61218 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AH61

Endangered and Threatened Wildlife

and Plants; Proposed Designation of

Critical Habitat for the Bay

Checkerspot Butterfly (Euphydryas

editha bayensis)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Proposed rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), propose to

designate critical habitat pursuant to the

Endangered Species Act of 1973, as

amended (Act), for the bay checkerspot

butterfly (Euphydryas editha bayensis)

(bay checkerspot). A total of

approximately 10,597 hectares (26,182

acres) of land falls within the

boundaries of the proposed critical

habitat designation. Proposed critical

habitat is located in San Mateo and

Santa Clara Counties, California. If this

proposal is made final, section 7 of the

Act requires Federal agencies to insure

that any activity they fund, authorize, or

carry out does not result in the

destruction or adverse modification of

critical habitat. Section 4 of the Act

requires us to consider economic and

other impacts of specifying any

particular area as critical habitat. We

solicit data and comments from the

public on all aspects of this proposal,

including data on the economic and

other impacts of the designation. We

may revise this proposal to incorporate

or address new information received

during the comment period.

DATES: We will accept comments until

December 15, 2000. We will hold a

public hearing in Newark, California, on

October 30, 2000, from 1:00 p.m. to 3:00

p.m. and from 6:00 p.m. to 8:00 p.m.

ADDRESSES: Comment Submission: 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 written comments

to the Field Supervisor, Sacramento

Fish and Wildlife Office, U.S. Fish and

Wildlife Service, 2800 Cottage Way,

Suite W 2605, Sacramento, California

95825.

(2) You may send comments by

electronic mail (e-mail) to

fw1baycheckerspot@fws.gov. See the

Public Comments Solicited section

below for file format and other

information about electronic filing.

(3) You may hand-deliver comments

to our Sacramento Fish and Wildlife

Office, U.S. Fish and Wildlife Service,

2800 Cottage Way, Suite W 2605,

Sacramento, California 95825.

Public Hearing: We will hold the

Newark hearing at the Hilton Newark/

Fremont, 39900 Balentine Drive,

Newark, California.

Document Availability: 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 address listed under (3)

above.

FOR FURTHER INFORMATION CONTACT:

David Wright or Ken Sanchez at

telephone 916/414–6600.

SUPPLEMENTARY INFORMATION:

Background

The bay checkerspot is a mediumsized butterfly with a wingspan of about

5 centimeters (2 inches). The forewings

have black bands along all the veins on

the upper wing surface, contrasting

sharply with bright red, yellow, and

white spots. The bay checkerspot differs

from LuEsther’s checkerspot

(Euphydryas editha luestherae) (a laterflying, Pedicularis-feeding subspecies of

Inner Coast Range chaparral in central

California) by being darker, and by

lacking a relatively uninterrupted red

band demarcating the outer wing third.

The black banding on the forewings of

the bay checkerspot gives a more

checkered appearance than in other

subspecies, such as the smaller Quino

checkerspot (Euphydryas editha quino)

of southern California, or the montane

subspecies (for example, the Mono

checkerspot, Euphydryas editha

monoensis) (Service 1998).

Recent publications have advocated

renaming the bay checkerspot,

Euphydryas editha bayensis, as

Euphydryas editha editha for reasons of

historical precedence (Mattoni et al.

1997; Emmel et al. 1998). Mattoni and

co-authors (1997) have also suggested

that Euphydryas editha editha ranges

from the San Francisco Bay area south

to Santa Barbara County in California,

and includes both the populations

commonly known as the bay

checkerspot and several populations

south of Santa Clara County whose

subspecific status has been uncertain. If

this expanded subspecific assignment is

accepted by the scientific community, it

would represent a range extension for

the bay checkerspot. Until such time as

we make any new or revised

determination on the taxonomy, and in

this proposed rule, we treat the

threatened bay checkerspot as occurring

in San Francisco Bay area counties,

notably the Counties of San Mateo and

Santa Clara.

The bay checkerspot formerly

occurred around San Francisco Bay,

from Twin Peaks and San Bruno

Mountain (west of the Bay) and Contra

Costa County (east of the Bay) south

through Santa Clara County. Before the

introduction of invasive Eurasian

grasses and other weeds in the 1700s, its

distribution may have been wider

(Service 1998). In the decades preceding

listing, the decline of the bay

checkerspot was primarily attributed to

loss of habitat and fragmentation of

habitat due to increasing urbanization.

Drought and other extremes of weather

have also been implicated in bay

checkerspot population declines

(Service 1998). Recent research has

tentatively identified excess nitrogen

deposition from polluted air as a threat

to bay checkerspot habitats, due to its

fertilizing effect enhancing the growth

of invasive nonnative plants even in

serpentine soil areas (Weiss 1999).

The known range of the bay

checkerspot is now reduced to Santa

Clara and San Mateo Counties, and the

butterfly is patchily distributed in these

locales. Studies of the bay checkerspot

have described its distribution as an

example of a metapopulation (see

literature cited in Service 1998). A

metapopulation is a group of spatially

separated populations that can

occasionally exchange dispersing

individuals. The populations in a

metapopulation are usually thought of

as undergoing interdependent

extinction and colonization, where

individual populations may go extinct,

but later recolonize from another

population. Bay checkerspot

populations may also exhibit ‘‘pseudoextinction,’’ where the species is not

found, but nonetheless continues to

inhabit a site and reappears in a

subsequent year. Larvae that diapause

(spend a period of dormancy as larvae

(caterpillars)), under rocks and deep in

soil cracks for more than 1 year may be

responsible for pseudo-extinctions,

since dormant larvae are essentially

undetectable in surveys. Because of

pseudo-extinction and metapopulation

dynamics, even sites that in some years

apparently lack the bay checkerspot can

be important to the survival and

recovery of the species.

Bay checkerspot butterfly populations

vary greatly from year to year. Many or

most individuals of the species live only

a single year, and with high fecundity

(fertility), high mortality, and sensitivity

to weather and perhaps other ecological

conditions, large population swings are

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61219

common for the bay checkerspot.

Fluctuations of more than 100-fold have

been observed. These fluctuations are

not always in synchrony among

populations at different sites.

Habitat of the bay checkerspot exists

on shallow, serpentine-derived or

similarly droughty or infertile soils,

which support the butterfly’s larval food

plants as well as nectar sources for

adults. Serpentine soils are high in

magnesium and low in calcium, and are

a strong indicator of habitat value for

the butterfly. The primary larval host

plant of the bay checkerspot is Plantago

erecta (dwarf plantain), an annual,

native plantain. The butterfly usually is

found associated with Plantago erecta

in grasslands on serpentine soils, such

as soils in the Montara series. In Santa

Clara County, the Inks and Climara soil

series are related soils and often have

inclusions of Montara (U.S. Soil

Conservation Service 1974). Henneke

and other serpentine soils also occur

within the range of the butterfly.

Populations of the bay checkerspot

formerly occurred on San Bruno

Mountain and other locations with soils

that are not serpentine. We believe this

indicates that, with otherwise suitable

habitat conditions, the bay checkerspot

is capable of living in nonserpentine

soil areas.

In many years, bay checkerspot larvae

may use a secondary host plant species,

for instance, when dwarf plantain dries

up while prediapause larvae are still

feeding. Castilleja (Orthocarpus)

densiflora (purple owl’s-clover) and

Castilleja exserta (Orthocarpus

purpurascens) (exserted paintbrush) are

known secondary host plants that often

remain edible later in the season than

dwarf plantain. Bay checkerspot adults

also visit flowers for nectar. Nectar

plants commonly visited include

Lomatium spp. (desert parsley),

Lasthenia californica (= chrysostoma)

(California goldfields), Layia platyglossa

(tidy-tips), Muilla maritima, and others.

Moderate grazing is normally

compatible with habitat for the bay

checkerspot, since grazing can reduce

the density and height of nonnative

plants that compete with the native

plants supporting the butterfly.

Adult bay checkerspots are capable of

dispersing over long distances.

Movements of more than 5.6 kilometers

(km) (3.5 miles (mi)) have been

documented (Harrison 1989; Service

1998). In all dispersal observations and

experiments, long-distance movements

are hard to detect, and thus their

frequency and importance are difficult

to quantify. Long-distance dispersal,

especially by fertilized females carrying

eggs, is likely to be important to the

natural reestablishment of bay

checkerspot populations that have

disappeared. Qualitative observations

suggest that bay checkerspots move

readily over suitable grassland habitat,

but are more reluctant to cross scrub,

woodland, or other unsuitable habitat.

Roads, especially those traveled more

heavily and at higher speeds, present a

risk of death or injury to dispersing bay

checkerspots. Where corridors that

facilitate dispersal exist, they may

support the persistence of bay

checkerspot populations.

The bay checkerspot’s life cycle is

closely tied to host plant biology. Host

plants germinate anytime from early

October to late December, and senesce

(dry up and die) from early April to mid

May. Most of the active parts of the bay

checkerspot life cycle also occur during

this period. Adults emerge from pupae

(a transitional stage between caterpillar

and adult butterfly) in early spring, and

feed on nectar, mate, and lay eggs

during a flight season that typically lasts

for 4 to 6 weeks in the period between

late February to early May. The eggs

hatch and the tiny larvae feed for about

2 to 3 weeks before entering diapause (a

temporary cessation of development) in

mid to late spring. The postdiapause

larvae emerge after winter rains

stimulate germination of Plantago, and

feed and bask until they are large

enough to pupate and emerge as adults

(Service 1998).

Previous Federal Action

On October 21, 1980, we were

petitioned by Dr. Bruce O. Wilcox,

Dennis D. Murphy, and Dr. Paul R.

Ehrlich to list the bay checkerspot as an

endangered species. We published a

Notice of Status Review on February 13,

1981 (46 FR 12214). Following our

status review, we found that listing the

bay checkerspot was warranted but

precluded by other pending listing

actions (49 FR 2485). We proposed the

bay checkerspot for listing as

endangered with critical habitat on

September 11, 1984 (49 FR 35665), and

listed the species as threatened on

September 18, 1987 (52 FR 35366). At

the time of listing, because of difficulty

in resolving the value of specific

habitats to the species and assessing the

activities being conducted in those

areas, we concluded that critical habitat

was not determinable. We published a

Recovery Plan for Serpentine Soil

Species of the San Francisco Bay Area

(Recovery Plan) in September 1998 that

includes the bay checkerspot (Service

1998), as required under section 4(f) of

the Endangered Species Act of 1973, as

amended (Act) (16 U.S. C. 1531 et seq.).

On June 30, 1999, the Center for

Biological Diversity filed a complaint

against us challenging our critical

habitat findings for seven species,

including the bay checkerspot. On

August 30, 2000, the United States

District Court for the Northern District

of California (Southwest Center for

Biological Diversity v. Bruce Babbitt, et

al., CIV 99–3202 SC) ruled on several of

the species involved, including the bay

checkerspot. The court ordered us to

propose critical habitat within 60 days

of the ruling and to finalize the

designation within 120 days of the

proposed designation.

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

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) which may

require special management

consideration or protection, and (ii)

specific areas outside the geographic

area occupied by a species at the time

it is listed, upon determination that

such areas are essential for the

conservation of the species.

‘‘Conservation’’ means the use of all

methods and procedures that are

necessary to bring an endangered

species or a threatened species to the

point at which listing under the Act is

no longer necessary.

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

we base critical habitat proposals upon

the best scientific and commercial data

available, after taking into consideration

the economic impact, and any other

relevant impact, of specifying any

particular area as critical habitat. We

may exclude areas from critical habitat

designation when the benefits of

exclusion outweigh the benefits of

including the areas within critical

habitat, provided the exclusion will not

result in the extinction of the species

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

Designation of critical habitat can

help focus conservation activities for a

listed species by identifying areas that

contain the physical and biological

features essential for the conservation of

that species. Designation of critical

habitat alerts the public as well as landmanaging agencies to the importance of

these areas.

