33808 Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AV07 

Endangered and Threatened Wildlife 

and Plants; Revised Critical Habitat for 

the San Bernardino Kangaroo Rat 

(Dipodomys merriami parvus) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Proposed rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), propose to 

revise currently designated critical 

habitat for the San Bernardino kangaroo 

rat (Dipodomys merriami parvus) under 

the Endangered Species Act of 1973, as 

amended (Act). Currently, 

approximately 33,295 acres (ac) (13,485 

hectares (ha)) are designated as critical 

habitat for the San Bernardino kangaroo 

rat in San Bernardino and Riverside 

counties, California. Under this 

proposal, approximately 9,079 ac (3,674 

ha) of land located in San Bernardino 

and Riverside counties, California 

would fall within the boundaries of the 

revised critical habitat designation. 

Further, of the 9,079 ac of revised 

critical habitat, we are proposing to 

exclude 2,544 ac (1,029 ha) of land 

covered by the Woolly-Star Preserve 

Area Management Plans, the Former 

Norton Air Force Base Conservation 

Management Plan, the Cajon Creek 

Habitat Conservation Management Area 

Habitat Enhancement and Management 

Plan, and the Western Riverside County 

Multiple Species Habitat Conservation 

Plan from the final designation under 

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

DATES: We will accept comments from 

all interested parties until August 20, 

2007. We must receive requests for 

public hearings, in writing, at the 

address shown in the ADDRESSES section 

by August 3, 2007. 

ADDRESSES: If you wish to comment, 

you may submit your comments and 

materials concerning this proposal by 

any one of several methods: 

1. You may mail or hand-deliver your 

written comments and information to 

Jim Bartel, Field Supervisor, U.S. Fish 

and Wildlife Service, Carlsbad Fish and 

Wildlife Office, 6010 Hidden Valley 

Road, Carlsbad, CA 92011. 

2. You may send comments by 

electronic mail (e-mail) to 

fw8cfwocomments@fws.gov. Please 

include ‘‘Attn: San Bernardino kangaroo 

rat’’ in your e-mail subject header. If you 

do not receive a confirmation from the 

system that we have received your 

message, contact us directly by calling 

our Carlsbad Fish and Wildlife Office at 

760–431–9440. 

3. You may fax your comments to Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office at 760–431–5901. 

4. You may go to the Federal 

eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

Comments and materials received, as 

well as supporting documentation used 

in the preparation of this proposed rule, 

will be available for public inspection, 

by appointment, during normal business 

hours at the Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011 (telephone 760– 

431–9440). 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office, 6010 Hidden Valley 

Road, Carlsbad, CA 92011; telephone 

760–431–9440; facsimile 760–431–5901. 

Persons who use a telecommunications 

device for the deaf (TDD) may call the 

Federal Information Relay Service 

(FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Public Comments Solicited 

We intend that any final action 

resulting from this proposal to revise 

critical habitat for the San Bernardino 

kangaroo rat will be as accurate and as 

effective as possible. Therefore, 

comments or suggestions from the 

public, other concerned governmental 

agencies, the scientific community, 

industry, or any other interested party 

concerning this proposed rule are 

hereby solicited. Comments particularly 

are sought concerning: 

(1) The reasons why habitat should or 

should not be designated as critical 

habitat under section 4 of the Act (16 

U.S.C. 1531 et seq.), including whether 

there are areas we previously 

designated, but are not proposing for 

designation here, that should be 

designated as critical habitat; 

(2) Specific information on the 

amount and distribution of San 

Bernardino kangaroo rat habitat; what 

areas occupied at the time of listing and 

that contain features essential for the 

conservation of the subspecies should 

be included in the designation and why; 

and what areas that were not occupied 

at the time of listing are essential to the 

conservation of the subspecies and why; 

(3) Specific information on dispersal 

areas important for habitat connectivity, 

their role in the conservation and 

recovery of the subspecies, and reasons 

why such areas should or should not be 

included in the critical habitat 

designation; 

(4) Our proposed exclusions totaling 

2,544 ac (1,029 ha) of San Bernardino 

kangaroo rat habitat and whether the 

benefits of excluding these areas would 

outweigh the benefits of their inclusion 

under section 4(b)(2) of the Act (see 

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

Act section for a detailed discussion). If 

the Secretary determines that the 

benefits of including these lands would 

outweigh the benefits of excluding 

them, they will not be excluded from 

final critical habitat; 

(5) Any proposed critical habitat areas 

covered by existing or proposed 

conservation or management plans that 

we should consider for exclusion from 

the final designation under section 

4(b)(2) of the Act. We specifically 

request information on any operative or 

draft habitat conservation plans for the 

San Bernadino kangaroo rat that have 

been prepared under section 10(a)(1)(B) 

of the Act, as well as any other 

management or conservation plan or 

agreement that benefits the kangaroo rat 

or its primary constituent elements; 

(6) Specific information regarding the 

current status of plan implementation 

for the following management plans: the 

Woolly-Star Preserve Area Management 

Plans; the Former Norton Air Force Base 

CMP; the Cajon Creek Habitat 

Conservation Management Area HEMP; 

and Western Riverside MSHCP; 

(7) Land use designations and current 

or planned activities in the subject areas 

and their possible impacts on proposed 

revised critical habitat; 

(8) Any foreseeable economic, 

national security, or other potential 

impacts resulting from the proposed 

revised designation and, in particular, 

any impacts on small entities, and the 

benefits of including or excluding areas 

that exhibit these impacts; and 

(9) Whether our approach to 

designating critical habitat could be 

improved or modified in any way as to 

provide for greater public participation 

and understanding, or to assist us in 

accommodating public concerns and 

comments. 

You may submit your comments and 

materials concerning this proposal by 

any one of several methods (see 

ADDRESSES section). Please note that 

comments must be received by the date 

specified in the DATES section in order 

to be considered and that the e-mail 

address fw8cfwocomments@fws.gov will 

be closed out at the termination of the 

public comment period. 

Before including your address, phone 

number, e-mail address, or other 

personal identifying information in your 

comment, you should be aware that 

your entire comment—including your 

personal identifying information—may 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33809 

be made publicly available at any time. 

While you may ask us to withhold your 

personal identifying information from 

public review, we cannot guarantee that 

we will be able to do so. 

Background 

It is our intent to discuss only those 

topics directly relevant to the revision of 

designated critical habitat for the San 

Bernardino kangaroo rat in this 

proposed rule. For more information on 

the biology and ecology of the San 

Bernardino kangaroo rat, refer to the 

final listing rule published in the 

Federal Register on September 24, 1998 

(63 FR 51005), and the proposed and 

final critical habitat rules published in 

the Federal Register on December 8, 

2000, and April 23, 2002, respectively 

(65 FR 77178 and 67 FR 19812). 

Species Description 

The San Bernardino kangaroo rat is 

one of the most highly differentiated of 

19 recognized subspecies of Merriam’s 

kangaroo rat (Dipodomys merriami). 

The subspecies occurs primarily on 

alluvial fans with appropriate physical 

and vegetative characteristics in San 

Bernardino and Riverside counties, 

California (Hall 1981, p. 586; Lidicker 

1960, p. 190; Williams et al. 1993, p. 

62). 

Species Distribution 

The historical range of the San 

Bernardino kangaroo rat extends from 

the San Bernardino Valley in San 

Bernardino County to the Menifee 

Valley in Riverside County (Hall and 

Kelson 1959, p. 532; Lidicker 1960, p. 

190). From the early 1880s to the early 

1930s, the subspecies was a common 

resident of the San Bernardino and San 

Jacinto Valleys of southern California 

(Lidicker 1960, p. 190). Prior to 1960, 

the San Bernardino kangaroo rat was 

known from more than 25 localities 

within this range (McKernan 1997, p. 3; 

McKernan 1993, p. 36). Based on the 

distribution of apparent suitable soils 

and museum collections, the Service 

estimated at the time of emergency 

listing in 1998 that the historical range 

of the subspecies encompassed 

approximately 326,467 ac (130,587 ha) 

(63 FR 51005, September 24, 1998). 

Recent studies indicate that the San 

Bernardino kangaroo rat occupies a 

wider range of soil and vegetation types 

than was previously thought (Braden 

and McKernan 2000, p. 17), which 

suggests that the subspecies’ historical 

range may have been larger than 

previously estimated at the time of 

listing. However, only portions of the 

historical range would have been 

occupied at any given time due to the 

dynamic nature of alluvial habitat and 

resultant variation in habitat suitability. 

At the time of emergency listing in 

1998, the extant range of the San 

Bernardino kangaroo rat was thought to 

encompass approximately 3,247 ac 

(1,299 ha) of suitable habitat divided 

unequally among seven geographically 

distinct locations (63 FR 3835, January 

27, 1998; McKernan 1997, p. 11). The 

extent of occupied habitat within San 

Bernardino County included 1,725 ac 

(690 ha) within the Santa Ana River, 20 

ac (8 ha) in City Creek, 1,140 ac (456 ha) 

in Lytle and Cajon creeks, 5 ac (2 ha) 

within Etiwanda Creek, 5 ac (2 ha) in 

Reche Canyon, and 2 ac (0.8 ha) in 

South Bloomington. San Bernardino 

kangaroo rat distribution within 

Riverside County was limited to 350 

acres (140 ha) within the San Jacinto 

River (McKernan 1997 as cited in 63 FR 

3836). This determination was based 

upon the then-current understanding of 

what constituted suitable habitat for the 

subspecies and an evaluation of 

landscape-scale changes (e.g., dams, 

flood-control channels, water 

diversions, roadway construction) that 

had altered the fluvial processes and/or 

habitat for this subspecies. 

Subsequently, we evaluated new 

information and the results of livetrapping that documented the 

occurrence of the San Bernardino 

kangaroo rat within mature alluvial fan 

sage scrub habitat (sensu Smith 1980 

and Hanes et al. 1989). As a result, in 

the final rule to list the subspecies, we 

estimated the extant range of the San 

Bernardino kangaroo rat to encompass 

approximately 9,797 ac (3,919 ha) of 

suitable habitat within the Santa Ana 

River, Lytle and Cajon creeks, and the 

San Jacinto River (63 FR 51005, 

September 24, 1998). 

When the final rule designating 

critical habitat for the San Bernardino 

kangaroo rat was published in 2002 (67 

FR 19812, April 23, 2002), the rule 

reported that the designated critical 

habitat area is 33,295 ac (13,485 ha). 

However, the total area for each of the 

four critical habitat units given in that 

rule add up to 33,290 ac (13,480 ha) and 

we recognize this total as the existing 

critical habitat area in this revised rule. 

At the time of publication of the final 

critical habitat rule, research indicated 

that San Bernardino kangaroo rats can 

occupy mature alluvial sage scrub, 

coastal sage scrub, and even chaparral 

vegetation types (Braden and McKernan 

2000, p. 16). Thus, within the 33,290 ac 

(13,480 ha) designated as critical habitat 

in 2002, approximately 32,480 ac 

(13,155 ha) were believed to be 

occupied by the subspecies (67 FR 

19812). In the final designation, we 

stated that systematic and general 

biological surveys resulted in the 

documentation of additional 

occurrences within and outside of areas 

previously known to be occupied by the 

subspecies and that based on this 

information, the San Bernardino 

kangaroo rat occupied a larger area than 

was known at the time of listing. 

However, since these additional 

occurrences are within the general areas 

described as occupied in the listing rule 

(Santa Ana River wash, Lytle and Cajon 

washes, and the San Jacinto River wash 

and adjacent upland areas), we consider 

the areas supporting these occurrences 

to have been occupied at the time of 

listing. 

New occurrences of San Bernardino 

kangaroo rat have also been found since 

the final critical habitat designation in 

2002. These occurrences are also within 

the general areas of the Santa Ana River 

wash, Lytle and Cajon washes, and San 

Jacinto River wash that were known to 

be occupied at the time of listing and 

known to be occupied at the time of the 

final critical habitat rule. Therefore, we 

consider the areas supporting these new 

occurrences to have been occupied at 

the time of listing. 

Previous Federal Actions 

On March 30, 2005, the Pacific Legal 

Foundation filed suit against the Service 

challenging our failure to provide 

adequate delineation, justification, or 

sufficient analysis of economic and 

other impacts in the designation of 

critical habitat for the San Bernardino 

kangaroo rat and 26 other species. On 

March 23, 2006, a settlement agreement 

was reached requiring the Service to 

propose to revise critical habitat for the 

San Bernardino kangaroo rat as 

appropriate. The settlement stipulated 

that on or before June 1, 2007, the 

Service shall submit for publication in 

the Federal Register a proposed rule 

regarding any revisions to the 

designation of critical habitat, and that 

a final rule shall be submitted for 

publication in the Federal Register on 

or before June 1, 2008. For more 

information on previous Federal actions 

concerning the San Bernardino 

kangaroo rat, refer to the final listing 

rule published in the Federal Register 

on September 24, 1998 (63 FR 51005), 

and the final designation of critical 

habitat published in the Federal 

Register on April 23, 2002 (67 FR 

19812). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as (i) the specific areas within 

the geographical area occupied by a 

species, at the time it is listed in 


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33810 Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical 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 under 

section 3 of the Act, means to use and 

the use of all methods and procedures 

that are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided under the Act are no 

longer necessary. Such methods and 

procedures include, but are not limited 

to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7(a)(2) 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(a)(2) of the Act 

requires consultation on Federal actions 

that are likely to result in the 

destruction or adverse modification of 

critical habitat. The designation of 

critical habitat does not affect land 

ownership or establish a refuge, 

wilderness, reserve, preserve, or other 

conservation area. Such designation 

does not allow government or public 

access to private lands. Section 7(a)(2) 

of the Act is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species at the time of 

listing must first have features that are 

essential to the conservation of the 

species. Critical habitat designations 

identify, to the extent known using the 

best scientific data available, habitat 

areas that provide essential life cycle 

needs of the species (i.e., areas on which 

are found the primary constituent 

elements, as defined at 50 CFR 

424.12(b)). 

Habitat occupied by the species at the 

time of listing may be included in 

critical habitat only if the essential 

features thereon may require special 

management considerations or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat under 

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

when the best available scientific data 

do not demonstrate that the 

conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. 

However, an area currently occupied by 

the species, but not occupied at the time 

of listing, will likely, but not always, be 

essential to the conservation of the 

species, and therefore, may be included 

in the critical habitat designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub.L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific 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 is generally the listing 

package for the species. Additional 

information sources may include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of Section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat and make 

revisions thereto on the basis of the best 

scientific data available. Habitat is often 

dynamic, and species may move from 

one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all habitat areas eventually 

determined necessary for the recovery of 

the species. For these reasons, critical 

habitat designations do not imply that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations of the 

San Bernardino kangaroo rat, but are 

outside the critical habitat designation, 

will continue to be subject to 

conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific and 

commercial data available in 

determining areas occupied at the time 

of listing that contain features essential 

to the conservation of the San 

Bernardino kangaroo rat, and areas 

unoccupied at the time of listing that are 

essential to the conservation of the 

subspecies, or both. We have also 

reviewed available information 

pertaining to the habitat requirements of 

this subspecies. These data included: 

research and survey observations 

published in peer reviewed articles; 

regional Geographic Information System 

(GIS) coverages; Riverside County 

Multiple Species Habitat Conservation 

Program (MSHCP) database; the 

University of California, Riverside, 

species database; the California Natural 

Diversity Database; and data from 

reports submitted by biologists holding 

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

including results from ongoing research 

on the San Bernardino kangaroo rat by 

the San Bernardino County Museum. 

We are not currently proposing any 

areas outside the geographical area 

presently occupied by the subspecies. 

Primary Constituent Elements 

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

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

propose as critical habitat within areas 

occupied by the species at the time of 

listing, we consider those physical and 

biological features (primary constituent 

elements) that are essential to the 


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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33811 

conservation of the subspecies and that 

may require special management 

considerations or protection. These 

include, but are not limited to: (1) Space 

for individual and population growth 

and for normal behavior; (2) food, water, 

air, light, minerals, or other nutritional 

or physiological requirements; (3) cover 

or shelter; (4) sites for breeding, 

reproduction, and rearing (or 

development) of offspring; and (5) 

habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

The specific primary constituent 

elements (PCEs) required for the San 

Bernardino kangaroo rat are derived 

from the biological needs of the San 

Bernardino kangaroo rat as described 

below. 

Space for Individual and Population 

Growth and Normal Behavior 

San Bernardino kangaroo rats are 

typically found on alluvial fans, which 

are relatively flat or gently sloping 

masses of loose rock, gravel, and sand 

deposited by a stream as it flows into a 

valley or upon a plain (McKernan 1993, 

p. 1). This subspecies is also found on 

floodplains, washes, areas with braided 

channels, and in adjacent upland areas 

containing appropriate physical and 

vegetative characteristics (McKernan 

1993, p. 1). These areas consist of sand, 

loam, sandy loam, or gravelly soils 

(McKernan 1993, p. 1) that are 

associated with alluvial processes (i.e., 

the scour and deposition of clay, silt, 

sand, gravel, or similar material by 

running water such as rivers and 

streams; or debris flows). San 

Bernardino kangaroo rats have a strong 

preference for, and are more abundant 

on, soils deposited by alluvial processes 

(McKernan 1997, p. 36). These soils 

allow San Bernardino kangaroo rats to 

dig simple, shallow burrow systems for 

shelter and rearing offspring, and 

surface pits for food storage that provide 

for individual and population growth 

and for normal behavior of this 

subspecies. 

Few studies have been conducted on 

the burrowing behavior of the San 

Bernardino kangaroo rat; however, their 

burrowing habits are similar to the 

Merriam’s kangaroo rat (of which the 

San Bernardino kangaroo rat is a 

subspecies) which has been extensively 

studied. Merriam’s kangaroo rats have 

weak forelegs and are poor diggers; as a 

result, they dig simple shallow burrow 

systems where they spend 

approximately 75 percent of their lives 

(Reynolds 1958, pp. 113 and 122). 

Burrows consist of one or two chambers 

and average 6 inches in depth (Reynolds 

1960, p. 51). Kenagy (1973, p. 1207) 

observed that Merriam’s kangaroo rats 

occupied one to three simple burrows 

depending on the season. Merriam’s 

kangaroo rats do not have the ability to 

burrow into hard soils, and because of 

this, the highest numbers of kangaroo 

rats can be found on loose, sandy soils 

(Reynolds 1958, p. 113; Huey 1951, p. 

212). Light, textured soil that is 

favorable to burrowing is an important 

factor limiting the range of Merriam’s 

kangaroo rats (Reynolds 1958, p. 114). 

Sandy loam soils are not too heavy to 

discourage digging, yet they are not light 

enough to facilitate tunnel cave-ins that 

can occur in other soil types (Reynolds 

1958, p. 113). For these reasons, sandy 

loam soils found on alluvial fans and 

maintained by alluvial processes are 

crucial to the survival and normal 

behavior of the San Bernardino 

kangaroo rat. 

Alluvial sage scrub habitat is 

necessary for normal behavior of the 

San Bernardino kangaroo rat because 

this plant community provides cover 

and food resources within areas 

containing suitable soils for burrowing. 

Alluvial sage scrub is considered a 

distinct and rare plant community that 

dominates major outwash fans at the 

mouths of canyons along the coastal 

side of the San Gabriel, San Bernardino, 

and San Jacinto Mountains and some 

smaller floodplain and riverine areas of 

southern California (Hanes et al. 1989, 

p. 187). Described as a variant of coastal 

sage scrub (Smith 1980, p. 135), alluvial 

sage scrub is also referred to as alluvial 

scrub, Riversidean alluvial fan scrub, 

alluvial fan sage scrub, cismontane 

alluvial scrub, alluvial fan scrub, or 

Riversidean alluvial fan sage scrub. 

Alluvial sage scrub occurs on two types 

of floodplain soils, Riverwash 

Association soils and Soboba 

Association soils (Hanes et al. 1989, p. 

188). Comprised of an assortment of low 

growing drought-deciduous shrubs, 

larger evergreen woody shrubs, and 

other perennial species tolerant of a 

relatively sterile, rapidly draining 

substrate, this relatively open vegetation 

type is adapted to periodic severe 

flooding and erosion (Hanes et al. 1989, 

p. 187; Smith 1980, p. 126). 

Alluvial sage scrub vegetation 

includes plant species that are often 

associated with coastal sage scrub, 

chaparral, or desert transition 

communities (Smith 1980, p. 126). 

Common plant species found within 

these plant communities may include: 

Lepidospartum squamatum 

(scalebroom), Eriogonum fasciculatum 

(California buckwheat), Eriodictyon 

crassifolium (woolly yerba santa), 

Eriodictyon trichocalyx (hairy yerba 

santa), Yucca whipplei (our Lord’s 

candle), Rhus ovata (sugar bush), Rhus 

integrifolia (lemonadeberry), Malosma 

laurina (laurel sumac), Juniperus 

californicus (California juniper), 

Baccharis salicifolia (mulefat), 

Penstemon spectabilis (showy 

penstemon), Heterotheca villosa (golden 

aster), Eriogonum elongatum (tall 

buckwheat), Encelia farinosa (brittle 

bush), Opuntia spp. (prickly pear and 

cholla), Adenostoma fasciculatum 

(chamise), Prunus ilicifolia (holly-leaf 

cherry), Quercus spp. (oaks), Salvia 

apiana (white sage), annual forbs (e.g., 

Phacelia spp. (phacelia), Lupinus spp. 

(lupine), and Plagiobothrys spp. 

(popcorn flower)), and native and 

nonnative grasses. 

Three phases of alluvial sage scrub 

have been described: pioneer, 

intermediate, and mature. The phases 

are thought to correspond to factors 

such as flood scour, distance from flood 

channel, time since last flood, and 

substrate features (Smith 1980, p. 136; 

Hanes et al. 1989, p. 187). Under natural 

conditions, flood waters periodically 

break out of the main river channel in 

a complex pattern, resulting in a braided 

appearance to the floodplain and a 

mosaic of vegetation stages. Pioneer sage 

scrub, the earliest phase, is subject to 

frequent hydrological disturbance and 

the sparse vegetation pattern is usually 

renewed by frequent floods (Smith 

1980, p. 136; Hanes et al. 1989, p. 187). 

