[Federal Register Volume 66, Number 114 (Wednesday, June 13, 2001)]
[Proposed Rules]
[Pages 32052-32071]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-14309]



[[Page 32051]]

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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Proposed Designation of 
Critical Habitat for Deinandra conjugens (Otay tarplant); Proposed Rule

Federal Register / Vol. 66, No. 114 / Wednesday, June 13, 2001 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AH00


Endangered and Threatened Wildlife and Plants; Proposed 
Designation of Critical Habitat for Deinandra conjugens (Otay tarplant)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service, propose designation of 
critical habitat for Deinandra conjugens [= Hemizonia conjugens] (Otay 
tarplant) pursuant to the Endangered Species Act of 1973, as amended 
(Act). Deinandra conjugens was federally listed as threatened (under 
the name Hemizonia conjugens) throughout its range in southwestern 
California and northwestern Baja California, Mexico in 1998. A total of 
approximately 2,685 hectares (ha) (6,630 acres (ac)) in San Diego 
County, California, are proposed for designation as critical habitat 
for D. conjugens. We have not proposed critical habitat on lands 
covered by an existing, legally operative, Habitat Conservation Plan 
(HCP) under section 10(a)(1)(B) of the Act in which Deinandra conjugens 
is a covered species. In areas where HCPs have not yet been completed, 
we have proposed designation of critical habitat for lands encompassing 
essential habitat for Deinandra conjugens.
    If this proposal is made final, section 7 of the Act requires 
Federal agencies 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. Section 4 of the 
Act requires us to consider economic and other impacts of specifying 
any particular area as critical habitat.
    We solicit data and comments from the public on all aspects of this 
proposal, including data on economic and other impacts of the 
designation. We may revise or further refine critical habitat 
boundaries prior to final designation based on habitat and plant 
surveys, public comments on the proposed critical habitat rule, 
finalization of pending habitat conservation plans, and new scientific 
and commercial information.

DATES: We will accept comments until the close of business on August 
13, 2001. Public hearing requests must be received by July 30, 2001.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials by any one of several methods:
    1. You may submit written comments and information to the Field 
Supervisor, Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 2730 Loker Avenue West, Carlsbad, California 92008.
    2. You may hand-deliver written comments to our Carlsbad Fish and 
Wildlife Office at the address given above.
    3. You may send comments by electronic mail (e-mail) to: 
<a href="/cdn-cgi/l/email-protection#fe9889cf9d988991a19a9b9d91be98898dd0999188"><span class="__cf_email__" data-cfemail="caacbdfba9acbda595aeafa9a58aacbdb9e4ada5bc">[email protected]</span></a>. See the Public Comments Solicited section below 
for file format and other information about electronic filing.
    You may view comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, by 
appointment, during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, U.S. Fish and Wildlife Office, at the above 
address (telephone 760/431-9440; facsimile 760/431-9618).

SUPPLEMENTARY INFORMATION:

Background

    Deinandra conjugens (Otay tarplant) was known as Hemizonia 
conjugens when it was listed on October 13, 1998 (63 FR 54938). Since 
then, studies analyzing plant and flower morphology and genetic 
information prompted Baldwin (1999) to revise the Madiinae (tarplants), 
a tribe in the Asteraceae (sunflower family), and reclassify several 
species into new or different genera. As a result, Deinandra conjugens 
is now the accepted scientific name for Hemizonia conjugens. This 
taxonomic change does not alter the limits or definition of D. 
conjugens. Because this taxonomic change was published and is generally 
accepted by the scientific community, we are proposing to change the 
name of H. conjugens to D. conjugens in 50 CFR 17.12 (h), and will use 
D. conjugens in this proposed rule.
    Deinandra conjugens was first described by David D. Keck (1958) as 
Hemizonia conjugens based on a specimen collected by L.R. Abrams in 
1903 from river bottom land in the Otay Valley area of San Diego 
County, California. Deinandra conjugens is a glandular, aromatic annual 
of the Asteraceae. It has a branching stem that generally ranges from 5 
to 25 centimeters (2 to 10 inches) in height with deep green or gray-
green leaves covered with soft, shaggy hairs. The yellow flower heads 
are composed of 8 to 10 ray flowers and 13 to 21 disk flowers with 
hairless or sparingly downy corollas (fused petals). The phyllaries 
(small bracts associated with the flower heads) are ridged and have 
short-stalked glands and large, stalkless, flat glands near the 
margins. Deinandra conjugens occurs within the range of D. fasciculata 
[=Hemizonia fasciculata] (fasciculated tarplant) and D. paniculata [=H. 
paniculata] (San Diego tarplant). Deinandra conjugens can be 
distinguished from other members of the genus by its ridged phyllaries, 
black anthers (part of flower that produces pollen), and by the number 
of disk and ray flowers. The disk and ray flowers each produce 
different types of seeds (heterocarpy) which is correlated to 
differential germination responses (Tanowitz et al. 1987).
    Most Deinandra conjugens occurrences are closely associated with 
particular soils, vegetation types, and elevation range within 
southwestern San Diego County, California, and northwestern Baja 
California, Mexico. The majority of D. conjugens occurrences are 
associated with clay soils and with grasslands (native, non-native, and 
mixed), coastal sage scrub, or maritime succulent scrub. Current 
information indicates that D. conjugens has a narrow geographic and 
elevation range based on information from herbarium records at the San 
Diego Natural History Museum (SDNHM) and CNDDB (2000) records.
    Deinandra conjugens is strongly correlated with clay soils, 
subsoils, or lenses (Bauder and Truesdale 2000). Clay soils are heavy 
(dense) soils with small particles. Such soils typically support 
grasslands, but may support some woody vegetation. Much of the area 
with clay soils and subsoils within the historical range of D. 
conjugens likely was once vegetated with native grassland and open 
coastal sage scrub and maritime succulent scrub, which provided 
suitable habitat for D. conjugens. Based on our Geographic Information 
System (GIS) analysis, most current and historical D. conjugens 
occurrences (92 percent) are found on clay soils or lenses in one of 
the following soil types: Diablo clay, Olivenhain cobbly loam, Linne 
clay loam, Salinas clay loam, Huerhuero loam, Diablo-Olivenhain 
complex, Stockpen gravelly clay, and San Miguel-Exchequer rocky silt 
loams.
    Deinandra conjugens is also strongly associated with particular 
vegetation types. The species is found in vegetation

[[Page 32053]]

communities classified as, but not limited to, grasslands (native, non-
native, and mixed), open coastal sage scrub, maritime succulent scrub, 
and the margins of some disturbed sites and cultivated fields 
(California Natural Diversity Data Base (CNDDB) 2000; Keck 1959; Keil 
1993; Skinner and Pavlik 1994; David Hogan, San Diego Biodiversity 
Project, in litt. 1990; Bruce Baldwin, Jepson Herbarium, pers. comm. 
2001; Mark Dodero, RECON, pers. comm. 2001; Scott McMillan, McMillan 
Biological Consulting, pers. comm. 2001). Plant species common to these 
vegetation communities include Nassella spp. (needlegrass), Bloomeria 
crocea (common goldenstar), Dichelostemma pulchella (blue dicks), 
Chlorogalum spp. (soap plant), Bromus spp. (brome grass), Avena spp. 
(oats), Deinandra fasciculata (fasciculated tarweed), Lasthenia 
californica (common goldfields), Artemisia californica (California 
sagebrush), Eriogonum fasciculatum (flat-top buckwheat), Lotus 
scoparius (deer weed), Salvia spp. (sage), Mimulus aurantiacus (bush 
monkeyflower), Malacothamnus fasciculatum (bushmallow), Malosma laurina 
(laurel sumac), Rhus ovata (sugar bush), R. integrifolia (lemonade 
berry), Lycium spp. (boxthorn), Euphorbia misera (cliff spurge), 
Simmondsia chinensis (jojoba), Opuntia spp. (prickly pear and cholla 
cactuses), Ferocactus viridescens (coastal barrel cactus), Ambrosia 
chenopodiifolia (San Diego bur sage), and Dudleya spp. (live-forevers).
    Based on information from herbarium records at the San Diego 
Natural History Museum (SDNHM) and CNDDB (2000) records, Deinandra 
conjugens has a narrow geographic distribution. Additional information 
since the listing indicates that the historical range for D. conjugens 
in San Diego County, California, is from the Mexican border north to 
Spring Valley and Paradise Valley, a distance of about 24 kilometers 
(km) (15 miles (mi)), and from Interstate 805 east to Otay Lakes 
Reservoir, a distance of about 13 km (8 mi). Further, based on these 
museum and database records, the elevational range for D. conjugens 
appears to be between 25 and 300 meters (m) (80 and 1000 feet (ft)). 
Because other Deinandra species have been documented outside of these 
elevations and geographic distributions, during the same time periods, 
but absent D. conjugens, we believe these to be the elevation and range 
limits for this species in the United States.
    Typically, Deinandra conjugens and other tarplants cannot produce 
viable seeds without cross pollinating with other individuals (i.e. are 
extremely self-incompatible) (Keck 1959; Tanowitz 1982; B. Baldwin, in 
litt. 2001). Gene flow is important for the long-term survival of self-
incompatible species (Ellstrand 1992) such as through pollination. Gene 
flow in D. conjugens is essentially achieved through pollen movement 
among populations. The movement of pollen likely occurs over short 
distances because most of the insects that visit Deinandra are 
relatively localized and generally travel less than 0.5 km (0.3 mi) at 
one time. Because small inter-population occurrences of D. conjugens 
may facilitate greater gene flow, this conservation may be critical to 
maintaining genetic diversity in D. conjugens. Pollinators of D. 
conjugens include, but are not limited to, bee flies (Bombylliidae); 
hover flies (Syrphidae); digger, carpenter, and cuckoo bees 
(Anthophoridae); and metallic bees (Halictidae) (Krombein et al. 1979; 
M. Dodero, pers. comm. 2001). The following bee species have been 
documented visiting Deinandra species: Nomia melanderi, Colletes 
angelicus, Nomadopsis helianthi, Ventralis claypolei ausralior, 
Anthidiellum notatum robertsoni, Heriades occidentalis, Anthocopa 
hemizoniae, Ashmeadiella californica californica, Svastra sabinensis 
nubila, Melissodes tessellata, M. moorei, M. personatella, M. 
robustior, M. semilupina, M. lupina, M. stearnsi, Anthophora urbana 
urbana, and A. curta curta (Krombein et al. 1979).
    Deinandra conjugens fruits are each one-seeded and are likely to be 
dispersed by small to large-sized mammals and birds based on the sticky 
nature of the remaining flower parts that are attached to the fruits 
and the discontinuous distribution of other tarplants (B. Baldwin, in 
litt. 2001; M. Dodero, pers. comm. 2001; Elizabeth Friar, Claremont 
Graduate University, pers. comm. 2001; Gjon Hazard, U. S. Fish and 
Wildlife Service (Service), pers. comm. 2001). Likely seed/fruit 
dispersal organisms include, but are not limited to, mule deer 
(Odocoileus hemionus), gray foxes (Urocyon cinereoargenteus), coyotes 
(Canis latrans), black-tailed jackrabbits (Lepus californicus 
bennettii), bobcats (Felis rufus), striped skunks (Mephitis mephitis), 
opossums (Didelphis virginiana), racoons (Procyon lotor), and small 
land birds.
    The Deinandra conjugens seed bank (a reserve of dormant seeds, 
generally found in the soil) is important for its year-to-year and 
long-term survival (Given 1994, Rice 1989). A seed bank includes all of 
the seeds in a population and generally covers a larger area than the 
extent of observable plants seen in a given year. The number and 
location of standing plants in a population varies annually due to a 
number of factors, including the amount and timing of rainfall, 
temperature, soil conditions, and the extent and nature of the seed 
bank. Large annual fluctuations in the number of standing plants in a 
given site have been documented. Population size has ranged from 1 to 
over 5,400 standing plants at a site on northwest Otay Mesa (CNDDB 
2000; City of San Diego, in litt. 1999), from approximately 100 to 
50,000 in a site in Rice Canyon (CNDDB 2000), and from approximately 
280,000 to 1.9 million at San Miguel Ranch South (CNDDB 2000; Merkel & 
Associates, in litt. 1999). In any given year, the observable plants in 
a population are only the portion of the individuals from the seed bank 
that germinated that year. These annual fluctuations make it look as 
though a population of annual plants ``moves'' from year to year, when 
in actuality, a different portion of a population germinates and 
flowers each year. The occurrence and spatial distribution of a 
standing population of plants is generally the result of the occurrence 
and spatial distribution of the micro-environmental conditions 
conducive to the germination of the seeds and growth of the plants 
within the seed bank of a population.
    Determining the size/magnitude of a given Deinandra conjugens 
population is difficult due to the major fluctuations that have been 
documented in known sites (CNDDB 2000; Merkel & Associates, in litt. 
1999). Conditions during some years are better for growth and 
reproduction of D. conjugens in some populations (and even some 
portions of a population) than other years. Because the number of 
standing plants in a given population can vary by orders of magnitude 
from one year to the next, the number of standing plants observed in a 
population in any one year does not indicate the magnitude of that 
population.
    The largest number of Deinandra conjugens plants were recorded in 
1998 when it was estimated that there were over 2 million individuals 
for the species as a whole (CNDDB 2000; Merkel & Associates, in litt. 
1999). However, the number of standing plants in most years is probably 
considerably fewer. To demonstrate this variability, the species was 
thought to be extinct as a result of extensive development within its 
range until its rediscovery in Estado de Baja California, Mexico in 
1977 (Tanowitz 1978). Conversely, the largest population (Rancho San 
Miguel) supported about 1.9 million plants