Critical habitat also identifies areas

that may require special management

considerations or protection, and may

provide protection to areas where

significant threats to the species have

been identified. Critical habitat receives

protection from destruction or adverse

61220 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

modification through required

consultation under section 7 of the Act

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

conferences on Federal actions that are

likely to result in the adverse

modification or destruction of proposed

critical habitat. Aside from the

protection that may be provided under

section 7, the Act does not provide other

forms of protection to lands designated

as critical habitat.

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

Federal agencies to consult with us to

ensure that any action they authorize,

fund, or carry out is not likely to

jeopardize the continued existence of a

threatened or endangered species, or

result in the destruction or adverse

modification of critical habitat. In 50

CFR 402.02, ‘‘jeopardize the continued

existence’’ (of a species) is defined as

engaging in an activity likely to result in

an appreciable reduction in the

likelihood of survival and recovery of a

listed species. ‘‘Destruction or adverse

modification’’ (of critical habitat) is

defined as a direct or indirect alteration

that appreciably diminishes the value of

critical habitat for the survival and

recovery of the listed species for which

critical habitat was designated. Thus,

the definitions of ‘‘jeopardy’’ to the

species and ‘‘adverse modification’’ of

critical habitat are nearly identical.

Critical habitat identifies specific

areas that have features that are

essential to the conservation of a listed

species and that may require special

management considerations or

protection. The proposed critical habitat

areas are considered essential to the

conservation of the bay checkerspot

butterfly as described in the Recovery

Plan (Service 1998). However,

designating critical habitat does not, in

itself, lead to recovery of a listed

species. Designation does not create a

management plan, establish numerical

population goals, or prescribe specific

management actions (inside or outside

of critical habitat). Specific management

recommendations for areas designated

as critical habitat are most appropriately

addressed in recovery, conservation,

and management plans, and through

section 7 consultations and section 10

permits.

Methods

In determining areas that are essential

to conserve the bay checkerspot, we

used the best scientific information

available to us. This information

included habitat suitability and sitespecific species information. We have

emphasized areas of current and

historical bay checkerspot occurrences,

especially larger sites in proximity to

known occurrences. To maintain genetic

and demographic interchange that will

help maintain the viability of a regional

metapopulation, we included corridor

areas that allow movement between

populations. Dispersal is a crucial

function for a species with

metapopulation dynamics like the bay

checkerspot.

We used data on known and historic

locations and maps of serpentine soils

to identify potentially important areas.

Then, through the use of 1990s digital

orthophotos available through the Bay

Area Digital GeoResource (BADGER)

website (http://badger.parl.com), and

limited ground checking, we estimated

the current extent of suitable breeding

habitat. We included in critical habitat

both suitable habitat and areas that link

suitable breeding habitat, since these

links facilitate movement of individuals

between habitat areas, and are important

for dispersal and gene flow and thus to

the conservation of the species.

Our 1984 proposal to list the bay

checkerspot butterfly with critical

habitat (49 FR 35665) proposed five

critical habitat zones. Four of the five

are included in this proposal, with

modifications based on improved

knowledge of the biology and habitat of

the species. Since the original proposal,

the fifth zone (Woodside Zone) has been

mostly converted to housing, so we are

no longer proposing it for designation as

critical habitat. Since 1984, a great deal

of literature on the bay checkerspot

butterfly, both published and

unpublished, has added to our

understanding of the species (see

literature cited in Service 1998; Weiss

1999; Weiss and Launer 2000). Based on

this expanded information, we have

been able to identify habitats and

populations that were poorly

documented before the mid-1980s, and

assess their significance. Besides the

four previously identified critical

habitat zones, this critical habitat

proposal identifies 11 additional habitat

units essential to the conservation of the

bay checkerspot, for a total of 15 critical

habitat units.

Primary Constituent Elements

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

of the Act and regulations at 50 CFR

424.12(b), in determining which areas to

propose as critical habitat, we must

consider those physical and biological

features (primary constituent elements)

that are essential to the conservation of

the species. These include, but are not

limited to space for individual and

population growth and for normal

behavior; food, water, or other

nutritional or physiological

requirements; cover or shelter; sites for

breeding, reproduction, or rearing of

offspring; and habitats that are protected

from disturbance or are representative of

the historic geographical and ecological

distributions of a species.

The primary constituent elements of

critical habitat for the bay checkerspot

are those habitat components that are

essential for the primary biological

needs of foraging, sheltering, breeding,

maturation, and dispersal. The areas we

propose to designate as critical habitat

provide some or all of the known

primary constituent elements for the

species, which include: areas of open

grassland; stands of Plantago erecta,

Castilleja exserta, or Castilleja

densiflora; spring flowers providing

nectar; pollinators of the bay

checkerspot’s food and nectar plants;

soils derived from serpentinic rock;

stable holes or cracks in the soil and

surface rocks or rock outcrops; wetlands

providing moisture during times of

spring drought; and space for dispersal

between habitable areas. In addition,

topography with varied slopes and

aspects is a primary constituent element

to be conserved when it is present in

combination with one or more of the

primary constituent elements above.

Appropriate grassland vegetation

provides cover for larvae, pupae and

adults, egg-laying stimuli and sites for

females, and adequate open ground for

larvae to be able to crawl efficiently in

search of foraging, basking, diapause, or

pupation sites (Service 1998). Stands of

food plants, including nectar plants, are

important in the butterfly’s life cycle.

The bay checkerspot’s primary larval

food plant is Plantago erecta, an annual,

native plantain. The larvae also often

use a secondary food plant species,

usually either Castilleja (Orthocarpus)

densiflora (purple owl’s-clover) or

Castilleja exserta (Orthocarpus

purpurascens) (exserted paintbrush).

These secondary food plants tend to

remain edible later in the season than

the plantain. Bay checkerspot adults

benefit from visiting flowers for nectar.

Nectar plants commonly visited include

Lomatium spp. (desertparsley),

Lasthenia californica (= chrysostoma)

(California goldfields), Layia platyglossa

(tidy-tips), Muilla maritima, and others.

Adequate native pollinators to sustain

populations of Castilleja and nectar

species, including but not limited to

such groups as bumblebees and solitary

bees, are important to the value of

critical habitat because these plants are

dependent on pollinators to reproduce

and perpetuate their populations in the

area. Plantago erecta is thought to be

self-pollinating.

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61221

The butterfly usually is found

associated with grasslands on

serpentine soils, such as the Montara

soil series. In Santa Clara County, the

Inks and Climara soil series are related

soils and often have inclusions of

Montara (U.S. Soil Conservation Service

1974). Henneke and other serpentine

soils also occur within the range of the

butterfly. Serpentine soils often support

other primary constituent elements, but

they are not limited to serpentine soils.

Soil structure with stable holes or cracks

and surface rocks or rock outcrops

provide cover and shelter for bay

checkerspot larvae seeking diapause

sites and basking sites.

Bay checkerspot adults have been

observed to fly considerable distances

during drought conditions to draw

water or solutes from moist soils around

wetlands (‘‘puddling,’’ Launer et al.

1993). Triggering of the puddling

behavior by drought conditions suggests

it is a directed, adaptive behavior, and

that the butterflies are seeking out moist

areas during times of water or heat

stress to obtain essential nutrients or

water.

Adult bay checkerspots are capable of

dispersing over long distances.

Movements of more than 5.6 kilometers

(km) (3.5 miles (mi)) have been

documented (see Service 1998), and

longer movements are possible. Adult

dispersal, especially by fertilized

females carrying eggs, is vital to the

maintenance of natural bay checkerspot

metapopulation structure, which

requires reestablishment or

replenishment of populations that are at

or near local extinction. Roads,

especially those traveled more heavily

and at higher speeds, present a risk of

death or injury to dispersing bay

checkerspots. Where open spaces exist

that facilitate dispersal, they may

support the persistence of bay

checkerspot populations and

metapopulations. Some habitats or land

uses are thought to be more suitable for

dispersal than others; for example,

grassland may be more readily crossed

than woodland or landscaped areas. But

documented long-distance movements

demonstrate that the butterfly is

sometimes capable of crossing a variety

of substrates (Service 1998).

Topographic diversity provides

opportunities for early season warmth

as well as cool north- and east-facing

slopes that are a refuge for the species

during droughts. Bay checkerspot larvae

develop more rapidly when they can

bask in sunlight that penetrates shortstatured grassland vegetation. Adults

also use warm exposures for basking,

and find early season nectar plants on

warm south- and west-facing slopes.

Criteria Used To Identify Critical

Habitat

In an effort to map areas that have the

features essential to the conservation of

the species, we used data on known bay

checkerspot locations and conservation

planning areas that were identified in

the final recovery plan (Service 1998) as

essential for the recovery of the species.

We also considered the existing status

of lands in designating areas as critical

habitat. The bay checkerspot is known

to occur on State, county, and private

lands. The range of critical habitat

extends in the south from the San

Martin area, in Santa Clara County,

north to San Bruno Mountain in San

Mateo County. We could not depend on

Federal lands for critical habitat

designation because we are not

currently aware of any Federal lands

within the range of the bay checkerspot

that can be inhabited by the butterfly.

We are not aware of any Tribal lands in

or near our proposed critical habitat

units for the bay checkerspot. However,

should we learn of any Tribal lands in

the vicinity of the critical habitat

designation subsequent to this proposal,

we will coordinate with the Tribes

before making a final determination as

to whether any Tribal lands should be

included as critical habitat for the bay

checkerspot.

Section 10(a) of the Act authorizes us

to issue permits to take listed species

incidental to otherwise lawful activities.

An incidental take permit application

must be supported by a habitat

conservation plan (HCP) that identifies

conservation measures that the

permittee agrees to implement for the

species to minimize and mitigate the

impacts of the requested incidental take.

One small, short-term HCP covers the

bay checkerspot in about 10 acres of

critical habitat through November 2001.

This HCP permits temporary projectrelated impacts from electric

transmission line work. To date, project

construction anticipated to affect the

bay checkerspot is substantially

complete (see the Relationship to

Habitat Conservation Plans section

below for additional information on the

relationship between HCPs and critical

habitat designation).

In defining critical habitat boundaries,

we made an effort to avoid developed

areas, such as towns and other similar

lands, that are unlikely to contribute to

bay checkerspot conservation. However,

the minimum mapping unit that we

used did not allow us to exclude all

developed areas, such as towns, or

housing developments, or other lands

unlikely to contain the primary

constituent elements essential for

conservation of the bay checkerspot.

Existing features and structures within

the boundaries of the mapped units,

such as buildings, roads, aqueducts,

railroads, airports, other paved areas,

lawns, and other urban landscaped

areas will not contain one or more of the

primary constituent elements. Federal

actions limited to those areas, therefore,

would not trigger a section 7

consultation, unless they affect the

species and/or primary constituent

elements in adjacent critical habitat.

Proposed Critical Habitat Designation

The approximate area encompassing

proposed critical habitat by land

ownership is shown in Table 1. Lands

proposed are under private and State

and local ownership. The species is not

known to occur or to have historically

occurred on Federal lands. Lands

proposed as critical habitat have been

divided into 15 Critical Habitat Units.

Critical habitat proposed for the bay

checkerspot includes 10,597 hectares

(ha) (26,182 acres (ac)), with 806 ha

(1,992 ac) in San Mateo County and

9,791 ha (24,190 ac) in Santa Clara

County. Because the bay checkerspot is

nearly confined to island-like patches of

habitat, its critical habitat is easily

categorized into separate areas or units

(see maps). We present brief

descriptions of each unit, and our

reasons for proposing it as critical

habitat, below.

Conserving the butterfly includes the

need to reestablish historic populations

of the species to areas within several of

the units, in order to secure the butterfly

in representative sites in its former

range, and in a range of habitat and

climate conditions. Returning the

butterfly to good representatives of its

former diversity of sites and habitat and

climate conditions is necessary to

reduce the long-term risk of range-wide

extinction of the species (Service 1998).

