[Federal Register Volume 69, Number 193 (Wednesday, October 6, 2004)]
[Proposed Rules]
[Pages 59844-59859]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22395]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AJ11


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Atriplex coronata var. notatior 
(San Jacinto Valley crownscale)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), herein 
address the proposed designation of critical habitat for Atriplex 
coronata var. notatior (San Jacinto Valley crownscale) pursuant to the 
Endangered Species Act of 1973, as amended (Act). We identified 15,232 
(ac) (6,167 hectares (ha)) of habitat essential for the conservation of 
A. coronata var. notatior. In developing this proposal, we evaluated 
those lands determined to be essential to the conservation of A. 
coronata var. notatior to ascertain if any specific areas are 
appropriate for exclusion from critical habitat pursuant to section 
4(b)(2) of the Act. All habitat essential for the conservation of A. 
coronata var. notatior is either within our estimate of the areas to be 
conserved and managed by the approved Western Riverside Multiple 
Species Habitat Conservation Plan (MSHCP) in Riverside County, 
California, existing public and quasi-public lands plus additional 
conserved lands, or within areas where the MSHCP will ensure that 
future projects will not adversely alter essential hydrological 
processes. On the basis of our evaluation of the conservation measures 
afforded A. coronata var. notatior under the Western Riverside MSHCP, 
we have concluded that the benefits of excluding the lands covered by 
this MSHCP outweigh the benefits of including them as critical habitat. 
Thus, all areas essential for the conservation of A. coronata var. 
notatior within the conservation area of the approved Western Riverside 
MSHCP have been excluded from the designation of critical habitat for 
this species pursuant to section 4(b)(2) of the Act. Because all 
essential habitat for this taxon is within the conservation area of the 
Western Riverside MSHCP, no lands are being proposed as critical 
habitat for A. coronata var. notatior. This exclusion will not result 
in the extinction of A. coronata var. notatior. We are specifically 
seeking comment on the determination to exclude all habitat essential 
for the conservation of this taxon from designation as critical 
habitat.

DATES: We will accept comments from all interested parties until 
December 6, 2004. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by November 22, 
2004.

ADDRESSES: Written comments and materials may be submitted to us by one 
of the following methods:
    1. You may submit written comments and information to the Field 
Supervisor, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, California, 92009.
    2. You may hand-deliver written comments and information to our 
Carlsbad Fish and Wildlife Office at the above address, or fax your 
comments to (760) 431-9618.
    3. You may send comments by electronic mail (e-mail) to <a href="/cdn-cgi/l/email-protection#044253354742534b5b574e5247446273772a636b72"><span class="__cf_email__" data-cfemail="0f49583e4c495840505c45594c4f69787c21686079">[email protected]</span></a>. Please see the Public Comments Solicited section below 
for file format and other information about electronic filing.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this notice, will be available 
for public inspection, by appointment, during normal business hours at 
the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92009 (telephone (760) 431-9440).

FOR FURTHER INFORMATION CONTACT: Mr. Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, 
CA 92009 (telephone (760) 431-9440 or FAX (760) 431-9440).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposal are hereby solicited. We particularly seek 
public comment on whether we have appropriately identified all areas 
essential for the conservation of Atriplex coronata var. notatior, and 
on the appropriateness of excluding lands within the Western Riverside 
MSHCP from designation as critical habitat. Because all areas essential 
for the conservation of the taxon occur within the MSHCP, the result is 
that no lands will be proposed for designation as critical habitat for 
A. coronata var. notatior. If new information indicates that areas 
excluded from critical habitat should be designated or that there are 
additional areas essential for the conservation of the taxon, we may 
designate critical habitat as appropriate (50 CFR 424.12(g)). Comments 
are also sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species resulting from the designation;
    (2) Specific information on the amount and distribution of Atriplex 
coronata var. notatior habitat, and what habitat is essential to the 
conservation of the species and why;
    (3) Land use designations and current or planned activities in 
essential habitat areas and their possible impacts on the subject 
areas;
    (4) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposal and, in particular, any impacts on 
small entities; and
    (5) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to <a href="/cdn-cgi/l/email-protection#3f79680e7c796870606c75697c7f59484c11585049"><span class="__cf_email__" data-cfemail="5c1a0b6d1f1a0b13030f160a1f1c3a2b2f723b332a">[email protected]</span></a> in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn:

[[Page 59845]]

San Jacinto Valley crownscale'' in your e-mail subject header and your 
name and return address in the body of your message. If you do not 
receive a confirmation from the system that we have received your 
Internet message, contact us directly by calling our Carlsbad Fish and 
Wildlife Office at phone number 760/431-9440. Please note that the 
Internet address <a href="/cdn-cgi/l/email-protection#e3a5b4d2a0a5b4acbcb0a9b5a0a3859490cd848c95"><span class="__cf_email__" data-cfemail="286e7f196b6e7f67777b627e6b684e5f5b064f475e">[email protected]</span></a> will be closed at the 
termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. Additionally, we have also found 
that comparable conservation can be achieved by implementation of laws 
and regulations obviating the need for critical habitat. The Service's 
present system for designating critical habitat has evolved since its 
original statutory prescription into a process that provides little 
real conservation benefit, is driven by litigation and the courts 
rather than biology, limits our ability to fully evaluate the science 
involved, consumes enormous agency resources, and imposes huge social 
and economic costs. The Service believes that additional agency 
discretion would allow our focus to return to those actions that 
provide the greatest benefit to the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 36 percent (445 species) 
of the 1,244 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat. We address the habitat needs 
of all 1,244 listed species through conservation mechanisms such as 
listing, section 7 consultations, the section 4 recovery planning 
process, the section 9 protective prohibitions of unauthorized take, 
section 6 funding to the States, and the section 10 incidental take 
permit process. The Service believes it is these measures that may make 
the difference between extinction and survival for many species.
    We note, however, that a recent 9th Circuit judicial opinion, 
Gifford Pinchot Task Force v. United State Fish and Wildlife Service, 
has invalidated the Service's regulation defining destruction or 
adverse modification of critical habitat. We are currently reviewing 
the decision to determine what effect it may have on the outcome of 
consultations pursuant to Section 7 of the Act.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been overwhelmed with lawsuits regarding designation of 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA), all are part of the cost of 
critical habitat designation. None of these costs result in any benefit 
to the species that is not already afforded by the protections of the 
Act enumerated earlier, and they directly reduce the funds available 
for direct and tangible conservation actions.

Background

    Herein we discuss only those topics directly relevant to the 
identification and designation of critical habitat for Atriplex 
coronata var. notatior. For more information on the taxon, refer to the 
final listing rule published in the Federal Register on October 13, 
1998 (63 FR 54975).

Habitat

    Atriplex coronata var. notatior is restricted to highly alkaline, 
silty-clay soils in association with the Willows soil series and to a 
lesser extent, the Domino, Traver, Waukena, and Chino soils series 
(Service 1994, Knecht 1971). A. coronata var. notatior occupies 
seasonal wetlands, including floodplains and vernal pools that receive 
seasonal inundation, and within areas dominated by alkali playas, 
alkali scrub, and alkali grassland (Bramlet 1993, Roberts 1993). 
Seasonal wetlands that the species occupies are dependent upon adjacent 
transitional wetlands and

[[Page 59846]]

marginal wetlands within the watershed (Service 1994).
    Atriplex coronata var. notatior relies upon a hydrologic regime 
that includes sporadic flooding in combination with slow drainage in 
alkaline soils and habitats. The duration and extent of flooding or 
ponding can be extremely variable from one year to the next. Seasonal 
flooding is an important process that allows habitat to be maintained 
in a successional state, restores disturbed alkali habitats, and helps 
to disperse seed. These processes form a dynamic matrix that allows A. 
coronata var. notatior to colonize favorable sites and retreat from 
less favorable sites in response to disturbance and variations in 
annual rainfall (Service 1994).

