59952 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AJ11 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Atriplex coronata var. 

notatior (San Jacinto Valley 

crownscale) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), herein 

address the designation of critical 

habitat for Atriplex coronata var. 

notatior (San Jacinto Valley crownscale) 

pursuant to the Endangered Species Act 

of 1973, as amended (Act). We are 

designating zero acres of critical habitat 

for A. coronata var. notatior. We 

identified 15,232 acres (ac) (6,167 

hectares (ha)) of habitat with features 

essential to the conservation of this 

taxon. However, all habitat with 

essential features for this taxon is 

located either within our estimate of the 

areas to be conserved and managed by 

the approved Western Riverside MSHCP 

on existing Public/Quasi-Public Lands 

(PQP) lands, or within areas where the 

MSHCP will ensure that future projects 

will not adversely alter essential 

hydrological processes, and therefore is 

excluded from critical habitat under 

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

DATES: This rule becomes effective on 

November 14, 2005. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, are available for public 

inspection, by appointment, during 

normal business hours, at the Carlsbad 

Fish and Wildlife Office, 6010 Hidden 

Valley Road, Carlsbad, CA 92011 

(telephone 760/431–9440). The final 

rule, economic analysis, and maps will 

also be available via the Internet at 

http://carlsbad.fws.gov/SJVCDocs.htm. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Carlsbad Fish and 

Wildlife Office, at the above address, 

(telephone 760/431–9440; facsimile 

760/431–9624). 

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides 

Little Additional Protection to Species 

In 30 years of implementing the Act, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of available 

conservation resources. The Service’s 

present system for designating critical 

habitat has evolved since its original 

statutory prescription into a process that 

provides little real conservation benefit, 

is driven by litigation and the courts 

rather than biology, limits our ability to 

fully evaluate the science involved, 

consumes enormous agency resources, 

and imposes huge social and economic 

costs). The Service believes that 

additional agency discretion would 

allow our focus to return to those 

actions that provide the greatest benefit 

to the species most in need of 

protection. 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

While attention to and protection of 

habitat is paramount to successful 

conservation actions, we have 

consistently found that, in most 

circumstances, the designation of 

critical habitat is of little additional 

value for most listed species, yet it 

consumes large amounts of conservation 

resources. Sidle (1987) stated, ‘‘Because 

the Act can protect species with and 

without critical habitat designation, 

critical habitat designation may be 

redundant to the other consultation 

requirements of section 7.’’ Currently, 

only 473 species, or 38 percent of the 

1,253 listed species in the U.S. under 

the jurisdiction of the Service, have 

designated critical habitat. 

We address the habitat needs of all 

1,253 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, and the Section 10 incidental 

take permit process. The Service 

believes that it is these measures that 

may make the difference between 

extinction and survival for many 

species. 

We note, however, that two courts 

found our definition of adverse 

modification to be invalid (March 15, 

2001, decision of the United States 

Court Appeals for the Fifth Circuit, 

Sierra Club v. U.S. Fish and Wildlife 

Service et al., F.3d 434, and the August 

6, 2004, Ninth Circuit judicial opinion, 

Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service). On 

December 9, 2004, the Director issued 

guidance to be used in making section 

7 adverse modification determinations. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of court 

ordered designations have left the 

Service with almost no ability to 

provide for adequate public 

participation or to ensure a defect-free 

rulemaking process before making 

decisions on listing and critical habitat 

proposals due to the risks associated 

with noncompliance with judiciallyimposed deadlines. This in turn fosters 

a second round of litigation in which 

those who fear adverse impacts from 

critical habitat designations challenge 

those designations. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides relatively little additional 

protection to listed species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 

of compliance with the National 

Environmental Policy Act (NEPA). None 

of these costs result in any benefit to the 

species that is not already afforded by 

the protections of the Act enumerated 

earlier, and they directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

It is our intent to discuss only those 

topics directly relevant to the subject of 

this final rule. For more information on 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59953 

the biology, ecology, and distribution of 

this taxon, refer to the proposed listing 

rule published in the Federal Register 

on December 15, 1994 (59 FR 64812), 

the final listing rule published in the 

Federal Register on October 13, 1998 

(63 FR 54975), and the proposed critical 

habitat rule published in the Federal 

Register on October 6, 2004 (69 FR 

59844). 

Previous Federal Actions 

Please see the final rule listing 

Atriplex coronata var. notatior as 

endangered for a description of previous 

Federal actions through October 13, 

1998 (63 FR 54975). At the time of the 

final listing rule, the Service determined 

designation of critical habitat was not 

prudent because such designation 

would not benefit the species. 

On November 15, 2001, a lawsuit was 

filed against the Department of the 

Interior (DOI) and the Service by the 

Center for Biological Diversity and 

California Native Plant Society, 

challenging our ‘‘not prudent’’

determinations for eight plants 

including Atriplex coronata var. 

notatior (CBD, et al. v. Norton, No. 01–

CV–2101 (S.D. Cal.)). A second lawsuit 

asserting the same challenge was filed 

against DOI and the Service by the 

Building Industry Legal Defense 

Foundation (BILD) on November 21, 

2001 (BILD v. Norton, No. 01–CV–2145 

(S.D. Cal.)). The parties in both cases 

agreed to remand the critical habitat 

determinations to the Service for 

additional consideration. In an order 

dated July 1, 2002, the U.S. District 

Court for the Southern District of 

California directed us to reconsider our 

not prudent finding and publish a 

proposed critical habitat rule for A. 

coronata var. notatior, if prudent, on or 

before January 30, 2004. In a motion to 

modify the July 1, 2002 order, the DOI 

and the Service requested that the due 

date for the proposed and final rules for 

A. coronata var. notatior be extended 

until October 1, 2004 and October 1, 

2005, respectively. This motion was 

granted on September 9, 2003. The 

proposed rule was signed September 30, 

2004 and published in the Federal 

Register October 6, 2004 (69 FR 59844). 

This final rule complies with the court’s 

ruling. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for Atriplex coronata 

var. notatior and on the draft economic 

analysis of the proposed designation 

during two comment periods. We also 

contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule and the draft 

economic analysis. 

During the comment period that 

opened on October 6, 2004, and closed 

December 6, 2004, we received 5 

comment letters directly addressing the 

proposed critical habitat designation: 3 

from peer reviewers, and 2 from 

organizations or individuals. During the 

comment period that opened on August 

31, 2005, and closed on September 15, 

2005, we received 6 comment letters 

directly addressing the proposed critical 

habitat designation and the draft 

economic analysis: 3 were from a peer 

reviewer, and 3 were from 

organizations. One commenter 

supported our decision not to designate 

critical habitat for Atriplex coronata var. 

notatior and five opposed our decision. 

Comments received were grouped into 

18 general issues specifically relating to 

the proposed critical habitat designation 

for A. coronata var. notatior, and are 

addressed in the following summary 

and incorporated into the final rule as 

appropriate. We did not receive any 

requests for a public hearing. We 

reviewed all comments received from 

the peer reviewers and the public for 

substantive issues and new information 

regarding critical habitat for A. coronata 

var. notatior. All comments are 

addressed in the following summary 

and incorporated into the final rule as 

appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from three knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

all three peer reviewers. The peer 

reviewers were generally supportive of 

the designation of critical habitat. 

However, they did not support the 

exclusion of critical habitat for Atriplex 

coronata var. notatior based on the 

presence of an existing habitat 

conservation plan (HCP). 

Peer Reviewer Comments on the 

Proposed Rule 

1. Comment: The three peer reviewers 

submitted 26 comments on how to: 

reduce the redundancy and length of the 

rule; edit punctuation, wording, and 

terminology: and incorporate citations 

to help the rule be more clear and 

succinct. 

Our Response: We have incorporated 

these comments into the final rule as 

appropriate. 

2. Comment: The three peer reviewers 

submitted 38 comments on Atriplex 

coronata var. notatior and the Western 

Riverside MSHCP. These comments 

emphasized the importance of including 

in the final rule a clear, detailed 

explanation of the Western Riverside 

MSHCP, its associated Implementing 

Agreement (IA), the Service’s formal 

section 7 consultation for the MSHCP, 

and the Service’s responsibilities and 

authority under the MSHCP as they 

relate to A. coronata var. notatior. 

Our Response: We appreciate the peer 

reviewers’ concerns regarding the 

MSHCP and its associated documents, 

and we have incorporated detailed 

information on these as they relate to 

Atriplex coronata var. notatior under 

the section titled ‘‘Relationship of 

Critical Habitat to the Western Riverside 

Multiple Species Habitat Conservation 

Plan.’’ The MSHCP and its associated IA 

are available via the Internet at http:// 

rcip.org/conservation.htm, and the 

Service’s formal section 7 consultation 

and Conceptual Reserve Design map are 

available via the Internet at http:// 

www.fws.gov/pacific/carlsbad/ 

WRV_MSHCP_BO.htm. 

3. Comment: The three peer reviewers 

submitted 12 comments that disagreed 

with our decision to exclude critical 

habitat based on the presence of an 

existing habitat conservation plan. 

Specific comments included: (1) The 

statement that the Service had failed to 

provide an adequate basis for the 

exclusion of lands from critical habitat; 

(2) that our decision to exclude lands 

from critical habitat based on the 

MSHCP’s ability to protect the taxon’s 

habitat was not adequately supported; 

and (3) that not all agencies are 

signatory to the MSHCP and therefore 

critical habitat should be identified for 

those projects and agencies operating 

outside the MSHCP. 

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

Act allows us to consider the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such an area as critical habitat 

will result in the extinction of the 

species. We have determined that 

benefits of exclusion of areas covered by 

the Western Riverside MSHCP outweigh 

the benefits of inclusion, and have 

included a more detailed analysis of the 

benefits of the MSHCP in this final rule 

59954 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

under the section titled ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’. 

4. Comment: The three peer reviewers 

submitted four comments that disagreed 

with the Service’s statement in the rule 

that designation of critical habitat 

provides little additional protection to 

species (see SUPPLEMENTARY

INFORMATION section above). Concern 

was expressed that a critical habitat 

proposal was not the appropriate venue 

for a discussion of the resource and 

procedural difficulties in designating 

critical habitat. It was suggested that 

critical habitat could be used as a tool 

to manage or end threats to the species, 

such as manure dumping. Additionally, 

it was suggested that the designation of 

critical habitat would give more 

recognition and attention to the habitat 

of Atriplex coronata var. notatior. 

Our Response: As discussed in the 

SUPPLEMENTARY INFORMATION section and 

other sections of this and other critical 

habitat designations, we believe that (in 

most cases) various conservation 

mechanisms provide greater incentives 

and conservation benefits than 

designation of critical habitat. These 

include section 7 consultations, the 

section 4 recovery planning process, the 

section 9 protective prohibitions of 

unauthorized take, section 6 funding to 

the States, the section 10 incidental take 

permit process, and cooperative 

programs with private and public 

landholders and tribal nations. 

While we concur that critical habitat 

designation can provide some level of 

species protection, this can only be 

provided if there is a Federal nexus for 

those agencies planning actions that 

may impact the designated habitat. We 

are unaware of any Federal nexus that 

would generally apply to application of 

soil amendments, such as the dumping 

of manure. 

5. Comment: Two peer reviewers 

submitted two comments that disagreed 

with the Service’s statement that the 

exclusion of critical habitat based on 

existing HCPs offers ‘‘unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants.’’ They commented that the 

Service should be able to continue 

working cooperatively with partners on 

HCPs and other conservation efforts 

once critical habitat has been 

designated, and asked that we provide 

further explanation of how the 

designation of critical habitat may 

impede cooperative conservation efforts, 

such as the MSHCP. 

Our Response: Both HCPs and critical 

habitat designations are designed to 

provide conservation measures to 

protect species and their habitats. The 

advantage of seeking new conservation 

partnerships (through HCPs or other 

means) is that they can offer active 

management and other conservation 

measures for the habitat on a full-time 

and predictable basis. Critical habitat 

designation only prevents adverse 

modification of the habitat where there 

is a Federal nexus to the modifying 

activity. The designation of critical 

habitat may remove incentives to 

participate in the HCP processes, in part 

because of added regulatory uncertainty, 

increased costs to plan development 

and implementation, weakened 

stakeholder support, delayed approval 

and development of the plan, and 

greater vulnerability to legal challenge. 

We have in the past received direct 

statements of intent to withdraw from 

other forms of cooperative efforts 

beneficial to the conservation of listed 

species if those landowners’ property 

was included in pending critical habitat 

designations. We work with HCP 

applicants to ensure that their plans 

meet the issuance criteria and that the 

designation of critical habitat on lands 

where an HCP is in development does 

not delay the approval and 

implementation of their HCP. 

Additionally, HCPs offer conservation of 

covered species whether or not the area 

is designated as critical habitat. 

6. Comment: The three peer reviewers 

submitted five comments that 

recommended that the reader be 

referred, under the ‘‘Previous Federal 

Actions’’ section, to both the proposed 

listing rule published on December 15, 

1994 (59 FR 64812), which included 

proposed critical habitat, and the final 

listing rule published on October 13, 

1998 (63 FR 54975), which withdrew 

the 1994 critical habitat proposal due to 

the severe decline of the species. 

Our Response: This reference has 

been incorporated into the Previous 

Federal Actions section above. 

7. Comment: The three peer reviewers 

submitted four comments that 

recommended that the discussion on 

Special Management Considerations be 

expanded. Recommendations include 

citing specific language from the Act to 

support our statement that occupied 

habitat may be included in critical 

habitat only if the essential features 

thereon may require special 

management or protection, and 

clarifying the extent and limitations of 

management measures proposed under 

the MSHCP. The reviewers were 

concerned that the MSHCP had not yet 

resulted in the implementation of 

management actions that would address 

threats to the species, such as soil 

chemistry alteration resulting from 

manure dumping. 

Our Response: In the ‘‘Critical 

Habitat’’ section of the proposed rule we 

provided a definition of critical habitat 

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

Within the ‘‘Special Management 

Considerations’’ section below, we have 

expanded our discussion to address this 

comment. We have also provided a 

more detailed discussion of the 

management measures proposed under 

the MSHCP (see ‘‘Exclusions Under 

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

8. Comment: Two peer reviewers 

submitted seven comments that 

recommended that we incorporate 

changes into the final rule to better 

address the unique status of plants 

under the Act, including the limited 

protection plants are provided under 

section 9 of the Act, and the assistance 

critical habitat could provide to the 

protection and recovery of Atriplex 

coronata var. notatior. 

Our Response: As stated in the 

‘‘Effects of Critical Habitat Designation’’

section of the proposed rule, Section 7 

of the Act requires Federal agencies, 

including the Service, to ensure that 

actions they fund, authorize, or carry 

out are not likely to destroy or adversely 

modify critical habitat. Federal actions 

not affecting listed species or critical 

habitat and actions on non-Federal and 

private lands that are not federally 

funded, authorized, or permitted do not 

require section 7 consultation. The 

designation of critical habitat would not 

change this. Atriplex coronata var. 

notatior is currently known to occur 

exclusively on private lands. If occupied 

private lands were designated as critical 

habitat, any actions with a Federal 

nexus that might adversely affect the 

critical habitat would require a 

consultation with us. However, 

consultation for activities (e.g., habitat 

modification) with a Federal nexus 

which might adversely impact the 

species in occupied habitat would be 

required even without the critical 

habitat designation. Since there is no 

prohibition against take of listed plants 

on private lands, activities without a 

Federal nexus which might adversely 

impact the species or its habitat would 

not require consultation with us even 

with a critical habitat designation. 