[[Page 32054]]

during 1998 when southern California experienced El Nino weather 
conditions, which resulted in a particularly wet and prolonged growing 
season (Merkel & Associates, in litt. 1999).
    In 1998, the five largest populations of Deinandra conjugens 
(Rancho San Miguel, Rice Canyon, Dennery Canyon, Poggi Canyon, and 
Proctor Valley) were known to support about 98 percent of all reported 
standing plants (CNDDB 2000; San Diego Gas and Electric 1995; Roberts 
1997; Merkel & Associates, in litt. 1999; Sandra Morey, California 
Department of Fish and Game (CDFG), in litt. 1994; Ogden Environmental 
1992; Brenda Stone, California Department of Transportation, in litt. 
1994) with each reportedly containing more than 10,000 standing plants. 
Of the remaining populations, 8 are reported to support from 1,000 to 
8,000 plants each; 9 are reported to support fewer than 1,000 plants 
each; and 3 are considered to be extirpated (CNDDB 2000). These 
populations occur on Federal, local, and private lands (CNDDB 2000).
    The smaller populations of Deinandra conjugens are essential to the 
survival and conservation of the species because they are strategically 
located between larger populations and facilitate gene flow among them. 
Gene flow has been demonstrated to reduce local and global extinction 
rates in a number of species (Hanski 1998; B. Baldwin, in litt. 2001). 
Processes such as mutation, genetic migration, and random genetic drift 
are known to adversely affect small populations (Barrett and Kohn 
1991). Adverse effects from these processes on D. conjugens are 
magnified by its self-incompatibility (Keck 1959; Tanowitz 1982; B. 
Baldwin, in litt. 2001). Maintaining gene flow among the populations is 
essential to counter the adverse effects from the processes mentioned 
above, and to ensure the long-term survival and conservation of this 
species.
    Deinandra conjugens has a limited distribution consisting of at 
least 25 historical populations near Otay Mesa in southern San Diego 
County and one population near the United States border in Baja 
California, Mexico (CDFG 1994; Roberts 1997; CNDDB 2000; Reiser 1996; 
herbarium records at the SDNHM; S. Morey, in litt. 1994). Three of the 
25 historic localities of D. conjugens in the United States are 
considered to be extirpated (CNDDB 2000; D. Hogan, in litt. 1990; S. 
Morey, in litt. 1994). At the time the species was listed in 1998, we 
estimated that 70 percent of the suitable habitat for this species 
within its known range had been lost to development or agriculture (63 
FR 54938). Since the listing, additional habitat has been lost to 
development (e.g., urban, commercial, industrial, residential) and 
agriculture (e.g., grazing, farming).
    Deinandra conjugens appears to tolerate mild levels of disturbance 
such as light grazing (D. Hogan, in litt. 1990; Barry Tanowitz, 
University of California, in litt. 1977). Such mild disturbances may 
create sites conducive to germination (B. Tanowitz, in litt. 1977). 
However, the species is otherwise threatened by urbanization and 
related activities, intensive agriculture, and the invasion of non-
native species which may result in significant disturbance to 
populations (63 FR 54938). Because of these threats, we anticipate that 
intensive long-term monitoring and management will be needed to 
conserve this species.
    At the time the species was listed in 1998, we estimated that about 
11,930 ha (30,310 ac) of land with clay soils or clay subsoils were 
within the general range of Deinandra conjugens in San Diego County, 
California (63 FR 54938). Also at that time, about 4,200 ha (10,600 ac) 
(about 37 percent) of this area had been urbanized and about 4,155 ha 
(10,555 ac) (about 37 percent) had been heavily cultivated and grazed 
(63 FR 54938). Additional areas have been lost to urbanization since 
this time. New information from herbarium records at the SDNHM 
indicates that the historic range of D. conjugens extended further to 
the north and northwest. Most of the habitat in this additional area 
has already been lost to development. Much of the cultivated and grazed 
lands in this range could be restored to support D. conjugens, which 
can grow in the margins of cultivated fields (S. McMillan, pers. comm. 
2001; M. Dodero, pers. comm. 2001). However, most of these lands will 
likely be unavailable for the species because of proposed land use (FWS 
GIS database 2001 which includes coverages from San Diego Association 
of Governments).

Previous Federal Action

    On December 15, 1980, we published a Notice of Review of plants 
which included Deinandra conjugens as a category 1 candidate taxon (45 
FR 82480). Category 1 taxa were those taxa for which substantial 
information on biological vulnerability and threats are available to 
support preparation of listing proposals. On November 28, 1983, we 
published a supplement to the 1980 Notice of Review that treated D. 
conjugens as category 2 candidate taxa (48 FR 53640). Category 2 
candidates were taxa for which data in our possession indicated listing 
was possibly appropriate but for which substantial information on 
biological vulnerability and threats were not known or on file to 
support preparation of proposed rules.
    On December 14, 1990, we received a petition dated December 5, 
1990, from Mr. David Hogan of the San Diego Biodiversity Project, to 
list Deinandra conjugens as endangered. The petition also requested 
designation of critical habitat. Because D. conjugens was included in 
the Smithsonian Institution's Report of 1975, designated as House 
Document No. 94-51, that had been accepted as a petition, we regarded 
Mr. Hogan's petition to list this taxon as a second petition. We 
ultimately responded to the petitions by publishing a proposed rule to 
list D. conjugens as endangered on August 9, 1995 (60 FR 40549). On 
October 13, 1998, we published a final rule listing D. conjugens as 
threatened (63 FR 54938). At that time, we indicated that designation 
of critical habitat was not prudent.
    On July 15, 1999, the California Native Plant Society (CNPS) and 
Southwest Center for Biological Diversity (SWCBD) filed a lawsuit in 
Federal District Court for the Southern District of California, in 
part, challenging our decision not to designate critical habitat for 
Deinandra conjugens (California Native Plant Society; et al. v. 
Babbitt, et al., 99CV1454 L (S.D.Cal.). On December 21, 2000, we 
entered into a stipulated settlement agreement with the plaintiffs 
under which we agreed to reevaluate the prudency determination for D. 
conjugens. Under the settlement agreement, if we determine that 
critical habitat is prudent, we are to publish in the Federal Register 
a proposed rule to designate critical habitat by June 5, 2001, with a 
final determination to be completed by May 30, 2002. This proposed 
critical habitat determination is consistent with this stipulated 
settlement agreement.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(I) the 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the

[[Page 32055]]

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 
with regard to actions carried out, funded, permitted, or authorized by 
a Federal agency. Section 7 also requires conferences on Federal 
actions that are likely to result in the destruction or adverse 
modification of proposed critical habitat. In our regulations at 50 CFR 
402.02, we define destruction or adverse modification as ``a direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' 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 lack a Federal 
nexus, critical habitat designation would not afford any additional 
protections under the Act with respect to 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, to the 
extent such habitat is determinable, at the time of listing. 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 a 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 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions 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 should, at a minimum, be the listing package for 
the species. Additional information may be obtained from a recovery 
plan, articles in peer-reviewed journals, conservation plans developed 
by States and counties, scientific status surveys and studies, 
biological assessments, unpublished materials, and expert opinion.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that 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 section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Prudency Determination