The intermediate phase, which is 

typically found on benches between the 

active channel and mature floodplain 

terraces, is subject to periodic flooding 

at longer intervals. The vegetation of 

early and intermediate stages is 

relatively open (less than 50 percent 

canopy cover) and supports the highest 

densities of the San Bernardino 

kangaroo rat (McKernan 1997, p. 50), 

likely due in part to few root systems to 

interfere with burrowing. Areas like 

these, with a significant amount of bare 

ground, can also facilitate movement for 

a bipedal species like the San 

Bernardino kangaroo rat. For Merriam’s 

kangaroo rats, an abundance of 

perennial grass cover can create an 

unfavorable environment by interfering 

with ease of travel and escape from 

predators (Reynolds 1958, p. 114). 

The oldest, or mature phase of 

alluvial sage scrub, which is found on 

elevated floodplain terraces, is rarely 

affected by flooding and supports the 

highest plant density (Smith 1980, p. 

137). Although mature areas are 

generally used less frequently or 

occupied at lower densities by San 

Bernardino kangaroo rats (likely due to 

extensive root systems and heavy 

vegetative cover that inhibit burrowing 


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and predator escape) than those 

supporting earlier phases, these areas 

are essential for the conservation of the 

subspecies. Lower portions of the 

floodplain, where higher densities of 

San Bernardino kangaroo rats are found, 

are likely to become inundated or lost 

due to scour and sediment deposition 

during flooding events, and some 

animals may drown during the event. In 

a study to determine the effects of 

flooding on Merriam’s kangaroo rats and 

two other heteromyid (family of rodents 

that includes the kangaroo rats, 

kangaroo mice, and pocket mice) 

species, Kenagy (1973, p. 1205) noted 

heavy burrow damage, and a 23 percent 

reduction in the number of chiseltoothed kangaroo rats (Dipodomys 

microps) trapped compared to pre-flood 

numbers. Elevated upland portions of 

the floodplain containing mature phase 

alluvial sage scrub with patches of 

suitable soils and vegetative cover can 

support some individuals, but the low 

density of animals suggests these areas 

likely remain occupied only because of 

their proximity to the more densely 

occupied lower elevation portions of the 

floodplain. More importantly for the 

preservation of the subspecies in 

channelized systems where bank-tobank flooding can occur, individuals 

occupying the upland areas may be the 

only San Bernardino kangaroo rats 

remaining for recolonization of the 

lower floodplain after flooding has 

subsided (Pavelka 2006). Research 

conducted by Braden and McKernan 

(2000, p. 16) during 1998 and 1999 

demonstrated that areas with late phases 

of floodplain vegetation, such as mature 

alluvial fan sage scrub and associated 

coastal sage scrub and chaparral, 

including some areas of moderate to 

dense vegetation such as nonnative 

grasslands, are at least periodically 

occupied by the subspecies. Due to the 

dynamic nature of the alluvial 

floodplain, all elevations within the 

floodplain and the associated phases of 

alluvial sage scrub habitat are essential 

to the conservation and long-term 

survival of the San Bernardino kangaroo 

rat. 

A limited amount of data exists 

pertaining to population dynamics of 

the San Bernardino kangaroo rat. 

Information is not currently available on 

several aspects of the subspecies’ life 

history such as fecundity (the capacity 

of an organism to produce offspring), 

survival, population age and sex 

structure, intra- and interspecific 

competition, and causes and rates of 

mortality. With respect to population 

density, Braden and McKernan (2000) 

documented substantial annual 

variation on a trapping grid in San 

Bernardino County, where densities 

ranged from 2 to 26 animals per ha (2.47 

ac). The reasons for these greatly 

disparate values during the 15-month 

study are unknown. These fluctuations 

bring to light several important aspects 

of the subspecies’ distribution and life 

history which should be considered 

when identifying areas essential for the 

conservation of the subspecies: (1) A 

low population density observed in an 

area at one point in time does not mean 

the area is occupied at the same low 

density during any other month, season, 

or year; (2) a low population density is 

not an indicator of low habitat quality 

or low overall value of the land for the 

conservation of the subspecies; (3) an 

abundance of San Bernardino kangaroo 

rats can decrease rapidly; and (4) one or 

more factors (e.g., food availability, 

fecundity, disease, predation, genetics, 

environment) are strongly influencing 

the subspecies’ population dynamics in 

one or more areas. High-amplitude, 

high-frequency fluctuations in small, 

isolated populations make the San 

Bernardino kangaroo rat extremely 

susceptible to local extirpation. 

Areas that contain low densities of 

San Bernardino kangaroo rats may be 

important for dispersal, genetic 

exchange, colonization of newly 

suitable habitat, and re-colonization of 

areas after severe storm events. The 

dynamic nature of the alluvial habitat 

leads to a situation where not all of the 

habitat associated with alluvial 

processes is suitable for the species at 

any point in time. However, areas 

generally considered unsuitable habitat, 

such as out-of-production vineyards and 

margins of orchards, can and do develop 

into suitable habitat for the subspecies 

through natural processes (67 FR 

19812). The San Bernardino kangaroo 

rat has been documented in areas 

containing suitable soils that have been 

altered due to human disturbance not 

typically associated with the subspecies, 

including nonnative grasslands; margins 

of orchards and out-of-use vineyards 

from adjacent, mature stage alluvial sage 

scrub with greater than 50 percent 

canopy cover; and areas of wildland/ 

urban interface within floodplains or 

terraces and adjacent to occupied 

habitat (67 FR 19812, April 23, 2002). 

These upland areas can support 

individuals for repopulation of wash 

areas extirpated by flood events 

(Pavelka 2006). This can occur directly 

by dispersal of adult individuals, or 

indirectly through dispersal of offspring 

(Pavelka 2006). 

Little is known about home range 

size, dispersal distances, or other spatial 

requirements of the San Bernardino 

kangaroo rat. However, home ranges for 

the Merriam’s kangaroo rat in the Palm 

Springs, California, area averaged 0.8 ac 

(0.3 ha) for males and 0.8 ac (0.3 ha) for 

females (Behrends et al. 1986, p. 204). 

Furthermore, Blair (1943, p. 26) 

reported much larger home ranges for 

Merriam’s kangaroo rats in New Mexico, 

where home ranges averaged 4.1 ac (1.7 

ha) for males and 3.9 ac (1.6 ha) for 

females. Space requirements for the San 

Bernardino kangaroo rat likely vary 

according to season, age and sex of 

animal, food availability, and other 

factors. Although outlying areas of their 

home ranges may overlap, Dipodomys 

adults actively defend small core areas 

near their burrows (Jones 1993, p. 583). 

Home range overlap between males and 

between males and females is extensive, 

but female-female overlap is slight 

(Jones 1993, p. 584). The degree of 

competition between San Bernardino 

kangaroo rats and sympatric (living in 

the same geographical area) species of 

kangaroo rats for food and other 

resources is not presently known. While 

we do not have sufficient information to 

quantify the home range required by the 

San Bernardino kangaroo rat, through 

the delineation of critical habitat in 

wash and upland areas, it is likely that 

we have included sufficient areas to 

provide the space needed to maintain 

the home range for this subspecies in 

this proposed revised critical habitat 

designation. 

Food 

As stated in the previous sections, the 

alluvial sage scrub plant community 

occupied by the San Bernardino 

kangaroo rat provides food resources for 

the subspecies. However, little is known 

about the specific diet of San 

Bernardino kangaroo rats. They emerge 

from their burrow systems at sunset and 

feed at night, when they are most active. 

San Bernardino kangaroo rats are 

generally granivorous (feed on seeds 

and grains) and like most Merriam’s 

kangaroo rats, often store large 

quantities of seeds in surface pits for 

later consumption (Reichman and Price 

1993, p. 540; Reynolds 1958, p. 126). 

This species feeds primarily on the 

seeds of alluvial sage scrub species, but 

green vegetation and insects can also be 

important seasonal food sources. 

Insects, when available, have been 

documented to constitute as much as 50 

percent of a kangaroo rat’s diet 

(Reichman and Price 1993, p. 540). 

Wilson et al. (1985, p. 731) reported 

that in comparison to other rodents, 

Merriam’s kangaroo rat, and 

heteromyids in general, have relatively 

low reproductive output that can be 

linked to food resources. Rainfall and 


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the availability of food have been cited 

as factors affecting kangaroo rat 

populations. Droughts lasting more than 

a year can cause rapid declines in 

population numbers after seed caches 

are depleted (Goldingay et al. 1997, p. 

56). 

Cover or Shelter 

San Bernardino kangaroo rats depend 

on proper soils for burrowing and 

vegetative cover for shelter from 

predation. Potential predators include 

the common barn owl (Tyto alba), great 

horned owl (Bubo virginianus), longeared owl (Asio otus), gray fox (Urocyon 

cinereoargenteus), coyote (Canis 

latrans), long-tailed weasel (Mustela 

frenata), bobcat (Felis rufus), badger 

(Taxidea taxus), San Diego gopher 

snake (Pituophis melanoleucus 

annectens), California king snake 

(Lampropeltis getulus californiae), red 

diamond rattlesnake (Crotalus ruber), 

southern Pacific rattlesnake (Crotalus 

viridus), and domestic cats (Felis cattus) 

(Bolger et al. 1997, p. 560; 67 FR 19812, 

April 23, 2002). 

Primary Constituent Elements for the 

San Bernardino Kangaroo Rat 

Under the Act and its implementing 

regulations, we are required to identify 

the known physical and biological 

features (PCEs) within the geographical 

area occupied by the San Bernardino 

kangaroo rat at the time of listing, which 

may require special management 

considerations or protection. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the San Bernardino kangaroo rat and the 

requirements of the habitat to sustain 

the essential life history functions of the 

subspecies, we have determined that the 

PCEs specific to the San Bernardino 

kangaroo are: 

(1) Alluvial fans, washes, and 

associated floodplain areas containing 

soils consisting predominately of sand, 

loamy sand, sandy loam, and loam, 

which provide burrowing habitat 

necessary for sheltering and rearing 

offspring, storing food in surface caches, 

and movement between occupied 

patches; 

(2) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas containing alluvial sage scrub 

habitat and associated vegetation, such 

as coastal sage scrub and chamise 

chaparral, with up to approximately 50 

percent canopy cover providing 

protection from predators, while leaving 

bare ground and open areas necessary 

for foraging and movement of this 

subspecies; and 

(3) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas, which may include marginal 

habitat such as alluvial sage scrub with 

greater than 50 percent canopy cover 

with patches of suitable soils (PCE 1) 

that support individuals for repopulation of wash areas following 

flood events. These areas may include 

agricultural lands, areas of inactive 

aggregate mining activities, and urban/ 

wildland interfaces. 

This proposed revision to the critical 

habitat designation is designed for the 

conservation of PCEs necessary to 

support the life history functions that 

were the basis for the proposal and the 

areas containing the PCEs. Because not 

all life history functions require all the 

PCEs, not all proposed revised critical 

habitat units will contain all the PCEs. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing 

contain features essential to the 

conservation of the subspecies that may 

require special management 

considerations or protection. We have 

also considered how revising the 

current designation of critical habitat 

highlights habitat in need of special 

management considerations or 

protection. 

The majority of all remaining suitable 

habitat, and the long-term persistence of 

the San Bernardino kangaroo rat, is 

threatened by the direct and indirect 

effects of: sand and gravel mining; 

construction, operation, and 

maintenance of flood control structures; 

water conservation activities; urban and 

industrial development; agricultural 

activities; and off-road vehicle activity. 

With an expanding human population 

in the region, it is likely that these 

activities will continue to threaten the 

habitat and PCEs upon which the San 

Bernardino kangaroo rat depends. 

Sand and gravel mining operations 

have degraded San Bernardino kangaroo 

rat habitat in all of the proposed revised 

critical habitat units, with major 

operations occurring in the Santa Ana 

River and Lytle Creek washes. Mining 

activities directly affect the PCEs for the 

subspecies by altering soil composition 

and structure, and by stripping away 

vegetative cover (PCEs 1 and 2). 

Furthermore, flood control structures 

are often built to protect mining 

operations from flood damage. This 

alters the hydrology essential for 

maintaining proper soil and alluvial 

sage scrub habitat for the San 

Bernardino kangaroo rat (PCEs 1 and 2). 

Special management considerations or 

protection may be required to minimize 

effects of mining activities on alluvial 

sage scrub habitat and the natural 

hydrological processes that maintain 

proper alluvial sage scrub conditions for 

the San Bernardino kangaroo rat. Such 

management may include restoring 

habitat in areas degraded from past 

mining activities to conditions suitable 

for this subspecies. 

Flood control and water conservation 

activities related to increasing human 

population and development have had 

major impacts on San Bernardino 

kangaroo rat habitat and the alluvial 

processes that maintain habitat in each 

of the proposed revised critical habitat 

units. Flood control berms, levees, and 

concrete-lined channels increase 

severity (velocity and scour) of flood 

events in lower elevations within the 

flood plain, and cut off upland portions 

of alluvial sage scrub habitat from 

hydrological processes that maintain 

suitable San Bernardino kangaroo rat 

conditions (PCEs 1, 2, and 3). In the 

absence of periodic flooding and 

scouring, upland alluvial sage scrub 

habitat increases in cover and in density 

of nonnative vegetation to the point 

where the open canopy and ground 

conditions (PCE 2) preferred by the 

subspecies no longer exist (Service 

2004, p. 293). Some flood control 

structures, such as concrete channels, 

can prevent movement and dispersal 

between occupied areas of the alluvial 

wash and floodplain. Decades of 

groundwater pumping have severely 

depleted groundwater reserves within 

San Bernardino kangaroo rat habitat and 

have resulted in an ever-increasing need 

to recharge groundwater supplies by 

percolation of local or imported water 

sources into the local groundwater basin 

(Service 2004, p. 293). Further habitat 

degradation occurs where groundwater 

recharge ponds (percolation basins) 

have been constructed. Recharge 

structures are unsuitable for the San 

Bernardino kangaroo rat due to periodic 

standing water. These structures are 

especially evident in the Santa Ana 

River and San Jacinto River washes. 

Special management considerations or 

protection may be required to minimize 

effects of flood control and water 

conservation activities on alluvial sage 

scrub habitat and the natural 

hydrological processes that maintain 

proper alluvial sage scrub conditions for 

the San Bernardino kangaroo rat. 

Development projects pose a serious 

threat to San Bernardino kangaroo rat 

habitat in all three proposed revised 

critical habitat units. As the human 

population of the surrounding area 

continues to increase, the threat of 

development encroaching upon alluvial 

washes and associated upland areas will 

persist (PCEs 1, 2, and 3). Large-scale 


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development projects, like the Lytle 

Creek North Master Planned 

Community (described below), 

permanently eliminate and fragment 

habitat containing the PCEs for the 

subspecies. Furthermore, continued 

fragmentation of habitat is likely to 

promote higher levels of predation by 

native animals (Bolger et al. 1997, p. 

560) and urban-associated animals (e.g., 

domestic cats, opossums (Didelphis 

virginianus), and striped skunks 

(Mephitis mephitis)) as the interface 

between natural habitat and urban areas 

is increased (Churcher and Lawton 

1987, p. 452). Roadways and bridges 

built to accommodate the growing 

population in the area constrict channel 

width and contribute to the removal of 

alluvial fan habitat from normal 

hydrological processes (PCE 1). The 

downstream alluvial benches become 

isolated behind the fill used to construct 

the bridge within the channel area and 

do not experience natural flood-borne 

scour and deposition. Pier and footing 

placement within channels is a typical 

necessary bridge design feature. 

Instream piers create scour areas in front 

of the piers, increase water velocity 

through the embankments and piers 

(which can result in downstream 

erosion), and create a permanent 

shadow over habitat under the bridge. 

These factors typically result in 

permanently degraded habitat for San 

Bernardino kangaroo rat even though 

high flows are seasonal in this area. 

Special management considerations or 

protection may be required to minimize 

the impacts of development within the 

alluvial wash and adjacent upland 

areas. Areas of the alluvial washes and 

floodplains adjacent to development 

may require exclusionary fencing and 

signage to minimize human and 

domestic animal disturbance of San 

Bernardino kangaroo rat habitat. 

Because this subspecies is active at 

night, lights from adjacent developed 

areas should be minimized and directed 

away from San Bernardino kangaroo rat 

habitat. 

Agricultural activities adjacent to all 

three proposed revised critical habitat 

units occasionally result in the discing 

of patches of suitable or occupied 

habitat that may be distributed 

throughout upland agricultural areas. 

Discing destroys San Bernardino 

kangaroo rat burrows and degrades 

remaining vegetation associations 

(Service 2004, p. 293) (PCEs 1 and 2). 

This can contribute to the susceptibility 

of local populations to extinction during 

large-scale flood events by restricting 

San Bernardino kangaroo rats to areas 

most vulnerable to flooding (i.e., lower 

elevations of the floodplain) (Service 

2004, p. 293). Special management 

considerations or protection may be 

required to minimize effects of 

agricultural activities on alluvial sage 

scrub habitat. 

Unauthorized off-road vehicle activity 

continues to be a threat to San 

Bernardino kangaroo rat habitat in the 

San Jacinto River wash area. Most of 

this activity occurs within the wash 

downstream of the East Main Street/ 

Lake Park Drive Bridge. Off-road activity 

that goes unchecked directly damages 

plant communities, the soil crust, and 

the burrow systems of kangaroo rats, 

thereby degrading habitat (Bury et al. 

1977, p. 16; Service 2004, p. 293) (PCEs 

1 and 2). Special management 

considerations or protection, such as 

exclusionary fencing, additional 

enforcement, and signage placed around 

areas of the wash, may be needed to 

minimize impacts from unauthorized 

off-road vehicle use. 

Criteria Used To Identify Critical 

Habitat 

We are proposing to revise critical 

habitat for the San Bernardino kangaroo 

rat in areas that we have determined 

were occupied at the time of listing, and 

that contain sufficient primary 

constituent elements (PCEs) to support 

life history functions essential for the 

conservation of the species. Lands are 

proposed for revised designation based 

on sufficient PCEs being present to 

support the life processes of the species. 

Some lands contain all PCEs and 

support multiple life processes. Some 

lands contain only a portion of the PCEs 

necessary to support the particular use 

of that habitat. 

We define occupied habitat as: (a) 

Those areas containing occurrence data 

from the time of listing (1980 to 1998); 

(b) those areas containing occurrence 

data since the time of listing (1998 to 

present); (c) areas adjacent to and 

between occurrence points that 

maintain connectivity of occurrences in 

one continuous patch of suitable 

habitat. As discussed in the Background 

section of this proposed rule, 

occurrences discovered since the listing 

of the subspecies in 1998 are within 

areas known to be occupied at the time 

of listing (Santa Ana River wash, Lytle 

and Cajon washes, and San Jacinto River 

area). 

In this proposed revised designation 

we have focused primarily on core 

populations (i.e., areas where the 

subspecies has been repeatedly detected 

through live trapping) that are 

considered necessary for conservation 

and recovery of the San Bernardino 

kangaroo rat. We believe protecting 

these core populations is what is 

necessary for recovery of the species. 

Protecting peripheral populations, or 

areas of degraded habitat where sitings 

are sporadic is not necessary for 

recovery. 

Utilizing 2005 aerial imagery and 

occurrence data used to determine areas 

of occupancy, we delineated proposed 

revised critical habitat on maps to 

include non-degraded alluvial fans, 

washes, floodplains, and adjacent 

upland areas containing the PCEs 

required by the San Bernardino 

kangaroo rat. We then made site visits 

accompanied by subspecies experts to 

confirm the presence of PCEs in the 

areas delineated on the maps. Areas 

determined not to contain any of the 

PCEs (i.e., degraded) during site visits 

are not included in the areas proposed 

as revised critical habitat. Because of the 

importance of upland habitat for source 

populations to re-populate wash areas 

following flood events, we include nondegraded (containing one or more PCEs) 

upland habitat adjacent to occupied 

wash habitat containing appropriate 

soils and vegetation community in this 

proposed revised designation. 

When determining the proposed 

revisions to critical habitat boundaries, 

we made every effort to avoid including 

developed areas such as buildings, 

paved areas, and other structures that 

lack PCEs for the San Bernardino 

kangaroo rat. Areas currently being used 

for sand/gravel mining operations (e.g., 

pits, staging areas) do not contain the 

PCEs required by the San Bernardino 

kangaroo rat. The scale of the maps 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

developed structures and the land under 

them inadvertently left inside critical 

habitat boundaries shown on the maps 

of this proposed revision to critical 

habitat have been excluded by text in 

this rule and are not proposed for 

designation as critical habitat. 

Therefore, Federal actions limited to 

these areas would not trigger section 7 

consultation, unless they may affect the 

subspecies or PCEs in adjacent critical 

habitat. 

Summary of Proposed Changes to 

Currently Designated Critical Habitat 

The areas identified in this proposed 

rule constitute a proposed revision of 

the critical habitat designation for the 

San Bernardino kangaroo rat, published 

on April 23, 2002 (67 FR 19812). For 

maps showing existing and proposed 

revised critical habitat visit our Web site 

at http://carlsbad.fws.gov. 


jlentini on PROD1PC65 with PROPOSALS2
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Our proposed revised critical habitat 

designation is substantially smaller than 

the existing designation. Given the new 

information that has become available to 

us in the five years since the previous 

designation, we find that we 

erroneously designated some areas. We 

find that areas previously proposed but 

not proposed in this rule are not 

essential to the conservation of the 

species, because of new information (see 

Criteria Used To Identify Critical 

Habitat section). The changes in this 

rule are due to several factors. Better 

biological information has allowed us to 

more specifically define PCEs for this 

species, and site visits in December 

2006 and January 2007 allowed us to 

more precisely define these areas on the 

ground. This allowed us to remove areas 

that do not meet our criteria for features 

that are essential to the conservation of 

the species. The 2002 critical habitat 

designation included areas that 

supported few occurrence records. Such 

areas of low density occupation, or 

sporadic occupancy, have been removed 

from the proposed revised designation, 

for such areas do not represent core 

populations and, therefore, are not 

necessary for the conservation and 

recovery of the species. Finally, we have 

employed refined mapping techniques 

in the current revision, which have 

allowed us to more precisely map areas 

that contain PCEs. This more refined 

approach has allowed us to remove 

areas that do not meet the definition of 

critical habitat. 

