489739, 3771615; 489778, 3771536; 490139, 
3771314; 490251, 3771275; 490362, 3771186; 490568, 3771101; 490581, 
3771044; 490828, 3771009; 490930, 3770866; 490949, 3770742; 491032, 
3770714; 491032, 3770715; 491059, 3770715; 491097, 3770703; 491142, 
3770693; 491174, 3770705; 491202, 3770704; 491250, 3770685; 491293, 
3770664; 491380, 3770670; 491439, 3770674; 491476, 3770671; 491515, 
3770689; 491537, 3770684; 491549, 3770689; 491617, 3770700; 491652, 
3770703; 491670, 3770703; 491686, 3770708; 491707, 3770703; 491733, 
3770688; 491760, 3770686; 491795, 3770687; 491827, 3770683; 491850, 
3770675; 491877, 3770683; 491903, 3770684; 491966, 3770680; 491990, 
3770671; 492044, 3770663; 492089, 3770660; 492107, 3770664; 492121, 
3770662; 492150, 3770649; 492174, 3770632; 492235, 3770626; 492287, 
3770632; 492341, 3770633; 492377, 3770635; 492408, 3770635; 492430, 
3770630; 492454, 3770613; 492484, 3770615; 492503, 3770622; 492528, 
3770629; 492556, 3770623; 492585, 3770621; 492608, 3770622; 492631, 
3770646; 492664, 3770673; 492689, 3770690; 492728, 3770708; 492788, 
3770715; 492838, 3770712; 492867, 3770710; 492893, 3770710; 492942, 
3770722; 493008, 3770721; 493071, 3770728; 493109, 3770725; 493169, 
3770711; 493210, 3770706; 493249, 3770705; 493272, 3770690; 493286, 
3770684; 493312, 3770680; 493353, 3770680; 493389, 3770691; 493420, 
3770719; 493448, 3770719; 493477, 3770718; 493529, 3770744; 493567, 
3770763; 493603, 3770784; 493603, 3770798; 493621, 3770807; 493650, 
3770798; 493673, 3770812; 493707, 3770827; 493722, 3770849; 493753, 
3770890; 493790, 3770903; 493814, 3770932; 493838, 3770965; 493870, 
3770976; 493897, 3771014; 493920, 3771030; 493945, 3771020; 493990, 
3771003; 494023, 3771003; 494058, 3771017; 494092, 3771036; 494112, 
3771068; 494134, 3771085; 494155, 3771117; 494182, 3771145; 494198, 
3771148; 494221, 3771168; 494530, 3771168; 494534, 3771164; 494885, 
3771167; 494829, 3771114; 494801, 3771078; 494764, 3771060; 494709, 
3771058; 494676, 3771045; 494661, 3771022; 494625, 3771007; 494584, 
3770923; 494545, 3770878; 494523, 3770849; 494474, 3770791; 494450, 
3770755; 494427, 3770710; 494409, 3770688; 494375, 3770658; 494362, 
3770626; 494321, 3770621; 494187, 3770621; 494080, 3770610; 493989, 
3770600; 493892, 3770580; 493800, 3770550; 493759, 3770543; 493729, 
3770528; 493679, 3770505; 493650, 3770480; 493623, 3770471; 493599, 
3770476; 493569, 3770480; 493545, 3770471; 493523, 3770463; 493502, 
3770464; 493487, 3770469; 493474, 3770469; 493457, 3770464; 493336, 
3770443; 493234, 3770425; 493158, 3770419; 493097, 3770413; 493061, 
3770411; 493066, 3770406; 493082, 3770397; 493082, 3770389; 493069, 
3770392; 493054, 3770397; 493037, 3770398; 493035, 3770399; 492992, 
3770422; 492923, 3770437; 492815, 3770459; 492664, 3770479; 492330, 
3770501; 492032, 3770524; 491898, 3770533; 491795, 3770536; 491696, 
3770531; 491433, 3770524; 491196, 3770529; 490853, 3770538; 490791, 
3770523; 490354, 3770790; 490049, 3771055; 489624, 3771408; 489247, 
3771737; 489233, 3771730; 489195, 3771766; 489156, 3771800; 489100, 
3771838; 489056, 3771872; 489040, 3771882; 488989, 3771914; 488941, 
3771943; 488921, 3771956; 488896, 3771969; 488869, 3771987; 488812, 
3772014; 488740, 3772046; 488691, 3772067; 488662, 3772080; 488635, 
3772090; 488597, 3772107; 488523, 3772127; 488441, 3772148; 488353, 
3772171; 488320, 3772172; 488194, 3772172; 488174, 3772175; 488143, 
3772186; 488128, 3772192; 488109, 3772196; 488057, 3772201; 487983, 
3772200; 487921, 3772198; 487854, 3772191; 487798, 3772186; 487738, 
3772177; 487698, 3772167; 487688, 3772165; 487651, 3772155; 487603, 
3772144; 487578, 3772136; 487543, 3772128; 487492, 3772114; 487449, 
3772104; 487424, 3772097; 487392, 3772088; 487372, 3772085; 487358, 
3772082; 487343, 3772081; 487319, 3772078; 487322, 3772063; 487323, 
3772023; 487436, 3771514; 487188, 3771518; 487209, 3771571; 487180, 
3771590; 487180, 3771624; 485815, 3771615; 485590, 3771539; 485590,

[[Page 61989]]

