60658 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT86 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Navarretia Fossalis 

(Spreading Navarretia) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), designate 

critical habitat for Navarretia fossalis 

(spreading navarretia) pursuant to the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

652 acres (ac) (264 hectares (ha)) fall 

within the boundary of the critical 

habitat designation. The designated 

critical habitat is within San Diego and 

Los Angeles Counties, California. We 

have exempted or excluded 

approximately 18,747 ac (7,586 ha) of 

habitat with essential features in 

Riverside and San Diego Counties from 

this designation of critical habitat. 

DATES: This rule becomes effective on 

November 17, 2005. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours, at the 

Carlsbad Fish and Wildlife Office, U.S. 

Fish and Wildlife Service, 6010 Hidden 

Valley Road, Carlsbad, CA 92011 

(telephone: 760/431–9440). The final 

rule, economic analysis (EA), and map 

are also available via the Internet at 

http://carlsbad.fws.gov. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Carlsbad Fish and 

Wildlife Office (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 ESA, 

the Service has found that the 

designation of statutory critical habitat 

provides little additional protection to 

most listed species, while consuming 

significant amounts of conservation 

resources. The Service’s present system 

for designating critical habitat is driven 

by litigation 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 ESA 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. In the case of listed 

plants, such as Navarretia fossalis, 

section 9 of the Act prohibits any person 

subject to the jurisdiction of the United 

States from removing and reducing to 

possession any such species from areas 

under Federal jurisdiction; maliciously 

damaging or destroying any such 

species on such area; or removing, 

cutting, digging up, or damaging or 

destroying any such species on any 

other area in knowing violation of any 

law or regulation of any state or in the 

course of any violation of a State 

criminal trespass law. 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 regarding critical habitat 

designation, 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 and to comply with the 

growing number of adverse court orders. 

As a result, the Service’s own proposals 

to undertake conservation actions based 

on biological priorities are significantly 

delayed. 

The accelerated schedules of courtordered designations have left the 

Service with almost no ability to 

provide for additional public 

participation beyond that minimally 

required by the Administrative 

Procedures Act (APA), the Act, and the 

Service’s implementing regulations, or 

to take additional time for review of 

comments and information to ensure the 

rule has addressed all the pertinent 

issues 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 

will suffer adverse impacts from these 

decisions challenge them. The cycle of 

litigation appears endless, is very 

expensive, and in the final analysis 

provides 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); all 

are part of the cost of critical habitat 

designation. These costs result in 

minimal benefits to the species that are 

not already afforded by the protections 

of the Act enumerated earlier, and they 

directly reduce the funds available for 

direct and tangible conservation actions. 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60659 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

identification and final designation of 

critical habitat for Navarretia fossalis in 

this rule. For more information on this 

species, beyond what is presented in the 

following paragraph, refer to the final 

rule listing this species as threatened 

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 1, 

2004 (69 FR 60110). Additional 

information can also be found in the 

Recovery Plan for the Vernal Pools of 

Southern California (Recovery Plan) 

finalized on September 3, 1998 (Service 

1998). 

Navarretia fossalis, a member of 

Polemoniaceae (Phlox family), is a low, 

mostly spreading or ascending, annual 

herb, 4 to 6 inches (in) (10 to 15 

centimeters (cm)) tall. This species 

grows in vernal pools, clay flats, 

irrigation ditches, alkali grasslands, 

alkali playas, and alkali sinks (Dudek 

and Associates, Inc. 2003; Spencer 

1997). N. fossalis is distributed from 

northwestern Los Angeles County and 

western Riverside County, south 

through coastal San Diego County, 

California to northwestern Baja 

California, Mexico (Moran 1977; 

Oberbauer 1992). Fewer than 30 

populations exist in the United States 

(63 FR 54975). Nearly 60 percent of the 

known populations are concentrated in 

three locations: Otay Mesa in southern 

San Diego County, along the San Jacinto 

River in western Riverside County, and 

near Hemet in Riverside County 

(Service 1998). We estimate that less 

than 300 ac (120 ha) of habitat in the 

United States was occupied by this 

species (63 FR 54975). In Mexico, N. 

fossalis is known from fewer than 10 

populations clustered in three areas: 

along the international border, on the 

plateaus south of the Rio Guadalupe, 

and on the San Quintin coastal plain 

(Moran 1977). 

Previous Federal Action 

For more information on previous 

federal actions concerning Navarretia 

fossalis, refer to the final listing rule 

published in the Federal Register on 

October 13, 1998 (63 FR 54975). Efforts 

necessary for the recovery of N. fossalis 

are presented in the Recovery Plan 

(Service 1998). 

At the time of listing, we concluded 

that designation of critical habitat for 

Navarretia fossalis 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 N. fossalis (CBD, et al. v. 

Norton, No. 01–CV–2101 (S.D. Cal.)). A 

second lawsuit asserting the same claim 

was filed against the DOI and us 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 a remand of the critical habitat 

determinations to us 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 N. fossalis, if prudent, on or 

before January 30, 2004. In a motion to 

modify the July 1, 2002 order, the DOI 

and we requested that the due date for 

the N. fossalis proposed rule be 

extended until October 1, 2004 and the 

due date for the designation of final 

critical habitat be extended to October 1, 

2005. This motion was granted on 

September 9, 2003. The proposed 

critical habitat rule was signed on 

October 1, 2004 and published in the 

Federal Register on October 7, 2004 (69 

FR 60110). 

Summary of Comments and 

Recommendations 

We requested written comments from 

peer reviewers and the public on the 

proposed designation of critical habitat 

for Navarretia fossalis (69 FR 60110) 

and on the draft economic analysis 

during two separate comment periods 

noticed in the Federal Register. 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 draft economic 

analysis. 

During the comment period for the 

proposed rule that opened on October 7, 

2004, and closed on December 6, 2004, 

we received 4 comments directly 

addressing the proposed critical habitat 

designation: 1 from a peer reviewer, 1 

from a Federal agency, and 2 from 

organizations or individuals. During the 

comment period that opened on August 

31, 2005, and closed on September 14, 

2005, we received 8 comment letters 

directly addressing the proposed critical 

habitat designation and the draft 

economic analysis. In general all of the 

comments supported the general idea of 

the designation of critical habitat, 

however most of the commenters made 

suggestions or comments on sections of 

the designation and draft economic 

analysis that they felt required revision. 

Comments received were grouped into 

general issues categories relating to the 

proposed critical habitat designation for 

N. fossalis and economic analysis 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. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from five 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 

only one of the peer reviewers. The peer 

reviewer provided additional 

information, clarifications of 

occurrences, and suggestions to improve 

the final critical habitat rule (i.e., 

improvements to the primary 

constituent elements, identification of 

essential occurrences, and correction of 

factual errors). In general the peer 

reviewer agreed with designating 

critical habitat for Navarretia fossalis, 

however, the peer reviewer found the 

document in need of substantial 

revision. 

We reviewed all comments received 

from the peer reviewer and the public 

for substantive issues and new 

information regarding critical habitat for 

Navarretia fossalis. All comments are 

addressed in the following summary 

and incorporated into the final rule as 

appropriate. 

Peer Reviewer Comments 

1. Comment: The peer reviewer 

submitted several separate comments on 

Navarretia fossalis and the Western 

Riverside Multiple Species Habitat 

Conservation Plan (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 N. fossalis. 

Our Response: We appreciate the peer 

reviewer’s concerns regarding the 

MSHCP and its associated documents. 

We have incorporated detailed 

information on these documents as they 

relate to Navarretia fossalis into this 

rule under the section titled 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans’’. 

For further information, the MSHCP and 

its associated IA are available via the 

60660 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

Internet at http://rcip.org/ 

conservation.htm. 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. 

2. Comment: The peer reviewer 

disagreed with our decision to exclude 

critical habitat based on the presence of 

an existing habitat conservation plan, 

specifically the Western Riverside 

MSHCP. Comments submitted included 

the statement that the Service failed to 

provide an adequate basis for the 

exclusion of critical habitat, that our 

decision to exclude critical habitat 

based on the MSHCP’s ability to protect 

the species habitat was not adequately 

supported, and that there are federal 

agencies that 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 excluding non-Federal lands 

covered by the Western Riverside 

MSHCP outweigh the benefits of 

including non-Federal lands as critical 

habitat. Additionally, we have included 

a more detailed analysis of the benefits 

of this habitat conservation plan (HCP) 

in this final rule under the 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans’’

section. 

3. Comment: The peer reviewer 

disagreed with the Service’s statement 

in the SUPPLEMENTARY INFORMATION

section that designation of critical 

habitat provides little additional 

protection to species. 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 critical habitat 

designation would give more 

recognition and attention to Navarretia 

fossalis habitat. 

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 does the 

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 by addressing 

cumulative effects of numerous impacts 

to the habitat in certain circumstances, 

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. While 

designation of critical habitat may give 

the species habitat more recognition and 

attention, it is our experience that 

landowners generally react negatively to 

having their property designated as 

critical habitat. Consequently, this is a 

strong disincentive for them to 

cooperate in the conservation of the 

species in question. 

4. Comment: The peer reviewer 

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.’’ The reviewer believed the 

Service should 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 they can offer active 

management and other conservation 

measures for the habitat on a full-time 

and predictable basis. Critical habitat 

designations only prevent 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 look forward to working with HCP 

applicants to ensure that their plans 

meet the issuance criteria and that 

designation of critical habitat on lands 

where an HCP is in development does 

not delay the approval and 

implementation of their HCP. As stated 

in our response under Comment 4 

above, it is our experience that 

landowners generally react negatively to 

having their property designated as 

critical habitat. Additionally, HCPs offer 

conservation of covered species whether 

or not the area is designated as critical 

habitat. 

5. Comment: The peer reviewer 

suggested expanding the discussion on 

Special Management Considerations. 

Recommendations included citing 

specific language from the Act to 

support our statement that occupied 

habitat may be included in critical 

habitat only if the essential features may 

require special management or 

protection, and clarifying the extent and 

limitations of management measures 

proposed under the MSHCP. The 

reviewer was 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: As stated in the 

‘‘Critical Habitat’’ section of the 

proposed rule, section 3(5)(A) of the Act 

defines critical habitat as the specific 

areas within the geographic area 

occupied by the species on which are 

found those physical and biological 

features (i) essential to the conservation 

of the species and (ii) which may 

require special management 

considerations or protection. 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 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans’’

section). 

6. Comment: The peer reviewer 

suggested incorporating 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 Navarretia fossalis. 

Our Response: As stated in the 

‘‘Effects of Critical Habitat Designation’’

section of the proposed rule, Section 7 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60661 

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. Navarretia fossalis is 

currently known to occur 

predominantly on private lands. If 

occupied private lands were designated 

as critical habitat, any actions with a 

Federal nexus that might adversely 

affect 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. 

7. Comment: The peer reviewer 

believes that threats to the species are 

not adequately addressed in the 

proposed rule. Additional threats to 

discuss include 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 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 

Approved Habitat Conservation Plans’’

and ‘‘Special Management 

Considerations or Protections’’ sections 

of this final rule. 

Public Comments 

1. Comment: One commenter 

indicated they were interested in 

working with us to plan for the 

conservation of Navarretia fossalis. This 

commenter indicated that more 

conservation could be achieved through 

partnerships with private land owners 

than through the designation of critical 

habitat. The commenter believed the 

largest benefit of the critical habitat 

process was that it provided information 

to land owners of what areas are 

important for N. fossalis conservation 

and would not provide any extra 

protection. 

Our Response: We are currently in the 

process of contacting and working with 

this land owner to create a partnership 

that will result in the conservation of 

Navarretia fossalis at this location. 

2. Comment: One commenter 

disagreed with our exclusion of 

Department of Defense (DOD) lands 

under section 4(b)(2) of the Act as well 

as the exemption of DOD lands covered 

by an Integrated Natural Resources 

Management Plan (INRMP) under 

section 4(a)(3) of the Act. The 

commenter disagreed with removing 

these lands from the designation of 

critical habitat because they did not 

believe that the INRMP provides the 

same conservation protections to 

Navarretia fossalis that critical habitat 

would. 

Our Response: Section 318 of fiscal 

year 2004 the National Defense 

Authorization Act (Public Law 108–136) 

amended the Endangered Species Act to 

address the relationship of INRMPs to 

critical habitat by adding a new section 

4(a)(3). This provision prohibits the 

Service from designating as critical 

habitat any lands or other geographical 

areas owned or controlled by the 

Department of Defense, or designated 

for its use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary of 

the Interior determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. 

The lands at Marine Corps Air Station 

(MCAS) Miramar and Marine Corps 

Base (MCB) Camp Pendleton are 

covered by approved INRMPs that 

identify sensitive natural resources with 

various resource conservation 

requirements and management 

concerns, and both INRMPs provide a 

benefit to Navarretia fossalis. As a result 

of the INRMPs on both there have been 

base wide surveys for vernal pools and 

sensitive species that occur in vernal 

pool habitat. These surveys are then 

used to create maps for conservation 

management and to facilitate training in 

a way that can co-exist with the 

sensitive resources (for more details, see 

the Section ‘‘Application of Section 

4(a)(3) and Exclusions under Section 

4(b)(2) of the Act.’’

3. Comment: One commenter stated 

that the goals outlined in the Recovery 

Plan (Service 1998) should be included 

in this document. 

Our Response: It is our policy to use 

the original scientific research that was 

used to create the Recovery Plan in 

identifying critical habitat. The reader is 

encouraged to refer to the Recovery Plan 

to better understand the goals outlined 

in that document. 

4. Comment: One commenter stated 

that HCPs fail to address degradation of 

habitat (e.g., off-road vehicle impacts on 

vernal pools) inside the reserves. The 

commenter believes that critical habitat 

designation in these areas would 

provide additional funding 

opportunities for law enforcement 

presence through a variety of state and 

federal funding mechanisms. 

Our Response: The Service believes 

that the designation of critical habitat 

within HCPs would do little to reduce 

the impacts caused to Navarretia 

fossalis by unauthorized activities 

occurring in reserve areas. These 

activities lack a federal nexus and 

therefore would be unaffected by the 

designation of critical habitat. In most 

areas there are local ordinances that 

make such unauthorized activities 

against the law. These laws should be 

enforced in order to avoid degradation 

to the sensitive resources that the HCPs 

have been created to protect. 

5. Comment: One commenter 

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 Navarretia fossalis 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 HCP 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 

‘‘Relationship of Critical Habitat to 

Approved Habitat Conservation Plans’’

section of the proposed rule, we agree 

that the MSHCP benefits the 

conservation of Navarretia fossalis and 

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 

60662 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

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 their plans meet the issuance 

criteria and that designation of critical 

habitat on lands where an HCP is in 

development does not delay the 

approval and implementation of their 

HCP. 

6. Comment: One commenter 

disagreed with our decision to exclude 

critical habitat based on the presence of 

an existing HCP. The commenter stated 

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. 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 4 above. 

7. Comment: One commenter believed 

threats to the species were not 

adequately addressed in the proposed 

rule and the MSHCP. The commenter 

suggested discussing the threats of 

manure spreading and non-seasonal 

flows which may result from future 

development. 

Our Response: See the response to 

Peer Reviewer Comment 7 above. 

8. Comment: One commenter stated 

that failure to designate critical habitat 

within HCP boundaries would be a 

disincentive for landowners to develop 

future HCPs. 

Our Response: We disagree with this 

comment. It has been our experience 

that many different stakeholders 

participate in creating an HCP. It is 

important for these stakeholders to 

continue to have a good working 

relationship with us after the planning 

process is completed. We have found 

that the negative reaction of landowners 

to the subsequent designation of critical 

habitat can threaten the partnerships on 

which a functioning HCP is built. 

9. 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 habitat with 

essential features 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 City of 

San Diego Subarea Plan and County of 

San Diego Subarea Plan, City of 

Carlsbad HMP, and Western Riverside 

County MSHCP outweigh the benefits of 

inclusion. See the ‘‘Relationship of 

Critical Habitat to Approved Habitat 

Conservation Plans’’ section for a 

detailed discussion. We exempted 

critical habitat at Marine Corps Air 

Station Miramar and Marine Corps Base 

Camp Pendleton under section 4(a)(3) of 

the Act because their respective 

Integrated Natural Resources 

Management Plans provide a benefit to 

Navarretia fossalis. 