The main differences in this proposed 

revised designation include the 

following: 

(1) On the basis of our new analyses, 

we have determined that portions of 

existing Unit 1 (Santa Ana River), Unit 

2 (Lytle and Cajon Creeks), and Unit 3 

(San Jacinto River), and all of Unit 4 

(Etiwanda Alluvial Fan and Wash) do 

not contain PCEs in the quality and 

quantity needed for conservation of the 

species or do not support core 

populations of the taxon. These areas 

total 24,211 ac (9,798 ha) of habitat 

originally designated as critical habitat 

in 2002. Therefore we are not proposing 

to include these areas in our proposed 

revision to critical habitat. The 

following paragraphs provide unit by 

unit explanations for why areas 

previously designated as critical habitat 

no longer fit our definition of critical 

habitat for the San Bernardino kangaroo 

rat. 

We have removed approximately 

5,311 ac (2,149 ha) within Unit 1 from 

our proposed revision to critical habitat, 

largely because portions of the Unit do 

not contain the PCEs, but also because 

occurrence data for some areas indicates 

that they do not support a core 

population of San Bernardino kangaroo 

rat. South of Mill Creek, a flood control 

levee has cut off habitat from fluvial 

processes, which has resulted in 

overgrown vegetation and water 

retention basins that are unsuitable 

habitat conditions for the subspecies. A 

large area extending from the existing 

critical habitat in and south of Plunge 

Creek west to the confluence of City 

Creek with the Santa Ana River has 

been degraded through mining 

operations, flood control structures (and 

the subsequent loss of fluvial influence), 

and water retention basins. The habitat 

downstream of the Tippecanoe Avenue 

Bridge is heavily channelized with steep 

banks inhibiting the use of upland 

habitat; we do not have data indicating 

that this area is occupied. Because these 

areas do not contain PCEs and/or do not 

support core populations, we are not 

including them in the proposed revision 

to critical habitat. 

We have removed approximately 

9,284 ac (3,757 ha) within Unit 2 from 

our proposed revision to critical habitat, 

largely because portions of the Unit do 

not contain the PCEs, but also because 

occurrence data for some areas indicates 

that they do not support a core 

population of San Bernardino kangaroo 

rat. Two areas northeast of the main 

Lytle-Cajon Creek unit contain habitat 

that has been degraded and these areas 

are largely unoccupied. The 

southernmost portion of Lytle Creek 

contains habitat that has been degraded 

through surface mining and flood 

control structures, making this area 

unsuitable for the subspecies. The upper 

reaches of both Lytle and Cajon Creeks 

contain large rocky substrates that do 

not provide habitat for this subspecies 

and we have no recent occurrence data 

for these upstream areas. Portions of 

habitat along the Lytle Creek arm have 

been degraded from sand and gravel 

mining operations and associated 

infrastructure. Approximately 670 ac 

(271 ha) of existing critical habitat north 

of Lytle Creek and east of I–15 is 

currently under development for the 

Lytle Creek North development project, 

and was addressed through formal 

section 7 consultation with the Service. 

A large expanse of a remnant flood plain 

south of Lytle Creek and I–15, and west 

of Riverside Avenue is partially 

developed and does not contain the 

PCEs for the subspecies. This area is 

void of fluvial influence and is cut off 

from the core population by roadways. 

Because these areas do not contain PCEs 

and/or do not support core populations, 

we are not including them in the 

proposed revision to critical habitat. 

We have removed approximately 

4,796 ac (1,941 ha) within Unit 3 from 

our proposed revision to critical habitat, 

largely because portions of the Unit do 

not contain the PCEs, but also because 

occurrence data for some areas indicates 

that they do not support a core 

population of San Bernardino kangaroo 

rat. Bautista Creek and the downstream 

reach of the San Jacinto River are largely 

channelized, and do not provide 

suitable habitat or contain the PCEs 

essential to the San Bernardino 

kangaroo rat. These channelized areas 

prevent connectivity with the core 

population in the San Jacinto wash. We 

have do not have occurrence data or 

habitat condition data for the two 

tributaries on Tribal land north of the 

San Jacinto wash and are not proposing 

critical habitat on Tribal lands (see 

Government-to-Government 

Relationship with Tribes section). 

Portions of the habitat downstream of 

the Bautista Creek confluence have been 

or are in the process of being developed 

or are being used for water conservation 

activities and therefore this habitat does 

not contain the PCEs. Because these 

areas do not contain PCEs and/or do not 

support core populations, we are not 

including them in the proposed revision 

to critical habitat. 

We have removed approximately 

4,820 ac (1,951 ha) within Unit 4 from 

our proposed revision to critical habitat 

because Unit 4 consists largely of 

unoccupied areas that are not essential 

to the conservation of the San 

Bernardino kangaroo rat. Occupied 

areas within this unit do not contain the 

PCEs necessary for the subspecies. 

(2) We re-evaluated and revised the 

PCEs as needed in light of 

Homebuilder’s Ass’n of Northern Cal. v. 

U.S. Fish and Wildlife Service, 268 F. 

Supp.2d 1197 (E.D. Cal. 2003), other 

applicable law, and current Service 

guidelines and policies. We propose to 

revise the PCEs to provide more 

specificity with regards to the location 

of and necessity for suitable soil types, 

vegetative habitat, and upland areas 

related to the biological needs of the 

subspecies. We also include a range of 

the preferred percentage of vegetative 

cover. Revisions to the PCEs alone did 

not result in the removal of existing 

critical habitat from this proposed 

revised critical habitat designation. 

Proposed Revisions to the Critical 

Habitat Designation 

We are proposing approximately 

9,079 ac (3,674 ha) within three units as 

critical habitat for the San Bernardino 

kangaroo rat. These units, which 

generally correspond to the units in the 

2002 designation, if finalized, would 


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entirely replace the current critical 

habitat designation for the San 

Bernardino kangaroo rat in 50 CFR 

17.95(a). The critical habitat areas 

described below constitute our best 

assessment currently of areas occupied 

at the time of listing containing the 

PCEs that may require special 

management considerations or 

protection. The three units proposed as 

critical habitat are: (1) Unit 1—Santa 

Ana River Wash, (2) Unit 2—Lytle/ 

Cajon Creek Wash, and (3) Unit 3—San 

Jacinto River Wash. 

Of the 9,079 ac (3,674 ha) being 

proposed as revised critical habitat, we 

are proposing to exclude approximately 

2,544 ac (1,029 ha) from the final critical 

habitat designation under section 4(b)(2) 

of the Act. See Exclusions Under 

Section 4(b)(2) of the Act section for a 

detailed discussion. 

The approximate area (ac, ha) 

encompassed within each proposed 

revised critical habitat unit, land 

ownership, and areas proposed for 

exclusion from the final critical habitat 

designation are shown in Table 1. 

TABLE 1.—AREA (ACRES (AC), HECTARES (HA)) BEING PROPOSED AS REVISED CRITICAL HABITAT, LAND OWNERSHIP, 

AND AREA BEING PROPOSED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION FOR THE SAN

BERNARDINO KANGAROO RAT IN SAN BERNARDINO AND RIVERSIDE COUNTIES, CALIFORNIA

[Area estimates reflect all land within proposed critical habitat unit boundaries] 

Critical habitat unit Land ownership Area proposed as revised 

critical habitat 

Area being considered for 

exclusion from final critical 

habitat 

1. Santa Ana River Wash, San Bernardino County ........ Federal (BLM) 1 ................. 559 ac (226 ha) ................. 00 ac (00 ha). 

Local2 ................................ 268 ac (109 ha) ................. 268 ac (109 ha). 

Private ............................... 2,797 ac (1,132 ha) ........... 742 ac (300 ha). 

Subtotal ............................. 3,624 ac (1,467 ha).

2. Lytle/Cajon Creek Wash, San Bernardino County ..... Federal (USFS) 3 ............... 89 ac (36 ha) ..................... 00 ac (00 ha). 

Private ............................... 4,597 ac (1,860 ha) ........... 1,271 ac (514 ha). 

Subtotal ............................. 4,686 ac (1,896 ha)..

3. San Jacinto River Wash, Riverside County ................ Water District 4 ................... 506 ac (205 ha) ................. 00 ac (00 ha). 

Local Flood5 ...................... 94 ac (38 ha) ..................... 94 ac (38 ha). 

Private ............................... 169 ac (68 ha) ................... 169 ac (68 ha). 

Subtotal ............................. 769 ac (311 ha)..

Total .......................................................................... ............................................ 9,079 ac (3,674 ha) ........... 2,544 ac (1,029 ha). 

1—BLM = Bureau of Land Management. 

2—Local = Local Reuse Authority. 

3—USFS = U.S. Forest Service. 

4—Water District = Eastern Municipal Water District and Lake Hemet Municipal Water District. 

5—Local Flood = Riverside County Flood Control. 

TABLE 2.—OCCUPANCY OF PROPOSED REVISED CRITICAL HABITAT UNITS FOR THE SAN BERNARDINO KANGAROO RAT. 

Critical habitat unit Occupied at the 

time of listing? 

Occupied currently? Acres (hectares) 

1. Santa Ana River Wash, San Bernardino County ......................................... Yes ................... Yes ................... 3,624 ac (1,467 ha). 

2. Lytle/Cajon Creek Wash, San Bernardino County ....................................... Yes ................... Yes ................... 4,686 ac (1,896 ha). 

3. San Jacinto River Wash, Riverside County ................................................. Yes ................... Yes ................... 769 ac (311 ha). 

Total ........................................................................................................... ........................... ........................... 9,079 ac (3,674 ha) 

Below, we present brief descriptions 

of all units and reasons why they meet 

the definition of critical habitat for the 

San Bernardino kangaroo rat. 

Unit 1: Santa Ana River Wash 

Unit 1 consists of approximately 

3,624 ac (1,467 ha) and is located in San 

Bernardino County. This unit includes 

the Santa Ana River and portions of 

City, Plunge, and Mill creeks. The area 

includes lands within the cities of San 

Bernardino, Redlands, Highland, and 

Colton. Although Seven Oaks Dam 

(northeast of Unit 1) impedes sediment 

transport and reduces the magnitude, 

frequency, and extent of flood events 

from the Santa Ana River, the system 

still retains partial fluvial dynamics 

because contributions from Mill Creek 

are not impeded by a dam or debris 

basin. This critical habitat unit was 

occupied at the time of listing, is 

currently occupied, and contains all of 

the PCEs (PCEs 1, 2, and 3) essential to 

the conservation of the San Bernardino 

kangaroo rat. Additionally, this unit 

contains the highest densities of San 

Bernardino kangaroo rat in the Santa 

Ana wash. The PCEs contained within 

this unit may require special 

management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. 

Approximately 742 ac (300 ha) of Unit 

1 occurs within the Woolly-Star 

Preserve Area (WSPA), a section of the 

flood plain downstream of Seven Oaks 

Dam that was preserved by the flood 

control districts of Orange, Riverside, 

and San Bernardino counties. The 

WSPA was established in 1988 by the 

Army Corps of Engineers (ACOE) to 

minimize the effects of Seven Oaks Dam 

on the federally endangered plant, 


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Eriastrum densifolium ssp. sanctorum 

(Santa Ana River woolly-star). This area 

of alluvial fan scrub in the wash near 

the low-flow channel of the river was 

designated for preservation because 

these sections of the wash were thought 

to have the highest potential to maintain 

the hydrology necessary for the periodic 

regeneration of early phases of alluvial 

fan sage scrub. A 1993 Management 

Plan for the Santa Ana River WSPA has 

been completed, and a draft multispecies habitat management plan 

(MSHMP) for WSPA lands, which 

includes protection for the San 

Bernardino kangaroo rat, is to be 

completed as an additional conservation 

measure pursuant to our December 19, 

2002, biological opinion on operations 

for Seven Oaks Dam (Service 2002b, p. 

8). As a result, we are proposing to 

exclude WSPA lands (741 ac (300 ha)) 

that fall within the area proposed as 

revised critical habitat from the final 

revised critical habitat designation 

based on the benefits to the subspecies 

provided by these plans (see Exclusions 

Under Section 4(b)(2) of the Act for a 

detailed discussion). 

In 1994, the Bureau of Land 

Management (BLM) designated three 

parcels in the Santa Ana River, a total 

of approximately 760 ac (305 ha), as an 

ACEC (Area of Critical Environmental 

Concern). One parcel is located south of 

the Seven Oaks barrow pit, another is 

farther west and south of Plunge Creek, 

and the third is located farther west 

between two large mining pits. The 

primary goal of this ACEC designation 

is to protect and enhance the habitat of 

federally listed plant species occurring 

in the area while providing for the 

administration of valid existing water 

conservation rights. Although the 

establishment of this ACEC is important 

in regard to conservation of sensitive 

species and communities in this area, 

the administration of valid existing 

water conservation rights conflicts with 

the BLM’s ability to manage their lands 

for the San Bernardino kangaroo rat. 

Existing rights include a withdrawal of 

Federal lands for water conservation 

through an act of Congress on February 

20, 1909 (Public Law 248, 60th Cong., 

2nd sess.). The entire ACEC is included 

in this withdrawn land and may be used 

for water conservation measures such as 

the construction of percolation basins. 

Although the BLM is coordinating with 

the Service to conserve San Bernardino 

kangaroo rat habitat, at this time we do 

not consider these lands to be managed 

for the benefit of the San Bernardino 

kangaroo rat or its PCEs; therefore, we 

are not proposing to exclude these lands 

from the final revised critical habitat 

designation. 

We are currently coordinating with 

the BLM, ACOE, San Bernardino Valley 

Conservation District, Cemex 

Construction Materials, Robertson’s 

Ready Mix, and other local interests in 

an attempt to establish the Santa Ana 

River Wash Conservation Area. The 

objective of these discussions is to 

consolidate a large block of alluvial fan 

scrub occupied by three federally 

endangered species (the San Bernardino 

kangaroo rat, E. d. ssp. sanctorum, and 

Dodecahema leptoceras (slender-horned 

spineflower)) and one federally 

threatened species (the coastal 

California gnatcatcher (Polioptila 

californica ssp. californica)). The area 

under consideration includes the 

majority of the Santa Ana wash from 

just downstream of the Seven Oaks Dam 

and the confluence of Mill Creek with 

the Santa Ana River, downstream to the 

City Creek confluence. The area is 

envisioned to include BLM’s ACEC 

lands and the ACOE’s preservation 

lands for E. d. ssp. sanctorum. This 

cooperative agreement, expected to be 

completed within the next 1 to 2 years, 

would reconfigure and consolidate sand 

and gravel mining operations in this 

unit to reduce adverse effects to these 

listed species and remaining alluvial 

sage scrub communities. While this 

effort is likely to benefit the San 

Bernardino kangaroo rat through the 

establishment of preserve lands that will 

be managed for the subspecies, the final 

configuration has not been completed. 

Therefore, we are not proposing to 

exclude any lands within the proposed 

Santa Ana River Wash Conservation 

Area from the final revised critical 

habitat designation. 

Approximately 268 ac (109 ha) of 

occupied habitat in the Santa Ana River 

wash has been set aside for conservation 

in perpetuity by the U.S. Air Force as 

part of on-base site remediation efforts 

at the former Norton Air Force Base 

(AFB) in San Bernardino, California. 

These areas are managed specifically for 

the San Bernardino kangaroo rat and E. 

d. ssp. sanctorum pursuant to the 

Former Norton Air Force Base 

Conservation Management Plan (CMP) 

completed in March 2002. We are 

proposing to exclude these 268 ac (109 

ha) from the final revised critical habitat 

designation based on benefits provided 

to San Bernardino kangaroo rat habitat 

under the CMP (see Exclusions Under 

Section 4(b)(2) of the Act for a detailed 

discussion). 

Unit 2: Lytle/Cajon Creek Wash 

Unit 2, which encompasses 

approximately 4,686 ac (1,896 ha) in 

San Bernardino County, includes the 

northern extent of this subspecies’

remaining distribution. This unit 

contains habitat along and between 

Lytle and Cajon creeks from the 

Interstate 15 Bridge in Lytle Creek and 

the Kenwood Avenue Cajon Boulevard 

junction in Cajon Creek, downstream to 

Highland Avenue. Proposed Unit 2 was 

occupied at the time of listing, is 

currently occupied, and contains all of 

the PCEs (PCEs 1, 2, and 3) essential to 

the survival and conservation of the San 

Bernardino kangaroo rat. Additionally, 

this unit includes some of the last 

remaining alluvial fans, flood plain 

terraces, historic braided river channels, 

and associated alluvial sage scrub and 

upland vegetation that provides habitat 

for the San Bernardino kangaroo rat in 

the Lytle/Cajon Creek wash. Proposed 

Unit 2 also contains the highest 

densities of San Bernardino kangaroo rat 

in the Lytle/Cajon wash. The PCEs 

within this unit may require special 

management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. 

The hydro-geomorphological 

processes that apparently rejuvenate 

and maintain the dynamic mosaic of 

alluvial fan sage scrub are still largely 

intact in Lytle and Cajon creeks (i.e., 

stream flows are not impeded by dams 

or debris basins), and the remaining 

habitat allows dispersal between these 

two drainages, which is important for 

genetic exchange between populations 

(67 FR 19812, April 23, 2002). This unit 

is adjacent to large tracts of 

undeveloped land and contains upland 

areas occupied by the subspecies (PCEs 

1, 2, and 3). 

Several areas in Unit 2 will be or are 

protected and being managed to some 

extent for the San Bernardino kangaroo 

rat. The Cajon Creek Habitat 

Conservation Management Area 

(HCMA) includes 1,378 ac (558 ha) to 

offset approximately 2,270 ac (920 ha) of 

sand and gravel mining proposed within 

and adjacent to Cajon Creek. Of the 

1,378-ac (558-ha) Cajon Creek HCMA, 

approximately 610 ac (245 ha) is the 

Cajon Creek Conservation Bank 

established to help conserve 

populations of 24 species associated 

with alluvial fan scrub including the 

San Bernardino kangaroo rat. 

Furthermore, the remaining 768 ac (311 

ha) have been set aside as permanent 

conservation lands. These conservation 

lands will be managed in perpetuity for 

alluvial fan scrub habitat and associated 

listed species (including the San 

Bernardino kangaroo rat) pursuant to 


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the Habitat Enhancement and 

Management Plan (HEMP) (M. Blane 

and Associates 1996) and associated 

Memorandum of Understanding and 

Implementation Agreement for the 

Cajon Creek Habitat Management Area 

(MOU) (CalMat Co. 1996). According to 

the Service’s GIS data based on 

information provided by Vulcan 

Materials, the footprint of the Cajon 

Creek HCMA is approximately 1,271 ac 

(514 ha). Thus, we are proposing to 

exclude these 1,271 ac (514 ha) from the 

final revised critical habitat designation 

based on benefits provided by the 

HEMP and MOU (see Exclusions Under 

Section 4(b)(2) of the Act for a detailed 

discussion). We may consider excluding 

the remaining 107 ac (43 ha) if we 

receive additional information during 

the public comment period that leads to 

a determination that the benefits of 

exclusion would outweigh the benefits 

of including these lands in our revised 

critical habitat designation. 

In 2003, the Service issued a 

biological opinion for the Lytle Creek 

North Master Planned Community, 

which falls within the boundary of 

existing San Bernardino kangaroo rat 

habitat (Service 2003a, FW–SB–

1640.11). The project includes an 

approximately 677 ac (274 ha) master 

planned community with over 2,400 

residential units. Construction activities 

are proposed to be phased over an 

estimated 5 to 10 years. 

As an off-site measure for this project, 

the Lytle Creek Development Company 

will dedicate approximately 213 ac (86 

ha) of largely undeveloped habitat 

within Lytle Creek (within proposed 

Unit 2) as a conservation area for the 

San Bernardino kangaroo rat. Forty 

acres (16 ha) of this lies within the 

floodplain and will be managed for the 

San Bernardino kangaroo rat in 

perpetuity (Service 2003a, p. 42). 

However, to date, no conservation 

easements or endowments have been 

secured for the lands proposed as 

conservation areas, and a long-term 

management plan has not yet been 

completed. Therefore, we are not 

proposing to exclude from the final 

revised designation the 213 ac (86 ha) of 

conservation land that will be 

established as a result of this project. 

However, we may consider excluding 

these conservation lands from the final 

designation (under section 4(b)(2) of the 

Act) if we receive a finalized 

management plan that benefits this 

subspecies by the end of the public 

comment period. 

On June 15, 1999, we issued our 

biological opinion on the construction 

and extension of the north levee at 

Sunwest Materials’ (now CEMEX) Lytle 

Creek Quarry (Service 1999, 1–6–99–F–

42). The armored, engineered levee 

(over 10,000 feet (3,048 meters) in 

length) protects mining operations from 

flooding and replaces a shorter, earthen 

embankment (Service 1999, p. 3). As a 

conservation measure for this project, 

Sunwest Materials delivered to the 

California Department of Fish and Game 

a conservation easement deed to 

approximately 26 ac (11 ha) delineated 

as Conservation Area 1 to protect 

biological resources in perpetuity 

(Service 1999, p. 7). In addition, 

Sunwest Materials is to record a 

biological resource deed restriction on 

approximately 12 ac (5 ha) of land to 

permanently preclude activities that 

would interfere with habitat value 

(Service 1999, p. 8). However, since a 

management plan benefiting the San 

Bernardino kangaroo rat has not yet 

been developed for these lands we are 

not proposing to exclude these 38 ac (16 

ha) from the final revised critical habitat 

designation. We may consider excluding 

these conservation lands from the final 

designation (under section 4(b)(2) of the 

Act) if we receive a finalized 

management plan that benefits this 

subspecies by the end of the public 

comment period. 

Unit 3: San Jacinto River Wash 

Unit 3 encompasses approximately 

769 ac (311 ha) in Riverside County and 

includes areas along the San Jacinto 

River in the vicinity of San Jacinto, 

Hemet, and Valle Vista. This unit, 

which represents the southern extent of 

the currently known distribution of the 

subspecies, encompasses the San Jacinto 

River wash from the Blackburn Road/ 

Lake Hemet Main Canal area, 

downstream to the East Main Street 

Bridge. This unit includes all of the 

PCEs (PCEs 1, 2, and 3) essential to the 

conservation of the San Bernardino 

kangaroo rat, was occupied at the time 

of listing, and is currently occupied. 