9. Comment: The three peer reviewers 

submitted nine comments that stated 

that threats to the species were not 

adequately addressed in the proposed 

rule. Additional threats to discuss 

included the following: (1) Manure 

spreading which buries the seed bank, 

introduces vast quantities of organic 

material and nutrients, and alters soil 

composition and chemistry allowing for 

the invasion of alkali intolerant weeds; 

(2) activities posed by MSHCP covered 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59955 

projects such as the State Route 79 

Realignment Project, the Ramona 

Expressway, and the San Jacinto River 

Flood Control Project; and, (3) nonseasonal flows which may result from 

future development. 

Our Response: We address the threats 

of manure spreading, MSHCP covered 

projects, and non-seasonal flows in the 

‘‘Relationship of Critical Habitat to the 

Western Riverside Multiple Species 

Habitat Conservation Plan’’ and 

‘‘Special Management Considerations or 

Protections’’ sections of this final rule. 

10. Comment: One peer reviewer 

suggested expanding the discussion of 

the species conservation needs to 

include Atriplex coronata var. notatior’s 

requirement for a functioning 

hydrologic system, both in terms of 

local and riverine flooding. 

Our Response: We have expanded our 

discussion of the reliance of Atriplex 

coronata var. notatior on functioning 

hydrologic systems under the ‘‘Water 

and Physiological Requirements’’

section of this final rule. 

11. Comment: One peer reviewer 

stated that restoration of plant 

communities is essential to the recovery 

of Atriplex coronata var. notatior, 

noting the Service’s role in evaluating 

proposed efforts to restore disturbed 

alkali habitats within the species range. 

The reviewer suggested addressing 

whether critical habitat would allow 

additional review of the success of 

restoration efforts. 

Our Response: There are two ways in 

which restoration actions will be 

accomplished for the species under the 

MSHCP, and the Service is included in 

the review process for both. First, 

reserve managers are responsible for the 

maintenance and enhancement of 

floodplain processes of the San Jacinto 

River, Mystic Lake, and upper Salt 

Creek under the MSHCP. We anticipate 

that these actions will be addressed in 

Reserve Management Plans (RMPs) 

which are controlled and implemented 

through the Reserve Management 

Oversight Committee (RMOC) and 

coordinated with Reserve Managers. 

The Service is a member of the RMOC. 

Within 5 years of significant acquisition 

of new reserve lands in a management 

unit, RMPs must be submitted to the 

RMOC. 

Second, several MSHCP policies 

require that if avoidance of certain 

sensitive habitats and species is not 

feasible, to ensure adequate replacement 

of lost functions and values, the MSHCP 

Permittee must make a Determination of 

Biologically Equivalent or Superior 

Preservation (DBESP) that demonstrates 

that a proposed action, including design 

features to minimize impacts and 

compensation measures, will provide 

equal or better conservation than 

avoidance of the sensitive habitats and 

species. The Service has a 60-day 

review and comment period for any 

DBESP prepared under the MSHCP. To 

date, two DBESPs have been submitted 

that will result in restoration activities 

that may benefit Atriplex coronata var. 

notatior (Lockhart 2004; LSA Associates 

Inc. 2005). Project proponents have 

elected to introduce the species into 

restored and created vernal pool habitat 

north of the upper Salt Creek 

populations once initial success criteria 

have been met, even though the 

proposed actions that resulted in 

impacts to vernal pool habitat did not 

directly affect A. coronata var. notatior. 

Finally, and more directly, the 

designation of critical habitat provides 

only restrictions on adverse 

modification to that habitat where there 

is a Federal nexus for the modification. 

It provides no mechanism for positive 

conservation actions that might be 

beneficial to the species, such as 

additional review of or increased efforts 

toward restoration and recovery. 

12. Comment: The three peer 

reviewers submitted six comments that 

pointed out inherent problems with 

censusing an annual plant such as 

Atriplex coronata var. notatior, which is 

only visible seasonally and is subject to 

changing rainfall conditions. The 

reviewers believe that population 

estimates provided in the proposed rule 

are confusing and should be presented 

in context. 

Our Response: Because information 

on this narrow endemic species is very 

limited, we presented all census 

information we were aware of in the 

2004 proposed critical habitat rule. 

However, it is important to recognize 

that numbers for this annual plant vary 

greatly in response to changing rainfall 

conditions. Additionally, the 

seasonally-flooded alkali vernal plain 

habitat which the species occupies is a 

very dynamic system. Areas that are 

suitable for the species within this 

dynamic habitat matrix change from 

year to year resulting in more variation 

in census numbers. We have expanded 

our description of the species habitat 

under the ‘‘Water and Physiological 

Requirements’’ and ‘‘Sites for 

Reproduction, Germination, and Seed 

Dispersal’’ sections of this final rule. 

13. Comment: Two peer reviewers 

submitted four comments that stated 

that population estimates presented in 

the proposed rule are out of date and 

conflicting information is presented on 

the amount of alkali habitat available for 

the species. One peer reviewer has 

observed large fluctuations in 

significant populations of the species, 

and attributes impacts to heavy discing 

and manure dumping. This reviewer 

recommended that we use current GIS 

capabilities to produce a single habitat 

model for the species and monitor 

populations more frequently. Another 

peer reviewer recommended that the 

final rule incorporate the most recent 

estimates for the species which were 

submitted to our office by two of the 

peer reviewers on January 14, 2004 

(Table 2, Bramlet and White 2004). 

Our Response: In our 2004 proposed 

critical habitat rule, we included 

population and habitat estimates for the 

species from many sources, including 

our 1998 final rule, Bramlet’s 1996 

estimates, and Glenn Lukos Associates 

estimates from 2000. There is variation 

between these estimates, which has led 

to confusion regarding how much 

suitable habitat currently exists for the 

species. In addition, as discussed in our 

response to comment 12 above, 

populations of this annual plant 

fluctuate greatly from year to year. 

When conducting our analysis of the 

MSHCP, we used current GIS 

capabilities to model suitable habitat for 

the species. This is discussed in the 

‘‘Relationship of Critical Habitat to the 

Western Riverside Multiple Species 

Habitat Conservation Plan’’ section of 

this final rule. We address impacts to 

the species from manure dumping in the 

‘‘Special Management Considerations or 

Protections’’ section of this final rule. 

Population estimates submitted by 

Bramlet and White (2004) are 

summarized as follows: (1) San Jacinto 

River populations (Habitat with 

Essential Features—Unit 1), 115,544 

individuals, 9,141 ac (3699 ha) of 

suitable habitat; (2) Upper Salt Creek 

populations (Habitat with Essential 

Features—Unit 2), 51,996 individuals, 

1,200 ac (486 ha) of suitable habitat; 

and, (3) Alberhill populations (Habitat 

with Essential Features—Unit 3), 185 

individuals, 160 ac (65 ha) of suitable 

habitat. The total population and habitat 

estimates are 167,725 individuals and 

10,501 ac (4250 ha) of suitable habitat, 

respectively. We are unable to compare 

these estimates with our habitat model 

or with the Units of habitat with 

essential features because Bramlet and 

White (2004) did not include a map of 

suitable habitat. 

14. Comment: One peer reviewer 

commented on the differences in alkali 

soil types at different population 

centers. For example, the San Jacinto 

Wildlife Area (SJWA) has Willows, 

Traver, Chino, Waukena and Domino 

soils, the upper Salt Creek area has 

Willows, Traver, and Domino soils, and 

the Alberhill population is located on 

59956 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

Willows soils. The reviewer stated that 

approximately 80 percent of the 

individuals in the SJWA were on 

Willows soils, and approximately 99 

percent of Glenn Lukos Associates 

records were on Willows soil. However, 

there is a more even distribution of the 

species across soil types at upper Salt 

Creek. 

Our Response: We appreciate the peer 

reviewer’s comments regarding alkali 

soils types at the different population 

centers and will take the information 

into account when working with the 

species and during our MSHCP 

implementation processes. See also our 

discussion of ‘‘Primary Constituent 

Elements.’’

15. Comment: Two peer reviewers 

submitted two comments that stated 

that Atriplex coronata var. notatior 

occurs in soils that are naturally 

nutrient poor. The reviewers believe 

that if natural runoff has been 

documented to provide essential 

minerals not otherwise available in the 

soil, the source should be cited. 

Our Response: We appreciate the peer 

reviewers’ comments on this matter. We 

have removed from the final rule our 

undocumented statement that natural 

runoff provides essential minerals to 

Atriplex coronata var. notatior. 

16. Comment: The three peer 

reviewers submitted seven comments 

that recommended including in the final 

rule a better explanation of the 

importance of hydrological processes to 

Atriplex coronata var. notatior. The 

reviewers stated that stands of plants 

vary in size and location with rainfall 

and inundation of alkali habitat. 

Additionally, the species is not usually 

found in inundated areas but on small 

mounds within the floodplain and along 

the upper margins of normalized local 

flooding. The reviewers stated that both 

seasonal localized flooding and 

occasional large-scale flooding are 

important to the species. Seasonal 

localized flooding would distribute 

seeds locally, while large-scale flooding 

(which occurs every 20 to 50 years) 

would distribute seeds throughout the 

habitat, resetting the system by killing 

alkali scrub and erasing the impact of 

discing and other activities. 

Our Response: We have expanded our 

discussion on the importance of 

hydrological processes to Atriplex 

coronata var. notatior under the ‘‘Water 

and Physiological Requirements’’ and 

‘‘Sites for Reproduction, Germination, 

and Seed Dispersal’’ sections of this 

final rule. 

17. Comment: Two peer reviewers 

submitted two comments that stated 

that removal of habitat and plants may 

be mandated in some portions of the 

species’ range by local fire control 

ordinances, and that discing in 

crownscale habitat, if it is related to fire 

at all, is for fire prevention rather than 

fire suppression. 

Our Response: Discing for fire 

prevention may currently occur within 

the species’ range. However, as 

discussed under the Fuels Management 

section of the MSHCP (section 6.4), the 

impacts of fuels management on the 

MSHCP Conservation Area will be 

minimized as new reserve lands and 

new developments are proposed within 

the MSHCP plan area. The MSHCP 

requires that Conservation Area 

boundaries be established to avoid 

encroachment by the brush management 

zone in areas where Reserves are created 

adjacent to existing developed areas. 

Additionally, brush management zones 

must be incorporated into the 

development boundaries when new 

development is planned adjacent to the 

MSHCP Conservation Area or other 

undeveloped areas. 

18. Comment: One peer reviewer 

stated that, based on general 

observations, seeds of the species are 

viable for greater than 5 years. 

Our Response: In our 2004 proposed 

rule, we stated that ‘‘Preliminary studies 

indicate that Atriplex coronata var. 

notatior seeds retain a relatively high 

viability for at least several seasons 

(Ogden Environmental and Energy 

Services Corporation 1993).’’ We 

appreciate the peer reviewer’s comment 

on this matter and will take the 

information into account when working 

with the species. 

19. Comment: One peer reviewer 

recommended that we review the most 

current California Natural Diversity 

Database (CNDDB) records and 

herbarium specimens from the Rancho 

Santa Ana Botanic Garden and the 

University of California, Riverside, 

before finalizing boundaries of habitat 

with essential features. 

Our Response: We have reviewed the 

most current CNDDB records and 

herbarium specimens from these two 

organizations. No new records have 

been submitted to these agencies since 

the publication of our proposed rule. 

20. Comment: Two peer reviewers 

submitted seven comments that 

suggested alterations to Unit 1 of Habitat 

with Essential Features. The reviewers 

recommended defining the Unit to 

exclude upland and watershed areas 

that are not suitable for the species, as 

well as some heavily disced, irrigated 

agricultural fields that no longer support 

the species. One peer reviewer provided 

a detailed map showing upland and 

agricultural areas that are not suitable 

habitat for the species and thus should 

not be considered habitat with essential 

features. Two peer reviewers 

recommended making it clear in the text 

of the final rule that habitat for Atriplex 

coronata var. notatior does not extend 

into Railroad Canyon. The peer 

reviewers expressed concern that the 

Service may have excluded occupied 

habitat southwest of Interstate 215 based 

on future projects rather than known 

biological or soils data. Additionally, 

they recommended that Unit 1 be 

expanded to incorporate occupied 

habitat southwest of Interstate 215. 

Our Response: We appreciate the peer 

reviewers’ area-specific expertise and 

their recommendation not to include as 

habitat with essential features specific 

upland areas and heavily disced, 

irrigated agricultural fields. We concur 

with their recommendation that these 

areas should not be considered essential 

for the species and we will make use of 

their comments and map when working 

with the species and during our MSHCP 

implementation processes. 

Additionally, we concur with the peer 

reviewers that habitat for the species 

does not extend into Railroad Canyon. 

As explained in greater detail in the 

‘‘Relationship of Critical Habitat to the 

Western Riverside Multiple Species 

Habitat Conservation Plan’’ section of 

this final rule, the occupied habitat 

areas southwest of Interstate 215 that are 

outside of our Units of habitat with 

essential features do not fall within our 

interpretation of the MSHCP 

Conservation Area. However, in 

accordance with the Additional Survey 

Needs and Procedures section of the 

MSHCP (section 6.3.2), property owners 

within the MSHCP Criteria Area must 

avoid 90 percent of those portions of the 

property that provide long-term 

conservation value for the species until 

the permitees have demonstrated that 

conservation goals for the species have 

been met. Additionally, the 

requirements of the Protection of 

Species Associated with Riparian/ 

Riverine Areas and Vernal Pools section 

of the MSHCP (section 6.1.2) may result 

in additional conservation for this 

species. 

21. Comment: One peer reviewer 

advised the Service to check the 

ownership of the San Jacinto Wildlife 

Area (SJWA) and stated that the SJWA 

is likely owned by the State of 

California or the Wildlife Conservation 

Board (WCB) rather than the California 

Department of Fish and Game (CDFG). 

Our Response: We have been 

informed by the CDFG that legal title to 

all state lands is taken in the name of 

the State of California. The CDFG is the 

State Trustee Agency for the 

management of the fish and wildlife 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59957 

resources of the State of California. As 

such, the CDFG is the State agency 

responsible for the management of the 

State lands comprising the SJWA. The 

WCB is the State agency responsible for 

the acquisition of lands in the name of 

the State of California for purposes of 

wildlife conservation and public access. 

Over the years the WCB has acquired 

virtually all the formerly private lands 

now comprising the state public lands 

of the SJWA (Paulek 2005 in litt.). 

22. Comment: Two peer reviewers 

submitted two comments asking that the 

final rule explain that the SJWA was 

purchased and is managed by the CDFG 

primarily for waterfowl conservation. 

The reviewers stated that most of the 

conservation management implemented 

on the SJWA, such as flooding ponds in 

March when Atriplex coronata var. 

notatior blooms, is beneficial to 

waterfowl but not to A. coronata var. 

notatior. The reviewers further 

recommended describing any 

management obligations the CDFG may 

have for rare plants, including A. 

coronata var. notatior, citing the 

Wildlife Area’s management plan where 

appropriate. 

Our Response: We have been 

informed by the CDFG that the SJWA 

was established in the early 1980’s as a 

mitigation site for the direct impacts of 

the State Water Project (SWP) which 

was completed in the mid-1970’s. 

Management objectives for the original 

4,800 ac (1,942 ha) of land acquired for 

SWP mitigation were directed towards 

habitat conservation and the restoration 

of historic habitat values associated 

with the San Jacinto Valley of Western 

Riverside County. To that end, initial 

habitat restoration efforts included the 

development of freshwater wetlands 

and extensive restoration of willowcottonwood riparian habitat. Wildlife 

habitats conserved in public ownership 

include Riversidian Sage Scrub, annual 

grasslands, Alkali Sink Scrub, and 

virtually the entirety of the historic 

Mystic Lake floodplain. The placement 

of the Mystic Lake floodplain in public 

ownership represents the most 

important A. coronata var. notatior 

conservation action realized to date. 