Life History

    This bushy, erect annual is monoecious (both male and female 
reproductive organs occur on the same plant), with the staminate and 
pistillate flowers occurring in mixed clusters (Munz 1974, Taylor and 
Wilken 1993). Atriplex coronata var. notatior is a prolific seeder 
(Ogden Environmental and Energy Services Corporation (OEESC) 1993). 
Preliminary studies indicate that A. coronata var. notatior seeds 
retain a relatively high viability for at least several seasons (OEESC 
1993). A viable seed bank may exist in the soil of a known site even if 
plants are removed or fail to germinate for a season (OEESC 1993). A. 
coronata var. notatior produces floating seeds (June 4, 2004, A. 
Sanders, University of California, Riverside, pers. comm. to S. Brown, 
U.S. Fish and Wildlife Service). Seasonal flooding is necessary for 
seed dispersal (Service 1994). The floating seeds are likely dispersed 
during seasonal flooding by slow-moving flows within the floodplains 
and vernal pools where A. coronata var. notatior occurs. A. coronata 
var. notatior will generally germinate in the spring as flows recede 
(Service 1994). The species usually flowers in April and May, and sets 
fruit by May or June (Bramlet 1992). Other sources indicate that the 
flowering period may extend to August (California Native Plant Society 
2001, Munz 1974). The number of A. coronata var. notatior plants in a 
population complex varies in response to rainfall, extent of winter 
flooding, and temperature (Service 1998).

Status and Distribution

    Atriplex coronata var. notatior is endemic to western Riverside 
County, California. The species has not been studied extensively. 
Population estimates can vary greatly from year to year (Amec Earth and 
Environmental, Inc. 2001). Between 1990 and 1994, approximately 78,000 
individuals of this taxon were located (Service 1998). In the 1998 
final rule listing the species, we estimated the total occupied habitat 
consisted of approximately 400 ac (161.9 ha) of alkali habitats within 
a range of approximately 8,200 ac (3,318 ha) in western Riverside 
County (Service 1998). At the time of listing, approximately 75 percent 
of the known plants were associated with three population centers found 
in the San Jacinto Wildlife Area/Mystic Lake, the San Jacinto River 
floodplain between Lakeview and Nuevo, and the upper Salt Creek Vernal 
Pool Complex in the Hemet area. Recent surveys identified approximately 
83,741 individual plants occupying an aggregate total of 236.5 ac 
(95.71 ha) within a 6,000-ac (2,428 ha) survey area within the San 
Jacinto River between the Ramona Expressway and the mouth of Railroad 
Canyon (Glen Lukos Associates, Inc. 2000). The estimated range-wide 
population of approximately 106,000 plants is based on expected 
populations of 7,470 plants in the San Jacinto Wildlife Area, 15,000 
plants in the Upper Salt Creek Vernal Pool Complex, and 84,000 plants 
along the San Jacinto River between the Ramona Expressway and the mouth 
of Railroad Canyon (Glenn Lukos Associates, Inc. 2000).
    Atriplex coronata var. notatior is currently known from four 
general occurrence complexes: (1) The floodplain of the San Jacinto 
River at the San Jacinto Wildlife Area/Mystic Lake; (2) the floodplain 
of the San Jacinto River between the Ramona Expressway and Railroad 
Canyon Reservoir; (3) the Upper Salt Creek Vernal Pool Complex in the 
west Hemet area; and (4) the floodplain of Alberhill Creek north of 
Lake Elsinore. Most of the known occurrences of A. coronata var. 
notatior are on private land, and no occurrences are known from Federal 
lands. The taxon occurs on State land within the San Jacinto Wildlife 
Area (California Natural Diversity Data Base (CNDDB) 2003), on land 
owned by the Riverside County Habitat Conservation Agency (Roberts and 
McMillan 1997), and on the Upper Salt Creek Wetland Preserve which is 
owned and managed by Metropolitan Water District (Amec Earth and 
Environmental, Inc. 2001).
    San Jacinto Wildlife Area/Mystic Lake: Atriplex coronata var. 
notatior occurs on approximately 4,500 ac (1,800 ha) of alkali sink 
habitat including both undisturbed alkali grassland and degraded areas 
with dense stands of non-native weed species (Bramlet 1996, Roberts and 
McMillan 1997) within the San Jacinto Wildlife Area/Mystic Lake area. 
About 700 ac (280 ha) of this habitat has been inundated by Mystic 
Lake, and another 470 ac (190 ha) is devoted to duck ponds that are 
flooded through much of the growing season of A. coronata var. notatior 
(Roberts and McMillan 1997). Within this area, about 2,865 ac (1,146 
ha) of habitat is conserved within the San Jacinto Wildlife Area, 
however, about 250 ac (100 ha) is devoted to duck ponds with proposed 
expansions to 550 ac (220 ha) (Roberts and McMillan 1997). At least 36 
separate occurrences and as many as 27,000 individual plants, have been 
reported within the San Jacinto Wildlife Area/Mystic Lake area (Roberts 
and McMillan 1997). While some of these occurrences (including CNDDB 
element occurrence 12, with 20,400 individuals) are outside the San 
Jacinto Wildlife Area, all of the known occurrences in this area are 
proposed to be conserved within the Western Riverside MSHCP Additional 
Reserve Lands (Dudek and Associates 2003).
    Floodplain of the San Jacinto River between the Ramona Expressway 
and Railroad Canyon Reservoir: In 1996, Bramlet estimated the habitat 
for Atriplex coronata var. notatior in this area to be approximately 
3,820 ac (1,546 ha). In 2000, Glenn Lukos Associates surveyed 6,000 ac 
(2,428 ha) of habitat within the 100-year floodplain of the San Jacinto 
River between the Ramona Expressway and Railroad Canyon Reservoir. They 
observed 83,741 individuals on 237 ac (95.7 ha) of habitat (Glenn Lukos 
Associates, Inc. 2000). Approximately 90 percent of the individuals 
observed occurred between the Ramona Expressway and Interstate 215. 
Alkali playa habitat in this area has been greatly reduced in extent in 
recent years due to agricultural conversion to irrigated crops and 
alfalfa farming, as well as discing for weed abatement and sheep 
grazing (Bramlet 1996, Glenn Lukos Associates, Inc. 2000).
    In this area, Atriplex coronata var. notatior is conserved on a 60-
ac (24-ha) parcel owned by the Riverside County Habitat Conservation 
Agency (Roberts and McMillan 1997). The remainder of the habitat in 
this area is privately owned. The Western Riverside MSHCP is to include 
the conservation of habitat for A. coronata var. notatior within the 
floodplain of the San Jacinto River, and the maintenance of floodplain 
processes along the river in order to provide for the distribution of 
the species to shift over time as hydrologic conditions and seed bank 
sources change. In addition, the MSHCP identifies specific activities 
that will be covered under the Plan (i.e., covered activities) that are 
authorized