    Section 4(a)(3) of the Act, as amended, and implementing 
regulations (50 CFR 424.12) require that, to the maximum extent prudent 
and determinable, we designate critical habitat at the time the species 
is determined to be endangered or threatened. At the time of the final 
listing determination (63 FR 54938), we concluded that designation of 
critical habitat for Deinandra conjugens was not prudent because such 
designation would not benefit the species. Our regulations (50 CFR 
424.12(a)(1)) state that designation of critical habitat is not prudent 
when one or both of the following situations exist--(1) The species is 
threatened by taking or other human activity, and identification of 
critical habitat can be expected to increase the degree of such threat 
to the species, or (2) such designation of critical habitat would not 
be beneficial to the species.
    In our final rule, we concluded that the designation of critical 
habitat for Deinandra conjugens was not prudent, explaining that such 
designation would not benefit the species because it occurs primarily 
on private lands with little or no Federal involvement (63 FR 54954).
    We now conclude that there may be some additional benefits to 
designating critical habitat. While a critical habitat designation for 
habitat currently occupied by this species would not likely change the 
section 7 consultation because an action that destroys or adversely 
modifies such critical habitat would also be likely to result in 
jeopardy to the species, there may be instances where section 7 
consultation

[[Page 32056]]

would be triggered only if critical habitat is designated (for example, 
if we designated unoccupied habitat, or if occupied habitat became 
unoccupied in the future).
    There may also be some educational or informational benefits to 
designating critical habitat. Critical habitat may be used as a tool to 
help identify areas within the range of Deinandra conjugens essential 
for the conservation of the species. For example, designation of 
critical habitat on non-Federal lands may provide some educational 
benefit by formally identifying on a range-wide basis those areas 
essential to the conservation of the species and, thus, areas that are 
likely to be the focus of recovery efforts for D. conjugens.
    In addition, three significant occurrences of Deinandra conjugens 
now occur on Federal lands, two on the Otay-Sweetwater Unit of the San 
Diego National Wildlife Refuge (SDNWR) and one on Brown Field, which is 
under the authority of the Immigration and Naturalization Service-
Border Patrol (INS). The land that contains the two occurrences on 
SDNWR was acquired after the species was listed and the occurrence on 
the INS site was only known as a point locality, but was determined to 
be much more extensive (with more than 5,000 standing plants) after the 
species was listed.
    Based on our discussion above, we now conclude that there may be 
some additional benefits to designating critical habitat on lands 
essential for the conservation of Deinandra conjugens. Therefore, it is 
prudent to propose the designation of critical habitat for D. 
conjugens.

Methods

    In determining areas that are essential to conserve Deinandra 
conjugens, we used the best scientific data available. We reviewed 
available information that pertains to the habitat requirements of this 
species, including data from research and survey observations published 
in peer-reviewed articles; regional GIS coverages (e.g., soils, known 
locations, vegetation, land ownership, and habitat conservation plan 
(HCP) boundaries); information from herbarium collections such as from 
SDNHM; data from the CNDDB (2000); data collected from project-specific 
and other miscellaneous reports submitted to us; additional data from 
the San Diego County Multiple Species Conservation Program (MSCP), such 
as information from various Subarea or draft Subarea Plans (e.g., City 
of San Diego, County of San Diego, City of La Mesa, and City of Chula 
Vista); information in the San Diego Gas and Electric HCP (1995); and a 
habitat evaluation model for the Otay Mesa Generating Project.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we must consider those physical and biological features 
(primary constituent elements) that are essential to the conservation 
of the species, and that may require special management considerations 
or protection. These include, but are not limited to: space for 
individual and population growth, and for normal behavior; food, water, 
air, light, minerals, or other nutritional or physiological 
requirements; cover or shelter; sites for breeding, reproduction, 
rearing of offspring; and habitats that are protected from disturbance 
or are representative of the historic geographical and ecological 
distributions of a species. All areas proposed as critical habitat for 
Deinandra conjugens are within the historical range and contain one or 
more of these physical or biological features (primary constituent 
elements) essential for the conservation of the species.
    The proposed critical habitat is designed to provide sufficient 
habitat to maintain self-sustaining populations of Deinandra conjugens 
throughout its range, and provide those habitat components essential 
for the conservation of the species. Habitat components that are 
essential for D. conjugens are found in vegetation communities 
classified as, but not limited to, grasslands (native, non-native, and 
mixed), coastal sage scrub, or maritime succulent scrub in southwestern 
San Diego County, California. These habitat components provide for: (1) 
Individual and population growth, including sites for germination, 
pollination, reproduction, pollen and seed dispersal, and seed 
dormancy; (2) areas that allow gene flow and provide connectivity or 
linkage between or within larger populations, including open spaces and 
disturbed areas that in some instances may also contain introduced 
plant species; (3) areas that provide basic requirements for growth 
such as water, light, minerals (i.e., watersheds); and (4) areas that 
support populations of pollinators and seed dispersal organisms.
    The long-term survival and conservation of Deinandra conjugens is 
dependent upon a number of factors, including the protection and 
management of existing population sites, the protection of inter-
population occurrences, the maintenance of normal ecological functions 
within these sites, the preservation of the connectivity between sites 
to maintain the natural order of gene flow between sites through 
pollinator activity and seed dispersal mechanisms, the protection and 
maintenance of sites for the survival of pollinators and seed dispersal 
agents, and the preservation of suitable micro-habitat sites that could 
be recolonized and allow a population to survive a catastrophic event. 
The small fragmented range of this species, coupled with its breeding 
system (i.e., its self-incompatibility and annual nature), makes it 
especially vulnerable to natural and anthropogenic effects including 
disturbance from human and agricultural activities; spread of non-
native species; and nearby use of herbicides, pesticides, and other 
contaminants (63 FR 54938; B. Baldwin, pers. comm. 2001; S. McMillan, 
pers. comm. 2001).
    Based on our current knowledge of this species, the primary 
constituent elements of Deinandra conjugens critical habitat consist 
of, but are not limited to:
    (1) soils with a high clay content (generally >25 percent) (or clay 
intrusions or lenses) that are associated with grasslands (native, non-
native, and mixed), open coastal sage scrub, or maritime succulent 
scrub communities between 25 m (80 ft) and 300 m (1000 ft) elevation; 
and
    (2) plant communities associated with Deinandra conjugens which 
include, but are not limited to grasslands (native, non-native, and 
mixed), open coastal sage scrub, and maritime succulent scrub between 
25 and 300 m (80 and 1,000 ft) elevation in southwestern San Diego 
County, California. Species common to these communities include 
Nassella spp. (needlegrasses), Bloomeria crocea (common goldenstar), 
Dichelostemma pulchella (blue dicks), Chlorogalum spp. (soap plants), 
Bromus spp. (brome grasses), Avena spp. (oats), Deinandra fasciculata 
(fascicled tarweed), Lasthenia californica (common goldfields), 
Artemisia californica (California sagebrush), Eriogonum fasciculatum 
(flat-top buckwheat), Lotus scoparius (deer weed), Salvia spp.(sages), 
Mimulus aurantiacus (bush monkeyflower), Malacothamnus fasciculatum 
(bushmallow), Malosma laurina (laurel sumac), Rhus ovata (sugar bush), 
R. integrifolia (lemonade berry), Lycium spp. (boxthorns), Euphorbia 
misera (cliff spurge), Simmondsia chinensis (jojoba), Opuntia spp. 
(prickly pear and cholla cactuses), Ferocactus viridescens (coastal 
barrel cactus), Ambrosia chenopodiifolia (San Diego bur sage),

[[Page 32057]]

and Dudleya spp. (live-forevers). These plant communities contain 
natural openings that provide nesting, foraging, and dispersal sites 
for D. conjugens pollen and seed dispersal agents. These openings may 
have soil inclusions that contain a significantly higher concentration 
of sandy soils than the adjacent clay soils.

