[Federal Register Volume 70, Number 238 (Tuesday, December 13, 2005)]
[Rules and Regulations]
[Pages 73820-73863]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-23693]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Brodiaea filifolia (thread-leaved brodiaea); Final Rule

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT75


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Brodiaea filifolia (thread-leaved brodiaea)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), are designating 
critical habitat for the federally threatened Brodiaea filifolia 
(thread-leaved brodiaea) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 597 acres (ac) (242 
hectares (ha)) fall within the boundaries of the critical habitat 
designation. The critical habitat is located in Los Angeles and San 
Diego counties, California. Lands in Orange, Riverside, and San Diego 
counties that are covered by approved and draft habitat conservation 
plans are excluded under section 4(b)(2). Lands owned or controlled by 
the Department of Defense that are covered by an Integrated Natural 
Resource Management Plan (INRMP) that provides a benefit to the species 
are exempt from critical habitat under section 4(a)(3) of the Act. As a 
result of revisions based on peer and public comments and a re-
evaluation of methodology and mapping, approximately 4,093 ac (1,656 
ha) in Los Angeles, San Bernardino, Orange, and San Diego counties 
proposed as critical habitat were removed or excluded from this final 
designation. Lands designated as critical habitat are under Federal and 
private ownership. No Tribal lands are included in this critical 
habitat designation.

DATES: This rule becomes effective on January 12, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92011 (telephone 760-431-9440). The final rule, a list of 
references cited, the economic analysis, and maps will also be 
available on the Internet at http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office, at the above address (telephone 760-431-9440; 
facsimile 760-431-9624).

SUPPLEMENTARY INFORMATION: 

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species or 37.5 
percent of the 1,253 listed species in the U.S. under the jurisdiction 
of the Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference for the 
conservation of many species.
    We note, however, that the August 6, 2004, Ninth Circuit judicial 
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service, found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the Ninth Circuit's ruling and the Director's guidance.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
the limited listing funds are used to defend active lawsuits, to 
respond to Notices of Intent (NOIs) to sue relative to critical 
habitat, and to comply with the growing number of adverse court orders. 
As a result, listing petition responses, the Service's own proposals to 
list critically imperiled species and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment and, in some cases, the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated

[[Page 73821]]

earlier, and they directly reduce the funds available for direct and 
tangible conservation actions.

Background

    By 1998, when the species was listed, at least 25 percent of the 
known Brodiaea filifolia populations or occurrences had been eliminated 
by urbanization and agricultural conversion (63 FR 54975, October 13, 
1998). Urban development continues to be a threat to this species. 
Habitat for the species is also threatened by off-road vehicle use; 
non-agricultural grading and disking for weed control; clearing for 
firebreaks; alteration of existing hydrologic conditions resulting from 
construction and operation of flood control structures; over-grazing; 
and competition from non-native plant species (USFWS 1998, RECON 1999, 
CNDDB 2005). Occurrences of B. filifolia in Orange County and some in 
San Diego County are threatened by the perennial Cynara cardunculus 
(artichoke thistle or cardoon) (CNDDB 2005). B. filifolia and its 
habitat are also threatened by dumping of manure and sewage sludge on 
occupied habitat along the San Jacinto River in western Riverside 
County (Roberts in litt. 2005). This material can alter the soil 
chemistry and lead to changes in the vegetation sustainable on the 
sites.

Previous Federal Actions

    For more information on previous Federal actions concerning 
Brodiaea filifolia, refer to the final rule listing the species as 
threatened, published in the Federal Register on October 13, 1998 (63 
FR 54975), and the proposed critical habitat designation published in 
the Federal Register on December 8, 2004 (69 FR 71284). A recovery plan 
for B. filifolia has not yet been completed. The following text 
discusses Federal actions that occurred subsequent to the listing.
    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 Brodiaea filifolia 
(Center for Biological Diversity et al. v. Department of the Interior 
et al., CV 01-2101). A second lawsuit asserting the same challenge was 
filed by the Building Industry Legal Defense Foundation (BILD) on 
November 21, 2001 (Building Industry Legal Defense Foundation v. 
Department of the Interior et al., CV 01-2145). Both cases were 
consolidated on March 19, 2002, and all parties agreed to remand the 
critical habitat determinations to the Service for additional 
consideration. On July 1, 2002, the U.S. District Court for the 
Southern District of California directed us to publish a new prudency 
determination and, if prudent, propose critical habitat for B. 
filifolia on or before November 30, 2004, and to publish a final rule 
on or before November 30, 2005.
    In the final listing rule, we determined that critical habitat was 
not prudent for Brodiaea filifolia because such designation would 
provide no benefit over that provided by listing on private property 
where the species occurs (63 FR 54975). The courts have ruled that, in 
the absence of a finding that the designation of critical habitat would 
increase threats to a species, the existence of another type of 
protection, even if it offers potentially greater protection to the 
species, does not justify a ``'not prudent''' finding (Conservation 
Council for Hawaii v. Babbitt 2 F. Supp. 2d 1280). Accordingly, we 
withdrew our previous determination that the designation of critical 
habitat was not prudent for B. filifolia and determined that critical 
habitat designation for this species is prudent. We had sufficient 
information necessary to identify specific features essential to the 
conservation of B. filifolia and proposed critical habitat for this 
species on December 8, 2004 (69 FR 71284). With the publication of this 
rule, we are designating final critical habitat for B. filifolia in 
compliance with the court's order.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed critical habitat designation. We also 
invited public comment through the publication of notices on December 
17, 2004, in The Press-Enterprise, Riverside, CA; San Diego Union-
Tribune, San Diego, CA; Orange County Register, Santa Ana, CA; and the 
Los Angeles Times, Los Angeles, CA. The initial comment period ended 
February 7, 2005. There were no requests for public hearings.
    During the comment period that opened on December 8, 2004, and 
closed on February 7, 2005, we received 19 comment letters directly 
addressing the proposed critical habitat designation: 4 comment letters 
were received from 3 peer reviewers, 2 from Federal agencies, and 13 
from organizations or individuals. We received 2 additional comment 
letters that were illegible. We attempted to contact the authors of the 
letters but received no response; therefore, we could not consider the 
information. Thirteen commenters supported the designation of critical 
habitat for Brodiaea filifolia, and three opposed the designation. 
Three letters included comments or information, but did not express 
support or opposition to the proposed designation.
    A second comment period to consider the draft economic analysis of 
proposed critical habitat for Brodiaea filifolia opened on October 6, 
2005, and closed on October 20, 2005. During the comment period we 
received 6 letters: 5 from organizations or individuals and 1 from a 
local government agency. In opening the comment period on the draft 
economic analysis, we also reopened the comment period on our critical 
habitat proposal. Comments received during both comment periods were 
grouped into general issue categories relating to the proposed 
designation or the draft economic analysis.

Peer Review

    In accordance with our joint policy published on July 1, 1994 (59 
FR 34270), we solicited review of our proposed rule from at least three 
appropriate independent specialists/experts. The purpose of such review 
is to ensure our final designation is based on scientifically sound 
data, assumptions, and analyses. We solicited peer review from four 
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 three of the peer reviewers. The peer reviewers 
supported the designation; however, they expressed concern about errors 
and omissions in the proposal, including the exclusion of critical 
habitat on lands covered by Habitat Conservation Plans (HCP). Comments 
from peer reviewers and other commenters are addressed in the following 
summary, and corrections and information are incorporated into the 
final rule as appropriate.

Peer Reviewer Comments Related to Previous Federal Actions, the Act, 
and Implementing Regulations

    Similar comments that were received from other commenters are 
addressed in this section to avoid redundancy.
    (1) Comment: Two peer reviewers requested that we provide a review 
of the unique status of plants under the Act, including the limited 
protection plants are provided under section 9 of the Act and the pros 
and cons of critical habitat designation for plants. Another

[[Page 73822]]

commenter indicated that Brodiaea filifolia receives substantial 
protection under the California Endangered Species Act (CESA) and the 
California Environmental Quality Act (CEQA) and does not require 
special management considerations or protection.
    Our Response: Brodiaea filifolia is listed as an endangered species 
under the CESA. This allows the species to receive greater attention 
during the land use planning process by local governments, public 
agencies, and landowners. State listed plants are protected from 
removal, except by permit or agreement from the California Department 
of Fish and Game (CDFG). However, listing under the CESA doesn't remove 
all conservation threats to the species. Areas that contain features 
essential to the conservation of B. filifolia and that may require 
special management considerations or protection would still warrant 
critical habitat designation under the Act. The benefits and 
limitations of critical habitat designation for B. filifolia are 
addressed in several different sections throughout this document, 
including the ``Effects of Critical Habitat Designation,'' and 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act.''

Peer Reviewer Comments Related to Life History, Habitat 
Characteristics, and Ecological Considerations

    (2) Comment: Three peer reviewers and five other commenters 
provided additional information, clarifications, and references for 
aspects of the biology, associated vegetation, and soil preferences of 
Brodiaea filifolia. One peer reviewer considered ours an excellent 
overview of the biology of the species but lacking two references they 
cited.
    Our Response: We appreciate additional information and 
clarification and, where appropriate, we have incorporated this into 
the final rule.
    (3) Comment: One peer reviewer and one individual stated that we 
should have cited more recent information, including the California 
Natural Diversity Database (CNDDB), regarding the historical range of 
Brodiaea filifolia, pointing out that some new occurrences have been 
discovered.
    Our Response: In developing the proposed rule we used data compiled 
from the CNDDB database in 2003 as well as an update in 2004 (CNDDB 
2003; 2004). This is a running database that includes periodic updates 
of existing occurrence information and new occurrence records. There 
was one occurrence of Brodiaea filifolia identified in the 2004 update 
of the CNDDB that we overlooked. This occurrence is located in an 
unincorporated area of central San Diego County near Lake Hodges. 
Fortunately, this occurrence of about 688 plants is being conserved 
under a Minor Amendment to the San Diego County MSCP.
    Another occurrence in the same area was not entered into the CNDDB 
until April 6, 2005 (CNDDB 2005); therefore, we were not able to 
consider it in the proposed rule. It is not possible to include an area 
in this final critical habitat designation that was not identified in 
the proposed rule. Because we are under a court deadline to complete 
this final rule, the publication of a revised proposed rule to include 
this area for public review and comment could not have been completed 
in time to comply with the court's deadline.
    (4) Comment: One peer reviewer cites the dumping of sewage sludge 
as the most serious threat to Brodiaea filifolia along the San Jacinto 
River habitat in Riverside County. The peer reviewer also stated that 
these deposits alter the soil chemistry.
    Our Response: This comment is appreciated and a discussion of this 
threat has been incorporated into the ``Background'' section of this 
final rule.
    (5) Comment: A peer reviewer and two individuals provided differing 
views on the issue of translocation. One view asserted that 
translocation may not have a high chance for success. The other 
perspective considers it premature to state that translocation is a 
threat to the species. One peer reviewer requested that we discuss all 
of the translocated populations.
    Our Response: We are uncertain about the long-term viability of 
translocated populations and their contribution to the species as a 
whole, therefore, we did not specifically include them in this 
designation. However, translocated populations may contribute to the 
long-term survival and recovery of the species. Additional long-term 
monitoring for genetic diversity and the reproductive impact of these 
populations is warranted. Only issues specifically related to the 
critical habitat designation are discussed in this final rule, 
therefore, we have not included a broad overview of translocated 
populations in this document.

Peer Reviewer Comments Related to Critical Habitat, Primary Constituent 
Elements, and Methodology

    (6) Comment: Two peer reviewers and two other commenters expressed 
concern about errors and lack of attribution to citations in the 
proposed rule, suggesting that it be rewritten and re-released. Several 
questions, additions, and corrections to statements and information 
relating to proposed critical habitat units were provided by peer 
reviewers and other commenters.
    Our Response: Because of a court deadline to complete this final 
rule, we could not publish a revised proposed rule for public review 
and comment in time to comply with the court's deadline. One of the 
purposes of releasing the proposed rule and draft economic analysis for 
public review and comment is to obtain substantive information and 
materials related to the proposed critical habitat designation. We 
appreciate receiving additional information, corrections, and 
clarifications that were useful in our re-evaluation of the proposed 
units and unit descriptions. Where appropriate, we have included this 
information and answers to specific questions in the final rule. See 
the ``Summary of Changes from Proposed Rule'' section for a review of 
changes in the final designation.
    (7) Comment: One peer reviewer stated that we did not provide 
information on our reasoning for proposing critical habitat in a number 
of locations in Riverside and San Diego counties.
    Our Response: We have re-evaluated areas included in proposed 
critical habitat. This final designation reflects mapping refinements, 
our re-evaluation of proposed areas under section 3(5)(A), and 
exclusions under sections 4(a)(3) and 4(b)(2) of the Act. Please refer 
to the ``Criteria Used to Identify Critical Habitat,'' and the 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (8) Comment: Two peer reviewers suggested literature citations, 
with one requesting that we cite final versions rather than draft 
documents, and the other requesting that the references cited list be 
published with the text of the rule and posted on the Internet.
    Our Response: Where appropriate, we have incorporated these 
suggestions in this rule. We cite the most current version of documents 
available. As stated in the ``References Cited'' section of the rule, a 
list of references cited is available upon request from the Carlsbad 
Fish and Wildlife Office. We will also make this list available on the 
Internet at http://carlsbad.fws.gov.
    (9) Comment: One peer reviewer and a public commenter questioned 
our use of a draft version of Bramlet and White 2004 (erroneously cited 
as White and Bramlet 2004 in the proposed rule).

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    Our Response: We referred to a working table of occurrences (Table 
3) during the preparation of the proposed rule. The information in this 
table was considered to be one of the best available on the occurrences 
of Brodiaea filifolia. Only occurrences corroborated from other sources 
are considered in this final rule.
    (10) Comment: Two peer reviewers and two public commenters 
variously stated that the section of the proposed rule titled 
``Designation of Critical Habitat Provides Little Additional Benefit to 
Species'' is generic, editorializing, out of place in a proposal, and 
political. One commenter wanted us to point to the research that 
specifically justifies this claim in relation to Brodiaea filifolia.
    Our Response: The section referenced by the commenters is intended 
to be a general statement regarding our position on the designation of 
critical habitat. As discussed in the preamble of this and other 
critical habitat designation rules, we believe that, in most cases, 
conservation mechanisms provided through section 7, 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 landowners and Tribes provide greater incentives and 
conservation benefits than does the designation of critical habitat.
    (11) Comment: One peer reviewer and one commenter requested a 
definition of PCE. They also suggested clarifications for PCEs relating 
to habitat descriptions, soil types, slopes, and associated vegetation 
types.
    Our Response: As stated in the ``Primary Constituent Elements'' 
(PCE) section of the proposed rule (69 FR 71284), PCEs are those 
physical or biological features essential to the conservation of a 
species, and that may require special management considerations or 
protection. The PCEs for Brodiaea filifolia were based on the best 
available information relating to the species' occurrences and its soil 
and vegetation associations. Please refer to the ``Methods'' section of 
this final rule for a discussion of all information sources used to 
define the PCEs for B. filifolia.
    (12) Comment: Two peer reviewers noted the ability of Brodiaea 
filifolia to persist on disturbed, degraded, or disked sites and the 
suitability of these sites if allowed to recover, especially by natural 
flooding processes.
    Our Response: It is likely that some areas supporting occurrences 
of Brodiaea filifolia have been degraded to some degree. The areas 
included in proposed critical habitat and areas excluded from proposed 
designation under section 4(b)(2) of the Act were identified as being 
occupied and containing the physical or biological features essential 
to the conservation of the species. Lands included in this final 
designation are occupied and contain the features essential to the 
conservation of B. filifolia. Please refer to the ``Application of 
Section 3(5)(A), Exemption Under 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' section for information about areas removed, 
exempted, or excluded from critical habitat.
    (13) Comment: Two peer reviewers and three other commenters 
provided information and suggestions related to the species' biology, 
habitat description, and condition, as well as boundaries of the 
critical habitat subunits and areas containing habitat with features 
essential to the conservation of this species that were excluded from 
critical habitat in our proposal. One peer reviewer also noted that 
some units included unsuitable habitat. One commenter recommended we 
change the configuration of boundaries in the Rancho Santalina/Loma 
Alta subunit to better represent the areas containing features 
essential to the conservation of Brodiaea filifolia.
    Our Response: We appreciate the information and suggestions from 
these commenters and, where appropriate, we have incorporated the 
information on subunit descriptions into this final rule. Some of the 
commenters discussed making the boundaries of critical habitat subunits 
and areas containing habitat with features essential to the 
conservation of this species more precise. We made such changes where 
appropriate. We have attempted to map the boundaries to exclude 
developed land; however, we may not have been able to exclude all 
developed land or land that does not contain the PCEs. Any such 
structures and the land under them inadvertently left inside the mapped 
critical habitat boundaries have been excluded in the text portion of 
the rule, and are not designated as critical habitat. Federal actions 
limited to these areas would not trigger section 7 consultations, 
unless they affect the species and/or primary constituent elements in 
adjacent critical habitat.
    Some commenters suggested including additional areas in the 
proposed subunits or making boundary adjustments in areas containing 
features essential to the conservation of the species that were 
excluded from proposed designation. However, these commenters did not 
provide sufficient site-specific data for us to adequately evaluate 
their recommendations. We reviewed the proposed Santalina/Loma Alta 
subunit and determined it does not meet the definition of critical 
habitat under section 3(5)(A) of the Act. Please refer to the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (14) Comment: Two peer reviewers and one commenter questioned our 
use of occurrences with 1,000 or more plants as a measure of whether an 
area contained habitat with features essential to the conservation of 
Brodiaea filifolia. One commenter questioned the science behind our 
decision not to propose all occurrences of B. filifolia in Orange and 
San Diego counties as critical habitat.
    Our Response: In developing our proposal, we relied on several 
types of information to determine whether an occurrence of Brodiaea 
filifolia was considered significant. As outlined in the ``Criteria 
Used to Identify Critical Habitat'' section, we evaluated population 
estimates, soil types, associated vegetation, and elevation. We also 
evaluated the location of occurrences in relation to the range of the 
species. For example, occurrences that supported less than 1,000 
plants, but which were on alkali playas were considered to be 
significant. For an explanation of why more areas in Orange and San 
Diego counties were not included in the final designation, please refer 
to the ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' portion of 
this rule.
    (15) Comment: One peer reviewer and one individual questioned the 
value of including small units (e.g., 6b (Mesa Drive)), or those with 
few plants (e.g., subunits 4d (Prima Deschecha), 4f (Talega/Segunda 
Deschecha), and 6a (Alta Creek)) as critical habitat.
    Our Response: We considered occurrence information, soil types, 
vegetation association and other factors in our re-evaluation of 
proposed subunits. As a result of our re-evaluation, several proposed 
subunits, including 4d, 4f, and 6a, were removed from final 
designation. Subunit 6b (Mesa Drive) is relatively small, covering 
about 5 ac (2 ha), but it supports a significant occurrence of Brodiaea 
filifolia and contains features essential to the conservation of the 
species; therefore, it was included in proposed critical habitat. 
However, subunit 6b was excluded from final designation under section 
4(b)(2) of the Act. Please see the ``Summary of Changes from Proposed 
Rule,'' and

[[Page 73824]]

``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' sections for more 
information.
    (16) Comment: One peer reviewer recommended that we add Domino or 
Chino alkali soils to the description of PCEs because Brodiaea 
filifolia occurs on these soil types in Riverside County.
    Our Response: We have reviewed this information and have included 
these soil types in our definition of the PCEs for Brodiaea filifolia.
    (17) Comment: Two peer reviewers and one Federal agency commenter 
questioned our inclusion of subunits 5a (Miller Mountain) and 5b (Devil 
Canyon) in proposed critical habitat because most plants in subunit 5a 
and some in subunit 5b are hybrids between Brodiaea filifolia and 
Brodiaea orcuttii. One peer reviewer noted that hybrids occur in the 
City of San Marcos and on Marine Corps Base, Camp Pendleton (Camp 
Pendleton), although specific numbers and locations were not provided. 
One peer reviewer stated that plants in areas containing features 
essential to the conservation of the species in Riverside County are 
prone to hybridization. Another commenter, knowledgeable about the 
genetics of Brodiaea, stated that B. filifolia and B. orcuttii form a 
unique line and could hybridize only with each other.
    Our Response: We acknowledge that within subunits 5a and 5b, there 
are substantial numbers of plants that are hybrids of Brodiaea 
filifolia and Brodiaea orcuttii (Boyd et al. 1992). The population in 
subunit 5a is considered to be largely hybridized and we cannot 
determine that they can be considered as contributors to the long-term 
conservation of the species; therefore, we removed this subunit from 
consideration. Although plants in subunit 5b also show some 
hybridization, the extent of the hybridization is less. The occurrence 
of B. filifolia in subunit 5b is significant and is found at one of the 
highest elevations within the range of the species. We have included 
the portion of land in subunit 5b that is occupied by B. filifolia and 
contains features essential to the conservation of the species in this 
final designation. Please see the ``Summary of Changes from Proposed 
Rule'' and ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act,'' and ``Unit 
Descriptions'' sections for more information.
    We are aware of a CNDDB (Element Occurrence 10) report in the City 
of San Marcos that included a reference to the possible presence of 
hybrids between Brodiaea filifolia and B. jolonensis. This area was 
identified as subunit 8d (Upham) in our proposed rule. It has been 
reported that putative hybrid individuals of B. filifolia and another 
species that has been erroneously referred to B. jolonensis occur on 
the site (Armstrong 2005). Though these hybrid plants exhibit 
intermediate characteristics between the two theorized parental 
species, a third species, B. orcuttii, also grows nearby within the 
unit. According to Armstrong (2005), the hybrid plants appeared to be a 
``clonal population'' restricted to ``a one acre area at the southwest 
end of the property'' and that these individuals ``probably reproduced 
asexually through cormlets.'' Although Armstrong (2005) found 
``numerous B. filifolia, B. orcuttii, and (the material referred to as 
B. jolonensis)'' growing within the unit in May 2005, he failed to 
observe any of the hybrid plants. As a result, although putative 
hybridization has been reported for this unit, hybrid plants are either 
no longer present or they represent an undetectable, small fraction of 
the overall population of B. filifolia. The occurrence of B. filifolia 
in this subunit is estimated to support about 1,000 plants and contains 
features essential to the conservation of the species.
    We were not able to confirm the commenter's reference to hybrids on 
Camp Pendleton.
    (18) Comment: One peer reviewer considered the mapping of lands in 
Riverside County that were excluded from proposed critical habitat to 
be inadequate. One individual requested UTMs for these same areas.
    Our Response: As stated in the proposed rule, maps of the areas in 
Riverside County containing features essential to the conservation of 
Brodiaea filifolia that were excluded under section 4(b)(2) of the Act, 
based on conservation measures outlined in the Western Riverside County 
Multiple Species Habitat Conservation Plan (MSHCP), were available on 
our Web site. We believe that the general public finds these maps more 
useful than the UTM coordinates. Also, GIS layers of the areas proposed 
for critical habitat designation as well as areas excluded from 
proposed critical habitat are available upon request from our office. 
We will clarify the availability of this information in future critical 
habitat rules.
    (19) Comment: One peer reviewer expressed the importance of 
designating critical habitat for Brodiaea filifolia in irregularly 
flooded bottomland areas of the San Jacinto River floodplain because of 
concerns that alteration of the floodplain could adversely modify a 
significant portion of the Riverside County occurrences of the plant 
and eliminate a unique element of the species' habitat associations 
(i.e., plants adapted to alkali soils). The reviewer stated that 
designation of critical habitat in the San Jacinto River floodplain 
area would strengthen the regulatory effectiveness of section 7 by 
adding ``adverse modification'' to the jeopardy standard available to 
the Service and ensure that activities of the U.S. Army Corps of 
Engineers (ACOE) do not adversely modify the habitat. The reviewer also 
indicated that thousands of acres are undergoing alteration by sewage 
sludge and manure dumping.
    Our Response: We agree that areas supporting Brodiaea filifolia in 
the San Jacinto River floodplain are important because they contain 
features essential to the conservation of the species. However, these 
areas have been excluded from critical habitat because the Western 
Riverside County MSHCP addresses the conservation needs of the species, 
including the maintenance of floodplain processes along the San Jacinto 
River. The Secretary has determined the benefits of excluding lands 
covered by the Western Riverside County MSHCP outweigh the benefits of 
including them in critical habitat (see the ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' section of this rule.)
    (20) Comment: Two peer reviewers and one individual commenter 
stated that areas we identified as having features essential to the 
conservation of Brodiaea filifolia near the City of Corona and in 
Moreno Valley in Riverside County are erroneous and based on an early 
draft of the Western Riverside County MSHCP. The commenter suggested 
they might be derived from questionable biological surveys.
    Our Response: We appreciate the correction. After further 
evaluation, we did not find reliable data validating the occurrences of 
Brodiaea filifolia at these locations, and we removed them from 
consideration. For more information, please refer to the ``Summary of 
Changes from Proposed Rule.''
    (21) Comment: One peer reviewer suggested that we designate habitat 
blocks that contain the entire San Jacinto River floodplain to capture 
the historical habitat of the species.
    Our Response: When designating critical habitat for Brodiaea 
filifolia we identified land containing physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. Physical or

[[Page 73825]]

biological features include areas needed for pollen dispersal and 
pollination; seed dispersal and germination, and maintenance of seed 
banks; and areas that provide the basic requirements for growth. These 
features, referred to as PCEs, are discussed in the ``Primary 
Constituent Elements'' section of this rule. Areas in western Riverside 
County, including lands within the San Jacinto River floodplain that 
are occupied by B. filifolia and contain features essential to the 
conservation of the species have been excluded from critical habitat 
pursuant to section 4(b)(2) of the Act (see ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act.'')
    (22) Comment: One peer reviewer questioned how land management of 
reserves helps recovery of the species with and without critical 
habitat.
    Our Response: We are assuming the peer reviewer is referring 
specifically to reserves that are established in conjunction with HCPs. 
Approved HCPs include measures to monitor, minimize, and mitigate 
impacts; and must provide adequate funding. Management of reserves in 
accordance with an HCP's issuance criteria would be carried our 
regardless of a critical habitat designation on identified reserve 
lands. Only actions authorized, funded, or carried out by a Federal 
agency that may affect critical habitat would require consultation with 
us and would not affect actions undertaken on reserve areas that do not 
have a Federal nexus. Reserves established as part of an HCP include 
monitoring and management to ensure the areas retain their biological 
value for the species.

