17288 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

FWS–R8–ES–2007–0005; 92210–1117– 

0000–B4 

RIN 1018–AV09 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Peninsular Bighorn Sheep 

and Determination of a Distinct 

Population Segment of Desert Bighorn 

Sheep (Ovis canadensis nelsoni) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

revised critical habitat for the 

Peninsular bighorn sheep, a distinct 

population segment (DPS) of desert 

bighorn sheep (Ovis canadensis nelsoni) 

occupying the Peninsular Ranges of 

Southern California, under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

376,938 acres (ac) (152,542 hectares 

(ha)) fall within the boundaries of the 

critical habitat designation. This revised 

designation of critical habitat for 

Peninsular bighorn sheep reduces the 

2001 designation by approximately 

467,959 ac (189,377 ha). The revised 

critical habitat is located in Riverside, 

San Diego, and Imperial Counties, 

California. 

DATES: This rule becomes effective on 

May 14, 2009. 

ADDRESSES: The final rule, final 

economic analysis, and map of critical 

habitat will be available on the Internet 

at http://www.regulations.gov. 

Supporting documentation we used in 

preparing this final rule will be 

available for public inspection, by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, Suite 

#101, Carlsbad, CA 92011; telephone 

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

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

If you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for 

Peninsular bighorn sheep in this final 

rule. For more information on the 

taxonomy, biology, and ecology of 

Peninsular bighorn sheep, refer to the 

final listing rule published in the 

Federal Register on March 18, 1998 (63 

FR 13134), the original final critical 

habitat rule published in the Federal 

Register on February 1, 2001 (66 FR 

8650), the proposed rule to revise 

critical habitat published in the Federal 

Register on October 10, 2007 (72 FR 

57740), and the August 26, 2008 (73 FR 

50498), notice of availability of the draft 

economic analysis (DEA) that 

announced revisions to the proposed 

critical habitat designation. 

The listed entity treated in this rule is 

a DPS of desert bighorn sheep (Ovis 

canadensis nelsoni). We will refer to 

this entity as Peninsular bighorn sheep, 

or as a DPS (not species or subspecies). 

As stated in the October 10, 2007, 

proposed critical habitat rule, we are 

formally recognizing the listed entity as 

Peninsular bighorn sheep, a DPS of the 

desert bighorn sheep (Ovis canadensis 

nelsoni). This is the currently accepted 

taxonomic placement of these animals. 

We submitted this as a change for 

inclusion in the Code of Federal 

Regulations (CFR). The taxonomic 

revision does not affect discreteness and 

significance of Peninsular bighorn sheep 

as a DPS. In the 1998 final listing rule, 

Peninsular bighorn sheep were listed as 

a DPS of the species Ovis canadensis. At 

the time of listing at least six subspecies 

of bighorn sheep (Ovis canadensis) were 

named, including Ovis canadensis 

cremnobates, which is a name that 

previously had been applied to the 

Peninsular bighorn sheep. However, 

because of ongoing questions regarding 

the distinctiveness of the subspecific 

taxa at that time, the Peninsular Ranges 

population was considered a distinct 

population segment (DPS) of the species 

O. canadensis rather than as a 

subspecies or a DPS of a particular 

subspecies. 

Relevant information regarding the 

systematic relationships of the 

infraspecific (below species rank) taxa 

of bighorn sheep at or near the time of 

listing was based on morphometric 

(variation in size and shape) 

assessments, as well as molecular 

analyses, such as mitochondrial DNA 

(mtDNA) assessments (Wehausen and 

Ramey 1993; Ramey 1993; Ramey 1995; 

Boyce et al. 1999) and microsatellite 

and histocompatibility complex loci 

analysis (Boyce et al. 1997; GutierrezEspeleta et al. 1998). While the 

discriminatory value of these various 

approaches was not addressed in the 

recovery plan (USFWS 2000), the 

Service concluded in the morphology 

and taxonomy section of the Recovery 

Plan (USFWS 2000, p. 3) that the 

currently recognized subspecies for 

desert bighorn sheep, Ovis canadensis 

nelsoni, includes the Peninsular bighorn 

sheep. This taxonomic placement was 

recognized in the final critical habitat 

designation for the Peninsular bighorn 

sheep published in 2001 (USFWS 2001, 

p. 8650). In that rule, we described the 

range of the DPS as coincident with the 

U.S. portion of the formerly recognized 

Ovis canadensis cremnobates. The 

current known range for the Peninsular 

bighorn sheep remains the same, as does 

its status as a DPS of the desert bighorn 

sheep (Ovis canadensis nelsoni). 

Regardless of its systematic affiliation, 

the Peninsular bighorn sheep continues 

to meet the criteria for consideration as 

a DPS. Within this document, we refer 

to the listed entity as a distinct 

population segment (DPS) of desert 

bighorn sheep (Ovis canadensis 

nelsoni), not as a subspecies as we did 

within the discussion portion of the 

October 10, 2007, proposed critical 

habitat rule. We will continue to use the 

common name Peninsular bighorn 

sheep when referring to this DPS. No 

discussions or references to the 

Peninsular bighorn sheep DPS are 

intended to apply to any other portions 

of the range (e.g., San Bernardino 

Mountains, Joshua Tree National Park, 

the desert mountains of southwestern 

Nevada and northwestern Arizona) of 

the desert bighorn sheep (Ovis 

canadensis nelsoni). For a detailed 

discussion of the DPS analysis for 

Peninsular bighorn sheep, see the 

Distinct Vertebrate Population Segment 

section of the 1998 final listing rule 

(March 18, 1998, 63 FR 13134). 

Therefore, we are changing the listed 

entity from a DPS of the species Ovis 

canadensis, to a DPS of the subspecies 

Ovis canadensis nelsoni. This final rule 

includes a change to the List of 

Endangered and Threatened Wildlife at 

50 CFR 17.11(h) to reflect this change. 

DPS Description, Life History, 

Distribution, Ecology, and Habitat 

No new substantial information 

pertaining to the DPS description, life 

history, ecology, or habitat of Peninsular 

bighorn sheep was received following 

the 2007 proposed rule to revise critical 

habitat for this DPS. Therefore, please 

refer to the final listing rule published 

in the Federal Register on March 18, 

1998 (63 FR 13134), and the proposed 

rule to revise critical habitat published 

in the Federal Register on October 10, 

2007 (72 FR 57740), for a discussion of 

the DPS’s description, life history, 

ecology, and habitat. 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17289 

DPS Distribution 

During the first public comment 

period for the proposed rule, we 

received new information regarding 

occurrence data that had been collected 

within the past year. The areas in which 

new sheep occurrence data was received 

include the South Santa Rosa 

Mountains along Grave Wash and the 

Jacumba Mountains near Interstate 8. 

The occurrence data received falls 

within the boundary of the 2001 critical 

habitat designation and the 2000 

Recovery Plan area; therefore, we do not 

believe this new information markedly 

affects the known distribution of 

Peninsular bighorn sheep. However, we 

considered this new occurrence data 

and revised our proposed designation to 

include these areas recently used by 

Peninsular bighorn sheep (see the 

Notice of Availability (NOA), August 26, 

2008, 73 FR 50498). The areas 

represented by the new occurrence data 

are included in this final designation 

(see the ‘‘Summary of Changes From the 

2007 Proposed Rule To Revise Critical 

Habitat to This Final Rule to Revise 

Critical Habitat’’ section of this final 

rule). 

Previous Federal Actions 

As discussed in the proposed rule to 

revise critical habitat for this DPS, a July 

31, 2006, court-approved consent decree 

enacted a limited partial vacatur of 

tribal, mining, and Desert Riders lands 

and remanded the critical habitat 

designation back to the Service for new 

rulemaking. The Service was obligated 

under the consent decree to submit a 

proposed revised critical habitat 

designation to the Federal Register on 

or before September 30, 2007, and a 

final revised critical habitat designation 

on or before September 30, 2008. We 

published a proposed revised critical 

habitat designation in the Federal 

Register on October 10, 2007 (72 FR 

57740), and accepted public comments 

on the proposed revised designation for 

60 days, ending December 10, 2007. 

Because significant new information 

was received, the parties agreed to 

extend the due date to the Federal 

Register of the final revised critical 

habitat rule to March 30, 2009. On 

August 26, 2008 (73 FR 50498), we 

opened a second public comment 

period on the proposed revised critical 

habitat designation and announced our 

intention to hold two public hearings on 

the proposed rule that were held in 

Palm Desert, California, on September 

10, 2008. In the same Federal Register 

notice we announced the availability of 

our Draft Economic Analysis (DEA) 

(dated June 9, 2008) and announced 

changes to the proposed rule. We 

accepted public comments during the 

second open comment period for 60 

days, ending October 27, 2008. For more 

information on previous Federal actions 

concerning Peninsular bighorn sheep, 

refer to the final listing rule published 

in the Federal Register on March 18, 

1998 (63 FR 13134), the final critical 

habitat designation published in the 

Federal Register on February 1, 2001 

(66 FR 8650), and the proposed rule to 

revise critical habitat published in the 

Federal Register on October 10, 2007 

(72 FR 57740). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public during two comment periods 

on the proposed rule to revise critical 

habitat for Peninsular bighorn sheep. 

The first comment period opened 

October 10, 2007 (72 FR 57740), and 

closed December 10, 2007, and was 

associated with the publication of the 

proposed rule. We received several 

requests for a public hearing during this 

comment period. The second comment 

period opened August 26, 2008 (73 FR 

50498), and closed October 27, 2008, 

and was associated with the notice of 

availability of the DEA, announcement 

of revisions to the proposed critical 

habitat, and a notice of public hearings 

that were held September 10, 2008. 

During these two public comment 

periods, we contacted appropriate 

Federal, State, and local agencies; 

scientific organizations; and other 

interested parties and invited them to 

comment on the proposed rule to revise 

critical habitat for this DPS and the 

associated DEA. 

During the first comment period, we 

received 212 public comments directly 

addressing the proposed revision of 

critical habitat: 1 from a Federal agency, 

2 from State agencies, 1 from an elected 

official, and 208 from organizations and 

individuals. During the second 

comment period and the September 10, 

2008, public hearings, we received 

5,092 comments directly addressing the 

proposed revision of critical habitat for 

this DPS or the DEA: 1 from an elected 

official, 2 from State agencies, 3 from 

local governments, and 5,086 from 

organizations and individuals. 

Peer Review 

In accordance with our policy on peer 

review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

we solicited expert opinions from five 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the DPS, the geographic 

region in which it occurs, and 

conservation biology principles. We 

received responses from all five of the 

peer reviewers. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

Peninsular bighorn sheep. These 

comments are addressed below and 

incorporated into the final rule as 

appropriate. 

Peer Reviewer Comments 

Comment 1: Several peer reviewers 

stated the proposed critical habitat is 

flawed because it does not provide for 

connectivity. One peer reviewer stated 

further that the proposal fragments the 

habitat available to the Peninsular 

bighorn sheep. Several peer reviewers 

asserted that, although essential habitat 

(as identified by the Peninsular bighorn 

sheep Recovery Team and depicted in 

the 2000 Peninsular bighorn sheep 

Recovery Plan) and critical habitat 

originally designated in 2001 promoted 

habitat connectivity among all 

subpopulations, the proposed critical 

habitat essentially severs the San Jacinto 

Mountains subpopulation (Unit 1) and 

the Carrizo Canyon subpopulation (Unit 

3) from the remainder of the range 

(Units 2A and 2B). One peer reviewer 

also noted that movement of Peninsular 

bighorn sheep has been documented 

between these areas. According to the 

same peer reviewer, a collared ram from 

the San Jacinto Mountains was observed 

during July and August 2008 on several 

different occasions in the northern 

Santa Rosa Mountains with other 

bighorn sheep there. The peer reviewer 

concluded that not including these areas 

as critical habitat incorrectly suggests 

that these areas are not critical to the 

long-term recovery or survival of the 

population. 

Another peer reviewer stated that 

movement between Units l, 2A, 2B, and 

3 is important and that critical habitat 

should be extended to protect corridors 

connecting the units. The same peer 

reviewer maintained that if any unit is 

isolated, the subpopulation may not be 

viable and that critical habitat should be 

expanded to include corridors for 

movement between units. One peer 

reviewer noted an extensive and 

irrefutable body of scientific literature 

that illustrates the importance of habitat 

connectivity. Two peer reviewers stated 

that, despite the acknowledgement in 

the proposed rule that connectivity is 

vital for this species’ recovery, the 

revised critical habitat designation 

decreases connectivity or does not 

include corridors for movement. One 

peer reviewer asserted that habitat 

fragmentation will only promote the 

17290 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

decline of this DPS and goes directly 

against the recommendations of the 

Recovery Plan that the Service adopted. 

Our Response: We agree with the peer 

reviewers that habitat connectivity is 

important to allow for movement 

between ewe groups and to maintain 

genetic variation. We also agree with the 

peer reviewer that an extensive amount 

of scientific evidence illustrates the 

importance of habitat connectivity, and 

we considered this information during 

the development of this critical habitat 

designation. We acknowledge that areas 

potentially providing connectivity 

between Units 1 and 2A and between 

Units 2B and 3 were included in the 

2001 critical habitat designation; 

however, based on our reevaluation of 

the data available at the time of the 2001 

designation, data obtained since, and 

our revised methodology for delineating 

critical habitat, we find that those areas 

do not meet the definition of critical 

habitat because the available data do not 

identify specific areas between these 

units that contain the physical or 

biological features essential to the 

conservation of the DPS. 

The best available data do not provide 

any information indicating what areas, 

if any, Peninsular bighorn sheep use as 

connectivity corridors within the 

expansive areas between Units 1 and 2A 

and Units 2B and 3. Although the peer 

reviewers presented data showing that 

at least one collared ram has moved 

between Units 1 and 2A, we do not have 

occurrence data suggesting a specific 

corridor between these units. In 

addition, we have no data documenting 

natural sheep movement between Units 

3 and 2B. As such we have not included 

specific corridors between Units 1 and 

2A or between Units 3 and 2B in the 

designation. However, we will continue 

to monitor movement between these 

units to determine if specific movement 

corridors exist. In contrast, where the 

available data do support the 

identification of specific areas utilized 

by the DPS as movement corridors, such 

as between the ewe groups in the Santa 

Rosa Mountains and the Vallecito 

Mountains ewe group, those areas are 

included in the critical habitat 

designation. 

We recognize this finding is different 

than what is outlined as essential 

habitat in the 2000 Recovery Plan and 

what was designated as critical habitat 

in the 2001 designation (which largely 

adopted the boundary delineated in the 

Recovery Plan). The Recovery Plan and 

2001 critical habitat rule note that 

allowing for ram movement between 

ewe groups is important for maintaining 

genetic variation in the Peninsular 

bighorn sheep metapopulation. While 

we believe connectivity areas are 

important for the Peninsular bighorn 

sheep’s recovery, we have significantly 

more data available today than when the 

Recovery Plan and 2001 critical habitat 

were finalized. We have utilized the 

currently available data to more 

precisely identify areas meeting the 

definition of critical habitat; in 

particular, areas related to connectivity. 

Such areas are included in this 

designation where the data support the 

determination that such areas contain 

the physical and biological features 

essential to the conservation of the DPS. 

For other potential connectivity areas 

that were included in the 2001 

designation, the available movement 

and occurrence data we have for those 

areas do not support the identification 

of specific areas that provide a 

movement corridor that is essential for 

the conservation of the DPS. 

We believe it is important to note that 

critical habitat designation is a different 

process than development of a recovery 

plan. A critical habitat designation is a 

specific regulatory action that defines 

specific areas as critical habitat in 

accordance with the statutory 

definition. A recovery plan is a 

guidance document developed in 

cooperation with partners, which 

provides a roadmap with detailed sitespecific management actions to help 

conserve listed species and their 

ecosystems. The term ‘‘essential,’’ as 

used in the recovery plan, is not 

necessarily used in the same manner as 

it is used in the definition of critical 

habitat. The recovery plan provides 

important information about the species 

and the actions that are needed to bring 

about its recovery, while critical habitat 

identifies specific areas that are 

essential for the species’ conservation. 

The deviation from the Peninsular 

bighorn sheep Recovery Plan boundary 

and the 2001 final critical habitat 

designation is primarily the result of 

using a revised methodology to 

delineate critical habitat. Our revised 

methodology incorporates new 

information to best identify areas that 

meet the definition of critical habitat 

(see ‘‘Summary of Changes From the 

2001 Critical Habitat Designation To the 

2007 Proposed Rule To Revise Critical 

Habitat’’ section for more discussion). 

As a result, the final revised critical 

habitat boundary does not include areas 

the Recovery Plan identified as 

necessary for the conservation of the 

Peninsular bighorn sheep that we since 

determined (based on the best available 

data at this time) are not essential for 

the conservation of this DPS. Therefore, 

we believe the final revised critical 

habitat boundary more precisely maps 

the physical and biological features that 

occur within the geographical area 

occupied by the Peninsular bighorn 

sheep at the time of listing, which 

includes those areas containing 

preferred habitat for sheep use. 

There are likely additional areas 

outside of the final revised critical 

habitat boundary that contain some of 

the PCEs, including areas identified in 

the Recovery Plan and 2001 critical 

habitat. We recognize that areas outside 

of the critical habitat boundary are 

likely utilized by Peninsular bighorn 

sheep (primarily for movement of rams 

between ewe groups). However, as 

stated above, the data available at this 

time do not support the identification of 

specific areas containing the essential 

features that provide a movement 

corridor between Units 1 and 2A or 

between Units 2B and 3. Additionally, 

Unit 2A is continuous with Unit 2B and 

these units contain a large contiguous 

portion of the Peninsular Ranges 

allowing for movement between six ewe 

groups with these units. Furthermore, 

although we do not have information to 

identify specific movement corridors, 

the areas between Units 1 and 2A or 

between Units 2B and are steep, rugged, 

and remote and there are no perceived 

threats in these areas. Therefore, we are 

confident that these areas will still be 

available for any natural sheep 

movements between units allowing for 

genetic connectivity. 

We recognize that the designation of 

critical habitat may not include all of 

the habitat that may eventually be 

determined to be necessary for the 

recovery of Peninsular bighorn sheep, 

and critical habitat designations do not 

signal that habitat outside the 

designation is unimportant or may not 

contribute to recovery. Areas outside the 

final revised critical habitat designation 

will continue to be subject to 

conservation actions implemented 

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

regulatory protections afforded by the 

section 7(a)(2) jeopardy standard and 

the prohibitions of section 9 of the Act 

if actions occurring in these areas may 

affect sheep; these protections and 

conservation tools will continue to 

contribute to recovery of the DPS. 

Please see the ‘‘Criteria Used To 

Identify Critical Habitat’’ and 

‘‘Summary of Changes From the 2001 

Critical Habitat Designation To the 2007 

Proposed Rule To Revise Critical 

Habitat’’ sections of this final rule for 

further discussion of this topic. 

Comment 2: Two peer reviewers 

stated that exclusion of areas under the 

Agua Caliente Band of Cahuilla Indians 

Tribal Habitat Conservation Plan (Tribal 

HCP) and Coachella Valley Multiple 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17291 

Species Habitat Conservation Plan 

(Coachella Valley MSHCP) is 

inappropriate because the Coachella 

Valley MSHCP and the Tribal HCP are 

not yet approved, and therefore provide 

absolutely no protection to Peninsular 

bighorn sheep or their habitat at this 

time. One peer reviewer stated it would 

be pre-decisional to exclude critical 

habitat based on these plans. Another 

peer reviewer suggested that managers 

and those making policy decisions 

should have solid documentation that 

the Peninsular bighorn sheep will 

receive the same level of enforceable 

protection from the Tribal HCP and the 

Coachella Valley MSHCP as provided by 

the Endangered Species Act. One peer 

reviewer stated that the proposed 

exclusion of tribal lands and lands 

covered by the Coachella Valley MSHCP 

are not supported by the best available 

science and that removal of these areas 

from critical habitat will increase the 

threats to the persistence and recovery 

of Peninsular bighorn sheep. 

Our Response: We believe the 

exclusion of the identified tribal lands 

and the lands covered by the Coachella 

Valley MSHCP, which is now final, is 

appropriate based on the potential 

impacts associated with designating 

these areas as critical habitat. Section 

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

‘‘Secretary shall designate critical 

habitat, and make revisions thereto, on 

the basis of the best scientific data 

available and after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact, of specifying any 

particular area as critical habitat.’’ The 

Act further states that the Secretary may 

exclude any area from critical habitat if 

he determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless he determines, 

based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned. 

We believe that critical habitat 

designation would negatively impact 

the working relationships and 

conservation partnerships we have 

formed with permittees, the Tribe, and 

other private landowners (i.e., other 

relevant impacts), and could result in 

decreased voluntary conservation efforts 

to benefit the Peninsular bighorn sheep. 

Additionally, as explained in detail in 

the ‘‘Application of Section 4(b)(2)— 

Other Relevant Impacts—Conservation 

Partnerships’’ section of this final rule, 

we believe these conservation 

partnerships will provide as much or 

more benefit than consultation under 

section 7(a)(2) related to the critical 

habitat designation (the primary benefit 

of a designation). 

The exclusion of Agua Caliente Band 

of Cahuilla Indians lands is not based 

on the 2007 draft Tribal HCP, but is 

primarily based on the importance of 

our government-to-government 

relationship with the Agua Caliente 

Band of Cahuilla Indians, our 

conservation partnership with the Tribe, 

and their current management of tribal 

lands as described in the 2001 Tribal 

Conservation Strategy (adopted by the 

Tribe on November 12, 2002, and 

implemented since its adoption). 

Furthermore, in accordance with the 

Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in most 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. Conversely, such 

designation is often viewed by tribes as 

unwarranted and an unwanted intrusion 

into tribal self governance, thus 

compromising the government-togovernment relationship essential to 

achieving our mutual goal of managing 

for healthy ecosystems upon which the 

viability of threatened and endangered 

species populations depend. As an 

indication of the success of our 

partnership with the Agua Caliente 

Band of Cahuilla Indians and their 

commitment to natural resources 

management, a regional HCP is being 

developed, which incorporates 

protections and management of this 

DPS’s essential physical and biological 

features. 

The protections provided by the 

Coachella Valley MSHCP and the 

Tribe’s resource management are 

consistent with the mandates under 

section 7 of the Act to avoid destruction 

or adverse modification of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. 

These established partnerships 

demonstrate a continued commitment to 

conservation and aid in fostering 

additional partnerships for the benefit of 

all sensitive species on tribally-owned 

or controlled lands, Coachella Valley 

MSHCP permittee-owned/controlled 

lands, and other private lands. Finally, 

we determined that the Tribe’s 

management of its resources provides 

protection and management, in 

perpetuity, of lands that meet the 

definition of critical habitat for 

Peninsular bighorn sheep in Units 1 and 

2A, and the Coachella Valley MSHCP 

provides further evidence of this 

partnership and continued protection of 

these features. Furthermore, we 

determined that the routine 

implementation of conservation 

measures in these units, combined with 

protections provided under the jeopardy 

standard of section 7 of the Act in these 

two occupied units, provide assurances 

that the DPS will not go extinct as a 

result of these exclusions. 

Please see the ‘‘Application of Section 

4(b)(2)—Other Relevant Impacts— 

Conservation Partnerships’’ section of 

this final rule for additional discussion 

of the Coachella Valley MSHCP and 

tribal conservation strategies and the 

benefits provided to Peninsular bighorn 

sheep. 

Comment 3: Several peer reviewers 

stated that alluvial fans and lowelevation habitat provide important 

resources for Peninsular bighorn sheep 

and noted that the proposed critical 

habitat does not include extensive areas 

of alluvial fans and other low-elevation 

habitat that were included in the 2001 

critical habitat designation. Two peer 

reviewers stated that, based on a 

geographic information systems (GIS) 

evaluation of proposed critical habitat 

by California Department of Parks and 

Recreation staff, nearly 250,000 ac 

(101,172 ha) of habitat have been 

removed from the eastern side of critical 

habitat, as compared to critical habitat 

designated in 2001. The peer reviewers 

further stated this area includes alluvial 

fans, washes, bajadas (i.e., converging 

alluvial fans), canyon bottoms, and open 

playas, which provide important forage 

resources and which are used during 

movement between more mountainous 

terrain. One peer reviewer stated that 

the fact that bighorn sheep use gentle 

terrain, such as alluvial fans and 

washes, despite potentially increasing 

their risk of predation, provides strong 

evidence that these areas provide 

critically important resources. 

Another peer reviewer commented 

that the 2007 proposed revision 

eliminates key low-slope areas and 

raises the boundary upslope, which they 

assert is a contradiction to the best 

available science. One peer reviewer 

noted there are contradictions of slope 

17292 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

condition in the rule based on straight 

lines drawn on the critical habitat maps, 

even though the text in the proposed 

rule describes the importance of gentle 

slopes to bighorn sheep. 

Our Response: We agree that lowelevation habitat is important for 

Peninsular bighorn sheep because these 

areas can provide seasonal abundance of 

forage vegetation and water resources. 

In our August 26, 2008, NOA (73 FR 

50498), we announced a revision to our 

criteria used to identify critical habitat 

to include occurrence data from 1988 to 

2008. Because of comments received 

from peer reviewers and the public 

about low-elevation habitat and the 

revision of our criteria used to identify 

critical habitat to include a larger 

occurrence data set, we reevaluated and 

revised our proposed revised critical 

habitat boundary. In our August 26, 

2008, NOA (73 FR 50498), we 

announced changes to the proposed 

critical habitat revision, including the 

addition of 36,240 ac (14,667 ha) of 

habitat for Peninsular bighorn sheep, 

the majority of which is low-elevation, 

low-slope, or alluvial-fan habitat on the 

eastern edge of the Peninsular Ranges. 

We acknowledge there are some lowelevation areas included in the 2001 

designation of critical habitat that are 

not included in this final designation. 

However, currently available data do 

not support a determination that these 

areas outside the geographical area 

occupied by the species at the time of 

listing are essential for the conservation 

of the sheep; therefore these areas do 

not meet the definition of critical 

habitat. 

Please see the ‘‘Criteria Used To 

Identify Critical Habitat,’’ the 

‘‘Summary of Changes From the 2001 

Critical Habitat Designation to the 2007 

Proposed Rule To Revise Critical 

Habitat,’’ and the ‘‘Summary of Changes 

From the 2007 Proposed Rule To Revise 

Critical Habitat to This Final Rule To 

Revise Critical Habitat’’ sections of this 

final rule for further discussion of this 

topic. 

Comment 4: One peer reviewer 

objected to the statement in the 

proposed critical habitat rule that 

essential habitat delineated in the 

Recovery Plan (and in the 2001 critical 

habitat designation) included a ‘‘buffer’’ 

of 0.5 mile (mi) (0.8 kilometer (km)) 

around slopes greater than or equal to 

20 percent. The peer reviewer stated 

that buffer areas identified in the 

Recovery Plan were added as ‘‘essential 

habitat’’ (as defined in the Recovery 

Plan) because these areas include 

important resources for bighorn sheep; 

they were not added as a buffer around 

essential habitat. The peer reviewer 

reiterated what was written in the 

Recovery Plan (i.e., that bighorn sheep 

have been observed at great distances 

from slopes of greater than or equal to 

20 percent, and the recovery team chose 

to define essential habitat as those areas 

within 800 m (2,625 ft) of slopes of 

greater than or equal to 20 percent). 

Additionally, the peer reviewer stated 

that the Peninsular bighorn sheep 

recovery team recognized that this area 

would capture the majority of 

Peninsular bighorn sheep use in these 

areas and that inclusion of these areas 

represented inclusion of important 

resources. 

Our Response: The Recovery Plan 

acknowledges that the 800-m (2,625-ft) 

area around slopes greater than or equal 

to 20 percent is a buffer. Page 157 of the 

Recovery Plan describes the process of 

delineating these areas as follows: ‘‘A 

buffer of 0.8 kilometer (0.5 mile) was 

then applied to the perimeter of all areas 

of slope [greater than or equal to 20 

percent] in the derivative grid.’’ The 

inclusion of this area around 20 percent 

slopes adds expanses of land to the 

Recovery Plan area and the 2001 critical 

habitat designation, but we have 

relatively little to no occurrence data 

indicating that sheep use those areas. By 

including these 0.5-mi (0.8-km) buffers 

in the Recovery Plan, a boundary was 

developed that included almost any 

location that a Peninsular bighorn sheep 

could possibly roam, but such a buffer 

would not meet the statutory definition 

of ‘‘critical habitat,’’ because such areas 

are not essential for the conservation of 

the DPS. As stated in section 3(5)(C) of 

the Act, except in those circumstances 

determined by the Secretary, critical 

habitat shall not include the entire 

geographical area which can be 

occupied by the threatened or 

endangered species. Please see the 

‘‘Criteria Used To Identify Critical 

Habitat,’’ and the ‘‘Summary of Changes 

From the 2001 Critical Habitat 

Designation To the 2007 Proposed Rule 

To Revise Critical Habitat’’ sections of 

this final rule for further discussion of 

this topic. 

Comment 5: One peer reviewer stated 

that the proposed delineation does not 

appear to be based on good science or 

conservation principles and that the 

major reduction in area (as compared to 

the original critical habitat delineated in 

2001) will jeopardize the chances of 

recovery and survival of this 

population. A second peer reviewer 

stated that the proposal to remove over 

50 percent of critical habitat is contrary 

to the PCEs as well as the Recovery 

Plan. A third peer reviewer believes the 

revised critical habitat is geared towards 

sustaining the current, low population 

level of Peninsular bighorn sheep, rather 

than planning for recovery. Finally, a 

fourth peer reviewer stated it is unclear 

what changed between the time of the 

2000 Recovery Plan and today that 

would cause certain areas to be 

eliminated that were previously 

determined as essential for the DPS’s 

recovery. 

Our Response: The designation of 

critical habitat for Peninsular bighorn 

sheep is based on the best scientific data 

available regarding the DPS, including: 

(1) A compilation of data from peerreviewed, published literature; (2) 

unpublished or non-peer reviewed 

survey and research reports; and (3) 

opinions of biologists knowledgeable 

about Peninsular bighorn sheep and 

their habitat. Consequently, the PCEs, as 

described in this final rule, represent 

our best assessment of what habitat 

components are essential for the 

conservation of Peninsular bighorn 

sheep, and we believe that our final 

revised designation is adequate to 

ensure the conservation of this DPS 

throughout its extant range. 

The Act defines critical habitat as (1) 

the specific areas within the 

geographical area occupied by the 

species at the time it is listed on which 

are found those physical or biological 

features (a) essential to the conservation 

of the species, and (b) which may 

require special management 

considerations or protection, and (2) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. 

Consistent with section 3(5)(C) of the 

Act, the designation does not include 

the entire geographical area which can 

be occupied by Peninsular bighorn 

sheep, but is limited to those areas that 

we determined meet the definition of 

critical habitat. The reduction in total 

area from what was identified as 

important for the Peninsular bighorn 

sheep in the Recovery Plan and 

designated in 2001 is primarily the 

result of: (1) Exclusions of habitat under 

section 4(b)(2) of the Act; (2) revision of 

the primary constituent elements; (3) 

revision of our criteria used to identify 

critical habitat; (4) removal of lands 

within the geographical area occupied 

by the DPS at the time it was listed that 

do not contain the physical or biological 

features as identified by the PCEs in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS; and (5) 

removal of lands outside the 

geographical area occupied by the DPS 

at the time it was listed that are not 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17293 

essential for the conservation of the 

DPS. 

The 2001 critical habitat designation 

was predominantly based on the 2000 

Recovery Plan, and we used the best 

available scientific information at that 

time to delineate critical habitat. Since 

2001, we received significant additional 

occurrence data and formulated a better 

understanding about specific habitat 

requirements of this DPS that was not 

known when we first designated critical 

habitat for the Peninsular bighorn 

sheep. We utilized this new information 

to appropriately revise the PCEs and 

criteria used to identify critical habitat, 

consistent with the Act. Additionally, 

case law has developed since 2001 

regarding the Act’s requirements and 

the definition of critical habitat (e.g., 

The Cape Hatteras Access Preservation 

Alliance v. U.S. Dep’t of the Interior, 

344 F. Supp. 2d 108 (D.D.C. 2004); 

Home Builders Ass’n of N. Cal. v. U.S. 

Fish and Wildlife Service, U.S. Dist. 

LEXIS 80255 (E.D. Cal. 2006); and 

Arizona Cattle Growers’ Ass’n v. 

Kempthorne, 534 F. Supp. 2d 1013 (D. 

Ariz. 2008)). 

Therefore, we refined our approach to 

this critical habitat designation, 

including identification of the 

geographical areas occupied by the DPS 

at the time of listing, identification of 

physical or biological features essential 

to the conservation of the DPS, 

determination of any areas outside the 

geographical area occupied by the DPS 

at the time of listing that are essential 

for the conservation of the DPS, and 

appropriate exclusions under section 

4(b)(2) of the Act. A complete 

discussion of how data collected since 

the 2001 designation were utilized to 

refine the proposed designation can be 

found in the ‘‘Summary of Changes 

From the 2001 Critical Habitat 

Designation To the 2007 Proposed Rule 

To Revise Critical Habitat’’ and 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat To This Final Rule To Revise 

Critical Habitat’’ sections of this final 

rule. 

We delineated critical habitat for the 

Peninsular bighorn sheep using the 

criteria presented in the ‘‘Criteria Used 

To Identify Critical Habitat’’ section of 

this final rule. Application of these 

criteria results in the determination of 

the physical and biological features that 

are essential to the conservation of this 

DPS, identified as the DPS’s PCEs laid 

out in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the DPS. Therefore, not 

all areas supporting the identified PCEs 

will meet the definition of critical 

habitat. 

Refer to our response to Comment 1 

for a discussion on the difference 

between critical habitat designation and 

development of a Recovery Plan. 

Our proposed designation, in 

combination with our August 26, 2008, 

NOA, which announced the addition of 

areas to the proposed designation, and 

this final designation accurately 

describe all specific areas meeting the 

statutory definition of critical habitat for 

Peninsular bighorn sheep. See the 

‘‘Summary of Changes From the 2001 

Critical Habitat Designation To the 2007 

Proposed Rule To Revise Critical 

Habitat’’ and ‘‘Summary of Changes 

From the 2007 Proposed Rule To Revise 

Critical Habitat To This Final Rule To 

Revise Critical Habitat’’ sections of this 

final rule for more information. 

Comment 6: Two peer reviewers 

pointed out that the proposed critical 

habitat rule states that researchers have 

documented movement of rams 

‘‘between up to three ewe groups.’’ The 

peer reviewers suggested this statement 

incorrectly cites Rubin et al. (1998), 

which documented male movement 

among at least six groups, and the 

proposed rule therefore underestimates 

the importance of connectivity 

throughout the range. The peer 

reviewers stated that researchers have 

documented movement of radio collared 

males and females among all eight 

subpopulations, demonstrating that 

these subpopulations are currently 

linked via animal movement. One peer 

reviewer stated that historic ram 

movement data between the northern 

Santa Rosa Mountains and the San 

Jacinto Mountains was not used in 

delineating proposed critical habitat. 

The peer reviewer further stated that 

they believe the Service has had this 

data for years and, if used, they believe 

the Service would not have developed 

a critical habitat designation lacking 

connectivity between critical habitat 

units. 

Our Response: We corrected the 

section of the critical habitat 

designation involving the Rubin et al. 

(1998) citation mentioned above and 

included the additional information on 

the metapopulation structure of 

Peninsular bighorn sheep into the PCEs 

discussion in this rule. With regard to 

historic ram movement data and 

connectivity, see our response to 

Comment 1 and the ‘‘Criteria Used To 

Identify Critical Habitat’’ and 

‘‘Summary of Changes From the 2001 

Critical Habitat Designation To the 2007 

Proposed Rule To Revise Critical 

Habitat’’ sections of this final rule for 

further discussion. 

Comment 7: One peer reviewer 

believes that the critical habitat 

designation should encompass areas of 

historical occupancy if it is intended to 

aid in the recovery of the Peninsular 

bighorn sheep. 

Our Response: Please refer to our 

response to Comment 5 for the statutory 

definition of critical habitat. The Service 

may designate as critical habitat areas 

outside the geographical area occupied 

by a species at the time it was listed 

(i.e., historical habitat) only when we 

can determine that those areas are 

essential for the conservation of the 

species (section 3(5)(A)(ii) of the Act). 

We have determined that designating 

critical habitat solely within the 

geographical area occupied by the DPS 

at the time it was listed will provide for 

the conservation of the Peninsular 

bighorn sheep. We, therefore, did not 

include areas of historical occupancy 

that were outside of these areas. As 

previously mentioned in this final rule, 

critical habitat designations do not 

signal that habitat outside the 

designation is unimportant or may not 

contribute to a species’ recovery. See 

our response to Comment 5 above and 

the ‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final rule for 

more information. 

Comment 8: One peer reviewer had 

concerns about designating critical 

habitat based on occupancy at the time 

of listing. The peer reviewer identified 

what the peer reviewer believed to be 

two shortcomings of this approach, as 

follows: (1) Critical habitat is designated 

based on the distribution of a species at 

its lowest abundance level, and most 

likely its most limited spatial 

distribution, thereby reducing the 

probability of encompassing areas 

required for full recovery; and (2) 

designated critical habitat assumes that 

all areas have been sufficiently surveyed 

to document occupancy and doesn’t 

address false absences. Another peer 

reviewer believes that the Service failed 

to recognize false absences as a result of 

this approach, and that this is a grave 

error because the peer reviewer believes 

many important areas may not be 

included in the critical habitat 

designation. 

Our Response: In response to the peer 

reviewer’s comment and other public 

comments related to the delineation of 

critical habitat based on occupancy at 

the time of listing, we revised our 

criteria used to delineate critical habitat 

as announced in the NOA published in 

the Federal Register on August 25, 2008 

(73 FR 50498). As a revision to our 

criteria, we included areas with 

occupancy data indicating they are 

currently occupied or areas with 

occupancy data indicating they were 

occupied at some point between 2008 

17294 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(present time) and 1988 (i.e., the time of 

listing (1998) less 10 years, which is the 

average lifespan of Peninsular bighorn 

sheep). Use of a data set that considers 

a larger time-span of occurrence data 

accounts for the large fluctuations in 

Peninsular bighorn sheep population 

levels over the last two decades, and 

provides a reasonable delineation of the 

geographical area occupied by the 

species at the time of listing. After 

rangewide estimates were made in the 

1970s, the population was estimated as 

high as 1,171 in 1974 (Weaver 1974, p. 

5). The population was estimated at 570 

individuals in 1988 (Weaver 1989, p. 

11). We reported in the final listing rule 

for Peninsular bighorn sheep that the 

population at that time (1998) was 

approximately 280 individuals (March 

18, 1998, 63 FR 13134). The most recent 

estimate from 2006 puts the population 

at approximately 800 individuals 

(Torres 2007, p. 1). By considering 

occurrence data between 1988 and the 

present, we are not designating critical 

habitat based on the distribution of the 

DPS at its lowest abundance level, nor 

its most limited spatial distribution as 

the peer reviewer suggested. 

We realize that false absences can 

result from rangewide surveys for 

Peninsular bighorn sheep. Additionally, 

we are aware that not all areas within 

the range of the DPS have been surveyed 

or studied equally. For example, there is 

a disproportionate amount of data from 

the northern half of the Peninsular 

Ranges in the United States, compared 

to the southern half that has not been 

studied as thoroughly. Regardless, we 

used the best available scientific 

information and occurrence data in 

determining areas occupied by 

Peninsular bighorn sheep. No 

information is available to indicate 

which portions of the DPS’s range might 

include false absences. 

Comment 9: One peer reviewer 

believes that delineation of critical 

habitat must not rely on simple 

occurrence data alone, but should also 

rely on robust methods of identifying 

and mapping critical habitat based on 

habitat features. 

Our Response: We agree with the peer 

reviewer’s statement. We delineated 

critical habitat based on occurrence data 

and a combination of habitat features. 

We designated critical habitat for the 

Peninsular bighorn sheep within areas 

that we determined were occupied at 

the time of listing and that contain the 

physical and biological features 

essential to the conservation of the DPS. 

Lands were designated based on 

sufficient essential features being 

present to support the life processes. 

Please see our response to Comment 5 

and the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this final 

rule for detailed discussions. 

Comment 10: One peer reviewer 

noted a large number of known 

Peninsular bighorn sheep locations 

(documented post-listing) that were not 

included in the proposed revised 

critical habitat and further stated that it 

was unclear why these areas were not 

included. Another peer reviewer listed 

multiple areas that are documented as 

occupied at or since the time of listing 

but were not included in the proposed 

critical habitat designation. The peer 

reviewer indicated that occurrence data 

documenting occupancy were provided 

to the Service prior to the delineation of 

proposed critical habitat, and further 

stated that these areas provide lambing 

habitat, foraging areas, connectivity 

between mountainous areas, and 

important water sources. The peer 

reviewer determined that nearly 1,000 

of these locations were not included in 

the proposed critical habitat following 

an examination of occurrence data 

collected during 2001 to 2003 with the 

use of Global Positioning System (GPS) 

collars in areas between Highway 74 

and the southern edge of the Vallecito 

Mountains. Finally, another peer 

reviewer believes there are large areas 

without location data of Peninsular 

bighorn sheep that are included as 

critical habitat and areas with bighorn 

sheep location data that are not 

included as critical habitat. 

Our Response: Upon receiving the 

peer reviewers’ comments, we examined 

the occurrence data considered in the 

delineation of the proposed revised 

critical habitat and found that a set of 

data was missing from our GIS database. 

Subsequently, we included that 

occurrence data into our GIS database 

and double-checked to ensure that all 

occurrence records submitted to the 

Service were included for our analyses. 

In light of this data and our revised 

criteria used to identify critical habitat 

(i.e., a data set that includes data since 

1988), we revised our proposed critical 

habitat boundary, as reported in the 

NOA, to include the areas represented 

by the location data (August 26, 2008, 

73 FR 50498). 

Comment 11: One peer reviewer 

suggested the proposed revised critical 

habitat could have been improved had 

it been an ‘‘open process’’ that included 

the expertise of biologists on the 

Recovery Team, as well as others who 

have worked with bighorn sheep for 

decades, like what was done for the 

Peninsular bighorn sheep Recovery 

Plan. The peer reviewer believes that 

the resulting proposed critical habitat 

designation reflects a hurried process 

that used arbitrary decision-making, is 

not scientifically based, and contradicts 

the Services’ Recovery Plan for the DPS. 

Our Response: Contrary to the 

opinion of the peer reviewer, 

designating critical habitat is an open 

process. We solicited additional expert 

opinion and public comment through 

publication of our proposed revised rule 

that was developed using the best 

scientific data available at that point in 

time. As stated in the proposed rule, 

comments and materials received, as 

well as supporting documentation used 

in the preparation of the proposed rule, 

are available for public inspection at the 

Carlsbad Fish and Wildlife Office. In 

accordance with section 4(5)(A) of the 

Act and the regulations at 50 CFR 

424.16(c)(1), the Secretary shall— 

(i) Publish notice of the proposal in 

the Federal Register; 

(ii) Give actual notice of the proposed 

regulation (including the complete text 

of the regulation) to the State agency in 

each State in which the species is 

believed to occur, and to each county or 

equivalent jurisdiction therein in which 

the species is believed to occur, and 

invite the comment of each such agency 

and jurisdiction; 

(iii) Give notice of the proposed 

regulation to any Federal agencies, local 

authorities, or private individuals or 

organizations known to be affected by 

the rule; 

(iv) Insofar as practical, and in 

cooperation with the Secretary of State, 

give notice of the proposed regulation to 

list, delist, or reclassify a species to each 

foreign nation in which the species is 

believed to occur or whose citizens 

harvest the species on the high seas, and 

invite the comment of such nation; 

(v) Give notice of the proposed 

regulation to such professional scientific 

organizations as the Secretary deems 

appropriate; and 

(vi) Publish a summary of the 

proposed regulation in a newspaper of 

general circulation in each area of the 

United States in which the species is 

believed to occur. Further, the 

regulations at 50 CFR 424.16(c)(2) state 

that at least 60 days shall be allowed for 

public comment following publication 

in the Federal Register of a rule 

proposing the listing, delisting, or 

reclassification of a species, or the 

designation or revision of critical 

habitat. 

On May 14, 2007, representatives 

from the Carlsbad Fish and Wildlife 

Office and the Regional Office, 

including the Regional Director, met 

with recovery team members in part to 

inform members that we were initiating 

work to propose revisions to designated 

critical habitat for the Peninsular 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17295 

bighorn sheep. At that meeting, we 

requested that recovery team members 

submit any data they wanted us to 

consider in our proposed revision. We 

received data from one recovery team 

member in response to this request. 

During the development of this 

revision to critical habitat for the 

Peninsular bighorn sheep, we followed 

the appropriate guidance and 

regulations regarding inclusion of expert 

biologists and other appropriate entities, 

including the general public. In 

accordance with our policy on peer 

review published in the Federal 

Register on July 1, 1994 (59 FR 34270), 

we solicited expert opinions from five 

knowledgeable individuals with 

scientific expertise that included 

familiarity with the DPS, the geographic 

region in which it occurs, and 

conservation biology principles. We 

reviewed all comments received from 

the peer reviewers and the public for 

substantive issues and new information 

regarding the designation of critical 

habitat for Peninsular bighorn sheep. 

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

Secretary may procure the services of 

appropriate public and private agencies 

and institutions and other qualified 

persons in developing and 

implementing recovery plans. However, 

the Act limits the use of recovery teams 

appointed under this subsection to the 

development and implementation of 

recovery plans. The Act does not 

contain a provision for development of 

critical habitat teams. However, the 

Service could set up a critical habitat 

team, but it would be subject to the 

Federal Advisory Committee Act 

(FACA), unlike a recovery team that is 

exempt from FACA. Since the Act 

contains specific timeframes for 

completion of critical habitat 

designations, creating a critical habitat 

team would slow the process of 

designation of critical habitat causing us 

to be out of compliance with the 

statutory requirements of the Act. 

However, consistent with our peer 

review policy and the Act’s standard of 

using the best available scientific data, 

we openly and publically solicited 

information for consideration in rule 

development and solicited peer review 

of our proposal. 

In total, we received comments from 

all five peer reviewers that we solicited 

comments from, and we received 5,299 

comments from the general public 

during two public comment periods and 

two public hearings. Therefore, we 

believe we followed an open process 

during development of the Peninsular 

bighorn sheep revised critical habitat 

designation. 

Regarding the peer reviewer’s beliefs 

that the proposed critical habitat 

designation reflects a hurried process 

that used arbitrary decision-making and 

was not scientifically based, we disagree 

with this comment. As noted above, we 

solicited information from the entire 

Peninsular bighorn sheep recovery team 

prior to the proposed revisions to the 

designation. We also solicited expert 

opinions from five knowledgeable 

individuals with scientific expertise that 

included familiarity with the DPS, the 

geographic region in which it occurs, 

and conservation biology principles. 

Additionally, the designation of critical 

habitat for Peninsular bighorn sheep is 

based on the best scientific data 

available regarding the DPS, including: 

(1) A compilation of data from peerreviewed, published literature; (2) 

unpublished or non-peer reviewed 

survey and research reports; and (3) 

opinions of biologists knowledgeable 

about Peninsular bighorn sheep and 

their habitat (see our response to 

Comment 5 and the ‘‘Criteria Used To 

Identify Critical Habitat’’ section for 

additional discussion on use of 

available scientific data and how this 

data was used to develop criteria for 

identifying critical habitat). 

Comment 12: One peer reviewer 

believes it is impossible to duplicate the 

delineation of the revised critical habitat 

based on the Service’s poorly described 

methods and an inadequate explanation 

of how the PCEs were used to delineate 

critical habitat. Another peer reviewer 

believes the proposed rule does not 

provide specifics on how proposed 

revised critical habitat was delineated, 

nor does it include discussion of the 

actual methods of identifying and 

mapping the PCEs. The same peer 

reviewer stated that along several 

sections of the proposed revised critical 

habitat boundary, the boundary line 

follows a perfectly straight course, 

which does not appear to conform to (or 

follow) any obvious biological or 

topographical feature; therefore, the 

peer reviewer questioned how this 

boundary line was placed. Another peer 

reviewer could not identify the specific 

methods used to create the revised 

boundary of the proposed rule and 

further stated that the boundary lines 

give the appearance of being handdrawn, rather than based on a scientific 

method. 

Our Response: As discussed in our 

response to Comment 5 above and the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final rule, we 

delineated critical habitat for the 

Peninsular bighorn sheep using the 

following criteria: (1) Areas that contain 

the PCEs required by the DPS as 

determined from aerial imagery and GIS 

data on vegetation, elevation, and slope; 

(2) areas within the ewe group 

distribution (i.e., subpopulations) 

boundaries identified by Rubin et al. 

(1998); (3) areas occupied by the 

subspecies between 2008 (present time) 

and 1988; and (4) areas where 

occupancy data points indicate repeated 

Peninsular bighorn sheep use, but 

which were not captured within the ewe 

group distribution boundaries identified 

by Rubin et al. (1998). Application of 

these criteria results in the 

determination of the physical and 

biological features that are essential to 

the conservation of this DPS, identified 

as the DPS’s PCEs laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS. Since the 2007 

proposed rule, we revised the ‘‘Criteria 

Used To Identify Critical Habitat’’ 

section of this rule to provide more 

detail and description of the stepwise 

process used, data considered, habitat 

features mapped, and method used to 

delineate critical habitat boundaries. 

The boundaries were drawn with GIS 

software using detailed aerial imagery 

maps and data layers of occurrences and 

habitat information. Any straight lines 

along the boundary of critical habitat are 

the result of following habitat features 

that are naturally straight in appearance. 

Comment 13: One peer reviewer 

asked if a model was employed, and if 

so, describe the type and state whether 

it was based on expert opinion. 

Our Response: We did not use a 

model to delineate critical habitat for 

the Peninsular bighorn sheep. For more 

information on how we delineated 

critical habitat, see the ‘‘Criteria Used 

To Identify Critical Habitat’’ section of 

this final rule. 

Comment 14: One peer reviewer 

inquired as to whether or not PCEs were 

weighted in the process of revising 

critical habitat. 

Our Response: The PCEs were not 

weighted in the process of revising 

critical habitat. 

Comment 15: One peer reviewer 

expressed concern that Anza Borrego 

Desert State Park’s vegetation maps 

were not utilized in the critical habitat 

revision. The peer reviewer believes that 

vegetation has a critical influence on 

what type of habitat the Peninsular 

bighorn sheep use; therefore, he asserts 

that this information would have been 

instrumental in delineating a more 

accurate critical habitat boundary. 

Another peer reviewer asked which 

vegetation layer was used in delineating 

critical habitat. 

Our Response: We believed it was 

important to use a GIS vegetation data 

17296 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

layer that provided a consistent analysis 

over the entire extent of the Peninsular 

bighorn sheep range. Any vegetation 

layers that were prepared for a specific 

entity, including a park (such as Anza 

Borrego Desert State Park) or individual 

county, were not all-encompassing and 

therefore inappropriate for the analysis. 

The proposed and final revised critical 

habitat includes land in three separate 

counties (Imperial, Riverside, and San 

Diego). Therefore, the GIS layer that we 

used for the vegetation analysis portion 

of defining proposed critical habitat for 

the Peninsular bighorn sheep was the 

Fire and Resource Assessment Program 

layer created by the California 

Department of Forestry and Fire 

Protection. For further information on 

this vegetation data, see their Web site 

at: http://frap/cdf/ca/gov. This 

vegetation layer was most appropriate 

because it extended over the entire area 

of the Peninsular Ranges and allowed 

for consistency in our analysis of 

vegetation across the range of this DPS. 

Comment 16: One peer reviewer was 

concerned that our methodology 

included an elevation cut-off of 4,600 ft 

(1,400 m) to guide the critical habitat 

boundary line. The peer reviewer stated 

that, at times, Peninsular bighorn sheep 

rely on areas higher than this, especially 

on the western side of the Santa Rosa 

Mountains. 

Our Response: We acknowledge that 

Peninsular bighorn sheep have 

occasionally been observed above 4,600 

ft (1,400 m) elevation; however, it is 

commonly accepted that sheep within 

the Peninsular Ranges are primarily 

restricted to lower elevations (see the 

‘‘Primary Constituent Elements (PCEs)’’ 

section for more information). We do 

not have evidence to suggest that areas 

above 4,600 ft (1,400 m) elevation are 

essential for the conservation of this 

DPS, and the commenter did not 

provide information to support the 

assertion that sheep rely on higher 

elevations. As previously mentioned in 

this final rule, critical habitat 

designations do not signal that habitat 

outside of the designation is 

unimportant or may not contribute to 

recovery (see our response to Comment 

1 above). 

Comment 17: One peer reviewer 

stated that the rule indicates that areas 

with canopy cover greater than 30 

percent were not included as critical 

habitat. The peer reviewer asked what 

information was used to determine this 

cut-off point and what GIS data layer 

was used to identify these areas. 

Our Response: Generally, bighorn 

sheep primarily rely on their sense of 

sight to detect predators. Research 

shows that bighorn sheep will avoid 

habitat where dense vegetation reduces 

visibility and, instead, prefer to use 

habitat with vegetative canopy cover 

less than or equal to 30 percent 

(Risenhoover and Bailey 1985, p. 799; 

Etchberger et al. 1989, p. 906; Dunn 

1996, p. 1). Bighorn sheep in the 

Peninsular Ranges avoid higher 

elevations (above 4,600 ft (1,400 m)), 

likely due to decreased visibility (and 

therefore increased predation risk) 

associated with denser vegetation (i.e., 

chaparral and conifer woodland) found 

at higher elevations (Service 2000, p. 

10). 

The GIS layer that was used for the 

vegetation analysis for the proposed 

revised critical habitat designation for 

the Peninsular bighorn sheep was the 

Fire and Resource Assessment Program 

layer created by the California 

Department of Forestry and Fire 

Protection. With this layer, we were able 

to highlight areas likely to have 

vegetative canopy cover over 30 percent 

(i.e., chaparral and conifer woodland). 

Subsequently, we used detailed aerial 

imagery to focus on those areas and 

visually confirm whether or not those 

areas had canopy cover above 30 

percent. If areas appeared to have 

canopy cover over 30 percent, those 

areas were removed from the critical 

habitat delineation. Therefore, vegetated 

areas within the final revised critical 

habitat designation include only those 

areas that provide lower density 

vegetation and better visibility to detect 

potential predators. 

Comment 18: One peer reviewer 

inquired as to how we identified areas 

unlikely to be used by Peninsular 

bighorn sheep. 

Our Response: As required by section 

4(b)(2) of the Act, we used the best 

scientific data available in designating 

critical habitat, and more specifically (as 

per section 3(5)(A) of the Act), in 

determining the specific areas within 

the geographical area occupied by the 

DPS at the time of listing that contain 

the physical or biological features 

essential to the conservation of the DPS 

which may require special management 

considerations or protection, as well as 

in determining if any specific areas 

outside the geographical area occupied 

by the DPS at the time of listing are 

essential for the conservation of the 

DPS. Areas unlikely to be used by 

Peninsular bighorn sheep were 

identified by Service biologists using 

detailed aerial imagery maps of the 

Peninsular Ranges with GIS information 

on vegetation, elevation, slope, and 

sheep occurrence data from 1988 to 

2008. Please see our responses to 

Comments 5, 16, and 17 and the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section for additional 

information related to how we used the 

data to delineate critical habitat. 

Comment 19: One peer reviewer 

noted that the proposed rule (72 FR 

57740, October 10, 2007) includes 

language describing how the delineation 

of critical habitat is supported by a draft 

habitat model provided to the Service 

by Peninsular bighorn sheep biologists, 

because areas designated as critical 

habitat ‘‘roughly fall within the upper 

level habitat suitability classes derived 

from the preliminary model.’’ The peer 

reviewer believes the Service incorrectly 

interpreted the draft model, suggesting 

that the Service did not understand the 

model results. The peer reviewer also 

stated that although the recent models 

are based on two years of GPS data from 

a subset of the total population, and 

may therefore underestimate use of 

some areas, they provide support for the 

essential habitat line and the original 

(2001) critical habitat line. The peer 

reviewer believes that the models do not 

provide support for the currently 

proposed revised critical habitat 

delineation. 

Our Response: As stated in the 

proposed rule, we did not adopt the 

above mentioned predictive habitat 

model in our critical habitat delineation 

process because: (1) It was in draft form 

and had not been peer reviewed; and (2) 

it was based on only two years of GPS 

data from a subset of the Peninsular 

bighorn sheep population. In response 

to comments received from peer 

reviewers and the public, we reanalyzed 

the draft predictive habitat model. 

However, we continue to believe it is 

inappropriate to draw conclusions on 

whether the model supports or does not 

support our revised critical habitat 

designation for this DPS because there 

are limitations in the data set used to 

create the model (i.e., only two years of 

GPS data), the model is in draft form, 

and has not been peer reviewed. 

Comment 20: One peer reviewer 

believes that the proposed rule (as 

written) suggests that the proposed 

critical habitat delineation was based 

partially on ewe group delineations in 

Rubin et al. (1998). The peer reviewer 

noted that the Rubin et al. (1998) ewe 

group delineation was intended to 

document the approximate known 

distribution of ewe groups at that time. 

The peer reviewer further stated the ewe 

group delineation was not intended to 

represent essential habitat, it does not 

include additional areas used by rams, 

and it does not represent areas of 

connectivity. The peer reviewer 

clarified that the ewe group delineation 

in Rubin et al. (1998) was based on a 

small number of radiocollared sheep 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17297 

(GPS collars had not been used in the 

study at that time), it did not include 

locational information on sheep in the 

San Jacinto Mountains, and it was based 

on data collected in the mid-1990s 

when the population of Peninsular 

bighorn sheep was at its smallest known 

size. Finally, the peer reviewer contends 

that the proposed rule is implying that 

ewe-group delineations in Rubin et al. 

(1998) were based on animal locations 

collected during 1971–1996 (p. 57747). 

However, the peer reviewer stated that 

ewe-group delineations were actually 

based on data collected during 1993– 

1996; Rubin et al. (1998) did use data 

collected since 1971, but those data 

were only represented by water-hole 

count data (used to examine long-term 

abundance trends). Therefore, the peer 

reviewer believes that the ewe group 

delineations in Rubin et al. (1998) 

present a minimum distribution of 

bighorn sheep in the Peninsular Ranges. 