3771542; 485488, 3771545; 485412, 3771501; 485282, 3771412; 485247, 
3771450; 485161, 3771406; 485132, 3771415; 484866, 3771415; 484742, 
3771485; 484624, 3771514; 484412, 3771510; 484352, 3771473; 484231, 
3771469; 484069, 3771532; 484021, 3771532; 483872, 3771488; 483710, 
3771485; 483583, 3771510; 483380, 3771580; 483374, 3771576; 483352, 
3771632; 483272, 3771646; 483209, 3771670; 483159, 3771672; 483159, 
3771674; 483080, 3771709; 482980, 3771761; 482999, 3771872; 482656, 
3771948; 482643, 3771914; 482475, 3772002; 482354, 3772060; 482304, 
3772060; 482294, 3772110; 482154, 3772117; 482127, 3772144; 482126, 
3772206; 482062, 3772206; 481970, 3772307; 481518, 3772310; 481515, 
3772426; 481295, 3772430; 480869, 3772419; 480763, 3772407; 480757, 
3772406; 480758, 3772526; 480758, 3772530; 480758, 3772637; 480758, 
3772719; 480757, 3773100; 481007, 3773063; 481231, 3773133; 481387, 
3773107; 481529, 3773153; 481532, 3773154; 481579, 3773163; 481607, 
3773157; 481568, 3772747; 481580, 3772743; 481747, 3772743; 482026, 
3772743; 482143, 3772692; 482198, 3772685; 482255, 3772679; 482282, 
3772679; 482366, 3772681; 482368, 3772681; 482368, 3772678; 482412, 
3772682; 482415, 3772682; 482418, 3772682; 482431, 3772685; 482461, 
3772691; 482466, 3772694; 482472, 3772695; 482487, 3772705; 482507, 
3772716; 482528, 3772732; 482533, 3772736; 482564, 3772760; 482618, 
3772806; 482674, 3772861; 482695, 3772879; 482708, 3772895; 482735, 
3772922; 482766, 3772963; 482782, 3772980; 482781, 3772986; 482796, 
3773011; 482720, 3773048; 482825, 3773282; 482909, 3773447; 482958, 
3773513; 483015, 3773553; 483118, 3773580; 483182, 3773580; 483261, 
3773580; 483325, 3773585; 483436, 3773602; 483554, 3773602; 483580, 
3773626; 483629, 3773687; 483682, 3773741; 483739, 3773784; 483809, 
3773811; 483833, 3773841; 483843, 3773861; 483893, 3773871; 483940, 
3773895; 483970, 3773908; 483982, 3773910; 483982, 3773930; 484666, 
3773926; 484678, 3773928; 484688, 3773927; 484698, 3773934; 484725, 
3773942; 484763, 3773944; 484807, 3773966; 484824, 3773978; 484864, 
3773982; 484914, 3773988; 484961, 3774019; 485013, 3774025; 485068, 
3774031; 485128, 3774048; 485130, 3774051; 485219, 3774081; 485282, 
3774087; 485320, 3774106; 485363, 3774132; 485431, 3774134; 485488, 
3774134; 485540, 3774140; 485550, 3774142; 485550, 3774140; 485550, 
3774114; 485755, 3774123; 485755, 3774123; 485754, 3774051; 485548, 
3773967; 485548, 3773966; 485548, 3773966; 485548, 3773965; 485548, 
3773965; 485547, 3773927; 485547, 3773927; 485547, 3773922; 485547, 
3773922; 485547, 3773912; 485547, 3773912; 485547, 3773912; 485601, 
3773913; 485620, 3773914; 485650, 3773944; 485754, 3774051; 485754, 
3774051; 485754, 3774051; 485754, 3774051; 485754, 3774051; 485832, 
3774096; 485846, 3774105; 485871, 3774124; 485875, 3774126; 485876, 
3774128; 485922, 3774178; 485951, 3774215; 485923, 3774214; 485923, 
3774214; 485923, 3774214; 485898, 3774214; 485858, 3774213; 485858, 
3774213; 485804, 3774211; 485829, 3774225; 485871, 3774243; 485914, 
3774271; 486002, 3774283; 486041, 3774283; 486107, 3774283; 486164, 
3774283; thence returning to 486178, 3774253; land bounded by 483188, 
3772080; 483188, 3772080; 483185, 3771948; 483187, 3771946; 483200, 
3771933; 483200, 3771933; 483200, 3771933; 483210, 3771944; 483210, 
3771944; 483210, 3771944; 483210, 3771944; 483215, 3771944; 483272, 
3771944; 483409, 3771944; 483848, 3771945; 483902, 3771945; 483913, 
3771945; 483914, 3771945; 483971, 3771945; 483971, 3771945; 483970, 
3771985; 483970, 3772008; 483969, 3772344; 483600, 3772345; 483374, 
3772346; 483211, 3772346; 483211, 3772346; 483211, 3772076; thence 
returning to 483188, 3772080; land bounded by 482603, 3772347; 482394, 
3772348; 482385, 3772348; 482376, 3772348; 482367, 3772348; 482367, 
3772348; 482367, 3772336; 482368, 3772263; 482368, 3772227; 482368, 
3772227; 482368, 3772227; 482377, 3772221; 482537, 3772147; 482622, 
3772108; 482644, 3772097; 482972, 3771945; 482972, 3771945; 482989, 
3771930; 483032, 3771892; 483032, 3771892; 483032, 3771892; 483071, 
3771893; 483159, 3771893; 483159, 3771893; 483160, 3771893; 483160, 
3771972; 483160, 3772072; 483160, 3772089; 483160, 3772346; 482602, 
3772348; 482603, 3772347; thence returning to 482603, 3772347; land 
bounded by 487253, 3772752; 487213, 3772753; 487209, 3772753; 487205, 
3772753; 487202, 3772753; 487184, 3772754; 487184, 3772754; 487178, 
3772754; 487178, 3772754; 486925, 3772750; 486908, 3772749; 486887, 
3772749; 486778, 3772747; 486778, 3772747; 486778, 3772618; 486779, 
3772346; 486463, 3772343; 486380, 3772342; 486380, 3772362; 486377, 
3772741; 485975, 3772734; 485975, 3772732; 485976, 3772665; 485980, 
3772361; 485981, 3772338; 485981, 3772338; 485582, 3772333; 485582, 
3772333; 485573, 3772333; 485182, 3772335; 485183, 3771998; 485184, 
3771948; 485184, 3771944; 485184, 3771940; 484909, 3771941; 484782, 
3771941; 484782, 3771945; 484782, 3771992; 484782, 3771994; 484445, 
3771996; 484381, 3771996; 484381, 3771943; 484381, 3771943; 484381, 
3771882; 484381, 3771881; 484381, 3771879; 484381, 3771875; 484381, 
3771824; 484381, 3771819; 484383, 3771819; 484482, 3771819; 484482, 
3771819; 484693, 3771820; 484693, 3771820; 484782, 3771821; 484782, 
3771821; 484852, 3771821; 484918, 3771821; 485184, 3771821; 485184, 
3771821; 485334, 3771821; 485577, 3771821; 485595, 3771821; 485595, 
3771821; 485595, 3771822; 485595, 3771840; 485595, 3771841; 485586, 
3771875; 485585, 3771939; 485594, 3771939; 485650, 3771939; 485651, 
3771939; 485653, 3771939; 485983, 3771941; 485983, 3771941; 485983, 
3771945; 485983, 3771961; 485983, 3771987; 485982, 3772032; 485983, 
3772032; 486380, 3772143; 486380, 3772143; 486434, 3772144; 486534, 
3772145; 486556, 3772146; 486580, 3772146; 486587, 3772146; 486896, 
3772151; 486935, 3772151; 486981, 3772152; 487032, 3772153; 487119, 
3772154; 487118, 3772179; 487118, 3772293; 487117, 3772350; 487117, 
3772350; 487167, 3772350; 487173, 3772350; 487177, 3772350; 487178, 
3772350; 487178, 3772350; 487213, 3772350; 487214, 3772350; 487223, 
3772350; 487226, 3772350; 487227, 3772350; 487229, 3772350; 487229, 
3772350; 487232, 3772350; 487233, 3772350; 487302, 3772349; 487303, 
3772349; 487303, 3772349; 487309, 3772348; 487310, 3772348; 487586, 
3772344; 487674, 3772343; 487726, 3772342; 487758, 3772342; 487763, 
3772342; 487768, 3772342; 487775, 3772341; 487790, 3772341; 487806, 
3772341; 487828, 3772341; 487849, 3772340; 487849, 3772340; 487995, 
3772338; 487995, 3772338; 488139, 3772336; 488139, 3772336; 488140, 
3772340; 488139, 3772336; 488144, 3772336; 488403, 3772332; 488403, 
3772332; 488409, 3772332; 488607, 3772329; 488614, 3772329; 488614, 
3772329; 488614, 3772329; 488614, 3772329; 488803, 3772326; 488811, 
3772326; 488811, 3772326; 488812, 3772447; 488812, 3772526; 488812, 
3772526; 488608, 3772528; 488608, 3772528; 488471, 3772529; 488405, 
3772530; 488404, 3772530; 488390, 3772530; 488351, 3772531; 488230, 
3772532; 488230, 3772532; 488122, 3772533; 488122, 3772533; 488010,

[[Page 61990]]