Criteria Used To Identify Critical Habitat

    In our proposed delineation of critical habitat for Deinandra 
conjugens, we selected areas essential to the conservation of the 
species from within its known historical range. We used data from 
documented occurrences, various GIS layers, and recent aerial 
photography. These data include D. conjugens locations, soils, 
vegetation, elevation, topography, and current land uses.
    We began by using the GIS layers to identify areas of suitable 
habitat within the geographic distribution of this species. We selected 
areas with appropriate soils and vegetation that are limited to the 
elevational range of the species within its known distribution. We then 
selected soils and plant communities that overlapped known Deinandra 
conjugens occurrences. Areas occupied by D. conjugens can not be 
determined accurately either by cursory field examination or by the 
limited data from historic observations. The entire population of an 
annual plant (which includes all of the seeds in the subterranean seed 
bank and the observable plants above ground) is not visible at any one 
time. The entire seed bank does not germinate at once, and the visible 
population of plants rarely reflects the extent of the seed bank. There 
may be no visible evidence of a plant population for a year or even a 
span of several years, until local climatic and other conditions are 
suitable for seed germination. The extent and distribution of the 
observable plant population may move, shrink, or grow as conditions 
change, without a similar change in the distribution of the seed bank. 
As a result, the mapping of D. conjugens occurrences has been variable, 
depending both on the scale of the mapping and the year in which the 
surveys were conducted (documented examples include records ranging 
from one to more than 5,400 plants for one population, from about 100 
to 50,000 in another, and from 280,000 to 1.9 million plants in another 
population). In the closely related Holocarpha macradenia (Santa Cruz 
tarplant), seemingly unoccupied habitat has been determined to contain 
a viable seed bank where standing plants have not been seen in over 7 
years (Bainbridge, in litt. 1999). By overlapping known occurences of 
D. conjugens with appropriate soil types, elevations, and other habitat 
characteristics, we have included what we believe is the likely 
distribution of the seed bank around known historical occurrences of D. 
conjugens.
    We then eliminated areas that did not contain both appropriate 
soils and appropriate vegetation such as, but not limited to, currently 
used agriculture fields, housing developments, and open water. Next, we 
eliminated all areas above 300 m (1000 ft) elevation, the upper limit 
of the known distribution of D. conjugens, based on herbarium records. 
We also compared the remaining areas of suitable D. conjugens habitat 
with recent project information and aerial photography so we did not 
include areas that have recently been developed or had negative surveys 
for D. conjugens.
    We conducted this analysis to facilitate delineating suitable 
habitat containing the primary constituent elements. The long-term 
survival and conservation of D. conjugens is dependent upon the 
protection and management of existing occurrences, including the seed 
bank, and the maintenance of ecological functions within these areas, 
including connectivity within and among sites to allow effective 
pollinator activity and seed dispersal.
    The boundaries of proposed critical habitat for Deinandra 
conjugens, shown on the attached maps and defined in the legal 
description, are based on a 100-meter Universal Transverse Mercator 
(UTM) grid, boundaries that have been legally described for the City of 
Chula Vista's draft preserve design for their draft MSCP Subarea Plan 
and the County of San Diego's major and minor amendment areas for their 
MSCP Subarea Plan, Sweetwater Authority lands (a water district in San 
Diego County), Otay Water District lands, Federal lands (e.g., INS, 
SDNWR), and Trust for Public Lands property. This grid was overlaid on 
those areas determined to be essential and indicated by the D. 
conjugens habitat analysis where we did not have legal descriptions for 
boundaries.
    As we discuss in detail below (see ``Relationship To Habitat 
Conservation Plans and Other Planning Efforts''), lands that are 
covered by an existing, legally operative, HCP with an operative 
implementing agreement (IA) in which Deinandra conjugens is a covered 
species are not being proposed for designation as critical habitat and 
have not been included in the mapped areas because the benefits of 
exclusion outweigh the benefits of inclusion pursuant to section 
4(b)(2) of the Act. Areas excluded based on this criterion include 
lands within the MSCP for the County and City of San Diego, with the 
exception of those lands within the major and minor amendment areas, 
where the impacts to and conservation of D. conjugens have not been 
addressed. Apart from the lands with operative HCPs, the majority of 
the remaining occupied habitat for D. conjugens falls within designated 
or draft preserve areas within the MSCP.
    In defining critical habitat boundaries, we made an effort to 
exclude all developed areas, such as towns or housing developments, and 
lands unlikely to contain the primary constituent elements essential 
for conservation of Deinandra conjugens. Our 100-m UTM grid minimum 
mapping unit was designed to minimize the amount of development along 
the urban edge included in our designation. Lands containing existing 
features and structures, such as buildings, roads, railroads, urban 
development, and other similar developed features that do not contain 
primary constituent elements, are not considered critical habitat and 
are not proposed as critical habitat. Federal actions limited to those 
areas would not trigger a section 7 consultation, unless they affect 
the species and/or primary constituent elements in adjacent critical 
habitat.
    The proposed critical habitat units described below constitute our 
best assessment of areas that are essential for the species' 
conservation. We anticipate that in the time between the proposed rule 
and the final rule, and based upon the additional information received 
during the public comment period and field surveys, that the boundaries 
of the mapping units may be refined.

Critical Habitat Proposal

    The approximate area encompassing the proposed designation of 
critical habitat by county and land ownership is shown in Table 1.

[[Page 32058]]



                       Table 1.--Approximate Proposed Critical Habitat in Hectares (ha) (Acres (ac)) by County and Land Ownership
                         [Area estimates reflect critical habitat unit boundaries, not primary constituent elements within \1\]
--------------------------------------------------------------------------------------------------------------------------------------------------------
             County                        Federal \2\                   State/Local                     Private                        Total
--------------------------------------------------------------------------------------------------------------------------------------------------------
San Diego.......................  625 ha (1,545 ac)...........  590 ha (1,455 ac)...........  1,470 ha (3,630 ac).........  2,685 ha (6,630 ac)
      Total.....................  625 ha (1,545 ac)...........  590 ha (1,455 ac)...........  1,470 ha (3,630 ac).........  2,685 ha (6,630 ac)
                                 -----------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Approximate hectares have been converted to acres (1 ha = 2.47 ac). Based on the level of imprecision of mapping at this scale, approximate hectares
  and acres have been rounded to the nearest 5.
\2\ Federal lands include the Service and INS lands.

    Critical habitat includes habitat throughout the species' current 
range in the United States (San Diego County, California). Lands 
proposed are under Federal, State, local, and private ownership. 
Federal lands include areas owned or managed by the Service and INS. 
Lands proposed as critical habitat have been divided into three 
critical habitat units. We are proposing to designate critical habitat 
on lands that are considered essential to the conservation of Deinandra 
conjugens. Each of the critical habitat units for D. conjugens is 
considered to be occupied by either seeds as part of the seed bank or 
standing plants. A brief description of each unit, and reasons for 
proposing to designate it as critical habitat, are presented below.

Unit 1: Sweetwater/Proctor Valley Unit

    The Sweetwater/Proctor Valley Unit encompasses approximately 1,565 
ha (3,865 ac) at the northeastern limit of this species' distribution. 
This unit is south and east of State Route 54, south and west of State 
Route 94, and north of Upper Otay Reservoir. It includes portions of 
the Otay/Sweetwater Unit of SDNWR; lands belonging to the Sweetwater 
Authority around the Sweetwater Reservoir; lands belonging to the Otay 
Water District; lands that are proposed as preserve under the City of 
Chula Vista's Subarea Plan; portions of two project areas within the 
City of Chula Vista's Subarea Plan, but outside of the proposed 
preserve lands; and lands that are within major and minor amendment 
areas within the County of San Diego's Subarea Plan. Two areas in this 
unit have not been proposed as critical habitat, including the 
alignment for State Route 125 south and the San Diego County Park 
campground realignment and expansion because these areas have been 
analyzed and determined not to be essential.
    This unit contains several large populations of Deinandra 
conjugens, including a portion of the Rancho San Miguel population 
estimated to contain approximately 855,000 standing D. conjugens plants 
during the 1995 and 1998 growing seasons (CNDDB 2000; Merkel & 
Associates, in litt. 1999). The Rolling Hills population, which had 
approximately 27,000 standing plants in the 2000 growing season 
(Stephen Neudecker, Helix Environmental Planning, Inc., in litt. 2001), 
and the Proctor Valley population, which had approximately 10,000 
standing plants in the 1990 growing season (CNDDB 2000), are also 
included. This unit also contains an area on the north side of the 
Sweetwater Reservoir where reports indicate there are approximately 
2,000 standing plants (Roberts 1997), and an area on the north portion 
of the SDNWR that had approximately 2,000 standing plants in 1993 
(CNDDB 2000). Additionally, there are a number of new occurrences in 
this unit between the populations that were documented since the 
species was listed in 1998. These newly discovered ``inter-population'' 
occurrences provide genetic connectivity throughout this unit and among 
the Deinandra conjugens populations. One of these newly discovered 
occurrences had approximately 1,000 standing plants in 2000 (S. 
McMillan, in litt. 2001) and another had over 27,000 standing plants 
(S. Neudecker, in litt. 2001).
    This unit contains multiple large Deinandra conjugens populations 
that are capable of producing large numbers of individuals in good 
years, which is important for this species to survive through a variety 
of natural and environmental changes, as well as stochastic (random) 
events. This unit contains populations in the north and eastern 
portions of this species' distribution which may be important for its 
long-term survival and conservation. The populations in this unit can 
maintain genetic connectivity within and among themselves, and they may 
maintain genetic connectivity with the Otay Valley/Big Murphy's Unit. 
Therefore, the populations in this unit are essential to the survival 
and conservation of the species.

Unit 2: Chula Vista Unit

    The Chula Vista Unit encompasses approximately 210 ha (515 ac) at 
the western portion of this plant's range. Most of the occurrences and 
populations in this unit are found in the remaining habitat patches 
along canyon edges that were not optimum for urbanization. This unit 
contains lands that are proposed as preserve under the City of Chula 
Vista's Subarea Plan, lands that are in a minor amendment area under 
the County of San Diego's Subarea Plan, or lands that are in a minor 
amendment area under the City of Chula Vista's Subarea Plan.
    This unit contains the Rice Canyon population, which had more than 
50,000 standing plants in 1994 (CNDDB 2000), and portions of 
(occurrences within) the Poggi Canyon population that had a reported 
10,000 standing plants in 1990 (CNDDB 2000). This unit contains 
populations in the western portion of this species' distribution which 
though currently isolated from each other may contain significant 
amounts of genetic diversity and are, therefore, essential to the 
survival and conservation of the species. Peripheral populations may 
have genetic characteristics essential to overall long-term 
conservation of the species (i.e. they may be genetically different 
than more central populations) (Lesica and Allendorf, 1995).

Unit 3: Otay Valley/Big Murphy's Unit

    The Otay Valley/Big Murphy's Unit encompasses approximately 910 ha 
(2,249 ac). It is east of Interstate 805, north of the International 
Boundary between the United States and Mexico on the east side, north 
of State Route 905 on the west side, west of Otay Mountain, and along 
the north rim of Otay Valley including Salt Creek and Wolf Canyon. This 
unit includes lands owned by INS, lands that are proposed as preserve 
under the City of Chula Vista's Subarea Plan, and lands that are in 
major and minor amendment areas in the County of San Diego's Subarea 
Plan. Areas in this unit that are within the alignment for State Route 
125 south