Our Response: As stated in this final 

rule and the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of the NOA (73 

FR 50498, August 26, 2008), we mapped 

ewe group areas from Rubin et al. (1998) 

over GIS imagery of the Peninsular 

Ranges to delineate the distribution of 

ewe groups in the proposed revised 

critical habitat as an initial step in the 

delineation process. We consider Rubin 

et al. (1998) to be the best available data 

on Peninsular bighorn sheep ewe group 

distribution. The ewe group 

delineations presented in Rubin et al. 

(1998) were based on data collected 

during 1993 to 1996 (not 1971 to 1996 

as incorrectly stated in the proposed 

rule (72 FR 57740, October 10, 2007)), 

when the population of Peninsular 

bighorn sheep was at historically low 

levels. Therefore, the ewe group 

delineations present a minimum 

distribution of bighorn sheep in the 

Peninsular Ranges. However, this is the 

only data we are aware of that identifies 

the distribution of ewe groups and 

subgroups within the Peninsular 

Ranges. Furthermore, we believe that 

the ewe groups presented in Rubin et al. 

(1998) accurately depict the general 

locations of the known ewe groups in 

these ranges and provide a logical 

starting point for the delineation of 

critical habitat. 

Comment 21: One peer reviewer 

believes that climate change will 

undoubtedly have an effect on habitat, 

and changes in temperature and 

precipitation will likely increase the 

importance of upper elevation habitats. 

Additionally, the peer reviewer believes 

the proposed revision to critical habitat 

excludes some high elevation areas 

currently occupied by bighorn sheep 

and reduces the protection of habitat 

that will be essential for conservation of 

the Peninsular bighorn sheep in the 

future. 

Our Response: Peninsular bighorn 

sheep generally do not use the upper 

elevation habitats of the Peninsular 

Ranges at this time because those areas 

are more densely vegetated and provide 

conditions of poor visibility. For further 

discussion, see our responses to 

Comments 16 and 17. 

We acknowledge that climate change 

could result in changes in the resources 

and habitat condition along an 

elevational gradient in the Peninsular 

Ranges. However, the scientific 

evidence available at this time does not 

suggest that upper elevation habitats in 

the Peninsular Ranges will become more 

visually open (i.e., more suitable for 

Peninsular bighorn sheep) as a result of 

a climate change scenario like that 

described by the peer reviewer. The 

peer reviewer did not submit any 

specific data supporting the contention 

for the need to expand critical habitat to 

include currently unoccupied upper 

elevation habitat. We are unaware of 

any studies or data that would indicate 

this request is appropriate. In fact, Epps 

et al. (2004, p. 111) applied a climate 

change model that assumed an increase 

in temperature of 2 degrees Celsius and 

a decrease in precipitation of 12 percent 

and found no change in the probability 

of extinction for sheep in those ranges 

supporting the Peninsular bighorn 

sheep. Should additional data become 

available, we may revise this final 

critical habitat designation, subject to 

available funding and other 

conservation priorities. 

Comment 22: One peer reviewer 

agreed with the Service regarding 

correction of an earlier error to 

recognize this listed entity as a DPS of 

the subspecies Ovis canadensis nelsoni. 

The peer reviewer also stated that no 

attempt was made by the Service in the 

proposed rule to give the reader a full 

geographic picture of how this DPS fits 

into the larger distribution of that 

subspecies. The peer reviewer believes 

that this animal should be referred to as 

a DPS, avoiding the term subspecies. 

The peer reviewer believes that if 

Peninsular bighorn sheep is defined as 

simply ‘‘bighorn sheep in the Peninsular 

Ranges,’’ then the word Peninsular in 

that phrase is redundant and 

unnecessary. The peer reviewer believes 

the problem is that the use of Peninsular 

bighorn sheep in this context gives the 

reader a false impression that there is 

something unique and different about 

this subspecies. The peer reviewer 

suggested this could be avoided by 

referring to the animal as ‘‘bighorn 

sheep in the Peninsular Ranges.’’ 

Another peer reviewer stated that the 

commonly accepted vernacular name 

for Ovis canadensis nelsoni is Nelson’s 

bighorn sheep and not Peninsular 

bighorn sheep. The peer reviewer 

suggested the Service refer to this DPS 

throughout the rule as ‘‘Nelson’s 

bighorn sheep in the Peninsular 

Ranges.’’ 

Our Response: As discussed in the 

Background section of this final rule, we 

are formally changing the listed entity 

as a DPS of the desert bighorn sheep, 

Ovis canadensis nelsoni, and this final 

rule includes such change to the list of 

Endangered and Threatened Wildlife at 

50 CFR 17.11(h). Within this final rule, 

we believe it is appropriate to continue 

to refer to these sheep with the common 

name Peninsular bighorn sheep. 

Further, we will refer to this listed 

entity as a DPS, not a species or 

subspecies as we have in previous 

Federal Register publications. We also 

have included information on the 

geographic distribution of the desert 

bighorn sheep subspecies, of which 

Peninsular bighorn sheep are a DPS, in 

the ‘‘Background’’ section of this final 

rule. 

Comment 23: One peer reviewer 

noted that in the proposed rule the 

Service stated it ‘‘has been hypothesized 

that desert bighorn sheep can survive 

without a permanent water source,’’ 

although the Service did not provide a 

citation. The peer reviewer believes the 

most appropriate citation should have 

been Krausman et al. (1985), which 

demonstrated this to be true for a 

Sonoran Desert population. The peer 

reviewer further believes that more 

meaningful discussion would have 

compared high temperatures for the 

population studied by Krausman et al. 

(1985) with those in the Peninsular 

Ranges, from which a greater need for 

water could be surmised. The same peer 

reviewer noted that the Service also did 

not provide a citation in the proposed 

rule when referring to water as 

‘‘especially important to lactating ewes. 

* * *’’ The peer reviewer believes that 

Bleich et al. (1997) refuted this as a 

myth. 

Our Response: In light of the peer 

reviewer’s comment, we included the 

citation of Krausman et al. (1985) into 

our discussion of water in the ‘‘Primary 

Constituent Elements (PCEs)’’ section of 

this final rule. All other variables (e.g., 

vegetation, elevation, climate, terrain) 

being the same, we agree with the peer 

reviewer that it could be assumed that 

sheep living in ranges with higher 

temperatures would have a greater need 

for water. However, we are not aware of 

an analysis comparing the Peninsular 

Ranges to the Little Harquahalas studied 

17298 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

by Krausman et al. (1985, p. 26). 

Regarding the peer reviewer’s comment 

regarding Bleich et al. (1997), we 

reevaluated the available literature on 

the importance of water to lactating 

ewes. As a result, we revised the 

discussion of water in the ‘‘Primary 

Constituent Elements (PCEs)’’ section of 

this final rule. 

Comment 24: One peer reviewer 

stated the proposed rule lists sites for 

breeding and space for mating as key 

habitat elements, but the peer reviewer 

believes there is no evidence to suggest 

that lack of breeding is a limiting factor 

for these sheep. The peer reviewer also 

believes there is no evidence that 

breeding takes place in any habitat other 

than where normal activities occur 

during the months in which breeding 

and mating take place. 

Our Response: We acknowledge the 

peer reviewer’s concerns regarding 

Peninsular bighorn sheep breeding 

habitat. We did not suggest in the 

proposed rule that lack of breeding is a 

limiting factor for Peninsular bighorn 

sheep or that breeding occurs 

exclusively in a specific type of habitat. 

Rather, our intention was to highlight 

the importance of maintaining space for 

individual and population growth and 

normal behavior, which includes 

breeding. 

Comment 25: One peer reviewer 

believes the document could be 

strengthened by using primary literature 

(versus grey literature) and citing 

original sources. 

Our Response: Consistent with 

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

shall use the best scientific data 

available when making critical habitat 

determinations. Data reviewed by the 

Secretary may include, but are not 

limited to, scientific or commercial 

publications, administrative reports, 

maps or other graphic materials, 

information received from experts on 

the subject, and comments from 

interested parties. Designation of critical 

habitat for Peninsular bighorn sheep 

includes a compilation of data from 

peer-reviewed, published literature; 

unpublished or non-peer reviewed 

survey and research reports; and 

opinions of biologists knowledgeable 

about Peninsular bighorn sheep and 

their habitat. We use primary literature 

whenever possible, although in some 

cases grey literature provides timely and 

detailed information that may otherwise 

not be available. Therefore, in this final 

revised critical habitat designation we 

have used the best scientific information 

available at this time, including updated 

information provided by peer reviewers 

and commenters, which is incorporated 

into this rule where appropriate. 

Comment 26: One peer reviewer 

believes the distribution of critical 

habitat could be more exact (and 

defensible) based on locations of sheep. 

The peer reviewer further stated that the 

Service should consider documented 

sheep locations approximately 500– 

1,000 m (1,640–3,280 ft) in any 

direction as the boundary of critical 

habitat, because the peer reviewer 

believes this would be defensible given 

the accuracy of the radio and GPS collar 

generated locations. Finally, the peer 

reviewer suggested other defensible 

options for a more exact critical habitat 

delineation, including the use of 

minimum convex polygons or 95 

percent adaptive kernel techniques (and 

the connectivity between them). 

Our Response: Consistent with 50 

CFR 424.12(b), when considering the 

designation of critical habitat, the 

Secretary shall focus on the principal 

biological or physical constituent 

elements within the defined area that 

are essential to the conservation of a 

given species and that may require 

special management considerations or 

protection. Additionally, as per section 

3(5)(A)(ii) of the Act, critical habitat also 

includes specific areas outside the 

geographical area occupied by the 

species at the time it is listed if such 

areas are essential for the conservation 

of the species. While delineating critical 

habitat, we not only considered 

Peninsular bighorn sheep locations, but 

also a combination of habitat features. 

We believe that drawing circles around 

occurrence points as the commenter has 

suggested (by delineating the critical 

habitat boundary as 500–1,000 m 

(1,640–3,280 ft) in any direction of a 

sheep location) would not accurately 

reflect essential habitat for this DPS 

because collared sheep represent a 

subset of the total number of sheep in 

the Peninsular Ranges. Additionally, 

there are a disproportionate number of 

collared animals in the northern extent 

of the DPS’s range compared to the 

southern extent of its range. Therefore, 

we believe basing critical habitat only 

on occurrence data would lead to an 

underrepresentation of the habitat 

essential to the whole population. 

Both the minimum convex polygons 

or 95 percent adaptive kernel 

techniques could be valid options for 

determining a species’ habitat or home 

range; however, we believe our criteria 

used to identify critical habitat gives a 

more precise delineation of essential 

habitat based on occurrence data and 

the physical or biological features 

essential to the conservation of 

Peninsular bighorn sheep (see ‘‘Criteria 

Used To Identify Critical Habitat’’). We 

did consider the use of other techniques 

to delineate critical habitat, including 

minimum convex polygons or 95 

percent adaptive kernel techniques such 

as the peer reviewer suggested. 

However, those techniques can yield 

broad and irregularly shaped polygons 

of habitat inclusive of expanses of areas 

that lack occurrence data. 

We delineated critical habitat 

boundaries as described in the ‘‘Criteria 

Used To Identify Critical Habitat’’ 

section of this final rule. Please see this 

section for a detailed discussion of the 

delineation process used for this rule. 

Comment 27: One peer reviewer 

stated it was not clear in the proposed 

rule how the distribution of bighorn 

sheep and occupied areas were 

determined. The peer reviewer believes 

the ‘‘Methods’’ section does not define 

occupied habitat. The peer reviewer 

believes that if sheep are regularly using 

an area, it is important for the Service 

to define occupied habitat. However, if 

sheep have not used an area in more 

than 5 to 10 years and there is no 

suitable habitat adjacent to that area, the 

peer reviewer believes it would be 

difficult to defend this area as critical. 

The peer reviewer suggested an in-depth 

cumulative effects examination to 

address this issue. 

Our Response: We agree with the peer 

reviewer that areas of regular, repeated 

sheep use are important to this DPS; 

however, we disagree with the peer 

reviewer’s assertion that areas not used 

by sheep in more than 5 to 10 years will 

be difficult to defend as critical habitat. 

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

critical habitat as the geographical area 

occupied by the species, at the time it 

is listed in accordance with the 

provisions of section 4 of the Act, on 

which are found those physical or 

biological features (a) essential to the 

conservation of the species and (b) 

which may require special management 

considerations or protection. As a 

revision to our criteria announced in the 

NOA (73 FR 50498, August 26, 2008), 

we included areas with occupancy data 

indicating they are currently occupied 

or areas with occupancy data indicating 

they were occupied at some point 

between 2008 (present time) and 1988 

(i.e., the time of listing (1998) less 10 

years, which is the average lifespan of 

Peninsular bighorn sheep). 

Use of a data set that considers a 

larger time-span of occurrence data 

accounts for the large fluctuations in 

Peninsular bighorn sheep population 

levels over the last two decades. 

Because the average lifespan of sheep is 

approximately 10 years (Botta 2008a, p. 

1), areas occupied 10 years prior to 

listing should be considered occupied at 

listing. Therefore, we appropriately 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17299 

included areas supporting the essential 

physical and biological features that 

may require special management 

considerations or protection that are 

within areas occupied at the time of 

listing. We did not include areas that 

were unsuitable or otherwise did not 

support physical and biological features 

essential to the conservation of the 

species. Please see our response to 

Comment 8 and ‘‘Criteria Used To 

Identify Critical Habitat’’ section of this 

rule for additional discussion on 

occupancy and methodology used to 

develop critical habitat. 

With regard to the assertions about a 

cumulative effects analysis, the peer 

reviewer may be confusing a cumulative 

effects analysis under section 7 of the 

Act or NEPA with the process for 

designating critical habitat. A 

‘‘cumulative effects’’ analysis is not 

required under section 4 of the Act. 

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

consider the economic, national 

security, and other relevant impacts of 

designating critical habitat. 

Comment 28: One peer reviewer 

believes that bighorn sheep habitat 

along the border could be altered by 

illegal immigrants and the Border Patrol 

(or other agents that pursue illegal 

immigrants). The peer reviewer also 

believes that future economic growth 

could further infringe on the bighorn 

sheep’s habitat in the southern part of 

its range as it has in the northern part 

of its range. The peer reviewer believes 

that these issues should be addressed in 

a cumulative effects analysis. 

Our Response: When delineating 

critical habitat for Peninsular bighorn 

sheep, we used the best available 

scientific information to determine 

those areas that meet the definition of 

critical habitat. We do not have any data 

indicating that activities associated with 

the Border Patrol activities or illegal 

immigration threaten Peninsular 

bighorn sheep habitat along the border, 

nor did the peer reviewer supply data to 

support this assumption. The DEA 

analyzed projected economic growth 

and associated economic impacts, and 

the majority of projected growth is 

expected to occur in the northern part 

of the range. We recognize the potential 

threat of development in the ‘‘Special 

Management Considerations or 

Protection’’ section of this final rule. 

Again, the peer reviewer may be 

confusing a cumulative effects analysis 

under section 7 of the Act or NEPA with 

the process for designating critical 

habitat. 

Comment 29: One peer reviewer did 

not agree with our discussion of the 

potential negative effects of roads to 

Peninsular bighorn sheep as stated in 

the 2007 proposed rule. The peer 

reviewer believes that the citation of 

Epps et al. (2005, p. 1035) in the 

proposed rule is inappropriate to this 

DPS because that study was concerned 

with the effects of major fenced 

highways, and the roads in question in 

the Peninsular Ranges are smaller twolane roads that Peninsular bighorn 

sheep cross regularly. 

Our Response: In light of the above 

comment, we revised our discussion of 

the effects of roads on Peninsular 

bighorn sheep and revised our citation 

of Epps et al. (2005). Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this final rule. 

Comment 30: One peer reviewer 

believes that the discussion in the 2007 

proposed rule of behavioral interactions 

between humans and bighorn sheep is 

not objective and lacks a real analysis of 

the problem as its basis. The peer 

reviewer believes that an analysis is 

required regarding our statement that 

‘‘disturbance could modify the sheep’s 

behavior or cause bighorn sheep to flee 

an area.’’ The peer reviewer believes 

this statement falsely implies that such 

an incident is detrimental to the 

conservation of this animal. 

Additionally, the peer reviewer 

suggested we provide an alternative 

statement indicating that bighorn sheep 

in the Peninsular Ranges are a good 

example of a DPS that can readily 

habituate to human activities that are 

non-threatening and geographically 

predictable. 

Our Response: The opening 

paragraphs of our proposed revised 

critical habitat designation clearly state 

that the rule is not intended to serve as 

a comprehensive review of desert 

bighorn sheep ecology and 

conservation, and such reviews can be 

found elsewhere. The proposed rule 

briefly discusses the natural history and 

management of bighorn sheep, and then 

concentrates upon the methodology 

used to designate critical habitat. The 

effects of human activities on bighorn 

sheep have been discussed and debated 

by many biologists and managers for 

decades; thus, we included a brief 

synopsis of the topic. We recognized 

there were differences of opinion, and 

thus we were careful to include words 

such as ‘‘potential.’’ It should be noted 

that we were discussing human activity 

in a general sense, and we listed a 

variety of activities as examples. 

A careful review of the literature 

reveals that bighorn sheep group or 

individual responses to human activity 

are highly variable and influenced by 

local factors and local history. 

Therefore, generalized statements 

extending to all bighorn sheep are 

inappropriate. An overwhelming 

majority of biologists have expressed 

concern and have recommended 

limiting or managing human activities 

in bighorn sheep habitat. The peer 

reviewer is correct in asserting that 

much of the literature consists of 

opinions and that there is a need for 

additional well-designed studies that 

provide stronger inferences. However, 

considering the volume of opinions on 

the potential impacts that human 

activities may have on bighorn sheep, it 

was appropriate to include discussion of 

these potential impacts when 

considering if the physical or biological 

features essential to the conservation of 

the Peninsular bighorn sheep may 

require special management 

considerations or protection. 

Comment 31: One peer reviewer made 

the following statement: ‘‘Conspicuous 

by its absence in this proposal is any 

reference to the recent Turner et al. 

[2004] published habitat analysis of 

bighorn sheep in the northern 

Peninsular Ranges, the Ostermann et al. 

[2005] rebuttal to that, and the response 

by Turner et al. [2005].’’ The peer 

reviewer further stated that a 

subsequent unpublished preliminary 

habitat analysis by Rubin et al. was 

referenced in the proposed rule instead, 

with a statement that it was not adopted 

because of its preliminary nature; yet it 

was used as validation of the critical 

habitat boundaries, which effectively is 

stating that it was adopted. The peer 

reviewer pointed out that in discussing 

why the new proposal includes much 

less habitat, the Service stated that 

many areas in the original critical 

habitat did not support features 

essential for the conservation of the 

Peninsular bighorn sheep or otherwise 

contain suitable habitat for the DPS. The 

peer reviewer stated this is the same 

point made by Turner et al. (2004), and 

regardless of whether the Service 

accepts the details of their habitat 

modeling, the peer reviewer believes it 

would be appropriate to cite them as 

having arrived at the same conclusion. 

Finally, the peer reviewer stated that, 

without advocating one study over the 

other, this is not objective, and there 

should be a discussion addressing why 

the Turner et al. analysis was not used, 

while an unpublished preliminary 

analysis was used. 

Our Response: We considered the 

papers cited above (Turner et al. 2004; 

2005; and Ostermann et al. 2005), but 

they did not play a role in the 

development of the critical habitat 

designation. Therefore, they were not 

cited and discussed in the proposed 

rule. Turner et al. (2004) based their 

model primarily upon data collected 

17300 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

from a subpopulation that exhibited 

atypical habitat selection patterns. 

Approximately 90 percent of the data 

points utilized were collected from a 

group of bighorn sheep that frequented 

urban areas in the vicinity of Rancho 

Mirage. Furthermore, 79 percent of the 

data points utilized were collected over 

only a seven-year period when bighorn 

sheep use of urban areas was most 

pronounced. This fact also biased the 

data from a spatial standpoint because 

point locations were much easier to 

collect in urban settings. Approximately 

80 percent of the point locations 

utilized were obtained within 1.9 mi (3 

km) of an artificial water source, which 

was located next to a residential 

community. Additionally, Turner et al. 

(2004) assumed that the density of 

bighorn sheep point locations in a given 

area accurately reflected habitat quality, 

and they did not account for variations 

in sampling effort and detection. 

Finally, the Turner et al. (2004) model 

utilized a subset of the available data. 

Only a small amount of the data utilized 

was collected from other bighorn sheep 

groups that exhibited behavior and 

habitat use patterns typical of bighorn 

sheep inhabiting the remainder of the 

Peninsular Ranges. 

For the reasons stated above, the 

Turner et al. (2004) model should not be 

considered a general model for 

identifying or ranking bighorn sheep 

habitat in the Peninsular Ranges. Its 

validity is specific to the small group of 

sheep that frequented urban areas in 

Rancho Mirage from 1994–2000. The 

Turner et al. (2005) rebuttal to 

Ostermann et al. (2005) did not fully 

address the above issues, but instead 

aired past grievances with the Service 

and addressed aspects of Peninsular 

bighorn sheep recovery that were not 

specific to their model or Ostermann et 

al. (2005). 

The preliminary habitat analysis 

conducted by Rubin et al. (2007) 

utilized point locations collected from 

bighorn sheep not closely associated 

with urban areas, and their efforts 

utilized different and recently 

developed methodology. The 

preliminary results were presented by 

Rubin et al. to our office and examined. 

However, the Rubin et al. (2007) 

preliminary results were not used to 

adjust the boundaries of the proposed 

critical habitat designation (see our 

response to Comment 20 above). The 

peer reviewer is justified in asserting 

that if the preliminary results of Rubin 

et al. (2007) were mentioned in the 

proposed rule, then the Turner et al. 

(2004) model, plus rebuttals, also 

should have been discussed. However; 

since neither model was used to 

designate the proposed critical habitat, 

we removed further discussion of the 

models (e.g., Rubin et al. 2007; Turner 

et al. 2004) from this final rule. 

Public Comments 

Comments Related to Criteria Used To 

Identify Critical Habitat 

Comment 32: Two commenters stated 

that upon examination of occurrence 

data and the original critical habitat 

(2001), they believe that the original 

critical habitat was overdrawn. The 

commenters further believe that the 

original critical habitat contains large 

areas of land that have no evidence of 

current or historic bighorn sheep 

activity or that have had only a handful 

of observations over the past 30 years. 

The commenters noted that the 

Service’s attempt to base the proposed 

critical habitat on more technical, stateof-the-art distributional information 

appears to be a step toward resolving 

some of these issues. The commenters 

believe the methodology used in the 

proposed rule is vague, and the sources 

of information do not appear to be 

publicly available. For example, one 

commenter questioned how the ewe 

group delineation from Rubin et al. 

(1998) was compared to all occupancy 

data collected since the time of listing 

on GIS imagery maps. Both commenters 

also questioned how ewe group 

delineation was expanded to include 

areas where occupancy data points 

indicate repeated Peninsular bighorn 

sheep use and recent sheep movements. 

Our Response: We acknowledge that 

the 2001 critical habitat designation 

contains large areas of land that have no 

evidence of current or historic bighorn 

sheep activity or have had only a 

handful of observations over the past 30 

years. A complete discussion of how 

information and data collected since the 

2001 designation was utilized to refine 

the proposed designation and the steps 

used in the delineation process (i.e., 

methodology) can be found in the 

‘‘Criteria Used To Identify Critical 

Habitat,’’ ‘‘Summary of Changes From 

the 2001 Critical Habitat Designation To 

the 2007 Proposed Rule To Revise 

Critical Habitat,’’ and ‘‘Summary of 

Changes From the 2007 Proposed Rule 

To Revise Critical Habitat To This Final 

Rule To Revise Critical Habitat’’ 

sections of this final rule. 

Comment 33: Two commenters 

believe it is disconcerting that the 

proposed rule expands areas of 

occupancy (from E. Rubin’s ewe group 

determination) to include areas where 

there are only a handful of sightings, 

where sighting data are unverifiable, 

and where bighorn sheep have been 

recently released. The commenters 

believe this suggests that critical habitat 

can be ‘‘created’’ by releasing bighorn 

sheep into previously unoccupied areas. 

The commenters further stated that the 

expansion of the northernmost ewe 

group delineation in the San Jacinto 

Mountains could be justifiable; 

however, they believe there is no way to 

objectively evaluate the information 

used in support of this expansion. The 

commenters provided the example that 

several bighorn sheep sightings in Chino 

Canyon were the result of helicopter 

pursuits driving animals onto the valley 

floor. The commenters questioned if 

these coerced observations were 

included in the database. Additionally, 

the commenters believe the proposed 

rule expanded the southernmost ewe 

group delineation near Interstate 8 

based on consistent, recent sightings of 

uncollared Peninsular bighorn sheep 

and asked the Service if this includes 

ewes, lambs, and rams. The commenters 

stated that their understanding was that 

California Department of Fish and Game 

(CDFG) personnel suggest these are 

occasional sightings of rams. The 

commenters believe that since these are 

uncollared animals, it is unknown if 

these ‘‘consistent sightings’’ are of one 

or a few individuals being repeatedly 

seen or from multiple groups colonizing 

the area and further indicated that 

subjective statements such as this by the 

Service are unacceptable in a final rule. 

Our Response: We believe it was 

necessary and justifiable to explore and 

consider additional available scientific 

information because the ewe group 

delineations from Rubin et al. (1998) 

were intended to document the 

approximate known distribution of ewe 

groups at that time and were based on 

only a few years of data. Using the ewe 

group delineations as a starting point, 

we expanded our proposed critical 

habitat boundary from the ewe group 

delineations using a much larger set of 

occurrence data from 1988 to 2008 and 

information on essential habitat 

features. See our response to Comment 

20 and the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this final 

rule for more discussion on the 

methodology and expanded critical 

habitat boundary. 

In response to the commenters’ 

assertion that we included areas where 

there are only a handful of sightings, 

where sighting data are unverifiable, 

and where bighorn sheep have been 

recently released, we used the best 

available scientific data in determining 

whether the areas in question meet the 

definition of critical habitat. A captive 

breeding program has been maintained 

by the Bighorn Institute since 1984 in 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17301 

cooperation with CDFG and the Bureau 

of Land Management (BLM). Captivebred Peninsular bighorn sheep have 

been released in the northern Santa 

Rosa Mountains and the San Jacinto 

Mountains (Ostermann et al. 2001, p. 

751) solely into areas currently and 

historically occupied by the DPS. We 

recognize that a small percentage of data 

points considered may be those of 

released sheep from the captive 

breeding program; however, we do not 

suggest that critical habitat can be 

created by releasing sheep into 

previously unoccupied areas, as the 

commenters have asserted. Furthermore, 

all areas included in the designation 

contain data points from non-captivebred sheep. In regard to the 

commenters’ concerns and assertions 

about the data considered, we are not 

aware of any ‘‘coerced’’ observations in 

our database. Finally, the recent bighorn 

sheep sightings near Interstate 8 include 

multiple ewes and lambs in groups of 

varying sizes. 

Comment 34: Several commenters 

expressed concern about the draft 

habitat model mentioned in the 

proposed rule. 

Our Response: We did not use the 

draft habitat model in our critical 

habitat delineation for the proposed rule 

or this final rule. See our response to 

Comment 19 above. 

Comment 35: Two commenters 

questioned why the Service does not 

mention in the proposed rule the three 

current peer reviewed papers on 

bighorn sheep critical habitat in the 

northern Peninsular Ranges (i.e., Turner 

et al. 2004; 2005; Ostermann et al. 

2005). The commenters believe this is 

incongruous, as the critical habitat 

delineated in the proposed rule most 

closely approximates the conclusions of 

Turner et al. (2004). 

Our Response: Please see our 

response to Comment 31 for a 

discussion of these papers. 

Comment 36: Several commenters 

believe that the proposed revised 

critical habitat is flawed because it fails 

to consider historic and recent known 

Peninsular bighorn sheep locations. One 

commenter believes the current 

proposal fails to include and adequately 

consider the vast majority of known 

Peninsular bighorn sheep locations 

prior to the listing of the DPS as 

endangered in 1998, when the 

Peninsular bighorn sheep population 

was at a historic low point and their 

range was severely constricted. The 

commenter also believes that omitting 

historic locations of Peninsular bighorn 

sheep from critical habitat designation 

ensures that the distribution of the DPS 

will remain severely limited in relation 

to its historic distribution and is 

contrary to the Act. The commenter 

suggested that to promote recovery of 

the DPS, it is essential that Peninsular 

bighorn sheep be able to re-inhabit their 

historic range which, given the rapid 

expansion of human development in the 

area, will be impossible if sufficient 

historic habitat is not protected as 

critical habitat. 

Additionally, one commenter believes 

the critical habitat designation in the 

proposed rule does not accurately take 

into account multiple sheep locations 

recorded since Peninsular bighorn 

sheep were listed in 1998. The 

commenter noted that conservation 

groups have been informed by the 

Peninsular bighorn sheep recovery team 

members that the proposed revised 

critical habitat fails to consider known 

sheep locations that were made 

available to the Service by members of 

the Peninsular bighorn sheep recovery 

team. The commenter noted their belief 

that the consequence of this omission 

(whether purposeful or inadvertent) is 

that significant areas of currently 

occupied habitat essential to the DPS 

are omitted from the proposed rule. 

Our Response: Regarding the 

commenters’ concern about a flawed 

proposal and assertions about historic 

and known sheep locations not 

considered in the proposed revised 

critical habitat designation, we revised 

our criteria in light of these concerns 

and similar comments from peer 

reviewers about the limited dataset used 

in the proposed rule. The revisions were 

announced in the NOA published in the 

Federal Register on August 26, 2008 (73 

FR 50498). We revised our criteria to 

consider occurrence data between 2008 

(present time) and 1988 (i.e., the time of 

listing (1998) less 10 years, which is the 

average lifespan of Peninsular bighorn 

sheep). Use of a data set that considers 

a larger time-span of occurrence data 

accounts for the large fluctuations in 

Peninsular bighorn sheep population 

levels over the last two decades. See our 

response to Comment 8 above. 

Regarding the concerns that critical 

habitat should include the historical 

range of the DPS, the Service may 

designate as critical habitat areas 

outside of the geographical area 

occupied by a species at the time it was 

listed (i.e., historical habitat) only when 

we can demonstrate that those areas are 

essential for the conservation of the 

species (section 3(5)(A)(ii) of the Act). 

Likewise, we can designate as critical 

habitat areas outside the geographical 

area presently occupied by a species 

only when a designation limited to the 

species’ present range would be 

inadequate to ensure the conservation of 

the species (50 CFR 424.12(e)). Refer to 

our response to Comment 7 for further 

discussion. 

We believe that we considered a 

scope of occurrence data that is 

reflective of the large population 

fluctuations of Peninsular bighorn sheep 

over the past two decades, not just 

occurrence data from a ‘‘historic low 

point’’ when the range of this DPS was 

‘‘severely constricted,’’ as the 

commenter suggests. See our response 

to Comment 8 above for a detailed 

discussion. 

With regard to the commenter’s 

concerns of the omission of occurrence 

data previously provided to the Service, 

we examined the occurrence data 

considered in the delineation of the 

proposed revised critical habitat and 

found that a set of data was missing 

from our GIS database. Subsequently, 

we included that occurrence data into 

our GIS database and double-checked to 

ensure that all occurrence records 

submitted to the Service were included 

for our analyses. Please see our response 

to Comment 10 above. 

Comment 37: One commenter 

asserted that instead of including the 

full catalogue of known locations, the 

Service’s proposed revised critical 

habitat gives greater weight to 

occurrence data acquired remotely 

through radio telemetry and GPS. The 

commenter believes that this 

nonrandom sampling inevitably biases 

the assessment of habitat selection by 

Peninsular bighorn sheep towards more 

intensively studied groups and that it 

cannot be construed as representative of 

habitat use throughout the range. 

Our Response: We realize that much 

of the occurrence data for this DPS is 

based on data acquired remotely 

through radio telemetry and GPS. 

Additionally, we are aware that not all 

areas within the range of the DPS have 

been surveyed or studied equally (see 

our response to Comment 8). For 

example, the extreme southern portion 

of the Peninsular Ranges has not been 

studied as heavily with radio telemetry 

and GPS collar technology as in the 

north. Therefore, we use a variety of 

occurrence data such as photographic 

evidence, scat data, and field notes 

collected from Service biologists and 

other species experts to determine 

occupied habitat. The designation of 

critical habitat for Peninsular bighorn 

sheep is based on the best scientific data 

available regarding the DPS, including a 

compilation of data from peer-reviewed, 

published literature; unpublished or 

non-peer-reviewed survey and research 

reports; and opinions of biologists 

knowledgeable about Peninsular 

bighorn sheep and their habitat. 

17302 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

Comment 38: One commenter 

believes the proposed rule is flawed 

because it uses uncertain and unclear 

methodology, and another commenter 

believes the Service failed to consider 

the best scientific and commercial data 

available. Additionally, one commenter 

believes that the failure to provide a 

clear and transparent methodology 

prevents independent validation of the 

proposed changes insofar as scientists 

and other members of the public are 

unable to conduct a comprehensive 

appraisal of the methods and 

determinations. 

Several commenters stated that it is 

unclear how the Service utilized the 

PCEs identified in the proposed rule to 

ascertain whether specific habitat 

should be categorized as critical. One 

commenter stated that he was unable to 

assess how the Service derived the maps 

of critical habitat, as they contain 

features not consistent with known 

topography or known bighorn sheep 

locations. The commenter further noted 

that the critical habitat maps in the 

proposed rule show several lengthy and 

inexplicable straight line edges of 

habitat, notably adjacent to Borrego 

Springs and south of Route 78, which 

do not conform to the terrain and for 

which no biological explanation or 

justification is provided in the proposed 

rule; they added that bighorn sheep 

habitat does not naturally occur in such 

a linear fashion. The commenter had 

concerns that these boundaries may 

have been based on political and 

economic reasoning rather than sound 

science. 

Our Response: As discussed in our 

responses to Comments 5 and 12 above 

and the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this final 

rule, we delineated critical habitat for 

the Peninsular bighorn sheep using the 

following criteria: (1) Areas that contain 

the PCEs required by the DPS as 

determined from aerial imagery and GIS 

data on vegetation, elevation, and slope; 

(2) areas within the ewe group 

distribution (i.e., subpopulations) 

boundaries identified by Rubin et al. 

(1998); (3) areas occupied by the DPS 

between 2008 (present time) and 1988; 

and (4) areas where occupancy data 

points indicate repeated Peninsular 

bighorn sheep use, but which were not 

captured within the ewe group 

distribution boundaries identified by 

Rubin et al. (1998). Application of these 

criteria results in the determination of 

the physical and biological features that 

are essential to the conservation of this 

DPS, identified as the DPS’s PCEs laid 

out in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the DPS. Since the 2007 

proposed rule, we revised the ‘‘Criteria 

Used To Identify Critical Habitat’’ 

section of this rule to provide more 

detail and a description of the stepwise 

process used, data considered, habitat 

features mapped, and method used to 

delineate critical habitat boundaries. 

Any boundaries of the proposed critical 

habitat designation that seem straight in 

appearance are the result of our criteria 

used to identify critical habitat and are 

not the result of political or economic 

reasoning. 

Comment 39: Many commenters 

stated that the methods were not 

designed by or made in consultation 

with members of the Peninsular bighorn 

sheep recovery team who are most 

familiar with Peninsular bighorn sheep 

ecology and habitat and that they 

diverge significantly from those 

methods previously used in the 

Recovery Plan to determine critical 

habitat for the DPS. 

Our Response: In accordance with our 

policy on peer review published on July 

1, 1994 (59 FR 34270), we solicited 

expert opinions from five 

knowledgeable individuals (some of 

which were on the recovery team) with 

scientific expertise that included 

familiarity with the DPS, the geographic 

region in which it occurs, and 

conservation biology principles. We 

reviewed all comments received from 

the peer reviewers and the public for 

substantive issues and new information 

regarding the designation of critical 

habitat for Peninsular bighorn sheep. 

Furthermore, on May 14, 2007, 

representatives from the Carlsbad Fish 

and Wildlife Office and the Regional 

Office, including the Regional Director, 

met with recovery team members in part 

to inform members that we were 

initiating work to propose revisions to 

designated critical habitat for the 

Peninsular bighorn sheep. At that 

meeting, we requested that recovery 

team members submit any data they 

wanted us to consider in our proposed 

revision. Therefore, we believe that we 

followed the appropriate guidance and 

regulations regarding inclusion of expert 

biologists and others during 

development of this critical habitat 

designation. See our response to 

Comment 11 above. 

Comment 40: One commenter 

believes that the 0.5-mi (0.8-km) buffer 

zone around slopes equal or greater than 

20 percent as described in the Recovery 

Plan is not necessary, and they 

expressed support for the Service not to 

include this buffer in the final critical 

habitat designation. 

Our Response: The areas of the 0.5-mi 

(0.8-km) zone around 20 percent slopes 

were included in the Recovery Plan and 

2001 final critical habitat designation 

because they may contain resources for 

the DPS, and bighorn sheep have on 

occasion been observed to wander great 

distances from areas of 20 percent slope. 

The inclusion of these areas resulted in 

the addition of large expanses of land to 

the Recovery Plan area and the 2001 

critical habitat designation. However, 

based on the best scientific information 

currently available and our criteria used 

to identify critical habitat, those areas 

do not meet the definition of critical 

habitat. As a result, we are not including 

some areas that were previously 

designated as critical habitat that are 

within this 0.5-mi (0.8-km) zone around 

20 percent slopes. See our response to 

Comment 4 above, and the ‘‘Criteria 

Used To Identify Critical Habitat’’ and 

‘‘Summary of Changes From the 2001 

Critical Habitat Designation To the 2007 

Proposed Rule To Revise Critical 

Habitat’’ sections of this final rule for 

further discussion. 

Comment 41: One commenter had 

concerns about the occurrence data 

considered in our criteria used to 

identify critical habitat. The commenter 

stated that no scientifically based reason 

is identified for why occurrence data 

from 1988 to present is used. The 

commenter followed that Peninsular 

bighorn sheep occurred in the area for 

millennia prior to 1988 and were in 

decline by the 1970’s. The commenter 

was also concerned that our use of 

occupancy data points was restricted to 

those indicating repeated Peninsular 

bighorn sheep use. The commenter 

stated that given the incomplete records 

for the location of all bighorn sheep at 

all times, especially in the southern part 

of the range, they believe it is 

unreasonable that only the repeated 

occupancy data points were used for the 

designation. 

Our Response: As stated in our 

response to Comment 27 above, we 

considered areas with occupancy data 

indicating that they are currently 

occupied or areas with occupancy data 

indicating they were occupied at some 

point between 2008 and 1988 (i.e., the 

time of listing (1998) less 10 years, 

which is the average lifespan of 

Peninsular bighorn sheep). Use of a data 

set that considers this time span of 

occurrence data accounts for the large 

fluctuations in Peninsular bighorn 

sheep population levels over the last 

two decades. Because the average 

lifespan of sheep is approximately 10 

years (Botta 2008a, p. 1), areas occupied 

10 years prior to listing should be 

considered occupied at listing. 

Regarding the concerns over using 

repeated occupancy data given the 

incomplete records in the southern part 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17303 

of the range, we are aware that not all 

areas within the range of the DPS have 

been surveyed or studied equally (see 

our response to Comment 8 above). 

Regardless, we used the best available 

scientific information and occurrence 

data in determining areas occupied by 

Peninsular bighorn sheep. Please see the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this rule for more 

information. 

Comment 42: In response to our 

August 26, 2008, NOA announcing 

changes to the proposed rule, one 

commenter wrote; ‘‘The proposed 

expansion of critical habitat beyond the 

boundaries, beyond those in the October 

2007 critical habitat proposed rule, 

relies on essentially the same 

qualitative, opinion-based approach that 

led to the remand of critical habitat for 

new rulemaking by the Court (Agua 

Caliente v. Scarlett).’’ 

Our Response: The commenter 

implies that the consent decree and 

associated remand of critical habitat 

reflect a court judgment supporting their 

opinion that the methodology used in 

delineating critical habitat is 

inappropriate. However, the court order 

upholding the approval of the consent 

decree states, ‘‘It is also well established 

that in approving a consent decree, the 

Court does not delve into the merits of 

the case, but rather limits its review to 

determine if the settlement is fair, 

reasonable, and equitable.’’ There was 

no court ‘‘ruling’’ that the methodology 

used to designate the critical habitat 

boundary was inappropriate. The 

parties agreed to a settlement to avoid 

the mutual risks and expenses of 

protracted litigation. Additionally, 

issues other than the methodology for 

delineating critical habitat, such as the 

economic analysis and tribal 

sovereignty, played important roles in 

the case. 

Comments Related to the Primary 

Constituent Elements 

Comment 43: One commenter 

believes that information about how 

PCEs are quantified, the models used for 

their application, and the methods 

applied to point-by-point determination 

of exclusion from critical habitat are not 

described in the proposed rule and are 

arbitrary. The commenter noted that 

some critical habitat was added in 

comparison to the critical habitat 

identified based on essential habitat 

designation in the Recovery Plan, and 

much habitat was deleted. The 

commenter inquired if there is a 

difference in the PCEs of these two 

groups (i.e., areas added and areas 

deleted). 

Our Response: In our responses to 

Comments 5, 12, and 38 and in the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final revised 

rule, we explain how we delineated 

critical habitat for the Peninsular 

bighorn sheep. In response to the 

commenter’s inquiry if PCEs were 

different for areas added than for those 

deleted from critical habitat, the same 

set of PCEs for Peninsular bighorn sheep 

were used in the process of determining 

areas to include and not include as 

critical habitat in this designation. 

Comment 44: One commenter 

believes the PCEs set forth an almost 

unlimited area, confined only by certain 

upper-level altitudes. 

Our Response: Some PCEs may 

extend beyond the boundary of critical 

habitat; however, we used ewe group 

delineations, occurrence data, and 

habitat features, in addition to the PCEs, 

to delineate the boundary of critical 

habitat. We believe that this process has 

resulted in critical habitat units that 

contain the PCEs laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS. See the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final rule for 

further discussion of the use of PCEs to 

delineate critical habitat. 

Comments Related to DPS Biological 

Information 

Comment 45: Two commenters 

believe the proposed rule gives a false 

impression that this population is a 

unique species or subspecies through 

weak use of nomenclature and 

erroneous information. The commenters 

also stated that in numerous places, the 

proposed rule refers to this DPS as if it 

were a subspecies or species. The 

commenters believe that the proposed 

rule incorrectly refers to this DPS as 

‘‘Peninsular bighorn sheep (Ovis 

canadensis nelsoni)’’ in the title and 

body of the text; however, Ovis 

canadensis nelsoni is the Latin 

trinomial for ‘‘desert bighorn sheep’’ 

and the term ‘‘Peninsular bighorn 

sheep’’ was the common name for the 

now synonymized subspecies; Ovis 

canadensis cremnobates. The 

commenters believe this is a matter of 

peer-reviewed scientific literature and 

the proposed rule should use correct 

terminology and refer to this DPS as 

desert bighorn sheep (Ovis canadensis 

nelsoni) in the Peninsular Ranges of 

California (Wehausen and Ramey 1993; 

Ramey 1995). 

Our Response: See our response to 

Comment 22 above. We are updating the 

listed entity to a DPS of desert bighorn 

sheep (Ovis canadensis nelsoni). 

However, we believe it is appropriate to 

continue to refer to these sheep with the 

common name Peninsular bighorn 

sheep within this rule. Additionally, we 

revised our discussion of the taxonomy 

of the listed entity in the ‘‘Background’’ 

section of this final rule. 

Comment 46: Two commenters 

believe the proposed critical habitat rule 

includes overstatements that have little 

or no basis in fact about the negative 

impacts of human disturbance on 

bighorn sheep. 

Our Response: Please see our 

response to Comment 30 above. We do 

not believe that the discussion in the 

proposed rule overstates impacts, and 

we based our discussion on a variety of 

widely discussed and debated impacts. 

Comment 47: Two commenters stated 

that while it is important to minimize 

the effects or impacts of any 

construction project on bighorn sheep 

habitat, they believe the assertions in 

the proposed rule about power lines 

degrading and fragmenting habitat are 

without factual substantiation. The 

commenters also stated that once 

constructed, power lines and support 

structures are inanimate objects in the 

environment, and they believe there is 

no empirical evidence that power lines 

fragment bighorn sheep habitat or 

preclude movements under the power 

line. 

Our Response: We agree with the 

commenters that it is important to 

minimize the effects or impacts of any 

construction project on bighorn sheep 

habitat. Our discussion of power lines 

in the proposed rule in relation to the 

threat of disturbance to Peninsular 

bighorn sheep and their habitat was 

limited to disturbance that would occur 

during power line construction. Once 

constructed, power lines become part of 

the inanimate landscape and may not 

impede sheep movement. Contrary to 

the commenters’ assertions, we did not 

suggest or state in the proposed rule that 

sheep movement is precluded by power 

lines once constructed. 

Comment 48: Two commenters noted 

the discussion in the proposed rule of 

roads fragmenting bighorn sheep habitat 

in which Epps et al. (2005) is cited as 

‘‘showing that nuclear genetic diversity 

of desert bighorn sheep populations was 

negatively correlated with the presence 

of human-made barriers (highways), 

which essentially eliminated dispersal.’’ 

The commenters believe this is 

incorrect, stating that the study found 

there was a negative effect with fenced 

highways (e.g., Interstates 10, 15, and 

40; and State Highway 62), not roads in 

general. 

Our Response: In light of the above 

comment, we revised our discussion of 

17304 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

the effects of roads on Peninsular 

bighorn sheep and revised our citation 

of Epps et al. (2005) to reflect that the 

study was of fenced highways, not roads 

in general. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this final rule. 

Comment 49: One commenter 

believes the proposed critical habitat 

designation does not take into 

consideration the effects of either 

natural or anthropogenic environmental 

variations and perturbations on the 

habitat requirements and utilization of 

Peninsular bighorn sheep, including 

changes due to development, fire and 

fire management, exotic species 

infestations, and climate change. The 

commenter asserted that the Service 

should revise and re-analyze the 

proposed critical habitat designation, 

taking into account these factors and 

ensuring that any new designation 

includes sufficient critical habitat to 

allow for Peninsular bighorn sheep 

recovery in light of the changes brought 

by climate change and other natural and 

anthropogenic alterations to sheep 

habitat across its range. 

Our Response: As discussed in the 

‘‘Special Management Considerations or 

Protection’’ section of this rule, when 

designating critical habitat, we assessed 

whether the geographical area occupied 

at the time of listing contains features 

that are essential to the conservation of 

the DPS and that may require special 

management considerations or 

protection. We considered the effects of 

anthropogenic factors (i.e., development 

and expansion of urban areas, human 

disturbance related to recreation, 

construction of roadways and power 

lines, and mineral extraction and 

mining operations) on the essential 

features in the delineation of critical 

habitat. Additionally, we discussed the 

issue of climate change in our response 

to Comment 21 above. At this time, the 

available scientific evidence regarding 

potential effects of climate change on 

Peninsular bighorn sheep habitat does 

not warrant modification of this critical 

habitat delineation. We recognize that 

the threats faced by Peninsular bighorn 

sheep (including climate change and 

anthropogenic effects) may change in 

the future; however, we base our critical 

habitat designations on the best 

scientific information available at the 

time of the designation and do not 

speculate as to what areas may be found 

essential if better information becomes 

available or what areas may become 

essential over time. 

Conservation (i.e., recovery) is 

achieved when a five-factor analysis 

performed pursuant to section 4(a)(1) of 

the Act indicates that current and future 

threats have been minimized to an 

extent that the species is no longer 

threatened with extinction in the 

foreseeable future. Recovery is a 

dynamic process requiring adaptive 

management of threats, and there are 

many paths to accomplishing recovery 

of a species. We recognize that recovery 

efforts will occur both within and 

outside the boundaries of this final 

critical habitat designation. However, 

we believe that conservation of 

Peninsular bighorn sheep would be 

achieved if threats to this DPS, as 

described in the ‘‘Special Management 

Considerations or Protection’’ section of 

this rule, were reduced or removed due 

to management and protection of those 

areas. 

Comment 50: One commenter stated 

that in recent years, climate science has 

advanced considerably, and the Service 

should take into account the current 

predictions for impacts to Peninsular 

bighorn sheep habitat based on global 

climate change, which includes 

dramatic vegetation shifts, significantly 

altered fire regimes, and effects on 

precipitation (California Climate Change 

Center 2006). The commenter believes 

that each of these climate change 

elements may adversely impact 

Peninsular bighorn sheep and its 

existing habitat. The commenter cited a 

study by Kelly and Goulden (2008) 

showing that the average elevation of 

the dominant plant species increased by 

65 meters between the surveys of 1977 

and 2006–2007 (a 30-year interval) in 

the Santa Rosa Mountains; this 

elevational shift in vegetation is 

attributable to global climate change. 

The commenter believes that this 

significant distributional movement of 

plant species in a relatively short time 

period indicates that a very dynamic 

change is occurring in Peninsular 

bighorn sheep habitat. The commenter 

also cited a study by Seeger et al. (2007) 

that concluded a broad consensus 

among climate models indicates that 

southwestern North America will 

become more arid in the 21st century 

due to global climate change. The 

commenter believes that as a result of 

these data, the Service should require 

additional areas and a robust critical 

habitat designation to provide refuge for 

Peninsular bighorn sheep during these 

changing times. 

According to the commenter, a study 

on the effects of climate change on 

desert bighorn sheep in California by 

Epps et al. (2004, p. 110) concluded that 

‘‘global warming could have serious 

consequences for desert bighorn sheep, 

particularly if coupled with decreases in 

precipitation.’’ The commenter further 

stated that the Epps et al. (2004) study 

found that an average increase of 3.6 

degrees Fahrenheit combined with a 12 

percent decrease in precipitation 

increased the likelihood of extinction in 

desert sheep from 20 percent to 30 

percent over the next 60 years. 

Therefore, the commenter believes that 

the Service should revise and re-analyze 

the proposed critical habitat 

designation, while taking into account 

these climate change factors, to ensure 

that any new designation includes 

sufficient critical habitat that provides 

for bighorn recovery. 

Our Response: We acknowledge that 

recent data indicate that plant 

distributional changes may be occurring 

in the Peninsular Ranges; however, we 

are unaware of data indicating a shift in 

the resource use and distribution of 

sheep in the Peninsular Ranges that 

would correlate with the change in 

plant distribution. By considering sheep 

occurrence data over the past 20 years, 

we are likely capturing recent shifts in 

sheep distribution that may have 

resulted from changes in plant 

distribution in the Peninsular Ranges. 

Additionally, we acknowledge that 

recent climate studies indicate that the 

Southwestern United States may 

experience decreases in precipitation 

and increases in temperature in the 

coming years. If in the future, data 

reveal that sheep are experiencing a 

shift in distribution to areas outside of 

the critical habitat designation, in 

association with changing plant 

distribution resulting from climate 

change, we may revise the critical 

habitat designation at that time, subject 

to available funding and other 

conservation priorities. 

With regard to the citation of Epps et 

al. (2004), we agree that the study 

concluded that global warming could 

have serious consequences for desert 

bighorn sheep populations. Here, we 

would like to expand on the 

commenter’s shortened description of 

Epps et al. (2004). The modeled 2.0 

degree Celsius temperature increase, 

combined with a 12 percent 

precipitation decrease, resulted in an 

average increased extinction risk of 0.21 

to 0.30 for desert bighorn sheep across 

California; however, the modeled 

climate scenario did not appear to 

markedly change the extinction 

probability for sheep occupying the 

Peninsular Ranges. Epps et al. (2004, p. 

111) reported a 0–0.2 extinction 

probability for sheep in the Peninsular 

Ranges over the next 60 years under two 

scenarios, one being no further climate 

change and the other being the 2 degree 

temperature increase combined with the 

12 percent precipitation decrease (see 

also our response to Comment 21 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17305 

above). We cannot conclude from Epps 

et al. (2004) that the Peninsular bighorn 

sheep population will be under a greater 

risk of extinction from the modeled 

climate change scenario, and we do not 

believe it appropriate to revise and 

reanalyze our critical habitat 

designation at this time. Critical habitat 

designations do not signal that habitat 

outside of the designation is 

unimportant or may not contribute to 

recovery in the future. Should 

additional data become available, we 

may revise this critical habitat 

designation, subject to available funding 

and other conservation priorities. 

Comment 51: A number of 

commenters believe that the proposed 

revision of critical habitat will have a 

negative impact on sheep recovery 

because it excludes habitat that supports 

processes essential to metapopulation 

survival. One commenter believes that 

maintaining and reestablishing habitat 

connectivity to provide long-term 

genetic and demographic connection 

between ewe groups is crucial to 

recovering the Peninsular bighorn sheep 

and notes that it is a Priority 1 strategy 

in the Recovery Plan (Service 2000, p. 

113). Several commenters noted that 

connectivity of habitat, as well as the 

resulting facilitation of animal 

movements and gene flow among 

metapopulations, are recognized as 

crucial elements for recovery by the 

Service. Several commenters further 

stated that they believe the proposed 

rule fails to identify critical habitat in 

regions that are confirmed linkages 

between metapopulation subsegments, 

based on data and materials provided to 

the Service by the Bighorn Institute and 

by bighorn sheep researchers, such as 

Dr. Esther Rubin. Several commenters 

believe that the proposal would 

eliminate critical habitat crucial for 

maintaining connectivity between Unit 

1 and Unit 2A (thereby isolating the 

Peninsular bighorn sheep population in 

the San Jacinto Mountains) and between 

Units 2B and 3 (thereby isolating the 

Carrizo Canyon population). 

One commenter believes that 

connectivity between bighorn 

population sub-segments in the 

Peninsular Ranges has been predicted 

from preliminary genetic studies and 

verified by both radio tracking and GPS 

collar data. The commenter also stated 

that failure to identify critical habitat 

between the Northern Santa Rosa 

Mountains (Unit 2A) and the San 

Jacinto Mountains (Unit 1) and between 

the Fish Creek Mountains (Unit 2B) and 

Coyote Mountains (Unit 3) would result 

in a failure to apply the protections that 

the Service is required to afford to a 

recovering endangered species through 

the designation of essential habitat and 

critical habitat. The commenter further 

believes that such a failure would be 

especially pronounced in the case of the 

bighorn sheep, when the Recovery Plan 

and the best available science indicate 

that the protection of Peninsular 

bighorn sheep critical habitat 

connectivity is a crucial element for 

recovery to allow for its downlisting or 

delisting. Another commenter believes 

that failing to maintain critical habitat 

in these areas is a serious flaw of the 

proposed revised critical habitat 

designation and could jeopardize the 

persistence of isolated herds and 

preclude recovery of the Peninsular 

bighorn sheep. 

Our Response: We agree with the 

commenters that habitat connectivity is 

important to allow for movement 

between ewe groups and to maintain 

genetic variation; however, we do not 

have occurrence data suggesting specific 

travel corridors connecting the units 

discussed by the commenters, and we 

are unable to identify specific areas 

containing physical or biological 

features essential to the conservation of 

the DPS. Please see our responses to 

Comments 1, 5, and 7 and the ‘‘Criteria 

Used To Identify Critical Habitat’’ 

section of this final rule for further 

discussion. 

Comment 52: One commenter 

indicated that the population of 

Peninsular bighorn sheep dropped from 

possibly two million in 1800 to about 

1,200 in the 1970s, and then to about 

300 at the time of listing in 1998. The 

commenter believes that limiting 

Peninsular bighorn sheep habitat to 

420,487 ac (170,166 ha) (as stated in the 

proposed rule) would not protect the 

entire range of the species. 

Our Response: Our understanding is 

that the commenter may be confusing a 

possible estimate of all bighorn sheep in 

North America in 1800 with the 

Peninsular bighorn sheep DPS. As we 

stated in our response to Comment 8 

above, when rangewide estimates were 

made in the 1970’s, the population was 

estimated as high as 1,171 in 1974 

(Weaver 1974, p. 5). At no point in 

history was the population of 

Peninsular bighorn sheep near two 

million. In this rulemaking, we are 

designating critical habitat for the 

Peninsular bighorn sheep and not the 

entire population of bighorn sheep that 

exists in various parts of North America. 

We believe the acreage we are 

designating in this final rule (376,938 ac 

(152,542 ha)) is adequate to provide for 

the conservation of the Peninsular 

bighorn sheep DPS. 

Comments Related to Proposed 

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

Act 

Comment 53: One commenter stated 

that conservation groups disagree with 

the Service’s assertion that it is 

appropriate to exclude some habitats 

from critical habitat designation because 

those areas are encompassed by the 

Coachella Valley MSHCP and draft 

Agua Caliente Band of Cahuilla Indians 

Tribal HCP. The commenter also 

believes that tribal lands should be 

retained in critical habitat for many 

reasons, including that the Tribal HCP 

is in draft form and not yet approved, 

nor is it found to adequately conserve 

the DPS. The commenter asserted that 

critical habitat should be designated 

even in areas where these plans may 

overlap to some degree in order to 

provide a safety net for habitat 

conservation for this endangered DPS. 

Several additional commenters also 

questioned the proposed exclusion of 

lands owned by the Agua Caliente Band 

of Cahuilla Indians Tribe. 

One commenter noted that the 

proposed rule states (as reason for 

excluding critical habitat encompassed 

by the Agua Caliente HCP), ‘‘The 

designation of critical habitat would be 

expected to adversely impact our 

working relationship with the Tribe and 

we believe that Federal regulation 

through critical habitat designation 

would be viewed as an unwarranted 

intrusion into tribal natural resource 

programs (October 10, 2007, 72 FR 

57750).’’ The commenter believes this 

argument is not acceptable because it 

fails to take the conservation and 

recovery goals of the Act adequately 

into account. 

Our Response: We believe the 

exclusion of lands under the Coachella 

Valley MSHCP and Agua Caliente Band 

of Cahuilla Indians’ lands is appropriate 

based on the potential impacts 

associated with designating these areas 

as critical habitat (see ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’ 

section of this final rule for a detailed 

discussion). Section 4(b)(2) of the Act 

allows the Secretary to exclude areas 

from critical habitat if he determines 

that the benefits of such exclusion 

outweigh the benefits of specifying such 

area as part of critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. We believe that critical habitat 

designation could negatively impact the 

working relationships and conservation 

partnerships we have formed with the 

17306 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

Coachella Valley MSHCP permittees, 

the Tribe, and other private landowners. 