3772533; 488008, 3772533; 487996, 3772533; 487978, 3772543; 487842, 
3772614; 487838, 3772617; 487808, 3772632; 487808, 3772632; 487808, 
3772632; 487808, 3772632; 487790, 3772642; 487787, 3772643; 487778, 
3772648; 487589, 3772747; 487589, 3772747; 487290, 3772752; 487290, 
3772752; 487290, 3772752; 487254, 3772752; thence returning to 487253, 
3772752; land bounded by 480141, 3773180; 480561, 3773170; 480358, 
3773169; 480178, 3773168; 480175, 3773072; 479952, 3773074; 480084, 
3773116; 480141, 3773134; thence returning to 480141, 3773180; and land 
bounded by 479941, 3773070; 479952, 3773074; 479949, 3772973; 479948, 
3772898; 479145, 3772565; 479144, 3772356; 479994, 3772358; 480148, 
3772359; 479833, 3772330; 479557, 3772285; 479202, 3772222; 479151, 
3772184; 479140, 3772004; 478976, 3771948; 478779, 3771945; 478713, 
3771904; 478522, 3771812; 478287, 3771815; 478205, 3771764; 477763, 
3771491; 477697, 3771437; 477608, 3771412; 477525, 3771383; 477309, 
3771320; 477170, 3771266; 477170, 3771212; 477109, 3771212; 477014, 
3771164; 476912, 3771110; 476789, 3771082; 476655, 3771044; 476503, 
3771129; 476408, 3771152; 476379, 3771088; 476274, 3771072; 476112, 
3770910; 476046, 3770830; 476048, 3770944; 476057, 3771018; 476062, 
3771129; 476062, 3771256; 476067, 3771377; 476132, 3771405; 476215, 
3771428; 476304, 3771450; 476275, 3771579; 476785, 3771680; 476789, 
3771888; 477033, 3771888; 476982, 3771704; 477522, 3771701; 477528, 
3771863; 477662, 3771955; 477697, 3771993; 478227, 3772282; 478211, 
3772352; 478240, 3772399; 478249, 3772400; 478370, 3772405; 478373, 
3772405; 478454, 3772394; 479016, 3772392; 479139, 3772392; 479139, 
3772634; 479544, 3772790; 479599, 3772812; 479942, 3772945; thence 
returning to 479941, 3773070; excluding lands bounded by 487253, 
3772752; 487254, 3772752; 487290, 3772752; 487290, 3772752; 487290, 
3772752; 487589, 3772747; 487589, 3772747; 487778, 3772648; 487787, 
3772643; 487790, 3772642; 487808, 3772632; 487808, 3772632; 487808, 
3772632; 487808, 3772632; 487838, 3772617; 487842, 3772614; 487978, 
3772543; 487996, 3772533; 488008, 3772533; 488010, 3772533; 488122, 
3772533; 488122, 3772533; 488230, 3772532; 488230, 3772532; 488351, 
3772531; 488390, 3772530; 488404, 3772530; 488405, 3772530; 488471, 
3772529; 488608, 3772528; 488608, 3772528; 488812, 3772526; 488812, 
3772526; 488812, 3772447; 488811, 3772326; 488811, 3772326; 488803, 
3772326; 488614, 3772329; 488614, 3772329; 488614, 3772329; 488614, 
3772329; 488607, 3772329; 488409, 3772332; 488403, 3772332; 488403, 
3772332; 488144, 3772336; 488139, 3772336; 488140, 3772340; 488139, 
3772336; 488139, 3772336; 487995, 3772338; 487995, 3772338; 487849, 
3772340; 487849, 3772340; 487828, 3772341; 487806, 3772341; 487790, 
3772341; 487775, 3772341; 487768, 3772342; 487763, 3772342; 487758, 
3772342; 487726, 3772342; 487674, 3772343; 487586, 3772344; 487310, 
3772348; 487309, 3772348; 487303, 3772349; 487303, 3772349; 487302, 
3772349; 487233, 3772350; 487232, 3772350; 487229, 3772350; 487229, 
3772350; 487227, 3772350; 487226, 3772350; 487223, 3772350; 487214, 
3772350; 487213, 3772350; 487178, 3772350; 487178, 3772350; 487177, 
3772350; 487173, 3772350; 487167, 3772350; 487117, 3772350; 487117, 
3772350; 487118, 3772293; 487118, 3772179; 487119, 3772154; 487032, 
3772153; 486981, 3772152; 486935, 3772151; 486896, 3772151; 486587, 
3772146; 486580, 3772146; 486556, 3772146; 486534, 3772145; 486434, 
3772144; 486380, 3772143; 486380, 3772143; 485983, 3772032; 485982, 
3772032; 485983, 3771987; 485983, 3771961; 485983, 3771945; 485983, 
3771941; 485983, 3771941; 485653, 3771939; 485651, 3771939; 485650, 
3771939; 485594, 3771939; 485585, 3771939; 485586, 3771875; 485595, 
3771841; 485595, 3771840; 485595, 3771822; 485595, 3771821; 485595, 
3771821; 485577, 3771821; 485334, 3771821; 485184, 3771821; 485184, 
3771821; 484918, 3771821; 484852, 3771821; 484782, 3771821; 484782, 
3771821; 484693, 3771820; 484693, 3771820; 484482, 3771819; 484482, 
3771819; 484383, 3771819; 484381, 3771819; 484381, 3771824; 484381, 
3771875; 484381, 3771879; 484381, 3771881; 484381, 3771882; 484381, 
3771943; 484381, 3771943; 484381, 3771996; 484445, 3771996; 484782, 
3771994; 484782, 3771992; 484782, 3771945; 484782, 3771941; 484909, 
3771941; 485184, 3771940; 485184, 3771944; 485184, 3771948; 485183, 
3771998; 485182, 3772335; 485573, 3772333; 485582, 3772333; 485582, 
3772333; 485981, 3772338; 485981, 3772338; 485980, 3772361; 485976, 
3772665; 485975, 3772732; 485975, 3772734; 486377, 3772741; 486380, 
3772362; 486380, 3772342; 486463, 3772343; 486779, 3772346; 486778, 
3772618; 486778, 3772747; 486778, 3772747; 486887, 3772749; 486908, 
3772749; 486925, 3772750; 487178, 3772754; 487178, 3772754; 487184, 
3772754; 487184, 3772754; 487202, 3772753; 487205, 3772753; 487209, 
3772753; 487213, 3772753; thence returning to 487253, 3772752; 
excluding lands bounded by 482603, 3772347; 482603, 3772347; 482602, 
3772348; 483160, 3772346; 483160, 3772089; 483160, 3772072; 483160, 
3771972; 483160, 3771893; 483159, 3771893; 483159, 3771893; 483071, 
3771893; 483032, 3771892; 483032, 3771892; 483032, 3771892; 482989, 
3771930; 482972, 3771945; 482972, 3771945; 482644, 3772097; 482622, 
3772108; 482537, 3772147; 482377, 3772221; 482368, 3772227; 482368, 
3772227; 482368, 3772227; 482368, 3772263; 482367, 3772336; 482367, 
3772348; 482367, 3772348; 482376, 3772348; 482385, 3772348; 482394, 
3772348; thence returning to 482603, 3772347; and excluding lands 
bounded by 483188, 3772080; 483211, 3772076; 483211, 3772346; 483211, 
3772346; 483374, 3772346; 483600, 3772345; 483969, 3772344; 483970, 
3772008; 483970, 3771985; 483971, 3771945; 483971, 3771945; 483914, 
3771945; 483913, 3771945; 483902, 3771945; 483848, 3771945; 483409, 
3771944; 483272, 3771944; 483215, 3771944; 483210, 3771944; 483210, 
3771944; 483210, 3771944; 483210, 3771944; 483200, 3771933; 483200, 
3771933; 483200, 3771933; 483187, 3771946; 483185, 3771948; thence 
returning to 483188, 3772080.
    (ii) Note: Map of Unit 1--Santa Ana River Wash follows:
BILLING CODE 4310-55-P

[[Page 61991]]

[GRAPHIC] [TIFF OMITTED] TR17OC08.001

BILLING CODE 4310-55-C
    (7) Unit 2: Lytle/Cajon Creek Wash, San Bernardino County, 
California. From USGS 1:24,000 quadrangles San

[[Page 61992]]