[[Page 59847]]

under the MSHCP. Pursuant to Section 7.3.7 of the MSHCP, the San 
Jacinto River Flood Control Project is a Covered Activity that would 
authorize the Riverside County Flood Control and Water Conservation 
District to design and implement flood control measures (including 
channelization or some other form or forms of engineered flood control) 
on the San Jacinto River between the Ramona Expressway and the mouth of 
Railroad Canyon (``San Jacinto River Project''). In addition to the 
flood control project, other covered activities within the vicinity of 
the San Jacinto River include Ramona Expressway bridge and culvert, 
Nuevo Road bridge, San Jacinto Avenue crossing, I-215 bridge and levee, 
Case Road bridge, Burlington Northern Santa Fe Railroad bridge, Goetz 
Road bridge, Ethanac Road bridge, Perris Valley Storm Drain Channel and 
Romoland Channel. This coverage is contingent upon complying with the 
criteria described for the San Jacinto River Project in the MSHCP. 
Included in the first criterion is the requirement that the future 
flood control project ``[c]onserve lands (`Mitigation Lands') and 
[provide for] the hydrology'' of the 8 Covered Species, which includes 
A. coronata var. notatior.
    Upper Salt Creek Vernal Pool Complex: The Upper Salt Creek Vernal 
Pool Complex in and west of Hemet contains large areas of alkali 
grassland with alkali playa and vernal pool communities. This region 
includes around 1,200 ac (485.6 ha) of alkali habitat (Bramlet 1996). 
The approximately 40-ac (16.2-ha) Upper Salt Creek Wetland Preserve is 
located on the western edge of this complex. This preserve was 
purchased and conserved in perpetuity for native species and habitats 
to offset the effects of the Eastside Pipeline Project (June 1, 2004, 
W. Wagner, pers. comm. to S. Brown, U.S. Fish and Wildlife Service). 
Extensive population studies have been conducted over multiple years 
with varying environmental conditions within the preserve. In 1996, the 
Atriplex coronata var. notatior population was estimated at 16,500 
individuals within the preserve. In 1997, the population was estimated 
at 6,200 individuals. In 1998, the population was estimated at 20,800 
individuals, and in 2001, the population was estimated at 136,948 
individuals (Amec Earth and Environmental, Inc. 2001). The remainder of 
the habitat in this area is privately owned, however, the MSHCP 
proposes the conservation of at least 6,900 acres of suitable habitat 
for the species within the San Jacinto River, Mystic Lake and Salt 
Creek areas. This conservation is to include the floodplain of an 
unnamed tributary to Salt Creek, and the MSHCP requires that floodplain 
processes be maintained along the tributary to provide for the 
distribution of the species to shift over time as hydrologic conditions 
and seed bank sources change.
    Alberhill Creek: This location of 185 plants was noted in 1997 and 
mapped southeast of Nichols Road and west of Alberhill Creek (CNDDB 
2003). More populations may occur in adjacent playa habitat (CNDDB 
2003). Though this population is on private lands, however, the MSHCP 
proposes to conserve these lands within its Additional Reserve Lands 
(Dudek and Associates 2003).

Threats

    Atriplex coronata var. notatior is declining throughout its range 
due to habitat destruction and fragmentation resulting from urban and 
agricultural development, pipeline construction, alteration of 
hydrology and floodplain dynamics, excessive flooding, channelization, 
off-road vehicle activity, trampling by cattle and sheep, weed 
abatement, fire suppression practices (including discing and plowing), 
and competition from non-native plant species (Bramlet 1993, Roberts 
and McMillan 1997, Service 1998).

Conservation Needs

    The conservation needs of Atriplex coronata var. notatior include 
conservation and management of occurrences to provide for long-term 
survival of the species within the larger context of the vernal playa 
community and its supporting hydrology. The spatial distribution of A. 
coronata var. notatior shifts over time as environmental conditions and 
the seed bank distribution change (Service 1998). A. coronata var. 
notatior lives in seasonal wetland habitat that is dependent on 
adjacent transitional wetlands and marginal wetlands within the 
watershed (Service 1994).

Previous Federal Actions

    Please see the final listing rule Atriplex coronata var. notatior 
for a description of previous Federal actions through October 13, 1998 
(63 FR 54975). At the time of the final rule, the Service determined 
designation of critical habitat was not prudent because such 
designation would not benefit the species.
    On November 15, 2001, a lawsuit was filed against the Department of 
the Interior (DOI) and the Service by the Center for Biological 
Diversity and California Native Plant Society, challenging our ``not 
prudent'' determinations for eight plants including Atriplex coronata 
var. notatior (CBD, et al. v. Norton, No. 01-CV-2101 (S.D. Cal.)). A 
second lawsuit asserting the same challenge was filed against DOI and 
the Service by the Building Industry Legal Defense Foundation (BILD) on 
November 21, 2001 (BILD v. Norton, No. 01-CV-2145 (S.D. Cal.)). The 
parties in both cases agreed to remand the critical habitat 
determinations to the Service for additional consideration. In an order 
dated July 1, 2002, the U.S. District Court for the Southern District 
of California directed us to reconsider our not prudent finding and 
publish a proposed critical habitat rule for A. coronata var. notatior, 
if prudent, on or before January 30, 2004. In a motion to modify the 
July 1, 2002 order, the DOI and the Service requested that the due date 
for the proposed rule for A. coronata var. notatior be extended until 
October 1, 2004. This motion was granted on September 9, 2003. This 
proposal complies with the court's ruling.
    In 2004, the Service completed a Biological and Conference Opinion 
in accordance with section 7 of the Act, regarding the issuance of an 
incidental take permit in connection with the Western Riverside County 
MSHCP pursuant to section 10(a)(1)(B) of the Act (Service 2004). The 
MSHCP establishes a multi-species conservation program to minimize and 
mitigate the expected loss of habitat values and the incidental take of 
``covered species.'' The intent of the MSHCP is to minimize incidental 
take of covered animals species in the Plan Area and to provide 
avoidance, minimization, and mitigation measures for the impacts of 
proposed activities on covered species and their habitats. The MSHCP 
Plan Area encompasses approximately 1.26 million ac (509,900 ha) in 
western Riverside County, including the entire known range of Atriplex 
coronata var. notatior. A. coronata var. notatior is a covered species 
under the MSHCP. In its Biological and Conference Opinion, the Service 
concluded that the MSHCP would not jeopardize the continued existence 
of A. coronata var. notatior (Service 2004). The MSHCP is discussed in 
greater detail in the section entitled ``Relationship of Critical 
Habitat to the Western Riverside Multiple Species Habitat Conservation 
Plan (MSHCP).''

Critical Habitat

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

[[Page 59848]]

accordance with the Act, on which are found those physical or 
biological features (I) essential to the conservation of the species 
and (II) that may require special management considerations or 
protection; and (ii) specific areas outside the geographic 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'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat.
    To be included in a critical habitat designation, the habitat must 
first be ``essential to the conservation of the species.'' Critical 
habitat designations identify, to the extent known using the best 
scientific and commercial data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Occupied habitat may be included in critical habitat only if the 
essential features thereon may require special management or 
protection. Thus, we do not include areas where existing management is 
sufficient to conserve the species. (As discussed below, such areas may 
also be excluded from critical habitat pursuant to section 4(b)(2)).
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the 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 available scientific and 
commercial data do not demonstrate that the conservation needs of the 
species so require, we will not designate critical habitat in areas 
outside the geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271) 
and our U.S. Fish and Wildlife Service Information Quality Guidelines 
(2002) provide criteria, establish procedures, and provide guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. They require our biologists, to the extent consistent 
with the Act and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, 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.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to Atriplex coronata var. notatior. 
Areas outside the critical habitat designation will continue to be 
subject to conservation actions that may be implemented under section 
7(a)(1), and to the regulatory protections afforded by the section 
7(a)(2) jeopardy standard and the section 9 take prohibition, as 
determined on the basis of the best available information at the time 
of the action. We specifically anticipate that federally funded or 
assisted projects affecting listed species outside their designated 
critical habitat areas may still result in jeopardy findings in some 
cases. Similarly, critical habitat designations made on the basis of 
the best available information at the time of designation will not 
control the direction and substance of future recovery plans, habitat 
conservation plans, or other species conservation planning efforts if 
new information available to these planning efforts calls for a 
different outcome.

