21450 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018–AH61

Endangered and Threatened Wildlife

and Plants; Final Determination of

Critical Habitat for the Bay

Checkerspot Butterfly (Euphydryas

editha bayensis)

AGENCY: Fish and Wildlife Service,

Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and

Wildlife Service (Service), designate

critical habitat for the bay checkerspot

butterfly (Euphydryas editha bayensis)

(bay checkerspot), pursuant to the

Endangered Species Act of 1973, as

amended (Act). A total of approximately

9,673 hectares (23,903 acres) in San

Mateo and Santa Clara counties,

California, is designated as critical

habitat.

Critical habitat identifies specific

areas that have the physical and

biological features that are essential to

the conservation of a listed species, and

that may require special management

considerations or protection. The

primary constituent elements for the bay

checkerspot are one or more of the

following: stands of Plantago erecta,

Castilleja exserta, or Castilleja

densiflora; spring flowers providing

nectar; pollinators of the bay

checkerspot’s food and nectar plants;

soils derived from serpentinic rock; and

space for dispersal between habitable

areas. In addition, the following are

each primary constituent elements to be

conserved when present in combination

with one or more of the primary

constituent elements above: areas of

open grassland, topography with varied

slopes and aspects providing surface

conditions with warm and moderate to

cool temperatures during sunny spring

days, stable holes or cracks in the soil

and surface rocks or rock outcrops,

wetlands providing moisture during

times of spring drought.

In addition, the following are each

primary constituent elements to be

conserved when present in combination

with one or more of the primary

constituent elements above: areas of

open grassland, topography with varied

slopes and aspects, stable holes or

cracks in the soil and surface rocks or

rock outcrops, and wetlands providing

moisture during times of spring drought.

Section 7 of the Act prohibits

destruction or adverse modification of

critical habitat by any activity funded,

authorized, or carried out by any

Federal agency. Section 4 of the Act

requires us to consider economic and

other impacts of specifying any

particular area as critical habitat. We

solicited data and comments from the

public on all aspects of the proposed

rule and economic analysis. We revised

the proposal to incorporate or address

new information received during the

comment periods.

DATES: This rule becomes effective on

May 30, 2001.

ADDRESSES: Comments and materials

received, as well as supporting

documentation used in the preparation

of this final rule, will be available for

public inspection, by appointment,

during normal business hours at the

Sacramento Fish and Wildlife Office,

U.S. Fish and Wildlife Service, 2800

Cottage Way, Room W2605, Sacramento,

California 95825.

FOR FURTHER INFORMATION CONTACT:

David Wright or Chris Nagano at the

address above (telephone 916/414–6600;

facsimile 916/414–6712).

SUPPLEMENTARY INFORMATION:

Background

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

5 centimeters (2 inches (in.)). The

forewings have black bands along all the

veins on the upper wing surface,

contrasting sharply with bright red,

yellow, and white spots. The bay

checkerspot is 1 of about 20 subspecies

of Euphydryas editha (Miller and Brown

1981), and differs in physical

appearance from other subspecies in a

variety of size, wing coloration, larval,

and pupal characteristics (Howe 1975;

Mattoni et al. 1997). It differs from

LuEsther’s checkerspot (Euphydryas

editha luestherae), (a later-flying,

Pedicularis-feeding subspecies of Inner

Coast Range chaparral in central

California), by being darker, and lacking

a relatively uninterrupted red band

demarcating the outer third of the wing.

The black banding on the forewings of

the bay checkerspot gives a more

checkered appearance than the smaller

quino checkerspot butterfly

(Euphydryas editha quino) of southern

California (Service 1998).

Recent publications have advocated

renaming the bay checkerspot,

Euphydryas editha bayensis, as

Euphydryas editha editha for reasons of

historical precedence (Mattoni et al.

1997; Emmel et al. 1998). Mattoni and

co-authors (1997) have also suggested

that Euphydryas editha editha ranges

from the San Francisco Bay area south

to northern Santa Barbara County in

California, and includes both the

populations commonly known as the

bay checkerspot and several populations

south of Santa Clara County whose

subspecific status has been uncertain. If

this expanded subspecific assignment is

accepted by the scientific community, it

would represent a range extension for

the bay checkerspot. Until such time as

we make any new or revised

determination on the taxonomy, in this

final rule, we treat the threatened bay

checkerspot as occurring in San

Francisco Bay area counties, notably the

counties of San Mateo and Santa Clara,

as described in the final rule for the

subspecies (52 FR 35378).

The bay checkerspot formerly

occurred around San Francisco Bay,

from Twin Peaks and San Bruno

Mountain (west of the Bay) and Contra

Costa County (east of the Bay), south

through Santa Clara County. Before the

introduction of invasive Eurasian

grasses and other weeds in the 1700s, its

distribution may have been wider

(Service 1998). In the decades preceding

listing, the decline of the bay

checkerspot was primarily attributed to

loss of habitat and fragmentation of

habitat due to increasing urbanization.

Drought and other extremes of weather

have also been implicated in bay

checkerspot population declines

(Ehrlich et al. 1980; Service 1998).

Recent research has identified excess

nitrogen deposition from polluted air as

a threat to bay checkerspot habitats, due

to its fertilizing effect enhancing the

growth of invasive nonnative plants

even in serpentine soil areas (Weiss

1999).

Habitat of the bay checkerspot most

commonly is found on shallow,

serpentine-derived or similarly

droughty or infertile soils, which

support the butterfly’s larval food plants

and also includes nectar sources for

adults that may also occur on other

adjacent soil types. Serpentine soils are

high in magnesium and low in calcium,

and are a strong indicator of habitat

value for the bay checkerspot. The

primary larval host plant of the bay

checkerspot is Plantago erecta (dwarf

plantain), an annual, native plantain.

The bay checkerspot usually is found

associated with Plantago erecta in

grasslands on serpentine soils, such as

soils in the Montara series. In Santa

Clara County, the Inks and Climara soil

series are related soils and often have

inclusions of Montara (U.S. Soil

Conservation Service 1974). Henneke

and other serpentine soils also occur

within the range of the bay checkerspot.

Populations of the bay checkerspot

formerly occurred on San Bruno

Mountain and other locations with soils

that are not serpentine. We believe this

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21451

indicates that, with otherwise suitable

habitat conditions, the bay checkerspot

is capable of living in nonserpentine

soil areas.

Serpentine soils are well known for

harboring rare and endemic plant

species, and because the bay

checkerspot inhabits serpentine areas,

our critical habitat designation for the

bay checkerspot overlaps habitat of

several federally listed plant species: the

San Mateo thornmint (Acanthomintha

obovata ssp. duttonii), Santa Clara

Valley dudleya (Dudleya setchellii),

Coyote ceanothus (Ceanothus ferrisae),

Tiburon paintbrush (Castilleja affinis

ssp. neglecta), fountain thistle (Cirsium

fontinale var. fontinale), Marin dwarf

flax (Hesperolinon congestum), whiterayed pentachaeta (Pentachaeta

bellidiflora), and Metcalf Canyon

jewelflower (Streptanthus albidus ssp.

albidus) (Service 1998). However, bay

checkerspot critical habitat does not

include all the habitat essential to any

of these plant species. Bay checkerspot

critical habitat is also coincident with

habitat for a number of rare plants and

animals that are not federally listed

(Service 1998).

In many years, bay checkerspot larvae

may use a secondary host plant species,

for instance, when dwarf plantain dries

up while prediapause larvae are still

feeding. Castilleja (Orthocarpus)

densiflora (purple owl’s-clover) and

Castilleja exserta (Orthocarpus

purpurascens) (exserted paintbrush) are

known secondary host plants that often

remain edible later in the season than

dwarf plantain. Bay checkerspot adults

also visit flowers for nectar. Nectar

plants commonly visited include

Lomatium spp. (desert parsley),

Lasthenia californica (= chrysostoma)

(California goldfields), Layia platyglossa

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

Moderate grazing is normally

compatible with habitat for the bay

checkerspot, since grazing can reduce

the density and height of nonnative

plants that compete with the native

plants supporting the butterfly.

The bay checkerspot’s life cycle is

closely tied to host plant biology. Host

plants germinate anytime from early

October to late December, and senesce

(dry up and die) from early April to mid

May. Most of the active parts of the bay

checkerspot life cycle also occur during

this period. Adults emerge from pupae

(a transitional stage between caterpillar

and adult butterfly) in early spring, and

feed on nectar, mate, and lay eggs

during a flight season that typically lasts

for 4 to 6 weeks in the period between

late February to early May. The eggs

hatch and the tiny larvae feed for about

2 to 3 weeks before entering diapause (a

temporary cessation of development) in

mid to late spring. The postdiapause

larvae emerge after winter rains

stimulate germination of Plantago, and

feed and bask until they are large

enough to pupate and emerge as adults

(Service 1998). If insufficient food is

available, a post-diapause checkerspot

larva can re-enter diapause and emerge

again one year or more later (Singer and

Ehrich 1979; Mattoni et al. 1997).

Most Euphydryas editha subspecies

exhibit generally sedentary behavior,

with adults frequently remaining in the

same habitat patch in which they

developed as larvae (Ehrlich 1961, 1965;

Boughton 1999, 2000). Female bay

checkerspots were found to be more

likely to emigrate than males (Ehrlich et

al. 1984). When female Euphydryas

editha butterflies fail to encounter

preferred host plants, the likelihood of

emigration to other suitable habitat

patches increases (Thomas and Singer

1987). Adult dispersal by the bay

checkerspot is typically less than 150

meters (490 feet) between recaptures

(Ehrlich 1961, Ehrlich 1965, Gilbert and

Singer 1973). However, Harrison (1989)

recaptured bay checkerspots greater

than 1 kilometer (0.6 mile) from the

point of release in 5 percent of cases.

Long-distance dispersal in bay

checkerspot butterflies has been

documented as far as 7.6 km (4.7 miles)

(D. Murphy pers. comm.), 5.6 km (3.5

miles) (1 male), and 3 km (2 miles) (1

female) (Harrison 1989). The butterflies

are likely to be capable of dispersing

even longer distances. In all dispersal

observations and experiments, longdistance movements are hard to detect,

and thus their frequency and

importance are difficult to quantify.

Qualitative observations suggest that

bay checkerspots move readily over

suitable grassland habitat, but are more

reluctant to cross scrub, woodland or

other unsuitable habitat. Roads,

especially, those traveled more heavily

and at higher speeds, present a risk of

death or injury to dispersing butterflies.

Where corridors that facilitate dispersal

exist, they may support the persistence

of bay checkerspot populations.

Long-distance habitat patch

colonization may be achieved within a

single season through long-distance

dispersal of individual butterflies, or

over several seasons through steppingstone habitat patch colonization and

dispersal events. In one study of the

Santa Clara County bay checkerspot

metapopulation, no colonizations of

unoccupied habitat patches farther than

4.5 kilometers (2.8 miles) from the

source population were detected over a

10-year period (Harrison et al. 1988). A

mathematical model of unknown

accuracy predicted satellite habitat

patches at a distance greater than 7 to

8 kilometers (4 to 5 miles) from a

primary source population were not

likely to support populations (Harrison

et al. 1988).

The known range of the bay

checkerspot is now reduced to Santa

Clara and San Mateo counties, and it is

patchily distributed in these locales.

Studies of the bay checkerspot have

described its distribution as an example

of a metapopulation (see literature cited

in Service 1998). A metapopulation is a

group of spatially separated populations

that can occasionally exchange

dispersing individuals. The populations

in a metapopulation are usually thought

of as undergoing interdependent

extinction and colonization, where

individual populations may go extinct,

but later recolonize from another

population. That is, although member

populations may change in size

independently, their probabilities of

existing at a given time are not

independent of one another because

they are linked by processes of

extinction and mutual recolonization,

processes that occur on the order of

every 10 to 100 generations (Harrison et

al. 1988). The ability and propensity of

larvae to undergo multiple-year

diapause in the field, and survival rates

during repeated diapause, all currently

unquantified, will also affect the

persistence time of local populations.

Bay checkerspot populations may also

exhibit ‘‘’pseudo-extinction,’’’ where the

species is not found, but nonetheless

continues to inhabit a site and reappears

in a subsequent year. Since the early

stages of the bay checkerspot are

extremely difficult or impossible to

locate in surveys (White 1987), the

failure to discover caterpillars that

diapause for more than 1 year may be

responsible for pseudo-extinctions.

Because of pseudo-extinction and

metapopulation dynamics, even sites

that in some years apparently lack the

bay checkerspot are important to the

survival and recovery of the species.

The timescale of bay checkerspot

metapopulation dynamics, which

includes boom and bust fluctuations of

site populations, effects of California’s

variable climate, extirpations (loss of

local populations) and recolonizations,

is on the scale of decades to centuries,

much longer than typical human

planning efforts. Adequacy of

designated critical habitat lands for

conservation of the bay checkerspot

depends on long-term persistence of the

species’ Santa Clara and San Mateo

metapopulations, through conservation

of many habitat patches and

opportunity for dispersal/

21452 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

recolonization /gene flow events that

link populations in the

metapopulations. Such dispersal events

must include long-distance

colonizations that are rare because they

occur during unusually favorable years

or sequences of years for the bay

checkerspot, resulting in population

booms and many more dispersing

butterflies.

Bay checkerspot populations vary

greatly from year to year. Many or most

individuals of the species live only a

single year, and with high fecundity

(fertility), high mortality, and sensitivity

to weather and perhaps other ecological

conditions, large population swings are

common for the bay checkerspot.

Fluctuations of more than 100-fold have

been observed. These fluctuations are

not always in synchrony among

populations at different sites.

Weiss et al. (1988) and Murphy and

Rehm (1992) found that the populations

of the bay checkerspot butterfly take

refuge during dry years largely on cool

north- and northeast-facing serpentine

grassland slopes. However, they

reported that during years of aboveaverage rainfall the species expands its

population on warmer slopes, including

more xeric south- and west-facing

slopes. Although infrequent and shortterm, such expansions can contribute to

the long-term metapopulation

persistence, especially for a species like

the bay checkerspot, whose numbers are

regulated more by environmental factors

than population density. Murphy and

White (1984) stated that long-distance

dispersal events associated with

population outbreaks may contribute

significantly to colonization or

recolonization of unoccupied areas and

hence to long-term survival of the

checkerspot butterflies.

Habitat areas that appear to be low

quality or are temporarily low quality,

therefore, can be essential to the longterm persistence of bay checkerspot

populations, which reside in habitats

vulnerable to highly variable or

catastrophic environmental phenomena,

such as drought, or habitat destruction

caused by urban development. Patches

of habitat, whether of high or marginal

quality, can serve as ‘‘stepping stones’’

for regional metapopulations. These

patches can facilitate gene flow between

small populations and can provide

routes for individuals to colonize

surrounding habitats that have been

subject to local extinction. Loss of

temporarily empty ‘‘stepping stone’’

habitat patches would disrupt the

dynamics of the entire bay checkerspot

metapopulation. According to Murphy

(1990) ‘‘* * * the necessity of

protecting remnants of once extensive

metapopulations will demand the

protection of both presently occupied

habitat patches and those which may be

presently unoccupied, but which can

support the bay checkerspot under

certain climatic conditions.’’

Previous Federal Action

On October 21, 1980, we were

petitioned by Dr. Bruce O. Wilcox,

Dennis D. Murphy, and Dr. Paul R.

Ehrlich to list the bay checkerspot as an

endangered species. We published a

Notice of Status Review on February 13,

1981 (46 FR 12214). Following our

status review, we found that listing the

bay checkerspot was warranted but

precluded by other pending listing

actions (49 FR 2485). We proposed the

bay checkerspot for listing as

endangered with critical habitat on

September 11, 1984 (49 FR 35665), and

listed the subspecies as threatened on

September 18, 1987 (52 FR 35366). At

the time of listing, because of difficulty

in resolving the value of specific

habitats to the subspecies and assessing

the activities being conducted in those

areas, we concluded that critical habitat

was not determinable. We published a

Recovery Plan for Serpentine Soil

Species of the San Francisco Bay Area

(Recovery Plan) in September 1998 that

includes the bay checkerspot (Service

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

the Endangered Species Act of 1973, as

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

On June 30, 1999, the Center for

Biological Diversity filed a complaint

against us challenging our critical

habitat findings for seven species,

including the bay checkerspot butterfly.

On August 30, 2000, the United States

District Court for the Northern District

of California (Southwest Center for

Biological Diversity v. Bruce Babbitt, et

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

the species involved, including the bay

checkerspot butterfly. The court ordered

us to propose critical habitat within 60

days of the ruling and to finalize the

designation within 120 days of the

proposed designation. A subsequent

settlement agreement with the Center

for Biological Diversity extended the

date for the final decision to April 20,

2001.

We proposed critical habitat for the

bay checkerspot butterfly on October 16,

2000 (65 FR 61218). The original

comment period closed on December

15, 2000. A notice of availability for the

draft economic analysis and reopening

of the public comment period was

published in the Federal Register on

February 9, 2001 (66 FR 9683). The

second comment period closed on

March 12, 2001.

Critical Habitat

Critical habitat is defined in section 3

of the Act as—(i) the specific areas

within the geographic area occupied by

a species, at the time it is listed in

accordance with the Act, on which are

found those physical or biological

features (I) essential to the conservation

of the species and (II) that may require

special management consideration or

protection; and (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

determination that such areas are

essential for the conservation of the

species. ‘‘Conservation’’ means the use

of all methods and procedures that are

necessary to bring an endangered

species or a threatened species to the

point at which listing under the Act is

no longer necessary.

Critical habitat receives protection

under section 7 of the Act through the

prohibition against destruction or

adverse modification of critical habitat

with regard to actions carried out,

funded, or authorized by a Federal

agency. Section 7 also requires

consultation on Federal actions that are

likely to result in the destruction or

adverse modification of critical habitat.

In our regulations at 50 CFR 402.02, we

define destruction or adverse

modification as ‘‘* * * the direct or

indirect alteration that appreciably

diminishes the value of critical habitat

for both the survival and recovery of a

listed species.’’ Such alterations

include, but are not limited to,

alterations adversely modifying any of

those physical or biological features that

were the basis for determining the

habitat to be critical.’’ Aside from the

added protection that may be provided

under section 7, the Act does not

provide other forms of protection to

lands designated as critical habitat.

Because consultation under section 7 of

the Act does not apply to activities on

private or other non-Federal lands that

do not involve a Federal nexus, critical

habitat designation would not afford

any additional protections under the

Act against such activities.

To be included in a critical habitat

designation, the habitat must first be

‘‘essential to the conservation of the

species.’’ Critical habitat designations

identify, to the extent known using the

best scientific and commercial data

available, habitat areas that provide

essential life cycle needs of the species

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

primary constituent elements, as

defined at 50 CFR 424.12(b)).

Section 4 requires that we designate

critical habitat at the time of listing and

based on what we know at the time of

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21453

the designation. When we designate

critical habitat at the time of listing or

under short court-ordered deadlines, we

will often not have sufficient

information to identify all areas of

critical habitat. We are required,

nevertheless, to make a decision and,

thus, must base our designations on

what, at the time of designation, we

know to be critical habitat.

Within the geographic area occupied

by the species, we will designate only

areas currently known to be essential.

Essential areas should already have the

features and habitat characteristics that

are necessary to sustain the species. We

will not speculate about what areas

might be found to be essential if better

information became available, or what

areas may become essential over time. If

the information available at the time of

designation does not show that an area

provides essential life cycle needs of the

species, then the area should not be

included in the critical habitat

designation. Within the geographic area

occupied by the species, we will not

designate areas that do not now have the

primary constituent elements, as

defined at 50 CFR 424.12(b), that

provide essential life cycle needs of the

species.

Our regulations state that, ‘‘The

Secretary shall designate as critical

habitat areas outside the geographic area

presently occupied by the species only

when a designation limited to its

present range would be inadequate to

ensure the conservation of the species’’

(50 CFR 424.12(e)). Accordingly, when

the best available scientific and

commercial data do not demonstrate

that the conservation needs of the

species require designation of critical

habitat outside of occupied areas, we

will not designate critical habitat in

areas outside the geographic area

occupied by the species.

Our Policy on Information Standards

Under the Endangered Species Act,

published in the Federal Register on

July 1, 1994 (Vol. 59, p. 34271),

identifies criteria, establishes

procedures, and provides guidance to

ensure that decisions made by the

Service represent the best scientific and

commercial data available. It requires

Service biologists, to the extent

consistent with the Act and with the use

of the best scientific and commercial

data available, to use primary and

original sources of information as the

basis for recommendations to designate

critical habitat. When determining

which areas are critical habitat, a

primary source of information is the

listing package for the species.

Additional information may be obtained

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

developed by States and counties,

scientific status surveys and studies,

biological assessments, unpublished

materials, and expert opinion or

personal knowledge.

Habitat is often dynamic, and species

may move from one area to another over

time. Furthermore, because of the

information available for us at the time

of designation, we recognize that

designation of critical habitat may not

include all of the habitat areas that may

eventually be determined to be

necessary for the recovery of the

species. For these reasons, critical

habitat designations do not signal that

habitat outside the designation is

unimportant or may not be required for

recovery. Areas outside the critical

habitat designation will continue to be

subject to conservation actions that may

be implemented under section 7(a)(1),

and to the regulatory protections

afforded by the section 7(a)(2) jeopardy

standard and the take prohibitions of

section 9 of the Act, as determined on

the basis of the best available

information at the time of the action. We

specifically anticipate that federally

funded or assisted projects affecting

listed species outside their designated

critical habitat areas may still result in

jeopardy findings in some cases.