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. 

10. Comment: One commenter stated 

that connectivity between essential 

habitat units is lacking. 

Our Response: Connectivity between 

habitat units is likely important for the 

long-term conservation of vernal pools. 

However, we do not have adequate 

information at this time to quantify the 

extent of the area needed to maintain 

connectivity between vernal pool 

habitats. Therefore, we are unable to 

designate these areas as critical habitat. 

11. 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. Another 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 

genetic exchange and migration in 

response to climate change. 

Our Response: In making this 

designation of critical habitat we 

considered all of the published and 

unpublished literature on this species. 

This literature included information on 

the life history, habitat requirements, 

distribution, population sizes, and 

restoration of Navarretia fossalis. This 

information was used to identify the 

primary constituent elements and 

habitat areas with features essential to 

the conservation of N. fossalis. Other 

information which would have been 

helpful to the process of designating 

critical habitat, such as information 

about pollinators or the population 

genetics of this species was not 

available. 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. In addition, 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. 

Public Comments on the Draft Economic 

Analysis 

1. Comment: One commenter states 

that the Draft Economic Analysis (DEA) 

quantifies costs for projects that do not 

overlap occupied habitat for Navarretia 

fossalis and that the proposed critical 

habitat is much larger than the occupied 

habitat, exaggerating the economic 

impacts. 

Our Response: As described in 

Section 5.1, Table 6 of the DEA, past 

development projects outside of the 

footprint of any proposed critical habitat 

designation have impacted the species 

habitat within the lands proposed for 

designation. In recognition of this 

relationship, 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 described in Section 

1.2: The analysis considers the cost of 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60663 

species and habitat conservation, not 

solely costs associated with projects 

within occupied habitat. 

2. Comment: A comment provided on 

the DEA asserts that the methodology 

used to quantify development impacts is 

questionable as it does not examine and 

quantify the cost of purchasing the 

reserves for the various habitat 

conservation plans (HCPs); that land 

will have to be purchased or obtained 

through mitigation deductions and that 

projects may have to be modified to 

avoid impacts to vernal pools and 

vernal pool watersheds. The comment 

also states the DEA does not analyze the 

potential loss of developable private 

lands or the potential cost of transfer of 

ownership of lands for mitigation. 

Our Response: Section 2.2.2.1 of the 

DEA describes the model applied to 

estimate impacts to development. The 

DEA assumes that development is 

allowed in habitat areas if appropriate 

project modifications and/or mitigation 

activities are undertaken, and/or 

mitigation fees paid. That is, this open 

city modeling approach assumes that 

land is not lost to development, but 

instead that development occurs with 

mitigation. Further, the various HCPs 

that encompass the proposed critical 

habitat designation do not describe the 

exact location or timing of each acre of 

private land to be acquired for the HCP 

reserves. However, as described in 

Section 5.2.4.1, current and forecasted 

land use and population growth rates 

were available from the counties to 

spatially forecast future development 

within the proposed critical habitat 

units. 

The Western Riverside Multiple 

Species Habitat Conservation Plan 

(MSHCP) has implemented a one-time 

mitigation fee for future development 

within the boundaries of the MSHPC. 

These funds will be used by the County 

to finance the future acquisition of lands 

for the MSHCP reserve and are captured 

by the DEA (Section 5.2.5). The 

remaining HCPs do not contain a 

mitigation fee component to their 

program. As outlined in Section 5.2.2, 

however, conservation and mitigation 

activities for all the HCPs, including the 

MSHCP, can be on-site or off-site and 

can be accomplished by: restoration and 

enhancement; 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 the range of mitigation ratios among 

HCPs and the variety of mitigation 

measures available to the developer for 

conservation, the analysis presents the 

costs incurred by development for 

Navarretia fossalis conservation as a 

range. While options for mitigation 

exist, by applying the least costly 

measure to the low-end of the range of 

mitigation ratios and the most costly 

measure to the high-end of the range of 

mitigation ratios, the DEA captures and 

reports the costs associated with 

possible combinations of mitigation 

ratios and conservation efforts forecast 

to be used to offset impacts to the 

species and habitat. 

3. 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 within the 

proposed critical habitat units was 

researched. As described in Table 6 of 

Section 5.1, several development 

projects are currently in progress and 

representatives from these 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 

from these representatives. Data are not 

available on all future development 

projects during the 20 year forecast 

period; thus, where specific information 

is unavailable, the analysis estimates 

average costs of impacts to development 

on a per-acre rather than per-project 

basis. 

4. Comment: United States Marine 

Corps Air Station Miramar (MCAS 

Miramar) comments that the area is 

indeed part of a military airfield and 

that while no new development is 

currently planned, it cannot commit to 

stating that there will be no new 

development, or re-development, of 

airfield associated facilities within Unit 

NI2 during the next 20 years. 

Our Response: The DEA is consistent 

with this comment as post-designation 

effects estimated by the DEA are based 

only on activities that are ‘‘reasonably 

foreseeable’’ as described in Section 1.3. 

Furthermore, the DEA quantifies 

development impacts on developable 

land, and only 3.5 acres of the unit (677 

acres) are vacant and available for 

development. The remaining acres are 

either already developed or 

undevelopable. The DEA does not 

anticipate impacts to redevelopment of 

already developed land as the primary 

constituent elements (PCEs) for the 

species do not exist within the footprint 

of the existing development (i.e., 

buildings, runways, and roads). 

5. Comment: A comment from Los 

Angeles County Department of Regional 

Planning states that the DEA should 

acknowledge that designation of critical 

habitat Units 1A and 1B should not 

impose a financial burden on the 

owners of that property because 

development of the southern portion of 

that property, if approved, would allow 

a reasonable return on their investment 

with the preservation of the habitat. 

Our Response: The DEA identifies 

and quantifies where possible costs of 

Navarretia fossalis conservation efforts. 

In determining the impact to projects of 

N. fossalis habitat conservation, the 

acreage of developable land in Units 1A 

and 1B was obtained from Los Angeles 

County Department of Regional 

Planning. This information is contained 

in Table 13, Acreage by Current Land 

Use Category and Habitat Unit, and 

identifies 471.1 acres of developable 

land in Unit 1A and 58.5 acres in Unit 

1B. The DEA estimates a range of 

potential impacts that may be associated 

with development projects on the 

specified number of acres within these 

units as summarized in Section 5.2.5 

Estimation Results: Cost of Mitigation 

Fees and Conservation Activities. The 

DEA anticipates that conservation of N. 

fossalis and habitat will not preclude 

development. 

6. Comment: One commenter states 

that the description of the Western 

Riverside MSHCP does not explain how 

the MSHCP will conserve essential 

habitat for Navarretia fossalis, and the 

economic impacts of implementing this 

plan. The commenter further states the 

analysis should note the amount of 

potential MSHCP reserve acreage in 

each critical habitat unit and the 

amount of essential habitat that will be 

conserved in each unit. 

Our Response: The economic impacts 

of implementing the MSHCP for 

Navarretia fossalis are captured in the 

DEA through the quantification of 

mitigation fees and of the costs of 

project modifications as described in 

Section 5.2.5. The mitigation fee 

collected from future development will 

be used to finance the acquisition of 

lands for the reserve and certain 

improvements necessary to implement 

the goals and objectives of the MSHCP. 

As described in Section 4.4.4, the 

MSHCP is criteria based, and the 

quantity and location of acres that will 

be added to the reserve within each 

critical habitat unit is not known with 

certainty. 

7. Comment: A comment provided by 

the California Native Plant Society 

(CNPS) and Center for Biological 

Diversity (CBD) states that the cost 

estimates of species conservation as 

provided in the DEA conflict with those 

estimated in the Western Riverside 

MSHCP and the San Diego Multiple 

Species Conservation Plan (MSCP), 

which are less. Therefore, either the 

60664 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

DEA or the HCPs 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. The MSCP 

similarly describes the costs of 

financing the plan’s implementation. 

These impacts as described in the plans, 

however, are not directly comparable to 

the economic impact of Navarretia 

fossalis conservation as quantified in 

the DEA. Primarily, the policy actions 

being analyzed are different. The 

MSHCP and MSCP estimate the costs of 

acquiring and managing reserve areas 

and other conservation actions for the 

multiple species covered under the 

plan. Further, the geographic scope of 

the plans are different from that of the 

potential critical habitat designation. 

8. Comment: According to one 

comment, the Draft Economic Analysis 

(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 Ramona 

Expressway is part of the State Route 79 

project described in Section 6.1.1.2 of 

the DEA. Consultants hired by Cal Trans 

for this project were contacted during 

the development of the DEA and 

indicated that it is too early to estimate 

what project modifications or mitigation 

may be required. Further, research 

undertaken during the development of 

the DEA did not identify a dam across 

the San Jacinto River and additional 

research conducted in response to 

public comment has also not identified 

a dam construction project on the San 

Jacinto River. In the case that this 

comment is referencing the San Jacinto 

River Flood Control Project, the 

associated costs are captured in Section 

6.2 of the DEA. 

9. Comment: A comment provided by 

MCAS Miramar identifies future actions 

to protect the species in addition to 

those quantified in the DEA. These 

include (1) vernal pool basin 

delineation, (2) identification of 

restoration and re-establishment 

opportunities, (3) flora and fauna 

inventories, (4) maintenance and 

monitoring selected vernal pool areas, 

(5) establishment of an interpretive 

walk, (6) installation of signs and 

fencing, and (7) funding for an 

established burn study. 

Our Response: The DEA details 

conservation costs at MCAS Miramar in 

Section 6.4.1, Table 38. Research 

undertaken during the development of 

the DEA and following receipt of this 

comment confirms that the costs 

estimated in the DEA capture these 

categories of impact. The first, third, 

and fourth actions described in the 

comment letter are included in ‘‘Vernal 

Pool Mapping/Survey’’ as quantified in 

the DEA. The DEA also includes 

$10,000 annually for maintenance and 

monitoring (action number four) in the 

category ‘‘Vernal Pool Management.’’

‘‘Public Education,’’ as quantified in the 

DEA, includes $10,000 for the 

interpretive walk (action number five) 

and $80,000 for signs (action number 

six), and ‘‘Vernal Pool fire Effects 

Study’’ as quantified includes $25,000 

for the burn study in 2006 (action 

number 7). 

10. Comment: MCAS Miramar also 

comments that the DEA incorrectly 

explains the decision of where to locate 

the MV22 Osprey aircraft. In fact, there 

are three alternative basing locations for 

the MV22 Osprey on MCAS Miramar 

being evaluated; only one however 

overlaps with habitat that has features 

essential to the conservation of 

Navarretia fossalis. While this will be 

considered in evaluating the location 

alternatives, it is likely that the MV22 

will be located at MCAS Miramar, 

potentially within the essential habitat 

for N. fossalis. 

Our Response: Section 6.4.1 of the 

DEA describes this project. This 

comment provides further information 

on the decision-making process but does 

not change the economic impacts to 

MCAS Miramar as described in the 

DEA. 

11. Comment: One comment states 

that the report appears biased because it 

implies that low income farmers are the 

principal landowners within the 

essential habitat 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 

31,086 acres of habitat with essential 

features is unknown. As described in 

Section 6.8, approximately one-third of 

all habitat with essential features is 

classified as agriculture land, and this 

agriculture land represents 65 percent of 

the developable acres. Considering 

farmers own a large percentage of the 

areas 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. 

12. Comment: One commenter 

requests that more detail be provided on 

local regulations that protect Navarretia 

fossalis habitat within San Diego, Los 

Angeles, and Riverside counties. 

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. 

13. Comment: One comment states 

that the DEA fails to discuss the 

potential U.S. Army Corps of Engineer 

(USACE) jurisdiction of the vernal pools 

found in Los Angeles County. 

Our Response: As described in 

Section 5.2.3, the DEA assumes that 

vernal playa habitat occurring in Los 

Angeles County is under USACE 

jurisdiction. 

14. Comment: Three commenters 

suggest the economic analysis should be 

limited to the 4,301 acres proposed for 

critical habitat rather than the 31,086 

acres of essential habitat, which 

comprise lands proposed for 

designation, excluded from designation, 

and not included in the designation. 

Our Response: Conducting the 

economic analysis for all lands that 

contain the physical and biological 

features essential to the conservation of 

the species allows the Service to fully 

describe the economic costs of 

designating and excluding critical 

habitat. 

15. Comment: A comment provided 

asserts that the DEA needs to explain 

the difference between ‘‘excluded’’ and 

‘‘not included’’ lands and how these 

two designations would affect the 

management of the species. 

Our Response: The term ‘‘excluded’’

refers to lands that meet the definition 

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

of the Act and were excluded as critical 

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

The term ‘‘not included’’ refers to lands 

that meet the definition of critical 

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

and were exempted as critical habitat 

under section 4(a)(3) of the Act. In both 

cases, no critical habitat was designated 

and section 7(a)(2) of the Act would not 

apply. 

16. Comment: Three commenters 

request an extension of the public 

comment period and/or suggest the 

public review period was too brief. 

Our Response: We were unable to 

extend the comment period or have a 

lengthy comment period because of the 

court-ordered deadline to publish the 

final rule. 

Comments from States 

Section 4(i) of the Act states, the 

Secretary shall submit to the State 

agency a written justification for her 

failure to adopt regulations consistent 

with the State agency’s comments or 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60665 

petition. The California Department of 

Fish and Game (CDFG) did not provide 

comments on the proposed rule or on 

the draft economic analysis to designate 

critical habitat for Navarretia fossalis. 

Department of Defense (DOD) 

Comments 

We received comments from the U.S. 

Navy (Navy) regarding the proposed 

designation of critical habitat on Marine 

Corps Base, Camp Pendleton (MCB 

Camp Pendleton) regarding the 

proposed designation of critical habitat. 

No other Federal agencies submitted 

comments on this critical habitat. 

1. Comment: The Navy believes that 

MCB Camp Pendleton’s INRMP 

provides a benefit to Navarretia fossalis 

and should be exempt from critical 

habitat under 4(a)(3) of the Act. The 

Navy assured us that MCB Camp 

Pendleton is committed to 

implementing the INRMP by using an 

ecosystem approach to conservation. 

Our Response: In the proposed rule, 

we excluded ‘‘mission critical training 

areas’’ on MCB Camp Pendleton under 

section 4(b)(2) of the Act due to the 

effect of critical habitat on national 

security. However, MCP Camp 

Pendleton provided us with information 

that required us to re-evaluate the 

benefits of their INRMP to Navarretia 

fossalis. As a result, we have 

determined that their INRMP benefits 

the species and MCB Camp Pendleton is 

exempt from critical habitat pursuant to 

section 4(a)(3) of the Act (see 

‘‘Application of Section 4(a)(3) and 

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

Act’’ for a detailed discussion). 

2. Comment: The Navy stated that the 

consideration of the potential impacts to 

MCB Camp Pendleton’s military 

mission from the proposed critical 

habitat supports exclusion under 4(b)(2) 

of the Act of lands that have value for 

military training and operations in the 

event that 4(a)(3) of the act was not 

warranted. They stated that the benefits 

of avoiding adverse impacts to military 

readiness capabilities make exclusion of 

MCB Camp Pendleton’s lands both 

necessary and supportable. 

Our Response: All DOD lands with 

habitat features essential for Navarretia 

fossalis on MCB Camp Pendleton are 

exempt from being designated as critical 

habitat pursuant to section 4(a)(3) of the 

Act, and therefore, no exclusions are 

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

Act. For additional information, please 

see our responses to comment 2 under 

Public Comments and comment 1 

above. Also see Application of Section 

4(a)(3) and Exclusions under Section 

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

discussion of the application of section 

4(a)(3) of the Act. 

Summary of Changes from the 

Proposed Rule 

In developing the final critical habitat 

designation for Navarretia fossalis, we 

reviewed public comments received on 

the proposed rule and draft economic 

analysis; conducted further evaluation 

of lands included as proposed critical 

habitat; and refined our mapping 

boundaries. Based on our analysis we 

made several changes to the proposed 

rule, including refining the mapping 

area and changes based on sections 

4(a)(3) and 4(b)(2) of the Act. 

