50406 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS-R8-ES-2008-0034; 92210-1117-0000- 

B4] 

RIN 1018–AV24 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the Bay Checkerspot 

Butterfly (Euphydryas editha 

bayensis) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating revised critical habitat for 

the Bay checkerspot butterfly 

(Euphydryas editha bayensis) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

18,293 acres (ac) (7,403 hectares (ha)) 

fall within the boundaries of the revised 

critical habitat designation for the Bay 

checkerspot butterfly. The revision to 

critical habitat is located in San Mateo 

and Santa Clara Counties, California. 

This final revised designation therefore 

constitutes a reduction of 1,453 ac (588 

ha) from our 19,746 ac (7,990 ha) 

proposed revised designation of critical 

habitat for the Bay checkerspot butterfly 

published on August 22, 2007. 

DATES: This rule becomes effective on 

September 25, 2008. 

ADDRESSES: The final rule, final 

economic analysis, and map of critical 

habitat will be available on the Internet 

at http://www.regulations.gov and 

http://www.fws.gov/sacramento. 

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 Sacramento Fish and 

Wildlife Office, 2800 Cottage Way, Suite 

W-2605, Sacramento, CA 95825; 

telephone 916-414-6600. 

FOR FURTHER INFORMATION CONTACT: 

Field Supervisor, Sacramento Fish and 

Wildlife Office, 2800 Cottage Way, 

Room W-2605, Sacramento, CA 95825; 

telephone 916-414-6600; facsimile 916- 

414-6712. If you use a 

telecommunications device for the deaf 

(TDD), call the Federal Information 

Relay Service (FIRS) at 800-877-8339. 

SUPPLEMENTARY INFORMATION: 

Background 

This final rule addresses revised 

critical habitat for the Bay checkerspot 

butterfly. For additional information on 

the taxonomy, biology, and ecology of 

the Bay checkerspot butterfly, refer to 

the final listing rule and revised 

proposed critical habitat rule published 

in the Federal Register on September 

18, 1987 (52 FR 35366) and August 22, 

2007 (72 FR 48178), respectively. It is 

our intention to discuss only those 

topics directly relevant to the revised 

designation of critical habitat in this 

final rule. 

Previous Federal Actions 

On April 30, 2001 (66 FR 21450), we 

published a final rule designating 

approximately 23,903 ac (9,673 ha) of 

critical habitat for the Bay checkerspot 

butterfly in San Mateo and Santa Clara 

Counties, California. On March 30, 

2005, the Home Builders Association of 

Northern California filed suit against the 

Service challenging critical habitat for 

the Bay checkerspot butterfly and other 

species (Home Builders Association of 

Northern California v. U.S. Fish and 

Wildlife Service cv-01363-LKK-JFM.). 

On February 24, 2006, a settlement 

agreement was reached that requires the 

Service to reevaluate the final critical 

habitat rule in light of the standards for 

designating critical habitat set forth in 

Home Builders Association of Northern 

California v. U.S. Fish and Wildlife 

Service, 268 F. Supp. 2d 1197 (E.D. Cal 

2002) and any applicable law. In 

addition, the settlement stipulated that 

a revised proposed rule be submitted for 

publication on or before August 14, 

2007, and a final revised rule be 

submitted for publication on or before 

August 14, 2008. This final designation 

is being completed and published in the 

Federal Register in compliance with 

that settlement agreement. On August 

22, 2007 (72 FR 48178), we published a 

revised proposed rule to designate 

approximately 19,746 ac (7,990 ha) in 

San Mateo and Santa Clara Counties, 

California. On April 15, 2008 (73 FR 

20237), we published a draft economic 

analysis (DEA) for the proposed rule to 

revise critical habitat. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed rule to revise 

critical habitat for the Bay checkerspot 

butterfly and the associated DEA. 

During the comment period, we 

requested all interested parties to 

submit comments or information related 

to the proposed revision to the critical 

habitat designation, including, but not 

limited to, the following: information 

regarding dispersal areas, species 

occurrence information (specifically 

recent occupancy of the Pulgas Ridge 

Unit) and distribution, land use 

designations that may affect critical 

habitat, potential economic effects of the 

proposed designation, benefits 

associated with critical habitat 

designation, areas considered for 

exclusion, and the inclusion of water 

sources as a primary constituent 

element (PCE). 

We also contacted appropriate 

Federal, State, and local agencies; 

scientific organizations; and other 

interested parties and invited them to 

comment on the revised proposed rule 

and the associated DEA. The comment 

period for the revised proposed rule 

opened on August 22, 2007, and closed 

on October 22, 2007. During the 

comment period for the revised 

proposed rule, we received eight 

comment letters on the proposed 

revised critical habitat designation and 

DEA: three from peer reviewers, two 

from local governments, and three from 

organizations or individuals. We 

received no comments from State or 

Federal agencies. The comment period 

for the DEA opened on April 15, 2008, 

and closed on May 15, 2008. We 

received two comment letters and no 

requests for public hearings. 

Comments and new information 

received in response to the revised 

proposed rule that were relevant to the 

final designation were incorporated in 

the final rule as appropriate and are 

summarized below. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from seven 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 were generally supportive of 

the designation of critical habitat. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

the Bay checkerspot butterfly. All 

comments received were grouped into 

general issue categories relating to the 

proposed rule to revise critical habitat 

for the Bay checkerspot butterfly and are 

addressed in the following summary 

and incorporated into this final revised 

rule as appropriate. 

Peer Reviewer Comments 

In general, all three peer reviewers 

supported the revised critical habitat 

designation. However, two peer 

reviewers questioned whether some 


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units were ‘‘critical.’’ One peer reviewer 

stated that the background information 

was comprehensive and reflected the 

decade’s worth of research on the 

butterfly and that the accounts on 

nitrogen deposition and topographic 

effects are good summaries. One peer 

reviewer felt that using both currently 

occupied and historically occupied 

habitats was a good inclusive decision 

and effectively covered any remaining 

suitable habitat. Individual peer 

comments are listed below. 

Comment 1: One peer review 

suggested that the designation of 

‘‘primary’’ and ‘‘secondary’’ host plants 

implies that eggs are always laid on 

Plantago erecta. The reviewer indicated 

that their work on the Bay checkerspot 

butterfly suggests that this is true in 

some places such as at Jasper Ridge; 

however, at Edgewood approximately 

70 percent of oviposition occurred on 

Castilleja and that in the 1980s, 

approximately 20 percent of oviposition 

at Kirby Canyon (the southern portion of 

Coyote Ridge) occurred on Castilleja. 

Our Response: The comment is noted 

and clarification has been provided to 

indicate that ‘‘primary’’ refers to the 

host plant species that is used most 

frequently for oviposition, although not 

exclusively. Please see the ‘‘Primary 

Constituent Elements’’ section under 

‘‘Food’’ for more information. 

Comment 2: One peer reviewer noted 

that the evidence for repeat diapause is 

more robust than is noted in the 

literature. The commenter stated that 

several persons had observed repeat 

diapause by this insect, although he was 

not aware if larvae were capable of 

multiyear diapause without the 

opportunity to feed in-between years. 

Our Response: We have added the 

peer reviewer’s personal observations of 

multiple diapauses to this final rule in 

the ‘‘Primary Constituent Elements’’ 

section under ‘‘Cover.’’ 

Comment 3: One peer reviewer 

confirmed the use of water or 

‘‘puddling’’ behavior described by 

Launer et al. (1993) in the Bay 

checkerspot butterfly. The peer reviewer 

also noted having observed puddling by 

both sexes of other Edith’s checkerspots 

(Euphydryas editha spp.). However, he 

also noted that while puddling could 

extend an adult’s lifespan, female Bay 

checkerspot butterflies were still likely 

to be able to lay most of their eggs under 

dry conditions if they still had access to 

nectar sources. 

A second reviewer stated that while 

he had documented ‘‘puddling’’ in the 

Bay checkerspot butterfly and the use of 

water was interesting, it was not a 

significant finding. Further, the peer 

reviewer stated that water should not be 

considered when evaluating habitat 

quality for the Bay checkerspot 

butterfly. 

A third peer reviewer stated the need 

for aquatic features is too strong and 

that the Bay checkerspot butterfly will 

use water when needed and available 

during drought years. 

Our Response: Based on the above 

comments from peer reviewers, the 

Service has removed aquatic features as 

a PCE in this final rule. For more 

information, see the ‘‘Primary 

Constituent Elements’’ section of this 

final rule. Because all of the units 

designated contain all of the remaining 

PCEs identified in the proposed rule, 

the removal of aquatic features as a PCE 

did not affect the overall designation of 

critical habitat. 

Comment 4: One peer reviewer 

questioned the utility of providing a list 

of grassland plant species and noted 

that an attempt to do so would likely 

result in a long list. However, he noted 

that, if a list is to be provided, that 

Italian ryegrass (Lolium multiflorum) 

should be included. 

Our Response: The Service attempted 

to provide a list of plant species 

commonly found in open grasslands in 

California. The list of grassland species 

was not meant to be exhaustive or to 

represent species that the Bay 

checkerspot butterfly depends on. Since 

Italian ryegrass is commonly found in 

grasslands in California, the Service will 

add it to the list of species that 

commonly occur in grassland habitats in 

California. 

Comment 5: One peer reviewer 

provided the following information 

regarding fire and prescribed burns: (1) 

Late spring burns reduce annual grass 

and increase native forbs for 1 to 2 years 

post burn, and in Santa Clara County 

grass reinvades quickly in the absence 

of grazing such that 3 to 4 years post 

burn the habitat is again dominated by 

annual grass; (2) fall burns reduce grass 

thatch but are not effective in reducing 

annual grass in subsequent years; (3) 

diapausing larvae can survive fire (in 

winter of 2007 and 2008, larvae were 

found in areas burned the previous 

spring and summer); (4) spring fires to 

control barbed goatgrass will be an 

essential management tool; (5) thatch 

removal by spring and fall burns are 

effective initially but must be followed 

by grazing to be effective in the long 

term; and (6) positive effects from burns 

will likely last longer in areas with 

lower nitrogen deposition (San Mateo 

County). 

Our Response: The Service has 

incorporated the information provided 

regarding fire (from the Metcalf Center 

Energy reports CH2M Hill 2005, 2006, 

and 2008) into this final rule. Please see 

the ‘‘Special Management 

Considerations or Protections’’ section 

below for more information. 

Comment 6: One peer reviewer 

provided the following comments 

regarding potential adverse modification 

of critical habitat: (1) Small scale 

disturbances in serpentine grasslands 

generally do not pose a risk to Bay 

checkerspot butterfly populations; (2) 

the section regarding short-term 

mortality from grazing and fire should 

be clarified to state that the negative 

effects of fire and grazing are 

significantly outweighed by the positive 

benefit to the Bay checkerspot butterfly; 

(3) removal of grazing provides one of 

the biggest threats to the subspecies; (4) 

nitrogen disposition is the current 

greatest threat; and (5) pesticides 

inappropriately applied could cause 

local negative effects. 

Our Response: We have provided 

clarification in this final rule regarding 

the beneficial effects of grazing and fire 

to the Bay checkerspot butterfly’s 

habitat. Please see the ‘‘Special 

Management Considerations or 

Protections’’ section below for more 

information. 

Comment 7: One peer reviewer stated 

that data regarding host plant density 

might be available from The Howard 

Mooney Lab at Stanford University. 

Our Response: The Service attempted 

to contact researchers with the Howard 

Mooney Lab but did not receive a reply. 

Comment 8: One peer reviewer stated 

that while he was part of the group that 

promoted the Bay checkerspot butterfly 

as a metapopulation species, much of 

the information necessary to 

characterize the species as such is not 

well known. As an example, the peer 

reviewer stated that extinction and 

recolonization events, rates of longdistance dispersal, and the number of 

individuals required to establish new 

populations are not well known. 

Finally, the peer reviewer stated that the 

Bay checkerspot butterfly’s 

metapopulation is ‘‘not well known or 

as elucidated as it is sometimes 

portrayed (Launer 2008 p. 1).’’ 

Our Response: The Service is aware 

that the exact nature of the Bay 

checkerspot butterfly’s population 

dynamics is highly complex and that 

long-distance dispersal, extinction or 

recolonization rates, and the threshold 

of individuals required to establish or 

re-establish a population is not well 

documented. The Service took a 

conservative approach in designating 

critical habitat partly because of the lack 

of data available regarding dispersal and 

recolonization rates. We only designated 

areas that had documented occurrences 


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of the Bay checkerspot butterfly. We did 

not designate all areas within the range 

of the Bay checkerspot butterfly that 

could support the species, partly 

because of lack of data regarding the 

dispersal capabilities of the subspecies, 

number of individuals required to 

establish new populations, and the 

minimum size necessary to support a 

population. For additional information, 

please see the ‘‘Criteria Used to Identify 

Critical Habitat’’ section of this rule. In 

addition, we lacked occurrence data for 

sites outside those we designated as 

critical habitat; sites that were not 

occupied at the time of listing or since 

listing did not meet our criteria for 

designating critical habitat. 

Comment 9: One peer reviewer 

believes that all conservation planning 

in the region (including critical habitat 

designations) should be aware of the 

unstable nature of the habitat in these 

areas. The conditions present today may 

not persist into the next quarter and half 

century; this is particularly true of the 

distribution of the Bay checkerspot 

butterfly and the apparent acceleration 

of climate change. The reviewer also 

stated that as much topographic 

diversity and geographic range should 

be included in the designation as 

possible. 

Our Response: A current trend in 

conservation biology is the use of 

adaptive management. Adaptive 

management is a mechanism by which 

resource managers acknowledge the 

uncertainty of the effects of various 

management actions in addition to the 

often rapidly changing nature of the 

resource they are trying to manage. The 

Service is aware of the ongoing and 

often rapid changes in the environment 

that occur throughout the range of the 

Bay checkerspot butterfly. Because of 

the uncertainty in managing lands in the 

foreseeable future, many lands that have 

been set aside for the conservation of 

listed species, including the Bay 

checkerspot butterfly, now include an 

adaptive management component. 

While the amount of land within 

individual conservation areas is 

generally static, adaptive management 

should provide resource managers with 

the framework required to cope with a 

changing landscape. In addition, if the 

Service determines in the future that the 

designated area no longer meets the 

definition of critical habitat, we will 

consider proposing a revision to the 

critical habitat designation at that time 

or when our resources allow. 

Please see the ‘‘Criteria Used to 

Identify Critical Habitat’’ section in 

regards to the comment that topographic 

diversity and geographic range should 

be included in the designation where 

possible, The Service only designated 

areas that had documented occurrences 

of the Bay checkerspot butterfly. We did 

not designate all areas within the range 

of the Bay checkerspot butterfly that 

could support the species, partly 

because of lack of data regarding the 

dispersal capabilities of the subspecies, 

number of individuals required to 

establish new populations, and the 

minimum size necessary to support a 

population. 

Comment 10: One peer reviewer 

reiterated the fact that Bay checkerspot 

butterfly population levels fluctuate 

widely from one year to the next. In 

addition, the reviewer stated that while 

interesting, the number of individuals 

present at a given site in a given year is 

misleading and that multi-year trends 

are useful in conservation planning, but 

are much less available. 

Our Response: The Service recognizes 

that the number of individuals in a 

single year does not adequately reflect 

the overall health of the population 

within a given unit due to the 

population dynamics of the species and 

its tendency towards wide swings in 

number of individuals. However, when 

evaluating the population status of a 

species, it is incumbent on the Service 

to use the best data available. While the 

reviewer correctly pointed out that long 

multi-year population data for this 

species are not available for many of the 

units, multi-year population trends are 

available for some of the units (i.e., 

those along Coyote Ridge). In other 

units, only single year assessments are 

available. Our designation of critical 

habitat for the Bay checkerspot butterfly 

is based on the best scientific 

information available. 

Comment 11: One peer reviewer 

noted that almost all of the units 

include some area of nonserpentine soil 

and that these areas should probably be 

expanded in several units. The 

commenter also noted that, while these 

areas of nonserpentine soils do not 

support host plant densities sufficient to 

support checkerspot larvae, the adults 

do fly through these areas and it is 

important not to disrupt dispersal 

routes. The peer reviewer noted that 

while dispersal routes are not well 

documented for the Bay checkerspot 

butterflies, they are known to fly 

through nonserpentine areas, along 

ridgelines, and between close patches of 

suitable habitat if intervening habitats 

have not been overly modified. 

Our Response: All units support all 

the PCEs, although each PCE is not 

evenly distributed throughout each unit. 

For example, within each unit all PCEs 

are present, but PCE 2 (larval host 

plants) may only be present in scattered 

patches and the exact distribution of 

PCE 2 (and PCE 3, adult nectar plants) 

changes from one year to the next. The 

fluctuation in host plant distribution 

made it impossible to base unit 

boundaries solely on PCE 2 or PCE 3. 

Larger areas of grassland habitat around 

larval host and adult nectar plants were 

included within unit boundaries, 

because they support PCEs 1, 3, 4, and 

5. Therefore, independent of facilitating 

dispersal between patches of larval host 

and adult nectar plants, grasslands 

within units provide features essential 

to the conservation of the Bay 

checkerspot butterfly. As the peer 

reviewer noted, specific dispersal 

corridors have not been well 

documented (either within units or 

between units) for the Bay checkerspot 

butterfly. Since exact routes between 

units are unknown, the Service selected 

units occupied at listing or currently 

occupied with PCEs that were within 

the known dispersal distance of the 

species. 

Comment 12: One peer reviewer 

stated that even though the San Bruno 

Mt. Unit (Unit 1) is potentially a 

valuable site, very little habitat for the 

species remains (in part due to 

succession of plant communities and 

continued invasion by nonnative 

species) in the unit and it is not within 

‘‘easy butterfly dispersal distance’’

(Launer 2008) or other recently 

occupied habitat. In light of this 

information the peer reviewer felt a reevaluation of what is possible with 

respect to Bay checkerspot butterfly 

habitat in San Mateo County should be 

conducted and that it is possible 

attention should focus on the other 

three units in the County. 

A second reviewer stated the current 

distribution of habitat on San Bruno Mt. 

is poorly known and detailed surveys 

should be done. The peer reviewer also 

stated that dispersal between the Pulgas 

Ridge Unit and San Bruno Mt. is 

unlikely and should not be counted on 

as part of the population–

metapopulation process. Finally, the 

peer reviewer stated that the exclusion 

of San Bruno Mt. appeared reasonable, 

although the site should be explored for 

potential reintroductions. 

Our Response: The Service proposed 

the San Bruno Mt. Unit (Unit 1) for 

exclusion for several reasons, including: 

(1) The large distance between the unit 

and the other units in San Mateo County 

and the lack of adequate information 

regarding suitable intervening habitat; 

(2) the Bay checkerspot butterfly has not 

been observed on San Bruno Mt. since 

the mid 1980s despite repeated surveys; 

(3) much of San Bruno Mt. is protected 

under a habitat conservation plan 


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(HCP); and (4) Amendment 5 of the San 

Bruno Mountain Habitat Conservation 

Plan (SBMHCP) would add the Bay 

checkerspot as a covered species and 

provide an endowment for continued 

management actions within the HCP 

boundaries. Furthermore, the unit is 

occupied by the endangered Callippe 

silverspot butterfly (Speyeria callippe 

callippe), endangered Mission blue 

butterfly (Icaricia icarioides 

missionensis), and the endangered San 

Bruno elfin (Callophyrs mossii 

bayensis), and management of the unit 

for these species would likely be the 

same as for the Bay checkerspot 

butterfly; there would not likely be any 

additional benefits of designating the 

area as critical habitat for the Bay 

checkerspot butterfly. 

At the time of the publication of the 

proposed rule, we expected Amendment 

5 to the SBMHCP, which would include 

coverage specific to the Bay checkerspot 

butterfly, to have been finalized prior to 

the publication of this final designation 

of critical habitat. As this amendment is 

not yet finalized as of the writing of the 

final rule, we re-evaluated the proposed 

exclusion of the SBMHCP from critical 

habitat and determined that not to 

exclude this area based on the record 

before us. (See ‘‘Application of Section 

4(b)(2) of the Act’’). 

In addition, we disagree with the peer 

reviewers that very little habitat remains 

for the Bay checkerspot butterfly on San 

Bruno Mt. or that the distribution of that 

habitat is unknown. According to the 

San Bruno Mountain Habitat 

Management Plan (2008 p. VIII-6), the 

host plants for the Bay checkerspot 

butterfly are still abundant on the 

mountain in isolated patches within and 

outside the 2001 designation of critical 

habitat. 

Comment 13: One peer reviewer 

stated that the Pulgas Ridge Unit (Unit 

2) was marginal habitat, but prior to 

fragmentation, encroachment of 

surrounding development, and 

continued invasion by nonnative plant 

species, the unit and surrounding area 

supported a large population of Bay 

checkerspot butterflies. The peer 

reviewer also stated that the Pulgas 

Unit, in conjunction with the Edgewood 

Park Unit (Unit 3) and the Jasper Ridge 

Unit (Unit 4), could be useful as a 

complex of habitat. 

A second peer reviewer stated that 

little is known about the Pulgas Ridge 

Unit, except that it contains all the 

PCEs, is extensive, and has topography 

similar to the Edgewood Park Unit. The 

peer reviewer also reiterated his earlier 

comment that dispersal between Pulgas 

Ridge and San Bruno Mt. was unlikely 

given the dispersal tendencies of the 

subspecies and the lack of intervening 

habitat (high level of urbanization and 

lack of grasslands). 

Our Response: The Service is aware 

that the Pulgas Ridge Unit will require 

restoration and management in order to 

reduce non-native plant species. 

However, all the units are assumed to 

require ongoing restoration and 

management activities in order to 

restore and maintain sufficient habitat 

to support the Bay checkerspot 

butterfly, primarily due to the continued 

threat of nonnative plant species. The 

Service included the Pulgas Ridge Unit 

because the unit historically supported 

the subspecies, is in close proximity to 

the Edgewood Park Unit, where the 

subspecies was reintroduced in early 

2007, and because a core population 

outside Santa Clara County is essential 

to the recovery of the subspecies. The 

viability of a population in San Mateo 

County is dependent on the population 

being self-sustaining. A single unit in 

San Mateo County is unlikely to support 

the metapopulation dynamics of the 

species and would likely ultimately fail. 

Comment 14: With regard to the 

Edgewood Park Unit one peer reviewer 

said it should be viewed as essential to 

the recovery of the species because of its 

multiple subunits, topographic 

diversity, and ‘‘ample expanse,’’ but that 

the unit will need ongoing restoration to 

benefit the species. 

A second peer reviewer stated that the 

Edgewood Park Unit was correctly 

identified in the proposed rule as the 

only potential core habitat remaining in 

San Mateo County, but the unit would 

need to be managed through rotational 

mowing for the time being. The 

reviewer also said that the 

reintroduction of the Bay checkerspot 

butterfly in 2007 was not as successful 

as anticipated (likely due to the 

extremely dry conditions in 2007). More 

precise information regarding the 

success of the introduction will be 

available after the 2008 flight season. 

Our Response: Because the Edgewood 

Park Unit was occupied at the time of 

listing and continues to contain the 

PCEs essential to the conservation of the 

species, we agree with these peer 

reviewers that this unit should be 

designated as critical habitat. 

Comment 15: One peer reviewer 

stated that there were two main 

problems with the Jasper Ridge Unit: (1) 

The serpentine grasslands within the 

biological preserve are relatively small, 

and (2) the preserve is managed by nonintervention. The reviewer also 

commented that the serpentine 

grassland present within the unit was in 

general in fair condition, with a few 

smaller sites of excellent quality habitat, 

but they are within a matrix of poor to 

marginal quality habitat. The peer 

reviewer believed that with active 

management Units 2, 3, and 4 could be 

essential to the recovery of the Bay 

checkerspot butterfly. 

A second peer reviewer stated that the 

designation includes all suitable Bay 

checkerspot butterfly habitat within the 

unit, although it also includes 

surrounding woodlands, chaparral, and 

nonnative grasslands. Regarding 

dispersal to this unit from the Santa 

Clara County units, the peer reviewer 

stated the likelihood was extremely low. 

Our Response: The Service agrees that 

the patches of serpentine soils within 

the unit are relatively small. However, 

the area of similar soil types within the 

unit encompasses the majority of the 

grasslands within the Biological 

Preserve. The unit supported multiple 

independent populations for several 

decades and we believe that in 

conjunction with Units 2 and 3, this 

unit is capable of supporting the 

subspecies again. In addition, we 

believe the unit is essential to 

maintaining a core population in San 

Mateo County, partly due to the low 

likelihood that individual Bay 

checkerspot butterflies would disperse 

from Santa Clara County. 

