59844 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

List of Subjects in 48 CFR Parts 1511 

and 1552 

Environmental protection, 

Government procurement.

The Withdrawal 

In consideration of the foregoing, the 

Notice of Proposed Rulemaking, OARM 

Docket No. 2002–0001, as published in 

the Federal Register on January 22, 

2003 (68 FR 51737), is hereby 

withdrawn.

Dated: September 30, 2004. 

Judy S. Davis, 

Director, Office of Acquisition Management.

[FR Doc. 04–22483 Filed 10–5–04; 8:45 am] 

BILLING CODE 6560–50–P

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.

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 

FW1CFWO_SJVC@fws.gov. 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 FW1CFWO_SJVC@fws.gov

in ASCII file format and avoid the use 

of special characters or any form of 

encryption. Please also include ‘‘Attn: 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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 

FW1CFWO_SJVC@fws.gov 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 judiciallyimposed 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 

59846 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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 

59848 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 peerreviewed 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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 nonagricultural 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 

59850 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 nonagriculture 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 dryland 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 humanassociated 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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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; 

59852 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

(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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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 

59854 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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: 

Exsec@ios.doi.gov. 

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 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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 nonFederal 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 

59856 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

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 § 17.12(h) revise the entry for 

‘‘Atriplex coronata var. notatior’’ under 

‘‘FLOWERING PLANTS’’ to read as 

follows:

§ 17.12 Endangered and threatened plants.

* * * * *

(h) * * *

Species Historic

range Family Status Whenlisted 

Critical

habitat 

Special

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Atriplex coronata var. 

notatior.

San Jacinto Valley 

crownscale.

U.S.A. (CA) .............. Chenopodiaceae—

Goosefoot Family.

E 650 17.97(b) NA 

* * * * * * * 

* * * * *

3. Amend part 17 by adding a new 

§ 17.97 to read as follows:

§ 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 § 17.12(h). 

Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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

59858 Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 

BILLING CODE 4310–55–C


EP06OC04.015</GPH>
Federal Register / Vol. 69, No. 193 / Wednesday, October 6, 2004 / Proposed Rules 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

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT84 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for the Arkansas River 

Basin Population of the Arkansas 

River Shiner

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

designate critical habitat for the 

Arkansas River Basin population of the 

Arkansas River Shiner (Notropis girardi) 

pursuant to the Endangered Species Act 

of 1973, as amended (Act). Limited new 

information on the biological needs of 

the Arkansas River Shiner has become 

available since critical habitat for the 

Arkansas River Shiner was published on 

April 4, 2001 (66 FR 18002). However, 

this rule is being proposed pursuant to 

a court order issued in September 2003, 

vacating critical habitat established for 

the Arkansas River Basin population of 

the Arkansas River Shiner and 

remanding the previous designation of 

critical habitat for preparation of a new 

analysis of the economic and other 

effects of the designation (New Mexico 

Cattle Growers Association et al. v. 

Norton, et al. Civ. No. 02–0461). 

We propose to designate as critical 

habitat a total of approximately 2,002 

kilometers (1,244 miles) of linear 

distance of rivers, including 91.4 meters 

(300 feet) of adjacent riparian areas 

measured laterally from each bank. This 

distance includes areas that we are 

proposing to exclude which is described 

further in the proposed rule below. The 

areas that we have determined to be 

essential to the conservation of the 

Arkansas River Shiner include portions 

of the Canadian River (often referred to 

as the South Canadian River) in New 

Mexico, Texas, and Oklahoma, the 

Beaver/North Canadian River of 

Oklahoma, the Cimarron River in 

Kansas and Oklahoma, and the 

Arkansas River in Arkansas, Kansas, 

and Oklahoma. 