Bernardino South, Redlands, Yucaipa, and Harrison Mountain.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 459952, 
3788034; 460404, 3788506; 460540, 3788401; 460651, 3788312; 460753, 
3788234; 460844, 3788166; 461055, 3788012; 461159, 3787940; 461251, 
3787876; 461287, 3787860; 461340, 3787819; 461597, 3787644; 461773, 
3787530; 461793, 3787541; 461822, 3787541; 461919, 3787456; 462141, 
3787271; 462332, 3787119; 462452, 3787052; 462562, 3786978; 462505, 
3786840; 462634, 3786755; 462747, 3786722; 462898, 3786698; 462948, 
3786656; 463021, 3786224; 462998, 3786186; 463006, 3786144; 462925, 
3785866; 463882, 3784809; 464062, 3784361; 464695, 3782785; 465055, 
3783227; 465304, 3783532; 465304, 3783532; 465302, 3783530; 465302, 
3783530; 465433, 3783427; 465429, 3783386; 465403, 3783271; 465424, 
3783199; 465392, 3783068; 465424, 3782988; 465432, 3782982; 465431, 
3782981; 465596, 3782632; 465041, 3782194; 464977, 3782143; 464956, 
3782135; 464966, 3782109; 464966, 3782015; 464970, 3782018; 464983, 
3782026; 464995, 3782034; 465009, 3782041; 465022, 3782049; 465035, 
3782056; 465049, 3782063; 465062, 3782070; 465076, 3782077; 465089, 
3782083; 465103, 3782089; 465117, 3782095; 465131, 3782101; 465145, 
3782106; 465146, 3782107; 466006, 3782434; 465987, 3782362; 465982, 
3782341; 465477, 3782150; 465173, 3782034; 465170, 3782033; 465156, 
3782027; 465143, 3782022; 465129, 3782016; 465116, 3782010; 465103, 
3782003; 465090, 3781997; 465077, 3781990; 465064, 3781983; 465051, 
3781976; 465039, 3781969; 465026, 3781961; 465014, 3781954; 465002, 
3781946; 464990, 3781938; 464978, 3781929; 464966, 3781921; 464966, 
3781920; 464964, 3781574; 465590, 3781569; 465860, 3781567; 466040, 
3781032; 466159, 3780676; 466190, 3780676; 466195, 3780697; 466230, 
3780685; 466288, 3780630; 466333, 3780568; 466385, 3780353; 466406, 
3780260; 466420, 3780264; 466419, 3780263; 466500, 3779886; 466599, 
3779588; 466653, 3779578; 466710, 3779490; 466802, 3779432; 466802, 
3779321; 466837, 3779312; 466834, 3779254; 466897, 3779236; 466907, 
3779188; 467059, 3779188; 467069, 3778934; 467307, 3778921; 467516, 
3778692; 467672, 3778689; 467678, 3778535; 467980, 3778222; 468094, 
3778178; 468101, 3777708; 468260, 3777309; 468175, 3777309; 468185, 
3777328; 468198, 3777328; 468188, 3777341; 468177, 3777339; 468176, 
3777342; 468174, 3777352; 468171, 3777361; 468168, 3777371; 468164, 
3777380; 468161, 3777389; 468157, 3777398; 468153, 3777407; 468149, 
3777416; 468144, 3777425; 468139, 3777434; 468134, 3777443; 468129, 
3777451; 468127, 3777454; 468130, 3777456; 468053, 3777552; 468057, 
3777555; 467726, 3777938; 467602, 3777855; 467580, 3777877; 467649, 
3777923; 467369, 3778171; 467145, 3778607; 466888, 3778905; 466853, 
3778946; 466849, 3778952; 466840, 3778963; 466831, 3778975; 466822, 
3778987; 466813, 3778999; 466805, 3779011; 466797, 3779024; 466789, 
3779036; 466781, 3779049; 466773, 3779062; 466766, 3779075; 466759, 
3779088; 466752, 3779101; 466745, 3779114; 466739, 3779127; 466733, 
3779141; 466726, 3779154; 466725, 3779158; 466709, 3779198; 466699, 
3779194; 466664, 3779281; 466664, 3779281; 466541, 3779591; 466540, 
3779595; 466537, 3779601; 466535, 3779608; 466534, 3779612; 466505, 
3779724; 466503, 3779726; 466496, 3779734; 465927, 3780307; 465267, 
3780970; 464964, 3781484; 464961, 3780501; 464659, 3780502; 466387, 
3778762; 466387, 3778762; 467801, 3777337; 467848, 3777336; 467863, 
3777311; 467598, 3777313; 466491, 3778019; 466490, 3778023; 466460, 
3778088; 466416, 3778228; 466405, 3778273; 466367, 3778416; 466354, 
3778439; 466254, 3778578; 466186, 3778645; 466107, 3778696; 465939, 
3778774; 465572, 3778936; 464859, 3779220; 464742, 3779254; 464602, 
3779284; 464484, 3779331; 464391, 3779358; 464292, 3779409; 464212, 
3779448; 464136, 3779482; 464060, 3779539; 464011, 3779580; 463936, 
3779606; 463869, 3779643; 463847, 3779711; 463798, 3779747; 463708, 
3779880; 463765, 3780088; 463688, 3780095; 463722, 3780180; 463627, 
3780243; 463400, 3780341; 463276, 3780386; 463334, 3780528; 463297, 
3780571; 463231, 3780563; 463014, 3780758; 462904, 3780750; 462716, 
3780655; 462565, 3780682; 462446, 3780764; 462442, 3780843; 462293, 
3780958; 462150, 3781059; 461632, 3781113; 461398, 3781138; 461295, 
3781153; 461250, 3781168; 461189, 3781198; 461131, 3781238; 461089, 
3781274; 461058, 3781268; 461040, 3781256; 460986, 3781207; 460722, 
3781407; 460204, 3781785; 459809, 3782090; 459809, 3782183; 459796, 
3782276; 459794, 3782282; 459866, 3782398; 459941, 3782522; 460082, 
3782680; 460409, 3783008; 460480, 3782941; 460484, 3782940; 460684, 
3782814; 460916, 3782671; 460933, 3782660; 460987, 3782627; 461028, 
3782600; 461065, 3782580; 461109, 3782556; 461150, 3782537; 461192, 
3782524; 461236, 3782518; 461272, 3782514; 461318, 3782505; 461356, 
3782492; 461391, 3782476; 461420, 3782458; 461468, 3782428; 461531, 
3782389; 461570, 3782364; 461594, 3782352; 461614, 3782343; 461644, 
3782334; 461679, 3782330; 461721, 3782318; 461752, 3782304; 461784, 
3782284; 461811, 3782266; 461828, 3782249; 461845, 3782230; 461863, 
3782206; 461882, 3782180; 461904, 3782158; 461930, 3782137; 461958, 
3782120; 462049, 3782063; 462413, 3781835; 462873, 3781547; 463898, 
3780891; 463997, 3781084; 463824, 3781308; 463789, 3781551; 463848, 
3781606; 463849, 3781605; 463851, 3781606; 463943, 3781748; 463957, 
3781677; 463948, 3781588; 464043, 3781499; 464081, 3781502; 464103, 
3781534; 464065, 3781588; 464113, 3781598; 464160, 3781636; 464227, 
3781575; 464243, 3781537; 464173, 3781474; 464259, 3781356; 464313, 
3781404; 464376, 3781353; 464440, 3781470; 464522, 3781591; 464494, 
3781960; 464867, 3782098; 464948, 3782128; 464938, 3782153; 464827, 
3782448; 464659, 3782622; 464624, 3782717; 464626, 3782720; 464556, 
3782900; 464540, 3782945; 464517, 3783006; 464558, 3783074; 464372, 
3783524; 464208, 3783799; 464180, 3783870; 464157, 3783972; 464167, 
3784064; 464135, 3784163; 464094, 3784264; 463986, 3784414; 463922, 
3784560; 463905, 3784580; 463905, 3784580; 463783, 3784722; 463721, 
3784874; 463636, 3784970; 463519, 3785042; 463225, 3785145; 463249, 
3785208; 462925, 3785424; 462767, 3785557; 462611, 3785655; 462526, 
3785643; 462109, 3786075; 462184, 3786450; 462194, 3786484; 462049, 
3786522; 461909, 3786595; 461686, 3786755; 461357, 3787001; 460956, 
3787294; 460860, 3787365; 460698, 3787481; 460543, 3787598; 460324, 
3787760; 460020, 3787985; thence returning to 459952, 3788034; and land 
bounded by 465902, 3781761; 465967, 3781566; 466006, 3781566; 466035, 
3781479; 466349, 3781286; 466346, 3781275; 465922, 3781528; 465922, 
3781567; 465860, 3781567; 465893, 3781759; 465893, 3781758; 465894, 
3781764; thence returning to 465902, 3781761.
    (ii) Note: Map of Unit 2--Lytle/Cajon Creek Wash follows:
BILLING CODE 4310-55-P

[[Page 61993]]

[GRAPHIC] [TIFF OMITTED] TR17OC08.002

BILLING CODE 4310-55-C
    (8) Unit 3: San Jacinto River Wash, Riverside County, California. 
From USGS 1:24,000 quadrangles San Jacinto, Lake Fulmor, and Blackburn 
Canyon.