The Service acknowledges that the 

primary focus of the Jasper Ridge 

Biological Preserve (JRBP), which 

encompasses Unit 3, is research and the 

preserve is not currently managed for 

any species, including protection of the 

Bay checkerspot butterfly; however, 

according to the 2004 draft Jasper Ridge 

Biological Preserve Strategic Plan (JRBP 

2008, p. 1), species and habitat 

conservation is being proposed and 

these conservation efforts should be 

designed to include protection of habitat 

or individual species. Further, most 

units are not currently managed to 

benefit the Bay checkerspot butterfly, 

but still provide features essential to the 

conservation of the subspecies; Also, as 

noted above, the Service believes Unit 3 

is necessary to support the 

metapopulation dynamics of the 

subspecies and to maintain a core 

population in San Mateo County 

independent of the Santa Clara County 

core population. 

Comment 16: One peer reviewer 

noted that Unit 5 had only recently been 

referred to as ‘‘Coyote Ridge’’ and that 

historically it was known by many 

names. The peer reviewer recommended 

a more appropriate name for the unit be 

used. In addition, the reviewer stated 

the entire ridge from the northwest 

corner (Silver Creek Hills) to Anderson 

Reservoir Dam in the southeast, 

including the nonserpentine areas, is 


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essential for the continued persistence 

of the Bay checkerspot butterfly and that 

without it the subspecies would cease to 

exist. The reviewer supported the 

designation of this unit as critical 

habitat. The reviewer also believed that 

the unit should be expanded to include 

all nonserpentine areas along the ridge 

and an adequate buffer along the sides 

of the ridge. 

The peer reviewer also noted there are 

likely more than four populations on 

Coyote Ridge 5 as indicated in the 

proposed rule and that the four 

mentioned represent the centers of 

classic study areas, but that multiple 

subpopulations or populations exist in 

each of the four historical centers. 

A second peer reviewer also stated the 

unit was ‘‘absolutely essential’’ to the 

persistence of the Bay checkerspot 

butterfly. In addition, the reviewer 

believed the unit could be separated 

into multiple units, because some areas 

are separated by several kilometers of 

non-habitat. The reviewer also 

commented that the reduction in 

numbers of individuals in the Silver 

Creek population after 1992 was the 

result of removing grazing for a number 

of years. The reduction of the overall 

unit’s population resulted from the 

combination of a series of poor weather 

and over-population of larvae in key 

areas, but that this likely represents 

natural fluctuations. 

Our Response: The Service recognizes 

that proposed Unit 5 (final Units 5 and 

13) has historically been identified by a 

variety of names, several of which were 

noted in the Recovery Plan for 

Serpentine Soil Species of the San 

Francisco Bay Area (Service 2001, p. II178). We clarify the naming in this final 

rule by separating the unit into two 

units, based on a natural break in the 

habitat between the two. We have also 

added information in the unit 

descriptions stating that the four 

historical population centers are likely 

not the only populations that occur 

along the ridge. 

The Service agrees with the peer 

reviewers regarding the importance of 

the entire ridge line. However, we 

disagree with one of the peer reviewers 

that additional areas should be 

designated as a buffer. The Service 

included almost all of the grassland on 

the southwest portion of the ridge up to 

U.S. Highway 101, with only a few 

exceptions (where there was existing 

development). On the north side of the 

ridge, the Service included all of the 

areas with serpentine or serpentine-like 

soils, with the exception of a few areas 

that were separated from the main 

ridgeline and were not grasslands (they 

were other habitat types). We did not 

include certain areas on the north side 

of the ridge, as explained below, based 

on specific information we received 

during preparation of the 2001 final 

critical habitat rule (i.e., information 

regarding lands owned by United 

Technology Corporation) as well as from 

numerous site visits to this unit. 

We did not include grassland areas on 

nonserpentine or similar soils on the 

north side of the ridge because we 

believe these areas lack sufficient PCEs 

to support the Bay checkerspot 

butterfly. The Act defines critical 

habitat as (1) the specific areas within 

the geographic area occupied by a 

species, at the time of listing in 

accordance with the Act, on which are 

found those physical or biological 

features (a) essential to the conservation 

of the species and (b) that may require 

special management considerations or 

protection; and (2) specific areas outside 

the geographic area occupied by a 

species at the time it is listed in 

accordance with section 4 of the Act, 

upon a determination by the Secretary 

that such areas are essential for the 

conservation of the species. Buffer areas 

may serve to protect critical habitat 

units from encroachment by 

development, but these lands do not 

contain PCEs laid out in the appropriate 

quantity and spatial arrangement for the 

conservation of the species and 

therefore do not meet the regulatory 

definition of occupied critical habitat, 

nor have we concluded that such 

unoccupied buffer lands are essential to 

the conservation of the species. In 

addition, buffers were not a criterion 

used to designate critical habitat for the 

Bay checkerspot butterfly. 

Comment 17: One peer reviewer 

stated that the Tulare Hill Unit (Unit 6) 

is valuable and provides a natural 

location for between ridge dispersal and 

he supported designation of the unit as 

critical habitat. In addition, the 

commenter stated that while habitat 

quality within the unit declined in the 

1980s and 1990s, it has recently 

improved due to increased management 

and that unit wide management should 

be undertaken. 

A second peer reviewer identified this 

unit as a key link across the Santa Clara 

Valley and its value in previous 

assessments has been underemphasized. 

The reviewer stated that, if managed 

properly, the unit would support a 

population in the thousands or more; 

however, habitat on the northern 

portion of the unit has been degraded 

due to lack of grazing, which 

underscores the importance of an 

adequate grazing plan. 

Our Response: The Service agrees that 

the Tulare Hill Unit provides an 

essential link between the east and west 

portions of the valley and serves as the 

most likely location for between ridge 

transfers of the Bay checkerspot 

butterfly. Without this unit Bay 

checkerspot butterflies’ between-ridge 

movements are still possible, but would 

likely occur with much lower 

frequency. For species with a 

metapopulation dynamic, the successful 

colonization or recolonization of a site 

partly depends on the rate of 

colonization vs. the rate of extinction. 

Colonization must occur more often 

than extinction events for a site to 

remain occupied. Therefore, the 

inclusion of the Tulare Hill Unit in this 

final designation of critical habitat is 

necessary to maintain populations on 

the western side of the valley. 

The northern portion of the Tulare 

Hill Unit will soon be managed to 

benefit the Bay checkerspot butterfly as 

a result of the finalization of a Safe 

Harbor Agreement with Pacific Gas and 

Electric, which will enable grazing of 

the northern portion of the unit; this 

safe harbor agreement is expected to 

result in an increase in the population 

of Bay checkerspot butterflies within the 

unit by facilitating grazing in the 

northern portion of the unit, which is 

not currently grazed and only supports 

low numbers of the subspecies. 

Comment 18: One peer reviewer 

stated that designation of the Santa 

Teresa Hills Unit (Unit 7) was 

reasonable, but that an extensive 

management plan would need to be 

established, since much of the unit is 

within Santa Teresa County Park and 

has not been managed for the benefit of 

the Bay checkerspot butterfly. In 

addition, the peer reviewer stated that 

with proper management this unit could 

significantly contribute to the recovery 

of the subspecies. The peer reviewer 

made similar comments regarding the 

Calero Reservoir Unit (Unit 8) with the 

additional comment that the unit’s 

location, its topographic diversity, and 

large size make the unit very valuable 

for long-term conservation of the Bay 

checkerspot butterfly. 

A second peer reviewer stated the 

Calero Reservoir Unit (Unit 8) has high 

potential because of its topographic 

diversity and large size, but that 

occupancy is unclear (according to 

casual surveys) as the habitat has been 

degraded due to lack of grazing, 

although effects from air pollution may 

be somewhat less than areas to the east. 

In addition, the reviewer stated that 

emphasis should be on the serpentine 

grassland and it should be made clear 

effects of activities outside of these 

grasslands are only a small concern. 


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Our Response: The Service agrees that 

the Santa Teresa Hills Unit (Unit 7) will 

require restoration and management in 

order to reduce non-native plant 

species. However, as noted above, all 

the units are assumed to require ongoing 

restoration activities in order to restore 

and maintain adequate habitat to 

support the Bay checkerspot butterfly 

over time, due to the continued threat 

of nonnative plant species. 

The Service does not completely agree 

with the peer reviewer who commented 

that effects to nonserpentine grasslands 

are of minor concern. Nonserpentine 

grasslands within a unit between 

serpentine and serpentine-like 

grasslands likely play an important role 

in dispersal of adult butterflies from one 

habitat patch to another. Development 

in intervening nonserpentine areas 

within a unit will likely reduce 

movement of adults between more 

suitable patches. However, based on the 

peer reviewer’s comments, we have 

revised the northwestern portion of the 

unit boundary. Much of the area 

removed was heavily interspersed with 

woodland habitat and did not support 

many of the PCEs, such as the presence 

of serpentine or serpentine-like 

grasslands. 

Comment 19: One peer reviewer 

stated that the series of small hills that 

make up the Kalana Hills Unit (Unit 9A 

and 9B) individually are not valuable to 

the subspecies; however, along with the 

intervening nonserpentine grasslands, 

they provide a significant resource for 

the Bay checkerspot butterfly. The peer 

reviewer supported the unit’s inclusion 

as critical habitat. The peer reviewer 

recommended inclusion of more of the 

nonserpentine areas between the units. 

A second peer reviewer stated that the 

unit was well described and the four 

small serpentine outcrops can be 

regularly occupied. 

Our Response: The Service did not 

include all of the intervening 

nonserpentine areas between the large 

hill (subunit A) and the three smaller 

hills (subunit B) because they are 

separated by a disked agricultural field, 

which does not support the PCEs and 

does not meet our criteria for 

designating critical habitat. We did not 

include all areas between each of the 

three smaller hills because they are 

separated by a small network of local 

and private roads and at least two 

residences and do not support PCE 1, 2, 

3, or 5. We did revise the unit 

boundaries slightly to reflect better 

resolution from vegetation data. 

Comment 20: One peer reviewer 

stated that the Morgan Hill Unit (Unit 

10) has historically been referred to as 

Hale or Falcon Crest. The peer reviewer 

also noted the unit is extensive and 

topographically diverse and that with 

proper management the unit is 

important for the long-term 

conservation of the Bay checkerspot 

butterfly and the peer reviewer 

supported this unit’s inclusion as 

critical habitat. 

Another peer reviewer commented 

that this area was one of the most 

important outlying areas from Coyote 

Ridge. 

Our Response: The Service has 

renamed Unit 10 from Morgan Hill to 

Hale in order to prevent confusion with 

final Units 5 and 13 (which historically 

have been referred to as Morgan Hill). 

Comment 21: One peer reviewer 

stated that the Bear Ranch Unit (Unit 

11) consists of a series of small 

serpentine grasslands and that, prior to 

their inclusion into the Santa Clara 

County Parks and Recreation system, 

they were grazed and the habitat was in 

good condition. The reviewer expressed 

support that Santa Clara County Parks 

and Recreation has continued to graze 

the site. In addition, the reviewer stated 

that the nonserpentine grasslands 

between the patches were of great 

important to the Bay checkerspot 

butterfly at this site, and public 

structures (trails, parking facilities, etc.) 

should not be located between the small 

patches of serpentine grasslands. 

However, the peer reviewer questioned 

whether the site should be included as 

critical habitat because overall he 

believed the site was of less importance 

than the other units in Santa Clara 

County. 

A second peer reviewer simply noted 

the unit encompassed the serpentine 

grassland within the park. 

Our Response: We included this unit 

as critical habitat because it, along with 

Unit 12, represents the two 

southernmost known occurrences of the 

Bay checkerspot butterfly. As such, we 

believe they may provide an important 

role in the survival of the subspecies. 

However, the Service did revise this 

unit based on information obtained from 

or developed for the Santa Clara County 

HCP to better reflect the known 

distribution of serpentine bunchgrass 

communities within the unit and so as 

not to include nonserpentine grasslands 

to the west of the two serpentine 

patches. 

Comment 22: One peer reviewer 

stated that the San Marin Unit (Unit 12) 

should not be considered critical habitat 

because the unit is too small, too hot, 

and too isolated. In addition, the 

reviewer stated that had development 

not occurred on the northern portion of 

the site in the 1980s and 1990s, the site 

may still benefit the Bay checkerspot 

butterfly, but that now the site is of 

marginal value. 

A second peer reviewer also noted 

that the site may provide little value due 

to its size and current level of 

development. 

Our Response: The Service requested 

additional information regarding 

development in this unit, but only one 

peer reviewer responded. The reviewer 

noted that the development was a series 

of large residential lots in the northern 

portion of the unit. However, based on 

aerial photographs, there are fewer than 

10 residences within the northern 

portion of the unit. Topographic maps 

show a variety of slope aspects 

(including cool northeast slopes) 

present within the unit. The Service 

acknowledges the most diverse slopes 

are primarily located in the southern 

portion of the unit. However, the 

presence of both north and east slopes 

indicates that the entire unit is not ‘‘too 

hot’’ as noted by one of the peer 

reviewers. It does not appear that the 

current level of development has 

significantly degraded the overall 

habitat within the unit. In addition, as 

noted above, we included both Unit 12 

and Unit 11 because they represent the 

southernmost known occurrences of the 

subspecies and as such may represent 

important adaptive differences between 

populations of Bay checkerspots 

butterflies in these units and 

populations in other units. The criteria 

we used to designate critical habitat 

were whether the area was occupied at 

listing or since listing and whether the 

area had sufficient PCEs to support a 

population. The unit was occupied at 

listing and currently supports all the 

PCEs; therefore it meets the criteria for 

critical habitat. 

Comment 23: One peer reviewer 

supported non-inclusion of 

Communications Hill (Unit 6 in the 

2001 designation) because, since 

development of the quarry, the 

remaining habitat is too hot and too 

limited. 

Our Response: Multiple surveys have 

been conducted at Communications Hill 

over the last two decades, including two 

recent surveys by Dr. Richard Arnold in 

2000 and 2007. According to Arnold 

(2007, p. 7), approximately half of the 

areas that supported the primary larval 

host plant in 2000 had been eliminated. 

Of the sites that still supported the 

primary host plant, most did not 

support either of the two secondary host 

plants. In addition, adult nectar sources 

were ‘‘almost entirely lacking’’ (Arnold 

2007, p. 7). We believe the information 

presented in the 2000 and 2007 surveys 

by Dr. Richard Arnold in addition to 

aerial photographs and vegetation maps 


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supports the conclusion that much of 

Communications Hill has been 

developed and what little habitat 

remains does not provide PCEs in 

sufficient quantities to meet one or more 

life history requirements of the Bay 

checkerspot butterfly. In addition, there 

is only one unconfirmed record of a 

single Bay checkerspot butterfly on 

Communications Hill. Given the lack of 

confirmed records, the current 

developed state of the area, and lack of 

many of the PCEs, the area did not meet 

the criteria for designation as critical 

habitat. 

Public Comments 

Comment 24: One commenter 

recommended adding an area proposed 

as a conservation bank in southern 

Santa Clara County for inclusion within 

the critical habitat designation and 

noted that a small portion of the 

conservation bank is located within an 

area historically documented to support 

Bay checkerspot butterflies. 

Our Response: The proposed 

conservation bank is located in the 

southern portion of Santa Clara County 

and is approximately 0.5 miles (mi) 

(0.80 kilometers (km)) southwest of the 

San Martin Unit. According to the 

commenter, the entire site is 1,685 acres 

with 43.3 ac (17.52 ha) of serpentine or 

serpentine-like grasslands scattered 

across three areas that includes all six 

PCEs. The Service agrees that portions 

of the proposed bank likely support all 

the PCEs; however, the overall amount 

of habitat that the butterfly could 

occupy at the site is low. According to 

the California Natural Diversity Data 

Base (CNDDB), the Bay checkerspot 

occurrence (CNDDB occurrence 19) that 

includes a small portion of the proposed 

bank is ‘‘nonspecific’’ and includes 

large areas of forest, agriculture, and 

residential areas (including a golf 

course) that do not support the PCEs. 

The observation was made by Dr. 

Richard Arnold in 1985, but the exact 

location is not clear and may have been 

part of the serpentine grasslands within 

the San Martin Unit. 

The commenter did not provide any 

information regarding larvae or adult 

surveys at the proposed conservation 

bank or if any individual Bay 

checkerspot butterflies have been 

observed at the site. A review of the 

literature indicates that apart from the 

CNDDB’s nonspecific occurrence by Dr. 

Richard Arnold, the site has not been 

identified as supporting Bay 

checkerspot butterflies in the past. At 

this time the Service has insufficient 

information regarding the ability of the 

site to support Bay checkerspot 

butterflies to include it in critical 

habitat. 

Comment 25: Two commenters 

supported non-inclusion of 

Communications Hill in the revised 

critical habitat designation. One 

commenter provided additional 

information in the form of vegetative 

surveys by Dr. Richard Arnold in 2000 

and 2007. 

Our Response: According to the 

information provided by one of the 

commenters, additional surveys have 

been conducted on Communications 

Hill by Dr. Richard Arnold in 2000 and 

2007. According to Arnold (2007 p. 7) 

approximately half of the areas that 

supported the primary larval host plant 

in 2000 had been eliminated. Of the 

sites that still supported the primary 

host plant, most did not support either 

of the two secondary host plants. In 

addition, adult nectar sources were 

‘‘almost entirely lacking’’ (Arnold 2007, 

p. 7). We believe the information 

presented by the commenters supports 

the conclusion that much of 

Communications Hill has been 

developed and what little habitat 

remains does not provide PCEs in 

sufficient quantities to meet one or more 

life history requirements of the Bay 

checkerspot butterfly. 

Comment 26: One commenter stated 

that based on their evaluation of their 

property within the Metcalf Unit 

(northern portion of proposed Unit 5; 

final Unit 4) that large portions of the 

site do not include serpentine soils or 

any of the known host plants for the 

species. Furthermore the commenter 

stated that the soils appear to be thicker 

than serpentine soils and are clay-like. 

In addition, the commenter stated the 

Service should obtain more detailed and 

accurate information regarding soil and 

vegetation before designating critical 

habitat. 

Our Response: The Service reviewed 

soil and geological data from multiple 

sources over multiple years, including 

geographic information system (GIS) 

data from Jones and Stokes (the primary 

consultant writing the Habitat 

Conservation Plan for Santa Clara 

County). All of the information the 

Service has obtained regarding soil type 

indicates that large tracks of serpentine 

or serpentine-like soils occur 

throughout the majority of the Metcalf 

Unit. The Service reevaluated the soil 

types present north of Metcalf Road, and 

based on our review of land ownership 

data and the most conservative soil 

maps, there are approximately 2,547 

acres of serpentine soils in the area in 

question. While the analysis shows 

there are patches of nonserpentine soils 

present within the area, our data 

indicate that the vast majority of the site 

is comprised of soils from the Montara 

soil series. Additionally, the commenter 

did not provide the results of any 

surveys they may have conducted 

regarding soil types or vegetation that is 

currently found on their property, nor 

did they provide a map of their 

property. 

It is incumbent on the Service to use 

the best available information when 

making critical habitat determinations; 

however, the Service does not have 

adequate resources to undertake sitespecific surveys throughout each critical 

habitat unit. If site-specific surveys are 

available that the Service was unaware 

of, the public comment period should 

be used to provide the Service with that 

information. In this case, the commenter 

noted that their own evaluation of the 

site indicated serpentine soils were not 

present over large portions of the site, 

but did not provide those evaluations 

(surveys) to the Service. Therefore, the 

area in Unit 4 referred to by the 

commenter has not been removed from 

this final designation of critical habitat. 

Comment 27: One commenter stated 

that the Service should not treat critical 

habitat designations as dispositive for 

consultations under the Act and that 

while conducting section 7 reviews, the 

Service should not use the critical 

habitat designation as conclusive. 

Our Response: The Service reviews 

the baseline information for each 

section 7 consultation. If site-specific 

habitat assessments have not been 

submitted with the initial consultation 

package, the Service typically requests 

an assessment be prepared. If a project 

is within a critical habitat designation, 

and the site assessment indicates the 

PCEs are not present within the action 

area or will not be adversely affected by 

the proposed action, then additional 

consultation with the Service is not 

required. The presence of the PCEs and 

the effects of the project on those PCEs 

determine whether formal consultation 

with respect to adverse modification or 

destruction of critical habitat is 

necessary. 

Comment 28: One commenter stated 

that according to their records they were 

not contacted regarding the proposed 

critical habitat designation, which 

included portions of their property. The 

commenter requested a 60–day 

extension on the comment period or 

reopening of the comment period due to 

lack of notification. 

Our Response: According to Service 

records, two attempts were made to 

contact the commenter by telephone 

and voice messages were left both times, 

but no response was received. In 

addition, the Service conducted 


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outreach by notifying appropriate 

elected officials, local jurisdictions, 

interested groups, and property owners. 

We conducted much of this outreach 

through legal notices in regional 

newspapers, telephone calls, letters, and 

news releases faxed or mailed to 

appropriate officials, local jurisdictions, 

and interest groups, and publication of 

the proposed determination and 

associated material on our Internet page. 

A second public comment period was 

opened for the draft economic analysis, 

and the Service contacted the 

commenter for a third time regarding 

the opportunity to provide comments. 

We believe we have provided sufficient 

time for public comment with two open 

comment periods totaling 90 days. 

Additionally, we are under a courtmandated due date to submit a final rule 

to the Federal Register by August 14, 

2008. In order to meet this date, we 

cannot open an additional comment 

period. 

Comment 29: The San Francisco 

Public Utilities Commission (SFPUC) 

stated they owned 203 ac (82.15 ha) 

within the Pulgas Ridge Unit (final Unit 

1) and 130 ac (52.61 ha) within 

proposed the Edgewood Park Unit (final 

Unit 2). 

Our Response: According to the 

proposed and this final rule the Pulgas 

Ridge Unit is approximately 179 ac (72 

ha) total in size, all of which is owned 

by the SFPUC. A review of GIS data 

indicates that more of the Edgewood 

Park Unit is owned by the SFPUC than 

stated in the proposed rule. According 

to our information the SFPUC owns 

approximately 140 ac (57 ha) within the 

Edgewood Park Unit. We have corrected 

the land ownership amount in this final 

rule. 

Comment 30: One commenter 

questioned whether the Pulgas Ridge 

Unit still supports all the PCEs. 

Our Response: It is not a requirement 

that each unit contain all the PCEs in 

order to be designated as critical habitat. 

However, a review of the vegetation data 

and soils and geology data indicate the 

unit has all the PCEs. In addition, sitespecific information (i.e., surveys) was 

not provided by the commenter to 

support whether the unit contained all 

the PCEs or not, and two peer reviewers 

indicated that the unit is extensive and 

has topography similar to the Edgewood 

Park Unit, where Bay checkerspot 

butterflies were introduced in Spring 

2007. The unit was occupied at the time 

of listing and contains all the features 

essential for the conservation of the 

subspecies; therefore, it meets the 

definition of critical habitat. 

Comment 31: One commenter stated 

they were in the early stages of 

preparing a Habitat Conservation Plan 

(HCP) for the Peninsula Watershed 

Management Plan, which includes 

portions of the Pulgas Ridge and 

Edgewood Park Units and that they are 

working to protect serpentine-endemic 

species. 

Our Response: The Service supports 

actions taken by local governments and 

the general public to protect and 

enhance habitat for listed species 

through a variety of programs including 

Safe Harbor Agreements, Habitat 

Conservation Plans, our Partners for 

Fish and Wildlife Program, and other 

programs. The Service looks forward to 

working with the commenter in the 

preparation of an HCP in order to 

benefit serpentine species in the San 

Francisco Bay area. 

Comment 32: Two commenters stated 

that the purpose of designating critical 

habitat is to facilitate species recovery 

and that the Service should designate 

additional areas of unoccupied 

serpentine and nonserpentine habitat to 

ensure the recovery of the Bay 

checkerspot butterfly and sustain the 

metapopulation dynamics of the 

species. 

Our Response: In our revised 

proposed designation of critical habitat 

for the Bay checkerspot butterfly, we 

selected areas based on the best 

scientific data available that possess 

those physical and biological features 

essential to the conservation of the 

subspecies, and that may require special 

management considerations or 

protection. We included in the revised 

proposed designation areas that were 

occupied at the time of listing as well 

as one area occupied since the time of 

listing. However, the Service lacked 

specific information to indicate which, 

if any, unoccupied areas outside those 

we proposed are essential for the 

conservation of the species. The Service 

cannot designate as critical habitat areas 

occupied at the time of listing that we 

are unable to determine have the 

features essential to the conservation of 

the subspecies, or unoccupied areas that 

we are unable to determine are essential 

for the conservation of the species. 

Further, under section 3(5)(C) of the 

Act, critical habitat shall not include the 

entire geographical area that can be 

occupied by the species except in those 

circumstances determined by the 

Secretary of the Interior. Thus, in this 

rule, we only designate those areas we 

have determined meet the definition of 

critical habitat. The commenter did not 

provide information regarding 

unoccupied areas outside those we 

designated that would allow the Service 

to evaluate whether those areas 

supported the physical and biological 

features essential to the conservation of 

the subspecies. If such information 

becomes available in the future, the 

Service will consider proposing a 

revision to the critical habitat 

designation at that time or when our 

resources allow. 

