[Federal Register Volume 70, Number 197 (Thursday, October 13, 2005)]
[Rules and Regulations]
[Pages 59952-59974]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-20146]



[[Page 59951]]

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Part VI





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Atriplex coronata var. notatior (San Jacinto Valley 
crownscale); Final Rule

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

[[Page 59952]]


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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.

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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 judicially-imposed 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

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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

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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

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projects such as the State Route 79 Realignment Project, the Ramona 
Expressway, and the San Jacinto River Flood Control Project; and, (3) 
non-seasonal 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

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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

[[Page 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 willow-cottonwood 
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 species-specific 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

[[Page 59958]]

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-meter-square 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.

[[Page 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

[[Page 59960]]

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

[[Page 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

[[Page 59962]]

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) non-use 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

[[Page 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 species-specific 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 species-specific 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 Sec.  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

[[Page 59964]]

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

[[Page 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

[[Page 59966]]

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 non-agriculture 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 dry-land 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 
human-associated 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

[[Page 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).

[[Page 59968]]

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/Quasi-Public 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.

[[Page 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 long-term 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 non-Federal 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.

[[Page 59970]]

    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,

[[Page 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

[[Page 59972]]

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

[[Page 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 non-Federal 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 case-by-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.

[[Page 59974]]

Regulation Promulgation

0
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]

0
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.


0
2. In Sec.  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:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                     Species
-------------------------------------------------  Historic range        Family          Status    When listed        Critical habitat         Special
        Scientific name            Common name                                                                                                  rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
 
                                                                      * * * * * * *
Atriplex coronata var.          San Jacinto       U.S.A. (CA).....  Chenopodiaceae -- E                    650  17.96 (a) (No areas                   NA
 notatior.                       Valley                              Goosefoot                                   designated)
                                 crownscale.                         Family.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96, amend paragraph (a) by adding an entry for Atriplex 
coronata var. notatior in alphabetical order under Family 
Chenopodiaceae to read as follows:


Sec.  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