This belief is supported by the 

following statement from the Tribe 

received during the comment period for 

the proposed rule, ‘‘Contrary to the 

requirements of the ESA, Executive 

Order 13175, and the Secretarial Order, 

the proposed rule fails to defer to the 

tribe’s own established standards, it 

discourages the Tribe from developing 

its own policies, and it intrudes on 

tribal management of its lands. 

Designation of critical habitat could 

delay approval of the 2007 draft Tribal 

HCP, thus adding to the costs of 

preparing the Tribal HCP and 

undermining significant protections for 

the bighorn sheep. Designation of 

critical habitat also can be expected to 

increase the amount of time and 

financial resources necessary to 

undertake covered activities described 

in the Tribal HCP, yet it is unlikely to 

yield material benefits for the bighorn 

sheep.’’ 

Additionally, as explained in detail in 

the ‘‘Application of Section 4(b)(2)— 

Other Relevant Impacts—Conservation 

Partnerships’’ section of this final rule, 

we believe these conservation 

partnerships through the Coachella 

Valley MSHCP and tribal conservation 

programs will provide as much or more 

benefit than consultation under section 

7(a)(2) related to the critical habitat 

designation (the primary benefit of a 

designation). See our response to 

Comment 2 above for additional 

discussion. With regard to the 

commenter’s assertion that this 

argument is not acceptable because it 

fails to take the conservation and 

recovery goals of the Act adequately 

into account, we take conservation into 

account when determining areas that 

meet the definition of critical habitat 

and in considering the benefits of 

specifying any particular area as critical 

habitat. After weighing the benefits of 

excluding a particular area against the 

benefits of including such area as 

critical habitat, the Secretary may 

exclude the area from critical habitat if 

he determines that the benefits of 

exclusion outweigh the benefits of 

inclusion and that the failure to 

designate such area as critical habitat 

will not result in the extinction of the 

species concerned. Thus, at the end of 

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

Act, we consider whether an exclusion 

will result in extinction of the species, 

not whether the exclusion could impact 

recovery goals. 

Comment 54: One commenter stated 

opposition to the Service’s policy of 

relying on section 4(b)(2) of the Act to 

exclude habitat that may be covered by 

management plans or conservation 

plans under the logic that these areas do 

not need ‘‘special management’’ 

pursuant to section 3(5)(A) of the Act. 

The commenter referred to this 

approach as ‘‘belt and suspenders’’ and 

reminded the Service that the district 

court of Arizona struck down this 

approach in Center for Biological 

Diversity, et al. v. Norton (D. Ariz. 

2003). The commenter believes that all 

Peninsular bighorn sheep essential 

habitat needs special management 

because of the variety of impacts to its 

habitat (e.g., impacts from development, 

grazing, fire management activities, and 

off-road vehicle use). The commenter 

believes that current or future 

management actions provided for the 

Peninsular bighorn sheep or its habitat 

by management plans or conservation 

plans are not a reasonable justification 

for excluding these areas from the 

protection that a designation of critical 

habitat provides. The commenter further 

stated that the Act defines critical 

habitat as an area that may need special 

management, and therefore areas that 

are receiving management under a 

management plan or conservation plan 

meet the definition of critical habitat 

and should not be excluded if the 

necessary management is being 

provided under a plan. The commenter 

concluded that the Service should 

include in the final critical habitat 

designation all areas within the 

boundaries of conservation or 

management plans for Peninsular 

bighorn sheep because these areas meet 

the definition of critical habitat by 

nature of their need for special 

management. 

Our Response: The commenter 

appears to be confusing the purposes of 

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

Section 3(5)(A) provides the 

requirements for identifying critical 

habitat, while section 4(b)(2) directs the 

Secretary to consider the impacts of 

designating such areas as critical habitat 

and provides the Secretary with 

discretion to exclude particular areas if 

the benefits of exclusion outweigh the 

benefits of inclusion. In this final 

revised rule, we did not state that areas 

do not meet the definition of critical 

habitat under 3(5)(A) of the Act because 

they are being adequately managed. 

However, we consider the management 

of particular areas that do meet the 

definition of critical habitat in our 

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

Act. 

We explain our criteria for 

designating critical habitat in our 

response to Comment 6 above, as well 

as the ‘‘Criteria Used To Designate 

Critical Habitat’’ section below. We 

believe our criteria captures all areas 

that meet the definition of critical 

habitat under section 3(5)(A) of the Act, 

in particular those areas that were 

occupied at the time of listing, and 

contain the physical and biological 

features essential to the conservation of 

the DPS that may require special 

management considerations or 

protection. We will focus our response 

to this comment on our exclusion of 

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

that we determined met the definition of 

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

the Act. 

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

the Secretary shall designate critical 

habitat, and make revisions thereto, 

under subsection (a)(3) on the basis of 

the best scientific data available and 

after taking into consideration the 

economic impact, the impact to national 

security, and any other relevant impact, 

of specifying any particular area as 

critical habitat. The Secretary may 

exclude any area from critical habitat if 

he determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless he determines, 

based on the best scientific and 

commercial data available, that the 

failure to designate such area as critical 

habitat will result in the extinction of 

the species concerned. Therefore, 

consistent with the Act, we must 

consider the relevant impacts of 

designating areas that meet the 

definition of critical habitat using the 

best available scientific data prior to 

finalizing a critical habitat designation. 

After determining the areas that meet 

the definition of critical habitat under 

section 3(5)(A) of the Act as described 

above, we took into consideration the 

economic impact, the impact on 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat for Peninsular bighorn 

sheep. In this final revised designation, 

we recognize that designating critical 

habitat in areas where we have 

partnerships with landowners that have 

led to conservation or management of 

listed species on non-Federal lands has 

a relevant perceived impact to 

landowners and a relevant impact to 

future partnerships and conservation 

efforts on non-Federal lands. These 

impacts are described in detail in the 

‘‘Conservation Partnerships on NonFederal Lands’’ section below. Based on 

these relevant impacts, we weighed the 

benefits of designating areas as critical 

habitat against the benefits of excluding 

these areas from the critical habitat 

designation. Please see the ‘‘Application 

of Section 4(b)(2) of the Act’’ and 

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

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17307 

Act’’ sections of this final revised rule 

for a detailed discussion of the benefits 

of excluding lands covered by 

management plans versus the benefits of 

including these areas in a critical habitat 

designation. 

Upon weighing the specific benefits of 

inclusion against specific benefits of 

exclusion, we determined that the 

benefits of excluding a portion of Units 

1 and 2A outweigh the benefits of 

including these areas in the final critical 

habitat designation. When weighing the 

benefits of including an area in the 

critical habitat designation, we fully 

consider the regulatory benefits 

provided to the species under section 

7(a)(2) of the Act based on the statutory 

difference between a jeopardy analysis 

and an adverse modification analysis. In 

this analysis, we consider the recovery 

standards and the benefits associated 

with designation. Further, we 

determined that the exclusion of these 

areas will not result in extinction of 

Peninsular bighorn sheep. This 

determination to exclude areas where 

the benefits of exclusion outweigh the 

benefits of inclusion and where we 

determined that the exclusion will not 

result in the extinction of the DPS, is 

consistent with the statutory obligations 

of the Act. Therefore, we believe these 

exclusions are in full compliance with 

the Act. 

Comment 55: One commenter stated 

that the exclusion of areas covered 

under the Coachella Valley MSHCP has 

some merit, but notes that the 

conservation areas in that plan are based 

on the 2001 critical habitat designation 

for bighorn sheep, which the commenter 

asserts incorporated the 0.5-mi. (0.8-km) 

buffer zone from areas of 20 percent 

slope as described in the 2000 Recovery 

Plan. The commenter asserted that this 

presents a potential inconsistency of 

conservation boundaries and 

recommends that the Service take steps 

to assure that the inappropriate buffer 

zone is removed from the Coachella 

Valley MSHCP. 

Our Response: It is inappropriate to 

compare the boundaries of HCP 

conservation areas to the boundaries of 

a critical habitat designation. These two 

areas serve two different functions with 

regard to the conservation of species 

and should not be synonymized. 

Furthermore, critical habitat 

designations do not signal that habitat 

outside of the designation is 

unimportant or may not contribute to 

recovery. This includes habitat outside 

of the critical habitat designation but 

inside Coachella Valley MSHCP 

modeled Peninsular bighorn sheep 

habitat. 

Comment 56: One commenter 

supported the exclusion of lands 

covered by HCPs under section 4(b)(2) 

of the Act and suggested that the Service 

exclude from critical habitat lands 

covered under the East County MHCP. 

Our Response: At this time, the HCP 

for east San Diego County (East County 

MHCP) is being developed, and a draft 

plan is not available for public review. 

We understand the commenters’ 

concern that a designation of critical 

habitat in areas that may be addressed 

in the future by the East County MHCP 

may have a negative effect on entities 

pursuing the HCP and deter its 

completion. This concern is consistent 

with our discussion of conservation 

partnerships in the ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section of 

this final rule. However, we also 

recognize that there is a regulatory and 

recovery benefit to designating critical 

habitat in areas that are not protected 

through existing management or 

conservation plans. Exclusions under 

section 4(b)(2) of the Act must be 

considered on a case-by-case basis. 

Because a draft of the East County 

MHCP has not been released for public 

comment or formally evaluated by the 

Service, it is not clear that this 

framework plan will adequately address 

the conservation needs of Peninsular 

bighorn sheep. Additionally, it is 

unclear to us at this time which areas 

will actively develop subarea plans 

under the East County MHCP. 

Therefore, we cannot determine that the 

regulatory and recovery benefits of a 

critical habitat designation in these 

areas would be minimized by the 

measures provided under this future 

plan, and as such, we did not exclude 

these lands from critical habitat 

(portions of Units 2B and 3 in San Diego 

County). However, if this designation is 

revised in the future, we will re-evaluate 

these areas for potential exclusion at 

that time. We are committed to continue 

working with all East County MHCP 

partners to minimize any additional 

regulatory burden attributable to this 

critical habitat designation. 

Comment 57: One commenter 

supported the exclusion of lands within 

the boundaries of the Coachella Valley 

MSHCP. The commenter suggested that 

all lands, including lands owned by 

such entities as the California 

Department of Fish and Game and the 

BLM, should be excluded from critical 

habitat. The commenter further stated 

that the Service agreed, in signing the 

Implementing Agreement, that all lands 

within the boundary of the Coachella 

Valley MSHCP would be excluded from 

critical habitat designation. The 

commenter indicated that failure to 

exclude these lands will violate the 

Service’s agreement with the cities and 

signatories to the Implementing 

Agreement. Another commenter stated 

that Federal lands within the Coachella 

Valley MSHCP area owned by the BLM 

and Forest Service should be excluded 

from critical habitat designation, and 

failure to do so could result in 

unnecessary duplication of regulatory 

requirements. The commenter further 

stated that the BLM and Forest Service 

are participating in the Coachella Valley 

MSHCP as partners and that each of 

these agencies will participate in 

cooperative management and 

coordination of habitat conservation for 

covered species. 

Our Response: Contrary to the 

commenter’s assertion, Section 14.9 of 

the Implementing Agreement does not 

absolutely preclude critical habitat 

designation, and we disagree with the 

assertion that the failure to exclude all 

lands within the Coachella Valley 

MSHCP boundary will violate the 

Service’s agreement with the signatories 

to the Implementing Agreement. 

Consistent with the Implementing 

Agreement, we excluded lands under 

the jurisdiction of the permittees 

addressed by the Coachella Valley 

MSHCP in Unit 1 and Unit 2A from this 

final revised critical habitat designation 

because the benefits of exclusion 

outweigh the minimal benefits of 

inclusion. See our responses to 

Comments 53 and 55 above, and 

‘‘Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships’’ section below for more 

information regarding why we excluded 

38,759 ac (15,685 ha) in Unit 1 and Unit 

2A. 

Finally, regarding the commenter’s 

concern that Federal lands (owned by 

the BLM and the Forest Service) within 

the Coachella Valley MSHCP area 

should also be excluded from critical 

habitat designation, we acknowledge 

that these Federal landowners are 

Cooperating Agencies of the Coachella 

Valley MSHCP, and as such, are 

providing Complementary Conservation 

according to section 7.3 of the 

Implementing Agreement. We 

appreciate and commend the efforts of 

the BLM and the Forest Service to work 

with the Coachella Valley MSHCP 

permittees and to conserve federally 

listed species on their lands. 

The Secretary has the discretion to 

exclude an area from critical habitat 

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

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

17308 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

designating such area as critical habitat, 

unless he determines that the exclusion 

would result in the extinction of the 

species concerned. Based on the record 

before us, we have elected not to 

exclude the BLM and Forest Service 

lands and are designating these lands as 

critical habitat for the Peninsular 

bighorn sheep. 

Consistent with the ‘‘No Surprises’’ 

assurances provided to the Coachella 

Valley MSHCP permittees under section 

10 of the Act, we do not expect that 

additional regulatory actions or 

measures will be required by the BLM 

or Forest Service due to designation of 

these lands as critical habitat. 

Comments on Lands Designated as 

Critical Habitat 

Comment 58: One commenter 

believes that if both the area north of 

Chino Canyon and near Interstate 8 are 

to be included in the final designation, 

then the observations used in support of 

these ‘‘expansions’’ should be presented 

in a table and copies of the original field 

notes used in support of this 

observation should be available for 

public inspection. Two commenters 

stated that if critical habitat is to be 

‘‘expanded,’’ the raw data used to make 

such decisions should be made publicly 

available and open to inspection and 

independent validation. 

Our Response: All occurrence data 

and other information used in the 

delineation of critical habitat for 

Peninsular bighorn sheep were available 

to the public during the comment 

periods and are on file at the Carlsbad 

Fish and Wildlife Office and available 

for public inspection (see FOR FURTHER

INFORMATION CONTACT section of this 

rule). 

Comment 59: Several commenters 

believe that the proposed critical habitat 

designation fails to protect habitat 

essential for Peninsular bighorn sheep 

recovery. One commenter stated the 

proposed rule excludes significant areas 

of habitat essential for the DPS and fails 

to support the goals called for in the 

Recovery Plan to promote population 

growth and protect, acquire, enhance, 

and restore habitat. Several commenters 

believe the proposal is contrary to the 

Recovery Plan as well as inconsistent 

with promoting the survival and 

recovery of the DPS. One commenter 

asserted that if Peninsular bighorn 

sheep were recovered within the newly 

proposed critical habitat, it would still 

be threatened or endangered in a 

significant portion of its range. The 

same commenter indicated that for 

critical habitat to facilitate recovery as it 

was designed to do, the designation 

should maintain all current critical 

habitat and be expanded to include 

reaches in all other areas identified as 

having recovery value as identified in 

the Recovery Plan. The commenter 

further stated that by proposing to 

exclude currently designated critical 

habitat, they believe the Service is 

failing in its obligation to provide for 

the recovery of Peninsular bighorn 

sheep because the value of the critical 

habitat to the recovery of the DPS will 

be diminished by these omissions. 

Finally, another commenter believes the 

Service should designate as critical 

habitat sufficient areas to allow for full 

recovery of Peninsular bighorn sheep. 

Our Response: It is important to note 

that the designation of critical habitat is 

a different process than the 

development of a recovery plan. A 

critical habitat designation is a specific 

regulatory action that defines specific 

areas within the geographical area 

occupied by the species at the time of 

listing containing physical or biological 

features essential to the conservation of 

a species, and areas outside the 

geographical area occupied by the 

species at the time of listing that are 

essential for the conservation of the 

species. In contrast, a recovery plan is 

a guidance document developed in 

cooperation with partners and provides 

a roadmap with detailed site-specific 

management actions to help conserve 

listed species and their ecosystems. 

Conservation (i.e., recovery) is 

defined in section 3 of the Act as the 

‘‘use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary.’’ In accordance 

with section 4(a)(1) of the Act, we 

determine if any species is an 

endangered or threatened species (or 

revise its listed status) because of any of 

the five threat factors identified in the 

Act. Therefore, conservation, or 

recovery, is achieved when a five-factor 

analysis indicates that current and 

future threats are minimized to an 

extent that the species is no longer in 

danger of extinction or likely to become 

endangered in the foreseeable future. 

Recovery is a dynamic process requiring 

adaptive management of threats, and 

there are many paths to accomplishing 

recovery of a species. We believe that 

the lands identified in this rule as 

meeting the definition of critical habitat 

are adequate to ensure the conservation 

of Peninsular bighorn sheep throughout 

their extant range based on the best 

available scientific information at this 

time. 

Additionally, we recognize that the 

designation of critical habitat may not 

include all of the habitat that may be 

determined to be necessary for the 

recovery of Peninsular bighorn sheep, 

and critical habitat designations do not 

signal that habitat outside of the 

designation is unimportant or may not 

contribute to recovery. Areas outside the 

final critical habitat designations will 

continue to be subject to conservation 

actions implemented under section 

7(a)(1) of the Act, as well as regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard and the 

prohibitions of section 9 of the Act if 

actions occurring in these areas may 

affect sheep. See the ‘‘Criteria Used To 

Identify Critical Habitat,’’ ‘‘Summary of 

Changes From the 2001 Critical Habitat 

Designation To the 2007 Proposed Rule 

To Revise Critical Habitat,’’ and 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat To This Final Rule To Revise 

Critical Habitat’’ sections of this final 

rule for more information. Please also 

see additional discussion regarding 

recovery plans and conservation of 

Peninsular bighorn sheep in our 

responses to Comments 1, 5, 6, 7, and 

53 above. 

Comment 60: Several commenters 

stated that the proposed rule calls for 

eliminating large swaths of essential 

habitat, including a large area of lowelevation habitat along the eastern 

slopes of the bighorn’s range that is 

considered by scientists familiar with 

Peninsular bighorn sheep to be essential 

habitat for the DPS and requisite for 

their recovery. Several commenters 

stated that the proposed critical habitat 

designation would eliminate alluvialfan habitat (about 249,000 ac (100,767 

ha), as noted by several commenters), 

much of which is the most important 

Peninsular bighorn sheep habitat in 

need of protection due to threats of 

housing and golf course projects. One 

commenter believes that not including 

these areas stands in stark contrast to 

the discussion in the proposed rule 

itself which acknowledges that: 

‘‘Special management considerations or 

protection may be needed to alleviate 

the effects of development on 

Peninsular bighorn sheep habitat, 

especially lower elevation habitat, 

alluvial fans, and areas of possible ewe 

group connectivity near urban areas 

(October 10, 2007, 72 FR 57746).’’ The 

same commenter believes that this 

retraction of habitat ignores 

management actions currently in place 

(e.g., restrictions on trails, prohibitions 

on dogs) to limit disturbance in habitat 

so that this DPS could re-colonize 

historically used areas. Several 

commenters indicated that it is 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17309 

important to the sheep’s recovery that 

low-elevation alluvial areas remain 

critical habitat. 

Our Response: We agree that lowelevation habitat is important for 

Peninsular bighorn sheep, and where 

occurrence data indicated sheep use, we 

revised our proposed revision of critical 

habitat to include additional areas, 

including habitat along the eastern edge 

of the Santa Rosa Mountains (August 26, 

2008, 73 FR 50498). We included lowelevation, low-slope, and alluvial-fan 

habitat in the designation of critical 

habitat where the available data support 

a determination that those areas contain 

the physical and biological features 

essential to the conservation of the DPS. 

See our response to Comment 3 and the 

‘‘Criteria Used To Identify Critical 

Habitat’’ and ‘‘Summary of Changes 

From the 2007 Proposed Rule To Revise 

Critical Habitat To This Final Rule To 

Revise Critical Habitat’’ sections of this 

final rule for further discussion of this 

topic. 

Comment 61: One commenter 

believes that the Service eliminated 

from critical habitat a number of 

important water sources for Peninsular 

bighorn sheep. The commenter asserted 

that most of the 20 springs and seeps 

documented by the South Coast 

Regional Water Quality Control Board 

within existing Peninsular bighorn 

sheep habitat in the Santa Rosa and San 

Jacinto National Monument would not 

be in the proposed critical habitat 

designation. These springs include Agua 

Alta Spring, Cottonwood Spring, Potrero 

Spring, Agua Bonita Spring, Mesquite 

Flats Spring, Mad Women Spring, Dos 

Palmas Spring, Indian Spring, East Fork 

Spring, Palm Canyon Spring, Palm 

Canyon Hot Spring, West Fork Creek, 

Engbacha Spring, Trading Post Spring, 

and Murray Canyon Spring. The 

commenter further stated that important 

perennial streams such as Andreas 

Creek, West Fork Palm Canyon Creek, 

Cedar Creek, and Snow Creek have also 

been eliminated in the proposed 

designation. Finally, the commenter 

believes that these water sources should 

remain in critical habitat due to their 

present value to bighorn sheep recovery 

and because they will become 

increasingly important as climate 

change alters bighorn habitat and likely 

reduces available water. 

Our Response: During the process of 

delineating critical habitat, we used 

water source information from U.S. 

Geological Survey’s National 

Hydrography Dataset geodatabase 

(downloaded January 2007). When 

delineating boundaries of critical 

habitat, we made sure to include water 

sources within critical habitat (see 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this rule). We believe 

we included sufficient water sources 

within the designation to account for 

the water needs of Peninsular bighorn 

sheep. Additionally, the commenter 

failed to provide: (1) Supporting 

information that the specific water 

sources identified in the comment are 

essential to Peninsular bighorn sheep; 

(2) data that sheep have been observed 

and documented to use these water 

sources; or (3) data indicating that 

climate change will lead to a reduction 

in water availability in the Peninsular 

Ranges. At this point in time, the 

available scientific evidence does not 

suggest that the scenario described 

above by the commenter will result from 

climate change in the Peninsular Ranges 

(see our response to Comment 21 

above). 

Comment 62: One commenter 

believes that the Service made an 

erroneous determination that all land in 

Unit 2A is currently occupied by the 

DPS. The commenter stated that the 

proposed critical habitat rule is flawed 

because it does not justify the inclusion 

of unoccupied areas, in contravention of 

both the Act and its implementing 

regulations. The commenter asserted 

that the criteria used to identify critical 

habitat clearly included criteria that 

leads to the inclusion of unoccupied 

habitat within the critical habitat 

delineation. The commenter added that 

the Service’s effort to justify inclusion of 

unoccupied areas also crosses the line of 

reasonableness, as identified in Home 

Builders v. U.S. Fish and Wildlife 

Service, 268 F. Supp. 1197, 1214 (E.D. 

Cal. 200). 

The same commenter opposed the 

delineation of critical habitat on private 

property in Riverside County, stating 

that property-specific surveys and 

reports by experts reflect that the 

property neither contains necessary 

PCEs nor exhibits characteristics 

consistent with critical habitat. The 

commenter provided biological reports 

in support of their assertion that the 

property is not occupied by Peninsular 

bighorn sheep, does not contain features 

essential to the conservation of the 

species, and does not require special 

management considerations. Finally, the 

commenter believes that as unoccupied 

territory, the property is not essential for 

the conservation of the DPS, and that 

the Service erroneously determined that 

the property contains resources 

essential to the conservation of 

Peninsular bighorn sheep. 

Our Response: All of the critical 

habitat units (including Unit 2A) are 

occupied; however, bighorn sheep have 

large home ranges, and not all areas 

within their range (or the critical habitat 

units) will be occupied at all times of 

the day, season, or year. Additionally, 

all critical habitat units contain the 

PCEs in a continuous patch of habitat 

that allows the population distribution 

of Peninsular bighorn sheep within the 

units to shift and move based on the 

resource needs of the DPS. 

Consequently, individual survey results 

for Peninsular bighorn sheep within the 

critical habitat units may be negative in 

any given year, even though surveyed 

areas still contain habitat required for 

the long-term conservation of the DPS. 

With regard to the property specific 

claims from the commenter, we agree 

that portions of the property in question 

do not contain the PCEs for Peninsular 

bighorn sheep. We also recognize that 

the majority of occurrence data 

considered in the delineation of critical 

habitat (local to the property in 

question) lies to the west of the property 

in the Santa Rosa Mountains. For 

reasons discussed in the above 

paragraph, negative survey results do 

not automatically indicate an area is not 

essential to the DPS. We determined 

that a portion of the property 

(approximately 46 ac (19 ha) in the 

southwest corner of section 7) does meet 

the definition of critical habitat; 

however, those 46 ac (19 ha) fall within 

the Coachella Valley MSHCP area and 

are excluded from this final designation 

(see ‘‘Exclusions Under Section 4(b)(2) 

of the Act’’ section of this final rule for 

a detailed discussion). Other areas in 

the property, including some areas 

previously designated as critical habitat 

in 2001, do not meet the definition of 

critical habitat and are not included in 

this designation. 

Comment 63: One commenter stated 

that the revision of critical habitat is 

justified and overdue. The commenter 

added that the 2001 designation 

included areas that did not have 

documentation of use by Peninsular 

bighorn sheep and the commenter 

further suggested that the revision is 

more definitive of the actual critical 

habitat needs than was the previous 

designation. 

Our Response: We agree with the 

commenter that some areas in the 2001 

critical habitat designation did not have 

documented sheep use. Further, we 

believe the criteria we used to identify 

critical habitat in this final rule yields 

a more precise identification of the areas 

within the geographical area occupied 

by Peninsular bighorn sheep containing 

the physical or biological features 

essential to the conservation of this 

DPS. Please see the ‘‘Criteria Used To 

Identify Critical Habitat,’’ ‘‘Summary of 

Changes From the 2001 Critical Habitat 

17310 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

Designation To the 2007 Proposed Rule 

To Revise Critical Habitat,’’ and 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat To This Final Rule To Revise 

Critical Habitat’’ sections of this rule for 

more detailed discussions. 

Comment 64: Two commenters 

believe that property owned by 

Cornishe of Bighorn is not Peninsular 

bighorn sheep habitat, does not meet the 

definition of critical habitat, and any 

benefits associated with designating the 

property as critical habitat are 

outweighed by the benefits of exclusion. 

The commenters indicated the property 

lies within the approved Coachella 

Valley MSHCP area and should be 

excluded from designation pursuant to 

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

Our Response: Although we disagree 

with the commenter’s assertion that the 

area in question does not meet the 

definition of critical habitat, we 

acknowledge that the property falls 

within the boundaries of the Coachella 

Valley MSHCP from which we are 

excluding all private lands and 

permittee-owned or controlled lands. As 

a result, the property in question is 

excluded from the designation of critical 

habitat for Peninsular bighorn sheep. 

Please see the ‘‘Application of Section 

4(b)(2)—Other Relevant Impacts— 

Conservation Partnerships’’ section of 

this final rule for additional discussion 

of the Coachella Valley MSHCP and the 

benefits provided to Peninsular bighorn 

sheep. 

Comment 65: In response to our 

addition of critical habitat to Unit 3 near 

Interstate 8 in the August 26, 2008, 

NOA, one commenter stated, ‘‘In the 

October 2007 Proposed Rule, the 

USFWS made an appropriate proposal 

for critical habitat near [Interstate 8] 

based on currently occupied habitat 

rather than transiently used areas or 

potential habitat, both of which were 

not essential to the recovery of this 

DPS.’’ The commenter believes that 

there are no data to suggest more than 

transient use by a handful of bighorn 

sheep in Unit 3 near Interstate 8 based 

on his review of information provided 

by us under the Freedom of Information 

Act, the historic record, and the 

commenter’s fieldwork in this area. The 

commenter further stated that there is 

no evidence that there was ever a 

permanent bighorn sheep population of 

20 to 30 individuals between Interstate 

8 and the U.S.-Mexico border. The 

commenter wrote, ‘‘During my on-theground surveys for bighorn sheep in the 

[Interstate 8] Island and south of it, no 

bighorn sheep were observed. That the 

USFWS has only produced speculative 

‘evidence’ of potential bighorn sheep 

fecal pellets (which could also be from 

deer) from this relatively small area 

clearly shows that it is not permanently 

occupied by bighorn sheep or that more 

than a few individuals occasionally visit 

it.’’ To illustrate the ‘‘transient’’ nature 

of bighorn sheep use of the Interstate 8 

island area, the commenter described 

finding ungulate tracks and pellet 

groups (a preliminary DNA test yielded 

the ND5 sequence, presumably a 

positive test for bighorn sheep) 

concentrated around a sand hill with 

numerous brittlebush (Encilia farinosa) 

plants; six months later the forage was 

consumed or desiccated, and no 

additional ungulate sign was present. 

Our Response: We determined that 

the area of concern near Interstate 8 to 

the U.S.-Mexico border meets the 

definition of critical habitat and is used 

more than ‘‘transiently’’ by Peninsular 

bighorn sheep (Botta 2008b, pp. 1–3; 

Botta 2008c, p. 1; Botta 2009, pp. 1–4; 

Davenport 2009, pp. 6–7; James 2007, 

pp. 1–4; Kim 2008, p. 2; Roblek 2008a, 

p. 1–12; Roblek 2008b, p. 1; Wagner 

2007, p. 1; Wagner 2008, pp. 1–3). 

According to data in our files, there are 

numerous and repeated sightings of 

bighorn sheep over several years in the 

Jacumba Mountains around the area 

known as Mountain Springs. A recent 

aerial survey (conducted on November 

17, 2008) counted 14 bighorn sheep, 

including ewes, lambs, yearlings, and 

rams in the approximately 3,000-acre 

area of habitat existing between the eastand west-bound lanes of Interstate 8 

(Botta 2009, p. 1). An additional 36 

bighorn sheep were counted within less 

than a mile of the area. Bighorn sheep 

were also counted in the area during the 

aerial census conducted in 2006 (Botta 

2008b, p. 1). Finally, there are multiple 

sightings in the area reported by other 

agencies and individuals, some of 

which have occurred south of Interstate 

8 (Davenport 2009, p. 5). The 

commenter furnishes no objective, 

repeatable method for deciding that 

sheep use of the area is ‘‘transient,’’ nor 

does he explain how he quantified the 

number of sheep in the area. 

Approximately 50 bighorn sheep were 

visually detected in the Interstate 8 

island area during the last aerial survey. 

Additionally, the 2006 aerial survey 

recorded bighorn sheep in the area, and 

data have been repeatedly obtained from 

other agencies and individuals 

(Davenport 2009, p. 5; James 2007, p. 1; 

Kim 2007, p. 2). The commenter implies 

that occasional observations of mule 

deer in the area justifies concluding that 

the area ‘‘is not permanently occupied 

by bighorn sheep.’’ However, the 

commenter furnishes no objective 

method that is accepted by the scientific 

community for determining 

‘‘permanent’’ occupancy. Given that 

aerial surveys and other site visits have 

repeatedly recorded bighorn sheep in 

the area, we consider the area occupied 

by bighorn sheep, and sightings of mule 

deer do not confound these direct 

observations of bighorn. 

In regard to the commenter’s 

assertions based on the ground surveys 

of the Interstate 8 island area, we 

believe that this type of survey is an 

unreliable method for estimating 

bighorn sheep population levels or 

distribution in the Peninsular Ranges. 

Although it may be a viable 

methodology for some locations, the 

conditions needed for such surveys to 

be effective do not exist in the 

Peninsular Ranges. The topography is 

rugged and vast, and the animals blend 

with their habitat extremely well, 

making it easy for an observer to miss 

bighorn sheep. A group of animals can 

easily be hidden within the vegetation 

and topography, and a human (on foot) 

can only view a small fraction of the 

area. Furthermore, bighorn sheep are 

capable of detecting hikers and quickly 

moving out-of-view before being seen. 

The brittlebush scenario described 

above by the commenter in support of 

‘‘transient’’ sheep use illustrates how 

Peninsular bighorn sheep, a relatively 

large mammal, exist in one of the 

harshest deserts in North America. They 

move across the landscape in response 

to changing resource conditions and 

need large intact blocks of habitat to 

recover and persist through time. 

Although brittlebush is a Peninsular 

bighorn sheep forage species, it is not 

the only one present in the area. The 

scenario described by the commenter 

actually lends support to the 

designation of the area as critical 

habitat. 

Comment 66: One commenter stated 

that the supposed connectivity between 

the U.S. bighorn sheep population and 

those in northern Baja has no basis in 

fact. The commenter added that south of 

the U.S.-Mexico border, there are only a 

handful of bighorn sheep sightings 

within 25 mi (40 km) of the border 

within the mountains of northern Baja 

(Sierra Cucapa and Sierra de Juarez), 

and the commenter believes there is no 

evidence that these areas constitute 

more than transient use. 

Our Response: Bighorn sheep 

populations are found along the eastern 

escarpment of the Peninsular Ranges 

extending most of the length of the Baja 

Peninsula. An examination of the 

topography on both sides of the border 

reveals the type of steep, rugged 

topography and vegetation typical of 

bighorn sheep habitat. We find no 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17311 

reason to believe that prior to European 

settlement bighorn sheep failed to move 

across what is now the international 

boundary. To our knowledge, the 

mountainous areas south of the border 

have not been surveyed since the mid 

1990’s, and the commenter is correct in 

pointing out our lack of recent 

information concerning bighorn sheep 

distribution and abundance in Baja 

Norte, Mexico. The mid 1990’s 

corresponded with the low point of 

bighorn sheep population levels in the 

United States and bighorn sheep were 

not regularly observed in some areas 

where they are currently present. 

Bighorn sheep in Mexico may have 

experienced similar population 

fluctuations and changes in distribution 

over time. 

It has been hypothesized that the 

bighorn sheep we are seeing around 

Interstate 8 and south are originating 

from Carrizo Gorge to the north. 

Although plausible, none of the 

observed Peninsular bighorn sheep have 

been radio-collared or ear-marked, as 

some are in Carrizo Gorge. Therefore, 

we cannot be certain of the origin of the 

sheep observed in the U.S. Jacumba 

Mountains. Interaction with bighorn 

sheep in the Peninsular Ranges of 

Mexico is the only possible route for a 

natural connection with other bighorn 

sheep populations for the DPS in the 

United States. All other routes are 

precluded in the United States by 

human developments. 

Comment 67: One commenter states 

that the area south of Interstate 8 is not 

essential to the recovery of this DPS 

because the Carrizo subpopulation has 

already exceeded the minimum 

population number needed for recovery 

(approximately fourfold based on 

California Department of Fish and Game 

census data). 

Our Response: The Recovery Plan for 

Peninsular bighorn sheep establishes 

downlisting and delisting criteria that 

go beyond just attaining a minimum 

population number, including 

maintaining at least 25 ewes for 6 and 

12 consecutive years, respectively, in 

each of 9 recovery regions. The goal of 

maintaining 25 ewes for 6 and 12 years 

is a minimum, not an upper limit. The 

designation of critical habitat in the 

Jacumba Mountains will also contribute 

to the preservation of habitat 

connectivity and the ability of 

Peninsular bighorn sheep to move freely 

throughout the Peninsular Ranges. 

Comment 68: Upon examination of 

our data used in the delineation process 

obtained by a commenter through the 

Freedom of Information Act process, the 

commenter stated the Service and others 

assume that tracks and pellets found in 

the Interstate 8 area are from bighorn 

sheep rather than mule deer and that 

‘‘tracks and pellets of bighorn sheep and 

mule deer are not reliably 

distinguishable.’’ 

Our Response: We agree with the 

commenter that it is not possible to 

reliably distinguish bighorn sheep and 

mule deer fecal pellets (by themselves) 

because there is too much variation. 

However, in the context of a field 

situation there is frequently other 

information present. Most biologists 

with extensive field experience believe 

they can identify the respective tracks 

reliably when there are several sets or 

the substrate allows for a distinct 

impression. Additionally, the physical 

characteristics of the hooves differ; 

therefore, the tracks are distinguishable 

by a trained biologist. As previously 

mentioned, the elevation, topography, 

and vegetation also provide a context for 

identification. Given that the vast 

majority of animal sightings in typical 

bighorn sheep habitat are Peninsular 

bighorn sheep, it would be reasonable to 

conclude that the majority of sign was 

left by Peninsular bighorn sheep (Botta 

2008b, pp. 1–3; Botta 2008c, p. 1; Botta 

2009, pp. 1–4; Davenport 2009, pp. 6– 

7; James 2007, pp. 1–4; Kim 2008, p. 2; 

Roblek 2008a, pp. 1–12; Roblek 2008b, 

p. 1; Wagner 2007, p. 1; Wagner 2008, 

pp. 1–3). As mentioned previously, just 

because deer are observed near water or 

at higher elevations in bighorn habitat 

does preclude the occurrence of 

Peninsular bighorn sheep in the area. 

Comment 69: One commenter stated 

that the proposed critical habitat near 

Interstate 8 lacks permanent sources of 

water (one of the PCEs necessary for 

bighorn sheep survival). The commenter 

stated that the area south of Interstate 8 

proposed for critical habitat does not 

have any sources of permanent water 

that would allow for year-round 

occupancy by bighorn sheep, 

referencing correspondence from U.S. 

Border Patrol Supervisor Palmer as 

evidence. 

The commenter also wrote, ‘‘The area 

proposed for critical habitat south of 

[Interstate 8] lacks adequate escape 

terrain for permanent bighorn sheep 

occupancy. My preliminary GIS analysis 

shows that the escape terrain falls far 

short of the necessary contiguous 15 

square kilometers as defined by 

McKinney et al. (2003) that are needed 

to sustain a bighorn sheep population. 

The suggestion in the proposed rule that 

slopes greater than 20 percent somehow 

qualify as bighorn sheep escape terrain 

is erroneous.’’ 

Our Response: Upon examination of 

the correspondence with the Border 

Patrol that was supplied with the 

commenter’s letter, the correspondence 

mentions a possible permanent water 

source south of Interstate 8, 

approximately one mile from Mountain 

Springs. Additionally, the 

correspondence notes that free-standing 

water was observed in this area from a 

helicopter on November 17, 2008, and 

that the surrounding range appears quite 

dry, which would indicate the water 

source may be ‘‘permanent.’’ Supervisor 

Palmer confirms that under drought 

conditions the springs listed by the 

commenter are typically dry. The 

Service’s surveys throughout the 

Peninsular Ranges have shown that 

many water sources that have 

historically been considered 

‘‘permanent’’ are now frequently dry. As 

Supervisor Palmer mentions in his 

correspondence, many of these water 

sources fill or flow following rains. 

After a rain event the duration of time 

that free-standing water continues to be 

available is highly variable, and sheep 

distribution may reflect variations in 

water persistence. Currently, many 

water sources throughout the Peninsular 

Ranges, including those listed in the 

Jacumba Mountains, are overgrown with 

salt cedar (Tamarix sp.), and in areas 

where managers have removed this 

exotic species, free-standing water has 

often returned. 

Regarding the commenter’s assertions 

about escape terrain, our GIS analysis 

shows there are 3.5 square mi (9 square 

km) of 40 to 60 percent terrain and 1.4 

square mi (3.6 square km) of greater 

than or equal to 60 percent terrain south 

of Interstate 8, for a total of 4.9 square 

mi (12.6 square km). Bighorn sheep in 

the area use the Interstate 8 island and 

the area to the north of the west-bound 

lanes. If these areas are also included, 

there are 6.2 square mi (16.2 square km) 

of 40 to 60 percent terrain and 2.3 

square mi (6.1 square km) of terrain 

greater than or equal to 60 percent for 

a total of 8.6 square mi (22.3 km). 

McKinney et al. (2003, p. 1233) reported 

that 12 of 14 populations of desert 

bighorn sheep persisted, and 8 of the 12 

persisting populations occupied areas 

with greater than 5 square mi (13 km) 

of escape terrain. Therefore, 4 

populations (or a third) persisted with 

greater than 5 square mi (13 km) of 

escape terrain. Consequently, we 

question the commenter’s use of the 

word ‘‘necessary.’’ McKinney et al. 

(2003, p. 1235) offered the 5.8 square mi 

(15 km) figure as a general guideline for 

planning translocations and 

management interventions. Such a 

recommendation highlights the 

importance of escape terrain to bighorn 

sheep, but the number does not 

17312 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

represent an absolute requirement. 

McKinney et al. (2003, p. 1235) showed 

that bighorn sheep populations with 

access to larger areas of escape terrain 

experienced less variability in 

population metrics and a greater 

probability of persistence. In summary, 

we believe there is adequate escape 

terrain in the area to support bighorn 

sheep, as evidenced by their present 

occurrence and re-colonization of the 

area, our GIS analysis, and historical 

accounts. 

We were unable to locate anywhere in 

the proposed rule where areas of 20 

percent slope were described as escape 

terrain for Peninsular bighorn sheep. 

Therefore, we assume the commenter 

was confused by the general description 

of bighorn sheep habitat, which did 

contain the 20 percent figure. Bighorn 

regularly use areas of 20 percent slope 

(and less) to access important resources. 

Escape terrain is one essential 

component of Peninsular bighorn sheep 

habitat, but there are other essential 

components, as listed in the proposed 

revised critical habitat designation. In 

the Peninsular Ranges, Peninsular 

bighorn sheep have frequented areas far 

from classically defined escape terrain 

for extended periods of time. Therefore, 

only conserving the very steepest areas 

is not a viable strategy for ensuring the 

recovery and persistence of bighorn 

sheep in the Peninsular Ranges. 

Comments From Tribes 

Comment 70: The Agua Caliente Band 

of Cahuilla Indians stated that the 

Service should not have designated any 

of their lands as critical habitat in the 

proposed rule in light of the 

relationship between the United States 

and the Tribe as set forth, inter alia, in 

Executive Order 13175 and Secretarial 

Order 3206 and because (1) The 

reservation falls within the Tribe’s 

sovereign jurisdiction, and (2) the land 

within the reservation does not require 

special management considerations or 

protection since it has been and will 

continue to be conserved pursuant to 

the Tribal HCP. The Tribe also believes 

that the benefits of excluding all tribal 

lands within the Tribal HCP Plan Area 

from Units 1 and 2A outweigh the 

benefits of including these lands as 

critical habitat for the bighorn sheep 

based on the balancing requirement of 

section 4(b)(2) of the Act. 16 U.S.C. 

1533(b)(2). 

Our Response: In the proposed rule, 

we did not finalize any designation of 

Agua Caliente Band of Cahuilla Indians 

tribal lands as critical habitat, but 

proposed them as critical habitat, as 

required by our regulations at 50 CFR 

424.19, and concurrently proposed 

those lands for exclusion from critical 

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

We believe the conservation benefits for 

Peninsular bighorn sheep that would 

occur as a result of designating the 4,790 

ac (1,938 ha) in Units 1 and 2A as 

critical habitat (e.g., protection afforded 

through the section 7(a)(2) consultation 

process) are minimal compared to the 

overall conservation benefits for the 

DPS that have been realized through the 

implementation of the 2001 Tribal 

Conservation Strategy and that will 

continue to be realized through the 

Tribe’s ongoing commitment to 

conserve Peninsular bighorn sheep 

habitat. 

Furthermore, the benefits to recovery 

of inclusion of these lands primarily 

have already been met through the 

identification of those areas most 

important to the DPS. By excluding 

these lands from the designation, we are 

honoring our responsibility to work 

with the Tribe on a government-togovernment basis and acknowledging 

the Tribe’s management of its resources, 

and helping to preserve our ongoing 

partnerships with the Tribe and to 

encourage new partnerships with other 

Tribes, landowners, and jurisdictions. 

Those partnerships (and the landscapelevel, multiple-species conservation 

planning efforts they promote) are 

critical for the conservation of 

Peninsular bighorn sheep. Designating 

critical habitat on non-Federal lands 

within the Tribe’s 2001 Tribal 

Conservation Strategy and 2007 draft 

Tribal HCP boundary could have a 

detrimental effect on our partnership 

and could be a significant disincentive 

to the establishment of future 

partnerships and HCPs with other 

Tribes and landowners. Therefore, we 

are excluding all Agua Caliente Band of 

Cahuilla Indians tribal lands from the 

final designation of critical habitat for 

Peninsular bighorn sheep. See our 

response to Comment 2 above and the 

‘‘Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships’’ section of this final rule. 

Comment 71: The Agua Caliente Band 

of Cahuilla Indians believes that the 

proposed rule fails to exclude from 

designation all tribal lands lying inside 

portions of proposed Unit 2A (North 

Santa Rosa Mountains). The Tribe stated 

these off-reservation tribal lands fall 

within the geographic region covered by 

the Tribal HCP, and the Tribal HCP 

includes conservation measures and 

actions that will be of greater benefit to 

the bighorn sheep than designation and 

piecemeal section 7 consultations. The 

Tribe suggested that the benefits of 

excluding these off-reservation tribal 

lands from designation in Unit 2A 

outweigh the benefits of designation, 

thus satisfying the requirements for 

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

the Act. The Tribe also believes that 

contrary to the requirements of the Act, 

Executive Order 13175, and the 

Secretarial Order, the proposed rule 

fails to defer to the Tribe’s own 

established standards, thus discouraging 

the Tribe from developing its own 

policies and intruding on tribal 

management of its lands. Additionally, 

the Tribe believes that designation of 

critical habitat could delay approval of 

the Tribal HCP, thus adding to the costs 

of preparing the Tribal HCP and 

undermining significant protections for 

the bighorn sheep. Finally, the Tribe 

believes that designation of critical 

habitat can be expected to increase the 

amount of time and financial resources 

necessary to undertake covered 

activities described in the Tribal HCP, 

yet it is unlikely to yield material 

benefits for the bighorn sheep. 

Our Response: The Agua Caliente 

Band of Cahuilla Indians is correct in 

that we did not propose their lands 

within Unit 2A for exclusion. At the 

time of the proposed rule, we were not 

aware of tribal ownership in this unit. 

In light of the above comment, we reanalyzed our ownership data for Unit 

2A and found that tribal land exists 

within that unit. In the NOA published 

in the Federal Register on August 26, 

2008 (73 FR 50498), we revised our 

proposed exclusion to include 

approximately 467 ac (189 ha) of tribal 

land in Unit 2A. Furthermore, we are 

excluding all tribal lands from the final 

revised designation of critical habitat for 

Peninsular bighorn sheep as stated 

above in our responses to Comments 2 

and 70, and the ‘‘Application of Section 

4(b)(2)—Other Relevant Impacts— 

Conservation Partnerships’’ section of 

this final rule. 

Comment 72: The Agua Caliente Band 

of Cahuilla Indians agrees with the 

Service insofar as we state that ‘‘fish, 

wildlife, and other natural resources on 

Tribal lands are better managed under 

Tribal authorities, policies, and 

programs than through Federal 

regulation * * *.’’ But the Tribe does 

not believe that it is appropriate to limit 

the preceding statement by adding the 

final phrase ‘‘wherever possible and 

practicable.’’ The Tribe stated that tribal 

sovereignty goes further than precluding 

Federal regulation of reservation lands 

‘‘wherever possible and practicable.’’ 

Our Response: We believe our 

position is consistent with the Act and 

all applicable policies and guidance 

(i.e., Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17313 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2)). 

There were situations in the past, and 

there will continue to be situations in 

the future, where it is necessary to 

designate critical habitat on tribal lands. 

The Service is not prohibited from 

designating critical habitat on tribal 

lands and can only exclude lands 

meeting the definition of critical habitat 

from designation when we can 

demonstrate that the benefits of 

exclusion outweigh the benefits of 

inclusion of such lands and that the 

exclusion will not result in the 

extinction of the species concerned. By 

caveating our position with the 

statement ‘‘wherever possible and 

practicable,’’ we recognize that there 

may be situations where we must 

designate critical habitat on tribal lands. 

We believe that, in most cases, 

designation of tribal lands as critical 

habitat provides very little additional 

benefit to threatened and endangered 

species. Conversely, such designation is 

often viewed by tribes as unwarranted 

and an unwanted intrusion into tribal 

self governance, thus compromising the 

government-to-government relationship 

essential to achieving our mutual goals 

of managing for healthy ecosystems 

upon which the viability of threatened 

and endangered species populations 

depend. 

Comments Related to Critical Habitat 

Designation Process 

Comment 73: One commenter 

believes the public hearing was not 

adequately publicized, as there was no 

notice in a local newspaper. 

Our Response: Public involvement in 

the activities and proposals of the 

Service is very important to us. We 

made every effort to ensure that the 

public was adequately apprised of 

Peninsular bighorn sheep hearings at 

least 15 days prior to the hearings 

occurring. First, in our Federal Register 

notice published on August 26, 2008 (73 

FR 50498), we provided information 

about the date, time, and location of the 

public hearings for the Peninsular 

bighorn sheep proposed revision of 

critical habitat. Second, we issued a 

press release on August 25, 2008, which 

was distributed to more than 100 

stakeholders, including elected officials, 

local governments, species experts, 

interested members of the public, and 

all local media outlets. Third, we posted 

the press release and other information 

about the Peninsular bighorn sheep on 

the Service’s Region 8 Web site. Fourth, 

a copy of the August 26, 2008, Federal 

Register notice was posted on the 

http://www.regulations.gov Web site. 

Finally, announcements of the public 

hearings on September 10, 2008, were 

carried in news stories that published in 

the Riverside Press-Enterprise on 

August 28, 2008, the San Diego UnionTribune on August 29, 2008, and the 

Los Angeles Times on September 2, 

2008. Although legal notices were not 

specifically published in local 

newspapers, such notices are not 

required and we believe that adequate 

notice of the hearings was provided to 

the public in a timely manner through 

a variety of conduits. 

Comments From Other Federal Agencies 

Comment 74: The California Desert 

District of the BLM stated that the 

proposed changes to critical habitat 

affect BLM management of public lands 

within the jurisdiction of their El Centro 

and Palm Springs/South Coast Field 

Offices. The BLM stated they have no 

objections to the revised boundaries of 

critical habitat in the Palm Springs/ 

South Coast Field Office and added that 

they support the use of the best 

available scientific information when 

designating regulatory boundaries such 

as for critical habitat pursuant to the 

Act. The BLM stated that in the El 

Centro Field Office jurisdiction, they 

agree that the revised boundaries near 

the Coyote Mountains that exclude the 

Ocotillo aggregate mining operations 

better reflect the actual use areas for 

bighorn sheep. Additionally, the BLM 

stated that in the Fish Creek Mountains 

the boundary appears to be drawn 

through the existing mining pit of U.S. 

Gypsum Corporation, which is partially 

permitted by BLM. The BLM requested 

that revisions be made at this location 

to exclude the mine. 

Our Response: We determined that 

BLM lands in the Fish Creek Mountains 

contain physical or biological features 

essential to the conservation of 

Peninsular bighorn sheep, and therefore, 

meet the definition of critical habitat 

(see ‘‘Criteria Used To Identify Critical 

Habitat’’ section below). Occurrence 

data used in the delineation of critical 

habitat indicates that areas adjacent to 

the mining pit are utilized by Peninsular 

bighorn sheep. However, we recognize 

that lands within active mining pits do 

not generally provide suitable habitat or 

suitable conditions for this DPS. Thus, 

we are not designating lands in the Fish 

Creek Mountains within the existing 

active mining pit of U.S. Gypsum 

Corporation. When determining the 

critical habitat boundaries within this 

final revised rule, we made every effort 

to avoid including developed areas such 

as lands covered by buildings, 

pavement, active mining pits, and other 

structures because such lands lack 

essential features for the Peninsular 

bighorn sheep. The scale of the maps we 

prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed lands. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

final revised critical habitat are 

excluded by text in this final rule. 

Therefore, a Federal action involving 

these lands would not trigger section 7 

consultation with respect to critical 

habitat and the requirement of no 

adverse modification unless the specific 

action may affect adjacent critical 

habitat. 

Comments From State Agencies 

Comment 75: Two commenters from 

the California Department of Parks and 

Recreation stated that the proposed 

critical habitat does not include 

approximately 249,000 ac (100,767 ha) 

of alluvial-fan habitat previously 

designated as critical habitat, much of 

which is the most important sheep 

habitat in the range in need of 

protection due to threats of housing 

development and golf course projects. 

Our Response: As discussed in our 

responses to Comments 3 and 60 above, 

we agree that low-elevation habitat is 

important for Peninsular bighorn sheep. 

We acknowledge there are some lowelevation areas included in the 2001 

designation of critical habitat that are 

not included this final designation. 

Although we received limited new 

information during the public comment 

period indicating sheep use of lowelevation and low-slope habitat, the 

available data do not indicate that the 

areas of low-elevation and low-slope 

habitat not included in this designation 

meet the definition of critical habitat. 

Please see the ‘‘Criteria Used To Identify 

Critical Habitat,’’ the ‘‘Summary of 

Changes From the 2001 Critical Habitat 

Designation to the 2007 Proposed Rule 

To Revise Critical Habitat,’’ and the 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat to This Final Rule To Revise 

Critical Habitat’’ sections of this final 

rule for further discussion of this topic. 

Comment 76: Two commenters from 

the California Department of Parks and 

Recreation indicated that the proposed 

critical habitat delineation proposes to 

create two areas of metapopulation 

fragmentation: one isolating the San 

17314 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

Jacinto Mountains (Unit 1) and the other 

isolating the Carrizo Canyon (Unit 3) 

population in the south end of the 

range. 

Our Response: As discussed in our 

responses to Comments 1, 6, and 51, the 

best scientific data currently available 

do not support a determination that 

specific areas containing the physical or 

biological features essential to the 

conservation of the Peninsular bighorn 

sheep connect Units 1 and 3 to the 

remainder of the range. Please see the 

‘‘Criteria Used To Identify Critical 

Habitat’’ and ‘‘Summary of Changes 

From the 2001 Critical Habitat 

Designation to the 2007 Proposed Rule 

To Revise Critical Habitat’’ sections of 

this final rule for further discussion. 

Comment 77: Two commenters from 

the California Department of Parks and 

Recreation expressed concern that the 

proposed revision to critical habitat was 

completed without the consultation and 

support of the Peninsular bighorn sheep 

recovery team or any other group of 

biologists with in-depth knowledge of 

bighorn sheep or Peninsular bighorn 

sheep habitat. 

Our Response: We followed the 

appropriate guidance and regulations 

regarding inclusion of expert biologists 

and others during development of this 

critical habitat designation. In 

accordance with our policy on peer 

review, published on July 1, 1994 (59 

FR 34270), we solicited expert opinions 

from five knowledgeable individuals 

(some of which were on the recovery 

team) with scientific expertise that 

included familiarity with the DPS, the 

geographic region in which it occurs, 

and conservation biology principles. 

Furthermore, on May 14, 2007, 

representatives from the Carlsbad Fish 

and Wildlife Office and the Regional 

Office, including the Regional Director, 

met with recovery team members in part 

to inform members that we were 

initiating work to propose revisions to 

designated critical habitat for Peninsular 

bighorn sheep. At that meeting, we 

requested that recovery team members 

submit any data they wanted us to 

consider in our proposed revision. For 

further discussion of this topic, see our 

responses to Comments 11 and 39 

above. 

Comments Related to the Draft 

Economic Analysis 

Comment 78: One commenter asserts 

that in assessing the costs of the 

designation of critical habitat for 

Peninsular bighorn sheep the Service 

must look only at the incremental cost 

of the proposed designation and must 

not consider the costs attributable to 

listing alone when considering 

exclusion of habitat areas. 

Our Response: The U.S. Office of 

Management and Budget’s (OMB) 

guidelines for conducting economic 

analysis of regulations direct Federal 

agencies to measure the costs of a 

regulatory action against a baseline, 

which it defines as the ‘‘best assessment 

of the way the world would look absent 

the proposed action.’’ In other words, 

the baseline includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat. 

Impacts that are incremental to that 

baseline (i.e., occurring over and above 

existing constraints) are attributable to 

the proposed regulation. Significant 

debate has occurred regarding whether 

assessing the impacts of the Service’s 

proposed regulations using this baseline 

approach is appropriate in the context 

of critical habitat designations. 

In order to address the divergent 

opinions of the courts and to provide 

the most complete information to 

decision-makers, the economic analysis 

reports both: (a) The baseline impacts of 

Peninsular bighorn sheep conservation 

from protections afforded the DPS 

absent critical habitat designation; and 

(b) the estimated incremental impacts 

precipitated specifically by the 

designation of critical habitat for the 

species. Summed, these two types of 

impacts comprise the fully co-extensive 

impacts of Peninsular bighorn sheep 

conservation in areas considered for 

critical habitat designation. When 

considering the economic impacts of a 

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

Act, we consider only the incremental 

economic impacts of the proposed 

designation. 

Incremental effects of critical habitat 

designation are determined using the 

Service’s December 9, 2004, interim 

guidance on ‘‘Application of the 

‘Destruction or Adverse Modification’ 

Standard Under Section 7(a)(2) of the 

Endangered Species Act’’ and 

information regarding what potential 

consultations and project modifications 

may potentially occur as a result of 

critical habitat designation over and 

above those associated with the listing. 

In Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service, the 

Ninth Circuit invalidated the Service’s 

regulation defining destruction or 

adverse modification of critical habitat, 

and the Service no longer relies on this 

regulatory definition when analyzing 

whether an action is likely to destroy or 

adversely modify critical habitat. Under 

the statutory provisions of the Act, the 

Service determines destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

to serve its intended conservation role 

for the species. A detailed description of 

the methodology used to define baseline 

and incremental impacts is provided in 

the ‘‘Economic Analysis’’ section of this 

final rule and the DEA. 

Comment 79: One commenter stated 

that the Service should consider both 

the revised designation of critical 

habitat and possible economic 

exclusions together. Additionally, the 

commenter asserted that it is very 

difficult to comment on the impact of 

the critical habitat designation, either 

individually or globally, without an 

understanding of which properties will 

ultimately be included in critical 

habitat. The commenter requested that 

the Service provide an adequate 

comment period for review of the 

economic exclusions. 

Our Response: We are not excluding 

any areas from this final critical habitat 

rule based on economics. Furthermore, 

we fully articulated our proposed 

critical habitat designation and 

presented this proposal to the public in 

the October 10, 2007, proposed rule (73 

FR 57740) and the August 26, 2008 

NOA (73 FR 50498). We opened two 

comment periods to allow the public an 

adequate opportunity to review and 

comment on the proposed critical 

habitat designation and the DEA. The 

first comment period opened October 

10, 2007 (72 FR 57740), and closed 

December 10, 2007, and was associated 

with the publication of the proposed 

revised rule. The second comment 

period opened August 26, 2008 (73 FR 

50498), and closed October 27, 2008, 

and was associated with the notice of 

availability of the DEA, announcement 

of revisions to the proposed critical 

habitat, and a notice of public hearings 

that were held September 10, 2008. 

