60110 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

III. Transcripts

A transcript of the proceedings from 

these public meetings, as well as all 

information and data submitted 

voluntarily to FDA during the public 

meetings, will become part of the 

administrative record and will be 

available to the public under 21 CFR 

20.111 from FDA’s Division of Dockets 

Management (HFA–305), 5630 Fishers 

Lane, rm. 1061, Rockville, MD 20852 at 

a cost of 10 cents per page. Summaries 

of the public meetings will also be 

available for public examination at 

FDA’s Division of Dockets Management 

between 9 a.m. and 4 p.m., Monday 

through Friday.

Dated: September 29, 2004.

Jeffrey Shuren,

Assistant Commissioner for Policy.

[FR Doc. 04–22476 Filed 10–4–04; 2:49 pm]

BILLING CODE 4160–01–S

ENVIRONMENTAL PROTECTION 

AGENCY 

40 CFR Part 271 

[FRL–7825–6] 

Delaware: Final Authorization of State 

Hazardous Waste Management 

Program Revisions

AGENCY: Environmental Protection 

Agency (EPA).

ACTION: Proposed rule.

SUMMARY: Delaware has applied to EPA 

for final authorization of revisions to its 

hazardous waste program under the 

Resource Conservation and Recovery 

Act (RCRA). EPA proposes to grant final 

authorization to Delaware. In the ‘‘Rules 

and Regulations’’ section of this Federal 

Register, EPA is authorizing the 

revisions by an immediate final rule. 

EPA did not make a proposal prior to 

the immediate final rule because we 

believe this action is not controversial 

and do not expect comments that 

oppose it. We have explained the 

reasons for this authorization in the 

preamble to the immediate final rule. 

Unless we receive written comments 

that oppose this authorization during 

the comment period, the immediate 

final rule will become effective on the 

date it establishes, and we will not take 

further action on this proposal. 

However, if we receive comments that 

oppose this action, or portions thereof, 

we will withdraw the relevant portions 

of the immediate final rule, and they 

will not take effect. We will then 

respond to public comments in a later 

final rule based on this proposal. You 

may not have another opportunity for 

comment. If you want to comment on 

this action, you must do so at this time.

DATES: Send your written comments by 

November 8, 2004.

ADDRESSES: Submit your comments, 

identified by FRL–7825–5 by one of the 

following methods: 

1. Federal eRulemaking Portal:

http://www.regulations.gov. Follow the 

on-line instructions for submitting 

comments. 

2. E-mail: 

ellerbe.lillie@epamail.epa.gov.

3. Mail: Lillie Ellerbe, Mailcode 

3WC21, RCRA State Programs Branch, 

U.S. EPA Region III, 1650 Arch Street, 

Philadelphia, PA 19103–2029. 

4. Hand Delivery: At the previouslylisted EPA Region III address. Such 

deliveries are only accepted during 

normal hours of operation, and special 

arrangements should be made for 

deliveries of boxed information. 

You may inspect and copy Delaware’s 

application from 8 a.m. to 4:30 p.m., 

Monday through Friday at the following 

addresses: Delaware Department of 

Natural Resources & Environmental 

Control, Division of Air & Waste 

Management, Solid and Hazardous 

Waste Management Branch, 89 Kings 

Highway, Dover, DE 19901, Phone 

number (302) 739–3689, attn: Karen 

J’Anthony, and EPA Region III, Library, 

2nd Floor, 1650 Arch Street, 

Philadelphia, PA 19103–2029, Phone 

number: (215) 814–5254. 

Instructions: Direct your comments to 

FRL–7825–5. EPA’s policy is that all 

comments received will be included in 

the public file without change, 

including any personal information 

provided, unless the comment includes 

information claimed to be Confidential 

Business Information (CBI) or other 

information whose disclosure is 

restricted by statute. Do not submit 

information that you consider to be CBI 

or otherwise protected through http://

www.regulations.gov or e-mail. The 

federal http://www.regulations.gov Web 

site is an ‘‘anonymous access’’ system, 

which means EPA will not know your 

identity or contact information unless 

you provide it in the body of your 

comment. If you send an e-mail 

comment directly to EPA without going 

through http://www.regulations.gov,

your e-mail address will be 

automatically captured and included as 

part of the comment that is placed in the 

public file and made available on the 

Internet. If you submit an electronic 

comment, EPA recommends that you 

include your name and other contact 

information in the body of your 

comment and with any disk or CD–ROM 

you submit. If EPA cannot read your 

comment due to technical difficulties 

and cannot contact you for clarification, 

EPA may not be able to consider your 

comment. Electronic files should avoid 

the use of special characters, any form 

of encryption, and be free of any defects 

or viruses.

FOR FURTHER INFORMATION CONTACT:

Lillie Ellerbe, Mailcode 3WC21, RCRA 

State Programs Branch, U.S. EPA Region 

III, 1650 Arch Street, Philadelphia, PA 

19103–2029, Phone Number: (215) 814–

5454.

SUPPLEMENTARY INFORMATION: For 

additional information, please see the 

immediate final rule published in the 

‘‘Rules and Regulations’’ section of this 

Federal Register.

Dated: September 17, 2004. 

Thomas Voltaggio, 

Acting Regional Administrator, EPA Region 

III.

[FR Doc. 04–22593 Filed 10–6–04; 8:45 am] 

BILLING CODE 6560–50–P

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018—AT86 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for Navarretia fossalis

(spreading navarretia)

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 Navarretia 

fossalis (spreading navarretia) pursuant 

to the Endangered Species Act of 1973, 

as amended (Act). We have identified 

31,086 acres (ac) (12,580 hectares (ha)) 

of habitat essential to the conservation 

of Navarretia fossalis, and propose to 

designate 4,301 ac (1,741 ha) of this 

essential habitat as critical habitat in 

San Diego and Los Angeles Counties, 

California. We have excluded 26,785 ac 

(10,839 ha) of essential habitat in 

Riverside and San Diego Counties from 

this proposed critical habitat 

designation. The excluded lands are 

located within approved and pending 

habitat conservation plans (HCPs), 

‘‘mission-critical’’ training areas on 

Department of Defense lands, and areas 

covered by Integrated Natural Resource 

Management Plans (INRMPs) on 

Department of Defense lands. In 

developing this proposal, we evaluated 

those lands determined to be essential 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60111

to the conservation of Navarretia 

fossalis to ascertain if any specific areas 

warrant non-inclusion or exclusion from 

critical habitat pursuant to sections 

4(a)(3) and 4(b)(2) of the Act. On the 

basis of our evaluation, we have 

determined that the benefits of 

excluding approved and pending HCPs 

and ‘‘mission-critical’’ training lands 

owned and managed by the Department 

of Defense from critical habitat for 

Navarretia fossalis outweighs the 

benefits of their inclusion, and have 

subsequently excluded those lands from 

this proposed designation of critical 

habitat for this species pursuant to 

section 4(b)(2) of the Act. We have also 

evaluated Integrated Natural Resource 

Management Plans (INRMP) on 

Department of Defense lands and have 

not proposed critical habitat where the 

INRMP provides a benefit to the species 

pursuant to section 4(a)(3) of the Act. 

We hereby solicit data and comments 

from the public on all aspects of this 

proposal, including data on economic 

and other impacts of the 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 

December 6, 2004. Public hearing 

requests must be received by November 

22, 2004.

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, 

Carlsbad Fish and Wildlife Office, U.S. 

Fish and Wildlife Service, 6010 Hidden 

Valley Road, Carlsbad, CA 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) 731–9618. 

3. You may send your comments by 

electronic mail (e-mail) to 

fw1cfwo_nafo@fws.gov. For directions 

on how to submit electronic filing of 

comments, see the ‘‘Public Comments 

Solicited’’ section. In the event that our 

internet connection is not functional, 

please submit your comments by the 

alternate methods mentioned above. 

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. Maps of essential habitat not 

included in the proposed critical habitat 

are available for viewing by 

appointment during regular business 

hours at the Carlsbad Fish and Wildlife 

Office (see ADDRESSES section) or on the 

Internet at http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Mr. 

Jim Bartel, Field Supervisor, Carlsbad 

Fish and Wildlife Office (telephone 

(760) 431–9440; facsimile (760) 431–

9618).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited 

It is our intent that any final action 

resulting from this proposal will be as 

accurate 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. In the development of 

our final designation, we will 

incorporate or address any new 

information received during the public 

comment periods, or from our 

evaluation of the potential economic 

impacts of this proposal. As such, we 

may revise this proposal to address new 

information and/or to either exclude 

additional areas that may warrant 

exclusion pursuant to section 4(b)(2) or 

we designate additional areas 

determined to be essential to the species 

but excluded from this proposal. We 

particularly seek comments concerning:

(1) The reasons why any areas should 

or should not be determined to be 

critical habitat as provided by section 4 

of the Act. 

(2) Specific information on the 

amount and distribution of Navarretia 

fossalis and its habitat, and which 

habitat or habitat components are 

essential to the conservation of this 

species and why; 

(3) Land use designations and current 

or planned activities in or adjacent to 

the areas proposed and their possible 

impacts on proposed critical habitat; 

(4) Any foreseeable economic or other 

potential impacts resulting from the 

proposed designation, in particular, any 

impacts on small entities and; 

(5) Whether our approach to designate 

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. 