Similarly, critical habitat designations

made on the basis of the best available

information at the time of designation

will not control the direction and

substance of future recovery plans,

habitat conservation plans, or other

species conservation planning efforts if

new information available to these

planning efforts calls for a different

outcome.

Methods

In identifying areas that are essential

to conserve the bay checkerspot, we

used the best scientific information

available. This included habitat

suitability and site-specific species

information. We have emphasized areas

of current and historical bay

checkerspot occurrences, especially

larger sites in proximity to known

occurrences. To maintain genetic and

demographic interchange that will help

maintain the viability of a regional

metapopulation, we included corridor

areas that allow movement between

populations. Dispersal is a crucial

function for a species with

metapopulation dynamics like the bay

checkerspot.

We used data on known and historic

locations and maps of serpentine soils

to identify potentially important areas.

Then, through the use of 1990s digital

orthophotos available through the Bay

Area Digital GeoResource (BADGER)

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

limited ground checking, we estimated

the current extent of suitable breeding

habitat. We included in critical habitat

both suitable habitat and areas that link

suitable breeding habitat, since these

links facilitate movement of individuals

between habitat areas and are important

for dispersal and gene flow and, thus, to

the conservation of the subspecies. For

the final rule, we checked the critical

habitat boundaries we proposed for the

subspecies against 1999 SPOT satellite

imagery and removed identifiable

developed areas.

Our 1984 proposal to list the bay

checkerspot with critical habitat (49 FR

35665) proposed five critical habitat

zones. Four of the five are included in

this designation, with modifications

based on improved knowledge of the

biology and habitat of the subspecies.

Since publication of the original

proposal, the fifth zone (Woodside

Zone) has been mostly converted to

housing. Therefore, it is not included in

the critical habitat designation. Since

1984, a great deal of literature on the

bay checkerspot butterfly, both

published and unpublished, has added

to our understanding of the subspecies

(see literature cited in Service 1998;

Weiss 1999; Weiss and Launer 2000).

Based on this expanded information and

other information in the Recovery Plan

(Service 1998), we have been able to

identify habitats and populations that

were poorly documented before the

mid-1980s, and assess their significance.

Besides the four previously identified

critical habitat zones, this final rule

identifies 11 additional habitat units

essential to the conservation of the bay

checkerspot, for a total of 15 critical

habitat units. Further, information

provided in comments on the proposed

designation and draft economic analysis

were evaluated and taken into

consideration in the development of this

final designation.

Primary Constituent Elements

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

of the Act and regulations at 50 CFR

424.12(b), in determining which areas to

designate as critical habitat, we must

consider those physical and biological

features (primary constituent elements)

essential to the conservation of the

species and that may require special

management considerations and

protection. These include, but are not

limited to, space for individual and

population growth and for normal

behavior; food, water, or other

nutritional or physiological

requirements; cover or shelter; sites for

breeding, reproduction, or rearing of

21454 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

offspring; and habitats that are protected

from disturbance or are representative of

the historic geographical and ecological

distributions of a species.

The primary constituent elements of

critical habitat for the bay checkerspot

are those habitat components that are

essential for the primary biological

needs of foraging, sheltering, breeding,

maturation, and dispersal. The areas we

are designating as critical habitat

provide some or all of the known

primary constituent elements for the

subspecies, which include: stands of

Plantago erecta, Castilleja exserta, or

Castilleja densiflora; spring flowers

providing nectar; pollinators of the bay

checkerspot’s food and nectar plants;

soils derived from serpentinic rock; and

space for dispersal between habitable

areas. In addition, the following are

each primary constituent elements to be

conserved when present in combination

with one or more of the primary

constituent elements above: areas of

open grassland, topography with varied

slopes and aspects providing surface

conditions with warm and moderate to

cool temperatures during sunny spring

days, stable holes or cracks in the soil

and surface rocks or rock outcrops,

wetlands providing moisture during

times of spring drought.

Appropriate grassland vegetation

provides cover for larvae, pupae and

adults, egg-laying stimuli and sites for

females, and adequate open ground for

larvae to be able to crawl efficiently in

search of foraging, basking, diapause, or

pupation sites (Service 1998). Stands of

food plants, including nectar plants, are

important in the bay checkerspot’s life

cycle. The bay checkerspot’s primary

larval food plant is Plantago erecta, an

annual, native plantain. The larvae also

often use a secondary food plant

species, usually either Castilleja

(Orthocarpus) densiflora (purple owl’sclover) or Castilleja exserta

(Orthocarpus purpurascens) (exserted

paintbrush). These secondary food

plants tend to remain edible later in the

season than the plantain. Bay

checkerspot adults benefit from visiting

flowers for nectar. Nectar plants

commonly visited include Lomatium

spp. (desertparsley), Lasthenia

californica (= chrysostoma) (California

goldfields), Layia platyglossa (tidy-tips),

Muilla maritima (sea muilla), and

others.

Adequate native pollinators to sustain

populations of Castilleja and nectar

species, including, but not limited to,

such groups as bumblebees and solitary

bees, are important to the value of

critical habitat because these plants are

dependent on pollinators to reproduce

and perpetuate their populations in the

area. Plantago erecta is thought to be

self-pollinating.

The bay checkerspot usually is found

associated with grasslands on

serpentine soils, such as the Montara

soil series. In Santa Clara County, the

Inks and Climara soil series are related

soils and often have inclusions of

Montara (U.S. Soil Conservation Service

1974). Henneke and other serpentine

soils also occur within the range of the

bay checkerspot. Serpentine soils often

support other primary constituent

elements, but they are not limited to

serpentine soils. Soil structure with

stable holes or cracks and surface rocks

or rock outcrops provide cover and

shelter for bay checkerspot larvae

seeking diapause sites and basking sites.

Bay checkerspot adults have been

observed to fly considerable distances

during drought conditions to draw

water or solutes from moist soils around

wetlands (‘‘puddling,’’ Launer et al.

1993). Triggering of the puddling

behavior by drought conditions suggests

it is a directed, adaptive behavior, and

that the butterflies are seeking out moist

areas during times of water or heat

stress to obtain essential nutrients or

water (Launer et al. 1993).

Adult bay checkerspots are capable of

dispersing over long distances.

Movements of more than 5.6 kilometers

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

documented (see Service 1998), and

longer movements are possible. Adult

dispersal, especially by fertilized

females carrying eggs, is vital to the

maintenance of natural bay checkerspot

metapopulation structure, which

requires reestablishment or

replenishment of populations that are at

or near local extinction. Roads,

especially those traveled more heavily

and at higher speeds, present a risk of

death or injury to dispersing bay

checkerspots. Where open spaces exist

that facilitate dispersal, they support the

persistence of bay checkerspot

populations and metapopulations. Some

habitats or land uses are thought to be

more suitable for dispersal than others;

for example, grassland may be more

readily crossed than woodland or

landscaped areas. But documented longdistance movements demonstrate that

the bay checkerspot is sometimes

capable of crossing a variety of

substrates (Service 1998).

Topographic diversity provides

opportunities for early season warmth

as well as cool north-and east-facing

slopes that are a refuge for the

subspecies during droughts. Bay

checkerspot larvae develop more

rapidly when they can bask in sunlight

that penetrates short-statured grassland

vegetation. Adults also use warm

exposures for basking, and find earlyseason nectar plants on warm south-and

west-facing slopes (Weiss et al. 1988).

Criteria Used To Identify Critical

Habitat

In an effort to map areas that have the

features essential to the conservation of

the subspecies, we used data on known

bay checkerspot locations, and

conservation planning areas that were

identified in the Recovery Plan (Service

1998) as essential for the recovery of the

subspecies.

We also considered the existing status

of lands in designating areas as critical

habitat. The bay checkerspot is known

to occur on State, county, and private

lands. The range of critical habitat

extends in the south from the San

Martin area, in Santa Clara County,

north to San Bruno Mountain in San

Mateo County. We could not depend on

Federal lands for critical habitat

designation because we are not

currently aware of any Federal lands

within the range of the bay checkerspot

that can be inhabited by the butterfly.

We are also not aware of any Tribal

lands in or near the critical habitat units

for the bay checkerspot.

Section 10(a) of the Act authorizes us

to issue permits to take listed species

incidental to otherwise lawful activities.

An incidental take permit application

must be supported by a habitat

conservation plan (HCP) that identifies

conservation measures that the

permittee agrees to implement for the

species to minimize and mitigate the

impacts of the requested incidental take.

One small, short-term HCP covers the

bay checkerspot on about 4 hectares (ha)

(10 acres (ac)) of critical habitat through

November 2001. This HCP permits

temporary project-related impacts from

electric transmission line work. To date,

project construction anticipated to affect

the bay checkerspot is substantially

complete (see the Relationship to

Habitat Conservation Plans section

below for additional information on the

relationship between HCPs and critical

habitat designation).

In selecting areas of critical habitat,

we made an effort to avoid developed

areas, such as towns and other similar

lands, that are unlikely to contribute to

bay checkerspot conservation. However,

the information available to us did not

allow us to exclude all recently

developed areas, such as towns, housing

developments, or other lands unlikely to

contain the primary constituent

elements essential for conservation of

the bay checkerspot. Existing features

and structures within the boundaries of

the mapped units, such as buildings,

roads, aqueducts, railroads, airports,

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21455

other paved areas, lawns, and other

urban landscaped areas are not likely to

contain primary constituent elements

essential for the conservation of the bay

checkerspot. Federal actions limited to

those areas, therefore, would not trigger

a section 7 consultation, unless they

affect the species and/or primary

constituent elements in adjacent critical

habitat.

Critical Habitat Designation

The areas we are designating as

critical habitat currently provide some

or all of those habitat components

necessary to meet the primary biological

needs of the bay checkerspot butterfly.

Table 1 shows the approximate area of

critical habitat by county and land

ownership. Lands designated are under

private and State and local ownership.

The subspecies is not known to occur,

or to have historically occurred, on

Federal lands. Lands designated as

critical habitat have been divided into

15 Critical Habitat Units. Critical habitat

designated for the bay checkerspot

includes 9,673 ha (23,903 ac), with 806

ha (1,992 ac) in San Mateo County and

8,867 ha (21,911 ac) in Santa Clara

County. Because the bay checkerspot is

nearly confined to island-like patches of

habitat, its critical habitat is easily

categorized into separate areas or units

(see maps). We present brief

descriptions of each unit, and our

reasons for designating it as critical

habitat, below.

Conserving the bay checkerspot

includes the need to reestablish historic

populations of the subspecies to areas

within several of the units, in order to

secure the butterfly in representative

sites in its former range, and in a range

of habitat and climate conditions.

Returning the bay checkerspot to good

representatives of its former diversity of

sites and habitat and climate conditions

is necessary to reduce the long-term risk

of range-wide extinction of the

subspecies (Service 1998).

The long-term probability of the

survival and recovery of the bay

checkerspot butterfly is dependent on

the maintenance of its metapopulation

dynamics through the protection of

existing serpentine habitat, the

movement of individuals between these

sites, and the ability of the butterflies to

recolonize habitat where they have

become extirpated. Recolonization of

sites with suitable habitat that contained

populations that have become extinct

and the maintenance of genetic diversity

within existing populations is

dependent upon ‘‘stepping stones’’ of

habitat, including habitat that may

appear marginal, that the bay

checkerspot can colonize and disperse

from during rare periods of very

favorable climatic conditions.

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

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

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

County Federal Local/State Private Total

San Mateo .............................................................. 0 520 ha (1,285 ac) .......... 286 ha (707 ac) ............. 806 ha (1,992 ac).

Santa Clara ............................................................ 0 922 ha (2,278 ac) .......... 7,945 ha (19,633 ac) ..... 8,867 ha (21,911 ac).

Total ........................................................................ 0 1,442 ha (3,563 ac) ....... 8,231 ha (20,340 ac) ..... 9,673 ha (23,903 ac).

Unit 1. Edgewood Park/Triangle Unit

Occurring in San Mateo County, this

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

R.4 W. (Mount Diablo meridian/base

line). Included is most of Edgewood

Natural Preserve, a county park

southeast of the junction of Edgewood

Road, and I–280, and watershed lands of

the San Francisco Public Utilities

Commission, Water Supply and

Treatment Division, within the triangle

formed by I–280, Edgewood Road, and

Canada Road, as well as a small

additional area of serpentine soil on the

west side of Canada Road. Much of this

area also falls within the San Francisco

State Fish and Game Refuge. The area

supports the Edgewood population of

the bay checkerspot discussed in the

subspecies’ Recovery Plan, which is the

main population of the San Mateo

metapopulation of the bay checkerspot

(Service 1998). Without the Edgewood

population the San Mateo

metapopulation would almost certainly

go extinct, resulting in the loss of one

of only two metapopulations of the bay

checkerspot and a significant range

reduction for the subspecies. This

population is also the northernmost

remaining population of the subspecies.

The unit contains considerable areas of

good habitat, although additional

management attention may be needed

for the bay checkerspot to thrive here.

The unit is 7 km (4 mi) northwest of the

Jasper Ridge unit.

Unit 2. Jasper Ridge Unit

Occurring within San Mateo County,

the unit covers 287 ha (709 ac) in

Stanford University’s Jasper Ridge

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

(Mount Diablo meridian/base line).

Decades of data and dozens of

published scientific papers about the

Jasper Ridge population of the bay

checkerspot exist. The population has

severely declined in recent years, and

may now be extirpated (Service 1998).

However, we are confident that a stable

population of the subspecies can be

restored to Jasper Ridge because the area

is protected and managed as a biological

preserve by Stanford University and

suitable habitat continues to be present.

The Jasper Ridge population is essential

as a supporting element of the San

Mateo metapopulation, and a backup to

the Edgewood and prospective San

Bruno Mountain populations. The unit

is 34 km (21 mi) west-northwest of the

Communications Hill unit, the closest

connection to units in the Santa Clara

County metapopulation.

Unit 3. San Bruno Mountain Unit

This unit also occurs in San Mateo

County, with approximately 303 ha (748

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

meridian/base line), above the 152 m

(500 ft) elevation contour, and east of

the western Pacific Gas and Electric

transmission corridor on San Bruno

Mountain. This unit is mostly within

San Bruno Mountain State and County

Park, and is inside the boundaries of the

San Bruno Mountain Area Habitat

Conservation Plan area. The bay

checkerspot formerly inhabited this

area, but is believed to have been

extirpated around 1986 by a

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

habitat. However, this unit has

supported a substantial bay checkerspot

population in the past, and it is

reasonable to expect that the butterfly

can be reestablished here.

San Bruno Mountain represents the

most northerly part of the subspecies’

former range on the San Francisco

peninsula with reasonably good

conditions to support the bay

checkerspot. The San Bruno Mountain

21456 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

unit is essential as a supporting element

of the San Mateo metapopulation, and a

backup to the Edgewood and Jasper

Ridge populations. The unit lies 25 km

(16 mi) north-northwest of the

Edgewood Park/Triangle unit.

Unit 4. Bear Ranch Unit

The Bear Ranch unit, totaling 250 ha

(617 ac), lies west of Coyote Lake

(Coyote Reservoir) in the eastern hills of

the Santa Clara Valley, in southern

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

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

base line). The unit is named for a

ranching property that partly occurs in

the unit. The ranch and lands, including

and surrounding the unit, are now

owned and managed by the Santa Clara

County Parks and Recreation

Department. This location represents

one of the most recent population

discoveries of the bay checkerspot, and

has been documented for several years

as a persistent population. The

population is also one of the most

southerly occurrences of the bay

checkerspot. It lies about 10 km (6 mi)

southeast of the Kirby core population

area described in the Recovery Plan

(Service 1998), with some intervening

habitable areas and adequate dispersal

corridors. Over 40 ha (100 ac) of

mapped and an unquantified acreage of

unmapped serpentine soils in several

large to small patches occur within the

unit. In addition to the significance of

its position establishing the outer

perimeter of the range of the subspecies,

the Recovery Plan makes the protection

of large, good-quality habitat areas near

core populations, such as this, a high

priority (Service 1998).

Unit 5. San Martin Unit

This unit includes 237 ha (586 ac)

west of San Martin, in the western

foothills of the Santa Clara Valley in

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

E). Included in the designated critical

habitat are extensive areas of serpentine

soils and intervening areas that support

habitat or are used for dispersal. Regular

occupation of the unit by the bay

checkerspot has been documented,

although no quantitative surveys are

available of this population. The unit

lies entirely on private lands in

unincorporated Santa Clara County,

about 6.4 km (4 mi) west-southwest of

the Bear Ranch unit and 11 km (7 mi)

south of the Kirby core area. This is the

second population at the southern

periphery of the range. The Recovery

Plan makes the protection of large,

good-quality habitat areas near core

populations, such as this, a high priority

(Service 1998). We are not aware of any

public lands in the unit.

Unit 6. Communications Hill Unit

Communications Hill, and adjacent

hilltops in south-central San Jose, are

formed by outcroppings of serpentine

rock, with grasslands capable of

supporting the bay checkerspot. This

unit occurs in Santa Clara County and

covers 179 ha (443 ac) of mostly

undeveloped land. It also crosses a

major road and railroad tracks, and

includes a quarry that we believe, after

appropriate reclamation, could be

restored to bay checkerspot habitat. The

bay checkerspot has been documented

on Communications Hill in the past. A

survey of a limited portion of the hill

conducted in the spring of 2000, but

which missed the early weeks of the

butterflies’ flight season, did not detect

the subspecies (Arnold 2000). Whether

the unit is currently occupied is not

known. We believe this unit functions

as habitat of the species, functions in its

regional metapopulations dynamics,

and functions as a ‘‘stepping stone’’ for

bay checkerspot dispersal. The Recovery

Plan (Service 1998) calls for

conservation of larger habitat areas

currently or historically occupied by the

bay checkerspot. Conservation of habitat

at Communications Hill is identified in

the Recovery Plan as a priority 2 action,

i.e., a recovery action that must be taken

to prevent decline or other negative

impact short of extinction (Table IV–1,

task 2.1.19 in the Recovery Plan). This

location also represents the

northwestern-most remnant of the Santa

Clara County metapopulation. The unit

is surrounded by Curtner Avenue,

Almaden Expressway, Hillsdale

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

E., Mount Diablo meridian/base line),

and lies 3 km (2 mi) west of the Silver

Creek unit.

Much of this unit lies on private lands

within unincorporated lands, with a

smaller area in the City of San Jose.

Portions of a Santa Clara County

communications facility, a San Jose

water company facility, and recently

developed lands may fall within the

unit. Only currently undeveloped areas

supporting the primary constituent

elements of habitat for the bay

checkerspot would be subject to

regulatory oversight of any Federal

actions.

Unit 7. Kalana Hills Unit

The Kalana Hills unit in Santa Clara

County comprises 99 ha (244 ac) on the

southwest side of the Santa Clara Valley

between Laguna Avenue and San Bruno

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

meridian/base line). Four serpentine

outcrops form hills or hillsides in this

area. At least one population of the bay

checkerspot has been documented on

one or all of these outcrops in recent

surveys. This unit also includes some

intervening areas that connect the closer

outcrops. The Coyote Ridge unit lies

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

Santa Teresa unit about 2 km (1.2 mi)

to the northwest, the San Vicente-Calero

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

the Morgan Hill unit about 3.2 km (2 mi)

to the southeast. Because of its

proximity to several other, large

population centers for the bay

checkerspot, we expect the Kalana Hills

unit to be regularly occupied by the

subspecies. If, as is possible given the

bay checkerspot’s large population

swings, the butterfly’s population in the

unit were to die out, it is likely to be

quickly reestablished by bay

checkerspots immigrating from adjacent

sites. We are not aware of any public

lands in the unit. A portion of the

largest and northernmost serpentine

outcrop is within the limits of the City

of San Jose; the remainder of the unit is

on private lands in unincorporated

Santa Clara County.

Unit 8. Kirby Unit

The Kirby critical habitat unit

includes 2,797 ha (6,912 ac) along the

southern portion of ‘‘Coyote Ridge’’ in

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

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

Diablo meridian/base line). It contains

the Kirby area for the bay checkerspot

discussed in the subspecies’ Recovery

Plan (Service 1998). The ridge,

informally known as Coyote Ridge, runs

northwest to southeast, parallel to and

east of Highway 101 from Yerba Buena

Road to Anderson Reservoir in Santa

Clara County, and forms the eastern

slope of the Santa Clara Valley (U.S.

Geological Survey (USGS) 7.5 minute

quadrangles San Jose East, Lick

Observatory, Santa Teresa Hills, and

Morgan Hill. The ridge is not named on

these maps). Coyote Ridge also parallels

the Silver Creek Fault and Silver Creek

itself. Extensive serpentine soil areas,

and four population areas for the bay

checkerspot (Kirby, Metcalf, San Felipe,

and Silver Creek Hills) lie on, or

adjacent to, this ridge and fault system

(Service 1998). Metcalf Canyon, Silver

Creek, and nonserpentine soil areas

create natural divisions among these

four population areas. The Kirby unit is

the southernmost of four critical habitat

units corresponding to the four

population areas along Coyote Ridge,

and runs along this ridge east of

Highway 101 and Coyote Creek from

Metcalf Canyon south to Anderson

Lake. The northern boundary of the

Kirby unit abuts the Metcalf unit. The

northwest tip of the Kirby unit also

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21457

connects to the Tulare Hill Corridor

unit.

The Kirby critical habitat unit

regularly supports one of the largest

populations of the bay checkerspot, and

is considered one of the centers of the

subspecies’ Santa Clara County

metapopulation. The Recovery Plan

(Service 1998) considers protection of

the area of the highest priority for

conservation of the subspecies. The unit

contains several hundred acres of

diverse serpentine grassland habitat as

well as nectaring areas, seasonal

wetlands, and dispersal areas. The unit

includes lands within the limits of the

City of San Jose, private lands in

unincorporated Santa Clara County, and

small areas in the City of Morgan Hill.