Methods

    As required by section 4(b)(2) of the Act, we used the best 
scientific and commercial data available in determining the areas that 
are essential to the conservation of Atriplex coronata var. notatior. 
These included data from research and survey observations published in 
peer-reviewed articles, regional Geographic Information System (GIS) 
vegetation, soil, and species coverages (including layers for Riverside 
County), and data compiled in the CNDDB. We also reviewed available 
information that pertains to the habitat requirements (i.e., primary 
constituent elements) of this taxon such as material included in 
reports submitted during section 7 consultations.
    After all the information about the known occurrences of Atriplex 
coronata var. notatior was compiled, we created maps indicating the 
essential habitat associated with each of the occurrences. We used the 
information outlined above to aid in this task. The essential habitat 
was mapped using GIS and refined using topographical and aerial map 
coverages. These essential habitat areas were further refined by 
discussing each area with Fish and Wildlife Service biologists familiar 
with each area. After creating GIS coverage of the essential areas, we 
created legal descriptions of the essential areas. We used a 100-meter 
grid to establish Universal Transverse Mercator (UTM) North American 
Datum 27 (NAD 27) coordinates which, when connected, provided the 
boundaries of the essential areas.
    The areas of essential habitat were then analyzed with respect to 
special management considerations or protection and the provisions of 
section 4(b)(2) of the Act. Applicable and appropriate exclusions were 
made based on section 4(b)(2).

Primary Constituent Elements

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

Space for Individual and Population Growth, and for Normal Behavior

    Atriplex coronata var. notatior occupies seasonal wetlands, 
including vernal pools and floodplains that receive seasonal inundation 
(Service 1994). The species occurs within alkali playas, alkali scrub, 
and alkali

[[Page 59849]]

grassland, where these habitats occur in association with the Willows 
soil series, and to a lesser extent, the Domino, Traver, Waukena, and 
Chino soils series (Service 1994, Knecht 1971). Seasonal wetlands that 
the species occupies are dependent upon adjacent transitional wetlands 
and marginal wetlands within the watershed (Service 1994). These areas 
do not occur in great abundance, and in recent years have been degraded 
and lost to agriculture, off-road vehicle use, grazing, flood control 
projects, and development, including pipeline projects, transportation 
projects, and residential development projects (Service 1994).
    The four locations where the taxon is known to occur are no longer 
pristine and undisturbed. However, these wetlands and associated 
hydrology continue to provide essential biological and physical 
features necessary for this species in all four locales. All remaining 
occurrence complexes have been impacted by agricultural activities 
(Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997, Service 1998). 
The taxon is also affected by non-agricultural related clearing 
activities (Bramlet 1993, CNDDB 2003, Roberts and McMillan 1997, 
Service 1998). Some of the lands that make up the San Jacinto Wildlife 
Area were agricultural lands, and some farming continues today. The 
occurrence complex that occupies the floodplain of the San Jacinto 
River between the Ramona Expressway and the mouth of Railroad Canyon 
has been severely degraded during recent years by agriculture, 
including irrigated crops and alfalfa farming. Habitat at the Salt 
Creek Vernal Pool Complex has been degraded as a result of dry land 
farming. The occurrence at Alberhill Creek is adjacent to a plowed 
field.
    Atriplex coronata var. notatior can persist in the seed bank within 
disturbed lands, including agricultural areas. Restoration of these 
disturbed areas is essential for the conservation of this taxon. A. 
coronata var. notatior is expected to re-establish itself from the seed 
bank once lands that were previously cleared or are being used for 
agriculture are restored.

Water and Physiological Requirements

    Atriplex coronata var. notatior requires a hydrologic regime that 
includes sporadic flooding in combination with slow drainage in 
alkaline soils and habitats. The duration and extent of flooding or 
ponding can be extremely variable from one year to the next. Seasonal 
flooding is an important process that allows habitat to be maintained 
in a successional state, restores disturbed alkali habitats, and helps 
to disperse seed. These processes form a dynamic matrix that allows A. 
coronata var. notatior to colonize favorable sites and retreat from 
less favorable sites in response to disturbance and variations in 
annual rainfall (Service 1994). Irreversible actions that alter the 
hydrology of the seasonal wetlands or infringe upon the wetlands may 
threaten the survival of A. coronata var. notatior.
    The San Jacinto Wildlife Area/Mystic Lake occurrence complex and 
the occurrence complex located between the Ramona Expressway and the 
mouth of Railroad Canyon depend upon the San Jacinto River for their 
hydrology and seasonal flooding. The occurrence at Alberhill Creek 
depends upon the creek for its hydrology and seasonal flooding. The 
occurrence at the Upper Salt Creek Vernal Pool Complex is located in 
part within the floodplain of an unnamed tributary to Salt Creek. The 
natural floodplain processes of these waterways must be maintained as 
discussed in the Western Riverside MSHCP to allow for the conservation 
of these occurrence complexes.
    The Upper Salt Creek Vernal Pool Complex is in a natural depression 
and rainfall from the surrounding area flows across the land and pools 
within the complex. While some of the runoff is from undeveloped 
hillsides, providing the complex with a needed source of minerals, much 
of the watershed has been developed, and the flows traveling to the 
vernal pools include a large amount of urban runoff. The maintenance of 
clean, seasonal flows from the surrounding watershed is necessary for 
the conservation of this vernal pool complex.

Sites for Reproduction, Germination, and Seed Dispersal

    Seasonal flooding, as indicated above, is important for the 
reproduction, germination, and seed dispersal of Atriplex coronata var. 
notatior. The natural process of seasonal flooding allows habitat to be 
maintained in a successional state, restores disturbed alkali habitats, 
and helps to disperse seed. This flooding allows A. coronata var. 
notatior to colonize favorable sites and retreat from less favorable 
sites in response to disturbance and variations in annual rainfall 
(Service 1994). A. coronata var. notatior produces floating seeds (June 
4, 2004, A. Sanders, University of California, Riverside, pers. comm. 
to S. Brown, U.S. Fish and Wildlife Service). Seasonal flooding is 
necessary for seed dispersal (Service 1994). The floating seeds are 
likely dispersed during seasonal flooding by slow-moving flows within 
the floodplains and vernal pools where A. coronata var. notatior 
occurs. Natural floodplain processes are integral to the biotic 
processes this species uses to disperse and reproduce.
    The San Jacinto Wildlife Area/Mystic Lake occurrence complex and 
the occurrence complex located between the Ramona Expressway and the 
mouth of Railroad Canyon depend upon the seasonal flooding from the San 
Jacinto River for seed dispersal and for the maintenance of sites where 
seeds can germinate. The occurrence at Alberhill Creek depends upon the 
seasonal flooding of the creek for seed dispersal and for the 
maintenance of sites where seeds can germinate. The occurrence complex 
at the Upper Salt Creek Vernal Pool Complex depends upon the seasonal 
inundation of the pools from a combination of sheet flow from the 
surrounding watershed and the seasonal flooding of an unnamed tributary 
to Salt Creek for seed dispersal and the maintenance of sites where 
seeds can germinate. These natural hydrological processes must be 
maintained to allow for the reproduction and dispersal of the species 
within this occurrence complex.
    Pursuant to our regulations (50 CFR 424), we are required to 
identify the known physical and biological features, i.e., primary 
constituent elements, essential to the conservation of Atriplex 
coronata var. notatior, together with a description of any critical 
habitat that is proposed. In identifying the primary constituent 
elements, we used the best available scientific and commercial data 
available. The primary constituent elements determined to be essential 
to the conservation of A. coronata var. notatior are:

    (1) Seasonal wetland habitats, including floodplains and vernal 
pools, and the natural hydrologic processes upon which these 
habitats depend;
    (2) Vegetation communities, including alkali playa, alkali 
scrub, and alkali grassland habitats, within which the taxon is 
known to occur; and
    (3) Slow-draining alkali soils with a hard pan layer that 
provides for a perched water table, including the Willows, Domino, 
Traver, Waukena, and Chino Soils Series (Knecht 1971).