Comment 33: Two commenters stated 

that PCE 1 should be modified. One 

commenter recommend PCE 1 be 

deleted and the other recommended a 

modification to remove the list of grass 

species. 

Our Response: All published 

literature on this species indicates it is 

a grassland species with relatively 

sedentary tendencies and may avoid 

areas of nonhabitat, including chaparral 

and oak woodland; therefore the Service 

believes the presence of grasslands is an 

essential component of Bay checkerspot 

butterfly habitat, although a list of 

specific grass species is not. In this final 

revised critical habitat rule, PCE 1 is 

‘‘The presence of annual or perennial 

grasslands with little to no overstory 

that provide north–south and east–west 

slopes with a tilt of more than 7 degrees 

for larval host plant survival during 

periods of atypical weather (for 

example, drought).’’ We then list 

grassland species as examples of species 

common to grasslands in California, and 

since nonnative grasses are more 

common than native species, we 

include nonnative species in the 

example. The presence of any specific 

grass or grasses listed in the PCE is not 

required, and is not provided as a means 

to measure habitat quality, but merely as 

an indicator of grassland habitat; we 

clarify this in this final rule. 

Comment 34: Two commenters stated 

that the PCEs should include features 

that facilitate dispersal of the Bay 

checkerspot butterfly since dispersal 

between habitat patches is essential for 

recolonization, metapopulation 

persistence, and recovery. These 

commenters further stated that the 

Service did not designate sufficient 

critical habitat to allow for successful 

dispersal and that the Service should 

secure these areas and restore them. 

Our Response: PCE 1 includes both 

perennial and annual grasslands in 

order allow for dispersal. All of the 

units include some amount of 

nonserpentine grasslands interspersed 

with areas of serpentine and serpentinelike grasslands in order to enhance 

dispersal between the more suitable 

patches both within a unit and among 

units. In this way the Service has 

attempted to designate as many small 

patches within the boundaries of 

individual units, such as with the 

Metcalf and Kirby units, which support 

numerous populations and 


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subpopulations scattered over the entire 

eastern ridgeline in Santa Clara County. 

The Santa Teresa Hills Unit includes an 

area next to the Tulare Hill Unit that 

was specifically included in order to 

facilitate the dispersal of Bay 

checkerspot butterflies from the core 

population along Coyote Ridge on the 

eastern side of Santa Clara Valley, to the 

ridges on the western side of the valley. 

In addition, the Kalana Unit (Unit 9a 

and 9b) is also considered important for 

dispersing Bay checkerspot butterflies to 

the southernmost units (Units 10, 11, 

and 12) in Santa Clara County. Based on 

the current occupancy of the majority of 

the units, the Service believes that 

dispersal between small populations 

within each unit, as well as between 

units, is occurring. For additional 

information please see the ‘‘Criteria 

Used to Identify Critical Habitat’’

section of this rule. 

Regarding the acquisition of land, the 

purchase and restoration of land for the 

benefit of the Bay checkerspot butterfly 

is beyond the scope of this rule. 

Comment 35: One commenter stated 

that PCE 5 (in the proposed rule and 

PCE 4 in this final rule) should include 

restored native grassland on 

nonserpentine soils and that researchers 

have suggested the Bay checkerspot 

butterfly’s historic habitat included 

native grasslands on nonserpentine 

soils. 

Our Response: The Service agrees that 

some researchers have hypothesized 

that the range of the Bay checkerspot 

butterfly once included nonserpentine 

grasslands, which we noted in the 

proposed rule. The Service is not aware 

of any data that support the hypothesis. 

However, as noted in our response to 

comment 34, the Service included both 

perennial and annual grassland habitats 

as part of PCE 1. The presence of all 

PCEs was not a criterion used to 

designate critical habitat, and all units 

include areas of nonserpentine 

grasslands. In addition, the Service 

cannot predict where nonserpentine 

grassland habitats that will be restored 

in the future will be located, nor are we 

able to predict whether these areas 

would support other PCEs sufficient to 

support populations of the Bay 

checkerspot butterfly. 

Comment 36: One commenter stated 

that proposed PCE 6 (final rule PCE 5) 

should be revised to state that stable 

holes and cracks in the soil and surface 

rock outcrops, while beneficial and in 

need of protection, are not required for 

the habitat to have value. 

Our Response: The Service disagrees 

with the commenter regarding the 

importance of PCE 5 in this final rule. 

As stated in the proposed rule, White 

(1986, p. 58) observed that pupal 

mortality rates, as well as cause of 

mortality (i.e., predation, parasitism, 

crushing, or disease), varied 

significantly depending on location. For 

example, crushing was most likely in 

areas of bare ground, whereas pupae in 

areas with dense vegetation had a higher 

rate of mortality due to mold and 

viruses. Since pre-diapause larval 

mortality is the most significant factor 

influencing population size, a variety of 

diapause sites are necessary to ensure 

adequate numbers of larvae survive 

diapause. Further, because prescribed 

burns are an important management tool 

to control nonnative and invasive 

vegetation, diapause locations that are 

not at risk due to fire are important. 

Comment 37: One commenter stated 

that adopting PCEs 2 and 3 (larval host 

plants and adult nectar plants) risk 

causing temporary low-quality or 

degraded areas to be treated as nonhabitat, which would allow their 

destruction or adverse modification. 

Our Response: Critical habitat 

designations are not required to support 

all PCEs over the entire extent of the 

critical habitat unit; as defined in 

section 3(5)(A) of the Act, critical 

habitat is defined as (1) the specific 

areas within the geographic area 

occupied by a species, at the time of 

listing in accordance with the Act, on 

which are found those physical or 

biological features (a) essential to the 

conservation of the species and (b) that 

may require special management 

considerations or protection; and (2) 

specific areas outside the geographic 

area occupied by a species at the time 

it is listed in accordance with section 4 

of the Act, upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. This 

definition does not require all PCEs to 

be present throughout the entire unit. 

Further, section 7 consultations on 

critical habitat also do not require all 

PCEs to be present in order to determine 

adverse modification. An adverse 

modification includes when an action 

impairs a unit’s ability to continue to 

provide those features essential for the 

conservation of the species. For 

example, areas of open grasslands may 

not support the larval host or adult host 

plants, but would still provide open 

grasslands for dispersal of adults 

between patches of more suitable 

habitat. In this case, the absence of the 

larval host plants or adult nectar plants 

would not negate the importance of the 

grassland habitat, which is PCE 1. 

Comment 38: One commenter stated 

the principle PCE should be the 

presence of suitable soils and that the 

order of the PCE should be rearranged 

to indicate this. 

Our Response: The order that the 

PCEs appear is not an indicator of their 

importance. The Service does not 

believe ranking the PCEs is appropriate 

because the presence of any one of the 

PCEs may not adequately reflect habitat 

quality or the presence of the species. 

For example, serpentine soils occur 

throughout California (and the world), 

but the Bay checkerspot butterfly does 

not. Similarly both the larval host plants 

and adult nectar plants also have ranges 

that extend beyond the historical range 

of the Bay checkerspot butterfly. 

Comment 39: One commenter stated 

that populations of pollinators of the 

larval and adult host plants should be 

a PCE and that if they are as poorly 

known as we indicated in the proposed 

rule the commenter would undertake a 

project to identify them for the Service. 

Further the commenter stated that our 

assumption regarding the presence of 

host plants implying their successful 

reproduction is erroneous and a serious 

error. 

Our Response: According to Home 

Builders Association of Northern 

California v. U.S. Fish and Wildlife 

Service 268 F. Supp. 2d (1197) 2003, the 

Service must describe the PCEs with a 

certain degree of specificity. In order to 

establish pollinators as a PCE, the 

Service would need detailed life history 

data of the Bay checkerspot butterfly’s 

larval host and adult nectar plants and 

list their pollinators. The Service has 

general data regarding insect 

pollinators, but we lacked data specific 

enough on the pollinators for the 

majority of larval host and nectar plants 

to designate pollinators as a PCE. In 

addition, since the Service is under a 

court-ordered deadline for publishing 

this final rule, there was insufficient 

time to undertake a study designed to 

determine the pollinators of the larval 

host and adult nectar plants. 

Comment 40: One commenter 

supported aquatic features as a PCE and 

stated they had observed ‘‘puddling’’ in 

early April 2002 and the weather had 

not been particularly hot or dry. The 

commenter believes that puddling may 

occur more frequently than previously 

believed for this species. 

Our Response: All three peer 

reviewers, while acknowledging aquatic 

features have been used by this 

subspecies, stated the Bay checkerspot 

butterfly was capable of surviving 

without access to these features. 

Murphy et al. (1983, p. 261) observed 

that egg production varied with diet (no 

food; water; water with 20 percent 

sugar; water with amino acids; nectar; 

and nectar with amino acids), but that 


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water alone had no direct role on female 

fitness. Therefore, based on expert 

opinion, we have removed aquatic 

features as a PCE. 

Comment 41: One commenter stated 

that mean rainfall should also be 

considered when designating critical 

habitat and additional units should be 

designated to include a wide variation 

of annual rainfall. 

Our Response: The Service agrees 

with the commenter regarding the 

importance of annual rainfall. 

Variations in amount and timing of 

rainfall play a significant role in 

determining when host plants become 

senescent which in turn influences 

larval mortality and ultimately is the 

key factor in population size (Singer 

1972, p. 77; Weiss et al. 1988, p. 1486), 

as we noted in the proposed rule in the 

section titled ‘‘Distribution and 

Population Trends.’’ Variable 

topography (i.e., different slope aspects) 

was included as a PCE (PCE 1) in order 

to support the life cycle of the Bay 

checkerspot butterfly. In addition, we 

included three unoccupied units in San 

Mateo County, because we recognized 

that units in close proximity to one 

another (i.e., many of the units in Santa 

Clara County) would likely experience 

similar environmental conditions. 

Comment 42: One commenter stated 

that the rule should be revised to state 

that only structures present at the time 

of this rulemaking within critical habitat 

are excluded by text and are not 

designated as critical habitat and that 

areas developed after the rule making 

should not be automatically excluded 

by the language of the text. 

Our Response: When determining 

critical habitat boundaries for this rule, 

we made every effort to avoid including 

developed areas such as lands covered 

by buildings, paved areas, and other 

structures that lack PCEs for the Bay 

checkerspot butterfly. The scale of the 

maps prepared under the parameters for 

publication within the Code of Federal 

Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 

final rule have been excluded by text in 

the final rule and are not designated as 

critical habitat. Therefore, on the 

effective date of this rule, Federal 

actions limited to these areas would not 

trigger section 7 consultation, unless 

they may affect the species or PCEs in 

adjacent critical habitat. 

The Service does not believe it would 

be appropriate to state that only areas 

that are developed at the time of this 

rulemaking would not be designated as 

critical habitat. Any area that is 

developed in the future, with or without 

consultation with the Service, would 

then still be considered critical habitat, 

even though it would not contain any of 

the PCEs and no longer support any of 

the species life history requirements. 

Comment 43: Two commenters stated 

that San Bruno Mountain Unit should 

be retained as a critical habitat unit and 

that the proposed rule was confusing 

regarding whether the unit was 

proposed for inclusion or for exclusion. 

In addition, both commenters stated that 

HCPs exist for the purpose of taking 

listed species and that HCPs include 

actions that are harmful to listed 

species. One of these commenters also 

stated the current San Bruno Mountain 

HCP does not provide adequate 

management or protection because it 

does not cover the Bay checkerspot 

butterfly. 

Our Response: We proposed the San 

Bruno Mountain unit for exclusion 

because the existing San Bruno 

Mountain HCP covers all remaining 

habitat for the Bay checkerspot butterfly 

on the mountain, three other listed 

butterflies with some similarities in life 

histories and habitat requirements occur 

on San Bruno Mountain, and 

management of the habitat on the 

mountain for the three other listed 

butterflies is expected to benefit the Bay 

checkerspot butterfly. Additionally, at 

the time of the publication of the 

proposed rule, we expected Amendment 

5 to the San Bruno Mountain HCP, 

which would include coverage specific 

to the Bay checkerspot butterfly, to have 

been finalized prior to the publication of 

this final designation of critical habitat. 

As this amendment is not yet finalized 

as of the writing of the final rule, we reevaluated the proposed exclusion of the 

San Bruno Mountain HCP from critical 

habitat and determined on the basis of 

the record before us not to exclude this 

area (See ‘‘Application of Section 4(b)(2) 

of the Act’’). 

Comment 44: One commenter stated 

that by retaining four units on Coyote 

Ridge, the effects of projects consulted 

on under section 7 of the Act would be 

analyzed at the unit level and that 

combining the units would dilute or 

obscure the analysis of effects. 

Our Response: When analyzing the 

effects of a proposed project on critical 

habitat, the Service analyzes the effects 

of the action and whether the action 

will result in adverse modification or 

destruction of critical habitat on all 

units that have been designated. The 

Service does not typically limit its 

analysis regarding adverse modification 

or destruction of critical habitat to only 

the critical habitat unit in which the 

action is occurring. The Service does 

review the baseline information for the 

unit; however, baseline information will 

be the same for a given area regardless 

of whether the area has been identified 

as one unit or multiple units. 

Comment 45: One commenter stated 

that the Service did not designate 

habitat patches of sufficient number, 

quality, or proximity to ensure the 

survival and recovery of the Bay 

checkerspot butterfly, and at a 

minimum the Service should designate 

as critical habitat the number of habitat 

patches that the Recovery Plan specifies 

as necessary for the recovery of the 

species. 

A second commenter recommended 

clarification in the final rule regarding 

the Service’s statement in the proposed 

rule that the designation of critical 

habitat may not include all habitat areas 

that we may eventually determine 

necessary for recovery. 

Our Response: Each unit is capable of 

supporting multiple populations; we do 

not believe it is necessary to match the 

number of critical habitat units with the 

number of populations identified in the 

Recovery Plan. In addition, the Service 

lacked specific information to indicate if 

any particular areas outside those we 

proposed to designate are essential for 

the conservation of the species. Since 

occupancy at the time of listing or since 

listing was a criterion for determining 

which areas were to be designated as 

critical habitat, additional areas outside 

of those we are designating would not 

meet our criteria. We recognize areas 

other than those we are designating as 

critical habitat, such as those defined in 

the Recovery Plan, may be important for 

the eventual recovery of the Bay 

checkerspot butterfly; however, these 

areas did not meet our criteria for being 

essential to the conservation of this 

butterfly. If such information becomes 

available in the future, the Service will 

consider proposing a revision to the 

critical habitat designation at that time 

or when our resources allow. 

Comment 46: One commenter stated 

the revised PCEs are problematic and 

would result in a reduced protection of 

the species habitat within (and 

potentially that outside of) designated 

units, because the PCEs are hyperspecific, lack any expression for the 

need for dispersal, and may be used 

during section 7 consultations outside 

of critical habitat to determine if a site 

has appropriate habitat or not. The 

commenter recommended revising the 

PCEs. 

Our Response: As noted above in our 

response to Comment 39, according to 

Home Builders Association of Northern 

California v. U.S. Fish and Wildlife 

Service 268 F. Supp. 2d (1197) 2003, the 


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Service must describe the PCEs with a 

certain degree of specificity. We revised 

the list of PCEs from the 2001 rule (66 

FR 21450), in an attempt to comply with 

the requirements as set forth in the 

above mentioned case. 

As noted in our response to Comment 

34, PCE 1 includes both perennial and 

annual grasslands, which in part is to 

facilitate dispersal within units and 

between units. The Santa Teresa Hills 

Unit (Unit 7) includes an area next to 

the Tulare Hill Unit (Unit 6) that was 

specifically included in order to 

facilitate the dispersal of Bay 

checkerspot butterflies from the core 

population along Coyote Ridge on the 

eastern side of Santa Clara Valley, to the 

ridges on the western side of the valley. 

In addition, Unit 9a, 9b, and 10 are also 

considered important for dispersing Bay 

checkerspot butterflies to the southern 

most units (Units 11 and 12) in Santa 

Clara County. 

The Service does not specifically use 

the presence or absence of PCEs outside 

of critical habitat designations to 

determine whether or not an area 

provides habitat for a given species. 

PCEs are only considered when a 

proposed project is within or may affect 

a designated critical habitat unit. The 

presence of all PCEs is not required in 

order to initiate consultation under 

section 7 of the Act. The presence of a 

single PCE within the boundaries of 

critical habitat and the potential effects 

of a proposed project on that PCE is 

sufficient. PCE 4, soils derived from 

serpentinite ultramafic rock (Montara, 

Climara, Henneke, Hentine, and Obispo 

soil series) or similar soils (Inks, 

Candlestick, Los Gatos, Fagan, and 

Barnabe soil series), are present 

throughout the majority of the units, 

and the presence of this PCE alone 

would result in consultation for 

proposed projects with a Federal nexus. 

Comment 47: One commenter stated 

that the Service should undertake the 

establishment of experimental 

populations of the species outside its 

historically known range. 

Our Response: The establishment of 

experimental populations is outside the 

scope of this critical habitat rule. 

Comment 48: One commenter stated 

that given the species’ continued 

decline, the species should be uplisted 

to endangered. 

Our Response: The Service will 

initiate a 5–year review on this species 

in 2008. Recommendations regarding 

the status of a species, including 

whether to uplist, downlist, or delist, 

will be made upon completion of the 5–

year review. 

Comment 49: One commenter stated 

that annual rainfall should be 

considered in the designation of critical 

habitat for the Bay checkerspot 

butterfly, that the Service should 

designate areas that encompass a wide 

range of mean annual rainfall to buffer 

against climate variability and global 

warming, and that ongoing climate 

change is a threat to the species. 

Our Response: See response to 

Comment 41 regarding rainfall. Current 

climate model forecasts vary in their 

predicted outcomes, and range from 

cooler and drier to warmer and wetter 

(Miller et al. 2003; Deffenbaugh et al. 

2005; Leung and Ghan 1999), which 

makes it difficult to adequately assess 

the effects that climate change may have 

on populations of the Bay checkerspot 

butterfly. Further, the Service is not 

aware of climate models that have been 

refined to provide forecasts at the local 

scale, or specifically models that have 

been developed for areas occupied by 

the Bay checkerspot butterfly. 

Despite the lack of a consensus with 

respect to climate change, we 

designated units in both San Mateo and 

Santa Clara Counties, because we 

recognized that units in close proximity 

to one another would likely experience 

similar environmental conditions. We 

designated units in San Mateo County 

that were occupied at the time of 

listing? despite the fact that all the 

units, with the possible exception of 

Edgewood Park, are currently? 

unoccupied and are beyond the reported 

dispersal capabilities of the species from 

occupied sites in Santa Clara County. 

However, based on information 

regarding land use, vegetative cover, soil 

data, and topography, we believe we 

have designated all potential habitats in 

San Mateo County that could support 

the species and meet the definition of 

critical habitat. Our designation is 

supported by two peer reviewers, who 

also believe that the area designated as 

critical habitat covers all remaining 

suitable habitat. 

In addition, as stated above in our 

response to Comment 45 the Service 

lacked specific information to indicate 

whether particular areas outside those 

we are designating are essential to the 

conservation of the species. We do not 

believe it is appropriate to designate 

critical habitat in areas where we are 

lacking adequate information. In the 

proposed rule, we specifically requested 

comments regarding the amount and 

distribution of Bay checkerspot butterfly 

habitat, but we did not receive specific 

responses. If such information becomes 

available in the future, the Service will 

consider proposing a revision to the 

critical habitat designation at that time 

or when our resources allow. 

Comments related to the Draft Economic 

Analysis (DEA) 

Comment 50: One commenter stated 

that specific management actions for 

serpentine soil grasslands, such as 

grazing, had not yet been determined in 

the Santa Clara Valley HCP - NCCP 

(SCVHCP) and therefore should not be 

included in the DEA. 

Our Response: In order to estimate the 

costs of future conservation activities for 

the butterfly, the DEA must predict the 

actions most likely to be taken and 

estimate the amount of resources / 

funding required to implement them. 

Grazing and prescribed burning are 

recommended for serpentine soil 

management in Section 5.3.3 of the 

SCVHCP Working Draft. We recognize 

that these recommendations may change 

as the plan is finalized. However, the 

plan represents the best currentlyavailable information regarding likely 

future conservation activities. Therefore, 

the costs of implementing these 

management actions are included in the 

DEA. 

Comment 51: One commenter asked 

for clarification as to how the economic 

impacts were determined for ‘‘recreation 

and public access’’ in Table 2-1 of the 

DEA. 

Our Response: The impacts for 

‘‘recreation and public access’’ in Table 

2-1 are based on the December 2007 

SCVHCP Implementation Budget 

Preliminary Draft. 

Comment 52: A commenter noted that 

some of the County parks and recreation 

activities within those parks were not 

correctly identified in Table 1-2. The 

commenter also pointed out that County 

parks within proposed critical habitat 

were incorrectly identified in Section 

2.4.3 of the DEA. 

Our Response: Table 1-2 and Section 

2.3.1 (which contains former Section 

2.4.3) were revised to state that Unit 5 

contains Motorcycle County Park, Field 

Sports Park, part of Anderson Lake Park 

and part of Coyote Creek Parkway; and 

Unit 6 contains part of Coyote Creek 

Parkway. Table 1-2 was revised to state 

that Metcalf Park is managed by the City 

of San Jose. Table 1-2 now includes offroad vehicle recreation and a firing 

range in the land use description for 

Motorcycle County Park and Field 

Sports Park. 

Comment 53: A commenter noted that 

the implementation of the grazing 

programs in Santa Teresa County Park 

and Calero County Park will occur 

independently of the implementation 

program identified in the SCVHCP. 

Our Response: Section 2.3.1 (which 

contains former Section 2.4.3) of the 

DEA was revised to clarify that these 


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grazing projects are part of the County’s 

ongoing fire control and invasive plant 

species management and will occur 

independently of the SCVHCP grazing 

program. However, the costs of these 

projects are retained in the analysis, as 

they represent part of the baseline 

protection provided to the habitat. 

Comment 54: A commenter noted that 

Santa Clara County Parks uses many 

methods to manage invasive plant 

species, including prescribed fires, 

herbicide application and manual 

removal, but that livestock grazing is the 

predominant method used. The 

commenter said that County Parks 

conducts prescribed burns infrequently 

and is cutting back on herbicide 

treatment. The commenter noted that 

County Parks will be employing more 

costly methods, such as hand removal 

and grazing, to manage invasive plant 

species in the future. 

Our Response: The DEA was revised 

to qualitatively discuss all potential 

invasive species management options, 

including manual removal, prescribed 

burns, and herbicide application. 

However, according to the County Parks 

Department, these alternative options 

are very rarely used and are expected to 

be used less often in the future. In 

Section 2.3.1, the DEA quantifies the 

costs of grazing programs to manage 

invasive plant species in serpentine soil 

habitats because it is the current 

predominant method and is expected to 

be used even more widely in the future. 

Comment 55: A commenter disagreed 

with the economic analysis’ assessment 

that livestock grazing is cost effective or 

that costs of implementing and 

managing a grazing program are revenue 

neutral. 

The commenter points out that 

fencing costs estimated in the DEA are 

outdated and underestimated. 

Additionally, the costs of fencing do not 

include the associated costs for surveys, 

plan development, administrative costs, 

or development of other related 

infrastructure such as water sources for 

livestock. The commenter requested that 

the economic analysis consider the 

implementation, administrative, and 

management costs associated with the 

grazing programs in addition to the 

fencing construction costs. 

Our Response: Section 2.3.1 of the 

DEA was revised to better quantify all 

the costs of implementing a grazing 

program, including costs of all 

infrastructure, planning, and 

management. The DEA also includes the 

best estimates of revenues from leasing 

the land to grazers. The updated cost 

and revenue information were obtained 

from the County of Santa Clara Parks 

and Recreation Department. 

Summary of Changes from the Proposed 

Rule 

The areas identified in this final rule 

constitute a revision from the areas we 

proposed as critical habitat for Bay 

checkerspot butterfly on August 22, 

2007 (72 FR 48178). The primary 

differences include the following: 

(1) Our proposed rule excluded Unit 

1. The final rule includes Unit 1 as 

designated critical habitat. 

(2) The 2007 revised proposed critical 

habitat rule consisted of 12 units 

comprising a total of 19,746 ac (7,990 

ha). The majority of the final units 

correspond to those in the revised 

proposed rule. However, we have 

refined the units to eliminate areas that 

are unlikely to support the PCEs such as 

areas that are forested or areas that were 

developed. Proposed rule Unit 5 was 

split into two individual units, Unit 5 

and Unit 13. This was done to remove 

intervening areas that did not contain 

the features essential to the conservation 

of the Bay checkerspot butterfly. This 

final designation of critical habitat 

consists of 13 units. 

(3) We have clarified the list of 

specific species in PCE 1 to state that 

the list of grassland species is an 

example of species common to 

grasslands in California, and since 

nonnative grasses are more common 

than native species, we include 

nonnative species in the example. The 

presence of any specific grass or grasses 

listed in the PCE is not required, and is 

not provided as a means to measure 

habitat quality, but merely as an 

indicator of grassland habitat. 