Additionally, this unit contains one of 

only three extant populations of San 

Bernardino kangaroo rat and is the only 

population in Riverside County. 

Historically, the San Bernardino 

kangaroo rat has occurred along the San 

Jacinto River from the upper reach of 

habitat in the river downstream past 

State Route 79. In Bautista Creek, the 

subspecies has occurred upstream of the 

Bautista flood control basin until the 

topography of the canyon becomes too 

steep. The PCEs within this unit may 

require special management 

considerations or protection to 

minimize impacts associated with flood 

control operations, channelization, 

water conservation projects 

(groundwater recharge ponds), off-road 

activity, and urban development. 

Lands within Unit 3 are adjacent to 

lands of the Soboba Band of Luisen ̃ o 

Indians Reservation. We are not 

proposing these lands as critical habitat 

for the San Bernardino kangaroo rat (see 

Government-to-Government 

Relationship with Tribes section for a 

detailed discussion). 

At the confluence of the San Jacinto 

River and Bautista Creek, the Eastern 

Municipal Water District (EMWD) will 

implement an integrated water recharge 

and recovery program that includes the 

construction of recharge basins and well 

sites. The Service issued a biological 

opinion for this project on November 

16, 2006 (Service 2006, FWS–WRIV–

4051.5). The project will impact 

approximately 35 ac (14 ha) of land 

within the floodplain and 2 ac (0.8 ha) 

of upland habitat (Service 2006, p. 21) 

adjacent to proposed revised critical 

habitat Unit 3. These impact areas, 

totaling approximately 37 ac (15 ha), are 

within the currently designated critical 

habitat but are not proposed as revised 

critical habitat because they have been 

addressed by the section 7 consultation 

and biological opinion, which found 

that the action did not adversely modify 

the currently designated critical habitat. 

However, the habitat will be 

permanently lost through the action, 

and to offset that loss of occupied 

habitat for the San Bernardino kangaroo 

rat, EMWD will protect and manage 

approximately 117 ac (47 ha) of land in 

three separate conservation areas along 

the San Jacinto River (Service 2006, p. 

22). EMWD will preserve these lands in 

the form of a conservation easement and 

develop a management plan to be 

implemented in perpetuity to provide 

for the long-term conservation of the 

San Bernardino kangaroo rat (Service 

2006, pp. 6–7). These conservation areas 

will combine with an existing parcel of 

conservation land (16 ac (6 ha)) set aside 

under a previous biological opinion of 

a seasonal storage and recovery project 

proposed by EMWD (Service 2000b, 

FWS–WRIV–1045.1). We may consider 

excluding any or all portions of these 

133 ac (54 ha) of conservation lands 

addressed through these two section 7 

consultations and issued biological 

opinions from the final revised 

designation (under section 4(b)(2) of the 

Act) if we receive finalized management 

plans that benefit this subspecies by the 

end of the public comment period. 

All private lands proposed as revised 

critical habitat in the San Jacinto River 

wash fall within the boundaries of the 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP). Therefore, we are proposing 


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to exclude private lands under the 

jurisdiction of permittees to the MSHCP 

and all lands owned and managed by 

permittees to the MSHCP within this 

area (263 ac (106 ha)) based on the 

benefits provided to the San Bernardino 

kangaroo rat by the Western Riverside 

County MSHCP (see Exclusions Under 

Section 4(b)(2) of the Act for a detailed 

discussion). 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

destroy or adversely modify critical 

habitat. In our regulations at 50 CFR 

402.02, we define destruction or adverse 

modification as ‘‘a direct or indirect 

alteration that appreciably diminishes 

the value of critical habitat for both the 

survival and recovery of a listed species. 

Such alterations include, but are not 

limited to, alterations adversely 

modifying any of those physical or 

biological features that were the basis 

for determining the habitat to be 

critical.’’ However, recent decisions by 

the 5th and 9th Circuit Court of Appeals 

have invalidated this definition (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir 2001)), and we do not 

rely on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

the 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. This is a procedural 

requirement only. However, once a 

proposed species becomes listed, or 

proposed critical habitat is designated 

as final, the full prohibitions of section 

7(a)(2) apply to any Federal action. The 

primary utility of such conference 

procedures is to maximize the 

opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action because of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report, while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion 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)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

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. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that are likely to adversely affect listed 

species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

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 jeopardy to the listed 

species or 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 a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected 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 with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat or 

adversely modify or destroy proposed 

critical habitat. 

Federal activities that may affect the 

San Bernardino kangaroo rat or its 

designated critical habitat will require 

section 7 consultation under the Act. 

Activities on State, Tribal, local, or 

private lands requiring a Federal permit 

(such as a permit from the ACOE under 

section 404 of the Clean Water Act or a 

permit under section 10(a)(1)(B) of the 

Act from the Service) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) will 

also be subject to the section 7 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local, or private lands that are not 


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federally funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to the San 

Bernardino Kangaroo Rat and Its 

Critical Habitat 

Jeopardy Standard 

The Service has applied an analytical 

framework for San Bernardino kangaroo 

rat jeopardy analyses, which relies 

heavily on the importance of core area 

populations to the survival and recovery 

of the subspecies. This section 7(a)(2) 

analysis is focused not only on these 

populations but also on the habitat 

conditions necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of the San Bernardino kangaroo 

rat in a qualitative fashion without 

making distinctions between what is 

necessary for survival and what is 

necessary for recovery. Generally, if a 

proposed Federal action is incompatible 

with the viability of the affected core 

area population(s), inclusive of 

associated habitat conditions, a jeopardy 

finding is warranted because of the 

relationship of each core area 

population to the survival and recovery 

of the species as a whole. 

Adverse Modification Standard 

For the reasons described in the 

Director’s December 9, 2004 

memorandum, the key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. Generally, the conservation role 

of San Bernardino kangaroo rat critical 

habitat units is to support viable core 

area populations. 

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 may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for the San Bernardino kangaroo 

rat is appreciably reduced. Activities 

that, when carried out, funded, or 

authorized by a Federal agency, may 

affect critical habitat and therefore 

should result in consultation for the San 

Bernardino kangaroo rat include, but are 

not limited to: 

(1) Actions that would result in loss 

or fragmentation of suitable habitat. 

Such activities could include, but are 

not limited to: Urban and industrial 

development; sand and gravel mining; 

off-road activity; and, groundwater 

recharge operations. These activities 

could eliminate or reduce habitat 

necessary for the growth and 

reproduction of the San Bernardino 

kangaroo rat. Resulting fragmentation 

could isolate populations, increasing 

risk of stochastic extinction and 

decreasing movement between 

remaining patches of suitable habitat. 

(2) Actions that would alter natural 

hydrological and geomorphological 

processes necessary to maintain alluvial 

sage scrub habitat. Such activities could 

include, but are not limited to: Channel 

alteration; flood control operations; and 

construction of flood control structures 

such as dams, levees, and detention 

basins. These activities could eliminate 

or reduce preferred habitat conditions 

for the growth and reproduction of the 

San Bernardino kangaroo rat. Periodic 

high flows and flood events provide 

sediment scour, sediment deposition, 

and thinning of vegetation which 

maintains alluvial sage scrub habitat. 

(3) Actions that would appreciably 

decrease habitat value or quality 

through indirect and edge effects. Such 

activities could include, but are not 

limited to: Urban, industrial, and 

agricultural development; and 

construction of roads and railways. 

These activities could have indirect 

effects that reduce preferred habitat 

conditions and could lead to increases 

in human activity, increased light levels 

during nighttime foraging, increased 

predation by domestic and feral animals 

associated with residential 

development, invasion of exotic plants, 

and otherwise eliminate or reduce 

preferred habitat conditions for the San 

Bernardino kangaroo rat. Measures to 

minimize the impacts of these activities 

to the species and its habitat could 

include the installation of fencing to 

decrease predation by domestic and 

feral animals, placement of lighting 

structures (e.g. street lights) such that 

the light is directed away from habitat, 

and the installation of best management 

practices to reduce the amount of water 

entering habitat due to sheet flow. 

We consider all of the units proposed 

as revised critical habitat, as well as 

those that have been proposed for 

exclusion, to be within the geographical 

range of the subspecies occupied at the 

time of listing, and to contain features 

essential to the conservation of the San 

Bernardino kangaroo rat. Federal 

agencies already consult with us on 

activities in areas currently occupied by 

the San Bernardino kangaroo rat, or if 

the subspecies may be affected by the 

action, to ensure that their actions do 

not jeopardize the continued existence 

of the San Bernardino kangaroo rat. 

Application of 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. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary is afforded broad discretion 

regarding which factor(s) to use and 

how much weight to give to any factor. 

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

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we have considered. In 

addition, the Service is conducting an 

economic analysis of the impacts of the 

proposed revised critical habitat 

designation and related factors, which 

will be available for public review and 

comment. Based on public comment on 

that document, the proposed revised 

designation itself, and the information 

in the final economic analysis, 

additional areas beyond those identified 

in this assessment may be excluded 

from critical habitat by the Secretary 

under the provisions of section 4(b)(2) 

of the Act. This is provided for in the 

Act and in our implementing 

regulations at 50 CFR 424.19. 


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Benefits of Designating Critical Habitat 

Educational Benefits 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for the San Bernardino kangaroo 

rat. In general, the educational benefit of 

a critical habitat designation always 

exists, although in some cases it may be 

redundant with other educational 

effects. For example, HCPs have 

significant public input and may largely 

duplicate the educational benefit of a 

critical habitat designation. This benefit 

is closely related to a second, more 

indirect benefit: that designation of 

critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are 

proposing in this rule because these 

areas are included in this proposed rule 

as having habitat containing the features 

essential to the conservation of the 

subspecies. Consequently, we believe 

that the informational benefits are 

already provided, even though these 

areas may not be designated as critical 

habitat. Additionally, the purpose 

normally served by the designation, that 

of informing State agencies and local 

governments about areas that would 

benefit from protection and 

enhancement of habitat for the San 

Bernardino kangaroo rat, is already well 

established among State and local 

governments, and Federal agencies in 

those areas that we are proposing to 

exclude from revised critical habitat in 

this rule on the basis of other existing 

habitat management protections. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Recovery Benefits 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species which may 

require special management 

considerations or protection. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that the habitat that is 

identified, if managed, could provide for 

the survival and recovery of the species. 

Furthermore, once critical habitat has 

been designated, Federal agencies must 

consult with the Service under section 

7(a)(2) of the Act to ensure that their 

actions will not adversely modify 

designated critical habitat or jeopardize 

the continued existence of the species. 

As noted in the Ninth Circuit’s Gifford 

Pinchot decision, the Court ruled that 

the jeopardy and adverse modification 

standards are distinct, and that adverse 

modification evaluations require 

consideration of impacts to the recovery 

of species. Thus, through the section 

7(a)(2) consultation process, critical 

habitat designations provide recovery 

benefits to species by ensuring that 

Federal actions will not destroy or 

adversely modify designated critical 

habitat. 

The identification of those lands 

which are necessary for the 

conservation of the species and can, if 

managed, provide for the recovery of a 

species is beneficial. The process of 

proposing and finalizing a critical 

habitat rule provides the Service with 

the opportunity to determine lands 

essential for conservation as well as 

identify the primary constituent 

elements or features essential for 

conservation on those lands. The 

designation process includes peer 

review and public comment on the 

identified features and lands. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified lands, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

However, the designation of critical 

habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and/or adverse modification 

of its critical habitat, but not per se to 

manage remaining lands or institute 

recovery actions on remaining lands. 

Conversely, management plans institute 

proactive actions over the lands they 

encompass and are put in place to 

remove or reduce known threats to a 

species or its habitat and therefore 

implement recovery actions. We believe 

that the conservation of a species and/ 

or its habitat that could be achieved 

through the designation of critical 

habitat, in some cases, is less than the 

conservation that could be achieved 

through the implementation of a 

management plan, which includes 

species specific provisions and 

considers enhancement or recovery of 

listed species as the management 

standard over the same lands. 

Consequently, implementation of any 

HCP or management plan that considers 

enhancement or recovery as the 

management standard will often provide 

as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995), 

and at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (90 to 100 percent of their known 

occurrences restricted to Federal lands) 

and that 50 percent of federally listed 

species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-Federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-Federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Department of the 

Interior’s Cooperative Conservation 

philosophy. Conservation agreements 

with non-Federal landowners (HCPs, 

safe harbor agreements, other 

conservation agreements, easements, 

and State and local regulations) enhance 

species conservation by extending 

species protections beyond those 


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available through section 7 

consultations. In the past decade, we 

have encouraged non-Federal 

landowners to enter into conservation 

agreements, based on a view that we can 

achieve greater species conservation on 

non-Federal land through such 

partnerships than we can through 

regulatory methods (61 FR 63854; 

December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). According 

to some researchers, the designation of 

critical habitat on private lands 

significantly reduces the likelihood that 

landowners will support and carry out 

conservation actions (Main et al. 1999, 

Bean 2002, Brook et al. 2003). The 

magnitude of this negative outcome is 

greatly amplified in situations where 

active management measures (such as 

reintroduction, fire management, and 

control of invasive species) are 

necessary for species conservation (Bean 

2002). The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation 

than critical habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

Thus the benefits of excluding areas that 

are covered by partnerships or voluntary 

conservation efforts can often be high. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation under section 7(a)(2) of the 

Act to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 

7(a)(2) of the Act is triggered, the 

process may conclude informally when 

the Service concurs in writing that the 

proposed Federal action is not likely to 

adversely affect the listed species or its 

critical habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to PCEs, but it would not contain 

any mandatory reasonable and prudent 

measures or terms and conditions. 

Mandatory measures and terms and 

conditions to implement such measures 

are only specified when the proposed 

action would result in the incidental 

take of a listed animal species. 

Reasonable and prudent alternatives to 

the proposed Federal action would only 

be suggested when the biological 

opinion results in a jeopardy or adverse 

modification conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service conflated 

the jeopardy standard with the standard 

for destruction or adverse modification 

of critical habitat when evaluating 

Federal actions that affect currentlyoccupied critical habitat. The Court 

ruled that the two standards are distinct 

and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, as 

discussed above, we believe the 

conservation achieved through 

implementing habitat conservation 

plans (HCPs) or other habitat 

management plans is typically greater 

than would be achieved through 

multiple site-by-site, project-by-project, 

section 7(a)(2) consultations involving 

consideration of critical habitat. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

From Critical Habitat 

The benefits of excluding lands with 

HCPs or other approved management 

plans from critical habitat designation 

include relieving landowners, 

communities, and counties of any 

additional regulatory burden that might 

be imposed by a critical habitat 

designation. Most HCPs and other 

conservation plans take many years to 

develop and, upon completion, are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. Many conservation plans 

also provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine these conservation efforts 

and partnerships designed to 

proactively protect species to ensure 

that listing under the Act will not be 

necessary. Designation of critical habitat 

within the boundaries of management 

plans that provide conservation 

measures for a species could be viewed 

as a disincentive to those entities 

currently developing these plans or 

contemplating them in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species are 

affected. Addition of a new regulatory 

requirement would remove a significant 

incentive for undertaking the time and 

expense of management planning. In 

fact, designating critical habitat in areas 

covered by a pending HCP or 


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conservation plan could result in the 

loss of some species’ benefits if 

participants abandon the planning 

process, in part because of the strength 

of the perceived additional regulatory 

compliance that such designation would 

entail. The time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

for them to be perceived as additional 

Federal regulatory burden sufficient to 

discourage continued participation in 

plans targeting listed species’

conservation. 

A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability to seek new 

partnerships with future plan 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within approved management plan 

areas are designated as critical habitat, 

it would likely have a negative effect on 

our ability to establish new partnerships 

to develop these plans, particularly 

plans that address landscape-level 

conservation of species and habitats. By 

preemptively excluding these lands, we 

preserve our current partnerships and 

encourage additional conservation 

actions in the future. 

Furthermore, an HCP or Natural 

Community Conservation Planning 

(NCCP) HCP application must itself be 

consulted upon. Such a consultation 

would review the effects of all activities 

covered by the HCP which might 

adversely impact the species under a 

jeopardy standard, including possibly 

significant habitat modification (see 

definition of ‘‘harm’’ at 50 CFR 17.3), 

even without the critical habitat 

designation. In addition, Federal actions 

not covered by the HCP in areas 

occupied by listed species would still 

require consultation under section 

7(a)(2) of the Act and would be 

reviewed for possibly significant habitat 

modification in accordance with the 

definition of harm referenced above. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

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

Act 

After consideration under section 

4(b)(2) of the Act, we are proposing to 

exclude the following areas of habitat 

from final revised critical habitat for the 

San Bernardino kangaroo rat: lands 

covered under the Woolly-Star Preserve 

Area Management Plans; the Former 

Norton Air Force Base CMP; the Cajon 

Creek Habitat Conservation 

Management Area HEMP; and Western 

Riverside MSHCP. We believe that these 

lands’ value for conservation has been 

addressed by existing protective actions 

and are appropriate for exclusion under 

the provisions of section 4(b)(2). We 

specifically solicit comment, however, 

on the proposed exclusion of these 

areas. A detailed analysis of our 

exclusion of these lands under section 

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

paragraphs that follow. 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands and 

Approved Management Plans —

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

Act 

We consider a current plan to provide 

adequate management or protection if it 

meets three criteria: (1) The plan is 

complete and provides the same or 

better level of protection from adverse 

modification or destruction than that 

provided through a consultation under 

section 7(a)(2) of the Act; (2) there is a 

reasonable expectation that the 

conservation management strategies and 

actions will be implemented based on 

past practices, written guidance, or 

regulations; and (3) the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. We 

believe that the plans described below 

fulfill these criteria, and we are 

considering the exclusion of non-federal 

lands covered by these plans that 

provide for the conservation of the San 

Bernardino kangaroo rat. We are 

requesting comments on the benefit to 

the San Bernardino kangaroo rat from 

conservation measures established by 

the following plans: the Woolly-Star 

Preserve Area Management Plans; the 

Former Norton Air Force Base CMP; the 

Cajon Creek Habitat Conservation 

Management Area HEMP; and the 

Western Riverside MSHCP. 

Woolly-Star Preserve Area 

Management Plans 

Approximately 742 ac (300 ha) of the 

765 ac (310 ha) Wooly-star Preserve 

Area (WSPA) is within critical habitat 

Unit 1. The WSPA is within the 100 to 

500-year floodplain of the upper Santa 

Ana River immediately downstream 

from the Seven Oaks Dam. The WSPA 

was established in 1988 by the Army 

Corps of Engineers (ACOE) as part of the 

conservation measures developed 

during consultation to address impacts 

to the federally endangered Eriastrum 

densifolium ssp. sanctorum (Santa Ana 

River woolly-star) as a result of 

construction of the Seven Oaks Dam 

(Service File: 1–6–88–F–6, June 22, 

1989). 

A management plan for Eriastrum 

densifolium ssp. sanctorum (which 

requires alluvial scrub habitat similar to 

that preferred by the San Bernardino 

kangaroo rat) was prepared in 

coordination with the Service and 

California Department of Fish and Game 

(CDFG) (Chambers Group, Inc. 1993). 

The 1993 Management Plan for the 

Santa Ana River Woolly-Star was 

created to be implemented on the 765- 

ac (310-ha) WSPA (Chambers Group, 

Inc. 1993). This plant inhabits early and 

intermediate successional stages of 

alluvial fan scrub habitat, which are the 

preferred habitat areas for the San 

Bernardino kangaroo rat. The overall 

strategy for the management plan on 

WSPA lands is to avoid physical 

disturbances to alluvial habitat and to 

allow for disturbances by natural 

processes (Chambers Group, Inc. 1993, 

p. 3–1). The 1993 Management Plan for 

E. d. ssp. sanctorum includes a 

description of management tasks that 

benefit habitat for E. d. ssp. sanctorum. 

Though not addressed directly by the 

plan, these management tasks benefit 

the San Bernardino kangaroo rat as well. 

These management tasks include: 

identification and implementation of 

habitat renewal methods; control of 

exotic species; reduction of off-highway 

vehicle activity, trash dumping, and 

other negative human impacts; and a 

public awareness program (Chambers 

Group, Inc. 1993, p. 3–2). Lands within 

the WSPA were placed under a 

conservation easement that is jointly 

held by the local sponsors (i.e., the flood 

control districts of San Bernardino, 

Riverside and Orange counties) (Lovell 

2007). Since the inception of the 1993 

Management Plan for the Santa Ana 

River Woolly-Star, on-going biological 

studies have been conducted on the 

WSPA to increase understanding of E. d. 

ssp. Sanctorum. 

The ACOE has committed to the 

development and implementation of a 

Multi-species Habitat Management Plan 

(MSHMP) for the WSPA that will 

update the 1993 plan and include 

habitat management for the San 

Bernardino kangaroo rat and the 

federally endangered slender-horned 

spineflower (Dodecahema leptoceras) as 

part of the conservation measures they 

proposed during consultation regarding 

the effects of operation and maintenance 

of the dam on the E. d. ssp. sanctorum, 

D. leptoceras. The goals of the draft 

MSHMP specific to the San Bernardino 

kangaroo rat include: (1) The 

maintenance and/or expansion of the 

current species distribution within the 


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WSPA; (2) optimization of habitat 

conditions; and, (3) maintenance and/or 

enhancement of populations of San 

Bernardino kangaroo rat within the 

WSPA. General objectives in support of 

the San Bernardino kangaroo rat 

management goals are to: (1) Monitor 

the San Bernardino kangaroo rat and 

relevant habitat elements according to 

standardized protocols; (2) conduct 

studies to fill gaps in knowledge related 

to species biology and habitat; (3) 

measure San Bernardino kangaroo rat 

response to experimental treatments and 

potential management measures; (4) 

establish priority of areas for 

implementation of habitat management 

to maintain and/or enhance suitability 

for the species; and (5) refine 

management measures over time using 

an adaptive management framework. 