Public lands in this unit include the

Santa Clara County Field Sports Park

and portions of Santa Clara County

Motorcycle Park, Anderson Lake County

Park, Coyote Creek Park, and lands of

the Santa Clara Valley Water District. A

101 ha (250 ac) reserve, leased by Waste

Management Inc. on behalf of the Kirby

Conservation Trust to further

conservation of the bay checkerspot,

also falls within the unit. The Kirby

Conservation Trust has funded

extensive research on the bay

checkerspot for more than a decade at

the lease site, greatly improving our

understanding of the ecology,

population dynamics, and conservation

needs of the subspecies (see literature

cited in Service 1998). We removed

approximately 57 ha (141 ac), all

nonserpentine lands, from the unit as it

was proposed on October 16, 2000.

Unit 9. Morgan Hill Unit

The Morgan Hill unit in Santa Clara

County includes 293 ha (724 ac)

northwest of the City of Morgan Hill in

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

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

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

southwest of the Coyote Ridge unit and

about 3.2 km (2 mi) southeast of the

Kalana Hills unit. This is the area

described as ‘‘north of Llagas Avenue’’

in our 1998 Recovery Plan. The unit is

partly within the limits of the City of

Morgan Hill and partly on private lands

in unincorporated Santa Clara County.

Murphy Springs Park, a small city park,

is within the unit. The Morgan Hill unit

has large areas of serpentine soils and

grassland with a variety of slope

exposures, suitable for the bay

checkerspot. The unit has been

documented to be occupied by the bay

checkerspot in the past, as well as in

more recent surveys in the past 2 to 3

years. Because of its large habitat area

and proximity to core populations of the

bay checkerspot, the Recovery Plan

considers protection of this area

essential to the conservation of the

subspecies (Service 1998). We removed

approximately 81 ha (201 ac), mostly

residential development, from the unit

as it was proposed.

Unit 10. Metcalf Unit

This unit includes 1,356 ha (3,351 ac)

in Santa Clara County, east of Highway

101, south of Silver Creek Valley Road,

north of Metcalf Canyon, and west of

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

Diablo meridian/base line). The unit

contains the Metcalf area for the bay

checkerspot, one of the four largest

habitat areas and three largest current

population centers for the bay

checkerspot (Service 1998). As of the

spring of 2000, this area supported the

bay checkerspot’s densest population

(Weiss in litt. 2000). Hundreds of acres

of serpentine soils, and thousands of

bay checkerspot butterflies, occur

within the unit. This area is considered

one of the centers of the subspecies’

Santa Clara County metapopulation.

The Recovery Plan (Service 1998)

considers protection of the area of the

highest priority for conservation of the

bay checkerspot. This unit adjoins the

Kirby unit to the south, San Felipe unit

to the east, Silver Creek Hills unit to the

north, and Tulare Hill Corridor unit to

the west, and provides crucial habitat

connectivity for bay checkerspot

dispersal among these areas. The

Metcalf unit lies in the City of San Jose

and on private lands in unincorporated

Santa Clara County. Portions of Santa

Clara County Motorcycle Park, Coyote

Creek Park, and lands of Santa Clara

Valley Water District fall within the

unit. We removed approximately 260 ha

(643 ac), mostly commercial and

residential development, from the unit

as it was proposed.

Unit 11. San Felipe Unit

This unit includes 404 ha (998 ac) in

Santa Clara County, southwest of San

Felipe Road and north of Metcalf Road

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

base line), primarily on private lands in

unincorporated county lands, but also

within San Jose city limits. The unit

contains the San Felipe population area

for the bay checkerspot, one of the four

largest habitat areas and three largest

current population centers for the bay

checkerspot (Service 1998). This area is

considered one of the centers of the

subspecies’ Santa Clara County

metapopulation. The Recovery Plan

(Service 1998) considers protection of

the area of the highest priority for

conservation of the bay checkerspot.

Several hundred acres of serpentine

soils occur within the unit with

nectaring and dispersal areas. We are

not aware of any public lands in the

unit.

Unit 12. Silver Creek Unit

The Silver Creek unit comprises 318

ha (787 ac), primarily within the limits

of the City of San Jose, but with some

area on private lands in unincorporated

Santa Clara County (T.7 S., R.1 E., T.7

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

meridian/base line). This unit is

surrounded by Highway 101 and Coyote

Creek on the west, Yerba Buena Road on

the north, Silver Creek on the east and

northeast, and Silver Creek Valley Road

on the south. The unit includes the

Silver Creek Hills population area for

the bay checkerspot (Service 1998). It

includes nearly 405 ha (1,000 ac) of

contiguous serpentine soils, other

scattered serpentine outcrops, and also

habitat less suitable for breeding but

needed for nectar-feeding or dispersal.

Approximately 382 ha (943 ac) of

developed areas and graded lands

permitted for development have been

removed from the unit as it was

proposed. Included in our final

designation for this unit is a roughly 162

ha (400 ac) nature preserve owned by

William Lyon Homes (former Presley

Homes) and managed by the non-profit

Silver Creek Preserve. Several electric

transmission lines and two major

natural gas lines cross the unit.

In the last several years, a small

population of the bay checkerspot has

been documented in the Silver Creek

unit, and the area has a long history of

much larger populations. Portions of the

unit known to have been inhabited by

the bay checkerspot in the past are

currently in degraded condition. With

the management being implemented by

Lyon Homes and Silver Creek Preserve,

we believe that the Silver Creek Hills

population is likely to increase, and that

much of the degraded area will be

restored to useful breeding habitat. The

Silver Creek unit has extensive, diverse,

and high-quality habitat, and represents

the northernmost unit of the Santa Clara

County metapopulation. The Silver

Creek unit provides a population

reservoir critical to the survival of the

Santa Clara County metapopulation of

bay checkerspot—the larger and more

viable of the two remaining

metapopulations (Service 1998).

Unit 13. San Vicente-Calero Unit

The San Vicente-Calero unit contains

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

of Calero County Park, Santa Clara

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

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

Diablo meridian/base line). This area

supports a known population of the bay

21458 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

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

unit that are suitable for the bay

checkerspot have not been surveyed.

The unit is also within bay checkerspot

dispersal distance of the Santa Teresa

Hills unit (see below), which we

consider to be capable of supporting a

very large population of the bay

checkerspot, and the Kalana Hills unit

(number 9, above), which are

themselves accessible to and from other

units. Therefore, we believe the San

Vicente-Calero population can

contribute significantly to maintaining

the Santa Clara County metapopulation

of the bay checkerspot. For all these

reasons, the Recovery Plan (Service

1998) considers protection of this area

essential to the conservation of the

subspecies. The unit is south of McKean

Road and east of the town of New

Almaden, Almaden Road, and Alamitos

Creek. It lies about 1.6 km (1 mi) south

of the Santa Teresa unit and about 3.2

km (2 mi) west of the Kalana Hills unit.

Portions of the unit outside the county

park are within the limits of the City of

San Jose.

Unit 14. Santa Teresa Hills Unit

The Santa Teresa Hills unit includes

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

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

Mount Diablo meridian/base line) with

extensive areas of serpentine soils.

Portions of the Santa Teresa Hills are

known to support the bay checkerspot

now, and have supported the subspecies

in the past, but no current

comprehensive survey of the bay

checkerspot in the area is available. We

believe that the Santa Teresa Hills could

support a significant population of bay

checkerspots. In addition to adding a

fifth substantial population to the Santa

Clara County metapopulation,

conservation and management of the

Santa Teresa Hills population would

support development of a strong

population of the bay checkerspot in a

slightly cooler, moister area of the

county, at a site that may experience

less air pollution than the more eastern

units. The Santa Teresa Hills critical

habitat unit is intended to include most

undeveloped habitat in the area, as well

as intervening areas that are unsurveyed

or less suitable but needed for dispersal

among higher-quality areas. The unit

lies north of Bailey Avenue, McKean

Road, and Almaden Road, south of

developed areas of the city of Santa

Clara, and west of Santa Teresa

Boulevard. The unit abuts the Tulare

Hill Corridor unit.

Unit 15. Tulare Hill Corridor Unit

The Tulare Hill Corridor unit, 355 ha

(876 ac) in Santa Clara County, connects

the Coyote Ridge (Kirby and Metcalf,

and through them, San Felipe and Silver

Creek) and Santa Teresa units. Tulare

Hill is a prominent serpentine hill that

rises from the middle of the Santa Clara

Valley in southern San Jose, west of the

crossing of Metcalf Road and Highway

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

meridian/base line). Extensive habitat

on the hill is currently occupied by the

bay checkerspot, and is essential both as

a population center and for dispersal

across the valley. The Metcalf and Kirby

populations of the bay checkerspot lie

less than 1 km (0.6 mi) to the northeast,

separated by a major highway (U.S. 101)

and a narrow band of other unfavorable

uses (another large road, railroad tracks,

an electrical substation, a large open

reservoir with artificially hardened

banks, and agricultural area). The Santa

Teresa Hills population area for the

subspecies lies about 2 km (1.2 mi) to

the southwest, with dispersal habitat in

between. We believe the long-term

viability of the bay checkerspot depends

on the presence of a corridor for

dispersal of adults to and from the Santa

Teresa Hills and Coyote Ridge (Service

1998). Tulare Hill is an ideal location

for such a corridor because of the

narrowness of the valley at this location

and the limited amount of development

currently present, the presence of high

elevations on the hill that may attract

butterflies over busy roads and

developed areas, and the presence of

suitable habitat on Tulare Hill itself.

Migrant butterflies from either Santa

Teresa Hills or Coyote Ridge may settle

on Tulare Hill, contributing individuals

and genetic diversity to the population

there, and adults from Tulare Hill may

migrate to the adjacent habitat areas.

Public lands within the designated

unit include parts of Coyote Creek Park,

Metcalf Park, and Santa Teresa County

Park. Roughly half of Tulare Hill itself

is within the limits of the City of San

Jose, the remainder on private lands in

unincorporated Santa Clara County.

Several major electrical transmission

lines cross the unit. Some areas within

the unit are not inhabited by bay

checkerspot individuals but can

function as dispersal corridors.

Effect 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 do not destroy or

adversely modify critical habitat to the

extent that the action appreciably

diminishes the value of the critical

habitat for the survival and recovery of

the species. Individuals, organizations,

States, local governments, and other

non-Federal entities are affected by the

designation of critical habitat only if

their actions occur on Federal lands,

require a Federal permit, license, or

other authorization, or involve Federal

funding.

Section 7(a) of the Act requires

Federal agencies, including the Service,

to evaluate their actions with respect to

any species that is proposed or listed as

endangered or threatened, and with

respect to its critical habitat, if any is

proposed or designated. Regulations

implementing this interagency

cooperation provision of the Act are

codified at 50 CFR part 402. Section

7(a)(4) and regulations at 50 CFR 402.10

requires Federal agencies to confer with

us on any action that is likely to

jeopardize the continued existence of a

proposed species or result in

destruction or adverse modification of

proposed critical habitat. Conference

reports provide conservation

recommendations to assist the agency in

eliminating conflicts that may be caused

by the proposed action. The

conservation recommendations in a

conference report are advisory. If a

species is listed or critical habitat is

designated, section 7(a)(2) requires

Federal agencies to ensure that activities

they authorize, fund, or carry out are not

likely to jeopardize the continued

existence of such a species or to destroy

or adversely modify critical habitat. If a

Federal action may affect a listed

species or its critical habitat, the

responsible Federal agency (action

agency) must enter into consultation

with us. Through this consultation, we

would ensure that the permitted actions

do not destroy or adversely modify

critical habitat.

When we issue a biological opinion

concluding that a project is likely to

result in the destruction or adverse

modification of critical habitat, we also

seek to provide reasonable and prudent

alternatives to the project, if any are

identifiable. ‘‘Reasonable and prudent

alternatives’’ are defined at 50 CFR

402.02 as alternative actions identified

during consultation that can be

implemented in a manner consistent

with the intended purpose of the action,

that are consistent with the scope of the

Federal agency’s legal authority and

jurisdiction, that are economically and

technologically feasible, and that the

Director believes would avoid

destruction or adverse modification of

critical habitat. Reasonable and prudent

alternatives can vary from slight project

modifications to extensive redesign or

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21459

relocation of the project. Costs

associated with implementing a

reasonable and prudent alternative are

similarly variable.

Regulations at 50 CFR 402.16 require

Federal agencies to reinitiate

consultation on previously reviewed

actions in instances where critical

habitat is subsequently designated, and

the Federal agency has retained

discretionary involvement or control

over the action or such discretionary

involvement or control is authorized by

law. Consequently, some Federal

agencies may request reinitiation of

consultation or conference with us on

actions for which formal consultation

has been completed, if those actions

may affect designated critical habitat, or

adversely modify or destroy proposed

critical habitat. Conference reports assist

the agency in eliminating conflicts that

may be caused by the proposed action,

and may include recommendations on

actions to eliminate conflicts with or

adverse modifications to proposed

critical habitat. The conservation

recommendations in a conference report

are advisory.

We may issue a formal conference

report if requested by a Federal agency.

Formal conference reports on proposed

critical habitat contain an opinion that

is prepared according to 50 CFR 402.14,

as if critical habitat were designated. We

may adopt the formal conference report

as the biological opinion when the

critical habitat is designated, if no

substantial new information or changes

in the action alter the content of the

opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may

affect the bay checkerspot or its critical

habitat will require section 7

consultation. Activities on private or

State lands requiring a permit from a

Federal agency, such as a permit from

the U.S. Army Corps of Engineers

(Corps) under section 404 of the Clean

Water Act, a section 10(a)(1)(B) permit

from the Service, or some other Federal

action, including funding (e.g., Federal

Highway Administration (FHA), Federal

Aviation Administration, or Federal

Emergency Management Agency

(FEMA)), will also continue to be

subject to the section 7 consultation

process. Federal actions not affecting

listed species or critical habitat and

actions on non-Federal lands that are

not federally funded, authorized, or

permitted do not require section 7

consultation.

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

to briefly evaluate and describe in any

proposed or final regulation that

designates critical habitat those

activities involving a Federal action that

may destroy or adversely modify such

habitat, or that may be affected by such

designation. Activities that may destroy

or adversely modify critical habitat

include those that appreciably reduce

the value of critical habitat for both the

survival and recovery of the bay

checkerspot. Within critical habitat, this

pertains only to those areas containing

the primary constituent elements. We

note that such activities may also

jeopardize the continued existence of

the species.

To properly portray the effects of

critical habitat designation, we must

first compare the section 7 requirements

for actions that may affect critical

habitat with the requirements for

actions that may affect a listed species.

Section 7 prohibits actions funded,

authorized, or carried out by Federal

agencies from jeopardizing the

continued existence of a listed species

or destroying or adversely modifying the

listed species’ critical habitat. Actions

likely to ‘‘jeopardize the continued

existence’’ of a species are those that

would appreciably reduce the

likelihood of the species’ survival and

recovery. Actions likely to ‘‘destroy or

adversely modify’’ critical habitat are

those that would appreciably reduce the

value of critical habitat for the survival

and recovery of the listed species.

Common to both definitions is an

appreciable detrimental effect on both

survival and recovery of a listed species.

Given the similarity of these definitions,

actions likely to destroy or adversely

modify critical habitat would almost

always result in jeopardy to the species

concerned, particularly when the area of

the proposed action is occupied by the

species concerned. Designation of

critical habitat in areas occupied by the

bay checkerspot is not likely to result in

a regulatory burden above that already

in place due to the presence of the listed

subspecies.

Activities that, when carried out,

funded, or authorized by a Federal

agency, may affect critical habitat and

require that a section 7 consultation be

conducted include, but are not limited

to:

(1) Ground disturbance, including but

not limited to, grading, discing, ripping

and tilling;

(2) Removing, destroying, or altering

vegetation (e.g., altering grazing

practices or seeding);

(3) Water contracts, transfers,

diversion, impoundment, application,

or conveyance, groundwater pumping,

irrigation, or other activity that wets or

inundates habitat, creates barriers or

deterrents to dispersal, or results in

critical habitat being converted to lower

values for the bay checkerspot (e.g.,

conversion to urban development,

vineyards, landscaping, etc.);

(4) Sale, exchange, or lease of critical

habitat that is likely to result in the

habitat being destroyed or degraded;

(5) Recreational activities that

significantly deter the use of critical

habitat by bay checkerspots or alter

habitat through associated maintenance

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

golf courses, trail construction or

maintenance);

(6) Construction activities that destroy

or degrade critical habitat (e.g., urban

and suburban development, building of

recreational facilities such as off-road

vehicle parks and golf courses, road

building, drilling, mining, quarrying

and associated reclamation activities);

and

(7) Application or drift onto critical

habitat of pesticides, herbicides,

fertilizers, or other chemicals or

biological agents.

(8) Deposition or release onto critical

habitat of pollutants, other chemicals or

biological agents.

Any of the above activities that

appreciably diminish the value of

critical habitat, once established, to the

degree that they affect the survival and

recovery of the bay checkerspot may be

considered an adverse modification of

critical habitat. We note that such

activities may also jeopardize the

continued existence of the subspecies.

If you have questions regarding

whether specific activities will

constitute destruction or adverse

modification of critical habitat resulting

from a Federal action, contact the Field

Supervisor, Sacramento Fish and

Wildlife Office (see ADDRESSES section).

Requests for copies of the regulations on

listed wildlife, and inquiries about

prohibitions and permits may be

addressed to the U.S. Fish and Wildlife

Service, Branch of Endangered Species,

911 N.E. 11th Ave, Portland, Oregon

97232 (telephone 503/231–2063;

facsimile 503/231–6243).

Relationship to Habitat Conservation

Plans (HCPs)

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

broad discretion to exclude from critical

habitat designation areas where the

benefits of exclusion outweigh the

benefits of designation, provided the

exclusion will not result in the

extinction of the species. We believe

that, in most instances, the benefits of

excluding HCPs from critical habitat

designations will outweigh the benefits

of including them.

The benefits of including HCP lands

in critical habitat are normally small.

Federally authorized, funded, or

permitted activities in designated

21460 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

critical habitat that may affect critical

habitat require consultation under

section 7 of the Act. This is the major

benefit of designating lands as critical

habitat. Consultation would ensure that

adequate protection is provided to avoid

adverse modification of critical habitat.

However, our experience indicates that

where HCPs are in place, this benefit is

small or non-existent. Currently

approved and permitted HCPs are

designed to ensure the long-term

survival of covered species within the

plan area. The lands that we would find

essential for the conservation of the

species, and thus be considered for

designation of critical habitat would,

where we have approved HCPs and the

species is a covered species under the

HCP, normally be protected in reserves

and other conservation lands. HCPs, and

their associated implementation

agreements, outline management

measures and protections for

conservation lands that are crafted to

protect, restore, and enhance their value

as habitat for covered species.

In addition, an HCP application must

itself be consulted upon by the Service.

While this consultation will not look

specifically at the issue of adverse

modification of critical habitat, it will

look at the very similar concept of

jeopardy to the listed species in the plan

area. HCPs, particularly large regional

HCPs, address land use within the plan

boundaries; habitat issues within the

plan boundaries are thoroughly

addressed in the HCP and the

consultation on the HCP. Our

experience is that, under most

circumstances, consultations under the

jeopardy standard will reach the same

result as consultations under the

adverse modification standard.

Additional measures to protect the

habitat from adverse modification are

not likely to be required.

Further, HCPs typically provide for

greater conservation benefits to a

covered species than section 7

consultations because HCPs assure the

long-term protection and management

of a covered species and its habitat, and

funding for such management through

the standards found in the 5-Point

Policy for HCPs (64 FR 35242) and the

HCP No Surprises regulation (63 FR

8859). Such assurances are typically not

provided by section 7 consultations

which, in contrast to HCPs, often do not

commit the project proponent to longterm special management or protections.

Thus, the lands covered by a

consultation typically will not provide

the extensive benefits of an HCP.

The development and implementation

of HCPs provide other important

conservation benefits, including the

development of biological information

to guide conservation efforts and assist

in species recovery and the creation of

innovative solutions to conserve species

while allowing for development. The

educational benefits of critical habitat,

including informing the public of areas

that are important for the conservation

of the species, are essentially the same

as those that would occur from the

public notice and comment procedures

required to establish an HCP, as well as

the public participation that occurs in

the development of many regional

HCPs. For these reasons, then, we

believe that designation of critical

habitat has little benefit in areas covered

by HCPs.

In contrast, the benefits of excluding

HCPs from being designated as critical

habitat are more significant. In response

to other critical habitat proposals, we

have received comments about the

additional regulatory and economic

burden of designating critical habitat.

These include the need for additional

consultation with us and the need for

additional surveys and information

gathering to complete these

consultations. HCP applicants have also

stated that they are concerned that third

parties may challenge HCPs on the basis

that they result in adverse modification

or destruction of critical habitat.

The benefits of excluding HCPs from

critical habitat include relieving

landowners, communities, and counties

of any additional minor regulatory

review that might be imposed by critical

habitat. This benefit is important given

our past representations that once an

HCP is negotiated and approved by us

after public comment, activities

consistent with the plan will satisfy the

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

the Act. Many HCPs, particularly large

regional HCPs, take many years to

develop and, upon completion, become

regional conservation plans that are

consistent with the recovery of covered

species. Many of these regional plans

benefit many species, both listed and

unlisted. Imposing an additional

regulatory review after HCP completion

not only results in minor, if any,

additional benefit to the species, it may

jeopardize conservation efforts and

partnerships in many areas and could be

viewed as a disincentive to those

developing HCPs. Excluding HCPs

provides us with an opportunity to

streamline regulatory compliance and

confirms regulatory assurances for HCP

participants.