(4) We have removed PCE 4 from the 

revised proposed designation, as well as 

mention of water in other PCEs. All 

three peer reviewers stated the use of 

water was overemphasized in the 

revised proposed rule. All three peer 

reviewers stated that the Bay 

checkerspot butterfly is opportunistic 

with regard to water and will use it 

when water is present and there is a 

need for water, but that absence of water 

did not influence the presence or 

absence of the subspecies. 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as: 

(1) 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 

(a) essential to the conservation of the 

species and 

(b) that may require special 

management considerations or 

protection; and 

(2) 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, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, 

transplantation, and in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot otherwise be relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect 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 the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

requests federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) would apply, but even in the 

event of a destruction or adverse 

modification finding, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time of listing must 

contain the physical or biological 

features that are essential to the 

conservation of the species, and be 

included only if those features may 

require special management 

considerations or protection. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(areas on which are found the PCEs laid 


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out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species). Under the Act, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed as 

critical habitat only when we determine 

that those areas are essential for the 

conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106-554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our biologists, to 

the extent consistent with the Act and 

with the use of the best scientific data 

available, to use primary and original 

sources of information as the basis for 

recommendations to designate critical 

habitat. 

When we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may 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. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat designated at a particular 

point in time may not include all of the 

habitat areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not promote the recovery of the species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designations, 

will continue to be subject to 

conservation actions that we and other 

Federal agencies implement under 

section 7(a)(1) of the Act. Areas that 

support populations are also subject to 

the regulatory protections afforded by 

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

determined on the basis of the best 

available scientific information at the 

time of the agency 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, 

HCPs, or other species conservation 

planning efforts if the best scientific and 

commercial information available at the 

time of these planning efforts calls for 

a different outcome. 

Methods 

As required by section 4(b) of the Act, 

we used the best scientific data 

available in determining areas that 

contain the features essential to the 

conservation of the Bay checkerspot 

butterfly, areas unoccupied at the time 

of listing that are essential to the 

conservation of the Bay checkerspot 

butterfly, or both. This includes 

information used to prepare the 2001 

designation of critical habitat (66 FR 

21450), the Recovery Plan for 

Serpentine Soil Species of the San 

Francisco Bay Area, the CNDDB, 

published and unpublished papers, 

reports, academic theses and surveys, 

Geographic Information System (GIS) 

data (such as species occurrence, soil 

data, land use, topography, and 

ownership maps), correspondence to the 

Service from recognized experts, and 

other information as available. 

We have also reviewed available 

information that pertains to the habitat 

requirements of this species, including: 

• Data in reports submitted during 

section 7 consultations and submitted 

by biologists holding section 10(a)(1)(A) 

recovery permits; 

•Research published in peer-reviewed 

articles and presented in academic 

theses and agency reports; 

• Information from species experts; 

and 

• Information gathered during site 

visits to Bay checkerspot butterfly 

habitat in Santa Clara County. 

Primary Constituent Elements (PCEs) 

In accordance with section 3(5)(A)(i) 

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical or biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection. We consider the physical or 

biological features to be the PCEs laid 

out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species. The PCEs include: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

The specific PCEs required for the Bay 

checkerspot butterfly are derived from 

the biological needs of the Bay 

checkerspot butterfly as described in the 

Background sections of the August 22, 

2007, proposed critical habitat rule (72 

FR 48178) and in the final listing rule 

published in the Federal Register on 

September 18, 1987 (52 FR 35366). 

Space for Individual and Population 

Growth and for Normal Behavior 

The Bay checkerspot butterfly occurs 

in open grassland habitats of the San 

Francisco Bay in Santa Clara and San 

Mateo counties. Prior to European 

settlement, California grasslands are 

believed to have been comprised of 

perennial bunchgrasses with both 

annual and perennial forbs (Jackson 

1985, p. 349; Huenneke et al. 1990, p. 

478; Corbin and D’Antonio 2004, p. 

1273). Today, grassland habitats in 

California are almost entirely composed 

of Eurasian annual grasses and forbs 

(Jackson 1985, p. 349; Huenneke et al. 

1990, p. 478; Seabloom et al. 2003, p. 

13384; Malmstrom et al. 2005, p. 154) 

where classical succession does not 

occur (Huenneke et al. 1990, p. 478; Kie 

2005, p. 2). Plant density in nonnative 

grasslands is extremely high compared 

to plant density in native grasslands 

(Malmstrom et al. 2005, p. 154). Dyer 

and Rice (1997, pp. 484, 490) estimated 

that pre-settlement densities of some 

native species was between 1-7 mature 

individuals per square meter. This is in 

sharp contrast to densities of several 

nonnative grasses and forbs; a study by 

Biswell and Graham (1956, pp. 116-117) 

found densities of some nonnative 

species, such as Bromus hordeaceus, 

Erodium botrys, and Festuca megalura, 

to be 20,000 to 78,000 mature 

individuals per square meter. Heady 

(1958, p. 405) observed somewhat lower 

densities than Biswell and Graham 

(1956) of the same species with 

densities ranging from 4,750 to 28,370 

mature individuals per square meter. 

This suggests that grasslands with 


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nonnative species have large numbers of 

individuals, but few species (i.e., low 

diversity). According to Malmstrom et 

al. (2005, p. 154), California native 

grasslands, prior to the introduction of 

Eurasian vegetation, were likely a mix of 

forbs and grasses, but today these 

species are out-competed by nonnative 

grasses. 

Serpentine or serpentine-like soils are 

characterized as shallow, nutrient poor 

(typically lacking in nitrogen and 

calcium), containing high magnesium 

(and other heavy metals), and with low 

water-holding capacity. All currently 

occupied habitats of the Bay 

checkerspot butterfly occur on 

serpentine or serpentine-like grasslands 

that support at least two of the 

subspecies’ larval host plants. Due to 

poor nutrient availability, as well as 

other soil characteristics, serpentine and 

serpentine-like grasslands are, for the 

most part, inhospitable to the nonnative 

grasses and forbs that dominate other 

California grassland ecosystems; these 

areas are essentially isolated patches 

where native grassland vegetation is 

capable of persisting in a landscape that 

is otherwise dominated by nonnative 

and invasive species. These soils 

support many rare plant species 

including populations of the Bay 

checkerspot butterfly’s larval host plants 

Plantago erecta, Castilleja densiflora, 

and Castilleja exserta. However, these 

remnant native grasslands are being 

invaded and crowded out by nonnative 

species and are under increased 

pressure as a result of nitrogen 

deposition primarily caused by air 

pollution (Weiss 1999, p. 1477). The 

enrichment of these soils with nitrogen 

has allowed nonnative grasses to invade 

these traditionally nutrient poor 

habitats, and the result is a thick mat of 

standing vegetation (thatch). Dense 

thatch has been reported to inhibit the 

growth of native forbs (Huenneke et al. 

1990, p. 488). Huenneke et al. (1990, p. 

489) found that treatment areas that 

were fenced to prevent grazing resulted 

in an increase in native perennial and 

nonnative annual grasses, but in grazed 

treatments, forbs continued to represent 

an important component. Low and 

moderate grazing regimes, 

approximately one cow per 10 acres, 

have been implemented on portions of 

Tulare Hill and Coyote Ridge. Because 

cattle tend to select nonnative grasses 

over native forbs (Weiss 1999, p. 1484), 

the result of these grazing regimes has 

been local increases of the Bay 

checkerspot butterfly’s larval host 

plants. 

The Bay checkerspot butterfly 

requires areas with topographic 

diversity (warm south and west slopes 

as well as cool north and east slopes), 

because some slopes become 

unfavorable depending on annual 

weather conditions and time of year. 

Fleishman et al. (2000, p. 34) defined 

warm and very warm slopes as southand west-facing slopes with a tilt greater 

than 11 and 17 degrees, respectively, 

with cool and very cool slopes defined 

as those facing north or east with a tilt 

greater than 11 and 17 degrees, 

respectively. Harrison et al. (1988, p. 

365) defined warm slopes as those 

facing south, southwest, and southeast 

with a tilt greater than 7 degrees and 

cool slopes as those facing north or 

northeast with a tilt greater than 7 and 

12 degrees, respectively. In hot, dry 

years, north-and east-facing slopes 

remain cool and moist longer and larval 

host plants tend to senesce (reach later 

maturity; grow old) later than those on 

other slopes (Weiss et al. 1988, p. 1493; 

Fleishman et al. 2000, p. 33). The 

delayed senescence of plants on cool, 

moist slopes allows larvae to reach their 

fourth instar (larval development stage 

or molt) and enter diapause (dormancy) 

before host plants become inedible. 

Larvae that are not able to enter 

diapause prior to host plant senescence 

starve and die (Singer and Ehrlich 1979, 

p. 54; White 1987, p. 209; Weiss 1996, 

p. 6). Because host plants on cool slopes 

can flower and senesce 3 or more weeks 

after those on warmer slopes (Weiss et 

al. 1988, p. 1493), cool slopes are 

especially important during extremely 

dry years (i.e., droughts). However, 

larval feeding and growth tends to 

increase on warm slopes because they 

receive more solar exposure than other 

slopes; this allows post-diapause larvae 

to grow quickly and pupate earlier than 

those on cool slopes. Individuals that 

pupate earlier have a much greater 

chance of reproductive success (Weiss 

et al. 1988, pp. 1493-94). 

In addition to weather, slope is 

important relative to the timing of egg 

laying. As the adult mating season 

(referred to as the flight season) 

progresses, females tend to lay more 

eggs on cool slopes than on warm slopes 

(Weiss et al. 1988, p. 1493). The timing 

of the adult flight season varies with 

weather, but can generally be described 

as occurring from late February to early 

May (Murphy et al. 2004, p. 25). Larvae 

that hatch late in the flight season have 

a greater chance of reaching diapause on 

cooler slopes than those laid at the same 

time on warm slopes, because host 

plants mature later on cool slopes. The 

pattern of larval survivorship across 

different slopes changes from one year 

to the next as well as within years; 

therefore, it becomes important that a 

variety of slopes and aspects are present 

to support the butterfly and its host 

plants. 

Food 

The primary larval host plant for the 

Bay checkerspot butterfly is a small, 

annual, native plantain (Plantago 

erecta). The Bay checkerspot butterfly 

also requires the presence of a 

secondary host plant, either purple 

owl’s-clover (Castilleja densiflora) or 

exserted paintbrush (Castilleja exserta) 

(Singer 1972, p. 76; Murphy and Ehrlick 

1980, p. 316; Fleishman et al. 1997, p. 

32; Weiss 1999, p. 1478; Hellman 2002, 

pp. 926, 931). The need for a secondary 

host plant is related to the timing of 

senescence of the primary host plant. In 

many years, the primary host plant dries 

up before larvae have reached their 

fourth instar and entered diapause. 

Because purple owl’s-clover and 

exserted paintbrush tend to senesce 

later than the plantain, larvae that 

switch to these plants may extend their 

feeding season long enough to reach 

their fourth instar. The terms ‘‘primary’’

and ‘‘secondary’’ also loosely refers to 

the host plant that females most 

commonly oviposit (lay eggs) on 

Plantago erecta in some locations, such 

as Jasper Ridge; however, at Edgewood 

approximately 70 percent of oviposition 

occurred on Castilleja and that in the 

1980s approximately 20 percent of 

oviposition at Kirby Canyon (the 

southern portion of the Kirby Unit) 

occurred on Castilleja. 

Adult Bay checkerspot butterflies 

utilize nectar from a variety of plants 

associated with serpentine grasslands. 

Commonly used nectar plants include 

desert parsley (Lomatium spp.), 

California goldfields (Lasthenia 

californica), tidy-tips (Layia 

platyglossa), sea muilla (Muilla 

maritima), scytheleaf onion (Allium 

falcifolium), false babystars (Linanthus 

androsaceus), and intermediate 

fiddleneck (Amsinckia intermedia). Egg 

production (both size of individual eggs 

and number of eggs) significantly 

increases with the intake of nutrients 

(Murphy et al. 1983, p. 261; Boggs 

1997a, pp.181, 184). Murphy et al. 

(1983, p. 261) observed increased 

longevity and reduced weight loss in 

adult Bay checkerspot butterflies that 

were fed sugar. Murphy et al. (1983, p. 

261) also observed that amino acid 

intake produced heavier eggs and that 

larvae from these eggs had an increased 

likelihood of survival. A study by 

O’Brien et al. (2004, p. 286), which 

examined egg production and adult diet 

in three species of butterflies in the 

family Nymphalidae, found the percent 

of carbon in eggs, derived from adult 


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diets, increased with time (up to 80 

percent in one species). Currently there 

is no information regarding nectar usage 

on adult male longevity or reproduction. 

All of the host plants have ranges 

greater than that of the Bay checkerspot 

butterfly, and the larval plants may be 

found in areas that do not meet the lifehistory requirements of the Bay 

checkerspot butterfly. For example, 

Castilleja densiflora historically 

occurred throughout California, 

Plantago erecta occurred throughout 

California and Oregon, and Castilleja 

exserta occurred in California, Arizona, 

New Mexico, Hawaii, and 

Massachusetts (USDA 2007). In 

addition, the range of many of the nectar 

sources is also much greater than the 

geographic range of the Bay checkerspot 

butterfly. 

Soils 

The Bay checkerspot butterfly 

inhabits areas with soils derived from 

serpentinite ultramafic rock (Montara, 

Climara, Henneke, Hentine, and Obispo 

soil series) or similar nonserpentine 

soils (such as Inks, Candlestick, Los 

Gatos, Fagan, and Barnabe soil series). 

Serpentine soils are characterized as 

having low amounts of nutrients (such 

as nitrogen and calcium); high 

concentrations of magnesium; low 

water-holding capacity; and patches of 

heavy metals. These characteristics 

create a refuge for many rare native 

plants, because other plant species are 

not capable of surviving in these soils 

(nitrogen is often a limiting factor in 

plant growth). The nonserpentine soils 

mentioned above have characteristics 

that allow them to support grassland 

communities similar to those on 

serpentine soils, such as low waterholding capacity, slight to moderate 

acidity (pH 5.8), and varied topography 

(slopes ranging from 5 to 75 percent). 

Together, these soils provide the last 

remaining habitat within the geographic 

range of the Bay checkerspot butterfly 

where the larval host plants are capable 

of persisting and not be outcompeted or 

crowded out by introduced annuals. 

Some researchers have hypothesized 

that the Bay checkerspot butterfly once 

occurred widely in nonserpentine 

grasslands throughout the San Francisco 

Bay area prior to the invasion of 

nonnative invasive grasses and forbs 

(Murphy and Weiss 1988, p. 197), but 

has subsequently been relegated to these 

fragmented habitats due to plant 

competition. 

Cover 

Larval Bay checkerspot butterflies 

enter diapause in order to survive the 

summer dry period, once their host 

plants senesce. Diapause is an 

obligatory dormancy period that begins 

once larvae reach their fourth instar, 

which takes approximately 3 weeks, but 

may vary considerably depending on 

abiotic factors (non-living components 

of the biosphere) (Kuussaari, et al. 2004, 

p. 140). Singer (2008, p. 1) observed 

repeat diapause in small post diapause 

larvae in laboratory environments. 

Other researchers (White and Levin 

1981, p. 355; Harrison 1989, p. 1242; 

Kuussaari et al. 2004, pp. 139-140; 

Mattoni et al. 1997, p. 106) also provide 

evidence that larvae are capable of 

entering diapause more than once. 

Diapause continues until the summer 

dry period is broken by the onset of the 

rainy season, generally some time in 

November–January (Weiss 1996, p. 6). 

The larvae pass through diapause in 

holes and cracks in the soil and under 

rocks (White 1987, p. 209; Weiss 1996, 

p.7) that provide protection from 

weather, predation, and parasitism. 

White (1986, p. 58) observed that pupal 

mortality rates, as well as cause of 

mortality (i.e., predation, parasitism, 

crushing, or disease), varied 

significantly depending on location, 

with significant differences in mortality 

between microhabitat types. For 

example, crushing was most likely in 

areas of bare ground, whereas pupae in 

areas with dense vegetation had a higher 

rate of mortality due to mold and 

viruses. 

Primary Constituent Elements for the 

Bay Checkerspot Butterfly 

Based on the above needs and our 

current knowledge of the life history, 

biology, and ecology of the species and 

the habitat requirements for sustaining 

the essential life history functions of the 

species, we have determined that Bay 

checkerspot butterfly PCEs are: 

(1) The presence of annual or 

perennial grasslands with little to no 

overstory that provide north–south and 

east–west slopes with a tilt of more than 

7 degrees for larval host plant survival 

during periods of atypical weather (for 

example, drought). 

Common grassland species include 

wild oats (Avena fatua), soft chess 

(Bromus hordeaceus), California 

oatgrass (Danthonia californica), Italian 

ryegrass (Lolium multiflorum), purple 

needlegrass (Nassella pulchra), and 

Idaho fescue (Festuca idahoensis); less 

abundant in these grasslands are annual 

and perennial forbs such as filaree 

(Erodium botrys), true clovers (Trifolium 

sp.), and dwarf plantain (Plantago 

erecta). These species, with the 

exception of dwarf plantain, are not 

required by the Bay checkerspot 

butterfly, but merely are provided here 

as an example of species commonly 

found in California grasslands. 

(2) The presence of the primary larval 

host plant, dwarf plantain (Plantago 

erecta), and at least one of the secondary 

host plants, purple owl’s-clover 

(Castilleja densiflora) or exserted 

paintbrush (Castilleja exserta), are 

required for reproduction, feeding, and 

larval development. 

(3) The presence of adult nectar 

sources for feeding. Common nectar 

sources include desert parsley 

(Lomatium spp.), California goldfields 

(Lasthenia californica), tidy-tips (Layia 

platyglossa), sea muilla (Muilla 

maritima), scytheleaf onion (Allium 

falcifolium), false babystars (Linanthus 

androsaceus), and intermediate 

fiddleneck (Amsinckia intermedia). 

(4) Soils derived from serpentinite 

ultramafic rock (Montara, Climara, 

Henneke, Hentine, and Obispo soil 

series) or similar soils (Inks, 

Candlestick, Los Gatos, Fagan, and 

Barnabe soil series) that provide areas 

with fewer aggressive, nonnative plant 

species for larval host plant and adult 

nectar plant survival and reproduction. 

(5) The presence of stable holes and 

cracks in the soil, and surface rock 

outcrops that provide shelter for the 

larval stage of the Bay checkerspot 

butterfly during summer diapause. 

With this final designation of critical 

habitat, we intend to conserve the 

physical and biological features 

essential to the conservation of the 

species, which support the life history 

functions of the species, through the 

identification of the appropriate 

quantity and spatial arrangement of 

areas containing the PCEs. Some units 

contain all of these PCEs and support 

multiple life processes, while some 

units contain only a portion of these 

PCEs, those necessary to support the 

species’ particular use of that habitat. 

Because not all life history functions 

require all the PCEs, not all critical 

habitat units will contain all the PCEs. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing and to 

contain the physical and biological 

features essential to the conservation of 

the species may require special 

management considerations or 

protection. Threats to those features we 

identify as the PCEs laid out in the 

appropriate quantity and spatial 

arrangement for conservation of the Bay 

checkerspot butterfly include habitat 

loss and fragmentation, invasion of 

exotic plants, nitrogen deposition 

(including NOx and ammonia), pesticide 


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application (including drift), illegal 

collecting, fire, overgrazing, and gopher 

control. 

We have determined that the essential 

features in critical habitat units 1, 2, 4, 

5, 6, 7, 8, 9, 10, and 13 may require 

special management considerations or 

protection due to threats posed by 

habitat loss and fragmentation resulting 

from urban and suburban growth. 

Development pressure in Santa Clara 

County is likely to increase in the 

foreseeable future. The City of San Jose 

has developed a general plan to guide 

development in the area into the year 

2020. Portions of the general plan share 

boundaries with critical habitat units, 

including Units 4, 5, 6, 7, and 9. Some 

currently or proposed projects include 

the Coyote Valley Research Park, 

numerous projects currently proposed 

for inclusion under the Santa Clara 

Habitat Conservation Plan, as well as 

numerous single family residential units 

and road grading projects. In 1997, the 

California Court of Appeals 6th District 

found that the City of San Jose’s zoning 

did not have to be consistent with the 

City’s General Plan (Juarez et al. v. City 

of San Jose et al. (6th District, Case No. 

CV736436 H014755)); this may result in 

areas not currently within the urban 

growth boundary still being proposed 

for development, including those areas 

that are environmentally sensitive such 

as critical habitat units. In addition, 

portions of Unit 10 are within the 

planning boundaries of the City of 

Morgan Hill’s general plan. 

We have determined that the essential 

features in all final critical habitat units 

may require special management 

considerations or protection due to the 

threats posed by the invasion of 

nonnative vegetation that result from air 

pollution (primarily nitrogen 

deposition) (Weiss 1999, p. 1477). 

Nitrogen deposition enriches serpentine 

and serpentine-like soils that are usually 

nutrient poor. Increased nitrogen 

(typically a limiting factor in plant 

growth) in these areas has resulted in 

the accumulation of a thick carpet of 

vegetative material (thatch) each year. 

Dense thatch has been reported to 

inhibit the growth of native forbs 

(Huenneke et al. 1990, p. 488). The 

increased density of nonnative 

vegetation would negatively affect the 

Bay checkerspot butterfly’s host plant 

through competition and crowding 

(Weiss 1999, p. 1481). 

The essential features in all final 

critical habitat units may require special 

management considerations or 

protection due to the threats posed by 

pesticide use. Use of pesticides (for 

example, insecticides and herbicides) in 

or adjacent to critical habitat may affect 

populations of butterflies within these 

units. Populations adjacent to areas 

where there is intensive use of 

pesticides may be at risk as a result of 

drift and runoff. In at least one instance, 

larvae appeared to have survived a 

direct application of malathion by the 

California Department of Food and 

Agriculture; however, the application 

was conducted in the fall of 1981 when 

larvae were still in diapause. 

We have determined that he essential 

features in all final critical habitat units 

may require special management 

considerations or protection due to the 

threat posed by fire. No Bay checkerspot 

butterflies were seen on San Bruno 

Mountain after a wildfire swept across 

portions of the mountain in 1986. 

However, only about 50 adult butterflies 

were observed on the mountain in 1984 

(CNDDB 2006), so their subsequent 

disappearance may not have been solely 

related to the 1986 fire. The use of fire 

as a management regime in serpentine 

grasslands has not been well studied. 

Studies that have been conducted are 

primarily monitoring opportunities 

made possible after wildfires. 

Use of prescribed burns may be an 

effective management tool depending on 

timing, intensity, and size of the area 

burned. Prescribed burns are widely 

used as a land management tool to 

counter the invasion of nonnative and 

invasive plant species and to stimulate 

growth and reproduction of those 

species adapted to disturbance. An 

experimental prescribed burn was 

conducted over a small portion of 

Coyote Ridge (portions of Unit 13) in 

2006 and 2007. A third burn is proposed 

for 2008, with results available 

sometime in early 2009. A portion of the 

Tulare Hill Unit was burned in late-May 

2004 and since that time vegetative 

surveys have been conducted at this 

site. These studies were established to 

document differences between grazedburned, ungrazed-burned, and 

ungrazed-unburned treatments. Sites 

that had grazed-burned treatments had 

the highest percentage of Plantago 

erecta than any other sites (including 

several sites within Unit 13). In 2005, 

Plantago erecta cover was 

approximately 16.7 percent at grazedburned sites compared to 13.9 percent at 

ungrazed-unburned sites (CH2M Hill 

2006, p. 6-2). Similar results were 

obtained in 2007, with Plantago erecta 

cover being highest at grazed-burned 

sites (8.6 percent) (CH2M Hill 2008, p. 

6-1). Nectar plants on Tulare Hill were 

also highest in grazed-burned sites (4.1 

percent) and low at ungrazed-unburned 

sites (1.5 percent) (CH2M Hill 2006, p. 

6-2). Bunchgrass cover and native plant 

cover was also highest in grazed-burned 

sites on Tulare Hill in 2005, 3.5 percent 

for bunchgrasses and 58 percent for 

native plant cover (CH2M Hill p. 6-2). 

We also find that the essential 

features in all occupied final critical 

habitat units may require special 

management considerations or 

protection due to the threat posed by 

illegal collecting. The collecting of 

butterflies as a hobby is well known. 

The collection and trade of butterflies, 

especially rare species, is well 

documented. The Bay checkerspot 

butterfly’s rarity and beauty make it a 

desirable addition to butterfly 

collections. Because butterfly numbers 

are so low, the collection of even a few 

individuals could harm the butterfly 

population. Collecting is illegal without 

a permit from the U.S. Fish and Wildlife 

Service. Providing the public 

information regarding the detrimental 

effects of collecting rare species may 

assist in the conservation of Bay 

checkerspot butterfly. 

We have determined that the essential 

features in all final critical habitat units 

may require special management 

considerations or protection due to the 

threat posed by overgrazing or 

undergrazing. Although grazing is 

frequently used as a management tool to 

reduce standing biomass of nonnative 

vegetation, overgrazing can be a 

potential threat if grazing densities are 

not appropriately managed. Huenneke 

et al. (1990, p. 489) and Weiss (1999, p. 