In 1995, the SJWA was included in 

the reserve lands for the Stephens’

Kangaroo Rat (SKR) pursuant to the SKR 

Habitat Conservation Plan. More 

recently the SJWA has been designated 

a principal reserve for the MSHCP 

adopted in June 2004. Over the years 

and with the recent acquisition of the 

Potrero Unit, the SJWA has grown to 

nearly 20,000 ac (8,094 ha). Pursuant to 

the conservation mandates above, the 

management objectives for the SJWA 

continue to seek the conservation of 

multiple species of plants and animals 

by maintaining and restoring a diversity 

of habitat types. 

As to the conservation of A. coronata 

var. notatior, the draft management plan 

for the SJWA designates the habitat of 

A. coronata (Alkali Sink Scrub) a 

Special Ecological Community. The 

plan recognizes the need for additional 

survey of the distribution of the species 

on the SJWA, and provides for the 

incorporation of appropriate impact 

analysis for this sensitive plant in future 

project environmental review 

procedures. The plan also recognizes 

the need to initiate additional speciesspecific research efforts with the goal of 

formulating a management prescription 

for this endangered plant (Paulek 2005 

in litt.). 

23. Comment: One peer reviewer 

stated that there appears to have been an 

overestimate in the proposed rule of the 

total acreage of Atriplex coronata var. 

notatior habitat that is located within 

waterfowl ponds. The reviewer 

requested that we review this 

information and correct the text in the 

final rule. 

Our Response: In our 2004 proposed 

critical habitat rule, we wrote that 

within the SJWA/Mystic Lake area, 

approximately 470 ac (190 ha) of habitat 

consist of duck ponds, 250 ac (100 ha) 

of which fall within the SJWA (Roberts 

and McMillan 1997). We have been 

informed by the CDFG that wetland 

habitat (freshwater marsh) on the 

10,000-ac (4,047-ha) Davis Road Unit of 

the SJWA includes approximately 470 

ac (190 ha) of marsh habitat managed 

under a moist soil management regimen. 

Typically these wetlands are flooded in 

the fall and the water is drawn off in the 

spring. In addition, up to 500 ac (202 

ha) of semi-permanent wetland at other 

locations on the Wildlife Area can be 

flooded in the early spring and 

maintained into the summer months. 

The moist soil management regimen 

(fall flooding) at several locations on the 

SJWA has been found to promote the 

germination of Atriplex coronata var. 

notatior after the spring drawdown 

(Paulek 2005 in litt.). 

24. Comment: Two peer reviewers 

submitted two comments that noted that 

the proposed rule states that CNDDB 

Element Occurrence 12 is outside of the 

SJWA, but that was incorrect and that 

the occurrence was added to the SJWA 

in 1996. 

Our Response: We appreciate the peer 

reviewer’s comment on this matter and 

will take the information into account 

when working with the species in this 

area. 

25. Comment: One peer reviewer 

stated that the survey conducted by 

Glenn Lukos Associates in 2000 was 

conducted under special circumstances. 

The reviewer stated that landowners 

suspended discing and manure 

dumping for a spring census at the 

request of their biological consultants. 

Additionally, discing and manure 

dumping resumed following the census, 

with significant impact to the 

populations. This further illustrated 

both the impact of these activities on the 

species and the species resilience to 

temporary disturbance. 

Our Response: We appreciate the peer 

reviewers’ comments with regard to the 

Glenn Lukos Associates 2000 survey, 

and we will take this information into 

account when working with the species 

and during our MSHCP implementation 

processes. We address impacts to the 

species from manure dumping, and how 

the MSHCP can address this threat, in 

the ‘‘Special Management 

Considerations or Protections’’ section 

of this final rule. 

26. Comment: Two peer reviewers 

submitted three comments that 

suggested some alterations to Unit 2 of 

Habitat with Essential Features. They 

recommended that the Unit be better 

defined to exclude upland and 

watershed areas that are not suitable for 

the species, including habitat north of 

Florida Avenue and upland slopes west 

of the San Diego Canal. One peer 

reviewer provided a detailed map to 

show which upland and agricultural 

areas are not suitable habitat for the 

species and should be excluded from 

Unit 2. Additionally, the peer reviewers 

expressed that occupied habitat known 

to occur south of the railroad tracks at 

the southern end of the Unit, and south 

of the intersection of Warren Road and 

Esplanade Avenue north of the Unit, 

should be included in Unit 2. 

Additionally, one peer reviewer 

expressed that occupied habitat known 

to occur south of the railroad tracks at 

the southern end of the Unit, and 

between Devonshire Road and Tres 

Cerritos Road within the Metropolitan 

Water District right-of-way for the San 

Diego Canal, should be included in Unit 

2. 

Our Response: We appreciate the peer 

reviewers’ comments with regard to 

excluding upland and watershed areas 

from habitat with essential features. We 

will take this information into account 

when working with the species and 

during our MSHCP implementation 

processes. As is explained in greater 

detail in the ‘‘Relationship of Critical 

Habitat to the Western Riverside 

Multiple Species Habitat Conservation 

Plan’’ section of this final rule, the 

occupied habitat area south of the 

railroad tracks at the southern end of the 

59958 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

unit that is outside of our Unit does not 

fall within our interpretation of the 

MSHCP Conservation Area. However, in 

accordance with the Additional Survey 

Needs and Procedures section of the 

MSHCP (section 6.3.2), property owners 

must avoid 90 percent of those portions 

of the property within the MSHCP 

Criteria area that provide long-term 

conservation value for the species until 

the permitees have demonstrated that 

conservation goals for the species have 

been met. Additionally, the Protection 

of Species Associated with Riparian/ 

Riverine Areas and Vernal Pools section 

of the MSHCP (i.e., section 6.1.2) may 

result in additional conservation for this 

species. 

Because we have no source on file for 

the population reported by one peer 

reviewer between Devonshire Road and 

Tres Cerritos Road within the 

Metropolitan Water District right-of-way 

for the San Diego Canal, we requested 

that the peer reviewer provide a source. 

The peer reviewer said that the surveys 

that detected these individuals were 

conducted this year and collections are 

forthcoming (David Bramlet 2005 pers. 

comm. with USFWS). This area also 

does not fall within our interpretation of 

the MSHCP Conservation Area. 

27. Comment: One peer reviewer 

recommended that the Service review 

the study of the Unit 2 area conducted 

by Recon in 1995, and incorporate 

information into the final rule to 

provide a more complete overview of 

the Unit. 

Our Response: The 1995 study by 

Recon is a fairly comprehensive survey 

of the Unit 2 area, excluding watershed 

areas to the north and west. Atriplex 

coronata var. notatior was found to be 

locally common within the study area. 

Survey results indicate a total of 33 data 

points for the species, with numbers of 

individuals at each point ranging from 

2 to 10,000 plants. 

28. Comment: One peer reviewer 

recommended the Service closely 

examine the survey methodology of the 

2001 Amec Earth and Environmental, 

Inc. census. The reviewer believes the 

estimate of 136,000 plants on 40 ac (16 

ha) in the Upper Salt Creek Wetland 

Preserve is extremely high. 

Our Response: According to the Amec 

Earth and Environmental, Inc. (2001) 

study, ‘‘methodologies were consistent 

from year to year * * * population 

estimates based on average plant 

densities were calculated for [Atriplex 

coronata var. notatior]. Ten-metersquare quadrats were randomly placed 

within a stand of [A. coronata var. 

notatior] and average plant density was 

then multiplied by the population area 

to arrive at the estimated number of 

plants per population.’’ Please also see 

our response to comment 12 above. 

29. Comment: One peer reviewer 

stated that habitat restoration is needed 

in the Upper Salt Creek Area due to 

significant hydrological impacts from 

ground surface alterations. For example, 

the reviewer explained that a drainage 

ditch was constructed in 1989 that 

drains water off of the surrounding flats, 

and has led to a reduction of Juncus sp. 

and Eleocharis sp. which were once 

abundant in the area. 

Our Response: We appreciate the peer 

reviewer’s comment and we will take 

this information into account when 

working with the species in this area 

and during our MSHCP implementation 

processes. 

30. Comment: One peer reviewer 

recommended documenting in the final 

rule instances where storm flows are 

allowed to reach Atriplex coronata var. 

notatior habitat rather than being 

collected in storm drains and directed 

into stormwater channels. The reviewer 

further explained that land conversion 

to large developed areas with storm 

drain systems fundamentally changes 

the natural hydrology within 

watersheds supporting A. coronata var. 

notatior. 

Our Response: We have participated 

in three informal consultations in the 

watershed area of Unit 2 of Habitat with 

Essential Features which have resulted 

in the maintenance of clean water flows 

to the seasonally flooded alkali vernal 

plain habitat at upper Salt Creek. Clean 

water flows from Reinhardt Canyon and 

hillside areas west of the Heartland 

Project are collected in a detention basin 

located northwest of the California 

Avenue and Florida Avenue 

intersection. These flows are then 

pumped out of the detention basin and 

travel by sheet flow to the seasonally 

flooded alkali vernal plain habitat 

(Heartland Project Description 2000; 

Heartland Memorandum of 

Understanding 2000). Once construction 

is completed for these projects, clean 

water flows from the Tres Cerritos hills 

north of the JP Ranch and Tres Cerritos 

West Projects will be collected in a 

system of pipes which will direct the 

clean water flows under the project sites 

to a spreader located south of 

Devonshire Avenue between Warren 

Road and Old Warren Road (Lockhart 

and Associates 2004; LSA Associates, 

Inc. 2004). Through informal 

consultation, the City of Hemet has 

agreed to maintain these clean water 

delivery systems. 

31. Comment: One peer reviewer 

stated that dryland farming has not been 

conducted in Hemet on any scale for 

over a decade. Additionally, the 

reviewer believed that discing 

conducted in Hemet is for fire 

prevention rather than dryland farming. 

Our Response: We have been 

informed by the City of Hemet that 

weed abatement notifications for fire 

prevention are not sent to properties 

within the MSHCP Criteria Area 

(Masyczek 2005 in litt.). 

32. Comment: Two peer reviewers 

submitted four comments that suggested 

alterations to Unit 3 of Habitat with 

Essential Features. They recommended 

that the unit be better defined to 

exclude the area north of Nichols Road 

and include the field west and 

southwest of the unit due to the 

presence of Willows soils. One peer 

reviewer provided a detailed map to 

show these recommended changes. 

Our Response: First, we appreciate 

the peer reviewers’ comments with 

regard to excluding the area north of 

Nichols Road from habitat with 

essential features. The text in our 

proposed rule stated that ‘‘the northern 

boundary [of Unit 3] is defined by 

Nichols Road.’’ The inclusion of the 

area north of Nichols Road in the 

critical habitat unit was a mapping error 

resulting from the presence of mapped 

Willows soils in that area. Due to the 

presence of dense riparian habitat, we 

concur with the peer reviewers that 

habitat for the species does not extend 

north of Nichols Road. Second, we have 

reviewed the map provided by peer 

reviewers of the field in question 

located west and southwest of the Unit 

of habitat with essential features. 

According to official soil survey data 

(United States Department of 

Agriculture Soil Conservation Service 

1971), the soil types in this area are 

Garretson very fine sandy loam and 

Arbuckle loam. However, this area is 

included in our interpretation of the 

MSHCP Conservation Area (as described 

in greater detail in the ‘‘Relationship of 

Critical Habitat to the Western Riverside 

Multiple Species Habitat Conservation 

Plan’’ section of this final rule) and 

should be conserved under the MSHCP. 

33. Comment: Two peer reviewers 

submitted two comments that 

recommended adding to the final rule 

that it is likely the Alberhill Creek 

population is larger than currently 

known. Additionally, the reviewer 

stated that information for this 

occurrence is limited to a few 

collections and no surveys of potential 

habitat have been conducted. 

Our Response: We appreciate the peer 

reviewer’s comment and we will take 

this information into account when 

working with the species in this area 

and during our MSHCP implementation 

processes. 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59959 

Public Comments 

34. Comment: One commenter 

submitted four comments that 

supported our decision to exclude 

critical habitat based on the presence of 

an existing HCP. The commenter stated 

that the MSHCP provides protection for 

covered species and sensitive habitats, 

including Atriplex coronata var. 

notatior and its habitat. The commenter 

expressed concern that the designation 

of critical habitat within HCP 

boundaries would undermine 

partnerships with landowners that were 

developed during the planning process. 

The commenter further stated that 

landowners participated in the regional 

MSHCP planning effort in part to 

prevent the inefficient and ineffective 

project-by-project regulation that is 

associated with designated critical 

habitat, and that designating critical 

habitat in this area would subject 

landowners to two different regulatory 

processes that would be a financial 

burden. 

Our Response: As stated in the 

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

Act’’ section of the proposed rule, we 

agree that the MSHCP benefits the 

conservation of Atriplex coronata var. 

notatior and that the benefits of 

excluding lands covered under the 

MSHCP outweigh the benefits of 

including such lands. We also recognize 

that the designation of critical habitat 

may remove incentives to participate in 

the HCP processes, in part because of 

added regulatory uncertainty, increased 

costs to plan development and 

implementation, weakened stakeholder 

support, delayed approval and 

development of the plan, and greater 

vulnerability to legal challenge. We 

believe HCPs are one of the most 

important tools for reconciling land use 

with the conservation of listed species 

on non-Federal lands. We look forward 

to working with HCP applicants to 

ensure that their plans meet the 

issuance criteria and that the 

designation of critical habitat on lands 

where an HCP is in development does 

not delay the approval and 

implementation of their HCP. 

35. Comment: One commenter 

submitted two comments that disagreed 

with our decision to exclude critical 

habitat based on the presence of an 

existing HCP. The commenter stated 

that all agencies are not signatories to 

the MSHCP, and therefore critical 

habitat should be identified for those 

projects and agencies operating outside 

the MSHCP. The commenter was 

concerned that the reason for habitat 

exclusions did not have a scientific 

basis. 

Our Response: See the response to 

Peer Reviewer Comment 3 above. 

36. Comment: One commenter 

submitted two comments stating that 

threats to the species were not 

adequately addressed in the proposed 

rule and the MSHCP. The commenter 

recommended additional discussion on 

the threats of manure spreading and 

non-seasonal flows which may result 

from future development. 

Our Response: See the response to 

Peer Reviewer Comment 9 above. 

37. Comment: One commenter stated 

that failure to designate critical habitat 

within HCP boundaries would be a 

disincentive to the participation of their 

organizations in the development of 

future HCPs. 

Our Response: It has been our 

experience that many different 

stakeholders participate in the creation 

of an HCP. We appreciate the 

commenter’s participation in HCP 

planning efforts and urge them to 

continue to participate in future HCP 

efforts. However, it has been our 

experience that the designation of 

critical habitat in HCP areas removes 

incentives for most stakeholders to 

participate in the HCP process due to 

added regulatory uncertainty, increased 

costs to plan development and 

implementation, delayed approval and 

development of the plan, and greater 

vulnerability to legal challenge. 

38. Comment: One commenter stated 

that it is incumbent upon the Service to 

designate areas as critical habitat if they 

are identified as ‘‘essential habitat,’’

based on the definition of critical 

habitat. 

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

Act allows us to consider the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

Areas identified as having features 

essential for the conservation of the 

taxon may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such an area as critical habitat 

will result in the extinction of the 

species. We have determined that the 

benefits of exclusion of habitat with 

essential features covered by the 

MSHCP outweigh the benefits of 

inclusion. See ‘‘Exclusions Under 

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

detailed discussion. 