Peer Review Comments Related to Department of Defense (DoD) Lands

    (23) Comment: One peer reviewer requested a discussion of the 
importance of populations of Brodiaea filifolia on Camp Pendleton.
    Our Response: Populations of Brodiaea filifolia on Camp Pendleton 
are of considerable importance not only because of the numbers of 
plants reported (over 4,000) from several different occurrences, but 
also because they are found in more than one vegetation or soil 
association, including grasslands and vernal pools; the occurrences are 
distributed in a manner that likely facilitates pollen transfer among 
them and also with occurrences to the north and south of Camp 
Pendleton. Please see the ``Application of Section 3(5)(A), Exemption 
Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) of the 
Act'' for more information about Camp Pendleton's Integrated Natural 
Resource Management Plan (INRMP) and other measures Camp Pendleton is 
undertaking to address B. filifolia on their lands.

Peer Review Comments Related to the NCCP/HCP Program, Section 7, and 
Section 404

    (24) Comment: Two peer reviewers and one commenter disagreed with 
our determination to exclude critical habitat based on approved HCPs. 
One peer reviewer expressed further concern that it is uncertain 
whether HCPs will protect these areas because no specific preserve 
boundaries have been proposed, relying instead on goals and potential 
conservation. The reviewers stated that we did not provide a clear 
biological reason for excluding lands covered by HCPs and questioned 
why more areas were not determined to be critical habitat.
    Our Response: Under section 4(b)(2) of the Act, the Secretary may 
exclude any particular area from critical habitat designation if the 
benefits of excluding such area outweigh the benefits of including it 
in critical habitat, unless it is determined, based on the best 
scientific and commercial data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. We evaluated the benefits of excluding critical habitat on 
lands covered by HCPs, including the Western Riverside County MSHCP, 
the San Diego County Multiple Habitat Conservation Plan (MHCP) and its 
approved subarea plans, the Orange County Central and Coastal NCCP/HCP, 
and the Settlement Agreement for Rancho Mission Viejo's Ranch Plan, a 
component of the draft Orange County Southern Subregion NCCP/HCP, 
against the benefits of including such lands in critical habitat. A 
major benefit of excluding these lands from critical habitat is the 
facilitation of continued partnerships with the various signatory 
agencies, cities and landowners involved with these NCCP/HCP efforts. 
Although a possible benefit of including these lands in critical 
habitat would be to enhance education about the species and its habitat 
needs, we consider this benefit to have largely been met through the 
public participation process that occurred, and continues to occur, 
during the development and implementation of these conservation 
planning efforts. We acknowledge that the Western Riverside County 
MSHCP does not describe a hard-lined reserve, but it does identify 
specific conservation goals and objectives for Brodiaea filifolia, 
including the conservation of 11 occurrences in the two Core Areas in 
western Riverside County where this species is found.
    Please refer to the ``Application of Section 3(5)(A), Exemption 
Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) of the 
Act'' section for more discussion of the Western Riverside County MSHCP 
and other NCCP/HCP efforts.
    (25) Comment: Two peer reviewers state that the Lakeview/Nuevo Area 
Plan (Dudek and Associates 2003) is inconsistent with provisions of the 
Western Riverside County MSHCP because it has nearly the entire 
Criteria Area zoned for residential development.
    Our Response: Under the Western Riverside County MSHCP, permittees 
are obligated to adopt and maintain ordinances or resolutions as 
necessary, and amend their general plans as appropriate, to implement 
the requirements and fulfill the purposes of the MSHCP and its 
associated Implementing Agreement (IA) and Permit (Dudek and Associates 
2003).
    (26) Comment: Two peer reviewers requested that we discuss specific 
conservation actions under the Western Riverside County MSHCP that will 
result in conservation of Brodiaea filifolia. One reviewer specifically 
asked what assurances are in place that conservation benefits will 
occur before Highway 79 is built through habitat for the species.
    Our Response: The Western Riverside County MSHCP identifies 
specific goals to be implemented for long-term conservation of Brodiaea 
filifolia, including conservation of at least 6,900 ac (2,760 ha) of 
habitat, containing 11 major locations supporting the species, 
conducting surveys for B. filifolia in certain areas, and maintaining 
floodplain processes along the San Jacinto River.
    The assembly of the MSHCP Conservation Area is anticipated to occur 
over a period of time during the life of the Permit. To ensure that the 
resources ultimately conveyed to the MSHCP Conservation Area are 
maintained in their existing condition prior to reserve assembly, the 
MSHCP permittees are obligated to adopt and maintain ordinances or 
resolutions and to amend their general plans such that they will be 
able to meet their obligations under the MSHCP (Dudek and Associates, 
Inc. 2003; 2003b).
    Several covered activities discussed under the MSHCP have the 
potential to impact populations of Brodiaea filifolia within the 
proposed MSHCP Conservation Area, including the San Jacinto River Flood 
Control Project and the State Route 79 Realignment Project.

[[Page 73826]]

These projects will require additional consultation with our agency 
under section 7 of the Act (Dudek and Associates, Inc. 2003).
    As a result of informal consultation conducted to date on the State 
Route 79 Realignment Project, the City of Hemet has adopted an Interim 
Urgency Ordinance that preserves two avoidance alternatives for the 
State Route 79 Realignment Project, both of which are located outside 
of the MSHCP Criteria Area, and also allows the City to ensure that 
development efforts within the MSHCP Criteria Area are coordinated such 
that habitat conserved within the Criteria Area does not become 
fragmented, thereby allowing the City to meet their obligations under 
the MSHCP (City of Hemet 2005).
    (27) Comment: One peer reviewer stated that there was no protection 
of land for Brodiaea filifolia before the approval of the Western 
Riverside County MSHCP, and there is no protection now, as evidenced by 
the ongoing dumping of sewage sludge and manure on occupied habitat. 
The reviewer cited an area along Case Road where dumping has occurred.
    Our Response: Permittees under the Western Riverside County MSHCP 
are obligated to adopt and maintain ordinances or resolutions as 
necessary, and amend their general plans as appropriate, to implement 
the requirements and to fulfill the purposes of the MSHCP and its 
associated IA and Permit (Dudek and Associates, Inc. 2003; 2003b). The 
Western Riverside County MSHCP is a large, complex habitat conservation 
plan, and its implementation is expected to take time. In its first 
year of implementation, the Western Riverside County MSHCP has already 
resulted in conservation and management actions that address threats to 
Brodiaea filifolia on private lands. For example, the City of Hemet has 
adopted an ordinance that has halted the dumping of manure within the 
City (City of Hemet 2002).
    (28) Comment: One peer reviewer expressed concern that there is no 
assurance that prioritization of conservation areas following the 
criteria of the Western Riverside County MSHCP will select the more 
favorable biological areas over less favorable areas. For example, 
while the Western Riverside County MSHCP proposes one method of 
conservation, another, yet to be disclosed method, could prevail.
    Our Response: We refer the reader to our responses to comments 24 
and 26 above and to the section titled ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' for more information.
    (29) Comment: One peer reviewer, citing the Fieldstone/La Costa 
Associates HCP/Ongoing Multi-species Plan (known as the Villages of La 
Costa HCP), approved about 10 years ago, states that HCPs are supposed 
to provide for monitoring of the status of covered species to measure 
the success of conservation measures and asked us to document the 
status of the reserve.
    Our Response: Conservation provisions for Brodiaea filifolia 
outlined in the Villages of La Costa HCP include protection of almost 
6,000 plants in an open-space preserve with long-term management and 
monitoring, habitat restoration, and control of invasive plant species. 
Further information about this HCP can be found in the section titled 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act.''

Public Comments Related to Life History, Habitat Characteristics, and 
Ecological Considerations

    (30) Comment: One commenter criticized our use of foraging distance 
data based on Bombus taxa (bumblebees), stating that their studies had 
not recorded a single instance of bumblebees visiting Brodiaea 
filifolia on their property.
    Our Response: We believe our use of the 820 feet (ft) (250 meters 
(m)) distance for pollinator movement and habitat is justified. Bell 
and Rey (1991) noted Bombus californicus as one of the native bees 
observed pollinating Brodiaea filifolia on the Santa Rosa Plateau in 
Riverside County. Please see the ``Criteria Used to Identify Critical 
Habitat'' section for a detailed discussion.
    (31) Comment: One commenter criticized our omission of a study of 
pollinators conducted by Rancho Mission Viejo.
    Our Response: The omission of this report was inadvertent. The 
report summarizes field studies conducted in late spring 2003 and 
reports insects visiting flowers of Brodiaea filifolia at two locations 
and two times during the season. Observations were made on three dates 
between April and May 2003. Burrowing bees (Anthophoridae), Sweat bees 
(Halictidae), and Flower-loving flies (Syrphidae) were the most common 
groups of insects observed, although it is not clear from the report 
whether pollination by the various insects was confirmed by 
observations of fruit production by the plants. Information from this 
report is incorporated, where appropriate, in this final rule.

Public Comments Related to Critical Habitat, Primary Constituent 
Elements, and Methodology

    (32) Comment: One commenter suggested a method for designing the 
size of conservation areas based on Burgman et al. (2001).
    Our Response: Although the information is appreciated, it is 
important to clarify the differences between establishment of 
conservation areas and the designation of critical habitat. The 
designation of critical habitat does not establish reserves, preserves, 
wilderness areas, refuges or other types of conservation areas. We 
suggest readers refer to the sections on ``Methods,'' ``Primary 
Constituent Elements,'' and ``Effects of Critical Habitat Designation'' 
to more fully understand how we identified areas for critical habitat 
designation, the features essential to the conservation of the species, 
and the effect of critical habitat on landowners.
    (33) Comment: One commenter wanted to know how many occurrences in 
Riverside and San Diego counties are outside designated critical 
habitat and how this would affect the viability of the species.
    Our Response: A number of occurrences in Riverside and San Diego 
counties were not proposed for designation because they were not 
considered significant occurrences, or were excluded from proposed 
critical habitat under section 4(b)(2) of the Act. Many of these areas 
receive conservation consideration under existing INRMPs, HCPs, or 
other conservation instruments. Please refer to the ``Application of 
Section 3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under 
Section 4(b)(2) of the Act'' for more information. Please note that, 
although habitat for Brodiaea filifolia may be outside the boundaries 
of designated critical habitat, it does not mean these areas are 
unimportant or may not be necessary for recovery of the species.
    (34) Comment: One commenter stated that the purpose of critical 
habitat under section 3 of the Act is to facilitate recovery of species 
and that it should include the opportunity for genetic exchange, 
migration, and changes in climate.
    Our Response: The definition of critical habitat has two prongs, 
that is, one prong considers specific areas within the geographic area 
occupied by the species and the second prong considers specific areas 
outside the geographic area occupied by the species.

[[Page 73827]]

To the extent that we can relate genetic exchange, migration, and 
changes in climate to physical and biological features essential to the 
conservation of the species and those areas also require special 
management considerations or protection (prong one) or based upon a 
determination by the Secretary that an unoccupied area is essential to 
the conservation of the species (prong two), we may and do consider 
those factors in our designation of critical habitat. Please see the 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species'' section and the ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' for more information and discussion.
    (35) Comment: One commenter stated there is a poor record of 
recovery for species with critical habitat while another commenter 
cited a report indicating that species with critical habitat are less 
likely to be in decline and twice as likely to be recovering.
    Our Response: The Service has been unable to independently verify 
the results of such studies. The fact that there are conflicting 
studies shows that the issue has not been settled. The Service believes 
that most of the protections of the Act come with listing the species, 
and by far the most successful recovery efforts come from voluntary 
partnerships. Critical habitat designation is not the sole means by 
which conservation of a species may be addressed.
    (36) Comment: One commenter characterized our proposed rule as a 
sweeping designation that exceeds our congressional mandate. The 
commenter further stated that our designation should be based on the 
estimated 825 ac (334 ha) of land occupied by Brodiaea filifolia 
identified in the final listing rule (63 FR 54975). Another commenter 
stated that Congress intended for critical habitat to be extremely 
narrowly defined and limited only to areas necessary to bring the 
species to a point where it is no longer in danger of extinction.
    Our Response: In developing the final critical habitat designation 
for B. filifolia, we reviewed all information and data received during 
the two public comment periods and have removed from consideration 
those lands that do not meet the criteria for designation. Specific 
areas included in this final designation contain the physical or 
biological features essential to the conservation of B. filifolia, 
including space for pollen dispersal and pollination; seed dispersal 
and germination, and maintenance of seed banks; and areas that provide 
the basic requirements for growth. Please refer to the ``Summary of 
Changes From Proposed Rule,'' and ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' sections of this rule for more information.
    (37) Comment: One commenter requested that we indicate which 
parcels within critical habitat units/subunits contain the PCEs. The 
commenter also stated that all lands within proposed units/subunits may 
not contain all of the PCEs.
    Our Response: In re-evaluating areas proposed as critical habitat 
for Brodiaea filifolia, we determined that some areas do not contain 
features essential to the conservation of the plant, and therefore were 
removed from final designation. The ``Summary of Changes from Proposed 
Rule'' and ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act'' sections 
provide information about areas removed from final designation. Due to 
the scale at which we map critical habitat boundaries, we do not 
include parcel level detail. If lands within the boundaries of critical 
habitat units/subunits do not contain any PCEs, then they have been 
excluded from the designation in the text portion of the rule.
    (38) Comment: One commenter stated that it was not good science to 
``extrapolate'' genetic information from studies on a ``ubiquitous 
genera'' such as Lasthenia (lasthenia) to narrow endemic species such 
as Brodiaea filifolia.
    Our Response: We cited the reference to Lasthenia to highlight the 
significance of outlying portions of a species' range to its genetic 
diversity. Ornduff (1966) cites several species of Lasthenia with 
morphological or cytological variants at the margins of their 
distributions. One example used was Lasthenia fremontii, restricted to 
vernal pools or wet meadows in the Central Valley. This example was 
cited for the purposes of explaining how peripheral populations of 
Brodiaea filifolia may be important to maintaining the genetic 
diversity of the taxa.
    (39) Comment: Two commenters questioned our 820 ft (250 m) 
pollinator movement and habitat area. One commenter thought it was too 
narrow, the other thought it was too wide. One cited a reference that 
one group of bees (halictids) forage no more than 328 ft (100 m).
    Our Response: We have included additional references and discussion 
in the ``Background'' section of this rule to support our use of 820 ft 
(250 m) for a pollinator movement and habitat area. Please see the 
``Background'' and ``Criteria Used to Identify Critical Habitat'' 
sections for a detailed discussion.

Public Comments Related to Department of Defense Lands

    (40) Comment: One Federal agency commenter agreed with our 
exclusion of mission-critical areas on Camp Pendleton from critical 
habitat designation under section 4(b)(2) of the Act; however, they 
strongly disagreed with our determination in the proposed rule that 
Camp Pendleton's Integrated Natural Resource Management Plan (INRMP) 
does not provide a benefit for Brodiaea filifolia. The commenter 
characterized critical habitat as encroachment that would unacceptably 
degrade Camp Pendleton's mission. The commenter also provided 
information about programs and activities carried out under the INRMP 
for B. filifolia.
    Our Response: We appreciate the information from the commenter and 
have reviewed Camp Pendleton's INRMP, completed in November 2001 (U.S. 
Marine Corps 2001). Based on our review of the INRMP and information 
provided by the commenter, we determined that the INRMP provides a 
benefit for Brodiaea filifolia and have exempted Camp Pendleton from 
critical habitat designation pursuant to section 4(a)(3) of the Act. We 
have also determined that exclusion of Camp Pendleton pursuant to 
section 4(b)(2) of the Act is also appropriate. Please see the 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' section for more 
information.
    (41) Comment: One commenter claimed we are inconsistent in 
excluding Camp Pendleton from critical habitat designation while other 
military installations have critical habitat on their lands.
    Our Response: The commenter did not cite which military 
installation(s) had critical habitat designation(s); therefore, we 
cannot provide specific information about a particular installation. 
Under section 4(b)(2) of the Act, the Secretary shall designate 
critical habitat, and revise critical habitat on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying a particular area as critical habitat. The 
Secretary may exclude any particular area from critical habitat if the 
benefits of such exclusion outweigh the benefits

[[Page 73828]]

of specifying such area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species. These determinations are made by the Secretary on a 
species-by-species and area-by-area basis.
    Section 318 of the fiscal year 2004 National Defense Authorization 
Act (Pub. L. 108-136) amended the Act by adding a new section 
4(a)(3)(B). This provision prohibits designation of critical habitat on 
any lands or other geographical areas owned or controlled by the 
Department of Defense (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 determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation.
    The provisions of section 3(5)(A), 4(a)(3), and 4(b)(2) of the Act 
are fully considered by us when designating critical habitat. In some 
cases, critical habitat may have been designated on lands owned or 
controlled by the DOD prior to the 2004 amendments to the Act, or if 
otherwise determined to be appropriate. Please see the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information. Any 
revisions to designated critical habitat could be considered through 
the formal rulemaking process, subject to funding availability.

Public Comments Related to NCCP/HCP Program, Section 7, and Section 404

    (42) Comment: One commenter stated that the Ranch Plan, a component 
of the draft Orange County Southern Subregion NCCP/HCP is designed to 
maximize gene flow for Brodiaea filifolia and that implementation of 
the Ranch Plan would not significantly reduce genetic exchange because 
of preexisting isolation. The commenter requested their property be 
excluded from critical habitat designation for B. filifolia because of 
the protections afforded the species under the draft NCCP/HCP.
    Our Response: In general, it is our policy to consider excluding 
from critical habitat designation HCPs that are approved or are very 
close to completion as indicated by the fact that an Environmental 
Impact Statement/Environmental Impact Report (EIS/EIR) has already been 
prepared and released for public review and comment. We have not yet 
released a draft EIS/EIR for the Orange County Southern Subregion NCCP/
HCP for public review and comment; however, we are excluding from final 
critical habitat designation the portion of lands within the boundary 
of the draft NCCP/HCP that are owned by Rancho Mission Viejo and 
identified in the Ranch Plan under section 4(b)(2) of the Act, based on 
a recent Settlement Agreement. Please refer to the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (43) Comment: One commenter stated that the City of San Marcos does 
not have an approved HCP and is not likely to have one in the near 
future that would warrant exclusion of their lands from critical 
habitat under section 4(b)(2) of the Act.
    Our Response: We did not exclude any lands within the City of San 
Marcos under section 4(b)(2) of the Act; however, some lands in the 
City of San Marcos were removed from further consideration as critical 
habitat. Please refer to the ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' for more information.
    (44) Comment: Three commenters supported our practice of excluding 
critical habitat on areas covered by HCPs. One also suggested that we 
exclude areas covered under proposed HCPs, noting that failure to do so 
would remove incentives for them to participate in these planning 
efforts. This commenter also stated that exemptions from critical 
habitat should automatically follow approval of an HCP. Another 
commenter further stated that designating critical habitat in areas 
covered by an HCP would impose economic burdens, invite legal 
challenges, and be a disincentive to developing HCPs.
    Our Response: It is our policy to exclude from critical habitat 
lands containing features essential to the conservation of a federally 
listed species that are covered by approved HCPs. Pursuant to section 
4(b)(2) of the Act, critical habitat is to be designated or revised 
based on the best scientific data available and after taking into 
consideration the economic impact, national security impact, and any 
other relevant impact of specifying any particular area as critical 
habitat. The Secretary may exclude any area from critical habitat if 
the benefits of excluding such area outweigh the benefits of including 
it in critical habitat, unless such exclusion will result in the 
extinction of the species. As part of the process of balancing the 
benefits of including or excluding any particular area as critical 
habitat, including lands covered by approved HCPs and/or NCCP/HCPs, 
many factors are considered, including the issues identified by the 
commenters.
    We make a determination to exclude lands within the boundaries of 
draft HCPs on a case-by-case basis. Generally, we exclude critical 
habitat from lands within the boundaries of draft HCPs or NCCP/HCPs if 
we can point to significant progress in the development of a draft HCP 
and/or NCCP/HCP, including the release of an EIR/EIS for public review 
and comment or development of some other identified conservation 
commitment, and we are confident the planning effort will lead to a 
successful outcome. With regard to automatic exemptions following 
approval of HCPs or NCCP/HCPs, section 4(b)(5)(A) of the Act requires 
that any proposed regulation, including revisions to critical habitat, 
be published in the Federal Register and that the public be afforded an 
opportunity to review and comment. Revisions to critical habitat 
designations without providing notice to the public would violate the 
Act. Please refer to the section ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' for more discussion of this topic.
    (45) Comment: Two commenters supported the designation of critical 
habitat in areas with HCPs, one noting that local agencies would 
welcome assistance from the Service and the other stating that critical 
habitat would ensure that an HCP would meet its success criteria.
    Our Response: Both HCPs and critical habitat designations are 
designed to provide conservation measures to protect species and their 
habitats. The advantage of seeking new conservation partnerships 
(through HCPs or other means) is that they can offer active management 
and other conservation measures for the habitat on a full-time and 
predictable basis. Critical habitat requires Federal agencies that 
authorize, fund or carry out activities that may affect critical 
habitat to consult with us to ensure such actions do not destroy or 
adversely modify designated critical habitat. In some cases, the 
designation of critical habitat may remove incentives to participate in 
the HCP process because of added regulatory uncertainty; increased 
costs to plan development and implementation; weakened stakeholder 
support; delayed approval and development of an HCP; and greater 
vulnerability to legal challenge or other concerns. In some instances, 
we have received direct statements from landowners expressing their 
intent to withdraw from other types of cooperative efforts beneficial 
to

[[Page 73829]]

the conservation of listed species if their property was proposed for 
inclusion in critical habitat. We work with HCP applicants to ensure 
that their plans meet the issuance criteria and that the designation of 
critical habitat on lands where an HCP is in development does not delay 
the approval and implementation of the HCP. Additionally, HCPs include 
conservation actions for covered species whether or not the area is 
designated as critical habitat.
    (46) Comment: One commenter wanted to know how we determined that 
the benefits of excluding HCP areas from critical habitat outweigh the 
benefits of their inclusion.
    Our Response: We refer the reader to the ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' section for an explanation of how we have weighed 
the benefits of including or excluding critical habitat for Brodiaea 
filifolia on lands covered by HCPs.