Information gathered through the 

implementation of the MSHMP will be 

used to support science-based 

management decisions and evaluation 

of management success. Various 

potential management alternatives may 

be implemented such as protective 

management, disturbance control, 

nonnative grass control, habitat 

enhancement/restoration, and habitat 

renewal. The management of this area is 

anticipated to help to maintain and 

protect alluvial wash and upland habitat 

(PCEs 1, 2, and 3) required by the San 

Bernardino kangaroo rat. This MSHMP 

is currently in draft form and will 

replace the 1993 management plan. The 

MSHMP will be reviewed by the 

resource agencies for their concurrence 

prior to implementation (Service 2002b, 

p. 8). The ACOE is responsible for the 

development and implementation of the 

MSHMP. 

Protocol surveys (live-trapping) 

conducted during 2005 and 2006 

confirm that portions of the WSPA are 

currently occupied by the San 

Bernardino kangaroo rat (Service 

unpublished GIS data), and habitat 

surveys suggest that much of this area 

is likely to support the San Bernardino 

kangaroo rat (MEC Analytical Systems, 

Inc. 2000, fig. 24). Ongoing surveys and 

habitat management to benefit the San 

Bernardino kangaroo rat are anticipated 

as part of the MSHCP currently in 

development. The Service is working 

with the ACOE and their biological 

consultants on baseline species surveys, 

trials of habitat manipulations and 

management practices followed by 

trapping surveys to show both density 

and distribution of the San Bernardino 

kangaroo rat within the WSPA. These 

actions are being undertaken as part of 

the development of a final MSHMP. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified 

habitat loss, destruction, degradation, 

and fragmentation due to sand and 

gravel mining operations, flood control 

projects, and urban development as 

primary threats to the San Bernardino 

kangaroo rat. As described above, the 

WSPA Management Plans provide 

enhancement of the habitat by removing 

or reducing threats to this subspecies 

and the PCEs. The WSPA Management 

Plans preserve habitat that supports 

identified core populations of this 

subspecies and therefore provide for 

recovery. 

Benefits of Inclusion 

We believe there would be minimal 

benefit in retaining this area as critical 

habitat for the San Bernardino kangaroo 

rat in the Woolly-Star Preserve Area 

within Unit 1 because this habitat 

within the Santa Ana River wash is 

already conserved and is being managed 

for the benefit of the species as 

explained above. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act which directs Federal 

agencies to ensure that actions they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of a threatened or endangered 

species, and do not result in the 

destruction or adverse modification of 

critical habitat. However, the inclusion 

of these 742 ac (300 ha) WSPA lands in 

the revised critical habitat designation 

for the San Bernardino kangaroo rat 

would be unlikely to provide any 

additional protection for the species 

since the protection provided would be 

a limitation on the adverse effects that 

occur, as opposed to a requirement to 

provide a conservation benefit. The 

conservation measures for the San 

Bernardino kangaroo rat included in the 

WSPA Management Plans are 

affirmative obligations that provide a 

conservation benefit to the subspecies. 

We anticipate that these conservation 

measures will exceed any conservation 

value provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public 

to encourage conservation efforts to 

benefit the San Bernardino kangaroo rat 

and its habitat. However, by publication 

of this proposed rule, we are educating 

the public of the location of core 

populations and areas most important 

for the recovery of this subspecies. 

Furthermore, as discussed above, the 

importance of protecting the biological 

resource values of these lands, 

including the San Bernardino kangaroo 

rat, has already been clearly and 

effectively communicated to Federal, 

State, and local agencies and other 

interested organizations and members of 

the public through the current critical 

habitat designation, this proposed rule, 

and the WSPA Management Plans’

approval and implementation process. 

In short, we expect the Woolly-Star 

Preserve Area Management Plans to 

provide protection to and management 

of the San Bernardino kangaroo rat and 

its PCEs within areas considered 

essential for conservation of the 

subspecies on WSPA lands in the Santa 

Ana River wash area. We expect the 

WSPA Management Plans to provide a 

greater level of conservation for the San 

Bernardino kangaroo rat on lands in this 

area than retaining the lands as critical 

habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the WSPA Management Plans 

commit the local sponsors of the WSPA 

to manage these lands for the benefit of 

the San Bernardino kangaroo rat and 

other covered species. These 

commitments go well beyond a simple 

requirement to avoid adverse 

modification of critical habitat; they 

involve conservation and management 

of land within Unit 1 located in the 

WSPA (Service 2004, p. 296). Excluding 

these 742 ac (300 ha) of lands from 

critical habitat designation would help 

strengthen partnerships and recognize 

the ACOE and local sponsors’

commitment under the 1993 

Management Plan for Eriastrum 

densifolium ssp. sanctorum and the 

MSHMP to manage WSPA lands for the 

San Bernardino kangaroo rat consistent 

with the conservation goals and 

objectives of these plans. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion of approximately 

742 ac (300 ha) of lands within the 

WSPA covered under the 1993 

Management Plan for Eriastrum 

densifolium ssp. sanctorum and to be 

covered under the MSHMP. We have 

determined that the benefits of 

excluding these lands in Unit 1 

outweigh the benefits of retaining these 

lands as critical habitat. The PCEs 

required by the San Bernardino 

kangaroo rat will benefit from the 

implementation of conservation 

measures outlined in these plans. In 

summary, these conservation measures 

include avoidance and minimization of 


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physical disturbances to alluvial habitat 

and allowance for disturbances by 

natural processes within the WSPA 

lands, which are under existing 

conservation easements that benefit the 

San Bernardino kangaroo rat. This will 

benefit the San Bernardino kangaroo rat 

by preserving soil, vegetation, and 

upland habitat (PCEs 1, 2, and 3) within 

the WSPA. Such specific conservation 

actions and management for the San 

Bernardino kangaroo rat and its PCEs 

exceed any conservation value provided 

as a result of regulatory protections that 

have been or may be afforded through 

critical habitat designation. 

The exclusion of these lands from 

critical habitat would also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents during dedication of the 

WSPA and development of the 

management plans. The benefits of 

excluding these lands from revised 

critical habitat outweigh the minimal 

benefits of retaining these lands as 

critical habitat, including the 

educational benefits of critical habitat 

designation through informing the 

public of areas important for the longterm conservation of the San Bernardino 

kangaroo rat. Such educational benefits 

can still be accomplished through 

materials provided on our Web site. 

Further, many educational benefits will 

be achieved through this proposal’s 

notice and public comment period, 

which will occur whether or not this 

particular area is designated. 

Exclusion Will Not Result in Extinction 

of the Subspecies 

We do not believe that the exclusion 

of 742 ac (300 ha) from the final revised 

designation of critical habitat for the 

San Bernardino kangaroo rat would 

result in the extinction of the subspecies 

because the WSPA Management Plans 

provide for the conservation of the 

subspecies and its PCEs on occupied 

areas in Unit 1 (Santa Ana River). The 

jeopardy standard of section 7 of the Act 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the subspecies will not 

go extinct. The protections afforded to 

the San Bernardino kangaroo rat under 

the jeopardy standard will remain in 

place for the areas proposed for 

exclusion from revised critical habitat. 

Former Norton Air Force Base 

Conservation Management Plan (CMP) 

The Norton Air Force Base was 

formally transferred to private 

ownership in 2003. Prior to closure, the 

U.S. Air Force completed installation 

remediation which included the closure 

of an area known as ‘‘Landfill 2.’’ In 

accordance with mitigation measures 

outlined in our November 26, 1996, 

biological opinion (1–6–96–F–10) on the 

closure of Landfill 2, the U.S. Air Force 

developed a management plan (the 

Former Norton Air Force Base 

Conservation Management Plan (CMP), 

completed in 2002) for approximately 

268 ac (109 ha) of habitat occupied by 

the San Bernardino kangaroo rat in the 

Santa Ana River wash area (Unit 1). 

Approximately 54 ac (22 ha) in two 

parcels were designated Core 

Management Areas (CMA–1 and CMA–

2), and 214 ac (87 ha) make up an Open 

Space Management Area (OSMA). 

Under the CMP completed in March 

2002, these areas are managed 

specifically for the San Bernardino 

kangaroo rat and E. d. ssp. sanctorum 

(U.S. Air Force 2002, pp. 1–4). 

CMA–1 (approximately 29 ac (12 ha)) 

and CMA–2 (approximately 25 ac (10 

ha)) are located along the southern edge 

of the OSMA. CMA–1 includes both 

flood plain habitat on the ‘wet’ side of 

an existing flood control levee and 

fenced upland habitat behind the levee 

along the northern edge of the Santa 

Ana River. CMA–2 is located entirely 

within the Santa Ana River floodplain. 

Approximately 13 ac (5 ha) of CMA–2 

are owned by the Inland Valley 

Development Agency (IVDA) and the 

remainder of the CMA lands and the 

OSMA are owned by the San 

Bernardino International Airport (SBIA) 

Authority. These areas provide 

important upland habitat that supports 

individual San Bernardino kangaroo rats 

necessary to re-populate the active 

floodplain following large-scale floods 

that scour out lower-elevation terrace 

habitat adjacent to the active river 

channel (Service 2003b, p. 18) (PCE 3). 

Lands within these CMAs are to be 

permanently protected by conservation 

easements (U.S. Air Force 2002). The 

CMAs are adjacent to the approximately 

214–ac (87 ha) OSMA that surrounds 

the existing runway of the SBIA. 

The OSMA is an aircraft over-run area 

and is managed in accordance to 

Federal Aviation Administration (FAA) 

guidelines for such lands. However, the 

SBIA Authority manages the OSMA in 

such a way as to minimize adverse 

impacts to the San Bernardino kangaroo 

rat as described in the CMP and the 

biological opinion for formal 

consultation on base closure (FWS–SB–

1723.10, August 5, 2003). The 214 ac (87 

ha) OSMA is in the immediate vicinity 

of the eastern runway, and safety 

regulations require that most of this 

land remain undeveloped (U.S. Air 

Force 2002, p. 5–5). The OSMA is 

protected from flooding by levees, but 

routine mowing required by the Federal 

Aviation Administration (FAA) keeps 

vegetation from becoming dense and 

senescent, which creates open habitat 

that may be suitable for San Bernardino 

kangaroo rats (Service 2003b, p. 17). No 

discing or other ground disturbance is 

allowed within the OSMA area and 

implementation of the prescribed 

mowing regime with the equipment 

currently used is unlikely to result in 

crushing of San Bernardino kangaroo rat 

burrows (Service 2003b, p. 18). 

Upon closure of the Former Norton 

Air Force Base in 2003, the SBIA 

Authority and the Inland Valley 

Development Agency assumed 

responsibility for the management of the 

CMAs pursuant to the CMP (Service 

2003b, p. 6). Management practices 

currently conducted on SBIA and IVDA 

property are described in the CMP and 

include: (1) Subspecies monitoring 

every 2 to 3 years following the Serviceapproved protocol; (2) vegetation 

surveys and adaptive control of invasive 

weedy plants; (3) trash removal; and (4) 

installation of protective signage and 

maintenance of barriers to reduce and 

prevent trespassing (U.S. Air Force 

2002, pp. 5–11). In accordance with the 

CMP, the SBIA Authority provides us 

with annual reports regarding the status 

of the CMP and OSMA (documents on 

file in the CFWO). The SBIA Authority 

has routinely removed exotic or weedy 

plant species within the CMAs, 

controlled coyote access to fenced 

portions of CMA–1 and the OSMA 

which reduces predation on the San 

Bernardino kangaroo rat in these areas, 

removed all dumped trash as soon as 

possible in accordance with the CMP 

and FAA guidelines, and promptly 

addressed any trespass issues as needed 

(e.g., fences and signage repaired). 

Human activities incompatible with the 

purpose of the CMAs are restricted (U.S. 

Air Force 2002, pp. 5–12). These 

management actions and the eventual 

placement of a conservation easement 

on the CMA parcels are anticipated to 

ensure that habitat containing the PCEs 

for the San Bernardino kangaroo rat is 

conserved within the CMAs and the 

OSMA through the protection and 

management of alluvial washes and 

upland habitat (PCEs 1, 2, and 3) 

required by the subspecies. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified 

habitat loss, destruction, degradation, 

and fragmentation due to sand and 

gravel mining operations, flood control 

projects, and urban development as 

primary threats to the San Bernardino 

kangaroo rat. As described above, the 

Former Norton Air Force Base CMP 

provides enhancement of the habitat by 


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removing or reducing threats to this 

subspecies and the PCEs. The CMP 

preserves habitat that supports 

identified core populations of this 

subspecies and therefore provides for 

recovery. 

Benefits of Inclusion 

We believe there would be minimal 

benefit in retaining this area as critical 

habitat for the San Bernardino kangaroo 

rat on the 268 ac (109 ha) of critical 

habitat lands on the San Bernardino 

International Airport. These lands 

within Unit 1 (Santa Ana River) are 

already conserved and managed for the 

benefit of the subspecies as explained 

above. The primary benefit of including 

an area within a critical habitat 

designation is the protection provided 

by section 7(a)(2) of the Act, which 

directs Federal agencies to ensure that 

actions they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of a threatened or 

endangered species, and do not result in 

the destruction or adverse modification 

of critical habitat. However, the 

inclusion of these 268 ac (109 ha) of 

CMA and OSMA lands in the revised 

critical habitat designation for the San 

Bernardino kangaroo rat would be 

unlikely to provide any additional 

protection for the species since the 

protection provided would be a 

limitation on the adverse effects that 

occur, as opposed to a requirement to 

provide a conservation benefit. The 

conservation measures for the San 

Bernardino kangaroo rat included in the 

Former Norton Air Force Base CMP are 

affirmative obligations that provide a 

conservation benefit to the species. We 

anticipate that these conservation 

measures will exceed any conservation 

value provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public, 

as a means to encourage conservation 

efforts to benefit the San Bernardino 

kangaroo rat and its habitat. However, 

by publication of this proposed rule, we 

are educating the public of the location 

of core populations and areas most 

important for the recovery of this 

subspecies. Furthermore, as discussed 

above, the importance of protecting the 

biological resource values of these 

lands, including the San Bernardino 

kangaroo rat, has already been clearly 

and effectively communicated to 

Federal, State, and local agencies, as 

well as other interested organizations 

and members of the public through the 

current designation, this proposed rule, 

and the CMP’s approval and 

implementation process. 

In short, we expect the Former Norton 

Air Force Base CMP to provide 

protection to and management of the 

San Bernardino kangaroo rat and its 

PCEs within areas considered essential 

for conservation of the subspecies on 

private lands in the Santa Ana River 

area. We expect the CMP to provide a 

greater level of conservation for the San 

Bernardino kangaroo rat on private 

lands in this area than retaining the 

lands as critical habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the Former Norton Air Force Base 

CMP commits the owners of the land 

(currently the SBIA Authority) to 

manage 268 ac (109 ha) of land for the 

benefit of the San Bernardino kangaroo 

rat and other covered species. These 

commitments go well beyond a simple 

requirement to avoid adverse 

modification of critical habitat; they 

involve protection, management, and 

enhancement of the identified land 

within Unit 1. Excluding these 268 ac 

(109 ha) of lands from critical habitat 

designation would help strengthen 

partnerships and recognize the former 

Norton Air Force Base and SBIA 

Authority’s commitment under the CMP 

to manage CMA and OSMA lands 

consistent with the conservation goals 

and objectives of the CMP as described 

above. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion of approximately 

268 ac (109 ha) of lands within the 

Former Norton Air Force Base CMP area 

from the revised designation of critical 

habitat. We have determined that the 

benefits of excluding these lands in Unit 

1 outweigh the benefits of retaining 

these lands as critical habitat. The PCEs 

required by the San Bernardino 

kangaroo rat will benefit from the 

implementation of conservation 

measures outlined in the CMP. In 

summary, these conservation measures 

include: the establishment of 

approximately 54 ac (23 ha) of CMA 

lands into a permanent conservation 

easement; San Bernardino kangaroo rat 

monitoring; control of invasive plant 

species; trash removal; installation of 

protective signage; and exclusion of 

harmful human activities within the 

CMAs. Additionally, conservation 

measures within the 214 ac (87 ha) 

OMSA include implementation of a 

mowing regime to thin vegetation and 

prevention of soil disturbances. Such 

specific conservation actions and 

management for the San Bernardino 

kangaroo rat and its PCEs exceed any 

conservation value provided as a result 

of regulatory protections that have been 

or may be afforded through critical 

habitat designation. 

The exclusion of these lands from 

critical habitat would also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents during the closure of 

Landfill 2 on Norton Air Force Base and 

development of the CMP. The benefits 

of excluding these lands from revised 

critical habitat outweigh the minimal 

benefits of retaining these lands as 

critical habitat, including the 

educational benefits of critical habitat 

designation through informing the 

public of areas important for the longterm conservation of the San Bernardino 

kangaroo rat. Such educational benefits 

can still be accomplished through 

materials provided on our Web site. 

Further, many educational benefits will 

be achieved through this proposal’s 

notice and public comment period, 

which will occur whether or not this 

particular area is designated. 

Exclusion Will Not Result in Extinction 

of the Subspecies 

We do not believe that the exclusion 

of 268 ac (109 ha) from the final revised 

designation of critical habitat for the 

San Bernardino kangaroo rat would 

result in the extinction of the subspecies 

because the Former Norton Air Force 

Base CMP provides for the conservation 

of this subspecies and its PCEs on 

occupied areas in Unit 1 (Santa Ana 

River). The jeopardy standard of section 

7 of the Act and routine implementation 

of conservation measures through the 

section 7 process also provide 

assurances that the subspecies will not 

go extinct. The protections afforded to 

the San Bernardino kangaroo rat under 

the jeopardy standard will remain in 

place for the areas proposed for 

exclusion from revised critical habitat. 

Cajon Creek Habitat Conservation 

Management Area, Habitat 

Enhancement and Management Plan 

(HEMP) 

The Cajon Creek Habitat Conservation 

Management Area (HCMA), managed by 

Vulcan Materials Company (formerly 

CalMat Co.), Western Division, was 

created in 1996 to offset approximately 

2,270 ac (920 ha) of sand and gravel 

mining proposed within and adjacent to 

Cajon Creek. The HCMA includes 

approximately 1,378 ac (558 ha) of 

lands, which are managed to protect or 

restore alluvial scrub habitat within the 


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100-year flood plain to help conserve 

populations of 24 species associated 

with alluvial fan scrub including the 

San Bernardino kangaroo rat. Pioneer, 

intermediate, and mature phase alluvial 

scrub habitats can be found in the Cajon 

Creek HCMA, along with all three of the 

PCEs required by the San Bernardino 

kangaroo rat (M. Blane and Associates 

1996, p. 11). 

Of these HCMA lands, 768 ac (311 ha) 

were set aside to offset impacts from the 

proposed mining to alluvial fan sage 

scrub habitat and associated listed 

species including the San Bernardino 

kangaroo rat (Service 1998c, p. 2) and 

the 610-acre Cajon Creek Conservation 

Bank was established. These lands will 

be conserved and managed in perpetuity 

for alluvial fan scrub habitat and 

associated listed species (including the 

San Bernardino kangaroo rat) pursuant 

to the Habitat Enhancement and 

Management Plan (HEMP) completed in 

July 1996, and the associated 

Memorandum of Understanding and 

Implementation Agreement for the 

Cajon Creek Habitat Management Area 

(MOU) signed on October 21, 1996 

(Service 1998c, p. 2). The lands set aside 

to off-set mining impacts were placed 

under a permanent conservation 

easement. The approximately 610 ac 

(245 ha) Cajon Creek Conservation Bank 

was placed under a 10-year 

conservation easement on February 16, 

1998. The original intent of the Service, 

Corps and Vulcan Materials Company 

was to place those lands within the 

bank under permanent conservation 

easement once all credits had been sold. 

The MOU addressing the permanent 

conservation of the Cajon Creek 

Conservation Bank and the conservation 

easement were recently extended by 

Vulcan Materials until 2025 (Vulcan 

Materials Co. 2006, p. 1). More than half 

of the total credits available within the 

Cajon Creek Conservation Bank have 

been sold (M. Blane and Associates 

2006, p. 5). Those credits not purchased 

by the end of the term will be available 

for purchase by the resource agencies 

(i.e., USFWS and CDFG). 

The HEMP and MOU state that the 

Cajon Creek HCMA is made up of a 610- 

ac (245-ha) conservation bank and 768 

ac (311 ha) of additional conservation 

lands, totaling 1,378 ac (558 ha) (M. 

Blane and Associates 1996, p. 3–4; 

CalMat Co. 1996, p. 5). However, 

according to our GIS data based on 

information provided by Vulcan 

Materials, the footprint of the Cajon 

Creek HCMA is approximately 1,271 ac 

(514 ha). We are proposing to exclude 

these 1,271 ac (514 ha) from the final 

revised critical habitat designation 

based on benefits provided through 

conservation and management of these 

lands described in the HEMP and MOU. 

We may exclude the remaining 107 ac 

(43 ha) if we receive additional 

information during the public comment 

period on this proposal. 

Habitat protection and enhancement 

measures are explained in the HEMP 

(M. Blane and Associates 1996, p. 21). 

Habitat protection measures are used to 

minimize unauthorized human 

intrusion and impacts associated with 

such intrusion (M. Blane and Associates 

1996, p. 21). More specifically, 

protection measures involve restricted 

access to the Conservation Management 

Area to minimize off-road vehicle use, 

target shooting, trash dumping, and 

other activities that result in 

degradation of natural areas (M. Blane 

and Associates 1996, p. 25). Restrictive 

barriers and signage are placed along 

borders and near access points. Removal 

of unnecessary roads and subsequent 

revegetation of those roads will further 

discourage unauthorized access (M. 

Blane and Associates 1996, p. 28). 

Furthermore, trash existing on 

Conservation Management Area lands 

and adjacent lands within San 

Bernardino County Flood Control 

property will be removed as stated in 

the HEMP (M. Blane and Associates 

1996, p. 28). Habitat enhancement 

measures are intended to restore the 

biological integrity of degraded alluvial 

scrub habitat and associated plant and 

animal species (including the San 

Bernardino kangaroo rat) within the 

Conservation Management Area and to 

protect it from further degradation (M. 

Blane and Associates 1996, p. 21). 