In addition, the Service in this and 

other notices has been using the term 

‘‘essential habitat’’ as shorthand for 

‘‘areas eligible for designation as critical 

habitat’’. We recognize that this might 

cause confusion with the provisions of 

the Act that areas unoccupied at the 

time of listing may be designated by the 

Secretary as ‘‘essential to the 

conservation of the species’’ and so 

included in a critical habitat 

designation. The use of the term 

‘‘essential habitat’’ in this and past 

notices is not a determination by the 

Service or the Secretary that this habitat 

is, within the terms of the Act, essential 

to the conservation of the species, 

unless the use of the term is 

accompanied by an express statement 

that the Secretary has made such a 

determination. In either event, however, 

we have authority under section 4(b)(2) 

of the Act to exclude any such area. 

39. Comment: One commenter stated 

that the reserves proposed under the 

MSHCP are fragmented and the 

connectivity between units of habitat 

with essential features is lacking. 

Our Response: The three Units of 

Habitat with Essential Features for 

Atriplex coronata var. notatior include 

areas of seasonally-flooded alkali vernal 

plain habitat that are currently naturally 

isolated from each other. The MSHCP 

provides for a connection through 

different habitat types between Units 1 

and 3. Unit 2 falls within proposed 

MSHCP noncontiguous habitat block 7 

which is not connected to the larger 

MSHCP Conservation Area. However, 

this habitat block is currently isolated 

from other natural areas by existing 

development and agricultural lands. 

Efforts are being made on a local level 

in order to prevent fragmentation of 

habitat within MSHCP noncontiguous 

habitat block 7. For example, the City of 

Hemet has adopted an Interim Urgency 

Ordinance to ensure that development 

efforts within the MSHCP Criteria Area 

are coordinated such that habitat 

conserved within the criteria area does 

not become fragmented, thereby 

allowing the City to meet their 

obligations under the MSHCP 

(Ordinance No. 1742). 

40. Comment: One commenter stated 

that the Service should consider 

multiple variables (e.g., life strategy, 

disturbance probability, potential 

habitat, population size, recovery from 

disturbance, habitat suitability, 

predation, and competition) when 

determining the size of plant 

conservation areas and critical habitat 

units. Additionally, this commenter 

stated that the purpose of critical habitat 

designation is not only to prevent 

extinction but to facilitate recovery, as 

supported by case law. The commenter 

stated that the critical habitat proposal 

failed to include areas of unoccupied 

suitable habitat that would provide for 

recovery opportunities, including 

59960 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

genetic exchange and migration in 

response to climate change. 

Our Response: As described in the 

‘‘Critical Habitat’’ portion of this final 

rule, a number of policy and regulatory 

guidelines and standards provide the 

Service with criteria, procedures, and 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists, to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials, expert opinions, 

or personal knowledge. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

what we know at the time of 

designation. 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, critical habitat designations do 

not signal that habitat outside the 

designation is unimportant or may not 

be required for recovery. Moreover, we 

believe this HCP, and HCPs generally, 

offer greater benefits to all aspects of the 

conservation of listed species, including 

to recovery, than a critical habitat 

designation. We also believe that this 

action complies with all applicable 

laws. 

Public Comments on the Draft Economic 

Analysis 

41. Comment: Three commenters state 

that the Draft Economic Analysis (DEA) 

quantifies costs for projects that do not 

contain occupied habitat for Atriplex 

coronata var. notatior. Two of the 

commenters also question why costs not 

related to protection of A. coronata var. 

notatior or its habitat are presented in 

Table 6 in Section 5.1. 

Our Response: As described in 

Section 5.1, Table 6 of the DEA, past 

development projects outside of the 

footprint of the proposed critical habitat 

designation have impacted the species 

habitat within the lands proposed for 

designation. In this scenario, the DEA 

appropriately quantifies the costs of the 

project modifications implemented at 

the offsite development projects to 

protect the species and habitat within 

the proposed designation. This is 

consistent with the scope of analysis as 

described in Section 1.2: the analysis 

considers the cost of species and habitat 

conservation, not just impacts to 

projects located within occupied 

habitat. 

The information on the costs of vernal 

pool conservation not related to 

protecting Atriplex coronata var. 

notatior or habitat are provided in 

Section 5.1, Table 6 as these activities 

provide insight into the types and costs 

of project modifications implemented to 

protect vernal pool species and habitat 

in general. The conservation activities 

and associated dollar amounts described 

in the table, however, are provided only 

for context and are not captured in the 

quantitative results of the DEA. 

42. Comment: Two commenters 

question the framework for 

development effects, as discussed in 

Section 2.2.2.1 of the DEA. These 

commenters state that the DEA is an 

analysis of the impacts of the California 

Environmental Quality Act (CEQA) and 

the Western Riverside County MSHCP, 

not solely of designating critical habitat. 

Our Response: Coextensive effects, as 

defined in Section 1.2 of the DEA, may 

include impacts associated with 

overlapping protective measures of 

other Federal, State, and local laws that 

aid habitat conservation in the areas 

proposed for designation. Because 

habitat conservation efforts affording 

protection to a listed species likely 

contribute to the efficacy of the critical 

habitat efforts, the impacts of these 

actions are considered relevant for 

understanding the full effect of the 

proposed critical habitat designation. 

43. Comment: One commenter 

suggests that information on specific, 

planned development projects should 

be reviewed. 

Our Response: Throughout the 

development of the DEA, past and 

current development projects within the 

potential critical habitat area were 

researched. As described in Table 6 of 

Section 5.1, two development projects 

are currently in progress and the 

development companies were contacted 

to determine the details and status of 

the projects. The DEA captures the 

impacts of mitigating these projects 

based on information obtained. Data are 

not available on all potential 

development projects that may occur 

during the 20-year forecast period; thus, 

the analysis estimates and applies 

average costs of impacts to development 

on a per-acre rather than per-project 

basis where specific information is 

unavailable. 

44. Comment: Multiple comments 

state that the DEA fails to evaluate the 

cost of property for conservation 

acquisition or the costs of implementing 

and maintaining of conservation 

easements. Specifically, one comment 

asserts that the methodology used to 

quantify development impacts is 

questionable as it does not quantify the 

cost of purchasing reserves for the 

MSHCP. The comment further states 

that while the MSHCP reserve 

boundaries are not yet proposed, land 

will have to be purchased or obtained 

through mitigation dedication and 

projects may have to be modified to 

avoid impacts to vernal pools and 

vernal pool watersheds. The comment 

also states the DEA fails to analyze the 

potential loss of developable private 

lands or the potential cost of transfer of 

ownership of lands for mitigation. 

Our Response: As acknowledged by 

the commenter, the MSHCP does not 

describe the exact location or timing of 

each acre of private land to be acquired 

for the MSHCP reserve. However, as 

described in Section 5.2.4.1 of the DEA, 

current land use and population growth 

rates were available from the Riverside 

County to spatially forecast future 

development within the proposed 

critical habitat units. Section 2.2.2.1 of 

the DEA describes the model applied to 

estimate impacts to development using 

these data. The DEA assumes that 

development is permitted in potential 

critical habitat areas if appropriate 

project modifications and/or mitigation 

activities are undertaken, and/or 

mitigation fees paid. That is, the 

analysis does not assume that land is 

lost to development, but instead that 

development occurs with mitigation. 

Quantified mitigation efforts include 

the collection of a mitigation fee from 

future development within the 

boundaries of the MSHCP. These funds 

will be used by the County to finance 

the future acquisition of lands for the 

MSHCP reserve. The impact of these 

fees is captured in the DEA (Section 

5.2.5). Further, as outlined in Section 

5.2.2, other conservation efforts 

associated with development projects 

have been quantified in the DEA, 

including purchase of on-site or off-site 

mitigation lands through restoration and 

enhancement; habitat creation; 

purchasing preservation credits from a 

conservation bank; or purchasing vernal 

pool habitat from a private land owner 

and preserving wetted acreage. To 

account for a variety of potential 

mitigation ratios and mitigation 

measures, the DEA presents impacts of 

Atriplex coronata var. notatior 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59961 

conservation efforts on development 

projects as a range. That is, the DEA 

reports the full range of costs associated 

with a combination of mitigation ratios 

and conservation efforts that may be 

recommended to offset impacts of 

development to the species and habitat. 

45. Comment: One commenter states 

the DEA should justify why it assumes 

that habitat protection under the 

MSHCP will not affect existing 

development patterns. The comment 

also questions how the habitat with 

essential features will be conserved if all 

of the potential developments are 

approved. 

Our Response: It is uncertain which 

specific areas of the habitat with 

essential features may be developed 

during the forecast period, when those 

areas may be developed, what 

mitigation would be recommended, and 

if the County would be interested in 

acquiring a portion of that area for the 

MSHCP reserve. By assuming that all 

future development is allowed in 

habitat areas with appropriate project 

modifications and/or mitigation 

activities, the DEA captures the cost of 

modifying development projects to 

protect the plant and its habitat. 

46. Comment: According to one 

comment, the DEA fails to include 

impacts to the proposed expansion of 

the Ramona Expressway and the 

construction of a dam across the San 

Jacinto River. 

Our Response: The DEA quantifies 

economic impacts to specific road 

projects where information is available 

(Section 6.1.1.1) and applies a generic 

impact estimate future road projects for 

periods where project-specific 

information is not known. California 

Department of Transportation (Cal 

Trans) was contacted during the 

development of the DEA to identify 

future transportation projects planned 

in and around the essential habitat 

areas. While the proposed expansion of 

the Ramona Expressway was not 

explicitly identified by Cal Trans as a 

project during its 2006–2009 planning 

period, the DEA captures the economic 

impacts associated with future project 

in its generic forecast of impacts to road 

projects generally if the Ramona 

Expressway expansion occurs during 

the 2010–2025 period. 

47. Comment: One commenter states 

that the DEA fails to consider that the 

main purpose of the SJWA is waterfowl 

management. The comment further 

suggests that the Reserve Manager 

should have been contacted to 

determine the budget for Atriplex 

coronata var. notatior conservation 

efforts and opines that these costs 

should be offset by the benefits of 

maintaining these sites. In addition, the 

California Native Plant Society (CNPS) 

and Center for Biological Diversity 

(CBD) state A. coronata var. notatior 

conservation is not explicitly 

considered in the operating budget of 

the Wildlife Area and therefore, costs of 

Wildlife Area management should not 

be included in the DEA. The 

commenters further state that, while the 

operation of the Wildlife Area benefits 

some A. coronata var. notatior 

populations, management has also 

damaged the species in the past, for 

example, inundating habitat, which 

reduces the potential for recovery. The 

DEA fails to evaluate these damages. 

Our Response: As described in 

Section 6.6, the DEA acknowledges that 

the SJWA was established as mitigation 

for the State Water Project, and that the 

primary purpose of the Wildlife Area 

was to conserve the floodplain 

ecosystem and species’ habitat. In 

addition, the manager of the Wildlife 

Area was contacted regarding costs of 

conservation activities specifically 

benefiting A. coronata var. notatior. As 

quantified in the DEA, the SJWA spends 

approximately $5,000 every other year 

to protect vernal playa habitat. 

Information was also provided on the 

annual number of recreational user 

days, which were valued and used to 

quantify the net economic impacts of 

Wildlife Area management in the DEA. 

No information was identified regarding 

the impact of past damages to A. 

coronata var. notatior habitat resulting 

from Wildlife Area management. The 

DEA does, however, capture the costs of 

monitoring and maintaining the habitat, 

which is assumed to include avoiding 

such damages in the future. 

48. Comment: Two commenters state 

the cost model used in the DEA to 

estimate the administrative cost of 

section 7 consultation is highly inflated. 

Our Response: As described in 

Section 2.2 of the DEA, the cost model 

is based on a survey of Federal agencies 

and Service Field Offices across the 

country and the costs are believed to be 

representative of the typical range of 

costs of the section 7 consultation 

process. Throughout the development of 

the DEA, stakeholders were asked 

whether the range of estimated 

consultation costs was reasonable. In 

the case that stakeholders anticipated 

higher or lower costs, this improved 

information would be applied in the 

DEA. No stakeholders indicated, 

however, that the range of costs applied 

in the DEA was inappropriate. 

49. Comment: A comment provided 

by the CNPS and CBD states that the 

cost estimates of species conservation as 

provided in the DEA conflict with the 

cost estimated in the Western Riverside 

MSHCP for this species alone, which is 

much less. Therefore, either the DEA or 

the MSHCP contain errors in its impact 

estimates. 

Our Response: Section 8.2.1 of the 

MSHCP describes the costs of 

implementing the plan, including costs 

to acquire reserve lands, manage and 

monitor the reserve area, and general 

administration of the MSHCP. The 

County estimates these costs will total 

almost $1 billion during the first 25 

years of the MSHCP. This impact 

estimate, however, is not directly 

comparable to that in the DEA as the 

policy actions being analyzed are 

different. The MSHCP estimates the cost 

of acquiring and managing its reserve 

area and conservation actions for the 

multiple species covered under the 

plan. Further, the geographic scope of 

the MSHCP and the potential critical 

habitat for A. coronata var. notatior are 

different. 

50. Comment: Two commenters 

question the use of ‘‘low income 

farmers’’ as an example of a group that 

may be adversely affected by species 

conservation in Section 1.1. Another 

comment states that the report appears 

biased because it implies that low 

income farmers are the principal 

landowners within the habitat with 

essential features being reviewed, and 

that the report does not provide a 

review of the economic status of the 

private landowners in the affected areas. 

Our Response: The DEA considers the 

status of public and private land 

ownership; however, the identity of 

every private landowner within the 

15,232 acres of essential habitat is 

unknown. As described in Section 6.8, 

approximately one-half of all habitat 

with essential features is classified as 

agriculture land, and this agriculture 

land represents 60 percent of the 

developable acres. Considering farmers 

comprise a large percentage of 

landowners within the habitat with 

essential features and developable land, 

the use of farmers as an example of a 

group of individuals that could be 

impacted in Section 1.1 is considered 

appropriate. 

51. Comment: One commenter 

requests that more detail be provided on 

local regulations that protect A. 

coronata var. notatior within the 

County. 

Our Response: Section 4 of the DEA 

includes discussion of the relevant 

Federal, State, and local regulations that 

provide protection to the species and its 

habitat. 

52. Comment: One commenter states 

that the description of the Clean Water 

Act in Section 4.2.1 does not include 

59962 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

the proposed Special Area Management 

Plan (SAMP) for the San Jacinto River 

watershed. 

Our Response: Section 4.0 provides a 

summary of important regulations that 

provide protection for the plant and its 

habitat but does not provide an 

exhaustive list of all regulatory 

protection. The proposed SAMP may 

streamline the Section 404 permitting 

process in the future, but it is not 

expected to influence the types of 

project modifications and mitigation 

implemented to protect A. coronata var. 

notatior and its habitat as quantified in 

the DEA. 

53. Comment: Four commenters 

stated that the DEA should include an 

analysis of benefits, such as flood 

protection, watershed management, and 

open space. The commenters further 

stated that there is a benefit of having 

critical habitat in place should the 

Western Riverside MSHCP falter in its 

conservation mandate. Two of the 

commenters also stated the DEA fails to 

consider non-market values. One 

comment noted that large portions of 

the existing occupied habitat outside of 

the San Jacinto Valley Wildlife Area are 

being disked and that this will result in 

considerable costs to restore the habitat 

for this species. Thus, the beneficial 

costs of extant habitat that will not 

require restoration should be carefully 

evaluated. 