Comments Related to Economic Analysis; and Other Relevant Impacts

    (47) Comment: Two commenters criticized our failure to include the 
economic analysis with the critical habitat proposal and one of these 
commenters also noted the lack of an EIS and National Environmental 
Policy Act (NEPA) analysis.
    Our Response: We published our proposed designation of critical 
habitat for Brodiaea filifolia in the Federal Register on December 8, 
2004 (69 FR 71284). At that time, our Division of Economics and their 
consultants initiated preparation of a draft economic analysis of the 
proposed designation. The draft economic analysis was released for 
public review and comment on October 6, 2005 (70 FR 58361), and we 
accepted comments on both the draft economic analysis and proposed rule 
until October 20, 2005. With regard to the preparation of an EIS and 
NEPA analysis, 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. Please see the ``National 
Environmental Policy Act'' section of this rule for additional 
information.
    (48) Comment: One public commenter stated that we failed to assess 
the impact of multiple critical habitat designations on landowners.
    Our Response: To comply with the 10th Circuit Court of Appeal's 
ruling in the New Mexico Cattle Growers Association case (248 F.3d at 
1285) to include all co-extensive effects, the economic analysis 
considers the potential economic impacts of efforts to protect the 
Brodiaea filifolia and its habitat in critical habitat. It does so by 
taking into account the cost of conservation related measures that are 
likely to be associated with future economic activities that may 
adversely affect the habitat within the proposed boundaries. Our 
economic analysis fully evaluated the economic and other impacts of 
designating critical habitat pursuant to section 4(b)(2) of the Act. 
The economic and other impacts of critical habitat are individually 
analyzed in our economic analysis report, which parallels our review of 
a Federal action under section 7(a)(2) of the Act. Our analysis of the 
effects of a Federal action under section 7(a)(2) of the Act would 
consider the effects to any designated critical habitat. In the 
proposed and final rules, we describe and evaluate potential activities 
that may adversely modify critical habitat or may be affected by such 
designation pursuant to section 4(b)(8) of the Act. Each critical 
habitat designation may be affected differently by a proposed action in 
a manner that reflects the specific physical and biological features 
that are considered essential for the listed species. Thus, our 
economic analysis would reflect the economic and other impacts specific 
to each designation.
    (49) Comment: One commenter states that the draft economic analysis 
(DEA) is inconsistent with previous economic analyses for Atriplex 
coronata var. notatior and Navarretia fossalis, which provided little 
economic analysis of the loss of potentially developable acreage and 
instead emphasized administrative costs and impacts to public works 
projects. The commenter further states that the Service should develop 
consistent procedures for preparing economic analyses so that results 
between species are comparable, especially for areas such as the San 
Jacinto River, where occupied habitat for all three of these species 
overlap.
    Our Response: Every economic analysis of proposed critical habitat 
rulemakings is undertaken following the same framework, described in 
pages 1-1 through 1-11 of the DEA. The reports focus on the economic 
activities identified in the proposed rule as likely to threaten the 
habitat and resulting in the greatest impacts. These activities, and 
the associated measures required to minimize impacts, will vary 
depending on the attributes of the habitat and the specific species. 
Urban development is identified in the proposed rule as a threat to 
Brodiaea filifolia throughout much of the proposed critical habitat. As 
discussed in paragraphs 91 to 95 of the DEA, off-setting compensation 
for impacts to B. filifolia in essential habitat areas is based upon 
mitigation requirements for the plant contained within HCPs prepared 
pursuant to the NCCP Act of 2001 in California. These plans primarily 
require avoidance or call for conservation of the occurrences 
encompassed within the essential habitat areas identified in the 
proposed rule. This is in contrast to potential mitigation for Atriplex 
coronata var. notatior and Navarretia fossalis, for which developers 
are able to mitigate off-site and continue with planned projects.
    (50) Comment: One commenter states that the DEA fails to address 
the greatest capital expenditure in western Riverside County, because 
it does not include the costs required to purchase and maintain 
reserves for the species. The comment further states that costs of 
restoring current habitat that could be lost to land-altering 
activities on private lands should also be included.
    Our Response: The Western Riverside County MSHCP is a 
comprehensive, multi-jurisdiction HCP for conservation of species and 
their habitats in Western Riverside County. Under the Plan, we will 
grant take authorization under Section 10(a)(1)(B) of the Act for 
otherwise lawful activities such as private development that may 
incidentally take or harm listed wildlife species in exchange for 
assembly and management of an MSHCP Conservation Area. The MSHCP 
Conservation Area will be formed through a variety of methods, 
including inclusion of existing conservation banks and/or mitigation 
areas, establishment of new conservation banks and/or mitigation areas, 
incentives provided to private landowners to voluntarily convey their 
property for conservation, purchase of lands through the Local 
Development Mitigation Fee paid by project applicants seeking coverage, 
or direct purchase of land by the project proponent as an in-lieu 
payment. As stated in paragraph 94, based in part on the requirements 
of the MSHCP, the analysis assumes that 95 percent of Brodiaea 
filifolia habitat in areas susceptible to development activity are 
preserved. The costs of preserving these areas, along with the costs of 
relocating the plant, salvaging bulbs, and maintaining and monitoring 
populations for the remaining five percent of affected development, is 
captured in the analysis.
    (51) Comment: One commenter questions the use of the IMPLAN model, 
given the DEA's caveat that the model overstates the long-term impacts 
of regulatory change.

[[Page 73830]]

    Our Response: Input-output models are discussed as an example of 
one tool commonly used by economists to estimate regional impacts. 
However, this particular tool is not used in this analysis. Instead, 
the DEA relies on a partial equilibrium model to estimate regional 
effects.
    (52) Comment: One commenter states that Exhibit ES-2 in the DEA 
should provide administrative costs as a separate line item.
    Our Response: Exhibit ES-2 provides information to the reader 
concerning key impacts of the designation, including activities that 
may be most impacted by Brodiaea filifolia conservation efforts. 
Administrative costs are included in the cost estimates for each 
activity presented, rather than reported separately, because they 
represent only 2 percent of upper-bound total costs estimated for 
proposed critical habitat. In present value terms assuming a 7-percent 
discount rate, these administrative costs are approximately $272,000; 
assuming a 3-percent discount rate, administrative costs total 
$298,000.
    (53) Comment: Several commenters question the DEA's inclusion of 
units/subunits 1b, 2, 4d, 4e, 8b, 8e, 10, EH-1, EH-2, EH-3, and EH-7 
(as listed in the DEA) in the development analysis. The comments state 
that development-related impacts in these units are unlikely, because 
either these units have already been developed or they are permanently 
preserved open space.
    Our Response: The DEA utilized the best available information 
locating developable land within areas containing features essential to 
the conservation of Brodiaea filifolia. This information includes a 
geographic information systems (GIS) layer from the San Diego 
Association of Governments (SANDAG) locating developable land within 
essential habitat units in San Diego County, and a GIS layer from the 
Southern California Association of Governments (SCAG) locating vacant 
land within essential habitat units in Los Angeles, San Bernardino, 
Orange, and Riverside Counties. Because the SANDAG and SCAG data are 
updated only every few years, it is possible that information for 
certain parcels is no longer current. Accordingly, the Service 
appreciates the new information provided during the public comment 
period that allows for a refinement of the DEA. Based on this 
information, the calculation of development impacts was revised to 
remove all of the units listed above, with the exception of subunit 1b. 
Subsequent research has shown that the subunit is privately owned, not 
developed, and the plants are not currently located in a preserve. Note 
that all of the above referenced areas, except subunit 1b, have been 
removed or excluded from the final designation.
    (54) Comment: One commenter states that the methodology should be 
refined so that the bias of overstatement in the analysis can be 
eliminated.
    Our Response: The potential impacts of Brodiaea filifolia 
conservation activities on development within essential habitat are a 
function of the distribution of the plant within the unit, the ability 
of the developer or landowner to modify projects to avoid each 
locality, and the existence of alternative uses of the property that do 
not threaten the plant, all of which are unknown. The DEA uses the best 
available information to quantify potential impacts in light of the 
uncertainty associated with these factors.
    (55) Comment: Two commenters state that there should be no 
additional costs associated with designating critical habitat in areas 
covered by approved HCPs. In particular, one comment states that many 
of the Federal Information Processing Standard (FIPS) places discussed 
in Exhibit 3-11 are included within approved HCPs and should be deleted 
from the analysis.
    Our Response: We recognize that many of the FIPS listed in Exhibit 
3-11 are located within approved or pending HCP jurisdictions and that 
these plans may require protection of Brodiaea filifolia habitat. 
However, as stated in the DEA, costs incurred due to conservation 
activities and other protective measures carried out by other Federal 
agencies, State and local governments, and other parties are considered 
co-extensive with the protection offered by critical habitat. Inclusion 
of co-extensive impacts in the economic analysis complies with 
direction from the U.S. Tenth Circuit Court of Appeals.
    (56) Comment: One commenter states that the DEA should estimate 
costs associated with the potential loss of redevelopment increment 
funds in the City of San Marcos, because a majority of land in the 
proposed critical habitat within the City occurs in an adopted 
Redevelopment Project Area.
    Our Response: Based on recent conversations with the City of San 
Marcos, we agree that redevelopment increment funds may be impacted if 
property construction is reduced in areas where funds would have been 
collected by San Diego County and allocated to the City. However, the 
city representatives were not able to provide information about the 
potential magnitude of the impact.
    (57) Comment: One commenter states that the DEA should factor in 
costs of the proposed designation to infrastructure assessment 
districts in the City of San Marcos.
    Our Response: We agree that impacts associated with reduced or 
delayed development in infrastructure assessment districts within the 
City of San Marcos are a possibility. Infrastructure assessment 
districts include Community Facilities Districts or Special Assessment 
Districts that levy additional taxes on properties within the district 
to finance the construction of public facilities. The additional tax 
for each included property may be based on a variety of factors such as 
lot size and benefit received by the property. Therefore, Brodiaea 
filifolia conservation activities may reduce taxes received by a 
particular district where new property construction that would occur 
absent the designation does not occur. However, an estimate of the 
degree of this reduction would require information on the type and 
value of future development at a parcel-specific level. This 
information is currently unknown.
    Because the tax is used by the City to make payments on bonds 
issued to finance construction of public facilities, Brodiaea filifolia 
conservation activities may also impact the City, developers, and 
bondholders where development projects associated with special 
assessments are halted after bond issuance, leading to property 
indebtedness in which the developer is unable to finance its portion of 
the project and/or the City is unable to make payments to bondholders. 
The potential for B. filifolia conservation activities to render the 
developer and/or the City unable to meet its financial obligations is a 
function of currently unknown variables such as the location of B. 
filifolia on the project site, project specifications, and the 
financial status of the developer and/or the City.
    (58) Comment: One commenter states that the development analysis is 
inaccurate, because it uses residential land values even though a 
number of the proposed critical habitat units in the City of San Marcos 
are zoned for non-residential uses. Specifically, the commenter states 
that the DEA does not factor in values of parcels that are zoned for 
industrial use in subunits 8c, 8d, and 8e. It also questions the 
appropriateness of the impact scenarios based on ``supply of housing'' 
and ``home prices'' in these areas. Another comment states that the 
per-acre land values estimated in the DEA and presented in Exhibit 3-7 
appear low.

[[Page 73831]]

    Our Response: The first scenario analyzed in the DEA captures 
potential losses to owners of developable parcels zoned for non-
residential uses. This scenario assumes that in areas that must be 
avoided, or set-aside, from future development, the market value of 
those acres is lost. The market value of raw land implicitly 
incorporates all potential future uses of the property, be it 
residential, commercial, industrial, or otherwise. Thus, the loss in 
land value captures the lost value of future use of the property. The 
sample of property values used in this analysis includes a mix of 
properties zoned for residential and non-residential uses and therefore 
is reasonably representative of losses on average.
    Market values used in the DEA are drawn from a data set of raw land 
values obtained from the San Diego County assessor for parcels located 
within areas containing features essential to the conservation of 
Brodiaea filifolia. Based on conversations with the assessor, to ensure 
that assessed values of raw land were consistent with market values, 
the DEA uses a sample from this dataset including only parcels sold and 
assessed in 2004. This sample includes parcels zoned for industrial use 
in subunit 8d. Considering public comment, an adjustment is made to the 
final analysis. In the DEA, the per-acre land value was calculated as a 
weighted average across the sample of parcels. This approach may 
understate per-acre values due to the presence of several parcels of 
relatively low value and high acreage in the sample. The economic 
analysis was revised, calculating a per-acre value based on the average 
of the per-acre values implied by each parcel, and by eliminating an 
outlying parcel from the sample. This revision results in a per-acre 
average land value for parcels in San Diego County of $69,000.
    We note that the second scenario estimated in the DEA (paragraphs 
100 through 109), which measures consumer welfare losses associated 
with higher home prices, does not consider the impact of shifts in 
prices of commercial or industrial facilities. Analysis under the 
second scenario relies on an existing economic model estimating the 
shift in quantity of housing supplied as a result of critical habitat. 
No such model exists for non-residential development, therefore we are 
unable to estimate welfare losses in markets for commercial or 
industrial properties at this time.
    (59) Comment: One commenter states that the DEA contains a 
misreading of the San Diego County MHCP standards as summarized in 
Exhibit 3-6. According to the comment, inclusion in a soft-line area by 
and of itself does not dictate the high conservation standards of 95 
percent provided in Exhibit 3-6 unless that population is also deemed 
to be critical by the MHCP. The comment notes that Brodiaea filifolia 
occurrences in the City of Carlsbad are located in a Major Amendment 
Area and not in a soft- or hard-line area. Another comment states that 
the DEA overlooks the relative importance of each of the B. filifolia 
localities and how this could affect compensation within conservation 
plans for the species.
    Our Response: Information on conservation measures for Brodiaea 
filifolia contained in the MHCP relies on personal communication with 
the County, as noted in Exhibit 3-6. The sample of conservation 
requirements reviewed in this exhibit represent the best available 
information regarding uncertain future conservation requirements in 
areas, both within these plans and outside the boundaries. As discussed 
in paragraph 94, the analysis assumes that the highest level of 
conservation for B. filifolia provided across the approved plans will 
apply to future development projects. Given the uncertainty regarding 
the location of plants, the significance of particular populations, and 
the configuration of specific development projects, this assumption may 
overstate impacts for specific projects.
    (60) Comment: One commenter questions the disparity between costs 
for particular units. The commenter states that subunit 8d is in the 
center of the City of San Marcos while the Miller Mountain unit 
(subunit 5a) is on private and Forest Service land within the San Mateo 
Wilderness. For this reason, the commenter questions why the estimated 
costs for subunit 8d are low, relative to the estimated costs for the 
Miller Mountain property.
    Our Response: The relative costs to development activities assigned 
to each unit are a function of the land value losses calculated in the 
first scenario and the impacts to the housing market calculated in the 
second scenario. In the first scenario, costs are driven by the 
quantity of private, developable land within the unit that is projected 
to be developed in the next 20 years. As shown in Exhibit 3-8, proposed 
subunit 8d contains 18.64 acres of projected development on private, 
developable acres while subunit 5a contains 21.36 acres; therefore, 
impacts under this scenario are greater for subunit 5a.
    In the second scenario, impact estimates are driven by the overall 
amount of new housing anticipated in the FIPS place closest to the unit 
and median home values in that FIPS place (FIPS places generally follow 
the legal boundaries of incorporated cities). The DEA assigned subunit 
5a to the closest FIPS place, San Clemente and subunit 8d to San 
Marcos. The disparity in impacts estimated in this scenario results 
from difference in the median home price and projected number of future 
houses in the two cities. However, based on public comment and further 
reflection, a new assumption is applied to this scenario.
    Some areas of essential habitat, such as subunit 5a, fall outside 
the boundaries of the 10 FIPS places included in the DEA. Several of 
these units fall within 3 miles of the nearest FIPS place and thus are 
assigned to that place. Five remaining units, including subunit 5a, are 
10 or more miles from the nearest FIPS place. Zabel and Paterson's 
model, described in paragraph 101 and used to estimate market impacts, 
represents the best available tool for estimating impacts to the 
housing market resulting from critical habitat designation. However, 
this tool is not capable of assigning costs to these five units. 
Considering their more remote nature, as demonstrated by their distance 
from densely populated areas, designation is less likely to result in 
substantial impacts relevant to the housing market. Because the 
potential magnitude of market effects is unknown for these five areas, 
no consumer welfare losses are reported for these areas in the final 
economic analysis.
    (61) Comment: One commenter states that the development analysis 
should evaluate a scenario of higher density development along with the 
benefits of adjacent open space conservation.
    Our Response: The DEA analyzes two scenarios, as described in 
paragraphs 80 through 109. The first scenario assumes that no future 
housing stock is lost due to Brodiaea filifolia conservation 
activities, because substitute sites are available. The second scenario 
assumes that some future housing stock is lost (e.g., not constructed 
at other sites). Adding a third scenario of higher density development, 
as suggested by the comment, would result in an impact estimate similar 
to the estimate in the first scenario, and no larger than estimated in 
the second. Higher density development represents a substitution option 
similar to the availability of non-critical habitat developable land. 
It assumes that the same number of homes are built, but simply on a 
smaller footprint. In addition, such a scenario might require the 
assumption that existing zoning-related restrictions will be lifted to 
accommodate the higher density development. We have no

[[Page 73832]]

information to suggest such a change in existing regulation will occur.
    If higher density development results from Brodiaea filifolia 
conservation activities, additional open space may be preserved. 
Various studies document the positive effect of environmental 
amenities, including open space, on the value of nearby residential and 
commercial properties (e.g., Thibodeau and Ostro (1981), Nelson (1985), 
Lacy (1990), Garrod and Willis (1992), Bockstael (1996), Geoghegan 
(1998), Acharya and Bennet (2001)). The enhancement of real estate 
values depends on, among other things, the proximity of homes to open 
space and the spatial extent of the effect (only the homes immediately 
adjacent to the space are affected, the entire neighborhood is 
affected, or the entire town or region is affected), whether the effect 
decreases with distance from the open space and at what rate, whether 
the community already contains a significant supply of conserved land, 
and the relationship between local development pressure and values for 
conserved open space (e.g., if open space is scarce, and development 
pressure high, the combination could affect the magnitude of the 
benefit).
    To make a defensible transfer of ``open space value'' as identified 
in the literature to a community or neighborhood impacted by Brodiaea 
filifolia conservation activities, additional data are required. For 
example, information on the extent of existing open space in the 
affected communities and the additional amount likely to be conserved 
as a result of B. filifolia conservation activities must be compared to 
similar statistics for the communities assessed in the economics 
literature. In addition, the transfer requires an assessment of the 
similarities in the quality and attributes of the land to be conserved 
with the qualities and attributes of the land studied in the 
literature. The models and data required to complete this transfer are 
not readily available for B. filifolia habitat. As a result, the DEA is 
unable to estimate the potential benefits of open space conservation.
    (62) Comment: One commenter questions the cost allocation across 
units in Exhibit 3-3. The comment states that, given that the preceding 
exhibit (Exhibit 3-2) contains only four subunits that have had a 
formal or informal consultation, it is questionable as to why the rest 
of the subunits are included if they have never been consulted on.
    Our Response: Exhibit 3-3 does not include units where no 
consultation has taken place. Exhibit 3-2 presents a summary of 
consultations for development projects that occurred in areas 
containing features essential to the conservation of the species in the 
proposed rule, but it does not reflect consultations or project 
modifications that have occurred for HCPs. Exhibit 3-3, on the other 
hand, presents the past costs of these development consultations 
(administrative and project modification costs) in addition to 
administrative costs of the development of HCPs that have jurisdiction 
over essential habitat areas. Footnote 45 notes that these HCPs are the 
County of San Diego Subarea Plan under the Multiple Species 
Conservation Program (MSCP) in March 1998, the Western Riverside County 
MSHCP in June 2004, and the City of Carlsbad's Habitat Management Plan 
(HMP) under the MHCP in November 2004. As stated in the note (a) to 
Exhibit 3.3, the analysis distributes the HCP costs evenly across the 
units covered by the plans.
    (63) Comment: One commenter asks whether costs in Exhibit 3-2 are 
attributed solely to Brodiaea filifolia or whether other listed species 
benefited from the consultations and mitigation activities.
    Our Response: Exhibit 3-2 summarizes four consultations for 
development projects that have occurred in areas containing features 
essential to the conservation of Brodiaea filifolia in the proposed 
rule. These consultations covered other species in addition to B. 
filifolia. The consultations covering subunits 6c and 8b also 
considered the coastal California gnatcatcher, as noted in Exhibit 3-2. 
The consultations covering subunit 7a note that other federally 
threatened and State species of special concern occur onsite, such as 
the coastal California gnatcatcher, northern harrier, Cooper's hawk, 
white-tailed kite, and California adolphia; however, the consultations 
were primarily focused on impacts to B. filifolia. For all of the 
consultations, project modification costs described in the table were 
driven by efforts to protect B. filifolia and, therefore, are 
attributed to this species.
    (64) Comment: One commenter states that, typically, the developer 
will pass any increase in project cost to the ultimate consumer of the 
development (homeowner, business owner, building owner), not to the raw 
landowner. It is the experience of the commenter that developers simply 
recognize the cost of building constraints, work with them and build 
them into the ultimate cost of the product.
    Our Response: The assumption referred to in this comment is derived 
from the first development scenario analyzed in paragraphs 84 and 87 
through 99 of the DEA. This scenario assumes that within regional 
housing markets, substitute land exists for development that would 
otherwise occur within essential habitat. Projected development shifts 
to less preferred sites (e.g., areas that were previously farther out 
in time on the development horizon or that were not anticipated to be 
developed within the next 20 years). This assumption may be reasonable 
for the proposed designation, because the potentially affected acres 
represent a small percentage of the total developable land in the 
municipalities where they are located. Accordingly, existing landowners 
whose land would otherwise be higher in the hierarchy of potentially 
developable sites must accept lower prices associated with Brodiaea 
filifolia conservation activities if development is to occur. This 
assumption is consistent with peer review by three economists of 
previous economic analyses of proposed critical habitat in California. 
Note that the second development scenario (described in paragraphs 100 
through 109) makes the alternative assumption that land is scarce. 
Under this scenario, homebuyers experience costs associated with B. 
filifolia conservation activities.
    (65) Comment: One commenter states that Exhibit 5-3 is flawed 
because not every unit contains a transportation issue. The commenter 
requests that a more realistic transportation scenario be evaluated 
based on specific subunits. Another commenter states that the 
transportation impacts analysis is incomplete, because the Service did 
not contact the Riverside County Transportation Commission or the local 
cities to identify transportation projects in areas containing features 
essential to the conservation of Brodiaea filifolia.
    Our Response: We acknowledge that simplifying assumptions were made 
in the DEA to bound the potential magnitude of transportation-related 
impacts. During development of the DEA, the relevant district offices 
of California Department of Transportation (CALTRANS), which has 
responsibility for transportation-related projects in California, were 
contacted (see paragraphs 126 through 130). CALTRANS represents the 
best publicly available source of State transportation projects. The 
offices were unable to provide site-specific information about the 
potential location of future Brodiaea filifolia conservation 
activities. Therefore, the DEA used a historical rate of consultation, 
plus information about the project modifications associated with those 
consultations, to predict

