73820 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 (threadleaved brodiaea) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the Fish and Wildlife 

Service (Service), are designating 

critical habitat for the federally 

threatened Brodiaea filifolia (threadleaved 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 

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

73822 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 longterm 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 reevaluation 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). 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73823 

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 reevaluation, 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 

73824 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

‘‘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 

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

73826 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 Flowerloving 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. 

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

73828 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 

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

73830 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 developmentrelated 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 nonresidential 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. 

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

73832 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 

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

73834 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 reevaluation, 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 longterm 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: Can ̃ada Gobernadora/Chiquita Ridgeline ................................... ................................. 311; 126 ......................... 0 

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 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73835 

Critical habitat unit/subunit County Proposed critical habitat 

(ac; ha) 

Final critical habitat 

(ac; ha) 

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 

73836 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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, peerreviewed 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 selfincompatible (incapable of producing 

seeds with pollen from flowers on the 

same plant or from flowers on plants 

with the same allele at the selfincompatibility locus), requiring crosspollination 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 selfincompatible alleles. This means that 

effective pollination for seed set 

requires pollen dispersal over a distance 

between plants with different selfincompatible 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 (diggerbee). 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 

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

73838 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 crosspollination. 

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 lowlying 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 selfincompatible 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 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 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; SteffanDewenter 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 offroad 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# 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# 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., nonnative 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 

73840 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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. 

Critical habitat unit & subunit County Private 

(ac; ha) 

*Federal 

(ac; ha) 

Total 

(ac; 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. 

County 

Total habitat 

with features 

essential to 

the conservation of the 

species 

Habitat exempted/excluded from 

the final designation 

Designated 

critical habitat 

Los Angeles ...................................................................................................................................... 294 ac ..........

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

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

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

294 ac. 

119 ha. 

San Bernardino ................................................................................................................................ 0 ac ..............

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

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

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

0 ac. 

0 ha. 

Orange .............................................................................................................................................. 1,158 ac .......

469 ha ..........

1,158 ac .......

469 ha ..........

0 ac. 

0 ha. 

Riverside ........................................................................................................................................... 3,062 ac .......

1,239 ha .......

3,062 ac .......

1,239 ha .......

0 ac. 

0 ha. 

San Diego ......................................................................................................................................... 1884 ac ........

762 ha ..........

1580 ac ........

639 ha ..........

303 ac. 

123 ha. 

Total .......................................................................................................................................... 6,397 ac .......

2589 ha ........

5800 ac ........

2,347 ha .......

597 ac. 

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 

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

73842 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 nonFederal 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 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 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 nonwasting 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 semiannual 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 GISVerDate Aug<31>2005 00:25 Dec 13, 2005 Jkt 208001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4700 E:\FR\FM\13DER2.SGM 13DER2
73844 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 nonFederal 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 the conservation of Brodiaea filifolia ............................................................................ 6,397 ac. 

2,589 ha. 

Habitat excluded from the final critical habitat designation under section 4(b)(2) of the Act: 

Western Riverside County Multiple Species Habitat Conservation Plan (Riverside County) ....................................................... 3,062 ac. 

1,239 ha. 

Villages of La Costa Habitat Conservation Plan (San Diego County) .......................................................................................... 208 ac. 

84 ha. 

City of Carlsbad Habitat Management Plan (San Diego County) ................................................................................................. 414 ac. 

368 ha. 

Pending City of Oceanside Subarea Plan (San Diego County) .................................................................................................... 41 ac. 

17 ha. 

Pending Orange County Southern Subregion Natural Community Conservation Plan/Habitat Conservation Plan (Orange 

County).

1,158 ac. 

469 ha. 

Habitat exempted from critical habitat designation under section 4(a)(3) of the Act: Marine Corps Base, Camp Pendleton 

(San Diego County).

917 ac. 

371 ha. 

Total habitat containing features essential to the conservation of Brodiaea filifolia excluded or exempted from final critical habitat.5,800 ac. 

2,347 ha. 

Total habitat containing features essential to the conservation of Brodiaea filifolia designated as final critical habitat ....... 597 ac. 

242 ha. 

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 

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

73846 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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, multijurisdictional 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 FoxMiller 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 FoxMiller 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. 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 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 (Can ̃ 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 longterm 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 nonFederal lands do not likely result in the 

destruction or adverse modification of 

critical habitat. This additional analysis 

to determine destruction or adverse 

modification of critical habitat is likely 

to be small because the lands are not 

under Federal ownership and any 

Federal agency proposing a Federal 

action on these 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, 

73848 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 

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

73850 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 predesignation 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. Predesignation 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 

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

73852 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 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 nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply; nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(b) 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 caseby-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 

73854 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

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 

■ 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] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

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

table for ‘‘Brodiaea filifolia’’ under 

‘‘FLOWERING PLANTS,’’ to read as 

follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common names 

FLOWERING PLANTS

* * * * * * * 

Brodiaea filifolia ....... Thread-leaved 

brodiaea.

U.S.A. (CA) ............. Liliaceae—Lily ........ T 650 17.96(a) NA. 

* * * * * * * 

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

Brodiaea filifolia, in alphabetical order 

under Family Liliaceae to read as 

follows: 

§ 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 lowlying 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 

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73856 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

(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: 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73857 


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73858 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

(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: 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73859 


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73860 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

(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: 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73861 


ER13DE05.003</GPH>
73862 Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 

(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: 

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / Rules and Regulations 73863 

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 


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