61222 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

TABLE 1.—APPROXIMATE CRITICAL HABITAT IN HECTARES (HA) AND ACRES (AC) BY COUNTY AND LAND OWNERSHIP

[Area estimates reflect critical habitat unit boundaries; however, not all the areas within those broad boundaries, such as cities, towns, or other

developments, contain habitat features considered essential to the survival of the bay checkerspot butterfly]

County Federal Local/State Private Total

San Mateo ....................................................................................................... 0 519 ha

(1,283 ac)

287 ha

(709 ac)

806 ha

(1,992 ac)

Santa Clara ...................................................................................................... 0 1,704 ha

(4,210 ac)

8,087 ha

(19,980 ac)

9,791 ha

(24,190 ac)

Total ................................................................................................................. 0 2,223 ha

(5,493 ac)

8,374 ha

(20,689 ac)

10,597 ha

(26,182 ac)

Unit 1. Edgewood Park/Triangle Unit

Occurring in San Mateo County, this

unit comprises 217 ha (535 ac) in T.5 S.,

R.4 W. (Mount Diablo meridian/base

line). Included is most of Edgewood

Natural Preserve, a county park

southeast of the junction of Edgewood

Road and I–280, and watershed lands of

the San Francisco Water Department

within the triangle formed by I–280,

Edgewood Road, and Canada Road, as

well as a small additional area of

serpentine soil on the west side of

Canada Road. Much of this area also

falls within the San Francisco State Fish

and Game Refuge. The area supports the

Edgewood population of the butterfly

discussed in the species’ recovery plan,

which is the main population of the San

Mateo metapopulation of the bay

checkerspot (Service 1998). Without the

Edgewood population the San Mateo

metapopulation would almost certainly

go extinct, resulting in the loss of one

of only two metapopulations of the bay

checkerspot and a significant range

reduction for the species. This

population is also the northernmost

remaining population of the species.

The unit contains considerable areas of

good habitat, although additional

management attention may be needed

for the butterfly to thrive here.

Unit 2. Jasper Ridge Unit

Occurring within San Mateo County,

the unit covers 287 ha (709 ac) in

Stanford University’s Jasper Ridge

Biological Preserve, in T.6 S., R.3 W.

(Mount Diablo meridian/base line).

There are decades of data and dozens of

published scientific papers about the

Jasper Ridge population of the bay

checkerspot. The population has

declined severely in recent years, and

may now be extirpated. However, we

are confident that a stable population of

the species can be restored to Jasper

Ridge. The Jasper Ridge population is

essential as a supporting element of the

San Mateo metapopulation, and a

backup to the Edgewood and

prospective San Bruno Mountain

populations.

Unit 3. San Bruno Mountain Unit

This unit also occurs in San Mateo

County, with approximately 303 ha (749

ac) in T.3 S., R.5 W. (Mount Diablo

meridian/base line), above the 152 m

(500 ft) elevation contour and east of the

western Pacific Gas and Electric

transmission corridor on San Bruno

Mountain. This unit is mostly within

San Bruno Mountain State and County

Park, and is inside the boundaries of the

San Bruno Mountain Area Habitat

Conservation Plan area. The bay

checkerspot formerly inhabited this

area, but is believed to have been

extirpated around 1986 by a

combination of factors, including overcollection and a fire that burned its

habitat. However, this unit has

supported a substantial bay checkerspot

population in the past, and it is

reasonable to expect that the butterfly

can be reestablished here.

San Bruno Mountain represents the

most northerly part of the species’

former range on the San Francisco

peninsula with reasonably good

conditions to support the butterfly. The

San Bruno Mountain unit is essential as

a supporting element of the San Mateo

metapopulation and a backup to the

Edgewood and Jasper Ridge

populations.

Unit 4. Bear Ranch Unit

The Bear Ranch unit, totaling 250 ha

(618 ac), lies west of Coyote Lake

(Coyote Reservoir) in the eastern hills of

the Santa Clara Valley, in southern

Santa Clara County (T.9 S., R.4 E. and

T.10 S., R.4 E., Mount Diablo meridian/

base line). The unit is named for a

ranching property that partly occurs in

the unit. The ranch and lands, including

and surrounding the unit, are now

owned and managed by the Santa Clara

County Parks and Recreation

Department. This location represents

one of the most recent population

discoveries of the bay checkerspot and

has been documented for several years

as a persistent population. The

population is also one of the most

southerly occurrences of the butterfly. It

lies about 10 km (6 mi) southeast of the

Kirby core population area described in

the recovery plan, with some

intervening habitable areas and

adequate dispersal corridors. Over 40 ha

(100 ac) of mapped serpentine soils in

several large to small patches occur

within the unit. In addition to the

significance of its position establishing

the outer perimeter of the range of the

species, the recovery plan makes the

protection of large, good quality habitat

areas near core populations, such as

this, a high priority (Service 1998).

Unit 5. San Martin Unit

This unit includes 237 ha (586 ac)

west of San Martin, in the western

foothills of the Santa Clara Valley in

southern Santa Clara County (T.9 S., R.3

E). Included in the designated critical

habitat are extensive areas of serpentine

soils and intervening areas that may

support habitat or be needed for

dispersal. Regular occupation of the unit

by the bay checkerspot has been

documented, although no recent

quantitative surveys are available of this

population. The unit lies entirely on

private lands in unincorporated Santa

Clara County, about 6.4 km (4 mi) westsouthwest of the Bear Ranch unit and 11

km (7 mi) south of the Kirby core area.

This is the second population at the

southern periphery of the range. The

recovery plan makes the protection of

large, good quality habitat areas near

core populations, such as this, a high

priority (Service 1998). We are not

aware of any public lands in the unit.

Unit 6. Communications Hill Unit

Communications Hill, and adjacent

hilltops in south-central San Jose, are

formed by outcroppings of serpentine

rock, with grasslands capable of

supporting the bay checkerspot. This

unit occurs in Santa Clara County and

covers 179 ha (443 ac) of mostly

undeveloped land. It also crosses a

major road and railroad tracks, and

includes a quarry that we believe, after

appropriate reclamation, could be

restored to bay checkerspot habitat. The

butterfly has been documented on

Communications Hill in the past, but no

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61223

recent comprehensive surveys for the

species have been conducted in the

area. Whether the unit is currently

occupied is not known. The recovery

plan calls for conservation of larger

habitat areas currently or historically

occupied by the bay checkerspot. This

location also represents the

northwestern-most remnant of the Santa

Clara County metapopulation. The unit

is surrounded by Curtner Avenue,

Almaden Expressway, Hillsdale

Avenue, and Monterey Road (T.7 S., R.1

E., Mount Diablo meridian/base line).

Much of this unit lies on private lands

within unincorporated lands, with a

smaller area in the City of San Jose.

Portions of a Santa Clara County

communications facility and a San Jose

water company facility may fall within

the unit. Only currently undeveloped

areas supporting the primary

constituent elements of habitat for the

butterfly would be subject to regulatory

oversight of any Federal actions.

Unit 7. Kalana Hills Unit

The Kalana Hills unit in Santa Clara

County comprises 240 ha (592 ac) on the

southwest side of the Santa Clara Valley

between Laguna Avenue and San Bruno

Avenue (T.9 S., R.2 E, Mount Diablo

meridian/base line). Four serpentine

outcrops form hills or hillsides in this

area. At least one population of the bay

checkerspot has been documented on

one or all of these outcrops in recent

surveys. This unit also includes

intervening areas that connect the

outcrops. The Coyote Ridge unit lies

about 3.2 km (2 mi) to the northeast, the

Santa Teresa unit about 2 km (1.2 mi)

to the northwest, the San Vicente-Calero

unit about 3.2 km (2 mi) to the west, and

the Morgan Hill unit about 3.2 km (2 mi)

to the southeast. Because of its

proximity to several other, large

population centers for the butterfly, we

expect the Kalana Hills unit to be

regularly occupied by the species. If, as

is possible given the bay checkerspot’s

large population swings, the butterfly’s

population in the unit were to die out,

it is likely to be quickly reestablished by

bay checkerspots immigrating from

adjacent sites. We are not aware of any

public lands in the unit. A portion of

the largest and northernmost serpentine

outcrop is within the limits of the City

of San Jose; the remainder of the unit is

on private lands in unincorporated

Santa Clara County.

Unit 8. Kirby Unit

The Kirby critical habitat unit

includes 2,855 ha (7,053 ac) along the

southern portion of ‘‘Coyote Ridge’’ in

Santa Clara County (T.8 S., R.2 E., T.8

S., R.3 E., and T.9 S., R.3 E., Mount

Diablo meridian/base line). It contains

the Kirby area for the bay checkerspot

discussed in the species’ Recovery Plan

(Service 1998). The ridge, informally

known as Coyote Ridge, runs northwest

to southeast, parallel to and east of

Highway 101 from Yerba Buena Road to

Anderson Reservoir in Santa Clara

County, and forms the eastern slope of

the Santa Clara Valley (U.S. Geological

Survey (USGS) 7.5 minute quadrangles

San Jose East, Lick Observatory, Santa

Teresa Hills, and Morgan Hill. The ridge

is not named on these maps). Coyote

Ridge also parallels the Silver Creek

Fault and Silver Creek itself. Extensive

serpentine soil areas, and four

population areas for the bay checkerspot

(Kirby, Metcalf, San Felipe, and Silver

Creek Hills), lie on or adjacent to this

ridge and fault system (Service 1998).

Metcalf Canyon, Silver Creek, and

nonserpentine soil areas create natural

divisions among these four population

areas. The Kirby unit is the

southernmost of four critical habitat

units corresponding to the four

population areas along Coyote Ridge,

and runs along this ridge east of

Highway 101 and Coyote Creek from

Metcalf Canyon south to Anderson

Lake. The northern boundary of the

Kirby unit abuts the Metcalf unit. The

northwest tip of the Kirby unit also

connects to the Tulare Hill Corridor

unit.

The Kirby critical habitat unit

regularly supports one of the largest

populations of the bay checkerspot, and

is considered one of the centers of the

species’ Santa Clara County

metapopulation. The recovery plan

considers protection of the area of the

highest priority for conservation of the

species. The unit contains several

hundred acres of diverse serpentine

grassland habitat as well as nectaring

areas, seasonal wetlands, and dispersal

areas. The unit includes lands within

the limits of the City of San Jose, private

lands in unincorporated Santa Clara

County, and small areas in the City of

Morgan Hill. Public lands in this unit

include the Santa Clara County Field

Sports Park and portions of Santa Clara

County Motorcycle Park, Anderson Lake

County Park, Coyote Creek Park, and

lands of the Santa Clara Valley Water

District. A 101 ha (250 ac) reserve,

leased by Waste Management Inc. on

behalf of the Kirby Conservation Trust

to further conservation of the bay

checkerspot, also falls within the unit.

The Kirby Conservation Trust has

funded extensive research on the bay

checkerspot for more than a decade at

the lease site, greatly improving our

understanding of the ecology,

population dynamics, and conservation

needs of the species (see literature cited

in Service 1998).

Unit 9. Morgan Hill Unit

The Morgan Hill unit in Santa Clara

County includes 374 ha (925 ac)

northwest of the City of Morgan Hill in

Santa Clara County (T.9 S., R.2 E., T.9

S., R.3 E., Mount Diablo meridian/base

line) . It lies less than 3.2 km (2 mi)

southwest of the Coyote Ridge unit and

about 3.2 km (2 mi) southeast of the

Kalana Hills unit. This is the area

described as ‘‘north of Llagas Avenue’’

in our 1998 recovery plan. The unit is

partly within the limits of the City of

Morgan Hill and partly on private lands

in unincorporated Santa Clara County.