Our Response: In the context of a 

critical habitat designation, the primary 

purpose of the rulemaking is to 

designate areas in need of special 

management that are essential to the 

conservation of listed species. 

The designation of critical habitat 

may result in two distinct categories of 

benefits to society: (1) Use; and (2) nonuse benefits. Use benefits are simply the 

social benefits that accrue from the 

physical use of a resource. Visiting 

critical habitat to see endangered 

species in their natural habitat would be 

a primary example. Non-use benefits, in 

contrast, represent welfare gains from 

‘‘just knowing’’ that a particular listed 

species’ natural habitat is being 

specially managed for the survival and 

recovery of that species. Both use and 

non-use benefits may occur 

unaccompanied by any market 

transactions. In addition, there is no 

general agreement on how to value ‘‘just 

knowing’’ benefits. 

A primary reason for conducting this 

analysis is to provide information 

regarding the economic impacts 

associated with a proposed critical 

habitat designation. Section 4(b)(2) of 

the Act requires the Secretary to 

designate critical habitat based on the 

best scientific data available after taking 

into consideration the economic impact, 

and any other relevant impact, of 

specifying any particular area as critical 

habitat. Economic impacts can be both 

positive and negative and by definition, 

are observable through market 

transactions. 

Where data are available, this analysis 

attempts to recognize and measure the 

net economic impact of the proposed 

designation. For example, if the fencing 

of a species’ habitat to restrict motor 

vehicles results in an increase in the 

number of individuals visiting the site 

for wildlife viewing, then the analysis 

would recognize the potential for a 

positive economic impact and attempt 

to quantify the effect (e.g., impacts that 

would be associated with an increase in 

tourism spending by wildlife viewers). 

In this particular instance, the DEA 

quantified the net economic impact of 

the proposed designation taking into 

account additional recreation activities. 

This is described in Section 6.6 (CDFG, 

San Jacinto Wildlife Area) of the DEA. 

While the Act requires us to 

specifically consider the economic 

impact of a designation, it does not 

require us to explicitly consider in 

economic terms, or in an economic 

analysis, any broader social benefits (or 

costs) that may be associated with the 

designation where these are not readily 

monetized. 

54. Comment: Four commenters 

stated that costs should be allocated 

among all the threatened and 

endangered species that benefit from the 

efforts. 

Our Response: Coextensive effects as 

quantified in the DEA may also include 

impacts associated with overlapping 

protective measures of other Federal, 

State, and local laws that aid habitat 

conservation in the areas proposed for 

designation. We note that in past 

instances, some of these measures have 

been precipitated by the listing of the 

species and impending designation of 

critical habitat. Because habitat 

conservation efforts affording protection 

to a listed species likely contribute to 

the efficacy of the critical habitat 

designation efforts, the impacts of these 

actions are considered relevant for 

understanding the full effect of the 

proposed critical habitat designation. 

Enforcement actions taken in response 

to violations of the Act, however, are 

not included. 

55. Comment: Two commenters stated 

that the DEA does not make a 

distinction between the cost of listing 

the species under the ESA versus the 

cost of designating critical habitat. 

Our Response: This analysis identifies 

those economic activities believed to be 

most likely to threaten Atriplex 

coronata var. notatior and its habitat 

and, where possible, quantifies the 

economic impact to avoid, mitigate, or 

compensate for such threats within the 

boundaries of the essential habitat area. 

In instances where critical habitat is 

being proposed after a species is listed, 

some future impacts may be 

unavoidable, regardless of the final 

designation and exclusions under 

4(b)(2). However, due to the difficulty in 

making a credible distinction between 

listing and critical habitat effects within 

critical habitat boundaries, this analysis 

considers all future conservation-related 

impacts to be coextensive with the 

designation. 

56. Comment: Four commenters 

suggested that the economic analysis 

should be limited to the proposed 

critical habitat designation, zero acres, 

rather than the 15,232 acres of essential 

habitat, which comprise lands excluded 

from designation. 

Our Response: In the proposed critical 

habitat rule we considered 15,232 acres 

of habitat essential for Atriplex coronata 

var. notatior, but we excluded that 

habitat from designation due to the 

presence of an existing habitat 

conservation plan under section 4(b)(2) 

of the Act. However, we recognized that 

we might receive comments on the 

proposed rule that would cause us to 

reassess our exclusions, and for this 

reason we conducted an economic 

analysis on the essential habitat. In 

addition, the Act requires us to consider 

economic impacts. The fact that we 

have proposed in advance to exclude 

areas for other reasons does not exempt 

us from this requirement. 

57. Comment: Three commenters 

submitted requests that the 14 day 

comment period on the Draft Economic 

Analysis be extended to 30 or 60 days 

and four commenters stated that the 

Service did not offer a reasonable time 

period for review of the Draft Economic 

Analysis. 

Our Response: We were unable to 

extend the comment period on the Draft 

Economic Analysis due to the lawsuit 

settlement deadline for the publication 

of the final critical habitat rule. 

58. Comment: Two commenters stated 

that the essential habitat areas are not 

protected by the MSHCP but are within 

the MSHCP Criteria Area which directs 

potential conservation. They further 

stated that a full year after the issuance 

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

MSHCP, manure dumping and habitat 

conversion such as sod farming, 

continues to directly impact the species. 

Our Response: The MSHCP is a large 

and complex habitat conservation plan, 

and its implementation is expected to 

take time. In its first year of 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59963 

implementation, the MSHCP has 

already resulted in conservation and 

management actions that address threats 

to Atriplex coronata var. notatior on 

private lands. We address this issue 

further under the ‘‘Special Management 

Considerations or Protections’’ section 

of this final rule. 

59. Comment: One commenter stated 

that although the Service mapped 

15,232 acres of essential habitat for the 

species, the MSHCP proposes the 

conservation of only 6,900 acres of 

suitable habitat for the species. 

Moreover, our essential habitat 

coincided with the lands already 

conserved (Public/Quasi-Public Lands 

(PQP) and lands to be conserved 

(conceptual reserve design) under the 

MSHCP. The watershed lands in Salt 

Creek identified as essential habitat are 

expected to be developed and the 

MSHCP provides guidelines to maintain 

water quality and quantity to occupied 

seasonal wetlands. Thus, there is not a 

conflict between the proposed 

conservation of Atriplex coronata var. 

notatior under the MSHCP and the 

essential habitat identified in the 

proposed rule for the following reasons: 

(1) Although we did not use the habitat 

model used in the MSHCP, all essential 

habitat is protected by the MSHCP; (2) 

the 6,900 acres of suitable habitat for 

Atriplex coronata var. notatior is 

embedded within the much larger 

MSHCP Conservation Area; (3) 

approximately 77 percent of the 

essential habitat for Atriplex coronata 

var. notatior (11,760 acres of the 15,232 

acres of essential habitat) would be 

protected on existing PQP lands and 

conceptual reserve design lands within 

the Western Riverside County MSCHP 

at San Jacinto River, Mystic Lake, Salt 

Creek, and Alberhill Creek, and (4) 

approximately 23 percent of the 

essential habitat (3,473 ac, 1405 ha) 

provides the watershed for the MSHCP 

Conservation Area at Unit 2. These 

watershed lands are not part of the 

MSHCP Conservation Area and are not 

known to be occupied by A. coronata 

var. notatior. The MSHCP speciesspecific Objectives for A. coronata var. 

notatior and the Guidelines Pertaining 

to the Urban/Wildlands Interface will 

ensure that floodplain processes will be 

maintained and the quantity and quality 

of runoff discharged to the MSHCP 

Conservation Area will not be altered in 

an adverse way when compared with 

existing conditions such that the 

essential functions and values that these 

watershed areas provide for the species 

will be maintained. 

Our Response: When we mapped 

essential habitat for Atriplex coronata 

var. notatior, we did not use the habitat 

model used in the MSHCP for the 

species. The MSHCP defines suitable 

habitat for the species as consisting of 

grasslands on alkali soils, playas, and 

vernal pools within the Mystic Lake, 

San Jacinto River, and Salt Creek areas. 

When we mapped essential habitat for 

the species, we looked at habitat as 

described in the primary constituent 

elements of this rule, and our essential 

habitat includes watershed areas that 

were not captured in the MSHCP’s 

definition of suitable habitat for Atriplex 

coronata var. notatior. 

60. Comment: One commenter stated 

that in the MSHCP’s proposal to 

conserve 6,900 acres of suitable habitat 

for the species, there is no consideration 

of conserving occupied versus potential 

habitat and asked for an explanation of 

how the MSHCP will conserve essential 

habitat for the species. 

Our Response: MSHCP speciesspecific objective 2 for Atriplex 

coronata var. notatior requires that the 

locality at Alberhill creek and the three 

Core Areas for the species located along 

the San Jacinto River from the vicinity 

of Mystic Lake southwest to the vicinity 

of Perris and in the upper Salt Creek 

drainage west of Hemet, be included 

within the MSHCP Conservation Area. 

For further explanation of how the 

MSHCP will conserve essential habitat 

for the species, see the ‘‘Relationship of 

Critical Habitat to the Western Riverside 

Multiple Species Habitat Conservation 

Plan’’ section below. 

61. Comment: One commenter 

expressed concern that the Conservation 

Areas are the only areas that will be 

conserved through the MSHCP and that 

all habitat enhancement, revegetation, 

and restoration will occur only within 

these areas. 

Our Response: The ‘‘Protection of 

Species Associated with Riparian/ 

Riverine Areas and Vernal Pools’’ and 

‘‘Additional Survey Needs and 

Procedures’’ sections of the MSHCP may 

result in additional conservation and 

habitat enhancement, revegetation, and 

restoration for Atriplex coronata var. 

notatior. To date, these policies have 

resulted in the submittal of two DBESPs 

that will result in conservation and 

restoration activities that may benefit A. 

coronata var. notatior (Lockhart 2004; 

LSA Associates Inc. 2005). For these 

two projects, the DBESPs propose to 

introduce the species into restored and 

created vernal pool habitat north of the 

upper Salt Creek populations once 

initial success criteria have been met, 

even though the proposed actions that 

resulted in impacts to vernal pool 

habitat did not directly affect A. 

coronata var. notatior. 

Summary of Changes From Proposed 

Rule 

We have reviewed public comments 

received on the proposed designation of 

critical habitat for Atriplex coronata var. 

notatior and the related draft economic 

analysis. While we have made no major 

changes to the rule, we have made a 

minor administrative change: Instead of 

adding text pertaining to A. coronata 

var. notatior to 50 CFR 17.97 as 

proposed, we are adding text to 50 CFR 

17.96 instead. Since publication of the 

proposed rule, we have used § 17.97 for 

a different purpose. Consistent with the 

proposed rule, no lands are being 

designated as critical habitat for A. 

coronata var. notatior because all 

habitat with features essential to the 

conservation of this taxon are within the 

conservation area of the approved 

Western Riverside MSHCP, and are 

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

the Act. However, we have incorporated 

detailed information on the MSHCP and 

its associated documents as they relate 

to A. coronata var. notatior into this rule 

under the section titled ‘‘Relationship of 

Critical Habitat to the Western Riverside 

Multiple Species Habitat Conservation 

Plan.’’

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 

species. ‘‘Conservation’’ means the use 

of all methods and procedures that are 

necessary to bring an endangered or a 

threatened species to the point at which 

listing under the Act is no longer 

necessary. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

59964 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

designation does not allow government 

or public access to private lands. 

To be included in a critical habitat 

designation, the habitat within the area 

occupied by the species must first have 

features that are ‘‘essential to the 

conservation of the species.’’ Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

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

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2).) Accordingly, when 

the best available scientific data do not 

demonstrate that the conservation needs 

of the species so require, we will not 

designate critical habitat in areas 

outside the geographic area occupied by 

the species at the time of listing. An area 

currently occupied by the species but 

was not known to be occupied at the 

time of listing will likely be considered 

essential to the conservation of the 

species and, therefore, included in the 

critical habitat designation. 

Our Policy on Information Standards 

Under the Endangered Species Act, 

published in the Federal Register on 

July 1, 1994 (59 FR 34271), and Section 

515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (P.L. 106–554; H.R. 

5658) and the associated Information 

Quality Guidelines issued by the 

Service, provide criteria, establish 

procedures, and provide guidance to 

ensure that decisions made by the 

Service represent the best scientific data 

available. They require Service 

biologists to the extent consistent with 

the Act and with the use of the best 

scientific data available, to use primary 

and original sources of information as 

the basis for recommendations to 

designate critical habitat. When 

determining which areas are critical 

habitat, a primary source of information 

is generally the listing package for the 

species. Additional information sources 

include the recovery plan for the 

species, articles in peer-reviewed 

journals, conservation plans developed 

by States and counties, scientific status 

surveys and studies, biological 

assessments, or other unpublished 

materials and expert opinion or 

personal knowledge. All information is 

used in accordance with the provisions 

of Section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (P.L. 106–554; 

H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

what we know at the time of 

designation. 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, critical habitat designations do 

not signal that habitat outside the 

designation is unimportant or may not 

be required for recovery. 

Areas that support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

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

the regulatory protections afforded by 

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

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Methods 

As required by section 4(b)(1)(A) of 

the Act, we used the best scientific data 

available in determining those areas that 

contain the features essential to the 

conservation of Atriplex coronata var. 

notatior. We utilized data and 

information contained in, but not 

limited to, the proposed critical habitat 

rule (69 FR 59844), the proposed listing 

rule (59 FR 64812), the final listing rule 

(63 FR 54975), CNDDB, reports 

submitted by biologists holding section 

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

and documents on file in the Service’s 

field offices, and communications with 

experts outside the Service who have 

extensive knowledge of the species and 

its habitat. Additionally, we used 

information contained in comments 

received by December 6, 2004, which 

were submitted on the proposed critical 

habitat designation (69 FR 59844), and 

comments received by September, 14, 

2005, submitted on the draft economic 

analysis (70 FR 51739). 

After all the information about the 

known occurrences of Atriplex coronata 

var. notatior was compiled, we created 

maps indicating the habitat areas with 

essential features associated with each 

of the occurrences. We used the 

information outlined above to aid in this 

task. Theses areas were mapped using 

GIS and refined using topographical and 

aerial map coverages. These areas were 

further refined by discussing each area 

with Service biologists familiar with 

each area, and by site visits to all three 

areas. After creating GIS coverage of the 

areas, we created legal descriptions of 

those areas. We used a 100-meter grid to 

establish Universal Transverse Mercator 

(UTM) North American Datum 27 (NAD 

27) coordinates which, when connected, 

provided the boundaries of the areas. 

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 are 

required to base critical habitat 

determinations on the best scientific 

data available and to consider those 

physical and biological features 

(primary constituent elements (PCEs)) 

that are essential to the conservation of 

the species, and that may require special 

management considerations and 

protection. These include, but are not 

limited to: space for individual and 

population growth and for normal 

behavior; food, water, air, light, 

minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The biological and physical features 

which are essential to the conservation 

of Atriplex coronata var. notatior, i.e., 

the PCEs, are based on specific 

components that provide for the 

essential biological requirements of the 

species as described below. 

Space for Individual and Population 

Growth, and for Normal Behavior 

Atriplex coronata var. notatior 

occupies seasonally-flooded alkali 

vernal plain habitat, which includes 

alkali playa, alkali scrub, alkali vernal 

pool, and alkali annual grassland 

components (Interface Between Ecology 

and Land Development in California 

1993, Service 1994, Madrono 1996). The 

species occurs in areas where this 

habitat is associated with the Willows 

soil series, and to a lesser extent, the 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59965 

Domino, Traver, Waukena, and Chino 

soils series (Service 1994, Knecht 1971). 

