68568 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT44 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the California tiger 

salamander (Ambystoma californiense) 

in Santa Barbara County

AGENCY: Fish and Wildlife Service, 

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for the Santa Barbara 

County population of California tiger 

salamander (Ambystoma californiense) 

(referred to here as California tiger 

salamander or CTS in Santa Barbara 

County) under the Endangered Species 

Act of 1973, as amended (Act). In total, 

approximately 11,180 acres (ac) (4,523 

hectares (ha)) fall within the boundaries 

of the critical habitat designation. The 

critical habitat is located in northern 

Santa Barbara County, California. 

Collectively, we excluded a total of 

2,740 ac (1,109 ha) of privately-owned 

lands from this final critical habitat 

designation.

DATES: This final rule is effective 

December 27, 2004.

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours at the 

Ventura Fish and Wildlife Office, U.S. 

Fish and Wildlife Service, 2493 Portola 

Road, Suite B, Ventura, CA 93003.

FOR FURTHER INFORMATION CONTACT:

Diane Noda, Field Supervisor, Ventura 

Fish and Wildlife Office (see ADDRESSES

section) (telephone 805/644–1766; 

facsimile 805/644–3958).

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs. The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 445 species or 36 percent of the 

1,244 listed species in the U.S. under 

the jurisdiction of the Service have 

designated critical habitat. We address 

the habitat needs of all 1,244 listed 

species through conservation 

mechanisms such as listing, section 7 

consultations, the Section 4 recovery 

planning process, the Section 9 

protective prohibitions of unauthorized 

take, Section 6 funding to the States, 

and the Section 10 incidental take 

permit process. The Service believes 

that it is these measures that may make 

the difference between extinction and 

survival for many species.

We note, however, that a recent 9th 

Circuit judicial opinion, Gifford Pinchot 

Task Force v. United States Fish and 

Wildlife Service, has invalidated the 

Service’s regulation defining destruction 

or adverse modification of critical 

habitat. We are currently reviewing the 

decision to determine what effect it may 

have on the outcome of consultations 

pursuant to Section 7 of the Act. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

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). 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 

For background information, please 

see the proposed designation of critical 

habitat for the Santa Barbara County 

Distinct Vertebrate Population Segment 

(DPS) of the California tiger salamander 

published on January 22, 2004 (69 FR 

3064). That information is incorporated 

by reference into this final rule. 

Previous Federal Action 

On February 25, 2003, the 

Environmental Defense Center and 

Center for Biological Diversity filed a 

complaint challenging our failure to 

designate critical habitat for the Santa 

Barbara County DPS of the California 

tiger salamander (Environmental 

Defense Center et al. v. U.S. Fish and 

Wildlife Service et al., EVCD 03–00195 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68569

(C.D. Cal)). By an order dated August 7, 

2003, the district court ordered us to 

publish a proposed rule to designate 

critical habitat for the Santa Barbara 

County DPS of the California tiger 

salamander by January 15, 2004, and a 

final rule by November 15, 2004. We 

published the proposed rule on January 

22, 2004 (69 FR 3064). 

On August 4, 2004, we made a new 

determination regarding the listing 

status of the California tiger salamander. 

This determination changed the status 

of the Santa Barbara population. We 

determined that the California tiger 

salamander is threatened rangewide, 

and we published this finding along 

with a Special Rule exempting existing 

routine ranching practices throughout 

the species’ range (69 FR 47212). New 

version: The rule included a detailed 

analysis of threats to the California tiger 

salamander, Central population, and a 

reclassification of the Santa Barbara 

County and Sonoma County 

populations. As a result, we removed 

these populations as separately listed 

DPSs, and listed the entire California 

tiger salamander species as threatened. 

We are issuing this final designation 

of critical habitat for the California tiger 

salamander in the Santa Barbara County 

portion of its range in compliance with 

the court’s order (described above), 

noting that it does not include all 

portions of the range of the entity now 

listed. We anticipate completing the 

critical habitat designation for California 

tiger salamander rangewide through 

future rulemaking. We proposed critical 

habitat for the California tiger 

salamander, Central population, on 

August 10, 2004 (69 FR 48570). 

Summary of Comments and 

Recommendations 

We contacted appropriate Federal, 

State, and local agencies, scientific 

organizations, and other interested 

parties and invited them to comment on 

the proposed critical habitat designation 

for the CTS in Santa Barbara County. In 

addition, we invited public comment 

through the publication of a notice in 

the Santa Barbara News-Press on 

January 26, 2004, and the Santa Maria 

Times on January 28, 2004. 

In the January 22, 2004, proposed 

critical habitat designation (69 FR 3064), 

we requested that all interested parties 

submit comments on the specifics of the 

proposal, including information related 

to the critical habitat designation, unit 

boundaries, species occurrence 

information and distribution, land use 

designations that may affect critical 

habitat, potential economic effects of the 

proposed designation, benefits 

associated with the critical habitat 

designation, potential exclusions and 

the associated rationale for the 

exclusions, and methods used to 

designate critical habitat. We also 

contacted all appropriate Federal, State, 

and local agencies, scientific 

organizations, and other interested 

parties and invited them to comment. 

This was accomplished through letters 

and news releases mailed to affected 

elected officials, media outlets, local 

jurisdictions, interest groups and other 

interested individuals. In addition, we 

invited public comment through the 

publication of legal notices in 

newspapers throughout Santa Barbara 

County. 

We received several requests for a 

public hearing and an extension of the 

comment period. We announced the 

reopening of the comment period and 

the date and time of the public hearing 

on April 13, 2004 (69 FR 19364), and 

invited additional comments in letters 

to appropriate elected officials; Federal, 

State, and local agencies; scientific 

organizations; and other interested 

parties. We also published notices in 

several news sources, including the 

Federal Register, Santa Barbara NewsPress, and the Santa Maria Times. We 

held a public hearing in Santa Maria, 

California, on May 11, 2004. Thirty-two 

individuals gave testimony on the 

proposed critical habitat designation for 

the CTS in Santa Barbara County. 

We provided notification of 

availability of the draft economic 

analysis (DEA) through letters and news 

releases faxed and/or mailed to affected 

elected officials, media outlets, local 

jurisdictions, and interest groups. We 

also published a notice of its availability 

in the Federal Register on October 7, 

2004 (69 FR 60138) and made the DEA 

and associated material available on our 

Ventura Fish and Wildlife Office 

Internet site. The reopened comment 

period closed on November 8, 2004.

We received a cumulative total of 71 

comment letters and electronic mail 

messages (e-mails) during all of the 

comment periods. We reviewed all 

comments received for substantive 

issues and new information regarding 

the CTS in Santa Barbara County. We 

grouped the comments into three 

categories: peer review comments, State 

comments, or public comments. We 

grouped similar public comments into 

six general issue categories relating 

specifically to the proposed critical 

habitat determination and/or the DEA. 

Substantive comments and 

accompanying information have either 

been incorporated directly into the final 

rule, economic analysis documents, 

and/or they have been addressed in the 

following summary. 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we solicited 

review from at least three appropriate 

and independent specialists/experts 

regarding the 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 solicited peer review from 11 

individuals who have detailed 

knowledge of and expertise in 

amphibian biology in general, or 

salamander biology specifically, as well 

in scientific principles and conservation 

biology. The individuals were asked to 

review and comment on the specific 

assumptions and conclusions regarding 

the proposed designation of critical 

habitat. Three of the eleven reviewers 

submitted comments on the proposed 

designation. The three reviewers 

strongly endorsed the approach we used 

in our proposal that emphasized the 

importance of conserving aquatic 

habitat in the context of surrounding 

upland habitat. The reviewers felt that 

this approach is crucial for the 

conservation and long-term survival of 

the CTS in Santa Barbara County. They 

also stated that the rule placed 

appropriate emphasis on protecting the 

remaining habitat. All generally 

supported our methodology and 

conclusions. 

Comment (1) (Peer): One peer 

reviewer cited the importance of 

conserving the historical connectivity 

between the six critical habitat units 

and suggested that all lands surrounding 

and between Units 3 (Western Alamos/

Careaga), 4 (Eastern Los Alamos), 5 

(Purisima Hills), and 6 (Santa Rita 

Valley) be included as critical habitat. 

The reviewer also suggested that 

additional historical locations of the 

CTS in Santa Barbara County be 

considered for critical habitat, and 

specifically recommended inclusion of 

the known pond near Unit 6 (Santa Rita 

Valley) and some upland habitat 

surrounding Unit 2 (Eastern Santa 

Maria). 

Our Response: Although we agree that 

preserving connectivity between known 

breeding ponds is essential for the 

conservation of the CTS in Santa 

Barbara County, we do not believe that 

unoccupied and historical locations are 

essential for the conservation of the 

species. The science subteam of the 

recovery team for CTS in Santa Barbara 

County determined that the CTS in 

Santa Barbara County could be 

conserved by protecting habitat in six 

disparate conservation areas, excluding 

68570 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

unoccupied and/or historical locations 

between these six conservation areas. 

These six conservation areas were 

identified over a series of meetings that 

took place between 2002 and 2003 

(Service files 2002–2003). These six 

conservation areas closely resemble the 

critical habitat units contained in this 

rule. The six units that we have 

designated as critical habitat provide for 

the essential life-cycle needs of the 

species, and provide the habitat 

components essential for the 

conservation of this species (i.e., the 

primary constituent elements (PCEs) 

described below in the Primary 

Constituent Elements section). 

State Agencies 

We received comments from the 

California Department of Transportation 

(Caltrans). Technical data provided by 

Caltrans has been incorporated into, or 

addressed in, this final rule, while other 

issues raised by Caltrans are addressed 

below. 

Comment (2) (State): Caltrans 

commented that it is unclear why Unit 

1 (Western Santa Maria/Orcutt) extends 

to the western side of State Highway 1, 

from Black Road to Clark Road. Caltrans 

requested that this boundary be along 

the eastern State Highway right-of-way 

(ROW). Caltrans stated that the rule is 

written so that it is difficult to discern 

whether the State ROW is included in 

the boundary. Caltrans commented that, 

as currently written in the proposed 

rule, the State Highway appears to be 

the boundary. Caltrans stated that the 

boundary should be relocated outside 

the State ROW and clearly defined. 

Caltrans indicated that State ROWs are 

regularly disturbed and do not provide 

essential habitat for California tiger 

salamanders. Futhermore, Caltrans 

stated that including State ROWs is not 

necessary and would be prohibitive in 

terms of both staff time and unnecessary 

expenses to the State, and would 

provide little to no benefit to sensitive 

species. 

Our Response: ROWs are not included 

in this designation. 

Comment (3) (State): Caltrans stated 

that the maps provided in the Federal 

Register need to be more informative 

with a greater level of detail that 

accurately defines the boundaries of 

proposed critical habitat units. Caltrans 

suggested that the Service publish 

Geographic Information System (GIS) 

maps. 

Our Response: The maps in the 

Federal Register are meant to provide 

the general location and shape of critical 

habitat. The proposed rule also included 

Universal Transverse Mercator (UTM) 

coordinates of the proposed critical 

habitat units. These legal descriptions 

are readily plotted and transferable to a 

variety of mapping formats, and are 

available electronically upon request for 

use with GIS programs. The scale of the 

legal descriptions is sufficiently detailed 

for locating the extent and configuration 

of the units. 

In addition, at the public hearing, the 

maps were expanded to wall size to 

assist the public in better understanding 

the proposal. These larger scale maps 

were also provided to individuals upon 

request. Furthermore, we provided 

direct assistance in response to written 

or telephone questions with regard to 

mapping and land ownership within the 

proposed designation.

Comment (4) (State): Caltrans stated 

that clarification is needed where the 

rule reads ‘‘Federal agencies already 

consult’’ on activities that include ‘‘road 

construction and maintenance, right-ofway designation, and regulation funded 

or permitted by the Federal Highway 

Administration (FHWA).’’ Caltrans 

suggested that this be changed to read 

‘‘The FHWA funds new construction 

and does not fund the routine 

operations and maintenance of the State 

highway system.’’

Our Response: We have changed the 

language in the preamble to this final 

rule to reflect this clarification. 

Other Public Comments and Responses 

We address other substantive 

comments and accompanying 

information in the following summary. 

Relatively minor editing changes and 

reference updates suggested by 

commenters have been incorporated 

into this final rule or the economic 

analysis documents, as appropriate. 

Issue 1—Habitat and Species Specific 

Information 

Comment (5): One commenter stated 

that historical populations of the 

salamander are unknown and could, in 

fact, be increasing. One commenter 

stated that many pictographs that exist 

in the traditional tribal domain of the 

Chumash (from Monterey to Malibu) 

display the California tiger salamander. 

The commenter concluded that this 

points to an amphibian that was very 

common among the Chumash culture 

and located over a wide area. Several 

commenters stated that not enough has 

been done to demonstrate that this 

amphibian is threatened. 

Our Response: The historical 

distribution and numbers of CTS in 

Santa Barbara County are not known. 

The CTS in Santa Barbara County is 

presently found in 6 disparate locations 

in northern Santa Barbara County. 

Because this species spends much of its 

life underground, only a portion of the 

total number of animals migrate to pools 

to breed each year and animals do not 

always breed in their natal pool or 

pond, estimates of the total number of 

CTS in Santa Barbara County are 

difficult to make. This difficulty has 

been noted by a number of biologists 

(Jennings and Hayes 1994; Shaffer et al.

1993). 

When making a listing determination, 

we carefully consider the best available 

scientific and commercial data 

regarding the historic and current ranges 

of the taxon under consideration, as 

well as the abundance of the species (if 

known), and the pattern, imminence, 

and magnitude of threats relative to the 

species’ distribution. After completing 

such an analysis for the CTS in Santa 

Barbara County in 2000, we listed the 

Santa Barbara County animals as an 

endangered DPS. Recently, we reevaluated that determination in the 

context of California tiger salamanders 

rangewide. We determined that the best 

available evidence supports a 

threatened listing for a single species 

rangewide. The original analysis and 

our more recent analysis are available in 

our final rules that published in the 

Federal Register on (September 21, 

2000, 65 FR 57242) and (August 4, 2004, 

69 FR 47212). 

Comment (6): One commenter stated 

that there is no scientific proof that 

protecting habitat will protect a species 

from anything. Another commenter 

stated that critical habitat does not 

further the conservation efforts for 

protecting the California tiger 

salamander. 

Our Response: The fundamental 

importance of habitat to wildlife 

populations was established long ago 

(e.g., Grinnell 1917, 1928, as cited in 

Real and Levin 1991; Leopold 1933; 

Noss et al. 1997). ‘‘[All] organisms 

require appropriate habitats if they are 

to survive’’ (Ehrlich 1988, p. 22). 

Therefore, we conclude that the 

protection of habitat is an important 

conservation action. Habitat provides 

species with cover, shelter, protection 

from the elements and predation, and 

space to breed and raise offspring. 

In the case of the California tiger 

salamander, aquatic habitat is needed 

for breeding, and upland habitat is 

needed for foraging, sheltering, and 

protection from predation and the 

elements (such as the hot, dry weather 

typical of Santa Barbara County during 

the non-breeding season). In addition, 

upland habitat located between aquatic 

habitats is essential in maintaining gene 

flow and for recolonization of sites that 

are temporarily extirpated. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68571

The designation of critical habitat can 

play a role in conserving the California 

tiger salamander. Designation ensures 

that federal agency actions affecting 

essential California tiger salamander 

habitat are carefully reviewed so that 

the habitat will remain functional to 

serve its intended conservation role. 

Comment (7): One commenter stated 

that the area designated for critical 

habitat is not threatened. 

Our Response: The known locations 

of CTS in Santa Barbara County fall into 

six disparate areas of Santa Barbara 

County. Habitat in these areas is 

threatened with loss and/or 

fragmentation (i.e., reduction in habitat 

quantity). We are also aware of several 

factors that may reduce habitat quality 

within these areas; the presence of 

introduced species which compete with 

or feed on California tiger salamanders; 

unsuitable grazing (see August 4, 2004, 

Special Rule in 69 FR at 47241), and 

disturbance from past oil production 

cleanup efforts. Each of the six areas has 

a distinctive combination of habitat 

types, breeding pond types, landscape 

features, surrounding land uses, and 

topography. Because of the existing 

population level, and the types of 

threats to these populations, we 

determined that these six areas were 

essential to the conservation of the 

species. 

Comment (8): One commenter stated 

that the Service should find critical 

habitat for the salamander to be not 

warranted. The commenter stated that 

the designation would provide a second 

layer of protection but the listing itself 

provides all that is required to protect 

the species. 

Our Response: The term, ‘‘not 

warranted,’’ applies to petition findings 

and is a result that is possible for a 

petition finding. We do not have a not 

warranted option for a critical habitat 

designation. We can find that critical 

habitat is not prudent but the courts 

have found that the not prudent 

exception is narrow and should be 

sparsely applied. 

The designation means that Federal 

agencies are required to consult with the 

Service on the impacts of actions they 

undertake, fund, or permit on 

designated critical habitat. While in 

many cases, these requirements may not 

provide substantial additional 

protection for most species, they do 

direct the Service to consider 

specifically whether a proposed action 

will affect the functionality of essential 

habitat to serve its intended 

conservation role for a species rather 

than to focus exclusively on whether the 

action is likely to jeopardize the species’

continued existence. We agree, 

however, that even absent a critical 

habitat designation, Federal agencies are 

still required to consult on the impacts 

of their activities on listed species and 

their habitat. 

Comment (9): One commenter stated 

that the determination on page 3073 of 

the proposed designation (January 22, 

2004, 69 FR 3064) under Summary is 

not substantiated. 

Our Response: On page 3073 of the 

proposed rule, it reads ‘‘In summary, we 

propose six areas where populations of 

California tiger salamander are known 

to occur as critical habitat because we 

believe protection of those areas is 

essential to the conservation of the 

species.’’ As required under section 

3(5)(A)(i) of the Act and regulations at 

50 CFR 424.12, we identified those areas 

containing the physical and biological 

features (PCEs) that are essential to the 

conservation of the CTS in Santa 

Barbara County and their need for 

special management considerations or 

protections using the best scientific data 

available. Two of the three peer 

reviewers agree that the areas we are 

designating as critical habitat provide 

for the essential life-cycle needs of the 

CTS in Santa Barbara County and 

provide the habitat components 

essential for the conservation (PCEs) of 

this species. The third reviewer believes 

that the area included in the critical 

habitat designation should be expanded 

to include some unoccupied areas. 

Comment (10): One commenter stated 

that the Service failed to mention that 

most of Unit 2 has historically been 

cultivated. 

Our Response: The fact that an area 

has been cultivated historically does not 

necessarily make it unsuitable for 

California tiger salamanders. However, 

the trend in Santa Barbara County has 

been to move from dry farming and 

grazing to more intensive forms of 

agriculture such as row-cropping and 

vineyards. This trend resulted in the 

rapid loss of California tiger salamander 

upland habitat which was the primary 

threat to the species at the time of listing 

in 2000 (September 21, 2000, 65 FR 

57242). Although we are aware that 

most of Unit 2 (Eastern Santa Maria) has 

historically been cultivated, portions of 

Unit 2 are fallow and provide upland 

habitat for the CTS in Santa Barbara 

County. In addition, some cultivated 

lands in Unit 2 function as important 

connectivity habitat between ponds. 

Issue 2—Costs and Regulatory Burden

Comment (11): One commenter stated 

that the designation is an unneeded cost 

to the taxpayer and that much of the 

habitat features that make up this 

designation are already listed for other 

species within the area. 

Our Response: Section 4 of the 

Endangered Species Act of 1973, as 

amended, and our implementing 

regulations, state that critical habitat 

shall be designated for species listed 

under the Act. 

Certain critical habitat units for other 

listed species in the vicinity of CTS in 

Santa Barbara County may overlap with 

the critical habitat units designated for 

the California tiger salamander. This is 

the case with the final critical habitat 

designation for the La Graciosa thistle 

(Cirsium loncholepis). However, the 

habitat components essential for 

conservation (PCEs) differ for each of 

these species (for detailed information 

on the PCEs for the La Graciosa thistle, 

see the Primary Constituent Element 

section of the final rule (March 17, 2004, 

69 FR at 12559); for detailed 

information on the PCEs for the CTS in 

Santa Barbara County, see the Primary 

Constituent Element section of this 

rule). The habitat components essential 

for conservation of the La Graciosa 

thistle identified in the final critical 

habitat rule would aid in protection of 

California tiger salamander aquatic 

habitat, but the proposed rule does not 

include a sufficient amount of upland 

habitat to sustain a viable population of 

California tiger salamanders (69 FR 

12559). Therefore, the critical habitat 

proposed for the La Graciosa thistly 

does not afford adequate protection for 

the CTS in Santa Barbara County. 

Critical habitat has recently been 

proposed for the California red-legged 

frog (Rana aurora draytonii) (April 13, 

2004, 69 FR at 19626). A portion of the 

California red-legged frog proposed 

critical habitat (Unit 24, Santa Ynez 

River Unit) overlaps with the CTS in 

Santa Barbara County critical habitat 

(Unit 6, Santa Rita Valley). The habitat 

components essential for conservation 

of this species identified in the 

proposed California red-legged frog rule 

would aid in protection of California 

tiger salamander aquatic habitat, but the 

proposed rule does not include a 

sufficient amount of upland habitat to 

sustain a viable population of California 

tiger salamanders (69 FR 19627). 

Therefore, the critical habitat proposed 

for the California red-legged frog does 

not afford adequate protection for the 

CTS in Santa Barbara County. 

Comment (12): One commenter was 

concerned with potential loss of land 

value in urban areas or areas designated 

for development. 

Our Response: The economic analysis 

states that, because only about 1 percent 

of the real estate supply in Santa 

Barbara County is likely to be set aside 

68572 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

for the CTS in Santa Barbara County, 

offsetting compensation measures are 

not expected to have a significant 

impact on the dynamics of the regional 

real estate market. 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 Habitat Conservation 

Plans (HCPs) and issuance of incidental 

take permits. Landowners within the 

boundaries of this critical habitat 

designation will continue to have the 

opportunity to use their property in 

ways consistent with the conservation 

of the CTS in Santa Barbara County. 

Therefore, we believe that, because of 

(1) the high degree of public awareness 

of the species in northern Santa Barbara 

County, (2) the prohibition against take 

of the species both within and outside 

of the designated critical habitat areas, 

and (3) the small percentage of the Santa 

Barbara County real estate supply 

involved, property values are not likely 

to be affected by the critical habitat 

designation in the long term. 

Issue 3—Property Rights 

Comment (13): Several commenters 

expressed concern that the critical 

habitat designation would limit their 

land use practices or result in the loss 

of their lands. Specifically, one 

commenter stated that the government 

is proposing to condemn this private 

land or reduce its value to the owners. 

Another commenter stated that this rule 

would deny ranchers and farmers the 

use of their land. Another commenter 

was concerned that the designation 

would result in the loss of prime 

agricultural soils that are intensely 

farmed. One commenter was concerned 

with potential limits on irrigation and 

soil compaction. One commenter stated 

a concern regarding the additional time 

and money that would be needed in 

areas designated as critical habitat for 

oil spill cleanup. 

Our Response: These comments 

reflect a misunderstanding of regulatory 

effect of critical habitat designation. 

Critical habitat designations do not 

constitute a burden in terms of Federal 

laws and regulations on private 

landowners carrying out private 

activities. Unless a Federal approval or 

permit is required, or Federal funds are 

involved with a project proposed on 

private property, the critical habitat 

designation poses no regulatory burden 

for private landowners, and in 

particular, should not affect farming and 

ranching activities on private lands. 

Similarly, absent a future Federal nexus, 

the designation should not affect future 

land use plans. Routine ranching 

activities are also exempt from take 

under the 4(d) rule. 