[[Page 73833]]

future transportation costs. These impacts were assumed to be equally 
likely to occur in any unit (excluding lands on Camp Pendleton), 
resulting in an even distribution of costs shown in Exhibit 5-3. Note 
that, based on new information received during the public comment 
period, transportation-related impacts are removed from units where B. 
filifolia is not present, the land is already preserved, the land is 
already developed, or a plan is already in place to move the plants to 
another location. These units include units/subunits described in the 
DEA as 2, 4a, 4d, 4e, 8b, 8e, 10, EH-1, EH-2, EH-3, and EH-7.
    Based on this comment, the Riverside County Transportation 
Commission was contacted, and information about potential impacts 
associated with the Highway 79 re-alignment project and the Mid-County 
Parkway was requested. At this time, due to the sensitive nature of the 
projects and their early stages, a representative of the commission was 
unable to provide specific information about whether habitat for 
Brodiaea filifolia would be impacted. However, he noted that if B. 
filifolia habitat is identified, project modifications would likely be 
similar to conservation requirements found in the Western Riverside 
County MSHCP. In areas containing features essential to the 
conservation of the plant, information from cities about potential 
transportation-related impacts is not readily available at this time.
    (66) Comment: One commenter states that the DEA ignores the costs 
associated with designing, refining, and negotiating a preferred 
alternative to avoid Brodiaea filifolia in the Foothill-South Corridor. 
The commenter also states that the DEA ignores mitigation measures 
specially designed to address potential B. filifolia impacts, such as 
focused plant surveys, seed collection and salvage measures, soils 
collection and translocation, and translocation monitoring. Finally the 
commenter states that the DEA also ignores delay costs.
    Our Response: As discussed in paragraphs 123 through 125, the DEA 
considered impacts to the Foothill-South project. At that time, the 
best information available suggested that the preferred alternative 
would completely avoid Brodiaea filifolia habitat. However, new 
information has since been provided by the Transportation Corridor 
Agencies (TCA), the organization responsible for this project. 
Specifically, TCA stated that three populations will be affected by the 
project and provided information about past costs, future mitigation 
costs, and potential delay costs. These costs were incorporated in the 
final economic analysis. The three units where B. filifolia populations 
are anticipated to be affected by the Foothills-South project are 
subunits 4c, 4f, and 4h. All three of these units are excluded from the 
final designation.
    (67) Comment: One commenter states that Exhibit 5-4 of the DEA may 
be flawed, because not every unit contains a utility corridor. The 
commenter requests that a more comprehensive subunit evaluation of 
potential impacts to utility projects be conducted.
    Our Response: We acknowledge that simplifying assumptions are made 
in Section 5.2 in order to bound the analysis of impacts to utility 
activities. A rapid assessment of transmission lines and distribution 
systems operated by San Diego Gas and Electric was conducted in order 
to extrapolate potential impacts across San Diego and Orange counties. 
Therefore, actual future costs to utility activities may be higher or 
lower in certain units presented in Exhibit 5-4. However, the costs 
presented in the final economic analysis represent the best available 
information at this time. Also note that, based on new information 
received during the public comment period, utility-related impacts are 
removed from units where Brodiaea filifolia is not present, the land is 
already preserved, the land is already developed, or a plan is already 
in place to move the plants to another location. These units include 2, 
4a, 4d, 4e, 8b, 8e, 10, EH-1, EH-2, EH-3, and EH-7.
    (68) Comment: One commenter states that the DEA should consider the 
proposed Special Area Management Plan (SAMP) for the San Jacinto 
watershed and potential economic impacts of the critical habitat 
designation within the watershed.
    Our Response: The ACOE is currently conducting a comprehensive 
aquatic resource plan, called a SAMP, for the San Jacinto watershed. 
The purpose of the SAMP is to establish a watershed-wide aquatic 
resource reserve program, and to minimize individual and cumulative 
impacts of future projects in this watershed. The SAMP will result in 
the issuance of programmatic and individual permits issued under 
section 404 of the Clean Water Act. Because the sensitive areas 
identified by the SAMP are likely to overlap critical habitat, the SAMP 
will not provide significant new information about the sensitivity of 
these acres. In addition, because the DEA assumes that 95 percent of 
habitat for Brodiaea filifolia that is likely to be developed in the 
next 20 years will be avoided (see paragraph 94), it is unlikely that 
more burdensome actions will be required by the ACOE as a result of the 
SAMP. Therefore, the cost estimates calculated in the DEA are unlikely 
to be affected by the SAMP.
    (69) Comment: One commenter states that the DEA should offer some 
cost estimates of the proposed flood control project discussed at 
paragraph 139.
    Our Response: Section 5.3 of the DEA considers impacts to flood 
control activities in areas containing habitat for Brodiaea filifolia 
proposed for critical habitat designation. The best available data were 
utilized at the time to estimate these potential impacts. While we 
agree that B. filifolia-related conservation costs are likely, no 
additional information has become available since the drafting of the 
DEA that would allow us to quantify or monetize these impacts. The 
units potentially affected, EH5, EH6, and EH7, are excluded from the 
final designation.
    (70) Comment: One commenter offered the following clarification to 
page 2-17, section 2.5, paragraph 71: ``It is incorrect to assume that 
CEQA requires a lead agency to `presume that a project will result in a 
potentially adverse environmental impact and to prepare an EIR* * *.' 
Rather, CEQA requires that a project's impacts be disclosed, and those 
disclosed impacts mitigated to a point beneath a level of significance. 
If the project is unable to do so, then an EIR is required when 
determined by the lead agency. A predisposition towards EIR preparation 
regardless of threshold determination is counter to CEQA precedence.''
    Our Response: We have incorporated this clarification into the 
final economic analysis.
    (71) Comment: One commenter offered the following clarification to 
page 2-17, section 2.5, paragraph 73: ``Please note that the Service is 
an integral participant in the NCCP process. Witness that all letters 
to participating municipalities are signed by both the CDFG and the 
Service.''
    Our Response: We appreciate the clarification and have incorporated 
it into the final economic analysis.
    (72) Comment: One commenter noted that Exhibit 6-2 appears to 
project costs to conservancies from 2006-2024, but it is not clearly 
stated in the table or text.
    Our Response: We have clarified this in the final economic 
analysis.

Summary of Changes From Proposed Rule

    In developing the final critical habitat designation for Brodiaea 
filifolia, we reviewed peer and public comments received on our 
proposed rule and draft economic analysis; conducted further

[[Page 73834]]

evaluation of lands included in our proposal; and refined our mapping 
boundaries. This final rule reflects refinements of our mapping 
process, and removal of areas from critical habitat designation under 
section 3(5)(A), exemption under section 4(a)(3), and exclusions under 
section 4(b)(2) of the Act.
    We refined our mapping to better delineate habitat containing 
features essential to the conservation of the species. For example, we 
found that there were areas within the boundaries of proposed critical 
habitat that did not contain the physical or biological features 
essential to the conservation of Brodiaea filifolia such as roads and 
buildings. In most cases developed areas were captured in the proposed 
critical habitat boundaries because we used a 328 ft (110 m) minimum 
grid cell size. When preparing this final designation, we identified 
areas where the majority of a grid cell included developed areas, then 
removed these particular cells from the boundaries of critical habitat. 
These refinements reduced the amount of land in subunit 6d (Taylor/
Darwin) and subunit 8d (Upham) (Table 1) that contain features 
essential to the conservation of the species.
    Along with refining our mapping, we re-evaluated the occurrences of 
Brodiaea filifolia included in proposed critical habitat. Criteria used 
to determine if an occurrence is significant included: occupied habitat 
supporting a minimum of 850 naturally occurring individuals of B. 
filifolia and/or populations associated with unique habitats (e.g. 
soils, vegetation, or elevation) or peripheral populations important 
for protecting genetic variability across the species' range.
    Based on our review and re-evaluation, a total of 12 units/subunits 
were removed from consideration because we determined they were not 
significant occurrences (see ``Criteria Used to Identify Critical 
Habitat''). Units/subunits removed from consideration because we 
determined they did not support significant occurrences of Brodiaea 
filifolia include: Unit 3 (Aliso Canyon), 4a (Arroyo Trabuco), 4d 
(Prima Deschecha), 4e (Forster Ranch), 4f (Talega/Segunda Deschecha), 
4h (Christianitos Canyon South), 4i (Blind Canyon), 6a (Alta Creek), 6c 
(Oceanside/Mission Avenue), 7b (Rancho Carrillo), 8a (Rancho Santa Fe 
Road North), and 8c (Grand Avenue).
    Unit 2 (Arrowhead Hot Springs Unit) was removed from the final 
designation because it was incorrectly mapped. Although the proposed 
rule correctly describes the Arrowhead Hot Springs unit in the text, 
the map provided in the proposed rule depicted an area known as 
Waterman Canyon.
    Subunits 8e (Linda Vista), 9 (Double LL Ranch), and 10 (Highland 
Valley) were removed from consideration because we could not verify 
reported occurrences of Brodiaea filifolia.
    We removed subunit 5a (Miller Mountain) from consideration because 
the plants in this area are mostly hybrids between Brodiaea filifolia 
and Brodiaea orcuttii (Boyd et al. 1992). No information is available 
regarding the number of pure B. filifolia within this occurrence and 
whether they can be considered as contributors to the long-term 
conservation of the species.
    We removed a portion of lands in subunit 5b (Devil Canyon) from 
consideration because the area is not known to be occupied by Brodiaea 
filifolia.
    We removed subunit 8b (Rancho Santalina/Loma Alta) from 
consideration under section 3(5)(A) of the Act because it is already 
receiving special management considerations (see the ``Application of 
Section 3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under 
Section 4(b)(2) of the Act'').
    We removed 205 ac (83 ha) of land in Riverside County identified in 
the proposed rule as containing features essential to the conservation 
of the species, but which were excluded under section 4(b)(2) of the 
Act. The lands removed were near Corona and in Moreno Valley. We 
removed these areas because they are not known to be occupied by 
Brodiaea filifolia. Approximately 3,062 ac (1,234 ha) of land in 
Riverside County containing features essential to the conservation of 
B. filifolia are excluded under section 4(b)(2) of the Act.
    Six units/subunits are being excluded under section 4(b)(2) of the 
Act. Three subunits, including 4b (Casper's Park), 4c (Canada/
Gobernadora), and 4g (Christianitos Canyon) are within the boundaries 
of the pending Orange County Southern Subregion NCCP/HCP, which 
includes the participation of the County of Orange and Rancho Mission 
Viejo, both of which are parties to a Settlement Agreement for the 
Ranch Plan. Subunits 6b (Mesa Drive) and 6d (Taylor/Darwin) are within 
the boundaries of the pending City of Oceanside Subarea Plan of the 
Northwestern San Diego County MHCP. Subunit 7a (Fox-Miller) is covered 
under the City of Carlsbad's approved HMP.
    In this final rule, lands on Camp Pendleton that were excluded from 
proposed critical habitat under section 4(b)(2) of the Act are now 
exempt pursuant to section 4(a)(3) of the Act.
    For more discussion about the areas exempted or excluded from this 
final designation, please refer to the section ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act.''
    Overall, these refinements, removals, exemptions and exclusions 
resulted in a reduction from 4,690 ac (1,898 ha) included in the 
proposed designation to 597 ac (242 ha) included in the final 
designation (see Table 1 below).

--------------------------------------------------------------------------------------------------------------------------------------------------------
     Critical habitat unit/subunit                     County                   Proposed critical habitat (ac; ha)      Final critical habitat (ac; ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1: Los Angeles County............  Los Angeles........................  Total 294; 119.........................  Total 294; 119
    1a: Glendora......................  ...................................  96; 39.................................  96; 39
    1b: San Dimas.....................  ...................................  198; 80................................  198; 80
Unit 2: Arrowhead Hot Springs.........  San Bernardino.....................  89; 36.................................  0
Unit 3: Aliso Canyon..................  ...................................  151; 61................................  0
Unit 4: Orange County.................  Orange.............................  Total 1,860; 753.......................  Total 0
    4a: Arroyo Trabuco................  ...................................  74; 30.................................  0
    4b: Casper's Wilderness Park......  ...................................  259; 105...............................  0
    4c: Canada Gobernadora/Chiquita     ...................................  311; 126...............................  0
     Ridgeline.
    4d: Prima Deschecha...............  ...................................  119; 48................................  0
    4e: Forster Ranch.................  ...................................  96; 39.................................  0
    4f: Talega/Segunda Deshecha.......  ...................................  190; 77................................  0
    4g: Cristianitos Canyon...........  ...................................  588; 238...............................  0
    4h: Cristianitos Canyon South.....  ...................................  72; 29.................................  0
    4i: Blind Canyon..................  ...................................  151; 61................................  0

[[Page 73835]]

 
Unit 5: Northern San Diego County.....  San Diego..........................  Total 1,527; 618.......................  Total 249; 101
    5a: Miller Mountain...............  ...................................  1,263; 511.............................  0
    5b: Devil Canyon..................  ...................................  264; 107...............................  249; 101
Unit 6: Oceanside.....................  ...................................  Total 198; 81..........................  Total 0
    6a: Alta Creek....................  ...................................  49; 20.................................  0
    6b: Mesa Drive....................  ...................................  5; 2...................................  0
    6c: Oceanside East/Mission Avenue.  ...................................  64; 26.................................  0
    6d: Taylor/Darwin.................  ...................................  80; 32.................................  0
Unit 7................................  ...................................  Total 125; 50..........................  Total 0
    7a: Fox-Miller....................  ...................................  93; 38.................................  0
    7b: Rancho Carrillo...............  ...................................  32; 13.................................  0
Unit 8: San Marcos....................  ...................................  Total 315; 127.........................  Total 54; 22
    8a: Rancho Santa Fe Road North....  ...................................  86; 35.................................  0
    8b: Rancho Santalina/Loma Alta....  ...................................  82; 33.................................  0
    8c: Grand Avenue..................  ...................................  10; 4..................................  0
    8d: Upham.........................  ...................................  117; 47................................  54; 22
    8e: Linda Vista...................  ...................................  20; 8..................................  0
Unit 9: Double LL Ranch...............  ...................................  57; 23.................................  0
Unit 10: Highland Valley..............  ...................................  74; 30.................................  0
 
        Total.........................  ...................................  4,690; 1,898...........................  597; 242
--------------------------------------------------------------------------------------------------------------------------------------------------------

Critical Habitat

    Critical habitat is defined in section 3 of the Act as--(i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that may 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 must 
contain the physical and biological features essential to the 
conservation of the species. Critical habitat designations identify, to 
the extent known using the best scientific data available, areas that 
provide for the essential life cycle needs of a species (i.e., areas on 
which are found the primary constituent elements, as defined at 50 CFR 
424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may require special 
management or protection. Thus, we do not include areas where existing 
management is sufficient to conserve the species. (As discussed below, 
such areas may also be excluded from critical habitat pursuant to 
section 4(b)(2).) Accordingly, when the best available scientific data 
do not demonstrate that the conservation needs of the species require 
additional areas, we will not designate critical habitat in areas 
outside the geographical 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, but not always, be 
essential to the conservation of the species and, therefore, typically 
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 and commercial data available. They require Service 
biologists to the extent consistent with the Act and with the use of 
the best scientific and commercial data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat. When determining which areas are critical 
habitat, a primary source of information is 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.
    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

[[Page 73836]]

action. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans, or other species 
conservation planning efforts if new information available to these 
planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we used the best 
scientific data available in determining areas that are essential to 
the conservation of Brodiaea filifolia. We used data and information 
contained in, but not limited to, the proposed listing rule (59 FR 
64812, December 15, 1994); the final listing rule (63 FR 54975, October 
13, 1998); data and information from research and survey observations 
in published, peer-reviewed articles; data provided by the California 
Department of Fish and Game (CDFG); and data provided by the California 
Natural Diversity Database (CNDDB); data and information included in 
reports submitted during section 7 consultations; information contained 
in species analyses for individual and regional HCPs where B. filifolia 
is a covered species or is being proposed for coverage; data collected 
on Camp Pendleton; data collected from reports submitted by researchers 
holding section 10(a)(1)(A) recovery permits; and information received 
from local species experts. We also used information contained in 
comments received during the comment periods for the proposed rule and 
the draft economic analysis.
    We are not designating areas outside the geographical areas known 
to be occupied by the species and identified in the final listing rule 
(63 FR 54975). The listing rule noted that populations were centered in 
the cities of Vista, San Marcos, and Carlsbad in San Diego County, in 
the vicinity of the Santa Rosa Plateau in Riverside County, with 
additional ``scattered'' populations in Orange, Los Angeles, Riverside, 
San Bernardino, and San Diego counties. Critical habitat is not being 
designated in San Bernardino, Orange and Riverside counties. Areas in 
Los Angeles and San Diego counties designated as critical habitat and 
listed in Table 1 are within the geographical areas known to be 
occupied by the species.
    Habitat that contains the features essential to the conservation of 
the species was delineated by examining (1) species occurrence 
information in Los Angeles, San Bernardino, Orange, Riverside, and San 
Diego counties from the CNDDB and from survey reports; (2) vegetation 
data layers from Orange, Riverside, and San Diego counties and 
vegetation data layers from the U.S. Forest Service's Cleveland 
National Forest for Los Angeles and San Bernardino counties; (3) 
Natural Resources Conservation Service's Soil Survey Geographic 
Database (SSURGO) soil data layers for Orange, Riverside, and San Diego 
counties, and State Soil Geographic Database (STATSGO) soil data layers 
for Los Angeles and San Bernardino counties; and (4) slope data derived 
from a 30-meter digital elevation model (DEM). These layers were 
overlaid on digital ortho quarter quadrangle (DOQQ) satellite imagery 
layers, and habitat was delineated in areas that had an extant species 
occurrence within them, had not undergone development, had the PCEs, 
including suitable soil and vegetation types, and had a slope of less 
than 20 degrees. After creating a GIS coverage of the essential areas, 
we created legal descriptions of these areas. We used a 100-meter grid 
to establish Universal Transverse Mercator (UTM), North American Datum 
(NAD) 27 coordinates which, when connected, provided the boundaries of 
the areas containing features essential to the conservation of the 
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 propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features, otherwise referred to as primary 
constituent elements (PCEs), essential to the conservation of the 
species, and that may require special management considerations or 
protection. These include, but are not limited to: Space for individual 
and population growth and for normal behavior; food, water, air, light, 
minerals, or other nutritional or physiological requirements; cover or 
shelter; sites for breeding, reproduction, rearing of offspring, 
germination, seed dispersal; and generally habitats that are protected 
from disturbance or are representative of the historic geographical and 
ecological distributions of a species. The specific PCEs required for 
Brodiaea filifolia \1/2\ are derived from the physical and biological 
needs of the species as described below and in the final listing rule 
(63 FR 54975, October 13, 1998).
    Brodiaea filifolia is a perennial herb in the Liliaceae (lily 
family) that annually produces leaves and flower stalks from 
underground corms (underground bulb-like storage stem). Corms are 
dormant in the summer, but leaves begin growing after the first 
significant rains in the fall saturate the soil. At the time of 
flowering, the leaves of B. filifolia are dead or nearly so. The 
flowering period lasts for two to three weeks in late spring to early 
summer. Young plants produce only leaves for a few seasons before being 
capable of producing flower stalks. Even mature specimens may not 
flower every year, depending upon environmental conditions. It is 
estimated that about 10 percent of all specimens flower in an average 
rainfall year (Vince Scheidt in litt. 2005). The six perianth segments 
are violet, with their tips spreading. The staminodia (characteristic 
sterile stamens) are narrow and pointed.
    All species of Brodiaea are self-incompatible (incapable of 
producing seeds with pollen from flowers on the same plant or from 
flowers on plants with the same allele at the self-incompatibility 
locus), requiring cross-pollination from plants of the same species but 
with different alleles at this locus. Dispersal of seeds from an 
individual is likely localized, leading to patches of plants with the 
same self-incompatible alleles. This means that effective pollination 
for seed set requires pollen dispersal over a distance between plants 
with different self-incompatible alleles. Likewise, this necessitates 
maintenance of pollinator habitat and dispersal corridors. The 
vegetative production of small cormlets by the corm is the principal 
means by which plants of the genus Brodiaea perpetuate themselves 
(Niehaus 1971).
    Members of the genus Brodiaea likely rely on Tumbling Flower 
Beetles (Mordellidae, Coleoptera) and Sweat Bees (Halictidae, 
Hymenoptera) for cross-pollination (Niehaus 1971). The home ranges and 
species fidelity of these pollinators is not known. Bell and Rey (1991) 
report that native bees observed pollinating Brodiaea filifolia on the 
Santa Rosa Plateau in Riverside County included Bombus californicus 
(Apidae, Hymenoptera), Hoplitus sp. (Megachilidae, Hymenoptera), Osmia 
sp. (Megachilidae, Hymenoptera), and an unidentified Anthophorid 
(digger-bee). Anthophoridae and Halictidae are reported to be important 
pollinators of B. filifolia at a study site in Orange County (Glen 
Lukos Assoc. 2004). Alternative pollen source plants may be necessary 
for the persistence of these