1480) found that areas that were fenced 

to prevent grazing or sites where grazing 

had been removed resulted in an 

increase in annual grasses, which crowd 

out forbs including those that are 

essential to the Bay checkerspot 

butterfly. Forbs continued to be an 

important component in areas that 

included limited grazing. Therefore, we 

consider limited grazing to be primarily 

beneficial to Bay checkerspot habitat. 

We also find that the essential 

features in all final critical habitat units 

may require special management 

considerations or protection due to the 

threats posed by gopher control. Larval 

host plants have been observed to stay 

green and edible longer when located on 

or near soils recently tilled by gophers 

(Thomomys bottae) (Singer 1972, p. 75; 

Murphy et al. 2004, p. 26). Huenneke et 

al. (1990, p. 490) hypothesized that soil 

disturbance by gophers may limit the 

performance of grasses similar to results 

caused by grazing, with grazers reducing 

the standing grass biomass in a system, 

which allowed the persistence of small 

forbs. Larval host plants that stay green 

longer into the dry season may allow 

prediapause larva to reach the fourth 

instar. 


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Criteria Used To Identify Critical 

Habitat 

Geospatial datasets were used within 

ArcGIS/ArcMap 9.2 (Environmental 

Systems Research Institute, Redlands, 

California) and analyzed to define the 

areas that best contain the features that 

are essential to the conservation of the 

Bay checkerspot butterfly. To delineate 

the units of critical habitat, we plotted 

all occurrence records of Bay 

checkerspot butterfly from the time of 

listing to the present on maps as 

polygons. We then examined whether 

these areas supported the PCEs. 

We have defined critical habitat in 

this rule as: (1) Those grasslands on 

serpentine or serpentine-like soils 

containing the PCEs that were occupied 

by the Bay checkerspot butterfly at the 

time of listing in 1987, and (2) those 

grasslands on serpentine or serpentinelike soils containing the PCEs that have 

been occupied since the time of listing. 

Units did not have to contain all PCEs. 

We used information compiled for the 

proposed and final listing rules; reports 

prepared by San Mateo County Parks, 

Santa Clara County Parks, the CNDDB, 

researchers, and consultants; and 

published and unpublished literature to 

identify the specific locations occupied 

by the Bay checkerspot butterfly at the 

time of listing and currently occupied. 

The currently occupied habitat for the 

Bay checkerspot butterfly is highly 

fragmented and isolated; the majority of 

all extant occurrences are within an 

approximate 9-mile (14.5-kilometer) 

radius in Santa Clara County, California. 

The population estimates in San Mateo 

County are extremely small and those in 

Santa Clara County have declined 

significantly in recent years. As a result 

of population declines and fragmented 

habitats, we are designating all areas 

currently known to support the Bay 

checkerspot butterfly as critical habitat. 

Several areas occupied by the Bay 

checkerspot butterfly at the time of 

listing are not currently occupied. Some 

of these areas have been surveyed since 

listing and no Bay checkerspot 

butterflies were observed; however, not 

all of the units have been recently 

surveyed and, due to the 

metapopulation dynamics of the 

subspecies, it is possible that the 

subspecies has recolonized some of 

these areas. The metapopulation 

dynamics of the subspecies have shown 

that population fluctuations occur and 

extirpation and recolonization is a 

normal occurrence for the Bay 

checkerspot butterfly (Ehrlich et al. 

1975, pp. 221-228; 1980; Harrison 1994, 

pp. 111-128). The units that have been 

surveyed since the time of listing 

without observations of the subspecies 

include Pulgas Ridge and Jasper Ridge 

Biological Preserve in San Mateo 

County, California. We are designating 

these areas as critical habitat because 

they were all occupied at the time of 

listing and currently contain the 

features essential to the conservation of 

the species and designation of these 

units will reduce the likelihood of 

extinction by providing source (larger 

patches of high-quality habitat) or sink 

(small patches of marginal habitat) areas 

and ‘‘stepping stone’’ (often smaller, 

unconnected areas that bridge the 

distance between larger blocks of 

suitable habitat) habitats for the 

subspecies. Since the Bay checkerspot 

butterfly is susceptible to extreme 

weather events these additional units in 

San Mateo County will also reduce the 

risk of extinction from stochastic natural 

events and extreme weather conditions, 

and will help to ensure survival of the 

subspecies by providing potential 

dispersal habitat for individuals that 

were reintroduced to Edgewood Park 

early in 2007. 

The distribution of critical habitat 

areas (occupied and currently 

unoccupied) was selected to help 

reduce the level of habitat fragmentation 

associated with a federal agency action 

within the geographic range of the Bay 

checkerspot butterfly by providing 

dispersal and recolonization 

opportunities for the subspecies. The 

butterfly is considered relatively 

sedentary (Ehrlich 1965, p. 333; 

Harrison 1989, pp. 50-51; Singer and 

Hanski 2004, p. 187) and reduced 

fragmentation should facilitate 

movements between habitat patches. 

McKechnie et al. (1975, p. 561) 

observed that, out of several years of 

mark recapture studies, only 1.7 percent 

of males and 4.8 percent of females 

moved a distance of approximately 

1,600 feet (ft) (500 meter (m)). These 

figures are consistent with observations 

made by Weiss (1996, p. 93) who 

reported that adult movement declined 

with increasing distance with only 

about 5 percent moving between 656 to 

984 ft (200 to 300 m). 

Although the butterfly is considered 

sedentary, long-distance movements 

have been documented. The longest 

documented movements observed by 

Harrison (1989, p. 1239) were 3.5 mi 

(5.6 km) for one male and 2 mi (3.2 km) 

for one female. Murphy (Service 2001, 

p. 21451) reported movement of Bay 

checkerspot butterflies of 4.7 mi (7.6 

km). Harrison et al. (1988, p. 371) 

hypothesized that habitats greater than 

4.3 to 5.0 mi (7 to 8 km) from a source 

population (Coyote Ridge in the study) 

were unlikely to ever sustain 

populations of the Bay checkerspot 

butterfly. This hypothesis was based on 

the presence or absence of adult Bay 

checkerspot butterflies in Santa Clara 

County in apparently suitable habitat 

and their relative distance from Coyote 

Ridge. The study was not designed to 

predict the Bay checkerspot butterfly’s 

upper limit of dispersal. Harrison (1989, 

p. 371) hypothesized that the rate of 

colonization, relative to the rate of 

extinction, was too low to maintain 

populations of the Bay checkerspot 

butterfly on distant habitat patches 

(distant from a source patch; that is, 

greater than 5.0 mi (8 km)). Harrison et 

al. (1988) modeled two scenarios: (1) 

50–year extinction (based on patterns of 

extreme drought in California), and (2) 

continuous extinction (based on 

stepping stone habitat or population). 

The continuous model indicated that a 

small habitat patch (2.22 ac (0.9 ha)) 

would experience extinction events 

once every 1 to 13 years, while larger 

patches (615.29 ac (249 ha)) would go 

extinct once every 12 to 26 years 

(Harrison et al. 1988, p. 377). The rate 

of colonization in Harrison et al. (1988) 

was variable and depended on both 

habitat patch size as well as distance 

from a source population. Given the 

subspecies’ historical distribution, its 

metapopulation dynamics, and its 

sedentary tendencies, reducing habitat 

fragmentation, by designating occupied 

and currently unoccupied habitats that 

provide quality stepping stone habitat, 

will increase the likelihood of 

recolonization of more distant patches 

of suitable habitat. 

We have determined that, due to the 

limited availability of habitat for the 

subspecies, its limited distribution, and 

its generally low dispersal tendencies, 

the long-term conservation of the Bay 

checkerspot butterfly is dependent upon 

the protection of all habitat that was 

occupied at the time of listing as well 

as additional habitat that is currently 

occupied. The presence of all six PCEs 

was not a requirement to designating a 

unit as critical habitat; however, all 12 

units currently support all six PCEs. 

When determining the revisions to 

critical habitat boundaries for this final 

rule, we made every effort to avoid 

including developed areas such as 

buildings, paved areas, and other 

structures that lack PCEs for the Bay 

checkerspot butterfly. The scale of the 

maps we prepared under the parameters 

for publication within the Code of 

Federal Regulations may not reflect the 

exclusion of such developed areas. Any 

such structures and the land under them 

at the time of this designation and 

inadvertently left inside critical habitat 

boundaries shown on the maps of this 


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final critical habitat have been excluded 

by text in this final rule. Therefore, 

Federal actions limited to these areas 

would not trigger section 7 consultation 

with respect to critical habitat and the 

requirement of no adverse modification 

unless they may affect the subspecies or 

primary constituent elements in 

adjacent critical habitat. 

All final critical habitat units are 

within areas that we have determined 

were occupied at the time of listing or 

are currently occupied, and are the 

appropriate quantity and spatial 

arrangement of areas containing the 

PCEs to constitute the physical and 

biological features essential to the 

conservation of the species, which 

support the life history functions of the 

species. 

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

authorizes us to issue permits for the 

take of listed animal species incidental 

to otherwise lawful activities. An 

incidental take permit application must 

be supported by an HCP that identifies 

conservation measures that the 

permittee agrees to implement to 

minimize and mitigate the impacts on 

the species by the requested incidental 

take. We often exclude non-Federal 

public lands and private lands that are 

covered by an existing operative HCP 

and executed implementation 

agreement (IA) under section 10(a)(1)(B) 

of the Act from designated critical 

habitat because the benefits of such 

exclusions outweigh the benefits of 

inclusion as discussed in section 4(b)(2) 

of the Act. To date, two HCPs, Pacific 

Gas and Electric’s (PG&E) Metcalf 

Evendale–Monta Vista Line and their 

Metcalf-El Patio and Hicks–Vasona 

Lines, are the only HCPs that have been 

completed that include the Bay 

checkerspot butterfly as a covered 

species. PG&E’s Evendale–Monta Vista 

Line HCP was issued in 1998, was in 

effect for 3 years, and covered 

approximately 4 ac (1.6 ha). Because 

this HCP has expired, we are not 

excluding lands once covered under this 

HCP. PG&E’s Metcalf-El Patio and 

Hicks–Vasona Lines HCP covers 

temporary effects to 2.4 ac (0.97 ha). The 

HCP was issued in 2008 and is in effect 

for a period of 3 years. Because this HCP 

covers temporary effects, covers only a 

small area, and is in effect for only 3 

years, we are not excluding lands 

covered under this HCP. We reevaluated our proposed exclusion of the 

San Bruno Mountain HCP and 

determined not to do so on the basis of 

the record before us. Our decision 

considered the non-inclusion of the Bay 

checkerspot butterfly as a covered 

species under the current HCP, and the 

inadequacy of existing funding 

mechanisms to implement specific 

conservation measures to conserve and 

protect the features essential to the 

conservation of the Bay checkerspot 

butterfly. (See ‘‘Application of Section 

4(b)(2) of the Act’’). Stanford University 

is developing an HCP for lands owned 

by Stanford University that includes the 

Jasper Ridge Biological Preserve (Unit 

3); however, as currently proposed, this 

HCP would not include the Bay 

checkerspot butterfly or any other 

butterfly species, so lands covered by 

this HCP are not being excluded. Santa 

Clara County is currently developing a 

regional HCP that would encompass the 

majority of Santa Clara County, 

including all critical habitat units in the 

county (Units 4 through 13). This HCP 

is in the early stages of development, 

and as proposed would include the Bay 

checkerspot butterfly. However, the 

Santa Clara County HCP is not expected 

to be finalized until summer of 2010; 

therefore, we are not excluding lands 

that may be covered by this HCP. 

Revised Critical Habitat Designation 

We are designating 13 units as critical 

habitat for the Bay checkerspot 

butterfly. These units, which generally 

correspond to those units in the 2007 

proposed revised designation, when 

finalized, would entirely replace the 

current critical habitat designation for 

the Bay checkerspot butterfly at 50 CFR 

17.95(i). 

Table 1 and 2 shows the occupancy of 

each final revised critical habitat unit 

and the approximate area encompassed 

within each final revised critical habitat 

unit with land ownership. 

TABLE 1. OCCUPANCY OF REVISED CRITICAL HABITAT UNITS FOR THE BAY CHECKERSPOT BUTTERFLY. 

Unit Occupied at time of listing Currently occupied Acres (Hectares) 

Unit 1: San Bruno Mountain Yes No 775 (314) 

Unit 2: Pulgas Ridge Yes No 179 (72) 

Unit 3: Edgewood Park Yes Yes 409 (166) 

Unit 4: Jasper Ridge Yes No 329 (133) 

Unit 5: Metcalf Yes Yes 4,503 (1,822) 

Unit 6: Tulare Hill Yes Yes 348 (141) 

Unit 7: Santa Teresa Hills Yes Yes 3,278 (1,327) 

Unit 8: Calero Reservoir Yes Yes 1,543 (624) 

Unit 9: Kalana Hills 

Subunit 9A 

Subunit 9B 

Yes 

Yes 

Yes 

Yes 

170 (69) 

56 (23) 

Unit 10: Hale Yes Yes 507 (205) 

Unit 11: Bear Ranch No Yes 283 (114) 

Unit 12: San Martin Yes Yes 467 (189) 

Unit 13: Kirby Yes Yes 5,446 (2,204) 

Total 18,293 (7,403) 


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TABLE 2. REVISED CRITICAL HABITAT UNITS FOR THE BAY CHECKERSPOT BUTTERFLY.[AREA ESTIMATES REFLECT ALL LAND

WITHIN CRITICAL HABITAT UNIT BOUNDARIES IN ACRES (HECTARES).] 

Unit Federal State or Local Private Total Area Designated 

Unit 1: San Bruno Mt. 0 577 (234) 198 (80) 775 (314) 

Unit 2: Pulgas Ridge 0 179 (72) 0 179 (72) 

Unit 3: Edgewood Park 0 309 (165) 0 409 (166) 

Unit 4: Jasper Ridge 0 0 329 (133) 329 (133) 

Unit 5: Metcalf 0 123 (50) 4,380 (1,772) 4,503 (1,822) 

Unit 6: Tulare Hill 0 14 (6) 334 (135) 348 (141) 

Unit 7: Santa Teresa Hills 0 425 (172) 2,853 (1,155) 3,278 (1,327) 

Unit 8: Calero Reservoir 0 1,543 (624) 0 1,543 (624) 

Unit 9: Kalana Hills 

Subunit 9A 

Subunit 9B 

0 

0 

0 

0 

170 (69) 

56 (23) 

170 (69) 

56 (23) 

Unit 10: Hale 0 0 507 (205) 507 (205) 

Unit 11: Bear Ranch 0 283 (114) 0 283 (114) 

Unit 12: San Martin 0 0 467 (189) 467 (189) 

Unit 13: Kirby 0 90 (37) 5,356 (2,167) 5,446 (2,204) 

Total 0 3,643 (1,475) 14,650 (5,928) 18,293 (7,403) 

We present brief descriptions of all 

units, and reasons why they meet the 

definition of critical habitat for the Bay 

checkerspot butterfly, below. 

Unit 1: San Bruno Mountain 

Unit 1 consists of 775 ac (314 ha) in 

San Mateo County. The unit is primarily 

within San Bruno Mountain State and 

County Park, and is entirely within the 

boundaries of the San Bruno Mountain 

Area Habitat Conservation Plan. This 

unit was occupied at the time of listing 

and contains all the features essential 

for the conservation of the subspecies; 

however, the Bay checkerspot butterfly 

has not been observed in this unit since 

a wildfire in 1986 and is currently 

unoccupied. Unit 1 represents the most 

northerly part of the subspecies’ range 

on the San Francisco peninsula. Unit 1 

is necessary as a supporting element of 

the San Mateo metapopulation because 

it represents the largest area of 

contiguous native grassland habitat that 

can support the Bay checkerspot 

butterfly’s host and nectar plants within 

San Mateo County. This unit currently 

supports populations of the federally 

endangered Callippe silverspot butterfly 

(Speyeria callippe callippe), endangered 

San Bruno elfin butterfly (Callophrys 

mossii bayensis), and endangered 

Mission blue butterfly (Icaricia 

icarioides missionensis), which share 

some of the habitat requirements as the 

Bay checkerspot butterfly (such as 

native grasslands). The majority of this 

unit, approximately 577 ac (234 ha), is 

within the boundaries of the San Bruno 

Mountain State and County Park, while 

the rest of the unit is privately owned 

(198 ac (80 ha)). The distance between 

Unit 1 and the most proximate unit, 

Unit 2, is greater than the published 

dispersal distance of the Bay 

checkerspot butterfly; however, 

numerous small patches of intervening 

grasslands may serve as additional 

stepping stones to potentially allow for 

movement between these two units. 

These patches of grassland habitat are 

not designated as critical habitat 

because the Service has no information 

regarding the presence of sufficient 

PCEs within these areas. 

Unit 2: Pulgas Ridge 

Unit 2 consists of 179 ac (72 ha) in 

San Mateo County. The unit is located 

north of the intersection of Interstate 

280 and Highway 92, east of Crystal 

Springs Reservoir. This unit was 

occupied at the time of listing and 

contains all the features essential for the 

conservation of the subspecies. Since 

listing, Bay checkerspot butterflies in 

this unit have been extirpated, and the 

unit is currently unoccupied. However, 

the Bay checkerspot butterfly formerly 

inhabited this unit, and the unit still 

contains all the PCEs. The land within 

this unit is owned by San Francisco 

Public Utilities Commission (SFPUC) 

and is part of the Peninsula watershed 

and not subject to development. This 

unit provides habitat for the subspecies, 

especially in years with particularly 

favorable weather conditions that 

support expanding populations of Bay 

checkerspot butterflies; represents a 

stepping stone location to nearby units; 

and secures the metapopulation 

dynamics of the subspecies by 

providing adjacent or dispersal habitat 

for the subspecies. According to the 

Peninsula watershed management plan 

(SFPUC 2002, pp. 2-11), portions of the 

watershed currently support 

populations of the endangered San 

Bruno elfin butterfly and the 

endangered Mission blue butterfly that 

share similar habitat requirements as the 

Bay checkerspot butterfly (including 

native grasslands). In addition, 

according to the environmental impact 

statement for the Peninsula watershed 

management plan (SFPD 2001, p. XLB7), portions of the watershed have a 

high probability of supporting the Bay 

checkerspot butterfly and are designated 

as serpentine grassland habitat. 

Unit 3: Edgewood Park 

Unit 3 consists of 409 ac (166 ha) in 

San Mateo County. This unit is 

comprised primarily of the Edgewood 

Park and Natural Preserve, a San Mateo 


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County park located east of the junction 

of Edgewood Road and Interstate 280. A 

portion of the unit, approximately 141 

ac (57 ha), is owned by the San 

Francisco Public Utilities Commission 

and is part of the Peninsula watershed. 

This unit was occupied at the time of 

listing, is currently occupied, and 

contains all the features essential to the 

conservation of the subspecies. Until 

recently, this unit supported the main 

population of Bay checkerspot 

butterflies within the San Mateo 

metapopulation. However, the 

subspecies was last observed here in 

2002, after a steady decline beginning in 

the late 1990s. Larval Bay checkerspot 

butterflies were reintroduced to this 

unit in early 2007. The population of 

Bay checkerspot butterflies within this 

unit has been described as the only core 

population in San Mateo County, and 

without Bay checkerspot butterflies in 

this unit, the subspecies in San Mateo 

County is unlikely to persist, which 

would leave only the one 

metapopulation in Santa Clara County 

and the loss of Unit 3 would constitute 

a significant range reduction for the 

subspecies. 

Unit 4: Jasper Ridge 

Unit 4 consists of 329 ac (133 ha) in 

San Mateo County. The unit is entirely 

contained within Stanford University’s 

Jasper Ridge Biological Preserve. The 

unit is 4 mi (7 km) southeast of Unit 3 

and 23 mi (37 km) west-northwest of 

Unit 5, and represents the closest 

connection to the Santa Clara County 

metapopulation. This unit was occupied 

at the time of listing and contains all the 

features essential to the conservation of 

the subspecies. Dozens of published 

scientific papers about the Jasper Ridge 

population of the Bay checkerspot 

butterfly exist. The population was 

almost extirpated by prolonged drought 

in the late 1970s and again in the late 

1980s. The unit was occupied at the 

time of listing; however the last known 

observation of the Bay checkerspot 

butterfly in this unit was in 1997. The 

unit is currently unoccupied. The unit 

is managed as a biological preserve by 

Stanford University, and suitable 

habitat, containing all the PCEs, 

continues to be present. Unit 4 is the 

closest unit in San Mateo County to 

populations of the Bay checkerspot 

butterfly in Santa Clara County. While 

currently not known to be occupied, 

metapopulation dynamics may allow for 

natural recolonization to occur by Bay 

checkerspot butterflies from the 

Edgewood Park Unit (Unit 3). The Jasper 

Ridge Unit is the closest suitable habitat 

with sufficient PCEs to the recently 

reintroduced Edgewood Park population 

and is necessary to support and 

maintain the Edgewood Park 

population, which in turn supports the 

metapopulation dynamics of the Bay 

checkerspot butterfly in San Mateo 

County. 

Unit 5: Metcalf 

Unit 5 consists of 4,503 ac (1,822 ha) 

in Santa Clara County. The unit 

encompasses Units 10, 11, and 12 as 

identified in the 2001 designation and is 

the northern half of Unit 5 as identified 

in the 2007 proposed revised 

designation. The unit comprises the 

northern half of the ridgeline currently 

referred to as Coyote Ridge (although in 

the past has been referenced as Morgan 

Hill, Kirby Canyon, and the East Hills), 

the majority of which is in private 

ownership, although approximately 110 

ac (45 ha) are owned by Santa Clara 

County Parks for off-road vehicle 

recreation. To the north the unit is 

bordered by Yerba Buena Road near its 

intersection with U.S. Highway 101 and 

Metcalf Road to the south. The unit was 

occupied at the time of listing, contains 

all the features essential to the 

conservation of the subspecies, and 

represents the northern portion of the 

only remaining core population of the 

Bay checkerspot butterfly. Other units 

in Santa Clara County depend on the 

core population as a source for 

recolonization. The unit represents the 

second largest, most contiguous, and 

highest quality habitat containing the 

second largest population of Bay 

checkerspot butterflies. 

Researchers historically referred to 

the Bay checkerspot butterflies within 

this unit as three populations, Metcalf, 

San Felipe, and Silver Creek Hills, and 

our 2001 designation identified them as 

separate units. However, according to 

Launer (2008, p. 4), there are likely 

multiple subpopulations or populations 

within each of the historically studied 

populations, and the four names only 

represent the centers of historic study 

areas. The Metcalf population supported 

an estimated 400,000 individuals in 

2004, but has suffered a significant 

decline down to an estimated 45,000 

individuals in 2006 (Weiss 2006, p. 1). 

The Metcalf population is within the 

limits of the City of San Jose and is 

located on private land. The San Felipe 

population is also located on private 

lands and within the limits of the City 

of San Jose. The Service is unaware of 

any recent surveys of the San Felipe 

population; however, the population 

was estimated at 100,000 individuals in 

1999 (Weiss 2006, p. 1). The Silver 

Creek Hills population is the last of the 

three populations within this unit. The 

population was considered relatively 

large, with approximately 115,000 

individuals in 1993 (Weiss 2006, p. 1). 

This population was significantly 

affected by the development of a 

residential area and associated golf 

course (Ranch on Silver Creek) in the 

late 1990s. As a result of formal 

consultation on the Ranch on Silver 

Creek, approximately 473 ac (191 ha) 

owned by William Lyon Homes were 

preserved under a conservation 

easement and are being managed for the 

Bay checkerspot butterfly. 

Approximately 40 adults were observed 

at the Silver Creek Preserve in 2006 

(WRA 2006, p. i). 

Unit 6: Tulare Hill 

Unit 6 consists of 348 ac (141 ha) in 

Santa Clara County. The unit is located 

in the middle of the Santa Clara Valley, 

south of San Jose, and west of the 

crossing of Metcalf Road and Monterey 

Highway. The unit was occupied by the 

Bay checkerspot butterfly at the time of 

listing and is noted as one of the 

locations occupied in Harrison et al. 