While the designation of critical 

habitat does not constitute a regulation 

of private lands, the listing of the CTS 

in Santa Barbara County under the 

Endangered Species Act may affect 

private landowners. Actions which 

could result in take of California tiger 

salamanders (e.g., ground disturbing 

activities such as soil compaction or soil 

remediation activities) require an 

exemption from take following 

consultation under Section 7 or and 

incidental take permit under section 10 

of the Act. Because the CTS in Santa 

Barbara County was listed in 2000, 

proposed actions on private lands that 

require Federal authorization or funding 

that may affect the species already 

undergo consultation under Section 7 to 

ensure that their actions are not likely 

to jeopardize the continued existence of 

the species. Future consultations 

involving private lands will also analyze 

the effect of the proposed action on 

designated critical habitat. 

The Act also requires recovery 

planning for listed species. Recovery 

planning for CTS in Santa Barbara 

County may include recommendations 

for land acquisition or easements 

involving private landowners. These 

efforts would be undertaken with the 

cooperation of the landowners. We also 

work with landowners to identify 

activities and modifications to activities 

that will not result in take, to develop 

measures to minimize the potential for 

take, and to provide authorizations for 

take through section 7 and 10 of the Act. 

We encourage landowners to work in 

partnership with us to develop plans for 

ensuring that land uses can be carried 

out in a manner consistent with the 

conservation of listed species and will 

continue to do so following the 

designation to preserve the conservation 

value of critical habitat while 

compatible development proceeds. 

Issue 4—Mapping Methodology 

Comment (14): Several commenters 

stated that the acreage proposed to be 

designated as critical habitat was too 

extensive. 

Our Response: We used the best 

scientific data available in the 

designation of critical habitat for the 

CTS in Santa Barbara County, as per 

section 3(5)(A)(i) of the Act and 

regulations at 50 CFR 424.12. The areas 

we are designating as critical habitat 

have the physical and biological 

features (primary constituent elements 

or PCEs) that are essential to the 

conservation of the CTS in Santa 

Barbara County and that may require 

special management or protections. Few 

populations of the California tiger 

salamander exist in Santa Barbara 

County, and the threats to these 

populations are substantial. The six 

areas we are designating as critical 

habitat are essential to conserve these 

populations and to the overall 

conservation of the species. Each of the 

three peer reviewers agree that the areas 

we are designating as critical habitat 

provide for the essential life-cycle needs 

of the California tiger salamander and 

provide the habitat components 

essential for the conservation (PCEs) of 

this species. One of the three believes 

that the area included in the critical 

habitat designation should be expanded 

to include unoccupied areas in some 

cases. 

Comment (15): Several commenters 

referred to additional acreage or, 

specifically, an additional 4,000 ac 

(1,619 ha) being protected for the CTS 

in Santa Barbara County by this 

designation. 

Our Response: We are not aware of 

the acreage or area to which the 

commenters are referring. To our 

knowledge, no lands in Santa Barbara 

County are currently set aside for the 

protection of the California tiger 

salamander. 

Comment (16): One commenter stated 

that lines drawn on the map are 

arbitrary. Another commenter stated 

that the acreage proposed for critical 

habitat has not been substantiated. 

Our Response: 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.

In determining areas that meet the 

definition of critical habitat for the CTS 

in Santa Barbara County, we used the 

best scientific and commercial data 

available. We have reviewed the overall 

approach to the conservation of the CTS 

in Santa Barbara County recommended 

to us by the science subteam of the 

recovery team for the CTS in Santa 

Barbara County (Service files 2002–

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68573

2003). We have also reviewed available 

information that pertains to the habitat 

requirements of this species. This 

material includes: data in reports 

submitted during section 7 

consultations and by biologists holding 

section 10(a)(1)(A) recovery permits, 

research published in peer-reviewed 

articles and presented in academic 

theses and agency reports, and regional 

GIS coverages. Few populations of the 

California tiger salamander exist in 

Santa Barbara County and the protection 

of these populations is essential to the 

survival and recovery of the species as 

a whole. The six areas we are 

designating as critical habitat contain 

the essential primary constituent 

elements for the conservation of these 

populations and for the conservation of 

the entire species. 

Comment (17): One commenter stated 

that Unit 4 includes approximately 27 

ac (11 ha) of cultivated vineyards 

directly south of Hwy 101 which should 

not be included in the critical habitat 

designation. 

Our Response: Vineyards can be used 

by California tiger salamanders for 

dispersal purposes (i.e., they provide 

connectivity between aquatic and 

upland habitats) and, if small mammal 

burrows are present, sheltering and 

foraging. The 27 ac (11 ha) of cultivated 

vineyards in Unit 4 provide essential 

connectivity between the known ponds 

within that critical habitat unit. 

Comment (18): One commenter 

opposed the inclusion of the Foley 

property, which is located on the edge 

of Unit 6 (Santa Rita Valley). This land 

is in existing vineyards. The commenter 

presumed that this inclusion was the 

result of a mapping error. 

Our Response: This vineyard was 

included as a result of a mapping error. 

We have removed this vineyard in the 

final critical habitat map for Unit 6. 

Comment (19): One commenter 

requested that Highway 246 and its 

shoulders be excluded from the 

designation. 

Our Response: We have removed 

Highway 246 and its shoulders (or 

ROWs) from this designation (see 

Criteria Used To Identify Critical 

Habitat section). 

Comment (20): One commenter stated 

that it is unclear what is meant by 

‘‘must hold water for a minimum of 12 

weeks.’’

Our Response: We needed to specify 

a timeframe to identify how long water 

should remain in these ponds in order 

to support successful California tiger 

salamander metamorphosis. Twelve 

weeks was selected as the minimum 

ponding interval that will allow at least 

some California tiger salamanders to 

metamorphose. This assumes that eggs 

are laid late in the season when water 

temperatures are higher and 

development occurs at the maximum 

rate. When eggs are laid in November 

through January at lower water 

temperatures, California tiger 

salamanders probably cannot 

metamorphose within 12 weeks. Our 

goal in setting this criterion is to 

separate those ponds that, in an average 

or better year, can potentially produce 

California tiger salamander metamorphs 

from those ponds that are too ephemeral 

to be successful breeding sites in any 

but the wettest years. 

Comment (21): One commenter asked 

what period of time is used to determine 

a year of ‘‘average’’ rainfall. The 

commenter asked how we determined 

that a particular site retained water for 

12 weeks during a year of average 

rainfall. The commenter asked if there is 

a reference year when rainfall was at or 

near average. The commenter asked 

what the source is for the rainfall and 

aquatic habitat site information. 

Our Response: Rainfall is commonly 

calculated using the average rainfall for 

the rainy season rather than for a full 

calendar year. In California, 

precipitation generally occurs from late 

fall to early spring. Average rainfall for 

northern Santa Barbara County for the 

1948–1949 through 2002–2003 rainy 

seasons averaged about 12.9 inches (in) 

(32.8 centimeters (cm)) (range, 4.3 in 

(10.9 cm) in 1971–1972 to 32.5 in (82.6 

cm) in 1997–1998) based on the rainfall 

station at Santa Maria, California

(http://www.wrcc.dri.edu/summary/

climsmsca.html). We did not base our 

approach on a ‘‘reference year.’’ Our 

goal was to separate those ponds that, in 

an average or better year, can potentially 

produce California tiger salamander 

metamorphs from those ponds that are 

too ephemeral to be successful breeding 

sites in any but the wettest years. A 

pond that dries quickly in a ‘‘dry’’ year 

may still represent good habitat in a 

wetter year. Our minimum 12-week 

requirement is based on observations by 

Sam Sweet in Santa Barbara County (Dr. 

Sam Sweet, University of California at 

Santa Barbara, pers. comm. 2004). 

Similarly, Feaver (1971) reported that in 

Fresno County metamorphs leave pools 

60 to 94 days (about 8–12 weeks) after 

eggs were laid. However, the length of 

time needed can be much longer in 

other parts of the range of the California 

tiger salamander. For example, in 

Monterey County metamorphs almost 

universally remained in ponds until 

May 1 (approximately 120 days (about 

17 weeks) after eggs were laid) (Peter 

Trenham, U.S. Geological Survey, pers. 

comm. 2004). 

Comment (22): One commenter asked 

what the time frame is for a potential 

pool site to be considered viable or 

‘‘essential,’’ and at what point does that 

expire (e.g., what if a pond held water 

for 12 weeks one time 7 years ago?). 

After how many years of below-average 

rainfall does a site become excluded 

from ‘‘aquatic habitat?’’

Our Response: As previously stated, a 

pond that dries quickly in a ‘‘dry’’ year 

may still be good habitat in a wetter 

year. With this designation, we did not 

include habitats that are too short lived. 

We have no examples of sites that are 

not considered aquatic habitat for 

California tiger salamanders in Santa 

Barbara County because they have not 

held water for long periods of time. 

Because we have no examples of such 

circumstances, we have not specified a 

time frame which might apply.

Comment (23): One commenter asked 

what grade or level is the cutoff point 

in elevation that is considered to be too 

steep for salamanders to cross. 

Our Response: We did not use a 

specific criterion in terms of degrees of 

slope in our analysis because of the 

complex interaction between variables. 

In general, we used slope as a surrogate 

estimator for soil depth and soil 

moisture retention, when combined 

with knowledge of vegetation, aspect, 

and underlying geology. For example, 

an extensive south-facing hillside with 

chaparral and bedrock outcrops at a 

lesser slope might be excluded, whereas 

a north-facing slope with oaks and with 

greater slope might not be excluded. 

The south-facing slope might have too 

few small mammal burrows with too 

little residual soil moisture in late 

summer and fall, and thus, would not be 

suitable upland habitat for California 

tiger salamanders. 

Comment (24): One commenter 

requested a detailed list of each type of 

vegetation that would be considered 

‘‘unsuitable’’ and asked how dense this 

vegetation would need to be to exclude 

salamanders from passing through it or 

using the habitat around it. 

Our Response: Regarding vegetation 

types, our specific goal was to include 

habitat that California tiger salamanders 

would clearly use (grassland, oak 

woodland, oak savanna, long-lasting 

ephemeral pools), and exclude habitats 

that were marginal and thus, not critical 

to the conservation of the species. 

However, because a patch or swath of 

marginal habitat nested within high 

quality habitat could not be excluded, 

most of these types of exclusions were 

made along the margins of units. 

Because of this type of site-by-site 

variation, it is not practicable for us to 

develop a complete list of index plants. 

68574 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

Regarding vegetation density, it is not 

practical for us to develop a specific 

criterion or vegetation thickness that 

would prevent salamanders from 

dispersing through vegetation. Density 

would be much greater to prevent 

dispersal in grassland habitat versus 

chaparral. We are unable to provide 

formal criteria to determine vegetation 

density due to the variation of 

vegetation present throughout the range 

of the California tiger salamander. 

Comment (25): One commenter 

requested a detailed list of every type of 

geologic barrier that is excluded from 

the proposed critical habitat rule. 

Our Response: An index of soil types 

or geologic formations cannot be 

developed because these categories (as 

formally defined by geologists, even at 

the finest scale of resolution) are rather 

broad. For example, lateral and vertical 

variation in the composition of the Paso 

Robles, or the Sisquoc, or the Careaga 

formations creates a range of suitable to 

unsuitable local soils, which is further 

complicated by slope, aspect, and 

geomorphological structure. The exact 

same bedrock on the crest of an 

anticline (a geological term for an arch 

of layered rock) will make for very 

different conditions than would occur at 

the bottom of a syncline (a trough of 

layered rock, opposite of an anticline). 

Because of these broad categories and 

variations in geological formations, we 

cannot provide an index of every type 

of geologic barrier. 

Comment (26): One commenter 

requested a list of each and every type 

of agricultural barrier that would have 

no potential for restoration. The 

commenter asked how close an 

otherwise excluded agricultural barrier 

would need to be in order to be 

included because it is ‘‘next’’ to a 

known breeding pond. The commenter 

asked for clarification of the statement 

that an agricultural barrier would be 

included if it provided upland refugia 

for the California tiger salamander 

around a known pond. The commenter 

asked if this includes all or only some 

of the ‘‘agricultural barriers.’’ The 

commenter asked how the 

determination was made that an 

otherwise excluded agricultural barrier 

be included because it is important for 

connectivity between known breeding 

ponds. The commenter asked how large 

an area would need to be included to 

ensure connectivity between known 

breeding locations. 

Our Response: We have already 

excluded agricultural barriers that we 

determined had ‘‘no potential for 

restoration.’’ For example, we drew 

boundaries that ran along the edge of 

agricultural fields. In addition, we 

excluded most, but not all, areas of 

frequently harvested agricultural lands. 

We determined which agricultural lands 

in association with known breeding 

ponds to include in the critical habitat 

designation on a site-by-site basis. We 

based our determination on the 

importance of agricultural land as either 

‘‘upland refugia’’ (defined as the 2,200-

ft (671 m) area surrounding a breeding 

pond) or as connectivity habitat 

between ponds. We did not consider 

agricultural lands more than 2,200 ft 

(671 m) from known breeding ponds to 

be upland refugia; therefore, we did not 

include them in critical habitat. We also 

excluded areas closer than 2,200 ft (671 

m) if we determined that the areas did 

not contain the PCEs for the CTS in 

Santa Barbara County. 

Using aerial photos, we also evaluated 

each agricultural area to identify 

barriers to California tiger salamander 

movements and agricultural areas of 

connectivity between breeding ponds. 

We considered ponds within 0.7 miles 

(mi) (1.1 kilometers (km) of each other 

to be within the dispersal distance of 

California tiger salamanders, therefore 

having connectivity value. If there was 

agricultural land between two ponds 

within 0.7 mi (1.1 km) of each other, we 

included the land because of its 

connectivity value unless there was a 

barrier that would prevent salamander 

movement between the ponds (e.g., a 

heavily traveled highway). For a more 

detailed discussion, see the Criteria 

Used To Identify Critical Habitat 

section.

Accordingly, lands that are currently 

designated as critical habitat provide 

PCEs under current management 

practices. These lands were designated 

to provide protection from changes in 

management practices that would result 

in adverse modification of the critical 

habitat. 

Comment (27): One commenter 

requested a complete list of each and 

every ‘‘other’’ type of land that is 

‘‘unlikely to contain PCEs essential for 

California tiger salamander 

conservation’’ so that this criteria can be 

replicated by a person outside of the 

Service.

Our Response: It is not practicable for 

us to develop a complete list of each 

and every ‘‘other’’ type of land that is 

unlikely to contain PCEs. Determining if 

specific lands within the critical habitat 

boundaries do not have the PCEs for the 

California tiger salamander boundaries 

will have to be conducted on a case-bycase basis. We excluded areas that we 

could identify do not contain PCEs for 

the California tiger salamander. 

However, the PCEs for the California 

tiger salamander include lands essential 

for connectivity. Some lands which do 

not appear to provide suitable breeding 

or foraging habitat for the California 

tiger salamander are essential for 

connectivity (i.e., cultivated land). 

Protecting the ability of California tiger 

salamanders to move freely across the 

landscape in search of breeding ponds 

is essential in maintaining gene flow 

and for recolonization of sites that are 

temporarily extirpated. 

Comment (28): One commenter 

requested a detailed map of all ponds 

throughout the range of the CTS in 

Santa Barbara County. The commenter 

requested a copy of the science or 

references that were used to make this 

determination. 

Our Response: The California Tiger 

Salamander Habitat map can be 

purchased through the County of Santa 

Barbara (South Coast, 123 East 

Anapamu Street, Santa Barbara, CA 

93101–2058; North Coast, 624 W. Foster 

Road, Santa Maria, CA 93455–3623). 

The map was created in spring of 2000 

by biologists who had conducted 

California tiger salamander surveys 

throughout Santa Barbara County 

(references provided with map). 

Comment (29): One commenter 

requested that the land ratio formula be 

re-evaluated on the basis of individual 

applications rather than a ‘‘one shoe fits 

all’’ approach. 

Our Response: We did not use a ‘‘one 

shoe fits all’’ approach. Rather, we 

evaluated lands within each unit 

separately, using the best scientific and 

commercial data available, to determine 

areas that best provide essential habitat 

for the California tiger salamander (see 

also response to comment 16). For each 

unit, we used 2,200 ft or 350 ac as a 

guide for the amount of upland habitat 

around known breeding locations to be 

mapped as critical habitat for the 

purposes of preserving California tiger 

salamanders within small mammal 

burrows (PCE 2). However, although 

various studies provide an 

approximation of the distances that 

California tiger salamanders can move 

from their breeding ponds in search of 

suitable upland refugia, we recognize 

that upland habitat features will 

influence California tiger salamander 

movements in a particular landscape. 

Therefore, where we had site-specific 

information on those features such as 

land use, topography, and geologic 

landform, we altered critical habitat 

lines to reflect that information. 

Comment (30): One commenter 

suggested including additional 

unoccupied habitat in the final rule, 

such as pond watersheds, upland 

dispersal and burrowing areas, and 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68575

potentially suitable breeding ponds that 

are not occupied. 

Our Response: Although one peer 

reviewer stated that including some 

unoccupied areas in the designation 

would be appropriate, the other peer 

reviewers agreed with our approach of 

including occupied areas only and 

stated that the areas we are designating 

provide for the essential life-cycle needs 

of the species, and provide the habitat 

components essential for the 

conservation (PCEs) of this species. 

Based on recommendations from the 

science subteam of the recovery team for 

the CTS in Santa Barbara County 

(Service files 2002–2003), and our 

analysis of the best available scientific 

and commercial data, we determined 

that these areas or units provide for the 

essential life-cycle needs of the species, 

and provide the habitat components 

essential for the conservation of the 

California tiger salamander. Therefore, 

we do not believe that it is necessary to 

the conservation of the California tiger 

salamander to designate critical habitat 

in unoccupied areas. 

Comment (31): One commenter stated 

that the Service failed to explain why 

the one known pond in Unit 6 (Santa 

Rita Valley) was left out of the 

designation and why it is not 

considered essential to the conservation 

of the California tiger salamander. The 

commenter stated that, although the 

pond is isolated, it is one of the two 

known breeding populations in that 

valley and should be included. 

Our Response: This pond likely has 

little or no connectivity due to the 

distance between it and other known or 

potential breeding ponds (over 2 miles), 

which is further than California tiger 

salamander dispersal distance. In 

addition, this pond occurs in a separate 

drainage and is separated from the other 

ponds by a steep ridge. Because of the 

isolation of the human-made pond in 

Unit 6, we do not believe it contains the 

primary constituent elements for the 

California tiger salamander and did not 

include it within the boundaries of 

critical habitat. 

Issue 5—Economic Analysis 

Comment (32): One commenter stated 

that, as written in the proposal, the 

economic analysis of effects is biased 

regarding small businesses. 

Our Response: As set forth in our 

regulations found at 50 CFR 424.19, the 

economic analysis is conducted after 

critical habitat has been proposed in a 

given area. As required 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), we 

published a notice of rulemaking for 

this proposed rule, and we prepared and 

made 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). Please refer to the 

Required Determinations section 

contained in this final rule for more 

information. 

Comment (33): Several commenters 

stated that an economic analysis should 

be completed and shared with the 

community prior to designating critical 

habitat.

Our Response: We routinely prepare a 

draft of the economic analysis (DEA) on 

proposed critical habitat rules and 

release it for public comment before 

issuing a final critical habitat rule. We 

released the DEA for the California tiger 

salamander in Santa Barbara County on 

October 7, 2004 (69 FR 60138) and 

accepted comments on the DEA from 

that date through November 8, 2004. 

This information has been used in our 

final determination. 

Comment (34): A few commenters 

were concerned with the short timeline 

for the economic analysis to be 

completed. The commenters reiterated 

that the economic analysis needs to be 

accurate and complete. 

Our Response: We frequently 

designate critical habitat under short, 

court-ordered deadlines. Even when our 

analyses are conducted under short time 

frames, we use the best scientific and 

commercial data available. 

Comment (35): Several commenters 

stated that the public should have the 

opportunity to comment on the 

economic analysis. 

Our Response: As part of the process 

by which all critical habitat rules are 

finalized, we solicit data and comments 

from the public on all aspects of critical 

habitat proposals, including data on the 

economic and other impacts of 

designation. We released the DEA for 

the California tiger salamander in Santa 

Barbara County on October 7, 2004 (69 

FR 60138) and accepted comments on 

the DEA from that date through 

November 8, 2004. 

Comment (36): One commenter 

recommended that the DEA follow the 

methodology used by the California 

Resource Management Institute in 

examining economic impacts resulting 

from critical habitat designation for the 

California Coastal Gnatcatcher. 

Our Response: On August 15, 2003 

the California Resource Management 

Institute (CRMI) released an economic 

analysis, authored by Dr. Sunding, of 

critical habitat designation entitled 

‘‘Economic Impacts of Critical Habitat 

Designation for the Coastal California 

Gnatcatcher’’ (referred to as the CRMI 

study). The CRMI study relies on an 

economic model developed to assess the 

impacts of reductions in real estate 

product (e.g., residential and 

commercial buildings) in areas 

proposed for designation as critical 

habitat for the Coastal California 

Gnatcatcher. 

Despite addressing a different critical 

habitat rulemaking, the California Tiger 

Salamander Draft Economic Analysis 

(CTS DEA) and the CRMI study share a 

number of important analytical and 

methodological similarities. First, both 

studies agree that the primary economic 

impacts to real estate will result from (1) 

reduced real estate development, (2) 

project modification and regulatory 

compliance costs associated with 

species conservation activities, and (3) 

project delay. 

Second, both the CRMI approach and 

the DEA rely on demographic and land 

use projections obtained from public 

agencies to estimate future development 

pressure and the associated loss of 

development opportunities due to 

habitat set aside. Third, both approaches 

assume that all real estate development 

projects will be affected, regardless of 

the presence of a Federal nexus. 

Finally, both approaches estimate the 

total costs of species conservation 

activities without subtracting the impact 

of pre-existing baseline regulations (i.e.,

the cost estimates are fully coextensive). It is important to note that in 

previous comparisons of the results of 

analyses prepared by the Service and 

CRMI, much of the difference in impact 

estimates resulted from the use of 

different assumptions regarding the 

necessity of a Federal nexus to generate 

costs and different assumptions about 

counting costs attributable coextensively to baseline regulations (i.e.,

in previous Service analyses baseline 

costs were not counted). 

The DEA also includes a number of 

additional economic categories not 

evaluated in the CRMI study but these 

categories represent a relatively small 

component of the total economic impact 

(these include costs associated with 

California Environmental Quality Act 

(CEQA) as well as those incurred by 

viticulture, road construction, utilities 

and airport facilities). 

Two analytical differences exist 

between the methodology applied in the 

DEA and the CRMI approach. 

1. Discounting: The two studies apply 

a different approach to evaluating 

economic impacts that occur over time. 

Specifically, the DEA applies a positive 

real discount rate to costs that occur in 

the future to account for the affect of the 

68576 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

time value of money. In contrast, the 

CRMI study assumes that the real 

discount rate will equal real property 

appreciation, and thus the timing of 

development has no impact on 

economic value. (The CRMI study does 

assume a positive discount rate to 

calculate the economic impact of delay.) 

2. Consumer Surplus: The DEA 

concludes that the California tiger 

salamander in Santa Barbara County 

critical habitat designation will 

primarily affect individual property 

owners/developers and not market 

prices or consumers of real estate. In 

contrast, CRMI study concludes that the 

Gnatcatcher critical habitat designation 

will lead to an increase in real estate 

market prices and thus a reduction in 

consumer surplus. The CRMI study 

calculates this reduction in consumer 

surplus and includes it in the total 

economic impact attributable to 

Gnatcatcher critical habitat designation. 