Another benefit of excluding HCPs is

that it would encourage the continued

development of partnerships with HCP

participants, including States, local

governments, conservation

organizations, and private landowners,

that together can implement

conservation actions we would be

unable to accomplish alone. By

excluding areas covered by HCPs from

critical habitat designation, we preserve

these partnerships, and, we believe, set

the stage for more effective conservation

actions in the future.

In general, then, we believe the

benefits of critical habitat designation to

be small in areas covered by approved

HCPs. We also believe that the benefits

of excluding HCPs from designation are

small, but significant. We believe that

the small benefits of inclusion, when

weighed against the benefits of

exclusion, including the benefits of

relieving property owners of an

additional layer of approvals and

regulation, together with the

encouragement of conservation

partnerships, would generally result in

HCPs being excluded from critical

habitat designation under section 4(b)(2)

of the Act.

Given this general analysis, we expect

to analyze the specific benefits in each

particular critical habitat designation

because not all HCPs are alike with

regard to species coverage and design.

Within this designation, we need to

evaluate completed and legally

operative HCPs in the range of the bay

checkerspot to determine whether the

benefits of excluding these particular

areas outweigh the benefits of including

them.

The San Bruno Mountain Area HCP

overlaps with the critical habitat

designation on San Bruno Mountain.

The bay checkerspot is believed to have

been extirpated from the mountain since

about 1986. The San Bruno Mountain

Area HCP does not discuss the bay

checkerspot in detail, and the Incidental

Take Permit for this HCP currently does

not include the subspecies. Therefore,

we have not excluded the area covered

by this HCP from the critical habitat

designation. Any future Service or other

Federal agency involvement in activities

on San Bruno Mountain, such as habitat

restoration, may require section 7

consultation if there are likely to be

effects on bay checkerspot critical

habitat.

The Pacific Gas and Electric (PG & E)

Metcalf-Edenvale/Metcalf-Monte Vista

HCP covers only about 4 ha (10 ac) in

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

habitat units. Because the HCP expires

in November 2001, and the permitted

project is substantially complete within

critical habitat areas, we are not

excluding lands covered under this

short-term HCP from our critical habitat

proposal. We believe that no formal

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21461

consultation on any remaining work

covered by the HCP will be necessary.

In the event that future HCPs covering

the bay checkerspot are developed

within the boundaries of designated

critical habitat, we will work with

applicants to ensure that the HCPs

provide for protection and management

of habitat areas essential for the

conservation of the bay checkerspot by

either directing development and

habitat modification to nonessential

areas, or appropriately modifying

activities within essential habitat areas

so that such activities will not adversely

modify the primary constituent

elements. The HCP development

process provides an opportunity for

more intensive data collection and

analysis regarding the use of particular

habitat areas by the bay checkerspot.

The process also enables us to conduct

detailed evaluations of the importance

of such lands to the long-term survival

of the subspecies in the context of

constructing a biologically configured

system of interlinked habitat blocks.

We will provide technical assistance

and work closely with applicants

throughout the development of future

HCPs to identify lands essential for the

long-term conservation of the bay

checkerspot and appropriate

management for those lands.

Preliminary HCPs are being discussed

for listed and non-listed species within

the range of the bay checkerspot in areas

designated herein as critical habitat.

These HCPs, coupled with appropriate

adaptive management, should provide

for the conservation of the subspecies. If

these HCPs, or others, that address the

bay checkerspot are ultimately

approved, we will reassess the critical

habitat boundaries in light of the HCPs.

We will seek to undertake this review

when an HCP is approved, but funding

constraints may influence the timing of

such a review.

Summary of Comments and

Recommendations

In the October 16, 2000, proposed rule

(65 FR 61218), we requested all

interested parties to submit comments

on the specifics of the proposal

including information, policy, treatment

of HCPs, and proposed critical habitat

boundaries as provided in the proposed

rule. The first comment period closed

on December 15, 2000. The comment

period was reopened from February 9,

2001, to March 12, 2001, (66 FR 9683)

to allow for additional comments on

both the proposed rule and the draft

economic analysis. Although not stated

in the Federal Register notice of

February 9, 2001, we accepted all

comments received from October 16,

2000, to March 12, 2001, and entered

them into the administrative record for

the rule.

We contacted all appropriate State

and Federal agencies, Tribes, county

governments, elected officials, and other

interested parties and invited them to

comment. In addition, we invited public

comment through the publication of

notices and display ads to announce the

public hearing in the following

newspapers in California: the San Mateo

County Times and the Palo Alto

Weekly. These announcements were

published on October 20 and October

25, 2000, respectively. In these notices

and the proposed rule, we announced

the date and time of one public hearing

that was held on the proposed rule. This

hearing was in Newark, California, on

October 30, 2000. A transcript of this

hearing is available for inspection (see

ADDRESSES section).

When the comment period was reopened, we sent out notices of the reopening to all parties on a mailing list

for the bay checkerspot. Additionally,

we held one informational meeting on

February 22, 2001, in San Jose,

California.

We requested four professional

ecologists, who have familiarity with

bay checkerspot butterflies and/or

butterfly metapopulation dynamics, to

peer review the proposed critical habitat

designation. Three of the peer reviewers

submitted comments on the proposed

critical habitat designation, and one did

not respond.

One peer reviewer stated that the

proposed rule was ‘‘* * * formulated

utilizing technically accurate and up-todate information * * *’’ about the bay

checkerspot, and that ‘‘* * * the

criteria or primary constituent elements

***’’ used to identify and propose

critical habitat ‘‘* * * are appropriate

to identify the large-scale boundaries of

critical habitat units.’’ He found that the

maps and descriptions of the 15

proposed critical habitat units we

prepared ‘‘* * * accurately delimit the

approximate boundaries of potential

habitat at every location.’’

He recommended we review the

status of Euphydryas editha populations

of uncertain subspecific status in San

Benito and San Luis Obispo counties.

We note that we will continue to review

and consider scientific data and peer

consensus on the subspecific status of

uncertain Euphydryas editha

populations as it becomes available. We

believe that the best information

available at this time supports

proceeding with this rule substantially

as proposed. The Act provides

procedures under section 4 for

modifying species listings and critical

habitat designations as may be

appropriate in light of any new

information that may be developed.

The reviewer agreed with our

assessment of the value of the Tulare

Hill unit as a dispersal corridor for the

bay checkerspot butterfly to connect

populations that lie east and west of that

unit. He contrasted Tulare Hill with

more isolated sites such as San Bruno

Mountain and Communications Hill,

where the distance to existing bay

checkerspot butterfly populations may

be more than a butterfly normally

disperses, and intervening areas are

urbanized. We agree that the San Bruno

Mountain site may require introduction

in order to establish and perhaps to

maintain a bay checkerspot population;

however, we believe Communications

Hill is within normal flight range of

other Santa Clara Valley metapopulation

units.

A second peer reviewer generally

supported the rule, stating that ‘‘***

it does an excellent job of reviewing and

interpreting bay checkerspot population

biology, habitat requirements, and

distribution.’’ In particular, she noted

that the ridge including the Kirby and

Metcalf units [which we call Coyote

Ridge] is very important to the

persistence of the Santa Clara County

metapopulation, supporting multiple

demographic units. In her research

Coyote Ridge appeared to be a stable

‘‘source’’ that plays a major role in

sustaining the species in the region. The

reviewer suggested that the Edgewood

unit serves the same ‘‘source role’’ in

the San Mateo County metapopulation,

and stated that it is important to protect

Edgewood as the last remainder of

whatever unique genetic variants of the

bay checkerspot may exist in that

region.

The second reviewer mentioned

Silver Creek, Santa Teresa Hills, and

Morgan Hill as having especially good

potential for strong populations of the

bay checkerspot butterfly, but that the

Santa Teresa Hills, such as the ungrazed

Santa Teresa County Park, may need

more grazing to achieve its full potential

as a large block of habitat. She stated

that during her field studies, the only

critical habitat unit she did not think

had much potential as bay checkerspot

habitat was Communications Hill,

recalling it as being disturbed and

grassy with few native forb-dominated

meadows. We note that we have

received a recent host plant survey of a

portion of Communications Hill that

documents substantial areas of larval

food plants and adult nectar plants

(Arnold 2000).

The third reviewer also generally

supported the rule, finding it ‘‘carefully

21462 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

constructed, comprehensive, and well

justified. * * * Importantly, the critical

habitat areas contain important

dispersal corridors between serpentine

patches, and account for the dynamic

nature of bay checkerspot

metapopulations, with local extinctions

and recolonizations.’’

This reviewer made extensive

comments about nitrogen deposition,

stating that the preponderance of

scientific evidence and opinion is that

the serpentine grasslands in question

are highly sensitive to nitrogen

additions, that nitrogen deposition can

lead to degradation of habitat, and that

excess nitrogen deposition from smog

may be the single biggest immediate

threat to the bay checkerspot.

The reviewer also stated that wellmanaged grazing is vital to the recovery

of the bay checkerspot, specifically

mentioning public lands in the Santa

Teresa Hills unit as being in need of

grazing to reverse deteriorating habitat

quality. He estimated that one formerly

degraded site in the Silver Creek unit

recovered and greatly increased host

plant and nectar plant density in about

five years of grazing. We concur that

recovery of habitat quality with grazing

is feasible and documented.

The reviewer stated that

Communications Hill in its current state

is unlikely to support bay checkerspot

populations, but also stated that the

proposed unit boundaries ‘‘contain the

remaining habitat.’’ He considers the

Communications Hill habitat relatively

warm and dry, with few north-facing

slopes, degraded by lack of grazing, and

generally of low priority relative to

higher quality habitats elsewhere. The

Service believes that Communications

Hill is likely to be occupied by the bay

checkerspot, and we discuss why in

detail in our responses to public

comment regarding Communications

Hill, below. The reviewer suggested one

additional unit in the vicinity of Canada

Garcia and Manzanita Ridge (west of

Chesbro Reservoir, Santa Clara County),

with more than 100 ha (247 ac) of

serpentine and a good mix of slopes and

aspects. However, we lack adequate

information about this area to justify

including it in the critical habitat

designation at this time. The Act

provides opportunity for later revision

of critical habitat designation through

petition procedures under section

4(b)(3)(D). Further unit-specific

comments by the third reviewer are

covered below.

We received a total of 1,037 oral and

written comments during the comment

periods. In total, oral and written

comments were received from 1 State

office, 5 local governments, and 1,031

private individuals or organizations. We

reviewed all comments received for

substantive issues and new information

regarding critical habitat and the bay

checkerspot. Of the comments we

received, 1,006 supported designation,

24 were opposed to it, and 7 provided

information or declined to oppose or

support the designation. Similar

comments were grouped into four

general issues relating specifically to the

proposed critical habitat determination

and draft economic analysis on the

proposed determination. These are

addressed in the following summary.

Issue 1: Biological Justification,

Methodology, and Regulatory

Comments

(1) Comment: One commenter stated

that the Service should concentrate its

critical habitat efforts for the bay

checkerspot on those sites where the

bay checkerspot exists and which,

therefore, truly provide potential

conservation benefits to the subspecies.

Our Response: We did concentrate on

occupied sites, and have only included

unoccupied sites where they are

essential to the conservation of the

subspecies. The unoccupied sites are

essential, as described in the bay

checkerspot’s Recovery Plan (Service

1998), because of the metapopulation

dynamics exhibited by the bay

checkerspot, and because they are

representative of the historic

geographical and ecological distribution

of the subspecies.

(2) Comment: A commenter was

concerned that the activities described

in the proposed rule that may affect

critical habitat under section 7

consultation were broadly defined and,

combined with other species listings

and critical habitat designations, have

the net effect of establishing the Service

as the sole arbiter of land use decisions.

It was suggested that the Service narrow

the defined activities that may affect

critical habitat. The commenter also

stated that water contracting and

operations carried out by Federal

agencies are not a direct or indirect

cause of loss of habitat or cause for

endangerment of the subspecies and,

therefore. should not require section 7

consultation. It was also stated that sale

or lease of private property does not

result in habitat loss and should be

deleted from the rule.

Our Response: We provide the list of

activities that may affect critical habitat

to assist Federal agencies when they

review their actions and determine

whether critical habitat may be affected.

The list is wide-ranging because diverse

Federal agencies have broad

responsibilities under the Act to protect

and conserve listed species and critical

habitat. The list in no way conveys land

use jurisdiction to the Service. The

trigger for section 7 consultation is

whether a Federal action may affect a

listed species or critical habitat. Federal

water contracts and operations that meet

this criterion are required to consult.

Sales or leasing of property will only be

subject to consultation on critical

habitat when a Federal agency is

funding, authorizing, or carrying out the

action, and the sale or lease may affect

critical habitat.

(3) Comment: One commenter said

that if the Service is going to use

fragmentation as a reason for

designating critical habitat (Background

section), it should develop a

quantitative assessment of how much

fragmentation has taken place. Are the

urban developments replacing

woodlands, chaparral, or other habitats

between areas of serpentine grassland a

detriment or a benefit to the bay

checkerspot? These developments may

be a detriment, because of reduced

resting area, increased obstacles, and

pesticide; however, they could be a

benefit by reducing predatory birds. The

commenter also asked the Service to

consider and insert why butterflies may

be avoiding wooded or scrub habitats, as

this may be a predator avoidance

behavior.

Our Response: A quantitative analysis

of habitat fragmentation is not required

to designate critical habitat, and is

beyond the scope of this rulemaking. It

is not known why bay checkerspot

butterflies appear to avoid wooded or

scrub habitats. We are not aware of any

scientific reports of bay checkerspots

exhibiting predator avoidance behavior.

(4) Comment: One commenter said

the indirect effects of added nitrogen

deposition from increased automobile

traffic on plant community structure

need to be addressed. Concerns about

the effects of nitrogen deposition on the

bay checkerspot were also expressed by

a peer reviewer.

Our Response: Nitrogen oxides from

increased automobile traffic contribute

to excess nitrogen deposition on

surrounding habitats. Nitrogen

deposition and its effects are briefly

addressed in the Background section.

We agree that scientific studies, such as

those summarized in our Recovery Plan

(Service 1998), show that automobiles

and many other air pollution sources

produce excess nitrogen oxides. A

recent study found that nitrogen

deposition from air pollution on Coyote

Ridge, which includes the Kirby,

Metcalf, and Silver Creek units, is

already likely to be at levels adversely

affecting serpentine plant community

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21463

structure, with negative effects on the

bay checkerspot (Weiss 1999). We have

modified the list of activities that may

affect critical habitat in the section 7

Consultation section to address excess

nitrogen deposition more clearly, by

listing deposition as well as application

of fertilizers, pollutants, and other

chemicals. In ongoing consultation and

discussions with the Corps of Engineers,

the Federal Highway Administration,

the City of San Jose, and the County of

Santa Clara, we are currently seeking to

address the risk that excess nitrogen

deposition poses to the bay checkerspot

butterfly.

(5) Comment: One commenter said

that a higher proportion of the outcrops

on the peninsula than in Santa Clara

County might reasonably be proposed

for critical habitat.

Our Response: We are aware of, and

considered, several serpentine outcrop

areas on the San Francisco peninsula

when developing the proposed rule.

However, the remaining undeveloped

area of each of these sites is small, the

topographic diversity is generally poor,

and most are degraded and exposed to

significant threats, such as lying directly

adjacent to an eight-lane freeway. All

are considered to have been unoccupied

by the bay checkerspot for one or more

decades.

(6) Comment: One commenter asked

what percentage of total bay checkerspot

habitat is included in the critical habitat

designation and how much area outside

this designated area is likely to contain

bay checkerspot.

Our Response: We do not currently

have comprehensive figures on the total

area or location of bay checkerspot

habitat or the status of all bay

checkerspot populations. In our

estimation, this critical habitat

designation includes the majority of

remaining bay checkerspot habitat in

Santa Clara and San Mateo counties,

and an even higher proportion of

currently existing bay checkerspot

populations. However, bay checkerspot

populations and suitable habitat do

exist outside of designated critical

habitat. For example, bay checkerspot

butterflies exist in a locality on

serpentine soils near Uvas Reservoir in

Santa Clara County, and at several other

serpentine outcrops west of the foothills

of the Santa Clara Valley. We did not

include these areas in critical habitat

because available data do not indicate

they are essential to the conservation of

the subspecies, or because we lack

sufficient information on the localities

to make a determination.

(7) Comment: One commenter said

that if assessor’s parcel numbers were

identified or assessor’s maps were used

to identify parcel ownership, then

information on land use on those

parcels would also be available. The

designation of critical habitat appears to

have skipped an important part of the

analysis and this information should be

included and reviewed.

Our Response: We did not use

assessor’s parcel maps in developing

our designation. Instead, subsequent to

the bay checkerspot critical habitat

proposal on October 16, 2000 (65 FR

61218), the County of Santa Clara sent

us a list of property owners potentially

interested in the designation. We

contacted these landowners by mail and

provided them the opportunity to

comment about the proposed rule and

draft economic analysis. Several

landowners commented on these two

documents and provided information

that helped us refine our final critical

habitat designation.

(8) Comment: Several commenters felt

that the critical habitat designation

should encourage viable grazing

activities.

Our Response: We agree that

sustainable grazing practices are

generally compatible with bay

checkerspot habitat and conservation,

and that in some areas or at certain

times the removal of grazing may

actually be a threat. The rule states this

in the Background and the Effects of

Critical Habitat Designation sections.

(9) Comment: A commenter asked

what types of development would

typically be allowed in critical habitat

areas, what would be the threshold that

would trigger a Federal permit, what

Federal agencies would be involved in

issuance of these permits, to which

agencies would the county refer

development applications, and what

typical mitigation measures would be

required in a development proposal to

ensure adequate habitat protection.

Our Response: There is no such thing

as a Federal permit for development in

critical habitat units. Critical habitat

identifies specific areas that have the

physical and biological features that are

essential to the conservation of a listed

species, and that may require special

management considerations or

protection. Federal agencies are

required to consult with us only if an

action they are authorizing, funding, or

carrying out, in whole or in part, may

affect critical habitat. We do not believe

any new county procedures for critical

habitat would be required beyond what

the county should already have in place

to protect the threatened bay

checkerspot butterfly. Refer to the

section above that discusses section 7 or

the Regulatory Planning and Review

and Regulatory Flexibility Act sections

under Required Determinations below

for more information as to what

potential Federal agencies may initiate a

section 7 consultation and the types of

activities that may be involved.

(10) Comment: One commenter asked

why we had proposed so many

contiguous units. He recommended a

single unit should be proposed for the

Coyote Ridge area.

Our Response: These units have

distinct bay checkerspot populations

and are connected by dispersal habitat.

Separate units allow us to evaluate the

effects resulting from any Federal

actions on unit populations

individually, rather than lumping them

all together.

(11) Comment: One commenter

requested that information on the

distances the Edgewood Park/Triangle,

Jasper Ridge, and San Bruno Mountain

units are from other units be provided.

Our Response: We added distance

information to the narrative discussion

of these units. Please see that section.

(12) Comment: One commenter stated

that the Service should provide

quantitative or qualitative measures for

the primary constituent elements. The

commenter proposed additions to and

omissions from the primary constituent

elements, adding: minimum size areas

such as at least 1.6 ha (4 ac), northfacing serpentine slopes with dense

stands of Plantago erecta, a diversity of

north and nearby south- and west-facing

slopes, at least 152 m (500 ft) in

elevation, and serpentine soil; and

omitting pollinators, stable holes, or

cracks in soil, and wetlands.

Our Response: The ‘‘may affect’’

criterion that triggers Federal agencies

to consult under section 7 of the Act is

a broad, qualitative standard. We

believe that precise quantitative

standards for habitat are unnecessary

and would overstate the scientific

understanding of the bay checkerspot,

its environments, and its needs. For

example, Plantago erecta densities vary

greatly from year to year, and what bay

checkerspot larvae need for a ‘‘dense’’

stand of Plantago erecta has not been

documented. We have reviewed and

made alterations in the wording of the

primary constituent elements

designation, and we believe the final

language suitably captures the needs of

the subspecies in a manner that will be

useful to Federal agencies in

determining whether actions they fund,

authorize, or carry out may affect

critical habitat.

(13) Comment: One commenter felt

some of the primary constituent

elements were either difficult to

measure, or are considered generally

21464 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

unimportant for the subspecies, such as

wetlands.

Our Response: We provide

justification for the primary constituent

elements stated above (see Background

section). We also provided citations

stating the importance of wetlands to

the bay checkerspot. For example, the

article cited regarding occasional

wetland use by bay checkerspot (Launer

et al. 1993) is co-authored by six wellknown ecologists and biologists, and

states ‘‘our observations are consistent

with the hypothesis that (bay

checkerspot) butterflies are visiting

moist areas in order to replenish

essential nutrients or water expended

during mating, gamete (egg or sperm)

production, or general metabolism.’’

They go on to say that local population

persistence may be enhanced by moist

areas, and that canyon bottoms and

moist areas may need to be considered

in conservation planning for the bay

checkerspot.

(14) Comment: One commenter

objected that the size of patches of host

plants and the average density of

Plantago erecta are not provided for any

of the units, even though data exist for

many. The minimum patch size of

Plantago erecta necessary to support a

population of bay checkerspot should

also be provided.