Murphy Springs Park, a small city park,

is within the unit. The Morgan Hill unit

has large areas of serpentine soils and

grassland with a variety of slope

exposures, suitable for the bay

checkerspot. The unit has been

documented to be occupied by the

butterfly in the past, as well as in more

recent surveys in the past 2 to 3 years.

Because of its large habitat area and

proximity to core populations of the bay

checkerspot, the recovery plan

considers protection of this area

essential to the conservation of the

species (Service 1998).

Unit 10. Metcalf Unit

This unit includes 1,616 ha (3,994 ac)

in Santa Clara County, east of Highway

101, south of Silver Creek Valley Road,

north of Metcalf Canyon, and west of

Silver Creek (T.8 S., R.2 E., Mount

Diablo meridian/base line). The unit

contains the Metcalf population area for

the bay checkerspot, one of the four

largest habitat areas and three largest

current population centers for the

butterfly (Service 1998). Hundreds of

acres of serpentine soils and thousands

of bay checkerspots occur within the

unit. This area is considered one of the

centers of the species’ Santa Clara

County metapopulation. The recovery

plan considers protection of the area of

the highest priority for conservation of

the butterfly. This unit adjoins the Kirby

unit to the south, San Felipe unit to the

east, Silver Creek Hills unit to the north,

and Tulare Hill Corridor unit to the

west, and provides crucial habitat

connectivity for butterfly dispersal

among these areas. The Metcalf unit lies

in the City of San Jose and on private

lands in unincorporated Santa Clara

County. Portions of Santa Clara County

Motorcycle Park, Coyote Creek Park,

and lands of Santa Clara Valley Water

District fall within the unit.

61224 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Unit 11. San Felipe Unit

This unit includes 404 ha (998 ac) in

Santa Clara County, southwest of San

Felipe Road and north of Metcalf Road

(T.8 S., R.2 E., Mount Diablo meridian/

base line), primarily on private lands in

unincorporated county lands, but also

within San Jose city limits. The unit

contains the San Felipe population area

for the bay checkerspot, one of the four

largest habitat areas and three largest

current population centers for the

butterfly (Service 1998). This area is

considered one of the centers of the

species’ Santa Clara County

metapopulation. The recovery plan

considers protection of the area of the

highest priority for conservation of the

butterfly. Several hundred acres of

serpentine soils occur within the unit

with nectaring and dispersal areas. We

are not aware of any public lands in the

unit.

Unit 12. Silver Creek Unit

The Silver Creek unit comprises 700

ha (1,730 ac), primarily within the

limits of the City of San Jose, but with

some area on private lands in

unincorporated Santa Clara County (T.7

S., R.1 E., T.7 S., R.2 E., T.8 S., R.2 E.,

Mount Diablo meridian/base line). This

unit is surrounded by Highway 101 and

Coyote Creek on the west, Yerba Buena

Road on the north, Silver Creek on the

east and northeast, and Silver Creek

Valley Road on the south. The unit

includes the Silver Creek Hills

population area for the bay checkerspot

(Service 1998). It includes nearly 400 ha

(1,000 ac) of contiguous serpentine

soils, as well as other scattered

serpentine outcrops, as well as habitat

less suitable for breeding but needed for

nectar-feeding or dispersal. Small areas

of public lands in this unit include

portions of Coyote Creek Park and Silver

Creek Linear Park. A 52 ha (128 ac)

private bay checkerspot preserve

dedicated by Shea Homes, the Silver

Creek Valley Country Club Butterfly

Habitat Reserve, lies within this unit.

Also included is the proposed Ranch on

Silver Creek development, a 28 ha (70

ac) preserve proposed by William Lyon

Homes (former Presley Homes), and the

proposed Ryland Homes Silver Ridge

development and private open space.

Several electric transmission lines and

two major natural gas lines cross the

unit. Not all of the area within the unit

is capable of supporting the butterfly or

its primary constituent elements, and

such areas would not be subject to

section 7 consultation. However, we

have included these areas in the critical

habitat designation in the interests of

having a clear boundary that is readily

located on the ground, or because of

mapping uncertainties.

In the last several years, a small

population of the bay checkerspot has

been documented in the Silver Creek

unit, and the area has a long history of

much larger populations. Portions of the

unit known to have been inhabited by

the butterfly in the past have not been

surveyed recently, or are currently in

degraded condition, or both. We believe

that the Silver Creek Hills population is

likely to increase, and that much of the

degraded area could be restored to

useful breeding habitat. The Silver

Creek unit has extensive, diverse, and

high-quality habitat, and represents the

northernmost unit of the Santa Clara

County metapopulation. The Silver

Creek unit provides a population

reservoir critical to the survival of the

Santa Clara County metapopulation of

bay checkerspots—the larger and more

viable of the two remaining

metapopulations (Service 1998).

Unit 13. San Vicente-Calero Unit

The San Vicente-Calero unit contains

759 ha (1,875 ac) within and to the west

of Calero County Park, Santa Clara

County (T.8 S., R.1 E., T.8 S., R.2 E., T.9

S., R.1 E., and T.9 S., R.2 E., Mount

Diablo meridian/base line). This area

supports a known population of the bay

checkerspot in a large area of goodquality habitat; other areas within the

unit that are apparently suitable for the

butterfly have not been surveyed. The

unit is also within butterfly dispersal

distance of the Santa Teresa Hills unit

(see below), which we consider to be

capable of supporting a very large

population of the butterfly, and the

Kalana Hills unit (number 9, above),

which are themselves accessible to and

from other units. Therefore we believe

the San Vicente-Calero population can

contribute significantly to maintaining

the Santa Clara County metapopulation

of the bay checkerspot. For all these

reasons the recovery plan considers

protection of this area essential to the

conservation of the species. The unit is

south of McKean Road and east of the

town of New Almaden, Almaden Road,

and Alamitos Creek. It lies about 1.6 km

(1 mi) south of the Santa Teresa unit

and about 3.2 km (2 mi) west of the

Kalana Hills unit. Portions of the unit

outside the county park are within the

limits of the City of San Jose.

Unit 14. Santa Teresa Hills Unit

The Santa Teresa Hills unit includes

1,821 ha (4,500 ac) in Santa Clara

County (T.8 S., R.1 E. and T.8 S., R.2 E.,

Mount Diablo meridian/base line) with

extensive areas of serpentine soils.

Portions of the Santa Teresa Hills are

known to support the butterfly now, and

have supported the species in the past,

but no current comprehensive survey of

the butterfly in the area is available. We

believe that the Santa Teresa Hills could

support a significant population of bay

checkerspots. In addition to adding a

fifth substantial population to the Santa

Clara County metapopulation,

conservation and management of the

Santa Teresa Hills population would

support development of a strong

population of the butterfly in a slightly

cooler, moister area of the county, at a

site that may experience less air

pollution than the more eastern units.

The Santa Teresa Hills critical habitat

unit is intended to include most

undeveloped habitat in the area, as well

as intervening areas that are unsurveyed

or less suitable but needed for dispersal

among higher-quality areas. The unit

lies north of Bailey Avenue, McKean

Road, and Almaden Road, south of

developed areas of the city of Santa

Clara, and west of Santa Teresa

Boulevard. The unit abuts the Tulare

Hill Corridor unit.

Unit 15. Tulare Hill Corridor Unit

The Tulare Hill Corridor unit, 355 ha

(876 ac) in Santa Clara County, connects

the Coyote Ridge (Kirby and Metcalf,

and through them, San Felipe and Silver

Creek) and Santa Teresa units. Tulare

Hill is a prominent serpentine hill that

rises from the middle of the Santa Clara

Valley in southern San Jose, west of the

crossing of Metcalf Road and Highway

101 (T.8 S., R.2 E., Mount Diablo

meridian/base line). Extensive habitat

on the hill is currently occupied by the

bay checkerspot, and is essential both as

a population center and for dispersal

across the valley. The Metcalf and Kirby

populations of the bay checkerspot lie

less than 1 kilometer (0.62 mi) to the

northeast, separated by a major highway

and a narrow band of other unfavorable

habitat. The Santa Teresa Hills

population area for the species lies

about 2 km (1.2 mi) to the southwest,

with dispersal habitat in between. We

believe the long-term viability of the bay

checkerspot depends on the presence of

a corridor for dispersal of adults to and

from the Santa Teresa Hills and Coyote

Ridge (Service 1998). Tulare Hill is an

ideal location for such a corridor

because of the narrow extent of the

valley and the development in this

location, the presence of high elevations

on the hill that may attract butterflies

over busy roads and developed areas,

and the presence of suitable habitat on

Tulare Hill itself. Migrant butterflies

from either Santa Teresa Hills or Coyote

Ridge may settle on Tulare Hill,

contributing individuals and genetic

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61225

diversity to the population there, and

adults from Tulare Hill may migrate to

the adjacent habitat areas.

Public lands within the designated

unit include parts of Coyote Creek Park,

Metcalf Park, and Santa Teresa County

Park. Roughly half of Tulare Hill itself

is within the limits of the City of San

Jose, the remainder on private lands in

unincorporated Santa Clara County.

Several major electrical transmission

lines cross the unit. Some areas within

the unit are not inhabited by bay

checkerspot individuals but can

function as dispersal corridor.

Effects of Critical Habitat Designation

Section 7 Consultation

Section 7(a) of the Act requires that

Federal agencies, including the Service,

must ensure that actions they fund,

authorize, or carry out do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

States, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding.

Under section 7(a) of the Act, Federal

agencies, including the Service, 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 designated or

proposed. Regulations implementing

this interagency cooperation provision

of the Act are codified at 50 CFR part

402. Section 7(a)(4) and regulations at

50 CFR 402.10 requires Federal agencies

to confer with us on any action that is

likely to jeopardize the continued

existence of a proposed species or result

in destruction or adverse modification

of proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory.

We may issue a formal conference

report if requested by a Federal agency.

Formal conference reports on proposed

critical habitat contain a biological

opinion that is prepared according to 50

CFR 402.14, as if critical habitat were

designated. If such designation occurs,

we may adopt the formal conference

report as a biological opinion, if no

significant new information or changes

in the action alter the content of the

opinion (see 50 CFR 402.10(d)).

When a species is listed or critical

habitat is designated, section 7(a)(2)

requires Federal agencies to ensure that

activities they authorize, fund, or carry

out are not likely to jeopardize the

continued existence of the 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 must enter

into consultation with us. Through this

consultation, we would advise the

agencies whether the permitted actions

would likely jeopardize the continued

existence of the species or destroy or

adversely modify critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

provide reasonable and prudent

alternatives to the project, if any are

identifiable. Reasonable and prudent

alternatives are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid the

likelihood of jeopardizing the continued

existence of listed species or resulting in

the destruction or adverse modification

of critical habitat. Reasonable and

prudent alternatives can vary from

slight project modifications to extensive

redesign or relocation of the project.

Costs associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conferencing with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat or

adversely modify or destroy proposed

critical habitat.

Activities on private or State lands

requiring a permit from a Federal

agency, such as a permit from the U.S.

Army Corps of Engineers (Corps) under

section 404 of the Clean Water Act, or

a section 10(a)(1)(B) permit from the

Service, or some other Federal action,

including funding (e.g., from the Federal

Highway Administration (FHWA) or

Federal Emergency Management Agency

(FEMA)) will also be subject to the

section 7 consultation process. Federal

actions not affecting listed species or

critical habitat, and actions on nonFederal lands that are not federally

funded, authorized, or permitted do not

require section 7 consultation. Not all of

the areas within some of the units are

capable of supporting the butterfly or its

primary constituent elements, and such

areas would not be subject to section 7

consultation. However, in the interests

of having a clear boundary that is

readily located on the ground, or

because of mapping uncertainties, we

have included some areas that may not

be critical habitat within some units

described below.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species concerned. Designation of

critical habitat in areas occupied by the

bay checkerspot is not likely to result in

a significant regulatory burden above

that already in place due to the presence

of the listed species. For some

previously reviewed actions in

instances where critical habitat is

subsequently designated. In those cases

where activities occur on designated

critical habitat where bay checkerspot

are not found at the time of the action,

an additional section 7 consultation

with the Service not previously required

may be necessary for actions funded,

authorized, or carried out by Federal

agencies.