Chapter 3 of the DEA evaluates the 

potential for the California tiger 

salamander in Santa Barbara County 

critical habitat designation to reduce 

consumer surplus by increasing real 

estate market prices. The analysis 

concludes that critical habitat 

designation will not affect regional real 

estate markets or prices, and thus 

consumer surplus, because the total 

reduction in land supply is expected to 

represent a very small component of 

total future market demand in the 

region. Specifically, the upper-bound 

estimate of developable acres of habitat 

set-aside within critical habitat 

designation is estimated at about 1.1 

percent of future market growth in Santa 

Barbara County through 2030. Supply 

adjustments by developers, including 

increased density and/or project 

reconfigurations, are likely to further 

cancel the market impact of the 

relatively small land supply reduction 

created by critical habitat designation. 

Comment (37): Two commenters 

states that the economic analysis needs 

to calculate the loss in future earnings 

(or lost investment) from land that can 

not be developed as a result of critical 

habitat designation. 

Our Response: Potential earnings from 

real estate are reflected in real estate 

prices. Specifically, in a competitive 

market, the price of land is the best 

reflection of its future earning potential. 

The DEA calculates lost earnings from 

real estate by estimating land value 

losses associated with land that is 

projected to be dedicated as habitat 

rather than developed for profit. 

Specifically, the DEA assumes that each 

acre of projected real estate 

development within critical habitat 

designation will require 3 acres of land 

be set aside as habitat (i.e., a 3-to-1 

offsetting compensation ratio). The 

prevailing market value of the habitat 

set aside is lost when the land is 

designated as habitat because the land 

no longer has earning potential. Land 

value losses are described in Chapter 3 

of the DEA and presented in Table 6.

Comment (38): One commenter stated 

that the DEA assumption of a 3-to-1 

offsetting compensation ratio is an 

underestimate. 

Our Response: The Service has not 

conducted a formal consultation 

concerning residential development 

effects on California tiger salamanders 

in Santa Barbara County and their 

habitat. The Service has conducted one 

consultation involving a construction 

project which involved only minimal 

habitat removal and no set-aside. Due to 

the lack of historical precedent, the DEA 

relies on an offsetting compensation 

ratio based on interviews with Service 

field biologists. The DEA acknowledges 

that actual offsetting compensation 

requirements are unknown but notes 

that the assumption of a 3-to-1 ratio is 

consistent with ratios resulting from 

consultations on other listed species 

with similar habitat needs and lies 

within the range of used in other critical 

habitat designation economic analyses. 

The actual offsetting compensation ratio 

used in any particular case will depend 

on a variety of factors unique to the 

circumstance at hand. The 3-to-1 

assumption used in the DEA represents 

an average. 

Comment (39): A number of 

comments state that the DEA does not 

rely on appropriate real estate values to 

estimate land value losses from critical 

habitat designations. 

Our Response: To calculate land 

values for acreage expected to support at 

least one unit per acre, the DEA relies 

on the median sale price of a newlyconstructed home in Santa Barbara 

County in 2004, as reported by 

DataQuick Information Systems. For 

acreage expected to support less than 

one unit per acre, the DEA relies on the 

median sale price of raw residential 

land in Santa Barbara County, as 

reported by DataQuick. As shown in 

Table 3 of the DEA, land values vary by 

the density of expected development. 

The Service maintains that DataQuick is 

an acceptable data source and that the 

Santa Barbara County market area is 

appropriate given the extent of the 

critical habitat designation. 

Comment (40): One comment states 

that the land value appreciation 

forecasted by the DEA is overly 

optimistic. 

Our Response: To estimate future 

appreciation in home values, the DEA 

relies on long-term historical trends 

which are appropriate for the 26-year 

forecast utilized by the DEA. In 

particular, the DEA relies on the average 

of a 10-year and a 20-year trend of 

repeat sales and refinancing of the same 

properties in California. The price 

indexing of the same properties over 

time controls for potential changes in 

housing quality, location and size over 

time. These data were obtained from 

U.S. Department of Labor, Office of 

Federal Housing Enterprise Oversight. 

Comment (41): In order to quantify 

lost development opportunities within 

critical habitat designations, the DEA 

must rely on a projection of future 

demand for real estate within critical 

habitat designations. One commenter 

stated that the use of aggressive growth 

projections is arbitrary and that 100 

percent buildout is not realistic. 

Further, the comment states that in-fill 

is likely to offset development in 

‘‘greenfield’’ areas. 

Our Response: The DEA endeavors to 

estimate economic impacts of a critical 

habitat designation using a conservative 

(i.e., overestimate rather than 

underestimate) approach. For this 

reason, the analysis relies upon 

aggressive development projections, 

generated by Santa Barbara County 

Planning and Development, which 

suggest that full buildout is realistic. It 

should be noted that the full buildout 

scenario relied upon by the DEA 

assumes that on-site habitat set aside for 

California tiger salamander reduces the 

development possible within a critical 

habitat designation. The assumption 

that in-fill will not satisfy projected 

demand is also made in an effort to 

estimate impacts conservatively. 

Comment (42): Two commenters 

stated that urban growth boundaries in 

Santa Maria and Orcutt may prevent 

development projected by the DEA. 

Our Response: The legal requirements 

of the growth boundary ordinances are 

complex and it is unclear how they may 

limit real estate development over the 

long term. For example, the Orcutt 

Community Plan allows for changes in 

growth limitations if in-fill development 

opportunities begin to disappear. In an 

effort to conservatively estimate the 

economic impacts resulting from 

forgone real estate development, the 

DEA implicitly assumes that local 

policies regarding growth will adapt to 

satisfy real estate demand as forecasted 

by the County.

Comment (43): One comment states 

that the fractional ownership of land 

within CHD may result in project 

infeasibility due to offsetting 

compensation for impacts. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68577

1Executive Order 12866, ‘‘Regulatory Planning 

and Review,’’ September 30, 1993; U.S. Office of 

Management and Budget, ‘‘Circular A–4,’’

September 17, 2003, available at http://

www.whitehouse.gov/omb/circulars/a004/a-4.pdf.

2 Ibid.

Our Response: While fractional land 

ownership may impair project 

feasibility in some cases, the Service 

maintains that economic losses are 

accurately measured. A number of 

options are available to project 

proponents unable to go forward with a 

project due California tiger salamander 

conservation measures, including (1) 

buy adjacent land for habitat set-aside 

for project expansion, (2) buy off-site 

land for habitat set-aside or (3) scale the 

project to allow for habitat set-aside. 

Over the long term it is very unlikely 

that any land parcel will be rendered 

totally useless by a critical habitat 

designation (a feasibility study of each 

parcel within critical habitat is beyond 

the scope of the DEA). While additional 

transaction costs and planning costs 

may be incurred, these additional costs 

are likely to be minor relative to the loss 

in land value captured by the DEA. 

Comment (44): One commenter stated 

that development projects currently 

undergoing the planning process are not 

sufficiently considered by the DEA. 

Our Response: The DEA does not 

examine each future development 

project individually. Future 

development forecasts are based on 

aggregate-level growth projections 

provided by Santa Barbara County 

Planning and Development. This 

approach allows the Service to estimate 

impacts farther into the future (i.e., 26 

years) than a method that relies on 

assessing currently planned projects. 

Although not identified by name, 

impacts to development projects such as 

the Bradley Ranch are included in the 

DEA estimates, because these projects 

represent the fulfillment of near-term 

growth projected by the County. 

Comment (45): One commenter 

suggested that economic impacts should 

be estimated in perpetuity. 

Our Response: Page 17 of the DEA 

states that ‘‘the analysis looks 

prospectively at future costs associated 

with the listing, critical habitat, and 

other related (California tiger 

salamander) protections * * * based on 

activities that are ‘‘reasonably 

foreseeable,’’ including but not limited 

to activities that are currently 

authorized, permitted or funded, or for 

which proposed plans are currently 

available to the public.’’ The DEA time 

horizon corresponds to available 

population and housing forecasts 

available from Santa Barbara County. 

The Service does not have sufficient 

data to estimate future impacts in 

perpetuity with any level of certainty. 

However, it should be noted that land 

value losses represent losses in 

perpetuity since property values 

account for potential earnings in 

perpetuity. 

Comment (46): One commenter stated 

that development of all second tier 

agricultural land by 2015 is unlikely. 

Our Response: Page 35 of the DEA 

states that ‘‘Second-tier agricultural 

lands are assumed to convert to 

residential use * * * beginning in 

2015’’ and that this ‘‘allows 10 years for 

agricultural preservation contracts (i.e., 

Williamson Act) to be cancelled.’’ The 

2015 date indicates when contracts will 

begin to expire. The analysis does not 

assume that all second-tier agricultural 

lands will be developed by 2015, but 

rather that they will develop between 

2015 and 2030. 

Comment (47): Various commenters 

suggested that the impacts of CHD on 

the CEQA process for projects located 

within CHD are not estimated correctly, 

some stating that costs are overstated 

and others asserting that they are 

understated. 

Our Response: The DEA estimates 

CEQA-related costs by assuming that 

projected future projects that might have 

qualified for a negative declaration or an 

exemption under CEQA will undergo an 

Environmental Impact Report and 

experience higher CEQA costs after a 

critical habitat designation. The 

elevated CEQA review and associated 

cost is attributable to new information 

provided by a critical habitat 

designation. Projected future projects 

are based on historical CEQA trends in 

Santa Barbara County, as reported by 

the State of California’s CEQAnet 

database. Costs associated with various 

CEQA documents are based on 

interviews with a number of consulting 

firms specializing in CEQA analyses 

(see footnote 39 in the DEA for the 

names of these firms). 

Comment (48): One commenter stated 

that project delay would not result from 

CHD.

Our Response: The DEA does not 

assume that all projects will experience 

delays. Rather, the DEA calculates delay 

costs based on the assumption that only 

projects commencing in the first year 

after a critical habitat designation will 

experience delays. These projects may 

not have planned to conduct California 

tiger salamander conservation activities. 

Projects beginning more than 12 months 

after a critical habitat designation will 

avoid delay by incorporating 

consideration of a critical habitat 

designation in standard project 

planning. 

Comment (49): One commenter called 

into question the use of a 7 percent 

discount rate. 

Our Response: The most current 

Office of Management Budget (OMB) 

guidance on discounting practices to be 

used in regulatory analysis is provided 

in OMB Circular A–4.1 OMB circular A–

4 states the following:

‘‘* * * A real discount rate of 7 percent 

should be used as a base-case for regulatory 

analysis. The 7 percent rate is an estimate of 

the average before-tax rate of return to private 

capital in the U.S. economy. It is a broad 

measure that reflects the returns to real estate 

and small business capital as well as 

corporate capital. It approximates the 

opportunity cost of capital, and it is the 

appropriate discount rate whenever the main 

effect of a regulation is to displace or alter 

the use of capital in the private sector.’’ 2

Comment (50): One commenter stated 

that cattle grazing impacts should be 

addressed. 

Our Response: Impacts to cattle 

ranching are addressed on page 50 of 

the DEA. 

Comment (51): One commenter stated 

that the DEA fails to consider the 

multiplier effects associated with lost 

investment opportunities as the critical 

habitat designation affects industry, 

residential, commercial, retail, and 

agricultural land uses. 

Our Response: Indirect ‘‘multiplier’’

effects are sometimes used to analyze 

the impact of major development 

projects or other economic activities on 

an economic region, often defined as a 

county or multi-county area. The 

localized nature of critical habitat 

designations makes analysis using 

multipliers difficult, because multiplier 

data is unreliable at the sub-county 

level. In addition, real estate 

development, the primary sector 

expected to be affected by a critical 

habitat designation, is unlikely to be 

affected at the county level (see 

discussion in Chapter 3 of the DEA). 

That is, although construction activity 

may be redistributed throughout Santa 

Barbara County as a result of CHD, it is 

not expected to decline overall. 

Comment (52): Several commenters 

stated that the DEA inadequately 

addresses impacts to small businesses. 

Our Response: Appendix A analyzes 

impacts to small businesses in the land 

development and viticulture sectors. As 

described in this appendix, the DEA 

uses the best available data to identify 

the number of firms that might be 

affected by the critical habitat 

designation and to estimate impacts to 

those firms based on estimates of total 

impacts. Because it is nearly impossible 

to identify the specific small businesses 

68578 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

that will undertake development and 

viticulture projects within the critical 

habitat designation over a 26 year 

period (e.g., 115 small developers 

currently exist in Santa Barbara 

County), the assumptions relied upon in 

the analysis are reasonable. 

Comment (53): One commenter stated 

that the DEA fails to fully consider 

impacts associated with highway 

maintenance, such as us 101, Highways 

246 and 135, which run through the 

middle of the critical habitat 

designation. 

Our Response: The primary focus of 

the DEA is to provide decision makers 

with an estimate of the impacts 

associated with the proposed 

rulemaking. Understanding the 

magnitude of historical impacts helps 

decision makers place future costs in 

context. The DEA estimates historical 

costs associated with viticulture, road 

construction, utilities and infrastructure 

projects, and the airport district 

development project using the best 

publicly-available data (see Chapters 4 

and 5 of the DEA). 

Comment (54): A number of 

commenters stated that the DEA 

underestimates the historical cost of 

California tiger salamander conservation 

measures. 

Our Response: The primary focus of 

the DEA is to provide decision makers 

with an estimate of the impacts 

associated with the proposed 

rulemaking. Understanding the 

magnitude of historical impacts helps 

decision makers place future costs in 

context. However, because historical 

costs are not directly relied upon for 

decision making, a less precise cost 

estimate is acceptable. 

Comment (55): One commenter stated 

that costs associated with re-planning 

projects originally intended for critical 

habitat areas are not captured by the 

analysis. 

Our Response: While some current 

projects may incur additional planning 

costs, future projects will be aware of 

habitat constraints before the planning 

process begins. For this reason, 

additional planning costs are expected 

to be minor. 

Comment (56): Numerous comments 

state that costs associated with litigation 

are not estimated by the DEA. 

Our Response: It is likely that 

potentially affected parties may incur 

administrative costs related to review of 

Federal documents such as the 

Proposed Rule in order, for example, to 

ensure their activities are appropriately 

considered in the economic analysis, or 

to request exemption from the 

rulemaking. The DEA considers only the 

direct and indirect costs associated with 

compliance with the rulemaking. The 

DEA does, however, include 

administrative costs of compliance with 

the rulemaking where appropriate, for 

example the administrative costs of 

section 7 consultation, which may 

similarly include review of Federal 

documents. In addition, the DEA 

focuses on activities that are considered 

reasonably foreseeable. The number, 

scope and timing of potential legal 

challenges associated with the 

rulemaking is difficult to quantify.

Comment (57): Two commenters 

stated that costs associated with CTS 

conservation activities undertaken by 

public entities may result in an 

increased tax burden for the 

community. 

Our Response: While economic 

impacts born by the public sector are 

captured by the DEA, it is unclear if or 

how various jurisdictions might pass on 

their increased costs to taxpayers. 

However, it is important to note that 

these tax policy and cost allocation 

decisions are regarded as distributional 

rather than economic welfare effects. 

Given the high level on uncertainty 

associated with future tax and spending 

policy at the local and State level, The 

DEA does not forecast these effects. 

Comment (58): One comment states 

that the DEA limits its analysis of 

agricultural impacts of the critical 

habitat designation to viticulture. 

Our Response: The DEA addresses 

impacts to agriculture in Chapter 4. 

Grazing activities are assumed to 

proceed as they do currently, a point 

bolstered by the Service’s special rule, 

authorized under section of 4(d) of the 

ESA, to work cooperatively with 

ranchers. The DEA assumes that prime 

agricultural lands will not be affected by 

the critical habitat designation as these 

cultivated lands are not suitable habitat 

for California tiger salamander. In 

addition, the DEA estimates that all 

secondary agricultural land will be 

developed during the period of the 

study (Chapter 3), which results in 

higher costs than if habitat set-asides 

were applied to agricultural land. 

Finally, costs associated with vineyard 

conversion are calculated and presented 

in Tables 11 and 12. 

Comment (59): One commenter stated 

that the DEA should evaluate the impact 

of the critical habitat designation on 

conversions of rangeland to dry and 

irrigated crops. 

Our Response: The California tiger 

salamander consultation history does 

not contain any biological opinions 

addressing rangeland conversion to field 

crops. Given the lack of historical 

consultations, the DEA does not 

calculate any impact resulting from this 

project type. The Service will evaluate 

such conversions, if they occur, on a 

case-by-case basis. Impacts related to 

vineyard conversion resulting from the 

critical habitat designation are 

calculated in Chapter 4 of the DEA. 

Comment (60): One commenter stated 

that the DEA should account for the 

impact of the critical habitat designation 

on CEQA costs for agriculture projects. 

Our Response: While the critical 

habitat designation will provide new 

information regarding California tiger 

salamanders in agricultural areas, it is 

unlikely that small agriculture projects 

would be required to prepare an 

Environmental Impact Report due to the 

critical habitat designation alone. 

Comment (61): One commenter stated 

that the DEA does not reflect any of the 

major economic benefits that would 

accrue to Santa Barbara County if the 

county was excluded from the critical 

habitat designation. 

Our Response: The economic impacts 

presented in the DEA reflect the 

estimated cost of the proposed critical 

habitat designation. Any areas that are 

excluded from the proposed designation 

(in the final designation) would avoid 

such impacts, which could be construed 

as the associated benefit, or cost 

avoidance. 

Comment (62): One commenter asked 

how will the Department consider 

economic impacts as part of the overall 

final designation. 

Our Response: Section (4)(b)(2) of the 

Act requires the Service to designate 

critical habitat on the basis of the best 

scientific data available, after taking into 

consideration the economic impact and 

any other relevant impact, or specifying 

any particular areas as critical habitat. 

The Service may exclude areas from the 

critical habitat designation when the 

benefits of exclusion outweigh the 

benefits of including the areas within 

critical habitat, provided the exclusion 

will not result in the extinction of the 

species. The Service uses the 

information in the economic analysis to 

determine whether it should consider 

areas for exclusion for economic 

reasons. 

Comment (63): One commenter stated 

that the DEA falsely assumes that small 

rural residential development projects 

will not be subject to land set-asides. 

Our Response: The economic analysis 

shows total efficiency costs for the 

species in Santa Barbara County. Project 

modification and administrative costs 

are those costs associated with 

implementing species and habitat 

management efforts. These costs include 

the cost of offsetting compensation (i.e., 

land set-aside) for impacts to California 

tiger salamander habitat. Additionally 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68579

project modifications include 

minimization and avoidance measures 

to protect the California tiger 

salamander when a project in ongoing. 

Land set-asides make up the large 

majority of the total project modification 

cost. Estimation of the regional 

significance of land set-aside suggests 

that regional real estate markets will not 

be affected by California tiger 

salamander conservation efforts. One of 

the key assumptions of this analysis, see 

Exhibit ES–4, is the analysis does not 

assume that developers may satisfy 

multiple public land use requirements 

by setting aside California tiger 

salamander habitat on the project site. 

In reality, projects benefit from claiming 

that habitat protection provides open 

space, necessary buffering between 

incompatible land uses, flood control, 

and other functions. The use of habitat 

land in this way reduces the projects 

required dedication of land for other 

open space uses compared to a land use 

plant in which no habitat set aside is 

required. As shown in Table 2 

‘‘Summary of Future Development SetAside within Proposed CTS CH (2005–

2030)’’ of the DEA, footnote (3) states 

‘‘* * * Note that some low-density land 

uses (e.g., rural residential) are assumed 

to not require land set-aside. 

Comment (64): One commenter stated 

critical habitat requirements overlap 

with other requirements that promote 

open space and thus should not be 

entirely accounted for as an impact; the 

commenter expressed concern that the 

estimates contained in the DEA 

inappropriately include costs associated 

with existing land-use requirements that 

serve to promote open space. 

Our Response: The primary purpose 

of the economic analysis is to estimate 

the impact of actions take to protect the 

federally listed California tiger 

salamander and its habitat. It attempts 

to quantify the economic effects of the 

designation of critical habitat, as well as 

the economic effects of protective 

measures taken as a result of the listing 

of the California tiger salamander. The 

economic analysis also complies with 

the direction from the U.S. 10th Circuit 

Court of Appeals, that, when deciding 

which areas to designate as critical 

habitat, the economic analysis 

informing that decision should include 

‘‘co-extensive’’ effects. The DEA 

discusses other relevant regulations and 

protection efforts as the protection of 

the California tiger salamander and its 

habitat is not limited to the Act. In 

general, this analysis errs on the side of 

conservatism in order to make certain 

the economic effects have not been 

missed. It treats as ‘‘co-extensive’’ other 

federal and State requirements that may 

result in overlapping protection 

measures (e.g., section 404 of the Clean 

Water Act, and the California 

Environmental Quality Act). In some 

cases, however, non-habitat related 

regulations will limit land use activities 

within critical habitat in ways that will 

directly or indirectly, benefit the 

California tiger salamander or its habitat 

(e.g. , local zoning ordinances). These 

impacts were not considered to be ‘‘coextensive’’ with the California tiger 

salamander listing or designation.

As stated in the DEA, 280, ‘‘This 

analysis also endeavors to capture the 

net economic impact imposed on 

regulated entities, and the regional 

economy resulting from California tiger 

salamander conservation efforts. To the 

extent possible, the estimated net 

economic impact should account for 

any offsetting benefits that might accrue 

to the regulated community due to their 

habitat preservation activities. For 

example, in certain cases real estate 

development that effectively 

incorporates California tiger salamander 

habitat set-aside on-site might realize a 

value premium typically associated 

with additional open space. Any such 

premium will offset land preservation 

costs borne by landowners/developers. 

Unfortunately, reliable data revealing 

the premium that the market places on 

nearby open space in Southern 

California is not readily available. 

Moreover, the value premium associated 

with habitat preservation is likely to be 

limited given that the recreational uses 

associated with habitat preserves are 

generally restricted.’’

Comment (65): One commenter stated 

that DEA for the critical habitat 

designation for the California tiger 

salamander in Santa Barbara County 

does not identify and assess benefits. 

Our Response: The DEA, 440, Benefits 

section, states ‘‘Given the limitations 

associated with estimating the benefits 

of proposed critical habitat designation 

for the California tiger salamander, the 

Service believes that the benefits of 

proposed critical habitat designations 

are best expressed in biological terms 

that can be weighed against the 

expected cost impacts of the 

rulemaking.’’ The development of 

quantitative estimates associated with 

the benefits of critical habitat is 

impeded by the lack of available studies 

and information relating to the size and 

value of beneficial changes that are 

likely to occur as a result of listing a 

species or designating critical habitat. 

This analysis is used for helping the 

Service to decide whether to exclude 

areas and whether the exclusions 

outweigh the conservation benefits of 

inclusion. So, the economic analysis 

looks at the burden on the public of the 

regulation, and whether any areas have 

a disproportionate burden. The Service 

must then balance that against the 

benefits of including that area—

including the benefits of the area to the 

species and the benefits of the species’

existence and recovery. We do this in 

the 4(b)(2) discussion in our rules. We 

believe that monetizing may trivialize 

the benefits of critical habitat because 

there are no widely accepted ways for 

placing a dollar value on a biological 

benefit. In this analysis, several 

categories of benefits were identified, 

including preservation of open space 

and biodiversity, both of which are 

associated with species conservation. 

Comment (66): One commenter stated 

that the area within Unit 1(Western 

Santa Maria/Orcutt), east of Black Road, 

and the area within Unit 2 (Eastern 

Santa Maria), west of Telephone Road, 

should both be excluded because of 

proposed future growth and 

development plans. 

Our Response: Section (4)(b)(2) of the 

Act requires the Service to designate 

critical habitat on the basis of the best 

scientific data available, after taking into 

consideration the economic impact and 

any other relevant impact, or specifying 

any particular areas as critical habitat. 

The Service may exclude areas from the 

critical habitat designation when the 

benefits of exclusion outweigh the 

benefits of including the areas within 

critical habitat, provided the exclusion 

will not result in the extinction of the 

species. Based on the Service’s analysis 

of the best available scientific and 

commercial data, we determined that 

these areas or units provide for the 

essential life-cycle needs of the species. 