We refined our mapping criteria to 

better delineate habitat with essential 

features. When we reviewed our 

mapped critical habitat units we found 

there were areas that did not contain the 

physical and biological features 

essential to the conservation of 

Navarretia fossalis. For example, some 

areas contained land that was downhill 

from vernal pool complexes containing 

N. fossalis. This adjacent land may act 

as a buffer and contribute to the overall 

health of the vernal pool ecosystem, but 

did not contain the primary constituent 

elements (PCEs) for this species. In 

other areas buildings or paved roads 

were included in our proposed 

designation. In most cases this was due 

to our minimum grid cell size of 100 

meters (328 feet), but where the majority 

of the grid was developed, we 

eliminated these grid cells from critical 

habitat. There were also areas on MCAS 

Miramar where we had new survey data 

which did not support our analysis of 

specific areas that we proposed as 

having essential features. Even though 

these areas are exempt from critical 

habitat under 4(a)(3) of the Act, we felt 

it was important to clarify that these 

areas are not considered essential for the 

species at this time. These refinements 

resulted in a reduction in the amount of 

land designated as critical habitat in 

Units 1A, 2, 3, 4E, 5A and 5D (see Table 

1). Areas exempt from the designation of 

critical habitat under sections 4(a)(3) 

and 4(b)(2) of the Act were also refined, 

resulting in further reduction of the 

amount of land designated as habitat 

with essential features. Overall these 

refinements resulted in a reduction of 

habitat for N. fossalis from 31,086 ac 

(12,580 ha) to 22,804 ac (9,228 ha). 

In the proposed rule, we excluded 

‘‘mission critical training areas’’ on 

MCB Camp Pendleton under 4(b)(2) of 

the Act due to the effect of critical 

habitat on national security. However, 

MCP Camp Pendleton provided us with 

information that required us to reevaluate the benefits of their INRMP to 

Navarretia fossalis. As a result, we have 

determined that their INRMP benefits 

the species and are now exempting 

‘‘mission critical training areas’’ on 

MCB Camp Pendleton from final critical 

habitat under section 4(a)(3) of the Act 

(see ‘‘Application of Section 4(a)(3) of 

the Act’’ for a detailed discussion). 

Areas Removed from Critical Habitat 

Designation 

We re-evaluated our proposed critical 

habitat unit boundaries, refined our 

mapping methodology, and used new 

information to remove additional lands 

that do not contain the physical and 

biological features essential to the 

conservation of Navarretia fossalis. 

These removed lands are as follows (see 

Table 1): 

1. Unit 2: San Diego North Coastal 

Mesas Critical Habitat Unit, San Diego 

County. We removed approximately 

117.5 ac (48 ha) of land because these 

areas have been developed or no longer 

contribute to the hydrology of the vernal 

pools that support Navarretia fossalis. 

2. Unit 3: San Diego Central Coastal 

Mesas Critical Habitat Unit, San Diego 

County. We removed approximate 72 ac 

(29 ha) because the known occurrences 

have been lost to residential 

development and the physical and 

biological features essential to the 

conservation of Navarretia fossalis are 

no longer present. 

3. Unit 4: San Diego Inland Valleys 

Critical Habitat Unit, San Diego County. 

We removed Subunit 4A (10 ac) (4 ha) 

and Subunit 4B (42 ac) (17 ha) in the 

City of San Marcos because these areas 

do not currently support Navarretia 

fossalis, there is no current information 

that Navarretia fossalis occurs within 

Subunit 4A and Subunit 4B, there is no 

information that these vernal pool areas 

contain the physical and biological 

features essential to the conservation of 

Navarretia fossalis. We removed 

portions of Subunit 4E in downtown 

Ramona (531 ac) (215 ha) and in other 

areas of the Ramona Grasslands (2,335 

ac) (945 ha) (the remaining portions of 

Subunit 4E) because the vernal pool 

areas within downtown Ramona and in 

the other areas of the Ramona 

Grasslands do not currently support 

Navarretia fossalis, none of the 

historical occurrences are believed to be 

extant, there is no current information 

that N. fossalis occurs within downtown 

Ramona or in the other areas of the 

Ramona Grasslands, and there is no 

information that these vernal pool areas 

contain the physical and biological 

features essential to the conservation of 

N. fossalis. 

4. Unit 5: San Diego Southern Coastal 

Mesas Critical Habitat Unit, San Diego 

60666 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

County. We removed Subunit 5D (150 

ac) (61 ha) because there is no current 

or historical information that Navarretia 

fossalis occurs within Subunit 5D, there 

is no information that these vernal pool 

areas contain the physical and 

biological features essential to the 

conservation of N. fossalis; a portion of 

land identified as containing the 

physical and biological features 

essential to the conservation of N. 

fossalis in the proposed rule has been 

developed for the Border Infrastructure 

System and no longer contribute to the 

hydrology of the vernal pools; and (4) 

the vernal pool restoration work being 

conducted at Arnie’s Point is for the San 

Diego fairy shrimp (Branchinecta 

sandiegonensis) and Riverside fairy 

shrimp (Streptocephalus woottoni) and 

not to offset any losses to N. fossalis. 

In addition to the above revisions, we 

made adjustments to the boundaries of 

the areas included in the critical habitat 

designation. Adjustments were made for 

two reasons: (1) A selection of the 328- 

ft (100-m) grid cells used for Geographic 

Information Systems (GIS) mapping 

contained mostly urbanized land that is 

non-essential to the species; and, (2) 

grid cells containing all or mostly 

upland habitat not directly contributing 

to the hydrology of the vernal pools 

were removed. Since these areas do not 

contain the PCEs, we removed them 

from the final critical habitat 

designation. 

TABLE 1.—SUMMARY OF CHANGES FROM THE PROPOSED RULE DESIGNATING CRITICAL HABITAT (CH) FOR NAVARRETIA

FOSSALIS

Proposed CH Final CH Reduction 

(percent) 

Los Angeles County— 

Cruzan Mesa (Unit 1A) ........................................................ 534 ac ......................................

216 ha ......................................

294 ac ......................................

119 ha ......................................

45 

Plum Canyon (Unit 1B) ........................................................ 62 ac ........................................

25 ha ........................................

32 ac ........................................

13 ha ........................................

48 

San Diego County— 

Poinsettia Lane Commuter Station (Unit 2) ......................... 143 ac ......................................

58 ha ........................................

22 ac ........................................

9 ha ..........................................

85 

Santa Fe Valley (Unit 3) ...................................................... 143 ac ......................................

58 ha ........................................

0 ac ..........................................

0 ha ..........................................

100 

San Marcos (Unit 4A) .......................................................... 10 ac ........................................

4 ha ..........................................

0 ac ..........................................

0 ha ..........................................

100 

San Marcos (Unit 4B) .......................................................... 42 ac ........................................

17 ha ........................................

0 ac ..........................................

0 ha ..........................................

100 

San Marcos (Subunit 4C1 and 4C2) ................................... 99 ac ........................................

40 ha ........................................

73 ac ........................................

30 ha ........................................

26 

San Marcos (Unit 4D) .......................................................... 10 ac ........................................

4 ha ..........................................

7 ac ..........................................

3 ha ..........................................

30 

Ramona (Unit 4E) ................................................................ 2,866 ac ...................................

1,160 ha ...................................

86 ac ........................................

35 ha ........................................

97 

Sweetwater Vernal Pools (Unit 5A) ..................................... 136 ac ......................................

55 ha ........................................

89 ac ........................................

36 ha ........................................

35 

Otay River Valley (Unit 5B) ................................................. 42 ac ........................................

17 ha ........................................

42 ac ........................................

17 ha ........................................

0 

Otay Mesa (Unit 5C) ............................................................ 64 ac ........................................

26 ha ........................................

14 ac ........................................

6 ha ..........................................

78 

Arnie’s Point (Unit 5D) ......................................................... 150 ac ......................................

61 ha ........................................

0 ac ..........................................

0 ha ..........................................

100 

Total .............................................................................. 4,301 ac ...................................

1,741 ha ...................................

652 ac ......................................

264 ha ......................................

85 

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 provisions of 

section 4 of [the] Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) which may 

require special management 

considerations or protection; and (ii) 

specific areas outside the geographical 

area occupied by a species at the time 

it is listed in accordance with the 

provisions of section 4 of [the] Act, 

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 

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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60667 

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 essential to 

the conservation of the species and, 

therefore, included in the critical habitat 

designation. 

The Service’s 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 (Pub. 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 

(Pub. 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 

the best scientific data available. 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 

This includes information from the 

proposed listing rule (64 FR 71714), 

final listing rule (67 FR 44382), data 

from research and survey observations 

published in peer-reviewed articles, site 

visits, regional Geographic Information 

System (GIS) layers, soil, and species 

coverages, and data compiled in the 

California Natural Diversity Database 

(CNDDB). 

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

the Act, we use the best scientific data 

available in determining areas that are 

essential to the conservation of 

Navarretia fossalis. We reviewed and 

evaluated the Recovery Plan for Vernal 

Pools of Southern California and its 

supporting information and 

documentation (Service 1998), section 7 

consultations and relevant project 

reports, site surveys conducted by 

Service biologists, research and survey 

observations published in peerreviewed articles, regional GIS 

vegetation, soil, and species coverages, 

and data compiled in the California 

Natural Diversity Database (CNDDB). 

After creating a GIS coverage of the 

habitat areas, we created legal 

descriptions of the final critical habitat 

boundaries. 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 critical 

habitat. Habitat areas with essential 

features were then analyzed with 

respect to sections 3(5)(A), 4(a)(3), and 

4(b)(2) of the Act, and any locations that 

should not be included or excluded 

from proposed critical habitat were 

identified. We designated critical 

habitat on the specific areas within the 

geographical area occupied by the 

species at the time of listing on which 

are found those physical or biological 

features essential to the conservation of 

the species and which may require 

special management considerations. In 

the final listing rule, we identified 

Navarretia fossalis from Otay Mesa in 

southern San Diego County, coastal San 

Diego County, Ramona in central San 

Diego County, and on Federal lands at 

Marine Corps Base Camp Pendleton and 

Marine Corps Air Station Miramar in 

central San Diego County; San Jacinto 

River and the Hemet area in western 

Riverside County and southern 

Riverside County; and northwestern Los 

Angeles County. In this rule, Unit 1 is 

in northwestern Los Angeles County, 

Unit 2 is in coastal San Diego County, 

Subunit 4E is in Ramona, and Subunits 

5B and 5C are on Otay Mesa. We are 

also designating critical habitat on 

specific areas outside the geographic 

area occupied by N. fossalis at the time 

of listing upon a determination by the 

Secretary of the Interior that such areas 

are essential for the conservation of N. 

fossalis. Subunits 4C and 4D in the City 

of San Marcos and Subunit 5A were not 

specifically mentioned in the final 

listing rule for N. fossalis, but 

information on these occurrences are 

contained in our final listing rule files 

for this species. We believe those 

subunits are essential for the 

conservation of N. fossalis because these 

populations are needed for recovery, to 

maintain the geographical distribution 

of the species, and unique soils. The 

observations for Subunits 4C and 4D are 

dated 1993 and 1995 and the CNDDB 

records for N. fossalis at San Marcos are 

in our final listing rule files for this 

species. The observation for Subunit 5A 

is dated 1985 and our CNDDB record for 

N. fossalis located southeast of 

Sweetwater Reservoir is in our final 

listing rule files for this species. 

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 

designate as critical habitat that were 

within the geographical area occupied 

by the species at the time of listing, 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 or 

protection. These include, but are not 

60668 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

limited to: space for individual and 

population growth and for normal 

behavior; water, air, light, minerals, or 

other nutritional or physiological 

requirements; space for growth, 

development and reproduction, 

including the space necessary for 

pollinators to live; and habitats that are 

protected from disturbance or are 

representative of the historic 

geographical and ecological 

distributions of a species. 

The specific biological and physical 

features, otherwise referred to as the 

primary constituent elements, which 

comprise Navarretia fossalis habitat are 

based on specific components that 

provide for the essential biological 

needs of the species as described below. 

Space for Individual and Population 

Growth, Including Sites for 

Germination, Pollination, Reproduction, 

Pollen and Seed Dispersal, and Seed 

Dormancy 

Navarretia fossalis is primarily 

associated with vernal pools and alkali 

wetlands including playa and sink 

habitats (Moran 1977, Bramlet 1993; 

Day 1993) at elevations between sea 

level and 4,250 ft (1,300 m), and on flat 

to gently sloping terrain. The species 

also occasionally occurs in ditches and 

other artificial depressions that mimic 

vernal pool habitat (Moran 1977). 

Navarretia fossalis flowers from May 

through June. This species has evolved 

mechanisms to self-pollinate (Spencer 

1997). The fruit of this species consists 

of indehiscent (i.e., not opening 

spontaneously at maturity to release 

seeds) capsules 0.08 to 0.12 inches (in) 

(2 to 3 millimeters (mm)) long 

containing 5 to 25 seeds. The seeds 

develop a sticky, slimy coating when 

wet, which may retain moisture and aid 

in germination (Moran 1977). After 

fruiting, the species dries out and loses 

its color rapidly, and can be difficult to 

detect late in the dry season or in dry 

years. The number of individuals of N. 

fossalis at a given population site varies 

annually in response to the timing and 

amount of rainfall and temperature. 

Sufficient studies to reveal possible 

pollinators of Navarretia fossalis have 

not yet been conducted. Seeds of this 

plant are likely dispersed locally by the 

flow of water throughout the vernal pool 

or alkali wetlands in which this plant 

occurs. More distant dispersal is most 

likely accomplished by the spiney 

flower heads clinging to the fur of larger 

mammals or via mud containing seeds 

stuck to birds that visit these wetlands 

(pers. comm. with Ellen Bauder, Ph.D., 

San Diego State University). 

Areas That Provide Basic Requirements 

for Growth, Such as Water, Light, and 

Minerals 

Navarretia fossalis requires areas that 

are ephemerally wet in the winter and 

spring months and dry in the summer 

and fall months. This type of ephemeral 

habitat does not allow either upland 

plants that live in a dry environment 

year round or wetland plants that 

require year round moisture to become 

established (Keeler-Wolf et al. 1998). 

These habitats then allow for 

specialized plants, such as the N. 

fossalis, to benefit from the exclusion of 

strictly upland and wetland plants. 

Habitats That Are Representative of the 

Historic Geographical and Ecological 

Distribution of the Species 

The distribution of Navarretia fossalis 

ranges from northwestern Los Angeles 

County and western Riverside County, 

south through coastal San Diego County, 

California to northwestern Baja 

California, Mexico (Day 1993; Munz 

1974; Reiser 2001, CNPS 2001; CNDDB 

2003). Fewer than 30 populations exist 

in the United States, with nearly 60 

percent of these populations 

concentrated in three locations: Otay 

Mesa in southern San Diego County, 

along the San Jacinto River in western 

Riverside County, and near Hemet in 

Riverside County (63 FR 54975). In 

Mexico, N. fossalis is known from fewer 

than 10 populations clustered in three 

areas: along the international border, on 

the plateaus south of the Rio Guadalupe, 

and on the San Quintin coastal plain 

(Moran 1977). 

Primary Constituent Elements for 

Navarretia fossalis 

Based on our current knowledge of 

the life history, biology, and ecology of 

the species, and the requirements of the 

habitat to sustain the essential life 

history functions of the species, we have 

determined that primary constituent 

elements for Navarretia fossalis are: 

(1) Vernal pool, alkali playa, or alkali 

sink habitats, at elevations between sea 

level and 4,250 ft (1,300 m) found on 

flat to gently sloping terrain; 

(2) Soils with a clay component or an 

impermeable surface or subsurface layer 

known to support vernal pool habitat 

including, but not limited to CienebaPismo-Caperton in Los Angeles County, 

Domino, Traver, and Willows in 

Riverside County and Huerhuero, 

Placentia, Olivenhain, Stockpen, and 

Redding in San Diego. Clay soils serve 

to inhibit rapid infiltration of rainwater. 