Some of the lands we have identified 

as essential for the conservation of the 

Navarretia fossalis are not being 

proposed as critical habitat. The 

following areas essential to the 

conservation of N. fossalis are not being 

proposed as critical habitat or have been 

excluded from this proposal: lands on 

Marine Corps Air Station Miramar 

(MCAS, Miramar); ‘‘mission-critical’’

training areas on Marine Corps Base, 

Camp Pendleton (Camp Pendleton); 

areas within the San Diego Multiple 

Species Conservation Program (MSCP), 

and areas within the Western Riverside 

Multiple Species Habitat Conservation 

Plan (MSHCP). These areas have been 

excluded because they meet the 

standard for exclusion under section 

4(a)(3) of the Act, or because we believe 

the benefit of excluding these areas from 

critical habitat outweighs the benefit of 

including them pursuant to section 

4(b)(2). We specifically solicit comment 

on: (a) Whether these areas are essential; 

(b) whether these areas warrant 

exclusion; and (c) the basis for not 

designating as or excluding these areas 

from critical habitat pursuant to section 

4(a)(3) or section 4(b)(2) of the Act (see 

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

Act and Relationship to Department of 

Defense Lands sections for a detailed 

discussion). 

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_nafo@fws.gov in 

ASCII file format and avoid the use of 

special characters or any form of 

encryption. Please also include ‘‘Attn: 

RIN 1018–AT86’’ 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 e-mail address 

fw1cfwo_nafo@fws.gov will be closed 

out 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 address 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. 

60112 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

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 

It is our intent to discuss only those 

topics directly relevant to the 

identification and proposed designation 

of critical habitat for Navarretia fossalis

in this rule. For more information on 

this species, refer to the final listing rule 

published in the Federal Register on 

October 13, 1998 (63 FR 54975) and the 

Recovery Plan for the Vernal Pools of 

Southern California (Recovery Plan) 

finalized on September 3, 1998 (Service 

1998). 

Life History 

Navarretia fossalis, a member of 

Polemoniaceae (phlox family), is a low, 

mostly spreading or ascending, annual 

herb, 10 to 15 centimeters (cm) (4 to 6 

inches (in)) tall. This species grows in 

vernal pools, clay flats, irrigation 

ditches, alkali grasslands, alkali playas, 

and alkali sinks (Dudek and Associates, 

Inc. 2003; Spencer 1997). The lower 

portions of the stems are mostly 

glabrous (bare). The leaves are soft and 

finely divided, 1 to 5 cm (0.4 to 2 in) 

long, and spine-tipped when dry. The 

flowers are white to lavender white with 

linear petals and are arranged in flattopped, compact, leafy heads. The fruit 

is an ovoid, 2-chambered capsule (Day 

1993; Moran 1977). 

There are approximately 30 species in 

the genus Navarretia, several of which 

occur within the range of Navarretia 

fossalis. N. fossalis can be confused 

with, and has been misidentified as, N. 

prostrata (Moran 1977). N. fossalis is 

distinguished by its linear or narrowly 

ovate corolla lobes, erect habit, cymose 

inflorescences, the size and shape of the 

calyx, and the position of the corolla 

relative to the calyx (Day 1993; Service 

1998). Two other Navarretia taxa are 

also federally listed as endangered: N. 

leucocephala ssp. plieantha (manyflowered navarretia) and N. 

leucocephala ssp. pauciflora (fewflowered navarretia) (62 FR 33029). 

However, these two species are found in 

vernal pools in northern California. 

Distribution and Status 

Navarretia fossalis is distributed from 

northwestern Los Angeles County and 

western Riverside County, south 

through coastal San Diego County, 

California to northwestern Baja 

California, Mexico (Moran 1977; 

Oberbauer 1992). It is found at 

elevations between sea level and 4,250 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60113

feet (ft) (1,300 meters (m)) in vernal 

pools, alkali grassland, alkali playa, and 

alkali sink habitats (Day 1993; Munz 

1974; California Native Plant Society 

(CNPS) 2001; Reiser 2001; California 

Natural Diversity Data Base (CNDDB) 

2004). 

One population has been reported 

from San Luis Obispo County, however, 

the identification of this population is 

thought to be in error (pers. comm. with 

Spencer 2004). Fewer than 45 

populations exist in the United States 

(CNDDB 2004). Nearly 60 percent of the 

known populations are concentrated in 

three locations: Otay Mesa in southern 

San Diego County, along the San Jacinto 

River in western Riverside County, and 

near Hemet in Riverside County 

(Service 1998). The two largest 

populations occur in Riverside County 

and have been estimated to support 

375,000 and 100,000 individuals 

respectively within 8 ac (3 ha) of 

habitat. Most other populations contain 

fewer than 1,000 individuals and 

occupy less than 1 ac (0.5 ha) of habitat. 

We estimate that less than 300 ac (120 

ha) of habitat in the United States is 

occupied by this species (63 FR 54975). 

This estimate only quantifies the areas 

where the Navarretia fossalis is 

physically found and does not include 

the areas adjacent to the populations 

that are necessary to provide the 

hydrology that this species requires. In 

Mexico, N. fossalis is known from fewer 

than 10 populations clustered in three 

areas: along the international border, on 

the plateaus south of the Rio Guadalupe, 

and on the San Quintin coastal plain 

(Moran 1977). 

Threats 

It is estimated that greater than 90 

percent of the vernal pool habitat in 

Southern California has been converted 

as a result of past human activities 

(Bauder and McMillan 1998; KeelerWolf et al. 1998). Navarretia fossalis is 

threatened by habitat destruction and 

fragmentation 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 to remove weeds and create fire 

breaks), and competition from alien 

plant species (63 FR 54975). 

Previous Federal Action 

The final listing rule for Navarretia 

fossalis provides a description of 

previous Federal actions through 

October 13, 1998 (63 FR 54975). Efforts 

necessary for the survival and recovery 

of N. fossalis are presented in the 

Recovery Plan (Service 1998). 

At the time of listing, we concluded 

that designation of critical habitat for 

Navarretia fossalis 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 Navarretia fossalis (CBD, et 

al. v. Norton, No. 01–CV–2101 (S.D. 

Cal.)). A second lawsuit asserting the 

same claim was filed against the DOI 

and us 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 a remand of the 

critical habitat determinations to us 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 N. 

fossalis, if prudent, on or before January 

30, 2004. In a motion to modify the July 

1, 2002 order, the DOI and we requested 

that the due date for the proposed rule 

for N. fossalis be extended until October 

1, 2004. This motion was granted on 

September 9, 2003. This proposed rule 

complies with the court’s ruling. 

Critical Habitat

Section 3(5)(A) of the Act defines 

critical habitat as: (i) The specific areas 

within the geographic area occupied by 

a species, at the time it is listed in 

accordance with the provisions of 

section 4 of [the] Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed in accordance with the 

provisions of section 4 of [the] Act, 

upon a determination that such areas 

are essential for the conservation of the 

species (Endangered Species Act (Act) 

1973 (as amended)). ‘‘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 (Act 1973). 

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 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 

60114 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

Navarretia fossalis. 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, 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 use the best scientific data 

available in determining areas that are 

essential to the conservation of 

Navarretia fossalis. The Recovery Plan 

for Vernal Pools of Southern California 

(Recovery Plan) outlines areas essential 

to the conservation of seven species, 

including Navarretia fossalis (as well as 

San Diego fairy shrimp (Branchinecta 

sandiegonensis), Riverside fairy shrimp 

(Streptocephalus woottoni), Eryngium 

arstulatum var. parishii (San Diego 

button-celery), Pogogyne nudiuscula

(Otay mesa mint), Pogogyne abramsii

(San Diego mesa mint), Orcuttia 

californica (California Orcutt grass)) 

(Service 1998). The Recovery Plan also 

outlines steps necessary to stabilize and 

recover these species to the point where 

protection under the Act is no longer 

required. The Recovery Plan uses 

Management Areas to define regional 

conservation needs. We have used these 

Management Areas to aid in identifying 

habitat essential to the conservation of 

the species. The areas essential for 

conservation of this species are detailed 

in appendices F and G of the Recovery 

Plan. This and additional information 

gathered after the completion of the 

Recovery Plan, are the basis for 

identifying the essential habitat for 

Navarretia fossalis. 

To map and define the areas listed in 

the Recovery Plan we used research and 

survey observations published in peerreviewed articles, regional Geographic 

Information System (GIS) vegetation, 

soil, and species coverages, and data 

compiled in the CNDDB. Information 

about Navarretia fossalis was mapped 

using GIS and refined indicating the 

essential habitat associated with each of 

the occurrences. Areas not containing 

the primary constituent elements were 

not included in the boundaries of 

proposed critical habitat, whenever 

possible. After creating a 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 sections 

4(a)(3) and 4(b)(2) of the Act, and any 

areas that should not be included or 

excluded from proposed critical habitat 

were identified. 

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 

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 or 

protection. These include, but are not 

limited to: Space for individual and 

population growth and for normal 

behavior; water, air, light, minerals, or 

other nutritional or physiological 

requirements; space for growth, 

development and reproduction, 

including the space necessary for 

pollinators to live; 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 Navarretia fossalis habitat are 

based on specific components that 

provide for the essential biological 

needs of the species as described below. 