Description of Essential Habitat

    Atriplex coronata var. notatior has a narrow geographic 
distribution. Within its range, the taxon has specialized habitat 
requirements, including hydrology, vegetation communities, and soils. 
The areas that provide these specialized habitat requirements do not 
occur in great abundance and have been degraded and lost in recent 
years. The known range of the species is limited to

[[Page 59850]]

four occurrence complexes within western Riverside County. The four 
occurrence complexes are: (1) Floodplain of the San Jacinto River at 
the San Jacinto Wildlife Area/Mystic Lake; (2) Floodplain of the San 
Jacinto River between the Ramona Expressway and Railroad Canyon 
Reservoir; (3) Upper Salt Creek Vernal Pool Complex; and (4) Alberhill 
Creek. Each of these four occurrence complexes is essential to the 
conservation of the species. (Not all known populations of A. coronata 
var. notatior are considered essential for the conservation of the 
species, but all are conserved as part of the Western Riverside MSHCP). 
The significance of each occurrence complex is described in detail in 
the Background section. These complexes are mapped as three units in 
Map 1: Unit 1--San Jacinto River; Unit 2--Salt Creek (Hemet); and Unit 
3--Alberhill.
    Unit 1--San Jacinto River includes the first two occurrence 
complexes (the floodplain of the San Jacinto River at the San Jacinto 
Wildlife Area/Mystic Lake and the floodplain of the San Jacinto River 
between the Ramona Expressway and Railroad Canyon Reservoir) and 
comprises 12,046 acres, 6,535 ac (2,645 ha) of which are privately 
owned and 5,511 ac (2,230 ha) of which are owned by the California 
Department of Fish and Game. Between the mouth of the Railroad Canyon 
to the southwest and the Ramona Expressway, this unit is defined by the 
written criteria in the MSHCP. From the Ramona Expressway down to 
Interstate 215, these criteria closely follow the combined boundary of 
the mapped suitable soils and 100-year floodplain. South of I-215, the 
unit is constrained at the point where the Perris Valley Storm Drain 
enters the San Jacinto River from the North. The San Jacinto River is 
proposed to be channelized here. This will affect approximately 10 
percent of the remaining Atriplex coronata var. notatior (a rough 
estimate, as the populations fluctuate greatly with rainfall). North of 
the Ramona Expressway, within the San Jacinto Wildlife Area, the unit 
follows the 100-year floodplain of the San Jacinto River (excluding a 
small strip of heavily farmed agricultural land) east to Bridge Street. 
Along the eastern boundary, the unit follows the edge of the 100-year 
floodplain (where it meets the hills). A private dairy and a duck club 
on the eastern side are not included in this unit. The boundary follows 
the combined edge of the soils and 100-year floodplain around Mystic 
Lake on the northern end, and then roughly follows the combined edge of 
the soils and 100-year floodplain along the west side next to the 
Bernasconi Hills. Here the line bows out from the floodplain/soils line 
toward the edge of the hills to include a mapped occurrence of A. 
coronata var. notatior.
    Unit 2--Salt Creek (Hemet) includes the third occurrence complex 
(Upper Salt Creek Vernal Pool Complex) and comprises 3,154 ac (1,277 
ha), all of which are privately owned. To the south, this unit is bound 
by a tributary to Salt Creek that provides hydrology to part of the 
complex. To the west, the boundary follows the ridgeline that defines 
the watershed up to the northern extent of the Heartland Development 
(the Service has a Memorandum of Understanding that Heartland will 
ensure clean water flows continue to the south from their detention 
basin). To the southeast, the boundary includes part of the vernal pool 
complex, then bows in to avoid the Hemet Auto Mall, and back out to the 
northeast extent where it picks up the outflow of the Seattle Channel, 
which provides water to part of the complex by sheet flow across the 
land. To the northeast, the project is bound by the Tres Cerritos 
Hills, which also constitute part of the watershed. Unit 2 gets its 
water from a combination of the tributary to the south and the 
watershed to the north.
    Unit 3--Alberhill includes the fourth occurrence complex and 
comprises 32.3 ac (13.1 ha), all of which are privately owned. The Unit 
occurs within the floodplain of Alberhill Creek in a small pocket of 
willows soils. The edges of the unit are defined by the edge of the 
soil pocket. The north boundary is defined by Nichols Road. The south 
boundary is defined by a large stand of riparian vegetation.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be essential for conservation may require special 
management considerations or protection. Each of the four occurrence 
complexes of Atriplex coronata var. notatior faces existing threats 
that require special management and/or protection (Bramlet 1993, 
Roberts and McMillan 1997, Service 1998). The occurrence complex that 
occupies the floodplain of the San Jacinto River between the Ramona 
Expressway and Railroad Canyon Reservoir is threatened by non-
agriculture related clearing, agricultural activity, including 
irrigated crops and alfalfa farming, and a proposed flood control 
project (Bramlet 1996, Roberts and McMillan 1997, Dudek and Associates 
2003). The occurrence complex that occupies the San Jacinto Wildlife 
Area/Mystic Lake is threatened by invasive and weedy plant species 
introduced as food sources for waterfowl and also remaining from 
historical agricultural production (Bramlet 1996). Alteration of 
habitat for duck ponds (Roberts and McMillan 1997) and off-road vehicle 
activity (CNDDB 2003) are also management concerns in this area. The 
occurrence complex located within the Salt Creek Vernal Pool Complex is 
threatened by agricultural activities, including dry-land farming, weed 
abatement and fire suppression practices, grazing, invasion of non-
native plant species, alteration of hydrology, fragmentation, and a 
proposed road realignment project (CNDDB 2003, Bramlet 1996, Roberts 
and McMillan 1997, Dudek and Associates 2003). The occurrence complex 
at Alberhill Creek is located in a rapidly urbanizing area and is 
subject to the threat of increased human-associated disturbance. 
Actions that alter habitat suitable for the species or affect the 
natural hydrologic processes upon which the species depends could 
threaten the species in this area.
    Special management and/or protection for these occurrence complexes 
includes: (1) Protection of habitat by the Western Riverside MSHCP; (2) 
protection of floodplain processes by species-specific criteria in the 
MSHCP; (3) reduction of land conversion to agriculture by the MSHCP; 
and (4) land acquisition that will allow restoration of lands that have 
already been converted to agriculture.

Proposed Critical Habitat Designation

    We evaluated all four habitat areas (occurrence complexes) 
essential for the conservation of Atriplex coronata var. notatior for 
exclusion from critical habitat pursuant to section 4(b)(2) of the Act. 
All four essential habitat areas are within the conservation area of 
the approved Western Riverside Multiple Species Habitat Conservation 
Plan (MSHCP) in Riverside County. On the basis of our evaluation of the 
conservation measures afforded A. coronata var. notatior under the 
MSHCP, we have concluded that the benefit of excluding the lands 
covered by this MSHCP outweighs the benefit of including them as 
critical habitat (see discussion in section entitled ``Exclusions Under 
Section 4(b)(2) of the Act''). Thus, we are excluding the lands covered 
by this MSHCP from the designation of critical habitat for this taxon, 
pursuant to section 4(b)(2) of the Act. Because we have excluded all 
essential habitat areas from the

[[Page 59851]]

proposal, we are not proposing to designate any critical habitat for A. 
coronata var. notatior.

Effects of Critical Habitat Designation

Section 7 Consultation

    No critical habitat is being designated for Atriplex coronata var. 
notatior. The following is a general discussion of the section 7 
consultation process for designated critical habitat.
    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. In our 
regulations at 50 CFR 402.2, we define destruction or adverse 
modification as ``a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for both the survival and 
recovery of a listed species. Such alterations include, but are not 
limited to: Alterations adversely modifying any of those physical or 
biological features that were the basis for determining the habitat to 
be critical.'' We are currently reviewing the regulatory definition of 
adverse modification in relation to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. The conservation recommendations in a conference report are 
advisory. If a species is listed or critical habitat is designated, 
section 7(a)(2) requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that the permitted actions do not jeopardize the 
continued existence of the species or destroy or adversely modify 
critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Even in the absence of critical habitat designation, activities on 
Federal lands that may affect Atriplex coronata var. notatior will 
require section 7 consultation. Activities lands that may affect A. 
coronata var. notatior on private or State lands requiring a permit 
from a Federal agency, such as a permit from the Army Corps under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. If critical habitat for Atriplex coronata var. notatior 
were to be designated, then activities that may destroy or adversely 
modify critical habitat would include those that appreciably reduce the 
value of critical habitat to the taxon. We note that such activities 
may also jeopardize the continued existence of the species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat to the listed species.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. These Federal 
actions include, but are not limited to:
    (1) Removing, thinning, or destroying Atriplex coronata var. 
notatior habitat, whether by burning, mechanical, chemical, or other 
means (e.g., plowing, grubbing, grading, grazing, woodcutting, 
construction, road building, mining, mechanical weed control, herbicide 
application, etc.);
    (2) Activities that appreciably degrade or destroy Atriplex 
coronata var. notatior habitat could include, but are not limited to, 
livestock grazing, clearing, disking, farming, residential or 
commercial development, introducing or encouraging the spread of 
nonnative species, off-road vehicle use, and heavy recreational use;