These soils also act as a buffer to 

moderate the water chemistry and rate 

of loss of water to evaporation. Clay 

soils of this nature are known to support 

vernal pool, alkali playa, and alkali sink 

habitats; and, 

(3) Associated hydrology that 

provides water to fill the pools in the 

winter and spring months. A pool with 

functional hydrology includes a 

combination of surface and 

underground water flow, native upland 

vegetation, and intact soil substrate. An 

inundated phase occurring in the winter 

and spring months followed by a dry 

phase in the summer and fall months is 

necessary to maintain these specialized 

habitats. 

Criteria Used To Identify Habitat Areas 

With Essential Features 

We have determined that 

approximately 22,804 ac (9,228 ha) of 

land in Los Angeles, Riverside, and San 

Diego counties contain the physical and 

biological features that are essential to 

the conservation of the species. Of this, 

21,458 ac (8,684 ha) of land with 

essential features for the conservation of 

Navarretia fossalis Riverside and San 

Diego counties are exempt, pursuant to 

section 4(a)(3) of the Act, or have been 

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

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

authorizes us to issue permits for the 

take of listed animal 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 encourage HCP applicants to also 

incorporate measures to provide for the 

conservation of listed plant species. We 

often exclude from designated critical 

habitat non-Federal public lands and 

private lands that are covered by an 

existing operative HCP that provides for 

the conservation needs of the species for 

which critical habitat is being 

designated because we determine that 

the benefits of exclusion outweigh the 

benefits of inclusion as provided in 

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

exempt under section 4(a)(3) of the Act 

include the following: (1) Lands on 

Marine Corps Air Station Miramar 

(MCAS, Miramar); (2) lands on Marine 

Corps Base, Camp Pendleton (Camp 

Pendleton). The areas excluded under 

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

following: (1) Areas within the City of 

San Diego Subarea Plan and County of 

San Diego Subarea Plan of the San Diego 

Multiple Species Conservation Program 

(MSCP); (2) areas within the approved 

Carlsbad subarea plan/habitat 

management plan for the Northwestern 

San Diego Multiple Habitat 

Conservation Plan (MHCP); and, (3) 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60669 

areas within the approved Western 

Riverside Multiple Species Habitat 

Conservation Plan (MSHCP). 

The following criteria were used to 

map the areas with essential features for 

the conservation of Navarretia fossalis: 

(1) Vernal pools and alkali wetlands 

including grassland, playa, and sink 

habitats known to be occupied by N. 

fossalis; (2) localities considered 

essential to the conservation of the 

species; (3) areas of suitable topography 

and intact clay soil substrate, such as 

Cieneba-Pismo-Caperton in Los Angeles 

County, Domino, Traver, and Willows 

in Riverside County and Huerhuero, 

Placentia, Olivenhain, Stockpen, and 

Redding in San Diego, with minimal 

disturbance; and, (4) local watersheds 

associated with occupied vernal pools 

and alkali wetlands necessary to 

maintain the hydrologic regime required 

to support the species. 

We are designating critical habitat on 

lands that we have determined are 

occupied at the time of listing and 

contain the primary constituent 

elements and those additional areas 

found to be essential to the conservation 

of Navarretia fossalis. 

When determining critical habitat 

boundaries, we made every effort to 

avoid designating developed areas such 

as buildings, paved areas, boat ramps, 

and other structures that lack PCEs for 

Navarretia fossalis. Any such structures 

inadvertently left inside critical habitat 

boundaries are not considered part of 

the designated critical habitat unit. This 

also applies to the land on which such 

structures sit directly. Therefore, 

Federal actions limited to these areas 

would not trigger section 7 

consultations, unless they affect the 

species and/or PCEs in adjacent critical 

habitat. 

A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our supporting 

record for this rulemaking and in the 

proposed critical habitat designation (69 

FR 60110). 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the physical and 

biological features determined to be 

essential for conservation of the species 

may require special management 

considerations or protection. All of the 

units designated as critical habitat 

contain the physical and biological 

features which may require special 

management considerations or 

protection. Navarretia fossalis is 

threatened by habitat destruction and 

fragmentation from urban and 

agricultural development, pipeline 

construction, off-road vehicle activity, 

trampling by cattle and sheep, weed 

abatement, fire suppression practices 

(including discing and plowing to 

remove weeds and create fire breaks), 

alteration of hydrology and floodplain 

dynamics (including excessive flooding 

and channelization), and competition 

from alien plant species (63 FR 54975). 

Habitat destruction and loss is the 

greatest threat to this species (CNDDB 

2004), followed by disruption of natural 

hydrologic regimes that support 

populations of N. fossalis. Projects that 

occur adjacent to vernal pools, or within 

the watershed of designated critical 

habitat, may alter the hydrology of the 

vernal pools and make conditions 

unsuitable for the growth and 

reproduction of N. fossalis. In some 

locations encroachment and 

competition by non-native plants for 

space, water, and nutrients can displace 

N. fossalis. Management of non-native 

weeds is necessary to maintain existing 

population of N. fossalis (Bramlet 1996). 

Some of these special management 

considerations such as the presence of 

exotic species affect the success of 

Navarretia fossalis throughout its range, 

other threats impact N. fossalis on a 

unit-by-unit basis. For example, Unit 1A 

and 1B at Cruzan Mesa is occasionally 

used as for filming movies (pers. comm. 

Daryl Koutnik, Ph.D., Supervising 

Regional Planner, County of Los 

Angeles). Movie production may impact 

the vernal pool basins by compaction, or 

displace standing plants while N. 

fossalis is setting seed and flowering, or 

may inadvertently introduce fill 

material into vernal pools, thus altering 

the habitat. 

Unit 2 is protected by a conservation 

easement, but the physical and 

biological features remain in need of 

special management to address invasive 

non-native weeds that outcompete and 

displace Navarretia fossalis, changes to 

the local hydrology as the surrounding 

watershed becomes urbanized, and 

unauthorized trespass that tramples 

plants and compacts vernal pools. 

Brassica negra (black mustard) and 

Lythrum hyssopifolia (hyssop 

loosestrife) are the major exotic species 

that require control in this unit and 

these non-native weeds can displace 

and outcompete N. fossalis. The 

watershed for this unit is nearly 

completely urbanized and special 

management considerations are needed 

to address the quality and quantity of 

the run-off into this unit. 

In San Diego County the invasion of 

exotic grasses is of concern in Unit 4 

and Unit 5 because these non-native 

weeds can outcompete Navarretia 

fossalis for space, water, and nutrients. 

Lolium multiflorum (annual or italian 

ryegrass) poses the greatest management 

concern because it can withstand period 

of inundation, produces large quantities 

of seed and forms a thick thatch as is 

dies each year. 

Critical Habitat Designation 

We are designating approximately 652 

ac (264 ha) of critical habitat for 

Navarretia fossalis in Los Angeles and 

San Diego Counties, California (see 

Table 1). Areas designated as critical 

habitat are under Federal, State, local, 

and private ownership. The 

approximate area of designated critical 

habitat by county and land ownership is 

shown in Table 2. Certain lands in 

Riverside and San Diego counties 

considered essential to N. fossalis have 

not been included or have been 

excluded from critical habitat based on 

our 4(a)(3) and 4(b)(2) analyses; these 

are summarized in Table 3. 

TABLE 2.—APPROXIMATE CRITICAL HABITAT AREA (ACRES (AC); HECTARES (HA)) FOR NAVARRETIA FOSSALIS IN CALIFORNIA BY COUNTY AND LAND OWNERSHIP. ESTIMATES REFLECT THE TOTAL AREA WITHIN CRITICAL HABITAT UNIT

BOUNDARIES

County 

Federal 

(San Diego National Wildlife 

Refuge) 

Private Total 

Los Angeles ................................... 0 ac ...............................................

(0 ha) ............................................

326 ac ...........................................

(132 ha) ........................................

326 ac. 

(132 ha). 

Riverside ........................................ 0 ac ...............................................

(0 ha) ............................................

0 ac ...............................................

(0 ha) ............................................

0 ac. 

(0 ha). 

60670 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

TABLE 2.—APPROXIMATE CRITICAL HABITAT AREA (ACRES (AC); HECTARES (HA)) FOR NAVARRETIA FOSSALIS IN CALIFORNIA BY COUNTY AND LAND OWNERSHIP. ESTIMATES REFLECT THE TOTAL AREA WITHIN CRITICAL HABITAT UNIT

BOUNDARIES—Continued 

County 

Federal 

(San Diego National Wildlife 

Refuge) 

Private Total 

San Diego ...................................... 42 ac .............................................

(17 ha) ..........................................

284 ac ...........................................

(72 ha) ..........................................

326 ac. 

(88 ha). 

Total ........................................ 42 ac .............................................

(17 ha) ..........................................

610 ac ...........................................

(ha) ...............................................

652 ac. 

(264 ha). 

* Federal lands include Department of Defense and other Federal land. 

** Not Applicable because all lands in Riverside County that are essential for Navarretia fossalis are excluded under 4(b)(2) of the Act. 

TABLE 3.—APPROXIMATE AREAS WITH ESSENTIAL FEATURES FOR THE CONSERVATION OF NAVARRETIA FOSSALIS, EXCLUDED AREAS WITH ESSENTIAL FEATURES FOR THE CONSERVATION OF NAVARRETIA FOSSALIS, AND CRITICAL HABITAT (ACRES (AC); HECTARES (HA)) FOR NAVARRETIA FOSSALIS IN LOS ANGELES, SAN DIEGO, AND RIVERSIDE COUNTIES, CALIFORNIA. 

[Note: Table currently being revised in Carlsbad] 

Total areas with essential features for the conservation of Navarretia fossalis .................................................................................... 17,908 ac. 

(7,247 ha). 

Areas with essential features for the conservation of Navarretia fossalis exempted from critical habitat pursuant to section 4(a)(3) 

of the Act due to an INRMP that benefits Navarretia fossalis (Marine Corps Air Station (MCAS), Miramar and Marine Corps 

Base (MCB), Camp Pendleton).

128 ac. 

(52 ha). 

Areas with essential features for the conservation of Navarretia fossalis excluded from critical habitat pursuant to section 4(b)(2) 

of the Act: Completed HCPs (San Diego Multiple Species Conservation Program (MSCP), Northwestern San Diego Multiple 

Habitat Conservation Plan (MHCP) and Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP)), 

Areas subject to completed conservation agreements.

18,619 ac. 

(7,535 ha). 

Total areas with essential features for the conservation of Navarretia fossalis exempted or excluded from critical habitat ............... 18,747 ac. 

(7,586 ha). 

Total critical habitat ................................................................................................................................................... 652 ac. 

(264 ha). 

Lands designated as critical habitat 

are divided into four units (Units 1 

through 5). No lands within Unit 3 were 

designated as critical habitat because 

Navarretia fossalis is no longer present. 

Units 1, 4, and 5 were further divided 

into subunits (1A, 1B, 4C1 and 4C2, 4D, 

4E, 5A, 5B, 5C) based on their 

geographical location. Subunits 4A and 

4B have been dropped because these 

areas no longer support N. fossalis. Unit 

boundaries were delineated based on 

geographical location of vernal pools, 

soil types, associated watersheds, and 

local variation of topographic position 

(i.e., coastal mesas, inland valley). 

Descriptions of each unit and the 

reasons for designating lands within 

each unit as critical habitat are 

presented below. We designated critical 

habitat on the specific areas within the 

geographical area occupied by the 

species at the time of listing on which 

are found those physical or biological 

features essential to the conservation of 

the species and which may require 

special management considerations. We 

are also designating critical habitat on 

specific areas outside the geographic 

area occupied by N. fossalis at the time 

of listing upon a determination by the 

Secretary of the Interior that such areas 

are essential for the conservation of N. 

fossalis. In addition, all of the areas 

designated as critical habitat contain 

one or more primary constituent 

elements (e.g., soil, hydrology). 

Unit 1 (Subunits 1A, 1B): Transverse 

Range Critical Habitat Unit, Los Angeles 

County, California (326 ac (132 ha)). 

The occurrences of Navarretia fossalis 

in northern Los Angeles County 

represent isolated occurrences at the 

northern most extent of the range of the 

species. Conservation biologists have 

demonstrated that populations at the 

edge of a species’ distribution can be 

important sources of genetic variation 

and represent the best opportunity for 

colonization or re-colonization (Gilpin 

and Soule ́ 1986; Lande 1999). Although 

the populations of N. fossalis in Los 

Angeles County are far removed from 

other known locations, these pools are 

possible sources of unique genetic 

information that will aid this highly 

restricted species in its ability to adapt 

to future changes in the environment 

(e.g. stochastic events such as droughts 

or temperature shifts). Such 

characteristics may not be present in 

other parts of the species’ range (Lesica 

and Allendorf 1995). For these reasons 

the unit is essential to the conservation 

of the species. 

The Transverse Range Critical Habitat 

Unit occurs within the Transverse 

Management Area as identified in the 

Recovery Plan, and includes vernal 

pools occupied with Navarretia fossalis 

at Cruzan Mesa and Plum Canyon in Los 

Angeles County (Service 1998). Vernal 

pools at both sites are currently on lands 

under private ownership. These pools 

are the last remaining vernal pools in 

Los Angeles County. The area 

designated as critical habitat in Unit 1 

contains the primary constituent 

elements: vernal pools within the 

appropriate elevations and topography 

(PCE #1), soils that are impermeable and 

pond water (PCE #2), and hydrology to 

support Navarretia fossalis. The City of 

Los Angeles has identified this area as 

Significant Ecological Area and has 

recommended its inclusion in the 

updated version of the Los Angeles 

General Plan, a plan which guides 

development with zoning regulations. 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60671 

However, these pools have not yet been 

included in the Los Angeles General 

Plan. In addition, the Service is in 

preliminary discussions with the 

landowner to establish a conservation 

bank for Cruzan Mesa. We understand 

that the landowner recognizes the 

biological value of the vernal pool and 

surrounding lands and recognizes that a 

conservation bank would benefit the 

species associated with the vernal pools 

(i.e. Navarretia fossalis) and provide a 

mechanism to fund habitat restoration 

(Service pers. comm. 2005). We also 

received comments from the Los 

Angeles County Department of Regional 

Planning that indicated that the 

landowner is requesting credit for 

transferring housing density to another 

portion of their property to conserve the 

vernal pool habitats (Los Angeles 

County 2005). Lands within this critical 

habitat unit may require special 

management to address threats to the 

vernal pools (PCE #1) and the hydrology 

(PCE #3) from current and future uses 

around the vernal pools that include 

habitat alteration resulting from movie 

production and potential residential and 

commercial development. 

Unit 2: San Diego North Coastal Mesas 

Critical Habitat Unit, San Diego County, 

California (22 ac (9 ha)). 

The San Diego North Coastal Mesas 

Critical Habitat Unit occurs within the 

boundaries of the City of Carlsbad. One 

occupied vernal pool complex is located 

along the railroad tracks at the 

Poinsettia Lane train station. This 

complex is associated with a remnant of 

coastal terrace habitat and is one of the 

only vernal pools in San Diego County 

with alkaline soil properties. This 

vernal pool complex is one of the last 

remaining coastal occurrences of 

Navarretia fossalis outside the 

boundaries of MCB Camp Pendleton. 

This population of Navarretia fossalis 

occurs in vernal pools that are within 

the boundaries of the City of Carlsbad 

HMP and on lands that are owned by 

the North County Transit District (and 

not a signatory agency to the Carlsbad 

HMP). We designate 22 acres (9 ha) of 

critical habitat on lands only within the 

North County Transit District. The area 

being designated as critical habitat 

contains the primary constituent 

elements described above relating to the 

pooling basins, watersheds, underlying 

soil substrate, and topography (PCE 1–

3). Lands within this critical habitat unit 

may require a long-term management 

plan to manage herbivores, control 

exotic weeds, and assess changes in 

water quality and quantity associated 

with the nearby urban areas. 