Specifically, habitat enhancement 

includes weed control involving 

removal of exotic plants on 

Conservation Management Area lands 

and adjacent lands and alluvial scrub 

revegetation activities as described in 

the HEMP (M. Blane and Associates 

1996, p. 22). The above protection and 

enhancement measures ensure that 

alluvial fans, washes, and associated 

upland habitat (PCEs 1, 2, and 3) 

required by this subspecies are 

conserved. 

The Cajon Creek HCMA has been and 

continues to be managed in accordance 

with the HEMP and MOU by Vulcan 

Materials Company, who provides us 

with an annual report of management 

activities within the HCMA. Plan 

implementation has resulted in 

revegetation of previously mined areas, 

trash removal and overall decrease in 

trash dumping, placement of signage 

and barriers in areas vulnerable to 

unauthorized access, and successful 

invasive weed eradication (M. Blane 

and Associates 2006, p. 12). The 

continued implementation of the Cajon 

Creek HCMA HEMP will ensure the 

conservation of habitat for the San 

Bernardino kangaroo rat. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified 

habitat loss, destruction, degradation, 

and fragmentation due to sand and 

gravel mining operations, flood control 

projects, and urban development as 

primary threats to the San Bernardino 

kangaroo rat. As described above, the 

Cajon Creek Habitat Conservation 

Management Area HEMP provides 

enhancement of the habitat by removing 

or reducing threats to this subspecies 

and the PCEs. The HEMP preserves 

habitat that supports identified core 

populations of this subspecies and 

therefore provides for recovery. 

Benefits of Inclusion 

We believe there would be minimal 

benefit in retaining as critical habitat for 

the San Bernardino kangaroo rat lands 

within the 1,271 ac (514 ha) of the Cajon 

Creek HCMA, covered by the HEMP, in 

Unit 2 because this habitat within the 

Lytle/Cajon wash is already conserved 

and managed for the benefit of the 

subspecies as explained above. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act, which directs Federal 

agencies to ensure that actions they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of a threatened or endangered 

species, and do not result in the 

destruction or adverse modification of 

critical habitat. However, the inclusion 

of 1,271 ac (514 ha) of Cajon Creek 

HCMA lands in the revised critical 

habitat designation for the San 

Bernardino kangaroo rat would be 

unlikely to provide any additional 

protection for the subspecies since the 

protection provided would be a 

limitation on the adverse effects that 

occur, as opposed to a requirement to 

provide a conservation benefit. The 

conservation measures for the San 

Bernardino kangaroo rat included in 

HEMP are affirmative obligations that 

provide a conservation benefit to the 

subspecies. We anticipate that these 

conservation measures will exceed any 

conservation value provided as a result 

of regulatory protections that have been 

or may be afforded through critical 

habitat designation. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public, 

as a means to encourage conservation 

efforts to benefit the San Bernardino 


jlentini on PROD1PC65 with PROPOSALS2
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kangaroo rat and its habitat. However, 

by publication of this proposed rule, we 

are educating the public of the location 

of core populations and areas most 

important for the recovery of this 

subspecies. Furthermore, as discussed 

above, the importance of protecting the 

biological resource values of these 

lands, including the San Bernardino 

kangaroo rat, has already been clearly 

and effectively communicated to 

Federal, State, and local agencies, as 

well as other interested organizations 

and members of the public through the 

current designation, this proposed rule, 

and the HEMP’s approval and 

implementation process. 

In short, we expect the Cajon Creek 

HCMA HEMP to provide protection to 

and management of the San Bernardino 

kangaroo rat and its PCEs within areas 

considered essential for conservation of 

the subspecies on private lands in the 

Lytle/Cajon wash area. We expect the 

HEMP to provide a greater level of 

conservation for the San Bernardino 

kangaroo rat on private lands in this 

area than retaining these lands as 

critical habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the Cajon Creek Habitat 

Conservation Management Area HEMP 

commits Vulcan Materials Co. to 

manage the Conservation Management 

Area lands for the benefit of alluvial 

scrub habitat, the San Bernardino 

kangaroo rat, and other covered species. 

These commitments go well beyond a 

simple requirement to avoid adverse 

modification of critical habitat; they 

include protection, management, and 

enhancement of land within Unit 2 

located in the Conservation 

Management Area. Excluding these 

1,271 ac (514 ha) of lands from critical 

habitat designation would help 

strengthen partnerships and recognize 

the Vulcan Materials Co. commitment 

under the HEMP to manage 

Conservation Management Area lands 

consistent with the conservation goals 

and objectives of the HEMP. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion of approximately 

1,271 ac (514 ha) of Cajon Creek HCMA 

lands, covered under the HEMP, from 

the revised designation of critical 

habitat. We have determined that the 

benefits of excluding these lands in Unit 

2 outweigh the benefits of retaining 

these lands as critical habitat. The PCEs 

required by the San Bernardino 

kangaroo rat will benefit from the 

implementation of protection and 

enhancement measures outlined in the 

HEMP. In summary, these measures 

include restricted access, restrictive 

barriers and signage, trash removal, 

weed control, and revegetation of 

unnecessary roads and previously 

mined areas. These specific 

conservation actions and management 

for the San Bernardino kangaroo rat and 

its PCEs exceed any conservation value 

provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. 

The exclusion of these lands from 

critical habitat would also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents during creation of the Cajon 

Creek HCMA and development of the 

HEMP. The benefits of excluding these 

lands from revised critical habitat 

outweigh the minimal benefits of 

retaining these lands as critical habitat, 

including the educational benefits of 

critical habitat designation through 

informing the public of areas important 

for the long-term conservation of the 

San Bernardino kangaroo rat. Such 

educational benefits can still be 

accomplished through materials 

provided on our Web site. Further, 

many educational benefits will be 

achieved through this proposal’s notice 

and public comment period, which will 

occur whether or not this particular area 

is designated. 

Exclusion Will Not Result in Extinction 

of the Subspecies 

We do not believe that the exclusion 

of 1,271 ac (514 ha) from the final 

revised designation of critical habitat for 

the San Bernardino kangaroo rat would 

result in the extinction of the subspecies 

because the Cajon Creek Habitat 

Conservation Management Area HEMP 

provides for the conservation of the 

subspecies and its PCEs on occupied 

areas in Unit 2 (Lytle/Cajon wash). The 

jeopardy standard of section 7 of the Act 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the subspecies will not 

go extinct. The protections afforded to 

the San Bernardino kangaroo rat under 

the jeopardy standard will remain in 

place for the areas proposed for 

exclusion from revised critical habitat. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional habitat conservation plan 

(HCP) encompassing 1.26-million ac 

(510,000 ha) in western Riverside 

County. The MSHCP addresses 146 

listed and unlisted ‘‘covered species,’’

including the San Bernardino kangaroo 

rat. Participants in the MSHCP include 

14 cities in western Riverside County; 

the County of Riverside, including the 

Riverside County Flood Control and 

Water Conservation Agency (County 

Flood Control), Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; California Department of 

Parks and Recreation; and the California 

Department of Transportation (Caltrans). 

The MSHCP was designed to establish 

a multi-species conservation program 

that minimizes and mitigates the 

expected loss of habitat and the 

incidental take of covered species. On 

June 22, 2004, the Service issued a 

single incidental take permit (TE–

088609–0) under section 10(a)(1)(B) of 

the Act to 22 permittees under the 

MSHCP for a period of 75 years. 

The MSHCP will establish 

approximately 153,000 ac (61,916 ha) of 

new conservation lands (Additional 

Reserve Lands) to complement the 

approximately 347,000 ac (140,426 ha) 

of existing natural and open space areas 

designated by the MSHCP as Public/ 

Quasi-Public (PQP) lands. PQP lands 

include those under Federal ownership, 

primarily the U.S. Forest Service and 

Bureau of Land Management, and also 

permittee-owned open-space areas (e.g., 

State Parks, County Flood Control, and 

County Park lands). Collectively, the 

Additional Reserve Lands and PQP 

lands form the overall MSHCP 

Conservation Area. 

The precise configuration of the 

153,000 ac (61,916 ha) of Additional 

Reserve Lands is not mapped or 

precisely identified in the MSHCP, but 

rather is based on textual descriptions 

within the bounds of a 310,000 ac 

(125,453 ha) Criteria Area that is 

interpreted as implementation of the 

MSHCP proceeds. The proposed critical 

habitat Unit 3 (San Jacinto River) for the 

San Bernardino kangaroo rat is located 

within the MSHCP Plan Area. 

Specific conservation objectives in the 

MSHCP for the San Bernardino 

kangaroo rat include providing 4,400 ac 

(1,797 ha) of occupied or suitable 

habitat within the historic flood plains 

of the San Jacinto River and Bautista 

Creek and their tributaries in the 

MSHCP Conservation Area. This acreage 

goal can be provided through private 

lands within the Criteria Area that are 

targeted for inclusion within the 

MSHCP Conservation Area as potential 

Additional Reserve Lands and/or 

through coordinated management of 

PQP lands. Additionally, the MSHCP 


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requires surveys for the San Bernardino 

kangaroo rat as part of the project 

review process for public and private 

projects where suitable habitat is 

present within a defined mammal 

species survey area (see Mammal 

Species Survey Area Map, Figure 6–5 of 

the MSHCP, Volume I). For locations 

with positive survey results, 90 percent 

of those portions of the property that 

provide long-term conservation value 

for the species will be avoided until it 

is demonstrated that the conservation 

objectives for the species are met 

(Additional Survey Needs and 

Procedures; MSHCP Volume 1, section 

6.3.2). 

The survey requirements, avoidance 

and minimization measures, and 

management for the San Bernardino 

kangaroo rat (and its PCEs) provided for 

in the Western Riverside County 

MSHCP exceed any conservation value 

provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. We propose to exclude 

approximately 263 ac (106 ha) of private 

and permittee-owned PQP lands from 

revised critical habitat designation (in 

Unit 3 within the MSHCP Plan Area) 

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

areas proposed for exclusion are in 

separate parcels in the San Jacinto River 

wash distributed between the Blackburn 

Road/Lake Hemet Main Canal area, 

downstream to the East Main Street 

Bridge. Lands within these excluded 

areas are owned by or fall within the 

jurisdiction of MSHCP permittees. 

Projects in these areas conducted or 

approved by MSHCP permittees are 

subject to the conservation requirements 

of the MSHCP, including the Additional 

Survey Needs and Procedures policy. 

Lands within the MSHCP plan area 

owned by Eastern Municipal Water 

District and Lake Hemet Municipal 

Water District are not subject to the 

conservation requirements of the 

MSHCP through any discretionary 

authority of the permittees. Therefore, 

lands within proposed Unit 3 owned by 

these two water districts (506 ac (205 

ha)) are not being proposed for 

exclusion from the final revised 

designation under the Western 

Riverside County MSHCP. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified 

habitat loss, destruction, degradation, 

and fragmentation due to sand and 

gravel mining operations, flood control 

projects, and urban development as 

primary threats to the San Bernardino 

kangaroo rat. As described above, the 

Western Riverside County MSHCP 

provides enhancement of the habitat by 

removing or reducing threats to this 

subspecies and the PCEs. The MSHCP 

preserves habitat that supports 

identified core populations of this 

subspecies and therefore provides for 

recovery. 

Benefits of Inclusion 

We believe there would be minimal 

benefit in retaining critical habitat for 

the San Bernardino kangaroo rat on 

private and permittee-owned PQP lands 

in Unit 3 because habitat essential for 

this subspecies in the San Jacinto River 

area in Western Riverside County is 

within the area subject to conservation 

measures under the Western Riverside 

County MSHCP. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act, which directs Federal 

agencies to ensure that actions they 

authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of a threatened or endangered 

species, and do not result in the 

destruction or adverse modification of 

critical habitat. The inclusion of these 

263 ac (106 ha) of private and permitteeowned PQP lands in the revised critical 

habitat designation for the San 

Bernardino kangaroo rat would be 

unlikely to provide any additional 

protection for the species since the 

protection provided would be a 

limitation on the adverse effects that 

occur as opposed to a requirement to 

provide a conservation benefit. Under 

the Western Riverside County MSHCP, 

known locations of San Bernardino 

kangaroo rat in the San Jacinto River 

area will be conserved through the 

survey requirements, and avoidance and 

minimization measures. The 

conservation measures for the San 

Bernardino kangaroo rat included in the 

MSHCP are affirmative obligations that 

will provide a conservation benefit to 

the species when implemented. 

Additionally, new occurrences 

documented through survey efforts that 

are subsequently determined to be 

important to the overall conservation of 

the subspecies may be included in the 

Additional Reserve Lands. We 

anticipate that these conservation 

measures will exceed any conservation 

value provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public, 

as a means to encourage conservation 

efforts to benefit the San Bernardino 

kangaroo rat and its habitat. However, 

by publication of this proposed rule, we 

are educating the public of the location 

of core populations and areas most 

important for the recovery of this 

subspecies. Furthermore, as discussed 

above, the importance of protecting the 

biological resource values of these 

lands, including the San Bernardino 

kangaroo rat, has already been clearly 

and effectively communicated to 

Federal, State, and local agencies, as 

well as other interested organizations 

and members of the public through the 

current designation, this proposed rule, 

and the Western Riverside County 

MSHCP’s approval and implementation 

process. 

In short, we expect the Western 

Riverside County MSHCP to provide 

protection to and management of the 

San Bernardino kangaroo rat and its 

PCEs within areas considered essential 

for conservation of the subspecies on 

private and permittee-owned PQP lands 

in the San Jacinto River area. We expect 

the MSHCP to provide a greater level of 

conservation for the San Bernardino 

kangaroo rat on private and permitteeowned PQP lands in this area than 

retaining these lands as critical habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the Western Riverside County 

MSHCP commits the permittees to 

manage their own lands and direct 

development and other projects on 

private lands for which they have 

discretionary authority in western 

Riverside County, California, for the 

benefit of the San Bernardino kangaroo 

rat and other covered species. These 

commitments go well beyond a simple 

requirement to avoid adverse 

modification of critical habitat; they 

involve directing the conservation and 

management of land within Unit 3 in 

accordance with the species-specific 

objectives of the MSHCP for the San 

Bernardino kangaroo rat. Excluding 

these 263 ac (106 ha) of private and 

permittee-owned PQP lands, which are 

subject to the MSHCP, from revised 

critical habitat designation also provides 

incentive to the permittees to maintain 

and strengthen the partnerships created 

by their official participation in the 

MSHCP planning process, especially 

considering the high level of 

cooperation by the participants in the 

MSHCP to conserve this subspecies. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

proposed exclusion of approximately 

263 ac (106 ha) of private and permitteeowned PQP lands within the MSHCP 

Plan Area from the revised designation 


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of critical habitat. We have determined 

that the benefits of excluding these 

lands from Unit 3 outweigh the benefits 

of retaining these lands as critical 

habitat. The PCEs required by the San 

Bernardino kangaroo rat will benefit by 

the conservation measures outlined in 

the MSHCP. In summary, these 

conservation measures include 

providing 4,440 ac (1,797 ha) of 

occupied or suitable habitat (as defined 

in the Western Riverside MSHCP) for 

the San Bernardino kangaroo rat within 

the MSHCP Conservation Area; ensuring 

at least 75 percent of the area included 

in the MSHCP Conservation Area is 

occupied and that 20 percent of the 

occupied habitat supports a medium or 

higher population density (≥5 to 15 

individuals per ha; McKernan 1997) of 

the subspecies measured across any 8- 

year period (the approximate length of 

the weather cycle); maintaining, or, if 

feasible, restoring ecological processes 

within the historic flood plain of the 

San Jacinto River and Bautista Creek, 

their tributaries, and other locations 

within the Criteria Area where the San 

Bernardino kangaroo rat is detected in 

the future; and conducting surveys and 

implementing other required procedures 

to ensure avoidance of impacts to at 

least 90 percent of suitable habitat areas 

determined important to the long-term 

conservation of the San Bernardino 

kangaroo rat within the Criteria Area 

(Service 2004, p. 297). These specific 

conservation actions, survey 

requirements, avoidance and 

minimization measures, and 

management for the San Bernardino 

kangaroo rat and its PCEs exceed any 

conservation value provided as a result 

of regulatory protections that have been 

or may be afforded through critical 

habitat designation. 

The exclusion of these lands from 

critical habitat would also help preserve 

the partnerships that we have developed 

with the local jurisdictions and project 

proponents in the development of the 

MSHCP. The benefits of excluding these 

lands from revised critical habitat 

outweigh the minimal benefits of 

retaining these lands as critical habitat, 

including the educational benefits of 

critical habitat designation through 

informing the public of areas important 

for the long-term conservation of the 

San Bernardino kangaroo rat. Such 

educational benefits can still be 

accomplished through materials 

provided on our Web site. Further, 

many educational benefits will be 

achieved through this proposal’s notice 

and public comment period, which will 

occur whether or not these particular 

areas are designated. 

Exclusion Will Not Result in Extinction 

of the Species 

We do not believe that the exclusion 

of 263 ac (106 ha) from the final revised 

designation of critical habitat for the 

San Bernardino kangaroo rat would 

result in the extinction of the subspecies 

because the Western Riverside County 

MSHCP provides for the conservation of 

this subspecies and its PCEs on 

occupied areas in Unit 3 (San Jacinto 

River), as well as areas discovered to be 

occupied by the San Bernardino 

kangaroo rat during surveys of suitable 

habitat within a defined-boundary, 

mammal-species survey area. 

Importantly, as we stated in our 

biological opinion, while some loss of 

modeled habitat for the San Bernardino 

kangaroo rat is anticipated due to 

implementation of the MSHCP, we 

concluded that implementation of the 

plan will not jeopardize the continued 

existence of this subspecies. 

The jeopardy standard of section 7 

and routine implementation of 

conservation measures through the 

section 7 process also provide 

assurances that the subspecies will not 

go extinct. The protections afforded to 

the San Bernardino kangaroo rat under 

the jeopardy standard will remain in 

place for the areas proposed for 

exclusion from revised critical habitat. 

Economics 

An analysis of the economic impacts 

of proposing revised critical habitat for 

the San Bernardino kangaroo rat is being 

prepared. We will announce the 

availability of the draft economic 

analysis as soon as it is completed, at 

which time we will seek public review 

and comment. At that time, copies of 

the draft economic analysis will be 

available for downloading from the 

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

contacting the Carlsbad Fish and 

Wildlife Office directly (see ADDRESSES

section). 

Peer Review 

In accordance with our joint policy 

published in the Federal Register on 

July 1, 1994 (59 FR 34270), we will seek 

the expert opinions of at least three 

appropriate and independent specialists 

regarding this proposed rule. The 

purpose of such review is to ensure that 

our revised critical habitat designation 

is based on scientifically sound data, 

assumptions, and analyses. We will 

send copies of this proposed rule to 

these peer reviewers immediately 

following publication in the Federal 

Register. We will invite these peer 

reviewers to comment during the public 

comment period on the specific 

assumptions and conclusions regarding 

the proposed revised designation of 

critical habitat. 

We will consider all comments and 

information received during the 

comment period on this proposed rule 

during preparation of a final 

rulemaking. Accordingly, the final 

decision may differ from this proposal. 

Public Hearings 

The Act provides for one or more 

public hearings on this proposal, if 

requested. Requests for public hearings 

must be made in writing at least 15 days 

prior to the close of the public comment 

period. We will schedule public 

hearings on this proposal, if any are 

requested, and announce the dates, 

times, and places of those hearings in 

the Federal Register and local 

newspapers at least 15 days prior to the 

first hearing. 

Persons needing reasonable 

accommodations to attend and 

participate in the public hearings 

should contact the Carlsbad Fish and 

Wildlife Office at 760–431–9440 as soon 

as possible. To allow sufficient time to 

process requests, please call no later 

than one week before the hearing date. 

Clarity of the Rule 

Executive Order 12866 (Regulatory 

Planning and Review) requires each 

agency to write regulations and notices 

that are easy to understand. We invite 

your comments on how to make this 

proposed rule easier to understand, 

including answers to questions such as 

the following: (1) Are the requirements 

in the proposed rule clearly stated? (2) 

Does the proposed rule contain 

technical jargon that interferes with the 

clarity? (3) Does the format of the 

proposed rule (grouping and order of 

the sections, use of headings, 

paragraphing, and so forth) aid or 

reduce its clarity? (4) Is the description 

of the notice in the SUPPLEMENTARY

INFORMATION section of the preamble 

helpful in understanding the proposed 

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

this proposed rule easier to understand? 

Send a copy of any comments on how 

we could make this proposed rule easier 

to understand to: Office of Regulatory 

Affairs, Department of the Interior, 

Room 7229, 1849 C Street, NW., 

Washington, DC 20240. You may e-mail 

your comments to this address: 

Exsec@ios.doi.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 


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policy issues, but it is not anticipated to 

have an annual effect on the economy 

of $100 million or more or affect the 

economy in a material way. Due to the 

tight timeline for publication in the 

Federal Register, the Office of 

Management and Budget (OMB) has not 

formally reviewed this rule. We are 

preparing a draft economic analysis of 

this proposed action, which will be 

available for public comment, to 

determine the economic consequences 

of designating the specific area as 

critical habitat. This economic analysis 

also will be used to determine 

compliance with Executive Order 

12866, Regulatory Flexibility Act, Small 

Business Regulatory Enforcement 

Fairness Act, Executive Order 12630, 

Executive Order 13211, and Executive 

Order 12875. 

Further, Executive Order 12866 

directs Federal agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, then 

the agency will need to consider 

alternative regulatory approaches. Since 

the determination of critical habitat is a 

statutory requirement under the Act, we 

must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

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

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

subspecies. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combination 

thereof, constitutes our regulatory 

alternative analysis. 

Within these areas, the types of 

Federal actions or authorized activities 

that we have identified as potential 

concerns are listed above in the section 

on Section 7 Consultation. The 

availability of the draft economic 

analysis will be announced in the 

Federal Register and in local 

newspapers so that it is available for 

public review and comments. At that 

time, the draft economic analysis will be 

available from the internet Web site at 

http://carlsbad.fws.gov or by contacting 

the Carlsbad Fish and Wildlife Office 

directly (see ADDRESSES section). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(5 U.S.C. 601 et seq., as amended by the 

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the 

Regulatory Flexibility Act (RFA) to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

At this time, the Service lacks the 

available economic information 

necessary to provide an adequate factual 

basis for the required RFA finding. 