Seasonal wetlands that the species 

occupies are dependent upon adjacent 

transitional wetlands and marginal 

wetlands within the watershed (Service 

1994). These areas do not occur in great 

abundance, and in recent years have 

been degraded and lost to agriculture, 

soil chemistry alteration resulting from 

the dumping of manure, discing for fire 

prevention, off-road vehicle use, 

grazing, flood control projects, and 

development, including pipeline 

projects, transportation projects, and 

residential development projects 

(Service 1994). 

The four locations where the taxon is 

known to occur are no longer pristine 

and undisturbed. However, the 

wetlands and associated hydrology 

continue to provide essential biological 

and physical features necessary for this 

taxon at all four locales. All remaining 

occurrence complexes have been 

impacted by agricultural activities 

(Bramlet 1993, CNDDB 2003, Roberts 

and McMillan 1997, Service 1998). The 

taxon is also affected by nonagricultural 

related clearing activities (Bramlet 1993, 

CNDDB 2003, Roberts and McMillan 

1997, Service 1998). Farming continues 

today on a portion of the lands that 

make up the SJWA. The occurrence 

complex that occupies the floodplain of 

the San Jacinto River between the 

Ramona Expressway and the mouth of 

Railroad Canyon has been severely 

degraded during recent years by soil 

chemistry alteration resulting from the 

dumping of manure (Roberts 2003 and 

2004). Habitat at the Salt Creek Vernal 

Pool Complex has been degraded as a 

result of dry land farming. Finally, the 

occurrence within the Alberhill Creek 

floodplain is adjacent to a plowed field. 

This population may have previously 

extended into the adjacent agricultural 

area. Additionally, the population may 

be affected by agricultural runoff and 

sediment. 

Atriplex coronata var. notatior can 

persist in the seed bank within 

disturbed lands, including agricultural 

areas. Therefore, the species is expected 

to re-establish itself from the seed bank 

once lands are restored. Restoration of 

these disturbed areas is necessary for 

the conservation of this taxon. 

Water and Physiological Requirements 

Atriplex coronata var. notatior 

requires a hydrologic regime that 

includes sporadic flooding in 

combination with slow drainage in 

alkaline soils and habitats. The duration 

and extent of flooding or ponding can be 

extremely variable from one year to the 

next. Both localized and large-scale 

flooding are important to the survival of 

A. coronata var. notatior. 

Local flooding occurs on a seasonal 

basis and large-scale flooding occurs 

less frequently, approximately every 20 

to 50 years (Roberts 2004). Atriplex 

coronata var. notatior occupies the 

margins of flooded areas on dry mounds 

and banks within seasonally-flooded 

alkali vernal plain habitat. This annual 

species may be abundant during average 

and dry years due to the increased 

presence of floodplain margins. 

However, alkali scrub habitat expands 

and crowds out habitat for annuals such 

as A. coronata var. notatior under 

normal circumstances (Roberts 2004, 

Bramlet 2004). 

When large-scale flooding occurs, 

standing and slow moving water is 

present for weeks or months and results 

in the death of submerged alkali scrub. 

Large-scale flooding will also naturally 

restore areas that have been degraded by 

discing or other activities. Because 

Atriplex coronata var. notatior occupies 

the margins of flooded areas, 

populations may be reduced during very 

wet years when most of the species 

habitat is underwater (Bramlet 2004). 

However, large-scale flooding is 

essential to the continued survival of 

the species due to its ability to restore 

and maintain this habitat in a 

successional state. Irreversible actions 

that alter the hydrology of the seasonal 

wetlands or infringe upon the wetlands 

may threaten the survival of A. coronata 

var. notatior. 

All four occurrence complexes rely on 

seasonal localized flooding and ponding 

from surrounding watershed areas 

(Roberts 2004, Bramlet 2004). Less 

frequent large-scale flooding is provided 

by the San Jacinto River at the SJWA/ 

Mystic Lake occurrence complex and 

the occurrence complex located 

between the Ramona Expressway and 

the mouth of Railroad Canyon. Alberhill 

Creek would provide large-scale 

flooding for the occurrence complex at 

that location. Finally, the Upper Salt 

Creek Vernal Pool Complex is in a 

natural depression where rainfall from 

the surrounding area flows across the 

land and pools within the complex, in 

addition to flooding received from an 

unnamed tributary to Salt Creek. While 

some of the localized flooding for the 

Upper Salt Creek Vernal Pool Complex 

comes from undeveloped hillsides, 

much of the watershed has been 

developed, and the flows traveling to 

the vernal pools include a large amount 

of urban runoff. The maintenance of 

clean, seasonal flows from the 

surrounding watershed, as well as 

natural floodplain processes, is 

necessary for the conservation of all four 

occurrence complexes. 

Sites for Reproduction, Germination, 

and Seed Dispersal 

Both localized and large-scale 

flooding are important to the 

reproduction, germination, and seed 

dispersal of Atriplex coronata var. 

notatior (Roberts 2004, Bramlet 2004). 

A. coronata var. notatior produces 

floating seeds (A. Sanders, June 4, 2004, 

University of California, Riverside, pers. 

comm. to S. Brown, USFWS) that are 

likely dispersed during local and large 

scale flooding by slow-moving flows 

within the floodplains and vernal pools 

where the species occurs. Natural 

floodplain processes are integral to the 

biotic processes this species uses to 

disperse and reproduce. 

Local flooding allows for the 

distribution and germination of seeds 

within a localized area. Large scale 

flooding widely distributes seed of 

Atriplex coronata var. notatior, allowing 

the taxon to colonize favorable sites and 

retreat from less favorable sites in 

response to disturbance and variations 

in annual rainfall (Service 1994, Roberts 

2004, Bramlet 2004). Natural 

hydrological processes must be 

maintained in these areas to allow for 

the reproduction and dispersal of the 

species. 

Primary Constituent Elements for 

Atriplex coronata var. notatior 

Based on our current knowledge of 

the life history, biology, and ecology of 

the taxon and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that Atriplex coronata var. 

notatior’s primary constituent elements 

are: 

(1) Seasonal wetlands, including 

floodplains and vernal pools, and the 

natural hydrologic processes upon 

which these areas depend; 

(2) Natural communities, including 

seasonally-flooded alkali vernal plain, 

alkali playa, alkali scrub, and alkali 

grassland, within which the taxon is 

known to occur; and, 

(3) Slow-draining alkali soils with a 

hard pan layer that provides for a 

perched water table, including the 

Willows, Domino, Traver, Waukena, 

and Chino Soils Series. 

Criteria Used To Identify Habitat Areas 

With Essential Features 

In our proposed critical habitat 

designation (69 FR 59844), we 

delineated three Units of habitat with 

features essential to the conservation of 

Atriplex coronata var. notatior 

encompassing the four occurrence 

59966 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

complexes where the taxon is known to 

occur. These Units encompass a total of 

approximately 15,232 ac (6,167 ha) of 

habitat. 

All four of the occurrence complexes 

are within the geographic area occupied 

by the species, are known to have been 

occupied at the time of listing, and 

contain one or more PCEs (e.g., soil 

type, habitat type). The four occurrence 

complexes are: (1) Floodplain of the San 

Jacinto River at the SJWA/Mystic Lake; 

(2) Floodplain of the San Jacinto River 

between the Ramona Expressway and 

Railroad Canyon Reservoir; (3) Upper 

Salt Creek Vernal Pool Complex; and (4) 

Alberhill Creek. Each of these four 

occurrence complexes is essential to the 

conservation of the species, although 

not all known populations within these 

complexes are considered essential to 

the conservation of the species. We 

included those populations which are 

considered essential to the conservation 

of the species within the essential 

habitat units delineated in the proposed 

critical habitat designation (69 FR 

59844). The significance of each 

occurrence complex is described in 

detail in the proposed rule (69 FR 

59844). 

These complexes are mapped as three 

Units in Map 1 in the proposed rule (69 

FR 59844): Unit 1—San Jacinto River; 

Unit 2—Salt Creek (Hemet); and Unit 

3—Alberhill. Unit 1—San Jacinto River 

includes the first two occurrence 

complexes (the floodplain of the San 

Jacinto River at the San Jacinto Wildlife 

Area/Mystic Lake and the floodplain of 

the San Jacinto River between the 

Ramona Expressway and Railroad 

Canyon Reservoir) and comprises 

12,046 acres, 6,535 ac (2,645 ha) of 

which are privately owned and 5,511 ac 

(2,230 ha) of which are owned by the 

California Department of Fish and 

Game. Unit 2—Salt Creek (Hemet) 

includes the third occurrence complex 

(Upper Salt Creek Vernal Pool Complex) 

and comprises 3,154 ac (1,277 ha), all of 

which are privately owned. Unit 3—

Alberhill includes the fourth occurrence 

complex and comprises 32.3 ac (13.1 

ha), all of which are privately owned. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing and 

contain the primary constituent 

elements may require special 

management considerations or 

protections. Within the areas of habitat 

with essential features occupied by 

Atriplex coronata var. notatior, we 

believe special management 

considerations or protections may be 

needed to maintain the physical and 

biological features that the species 

requires. Threats to the species habitat 

include habitat destruction and 

fragmentation resulting from urban and 

agricultural development, manure 

dumping, pipeline construction, 

alteration of hydrology and floodplain 

dynamics, excessive flooding, 

channelization, off-road vehicle activity, 

trampling by cattle and sheep, weed 

abatement, fire suppression practices 

(including discing and plowing), and 

competition from non-native plant 

species (Bramlet 1993, Roberts and 

McMillan 1997, Service 1998). Each of 

these threats render the habitat less 

suitable for A. coronata var. notatior, 

and special management may be needed 

to address them. 

The occurrence complex that 

occupies the floodplain of the San 

Jacinto River between the Ramona 

Expressway and Railroad Canyon 

Reservoir is threatened by nonagriculture related clearing, agricultural 

activity, including irrigated crops and 

alfalfa farming, and a proposed flood 

control project (Bramlet 1996, Roberts 

and McMillan 1997, Dudek and 

Associates 2003). The occurrence 

complex that occupies the San Jacinto 

Wildlife Area/Mystic Lake is threatened 

by invasive and weedy plant species 

introduced as food sources for 

waterfowl and also remaining from 

historical agricultural production 

(Bramlet 1996). Alteration of habitat for 

duck ponds (Roberts and McMillan 

1997) and off-road vehicle activity 

(CNDDB 2003) are also management 

concerns in this area. The occurrence 

complex located within the Salt Creek 

Vernal Pool Complex is threatened by 

agricultural activities, including dryland farming, weed abatement and fire 

suppression practices, grazing, invasion 

of non-native plant species, alteration of 

hydrology, fragmentation, and a 

proposed road realignment project 

(CNDDB 2003, Bramlet 1996, Roberts 

and McMillan 1997, Dudek and 

Associates 2003). The occurrence 

complex at Alberhill Creek is located in 

a rapidly urbanizing area and is subject 

to the threat of increased humanassociated disturbance. Actions that 

alter habitat suitable for the species or 

affect the natural hydrologic processes 

upon which the species depends could 

threaten the species in this area. 

In our proposed critical habitat 

designation (69 FR 59844), we 

delineated essential habitat units to 

provide for the conservation of Atriplex 

coronata var. notatior at the four 

occurrence complexes where it is 

known to occur. These essential areas 

total approximately 15,232 ac (6,167 ha) 

of habitat. Although all four complexes 

are considered essential to the 

conservation of A. coronata var. 

notatior, not all known populations 

within these complexes are considered 

essential to the conservation of the 

species. We included those populations 

which are considered essential to the 

conservation of the species within the 

essential habitat units delineated in the 

proposed critical habitat designation (69 

FR 59844). 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed species incidental to 

otherwise lawful activities. An 

incidental take permit application must 

be supported by an HCP that identifies 

conservation measures that the 

permittee agrees to implement for the 

species to minimize and mitigate the 

impacts of the requested incidental take. 

We often exclude non-Federal public 

lands and private lands that are covered 

by an existing operative HCP and 

executed IA under section 10(a)(1)(B) of 

the Act from designated critical habitat 

because the benefits of exclusion 

outweigh the benefits of inclusion as 

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

The Western Riverside MSHCP 

species specific conservation objectives 

and written criteria provide for the 

conservation of the species within all 

four delineated essential habitat units. 

Therefore, no lands are being designated 

as critical habitat for this species. Please 

refer to the proposed rule (69 FR 59844) 

for details on how we determined the 

boundaries of the essential habitat units. 

Peer Reviewers provided comments 

regarding their recommendations for 

revisions to the essential habitat unit 

boundaries during the public comment 

period for this final rule. We have 

addressed their recommendations in the 

‘‘Peer Reviewer Comments’’ section of 

this final rule and incorporated their 

recommendations throughout the rule as 

appropriate. 

Permittees under the Western 

Riverside MSHCP are obligated to adopt 

and maintain ordinances or resolutions 

as necessary, and amend their general 

plans as appropriate, to implement the 

requirements and to fulfill the purposes 

of the MSHCP and its associated IA and 

Permit (see IA for the MSHCP, page 41). 

In its first year of implementation, the 

MSHCP has already resulted in 

conservation and management actions 

that address threats to Atriplex coronata 

var. notatior on private lands. For 

example, the City of Hemet has adopted 

two ordinances that have halted manure 

dumping within the City, and allowed 

the conditioning and coordination of 

development efforts such that habitat 

necessary for the conservation of 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59967 

MSHCP Covered Species within the 

Criteria Area is protected and will not 

become fragmented (Ordinance No. 

1666 and Ordinance No. 1742). For 

further information on management 

actions proposed for A. coronata var. 

notatior under the MSHCP see the 

‘‘Relationship of Critical Habitat to the 

Western Riverside Multiple Species 

Habitat Conservation Plan’’ section 

below. 

Critical Habitat Designation 

We evaluated all 3 Units (four 

occurrence complexes) with features 

essential for the conservation of Atriplex 

coronata var. notatior for exclusion 

from critical habitat pursuant to section 

4(b)(2) of the Act. All three Units are 

within the conservation area of the 

approved Western Riverside MSHCP in 

Riverside County. On the basis of our 

evaluation of the conservation measures 

afforded A. coronata var. notatior under 

the MSHCP, we have concluded that the 

benefit of excluding the lands covered 

by this MSHCP outweighs the benefit of 

including them as critical habitat (see 

discussion in section entitled 

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

Act’’). Thus, we are excluding the lands 

covered by this MSHCP from the 

designation of critical habitat for this 

taxon, pursuant to section 4(b)(2) of the 

Act. Because we have excluded all areas 

of habitat with essential features from 

the proposal, we are designating zero 

acres (0 ac) (0 ha) of critical habitat in 

this final rule for A. coronata var. 

notatior. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.2, 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.’’ The Service uses 

the guidance issued in the Director’s 

December 9, 2004, memorandum when 

making adverse modification 

determinations under section 7 of the 

Act. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402. 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a proposed 

species or result in destruction or 

adverse modification of proposed 

critical habitat. Conference reports 

provide conservation recommendations 

to assist the agency in eliminating 

conflicts that may be caused by the 

proposed action. We may issue a formal 

conference report if requested by a 

Federal agency. Formal conference 

reports on proposed critical habitat 

contain an opinion that is prepared 

according to 50 CFR 402.14, as if critical 

habitat were designated. We may adopt 

the formal conference report as the 

biological opinion when the critical 

habitat is designated, if no substantial 

new information or changes in the 

action alter the content of the opinion 

(see 50 CFR 402.10(d)). The 

conservation recommendations in a 

conference report are advisory. 

