[Federal Register Volume 69, Number 194 (Thursday, October 7, 2004)]
[Proposed Rules]
[Pages 60110-60134]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22541]


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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.

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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

[[Page 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 
<a href="/cdn-cgi/l/email-protection#8aecfdbbe9ecfde5d5e4ebece5caecfdf9a4ede5fc"><span class="__cf_email__" data-cfemail="4f29387e2c29382010212e29200f29383c61282039">[email protected]</span></a>. 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 <a href="/cdn-cgi/l/email-protection#422435732124352d1d2c23242d022435316c252d34"><span class="__cf_email__" data-cfemail="f59382c49693829aaa9b94939ab5938286db929a83">[email protected]</span></a> 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 <a href="/cdn-cgi/l/email-protection#1a7c6d2b797c6d7545747b7c755a7c6d69347d756c"><span class="__cf_email__" data-cfemail="e98f9ed88a8f9e86b687888f86a98f9e9ac78e869f">[email protected]</span></a> 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.

[[Page 60112]]

Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

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

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

Procedural and Resource Difficulties in Designating Critical Habitat

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

Background

    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 flat-topped, 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 (many-flowered 
navarretia) and N. leucocephala ssp. pauciflora (few-flowered 
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

[[Page 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; Keeler-Wolf 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 peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, biological assessments, or other 
unpublished materials and expert opinion or personal knowledge.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant to

[[Page 60114]]

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 peer-reviewed 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

[[Page 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                     596 ac                   596 ac
                                       (0 ha)                   (241 ha)                 (241 ha)
Riverside............................  (**)                     (**)                     (**)
San Diego............................  178 ac                   3,527 ac                 3,705 ac
                                       (72 ha)                  (1,427 ha)               (1,499 ha)
                                      --------------------------
Total................................  178 ac                   4,123 ac                 4,301 ac
                                       (72 ha)                  (1,669 ha)               (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.


[[Page 60116]]


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      31,086 ac
 Navarretia fossalis.                       (12,580 ha)
Essential habitat not included in the       774 ac
 proposed critical habitat designation      (3,313 ha)
 pursuant to section 4(a)(3) of the Act
 due to an INRMP that benefits Navarretia
 fossalis (Marine Corps Air Station
 (MCAS), Miramar).
Essential habitat excluded from the         25,944 ac
 proposed critical habitat designation      (10,499 ha)
 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)).
Essential habitat excluded from the         67 ac
 proposed critical habitat designation      (27 ha)
 pursuant to section 4(b)(2) of the Act:
 ``Mission-critical'' Department of
 Defense lands (Marine Corps Base (MCB),
 Camp Pendleton).
Total essential habitat excluded from       26,785 ac
 proposed critical habitat.                 (10,839 ha)
Total essential habitat proposed as         4,301 ac
 critical habitat.                          (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 
Soul[eacute] 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

[[Page 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

[[Page 60118]]

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

[[Page 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

[[Page 60120]]

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 long-term protection and 
management of a covered species and its habitat, and funding for such 
management through the standards found in the 5-Point Policy for HCPs 
(64 FR 35242). Such assurances are typically not provided by 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

[[Page 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 ``mission-critical'' 
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 ``mission-critical'' 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 ``mission-critical'' 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 
``mission-critical'' 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 ``mission-critical'' 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

[[Page 60122]]

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: <a href="/cdn-cgi/l/email-protection#6b2e13180e082b020418450f0402450c041d"><span class="__cf_email__" data-cfemail="95d0ede6f0f6d5fcfae6bbf1fafcbbf2fae3">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is 
significant in that it may raise novel legal and policy issues, but it 
is not anticipated to have an annual effect on the economy of $100 
million or more or affect the economy in a material way. 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

[[Page 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 non-Federal entities who receive Federal 
funding, assistance, permits or otherwise require approval or 
authorization from a Federal agency for an action may be indirectly 
impacted by the designation of critical habitat, the legally binding 
duty to avoid destruction or adverse modification of critical habitat 
rests squarely on the Federal agency. Furthermore, to the extent that 
non-Federal entities are indirectly impacted because they receive 
Federal assistance or participate in a voluntary Federal aid program, 
the Unfunded Mandates Reform Act would not apply; nor would critical 
habitat shift the costs of the large entitlement programs listed above 
on to State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because 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).

[[Page 60124]]

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 Sec.  17.12(h) revise the entry for ``Navarretia fossalis'' 
under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic  range         Family            Status         When         Critical        Special
         Scientific name              Common name                                                                listed         habitat         rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
        Flowering Plants
 
                                                                      * * * * * * *
Navarretia fossalis.............  Spreading            U.S.A. (CA),        Polemoniaceae--Phl  T                      650  17.96(a)                   NA
                                   navarretia.          Mexico (Baja,       ox Family.
                                                        California).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96(a), add critical habitat for Navarretia fossalis 
in alphabetical order under Family Polemoniaceae to read as follows:



Sec.  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

[[Page 60125]]

[GRAPHIC] [TIFF OMITTED] TP07OC04.018


[[Page 60126]]


    (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:

[[Page 60127]]

[GRAPHIC] [TIFF OMITTED] TP07OC04.019


[[Page 60128]]


    (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)

[[Page 60129]]

[GRAPHIC] [TIFF OMITTED] TP07OC04.020


[[Page 60130]]


    (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:

[[Page 60131]]

[GRAPHIC] [TIFF OMITTED] TP07OC04.021


[[Page 60132]]


    (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:

[[Page 60133]]

[GRAPHIC] [TIFF OMITTED] TP07OC04.022



[[Page 60134]]


    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


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