Our Response: While we would be

interested in reviewing the data on

Plantago erecta referred to in the

comment, Plantago erecta is an annual

plant whose year-to-year abundance is

strongly affected by abiotic and biotic

environmental conditions. As such,

information on its present abundance is

not necessarily a good indicator of

conditions next year or over the long

run. Regarding the minimum amount of

Plantago erecta needed to support a

population of bay checkerspot, we are

not aware of any studies in the literature

of what this amount might be. Also, the

mobility and metapopulation dynamics

of the bay checkerspot would need to be

considered in evaluating the relevance

of the size of any particular patch of

food plants.

(15) Comment: One commenter asked

whether the Service will require all of

the proposed primary constituent

elements to be present, or only one or

two to qualify a site as critical habitat.

Our Response: We clarified the

language regarding the primary

constituent elements in the final rule

(see the Primary Constituent Elements

section of this rule). All areas within the

legal descriptions are considered critical

habitat except for existing manmade

features and structures, such as

buildings, roads, railroads, and urban

development. All critical habitat areas

contain one or more of the primary

constituent elements.

(16) Comment: A commenter stated

that many farmers and ranchers are

concerned that their current agricultural

practices could be impacted. They fear

cropping patterns, water conservation,

and other practices may be limited with

the critical habitat designation because

these practices may now impact the bay

checkerspot.

Our Response: With the changes made

from the proposed rule, very little, if

any, crop land remains within the

critical habitat boundaries. Normal

ranching practice will be unaffected by

bay checkerspot critical habitat

designation.

(17) Comment: A commenter

representing certain landowners in the

area of the proposed Kalana Hills unit

said substantial areas were included

within the borders of the proposed

critical habitat area that clearly lack any

of the primary constituent elements for

the bay checkerspot. For instance, the

Service included area that is nonserpentine and presently in cultivation

in Kalana Hills unit.

Our Response: There is no

requirement that all of the area within

critical habitat boundaries support the

primary constituent elements; to the

contrary, critical habitat regulations

explicitly state that intervening or

surrounding areas not capable of

supporting the subspecies may be

included within designated critical

habitat for purposes of describing a

readily identifiable boundary and

providing adequate consideration to a

spatially complex mix of area with and

without habitat (50 CFR 424.12(c), (d)).

Furthermore, space for dispersal

between habitable areas is a primary

constituent element of bay checkerspot

critical habitat. Nevertheless, within

these requirements under the Act and

with more detailed information

provided during the comment period,

we have modified the Kalana Hills unit

boundary, eliminating over 80 ha (200

ac) of agricultural lands lacking the

primary constituent elements from the

unit.

(18) Comment: Many commenters

mentioned possible benefits of

designating critical habitat. Items

suggested include facilitating proper

evaluation of development proposals

and plans, helping with acquiring more

lands to be protected, increasing the

chances of funding of scientific projects,

and furthering the development of an

HCP for Santa Clara County.

Our Response: While none of these

items are required by critical habitat, we

acknowledge that critical habitat

designation can serve as an important

public information function. NonFederal parties may also elect to use

critical habitat maps to inform their

decision-making, direct funding, or

guide large-scale planning and

conservation efforts. Critical habitat

designation does not set aside lands or

funds to acquire lands.

(19) Comment: One commenter stated

that it is important that the Service use

the Act to exercise control over Federal

projects and analyze the direct and

indirect impacts on the bay checkerspot,

especially for those projects that only

indirectly impact the bay checkerspot

and its habitat.

Our Response: We, and other Federal

agencies, are required under the Act to

consider all effects, direct and indirect,

to listed species and critical habitat of

actions subject to Federal authorization,

funding, or control, including the

indirect effects of those actions.

(20) Comment: One commenter

believed that it is important for the

Service and the U.S. Department of

Agriculture’s Natural Resource

Conservation Service (NRCS) to

coordinate on use of plants for

landscaping of projects.

Our Response: If the NRCS is placing,

funding, or recommending the

placement of plants in or near bay

checkerspot critical habitat, it must

consider whether its actions may affect

the subspecies or critical habitat. We are

prepared to consult informally or

formally with NRCS on their plant

recommendations.

(21) Comment: One commenter stated

that critical habitat designation will

facilitate proper evaluation of

development proposals and plans. One

commenter stated the Service

inaccurately downplayed the difficulty

of the normal regulatory process and

that the critical habitat designation

requires additional regulatory review

and analysis under State and local laws.

The commenter stated that this should

be acknowledged in the rule.

Our Response: Critical habitat

designation does not provide for a

wholesale environmental evaluation of

proposed development projects. If a

Federal agency funds, authorizes, or

carries out an action that may affect

critical habitat for the bay checkerspot,

the Act requires that the agency consult

with us under section 7 of the Act. For

a project to affect critical habitat, it must

affect the habitat features important to

the bay checkerspot, which are defined

in the regulation section in this final

rule. Projects lacking a Federal nexus do

not require any additional regulatory

review and analysis under Federal laws,

and we are not aware of any additional

regulatory review and analysis under

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21465

State or local laws for designated critical

habitat.

(22) Comment: A commenter stated

that the section on Relationship to

Habitat Conservation Plans does not

explain a benefit to the Santa Clara

Valley Water District or to the

subspecies if the District develops an

HCP. He recommended we rewrite the

section to establish good linkage to the

benefits to the subspecies and the use of

HCPs.

Our Response: HCPs reduce conflicts

between listed species and the

economic use or development activities

of a particular piece of land. By

developing an HCP, an individual,

agency, or organization can reduce the

burden of the Act by providing an

efficient mechanism for compliance

with it, while at the same time,

providing for the conservation of one or

more species. One of the great strengths

of the HCP process is its flexibility, as

they can vary greatly in size and scope.

Each HCP is unique, with its own set of

issues and objectives.

As mentioned in the Relationship to

Habitat Conservation Plans section,

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

broad discretion to exclude from critical

habitat designation areas where the

benefits of exclusion outweigh the

benefits of designation, provided the

exclusion will not result in the

extinction of the species. We believe

that in most instances, the benefits of

excluding HCPs from critical habitat

designations will outweigh the benefits

of including them. For a species, an

approved HCP would provide certain

measures to benefit the species and its

habitat. For the landowner, it would

ensure that no additional land use

restriction or financial compensation

would be required for the term of the

permit.

Our rationale for excluding HCPs is

provided in the Relationship to Habitat

Conservation Plans. For additional

information regarding the specifics of

developing an HCP, please contact our

Sacramento Fish and Wildlife Office

(see ADDRESSES) section.

Issue 2: Legal and Procedural Comments

(23) Comment: The Service failed to

consult with citizens affected by the

designation during preparation of the

proposed rule and gave deference to

environmental groups.

Our Response: Following the

publication of the proposed critical

habitat determination on October 16,

2000, we opened a 60-day comment

period, which closed on December 15,

2000. We held one public hearing on

October 30, 2000, and one public

information meeting on February 22,

2001. We conducted outreach by

notifying affected elected officials, local

jurisdictions, interested groups, and

property owners. We conducted much

of this outreach through legal notices in

regional newspapers, telephone calls,

letters, and news releases faxed and/or

mailed to affected officials, local

jurisdictions, and interest groups, and

publication of the proposed

determination and associated material

on our Regional Internet page. We

announced the availability of the draft

economic analysis in the Federal

Register on February 9, 2001, and

opened a public comment period from

February 9, 2001, to March 12, 2001, to

allow for comments on the draft

economic analysis and additional

comments on the proposed

determination itself. We provided

notification of the draft economic

analysis through telephone calls, letters,

and news releases faxed and/or mailed

to affected officials, local jurisdictions,

and interest groups. Due to the court

ordered deadline, we were not able to

reopen the comment period a third time.

We prepared the proposed and final

rules based upon the best scientific and

commercial information available to us

from all sources at the time. We

reviewed and treated, with equal

weight, all of the oral and written

comments received from various parties,

regardless of their affiliation. Also, see

our response to comment 7.

(24) Comment: Several commenters

requested that the proposal be

withdrawn and reissued. One

commenter stated the withdrawn

proposal should be redrafted after

completion of the economic analysis.

Another commenter stated that

withdrawal and reissuance of the

proposal was needed to be in

compliance with the Act and the

Administrative Procedure Act (APA).

Our Response: We have complied

with the APA and Act during this

rulemaking. We prepared and published

a proposed rule and a draft economic

analysis and solicited comments from

private parties and public agencies on

both documents. We reviewed all

comments received either in writing or

at public hearings and have responded

to these comments in the preparation of

this final rule. Where site-specific

documentation was submitted to us

providing a rationale as to why an area

should not be designated critical

habitat, we evaluated that information

in accordance with the definition of

critical habitat pursuant to section 3 of

the Act and made a determination as to

whether modifications to the proposal

were appropriate. While not actually

deleting any of the proposed critical

habitat areas originally proposed, we

changed the boundaries of certain

critical habitat areas and excluded lands

from the final designation that we

determined to be nonessential to the

conservation of the bay checkerspot. We

also complied with the District Court’s

order, which required us to make a final

decision on critical habitat for the bay

checkerspot by April 20, 2001.

(25) Comment: One commenter stated

that the public hearing location chosen

by the Service in Newark, California,

limited public input compared to

having a public hearing closer to

property owners affected by the critical

habitat designation. Another commenter

requested the Service hold a public

hearing in San Jose to address local

comments and questions.

Our Response: We recognize that the

location selected for a public hearing

may be more problematic for some

individuals who may want to attend

than another location. In this case, we

attempted to select a central location for

the public hearing that was roughly

equally accessible to all parties

potentially interested in the proposed

critical habitat designation, including

parties from San Francisco and the East

Bay, south to San Martin and southern

Santa Clara County; so we held the

public hearing in Alameda County. In

addition to the public hearing, we held

a public information meeting in San

Jose, Santa Clara County, and the

comment period was re-opened from

February 9 to March 12, 2001. Due to

the time constraint under the court

order, we could schedule only one

public hearing in Newark, California, on

October 30, 2000.

(26) Comment: Several commenters

requested the Service to reopen the

comment period for a sufficient time

period to allow meaningful comment on

the proposed designation or the

economic analysis.

Our Response: While we may have

preferred to extend or reopen the

comment period, if requested, we have

complied with the regulations under 50

CFR 424.16(c) (2) and (3) where it states

that we shall have the comment period

open for at least 60 days and we shall

hold one public hearing. Given the

constraints imposed by the Court, we

made an effort to exceed our statutory

obligations. Following the publication

of the proposed critical habitat

determination on October 16, 2000, we

opened a 60-day comment period which

closed on December 15, 2000. We

conducted outreach by notifying

affected elected officials, local

jurisdictions, interested groups, and

property owners. We conducted much

of this outreach through legal notices in

21466 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

regional newspapers, telephone calls,

letters, and news releases faxed and/or

mailed to affected officials, local

jurisdictions, and interest groups, and

publication of the proposed

determination and associated material

on our Regional Internet page. We

announced the availability of the draft

economic analysis in the Federal

Register on February 9, 2001, and reopened the public comment period from

February 9, 2001, to March 12, 2001, to

allow for comments on the draft

economic analysis as well as additional

comments on the proposed

determination itself. During this time,

we also held one informational meeting.

We provided notification of the draft

economics analysis through telephone

calls, letters, and new releases faxed

and/or mailed to affected elected

officials, local jurisdictions, property

owners, and interest groups. Since this

rule is under a court ordered deadline,

we were not able to reopen the comment

period a third time. We believe that we

provided the interested parties

sufficient time to comment on this rule

and we conducted sufficient outreach

on this notice.

(27) Comment: Several commenters

stated that the Service violated the

National Environmental Policy Act of

1969 (NEPA) by failing to prepare an

Environmental Impact Statement for the

designation of critical habitat for the bay

checkerspot butterfly.

Our Response: We have determined

that an Environmental Assessment and/

or an Environmental Impact Statement

as defined by NEPA need not be

prepared in connection with regulations

adopted pursuant to section 4(a) of the

Act as amended. We published a notice

outlining our reason for this

determination in the Federal Register

on October 25, 1983 (48 FR 49244).

(28) Comment: Three commenters

said that in order to comply with the

statutory definition of critical habitat,

the Service should specifically exclude

those portions of the proposed

designation that are not essential to the

conservation of the subspecies in the

final rule.

Our Response: We have determined

that the areas designated as critical

habitat within this final rule are

essential to the conservation of the bay

checkerspot. With improved

information since the proposed rule,

however, we did exclude lands that are

not essential to the conservation of the

bay checkerspot in this final rule from

five units.

(29) Comment: A commenter stated

that only the four areas originally

proposed as critical habitat in 1984

(Edgewood, Jasper Ridge, San Bruno

Mountain, and Kirby) should be

considered, because critical habitat

designations should be based only on

bay checkerspot occupancy, information

about the subspecies and habitats, and

economic considerations existing ‘‘at

the time of listing.’’

Our Response: We did not designate

critical habitat at the time of listing

because we found that it was not

determinable at that time. The courts

have now ruled we must finalize a

critical habitat determination for the

subspecies. Restricting our

consideration of critical habitat to what

was known about the subspecies in

1984 (the first proposed rule) or 1987

(the time of listing) would return us to

the situation in which we found critical

habitat undeterminable, and would

ignore the intervening 16 years of

accumulation of extensive scientific

data about the bay checkerspot. We are

required by the Act (sections 4(b)(2) and

4(b)(6)(C)(ii)) to base our determination

on the best scientific data available at

the present moment of critical habitat

designation.

(30) Comment: One commenter stated

that the rule does not provide sufficient

information on which a critical habitat

determination can be premised. The

proposed designation is not properly

supported by the best scientific and

commercial data available. The Service

makes numerous and varied

unsupported assertions regarding the

biology and habitat requirements of the

bay checkerspot. In proposing several

‘‘primary constituent elements’’ of

critical habitat for the bay checkerspot,

the Service offers no evidentiary

support for the elements chosen (except

in isolated instances). The Service failed

to specify what lands are ‘‘occupied’’

based on best scientific data available.

Our Response: The descriptions of the

primary constituent elements for the bay

checkerspot are based on a compilation

of data from peer reviewed published

literature, unpublished or non-peer

reviewed survey or research reports, the

Recovery Plan (Service 1998), and

biologists knowledgeable about the

subspecies and its habitat. The primary

constituent elements, as described,

represent our best estimate of those

habitat features that are essential to the

subspecies. In our response to specific

comments, and in other pertinent areas,

we have listed citations where it is

necessary or appropriate. Also, a copy of

all supporting documentation used in

the development of this determination

is in the administrative record and

available for inspection at the

Sacramento Fish and Wildlife Office

(see ADDRESSES section).

(31) Comment: One commenter stated

the critical habitat designation for the

bay checkerspot is based on the wrong

standard (i.e., a ‘‘recovery’’ standard) by

including suitable and potential habitat

that the Service deems is useful for the

subspecies’ recovery. The commenter

stated that this ‘‘recovery’’ standard is

much broader than the standard that

Congress contemplated in enacting the

Act and subsequent amendments.

Our Response: We have used the

correct standard for critical habitat as

defined in section 3(5)(A) of the Act—

(i) the specific areas within the

geographic area occupied by a species,

at the time of listing in accordance with

the Act, on which are found those

physical or biological features (I)

essential to the conservation of the

species and (II) that may require special

management considerations or

protection and; (ii) specific areas

outside the geographic area occupied by

a species at the time it is listed, upon

a determination that such areas are

essential for the conservation of the

species. The term ‘‘conservation’’ as

defined in section 3(3) of the Act, means

‘‘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 the Act

are no longer necessary’’ (i.e., the

species is recovered and removed from

the list of endangered and threatened

species). The Recovery Plan for the bay

checkerspot provides a description of

habitat attributes that are essential to the

survival and recovery of the subspecies

(Service 1998).

(32) Comment: One commenter stated

the Act requires the Service to designate

adequate habitat for conservation of the

subspecies. The Act defines

conservation as recovery. Since the

Recovery Plan (Service 1998) for the bay

checkerspot identifies the need for

populations in Contra Costa and

Alameda Counties, the Service should

add critical habitat in those counties.

Our Response: We considered

proposing critical habitat in Contra

Costa and Alameda Counties. However,

while the Recovery Plan (Service 1998)

identifies the need to reestablish

populations of the bay checkerspot

butterfly in the east bay to fully recover

the species, it does not identify specific

areas where such populations should be

reestablished. We lacked sufficient

information to indicate which particular

areas in the east bay are essential for the

conservation of the species. We believe

it is not appropriate to designate critical

habitat in areas without such

information. The Act provides for

revisions to critical habitat designations

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21467

when necessary, and we intend to

continue working with the California

Department of Parks and Recreation and

other stakeholders on opportunities to

possibly reintroduce the bay

checkerspot butterfly in appropriate

locations in the east bay. Should these

efforts identify additional areas that may

meet the definition of critical habitat

(i.e., areas that are both essential to the

conservation of the species and that

require special management), we will

consider proposing a revision to this

critical habitat designation at that time

or when our resources allow.

(33) Comment: One commenter stated

that the Service failed to make findings

required by law before including

unoccupied areas as designated critical

habitat for the bay checkerspot. The

commenter said that the Service appears

to have designated the entire

geographical area that can be occupied

by the bay checkerspot without making

the findings required by law for making

an exception to the statutory prohibition

against making such a broad

designation. Another commenter urged

the Service to respect the Act’s

distinction between critical habitat and

the geographic habitat of the bay

checkerspot.

Our Response: In proposing critical

habitat for the bay checkerspot, we

identified those areas that are essential

to the conservation of the subspecies.

The areas we proposed to designate as

critical habitat provide all of those

habitat components essential for the

primary biological needs of the bay

checkerspot described in the Recovery

Plan (Service 1998), and defined by the

primary constituent elements.

The definition of critical habitat in

section 3(5)(A) of the Act includes,

‘‘specific areas outside the geographic

area occupied by a species at the time

it is listed, upon a determination that

such areas are essential for the

conservation of the species.’’ After

weighing the best available information,

including the Recovery Plan (Service

1998), we conclude that the areas

designated by this final rule that lie

outside the geographic area occupied by

the subspecies at the time it was listed

are essential for the recovery of the

subspecies and its subsequent removal

from the List of Endangered and

Threatened Species. As is stated in this

final rule, we have not designated all

areas currently occupied, potentially

occupied, or historically occupied by

the bay checkerspot as critical habitat.

(34) Comment: One commenter stated

that the Service did not identify and

discuss the cumulative impacts of

critical habitat designation.

Our Response: The commenter

appears to be using the term

‘‘cumulative impacts’’ in the context of

NEPA. This is not appropriate in

determining the critical habitat needs of

the listed species. We are required to

consider the effect of the proposed

government action, which in this case is

the designation of critical habitat for the

bay checkerspot. The appropriate

baseline to use in an analysis of a

Federal action, which in this case is the

designation of critical habitat for the bay

checkerspot, is the way the world would

look absent the proposed regulation.

Against this baseline, we attempt to

identify and measure the incremental

costs and benefits associated with the

government action. Because the bay

checkerspot is already a federally

protected species, any effect this listing

has on the regulated community is

considered part of the baseline scenario,

which remains unaffected by our critical

habitat designation.

(35) Comment: One commenter

requested that the critical habitat

proposal be withdrawn and reissued

with more precisely delineated critical

habitat area boundaries, including

deletion of improperly proposed units,

after completion of the economic

analysis. The boundaries include

developed areas, which are not bay

checkerspot butterfly habitat. Two other

commenters asserted that the proposed

critical habitat boundaries were not

described in sufficient detail for

landowners to locate them precisely.

One stated that the proposed

designation failed to designate ‘‘specific

areas’’ as critical habitats required by

the Act. One commenter stated that the

Service failed to precisely describe the

lands to be designated as critical habitat

and thus violated the notice and

comment provisions of the

Administrative Procedure Act.

Our Response: All critical habitat

boundaries were specific and precisely

delineated in the proposed rule and

were publicly available as text

descriptions and printed maps. In

addition, we provided the boundaries in

geographic information systems (GIS)

format to anyone who requested them.

All units were properly proposed and

were presented in detail allowing

anyone with a standard topographic

map to locate the boundary (50 CFR

424.12(c)). It should be noted that the

precise boundaries are given in the legal

descriptions at the end of the rule, not

in the narrative comments in the

preamble. The draft economic analysis

was made available after some of the

comments were received; all earlier

commenters were provided a copy of

the draft economic analysis and notified

of the opportunity to comment again.

We believe the information that we

made available and provided to the

public was sufficiently detailed for

informed public comment.

(36) Comment: Several commenters

stated the Service avoided a statutory

obligation to determine whether the

benefits of excluding particular areas

from critical habitat designation

outweigh the benefits of including each

area.

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

Act allows us to exclude from critical

habitat designation areas where the

benefits of exclusion outweigh the

benefits of designation, provided the

exclusion will not result in the

extinction of the species. We base our

decision to exclude an area from critical

habitat designation on the best scientific

data available, and taking into

consideration the economic impact of

specifying any particular area as critical

habitat. We completed an economic

analysis, and considered the results of

this analysis and comments received on

the analysis and the critical habitat

proposal in the section 4(b)(2) weighing

process. We used the section 4(b)(2)

process in evaluating whether the areas

covered by the San Bruno Mountain and

PG & E HCPs should be excluded from

this critical habitat designation. The San

Bruno Mountain HCP area was included

because the HCP does not cover bay

checkerspot butterfly, and the PG & E

HCP area was included because the HCP

is due to expire in November 2001.

These HCPs are discussed further in the

Relationship to Habitat Conservation

Plans section.