[[Page 61994]]

    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 506626, 
3737807; 506919, 3737520; 507441, 3737006; 507652, 3736797; 507652, 
3736797; 507542, 3736682; 507439, 3736575; 507466, 3736575; 507466, 
3736575; 507680, 3736576; 507877, 3736577; 507877, 3736577; 507915, 
3736540; 507921, 3736534; 507968, 3736488; 507969, 3736487; 508139, 
3736320; 508225, 3736236; 508250, 3736211; 508250, 3736211; 508250, 
3736209; 508250, 3736111; 507865, 3736109; 507865, 3736126; 507865, 
3736134; 507865, 3736136; 507865, 3736146; 507811, 3736147; 507730, 
3736182; 507692, 3736202; 507730, 3736216; 507465, 3736422; 507445, 
3736438; 507374, 3736495; 507358, 3736507; 507332, 3736481; 507328, 
3736485; 507358, 3736514; 507352, 3736535; 507344, 3736558; 507321, 
3736626; 507306, 3736656; 507275, 3736689; 507231, 3736733; 507185, 
3736796; 507165, 3736822; 507165, 3736822; 507162, 3737005; 507161, 
3737049; 506929, 3737280; 506688, 3737512; 506696, 3737306; 506633, 
3737363; 506633, 3737362; 506550, 3737440; 506367, 3737614; 506367, 
3737614; 506363, 3737620; 506354, 3737633; 506349, 3737640; 506346, 
3737645; 506337, 3737658; 506329, 3737671; 506328, 3737671; 506320, 
3737684; 506318, 3737688; 506314, 3737694; 506307, 3737704; 506306, 
3737706; 506300, 3737714; 506296, 3737720; 506294, 3737724; 506287, 
3737734; 506287, 3737734; 506280, 3737744; 506275, 3737752; 506273, 
3737755; 506270, 3737760; 506267, 3737765; 506265, 3737767; 506260, 
3737775; 506253, 3737785; 506250, 3737790; 506246, 3737795; 506244, 
3737799; 506240, 3737805; 506239, 3737807; 506238, 3737808; 506238, 
3737808; 506234, 3737814; 506233, 3737816; 506231, 3737818; 506226, 
3737826; 506222, 3737831; 506220, 3737836; 506213, 3737846; 506213, 
3737846; 506213, 3737846; 506030, 3738122; 506001, 3738167; 505972, 
3738212; 505915, 3738309; 505915, 3738309; 505916, 3738309; 506026, 
3738385; 506037, 3738392; 506037, 3738392; 506134, 3738296; thence 
returning to 506626, 3737807; land bounded by 506699, 3737003; 506719, 
3737003; 506763, 3737003; 506772, 3737003; 506852, 3736917; 506882, 
3736906; 506882, 3736905; 506883, 3736905; 506883, 3736904; 506883, 
3736904; 506884, 3736903; 506884, 3736903; 506885, 3736903; 506885, 
3736902; 506885, 3736902; 506886, 3736901; 506886, 3736901; 506886, 
3736900; 506887, 3736900; 506887, 3736899; 506888, 3736899; 506888, 
3736898; 506888, 3736898; 506889, 3736897; 506889, 3736897; 506889, 
3736896; 506890, 3736896; 506890, 3736895; 506891, 3736895; 506891, 
3736894; 506891, 3736894; 506892, 3736893; 506892, 3736893; 506892, 
3736892; 506893, 3736892; 506893, 3736891; 506893, 3736891; 506894, 
3736890; 506894, 3736890; 506894, 3736889; 506895, 3736889; 506895, 
3736888; 506895, 3736888; 506896, 3736887; 506896, 3736887; 506896, 
3736886; 506897, 3736886; 506897, 3736885; 506897, 3736885; 506898, 
3736884; 506898, 3736884; 506898, 3736883; 506899, 3736883; 506899, 
3736882; 506899, 3736882; 506900, 3736881; 506900, 3736881; 506900, 
3736880; 506901, 3736880; 506901, 3736879; 506901, 3736879; 506902, 
3736878; 506902, 3736877; 506902, 3736877; 506902, 3736876; 506903, 
3736876; 506903, 3736875; 506903, 3736875; 506904, 3736874; 506904, 
3736874; 506904, 3736873; 506904, 3736873; 506905, 3736872; 506905, 
3736872; 506905, 3736871; 506906, 3736871; 506906, 3736870; 506906, 
3736869; 506906, 3736869; 506907, 3736868; 506907, 3736868; 506907, 
3736867; 506908, 3736867; 506908, 3736866; 506908, 3736866; 506908, 
3736865; 506909, 3736865; 506909, 3736864; 506909, 3736863; 506909, 
3736863; 506910, 3736862; 506910, 3736862; 506910, 3736861; 506910, 
3736861; 506911, 3736860; 506911, 3736859; 506911, 3736859; 506911, 
3736858; 506911, 3736858; 506912, 3736857; 506912, 3736857; 506912, 
3736856; 506912, 3736856; 506913, 3736855; 506913, 3736854; 506913, 
3736854; 506913, 3736853; 506914, 3736853; 506914, 3736852; 506914, 
3736852; 506914, 3736851; 506914, 3736850; 506915, 3736850; 506915, 
3736849; 506915, 3736849; 506915, 3736848; 506915, 3736848; 506916, 
3736847; 506916, 3736846; 506916, 3736846; 506916, 3736845; 506916, 
3736845; 506917, 3736844; 506917, 3736844; 506917, 3736843; 506917, 
3736842; 506917, 3736842; 506917, 3736841; 506918, 3736841; 506918, 
3736840; 506918, 3736839; 506918, 3736839; 506918, 3736838; 506918, 
3736838; 506919, 3736837; 506919, 3736837; 506919, 3736836; 506919, 
3736835; 506919, 3736835; 506919, 3736834; 506920, 3736834; 506920, 
3736833; 506920, 3736832; 506920, 3736832; 506920, 3736831; 506920, 
3736831; 506920, 3736830; 506921, 3736829; 506921, 3736829; 506921, 
3736828; 506921, 3736828; 506921, 3736827; 506921, 3736826; 506921, 
3736826; 506921, 3736825; 506922, 3736825; 506922, 3736824; 506922, 
3736823; 506922, 3736823; 506922, 3736822; 506922, 3736822; 506922, 
3736821; 506922, 3736820; 506923, 3736820; 506923, 3736819; 506923, 
3736819; 506923, 3736818; 506923, 3736817; 506923, 3736817; 506923, 
3736816; 506923, 3736816; 506923, 3736815; 506923, 3736814; 506923, 
3736814; 506924, 3736813; 506924, 3736813; 506924, 3736812; 506924, 
3736811; 506924, 3736811; 506924, 3736810; 506924, 3736810; 506924, 
3736809; 506924, 3736808; 506924, 3736808; 506924, 3736807; 506924, 
3736807; 506924, 3736806; 506924, 3736805; 506924, 3736805; 506924, 
3736804; 506925, 3736804; 506925, 3736803; 506925, 3736802; 506925, 
3736802; 506925, 3736801; 506925, 3736800; 506925, 3736800; 506925, 
3736799; 506925, 3736799; 506925, 3736798; 506925, 3736797; 506925, 
3736797; 506925, 3736796; 506925, 3736796; 506925, 3736795; 506925, 
3736794; 506925, 3736794; 506925, 3736793; 506925, 3736793; 506925, 
3736792; 506925, 3736791; 506925, 3736791; 506925, 3736790; 506925, 
3736790; 506925, 3736789; 506925, 3736788; 506925, 3736788; 506925, 
3736787; 506925, 3736786; 506925, 3736786; 506925, 3736785; 506925, 
3736785; 506925, 3736784; 506925, 3736783; 506925, 3736783; 506925, 
3736782; 506925, 3736782; 506925, 3736781; 506925, 3736780; 506925, 
3736780; 506925, 3736779; 506925, 3736779; 506925, 3736778; 506925, 
3736777; 506925, 3736777; 506925, 3736776; 506924, 3736776; 506924, 
3736775; 506924, 3736774; 506924, 3736774; 506924, 3736773; 506924, 
3736772; 506924, 3736772; 506924, 3736771; 506924, 3736771; 506924, 
3736770; 506924, 3736769; 506924, 3736769; 506924, 3736768; 506924, 
3736768; 506924, 3736767; 506923, 3736766; 506923, 3736766; 506923, 
3736765; 506923, 3736765; 506923, 3736764; 506923, 3736763; 506923, 
3736763; 506923, 3736762; 506923, 3736762; 506923, 3736761; 506923, 
3736760; 506922, 3736760; 506922, 3736759; 506922, 3736759; 506898, 
3736782; 506816, 3736861; 506816, 3736862; 506815, 3736862; 506815, 
3736862; 506814, 3736863; 506814, 3736863; 506814, 3736864; 506813, 
3736864; 506813, 3736865; 506812, 3736865; 506812, 3736865; 506811, 
3736866; 506811, 3736866; 506810, 3736867; 506810, 3736867; 506810, 
3736867; 506809, 3736868; 506809, 3736868; 506808, 3736869; 506808, 
3736869; 506807, 3736870; 506807, 3736870; 506807, 3736870; 506806,