In developing this proposal, we 

evaluated those lands determined to be 

essential to the conservation of the 

Arkansas River Shiner to ascertain if 

any specific areas would be appropriate 

for exclusion from the final critical 

habitat designation pursuant to section 

4(b)(2) of the Act. On the basis of our 

preliminary evaluation, we believe that 

the benefits of excluding the Beaver/

North Canadian River of Oklahoma 

(Unit 2) and the Arkansas River in 

Arkansas, Kansas, and Oklahoma (Unit 

4), from the final critical habitat for the 

Arkansas River Shiner outweigh the 

benefits of their inclusion. As noted in 

the ‘‘Public Comments Solicited’’

section below, we are seeking comments 

on our prelimary 4(b)(2) analysis that is 

contained within this rule. 

If this proposal is made final, section 

7 of the Act would prohibit destruction 

or adverse modification of critical 

habitat by any activity authorized, 

funded, or carried out by any Federal 

agency. As required by section 4 of the 

Act, we will consider the economic and 

other relevant impacts prior to making 

a final decision on what areas to 

designate as critical habitat. 

We hereby solicit data and comments 

from the public on all aspects of this 

proposal, including data on economic 

and other impacts of the proposed 

designation. We may revise this 

proposal prior to final designation to 

incorporate or address new information 

received during public comment 

periods.

DATES: We will accept comments until 

April 30, 2005. The Act provides for a 

public hearing on this proposal, if 

requested. Given the high likelihood of 

such requests, we intend to hold three 

public hearings, one in central 

Oklahoma, one in southwest Kansas and 

one in Texas. The specific times, dates, 

and locations for those hearings will be 

announced in the Federal Register in 

the coming months.

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may submit written comments 

and information to the Field Supervisor, 

Oklahoma Ecological Services Office, 

U.S. Fish and Wildlife Service, 222 

South Houston, Tulsa, Oklahoma 

74127–8909. 

2. You may hand-deliver written 

comments and information to our 

Oklahoma Office, at the above address, 

or fax your comments to 918/581–7467. 

3. You may send your comments by 

electronic mail (e-mail) to 

r2arshinerch@fws.gov. For directions on 

how to submit electronic filing of 

comments, see the ‘‘Public Comments 

Solicited’’ section. 

All comments and materials received, 

as well as supporting documentation 

used in preparation of this proposed 

rule, will be available for public 

inspection, by appointment, during 

normal business hours at the above 

address.

FOR FURTHER INFORMATION CONTACT: Jerry 

Brabander, Field Supervisor, Oklahoma 

Office (telephone 918/581–7458; 

facsimile 918/581–7467).

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, we solicit comments or 

suggestions from the public, other 

concerned governmental agencies, the 

scientific community, industry, or any 

other interested party concerning this 

proposed rule. On the basis of public 

comment, during the development of 

the final rule we may find that areas 

proposed are not essential, are 

appropriate for exclusion under section 

4(b)(2), or not appropriate for exclusion; 

in all of these cases, this information 

would be incorporated into the final 

designation. We particularly seek 

comments concerning:

(1) The reasons why any areas included in 

this proposal 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 due to the designation; 

(2) Specific information on the amount and 

distribution of Arkansas River Shiner habitat, 

and which habitat or habitat components are 

essential to the conservation of this species 

and why; 

(3) Information on the status, viability, and 

distribution of the Arkansas River Shiner in 

the Cimarron River in Kansas and Oklahoma; 

(4) Comments or information related to our 

determination to include the adjacent 

riparian area (i.e., 300-feet on either side of 

the stream bank) as proposed critical habitat; 

(5) Land use designations and current or 

planned activities in or adjacent to the areas 

proposed and their possible impacts on 

proposed critical habitat; 

(6) Any foreseeable economic, national 

security, or other potential impacts resulting 

from the proposed designation, particularly 

any impacts on small entities; 

(7) Two areas previously designated as 

critical habitat (the Beaver/North Canadian 

River of Oklahoma (Unit 2) and portions of 

the Arkansas River in Arkansas, Kansas, and 

Oklahoma (Unit 4), although still considered 

essential for the conservation of the Arkansas 

River Shiner, are currently proposed for 

exclusion from critical habitat because we 

believe the benefit of excluding these areas 

outweighs the benefit of including them. We 

specifically solicit comment on the inclusion