Section 4(b)(8) of the Act requires us

to briefly describe and evaluate in any

proposed or final regulation that

61226 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

designates critical habitat those

activities involving a Federal action that

may adversely modify such habitat or

that may be affected by such

designation. When determining whether

any of these activities may adversely

modify critical habitat, we base our

analysis on the effects of the action on

the entire critical habitat area and not

just on the portion where the activity

will occur. Adverse effects on

constituent elements or segments of

critical habitat generally do not result in

an adverse modification determination

unless that loss, when added to the

environmental baseline, is likely to

appreciably diminish the capability of

the critical habitat to satisfy essential

requirements of the species. In other

words, activities that may destroy or

adversely modify critical habitat include

those that alter the primary constituent

elements (defined above) to an extent

that the value of critical habitat for both

the survival and recovery of the bay

checkerspot is appreciably diminished.

Activities that, when carried out,

funded, or authorized by a Federal

agency, may affect critical habitat and

require that a section 7 consultation be

conducted include, but are not limited

to:

(1) Ground disturbance, including but

not limited to, grading, discing, ripping

and tilling;

(2) Removing, destroying, or altering

vegetation (e.g., including altering

grazing practices and seeding);

(3) Water contracts, transfers,

diversion, impoundment, application,

or conveyance, groundwater pumping,

irrigation, or other activity that wets or

inundates habitat, creates barriers or

deterrents to dispersal, or results in

habitat being converted to lower values

for the butterfly (e.g., conversion to

urban development, vineyards,

landscaping, etc.);

(4) Sale, exchange, or lease of critical

habitat that is likely to result in the

habitat being destroyed or degraded;

(5) Recreational activities that

significantly deter the use of critical

habitat by bay checkerspots or alter

habitat through associated maintenance

activities (e.g., off-road vehicle parks,

golf courses, trail construction or

maintenance);

(6) Construction activities that destroy

or degrade critical habitat (e.g., urban

and suburban development, building of

recreational facilities such as off-road

vehicle parks and golf courses, road

building, drilling, mining, quarrying

and associated reclamation activities);

and

(7) Application of pesticides,

herbicides, fertilizers, or other

chemicals or biological agents.

Any of the above activities that

appreciably diminish the value of

critical habitat to the degree that they

affect the survival and recovery of the

bay checkerpot may be considered an

adverse modification of critical habitat.

We note that such activities may also

jeopardize the continued existence of

the species.

If you have questions regarding

whether specific activities will

constitute destruction or adverse

modification of critical habitat resulting

from a Federal action, contact the Field

Supervisor, Sacramento Fish and

Wildlife Office (see ADDRESSES section).

Requests for copies of the regulations on

listed wildlife, and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 N.E. 11th Ave, Portland, OR 97232

(telephone 503/231–2063; facsimile

503/231–6243).

Relationship to Habitat Conservation

Plans

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

broad discretion to exclude from critical

habitat designation areas where the

benefits of exclusion outweigh the

benefits of designation, provided the

exclusion will not result in the

extinction of the species. We believe

that in most instances the benefits of

excluding HCPs from critical habitat

designations will outweigh the benefits

of including them.

The benefits of including HCP lands

in critical habitat are normally small.

Activities in designated critical habitat

that may affect critical habitat require

consultation under section 7 of the Act.

This is the major benefit of designating

lands as critical habitat. Consultation

would ensure that adequate protection

is provided to avoid adverse

modification of critical habitat.

However, our experience indicates that

where HCPs are in place, this benefit is

small or non-existent. Currently

approved and permitted HCPs are

designed to ensure the long-term

survival of covered species within the

plan area. The lands that we would find

essential for the conservation of the

species, and thus fall under the first

prong of the definition of critical habitat

would, where we have approved HCPs

and the species is a covered species

under the HCP, normally be protected in

reserves and other conservation lands.

HCPs and their implementation

agreements outline management

measures and protections for

conservation lands that are crafted to

protect, restore, and enhance their value

as habitat for covered species.

In addition, an HCP application must

itself be consulted upon. While this

consultation will not look specifically at

the issue of adverse modification of

critical habitat, it will look at the very

similar concept of jeopardy to the listed

species in the plan area. Since HCPs,

particularly large regional HCPs,

address land use within the plan

boundaries, habitat issues within the

plan boundaries have been thoroughly

addressed in the HCP and the

consultation on the HCP. Our

experience is that under most

circumstances consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Additional measures to protect the

habitat from adverse modificationare

not likely to be required.

Further, HCPs typically provide for

greater conservation benefits to a

covered species than section 7

consultations because HCPs assure the

long term protection and management of

a covered species and its habitat, and

funding for such management through

the standards found in the 5-Point

Policy for HCPs (64 FR 35242) and the

HCP No Surprises regulation (63 FR

8859). Such assurances are typically not

provided by section 7 consultations

which, in contrast to HCPs, often do not

commit the project proponent to long

term special management or protections.

Thus the lands covered by a

consultation typically will not provide

the extensive benefits of an HCP.

The development and implementation

of HCPs provide other important

conservation benefits, including the

development of biological information

to guide conservation efforts and assist

in species recovery and the creation of

innovative solutions to conserve species

while allowing for development. The

educational benefits of critical habitat,

including informing the public of areas

that are important for the long-term

survival and conservation of the species,

are essentially the same as those that

would occur from the public notice and

comment procedures required to

establish an HCP, as well as the public

participation that occurs in the

development of many regional HCPs.

For these reasons, then, we believe that

designation of critical habitat has little

benefit in areas covered by HCPs.

In contrast, the benefits of excluding

HCPs from being designated as critical

habitat are more significant. In response

to other critical habitat proposals, we

have received comments about the

additional regulatory and economic

burden of designating critical habitat.

These include the need for additional

consultation with the Service and the

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61227

need for additional surveys and

information gathering to complete these

consultations. HCP applicants have also

stated that they are concerned that third

parties may challenge HCPs on the basis

that they result in adverse modification

or destruction of critical habitat.

The benefits of excluding HCPs

include relieving landowners,

communities and counties of any

additional minor regulatory review that

might be imposed by critical habitat.

This benefit is important given our past

representations that once an HCP is

negotiated and approved by us after

public comment, activities consistent

with the plan will satisfy the

requirements of section 10(a)(1)(B) of

the Act. Many HCPs, particularly large

regional HCPs, take many years to

develop and, upon completion, become

regional conservation plans that are

consistent with the recovery of covered

species. Many of these regional plans

benefit many species, both listed and

unlisted. Imposing an additional

regulatory review after HCP completion

not only results in minor, if any,

additional benefit to the species, it may

jeopardize conservation efforts and

partnerships in many areas and could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance and

confirms regulatory assurances for HCP

participants.

Another benefit of excluding HCPs is

that it would encourage the continued

development of partnerships with HCP

participants, including states, local

governments, conservation

organizations, and private landowners,

that together can implement

conservation actions we would be

unable to accomplish alone. By

excluding areas covered by HCPs from

critical habitat designation, we preserve

these partnerships, and, we believe, set

the stage for more effective conservation

actions in the future.

In general, then we believe the

benefits of critical habitat designation to

be small in areas covered by approved

HCPs. We also believe that the benefits

of excluding HCPs from designation are

small, but significant. Because we

believe that, the small benefits of

inclusion weighed against the benefits

of exclusion, including the benefits of

relieving property owners of an

additional layer of approvals and

regulation, together with the

encouragement of conservation

partnerships would generally result in

HCPs being excluded from critical

habitat designation under Section

4(b)(2) of the Act.

Given this general analysis, we expect

to analyze the specific benefits in each

particular critical habitat designation

because not all HCPs are alike with

regard to species coverage and design.

Within this designation we need to

evaluate completed and legally

operative HCPs in the range of the

California gnatcatcher to determine

whether the benefits of excluding these

particular areas outweigh the benefits of

including them.

The San Bruno Mountain Area HCP

overlaps with the proposed critical

habitat designation on San Bruno

Mountain. The butterfly is believed to

have been extirpated from the mountain

since about 1986. The San Bruno

Mountain Area HCP does not discuss

the bay checkerspot in detail, and the

Incidental Take Permit for this HCP

currently does not include the bay

checkerspot butterfly. Therefore, we

have not excluded the area covered by

this HCP from the proposed critical

habitat designation. Any future Service

involvement in activities on San Bruno

Mountain, such as habitat restoration,

may require section 7 consultation if

there are likely to be effects on bay

checkerspot critical habitat.

The Pacific Gas & Electric (PG & E)

Metcalf-Edenvale/Metcalf-Mont Vista

HCP covers only about 4 ha (10 ac) in

the Santa Teresa Hill, San VicenteCalero, and Tulare Hill Corridor

proposed critical habitat units. Because

the HCP expires in November 2001, and

the permitted project is expected to be

complete before any final critical habitat

designation, we are not excluding lands

covered under this short-term HCP from

our critical habitat proposal. We

reviewed the project with PG & E and

determined that the remaining work

under the HCP will not cause

destruction or adverse modification of

proposed critical habitat; therefore, no

formal conference on the remaining

work will be necessary.

In the event that future HCPs covering

the bay checkerspot are developed

within the boundaries of designated

critical habitat, we will work with

applicants to ensure that the HCPs

provide for protection and management

of habitat areas essential for the

conservation of the bay checkerspot by

either directing development and

habitat modification to nonessential

areas or appropriately modifying

activities within essential habitat areas

so that such activities will not adversely

modify the primary constituent

elements. The HCP development

process provides an opportunity for

more intensive data collection and

analysis regarding the use of particular

habitat areas by the bay checkerspot.

The process also enables us to conduct

detailed evaluations of the importance

of such lands to the long term survival

of the species in the context of

constructing a biologically configured

system of interlinked habitat blocks.

We will provide technical assistance

and work closely with applicants

throughout the development of future

HCPs to identify lands essential for the

long-term conservation of the bay

checkerspot and appropriate

management for those lands.

Preliminary HCPs are being discussed

for listed and non-listed species within

the range of the bay checkerspot in areas

proposed herein as critical habitat.

These HCPs, coupled with appropriate

adaptive management, should provide

for the conservation of the species.

Economic Analysis

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

to designate critical habitat on the basis

of the best scientific and commercial

information available and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We may exclude areas

from critical habitat upon a

determination that the benefits of the

exclusions outweigh the benefits of

specifying the areas as critical habitat.

We cannot exclude the areas from

critical habitat when the exclusion will

result in the extinction of the species.

We will conduct an analysis of the

economic impacts of designating these

areas as critical habitat prior to making

a final determination. When completed,

we will announce the availability of this

economic analysis with a notice in the

Federal Register; if necessary, we will

reopen the comment period at that time.

Public Comments Solicited

We intend that any final action

resulting from this proposal be as

accurate and as effective as possible.

Therefore, we solicit comments or

suggestions from the public, other

concerned governmental agencies, the

scientific community, industry, or any

other interested party concerning this

proposed rule. We particularly seek

comments concerning:

(1) The reasons why any habitat

should or should not be determined to

be critical habitat as provided by section

4 of the Act, including whether the

benefits of designation will outweigh

any benefits of exclusion;

(2) Specific information on the

amount and distribution of bay

checkerspot butterflies and their habitat,

and what habitat is essential to the

conservation of the species and why;

(3) Land use practices and current or

planned activities in the subject areas

61228 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

and their possible impacts on proposed

critical habitat;

(4) Any foreseeable economic or other

impacts resulting from the proposed

designation of critical habitat, in

particular, any impacts on small entities

or families; and

(5) Economic and other values

associated with designating critical

habitat for the bay checkerspot such as

those derived from nonconsumptive

uses (e.g., hiking, camping,

birdwatching, enhanced watershed

protection, improved air quality,

increased soil retention, ‘‘existence

values,’’ and reductions in

administrative costs).