[[Page 61995]]

3736871; 506806, 3736871; 506805, 3736872; 506805, 3736872; 506804, 
3736872; 506804, 3736873; 506804, 3736873; 506803, 3736873; 506803, 
3736874; 506803, 3736874; 506802, 3736875; 506802, 3736875; 506801, 
3736875; 506801, 3736876; 506800, 3736876; 506800, 3736877; 506799, 
3736877; 506799, 3736878; 506799, 3736878; 506798, 3736878; 506798, 
3736879; 506797, 3736879; 506797, 3736880; 506796, 3736880; 506796, 
3736881; 506796, 3736881; 506795, 3736881; 506795, 3736882; 506794, 
3736882; 506794, 3736883; 506793, 3736883; 506793, 3736884; 506793, 
3736884; 506792, 3736884; 506792, 3736885; 506791, 3736885; 506791, 
3736886; 506790, 3736886; 506790, 3736887; 506789, 3736887; 506789, 
3736887; 506789, 3736888; 506788, 3736888; 506788, 3736889; 506787, 
3736889; 506787, 3736890; 506786, 3736890; 506786, 3736890; 506786, 
3736891; 506785, 3736891; 506785, 3736892; 506784, 3736892; 506784, 
3736893; 506783, 3736893; 506783, 3736893; 506783, 3736894; 506782, 
3736894; 506782, 3736895; 506781, 3736895; 506781, 3736896; 506780, 
3736896; 506780, 3736896; 506780, 3736897; 506779, 3736897; 506779, 
3736898; 506778, 3736898; 506778, 3736899; 506777, 3736899; 506777, 
3736899; 506777, 3736900; 506776, 3736900; 506776, 3736901; 506775, 
3736901; 506775, 3736902; 506774, 3736902; 506774, 3736903; 506774, 
3736903; 506773, 3736903; 506773, 3736904; 506772, 3736904; 506772, 
3736905; 506771, 3736905; 506771, 3736906; 506771, 3736906; 506770, 
3736906; 506770, 3736907; 506769, 3736907; 506769, 3736908; 506769, 
3736908; 506768, 3736909; 506768, 3736909; 506767, 3736910; 506767, 
3736910; 506766, 3736910; 506766, 3736911; 506766, 3736911; 506765, 
3736912; 506765, 3736912; 506764, 3736913; 506764, 3736913; 506763, 
3736914; 506673, 3737003; 506686, 3737003; thence returning to 506699, 
3737003; and land bounded by 506793, 3736955; 506771, 3736932; 506826, 
3736879; 506834, 3736888; 506858, 3736912; 506803, 3736965; thence 
returning to 506793, 3736955; excluding lands bounded by 506793, 
3736955; 506803, 3736965; 506858, 3736912; 506834, 3736888; 506826, 
3736879; 506771, 3736932; thence returning to 506793, 3736955. Lands 
bounded by 507455, 3736348; 507444, 3736337; 507425, 3736316; 507444, 
3736297; 507457, 3736284; 507464, 3736291; 507488, 3736316; 507489, 
3736314; 507502, 3736303; 507515, 3736291; 507528, 3736280; 507542, 
3736269; 507556, 3736258; 507570, 3736248; 507575, 3736244; 507538, 
3736205; 507573, 3736173; 507557, 3736165; 507464, 3736251; 507444, 
3736269; 507291, 3736411; 507290, 3736410; 507275, 3736424; 506946, 
3736737; 506946, 3736737; 506946, 3736738; 506946, 3736738; 506946, 
3736739; 506946, 3736740; 506947, 3736740; 506947, 3736741; 506947, 
3736741; 506947, 3736742; 506947, 3736743; 506947, 3736743; 506947, 
3736744; 506948, 3736744; 506948, 3736745; 506948, 3736746; 506948, 
3736746; 506948, 3736747; 506948, 3736747; 506948, 3736748; 506949, 
3736749; 506949, 3736749; 506949, 3736750; 506949, 3736750; 506949, 
3736751; 506949, 3736751; 506949, 3736752; 506949, 3736753; 506949, 
3736753; 506950, 3736754; 506950, 3736754; 506950, 3736755; 506950, 
3736756; 506950, 3736756; 506950, 3736757; 506950, 3736757; 506950, 
3736758; 506950, 3736759; 506950, 3736759; 506951, 3736760; 506951, 
3736761; 506951, 3736761; 506951, 3736762; 506951, 3736762; 506951, 
3736763; 506951, 3736764; 506951, 3736764; 506951, 3736765; 506951, 
3736765; 506951, 3736766; 506951, 3736767; 506951, 3736767; 506952, 
3736768; 506952, 3736768; 506952, 3736769; 506952, 3736770; 506952, 
3736770; 506952, 3736771; 506952, 3736771; 506952, 3736772; 506952, 
3736773; 506952, 3736773; 506952, 3736774; 506952, 3736774; 506952, 
3736775; 506952, 3736776; 506952, 3736776; 506952, 3736777; 506952, 
3736777; 506952, 3736778; 506952, 3736779; 506952, 3736779; 506952, 
3736780; 506952, 3736781; 506953, 3736781; 506953, 3736782; 506953, 
3736782; 506953, 3736783; 506953, 3736784; 506953, 3736784; 506953, 
3736785; 506953, 3736785; 506953, 3736786; 506953, 3736787; 506953, 
3736787; 506953, 3736788; 506953, 3736788; 506953, 3736789; 506953, 
3736790; 506953, 3736790; 506953, 3736791; 506953, 3736791; 506953, 
3736792; 506953, 3736793; 506953, 3736793; 506953, 3736794; 506953, 
3736795; 506953, 3736795; 506953, 3736796; 506953, 3736796; 506953, 
3736797; 506953, 3736798; 506953, 3736798; 506952, 3736799; 506952, 
3736799; 506952, 3736800; 506952, 3736801; 506952, 3736801; 506952, 
3736802; 506952, 3736802; 506952, 3736803; 506952, 3736804; 506952, 
3736804; 506952, 3736805; 506952, 3736805; 506952, 3736806; 506952, 
3736807; 506952, 3736807; 506952, 3736808; 506952, 3736809; 506952, 
3736809; 506952, 3736810; 506952, 3736810; 506952, 3736811; 506952, 
3736812; 506951, 3736812; 506951, 3736813; 506951, 3736813; 506951, 
3736814; 506951, 3736815; 506951, 3736815; 506951, 3736816; 506951, 
3736816; 506951, 3736817; 506951, 3736818; 506951, 3736818; 506951, 
3736819; 506951, 3736819; 506950, 3736820; 506950, 3736821; 506950, 
3736821; 506950, 3736822; 506950, 3736822; 506950, 3736823; 506950, 
3736824; 506950, 3736824; 506950, 3736825; 506950, 3736825; 506949, 
3736826; 506949, 3736827; 506949, 3736827; 506949, 3736828; 506949, 
3736828; 506949, 3736829; 506949, 3736830; 506949, 3736830; 506949, 
3736831; 506948, 3736831; 506948, 3736832; 506948, 3736833; 506948, 
3736833; 506948, 3736834; 506948, 3736834; 506948, 3736835; 506948, 
3736836; 506947, 3736836; 506947, 3736837; 506947, 3736837; 506947, 
3736838; 506947, 3736839; 506947, 3736839; 506947, 3736840; 506946, 
3736840; 506946, 3736841; 506946, 3736842; 506946, 3736842; 506946, 
3736843; 506946, 3736843; 506945, 3736844; 506945, 3736844; 506945, 
3736845; 506945, 3736846; 506945, 3736846; 506945, 3736847; 506944, 
3736847; 506944, 3736848; 506944, 3736849; 506944, 3736849; 506944, 
3736850; 506944, 3736850; 506943, 3736851; 506943, 3736851; 506943, 
3736852; 506943, 3736853; 506943, 3736853; 506942, 3736854; 506942, 
3736854; 506942, 3736855; 506942, 3736856; 506942, 3736856; 506942, 
3736857; 506941, 3736857; 506941, 3736858; 506941, 3736858; 506941, 
3736859; 506940, 3736860; 506940, 3736860; 506940, 3736861; 506940, 
3736861; 506940, 3736862; 506939, 3736862; 506939, 3736863; 506939, 
3736864; 506939, 3736864; 506939, 3736865; 506938, 3736865; 506938, 
3736866; 506938, 3736866; 506938, 3736867; 506937, 3736868; 506937, 
3736868; 506937, 3736869; 506937, 3736869; 506937, 3736870; 506936, 
3736870; 506936, 3736871; 506936, 3736871; 506936, 3736872; 506935, 
3736873; 506935, 3736873; 506935, 3736874; 506935, 3736874; 506937, 
3736877; 507330, 3736478; 507328, 3736476; 507335, 3736469; 507342, 
3736462; 507361, 3736443; 507445, 3736359; 507455, 3736349; thence 
returning to 507455, 3736348; land bounded by 507212, 3736516; 507260, 
3736471; 507295, 3736509; 507248, 3736554; thence returning to 507212, 
3736516; land bounded by 506995, 3736726; 507050, 3736673; 507090, 
3736715; 507035, 3736768; thence returning to 506995, 3736726.
    Excluding lands bounded by 506995, 3736726; 507035, 3736768; 
507090,