Issue 3: Site-Specific Comments

(37) Comment: Several commenters

felt that the bay checkerspot butterfly

does not inhabit Communications Hill

and, therefore, this unit should not be

designated as critical habitat. They said

that surveys at the site between the mid1980s and 2000 have failed to locate any

of the subspecies. Some commenters

noted that, although a single bay

checkerspot was observed in 1992, by a

bay checkerspot butterfly specialist,

they believed it was either misidentified

or a transient individual. Seven

commenters believed that there is no

suitable habitat for the bay checkerspot

on Communications Hill and it should,

therefore, not be designated as critical

habitat. Five commenters believed that

the quarry on Communications Hill was

not historic bay checkerspot butterfly

habitat nor could it be restored to

suitable habitat.

Our Response: We do not concur with

the belief that the bay checkerspot

butterfly does not inhabit

21468 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

Communications Hill. In the past, the

bay checkerspot has been observed at

the site, as well as both of its foodplants

and adult nectar plants. While a number

of surveys of widely varying duration

and quality were conducted between the

mid-1980s to 2000, it does not appear

possible to definitively conclude the

subspecies is not present at

Communications Hill. This is because

adequate surveys have not been

conducted over the entire flight season

in all suitable areas on Communications

Hill for an adequate time period, and

thus likely would have missed the

subspecies if they emerged early, late, or

had a short adult flight season. The

Draft Supplemental Environmental

Impact Report for the Communications

Hill Kaufman Broad Residential Project,

dated November 2000, stated that ‘‘A

check with biologists monitoring the

bay checkerspot butterfly during its

2000 flight season revealed that the

earliest adults were observed on March

10th at other locations, with adults

being most active at most locations

sometime during the week of March

13th. No butterflies were seen after the

week of April 17th.’’ Given the tardiness

in initiating the field work in 2000, the

most recent survey on Communications

Hill may have missed adult bay

checkerspot butterflies at the site.

Populations of the bay checkerspot

butterfly undergo dramatic fluctuations

that may be unexpected by

entomologists and other biologists. For

example, based on the results of a

survey conducted in 1987, an

entomologist concluded that a proposed

residential development at Silver Creek

would not adversely affect the bay

checkerspot butterfly, given its ‘‘low’’

population size (Dennis Murphy in litt.;

D. Murphy, pers. comm.). However, in

the time period from 1987 to 1990, the

bay checkerspot dramatically increased

the size and extent of their population

at this location, and more

comprehensive studies at the site

determined that the serpentine habitat

at that location was very important for

the subspecies.

The eggs, larvae, and pupae of the bay

checkerspot butterfly are difficult to

locate in the field (R. White 1986 (87)).

In addition, the ability of larvae of a

related taxa, the endangered quino

checkerspot butterfly (Euphydryas

editha quino), to become dormant

during adverse environmental

conditions (aestivate) is well

documented and they likely are able to

survive long periods of time in this state

(Mattoni et al. 1997). In judging whether

a population of the quino checkerspot

butterfly has been extirpated, it is

important to know that even a robust

population may generate no adults at all

under poor environmental conditions

(Service 2001). It is likely the bay

checkerspot butterfly, a subspecies of

the same species, possesses this same

life-history trait (Service 1998).

There are numerous studies

documenting that the bay checkerspot

butterfly possesses a ‘‘metapopulation

type’’ of distribution and population

structure. A metapopulation is a

network of semi-isolated populations

with some level of regular or

intermittent migration and gene flow

among them, in which populations may

disappear, but then are recolonized by

dispersing individuals from other

populations. Other populations of this

subspecies are known from the

immediate vicinity at Santa Teresa

County Park, Tulare Hill, Silver Creek,

Kirby Canyon, and the Morgan Hill area.

The bay checkerspot butterfly also was

intentionally released at 38 sites that

contain serpentine grassland in Santa

Clara County (Harrison 1989). It is not

known if any of these releases resulted

in the establishment of permanent

populations, however, individuals were

observed at four of the 38 sites two years

after the releases occurred (Harrison

1989).

Communications Hill contains all of

the primary constituent elements of

critical habitat for the bay checkerspot

butterfly: open grassland, larval

foodplants, adult nectar sources, soils

derived from serpentinic rock, stable

holes or cracks in the soil, wetlands that

may provide moisture during times of

spring drought, space for dispersal, and

relatively varied topography (Arnold

2000). Communications Hill is only 3.2

km (2 mi) from the Silver Creek unit and

5 km (3 mi) from the Santa Teresa Hills

unit, both recently documented to be

occupied by the bay checkerspot. Both

are within documented dispersal

distances of the subspecies. The bay

checkerspot seen on Communications

Hill in 1992 was identified by an

experienced biologist with extensive

field research on the bay checkerspot. It

is much more probable that this

butterfly was a member of a low-density

resident population than that it was a

‘‘transient,’’ given that dispersal is a rare

event and the chances of one biologist

observing one transient butterfly on one

day are very small, whereas the chances

of seeing a member of a low-density

resident population is quite reasonable.

Therefore, given the presence of

suitable serpentine habitat and other

primary constituent elements of critical

habitat on Communications Hill, the

observation of an adult bay checkerspot

butterfly at the site, the lack of adequate

surveys for this subspecies that may

provide data conclusively

demonstrating it is not present, its

biology, as well as the mobility of the

subspecies and the presence of nearby

populations, we believe that it is highly

likely that Communications Hill is

inhabited by the subspecies.

In reference to the quarry, we are

unaware of any specific data indicating

if the quarry site was inhabited by the

bay checkerspot prior or subsequent to

the substantial earth-removing

operations, but the area does contain

some of the primary constituent

elements (serpentine soils, areas of

Plantago, and nectar plants). Efforts and

experiments involving the restoration of

similar, severely disturbed serpentine

habitat for the bay checkerspot and

plants have been underway at the

sanitary landfill at Kirby Canyon for

several years and are showing promising

results.

(38) Comment: One commenter stated

that Communications Hill should be

analyzed in terms of its connection to

other proposed critical habitat units and

the ability of the bay checkerspot

butterfly to disperse to it over time.

Our Response: Normal within-habitat

movements by bay checkerspot

butterflies are typically less than 150

meters (490 feet) between recaptures

(Ehrlich 1961, 1965; Gilbert and Singer

1973). Harrison (1989) recaptured 5

percent of bay checkerspot butterflies at

distances greater than 1 km (0.6 mi)

from the point of release of the

individuals marked/recaptured.

However, long-distance dispersal has

been documented as far as 7.6 km (4.7

mi) (Service 2001), and 5.6 km (3.5 mi)

for one male, and 3.2 km (2 mi) for one

female (Harrison 1989).

Long-distance habitat patch

colonization may be achieved within a

single season through the long-distance

dispersal of individual butterflies, or

over several seasons through steppingstone habitat patch colonization events.

In a study of the Morgan Hill bay

checkerspot butterfly island-mainland

type metapopulation, no colonizations

of unoccupied habitat patches further

than 4.5 km (2.8 m) from the source

population were detected over a 10-year

period (Harrison et al. 1988). A

mathematical model, of unknown

accuracy, predicted satellite habitat

patches at a distance greater than 6 to

8 km (4 to 5 mi) from large source

populations were not likely to support

populations of the bay checkerspot

butterfly (Harrison et al. 1988).

Communications Hill is approximately

3 km (2 mi) from the Silver Creek

critical habitat unit, which contains the

closest known bay checkerspot butterfly

population. Therefore, we believe that

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21469

this habitat is suitable, reachable, and is

used by the bay checkerspot butterfly,

and warrants critical habitat

designation.

(39) Comment: Several commenters

felt that Communications Hill should be

deleted because the site was not

mentioned in the Recovery Plan for the

bay checkerspot butterfly.

Our Response: Communications Hill

is ranked as ‘‘other current or historic

localities or suitable habitat areas’’ on

page II–203 of the Recovery Plan

(Service 1998). In addition, the site is

listed on Table IV–1 of the Recovery

Plan as a site that is targeted for the

protection of the bay checkerspot, the

endangered Santa Clara Valley dudleya

(Dudleya setchellii), and other species.

Thus, we determined that this unit is

essential for the conservation of the bay

checkerspot butterfly.

(40) Comment: The area west of State

Route 87, Communications Hill unit,

should be deleted from critical habitat

designation. The area south of the water

tanks has been developed into houses.

Our Response: We requested, but did

not receive, more precise information on

the location of the developed area the

commenter discusses. This development

was begun after the 1999 SPOT satellite

imagery we used to refine our proposed

boundaries. We believe, based on a visit

to the site vicinity, that useful habitat

likely remains west of route 87. In the

absence of specific data allowing us to

redraw the boundary in an informed

manner, and because the rule explicitly

states that existing developed areas do

not provide the primary constituent

elements and will not be subject to

consultation, we believe it is most

appropriate to leave the boundary

unchanged in this area.

(41) Comment: A commenter stated

that habitat restoration is needed in the

Edgewood Park/Triangle unit.

Our Response: We have sought to

encourage and facilitate appropriate

native habitat restoration efforts in this

and other units, and will continue to do

so.

(42) Comment: We received

comments stating that the proposed

Kalana Hills unit should be eliminated

entirely, because it is not listed as either

a ‘‘core habitat area’’ or ‘‘potential core

area’’ within the Recovery Plan (Service

1998), or because it is not certain to be

presently occupied. If not eliminated,

the commenters requested that the

boundaries of the proposed Kalana Hills

Unit should be refined to conform to

natural land features and to a voterapproved urban growth boundary

initiative.

Our Response: We have modified the

Kalana Hills unit boundary based on a

site visit and specific information

provided by the landowners and their

consultant. The remaining critical

habitat area contains substantial

occupied areas of good-quality bay

checkerspot habitat close to core areas

and contributes to the Santa Clara

County metapopulation. We, therefore,

consider this area essential to the

conservation of the bay checkerspot.

(43) Comment: One commenter

suggested we expand the Kalana Hills

unit southward to include an area of

habitat south of San Bruno Canyon that

supports Plantago erecta and nectar

plants. Another commenter

recommended that the western

boundary of the San Bruno Mountain

unit should extend west to just before

the summit area; some of the best

remaining stands of Plantago are in

large native grassland patches west of

the western transmission line. Historical

records along the ridgetop may not fully

describe the bay checkerspot’s

distribution on San Bruno Mountain.

The 500-foot contour limit also needs to

be investigated; some grasslands below

that contour may have Plantago stands,

especially in Owl and Buckeye canyons.

Also, a commenter suggested that the

southeast boundary of the San VicenteCalero unit excludes a finger of

serpentine with unknown habitat value.

There is a California Department of Fish

and Game Natural Diversity Data Base

record for the bay checkerspot on a

nearby serpentine outcrop of nearly

equal size.

Our Response: We lack adequate

information about these areas to allow a

critical habitat designation at this time.

The Act provides opportunity for later

revision of critical habitat designation

through petition procedures under

section 4(b)(3)(D).

(44) Comment: Several commenters

requested that the Service adjust the

eastern boundary of the Kirby Unit of

the critical habitat designation. The

landowner provided specific,

identifiable coordinates for an adjusted

boundary and information confirming

that the area excluded by their

adjustment does not support the

primary constituent elements.

Our Response: We believe the

recommended boundary changes to the

Kirby Unit is reasonable and would not

remove any useful areas containing

primary constituent elements. We have

incorporated these changes in the final

rule.

(45) Comment: A commenter

requested that the Service change the

Silver Creek unit, to allow development

in the 340-acre portion and exclude

development in the 240-acre preserve

area as stated in the Service’s biological

opinion for the Ranch on Silver Creek

project.

Our Response: We have adjusted the

boundary using information provided

by the commenter, information present

in our files, and based on site visits. See

the narrative description of the unit,

above, and the map and legal

description of the unit, below, for

specifics.

(46) Comment: One commenter

requested we remove approximately 365

ha (900 ac) actively being used as a golf

course and a landfill in the Kirby unit

from the final critical habitat

designation. These properties have been

the subject of previous understandings

with various resource agencies

including the Service. The landfill is

highly disturbed, and the golf course is

not high-quality bay checkerspot

habitat.

Our Response: We requested but did

not receive information from the

commenter regarding the exact

boundaries of the golf course. The final

rule explicitly states that existing

developed areas will not be subject to

consultation on critical habitat because

they do not contain the primary

constituent elements, so in the absence

of information we felt it was most

appropriate to leave the unit boundary

as proposed in this area. The landfill is

ultimately to be restored to bay

checkerspot habitat and still retains

substantial habitat within its permitted

borders, so critical habitat designation

in this area would ensure that any

Federal involvement considers bay

checkerspot habitat. We will work with

the landowner and the landfill operator

to evaluate the status of prior biological

opinions and complete further

consultation if any is required.

(47) Comment: A commenter noted

that the northwest boundary of the San

Felipe unit excludes some serpentine,

and if deemed good grassland habitat, it

should be included.

Our Response: We believe, based on

serpentine soils mapping, satellite

imagery, and visits to the vicinity, that

the excluded area referred to has been

developed for housing.

(48) Comment: A commenter stated

that it is unknown whether any part of

units 7 (Kalana Hills), 13 (San VicenteCalero), or 14 (Santa Teresa Hills)

currently support bay checkerspots, let

alone a large and viable persistent

population. Neither the proposed rule

nor economic analysis state how much

area within the Kalana Hills unit is

currently occupied by the bay

checkerspot, and the majority of it is

likely unoccupied.

Our Response: Bay checkerspots have

been found in all three units. Especially

21470 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

considering the dramatic population

swings that are normal for this

subspecies, present population size or

extent are not the only relevant, or even

particularly important, factors in

assessing the conservation value of a

given habitat area. Each of these units

has extensive areas of good habitat, is

close to other habitat areas, has a record

of occupation, and can serve as a

‘‘stepping stone’’ in bay checkerspot

metapopulation dynamics, which is

why the Recovery Plan (Service 1998)

and this rule consider them essential to

the conservation of the subspecies.

Issue 4: Economic Comments

(49) Comment: Many commenters

believed that we failed to properly

consider the economic and other

impacts of designating particular areas

as critical habitat.

Our Response: We disagree. We

believe that the draft economic analysis

made a reasonable attempt to identify

all current and future planned activities

within proposed critical habitat. Our

draft economic analysis assessed

potential economic impacts from critical

habitat designation by first identifying

current and future land uses within the

proposed critical habitat. Our analysis

then considered whether these activities

were likely to involve a Federal nexus

and, if so, the likelihood that Service

biologists would want to consult on the

activity over concern for the activity’s

impact on the bay checkerspot or its

critical habitat. For activities identified

by Service biologists as likely to cause

a concern, we attempted to differentiate

between consultations that would take

place because such activities could

jeopardize the continued existence of a

listed species versus those that would

likely take place solely because of

critical habitat designation.

We characterized these effects by

proposed critical habitat unit and were

able to estimate the number of likely

incremental consultations by unit

despite the uncertainties that affect

generating reliable estimates for specific

areas. It is difficult to estimate whether

a potential future activity would require

a consultation and to determine the

degree to which critical habitat

designation influences that outcome.

Given these limitations, we were,

however, able to develop a general

estimate of the number of future

consultations that potentially could

result from the designation of the

proposed rule; we assumed a worst case

scenario for our analysis. We believe

that this estimate, along with the

characterization of activities by unit,

provides us with enough information to

make an informed decision concerning

the designation of the final rule.

(50) Comment: Several commenters

stated that the draft economic analysis

is flawed because it is based on an

improper definition of occupied lands.

Our Response: The determination of

whether or not proposed critical habitat

is within the geographic range occupied

by the bay checkerspot is part of the

biological decision-making process and

lies beyond the scope of an economic

analysis. For a discussion of the

biological justification of why we

believe the areas being designated are

within the geographical areas occupied

by the bay checkerspot, see our response

to comments on Issue 1: Biological

Justification, Methodology, and

Regulatory Issues, above.

(51) Comment: Commenters stated

that the draft economic analysis

underestimated impacts to the regional

housing market in relation to northern

California’s current housing crisis.

Specifically, a few commenters believed

that we failed to fully recognize the cost

of project delays to homebuilders and

consumers that would result from the

designation due to an expected increase

in section 7 consultations. One

commenter also stated that the draft

economic analysis ignored various other

financial losses homebuilders would

incur as a result of an expected

reduction in the number of housing

units that would be allowed to be built

in designated critical habitat areas. Also,

several commenters questioned why the

draft economic analysis failed to

provide an estimate of costs associated

with potential reductions in property

values.

Our Response: We are aware that

some of the land that we proposed as

critical habitat for the bay checkerspot

butterfly faces significant development

pressure. Development activities can

have a significant effect on the land and

the species dependent on the habitat

being developed. We also recognize that

many large-scale development projects

are subject to some type of Federal

nexus before work actually begins. As a

result, we expect that future

consultations, in part, will include

planned and future real estate

development.

However, we believe that these

resulting consultations will not take

place solely with respect to critical

habitat issues. While some project

delays may occur out of concern for a

project’s impact on the bay checkerspot,

large real estate projects are often

delayed for numerous other reasons that

include compliance with various state

and local ordinances and zoning

regulations. It would be improper to

attribute all such changes in the scope

of a development project, along with

associated project delay costs, to critical

habitat when numerous other factors

frequently contribute to these changes.

While it is true that development

activities can adversely affect

designated critical habitat, we believe

that our future consultations regarding

new housing development will take

place because such actions have the

potential to adversely affect a federally

listed species. We believe that such

planned projects would require a

section 7 consultation, regardless of the

critical habitat designation. Again, as we

have previously mentioned, section 7 of

the Act requires Federal agencies to

consult with us whenever actions they

fund, authorize, or carry out can

jeopardize a listed species or adversely

modify its critical habitat.

We also recognize that in some

instances, the designation of critical

habitat could result in a distorted real

estate market because participants may

believe that land within critical habitat

designation is subject to additional

constraints. In truth, this is not the case

because critical habitat designation for

the bay checkerspot is not adding any

extra protection, nor impacting

landowners beyond that associated with

the listing of the subspecies as

threatened under the Act. As a result,

we believe that any resulting distortion

will be temporary and have a relatively

insignificant effect on the real estate

market as it should become readily

apparent to market participants that

critical habitat for the bay checkerspot

is not imposing any additional

constraints on landowner activities

beyond those currently associated with

the listing.

We have also found little evidence to

date to support claims by some

developers that critical habitat

designation would have significant

regional economic impacts. In areas

where critical habitat has been

designated, economic growth has

continued to grow. For example, a study

released by the Coalition for Sonoran

Desert Protection examined the impact

of designating habitat for the cactus

ferruginous pygmy-owl in southern

Arizona (McKenney 2000). Performed 1

year after the designation, the study

found that dire predictions made by

developers in that region have not

materialized. Specifically, high-density

housing development has not slowed,

the value of vacant land has risen, land

sales have continued, and the

construction sector has continued its

steady growth.

Similarly, in a study conducted by

Oliver Houck, the author reviewed over

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21471

71,560 informal and 2,000 formal

consultations conducted under the Act

and found that only 18 projects, or 0.02

percent of the projects we consulted on,

were ultimately terminated (Houck

1993, p. 318). Furthermore, of the 99

jeopardy opinions issued by the Service,

the author found that we issued

‘‘reasonable and prudent alternatives’’

in nearly all of these opinions, which

allowed the projects to proceed (Houck

1993, p. 319).

The economic analysis estimated, for

the Communications Hill unit, that

given the City of San Jose’s specific

plan, the unit will include between

2,500 and 4,000 new residential units,

additional commercial activities, parks,

and schools. Based on this plan, the

economic analysis estimated that

between three and five large-scale

developments may take place on this

unit and assumed that each of these

development projects could entail a

section 7 consultation. The economic

analysis noted, however, that it was not

clear whether planned development

would require a Federal permit, which

then could trigger a section 7

consultation. The economic analysis

also noted that several other federally

protected species inhabit the area, and

as a result, could trigger section 7

consultations, assuming a Federal nexus

exists, regardless of bay checkerspot

critical habitat designation. As a result,

the economic analysis most likely

overestimated the number of section 7

consultations that would be attributable

to critical habitat designation.

We believe that the economic analysis

adequately considered all the potential

economic costs likely to be associated

with potential development and

provides sufficient information for the

Secretary to make a determination

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

(52) Comment: Some commenters

stated that they believed that we

understated the cost of section 7

consultations, and that the findings in

the draft economic analysis concerning

potential associated real estate

development costs are significant

enough to warrant a withdrawal of these

units.

Our Response: In preparing the

economic analysis, we estimated the

potential effects from critical habitat

designation resulting from section 7

consultations that could be attributable

to the designation. As previously stated,

we believe that many of the effects

perceived by the public to be

attributable to critical habitat would

actually occur, regardless of critical

habitat designation, because the bay

checkerspot is a federally protected

species and other listed species occupy

some of the same habitat. This would

trigger consultations, regardless of bay

checkerspot critical habitat designation.

Because we are attempting to estimate

potential future effects from critical

habitat designation, our estimates are

based on potential future activities that

are typical for the areas proposed for

designation.

In practice, the costs associated with

section 7 consultations can vary widely

depending on the activity, its scope, and

areas actually affected. In our

Addendum to the draft economic

analysis, we have used some of the

information provided by commenters to

revise the expected section 7

consultation costs for some areas being

designated. This revised estimate,

however, is further adjusted in our

Addendum to better estimate the

allocation of the section 7 consultation

cost that represents the incremental

effect of this designation. Overall, we

believe we have reasonably estimated

the potential future impacts of critical

habitat designation for the bay

checkerspot.

(53) Comment: We received several

comments stating that the costs

associated with including the Dairy Hill

(located on the northeast portion of the

Communications Hill unit) and

Communications Hill project sites

significantly outweighed the benefit of

designating the sites as critical habitat.