Comment 80: Several commenters 

suggested that if economics are 

considered in the critical habitat 

designation, then the Service should 

consider the economic impact to desert 

tourism if the Peninsular bighorn sheep 

become extinct. Another commenter 

suggested that the economic impacts of 

potential extinction or reduction in 

population size be considered as they 

relate to the tourism industry. 

Our Response: The commenters’ 

suggestions are outside the realm of 

what we are required to consider when 

evaluating the economic effects of a 

critical habitat designation. The 

economic analysis for Peninsular 

bighorn sheep calculates baseline costs 

associated with listing and the 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17315 

incremental costs of critical habitat 

designation, not the economic effects of 

a potential population decrease or 

extinction. 

Summary of Changes From the 2001 

Critical Habitat Designation to the 2007 

Proposed Rule To Revise Critical 

Habitat 

The areas identified in the October 10, 

2007 (72 FR 57740), proposed revision 

constitute a revision of the areas 

designated as critical habitat for 

Peninsular bighorn sheep on February 1, 

2001 (66 FR 8650). The main differences 

in areas we designated as critical habitat 

for the Peninsular bighorn sheep in 

2001 and areas we proposed as critical 

habitat in the 2007 proposed revision 

include the following: 

(1) We re-evaluated and revised the 

PCEs in light of the Alameda whipsnake 

court case (Homebuilder’s Ass’n of 

Northern Cal. v. U.S. Fish and Wildlife 

Service, 268 F. Supp.2d 1197 (E.D. Cal. 

2003)) and other relevant case law, and 

followed current Service guidelines and 

policies. The PCEs differ from those in 

the 2001 critical habitat rule in that they 

are reorganized into five separate PCEs 

for clarity. Furthermore, we added 

specific information on elevational 

range, plant species used for foraging, 

and range of slopes required by the DPS. 

This additional specificity was gained 

by evaluating the Recovery Plan and 

examining all recent sheep information, 

including data from radio collars and 

GPS collars providing precision to the 

identification of habitats used and 

preferred by Peninsular bighorn sheep. 

Applying the more precise PCEs to the 

mountain ranges inhabited by 

Peninsular bighorn sheep allowed us to 

fine tune the proposed revision to those 

areas containing preferred habitat for 

sheep use and remove those areas that 

we have determined, based on the best 

scientific data currently available, do 

not meet the definition of critical habitat 

for the Peninsular bighorn sheep. For 

example, the 2001 final rule included 

high elevation (above 4,600 ft (1,402 

m)), densely vegetated, and forested 

habitat that we now believe to be 

inappropriate for sheep use in the San 

Jacinto, Santa Rosa, and Vallecito 

Mountains, based on the new 

information. 

(2) The 2001 final rule used a 

generalized methodology for delineating 

critical habitat that resulted in the 

designation of one critical habitat unit 

for Peninsular bighorn sheep totaling 

844,897 ac (341,919 ha) (February 1, 

2001, 66 FR 8650). The proposed 

revision was based on a more specific 

methodology utilizing more current and 

robust data that resulted in three critical 

habitat units including approximately 

384,410 ac (155,564 ha) of land in 

Riverside, San Diego, and Imperial 

Counties, California, a reduction of 

460,487 ac (186,355 ha) from the 2001 

final rule (February 1, 2001, 66 FR 

8650). The areas included in the 

proposed revised critical habitat were 

almost entirely within the boundaries of 

the existing (2001) critical habitat. 

Approximately 72 ac (29 ha) of BLM 

land in Unit 3 were outside the 

boundary of the 2001 critical habitat. 

The reduction in total area from the 

2001 final critical habitat designation 

was primarily the result of using the 

revised criteria to delineate critical 

habitat. In our 2001 final critical habitat 

designation, we delineated critical 

habitat based on the methodology used 

in the Recovery Plan for Bighorn Sheep 

in the Peninsular Ranges, California 

(Service 2000). In developing the 2007 

proposed revision, we reexamined the 

methodology outlined in the 2000 

Recovery Plan and the 2001 critical 

habitat designation, and updated that 

methodology based on the best available 

information (including more specific 

habitat information and additional 

occurrence data) to identify areas that 

meet the definition of critical habitat 

(see ‘‘Criteria Used To Identify Critical 

Habitat’’ section). Upon reevaluation of 

the data available at the time of the 2001 

critical habitat designation, data 

obtained since, and our revised 

methodology for delineating critical 

habitat, we have determined that some 

areas (e.g., potential connectivity areas 

and low-elevation areas, and other 

expanses described below) included in 

the 2001 designation do not meet the 

definition of critical habitat because the 

available data we have for these specific 

areas do not support such a 

determination. 

Potential connectivity areas were 

included in the 2001 designation 

because they were thought to allow 

sheep movement between ewe 

subpopulations and maintain genetic 

diversity in the metapopulation; 

however, the 2001 designation was 

overly broad and generalized, and the 

current available data do not support a 

determination that specific areas 

between Units 1 and 2A and Units 2B 

and 3 contain the physical or biological 

features essential to the conservation of 

the DPS. We have radio collar data of 

two individual rams indicating the rams 

spent time in both Unit 1 and Unit 2A 

and that both animals must have 

traveled through intervening habitat 

between these units. One ram traveled 

between the units multiple times 

between 1993–1996, while the other 

ram traveled between the units once in 

2003. However, we do not have radio 

collar data of these rams in the 

intervening habitat. These data suggest 

that when traveling, the rams travel 

quickly and likely do not spend much 

time in the intervening habitat, 

otherwise animals likely would have 

been detected in those areas. The 

available data showing rams traveling in 

the intervening habitat between Unit 1 

and Unit 2A do not support the 

delineation of a migratory route between 

these units. Likewise, the available data 

do not support the accurate 

identification of specific areas used by 

the Peninsular bighorn sheep as 

potential corridors connecting Unit 3 to 

the remainder of the range. 

Based on the current available 

scientific data, we have determined that 

some areas of low-elevation habitat, 

including alluvial fans and washes, that 

were included in the 2001 designation 

because of the seasonal abundance of 

potential resources in those areas do not 

meet the definition of critical habitat. 

Based on our evaluation of the available 

information indicating a lack of current 

or historical Peninsular bighorn sheep 

use in these areas, we have determined 

that these specific areas are not essential 

for the conservation of the DPS (see 

‘‘Criteria Used to Identify Critical 

Habitat’’ section). Additionally, like our 

methodology for the 2007 proposed 

revision, the 2001 methodology used a 

minimum slope criterion of 20 percent 

to delineate essential habitat; however, 

a 0.5 mi (0.8 km) buffer was included 

around slopes of greater than or equal to 

20 percent (Service 2000, p. 158). This 

contributed to the inclusion of expanses 

of unoccupied low-elevation habitat in 

the 2001 designation that we have 

determined are not essential for the 

conservation of the DPS (see ‘‘Criteria 

Used to Identify Critical Habitat’’ 

section). The 2007 proposed rule did 

not include a buffer zone area around 

habitat determined to be essential to the 

DPS. 

Little consideration was given to the 

distribution of occurrence data and 

specific ewe group distributions in the 

methodology used to delineate the 2001 

critical habitat boundary. This resulted 

in expanses of critical habitat (in 

addition to the potential connectivity 

areas and low-elevation habitat) in the 

2001 designation in which we had little 

to no occurrence records that would 

indicate sheep use those areas. For 

example, we had occupancy data dating 

back to 1940, yet extensive areas along 

the length of the Peninsular Ranges 

within the boundary of the 2001 

designation contained little to no data 

that would support those areas as 

meeting the definition of critical habitat. 

17316 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

In general, some of the main areas 

previously designated as critical habitat 

that we have now determined are not 

essential for the conservation of the DPS 

include the following: The northern and 

western most portions of the San Jacinto 

Mountains; the western and eastern 

most portions of the Santa Rosa 

Mountains; and portions of the Pinyon, 

Sawtooth, In-Ko-Pah, Fish Creek, and 

Coyote mountains. 

The Recovery Plan generally used two 

criteria, the presence of escape terrain 

and unobstructed view, as key habitat 

requirements when delineating 

boundaries of the areas essential to 

Peninsular bighorn sheep with little 

consideration of the presence of the 

PCEs required by this DPS. In the 2007 

proposed revision, we considered all 

five of the revised PCEs in delineating 

proposed revised critical habitat 

boundaries, which results in a more 

precise determination of essential 

habitat (see ‘‘Primary Constituent 

Elements for the Peninsular Bighorn 

Sheep’’ and ‘‘Criteria Used to Identify 

Critical Habitat’’ sections). Because a 

detailed vegetation map was not 

available at the time of the Recovery 

Plan, a team of biologists flew the entire 

western boundary in a helicopter and 

visually assessed vegetation associations 

(Service 2000, p. 159). The western 

boundary was determined by consensus 

and recorded by GPS from the 

helicopter position every ten seconds 

(Service 2000, p. 159). A 0.5 mi (0.8 km) 

buffer was added to this line to account 

for the advent of fire suppression 

(Service 2000, p. 160). This method 

delineated a general approximation of 

Peninsular bighorn sheep habitat and 

resulted in an overbroad designation of 

critical habitat in these areas. In 

determining the western boundary of 

essential habitat in the 2007 proposed 

revision, we used recent vegetation 

maps that cover the entire range of the 

Peninsular bighorn sheep, along with 

detailed recent aerial photography, 

expert opinion, and sheep use data to 

delineate boundaries, which we 

determined more precisely captures the 

areas on which are found the physical 

or biological features essential to the 

DPS. 

In summary, the recent data and 

methodology considered and used in 

the 2007 proposed revision and this 

final rule more accurately delineates the 

specific areas of Peninsular bighorn 

sheep habitat that meet the definition of 

critical habitat. The methods used in the 

2000 Recovery Plan and the 2001 

critical habitat designation resulted in a 

more inclusive delineation of essential 

habitat due to limited data. Application 

of the revised methodology, based on 

the best available information, 

identified 460,487 ac (186,355 ha) of 

previously designated critical habitat 

that do not meet the definition of 

critical habitat, and therefore we are not 

including these areas in this final 

revised critical habitat designation. 

(3) Approximately 29,924 ac (12,110 

ha) of designated critical habitat were 

vacated in the July 31, 2006, consent 

decree. A portion of those acres were 

within the 2007 proposed revised 

critical habitat. Of the 13,213 ac (5,347 

ha) of vacated Agua Caliente Band of 

Cahuilla Indians tribal lands, 

approximately 4,512 ac (1,826 ha) were 

included in the 2007 proposed revision. 

However, in our proposed revision we 

proposed to exclude all tribal lands 

from the final designation. 

Approximately 16,691 ac (6,756 ha) of 

mining lands at Ocotillo Mineral 

Material Sites and Fish Canyon Quarry 

property were also vacated. In the 2007 

proposed revision to critical habitat, we 

included roughly 50 percent of those 

vacated lands; specifically, we included 

lands along the northernmost portion of 

the Ocotillo Mineral Material Sites 

property and the middle to southern 

portion of the Fish Canyon Quarry 

property. Both of these mining 

properties contained actively mined 

lands, but also contained areas in which 

we have recent documented use by 

Peninsular bighorn sheep and areas that 

meet the criteria used to identify critical 

habitat. The Desert Riders lands vacated 

in the consent decree (approximately 20 

ac (8 ha)) were not included in the 

proposed revision. 

Our 2001 final critical habitat rule 

included the statement that ‘‘* * * we 

are not aware of any information 

suggesting that particular areas within 

designated critical habitat are currently 

unsuitable or unused over the 

generational timeframe needed for the 

long-term conservation of bighorn sheep 

in the Peninsular Ranges’’ (February 1, 

2001, 66 FR 8655). However, we 

reconsidered the information that was 

available to us at the time of the 2001 

designation in light of additional 

information currently available to us. 

We determined that the methodology 

used in the 2007 proposed revision (and 

this final rule), which utilized the best 

available information, provides a more 

accurate delineation of the specific areas 

that meet the definition of critical 

habitat for the Peninsular bighorn sheep 

than that relied upon in the 2001 critical 

habitat designation (see ‘‘Criteria Used 

to Identify Critical Habitat’’ section). 

Table 1 below outlines the changes in 

areas in each unit between the 2001 

final critical habitat rule, the 2007 

proposed revised critical habitat rule, 

and this 2009 final revised critical 

habitat rule for Peninsular bighorn 

sheep. Table 2 provides the approximate 

area determined to meet the definition 

of critical habitat for Peninsular bighorn 

sheep in the 2007 proposed rule, areas 

added to the proposed rule announced 

in the NOA published in the Federal 

Register on August 26, 2008, areas 

excluded from the final revised critical 

habitat designation under section 4(b)(2) 

of the Act (please see ‘‘Exclusions 

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

detailed discussion), and areas being 

designated as final revised critical 

habitat. 

TABLE 1—CHANGES BETWEEN THE FEBRUARY 1, 2001 (66 FR 8650), CRITICAL HABITAT DESIGNATION, THE

OCTOBER 10, 2007 (72 FR 57740), PROPOSED DESIGNATION, AND THIS FINAL REVISED DESIGNATION. 

Critical habitat unit in this 

final rule County 

2001 designation of 

critical habitat 

(66 FR 8650) and ac (ha) 

2007 Proposed revision to 

the critical habitat 

designation 

(72 FR 57740) 

and ac (ha) 

2009 Final revised critical 

habitat designation 

and ac (ha) 

1. San Jacinto Mts. ........ Riverside ..................... Included as part of one large 

unit; 844,897 ac (341,919 

ha).

Included as Unit 1; 15,273 

ac (6,180 ha).

Included as Unit 1; 4,597 ac 

(1,860 ha). 

2A. N. Santa Rosa Mts. Riverside ..................... ......do ................................... Included as Unit 2A; 74,998 

ac (30,350 ha).

Included as Unit 2A; 45,100 

ac (18,251 ha). 

2B. S. Santa Rosa Mts. 

south to Vallecito Mts..

Riverside, San Diego, 

Imperial.

......do ................................... Included as Unit 2B; 226,211 

ac (91,545 ha).

Included as Unit 2B; 248,021 

ac (100,371 ha). 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17317 

TABLE 1—CHANGES BETWEEN THE FEBRUARY 1, 2001 (66 FR 8650), CRITICAL HABITAT DESIGNATION, THE

OCTOBER 10, 2007 (72 FR 57740), PROPOSED DESIGNATION, AND THIS FINAL REVISED DESIGNATION. 

Critical habitat unit in this 

final rule County 

2001 designation of 

critical habitat 

(66 FR 8650) and ac (ha) 

2007 Proposed revision to 

the critical habitat 

designation 

(72 FR 57740) 

and ac (ha) 

2009 Final revised critical 

habitat designation 

and ac (ha) 

3. Carrizo Canyon .......... San Diego, Imperial .... ......do ................................... Included as Unit 3; 67,928 

ac (27,489 ha).

Included as Unit 3; 79,220 

ac (32,059 ha). 

Totals ...................... ..................................... 844,897 ac ...........................

(341,919 ha) .........................

384,410 ac ...........................

(155,564 ha) .........................

376,938 ac. 

(152,542 ha). 

Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat to This Final Rule To Revise 

Critical Habitat 

The areas identified in this final 

revised rule constitute a revision of the 

areas we proposed to designate as 

critical habitat for Peninsular bighorn 

sheep on October 10, 2007 (72 FR 

57740). In light of substantial public 

comments and a revision of our criteria 

used to identify critical habitat, we 

reevaluated and included in this final 

rule three general areas that were not 

included in the 2007 proposed rule. 

These additions (described below) were 

announced in the NOA published in the 

Federal Register on August 26, 2008, 

(73 FR 50498), and include the 

following: Areas along the eastern edge 

of the Santa Rosa Mountains in Units 

2A and 2B; parts of the San Ysidro, 

Pinyon, and Vallecito Mountains in 

Unit 2B; and a portion of the Jacumba 

Mountains in Unit 3 (approximately 

36,240 ac (14,666 ha)). The reduction in 

total area from the 2007 proposed 

critical habitat designation is primarily 

the result of habitat exclusions under 

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

below). The main differences between 

the 2007 proposed critical habitat rule 

and this final rule include the following: 

(1) During the first and second 

comment periods for the proposed rule, 

we received significant comments from 

the public, including biologists familiar 

with Peninsular bighorn sheep, which 

led us to reevaluate and revise our 

criteria used to identify critical habitat. 

Please see the ‘‘Changes to Proposed 

Revised Critical Habitat’’ section of the 

August 26, 2008, NOA (73 FR 50498), 

and the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this final 

rule for more information on our revised 

criteria. 

(2) During the first and second 

comment periods for the proposed rule, 

we received significant comments from 

the public, including biologists familiar 

with Peninsular bighorn sheep, on areas 

essential to the DPS that should be 

included in the designation. As a result 

of these comments, new information 

received, and revision of the criteria 

used to identify critical habitat, we 

reevaluated the following: Areas along 

the eastern edge of the Santa Rosa 

Mountains in Units 2A and 2B; parts of 

the San Ysidro, Pinyon, and Vallecito 

Mountains in Unit 2B; and a portion of 

the Jacumba Mountains in Unit 3. Over 

98 percent of these areas are currently 

designated as critical habitat for 

Peninsular bighorn sheep (see 50 CFR 

17.95(a); February 1, 2001, 66 FR 8650); 

however, we did not propose these areas 

as critical habitat in the October 10, 

2007, proposed revision to critical 

habitat (72 FR 57740). Below we 

describe each area we reevaluated, 

explain why we did not include the 

areas in the 2007 proposed rule, and 

explain why we are including these 

areas in the final revised critical habitat 

designation. 

Eastern Edge of the Santa Rosa 

Mountains 

The eastern edge of the Santa Rosa 

Mountains stretches along developed 

and agricultural areas of the Coachella 

Valley from Palm Desert southeast to the 

Salton Sea. Along this interface, sheep 

currently exist near areas of high human 

activity where habitat is threatened by 

spreading development. We delineated 

proposed revised critical habitat along 

the eastern slope of the Santa Rosa 

Mountains where occurrence data 

supported a determination that these 

areas contained the physical or 

biological features essential to the 

conservation of the DPS, in some cases 

immediately adjacent to the edge of 

development and the existing critical 

habitat boundary (66 FR 8650, February 

1, 2001). The eastern edge of the Santa 

Rosa Mountains contains low-elevation 

alluvial-fan habitat that may be 

important to Peninsular bighorn sheep. 

Therefore, we included low-elevation 

alluvial-fan habitat in the proposed 

revised designation in cases where 

occurrence data indicated sheep are 

using these areas. However, large 

expanses of currently designated critical 

habitat (2001) lack occurrence data to 

indicate current or historical use by 

sheep of those areas, including some 

low-elevation alluvial habitat. As such, 

we did not include all currently 

designated critical habitat along the 

eastern edge of the Santa Rosa 

Mountains in the proposed revised 

critical habitat designation. 

During the first public comment 

period, we received a number of 

comments from biologists familiar with 

Peninsular bighorn sheep that included 

additional information regarding the 

importance of low-elevation and 

alluvial-fan habitat along the eastern 

edge of the Santa Rosa Mountains. We 

also received a limited amount of 

recently collected occurrence data in 

wash areas along the eastern edge of the 

south Santa Rosa Mountains. 

Additionally, we received comments 

from Peninsular bighorn sheep 

biologists indicating that our 

consideration of data since the time of 

listing (1998 to present) was inadequate. 

We then revised our criteria used to 

identify critical habitat to include 

occurrence data since 1988 (an 

additional 10 years of data from what 

we considered in the proposed rule). 

In light of the additional information 

received and the revision of our criteria 

used to identify critical habitat, we 

reevaluated and revised our proposed 

revised critical habitat boundary along 

the eastern edge of the Santa Rosa 

Mountains. We believe that lowelevation habitat is important for 

Peninsular bighorn sheep because these 

areas can provide seasonal abundance of 

forage vegetation and water resources. 

Where occurrence data indicated sheep 

use, we revised our proposed revision of 

critical habitat to include four 

additional areas along the eastern edge 

of the Santa Rosa Mountains. These 

areas include approximately 32 ac (13 

ha) in two parcels along the urban 

interface between the cities of Cathedral 

City and Palm Desert in Unit 2A; 3,009 

ac (1,218 ha) on and around Indio 

Mountain in Unit 2A; and 7,477 ac 

17318 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(3,026 ha) of low-elevation and wash 

habitat to the east of the southernmost 

portion of the Santa Rosa Mountains in 

Unit 2B. 

Approximately 99 percent of these 

areas are currently designated as critical 

habitat (66 FR 8650, February 1, 2001); 

an approximately 77-ac (31-ha) parcel 

and a 3-ac (1-ha) parcel located near 

Palm Desert are outside of the area 

currently designated as critical habitat. 

Because we determined that these areas 

contain the features essential to the 

conservation of the DPS, providing 

seasonal abundance of forage vegetation 

and water resources, we are including 

approximately 10,518 ac (4,257 ha) 

along the eastern edge of the Santa Rosa 

Mountains in the final revised critical 

habitat designation for Units 2A and 2B. 

San Ysidro, Pinyon, and Vallecito 

Mountains 

The San Ysidro, Pinyon, and Vallecito 

Mountains roughly comprise the middle 

portion of the Peninsular bighorn sheep 

range in the United States. We included 

the majority of these mountains in the 

October 2007 proposed rule to revise 

critical habitat (October 10, 2007, 72 FR 

57740). Although the areas were 

included in the existing critical habitat 

designation, we did not include some 

extreme western portions of the San 

Ysidro and Pinyon Mountains and the 

northeastern edge of the Vallecito 

Mountains in the proposed rule to 

revise critical habitat because we 

determined those areas did not meet the 

definition of critical habitat. 

During the first public comment 

period, we received comments from 

several species experts who are 

currently studying the Peninsular 

bighorn sheep indicating that we did 

not consider a number of areas along the 

western San Ysidro and Pinyon 

Mountains and the northeastern edge of 

the Vallecito Mountains that are known 

to be occupied. The commenters 

indicated that we were provided 

occurrence data that indicated 

occupancy of these areas by bighorn 

sheep prior to publication of the 

October 10, 2007, proposed rule (72 FR 

57740). Upon receiving these comments, 

we examined the occurrence data used 

to delineate the proposed revised 

critical habitat boundary and found that 

a set of data was missing from our GIS 

database. We have since included that 

occurrence data into our GIS database. 

In light of this data and our revised 

criteria used to identify critical habitat 

to include data since 1988, we 

reevaluated the western San Ysidro and 

Pinyon Mountains and the northeastern 

edge of the Vallecito Mountains and 

determined that certain areas do meet 

the definition of critical habitat. We 

revised our proposed designation of 

critical habitat to include approximately 

6,503 ac (2,632 ha) in five areas along 

the western San Ysidro Mountains, 

5,176 ac (2,095 ha) in the western 

Pinyon Mountains, and 2,751 ac (1,113 

ha) along the northeastern edge of the 

Vallecito Mountains (all in Unit 2B). 

Approximately 97 percent of these areas 

are currently designated as critical 

habitat (February 1, 2001, 66 FR 8650). 

An approximately 53 ac (21 ha) parcel 

located near Parks Canyon and an 

approximately 360 ac (146 ha) parcel 

located in the San Ysidro Mountains 

west of Borrego Springs are outside of 

the area currently designated as critical 

habitat. We are including the 

approximately 14,430 ac (5,840 ha) 

along the San Ysidro, Pinyon, and 

Vallecito Mountains in the final revised 

critical habitat designation for Unit 2B. 

Jacumba Mountains 

The Jacumba Mountains represent the 

southernmost portion of the Peninsular 

Ranges in the United States, and the 

southernmost extent of Peninsular 

bighorn sheep’s extant range in the 

United States. Part of the Jacumba 

Mountains were included in the 2007 

proposed revised critical habitat 

designation, including an area known as 

the Interstate 8 ‘‘island’’ where there 

were multiple sheep sightings from 

2008. However, we had limited data at 

the time of the proposed critical habitat 

rule indicating occupancy or sheep use 

in the rest of the southeast Jacumba 

Mountains and the rugged terrain 

extending east and south to the U.S.- 

Mexico border. Therefore, we included 

a small amount of the currently 

designated critical habitat just north of 

the U.S.-Mexico border in Imperial 

County in the October 10, 2007, 

proposed revision to critical habitat (72 

FR 57740). 

Since the proposed revised critical 

habitat designation was published, there 

have been additional sightings and 

reports of sheep activity around and 

within the Interstate 8 island, including 

suitable habitat areas that extend south 

to the U.S.-Mexico border. Data recently 

collected by Service biologists and other 

biologists familiar with the DPS include 

actual sightings of multiple sheep and 

reports of sheep scat and tracks 

throughout the area, indicating that this 

area is currently occupied by a group of 

Peninsular bighorn sheep. This area 

contains rugged habitat with the 

features essential to Peninsular bighorn 

sheep conservation and is contiguous 

with habitat in Mexico. Additionally, 

the Jacumba Mountains represent the 

only area of habitat connecting the DPS 

listed in the United States with other 

bighorn sheep populations that occupy 

the Peninsular Ranges in Mexico. 

Therefore, we revised our proposed 

designation of critical habitat for 

Peninsular bighorn sheep to include 

approximately 11,292 ac (4,570 ha) of 

habitat in the Jacumba Mountains (Unit 

3), which is currently designated as 

critical habitat (February 1, 2001, 66 FR 

8650). This revision was based on recent 

occurrence data and the need to be 

consistent with the critical habitat 

delineation process we used that 

includes areas of repeated sheep use. 

In total, we added approximately 

36,240 ac (14,666 ha) of private, Federal, 

and State land to the October 10, 2007, 

proposed revised critical habitat 

designation (72 FR 57740) for 

Peninsular bighorn sheep (Table 1). 

(3) While reevaluating the boundaries 

of the proposed revised critical habitat 

designation as described above, we 

noticed three areas of high-elevation 

habitat above 4,600 ft (1,400 m) that did 

not accurately follow the boundaries of 

the essential features and do not contain 

suitable habitat. Therefore, we removed 

approximately 66 ac (28 ha) in proposed 

Unit 1 and two parcels totaling 

approximately 97 ac (39 ha) in proposed 

Unit 2B from the October 10, 2007, 

proposed revision to critical habitat (72 

FR 57740) for the Peninsular bighorn 

sheep (Table 1) and are not including 

these areas in the final revised critical 

habitat designation. 

(4) Based on revised ownership data, 

we announced changes in the August 

26, 2008, NOA (73 FR 50498) to the 

areas considered for exclusion from that 

which we stated in the 2007 proposed 

critical habitat rule. With the changes 

announced in the NOA, the proposed 

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

Act for Agua Caliente Band of Cahuilla 

Indians lands totaled approximately 

4,790 ac (1,938 ha). We determined that 

the benefits of exclusion outweigh the 

benefits of inclusion on these lands; 

therefore, we excluded approximately 

4,790 ac (1,938 ha) of Agua Caliente 

Band of Cahuilla Indians tribal lands in 

Units 1 and 2 under section 4(b)(2) of 

the Act (see ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule for a detailed discussion). 

(5) In the proposed rule, we 

announced that we were considering the 

exclusion of lands covered under the 

then-draft Coachella Valley MSHCP 

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

Coachella Valley MSHCP has since been 

finalized, and we determined that the 

benefits of exclusion outweigh the 

benefits of inclusion on these lands; 

therefore, we excluded approximately 

38,759 ac (15,685 ha) of private and 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17319 

permittee-owned or controlled lands 

within the Coachella Valley MSHCP 

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

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

Act’’ section of this final rule for a 

detailed discussion). 

As a result of the above additions to 

the 2007 proposed revised critical 

habitat designation, removal of areas 

included in the 2007 proposed revised 

critical habitat designation, and 

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

Act, we are designating approximately 

376,938 ac (152,542 ha) of land in 

Riverside, San Diego, and Imperial 

Counties as critical habitat in this final 

rule. 

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 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(ii) specific areas outside the 

geographical area occupied by a species 

at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, 

transplantation, and in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot otherwise be relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

requests Federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) would apply, but even in the 

event of a destruction or adverse 

modification finding, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, habitat within the 

geographical area occupied by the 

species at the time it was listed must 

contain the physical and biological 

features that are essential to the 

conservation of a species, and be 

included only if those features may 

require special management 

considerations or protection. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life-cycle needs of the species 

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

primary constituent elements laid out in 

the appropriate quantity and spatial 

arrangement essential to the 

conservation of the species). 

Under the Act, we can designate an 

area outside the geographical area 

occupied by the species at the time of 

listing as critical habitat only when we 

determine that the best available 

scientific data demonstrate that the 

designation of that area is essential for 

the conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. 

Further, our Policy on Information 

Standards Under the Endangered 

Species Act (published in the Federal 

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

the Information Quality Act (section 515 

of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that we 

may eventually determine, based on 

scientific data not now available to the 

Service, are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not be required for recovery of the 

species. 

Areas that support populations, but 

are outside the critical habitat 

designations, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act. They 

are also subject to the regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard, as determined 

on the basis of the best available 

scientific information at the time of the 

Federal agency action. Federally funded 

or permitted projects affecting listed 

species outside their designated critical 

habitat areas may still result in jeopardy 

findings in some cases. Similarly, 

critical habitat designations made on the 

basis of the best available information at 

the time of designation will not control 

the direction and substance of future 

recovery plans, habitat conservation 

plans (HCPs), or other species 

conservation planning efforts if 

information available at the time of 

these planning efforts calls for a 

different outcome. 

Primary Constituent Elements (PCEs) 

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

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical and biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection to be the PCEs laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the species. These 

include, but are not limited to: 

17320 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We derived the specific PCEs required 

for Peninsular bighorn sheep from its 

biological needs as described below and 

in the proposed rule to revise critical 

habitat published in the Federal 

Register on October 10, 2007 (72 FR 

57740). Additionally, information can 

be found in the final listing rule 

published in the Federal Register on 

March 18, 1998 (63 FR 13134), and in 

the original final critical habitat rule 

published in the Federal Register on 

February 1, 2001 (66 FR 8650). 

Space for Individual and Population 

Growth and Normal Behavior 

Peninsular bighorn sheep occur on 

moderately steep to very steep open 

slopes, canyons, and washes in hot and 

dry desert regions where the land is 

rough and rocky, and sparsely vegetated 

(February 1, 2001, 66 FR 8650). This 

DPS is primarily restricted to the eastfacing lower elevation slopes (generally 

below 4,600 ft (1,400 m)) of the 

Peninsular Ranges along the 

northwestern edge of the Sonoran Desert 

(Jorgensen and Turner 1975, p. 51; 

DeForge et al. 1997, p. 11; Rubin et al. 

1998, p. 541; Ernest et al. 2002, p. 76). 

A wide range of topography provides a 

diversity of habitats and plant 

communities across the mountainous 

slopes, canyons, washes, and alluvial 

fans within the home range of 

Peninsular bighorn sheep (Service 2000, 

p. 156). This diverse topography is 

necessary to provide shelter from the 

elements and predators, areas for 

rearing, areas used to meet thermal 

requirements, seasonal water and forage 

sources, and space for mating and 

movement of this DPS. 

Diverse topographic features are 

especially important because of the 

extreme temperatures Peninsular 

bighorn sheep must cope with in this 

desert region. During hot weather, 

desert bighorn sheep seek shade under 

boulders and cliffs, or move to northfacing slopes (Merritt 1974, p. 14; 

Andrew 1994, p. 52). In the event of 

inclement weather they may seek 

protected caves or overhangs, move to 

sunny, south-facing slopes (Andrew 

1994, p. 52), or move to slopes that are 

protected from strong winds. Desert 

bighorn sheep are frequently found on, 

and show a preference for slopes greater 

than 20 percent (Elenowitz 1983, p. 87; 

Andrew 1994, p. 53; Dunn 1996, p. 5; 

Andrew and Bleich 1999, p. 13), and 

our GIS data and occurrence records 

confirm this observation for Peninsular 

bighorn sheep. According to GIS data 

and occurrence records, Peninsular 

bighorn sheep largely utilize habitat 

with 20 to 60 percent slopes, broken by 

canyons and washes. Nighttime bedding 

areas are chosen carefully according to 

the topography of the habitat and may 

be considered a limiting factor in 

bighorn sheep distribution (Hansen 

1980, p. 78). These bedding areas are 

usually located along ridges and spurs 

with long distance visibility where 

bighorn sheep can escape, if necessary, 

in a matter of seconds (Hansen 1980, p. 

78). 

Bighorn sheep primarily rely on their 

sense of sight to detect predators. They 

prefer the lower elevations of the 

Peninsular Ranges where the vegetation 

associations are less dense and provide 

better visibility than those at higher 

elevations. Research shows that bighorn 

sheep will avoid habitat where dense 

vegetation reduces visibility and instead 

prefer to use habitat with vegetative 

canopy cover less than or equal to 30 

percent (Risenhoover and Bailey 1985, 

p. 799; Etchberger et al. 1989, p. 906; 

Dunn 1996, p. 1). Bighorn sheep in the 

Peninsular Ranges avoid higher 

elevations (above 4,600 ft (1,400 m)), 

likely due to decreased visibility (and 

therefore increased predation risk) 

associated with denser vegetation (i.e., 

chaparral and conifer woodland) found 

at higher elevations (Service 2000, p. 

10). 

Along with occupying open habitat, 

bighorn sheep use steep, rugged terrain 

for predator evasion (Service 2000, p. 6). 

Bighorn sheep use their climbing 

abilities rather than speed to escape 

from predators, and mountainous slopes 

of greater than or equal to 60 percent 

(i.e., escape habitat) are steep enough to 

provide this function (Andrew 1994, p. 

57; Dunn 1996, p. 1; Service 2000, p. 6; 

McKinney et al. 2003, p. 1231). 

Steep escape habitat is also used for 

lambing (Service 2000, p. 6). As 

parturition approaches, ewes seek 

isolated sites (escape terrain with slopes 

60 percent or greater) with shelter and 

unobstructed views (Turner and Hansen 

1980, p. 148), and seclude themselves 

from other females while finding sites to 

give birth (Geist 1971, p. 239; Etchberger 

and Krausman 1999, p. 358). Ewes 

usually give birth to one lamb born after 

an approximately 6-month gestation 

period (Geist 1971, p. 239; Turner and 

Hansen 1980, p. 146). These areas of 

steep terrain are vital to Peninsular 

bighorn sheep because lambs have 

increased vulnerability to predation, 

and these protective slopes are rarely 

visited by predators (Geist 1971, p. 239). 

Ewe groups with lambs usually stay 

close to escape terrain while feeding on 

lower gradient slopes. Berger (1991, 

p. 72) reported that when feeding on 

bajadas or away from escape terrain, 

ewes and lambs were greater than three 

times more vulnerable to predation. 

Predators of Peninsular bighorn sheep 

include mountain lion, bobcat, coyote, 

and domestic dogs (Hayes et al. 2000, p. 

954; February 1, 2001, 66 FR 8650). 

Metapopulation Structure 

Within desert mountain ranges like 

the Peninsular Ranges, bighorn sheep 

habitat is patchy, and the population 

structure is naturally fragmented (Bleich 

et al. 1990, p. 384). This fragmentation 

leads to the application of a broad 

landscape approach to their population 

ecology, grouping geographically 

distinct herds into metapopulations, 

which are networks of interacting ewe 

groups or subpopulations (Schwartz et 

al. 1986, pp. 182–183; Bleich et al. 1990, 

p. 386). This broad approach considers 

long-term viability not of individual 

subpopulations, but rather of entire 

metapopulations; thus, both genetic and 

demographic factors are considered. 

Decreasing population sizes can lead to 

decreasing levels of heterozygosity that 

may have negative demographic effects 

through inbreeding depression (Lande 

1988, p. 1,456) and loss of adaptability. 

A small amount of genetic exchange 

among herds by movements of males 

can counteract inbreeding and 

associated increases in homozygosity 

that might otherwise develop within 

small, isolated populations (Schwartz et 

al. 1986, p. 185). Males have larger 

home ranges and a much greater 

tendency than females to explore new 

areas, which they may do in search of 

females during the mating season. 

Movement by males occurs readily if no 

insurmountable barriers exist and 

geographic distances between female 

groups within metapopulations are not 

extreme (greater than 31 mi 50 km 

(Witham and Smith 1979, p. 24). If 

movement is precluded by humanconstructed obstacles, populations will 

become isolated and the metapopulation 

structure dismantled. 

A study of Peninsular bighorn sheep 

distribution and abundance by Rubin et 

al. (1998, p. 545) concludes that ewes 

exhibit a fragmented distribution within 

the Peninsular Ranges, making up at 

least eight ewe groups or 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17321 

subpopulations. Although the 

distribution of these ewe groups could 

be considered naturally fragmented, 

construction and use of roads through 

bighorn sheep habitat may have 

increased fragmentation within the 

Peninsular Ranges because ewes avoid 

crossing highways (Rubin et al. 1998, p. 

547). Ewes show strong gregarious and 

philopatric behavior (i.e., faithful to 

natal home range), which limits their 

dispersal abilities (Boyce et al. 1999, p. 

99; Service 2000, p. 10). Movement of 

ewes between ewe groups is infrequent, 

but direct observation and aerialtelemetry locations and genetic analysis 

reveal ram movement among at least six 

ewe groups (Boyce et al. 1999, p. 99; 

Rubin et al. 1998, pp. 543–544). 

Additionally, substructuring can occur 

within single herds (i.e., ewe groups) of 

bighorn sheep (Festa-Bianchet 1986, pp. 

327–330; Andrew et al. 1997, pp. 74–75; 

Rubin et al. 1998, pp. 543–548). Such 

substructuring is defined by separate 

home range patterns. Although 

demonstrated more with females, it can 

occur in both sexes. 

Another important long-term process 

in metapopulation dynamics is the 

balance between rates of natural 

extinction and colonization among 

subpopulations. Colonization rates must 

exceed extinction rates for a 

metapopulation to persist (Hanski and 

Gilpin 1991, pp. 8–9). In past decades 

this balance has not occurred for 

Peninsular bighorn sheep due to 

fragmentation, disease, predation, and 

low recruitment (Rubin et al. 1998, pp. 

545–547; Rubin et al. 2002, p. 803–805). 

The remaining fragmented 

subpopulations consist of small, 

isolated groups of bighorn sheep that are 

more vulnerable to extirpation due to 

random naturally occurring events, 

disease, or predation because of their 

small population size. Local extinction 

of small subpopulations can be 

prevented by occasional immigrants 

from neighboring subpopulations (i.e., 

the rescue effect) (Brown and KodricBrown 1977, p. 445). 

Because of the metapopulation 

structure of the Peninsular bighorn 

sheep population, it is important for 

genetic exchange and the conservation 

of the DPS to ensure space for 

movement and connectivity between 

ewe groups. Furthermore, maintaining 

connectivity within the metapopulation 

could help safeguard against local 

extinctions of the remaining 

subpopulations. 

Food 

A wide range of forage resources and 

vegetation associations are required by 

Peninsular bighorn sheep to meet 

annual and drought-related variations in 

forage quality and availability (Hansen 

1980, p. 76). Valley floors, rolling hills, 

and alluvial fans and washes with 

productive soils provide seasonal 

vegetation and water resources 

important to Peninsular bighorn sheep. 

In a mountainous environment like the 

Peninsular Ranges, temperature and soil 

moisture vary widely with slope and 

elevation. This causes seasonal variation 

in plant growth throughout this DPS’ 

habitat. Peninsular bighorn sheep must 

have access to the seasonal abundance 

of plant life at various elevations to 

maximize resources and survive in the 

desert environment. 

Berger (1991, p. 70) found that 

bighorn sheep adjust their feeding 

ranges to exploit more nutritive portions 

of their home ranges, such as within 

bajadas, early in the season when highprotein grasses emerge. Due to high 

energetic costs of pregnancy and 

lactation, ewes are especially dependent 

on areas with nutritious forage to 

increase success of rearing offspring 

(Service 2000, p. 8). Berbach (1987, p. 

97) reports that, when ewes are confined 

to an enclosure and prevented from 

using all vegetation associations during 

late gestation and early lactation, they 

and their lambs die of malnutrition. 

During the reproductive season for 

Peninsular bighorn sheep, nutritious 

forages are typically concentrated on 

specific sites (e.g., alluvial fans, bajadas, 

washes) where more productive, wetter 

soils support greater herbaceous growth 

than steeper, drier, rockier soils (Service 

2000, p. 8). There is a tendency for 

plants that dry out during summer 

months on the mountain-sides to remain 

green longer (and thus more nutritious, 

higher in protein, and more easily 

digested) in the washes, because 

groundwater is generally closer to the 

surface and in greater quantity. 

Furthermore, the greater soil moisture 

supports a suite of nutritious plants that 

do not grow on the dry mountain sides. 

Therefore, washes and alluvial fans play 

an important role in providing desert 

bighorn sheep quality forage during the 

heat of summer months and through 

times of drought. 

Scott (1986, p. 21) found that 

Peninsular bighorn sheep diets are 

dominated by shrub species (64 to 76 

percent), with grasses and forbs species 

making up a smaller portion of the diet 

(19 to 30 percent and 2 to 6 percent, 

respectively). In the following section, 

plant nomenclature is updated to 

conform to treatments in Hickman 

(1993). Common names generally 

conform with those given in Hickman 

(1993) or Abrams (1993–1960). Cited 

scientific names are retained in brackets 

for ease of reference. Foraging studies by 

Scott (1986, p. 21) and Cunningham 

(1982, p. 31) note that Peninsular 

bighorn sheep preferentially feed on 

different plants seasonally. Shrubs such 

as Ambrosia dumosa (burro bush), 

Caesalpinia virgata [Hoffmannseggia 

microphylla] (small-leaved 

Hoffmannseggia), Hyptis emoryi (desert 

lavender), Sphaeralcea spp. 

(globemallow), and Simmondsia 

chinensis (joboba) are primary food 

sources year round; grasses such as 

Aristida adscensionis (sixweeks 

threeawn) and Bromus rubens (red 

brome) along with cacti Opuntia spp. 

(cholla) are primary food sources in the 

fall; forbs such as Plantago spp. (woolly 

plantain), Plantago ovata [insularis] var. 

fastigiata (woolly plantain), and Ditaxis 

neomexicana (common ditaxis) are 

primary food sources in the spring. 

However, Peninsular bighorn sheep 

are generalist foragers, browsing on a 

wide variety of plant species depending 

on seasonal availability. Other plants 

reportedly consumed by Peninsular 

bighorn sheep include Encelia farinose 

(brittlebush), Parkinsonia spp. (Palo 

verde), Ephedra spp. (Mormon tea), 

Agave deserti (desert agave), Quercus 

spp. (scrub oak), Phoradendron 

californicum (desert mistletoe), 

Eriogonum fasciculatum (California 

buckwheat), Prunus fremontii (desert 

apricot), Acacia greggii (catclaw), 

Prosopis juliflora (mesquite), Krameria 

grayi (ratany), and Malosma laurina 

(laurel-leaf sumac) (Browning and 

Monson 1980, p. 88). 

Water 

In the Peninsular Ranges, the 

presence of perennial water is known to 

be a limiting factor only during 

prolonged droughts or summers without 

significant thunderstorm activity 

(Service 2000, p. 156). Water sources are 

most valuable to bighorn sheep if they 

occur in proximity to escape terrain 

with good visibility (Service 2000, p. 9). 

However, according to historical 

Peninsular bighorn sheep occurrence 

data, sheep are known to travel at least 

10 mi (16 km) from sources of perennial 

water (Service 2000, p. 156). According 

to Service biologists familiar with the 

DPS, bighorn sheep usually visit a water 

source every 2 to 3 days, but it is not 

unusual for them to drink more often. 

During hot summer months, desert 

bighorn sheep typically stay close to 

reliable sources of water and drink large 

quantities at each visit. Some research 

has suggested that desert bighorn sheep 

can survive without a permanent water 

source (Krausman et al. 1985), although 

this view is not widely accepted (Turner 

and Weaver 1980, p. 104). In desert 

17322 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

ranges like the Peninsular Ranges, 

rainwater can accumulate in natural 

collection tanks and potholes in the 

rock and provide seasonal or perennial 

water sources. Additionally, natural 

springs provide a reliable source of 

water for Peninsular bighorn sheep. 

Desert bighorn sheep also rely on 

consuming vegetation, including cacti, 

to meet water requirements when 

standing water sources are scarce 

(Turner and Weaver 1980, p. 102). 

Water sources contribute greatly to 

Peninsular bighorn sheep’s ability to 

survive the hot and dry summer 

months. 

Primary Constituent Elements for 

Peninsular Bighorn Sheep 

Within the geographical area 

occupied by Peninsular bighorn sheep 

at the time of listing, we must identify 

the physical or biological features 

essential to the conservation of the DPS 

that may require special management 

considerations or protection. Based on 

the above needs and our current 

knowledge of the life-history, biology, 

and ecology of Peninsular bighorn 

sheep, we determined the Peninsular 

bighorn sheep PCEs are: 

(1) Moderate to steep, open slopes (20 

to 60 percent) and canyons, with canopy 

cover of 30 percent or less (below 4,600 

ft (1,402 m) elevation in Peninsular 

Ranges) that provide space for 

sheltering, predator detection, rearing of 

young, foraging and watering, mating, 

and movement within and between ewe 

groups; 

(2) Presence of a variety of forage 

plants, indicated by the presence of 

shrubs (e.g., Ambrosia spp., Caesalpinia 

spp., Hyptis spp., Sphaeralcea spp., 

Simmondsia spp.), that provide a 

primary food source year round, grasses 

(e.g., Aristida spp., Bromus spp.) and 

cacti (e.g., Opuntia spp.) that provide a 

source of forage in the fall, and forbs 

(e.g., Plantago spp., Ditaxis spp.) that 

provide a source of forage in the spring; 

(3) Steep, rugged, slopes (60 percent 

slope or greater) (below 4,600 ft (1,402 

m) elevation in Peninsular Ranges) that 

provide secluded space for lambing and 

terrain for predator evasion; 

(4) Alluvial fans, washes, and valley 

bottoms that provide important foraging 

areas where nutritious and digestible 

plants can be more readily found during 

times of drought and lactation, and that 

provide and maintain habitat 

connectivity by serving as travel routes 

between and within ewe groups, 

adjacent mountain ranges, and 

important resource areas (e.g., foraging 

areas and escape terrain); and 

(5) Intermittent and permanent water 

sources that are available during 

extended dry periods and provide 

relatively nutritious plants and drinking 

water. 

This final revised critical habitat 

designation encompasses those areas 

containing the PCEs necessary to 

support one or more of the species’ life 

history functions and laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the species. All units in 

this designation contain the PCEs and 

support multiple life processes. As 

stated in the ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this rule, we 

believe that we can conserve Peninsular 

bighorn sheep within its extant range 

and are not including any areas outside 

of the geographical area occupied by the 

species. 

Special Management Considerations or 

Protection 

When designating critical habitat 

within the geographical area that is 

occupied at the time of listing, we 

identify the features that are essential to 

the conservation of the DPS and assess 

whether those features may require 

special management considerations or 

protection. 

Peninsular bighorn sheep habitat and 

the features essential to their 

conservation are threatened by the 

direct and indirect effects of: 

development and expansion of urban 

areas; human disturbance related to 

recreation; construction of roadways 

and power lines; and mineral extraction 

and mining operations. 

Habitat loss (especially in canyon 

bottoms), degradation, and 

fragmentation associated with the 

proliferation of residential and 

commercial development, roads and 

highways, water projects, and vehicular 

and pedestrian recreational uses 

threaten Peninsular bighorn sheep and 

its habitat throughout its range (March 

18, 1998, 63 FR 13134). Cities that occur 

along the eastern boundary of proposed 

revised critical habitat, from the base of 

the San Jacinto and Santa Rosa 

Mountains to the Salton Sea area (Units 

1 and 2A), continue to grow. 

Development adjacent to and within 

Peninsular bighorn sheep habitat affects 

the quality and quantity of lower 

elevation habitat and associated 

vegetation, alluvial fans, and water 

sources (PCEs 1, 2, 4, and 5). By 2000, 

at least 18,500 ac (7,490 ha) of suitable 

Peninsular bighorn sheep habitat had 

been lost to urbanization and agriculture 

along the urban interface between the 

cities of Palm Springs and La Quinta 

(Service 2000, p. 38). Much of the lost 

habitat consisted of low-elevation 

alluvial fans and washes that provided 

important sources of nutrients to ewes 

when they were rearing their lambs 

(PCE 2 and 4) (February 1, 2001, 66 FR 

8650). Moreover, in the northern Santa 

Rosa Mountains, from 1991 to 1996, 34 

percent of Peninsular bighorn sheep 

adult mortalities were directly caused 

by urbanization (February 1, 2001, 66 

FR 8650): five were killed by cars; five 

died from feeding on toxic, nonnative 

ornamental plants; and one was 

strangled in a wire fence (DeForge and 

Ostermann 1997, p. 1). 

Continued urban and commercial 

development within the range of 

Peninsular bighorn sheep could 

fragment the metapopulation into 

isolated groups too small to maintain 

long-term viability. Maintenance of 

genetic diversity allows small ewe 

groups like those in the Peninsular 

Ranges to persist. The inability of rams 

and occasional ewes to move between 

groups erodes the genetic fitness of 

isolated groups (PCE 1 and 4) (March 

18, 1998, 63 FR 13134). Special 

management considerations or 

protection may be needed to maintain 

the physical and biological features 

essential to the conservation of the 

Peninsular bighorn sheep and alleviate 

the effects of development on 

Peninsular bighorn sheep habitat, 

especially lower elevation habitat, 

alluvial fans, and areas of ewe group 

connectivity near urban areas. This 

management or protection could be 

accomplished by controlling the 

expansion of urban, industrial, and 

agricultural development into these 

areas. 

In the Peninsular Ranges (Units 1, 2 

and 3), increased human activity and 

disturbance adjacent to, and within 

Peninsular bighorn sheep habitat may 

threaten bighorn sheep by altering their 

normal behavior. This altered behavior 

can lead to bighorn sheep abandoning 

their habitat and preventing use of 

preferred habitat, including lambing 

areas, water sources, and foraging areas, 

and cause negative physiological effects 

(PCE 1, 2, 3, 4, and 5) (February 1, 2001, 

66 FR 8650; March 18, 1998, 63 FR 

13134). A variety of human activities 

(e.g., hiking, mountain biking, 

horseback riding, camping, hunting, 

livestock grazing, use of aircraft and offroad vehicles) have the potential to 

disrupt normal bighorn sheep social 

behaviors. Special management 

considerations or protection of the 

physical and biological features 

essential to the conservation of the DPS 

may be needed to alleviate the effects of 

human activity and disturbance to 

Peninsular bighorn sheep and ensure 

that the essential features remain 

available for use by Peninsular bighorn 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17323 

sheep. Restricting human use of trail 

systems and natural areas during 

lambing season, re-routing trails, and 

establishing exclusionary fencing 

around urban areas may reduce human 

effects on Peninsular bighorn sheep 

behavior. 

Roads and highways may 

permanently fragment bighorn sheep 

habitat or impede the movement of 

bighorns across the landscape, thus 

isolating subpopulations and disrupting 

the metapopulation structure of the 

DPS. Two major highways run through 

the Peninsular Ranges and fragment 

bighorn sheep habitat. In the northern 

portion of the Peninsular Ranges, State 

Route 74 runs through the Santa Rosa 

Mountains (Unit 2A). Further south, 

State Route 78 cuts through habitat 

between the San Ysidro Mountains and 

Pinyon Mountains (Unit 2B). These 

roadways have degraded habitat and 

generally impeded the movement of 

Peninsular bighorn sheep (especially 

ewes) between ewe groups in the 

surrounding areas (PCE 1, 2, 3, 4, and 

5) (Rubin et al. 1998, p. 547), which can 

erode the genetic fitness of isolated 

groups (March 18, 1998, 63 FR 13134). 

However, some movement has been 

documented across State Route 74 

(Service 2004, pp. 1–2). 

Epps et al. (2005, p. 1035) showed 

that genetic diversity of desert bighorn 

sheep populations was negatively 

correlated with the presence of humanmade barriers (in this case fenced 

highways), and suggested that 

anthropogenic barriers constitute a 

severe threat to the persistence of 

naturally fragmented populations (such 

as Peninsular bighorn sheep). 

Additionally, roads and highways 

represent an unnatural source of 

mortality. Collisions with automobiles 

can be a significant cause of Peninsular 

bighorn sheep mortality within portions 

of the DPS range (DeForge and 

Ostermann 1997, p. 1). Future 

construction of roadways should be 

avoided in critical habitat, and if 

unavoidable, should be constructed to 

minimize habitat effects and allow 

continued connectivity among ewe 

groups. 

Degradation and fragmentation of 

bighorn sheep habitat may occur during 

the construction phase of power lines 

and their associated structures. 

Currently, a large power line (Sunrise 

Powerlink) is approved for construction 

through Peninsular bighorn sheep 

critical habitat. Special management 

considerations and protection of the 

physical and biological features 

essential to the conservation of the DPS 

will be implemented to alleviate the 

effects of power line structures and their 

construction on Peninsular bighorn 

sheep and their habitat. Future 

construction of major infrastructure, 

such as power lines, should be avoided 

in critical habitat, and if unavoidable, 

should be constructed to minimize 

habitat effects and allow continued 

connectivity among ewe groups. 

Mining operations occur within 

southern portions of Peninsular bighorn 

sheep habitat in Units 2B and 3. Mining 

activities and associated facilities 

negatively impact Peninsular bighorn 

sheep by causing the loss of vegetation 

structure required for foraging activities 

and destroying habitats used for escape, 

bedding, lambing, or connectivity 

between ranges (PCE 1, 2, 3, 4, and 5). 

Disturbance could modify the sheep’s 

behavior or cause bighorn sheep to flee 

an area. Special management 

considerations or protection of the 

physical and biological features 

essential to the conservation of the DPS 

may be needed to alleviate the effects of 

mining operations on Peninsular 

bighorn sheep habitat. Further mining 

operations should avoid (to the 

maximum extent possible) areas 

identified as meeting the definition of 

critical habitat for Peninsular bighorn 

sheep. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(2) of the 

Act, we use the best scientific data 

available in determining within the 

geographical area occupied at the time 

of listing the specific areas on which are 

found the features essential to the 

conservation of the DPS which may 

require special management 

considerations or protection, as well as 

in determining if any specific areas 

outside the geographical area occupied 

by the DPS are essential for the 

conservation of the DPS. We only 

designate areas outside the geographical 

area occupied by a species when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species (50 CFR 

424.12(e)). We are designating critical 

habitat for the Peninsular bighorn sheep 

within areas that we determined were 

occupied at the time of listing and that 

contain the physical and biological 

features essential to the conservation of 

the DPS. Lands are designated based on 

sufficient essential features being 

present to support the life processes. 

Based on the criteria used to identify 

critical habitat for the Peninsular 

bighorn sheep, we believe those areas 

designated as critical habitat within the 

geographical area occupied by the DPS 

at the time of listing are sufficient to 

conserve Peninsular bighorn sheep. The 

most recent estimate from 2006 puts the 

population at approximately 800 

individuals (Torres 2007, p. 1). Delisting 

criterion 2 in the Recovery Plan for this 

DPS states that the rangewide 

population must average 750 

individuals (adults and yearlings) with 

a stable or increasing population trend 

over 12 consecutive years (Service 2000, 

p. 66). The occupied areas identified as 

containing the features essential to the 

conservation of the DPS in this 

designation accurately represent the 

areas inhabited by the current 

population which is at a size 

approaching recovery levels. We believe 

that conservation of Peninsular bighorn 

sheep would be achieved if threats to 

this DPS, as described in the ‘‘Special 

Management Considerations or 

Protection’’ section of this rule, were 

reduced or removed due to management 

and protection of areas delineated as 

critical habitat in this rule. Although the 

current population trend is promising, it 

should be noted that the time horizon 

for the delisting criterion mentioned 

above has not been met and other 

downlisting and delisting criteria 

described in the Recovery Plan (such as 

the minimum number of ewes (25) 

present in each recovery region for six 

consecutive years) are yet to be 

achieved. 

For areas outside the geographical 

area occupied by the DPS at the time of 

listing, there are no data on file to 

suggest any such areas are essential for 

the conservation of the DPS. We 

recognize this finding is different than 

what is outlined as essential habitat in 

the 2000 Recovery Plan and what was 

designated as critical habitat in the 2001 

designation (which largely adopted the 

boundary delineated in the Recovery 

Plan). The Recovery Plan and 2001 

critical habitat rule note that allowing 

for ram movement between ewe groups 

is important for maintaining genetic 

variation in the Peninsular bighorn 

sheep metapopulation, and alluvial fans 

can provide important resources for 

sheep. While we believe connectivity 

areas and additional low-elevation areas 

(alluvial-fan habitat) are important for 

the Peninsular bighorn sheep’s recovery, 

we have significantly more data 

available today than when the Recovery 

Plan and 2001 critical habitat were 

finalized. We have utilized the currently 

available data to more precisely identify 

areas meeting the definition of critical 

habitat; in particular, areas related to 

connectivity and low-elevation habitat. 

Such areas are included in this 

designation where the data support the 

determination that such areas contain 

the physical and biological features 

17324 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

essential to the conservation of the DPS. 

For other potential connectivity and 

low-elevation areas that were included 

in the 2001 designation, the available 

movement and occurrence data we have 

for those areas do not support the 

identification of specific areas that 

provide a movement corridor, or a 

determination that the broad expanse of 

low-elevation areas with no evidence of 

current or historical sheep use are 

essential for the conservation of the 

DPS. 

We believe it is important to note that 

critical habitat designation is a different 

process than development of a recovery 

plan. A critical habitat designation is a 

specific regulatory action that defines 

specific areas as critical habitat in 

accordance with the statutory 

definition. A recovery plan is a 

guidance document developed in 

cooperation with partners, which 

provides a roadmap with detailed sitespecific management actions to help 

conserve listed species and their 

ecosystems. The term ‘‘essential,’’ as 

used in the recovery plan, is not 

necessarily used in the same manner as 

it is used in the definition of critical 

habitat. The recovery plan provides 

important information about the species 

and the actions that are needed to bring 

about its recovery, while critical habitat 

identifies specific areas that are 

essential for the species’ conservation. 

The deviation from the Recovery Plan 

boundary and the 2001 final critical 

habitat designation is primarily the 

result of using a revised methodology to 

delineate critical habitat. Our revised 

methodology incorporates new 

information to best identify areas that 

meet the definition of critical habitat 

(see ‘‘Summary of Changes From the 

2001 Critical Habitat Designation To the 

2007 Proposed Rule To Revise Critical 

Habitat’’ section for more discussion). 