[[Page 32059]]

have not been proposed as critical habitat because these areas have 
been analyzed and determined not to be essential.
    This unit contains several large populations of Deinandra conjugens 
that are capable of producing large numbers of individuals in good 
years which are important for this plant to survive through a variety 
of natural and environmental changes as well as stochastic events. It 
also contains the Otay River Valley population which was reported to 
have approximately 4,000 standing plants (Roberts 1997), the Wolf 
Canyon population which was reported to have approximately 4,000 
standing plants (Roberts 1997), the Brown Field population which had a 
reported 5,600 individuals in 1998 (U.S. Army Corps of Engineers 
(Corps) 2000), and the upper Salt Creek population which was reported 
to have over 1,000 standing plants (Roberts 1997).
    Unit 3 contains populations in the southern and eastern portions of 
this species' distribution, which may be important for its long-term 
survival and conservation. One population in this unit is located at 
the southwest edge of this species' range in the United States. This 
population may have connectivity with Deinandra conjugens populations 
in northwestern Baja California, Mexico. Because this population is at 
the extreme southwest portion of this species' range in the United 
States, it may contain important genes that are not found in other 
populations.
    Based on the proposed preserve design for the City of Chula Vista's 
Subarea Plan, and the designated preserve designs for the City and 
County of San Diego HCPs, these populations may all retain connectivity 
among themselves because the habitat mosaic does not have large gaps. 
The occurrences in this unit may also provide and receive pollen or 
fruits from Deinandra conjugens populations in the Sweetwater/Proctor 
Valley Unit.
    This connectivity will facilitate gene flow within this unit and 
among other units which, in turn, may allow evolutionary processes that 
affect Deinandra conjugnes to continue relatively unimpeded. 
Maintaining the D. conjugnes populations and their genetic connectivity 
(both within and among units) is essential to the survival and 
conservation of this species. A portion of the D. conjugnes population 
north of Otay Valley and west of Otay Lakes is located within proposed 
critical habitat, and a portion is located outside of proposed critical 
habitat in the proposed development area for the City of Chula Vista's 
Subarea Plan. This portion of the population may provide important 
genetic connectivity between the Salt Creek and Otay Valley 
populations.
    Because this unit contains a number of large Deinandra conjugnes 
populations, these populations will maintain genetic connectivity 
within and among themselves, they will maintain genetic connectivity 
with the Sweetwater/Proctor Valley Unit and possibly with plants in 
Mexico, and they may contain essential genetic diversity; therefore, 
the populations in this unit are essential to the survival and 
conservation of the species.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a) 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 designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) 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 action agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. We 
may issue a formal conference report, if requested by the Federal 
action agency. Formal conference reports include an opinion that is 
prepared according to 50 CFR 402.14, as if the species was listed or 
critical habitat designated. We may adopt the formal conference report 
as the biological opinion when the species is listed or critical 
habitat designated, if no substantial new information or changes in the 
action alter the content of the opinion (see 50 CFR 402.10(d)).
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation , 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 provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Activities on Federal lands that may affect Deinandra conjugens 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., from 
the Federal Highway Administration,

[[Page 32060]]

Federal Aviation Administration (FAA), or Federal Emergency Management 
Agency (FEMA)); permits from the Department of Housing and Urban 
Development (HUD); activities by INS on their land or land under their 
jurisdiction; activities funded by the U.S. Environmental Protection 
Agency (EPA), Department of Energy (DOE), or any other Federal agency; 
regulation of airport improvement activities by FAA; and construction 
of communication sites licensed by the Federal Communications 
Commission (FCC) 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 destroy or adversely modify critical 
habitat include those that appreciably reduce the value of critical 
habitat for both the survival and recovery of Deinandra conjugens. We 
note that such activities may also jeopardize the continued existence 
of the species. Activities that, when carried out, funded or authorized 
by a Federal agency, may directly or indirectly destroy or adversely 
modify critical habitat include, but are not limited to:
    (1) Removing, thinning, or destroying Deinandra conjugens habitat 
(as defined in the primary constituent elements discussion), whether by 
burning, mechanical, chemical, or other means (e.g., plowing, grubbing, 
grading, grazing, woodcutting, construction, road building, mining, 
herbicide application, etc.);
    (2) Activities that appreciably degrade or destroy Deinandra 
conjugens habitat (and its PCEs), including, but not limited to, 
livestock grazing, clearing, discing, farming, residential or 
commercial development, introducing or encouraging the spread of 
nonnative species, off-road vehicle use, and heavy recreational use;
    (3) Appreciably decreasing habitat value or quality through 
indirect effects (e.g., edge effects, invasion of exotic plants or 
animals, or fragmentation); and
    (4) Activities that alter watershed characteristics in ways that 
would appreciably alter or reduce the quality or quantity of surface 
and subsurface flow of water needed to maintain grassland, scrub, and 
chaparral communities. These activities could include, but are not 
limited to, maintaining an unnatural fire regime either through fire 
suppression or prescribed fires that are too frequent or poorly-timed; 
residential and commercial development, including road building and 
golf course installations; agricultural activities, including row crops 
and livestock grazing; and vegetation manipulation such as clearing or 
grubbing in the watershed upslope from D. conjugens.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Carlsbad 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 NE. 11th 
Ave., Portland, Oregon 97232 (telephone 503/231-2063; facsimile 503/
231-6243).
    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, and 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. Because we are designating areas 
that are occupied either by standing plants or the underground seedbank 
of Deinandra conjugens, and Federal agencies already consult with us on 
activities in areas where the species may be present to ensure that 
their actions do not jeopardize the continued existence of the species, 
the designation of critical habitat is not likely to result in a 
significant regulatory burden above that already in place due to the 
presence of the listed species. Actions on which Federal agencies 
consult with us include, but are not limited to:
    (1) Regulation of activities affecting waters of the U.S. by the 
Corps under section 404 of the Clean Water Act;
    (2) Regulation of water flows, damming, diversion, and 
channelization by Federal agencies;
    (3) Regulation of airport improvement activities by the FAA 
jurisdiction;
    (4) Road construction, right of way designation, or regulation of 
agricultural activities by Federal agencies;
    (5) Development on private lands requiring permits from other 
Federal agencies such as HUD;
    (6) Construction of communication sites licensed by the FCC;
    (7) Authorization of Federal grants or loans;
    (8) Construction of roads and fences along the International 
Boundary between the United States and Mexico, and other activities 
associated with immigration enforcement by the INS;
    (9) Activities funded by the EPA, DOE, or any other Federal agency; 
and
    (10) Hazard mitigation and post-disaster repairs funded by the 
FEMA.

Relationship to Habitat Conservation Plans and Other Planning Efforts

Exclusions Under Section 4(b)(2)
    Subsection 4(b)(2) of the Act allows us to exclude areas from 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
the extinction of the species. For the following reasons, we believe 
that, in most instances, the benefits of excluding HCPs for which 
Deinandra conjugens is a covered species from critical habitat 
designations will outweigh the benefits of including them.
(1) Benefits of Inclusion
    The benefits of including HCP lands in critical habitat are 
normally small. The principal benefit of any designated critical 
habitat is that activities in such habitat that may affect it require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. Where HCPs are in place, our experience indicates 
that this benefit is small or non-existent. Currently approved and 
permitted HCPs are already designed to ensure the long-term survival of 
covered species within the plan area. Where we have an approved HCP, 
lands that we ordinarily

[[Page 32061]]

would define as critical habitat for the covered species will normally 
be protected in reserves and other conservation lands by the terms of 
the HCPs and their IAs. These HCPs and IAs include management measures 
and protections for conservation lands that are crafted to protect, 
restore, and enhance their value as habitat for covered species.
    In addition, an HCP application must itself be consulted upon. 
While this consultation will not look specifically at the issue of 
adverse modification of critical habitat, unless critical habitat has 
already been designated within the proposed plan area, it will look at 
the very similar concept of jeopardy to the listed species in the plan 
area. Because HCPs, particularly large regional HCPs, address land use 
within the plan boundaries, habitat issues within the plan boundaries 
will have been thoroughly addressed in the HCP and the consultation on 
the HCP. Our experience is also that, under most circumstances, 
consultations under the jeopardy standard will reach the same result as 
consultations under the adverse modification standard. Implementing 
regulations (50 CFR part 402) define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
virtually identical terms. Jeopardize the continued existence of means 
to engage in an action ``that reasonably would be expected * * * to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' Destruction or adverse modification means an 
``alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus, actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species concerned, and the existence of a 
critical habitat designation does not materially affect the outcome of 
consultation. 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 (65 FR 35242) and the HCP No Surprises 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations which, in contrast to HCPs, often do not commit 
the project proponent to long term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits an HCP provides.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery and the creation of innovative solutions to conserve species 
while allowing for development. The educational benefits of critical 
habitat, including informing the public of areas that are important for 
the long-term survival and conservation of the species, are essentially 
the same as those that would occur from the public notice and comment 
procedures required to establish an HCP, as well as the public 
participation that occurs in the development of many regional HCPs. For 
these reasons, then, we believe that designation of critical habitat 
has little benefit in areas covered by HCPs.
(2) Benefits of Exclusion
    The benefits of excluding HCPs from being designated as critical 
habitat may be more significant. They include relieving landowners, 
communities and counties of any additional minor regulatory review that 
might be imposed by critical habitat. 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. Most regional plans benefit many species, both listed 
and unlisted. Imposing an additional regulatory review after HCP 
completion 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.
    A related 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 
significant. Weighing the small benefits of inclusion 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.
    Not all HCPs are alike with regard to species coverage and design. 
Within this general analytical framework, we need to evaluate completed 
and legally operative HCPs in which Deinandra conjugens is a covered 
species on a case-by-case basis to determine whether the benefits of 
excluding these particular areas outweigh the benefits of including 
them.

Section 4(b)(2)  Evaluation of Specific HCPs

    We expect that critical habitat may be used as a tool to identify 
those areas essential for the conservation of the species, and we will 
encourage development of HCPs for such areas on non-Federal lands. 
Habitat conservation plans currently under development are intended to 
provide for protection and management of habitat areas essential for 
the conservation of Deinandra conjugens, while directing development 
and habitat modification to nonessential areas of lower habitat value.
    Only HCPs within or adjacent to the boundaries of the proposed 
critical habitat units are discussed herein. Those approved and legally 
operative HCPs that provide coverage for Deinandra conjugens have been 
excluded from this proposed designation.
    We have worked with local jurisdictions to complete several HCPs 
that include areas where the species occurs. These HCPs include the San 
Diego Gas and Electric HCP and two Subarea Plans under the MSCP. Both 
the City of San Diego's Subarea Plan and the County of San Diego's 
Subarea Plan have received coverage for Deinandra conjugens. The San 
Diego MSCP encompasses approximately 236,000 ha (582,000 ac) of land in 
southwestern San Diego County, and involves multiple jurisdictions. 
Approximately 69,600 ha (172,000 ac) are targeted to be conserved 
within the preserve system. The Service and the California Department 
of Fish and Game approved the overall MSCP and the City of San

[[Page 32062]]