Therefore, the RFA finding is deferred 

until completion of the draft economic 

analysis prepared under section 4(b)(2) 

of the Act and Executive Order 12866. 

This draft economic analysis will 

provide the required factual basis for the 

RFA finding. Upon completion of the 

draft economic analysis, the Service will 

publish a notice of availability of the 

draft economic analysis of the proposed 

designation and reopen the public 

comment period for the proposed 

designation. The Service will include 

with the notice of availability, as 

appropriate, an initial regulatory 

flexibility analysis or a certification that 

the rule will not have a significant 

economic impact on a substantial 

number of small entities accompanied 

by the factual basis for that 

determination. The Service has 

concluded that deferring the RFA 

finding until completion of the draft 

economic analysis is necessary to meet 

the purposes and requirements of the 

RFA. Deferring the RFA finding in this 

manner will ensure that the Service 

makes a sufficiently informed 

determination based on adequate 

economic information and provides the 

necessary opportunity for public 

comment. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501), 

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

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 


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critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because the majority 

of the areas being proposed are under 

private and county ownership. None of 

these government entities fit the 

definition of ‘‘small governmental 

jurisdiction.’’ As such, a Small 

Government Agency Plan is not 

required. However, we will further 

evaluate this issue as we conduct our 

economic analysis and review and 

revise this assessment as warranted. 

Executive Order 13211 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) 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. While this 

proposed rule to designate critical 

habitat for the San Bernardino kangaroo 

rat is a significant regulatory action 

under Executive Order 12866, it is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

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 revised 

critical habitat for the San Bernardino 

kangaroo rat in a takings implications 

assessment. The takings implications 

assessment concludes that this revised 

designation of critical habitat for the 

San Bernardino kangaroo rat does not 

pose significant takings implications. 

However, we will further evaluate this 

issue as we conduct our economic 

analysis and review and revise this 

assessment as warranted. 

Federalism 

In accordance with Executive Order 

13132 (Federalism), this rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

proposed revised critical habitat 

designation with appropriate State 

resource agencies in California. The 

designation may have some benefit to 

these governments in that the areas that 

contain the features essential to the 

conservation of the subspecies are more 

clearly defined, and the PCEs of the 

habitat necessary to the conservation of 

the subspecies are specifically 

identified. While making this definition 

and identification does not alter where 

and what federally sponsored activities 

may occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988 (Civil Justice Reform), the 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 have proposed designating revised 

critical habitat in accordance with the 

provisions of the Act. This proposed 

rule uses standard property descriptions 

and identifies the PCEs within the 

designated areas to assist the public in 

understanding the habitat needs of the 

San Bernardino kangaroo rat. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et. seq.) 

It is our position that, outside the 

jurisdiction of the Tenth Federal Circuit, 

we do not need to prepare 

environmental analyses as defined by 

the NEPA in connection with 

designating critical habitat under the 

Act. 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 by the Ninth Circuit Court of 

Appeals (Douglas County v. Babbitt, 48 

F.3d 1495 (9th Cir. Ore. 1995), cert. 

denied 116 S. Ct. 698 (1996)). 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997, ‘‘American Indian 

Tribal Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act,’’ we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

The current designation of critical 

habitat for the San Bernardino kangaroo 

rat includes 710 ac (290 ha) of land 

within the Soboba Band of Luisen ̃ o 

Indians Reservation. At the time of 

designation, we included these lands as 

essential to the conservation of the San 

Bernardino kangaroo rat because we 

believed that the area supported several 

populations and provided continuity 

between two adjacent areas of essential 

habitat. These lands are adjacent to 

known occupied areas that we are 

proposing as critical habitat within the 

San Jacinto wash (Unit 3). However, 

given the lack of subspecies’ location 

and habitat information on Soboba Band 

of Luisen ̃ o Indians Reservation lands 

available at the time of the drafting of 

this proposed rule, we were unable to 

thoroughly assess either the status of the 

subspecies on those lands or the 

management practices currently 

employed by the Tribe. Though we 

continue to believe these Tribal lands 

are likely occupied, at least in part, by 

the San Bernardino kangaroo rat, due to 

the continuity of these lands with 

known occupied habitat, we do not 

know whether these lands contain the 

features that are essential to the 

conservation of the subspecies. As a 

result, and in light of Secretarial Order 

3206, we are not including these Tribal 

lands in the area proposed as revised 

critical habitat for the San Bernardino 

kangaroo rat. We are committed to 

maintaining a positive working 

relationship with the Tribes and will 

continue our attempts to work with 

them on conservation measures 


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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33833 

benefiting the San Bernardino kangaroo 

rat. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The primary author of this package is 

the Carlsbad Fish and Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Proposed Regulation Promulgation 

Accordingly, we propose to amend 

part 17, subchapter B of chapter I, title 

50 of the Code of Federal Regulations, 

as set forth below: 

PART 17—[AMENDED] 

1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

2. In § 17.95(a), revise the entry for 

‘‘San Bernardino Kangaroo Rat 

(Dipodomys merriami parvus)’’ to read 

as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

San Bernardino Kangaroo Rat 

(Dipodomys merriami parvus) 

(1) Critical habitat units are depicted 

for San Bernardino and Riverside 

counties, California, on the maps below. 

(2) The PCEs of critical habitat for the 

San Bernardino kangaroo rat are the 

habitat components that provide: 

(i) Alluvial fans, washes, and 

associated floodplain areas containing 

soils consisting predominately of sand, 

loamy sand, sandy loam, and loam, 

which provide burrowing habitat 

necessary for sheltering and rearing 

offspring, storing food in surface caches, 

and movement between occupied 

patches; 

(ii) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas containing alluvial sage scrub 

habitat and associated vegetation, such 

as coastal sage scrub and chamise 

chaparral, with up to approximately 50 

percent canopy cover providing 

protection from predators, while leaving 

bare ground and open areas necessary 

for foraging and movement of this 

subspecies; and 

(iii) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas, which may include marginal 

habitat such as alluvial sage scrub with 

greater than 50 percent canopy cover 

with patches of suitable soils that 

support individuals for re-population of 

wash areas following flood events. 

These areas may include agricultural 

lands, areas of inactive aggregate mining 

activities, and urban/wildland 

interfaces. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, other paved 

areas, and the land on which such 

structures are located) existing on the 

effective date of this rule and not 

containing one or more of the PCEs. 

(4) Data layers defining map units 

were created on a base of NAIP (USDA) 

1:24,000 maps, and critical habitat units 

were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Note: Index map of critical habitat 

units for the San Bernardino kangaroo 

rat (Map 1) follows: 

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BILLING CODE 4310–55–C 


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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33835 

(6) Unit 1: Santa Ana River Wash, San 

Bernardino County, California. From 

USGS 1:24,000 quadrangles San 

Bernardino North and Devore. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 482590, 

3777012; 482552, 3776943; 482558, 

3776715; 482692, 3776286; 482707, 

3776201; 482717, 3775426; 482568, 

3775426; 482435, 3775170; 482428, 

3774953; 482444, 3774750; 482466, 

3774716; 482231, 3774477; 482161, 

3774375; 481828, 3773959; 481701, 

3773548; 481670, 3773552; 481632, 

3773557; 481544, 3773563; 481307, 

3773467; 481190, 3773483; 481147, 

3773505; 481135, 3773507; 481097, 

3773509; 481019, 3773481; 480850, 

3773325; 480850, 3773289; 480835, 

3773289; 480834, 3772979; 480834, 

3772974; 480837, 3772974; 480837, 

3772904; 481087, 3772866; 481311, 

3772937; 481467, 3772911; 481609, 

3772957; 481612, 3772958; 481659, 

3772966; 481687, 3772961; 481648, 

3772551; 481660, 3772547; 481827, 

3772547; 482106, 3772547; 482223, 

3772495; 482278, 3772489; 482335, 

3772483; 482363, 3772483; 482446, 

3772484; 482448, 3772484; 482448, 

3772482; 482492, 3772485; 482495, 

3772486; 482498, 3772486; 482511, 

3772489; 482541, 3772494; 482546, 

3772497; 482552, 3772499; 482567, 

3772509; 482587, 3772519; 482608, 

3772536; 482613, 3772539; 482644, 

3772563; 482698, 3772609; 482754, 

3772665; 482775, 3772683; 482788, 

3772698; 482815, 3772725; 482846, 

3772767; 482862, 3772784; 482876, 

3772777; 482894, 3772767; 482925, 

3772752; 482946, 3772739; 482958, 

3772730; 482985, 3772705; 482993, 

3772695; 483015, 3772663; 483035, 

3772628; 483037, 3772625; 483040, 

3772621; 483067, 3772578; 483083, 

3772563; 483094, 3772552; 483097, 

3772550; 483098, 3772549; 483125, 

3772532; 483133, 3772527; 483156, 

3772520; 483172, 3772514; 483184, 

3772512; 483185, 3772511; 483202, 

3772508; 483255, 3772513; 483265, 

3772514; 483292, 3772514; 484048, 

3772536; 484062, 3772536; 484058, 

3772150; 484052, 3771841; 484100, 

3771844; 484101, 3771827; 484278, 

3771815; 484337, 3771896; 484862, 

3771943; 484861, 3772142; 484857, 

3772538; 485653, 3772529; 485653, 

3772539; 485647, 3772793; 485647, 

3772821; 485644, 3772926; 486049, 

3772935; 486455, 3772944; 487040, 

3772956; 487329, 3772655; 487916, 

3772655; 488068, 3772614; 488207, 

3772623; 488355, 3772642; 488515, 

3772698; 488645, 3772622; 489184, 

3772616; 489762, 3772965; 489816, 

3773035; 490029, 3773124; 490134, 

3773086; 490315, 3773184; 490317, 

3773081; 490336, 3773063; 490335, 

3773059; 490335, 3773051; 490334, 

3773045; 490333, 3773039; 490330, 

3773028; 490329, 3773021; 490328, 

3773018; 490326, 3773012; 490325, 

3773009; 490322, 3773002; 490318, 

3772992; 490315, 3772985; 490312, 

3772979; 490307, 3772971; 490304, 

3772965; 490283, 3772933; 490252, 

3772885; 490218, 3772832; 490214, 

3772835; 490133, 3772709; 489991, 

3772491; 489984, 3772480; 489722, 

3772106; 489717, 3772099; 489708, 

3772085; 489638, 3771986; 489625, 

3771971; 489620, 3771960; 489615, 

3771947; 489611, 3771936; 489607, 

3771910; 489607, 3771896; 489594, 

3771898; 489564, 3771905; 489527, 

3771843; 489313, 3771534; 489275, 

3771570; 489235, 3771603; 489180, 

3771642; 489136, 3771675; 489120, 

3771686; 489069, 3771718; 489021, 

3771747; 489001, 3771760; 488976, 

3771773; 488949, 3771791; 488892, 

3771818; 488820, 3771850; 488771, 

3771871; 488742, 3771884; 488715, 

3771894; 488677, 3771911; 488602, 

3771931; 488521, 3771952; 488433, 

3771975; 488400, 3771976; 488274, 

3771976; 488253, 3771979; 488223, 

3771990; 488208, 3771995; 488189, 

3772000; 488137, 3772005; 488063, 

3772004; 488001, 3772002; 487934, 

3771995; 487878, 3771990; 487818, 

3771981; 487777, 3771971; 487768, 

3771969; 487731, 3771959; 487683, 

3771947; 487658, 3771939; 487623, 

3771932; 487572, 3771917; 487529, 

3771908; 487504, 3771901; 487472, 

3771892; 487452, 3771889; 487438, 

3771886; 487423, 3771885; 487399, 

3771882; 487402, 3771867; 487403, 

3771827; 487516, 3771318; 487268, 

3771322; 487289, 3771375; 487260, 

3771394; 487260, 3771428; 485895, 

3771419; 485670, 3771343; 485670, 

3771346; 485568, 3771349; 485492, 

3771305; 485362, 3771216; 485327, 

3771254; 485241, 3771209; 485212, 

3771219; 484946, 3771219; 484822, 

3771289; 484704, 3771317; 484492, 

3771314; 484432, 3771277; 484311, 

3771273; 484149, 3771336; 484101, 

3771336; 483952, 3771292; 483790, 

3771289; 483663, 3771314; 483460, 

3771384; 483454, 3771379; 483432, 

3771436; 483352, 3771449; 483289, 

3771473; 483239, 3771476; 483239, 

3771477; 483160, 3771512; 483060, 

3771564; 483079, 3771676; 482736, 

3771752; 482723, 3771717; 482555, 

3771806; 482434, 3771863; 482384, 

3771863; 482374, 3771914; 482234, 

3771920; 482207, 3771948; 482206, 

3772009; 482142, 3772009; 482050, 

3772111; 481599, 3772114; 481595, 

3772230; 481375, 3772233; 480949, 

3772223; 480843, 3772211; 480837, 

3772210; 480517, 3772166; 480517, 

3772168; 480250, 3772165; 480228, 

3772163; 479914, 3772133; 479637, 

3772089; 479282, 3772025; 479231, 

3771987; 479221, 3771808; 479056, 

3771752; 478859, 3771749; 478793, 

3771708; 478602, 3771616; 478367, 

3771619; 478285, 3771568; 477843, 

3771295; 477777, 3771241; 477688, 

3771216; 477605, 3771187; 477389, 

3771123; 477250, 3771069; 477250, 

3771015; 477189, 3771015; 477094, 

3770968; 476993, 3770914; 476869, 

3770885; 476735, 3770847; 476583, 

3770933; 476488, 3770955; 476459, 

3770892; 476354, 3770876; 476192, 

3770714; 476126, 3770634; 476128, 

3770748; 476137, 3770822; 476142, 

3770933; 476142, 3771059; 476147, 

3771181; 476212, 3771208; 476295, 

3771232; 476384, 3771254; 476356, 

3771382; 476865, 3771484; 476869, 

3771692; 477113, 3771692; 477062, 

3771508; 477602, 3771504; 477609, 

3771666; 477742, 3771758; 477777, 

3771797; 478307, 3772085; 478291, 

3772155; 478320, 3772203; 478329, 

3772204; 478450, 3772209; 478453, 

3772209; 478534, 3772198; 478569, 

3772222; 478562, 3772235; 478404, 

3772509; 480020, 3773080; 480219, 

3773150; 480219, 3773238; 480020, 

3773167; 479937, 3773138; 479890, 

3773270; 479889, 3773324; 479889, 

3773386; 480019, 3773382; 480081, 

3773379; 480083, 3773384; 480085, 

3773390; 480479, 3773529; 480480, 

3773597; 480580, 3773637; 480642, 

3773662; 480790, 3773660; 480790, 

3773566; 480790, 3773521; 480809, 

3773521; 480809, 3773437; 480809, 

3773390; 480811, 3773392; 481009, 

3773571; 481628, 3774302; 481626, 

3774304; 481726, 3774429; 481707, 

3774543; 481803, 3774556; 482047, 

3774997; 482076, 3775099; 482079, 

3775324; 482168, 3775331; 482228, 

3775531; 482438, 3776058; 482447, 

3776499; 482422, 3776705; 482376, 

3776863; 482513, 3777012; thence 

returning to 482590, 3777012; and land 

bounded by 484746, 3773730; 484758, 

3773732; 485161, 3773709; 485628, 

3773706; 485635, 3773343; 484859, 

3773338; 484063, 3773343; 484062, 

3773734; thence returning to 484746, 

3773730. 

(ii) Note: Map of Unit 1—Santa Ana 

River Wash (Map 2) follows: 

BILLING CODE 4310–55–P 


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BILLING CODE 4310–55–C 


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Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33837 

(7) Unit 2: Lytle/Cajon Creek Wash, 

San Bernardino County, California. 

From USGS 1:24,000 quadrangles San 

Bernardino South, Redlands, Yucaipa, 

and Harrison Mountain. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 463087, 

3785948; 463459, 3785623; 463463, 

3785620; 463466, 3785617; 463469, 

3785614; 463472, 3785611; 463475, 

3785609; 463478, 3785606; 463481, 

3785603; 463484, 3785600; 463486, 

3785597; 463489, 3785594; 463492, 

3785591; 463495, 3785588; 463498, 

3785585; 463501, 3785582; 463503, 

3785579; 463506, 3785576; 463509, 

3785573; 463512, 3785570; 463514, 

3785567; 463517, 3785564; 463520, 

3785561; 463522, 3785558; 463525, 

3785554; 463527, 3785551; 463530, 

3785548; 463533, 3785545; 463535, 

3785541; 463538, 3785538; 463540, 

3785535; 463542, 3785532; 463545, 

3785528; 463547, 3785525; 463550, 

3785521; 463552, 3785518; 463554, 

3785515; 463556, 3785511; 463559, 

3785508; 463561, 3785504; 463563, 

3785501; 463565, 3785497; 463568, 

3785494; 463570, 3785490; 463572, 

3785487; 463574, 3785483; 463576, 

3785480; 463578, 3785476; 463580, 

3785473; 463582, 3785469; 463584, 

3785465; 463586, 3785462; 463588, 

3785458; 463589, 3785454; 463591, 

3785451; 463711, 3785198; 463711, 

3785196; 463710, 3785195; 463710, 

3785193; 463710, 3785191; 463710, 

3785190; 463709, 3785188; 463709, 

3785186; 463709, 3785185; 463709, 

3785183; 463709, 3785181; 463709, 

3785180; 463709, 3785178; 463709, 

3785176; 463709, 3785175; 463709, 

3785173; 463709, 3785171; 463709, 

3785170; 463710, 3785168; 463710, 

3785166; 463710, 3785165; 463710, 

3785163; 463711, 3785162; 463711, 

3785160; 463711, 3785158; 463712, 

3785157; 463712, 3785155; 463713, 

3785153; 463713, 3785152; 463714, 

3785150; 463714, 3785149; 463715, 

3785147; 463715, 3785146; 463716, 

3785144; 463716, 3785143; 463717, 

3785141; 463718, 3785140; 463720, 

3785135; 463722, 3785131; 463724, 

3785127; 463726, 3785123; 463728, 

3785119; 463730, 3785115; 463732, 

3785111; 463734, 3785107; 463736, 

3785103; 463739, 3785100; 463741, 

3785096; 463743, 3785092; 463745, 

3785088; 463748, 3785084; 463750, 

3785080; 463752, 3785076; 463755, 

3785072; 463757, 3785069; 463760, 

3785065; 463762, 3785061; 463765, 

3785057; 463767, 3785054; 463770, 

3785050; 463772, 3785046; 463775, 

3785042; 463777, 3785039; 463780, 

3785035; 463783, 3785031; 463785, 

3785028; 463788, 3785024; 463791, 

3785021; 463794, 3785017; 463797, 

3785014; 463799, 3785010; 463802, 

3785007; 463805, 3785003; 463808, 

3785000; 463811, 3784996; 463814, 

3784993; 463817, 3784989; 463820, 

3784986; 463823, 3784983; 463826, 

3784979; 463829, 3784976; 463832, 

3784973; 463835, 3784969; 463838, 

3784966; 463841, 3784963; 463844, 

3784960; 463848, 3784956; 463851, 

3784953; 463854, 3784950; 463857, 

3784947; 463861, 3784944; 463864, 

3784941; 463867, 3784938; 463870, 

3784935; 463874, 3784932; 463877, 

3784929; 463881, 3784926; 463884, 

3784923; 463887, 3784920; 463891, 

3784917; 463894, 3784914; 463898, 

3784911; 463901, 3784908; 463905, 

3784906; 463909, 3784903; 463912, 

3784900; 463916, 3784897; 463919, 

3784895; 463923, 3784892; 463927, 

3784889; 463930, 3784887; 463934, 

3784884; 463938, 3784882; 463941, 

3784879; 463945, 3784876; 463949, 

3784874; 463953, 3784872; 463956, 

3784869; 463960, 3784867; 463964, 

3784864; 463968, 3784862; 463972, 

3784860; 463976, 3784857; 463979, 

3784855; 463983, 3784853; 463987, 

3784851; 463991, 3784849; 464414, 

3784611; 464418, 3784609; 464423, 

3784607; 464427, 3784604; 464431, 

3784602; 464435, 3784600; 464439, 

3784597; 464443, 3784595; 464447, 

3784592; 464451, 3784590; 464455, 

3784587; 464459, 3784584; 464463, 

3784582; 464467, 3784579; 464471, 

3784577; 464475, 3784574; 464478, 

3784571; 464482, 3784568; 464486, 

3784566; 464490, 3784563; 464494, 

3784560; 464498, 3784557; 464501, 

3784554; 464505, 3784551; 464509, 

3784549; 464501, 3784413; 464641, 

3784413; 464644, 3784410; 464647, 

3784406; 464650, 3784402; 464653, 

3784398; 464655, 3784394; 464658, 

3784390; 464661, 3784386; 464663, 

3784383; 464666, 3784379; 464669, 

3784375; 464671, 3784371; 464674, 

3784367; 464676, 3784363; 464679, 

3784359; 464681, 3784355; 464684, 

3784350; 464686, 3784346; 464689, 

3784342; 464691, 3784338; 464693, 

3784334; 464696, 3784330; 464698, 

3784326; 464700, 3784322; 464703, 

3784317; 464705, 3784313; 464707, 

3784309; 464709, 3784305; 464711, 

3784301; 464713, 3784296; 464716, 

3784292; 464718, 3784288; 464720, 

3784283; 464722, 3784279; 464724, 

3784275; 464726, 3784270; 464727, 

3784266; 464729, 3784262; 464731, 

3784257; 464733, 3784253; 464735, 

3784249; 464737, 3784244; 464738, 

3784240; 464740, 3784235; 464742, 

3784231; 464743, 3784226; 464745, 

3784222; 464747, 3784217; 464748, 

3784213; 464750, 3784208; 464751, 

3784204; 464753, 3784199; 464754, 

3784195; 464756, 3784190; 464757, 

3784186; 464758, 3784181; 464760, 

3784177; 464761, 3784172; 464857, 

3783831; 464897, 3783842; 464899, 

3783837; 464902, 3783833; 464904, 

3783828; 464907, 3783824; 464910, 

3783819; 464913, 3783813; 464916, 

3783808; 464919, 3783803; 464922, 

3783798; 464925, 3783792; 464928, 

3783787; 464931, 3783782; 464934, 

3783777; 464937, 3783772; 464941, 

3783767; 464944, 3783762; 464947, 

3783757; 464950, 3783752; 464954, 

3783746; 464957, 3783741; 464960, 

3783736; 464964, 3783731; 464967, 

3783726; 464971, 3783722; 464974, 

3783717; 464978, 3783712; 464981, 

3783707; 464985, 3783702; 464988, 

3783697; 464992, 3783692; 464996, 

3783687; 464999, 3783683; 465003, 

3783678; 465007, 3783673; 465010, 

3783668; 465014, 3783663; 465018, 

3783659; 465022, 3783654; 465025, 

3783649; 465029, 3783645; 465033, 

3783640; 465037, 3783635; 465041, 

3783631; 465045, 3783626; 465049, 

3783622; 465053, 3783617; 465057, 

3783613; 465061, 3783608; 465065, 

3783604; 465069, 3783599; 465073, 

3783595; 465077, 3783590; 465081, 

3783586; 465085, 3783582; 465090, 

3783577; 465094, 3783573; 465098, 

3783568; 465102, 3783564; 465107, 

3783560; 465111, 3783556; 465115, 

3783551; 465120, 3783547; 465124, 

3783543; 465128, 3783539; 465133, 

3783535; 465137, 3783531; 465142, 

3783527; 465146, 3783522; 465150, 

3783518; 465155, 3783514; 465159, 

3783510; 465164, 3783506; 465169, 

3783502; 465173, 3783499; 465178, 

3783495; 465182, 3783491; 465187, 

3783487; 465192, 3783483; 465196, 

3783479; 465201, 3783475; 465206, 

3783472; 465211, 3783468; 465215, 

3783464; 465219, 3783461; 465220, 

3783461; 465237, 3783447; 465330, 

3783377; 465384, 3783336; 465383, 

3783334; 465383, 3783334; 465514, 

3783231; 465509, 3783190; 465484, 

3783074; 465504, 3783003; 465473, 

3782871; 465504, 3782792; 465512, 

3782786; 465511, 3782785; 465676, 

3782436; 465842, 3782568; 466014, 

3782350; 466015, 3782349; 466015, 

3782348; 466016, 3782348; 466016, 

3782347; 466016, 3782346; 466016, 

3782345; 466016, 3782344; 466016, 

3782342; 466016, 3782341; 466016, 

3782340; 466016, 3782339; 466015, 

3782338; 466015, 3782337; 466015, 

3782337; 465121, 3781997; 465058, 

3781947; 466028, 3782316; 466050, 

3782333; 466071, 3782350; 466127, 

3782394; 466086, 3782237; 466067, 


jlentini on PROD1PC65 with PROPOSALS2
33838 Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 