[[Page 73837]]

insects when B. filifolia is not in flower seasonally or annually 
because of poor environmental conditions.
    Studies to quantify the distance that bees will fly to pollinate 
their host plants are limited in number, but the few that exist show 
that some bees will routinely fly from 328 to 984 feet (ft) (100 to 500 
meters (m)) to pollinate plants (Thorp and Leong 1995; Schulke and 
Waser 2001). In a study of experimental isolation and pollen dispersal 
of Delphinium nuttallianum (Nuttall's larkspur), Schulke and Waser 
(2001) report that adequate pollen loads were dispersed by bumblebees 
within control populations and in isolated experimental ``populations'' 
from 328 to 1,312 ft (100 m to 400 m) distant from the control 
populations. One of the several pollinator taxa effective at 1,312 ft 
(400 m) was Bombus californicus, one of four bee species observed 
pollinating Brodiaea filifolia by Bell and Rey (1991). Studies by 
Steffan-Dewenter and Tscharntke (2000) have demonstrated that it is 
possible for bees to fly as far as 3,280 ft (1,000 m) to pollinate 
flowers, and at least one study suggests that bumblebees may forage 
many kilometers from a colony (Sudgen 1985).
    The historical range of Brodiaea filifolia extends from the 
foothills of the San Gabriel Mountains in Los Angeles County, east to 
the western foothills of the San Bernardino Mountains in San Bernardino 
County, south through eastern Orange and western Riverside counties to 
central (Vince Scheidt in litt. 2005) San Diego County. This species is 
usually found in herbaceous plant communities that occur in open areas 
on clay soils, soils with a clay subsurface, or clay lenses within 
loamy, silty loam, loamy sand, silty deposits with cobbles or alkaline 
soils, ranging in elevation from 100 ft (30 m) to 2,500 ft (765 m), 
depending on soil series. These herbaceous communities are generally 
classified as annual grassland, valley needlegrass grassland, valley 
sacaton grassland, alkali playa, southern interior basalt vernal pools, 
San Diego mesa hardpan vernal pools, and San Diego mesa claypan vernal 
pools (Holland 1986). Based upon dominant species, these communities 
have been further divided into series which include, but are not 
limited to, California annual grassland, nodding needlegrass, purple 
needlegrass, foothill needlegrass, saltgrass, alkali grassland, alkali 
playa, and bush seepweed and habitats such as San Diego mesa vernal 
pools, San Jacinto Valley vernal pools, and Santa Rosa Plateau vernal 
pools (Sawyer and Keeler-Wolf 1994). B. filifolia grows in interstitial 
areas (often narrow bands of habitat surrounded by other vegetation) in 
association with coastal sage scrub in some locations, including 
portions of Los Angeles and San Bernardino counties.
    Brodiaea filifolia has also been found in the San Mateo Wilderness 
near the northern border of San Diego and Riverside counties and in the 
Miller Mountain area in the Santa Ana Mountains of western Riverside 
County. These occurrences appear to be mostly hybrids between B. 
filifolia and B. orcuttii, although plants of both species can also be 
found. Plants in the San Mateo Wilderness, mostly hybrid types, have 
been observed along the banks of, and within, intermittent stream 
channels. Plants in the Miller Mountain area have been observed on clay 
soils in southern needlegrass grassland (Boyd et al. 1992). In Miller 
Canyon, a tributary that drains the southern flank of Miller Mountain, 
B. filifolia and some hybrids are found on deposits of gravel, cobble, 
and small boulders along the stream channel in association with 
tussocks of Juncus macrophyllus (long-leaved rush) and Muhlenbergia 
rigens (deer grass) and in vernal seeps and on open, clay benches (Boyd 
et al. 1992).
    All members of the genus Brodiaea appear to require full sun, and 
many tend to occur on only one or a few soil series (Niehaus 1971). In 
San Diego, Orange, and Los Angeles counties, occurrences of Brodiaea 
filifolia are highly correlated with specific clay soil series such as, 
but not limited to, Alo, Altamont, Auld, and Diablo or clay lens 
inclusions in a matrix of loamy soils such as Fallbrook, Huerhuero, and 
Las Flores series (63 FR 54975, CNDDB 2003, Service GIS data 2004). In 
San Bernardino County, the species is associated with Etsel family-Rock 
outcrop-Springdale and Tujunga-Urban land-Hanford soils (Service GIS 
data 2004). In western Riverside County, the species is often found on 
alkaline silty-clay soil series such as, but not limited to, Domino, 
Grangeville, Waukena, and Willows or on clay loam soils underlain by 
heavy clays derived from basalt lava flows (i.e., Murrieta series on 
the Santa Rosa Plateau) (U.S. Department of Agriculture 1971, Bramlet 
1993, CNDDB 2003). On these soils, B. filifolia is typically found as a 
component of native perennial and annual grasslands. In the City of San 
Marcos in San Diego County, and near Hemet and on the Santa Rosa 
Plateau in Riverside County, these grasslands are often part of the 
watersheds for vernal pool and playa complexes (Bramlet 1993; Service 
1998; CNDDB 2005). These soils facilitate the natural process of seed 
dispersal and germination, cormlet disposition to an appropriate soil 
depth, and corm persistence through seedling and adult phases of 
flowering and fruit set described earlier.
    Clay soils dry out and exhibit surface cracks as surface moisture 
is depleted prior to the next rainy season. During this period the 
capsules of many bulb and corm-forming species mature. The seeds are 
released to fall to the ground, either on the surfaces or into the 
cracks in the soil. In this manner some seeds are dispersed into 
several horizons in the soil. With the fall and winter rains, the clay 
matrix hydrates, softens, expands and the cracks close up. Seedlings at 
first only produce leaves and a specialized root. Seedlings of Brodiaea 
filifolia are equipped with a specialized succulent contractile root. 
This organ, lost by mature corms, facilitates the seasonal downward 
movement of the young plant (Niehaus 1971). The contractile root swells 
with moisture in the wet season, creating space below the developing 
cormlet. As the soil dries the contractile root dries and shrinks 
longitudinally, drawing the young cormlet downward in the soil. This 
process continues to a point at which the soil moisture is adequate to 
keep the contractile root from shrinking, resulting in the location of 
the corm in the appropriate soil horizon for survival. Cormlets 
produced annually from existing older corms, also produce contractile 
roots which draw them laterally away from the parent corm (Niehaus 
1971).
    The size of a particular population of Brodiaea filifolia and other 
members of the species, as well as other corm and bulb forming species, 
is often measured by counting numbers of standing flower stalks. 
However, because more plants flower in wet years than dry years, 
flowering plants likely represent only a portion of the total 
population of plants present at any given site. In addition to the 
annual fluctuation in numbers of flowering plants, seedlings and young 
plants likely only produce leaves for a few years before they are able 
to produce flower stalks. These vegetative plants may go undetected in 
surveys.

Space for Growth of Individuals and Populations and for Normal Behavior

    Habitats with combinations of appropriate elevation and clay or 
clay associated soils, on mesas or low to moderate slopes that support 
open native or annual grasslands within open coastal sage scrub or 
coastal sage scrub-chaparral communities (PCE 1A), or in floodplains or 
in association with vernal pool or playa complexes that support various 
grassland or scrub communities (PCE 1B), or soils derived from olivine 
basalt lava flows on mesas and slopes

[[Page 73838]]

that supports vernal pools with grassland, oak woodland, or savannah 
communities (PCE 1C), or sandy loam soils derived from basalt and 
granodiorite parent material with deposits of cobbles and boulders 
supporting intermittent seeps, and open marsh communities (PCE 1D), 
provide space for the growth and persistence of Brodiaea filifolia. 
These habitats also sustain the pollinators needed for cross-
pollination.

Food, Water, Air, Light, Minerals, or Other Nutritional or 
Physiological Requirements

    A natural generally intact surface and subsurface structure, not 
permanently altered by anthropogenic land use activities, and 
associated physical processes such as a hydrological regime (PCE 2) is 
necessary to provide water, minerals, and other physiological needs for 
Brodiaea filifolia. A natural hydrological regime includes seasonal 
hydration followed by drying out of the substrate to promote growth of 
active plants and new corms for the following season. These conditions 
are also necessary for the normal development of seedlings and young 
vegetative cormlets.
    The conservation of Brodiaea filifolia is dependent on several 
factors that include, but are not limited to, maintenance of areas of 
sufficient size and configuration to sustain natural ecosystem 
components, functions, and processes (e.g., full sun exposure, natural 
fire and hydrologic regimes, adequate biotic balance to prevent 
excessive herbivory); protection of existing substrate continuity and 
structure, connectivity among groups of plants within geographic 
proximity to facilitate gene flow among the sites through pollinator 
activity and seed dispersal; and sufficient adjacent suitable habitat 
for vegetative reproduction and population expansion. The areas being 
designated as critical habitat provide one or more of the physical or 
biological features essential to the conservation of this species.
    Lands designated as critical habitat for Brodiaea filifolia occur 
within the historical range of the species. Based on the best available 
scientific information available regarding the life history, ecology, 
and distribution of this species, we believe that the primary 
constituent elements for B. filifolia are:
    (1) Appropriate soil series and associated vegetation at suitable 
elevations of either:
    (A) Clay soil series of various origins (e.g., Alo, Altamont, Auld, 
Diablo), clay lenses found as unmapped inclusions in other soils 
series, or within loamy soils underlain by a clay subsoil (e.g., 
Fallbrook, Huerhuero, Las Flores) that generally occur on mesas and 
gentle to moderate slopes, or in association with vernal pools, between 
the elevations of 100 ft (30 m) and 2,500 ft (765 m) and support open 
native or annual grassland communities, within open coastal sage scrub 
or coastal sage scrub-chaparral communities; or
    (B) Silty loam soil series underlain by a clay subsoil or caliche 
that are generally poorly drained, moderately to strongly alkaline, 
granitic in origin (e.g., Domino, Grangeville, Waukena, Willows), that 
generally occur in low-lying areas and floodplains, often in 
association with vernal pool or playa complexes, between the elevations 
of 600 ft (180 m) and 1,800 ft (550 m) and support native, annual, or 
alkali grassland or scrub communities; or
    (C) Clay loam soil series (e.g., Murrieta) underlain by heavy clay 
loams or clays derived from olivine basalt lava flows that generally 
occur on mesas and gentle to moderate slopes between the elevations of 
1,700 ft (520 m) and 2,500 ft (765 m) and support native or annual 
grassland or oak woodland savannah communities associated with basalt 
vernal pools; or
    (D) Sandy loam soils derived from basalt and granodiorite parent 
materials, deposits of gravel, cobble, and boulders, or hydrologically 
fractured weathered granite in intermittent streams and seeps that 
support open riparian and freshwater marsh communities associated with 
intermittent drainages, floodplains, and seeps generally between 1,800 
ft (550 m) and 2,500 ft (765 m).
    (2) Areas with an intact surface and subsurface structure not 
permanently altered by anthropogenic land use activities (e.g., deep, 
repetitive disking; grading). These features as well as associated 
physical processes (e.g., full sunlight exposure) are essential to 
maintain those substrate and vegetation types where Brodiaea filifolia 
is found and to support pollinator assemblages necessary to facilitate 
gene flow within and among populations of B. filifolia.

Criteria Used To Identify Critical Habitat

    We delineated critical habitat using the following criteria: (1) 
Essential occurrences; (2) presence of suitable vegetation; (3) 
presence of suitable soil types; and (4) an area about 820 ft (250 m) 
of vegetation surrounding each occurrence to provide for pollinator 
movement and habitat. We then evaluated the critical habitat areas to 
determine if any areas should be exempted or excluded from designation 
under sections 4(a)(3) or 4(b)(2) of the Act.
    We defined habitat containing features essential to the 
conservation of the species as areas of intact, occupied habitat and/or 
areas necessary to maintain gene flow, and/or areas containing 
significant populations.
    In our proposed rule we defined significant populations supporting 
1,000 or more naturally occurring individuals of Brodiaea filifolia 
and/or those found in unique habitat; for example, populations found 
within an atypical vegetative community, on atypical soils, and/or at 
an atypical elevation. Populations found within unique habitat types 
may harbor genetic diversity that facilitates their persistence in 
these areas. This overall diversity may be important to the 
conservation of the species.
    In this final designation, we defined significant occurrences as 
those containing 850 plants or more. This threshold of significance was 
derived from a review of all known population estimates in areas 
proposed for critical habitat designation. A review of the population 
estimates in the proposed units revealed a significant step between 
populations containing 250 or fewer plants and those supporting 850 or 
more. Barrett and Kohn (1991) have discussed the consequences of small 
population size in plants. They stress the need for maintaining genetic 
variability, especially for rare alleles. Maintaining diversity of 
self-incompatible alleles is important to ensure production of fertile 
seeds and thus is important for the survival of smaller populations. 
The likelihood of maintaining this diversity is increased with more 
individuals. We believe that occurrences supporting at least 850 plants 
have the most potential to contribute to the long-term conservation of 
the species.
    Often significant populations are also peripheral populations. 
Peripheral populations of a species are separable by geographical and/
or ecological differences from central populations (Lesica and 
Allendorf 1995). Conservation of species may depend upon protection of 
the genetic variability present across the range of a species. Reduced 
gene flow and limited seed dispersal may contribute to the genetic 
diversity of peripheral populations attributable to genetic drift from 
central populations. Population divergence may also be attributed to 
differences in habitat such as soil types, fire frequency, and climate 
(Lesica and Allendorf 1995). Ornduff (1966) found the highest 
concentration of morphological and cytological variants

[[Page 73839]]

at the margin of the geographic range of species of Lasthenia. For 
these reasons, conservation of geographically (e.g., Los Angeles 
County) and ecologically (e.g., Devil Canyon) peripheral populations 
may be essential for the conservation of B. filifolia.
    Currently, the exact number of extant populations or occurrences of 
Brodiaea filifolia is unknown. Reasons for this include the lack of 
surveys in all areas of suitable habitat, false negative survey results 
yielded during inappropriate seasons, and variation in how survey data 
is recorded. For example, some surveyors may record populations within 
close proximity as a single occurrence while others may record each 
population as an individual occurrence. Table 3 of Bramlet and White 
(2004) contains a working list of approximately 83 sites where B. 
filifolia has been reported. However, some of these sites are included 
with others as single occurrences by the CNDDB, others have no locator, 
no population description, are translocated populations, or were 
considered extirpated. These sites were not considered further. 
Occurrences comprised solely of translocated plants were not considered 
to contain the features essential to the conservation of the species 
because their potential for long-term survival and contribution to the 
species' gene pool is currently unknown.
    Where possible, we delineated a vegetative area of 820 ft (250 m) 
around each occurrence included in this designation to provide for 
pollinator movement and habitat. One study found a 50 percent reduction 
in seed set when pollinator habitat was 3,280 ft (1,000 m) from a 
target plant species and at 820 ft (250 m) for another target plant 
species (Steffan-Dewenter and Tscharntke 1999). Studies also suggest 
that the degradation of pollinator habitat is likely to adversely 
affect the abundance of pollinator species (Jennersten 1988; Rathcke 
and Jules 1993; Steffan-Dewenter and Tscharntke 1999). The various 
pollinator species associated with Brodiaea filifolia as well as 
studies quantifying insect pollinating flight distances are discussed 
in the ``Background'' section of this rule. Studies to quantify the 
distance that bees will fly to pollinate their host plants are limited 
in number, but the few that exist indicate that some bees will 
routinely fly from 328 to 984 ft (100 to 500 m) to pollinate plants 
with some flying at least 3,280 ft (1,000 m) to pollinate flowers 
(Schulke and Waser 2001; Steffan-Dewenter and Tscharntke 2000). Because 
we do not currently have much information on specific visitation 
behavior of the pollinator species identified on B. filifolia, we based 
the 820 ft (250 m) distance on a conservative estimate for mean routine 
flight distance for bees. These 820 ft (250 m) areas contain suitable 
soils and vegetation required by all stages of the species' lifecycle 
and provide for gene flow, pollen dispersal, seed dispersal, and 
germination.
    When determining critical habitat boundaries, we made every effort 
to avoid the designation of developed land such as buildings, paved 
areas, and other structures that lack PCEs for Brodiaea filifolia. Any 
such structures, and the land under them, inadvertently left inside the 
mapped critical habitat boundaries due to scale have been excluded by 
text in the rule and are not designated as critical habitat. Therefore, 
Federal actions limited to these areas would not trigger section 7 
consultations, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the identified 
primary constituent elements (PCEs) may require special management 
considerations or protection. Threats to the PCEs for Brodiaea 
filifolia include the direct and indirect effects of habitat loss and 
degradation from urban development; invasive plant species; 
recreational activities; agricultural practices; mowing; and dumping of 
manure and sewage sludge on suitable habitat.
    Loss and degradation of habitat from development was cited in the 
final listing rule as a primary cause for the decline of Brodiaea 
filifolia. Most of the populations of this species are located in San 
Diego, Orange, and Riverside counties. These counties have had and 
continue to have increasing populations and attendant housing pressure. 
Natural areas in these counties are frequently near or bounded by 
urbanized areas. Urban development removes the plant community 
components and associated clay soils identified in the primary 
constituent elements. This eliminates or fragments the populations of 
B. filifolia. Urbanization may also indirectly alter surface as well as 
subsurface layers to the degree that they will no longer support plant 
community types known to be associated with B. filifolia.
    Invasive plant species may alter the vegetation composition or 
physical structure identified in the primary constituent elements to an 
extent that the area does not support B. filifolia or its associated 
vegetation and invasive species may compete for space and resources.
    Authorized and unauthorized recreation activities may impact the 
vegetation composition and soil structure to an extent that the area 
will no longer have intact soil surfaces or support associated 
vegetation as identified in the primary constituent elements. Public 
hiking trails and/or off-road vehicle activity are examples of this 
type of activity.
    Some methods of mowing and disking for agricultural or fire 
management may preclude the full and natural development of Brodiaea 
filifolia by adversely affecting the primary constituent elements. 
Mowing may reduce the production and dispersal of seeds, alter the 
associated vegetation needed for pollinator activity, or reduce the 
number and vigor of plants present by cutting off the leaves 
(PCE<greek-i> 2). Dumping of sewage sludge can cover plants as well as 
the soils they need. In addition this practice can alter the chemistry 
of the substrate and lead to alterations in the vegetation supported at 
the site (PCE<greek-i> 1).
    Several management actions can preserve the PCEs for Brodiaea 
filifolia. Foremost among these is avoidance of habitat known to be 
occupied. However, set-aside areas must usually include some form of 
management to address other threats to the PCEs (e.g., non-native plant 
invasion). Loss of habitat or degradation of soils can be avoided with 
appropriate grading and soil management as part of development. Slope 
grading so as to avoid inflow or outflow of sediments may protect the 
integrity of the onsite soils that support B. filifolia and associated 
vegetation. Dumping of sewage sludge should be avoided in all areas 
containing B. filifolia. The components in sludge can permanently alter 
the soil chemistry as well as the vegetation it supports.
    Invasive plant species may be managed by reducing the overgrowth of 
these plants through a combination of clearing, mowing, and/or thatch 
removal. Any temporary impacts from recreational activities could be 
timed to avoid the most sensitive time of year and hydrological 
conditions for Brodiaea filifolia. Mowing and disking for agricultural 
or fire suppression purposes could be located in such a manner so as to 
avoid known populations of the species. Habitat enhancement can allow 
for additional habitat for pollinators as well as for B. filifolia.

Critical Habitat Designation

    We are designating 597 ac (242 ha) of critical habitat within 4 
units/subunits

[[Page 73840]]

in Los Angeles and San Diego counties. Habitat containing features 
essential to the conservation of Brodiaea filifolia in Riverside, 
Orange, and San Diego counties covered by approved and/or pending HCPs, 
or a Settlement Agreement has been excluded from this final 
designation. Habitat containing features essential to the conservation 
of B. filifolia on Camp Pendleton is exempt under section 4(a)(3) of 
the Act (see ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act'' for a 
detailed discussion). Areas designated as critical habitat are under 
Federal and private ownership. The species is not currently known to 
occur on any Tribal-owned lands within its range; therefore, no Tribal-
owned lands are included in this designation. Table 2 provides the 
approximate area of critical habitat by county and land ownership. 
Table 3 provides the approximate area of areas containing features 
essential to the conservation of the species, areas excluded from the 
final designation, and total critical habitat designated for B. 
filifolia.

   Table 2.--Land Ownership Acreage (Acres (ac); Hectares (ha)) and County of Units and Subunits Designated as
                                 Final Critical Habitat for Brodiaea filifolia.
----------------------------------------------------------------------------------------------------------------
                                                                   Private  (ac;  *Federal  (ac;    Total  (ac;
   Critical habitat unit & subunit               County                 ha)             ha)             ha)
----------------------------------------------------------------------------------------------------------------
Unit 1: Los Angeles County...........  Los Angeles..............  ..............  ..............  ..............
    1a: Glendora.....................  .........................          96; 39               0           96;39
    1b: San Dimas....................  .........................         178; 72           20; 8         198; 80
Unit 5: Northern San Diego County....  San Diego................  ..............  ..............  ..............
    5b: Devil Canyon.................  .........................               0        249; 101        249; 101
Unit 8: San Marcos...................  .........................  ..............  ..............  ..............
    8d: Upham........................  .........................          54; 22               0          54; 22
                                      ----------------------------
        Total........................  .........................        328; 133        269; 109       597; 242
----------------------------------------------------------------------------------------------------------------
*Federal lands included in this designation are managed by the Angeles National Forest and the Cleveland
  National Forest.


  Table 3.--Areas Containing Features Essential to the Conservation of the Species, Areas Exempted or Excluded
  From the Designation, and Total Critical Habitat Designated for Brodiaea filifolia in Acres (ac) and hectares
                                                      (ha)
                          Please note that discrepancies in totals are due to rounding.
----------------------------------------------------------------------------------------------------------------
                                         Total habitat with
                                        features essential to      Habitat exempted/       Designated critical
               County                  the conservation of the  excluded from the final          habitat
                                               species                designation
----------------------------------------------------------------------------------------------------------------
Los Angeles.........................  294 ac..................  0 ac...................  294 ac.
                                      119 ha..................  0 ha...................  119 ha.
San Bernardino......................  0 ac....................  0 ac...................  0 ac.
                                      0 ha....................  0 ha...................  0 ha.
Orange..............................  1,158 ac................  1,158 ac...............  0 ac.
                                      469 ha..................  469 ha.................  0 ha.
Riverside...........................  3,062 ac................  3,062 ac...............  0 ac.
                                      1,239 ha................  1,239 ha...............  0 ha.
San Diego...........................  1884 ac.................  1580 ac................  303 ac.
                                      762 ha..................  639 ha.................  123 ha.
    Total...........................  6,397 ac................  5800 ac................  597 ac.
                                      2589 ha.................  2,347 ha...............  242 ha.
----------------------------------------------------------------------------------------------------------------

    The units described below constitute our best assessment at this 
time of those areas containing features essential to the conservation 
of Brodiaea filifolia. Each unit or subunit contains the PCEs related 
to an intact surface and subsurface structure essential to maintain the 
identified soil and vegetation types where the species is found, and 
support for pollinator assemblages necessary to facilitate gene flow 
within and among populations of B. filifolia. Lands within each unit or 
subunit are also currently occupied and within the historical range of 
B. filifolia.
    Descriptions of each final critical habitat unit and the reasons 
why they are included in the designation are listed below. Unit 
descriptions also include the size of the unit, the general vegetation 
and soil types present in the unit, any known threats specific to the 
unit, and numbers of individual plants, if known. Because the species 
may be present as mature but non-flowering corms or immature corms 
rather than flowering plants, the number of individuals given should be 
considered an estimate of the minimum number of plants present. In this 
final rule we have retained the same unit/subunit identifiers that we 
used in the proposed designation for this species. We believe the 
consistent use of one set of unit/subunit identifiers allows for easier 
comparison between the proposed critical habitat and final critical 
habitat maps.