Diego's Subarea Plan in July 1997. The County of San Diego's plan was 
approved in 1998. San Diego Gas and Electric, which has easements 
throughout the MSCP, completed its plan in 1995.
    We find that the benefits of excluding lands covered by these HCPs 
would be significant in preserving positive relationships with our 
conservation partners, lessening potential additional regulatory review 
and potential economic burdens, reinforcing the regulatory assurances 
provided for in the implementing agreements for the approved HCPs, and 
providing for more established and cooperative partnerships for future 
conservation efforts.
    In summary, the benefits of including these approved HCPs in 
critical habitat for Deinandra conjugens include increased educational 
benefits and minor additional management protections and measures. The 
benefits of excluding these HCPs from designated critical habitat for 
D. conjugens include additional conservation measures for this and 
other listed species, preservation of partnerships that may lead to 
future conservation, and the avoidance of the minor regulatory and 
economic burdens associated with the designation of critical habitat. 
Therefore, we believe the benefits of exclusion outweigh the benefits 
of including these areas. Furthermore, we have determined that these 
exclusions will not result in the extinction of the species. We have 
already completed section 7 consultation on the impacts of these HCPs 
on the species. We determined that the approved HCPs will not 
jeopardize the continued existence of D. conjugens, which means that 
they will not appreciably reduce the likelihood of the survival and 
recovery of the species.
    The Sweetwater Authority is currently working on an HCP and the 
City of Chula Vista is expected to complete their HCP subarea planning 
processes in the near future. We have worked and continue to work 
closely with the City of Chula Vista on the design of their preserve, 
specifically in relation to the conservation of Deinandra conjugens. 
The City of Chula Vista's draft HCP proposes to conserve many of the 
large, essential D. conjugens populations, areas for connectivity 
within and among these populations, habitat to support pollinators and 
fruit dispersal agents, and includes criteria for conservation of D. 
conjugens within certain areas that have not yet been surveyed. The 
majority of the draft preserve contains clay soils and the appropriate 
vegetation types for D. conjugens.
    In the event that future HCPs, in addition to those under 
development by City of Chula Vista and Sweetwater Authority, covering 
Deinandra conjugens 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 D. conjugens by either directing development and 
habitat modification to nonessential areas or appropriately modifying 
activities within essential habitat areas so that such activities will 
not destroy or 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 D. conjugens. The process also enables us to conduct detailed 
evaluations of the importance of such lands to the long term survival 
of the species in the context of constructing a biologically configured 
system of interlinked habitat blocks. We fully expect that HCPs 
undertaken by local jurisdictions (e.g., counties, cities) and other 
parties will identify, protect, and provide appropriate management for 
those specific lands within the boundaries of the plans that are 
essential for the long-term conservation of the species. We believe and 
fully expect that our analyses of these proposed HCPs and proposed 
permits under section 7 will show that covered activities carried out 
in accordance with the provisions of the HCPs and biological opinions 
will not result in destruction or adverse modification of critical 
habitat.
    We will provide technical assistance and work closely with 
applicants with respect to HCPs currently under development and future 
HCPs to identify lands essential for the long-term conservation of 
Deinandra conjugens and appropriate management for those lands. The 
minimization and mitigation measures provided under these HCPs are 
expected to protect the essential habitat lands proposed as critical 
habitat in this rule. If an HCP that addresses D. conjugens as a 
covered species is ultimately approved, we will reassess the critical 
habitat boundaries in light of the HCP. We intend to undertake this 
review when the HCP is approved, but funding and priority constraints 
may influence the timing of such a review.
    Should additional information become available that changes our 
analysis of the benefits of excluding any of these (or other) areas 
compared to the benefits of including them in the critical habitat 
designation, we may revise this proposed designation accordingly. 
Similarly, if new information indicates any of these areas should not 
be included in the critical habitat designation because they no longer 
meet the definition of critical habitat, we may revise this proposed 
critical habitat designation.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species. We will conduct 
an analysis of the economic impacts of designating these areas as 
critical habitat prior to a final determination. When completed, we 
will announce the availability of the draft economic analysis with a 
notice in the Federal Register, and we will open a public comment 
period on the draft economic analyses and proposed rule at that time.

Public Comments Solicited

    We intend that any final action resulting from this proposal to be 
as accurate and effective as possible. Therefore, we solicit comments 
or suggestions from the public, other concerned governmental agencies, 
the scientific community, industry, or any other interested party 
concerning this proposed rule. We particularly seek comments 
concerning:
    (1) The reasons why any habitat should or should not be determined 
to be critical habitat as provided by section 4 of the Act, including 
whether the benefits of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of 
Deinandra conjugens habitat, and what habitat is essential to the 
conservation of the species and why;
    (3) Land use practices and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) Any foreseeable economic or other impacts resulting from the 
proposed designation of critical habitat, in particular, any impacts on 
small entities or families; and,

[[Page 32063]]

    (5) Economic and other values associated with designating critical 
habitat for Deinandra conjugens, such as those derived from non-
consumptive uses (e.g., hiking, camping, bird-watching, enhanced 
watershed protection, improved air quality, increased soil retention, 
``existence values,'' and reductions in administrative costs); and
    (6) Whether our approach to critical habitat designation could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concern and comments.
    If you wish to comment on this proposed rule, you may submit your 
comments and materials by any one of several methods (see ADDRESSES 
section). If submitting comments by electronic format, please submit 
them in ASCII file format and avoid the use of special characters and 
encryption. Please include ``Attn: 1018-AH00'' and your name and return 
e-mail address in your e-mail message. Please note that the e-mail 
address will be closed out at the termination of the public comment 
period. If you do not receive confirmation from the system that we have 
received your message, contact us directly by calling our Carlsbad Fish 
and Wildlife Office at phone number 760/431-9440.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home address, which we will honor to the extent allowable by law. 
In some circumstances, we would withhold from the rulemaking record a 
respondent's identity, as allowable by law. If you wish us to withhold 
your name and/or address, you must state this request prominently at 
the beginning of your comment. However, we will not consider anonymous 
comments. To the extent consistent with applicable law, we will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we will seek the expert opinions of at least three appropriate 
and independent specialists regarding this proposed rule. The purpose 
of such review is to ensure listing decisions are based on 
scientifically sound data, assumptions, and analyses. We will send 
these peer reviewers copies of this proposed rule immediately following 
publication in the Federal Register. We will invite these peer 
reviewers to comment, during the public comment period, on the specific 
assumptions and conclusions regarding the proposed designation of 
critical habitat.
    We will consider all comments and information received during the 
public comment period on this proposed rule during preparation of a 
final rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made at least 15 
days prior to the close of the public comment period. We will schedule 
public hearings on this proposal, if any are requested, and announce 
the dates, times, and places of those hearings in the Federal Register 
and local newspapers at least 15 days prior to the first hearing.

Clarity of the Rule

    Executive Order 12866 requires each agency to write regulations/
notices that are easy to understand. We invite your comments on how to 
make this notice easier to understand including answers to questions 
such as the following: (1) Are the requirements in the notice clearly 
stated? (2) Does the notice contain technical language or jargon that 
interferes with the clarity? (3) Does the format of the notice 
(grouping and order of sections, use of headings, paragraphing, etc.) 
aid or reduce its clarity? (4) Is the description of the notice in the 
SUPPLEMENTARY INFORMATION section of the preamble helpful in 
understanding the notice? What else could we do to make the notice 
easier to understand?
    Send a copy of any comments that concern how we could make this 
notice easier to understand to: Office of Regulatory Affairs, 
Department of the Interior, Room 7229, 1849 C Street, NW, Washington, 
DC 20240. You may e-mail your comments to this address: 
<a href="/cdn-cgi/l/email-protection#98dde0fdfbebfdfbd8f1f7ebb6fcf7f1b6fff7ee"><span class="__cf_email__" data-cfemail="24615c4147574147644d4b570a404b4d0a434b52">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a 
significant rule and was reviewed by the Office of Management and 
Budget (OMB) in accordance with the four criteria discussed below. We 
are preparing a draft analysis of this proposed action, which will be 
available for public comment, to determine the economic consequences of 
designating the specific areas as critical habitat. The availability of 
the draft economic analysis will be announced in the Federal Register 
and in local newspapers so that it is available for public review and 
comments.
    (a) While we will prepare an economic analysis to assist us in 
considering whether areas should be excluded pursuant to section 4 of 
the Act, we do not believe this rule will have an annual effect on the 
economy of $100 million or more or adversely affect in a material way 
the economy, a sector of the economy, productivity, competition, jobs, 
the environment, public health or safety, or State, local, or tribal 
governments or communities. Therefore, we do not believe a cost benefit 
and economic analysis pursuant to EO 12866 is required.
    Deinandra conjugens was listed a threatened species in 1998. In 
fiscal years 1998 through 2001, we have conducted, or are in the 
process of conducting, an estimated eight formal section 7 
consultations with other Federal agencies to ensure that their actions 
will not jeopardize the continued existence of Deinandra conjugens. We 
have also issued section 10(a)(1)(B) incidental take permits for 
approximately three projects in areas where the species occurs.
    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 the proposed critical habitat 
would currently be considered as ``jeopardy'' under the Act (see Table 
2). Accordingly, the designation of critical habitat for Deinandra 
conjugens is not anticipated to have any significant incremental 
impacts on actions proposed by Federal agencies or non-Federal persons 
that receive Federal authorization or funding. Non-Federal persons that 
do not have a Federal ``sponsorship'' of their actions are not 
restricted by the designation of critical habitat.

[[Page 32064]]

    (b) This rule is not expected to 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 Deinandra conjugens since the listing in 1998. The 
prohibition against adverse modification of critical habitat is 
expected to impose few, if any, additional restrictions to those that 
currently exist. Because of the potential for impacts on other Federal 
agency activities, we will continue to review this action for any 
inconsistencies with other Federal agencies' actions.
    (c) This rule is not expected to materially affect entitlements, 
grants, user fees, loan programs, or the rights and obligations of 
their recipients. Federal agencies are currently required to ensure 
that their activities do not jeopardize the continued existence of the 
species, and as discussed above we do not anticipate that the adverse 
modification prohibition (resulting from critical habitat designation) 
will have any significant incremental effects.
    (d) OMB has determined that this rule may raise novel legal or 
policy issues and, as a result, this rule has undergone OMB review.