We excluded 3.5 acres (1.4 ha) of 

vernal pools and buffer as critical 

habitat that are within the City of 

Carlsbad HMP under section 4(b)(2) of 

the Act. The avoidance, minimization, 

and/or mitigation measures and the 

adaptive management of lands within 

the Preserve that are included in the 

MHCP Subregional Plan and the City of 

Carlsbad Subarea Plan will reduce any 

impacts that may occur to Navarretia 

fossalis. Moreover, the 3.5 acres (1.4 ha) 

are within the open space lot 227 of the 

Waters End housing project. John Laing 

Homes, developer of the Waters End 

housing project, agreed to (1) provide 

maintenance and management for three 

years, (2) the Waters Edge Homeowners 

Association will assume responsibility 

for maintenance of the area after the 

three year period until the City of 

Carlsbad selects a management entity, 

(3) provide an irrevocable offer of 

dedication for a conservation easement 

to the City of Carlsbad, and (4) provide 

$100,000 for a maintenance endowment 

for open space lot 227 (John Laing 

Homes 2004). 

The remaining 117.5 ac (48 ha) of 

land identified as containing the 

physical and biological features in the 

proposed rule have been developed and 

no longer contribute to the hydrology of 

the vernal pools that support Navarretia 

fossalis. These lands were not known to 

be occupied by N. fossalis at the time of 

proposed rule. These 117.5 ac (48 ha) do 

not contain the physical and biological 

features essential to the conservation of 

N. fossalis and are not designated as 

critical habitat. 

Unit 3: San Diego Central Coastal Mesas 

Critical Habitat Unit, San Diego County, 

California 

We proposed critical habitat for 

Navarretia fossalis in Unit 3 (72 ac) (29 

ha). We have re-examined the records 

and available information and now 

conclude that the vernal pools and 

watersheds within Unit 3 do not 

currently support N. fossalis. We 

removed approximate 72 ac (29 ha) 

because the known occurrences have 

been lost to and degraded by residential 

development and the physical and 

biological features essential to the 

conservation of N. fossalis are no longer 

present. Thus, no critical habitat for N. 

fossalis is designated within Unit 3. 

Unit 4 (Subunits 4C, 4D & 4E): San 

Diego Inland Valleys Critical Habitat 

Unit, San Diego County, California (160 

ac (65 ha)). 

The San Diego Inland Valleys Critical 

Habitat Unit occurs within the San 

Diego Inland Valleys Management Area 

as identified in the Recovery Plan 

(Service 1998). The three subunits 

designated as critical habitat for 

Navarretia fossalis contain occupied 

vernal pool complexes within the City 

of San Marcos and the community of 

Ramona. These vernal pool complexes 

are isolated from maritime influence 

and are representative of vernal pools 

associated with alluvial or volcanic type 

soils (Keeler-Wolf et al. 1998; Service 

1998). These vernal pools in San Marcos 

and Ramona are essential for the 

conservation of N. fossalis because of 

their role in stabilizing populations and 

preventing habitat loss. Additionally, 

this unit includes vernal pools within 

the easternmost edge of the geographical 

distribution of the species. Therefore, 

conservation of pools at this location 

will help maintain the diversity of 

vernal pool habitats and their unique 

geological substrates, and retain the 

genetic diversity of these geographically 

distinct populations. The areas being 

designated as critical habitat in Unit 4 

contain the primary constituent 

elements described above relating to the 

pooling basins, watersheds, underling 

soil substrate and topography (PCE 

numbers 1–3). Special management may 

be required for all sub-units of this 

critical habitat unit. The vernal pools in 

San Marcos are on properties that are 

surrounded by urbanization. 

Management of these vernal pools is 

needed to prevent damage from 

uncontrolled access to the sites. 

We designate 73 ac (30 ha) of critical 

habitat within the City of San Marcos on 

Subunits 4C1 (34 ac) (14 ha) and 4C2 

(32 ac) (13 ha) and Subunit 4D (7 ac) (3 

ha). To avoid including developed areas 

(i.e., those areas do not include the 

physical and biological features 

essential to the conservation of the 

species), we divided Subunit 4C by 

Linda Vista Drive (Subunit 4C1 is north 

of Linda Vista Drive and Subunit 4C2 is 

south of Linda Vista Drive) in the final 

rule. The vernal pools in San Marcos are 

associated with native grassland and a 

unique association of multiple species 

of Brodiaea (San Diego Biodiversity 

Project 1991). These vernal pools were 

occupied Navarretia fossalis at the time 

of listing based on available records, but 

these populations were not specifically 

identified in the final listing rule. 

Subunit 4D was conserved as part of the 

Bent Avenue Project (Service 2000). The 

southeastern boundary of Subunit 4D 

has been revised in the final rule to not 

include areas that have been developed 

(i.e., those areas do not include the 

physical and biological features 

essential to the conservation of the 

species). 

We designate 87 ac (35 ha) of critical 

habitat within the Ramona grasslands in 

60672 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

Santa Maria Valley (Subunit 4E). The 

designated critical habitat is on County 

of San Diego and private lands that are 

south and southeast of Ramona Airport. 

These vernal pools were occupied 

Navarretia fossalis at the time of listing 

and are part of a complex of vernal 

pools that support the San Diego fairy 

shrimp and other rare vernal pool 

species. Surveys conducted in 2004 also 

document the presence of N. fossalis 

within the Ramona grasslands. A 

portion of these lands are protected as 

a result of improvements made to the 

Ramona Airport (Service 2001). The 

Ramona grasslands, including the 

designated critical habitat, is identified 

for acquisition and management under 

the California Department of Fish and 

Game’s Ramona Grasslands Wildlife 

Area Conceptual Area Protection Plan 

(CDFG 2002) and the County of San 

Diego and The Nature Conservancy 

under the Framework Management and 

Monitoring Plan, Ramona Grasslands 

Open Space Preserve (The Nature 

Conservancy 2004). 

We proposed critical habitat for 

Navarretia fossalis within vernal pools 

in downtown Ramona (531 ac) (215 ha) 

and in other areas of the Ramona 

Grasslands (2,335 ac) (945 ha) (the 

remaining portions of Subunit 4E). We 

have re-examined the records and 

available information and now conclude 

that the vernal pool areas within 

downtown Ramona and in the other 

areas of the Ramona Grassland do not 

currently support N. fossalis. The three 

occurrences of N. fossalis known at the 

time of listing (1983–1998) in 

downtown Ramona have been lost to 

urban development. No other current 

occurrence records of N. fossalis within 

downtown Ramona are available. While 

this species may persist in the seed 

bank, we are unable to confirm the 

presence of this species in downtown 

Ramona and in other areas of the 

Ramona Grasslands. Thus, no critical 

habitat for N. fossalis is designated 

within downtown Ramona and in other 

areas of the Ramona Grasslands because 

(1) none of the historical occurrences 

are believed to be extant, (2) there is no 

current information that N. fossalis 

occurs within downtown Ramona or in 

the other areas of the Ramona 

Grasslands, and (3) there is no 

information that these vernal pool areas 

contain the physical and biological 

features essential to the conservation of 

N. fossalis. We encourage landowners, 

planning boards, school districts, and 

local jurisdictions to understand that 

not designating critical habitat for N. 

fossalis within downtown Ramona and 

in other areas of the Ramona Grasslands 

does not mean that these vernal pools 

are not important for conservation. We 

recognize that the County of San Diego 

is preparing a subarea plan for northern 

San Diego County under the San Diego 

MSCP that will address the conservation 

of vernal pools in downtown Ramona 

and in other areas of the Ramona 

Grasslands. There are several vernal 

pool sites within downtown Ramona 

that would be valuable for conservation 

and included in a preserve system. 

We proposed critical habitat for 

Navarretia fossalis within vernal pools 

in Subunit 4A (10 ac) (4 ha) and Subunit 

4B (42 ac) (17 ha). We have re-examined 

the records and available information 

and now conclude that the vernal pool 

areas within Subunit 4A and Subunit 4B 

do not currently support N. fossalis. 

Thus, no critical habitat for N. fossalis 

is designated within Subunit 4A and 

Subunit 4B because (1) there is no 

current information that N. fossalis 

occurs within Subunit 4A and Subunit 

4B and (2) there is no information that 

these vernal pool areas contain the 

physical and biological features 

essential to the conservation of N. 

fossalis. 

Unit 5 (Subunits 5A, 5B & 5C): San 

Diego Southern Coastal Mesas Critical 

Habitat Unit, San Diego County, 

California (181 ac (73 ha)). 

The San Diego Southern Coastal 

Mesas Critical Habitat Unit occurs 

within the Southern Coastal Mesas 

Management Area as identified in the 

Recovery Plan (Service 1998). The 

geographic location contains several 

vernal pools and other physical features 

essential to the conservation of 

Navarretia fossalis. The majority of the 

land in this unit provides the essential 

watershed primary constituent element 

that contributes to the pooling basins 

that support N. fossalis. The areas being 

proposed as critical habitat in Unit 5 

contain the primary constituent 

elements described above relating to the 

pooling basins, watersheds, underling 

soil substrate and topography (PCE 

numbers 1–3). 

Subunit 5A is located to the south of 

the Sweetwater Reservoir on lands 

owned by the Sweetwater Authority (47 

ac) (19 ha) and the San Diego Wildlife 

Refuge (42 ac) (17 ha). The Service is 

currently in the process of developing a 

restoration plan for the Refuge lands. 

Sweetwater Authority, along with Padre 

Dam Municipal Water District, Santa Fe 

Irrigation District, and Helix Water 

District, are preparing an HCP/Natural 

Communities Conservation Plan for 

their lands. In the draft plan, Navarretia 

fossalis is identified as a covered 

species and found on Sweetwater 

Authority lands. Vernal pools in this 

subunit of critical habitat have been 

negatively impacted by dense stands of 

Lolium multiflorum (annual or italian 

ryegrass). Units 5B and 5C are located 

on the eastern portion of Otay Mesa. 

Vernal pool complexes on the eastern 

half of Otay Mesa have been less 

impacted than the vernal pool 

complexes on the western half of Otay 

Mesa. The western half of Otay Mesa 

has much more light industrial and 

residential development that the eastern 

half of the Mesa and more impacts from 

off-road vehicles. The vernal pool 

complexes in these units may require 

special management such as invasive 

species control regulation of off-road 

vehicles. 

In the proposed rule, we excluded 

critical habitat from a portion of Subunit 

5A under section 4(b)(2) of the Act 

because we believed that the lands were 

within the San Diego MSCP. We have 

reviewed the available information and 

now recognize that these excluded lands 

were not within the San Diego MSCP. 

Instead, these excluded lands are owned 

by the Sweetwater Authority and the 

water district is not a signatory agency 

to the San Diego MSCP. We are not 

designating these lands as critical 

habitat because we did not notify the 

Sweetwater Authority of this oversight 

and to include these lands would be a 

violation of the Administrative 

Procedures Act. 

We proposed critical habitat for 

Navarretia fossalis in Subunit 5D (150 

ac) (61 ha). We have re-examined the 

records and available information and 

now conclude that the vernal pools and 

watersheds within Subunit 5D do not 

currently support N. fossalis. These 

lands were not known to be occupied by 

N. fossalis at the time of proposed rule. 

Thus, no critical habitat for N. fossalis 

is designated within Subunit 5D 

because (1) There is no current or 

historical information that N. fossalis 

occurs within Subunit 5D; (2) there is 

no information that these vernal pool 

areas contain the physical and 

biological features essential to the 

conservation of N. fossalis; (3) a portion 

of land identified as containing the 

physical and biological features 

essential to the conservation of N. 

fossalis in the proposed rule has been 

developed for the Border Infrastructure 

System and no longer contribute to the 

hydrology of the vernal pools; and (4) 

the vernal pool restoration work being 

conducted at Arnie’s Point is for the San 

Diego fairy shrimp (Branchinecta 

sandiegonensis) and Riverside fairy 

shrimp (Streptocephalus woottoni) and 

not to offset any losses to N. fossalis. 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60673 

In the proposed rule, we identified 

three vernal pool areas within the City 

of Chula Vista Multiple Species 

Conservation Program Subarea Plan 

(Chula Vista Subarea Plan) that we 

believed contained the physical and 

biological features essential to the 

conservation of Navarretia fossalis. We 

have re-examined the records and 

available information and now conclude 

that these three vernal pool areas do not 

support N. fossalis. Two of these areas 

were based on observations made in 

1979. One of these vernal pool areas 

(identified as M–2) was destroyed by 

agriculture and the second area 

(identified as K–2) was comprised of a 

single disturbed vernal pool with intact 

mima mounds (RECON 1989). The third 

vernal pool area (identified as K–1) did 

not support N. fossalis (RECON 1989). 

Biological analyses for the Otay Ranch 

development and the Chula Vista 

Subarea Plan have not reported the 

presence of this species (RECON 1991, 

City of Chula Vista 2002, and Service 

2003). We stated that this species is not 

known to occur within the Chula Vista 

subarea (the area within the action area 

where impacts are expected to occur) at 

the time of our analysis for the 

biological opinion for the issuance of 

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

plan (Service 2003). Our biological 

opinion concluded that the issuance of 

the section 10(a)(1)(B) permit is not 

likely to jeopardize the continued 

existence of N. fossalis. Thus, no critical 

habitat for N. fossalis is designated 

within the Chula Vista subarea because 

(1) none of the historical occurrences 

are believed to be extant, (2) there is no 

current information that N. fossalis 

occurs within the Chula Vista subarea, 

and (3) there is no information that 

these vernal pool areas contain the 

physical and biological features 

essential to the conservation of N. 

fossalis. Moreover, the Chula Vista 

Subarea Plan will require pre-project 

surveys to determine if significant 

biological resources occur within a 

given project site. If this species occurs 

within the Chula Vista subarea, direct 

impacts may occur to this species, but 

would be limited because of the 

avoidance, minimization, and/or 

mitigation measures and by the system 

of large, interconnected blocks of habitat 

that will be established and preserved in 

perpetuity that are included in this 

subarea plan. 

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)). Until such time 

as a proposed designation is finalized, 

any reasonable and prudent alternatives 

or reasonable or prudent measures 

included 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 its 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 

Navarretia fossalis or its critical habitat 

will require section 7 consultation. 

Activities on private or State lands 

requiring a permit from a Federal 

agency, such as a permit from the Army 

Corps under section 404 of the Clean 

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

from the Service, or some other Federal 

action, including funding (e.g., Federal 

Highway Administration 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 

60674 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of Navarretia fossalis. Federal activities 

that, when carried out, may adversely 

affect critical habitat for N. fossalis 

include, but are not limited to: 

(1) Actions that would permanently 

alter the function of the underlying 

claypan or hardpan soil layer to hold 

and retain water. This would affect the 

duration and extent of inundation, 

water temperature and chemistry, and 

other vernal pool features beyond the 

tolerances of Navarretia fossalis. 

Damage or alternation of the claypan or 

hardpan soil layer would eliminate the 

function of this PCE for providing space 

for individual and population growth 

and for normal behavior; water and 

physiological requirements; and sites for 

breeding, reproduction and rearing of 

offspring. Actions that could 

permanently alter the function of the 

underlying claypan or hardpan soil 

layer include, but are not limited to, 

grading or earthmoving work that 

disrupts or rips into the claypan or 

hardpan soil layer; or and channelizing, 

mining, dredging, or drilling into the 

claypan or hardpan soil layer; and, 

(2) Actions that would permanently 

reduce the depth of a vernal pool, and 

the ability of a vernal pool to pond with 

water, the duration and extent of 

inundation, water temperature and 

chemistry, and other vernal pool 

features beyond the tolerances of the 

Navarretia fossalis. Reducing the depth 

of the vernal pool would eliminate the 

function of this PCE for providing space 

for normal behavior and for individual 

and population growth, water and 

physiological requirements, sites for 

breeding, reproduction, and reduce the 

time available for growth and 

reproduction as it would accelerate the 

pool’s drying phase. Actions that could 

permanently reduce the depth of the 

vernal pool include, but are not limited 

to, discharge of dredged or fill material 

into vernal pools and erosion of 

sediments from fill material, 

disturbance of soil profile by grading, 

ditch digging in and around vernal 

pools, earthmoving work, OHV use, 

grazing, vegetation removal, or 

construction of roads, culverts, berms or 

any other impediment to natural subsurface or surface hydrological flow 

within the watershed for the vernal 

pools. 