Unit Descriptions

    Unit 1: Los Angeles County Unit--This unit consists of 294 ac (119 
ha) divided into 2 subunits.
    Subunit 1a: Glendora. This subunit, known to be occupied at the 
time of listing, consists of 96 ac (39 ha) of private lands in the City 
of Glendora, in the foothills of the San Gabriel Mountains, eastern Los 
Angeles County. Lands within this subunit contain Cieneba-Exchequer-
Sobrant soils, a type

[[Page 73841]]

of silty loam, and consist primarily of southern mixed chaparral and 
coastal sage scrub. This population represents only one of two 
occurrences located in the foothills of the San Gabriel Mountains part 
of the Transverse Range, where the species was historically found, and 
represents the nearest genetic connection to the San Dimas subunit. 
This unit supports a significant occurrence of about 2,000 Brodiaea 
filifolia associated with annual grassland interstices in mixed 
chaparral. This occurrence is also significant because it is the 
northernmost known occurrence of the species. Populations reported at 
this site in 1991 represent the rediscovery of a population last 
documented in 1921 (CNDDB 2005). The site is owned and managed by the 
Glendora Community Conservancy (GCC). Currently, no management plan has 
been developed for these lands, although the GCC has indicated that 
they are willing to develop a management plan for this species on their 
property (Ann Croissant, GCC pers. comm. to G. Wallace USFWS 2005). 
Special management considerations may be required to control invasive 
plant species; to maintain the identified vegetation types as well as 
pollinator habitat essential to the conservation of the species.
    Subunit 1b: San Dimas subunit. This subunit consists of 198 ac (80 
ha) of Federal (Angeles National Forest) and privately owned lands on 
the boundary between the City of Glendora and the City of San Dimas in 
the foothills of the San Gabriel Mountains of eastern Los Angeles 
County. Lands within this subunit contain Cieneba-Exchequer-Sobrant 
soils, a type of silty loam, and consist primarily of coastal sage 
scrub and southern mixed chaparral. Lands in this subunit support two 
significant populations totaling about 6,000 plants associated with 
interstitial annual grassland near chaparral (CNDDB 2005). The 
occurrences are also significant because they are peripheral to the 
range of the species. This is one of only two areas in the foothills of 
the San Gabriel Mountains of the Transverse Range where Brodiaea 
filifolia occurred historically, and represents the only likely genetic 
connection to plants in the Glendora subunit. While B. filifolia is not 
currently known to occur on the Angeles National Forest, it occurs just 
outside the boundary. Approximately 20 ac (8 ha) of Angeles National 
Forest lands are included in the designation to provide for pollinator 
habitat. The City of Glendora conducted an appraisal for a portion of 
the area for consideration of acquisition, but no action to acquire the 
property has been taken (D. Walter, Senior Planner City of Glendora 
pers. comm. to G. Wallace USFWS 2005). This site is threatened by urban 
development. The City of Glendora has reviewed several proposals for 
development of this area (D. Walter, Senior Planner City of Glendora 
pers. comm. to G. Wallace USFWS 2005). In addition, the City of 
Glendora has halted illegal grading on a property in the northern 
portion of the subunit. Therefore, special management may be required 
to minimize disturbance to the surface and subsurface structure within 
this subunit and to maintain the identified soil and vegetation types 
as well as pollinator habitat essential to the conservation of the 
species.
    Subunit 5b: Devil Canyon. This subunit consists of 249 ac (101 ha) 
of federally managed land (Cleveland National Forest) in northeastern 
San Diego County. Lands within this subunit support an occurrence of 
Brodiaea filifolia estimated in the thousands (CNDDB 2005). Although 
there are some hybrids of B. filifolia and B. orcuttii in this subunit, 
the level of hybridization is less extensive than in the Miller 
Mountain area; therefore, it is likely that a minimum of 850 plants are 
pure B. filifolia. This occurrence is also significant in that it is 
found at the uppermost elevation range within the geographic area 
occupied by the species. This occurrence is found in an ecologically 
unique habitat of vernal seeps and drainages on low granitic outcrops 
in chamise chaparral (CNDDB 2005). The Cleveland National Forest does 
not currently have a management plan specific to Brodiaea filifolia, 
however, timing of cattle grazing has been adjusted to avoid the 
flowering period for the species (Kirsten Winter, Forest Botanist, 
pers. comm. 2004). Special management may be required to minimize 
disturbance to the surface structure within this subunit, to control 
invasive species, and to maintain the identified vegetation types as 
well as pollinator habitat essential to the conservation of the 
species.
    Subunit 8d: Upham. This subunit consists of 54 ac (22 ha) of 
privately owned land in the City of San Marcos, northern San Diego 
County. The subunit is immediately surrounded by urban development. 
However, areas of extant valley and foothill grasslands exist in the 
surrounding area. This occurrence contained about 1,000 plants in 1986 
and again in 1995 (CNDDB 2005). In addition, the occurrence of Brodiaea 
filifolia in this subunit occurs in a unique habitat in that the plants 
are in association with vernal pools. Plants in this subunit are 
threatened by urban development, and special management may be required 
to minimize disturbance to the surface and subsurface structure within 
this subunit and to maintain the identified soil and vegetation types.

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. 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. We are currently 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.
    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 a time as a proposed designation is finalized, 
any reasonable and prudent alternatives or reasonable and 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 species or destroy or adversely modify its 
critical habitat. If a Federal action may affect a listed

[[Page 73842]]

species or its critical habitat, the responsible Federal agency (action 
agency) must enter into consultation with us. Through this 
consultation, the action agency ensures that their actions do not 
destroy or adversely modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect Brodiaea filifolia or its 
critical habitat will require section 7 consultation. Activities on 
non-Federal lands requiring a permit from a Federal agency, such as a 
permit from the U.S. Army Corps of Engineers under section 404 of the 
Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some 
other Federal action, including funding (e.g., Federal Highway 
Administration or Federal Emergency Management Agency) will also 
continue to be subject to the section 7 consultation requirement. 
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.
    Each of the areas designated in this rule has been determined to 
contain sufficient PCEs to provide for one or more of the life history 
requirements of B. filifolia. In some cases, the PCEs are being taken 
into consideration in ongoing Federal actions. As a result, ongoing 
Federal actions at the time of designation will be included in the 
baseline in any consultation conducted subsequent to this designation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of Brodiaea 
filifolia. Federal activities that, when carried out, may adversely 
affect critical habitat for B. filifolia include, but are not limited 
to:
    (1) Removing, thinning, or destroying Brodiaea filifolia habitat 
(as defined in the ``Primary Constituent Elements'' discussion), 
whether by burning, mechanical, chemical, or other means (e.g., 
plowing, grubbing, grading, grazing, woodcutting, construction, road 
building, mining, mechanical weed control, herbicide application, 
etc.);
    (2) Activities that degrade or destroy Brodiaea filifolia habitat 
(and its PCEs) including, but not limited to, livestock grazing, 
clearing, disking, farming, residential or commercial development, 
introducing or encouraging the spread of nonnative species, off-road 
vehicle use, and heavy recreational use;
    (3) Activities that diminish habitat value or quality through 
indirect effects (e.g., edge effects, invasion of exotic plants or 
animals, or fragmentation);
    (4) Any activity, including the regulation of activities by the 
Corps of Engineers under section 404 of the Clean Water Act or 
activities carried out by or licensed by the Environmental Protection 
Agency (EPA), that could alter watershed or soil characteristics in 
ways that would alter or reduce the quality or quantity of surface and 
subsurface flow of water needed to maintain Brodiaea filifolia habitat 
(these activities include, but are not limited to, altering the natural 
fire regime either through fire suppression or by using prescribed 
fires that are too frequent or poorly timed; development, including 
road building and other direct or indirect activities; and agricultural 
activities, livestock grazing, and vegetation manipulation such as 
clearing or grubbing in the watershed upslope from B. filifolia);
    (5) Road construction and maintenance, right-of-way designation, 
and regulation of agricultural activities, or any activity funded or 
carried out by the Department of Transportation or Department of 
Agriculture that could result in excavation, or mechanized land 
clearing of Brodiaea filifolia habitat; and
    (6) Licensing of construction of communication sites by the Federal 
Communications Commission or funding of construction or development 
activities by the U.S. Department of Housing and Urban Development that 
could result in excavation, or mechanized land clearing of Brodiaea 
filifolia habitat.
    The 4 critical habitat units are within the geographical area 
occupied by the species and contain the features essential to the 
conservation of Brodiaea filifolia. Additionally, all habitats within 
this designation are likely to be used by the pollinators for the 
species.

Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act

    In our critical habitat designations, we use the provisions 
outlined in sections 3(5)(A), 4(a)(3), and 4(b)(2) of the Act to 
evaluate those specific areas that we are considering for critical 
habitat designation. Lands that we determined do not meet the 
definition of critical habitat under section 3(5)(A), lands that have 
been exempted under section 4(a)(3), and areas excluded under section 
4(b)(2) include those already receiving special management 
considerations or protection, are covered by legally operative HCPs 
that include Brodiaea filifolia as a covered species, are covered by a 
INRMP that was determined to provide a benefit to the species, or are 
proposed for coverage in a draft HCP or other identified conservation 
effort for which we have a reasonable expectation will reach a 
successful outcome.

Application of Section 3(5)(A) of the Act

    Section 3(5)(A) of the Act defines critical habitat as 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 (I) 
essential to the conservation of the species and (II) which may require 
special management considerations or protection. Therefore, areas 
within the geographical area occupied by the species at the time of 
listing that do not contain the features essential for the conservation 
of the

[[Page 73843]]

species are not, by definition, critical habitat. Similarly, areas 
within the geographical area occupied by the species at the time of 
listing containing essential physical or biological features that do 
not require special management considerations or protection also are 
not, by definition, critical habitat. To determine whether an area 
requires special management, we first determine if the features 
essential to the conservation of the species located there generally 
require special management to address applicable threats. If those 
features do not require special management, or if they do in general 
but not for the particular area in question because of the existence of 
an adequate management plan or for some other reason, then the area 
does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets two criteria: (1) The plan provides management, 
protection or enhancement to the PCEs at least equivalent to that 
provided by a critical habitat designation; and (2) the Service has a 
reasonable expectation that the management, protection or enhancement 
actions will continue for the foreseeable future.
    We are not including habitat containing features essential to the 
conservation of Brodiaea filifolia in subunit 8b (Rancho Santalina/Loma 
Alta) in the City of San Marcos, San Diego County, California, under 
section 3(5)(A) of the Act. This subunit is composed of two properties, 
Rancho Santalina and Loma Alta. Rancho Santalina has completed a long-
term management plan that specifically addresses B. filifolia. 
Likewise, the Loma Alta development has submitted a Perpetual Habitat 
Management Plan that addresses B. filifolia. In determining whether an 
area is adequately managed and does not require special management, the 
Service generally evaluates existing management to determine whether it 
provides (1) a conservation benefit to the species; (2) reasonable 
assurances for implementation; and (3) reasonable assurances that 
conservation efforts will be effective.
    The Rancho Santalina project includes a completed a long-term 
management plan in November 2003, specifically for the long-term 
protection and enhancement of Brodiaea filifolia (Dudek and Associates 
2003). Approximately 1,500 plants on 5.8 acres will be included in a 
Preserve Site. Impacted plants (about 430) from the site will be 
translocated to the contiguous 1 ac (.4 ha) area. Additional plants 
will be translocated from the Las Posas Road/State Route 78 Interchange 
Project. The total acreage of the Preserve Site is 6.8 acres. The site 
will be preserved and managed in perpetuity with funding provided 
through a non-wasting endowment of $103,888 (Office of Administrative 
Law 2003). The site will be protected from human and vehicular access 
by perimeter fencing and signage and will be part of the Northwestern 
San Diego County Multiple Habitat Conservation Program preserve area.
    The goals of the management plan are to preserve the natural 
population and translocated plants of Brodiaea filifolia, and to 
sustain the coastal sage scrub and grassland vegetation to support and 
buffer the population on site. The site will be monitored for 
translocation success for seven years.
    The Loma Alta project has completed a Perpetual Land Management 
Plan that provides a conservation benefit for Brodiaea filifolia. An 
area of 0.74 ac (0.3 ha) that has been known to support approximately 
4,000 plants will be included in the 4.86 acre Loma Alta Environmental 
Preserve. A conservation easement was placed over the Preserve area in 
December 2003 (City of San Marcos 2003). Management provisions for the 
site include 12 visits per year to the site: 9 visits to check for 
fence breaks and unauthorized activities, 1 visit to complete 
vegetation assessments including the current year's population of B. 
filifolia, 1 visit to remove trash and exotic species, and 1 visit for 
a spring point avian survey.
    We found that most of the management actions proposed in the two 
management plans outlined above would be effective and provide a 
conservation benefit for B. filifolia. Therefore, all of these areas 
containing features essential to the conservation of B. filifolia 
within the Rancho Santalina/Loma Alta subunit (8b) are being removed 
from consideration in this final critical habitat designation because 
these lands are deemed to be adequately managed pursuant to section 
3(5)(A) of the Act.

Relationship of Critical Habitat to Department of Defense Lands

    Section 318 of the fiscal year 2004 National Defense Authorization 
Act (Pub. L. 108-136) amended the Act by adding a new section 
4(a)(3)(B) to address the relationship of INRMPs to critical habitat. 
This provision prohibits the Service from designating as critical 
habitat any lands or other geographical areas owned or controlled by 
the Department of Defense (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 determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation.
    We received comments from the U.S. Marine Corps regarding the 
proposed critical habitat designation, and economic impact and national 
security impact on Department of Defense lands. We specifically 
requested information from the Department of Defense regarding the 
benefits of any INRMP to Brodiaea filifolia in the proposed rule (69 FR 
71284).

Application of Section 4(a)(3) to Camp Pendleton

    In the proposed rule, we excluded habitat containing features 
essential to the conservation of Brodiaea filifolia within mission-
critical training areas on Camp Pendleton (Camp Pendleton) under 
section 4(b)(2) of the Act. In this final rule, Camp Pendleton is 
exempt from critical habitat pursuant to section 4(a)(3) of the Act. 
Thus, no lands owned or controlled by Camp Pendleton are being 
designated as critical habitat for B. filifolia.
    In November 2001, Camp Pendleton completed their INRMP (U.S. Marine 
Corps 2001), which includes the following conservation measures for 
Brodiaea filifolia: (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 
semi-annual basis; (3) use of the resource atlas to plan operations and 
projects to avoid impacts to B. filifolia and to trigger section 7 
consultations if an action may affect the species; and (4) 
transplantation when avoidance is not possible. These measures are 
established, ongoing aspects of existing programs that provide a 
benefit to B. filifolia. Camp Pendleton also has Base directives and 
Range and Training Regulations that are integral to their INRMP, and 
that provide benefits to B. filifolia. Camp Pendleton implements Base 
directives to avoid and minimize adverse effects to B. filifolia, such 
as: (1) Bivouac, command post, and field support activities should be 
no closer than 164 ft (50 m) to occupied habitat year round; (2) 
limiting vehicle and equipment operations to existing road and trail 
networks year round; and (3) requiring environmental clearance prior to 
any soil excavation, filling, or grading. Camp Pendleton has also 
contracted for and funded surveys for B. filifolia in summer 2005 and a 
GIS-

[[Page 73844]]

based monitoring system which will allow them to better manage listed 
species on Camp Pendleton, including B. filifolia.
    Camp Pendleton has also demonstrated ongoing funding of their INRMP 
and management of endangered and threatened species. In Fiscal Year 
2002, Camp Pendleton spent approximately $1.5 million on the management 
of federally listed species. In Fiscal Year 2003, they expended over $5 
million to fund and implement their INRMP, including management actions 
that provided a benefit for Brodiaea filifolia. Moreover, in 
partnership with the Service, Camp Pendleton is funding two Service 
biologists to assist in implementing their Sikes Act program and buffer 
lands acquisition initiative.
    Based on Camp Pendleton's past funding history for listed species 
and their Sikes Act program (including the management of Brodiaea 
filifolia), there is a high degree of certainty that Camp Pendleton 
will implement their INRMP in coordination with the Service and the 
CDFG in a manner that provides a benefit to B. filifolia, coupled with 
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 B. 
filifolia. The management programs, Base directives, and Range and 
Training Regulations to avoid and minimize impacts to B. filifolia are 
consistent with section 7 consultations with Camp Pendleton. Therefore, 
the Secretary has found that the INRMP for Camp Pendleton provides a 
benefit for B. filifolia and is exempting all lands on Camp Pendleton 
from critical habitat pursuant to section 4(a)(3) of the Act.
    Currently, we are in the process of completing a programmatic 
section 7 consultation for upland species on Camp Pendleton. Brodiaea 
filifolia is addressed in this uplands species consultation. When this 
consultation is completed, we anticipate that Camp Pendleton will 
incorporate the conservation measures from the Biological Opinion into 
their INRMP. At that time, Camp Pendleton's INRMP will provide further 
benefits to B. filifolia.

Relationship of Critical Habitat to Approved and Pending 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 after taking into consideration 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 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.
    Under section 4(b)(2) of the Act, we are excluding critical habitat 
from approximately 4,883 ac (1,976 ha) of non-Federal lands within 
approved or pending HCPs. We are excluding non-Federal lands from 
critical habitat within the approved (1) Western Riverside County 
Multiple Species Habitat Conservation Plan (MSHCP) (3062 ac, 1239 ha); 
(2) Villages of La Costa Habitat Conservation Plan (HCP) (208 ac, 84 
ha); and (3) Northwestern San Diego County Multiple Habitat 
Conservation Program (MHCP): City of Carlsbad Subarea Plan/Habitat 
Management Plan (City of Carlsbad HMP) (414 ac, 168 ha). We are also 
excluding non-Federal lands from critical habitat within two pending 
HCPs, the (4) City of Oceanside HMP, also a Subarea Plan under the 
Northwestern San Diego County MHCP (41 ac, 17 ha) and (5) Orange County 
Southern Subregion Natural Communities Conservation Plan (NCCP)/HCP) 
(1,158 ac, 468 ha). Table 4 below provides a list of the exemptions and 
exclusions in this rule. We have determined that the benefits of 
excluding areas within these legally operative and pending HCPs from 
final critical habitat designation outweigh the benefits of including 
them in critical habitat.

    Table 4.--Acreage of Habitat Containing Features Essential to the
  Conservation of the Species, Areas Excluded or Exempted From Critical
Habitat, and Designated Critical Habitat (Acres (ac); Hectares (ha)) for
                           Brodiaea filifolia
------------------------------------------------------------------------
 
------------------------------------------------------------------------
Total habitat containing features essential to   6,397 ac.
 the conservation of Brodiaea filifolia.         2,589 ha.
Habitat excluded from the final critical
 habitat designation under section 4(b)(2) of
 the Act:
    Western Riverside County Multiple Species    3,062 ac.
     Habitat Conservation Plan (Riverside        1,239 ha.
     County).
    Villages of La Costa Habitat Conservation    208 ac.
     Plan (San Diego County).                    84 ha.
    City of Carlsbad Habitat Management Plan     414 ac.
     (San Diego County).                         368 ha.
    Pending City of Oceanside Subarea Plan (San  41 ac.
     Diego County).                              17 ha.
    Pending Orange County Southern Subregion     1,158 ac.
     Natural Community Conservation Plan/        469 ha.
     Habitat Conservation Plan (Orange County).
    Habitat exempted from critical habitat       917 ac.
     designation under section 4(a)(3) of the    371 ha.
     Act: Marine Corps Base, Camp Pendleton
     (San Diego County).
        Total habitat containing features        5,800 ac.
         essential to the conservation of        2,347 ha.
         Brodiaea filifolia excluded or
         exempted from final critical habitat.
        Total habitat containing features        597 ac.
         essential to the conservation of        242 ha.
         Brodiaea filifolia designated as final
         critical habitat.
------------------------------------------------------------------------

    Brodiaea filifolia is a covered species under the approved Western 
Riverside County MSHCP, the Villages of La Costa HCP, and the City of 
Carlsbad HMP and, as such, receives protection and management of 
features essential for the

[[Page 73845]]

species' conservation. We issued the section 10(a)(1)(B) permit for the 
Western Riverside County MSHCP on June 22, 2005; the Villages of La 
Costa HCP on June 7, 1995; and the City of Carlsbad HMP on November 9, 
2004. Significant conservation of B. filifolia is also identified and 
committed to under a pending HMP for the City of Oceanside and for the 
Orange County Southern Subregion NCCP/HCP through a signed Settlement 
Agreement for the Ranch Plan, a comprehensive land use and open space 
plan that is a component of the draft Orange County Southern Subregion 
NCCP/HCP, addressing lands owned by the County of Orange and lands 
owned by Rancho Mission Viejo. The Settlement Agreement was signed on 
August 16, 2005. These approved and legally operative HCPs, the pending 
City of Oceanside HMP, and the pending Orange County Southern Subregion 
NCCP/HCP and associated Settlement Agreement provide special management 
and protection for the physical and biological features essential for 
the conservation of B. filifolia 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 areas 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 B. 
filifolia.
    Below we first provide general background information on each 
approved or pending HCP, followed by an analysis pursuant to section 
4(b)(2) of the Act of the benefits of including lands in all five areas 
within the critical habitat designation, an analysis of the benefits of 
excluding these lands from the designation, 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 lands 
within these approved and pending HCPs will not result in the 
extinction of Brodiaea filifolia.