Our practice is to make comments

available for public review during

regular business hours, including names

and home addresses of respondents.

Individual respondents may request that

we withhold their home address from

the rulemaking record, which we will

honor to the extent allowable by law. In

some circumstances, we would

withhold from the rulemaking record a

respondent’s identity, as allowable by

law. If you wish for us to withhold your

name and/or address, you must state

this prominently at the beginning of

your comment. However, we will not

consider anonymous comments. We

will make all submissions from

organizations or businesses, and from

individuals identifying themselves as

representatives or officials of

organizations or businesses, available

for public inspection in their entirety.

Peer Review

In accordance with our policy

published 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 this

review is to ensure listing decisions are

based on scientifically sound data,

assumptions, and analyses. We will

send these peer reviewers copies of this

proposed rule immediately following

publication in the Federal Register. We

will invite these peer reviewers to

comment, during the public comment

period, on the specific assumptions and

conclusions regarding the proposed

designation of critical habitat.

We will consider all comments and

information received during the 60-day

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. Given the high likelihood of

a request for a hearing and the need to

publish a final determination within

120 days of this proposed rule, we

scheduled a public hearing (see DATES

and ADDRESSES sections).

Written comments submitted during

the comment period receive equal

consideration with those comments

presented at a public hearing.

Clarity of the Rule

Executive Order 12866 requires each

agency to write regulations/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 language or jargon that

interferes with the clarity? (3) Does the

format of the proposed rule (grouping

and order of sections, use of headings,

paragraphing, etc.) aid or reduce its

clarity? (4) Is the description of the

proposed rule in the SUPPLEMENTARY

INFORMATION section of the preamble

helpful in understanding the proposed

rule? What else could we do to make the

proposed rule easier to understand?

Send any comments that concern how

we could make this proposed rule easier

to understand to the Field Supervisor,

Sacramento Fish and Wildlife Office

(see ADDRESSES section of this rule).

Required Determinations

Regulatory Planning and Review

In accordance with Executive Order

12866, this document is a significant

rule and was reviewed by the Office of

Management and Budget (OMB). We are

preparing a draft analysis of this

proposed action, which will be available

for public comment, to determine the

economic consequences of designating

the specific areas as critical habitat. 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.

(a) This rule will not have an annual

economic effect of $100 million or more

or adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. The bay

checkerspot butterfly was listed as a

threatened species in 1987. In fiscal

years 1987 through 1999, we conducted

4 formal section 7 consultations with

Federal agencies to ensure that their

actions would not jeopardize the

continued existence of the butterfly.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; critical habitat does not

impose any restrictions on non-Federal

persons unless they are conducting

activities funded or otherwise

sponsored, authorized, or permitted by

a Federal agency (see Table 2 below).

Section 7 requires Federal agencies to

ensure that they do not jeopardize the

continued existence of the species.

Based upon our experience with the

species and its needs, we conclude that

any Federal action or authorized action

that could potentially cause an adverse

modification of the proposed critical

habitat would currently be considered

as ‘‘jeopardy’’ under the Act in areas

occupied by the bay checkerspot.

Accordingly, the designation of

currently occupied areas as critical

habitat does not have any incremental

impacts on what actions may or may not

be conducted by Federal agencies or

non-Federal persons that receive

Federal authorization or funding.

Designation of unoccupied areas as

critical habitat may have impacts on

what actions may or may not be

conducted by Federal agencies or nonFederal persons who receive Federal

authorization or funding. We will

evaluate any impact through our

economic analysis (under section 4 of

the Act; see Economic Analysis section

of this rule). Non-Federal persons that

do not have a Federal ‘‘sponsorship’’ of

their actions are not restricted by the

designation of critical habitat (however,

they continue to be bound by the

provisions of the Act concerning ‘‘take’’

of the species).

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61229

TABLE 2.—IMPACTS OF BAY CHECKERSPOT BUTTERFLY LISTING AND CRITICAL HABITAT DESIGNATION

Categories of

activities Activities potentially affected by species listing only Additional activities potentially affected bycritical habitat designation1

Federal Activities Potentially Affected2.Activities conducted by the Army Corps of Engineers, Bureau

of Reclamation, Environmental Protection Agency, Federal

Highway Administration.

Activities by these Federal Agencies in any

unoccupied critical habitat areas.

Private or other non-Federal

Activities Potentially Affected3.

Activities that require a Federal action (permit, authorization,

or funding) and may remove or destroy bay checkerspot

butterfly habitat by mechanical, chemical, or other means

(e.g., grading, discing, ripping, and tilling, water diversion,

impoundment, groundwater pumping, irrigation, construction, road building, herbicide application, recreational use,

etc.) or appreciably decrease habitat value or quality

through indirect effects (e.g., edge effects, invasion of exotic plants or animals, fragmentation of habitat).

Funding, authorization, or permitting actions

by Federal Agencies in any unoccupied critical habitat areas.

1This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by listing the species. 2Activities initiated by a Federal agency.

3Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the bay

checkerspot since the listing in 1987.

The prohibition against adverse

modification of critical habitat is not

expected to impose any additional

restrictions to those that currently exist

in areas of occupied habitat. We will

evaluate any impact of designating

unoccupied habitat areas through our

economic analysis. Because of the

potential for impacts on other Federal

agency activities, we will continue to

review this proposed action for any

inconsistencies with other Federal

agency actions.

(c) This proposed rule, if made final,

will not materially affect entitlements,

grants, user fees, loan programs, or the

rights and obligations of their recipients.

Federal agencies are currently required

to ensure that their activities do not

jeopardize the continued existence of

the species, and, as discussed above, we

do not anticipate that the adverse

modification prohibition (resulting from

critical habitat designation) will have

any incremental effects in areas of

occupied habitat.

(d) This rule will not raise novel legal

or policy issues. The proposed rule

follows the requirements for

determining critical habitat contained in

the Act.

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

et seq.)

In the economic analysis (required

under section 4 of the Act), we will

determine whether designation of

critical habitat will have a significant

effect on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above, this rule is

not expected to result in any restrictions

in addition to those currently in

existence for areas of occupied critical

habitat. We will also evaluate whether

critical habitat designation of

unoccupied areas will significantly

affect a substantial number of small

entities. As indicated on Table 1 (see

Proposed Critical Habitat Designation

section), we designated property owned

by State and local governments, and

private property.

Within these areas, the types of

Federal actions or authorized activities

that we have identified as potential

concerns are:

(1) Regulation of activities affecting

waters of the United States by the Corps

under section 404 of the Clean Water

Act;

(2) Regulation of water flows,

execution of water contracts, water

delivery, transfer of Federal project

water, damming, diversion, and

channelization by the Bureau of

Reclamation or the Corps;

(3) Pesticide and air quality regulation

by the Environmental Protection

Agency; and

(4) Funding and regulation of road

construction by the FHWA.

Many of these activities sponsored by

Federal agencies within the proposed

critical habitat areas are carried out by

small entities (as defined by the

Regulatory Flexibility Act) through

contract, grant, permit, or other Federal

authorization. As discussed above, these

actions are currently required to comply

with the listing protections of the Act,

and the designation of critical habitat is

not anticipated to have any additional

effects on these activities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the species remain in effect, and this

rule will have no additional restrictions.

Small Business Regulatory Enforcement

Fairness Act (5 U.S.C. 804(2))

In the economic analysis, we will

determine whether designation of

critical habitat will cause (a) any effect

on the economy of $100 million or

more, (b) any increases in costs or prices

for consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions; or (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises. As

discussed above, we anticipate that the

designation of critical habitat will not

have any additional effects on these

activities in areas of critical habitat

occupied by the species. Designation of

unoccupied areas as critical habitat may

have impacts on what actions may or

may not be conducted by Federal

agencies or non-Federal persons who

receive Federal authorization or

funding. We will evaluate any impact

through our economic analysis.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

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

August 25, 2000 et seq.):

(a) We believe this rule will not

‘‘significantly or uniquely’’ affect small

governments. A Small Government

Agency Plan is not required. Small

governments will be affected only to the

extent that any programs having Federal

funds, permits, or other authorized

activities must ensure that their actions

will not adversely affect the critical

habitat. However, as discussed above,

these actions are currently subject to

equivalent restrictions through the

61230 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

listing protections of the species, and no

further restrictions are anticipated to

result from critical habitat designation

of occupied areas. In our economic

analysis, we will evaluate whether

designation of unoccupied areas has any

significant effect on small governments.

(b) This rule will not produce a

Federal mandate of $100 million or

greater in any year; that is, it is not a

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications. A

takings implication assessment is not

required. As discussed above, the

designation of critical habitat affects

only Federal agency actions. The rule

will not increase or decrease the current

restrictions on private property

concerning take of the bay checkerspot.

Due to current public knowledge of the

species’ protection under the Act, the

prohibition against take of the species

both within and outside of the

designated areas, and the fact that

critical habitat provides no incremental

restrictions in areas of occupied critical

habitat, we do not anticipate that

property values will be affected by the

critical habitat designation.

Additionally, critical habitat

designation does not preclude

development of habitat conservation

plans and issuance of incidental take

permits. Landowners in areas that are

included in the designated critical

habitat will continue to have

opportunity to utilize their property in

ways consistent with the survival of the

bay checkerspot butterfly.

Federalism

In accordance with Executive Order

13132, the 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 critical

habitat proposal with appropriate State

resource agencies in California. The

designation of critical habitat in areas

currently occupied by the bay

checkerspot imposes no additional

restrictions to those currently in place

and, therefore, has little incremental

impact on State and local governments

and their activities. The designation

may have some benefit to these

governments in that the areas essential

to the conservation of the species are

more clearly defined, and the primary

constituent elements of the habitat

necessary to the survival of the species

are specifically identified. While

making this definition and

identification does not alter where and

what federally sponsored activities may

occur, it may assist these local

governments in long-range planning

(rather than waiting for case-by-case

section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Office of the Solicitor has

determined that 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 propose to

designate critical habitat in accordance

with the provisions of the Act and plan

a public hearing on the proposed

designation during the comment period.

The rule uses standard property

descriptions and identifies the primary

constituent elements within the

designated areas to assist the public in

understanding the habitat needs of the

bay checkerspot butterfly.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule does not contain any

information collection requirements that

requires Office of Management and

Budget approval under the Paperwork

Reduction Act.

National Environmental Policy Act

We determined that we do not need

to prepare an Environmental

Assessment and/or an Environmental

Impact Statement as defined by the

National Environmental Policy Act of

1969 in connection with regulations

adopted pursuant to section 4(a) of the

Act. We published a notice outlining

our reasons for this determination in the

Federal Register on October 25, 1983

(48 FR 49244).

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) and 512

DM 2, we understand that Federally

recognized Tribes must be related to on

a Government-to-Government basis.

We are not aware of any Tribal lands

essential for the conservation of the bay

checkerspot. Therefore, we are not

proposing to designate critical habitat

for the bay checkerspot butterfly on

Tribal lands.

References Cited

Emmel, J. F., T. C. Emmel, and S. O. Mattoon.

1998. The types of California butterflies

named by Jean Alphonse Boisduval:

designation of lectotypes and a neotype,

and fixation of type localities. Pages 3–

76 in: Emmel, T.C. (ed.), Systematics of

Western North American Butterflies.

Mariposa Press, Gainesville, Florida.

Harrison, S. P. 1989. Long-distance dispersal

and colonization in the bay checkerspot

butterfly, Euphydryas editha bayensis.