As a result, the final revised critical 

habitat boundary does not include areas 

the Recovery Plan identified as 

necessary for the conservation of the 

Peninsular bighorn sheep that we since 

determined (based on the best available 

data at this time) are not essential for 

the conservation of this DPS. Therefore, 

we believe the final revised critical 

habitat boundary more precisely maps 

the physical and biological features that 

occur within the geographical area 

occupied by the Peninsular bighorn 

sheep at the time of listing, which 

includes those areas containing 

preferred habitat for sheep use. 

There are likely additional areas 

outside of the final revised critical 

habitat boundary that contain some of 

the PCEs, including areas identified in 

the Recovery Plan and 2001 critical 

habitat. We recognize that areas outside 

of the critical habitat boundary are 

likely utilized by Peninsular bighorn 

sheep (primarily for movement of rams 

between ewe groups). However, as 

stated above, the data available at this 

time do not support the identification of 

specific areas containing the essential 

features that provide a movement 

corridor between Units 1 and 2A or 

between Units 2B and 3. Additionally, 

Unit 2A is continuous with Unit 2B and 

these units contain a large contiguous 

portion of the Peninsular Ranges 

allowing for movement between six ewe 

groups with these units. Furthermore, 

although we do not have information to 

identify specific movement corridors, 

the areas between Units 1 and 2A or 

between Units 2B and 3 are steep, 

rugged, and remote and there are no 

perceived threats in these areas. 

Therefore, we are confident that these 

areas will still be available for any 

natural sheep movements between units 

allowing for genetic connectivity. We 

also recognize that some areas below 20 

percent slope (low-elevation areas such 

as alluvial fans, washes, and valley 

bottoms) may be used by sheep; 

however, available data do not support 

a determination that the broad expanse 

of low-elevation areas with no evidence 

of current or historical sheep use are 

essential for the conservation of the DPS 

(low-elevation areas on which are found 

features essential to the conservation of 

the DPS are included in this 

designation). Areas outside the final 

revised critical habitat designation will 

continue to be subject to conservation 

actions implemented under section 

7(a)(1) of the Act and regulatory 

protections afforded by the section 

7(a)(2) jeopardy standard and the 

prohibitions of section 9 of the Act if 

actions occurring in these areas may 

affect sheep; these protections and 

conservation tools will continue to 

contribute to recovery of the DPS. 

We utilize the best scientific and 

commercial data available to develop 

criteria that (at this point in time) 

identifies the PCEs laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS. The PCEs 

incorporate those features needed by the 

Peninsular bighorn sheep as outlined in 

the Recovery Plan, including (1) Open 

slopes and canyons with minimal 

canopy cover; (2) presence of forage 

plants; (3) steep, rugged slopes; (4) 

foraging areas within alluvial fans, 

washes, and valley bottoms; and (5) 

intermittent and permanent water 

sources. 

We used the following data to 

delineate critical habitat: (1) Areas that 

contain the PCEs required by the DPS as 

determined from aerial imagery and 

Geographic Information System (GIS) 

data on vegetation, elevation, and slope; 

(2) areas within the ewe group 

distribution (i.e., subpopulations) 

boundaries identified by Rubin et al. 

(1998); (3) areas with occupancy data 

indicating they are currently occupied 

or areas with occupancy data indicating 

they were occupied at some point 

between 1988 (i.e., the time of listing 

(1998) less 10 years, which is the 

average lifespan of Peninsular bighorn 

sheep) and 2008 (present time); and (4) 

areas where occupancy data points 

indicate repeated Peninsular bighorn 

sheep use, but which were not captured 

within the ewe group distribution 

boundaries identified by Rubin et al. 

(1998). Additionally, we gathered 

information from our files, staff 

biologists, the California Department of 

Fish and Game, the Bighorn Institute, 

known bighorn sheep experts, and the 

public. Our revision to critical habitat is 

designed to capture ewe groups; 

lambing areas; foraging areas, including 

alluvial fans; water sources; and areas 

used for natural sheep movements. 

To determine the criteria used to 

identify critical habitat in this critical 

habitat designation, we identified areas 

we believe contain the PCEs essential to 

the conservation of Peninsular bighorn 

sheep and coupled this information 

with Peninsular bighorn sheep ewe 

group distribution and occurrence data 

that have been available since the time 

of listing. We believe this is the most 

appropriate way to accurately delineate 

the areas containing the PCEs laid out 

in the appropriate quantity and spatial 

arrangement essential to the 

conservation of the DPS. The broadbased methodology used to delineate 

critical habitat in the 2001 critical 

habitat rule (and 2000 Recovery Plan) 

included large expanses (hundreds of 

thousands of acres) of habitat (including 

very general connectivity areas and lowelevation habitat) which were 

determined to be essential at that time. 

However, upon reevaluation of the data 

available at that time, data obtained 

since, and our revised methodology for 

delineating critical habitat, we find that 

areas were included in the 2001 

designation that do not meet the 

definition of critical habitat. Given the 

more detailed nature of the currently 

available scientific information, it is not 

appropriate to continue to use the 

broad-based methodology used in the 

2001 designation. Incorporating the 

available updated occupancy data 

allowed us to examine sheep use during 

a period documented to exhibit large 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17325 

fluctuations in the DPS population 

levels. As a result, we identified those 

areas that exhibit substantial sheep 

activity at a broad spatial distribution. 

In other words, the availability of sheep 

occurrence data provided us the 

opportunity to use this information as a 

proxy to better define and capture in the 

final revised critical habitat boundary 

those areas containing the physical and 

biological features essential to the 

conservation of the Peninsular bighorn 

sheep. 

We delineated critical habitat 

boundaries using the following steps: 

(1) We mapped areas that contain the 

PCEs required by the DPS as determined 

from aerial imagery and Geographic 

Information System (GIS) data on 

vegetation, elevation, and slope, and 

delineated our revised units to ensure 

that they capture the PCEs. Where 

appropriate, we expanded the 

boundaries to capture the extent of an 

alluvial fan or water source (PCE 4 or 5, 

respectively). We also removed areas 

that we determined do not contain PCEs 

or otherwise do not contain suitable 

Peninsular bighorn sheep habitat, such 

as areas above 4,600 ft (1,400 m) 

elevation (PCE 1), areas containing 

conifer woodland with canopy cover 

greater than 30 percent (PCE 1), and 

slopes less than 20 percent (PCE 1), 

unless those areas overlapped 

specifically with Rubin et al.’s (1998, 

pp. 539–561) ewe group distributions 

and had documented use by Peninsular 

bighorn sheep as evidenced by 

occurrence data, as further described in 

the following steps. 

(2) We mapped ewe group areas from 

Rubin et al. (1998) over GIS imagery of 

the Peninsular Ranges to delineate the 

distribution of ewe groups in the 

proposed revised critical habitat. We 

consider Rubin et al. (1998) to be the 

best available data on Peninsular 

bighorn sheep ewe group distribution. 

The ewe group delineations presented 

in Rubin et al. (1998) were based on 

data collected during 1993 to 1996, 

when the population of Peninsular 

bighorn sheep was at historically low 

levels. Therefore, the ewe group 

delineations present a minimum 

distribution of bighorn sheep in the 

Peninsular Ranges. This is the only data 

we are aware of that identifies the 

distribution of ewe groups and 

subgroups within the Peninsular 

Ranges. Furthermore, we believe that 

the ewe groups presented in Rubin et al. 

(1998) accurately depict the general 

locations of the known ewe groups in 

these ranges, providing a logical proxy 

to help identify those areas containing 

the physical and biological features 

essential to the conservation of the 

Peninsular bighorn sheep. 

(3) We compared the ewe group 

delineation from Rubin et al. (1998, pp. 

539–561) with all occupancy data 

collected since 1988 on GIS imagery 

maps to: (1) Ensure that Rubin et al. 

(1998, pp. 539–561) accurately 

represents the boundaries of the ewe 

groups at larger population levels; (2) 

capture possible ram movement; and (3) 

capture other areas used by bighorn 

sheep in recent years. Subsequently, we 

expanded the delineated ewe group 

areas to include areas where occupancy 

data points indicate repeated Peninsular 

bighorn sheep use and sheep 

movements (pre- and post-Rubin et al. 

1998, pp. 539–561), and to include areas 

that contain the PCEs for Peninsular 

bighorn sheep. We delineated the 

critical habitat boundaries at these 

locations to capture the majority of 

occurrence points while still following 

the boundaries of the PCEs, such as 

elevations below 4,600 ft (1,400 m) (PCE 

1), areas with 30 percent canopy cover 

or less (PCE 1), escape terrain (PCE 3), 

slopes of 20 percent or greater (PCE 1), 

alluvial fans (PCE 4), washes (PCE 4), 

and water sources (PCE 5) immediately 

adjacent to the identified ewe groups. 

When it was not possible to follow 

boundaries of the PCEs, we delineated 

the border around occurrence points to 

follow natural breaks in the terrain such 

as ridgelines, canyon bottoms, and toe 

of slope. 

Specifically, we expanded the area 

representing the northernmost ewe 

group delineation (i.e., San Jacinto 

Mountains) to include the area north of 

Chino Canyon where (1) We have 

evidence of recent ewe and ram 

movements; and (2) the Bighorn 

Institute has released, and continues to 

release, captive-born sheep to help 

recover this DPS. We also expanded the 

area representing the southernmost ewe 

group delineation (i.e., Carizzo Canyon 

area) to the southeast to capture water 

sources (PCE 5), including habitat near 

the Interstate 8 island southwest of 

Ocotillo, California, south towards the 

U.S.-Mexico border where there are 

consistent, recent sightings of 

uncollared Peninsular bighorn sheep. 

Finally, we expanded ewe group 

delineations to include areas of 

occupied habitat between the ewe 

groups in the Santa Rosa Mountains 

continuing south along the Peninsular 

Ranges to the Vallecito Mountains ewe 

group. Documented Peninsular bighorn 

sheep use of these intervening habitat 

areas is consistent with the Rubin et al. 

(1998, pp. 539–561) demographic study, 

which indicated possible connectivity 

between ewe groups through this area. 

(4) We examined all pre-listing 

occurrence data in our files to determine 

if our revised critical habitat missed any 

areas of historical repeated Peninsular 

bighorn sheep use. As a result, we 

identified an area of historical repeated 

use that was occupied at the time of 

listing between two ewe subgroups 

documented in Rubin et al. (1998, pp. 

539–561) as (1) Santa Rosa Mountains 

east of State Route 74 (Martinez 

Canyon); and (2) Santa Rosa Mountains 

east of State Route 74 (south)). 

Documented Peninsular bighorn sheep 

use of these intervening habitat areas is 

consistent with the Rubin et al. (1998, 

pp. 539–561) demographic study, which 

indicated possible connectivity between 

these subgroups through this area. This 

area is important in light of genetic 

findings by Boyce et al. (1999, pp. 99– 

106) that indicate ewe groups within 

these ranges maintain genetic 

connectivity, probably through malemediated nuclear gene flow. Based on 

the importance of this area for 

connectivity between subgroups, we 

expanded the critical habitat boundaries 

to include areas where occupancy data 

points indicate historically occupied 

habitat. Since the number of occurrence 

data points in historically occupied 

areas is relatively small, likely due to 

minimal survey effort in those remote 

areas, we delineated the unit boundaries 

in these areas to follow the boundaries 

of the PCEs, such as elevations below 

4,600 ft (1,400 m) (PCE 1), areas with 30 

percent canopy cover or less (PCE 1), 

escape terrain (PCE 3), alluvial fans 

(PCE 4), washes (PCE 4), and water 

sources (PCE 5) immediately adjacent to 

the identified ewe groups. 

When determining the critical habitat 

boundaries within this final revised 

rule, we made every effort to avoid 

including developed areas such as lands 

covered by buildings, pavement, mining 

pits, and other structures because such 

lands lack essential features for the 

Peninsular bighorn sheep. The scale of 

the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final revised critical habitat 

are excluded by text in this final rule. 

Therefore, a Federal action involving 

these lands would not trigger section 7 

consultation with respect to critical 

habitat and the requirement of no 

destruction or adverse modification 

unless the specific action may affect 

adjacent critical habitat. 

17326 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

Final Critical Habitat Designation 

We are designating approximately 

376,938 ac (152,542 ha) of critical 

habitat for Peninsular bighorn sheep in 

four units that were proposed as revised 

critical habitat. Table 2 provides the 

approximate area determined to meet 

the definition of critical habitat for 

Peninsular bighorn sheep in the 2007 

proposed rule, areas added to the 

proposed rule announced in the NOA 

published in the Federal Register on 

August 26, 2008, areas excluded from 

the final revised critical habitat 

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

Act (please see ‘‘Exclusions Under 

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

discussion), and areas being designated 

as final revised critical habitat. 

TABLE 2—CRITICAL HABITAT UNITS FOR PENINSULAR BIGHORN SHEEP IN RIVERSIDE, SAN DIEGO, AND IMPERIAL

COUNTIES, CALIFORNIA; LAND OWNERSHIP AND EVOLUTION OF FINAL SIZE IN ACRES (HECTARES) 

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

Critical habitat unit Land ownership 2007 Proposed critical 

habitat (72 FR 

57740) 10

2008 NOA changes to 

proposed critical 

habitat (73 FR 

50498) 11

Areas excluded under 

section 4(b)(2) of 

the Act 

Final critical habitat 

1. San Jacinto Mts. ............ Tribal 1 .............. 4,323 (1,749) 0 ................ 4,323 (1,749) 0 ................

BLM 2 ................ 3,135 (1,269) 0 ................ 0 ................ 3,135 (1,269) 

USFS3 .............. 1,237 (501) ¥66 (27) 0 ................ 1,171 (474) 

State 4 ............... 276 (112) 0 ................ 276 (112) 0 ................

Private 5 ............ 6,302 (2,322) 0 ................ 6,011 (2,433) 291 (118) 

Subtotal ..................................................... 15,273 (6,181) ¥66 (27) 10,610 (4,294) 4,597 (1,860) 

2A. N. Santa Rosa Mts. .... Tribal 1 .............. 467 (189) 0 ................ 467 (189) 0 ................

BLM .................. 44,485 (18,003) 613 (248) 0 ................ 45,098 (18,251) 

State 6 ............... 17,547 (7,101) 1,490 (603) 19,037 (7,704) 0 ................

Private 5 ............ 12,499 (5,058) 938 (380) 13,435 (5,437) 2 (1) 

Subtotal ..................................................... 74,998 (30,350) 3,041 (1,231) 32,939 (13,330) 45,100 (18,251) 

2B. S. Santa Rosa Mts..

south to Vallecito Mts. BLM .................. 16,266 (6,583) 0 ................ 0 ................ 16,266 (6,583) 

State 7 ............... 197,509 (79,929) 19,697 (7,971); 0 ................ 217,206 (87,901) 

........................... ................ ................ ¥97 (39) 

Private .............. 12,436 (5,033) 2,113 (855) 0 ................ 14,549 (5,888) 

Subtotal ..................................................... 226,211 (91,545) 21,810 (8,826) 0 ................ 248,021 (100,371) 

3. Carrizo Canyon ............. BLM .................. 27,762 (11,235) 9,985 (4,041) 0 ................ 37,747 (15,276) 

State 8 ............... 35,475 (14,356) 58 (23) 0 ................ 35,533 (14,380) 

Private .............. 4,177 (1,690) 1,249 (505) 0 ................ 5,426 (2,196) 

Local 9 ............... 514 (208) 0 ................ 0 ................ 514 (208) 

Subtotal ..................................................... 67,928 (27,489) 11,292 (4,570) 0 ................ 79,220 (32,059) 

Total ................................................... 384,410 (155,564) 36,077 (14,600) 43,549 (17,624) 376,938 (152,542) 

1Tribal = Agua Caliente Band of Cahuilla Indians Reservation and tribal lands. 

2BLM = Bureau of Land Management. 

3 USFS = United States Forest Service. 

4State = Coachella Valley Mountains Conservancy (CVMC), California Department of Fish and Game (CDFG) and California State Lands

Commission (CSLC). 5Private = Private or Coachella Valley MSHCP permittee. 

6State = University of California Natural Reserve System, CVMC, Wildlife Conservation Board, and State unpermitted. 

7State = CDFG, CSLC, and California Department of Parks and Recreation (CDPR). 

8State = CDPR. 

9 Local = City/County Park. 

10Proposed critical habitat acreages for ownership types reported in this column do not match those reported in the October 10, 2007, proposed rule (72 FR 57740) because they are revised to reflect updated ownership information obtained since the proposed rule published. 11 Minus (¥) symbols in this column indicate areas removed from proposed revised critical habitat. 

Below, we present brief descriptions 

of the units designated as critical habitat 

for Peninsular bighorn sheep. For more 

information about the areas excluded 

from critical habitat, please see the 

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

Act’’ section of this final rule. 

Unit 1: San Jacinto Mountains 

Unit 1 consists of approximately 

4,597 ac (1,860 ha) in the San Jacinto 

Mountains, Riverside County. Unit 1 is 

generally located within an area 

bounded on the east by the city of Palm 

Springs, bounded on the north by 

Windy Point and Snow Canyon, and 

extends south to the northern Palm 

Canyon area. Land ownership within 

the unit includes approximately 3,135 

ac (1,269 ha) of BLM land; 1,171 ac (474 

ha) of USFS land; and 291 ac (118 ha) 

of Desert Water Authority (DWA) land 

(Table 2). 

Unit 1 begins at a low-elevation of 

about 450 ft (137 m) on the eastern slope 

and rises to about 4,600 ft (1,400 m) to 

the west. It is the northernmost unit of 

revised critical habitat for Peninsular 

bighorn sheep. This unit was occupied 

at the time of listing and is currently 

occupied. Unit 1 contains the physical 

and biological features essential to the 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17327 

conservation of Peninsular bighorn 

sheep including a range of vegetation 

types (PCE 2), foraging and watering 

areas including alluvial fans (PCE 4 and 

5), and steep rocky terrain with 

elevations and slopes that provide for 

sheltering, lambing, mating, movement 

among and between ewe groups (PCE 1), 

and predator evasion (PCE 3). 

The physical and biological features 

essential to the conservation of 

Peninsular bighorn sheep in Unit 1 may 

require special management 

considerations or protection to 

ameliorate the threats of urban and 

industrial development (particularly in 

lower elevation areas) due to the 

proximity of this unit to the Palm 

Springs area, and to decrease the direct 

and indirect effects of human 

disturbance to Peninsular bighorn sheep 

and its habitat. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this final rule for 

a detailed discussion of the threats to 

Peninsular bighorn sheep habitat and 

potential management considerations. 

We excluded approximately 4,323 ac 

(1,749 ha) of tribal land that meets the 

definition of critical habitat for 

Peninsular bighorn sheep from the final 

revised designation. We believe the 

designation of critical habitat would 

adversely impact our working 

relationship with the Tribe, and that 

Federal regulation through critical 

habitat designation would be viewed as 

an unwarranted and unwanted intrusion 

into tribal natural resource programs. 

Furthermore, the approximately 4,323 

ac (1,749 ha) of tribal land within 

critical habitat are currently managed in 

a manner that provides conservation 

benefits to Peninsular bighorn sheep 

through implementation of a Tribal 

Council-approved management plan 

currently being implemented (2001 

Tribal Conservation Strategy; MBA, 

2001). The Tribe is also implementing a 

number of smaller scale habitat- and 

activity-specific plans that provide some 

benefit to Peninsular bighorn sheep: 

Indian Canyons Master Plan, 2002; 

Tahquitz Canyon Wetland Conservation 

Plan, 2000; Trail Plan, 2000; and the 

draft Tribal Fire Management Plan. 

Furthermore, the 4,323 ac (1,749 ha) of 

tribal land are within the plan area of 

the 2007 draft Tribal HCP (Helix 

Environmental Planning, 2007) that will 

incorporate additional conservation 

measures once finalized. See the 

‘‘Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships’’ section of this final rule 

for a detailed discussion of the tribal 

management plans. 

We also excluded lands within the 

plan area for the Coachella Valley 

MSHCP from Unit 1. In both the 2007 

proposed revised rule and NOA 

published in the Federal Register on 

August 26, 2008, we stated we would 

consider the possible exclusion of 

approximately 6,287 ac (2,544 ha) of 

private land and Coachella Valley 

MSHCP permittee-owned land from the 

final critical habitat designation in Unit 

1. We are excluding these areas from 

this final revised designation based on 

partnerships developed during the 

development of the Coachella Valley 

MSHCP that was finalized on October 1, 

2008 (see the ‘‘Application of Section 

4(b)(2)—Other Relevant Impacts— 

Conservation Partnerships’’ section for a 

detailed discussion). 

Unit 2A: North Santa Rosa Mountains 

Unit 2A consists of approximately 

45,100 ac (18,251 ha) in the northern 

Santa Rosa Mountains, Riverside 

County. Unit 2A is generally located on 

the east-facing slopes of the northern 

Santa Rosa Mountains, and extends 

from near the City of Rancho Mirage in 

the north to Martinez Canyon in the 

south, limited to the east by the 

communities of the northern Coachella 

Valley. Land ownership within the unit 

includes approximately 45,098 ac 

(18,251 ha) of BLM land and 2 ac (1 ha) 

of DWA land (Table 2). 

Unit 2A begins at a low-elevation of 

about 50 ft (15 m) on the eastern slope 

and rises to about 4,600 ft (1,400 m) to 

the west. This unit was occupied at the 

time of listing and remains occupied. 

Unit 2A contains the physical and 

biological features that are essential to 

the conservation of the Peninsular 

bighorn sheep including a range of 

vegetation types (PCE 2), foraging and 

watering areas including alluvial fans 

(PCE 4 and 5), and steep to very steep, 

rocky terrain with elevations and slopes 

that provide for sheltering, lambing, 

mating, movement among and between 

ewe groups (PCE 1), and predator 

evasion (PCE 3). 

The physical and biological features 

essential to the conservation of 

Peninsular bighorn sheep in Unit 2A 

may require special management 

considerations or protection to 

ameliorate the threats of urban, 

industrial, and agricultural 

development, and to decrease the direct 

and indirect effects of human 

disturbance to Peninsular bighorn sheep 

and its habitat, due to the proximity of 

this unit to the highly developed 

northern Coachella Valley. In particular, 

the essential features in this unit may 

require special management 

considerations or protection to alleviate 

threats to Peninsular bighorn sheep and 

its habitat associated with roadways, 

such as State Route 74 that cuts through 

the midsection of this unit and may 

impede movement between ewe groups. 

Please see the ‘‘Special Management 

Considerations or Protection’’ section of 

this final rule for a detailed discussion 

of the threats to Peninsular bighorn 

sheep habitat and potential management 

considerations. 

We excluded approximately 467 ac 

(189 ha) of Agua Caliente Band of 

Cahuilla Indians tribal lands meeting 

the definition of critical habitat for 

Peninsular bighorn sheep from the final 

revised designation. As stated above 

under the description of Unit 1, the 

designation of critical habitat would 

likely adversely impact our working 

relationship with the Tribe, and we 

believe that Federal regulation through 

critical habitat designation would be 

viewed as an unwarranted and 

unwanted intrusion into tribal natural 

resource programs. Furthermore, these 

approximately 467 ac (189 ha) of tribal 

land within critical habitat are currently 

managed in a manner that provides 

conservation benefits to Peninsular 

bighorn sheep through implementation 

of a Tribal Council-approved 

management plan currently being 

implemented (2001 Tribal Conservation 

Strategy; MBA, 2001). The 467 ac (189 

ha) of tribal land are within the plan 

area of the 2007 draft Tribal HCP (Helix 

Environmental Planning, 2007) that will 

incorporate additional conservation 

measures once finalized. See the 

‘‘Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships’’ section of this final 

revised rule for a detailed discussion of 

the tribal management plans. 

We also excluded lands within the 

plan area for the Coachella Valley 

MSHCP from Unit 2A. In the 2007 

proposed revised rule and the NOA 

published in the Federal Register on 

August 26, 2008, we stated we would 

consider the possible exclusion of 

approximately 32,472 ac (13,141 ha) of 

private land and Coachella Valley 

MSHCP permittee-owned land from the 

final critical habitat designation in Unit 

2A. We are excluding these areas from 

this final revised designation based on 

partnerships developed during the 

development of the Coachella Valley 

MSHCP that was finalized on October 1, 

2008 (see the ‘‘Application of Section 

4(b)(2)—Other Relevant Impacts— 

Conservation Partnerships’’ section for a 

detailed discussion). 

Unit 2B: South Santa Rosa Mountains 

South to Vallecito Mountains 

Unit 2B consists of approximately 

248,021 ac (100,371 ha) in the southern 

Santa Rosa Mountains, Coyote Canyon, 

17328 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

San Ysidro Mountains, Pinyon 

Mountains, and Vallecito Mountains, in 

Riverside, San Diego, and Imperial 

Counties. Unit 2B is generally located 

on the east-facing slopes of the above 

ranges, loosely bounded on the east by 

the Coachella Valley floor, and extends 

from the southern Santa Rosa 

Mountains in the north to the Fish 

Creek Mountains in the south. Land 

ownership within the unit includes 

approximately 16,266 ac (6,583 ha) of 

BLM land; 217,206 ac (87,901 ha) of 

land owned by the State of California 

(including portions of Anza-Borrego 

Desert State Park); and 14,549 ac (5,888 

ha) of private land (Table 2). 

Unit 2B begins at a low-elevation of 

about 150 ft (45 m) on the eastern slope 

and rises to about 4,600 ft (1,400 m) to 

the west. This unit was occupied at the 

time of listing and remains occupied. 

This unit contains the physical and 

biological features that are essential to 

the conservation of Peninsular bighorn 

sheep including a range of vegetation 

types (PCE 2), foraging and watering 

areas including alluvial fans (PCE 4 and 

5), and steep to very steep, rocky terrain 

with elevations and slopes that provide 

for sheltering, lambing, mating, 

movement among and between ewe 

groups (PCE 1), and predator evasion 

(PCE 3). 

The physical and biological features 

essential to the conservation of 

Peninsular bighorn sheep in Unit 2B 

may require special management 

considerations or protection to: (1) 

Ameliorate threats of urban, industrial, 

and agricultural development due to the 

proximity of this unit to the Coachella 

Valley, especially the lower elevation 

areas in the northeastern portions of this 

unit; (2) decrease the direct and indirect 

effects of human disturbance to 

Peninsular bighorn sheep and its habitat 

due to recreational activity, since most 

of this unit includes lands within AnzaBorrego Desert State Park, which is open 

to recreational activities; (3) alleviate 

threats to Peninsular bighorn sheep and 

its habitat associated with State Route 

78, which cuts through the southern 

portion of this unit and may impede 

movement between ewe groups; and (4) 

alleviate threats to Peninsular bighorn 

sheep and its habitat associated with 

mining operations at Fish Canyon 

Quarry and various mining claims in the 

unit. Please see the ‘‘Special 

Management Considerations or 

Protection’’ section of this final rule for 

a detailed discussion of the threats to 

Peninsular bighorn sheep habitat and 

potential management considerations. 

Unit 3: Carrizo Canyon 

Unit 3 consists of approximately 

79,220 ac (32,059 ha) in the Carrizo 

Canyon area of San Diego and Imperial 

Counties, extending south to the U.S.- 

Mexico border. Unit 3 is generally 

located in Carrizo Canyon and the 

surrounding In-Ko-Pah Mountains, 

Jacumba Mountains, Coyote Mountains, 

and Tierra Blanca Mountains; it is 

loosely bounded on the north, east, and 

west by the Coachella Valley floor. Land 

ownership within the unit includes 

approximately 37,747 ac (15,276 ha) of 

BLM land; 35,533 ac (14,380 ha) of land 

owned by the State of California 

(including portions of Anza-Borrego 

Desert State Park); 5,426 ac (2,196 ha) of 

private land; and 514 ac (208 ha) of 

local park land (Table 2). 

Unit 3 begins at a low-elevation of 

about 400 ft (122 m) on the eastern slope 

and rises to about 4,600 ft (1,400 m) to 

the west. This unit was occupied at the 

time of listing and is currently 

occupied. This unit contains the 

physical and biological features that are 

essential to the conservation of 

Peninsular bighorn sheep including a 

range of vegetation types (PCE 2), 

foraging and watering areas including 

alluvial fans (PCE 4 and 5), and steep to 

very steep, rocky terrain with elevations 

and slopes that provide for sheltering, 

lambing, mating, movement among and 

between ewe groups (PCE 1), and 

predator evasion (PCE 3). 

The physical and biological features 

essential to the conservation of 

Peninsular bighorn sheep in Unit 3 may 

require special management 

considerations or protection to: (1) 

Decrease the direct and indirect effects 

of human disturbance to Peninsular 

bighorn sheep and its habitat due to 

recreational activity, since most of this 

unit includes lands within AnzaBorrego Desert State Park, which is open 

to recreational activities; (2) alleviate 

threats to Peninsular bighorn sheep and 

its habitat associated with Interstate 8, 

which cuts through the southern portion 

of this unit and may impede movement 

between ewe groups; and (3) alleviate 

threats to Peninsular bighorn sheep and 

its habitat associated with mining 

operations at Ocotillo Mineral Material 

Site and other mining claims that may 

occur in the unit. Please see the 

‘‘Special Management Considerations or 

Protection’’ section of this final rule for 

a detailed discussion of the threats to 

Peninsular bighorn sheep habitat and 

potential management considerations. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

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

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify designated critical habitat. 

Decisions by the 5th and 9th Circuit 

Courts of Appeals have invalidated our 

definition of ‘‘destruction or adverse 

modification’’ (50 CFR 402.02) (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

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

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

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

rely on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

to serve its intended conservation role 

for the species. 

Under section 7(a)(2) of the Act, if a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that are likely to adversely affect 

listed species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action; 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction; 

(3) Are economically and 

technologically feasible; and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17329 

destroying or adversely modifying 

critical habitat. 

Reasonable and prudent alternatives 

can vary from slight project 

modifications to extensive redesign or 

relocation of the project. Costs 

associated with implementing a 

reasonable and prudent alternative are 

similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in instances where a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, 

Federal agencies may need to request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat. 

Federal activities that may affect 

Peninsular bighorn sheep or its 

designated critical habitat will require 

section 7(a)(2) consultation under the 

Act. Activities on State, tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the U.S. Army 

Corps of Engineers under section 404 of 

the Clean Water Act (33 U.S.C. 1251 et 

seq.) or a permit from us under section 

10(a)(1)(B) of the Act) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

examples of agency actions that may be 

subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, tribal, 

local, or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would remain functional to 

serve its intended conservation role for 

the species. Activities that may destroy 

or adversely modify critical habitat are 

those that alter the physical and 

biological features to an extent that 

appreciably reduces the conservation 

value of critical habitat for Peninsular 

bighorn sheep. Generally, the 

conservation role of Peninsular bighorn 

sheep critical habitat units is to support 

viable core area populations. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for Peninsular bighorn sheep include, 

but are not limited to: 

(1) Actions that would significantly 

reduce ongoing management and 

conservation efforts that benefit 

Peninsular bighorn sheep on public 

lands. Such activities could include, but 

are not limited to, the sale, exchange, or 

lease of lands managed by BLM or other 

Federal agencies, and the State of 

California. These activities could reduce 

the amount of space that is available for 

individual and population growth and 

normal behavior, as well as reduce or 

eliminate the number and extent of sites 

for foraging, watering, breeding, 

reproduction, and rearing of offspring. 

These activities could also reduce the 

opportunities available to Federal 

agencies to exercise their section 7(a)(1) 

of the Act responsibilities to carry out 

programs to conserve listed species. 

(2) Actions that would significantly 

reduce the availability of or accessibility 

to seasonal ranges. Such activities could 

include, but are not limited to, grazing, 

mining, and power line and road 

construction activities. These activities 

could degrade, reduce, fragment, or 

eliminate available foraging resources or 

alter current foraging activities of 

Peninsular bighorn sheep. 

(3) Actions that would result in the 

significant expansion of dense 

vegetation communities within 

Peninsular bighorn sheep habitat. Such 

activities could include, but are not 

limited to, fire suppression. These 

activities could allow expansion of 

vegetation cover such that movement 

patterns of bighorn sheep are altered by 

avoidance of these areas. Tall, dense 

vegetation decreases visibility for 

bighorn sheep and provides cover for 

predators such as the mountain lion, a 

common predator of Peninsular bighorn 

sheep. 

(4) Actions that would create 

significant barriers to movement. Such 

activities could include, but are not 

limited to, road construction, residential 

development, and resort or campground 

facility development or expansion. 

These activities could interfere with 

movement within and between habitats, 

thereby reducing the availability of 

habitat for foraging, watering, breeding, 

reproduction, sheltering, and rearing of 

offspring. These activities could also 

reduce opportunities for movement 

between existing populations, dispersal, 

and genetic interchange between ewe 

groups. 

(5) Actions that would significantly 

degrade habitat or cause a disturbance 

to Peninsular bighorn sheep. Such 

activities could include, but are not 

limited to, recreational activities, such 

as off-road vehicle use, hiking, camping, 

rock climbing, horseback riding, and 

outfitter guided activities. These 

activities could displace animals from 

foraging areas, water sources, and 

escape terrain, and could impact the 

quality and quantity of forage. 

Exemptions 

Application of Section 4(a)(3) of the Act 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an 

integrated natural resources 

management plan (INRMP) by 

November 17, 2001. An INRMP 

integrates implementation of the 

military mission of the installation with 

stewardship of the natural resources 

found on the base. Each INRMP 

includes: 

• An assessment of the ecological 

needs on the installation, including the 

need to provide for the conservation of 

listed species; 

• A statement of goals and priorities; 

• A detailed description of 

management actions to be implemented 

to provide for these ecological needs; 

and 

• A monitoring and adaptive 

management plan. 

Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management; fish and wildlife habitat 

enhancement or modification; wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife; and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108– 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

17330 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’ 

There are no Department of Defense 

lands with a completed INRMP within 

the critical habitat designation. 

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

Act 

Application of Section 4(b)(2) of the Act 

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

the Secretary must designate and revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. In the 

following sections, we address a number 

of general issues that are relevant to our 

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

Economic Analysis 

Following the publication of the 

proposed revised critical habitat 

designation, we conducted an economic 

analysis to estimate the potential 

economic effect of the designation. The 

draft economic analysis (DEA; dated 

June 9, 2008) was made available for 

public review and comment from 

August 26, 2008, to October 27, 2008 (73 

FR 50498). Substantive comments and 

information received on the DEA are 

summarized above in the ‘‘Public 

Comment’’ section and are incorporated 

into the final analysis, as appropriate. 

Taking any relevant new information 

into consideration, the Service 

completed a final economic analysis 

(FEA) (dated November 25, 2008) of the 

designation that updates the DEA by 

removing impacts that were not 

considered probable or likely to occur. 

The primary purpose of the economic 

analysis is to estimate the potential 

incremental economic impacts 

associated with the designation of 

critical habitat for Peninsular bighorn 

sheep. This information is intended to 

assist the Secretary in making decisions 

about whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. The economic 

analysis considers the economic 

efficiency effects that may result from 

the designation. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’ 

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 

The economic analysis also addresses 

how potential economic impacts are 

likely to be distributed, including an 

assessment of any local or regional 

impacts of habitat conservation and the 

potential effects of conservation 

activities on government agencies, 

private businesses, and individuals. The 

economic analysis measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. This 

information can be used by the 

Secretary to assess whether the effects of 

the designation might unduly burden a 

particular group or economic sector. 

Finally, the economic analysis looks 

retrospectively at costs that have been 

incurred since the date we listed the 

Peninsular bighorn sheep as endangered 

(March 18, 1998, 63 FR 13134), and 

considers those costs that may occur in 

the years following the revised 

designation of critical habitat, with the 

timeframes for this analysis varying by 

activity. 

The economic analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, local zoning 

laws, State and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other State and Federal agencies. 

Economic impacts that result from these 

types of protections are not included in 

the analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The economic analysis examines 

activities taking place both within and 

adjacent to the designation. It estimates 

impacts based on activities that are 

‘‘reasonably foreseeable’’ including, but 

not limited to, activities that are 

currently authorized, permitted, or 

funded, or for which proposed plans are 

currently available to the public. 

Accordingly, the analysis bases 

estimates on activities that are likely to 

occur within a 20-year timeframe, from 

when the proposed rule became 

available to the public (October 10, 

2007, 72 FR 57740). The 20-year 

timeframe was chosen for the analysis 

because, as the time horizon for an 

economic analysis is expanded, the 

assumptions on which the projected 

number of projects and cost impacts 

associated with those projects are based 

become increasingly speculative. 

The economic analysis is intended to 

quantify the baseline and incremental 

economic impacts of all potential 

conservation efforts for Peninsular 

bighorn sheep associated with the 

following activities: (1) Habitat 

management; (2) development; (3) 

mining; (4) recreation; (5) 

transportation; and (6) utility 

construction. Baseline impacts include 

the potential economic impacts of all 

actions relating to the conservation of 

the Peninsular bighorn sheep, including 

costs associated with sections 7, 9, and 

10 of the Act. Baseline impacts also 

include the economic impacts of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation in the area 

evaluated in the DEA. In other words, 

those impacts associated with the listing 

of the species and not associated with 

critical habitat. Incremental impacts are 

those potential future economic impacts 

of conservation actions relating to the 

designation of critical habitat; these 

impacts would not be expected to occur 

without the designation of critical 

habitat. 

Baseline economic impacts are those 

impacts that result from listing and 

other conservation efforts for Peninsular 

bighorn sheep. Conservation efforts 

related to development activities 

constitute the majority of total baseline 

costs to areas proposed for critical 

habitat (more than 70 percent). Miningrelated impacts comprise 20 percent of 

the impacts; these impacts result from 

potential conservation effort costs 

associated with mine operations. 

Recreation and habitat management 

related impacts comprise about 9 

percent of the impacts. Post-designation 

baseline impacts are estimated to be 

approximately $92.5 million in present 

value terms using a 3 percent discount 

rate ($6.22 million annualized) over the 

next 20 years (2008 to 2027) in areas 

proposed as critical habitat (not 

including areas proposed or considered 

for exclusion under section 4(b)(2) of 

the Act). Stated in other terms, these 

post-designation baseline impacts are 

estimated to be approximately $67.4 

million ($6.36 million annualized) in 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17331 

present value terms using a 7 percent 

discount rate. 

Post-designation baseline impacts for 

areas proposed for exclusion are 

calculated separately from areas 

proposed as critical habitat. These 

impacts are related to continued habitat 

management practices within areas 

managed by the Agua Caliente Band of 

Cahuilla Indians Tribe and are 

estimated to be approximately $499,000 

($33,500 annualized) using a 3 percent 

discount rate. Stated in present value 

terms using a 7 percent discount rate, 

these impacts are estimated at $369,000 

($34,800 annualized). Additionally, 

post-designation baseline impacts for 

areas considered for exclusion were 

calculated separately from areas 

proposed as critical habitat. These 

impacts are related to habitat 

management, development, and 

transportation, and are estimated to be 

approximately $86.3 million ($4.95 

million annualized) using a 3 percent 

discount rate. Assuming a 7 percent 

discount rate, post-designation baseline 

impacts are estimated at $59.7 million 

($5.15 million annualized). 

The majority of potential incremental 

impacts attributed to the proposed 

revised critical habitat designation are 

related to habitat management 

conservation efforts. The economic 

analysis estimates potential incremental 

economic impacts in areas proposed as 

revised critical habitat over the next 20 

years to be $411,000 ($27,600 

annualized) assuming a 3 percent 

discount rate (not including areas 

proposed or considered for exclusion 

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

Assuming a 7 percent discount rate, 

these impacts were estimated to be 

approximately $306,000 ($28,900 

annualized). 

Incremental impacts for the tribal 

lands proposed for exclusion in the 

proposed revised critical habitat rule 

were calculated separately from other 

areas proposed as critical habitat. These 

impacts are related to habitat 

management and development and were 

estimated to be approximately $11.3 

million ($758,000 annualized) assuming 

a 3 percent discount rate. Assuming a 7 

percent discount rate, incremental 

impacts for areas proposed for exclusion 

are estimated at $8.31 million ($785,000 

annualized). Additionally, incremental 

impacts for areas considered for 

exclusion (Coachella Valley MSHCP) in 

the proposed revised critical habitat rule 

were also calculated separately from 

areas proposed as critical habitat. These 

impacts are related to forecast section 7 

consultations and were estimated to be 

approximately $8,850 ($595 annualized) 

assuming a 3 percent discount rate. 

Assuming a 7 percent discount rate, 

incremental impacts for areas 

considered for exclusion were estimated 

at $7,920 ($747 annualized). 

The economic analysis considers both 

economic efficiency and distributional 

effects. In the case of habitat 

conservation, efficiency effects generally 

reflect the ‘‘opportunity costs’’ 

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). The economic 

analysis also addresses how potential 

economic impacts are likely to be 

distributed, including an assessment of 

any local or regional impacts of habitat 

conservation and the potential effects of 

conservation activities on government 

agencies, private businesses, and 

individuals. The analysis measures lost 

economic efficiency associated with 

residential and commercial 

development and public projects and 

activities, such as economic impacts on 

water management and transportation 

projects, Federal lands, small entities, 

and the energy industry. This 

information can be used by decisionmakers to assess whether the effects of 

the revised designation might unduly 

burden a particular group or economic 

sector. 

The Service completed a final 

economic analysis (FEA) (November 25, 

2008) of the proposed designation that 

updates the DEA by removing impacts 

that were not considered probable or 

likely to occur. The FEA estimates that 

the potential economic effects of actions 

relating to the conservation of this DPS, 

including costs associated with sections 

4, 7, and 10 of the Act (baseline costs, 

not attributable to critical habitat), over 

the next 20 years will be $92.5 million 

applying a 3 percent discount rate, or 

$67.4 million using a discount rate of 7 

percent. The FEA also estimates total 

costs attributable solely to the 

designation of critical habitat for 

Peninsular bighorn sheep (incremental 

costs) to be $411,000 (present value at 

a 3 percent discount rate). After 

consideration of the impacts under 

section 4(b)(2) of the Act, we have not 

excluded any areas from the final 

critical habitat designations based on 

the identified economic impacts. 

The final economic analysis is 

available at http://www.regulations.gov 

or upon request from the Carlsbad Fish 

and Wildlife Office (see ADDRESSES

section). 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands 

within the geographical area occupied 

by the species at the time of listing on 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential for the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that, on the basis of the 

best scientific data available at the time 

of designation, the habitat that is 

identified, if protected or managed 

appropriately, could provide for the 

survival and recovery of the species. 

The identification of areas that 

contain features essential to the 

conservation of the species that can, if 

managed or protected, provide for the 

recovery of a species, is beneficial. The 

process of proposing and finalizing a 

critical habitat rule provides the Service 

with the opportunity to determine the 

physical and biological features 

essential to the conservation of the 

species within the geographical area 

occupied by the species at the time of 

listing, as well as to determine other 

areas essential for the conservation of 

the species. The designation process 

includes peer review and public 

comment on the identified physical and 

biological features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not be 

included in the areas the Service 

identifies as meeting the definition of 

critical habitat. 

The consultation provisions under 

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

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with the Service on actions that 

may affect critical habitat and must 

avoid destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects to 

critical habitat is a separate and 

different analysis from that of the effects 

to the species. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often result in effects to 

the species. However, the regulatory 

standard is different, as the jeopardy 

17332 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

analysis investigates the action’s impact 

on survival and recovery of the species, 

while the adverse modification analysis 

investigates the action’s effects to the 

designated habitat’s contribution to 

conservation. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a consultation is only required where 

there is a Federal nexus (an action 

authorized, funded, or carried out by 

any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict any actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure that 

the conservation role and function of 

those areas that contain the physical 

and biological features essential to the 

conservation of the species or of 

unoccupied areas that are essential for 

the conservation of the species are not 

appreciably reduced. Critical habitat 

designation alone, however, does not 

require private property owners to 

undertake specific steps toward 

recovery of the species. 

Once an agency determines that 

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

Act is necessary, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect critical habitat. However, if we 

determine through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

is initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation is initiated under section 

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

consultation is to avoid jeopardy to the 

species and adverse modification of its 

critical habitat, but not necessarily to 

manage critical habitat or institute 

recovery actions on critical habitat. 

Conversely, voluntary conservation 

efforts implemented through 

management plans institute proactive 

actions over the lands they encompass 

and are put in place to remove or reduce 

known threats to a species or its habitat 

and, therefore, implement recovery 

actions. 

We believe that in many instances the 

regulatory benefit of critical habitat is 

minimal when compared to the 

conservation benefit that can be 

achieved through implementing Habitat 

Conservation Plans (HCPs) under 

section 10 of the Act or other habitat 

management plans. The conservation 

achieved through such plans is typically 

greater than what we achieve through 

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

section 7(a)(2) consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7(a)(2) 

consultations only commit Federal 

agencies to preventing adverse 

modification of critical habitat caused 

by the particular project, and they are 

not committed to provide conservation 

or long-term benefits to areas not 

affected by the proposed action. Thus, 

implementation of an HCP or 

management plan that incorporates 

enhancement or recovery as the 

management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation. 

Another benefit of including lands in 

critical habitat is that designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for Peninsular 

bighorn sheep. In general, critical 

habitat designation always has 

educational benefits; however, in some 

cases, they may be redundant with other 

educational effects. For example, HCPs 

have significant public input and may 

largely duplicate the educational 

benefits of a critical habitat designation. 

Including lands in critical habitat also 

would inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

cooperation of non-Federal landowners. 

More than 60 percent of the United 

States is privately owned (National 

Wilderness Institute 1995), and at least 

80 percent of endangered or threatened 

species occur either partially or solely 

on private lands (Crouse et al. 2002, p. 

720). Stein et al. (1995, p. 400) found 

that only about 12 percent of listed 

species were found almost exclusively 

on Federal lands (90 to 100 percent of 

their known occurrences restricted to 

Federal lands) and that 50 percent of 

federally listed species are not known to 

occur on Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998, p. 

1407; Crouse et al. 2002, p. 720; James 

2002, p. 271). Building partnerships and 

promoting voluntary cooperation of 

landowners are essential to 

understanding the status of species on 

non-Federal lands, and are necessary to 

implement recovery actions such as 

reintroducing listed species, habitat 

restoration, and habitat protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we encouraged non-Federal 

landowners to enter into conservation 

agreements, based on a view that we can 

achieve greater species conservation on 

non-Federal land through such 

partnerships than we can through 

regulatory methods (December 2, 1996, 

61 FR 63854). 

Many private landowners, however, 

are wary of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

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

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17333 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996, pp. 5–6; 

Bean 2002, pp. 2–3; Conner and 

Mathews 2002, pp. 1–2; James 2002, pp. 

270–271; Koch 2002, pp. 2–3; Brook et 

al. 2003, pp. 1639–1643). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999, pp. 

1264–1265; Brook et al. 2003, pp. 1644– 

1648). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999, p. 1263; Bean 2002, 

p. 2; Brook et al. 2003, pp. 1644–1648). 

The magnitude of this negative outcome 

is greatly amplified in situations where 

active management measures (such as 

reintroduction, fire management, and 

control of invasive species) are 

necessary for species conservation (Bean 

2002, pp. 3–4). We believe that the 

judicious exclusion of specific areas of 

non-federally owned lands from critical 

habitat designations can contribute to 

species recovery and provide a superior 

level of conservation than critical 

habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

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

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus the 

benefits of excluding areas that are 

covered by partnerships or voluntary 

conservation efforts can often be high. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

The benefits of excluding lands with 

HCPs or other approved long-term 

management plans from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed as a result of the 

critical habitat designation. Most HCPs 

and other conservation plans take many 

years to develop, and upon completion, 

are consistent with the recovery 

objectives for listed species that are 

covered within the plan area. Many also 

provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine our efforts and partnerships 

as well. Our experience in 

implementing the Act has found that 

designation of critical habitat within the 

boundaries of management plans that 

provide conservation measures for a 

species is a disincentive to many 

entities which are either currently 

developing such plans, or 

contemplating doing so in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species are 

affected. Addition of a new regulatory 

requirement would remove a significant 

incentive for undertaking the time and 

expense of management planning. 

A related benefit of excluding lands 

covered by approved HCPs and 

management plans that cover listed 

species from critical habitat designation 

is the unhindered, continued ability it 

gives us to seek new partnerships with 

future plan participants, including 

States, counties, local jurisdictions, 

conservation organizations, and private 

landowners, which together can 

implement conservation actions that we 

would be unable to accomplish 

otherwise. Designating lands within 

approved management plan areas as 

critical habitat would likely have a 

negative effect on our ability to establish 

new partnerships to develop these 

plans, particularly plans that address 

landscape-level conservation of species 

and habitats. By excluding these lands, 

we preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

Both HCPs and Natural Communities 

Conservation Plan (NCCP)–HCP 

applications require consultation, which 

would review the effects of all HCPcovered activities that might adversely 

impact the species under a jeopardy 

standard, including possibly significant 

habitat modification, even without the 

critical habitat designation. 

Additionally, all other Federal actions 

that may affect the listed species still 

require consultation under section 

7(a)(2) of the Act, and we review these 

actions for possibly significant habitat 

modification in accordance with the 

jeopardy standard under section 7(a)(2) 

of the Act. 

Information provided in the previous 

sections applies to all the following 

discussions of benefits of inclusion or 

exclusion of critical habitat. 

Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships 

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

Secretary to exclude areas from critical 

habitat for other relevant impacts if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of critical 

habitat, unless he determines, based on 

the best scientific data available, that 

the failure to designate such area as 

critical habitat will result in the 

extinction of the species. As discussed 

above in the ‘‘Conservation Partnerships 

on Non-Federal Lands’’ section, we 

believe that designation can negatively 

impact the working relationships and 

conservation partnerships we have 

formed with private landowners. The 

Service recognizes that 80 percent of 

endangered or threatened species occur 

either partially or solely on private 

lands (Crouse et al. 2002) and we will 

only achieve recovery of federally listed 

species with the cooperation of private 

landowners. 

In making the following exclusions, 

we evaluated the benefits of designating 

these non-Federal lands that may not 

have a Federal nexus for consultation 

while considering if our existing 

partnerships have resulted, or will 

result, in greater conservation benefits 

to the Peninsular bighorn sheep and the 

physical or biological features essential 

to its conservation than a critical habitat 

designation. As discussed in the 

‘‘Benefits of Designating Critical 

Habitat’’ section above, conservation 

partnerships that result in 

implementation of an HCP or other 

management plan that considers 

enhancement or recovery as the 

management standard often provide as 

much or more benefit than consultation 

for critical habitat designation (the 

primary benefit of a designation). 

In considering the benefits of 

including lands in a designation that are 

covered by a current HCP or other 

management plan, we evaluate a 

number of factors to help us determine 

if the plan provides equivalent or 

greater conservation benefit than would 

likely result from consultation on a 

designation: 

(1) Whether the plan is complete and 

provides protection from destruction or 

adverse modification; 

(2) Whether there is a reasonable 

expectation the conservation 

management strategies and actions will 

be implemented for the foreseeable 

future, based on past practices, written 

guidance, or regulations; and 

(3) Whether the plan provides 

conservation strategies and measures 

17334 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

consistent with currently accepted 

principles of conservation biology. 

We balance the benefits of inclusion 

against the benefits of exclusion by 

considering the benefits of preserving 

partnerships and encouraging 

development of additional HCPs and 

other conservation plans in the future. 

Exclusion of Agua Caliente Band of 

Cahuilla Indians Tribal Lands 

The Agua Caliente Band of Cahuilla 

Indian’s Reservation encompasses over 

31,400 acres (12,707 ha) of land in the 

Coachella Valley, Riverside County, 

California (MBA 2001, p. 1–6). The 

Reservation contains tribal trust land, 

allotted trust land, and both tribal and 

non-Indian fee land, which is in a 

checkerboard pattern and interspersed 

among public lands owned or under the 

control of various Federal and state 

agencies, and privately owned land 

under the jurisdiction of the County of 

Riverside or one of three municipalities 

(the cities of Palm Springs, Cathedral 

City, and Rancho Mirage) (MBA 2001, p. 

1–6). The reservation includes 19,200 ac 

(7,770 ha), or 15 percent, of modeled 

Peninsular bighorn sheep habitat within 

the Coachella Valley (MBA 2001, p. 4– 

4). The Tribe regularly coordinates and 

works with the Service to ensure 

maximum protection of tribal trust 

resources, managing activities in such a 

way as to ensure compliance with the 

Act (MBA 2001, p. ES–2). This 

cooperative relationship provides the 

Tribe an opportunity to acknowledge 

the Service’s duty and authority while 

preserving tribal sovereignty and 

honoring traditional tribal land 

management practices. 

The Tribe identified 16 sensitive 

wildlife species (including Peninsular 

bighorn sheep) and two sensitive plant 

species that are covered by the 

conservation recommendations 

included in the 2001 Tribal 

Conservation Strategy (MBA 2001, p. 

ES–4). This conservation strategy 

includes: (1) Establishment of two 

Conservation Areas from which a 

Habitat Preserve shall either be created 

or funded; and (2) conservation 

measures for covered species (MBA 

2001, p. ES–4). One of the conservation 

areas is the Mountains and Canyons 

Conservation Area (MCCA) from which 

a multiple species Habitat Preserve will 

be created, the main component of the 

2001 Tribal Conservation Strategy (MBA 

2001, p. 5–1). The MCCA includes core 

habitat for Peninsular bighorn sheep in 

the San Jacinto and Santa Rosa 

Mountains, including undeveloped 

canyon mouths and alluvial fans (MBA 

2001, p. 5–2). The other conservation 

area is the Valley Floor Conservation 

Area, which applies a development 

mitigation fee program to fund 

acquisition of a Habitat Preserve 

benefitting species known to exist on 

the valley floor (MBA 2001, p. 5–1). The 

conservation measures include 

avoidance and minimization measures, 

assurances for establishment of the 

Habitat Preserve, adaptive management 

and monitoring, implementation and 

funding, amendment procedures, and 

conditions for changed and unforeseen 

circumstances (MBA 2001, p. ES–4). 

Habitat conservation within the 

MCCA has, to some extent, already been 

established by the Tribe with the 

creation of the Indian Canyons Heritage 

Park and controlled access to Tahquitz 

Canyon (MBA 2001, p. 5–2). Existing 

tribal conservation programs for Indian 

Canyons Heritage Park and Tahquitz 

Canyon (the Indian Canyons Master 

Plan and Tahquitz Canyon Wetland 

Conservation Plan, respectively) reflect 

the importance of natural resources to 

the Tribe and the Tribe’s intent and 

ability to manage these resources (MBA 

2001, p. 5–2). The Tribe will continue 

to manage these areas for their habitat 

values, including protection of covered 

species (MBA 2001, p. 5–2). Peninsular 

bighorn sheep, several of the covered 

species, and natural communities 

protected within the 2001 Tribal 

Conservation Strategy are known to 

occur in these canyon areas (MBA 2001, 

p. 5–2). Together these protected canyon 

areas provide over 2,600 ac (1,052 ha) of 

habitat to covered species (MBA 2001, 

p. 5–2). 

The primary goal of the Indian 

Canyons Heritage Park is to provide for 

long-term preservation of major natural 

and cultural resources (MBA 2001, p. 5– 

9). Secondary objectives are to preserve 

the ecological setting for the unique 

palm oases, and to preclude any 

development in the park that could have 

negative impacts (MBA 2001, p. 5–9). 

Other objectives are to restore the oases 

to their pristine ecological condition; 

provide adequate interpretation of the 

cultural resources; and provide 

adequate vehicular, foot, and equestrian 

access to the area (MBA 2001, p. 5–9). 

The management plan developed for the 

Indian Canyons Heritage Park 

(Dangermond Group, 2002) emphasizes 

the preservation of the following key 

habitats: wetland and riparian habitats 

found in canyons; desert scrub 

communities at the mouth of the Palm 

Canyon in the northern reaches of the 

Indian Canyons Heritage Park 

boundaries; and the Peninsular bighorn 

sheep migration corridor that runs eastwest between the San Jacinto and Santa 

Rosa Mountains (MBA 2001, p. 5–9). 

Tahquitz Canyon is located in the San 

Jacinto Mountains north of Indian 

Canyon Heritage Park (MBA 2001, p. 5– 

10). The Tribe owns approximately 500 

ac (202 ha) that includes Tahquitz 

Canyon and the alluvial fan at the 

mouth of the canyon (MBA 2001, p. 5– 

11). In the 1990’s, the Tribe 

commissioned a program aimed at the 

restoration of Tahquitz Creek (MBA 

2001, p. 5–10). Litter and other debris 

were removed, the effects of vandalism 

were mitigated, and human access to the 

area was controlled by gating the 

entrance to the canyon and 

implementing regular patrols by Tribal 

Rangers (MBA 2001, p. 5–10). To ensure 

the continued protection and restoration 

of the Tahquitz Canyon area, the Tribe 

prepared a Wetlands Conservation Plan 

(Connolly and Associates, 2000). With 

the plan’s adoption, the Tribe 

formalized its goals toward the 

maintenance and preservation of 

Tahquitz Canyon, including utilizing 

various measures to control the influx of 

exotic plant species (MBA 2001, p. 5– 

10). 

The 2001 Tribal Conservation Strategy 

provides adequate certainty that the 

Habitat Preserve will provide sufficient 

mitigation for species impacts and 

provide for conservation of the covered 

species and their habitat by meeting the 

following objectives: (1) Protecting a 

minimum of 90 percent of the habitat in 

the MCCA for each of the covered 

species and natural communities 

addressed in the 2001 Tribal 

Conservation Strategy; (2) maintaining 

the viability of essential ecological 

processes; and (3) maintaining the 

viability of linkages within conservation 

areas (MBA 2001, p. 5–13). Species 

specific avoidance and minimization 

measures for Peninsular bighorn sheep 

include the following: 

(1) Construct fences for projects 

adjacent to Peninsular bighorn sheep 

habitat to exclude sheep from urban 

areas where they might otherwise use 

urban sources of food and water; 

(2) Avoid the use of non-native 

vegetation along unfenced habitat 

interfaces where it may attract or 

concentrate bighorn sheep; 

(3) Promote the use of locally native 

vegetation and limit the planting of 

exotic species to areas not accessible by 

bighorn sheep; 

(4) Discourage the use of plants 

known to invade and degrade 

Peninsular bighorn sheep habitat; 

(5) Prohibit the use of any known 

toxic plants where they may be 

accessible to sheep or may potentially 

invade bighorn sheep habitat; 

(6) Prohibit illumination of mountain 

slopes with artificial lighting; and 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17335 

(7) Eliminate bluetongue and other 

vector-carried diseases by complying 

with the University of California 

guidelines for water features in new 

projects (MBA 2001, p. 5–28 and 5–29). 