We designated critical habitat on the 

specific areas within the geographical 

area occupied by the species at the time 

of listing on which are found those 

physical or biological features essential 

to the conservation of the species and 

which may require special management 

considerations. Specific areas within the 

geographic area occupied by the species 

at the time of listing include Unit 1 in 

northwestern Los Angeles County, Unit 

2 in coastal San Diego County, Subunit 

4E in Ramona, and Subunits 5B and 5C 

on Otay Mesa. We are also designating 

critical habitat on specific areas outside 

the geographic area occupied by N. 

fossalis at the time of listing upon a 

determination by the Secretary of the 

Interior that such areas are essential for 

the conservation of N. fossalis. We 

believe those subunits are essential for 

the conservation of N. fossalis because 

these populations are needed for 

recovery, to maintain the geographical 

distribution of the species, and unique 

soils. Specific areas outside the 

geographic area occupied by the species 

at the time of listing include Subunits 

4C and 4D in the City of San Marcos and 

Subunit 5A in San Diego were not 

specifically mentioned in the final 

listing rule for N. fossalis. Federal 

agencies have previously consulted with 

the Service for projects that may affect 

N. fossalis in the City of San Marcos. 

Application of Section 4(a)(3) and 

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

Act 

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

Act—Approved and Completed INRMPs 

The Sikes Act Improvements Act of 

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

requires each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete an INRMP 

by November 17, 2001. An INRMP 

combines implementation of the 

military mission of the installation with 

stewardship of its natural resources. 

Each INRMP includes an assessment of 

the ecological needs on the installation, 

including the need to provide for the 

conservation of listed species; a 

statement of goals and priorities; a 

detailed description of management 

actions to be implemented to provide 

for these ecological needs; and a 

monitoring and adaptive management 

plan. We consult with the Department 

of Defense on the development and 

implementation of INRMPs for 

installations with federally listed 

species. 

Section 318 of the National Defense 

Authorization Act for Fiscal Year 2004 

(Pub. L. 108–136) amended the Act to 

address the relationship of INRMPs to 

critical habitat by adding a new section 

4(a)(3)(B). This provision prohibits us 

from designating as critical habitat any 

lands or other geographical areas owned 

or controlled by the DOD, or designated 

for its use, that are subject to an INRMP 

prepared under section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary of 

the Interior determines in writing that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. 

Marine Corps Air Station Miramar 

(MCAS Miramar) 

MCAS Miramar completed a final 

INRMP in May 2000 that provides a 

benefit to Navarretia fossalis. MCAS 

Miramar has identified management 

areas with different resource 

conservation requirements and 

management concerns, and identifies 

them with five separate levels that 

correspond to their sensitivity. The 

majority of vernal pools and habitats 

that support vernal pool species, 

including N. fossalis, are located in 

‘‘Level I Management Areas (MAs).’’

Preventing damage to vernal pool 

resources is the highest conservation 

priority in MAs with the ‘‘Level I’’

designation. The conservation of vernal 

pools in this MA is achieved through 

education of base personnel, proactive 

measures to avoid accidental impacts, 

and maintenance of an updated 

inventory of vernal pool basins and the 

associated vernal pool watersheds. 

Since the completion of MCAS 

Miramar’s INRMP, we have received 

reports on Miramar’s vernal pool 

monitoring and restoration program and 

correspondence detailing the 

installation’s expenditures on the 

objectives outlined in its INRMP. MCAS 

Miramar continues to monitor and 

manage its vernal pool resources, 

including a study on the effects of fire 

on vernal pool resources, vernal pool 

mapping and species surveys, and a 

study of Agrostis avenaceae (Pacific 

bentgrass), an invasive exotic grass 

found in some vernal pools on the base. 

We believe this INRMP benefits this 

species. MCAS Miramar contains the 

largest continuous block of vernal pools 

that remain in San Diego County 

(Bauder and McMillan, 1998). The 

vernal pool complexes occupied by 

Navarretia fossalis are mapped and 

regularly monitored for the presence of 

this species as well as other vernal pool 

species. The pools on MCAS Miramar 

which support N. fossalis are 

considered essential for the 

conservation of this species. The MCAS 

Miramar INRMP includes management 

strategies to conserve N. fossalis, a 

record of funding to implement those 

management strategies, and a 

monitoring program to ensure the 

effectiveness of the management 

strategies. Therefore, we find that the 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60675 

INRMP for MCAS Miramar provides a 

benefit for N. fossalis and all lands on 

MCAS Miramar are exempt from critical 

habitat pursuant to section 4(a)(3) of the 

Act. 

Marine Corps Base Camp Pendleton 

(MCB Camp Pendleton) 

MCB Camp Pendleton completed 

their INRMP in November 2001, which 

includes the following conservation 

measures for vernal pool species 

including Navarretia fossalis: (1) 

Surveys and monitoring, studies, impact 

avoidance and minimization, and 

habitat restoration and enhancement; (2) 

species survey information stored in 

Camp Pendleton’s GIS database and 

recorded in a resource atlas which is 

published and updated on a semiannual basis; (3) use of the resource 

atlas to plan operations and projects to 

avoid impacts to N. fossalis and to 

trigger section 7 consultations if an 

action may affect the species. These 

measures are established, ongoing 

aspects of existing programs and/or Base 

directives (e.g., Range and Training 

Regulations) or measures that will be 

implemented when the current section 

7 consultation for upland species 

(Uplands Consultation), including N. 

fossalis, is completed. 

Based on the past funding history by 

Camp Pendleton for listed species and 

their Sikes Act program (including the 

management of Navarretia fossalis), we 

believe there is a high degree of 

certainty that Camp Pendleton: (1) Will 

continue to have the necessary staffing, 

funding levels, funding sources, and 

other resources to implement their 

INRMP; (2) has the legal authority, legal 

procedural requirements, 

authorizations, and regulatory 

mechanisms to implement their INRMP 

and other conservation efforts; and (3) 

will implement the INRMP in 

coordination with CDFG and the 

Service. We also believe that there is a 

high degree of certainty that the 

conservation efforts of their INRMP will 

be effective. Service biologists work 

closely with Camp Pendleton on a 

variety of endangered and threatened 

species issues, including N. fossalis. 

The management programs and Base 

directives to avoid and minimize 

impacts to the species’ are consistent 

with current and ongoing section 7 

consultations with Camp Pendleton. 

Through our cooperative relationship 

with Camp Pendleton and the section 7 

consultation process, we can ensure that 

conservation efforts identified in the 

INRMP for N. fossalis will: (1) Address 

the nature and extent of threats; (2) 

provide for monitoring and reporting 

progress on implementation; and (3) 

incorporate the principles of adaptive 

management. 

We are also in the process of 

completing a section 7 consultation for 

upland species on Camp Pendleton. 

Vernal pools and associated species, 

including Navarretia fossalis, are 

addressed in the ‘‘Uplands 

Consultation.’’ When this consultation 

is completed, Camp Pendleton will 

incorporate the conservation measures 

from the biological opinion into their 

INRMP. At that time, Camp Pendleton’s 

INRMP will further clarify benefits to N. 

fossalis. Therefore, we find that the 

INRMP for Camp Pendleton provides a 

benefit for N. fossalis and all lands on 

Camp Pendleton are exempt from 

critical habitat pursuant to section 

4(a)(3) of the Act. 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—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. 

We are excluding critical habitat from 

approximately 21,384 ac (8,654 ha) of 

non-Federal lands within the (1) San 

Diego Multiple Species Conservation 

Program (MSCP): City of San Diego 

subarea plan and County of San Diego 

subarea plan; (2) Western Riverside 

MSHCP; and (3) Northwestern San 

Diego MHCP: City of Carlsbad Subarea 

Plan/Habitat Management Plan (HMP) 

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

Navarretia fossalis is a covered species 

under all three of these plans. We 

completed our section 7 consultations 

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

permit for the City of San Diego subarea 

plan on June 6, 1997; the County of San 

Diego subarea plan on March 12, 1988; 

the Western Riverside County MSHCP 

on June 22, 2004; and the City of 

Carlsbad HMP on November 9, 2004. 

The conference opinions for Navarretia 

fossalis for the City of San Diego subarea 

plan and County of San Diego subarea 

plan were both confirmed as biological 

opinions on December 21, 2000 (Service 

2000). We confirmed that the 

implementation of the MSCP has not 

affected the continued existence of N. 

fossalis. These approved and legally 

operative HCPs provide special 

management and protection for the 

physical and biological features 

essential for the conservation N. fossalis 

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 these HCPs 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 N. fossalis. 

Below we first provide general 

background information on each HCP, 

followed by an analysis pursuant to 

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

of including lands in all three HCPs 

within the critical habitat designation, 

an analysis of the benefits of excluding 

these 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 these HCP lands will not 

result in extinction of the Navarretia 

fossalis. 

San Diego Multiple Species 

Conservation Program (MSCP): City of 

San Diego Subarea Plan and County of 

San Diego Subarea Plan 

We excluded 3,554 ac (8,654 ha) of 

non-Federal lands within portions of 

Units 3 and 5 as critical habitat that are 

in the San Diego MSCP under section 

4(b)(2) of the Act. In southwestern San 

Diego County, the MSCP effort 

encompasses more than 236,000 ha 

(582,000 ac) and involves the 

participation of the County of San 

Diego, City of San Diego, and other 

cities and jurisdictions. This regional 

HCP is also a regional subarea plan 

under the NCCP program and was 

developed in cooperation with 

California Department of Fish and 

Game. The MSCP provides for the 

establishment of approximately 69,573 

ha (171,000 ac) of preserve areas to 

provide conservation benefits for 85 

federally listed and sensitive species 

over the life of the permit (50 years), 

including Navarretia fossalis. The San 

Diego MSCP and approved subarea 

60676 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

plans provide measures to conserve N. 

fossalis populations in southwestern 

San Diego County. Surveys for N. 

fossalis are required in suitable habitat 

(i.e., vernal pools, ephemeral wetlands, 

and seasonally ponded areas). These 

lands are to be permanently maintained 

and managed for the benefit of N. 

fossalis and other covered species. 

Within the City of San Diego subarea 

plan, approximately 63 percent of the 

one major population within the MSCP 

and five of the thirteen mapped points 

will be included in the Multiple Habitat 

Preserve Alternative (MHPA) (Service 

1997). Within the MHPA, the City of 

San Diego will avoid impacts to this 

species to the maximum extent 

practicable. Outside the boundaries of 

the MHPA, the City of San Diego will 

require additional protection measures 

such as management, enhancement, 

restoration, and/or transplantation into 

the preserves (Service 1997). In our 

biological opinion for the issuance of a 

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

San Diego’s MSCP subarea plan, the 

Service concluded that the proposed 

permit issuance would not appreciably 

reduce the likelihood of the survival 

and recovery of Navarretia fossalis 

because (1) The plan would provide for 

avoidance of impacts to wetlands to the 

maximum extent practicable both inside 

and outside the MHPA; (2) State, 

Federal, and local regulations will 

provide habitat protection resulting in 

no net loss of wetland acreage, value, 

and function for this species; (3) impact 

avoidance and additional measures will 

be provided for Navarretia fossalis as 

required under the MSCP Plan for 

narrow endemics; and (4) preserve 

management will include measures to 

protect against detrimental edge effects, 

maintain surrounding habitat for 

pollinators, and maintain watershed 

areas (Service 1997). The City of San 

Diego recently completed an inventory 

of vernal pools that identified ten vernal 

pool complexes that contain Navarretia 

fossalis (City of San Diego 2004). During 

the 2004–2005 field season, another two 

locations were found to contain N. 

fossalis. Of these twelve known 

locations that support Navarretia 

fossalis, ten are currently conserved or 

will be conserved in the future. Only 

two vernal pool complexes that contain 

N. fossalis, the vernal pool complexes 

known as J13 and J14, are not currently 

conserved. Thus, the City of San Diego 

subarea plan provides significant 

conservation and management measures 

for Navarretia fossalis. 

Within the County of San Diego 

subarea plan, Navarretia fossalis 

qualifies as a Group A species as 

defined in the Biological Mitigation 

Ordinance (BMO) (i.e. plants that are 

rare, threatened, or endangered in 

California or elsewhere) (Service 1998). 

The BMO would require 80 to 100 

percent preservation of any newly 

discovered populations on Category 3 

lands (i.e. lands for which preserve and 

development boundaries have not been 

delineated, but which will be subject to 

the terms of the County of San Diego’s 

BMO in order to receive take 

authorization) (Service 1998). Area 

specific management directives must 

include measures to protect against 

detrimental edge effects and conserve 

and maintain surrounding habitat for 

pollinators and as part of the 

hydrological system for vernal pools 

(Service 1998). In our biological opinion 

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

permit for the County of San Diego’s 

MSCP subarea plan, the Service 

concluded that the proposed permit 

issuance would not appreciably reduce 

the likelihood of the survival and 

recovery of Navarretia fossalis because 

(1) this plant is restricted to wetland 

habitats and the plan will provide for 

avoidance of impacts to wetlands to the 

maximum extent practicable; (2) State, 

Federal, and local regulations will 

provide habitat protection resulting in 

no net loss of wetland function and 

value for this species; (3) impact 

avoidance and additional measures will 

be provided to this species as required 

under the County Subarea Plan and the 

BMO for narrow endemic and Group A 

species on Category 3 lands; and (4) 

preserve management will include 

measures to protect against detrimental 

edge effects, maintain surrounding 

habitat for pollinators, and maintain 

watershed areas (Service 1998). 

Northwestern San Diego Multiple 

Habitat Conservation Program (MHCP): 

City of Carlsbad Subarea Plan/Habitat 

Management Plan 

We excluded 3.5 ac (1.4 ha) of nonFederal lands within the City of 

Carlsbad Subarea Plan/Habitat 

Management Plan (HMP) under section 

4(b)(2) of the Act. The City of Carlsbad 

HMP is a subarea plan under the 

Multiple Habitat Conservation Program 

(MHCP) in northwestern San Diego 

County. The MHCP includes an 

approximately 112,000 ac (45,324 ha) 

study area within the cities of Carlsbad, 

Encinitas, Escondido, San Marcos, 

Oceanside, Vista, and Solana Beach. 

The City of Carlsbad is the first city of 

these seven cities to complete a subarea 

plan and therefore the only city with 

conditional coverage for Navarretia 

fossalis. 

This population of Navarretia fossalis 

occurs in vernal pools that are within 

the boundaries of the City of Carlsbad 

HMP and on lands that are owned by 

the North County Transit District (and 

not a signatory agency to the Carlsbad 

HMP). Only those 3.5 acres (1.4 ha) of 

vernal pools and buffer that are within 

the City of Carlsbad HMP are excluded 

as critical habitat. Moreover, the 3.5 

acres (1.4 ha) are within the open space 

lot 227 of the Waters End housing 

project. John Laing Homes, developer of 

the Waters End housing project, agreed 

to (1) provide maintenance and 

management for three years, (2) the 

Waters Edge Homeowners Association 

will assume responsibility for 

maintenance of the area after the three 

year period until the City of Carlsbad 

selects a management entity, (3) provide 

an irrevocable offer of dedication for a 

conservation easement to the City of 

Carlsbad, and (4) provide $100,000 for 

a maintenance endowment for open 

space lot 227 (John Laing Homes 2004). 

In our biological opinion for the 

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

permit to the City of Carlsbad, we stated 

that the proposed action would not 

directly impact any currently known 

populations and is not likely to 

jeopardize the continued existence or 

recovery of Navarretia fossalis (Service 

2004). The avoidance, minimization, 

and/or mitigation measures and the 

adaptive management of lands within 

the Preserve that are included in the 

MHCP Subregional Plan and the City of 

Carlsbad Subarea Plan will reduce any 

impacts that may occur to Navarretia 

fossalis. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

We excluded 17,908 ac (7,247 ha) of 

non-Federal lands within the Western 

Riverside County MSHCP under section 

4(b)(2) of the Act. 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 northeastern portion of 

the range of Navarretia fossalis, which 

is a covered species under this plan. 