Ecology 70:1236–1243.

Launer, A. E., D. D. Murphy, C. L. Boggs, J.

F. Baughman, S. B. Weiss, and P. R.

Ehrlich. 1993. Puddling behavior by Bay

checkerspot butterflies (Euphydryas

editha bayensis). Journal of Research on

the Lepidoptera 32:45–52.

Mattoni, R., G. F. Pratt, T. R. Longcore, J. F.

Emmel, and J. N. George. Published 1997

for the year 1995. The endangered quino

checkerspot butterfly, Euphydryas editha

quino (Lepidoptera: Nymphalidae).

Journal of Research on the Lepidoptera

34:99–118.

U.S. Soil Conservation Service. 1974. Soil

Survey of Eastern Santa Clara Area. U.S.

Department of Agriculture, Washington,

DC.

U.S. Fish and Wildlife Service. 1998.

Recovery plan for serpentine soil species

of the San Francisco Bay area. U.S. Fish

and Wildlife Service, Portland, Oregon.

330+ pp.

Weiss, S. B. 1999. Cars, cows, and

checkerspot butterflies: nitrogen

deposition and management of nutrientpoor grasslands for a threatened species.

Conservation Biology 13:1476–1486.

Weiss, S. B., and A. E. Launer. 2000. Annual

report to the trustees of the Kirby Canyon

Conservation Agreement—Summary of

activities conducted in 1999 and early

spring 2000. Unpublished report, on file

at Sacramento Fish and Wildlife Office.

Authors

The primary authors of this notice are

the staff of the Sacramento Fish and

Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

Proposed Regulation Promulgation

For the reasons given in the preamble

above, we propose to amend 50 CFR

part 17 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 § 17.11(h) revise the entry for

‘‘Butterfly, bay checkerspot,’’ under

‘‘INSECTS,’’ to read as follows:

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61231

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

INSECTS

*******

Butterfly, bay

checkerspot.

Euphydryas editha

bayensis.

U.S.A. (CA) ............. NA ........................... T 288 17.95(i) NA

*******

3. Amend § 17.95(i) by adding critical

habitat for the bay checkerspot butterfly

(Euphydryas editha bayensis) in the

same alphabetical order as this species

occurs in § 17.11(h), to read as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(i) Insects

Bay Checkerspot Butterfly (Euphydryas

editha bayensis)

1. Critical habitat units are depicted

for San Mateo and Santa Clara counties,

California, on the maps below.

2. Within these areas, the primary

constituent elements are those habitat

components that are essential for the

primary biological needs of foraging,

sheltering, breeding, maturation and

dispersal. The primary constituent

elements are areas of open grassland;

stands of Plantago erecta, Castilleja

exserta, or Castilleja densiflora; spring

flowers providing nectar; pollinators of

the bay checkerspot’s food and nectar

plants; soils derived from serpentinic

rock; stable holes or cracks in the soil

and surface rocks or rock outcrops;

wetlands providing moisture during

times of spring drought; and space for

dispersal between habitable areas. In

addition, topography with varied slopes

and aspects is a primary constituent

element to be conserved when it is

present in combination with one or

more of the primary constituent

elements above.

3. Within these areas, existing features

and structures, such as buildings, roads,

railroads, urban development, and other

features not containing primary

constituent elements, are not considered

critical habitat.

61232 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Unit 1 (Edgewood Park/Triangle Unit): San Mateo County, California. Bounded as follows: beginning at the intersection

of Edgewood Road and Can ̃ada Road; southwesterly, south, and southeasterly along the light-duty extension of Edgewood

Road southwest of Can ̃ada Road to its intersection with an unnamed intermittent drainage tributary to Upper Crystal

Springs Reservoir as shown on the USGS Woodside 7.5 minute quadrangle (1961, photorevised 1968 and 1973); then

southwesterly along this drainage to its intersection with I–280; then southeasterly along the eastern edge of pavement

of I–280 to a point due southwest of the southernmost corner of Edgewood Natural Preserve (this just south of a

substation shown on the Woodside quadrangle, where the State Fish and Game Refuge boundary meets Can ̃ada Road

and an elevation of 161 m (528 ft) is marked); then due northeast to the southernmost corner of Edgewood Natural

Preserve; then northeast along the southeast boundary of Edgewood Natural Preserve to the 159 m (520 ft) elevation

contour as shown on the Woodside quadrangle; then northwesterly along this contour to its intersection with Edgewood

Road; then southwesterly along the south edge of pavement of Edgewood Road to the starting point.

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61233

Unit 2 (Jasper Ridge Unit): San Mateo County, California. Bounded as follows: to the east, north, and west by

the 110 m (360 ft) elevation contour around Jasper Ridge (USGS Palo Alto 7.5 minute quadrangle, 1991); and to the

south by the current boundary of the Jasper Ridge Biological Reserve, which is largely coincident with the northern

boundary of the town of Portola Valley.

61234 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Unit 3 (San Bruno Mountain Unit): San Mateo County, California. All area on San Bruno Mountain above the

152 m (500 ft) elevation contour and east of the western Pacific Gas and Electric transmission corridor (this transmission

corridor runs south to southwesterly from the west end of Guadalupe Valley to the South San Francisco/Colma City

border) as shown on the USGS San Francisco South 7.5 minute quadrangle, 1956).

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61235

Unit 4 (Bear Ranch Unit): Santa Clara

County, California. Those portions of

section 32, T.9 S., R.4 E. and section 5,

T.10 S., R.4 E., westerly of Coyote

Reservoir Road—a light-duty road

shown but not named on the USGS

Gilroy 7.5 minute quadrangle (1955,

photorevised 1968 and 1973).

Unit 5 (San Martin Unit): Santa Clara

County, California. Bounded on the

north by a line running due east-west

through a point 305 m (1000 ft) due

north of a hilltop marked 239 m (785 ft)

in elevation on the USGS Mt. Madonna

7.5 minute quadrangle (1955,

photorevised 1968). This hilltop is near

latitude 37 degrees 4 minutes 42

seconds north, longitude 121 degrees 38

minutes 19 seconds west (Hayes Lane,

not shown on the Mt. Madonna

quadrangle, also runs in the vicinity of

this hilltop). The north boundary runs

as far east as its intersection with the 97

m (320 ft) elevation contour west of

Coolidge Avenue as shown on the Mt.

Madonna quadrangle. From this point

the boundary runs southeasterly,

southerly, and westerly following this

contour, continuing onto the USGS

Gilroy 7.5 minute quadrangle (1955,

photorevised 1968 and 1973) and back

to its intersection with longitude 121

degrees 37 minutes 30 seconds west (the

junction between the two quadrangles).

The unit is bounded on the southsouthwest by a straight line running

from this latter point for a distance of

about 2,228 m (7,310 ft) slightly south

of west-northwest (bearing 291.5

degrees) to a hilltop labeled 152 m (495

ft) in elevation on the Mt. Madonna

quadrangle. The west boundary of the

unit runs from this hilltop due northnortheast (bearing 22.5 degrees) to the

north boundary.

61236 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61237

Unit 6 (Communications Hill Unit):

Santa Clara County, California. Starting

at a point on the 73 m (240 ft) elevation

contour due south of the 133 m (435 ft)

summit of Communications Hill, the

Communications Hill unit is bounded to

the south by the 73 m (240 ft) elevation

contour as shown on the USGS San Jose

East 7.5 minute quadrangle map (1961,

photorevised 1980; the hill is not named

on this map but the county

communications center is shown), as far

west as its intersection with Highway 87

(this highway is not shown on the San

Jose East quadrangle); then south along

Highway 87 (west edge of pavement) to

the 55 m (180 ft) elevation contour (all

contours in this description are as

shown on the San Jose East quadrangle);

then south, west, and north along this

contour to a point due west of the

southernmost point of the southern of

the two water tanks on the top of the hill

west of Highway 87; then due east for

a distance of about 238 m (780 ft) to a

point due south of the easternmost point

of the eastern of the two water tanks;

then due north for about 439 m (1,440

ft) to the intersection with the 85 m (280

ft) elevation contour; then slightly north

of east on a straight line to the southern

corner of the property of the county

communications facility; then on a line

to the northern corner of this property;

then due southwest to Carol Drive (not

named on the San Jose East quadrangle);

then slightly north of northwest (bearing

322 degrees) to the 55 m (180 ft)

elevation contour; then along this

contour easterly and northeasterly until

it reaches the second dirt road as shown

on the San Jose East quadrangle; then

due northeast across the Southern

Pacific railroad tracks to the 55 m (180

ft) elevation contour; then northwesterly

and northeasterly along this contour to

the boundary of Oak Hill Memorial Park

cemetery; then following the cemetery

boundary southeasterly, skirting a hill

summit marked 98 m (323 ft) on the San

Jose East quadrangle, to the first 67 m

(220 ft) elevation contour southeast of

this summit; then due southwest to the

49 m (160 ft) elevation contour

immediately west of the railroad tracks;

then southeasterly along this contour as

shown on the 1961 San Jose East

quadrangle to its intersection with

Hillsdale Avenue; then southwesterly

along Hillsdale Avenue (north edge of

pavement) to its intersection with Vista

Park Drive (not shown on the San Jose

East quadrangle); then due north to the

73 m (240 ft) elevation contour; then

westerly along this contour to the

starting point.

61238 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61239

Unit 7 (Kalana Hills Unit): Santa Clara

County, California. Bounded as follows:

beginning at the intersection of San

Bruno Avenue and the 94 m (310 ft)

elevation contour as shown on USGS

Morgan Hill 7.5 minute topographic

quadrangle (1955, photorevised 1968);

by a line running due northwest to the

79 m (260 ft) elevation contour; then

due west for 419 m (1,375 ft)

(approximately to the second

intersection with a canal); then due

south for about 1 km (0.6 mi) to an

unnamed intermittent stream shown on

the Morgan Hill quadrangle; then by a

straight line slightly east of southeast to

the westernmost point on the

intermittent stream draining San Bruno

Canyon (this point is nearly on a line

between hilltop elevations marked 227

m (744 ft) and 230 m (756 ft), to the east

and the west, respectively, on the

Morgan Hill quadrangle); then by a line

running north of northeast back to the

starting point on San Bruno Avenue.

Unit 8 (Kirby Unit): Santa Clara

County, California. Beginning at the

intersection of the intermittent creek

draining Metcalf Canyon (Metcalfe

Canyon on the USGS Morgan Hill 7.5

minute quadrangle, 1955, photorevised

1980) with Highway 101 (current

alignment, not shown on Morgan Hill

quadrangle), the unit is bounded on the

east, southeast, and south by Highway

101 (east edge of pavement, current

alignment, not shown on the Morgan

Hill quadrangle), south to where it

crosses Coyote Creek. From there the

boundary runs southeasterly up along

Coyote Creek to the Anderson Lake

dam; then east-northeasterly up the face

of the dam to Anderson Lake (Anderson

Reservoir). The unit is bounded on the

southeast by Anderson Lake. From the

northernmost tip of Anderson Lake (at

latitude 37 degrees 12 minutes 15

seconds north) the boundary runs

slightly north of west for a distance of

about 1,097 m (3,600 ft) to a hilltop

marked 379 m (1,243 ft) in elevation on

the Morgan Hill quadrangle; then

slightly west of northwest for a distance

of about 1,707 m (5,600 ft) to a hilltop

marked 411 m (1,347 ft) in elevation on

the Morgan Hill quadrangle; then

slightly north of northwest for a

distance of about 2,886 m (9,470 ft) to

a hilltop marked 444 m (1,457 ft) in

elevation on the Morgan Hill

quadrangle; then on a line running from

this hilltop south of west-southwest

(bearing 237 degrees) to the intersection

of the Metcalf Canyon drainage with the

354 m (1,160 ft) elevation contour as

shown on the Morgan Hill quadrangle.