Individual and Population Growth, 

Including Sites for Germination, 

Pollination, Reproduction, Pollen and 

Seed Dispersal, and Seed Dormancy 

Navarretia fossalis is primarily 

associated with vernal pools (Day 1993; 

Service 1998) at elevations between sea 

level and 4,250 ft (1,300 m), and on flat 

to gently sloping terrain. N. fossalis

occurs in vernal pools in alkali 

grassland habitat along the San Jacinto 

River in Riverside County (Bramlet 

1993). The species also occasionally 

occurs in ditches and other artificial 

depressions in degraded vernal pool 

habitat (Moran 1977). 

Areas That Provide Basic Requirements 

for Growth, Such as Water, Light, and 

Minerals 

Navarretia fossalis requires areas that 

are ephemerally wet in the winter and 

spring months and dry in the summer 

and fall months. This type of ephemeral 

habitat does not allow either upland 

plants that live in a dry environment 

year round or wetland plants that 

require year round moisture to become 

established (Keeler-Wolf et al. 1998). 

These habitats then allow for 

specialized plants, such as the N. 

fossalis, to benefit from the exclusion of 

strictly upland and wetland plants. 

Areas That Support Populations of 

Pollinators and Seed Dispersers 

Navarretia fossalis flowers from May 

through June. This species has evolved 

mechanisms to self-pollinate (Spencer 

1997). The fruit of this species consists 

of indehiscent (i.e., not opening 

spontaneously at maturity to release 

seeds) capsules 2 to 3 millimeters long 

containing 5 to 25 seeds. The seeds 

develop a sticky, slimy coating when 

wet, which may retain moisture and aid 

in germination (Moran 1977). After 

fruiting, the species dries out and loses 

its color rapidly, and can be difficult to 

detect late in the dry season or in dry 

years. The number of individuals of N. 

fossalis at a given population site varies 

annually in response to the timing and 

amount of rainfall and temperature 

(Service 1998). 

Sufficient studies to reveal possible 

pollinators of Navarretia fossalis have 

not yet been conducted. Seeds of this 

plant are likely dispersed locally by the 

flow of water throughout the vernal pool 

or alkali wetlands in which this plant 

occurs. More distant dispersal is most 

likely accomplished by the spiney 

flowerheads clinging to the fur of larger 

mammals or via mud containing seeds 

stuck to birds that visit these wetlands 

(pers. comm. with E. Bauder 2004)

Habitats That Are Representative of the 

Historic Geographical and Ecological 

Distribution of the Species 

The distribution of Navarretia fossalis

ranges from northwestern Los Angeles 

County and western Riverside County, 

south through coastal San Diego County, 

California to northwestern Baja 

California, Mexico (Day 1993; Munz 

1974; Reiser 2001, CNPS 2001; CNDDB 

2003). One population has been 

reported from San Luis Obispo County, 

however, the identification of this 

population is thought to be in error 

(pers. comm. with Spencer 2004). Fewer 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60115

than 45 populations exist in the United 

States (CNDDB 2004). Nearly 60 percent 

of the known populations are 

concentrated in three locations: Otay 

Mesa in southern San Diego County, 

along the San Jacinto River in western 

Riverside County, and near Hemet in 

Riverside County (Service 1998). In 

Mexico, N. fossalis is known from fewer 

than 10 populations clustered in three 

areas: Along the international border, on 

the plateaus south of the Rio Guadalupe, 

and on the San Quintin coastal plain 

(Moran 1977). 

Pursuant to our regulations, we are 

required to identify the primary 

constituent elements essential to the 

conservation of Navarretia fossalis, 

together with a description of proposed 

critical habitat. In identifying primary 

constituent elements, we used the best 

available scientific data. The physical 

ranges described in the primary 

constituent elements may not capture 

all of the variability that is inherent in 

natural systems that support N. fossalis. 

The primary constituent elements 

determined essential to the conservation 

of N. fossalis are: 

(1) Vernal pool, alkali grassland, 

alkali playa, or alkali sink habitats, at 

elevations between sea level and 4,250 

ft (1,300 m), and on flat to gently 

sloping terrain. 

(2) Clay soils that retain water for 

sufficient amounts of time, especially in 

the winter and spring months, to 

support vernal pool, alkali grassland, 

alkali playa, or alkali sink habitats; and 

(3) Watershed area immediately 

surrounding vernal pool, alkali 

grassland, alkali playa, or alkali sink 

habitats with hydrology necessary to 

maintain these specialized habitats. 

Description of Essential Habitat 

The majority of extant populations of 

Navarretia fossalis exist in the United 

States (CNDDB 2004), and are 

concentrated in three locations: Otay 

Mesa in southern San Diego County, 

along the San Jacinto River in western 

Riverside County, and near Hemet in 

Riverside County (Service 1998). We 

have determined that 26 areas totaling 

approximately 31,086 ac (12,580 ha) are 

essential to the conservation of the 

species. Seventeen of these areas 

essential to the conservation of the N. 

fossalis, totaling approximately 26,785 

ac (10,839 ha), are not included in 

(pursuant to section 4(a)(3)) or are 

excluded from (pursuant to section 

4(b)(2)) proposed critical habitat: Lands 

on Marine Corps Air Station Miramar 

(MCAS, Miramar); ‘‘mission-critical’’

training areas on Marine Corps Base, 

Camp Pendleton (Camp Pendleton); 

areas within approved subareas of San 

Diego Multiple Species Conservation 

Program (MSCP); and areas within the 

approved Western Riverside Multiple 

Species Habitat Conservation Plan 

(MSHCP). Where appropriate, these 

areas are described briefly in the unit 

descriptions in the Proposed Critical 

Habitat Designation section. They are 

also shown on the maps in the Proposed 

Regulation Promulgation section. 

Military lands not included in the 

proposal pursuant to section 4(a)(3) are 

shown on the maps for information 

purposes only. 

All areas of essential habitat for N. 

fossalis in the Western Riverside County 

Management Area occur within the 

Western Riverside MSHCP area, and, 

therefore, have been excluded from 

proposed critical habitat pursuant to 

section 4(b)(2) of the Act. These six 

areas are in the vicinity of Perris, 

Hemet, Lake Elsinore, and Temecula. 

The six areas are shown on a map in the 

Proposed Regulation Promulgation 

section. 

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. Many of 

the sites where Navarretia fossalis occur 

require special management and 

protection. Habitat destruction and loss 

is the greatest threat to this species 

(CNDDB 2004), followed by disruption 

of natural hydrologic regimes that 

support populations of N. fossalis. 

Projects that occur adjacent to or distant 

from the location of a population of N. 

fossalis can alter the hydrology and 

thereby impact the fitness of the 

population (Service 1998). In some 

locations encroachment of exotic plants 

pose a threat to N. fossalis; special 

management is needed to limit this 

threat (Bramlet 1996; Service 1998). 

Proposed Critical Habitat Designation 

Proposed critical habitat includes 

Navarretia fossalis essential habitat in 

Los Angeles and San Diego Counties, 

California. Areas proposed as critical 

habitat are under Federal, State, local, 

and private ownership. The 

approximate area of proposed critical 

habitat by county and land ownership is 

shown in Table 1. Certain lands that are 

considered essential to Navarretia 

fossalis have not been included or have 

been excluded from proposed critical 

habitat based on our 4(a)(3) and 4(b)(2) 

analyses; these are summarized in Table 

2.

TABLE 1.—APPROXIMATE PROPOSED CRITICAL HABITAT AREA (ACRES(ac); HECTARES (ha) FOR Navarretia fossalis IN

CALIFORNIA BY COUNTY AND LAND OWNERSHIP. 

[Estimates reflect the total area within critical habitat unit boundaries.] 

County Federal* Private Total 

Los Angeles .............................................................................................................................................. 0 ac 

(0 ha) 

596 ac 

(241 ha) 

596 ac 

(241 ha) 

Riverside ................................................................................................................................................... (**) (**) (**) 

San Diego ................................................................................................................................................. 178 ac 

(72 ha) 

3,527 ac 

(1,427 ha) 

3,705 ac 

(1,499 ha) 

Total .......................................................................................................................................................... 178 ac 

(72 ha) 

4,123 ac 

(1,669 ha) 

4,301 ac 

(1,741 ha) 

* Federal lands include Department of Defense and other Federal land. 

** Not Applicable because all lands in Riverside County that are essential for Navaretia fossalis are excluded under 4(b)(2) of the Act. 

60116 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

TABLE 2.—APPROXIMATE ESSENTIAL HABITAT, EXCLUDED ESSENTIAL HABITAT, AND PROPOSED CRITICAL HABITAT (ACRES

(ac); HECTARES (ha) FOR Navarretia fossalis IN LOS ANGELES, SAN DIEGO, AND RIVERSIDE COUNTIES, CALIFORNIA

Total essential habitat identified for Navarretia fossalis ........................................................................................................................ 31,086 ac 

(12,580 ha) 

Essential habitat not included in the proposed critical habitat designation pursuant to section 4(a)(3) of the Act due to an INRMP 

that benefits Navarretia fossalis (Marine Corps Air Station (MCAS), Miramar).

774 ac 

(3,313 ha) 

Essential habitat excluded from the proposed critical habitat designation pursuant to section 4(b)(2) of the Act: Completed and

pending HCPs (San Diego Multiple Species Conservation Program (MSCP) and Western Riverside County Multiple Species 

Habitat Conservation Plan (MSHCP)).