The draft economic analysis shows that 

Units 1 or 2 carry over 98 percent of 

total estimated costs ($418.3 million) for 

52 percent of the total proposed acreage. 

Unit 1 (Western Santa Maria/Orcutt) 

is essential to the conservation of the 

California tiger salamander because it 

contains 37 percent of the natural vernal 

pools for this population. Unit 1 

contains 7 (approximately 37 percent) of 

the 19 natural vernal ponds that occur 

in Santa Barbara County. ften, natural 

ponds do not require as much, if any, 

maintenance whereas artificial ponds 

require continual maintenance (e.g., 

berm repair, erosion control, sediment 

removal activities). Collectively, Unit 1 

contains 12 known California tiger 

salamander breeding ponds and several 

water bodies that are suitable for 

breeding California tiger salamanders 

but that have never been surveyed. The 

12 known breeding ponds in this unit 

constitute approximately 26 percent of 

68580 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

the known breeding ponds (46) in Santa 

Barbara County. 

Unit 2 (Eastern Santa Maria) ) is 

essential to the conservation of the 

California tiger salamander because it 

contains 21 percent of the natural vernal 

pools used for California tiger 

salamander breeding in Santa Barbara 

County (19 natural vernal ponds total). 

The unit contains 4 known California 

tiger salamander breeding ponds and 

additional water bodies that are suitable 

for breeding California tiger 

salamanders but that have never been 

surveyed. All four known breeding 

ponds in Unit 2 are natural vernal pools. 

As mentioned in the above description 

for Unit 1 (Western Santa Maria), often, 

natural ponds do not require as much, 

if any, maintenance whereas artificial 

ponds require continual maintenance 

(e.g., berm repair, erosion control, 

sediment removal activities). 

Comment (67): One commenter stated 

that the Service needs to reevaluate the 

critical habitat designation because the 

California tiger salamander no longer 

constitutes a DPS and as a result needs 

to conduct a new and revised economic 

analysis; Another commenter stated the 

economic analysis needs to consider the 

potential impacts across the entire range 

of the species (186,840 acres) rather 

than just the critical habitat 

designation’s proposed designation of 

13,920 acres. 

Our Response: On January 22, 2004, 

we proposed six units comprised on 

13,920 in total for the California tiger 

salamander in Santa Barbara County (69 

FR 3064). At the time this analysis was 

conducted, the California tiger 

salamander was listed as a DPS and we 

looked at the 13,920 acres proposed as 

critical habitat. Exhibit ES–1 of the draft 

economic analysis details the 

description and acreage of each unit. 

The purpose of the draft economic 

analysis report is to identify and analyze 

the potential economic impacts 

associated with the designation of 

critical habitat for the California tiger 

salamander in Santa Barbara County. 

The geographic scope of the economic 

analysis focuses on the area being 

proposed for designation in northern 

Santa Barbara County, and not the entire 

range of the species. We will conduct an 

economic analysis for the California 

tiger salamander, Central population 

designation this fiscal year, and when 

we propose the Sonoma County portion 

of the California tiger salamander 

critical habitat, we will analyze the 

economic impacts of that portion of the 

designation. 

Issue 6—Procedural Concerns 

Comment (68): One commenter stated 

that the critical habitat designation is 

not determinable due to lack of 

sufficient information regarding the 

space needed for individual and 

population growth, and for normal 

behavior; the species requirements for 

food, water, air, light, mineral, or other 

nutritional or physiological needs; the 

amount of cover or shelter required; the 

locations for breeding, reproduction or 

rearing of offspring; nor the location of 

habitats that are protected from 

disturbance or that are representative of 

historic geographical and ecological 

distributions of the species. 

Our Response: We believe that we 

have sufficient information to identify 

appropriately critical habitat for the 

California tiger salamander in Santa 

Barbara County. In our determination of 

the areas that meet the definition of 

critical habitat for the California tiger 

salamander, we used the best scientific 

and commercial data available (see also 

Response to Comment (16)). 

Several published, peer-reviewed 

studies have been conducted relating to 

the California tiger salamander’s biology 

and its habitat needs. Included in this 

information is how far they have been 

found to disperse (i.e., space needed for 

individual and population growth and 

for normal behavior), the fact that they 

feed underground in small mammal 

burrows as adults and in aquatic habitat 

when juveniles (i.e., the species 

requirements for food), the need for 

ponded water for breeding purposes 

(i.e., the species’ requirements for water 

and the locations for breeding, 

reproduction or rearing of offspring), 

and the fact that they spend most of 

their lives underground in small 

mammal burrows (i.e., the amount of 

cover or shelter required). For more 

species information, please refer to the 

Background section of the proposed 

critical habitat rule (January 22, 2004, 

69 FR 3064).

Comment (69): One commenter stated 

that the designation is not prudent due 

to the fact that the species continues to 

be threatened by taking or other human 

activity and identification of critical 

habitat can be expected to increase the 

degree of such threat to the species and 

such designation of critical habitat 

would not be beneficial to the species. 

Our Response: According to our 

regulations at 50 CFR 424.12, a 

designation of critical habitat is not 

prudent when one or both or the 

following situations exist: (1) The 

species is threatened by taking or other 

human activity and identification of 

critical habitat can be expected to 

increase the degree of such threat to the 

species or (2) such designation of 

critical habitat would not be beneficial 

to the species. In the final rule listing 

the California tiger salamander in Santa 

Barbara County as endangered 

(September 21, 2000, 65 FR 57242), we 

found that a designation of critical 

habitat was prudent. Our reasoning is 

discussed in that final rule listing. We 

believe this rationale is still applicable. 

Comment (70): Several commenters 

stated that no public input was used in 

the designation. 

Our Response: The public is asked to 

provide comments on critical habitat 

proposals. The comments are fully 

considered as we make our final 

determination. We solicited data and 

comments from the public on all aspects 

of this proposal, including data on the 

economic and other impacts of 

designation. We had three public 

comment periods on the proposed rule 

(January 22, 2004, through March 22, 

2004, April 13, 2004, through May 28, 

2004, and October 7, 2004, through 

November 8, 2004). We also held a 

public hearing on our proposal to 

designate critical habitat for the Santa 

Barbara County population of California 

tiger salamanders on May 11, 2004, in 

Santa Maria, California. We conducted 

an informational meeting on March 10, 

2004, in Santa Maria to discuss the 

methodology used to create the critical 

habitat units and what critical habitat 

means for landowners within the 

critical habitat boundaries. Written 

public comments were accepted at the 

public hearing and entered into the 

supporting record for the rulemaking. 

Oral comments given at the public 

hearings were also accepted into the 

supporting record. In making our 

decision on the critical habitat 

designation, we gave written comments 

the same weight as oral comments 

presented at hearings. See also 

Summary of Comments and 

Recommendations section above. 

Comment (71): One commenter 

generally agreed with, and supported, 

the designation, and requested that the 

Service make available to the public 

which areas, if any, will be left out of 

the final rule at the same time the 

economic analysis is released for 

comment. 

Our Response: Typically, we do not 

make a determination to exclude an area 

from final critical habitat based on 

economic considerations at the time the 

draft analysis is released. The 

determination is made at the end of the 

rulemaking process following our 

receipt and review of public comments 

on the proposed rule and draft 

economic analysis and following any 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68581

appropriate revisions to the draft 

economic analysis as we write the final 

critical habitat rule. 

Comment (72): One commenter stated 

that much of the farming and ranching 

around these areas build and use stock 

ponds, which salamanders use. 

However, these increased restrictions 

might make it so no one would want to 

continue to do this or other soil 

conservation projects. Another 

commenter stated that this designation 

has the potential to discourage many 

wildlife friendly ranching practices and 

further hinder new and ongoing 

restoration and conservation efforts. 

Our Response: We recognize the 

importance of landowner cooperation 

for conservation of listed species. This 

is true for the lands designated as 

critical habitat for the California tiger 

salamander, which are mostly under 

private ownership. We also recognize 

that critical habitat designations could 

potentially have a negative impact on 

voluntary partnerships with private 

landowners. Some landowners have 

been working with us to develop 

conservation easements on or 

Memoranda of Understanding for their 

properties to protect the California tiger 

salamander. These voluntary 

conservation efforts are not complete 

but are well under way. After weighing 

the benefits of including these areas as 

critical habitat with the benefits of 

excluding them, we concluded that the 

designation of critical habitat would 

have a net negative conservation effect 

in some situations, and we excluded 

those areas with completed Memoranda 

of Understanding regarding 

conservation actions from the final 

designation of critical habitat. See our 

discussion under the Relationship of 

Critical Habitat to Lands Implementing 

Approved Conservation Strategies 

below. We also acknowledged the 

importance of ranchlands to California 

tiger salamander conservation in our 

August 4, 2004, Special Rule exempting 

existing routine ranching practices from 

take of California tiger salamanders 

throughout the species’ range (August 4, 

2004, 69 FR 47212). 

Comment (73): One commenter stated 

that the process for farmers and 

ranchers to obtain Federal funding 

through the Farm Bill is already too 

slow a process; the additional section 7 

consultation would add more time to 

this.

Our Response: All lands designated as 

critical habitat are within the geographic 

area occupied by the species (based on 

observations made within the last 3 

years), and are likely to be used by the 

California tiger salamander, whether for 

foraging, breeding, growth of larvae and 

juveniles, dispersal, migration, genetic 

exchange, or sheltering. Thus, we 

consider all critical habitat units to be 

occupied by the species. Federal 

agencies already consult with us on 

activities in areas currently occupied by 

the species or if the species may be 

affected by the action to ensure that 

their actions do not jeopardize the 

continued existence of the species. 

Therefore, we believe that the 

designation of critical habitat is not 

likely to result in significant additional 

regulatory burden above that already in 

place due to the presence of the listed 

species. 

Comment (74): One commenter 

recommended that the Service use the 

economic analysis prepared by David 

Sunding, Aaron Swoboda, and David 

Zilberman of the Center for Sustainable 

Resource Development in the College of 

Natural Resources at UC Berkeley, titled 

‘‘The Economic Costs of Critical Habitat 

Designation: Framework and 

Application to the Case of California 

Vernal Pools’’ for a more realistic look 

at the true costs of designating critical 

habitat. 

Our Response: The Service has 

adopted numerous guidelines and 

procedures for developing critical 

habitat designations based upon the best 

information available. From time to 

time, these guidelines are altered, and 

we will consider any information that 

could make these designations more 

useful; however, we cannot adopt an 

outside source of guidance without 

considerable review and consideration. 

We appreciate the commenter’s 

recommendation and will evaluate the 

referenced document for future critical 

habitat rules. 

Comment (75): Several commenters 

stated that, if the Santa Barbara County 

DPS of the California tiger salamander is 

downlisted to threatened as proposed in 

the May 2003 proposal (68 FR 28648), 

this might affect the final critical habitat 

rule. 

Our Response: Designation of critical 

habitat is required under the Act 

whether a species is threatened or 

endangered. In the final rule we have 

designated habitat in Santa Barbara 

County that is essential for the 

conservation of the California tiger 

salamander. Each of the six populations 

of California tiger salamander in Santa 

Barbara County is essential to the 

survival and recovery of the species as 

a whole and this designation covers the 

habitat essential to conserve those six 

populations. Because our August 4, 

2004, determination listed the California 

tiger salamander rangewide as 

threatened and eliminated the separate 

Santa Barbara County and Sonoma 

County DPS designations (69 FR 47212), 

this final critical habitat designation 

will become part of the critical habitat 

ultimately designated for the species 

rangewide. We anticipate completing 

the critical habitat designation for 

California tiger salamander rangewide 

through future rulemaking. We 

proposed critical habitat for the central 

portion of the California tiger 

salamander’s range (Central population) 

on August 10, 2004 (69 FR 48570). 

Comment (76): One commenter 

referred to efforts being made by the 

Service and stakeholders working 

together towards the delisting of the 

California tiger salamander, and 

questioned why those efforts have 

stopped. 

Our Response: A species may be 

downlisted or delisted if a review of its 

status shows that it has either recovered 

to the point it is no longer threatened or 

endangered, or if the threats to its 

survival and recovery have been 

reduced to the extent that the species is 

no longer threatened or endangered. 

These downlisting or delisting criteria 

are usually established in a recovery 

plan; however, decisions on downlisting 

and delisting may be made based upon 

a review of current scientific evidence. 

Completing a recovery plan for the 

California tiger salamander in Santa 

Barbara County and rangewide is 

important to us. Efforts on the Santa 

Barbara County portion of the range 

have helped us determine which areas 

are essential to the conservation of the 

California tiger salamander addressed 

herein. We are currently discussing how 

to proceed most efficiently and 

effectively with recovery planning 

efforts in light of our August 4, 2004, 

determination listing California tiger 

salamander rangewide as threatened (69 

FR 47212). 

Comment (77): One commenter stated 

that the certification of SBREFA has no 

analysis and is not supported. 

Our Response: As required 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), when 

we published the proposed critical 

habitat rule, we included an assessment 

of the proposed rule’s effects under 

SBREFA and certified the rule would 

not have a significant effect on a 

substantial number of small entities. We 

subsequently prepared and made 

available for public comment a draft 

economic analysis that describes the 

effects of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

Please refer to the Required 

68582 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

Determinations section contained in this 

final rule for more information. 

Comment (78): One commenter stated 

that the Service has failed to operate 

within the Administrative Procedure 

Act (APA), because its ‘‘collaborative’’

approach (i.e., the recovery team) 

violates APA. 

Our Response: We have been working 

with a recovery team on a draft recovery 

plan for the California tiger salamander 

in Santa Barbara County. We have used 

some of the information gathered for the 

draft recovery plan in helping us 

determine areas essential to the 

conservation of the California tiger 

salamander addressed herein. We did 

not hold meetings with the recovery 

team or otherwise ask the recovery team 

to help identify critical habitat units. 

Our efforts in this process fully comply 

with the ESA, and the APA. 

Comment (79): One commenter asked 

how CEQA will, or how it is supposed 

to, review critical habitat designations. 

The commenter stated that critical 

habitat will prevent development 

without just cause.

Our Response: The CEQA guidelines 

state that a project would have a 

significant effect on the environment 

(meaning the potential need to prepare 

an Environmental Impact Report) if it 

would substantially affect a rare or 

endangered species or its habitat. In the 

case of California tiger salamander in 

Santa Barbara County, all of the critical 

habitat is occupied. Therefore, the 

critical habitat designation will not 

result in additional CEQA review solely 

on that basis. 

All Federal agencies must consult 

under section 7 of the Act with us to 

ensure that any action that they 

authorize, fund, or carry out is not likely 

to jeopardize the continued existence of 

any endangered or threatened species or 

result in the destruction or adverse 

modification of critical habitat. Project 

proposals have been subject to our 

review process since the California tiger 

salamander was listed in 2000 (65 FR 

57242). We have provided our best 

assessment of what the effects of the 

section 7 consultation requirement may 

be for private landowners as well as for 

State agencies proposing activities with 

a Federal nexus within designated 

critical habitat. The commenter 

provides no factual support for the 

assertion that designation of critical 

habitat will prevent development. 

Comment (80): Several commenters 

stated that a Recovery Plan should be 

completed before critical habitat is 

designated. 

Our Response: Section 4 of the Act 

requires us to designate critical habitat 

at the time of listing to the maximum 

extent prudent and determinable. In 

addition, we are under a court ordered 

deadline to complete critical habitat for 

the California tiger salamander in Santa 

Barbara County by November 15, 2004. 

While we agree that a recovery plan is 

a useful tool to assist us with 

determining which areas are essential 

for the conservation of a species, we are 

not at the liberty to postpone the final 

designation pending completion of a 

recovery plan. However, we have been 

working with a recovery team on a draft 

recovery plan for the California tiger 

salamander in Santa Barbara County 

and have used some of the information 

gathered for the draft recovery plan in 

helping us determine areas meeting the 

definition of critical habitat for the 

California tiger salamander addressed 

herein. 

Comment (81): Two commenters 

stated their concerns regarding the short 

timelines the Service has to prepare 

rules such as this critical habitat 

designation. The commenters stated that 

shortened time frames force the Service 

to work with fewer facts. 

Our Response: When we designate 

critical habitat at the time of listing or 

under short, court-ordered deadlines, 

we will often not have sufficient 

information to identify all areas of 

critical habitat. Nevertheless, we are 

required to make a decision and, thus, 

must base our designations on what, at 

the time of designation, we know to be 

critical habitat. In determining such 

areas, we used the best scientific and 

commercial data available, including 

information gathered by the science 

subteam of the recovery team for the 

CTS in Santa Barbara County (Service 

files 2002–2003). 

Comment (82): One commenter stated 

that their property is not located within 

the mapped areas but they have still 

been told that they need to hire 

biologists to assess the site for potential 

California tiger salamanders and their 

habitat. 

Our Response: California tiger 

salamanders could potentially occur 

throughout their range in northern Santa 

Barbara County. Most of the land is 

privately-owned and has not been 

surveyed. Surveys following specified 

protocols (available from the Ventura 

Fish and Wildlife Office) are 

recommended to assess the likelihood 

that California tiger salamanders are 

present on a particular property. 

Property with suitable habitat (aquatic 

or upland) within the range of the 

California tiger salamander may harbor 

California tiger salamanders. If so, any 

activities involving ground disturbance 

could result in take. Protocol surveys 

provide a useful tool to establish that 

California tiger salamanders are unlikely 

to be present on a specific property. 

Comment (83): A few commenters 

asked why, if critical habitat adds little 

protection to a listed species as stated in 

the language in the beginning of each 

critical habitat rule, then why does the 

Service continue to designate critical 

habitat? 

Our Response: Section 4 of the 

Endangered Species Act of 1973, as 

amended, and our implementing 

regulations, state that critical habitat 

shall be designated for species listed 

under the Act unless the Secretary 

determines that such designation is not 

prudent or not determinable. 

Comment (84): One commenter stated 

that the designation specifies the need 

for more ponds to be built and upland 

habitat to be restored and asked who 

would do this, as most of the critical 

habitat occurs on private land. 

Our Response: The measures 

mentioned in the proposed rule refer to 

recommendations made by the science 

subteam of the recovery team for the 

CTS in Santa Barbara County to enhance 

and protect California tiger salamander 

habitat (Service files 2002–2003). 

Critical habitat designations affect only 

activities that require Federal permits or 

funding, and do not require landowners 

to carry out special management or 

restrict use of their land. We have been, 

and will continue, to work with 

interested individuals, organizations, 

and agencies on a voluntary basis to 

implement conservation and recovery 

actions that will benefit the California 

tiger salamander. 

Comment (85): One commenter stated 

that the County of Santa Barbara 

incorporates critical habitat 

designations, such as the one for the 

California tiger salamander into their 

own regulations, which they then 

enforce. 

Our Response: We do not dictate how 

a local government, such as Santa 

Barbara County, uses critical habitat 

designations. However, from the point 

of view of the Federal government, a 

critical habitat designation does not 

allow either government or public 

access to private land, and similarly will 

not result in the closure of the area to 

access or use. If a species is listed or 

critical habitat is designated, section 

7(a)(2) requires Federal agencies to 

insure 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. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68583

Summary of Changes From the 

Proposed Rule 

In preparing our final designation of 

critical habitat for the California tiger 

salamander, we reviewed comments 

received on the proposed designation of 

critical habitat. In addition to minor 

clarifications in the text pertaining to 

State and Federal projects and section 7 

consultations (see State comment (4)), 

we made five changes to our proposed 

designation, as follows: 

(1) We made revisions to preamble 

based on information supplied by 

commenters which clarified the U.S. 

Federal Highway Administration’s 

oversight during section 7 consultations. 

(2) Under section 4(b)(2) of the Act, 

we excluded properties with adequate 

management plans that cover the 

California tiger salamander and its 

habitat. For more information, refer to 

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

Act below. 

(3) We excluded an existing vineyard 

from critical habitat Unit 6 (Santa Rita 

Valley) that was included in the 

proposed rule as a result of a mapping 

error.

(4) Based on comments on the 

proposed rule, we found that the 

generalized boundaries we employed 

were too inaccurate. Therefore, the final 

critical habitat boundaries were refined 

to more closely follow actual landscape 

features (such as roads) that can be more 

readily found on the ground. For 

example, the proposed critical habitat 

Unit 1, Western Santa Maria, showed 

the boundary extending slightly south of 

State Highway 1. The boundary for the 

final critical habitat for Unit 1 stays 

north of State Highway 1. 

(5) Collectively, we excluded a total of 

2,740 ac (1,109 ha) of privately-owned 

lands from this final critical habitat 

designation.

TABLE 1.—PROPOSED AND FINAL CRITICAL HABITAT ACREAGES

Unit Proposed/final acreage 

1. Western Santa Maria/Orcutt ................................................................................................ 4,349 ac (1,760 ha) 4,135 ac (1,673 ha) 

2. Eastern Santa Maria ............................................................................................................ 2,985 ac (1,208 ha) 2,909 ac (1,177 ha) 

3. Western Los Alamos/Careaga ............................................................................................ 2,181 ac (882 ha) 1,451 ac (587 ha) 

4. Eastern Los Alamos ............................................................................................................ 1,302 ac (527 ha) 90 ac (36 ha) 

5. Purisima Hills ....................................................................................................................... 2,359 ac (955 ha) 1,957 ac (792 ha) 

6. Santa Rita Valley ................................................................................................................. 744 ac (301 ha) 638 ac (258 ha) 

Total .................................................................................................................................. 13,920 ac (5,633 ha) 11,180 ac (4,523 ha) 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) the specific areas 

within the geographic area occupied by 

a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species, and (II) that may require 

special management considerations or 

protection; and, (ii) specific areas 

outside the geographic area occupied by 

a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. ‘‘Conservation,’’ as defined by 

the Act, means the use of all methods 

and procedures that are necessary to 

bring an endangered or a threatened 

species to the point at which listing 

under the Act is no longer necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 also requires 

conferences on Federal actions that are 

likely to result in the destruction or 

adverse modification of proposed 

critical habitat. 

To be included in a critical habitat 

designation, the habitat must contain 

the physical and biological features 

‘‘essential to the conservation of the 

species.’’ Critical habitat designations 

identify, to the extent known using the 

best scientific and commercial data 

available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Our Policy on Information Standards 

Under the Endangered Species Act, 

published in the Federal Register on 

July 1, 1994 (59 FR 34271), and our U.S. 

Fish and Wildlife Service Information 

Quality Guidelines (2002) provide 

criteria, establish procedures, and 

provide guidance to ensure that our 

decisions represent the best scientific 

and commercial data available. They 

require our biologists, to the extent 

consistent with the Act and with the use 

of the best scientific and commercial 

data available, to use primary and 

original sources of information as the 

basis for recommendations to designate 

critical habitat. When determining 

which areas are critical habitat, a 

primary source of information should be 

the listing package for the species. 

Additional information may be obtained 

from a recovery plan, articles in peerreviewed journals, conservation plans 

developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. 

Critical habitat designations do not 

signal that habitat outside the 

designation is unimportant to the 

California tiger salamander in Santa 

Barbara County. Areas outside the 

critical habitat designation will 

continue to be subject to conservation 

actions that may be implemented under 

section 7(a)(1), and to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard and the 

section 9 take prohibition, as 

determined on the basis of the best 

available information at the time of the 

action. We specifically anticipate that 

federally funded or assisted projects 

affecting listed species outside their 

designated critical habitat areas may 

still result in jeopardy findings in some 

cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome.

Methods 

Our methods for identifying the 

California tiger salamander critical 

habitat included in this final 

designation are identical to the methods 

we used in our proposal of critical 

habitat for the California tiger 

salamander, published on January 22, 

2004 (69 FR 3064). 