Western Riverside County Multiple Species Habitat Conservation Plan

    We excluded 3,062 ac (1,239 ha) of non-Federal lands within the 
Western Riverside County MSHCP under section 4(b)(2) of the Act. The 
Western Riverside County MSHCP was finalized and approved on June 22, 
2004. Participants in this HCP include 14 cities; the County of 
Riverside, including the Riverside County Flood Control and Water 
Conservation Agency, Riverside County Transportation Commission, 
Riverside County Parks and Open Space District, and Riverside County 
Waste Department; the California Department of Parks and Recreation; 
and CALTRANS (Riverside County et al.). The Western Riverside County 
MSHCP is a subregional plan under the State's NCCP Act of 2001 and was 
developed in cooperation with the California Department of Fish and 
Game (CDFG).
    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. Within the 1.26-million ac (510,000 
ha) planning area of the MSHCP, approximately 153,000 ac (62,000 ha) of 
diverse habitats are being conserved. The conservation of 153,000 ac 
(62,000 ha) complements approximately 347,000 ac (140,431 ha) of other 
existing natural and open space areas that are already conserved 
through other means (e.g., State parks, USFS, and County park lands). 
These lands together will form an overall 500,000-ac MSHCP Conservation 
Area.
    The MSHCP Plan Area includes a portion of the range of Brodiaea 
filifolia, which is a covered species under this NCCP/HCP. The Service 
concluded that the MSHCP would not jeopardize the continued existence 
of B. filifolia in its Biological and Conference Opinion (Service 
2004).
    The MSHCP identifies the following specific conservation goals that 
will be implemented for the long-term conservation of Brodiaea 
filifolia: (1) To include within the MSHCP Conservation Area at least 
6,900 ac (2,792 ha) of grassland and playa/vernal pool habitat within 
the San Jacinto River, Mystic Lake and Salt Creek areas that include 
the 3,062 ac of land that containing features essential to the 
conservation of the species, including occurrences of B. filifolia 
identified in the proposed rule; (2) to include within the MSHCP 
Conservation Area at least 11 major locations supporting B. filifolia 
in two core areas along the San Jacinto River and on the Santa Rosa 
Plateau, including occurrences identified in the proposed rule as 
significant; (3) to conduct surveys for the species in certain areas of 
suitable habitat until the conservation goals are met; and (4) to 
include within the MSHCP Conservation Area the floodplain along the San 
Jacinto River consistent with objective 1 and to maintain floodplain 
processes along the San Jacinto River. In addition, the MSHCP requires 
surveys to be conducted for B. filifolia within the MSHCP Conservation 
Area at least every 8 years to verify occupancy at a minimum 75 percent 
of the known locations. Management measures will be triggered, as 
appropriate, if a decline in species distribution is documented below 
this threshold. Other management actions will help maintain habitat and 
populations of B. filifolia by preventing alteration of hydrology and 
floodplain dynamics, off-road vehicle use, grazing, and competition 
from non-native plants.
    Occurrences of Brodiaea filifolia are frequently associated with or 
near vernal pool complexes. The Western Riverside County MSHCP provides 
for special protection of vernal pool complexes and associated species 
through its Protection of Species Associated with Riparian/Riverine 
areas and Vernal Pools policy. Implementation of this policy will 
assist in providing protection to this species' essential habitat by 
avoiding and minimizing direct impacts to vernal pools and associated 
habitats. In addition, B. filifolia is considered an Additional Survey 
Needs and Procedures species under the MSHCP. Under this policy, 
surveys for B. filifolia will be conducted where suitable habitat is 
present in identified species survey areas until such time as the 
conservation objectives for this species are met. Finally, the MSHCP's 
Guidelines Pertaining to the Urban/Wildlands Interface provides some 
assurance that future urbanization will maintain the existing water 
quality and quantity needed to maintain floodplain areas and vernal 
pools supporting B. filifolia along the San Jacinto River and at upper 
Salt Creek west of Hemet. Thus, the Western Riverside County MSHCP 
provides significant conservation benefits to B. filifolia, including 
an MSHCP Conservation Area that protects core habitat areas and known 
occurrences, long-term management and monitoring of the preserve area, 
and special guidelines, policies, and survey requirements to ensure 
that significant occurrences of B. filifolia and its essential habitat 
are protected under the plan.

The Villages of La Costa Habitat Conservation Plan--San Diego County

    We excluded 208 ac (84 ha) of non-Federal lands within the Villages 
of La Costa HCP under section 4(b)(2) of the Act. Under this HCP, 
Fieldstone/La Costa Associates proposed to construct housing, limited 
commercial development, a school, a park, and various roadways on 1,252 
ac (507 ha) of the 1,955 ac (791ha) property at two locations within 
the City of Carlsbad. All Brodiaea filifolia on the site

[[Page 73846]]

occurred in the northwest parcel and was estimated to consist of 7,000 
individuals. The project was permitted to directly impact 1,190 
individuals (17 percent). As part of the HCP and section 10(a)(1)(B) 
permit, the following conservation measures were required and have been 
implemented for the long-term conservation of B. filifolia: (1) 
Permanent protection of approximately 5,800 individuals (83 percent) in 
a 702.5-ac (284 ha) natural open space preserve configured to provide 
connectivity to other significant areas of natural habitat; (2) long-
term management of conserved habitat; (3) monitoring; (4) habitat 
restoration and enhancement; (5) control of invasive plant species; (6) 
implementation of a fire management program; (7) access control 
measures; and (8) public education. The 702.5 ac preserve area contains 
the significant occurrence of B. filifolia identified in the proposed 
rule. Open space areas on Fieldstone/La Costa Associates lands are 
actively managed to maintain and enhance biological values by the 
Center for Natural Lands Management (Don Rideout, City of Carlsbad, 
pers. comm. 2004). In the Service's 1995 Biological and Conference 
opinion for this HCP, we found that the issuance of the incidental take 
permit and execution of the Implementing Agreement were not likely to 
jeopardize the continued existence of B. filifolia (Service 1995). We 
determined that impacts to this species and its habitat, when viewed in 
conjunction with the conservation measures required under the HCP and 
Implementing Agreement that will provide long-term benefits to B. 
filifolia, were not anticipated to result in an appreciable reduction 
in the numbers, reproduction, or distribution of this species 
throughout its range.

City of Carlsbad Habitat Management Plan--San Diego County

    We excluded approximately 414 ac (168 ha) of non-Federal lands 
within the City of Carlsbad HMP under section 4(b)(2) of the Act. The 
City of Carlsbad HMP is a subarea plan under the Northwestern San Diego 
County MHCP. The MHCP is a comprehensive, multi-jurisdictional planning 
program designed to create, manage, and monitor an ecosystem preserve 
in northwestern San Diego County. The MHCP preserve system is intended 
to protect viable populations of native plant and animal species and 
their habitats in perpetuity, while accommodating continued economic 
development and quality of life for residents of North 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 (USFWS and SANDAG 2003).
    The 10(a)(1)(B) permit for the City of Carlsbad HMP was issued on 
November 9, 2004, and the City was the first of the seven participating 
cities to receive a permit on their subarea plan. Brodiaea filifolia is 
a conditionally covered species under the HMP. Occurrences of B. 
filifolia exist within the boundaries of the HMP in the following 
identified areas: Calavera Heights, Lake Calavera, Fox-Miller, Carlsbad 
Oaks North, and Poinsettia. Under the HMP, all known populations of B. 
filifolia within existing preserve areas will be conserved at 100 
percent. All B. filifolia outside of already preserved areas are 
required to be consistent with the MHCP's narrow endemic policy which 
requires mitigation for unavoidable impacts and management practices 
designed to achieve no net loss of narrow endemic populations, occupied 
acreage, or population viability within Focused Planning Areas. In 
addition, cities cannot permit more than 5 percent gross cumulative 
loss of narrow endemic populations or occupied acreage within the 
Focused Planning Areas, and no more than 20 percent cumulative loss of 
narrow endemic locations, population numbers or occupied acreage 
outside of Focused Planning Areas (AMEC Earth and Environmental, Inc. 
2003). All conserved populations of B. filifolia will be incorporated 
into the preserve areas of the HMP. Additionally, the HMP includes 
provisions to manage the populations within the preserve areas in order 
to provide for the long-term conservation of the species.
    Occurrences of Brodiaea filifolia at Calavera Heights, Lake 
Calavera, Carlsbad Oaks North, and Poinsettia covered under the HMP 
were excluded from proposed critical habitat. However, occurrences on 
the Fox-Miller property were not excluded from the proposed designation 
because initially, the proposed hard-lined reserve on Fox-Miller did 
not meet the conditions for coverage of the species under the HMP. The 
property owners worked with the Service, CDFG, and the City of Carlsbad 
to develop a project that meets the HMP's standards for B. filifolia 
conservation. Ninety-five percent of the 19,100 plants on the property 
will be conserved. The site's preserve will be incorporated into the 
HMP's preserve system, partially restored to native grassland, and 
managed to sustain both the native grassland community and the 
population of B. filifolia. With modification of this hard-lined 
reserve and associated restoration and management actions, the City of 
Carlsbad will receive full coverage for B. filifolia. In our biological 
opinion for the issuance of the section 10(a)(1)(B) permit to the City 
of Carlsbad, we determined that the proposed action would not 
jeopardize the continued existence of B. filifolia. The preserve area 
includes the significant occurrence of B. filifolia identified in the 
proposed rule. Thus, we are excluding the Fox-Miller property (subunit 
7a) in this final rule.

City of Oceanside HMP--San Diego County

    We excluded approximately 41 ac (17 ha) of non-Federal lands in two 
subunits within the City of Oceanside under section 4(b)(2) of the Act. 
The City of Oceanside has accepted and committed to the conservation 
standards for Brodiaea filifolia established under the Northwestern San 
Diego MHCP. These conservation standards will be included in the City 
of Oceanside's HMP, currently in development.
    Subunit 6b (Mesa Drive) consists of 5 ac (2 ha) of primarily 
grasslands supporting an occurrence of Brodiaea filifolia estimated to 
contain 2,800 plants (Roberts in litt. 2004). The site is under the 
control of a home owner's association and includes a San Diego Gas & 
Electric utility easement. There are currently no development plans for 
the site, but under the conservation standards of the overarching, 
Northwestern San Diego County MHCP and agreed to by the City, no more 
than 20 percent of this population may be impacted.
    Subunit 6d (Taylor/Darwin) contains several properties under 
different ownership. The Taylor Estates property had 1,268 flowering 
Brodiaea filifolia plants identified in 2001. Seventy-one of these 
plants in the direct development footprint of the project were 
translocated elsewhere on the Taylor Estates property. These 
translocated individuals and the remaining plants will be managed and 
monitored in perpetuity. The Darwin portion of the subunit has also 
been partially developed. Approximately 6 ac (2 ha) of open space, 
which includes an occurrence of B. filifolia, has been preserved and 
will be managed in perpetuity. Thirty-six ac (15 ha) of extant valley 
and foothills grassland supporting a major population of B. filifolia, 
as defined by the MHCP, remain within the subunit. Under the 
conservation standards of the MHCP and agreed to by the City, 95 
percent of this population will be preserved and managed within the 
preserve system.

[[Page 73847]]

The preserve area includes the significant occurrence of B. filifolia 
identified in the proposed rule.

Orange County Southern Subregion NCCP/HCP

    We excluded approximately 1,158 ac (469 ha) of non-Federal lands in 
three subunits within the Southern Subregion of Orange County under 
section 4(b)(2) of the Act.
    Rancho Mission Viejo, the County of Orange, the Endangered Habitats 
League, the Natural Resources Defense Council, Inc., Sea and Sage 
Audubon Society, Laguna Greenbelt, Inc., and the Sierra Club reached an 
agreement on August 16, 2005, to settle a lawsuit challenging the 
November 2004, approval for a General Plan Amendment, Zone Change and 
Development Agreement issued by the County of Orange for Rancho Mission 
Viejo's Ranch Plan, a comprehensive land use and open space plan for 
the remaining 22,815 acres of undeveloped land owned by Rancho Mission 
Viejo, in Orange County. Rancho Mission Viejo's Ranch Plan is integral 
to the pending Orange County Southern Subregion NCCP/HCP, currently in 
development.
    We are excluding from critical habitat designation a total of 
approximately 899 ac (364 ha) of land owned by Rancho Mission Viejo in 
subunits 4c (Ca[ntilde]ada Gobernadora/Chiquita Ridgeline) and 4g 
(Cristianitos Canyon). Conservation identified in the Settlement 
Agreement assures that significant occurrences of Brodiaea filifolia 
will be preserved, including a major occurrence of over 4,000 plants in 
subunit 4c. Within subunit 4c, only small occurrences (generally less 
than 100 plants) are slated for development. Subunit 4g (Cristianitos 
Canyon) is primarily conserved as open space under the Settlement 
Agreement. Rancho Mission Viejo is allowed to establish and maintain 50 
ac (20 ha) of orchards in this subunit in areas that may impact some 
small occurrences of Brodiaea filifolia. The orchards will be 
consistent with the location of, or criteria for location of, the 
orchards established by an approved NCCP or, in the absence of an 
approved NCCP, located to avoid sensitive species and habitats. The 
Settlement Agreement also calls for the establishment of a long-term 
funding program for management and oversight of all defined open space 
areas placed under conservation easements.
    We are also excluding approximately 259 ac (105 ha) within subunit 
4b (Casper's Wilderness Park) in the City of San Juan Capistrano under 
4(b)(2) of the Act. Lands within this unit support an occurrence of 
Brodiaea filifolia of about 850 plants. The occurrence is protected 
from urban development and managed by the County of Orange's Division 
of Harbors, Beaches and Parks. The County of Orange is a landowner 
within and a major sponsor of the Southern Subregion NCCP/HCP. Thus, 
the major occurrences of B. filifolia (i.e., those with greater than 
850 plants) encompassed within the 1158 acres of essential habitat 
identified in the proposed rule are protected and included within the 
planning area boundary of the draft HCP or committed for conservation 
under the Settlement Agreement.
    The following analysis considers all five plans discussed above: 
(1) The Western Riverside County MSHCP; (2) the Villages of La Costa 
HCP; (3) the City of Carlsbad HMP; (4) the City of Oceanside HMP 
(pending); and (5) the Orange County Southern Subregion NCCP/HCP 
(pending).
(1) Benefits of Inclusion
    Overall, we believe that there is minimal benefit from designating 
critical habitat for Brodiaea filifolia within the Western Riverside 
County MSHCP, the Villages of La Costa HCP, the City of Carlsbad NCCP/
HCP, the City of Oceanside HMP (pending), and the Orange County 
Southern Subregion NCCP/HCP (pending) because, as explained above, 
almost all of the significant occurrences of B. filifolia are already 
protected and managed or will be protected and managed for the long-
term conservation of the species. Below we discuss benefits of 
inclusion of these 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 Brodiaea filifolia may provide a 
different level of protection under section 7(a)(2) of the Act that is 
separate from the obligation of a Federal agency to ensure that their 
actions are not likely to jeopardize the continued existence of B. 
filifolia. 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 4,883 ac (1,976 ha) of non-Federal lands as 
critical habitat may provide some additional Federal regulatory 
benefits for the species consistent with the conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. A 
benefit of inclusion would be the requirement of a Federal agency to 
ensure that their actions on these non-Federal lands do not likely 
result in the destruction or adverse modification of critical habitat. 
This additional analysis to determine destruction or adverse 
modification of critical habitat is likely to be small because the 
lands are not under Federal ownership and any Federal agency proposing 
a Federal action on these 4,883 ac (1,976 ha) of non-Federal lands 
would likely consider the conservation value of these lands as 
identified in the approved and pending HCPs and the Settlement 
Agreement and take the necessary steps to avoid jeopardy or the 
destruction or adverse modification of critical habitat.
    The areas excluded as critical habitat include vegetation 
communities supporting Brodiaea filifolia and an area 820 ft (250 m) 
around each occurrence to provide for pollinator movement and habitat. 
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 the 
``Effects of Critical Habitat Designation'' section. However, inasmuch 
as portions of these areas currently support B. filifolia, consultation 
for Federal activities which might adversely impact the species would 
be required even without the critical habitat designation. For the 
surrounding areas that may lack individual plants (i.e., areas not 
occupied by B. filifolia), the Federal action agency would need to 
determine if the proposed action would affect the species rather than 
determining whether 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 
areas not occupied by B. filifolia 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. However, 
approved and pending HCPs because almost all of the significant 
occurrences of B. filifolia are protected and managed or will be 
protected and managed for the long-term benefit of the species. Thus,

[[Page 73848]]

the approved and draft HCPs provide or will provide a greater level of 
protection and management for B. filifolia than the simple avoidance of 
adverse effects to critical habitat.
    If these areas were included as critical habitat, primary 
constituent elements would be protected from destruction or adverse 
modification by Federal actions using a conservation standard based on 
the Ninth Circuit Court's decision in Gifford Pinchot. This requirement 
would be in addition to the requirement that proposed Federal actions 
avoid likely jeopardy to the species' continued existence. However, for 
those areas supporting Brodiaea filifolia, consultation for activities 
which may adversely affect the species would be required, even without 
the critical habitat designation.
    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 Brodiaea 
filifolia by the public outreach and environmental impact reviews 
required under the National Environmental Policy Act (NEPA) for the 
Western Riverside County MSHCP, the Villages of La Costa HCP, the 
Northwestern San Diego County MHCP, and the City of Carlsbad HMP and 
the recognition by the County of Riverside et al., Fieldstone/La Costa 
Associates, the City of Carlsbad, the City of Oceanside, the County of 
Orange, and Rancho Mission Viejo of the presence of B. filifolia and 
the value of their lands for the conservation and recovery of the 
species. 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.
    Similarly, while the Settlement Agreement was not open to public 
comment, it results from an application requesting a General Plan 
Amendment, Zone Change and Approval of a Development Agreement that was 
subject to extensive public review through circulation of an 
Environmental Impact Report under CEQA. A major commitment to the 
conservation presented in the Settlement Agreement has been made public 
through media outreach. In addition, the Settlement Agreement and 
revisions made to the Ranch Plan Development Agreement are now being 
incorporated into the draft documents for the Orange County Southern 
Subregion NCCP/HCP. The planning process for this regional NCCP/HCP has 
been ongoing for several years and has included significant scoping and 
planning workshops with opportunity for public comment. The Settlement 
Agreement has now provided the impetus for the County of Orange, local 
jurisdictions, and Rancho Mission Viejo to complete the Southern 
Subregion NCCP/HCP. While the Draft HCP/EIS has not yet been released 
for public review, major portions of the document, including the 
conservation analysis sections are complete, and the Service and the 
CDFG are coordinating efforts to review the document. Thus, the 
Settlement Agreement and status of the preliminary Draft HCP/EIS 
provide us with reasonable assurance that this significant regional 
plan will be completed.
    The pending City of Oceanside HMP has a similar status to the 
Orange County Southern Subregion NCCP/HCP, in that a conservation 
strategy for Brodiaea filifolia has been agreed to and the planning 
documents, while not yet released for public review, are well underway. 
In addition, the Oceanside HMP is a Subarea Plan under the MHCP, which 
underwent public review through a joint CEQA/NEPA process; based on 
this, and the cooperation and efforts of the City of Oceanside to 
support the goals of the overarching MHCP, we have reasonable assurance 
that the City of Oceanside HMP will be completed.
    In addition there has been public notice and opportunity for 
comment on this proposal, which identified lands eligible for 
designation as critical habitat, and the economic analysis for the 
proposal, which also identified those lands. Consequently, we believe 
that the informational benefits are already provided even though these 
areas are not designated as critical habitat.
    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 Western Riverside County MSHCP, the 
Villages of La Costa HCP, the City of Carlsbad HMP, the pending City of 
Oceanside HMP, and the pending Orange County Southern Subregion NCCP/
HCP and associated Settlement Agreement provide for the conservation of 
Brodiaea filifolia through avoidance, minimization, and/or mitigation 
of impacts, management of habitat, and maintenance of watershed. These 
HCPs and the Settlement Agreement provide or will provide for 
protection of the PCEs for B. filifolia and address special management 
needs such as maintenance of clay soils and hydrology. Designation of 
critical habitat would therefore not provide as great a benefit to the 
species as the positive management measures in these HCPs and the 
Settlement Agreement.
    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, such as the Orange County Southern 
Subregion NCCP/HCP, 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

[[Page 73849]]

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 are 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.
    The signed Settlement Agreement represents a similar commitment to 
the conservation of Brodiaea filifolia as would be found in Draft NCCP/
HCP documents. The Settlement Agreement is integral to completion of 
the Orange County Southern Subregion NCCP/HCP. We believe designating 
critical habitat within the area covered by the signed Settlement 
Agreement would be viewed as a disincentive. Similarly, designating 
critical habitat within park lands designated as wilderness and owned 
and managed by the County of Orange, a major sponsor of the Orange 
County Southern Subregion NCCP/HCP, would be viewed as a disincentive 
to completing their regional plan.
    Another benefit from excluding these lands is to maintain the 
partnerships developed during the planning phase through the 
implementing phases of the HCPs. 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 within the HCP plan areas that may affect 
listed species would still require consultation under section 7 of the 
Act. HCPs typically provide for greater conservation benefits to a 
covered species than section 7 consultations because HCPs assure the 
long-term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5 Point Policy for HCPs (64 FR 35242) and the HCP ``'No 
Surprises''' regulation (63 FR 8859). Such assurances are typically not 
provided by section 7 consultations that, in contrast to HCPs, often do 
not commit the project proponent to long-term special management or 
protections. Thus, a consultation typically does not accord the lands 
it covers the extensive benefits an HCP provides. The development and 
implementation of 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.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We have reviewed and evaluated the exclusion of critical habitat 
for Brodiaea filifolia from approximately 4,883 ac (1,976 ha) of non-
Federal lands within the approved Western Riverside County MSHCP, the 
Villages of La Costa HCP, and the City of Carlsbad HMP, and the pending 
City of Oceanside HMP and pending Orange County Southern Subregion 
NCCP/HCP with its associated Settlement Agreement. 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 Brodiaea filifolia within these lands 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 including these 4,883 ac (1,976 
ha) of non-Federal lands as critical habitat are lessened because of 
the significant level of conservation provided to B. filifolia under 
the approved Western Riverside County MSHCP, the Villages of La Costa 
HCP, and the City of Carlsbad HMP; the pending City of Oceanside HMP; 
and the pending Orange County Southern Subregion NCCP/HCP and 
associated Settlement Agreement (conservation of occupied and potential 
habitat, monitoring, and maintenance of soils and hydrology). In 
contrast, the benefits of excluding these 4,883 ac (1,976 ha) of non-
Federal lands as critical habitat are increased because of the high 
level of cooperation by the County of Riverside et al., Fieldstone/La 
Costa Associates, the City of Carlsbad, the City of Oceanside, the 
County of Orange, Rancho Mission Viejo, the 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 4,883 ac (1,976 ha) of non-
Federal lands will not result in extinction of Brodiaea filifolia since 
most of these lands are protected and managed or will be protected and 
managed for the benefit of this species pursuant to the approved 
Western Riverside County MSHCP, the Villages of La Costa HCP, and the 
City of Carlsbad HMP; the pending City of Oceanside HMP; and the 
pending Orange County Southern Subregion NCCP/HCP and the associated 
Settlement Agreement. These approved and pending HCPs and the 
Settlement Agreement include specific conservation objectives, 
avoidance and minimization measures, and management that exceed any 
conservation value provided as a result of a critical habitat 
designation.
    Some small occurrences of Brodiaea filifolia within approximately 
311 ac (ha) of privately owned lands in subunit 4c (Gobernadora/
Chiquita Ridgeline) are proposed for development as part of Rancho 
Mission Viejo's development plan. These lands are covered by the signed 
Settlement Agreement. Any Federal Agency authorizing an action to 
develop these lands (e.g., USCOE) would likely consider the 
conservation actions in the Settlement Agreement as appropriate 
mitigation for loss of B. filifolia habitat. We believe the loss of 
these small occurrences of this species is not likely to result in 
extinction of the species). Likewise, the approximately 588 acres (238 
ha) of privately owned lands containing features essential to the 
conservation of B. filifolia in subunit 4g (Cristianitos Canyon) will 
be protected and managed by Rancho

[[Page 73850]]

Mission Viejo as stipulated in the Settlement Agreement. This level of 
protection will occur as a result of the Settlement Agreement and thus 
regardless of whether these lands are excluded as critical habitat. The 
occurrence of B. filifolia in subunit 4b (Casper's Wilderness Park) is 
protected and is within the pending Orange County Southern Subregion 
NCCP/HCP plan boundary. Thus, we believe that exclusion of this 
occurrence as critical habitat will not result in extinction of the 
species.
    In our Biological and Conference Opinions for the issuance of a 
section 10(a)(1)(B) permit for the Western Riverside County MSHCP, the 
Villages of La Costa HCP, and the City of Carlsbad HMP, the Service 
concluded that the proposed permit issuances would not appreciably 
reduce the likelihood of the survival and recovery of Brodiaea 
filifolia because of the avoidance and minimization measures, long-term 
management, and commitment to a preserve system. 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 B. filifolia 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 major occurrences of Brodiaea filifolia within 
the Western Riverside County MSHCP, the Villages of La Costa HCP, the 
City of Carlsbad HMP, and the pending Oceanside HMP and within lands 
covered by the Settlement Agreement and within Casper's Wilderness Park 
are or will be 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 4,883 
ac (1,976 ha) within lands owned by the County of Orange and Rancho 
Mission Viejo and within the Western Riverside County MSHCP, the 
Villages of La Costa HCP, the City of Carlsbad HMP, and the pending 
City of Oceanside HMP will not result in extinction of B. filifolia.