25,944 ac 

(10,499 ha) 

Essential habitat excluded from the proposed critical habitat designation pursuant to section 4(b)(2) of the Act: ‘‘Mission-critical’’

Department of Defense lands (Marine Corps Base (MCB), Camp Pendleton).

67 ac 

(27 ha) 

Total essential habitat excluded from proposed critical habitat ............................................................................................................ 26,785 ac 

(10,839 ha) 

Total essential habitat proposed as critical habitat ............................................................................................................................... 4,301 ac 

(1,741 ha) 

Lands proposed as critical habitat are 

divided into five units (Units 1 through 

5) based on the Management Areas in 

which the species occurs as identified 

in the Recovery Plan (Service 1998). 

Units 1, 4, and 5 were further divided 

into subunits (1A, 1B, 4A, 4B, 4C, 4D, 

4E, 5A, 5B, 5C, 5D) based on their 

geographical location. Unit boundaries 

were delineated based on geographical 

location of vernal pools, soil types, 

associated watersheds, and local 

variation of topographic position (i.e., 

coastal mesas, inland valley). 

Descriptions of each unit and the 

reasons for proposing lands within each 

unit as critical habitat are presented 

below. 

Unit 1 (Subunits 1A, 1B): Transverse 

Range Critical Habitat Unit, Los Angeles 

County, California (596 ac (241 ha)) 

The occurrences of Navarretia fossalis

in northern Los Angeles County 

represent isolated occurrences at the 

northern most extent of the range of the 

species. Conservation biologists have 

demonstrated that populations at the 

edge of a species’ distribution can be 

important sources of genetic variation 

and represent the best opportunity for 

colonization or re-colonization (Gilpin 

and Soule ́ 1986; Lande 1999). Although 

the populations of N. fossalis in Los 

Angeles County are far removed from 

other known locations, these pools are 

possible sources of unique genetic 

information that will aid this species in 

its ability to adapt to future changes in 

the environment. Such characteristics 

may not be present in other parts of the 

species’ range (Lesica and Allendorf 

1995). For these reasons the unit is 

essential to the conservation of the 

species. 

The proposed Transverse Range 

Critical Habitat Unit encompasses 596 

ac (241 ha) within the Transverse 

Management Area as identified in the 

Recovery Plan, and includes the 

occupied vernal pools at Cruzan Mesa 

in Los Angeles County (Service 1998). 

Navarretia fossalis also occurs in a 

vernal pool in nearby Plum Canyon. 

Vernal pools at both sites are currently 

under private ownership. These vernal 

pools are the last remaining vernal pools 

in Los Angeles County. The area 

proposed as critical habitat in Unit 1 

contains the primary constituent 

elements relating to the pooling basins, 

watersheds, underling soil substrate and 

topography associated with occupied 

vernal pools at Cruzan Mesa and Plum 

Canyon in Los Angeles County. 

Unit 2: San Diego North Coastal Mesas 

Critical Habitat Unit, San Diego County, 

California (143 ac (64 ha)) 

The San Diego North Coastal Mesas 

Critical Habitat Unit encompasses 143 

ac (64 ha) within the San Diego North 

Coastal Mesas Management Area as 

identified in the Recovery Plan and 

includes occupied vernal pools on 

Camp Pendleton and one occupied pool 

complex in the City of Carlsbad (Service 

1998). Essential habitat within training 

areas defined by the Department of 

Defense as ‘‘mission critical’’ in the 

Stuart Mesa area of the Oscar One 

Training Area on Camp Pendleton have 

been excluded from the proposed 

critical habitat designation pursuant to 

section 4(b)(2) of the Act. 

Within the jurisdiction of the City of 

Carlsbad, one occupied vernal pool 

complex is located at the Poinsettia 

Lane train station. This complex is 

associated with a remnant of coastal 

terrace habitat and is considered 

essential for the conservation of the 

species in northern San Diego County. 

This pool is one of the last remaining 

coastal occurrences of Navarretia 

fossalis outside the boundaries of MCB 

Camp Pendleton. The City of Carlsbad is 

developing a subarea plan as part of the 

Draft Multiple Habitat Conservation 

Program (MHCP) in northwestern San 

Diego County. However, the Poinsettia 

Lane vernal pool complex is not 

currently covered in the City of 

Carlsbad’s draft subarea plan. The area 

being proposed as critical habitat in 

Unit 2 contains the primary constituent 

elements described above relating to the 

pooling basins, watersheds, underling 

soil substrate and topography associated 

with the Poinsettia Lane vernal pool 

complex in the City of Carlsbad. 

Unit 3: San Diego Central Coastal Mesas 

Critical Habitat Unit, San Diego County, 

California (143 ac (64 ha)) 

The San Diego Central Coast Mesas 

Critical Habitat Unit encompasses 143 

ac (64 ha) within the San Diego Central 

Coast Mesas Management Area as 

identified in the Recovery Plan (Service 

1998), and includes occupied vernal 

pools.

All four areas essential for the 

conservation of Navarretia fossalis in 

the Central Coast Mesas Management 

Area are not included in or are excluded 

from the proposed designation. The 

majority of pools in this area are on 

MCAS Miramar and are managed as part 

of the base’s INRMP. Miramar’s INRMP 

places vernal pools and vernal pool 

habitat in management areas where 

vernal pool conservation is a high 

priority. Therefore, areas considered 

essential for the conservation of N. 

fossalis at Miramar MCAS have not been 

included in proposed critical habitat 

pursuant to section 4(a)(3) of the Act. 

Other pools in the Central Coast 

Mesas Management Area are included 

in the San Diego MSCP. This plan 

details a policy of ‘‘no-net-loss’’ for 

vernal pools (City of San Diego 1997). 

There is currently an effort to develop 

a management plan for vernal pools 

within the MSCP that provides 

conservation benefit to N. fossalis. Areas 

considered essential for the 

conservation of N. fossalis within the 

MSCP are being excluded from 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60117

proposed critical habitat pursuant to 

section 4(b)(2) of the Act. The area being 

proposed as critical habitat in Unit 3 

contains the primary constituent 

elements described above relating to the 

pooling basins, watersheds, underling 

soil substrate and topography associated 

with occupied vernal pools. 

Unit 4 (Subunits 4A, 4B, 4C, 4D & 4E): 

San Diego Inland Valleys Critical 

Habitat Unit, San Diego County, 

California (3,027 ac (1,225 ha)) 

The San Diego Inland Valleys Critical 

Habitat Unit encompasses 3,027 ac 

(1,225 ha) within the San Diego Inland 

Valleys Management Area as identified 

in the Recovery Plan (Service 1998). The 

five subunits proposed as critical habitat 

for Navarretia fossalis contain one or 

more occupied vernal pool complexes 

within the jurisdiction of the City of San 

Marcos and the community of Ramona. 

In the community of Ramona, one of 

the complexes is within the boundaries 

of Ramona Airport. These vernal pool 

complexes are isolated from maritime 

influence and are representative of 

vernal pools associated with alluvial or 

volcanic type soils (Keeler-Wolf et al.

1998; Service 1998). The vernal pools in 

San Marcos are associated with native 

grassland and a unique association of 

multiple species of Brodiaea (Service 

1998). The Recovery Plan specifically 

identifies these vernal pools as essential 

for recovery of N. fossalis because of 

their role in stabilizing populations and 

preventing habitat loss (Service 1998). 

This unit includes vernal pools within 

the easternmost edge of the geographical 

distribution of the species. Conservation 

of vernal pools in this unit will help 

maintain the diversity of vernal pool 

habitats and their unique geological 

substrates, and will retain the genetic 

diversity of these geographically distinct 

populations. The areas being proposed 

as critical habitat in Unit 4 contain the 

primary constituent elements described 

above relating to the pooling basins, 

watersheds, underling soil substrate and 

topography associated with occupied 

vernal pools. 

Unit 5 (Subunits 5A, 5B, 5C & 5D): San 

Diego Southern Coastal Mesas Critical 

Habitat Unit, San Diego County, 

California (392 ac (159 ha)) 

The San Diego Southern Coastal 

Mesas Critical Habitat Unit 

encompasses 392 ac (159 ha) within the 

Southern Coastal Mesas Management 

Area as identified in the Recovery Plan 

(Service 1998), and contains several 

vernal pools and other physiavl features 

essential to the conservation of 

Navarretia fossalis. Three of the four 

subunits (5A, 5B, 5C) proposed as 

critical habitat contain occupied vernal 

pools. The majority of the land in this 

unit provides the essential watershed 

primary constituent element that 

contributes to the pooling basins that 

support N. fossalis.

The majority of pools in this Unit are 

part of the San Diego MSCP. There is 

currently an effort to develop a 

management plan for vernal pools 

within the MSCP which will provide 

further conservation benefit to N. 

fossalis. Areas considered essential for 

the conservation of Navarretia fossalis

within the MSCP have been excluded 

from proposed critical habitat pursuant 

to section 4(b)(2) of the Act. Of the 

essential locations, only the vernal 

pools and their watersheds that occur 

on lands not protected by the MSCP are 

proposed as critical habitat. The four 

subunits for this region include the J15 

complex or Arnie’s Point and the 

watershed, vernal pools, and ephemeral 

ponds that occur on east Otay Mesa that 

are in the Major and Minor Amendment 

Areas of the MSCP. 