[[Page 59852]]

    (3) Activities that appreciably diminish habitat value or quality 
through indirect effects (e.g., edge effects, invasion of exotic plants 
or animals, or fragmentation); and
    (4) Any activity, including the regulation of activities by the 
Corps of Engineers under section 404 of the Clean Water Act or 
activities carried out by or authorized by the Environmental Protection 
Agency (EPA), that could alter watershed or soil characteristics in 
ways that would appreciably alter or reduce the quality or quantity of 
surface and subsurface flow of water needed to maintain Atriplex 
coronata var. notatior habitat. These activities could include, but are 
not limited to, altering the natural fire regime; development, 
including road building and other direct or indirect activities; 
agricultural activities, livestock grazing, and vegetation manipulation 
such as clearing or grubbing in the watershed upslope from A. coronata 
var. notatior.
    (5) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities, or any activity funded or 
carried out by the Department of Transportation or Department of 
Agriculture that results in discharge of dredged or fill material, 
excavation, or mechanized land clearing of Atriplex coronata var. 
notatior habitat;
    (6) Sale or exchange of lands by a Federal agency to a non-Federal 
entity;
    (7) Licensing of construction of communication sites by the Federal 
Communications Commission;
    (8) Funding of construction or development activities by the U.S. 
Department of Housing and Urban Development; and
    (9) Funding and implementation of disaster relief projects by the 
FEMA and the Natural Resource Conservation Service's Emergency 
Watershed Program, including erosion control, flood control, and stream 
bank repair to reduce the risk of loss of property.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species or if the species may be affected by 
the action to ensure that their actions do not jeopardize the continued 
existence of the species.

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

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and revised, on the basis of the best available scientific 
data after taking into consideration the economic impact, national 
security impact, and any other relevant impact of specifying any 
particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    In our critical habitat designations, we have used the provisions 
outlined in section 4(b)(2) of the Act to evaluate lands essential to 
the conservation of the subject species for possible exclusion from 
proposed critical habitat. Lands which we have either excluded from or 
not included in critical habitat based on those provisions include 
those covered by: (1) Legally operative HCPs that cover the species and 
provide assurances that the conservation measures for the species will 
be implemented and effective; (2) draft HCPs that cover the species, 
have undergone public review and comment, and provide assurances that 
the conservation measures for the species will be implemented and 
effective (i.e., pending HCPs); (3) Tribal conservation plans that 
cover the species and provide assurances that the conservation measures 
for the species will be implemented and effective; (4) State 
conservation plans that provide assurances that the conservation 
measures for the species will be implemented and effective; and (5) 
Service National Wildlife Refuge System Comprehensive Conservation 
Plans that provide assurances that the conservation measures for the 
species will be implemented and effective.

Relationship of Critical Habitat to the Western Riverside Multiple 
Species Habitat Conservation Plan

    As described above, section 4(b)(2) of the Act requires us to 
consider other relevant impacts, in addition to economic and national 
security impacts, when designating critical habitat. Section 
10(a)(1)(B) of the Act authorizes us to issue permits for the take of 
listed wildlife species incidental to otherwise lawful activities. 
Development of a Habitat Conservation Plan (HCP) is a prerequisite for 
the issuance of an incidental take permit pursuant to section 
10(a)(1)(B) of the Act. An incidental take permit application must be 
supported by an HCP that identifies conservation measures that the 
permittee agrees to implement for the species to minimize and mitigate 
the impacts of the permitted incidental take.
    HCPs vary in size and may provide for incidental take coverage and 
conservation management for one or many federally listed species. 
Additionally, more than one applicant may participate in the 
development and implementation of an HCP. Large regional HCPs expand 
upon the basic requirements set forth in section 10(a)(1)(B) of the Act 
because they reflect a voluntary, cooperative approach to large-scale 
habitat and species conservation planning. Many of the large regional 
HCPs in southern California have been, or are being, developed to 
provide for the conservation of numerous federally listed species and 
unlisted sensitive species and the habitat that provides for their 
biological needs. These HCPs address impacts in a planning area and 
create a preserve design within the planning area. Over time, areas in 
the planning area are developed according to the HCP, and the area 
within the preserve is acquired, managed, and monitored. These HCPs are 
designed to implement conservation actions to address future projects 
that are anticipated to occur within the planning area of the HCP, in 
order to reduce delays in the permitting process.
    The Western Riverside MSHCP was in development from 1993 to this 
year. Participants in this HCP include 14 cities, the County of 
Riverside (including the Riverside County Flood Control and Water 
Conservation Agency, Riverside County Transportation Commission, 
Riverside County Parks and Open Space District, and Riverside County 
Waste Department), the California Department of Parks and Recreation, 
and the California Department of Transportation. The Western Riverside 
MSHCP is a subregional plan under the State's NCCP and was developed in 
cooperation with the California Department of Fish and Game. The MSHCP 
establishes a multi-species conservation program to minimize and 
mitigate the expected loss of habitat values and the incidental take of 
``covered species.'' The intent of the MSHCP is to minimize incidental 
take of these species in the Plan Area and to provide avoidance, 
minimization, and mitigation measures for the impacts of proposed 
activities on covered species and their habitats. Within the 1,260,000 
ac (510,000 ha) Plan Area of the MSHCP, approximately 153,000 ac 
(62,000 ha) of diverse habitats are to be conserved. The proposed 
conservation of 153,000 ac (62,000 ha) will complement other existing 
natural and open space areas (e.g., State Parks, Forest Service, and 
County Park Lands). The MSHCP Plan Area encompasses the entire known 
range of Atriplex coronata var. notatior.
    Atriplex coronata var. notatior is a covered species under the 
MSHCP. The taxon occurs on State land within the

[[Page 59853]]