If a species is listed or critical habitat 

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

Federal agencies to ensure that activities 

they authorize, fund, or carry out are not 

likely to jeopardize the continued 

existence of such a species or to destroy 

or adversely modify 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, the 

action agency ensures that their 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 

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. 

Federal activities that may affect 

Atriplex coronata var. notatior will 

continue to 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 under 

section 404 of the Clean Water Act, a 

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

Service, or some other Federal action, 

including funding (e.g., Federal 

Highway Administration or Federal 

Emergency Management Agency 

funding), 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 and private 

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. However, no lands are 

being designated as critical habitat for 

Atriplex coronata var. notatior because 

all habitat areas with essential features 

are within the conservation area of the 

approved Western Riverside MSHCP. 

If you have questions regarding 

whether specific activities would 

require consultation under section 7 of 

the Act, 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, Portland Regional 

Office, 911 NE. 11th Avenue, Portland, 

OR 97232 (telephone 503/231–6131; 

facsimile 503/231–6243). 

59968 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

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

Act 

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

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data available after 

taking into consideration the economic 

impact, impact on national security, and 

any other relevant impact, of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of such exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. Consequently, we may exclude 

an area from critical habitat based on 

economic impacts, impacts on national 

security, or other relevant impacts such 

as preservation of conservation 

partnerships, if we determine the 

benefits of excluding an area from 

critical habitat outweigh the benefits of 

including the area in critical habitat, 

provided the action of excluding the 

area will not result in the extinction of 

the species. 

Relationship of Critical Habitat to the 

Western Riverside Multiple Species 

Habitat Conservation Plan 

We are excluding critical habitat from 

approximately 15,232 ac (6,167 ha) of 

non-Federal lands within the Western 

Riverside County MSHCP under section 

4(b)(2) of the Act. Atriplex coronata var. 

notatior is a covered species under the 

Western Riverside County MSHCP. We 

completed our section 7 consultations 

on the issuance of the section 10(a)(1)(B) 

permit for the Western Riverside County 

MSHCP on June 22, 2004. This 

approved and legally operative HCP 

provides special management and 

protection for the physical and 

biological features essential for the 

conservation of A. coronata var. notatior 

that exceed the level of regulatory 

control that would be afforded this 

species by the designation of critical 

habitat. We have determined that the 

benefits of excluding critical habitat 

within this HCP from the critical habitat 

designation will outweigh the benefits 

of including them as critical habitat and 

this exclusion will not result in the 

extinction of A. coronata var. notatior. 

Below we first provide general 

background information on the Western 

Riverside County MSHCP, followed by 

an analysis pursuant to section 4(b)(2) of 

the Act of the benefits of including HCP 

lands within the critical habitat 

designation, an analysis of the benefits 

of excluding HCP lands, and an analysis 

of why we believe the benefits of 

exclusion are greater than the benefits of 

inclusion. Finally, we provide a 

determination that exclusion of the HCP 

lands will not result in extinction of 

Atriplex coronata var. notatior. 

The Western Riverside County 

MSHCP establishes a multiple species 

conservation program to minimize and 

mitigate the expected loss of habitat 

values and, with regard to ‘‘covered’’

animal species, the incidental take of 

such species. The MSHCP Plan Area 

encompasses approximately 1.26 

million ac (509,900 ha) in western 

Riverside County, including the entire 

range of Atriplex coronata var. notatior, 

which is a covered species under this 

plan. The Western Riverside County 

MSHCP is a subregional plan under the 

State’s Natural Communities 

Conservation Plan (NCCP) and was 

developed in cooperation with the 

California Department of Fish and 

Game. The Service concluded that the 

MSHCP would not jeopardize the 

continued existence of Atriplex 

coronata var. notatior in its Biological 

and Conference Opinion (Service 2004). 

The MSHCP has five species-specific 

conservation objectives to conserve and 

monitor Atriplex coronata var. notatior 

populations: (1) Include within the 

MSHCP Conservation Area at least 6,900 

acres of suitable habitat (grassland and 

playas and vernal pools within the San 

Jacinto River, Mystic Lake and Salt 

Creek portions of the MSHCP 

Conservation Area); (2) include within 

the MSHCP Conservation Area the 

Alberhill Creek locality as well as the 

three Core Areas, located along the San 

Jacinto River from the vicinity of Mystic 

Lake southwest to the vicinity of Perris 

and in the upper Salt Creek drainage 

west of Hemet; (3) conduct surveys for 

Atriplex coronata var. notatior as part of 

the project review process for public 

and private projects within the Criteria 

Area where suitable habitat is present. 

Atriplex coronata var. notatior located 

as a result of survey efforts shall be 

conserved in accordance with 

procedures described within the 

MSHCP; (4) include within the MSHCP 

Conservation Area the floodplain along 

the San Jacinto River consistent with 

Objective 1. Floodplain processes will 

be maintained along the river in order 

to provide for the distribution of the 

species to shift over time as hydrologic 

conditions and seed bank sources 

change; and (5) include within the 

MSHCP Conservation Area the 

floodplain along Salt Creek generally in 

its existing condition from Warren Road 

to Newport Road and the vernal pools 

in Upper Salt Creek west of Hemet. 

Floodplain processes will be maintained 

in order to provide for the distribution 

of the species to shift over time as 

hydrologic conditions and seed bank 

sources change. 

Approximately 77 percent of the 

essential habitat for Atriplex coronata 

var. notatior (11,760 acres of the 15,232 

acres of essential habitat) would be 

protected on existing Public/QuasiPublic Lands (PQP) lands and 

conceptual reserve design lands within 

the Western Riverside County MSCHP 

(MSHCP Conservation Area) (see 

objectives 1 and 2). This essential 

habitat is located at Alber Hill Creek, 

San Jacinto Wildlife Area, along the 

floodplain of the San Jacinto River, and 

upper Salt Creek west of Hemet and 

includes many occurrences of A. 

coronata var. notatior (see objectives 1, 

2 and 4). The assembly of the MSHCP 

Conservation Area is anticipated to 

occur over the life of the permit. The 

MSHCP also includes monitoring and 

management requirements for A. 

coronata var. notatior. Known localities 

within the MSHCP Conservation Area 

will be monitored every eight years. 

Under the MSHCP, reserve managers are 

responsible for the maintenance and 

enhancement of floodplain processes on 

the San Jacinto River and Upper Salt 

Creek. Particular management emphasis 

will be given to preventing alteration of 

hydrology and floodplain dynamics, 

farming, fire and fire suppression 

activities, off-road vehicle use, and 

competition from non-native plant 

species. Thus, a significant amount of 

essential habitat and occurrences of 

Atriplex coronata var. notatior are 

expected to be conserved and managed 

in the MSHCP Conservation Area. 

Approximately 14 percent of the 

essential habitat (2,202 acres of the 

15,232 acres of essential habitat) 

provides the watershed for the MSHCP 

Conservation Area at upper Salt Creek 

west of Hemet. These watershed lands 

are not part of the MSHCP Conservation 

Area and are not known to be occupied 

by Atriplex coronata var. notatior. The 

Guidelines Pertaining to the Urban/ 

Wildlands Interface is to ensure that the 

quantity and quality of runoff 

discharged to the MSHCP Conservation 

Area is not altered in an adverse way 

when compared with existing 

conditions. The function of these lands 

would be to maintain the quantity and 

quality of runoff discharged to the 

MSHCP Conservation Area. While these 

lands are expected to be developed, this 

guideline would ensure that future 

urbanization would maintain the 

existing water quality and quantity 

needed to sustain the seasonal wetlands 

occupied by Atriplex coronata var. 

notatior. 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59969 

Numerous processes are incorporated 

into the MSHCP that allow for Service 

oversight of MSHCP implementation. 

These processes include (1) annual 

reporting requirements; joint review of 

projects proposed within the Criteria 

Area; participation on the Reserve 

Management Oversight Committee; and 

a Reserve Assembly Accounting Process 

which will be implemented to ensure 

that conservation of lands occurs in 

rough proportionality to development, 

are assembled in the configuration as 

generally described in the MSHCP, and 

that conservation goals and objectives 

are being achieved. The Service is also 

responsible for reviewing 

Determinations of Biologically 

Equivalent or Superior Preservation that 

are proposed under the Protection of 

Species Associated with Riparian/ 

Riverine Areas and Vernal Pools policy 

and for reviewing minor amendment 

projects, such as the State Route 79 

Realignment project and the San Jacinto 

River Flood Control project, for 

consistency with the requirements of 

the MSHCP. 

Thus, the Western Riverside County 

MSHCP provides significant 

conservation benefits to Atriplex 

coronata var. notatior. These benefits 

include a MSHCP Conservation Area 

that protects a significant percentage of 

the essential habitat and occurrences for 

Atriplex coronata var. notatior and longterm management of the preserve areas. 

The MSHCP also provides avoidance 

and minimization measures, under the 

Guidelines Pertaining to the Urban/ 

Wildlands Interface that provide 

benefits to the species and watershed for 

Atriplex coronata var. notatior. Finally, 

the MSHCP provides oversight to ensure 

effective implementation. 

(1) Benefits of Inclusion 

Overall, we believe that there is 

minimal benefit from designating 

critical habitat for Atriplex coronata var. 

notatior within the Western Riverside 

County MSHCP because, as explained 

above, these lands are already managed 

or will be managed for the conservation 

of Atriplex coronata var. notatior. Below 

we discuss benefits of inclusion of these 

HCP lands. 

A benefit of including an area within 

a critical habitat designation is the 

protection provided by section 7(a)(2) of 

the Act that directs Federal agencies to 

ensure that their actions do not result in 

the destruction or adverse modification 

of critical habitat. The designation of 

critical habitat and the analysis to 

determine if the proposed Federal 

action may result in the destruction or 

adverse modification of critical habitat 

for Atriplex coronata var. notatior may 

provide a different level of protection 

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

separate from the obligation of a Federal 

agency to ensure that their actions are 

not likely to jeopardize the continued 

existence of Atriplex coronata var. 

notatior. Under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species than was 

previously believed, but it is not 

possible to quantify this benefit at 

present. However, the protection 

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

Act is still a limitation on the harm that 

occurs to the species or critical habitat 

as opposed to a requirement to provide 

a conservation benefit. 

The inclusion of these 15,232 ac 

(6,167 ha) of non-Federal land as critical 

habitat may provide some additional 

Federal regulatory benefits for the 

species consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

ensure that their actions on these nonFederal lands do not likely result in the 

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these 15,232 ac (6,167 ha) of 

non-Federal lands would likely consider 

the conservation value of these lands as 

identified in the Western Riverside 

County MSHCP and take the necessary 

steps to avoid jeopardy or the 

destruction or adverse modification of 

critical habitat. In any event, they will 

still need to consult with us to avoid 

jeopardy to the species, and we 

generally consider habitat impacts in 

such jeopardy consultations. 

The areas excluded as critical habitat 

include the seasonal wetlands that are 

occupied by Atriplex coronata var. 

notatior and the surrounding watershed 

(the watershed is not occupied by A. 

coronata var. notatior). If these areas 

were designated as critical habitat, any 

actions with a Federal nexus, such as 

the issuance of a permit under section 

404 of the Clean Water Act, which 

might adversely affect critical habitat 

would require a consultation with us, as 

explained previously, in Effects of 

Critical Habitat Designation. However, 

inasmuch as portions of these areas are 

currently occupied by the species, 

consultation for Federal activities which 

might adversely impact the species 

would be required even without the 

critical habitat designation. For the 

surrounding watershed not occupied by 

A. coronata var. notatior, the Federal 

action agency would need to determine 

if the proposed action would affect the 

species rather than making a 

determination if the proposed action 

would cause destruction or adverse 

modification of critical habitat. A 

potential benefit of critical habitat 

would be to signal the importance of the 

surrounding watershed not occupied by 

A. coronata var. notatior to Federal 

agencies and to ensure their actions do 

not result in the destruction or adverse 

modification of critical habitat pursuant 

to section 7(a)(2) of the Act. 

This potential benefit of critical 

habitat is reduced by the measures 

contained in the HCP to maintain 

watersheds for endangered species and 

seasonal wetlands. The Western 

Riverside County MSHCP provides 

Guidelines Pertaining to the Urban/ 

Wildlands Interface. Under this 

guideline, proposed developments in 

proximity to MSHCP Conservation 

Areas shall incorporate measures, 

including measures required through 

the National Pollutant Discharge 

Elimination System requirements, to 

ensure that the quantity and quality of 

runoff discharged to the MSHCP 

Conservation Area is not altered in an 

adverse way when compared with 

existing conditions. In particular, 

measures shall be put in place to avoid 

discharge of untreated surface runoff 

from developed and paved areas into 

the MSHCP Conservation Area. 

Stormwater systems shall be designed to 

prevent the release of toxins, chemicals, 

petroleum products, exotic plant 

materials or other elements that might 

degrade or harm biological resources or 

ecosystem processes within the MSHCP 

Conservation Area. Thus, this HCP 

provide a greater level of protection and 

management for the watersheds of 

seasonal wetlands occupied by Atriplex 

coronata var. notatior than the simple 

avoidance of adverse effects to critical 

habitat. 

If these areas were included as critical 

habitat, primary constituent elements 

would be protected from destruction or 

adverse modification by federal actions 

using a conservation standard based on 

the Ninth Circuit Court’s decision in 

Gifford Pinchot. This requirement 

would be in addition to the requirement 

that proposed Federal actions avoid 

likely jeopardy to the species’ continued 

existence. However, for those seasonal 

wetland areas occupied by Atriplex 

coronata var. notatior and the 

surrounding watershed, consultation for 

activities which may adversely affect 

the species, would be required even 

without the critical habitat designation. 

59970 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

In Sierra Club v. Fish and Wildlife 

Service, 245 F.3d 434 (5th Cir. 2001), 

the Fifth Circuit Court of Appeals stated 

that the identification of habitat areas 

essential to the conservation of the 

species can provide informational 

benefits to the public, State and local 

governments, scientific organizations, 

and Federal agencies. The court also 

noted that heightened public awareness 

of the plight of listed species and their 

habitats may facilitate conservation 

efforts. The inclusion of an area as 

critical habitat may focus and contribute 

to conservation efforts by other parties 

by clearly delineating areas of high 

conservation values for certain species. 

However, we believe that this 

educational benefit has largely been 

achieved for Atriplex coronata var. 

notatior. The public outreach and 

environmental impact reviews required 

under the National Environmental 

Policy Act for the Western Riverside 

County MSHCP provided significant 

opportunities for public education 

regarding the conservation of the areas 

occupied by Atriplex coronata var. 

notatior and the surrounding watershed. 

In addition, there has been public notice 

and opportunity for comment on this 

proposal, which identified lands eligible 

for designation as critical habitat, and 

on the economic analysis for the 

proposal, which also identified those 

lands. There would be little additional 

informational benefit gained from 

including these lands as critical habitat 

because of the level of information that 

has been made available to the public as 

part of these regional planning efforts. 

Consequently, we believe that the 

informational benefits are already 

provided even though this area is not 

designated as critical habitat. 

Additionally, the purpose of the 

Western Riverside County MSHCP to 

provide protection and enhancement of 

habitat for Atriplex coronata var. 

notatior is already well established 

among State and local governments, and 

Federal agencies. 

As discussed below, however, we 

believe that designating any non-Federal 

lands within the Western Riverside 

County MSHCP as critical habitat would 

provide little additional educational and 

Federal regulatory benefits for the 

species. Because portions of the 

excluded seasonal wetlands are 

occupied by the species, there must be 

consultation with the Service over any 

action which may affect these 

populations. For the surrounding 

watershed not occupied by Atriplex 

coronata var. notatior, the Western 

Riverside County MSHCP provide 

management measures to protect the 

watershed for these seasonal wetlands. 