Additionally, the Tribe commits to 

cooperating with State and Federal land 

management agencies to develop and 

implement a trails management program 

that reduces or eliminates trail-related 

activities that are detrimental to 

Peninsular bighorn sheep habitat (MBA 

2001, p. 5–28 and 5–29). 

The Draft Agua Caliente Band of 

Cahuilla Indians Trail Plan (Trails 

Management Plan), dated October 1, 

2000, is currently being implemented 

and was developed by the Tribe to 

provide trails use throughout the 

Reservation, including Peninsular 

bighorn sheep habitat. The Trails 

Management Plan is compatible with 

bighorn sheep conservation goals as 

well as affording a reasonable level of 

access to the public (MBA 2001, p. 4– 

4). Management of trails on tribal lands 

may include trail re-routings, 

limitations on trail use, and seasonal 

closures for some areas to benefit 

Peninsular bighorn sheep and other 

wildlife by decreasing human impact on 

habitat and disturbance to wildlife 

(MBA 2001, p. 4–4). 

The Tribe is currently cooperating 

with the Service to finalize the 2007 

draft Tribal HCP, which encompasses 

and updates the existing 2001 Tribal 

Conservation Strategy, as well as 

includes all of the other existing 

management plans described above that 

provide conservation to Peninsular 

bighorn sheep and their habitat. The 

2007 draft Tribal HCP covers 

approximately 36,720 ac (14,860 ha) of 

tribal lands (compared to 31,400 acres 

(12,707 ha) in the 2001 Tribal 

Conservation Strategy, an increase of 

5,320 acres (2,153 ha)), and includes 

conservation for 23 sensitive and 

federally listed species (‘‘covered 

species’’) (Helix Environmental 

Planning 2007, p. ES–4). The primary 

conservation mechanism provided by 

the 2007 draft Tribal HCP is the 

protection of significant areas of covered 

species habitat through creation of a 

habitat preserve and adoption of new 

development standards (Helix 

Environmental Planning 2007, p. ES–1). 

The Tribe’s purposes in adopting the 

2007 draft Tribal HCP are to: (1) 

Continue to exercise its long-standing 

tradition as a land use manager and 

steward of the natural resources in and 

around the Reservation by assuming a 

role as the primary manager of such 

resources and the land uses that impact 

them; and (2) establish consistency and 

streamline permitting requirements with 

respect to protected species by 

establishing one process that the Tribe 

oversees and implements (Helix 

Environmental Planning 2007, p. ES–1). 

In summary, the 2007 draft Tribal HCP 

will streamline the conservation for 

Peninsular bighorn sheep and other 

covered species by incorporating and 

updating the conservation and 

management practices identified in the 

existing management plans that have 

been implemented throughout the 

reservation to date. 

We are currently processing the 

Tribe’s application for a section 

10(a)(1)(B) permit based on the 2007 

draft Tribal HCP. We published a Notice 

of Availability for public review and 

comment in the Federal Register on 

October 12, 2007, with the public 

comment period closing January 10, 

2008. The approximately 4,790 ac (1,938 

ha) of tribal lands in critical habitat 

Units 1 (4,323 ac (1,749 ha)) and 2A 

(467 ac (189 ha)) fall within the 2007 

draft Tribal HCP area. The Tribe’s goals 

for conservation of Peninsular bighorn 

sheep are: (1) Conserving habitat within 

the 2007 draft Tribal HCP plan area 

(PCEs 1, 2, 3, 4, and 5); (2) maintaining 

connectivity, preventing fragmentation, 

and allowing movement within key 

linkage areas (PCEs 1 and 4); and (3) 

adaptively managing habitat quality and 

subpopulations/ewe groups to alleviate 

threats in the 2007 draft Tribal HCP 

plan area (Helix Environmental 

Planning 2007, p. 4–8). 

The 2007 draft Tribal HCP and 

associated implementing agreement, 

when finalized, will impose 

minimization and mitigation 

requirements in order to facilitate 

assembly of the habitat preserve and 

assure minimization and mitigation for 

impacts to covered species, including 

Peninsular bighorn sheep. This will 

provide for significant preservation and 

management of the physical and 

biological features essential to the 

conservation of Peninsular bighorn 

sheep and will help reach the recovery 

goals for this DPS. The 2007 draft Tribal 

HCP is comprehensive and addresses a 

broad range of management needs at the 

preserve and species levels that are 

intended to reduce the threats to 

Peninsular bighorn sheep. 

Peninsular bighorn sheep are 

primarily threatened by the direct and 

indirect effects of development and 

expansion of urban areas; human 

disturbance related to recreation; 

construction of roadways and power 

lines; and mineral extraction and 

mining operations. In order to remove or 

reduce threats to Peninsular bighorn 

sheep and the physical and biological 

features essential to the conservation of 

this DPS, conservation objectives of the 

2007 Draft Tribal HCP for Peninsular 

bighorn sheep include the following: 

(1) Ensure implementation of the 2007 

draft Tribal HCP is consistent with the 

recovery plan (Service 2000); 

(2) Conserve a minimum of 17,692 ac 

(7,160 ha) of habitat within the plan 

area; 

(3) Conserve 100 percent of Use Areas 

(areas defined by the 2007 draft Tribal 

HCP to have high functional value); 

(4) Conserve land necessary to 

maintain linkages/connectivity; 

(5) Minimize direct and indirect 

impacts from covered activities by 

ensuring implementation of 

development standards, including 

avoidance and minimization measures; 

(6) Minimize impacts from 

recreational activities; 

(7) Alleviate threat of disease transfer 

from livestock or nonnative wildlife; 

(8) Monitor population size and 

mortality rates; 

(9) Fund or undertake additional 

studies regarding this DPS; 

(10) Ensure that management action 

thresholds are routinely assessed; 

(11) Implement adaptive management; 

and 

(12) Conserve habitat quality through 

plan implementation (Helix 

Environmental Planning 2007, p. 4–9). 

The Tribe continues to work with the 

Service in a coordinated fashion in the 

context of government-to-government 

consultation, in part due to the 

development and finalization of the 

2007 draft Tribal HCP. This cooperation 

will ensure maximum protection of the 

trust resources of the Tribe and its 

members, allowing for an approach that 

acknowledges the duty and authority of 

the Service with respect to the Act 

while preserving tribal sovereignty and 

honoring traditional tribal land 

management practices (Helix 

Environmental Planning 2007, p. ES–2). 

The Tribe has provided assurances that 

adequate funding is available for 

implementation of the 2007 draft Tribal 

HCP throughout the duration of the 

proposed Section 10(a)(1)(B) permit and 

that conservation, mitigation, and 

management measures will be carried 

out as proposed (Helix Environmental 

Planning 2007, p. ES–11). The Tribe 

will provide administrative support to 

accomplish management 

responsibilities as well as funding to 

support the Tribe’s baseline assessment, 

inventory, and monitoring efforts 

defined in the plan (Helix 

Environmental Planning 2007, p. ES– 

11). Acquisition and management of the 

habitat preserve will be funded 

primarily through obligations of covered 

projects, with an endowment fund 

17336 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

established that provides funding for the 

Tribe’s ongoing costs to administer, 

manage, and monitor the habitat 

preserve in perpetuity (Helix 

Environmental Planning 2007, p. ES– 

11). 

The 1998 final listing rule for 

Peninsular bighorn sheep identified 

habitat loss (especially in canyon 

bottoms), degradation, and 

fragmentation associated with the 

proliferation of residential and 

commercial development, roads and 

highways, water projects, and vehicular 

and pedestrian recreational uses as 

primary threats to the Peninsular 

bighorn sheep. As described above, the 

Tribe’s ongoing management and 

conservation efforts provide 

enhancement of habitat by removing or 

reducing threats to this DPS and the 

physical and biological features 

essential to the conservation of the DPS. 

The tribal preserve encompasses habitat 

that supports identified core 

populations of this DPS and therefore 

provides for recovery. Based on the 

reasoning provided below, we excluded 

from Unit 1 and Unit 2A approximately 

4,790 ac (1,938 ha) of Agua Caliente 

Band of Cahuilla Indians tribally-owned 

or controlled lands from the Peninsular 

bighorn sheep final revised critical 

habitat designation under section 4(b)(2) 

of the Act. 

Benefits of Inclusion—Agua Caliente 

Band of Cahuilla Indians Tribal Lands 

The inclusion of the approximately 

4,790 ac (1,938 ha) of tribally-owned or 

controlled lands in the final designation 

could be beneficial because it identifies 

lands that require management for 

conservation of Peninsular bighorn 

sheep. The process of proposing and 

finalizing the revised critical habitat 

rule provided the Service with the 

opportunity to evaluate and refine the 

features essential to the conservation of 

the DPS within the geographical area 

occupied by the Peninsular bighorn 

sheep at the time of listing, as well as 

to evaluate whether there are other areas 

essential for the conservation of the 

DPS. The designation process included 

peer review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

implemented on tribal lands under the 

2001 Tribal Conservation Strategy, as 

well as those being planned and 

implemented in the approximately 

4,790 ac (1,938 ha) of tribally-owned or 

controlled lands within the 2007 draft 

Tribal HCP. The educational benefits of 

critical habitat designation derived 

through informing our tribal partners 

and other members of the public of 

areas important for the long-term 

conservation of the Peninsular bighorn 

sheep have already been and continue 

to be achieved through: (1) Development 

of the 2001 Tribal Conservation Strategy 

and 2007 draft Tribal HCP; (2) the 

original critical habitat designation 

process in 2001; and (3) publication of 

the proposed revisions to critical habitat 

in 2007 and 2008, along with notices of 

public comment periods, and the public 

hearing. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. 

There is the potential for future 

activities within the lands being 

excluded having a Federal nexus for the 

Peninsular bighorn sheep as a result of 

actions by the BLM (i.e., land exchange) 

and the Bureau of Indian Affairs (BIA). 

Therefore, including this area may 

provide some regulatory benefits under 

section 7(a) of the Act. 

However, the habitat management 

provided by the Agua Caliente Band of 

Cahuilla Indians through the 2001 

Tribal Conservation Strategy and the 

management measures it has 

memorialized in the 2007 draft Tribal 

HCP address conservation issues from a 

coordinated, integrated perspective 

rather than a piecemeal, project-byproject approach and will achieve more 

Peninsular bighorn sheep conservation 

on these tribal lands than we would 

likely achieve through section 7 

consultations involving consideration of 

critical habitat. The PCEs required by 

the Peninsular bighorn sheep benefit 

from the conservation measures 

implemented by the Tribe and outlined 

in the 2001 Tribal Conservation Strategy 

and 2007 draft Tribal HCP. In summary 

(and as identified above), the 

conservation measures currently being 

implemented by the Tribe through the 

2001 Tribal Conservation Strategy, and 

consistent with management actions 

memorialized in the draft 2007 Tribal 

HCP, include: 

(1) Ensure management measures are 

consistent with the recovery plan 

(Service 2000); 

(2) Conserve a minimum of 17,692 ac 

(7,160 ha) of habitat on tribal lands; 

(3) Conserve 100 percent of Use Areas 

(areas defined by the 2007 draft Tribal 

HCP to have high functional value); 

(4) Conserve land necessary to 

maintain linkages/connectivity; 

(5) Minimize direct and indirect 

impacts from covered activities by 

ensuring implementation of 

development standards, including 

avoidance and minimization measures; 

(6) Minimize impacts from 

recreational activities; 

(7) Alleviate threat of disease transfer 

from livestock or nonnative wildlife; 

(8) Monitor population size and 

mortality rates; 

(9) Fund or undertake additional 

studies regarding this DPS; 

(10) Ensure management action 

thresholds are routinely assessed; 

(11) Implement adaptive management; 

and 

(12) Conserve habitat quality (Helix 

Environmental Planning 2007, p. 4–9). 

Such measures will remove or reduce 

known threats to Peninsular bighorn 

sheep and its PCEs in Units 1 and 2A. 

The Tribe is committed to implementing 

conservation and management actions 

that would not generally result from the 

critical habitat designation (see 

‘‘Benefits of Designating Critical 

Habitat’’ section above). For example, 

critical habitat designation does not 

ensure: Habitat enhancement and 

restoration; functional connections to 

adjoining habitat; or monitoring of the 

Peninsular bighorn sheep (see 

discussion above). 

The Agua Caliente Band of Cahuilla 

Indians highly values its wildlife and 

natural resources, and is charged to 

preserve and protect these resources 

under the Tribal Constitution. 

Consequently, the Tribe historically has 

been committed to managing the habitat 

of wildlife on its lands, including the 

habitat of endangered and threatened 

species. In light of the demonstrated 

commitment by the Tribe to manage 

Peninsular bighorn sheep habitat to 

provide for the conservation of the DPS, 

the preferable regional scale of 

conservation planning utilized in the 

development of the 2001 Tribal 

Conservation Strategy and 2007 draft 

Tribal HCP, and the conservation that 

has been achieved through 

implementation of the 2001 Tribal 

Conservation Strategy and will occur 

through implementation of the 2007 

draft Tribal HCP, we conclude that the 

potential regulatory benefit of 

designating these areas in Units 1 and 

2A as critical habitat is minimal. 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17337 

Benefits of Exclusion—Agua Caliente 

Band of Cahuilla Indians Tribal Lands 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in most 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. Conversely, such 

designation is often viewed by tribes as 

unwarranted and an unwanted intrusion 

into tribal self governance, thus 

compromising the government-togovernment relationship essential to 

achieving our mutual goals of managing 

for healthy ecosystems upon which the 

viability of threatened and endangered 

species populations depend. 

This is supported by the following 

statement from the Tribe received 

during the comment period for the 

proposed rule: ‘‘Contrary to the 

requirements of the ESA, Executive 

Order 13,175, and the Secretarial Order, 

the proposed rule fails to defer to the 

Tribe’s own established standards, it 

discourages the Tribe from developing 

its own policies, and it intrudes on 

tribal management of its lands. 

Designation of critical habitat could 

delay approval of the [2007 draft] Tribal 

HCP, thus adding to the costs of 

preparing the Tribal HCP and 

undermining significant protections for 

the bighorn sheep. Designation of 

critical habitat also can be expected to 

increase the amount of time and 

financial resources necessary to 

undertake covered activities described 

in the [2007 draft] Tribal HCP, yet it is 

unlikely to yield material benefits for 

the bighorn sheep.’’ 

We developed a close partnership 

with the Agua Caliente Band of Cahuilla 

Indians through the development of the 

2001 Tribal Conservation Strategy and 

2007 draft Tribal HCP, which 

incorporate appropriate protections and 

management for Peninsular bighorn 

sheep, its habitat, and the features 

essential to the conservation of this 

DPS. These protections are consistent 

with statutory mandates under section 7 

of the Act to avoid destroying or 

adversely modifying critical habitat, and 

go beyond that prohibition by including 

active management and protection of 

connected habitat areas. By excluding 

4,790 ac (1,938 ha) of lands in Units 1 

and 2A from designation, we would (1) 

Eliminate an essentially redundant layer 

of regulatory review for projects covered 

by the 2001 Tribal Conservation 

Strategy and 2007 draft Tribal HCP; (2) 

help preserve our ongoing partnership 

with the Agua Caliente Band of Cahuilla 

Indians; (3) demonstrate our 

commitment and responsibilities in 

accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and Secretarial Order 

3206; and (4) encourage new 

partnerships with other tribes, 

landowners, and jurisdictions. These 

partnerships with HCP participants are 

critical for the conservation of 

Peninsular bighorn sheep. 

The Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Agua Caliente 

Band of Cahuilla Indians Tribal Lands 

In accordance with the Secretarial 

Order 3206, ‘‘American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act’’ (June 5, 1997); the 

President’s memorandum of April 29, 

1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2), 

we recognize the importance of tribal 

self-governance and the fundamental 

rights of tribes to set their own priorities 

and make decisions affecting their 

resources and distinctive ways of life. 

Because of the unique government-togovernment relationship between Indian 

tribes and the United States, it is 

important for us to establish and 

maintain an effective working 

relationship and mutual partnership 

with the Agua Caliente Band of Cahuilla 

Indians to promote the conservation of 

the Peninsular bighorn sheep and other 

sensitive species. As stated above, we 

believe that fish, wildlife, and other 

natural resources on tribal lands are 

better managed under tribal authorities, 

policies, and programs than through 

Federal regulation wherever possible 

and practicable. Based on this 

philosophy, we believe that, in most 

cases, designation of tribal lands as 

critical habitat provides very little 

additional benefit to threatened and 

endangered species. 

Furthermore, as discussed in the 

‘‘Benefits of Inclusion’’ section above, 

we believe the regulatory benefit of 

designating critical habitat on triballyowned or controlled lands would be 

low. The management plans that were 

developed by the Tribe in cooperation 

with the Service currently implement 

the Tribe’s conservation strategies and 

address conservation issues from a 

coordinated, integrated perspective 

rather than a piecemeal project-byproject approach. As a result, current 

management efforts and future 

management (as demonstrated through 

coordination to finalize the 2007 draft 

Tribal HCP) will achieve more 

Peninsular bighorn sheep conservation 

than we would achieve through 

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

section 7 consultations involving 

consideration of critical habitat. 

Conservation and management of 

Peninsular bighorn sheep habitat is 

essential to the survival and recovery of 

this DPS. Such conservation needs are 

typically not addressed through the 

application of the statutory prohibition 

on destruction or adverse modification 

of critical habitat. The specific 

conservation actions, avoidance and 

minimization measures, and 

management for Peninsular bighorn 

sheep and the features essential to its 

conservation provided by the Tribe’s 

management actions, and outlined in 

the 2001 Tribal Conservation Strategy 

and 2007 draft Tribal HCP, exceed any 

conservation value provided as a result 

of regulatory protections that may be 

afforded through a critical habitat 

designation. 

The Tribe’s conservation strategies 

provide as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. The 

benefits for the conservation of 

Peninsular bighorn sheep that would 

occur as a result of designating critical 

habitat (e.g., protection afforded through 

the section 7(a)(2) consultation process) 

are minimal compared to the overall 

conservation benefits for the DPS that 

have been realized through the 

implementation of the 2001 Tribal 

Conservation Strategy and will be 

realized through implementation of the 

2007 draft Tribal HCP. Furthermore, 

educational benefits that may be derived 

from a critical habitat designation are 

minimal and largely redundant to the 

educational benefits achieved through 

significant public, State, and local 

government input during the 

development of the tribal plans. 

17338 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

While it is likely that at least some 

future activities occurring on the lands 

being excluded would have a Federal 

nexus as a result of actions by the BLM 

(i.e., land exchange) and the BIA, we 

believe the benefits of including these 

lands in the designation are small. The 

Tribe currently implements the 2001 

Tribal Conservation Strategy that 

requires conservation of at least 85 

percent of Peninsular bighorn sheep 

habitat and 100 percent of bighorn 

sheep use areas and habitat linkages 

identified on tribal lands. Specifically, 

85 percent of the Peninsular bighorn 

sheep habitat is proposed for 

conservation, with 100 percent of the 

bighorn sheep use areas and habitat 

linkages proposed for conservation. 

Furthermore, the Tribe has 

demonstrated considerable efforts to 

work cooperatively with the Service to 

develop both the 2001 Tribal 

Conservation Strategy and 2007 draft 

Tribal HCP, implementation of which is 

to be consistent with the recovery 

strategy delineated in the Recovery Plan 

for Peninsular bighorn sheep. 

At least 17,692 ac (7,160 ha) of 

existing Peninsular bighorn sheep 

habitat in the plan area are to be 

conserved. Development projects that 

may occur in areas not identified for 

conservation within the boundaries of 

the 2007 draft Tribal HCP must still 

avoid impacts to Peninsular bighorn 

sheep to the maximum extent 

practicable. Additionally, educational 

benefits of critical habitat designation 

are already in place as a result of 

material provided on our Web site, and 

through the public notice-and-comment 

procedures required to establish the 

2007 draft Tribal HCP, and by our 

inclusion of these lands in the proposed 

rule to revise critical habitat. 

In contrast, the benefits of excluding 

these areas from critical habitat are more 

significant. The exclusion of these lands 

from critical habitat will help preserve 

the partnership we developed with the 

Tribe through the development of the 

2001 Tribal Conservation Strategy and 

2007 draft Tribal HCP that incorporate 

protections and management of this 

DPS’s essential physical and biological 

features, and promote tribal selfgovernance. The habitat protections 

provided by the Tribe’s management of 

its resources are consistent with the 

mandates under section 7 of the Act to 

avoid destruction or adverse 

modification of critical habitat and go 

beyond that prohibition by including 

active management and protection of 

essential habitat areas. Designation of 

critical habitat alone does not achieve 

recovery or require management of 

those lands identified in the critical 

habitat rule. 

Additionally, this established 

partnership demonstrates a continued 

commitment to conservation by the 

Tribe and aids in fostering additional 

partnerships for the benefit of all 

sensitive species on both tribally-owned 

or controlled lands and other private 

lands. Furthermore, we believe the 

exclusion of these tribal lands is 

consistent with the Act and all 

applicable policies and guidance 

(Secretarial Order 3206, ‘‘American 

Indian Tribal Rights, Federal-Tribal 

Trust Responsibilities, and the 

Endangered Species Act’’ (June 5, 1997); 

the President’s memorandum of April 

29, 1994, ‘‘Government-to-Government 

Relations with Native American Tribal 

Governments’’ (59 FR 22951); Executive 

Order 13175; and the relevant provision 

of the Departmental Manual of the 

Department of the Interior (512 DM 2). 

In summary, in making our final 

decision with regard to these 

approximately 4,790 ac (1,938 ha) of 

tribal lands, we considered several 

factors including (1) The importance of 

our government-to-government 

relationship with the Agua Caliente 

Band of Cahuilla Indians; (2) our 

effective, ongoing conservation 

partnership with the Tribe; (3) the 

sustained commitment by the Tribe to 

manage its lands in a manner consistent 

with the conservation of the DPS, as 

evidenced by the Tribe’s ongoing 

management of Peninsular bighorn 

sheep habitat (as set forth in the 2001 

Tribal Conservation Strategy (MBA 

2001), formally adopted by the Tribe 

through its Tribal Council on November 

12, 2002); and (4) the Tribe’s continued 

commitment and cooperation with us in 

the finalization of the first tribal 

multiple-species HCP in the United 

States (i.e., 2007 draft Tribal HCP). 

The importance of tribal selfgovernance and the fundamental rights 

of tribes to set their own priorities and 

make decisions affecting their resources 

and distinctive ways of life weighs 

heavily in favor of excluding these tribal 

lands from the final designation of 

critical habitat for the Peninsular 

bighorn sheep. We believe the benefits 

of including these lands in the final 

critical habitat designation are minimal 

because the Tribe’s management of 

these lands provides substantial 

conservation benefits for the DPS, and 

we believe existing and future 

management will continue to provide 

preservation and management for, and 

features essential to, the conservation of 

Peninsular bighorn sheep, which will 

collectively help reach the recovery 

goals for this DPS. Additionally, the 

educational benefits of designation are 

small and largely redundant to those 

derived through the process of working 

with the Tribe to develop its 

conservation management plans and the 

identification of those areas most 

important to the DPS. By excluding 

these lands from designation, we would 

eliminate a largely redundant layer of 

regulatory review for a limited set of 

projects, and help preserve our ongoing, 

critical partnership with the Tribe while 

encouraging new partnerships with 

other tribes, landowners, and 

jurisdictions. Therefore, pursuant to 

section 4(b)(2) of the Act, we are 

excluding from Unit 1 and Unit 2A 

approximately 4,790 ac (1,938 ha) of 

tribally-owned or controlled lands that 

meet the definition of critical habitat 

from this final revised critical habitat 

designation. 

Exclusion Will Not Result in Extinction 

of the Species—Agua Caliente Band of 

Cahuilla Indians Tribal Lands 

The Agua Caliente Band of Cahuilla 

Indians has demonstrated its 

commitment to manage Peninsular 

bighorn sheep habitat in a manner 

consistent with the conservation of the 

DPS. The 2001 Tribal Conservation 

Strategy, other ongoing tribal resource 

management, and 2007 draft Tribal 

HCP, when final, have provided and 

will provide protection and 

management, in perpetuity, of lands that 

meet the definition of critical habitat for 

Peninsular bighorn sheep in Units 1 and 

2A. Additionally, the jeopardy standard 

of section 7 of the Act and routine 

implementation of conservation 

measures through the section 7 process 

provide assurances that the DPS will not 

go extinct as a result of this exclusion. 

Therefore, we determined that the 

exclusion of 4,790 ac (1,938 ha) of 

tribally-owned or controlled lands from 

the final designation of critical habitat 

for the Peninsular bighorn sheep will 

not result in extinction of the DPS. 

Exclusion of Coachella Valley Multiple 

Species Habitat Conservation Plan 

(Coachella Valley MSHCP) Lands 

The Coachella Valley MSHCP is a 

large-scale, multi-jurisdictional habitat 

conservation plan encompassing about 

1.1 million ac (445,156 ha) in the 

Coachella Valley of Riverside County 

(Units 1 and 2A). The Coachella Valley 

MSHCP addresses 27 listed and unlisted 

‘‘covered species,’’ including Peninsular 

bighorn sheep. Participants in the 

Coachella Valley MSHCP include eight 

cities (Cathedral City, Coachella, Indian 

Wells, Indio, La Quinta, Palm Desert, 

Palm Springs, and Rancho Mirage); the 

County of Riverside, including the 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17339 

Riverside County Flood Control and 

Water Conservation District, Riverside 

County Parks and Open Space District, 

Riverside County Waste Management 

District; the Coachella Valley 

Association of Governments; Coachella 

Valley Water District; Imperial Irrigation 

District; California Department of 

Transportation; California Department 

of Parks and Recreation; Coachella 

Valley Mountains Conservancy; and the 

Coachella Valley Conservation 

Commission (the created joint powers 

regional authority). The Coachella 

Valley MSHCP was designed to 

establish a multiple species habitat 

conservation program that minimizes 

and mitigates the expected loss of 

habitat and the incidental take of 

covered species. On October 1, 2008, the 

Service issued a single incidental take 

permit (TE–104604–0) under section 

10(a)(1)(B) of the Act to 19 permittees 

under the Coachella Valley MSHCP for 

a period of 75 years. 

Implementation of the Coachella 

Valley MSHCP will establish an 

approximately 721,457 ac (291,964 ha) 

Reserve System comprised of 557,100 ac 

(225,451 ha) of Existing Conservation 

Lands, up to 29,990 ac (12,137 ha) of 

Complementary Conservation, and up to 

8,777 ac (3,552 ha) of Public and QuasiPublic lands. The permittees will 

mitigate for the impacts of the 

incidental take of covered species by 

conserving 96,400 ac (39,012 ha) [7,500 

ac (3,035 ha) of existing local permittee 

lands and 88,900 ac (35,977 ha) of new 

conservation] of habitat and perpetually 

managing 125,590 ac (50,825 ha) within 

the Reserve System. The location and 

configuration of the 88,900 ac (35,977 

ha) of new local permittee mitigation 

lands and the 21,390 ac (8,656 ha) that 

will be acquired through State and 

Federal contributions are not precisely 

mapped, but will be assembled from the 

21 conservation areas identified in the 

Coachella Valley MSHCP. Within each 

conservation area, 90 percent of each 

natural community within each 

jurisdiction will be conserved and no 

more than 10 percent of the habitat will 

be lost. 

In general, the design of the overall 

Reserve System was intended to capture 

core habitats, ecological processes, and 

biological corridors/linkages. The 

permittees collection and use of 

development mitigation fees, landfill 

tipping fees, and other funding specified 

in the Coachella Valley MSHCP and 

related documents will be used to 

acquire, protect, and manage the 

Reserve System in perpetuity. The 

permittees, the State, and Service will 

work cooperatively to enter into a 

Memorandum of Understanding or other 

appropriate agreements with Federal, 

State, and non-governmentalorganization land managers to 

cooperatively manage the Existing 

Conservation Lands in conformance 

with the MSHCP. Additionally, the 

Coachella Valley MSHCP includes 

measures to avoid and minimize 

impacts on covered species resulting 

from covered activities. 

The Coachella Valley MSHCP Reserve 

System includes about 165,856 ac 

(67,120 ha) of Peninsular bighorn sheep 

habitat of which 38,759 ac (15,685 ha) 

meet the definition of critical habitat. 

Approximately 135,630 ac (54,888 ha) of 

the Peninsular bighorn sheep habitat in 

the Reserve System are Existing 

Conservation Lands that are expected to 

be managed consistent with the 

Coachella Valley MSHCP, of this 

approximately 38,477 ac (15,571 ha) 

meet the definition of critical habitat. 

Specific conservation goals, 

conservation objectives, and required 

measures for Peninsular bighorn sheep 

in the Coachella Valley MSHCP include 

providing a total of 18,619 ac (7,535 ha) 

of occupied or suitable habitat within 

the Santa Rosa and San Jacinto 

Mountains, Snow Creek/Windy Point, 

and Cabazon Conservation Areas. This 

acreage goal is proposed to be attained 

through the conservation of private 

lands in the three conservation areas 

within the Coachella Valley MSHCP 

Plan Area boundary. When completed, 

the proposed Coachella Valley MSHCP 

Reserve System will protect core habitat 

areas and provide critical linkages for 

Peninsular bighorn sheep in perpetuity. 

The Coachella Valley MSHCP 

contains conservation goals, 

conservation objectives, and required 

measures that will ameliorate the 

negative effects of development on 

Peninsular bighorn sheep habitat. The 

required measures include criteria for 

locating development, conditional 

provisions regarding unauthorized 

trails, areas where 10 percent of the 

private land may be developed, special 

provision areas, parcels subject to the 

Habitat Evaluation and Acquisition 

Negotiation Strategy (HANS), Major 

Amendment areas, and special 

disturbance areas relating to water and 

flood control agencies. Collectively, 

these measures provide a basis for 

evaluating, restricting, and configuring 

development and related activities to 

ensure that such projects are consistent 

with the Coachella Valley MSHCP. 

The Coachella Valley MSHCP also 

contains a number of avoidance, 

minimization, and mitigation measures 

as follows: (1) Proposed covered 

activities in Peninsular bighorn sheep 

habitat will be prohibited during the 

lambing season (January 1 though June 

30) unless otherwise authorized through 

a Minor Amendment with concurrence 

from the State and Service; (2) 

landscaping with toxic plants will be 

prohibited in Peninsular bighorn sheep 

habitat, and existing facilities with toxic 

plants must complete a plan and 

schedule for removing or preventing 

access to toxic plants within one year of 

permit issuance; and (3) all water tank 

construction and operation and 

maintenance will require 1:1 mitigation 

by acreage, no public access, native 

landscaping, and location away from 

sensitive areas. Additionally, the 

Coachella Valley MSHCP also provides 

for the implementation of land use 

agency guidelines to avoid and 

minimize the direct and indirect effects 

associated with development. 

The Coachella Valley MSHCP 

(Section 7.3.3.2) addressed the Public 

Use and Trails Management on Reserve 

Lands within the Santa Rosa and San 

Jacinto Mountains Conservation Area. 

The Santa Rosa and San Jacinto 

Mountains Conservation Area includes 

trails that cross both Federal and nonFederal land. The Coachella Valley 

MSHCP addresses impacts to Peninsular 

bighorn sheep for the construction of 

specified trails and for the use of 

identified trails on non-Federal land. 

The BLM is pursuing a section 7 

consultation for the components of the 

coordinated Plan on Federal lands 

within the Reserve System. The U.S. 

Forest Service will determine whether 

public use and trails management will 

require consultation with the Service 

pursuant to section 7 of the Act. Impacts 

to Peninsular bighorn sheep associated 

with the public use and trails 

management plan are addressed in the 

Coachella Valley MSHCP. The 

Coachella Valley MSHCP describes the 

implementation of a focused research 

program to evaluate the effects of 

recreational trail use on Peninsular 

bighorn sheep health, behavior, habitat 

selection, and long-term population 

dynamics. 

The Desert Water Authority is not a 

permittee and its lands are not subject 

to the conservation requirements of the 

Coachella Valley MSHCP through any 

discretionary authority of the 

permittees. Therefore, 293 ac (119 ha) of 

lands within Unit 1 and Unit 2A owned 

by DWA have not been excluded from 

the final revised critical habitat 

designation under the Coachella Valley 

MSHCP. 

The 1998 final listing rule for 

Peninsular bighorn sheep identified 

habitat loss (especially in canyon 

bottoms), degradation, and 

fragmentation associated with the 

17340 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

proliferation of residential and 

commercial development, roads and 

highways, water projects, and vehicular 

and pedestrian recreational uses as 

primary threats to Peninsular bighorn 

sheep. As described above, the 

Coachella Valley MSHCP management 

and conservation efforts provide 

enhancement of habitat by removing or 

reducing threats to Peninsular bighorn 

sheep and the physical and biological 

features essential to the conservation of 

this DPS. The Coachella Valley MSHCP 

Plan Area encompasses habitat that 

supports identified core populations of 

this DPS and therefore provides for 

recovery. The implementation of the 

conservation goals, conservation 

objectives, and required measures; 

avoidance and minimization measures; 

and management for Peninsular bighorn 

sheep provided for in the Coachella 

Valley MSHCP exceed any conservation 

value provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. 

Based on the reasoning provided 

below, we excluded from Unit 1 and 

Unit 2A approximately 38,759 ac 

(15,685 ha) of private and permitteeowned or controlled lands or lands 

under the jurisdiction of the permittees 

within the Santa Rosa and San Jacinto 

Mountains, Snow Creek/Windy Point, 

and Cabazon Conservation Areas within 

Coachella Valley MSHCP Plan Area 

boundary (see Coachella Valley MSHCP, 

Volume 1, Sections 4.3.1, 4.3.3, and 

4.3.21) from the Peninsular bighorn 

sheep final revised critical habitat 

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

Act. Covered activities conducted or 

approved by the Coachella Valley 

MSHCP permittees are subject to the 

conservation requirements of the 

Coachella Valley MSHCP. Of the 38,759 

ac (15,685 ha) excluded under the 

Coachella Valley MSHCP, 

approximately 38,477 ac (15,571 ha) are 

anticipated to be conserved under the 

plan. Approximately 282 ac (114 ha) or 

0.7 percent of the acres excluded under 

the Coachella Valley MSHCP are 

permitted for development consistent 

with the MSHCP. 

Benefits of Inclusion—Coachella Valley 

MSHCP 

The inclusion of approximately 

38,759 ac (15,685 ha) of private and 

permittee-owned or controlled lands 

within the Coachella Valley MSHCP 

could be beneficial because it identifies 

lands that require management for 

conservation of Peninsular bighorn 

sheep. The process of proposing and 

finalizing the revised critical habitat 

rule provided the Service with the 

opportunity to evaluate and refine the 

features essential to the conservation of 

the DPS within the geographical area 

occupied by Peninsular bighorn sheep 

at the time of listing, as well as to 

evaluate whether there are other areas 

essential for the conservation of the 

DPS. The designation process included 

peer review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

planned and implemented in the 

approximately 38,759 ac (15,685 ha) of 

private and permittee-owned or 

controlled lands within the Coachella 

Valley MSHCP. As described above, the 

process of developing the Coachella 

Valley MSHCP has involved several 

partners including (but not limited to) 

the eight participating local 

jurisdictions, Riverside County, 

California Department of Fish and 

Game, and Federal agencies. The 

educational benefits of critical habitat 

designation derived through informing 

Coachella Valley MSHCP partners and 

other members of the public of areas 

important for the long-term 

conservation of this DPS have already 

been and continue to be achieved 

through: (1) Development and 

implementation of the Coachella Valley 

MSHCP; (2) the original designation 

process in 2001; and (3) publication of 

the proposed revisions to critical habitat 

in 2007 and 2008, including notices of 

public comment periods, and the public 

hearings. 

The consultation provisions under 

section 7 of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. 

There is the potential for future 

activities within the lands being 

excluded having a Federal nexus for 

Peninsular bighorn sheep as a result of 

actions by Agua Caliente Band of 

Cahuilla Indians, BLM, Army Corps of 

Engineers, and the Federal Highway 

Administration. Therefore, including 

this area may provide some regulatory 

benefits under section 7 of the Act. 

However, the Coachella Valley 

MSHCP addresses conservation issues 

from a coordinated, integrated 

perspective rather than a piecemeal, 

project-by-project approach (as would 

occur on these lands under sections 7 

and 10 of the Act absent this regional 

plan) and will arguably achieve more 

Peninsular bighorn sheep conservation 

within the Coachella Valley MSHCP 

Plan Area than through section 7 

consultations involving consideration of 

critical habitat. The PCEs required by 

Peninsular bighorn sheep will benefit by 

the conservation objectives and required 

measures outlined in the Coachella 

Valley MSHCP. 

In summary, these conservation 

measures include but are not limited to: 

preservation and protection of core 

Peninsular bighorn sheep habitat in 

perpetuity, maintenance of water 

sources, criteria for locating 

development to minimize effects to 

Peninsular bighorn sheep, 

implementation of minimization and 

mitigation measures and land use 

agency guidelines, conditional 

provisions regarding unauthorized 

trails, and monitoring the effects of 

trails and population monitoring. Such 

measures will remove or reduce known 

threats to Peninsular bighorn sheep and 

its PCEs in Unit 1 and Unit 2A. The 

Coachella Valley MSHCP will ensure 

that conservation and management 

actions take place that are not required 

by critical habitat designation (see 

‘‘Benefits Of Designating Critical 

Habitat’’ section above). For example, 

critical habitat designation does not 

ensure habitat protection; enhancement 

and restoration; maintenance of water 

sources; functional linkages to adjoining 

habitat; or monitoring of Peninsular 

bighorn sheep (see discussion above). 

In light of the preferable regional scale 

of conservation planning used in the 

development of the Coachella Valley 

MSHCP and the conservation that will 

occur under the Coachella Valley 

MSHCP, we conclude that the potential 

regulatory benefit of designating these 

areas in Unit 1 and Unit 2A as critical 

habitat is minimal. We acknowledge 

that a very small portion of the area we 

are excluding from critical habitat is not 

anticipated to be conserved under the 

Coachella Valley MSHCP, 

approximately 282 ac (114 ha) or 0.7 

percent of the area excluded. Therefore, 

the benefits of inclusion of these lands 

within designated critical habitat are 

higher than for those lands anticipated 

for conservation under the Coachella 

Valley MSHCP. 

Benefits of Exclusion—Coachella Valley 

MSHCP 

Regional and subregional HCPs foster 

an ecosystem-based approach to habitat 

conservation planning, and once 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17341 

developed, conservation issues are 

addressed through a coordinated 

approach. However, these large and 

often costly regional plans are voluntary 

for the local jurisdiction(s) that pursue 

this approach, in the sense that they 

could require landowners (e.g., 

homeowners, developers) to consult 

with the Service individually for a 

section 10 permit. As a result, the local 

jurisdiction would incur no costs 

associated with the landowner’s need 

for a section 10 permit, requiring the 

landowner to obtain this permit prior to 

issuance of a building permit. However, 

this approach would result in 

uncoordinated, ‘‘patchy’’ conservation 

that would likely not further the 

recovery of federally listed species. 

Rather, by voluntarily developing these 

regional plans (versus individual 

landowner HCPs), the coordinated 

landscape-scale conservation results in 

preservation of interconnected linkage 

areas and populations that support 

recovery of listed species. 

We recognize that once an HCP is 

permitted, implementation of the 

conservation measures is not voluntary 

in order for permittees to receive 

incidental take coverage. However, the 

benefits of excluding lands under the 

scenario described above are: (1) 

Retaining and fostering the existing 

partnership and working relationship 

with all stakeholders; and (2) 

encouraging future regional HCP 

development or development of other 

species/habitat conservation plans. 

Additionally, exclusion of an HCP (such 

as the Coachella Valley MSHCP) 

demonstrates our good faith effort and 

working relationships, which should 

encourage initiation and completion of 

other HCPs. 

We developed close partnerships with 

all participating entities through the 

development of the Coachella Valley 

MSHCP, which incorporates appropriate 

protections and management for 

Peninsular bighorn sheep, its habitat, 

and the features essential to the 

conservation of this DPS. By excluding 

38,759 ac (15,685 ha) of lands in Unit 

1 and Unit 2A from designation, we are 

eliminating an essentially redundant 

layer of regulatory review for projects 

covered by the Coachella Valley 

MSHCP, helping to preserve our 

ongoing partnership with the plan 

participants, and encouraging new 

partnerships with other landowners and 

jurisdictions. These partnerships with 

the Coachella Valley MSHCP 

participants are critical for the 

conservation of Peninsular bighorn 

sheep. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Coachella Valley 

MSHCP 

As discussed in the ‘‘Benefits of 

Inclusion—Coachella Valley MSHCP’’ 

section above, we believe the regulatory 

benefit of designating critical habitat on 

private lands, permittee-owned or 

controlled lands covered by the 

Coachella Valley MSHCP would be low. 

The Coachella Valley MSHCP addresses 

conservation issues from a coordinated, 

integrated perspective rather than a 

piecemeal project-by-project approach 

and will achieve more Peninsular 

bighorn sheep conservation than we 

would achieve through multiple site-bysite, project-by-project, section 7 

consultations involving consideration of 

critical habitat. 

Conservation and management of 

Peninsular bighorn sheep habitat is 

essential to the survival and recovery of 

this DPS. Such conservation needs are 

typically not addressed through the 

application of the statutory prohibition 

on destruction or adverse modification 

of critical habitat. Even considering the 

small percentage of lands meeting the 

definition of critical habitat that may be 

developed in the future, the specific 

conservation actions (conservation goal, 

conservation objectives, and required 

measures); avoidance and minimization 

measures; and monitoring and 

management for Peninsular bighorn 

sheep and the features essential to its 

conservation provided by the Coachella 

Valley MSHCP exceed any conservation 

value provided as a result of regulatory 

protections that may be afforded 

through a critical habitat designation. 

The Coachella Valley MSHCP provides 

as much or more conservation benefit 

than a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. The 

benefits for the conservation of 

Peninsular bighorn sheep that would 

occur as a result of designating these 

lands as critical habitat (e.g., protection 

afforded through the section 7(a)(2) 

consultation process) are minimal 

compared to the overall conservation 

benefits for the DPS that will be realized 

through the implementation of the 

Coachella Valley MSHCP. Furthermore, 

educational benefits that may be derived 

from a critical habitat designation are 

minimal and largely redundant to the 

educational benefits achieved through 

significant public, State, and local 

government input during the 

development and implementation of the 

Coachella Valley MSHCP. 

We developed close partnerships with 

the 19 Coachella Valley MSHCP 

permittees through the development of 

this regional HCP that incorporates 

appropriate protections and 

management of this DPS’s essential 

physical and biological features. Those 

protections are consistent with the 

mandates under section 7 of the Act to 

avoid destruction or adverse 

modification of critical habitat and go 

beyond that prohibition by including 

active management and protection of 

essential habitat areas. Designation of 

critical habitat alone does not achieve 

recovery or require management of 

those lands identified in the critical 

habitat rule. We believe the 

conservation benefits for Peninsular 

bighorn sheep that would occur as a 

result of designating those 38,759 ac 

(15,685 ha) in Unit 1 and Unit 2A as 

critical habitat (e.g., protection afforded 

through the section 7(a)(2) consultation 

process) is minimal compared to the 

overall conservation benefits for the 

DPS that will be realized through the 

implementation of the Coachella Valley 

MSHCP. 

Furthermore, the benefits to recovery 

of inclusion primarily have already been 

met through the identification of those 

areas most important to the DPS. By 

excluding these lands from critical 

habitat, we are eliminating a largely 

redundant layer of regulatory review for 

a limited set of projects on non-Federal 

lands that are addressed by the MSHCP 

and we are helping to preserve our 

ongoing partnerships with the 

permittees and to encourage new 

partnerships with other landowners and 

jurisdictions. Those partnerships, and 

the landscape-level, multiple-species 

conservation planning efforts they 

promote, are critical for the 

conservation of Peninsular bighorn 

sheep. Designating critical habitat on 

non-Federal lands within the Coachella 

Valley MSHCP could have a detrimental 

effect to our partnerships with the 19 

Coachella Valley MSHCP permittees 

and could be a significant disincentive 

to the establishment of future 

partnerships and HCPs with other 

landowners. 

We reviewed and evaluated the 

exclusion of 38,759 ac (15,685 ha) of 

private and permittee-owned or 

controlled lands within the Coachella 

Valley MSHCP plan area from the final 

revised critical habitat designation for 

Peninsular bighorn sheep and 

determined that the benefits of 

excluding these lands in Unit 1 and 

Unit 2A outweigh the benefits of 

including them. As discussed above, the 

MSHCP will provide for significant 

preservation and management of habitat 

for and features essential to the 

conservation of Peninsular bighorn 

17342 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

sheep and will help reach the recovery 

goals for this DPS. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Coachella Valley 

MSHCP 

In keeping with our analysis and 

conclusion detailed in our biological 

opinion for the Coachella Valley 

MSHCP (Service 2008, pp. 643–644), we 

determined that the exclusion of 38,759 

ac (15,685 ha) of private lands and 

permittee-owned or controlled lands 

within the Coachella Valley MSHCP 

Plan Area from the final designation of 

critical habitat for Peninsular bighorn 

sheep will not result in the extinction of 

the DPS. The Coachella Valley MSHCP 

provides protection and management, in 

perpetuity, of lands that meet the 

definition of critical habitat for the DPS 

in Unit 1 and Unit 2A. We acknowledge 

that some lands excluded within the 

Coachella Valley MSHCP are permitted 

for development (approximately 0.7 

percent); however, the potential loss of 

this habitat will not result in the 

extinction of Peninsular bighorn sheep. 

Additionally, the jeopardy standard of 

section 7 of the Act and routine 

implementation of conservation 

measures through the section 7 process 

provide assurances that the DPS will not 

go extinct as a result of this exclusion. 

Required Determinations 

Takings—Executive Order 12630 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating critical habitat for 

Peninsular bighorn sheep in a takings 

implications assessment. Critical habitat 

designation does not affect landowner 

actions that do not require Federal 

funding or permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this final 

revised designation of critical habitat for 

Peninsular bighorn sheep does not pose 

significant takings implications. 

Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under E.O. 12866. OMB 

bases its determination upon the 

following four criteria: 

(1) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Civil Justice Reform—Executive Order 

12988 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

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

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

the DPS within the designated areas to 

assist the public in understanding the 

habitat needs of the Peninsular bighorn 

sheep. 

Federalism—Executive Order 13132 

In accordance with E.O. 13132 

(Federalism), this final 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, these 

final critical habitat designations with 

appropriate State resource agencies in 

California. During the public comment 

periods, we contacted appropriate State 

and local agencies and jurisdictions, 

and invited them to comment on the 

proposed revised critical habitat 

designation for the Peninsular bighorn 

sheep. In total, we responded to 3 letters 

received during these comment periods 

from local governments (see ‘‘Summary 

of Comments and Recommendations’’ 

section). The designations may have 

some benefit to these governments in 

that the areas that contain the features 

essential to the conservation of the 

species are more clearly defined, and 

the primary constituent elements of the 

habitat essential to the conservation of 

the species are specifically identified. 

This information does not alter where 

and what federally sponsored activities 

may occur. However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Energy Supply, Distribution, Or Use— 

Executive Order 13211 

E.O. 13211 requires agencies to 

prepare Statements of Energy Effects 

when undertaking certain actions. This 

revision to critical habitat for the 

Peninsular bighorn sheep is not 

considered a significant regulatory 

action under E.O. 12866. OMB has 

provided guidance for implementing 

this Order that outlines nine outcomes 

that may constitute ‘‘a significant 

adverse effect’’ when compared without 

the regulatory action under 

consideration. The economic analysis 

finds that none of these criteria are 

relevant to this analysis. Thus, based on 

information in the economic analysis 

(Appendix A), energy-related impacts 

associated with Peninsular bighorn 

sheep conservation activities within the 

areas included in the final designation 

of critical habitat are not expected. 

Sunrise Powerlink is the only entity 

involved in the production of energy. 

Although Sunrise Powerlink is likely to 

incur incremental Peninsular bighorn 

sheep conservation costs, these costs are 

not expected to be sufficient to be noted 

as a ‘‘significant adverse effect.’’ Over 

the next 20 years, Sunrise Powerlink is 

forecast to incur total expenses of 

$4,030, discounted at seven percent. 

These impacts are not sufficient to 

reduce electricity production 

appreciably, or to increase the cost of 

energy production or delivery by more 

than one percent. Thus, the incremental 

impacts associated with critical habitat 

designation for Peninsular bighorn 

sheep are unlikely to be of sufficient 

magnitude to affect energy production 

or delivery. As such, the final 

designation of critical habitat is not 

expected to significantly affect energy 

supplies, distribution, or use, and a 

Statement of Energy Effects is not 

required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, the Service 

makes the following findings: 

(1) This rule does not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

tribal governments, or the private sector, 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’ 

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17343 

governments,’’ with two exceptions. It 

excludes ‘‘a condition of federal 

assistance.’’ It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program,’’ unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and tribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

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

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were 

Medicaid; Aid to Families with 

Dependent Children work programs; 

Child Nutrition; Food Stamps; Social 

Services Block Grants; Vocational 

Rehabilitation State Grants; Foster Care, 

Adoption Assistance, and Independent 

Living; Family Support Welfare 

Services; and Child Support 

Enforcement.) ‘‘Federal private sector 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon the private sector, except (i) a 

condition of Federal assistance; or (ii) a 

duty arising from participation in a 

voluntary Federal program.’’ 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under section 7 of the 

Act, the only regulatory effect is that 

Federal agencies must ensure that their 

actions do not destroy or adversely 

modify critical habitat. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it would 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 FEA concludes that there are 

no incremental impacts resulting from 

this rulemaking that may be borne by 

small entities. Potential incremental 

impacts stemming from the Sunrise 

Powerlink project will be borne by San 

Diego Gas and Electric and a mine 

owned by Creole Corporation, a 

subsidiary of Texas Industries, Inc.; 

however, both of these entities are also 

not small governments. 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 802(2)), whenever 

an agency is required to publish a notice 

of rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

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

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Small Business Regulatory 

Enforcement Fairness Act amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a 

certification statement of the factual 

basis for certifying that the rule will not 

have a significant economic impact on 

a substantial number of small entities. 

In this final rule, we are certifying that 

the critical habitat designation for 

Peninsular bighorn sheep will not have 

a significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, small entities include 

small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the revised 

designation of critical habitat for the 

Peninsular bighorn sheep would affect a 

substantial number of small entities, we 

considered the number of small entities 

affected within particular types of 

economic activities, such as residential 

and commercial development. We 

considered each industry or category 

individually to determine if certification 

is appropriate. In estimating the 

numbers of small entities potentially 

affected, we also considered whether 

their activities have any Federal 

involvement; some kinds of activities 

are unlikely to have any Federal 

involvement and thus will not be 

affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

In areas where the DPS is present, 

Federal agencies already are required to 

consult with us under section 7 of the 

Act on activities they fund, permit, or 

implement that may affect Peninsular 

bighorn sheep (see ‘‘Section 7 

Consultation’’ section) or their critical 

habitat. Future consultations to avoid 

the destruction or adverse modification 

of critical habitat would be incorporated 

into the existing consultation process. In 

the case of completed consultations for 

ongoing Federal activities, however, the 

Federal agency may be required to 

reinitiate consultation (see ‘‘Application 

of the ‘Adverse Modification’ Standard’’ 

section). Designation of critical habitat, 

in that case, could result in an 

additional economic impact on small 

entities. 

In our DEA of the proposed revision 

of critical habitat, we evaluated the 

potential economic effects on small 

business entities resulting from 

conservation actions related to the 

proposed revision of critical habitat for 

the Peninsular bighorn sheep. The 

analysis is based on the estimated 

incremental impacts associated with the 

rulemaking as described in section 2 of 

the analysis. In the DEA, we evaluated 

the potential economic effects on small 

business entities resulting from 

implementation of conservation actions 

related to the proposed revision to 

critical habitat for the Peninsular 

bighorn sheep. The economic analysis 

identifies the estimated incremental 

impacts associated with the proposed 

rulemaking as described in chapters 2 

through 7, and evaluates the potential 

17344 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

for economic impacts related to activity 

categories including species 

management, development, mining, 

recreation, transportation, and utilities 

construction and management. The 

analysis concludes that there are no 

incremental impacts resulting from this 

rulemaking that may be borne by small 

entities. The FEA confirms this 

conclusion. 

In summary, we considered whether 

the final rule to revise critical habitat 

would result in a significant economic 

impact on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that this rule 

will not have a significant economic 

impact on a substantial number of small 

entities. Therefore, a regulatory 

flexibility analysis is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C 801 et seq.) 

Under the Small Business Regulatory 

Enforcement Fairness Act, this rule is 

not a major rule. Our detailed 

assessment of the economic effects of 

this designation is described in the 

economic analysis. Based on the effects 

identified in the economic analysis, we 

believe that this rule will not have an 

annual effect on the economy of $100 

million or more, will not cause a major 

increase in costs or prices for 

consumers, and will not have significant 

adverse effects on competition, 

employment, investment, productivity, 

innovation, or the ability of U.S.-based 

enterprises to compete with foreignbased enterprises. Refer to the final 

economic analysis for a discussion of 

the effects of this determination (see 

ADDRESSES for information on obtaining 

a copy of the final economic analysis). 

National Environmental Policy Act 

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

It is our position that, outside the 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 

do not need to prepare environmental 

analyses as defined by NEPA in 

connection with designating critical 

habitat under the Act. We published a 

notice outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit Court of Appeals (Douglas 

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

1995), cert. denied 516 U.S. 1042 

(1996)). 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995. This rule will 

not impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

federally recognized Tribes on a 

government-to-government basis. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal-Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with tribes in developing programs for 

healthy ecosystems, to acknowledge that 

tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to tribes. 

We have identified tribal lands that 

meet the definition of critical habitat for 

the Peninsular bighorn sheep, and we 

are excluding all tribal lands from the 

final revised critical habitat designation 

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

‘‘Exclusion of Agua Caliente Band of 

Cahuilla Indians Tribal Lands’’ section 

for a detailed discussion). 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http://www.regulations.gov 

and http://www.fws.gov/carlsbad/. 

Author(s) 

The primary authors of this 

rulemaking are staff at the Carlsbad Fish 

and Wildlife Office, Carlsbad, 

California. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

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

‘‘Sheep, bighorn’’ under ‘‘MAMMALS’’ 

in the List of Endangered and 

Threatened Wildlife to read as follows: 

§ 17.11 Endangered and threatened 

wildlife. 

* * * * * 

(h) * * * 

Species 

Historic range 

Vertebrate 

population 

where endangered 

or threatened 

Status When listed Critical 

habitat 

Special 

rules Common name Scientific name 

MAMMALS

* * * * * * * 

Sheep, Peninsular bighorn.Ovis canadensis nelsoni U.S.A. (western 

conterminous States), 

Canada (southwestern), Mexico 

(northern).

U.S.A. 

(CA) 

Peninsular 

Ranges.

E 634 17.95(a) NA 

* * * * * * * 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17345 

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

‘‘Bighorn Sheep (Peninsular Ranges) 

(Ovis canadensis)’’ to read as follows: 

§ 17.95 Critical habitat—fish and wildlife. 

(a) Mammals. 

* * * * * 

Peninsular Bighorn Sheep, a Distinct 

Population Segment of Desert Bighorn 

Sheep (Ovis canadensis nelsoni) 

(1) Critical habitat units are depicted 

for Riverside, San Diego, and Imperial 

Counties, California, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the Peninsular 

bighorn sheep are: 

(i) Moderate to steep, open slopes (20 

to 60 percent) and canyons, with canopy 

cover of 30 percent or less (below 4,600 

ft (1,402 m) elevation in Peninsular 

Ranges) that provide space for 

sheltering, predator detection, rearing of 

young, foraging and watering, mating, 

and movement within and between ewe 

groups; 

(ii) Presence of a variety of forage 

plants, indicated by the presence of 

shrubs (e.g., Ambrosia spp., Caesalpinia 

spp., Hyptis spp., Sphaeralcea spp., 

Simmondsia spp.), that provide a 

primary food source year round, grasses 

(e.g., Aristida spp., Bromus spp.) and 

cacti (e.g., Opuntia spp.) that provide a 

source of forage in the fall, and forbs 

(e.g., Plantago spp., Ditaxis spp.) that 

provide a source of forage in the spring; 

(iii) Steep, rugged slopes (60 percent 

slope or greater) (below 4,600 ft (1,402 

m) elevation in Peninsular Ranges) that 

provide secluded space for lambing and 

terrain for predator evasion; 

(iv) Alluvial fans, washes, and valley 

bottoms that provide important foraging 

areas where nutritious and digestible 

plants can be more readily found during 

times of drought and lactation, and that 

provide and maintain habitat 

connectivity by serving as travel routes 

between and within ewe groups, 

adjacent mountain ranges, and 

important resource areas (e.g., foraging 

areas and escape terrain); and 

(v) Intermittent and permanent water 

sources that are available during 

extended dry periods and provide 

relatively nutritious plants and drinking 

water. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, roads, and other paved areas) 

and the land on which they are located 

existing within the legal boundaries on 

the effective date of this rule. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS 1:24,000 maps, and 

critical habitat units were then mapped 

using Universal Transverse Mercator 

(UTM) coordinates. 

(5) Note: Index map of critical habitat 

units for the Peninsular bighorn sheep 

follows: 

BILLING CODE 4310–55–P 

17346 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

BILLING CODE 4310–55–C 


ER14AP09.000</GPH>
Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17347 

(6) Unit 1: San Jacinto Mountains, 

Riverside County, California. 

(i) From USGS 1:24,000 quadrangles 

Desert Hot Springs, Palm Springs, and 

San Jacinto Peak, and White Water. 

Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 534134, 

3750021; 534465, 3749681; 534495, 

3749651; 534495, 3749651; 534495, 

3749651; 534495, 3749651; 534572, 

3749621; 534997, 3749456; 534792, 

3749102; 534885, 3748934; 535128, 

3748785; 535310, 3748807; 535426, 

3748822; 535471, 3748798; 535663, 

3748697; 535706, 3748674; 535706, 

3748652; 535713, 3748654; 535739, 

3748650; 535777, 3748637; 535816, 

3748627; 535834, 3748623; 535944, 

3748624; 535999, 3748624; 536000, 

3748624; 536000, 3748624; 536056, 

3748624; 536056, 3748656; 536499, 

3748909; 536927, 3749153; 537308, 

3748794; 538009, 3748134; 538064, 

3748082; 538535, 3747726; 538535, 

3747703; 538566, 3747702; 538901, 

3747449; 539106, 3747293; 539235, 

3746550; 539240, 3746463; 539240, 

3746455; 539254, 3746181; 539088, 

3745848; 539244, 3745133; 539265, 

3745144; 539562, 3745200; 539802, 

3745192; 540194, 3745168; 540512, 

3745097; 540512, 3744900; 540511, 

3744851; 540512, 3744847; 540521, 

3744847; 540607, 3744847; 540817, 

3744847; 540900, 3744846; 540900, 

3744846; 540900, 3744800; 540900, 

3744700; 540900, 3744600; 540900, 

3744500; 540900, 3744400; 540800, 

3744400; 540800, 3744300; 540700, 

3744300; 540600, 3744300; 540600, 

3744200; 540511, 3744200; 540504, 

3744200; 540500, 3744200; 540500, 

3744100; 540503, 3744100; 540511, 

3744100; 540600, 3744100; 540600, 

3744000; 540600, 3743900; 540700, 

3743900; 540700, 3743800; 540700, 

3743700; 540800, 3743700; 540800, 

3743600; 540800, 3743500; 540885, 

3743501; 540883, 3743342; 540906, 

3743287; 541006, 3743322; 541083, 

3743355; 541120, 3743355; 541171, 

3743337; 541299, 3743351; 541300, 

3743300; 541300, 3743238; 541300, 

3743231; 541300, 3743200; 541321, 

3743200; 541321, 3743196; 541330, 

3743175; 541340, 3743160; 541342, 

3743145; 541344, 3743138; 541348, 

3743132; 541353, 3743127; 541356, 

3743122; 541362, 3743116; 541368, 

3743111; 541371, 3743107; 541376, 

3743098; 541377, 3743095; 541379, 

3743089; 541378, 3743082; 541380, 

3743075; 541381, 3743070; 541384, 

3743064; 541388, 3743060; 541395, 

3743053; 541403, 3743047; 541413, 

3743043; 541417, 3743039; 541425, 

3743032; 541431, 3743027; 541436, 

3743021; 541441, 3743015; 541446, 

3743006; 541451, 3742997; 541455, 

3742984; 541464, 3742970; 541466, 

3742965; 541471, 3742960; 541477, 

3742957; 541484, 3742953; 541494, 

3742952; 541501, 3742951; 541508, 

3742951; 541523, 3742951; 541527, 

3742951; 541532, 3742952; 541539, 

3742952; 541547, 3742951; 541555, 

3742952; 541559, 3742952; 541562, 

3742951; 541571, 3742947; 541581, 

3742942; 541589, 3742939; 541594, 

3742933; 541600, 3742929; 541607, 

3742925; 541616, 3742918; 541624, 

3742914; 541633, 3742910; 541640, 

3742907; 541651, 3742905; 541659, 

3742905; 541659, 3742904; 541653, 

3742806; 541679, 3742804; 541670, 

3742734; 541637, 3742740; 541625, 

3742693; 541648, 3742693; 541662, 

3742659; 541682, 3742612; 541683, 

3742557; 541683, 3742510; 541683, 

3742508; 541670, 3742508; 541661, 

3742507; 541661, 3742507; 541661, 

3742554; 541615, 3742554; 541616, 

3742507; 541598, 3742507; 541598, 

3742517; 541517, 3742516; 541476, 

3742516; 541436, 3742516; 541411, 

3742516; 541400, 3742516; 541395, 

3742516; 541377, 3742516; 541376, 

3742507; 541385, 3742432; 541375, 

3742432; 541375, 3742390; 541374, 

3742350; 541368, 3742344; 541374, 

3742328; 541354, 3742228; 541329, 

3742228; 541330, 3742217; 541331, 

3742061; 541331, 3742036; 541331, 

3742016; 541332, 3741932; 541340, 

3741932; 541369, 3741932; 541369, 

3741922; 541370, 3741805; 541370, 

3741803; 541370, 3741745; 541357, 

3741745; 541334, 3741730; 541294, 

3741729; 541261, 3741729; 541261, 

3741677; 541271, 3741677; 541271, 

3741641; 541271, 3741640; 541271, 

3741640; 541271, 3741632; 541126, 

3741630; 541100, 3741630; 541100, 

3741600; 541100, 3741500; 541100, 

3741400; 541100, 3741281; 541176, 

3741283; 541189, 3741189; 541192, 

3741167; 541203, 3741100; 541300, 

3741100; 541400, 3741100; 541500, 

3741100; 541600, 3741100; 541600, 

3741000; 541600, 3740900; 541600, 

3740800; 541600, 3740700; 541600, 

3740600; 541653, 3740533; 541700, 

3740495; 541700, 3740400; 541800, 

3740400; 541900, 3740400; 541934, 

3740399; 541935, 3740284; 542001, 

3740285; 542000, 3740200; 542000, 

3740135; 541936, 3740129; 541942, 

3740080; 541965, 3740053; 541966, 

3740025; 541939, 3740025; 541815, 

3740026; 541744, 3740027; 541718, 

3740027; 541660, 3740028; 541660, 

3740023; 541656, 3739951; 541628, 

3739931; 541607, 3739915; 541605, 

3739900; 541600, 3739900; 541600, 

3739876; 541596, 3739853; 541587, 

3739805; 541586, 3739800; 541584, 

3739767; 541582, 3739736; 541584, 

3739712; 541586, 3739702; 541584, 

3739694; 541585, 3739694; 541586, 

3739694; 541586, 3739694; 541587, 

3739693; 541587, 3739693; 541587, 

3739693; 541588, 3739693; 541588, 

3739692; 541588, 3739692; 541589, 

3739692; 541589, 3739692; 541589, 

3739691; 541589, 3739691; 541590, 

3739691; 541590, 3739690; 541590, 

3739690; 541590, 3739689; 541590, 

3739689; 541591, 3739689; 541591, 

3739688; 541591, 3739688; 541591, 

3739687; 541591, 3739687; 541591, 

3739686; 541591, 3739686; 541590, 

3739675; 541587, 3739630; 541587, 

3739629; 541587, 3739629; 541587, 

3739628; 541587, 3739628; 541587, 

3739627; 541587, 3739627; 541587, 

3739626; 541587, 3739626; 541587, 

3739625; 541587, 3739625; 541587, 

3739624; 541588, 3739624; 541588, 

3739623; 541588, 3739623; 541588, 

3739623; 541588, 3739622; 541589, 

3739622; 541589, 3739621; 541589, 

3739621; 541589, 3739621; 541590, 

3739620; 541590, 3739620; 541590, 

3739620; 541591, 3739619; 541591, 

3739619; 541591, 3739619; 541592, 

3739618; 541592, 3739618; 541592, 

3739618; 541593, 3739618; 541593, 

3739618; 541593, 3739617; 541594, 

3739617; 541594, 3739617; 541595, 

3739617; 541595, 3739616; 541596, 

3739616; 541596, 3739616; 541596, 

3739616; 541597, 3739616; 541597, 

3739616; 541598, 3739616; 541598, 

3739616; 541600, 3739615; 541600, 

3739613; 541563, 3739614; 541552, 

3739562; 541589, 3739529; 541590, 

3739528; 541608, 3739475; 541612, 

3739464; 541663, 3739439; 541692, 

3739425; 541695, 3739423; 541700, 

3739418; 541700, 3739400; 541716, 

3739400; 541731, 3739383; 541733, 

3739381; 541755, 3739364; 541790, 

3739336; 541792, 3739334; 541800, 

3739324; 541800, 3739300; 541700, 

3739300; 541700, 3739296; 541644, 

3739296; 541644, 3739061; 541644, 

3738884; 541866, 3738884; 541933, 

3738882; 541933, 3738883; 541952, 

3738884; 541952, 3738835; 541969, 

3738835; 541969, 3738764; 541969, 

3738731; 541969, 3738713; 541969, 

3738680; 541976, 3738680; 541951, 

3738614; 541948, 3738608; 541944, 

3738600; 541900, 3738600; 541900, 

3738500; 541900, 3738419; 541900, 

3738415; 541900, 3738400; 542000, 

3738400; 542000, 3738300; 542000, 

3738200; 542000, 3738100; 541900, 

3738100; 541900, 3738000; 541900, 

3737900; 541900, 3737800; 541800, 

3737800; 541800, 3737700; 541800, 

3737600; 541800, 3737500; 541800, 

17348 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3737400; 541800, 3737300; 541800, 

3737200; 541800, 3737100; 541800, 

3737000; 541654, 3736803; 541356, 

3736400; 540393, 3735196; 540363, 

3735192; 540248, 3735176; 540154, 

3735163; 539396, 3735059; 539294, 

3735160; 539283, 3735171; 539017, 

3735437; 538757, 3735957; 538752, 

3735967; 538746, 3735980; 538742, 

3735987; 538295, 3736400; 538230, 

3736767; 538230, 3736770; 538226, 

3736793; 538192, 3736985; 538020, 

3738154; 538050, 3738381; 538054, 

3738413; 538089, 3738670; 538554, 

3740001; 538562, 3740021; 538570, 

3740046; 538536, 3741559; 538504, 

3741614; 538492, 3741634; 538054, 

3742384; 537372, 3743203; 537372, 

3743212; 537364, 3743212; 537345, 

3743236; 537276, 3743318; 537194, 

3743416; 536728, 3743936; 536656, 

3744024; 536634, 3744087; 536100, 

3744346; 535828, 3744823; 535817, 

3744844; 535732, 3744992; 535666, 

3745108; 535665, 3745109; 535413, 

3745553; 535253, 3746458; 535247, 

3746495; 534970, 3746845; 534866, 

3746975; 534865, 3746975; 534176, 

3746882; 534115, 3746840; 534063, 

3746805; 533524, 3746435; 531977, 

3746795; 531267, 3747050; 530862, 

3747228; 530502, 3747386; 530397, 

3748001; 530372, 3748150; 530502, 

3749549; 530595, 3749599; 530839, 

3749730; 531024, 3749829; 531605, 

3749724; 531646, 3749716; 531687, 

3749709; 531689, 3749708; 531720, 

3749703; 531721, 3749703; 531721, 

3749703; 531733, 3749728; 531811, 

3749890; 532087, 3750462; 532854, 

3750401; 533216, 3750372; 533936, 

3750224; 534059, 3750098; thence 

returning to 534134, 3750021. 

(ii) Note: Map of Unit 1, San Jacinto 

Mountains (Map 2) follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17349 

BILLING CODE 4310–55–C 


ER14AP09.001</GPH>
17350 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(7) Unit 2A: North Santa Rosa 

Mountains, Riverside County, 

California. 

(i) From USGS 1:24,000 quadrangles 

Cathedral City, Clark Lake NE, La 

Quinta, Martinez Mountain, Palm 

Springs, Palm View Peak, Rabbit Peak, 

Rancho Mirage, Toro Peak, and Valerie. 

Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 548200, 

3735505; 548200, 3735500; 548211, 

3735500; 548229, 3735493; 548242, 

3735488; 548253, 3735483; 548278, 

3735474; 548285, 3735471; 548300, 

3735465; 548300, 3735400; 548400, 

3735400; 548500, 3735400; 548500, 

3735480; 548515, 3735478; 548523, 

3735478; 548560, 3735481; 548580, 

3735488; 548591, 3735491; 548607, 

3735496; 548608, 3735496; 548608, 

3735496; 548644, 3735490; 548659, 

3735497; 548673, 3735503; 548690, 

3735520; 548716, 3735546; 548720, 

3735550; 548736, 3735569; 548768, 

3735606; 548773, 3735615; 548783, 

3735631; 548778, 3735657; 548778, 

3735659; 548799, 3735678; 548821, 

3735687; 548825, 3735689; 548844, 

3735682; 548868, 3735674; 548874, 

3735672; 548890, 3735664; 548892, 

3735663; 548909, 3735654; 548955, 

3735628; 549021, 3735590; 549038, 

3735580; 549075, 3735551; 549085, 

3735544; 549101, 3735534; 549131, 

3735513; 549131, 3735526; 549125, 

3735553; 549111, 3735581; 549105, 

3735594; 549077, 3735654; 549074, 

3735660; 549074, 3735680; 549089, 

3735687; 549102, 3735682; 549097, 

3735720; 549094, 3735745; 549093, 

3735749; 549102, 3735757; 549132, 

3735749; 549145, 3735755; 549157, 

3735754; 549169, 3735738; 549180, 

3735744; 549175, 3735804; 549186, 

3735810; 549195, 3735817; 549205, 

3735819; 549238, 3735827; 549245, 

3735846; 549250, 3735853; 549251, 

3735854; 549278, 3735863; 549285, 

3735868; 549280, 3735880; 549283, 

3735883; 549285, 3735886; 549307, 

3735894; 549331, 3735897; 549350, 

3735888; 549369, 3735874; 549387, 

3735876; 549392, 3735881; 549418, 

3735882; 549440, 3735896; 549472, 

3735885; 549482, 3735882; 549484, 

3735894; 549462, 3735909; 549457, 

3735936; 549469, 3735963; 549475, 

3735976; 549488, 3735971; 549491, 

3735983; 549476, 3736004; 549481, 

3736011; 549496, 3736013; 549480, 

3736033; 549471, 3736057; 549476, 

3736063; 549495, 3736054; 549524, 

3736058; 549532, 3736058; 549543, 

3736072; 549566, 3736077; 549559, 

3736095; 549544, 3736095; 549536, 

3736099; 549533, 3736119; 549533, 

3736122; 549534, 3736122; 549535, 

3736125; 549536, 3736127; 549538, 

3736129; 549540, 3736131; 549542, 

3736134; 549544, 3736136; 549545, 

3736138; 549545, 3736139; 549545, 

3736142; 549545, 3736143; 549543, 

3736147; 549540, 3736154; 549532, 

3736170; 549540, 3736182; 549548, 

3736181; 549550, 3736180; 549552, 

3736180; 549554, 3736181; 549556, 

3736181; 549558, 3736182; 549560, 

3736183; 549562, 3736184; 549563, 

3736186; 549564, 3736187; 549565, 

3736189; 549566, 3736190; 549566, 

3736193; 549566, 3736194; 549566, 

3736195; 549566, 3736198; 549566, 

3736208; 549565, 3736223; 549565, 

3736226; 549565, 3736230; 549567, 

3736233; 549568, 3736235; 549571, 

3736237; 549573, 3736239; 549579, 

3736240; 549587, 3736243; 549612, 

3736250; 549636, 3736257; 549656, 

3736252; 549662, 3736252; 549670, 

3736252; 549686, 3736237; 549699, 

3736225; 549708, 3736216; 549711, 

3736214; 549715, 3736211; 549718, 

3736209; 549722, 3736208; 549725, 

3736207; 549729, 3736207; 549733, 

3736208; 549738, 3736209; 549742, 

3736211; 549761, 3736197; 549759, 

3736139; 549767, 3736122; 549786, 

3736105; 549767, 3736083; 549769, 

3736079; 549756, 3736075; 549727, 

3736047; 549720, 3736025; 549719, 

3736021; 549712, 3736002; 549700, 

3735923; 549700, 3735922; 549700, 

3735920; 549700, 3735919; 549700, 

3735918; 549700, 3735917; 549700, 

3735916; 549700, 3735915; 549700, 

3735914; 549701, 3735913; 549701, 

3735912; 549701, 3735911; 549701, 

3735910; 549702, 3735909; 549702, 

3735908; 549702, 3735907; 549703, 

3735906; 549703, 3735905; 549704, 

3735904; 549704, 3735903; 549705, 

3735902; 549705, 3735901; 549706, 

3735900; 549707, 3735900; 549707, 

3735899; 549708, 3735898; 549709, 

3735897; 549709, 3735896; 549710, 

3735896; 549711, 3735895; 549712, 

3735894; 549713, 3735894; 549714, 

3735893; 549714, 3735893; 549715, 

3735892; 549743, 3735876; 549745, 

3735880; 549781, 3735853; 549789, 

3735826; 549791, 3735825; 549791, 

3735824; 549791, 3735824; 549791, 

3735823; 549791, 3735822; 549791, 

3735821; 549791, 3735821; 549791, 

3735820; 549791, 3735819; 549791, 

3735818; 549791, 3735818; 549791, 

3735817; 549792, 3735816; 549792, 

3735815; 549792, 3735815; 549793, 

3735814; 549793, 3735813; 549794, 

3735812; 549795, 3735812; 549795, 

3735811; 549796, 3735811; 549796, 

3735810; 549797, 3735810; 549798, 

3735809; 549799, 3735809; 549800, 

3735808; 549800, 3735800; 549800, 

3735800; 549796, 3735781; 549806, 

3735744; 549822, 3735720; 549826, 

3735715; 549829, 3735715; 549829, 

3735714; 549829, 3735713; 549829, 

3735712; 549829, 3735712; 549829, 

3735711; 549829, 3735710; 549830, 

3735709; 549830, 3735709; 549830, 

3735708; 549831, 3735707; 549831, 

3735706; 549832, 3735706; 549832, 

3735705; 549833, 3735704; 549834, 

3735704; 549834, 3735703; 549835, 

3735703; 549836, 3735702; 549837, 

3735702; 549837, 3735701; 549824, 

3735668; 549838, 3735639; 549839, 

3735612; 549849, 3735609; 549848, 

3735608; 549848, 3735608; 549848, 

3735607; 549848, 3735606; 549848, 

3735605; 549848, 3735605; 549848, 

3735604; 549848, 3735603; 549848, 

3735602; 549849, 3735602; 549849, 

3735601; 549849, 3735600; 549849, 

3735599; 549850, 3735599; 549850, 

3735598; 549851, 3735597; 549851, 

3735596; 549823, 3735574; 549824, 

3735562; 549827, 3735533; 549826, 

3735518; 549825, 3735502; 549830, 

3735469; 549808, 3735401; 549818, 

3735395; 549817, 3735395; 549817, 

3735394; 549817, 3735393; 549817, 

3735392; 549816, 3735392; 549816, 

3735391; 549816, 3735390; 549816, 

3735389; 549816, 3735389; 549816, 

3735388; 549816, 3735387; 549816, 

3735386; 549816, 3735386; 549816, 

3735385; 549817, 3735384; 549817, 

3735383; 549817, 3735383; 549818, 

3735382; 549818, 3735381; 549818, 

3735380; 549819, 3735380; 549820, 

3735379; 549820, 3735378; 549821, 

3735378; 549821, 3735377; 549822, 

3735377; 549953, 3735297; 549954, 

3735296; 549954, 3735296; 549955, 

3735296; 549956, 3735295; 549957, 

3735295; 549958, 3735295; 549959, 

3735295; 549960, 3735295; 549961, 

3735295; 549962, 3735295; 549963, 

3735295; 549964, 3735295; 549965, 

3735296; 549967, 3735296; 549967, 

3735297; 549968, 3735297; 549969, 

3735298; 549969, 3735298; 549970, 

3735299; 549971, 3735300; 549971, 

3735301; 549972, 3735301; 549978, 

3735298; 549990, 3735306; 550026, 

3735349; 550020, 3735384; 550027, 

3735388; 550056, 3735480; 550056, 

3735481; 550057, 3735483; 550056, 

3735589; 550057, 3735589; 550103, 

3735589; 550104, 3735589; 550105, 

3735590; 550106, 3735591; 550106, 

3735592; 550107, 3735594; 550108, 

3735595; 550109, 3735596; 550110, 

3735597; 550111, 3735598; 550111, 

3735598; 550127, 3735614; 550129, 

3735617; 550135, 3735612; 550136, 

3735614; 550137, 3735616; 550139, 

3735617; 550140, 3735619; 550141, 

3735621; 550142, 3735622; 550142, 

3735624; 550143, 3735626; 550144, 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17351 

3735628; 550145, 3735630; 550146, 

3735631; 550147, 3735633; 550147, 

3735635; 550148, 3735637; 550149, 

3735639; 550150, 3735641; 550150, 

3735642; 550151, 3735644; 550151, 

3735646; 550152, 3735648; 550152, 

3735650; 550153, 3735652; 550153, 

3735654; 550154, 3735656; 550154, 

3735658; 550154, 3735660; 550155, 

3735662; 550155, 3735664; 550155, 

3735666; 550155, 3735668; 550155, 

3735670; 550155, 3735672; 550156, 

3735675; 550156, 3735675; 550157, 

3735675; 550158, 3735675; 550159, 

3735676; 550160, 3735676; 550161, 

3735677; 550161, 3735678; 550162, 

3735678; 550163, 3735679; 550163, 

3735680; 550163, 3735681; 550163, 

3735681; 550164, 3735682; 550164, 

3735683; 550165, 3735684; 550165, 

3735684; 550166, 3735685; 550167, 

3735686; 550167, 3735686; 550168, 

3735687; 550172, 3735689; 550173, 

3735690; 550174, 3735690; 550175, 

3735690; 550176, 3735690; 550177, 

3735690; 550178, 3735690; 550179, 

3735690; 550179, 3735690; 550180, 

3735689; 550181, 3735689; 550182, 

3735689; 550182, 3735688; 550183, 

3735688; 550184, 3735688; 550185, 

3735687; 550186, 3735687; 550186, 

3735687; 550187, 3735687; 550188, 

3735687; 550189, 3735688; 550190, 

3735688; 550191, 3735688; 550192, 

3735689; 550193, 3735689; 550196, 

3735684; 550266, 3735736; 550288, 

3735753; 550283, 3735771; 550307, 

3735790; 550308, 3735790; 550309, 

3735791; 550310, 3735792; 550311, 

3735792; 550312, 3735793; 550313, 

3735793; 550347, 3735814; 550364, 

3735827; 550365, 3735828; 550366, 

3735829; 550366, 3735829; 550367, 

3735830; 550367, 3735830; 550368, 

3735831; 550368, 3735831; 550369, 

3735832; 550370, 3735833; 550371, 

3735834; 550372, 3735835; 550373, 

3735837; 550373, 3735837; 550374, 

3735839; 550375, 3735839; 550375, 

3735841; 550376, 3735841; 550376, 

3735842; 550377, 3735843; 550377, 

3735844; 550378, 3735845; 550378, 

3735846; 550379, 3735847; 550380, 

3735848; 550380, 3735849; 550381, 

3735850; 550381, 3735851; 550382, 

3735852; 550383, 3735853; 550384, 

3735854; 550384, 3735855; 550385, 

3735856; 550386, 3735856; 550386, 

3735857; 550387, 3735858; 550388, 

3735859; 550389, 3735860; 550390, 

3735860; 550391, 3735861; 550391, 

3735862; 550392, 3735863; 550393, 

3735864; 550394, 3735864; 550394, 

3735865; 550394, 3735866; 550395, 

3735867; 550395, 3735868; 550395, 

3735868; 550396, 3735869; 550396, 

3735870; 550396, 3735871; 550397, 

3735871; 550397, 3735872; 550398, 

3735873; 550398, 3735874; 550399, 

3735875; 550399, 3735876; 550400, 

3735876; 550401, 3735877; 550401, 

3735878; 550402, 3735878; 550402, 

3735879; 550403, 3735879; 550404, 

3735880; 550405, 3735880; 550405, 

3735881; 550406, 3735881; 550407, 

3735882; 550408, 3735882; 550409, 

3735883; 550409, 3735883; 550410, 

3735883; 550411, 3735883; 550412, 

3735884; 550413, 3735884; 550414, 

3735884; 550415, 3735884; 550415, 

3735884; 550417, 3735884; 550418, 

3735885; 550419, 3735885; 550420, 

3735886; 550420, 3735886; 550421, 

3735887; 550421, 3735887; 550422, 

3735888; 550422, 3735889; 550423, 

3735890; 550423, 3735890; 550423, 

3735891; 550423, 3735892; 550423, 

3735893; 550423, 3735894; 550423, 

3735895; 550423, 3735896; 550424, 

3735896; 550424, 3735897; 550424, 

3735898; 550425, 3735899; 550425, 

3735900; 550425, 3735901; 550426, 

3735902; 550426, 3735903; 550427, 

3735903; 550427, 3735904; 550428, 

3735905; 550428, 3735906; 550429, 

3735906; 550429, 3735907; 550430, 

3735908; 550431, 3735909; 550431, 

3735909; 550432, 3735910; 550446, 

3735922; 550449, 3735924; 550450, 

3735926; 550452, 3735927; 550453, 

3735928; 550455, 3735929; 550456, 

3735930; 550457, 3735931; 550458, 

3735931; 550459, 3735932; 550460, 

3735932; 550461, 3735933; 550462, 

3735933; 550463, 3735934; 550465, 

3735934; 550466, 3735934; 550466, 

3735935; 550467, 3735935; 550469, 

3735935; 550470, 3735935; 550472, 

3735935; 550473, 3735935; 550474, 

3735935; 550476, 3735935; 550478, 

3735935; 550479, 3735935; 550480, 

3735936; 550481, 3735936; 550482, 

3735937; 550484, 3735937; 550484, 

3735938; 550485, 3735938; 550486, 

3735939; 550487, 3735940; 550488, 

3735940; 550488, 3735941; 550489, 

3735942; 550490, 3735942; 550491, 

3735943; 550491, 3735943; 550492, 

3735944; 550493, 3735944; 550494, 

3735945; 550494, 3735945; 550495, 

3735946; 550496, 3735946; 550497, 

3735947; 550498, 3735947; 550498, 

3735948; 550499, 3735948; 550500, 

3735948; 550501, 3735949; 550502, 

3735949; 550503, 3735950; 550504, 

3735950; 550505, 3735950; 550505, 

3735951; 550506, 3735951; 550507, 

3735951; 550508, 3735951; 550509, 

3735952; 550510, 3735952; 550511, 

3735952; 550512, 3735953; 550513, 

3735953; 550514, 3735954; 550515, 

3735954; 550515, 3735955; 550516, 

3735955; 550517, 3735956; 550517, 

3735956; 550518, 3735957; 550518, 

3735957; 550519, 3735958; 550520, 

3735959; 550520, 3735960; 550521, 

3735960; 550529, 3735973; 550530, 

3735973; 550542, 3735983; 550544, 

3735984; 550545, 3735984; 550546, 

3735984; 550547, 3735984; 550548, 

3735985; 550549, 3735985; 550550, 

3735985; 550551, 3735985; 550552, 

3735985; 550553, 3735986; 550554, 

3735986; 550555, 3735987; 550556, 

3735987; 550556, 3735988; 550557, 

3735989; 550567, 3736004; 550568, 

3736005; 550568, 3736006; 550569, 

3736007; 550570, 3736008; 550570, 

3736009; 550571, 3736010; 550572, 

3736011; 550572, 3736012; 550573, 

3736013; 550574, 3736013; 550575, 

3736014; 550575, 3736015; 550576, 

3736016; 550577, 3736017; 550578, 

3736017; 550579, 3736018; 550580, 

3736019; 550581, 3736020; 550581, 

3736020; 550582, 3736021; 550583, 

3736022; 550584, 3736022; 550585, 

3736023; 550586, 3736024; 550587, 

3736024; 550588, 3736025; 550589, 

3736025; 550590, 3736026; 550591, 

3736026; 550592, 3736027; 550593, 

3736028; 550594, 3736028; 550595, 

3736028; 550596, 3736029; 550597, 

3736029; 550599, 3736030; 550600, 

3736031; 550601, 3736031; 550601, 

3736032; 550602, 3736032; 550602, 

3736033; 550610, 3736042; 550610, 

3736042; 550611, 3736043; 550611, 

3736044; 550612, 3736045; 550612, 

3736045; 550612, 3736046; 550612, 

3736047; 550612, 3736048; 550612, 

3736049; 550612, 3736049; 550612, 

3736050; 550612, 3736051; 550612, 

3736052; 550612, 3736053; 550612, 

3736054; 550612, 3736054; 550612, 

3736055; 550612, 3736056; 550613, 

3736057; 550613, 3736058; 550613, 

3736058; 550613, 3736059; 550613, 

3736060; 550614, 3736061; 550614, 

3736061; 550614, 3736062; 550615, 

3736063; 550615, 3736064; 550616, 

3736065; 550617, 3736066; 550617, 

3736067; 550618, 3736068; 550618, 

3736068; 550619, 3736069; 550619, 

3736069; 550620, 3736070; 550621, 

3736070; 550621, 3736071; 550622, 

3736071; 550623, 3736072; 550624, 

3736072; 550624, 3736073; 550626, 

3736073; 550627, 3736074; 550627, 

3736074; 550629, 3736075; 550629, 

3736075; 550630, 3736075; 550631, 

3736075; 550632, 3736076; 550633, 

3736076; 550633, 3736077; 550660, 

3736090; 550661, 3736090; 550662, 

3736090; 550663, 3736091; 550664, 

3736091; 550665, 3736092; 550666, 

3736092; 550667, 3736092; 550668, 

3736093; 550669, 3736093; 550670, 

3736093; 550671, 3736094; 550672, 

3736094; 550673, 3736094; 550674, 

3736094; 550709, 3736105; 550736, 

3736113; 550737, 3736113; 550738, 

3736114; 550739, 3736114; 550741, 

3736115; 550742, 3736115; 550743, 

17352 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3736115; 550744, 3736115; 550765, 

3736119; 550789, 3736125; 550790, 

3736125; 550791, 3736125; 550792, 

3736126; 550792, 3736126; 550793, 

3736127; 550794, 3736127; 550796, 

3736128; 550796, 3736128; 550797, 

3736129; 550798, 3736129; 550799, 

3736129; 550800, 3736129; 550801, 

3736130; 550802, 3736130; 550802, 

3736130; 550803, 3736131; 550804, 

3736131; 550805, 3736131; 550806, 

3736131; 550807, 3736131; 550808, 

3736131; 550809, 3736132; 550810, 

3736132; 550811, 3736132; 550812, 

3736132; 550812, 3736132; 550813, 

3736132; 550814, 3736132; 550815, 

3736132; 550816, 3736132; 550821, 

3736132; 550824, 3736132; 550827, 

3736132; 550831, 3736132; 550834, 

3736131; 550837, 3736131; 550841, 

3736131; 550844, 3736130; 550847, 

3736130; 550850, 3736129; 550854, 

3736129; 550857, 3736128; 550860, 

3736127; 550863, 3736126; 550864, 

3736126; 550865, 3736126; 550866, 

3736126; 550867, 3736126; 550868, 

3736126; 550868, 3736125; 550869, 

3736125; 550870, 3736125; 550871, 

3736125; 550872, 3736125; 550873, 

3736125; 550874, 3736125; 550875, 

3736125; 550901, 3736125; 550902, 

3736125; 550903, 3736125; 550904, 

3736125; 550905, 3736125; 550906, 

3736125; 550907, 3736124; 550908, 

3736124; 550909, 3736124; 550910, 

3736124; 550911, 3736125; 550912, 

3736125; 550913, 3736125; 550915, 

3736126; 550917, 3736126; 550918, 

3736127; 550918, 3736127; 550919, 

3736128; 550920, 3736128; 550967, 

3736165; 550968, 3736166; 550969, 

3736167; 550970, 3736168; 550971, 

3736169; 550972, 3736170; 550973, 

3736171; 550974, 3736172; 550975, 

3736173; 550975, 3736174; 550976, 

3736175; 550977, 3736176; 550977, 

3736176; 550978, 3736177; 550978, 

3736178; 550980, 3736180; 550989, 

3736173; 551157, 3736197; 551241, 

3736173; 551268, 3736187; 551319, 

3736092; 551324, 3736042; 551317, 

3736031; 551311, 3736021; 551310, 

3736020; 551307, 3736011; 551303, 

3735998; 551303, 3735997; 551294, 

3735983; 551293, 3735983; 551285, 

3735979; 551264, 3735969; 551264, 

3735967; 551264, 3735960; 551264, 

3735960; 551244, 3735943; 551190, 

3735896; 551189, 3735895; 551187, 

3735886; 551171, 3735873; 551165, 

3735873; 551154, 3735873; 551150, 

3735865; 551115, 3735830; 551102, 

3735816; 551102, 3735815; 551098, 

3735805; 551091, 3735791; 551072, 

3735779; 551076, 3735764; 551063, 

3735753; 551050, 3735741; 551041, 

3735722; 551043, 3735708; 551049, 

3735682; 551057, 3735667; 551060, 

3735659; 551065, 3735644; 551065, 

3735641; 551073, 3735648; 551077, 

3735648; 551101, 3735619; 551116, 

3735585; 551133, 3735573; 551160, 

3735560; 551186, 3735546; 551205, 

3735511; 551228, 3735497; 551233, 

3735494; 551304, 3735476; 551311, 

3735469; 551381, 3735436; 551411, 

3735419; 551435, 3735404; 551468, 

3735383; 551536, 3735343; 551572, 

3735315; 551594, 3735296; 551617, 

3735278; 551634, 3735258; 551670, 

3735214; 551675, 3735190; 551679, 

3735168; 551674, 3735152; 551671, 

3735135; 551674, 3735122; 551674, 

3735100; 551675, 3735046; 551674, 

3735025; 551672, 3735012; 551662, 

3734991; 551653, 3734968; 551652, 

3734954; 551651, 3734935; 551653, 

3734918; 551652, 3734900; 551655, 

3734883; 551658, 3734863; 551659, 

3734854; 551660, 3734840; 551659, 

3734832; 551654, 3734815; 551650, 

3734802; 551638, 3734790; 551632, 

3734783; 551625, 3734774; 551625, 

3734773; 551622, 3734768; 551616, 

3734755; 551619, 3734741; 551627, 

3734719; 551640, 3734696; 551648, 

3734679; 551658, 3734666; 551663, 

3734656; 551671, 3734648; 551676, 

3734638; 551676, 3734621; 551675, 

3734604; 551673, 3734581; 551672, 

3734567; 551669, 3734541; 551667, 

3734521; 551667, 3734506; 551671, 

3734496; 551670, 3734466; 551676, 

3734459; 551687, 3734445; 551692, 

3734430; 551692, 3734419; 551692, 

3734404; 551689, 3734390; 551682, 

3734375; 551673, 3734362; 551669, 

3734353; 551663, 3734334; 551658, 

3734324; 551648, 3734316; 551654, 

3734312; 551660, 3734312; 551666, 

3734306; 551700, 3734301; 551700, 

3734300; 551700, 3734297; 551679, 

3734251; 551673, 3734237; 551670, 

3734230; 551664, 3734220; 551643, 

3734193; 551640, 3734187; 551634, 

3734168; 551630, 3734153; 551631, 

3734133; 551630, 3734122; 551628, 

3734112; 551637, 3734102; 551646, 

3734106; 551650, 3734105; 551650, 

3734096; 551653, 3734090; 551653, 

3734075; 551657, 3734063; 551677, 

3734010; 551680, 3734004; 551711, 

3734004; 551715, 3734004; 551737, 

3734004; 551805, 3734027; 551809, 

3734042; 551810, 3734043; 551816, 

3734047; 551825, 3734048; 551836, 

3734048; 551839, 3734048; 551881, 

3734101; 551889, 3734112; 551904, 

3734125; 551945, 3734158; 551979, 

3734170; 552082, 3734080; 552090, 

3734061; 552137, 3734072; 552160, 

3734053; 552187, 3734097; 552187, 

3734109; 552184, 3734126; 552185, 

3734139; 552193, 3734173; 552186, 

3734186; 552185, 3734198; 552181, 

3734210; 552188, 3734225; 552190, 

3734240; 552195, 3734278; 552198, 

3734300; 552200, 3734300; 552200, 

3734311; 552201, 3734320; 552206, 

3734342; 552209, 3734353; 552215, 

3734369; 552219, 3734382; 552228, 

3734400; 552240, 3734412; 552251, 

3734427; 552255, 3734430; 552266, 

3734440; 552290, 3734453; 552300, 

3734460; 552323, 3734473; 552352, 

3734482; 552373, 3734483; 552390, 

3734479; 552404, 3734471; 552423, 

3734463; 552437, 3734454; 552449, 

3734445; 552456, 3734437; 552463, 

3734429; 552464, 3734429; 552478, 

3734419; 552499, 3734405; 552500, 

3734405; 552500, 3734400; 552512, 

3734400; 552530, 3734395; 552545, 

3734391; 552561, 3734387; 552562, 

3734386; 552576, 3734336; 552585, 

3734300; 552588, 3734278; 552594, 

3734268; 552595, 3734255; 552599, 

3734243; 552612, 3734239; 552620, 

3734223; 552624, 3734212; 552635, 

3734201; 552648, 3734193; 552652, 

3734182; 552657, 3734170; 552665, 

3734162; 552669, 3734155; 552673, 

3734116; 552673, 3734111; 552676, 

3734099; 552679, 3734087; 552684, 

3734076; 552687, 3734065; 552687, 

3734051; 552691, 3734031; 552721, 

3734010; 552735, 3733982; 552739, 

3733974; 552742, 3733967; 552746, 

3733960; 552751, 3733951; 552754, 

3733942; 552758, 3733934; 552763, 

3733930; 552768, 3733929; 552776, 

3733926; 552783, 3733923; 552795, 

3733920; 552803, 3733920; 552811, 

3733922; 552820, 3733923; 552835, 

3733924; 552845, 3733925; 552853, 

3733926; 552862, 3733928; 552875, 

3733930; 552883, 3733934; 552892, 

3733938; 552903, 3733940; 552914, 

3733944; 552960, 3733965; 552972, 

3733975; 552987, 3733986; 553031, 

3734027; 553078, 3734057; 553095, 

3734078; 553101, 3734109; 553111, 

3734152; 553098, 3734180; 553091, 

3734204; 553077, 3734242; 553050, 

3734295; 553047, 3734301; 553054, 

3734339; 553061, 3734356; 553070, 

3734363; 553077, 3734368; 553083, 

3734373; 553085, 3734375; 553086, 

3734382; 553090, 3734386; 553094, 

3734384; 553098, 3734391; 553111, 

3734399; 553113, 3734400; 553200, 

3734400; 553223, 3734400; 553229, 

3734398; 553245, 3734392; 553258, 

3734384; 553273, 3734376; 553286, 

3734370; 553286, 3734370; 553288, 

3734369; 553305, 3734357; 553327, 

3734344; 553341, 3734334; 553348, 

3734327; 553354, 3734324; 553352, 

3734318; 553352, 3734310; 553354, 

3734302; 553356, 3734293; 553355, 

3734284; 553351, 3734275; 553351, 

3734275; 553345, 3734268; 553343, 

3734257; 553346, 3734250; 553356, 

3734234; 553367, 3734225; 553372, 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17353 

3734218; 553383, 3734201; 553385, 

3734195; 553388, 3734187; 553389, 

3734172; 553390, 3734162; 553390, 

3734151; 553391, 3734140; 553394, 

3734132; 553400, 3734124; 553404, 

3734115; 553408, 3734104; 553408, 

3734097; 553415, 3734087; 553427, 

3734080; 553443, 3734064; 553452, 

3734060; 553468, 3734052; 553473, 

3734043; 553476, 3734033; 553484, 

3734028; 553492, 3734022; 553498, 

3734016; 553500, 3734015; 553502, 

3734011; 553510, 3734003; 553519, 

3733988; 553525, 3733981; 553533, 

3733977; 553546, 3733969; 553548, 

3733960; 553554, 3733947; 553566, 

3733938; 553576, 3733942; 553608, 

3733921; 553618, 3733926; 553630, 

3733936; 553634, 3733939; 553637, 

3733934; 553642, 3733928; 553652, 

3733919; 553654, 3733918; 553667, 

3733915; 553670, 3733840; 553672, 

3733783; 553675, 3733743; 553682, 

3733693; 553685, 3733673; 553690, 

3733628; 553698, 3733560; 553640, 

3733444; 553565, 3733353; 553564, 

3733352; 553549, 3733377; 553473, 

3733275; 553350, 3733112; 553321, 

3733073; 553304, 3733037; 553301, 

3733029; 553293, 3733010; 553218, 

3732821; 553124, 3732581; 553005, 

3732465; 552984, 3732425; 552896, 

3732424; 552891, 3732422; 552879, 

3732417; 552870, 3732413; 552888, 

3732400; 553005, 3732318; 553037, 

3732269; 553039, 3732265; 553039, 

3732265; 553071, 3732232; 553084, 

3732224; 553103, 3732215; 553125, 

3732202; 553140, 3732194; 553159, 

3732187; 553179, 3732187; 553284, 

3732144; 553284, 3732142; 553286, 

3732136; 553294, 3732133; 553299, 

3732136; 553300, 3732137; 553304, 

3732150; 553310, 3732161; 553322, 

3732172; 553327, 3732179; 553337, 

3732179; 553344, 3732185; 553348, 

3732196; 553361, 3732200; 553383, 

3732200; 553391, 3732204; 553395, 

3732224; 553404, 3732245; 553408, 

3732262; 553404, 3732290; 553402, 

3732310; 553383, 3732340; 553374, 

3732345; 553374, 3732358; 553382, 

3732367; 553391, 3732365; 553408, 

3732365; 553423, 3732370; 553434, 

3732372; 553456, 3732333; 553466, 

3732314; 553479, 3732295; 553492, 

3732277; 553511, 3732265; 553524, 

3732262; 553537, 3732265; 553546, 

3732260; 553544, 3732250; 553544, 

3732234; 553554, 3732230; 553563, 

3732224; 553576, 3732217; 553589, 

3732204; 553597, 3732202; 553610, 

3732202; 553625, 3732200; 553636, 

3732196; 553658, 3732189; 553675, 

3732194; 553683, 3732183; 553698, 

3732200; 553715, 3732237; 553733, 

3732239; 553756, 3732239; 553772, 

3732233; 553788, 3732248; 553799, 

3732247; 553810, 3732260; 553813, 

3732271; 553826, 3732281; 553838, 

3732282; 553847, 3732289; 553860, 

3732291; 553877, 3732286; 553894, 

3732280; 553911, 3732275; 553939, 

3732234; 553954, 3732217; 553962, 

3732202; 553969, 3732176; 553976, 

3732165; 554016, 3732149; 553999, 

3732116; 553998, 3732115; 553996, 

3732100; 554041, 3732073; 554057, 

3732063; 554077, 3732092; 554080, 

3732092; 554092, 3732091; 554102, 

3732099; 554105, 3732116; 554109, 

3732150; 554368, 3730690; 554245, 

3729777; 554239, 3729775; 554201, 

3729779; 554164, 3729784; 554133, 

3729781; 554095, 3729767; 554079, 

3729754; 554055, 3729695; 554035, 

3729675; 554023, 3729667; 554005, 

3729655; 553984, 3729646; 553966, 

3729644; 553948, 3729653; 553922, 

3729659; 553887, 3729667; 553858, 

3729674; 553841, 3729677; 553820, 

3729671; 553811, 3729653; 553804, 

3729633; 553803, 3729622; 553807, 

3729592; 553815, 3729576; 553823, 

3729561; 553834, 3729536; 553850, 

3729507; 553853, 3729480; 553859, 

3729446; 553861, 3729423; 553852, 

3729387; 553847, 3729361; 553832, 

3729318; 553816, 3729275; 553806, 

3729250; 553806, 3729249; 553805, 

3729247; 553805, 3729246; 553804, 

3729244; 553804, 3729243; 553803, 

3729242; 553802, 3729240; 553802, 

3729239; 553801, 3729237; 553800, 

3729236; 553800, 3729235; 553799, 

3729233; 553798, 3729232; 553797, 

3729231; 553797, 3729229; 553796, 

3729228; 553795, 3729227; 553794, 

3729226; 553793, 3729224; 553792, 

3729223; 553791, 3729222; 553790, 

3729221; 553789, 3729220; 553788, 

3729218; 553787, 3729217; 553786, 

3729216; 553785, 3729215; 553784, 

3729214; 553783, 3729213; 553782, 

3729212; 553781, 3729211; 553780, 

3729210; 553779, 3729209; 553777, 

3729208; 553776, 3729207; 553775, 

3729206; 553774, 3729205; 553772, 

3729204; 553771, 3729203; 553770, 

3729202; 553769, 3729202; 553768, 

3729201; 553766, 3729201; 553765, 

3729200; 553764, 3729200; 553763, 

3729199; 553762, 3729199; 553760, 

3729198; 553759, 3729198; 553758, 

3729197; 553757, 3729196; 553756, 

3729196; 553755, 3729195; 553754, 

3729194; 553752, 3729194; 553751, 

3729193; 553750, 3729192; 553749, 

3729192; 553748, 3729191; 553747, 

3729190; 553746, 3729189; 553745, 

3729188; 553744, 3729188; 553743, 

3729187; 553742, 3729186; 553741, 

3729185; 553740, 3729184; 553739, 

3729183; 553738, 3729182; 553738, 

3729181; 553737, 3729180; 553736, 

3729179; 553735, 3729178; 553734, 

3729177; 553733, 3729176; 553733, 

3729175; 553732, 3729174; 553731, 

3729173; 553730, 3729172; 553730, 

3729171; 553729, 3729170; 553728, 

3729169; 553728, 3729168; 553727, 

3729166; 553726, 3729165; 553726, 

3729164; 553725, 3729163; 553725, 

3729162; 553724, 3729161; 553724, 

3729159; 553723, 3729158; 553723, 

3729157; 553722, 3729156; 553722, 

3729155; 553721, 3729153; 553721, 

3729152; 553721, 3729151; 553720, 

3729150; 553720, 3729148; 553720, 

3729147; 553719, 3729146; 553719, 

3729144; 553719, 3729143; 553719, 

3729142; 553719, 3729141; 553718, 

3729139; 553718, 3729138; 553718, 

3729137; 553718, 3729135; 553718, 

3729134; 553718, 3729133; 553718, 

3729132; 553718, 3729130; 553718, 

3729129; 553718, 3729128; 553718, 

3729126; 553718, 3729125; 553718, 

3729124; 553718, 3729122; 553718, 

3729121; 553719, 3729120; 553719, 

3729119; 553719, 3729117; 553719, 

3729116; 553720, 3729115; 553720, 

3729113; 553720, 3729112; 553721, 

3729111; 553721, 3729110; 553721, 

3729108; 553722, 3729107; 553722, 

3729106; 553723, 3729105; 553723, 

3729104; 553723, 3729102; 553724, 

3729101; 553725, 3729100; 553725, 

3729099; 553726, 3729098; 553726, 

3729096; 553727, 3729095; 553727, 

3729094; 553728, 3729093; 553729, 

3729092; 553729, 3729091; 553730, 

3729090; 553731, 3729089; 553732, 

3729088; 553732, 3729087; 553733, 

3729086; 553734, 3729084; 553735, 

3729083; 553736, 3729082; 553736, 

3729081; 553737, 3729081; 553738, 

3729080; 553739, 3729079; 553740, 

3729078; 553741, 3729077; 553742, 

3729076; 553743, 3729075; 553743, 

3729075; 553744, 3729074; 553746, 

3729073; 553747, 3729072; 553748, 

3729071; 553749, 3729071; 553750, 

3729070; 553751, 3729069; 553753, 

3729069; 553754, 3729068; 553755, 

3729067; 553756, 3729067; 553758, 

3729066; 553759, 3729065; 553760, 

3729065; 553762, 3729064; 553763, 

3729064; 553764, 3729063; 553766, 

3729063; 553767, 3729062; 553768, 

3729062; 553770, 3729061; 553771, 

3729061; 553772, 3729061; 553774, 

3729060; 553775, 3729060; 553776, 

3729060; 553778, 3729060; 553779, 

3729059; 553781, 3729059; 553782, 

3729059; 553783, 3729059; 553785, 

3729059; 553786, 3729058; 553788, 

3729058; 553791, 3729058; 553792, 

3729058; 553793, 3729058; 553795, 

3729058; 553796, 3729058; 553802, 

3729059; 553808, 3729059; 553814, 

3729059; 553819, 3729059; 553825, 

3729058; 553831, 3729058; 553837, 

3729058; 553843, 3729057; 553849, 

17354 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3729057; 553855, 3729056; 553861, 

3729055; 553863, 3729055; 553866, 

3729054; 553868, 3729054; 553871, 

3729053; 553874, 3729053; 553877, 

3729052; 553879, 3729051; 553882, 

3729050; 553885, 3729050; 553887, 

3729049; 553890, 3729048; 553892, 

3729047; 553895, 3729046; 553898, 

3729045; 553900, 3729044; 553903, 

3729043; 553905, 3729042; 553908, 

3729041; 553910, 3729039; 553913, 

3729038; 553915, 3729037; 553918, 

3729036; 553920, 3729034; 553922, 

3729033; 553925, 3729031; 553927, 

3729030; 553929, 3729028; 553931, 

3729027; 553933, 3729025; 553935, 

3729024; 553937, 3729022; 553939, 

3729021; 553941, 3729020; 553943, 

3729018; 553946, 3729017; 553948, 

3729016; 553950, 3729015; 553952, 

3729013; 553955, 3729012; 553957, 

3729011; 553959, 3729010; 553961, 

3729009; 553964, 3729008; 553966, 

3729007; 553968, 3729006; 553971, 

3729005; 553973, 3729004; 553976, 

3729004; 553978, 3729003; 553980, 

3729002; 553983, 3729002; 553985, 

3729001; 553988, 3729000; 553990, 

3729000; 553993, 3728999; 553995, 

3728999; 553998, 3728999; 554000, 

3728998; 554003, 3728998; 554005, 

3728998; 554007, 3728997; 554008, 

3728997; 554010, 3728997; 554011, 

3728997; 554013, 3728997; 554014, 

3728996; 554015, 3728996; 554017, 

3728996; 554018, 3728996; 554020, 

3728995; 554021, 3728995; 554023, 

3728995; 554024, 3728994; 554025, 

3728994; 554027, 3728993; 554028, 

3728993; 554030, 3728992; 554031, 

3728992; 554032, 3728991; 554034, 

3728990; 554035, 3728990; 554036, 

3728989; 554038, 3728989; 554039, 

3728988; 554040, 3728987; 554042, 

3728986; 554043, 3728986; 554044, 

3728985; 554045, 3728984; 554047, 

3728983; 554048, 3728982; 554049, 

3728982; 554050, 3728981; 554051, 

3728980; 554053, 3728979; 554054, 

3728978; 554055, 3728977; 554056, 

3728976; 554057, 3728975; 554058, 

3728974; 554059, 3728973; 554060, 

3728972; 554061, 3728971; 554062, 

3728970; 554063, 3728969; 554064, 

3728968; 554065, 3728966; 554066, 

3728965; 554067, 3728964; 554069, 

3728962; 554071, 3728960; 554072, 

3728957; 554074, 3728955; 554076, 

3728953; 554079, 3728950; 554081, 

3728948; 554083, 3728946; 554085, 

3728944; 554087, 3728942; 554089, 

3728940; 554092, 3728938; 554094, 

3728936; 554095, 3728935; 554097, 

3728934; 554098, 3728933; 554100, 

3728931; 554102, 3728930; 554103, 

3728929; 554105, 3728928; 554107, 

3728927; 554109, 3728926; 554110, 

3728925; 554112, 3728924; 554114, 

3728923; 554116, 3728922; 554118, 

3728921; 554119, 3728920; 554121, 

3728919; 554123, 3728918; 554125, 

3728917; 554127, 3728916; 554129, 

3728916; 554113, 3728802; 554092, 

3728802; 554032, 3728802; 553931, 

3728801; 553728, 3728800; 553627, 

3728799; 553526, 3728799; 553426, 

3728798; 553426, 3728726; 553427, 

3728678; 553427, 3728598; 553326, 

3728597; 553327, 3728496; 553328, 

3728395; 553328, 3728294; 553329, 

3728192; 553329, 3728091; 553330, 

3727992; 553331, 3727895; 553331, 

3727792; 553332, 3727689; 553333, 

3727590; 553333, 3727489; 553334, 

3727388; 553334, 3727287; 553335, 

3727187; 553486, 3727188; 553488, 

3727145; 553491, 3727087; 553492, 

3727080; 553500, 3726986; 553518, 

3726879; 553591, 3726724; 553600, 

3726707; 553600, 3726700; 553600, 

3726600; 553600, 3726500; 553600, 

3726400; 553700, 3726400; 553748, 

3726400; 553749, 3726399; 553747, 

3726395; 553758, 3726342; 553758, 

3726341; 553945, 3726216; 554135, 

3726156; 554149, 3726142; 554187, 

3726105; 554178, 3726042; 554182, 

3726038; 554187, 3726031; 554187, 

3726030; 554186, 3726026; 554186, 

3726025; 554186, 3726022; 554186, 

3726018; 554187, 3726015; 554188, 

3726013; 554188, 3726011; 554190, 

3726008; 554192, 3726005; 554212, 

3725983; 554215, 3725979; 554217, 

3725977; 554217, 3725976; 554237, 

3725975; 554251, 3725960; 554333, 

3725946; 554367, 3725967; 554380, 

3725976; 554393, 3725984; 554474, 

3725956; 554551, 3725915; 554600, 

3725889; 554600, 3725800; 554620, 

3725800; 554619, 3725760; 554611, 

3725760; 554610, 3725760; 554610, 

3725760; 554609, 3725760; 554608, 

3725760; 554608, 3725760; 554608, 

3725760; 554607, 3725760; 554607, 

3725760; 554606, 3725760; 554606, 

3725760; 554605, 3725760; 554605, 

3725759; 554605, 3725759; 554604, 

3725759; 554604, 3725759; 554604, 

3725759; 554603, 3725759; 554603, 

3725759; 554602, 3725759; 554602, 

3725758; 554601, 3725758; 554601, 

3725758; 554600, 3725758; 554600, 

3725757; 554600, 3725757; 554599, 

3725757; 554599, 3725757; 554598, 

3725756; 554598, 3725756; 554598, 

3725756; 554597, 3725756; 554597, 

3725755; 554597, 3725755; 554597, 

3725755; 554596, 3725755; 554596, 

3725755; 554596, 3725754; 554596, 

3725754; 554595, 3725754; 554595, 

3725753; 554595, 3725753; 554595, 

3725753; 554595, 3725753; 554594, 

3725752; 554594, 3725752; 554594, 

3725751; 554593, 3725751; 554593, 

3725751; 554593, 3725750; 554593, 

3725750; 554592, 3725750; 554592, 

3725749; 554592, 3725749; 554592, 

3725749; 554592, 3725748; 554592, 

3725748; 554591, 3725748; 554591, 

3725747; 554591, 3725747; 554591, 

3725747; 554591, 3725746; 554590, 

3725746; 554590, 3725746; 554590, 

3725745; 554590, 3725745; 554590, 

3725744; 554590, 3725744; 554590, 

3725744; 554589, 3725743; 554589, 

3725743; 554589, 3725743; 554589, 

3725742; 554589, 3725742; 554589, 

3725741; 554589, 3725741; 554589, 

3725741; 554589, 3725740; 554588, 

3725740; 554588, 3725740; 554588, 

3725739; 554588, 3725739; 554588, 

3725739; 554588, 3725738; 554588, 

3725738; 554588, 3725738; 554588, 

3725737; 554588, 3725737; 554588, 

3725736; 554588, 3725736; 554588, 

3725735; 554588, 3725735; 554588, 

3725735; 554588, 3725734; 554588, 

3725734; 554588, 3725733; 554588, 

3725733; 554588, 3725732; 554588, 

3725732; 554588, 3725730; 554588, 

3725729; 554588, 3725729; 554588, 

3725728; 554588, 3725728; 554588, 

3725727; 554588, 3725727; 554588, 

3725726; 554588, 3725726; 554589, 

3725725; 554589, 3725725; 554589, 

3725724; 554589, 3725724; 554589, 

3725723; 554589, 3725723; 554589, 

3725723; 554589, 3725722; 554590, 

3725722; 554590, 3725721; 554590, 

3725721; 554590, 3725721; 554590, 

3725720; 554590, 3725720; 554590, 

3725719; 554591, 3725719; 554591, 

3725719; 554591, 3725718; 554591, 

3725718; 554591, 3725717; 554592, 

3725717; 554592, 3725717; 554592, 

3725716; 554592, 3725716; 554593, 

3725715; 554593, 3725715; 554593, 

3725715; 554593, 3725714; 554594, 

3725714; 554594, 3725714; 554594, 

3725713; 554595, 3725713; 554595, 

3725713; 554595, 3725712; 554595, 

3725712; 554596, 3725712; 554596, 

3725711; 554596, 3725711; 554597, 

3725711; 554597, 3725710; 554597, 

3725710; 554598, 3725710; 554598, 

3725709; 554598, 3725709; 554599, 

3725709; 554599, 3725708; 554599, 

3725708; 554600, 3725708; 554600, 

3725708; 554601, 3725707; 554601, 

3725707; 554601, 3725707; 554602, 

3725707; 554602, 3725706; 554602, 

3725706; 554603, 3725706; 554603, 

3725706; 554603, 3725706; 554604, 

3725706; 554604, 3725705; 554604, 

3725705; 554605, 3725705; 554605, 

3725705; 554605, 3725705; 554606, 

3725705; 554606, 3725704; 554607, 

3725704; 554607, 3725704; 554607, 

3725704; 554608, 3725704; 554608, 

3725704; 554609, 3725704; 554609, 

3725703; 554609, 3725703; 554610, 

3725703; 554610, 3725703; 554618, 

3725707; 554632, 3725706; 554660, 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17355 