On August 10, 2004, we proposed 

critical habitat for the California tiger 

salamander, Central population, in four 

68584 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

regions: Central Valley, Southern San 

Joaquin Valley, East Bay, and Central 

Coast (69 FR 48570). The methods used 

to identify critical habitat in the Central 

designation are similar in nature to the 

methods used for the critical habitat 

designation for the CTS in Santa Barbara 

County; some methods differ as a result 

of differences in local biological and 

commercial data for each population. 

For example, the proposed designation 

for the California tiger salamander, 

Central population, includes an 

additional primary constituent element 

as a result of habitat features specific to 

that population (69 FR 48575). 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining what areas are 

critical habitat, we shall consider those 

physical and biological features that are 

essential to the conservation of the 

species and, within areas currently 

occupied by the species, that may 

require special management 

considerations or protection. These 

generally include, but are not limited to, 

the following: Space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. Further, when 

considering the designation of critical 

habitat, we shall focus on the principal 

biological or physical constituent 

elements (i.e., PCEs) within the defined 

area that are essential to the 

conservation of the species. 

The specific PCEs required for 

California tiger salamander critical 

habitat are derived from the biological 

needs of the California tiger salamander 

as described below. 

The areas proposed for designation as 

critical habitat for the California tiger 

salamander are designed to provide 

sufficient aquatic habitat for breeding 

and upland habitat as refugia for adults 

to maintain and sustain populations of 

California tiger salamanders throughout 

their range, and provide those habitat 

components essential for the 

conservation of the species. Due to the 

complex life history and dispersal 

capabilities of California tiger 

salamanders, and the dynamic nature of 

the environments in which they are 

found, the primary constituent elements 

described below should be found 

throughout the units that are being 

designated as critical habitat. Critical 

habitat for California tiger salamanders 

will provide for breeding and 

nonbreeding habitat and for dispersal 

between these habitats, as well as 

allowing for an increase in the size of 

California tiger salamander populations, 

which is essential to the conservation of 

the subspecies. 

Critical habitat includes: Essential 

aquatic habitat, essential upland 

nonbreeding season habitat with 

underground refugia, and dispersal 

habitat connecting occupied California 

tiger salamander locations to each other. 

Based on our current knowledge of the 

life history and ecology of the species 

and the relationship of its essential life 

history functions to its habitat, as 

summarized in the Background section 

of the proposed critical habitat rule (69 

FR 3064), we have determined that the 

California tiger salamander requires the 

following primary constituent elements: 

(1) Standing bodies of fresh water, 

including natural and man-made (e.g., 

stock) ponds, vernal pools, and dune 

ponds, and other ephemeral or 

permanent water bodies that typically 

become inundated during winter rains 

and hold water for a sufficient length of 

time (i.e., 12 weeks) necessary for the 

species to complete the aquatic portion 

of its life cycle. (2) Barrier-free uplands 

adjacent to breeding ponds that contain 

small mammal burrows. Small 

mammals are essential in creating the 

underground habitat that adult 

California tiger salamanders depend 

upon for food, shelter, and protection 

from the elements and predation. (3) 

Upland areas between breeding 

locations (PCE 1) and areas with small 

mammal burrows (PCE 2) that allow for 

dispersal among such sites. 

We describe the relationship between 

each of these PCEs and the conservation 

of the salamander in more detail below. 

The essential aquatic habitat described 

as the first PCE is essential for California 

tiger salamander breeding and for 

providing space, food, and cover 

necessary to sustain early life history 

stages of California tiger salamanders. 

Breeding habitat consists of fresh water 

bodies, including natural and man-made 

(e.g., stock) ponds, vernal pools, and 

dune ponds. To be considered essential, 

aquatic habitats must have the potential 

to hold water for a minimum of 12 

weeks in the winter or spring in a year 

of average rainfall because this is the 

amount of time needed for juveniles to 

complete metamorphosis and become 

capable of surviving in upland habitats. 

During periods of drought or less-than 

average rainfall, these breeding sites 

may not hold water long enough for 

individuals to complete metamorphosis, 

but these sites would still be considered 

essential because they constitute 

breeding habitat in years of average 

rainfall. Without its essential aquatic 

habitat, the California tiger salamander 

would not survive, because no breeding 

could occur. 

Associated upland habitat containing 

underground refugia described as the 

second PCE is essential for the survival 

of adult California tiger salamanders 

and juveniles that have recently 

undergone metamorphosis. Adult and 

juvenile California tiger salamanders are 

terrestrial, and they enter aquatic 

habitats only for short periods of time to 

breed. For the majority of their life 

cycle, California tiger salamanders 

depend for survival on upland habitats 

containing underground refugia in the 

form of small mammal burrows. These 

underground refugia provide protection 

from the hot, dry weather typical of 

Santa Barbara County in the 

nonbreeding season. California tiger 

salamanders also find food in small 

mammal burrows and rely on the 

burrows for protection from predators. 

The dispersal habitat described as the 

third PCE is essential for the 

conservation of the California tiger 

salamander. Protecting the ability of 

California tiger salamanders to move 

freely across the landscape in search of 

breeding ponds is essential in 

maintaining gene flow and for 

recolonization of sites that are 

temporarily extirpated. 

Lifetime reproductive success for 

California and other tiger salamanders is 

low. Trenham et al. (2000) found the 

average female bred 1.4 times and 

produced 8.5 young that survived to 

metamorphosis per reproductive effort. 

This resulted in roughly 11 

metamorphic offspring over the lifetime 

of a female. In part, this low 

reproductive success is due to the 

extended time it takes for California 

tiger salamanders to reach sexual 

maturity: Most do not breed until 4 or 

5 years of age. While individuals may 

survive for more than 10 years, many 

breed only once. Combined with low 

survivorship of metamorphosed 

individuals (in some populations, less 

than 5 percent of marked juveniles 

survive to become breeding adults 

(Trenham et al. 2000)), reproductive 

output in most years is not sufficient to 

maintain populations. This trend 

suggests that the species requires 

occasional ‘‘boom’’ breeding events to 

prevent extirpation (temporary or 

permanent loss of the species from a 

particular habitat) or extinction 

(Trenham et al. 2000). 

With such low recruitment, isolated 

populations are susceptible to unusual, 

randomly occurring natural events as 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68585

well as from human-caused factors that 

reduce breeding success and individual 

survival. Factors that repeatedly lower 

breeding success in isolated pools can 

quickly extirpate a population. 

Therefore, a critical element for 

successful conservation is the 

maintenance of sets of interconnected 

sites that are within the ‘‘rescue’’

distance of other ponds (Trenham et al.

2001). Dispersal habitat described as the 

third PCE is also essential in preserving 

the California tiger salamander’s 

population structure. The life history 

and ecology of the California tiger 

salamander make it likely that this 

species has a metapopulation structure 

(Hanski and Gilpin 1991). A 

metapopulation is a set of local 

populations or breeding sites within an 

area, where typically migration from 

one local population or breeding site to 

other areas containing suitable habitat is 

possible, but not routine. Movement 

between areas containing suitable 

habitat (i.e., dispersal) is restricted due 

to inhospitable conditions around and 

between areas of suitable habitat. 

Because many of the areas of suitable 

habitat may be small and support small 

numbers of salamanders, local 

extinction of these small units may be 

common. 

A metapopulation’s persistence 

depends on the combined dynamics of 

these local extinctions and the 

subsequent recolonization of these areas 

through dispersal (Hanski and Gilpin 

1991; Hanski 1994). Essential dispersal 

habitat generally consists of upland 

areas adjacent to essential aquatic 

habitat that are not isolated from 

breeding ponds by barriers that 

California tiger salamanders cannot 

cross. Essential dispersal habitat 

provides connectivity among California 

tiger salamander breeding ponds. While 

California tiger salamanders can bypass 

many obstacles, and do not require a 

particular type of habitat for dispersal, 

the habitat connecting essential aquatic 

habitat must be free of barriers (e.g., a 

physical or biological feature that 

prevents salamanders from dispersing 

beyond the feature). Examples of 

barriers are areas of steep topography 

devoid of soil or vegetation and State 

Highway 101. Agricultural lands such as 

row crops, orchards, vineyards, and 

pastures do not constitute barriers to the 

dispersal of California tiger 

salamanders.

In general, we are designating critical 

habitat that allows for dispersal between 

breeding locations within 0.70 mi (1,158 

m) of each other; however, we decreased 

or increased this distance based on sitespecific conditions within each unit. In 

summary, the primary constituent 

elements consist of three components. 

At a minimum, this will include 

suitable breeding locations and 

associated uplands surrounding these 

water bodies that are connected by 

dispersal habitat that is free of barriers. 

Criteria Used To Identify Critical 

Habitat 

To identify areas that are essential to 

the conservation of the California tiger 

salamander in Santa Barbara County, we 

first looked at the potential range of the 

species in Santa Barbara County, as 

mapped in spring of 2000 by biologists 

who had conducted California tiger 

salamander surveys throughout Santa 

Barbara County. The boundaries of the 

potential range were developed based 

on topography, geology, and survey 

information. In some areas (e.g., 

Vandenberg Air Force Base), seemingly 

appropriate habitat was excluded based 

on several years of negative survey 

results. Other areas (e.g., the Solomon 

Hills) had slopes too steep to support 

ponding necessary for California tiger 

salamander breeding. Other areas of 

intact habitat adjacent to known ponds 

were included, and areas with extensive 

ponded wetland habitat (e.g., Guadalupe 

Lakes) were also included. 

We then focused on areas within the 

range where we had credible records 

(e.g., museum voucher specimens, 

reports filed by biologists holding 

section 10(a)(1)(A) recovery permits) 

indicating California tiger salamander 

presence. The known locations of 

California tiger salamanders fall into six 

disparate areas of Santa Barbara County. 

Our conservation strategy focuses on 

providing sufficient breeding and 

upland habitat to ensure high enough 

adult survival to maintain and sustain 

existing populations of California tiger 

salamanders in each of these six areas 

within the County. Each of the six areas 

has a distinctive combination of habitat 

types, breeding pond types, landscape 

features, surrounding land uses, and 

topography. Because of the population 

size, and the existing threats, we 

determined that conservation of each of 

these six populations and the habitats 

essential to support them is essential to 

the conservation of the California tiger 

salamander in Santa Barbara County 

and to the species as a whole. 

Conserving California tiger 

salamanders over the long term requires 

a three-pronged approach: (1) Protecting 

the hydrology and water quality of 

breeding pools and ponds; (2) retaining 

or providing for connectivity between 

breeding locations for genetic exchange 

and recolonization; and (3) protecting 

sufficient upland habitat around each 

breeding location to allow for high 

enough adult survival to maintain a 

breeding population over the long term. 

An explanation of how we determined 

the amount of upland habitat that is 

essential for the conservation of the 

California tiger salamander in each 

critical habitat unit is described in more 

detail below. 

Once we identified the known 

breeding locations, we mapped the 

upland watershed of each pond based 

on aerial photographs taken in 2002 

(AirPhotoUSA Inc. 2002) overlain with 

topographic relief lines. Protecting the 

watersheds of breeding ponds is 

essential for two reasons: (1) To ensure 

that the amount of water entering the 

pond is not altered in a manner that 

would allow for colonization of 

breeding sites by bullfrogs and fish, 

which can prey upon California tiger 

salamander eggs and larvae and (2) to 

preserve water quality by minimizing 

the entry of sediments and other 

contaminants to the breeding ponds. 

Therefore, our critical habitat 

boundaries include the watersheds of all 

known breeding ponds. 

We then identified the upland habitat 

surrounding the ponds where juvenile 

and adult California tiger salamanders 

live during the majority of their life 

cycle. To determine a general guideline 

for the amount of upland habitat 

necessary to support a population of 

adult California tiger salamanders, we 

reviewed the primary literature 

regarding California tiger salamander 

upland habitat use, including Trenham 

(2001), Trenham et al. (2000), and 

Trenham and Shaffer (unpublished 

manuscript). We also reviewed 

information from other biologists who 

have conducted upland habitat use 

studies but have not yet written up the 

results (e.g., Sue Orloff, Steve Sykes, 

SAIC—see Background section of the 

proposed critical habitat rule (69 FR 

3064)). 

Data indicate that California tiger 

salamanders do not remain primarily in 

burrows close to breeding ponds, but 

instead move some distance out into the 

surrounding landscape. As described in 

the Background section of the proposed 

critical habitat rule (69 FR 3064), 

California tiger salamanders have been 

found up to 1.2 mi (2 kms) from 

breeding ponds. However, most 

California tiger salamanders are found 

closer to the ponds. Two studies 

conducted in Monterey and Solano 

Counties provide the best available data 

on upland movement distances. First, 

the mark-recapture study of Trenham et 

al. (2001) showed that California tiger 

salamanders commonly moved between 

ponds separated by 2,200 ft (671 m), 

suggesting that movements of this 

68586 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

magnitude are not rare. Second, the 

ongoing study at Olcott Lake (Solano 

County) has directly documented the 

presence of high densities of juvenile 

and adult California tiger salamanders at 

upland locations at least 1,312 ft (400 

m) from this breeding pond. Recent 

trapping efforts captured large numbers 

(representing 16 percent of total 

captures) of juvenile salamanders at 

2,296 ft (700 m) (Trenham et al.

unpublished data). Trenham and Shaffer 

(unpublished manuscript) determined 

that conserving upland habitats within 

2,200 ft (671 m) of breeding ponds 

would protect 95 percent of California 

tiger salamanders at their study location 

in Solano County. Based on this 

information, we focused on protecting 

upland areas within 2,200 ft (671 m) of 

a known breeding pond. Protecting an 

upland habitat area with a radius of 

2,200 ft (671 m) around a single pond 

yields a minimum area of 350 ac (145 

ha), but depending on the size of the 

pond, can be more than that. 

We used 2,200 ft (671 m) or 350 ac 

(145 ha) as a guide for the amount of 

upland habitat around known breeding 

locations to be mapped as critical 

habitat for the purposes of preserving 

California tiger salamanders within 

small mammal burrows (PCE 2). 

However, although the studies 

discussed above provide an 

approximation of the distances that 

California tiger salamanders can move 

from their breeding ponds in search of 

suitable upland refugia, we recognize 

that upland habitat features will 

influence California tiger salamander 

movements in a particular landscape. 

Therefore, where we had site-specific 

information on those features, such as 

land use, topography, and geologic 

landform, we altered critical habitat 

lines to reflect that information. In some 

locations, we protected a shorter 

distance than 2,200 ft (671 m) if: (1) 

Commercial or residential developed 

areas were present (e.g., Santa Maria), 

(2) the upland habitat was separated 

from the breeding habitat by a 

substantial barrier (e.g., State Highway 

101); (3) the habitat type within that 

distance was unsuitable for California 

tiger salamanders (e.g., hard chaparral); 

or (4) the area did not provide 

underground refugia because it could 

not support small mammal burrowing 

systems due to geological features such 

as fractured shales. We also excluded 

areas based on a combination of 

topography and geology. If soil and 

vegetative conditions are appropriate, 

California tiger salamanders can traverse 

areas of steep topography. Some steep 

areas do not support soils or vegetation 

that allow for California tiger 

salamanders to traverse. Therefore, we 

excluded areas that we know to be both 

steep and devoid of vegetation or 

burrowing mammal potential. 

In some cases, we extended the 

boundary of critical habitat beyond 

2,200 ft (671 m) if (1) suitable but 

unsurveyed breeding locations were 

present that would augment California 

tiger salamander populations; (2) no 

barriers to California tiger salamander 

dispersal are present and the habitat is 

suitable; (3) watershed boundaries for 

known breeding ponds exceed distances 

of 2,200 ft (671 m); or (4) the upland 

area between breeding ponds was 

conducive to California tiger salamander 

travel and would facilitate dispersal 

between ponds within the units which 

is essential for California tiger 

salamander gene flow.

We excluded most areas of frequently 

harvested agricultural lands from the 

boundaries of critical habitat areas. 

Agricultural lands were only included if 

they are directly adjacent to known 

breeding ponds, thereby providing the 

only available upland refugia for 

California tiger salamanders breeding in 

that pond, or providing essential 

connectivity between known breeding 

locations. In the case of the two units 

within the Santa Maria Valley, so little 

California tiger salamander good quality 

upland refugia habitat is left that 

restoration is necessary to provide 

sufficient good quality upland refugia to 

sustain a population of adult California 

tiger salamanders. Currently, the 

majority of habitat within these two 

units provide for dispersal purposes 

(i.e., they provide connectivity between 

aquatic and upland habitats). 

To determine the areas to be mapped 

within each unit for the purposes of 

dispersal (i.e. PCE 3), we used a distance 

of 0.70 mi (1.1 km) as a general guide. 

The only known study we are aware of 

that specifically investigated movement 

of California tiger salamanders between 

breeding ponds projected that 0.70 mi 

(1.1 km) would encompass 99 percent of 

interpond dispersal (Trenham et al.

2001; Trenham pers. comm. 2004) 

However, we recognize that (as with 

movements in search of suitable 

underground refugia) upland habitat 

features influence California tiger 

salamander movements within a 

particular landscape. Thus, we altered 

critical habitat unit boundaries to reflect 

site-specific knowledge where it was 

available to us. In some units, we 

protected a shorter dispersal distance 

than 0.70 mi (1.1 km) for similar reasons 

as described for PCE 2 (e.g. barriers 

prevented movement, no ponds existed 

in a given direction). 

In one unit (the eastern Santa Maria 

Unit) we included a dispersal corridor 

of 1.2 mi, which extends a greater 

distance than 0.70 mi (1.1 km) between 

breeding locations. In general, we 

designated critical habitat that allows 

for dispersal between breeding locations 

within 0.70 mi (1,158 m) of each other; 

however, we decreased or increased this 

distance based on site-specific 

conditions within each unit. We 

determined the longer corridor within 

this unit was justified given the 

observations by S. Sweet (in litt. 1998), 

where he found an adult California tiger 

salamander 1.2 mi (1.9 km) from the 

closest breeding location within this 

unit, and because of the relatively flat, 

barrier-free terrain between the breeding 

locations. We determined that the 

connection between the two known 

breeding areas is essential for the 

conservation of the California tiger 

salamander in this area, because, 

without it, these locations would 

become isolated and much more 

susceptible to extirpation. 

We are designating critical habitat on 

lands that contain the physical or 

biological features considered essential 

to the conservation of the California 

tiger salamander (see Primary 

Constituent Elements section). 

All of the known locations for the 

California tiger salamander in Santa 

Barbara County occur on non-Federal 

and private lands. Section 10(a)(1)(B) of 

the Act authorizes us to issue permits 

for the take of listed species incidental 

to otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts of the 

requested incidental take. We often 

exclude non-Federal public lands and 

private lands that are covered by an 

existing operative HCP and executed 

implementation agreement (IA) under 

section 10(a)(1)(B) of the Act from 

designated critical habitat because the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

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

the California tiger salamander, no lands 

are covered by an existing operative 

HCP. We are aware of three HCPs under 

development; however, we have not 

excluded these draft HCPs because we 

have not yet made an initial 

determination that they meet our 

issuance criteria and are ready for 

public notice and comment. 

When defining critical habitat 

boundaries, we made an effort to 

exclude all developed areas, such as 

towns, housing developments, and other 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68587

lands unlikely to contain PCEs essential 

for California tiger salamander 

conservation. However, our minimum 

mapping unit does not exclude all 

developed lands, such as lands 

supporting outbuildings, paddocks, 

roads, ROWs, paved areas, and lawns 

that do not contain PCEs. These areas 

are not included in the designation. 

These areas have been excluded by text 

and Federal actions limited to these 

areas would not trigger a section 7 

consultation, unless they affect the 

species and/or the PCEs in adjacent 

critical habitat. 

In summary, we designate six areas 

where populations of California tiger 

salamander are known to occur as 

critical habitat because the primary 

constituent elements need protection 

and/or special management to ensure 

any change to existing management 

does not adversely modify the critical 

habitat and protection of those areas is 

essential to the conservation of the 

species. We then mapped as critical 

habitat sufficient habitat to ensure the 

conservation of the California tiger 

salamander. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be essential for conservation may 

require special management 

considerations or protections. Areas in 

need of management for the California 

tiger salamander include not only the 

immediate locations where the species 

may be present at a particular point in 

time, but additional areas adjacent to 

these that are essential to provide for 

normal population fluctuations that may 

occur in response to natural and 

unpredictable events. The California 

tiger salamander are dependent upon 

habitat components beyond the 

immediate areas where individuals of 

the species occur at any given time, 

because these areas are important in 

maintaining ecological processes such 

as hydrology, expansion of distribution, 

recolonization, and maintenance of 

natural predator-prey relationships, all 

of which are essential for the 

conservation of the species. 

We believe that the areas proposed for 

critical habitat may require special 

management considerations or 

protections due to the threats outlined 

below: 

(1) Non-native and introduced 

predators such as bullfrogs and fish. 

(2) Disturbance of aquatic breeding 

habitats during the breeding season. 

(3) Sedimentation and erosion into 

water bodies.

(4) Contamination by chemicals such 

as those used for agricultural purposes. 

(5) Habitat loss due to construction of 

barriers or elimination of small mammal 

burrows. 

Relationship to 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, the 

effect on national security, 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, following an 

analysis, that the benefits of such 

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. 

Consequently, we may exclude an area 

from designated critical habitat based on 

economic impacts, the effect on national 

security, or other relevant impacts such 

as preservation of conservation 

partnerships, if we determine the 

benefits of excluding an area from 

critical habitat outweigh the benefits of 

including the area in critical habitat, 

provided the action of excluding the 

area will not 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 

those specific areas that are proposed 

for designation as critical habitat and 

those areas that are subsequently 

finalized (i.e., designated). We have 

applied the provisions of this section of 

the Act to land meeting the definition of 

critical habitat of the subject species to 

evaluate excluding them from critical 

habitat. Lands that we have either 

excluded from or not included in 

critical habitat based on those 

provisions include those covered by: (1) 

Legally operative Habitat Conservation 

Plans (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; (5) Fish and 

Wildlife Service Comprehensive 

Conservation Plans that provide 

assurances that the conservation 

measures for the species will be 

implemented and effective; and (6) 

adequate management plans or 

agreements that protect the primary 

constituent elements of the habitat. 

Critical Habitat Designation 

We are designating six units as critical 

habitat for the California tiger 

salamander. The critical habitat areas 

described below constitute our best 

assessment at this time of the areas 

essential for the conservation of the 

California tiger salamander. The six 

areas designated as critical habitat are: 

(1) Western Santa Maria/Orcutt; (2) 

eastern Santa Maria; (3) western Los 

Alamos/Careaga; (4) eastern Los 

Alamos; (5) Purisima Hills; and (6) 

Santa Rita Valley. 

The approximate area encompassed 

within each critical habitat unit is 

shown in Table 2.

TABLE 2.—FINAL CRITICAL HABITAT UNITS FOR THE CALIFORNIA TIGER SALAMANDER IN SANTA BARBARA COUNTY

Critical habitat unit Acres Hectares 

1. Western Santa Maria/Orcutt ................................................................................................................................ 4,135 1,673 

2. Eastern Santa Maria ............................................................................................................................................ 2,909 1,177 

3. Western Los Alamos/Careaga ............................................................................................................................ 1,451 587 

4. Eastern Los Alamos ............................................................................................................................................ 90 36 

5. Purisima Hills ....................................................................................................................................................... 1,957 792 

6. Santa Rita Valley ................................................................................................................................................. 638 258 

Total .................................................................................................................................................................. 11,180 4,523 

68588 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

The majority of the acreage occurs on 

privately owned land. We know of no 

Federal, State, tribal, or military lands 

within these boundaries. A small 

portion of land within the western Santa 

Maria/Orcutt Unit is owned by local 

jurisdictions, including the county of 

Santa Barbara and the Laguna County 

Sanitation District. 