                Table 2.--Impacts of Deinandra conjugens Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                               Additional activities potentially
     Categories of activities           Activities potentially affected by        affected by critical habitat
                                             species listing only \1\                   designation \2\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially      Activities the Federal Government carries  None.
 Affected \3\.                       out such as removing, thinning, or
                                     destroying Deinandra conjugens habitat
                                     (as defined in the primary constituent
                                     elements discussion), whether by burning
                                     or mechanical, chemical, or other means
                                     (e.g., woodcutting, grubbing, grading,
                                     overgrazing, construction, road
                                     building, mining, herbicide application,
                                     etc.) and appreciably decreasing habitat
                                     value or quality through indirect
                                     effects (e.g., edge effects, invasion of
                                     exotic plants or animals, or
                                     fragmentation.
Private Activities Potentially      Activities such as removing, thinning, or  None.
 Affected \4\.                       destroying Deinandra conjugens habitat
                                     (as defined in the primary constituent
                                     elements discussion), whether by burning
                                     or mechanical, chemical, or other means
                                     (e.g., woodcutting, grubbing, grading,
                                     overgrazing, construction, road
                                     building, mining, herbicide application,
                                     etc.) and appreciably decreasing habitat
                                     value or quality through indirect
                                     effects (e.g., edge effects, invasion of
                                     exotic plants or animals, or
                                     fragmentation that require a Federal
                                     action (permit, authorization, or
                                     funding).
----------------------------------------------------------------------------------------------------------------
\1\ This column represents the activities potentially affected by listing the Deinandra conjugens as a
  threatened species (October 13, 1998, 63 FR 54938) under the Endangered Species Act.
\2\ This column represents the activities potentially affected by the critical habitat designation in addition
  to those activities potentially affected by listing the species.
\3\ Activities initiated by a Federal agency.
\4\ Activities initiated by a private entity that may need Federal authorization or funding.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996) whenever an agency is required to publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effect of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
an agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities. SBREFA amended the 
Regulatory Flexibility Act to require Federal agencies to provide a 
statement of the factual basis for certifying that a rule will not have 
a significant economic impact on a substantial number of small 
entities. The following discussion explains our determination.
    The areas we are proposing as critical habitat are already 
occupied, by either or both standing plants and the seed bank, by 
Deinandra conjugens. As a result, Federal agencies funding, permitting, 
or implementing activities in these areas are already required to 
consult with us under section 7 of the Act, to avoid jeopardizing the 
continued existence of this species. While the designation of critical 
habitat will require that agencies ensure, through section 7 
consultation, that their activities do not destroy or adversely modify 
critical habitat, for the reasons discussed above we do not believe 
this will result in any additional regulatory burden on the Federal 
agencies or their applicants. As a result, this proposed rule, if 
finalized, would not result in a significant economic burden on Federal 
agencies or their applicants.
    Therefore, we are certifying that this proposed rule is not 
expected to have a significant adverse impact on a substantial number 
of small entities. Thus, no regulatory flexibility analysis is 
necessary.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (EO 13211) 
which applies to regulations that significantly affect energy supply, 
distribution, and use. Executive Order 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
Because this proposed rule is not expected to significantly affect 
energy supplies, distribution, or use, this action is not a significant 
energy action and no Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) This rule, as proposed, will not ``significantly or uniquely'' 
affect small governments. A Small Government Agency Plan is not 
required. Small governments will only be affected to the extent that 
they proposed activities requiring Federal funds, permits or other 
authorization. Activities with a Federal nexus may not destroy or 
adversely modify critical habitat. However, as discussed in section 1, 
these activities are currently subject to equivalent restrictions as a 
result of the listing of the species, and no further restrictions are 
anticipated.
    (b) This rule, as proposed, will not produce a Federal mandate of 
$100 million or greater in any year, that is, it

[[Page 32065]]

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, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. The rule will not increase or 
decrease current restrictions on private property concerning Deinandra 
conjugens. Due to current public knowledge of the species' protection, 
and the fact that critical habitat provides no additional 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.

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 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 within the 
geographic range occupied by Deinandra conjugens imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined, and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist these local governments 
in long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We are proposing to designate 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 Deinandra conjugens.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any information collection requirements 
for which OMB approval under the Paperwork Reduction Act is required. 
An agency may not conduct or sponsor, and a person is not required to 
respond to, a collection of information unless it displays a valid OMB 
Control Number.

National Environmental Policy Act

    We have determined 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 Endangered Species 
Act, as amended. We published a notice outlining our reason for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This proposed determination does not constitute a major Federal 
action significantly affecting the quality of the human environment.

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 readily 
acknowledge our responsibility to communicate meaningfully with 
recognized Federal Tribes on a government-to-government basis. We have 
determined that there are no Tribal lands essential for the 
conservation of Deinandra conjugens because these lands do not support 
populations, or provide essential habitat. Therefore, critical habitat 
for Deinandra conjugens has not been designated on Tribal lands.

References Cited

    A complete list of all references cited in this proposed rule is 
available upon request from the Carlsbad Fish and Wildlife Office (see 
ADDRESSES section).

Author

    The primary author of this proposed rule is Mark A. Elvin (see 
ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we proposed to amend part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

    1. The authority citation for part 17 continues to read as follows:

    Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C. 
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

    2. In Sec. 17.12(h), remove the entry for Hemizonia conjugens and 
add the following in alphabetical order under ``FLOWERING PLANTS'' to 
the List of Endangered and Threatened Plants to read as follows:


Sec. 17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

[[Page 32066]]



 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                   *                  *                  *                  *                  *                  *                  *
Deinandra conjugens [=Hemizonia    Otay tarplant.......  U.S.A. (CA), Mexico  Asteraceae--Sunflow  T                       649     17.96(b)           NA
 conjugens].                                                                   er.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec. 17.96, as proposed to be amended at 65 FR 66865, 
November 7, 2000, add critical habitat for the Otay tarplant (Deinandra 
conjugens) under paragraph (b) by adding an entry for Deinandra 
conjugens in alphabetical order under Asteraceae to read as follows:


Sec. 17.96  Critical habitat--plants.

* * * * *
    (b) Single-species critical habitat--flowering plants.
* * * * *
Family Asteraceae: Deinandra conjugens (Otay tarplant)
    (1) Critical habitat units are depicted for San Diego County, 
California, on the maps below.
    (2) The primary constituent elements of critical habitat for 
Deinandra conjugens are those habitat components that are essential for 
the primary biological needs of the species. Based on our current 
knowledge of this species, the primary constituent elements for 
Deinandra conjugens consist of, but are not limited to:
    (i) Soils with a high clay content (generally >25 percent) (or clay 
intrusions or lenses) that are associated with grasslands (native, non-
native, and mixed), open coastal sage scrub, or maritime succulent 
scrub communities between 25 m (80 ft) and 300 m (1,000 ft) elevation;
    (ii) Plant communities associated with Deinandra conjugens which 
include but are not limited to grasslands (native, non-native, and 
mixed), open coastal sage scrub, and maritime succulent scrub between 
25 and 300 m (80 and 1,000 ft) elevation in southern San Diego County, 
California. Species common to these communities include Nassella spp. 
(needlegrasses), Bloomeria crocea (common goldenstar), Dichelostemma 
pulchella (blue dicks), Chlorogalum spp. (soap plants), Bromus spp. 
(brome grasses), Avena spp. (oats), Deinandra fasciculata (fascicled 
tarweed), Lasthenia californica (common goldfields), Artemisia 
californica (California sagebrush), Eriogonum fasciculatum (flat-top 
buckwheat), Lotus scoparius (deer weed), Salvia spp. (sages), Mimulus 
aurantiacus (bush monkeyflower), Malacothamnus fasciculatum 
(bushmallow), Malosma laurina (laurel sumac), Rhus ovata (sugar bush), 
R. integrifolia (lemonade berry), Lycium spp. (boxthorns), Euphorbia 
misera (cliff spurge), Simmondsia chinensis (jojoba), Opuntia spp. 
(prickly pear and cholla cactuses), Ferocactus viridescens (coastal 
barrel cactus), Ambrosia chenopodiifolia (San Diego bur sage), and 
Dudleya spp. (live-forevers). These plant communities contain natural 
openings that provide nesting, foraging, and dispersal sites for D. 
conjugens pollen and seed dispersal agents. These openings may have 
soil inclusions that contain a significantly higher concentration of 
sandy soils than the adjacent clay soils.
    (iii) Critical habitat does not include non-Federal lands covered 
by a legally operative Habitat Conservation Plan issued under section 
10(a)(1)(B) of the Act in which Deinandra conjugens is a covered 
species on or before June 13, 2001.
    (iv) Existing features and structures, such as buildings, paved or 
unpaved roads, and other landscaped areas not containing primary 
constituent elements, are not considered critical habitat. 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.

[[Page 32067]]

[GRAPHIC] [TIFF OMITTED] TP13JN01.007

BILLING CODE 4310-55-U
    Map Unit 1: Sweetwater/Proctor Valley, San Diego County, 
California.
    Unit 1a: From USGS 1:24,000 quadrangle map Jamul Mountains, 
beginning at the San Diego National Wildlife Refuge (SDNWR) boundary at 
UTM NAD27 x-coordinate 505100; thence south following UTM NAD27 
coordinates (E, N): 505100, 3620400; 505000, 3620400; 505000, 3620200; 
504900, 3620200; 504900, 3620100; 504800, 3620100; 504800, 3620000; 
504700, 3620000; 504700, 3619900; 504600, 3619900; 504600, 3619700; 
504500, 3619700; 504500, 3619600; 504400, 3619600; 504400, 3619500; 
504300, 3619500; 504300, 3619400; 504100, 3619400; 504100, 3619300; 
504000, 3619300; thence south to the SDNWR boundary at UTM x-coordinate 
504000; thence south following the SDNWR boundary returning to the 
point of beginning on the SDNWR boundary at UTM x-coordinate 505100.
    Unit 1b: From USGS 1:24,000 quadrangle maps National City and Jamul 
Mountains, beginning at the Sweetwater Reservoir at UTM NAD27 y-
coordinate 3618500; thence east and following UTM NAD27 coordinates 
503000, 3618500; 503000, 3616000; 503100, 3616000; 503100, 3615400; 
503200, 3615400; 503200, 3615300; 503600, 3615300; 503600, 3615400; 
503700, 3615400; 503700, 3615600; 503900, 3615600; 503900, 3615800; 
thence east to the Otay Water District (OWD) boundary at UTM NAD27 y-
coordinate 3615800; thence north following the OWD boundary to the City 
of Chula Vista Preserve Design (CCVPD) boundary; thence east following 
the CCVPD boundary to UTM NAD27 x-coordinate 505900; thence north 
following UTM NAD27 coordinates 505900, 3615900; 506000, 3615900; 
506000, 3616000; 506700, 3616000, 506700, 3616100; thence east to the 
SDNWR boundary at UTM NAD27 y-coordinate 3616100; thence east following 
the SDNWR boundary to UTM NAD27 x-coordinate 507200; thence north 
following UTM NAD27 coordinates 507200, 3616200; 507400, 3616200; 
507400, 3616300; 507500, 3616300; 507500, 3616400; 507600, 3616400; 
thence north to the County of San Diego Major Amendment (CSDMjA) 
boundary at UTM NAD27 x-coordinate 507600; thence east following the 
CSDMjA boundary to the SDNWR boundary; thence south following the SDNWR 
boundary to the CSDMjA boundary; thence south following the CSDMjA 
boundary to UTM NAD27 x-coordinate 506100; thence south following UTM 
NAD27 coordinates 506100, 3613100; 506000, 3613100; thence north to the 
City of Chula Vista (CCV) boundary at UTM NAD27 x-coordinate 506000; 
thence northwest following the CCV boundary to UTM NAD27 x-coordinate 
505700; thence north following UTM NAD27 coordinates 505700, 3612800; 
505600, 3612800; 505600, 3613200; 505500, 3613200; 505500, 3613300; 
505400, 3613300; 505400, 3613400; 505300, 3613400; 505300, 3613500; 
505200, 3613500; 505200, 3613700; 505300, 3613700; 505300, 3613600; 
505400, 3613600; 505400, 3613500; 505500, 3613500; 505500, 3613800; 
505300,