San Jacinto Wildlife Area, on land owned by the Riverside County 
Habitat Conservation Agency, and on the Upper Salt Creek Wetland 
Preserve which is owned and managed by Metropolitan Water District. 
These conserved lands, which were identified as Public-Quasi Public 
(PQP) lands in the Western Riverside MSHCP, will be monitored and 
managed pursuant to the plan. Moreover, the Western Riverside MSHCP 
proposes the conservation and management of additional habitat for the 
species within the San Jacinto River, Mystic Lake, and Salt Creek 
areas. Based on our estimate of the extent of the PQP lands together 
with the additional lands (i.e., Additional Reserve Lands) of 
conservation proposed by the MSHCP, only a small portion of essential 
habitat occurs outside of our estimate of the Conservation Reserve 
Design for the MSHCP, as summarized in Table 9-2 of the MSHCP. These 
acres are essential because they provide for the hydrological processes 
affecting its wetland habitat. However, the MSHCP ``will maintain 
alluvial processes (floodplain hydrology and flooding) upon which this 
species depends'' and commits to not altering adversely existing runoff 
from adjacent lands (see Section 6.1.4 of the MSHCP). As stated in 
Table 9-2 of the Western MSHCP: ``Conservation for this species will be 
achieved by inclusion of at least 6,900 acres of suitable Conserved 
Habitat and the locality at Alberhill Creek near Lake Elsinore and the 
three core localities (Mystic Lake, the San Jacinto River and the upper 
Salt Creek drainage) within large blocks of Habitat in the MSHCP 
Conservation Area. In addition, implementation of Objective 3 for this 
species will provide new data to guide Reserve Assembly, management and 
monitoring. Implementation of Objectives 4 and 5 for this species will 
maintain alluvial processes (floodplain hydrology and flooding) upon 
which this species depends.'' Under the MSHCP, Reserve Managers are 
also responsible for preventing alteration of hydrology and floodplain 
dynamics, farming, fire, and fire suppression activities, off-road 
vehicle use, and competition from non-native plant species (Dudek and 
Associates 2003).
    The remaining occurrences of Atriplex coronata var. notatior are 
located on private lands. The MSHCP provides for the conservation of 
most of the occurrences within all 4 occurrence complexes. Under the 
MSHCP, the species is anticipated to persist within 80 percent of its 
modeled habitat (Service 2004).
    In 2004, the Service completed a Biological and Conference Opinion, 
in accordance with section 7 of the Act, regarding the issuance of an 
incidental take permit for implementation of the Western Riverside 
County MSHCP pursuant to section 10(a)(1)(B) of the Act (Service 2004). 
The Service concluded that the MSHCP would not jeopardize the continued 
existence of Atriplex coronata var. notatior (Service 2004). Several 
covered activities discussed under the MSHCP have the potential to 
impact populations within these conserved areas, including the San 
Jacinto River Flood Control Project and the State Route 79 Realignment 
Project. These projects will require additional consultation with our 
agency under section 7 of the Act (Dudek and Associates 2003). While 
the outcome of future section 7 consultations is not known, we 
anticipate that the application of the jeopardy standard will ensure 
that actions funded, authorized, or carried out by a Federal agency 
will not jeopardize the continued existence of A. coronata var. 
notatior. Thus, the exclusion of the essential habitats from critical 
habitat under section 4(b)(2) of the Act will not result in the 
extinction of the species.
    The following discussion presents our rationale for excluding from 
critical habitat designation the areas of essential habitat for 
Atriplex coronata var. notatior within the Western Riverside MSHCP.
(1) Benefits of Inclusion
    The principal benefit of any designated critical habitat is that 
federally funded or authorized activities in such habitat require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. Where HCPs are in place, our experience indicates 
that this benefit is small or nonexistent. Currently approved and 
permitted HCPs are designed to ensure the long-term survival of covered 
species within the plan area. In an approved HCP, lands we ordinarily 
would define as critical habitat for covered species will normally be 
protected in reserves and other conservation lands by the terms of the 
HCP and its IA. These HCPs and IAs include management measures and 
protections for conservation lands designed to protect, restore, and 
enhance their value as habitat for covered species, and thus provide 
benefits well in excess of those that would result from a critical 
habitat designation. In the instance of the Western Riverside MSHCP, 
Atriplex coronata var. notatior is a covered species. The MSHCP 
establishes a multi-species conservation program to minimize and 
mitigate the expected loss of habitat values and the incidental take of 
``covered species.'' The intent of the MSHCP is to minimize incidental 
take of these species in the Plan Area and to provide avoidance, 
minimization, and mitigation measures for the impacts of proposed 
activities on covered species and their habitats. We do not believe 
that designation of MSHCP-covered lands as critical habitat will 
appreciably benefit A. coronata var. notatior beyond the protection 
already afforded the species under the Act. The Service, in its 2004 
Biological and Conference Opinion, concluded that the MSHCP would not 
jeopardize the continued existence of A. coronata var. notatior 
(Service 2004).
(2) Benefits of Exclusion
    The benefits of excluding lands within HCPs from critical habitat 
designation include carrying out the assurances provided by the Service 
to landowners, communities, and counties in return for their voluntary 
adoption of the HCP, including relieving them of the additional 
regulatory burden that might be imposed by critical habitat. Many HCPs, 
particularly large regional HCPs take many years to develop and, upon 
completion, become regional conservation plans that are consistent with 
the recovery objectives for listed species that are covered within the 
plan area. Additionally, many of these HCPs provide conservation 
benefits to unlisted, sensitive species. Imposing an additional 
regulatory review after an HCP is completed solely as a result of the 
designation of critical habitat may undermine conservation efforts and 
partnerships in many areas. In fact, it could result in the loss of 
species' benefits if participants abandon the voluntary HCP process 
because it may result in additional regulations requiring more of them 
than other parties who have not voluntarily participated in species 
conservation. Designation of critical habitat within the boundaries of 
approved HCPs could be viewed as a disincentive to those entities 
currently developing HCPs or contemplating them in the future.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP participants including States, counties, 
local jurisdictions, conservation organizations, and private 
landowners, which together can implement conservation actions that we 
would be unable to accomplish otherwise. If lands within HCP plan areas 
are designated as

[[Page 59854]]

critical habitat, it would likely have a negative effect on our ability 
to establish new partnerships to develop HCPs, particularly large, 
regional HCPs that involve numerous participants and address landscape-
level conservation of species and habitats. By preemptively excluding 
these lands, we preserve our current partnerships and encourage 
additional conservation actions in the future.
    Furthermore, an HCP application must itself be consulted upon. 
While this consultation will not look specifically at the issue of 
adverse modification to critical habitat, unless critical habitat has 
already been designated within the proposed plan area, it will 
determine if the HCP jeopardizes the species in the plan area. The 
jeopardy analysis is similar to the analysis of adverse modification to 
critical habitat. In addition, Federal actions not covered by the HCP 
in areas occupied by listed species would still require consultation 
under section 7 of the Act. HCPs typically provide for greater 
conservation benefits to a covered species than section 7 consultations 
because HCPs and assure the long-term protection and management of a 
covered species and its habitat, and funding for such management 
through the standards found in the 5 Point Policy for HCPs (64 FR 
35242). Such assurances are typically not provided by section 7 
consultations which, in accordance with the Provisions of the Act, are 
limited to requiring that the specific action being consulted upon not 
jeopardize the continued existence of the species. Thus, a consultation 
typically does not accord the lands it covers the extensive benefits an 
HCP provides. The development and implementation of HCPs provide other 
important conservation benefits, including the development of 
biological information to guide the conservation efforts and assist in 
species conservation, and the creation of innovative solutions to 
conserve species while allowing for development.
    The Western Riverside MSHCP seeks to accomplish the goals of 
protecting, restoring, monitoring, managing, and enhancing the habitat 
to benefit the conservation of Atriplex coronata var. notatior through 
the implementation of specific conservation objectives. Excluding non-
Federal lands within the MSHCP from the proposed critical habitat will 
provide benefits, as follows: (1) Exclusion of the lands from the final 
designation will allow us to continue working with the participants in 
a spirit of cooperation and partnership; (2) other jurisdictions, 
private landowners, and other entities will see the benefit of working 
cooperatively with us to develop HCPs, which will provide the basis for 
future opportunities to conserve species and their essential habitat.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    The Western Riverside MSHCP includes Atriplex coronata var. 
notatior as a covered species. The educational benefits of critical 
habitat, including informing the public of areas that are essential for 
the long-term survival and conservation of the species is still 
accomplished from material provided on our Web site and through public 
notice and comment procedures required to establish the Western 
Riverside MSHCP. We have also received input from the public through 
the public participation that occurs in the development of the Western 
Riverside MSHCP. For these reasons, we believe proposing critical 
habitat has little additional benefit in areas covered by the Western 
Riverside MSHCP. Therefore, we are excluding these lands from critical 
habitat. We do not believe that this exclusion would result in the 
extinction of the species because the essential habitat will be 
conserved in accordance with the provisions of the Western Riverside 
MSHCP.