[[Page 61996]]

3736715; 507050, 3736673; thence returning to 506995, 3736726; and 
excluding lands bounded by 507212, 3736516; 507248, 3736554; 507295, 
3736509; 507260, 3736471; thence returning to 507212, 3736516.
    Continuing to lands bounded by 508362, 3736111; 508440, 3736111; 
508760, 3736112; 508881, 3736112; 508941, 3736112; 509080, 3736113; 
509081, 3736113; 509575, 3736114; 509871, 3736115; 509871, 3736115; 
509944, 3736115; 510063, 3736116; 510273, 3735945; 510317, 3735910; 
510333, 3735897; 510422, 3735825; 510289, 3735824; 510221, 3735824; 
510213, 3735824; 510211, 3735824; 510086, 3735829; 510086, 3735829; 
509900, 3735836; 509900, 3735836; 509892, 3735836; 509892, 3735820; 
509873, 3735819; 509873, 3735798; 509870, 3735798; 509870, 3735804; 
509870, 3735814; 509870, 3735814; 509284, 3735812; 509269, 3735812; 
509247, 3735812; 509244, 3735836; 509168, 3735867; 509168, 3735868; 
509096, 3735896; 509101, 3735942; 509091, 3735948; 509091, 3735948; 
509073, 3735958; 509073, 3735963; 509073, 3735963; 509069, 3735963; 
509063, 3735963; 509063, 3735963; 508979, 3735964; 508979, 3735962; 
508979, 3735962; 508979, 3735962; 508947, 3735962; 508881, 3735962; 
508791, 3735962; 508761, 3735961; 508761, 3735954; 508761, 3735954; 
508761, 3735954; 508746, 3735954; 508746, 3735903; 508577, 3735903; 
508577, 3735900; 508574, 3735900; 508550, 3735900; 508519, 3735960; 
508519, 3735960; 508364, 3735959; thence returning to 508362, 3736111; 
land bounded by 510650, 3735641; 510696, 3735603; 510799, 3735520; 
510915, 3735426; 510926, 3735417; 510928, 3735416; 510993, 3735363; 
511422, 3735015; 511452, 3734991; 511473, 3734974; 511509, 3734945; 
511892, 3734636; 511916, 3734616; 511922, 3734611; 511953, 3734586; 
512009, 3734541; 512135, 3734542; 512485, 3734544; 512498, 3734541; 
512603, 3734481; 512703, 3734455; 512703, 3734455; 513047, 3734367; 
513047, 3734367; 513047, 3734336; 513047, 3734147; 513043, 3734147; 
512708, 3734144; 512708, 3734144; 512710, 3734050; 512711, 3733985; 
512693, 3733986; 512682, 3733994; 512682, 3733994; 512635, 3733975; 
512607, 3733964; 512607, 3733964; 512565, 3733952; 512514, 3733929; 
512326, 3734025; 512316, 3734058; 512316, 3734059; 512314, 3734065; 
512275, 3734095; 512269, 3734105; 512246, 3734119; 512238, 3734124; 
512137, 3734202; 512115, 3734220; 512093, 3734238; 512080, 3734248; 
512050, 3734273; 512048, 3734274; 512046, 3734276; 512033, 3734285; 
512016, 3734298; 511976, 3734328; 511909, 3734343; 511891, 3734346; 
511874, 3734350; 511866, 3734356; 511857, 3734362; 511811, 3734398; 
511802, 3734405; 511757, 3734444; 511729, 3734457; 511727, 3734458; 
511710, 3734461; 511710, 3734461; 511627, 3734472; 511617, 3734476; 
511607, 3734479; 511589, 3734485; 511579, 3734488; 511527, 3734534; 
511518, 3734543; 511509, 3734552; 511509, 3734614; 511509, 3734614; 
511510, 3734614; 511563, 3734668; 511618, 3734736; 511594, 3734736; 
511607, 3734753; 511610, 3734768; 511539, 3734839; 511458, 3734884; 
511369, 3734910; 511196, 3735014; 511196, 3735014; 511178, 3735025; 
510900, 3735258; 510900, 3735258; 510713, 3735415; 510713, 3735415; 
510696, 3735429; 510696, 3735429; 510670, 3735451; 510660, 3735470; 
510638, 3735603; 510638, 3735603; 510645, 3735624; 510649, 3735639; 
510650, 3735640; 510650, 3735640; thence returning to 510650, 3735641; 
and land bounded by 512090, 3734474; 512090, 3734474; 512093, 3734472; 
512104, 3734464; 512113, 3734456; 512130, 3734464; 512130, 3734464; 
512118, 3734488; 512104, 3734481; thence returning to 512090, 3734474; 
excluding lands bounded by 512090, 3734474; 512104, 3734481; 512118, 
3734488; 512130, 3734464; 512130, 3734464; 512113, 3734456; 512104, 
3734464; 512093, 3734472; thence returning to 512090, 3734474.
    (ii) Note: Map of Unit 3--San Jacinto River Wash follows:
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    (9) Unit 4: Cable Creek Wash, San Bernardino County, California. 
From USGS 1:24,000 quadrangles San