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

Act requires us to designate critical

habitat on the basis of the best scientific

and commercial information available,

and to consider the economic and other

relevant impacts of designating a

particular area as critical habitat. We

may exclude areas from critical habitat

upon a determination that the benefits

of such exclusions outweigh the benefits

of specifying such areas as critical

habitat. We cannot exclude such areas

from critical habitat when such

exclusion will result in the extinction of

the subspecies.

As our economic analysis indicated

there are potential economic costs of

including this area in the final critical

habitat designation, we considered

whether it should be excluded under

section 4(b)(2). The benefits of

excluding these areas would be the

avoidance of these additional costs,

which we estimate could range up to

$6.5 million over the next 10 years.

Actual costs are likely to be significantly

lower, given the historic presence of bay

checkerspot butterflies on the site, the

presence of other listed species, and the

expected overlap of any measures

implemented to protect these species

with measures necessary to protect bay

checkerspot butterfly habitat. In

addition, much of the potential cost

associated with section 7 consultations

will already be required by the presence

of these other listed species. Further,

this maximum cost estimate is derived

from a planning assumption that no

habitat would be preserved within the

units; the high costs are associated with

off-site mitigation. Depending on the

actual extent of mitigation required, and

the actual final level of residential

development within the unit, we

estimate that mitigation costs associated

with critical habitat designation for the

bay checkerspot could range between

0.07 percent and 0.6 percent of the total

value of future residential development

within the unit.

In contrast, the conservation benefits

of including these units in the final

designation are considerable. The

Communications Hill critical habitat

unit historically has been occupied by

the bay checkerspot and contains all of

the primary constituent elements

essential for the conservation of the

subspecies. It also represents the

northwestern-most remnant of the Santa

Clara metapopulation. Such warmer,

lower elevation sites as this are likely to

be especially important to the

subspecies during rare episodes of great

population increase, dispersal, gene

flow, and recolonization of extirpated

sites. Loss of the Communications Hill

unit would likely preclude recovery and

delisting of the subspecies, and could

reduce or eliminate the viability of this

metapopulation, ultimately diminishing

or eliminating the long-term

survivability of the bay checkerspot.

Including the unit in this critical habitat

designation will have important

informational benefits, reinforcing to

our Federal partners and other

stakeholders the importance of this area

to the conservation of the bay

checkerspot butterfly in the future, with

likely low overall costs. To the degree

that the higher costs in our range of cost

estimates are realized, we expect

additional conservation benefits. That

is, where increased costs result from

avoidance of impacts that may destroy

or adversely modify designated critical

habitat, we expect real, on-the-ground

benefits (in addition to these

informational benefits) to the

conservation of the bay checkerspot

butterfly. As a result, we conclude that,

even at the highest range of potential

costs identified in our economic

analysis, the benefits of including these

areas in this final designation as critical

habitat outweigh the possible benefits of

excluding them.

(54) Comment: We received several

comments stating that the draft

economic analysis mis-characterized the

21472 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

potential land use activities on the

Kalana Hills unit by omitting future real

estate development.

Our Response: According to the city

of San Jose’s General Plan, portions of

the Kalana Hills unit are planned for

future real estate development, which

was overlooked in the draft economic

analysis. Because this unit is occupied

and because real estate development in

this area lacks any clear Federal nexus,

it is unlikely that critical habitat

designation would have any significant

effect. In this final rule, however, we

significantly modified this unit to

withdraw the majority of lands

considered suitable for development,

and we do not expect real estate

development activities to be

significantly impacted within this unit.

(55) Comment: One commenter stated

that the draft economic analysis failed

to consider the incremental costs

associated with additional California

Environmental Quality Act (CEQA)

compliance as a result of the critical

habitat rule.

Our Response: We disagree.

Landowners in the state of California

must comply with CEQA whether or not

their land is within the area designated

as critical habitat for a federally-listed

species. The draft economic analysis

discusses the effect that existing state

and local regulations have on current

activities in proposed critical habitat

units. Specifically, CEQA requires

identification of significant

environmental effects of proposed

projects that have the potential to harm

the environment. The lead agency

(typically the California State agency in

charge of the oversight of a project) must

determine whether a proposed project

would have a ‘‘significant’’ effect on the

environment.

Review of the CEQA statute, and

conversations with the California

Resources Agency (one of the agencies

responsible for administering CEQA),

revealed that when a species is known

to occupy a parcel of land, the

designation of critical habitat alone does

not require a lead agency to pursue any

incremental actions. In the case of the

bay checkerspot, the Recovery Plan

(Service 1998) for serpentine soil

species in the San Francisco Bay area

includes a description of the habitat

areas needed by the bay checkerspot.

Impacts to such previously identified

areas would likely result in the need for

compliance with CEQA by project

proponents. Therefore, economic

impacts generated by CEQA on bay

checkerspot habitat areas are part of the

baseline and not attributable to bay

checkerspot critical habitat designation.

Summary of Changes From the

Proposed Rule

Based on a review of public

comments received on the proposed

determination of critical habitat for the

bay checkerspot butterfly, we

reevaluated our proposed designation of

critical habitat. This resulted in some

changes that are reflected in this final

determination. These are: (1) the

exclusion of some lands where new

information revealed that lands were

not essential to the conservation of the

bay checkerspot; (2) refining of the

critical habitat boundaries; and (3)

clarification of the primary constituent

elements.

Based on comments received, we

excluded those areas where new

information revealed that lands were

not essential. This included the

exclusion of approximately 141 ha (348

ac) of primarily agricultural lands from

unit 7, 57 ha (141 ac) of nonserpentine

lands from unit 8, 81 ha (201 ac) of

mostly residential development from

unit 9, 260 ha (643 ac) of mostly

commercial development from unit 10,

and 382 ha (943 ac) of developed areas

and graded lands permitted for

development from unit 12.

These changes resulted in a reduction

of approximately 923 ha (2,279 ac) in

the critical habitat designation from the

proposed rule to the final rule. We

originally had proposed 10,597 ha

(26,182 ac) of critical habitat for the bay

checkerspot, and in this final rule, we

are designating 9,673 ha (23,903 ac).

Certain unit acreages have changed

slightly from the proposed rule, and

these reflect errors in rounding.

Economic Analysis

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

to designate critical habitat on the basis

of the best scientific and commercial

information available and to consider

the economic and other relevant

impacts of designating a particular area

as critical habitat. We may exclude areas

from critical habitat upon a

determination that the benefits of the

exclusions outweigh the benefits of

specifying the areas as critical habitat.

We cannot exclude the areas from

critical habitat when the exclusion will

result in the extinction of the

subspecies.

Economic effects caused by listing the

bay checkerspot as a federally protected

threatened species, and by other

statutes, are the baseline against which

the effects of critical habitat designation

are evaluated. The economic analysis

must then examine the incremental

economic and conservation effects and

benefits of the critical habitat

designation. Economic effects are

measured as changes in national

income, regional jobs, and household

income. An analysis of the economic

effects of the proposed bay checkerspot

critical habitat designation was

prepared (Industrial Economics,

Incorporated, 2001) and made available

for public review (February 9 to March

12, 2001; 66 FR 9683). The final

analysis, which reviewed and

incorporated public comments,

concluded that no significant economic

impacts are expected from critical

habitat designation above and beyond

that already imposed by listing the bay

checkerspot.

The most likely economic effects of

critical habitat designation are on

activities funded, authorized, or carried

out by a Federal agency. The analysis

examined the effects of the proposed

designation on: (1) re-initiation of

section 7 consultations; (2) length of

time in which section 7 consultations

are completed; and (3) new

consultations resulting from the

determination. The draft economic

analysis reported that, although difficult

to assess because the bay checkerspot’s

critical habitat overlapped with the

habitat of other federally protected

species, impacts could be as high as

$1.2 to $6.5 million dollars over the

next 10 years.

Potential impacts that were identified

included consultations with Federal

agencies in the Communications Hill

unit regarding proposed real estate

development projects. Specifically, the

draft economic analysis estimated that

between three and five section 7

consultations could occur based on the

City of San Jose’s estimate and with

costs up to a total of $50,000 for all the

consultations and with associated

mitigation costs that could range

between $0.96 and $3.74 million, based

on a previous consultation recently

completed in the area for another largescale development project. However,

based on comments we received on the

draft analysis, we recognized that the

draft may have underestimated the

consultation costs on Communications

Hill (due to the large scale of

development planned for the hill) and

thus revised the estimates of

consultation costs in the final

addendum to the economic analysis.

The revised estimates for these

consultation costs are $50,000 per

consultation (estimated as 50 percent of

the maximum suggested cost of

$100,000 to account for the impact of

additional listed species within the

unit) or a total of $250,000 for the five

potential consultations. However, due to

the existence of other federally

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21473

protected species within the area which

could trigger consultations regardless of

bay checkerspot critical habitat, much of

the survey work associated with the

consultation, and the consultation itself

would already be required. Therefore, a

substantial portion of the costs

associated with these consultations

most likely would also be attributable to

factors or species other than the bay

checkerspot critical habitat designation,

and thus we believe that this estimate

most likely overstates the actual impacts

of this critical habitat designation.

We believe that any project that

would adversely modify or destroy

critical habitat would also jeopardize

the continued existence of the species,

and that reasonable and prudent

alternatives to avoid jeopardizing the

species would also avoid adverse

modification of critical habitat. Within

the analysis, we determined there

would be costs associated with the

designation, however, these costs were

determined to be negligible, except as

discussed above. Thus, little regulatory

burden or associated significant

additional costs would accrue because

of critical habitat above and beyond that

resulting from listing. Our economic

analysis does recognize that there may

be costs from delays associated with

reinitiating completed consultations

after the critical habitat designation is

made final. There may also be economic

effects due to the reaction of the real

estate market to critical habitat

designation, as real estate values may be

lowered due to perceived increase in the

regulatory burden. However, we believe

this impact will be short-term.

In summary, in our economic

analysis, we estimate that, over the next

10 years, the total cost of this

rulemaking will range between $1.2 and

$6.5 million. This estimate is primarily

attributable to costs associated with

section 7 consultations and potential

modifications to future residential and

commercial real estate development

projects. The high end of the estimate

was a result of assuming no on-site

habitat were preserved in the

Communications Hill unit and 312 acres

of off-site habitat would need to be

purchased to mitigate this loss.

However, the analysis compared this

cost to the estimated value of the

residential development proposed to be

built within the unit. Depending on the

extent of mitigation required, and the

actual final level of residential

development within the unit, we

estimate that mitigation costs associated

with critical habitat designation for the

bay checkerspot could range between

0.07 percent and 0.6 percent of the total

value of future residential development

within the unit. A copy of the final

economic analysis and description of

the exclusion process with supporting

documents are included in our

administrative record and may be

obtained by contacting the Sacramento

Fish and Wildlife Office (see ADDRESSES

section).

Required Determinations

1. Regulatory Planning and Review

In accordance with the criteria in

Executive Order 12866, this rule is a

significant regulatory action and has

been reviewed by the Office of

Management and Budget (OMB).

(a) This rule will not have an annual

economic effect of $100 million or more

or adversely affect an economic sector,

productivity, jobs, the environment, or

other units of government. The bay

checkerspot butterfly was listed as a

threatened subspecies in 1987. In fiscal

years 1987 through 2000, the

Sacramento Fish and Wildlife Office

conducted, or is in the process of

conducting, 4 formal section 7

consultations with other Federal

agencies to ensure their actions would

not jeopardize the continued existence

of the bay checkerspot.

Under the Act, critical habitat may

not be adversely modified by a Federal

agency action; the Act does not impose

any restrictions through critical habitat

designation on non-Federal persons

unless they are conducting activities

funded or otherwise sponsored,

authorized, or permitted by a Federal

agency. Section 7 requires Federal

agencies to ensure that they do not

jeopardize the continued existence of

the species. Based upon our experience

with the species and its needs, we

conclude that any Federal action or

authorized action that could potentially

cause adverse modification of

designated critical habitat would

currently be considered as ‘‘jeopardy’’

under the Act (see Table 2).

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

Categories of activities Activities potentially affected by species listing only

Additional activities potentially affected by critical habitat designation 1

Federal Activities Potentially Affected 2.Activities conducted by the Army Corps of by Engineers, Bureau of

Reclamation, Environmental Protection Agency, Federal Highway

Administration.

Activities by these Federal Agencies in any unoccupied critical

habitat areas.

Private or other non-Federal Activities Potentially Affected 2.Activities that require a Federal action (permit, authorization, or funding) and may remove or destroy bay checkerspot habitat by mechanical, chemical, or other means (e.g., grading, discing, ripping,

and tilling, water diversion, impoundment, groundwater pumping,

irrigation, construction, road building, herbicide application, recreational use, etc.) or appreciably decrease habitat value or quality

through indirect effects (e.g., edge effects, invasion of exotic plants

or animals, fragmentation of habitat).

Funding, authorization, or permitting actions by Federal Agencies in any unoccupied critical

habitat areas.

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

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

Accordingly, the designation of areas

within the geographic range occupied

by the bay checkerspot butterfly has

little, if any, incremental impacts on

what actions may or may not be

conducted by Federal agencies or nonFederal entities that receive Federal

authorization or funding. Non-Federal

entities that do not have a Federal

‘‘sponsorship’’ of their actions are not

restricted by the designation of critical

habitat (however, they continue to be

bound by the provisions of the Act

concerning ‘‘take’’ of the species).

21474 Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations

Designation of areas of unknown

occupancy as critical habitat may have

impacts on what actions may or may not

be conducted by Federal agencies or

non-Federal entities that receive Federal

authorization or funding. Based on our

understanding of the threats to the

species, the prohibition against adverse

modification of critical habitat in areas

of unknown occupancy is not expected

to impose any additional restrictions to

federally sponsored projects or activities

occurring in these areas, unless we

make a determination that the proposed

activity would result in an appreciable

reduction of the value of the critical

habitat for both the survival and

recovery of the bay checkerspot. As

discussed in the final addendum to the

economic analysis, we determined that

the costs of any additional consultations

and any resulting project modifications

will not have an annual economic effect

of $100 million or more or adversely

affect an economic sector, productivity,

jobs, the environment, or other units of

government.

(b) This rule will not create

inconsistencies with other agencies’

actions. As discussed above, Federal

agencies have been required to ensure

that their actions do not jeopardize the

continued existence of the bay

checkerspot butterfly since the listing in

1987. The prohibition against adverse

modification of critical habitat is not

expected to impose any substantial

additional restrictions to those that

currently exist. Because of the potential

for impacts on other Federal agencies’

activities, we will continue to review

this action for any inconsistencies with

other Federal agencies’ actions.

(c) This rule will not materially affect

entitlements, grants, user fees, loan

programs, or the rights and obligations

of their recipients. Federal agencies are

currently required to ensure that their

activities do not jeopardize the

continued existence of the subspecies,

and as discussed above, we do not

anticipate that the adverse modification

prohibition (resulting from critical

habitat designation) will have any

significant incremental effects.

(d) OMB has determined that this rule

will raise novel legal or policy issues

and, as a result, this rule has undergone

OMB review.

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

et seq.)

In the economic analysis, we

determined that designation of critical

habitat will not have a significant effect

on a substantial number of small

entities. As discussed under Regulatory

Planning and Review above, and in this

final determination, this rule is not

expected to result in any restrictions in

addition to those currently in existence.

Although small entities may carry out

activities within designated critical

habitat, many of these activities lack a

Federal nexus and therefore their

impacts on critical habitat do not need

to be considered. For those actions

requiring federal funding or authority,

we believe that the incremental impacts

attributable to this rule are not

significant for reasons explained above

and in the draft economic analysis.

Therefore, we are certifying that the

designation of critical habitat for the bay

checkerspot butterfly will not have a

significant economic impact on a

substantial number of small entities. As

indicated in Table 1 (see Critical Habitat

Designation section), we designated

property owned by State and local

governments, and private property.

Within these areas, the types of Federal

actions or authorized activities that we

have identified as potential concerns

are:

(1) Regulation of activities affecting

waters of the United States by the Corps

of Engineers under section 404 of the

Clean Water Act;

(2) Regulation of water flows,

execution of water contracts, water

delivery, transfer of Federal project

water, damming, diversion, and

channelization by the Bureau of

Reclamation or the Corps of Engineers;

(3) Pesticide and air quality regulation

by the Environmental Protection

Agency; and

(4) Funding and regulation of road

construction by the FHWA.

Many of the activities sponsored by

Federal agencies within critical habitat

areas are carried out by small entities (as

defined by the Regulatory Flexibility

Act) through contract, grant, permit, or

other Federal authorization. As

discussed above, these actions are

already currently required to comply

with the protections of the Act, and the

designation of critical habitat is not

anticipated to have any additional

effects on these activities.

For actions on non-Federal property

that do not have a Federal connection

(such as funding or authorization), the

current restrictions concerning take of

the subspecies remain in effect, and this

final rule will have no additional

restrictions.

Small Business Regulatory Enforcement

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

In the economic analysis, we

determined that designation of critical

habitat would not cause: (a) any effect

on the economy of $100 million or

more; (b) any increases in costs or prices

for consumers, individual industries,

Federal, State, or local government

agencies, or geographic regions; and (c)

any significant adverse effects on

competition, employment, investment,

productivity, innovation, or the ability

of U.S.-based enterprises to compete

with foreign-based enterprises. Please

refer to the final economic analysis for

a discussion of the effects of this

determination.

Unfunded Mandates Reform Act (2

U.S.C. 1501 et seq.)

In accordance with the Unfunded

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

seq.):

(a) This rule will not ‘‘significantly or

uniquely’’ affect small governments. A

Small Government Agency Plan is not

required. Small governments will be

affected only to the extent that any

programs having Federal funds, permits,

or other authorized activities must

ensure that their actions will not

adversely affect the critical habitat.

However, as discussed above, these

actions are currently subject to

equivalent restrictions through the

listing protections of the subspecies,

and few, if any, further restrictions are

anticipated.

(b) This rule will not produce a

Federal mandate of $100 million or

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

‘‘significant regulatory action’’ under

the Unfunded Mandates Reform Act.

The designation of critical habitat

imposes no obligations on State or local

governments.

Takings

In accordance with Executive Order

12630, this rule does not have

significant takings implications. A

takings implication assessment is not

required. As discussed above, the

designation of critical habitat affects

only Federal actions. The rule will not

increase or decrease the current

restrictions on private property

concerning take of the bay checkerspot

butterfly. Due to current public

knowledge of the subspecies’

protections, the prohibition against take

of the subspecies both within and

outside of the designated areas, and the

fact that critical habitat provides no

substantial incremental restrictions, we

do not anticipate that property values

will be affected by the critical habitat

designation. While real estate market

values may temporarily decline

following designation, due to the

perception that critical habitat

designation may impose additional

regulatory burdens on land use, we

expect any such impacts to be short

term.

Federal Register / Vol. 66, No. 83 / Monday, April 30, 2001 / Rules and Regulations 21475

Additionally, critical habitat

designation does not preclude

development of HCPs and issuance of

incidental take permits. Owners of areas

that are included in the designated

critical habitat will continue to have the

opportunity to utilize their property in

ways consistent with the survival of the

bay checkerspot butterfly.

Federalism

In accordance with Executive Order

13132, the rule does not have significant

Federalism effects. A Federalism

assessment is not required. In keeping

with Department of the Interior and

Department of Commerce policy, we

requested information from, and

coordinated development of this critical

habitat designation with, appropriate

State resource agencies in California.

The designation of critical habitat in

areas currently occupied by the bay

checkerspot butterfly imposes no

substantial additional restrictions to

those currently in place and, therefore,

has little incremental impact on State

and local governments and their

activities. The designation may have

some benefit to these governments in

that the areas essential to the

conservation of the subspecies are more

clearly defined, and the primary

constituent elements of the habitat

necessary to the survival of the

subspecies are specifically identified.

While making this definition and

identification does not alter where and

what federally sponsored activities may

occur, it may assist these local

governments in long-range planning

(rather than waiting for case-by-case

section 7 consultations to occur).

Civil Justice Reform

In accordance with Executive Order

12988, the Department of the Interior’s

Office of the Solicitor has determined

that this rule does not unduly burden

the judicial system and meets the

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

of the Order. We designated critical

habitat in accordance with the

provisions of the Endangered Species

Act. The rule uses standard property

descriptions and identifies the primary

constituent elements within the

designated areas to assist the public in

understanding the habitat needs of the

bay checkerspot butterfly.

Paperwork Reduction Act of 1995 (44

U.S.C. 3501 et seq.)

This rule references permits for HCPs

which contain information collection

activity. The Fish and Wildlife Service

has OMB approval for the collection

under OMB Control Number 1018–0094.

The Service may not conduct or

sponsor, and a person is not required to

respond to a collection of information

unless it displays a currently valid OMB

control number.

National Environmental Policy Act

We determined that we do not need

to prepare an Environmental

Assessment and/or an Environmental

Impact Statement as defined by the

National Environmental Policy Act of

1969 in connection with regulations

adopted pursuant to section 4(a) of the

Act as amended. We published a notice

outlining our reason for this

determination in the Federal Register

on October 25, 1983 (48 FR 49244).

Government-to-Government

Relationship With Tribes

In accordance with the President’s

memorandum of April 29, 1994,

‘‘Government-to-Government Relations

with Native American Tribal

Governments’’ (59 FR 22951), E.O.

13175, and 512 DM 2, we understand

that federally recognized Tribes must be

related to on a Government-toGovernment basis. We are not aware of

any Tribal lands essential for the

conservation of the bay checkerspot.

Therefore, we are not designating

critical habitat for the bay checkerspot

on Tribal lands.

References Cited

A complete list of all references cited

in this final rule is available upon

request from the Sacramento Fish and

Wildlife Office (see ADDRESSES section).

Authors

The primary authors of this rule are

the staff of the Sacramento Fish and

Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species,

Exports, Imports, Reporting and

recordkeeping requirements,

Transportation.