Economic Analysis

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

Peer Review

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

Public Hearings

    The Act provides for one or more public hearings on this 
determination, if requested. Requests must be received within 45 days 
of the date of publication of the proposal in the Federal Register. 
Such requests must be made in writing and be addressed to the Field 
Supervisor (see ADDRESSES section). We will schedule public hearings on 
this determination, if any are requested, and announce the dates, 
times, and places of those hearings in the Federal Register and local 
newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations 
that are easy to understand. We invite your comments on how to make 
this proposed rule easier to understand, including answers to questions 
such as the following: (1) Are the requirements in the proposed rule 
clearly stated? (2) Does the proposed rule contain technical jargon 
that interferes with the clarity? (3) Does the format of the proposed 
rule (grouping and order of the sections, use of headings, 
paragraphing, and so forth) aid or reduce its clarity? (4) Is the 
description of the proposed rule in the SUPPLEMENTARY INFORMATION 
section of the preamble helpful in understanding the decision? (5) What 
else could we do to make this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW., Washington, DC 20240. You 
may e-mail your comments to this address: <a href="/cdn-cgi/l/email-protection#54112c273137143d3b277a303b3d7a333b22"><span class="__cf_email__" data-cfemail="5c19242f393f1c35332f72383335723b332a">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is 
significant in that it may raise novel legal and policy issues, but it 
is not anticipated to have an annual effect on the economy of $100 
million or more or affect the economy in a material way. Due to the 
tight timeline for publication in the Federal Register, the Office of 
Management and Budget (OMB) has not formally reviewed this rule. We are 
preparing a

[[Page 59855]]

draft economic analysis of this proposed action. We will use this 
analysis to meet the requirement of section 4(b)(2) of the Act to 
determine the economic consequences of designating the specific areas 
as critical habitat. This economic analysis also will be used to 
determine compliance with Executive Order 12866, Regulatory Flexibility 
Act, Small Business Regulatory Enforcement Fairness Act, and Executive 
Order 12630.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. The SBREFA amended 
the Regulatory Flexibility Act (RFA) to require Federal agencies to 
provide a statement of the factual basis for certifying that the rule 
will not have a significant economic impact on a substantial number of 
small entities.
    At this time, we lack the available economic information necessary 
to provide an adequate factual basis for the required RFA finding. 
Therefore, the RFA finding is deferred until completion of the draft 
economic analysis prepared pursuant to section 4(b)(2) of the Act and 
E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, we will publish a notice of availability of the 
draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 60 
days. We will include with the notice of availability, as appropriate, 
an initial regulatory flexibility analysis or a certification that the 
rule will not have a significant economic impact on a substantial 
number of small entities accompanied by the factual basis for that 
determination. We have concluded that deferring the RFA finding until 
completion of the draft economic analysis is necessary to meet the 
purposes and requirements of the RFA. Deferring the RFA finding in this 
manner will ensure that we make a sufficiently informed determination 
based on adequate economic information and provides the necessary 
opportunity for public comment.

Executive Order 13211

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

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. (At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement.) ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    Critical habitat, if designated, does not impose a legally binding 
duty on non-Federal government entities or private parties. Under the 
Act, the only regulatory effect is that Federal agencies must ensure 
that their actions do not destroy or adversely modify critical habitat 
under section 7. While non-Federal entities who 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, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because no areas are proposed for critical 
habitat. We will, however, further evaluate this issue as we conduct 
our economic analysis and revise this assessment if appropriate.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), this rule is not anticipated to have significant takings 
implications. A takings implication assessment is not required. As 
discussed above, the designation of critical habitat affects only 
Federal actions. Although private parties that receive Federal funding, 
assistance, or require approval or authorization from a Federal agency 
for an action may be indirectly impacted by the designation of critical 
habitat, the legally binding duty to avoid destruction or adverse 
modification of critical habitat rests squarely on the Federal agency. 
Due to current public knowledge of the species' protections we do not 
anticipate that property values will be affected by the critical 
habitat designation. However, we have not yet completed the economic 
analysis for this proposed rule. Once the

[[Page 59856]]

economic analysis is available, we will review and revise this 
preliminary assessment as warranted.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. In keeping with DOI policy, we requested information from, 
and coordinated development of, this proposal with appropriate State 
resource agencies in California. The exclusion of critical habitat in 
areas currently occupied by Atriplex coronata var. notatior imposes no 
additional restrictions to those currently in place and, therefore, has 
no incremental impact on State and local governments and their 
activities. The exclusion may have some benefit to these governments in 
that the areas essential to the conservation of the species are more 
clearly defined, and the primary constituent elements of the habitat 
necessary to the survival of the species are specifically identified. 
While making this definition and identification does not alter where 
and what federally sponsored activities may occur, it may assist these 
local governments in long-range planning (rather than waiting for case-
by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We have excluded critical habitat in accordance with the 
provisions of the Endangered Species Act. This proposal uses standard 
property descriptions and identifies the primary constituent elements 
within the designated areas to assist the public in understanding the 
habitat needs of Atriplex coronata var. notatior.

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

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

National Environmental Policy Act

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

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of 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. We have determined that 
there are no Tribal lands essential for the conservation of Atriplex 
coronata var. notatior.

References Cited

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

Author(s)

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

List of Subjects in 50 CFR Part 17

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

Proposed Regulation Promulgation

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

PART 17--[AMENDED]

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

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

    2. In Sec.  17.12(h) revise the entry for ``Atriplex coronata var. 
notatior'' under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic  range           Family            Status         When       Critical     Special
         Scientific name                Common name                                                                   listed      habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Atriplex coronata var. notatior..  San Jacinto Valley    U.S.A. (CA).........  Chenopodiaceae--Goos  E                     650     17.97(b)           NA
                                    crownscale.                                 efoot Family.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

* * * * *
    3. Amend part 17 by adding a new Sec.  17.97 to read as follows:


Sec.  17.97  Species for which critical habitat is prudent but not 
designated.

    This section includes animal and plant species for which we have 
determined critical habitat to be prudent, but for which we did not 
designate critical habitat under the Act for policy and statutory 
reasons. We identify these species, their primary constituent elements, 
and the specific habitat areas essential to their conservation to 
further public awareness and conservation efforts.
    (a) [Reserved.]
    (b) Plants. This paragraph (b) identifies the primary constituent 
elements and specific habitat areas essential to the conservation of 
plant species for which we determined critical habitat to be prudent 
but did not designate for policy and statutory reasons. We will list 
these species in the same order as they appear in Sec.  17.12(h).

[[Page 59857]]

    (1) Family Chenopodiaceae: Atriplex coronata var. notatior (San 
Jacinto Valley crownscale).
    (i) Lands determined to be essential to the conservation of 
Atriplex coronata var. notatior are depicted for Riverside County, 
California, on the map in paragraph (b)(1)(iii)(B) of this section.
    (ii) The primary constituent elements of critical habitat for 
Atriplex coronata var. notatior are:
    (A) Seasonal wetland habitats, including floodplains and vernal 
pools, and the natural hydrologic processes upon which these habitats 
depend.
    (B) Vegetation communities, including alkali playa, alkali scrub, 
and alkali grassland habitats, within which the taxon is known to 
occur.
    (C) Slow-draining alkali soils with a hard pan layer that provides 
for a perched water table, including the Willows, Domino, Traver, 
Waukena, and Chino Soils Series.
    (iii) Lands that have been determined to be essential to the 
conservation of Atriplex coronata var. notatior and that have been 
excluded from critical habitat designation pursuant to section 4(b)(2) 
of the Act are described below.
    (A) All essential lands within the boundaries of the Western 
Riverside Multiple Species Habitat Conservation Plan. This plan may be 
obtained by going to the Riverside County Integrated Project website 
(http://www.rcip.org/conservation.htm).
    (B) Note: Map of essential habitat for Atriplex coronata var. 
notatior follows:
BILLING CODE 4310-55-U

[[Page 59858]]

[GRAPHIC] [TIFF OMITTED] TP06OC04.015

BILLING CODE 4310-55-C

[[Page 59859]]

    (2) [Reserved.]

    Dated: September 30, 2004.
Julie McDonald,
Acting Deputy Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 04-22395 Filed 10-5-04; 8:45 am]
BILLING CODE 4310-55-P


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