3725699; 554705, 3725687; 554759, 

3725672; 554789, 3725603; 554789, 

3725602; 554857, 3725444; 554913, 

3725363; 554955, 3725411; 554966, 

3725423; 554994, 3725457; 555049, 

3725501; 555038, 3725534; 555037, 

3725534; 554953, 3725581; 554954, 

3725584; 556747, 3725031; 557936, 

3724088; 558510, 3724252; 559822, 

3725688; 560478, 3727041; 561094, 

3727369; 561750, 3727082; 562570, 

3725442; 562693, 3724006; 562980, 

3722489; 563513, 3721997; 564088, 

3722418; 564089, 3722418; 564122, 

3722411; 564155, 3722405; 564169, 

3722414; 564188, 3722426; 564188, 

3722427; 564189, 3722427; 564189, 

3722427; 564189, 3722428; 564190, 

3722428; 564190, 3722428; 564190, 

3722428; 564191, 3722429; 564191, 

3722429; 564191, 3722429; 564191, 

3722429; 564191, 3722430; 564192, 

3722430; 564192, 3722431; 564192, 

3722431; 564193, 3722431; 564193, 

3722432; 564193, 3722432; 564193, 

3722432; 564194, 3722433; 564194, 

3722433; 564194, 3722434; 564194, 

3722434; 564194, 3722435; 564194, 

3722435; 564195, 3722435; 564195, 

3722435; 564195, 3722436; 564195, 

3722436; 564195, 3722437; 564195, 

3722437; 564195, 3722438; 564195, 

3722438; 564195, 3722438; 564196, 

3722439; 564196, 3722439; 564196, 

3722440; 564196, 3722440; 564196, 

3722441; 564196, 3722441; 564196, 

3722442; 564196, 3722442; 564196, 

3722442; 564196, 3722443; 564196, 

3722443; 564196, 3722444; 564196, 

3722444; 564196, 3722444; 564196, 

3722445; 564209, 3722445; 564209, 

3722447; 564208, 3722593; 564207, 

3722807; 564206, 3722886; 564204, 

3723251; 564211, 3723251; 564211, 

3723251; 564210, 3723363; 564243, 

3723406; 564268, 3723438; 564398, 

3723605; 564418, 3723631; 564418, 

3723632; 564419, 3723632; 564419, 

3723632; 564419, 3723633; 564419, 

3723633; 564420, 3723633; 564420, 

3723634; 564420, 3723634; 564421, 

3723635; 564421, 3723635; 564421, 

3723635; 564422, 3723636; 564422, 

3723637; 564422, 3723637; 564423, 

3723637; 564423, 3723638; 564423, 

3723638; 564423, 3723638; 564423, 

3723638; 564423, 3723639; 564424, 

3723639; 564424, 3723639; 564424, 

3723640; 564424, 3723640; 564425, 

3723641; 564425, 3723641; 564425, 

3723641; 564425, 3723642; 564426, 

3723642; 564426, 3723643; 564426, 

3723644; 564427, 3723644; 564427, 

3723645; 564427, 3723645; 564428, 

3723646; 564428, 3723646; 564428, 

3723647; 564428, 3723647; 564429, 

3723648; 564429, 3723648; 564429, 

3723649; 564430, 3723649; 564430, 

3723650; 564430, 3723650; 564430, 

3723650; 564430, 3723651; 564431, 

3723652; 564431, 3723652; 564431, 

3723652; 564431, 3723653; 564432, 

3723653; 564432, 3723654; 564432, 

3723654; 564432, 3723655; 564432, 

3723655; 564433, 3723656; 564433, 

3723656; 564438, 3723663; 564442, 

3723714; 564442, 3723714; 564435, 

3723789; 564440, 3723798; 564463, 

3723846; 564481, 3723875; 564488, 

3723896; 564506, 3723919; 564509, 

3723922; 564514, 3723928; 564568, 

3723964; 564581, 3723968; 564581, 

3723969; 564582, 3723969; 564582, 

3723969; 564583, 3723969; 564640, 

3723990; 564641, 3723991; 564641, 

3723991; 564642, 3723991; 564642, 

3723991; 564653, 3723995; 564653, 

3724000; 564700, 3724000; 564700, 

3724073; 564917, 3724081; 564924, 

3724081; 565084, 3724082; 565162, 

3724083; 565138, 3724144; 565147, 

3724163; 565165, 3724200; 565176, 

3724200; 565187, 3724196; 565216, 

3724186; 565378, 3724172; 565428, 

3724264; 565296, 3724353; 565282, 

3724363; 565257, 3724379; 565257, 

3724421; 565274, 3724448; 565290, 

3724441; 565310, 3724432; 565317, 

3724438; 565346, 3724460; 565355, 

3724622; 565348, 3724812; 565307, 

3724890; 565266, 3724966; 565240, 

3725013; 565289, 3725063; 565312, 

3725087; 565341, 3725165; 565422, 

3725156; 565464, 3725152; 565490, 

3725149; 565493, 3725149; 565522, 

3725145; 565556, 3725116; 565619, 

3725062; 565757, 3725065; 565842, 

3725067; 565907, 3725026; 565944, 

3725002; 565945, 3725002; 565945, 

3725002; 565945, 3725002; 565946, 

3725001; 565946, 3725001; 565946, 

3725001; 565947, 3725001; 565947, 

3725001; 565947, 3725001; 565948, 

3725000; 565948, 3725000; 565948, 

3725000; 565948, 3725000; 565949, 

3725000; 565949, 3725000; 565949, 

3725000; 565950, 3725000; 565950, 

3725000; 565950, 3725000; 565951, 

3725000; 565951, 3724999; 565952, 

3724999; 565952, 3724999; 565953, 

3724999; 565953, 3724999; 565954, 

3724999; 565954, 3724999; 565955, 

3724999; 565955, 3724999; 565956, 

3724999; 565956, 3724999; 565956, 

3724999; 565957, 3724999; 565957, 

3725000; 565958, 3725000; 565958, 

3725000; 565959, 3725000; 565959, 

3725000; 565959, 3725000; 565960, 

3725000; 565960, 3725000; 565960, 

3725000; 565961, 3725000; 565961, 

3725001; 565961, 3725001; 565962, 

3725001; 565962, 3725001; 565962, 

3725001; 565962, 3725001; 565963, 

3725001; 565963, 3725002; 565964, 

3725002; 565964, 3725002; 565964, 

3725002; 565965, 3725003; 565965, 

3725003; 565965, 3725003; 565966, 

3725003; 565966, 3725004; 565966, 

3725004; 565967, 3725004; 565967, 

3725005; 565967, 3725005; 565968, 

3725005; 565968, 3725006; 565968, 

3725006; 565969, 3725006; 565969, 

3725007; 565969, 3725007; 565969, 

3725007; 565970, 3725008; 565970, 

3725008; 565970, 3725009; 565970, 

3725009; 565971, 3725009; 565971, 

3725010; 565971, 3725010; 565971, 

3725011; 565971, 3725011; 565971, 

3725011; 565971, 3725011; 565972, 

3725012; 565972, 3725012; 565972, 

3725013; 565972, 3725013; 565972, 

3725013; 565972, 3725014; 565972, 

3725014; 565972, 3725015; 565972, 

3725015; 565972, 3725015; 565972, 

3725016; 565972, 3725016; 565972, 

3725016; 565972, 3725017; 565972, 

3725017; 565972, 3725018; 565972, 

3725018; 565972, 3725019; 565972, 

3725019; 565972, 3725019; 565972, 

3725020; 565972, 3725020; 565972, 

3725020; 565972, 3725021; 565972, 

3725021; 565972, 3725022; 565972, 

3725022; 565972, 3725023; 565972, 

3725023; 565971, 3725024; 565971, 

3725024; 565971, 3725025; 565903, 

3725182; 565900, 3725220; 565900, 

3725300; 565892, 3725300; 565888, 

3725336; 565867, 3725351; 565866, 

3725352; 565800, 3725398; 565800, 

3725400; 565800, 3725424; 565845, 

3725432; 565848, 3725480; 565865, 

3725483; 565865, 3725483; 565883, 

3725486; 565899, 3725489; 565909, 

3725521; 565910, 3725530; 565910, 

3725531; 565910, 3725532; 565913, 

3725559; 565900, 3725588; 565900, 

3725600; 565900, 3725669; 565900, 

3725670; 565900, 3725670; 565900, 

3725700; 565888, 3725700; 565864, 

3725716; 565856, 3725765; 565849, 

3725813; 565849, 3725814; 565849, 

3725814; 565849, 3725815; 565849, 

3725815; 565849, 3725816; 565849, 

3725817; 565849, 3725817; 565849, 

3725818; 565849, 3725818; 565849, 

3725819; 565849, 3725819; 565849, 

3725820; 565849, 3725821; 565849, 

3725822; 565849, 3725822; 565849, 

3725823; 565849, 3725824; 565849, 

3725825; 565849, 3725825; 565849, 

3725826; 565849, 3725826; 565849, 

3725827; 565849, 3725827; 565849, 

3725828; 565850, 3725829; 565850, 

3725830; 565850, 3725831; 565850, 

3725831; 565850, 3725832; 565851, 

3725833; 565851, 3725834; 565851, 

3725834; 565851, 3725835; 565852, 

3725836; 565852, 3725837; 565852, 

3725837; 565852, 3725838; 565853, 

3725838; 565853, 3725839; 565853, 

3725839; 565853, 3725840; 565854, 

3725841; 565854, 3725842; 565855, 

3725842; 565855, 3725843; 565856, 

3725844; 565856, 3725845; 565857, 

17356 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3725846; 565858, 3725848; 565859, 

3725849; 565860, 3725850; 565861, 

3725851; 565861, 3725851; 565862, 

3725852; 565862, 3725852; 565862, 

3725852; 565863, 3725853; 565863, 

3725854; 565864, 3725854; 565865, 

3725855; 565865, 3725855; 565866, 

3725856; 565867, 3725856; 565867, 

3725857; 565868, 3725857; 565869, 

3725858; 565870, 3725858; 565871, 

3725859; 565872, 3725860; 565873, 

3725860; 565875, 3725861; 565876, 

3725862; 565876, 3725862; 565877, 

3725862; 565877, 3725862; 565878, 

3725862; 565878, 3725863; 565879, 

3725863; 565879, 3725863; 565880, 

3725863; 565881, 3725863; 565881, 

3725864; 565882, 3725864; 565882, 

3725864; 565883, 3725864; 565884, 

3725864; 565884, 3725864; 565885, 

3725865; 565885, 3725865; 565886, 

3725865; 565887, 3725865; 565888, 

3725865; 565888, 3725865; 565889, 

3725865; 565890, 3725865; 565891, 

3725865; 565892, 3725865; 565892, 

3725866; 565893, 3725866; 565894, 

3725866; 565895, 3725866; 565896, 

3725866; 565896, 3725866; 565897, 

3725866; 565898, 3725865; 565899, 

3725865; 565899, 3725865; 565900, 

3725865; 565901, 3725865; 565902, 

3725865; 565903, 3725865; 565904, 

3725865; 565904, 3725865; 565905, 

3725864; 565906, 3725864; 565907, 

3725864; 565907, 3725864; 565907, 

3725864; 565908, 3725863; 565909, 

3725863; 565910, 3725863; 565910, 

3725863; 565911, 3725863; 565911, 

3725862; 565912, 3725862; 565912, 

3725862; 565913, 3725862; 565913, 

3725862; 565914, 3725861; 565916, 

3725860; 565917, 3725860; 565918, 

3725859; 565919, 3725858; 565920, 

3725858; 565921, 3725857; 565922, 

3725857; 565922, 3725856; 565923, 

3725856; 565924, 3725855; 565939, 

3725842; 566014, 3725778; 566029, 

3725765; 566057, 3725765; 566059, 

3725761; 566071, 3725742; 566082, 

3725731; 566094, 3725726; 566108, 

3725722; 566115, 3725717; 566125, 

3725710; 566130, 3725706; 566131, 

3725705; 566137, 3725700; 566142, 

3725694; 566145, 3725691; 566149, 

3725684; 566153, 3725676; 566159, 

3725672; 566165, 3725666; 566168, 

3725659; 566168, 3725650; 566168, 

3725642; 566166, 3725633; 566165, 

3725623; 566164, 3725616; 566165, 

3725610; 566167, 3725601; 566172, 

3725597; 566177, 3725585; 566179, 

3725577; 566176, 3725567; 566173, 

3725557; 566168, 3725546; 566167, 

3725538; 566165, 3725530; 566163, 

3725523; 566161, 3725517; 566161, 

3725508; 566165, 3725500; 566171, 

3725495; 566175, 3725490; 566182, 

3725484; 566190, 3725478; 566194, 

3725470; 566199, 3725462; 566206, 

3725451; 566210, 3725444; 566219, 

3725437; 566229, 3725432; 566240, 

3725430; 566253, 3725428; 566260, 

3725428; 566261, 3725428; 566272, 

3725422; 566278, 3725422; 566283, 

3725422; 566293, 3725425; 566302, 

3725425; 566313, 3725422; 566315, 

3725410; 566313, 3725407; 566314, 

3725394; 566318, 3725382; 566322, 

3725373; 566329, 3725363; 566336, 

3725359; 566348, 3725352; 566355, 

3725352; 566368, 3725343; 566372, 

3725337; 566376, 3725330; 566388, 

3725326; 566396, 3725323; 566407, 

3725320; 566417, 3725320; 566426, 

3725319; 566439, 3725318; 566449, 

3725323; 566461, 3725327; 566468, 

3725336; 566476, 3725344; 566481, 

3725346; 566493, 3725350; 566501, 

3725350; 566510, 3725350; 566515, 

3725350; 566525, 3725346; 566537, 

3725338; 566546, 3725332; 566555, 

3725328; 566566, 3725321; 566575, 

3725317; 566581, 3725314; 566591, 

3725305; 566593, 3725302; 566597, 

3725297; 566602, 3725292; 566608, 

3725283; 566615, 3725272; 566620, 

3725257; 566623, 3725246; 566623, 

3725233; 566623, 3725228; 566595, 

3725205; 566576, 3725168; 566573, 

3725134; 566569, 3725089; 566569, 

3725063; 566576, 3725025; 566599, 

3724984; 566610, 3724954; 566629, 

3724932; 566644, 3724920; 566670, 

3724913; 566672, 3724913; 566693, 

3724920; 566715, 3724924; 566749, 

3724920; 566771, 3724905; 566773, 

3724904; 566798, 3724890; 566820, 

3724860; 566846, 3724853; 566906, 

3724838; 566910, 3724834; 566924, 

3724825; 566940, 3724819; 566951, 

3724811; 566963, 3724802; 566967, 

3724791; 567005, 3724744; 567014, 

3724733; 567023, 3724718; 567031, 

3724710; 567045, 3724692; 567054, 

3724680; 567063, 3724664; 567072, 

3724655; 567113, 3724636; 567119, 

3724630; 567136, 3724576; 567136, 

3724575; 567136, 3724575; 567136, 

3724573; 567137, 3724572; 567137, 

3724572; 567137, 3724570; 567137, 

3724569; 567137, 3724568; 567137, 

3724567; 567137, 3724566; 567137, 

3724565; 567137, 3724564; 567137, 

3724563; 567138, 3724562; 567138, 

3724561; 567138, 3724560; 567138, 

3724559; 567138, 3724558; 567138, 

3724556; 567138, 3724555; 567138, 

3724554; 567138, 3724553; 567138, 

3724552; 567138, 3724551; 567138, 

3724550; 567138, 3724549; 567138, 

3724548; 567138, 3724547; 567138, 

3724545; 567138, 3724544; 567138, 

3724544; 567138, 3724542; 567138, 

3724541; 567138, 3724540; 567138, 

3724539; 567138, 3724538; 567138, 

3724537; 567138, 3724536; 567138, 

3724535; 567137, 3724534; 567137, 

3724533; 567137, 3724532; 567137, 

3724531; 567137, 3724530; 567137, 

3724528; 567137, 3724527; 567137, 

3724527; 567137, 3724525; 567137, 

3724524; 567136, 3724523; 567136, 

3724522; 567136, 3724521; 567136, 

3724520; 567136, 3724519; 567136, 

3724518; 567135, 3724517; 567135, 

3724516; 567135, 3724515; 567135, 

3724514; 567135, 3724513; 567135, 

3724512; 567134, 3724511; 567134, 

3724510; 567134, 3724509; 567134, 

3724508; 567134, 3724507; 567133, 

3724506; 567133, 3724505; 567133, 

3724504; 567133, 3724503; 567133, 

3724502; 567132, 3724501; 567132, 

3724500; 567132, 3724500; 567132, 

3724499; 567131, 3724498; 567131, 

3724497; 567131, 3724496; 567131, 

3724495; 567130, 3724494; 567130, 

3724493; 567130, 3724492; 567130, 

3724491; 567129, 3724490; 567129, 

3724490; 567129, 3724489; 567129, 

3724488; 567128, 3724487; 567128, 

3724486; 567128, 3724485; 567127, 

3724484; 567127, 3724483; 567127, 

3724482; 567126, 3724481; 567126, 

3724480; 567126, 3724479; 567125, 

3724479; 567125, 3724478; 567125, 

3724476; 567124, 3724475; 567124, 

3724474; 567123, 3724473; 567123, 

3724472; 567122, 3724471; 567122, 

3724470; 567121, 3724469; 567121, 

3724467; 567120, 3724466; 567120, 

3724465; 567119, 3724464; 567119, 

3724463; 567119, 3724462; 567118, 

3724461; 567117, 3724460; 567117, 

3724459; 567082, 3724391; 567079, 

3724385; 567078, 3724384; 567078, 

3724384; 567077, 3724383; 567077, 

3724382; 567076, 3724381; 567076, 

3724381; 567076, 3724380; 567075, 

3724380; 567075, 3724379; 567075, 

3724379; 567074, 3724378; 567074, 

3724378; 567074, 3724377; 567073, 

3724376; 567072, 3724375; 567072, 

3724374; 567071, 3724373; 567071, 

3724373; 567071, 3724372; 567070, 

3724372; 567070, 3724371; 567070, 

3724371; 567069, 3724370; 567069, 

3724370; 567069, 3724369; 567068, 

3724369; 567068, 3724368; 567067, 

3724367; 567066, 3724366; 567066, 

3724365; 567066, 3724365; 567066, 

3724364; 567065, 3724364; 567065, 

3724363; 567065, 3724363; 567064, 

3724362; 567064, 3724362; 567064, 

3724361; 567063, 3724361; 567063, 

3724360; 567062, 3724359; 567062, 

3724358; 567061, 3724357; 567061, 

3724357; 567061, 3724356; 567060, 

3724356; 567060, 3724355; 567060, 

3724355; 567059, 3724354; 567059, 

3724354; 567059, 3724354; 567059, 

3724353; 567058, 3724353; 567058, 

3724352; 567057, 3724351; 567056, 

3724350; 567056, 3724349; 567055, 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17357 

3724348; 567055, 3724348; 567055, 

3724347; 567054, 3724347; 567054, 

3724346; 567054, 3724345; 567039, 

3724324; 566895, 3724115; 566884, 

3724097; 566839, 3724025; 566839, 

3724025; 566838, 3724023; 566821, 

3723993; 566820, 3723992; 566820, 

3723991; 566820, 3723991; 566820, 

3723990; 566819, 3723990; 566819, 

3723990; 566819, 3723989; 566819, 

3723989; 566819, 3723988; 566818, 

3723988; 566818, 3723988; 566818, 

3723987; 566818, 3723987; 566818, 

3723987; 566817, 3723986; 566817, 

3723985; 566817, 3723984; 566816, 

3723984; 566816, 3723983; 566816, 

3723983; 566816, 3723982; 566816, 

3723982; 566816, 3723981; 566815, 

3723981; 566815, 3723980; 566815, 

3723980; 566815, 3723979; 566815, 

3723979; 566815, 3723978; 566814, 

3723978; 566814, 3723977; 566814, 

3723977; 566814, 3723976; 566814, 

3723976; 566814, 3723975; 566814, 

3723975; 566814, 3723974; 566814, 

3723974; 566813, 3723973; 566813, 

3723973; 566813, 3723972; 566813, 

3723972; 566813, 3723971; 566813, 

3723971; 566813, 3723970; 566813, 

3723970; 566813, 3723969; 566813, 

3723969; 566813, 3723968; 566812, 

3723968; 566812, 3723967; 566812, 

3723967; 566812, 3723966; 566812, 

3723966; 566812, 3723965; 566812, 

3723964; 566812, 3723964; 566812, 

3723964; 566812, 3723963; 566812, 

3723962; 566812, 3723962; 566812, 

3723962; 566812, 3723961; 566812, 

3723961; 566812, 3723960; 566812, 

3723960; 566812, 3723960; 566812, 

3723959; 566812, 3723958; 566812, 

3723958; 566812, 3723957; 566812, 

3723957; 566812, 3723956; 566812, 

3723956; 566812, 3723955; 566812, 

3723955; 566812, 3723954; 566812, 

3723954; 566812, 3723953; 566812, 

3723953; 566812, 3723952; 566812, 

3723951; 566812, 3723951; 566812, 

3723951; 566812, 3723950; 566812, 

3723950; 566813, 3723949; 566813, 

3723949; 566813, 3723948; 566813, 

3723947; 566813, 3723947; 566813, 

3723946; 566813, 3723945; 566813, 

3723944; 566814, 3723944; 566814, 

3723944; 566814, 3723943; 566814, 

3723943; 566814, 3723942; 566814, 

3723942; 566814, 3723941; 566814, 

3723941; 566814, 3723941; 566815, 

3723940; 566815, 3723940; 566815, 

3723939; 566815, 3723939; 566815, 

3723938; 566815, 3723938; 566815, 

3723937; 566816, 3723936; 566816, 

3723936; 566816, 3723935; 566816, 

3723935; 566817, 3723934; 566817, 

3723934; 566817, 3723933; 566817, 

3723932; 566818, 3723932; 566818, 

3723931; 566819, 3723930; 566819, 

3723929; 566819, 3723928; 566819, 

3723928; 566819, 3723928; 566671, 

3723064; 566260, 3722203; 566388, 

3720917; 566353, 3720941; 566309, 

3720971; 566293, 3721009; 566274, 

3721104; 566129, 3721224; 566033, 

3721260; 565979, 3721270; 565929, 

3721299; 565866, 3721304; 565805, 

3721314; 565738, 3721360; 565701, 

3721350; 565674, 3721325; 565625, 

3721325; 565563, 3721312; 565562, 

3721295; 565593, 3721249; 565653, 

3721198; 565713, 3721195; 565711, 

3721141; 565795, 3721105; 565837, 

3721053; 565887, 3721000; 565873, 

3720960; 565914, 3720923; 565964, 

3720933; 566048, 3720990; 566160, 

3720977; 566281, 3720895; 566354, 

3720846; 566351, 3720048; 566360, 

3720048; 566412, 3720050; 566456, 

3720051; 566458, 3720048; 566457, 

3720047; 566454, 3720018; 566442, 

3720000; 566437, 3719984; 566429, 

3719963; 566423, 3719950; 566417, 

3719935; 566406, 3719905; 566400, 

3719883; 566395, 3719847; 566399, 

3719820; 566424, 3719800; 566540, 

3719832; 566999, 3718635; 567828, 

3717445; 567827, 3717445; 567829, 

3717248; 567928, 3717248; 567929, 

3717165; 567939, 3717140; 567971, 

3717071; 567988, 3717040; 568014, 

3717016; 568023, 3717007; 568033, 

3716998; 568041, 3716990; 568074, 

3716970; 568095, 3716962; 568130, 

3716955; 568172, 3716953; 568253, 

3716953; 568338, 3716956; 568383, 

3716953; 568408, 3716950; 568432, 

3716940; 568731, 3716735; 568868, 

3716640; 568956, 3716595; 569647, 

3716127; 569648, 3716053; 569752, 

3716056; 570607, 3715478; 572371, 

3713796; 572894, 3712888; 572887, 

3712888; 572887, 3712879; 572896, 

3712879; 572899, 3712879; 573765, 

3711377; 574462, 3708958; 574216, 

3707153; 574298, 3706046; 575487, 

3704652; 576963, 3703504; 577258, 

3703086; 577373, 3702643; 577399, 

3702239; 577935, 3700356; 578628, 

3698965; 578791, 3698763; 578557, 

3698773; 577751, 3698805; 577343, 

3698821; 577106, 3698831; 576945, 

3698837; 576140, 3698869; 575492, 

3698895; 575417, 3698897; 575143, 

3699674; 574762, 3700457; 573744, 

3701312; 573761, 3701319; 573705, 

3701330; 572330, 3701986; 568229, 

3704405; 565194, 3706660; 563472, 

3709736; 563267, 3710843; 564169, 

3711499; 564702, 3712729; 564333, 

3714083; 563867, 3714714; 563618, 

3714947; 563515, 3715053; 563462, 

3715152; 563469, 3715251; 563434, 

3715340; 563397, 3715452; 563355, 

3715541; 563245, 3715540; 563208, 

3715425; 563139, 3715304; 563044, 

3715285; 561914, 3715805; 561616, 

3715959; 561616, 3715994; 561549, 

3715994; 559453, 3717076; 558346, 

3717568; 557485, 3717322; 554983, 

3717158; 554614, 3717404; 554573, 

3718921; 554447, 3719696; 554448, 

3719696; 554445, 3719707; 554327, 

3720439; 554179, 3720908; 554179, 

3720989; 554154, 3720988; 554068, 

3721263; 554083, 3721362; 554090, 

3721407; 554098, 3721458; 554128, 

3721481; 554148, 3721477; 554175, 

3721498; 554178, 3721519; 554219, 

3721553; 554219, 3721572; 554218, 

3721660; 554218, 3721768; 554218, 

3721789; 554126, 3721860; 554087, 

3721860; 554067, 3721861; 554067, 

3721862; 554067, 3721863; 554067, 

3721864; 554067, 3721866; 554067, 

3721867; 554067, 3721868; 554066, 

3721869; 554066, 3721870; 554066, 

3721871; 554066, 3721873; 554065, 

3721874; 554065, 3721875; 554064, 

3721876; 554064, 3721877; 554063, 

3721878; 554063, 3721879; 554062, 

3721880; 554046, 3721903; 554046, 

3721904; 554045, 3721905; 554044, 

3721906; 554044, 3721907; 554043, 

3721908; 554042, 3721909; 554041, 

3721910; 554041, 3721911; 554040, 

3721912; 554040, 3721913; 554039, 

3721914; 554038, 3721915; 554038, 

3721917; 554037, 3721918; 554037, 

3721919; 554036, 3721920; 554035, 

3721921; 554035, 3721922; 554034, 

3721923; 554034, 3721924; 554033, 

3721925; 554033, 3721926; 554032, 

3721927; 554032, 3721929; 554031, 

3721930; 554031, 3721931; 554031, 

3721932; 554030, 3721933; 554030, 

3721934; 554029, 3721935; 554029, 

3721937; 554028, 3721938; 554028, 

3721939; 554028, 3721940; 554027, 

3721941; 554027, 3721942; 554027, 

3721944; 554026, 3721945; 554026, 

3721946; 554026, 3721947; 554025, 

3721948; 554025, 3721949; 554025, 

3721951; 554025, 3721952; 553999, 

3721944; 553976, 3721944; 553975, 

3722106; 553974, 3722219; 553974, 

3722282; 553973, 3722374; 553883, 

3722373; 553766, 3722372; 553692, 

3722372; 553644, 3722371; 553488, 

3722370; 553366, 3722369; 553367, 

3722268; 553367, 3722255; 553367, 

3722115; 553368, 3721997; 553368, 

3721995; 553015, 3722079; 552072, 

3722079; 551826, 3722325; 551621, 

3722940; 550924, 3723924; 550473, 

3725155; 550719, 3725770; 551498, 

3726549; 551457, 3727574; 550596, 

3728599; 549324, 3729132; 547479, 

3730649; 546905, 3731511; 546126, 

3733438; 545593, 3735324; 545593, 

3736021; 546126, 3736842; 546659, 

3736924; 547192, 3736637; 548109, 

3735861; 548109, 3735861; 548109, 

3735860; 548109, 3735859; 548109, 

3735859; 548109, 3735858; 548109, 

3735858; 548109, 3735857; 548108, 

17358 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3735856; 548108, 3735856; 548108, 

3735855; 548108, 3735855; 548108, 

3735854; 548108, 3735853; 548108, 

3735853; 548099, 3735741; 548160, 

3735740; 548150, 3735603; 548130, 

3735533; 548155, 3735523; 548181, 

3735513; 548190, 3735509; thence 

returning to 548200, 3735505. 

(ii) Note: Map of Unit 2A, North Santa 

Rosa Mountains follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17359 

BILLING CODE 4310–55–C 


ER14AP09.002</GPH>
17360 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(8) Unit 2B: South Santa Rosa 

Mountains south to Vallecito 

Mountains, Riverside, San Diego, and 

Imperial Counties, California. 

(i) From USGS 1:24,000 quadrangles 

Agua Caliente Hot Springs, Arroyo 

Tapiado, Borrego Mountain, Borrego 

Mountain SE, Borrego Palm Canyon, 

Borrego Sink, Bucksnort Mountain, 

Carrizo Mountain NE, Clark Lake, Clark 

Lake NE, Collins Valley, Earthquake 

Valley, Fonts Point, Harper Canyon, 

Plaster City NW, Rabbit Peak, Seventeen 

Palms, Tubb Canyon, and Whale Peak. 

Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 552772, 

3702586; 552772, 3702567; 552801, 

3702567; 552801, 3702539; 552829, 

3702539; 552829, 3702511; 552914, 

3702511; 552914, 3702482; 552943, 

3702482; 552943, 3702454; 552971, 

3702454; 552971, 3702426; 552999, 

3702426; 552999, 3702397; 553113, 

3702397; 553113, 3702369; 553170, 

3702369; 553170, 3702340; 553198, 

3702340; 553198, 3702312; 553255, 

3702312; 553255, 3702284; 553311, 

3702284; 553311, 3702255; 553340, 

3702255; 553340, 3702284; 553368, 

3702284; 553368, 3702312; 553453, 

3702312; 553453, 3702284; 553538, 

3702284; 553538, 3702255; 553567, 

3702255; 553567, 3702227; 553624, 

3702227; 553624, 3702199; 553652, 

3702199; 553652, 3702227; 553709, 

3702227; 553709, 3702255; 553717, 

3702255; 554616, 3702119; 556163, 

3701891; 557619, 3701709; 559531, 

3701800; 560669, 3701800; 561670, 

3701390; 562899, 3700617; 564310, 

3699934; 569738, 3698190; 570758, 

3697602; 570758, 3697546; 570730, 

3697546; 570730, 3697433; 570702, 

3697433; 570702, 3697404; 570673, 

3697404; 570673, 3697262; 570702, 

3697262; 570702, 3697206; 570730, 

3697206; 570730, 3697177; 570787, 

3697177; 570787, 3697206; 570815, 

3697206; 570815, 3697234; 570900, 

3697234; 570900, 3697177; 570929, 

3697177; 570929, 3697149; 570957, 

3697149; 570957, 3697121; 571014, 

3697121; 571014, 3697092; 571042, 

3697092; 571042, 3697064; 571014, 

3697064; 571014, 3697036; 570985, 

3697036; 570985, 3696950; 570957, 

3696950; 570957, 3696894; 571212, 

3696894; 571212, 3696865; 571382, 

3696865; 571382, 3696752; 571411, 

3696752; 571411, 3696667; 571382, 

3696667; 571382, 3696553; 571411, 

3696553; 571411, 3696525; 571468, 

3696525; 571468, 3696497; 571496, 

3696497; 571496, 3696440; 571468, 

3696440; 571468, 3696326; 571439, 

3696326; 571439, 3696270; 571496, 

3696270; 571496, 3696241; 571524, 

3696241; 571524, 3696184; 571638, 

3696184; 571638, 3696156; 571666, 

3696156; 571666, 3696128; 571694, 

3696128; 571694, 3696071; 571723, 

3696071; 571723, 3696043; 571751, 

3696043; 571751, 3695901; 571723, 

3695901; 571723, 3695759; 571751, 

3695759; 571751, 3695731; 571780, 

3695731; 571780, 3695702; 571808, 

3695702; 571808, 3695645; 571836, 

3695645; 571836, 3695589; 571808, 

3695589; 571808, 3695532; 571780, 

3695532; 571780, 3695475; 571751, 

3695475; 571751, 3695447; 571723, 

3695447; 571723, 3695390; 571751, 

3695390; 571751, 3695362; 571723, 

3695362; 571723, 3695333; 571694, 

3695333; 571694, 3695192; 571723, 

3695192; 571723, 3695163; 571751, 

3695163; 571751, 3695192; 571836, 

3695192; 571836, 3695163; 571865, 

3695163; 571865, 3695078; 571978, 

3695078; 571978, 3695050; 572007, 

3695050; 572007, 3694993; 571978, 

3694993; 571978, 3694965; 571950, 

3694965; 571950, 3694879; 571978, 

3694879; 571978, 3694851; 572007, 

3694851; 572007, 3694823; 572063, 

3694823; 572063, 3694738; 572035, 

3694738; 572035, 3694709; 572007, 

3694709; 572007, 3694624; 571978, 

3694624; 571978, 3694596; 571921, 

3694596; 571921, 3694511; 571950, 

3694511; 571950, 3694369; 572092, 

3694369; 572092, 3694340; 572177, 

3694340; 572177, 3694312; 572205, 

3694312; 572205, 3694085; 572177, 

3694085; 572177, 3693830; 572319, 

3693830; 572319, 3693660; 572290, 

3693660; 572290, 3693546; 572319, 

3693546; 572319, 3693518; 572347, 

3693518; 572347, 3693489; 572404, 

3693489; 572404, 3693461; 572432, 

3693461; 572432, 3693489; 572460, 

3693489; 572460, 3693518; 572489, 

3693518; 572489, 3693546; 572517, 

3693546; 572517, 3693574; 572546, 

3693574; 572546, 3693603; 572602, 

3693603; 572602, 3693660; 572631, 

3693660; 572631, 3693688; 572687, 

3693688; 572687, 3693716; 572744, 

3693716; 572744, 3693773; 572801, 

3693773; 572801, 3693745; 572829, 

3693745; 572829, 3693716; 572858, 

3693716; 572858, 3693603; 572886, 

3693603; 572886, 3693575; 572914, 

3693575; 572914, 3693518; 572971, 

3693518; 572971, 3693489; 572999, 

3693489; 572999, 3693404; 573028, 

3693404; 573028, 3693149; 573056, 

3693149; 573056, 3693121; 573085, 

3693121; 573085, 3693007; 573113, 

3693007; 573113, 3692979; 573141, 

3692979; 573141, 3692950; 573170, 

3692950; 573170, 3692979; 573198, 

3692979; 573198, 3692950; 573312, 

3692950; 573312, 3692894; 573340, 

3692894; 573340, 3692837; 573368, 

3692837; 573368, 3692809; 573425, 

3692809; 573425, 3692752; 573453, 

3692752; 573453, 3692723; 573482, 

3692723; 573482, 3692667; 573510, 

3692667; 573510, 3692638; 573538, 

3692638; 573538, 3692610; 573567, 

3692610; 573567, 3692582; 573595, 

3692582; 573595, 3692525; 573624, 

3692525; 573624, 3692411; 573652, 

3692411; 573652, 3692355; 573680, 

3692355; 573680, 3692326; 573709, 

3692326; 573709, 3692270; 573737, 

3692270; 573737, 3692241; 573765, 

3692241; 573765, 3692184; 573794, 

3692184; 573794, 3692128; 573822, 

3692128; 573822, 3692071; 573879, 

3692071; 573879, 3692099; 573907, 

3692099; 573907, 3692326; 573879, 

3692326; 573879, 3692468; 573851, 

3692468; 573851, 3692610; 573822, 

3692610; 573822, 3692752; 573851, 

3692752; 573851, 3692780; 573822, 

3692780; 573822, 3692979; 573851, 

3692979; 574588, 3693121; 574588, 

3693064; 574560, 3693061; 574560, 

3693035; 574531, 3693035; 574531, 

3693007; 574503, 3693007; 574503, 

3692979; 574475, 3692979; 574475, 

3692865; 574560, 3692865; 574560, 

3692837; 574645, 3692837; 574645, 

3692780; 574730, 3692780; 574730, 

3692752; 574758, 3692752; 574758, 

3692695; 574730, 3692695; 574730, 

3692638; 574702, 3692638; 574702, 

3692582; 574730, 3692582; 574730, 

3692610; 574815, 3692610; 574815, 

3692553; 574843, 3692553; 574843, 

3692525; 574872, 3692525; 574872, 

3692411; 574900, 3692411; 574900, 

3692383; 574985, 3692383; 574985, 

3692496; 575014, 3692496; 575014, 

3692610; 575042, 3692610; 575042, 

3692667; 575127, 3692667; 575127, 

3692638; 575156, 3692638; 575156, 

3692610; 575184, 3692610; 575184, 

3692582; 575212, 3692582; 575212, 

3692553; 575326, 3692553; 575326, 

3692582; 575354, 3692582; 575354, 

3692610; 575382, 3692610; 575382, 

3692582; 575411, 3692582; 575411, 

3692525; 575439, 3692525; 575439, 

3692468; 575411, 3692468; 575411, 

3692355; 575439, 3692355; 575439, 

3692326; 575468, 3692326; 575468, 

3692298; 575553, 3692298; 575553, 

3692270; 575581, 3692270; 575581, 

3692213; 575553, 3692213; 575553, 

3692184; 575581, 3692184; 575581, 

3692128; 575609, 3692128; 575609, 

3692099; 575638, 3692099; 575638, 

3692071; 575609, 3692071; 575609, 

3692014; 575581, 3692014; 575581, 

3691957; 575553, 3691957; 575553, 

3691901; 575524, 3691901; 575524, 

3691787; 575581, 3691787; 575581, 

3691645; 575609, 3691645; 575609, 

3691589; 575666, 3691589; 575666, 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17361 

3691560; 575695, 3691560; 575695, 

3691504; 575723, 3691504; 575723, 

3691475; 575751, 3691475; 575751, 

3691447; 575780, 3691447; 575780, 

3691390; 575808, 3691390; 575808, 

3691362; 575836, 3691362; 575836, 

3691277; 575893, 3691277; 575893, 

3691305; 575921, 3691305; 575921, 

3691333; 575950, 3691333; 575978, 

3691333; 575978, 3691447; 575950, 

3691447; 575950, 3691532; 576007, 

3691532; 576007, 3691504; 576120, 

3691504; 576120, 3691475; 576148, 

3691475; 576148, 3691447; 576177, 

3691447; 576177, 3691248; 576205, 

3691248; 576205, 3691220; 576262, 

3691220; 576262, 3691248; 576319, 

3691248; 576319, 3691532; 576347, 

3691532; 576347, 3691617; 576375, 

3691617; 576375, 3691674; 576347, 

3691674; 576347, 3691759; 576404, 

3691759; 576404, 3691816; 576489, 

3691816; 576489, 3691759; 576517, 

3691759; 576517, 3691731; 576546, 

3691731; 576546, 3691702; 576574, 

3691702; 576574, 3691504; 576744, 

3691504; 576744, 3691447; 576716, 

3691447; 576716, 3691333; 576687, 

3691333; 576687, 3691305; 576659, 

3691305; 576659, 3691248; 576631, 

3691248; 576631, 3691163; 576687, 

3691163; 576687, 3691135; 576744, 

3691135; 576744, 3691021; 576716, 

3691021; 576716, 3690879; 576744, 

3690879; 576744, 3690851; 576801, 

3690851; 576801, 3690879; 576886, 

3690879; 576886, 3690851; 576943, 

3690851; 576943, 3690879; 576971, 

3690879; 576971, 3690908; 576943, 

3690908; 576943, 3690965; 576971, 

3690965; 576971, 3691050; 576999, 

3691050; 576999, 3691106; 577028, 

3691106; 577028, 3691191; 577056, 

3691191; 577056, 3691220; 577085, 

3691220; 577085, 3691248; 577170, 

3691248; 577170, 3691220; 577198, 

3691220; 577198, 3691191; 577226, 

3691191; 577226, 3691163; 577255, 

3691163; 577255, 3691135; 577283, 

3691135; 577283, 3691163; 577312, 

3691163; 577312, 3691191; 577340, 

3691191; 577340, 3691277; 577397, 

3691277; 577397, 3691248; 577453, 

3691248; 577453, 3691220; 577510, 

3691220; 577510, 3691248; 577567, 

3691248; 577567, 3691277; 577624, 

3691277; 577624, 3691248; 577652, 

3691248; 577652, 3691220; 577680, 

3691220; 577680, 3691191; 577737, 

3691191; 577737, 3691277; 577765, 

3691277; 577765, 3691305; 577794, 

3691305; 577794, 3691362; 577822, 

3691362; 577822, 3691390; 577851, 

3691390; 577851, 3691418; 577936, 

3691418; 577936, 3691447; 578021, 

3691447; 578021, 3691475; 578049, 

3691475; 578049, 3691560; 578021, 

3691560; 578021, 3691617; 577992, 

3691617; 577992, 3691731; 577964, 

3691731; 577964, 3691759; 577942, 

3691813; 577944, 3691860; 577997, 

3691933; 578006, 3692036; 578030, 

3692165; 578021, 3692284; 577993, 

3692375; 577954, 3692414; 577905, 

3692446; 577824, 3692457; 577748, 

3692443; 577660, 3692384; 577557, 

3692341; 577449, 3692316; 577381, 

3692264; 577315, 3692216; 577182, 

3692146; 577141, 3692070; 577077, 

3692027; 577006, 3692042; 576933, 

3691993; 576879, 3691970; 576836, 

3691965; 576798, 3691978; 576773, 

3692043; 576744, 3692043; 576744, 

3692383; 576659, 3692383; 576659, 

3692411; 576574, 3692411; 576574, 

3692440; 576460, 3692440; 576460, 

3692468; 576404, 3692468; 576404, 

3692496; 576290, 3692496; 576290, 

3692525; 576234, 3692525; 576234, 

3692582; 576177, 3692582; 576177, 

3692610; 576148, 3692610; 576148, 

3692638; 576092, 3692638; 576092, 

3692723; 576063, 3692723; 576063, 

3692809; 576092, 3692809; 576092, 

3692837; 576063, 3692837; 576063, 

3692979; 576035, 3692979; 576035, 

3693036; 576007, 3693036; 576007, 

3693121; 575978, 3693121; 575978, 

3693149; 575950, 3693149; 575950, 

3693177; 575921, 3693177; 575921, 

3693149; 575836, 3693149; 575836, 

3693177; 575723, 3693177; 575723, 

3693262; 575751, 3693262; 575751, 

3693348; 575780, 3693348; 575780, 

3693376; 575808, 3693376; 575808, 

3693404; 575780, 3693404; 575780, 

3693433; 575638, 3693433; 575638, 

3693404; 575524, 3693404; 575524, 

3693433; 575439, 3693433; 575439, 

3693404; 575382, 3693404; 575382, 

3693433; 575241, 3693433; 575241, 

3693489; 575212, 3693489; 575212, 

3693518; 575127, 3693518; 575127, 

3693489; 575099, 3693489; 575099, 

3693433; 575070, 3693433; 575070, 

3693461; 575014, 3693461; 575014, 

3693546; 574985, 3693546; 574985, 

3693575; 575014, 3693575; 575014, 

3693603; 574985, 3693603; 574985, 

3693631; 574957, 3693631; 574957, 

3693603; 574929, 3693603; 574882, 

3693602; 574694, 3694053; 574529, 

3694524; 574506, 3694971; 574529, 

3695794; 574647, 3696406; 574906, 

3696664; 575258, 3696758; 575280, 

3696752; 575274, 3696773; 575645, 

3697220; 575513, 3698626; 575417, 

3698897; 575492, 3698895; 576140, 

3698869; 576945, 3698837; 577106, 

3698831; 577343, 3698821; 577751, 

3698805; 578557, 3698773; 578791, 

3698763; 579475, 3697914; 580051, 

3696677; 579551, 3693708; 582948, 

3690942; 583903, 3689828; 584752, 

3688448; 585283, 3687440; 585601, 

3686060; 585176, 3685052; 584327, 

3684415; 583001, 3683885; 581412, 

3683518; 578544, 3683407; 573769, 

3685728; 571103, 3688624; 569357, 

3691796; 568621, 3693129; 566231, 

3694186; 563703, 3695151; 561175, 

3695013; 558785, 3695335; 558279, 

3694324; 558279, 3693450; 559382, 

3692439; 560945, 3692347; 563703, 

3692072; 564438, 3691198; 565312, 

3687981; 565266, 3686326; 564209, 

3684533; 563611, 3684809; 558831, 

3689222; 557452, 3689314; 556533, 

3689176; 556165, 3688256; 554924, 

3681592; 554740, 3679385; 555843, 

3676536; 556900, 3673686; 559934, 

3670560; 564071, 3668400; 571333, 

3665412; 576113, 3663390; 580066, 

3661735; 582640, 3660448; 583515, 

3655760; 585457, 3653852; 588867, 

3652806; 590732, 3652397; 592550, 

3651942; 594597, 3650441; 595642, 

3648486; 595506, 3647213; 594960, 

3645894; 593824, 3644985; 591505, 

3645076; 589095, 3645485; 587412, 

3646167; 583884, 3649167; 581648, 

3650315; 578804, 3650497; 574811, 

3651340; 572685, 3651727; 570688, 

3651276; 569658, 3650825; 568964, 

3650527; 568047, 3650310; 567279, 

3650197; 566460, 3650255; 565466, 

3650948; 564605, 3651791; 564019, 

3652596; 563917, 3652839; 563977, 

3653013; 564098, 3653155; 564244, 

3653230; 564404, 3653262; 564518, 

3653262; 564546, 3653262; 564546, 

3653205; 564575, 3653205; 564575, 

3653177; 564631, 3653177; 564631, 

3653205; 564688, 3653205; 564688, 

3653233; 564716, 3653233; 564716, 

3653262; 564773, 3653262; 564773, 

3653290; 564830, 3653290; 564830, 

3653319; 564858, 3653319; 564858, 

3653347; 564915, 3653347; 564915, 

3653319; 565057, 3653319; 565057, 

3653347; 565142, 3653347; 565142, 

3653319; 565227, 3653319; 565227, 

3653290; 565539, 3653290; 565539, 

3653262; 565567, 3653262; 565567, 

3653233; 565596, 3653233; 565596, 

3653205; 565624, 3653205; 565624, 

3653148; 565596, 3653148; 565596, 

3653092; 565709, 3653092; 565709, 

3653063; 565738, 3653063; 565738, 

3653035; 565794, 3653035; 565794, 

3653006; 565823, 3653006; 565823, 

3652978; 565851, 3652978; 565851, 

3652950; 565936, 3652950; 565936, 

3652978; 565965, 3652978; 565965, 

3653006; 565993, 3653006; 565993, 

3653035; 566021, 3653035; 566021, 

3653063; 566078, 3653063; 566078, 

3653148; 566050, 3653148; 566050, 

3653177; 566021, 3653177; 566021, 

3653205; 566135, 3653205; 566135, 

3653177; 566163, 3653177; 566163, 

3653205; 566192, 3653205; 566192, 

3653262; 566220, 3653262; 566220, 

3653290; 566277, 3653290; 566277, 

17362 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

3653319; 566305, 3653319; 566305, 

3653375; 566277, 3653375; 566277, 

3653404; 566248, 3653404; 566248, 

3653432; 566277, 3653432; 566277, 

3653517; 566248, 3653517; 566248, 

3653574; 566305, 3653574; 566305, 

3653631; 566277, 3653631; 566277, 

3653659; 566248, 3653659; 566248, 

3653687; 566192, 3653687; 566192, 

3653659; 566135, 3653659; 566135, 

3653744; 566163, 3653744; 566163, 

3653801; 566192, 3653801; 566192, 

3653829; 566248, 3653829; 566248, 

3653801; 566277, 3653801; 566277, 

3653772; 566333, 3653772; 566333, 

3653744; 566390, 3653744; 566390, 

3653716; 566560, 3653716; 566560, 

3653687; 566589, 3653687; 566589, 

3653659; 566645, 3653659; 566645, 

3653631; 566674, 3653631; 566674, 

3653602; 566702, 3653602; 566702, 

3653574; 566731, 3653574; 566731, 

3653545; 566759, 3653545; 566759, 

3653517; 566844, 3653517; 566844, 

3653489; 566816, 3653489; 566816, 

3653460; 566787, 3653460; 566787, 

3653432; 566759, 3653432; 566759, 

3653404; 566731, 3653404; 566731, 

3653347; 566702, 3653347; 566702, 

3653319; 566674, 3653319; 566674, 

3653262; 566645, 3653262; 566645, 

3653233; 566589, 3653233; 566589, 

3653205; 566560, 3653205; 566560, 

3653233; 566532, 3653233; 566532, 

3653177; 566504, 3653177; 566504, 

3653148; 566532, 3653148; 566532, 

3653092; 566560, 3653092; 566560, 

3653063; 566589, 3653063; 566589, 

3653035; 566674, 3653035; 566674, 

3653063; 566731, 3653063; 566731, 

3653092; 566759, 3653092; 566759, 

3653120; 566787, 3653120; 566787, 

3653148; 566872, 3653148; 566872, 

3653177; 566957, 3653177; 566957, 

3653205; 566986, 3653205; 566986, 

3653233; 567014, 3653233; 567014, 

3653290; 566986, 3653290; 566986, 

3653319; 566957, 3653319; 566957, 

3653347; 566901, 3653347; 566901, 

3653375; 566872, 3653375; 566872, 

3653432; 566901, 3653432; 566901, 

3653489; 566957, 3653489; 566957, 

3653517; 567071, 3653517; 567071, 

3653489; 567241, 3653489; 567241, 

3653517; 567355, 3653517; 567355, 

3653545; 567440, 3653545; 567440, 

3653517; 567468, 3653517; 567468, 

3653489; 567496, 3653489; 567496, 

3653432; 567553, 3653432; 567553, 

3653460; 567582, 3653460; 567582, 

3653489; 567638, 3653489; 567638, 

3653517; 567667, 3653517; 567667, 

3653489; 567780, 3653489; 567780, 

3653545; 567752, 3653545; 567752, 

3653602; 567723, 3653602; 567723, 

3653631; 567695, 3653631; 567695, 

3653659; 567667, 3653659; 567667, 

3653687; 567638, 3653687; 567638, 

3653829; 567610, 3653829; 567610, 

3653943; 567468, 3653943; 567468, 

3653914; 567411, 3653914; 567411, 

3653886; 567355, 3653886; 567355, 

3653858; 567298, 3653858; 567298, 

3653829; 567270, 3653829; 567270, 

3653858; 567184, 3653858; 567184, 

3653886; 567156, 3653886; 567156, 

3653914; 567099, 3653914; 567099, 

3653943; 567071, 3653943; 567071, 

3653971; 567099, 3653971; 567099, 

3654028; 567128, 3654028; 567128, 

3654056; 567156, 3654056; 567156, 

3654084; 567241, 3654084; 567241, 

3654113; 567298, 3654113; 567298, 

3654141; 567355, 3654141; 567355, 

3654340; 567383, 3654340; 567383, 

3654397; 567298, 3654397; 567298, 

3654425; 567270, 3654425; 567270, 

3654510; 567326, 3654510; 567326, 

3654595; 567270, 3654595; 567270, 

3654624; 567156, 3654624; 567156, 

3654652; 567128, 3654652; 567128, 

3654680; 567071, 3654680; 567071, 

3654709; 567014, 3654709; 566216, 

3654880; 565299, 3655720; 564154, 

3656560; 563753, 3657028; 562755, 

3657358; 562092, 3657629; 561252, 

3657782; 560641, 3658164; 558413, 

3659512; 557263, 3660178; 557445, 

3662054; 557021, 3663264; 556335, 

3663929; 556009, 3665045; 555823, 

3665882; 555172, 3666626; 554521, 

3667556; 554196, 3668486; 554010, 

3669462; 554242, 3670113; 554661, 

3670585; 554903, 3671311; 552665, 

3672703; 552483, 3673973; 551273, 

3676030; 550747, 3676670; 550555, 

3677054; 550555, 3677601; 550849, 

3678390; 551092, 3679540; 550870, 

3680865; 550929, 3680865; 550929, 

3680893; 550957, 3680893; 550957, 

3680922; 550985, 3680922; 550985, 

3680950; 551127, 3680950; 551127, 

3680922; 551156, 3680922; 551156, 

3680950; 551354, 3680950; 551354, 

3680978; 551383, 3680978; 551383, 

3681035; 551411, 3681035; 551411, 

3681092; 551383, 3681092; 551383, 

3681120; 551354, 3681120; 551354, 

3681149; 551326, 3681149; 551326, 

3681205; 551298, 3681205; 551298, 

3681262; 551269, 3681262; 551269, 

3681319; 551298, 3681319; 551298, 

3681461; 551326, 3681461; 551326, 

3681574; 551298, 3681574; 551298, 

3681603; 551127, 3681603; 551127, 

3681631; 551099, 3681631; 551099, 

3681659; 551071, 3681659; 551071, 

3681688; 551042, 3681688; 551042, 

3681716; 550985, 3681716; 550985, 

3681688; 550957, 3681688; 550957, 

3681631; 550929, 3681631; 550929, 

3681603; 550872, 3681603; 550872, 

3681574; 550844, 3681574; 550844, 

3681546; 550702, 3681546; 550702, 

3681517; 550617, 3681517; 550617, 

3681546; 550416, 3681546; 550333, 

3681652; 550333, 3681659; 550327, 

3681659; 550305, 3681688; 550305, 

3681716; 550283, 3681716; 550276, 

3681724; 550276, 3681744; 550261, 

3681744; 549760, 3682384; 549700, 

3683291; 550486, 3684441; 551515, 

3685469; 550849, 3686679; 549518, 

3689342; 548671, 3690854; 546070, 

3695090; 544980, 3695937; 544617, 

3696905; 545888, 3697631; 546191, 

3698478; 545222, 3699809; 545172, 

3700536; 544779, 3700891; 543838, 

3701122; 543700, 3701200; 543600, 

3701200; 543600, 3701500; 543769, 

3701639; 544355, 3701901; 544740, 

3702171; 545195, 3702271; 547397, 

3702286; 547571, 3702255; 547729, 

3702212; 547826, 3702175; 547943, 

3702114; 548059, 3702055; 548190, 

3701939; 548253, 3701863; 548253, 

3701768; 548209, 3701711; 548133, 

3701673; 547949, 3701603; 547891, 

3701565; 547891, 3701476; 548006, 

3701380; 548076, 3701279; 548203, 

3701234; 548317, 3701247; 548431, 

3701272; 548602, 3701347; 548744, 

3701347; 548744, 3701376; 548772, 

3701376; 548772, 3701461; 548801, 

3701461; 548801, 3701489; 548886, 

3701489; 549375, 3701732; 549903, 

3701990; 550456, 3702236; 551046, 

3702494; 551673, 3702715; 552177, 

3702794; 552296, 3702778; 552431, 

3702734; 552589, 3702681; 552696, 

3702627; thence returning to 552772, 

3702586. 

(ii) Note: Map of Unit 2B, South Santa 

Rosa Mountains south to Vallecito 

Mountains follows: 

BILLING CODE 4310–55–P 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17363 


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17364 Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 

(9) Unit 3: Carrizo Canyon, San Diego 

and Imperial Counties, California. 

(i) From USGS 1:24,000 quadrangles 

Agua Caliente Hot Springs, Arroyo 

Tapiado, Carrizo Mountain, In-Ko-Pah 

Gorge, Jacumba, Painted Gorge, 

Sombrero Peak, and Sweeney Pass. 

Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1927 

(NAD27) coordinates (E, N): 574159, 

3634261; 574922, 3634108; 575915, 

3634261; 577290, 3634566; 578359, 

3634566; 579199, 3634261; 580039, 

3633879; 581032, 3633421; 582406, 

3633192; 583705, 3632810; 584697, 

3632810; 586225, 3633039; 587370, 

3633497; 588134, 3633726; 588821, 

3633879; 589738, 3634795; 589508, 

3635253; 589738, 3635635; 590119, 

3635941; 590959, 3635941; 591952, 

3635559; 592792, 3635406; 593632, 

3634871; 594320, 3634031; 595083, 

3632810; 595771, 3631511; 596000, 

3630519; 595923, 3629679; 595312, 

3628915; 594702, 3628304; 594167, 

3628075; 592411, 3627998; 591189, 

3627998; 590425, 3627998; 589280, 

3628228; 588058, 3628915; 587141, 

3629144; 586301, 3629449; 585003, 

3629984; 583857, 3630595; 583170, 

3630748; 582330, 3630671; 581566, 

3630824; 580650, 3630824; 579581, 

3630671; 578664, 3629679; 578283, 

3628915; 578283, 3628151; 578206, 

3626700; 578130, 3625784; 577595, 

3625631; 577290, 3625326; 577214, 

3624791; 577290, 3623951; 577825, 

3623187; 578512, 3622653; 579275, 

3621736; 580039, 3621126; 583136, 

3619091; 585446, 3617261; 585698, 

3616826; 585744, 3615522; 585561, 

3614538; 584920, 3613898; 584193, 

3613692; 583552, 3613600; 583021, 

3614241; 582399, 3615485; 581960, 

3616712; 580596, 3618451; 580070, 

3618565; 579046, 3618300; 578054, 

3617918; 578061, 3617609; 577347, 

3616950; 576981, 3616492; 576221, 

3616085; 575763, 3615856; 574923, 

3615933; 574159, 3616238; 573548, 

3616620; 573013, 3616849; 572326, 

3617154; 571562, 3617765; 570875, 

3618453; 570799, 3618987; 570417, 

3619751; 570493, 3620515; 570722, 

3621813; 570722, 3622500; 570722, 

3623493; 570646, 3624333; 570417, 

3625097; 570417, 3625937; 570188, 

3626700; 570417, 3627846; 572249, 

3630519; 572555, 3631664; 572478, 

3632657; 572020, 3633955; 571486, 

3634872; 570951, 3635864; 570187, 

3637239; 569729, 3637774; 569042, 

3638156; 568125, 3638308; 567209, 

3638614; 566674, 3638996; 566522, 

3639606; 566216, 3640294; 565911, 

3641134; 565681, 3641668; 565376, 

3642050; 564841, 3642508; 564460, 

3642890; 564536, 3643425; 565147, 

3644265; 565452, 3645029; 567132, 

3644799; 568278, 3644189; 569271, 

3643501; 569958, 3642508; 570111, 

3641897; 570874, 3641668; 571715, 

3640676; 572249, 3639072; 572937, 

3638232; 573318, 3637086; 573318, 

3635635; 573548, 3634643; thence 

returning to 574159, 3634261. 

(ii) Note: Map of Unit 3, Carrizo 

Canyon follows: 

Federal Register / Vol. 74, No. 70 / Tuesday, April 14, 2009 / Rules and Regulations 17365 

* * * * * 

Dated: March 31, 2009. 

Will Shafroth, 

Deputy Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. E9–7767 Filed 4–13–09; 8:45 am] 

BILLING CODE 4310–55–P 


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