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. Amend § 17.11(h), by revising the

entry for ‘‘Butterfly, bay checkerspot,’’

under ‘‘INSECTS,’’ 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

*******

INSECTS

*******

Butterly, bay

checkerspot.

Euphydryas editha

bayensis.

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

*******

3. Amend § 17.95(i) by adding critical

habitat for the bay checkerspot butterfly

(Euphydryas editha bayensis) in the

same alphabetical order as this

subspecies occurs in § 17.11(h), to read

as follows:

§ 17.95 Critical habitat—fish and wildlife.

* * * * *

(i) Insects.

Bay Checkerspot Butterfly (Euphydryas

editha bayensis)

1. Critical habitat units are depicted for

San Mateo and Santa Clara Counties,

California, on the maps below.

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2. Within these areas, the primary

constituent elements are those habitat

components that are essential for the primary

biological needs of foraging, sheltering,

breeding, maturation, and dispersal. The

primary constituent elements are one or more

of the following: stands of Plantago erecta,

Castilleja exserta, or Castilleja densiflora;

spring flowers providing nectar; pollinators

of the bay checkerspot’s food and nectar

plants; soils derived from serpentinic rock;

and space for dispersal between habitable

areas. In addition, the following are each

primary constituent elements to be conserved

when present in combination with one or

more of the primary constituent elements

above: areas of open grassland, topography

with varied slopes and aspects providing

surface conditions with warm and moderate

to cool temperatures during sunny spring

days, stable holes or cracks in the soil and

surface rocks or rock outcrops, wetlands

providing moisture during times of spring

drought.

3. Within these areas, existing humanconstructed features and structures, such as

buildings, roads, railroads, urban

development, and other human-constructed

features not containing any primary

constituent elements, are not considered

critical habitat and are not included in the

designation.

Unit 1 (Edgewood Park/Triangle Unit): San

Mateo County, California. Bounded as

follows: beginning at the intersection of

Edgewood Road and Canada Road;

southwesterly, south, and southeasterly along

the light-duty extension of Edgewood Road

southwest of Canada Road to its intersection

with an unnamed intermittent drainage

tributary to Upper Crystal Springs Reservoir

as shown on the USGS Woodside 7.5 minute

quadrangle (1961, photorevised 1968 and

1973); then southwesterly along this drainage

to its intersection with I–280; then

southeasterly along the eastern edge of

pavement of I–280 to a point due southwest

of the southernmost corner of Edgewood

Natural Preserve (this just south of a

substation shown on the Woodside

quadrangle, where the State Fish and Game

Refuge boundary meets Canada Road and an

elevation of 161 m (528 ft) is marked); then

due northeast to the southernmost corner of

Edgewood Natural Preserve; then northeast

along the southeast boundary of Edgewood

Natural Preserve to the 159 m (520 ft)

elevation contour as shown on the Woodside

quadrangle; then northwesterly along this

contour to its intersection with Edgewood

Road; then southwesterly along the south

edge of pavement of Edgewood Road to the

starting point.

Unit 2 (Jasper Ridge Unit): San Mateo

County, California. Bounded as follows: to

the east, north, and west by the 110 m (360

ft) elevation contour around Jasper Ridge

(USGS Palo Alto 7.5 minute quadrangle,

1991); and to the south by the current

boundary of the Jasper Ridge Biological

Reserve, which is largely coincident with the

northern boundary of the town of Portola

Valley.

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Unit 3 (San Bruno Mountain Unit):

San Mateo County, California. All area

on San Bruno Mountain above the 152

m (500 ft) elevation contour and east of

the western Pacific Gas and Electric

transmission corridor (this transmission

corridor runs south to southwesterly

from the west end of Guadalupe Valley

to the South San Francisco/Colma City

border) as shown on the USGS San

Francisco South 7.5 minute quadrangle,

1956).

Unit 4 (Bear Ranch Unit): Santa Clara

County, California. Those portions of

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

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

Reservoir Road—a light-duty road

shown but not named on the USGS

Gilroy 7.5 minute quadrangle (1955,

photorevised 1968 and 1973).

Unit 5 (San Martin Unit): Santa Clara

County, California. Bounded on the

north by a line running due east-west

through a point 305 m (1000 ft) due

north of a hilltop marked 239 m (785 ft)

in elevation on the USGS Mt. Madonna

7.5 minute quadrangle (1955,

photorevised 1968). This hilltop is near

latitude 37 degrees 4 minutes 42

seconds north, longitude 121 degrees 38

minutes 19 seconds west (Hayes Lane,

not shown on the Mt. Madonna

quadrangle, also runs in the vicinity of

this hilltop). The north boundary runs

as far east as its intersection with the 97

m (320 ft) elevation contour west of

Coolidge Avenue as shown on the Mt.

Madonna quadrangle. From this point

the boundary runs southeasterly,

southerly, and westerly following this

contour, continuing onto the USGS

Gilroy 7.5 minute quadrangle (1955,

photorevised 1968 and 1973) and back

to its intersection with longitude 121

degrees 37 minutes 30 seconds west (the

junction between the two quadrangles).

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

from this latter point for a distance of

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

of west-northwest (bearing 291.5

degrees) to a hilltop labeled 151 m (495

ft) in elevation on the Mt. Madonna

quadrangle. The west boundary of the

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

north boundary.

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Unit 6 (Communications Hill Unit):

Santa Clara County, California. Starting

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

contour due south of the 133 m (435 ft)

summit of Communications Hill, the

Communications Hill unit is bounded to

the south by the 73 m (240 ft) elevation

contour as shown on the USGS San Jose

East 7.5 minute quadrangle map (1961,

photorevised 1980; the hill is not named

on this map but the county

communications center is shown), as far

west as its intersection with Highway 87

(this highway is not shown on the San

Jose East quadrangle); then south along

Highway 87 (west edge of pavement) to

the 55 m (180 ft) elevation contour (all

contours in this description are as

shown on the San Jose East quadrangle);

then south, west, and north along this

contour to a point due west of the

southernmost point of the southern of

the two water tanks on the top of the hill

west of Highway 87; then due east for

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

point due south of the easternmost point

of the eastern of the two water tanks;

then due north for about 439 m (1,440

ft) to the intersection with the 85 m (280

ft) elevation contour; then slightly north

of east on a straight line to the southern

corner of the property of the county

communications facility; then on a line

to the northern corner of this property;

then due southwest to Carol Drive (not

named on the San Jose East quadrangle);

then slightly north of northwest (bearing

322 degrees) to the 55 m (180 ft)

elevation contour; then along this

contour easterly and northeasterly until

it reaches the second dirt road as shown

on the San Jose East quadrangle; then

due northeast across the Southern

Pacific railroad tracks to the 55 m (180

ft) elevation contour; then northwesterly

and northeasterly along this contour to

the boundary of Oak Hill Memorial Park

cemetery; then following the cemetery

boundary southeasterly, skirting a hill

summit marked 98 m (323 ft) on the San

Jose East quadrangle, to the first 67 m

(220 ft) elevation contour southeast of

this summit; then due southwest to the

49 m (160 ft) elevation contour

immediately west of the railroad tracks;

then southeasterly along this contour as

shown on the 1961 San Jose East

quadrangle to its intersection with

Hillsdale Avenue; then southwesterly

along Hillsdale Avenue (north edge of

pavement) to its intersection with Vista

Park Drive (not shown on the San Jose

East quadrangle); then due north to the

73 m (240 ft) elevation contour; then

westerly along this contour to the

starting point.

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Unit 7 (Kalana Hills Unit): Santa Clara

County, California. From USGS 1:24,000

quadrangle map Morgan Hill, lands

bounded by the following UTM Zone 10

NAD83 Coordinates (E,N): 612000,

4115810; 612070, 4115810; 612090,

4115790; 612170, 4115750; 612210,

4115700; 612240, 4115640; 612270,

4115590; 612270, 4115490; 612330,

4115490; 612360, 4115460; 612360,

4115370; 612430, 4115370; 612470,

4115360; 612550, 4115280; 612580,

4115190; 612630, 4115150; 612670,

4115110; 612710, 4115060; 612710,

4115050; 612730, 4115000; 612730,

4114960; 612710, 4114910; 612550,

4114910; 612550, 4114880; 612510,

4114840; 612510, 4114820; 612480,

4114790; 612450, 4114740; 612400,

4114700; 612350, 4114660; 612180,

4114660; 612130, 4114700; 612110,

4114700; 612080, 4114720; 612060,

4114720; 611960, 4114790; 611810,

4114900; 611800, 4115630; 611850,

4115680; 611880, 4115680; 611900,

4115700; 611940, 4115770; 612000,

4115810 Including lands bounded by:

612830, 4114610; 612900, 4114610;

612950, 4114590; 612950, 4114520;

612940, 4114510; 612940, 4114500;

612950, 4114490; 612950, 4114470;

612960, 4114460; 612960, 4114410;

612970, 4114410; 612970, 4114380;

612990, 4114360; 613000, 4114360;

613000, 4114370; 613040, 4114370;

613080, 4114360; 613090, 4114360;

613090, 4114410; 613080, 4114410;

613080, 4114480; 613150, 4114530;

613230, 4114530; 613280, 4114510;

613290, 4114510; 613370, 4114510;

613440, 4114470; 613460, 4114440;

613490, 4114400; 613490, 4114340;

613460, 4114300; 613460, 4114290;

613500, 4114290; 613530, 4114320;

613580, 4114320; 613610, 4114300;

613660, 4114260; 613710, 4114160;

613710, 4114090; 613700, 4114040;

613590, 4113950; 613500, 4113940;

613350, 4114030; 613350, 4114160;

613270, 4114210; 613200, 4114200;

613160, 4114140; 612630, 4114460;

612630, 4114470; 612680, 4114530;

612770, 4114560; 612830, 4114610.

Unit 8 (Kirby Unit): Santa Clara

County, California. Beginning at the

intersection of the intermittent creek

draining Metcalf Canyon (Metcalf

Canyon on the USGS Morgan Hill 7.5

minute quadrangle, 1955, photorevised

1980) with Highway 101 (current

alignment, not shown on Morgan Hill

quadrangle), the unit is bounded on the

east, southeast, and south by Highway

101 (east edge of pavement, current

alignment, not shown on the Morgan

Hill quadrangle), south to where it

crosses Coyote Creek. From there the

boundary runs southeasterly up along

Coyote Creek to the Anderson Lake

dam; then east-northeasterly up the face

of the dam to Anderson Lake (Anderson

Reservoir). The unit is bounded on the

southeast by Anderson Lake. From the

northernmost tip of Anderson Lake (at

latitude 37 degrees 12 minutes 15

seconds north) the boundary runs

slightly north of west for a distance of

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

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

the Morgan Hill quadrangle; then

slightly west of northwest for a distance

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

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

the Morgan Hill quadrangle; then nearly

due west for a distance of about 500 m

(1,640 ft) to a hilltop marked 430 m

(1,412 ft) in elevation on the Morgan

Hill quadrangle; then north of northwest

(bearing 325 degrees) for a distance of

about 2,551 m (8,370 ft) to a hilltop

marked 444 m (1,457 ft) in elevation on

the Morgan Hill quadrangle; then on a

line running from this hilltop south of

west-southwest (bearing 237 degrees) to

the intersection of the Metcalf Canyon

drainage with the 354 m (1,160 ft)

elevation contour as shown on the

Morgan Hill quadrangle. The north

boundary of the unit then continues

westerly down the Metcalf Canyon

drainage to the starting point.

Unit 9 (Morgan Hill Unit): Santa Clara

County, California. From USGS 1:24,000

quadrangle map Morgan Hill, lands

bounded by the following UTM Zone 10

NAD83 Coordinates (E,N): 617000,

4112300; 617300, 4112300; 617500,

4112000; 617600, 4112000; 617800,

4111900; 617900, 4111900; 618100,

4111800; 618100, 4111700; 618200,

4111500; 618200, 4111300; 618000,

4111100; 617700, 4110900; 617400,

4110700; 617200, 4110700; 617200,

4110900; 617000, 4111100; 616900,

4111100; 616900, 4110800; 616500,

4110800; 616300, 4110600; 616000,

4110600; 615600, 4110800; 615600,

4111000; 615700, 4111300; 615700,

4111700; 616000, 4111700; 616000,

4111800; 616200, 4111900; 616300,

4112000; 616400, 4112000; 616400,

4111900; 616500, 4111900; 616500,

4112000; 616600, 4112000; 616800,

4112200; 617000, 4112300.

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Unit 10 (Metcalf Unit): Santa Clara

County, California. From USGS 1:24,000

quadrangle maps Lick Observatory,

Morgan Hill, San Jose East, and Santa

Teresa Hills, lands bounded by the

following zone 10 NAD83 Coordinates

(E,N): 608300, 4125800; 608500,

4125800; 608900, 4125400; 609500,

4125400; 609800, 4125300; 610200,

4125600; 610300, 4125600; 610600,

4125500; 610700, 4125500; 610900,

4125300; 610900, 4125000; 611000,

4124900; 611200, 4124500; 611300,

4124500; 611400, 4124400; 611400,

4124300; 611500, 4124200; 611500,

4124100; 611800, 4123900; 612100,

4123800; 612500, 4123500; 612500,

4123400; 612800, 4123200; 613600,

4123200; 613700, 4123000; 613900,

4122500; 613900, 4122400; 614100,

4122000; 614100, 4121900; 614200,

4121700; 614200, 4121600; 613900,

4121400; 613800, 4121400; 613500,

4121500; 613400, 4121500; 613100,

4121700; 612200, 4121700; 611900,

4121600; 611800, 4121600; 611500,

4121400; 611300, 4121400; 611200,

4121300; 611000, 4121300; 610700,

4121500; 610400, 4121700; 610100,

4121900; 609900, 4122100; 609900,

4122200; 610100, 4122300; 610100,

4122400; 610000, 4122600; 610000,

4122800; 609900, 4122900; 609900,

4123000; 609800, 4123100; 609700,

4123100; 609600, 4123000; 609500,

4123000; 609500, 4123600; 609200,

4124000; 609100, 4123900; 608900,

4123900; 608000, 4124500; 608000,

4124600; 607700, 4125000; 607700,

4125300; 608300, 4125800.

Unit 11 (San Felipe Unit): Santa Clara

County, California. The east boundary of

the San Felipe critical habitat unit

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

identified in the northeast boundary of

the Metcalf unit (this peak is labeled on

the USGS Morgan Hill 7.5 minute

quadrangle (1955, photorevised 1980),

near latitude 37 degrees 15 minutes

north, longitude 121 degrees 43 minutes

west); and proceeds from that hilltop

due north to San Felipe Road at an

elevation of about 296 m (970 ft) (USGS

Lick Observatory 7.5 minute

quadrangle, 1955, photorevised 1968);

then west-northwesterly along San

Felipe Road (southwest edge of

pavement) for a distance of about 2.7 km

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

north boundary is formed by Silver

Creek Road (south edge of pavement)

from San Felipe Road to Silver Creek

(the creek crossing is on the USGS San

Jose East 7.5 minute quadrangle, 1961,

photorevised 1980). The west boundary,

which abuts the Metcalf unit, runs from

Silver Creek Road southeasterly along

Silver Creek (mostly on Lick

Observatory quadrangle). The south

boundary also abuts the Metcalf unit,

and runs from Silver Creek (Morgan Hill

quadrangle) due east to the starting

point.

Unit 12 (Silver Creek Hills Unit):

Santa Clara County, California. From

USGS 1:24,000 quadrangle maps San

Jose East, lands bounded by the

following UTM Zone 10 NAD83

Coordinates (E,N): 606600, 4128500;

606800, 4128500; 607000, 4128400;

607000, 4128200; 607100, 4128100;

606900, 4127900; 606900, 4127800;

607000, 4127600; 607300, 4127600;

607500, 4127700; 607700, 4127700;

607800, 4127600; 607800, 4127500;

607700, 4127400; 607800, 4127300;

607800, 4127100; 608000, 4127000;

608100, 4126900; 608100, 4126700;

607900, 4126600; 607900, 4126400;

608300, 4126000; 608300, 4125900;

608200, 4125800; 608000, 4125700;

607900, 4125600; 607900, 4125500;

607700, 4125400; 607600, 4125400;

606600, 4126100; 606400, 4126200;

606300, 4126300; 606200, 4126300;

606100, 4126400; 605900, 4126500;

605800, 4126600; 605600, 4127000;

605600, 4127100; 606200, 4127000;

606400, 4126800; 606800, 4126600;

607200, 4126700; 607400, 4127000;

607300, 4127200; 607100, 4127400;

606900, 4127500; 606700, 4127700;

606300, 4128200; 606600, 4128300;

606600, 4128500, including lands

bounded by: 605600, 4128300; 605900,

4128300; 606000, 4128100; 605900,

4128000; 605700, 4128000; 605600,

4128100; 605600, 4128300 and lands

bounded by: 606200, 4128100; 606200,

4128000; 606100, 4128000; 606100,

4127900; 606000, 4127900; 606000,

4128000; 606100, 4128100; 606200,

4128100.

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Unit 13 (San Vicente-Calero Unit):

Santa Clara County, California. Bounded

on the north and northwest by Calero

Reservoir, by the canal and siphon

running westerly of the main reservoir

dam (dam on the Arroyo Calero), and by

the city boundary of the City of San

Jose, which follows the canal at an

elevation of roughly 152 m (500 ft), as

far as its intersection with Chilanian

Gulch. The boundary then runs

generally southeast following Chilanian

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

R.2 E. (Mount Diablo meridian/base

line) dividing line, then due south to the

Calero County Park border. The park

boundary forms the rest of the western,

southern, and southeastern border of the

unit. The eastern border of the unit is

formed by a line running due north from

the southern Calero County Park

boundary through a hilltop elevation

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

Santa Teresa Hills 7.5 minute

quadrangle (1953, photorevised 1980) to

Calero Reservoir. This hilltop is near

latitude 37 degrees 10 minutes 15

seconds north, longitude 121 degrees 46

minutes 15 seconds west.

Unit 14 (Santa Teresa Hills Unit):

Santa Clara County, California. The east

and southeast boundary runs as follows,

beginning at the westernmost corner of

the Tulare Hill Corridor unit: due

southeast and then northeast along the

Tulare Hill Corridor unit boundary, to

the 85 m (280 ft) elevation contour

(USGS Santa Teresa Hills 7.5 minute

quadrangle, 1953, photorevised 1980);

then southeasterly, south, and

southwesterly along this elevation

contour (continues onto USGS Morgan

Hill 7.5 minute quadrangle, 1955,

photorevised 1980, and back) to its

intersection with Bailey Avenue. The

south, southwest, and western border of

the unit then continues from this point,

along a line running west-southwesterly

(bearing 248 degrees) for a distance of

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

north of Bailey Avenue labeled 108 m

(354 ft) in elevation on the Santa Teresa

Hills quadrangle; then north of east

(bearing 284 degrees) for a distance of

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

intersection of a land grant boundary

with a transmission line shown on the

1980 photorevised Santa Teresa Hills

quadrangle at an elevation of about 152

m (500 ft); then north-northwesterly

along this land grant line to the

intersection with Fortini Road; then

generally west-southwest and west

along Fortini Road to the intersection

with San Vicente Avenue (these road

names do not appear on the Santa

Teresa quadrangle); then westerly along

San Vicente Avenue to where it turns

south south-west; then continuing

westerly and northwesterly from this

point along a land grant boundary

shown on the Santa Teresa Hills

quadrangle to its intersection with both

Henwood Drive (road name does not

appear on the Santa Teresa quadrangle)

and an unnamed intermittent drainage

(tributary to Arroyo Calero); then

northeasterly and northerly up this

drainage as marked on the Santa Teresa

Hills quadrangle to the 183 m (600 ft)

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

(1,390 ft) to the first intersection with

the 280 m (920 ft) elevation contour;

then west-northwest for a distance of

about 265 m (870 ft) to a hilltop over

280 m (920 ft) in elevation, then slightly

north of west (bearing 276 degrees) for

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

the end of a dirt road as marked on the

1980 photorevised Santa Teresa Hills

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

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

a hilltop marked 173 m (568 ft) in

elevation on the Santa Teresa Hills

quadrangle; then due northeast to the 73

m (240 ft) elevation contour as shown

on the Santa Teresa Hills quadrangle.

The northern boundary of the unit is

formed by the 73 m (240 ft) elevation

contour as shown on the Santa Teresa

Hills quadrangle.

Unit 15 (Tulare Hill Corridor Unit):

Santa Clara County, California. Bounded

on the northeast by the most

northeasterly edge of pavement of

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

included, and the unit abuts the Kirby

and Metcalf units). Bounded on the

northwest, west, and southwest by a

line extending due southwest from the

northeast boundary to the corner of

Cheltenham Way and Coburn Court,

then southwesterly along Cheltenham

Way from Coburn Court to the

intersection with Santa Teresa

Boulevard, then southeasterly along

Santa Teresa Boulevard to the 73 m (240

ft) elevation contour as shown on the

USGS Santa Teresa Hills 7.5 minute

quadrangle (1953, photorevised 1980),

then southwesterly along this contour to

the border of Santa Teresa County Park,

then along a line due southeast to the

southeast border of the unit. Bounded

on the southeast by a line running due

northeast-southwest through the

southeastern-most point of the 85 m

(280 ft) contour of Tulare Hill, as shown

on the Morgan Hill quadrangle.

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* * * * * Dated: April 20, 2001.

Joseph E. Doddridge,

Acting Assistant Secretary for Fish and

Wildlife and Parks.

[FR Doc. 01–10333 Filed 4–27–01; 8:45 am]

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