[[Page 32068]]

3613800; 505300, 3614300; 505100, 3614300; 505100, 3614700; 505400, 
3614700; 505400, 3614900; 505200, 3614900; 505200, 3615100; thence 
north to the CCVPD boundary at UTM NAD27 x-coordinate 505200; thence 
west following the CCVPD boundary to the OWD boundary; thence south 
following the OWD boundary to UTM NAD27 x-coordinate 504600; thence 
north following UTM NAD27 coordinates 504600, 3614600; 504500, 3614600; 
504500, 3615500; 504400, 3615500; 504400, 3615700; 504300, 3615700; 
504300, 3615800; 504200, 3615800; 504200, 3615700; 504100, 3615700; 
504100, 3615200; 504000, 3615200; 504000, 3615100; 503900, 3615100; 
503900, 3614900; 503800, 3614900; 503800, 3614800; 503900, 3614800; 
503900, 3614600; 503800, 3614600; 503800, 3614400; 503700, 3614400; 
thence south to the OWD boundary at UTM NAD27 x-coordinate 503700; 
thence west following the OWD boundary to the Multiple Habitat Planning 
Area (MHPA) boundary; thence west following the MHPA to the SDNWR 
boundary; thence south following the SDNWR boundary to UTM NAD27 y-
coordinate 3616100; thence west following UTM NAD27 coordinates 501200, 
3616100; 501200, 3615800; 500800, 3615800; thence north to the 
Sweetwater Authority Water District (SWAWD) boundary at UTM NAD27 x-
coordinate 500800; thence west following the SWAWD boundary to the 
County of San Diego Minor Amendment (CSDMnA) boundary; thence west 
following the CSDMnA boundary to the SWAWD boundary; thence west 
following the SWAWD boundary to approximately UTM NAD27 coordinates 
5014000, 3618650 where the SWAWD meets the Sweetwater Reservoir 
shoreline; thence south following the Sweetwater Reservoir shoreline 
back to the point of beginning at UTM NAD27 y-coordinate 3618500; 
excluding lands bounded by the CCVPD boundary at UTM NAD27 x-coordinate 
505800; thence east following the CCVPD boundary to UTM NAD27 x-
coordinate 506100; thence north and following UTM NAD27 coordinates 
506100, 3614700; 505700, 3614700; 505700, 3615300; 505800, 3615300; 
thence north returning to the point of beginning on the CCVPD boundary 
at UTM NAD27 x-coordinate 505800; excluding the proposed State Route 
125 easement.
    Unit 1 c and d: From USGS 1:24,000 quadrangle map Jamul Mountains, 
the lands bounded by the CCVPD boundary at Horseshoe Bend and Gobblers 
Knob.
[GRAPHIC] [TIFF OMITTED] TP13JN01.008

    Map Unit 2: Chula Vista, San Diego County, California.
    Unit 2a: From USGS 1:24,000 quadrangle maps National City, the 
lands bounded by the CCVPD boundary in Long Canyon and between UTM 
NAD27 coordinates 497900 and 499700.
    Unit 2b and c: From USGS 1:24,000 quadrangle map National City, the 
lands bounded by the CCVPD boundary south of Otay Lakes Road and 
between UTM

[[Page 32069]]

NAD27 x-coordinates 497300 and 499500.
    Unit 2d: From USGS 1:24,000 quadrangle map National City, the lands 
bounded by the CCVPD boundary in Rice Canyon and between UTM NAD27 x-
coordinates 496900 and 499100.
    Unit 2e: From USGS 1:24,000 quadrangle maps National City and 
Imperial Beach, the lands bounded by the CCVPD boundary in Telegraph 
Canyon and between UTM NAD27 x-coordinates 498100 and 499300.
    Unit 2f and h: From USGS 1:24,000 quadrangle map Imperial Beach, 
the lands bounded by the CCVPD boundary in Poggi Canyon and between UTM 
NAD27 x-coordinates 497400 and 499000.
    Unit 2g: From USGS 1:24,000 quadrangle map Imperial Beach, 
beginning at the CCV boundary at UTM NAD27 x-coordinate 498600; thence 
south following UTM NAD27 coordinates 498600, 3607300; 498400, 3607300; 
498400, 3607200; 498300, 3607200; 498300, 3606900; 498500, 3606900; 
thence south to the CCV boundary at UTM NAD27 x-coordinate 498500; 
thence west following the CCV boundary to the CCVPD boundary; thence 
west following the CCVPD boundary to the CCV boundary; thence east 
returning to the point of beginning on the CCV boundary at UTM NAD27 x-
coordinate 498600.
[GRAPHIC] [TIFF OMITTED] TP13JN01.009

    Map Unit 3: Otay Valley/Big Murphy's, San Diego County, California.
    Unit 3a: From USGS 1:24,000 quadrangle maps Imperial Beach, Otay 
Mesa, and Jamul Mountains beginning on the CCVPD boundary at UTM NAD27 
x-coordinate 499900; thence east following the CCVPD boundary to UTM 
NAD27 x-coordinate 506400; thence south following the UTM NAD27 
coordinates 506400, 3607200; 506300, 3607200; 506300, 3607100; 505600, 
3607100; 505600, 3606900; 505300, 3606900; 505300, 3606700; 505100, 
3606700; 505100, 3606600; 504900, 3606600; 504900, 3606500; 504800, 
3606500; 504800, 3606600; 504700, 3606600; 504700, 3606700; 504500, 
3606700; 504500, 3606600; 504400, 3606600; 504400, 3606500; 504300, 
3606500; 504300, 3606300; thence west to the CCVPD boundary at UTM y-
coordinate 3606300; thence north following the CCVPD boundary to UTM 
NAD27 x-coordinate 502400; thence south following UTM NAD27 coordinates 
502100, 3605600; 502100, 3605500; 501900, 3605500; 501900, 3605300; 
502800, 3605300; 502800, 3605400; thence east to the CCVPD boundary at 
UTM NAD27 y-coordinate 3605400; thence east following the CCVPD 
boundary to UTM NAD27 x-coordinate 504500; thence north following UTM 
NAD27 coordinates 504500, 3606200; 504800, 3606200;

[[Page 32070]]

504800, 3606300; 505000, 3606300; 505000, 3606400; 505100, 3606400; 
505100, 3606500; 505200, 3606500; 505200, 3606600; 505700, 3606600; 
505700, 3606500; 505800, 3606500; 505800, 3606600; 506300, 3606600; 
506300, 3606800; 506600, 3606800; 506600, 3606900; thence east to the 
CCVPD boundary at UTM NAD27 y-coordinate 3606900; thence south 
following the CCVPD boundary to the CCV boundary; thence west following 
the CCV boundary to the CCVPD boundary; thence north following the 
CCVPD boundary to the UTM NAD27 y-coordinate 3604700; thence west 
following UTM NAD27 coordinates 500400, 3604700; 500400, 3604800; 
500100, 3604800; 500100, 3604700; thence west to the CCV boundary at 
UTM NAD27 y-coordinate 3604700; thence north along the CCV boundary to 
the CCVPD boundary; thence east following the CCVPD boundary to UTM 
NAD27 x-coordinate 501300; thence north following UTM NAD27 coordinates 
501300, 3605300; 501400, 3605300; thence north to the CCVPD boundary at 
UTM NAD27 x-coordinate 501400; thence north following the CCVPD 
boundary to UTM NAD27 x-coordinate 501600; thence north following UTM 
NAD27 coordinates 501600, 3605900; 501500, 3605900; 501500, 3606000; 
501300, 3606000; 501300, 3606100; thence north to the CCVPD boundary at 
UTM NAD27 x-coordinate 501300; thence east following the CCVPD boundary 
to UTM NAD27 y-coordinate 3605700; thence east following UTM NAD27 
coordinates 500600, 3605700; 500600, 3605800; 500100, 3605800; 500100, 
3605900; 499900, 3605900; thence north returning to the point of 
beginning on the CCVPD boundary at UTM NAD27 x-coordinate 499900; 
excluding the proposed State Route 125 easement.
    Unit 3b: From USGS 1:24,000 quadrangle map Otay Mesa, the southern 
half of the Immigration and Nationalization Service land at Brownfield.
    Unit 3c: From USGS 1:24,000 quadrangle map Otay Mesa, beginning on 
the CSDMjA boundary at UTM NAD27 y-coordinate 3604000; thence south 
following the CSDMjA boundary to UTM NAD27 x-coordinate 509200; thence 
south following UTM NAD27 coordinates 509200, 3602900; 509000, 3602900; 
509000, 3602800; 509100, 3602800; 509100, 3602700; 508200, 3602700; 
508200, 3603200; 508100, 3603200; 508100, 3603400; 508000, 3603400; 
508000, 3603600; 508100, 3603600; 508100, 3603700; 508200, 3603700; 
508200, 3603800; 508400, 3603800; 508400, 3604000; returning to the 
point of beginning on the CSDMjA boundary at UTM NAD27 y-coordinate 
3604000.

[[Page 32071]]

[GRAPHIC] [TIFF OMITTED] TP13JN01.010


    Dated: June 1, 2001.
Marshall P. Jones, Jr.,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-14309 Filed 6-12-01; 8:45 am]
BILLING CODE 4310-55-C


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