Effects of Critical Habitat Designation 

Section 7 Consultation

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 

60118 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

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)). 

Activities on Federal lands that may 

affect Navarretia fossalis or its critical 

habitat will require section 7 

consultation. Activities 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. Activities that may destroy 

or adversely modify critical habitat 

include those that appreciably reduce 

the value of critical habitat to Navarretia 

fossalis. 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 actions include, but are not 

limited to: 

(1) Removing, thinning, or destroying 

Navarretia fossalis habitat (as defined in 

the primary constituent elements 

discussion), 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 Navarretia fossalis habitat 

(and its primary constituent elements) 

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; 

(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 licensed 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 Navarretia fossalis habitat. 

These activities include, but are not 

limited to, altering the natural fire 

regime either through fire suppression 

or by using prescribed fires that are too 

frequent or poorly-timed; 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 Navarretia fossalis. 

(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 could 

result in discharge of dredged or fill 

material, excavation, or mechanized 

land clearing of Navarretia fossalis

habitat; 

(6) Licensing of construction of 

communication sites by the Federal 

Communications Commission or 

funding of construction or development 

activities by the U.S. Department of 

Housing and Urban Development that 

could result in discharge of dredged or 

fill material, excavation, or mechanized 

land clearing of Navarretia fossalis

habitat; and 

(7) 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 that 

could result in discharge of dredged or 

fill material, excavation, or mechanized 

land clearing of Navarretia fossalis

habitat or 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 

Navarretia fossalis habitat. 

All lands proposed as critical habitat 

are within the geographical area 

occupied by the species and are 

essential for the conservation of 

Navarretia fossalis. Federal agencies 

already consult with us on actions that 

may affect N. fossalis to ensure that 

their actions do not jeopardize the 

continued existence of the species. 

Thus, we do not anticipate substantial 

additional regulatory protection will 

result from critical habitat designation. 

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 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60119

Comprehensive Conservation Plans that 

provide assurances that the 

conservation measures for the species 

will be implemented and effective. 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

Regional HCPs 

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 an 

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 augmented by an HCP that identifies 

implementable conservation measures 

to implement for the species to 

minimize and mitigate the impacts of 

the permitted incidental take. 

Some areas occupied by Navarretia 

fossalis involve complex HCPs that 

address multiple species, cover large 

areas, and have many participating 

permittees. Many of the large regional 

HCPs in southern California have been, 

or are being, developed to provide for 

the voluntary and cooperative 

conservation of numerous federally 

listed species and rare species and their 

habitat. Over time, areas in the planning 

area are addressed per the HCP, and key 

areas are 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, to reduce delays in the 

permitting process. 

Approved regional HCPs (e.g., those 

sponsored by cities, counties or other 

local jurisdictions) where Navarretia 

fossalis is addressed, provide for the 

protection and management of habitat 

essential for the conservation of the 

species while shifting development to 

non-essential areas. Regional HCP 

development processes provide an 

intensive data collection and analysis 

regarding habitat of N. fossalis. The 

process also enables us to develop a 

reserve system that provides for the 

biological needs and long-term 

conservation of the species (Schwartz 

1999). 

Completed HCPs and their 

accompanying Implementing 

Agreements (IA) contain management 

measures and protections for identified 

preserve areas that protect, restore, and 

enhance the value of these lands as 

habitat for Navarretia fossalis. These 

measures include explicit standards to 

minimize impacts to the addressed 

species and its habitat. In general, HCPs 

are designed to ensure that the value of 

the conservation lands are maintained, 

expanded, and improved for the species 

that they cover. 

In approving these HCPs, we have 

provided assurances to permit holders 

that once the protection and 

management required under the plans 

are in place and for as long as the permit 

holders are fulfilling their obligations 

under the plans, no additional 

mitigation in the form of land or 

financial compensation will be required 

of the permit holders and in some cases, 

specified third parties.

Navarretia fossalis is covered under 

the San Diego MSCP and the Western 

Riverside MSHCP. Portions of the 

proposed critical habitat units warrant 

exclusion from the proposed 

designation of critical habitat under 

section 4(b)(2) of the Act based on the 

management and protection afforded 

under the approved and legally 

operative San Diego MSCP subarea 

plans and the Western Riverside 

MSHCP. We have determined that the 

benefits of excluding essential habitat 

areas within these legally operative 

HCPs from the proposed critical habitat 

designations will outweigh the benefits 

of including them. 

Western Riverside Multiple Species 

Habitat Conservation Plan (MSHCP) 

Areas of essential habitat for N. 

fossalis in the Western Riverside County 

Management Area occur within the 

Western Riverside MSHCP area, and 

have been excluded from proposed 

critical habitat pursuant to section 

4(b)(2) of the Act. The Western 

Riverside MSHCP was developed over a 

period of eight years. 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 of ‘‘covered species’’ and, with 

regard to covered animal species, their 

incidental take. The intent of the 

MSHCP is 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). Navarretia fossalis

is a covered species under the MSHCP. 

The MSHCP has five objectives to 

conserve and monitor Navarretia 

fossalis populations: (1) To include 

within the MSHCP conservation area at 

least 6,900 ac of suitable habitat; (2) 

include within the MSHCP conservation 

area at 13 of the known locations of the 

species at Skunk Hollow, the Santa Rosa 

Plateau, the San Jacinto Wildlife Area, 

floodplains of the San Jacinto River 

from the Ramona Expressway to 

Railroad Canyon, and upper Salt Creek 

west of Hemet; (3) to conduct surveys 

for the species; (4) to include with the 

MSHCP conservation area the 

floodplain of the San Jacinto River 

consistent with Objective 1, and 

maintain floodplain processes along the 

river to provide for the distribution of 

the species to shift over time as 

hydrologic conditions and seed bank 

sources change; and (5) to include with 

the MSHCP conservation area the 

floodplain along Salt Creek generally in 

its existing condition from Warren Road 

to Newport Road and the vernal pools 

in Upper Salt Creek west of Hemet, and 

maintain floodplain processes along the 

river to provide for the distribution of 

the species to shift over time as 

hydrologic conditions and seed bank 

sources change. 

San Diego Multiple Species 

Conservation Program (MSCP) 

Portions of Units 3 and 5 are excluded 

from proposed critical habitat because 

they are within the San Diego MSCP in 

southwestern San Diego County. The 

San Diego MSCP effort encompasses 

approximately 582,000 ac (236,000 ha) 

and reflects the cooperative efforts of 

the local jurisdictions, the State, the 

building industry, and 

environmentalists. The San Diego MSCP 

provides for the establishment over the 

permit term of approximately 171,000 

ac (69,573 ha) of preserve areas to 

provide conservation benefits for 85 

federally listed and sensitive species. 

The San Diego MSCP and approved 

subarea plans provide measures to 

conserve Navarretia fossalis

populations on Otay Mesa. Surveys for 

N. fossalis are required in suitable 

habitat (i.e., vernal pools, ephemeral 

60120 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

wetlands, and seasonally ponded areas). 

These lands are to be permanently 

maintained and managed for the benefit 

of N. fossalis and other covered species. 

The eastern portion of Otay Mesa 

includes Major and Minor Amendment 

Areas. These areas require a special 

permitting process; therefore, we 

included them in this critical habitat 

proposal. 

Other Regional NCCPs and HCPs 

There are other regional NCCP/HCP 

efforts under way in southern California 

that have not yet been completed but 

which, upon approval, will provide 

conservation benefits to Navarretia 

fossalis. Lands within these HCPs are 

not excluded from consideration for 

proposed critical habitat. The Draft 

Multiple Habitat Conservation Program 

(MHCP) in northwestern San Diego 

County includes approximately 112,000 

ac (45,324 ha) within the study area. 

Currently, seven cities are participating 

in the development of the MHCP: 

Carlsbad, Encinitas, Escondido, San 

Marcos, Oceanside, Vista, and Solana 

Beach. Coverage for N. fossalis has not 

yet been determined for this plan and, 

therefore, we propose critical habitat 

within the planning area. 

(1) Benefits of Inclusion. The 

principal effect of designated critical 

habitat is that federally funded or 

authorized activities within critical 

habitat may require consultation under 

section 7 of the Act. Consultation 

ensures that action entities avoid 

adverse modification of critical habitat. 

Currently approved and permitted HCPs 

and NCCP/HCPs ensure the long-term 

survival of addressed species. HCPs or 

NCCP/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 to the species well in 

excess of those that would result from 

a critical habitat designation. 

(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 become the basis for regional 

conservation plans consistent with the 

recovery objectives for listed species 

covered within the plan area. Many of 

these HCPs provide conservation 

benefits to unlisted, rare species. 

Imposing 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 an additional regulatory 

burden requiring more of them than of 

other parties who have not voluntarily 

participated in species conservation. 

Designation of critical habitat within the 

boundaries of approved HCPs it is likely 

to 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 continued ability by 

the Service to seek new partnerships. 

These may include future HCP 

participants, such as States, counties, 

local jurisdictions, conservation 

organizations, and private landowners. 

These entities together may implement 

conservation actions that we would be 

unable to accomplish otherwise. 

An HCP or NCCP/HCP application 

must undergo section 7 consultation. 

While this consultation does not 

address adverse modification to critical 

habitat, it will determine if the HCP 

jeopardizes the species in the plan area. 