The Western Riverside 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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60677 

existence of N. fossalis in its Biological 

and Conference Opinion (Service 2004). 

The MSHCP has five species specific 

conservation objectives to conserve and 

monitor Navarretia fossalis populations: 

(1) Include a minimum of 6,900 ac of 

suitable habitat; (2) include a minimum 

of 13 known N. fossalis locations at 

Skunk Hollow, the Santa Rosa Plateau, 

the San Jacinto Wildlife Area, 

floodplains of the San Jacinto River 

from the Ramona Expressway to 

Railroad Canyon, and upper Salt Creek 

west of Hemet; (3) conduct surveys for 

the species; (4) include the floodplain of 

the San Jacinto River consistent with 

Objective 1, and maintain floodplain 

processes along the river to provide for 

the distribution of the species to shift 

over time as hydrologic conditions and 

seed bank sources change; and, (5) 

include 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, and maintain floodplain 

processes along the river to provide for 

the distribution of the species to shift 

over time as hydrologic conditions and 

seed bank sources change. 

Approximately 85 percent of the areas 

with essential features for the 

conservation of Navarretia fossalis 

(15,224 acres of the 17,908 acres of areas 

with essential features for the 

conservation of Navarretia fossalis) 

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) (14,992 ac) 

and by the approved Rancho Bella Vista 

HCP (232 acres) (see objectives 1 and 2). 

This area with essential features for the 

conservation of Navarretia fossalis is 

located at the Santa Rosa Plateau, San 

Jacinto Wildlife Area, along the 

floodplain of the San Jacinto River, and 

upper Salt Creek west of Hemet and 

includes many occurrences of 

Navarretia fossalis (see objectives 4 and 

5). 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 

Navarretia fossalis. 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 

the areas with essential features for the 

conservation of Navarretia fossalis and 

occurrences of N. fossalis are expected 

to be conserved and managed in the 

MSHCP Conservation Area. 

Approximately two percent of the 

area with essential features for the 

conservation of Navarretia fossalis (274 

ac) is within the Narrow Endemic Plant 

Species Survey Area 4 (see conservation 

objective 3). In accordance with the 

Protection of Narrow Endemic Plant 

Species section of the MSHCP, property 

owners must avoid 90 percent of those 

portions of the property within the 

MSHCP Criteria Area that provide longterm conservation value for the species 

until the permittees 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 may result 

in additional conservation for this 

species. Thus, these lands that are not 

part of the MSHCP Conservation Area 

will still receive a certain level of 

protection under the Western Riverside 

MSHCP until the conservation goals for 

Navarretia fossalis have been met. 

Approximately seven percent of the 

area with essential features for the 

conservation of Navarretia fossalis 

(1,272 ac) 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 N. fossalis. 

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 vernal pools 

occupied by Navarretia fossalis. 

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 MSHCP 

provides significant conservation 

benefits to Navarretia fossalis. These 

benefits include a MSHCP Conservation 

Area that protects a significant 

percentage of the area with essential 

features for the conservation of 

Navarretia fossalis and occurrences for 

N. fossalis and long-term management 

of the preserve areas. The MSHCP also 

provides avoidance and minimization 

measures, under the Protection of 

Narrow Endemic Plant Species and 

Guidelines Pertaining to the Urban/ 

Wildlands Interface, that provide 

benefits to the species and watershed for 

Navarretia fossalis. Finally, the MSHCP 

provides oversight to ensure effective 

implementation. 

The following analysis considers all 

three plans discussed above ((1) San 

Diego Multiple Species Conservation 

Program (MSCP): City of San Diego 

subarea plan and County of San Diego 

subarea plan; (2) Western Riverside 

MSHCP; and (3) Northwestern San 

Diego MHCP: City of Carlsbad Subarea 

Plan/Habitat Management Plan (HMP)) 

(1) Benefits of Inclusion 

Overall, we believe that there is 

minimal benefit from designating 

critical habitat for Navarretia fossalis 

within the City of San Diego Subarea 

Plan and County of San Diego Subarea 

Plan, City of Carlsbad HMP, and 

Western Riverside County MSHCP 

because, as explained above, these lands 

are already managed or will be managed 

for the conservation Navarretia fossalis. 

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 Navarretia fossalis may provide a 

60678 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

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 

Navarretia fossalis. 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 21,384 ac 

(8,654 ha) of non-Federal land as critical 

habitat may provide some additional 

Federal regulatory benefits for the 

species consistent with the conservation 

standard based on the Ninth Circuit 

Court’s decision in Gifford Pinchot. A 

benefit of inclusion would be the 

requirement of a Federal agency to 

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

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these 21,384 ac (8,654 ha) of 

non-Federal lands would likely consider 

the conservation value of these lands as 

identified in the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and Western Riverside County MSHCP 

and take the necessary steps to avoid 

jeopardy or the destruction or adverse 

modification of critical habitat. 

The areas excluded as critical habitat 

include the vernal pools that are 

occupied by Navarretia fossalis and the 

surrounding vernal pool watershed (the 

watershed is not occupied by Navarretia 

fossalis). 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 

the 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 

vernal pool watershed not occupied by 

Navarretia fossalis, 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 vernal pool watershed not 

occupied by Navarretia fossalis 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 HCPs to maintain 

watersheds for endangered species and 

vernal pools. For the watershed areas for 

Navarretia fossalis, both the City of San 

Diego Subarea Plan and County of San 

Diego Subarea Plan provide speciesspecific measures to protect against 

detrimental edge effects, maintain 

surrounding habitat for pollinators, and 

maintain watershed areas for Navarretia 

fossalis. Thus, these subarea plans 

provide a greater level of protection and 

management for the watersheds of 

vernal pools occupied by Navarretia 

fossalis than the simple avoidance of 

adverse effects to critical habitat. 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 

vernal pools occupied by Navarretia 

fossalis than the simple avoidance of 

adverse effects to critical habitat. For the 

vernal pools along the Poinsettia train 

station, the surrounding watershed is 

completely urbanized and there is 

virtually no likelihood for a future 

section 7 consultation within these 

housing areas that would provide any 

benefit to protect the watershed. Thus, 

there would be no benefit to include 

these areas as 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 areas 

occupied by Navarretia fossalis and the 

surrounding vernal pool watershed, 

consultation for activities which may 

adversely affect the species, including 

possibly significant habitat modification 

(see definition of ‘‘harm’’ at 50 CFR 

17.3), would be required, even without 

the critical habitat designation. The 

requirement to conduct such 

consultation would occur regardless of 

whether the authorization for incidental 

take occurs under either section 7 or 

section 10 of the Act. 

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 

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 Navarretia fossalis. The 

public outreach and environmental 

impact reviews required under the 

National Environmental Policy Act for 

the City of San Diego Subarea Plan and 

County of San Diego Subarea Plan, City 

of Carlsbad HMP, and Western 

Riverside County MSHCP provided 

significant opportunities for public 

education regarding the conservation of 

the areas occupied by Navarretia 

fossalis and the surrounding vernal pool 

watershed. 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 City of San Diego 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60679 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and Western Riverside County MSHCP 

to provide protection and enhancement 

of habitat for Navarretia fossalis 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 City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and Western Riverside County MSHCP 

as critical habitat would provide little 

additional educational and Federal 

regulatory benefits for the species. 

Because portions of the excluded vernal 

pool areas are occupied by the species, 

there must be consultation with the 

Service over any action which may 

affect these populations. For the 

surrounding vernal pool watershed not 

occupied by Navarretia fossalis, the City 

of San Diego Subarea Plan and County 

of San Diego Subarea Plan and Western 

Riverside County MSHCP provide 

management measures to protect the 

watershed for these vernal pools. 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 City of San 

Diego Subarea Plan and County of San 

Diego Subarea Plan, City of Carlsbad 

HMP, Western Riverside County 

MSHCP, and the critical habitat 

proposal for this taxon and its economic 

analysis, and the recognition by the City 

of San Diego, City of Carlsbad, County 

of San Diego, and County of Riverside 

of the presence of Navarretia fossalis 

and the value of their lands for the 

conservation and recovery of the 

species. Public information signs on 

vernal pools and endangered species 

have been placed at the Poinsettia train 

station. 

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 

analyses. It does not require positive 

improvements or enhancement of the 

species status. Thus, any management 

plan which considers 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 City of San 

Diego Subarea Plan and County of San 

Diego Subarea Plan, City of Carlsbad 

HMP, and Western Riverside County 

MSHCP provide for the conservation of 

Navarretia fossalis through avoidance, 

minimization, and/or mitigation of 

impacts, management of habitat, and 

maintenance of watershed. The City of 

San Diego Subarea Plan and County of 

San Diego Subarea Plan, City of 

Carlsbad HMP, and Western Riverside 

County MSHCP provide 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 in these HCPs. 

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 City of San Diego, 

City of Carlsbad, County of San Diego, 

County of Riverside, State of California, 

and the Service to implement the City 

of San Diego Subarea Plan and County 

of San Diego Subarea Plan, City of 

Carlsbad HMP, and 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, 

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 

60680 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

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 City 

of San Diego Subarea Plan and County 

of San Diego Subarea Plan, City of 

Carlsbad HMP, and Western Riverside 

County MSHCP, the Service concluded 

that issuance of section 10(a)(1)(B) 

permits for these plans are 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 

Navarretia fossalis from approximately 

21,384 ac (8,654 ha) of non-Federal 

lands within the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and 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 the Navarretia 

fossalis within the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and Western Riverside County MSHCP 

outweigh the benefits of inclusion 

(limited educational and regulatory 

benefits, which are largely otherwise 

provided for under the HCPs) of these 

lands as critical habitat. The benefits of 

inclusion of these 21,384 ac (8,654 ha) 

of non-Federal lands as critical habitat 

are lessened because of the significant 

level of conservation provided to 

Navarretia fossalis under the City of San 

Diego Subarea Plan and County of San 

Diego Subarea Plan, City of Carlsbad 

HMP, and Western Riverside County 

MSHCP (conservation of occupied and 

potential habitat, monitoring, and 

providing hydrology). In contrast, the 

benefits of exclusion of these 21,384 ac 

(8,654 ha) of non-Federal lands as 

critical habitat are increased because of 

the high level of cooperation by the City 

of San Diego, City of Carlsbad, County 

of San Diego, 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 

21,384 ac (8,654 ha) of non-Federal 

lands will not result in extinction of 

Navarretia fossalis since these lands are 

conserved or will be conserved and 

managed for the benefit of this species 

pursuant to the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and Western Riverside County MSHCP. 

These HCPs 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 vernal pools along the Poinsettia 

train station are protected pursuant to 

an agreement with Laing Homes and the 

City of Carlsbad that will provide a 

conservation easement, long-term 

maintenance, and a maintenance 

endowment fund. This level of 

protection would occur regardless of 

whether these lands are excluded as 

critical habitat. In our biological opinion 

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

permit for the City of San Diego subarea 

plan and County of San Diego subarea 

plan, the Service concluded that the 

proposed permit issuances would not 

appreciably reduce the likelihood of the 

survival and recovery of Navarretia 

fossalis because of the avoidance 

measures, management, and preserve 

system. The Service concluded that the 

Western Riverside County MSHCP 

would not jeopardize the continued 

existence of N. fossalis 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. 

Critical habitat is being designated for 

Navarretia fossalis in other areas that 

will be accorded the protection from 

adverse modification by federal actions 

using the conservation standard based 

on the Ninth Circuit Court’s decision in 

Gifford Pinchot. Additionally, the 

species within the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan, City of Carlsbad HMP, 

and 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 21,384 ac (8,654 ha) within the 

City of San Diego Subarea Plan and 

County of San Diego Subarea Plan, City 

of Carlsbad HMP, and Western 

Riverside County MSHCP will not result 

in extinction of Navarretia fossalis. 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific data 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 51742). 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 

Navarretia fossalis. 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 coextensive 

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 determined that costs 

involving conservation measures for 

Navarretia fossalis would be incurred 

for activities involving residential, 

industrial, and commercial 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60681 

development, water supply, flood 

control, transportation, agriculture, the 

development of HCPs, and the 

management of military bases, other 

Federal lands, and other public or 

conservation lands. 

Pre-designation costs include those 

Navarretia fossalis-related conservation 

activities associated with sections 4, 7, 

and 10 of the Act that have accrued 

since the time that Navarretia fossalis 

was listed as endangered (October 

1998), but prior to the final designation 

of critical habitat. The total predesignation costs are estimated at $7.9 

million. 

Post-designation effects include likely 

future costs associated with Navarretia 

fossalis conservation efforts following 

the final designation of critical habitat 

in October 2005, effectively 2006 

through 2025. If critical habitat is 

designated as proposed, total costs 

would be expected to range between 

$13.9 and $32.1 million over the next 20 

years (an annualized cost of $1.3 to $3.0 

million). Costs will be less due to 

significant reductions made to critical 

habitat in this final rule (see ‘‘Summary 

of Changes from Proposed Rule’’). 

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 for 

downloading 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 the 

draft economic analysis indicates the 

potential economic impact associated 

with a designation of all habitat with 

features essential to the conservation of 

this species would total no more than 

$12.2 million per year, we do not 

anticipate that this final rule will 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 reviewed the 

proposed rule. 

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

et seq.) and Small Business Regulatory 

Enforcement Fairness Act (5 U.S.C 801 

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 proposed 

designation of critical habitat for 

Navarretia fossalis 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, 

industrial 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. 

If this proposed critical habitat 

designation is made final, Federal 

agencies must consult with us if their 

activities may affect designated critical 

habitat. Consultations to avoid the 

destruction or adverse modification of 

critical habitat would be incorporated 

into the existing consultation process. 

Our analysis determined that costs 

involving conservation measures for 

Navarretia fossalis would be incurred 

for activities involving residential, 

industrial, and commercial 

development, water supply, flood 

control, transportation, agriculture, the 

development of HCPs, and the 

management of military bases, other 

Federal lands, and other public or 

conservation lands. 

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. 

Critical habitat designation is expected 

to result in additional costs to real estate 

development projects due to mitigation 

and other conservation costs that may 

be required. The affected land is located 

within Riverside, San Diego, and Los 

Angeles counties (although the 

proposed designation is contained in 

only Los Angeles and San Diego 

counties) and under private ownership 

by individuals who will either 

undertake a development project on 

their own or sell the land to developers 

for development. For businesses 

involved with land development, the 

relevant threshold for ‘‘small’’ is annual 

revenues of $6 million or less. The 

North American Industry Classification 

System (NAICS) code 237210 is 

comprised of establishments primarily 

engaged in servicing land (e.g., 

excavation, installing roads and 

utilities) and subdividing real property 

into lots for subsequent sale to builders. 

Land subdivision precedes actual 

construction, and typically includes 

residential properties, but may also 

include industrial and commercial 

properties. 

It is likely that development 

companies, the entities directly 

impacted by the regulation, would not 

bear the additional cost of Navarretia 

fossalis conservation (approximately 

$2.3 to $6.7 million annualized) within 

the areas with essential features for the 

conservation of Navarretia fossalis, but 

60682 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

pass these costs to the landowner 

through a lower land purchase price. 

Considering approximately 65 percent 

of the developable land within the areas 

with essential features for the 

conservation of Navarretia fossalis is 

classified as agriculture land, it is likely 

that farmers will bear some of the costs. 

The remaining 35 percent of the 

potentially developable land is privately 

owned and classified as vacant. To 

comply with the SBA recommendation 

that Federal agencies consider impacts 

to entities that may be indirectly 

affected by the proposed regulation, this 

screening level analysis presents 

information on land subdivision and 

farming businesses for Riverside, San 

Diego, and Los Angeles counties as 

these are the businesses that would 

likely be impacted directly or indirectly 

by the regulation. The majority of the 

land subdivision and farming 

businesses within the counties are 

considered small businesses. 

It is important to note that the identity 

and number of land subdivision and 

farming businesses potentially impacted 

by the critical habitat designation is not 

known. In addition, the identity and 

number of affected businesses classified 

as ‘‘small’’ is also not known. 