Critical habitat includes California 

tiger salamander habitat throughout the 

species’ range in Santa Barbara County, 

California. Brief descriptions of all 

units, and reasons why they are 

essential for the conservation of the 

California tiger salamander, are 

presented below. Each unit contains 

essential aquatic, upland, and dispersal 

habitat. Each unit is occupied by 

California tiger salamanders based upon 

observations recorded since 2000. 

Unit 1: Western Santa Maria/Orcutt 

Modifications were made to this unit 

as a result of a revised mapping 

methodology, which resulted in more 

accurately showing the boundary of this 

unit. This modification resulted in the 

reduction from 4,349 ac (1,760 ha) to 

4,135 ac (1,673 ha). 

Unit 1 consists of 4,135 ac (1,673 ha) 

west and southwest of the city of Santa 

Maria, mostly in unincorporated areas 

of the County and the community of 

Orcutt. This area encompasses the 

known California tiger salamander 

breeding sites extending from the 

Casmalia Hills on the south to the Santa 

Maria Airport on the north and from 

west of Black Road eastward to Highway 

135. This unit makes up 26 percent of 

the total area we have identified as 

containing the PCEs for the species and 

as being essential to the conservation of 

the species in Santa Barbara County. 

The unit contains 12 known California 

tiger salamander breeding ponds and 

several water bodies that are suitable for 

breeding California tiger salamanders 

but that have never been surveyed. The 

12 known breeding ponds in this unit 

constitute approximately 26 percent of 

the known breeding ponds (46) in Santa 

Barbara County. 

Of even greater significance, Unit 1 

contains 7 (approximately 37 percent) of 

the 19 natural vernal ponds that occur 

in Santa Barbara County. These natural 

ponds occur on the Orcutt Dune Sheet, 

which contains soils that are unique to 

the Santa Maria Valley. The Orcutt 

Dune Sheet is an ancient, windblown 

sand deposit that covers the southern 

one-half to two-thirds of the Santa Maria 

Valley (Hunt 1993). All natural 

California tiger salamander breeding 

sites occurring on the sheet are 

classified as dunal or deflation pools 

and ponds, a type of California tiger 

salamander breeding pond occurring 

only within the two units within the 

Santa Maria Valley. The five remaining 

known ponds occur along the base of 

the Casmalia Hills, just off the 

southwestern edge of the Orcutt Dune 

Sheet.

Population growth and the 

concomitant residential and commercial 

development are the greatest threat to 

California tiger salamanders within this 

unit. The city of Santa Maria currently 

sustains a population of 82,148 people 

and is anticipated to reach a population 

of 110,800 people by 2020, with an 

annual growth rate of 1.8 percent (Santa 

Barbara County Association of 

Governments 2002). Annexations to 

further development are proposed in the 

remaining California tiger salamander 

habitat (Marc Bierdzinski, Santa Maria 

Community Development Department, 

pers. comm. 2003). 

The city of Santa Maria is the fastest 

growing city in Santa Barbara County, 

with a 26 percent increase in population 

in the 1990s (16,000 new residents). 

Santa Barbara County’s population is 

projected to grow by at least 160,000 

people in the next 30 years (Santa 

Barbara County Planning and 

Development 2002). Depending on 

housing densities, the county may need 

over 15,000 ac (6,070 ha) of residentially 

zoned land on which to build homes to 

meet this goal (Santa Barbara County 

Planning and Development 2002). All of 

the urban areas in the county except 

Santa Maria and Orcutt have nearly 

exhausted land zoned for residential 

development. The California 

Department of Housing and Community 

Development expects the county and 

cities to set aside land for over 17,500 

homes in the next seven years (Santa 

Barbara County Planning and 

Development 2002). Approximately 

3,600 ac (1,457 ha) of prime agricultural 

land has been annexed to meet the 

increase in population. Prime farmland 

east and west of Santa Maria currently 

designated by the City of Santa Maria as 

‘‘No Urban Development Areas’’ are 

expected to face increasing pressure to 

develop as the city exhausts land 

available for development around 2010 

(Santa Barbara County Planning and 

Development 2002). 

Several development projects have 

been proposed within Unit 1. The Santa 

Maria Airport District proposes to build 

a 400-ac (162-ha) research park and golf 

course just south of the airport on a 

parcel with three known California tiger 

salamander breeding ponds (Rincon 

2002). The Orcutt Community Plan 

identifies Key Site 22 as a site for 60 

percent buildout to a maximum of 3,000 

units of dwellings (Santa Barbara 

County 2002). This site lies entirely 

within the critical habitat unit. 

Additional proposed development 

projects include Union Valley Parkway 

(City of Santa Maria 2003) and 

expansion of the Laguna County 

Sanitation District’s wastewater 

treatment plan. 

In the West Santa Maria 

subpopulation, 78 percent of California 

tiger salamander upland habitat has 

been lost or separated from breeding 

ponds by fragmentation. Three large 

development projects (Mahoney Ranch, 

Key Site 22, and the Santa Maria Airport 

Research Park and Golf Course) threaten 

most of the remaining habitat. The Santa 

Maria Airport has worked with the 

Service to develop a plan that will 

minimize impacts to the California tiger 

salamander; however, one of the most 

productive ponds, the easternmost pond 

on the Santa Maria Airport property, 

will be permanently isolated from all 

other ponds on a 120-acre (49-ha) 

reserve once the Santa Maria Airport 

Research Park goes forward (Service 

files). A number of smaller development 

projects (Laguna Sanitation District 

Expansion, construction of three 

administrative buildings on Foster 

Road, Union Valley Parkway) also 

threaten to further reduce the available 

upland habitat and fragment the 

breeding ponds from each other. 

This unit is essential to the 

conservation of the California tiger 

salamander because it contains 37 

percent of the natural vernal pools for 

this Santa Barbara population. It is 

critical for the conservation of the 

species to conserve the California tiger 

salamander within a range of habitat 

types as protecting a variety of habitat 

conditions will increase the ability of 

the species to survive stochastic events. 

This unit requires special 

management to continue efforts to 

protect PCEs essential for the 

conservation of California tiger 

salamanders. In particular, one pond is 

known to have introduced fish, another 

is subject to berm failure, and bullfrogs 

breed in close proximity to a third site. 

Managing these ponds to maintain the 

existing PCEs is essential for the 

conservation of the California tiger 

salamander. Addressing the removal of 

upland habitat (PCE 2) and dispersal 

habitat (PCE 3) due to building 

pressures through special management 

or protection is essential for the 

conservation of the California tiger 

salamander. 

Unit 2: Eastern Santa Maria 

Modifications were made to this unit 

as a result of a revised mapping 

methodology, which resulted in more 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68589

accurately showing the boundary of this 

unit. This modification resulted in the 

reduction from 2,985 ac (1,208 ha) to 

2,909 ac (1,177 ha). 

This unit covers a portion of the 

eastern half of the Orcutt Dune Sheet, 

but is separated from the western Santa 

Maria Valley unit by a broad area of 

urban and agricultural development, 

including State Highways 135 and 101. 

The unit is 2,909 ac (1,177 ha) in size 

and is bordered by State Highway 101 

on the west, the Solomon Hills on the 

south, the Sisquoc River on the east, and 

the Santa Maria River floodplain on the 

north. This unit makes up 26 percent of 

the total area we have identified as 

containing the PCEs for the species and 

as being essential to the conservation of 

the species in Santa Barbara County. 

The unit contains 4 known California 

tiger salamander breeding ponds and 

additional water bodies that are suitable 

for breeding California tiger 

salamanders but that have never been 

surveyed. 

The four known breeding ponds in 

Unit 2 are natural vernal pools. 

Therefore, Unit 2 represents 

approximately 21 percent of the natural 

vernal pools used for California tiger 

salamander breeding in Santa Barbara 

County (19 natural vernal ponds total). 

The four of the known breeding ponds 

in Unit 2 have had substantial 

alterations to the surrounding upland 

habitats, and substantial fragmentation 

of the habitat between breeding ponds 

has occurred.

This unit contains primary 

constituent elements essential to the 

conservation of the California tiger 

salamander in Santa Barbara County 

because it contains 21 percent of the 

natural vernal pools (PCE 1) in the Santa 

Barbara County population. It is critical 

for the conservation of the species to 

conserve the California tiger salamander 

within a range of habitat types as 

protecting a variety of habitat conditions 

will increase the ability of the species to 

survive stochastic events. At least 10 

additional ponds that appear suitable 

for California tiger salamander breeding 

exist within the unit. 

As mentioned in the discussion under 

Unit 1, the Santa Maria Valley is quickly 

growing, and both Unit 1 and Unit 2 are 

facing increasing pressure due to 

development. Some proposed projects 

further threaten the remaining 

California tiger salamander habitat, 

including the 2000-ac (809-ha) Bradley 

Ranch proposed development project 

(John L. Wallace & Associates 2002), 

scattered low-density residential 

development, two soil remediation 

projects, and the construction of a radio 

tower. Additionally, Unit 2 has also 

experienced some loss of California tiger 

salamander habitat due to illegallyconducted ground disturbing activities. 

Unit 3: Western Los Alamos/Careaga 

Part of this unit was excluded from 

this final critical habitat designation 

because this area is actively managed for 

the protection and enhancement of 

California tiger salamander habitat (refer 

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

the Act). This modification resulted in 

the reduction from 2,181 ac (882 ha) to 

1,451 ac (587 ha). 

This unit consists of 1,451 ac (587 ha) 

to the west of Highway 101, bordered on 

the west by the Careaga Divide. Four 

ponds within this unit have been 

documented as breeding habitat by 

California tiger salamanders. Several 

other agricultural impoundments are 

located within dispersal distance of the 

California tiger salamander breeding 

ponds in the western Los Alamos 

Valley. These human-made ponds may 

also be used by California tiger 

salamanders for breeding. 

In contrast to the dunal or deflation 

ponds found in the two units to the 

north within the Santa Maria Valley, the 

natural breeding ponds within the 

Western Los Alamos/Careaga Unit are 

found in structural basin ponds. These 

ponds occur in the valleys or 

depressions along the axes of the 

synclines. The natural ponds within the 

unit occur along the axis of the Los 

Alamos Syncline and an unnamed 

syncline occurring parallel to and west 

of the Los Alamos Syncline. 

This unit contains primary 

constituent elements essential to the 

conservation of the California tiger 

salamander because it contains some of 

the highest-quality natural California 

tiger salamander breeding pools 

remaining in the County. The Careaga 

Divide pond, located on the western 

side of the unit, is one of the most 

unique and pristine vernal ponds (PCE 

1) where California tiger salamanders 

breed. The wetland is unique in that it 

is enclosed on two sides by extensive, 

dense coast live oak woodland, and by 

coastal sage scrub and grasslands. The 

unit also provides large blocks of 

continuous unfragmented upland 

habitat with few known sources of 

mortality, all occurring within a 

working rangeland landscape (PCE 2 

and 3). The unit requires special 

management in the form of fish removal 

from at least one pond and sediment 

control at three ponds (PCE 1). This unit 

also requires protection and special 

management to reduce other threats, 

including berm failure and vineyard 

development proposals that could 

reduce aquatic, upland refugia and 

dispersal habitats (PCEs 1, 2 and 3). The 

current surrounding land use is cattle 

grazing. 

Unit 4: Eastern Los Alamos 

Part of this unit was excluded from 

this final critical habitat designation 

because this area is actively managed for 

the protection and enhancement of 

California tiger salamander habitat (refer 

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

the Act section below). This 

modification resulted in the reduction 

from 1,302 ac (527 ha) to 90 ac (36 ha). 

This unit consists of two separate 

parcels, one 27 ac (10.9 ha) parcel and 

one 63.7 ac (25.8 ha) parcel, for a total 

of 90 ac (36 ha). This unit is located 

south of Highway 101 and southeast of 

the town of Los Alamos. This 

population is currently comprised of 

four known California tiger salamander 

breeding ponds; however, the property 

on which these four ponds are located 

has been excluded from this designation 

due to a conservation strategy that the 

landowners have created to enhance 

existing and create additional California 

tiger salamander aquatic habitat. 

Given the small number of known 

breeding populations, the acreage 

remaining in this final designation 

contains primary constituent elements 

essential for the conservation of the 

California tiger salamander, because, 

despite its location adjacent to State 

Highway 101, it provides essential 

upland habitat. In addition, the acreage 

remaining within this unit is essential to 

support a self-sustaining population of 

California tiger salamanders. 

Furthermore, the populations within 

this unit constitute the easternmost 

location of the species in Santa Barbara 

County. It is critical for the conservation 

of the species to conserve the California 

tiger salamander within the range of 

habitat types where it is found in 

nature. Protecting a variety of habitat 

conditions will increase the ability of 

the species to survive stochastic events. 

The unit requires special management 

to address the threats of road mortality 

and upland habitat loss. 

Unit 5: Purisima Hills 

Part of this unit was excluded from 

this final critical habitat designation 

because this area is actively managed for 

the protection and enhancement of 

California tiger salamander habitat (refer 

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

the Act section). This modification 

resulted in the reduction from 2,359 ac 

(955 ha) to 1,957 ac (792 ha). 

Unit 5 consists of 1,957 ac (792 ha) 

along the crest and south slope of the 

west-central portion of the Purisima 

Hills. The unit encompasses 14 of the 16 

68590 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

documented breeding ponds in the 

subpopulation. The portion of the 

Purisima Hills that contains suitable 

habitat lies upon the lower Careaga 

Formation, bounded to the eastsoutheast by outcrops of Sisquoc 

Formation, and bounded to the westnorthwest by badlands topography of 

sandier horizons within the upper 

Careaga Formation. Neither the Sisquoc 

nor the upper Careaga formations will 

retain water in unlined ponds (PCE 1); 

thus, ponds require special management 

in the form of artificial lining with 

materials such as clay or butyl rubber 

sheeting. Pond elevations range from 

500 to 1400 ft (152 to 427 m). The 

documented breeding localities are all 

stock ponds, most of which were 

constructed in the mid to late 1950s 

(Thomas Silva, Sr., pers. comm. 2001); 

of these, only one may have been based 

on a preexisting natural depression. 

This unit contains the primary 

constituent elements essential for the 

conservation of the California tiger 

salamander. Although the occupied 

ponds in this unit are human made and 

thus require frequent maintenance, the 

unit is the most remote of all the units 

and has the fewest documented threats. 

Because of the steepness of the 

topography, conversion to farmland or 

high-intensity development is not 

feasible. However, the Service is aware 

of a recent proposal to develop 

ranchette-style houses throughout this 

unit within California tiger salamander 

dispersal distance of known ponds 

(Service files). The Service has not 

received a final proposal. The unit is 

unique in that it contains habitat unlike 

the other 5 units; it is steeper terrain 

and is more densely vegetated than all 

other units. This location contains the 

only known California tiger salamander 

breeding ponds completely surrounded 

by coastal sage chaparral vegetation. 

Few other locations in Santa Barbara 

County are within chaparral or mixed 

chaparral habitats.

The Purisima Hills Unit is also 

essential in that it provides a linkage 

between the Santa Rita Valley Unit to 

the southwest and the Western Los 

Alamos/Careaga Unit to the north. 

Although many of the units may be 

permanently separated from each other 

by urban development and State 

Highway 101, these three units still 

likely retain some connectivity. Several 

stockponds that have never been 

surveyed lie between the units; genetic 

exchange between the two critical 

habitat units. 

The unit requires special management 

to address threats of habitat loss. 

Unit 6: Santa Rita Valley 

Modifications were made to this unit 

to exclude an area on the edge of the 

unit that does not contain the primary 

constituent elements. This area was 

included in the proposed designation as 

a result of a mapping error. This 

modification resulted in the reduction 

from 744 ac (301 ha) to 638 ac (258 ha). 

This 638-ac (258-ha) unit constitutes 

the southernmost locality for California 

tiger salamanders in Santa Barbara 

County. The unit is bisected by 

Highway 246, a heavily traveled 

thoroughfare between the towns of 

Buellton and Lompoc. Two confirmed 

breeding locations (representing three 

ponds) lie in the Santa Rita Valley. 

However, one of these is a human-made 

pond isolated from other units and is 

not included within the boundaries of 

critical habitat. The other confirmed 

breeding locality consists of two 

hydrobasins within 50 ft (15 m) of one 

another and adjacent to Highway 246. 

Adult California tiger salamanders were 

often found dead on roads after rain 

events during the 1980s. Three ponds 

on a neighboring property to the east 

and two ponds on the south side of 

Highway 246 likely formed a complex 

with this pond in the past. However, the 

ponds to the east were degraded by 

introduced fish and vineyards, while 

Highway 246 forms a substantial barrier 

to the southern ponds. The ponds south 

of Highway 246 have never been 

surveyed for California tiger 

salamanders. Although one landowner 

reported finding a California tiger 

salamander in a water pump in 2000, 

we have been unable to obtain 

permission to conduct surveys to 

confirm or refute this record. 

The known ponds are based on 

natural features developed on an active 

syncline in the Careaga Formation east 

of the Santa Rita-Drum Canyon divide 

along the north side of California 

Highway 246. The ponds are natural but 

have been excavated so that the smaller 

pond appears to retain water year 

round. 

This unit contains primary 

constituent elements essential to the 

conservation of the California tiger 

salamander because it constitutes the 

only extant subpopulation remaining 

within the Santa Rita Valley. As stated 

previously, given the small number of 

remaining breeding locations, all six 

units contain primary constituent 

elements that are essential. In addition, 

due to the numbers of salamanders 

found dead on the roads in the 1980s, 

the ponds were likely productive in the 

past. Highway 246 constitutes the main 

threat to the breeding location. 

Furthermore, Caltrans has proposed to 

widen this road, which would 

substantially infringe on the footprint of 

the ponds. Even without widening, the 

mortality by vehicular traffic and 

contaminated runoff entering the pond 

provide substantial threats to the 

breeding site. 

Because of the known threats due to 

the existence of the highway and the 

likelihood of section 7 consultations 

related to its widening it is likely that 

a number of special management 

requirements would result from 

consultations. The precarious position 

of the pond directly adjacent to a busy 

road may require measures to reduce the 

threat of contaminants entering the 

pond and to enhance survival of 

California tiger salamanders attempting 

to cross the road. In addition, 

connectivity to potential breeding 

locations to the south of the highway 

should be facilitated in some manner 

(PCE 3). 

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 

response to recent court decisions 

invalidating our regulatory definition of 

adverse modification under 402.2, we 

are not relying on that definition in this 

discussion of critical habitat effects. 

Instead in evaluating whether 

destruction or adverse modification of 

critical habitat would occur, we rely on 

the statutory definition of critical 

habitat quoted earlier in this rule. We 

must analyze whether, if a proposed 

Federal agency action were 

implemented, critical habitat would 

remain functional to serve its intended 

conservation role for 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 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68591

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 destroy or adversely 

modify critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in the destruction or adverse 

modification of critical habitat, we also 

provide reasonable and prudent 

alternatives to the project, if any are 

identifiable. ‘‘Reasonable and prudent 

alternatives’’ are defined at 50 CFR 

402.02 as alternative actions identified 

during consultation that can be 

implemented in a manner consistent 

with the intended purpose of the action, 

that are consistent with the scope of the 

Federal agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that the 

Director believes would avoid 

destruction or adverse modification of 

critical habitat. Reasonable and prudent 

alternatives can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where critical 

habitat is subsequently designated and 

the Federal agency has retained 

discretionary involvement or control 

over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation or conference with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

We may issue a formal conference 

report if requested by a Federal agency. 

Formal conference reports on proposed 

critical habitat contain an opinion that 

is prepared according to 50 CFR 402.14, 

as if critical habitat were designated. We 

may adopt the formal conference report 

as the biological opinion when the 

critical habitat is designated, if no 

substantial new information or changes 

in the action alter the content of the 

opinion (see 50 CFR 402.10(d)). 

Activities on Federal lands that may 

affect this species 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 U.S. 

Army Corps of Engineers 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 would impair the 

functionality of the primary constituent 

elements within a critical habitat unit to 

serve their intended conservation role 

for the species. 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.

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. 

Actions that may affect critical habitat 

include, but are not limited to: 

(1) Actions that would affect waters of 

the United States by the Army Corps 

under section 404 of the Clean Water 

Act. Such activities could include, but 

are not limited to, erosion control 

activities and flood control activities. 

These activities could eliminate or 

reduce the habitat necessary for the 

reproduction or growth of California 

tiger salamanders. 

(2) Actions that would affect the 

regulation of water flows by any Federal 

agency. Such activities could include, 

but are not limited to, damming, 

diversion, and channelization. These 

activities could eliminate or reduce the 

habitat necessary for the reproduction or 

growth of California tiger salamanders. 

(3) Actions that would involve 

regulations funded or permitted by the 

Federal Highway Administration. (We 

note that the Federal Highway 

Administration does not fund the 

routine operations and maintenance of 

the State highway system.) Such 

activities could include, but are not 

limited to, new road construction and 

right-of-way designation. These 

activities could eliminate or reduce the 

upland habitat and/or dispersal habitat 

necessary for sheltering and foraging of 

California tiger salamanders, and 

necessary for connectivity between 

aquatic breeding habitats. 

(4) Actions that would involve 

voluntary conservation measures by 

private landowners funded by the 

Natural Resources Conservation Service. 

Such activities could include, but are 

not limited to, stockpond maintenance 

and erosion control practices. These 

activities could eliminate or reduce 

upland and/or aquatic habitat for the 

California tiger salamander. 

(5) Actions that would involve 

regulation of airport improvement 

activities by the Federal Aviation 

Administration. Such activities could 

include, but are not limited to, the 

creation or expansion of airport 

facilities. These activities could 

eliminate or reduce upland and/or 

aquatic habitat for the California tiger 

salamander. 

(6) Actions that would involve 

licensing of construction of 

communication sites by the Federal 

Communications Commission. Such 

activities could include, but are not 

limited to, the installation of new radio 

equipment and facilities. These 

activities could eliminate or reduce the 

habitat necessary for the reproduction, 

sheltering, foraging, or growth of 

California tiger salamanders. 

(7) Actions that would involve 

funding of activities by the U.S. 

Environmental Protection Agency, 

Department of Energy, Federal 

Emergency Management Agency, 

Federal Highway Administration, or any 

other Federal agency. Such activities 

could include, but are not limited to, 

activities associated with the cleaning 

up of Superfund sites, erosion control 

activities, and flood control activities. 

These activities could eliminate or 

reduce upland and/or aquatic habitat for 

the California tiger salamander. 

The six critical habitat units are 

occupied by the species based on 

68592 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

observations made within the last four 

years. Additionally, all habitats within 

this designation are likely to be used by 

the California tiger salamander, whether 

for foraging, breeding, growth of larvae 

and juveniles, dispersal, migration, 

genetic exchange, or sheltering. Thus, 

all critical habitat units are occupied by 

the species. Federal agencies already 

consult with us on activities in areas 

currently occupied by the species or if 

the species may be affected by the 

action, to ensure that their actions do 

not jeopardize the continued existence 

of the species. 

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

Act 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. An 

area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. 

In our critical habitat designations, we 

use both the provisions outlined in 

sections 3(5)(A) and 4(b)(2) of the Act to 

evaluate those specific areas that we are 

considering proposing designating as 

critical habitat as well as for those areas 

that are formally proposed for 

designation as critical habitat. Lands we 

have found do not meet the definition 

of critical habitat under section 3(5)(A) 

or have excluded pursuant to section 

4(b)(2) include those covered by the 

following types of plans if they provide 

assurances that the conservation 

measures they outline will be 

implemented and effective: (1) Legally 

operative HCPs that cover the species, 

(2) draft HCPs that cover the species and 

have undergone public review and 

comment (i.e., pending HCPs), (3) Tribal 

conservation plans that cover the 

species, (4) State conservation plans that 

cover the species, and (5) National 

Wildlife Refuge System Comprehensive 

Conservation Plans. 

Conservation Strategies 

We are excluding three properties 

from this final critical habitat 

designation that have conservation 

strategies in place for the California tiger 

salamander because we believe that they 

are appropriate for exclusion pursuant 

to the ‘‘other relevant factor’’ provisions 

of section 4(b)(2). 