Federal actions not covered by the HCP, 

but in areas occupied by listed species, 

still require consultation under section 

7 of the Act. HCPs and NCCP/HCPs 

typically provide greater conservation 

benefits to an addressed listed species 

than section 7 consultations because 

HCPs and NCCP/HCPs assure the longterm 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 

ordinary section 7 consultations which 

are limited to requiring that the specific 

action being consulted upon not 

jeopardize the continued existence of 

the species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion. The San Diego 

MSCP in southwestern San Diego 

County and the Western Riverside 

MSHCP both include Navarretia fossalis

as a covered species. HCPs and NCCP/

HCPs provide protection for N. fossalis

and its associated habitat by securing 

the land where this plant occurs and 

developing a management plan for 

vernal pool ecosystems. The educational 

benefits of critical habitat, including 

informing the public of areas that are 

essential for the long-term survival and 

conservation of the species, are still 

accomplished from material provided 

on our Web site and through public 

notice and comment procedures 

required to establish an HCP or NCCP/

HCP. We have also received input from 

the public through the public 

participation that occurs in the 

development of many regional HCPs or 

NCCP/HCPs. For these reasons, we 

believe proposing critical habitat has 

little additional benefit in areas covered 

by HCPs, provided that the HCP or 

NCCP/HCP specifically and adequately 

covers the species for which critical 

habitat is being proposed. We do not 

believe that this exclusion would result 

in the extinction of the species because 

the essential habitat within these HCPs 

will be conserved, and we have already 

consulted on these HCPs under section 

7 of the Act.

Relationship to Department of Defense 

Lands 

The Sikes Act Improvements Act of 

1997 (Sikes Act) requires each military 

installation that includes land and water 

suitable for the conservation and 

management of natural resources to 

complete, by November 17, 2001, an 

Integrated Natural Resources 

Management Plan (INRMP). An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found there. INRMPs include an 

assessment of the ecological needs on 

the installation, including needs to 

provide for the conservation of listed 

species; a statement of goals and 

priorities; a description of management 

actions to be implemented to provide 

for these ecological needs; a monitoring 

plan, and an adaptive management plan. 

Section 318 of the National Defense 

Authorization Act for Fiscal Year 2004 

(Public Law 108–136) amended the 

Endangered Species Act to address the 

relationship of INRMPs to critical 

habitat by adding a new section 

4(a)(3)(B). This provision prohibits the 

Service from designating as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense, or designated 

for its use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary of 

the Interior determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. MCAS 

Miramar has an INRMP in place that 

provides a benefit for Navarretia 

fossalis. Camp Pendleton has an INRMP 

in place that provides a framework for 

managing natural resources. 

Marine Corps Air Station Miramar 

MCAS Miramar completed a final 

INRMP in May 2000 that provides a 

benefit to Navarretia fossalis. MCAS 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60121

Miramar has identified management 

areas with different resource 

conservation requirements and 

management concerns, and identifies 

them with five separate levels that 

correspond to their sensitivity. The 

majority of vernal pools and habitats 

that support vernal pool species, 

including the single known occurrence 

of N. fossalis, are located in ‘‘Level I 

Management Areas (MAs).’’ Preventing 

damage to vernal pool resources is the 

highest conservation priority in 

Management Areas with the ‘‘Level I’’

designation. The conservation of vernal 

pools in this MA is achieved through 

education of base personnel, proactive 

measures to avoid accidental impacts, 

and maintenance of an updated 

inventory of vernal pool basins and the 

associated vernal pool watersheds. 

Since the completion of MCAS 

Miramar’s INRMP, we have received 

reports on Miramar’s vernal pool 

monitoring and restoration program and 

correspondence detailing the 

installation’s expenditures on the 

objectives outlined in its INRMP. MCAS 

Miramar continues to monitor and 

manage its vernal pool resources; 

programs include a study in progress on 

the effects of fire on vernal pool 

resources, vernal pool mapping and 

species surveys, and a study of Pacific 

bentgrass (Agrostis avenaceae), an 

invasive exotic grass found in some 

vernal pools on the base. We believe 

this INRMP benefits this species. The 

pools on MCAS Miramar which support 

Navarretia fossalis are considered 

essential for the conservation of this 

species. In accordance with section 

4(a)(3) of the Act, these lands that are 

essential to the conservation of N. 

fossalis on MCAS Miramar have not 

been included in the proposed 

designation of critical habitat because 

the INRMP provides a benefit to the 

species. 

Marine Corps Base Camp Pendleton 

Under 4(b)(2) of the Act, we have 

considered the effect of a critical habitat 

designation on national security and 

have determined that the benefits of 

exclusion outweigh the benefits of 

inclusion. We are, therefore, not 

proposing critical habitat on ‘‘missioncritical’’ training areas on Camp 

Pendleton. In this proposal we refer to 

areas designated as training areas on 

maps created by MCB, Camp Pendleton 

as ‘‘mission-critical’’ training areas. 

The Marine Corps undertakes section 

7 consultation of the Act for activities 

that may affect federally threatened or 

endangered species on Camp Pendleton. 

On March 30, 2000, a formal 

consultation was initiated between the 

Marine Corps and the Fish and Wildlife 

Service regarding their activities on 

upland areas of Camp Pendleton. The 

upland consultation that addresses 

vernal pool habitat, Navarretia fossalis,

and other species is not yet complete. 

We are currently working cooperatively 

with Camp Pendleton to facilitate the 

completion of this consultation. 

To continue its critical training 

mission pending completion of the 

consultation, the Marine Corps has 

implemented measures to avoid 

jeopardy of Navarretia fossalis and other 

listed species within the uplands area. 

In particular, the Marine Corps is 

implementing a set of ‘‘programmatic 

instructions’’ to avoid adverse effects to 

N. fossalis.

(1) Benefits of Inclusion 

The primary benefit of proposing 

critical habitat is to identify lands 

essential to the conservation of the 

species which, if critical habitat was 

designated, would require consultation 

to ensure activities would not adversely 

modify critical habitat or jeopardize the 

continued existence of the species. We 

are in formal consultation with the 

Marine Corps on upland activities to 

ensure current and proposed actions 

will not jeopardize the species’

continued existence. Therefore, we do 

not believe that designation of ‘‘missioncritical’’ training areas on Camp 

Pendleton as critical habitat will 

appreciably benefit Navarretia fossalis

beyond the protection already afforded 

the species under the Act. Exclusion of 

these lands will not result in the 

extinction of the species because the 

conservation of N. fossalis populations 

will be addressed through our uplands 

consultation with the Marine Corps. The 

lands involved in this consultation are 

‘‘mission-critical’’ training areas, and 

essential populations of N. fossalis

occupy them. 

(2) Benefits of Exclusion

There are benefits to excluding areas 

on Camp Pendleton from critical habitat 

designation. Essential habitat for 

Navarretia fossalis within ‘‘missioncritical’’ training areas on Camp 

Pendleton are occupied by the species, 

and Section 7 consultations have been 

completed or are in progress. If essential 

habitat that occurs within ‘‘missioncritical’’ training areas is proposed as 

critical habitat, the Marine Corps would 

be required to determine if activities 

would adversely modify or destroy 

proposed critical habitat. If such a 

determination was made, the Marine 

Corps would be compelled to 

conference with us pursuant to the 

requirements of section 7 of the Act. 

If proposed critical habitat within 

training areas is included in a final 

designation, the Marine Corps would 

likely be compelled to review 

completed or in progress consultations 

to determine if activities may affect 

designated critical habitat. If ‘may affect’

determinations were made, the Marine 

Corps would be further obligated to 

initiate or reinitiate consultations with 

us. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We consider specific lands that 

provide benefits to Navarretia fossalis

essential for its conservation. For areas 

proposed as critical habitat not 

considered ‘‘mission-critical’’ training 

areas or are leased to the State of 

California, we will complete the 

balancing analysis under section 4(b)(2) 

in the final rule. We have considered 

and excluded lands in ‘‘missioncritical’’ training areas on Camp 

Pendleton from proposed critical 

habitat. Maps delineating habitat for N. 

fossalis, overlaid with ‘‘mission-critical’’

training areas on Camp Pendleton, are 

available for public review and 

comment at the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section) 

or on the Internet at http://

carlsbad.fws.gov. These maps are 

provided to allow the public the 

opportunity to adequately comment on 

these exclusions. We do not believe that 

this exclusion would result in the 

extinction of the species because the 

Marine Corps undertakes section 7 

consultation of the Act for activities that 

may affect federally threatened or 

endangered species on Camp Pendleton, 

and because the Marine Corps has 

implemented measures to avoid 

jeopardy of N. fossalis and other listed 

species within the uplands area. 

Economic Analysis 

An analysis of the economic impacts 

of proposing critical habitat for 

Navarretia fossalis 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 for a period 

not to exceed 30 days. 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 

60122 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our critical habitat designation is based 

on scientifically sound data, 

assumptions, and analyses. We will 

send these peer reviewers copies of this 

proposed rule immediately following 

publication in the Federal Register. We 

will invite these peer reviewers to 

comment, during the public comment 

period, on the specific assumptions and 

conclusions regarding the proposed 

designation of critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests 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 

proposal, if any are requested, and 

announce the dates, times, and places of 

those hearings in the Federal Register

and local newspapers at least 15 days 

prior to the first hearing. 