The north boundary of the unit then

continues westerly down the Metcalf

Canyon drainage to the starting point.

Unit 9 (Morgan Hill Unit): Santa Clara

County, California. Bounded as follows:

beginning at the intersection of the 107

m (350 ft) elevation contour (USGS

Morgan Hill 7.5 minute quadrangle,

1955, photorevised 1968) with Hale

Road east of the intersection of

Cochrane Road and Monterey Highway;

running north-northwesterly along this

contour to where it again meets Hale

Avenue near the intersection of Hale

Avenue with Tilton Avenue (these roads

are not named on the Morgan Hill

quadrangle); then on a line due

southwest to the 122 m (400 ft)

elevation contour; then westsouthwesterly along this contour to its

intersection with Willow Springs Road;

then along Willow Springs Road

southwesterly to the land survey line

running approximately east-southeast

from Laurel Hill (elevation marked 349

m (1,145 ft) on the Morgan Hill

quadrangle); then east-southeasterly

along this land survey line to its end at

the R.2 E./R.3 E. dividing line (Mount

Diablo meridian/base line); then

continuing from this point along the

same bearing as the land survey line to

Llagas Road (called Llagas Avenue on

the Morgan Hill quadrangle); then

northeasterly along Llagas Road to its

intersection with Castle Lake Drive (not

shown on the Morgan Hill quadrangle);

then east-northeasterly along a straight

line connecting this intersection and the

intersection of Christeph Drive and

Llagas Vista Drive (not shown on the

Morgan Hill quadrangle); then

northeasterly parallel to Llagas Road to

Hale Avenue; then north-northwesterly

along Hale Avenue to the starting point.

BILLING CODE 4310–55–P

61240 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61241

Unit 10 (Metcalf Unit): Santa Clara

County, California. This unit shares its

southern border with the northern

border of the Kirby unit, running from

Highway 101 (current alignment, not

shown on USGS Morgan Hill 7.5 minute

quadrangle, 1955, photorevised 1980)

up the Metcalf Canyon drainage and to

the 444 m (1,457 ft) peak of the ridge as

described for the Kirby unit. The

Metcalf unit boundary then runs northnortheasterly from this hilltop for a

distance of about 1,740 m (5,710 ft) to

a hilltop marked 440 m (1,445 ft) in

elevation on the Morgan Hill quadrangle

(this segment crosses Metcalf Road

(appears as Metcalfe Road on the

Morgan Hill quadrangle) about 0.5 km

(0.3 mi) easterly of the high point of this

road over Coyote Ridge). The Metcalf

unit boundary then continues, abutting

the San Felipe unit, from this hilltop

due west to Silver Creek; then

northwesterly down Silver Creek to the

first intersection with Silver Creek Road

(sic) (T.8 S., R.2 E; USGS San Jose East

7.5 minute quadrangle, 1961,

photorevised 1980) (see San Felipe unit

description). From this crossing of

Silver Creek Road over Silver Creek, the

Metcalf unit boundary follows Silver

Creek Road west-northwesterly to the

152 m (500 ft) elevation contour as

shown on the San Jose East quadrangle

(just north of a benchmark labeled 153

m (502 ft) on the quadrangle); then

continues due southwest for about 445

m (1,460 ft) to a fence line marked on

the San Jose East quadrangle; then

slightly north of west following that

fence line as shown for a distance of

about 1,027 m (3,370 ft) to its second

(westerly) intersection with the 226 m

(740 ft) elevation contour as shown on

the San Jose East quadrangle; then

northwest in a straight line to the

intersection of Silver Creek Valley Road

(sic) (not shown on the San Jose East

quadrangle) with the 195 m (640 ft)

elevation contour as shown on the San

Jose East quadrangle; then

southwesterly along Silver Creek Valley

Road to Coyote Creek; then

southeasterly along Coyote Creek to its

first undercrossing of Highway 101

(current alignment, not shown but

would fall on USGS Santa Teresa Hills

7.5 minute quadrangle, 1953,

photorevised 1980); then southerly

along Highway 101 (current alignment,

east edge of pavement, not shown on

USGS 7.5 minute quadrangles) to the

Metcalf Canyon drainage.

Unit 11 (San Felipe Unit): Santa Clara

County, California. The east boundary of

the San Felipe critical habitat unit

begins at the 440 m (1,445 ft) hilltop

identified in the northeast boundary of

the Metcalf unit (this peak is labeled on

the USGS Morgan Hill 7.5 minute

quadrangle (1955, photorevised 1980),

near latitude 37 degrees 15 minutes

north, longitude 121 degrees 43 minutes

west); and proceeds from that hilltop

due north to San Felipe Road at an

elevation of about 296 m (970 ft) (USGS

Lick Observatory 7.5 minute

quadrangle, 1955, photorevised 1968);

then west-northwesterly along San

Felipe Road (southwest edge of

pavement) for a distance of about 2.7 km

(1.7 mi) to Silver Creek Road (sic). The

north boundary is formed by Silver

Creek Road (south edge of pavement)

from San Felipe Road to Silver Creek

(the creek crossing is on the USGS San

Jose East 7.5 minute quadrangle, 1961,

photorevised 1980). The west boundary,

which abuts the Metcalf unit, runs from

Silver Creek Road southeasterly along

Silver Creek (mostly on Lick

Observatory quadrangle). The south

boundary also abuts the Metcalf unit,

and runs from Silver Creek (Morgan Hill

quadrangle) due east to the starting

point.

Unit 12 (Silver Creek Unit): Santa

Clara County, California. Bounded as

follows: on the west by Highway 101

(east edge of pavement, current

alignment) from Yerba Buena Road in

San Jose south to the crossing of Coyote

Creek (Yerba Buena Road and the full

current alignment of Highway 101 are

not shown on the USGS San Jose East

7.5 minute quadrangle, 1961,

photorevised 1980); then by Coyote

Creek southeasterly from this crossing

south to Silver Creek Valley Road (not

shown on the San Jose East quadrangle);

then by Silver Creek Valley Road from

Coyote Creek northeasterly to its

intersection with the 195 m (640 ft)

elevation contour shown on the San Jose

East quadrangle (this segment abuts the

northwestern boundary of the Metcalf

unit); then due northwest to the

boundary of the Silver Creek Valley

Country Club Butterfly Habitat Reserve

at an elevation of about 226 m (740 ft);

then generally northeast, north, and

northwest along the boundary of the

reserve to a fence line shown on the San

Jose East quadrangle at an elevation of

about 168 m (550 ft); then northeasterly

following that fence line as shown to

Silver Creek at an elevation of about 93

m (305 ft); then northwesterly and

westerly following Silver Creek to Yerba

Buena Road where Silver Creek passes

under it approximately 216 m (710 ft)

northeast of Highway 101; then along

Yerba Buena Road (south edge of

pavement) to Highway 101.

BILLING CODE 4310–55–P

61242 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61243

Unit 13 (San Vicente-Calero Unit):

Santa Clara County, California. Bounded

on the north and northwest by Calero

Reservoir, by the canal and siphon

running westerly of the main reservoir

dam (dam on the Arroyo Calero), and by

the city boundary of the City of San

Jose, which follows the canal at an

elevation of roughly 152 m (500 ft), as

far as its intersection with Chilanian

Gulch. The boundary then runs

generally southeast following Chilanian

Gulch to its intersection with the R.1 E./

R.2 E. (Mount Diablo meridian/base

line) dividing line, then due south to the

Calero County Park border. The park

boundary forms the rest of the western,

southern, and southeastern border of the

unit. The eastern border of the unit is

formed by a line running due north from

the southern Calero County Park

boundary through a hilltop elevation

labeled 307 m (1,009 ft) on the USGS

Santa Teresa Hills 7.5 minute

quadrangle (1953, photorevised 1980) to

Calero Reservoir. This hilltop is near

latitude 37 degrees 10 minutes 15

seconds north, longitude 121 degrees 46

minutes 15 seconds west.

Unit 14 (Santa Teresa Hills Unit):

Santa Clara County, California. The east

and southeast boundary runs as follows,

beginning at the westernmost corner of

the Tulare Hill Corridor unit: due

southeast and then northeast along the

Tulare Hill Corridor unit boundary, to

the 85 m (280 ft) elevation contour

(USGS Santa Teresa Hills 7.5 minute

quadrangle, 1953, photorevised 1980);

then southeasterly, south, and

southwesterly along this elevation

contour (continues onto USGS Morgan

Hill 7.5 minute quadrangle, 1955,

photorevised 1980, and back) to its

intersection with Bailey Avenue. The

south, southwest, and western border of

the unit then continues from this point,

along a line running west-southwesterly

(bearing 248 degrees) for a distance of

about 325 m (1,065 ft) to a bench mark

north of Bailey Avenue labeled 108 m

(354 ft) in elevation on the Santa Teresa

Hills quadrangle; then north of east

(bearing 284 degrees) for a distance of

about 3,030 m (9,940 ft) to the

intersection of a land grant boundary

with a transmission line shown on the

1980 photorevised Santa Teresa Hills

quadrangle at an elevation of about 152

m (500 ft); then north-northwesterly

along this land grant line to the

intersection with Fortini Road; then

generally west-southwest and west

along Fortini Road to the intersection

with San Vicente Avenue (these road

names do not appear on the Santa

Teresa quadrangle); then westerly along

San Vicente Avenue to where it turns

south south-west; then continuing

westerly and northwesterly from this

point along a land grant boundary

shown on the Santa Teresa Hills

quadrangle to its intersection with both

Henwood Drive (road name does not

appear on the Santa Teresa quadrangle)

and an unnamed intermittent drainage

(tributary to Arroyo Calero); then

northeasterly and northerly up this

drainage as marked on the Santa Teresa

Hills quadrangle to the 183 m (600 ft)

elevation contour; then due northnortheast for a distance of about 424 m

(1,390 ft) to the first intersection with

the 280 m (920 ft) elevation contour;

then west-northwest for a distance of

about 265 m (870 ft) to a hilltop over

280 m (920 ft) in elevation, then slightly

north of west (bearing 276 degrees) for

a distance of about 543 m (1,780 ft) to

the end of a dirt road as marked on the

1980 photorevised Santa Teresa Hills

quadrangle; then slightly south of westnorthwest (bearing 290 degrees) for a

distance of about 2,551 (8,370 ft) to a

hilltop marked 173 m (568 ft) in

elevation on the Santa Teresa Hills

quadrangle; then due northeast to the 73

m (240 ft) elevation contour as shown

on the Santa Teresa Hills quadrangle.

The northern boundary of the unit is

formed by the 73 m (240 ft) elevation

contour as shown on the Santa Teresa

Hills quadrangle.

Unit 15 (Tulare Hill Corridor Unit):

Santa Clara County, California. Bounded

on the northeast by the most

northeasterly edge of pavement of

Highway 101 (i.e., the highway itself is

included, and the unit abuts the Kirby

and Metcalf units). Bounded on the

northwest, west, and southwest by a

line extending due southwest from the

northeast boundary to the corner of

Cheltenham Way and Coburn Court,

then southwesterly along Cheltenham

Way from Coburn Court to the

intersection with Santa Teresa

Boulevard, then southeasterly along

Santa Teresa Boulevard to the 73 m (240

ft) elevation contour as shown on the

USGS Santa Teresa Hills 7.5 minute

quadrangle (1953, photorevised 1980),

then southwesterly along this contour to

the border of Santa Teresa County Park,

then along a line due southeast to the

southeast border of the unit. Bounded

on the southeast by a line running due

northeast-southwest through the

southeastern-most point of the 85 m

(280 ft) contour of Tulare Hill, as shown

on the Morgan Hill quadrangle.

BILLING CODE 4310–55–P

61244 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

* * * * *

Dated: October 10, 2000.

Kenneth L. Smith,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 00–26448 Filed 10–12–00; 8:45 am]

BILLING CODE 4310–55–C