(1988, p. 362). The unit is currently 

occupied, contains all the features 

essential to the conservation of the 

subspecies, and is essential to the 

conservation of the subspecies because 

it acts as a population center and 

because it provides a dispersal corridor 

across Coyote Valley. This unit is the 

closest suitable intervening habitat 

between the Coyote Ridge core 

population and most of the other 

populations in Santa Clara County, 

primarily those on the western side of 

Coyote Valley. Hundreds of butterflies 

have been observed on the southern half 

of the unit from 2001-2006 (Weiss 2006, 

p. 1). The highest numbers of 

individuals were 2,000 to 3,000 post 

diapause larvae in 2002, but the 

population has declined significantly, 

and that decline is believed to be due to 

lack of grazing over much of the unit 

(CH2M Hill 2008, p. 8-8). We have 

determined that the long-term viability 

of the Bay checkerspot butterfly in Santa 

Clara County depends on the presence 

of corridors for dispersal of adults 

between Coyote Ridge and the other 

units in Santa Clara County. Tulare Hill 

is an ideal location for such a corridor 

because of the narrowness of the valley 

at this location, the limited amount of 

development currently present, the 

presence of high elevations on the hill 

that may attract butterflies over the 

highways and developed areas, and the 

presence of suitable habitat on Tulare 

Hill itself. Migrant butterflies from 

either Santa Teresa Hills or Coyote 

Ridge may settle on Tulare Hill, 

contributing individuals to the 

population within this unit, and adults 


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from Tulare Hill may migrate to the 

adjacent habitat areas. Locally owned 

lands within this unit include parts of 

Coyote Creek Park, Metcalf Park, and 

Santa Teresa County Park totaling 

approximately 14 ac (5 ha). Roughly half 

of Tulare Hill itself is within the limits 

of the City of San Jose; the remainder is 

on private lands in unincorporated 

Santa Clara County. Approximately 114 

ac (46 ha) of the unit is currently 

protected under a conservation 

easement and is managed for the Bay 

checkerspot butterfly by the Land Trust 

for Santa Clara County. The unit is 

bisected by transmission lines from 

Pacific Gas & Electric (PG&E), and the 

operations and maintenance of these 

lines are the subject of a Safe Harbor 

Agreement and Habitat Conservation 

Agreement for the Bay checkerspot 

butterfly. 

Unit 7: Santa Teresa Hills 

Unit 7 consists of 3,278 ac (1,327 ha) 

in Santa Clara County. The unit lies 

north of Bailey Avenue, McKean Road, 

and Almaden Road; south of developed 

areas of the city of Santa Clara; and west 

of Santa Teresa Boulevard. The unit 

abuts Unit 6. This unit was occupied at 

the time of listing, although that was not 

specifically mentioned in the listing 

rule. An unspecified number of Bay 

checkerspot butterflies were observed in 

this unit in 1988 (CNDDB 2006, p. 26). 

The unit is currently occupied (Arnold 

2007, p. 1; H.T Harvey and Associates 

1998, p. 11), and contains the physical 

and biological features essential to the 

conservation of the subspecies. Further, 

it includes the largest block of 

undeveloped habitat containing all the 

PCEs west of U.S. Route 101 in Santa 

Clara County. In addition, due to the 

prevailing winds, Unit 7 may 

experience less air pollution (i.e., 

nitrogen and ammonia deposition) than 

the units on the east side of Coyote 

Valley. Approximately 425 ac (172 ha) 

within the unit is owned by Santa Clara 

County Department of Parks and 

Recreation with the remainder of the 

unit consisting of private land. 

Unit 8: Calero Reservoir 

Unit 8 consists of 1,543 ac (624 ha) in 

Santa Clara County. The unit is south of 

McKean Road and east of the town of 

New Almaden, Almaden Road, and 

Alamitos Creek. This unit was occupied 

at the time of listing (CNDDB 2006, p. 

26), is currently occupied, and contains 

all the features essential for the 

conservation of the subspecies. The unit 

is less than 0.5 mi (0.8 km) south of Unit 

7 and 1 mi (1.6 km) east of Unit 9. It 

is also 3.3 mi (5.3 km) southwest of the 

core population in Unit 5, and this 

distance is well within the dispersal 

capabilities of the subspecies; therefore, 

Unit 8 is an important component of the 

species’ Santa Clara County 

metapopulation. The unit is comprised 

of over 1,400 ac (567 ha) of mapped 

serpentine soils on public land. The 

majority of the unit is within the Calero 

County Park and managed by Santa 

Clara County Department of Parks and 

Recreation. The remainder is owned and 

managed by the Santa Clara Valley 

Water District. 

Unit 9: Kalana Hills 

Unit 9 consists of two separate 

subunits: Subunit 9A (170 ac (69 ha)) 

and Subunit 9B (56 ac (22 ha)), totaling 

226 ac (91 ha) in Santa Clara County. 

The two subunits are located on the 

southwest side of the Santa Clara Valley 

between Laguna Avenue and San Bruno 

Avenue and are entirely on private land. 

Both subunit 9A and 9B were occupied 

by the Bay checkerspot butterfly at the 

time of listing and are noted as one of 

the locations occupied in Harrison et al. 

(1988, p. 362). Adults were again 

observed during the last survey of the 

unit in 1997 (CNDDB 2006, p. 23). The 

two subunits include four hilltop 

serpentine outcrops, which contain all 

the features essential for the 

conservation of the species, and some 

intervening grassland. The intervening 

grassland does not contain the larval 

host plants or serpentine or similar 

soils, but does contain PCEs 1, 3, and 4 

and connects the four serpentine 

outcrops. Unit 5 lies about 2.1 mi (3.2 

km) to the northeast, Unit 7 is 1 mi (1.6 

km) to the northwest, Unit 8 is 1 mi (1.6 

km) to the west, and Unit 10 about 2.2 

mi (3.5 km) to the southeast. The 

essential physical and biological 

features in Unit 9 assist in maintaining 

the metapopulation dynamics of the 

subspecies by providing habitat for the 

subspecies within dispersal distance of 

adjacent or nearby critical habitat units. 

Because of its proximity to several other 

large population centers for the Bay 

checkerspot butterfly, we expect the 

Kalana Hills subunits to be regularly 

occupied by the subspecies and assist in 

maintaining the metapopulation 

dynamics for the subspecies. If, as is 

possible given the Bay checkerspot 

butterfly’s large population swings, the 

butterfly’s population in these subunits 

were to become extirpated, the subunits 

are likely to be repopulated by Bay 

checkerspot butterflies immigrating 

from adjacent sites. These subunits act 

as a ‘‘stepping stone’’ to adjacent or 

nearby units. A portion of the largest 

and northernmost serpentine outcrop 

within subunit 9A is within the limits 

of the City of San Jose; the remainder of 

the subunit is in unincorporated Santa 

Clara County. Subunit 9A’s northeast 

boundaries are bordered by the 

proposed Coyote Valley Specific Plan. 

Unit 10: Hale 

Unit 10 consists of 507 ac (205 ha) in 

Santa Clara County. The unit is 

northwest of the City of Morgan Hill, 

east of Willow Springs Road, and south 

of Hale Avenue. The unit name ‘‘Hale’’

was changed from ‘‘Morgan Hill’’ in our 

2007 proposed revised designation 

based on comments from peer reviews. 

This unit was occupied in the late 1980s 

and is described in the CNDDB as an 

‘‘active site’’ (CNDDB 2006) for the 

subspecies. The unit was occupied at 

the time of listing and is noted as one 

of the locations occupied in Harrison et 

al. (1988, p. 362). Adult butterflies were 

observed in the unit in 1997 (CNDDB 

2006). Unit 10 is essential to the 

conservation of the subspecies because 

it has large areas of serpentine soils and 

grassland with a variety of slope 

exposures, contains all the PCEs, and 

serves as a ‘‘stepping stone’’ between 

the southernmost occurrences of the 

subspecies (Unit 12) and the 

populations to the north. The unit is 1.5 

mi (2.4 km) southwest of Unit 5 and 2.2 

mi (3.5 km) southeast of Unit 9, 

provides dispersal habitat from adjacent 

critical habitat units, and provides 

habitat during years with particularly 

favorable weather conditions that 

support expanding populations of the 

Bay checkerspot butterfly. This unit is 

comprised mostly of private property, a 

portion of which is within the limits of 

the City of Morgan Hill and the rest in 

unincorporated Santa Clara County. 

Unit 11: Bear Ranch 

Unit 11 consists of 283 ac (114 ha) in 

Santa Clara County. The unit is adjacent 

to Coyote Reservoir and is entirely 

contained within the Coyote Lake–

Harvey Bear Ranch County Park. The 

Bay checkerspot butterfly was known to 

occur within this unit in the mid-1970s, 

but was considered extirpated in the 

listing rule; however, Bay checkerspot 

butterflies were observed in this unit in 

1994, 1997, and 1999 (CNDDB 2006, p. 

15; Launer 2000, p. 1). This unit is 

currently occupied and is the most 

southern occurrence of the Bay 

checkerspot butterfly on the east side of 

Coyote Valley. Although we are unable 

to determine from the available data that 

Unit 11 was occupied by the species at 

the time of listing, we have determined 

that this area is essential for the 

conservation of the subspecies because 

it assists in maintaining the 

metapopulation dynamics of the 

subspecies by providing adjacent or 


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nearby habitat for Bay checkerspot 

butterflies to disperse to or to use as 

foraging or resting habitat during longer 

dispersal events. The unit contains all 

the features essential for the 

conservation of the species. This unit is 

underlined by both serpentine and 

serpentine-like soils. There are two 

patches of serpentine soils separated 

north–south by intermittent woody 

vegetation; these patches are 

surrounded by grasslands underlined by 

serpentine-like soils that provide 

adequate dispersal corridors between 

the two patches. 

Unit 12: San Martin 

Unit 12 consists of 467 ac (189 ha) in 

Santa Clara County. The unit is located 

in the western foothills of the Santa 

Clara Valley. This unit was occupied at 

the time of listing, is currently 

occupied, and contains all the features 

essential for the conservation of the 

subspecies. The unit has extensive areas 

of serpentine soils interspersed with 

grasslands that have PCEs 1, 3, 4, and 

5. These areas are important for 

dispersal between higher quality 

habitats within the unit that contain all 

the necessary features essential for 

conservation of the subspecies. The unit 

lies entirely on private lands in 

unincorporated Santa Clara County, 

about 4 mi (6.4 km) west-southwest of 

Unit 11, 4 mi (6.4 km) southeast of Unit 

10, and 6 mi (9.6 km) south of Unit 5’s 

core area. This unit is the southernmost 

occurrence of the Bay checkerspot 

butterfly. The adjacent Cordevalle Golf 

Club has purchased approximately 298 

ac (121 ha) of property within the unit, 

has developed a management plan for 

the property, and is currently working 

to establish a conservation easement for 

preservation as open space. A portion of 

the proposed open space, approximately 

42.3 ac (17.1 ha), will be managed to 

benefit serpentine species including the 

Bay checkerspot butterfly. The 

remainder of the unit is privately 

owned. 

Unit 13: Kirby 

Unit 13 consists of 5,446 ac (2,204 ha) 

in Santa Clara County. The unit 

encompasses Unit 8 identified in the 

2001 designation and is the southern 

half of Unit 5 as identified in the 2007 

revised proposed rule. The unit 

comprises the southern half of the 

ridgeline currently referred to as Coyote 

Ridge (but as noted above has been 

referred to by a variety of names in the 

past), the majority of which is in private 

ownership. To the north the unit is 

bordered by Metcalf Road, to the 

southwest by U.S. Highway 101, and 

Metcalf Road to the south. The unit was 

occupied at the time of listing, contains 

all the features essential to the 

conservation of the subspecies, and 

represents the southern portion of the 

only remaining core population of the 

Bay checkerspot butterfly (Unit 5 

contains the northern portion of the core 

population). Other units in Santa Clara 

County depend on the core population 

as a source for recolonization. The unit 

represents the largest, most contiguous, 

and highest quality habitat containing 

the largest population of Bay 

checkerspot butterflies. 

The Kirby population is the 

southernmost of the four historically 

studied populations and has 

consistently had the largest numbers of 

Bay checkerspot butterflies. The Kirby 

area had an estimated 700,000 

individuals in 2004, 100,000 

individuals in 2005 (Weiss 2006, p. 1), 

and 40,000 in 2007 (CH2M Hill p. 8-8). 

Although still under private ownership, 

approximately 291 ac (118 ha) of the 

Kirby area is under some form of 

protection or management for special 

status species, including the Bay 

checkerspot butterfly. In addition, a 

250-ac (101-ha) butterfly preserve is 

being managed by Waste Management 

Incorporated (WMI) as compensation for 

adverse effects to the Bay checkerspot 

butterfly in association with its landfill. 

However, the protection afforded the 

butterfly preserve is not permanent, and 

the land the preserve is on is not owned 

by WMI. Approximately 90 ac (37 ha) is 

owned by the Santa Clara Department of 

Parks and Recreation. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify designated critical habitat. 

Decisions by the Fifth and Ninth Circuit 

Courts of Appeals have invalidated our 

definition of ‘‘destruction or adverse 

modification’’ (50 CFR 402.02) (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir 2001)), and we do not 

rely on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the PCEs 

to be functionally established) to serve 

its intended conservation role for the 

species. 

Under section 7(a)(2) of the Act, if a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that are likely to adversely affect 

listed species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘reasonable and prudent 

alternatives’’ at 50 CFR 402.02 as 

alternative actions identified during 

consultation that: 

(1) Can be implemented in a manner 

consistent with the intended purpose of 

the action, 

(2) Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

(3) Are economically and 

technologically feasible, and 

(4) Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

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 we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 


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subsequently listed species or 

designated critical habitat. 

Federal activities that may affect the 

Bay checkerspot butterfly or its 

designated critical habitat will require 

section 7(a)(2) consultation under the 

Act. Activities on State, Tribal, local, or 

private lands requiring a Federal permit 

(such as a permit from the U.S. Army 

Corps of Engineers under section 404 of 

the Clean Water Act (33 U.S.C. 1251 et 

seq.) or a permit from us under section 

10(a)(1)(B) of the Act) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

examples of agency actions that may be 

subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local or private lands that are not 

federally funded, authorized, or carried 

out, do not require section 7(a)(2) 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that alter the physical and 

biological features to an extent that 

appreciably reduces the conservation 

value of critical habitat for the Bay 

checkerspot butterfly. 

Section 4(b)(8) of the Act requires us 

to evaluate and describe in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for the Bay checkerspot butterfly 

include, but are not limited to: 

(1) Actions that would cause ground 

disturbance, including, but not limited 

to, trenching, grading, and discing. 

Ground disturbance would likely result 

in the loss of larval and adult food 

plants and in an increased mortality of 

larvae as a result of starvation. 

Individual Bay checkerspot butterfly 

larvae, pupae, and eggs could be 

crushed during any of these activities. A 

reduction in adult nectar sources could 

result in reduced fecundity and 

longevity of females, and possibly 

reduced longevity of males. Ground 

disturbance may also result in a 

reduction in the number of stable holes 

and cracks that larvae use during 

diapause, which would result in an 

increased risk of predation. 

(2) Actions that would remove, 

destroy, or alter vegetation, including, 

but not limited to, changes in grazing 

regimes (such as increase or decrease in 

livestock density, changes in frequency 

or timing of grazing, or removal of all 

grazing), prescribed burns (generally 

limited to short-term effects), or other 

vegetation management strategies that 

reduce densities of the larval and adult 

host plants. These actions would have 

similar effects as those associated with 

ground disturbance, such as loss of 

larval and adult food plants. Prescribed 

burns may also result in direct injury or 

mortality to larvae, pupae, and eggs if 

conducted during the fall or early 

spring. Grazing is likely to result in 

some individual larvae, eggs, and pupae 

being trampled or inadvertently eaten. 

(3) Construction activities that 

destroy, degrade, or fragment critical 

habitat, such as urban and suburban 

development (e.g., subdivisions, road 

building, placement of utilities, golf 

courses, trail construction, off-road 

vehicle use). These activities could 

result in the permanent loss of habitat 

or create barriers to movement between 

patches of habitat. Construction 

activities could result in crushing of 

both larval and adult food plants as well 

as larvae, pupae, and eggs. Adults may 

be injured or killed as a result of 

collisions with vehicles. In addition, 

larvae crossing open areas of 

construction sites in search of edible 

host plants could be trampled. Urban 

development could also cause changes 

in hydrology of Bay checkerspot 

butterfly habitat. The presence of 

unseasonal water could result in an 

alteration in the life cycle of larval and 

adult food plants, such that plant 

growth and blooming are out of phase 

with the life cycle of the subspecies, 

resulting in increased mortality of both 

larvae and adults. Artificially wet 

conditions may also result in an 

increase in parasites or diseases that 

could reduce larval and adult survival. 

In addition, changes in hydrology that 

result in reduced water levels in nearby 

creeks could result in increased 

mortality of adults during periods of 

prolonged spring drought. Activities 

that result in direct loss of habitat 

would also result in direct loss of 

individuals of all life stages of the Bay 

checkerspot butterfly. Loss of habitat 

patches that are ‘‘stepping stone’’

habitats would result in increased 

distances between other patches of 

suitable habitat and reduce the 

likelihood of distant patches being 

colonized, thus disrupting the 

metapopulation dynamics of the 

subspecies and resulting in a decrease 

in the stability of core populations and 

possible extinction of the Bay 

checkerspot butterfly. 

(4) Direct application on, or drift onto, 

critical habitat of pesticides, herbicides, 

fertilizers, or other chemicals or 

biological agents. Drift or runoff of 

chemicals, pesticides, and other 

biological agents could kill or injure Bay 

checkerspot butterflies through direct 

toxicity or by harming their food plants. 

(5) Deposition or release onto critical 

habitat of nitrogen compounds, such as 

NOx and ammonia. Nitrogen deposition 

(i.e., NOx and ammonia) in and around 

Bay checkerspot butterfly habitat would 

result in nutrient enrichment of 

serpentine and serpentine-like soils. 

This enrichment allows for the 

successful invasion of exotic and 

invasive plants, which out-compete 

nativeforbs and grasses, into serpentine 

grasslands, resulting in lower densities 

of larval and adult food plants. Lower 

densities of both larval and adult food 

plants would result in fewer larval and 

adult Bay checkerspot butterflies. 

We have determined that all of the 

units designated contain features 

essential to the conservation of the Bay 

checkerspot butterfly. All units are 

within the geographic range of the 

species, all were occupied by the 

species at the time of listing or are 

currently occupied (based on most 

recent observations made), and all are 

likely or have the potential to be used 

by the Bay checkerspot butterfly. 

Federal agencies already consult with us 

on activities in areas currently occupied 

by the Bay checkerspot butterfly, as well 

as unoccupied critical habitat units, to 

ensure that their actions, which may 

affect the species or its designated 

critical habitat, are not likely to 

jeopardize the continued existence of 

the Bay checkerspot butterfly or result 

in adverse modification of critical 

habitat. 

Economic Analysis 

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

to designate critical habitat on the basis 

of the best scientific information 

available and to consider economic, 

national security and other relevant 

impacts of designating a particular area 

as critical habitat. Section 4(b)(2) of the 

Act allows the Secretary to exclude 

areas from critical habitat if the 

Secretary determines that the benefits of 

such exclusion exceed the benefits of 

designating the area as critical habitat. 


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However, this exclusion cannot occur 

unless the Secretary determines that it 

will not result in the extinction of the 

species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. On April 15, 2008, we 

published a notice of availability (73 FR 

20237), the draft analysis (dated March 

12, 2008), and we accepted public 

comments on the draft document from 

April 15, 2008 to May 15, 2008. We 

received two public comments related 

to the draft economic analysis. A final 

analysis of the potential economic 

effects of the designation was developed 

(Berkeley Economic Consulting 2008), 

taking into consideration any relevant 

new information. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of revised critical habitat for 

the Bay checkerspot butterfly. This 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the subspecies. 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. 

The economic analysis quantifies 

impacts associated with the 

conservation of Bay checkerspot 

butterfly including future urban 

development, management of invasive 

plants, pesticide use, and overgrazing or 

undergrazing. These activities were 

identified as factors that may require 

special management (72 FR 48183- 

48184). Pre-designation (1987 to 2007) 

impacts associated with species 

conservation activities in areas 

designated as critical habitat are 

estimated at approximately $9 million 

in 2007 dollars. The final EA forecasts 

baseline economic impacts in the areas 

designated to be approximately $390 

million ($24 million annualized) (2008 

dollars) applying a 3 percent discount 

rate over the next 22 years and $270 

million ($24 million annualized) (2008 

dollars) applying a 7 percent discount 

rate over the next 22 years. The final EA 

forecasts incremental economic impacts 

to be approximately $0 to $750,000 ($0 

to $44,000 annualized) (2008 dollars) 

applying a 3 percent discount rate over 

the next 22 years. The cost estimates are 

based on the proposed revised 

designation of critical habitat published 

in the Federal Register on August 22, 

2007 (72 FR 48178). 

The final EA considers the potential 

economic effects of actions relating to 

the conservation of the Bay checkerspot 

butterfly, including costs associated 

with sections 4, 7, and 10 of the Act, as 

well as costs attributable to the 

designation of revised critical habitat. It 

further considers the economic effects of 

protective measures taken as a result of 

other Federal, State, and local laws that 

aid habitat conservation for the Bay 

checkerspot butterfly in areas 

containing features essential to the 

conservation of the species. The final 

EA considers both economic efficiency 

and distributional effects. In the case of 

habitat conservation, efficiency effects 

generally reflect the ‘‘opportunity costs’’

associated with the commitment of 

resources to comply with habitat 

protection measures (such as lost 

economic opportunities associated with 

restrictions on land use). 

The final EA also addresses how 

potential economic impacts are likely to 

be distributed, including an assessment 

of any local or regional impacts of 

habitat conservation and the potential 

effects of conservation activities on 

government agencies, private 

businesses, and individuals. The final 

EA measures lost economic efficiency 

associated with residential and 

commercial development and public 

projects and activities, such as 

economic impacts on water 

management and transportation 

projects, Federal lands, small entities, 

and the energy industry. Decisionmakers can use this information to 

assess whether the effects of the revised 

designation might unduly burden a 

particular group or economic sector. 

Finally, the final EA looks 

retrospectively at costs that have been 

incurred since the date we listed the 

Bay checkerspot butterfly as endangered 

(52 FR 35366, September 18, 1987) and 

considers those costs that may occur in 

the 22 years following the designation of 

critical habitat. Because the final EA 

considers the potential economic effects 

of all actions relating to the 

conservation of the Bay checkerspot 

butterfly, including costs associated 

with sections 4, 7, and 10 of the Act and 

those attributable to a revised 

designation of critical habitat, the final 

EA may have overestimated the 

potential economic impacts of the 

revised critical habitat designation. 

The final economic analysis is 

available at http://www.regulations.gov 

and http://www.fws.gov/sacramento or 

upon request from the Sacramento Fish 

and Wildlife Office (see ADDRESSES

section). 

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

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108- 

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 

designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan 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.’’

There are no Department of Defense 

lands with a completed integrated 

natural resources management plan 

within this final revised critical habitat 

designation. 

Application of Section 4(b)(2) of the Act 

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

the Secretary must designate or revise 

critical habitat 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. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we have considered. 

Under section 4(b)(2) of the Act, in 

considering whether to exclude a 

particular area from the designation, we 

must identify the benefits of including 

the area in the designation, identify the 

benefits of excluding the area from the 

designation, and determine whether the 

benefits of exclusion outweigh the 

benefits of inclusion. Before we may 

exclude an area, we must determine that 


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the exclusion would not result in the 

extinction of the species. 

Portions of Units 5, 6, 12, and 13 are 

currently protected or proposed for 

protection. Not all areas protected are 

under conservation easements, some are 

protected through other means such as 

fee title, deed restrictions, etc. (see unit 

descriptions above for acreages). Some 

easements were established for the 

protection of the California red-legged 

frog (Rana aurora draytonii) or the 

California tiger salamander (Ambystoma 

californiense), while others were 

established for the Bay checkerspot 

butterfly. These areas were considered 

for exclusion, but were not excluded 

from this final revised designation of 

critical habitat because some of them do 

not have management plans and some 

only provide management plans for the 

tiger salamander or the California redlegged frog. Those areas with 

conservation easements that specifically 

provide protection for the Bay 

checkerspot butterfly were not 

considered for exclusion because the 

easements are not believed to be 

sufficiently funded to adequately deal 

with nonnative invasive plants, such as 

the recent invasion of barbed goat grass 

(Aegilops triuncialis). A conservation 

easement that has been proposed for a 

portion of Unit 12 has not been finalized 

and has also not been excluded in this 

final rule. 

San Bruno Mountain Habitat 

Conservation Plan (SBMHCP) 

After consideration under section 

4(b)(2) of the Act, we are not excluding 

lands covered under the SBMHCP. The 

SBMHCP was originally completed in 

November 1982, and we issued a 30–

year section 10(a)(1)(B) permit to the 

permittees on March 4, 1983. The 

permit (PRT 2-9818) expires on March 

4, 2013, unless it is renewed (Jones and 

Stokes 2007, pp. 1-2). San Bruno 

Mountain is located on the northern end 

of the San Francisco Peninsula, south of 

the San Mateo–San Francisco County 

line, and is bordered to the north by 

Daly City, to the east by the City of 

Brisbane, to the south by the City of 

South San Francisco, and to the west by 

the City of Colma. The SBMHCP is 

comprised of 3,600 ac (1,457 ha), of 

which approximately 3,500 ac (1,416 

ha) are open space. To date, there have 

been four amendments to the SBMHCP. 