[[Page 61998]]

Bernardino South, Redlands, Yucaipa, and Harrison Mountain.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 463488, 
3787583; 463744, 3787580; 463715, 3787533; 463646, 3787536; 463616, 
3787529; 463602, 3787504; 463599, 3787437; 463618, 3787313; 463628, 
3787249; 463609, 3787215; 463602, 3787194; 463603, 3787154; 463614, 
3787118; 463603, 3787103; 463595, 3787091; 463627, 3787057; 463664, 
3787028; 463708, 3786998; 463756, 3786932; 463786, 3786880; 463793, 
3786839; 463794, 3786821; 463784, 3786780; 463795, 3786754; 463860, 
3786697; 463911, 3786653; 463917, 3786638; 463815, 3786610; 463941, 
3786497; 464028, 3786547; 463939, 3786634; 463978, 3786682; 464026, 
3786745; 464072, 3786789; 464168, 3786891; 464206, 3786889; 464218, 
3786834; 464300, 3786801; 464408, 3786892; 464461, 3787007; 464358, 
3787052; 464461, 3787180; 464486, 3787180; 464593, 3787180; 464597, 
3787136; 464564, 3787107; 464544, 3787091; 464532, 3787068; 464516, 
3787050; 464511, 3787015; 464492, 3786982; 464476, 3786941; 464451, 
3786888; 464388, 3786769; 464323, 3786685; 464274, 3786567; 464254, 
3786446; 464249, 3786395; 464263, 3786319; 464278, 3786278; 464306, 
3786248; 464392, 3786188; 464456, 3786161; 464489, 3786137; 464533, 
3786098; 464591, 3786071; 464645, 3786052; 464679, 3786064; 464726, 
3786044; 464761, 3786076; 464772, 3786114; 464791, 3786136; 464812, 
3786136; 464835, 3786125; 464847, 3786083; 464865, 3786044; 464865, 
3785996; 464865, 3785921; 464877, 3785905; 464905, 3785900; 464923, 
3785893; 464941, 3785900; 464955, 3785924; 464979, 3785921; 465000, 
3785896; 465015, 3785870; 465018, 3785842; 465022, 3785810; 465053, 
3785793; 465073, 3785792; 465091, 3785801; 465114, 3785822; 465134, 
3785833; 465164, 3785832; 465181, 3785804; 465177, 3785769; 465160, 
3785735; 465155, 3785714; 465164, 3785694; 465194, 3785694; 465219, 
3785697; 465252, 3785646; 465302, 3785573; 465367, 3785483; 465411, 
3785453; 465445, 3785409; 465476, 3785388; 465510, 3785371; 465516, 
3785275; 465519, 3785246; 465552, 3785201; 465604, 3785115; 465638, 
3785047; 465664, 3784997; 465730, 3784959; 465843, 3784900; 465846, 
3784898; 465883, 3784878; 465877, 3784853; 465876, 3784809; 465885, 
3784777; 465891, 3784739; 465886, 3784704; 465879, 3784669; 465871, 
3784651; 465871, 3784616; 465877, 3784572; 465826, 3784476; 465801, 
3784496; 465792, 3784481; 465784, 3784509; 465769, 3784522; 465716, 
3784545; 465697, 3784555; 465686, 3784577; 465653, 3784588; 465617, 
3784614; 465614, 3784634; 465580, 3784669; 465512, 3784536; 464473, 
3785523; 463196, 3786751; 463299, 3787054; 463331, 3787013; 463396, 
3786974; 463433, 3786983; 463446, 3787022; 463455, 3787089; 463482, 
3787091; 463479, 3787116; 463475, 3787141; 463467, 3787167; 463467, 
3787190; 463459, 3787216; 463438, 3787238; 463417, 3787259; 463409, 
3787278; 463409, 3787299; 463407, 3787321; 463399, 3787341; 463398, 
3787362; 463412, 3787387; 463433, 3787415; 463454, 3787435; 463471, 
3787466; 463486, 3787510; 463487, 3787543; thence returning to 463488, 
3787583.
    (ii) Note: Map of Unit 4--Cable Creek Wash follows:
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[[Page 62000]]

    (10) Unit 5: Bautista Creek, Riverside County, California. From 
USGS 1:24,000 quadrangle Blackburn Canyon.
    (i) Land bounded by the following Universal Transverse Mercator 
(UTM) North American Datum of 1983 (NAD83) coordinates (E, N): 514568, 
3727407; 514575, 3727407; 514581, 3727407; 514588, 3727407; 514593, 
3727407; 514594, 3727400; 514604, 3727317; 514613, 3727237; 514630, 
3727172; 514641, 3727149; 514659, 3727133; 514687, 3727111; 514735, 
3727089; 514787, 3727047; 514817, 3727014; 514834, 3726971; 514834, 
3726938; 514828, 3726894; 514828, 3726867; 514838, 3726842; 514860, 
3726822; 514876, 3726765; 514896, 3726705; 514920, 3726656; 514955, 
3726596; 514978, 3726573; 515017, 3726548; 515065, 3726527; 515087, 
3726515; 515119, 3726495; 515161, 3726465; 515184, 3726451; 515225, 
3726430; 515263, 3726401; 515298, 3726401; 515301, 3726391; 515279, 
3726357; 515267, 3726325; 515267, 3726280; 515279, 3726226; 515279, 
3726190; 515279, 3726148; 515291, 3726115; 515316, 3726054; 515344, 
3726000; 515395, 3725932; 515471, 3725841; 515510, 3725760; 515536, 
3725696; 515565, 3725637; 515601, 3725594; 515615, 3725497; 515617, 
3725406; 515624, 3725301; 515632, 3725267; 515676, 3725203; 515724, 
3725116; 515794, 3724968; 515822, 3724940; 515842, 3724928; 515883, 
3724925; 515912, 3724923; 515922, 3724914; 515953, 3724887; 515979, 
3724862; 515991, 3724838; 516002, 3724788; 516020, 3724736; 516033, 
3724701; 516052, 3724666; 516079, 3724648; 516103, 3724637; 516140, 
3724630; 516170, 3724625; 516207, 3724628; 516237, 3724623; 516270, 
3724587; 516307, 3724553; 516352, 3724530; 516391, 3724529; 516427, 
3724532; 516437, 3724536; 516410, 3724511; 516385, 3724448; 516328, 
3724429; 516147, 3724514; 516067, 3724496; 515959, 3724546; 515962, 
3724584; 515750, 3724813; 515546, 3725000; 515448, 3725089; 515461, 
3725175; 515486, 3725210; 515483, 3725372; 515505, 3725454; 515489, 
3725572; 515432, 3725718; 515343, 3725759; 515366, 3725854; 515280, 
3725966; 515238, 3726038; 515175, 3726130; 515172, 3726264; 515162, 
3726324; 515112, 3726394; 515023, 3726438; 514940, 3726499; 514877, 
3726578; 514800, 3726705; 514752, 3726802; 514756, 3726934; 514572, 
3727048; 514537, 3727207; 514480, 3727369; 514463, 3727407; 514529, 
3727407; thence returning to 514568, 3727407.
    (ii) Note: Map of Unit 5--Bautista Creek follows:

[[Page 62001]]

[GRAPHIC] [TIFF OMITTED] TR17OC08.005


[[Page 62002]]


* * * * *

    Dated: October 1, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-23515 Filed 10-16-08; 8:45 am]
BILLING CODE 4310-55-C