The additional educational benefits that 

might arise from critical habitat 

designation have been largely 

accomplished through the public review 

and comment of the environmental 

impact documents which accompanied 

the development of the Western 

Riverside County MSHCP, the public 

notice and comment period on this 

proposal, which identified lands eligible 

for designation as critical habitat, and 

on the economic analysis for the 

proposal, which also identified those 

lands, and the recognition by the 

County of Riverside of the presence of 

Atriplex coronata var. notatior and the 

value of their lands for the conservation 

and recovery of the species. The areas 

identified for conservation in the 

Western Riverside County MSHCP 

under the species-specific conservation 

objectives (San Jacinto River, Mystic 

Lake, Salt Creek, and Alberhill Creek 

portions of the MSHCP Conservation 

Area) are the same lands we have 

identified as providing the physical and 

biological features essential to the 

conservation of this species. 

For 30 years prior to the Ninth Circuit 

Court’s decision in Gifford Pinchot, the 

Fish and Wildlife Service equated the 

jeopardy standard with the standard for 

destruction or adverse modification of 

critical habitat. However, in Gifford 

Pinchot the court noted the government, 

by simply considering the action’s 

survival consequences, was reading the 

concept of recovery out of the 

regulation. The court, relying on the 

CFR definition of adverse modification, 

required the Service to determine 

whether recovery was adversely 

affected. The Gifford Pinchot decision 

arguably made it easier to reach an 

‘‘adverse modification’’ finding by 

reducing the harm, affecting recovery, 

rather than the survival of the species. 

However, there is an important 

distinction: section 7(a)(2) limits harm 

to the species either through jeopardy or 

destruction or adverse modification of 

its habitat where there is a Federal 

nexus to the potential harm. It does not 

affect purely State or private actions on 

State or private land, nor does it require 

positive habitat improvements or 

enhancement of the species status. 

Thus, any management plan which has 

enhancement or recovery as the 

management standard will almost 

always provide more benefit than the 

critical habitat designation. 

(2) Benefits of Exclusion 

As mentioned above, the Western 

Riverside County MSHCP provide for 

the conservation of Atriplex coronata 

var. notatior through avoidance, 

minimization, and/or mitigation of 

impacts, management of habitat, and 

maintenance of watershed. The Western 

Riverside County MSHCP provides for 

protection of the PCEs, and addresses 

special management needs such as edge 

effects and maintenance of hydrology. 

Designation of critical habitat would 

therefore not provide as great a benefit 

to the species as the positive 

management measures provided in this 

HCP. 

The benefits of excluding lands 

within HCPs from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by a critical habitat 

designation consistent with the 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. Many HCPs, particularly large 

regional HCPs take many years to 

develop and, upon completion, become 

regional conservation plans that are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. Additionally, many of 

these HCPs provide conservation 

benefits to unlisted, sensitive species. 

Imposing an additional regulatory 

review after an HCP is completed solely 

as a result of the designation of critical 

habitat may undermine conservation 

efforts and partnerships in many areas. 

In fact, it could result in the loss of 

species’ benefits if participants abandon 

the voluntary HCP process because the 

critical habitat designation may result in 

additional regulatory requirements than 

faced by other parties who have not 

voluntarily participated in species 

conservation. Designation of critical 

habitat within the boundaries of 

approved HCPs could be viewed as a 

disincentive to those entities currently 

developing HCPs or contemplating them 

in the future. 

Another benefit from excluding these 

lands is to maintain the partnerships 

developed among the County of 

Riverside, State of California, and the 

Service to implement the Western 

Riverside County MSHCP. Instead of 

using limited funds to comply with 

administrative consultation and 

designation requirements which cannot 

provide protection beyond what is 

currently in place, the partners could 

instead use their limited funds for the 

conservation of this species. 

A related benefit of excluding lands 

within HCPs from critical habitat 

designation is the unhindered, 

continued ability to seek new 

partnerships with future HCP 

participants including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59971 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within HCP plan areas are designated as 

critical habitat, it would likely have a 

negative effect on our ability to establish 

new partnerships to develop HCPs, 

particularly large, regional HCPs that 

involve numerous participants and 

address landscape-level conservation of 

species and habitats. By excluding these 

lands, we preserve our current 

partnerships and encourage additional 

conservation actions in the future. 

Furthermore, an HCP or NCCP/HCP 

application must itself be consulted 

upon. While this consultation will not 

look specifically at the issue of adverse 

modification to critical habitat, unless 

critical habitat has already been 

designated within the proposed plan 

area, it will determine if the HCP 

jeopardizes the species in the plan area. 

In addition, Federal actions not covered 

by the HCP in areas occupied by listed 

species would still require consultation 

under section 7 of the Act. HCP and 

NCCP/HCPs typically provide for 

greater conservation benefits to a 

covered species than section 7 

consultations because HCPs and NCCP/ 

HCPs assure the long-term protection 

and management of a covered species 

and its habitat, and funding for such 

management through the standards 

found in the 5 Point Policy for HCPs (64 

FR 35242) and the HCP ‘‘No Surprises’’

regulation (63 FR 8859). Such 

assurances are typically not provided by 

section 7 consultations that, 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 

a HCP or NCCP/HCP provides. The 

development and implementation of 

HCPs or NCCP/HCPs provide other 

important conservation benefits, 

including the development of biological 

information to guide the conservation 

efforts and assist in species 

conservation, and the creation of 

innovative solutions to conserve species 

while allowing for development. In the 

biological opinions for the Western 

Riverside County MSHCP, the Service 

concluded that issuance of section 

10(a)(1)(B) permit for this plan is not 

likely to result in jeopardy to the 

species. 

(3) Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We have reviewed and evaluated the 

exclusion of critical habitat for Atriplex 

coronata var. notatior from 

approximately 15,232 ac (6,164 ha) of 

non-Federal lands within the Western 

Riverside County MSHCP and based on 

this evaluation, we find that the benefits 

of exclusion (avoid increased regulatory 

costs which could result from including 

those lands in this designation of 

critical habitat, ensure the willingness 

of existing partners to continue active 

conservation measures, maintain the 

ability to attract new partners, and 

direct limited funding to conservation 

actions with partners) of the lands 

containing features essential to the 

conservation of Atriplex coronata var. 

notatior within the Western Riverside 

County MSHCP outweigh the benefits of 

inclusion (limited educational and 

regulatory benefits, which are largely 

otherwise provided for under the HCP) 

of these lands as critical habitat. The 

benefits of inclusion of these 15,232 ac 

(6,164 ha) of non-Federal lands as 

critical habitat are lessened because of 

the significant level of conservation 

provided Atriplex coronata var. notatior 

under the Western Riverside County 

MSHCP (conservation of occupied and 

potential habitat, monitoring, and 

providing hydrology). In contrast, the 

benefits of exclusion of these 15,232 ac 

(6,164 ha) of non-Federal lands as 

critical habitat are increased because of 

the high level of cooperation by the 

County of Riverside, State of California, 

and the Service to conserve this species 

and these partnerships exceed any 

conservation value provided by a 

critical habitat designation. 

(4) Exclusion Will Not Result in 

Extinction of the Species 

We believe that exclusion of these 

15,232 ac (6,164 ha) of non-Federal 

lands will not result in extinction of 

Atriplex coronata var. notatior since 

these lands are conserved or will be 

conserved and managed for the benefit 

of this species pursuant to the Western 

Riverside County MSHCP. This HCP 

includes specific conservation 

objectives, avoidance and minimization 

measures, and management that exceed 

any conservation value provided as a 

result of a critical habitat designation. 

The Service concluded that the Western 

Riverside County MSHCP would not 

jeopardize the continued existence of N. 

fossalis Atriplex coronata var. notatior 

in our Biological and Conference 

Opinion because of the management 

measures and level of conservation. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. The 

exclusion leaves these protections 

unchanged from those that would exist 

if the excluded areas were designated as 

critical habitat. 

Additionally, the species within the 

Western Riverside County MSHCP 

occurs on lands protected and managed 

either explicitly for the species or 

indirectly through more general 

objectives to protect natural values. 

These factors acting in concert with the 

other protections provided under the 

Act, lead us to find that exclusion of 

these 15,232 ac (6,164 ha) within the 

Western Riverside County MSHCP will 

not result in extinction of Atriplex 

coronata var. notatior. 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific data 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 concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

August 31, 2005, (70 FR 51739). We 

accepted comments on the draft analysis 

until September 14, 2005. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for A. 

coronata var. notatior. This information 

is intended to assist the Secretary in 

making decisions about whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas in the 

designation. This economic analysis 

considers the economic efficiency 

effects that may result from the 

designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

This analysis focuses on the direct 

and indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

59972 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

There is no economic impact within 

the final designation because the 

Service has not designated any lands as 

critical habitat for Atriplex coronata var. 

notatior. 

A copy of the final economic analysis 

and supporting documents are included 

in our administrative record and may be 

obtained by contacting U.S. Fish and 

Wildlife Service, Branch of Endangered 

Species (see ADDRESSES section) or by 

download from the Internet at http:// 

carlsbad.fws.gov. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues. However, because we are 

designating zero acres of critical habitat, 

this rule would not have an annual 

effect on the economy of $100 million 

or more or affect the economy in a 

material way. Due to the time line for 

publication in the Federal Register, the 

Office of Management and Budget 

(OMB) did not formally review this rule. 

As explained above, we prepared an 

economic analysis of this action. We 

used this analysis to meet the 

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

to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2), if we 

determine that the benefits of such 

exclusion outweigh the benefits of 

specifying such area as part of the 

critical habitat, unless we determine, 

based on the best scientific data 

available, that the failure to designate 

such area as critical habitat will result 

in the extinction of the species. 

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

et seq.) 

Under the Regulatory Flexibility Act 

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

Small Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. In our proposed rule, we 

withheld our determination of whether 

this designation would result in a 

significant effect as defined under 

SBREFA until we completed our draft 

economic analysis of the proposed 

designation so that we would have the 

factual basis for our determination. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations, 

and small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents, as well as small 

businesses (13 CFR 121.201). Small 

businesses include manufacturing and 

mining concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if this rule would affect 

a substantial number of small entities, 

we considered the number of small 

entities affected within particular types 

of economic activities (e.g., residential 

and commercial development). We 

considered each industry or category 

individually to determine if certification 

is appropriate. In estimating the 

numbers of small entities potentially 

affected, we also considered whether 

their activities have any Federal 

involvement; some kinds of activities 

are unlikely to have any Federal 

involvement and so will not be affected 

by the designation of critical habitat. 

Designation of critical habitat only 

affects activities conducted, funded, 

permitted, or authorized by Federal 

agencies; non-Federal activities are not 

affected by the designation. Typically, 

when proposed critical habitat 

designations are made final, Federal 

agencies must consult with us if their 

activities may affect that designated 

critical habitat. Consultations to avoid 

the destruction or adverse modification 

of critical habitat would be incorporated 

into the existing consultation process. 

However, since no critical habitat is 

being designated, no consultations 

would be necessary. 

In our economic analysis of this 

proposed designation, we evaluated the 

potential economic effects on small 

business entities resulting from 

conservation actions related to the 

listing of this species and proposed 

designation of its critical habitat. 

Because zero acres of critical habitat are 

being designated, there would be no 

additional costs to small businesses, 

and, thus, this rule would not result in 

a ‘‘significant effect’’ for the small 

business entities in Riverside County. 

As such, we are certifying that this rule 

will not result in a significant economic 

impact on a substantial number of small 

entities. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order (E.O.) 13211 on 

regulations that significantly affect 

energy supply, distribution, and use. 

E.O. 13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This rule is 

considered a significant regulatory 

action under E.O. 12866 because it 

raises novel legal and policy issues, but 

it is not expected to significantly affect 

energy supplies, distribution, or use. 

Therefore, this action is not a significant 

action under E.O. 13211, and no 

Statement of Energy Effects is required. 

Please refer to Appendix A of our draft 

economic analysis of this proposed 

designation for a more detailed 

discussion of potential effects on energy 

supply. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

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

the Service makes the following 

findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or tribal governments’’

with two exceptions. It excludes ‘‘a 

Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 59973 

condition of federal assistance.’’ It also 

excludes ‘‘a duty arising from 

participation in a voluntary Federal 

program,’’ unless the regulation ‘‘relates 

to a then-existing Federal program 

under which $500,000,000 or more is 

provided annually to State, local, and 

tribal governments under entitlement 

authority,’’ if the provision would 

‘‘increase the stringency of conditions of 

assistance’’ or ‘‘place caps upon, or 

otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments, because we are 

designating zero acres of critical habitat. 

Consequently, we do not believe that 

critical habitat designation would 

significantly or uniquely affect small 

government entities. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with Executive Order 

12630 (‘‘Government Actions and 

Interference with Constitutionally 

Protected Private Property Rights’’), we 

have analyzed the potential takings 

implications of desinating critical 

habitat for Atriplex coronata var. 

notatior. Critical habitat designation 

does not affect landowner actions that 

do not require Federal funding or 

permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. Because we are designating 

zero acres of critical habitat for Atriplex 

coronata var. notatior, this rule does not 

pose significant takings implications. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

California. The designation of zero acres 

of critical habitat in areas currently 

occupied by Atriplex coronata var. 

notatior would have no impact on State 

and local governments and their 

activities. The process of identifying 

habitat with essential features may have 

some benefit to State and local 

governments in that the areas essential 

to the conservation of these species are 

more clearly defined, and the primary 

constituent elements of the habitat 

necessary to the survival of the species 

are 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 making them wait for caseby-case section 7 consultation 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 

designating zero acres of critical habitat 

in accordance with the provisions of the 

Endangered Species Act. This final 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 Atriplex coronata var. 

notatior. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

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

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

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

1995), cert. denied 116 S. Ct. 698 

(1996).] 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no tribal 

lands with features essential for the 

conservation of Atriplex coronata var. 

notatior. Critical habitat for A. coronata 

var. notatior has not been designated on 

Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The primary author of this package is 

the Carlsbad Fish and Wildlife Office 

(see ADDRESSES section). 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

59974 Federal Register / Vol. 70, No. 197 / Thursday, October 13, 2005 / Rules and Regulations 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.12(h), in the List of 

Endangered and Threatened Plants, 

revise the entry for ‘‘Atriplex coronata 

var. notatior’’ under ‘‘FLOWERING 

PLANTS’’ to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical habitat Special 

rules Scientific name Common name 

FLOWERING PLANTS 

* * * * * * * 

Atriplex coronata 

var. notatior.

San Jacinto Valley crownscale.U.S.A. (CA) ......... Chenopodiaceae

—Goosefoot 

Family.

E 650 17.96 (a) (No areas 

designated) 

NA 

* * * * * * * 

■ 3. In § 17.96, amend paragraph (a) by 

adding an entry for Atriplex coronata 

var. notatior in alphabetical order under 

Family Chenopodiaceae to read as 

follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Chenopodiaceae: Atriplex 

coronata var. notatior (San Jacinto 

Valley crownscale) 

Pursuant to section 4(b)(2) of the Act, 

we have excluded all areas determined 

to meet the definition of critical habitat 

under section 3(5)(A) of the Act for 

Atriplex coronata var. notatior. 

Therefore, no specific areas are 

designated as critical habitat for this 

species. 

* * * * * 

Dated: September 30, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–20146 Filed 10–12–05; 8:45 am] 

BILLING CODE 4310–55–P