A notice of availability for a draft of 

amendment five was published in the 

Federal Register on April 15, 2008 (73 

FR 20324). The draft of amendment five 

to the SBMHCP includes proposed and 

ongoing conservation actions designed 

to benefit both the Bay checkerspot 

butterfly and Callippe silverspot 

butterfly. Conservation actions include: 

(1) Vegetation management (prescribed 

fire, mowing, and grazing); (2) 

replanting and restoration; (3) 

monitoring; and (4) approximately $ 4 

million in an endowment for ongoing 

habitat management. The Service 

expects amendment five, if approved, 

would provide substantial protection for 

all of the primary constituent elements 

(PCEs) for the Bay checkerspot butterfly, 

and that protected lands will receive the 

special management required through 

funding mechanisms that will be 

implemented under amendment five of 

the SBMHCP. 

In our August 22, 2007, proposed rule 

(72 FR 48178), we relied largely on the 

draft provisions of amendment five to 

the SBMHCP as the basis of the 

proposed exclusion of Unit 1 from 

critical habitat. As stated above, we 

believed those provisions would 

significantly contribute to the 

conservation of the essential features for 

the Bay checkerspot butterfly. However, 

the finalization of amendment five will 

not occur prior to the publication of this 

final rule. Therefore, our evaluation of 

the potential exclusion of Unit 1 is 

based on the current provisions of the 

SBMHCP, as amended by amendments 

one through four. 

The Bay checkerspot butterfly is not 

currently a covered species under the 

SBMHCP. Although all habitat for the 

Bay checkerspot butterfly on San Bruno 

Mountain is contained within the 

SBMHCP, there is currently inadequate 

funding to manage the grasslands within 

the HCP in a manner that would 

conserve the species’ larval host and 

adult nectar plants (PCE 2). Without 

management actions (such as grazing, 

prescribed burns, and exotic species 

control) that remove the buildup of 

dense stands of grass (thatch), the 

species’ larval host and adult nectar 

plants are outcompeted by nonnative 

vegetation and the Bay checkerspot 

butterfly is no longer able to persist. 

Therefore, without adequate funding, 

the current HCP does not provide 

sufficient protection for the Bay 

checkerspot butterfly or the features 

essential to the conservation of the 

species. 

Including this area in critical habitat 

may serve as an educational tool for 

potential habitat restoration efforts and 

potential re-introduction of the Bay 

checkerspot butterfly to Unit 1. 

Inclusion of these non-Federal lands as 

critical habitat would not necessitate 

additional management and 

conservation activities that would 

exceed the approved SBMHCP and its 

implementing agreement; however, 

amendment 5 to the SBMHCP provides 

funding to carry out the existing 

management plan. As a result, we do 

not anticipate that any action on these 

lands would destroy or adversely 

modify these areas. Therefore, we do not 

expect that including Unit 1 in the final 

designation would lead to any changes 

to actions on the conservation lands to 

avoid destroying or adversely modifying 

that habitat. 

Based upon the above considerations, 

the lands covered under the SBMHCP in 

Unit 1have not been excluded in this 

final revised designation of critical 

habitat. 

Required Determinations 

Regulatory Planning and Review 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under Executive Order 

12866 (E.O. 12866). OMB bases its 

determination upon the following four 

criteria: 

(a) Whether the rule will have an 

annual effect of $100 million or more on 

the economy or adversely affect an 

economic sector, productivity, jobs, the 

environment, or other units of the 

government. 

(b) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(c) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(d) Whether the rule raises novel legal 

or policy issues. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

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 (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. SBREFA amended RFA to 

require Federal agencies to provide a 

statement of the factual basis for 

certifying that the rule will not have a 

significant economic impact on a 

substantial number of small entities. In 

this final rule, we are certifying that the 

critical habitat designation for the Bay 

checkerspot butterfly will not have a 


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significant economic impact on a 

substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration (SBA), small entities 

include small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses. 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 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the 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 the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities. 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect the Bay checkerspot butterfly (see 

Section 7 Consultation section). Federal 

agencies also must consult with us if 

their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities (see Application of the 

‘‘Adverse Modification’’ Standard 

section). 

In our economic analysis of this 

designation, we evaluated the potential 

economic effects on small business 

entities resulting from conservation 

actions related to the designation of 

critical habitat for the Bay checkerspot 

butterfly. No entities that are likely to 

bear incremental impacts from the rule 

are identified as small entities. There 

are only 5 acres in Unit 1 that are 

privately owned and may be affected by 

critical habitat. By definition, private 

landowners are not small businesses. To 

the extent that a private landowner does 

operate a business that relies on the 

potentially affected land, this would be 

considered in this small business 

analysis. According to the economic 

analysis, no information suggests this is 

the case. The economic analysis 

therefore did not forecast impacts to 

small entities associated with the 

designation on private land. Therefore, 

based on the above reasoning and 

currently available information, we 

certify that this rule will not have a 

significant economic impact on a 

substantial number of small entities. A 

regulatory flexibility analysis is not 

required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination (see ADDRESSES for 

information on obtaining a copy of the 

final economic analysis). 

Executive Order 13211 – Energy Supply, 

Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) 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. OMB has provided 

guidance for implementing this 

Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The final 

economic analysis finds that none of 

these criteria are relevant to this 

analysis. Thus, based on information in 

the economic analysis, energy-related 

impacts associated with Bay 

checkerspot butterfly conservation 

activities within the final critical habitat 

designation are not expected. Therefore, 

this action is not a significant energy 

action, and no Statement of Energy 

Effects is required. 

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, or 

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: 


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Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities that receive Federal 

funding, assistance, or permits, or that 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply, nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) Due to current public knowledge 

of the species’ protection, the 

prohibition against take of the species 

both within and outside of the 

designated areas, the fact that the 

majority of the areas are already 

designated as critical habitat, and the 

fact that critical habitat provides no 

incremental restrictions, our economic 

analysis did not forecast any economic 

impacts to small governments. 

Therefore, we do not anticipate that this 

rule will significantly or uniquely affect 

small governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630 

(‘‘Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights’’), we have analyzed the 

potential takings implications of 

designating revised critical habitat for 

the Bay checkerspot butterfly in a 

takings implications assessment. The 

takings implications assessment 

concludes that this designation of 

revised critical habitat for the Bay 

checkerspot butterfly does not pose 

significant takings implications. 

Federalism 

In accordance with E.O. 13132 

(Federalism), this final rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

revised critical habitat designation with 

appropriate State resource agencies in 

California. The designation of critical 

habitat in areas currently occupied by 

the Bay checkerspot butterfly imposes 

no additional restrictions to those 

currently in place and, therefore, has 

little incremental impact on State and 

local governments and their activities. 

The designation may have some benefit 

to these governments in that the areas 

that contain the physical and biological 

features essential to the conservation of 

the species are more clearly defined, 

and the PCEs necessary to support the 

life processes of the species are 

specifically identified. This information 

does not alter where and what federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

the species within the designated areas 

to assist the public in understanding the 

habitat needs of the Bay checkerspot 

butterfly. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 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 

(NEPA) 

It is our position that, outside the 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 

do not need to prepare environmental 

analyses as defined by NEPA (42 U.S.C. 

4321 et seq.) in connection with 

designating critical habitat under the 

Act. 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 by the Circuit Court of the 

United States for the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. 1995), cert. denied 516 

U.S. 1042 (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), E.O. 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. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

Tribal lands that meet the definition of 

critical habitat for the Bay checkerspot 

butterfly. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Sacramento Fish and Wildlife Office 

(see ADDRESSES). 

Author(s) 

The primary author of this package is 

the staff of the Sacramento Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 


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Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. Amend § 17.95(i) by revising the 

entry for ‘‘Bay Checkerspot Butterfly 

(Euphydryas editha bayensis)’’ to read 

as follows: 

§ 17.95 Critical habitat—wildlife. 

(i) Insects. 

(Bay Checkerspot Butterfly 

(Euphydryas editha bayensis) 

(1) Critical habitat units are depicted 

for San Mateo and Santa Clara Counties, 

California, on the maps below. 

(2) The primary constituent elements 

of critical habitat for the Bay 

checkerspot butterfly are the habitat 

components that provide: 

(i) The presence of annual or 

perennial grasslands with little to no 

overstory that provide north–south and 

east–west slopes with a tilt of more than 

7 degrees for larval host plant survival 

during periods of atypical weather (for 

example, drought). Common grassland 

species include wild oats (Avena fatua), 

soft chess (Bromus hordeaceus), 

California oatgrass (Danthonia 

californica), purple needlegrass 

(Nassella pulchra), and Idaho fescue 

(Festuca idahoensis); less abundant in 

these grasslands are annual and 

perennial forbs such as filaree (Erodium 

botrys), true clovers (Trifolium sp.), 

dwarf plantain (Plantago erecta), and 

turkey mullein (Croton setigerus). These 

species, with the exception of dwarf 

plantain, are not required by the Bay 

checkerspot butterfly, but merely are 

provided here as an example of species 

commonly found in California 

grasslands. 

(ii) The presence of the primary larval 

host plant, dwarf plantain (Plantago 

erecta), and at least one of the secondary 

host plants, purple owl’s-clover 

(Castilleja densiflora) or exserted 

paintbrush (Castilleja exserta), are 

required for reproduction, feeding, and 

larval development. 

(iii) The presence of adult nectar 

sources for feeding. Common nectar 

sources include desertparsley 

(Lomatium spp.), California goldfields 

(Lasthenia californica), tidy-tips (Layia 

platyglossa), sea muilla (Muilla 

maritima), scytheleaf onion (Allium 

falcifolium), false babystars (Linanthus 

androsaceus), and intermediate 

fiddleneck (Amsinckia intermedia). 

(iv) Soils derived from serpentinite 

ultramafic rock (Montara, Climara, 

Henneke, Hentine, and Obispo soil 

series) or similar soils (Inks, 

Candlestick, Los Gatos, Fagan, and 

Barnabe soil series) that provide areas 

with fewer aggressive, nonnative plant 

species for larval host plant and adult 

nectar plant survival and reproduction. 

(v) The presence of stable holes and 

cracks in the soil, and surface rock 

outcrops that provide shelter for the 

larval stage of the Bay checkerspot 

butterfly during summer diapause. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing on the effective date 

of this rule and not containing one or 

more of the primary constituent 

elements. 

(4) Critical habitat map units. Data 

layers defining map units were created 

on a base of USGS 7.5′ quadrangles 

using USDA National Agricultural 

Imagery Program (NAIP) county-wide 

MrSID compressed mosaics of 1 meter 

resolution and natural color aerial 

photography from summer 2005. 

Critical habitat units were then mapped 

using Universal Transverse Mercator 

(UTM) zone 10, North American Datum 

(NAD) 1983 coordinates. 

(5) Note: Index map for Bay 

checkerspot butterfly critical habitat 

units follows: 

BILLING CODE 4310–55–S 


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BILLING CODE 4310–55–C 


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(6) Unit 1: San Bruno Mountain, San 

Mateo County, California. From USGS 

1:24,000 scale quadrangle San Francisco 

South. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 52853, 4170062; 52856, 4170038; 

52862, 4170043; 52866, 4170045; 52889, 

4170061; 52915, 4170074; 52940, 

4170084; 52970, 4170091; 52991, 

4170102; 53010, 4170112; 53036, 

4170134; 53057, 4170130; 53070, 

4170151; 53089, 4170171; 53112, 

4170170; 53135, 4170154; 53153, 

4170109; 53184, 4170104; 53203, 

4170081; 53207, 4170041; 53201, 

4169958; 53214, 4169958; 53241, 

4169938; 53257, 4169970; 53281, 

4169974; 53303, 4169965; 53323, 

4169971; 53344, 4169964; 53355, 

4169943; 53374, 4169943; 53402, 

4169930; 53404, 4169906; 53428, 

4169900; 53458, 4169913; 53489, 

4169909; 53527, 4169898; 53563, 

4169900; 53592, 4169902; 53627, 

4169892; 53656, 4169877; 53671, 

4169859; 53713, 4169856; 53710, 

4169804; 53665, 4169711; 53618, 

4169606; 53604, 4169575; 53559, 

4169488; 53521, 4169481; 53492, 

4169479; 53478, 4169457; 53474, 

4169413; 53454, 4169388; 53434, 

4169364; 53387, 4169340; 53357, 

4169322; 53336, 4169300; 53317, 

4169269; 53301, 4169264; 53287, 

4169242; 53260, 4169178; 53235, 

4169105; 53164, 4169029; 53100, 

4169010; 53101, 4168943; 53069, 

4168920; 53013, 4168954; 52936, 

4168954; 52882, 4169005; 52824, 

4169051; 52752, 4169071; 52718, 

4169074; 52650, 4169066; 52628, 

4169020; 52610, 4168977; 52552, 

4168965; 52580, 4169045; 52440, 

4169117; 52362, 4169110; 52352, 

4169041; 52235, 4169066; 52242, 

4169257; 52198, 4169347; 52168, 

4169354; 52159, 4169382; 52152, 

4169426; 52142, 4169428; 52127, 

4169422; 52107, 4169432; 52094, 

4169445; 52088, 4169459; 52083, 

4169491; 52068, 4169488; 52054, 

4169493; 52049, 4169483; 52049, 

4169465; 52046, 4169432; 52038, 

4169413; 52024, 4169400; 52010, 

4169390; 51996, 4169388; 51993, 

4169373; 51990, 4169352; 51989, 

4169338; 51977, 4169310; 51954, 

4169295; 51930, 4169292; 51912, 

4169296; 51896, 4169310; 51876, 

4169332; 51849, 4169369; 51827, 

4169382; 51815, 4169391; 51792, 

4169390; 51759, 4169390; 51747, 

4169402; 51752, 4169424; 51760, 

4169437; 51769, 4169458; 51771, 

4169481; 51797, 4169559; 51721, 

4169595; 51695, 4169469; 51667, 

4169464; 51647, 4169469; 51623, 

4169501; 51589, 4169527; 51592, 

4169674; 51570, 4169677; 51550, 

4169674; 51508, 4169668; 51477, 

4169671; 51435, 4169674; 51423, 

4169719; 51419, 4169736; 51408, 

4169731; 51394, 4169713; 51379, 

4169697; 51354, 4169691; 51341, 

4169690; 51337, 4169681; 51315, 

4169681; 51303, 4169689; 51279, 

4169713; 51229, 4169810; 51184, 

4169770; 51171, 4169745; 51155, 

4169731; 51135, 4169723; 51129, 

4169719; 51129, 4169710; 51129, 

4169690; 51127, 4169669; 51118, 

4169651; 51104, 4169629; 51086, 

4169609; 51061, 4169598; 51035, 

4169591; 50999, 4169589; 50967, 

4169591; 50935, 4169599; 50913, 

4169616; 50896, 4169638; 50882, 

4169668; 50844, 4169623; 50831, 

4169611; 50810, 4169588; 50792, 

4169588; 50777, 4169590; 50760, 

4169600; 50748, 4169602; 50738, 

4169589; 50731, 4169574; 50731, 

4169561; 50736, 4169542; 50740, 

4169517; 50741, 4169495; 50736, 

4169475; 50729, 4169463; 50723, 

4169447; 50722, 4169430; 50718, 

4169415; 50710, 4169399; 50701, 

4169385; 50690, 4169374; 50679, 

4169365; 50674, 4169349; 50664, 

4169330; 50655, 4169312; 50635, 

4169299; 50623, 4169292; 50613, 

4169284; 50613, 4169268; 50597, 

4169255; 50583, 4169239; 50580, 

4169215; 50583, 4169191; 50613, 

4169153; 50665, 4169090; 50650, 

4169068; 50617, 4169048; 50572, 

4169043; 50542, 4169042; 50519, 

4169048; 50498, 4169052; 50483, 

4169061; 50461, 4169073; 50444, 

4169085; 50387, 4169124; 50362, 

4169151; 50346, 4169178; 50322, 

4169174; 50297, 4169175; 50279, 

4169181; 50235, 4169183; 50203, 

4169194; 50169, 4169217; 50139, 

4169238; 50122, 4169250; 50104, 

4169267; 50081, 4169290; 50073, 

4169317; 50068, 4169345; 50069, 

4169377; 50070, 4169388; 50068, 

4169402; 50068, 4169418; 50076, 

4169438; 50087, 4169455; 50087, 

4169464; 50068, 4169486; 50054, 

4169509; 50044, 4169534; 50035, 

4169557; 50033, 4169584; 50034, 

4169608; 50040, 4169631; 50045, 

4169650; 50050, 4169664; 50055, 

4169673; 50059, 4169686; 50068, 

4169712; 50078, 4169734; 50090, 

4169776; 50096, 4169811; 50117, 

4169844; 50136, 4169877; 50152, 

4169904; 50180, 4169920; 50235, 

4169925; 50279, 4169932; 50323, 

4169940; 50364, 4169954; 50399, 

4169970; 50412, 4169998; 50435, 

4170034; 50460, 4170069; 50490, 

4170103; 50485, 4170138; 50482, 

4170165; 50479, 4170188; 50491, 

4170214; 50483, 4170257; 50495, 

4170295; 50515, 4170330; 50547, 

4170370; 50580, 4170407; 50613, 

4170479; 50624, 4170446; 50640, 

4170421; 50667, 4170395; 50706, 

4170376; 50730, 4170351; 50756, 

4170336; 50784, 4170314; 50799, 

4170279; 50794, 4170250; 50767, 

4170227; 50774, 4170205; 50811, 

4170182; 50851, 4170185; 50881, 

4170201; 50892, 4170233; 50944, 

4170243; 50957, 4170277; 50980, 

4170307; 51017, 4170327; 51050, 

4170349; 51063, 4170366; 51069, 

4170404; 51069, 4170462; 51093, 

4170507; 51112, 4170535; 51128, 

4170569; 51159, 4170601; 51180, 

4170643; 51195, 4170685; 51203, 

4170750; 51268, 4170754; 51274, 

4170805; 51322, 4170818; 51364, 

4170820; 51385, 4170786; 51354, 

4170744; 51345, 4170699; 51303, 

4170619; 51206, 4170481; 51188, 

4170457; 51133, 4170443; 51104, 

4170432; 51101, 4170397; 51113, 

4170364; 51119, 4170341; 51150, 

4170331; 51167, 4170314; 51187, 

4170309; 51214, 4170298; 51227, 

4170315; 51243, 4170321; 51262, 

4170291; 51287, 4170284; 51316, 

4170276; 51343, 4170291; 51382, 

4170291; 51427, 4170277; 51455, 

4170354; 51495, 4170371; 51506, 

4170328; 51536, 4170284; 51569, 

4170288; 51589, 4170279; 51614, 

4170278; 51628, 4170264; 51622, 

4170249; 51626, 4170230; 51629, 

4170215; 51643, 4170211; 51657, 

4170201; 51673, 4170196; 51689, 

4170185; 51711, 4170180; 51736, 

4170180; 51767, 4170176; 51793, 

4170180; 51823, 4170182; 51845, 

4170150; 51843, 4170122; 51871, 

4170112; 51874, 4170144; 51879, 

4170178; 51893, 4170205; 51914, 

4170246; 51916, 4170287; 51943, 

4170335; 51944, 4170395; 51956, 

4170442; 51967, 4170500; 51964, 

4170535; 51947, 4170559; 51929, 

4170584; 51937, 4170647; 51943, 

4170683; 51944, 4170710; 51919, 

4170764; 51916, 4170789; 51925, 

4170815; 51944, 4170850; 51955, 

4170879; 51974, 4170905; 51980, 

4170939; 51981, 4170982; 51997, 

4170985; 52017, 4170989; 52040, 

4170986; 52056, 4170972; 52076, 

4170953; 52091, 4170957; 52113, 

4170977; 52150, 4170992; 52173, 

4170975; 52186, 4170953; 52150, 

4170924; 52147, 4170872; 52166, 

4170834; 52169, 4170799; 52160, 

4170686; 52125, 4170673; 52125, 

4170651; 52160, 4170651; 52157, 

4170619; 52131, 4170600; 52141, 

4170564; 52173, 4170564; 52176, 

4170503; 52128, 4170295; 52125, 

4170263; 52134, 4170222; 52153, 


sroberts on PROD1PC76 with RULES
50436 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

4170202; 52176, 4170190; 52214, 

4170190; 52243, 4170206; 52266, 

4170196; 52266, 4170129; 52236, 

4170086; 52202, 4170051; 52145, 

4169994; 52165, 4169960; 52221, 

4169933; 52269, 4169930; 52319, 

4169895; 52385, 4169894; 52425, 

4169868; 52461, 4169881; 52449, 

4170010; 52462, 4170073; 52488, 

4170158; 52518, 4170166; 52539, 

4170168; 52560, 4170160; 52575, 

4170162; 52596, 4170173; 52616, 

4170174; 52651, 4170154; 52683, 

4170159; 52723, 4170154; 52754, 

4170155; 52782, 4170155; 52805, 

4170147; 52831, 4170134; 52847, 

4170094; returning to 52853, 4170062. 

(ii) Note: Map of Unit 1 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50437 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.001</GPH>
50438 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(7) Unit 2: Pulgas Ridge, San Mateo 

County, California. From USGS 1:24,000 

scale quadrangle San Mateo. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 558502, 4151442; 558422, 

4151451; 558339, 4151484; 558223, 

4151555; 558094, 4151656; 557957, 

4151788; 557745, 4152013; 557545, 

4152228; 557398, 4152392; 557274, 

4152523; 557191, 4152632; 557123, 

4152751; 557076, 4152838; 557061, 

4152902; 557012, 4153060; 557027, 

4153077; 557027, 4153130; 556994, 

4153145; 556961, 4153171; 556939, 

4153182; 556936, 4153216; 556913, 

4153220; 556880, 4153242; 556868, 

4153273; 556867, 4153329; 557060, 

4153350; 557277, 4153095; 557358, 

4153009; 557407, 4152900; 557494, 

4152681; 557576, 4152631; 557851, 

4152470; 558104, 4152134; 558210, 

4152004; 558320, 4151850; 558268, 

4151803; 558302, 4151758; 558363, 

4151800; 558474, 4151666; 558625, 

4151470; 558602, 4151463; 558557, 

4151448; returning to 558502, 4151442. 

(ii) Note: Map of Unit 2 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50439 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.002</GPH>
50440 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(8) Unit 3: Edgewood Park, San Mateo 

County, California. From USGS 1:24,000 

scale quadrangle Woodside. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 564162, 4146806; 564197, 

4146796; 564234, 4146748; 564270, 

4146731; 564196, 4146657; 564182, 

4146642; 564169, 4146630; 564154, 

4146615; 564142, 4146585; 564128, 

4146601; 564108, 4146585; 564097, 

4146565; 564092, 4146540; 564078, 

4146514; 564061, 4146457; 564032, 

4146525; 564003, 4146549; 563949, 

4146575; 563903, 4146582; 563868, 

4146576; 563834, 4146542; 563809, 

4146492; 563808, 4146448; 563842, 

4146394; 563811, 4146384; 563774, 

4146364; 563747, 4146377; 563726, 

4146394; 563702, 4146416; 563668, 

4146413; 563684, 4146384; 563656, 

4146377; 563626, 4146409; 563555, 

4146423; 563533, 4146403; 563533, 

4146374; 563520, 4146338; 563543, 

4146316; 563596, 4146356; 563604, 

4146338; 563576, 4146297; 563520, 

4146284; 563450, 4146312; 563396, 

4146314; 563360, 4146293; 563338, 

4146263; 563340, 4146229; 563365, 

4146198; 563424, 4146176; 563464, 

4146140; 563488, 4146094; 563459, 

4146043; 563420, 4146003; 563361, 

4145965; 563305, 4145945; 563215, 

4145902; 563106, 4145980; 563077, 

4145966; 563050, 4145976; 563014, 

4145948; 562923, 4146053; 562820, 

4146153; 562674, 4146184; 562550, 

4146190; 562503, 4146146; 562432, 

4146134; 562367, 4146141; 562337, 

4146177; 562290, 4146269; 562106, 

4146315; 562126, 4146380; 562087, 

4146395; 562148, 4146523; 562121, 

4146554; 562162, 4146602; 562260, 

4146697; 562284, 4146723; 562369, 

4146818; 562418, 4146870; 562467, 

4146918; 562548, 4147005; 562667, 

4147115; 562724, 4147186; 562744, 

4147200; 562771, 4147206; 562796, 

4147214; 562816, 4147212; 562849, 

4147216; 562862, 4147203; 562874, 

4147191; 562858, 4147160; 562876, 

4147148; 562907, 4147149; 562915, 

4147187; 562936, 4147221; 562955, 

4147207; 562963, 4147174; 563001, 

4147137; 563034, 4147121; 563052, 

4147122; 563063, 4147135; 563063, 

4147160; 563070, 4147174; 563098, 

4147180; 563141, 4147173; 563179, 

4147179; 563199, 4147187; 563196, 

4147227; 563164, 4147243; 563156, 

4147274; 563140, 4147290; 563124, 

4147308; 563103, 4147329; 563087, 

4147356; 563093, 4147379; 563113, 

4147405; 563138, 4147424; 563196, 

4147403; 563228, 4147396; 563247, 

4147392; 563256, 4147354; 563275, 

4147334; 563304, 4147313; 563304, 

4147357; 563312, 4147395; 563324, 

4147437; 563329, 4147458; 563336, 

4147478; 563334, 4147508; 563354, 

4147530; 563371, 4147543; 563411, 

4147539; 563440, 4147526; 563465, 

4147513; 563468, 4147488; 563457, 

4147462; 563446, 4147441; 563436, 

4147420; 563429, 4147405; 563422, 

4147390; 563415, 4147377; 563414, 

4147360; 563406, 4147327; 563408, 

4147272; 563443, 4147244; 563457, 

4147229; 563480, 4147222; 563502, 

4147229; 563517, 4147251; 563534, 

4147276; 563553, 4147283; 563569, 

4147282; 563595, 4147274; 563623, 

4147264; 563646, 4147239; 563645, 

4147181; 563608, 4147135; 563604, 

4147096; 563609, 4147060; 563647, 

4147048; 563675, 4147047; 563668, 

4147013; 563671, 4146982; 563673, 

4146964; 563675, 4146954; 563669, 

4146934; 563697, 4146903; 563739, 

4146896; 563788, 4146903; 563825, 

4146934; 563853, 4146979; 563862, 

4146993; 563882, 4147004; 563902, 

4147007; 563915, 4147002; 563912, 

4146981; 563900, 4146963; 563883, 

4146944; 563881, 4146913; 563889, 

4146885; 563888, 4146855; 563858, 

4146857; 563817, 4146861; 563749, 

4146833; 563727, 4146798; 563744, 

4146751; 563776, 4146699; 563799, 

4146661; 563863, 4146689; 563971, 

4146735; 563979, 4146753; 563997, 

4146758; 564017, 4146756; 564030, 

4146769; 564048, 4146778; 564080, 

4146775; 564099, 4146784; 564131, 

4146803; returning to 564162, 4146806. 