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 publication of the proposed critical habitat rule, an 
analysis of the economic impacts of proposed critical habitat for 
Brodiaea filifolia was prepared. The notice of availability (NOA) of a 
draft economic analysis (DEA) was announced in the Federal Register on 
October 6, 2005 (70 FR 58361). Copies of the draft economic analysis 
were available for downloading from the Internet at http://carlsbad.fws.gov, or by contacting the Carlsbad Fish and Wildlife 
Office directly. In the NOA, we announced the reopening of the comment 
period on proposed critical habitat and solicited public review and 
comment. We accepted comments until October 20, 2005.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for Brodiaea filifolia. 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. The 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 Brodiaea filifolia 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.
    Pre-designation costs include those Brodiaea filifolia-related 
conservation activities associated with sections 4, 7, and 10 of the 
Act that have accrued since the time that Brodiaea filifolia was listed 
as threatened (63 FR 54975; October 13, 1998), but prior to the 
designation of critical habitat. Total pre-designation costs associated 
with lands proposed as critical habitat are estimated to be $2.9 
million to $3.0 million on a present value basis and $2.4 million to 
$2.5 million expressed in undiscounted dollars. Pre-designation costs 
associated with areas excluded from the proposed designation are 
estimated to be $110,000 to $180,000 on a present value basis and 
$100,000 to $150,000 expressed in undiscounted dollars.
    Post-designation effects would include likely future costs 
associated with Brodiaea filifolia conservation efforts in the 20-year 
period following the final designation of critical habitat (effectively 
2005 through 2024). If critical habitat were designated as proposed, 
total costs were estimated to be $12.2 million to $14.7 million on a 
present value basis and $12.2 million to $16.9 million expressed in 
undiscounted dollars (an annualized cost of $0.6 to $0.8 million 
annually). If all habitat with features essential to the conservation 
of the species were designated critical habitat in this final rule, 
total costs would be expected to range between $24.5 and $43.6 million 
over the next 20 years (an annualized cost of $1.2 to $2.2 million). 
However, due to significant reductions made to critical habitat in this 
final rule (see ``Summary of Changes from Proposed Rule''), the 
estimated costs for the units actually designated are estimated to 
range between $1.0 and $3.3 million over the next 20 years expressed in 
undiscounted dollars.
    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 $24.5 million to $43.6 million over the nest 20 years (an 
annualized cost of $1.2 million to $2.2 million), we do not anticipate 
that this final rule will have

[[Page 73851]]

an annual effect on the economy of $100 million or more or affect the 
economy in a material way. Due to the time line for publication in the 
Federal Register, the Office of Management and Budget (OMB) did not 
formally review the proposed rule.
    The availability of the draft economic analysis was announced in 
the Federal Register on October 6, 2005 (70 FR 58361), and was made 
available for public review and comment.

Regulatory Flexibility Act (5 U.S.C. 601 et. seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency is required to publish a notice 
of rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (i.e., small 
businesses, small organizations, and small government jurisdictions). 
However, no regulatory flexibility analysis is required if the head of 
the agency certifies the rule will not have a significant economic 
impact on a substantial number of small entities.
    According to the Small Business Administration (SBA), small 
entities include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents, as well as small businesses (13 CFR 121.201). Small 
businesses include manufacturing and mining concerns with fewer than 
500 employees, wholesale trade entities with fewer than 100 employees, 
retail and service businesses with less than $5 million in annual 
sales, general and heavy construction businesses with less than $27.5 
million in annual business, special trade contractors doing less than 
$11.5 million in annual business, and agricultural businesses with 
annual sales less than $750,000. To determine if potential economic 
impacts to these small entities are significant, we considered the 
types of activities that might trigger regulatory impacts under this 
designation as well as types of project modifications that may result. 
In general, the term significant economic impact is meant to apply to a 
typical small business firm's business operations.
    To determine if this rule to designate critical habitat for 
Brodiaea filifolia 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.
    The designation of critical habitat requires Federal agencies to 
consult with us if activities they authorize, fund, or carry out 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 Brodiaea 
filifolia 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 draft economic analysis of this 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. Of these potentially 
affected activities, impacts to small entities are not anticipated for 
the following reasons: 1. Military lands management: The analysis 
predicts that the Department of Defense (DoD), which manages Marine 
Corps Base Camp Pendleton (EH units 15 to 19), will experience 
administrative and project modification costs associated with Brodiaea 
filifolia conservation activities. DoD does not meet SBA's definition 
of a small government. 2. Transportation, utilities, and flood control: 
The analysis estimates that additional project modification costs 
associated with B. filifolia conservation activities are likely for 
transportation project undertaken by CALTRANS, the Transportation 
Corridor Agencies (TCA), and the Riverside County Transportation 
Commission, utility projects undertaken by San Diego Gas & Electric, 
and the San Jacinto River Flood Control Project of the Riverside County 
Flood Control and Water Conservation District. None of these five 
entities are small businesses or governments as defined by SBA and, 
therefore, are not considered further in this screening analysis. 3. 
Public and conservancy lands management: The United States Forest 
Service manages Cleveland National Forest; Orange County's Department 
of Harbors, Beaches and Parks manages Aliso-Wood Canyon Regional Park 
and Casper's Regional Park; and the Glendora Community Conservancy 
manages the Conservancy of the same name. With the exception of the 
Glendora Community Conservancy, these entities exceed the threshold 
established for small governments (service population of 50,000 or 
less). Accordingly, this screening analysis focuses on economic impacts 
related to residential development and the management of Glendora 
Community Conservancy.
    The final 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 Los Angeles, Orange, 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.
    The DEA (See Section 3.2.1) estimates that 390 acres within areas 
originally proposed for critical habitat designation are projected to 
be developed over the next 20 years. The analysis assumes that as a 
result of Brodiaea filifolia conservation activities, 95 percent of the 
acres are conserved, and the plant is salvaged from the remaining five 
percent. As a result, landowners of 100 percent of these acres bear 
costs of B. filifolia conservation activities.
    To estimate the number of landowners potentially impacted by B. 
filifolia conservation activities, the analysis estimates the average 
parcel size within proposed units/subunits in each county that contains 
habitat with features essential to the conservation of the species and 
compares it to the

[[Page 73852]]

estimate of affected acres in these areas. At the aggregate county 
level, in units proposed for inclusion, one individual may be impacted 
in Los Angeles County, one individual may be impacted in San Bernardino 
County, 22 individuals may be impacted in Orange County, and 27 
individuals may be impacted in San Diego County. Note that this 
estimate may be understated if habitat partially overlaps several 
parcels or overstated if one person owns more than one parcel with B. 
filifolia.
    The loss in land value experienced by an individual landowner will 
depend on how much of a parcel is inhabited by Brodiaea filifolia, the 
extent to which development activities can be planned around sensitive 
areas, and the existence of alternative uses of the property that do 
not threaten the plant or its habitat. For example, if B. filifolia 
exist on only a small portion of the parcel that can be incorporated 
into existing open space requirements, then a small percentage of the 
land value is lost. However, if B. filifolia are found throughout the 
parcel, most or all of development value of that parcel may be lost. In 
such a circumstance, the parcel may continue to derive value from 
other, nondevelopment-oriented uses.

Effects on Homebuyers and Small Construction Firms

    The DEA (See Section 3.2.2) estimates a potential shift in the 
supply of housing resulting from increased land scarcity. Scenario Two 
assumes that as a result of on-site conservation requirements, less 
land is available for development, and therefore fewer new homes are 
built. Under this scenario, small construction firms may be indirectly 
affected. This analysis uses a methodology used by Charles River 
Associates (CRA) to estimate the potential impact to small construction 
firms. The analysis uses the following steps to estimate the number of 
firms potentially affected:
    (1) The analysis estimates the number of new homes typically built 
by a small construction firm in one year. Average annual revenues for a 
small construction firms are $694,000. Using the average construction 
costs for a single family home of $236,000 obtained from CRA's vernal 
pool analysis, a small firm is assumed to build on average three houses 
a year ($694,000/$236,000 = 2.9).
    (2) Next, the analysis estimates the number of homes that would 
have been built by small businesses in the absence of Brodiaea 
filifolia conservation efforts. As described in Section 3.2.2 of the 
DEA, the analysis predicts 316 homes will not be built in cities with 
habitat proposed for designation (summarized in Exhibit A-2 of the 
DEA). In an analysis of building permits in Sacramento County conducted 
by CRA, researchers determined that 22 percent of permits for single 
family dwellings were requested by small businesses. This analysis 
assumes that a similar proportion of new home construction activity is 
conducted by small construction firms in the five Southern California 
counties included in this analysis. As shown in Exhibit A-2 of the DEA, 
multiplying 22 percent by the number of homes not built in each county 
provides an estimate of lost home construction for small firms.
    (3) Next, using the number of homes not built by small firms, the 
analysis estimates the number of small businesses affected. Results of 
this calculation are presented in Exhibit A-2. At the high-end, 
assuming that each lost house would have been built by a separate firm, 
the number of firms potentially affected is equal to the number of lost 
homes. For a low-end estimate, the number of houses not built is 
divided by the average number of houses built per year by small firms 
(three houses). In summary, in a given municipality containing critical 
habitat, between one and 18 small construction firms may be affected 
annually by Brodiaea filifolia conservation activities. In Hemet, 
Moreno Valley, and Perris, where habitat is excluded from critical 
habitat, approximately nine to 82 small firms could be affected if 
habitat were designated. The impact to affected small businesses is 
estimated to be between one-third and all of their revenues for the 
year, depending on the estimate of the number of businesses affected. 
Note that the impact to small construction firms may be overstated. As 
discussed in Section 3 of the DEA, the analysis of lost housing units 
is partial equilibrium in nature (e.g., does not consider substitution 
of displaced development to other nearby areas), which is consistent 
with the best currently available empirical information. If, instead, 
homes not built in these municipalities are constructed in neighboring 
communities unaffected by B. filifolia conservation activities, the 
impact to small construction firms is likely to be less than presented 
in Exhibit A-2. As a result, impacts to these firms are more likely 
overstated than understated in this analysis.
    Based on these data, we have determined that this designation will 
not result in a significant economic impact on a substantial number of 
small entities, in particular to land developers or farmers in Los 
Angeles, San Bernardino, Orange, Riverside, and San Diego counties. 
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 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 the 
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

[[Page 73853]]

Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance; or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. Non-Federal entities that receive Federal 
funding, assistance, permits, or otherwise require approval or 
authorization from a Federal agency for an action, may be indirectly 
impacted by the designation of critical habitat. However, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply; nor would 
critical habitat shift the costs of the large entitlement programs 
listed above on to State governments.
    (b) The U.S. Forest Service manages Angeles National Forest and 
Cleveland National Forest (subunits 1b, 5a and 5b); Orange County's 
Department of Harbors, Beaches and Parks manages Aliso and Woods Canyon 
Regional Park (unit 3) and Casper Wilderness Park (unit 4); and the 
Glendora Community Conservancy manages the Conservancy (subunit 1a) of 
the same name. With the exception of the Glendora Community 
Conservancy, these entities exceed the threshold established for small 
governments (service population of 50,000 or less). Therefore, the 
Glendora Community Conservancy is the only land manager considered in 
this screening analysis.
    The DEA (See Section 6) estimates potential costs to public and 
private land management entities. Of the entities analyzed, the 
Glendora Community Conservancy is the only small entity. This section 
estimates potential impacts of Brodiaea filifolia conservation 
activities to the Conservancy.
    The Conservancy's overall annual budget ranges from $15,000 to 
$30,000 and includes such elements as insurance, discounted land taxes, 
weed abatement, and trail maintenance. The analysis estimates that 
potential future costs associated with Brodiaea filifolia conservation 
activities at the Conservancy may range from $1,600 to $2,600 on an 
annualized basis (assuming a seven percent discount rate). These costs 
represent approximately 11 percent to 17 percent of annual expenditures 
assuming the low-end estimate of the annual budget ($15,000) and 5 
percent to 9 percent assuming the high-end estimate ($30,000). 
Considering that the Glendora Community Conservancy is in the business 
of conservation this is not an unexpected expenditure for the 
Conservancy. Consequently, we do not believe that the designation of 
critical habitat for B. filifolia will significantly or uniquely affect 
any small governmental entity addressed in the DEA. As such, a Small 
Government Agency Plan is not required.

Federalism

    In accordance with Executive Order 13132, this rule does not have 
significant Federalism effects and, therefore, a Federalism assessment 
is not required. In keeping with Department of the Interior policies, 
we requested information from, and coordinated the development of the 
proposed critical habitat designation with appropriate State resource 
agencies in California. We anticipate that the designation of critical 
habitat in the areas currently occupied by Brodiaea filifolia will 
impose no additional significant restrictions beyond those currently in 
place and, therefore, should have little incremental impact on State 
and local governments and their activities.
    The designation of critical habitat may have some benefit to the 
State and local resource agencies in that the areas and features 
essential to the conservation of this species are more clearly defined, 
and the primary constituent elements of the habitat necessary to the 
conservation of this species are specifically identified. While this 
definition and identification does not alter where and what federally 
sponsored activities may occur, it may assist local governments in 
long-range planning (rather than waiting for case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior=s Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and does meet the requirements of 
sections 3(a) and 3(b)(2) of the Order. We are designating critical 
habitat in accordance with provisions of the Endangered Species Act. 
The rule uses standard property descriptions and identifies the primary 
constituent elements within the designated areas to assist the public 
in understanding the habitat needs of Brodiaea filifolia.

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

    This rule does not contain new or revised information collections 
for which OMB approval is required under the Paperwork Reduction Act. 
Information collections associated with certain Act permits are covered 
by an existing OMB approval and are assigned OMB Control No. 1018-0094, 
which expires September 30, 2007. This includes FWS Forms 3-200-55 and 
3-200-56. 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 the 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 Brodiaea 
filifolia. Therefore, critical habitat has not been designated on 
Tribal lands.

References Cited

    A complete list of all references cited herein is available, upon 
request, from

[[Page 73854]]

the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES 
section).

Author

    This rule was prepared by staff at 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

0
Accordingly, the Service hereby amends part 17, subchapter B of chapter 
I, title 50 of the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec.  17.12(h), revise the entry in the table for ``Brodiaea 
filifolia'' under ``FLOWERING PLANTS,'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name               Common names                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Brodiaea filifolia...............  Thread-leaved         U.S.A. (CA)........  Liliaceae--Lily....  T                       650     17.96(a)          NA.
                                    brodiaea.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. In Sec.  17.96(a), add critical habitat for Brodiaea filifolia, in 
alphabetical order under Family Liliaceae to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Liliaceae: Brodiaea filifolia (Thread-leaved brodiaea)
    (1) Critical habitat units are depicted for Brodiaea filifolia on 
the maps below.
    (2) The primary constituent elements of critical habitat for 
Brodiaea filifolia consist of the following:
    (i) Appropriate soil series and associated vegetation at suitable 
elevations of either:
    (A) Clay soil series of various origins (e.g., Alo, Altamont, Auld, 
Diablo), clay lenses found as unmapped inclusions in other soil series, 
or within loamy soils underlain by a clay subsoil (e.g., Fallbrook, 
Huerhuero, Las Flores) that generally occur on mesas and gentle to 
moderate slopes, or in association with vernal pools, between the 
elevations of 100 ft (30 m) and 2,500 ft (765 m) and support open 
native or annual grassland communities, open coastal sage scrub or 
coastal sage scrub-chaparral communities; or
    (B) Silty loam soil series underlain by a clay subsoil or caliche 
that are generally poorly drained, moderately to strongly alkaline, 
granitic in origin (e.g., Domino, Grangeville, Waukena, Willows), that 
generally occur in low-lying areas and floodplains, often in 
association with vernal pool or playa complexes, between the elevations 
of 600 ft (180 m) and 1,800 ft (550 m) and support native, annual, or 
alkali grassland or scrub communities; or
    (C) Clay loam soil series (e.g., Murrieta) underlain by heavy clay 
loams or clays derived from olivine basalt lava flows, that generally 
occur on mesas and gentle to moderate slopes between the elevations of 
1,700 ft (520 m) and 2,500 ft (765 m) and support native or annual 
grassland or oak woodland savannah communities associated with basalt 
vernal pools; or
    (D) Sandy loam soils derived from basalt and granodiorite parent 
materials, deposits of gravel, cobble, and boulders, or hydrologically 
fractured weathered granite in intermittent streams and seeps that 
support open riparian and freshwater marsh communities associated with 
intermittent drainages, floodplains, and seeps generally between 1,800 
ft (550 m) and 2,500 ft (765 m).
    (ii) Areas with an intact surface and subsurface structure not 
permanently altered by anthropogenic land use activities (e.g., deep, 
repetitive disking; grading). These features as well as associated 
physical processes (e.g., full sunlight exposure) are essential to 
maintain those substrate and vegetation types where Brodiaea filifolia 
is found and to support pollinator assemblages necessary to facilitate 
gene flow within and among populations of B. filifolia.
    (iii) Critical habitat does not include existing features and 
structures, and the land beneath them, such as open water, 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.
    (3) Index map of critical habitat units for Brodiaea filifolia 
(Thread-leaved brodiaea) follows:
BILLING CODE 4310-55-P

[[Page 73855]]

[GRAPHIC] [TIFF OMITTED] TR13DE05.000


[[Page 73856]]


    (4) All map units are in the Universal Transverse Mercator (UTM) 
coordinate system, North American Datum of 1927 (NAD27) projection.
    (5) Map Unit 1: Los Angeles, County, California, from USGS 1:24,000 
quadrangle map Glendora California.
    (i) Subunit 1a: Glendora, Los Angeles County, California; land 
bounded by the following UTM coordinates (E, N): 422400, 3779900; 
422400, 3779800; 422500, 3779800; 422500, 3779700; 422600, 3779700; 
422600, 3779300; 422400, 3779300; 422400, 3779200; 422100, 3779200; 
422100, 3779300; 422000, 3779300; 422000, 3779500; 421900, 3779500; 
421900, 3779800; 422000, 3779800; 422000, 3779900; returning to 422400, 
3779900.
    (ii) Map of critical habitat Subunit 1a for Brodiaea filifolia 
(Thread-leaved brodiaea) follows:

[[Page 73857]]

[GRAPHIC] [TIFF OMITTED] TR13DE05.001


[[Page 73858]]


    (iii) Subunit 1b: San Dimas; land bounded by the following UTM 
coordinates (E, N): 425300, 3778600; 425300, 3778500; 425400, 3778500; 
425400, 3778400; 425500, 3778400; 425500, 3777900; 425400, 3777900; 
425400, 3777800; 425300, 3777800; 425300, 3777700; 425200, 3777700; 
425200, 3777500; 424700, 3777500; 424700, 3777600; 424600, 3777600; 
424600, 3778200; 424700, 3778200; 424700, 3778500; 424900, 3778500; 
424900, 3778600; returning to 425300, 3778600.
    (iv) Map of critical habitat Subunit 1b for Brodiaea filifolia 
(Thread-leaved brodiaea) follows:

[[Page 73859]]

[GRAPHIC] [TIFF OMITTED] TR13DE05.002


[[Page 73860]]


    (6) Map Unit 5: Northern San Diego County, California, from USGS 
1:24,000 quadrangle maps Margarita Peak, and Fallbrook, California.
    (i) Subunit 5b: Devil Canyon, San Diego County; land bounded by the 
following UTM coordinates (E, N): 465000, 3702200; 464800, 3702200; 
464800, 3702100; 464500, 3702100; 464500, 3702200; 464300, 3702200; 
464300, 3702700; 464400, 3702700; 464400, 3702800; 464800, 3702800; 
464800, 3702700; 464900, 3702700; 464900, 3702600; 465000, 3702600; 
returning to 465000, 3702200; and land bounded by 465000, 3702200; 
465166, 3702200; 465160, 3701865; 465246, 3701865; 465259, 3701960; 
465500, 3701955; 465500, 3701500; 465400, 3701500; 465400, 3701300; 
465300, 3701300; 465300, 3701200; 464800, 3701200; 464800, 3701300; 
464700, 3701300; 464700, 3701700; 464800, 3701700; 464800, 3702000; 
464900, 3702000; 464900, 3702100; 465000, 3702100; returning to 465000, 
3702200; and land bounded by 465272, 3702200; 465400, 3702200; 465400, 
3702100; 465500, 3702100; 465500, 3702078; 465261, 3702085; 465264, 
3702184; returning to 465272, 3702200.
    (ii) Map of critical habitat Subunit 5b for Brodiaea filifolia 
(Thread-leaved brodiaea), follows:

[[Page 73861]]

[GRAPHIC] [TIFF OMITTED] TR13DE05.003


[[Page 73862]]


    (7) Map Unit 8: San Marcos, San Diego County, California, from USGS 
1:24,000 quadrangle map San Marcos, California.
    (i) Subunit 8d: Upham; land bounded by the following UTM 
coordinates (E, N): 481588, 3666600; 481600, 3666600; 481600, 3666627; 
481672, 3666791; 482059, 3666627; 481935, 3666339; 481905, 3666339; 
481800, 3666382; 481800, 3666400; 481758, 3666400; 481540, 3666490; 
returning to 481588, 3666600; and land bounded by: 481765, 3666200; 
481800, 3666200; 481800, 3666266; 481893, 3666230; 481892, 3666214; 
481890, 3666191; 481866, 3666173; 481848, 3666144; 481729, 3665850; 
481700, 3665849; 481700, 3665900; 481655, 3665990; 481635, 3666053; 
481622, 3666069; 481612, 3666077; 481611, 3666077; 481600, 3666100; 
481561, 3666100; 481401, 3666167; 481454, 3666290; 481750, 3666160; 
returning to 481765, 3666200.
    (ii) Map of critical habitat Subunit 8d for Brodiaea filifolia 
(Thread-leaved brodiaea) follows:

[[Page 73863]]

[GRAPHIC] [TIFF OMITTED] TR13DE05.004


    Dated: November 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23693 Filed 12-12-05; 8:45 am]
BILLING CODE 4310-55-C