3782165; 465959, 3781749; 465942, 

3781684; 465914, 3781577; 465973, 

3781562; 465975, 3781568; 465982, 

3781564; 466048, 3781370; 466086, 

3781370; 466115, 3781283; 466429, 

3781090; 466275, 3780501; 466310, 

3780489; 466369, 3780434; 466414, 

3780371; 466466, 3780157; 466486, 

3780063; 466501, 3780068; 466500, 

3780066; 466581, 3779690; 466679, 

3779391; 466733, 3779382; 466790, 

3779293; 466882, 3779236; 466882, 

3779125; 466917, 3779115; 466914, 

3779058; 466977, 3779039; 466987, 

3778991; 467139, 3778991; 467149, 

3778737; 467387, 3778725; 467597, 

3778496; 467752, 3778493; 467759, 

3778339; 468060, 3778026; 468174, 

3777982; 468181, 3777512; 468340, 

3777113; 468255, 3777113; 468119, 

3777113; 467943, 3777115; 467678, 

3777117; 466571, 3777823; 466570, 

3777827; 466541, 3777892; 466496, 

3778032; 466485, 3778077; 466447, 

3778220; 466434, 3778243; 466335, 

3778382; 466267, 3778449; 466187, 

3778499; 466020, 3778577; 465652, 

3778740; 464939, 3779024; 464822, 

3779058; 464682, 3779087; 464564, 

3779134; 464471, 3779162; 464372, 

3779212; 464293, 3779251; 464216, 

3779286; 464140, 3779342; 464091, 

3779383; 464016, 3779409; 463950, 

3779446; 463927, 3779515; 463878, 

3779550; 463788, 3779684; 463845, 

3779891; 463768, 3779899; 463803, 

3779983; 463708, 3780047; 463480, 

3780145; 463356, 3780190; 463414, 

3780332; 463377, 3780374; 463311, 

3780366; 463095, 3780562; 462984, 

3780554; 462796, 3780459; 462646, 

3780485; 462527, 3780568; 462522, 

3780647; 462373, 3780762; 462231, 

3780862; 461712, 3780917; 461478, 

3780941; 461375, 3780956; 461330, 

3780971; 461269, 3781002; 461212, 

3781041; 461169, 3781078; 461139, 

3781072; 461121, 3781059; 461067, 

3781011; 460802, 3781211; 460285, 

3781589; 459890, 3781893; 459890, 

3781986; 459877, 3782079; 459875, 

3782086; 459946, 3782202; 460021, 

3782325; 460163, 3782484; 460489, 

3782811; 460560, 3782745; 460564, 

3782743; 460765, 3782618; 460996, 

3782475; 461013, 3782464; 461068, 

3782430; 461109, 3782404; 461146, 

3782384; 461189, 3782360; 461230, 

3782341; 461272, 3782328; 461317, 

3782321; 461353, 3782318; 461398, 

3782309; 461436, 3782296; 461472, 

3782280; 461501, 3782262; 461548, 

3782232; 461611, 3782193; 461651, 

3782167; 461674, 3782155; 461694, 

3782147; 461724, 3782138; 461759, 

3782133; 461801, 3782122; 461833, 

3782108; 461864, 3782087; 461892, 

3782069; 461908, 3782052; 461925, 

3782034; 461943, 3782010; 461963, 

3781983; 461984, 3781962; 462010, 

3781941; 462038, 3781924; 462130, 

3781866; 462494, 3781639; 462953, 

3781351; 463979, 3780695; 464077, 

3780888; 463904, 3781111; 463869, 

3781355; 463928, 3781410; 463929, 

3781408; 463931, 3781410; 464023, 

3781552; 464037, 3781481; 464028, 

3781392; 464123, 3781303; 464161, 

3781306; 464183, 3781338; 464145, 

3781392; 464193, 3781401; 464241, 

3781439; 464307, 3781379; 464323, 

3781341; 464253, 3781277; 464339, 

3781160; 464393, 3781208; 464457, 

3781157; 464520, 3781274; 464603, 

3781395; 464574, 3781763; 464948, 

3781902; 465028, 3781931; 465018, 

3781957; 464907, 3782252; 464739, 

3782425; 464704, 3782520; 464707, 

3782523; 464637, 3782704; 464620, 

3782748; 464598, 3782810; 464638, 

3782878; 464453, 3783327; 464288, 

3783603; 464261, 3783673; 464237, 

3783776; 464247, 3783868; 464215, 

3783967; 464174, 3784068; 464066, 

3784217; 464003, 3784363; 463985, 

3784383; 463985, 3784383; 463863, 

3784525; 463801, 3784678; 463717, 

3784773; 463599, 3784846; 463305, 

3784948; 463329, 3785011; 463006, 

3785227; 462847, 3785360; 462691, 

3785459; 462606, 3785447; 462189, 

3785879; 462264, 3786254; 462274, 

3786288; 462129, 3786325; 461990, 

3786399; 461766, 3786559; 461437, 

3786804; 461037, 3787098; 460940, 

3787169; 460778, 3787284; 460623, 

3787401; 460404, 3787563; 460100, 

3787788; 460033, 3787837; 460484, 

3788310; 460620, 3788204; 460731, 

3788116; 460834, 3788037; 460924, 

3787969; 461135, 3787816; 461239, 

3787744; 461331, 3787679; 461367, 

3787664; 461420, 3787623; 461678, 

3787447; 461853, 3787333; 461874, 

3787345; 461902, 3787345; 461999, 

3787259; 462221, 3787075; 462412, 

3786923; 462532, 3786856; 462642, 

3786781; 462585, 3786644; 462714, 

3786559; 462827, 3786525; 462978, 

3786502; 463028, 3786459; 463101, 

3786027; 463079, 3785989; thence 

returning to 463087, 3785948. 

(ii) Note: Map of Unit 2—Lytle/Cajon 

Creek Wash (Map 3) follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33839 

BILLING CODE 4310–55–C 


jlentini on PROD1PC65 with PROPOSALS2EP19JN07.002</GPH>
33840 Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 

(8) Unit 3: San Jacinto River Wash, 

Riverside County, California. From 

USGS 1:24,000 quadrangles San Jacinto, 

Lake Fulmor, and Blackburn Canyon. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 506117, 

3738196; 506135, 3738210; 506228, 

3738277; 506282, 3738312; 506282, 

3738310; 506287, 3738302; 506514, 

3737927; 506580, 3737885; 506695, 

3737835; 506822, 3737844; 506911, 

3737879; 506814, 3737733; 506706, 

3737612; 506706, 3737612; 506998, 

3737324; 507521, 3736810; 507732, 

3736601; 507738, 3736595; 507957, 

3736381; 507957, 3736381; 507995, 

3736344; 508001, 3736338; 508047, 

3736292; 508048, 3736291; 508218, 

3736124; 508304, 3736040; 508329, 

3736015; 508329, 3736015; 508329, 

3736013; 508329, 3735915; 508354, 

3735915; 508441, 3735915; 508519, 

3735915; 508840, 3735916; 508960, 

3735917; 509020, 3735917; 509160, 

3735917; 509160, 3735917; 509655, 

3735918; 509951, 3735919; 509951, 

3735919; 510024, 3735919; 510142, 

3735920; 510353, 3735749; 510396, 

3735714; 510412, 3735701; 510501, 

3735629; 510368, 3735629; 510301, 

3735629; 510293, 3735629; 510291, 

3735629; 510165, 3735633; 510165, 

3735633; 509979, 3735640; 509979, 

3735640; 509971, 3735641; 509971, 

3735624; 509952, 3735623; 509952, 

3735602; 509949, 3735602; 509949, 

3735602; 509784, 3735596; 509719, 

3735596; 509617, 3735602; 509524, 

3735604; 509480, 3735596; 509443, 

3735573; 509408, 3735545; 509382, 

3735562; 509352, 3735581; 509330, 

3735592; 509327, 3735616; 509327, 

3735616; 509324, 3735641; 509248, 

3735672; 509247, 3735672; 509176, 

3735701; 509181, 3735746; 509171, 

3735752; 509171, 3735752; 509152, 

3735762; 509152, 3735767; 509152, 

3735767; 509148, 3735767; 509142, 

3735767; 509142, 3735767; 509058, 

3735769; 509058, 3735767; 509058, 

3735767; 509058, 3735767; 509027, 

3735767; 508961, 3735766; 508870, 

3735766; 508840, 3735766; 508840, 

3735758; 508840, 3735758; 508840, 

3735758; 508825, 3735758; 508825, 

3735707; 508657, 3735707; 508657, 

3735704; 508653, 3735704; 508629, 

3735704; 508629, 3735704; 508648, 

3735667; 508648, 3735665; 508654, 

3735621; 508429, 3735619; 508428, 

3735633; 508428, 3735633; 508423, 

3735710; 508423, 3735710; 508422, 

3735731; 508422, 3735732; 508422, 

3735733; 508421, 3735734; 508421, 

3735734; 508331, 3735816; 508331, 

3735816; 508288, 3735855; 508000, 

3735892; 507945, 3735913; 507945, 

3735913; 507945, 3735914; 507944, 

3735930; 507944, 3735939; 507944, 

3735940; 507944, 3735951; 507890, 

3735951; 507809, 3735986; 507771, 

3736006; 507771, 3736006; 507745, 

3735996; 507722, 3736011; 507715, 

3736008; 507712, 3736010; 507693, 

3736022; 507672, 3736036; 507655, 

3736048; 507654, 3736048; 507618, 

3736009; 507652, 3735977; 507636, 

3735969; 507544, 3736055; 507524, 

3736074; 507371, 3736215; 507369, 

3736214; 507355, 3736228; 507025, 

3736541; 507002, 3736563; 506978, 

3736586; 506896, 3736665; 506895, 

3736666; 506895, 3736666; 506894, 

3736667; 506894, 3736667; 506893, 

3736667; 506893, 3736668; 506893, 

3736668; 506892, 3736669; 506892, 

3736669; 506891, 3736670; 506891, 

3736670; 506890, 3736670; 506890, 

3736671; 506889, 3736671; 506889, 

3736672; 506889, 3736672; 506888, 

3736672; 506888, 3736673; 506887, 

3736673; 506887, 3736674; 506886, 

3736674; 506886, 3736675; 506886, 

3736675; 506885, 3736675; 506885, 

3736676; 506884, 3736676; 506884, 

3736677; 506883, 3736677; 506883, 

3736677; 506869, 3736663; 506869, 

3736663; 506724, 3736806; 506739, 

3736807; 506748, 3736807; 506751, 

3736807; 506752, 3736807; 506752, 

3736807; 506765, 3736807; 506778, 

3736807; 506778, 3736807; 506778, 

3736807; 506770, 3736815; 506716, 

3736868; 506716, 3736900; 506715, 

3736937; 506731, 3736949; 506729, 

3736952; 506716, 3736970; 506715, 

3736970; 506715, 3736972; 506715, 

3736974; 506707, 3736985; 506701, 

3736993; 506694, 3737002; 506668, 

3737036; 506648, 3737116; 506620, 

3737156; 506615, 3737164; 506590, 

3737200; 506476, 3737373; 506471, 

3737380; 506467, 3737386; 506459, 

3737399; 506456, 3737403; 506450, 

3737411; 506446, 3737418; 506446, 

3737418; 506442, 3737424; 506434, 

3737437; 506429, 3737444; 506425, 

3737449; 506417, 3737462; 506408, 

3737475; 506408, 3737476; 506400, 

3737488; 506397, 3737492; 506393, 

3737498; 506386, 3737508; 506385, 

3737510; 506380, 3737518; 506376, 

3737524; 506373, 3737528; 506367, 

3737538; 506366, 3737538; 506360, 

3737549; 506354, 3737556; 506353, 

3737559; 506349, 3737564; 506346, 

3737569; 506345, 3737571; 506339, 

3737579; 506333, 3737589; 506329, 

3737594; 506326, 3737599; 506323, 

3737603; 506319, 3737610; 506318, 

3737611; 506317, 3737612; 506317, 

3737612; 506314, 3737618; 506312, 

3737620; 506311, 3737622; 506306, 

3737630; 506302, 3737636; 506299, 

3737640; 506292, 3737650; 506292, 

3737650; 506292, 3737650; 506109, 

3737926; 506080, 3737971; 506052, 

3738016; 505994, 3738113; 505995, 

3738113; 505995, 3738114; 506106, 

3738189; 506117, 3738196; thence 

returning to 506117, 3738196; excluding 

land bounded by 507244, 3736626; 

507246, 3736530; 507151, 3736624; 

507002, 3736775; 506778, 3737041; 

506775, 3737110; 506775, 3737110; 

506768, 3737316; 507008, 3737084; 

507241, 3736853; 507241, 3736809; 

507244, 3736626; 507244, 3736626; 

land bounded by 506873, 3736759; 

506883, 3736769; 506937, 3736716; 

506914, 3736692; 506905, 3736683; 

506851, 3736737; 506873, 3736759; 

land bounded by 507074, 3736530; 

507114, 3736572; 507169, 3736519; 

507129, 3736477; 507074, 3736530; 

land bounded by 507292, 3736320; 

507327, 3736358; 507375, 3736313; 

507339, 3736275; 507292, 3736320; 

land bounded by 507567, 3736120; 

507544, 3736096; 507537, 3736088; 

507524, 3736101; 507504, 3736120; 

507524, 3736141; 507535, 3736152; 

507538, 3736149; 507544, 3736143; 

507568, 3736120; 507567, 3736120; and 

returning to and including land 

bounded by 510729, 3735445; 510775, 

3735408; 510878, 3735324; 510994, 

3735230; 510994, 3735230; 511017, 

3735232; 511327, 3735248; 511343, 

3735215; 511435, 3735139; 511546, 

3735076; 511550, 3735073; 511550, 

3735073; 511553, 3734778; 511588, 

3734750; 511971, 3734440; 511995, 

3734420; 512002, 3734415; 512033, 

3734390; 512088, 3734345; 512215, 

3734346; 512565, 3734349; 512578, 

3734345; 512683, 3734285; 512783, 

3734259; 512783, 3734259; 513126, 

3734171; 513126, 3734171; 513191, 

3734155; 513199, 3734149; 513199, 

3734140; 513211, 3734141; 513292, 

3734082; 513382, 3734051; 513385, 

3733950; 513512, 3733950; 513567, 

3733938; 513574, 3733895; 513579, 

3733858; 513629, 3733843; 513714, 

3733840; 513831, 3733840; 513914, 

3733835; 513976, 3733825; 514016, 

3733808; 514056, 3733768; 514118, 

3733738; 514158, 3733698; 514193, 

3733658; 514241, 3733626; 514277, 

3733575; 514276, 3733574; 514276, 

3733574; 514252, 3733558; 514225, 

3733508; 514221, 3733450; 514206, 

3733358; 514193, 3733245; 514180, 

3733248; 514180, 3733248; 514180, 

3733248; 514140, 3733259; 514140, 

3733259; 514140, 3733259; 513906, 

3733320; 513906, 3733320; 513906, 

3733320; 513889, 3733324; 513874, 

3733327; 513874, 3733327; 513726, 

3733357; 513576, 3733387; 513575, 

3733387; 513575, 3733387; 513575, 


jlentini on PROD1PC65 with PROPOSALS2
Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 33841 

3733387; 513575, 3733387; 513574, 

3733387; 513574, 3733387; 513574, 

3733387; 513574, 3733387; 513573, 

3733387; 513573, 3733387; 513573, 

3733387; 513572, 3733387; 513572, 

3733387; 513572, 3733388; 513572, 

3733388; 513571, 3733388; 513571, 

3733388; 513571, 3733388; 513570, 

3733388; 513570, 3733388; 513570, 

3733388; 513569, 3733388; 513569, 

3733388; 513569, 3733388; 513568, 

3733388; 513568, 3733388; 513568, 

3733388; 513567, 3733388; 513567, 

3733388; 513567, 3733389; 513567, 

3733389; 513566, 3733389; 513566, 

3733389; 513566, 3733389; 513565, 

3733389; 513565, 3733389; 513565, 

3733389; 513564, 3733389; 513564, 

3733389; 513564, 3733389; 513563, 

3733389; 513563, 3733389; 513563, 

3733389; 513563, 3733389; 513562, 

3733389; 513562, 3733389; 513561, 

3733390; 513561, 3733390; 513561, 

3733390; 513561, 3733390; 513560, 

3733390; 513560, 3733390; 513560, 

3733390; 513559, 3733390; 513559, 

3733390; 513559, 3733390; 513558, 

3733390; 513558, 3733390; 513558, 

3733390; 513557, 3733390; 513557, 

3733390; 513557, 3733390; 513556, 

3733390; 513556, 3733391; 513555, 

3733391; 513555, 3733391; 513555, 

3733391; 513555, 3733391; 513554, 

3733391; 513554, 3733391; 513554, 

3733391; 513553, 3733391; 513553, 

3733391; 513553, 3733391; 513553, 

3733391; 513546, 3733555; 513545, 

3733561; 513545, 3733561; 513542, 

3733573; 513542, 3733573; 513521, 

3733653; 513473, 3733663; 513403, 

3733637; 513213, 3733634; 513203, 

3733786; 513199, 3733786; 513199, 

3733786; 513127, 3733787; 513127, 

3733787; 512790, 3733789; 512790, 

3733789; 512773, 3733790; 512762, 

3733799; 512761, 3733799; 512715, 

3733780; 512686, 3733768; 512686, 

3733768; 512644, 3733756; 512594, 

3733733; 512405, 3733829; 512396, 

3733863; 512396, 3733863; 512394, 

3733869; 512355, 3733899; 512348, 

3733910; 512325, 3733924; 512317, 

3733928; 512216, 3734006; 512194, 

3734024; 512172, 3734042; 512160, 

3734052; 512129, 3734077; 512127, 

3734078; 512125, 3734080; 512112, 

3734090; 512096, 3734102; 512056, 

3734133; 511989, 3734147; 511971, 

3734150; 511953, 3734154; 511946, 

3734160; 511937, 3734167; 511891, 

3734202; 511882, 3734209; 511837, 

3734248; 511809, 3734261; 511806, 

3734263; 511789, 3734265; 511789, 

3734265; 511707, 3734276; 511696, 

3734280; 511686, 3734283; 511669, 

3734289; 511659, 3734293; 511606, 

3734338; 511597, 3734347; 511588, 

3734356; 511588, 3734418; 511588, 

3734418; 511589, 3734418; 511643, 

3734472; 511698, 3734540; 511673, 

3734540; 511687, 3734557; 511689, 

3734573; 511619, 3734643; 511538, 

3734688; 511449, 3734714; 511275, 

3734818; 511275, 3734819; 511257, 

3734829; 510979, 3735062; 510979, 

3735062; 510792, 3735219; 510792, 

3735219; 510776, 3735233; 510776, 

3735233; 510750, 3735255; 510739, 

3735274; 510718, 3735407; 510718, 

3735407; 510717, 3735409; 510709, 

3735426; 510709, 3735426; 510698, 

3735450; 510698, 3735450; 510688, 

3735471; 510688, 3735471; 510682, 

3735483; 510682, 3735483; 510693, 

3735474; 510715, 3735457; thence 

returning to 510729, 3735445. 

(ii) Note: Map of Unit 3—San Jacinto 

River Wash (Map 4) follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with PROPOSALS2
33842 Federal Register / Vol. 72, No. 117 / Tuesday, June 19, 2007 / Proposed Rules 

* * * * * Dated: June 1, 2007. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 07–2823 Filed 6–18–07; 8:45 am] 

BILLING CODE 4310–55–C 


jlentini on PROD1PC65 with PROPOSALS2EP19JN07.003</GPH>