Clarity of the Rule 

Executive Order 12866 requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

rule? (5) What else could we do to make 

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

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. The Office of 

Management and Budget (OMB) has not 

reviewed this rule. We are preparing a 

draft economic analysis of this proposed 

action, and will use the results of 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 and possibly excluding any area 

from critical habitat if it is determined 

that the benefits of such exclusion 

outweigh the benefits of specifying such 

areas as part of the critical habitat, 

unless failure to designate such area as 

critical habitat will lead to the 

extinction of Navarretia fossalis. This 

analysis will also 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 Executive Order 

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. 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 

Executive Order 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 Navarretia fossalis is a 

significant regulatory action under 

Executive Order 12866 in that it may 

raise novel legal or 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 

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60123

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While 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 all of the 

areas designated for critical habitat are 

occupied by Navarretia fossalis and 

would have required consultation if a 

Federal nexus was present regardless of 

this critical habitat designation. As 

such, Small Government Agency Plan is 

not required. 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, the rule does not have significant 

takings implications. A takings 

implication assessment is not required. 

The designation of critical habitat 

affects only Federal agency actions. The 

rule will not increase or decrease the 

current restrictions on private property 

concerning take of Navarretia fossalis.

Due to current public knowledge of the 

species’ protection, the prohibition 

against take of the species both within 

and outside of the designated areas, and 

the fact that critical habitat provides no 

incremental restrictions, we do not 

anticipate that property values will be 

affected by the proposed critical habitat 

designation. While real estate market 

values may temporarily decline 

following designation, due to the 

perception that critical habitat 

designation may impose additional 

regulatory burdens on land use, we 

expect any such impacts to be short 

term. Additionally, critical habitat 

designation does not preclude 

development of HCPs and issuance of 

incidental take permits. Owners of areas 

that are included in the designated 

critical habitat will continue to have 

opportunity to use their property in 

ways consistent with the survival of the 

N. fossalis.

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 and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed critical habitat designation 

with appropriate State resource agencies 

in California. The designation of critical 

habitat in areas currently occupied by 

Navarretia fossalis imposes no 

additional restrictions to those currently 

in place and, therefore, has little 

incremental impact on State and local 

governments and their activities. The 

designation 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 

proposed designating critical habitat in 

accordance with the provisions of the 

Act. This proposed rule uses standard 

property descriptions and identifies the 

primary constituent elements within the 

designated areas to assist the public in 

understanding the habitat needs of 

Navarretia fossalis.

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 

assertion 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 

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 

Navarretia fossalis.

References Cited 

A complete list of all references cited 

in this proposed rule is available upon 

request from the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

60124 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

Author 

The primary authors of this notice are 

the staff of the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section).

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 

‘‘Navarretia fossalis’’ 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

* * * * * * * 

Navarretia fossalis .... Spreading navarretia U.S.A. (CA), Mexico 

(Baja, California).

Polemoniaceae—

Phlox Family.

T 650 17.96(a) NA 

* * * * * * * 

3. In § 17.96(a), add critical habitat for 

Navarretia fossalis in alphabetical order 

under Family Polemoniaceae to read as 

follows: 

§ 17.96 Critical habitat—plants.

(a) Flowering plants.

* * * * *

Family Polemoniaceae: Navarretia 

fossalis (Spreading Navarretia) 

(1) Critical habitat units and excluded 

essential habitat for Navarretia fossalis

are depicted for San Diego, Riverside 

and Los Angeles Counties, California, 

on the maps below. 

(2) The primary constituent elements 

of critical habitat for Navarretia fossalis

are: 

(i) Vernal pool, alkali grassland, alkali 

playa, or alkali sink habitats, at 

elevations between sea level and 4,250 

ft (1,300 m), and on flat to gently 

sloping terrain. 

(ii) Clay soils that retain water for 

sufficient amounts of time, especially in 

the winter and spring months, to 

support vernal pool, alkali grassland, 

alkali playa, or alkali sink habitats.

(iii) Watershed area immediately 

surrounding vernal pool, alkali 

grassland, alkali playa, or alkali sink 

habitats with hydrology necessary to 

maintain these specialized habitats. 

(3) Critical habitat for Navarretia 

fossalis does not include existing 

features and structures, such as 

buildings, roads, aqueducts, railroads, 

airport runways and buildings, other 

paved areas, lawns, and other urban 

landscaped areas not containing one or 

more of the primary constituent 

elements. 

(4) Lands determined to be essential 

to the conservation of Navarretia 

fossalis and that have been excluded 

from this proposed designation, are 

described below: 

(i) All essential habitat where an 

operational Habitat Conservation Plan 

provides for the conservation of 

Navarretia fossalis. These lands consist 

of non-federal lands within the Western 

Riverside Multiple Species Habitat 

Conservation Plan and preserved lands 

in the San Diego Multiple Species 

Conservation Program. 

(ii) Note: Map of essential habitat for 

Navarretia fossalis that is being 

excluded from critical habitat 

designation within the Western 

Riverside MSHCP conservation area 

follows: 

BILLING CODE 4310–55–P

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60125


EP07OC04.018</GPH>
60126 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

(5) Unit 1: Transverse Range Unit. Los 

Angeles County, California. From USGS 

1:24,000 quadrangle map Mint Canyon, 

California. 

(i) Unit 1A: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 368000, 3815300; 368400, 

3815300; 368400, 3815200; 368600, 

3815200; 368600, 3815100; 368700, 

3815100; 368700, 3814700; 368600, 

3814700; 368600, 3814600; 368400, 

3814600; 368400, 3814500; 368200, 

3814500; 368200, 3814300; 368300, 

3814300; 368300, 3813700; 368200, 

3813700; 368200, 3813500; 368100, 

3813500; 368100, 3813300; 368000, 

3813300; 368000, 3813100; 367400, 

3813100; 367400, 3813200; 367300, 

3813200; 367300, 3813800; 367100, 

3813800; 367100, 3813900; 366900, 

3813900; 366900, 3814100; 367000, 

3814100; 367000, 3814200; 367100, 

3814200; 367100, 3814300; 367200, 

3814300; 367200, 3814400; 367300, 

3814400; 367300, 3814500; 367400, 

3814500; 367400, 3814700; 367500, 

3814700; 367500, 3814800; 367600, 

3814800; 367600, 3814900; 367700, 

3814900; 367700, 3815000; 367800, 

3815000; 367800, 3815100; 367900, 

3815100; 367900, 3815200; 368000, 

3815200; returning to 368000, 3815300. 

(ii) Unit 1B: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 366000, 3813100; 366500, 

3813100; 366500, 3812600; 366000, 

3812600; returning to 366000, 3813100. 

(iii) Note: Map of critical habitat unit 

1 for Navarretia fossalis follows:

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60127


EP07OC04.019</GPH>
60128 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

(6) Unit 2: San Diego, North Coastal 

Mesas Unit. San Diego County, 

California. From USGS 1:24,000 

quadrangle map Encinitas, California, 

land bounded by the following UTM 11 

NAD27 coordinates (E, N): 470000, 

3663800; 470200, 3663800; 470200, 

3663700; 470300, 3663700; 470300, 

3663600; 470500, 3663600; 470500, 

3663300; 470600, 3663300; 470600, 

3663100; 470700, 3663100; 470700, 

3662900; 470800, 3662900; 470800, 

3662200; 470500, 3662200; 470500, 

3662300; 470400, 3662300; 470400, 

3662900; 470300, 3662900; 470300, 

3663100; 470200, 3663100; 470200, 

3663400; 470100, 3663400; 470100, 

3663700; 470000, 3663700; returning to 

470000, 3663800. 

(i) Note: Map of critical habitat unit 2 

for Navarretia fossalis follows: 

(ii) (reserved)

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60129


EP07OC04.020</GPH>
60130 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

(7) Unit 3: San Diego, Central Coastal 

Mesas Unit. San Diego County, 

California. From USGS 1:24,000 

quadrangle map Rancho Santa Fe, 

California, land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 485200, 3653600; 485600, 

3653600; 485600, 3653200; 485700, 

3653200; 485700, 3652900; 485300, 

3652900; 485300, 3653000; 485200, 

3653000; 485200, 3652700; 485000, 

3652700; 485000, 3652800; 484700, 

3652800; 484700, 3653200; 485000, 

3653200; 485000, 3653500; 485200, 

3653500; returning to 485200, 3653600; 

excluding lands approved within the 

San Diego-area Multiple Species 

Conservation Program, County of San 

Diego Subarea Plan. 

(8) Unit 4: San Diego, Inland Valleys 

Unit. San Diego County, California. 

From USGS 1:24,000 quadrangle maps 

Ramona, San Marcos, and San Pasqual, 

California. 

(i) Unit 4A: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 481800, 3667300; 482000, 

3667300; 482000, 3667100; 481800, 

3667100; returning to 481800, 3667300. 

(ii) Unit 4B: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 482500, 3667500; 482800, 

3667500; 482800, 3667300; 482600, 

3667300; 482600, 3667100; 482400, 

3667100; 482400, 3667000; 482200, 

3667000; 482200, 3667200; 482300, 

3667200; 482300, 3667400; 482500, 

3667400; returning to 482500, 3667500. 