Nevertheless, the county-level 

information is the smallest region for 

which data relevant to this analysis 

exist (see Table A–1 in the Draft 

Economic Analysis). This clearly over 

represents the potential number of small 

businesses impacted by developmentrelated Navarretia fossalis conservation 

efforts as the privately owned 

developable land within the areas with 

essential features for the conservation of 

Navarretia fossalis (approximately 

15,084 ac (6,104.5 ha)) comprises less 

than two-tenths of one percent of the 

land area in the counties (9,908,520 ac 

(4,009,978 ha)), and only 2,969 ac 

(1,201.6 ha) of this private land is 

forecasted to be developed between 

2006 and 2025. The effects on small 

businesses in the land development 

sector would be concentrated in San 

Diego County, where more than 65 

percent of the development is expected 

to take place. Within the proposed 

critical habitat designation, the effects 

on small businesses in the land 

development sector would be 

concentrated in Ramona, where 

approximately 30 percent of the 

development in the proposed critical 

habitat designation is forecast to take 

place (Unit 4E). 

While the identity and number of 

land subdivision and farming business 

impacted by the critical habitat 

designation is not known, this analysis 

relates the economic impacts to real 

estate prices in the three counties that 

encompass the areas with essential 

features for the conservation of 

Navarretia fossalis (see Table A–2 in the 

Draft Economic Analysis). Navarretia 

fossalis-related conservation efforts are 

expected to cost between $390 and 

$11,300 per residential dwelling unit 

developed, $0.81 to $5.90 per square 

foot of commercial property developed, 

and $0.53 to $3.82 per square foot of 

industrial property developed, 

depending on residential dwelling unit 

density, lot coverage (i.e., the percent of 

the lot developed), and conservation 

and mitigation activities required. The 

median sales price for single family 

residences in the counties ranged from 

$315,000 to $460,000 in 2004,357 and 

the weighted average sales price of 

commercial and industrial properties in 

2004 ranged from $130 to $293 and $50 

to $180 per square foot, respectively. 

Thus, the economic impacts of 

Navarretia fossalis conservation to the 

development industry are equal to 0.1 

percent to 2.9 percent of the 2004 

median price of a single family 

residence, 0.4 percent to 4.5 percent of 

the 2004 weighted average sales price of 

commercial property, and 0.4 percent to 

5.4 percent of the 2004 weighted 

average sales price of industrial 

property. These costs may be borne by 

the developer or passed on to the 

landowner through a lower land 

purchase price. 

Based on these data, we have 

determined that this proposed 

designation would not result in a 

significant economic impact on a 

substantial number of small entities, in 

particular to land developers or farmers 

in Los Angeles, Riverside or San Diego 

Counties. We may also exclude areas 

from the final designation if it is 

determined that these localized areas 

have an impact to a substantial number 

of businesses and a significant 

proportion of their annual revenues. As 

such, we are certifying that this 

proposed designation of critical habitat 

would not result in a significant 

economic impact on a substantial 

number of small entities. Please refer to 

Appendix A of our draft economic 

analysis of this designation for a more 

detailed discussion of potential 

economic impacts to small business 

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 

proposed 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 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 

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 

Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60683 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) As discussed in the draft economic 

analysis of the proposed designation of 

critical habitat for Navarretia fossalis, 

there are 12 city governments are either 

adjacent to or bisect the areas with 

essential features for the conservation of 

Navarretia fossalis: Moreno Valley 

(population 142,381), Perris (population 

36,189), Lakeview (population 1,619), 

Nuevo (population 4,135), Winchester 

(population 2,155), Hemet (population 

58,812), Temecula (population 57,716), 

San Marcos (population 54,977), 

Carlsbad (population 78,247), Ramona 

(population 15,691), San Diego 

(population 1,223,400) and Chula Vista 

(population 173,556). Moreno Valley, 

Hemet, Temecula, San Marcos, 

Carlsbad, San Diego, and Chula Vista 

exceed the criteria (service population 

of 50,000 or less) for small entity.’’

However, there is no record of 

consultation between the Service and 

the five remaining ‘‘small’’

governments, the City of Perris, 

Lakeview, Nuevo, Winchester, and 

Ramona, since the Navarretia fossalis 

was listed in 1998. Indeed, it is not 

likely that these cities would be 

involved in a land development project 

involving a section 7 consultation, 

although a city may be involved in land 

use planning or permitting, and may 

play a role as an interested party in 

infrastructure projects (such as the City 

of Perris with the San Jacinto River 

Flood Control Project). Any cost 

associated with this activity/ 

involvement is anticipated to be a very 

small portion of the city’s budget. 

Consequently, we do not believe that 

the designation of critical habitat for 

Navarretia fossalis will significantly or 

uniquely affect these small 

governmental entities. As such, a Small 

Government Agency Plan is not 

required. 

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 

critical habitat designation with 

appropriate State resource agencies in 

California. The designation of critical 

habitat in areas currently occupied by 

Navarretia fossalis imposes no 

additional restrictions to those currently 

in place and, therefore, has little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments in that the areas 

essential to the conservation of the 

species are more clearly defined, and 

the primary constituent elements of the 

habitat necessary to the survival of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the 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 have 

designated critical habitat in accordance 

with the provisions of the Act. This 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 Navarretia fossalis. 

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 essential for the conservation of 

Navarretia fossalis. 

References Cited 

A complete list of all references cited 

in this proposed rule is available upon 

request from the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

Author 

The primary author of this notice 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. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.12(h) revise the entry for 

‘‘Navarretia fossalis’’ under ‘‘Flowering 

Plants’’ in the List of Endangered and 

Threatened Plants to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

60684 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Navarretia fossalis ... Spreading 

navarretia.

U.S.A. (CA), Mexico 

(Baja California).

Polemoniaceae ....... T 650 17.96(a) NA 

* * * * * * * 

■ 3. In § 17.96(a), add critical habitat for 

Navarretia fossalis in alphabetical order 

under Family Polemoniaceae to read as 

follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Polemoniaceae: Navarretia 

fossalis (spreading navarretia) 

(1) Critical habitat units for Navarretia 

fossalis are depicted for San Diego and 

Los Angeles Counties, California, on the 

maps below. 

(2) The primary constituent elements 

of critical habitat for Navarretia fossalis 

are: 

(i) Vernal pool, alkali playa, or alkali 

sink habitats, at elevations between sea 

level and 4,250 ft (1,300 m) found on 

flat to gently sloping terrain; 

(ii) Soils with a clay component or an 

impermeable surface or subsurface layer 

known to support vernal pool habitat 

including, but not limited to: CienebaPismo-Caperton in Los Angeles County; 

Domino, Traver, and Willows in 

Riverside County; and Huerhuero, 

Placentia, Olivenhain, Stockpen, and 

Redding in San Diego. Clay soils serve 

to inhibit rapid infiltration of rainwater. 

These soils also act as a buffer to 

moderate the water chemistry and rate 

of loss of water to evaporation. Clay 

soils of this nature are known to support 

vernal pool, alkali playa, and alkali sink 

habitats; and 

(iii) Associated hydrology that 

provides water to fill the pools in the 

winter and spring months. A pool with 

functional hydrology includes a 

combination of surface and 

underground water flow, native upland 

vegetation, and intact soil substrate. An 

inundated phase occurring in the winter 

and spring months followed by a dry 

phase in the summer and fall months is 

necessary to maintain these specialized 

habitats. 

(3) Critical habitat for Navarretia 

fossalis does not include existing 

features and structures, such as 

buildings, roads, aqueducts, railroads, 

airport runways and buildings, other 

paved areas, lawns, and other urban 

landscaped areas, not containing one or 

more of the primary constituent 

elements. 

(4) Exclusions from the critical habitat 

designation. Lands determined to be 

essential to the conservation of 

Navarretia fossalis and that have been 

excluded from critical habitat 

designation, are: 

(i) Exclusions under section 4(b)(2) of 

the Endangered Species Act of 1973, as 

amended. The areas excluded under 

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

following: 

(A) Areas within the City of San Diego 

Subarea Plan and County of San Diego 

Subarea Plan of the San Diego Multiple 

Species Conservation Program (MSCP); 

(B) Areas within the approved 

Carlsbad subarea plan/habitat 

management plan for the Northwestern 

San Diego Multiple Habitat 

Conservation Plan (MHCP); 

and, (C) Areas within the approved 

Western Riverside Multiple Species 

Habitat Conservation Plan (MSHCP). 

(ii) [Reserved.] 

(5) All map units are in the Universal 

Transverse Mercator (UTM) coordinate 

system, North American Datum of 1927 

(NAD27) projection. Index map of 

critical habitat units for Navarretia 

fossalis (spreading navarretia) follows: 

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60686 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

(6) Unit 1: Transverse Unit. Los 

Angeles County, California, from USGS 

1:24,000 quadrangle map Mint Canyon, 

California. 

(i) Subunit 1A: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): 368300, 3815100; 368400, 3815100; 

368400, 3815000; 368500, 3815000; 

368500, 3814900; 368600, 3814900; 

368600, 3814800; 368500, 3814800; 

368500, 3814700; 368400, 3814700; 

368400, 3814600; 368300, 3814600; 

368300, 3814500; 368200, 3814500; 

368200, 3814300; 368100, 3814300; 

368100, 3814200; 368200, 3814200; 

368200, 3813800; 368100, 3813800; 

368100, 3813600; 368000, 3813600; 

368000, 3813500; 367900, 3813500; 

367900, 3813300; 367800, 3813300; 

367800, 3813200; 367700, 3813200; 

367700, 3813300; 367600, 3813300; 

367600, 3813400; 367500, 3813400; 

367500, 3813500; 367400, 3813500; 

367400, 3813600; 367300, 3813600; 

367300, 3813800; 367100, 3813800; 

367100, 3814000; 367200, 3814000; 

367200, 3814100; 367300, 3814100; 

367300, 3814200; 367400, 3814200; 

367400, 3814300; 367500, 3814300; 

367500, 3814400; 367600, 3814400; 

367600, 3814500; 367700, 3814500; 

367700, 3814600; 367800, 3814600; 

367800, 3814700; 367900, 3814700; 

367900, 3814800; 368000, 3814800; 

368000, 3814900; 368200, 3814900; 

368200, 3815000; 368300, 3815000; 

returning to 368300, 3815100. 

(ii) Subunit 1B: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): 366100, 3813100; 366400, 3813100; 

366400, 3812800; 366500, 3812800; 

366500, 3812700; 366100, 3812700; 

returning to 366100, 3813100. 

(iii) Note: Map of final Unit 1, 

subunits A and 1B for Navarretia 

fossalis (spreading navarretia) follows: 

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60688 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

(7) Unit 2: San Diego, North Coastal 

Mesas Unit. San Diego County, 

California, from USGS 1:24,000 

quadrangle map Encinitas, California, 

(i) Land bounded by the following 

UTM NAD 27 coordinates (E, N): 

470100, 3663600; thence east to the 

North San Diego County Transit 

(NSDCT) boundary at UTM y-coordinate 

3663600; thence south following the 

NSDCT boundary to UTM x-coordinate 

470300; thence south to UTM 

coordinates 470300, 3663300; thence 

east to the NSDCT boundary at UTM ycoordinate 3663300; thence southeast 

following the NSDCT boundary lands to 

UTM x-coordinate 470400; thence south 

following UTM x-coordinate 470400 to 

the NSDCT boundary; thence west and 

south following the NSDCT boundary to 

UTM y-coordinate 3662400; thence west 

following UTM y-coordinate 3662400 to 

the NSDCT boundary; thence northwest 

following the NSDCT boundary to UTM 

x-coordinate 470400; thence north along 

UTM x-coordinate 470400 to UTM 

coordinates 470400, 3662900; thence 

west to NSDCT lands at UTM ycoordinate 3662900; thence northwest 

following the NSDCT boundary 

returning to UTM coordinates 470100, 

3663600. 

(ii) Note: Map of Unit 2 for Navarretia 

fossalis (spreading navarretia) follows: 

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60690 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

(8) Unit 4: Inland Valleys Unit. San 

Diego County, California, from USGS 

1:24,000 quadrangle maps Ramona, San 

Marcos, and San Pasqual, California. 

(i) Subunit 4C1: In San Marcos, 

California, land bounded by La Mirada 

Drive on the northeast, Las Posas Road 

on the southeast, Linda Vista Drive on 

the southwest, and Pacific Street on the 

northwest. 

(ii) Subunit 4C2: In San Marcos, 

California, land within the following 

boundary: beginning at the northeast 

corner of San Marcos Boulevard and 

Pacific Street, thence northwest along 

Pacific Steet to UTM y-coordinate 

3666290; thence to 481750, 3666160; 

481790, 3666270; thence southeast to ycoordinate 3666230 at Las Posas Road; 

thence southeast along Las Posas Road 

to y-coordinate 3665940; thence to 

481880, 3665920; thence southeast to xcoordinate 481900 at San Marcos 

Boulevard; thence southwest along San 

Marcos Boulevard returning to the 

northeast corner of San Marcos 

Boulevard and Pacific Street. 

(iii) Subunit 4D: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): 482800, 3666600; 483000, 3666600; 

483000, 3666500; 482900, 3666500; 

482900, 3666400; 482800, 3666400; 

returning to 482800, 3666600. 

(iv) Subunit 4E: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): 508100, 3655300; 508500, 3655300; 

508500, 3655100; 509200, 3655100; 

509200, 3654700; 508800, 3654700; 

508800, 3654900; 508500, 3654900; 

508500, 3655000; 508200, 3655000; 

508200, 3654900; 508100, 3654900; 

returning to 508100, 3655300. 

(v) Note: Map of Unit 4, Subunits C1, 

C2, and D, and Map of Unit 4, Subunit 

E for Navarretia fossalis (spreading 

navarretia) follow: 

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60692 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 


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Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 60693 

(9) Unit 5: San Diego, Southern 

Coastal Mesas Unit. San Diego County, 

California, from USGS 1:24,000 

quadrangle maps Imperial Beach, Jamul 

Mountains, and Otay Mesa, California. 

(i) Subunit 5A: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): 500800, 3616700; 501200, 3616700; 

501200, 3616600; 501300, 3616600; 

501300, 3616400; 501400, 3616400; 

501400, 3616200; 501200, 3616200; 

501200, 3615900; 500900, 3615900; 

500900, 3616000; 500800, 3616000; 

500800, 3616200; 501000, 3616200; 

501000, 3616400; 501100, 3616400; 

501100, 3616600; 500900, 3616600; 

500900, 3616500; 500800, 3616500; 

500800, 3616400; 500600, 3616400; 

500600, 3616300; 500400, 3616300; 

500400, 3616500; 500600, 3616500; 

500600, 3616600; 500800, 3616600; 

returning to 500800, 3616700. 

(ii) Subunit 5B: Land bounded by the 

following UTM NAD 27 coordinates (E, 

N): Map Unit 5B 499900, 3607600; 

499900, 3607700; 499600, 3607700; 

499600, 3607900; 500000, 3607900; 

500000, 3608000; 500200, 3608000; 

500200, 3607600; returning to 499900, 

3607600. 

(iii) Subunit 5C: Beginning at the 

County of San Diego Amendment Area 

(CSDAA) boundary at UTM NAD 27 ycoordinate 3606700; thence east and 

around the CSDAA; thence south to the 

CSDAA boundary at UTM y-coordinate 

3606400; thence west following UTM 

NAD 27 coordinates (E, N): 506600, 

3606400; thence north to the City of 

Chula Vista (CCV) boundary at UTM 

NAD 27 x-coordinate 506600; thence 

northeast along the CCV boundary 

returning to the point of beginning at 

the CSDAA boundary at UTM NAD 27 

y-coordinate 3606700. 

(iv) Note: Map of Unit 5, Subunits A, 

B, and C for Navarretia fossalis 

(spreading navarretia) follows: 

60694 Federal Register / Vol. 70, No. 200 / Tuesday, October 18, 2005 / Rules and Regulations 

* * * * * Dated: September 30, 2005. 

Craig Manson, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 05–20147 Filed 10–17–05; 8:45 am] 

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