One landowner, Mr. Scheller, in Unit 

5 (Purisima Hills), has developed a 

conservation strategy for his property 

which supports the large natural vernal 

lake referred to as Laguna Seca (LOAL–

11 on the Santa Barbara County 

California Tiger Salamander Habitat 

Map, August 2001), its essential 

associated watershed, and other bodies 

of water that could potentially be used 

for breeding by the California tiger 

salamander. Although Laguna Seca did 

not contain California tiger salamanders 

during surveys conducted in 2002, it 

was likely the natural source of 

California tiger salamanders for the 

human-made ponds in the Purisima 

Hills to the south and southwest of the 

pond. Largemouth bass (Micropterus 

salmoides) and mosquitofish were 

recorded during surveys in 2002 (Paul 

Collins, Santa Barbara Museum of 

Natural History, pers. comm. 2002). The 

introduced fish likely preclude 

successful breeding, although adult 

California tiger salamanders are likely 

present in the adjacent uplands, given 

the successful breeding occurring in the 

other known ponds in the vicinity. 

Special management is needed to 

remove introduced fish from Laguna 

Seca. In the conservation strategy 

developed with Mr. Scheller, the 

landowner proposes special 

management considerations and 

protections for the California tiger 

salamander habitat on his property. 

The goals of the above conservation 

strategy for the Scheller property 

include: 

(1) Manage livestock grazing activities 

and maintenance of water sources in a 

way that is compatible with California 

tiger salamander in Santa Barbara 

County; 

(2) Manage to limit sediment input 

into the known and potential breeding 

ponds; 

(3) Limited or restricted use of 

chemicals within the watershed and/or 

within 2,200 ft (671 m) of the known 

and potential breeding ponds; 

(4) Use other methods compatible 

with the California tiger salamander to 

control the amount of vegetation around 

the known and potential breeding ponds 

if livestock are not available; and

(5) Avoid introducing non-native 

predators into the known and potential 

breeding ponds. 

Kendall-Jackson Wine Estates, Ltd. 

(Kendall-Jackson) leases certain 

property in Unit 3 (Western Los 

Alamos/Careaga) and Unit 4 (Eastern 

Los Alamos). The property in Unit 3 

(hereinafter, the Sainz property) is 

owned by the Darwin E. Sainz 1990 

Trust, Darwin E. Sainz and Jeanette T. 

Sainz, trustees (hereinafter, the Sainz 

Family). The property in Unit 4 

(hereinafter the Los Robles property) is 

owned by Jackson Family Investments 

II, LLC, an affiliate of Kendall-Jackson. 

Kendall-Jackson, in conjunction with 

each of these property owners, has 

developed a conservation plan for these 

properties. The Sainz property includes 

three known California tiger salamander 

breeding ponds (SISQ–1, SISQ–2, and 

SISQ–4, as referenced on the Santa 

Barbara County California Tiger 

Salamander Habitat Map, August 2001) 

and their essential associated 

watersheds. This area, located in the 

southeastern half of the Western Los 

Alamos/Careaga subpopulation, was 

proposed for conversion to vineyards 

prior to the listing of the salamander. 

Since listing, the lessee and the 

landowner have supported California 

tiger salamander conservation and have 

been working towards developing a 

vineyard proposal that would conserve 

California tiger salamanders breeding in 

the known ponds. We have worked with 

the landowner in this area on an erosion 

control project within the associated 

watershed of SISQ–1. In the 

conservation strategy for this property, 

special management considerations and 

protections are proposed for the 

California tiger salamander habitat. 

The Los Robles property in Unit 4 

(Eastern Los Alamos) contains all four 

known California tiger salamander 

ponds in this subpopulation (LOAL–18, 

LOAL–19, ZACA–3, and ZACA–5, as 

referenced on the Santa Barbara County 

California Tiger Salamander Habitat 

Map, August 2001). Two of the ponds 

(LOAL–18 and LOAL–19) are natural 

structural basin ponds found in 

depressions. The other two ponds 

(ZACR–3 and ZACR–5) are bermed 

agricultural impoundments located in 

an unnamed, intermittent drainage 

located 1.0 to 1.5 miles southeast of the 

two natural ponds. In the conservation 

strategy for this property, KendallJackson and its affiliate, the property 

owner, have agreed to special 

management considerations and 

protections for the California tiger 

salamander habitat. The Service and 

Kendall-Jackson are in the process of 

discussing further conservation 

opportunities for this property in 

connection with a development project 

recently proposed by Kendall-Jackson. 

The goals of the above conservation 

strategies for the Sainz property and the 

Los Robles property include: 

(1) Elimination of sediment input into 

the known and potential breeding 

ponds; 

(2) Limited or restricted use of 

chemicals within the watershed and/or 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68593

within 2,200 ft (671 m) of the known 

and potential breeding ponds; 

(3) Use other methods compatible 

with the California tiger salamander to 

control the amount of vegetation around 

the known and potential breeding ponds 

if livestock are not available; 

(4) Enhancement of existing aquatic 

habitat and, in the case of the Los 

Robles property, creation of new aquatic 

habitat; and 

(5) Avoiding the introduction of nonnative predators into the known and 

potential breeding ponds. 

(1) Benefits of Inclusion 

Designation of critical habitat 

provides important information on 

those habitats and their primary 

constituent elements that are essential 

to the conservation of the species. This 

information is particularly important to 

any Federal agency, State, county, local 

jurisdiction, conservation organization, 

or private landowner that may be 

evaluating adverse actions or 

implementing conservation measures 

that involve those habitats. The benefit 

of a critical habitat designation would 

ensure that any actions authorized, 

funded, or carried out by a Federal 

agency would not likely destroy or 

adversely modify any critical habitat. 

All habitats within this designation are 

occupied. In the absence of critical 

habitat, any section 7 consultation for 

potential adverse effects to the species 

would not ensure adverse modification 

of critical habitat is avoided; however, 

the consultation would ensure the 

proposed action would not jeopardize 

the continued existence of the species in 

the wild. 

Where conservation strategies are in 

place, our experience indicates that this 

benefit is small or non-existent. 

Currently approved conservation 

strategies are already designed to ensure 

the long-term survival of covered 

species within the plan area. Where we 

have an approved conservation strategy, 

lands that we ordinarily would define as 

critical habitat for covered species will 

normally be protected by the terms of 

the conservation strategy. These 

conservation strategies include 

management measures designed to 

protect, restore, and enhance the land’s 

value as habitat for covered species. We 

have determined that the benefits of 

designating critical habitat on the three 

properties covered by the described 

conservation strategies are small. 

(2) Benefits of Exclusion 

Approximately 80 percent of 

imperiled species in the United States 

occur partly or solely on private lands 

where the Service has little management 

authority (Wilcove et al. 1996). 

Proactive voluntary conservation efforts 

are necessary to prevent the extinction 

and promote the recovery of the 

California tiger salamander on private 

lands in northern Santa Barbara County. 

The Service believes that the 

California tiger salamander populations 

within the properties with conservation 

strategies will benefit substantially from 

landowner voluntary management 

actions due to a reduction in 

competition with non-native predators, 

a reduction in risk of chemically-altered 

aquatic habitats, a reduction in risk of 

loss of aquatic and upland habitat, and 

the enhancement and creation of aquatic 

habitat. The conservation benefits of 

critical habitat are primarily regulatory 

or prohibitive in nature. Where 

consistent with the discretion provided 

by the Act, the Service believes it is 

necessary to implement policies that 

provide positive incentives to private 

landowners to voluntarily conserve 

natural resources and that remove or 

reduce disincentives to conservation 

(Wilcove et al. 1998). Thus, we believe 

it is essential for the recovery of the 

California tiger salamander in Santa 

Barbara County to build on continued 

conservation activities such as these 

with a proven partner, and to provide 

positive incentives for other private 

landowners in Santa Barbara County 

who might be considering implementing 

voluntary conservation activities but 

have concerns about incurring 

incidental regulatory or economic 

impacts. 

In addition, recovery actions 

involving the enhancement and creation 

of aquatic habitat on private lands 

requires the voluntary cooperation of 

the landowner (Bean 2002; James 2002; 

Knight 1999; Main et al. 1999; Norton 

2000; Shogren et al. 1999; Wilcove et al.

1998). Therefore, ‘‘a successful recovery 

program is highly dependent on 

developing working partnerships with a 

wide variety of entities, and the 

voluntary cooperation of thousands of 

non-Federal landowners and others is 

essential to accomplishing recovery for 

listed species’’ (Crouse et al. 2002). The 

land within this designation that is 

suitable for conservation of threatened 

and endangered species is mostly 

owned by private landowners; therefore, 

successful recovery of the California 

tiger salamander in northern Santa 

Barbara County is especially dependent 

upon working partnerships and the 

voluntary cooperation of non-Federal 

landowners.

(3) The Benefits of Exclusion Outweigh 

the Benefits of Inclusion 

Based on the above considerations, 

and consistent with the direction 

provided in section 4(b)(2) of the Act 

and the recent Federal District Court 

decision concerning critical habitat 

(Center for Biological Diversity v. 

Norton, Civ. No. 01–409 TUC DCB D. 

Ariz. Jan. 13, 2003), we have determined 

that the benefits of excluding the 

Scheller property in Unit 2, the Sainz 

property in Unit 3, and the Los Robles 

property in Unit 4 as critical habitat 

outweigh the benefits of including them 

as critical habitat for the California tiger 

salamander in Santa Barbara County. 

This conclusion is based on the 

following factors: 

1. The Scheller, Sainz, and Los Robles 

properties are currently being managed 

on a voluntary basis in cooperation with 

the Service, State, and other private 

organizations to achieve important 

conservation goals. 

2. Simple regulation of ‘‘harmful 

activities’’ is not sufficient to conserve 

these species. Landowner cooperation 

and support are required to prevent the 

extinction and promote the recovery of 

all of the listed species in northern 

Santa Barbara County due to the need to 

implement proactive conservation 

actions such as predator management, 

weed control, and aquatic habitat 

enhancement and creation. Exclusion of 

these properties from this critical 

habitat designation will help the Service 

maintain and improve this partnership 

by formally recognizing the positive 

contributions of Mr. Scheller, the Sainz 

Family and Kendall-Jackson and its 

affiliate to the recovery of the California 

tiger salamander in Santa Barbara 

County, and by streamlining or reducing 

unnecessary regulatory oversight. 

3. Given the current conservation 

strategies created and implemented by 

Mr. Scheller, the Sainz Family and 

Kendall-Jackson, the Service believes 

the additional regulatory and 

educational benefits of including these 

lands as critical habitat are relatively 

small. The designation of critical habitat 

can serve to educate the general public 

as well as conservation organizations 

regarding the potential conservation 

value of an area, but this goal is already 

being accomplished through the 

identification of this area in the 

management plans described above. 

Likewise, there will be little additional 

Federal regulatory benefit to the species 

because all units are already occupied 

by the California tiger salamander and a 

section 7 nexus already exists. The 

Service is unable to identify any other 

68594 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

potential benefits associated with 

critical habitat for these properties. 

4. Excluding these privately-owned 

lands with conservation strategies from 

critical habitat may, by way of example, 

provide positive social, legal, and 

economic incentives to other nonFederal landowners in northern Santa 

Barbara County who own lands that 

could contribute to listed species 

recovery if voluntary conservation 

measures on these lands are 

implemented (Norton 2000; Main et al.

1999; Shogren et al. 1999; Wilcove and 

Chen 1998). 

In conclusion, we find that the 

exclusion of critical habitat on Mr. 

Scheller’s property, the Sainz property, 

and the Los Robles property would most 

likely have a net positive conservation 

effect on the recovery and conservation 

of the California tiger salamander in 

Santa Barbara County when compared 

to the positive conservation effects of a 

critical habitat designation. As 

described above, the overall benefits to 

these species of a critical habitat 

designation for these properties are 

relatively small. In contrast, we believe 

that this exclusion will enhance our 

existing partnership with these 

landowners, and it will set a positive 

example and provide positive incentives 

to other non-Federal landowners who 

may be considering implementing 

voluntary conservation activities on 

their lands. We conclude there is a 

higher likelihood of beneficial 

conservation activities occurring in 

these and other areas of northern Santa 

Barbara County without designated 

critical habitat than there would be with 

designated critical habitat on these 

properties. 

(4) Exclusion of This Unit Will Not 

Cause Extinction of the Species 

In considering whether or not 

exclusion of these properties might 

result in the extinction of this species, 

the Service considered the impacts to 

the California tiger salamander. For the 

California tiger salamander populations 

located within the Western Los Alamos 

Unit, East Los Alamos Unit, and 

Purisima Hills Unit, it is the Service’s 

conclusion that the conservation 

strategies agreed to by the landowners 

and, where applicable, lessees will 

provide as much or more net 

conservation benefits as would be 

provided if these preserves were 

designated as critical habitat. These 

conservation strategies, which are 

described above, will provide tangible 

proactive conservation benefits that will 

reduce the likelihood of extinction for 

the California tiger salamander in Santa 

Barbara County and increase its 

likelihood of recovery. Extinction for 

this species as a consequence of this 

exclusion is unlikely because there are 

no known threats on these properties 

due to any current or reasonably 

anticipated Federal actions that might 

be regulated under section 7 of the Act. 

Further, these areas are already 

occupied and thereby benefit from the 

section 7 protections of the Act, should 

such an unlikely Federal threat actually 

materialize. The exclusion of these 

preserves will not increase the risk of 

extinction to this species, and it may 

increase the likelihood this species will 

recover by encouraging other 

landowners to implement voluntary 

conservation activities as Mr. Scheller, 

the Sainz Family, and Kendall-Jackson 

and its affiliate have done. In sum, the 

above analysis concludes that an 

exclusion of these properties from final 

critical habitat for the California tiger 

salamander in northern Santa Barbara 

County will have a net beneficial impact 

with little risk of negative impacts. 

Therefore, the exclusion of these lands 

will not cause extinction and should in 

fact improve the chances of recovery for 

California tiger salamander. 

Economic Analysis 

Section 4(b)(2) of the Act requires us 

to designate critical habitat on the basis 

of the best scientific and commercial 

information available and to consider 

the economic and other relevant 

impacts of designating a particular area 

as critical habitat. We may exclude areas 

from critical habitat upon a 

determination that the benefits of such 

exclusions outweigh the benefits of 

specifying such areas as part of critical 

habitat. We cannot exclude such areas 

from critical habitat if such exclusion 

would result in the extinction of the 

species.

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

October 7, 2004. We accepted comments 

on the draft analysis until November 8, 

2004. 

Our proposed critical habitat rule 

pertained to the Santa Barbara County 

population of California tiger 

salamander. Therefore, our economic 

analysis evaluated the potential future 

effects associated with the listing of this 

species as endangered under the Act, as 

well as any potential effect of the 

critical habitat designation above and 

beyond those regulatory and economic 

impacts associated with listing. 

We received 18 comments on the draft 

economic analysis of the proposed 

designation. Following the close of the 

comment period, we considered 

comments, prepared responses to 

comments, and prepared a summary of 

revisions to economic issues based on 

final critical habitat designation. See 

Responses to Comments section above. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We 

prepared a draft economic analysis of 

this proposed action to determine the 

economic consequences of designating 

the specific area as critical habitat. The 

draft economic analysis was made 

available for public comment, and we 

considered those comments during the 

preparation of this rule. The economic 

analysis indicates that this rule will not 

have an annual economic effect of $100 

million or more. The economic employs 

a lower and upper scenario approach to 

the economic costs associated with each 

unit. The lower scenario is based on the 

development of all land that is currently 

zoned for residential, commercial, or 

industrial development by 2030. The 

upper scenario, which applies to only 

units 1, 2, and 4, is based on the 

possibility that, in addition to the land 

already zoned for development (lower 

scenario), large amounts of additional 

agricultural lands within these units 

will also be developed. Based on the 

more certain lower scenario, the 

annualized economic effects of this 

designation are estimated to be 

$8,962,250; the estimate for the upper 

scenario is $35,369,906. We have 

excluded 2,740 ac (1,109 ha) of privately 

owned lands analyzed in the draft 

economic analysis based on noneconomic considerations so the direct 

economic impacts of the final 

designation is likely to be lower than 

this estimate. This is based on 26-year 

estimates. 

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 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68595

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. 

The Small Business Regulatory 

Enforcement Fairness Act amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a statement 

of the factual basis for certifying that the 

rule will not have a significant 

economic effect on a substantial number 

of small entities. The Small Business 

Regulatory Enforcement Fairness Act 

also amended the Regulatory Flexibility 

Act to require a certification statement. 

We are hereby certifying that this rule 

will not have a significant effect on a 

substantial number of small entities. 

The Small Business Regulatory 

Enforcement Fairness Act does not 

explicitly define either ‘‘substantial 

number’’ or ‘‘significant economic 

impact.’’ Consequently, to assess 

whether a ‘‘substantial number’’ of 

small entities is affected by this 

designation, this analysis considers the 

relative number of small entities likely 

to sustain impacts in the area. Similarly, 

this analysis considers the relative cost 

of compliance on the revenues/profit 

margins of small entities in determining 

whether or not entities incur a 

‘‘significant economic impact.’’ Only 

small entities that are expected to be 

directly affected by the designation are 

considered in this portion of the 

analysis. This approach is consistent 

with several judicial opinions related to 

the scope of the Regulatory Flexibility 

Act (Mid-Tex Electric Co-Op, Inc. v. 

FERC and American Trucking 

Associations, Inc. v. EPA). 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations.

To determine if the rule would affect 

a substantial number of small entities, 

we consider the number of small 

entities affected within particular types 

of economic activities (e.g., housing 

development, grazing, oil and gas 

production, timber harvesting, etc.). In 

estimating the numbers of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and so will not be 

affected by critical habitat designation. 

Designation of critical habitat only 

affects activities carried out, authorized, 

or funded by Federal agencies; nonFederal activities are not affected by the 

designation. In areas where the species 

are present, Federal agencies are already 

required to consult with us under 

section 7 of the Act on activities that 

they carry out, authorize, or fund that 

may affect the Santa Barbara population 

of the California tiger salamander. When 

these critical habitat designations are 

finalized, Federal agencies must also 

consult with us if their activities may 

affect designated critical habitat. 

However, in areas where the species are 

present, we do not believe this will 

result in appreciable additional 

regulatory burdens on Federal agencies 

or their applicants because consultation 

would already be required because of 

the presence of the listed species. 

Based on the economic analysis, the 

land development industry and the 

viticulture industry may contain small 

entities potentially affected by 

California tiger salamander conservation 

activities. We address the potential 

impacts to small businesses in each of 

these industries below. 

Land Development Small Business 

Impacts 

The SBA’s size standards for private 

sector firms are based on the North 

American Industry Classification 

System (NAICS). The economic analysis 

identified NAICS Code number 237210 

as most appropriate for analysis of land 

development impacts. According to the 

SBA size criterion, firms in this industry 

must have less than $6 million per year 

in gross revenues to be considered a 

small business. Although, under the 

RFA, individual landowners are not 

considered businesses, the economic 

analysis assumes that all landowners 

affected by California tiger salamander 

conservation in Santa Barbara County 

are businesses, which is likely to 

overstate the actual impacts to small 

land development firms. Based on this 

assumption, 97 percent of the land 

development firms in Santa Barbara 

County are small businesses. However, 

the share of total sales in the land 

development industry attributable to 

small businesses is approximately 54 

percent. Thus, although the small 

businesses constitute a relatively large 

share of the total businesses, their share 

of total sales is significantly lower. For 

the land development industry, the total 

small business impact of California tiger 

salamander conservation is estimated to 

be about $4.5 million for the lower 

scenario in Santa Barbara County. The 

number of small land developers 

affected by California tiger salamander 

conservation annually is 3 percent of 

the total for the county for the lower 

scenario. If the upper scenario were to 

occur, the impacts to small land 

development firms would be 

considerably higher. 

Viticulture Small Business Impacts 

According to the SBA size criterion, 

firms in the viticulture industry are 

considered small when fewer than 500 

individuals are employed by the firm. 

Based on this size classification, all of 

the viticulture firms in Santa Barbara 

County are small businesses. For the 

viticulture industry, the total small 

business impact of California tiger 

salamander conservation is estimated to 

be about $467,000 in Santa Barbara 

County. The number of small viticulture 

firms affected by salamander 

conservation annually is about 1 percent 

of the typical annual sales for a small 

business in this industry. 

In summary, we have considered 

whether this rule would result in a 

significant economic effect on a 

substantial number of small entities. We 

have concluded that this final 

designation of critical habitat for the 

California tiger salamander would not 

affect a substantial number of small 

entities. Therefore, we are certifying that 

the designation of critical habitat for the 

salamander will not have a significant 

economic impact on a substantial 

number of small entities, and a final 

68596 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

regulatory flexibility analysis is not 

required. 

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 final 

rule to designate critical habitat for the 

California tiger salamander 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 does not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

condition of Federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

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) Due to current public knowledge 

of the species’ protection, and the 

prohibition against take of the species 

both within and outside of the 

designated areas, we do not anticipate 

that this rule will significantly or 

uniquely affect small governments. As 

such, a Small Government Agency Plan 

is not required.

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of designating critical 

habitat for the Santa Barbara population 

of the California tiger salamander in a 

takings implication assessment, which 

indicates that this rule would not pose 

significant takings implications. The 

takings implications assessment 

concludes that this final designation of 

critical habitat for the salamander does 

not pose significant takings 

implications. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with the Department of the Interior 

policies, we requested information from, 

and coordinated development of, this 

critical habitat designation with 

appropriate State resource agencies in 

California. The designation of critical 

habitat in areas currently occupied by 

the Santa Barbara County population of 

California tiger salamander 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 

the States and local resource agencies 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 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 Department of the Interior’s 

Office of the Solicitor has determined 

that this rule does not unduly burden 

the judicial system and meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Endangered Species 

Act. This 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 the 

Santa Barbara County population of 

California tiger salamander. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain new or 

revised information collection for which 

OMB approval is required 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. 

Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68597

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we have 

coordinated with federally recognized 

Tribes on a Government-to-Government 

basis. We have determined that there are 

no tribal lands essential for the 

conservation of the Santa Barbara 

County population of California tiger 

salamander. Therefore, we have not 

designated any critical habitat for the 

Santa Barbara County population of 

California tiger salamander on Tribal 

lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Ventura Fish and Wildlife Office (see

ADDRESSES section). 

Author(s) 

The primary author of this package is 

the U.S. Fish and Wildlife Service.

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation.

Regulation Promulgation

■ For the reasons outlined in the 

preamble, we amend part 17, subchapter 

B of chapter I, title 50 of the Code of 

Federal Regulations, as follows:

PART 17—[AMENDED]

■ 1. The authority citation for part 17 

continues to read as follows:

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted.

■ 2. In § 17.11(h), revise the entry for 

‘‘Salamander, California tiger’’ under 

‘‘AMPHIBIANS’’ to read as follows:

§ 17.11 Endangered and threatened 

wildlife.

* * * * *

(h) * * *

Species 

Historic range 

Vertebrate population where endangered or threatened 

Status When listed Critical

habitat 

Special 

rules Common name Scientific name 

* * * * * * * 

AMPHIBIANS

* * * * * * * 

Salamander, California tiger, Santa 

Barbara County 

Population.

Ambystoma 

californiense.

U.S.A. (CA) ............. U.S.A. (CA—California).T 667E, 702, 

744

17.95(d) 17.43(c) 

* * * * * * * 

* * * * *

■ 3. Amend § 17.95(d) by adding critical 

habitat for the California tiger 

salamander (Ambystoma californiense) 

under ‘‘AMPHIBIANS’’ in the same 

alphabetical order as the species occurs 

in § 17.11(h) to read as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(d) Amphibians.