(iii) Unit 4C: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 481600, 3666800; 481900, 

3666800; 481900, 3666700; 482100, 

3666700; 482100, 3666500; 482000, 

3666500; 482000, 3666300; 481900, 

3666300; 481900, 3666100; 482000, 

3666100; 482000, 3665900; 481900, 

3665900; 481900, 3665800; 481700, 

3665800; 481700, 3665900; 481600, 

3665900; 481600, 3666100; 481400, 

3666100; 481400, 3666300; 481800, 

3666300; 481800, 3666400; 481600, 

3666400; 481600, 3666500; 481500, 

3666500; 481500, 3666600; 481600, 

3666600; returning to 481600, 3666800. 

(iv) Unit 4D: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 482800, 3666600; 483000, 

3666600; 483000, 3666400; 482800, 

3666400; returning to 482800, 3666600. 

(v) Unit 4E: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 508400, 3657000; 509000, 

3657000; 509000, 3656200; 509300, 

3656200; 509300, 3656000; 509800, 

3656000; 509800, 3655500; 509500, 

3655500; 509500, 3655000; 509300, 

3655000; 509300, 3653700; 509600, 

3653700; 509600, 3653800; 509700, 

3653800; 509700, 3653900; 509800, 

3653900; 509800, 3654000; 509900, 

3654000; 509900, 3654100; 510000, 

3654100; 510000, 3654200; 510100, 

3654200; 510100, 3654300; 510200, 

3654300; 510200, 3654400; 510300, 

3654400; 510300, 3654500; 510400, 

3654500; 510400, 3654600; 510500, 

3654600; 510500, 3654800; 511300, 

3654800; 511300, 3655100; 511200, 

3655100; 511200, 3655400; 511400, 

3655400; 511400, 3655300; 511500, 

3655300; 511500, 3655100; 511600, 

3655100; 511600, 3655200; 511800, 

3655200; 511800, 3655000; 511700, 

3655000; 511700, 3654800; 511600, 

3654800; 511600, 3654700; 511900, 

3654700; 511900, 3654500; 512000, 

3654500; 512000, 3654600; 512200, 

3654600; 512200, 3654700; 512300, 

3654700; 512300, 3654800; 512500, 

3654800; 512500, 3654900; 512700, 

3654900; 512700, 3654800; 512600, 

3654800; 512600, 3654400; 512500, 

3654400; 512500, 3654300; 512000, 

3654300; 512000, 3653900; 511900, 

3653900; 511900, 3653800; 511700, 

3653800; 511700, 3654500; 510800, 

3654500; 510800, 3654400; 510700, 

3654400; 510700, 3654200; 510500, 

3654200; 510500, 3654100; 510400, 

3654100; 510400, 3654000; 510300, 

3654000; 510300, 3653900; 510200, 

3653900; 510200, 3653800; 510100, 

3653800; 510100, 3653700; 510000, 

3653700; 510000, 3653600; 510200, 

3653600; 510200, 3653400; 510100, 

3653400; 510100, 3653200; 510500, 

3653200; 510500, 3653000; 509000, 

3653000; 509000, 3654000; 508500, 

3654000; 508500, 3654200; 506500, 

3654200; 506500, 3654500; 505500, 

3654500; 505500, 3654700; 504400, 

3654700; 504400, 3654800; 504000, 

3654800; 504000, 3655000; 505000, 

3655000; 505000, 3655900; 505500, 

3655900; 505500, 3655700; 506000, 

3655700; 506000, 3655600; 506800, 

3655600; 506800, 3656400; 506900, 

3656400; 506900, 3656600; 507200, 

3656600; 507200, 3656500; 507400, 

3656500; 507400, 3656600; 507900, 

3656600; 507900, 3656700; 508000, 

3656700; 508000, 3656900; 508400, 

3656900; returning to 508400, 3657000. 

(vi) Note: Map of critical habitat units 

3–4 for Navarretia fossalis follows:

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EP07OC04.021</GPH>
60132 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

(9) Unit 5: San Diego, Southern 

Coastal Mesas Unit. San Diego County, 

California. From USGS 1:24,000 

quadrangle maps Imperial Beach, Jamul 

Mountains, and Otay Mesa, California. 

(i) Unit 5A: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 501000, 3616800; 501200, 

3616800; 501200, 3616600; 501300, 

3616600; 501300, 3616400; 501400, 

3616400; 501400, 3616100; 501200, 

3616100; 501200, 3615800; 501000, 

3615800; 501000, 3615700; 500800, 

3615700; 500800, 3616200; 501000, 

3616200; 501000, 3616400; 501100, 

3616400; 501100, 3616600; 500900, 

3616600; 500900, 3616500; 500800, 

3616500; 500800, 3616400; 500600, 

3616400; 500600, 3616300; 500400, 

3616300; 500400, 3616200; 500300, 

3616200; 500300, 3616400; 500200, 

3616400; 500200, 3616500; 500500, 

3616500; 500500, 3616700; 501000, 

3616700; returning to 501000, 3616800; 

excluding lands approved within the 

San Diego Multiple Species 

Conservation Program. 

(ii) Unit 5B: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 500000, 3608000; 500200, 

3608000; 500200, 3607600; 499900, 

3607600; 499900, 3607700; 499600, 

3607700; 499600, 3607900; 500000, 

3607900; returning to 500000, 3608000; 

excluding lands approved within the 

San Diego Multiple Species 

Conservation Program. 

(iii) Unit 5C: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 506700, 3606800; 506900, 

3606800; 506900, 3606500; 507000, 

3606500; 507000, 3606300; 506900, 

3606300; 506900, 3606000; 506700, 

3606000; 506700, 3606100; 506600, 

3606100; 506600, 3606300; 506500, 

3606300; 506500, 3606600; 506700, 

3606600; returning to 506700, 3606800; 

excluding lands approved within the 

San Diego Multiple Species 

Conservation Program. 

(iv) Unit 5D: Land bounded by the 

following UTM 11 NAD27 coordinates 

(E, N): 499500, 3601300; 500400, 

3601300; 500400, 3600600; 499700, 

3600600; 499700, 3600500; 499500, 

3600500; returning to 499500, 3601300; 

excluding lands approved within the 

San Diego-area Multiple Species 

Conservation Program, City of San Diego 

Subarea Plan. 

(v) Note: Map of critical habitat unit 

5 for Navarretia fossalis follows:

Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 60133


EP07OC04.022</GPH>
60134 Federal Register / Vol. 69, No. 194 / Thursday, October 7, 2004 / Proposed Rules 

Dated: October 1, 2004. 

Julie MacDonald, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks.

[FR Doc. 04–22541 Filed 10–6–04; 8:45 am] 

BILLING CODE 4310–55–C

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT78 

Endangered and Threatened Wildlife 

and Plants; Proposed Designation of 

Critical Habitat for the San Miguel 

Island Fox, Santa Rosa Island Fox, 

Santa Cruz Island Fox, and Santa 

Catalina Island Fox

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Proposed rule.

SUMMARY: The San Miguel Island fox, 

Santa Rosa Island fox, Santa Cruz Island 

fox, and Santa Catalina Island fox were 

listed as endangered species under the 

Endangered Species Act of 1973, as 

amended (Act), on March 5, 2004. We 

do not find any habitat on the four 

islands occupied by the foxes that meets 

the definition of critical habitat under 

the Act. Because there is no habitat that 

meets the definition of critical habitat 

for the island fox subspecies, there is 

none to propose, and we are proposing 

that zero critical habitat be designated. 

We solicit data and comments from 

the public on all aspects of this 

proposed finding. Unless we receive 

information during the comment period 

that indicates there is habitat which 

meets the definition of critical habitat, 

we will not be preparing an economic 

analysis.

DATES: We will consider comments 

received by December 6, 2004.

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, 

U.S. Fish and Wildlife Service, Ventura 

Fish and Wildlife Office, 2493 Portola 

Road, Suite B, Ventura, CA 93003. 

2. You may hand-deliver written 

comments to our Ventura Office, at the 

address given above. 

3. You may send comments by 

electronic mail (e-mail) to: 

fw1islandfox@r1.fws.gov. Please see the 

Public Comments Solicited section 

below for file format and other 

information about electronic filing. In 

the event that our Internet connection is 

not functional, please submit comments 

by the alternate methods mentioned 

above. 

4. You may fax your comments to 

805/644–3958. 

The complete file for this finding is 

available for public inspection, by 

appointment, during normal business 

hours at the Ventura Fish and Wildlife 

Office, U.S. Fish and Wildlife Service, 

2493 Portola Road, Suite B, Ventura, CA 

93003.

FOR FURTHER INFORMATION CONTACT: For 

the San Miguel Island fox, Santa Rosa 

Island fox, and Santa Cruz Island fox, 

contact Diane Noda, Field Supervisor, 

Ventura Fish and Wildlife Office at the 

address given above (telephone 805/

644–1766; facsimile 805/644–3958). For 

the Santa Catalina Island fox, contact 

Jim Bartel, Field Supervisor, Carlsbad 

Fish and Wildlife Office, 6010 Hidden 

Valley Road, Carlsbad, CA (telephone 

760/431–9440; facsimile 760/431–9624).

SUPPLEMENTARY INFORMATION: 

Preamble 

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. 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 445 species or 36 percent 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 

that 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 States 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 inundated with 

lawsuits for our failure to designate 

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