* * * * *

California tiger salamander 

(Ambystoma californiense) in Santa 

Barbara County 

(1) Critical habitat units are depicted 

for Santa Barbara County, California, on 

the maps below. 

(2) The primary constituent elements 

(PCEs) of critical habitat for the 

California tiger salamander in Santa 

Barbara County are the habitat 

components that provide: 

(i) Standing bodies of fresh water, 

including natural and man-made (e.g., 

stock) ponds, vernal pools, and dune 

ponds, and other ephemeral or 

permanent water bodies that typically 

become inundated during winter rains 

and hold water for a sufficient length of 

time (i.e., 12 weeks) necessary for the 

species to complete the aquatic portion 

of its life cycle (PCE 1). 

(ii) Barrier-free uplands adjacent to 

breeding ponds that contain small 

mammal burrows, including but not 

limited to burrows created by the 

California ground squirrel 

(Spermophilus beecheyi) and Botta’s 

pocket gopher (Thommomys bottae). 

Small mammals are essential in creating 

the underground habitat that adult 

California tiger salamanders depend 

upon for food, shelter, and protection 

from the elements and predation (PCE 

2). 

(iii) Upland areas between breeding 

locations (PCE 1) and areas with small 

mammal burrows (PCE 2) that allow for 

dispersal among such sites (PCE 3).

(3) Critical habitat does not include 

existing features and structures, such as 

buildings, aqueducts, airports, roads 

and their rights of way, and other 

developed areas not containing one or 

more of the primary constituent 

elements. 

(4) Final critical habitat units are 

described below. Coordinate in UTM 

Zone 10 with units in meters using 

North American Datum of 1927 

(NAD27). 

(5) Note: Map 1 (Index map) follows: 

BILLING CODE 4310–55–P

68598 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

(6) Unit 1: Western Santa Maria/

Orcutt Unit, Santa Barbara County, 

California. 

(i) From USGS 1:24, 000 scale 

quadrangle maps Guadalupe, Santa 

Maria, Orcutt and Casmalia. Lands 

bounded by UTM Zone 10, NAD 1927 

coordinates (E, N): 727389, 3864869; 

727442, 3864843; 727875, 3864859; 


ER24NO04.001</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68599

729380, 3864569; 729392, 3864085; 

729538, 3864085; 729549, 3863963; 

729918, 3863978; 729917, 3864206; 

729992, 3864189; 729994, 3864102; 

730189, 3864034; 730274, 3864033; 

730349, 3864133; 730426, 3864139; 

730428, 3864131; 730875, 3864121; 

730995, 3863984; 731124, 3863944; 

731211, 3863935; 731326, 3864047; 

731326, 3864050; 731327, 3864050; 

731552, 3863889; 731688, 3863776; 

731694, 3863667; 732718, 3863684; 

733501, 3863695; 733710, 3864115; 

734321, 3864137; 734356, 3862460; 

734012, 3862472; 733226, 3862481; 

733120, 3862472; 732971, 3862446; 

732961, 3862352; 732793, 3862347; 

732789, 3862453; 732392, 3862448; 

731780, 3862433; 731777, 3862409; 

731782, 3862099; 731782, 3862030; 

731972, 3862034; 731974, 3861846; 

731788, 3861839; 731793, 3861647; 

731514, 3861520; 731262, 3861619; 

731322, 3861818; 730590, 3862072; 

730517, 3861874; 730107, 3862013; 

729738, 3862138; 729602, 3862197; 

729340, 3862322; 729093, 3862435; 

728920, 3862517; 728803, 3862577; 

728697, 3862427; 728611, 3862313; 

728499, 3862215; 728390, 3862156; 

728264, 3862119; 728151, 3862116; 

728010, 3862126; 727823, 3862142; 

727665, 3862155; 727578, 3862147; 

727520, 3862128; 727450, 3862077; 

727373, 3861996; 727263, 3861874; 

726913, 3861473; 726869, 3861542; 

726733, 3861881; 726625, 3862026; 

726543, 3862111; 726454, 3862257; 

726385, 3862323; 726312, 3862358; 

726267, 3862377; 726195, 3862392; 

726144, 3862402; 726090, 3862433; 

726030, 3862494; 725866, 3862781; 

725844, 3862860; 725847, 3862927; 

725875, 3862987; 725916, 3863037; 

726214, 3863309; 726378, 3863531; 

726419, 3863641; 726444, 3864049; 

726467, 3864173; 726511, 3864261; 

726568, 3864745; 726596, 3864786; 

726638, 3864810; 726727, 3864827; 

726866, 3864836; 727389, 3864850; 

returning to coordinates 727389, 

3864869. 

(ii) Note: Unit 1 (Map 2) follows:

68600 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

(7) Unit 2: Eastern Santa Maria Unit, 

Santa Barbara County, California. 

(i) From USGS 1:24,000 scale 

quadrangle maps Guadalupe, Santa 

Maria, Twitchell Dam, Orcutt and 

Sisquoc. Lands bounded by UTM Zone 


ER24NO04.002</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68601

10, NAD 1927 coordinates (E, N): 

737445, 3864756; 737472, 3864777; 

737515, 3864783; 737548, 3864786; 

737572, 3864801; 737600, 3864838; 

737615, 3864865; 737648, 3864905; 

737679, 3864932; 737706, 3864950; 

737727, 3864968; 737755, 3864987; 

737776, 3865011; 737779, 3865041; 

738854, 3865078; 738849, 3865074; 

739192, 3865081; 739600, 3865100; 

739600, 3864300; 742500, 3864300; 

742836, 3864048; 742825, 3863984; 

742805, 3863899; 742825, 3863808; 

742798, 3863736; 742798, 3863677; 

742838, 3863599; 742851, 3863501; 

742890, 3863429; 742942, 3863357; 

742955, 3863266; 743020, 3863122; 

743086, 3863004; 743164, 3862913; 

743256, 3862841; 743308, 3862763; 

743308, 3862717; 743399, 3862573; 

743497, 3862417; 743536, 3862345; 

743608, 3862286; 743608, 3862201; 

743703, 3861803; 743680, 3861801; 

743607, 3861773; 743552, 3861732; 

743460, 3861709; 743363, 3861672; 

743299, 3861589; 743194, 3861498; 

743115, 3861392; 743083, 3861277; 

743028, 3861194; 742955, 3861153; 

742844, 3861112; 742794, 3861075; 

742546, 3861098; 741338, 3861104; 

741329, 3861505; 740918, 3861507; 

740918, 3861880; 740700, 3862100; 

740400, 3862500; 740300, 3862700; 

740300, 3863100; 738600, 3863500; 

738531, 3863657; 738371, 3863925; 

738322, 3863957; 738273, 3863974; 

738219, 3863986; 738136, 3864066; 

738036, 3864163; 737987, 3864215; 

737938, 3864226; 737890, 3864212; 

737838, 3864206; 737795, 3864232; 

737749, 3864266; 737718, 3864321; 

737672, 3864378; 737595, 3864409; 

737512, 3864441; 737493, 3864445; 

737485, 3864446; 737478, 3864479; 

737466, 3864522; 737472, 3864543; 

737500, 3864555; 737536, 3864561; 

737576, 3864571; 737600, 3864589; 

737594, 3864625; 737563, 3864640; 

737530, 3864668; 737487, 3864689; 

737460, 3864701; 737448, 3864728; 

returning to coordinates 737445, 

3864756 

(i) Note: Unit 2 (Map 3) follows:

68602 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 


ER24NO04.003</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68603

(8) Unit 3: Western Los Alamos/

Careaga Unit, Santa Barbara County, 

California. 

(i) From USGS 1:24,000 scale 

quadrangle maps Orcutt and Sisquoc. 

Lands bounded by UTM Zone 10, NAD 

1927 coordinates (E, N): 739930, 

3852832; 739932, 3852861; 739942, 

3852885; 739950, 3852898; 739953, 

3852908; 739948, 3852930; 739938, 

3852953; 739930, 3852980; 739930, 

3853010; 739934, 3853028; 739949, 

3853035; 740004, 3853033; 740031, 

3853036; 740050, 3853048; 740057, 

3853058; 740069, 3853085; 740079, 

3853108; 740089, 3853128; 740102, 

3853145; 740129, 3853157; 740152, 

3853178; 740159, 3853196; 740161, 

3853220; 740164, 3853243; 740194, 

3853293; 740204, 3853313; 740211, 

3853337; 740215, 3853373; 740224, 

3853418; 740236, 3853465; 740233, 

3853508; 740236, 3853551; 740232, 

3853598; 740212, 3853658; 740197, 

3853710; 740189, 3853748; 740175, 

3853778; 740179, 3853818; 740189, 

3853838; 740207, 3853850; 740227, 

3853847; 740249, 3853838; 740273, 

3853833; 740288, 3853838; 740309, 

3853865; 740314, 3853898; 740309, 

3853934; 740295, 3853970; 740295, 

3854004; 740301, 3854056; 740297, 

3854108; 740284, 3854159; 740273, 

3854198; 740261, 3854241; 740233, 

3854288; 740219, 3854318; 740219, 

3854348; 740201, 3854378; 740179, 

3854408; 740175, 3854438; 740185, 

3854482; 740205, 3854528; 740210, 

3854580; 740189, 3854598; 740138, 

3854609; 740067, 3854618; 740058, 

3854630; 740057, 3854650; 740068, 

3854705; 740086, 3854764; 740122, 

3854832; 740145, 3854873; 740171, 

3854916; 740200, 3854958; 740227, 

3854990; 740246, 3855003; 740268, 

3855011; 740299, 3855016; 740327, 

3855016; 740394, 3855002; 740463, 

3854982; 740529, 3854949; 740587, 

3854907; 740667, 3854871; 740749, 

3854847; 740853, 3854820; 741014, 

3854780; 741358, 3854674; 741546, 

3854627; 741695, 3854596; 741696, 

3854596; 741734, 3854379; 741759, 

3854299; 741781, 3854220; 741811, 

3854104; 741858, 3853961; 741870, 

3853929; 741886, 3853898; 741906, 

3853865; 741932, 3853833; 741976, 

3853784; 742010, 3853736; 742033, 

3853682; 742054, 3853628; 742075, 

3853579; 742092, 3853547; 742113, 

3853517; 742142, 3853481; 742183, 

3853444; 742227, 3853411; 742263, 

3853385; 742305, 3853361; 742316, 

3853357; 742332, 3853353; 742346, 

3853356; 742362, 3853362; 742371, 

3853371; 742375, 3853385; 742374, 

3853410; 742374, 3853450; 742374, 

3853462; 742379, 3853481; 742385, 

3853496; 742392, 3853507; 742401, 

3853515; 742411, 3853518; 742433, 

3853515; 742447, 3853508; 742463, 

3853498; 742486, 3853490; 742511, 

3853490; 742525, 3853492; 742539, 

3853496; 742565, 3853509; 742580, 

3853517; 742594, 3853520; 742605, 

3853519; 742616, 3853515; 742626, 

3853502; 742634, 3853485; 742643, 

3853466; 742653, 3853451; 742664, 

3853433; 742687, 3853414; 742700, 

3853411; 742712, 3853411; 742723, 

3853417; 742734, 3853429; 742742, 

3853451; 742741, 3853472; 742735, 

3853490; 742727, 3853511; 742719, 

3853537; 742718, 3853556; 742720, 

3853577; 742741, 3853616; 742753, 

3853632; 742766, 3853645; 742786, 

3853648; 742809, 3853648; 742820, 

3853648; 742834, 3853645; 742856, 

3853634; 742980, 3853487; 742994, 

3853477; 743010, 3853470; 743024, 

3853466; 743040, 3853463; 743058, 

3853467; 743068, 3853470; 743074, 

3853474; 743082, 3853492; 743087, 

3853504; 743090, 3853519; 743092, 

3853546; 743094, 3853569; 743097, 

3853585; 743100, 3853593; 743100, 

3853606; 743090, 3853656; 743091, 

3853667; 743104, 3853684; 743125, 

3853694; 743146, 3853691; 743171, 

3853681; 743201, 3853671; 743217, 

3853677; 743229, 3853688; 743247, 

3853721; 743259, 3853762; 743269, 

3853790; 743277, 3853849; 743300, 

3853819; 743300, 3853818; 743323, 

3853777; 743397, 3853668; 743403, 

3852407; 743404, 3851838; 743379, 

3851848; 743310, 3851856; 743246, 

3851854; 743210, 3851862; 743160, 

3851881; 743107, 3851862; 743071, 

3851848; 743035, 3851839; 743001, 

3851841; 742976, 3851860; 742953, 

3851890; 742771, 3852099; 742735, 

3852126; 742695, 3852156; 742663, 

3852192; 742649, 3852236; 742651, 

3852268; 742642, 3852300; 742625, 

3852327; 742598, 3852357; 742575, 

3852378; 742539, 3852388; 742505, 

3852386; 742458, 3852350; 742323, 

3852141; 742287, 3852122; 742251, 

3852112; 742211, 3852124; 742169, 

3852135; 742123, 3852135; 742080, 

3852131; 742051, 3852137; 742006, 

3852145; 741962, 3852148; 741932, 

3852156; 741901, 3852177; 741880, 

3852198; 741859, 3852205; 741829, 

3852198; 741806, 3852207; 741774, 

3852219; 741753, 3852232; 741730, 

3852234; 741709, 3852230; 741694, 

3852238; 741683, 3852257; 741666, 

3852279; 741645, 3852298; 741540, 

3852314; 741527, 3852333; 741521, 

3852365; 741485, 3852388; 741464, 

3852395; 741430, 3852405; 741413, 

3852426; 741362, 3852448; 741324, 

3852462; 741273, 3852494; 741240, 

3852526; 741056, 3852733; 740995, 

3852819; 740969, 3852874; 740948, 

3852919; 740914, 3852929; 740739, 

3852925; 740638, 3852914; 740536, 

3852895; 740395, 3852862; 740249, 

3852823; 740205, 3852807; 740165, 

3852787; 740120, 3852761; 740076, 

3852741; 740029, 3852725; 739996, 

3852721; 739966, 3852736; 739949, 

3852758; 739935, 3852794; returning to 

coordinates 739930, 3852832. 

(ii) Note: Unit 3 (Map 4) follows:

68604 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 

(9) Unit 4: Eastern Los Alamos Unit, 

Santa Barbara County, California. 

(i) From USGS 1:24,000 scale 

quadrangle maps Los Alamos and Zaca 

Creek. Lands bounded by UTM Zone 10, 

NAD 1927 coordinates (E, N): 751549, 


ER24NO04.004</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68605

3847022; 751555, 3846792; 751152, 

3846766; 751147, 3847077; 751215, 

3847070; return to coordinates 751549, 

3847022; 752562, 3846818; 752566, 

3846816; 752568, 3846815; 753162, 

3846522; 753190, 3846371; 753198, 

3846259; 752581, 3846225; 752562, 

3846811; returning to coordinates 

752562, 3846818. 

(ii) Note: Unit 4 (Map 5) follows:

68606 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 


ER24NO04.005</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68607

(10) Unit 5 (Purisima Hills) and Unit 

6 (Santa Rita Valley), Santa Barbara 

County, California. 

(i) From USGS 1:24,000 scale 

quadrangle maps Lompoc and Los 

Alamos. Lands bounded by UTM Zone 

10, NAD 1927 coordinates (E, N): 

740315, 3843441; 740315, 3843571; 

740333, 3843694; 740344, 3843851; 

740379, 3844016; 740440, 3844211; 

740465, 3844252; 740500, 3844403; 

740514, 3844454; 740523, 3844541; 

740545, 3844615; 740543, 3844650; 

740562, 3844732; 740560, 3844813; 

740574, 3844876; 740605, 3844928; 

740632, 3844951; 740687, 3844979; 

740760, 3844996; 740805, 3845008; 

740854, 3845018; 740926, 3845027; 

740998, 3845045; 741062, 3845070; 

741215, 3845097; 741303, 3845088; 

741330, 3845084; 741406, 3845068; 

741449, 3845049; 741505, 3845008; 

741534, 3844944; 741565, 3844878; 

741622, 3844831; 741696, 3844819; 

741830, 3844848; 741927, 3844856; 

742032, 3844878; 742137, 3844897; 

742187, 3844900; 743020, 3844746; 

743600, 3844639; 743544, 3845422; 

743666, 3845536; 743782, 3845507; 

743804, 3845490; 743820, 3845487; 

743817, 3845472; 743789, 3845364; 

743754, 3845216; 743731, 3845103; 

743737, 3845037; 743766, 3844881; 

743795, 3844800; 743801, 3844755; 

743885, 3844535; 743914, 3844487; 

743935, 3844452; 743955, 3844439; 

743980, 3844433; 744015, 3844435; 

744049, 3844447; 744076, 3844462; 

744101, 3844484; 744191, 3844607; 

744256, 3844716; 744267, 3844736; 

744287, 3844751; 744316, 3844765; 

744347, 3844771; 744379, 3844771; 

744398, 3844763; 744416, 3844745; 

744431, 3844716; 744453, 3844650; 

744443, 3844611; 744459, 3844574; 

744482, 3844523; 744488, 3844488; 

744482, 3844462; 744449, 3844433; 

744425, 3844386; 744406, 3844347; 

744392, 3844304; 744379, 3844255; 

744375, 3844189; 744361, 3844156; 

744334, 3844132; 744306, 3844106; 

744283, 3844062; 744275, 3844028; 

744279, 3843987; 744291, 3843933; 

744308, 3843884; 744316, 3843839; 

744320, 3843801; 744303, 3843764; 

744258, 3843733; 744257, 3843733; 

744209, 3843711; 744131, 3843692; 

744083, 3843690; 744032, 3843674; 

743962, 3843661; 743896, 3843643; 

743768, 3843616; 743739, 3843608; 

743690, 3843610; 743673, 3843616; 

743651, 3843624; 743587, 3843624; 

743548, 3843624; 743519, 3843624; 

743488, 3843616; 743467, 3843585; 

743439, 3843558; 743414, 3843550; 

743391, 3843543; 743373, 3843538; 

743327, 3843503; 743319, 3843489; 

743303, 3843462; 743280, 3843443; 

743228, 3843421; 743222, 3843416; 

743194, 3843404; 743150, 3843392; 

743095, 3843367; 743037, 3843328; 

742969, 3843276; 742924, 3843237; 

742891, 3843194; 742856, 3843132; 

742817, 3843073; 742790, 3842998; 

742767, 3842937; 742745, 3842914; 

742741, 3842893; 742755, 3842875; 

742776, 3842844; 742796, 3842819; 

742811, 3842782; 742808, 3842754; 

742808, 3842756; 742806, 3842745; 

742724, 3842689; 742714, 3842673; 

742714, 3842654; 742699, 3842642; 

742691, 3842619; 742679, 3842599; 

742658, 3842574; 742619, 3842523; 

742600, 3842496; 742580, 3842488; 

742559, 3842481; 742528, 3842473; 

742512, 3842467; 742491, 3842453; 

742469, 3842436; 742460, 3842407; 

742452, 3842376; 742446, 3842358; 

742432, 3842352; 742423, 3842346; 

742423, 3842331; 742423, 3842321; 

742415, 3842300; 742401, 3842292; 

742382, 3842284; 742366, 3842278; 

742360, 3842263; 742347, 3842255; 

742337, 3842238; 742331, 3842214; 

742325, 3842195; 742322, 3842177; 

742333, 3842156; 742333, 3842133; 

742325, 3842113; 742308, 3842100; 

742283, 3842082; 742263, 3842053; 

742215, 3842063; 742205, 3842084; 

742199, 3842144; 742189, 3842214; 

742182, 3842267; 742162, 3842317; 

742131, 3842362; 742065, 3842407; 

742020, 3842428; 741952, 3842434; 

741925, 3842430; 741907, 3842411; 

741884, 3842343; 741859, 3842259; 

741834, 3842222; 741785, 3842199; 

741678, 3842164; 741618, 3842152; 

741524, 3842191; 741449, 3842218; 

741383, 3842245; 741322, 3842265; 

741194, 3842306; 741101, 3842329; 

741029, 3842343; 740984, 3842374; 

740953, 3842407; 740908, 3842494; 

740846, 3842572; 740805, 3842632; 

740760, 3842702; 740681, 3842796; 

740578, 3842885; 740374, 3843079; 

740346, 3843118; 740329, 3843163; 

740321, 3843192; 740323, 3843280; 

740319, 3843359; returning to 

coordinates 740315, 3843441. 

(ii) From USGS 1:24,000 scale 

quadrangle map Los Alamos. Lands 

bounded by UTM Zone 10, NAD 1927 

coordinates (E, N): 745831, 3837355; 

745836, 3837400; 745868, 3837517; 

745882, 3837595; 745885, 3837796; 

745931, 3837850; 745943, 3837841; 

746054, 3837754; 746086, 3837749; 

746174, 3837796; 746193, 3837805; 

746210, 3837817; 746240, 3837814; 

746238, 3837834; 746237, 3837848; 

746238, 3837859; 746246, 3837885; 

746252, 3837904; 746264, 3837925; 

746270, 3837939; 746273, 3837961; 

746333, 3837969; 746362, 3837961; 

746389, 3837952; 746410, 3837932; 

746447, 3837910; 746481, 3837886; 

746510, 3837871; 746524, 3837871; 

746574, 3837901; 746641, 3837941; 

746671, 3837958; 746698, 3837971; 

746711, 3837990; 746719, 3838016; 

746722, 3838057; 746732, 3838099; 

746754, 3838127; 746774, 3838153; 

746800, 3838178; 746812, 3838172; 

746830, 3838154; 746849, 3838139; 

746872, 3838143; 746890, 3838153; 

746910, 3838175; 746936, 3838195; 

746973, 3838226; 747007, 3838275; 

747028, 3838292; 747042, 3838295; 

747065, 3838297; 747100, 3838307; 

747126, 3838325; 747165, 3838333; 

747192, 3838314; 747175, 3838300; 

747164, 3838280; 747130, 3838159; 

747094, 3838014; 746951, 3837865; 

746923, 3837601; 746880, 3837223; 

746875, 3837182; 746875, 3837180; 

746819, 3837113; 747089, 3836795; 

747166, 3836717; 747266, 3836621; 

747421, 3836483; 747555, 3836383; 

747819, 3836198; 747789, 3836153; 

747755, 3836094; 747708, 3836034; 

747619, 3836017; 747525, 3836009; 

747485, 3835980; 747470, 3835953; 

747470, 3835945; 747428, 3835918; 

747391, 3835882; 747345, 3835822; 

747298, 3835796; 747255, 3835776; 

747202, 3835757; 747159, 3835786; 

747080, 3835838; 747045, 3835853; 

747015, 3835866; 746987, 3835870; 

746960, 3835858; 746907, 3835796; 

746883, 3835755; 746875, 3835741; 

746860, 3835729; 746841, 3835737; 

746825, 3835750; 746722, 3835836; 

746666, 3835870; 746586, 3835909; 

746526, 3835966; 746474, 3836020; 

746369, 3836096; 746284, 3836134; 

746251, 3836133; 746219, 3836119; 

746195, 3836119; 746169, 3836122; 

746153, 3836147; 746086, 3836247; 

746015, 3836335; 745961, 3836422; 

745892, 3836592; 745874, 3836696; 

745868, 3836781; 745884, 3836906; 

745884, 3836988; 745866, 3837121; 

745866, 3837174; 745855, 3837241; 

745837, 3837310; returning to 

coordinates 745831, 3837355. 

(iii) Note: Units 5 and 6 (Map 6) 

follow:

68608 Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 


ER24NO04.006</GPH>
Federal Register / Vol. 69, No. 226 / Wednesday, November 24, 2004 / Rules and Regulations 68609

* * * * *

Dated: November 15, 2004. 

Paul Hoffman, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks.

[FR Doc. 04–25775 Filed 11–18–04; 1:00 pm] 

BILLING CODE 4310–55–C