(ii) Note: Map of Unit 3 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50441 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.003</GPH>
50442 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(9) Unit 4: Jasper Ridge, San Mateo 

County, California. From USGS 1:24,000 

scale quadrangle Palo Alto. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 569513, 4139881; 569524, 

4139862; 569550, 4139849; 569569, 

4139829; 569580, 4139812; 569578, 

4139791; 569578, 4139780; 569605, 

4139771; 569631, 4139770; 569696, 

4139789; 569703, 4139764; 569676, 

4139743; 569686, 4139716; 569736, 

4139668; 569782, 4139670; 569815, 

4139659; 569839, 4139671; 569869, 

4139687; 569893, 4139716; 569915, 

4139714; 569954, 4139692; 569993, 

4139680; 570014, 4139658; 570027, 

4139642; 570046, 4139627; 569983, 

4139608; 568859, 4139177; 568865, 

4139205; 568889, 4139237; 568921, 

4139265; 568951, 4139280; 568962, 

4139308; 568947, 4139319; 568908, 

4139319; 568882, 4139319; 568882, 

4139327; 568885, 4139340; 568885, 

4139353; 568876, 4139355; 568869, 

4139342; 568848, 4139319; 568831, 

4139278; 568816, 4139261; 568797, 

4139250; 568775, 4139252; 568758, 

4139261; 568747, 4139261; 568736, 

4139274; 568745, 4139299; 568749, 

4139323; 568728, 4139344; 568702, 

4139342; 568674, 4139342; 568666, 

4139342; 568664, 4139362; 568676, 

4139387; 568698, 4139407; 568743, 

4139411; 568771, 4139411; 568805, 

4139411; 568816, 4139441; 568846, 

4139490; 568852, 4139520; 568852, 

4139527; 568844, 4139531; 568833, 

4139507; 568788, 4139495; 568771, 

4139495; 568749, 4139505; 568741, 

4139527; 568730, 4139548; 568724, 

4139548; 568713, 4139531; 568694, 

4139518; 568685, 4139503; 568674, 

4139501; 568657, 4139501; 568642, 

4139495; 568627, 4139484; 568603, 

4139473; 568597, 4139499; 568603, 

4139512; 568520, 4139578; 568505, 

4139565; 568475, 4139565; 568470, 

4139574; 568479, 4139595; 568485, 

4139621; 568481, 4139625; 568462, 

4139617; 568425, 4139604; 568400, 

4139604; 568389, 4139623; 568389, 

4139641; 568391, 4139668; 568404, 

4139688; 568410, 4139705; 568410, 

4139722; 568412, 4139741; 568417, 

4139746; 568408, 4139752; 568389, 

4139737; 568361, 4139718; 568325, 

4139694; 568314, 4139694; 568307, 

4139703; 568322, 4139737; 568335, 

4139765; 568348, 4139791; 568335, 

4139793; 568315, 4139789; 568305, 

4139799; 568296, 4139814; 568270, 

4139808; 568246, 4139783; 568225, 

4139748; 568210, 4139748; 568210, 

4139778; 568221, 4139803; 568247, 

4139836; 568261, 4139857; 568252, 

4139870; 568210, 4139863; 568165, 

4139858; 568142, 4139865; 568145, 

4139890; 568159, 4139919; 568152, 

4139934; 568108, 4139937; 568099, 

4139966; 568083, 4139989; 568070, 

4140011; 568066, 4140038; 568090, 

4140032; 568131, 4139998; 568168, 

4139984; 568203, 4139975; 568250, 

4139976; 568279, 4139979; 568289, 

4139967; 568294, 4139945; 568303, 

4139922; 568324, 4139914; 568345, 

4139906; 568371, 4139896; 568407, 

4139913; 568461, 4139913; 568495, 

4139923; 568526, 4139951; 568571, 

4140000; 568574, 4140034; 568543, 

4140051; 568497, 4140049; 568467, 

4140066; 568430, 4140076; 568397, 

4140063; 568353, 4140055; 568300, 

4140059; 568250, 4140072; 568225, 

4140087; 568205, 4140107; 568200, 

4140141; 568207, 4140177; 568200, 

4140183; 568163, 4140157; 568082, 

4140161; 568023, 4140180; 568005, 

4140193; 567998, 4140211; 568015, 

4140225; 568027, 4140241; 568028, 

4140259; 568006, 4140269; 567984, 

4140271; 567967, 4140280; 567962, 

4140301; 567948, 4140320; 567930, 

4140339; 567915, 4140373; 567904, 

4140392; 567938, 4140398; 567980, 

4140405; 568008, 4140418; 568001, 

4140442; 567988, 4140457; 568031, 

4140467; 568098, 4140470; 568123, 

4140484; 568166, 4140471; 568183, 

4140472; 568180, 4140494; 568172, 

4140517; 568147, 4140543; 568153, 

4140554; 568184, 4140561; 568209, 

4140577; 568249, 4140579; 568285, 

4140585; 568318, 4140597; 568356, 

4140608; 568383, 4140600; 568423, 

4140577; 568471, 4140580; 568488, 

4140590; 568483, 4140612; 568507, 

4140625; 568551, 4140623; 568572, 

4140632; 568606, 4140653; 568658, 

4140676; 568681, 4140691; 568705, 

4140693; 568723, 4140687; 568741, 

4140684; 568762, 4140673; 568807, 

4140653; 568830, 4140634; 568862, 

4140607; 568873, 4140591; 568894, 

4140584; 568891, 4140566; 568881, 

4140556; 568856, 4140536; 568838, 

4140520; 568834, 4140499; 568812, 

4140474; 568803, 4140445; 568791, 

4140422; 568786, 4140395; 568739, 

4140382; 568733, 4140366; 568719, 

4140353; 568682, 4140355; 568648, 

4140350; 568651, 4140331; 568668, 

4140312; 568672, 4140286; 568653, 

4140278; 568668, 4140256; 568713, 

4140235; 568736, 4140273; 568769, 

4140284; 568805, 4140303; 568827, 

4140297; 568848, 4140312; 568872, 

4140321; 568918, 4140335; 568964, 

4140327; 569000, 4140248; 569024, 

4140226; 569058, 4140256; 569097, 

4140267; 569129, 4140244; 569166, 

4140211; 569186, 4140185; 569202, 

4140165; 569217, 4140136; 569219, 

4140119; 569228, 4140106; 569240, 

4140094; 569260, 4140088; 569282, 

4140073; 569286, 4140045; 569284, 

4140017; 569286, 4139986; 569279, 

4139961; 569254, 4139955; 569242, 

4139943; 569217, 4139920; 569211, 

4139900; 569246, 4139893; 569275, 

4139877; 569305, 4139877; 569342, 

4139883; 569367, 4139919; 569404, 

4139945; 569434, 4139949; 569455, 

4139945; 569485, 4139917; returning to 

569513, 4139881. 

(ii) Note: Map of Unit 4 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50443 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.004</GPH>
50444 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(10) Unit 5: Metcalf, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles San Jose East, Lick 

Observatory, Santa Teresa Hills, and 

Morgan Hill. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 611242, 4121203; 611273, 

4121300; 611382, 4121353; 611488, 

4121320; 611607, 4121360; 611707, 

4121423; 611776, 4121486; 611856, 

4121482; 611945, 4121496; 612084, 

4121502; 612190, 4121555; 612315, 

4121543; 612448, 4121585; 612577, 

4121572; 612974, 4121532; 613302, 

4121410; 613507, 4121310; 613672, 

4121337; 613907, 4121337; 614056, 

4121410; 614393, 4121110; 614418, 

4121079; 614479, 4121095; 614513, 

4121108; 614547, 4121103; 614579, 

4121103; 614616, 4121102; 614628, 

4121071; 614610, 4121032; 614633, 

4121024; 614691, 4121025; 614737, 

4121019; 614760, 4120988; 614750, 

4120961; 614713, 4120939; 614711, 

4120903; 614703, 4120876; 614718, 

4120863; 614731, 4120832; 614743, 

4120810; 614774, 4120852; 614784, 

4120819; 614904, 4120878; 614919, 

4120849; 614913, 4120812; 614919, 

4120775; 614897, 4120730; 614874, 

4120715; 614886, 4120686; 614891, 

4120659; 614921, 4120671; 614969, 

4120678; 614999, 4120664; 614999, 

4120625; 614974, 4120593; 614980, 

4120547; 614950, 4120517; 614942, 

4120488; 614970, 4120470; 614986, 

4120424; 614996, 4120339; 615037, 

4120410; 615163, 4120270; 615782, 

4119656; 615873, 4119555; 616548, 

4118936; 616751, 4118743; 617140, 

4118453; 617774, 4118066; 617873, 

4118037; 617986, 4118057; 618040, 

4118015; 617983, 4117993; 617934, 

4117940; 617896, 4117916; 617930, 

4117901; 617984, 4117896; 618000, 

4117874; 618032, 4117863; 618054, 

4117849; 618052, 4117820; 618027, 

4117810; 618025, 4117766; 618067, 

4117760; 618067, 4117728; 618144, 

4117713; 618222, 4117720; 618262, 

4117696; 618278, 4117655; 618256, 

4117633; 618279, 4117591; 618286, 

4117527; 618323, 4117503; 618317, 

4117455; 618359, 4117439; 618413, 

4117435; 618427, 4117461; 618457, 

4117471; 618489, 4117476; 618489, 

4117501; 618516, 4117516; 618545, 

4117506; 618559, 4117469; 618589, 

4117466; 618618, 4117430; 618642, 

4117442; 618642, 4117477; 618684, 

4117503; 618711, 4117527; 618730, 

4117550; 618760, 4117564; 618797, 

4117553; 618818, 4117545; 618836, 

4117511; 618852, 4117500; 618877, 

4117494; 618874, 4117457; 618894, 

4117445; 618932, 4117427; 618932, 

4117442; 618957, 4117445; 618976, 

4117432; 618976, 4117393; 619062, 

4117364; 619092, 4117373; 619113, 

4117369; 619111, 4117323; 619145, 

4117283; 619062, 4117188; 619058, 

4117150; 619037, 4117123; 618984, 

4117044; 619147, 4117114; 619236, 

4117123; 619294, 4117077; 619329, 

4117080; 619357, 4117092; 619387, 

4117074; 619392, 4117037; 619382, 

4117011; 619414, 4117004; 619446, 

4116993; 619441, 4116938; 619469, 

4116920; 619483, 4116876; 619460, 

4116840; 619496, 4116812; 619525, 

4116780; 619536, 4116746; 619553, 

4116743; 619592, 4116766; 619630, 

4116739; 619626, 4116701; 619641, 

4116687; 619677, 4116701; 619706, 

4116681; 619753, 4116690; 619769, 

4116667; 619745, 4116648; 619789, 

4116592; 619775, 4116566; 619685, 

4116547; 619768, 4116513; 619764, 

4116489; 619720, 4116399; 619758, 

4116390; 619725, 4116298; 619792, 

4116295; 619827, 4116268; 619843, 

4116231; 619832, 4116189; 619956, 

4116200; 620026, 4116196; 620027, 

4116146; 620037, 4116090; 619981, 

4115976; 620018, 4115910; 619981, 

4115866; 619891, 4115850; 619903, 

4115813; 619978, 4115796; 619996, 

4115766; 620072, 4115793; 620111, 

4115763; 620096, 4115712; 620116, 

4115680; 620199, 4115750; 620314, 

4115703; 620320, 4115653; 620356, 

4115633; 620401, 4115659; 620444, 

4115506; 620503, 4115495; 620571, 

4115549; 620617, 4115454; 620788, 

4115324; 620903, 4115266; 620995, 

4115260; 621058, 4115374; 621097, 

4115435; 621107, 4115413; 621122, 

4115390; 621149, 4115374; 621156, 

4115344; 621200, 4115254; 621608, 

4115039; 621668, 4115004; 621715, 

4114977; 621744, 4114932; 621789, 

4114879; 621788, 4114836; 621788, 

4114810; 621768, 4114773; 621773, 

4114740; 621772, 4114662; 621773, 

4114638; 621766, 4114618; 621782, 

4114597; 621842, 4114600; 621857, 

4114586; 621875, 4114583; 621881, 

4114552; 621827, 4114518; 621800, 

4114474; 621727, 4114441; 621038, 

4114280; 620937, 4114292; 620831, 

4114261; 620046, 4114525; 619795, 

4114578; 619736, 4114633; 619738, 

4114702; 619674, 4114732; 619453, 

4114356; 619351, 4114262; 619197, 

4114240; 619041, 4114293; 618895, 

4114410; 618599, 4114424; 618361, 

4114506; 618185, 4114530; 617740, 

4115026; 617095, 4115754; 616662, 

4116332; 616403, 4116568; 616244, 

4116697; 616203, 4116810; 616126, 

4117005; 615933, 4117032; 615789, 

4117099; 615722, 4117186; 615933, 

4117280; 616097, 4117217; 616167, 

4117292; 616030, 4117460; 615914, 

4117446; 615683, 4117614; 615229, 

4117907; 615099, 4117854; 615457, 

4117510; 615390, 4117438; 615003, 

4117751; 614469, 4118133; 613965, 

4118481; 613890, 4118524; 613954, 

4118666; 613790, 4118831; 613636, 

4118894; 613636, 4119149; 613557, 

4119283; 613403, 4119531; 613254, 

4119651; 613077, 4119606; 612893, 

4119620; 612832, 4119665; 612853, 

4119708; 612847, 4119729; 612784, 

4119705; 612770, 4119740; 612715, 

4119760; 612640, 4119824; 612618, 

4119872; 612583, 4119977; 612062, 

4120400; 611707, 4120758; 611686, 

4120748; 611631, 4120824; 611294, 

4121127; returning to 611242, 4121203. 

(ii) Note: Unit 5 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50445 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.005</GPH>
50446 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(11) Unit 6: Tulare Hill, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles San Jose East, Lick 

Observatory, Santa Teresa Hills, and 

Morgan Hill. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 610971, 4120478; 611134, 

4120435; 611200, 4120245; 611116, 

4120132; 611181, 4119977; 611212, 

4119824; 611280, 4119743; 611293, 

4119653; 611241, 4119512; 610967, 

4119335; 610786, 4119391; 610392, 

4119622; 610302, 4119674; 610057, 

4119813; 610117, 4119846; 609929, 

4120074; 609799, 4120229; 609915, 

4120374; 609819, 4120430; 610113, 

4120749; 610310, 4120833; 610459, 

4120769; 610531, 4120847; 610797, 

4120659; 610776, 4120464; 610843, 

4120449; returning to 610971, 4120478. 

(ii) Note: Unit 6 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

(12) Unit 7: Santa Teresa Hills, Santa 

Clara County, California. From USGS 

1:24,000 scale quadrangles San Jose 

East, Lick Observatory, Santa Teresa 

Hills, and Morgan Hill. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 608447, 4119332; 608474, 

4119309; 608576, 4119335; 608615, 

4119330; 608689, 4119306; 608706, 

4119356; 608749, 4119377; 608758, 

4119360; 608746, 4119302; 608760, 

4119230; 608722, 4119159; 608656, 

4119124; 608669, 4119080; 608762, 

4119101; 608846, 4119140; 608892, 

4119222; 609000, 4119082; 609117, 

4119040; 609190, 4119077; 609244, 

4119107; 609509, 4119359; 609534, 

4119358; 609548, 4119366; 609549, 

4119393; 609568, 4119444; 609582, 

4119466; 609606, 4119520; 609628, 

4119547; 609656, 4119568; 610016, 

4119783; 610228, 4119650; 610177, 

4119543; 610143, 4119434; 610086, 

4119368; 610019, 4119278; 609929, 

4119219; 609928, 4119116; 609956, 

4119070; 610001, 4119067; 610048, 

4119044; 610138, 4119037; 610165, 

4119006; 610240, 4118997; 610306, 

4118956; 610325, 4118923; 610343, 

4118915; 610381, 4118905; 610405, 

4118877; 610414, 4118822; 610436, 

4118812; 610464, 4118833; 610521, 

4118824; 610564, 4118822; 610592, 

4118815; 610612, 4118795; 610617, 

4118776; 610617, 4118756; 610624, 

4118735; 610650, 4118729; 610669, 

4118717; 610700, 4118710; 610723, 

4118718; 610757, 4118723; 610773, 

4118706; 610780, 4118658; 610790, 

4118646; 610787, 4118598; 610775, 

4118570; 610773, 4118536; 610771, 

4118519; 610782, 4118517; 610822, 

4118530; 610842, 4118528; 610864, 

4118520; 610880, 4118508; 610899, 

4118501; 610915, 4118487; 610914, 

4118461; 610906, 4118446; 610889, 

4118430; 610886, 4118417; 610902, 

4118393; 610900, 4118367; 610896, 

4118340; 610912, 4118330; 610934, 

4118310; 610940, 4118282; 610932, 

4118260; 610935, 4118251; 610949, 

4118231; 610955, 4118207; 610957, 

4118181; 610964, 4118176; 610991, 

4118168; 610989, 4118152; 610992, 

4118113; 611000, 4118109; 611019, 

4118109; 611041, 4118121; 611066, 

4118127; 611096, 4118122; 611114, 

4118125; 611160, 4118145; 611185, 

4118147; 611220, 4118143; 611254, 

4118124; 611259, 4118093; 611250, 

4118046; 611250, 4118012; 611247, 

4117972; 611255, 4117966; 611276, 

4117974; 611292, 4117975; 611331, 

4117963; 611374, 4117922; 611421, 

4117919; 611446, 4117915; 611462, 

4117908; 611475, 4117891; 611511, 

4117839; 611533, 4117814; 611554, 

4117805; 611567, 4117772; 611556, 

4117741; 611560, 4117712; 611562, 

4117677; 611517, 4117611; 611572, 

4117536; 611578, 4117500; 611570, 

4117478; 611547, 4117451; 611503, 

4117429; 611458, 4117422; 611405, 

4117439; 611323, 4117480; 611291, 

4117518; 611268, 4117566; 611230, 

4117618; 611169, 4117625; 611100, 

4117637; 611072, 4117668; 611021, 

4117766; 610962, 4117743; 610985, 

4117678; 611007, 4117611; 610957, 

4117563; 610836, 4117565; 610800, 

4117537; 610773, 4117534; 610752, 

4117518; 610733, 4117438; 610716, 

4117404; 610610, 4117272; 610572, 

4117243; 610501, 4117238; 610412, 

4117262; 610370, 4117294; 610350, 

4117341; 610281, 4117354; 610220, 

4117381; 610179, 4117413; 610146, 

4117441; 610127, 4117492; 610058, 

4117531; 609819, 4117309; 609692, 

4117372; 609593, 4117353; 609526, 

4117409; 609460, 4117386; 609405, 

4117409; 609091, 4117456; 608872, 

4117364; 608840, 4117297; 608733, 

4117262; 608502, 4117237; 608524, 

4117204; 608603, 4117138; 608723, 

4117081; 608830, 4117067; 608934, 

4117066; 609071, 4117093; 609181, 

4117210; 609225, 4117208; 609240, 

4117159; 609163, 4117083; 609228, 

4117009; 609303, 4116981; 609325, 

4117003; 609303, 4117052; 609302, 

4117087; 609324, 4117084; 609349, 

4117043; 609401, 4117059; 609409, 

4117162; 609430, 4117203; 609458, 

4117190; 609471, 4117150; 609435, 

4117016; 609506, 4116986; 609350, 

4116852; 609333, 4116880; 609256, 

4116873; 609228, 4116889; 609205, 

4116873; 609163, 4116848; 609131, 

4116849; 609102, 4116863; 609061, 

4116836; 609011, 4116841; 608843, 

4116838; 608804, 4116864; 608758, 

4116878; 608714, 4116867; 608672, 

4116827; 608625, 4116899; 608542, 

4116933; 608489, 4117019; 608426, 

4117079; 608382, 4117115; 608343, 

4117134; 608305, 4117136; 608259, 

4117127; 608216, 4117129; 608210, 

4117170; 608197, 4117192; 608138, 

4117197; 608062, 4117234; 608020, 

4117241; 607997, 4117227; 607959, 

4117228; 607963, 4117262; 607941, 

4117301; 607896, 4117334; 607909, 

4117377; 608067, 4117348; 608170, 

4117343; 608289, 4117332; 608298, 

4117392; 608239, 4117418; 608166, 

4117436; 608066, 4117450; 608012, 

4117453; 607942, 4117507; 607907, 

4117572; 607938, 4117605; 607924, 

4117642; 607848, 4117626; 607678, 

4117759; 607397, 4117766; 607129, 

4117689; 606990, 4117599; 606767, 

4117931; 606643, 4118119; 606701, 

4118302; 606742, 4118358; 606828, 

4118289; 606858, 4118323; 606693, 

4118461; 606644, 4118391; 606609, 

4118328; 606542, 4118254; 606425, 

4118183; 606179, 4118078; 605438, 

4118128; 605263, 4118203; 605074, 

4118293; 604975, 4118365; 605178, 

4118600; 604548, 4118947; 604625, 

4119145; 604788, 4119569; 604936, 

4119955; 604817, 4119974; 604817, 

4120089; 604555, 4120119; 604414, 

4120139; 604283, 4120149; 604549, 

4120858; 604561, 4120889; 604564, 

4120912; 604561, 4120952; 604572, 

4120972; 604606, 4120977; 604622, 

4120963; 604624, 4120946; 604628, 

4120920; 604645, 4120904; 604680, 

4120899; 604729, 4120910; 604729, 

4120867; 604787, 4120831; 604810, 

4120814; 604844, 4120783; 604890, 

4120765; 604924, 4120799; 604948, 

4120835; 604970, 4120831; 604986, 

4120786; 605003, 4120742; 605064, 

4120714; 605093, 4120722; 605132, 

4120760; 605163, 4120770; 605185, 

4120744; 605219, 4120689; 605272, 

4120656; 605329, 4120668; 605395, 

4120706; 605405, 4120671; 605424, 

4120642; 605452, 4120646; 605473, 

4120657; 605509, 4120656; 605548, 

4120664; 605588, 4120656; 605614, 

4120682; 605643, 4120689; 605647, 

4120649; 605679, 4120645; 605711, 

4120633; 605746, 4120610; 605728, 

4120571; 605712, 4120545; 605685, 

4120526; 605653, 4120525; 605613, 

4120522; 605608, 4120506; 605619, 

4120496; 605645, 4120487; 605709, 

4120480; 605729, 4120443; 605749, 

4120426; 605775, 4120431; 605792, 

4120456; 605809, 4120473; 605836, 

4120498; 605864, 4120508; 605879, 

4120512; 605904, 4120506; 605928, 

4120490; 605945, 4120465; 605949, 

4120449; 605945, 4120432; 605953, 

4120401; 605971, 4120390; 606001, 

4120399; 606040, 4120411; 606076, 


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4120422; 606105, 4120433; 606133, 

4120448; 606158, 4120474; 606200, 

4120494; 606241, 4120516; 606272, 

4120540; 606310, 4120548; 606353, 

4120567; 606378, 4120587; 606394, 

4120604; 606407, 4120596; 606422, 

4120586; 606474, 4120580; 606521, 

4120577; 606553, 4120566; 606589, 

4120544; 606625, 4120524; 606653, 

4120496; 606653, 4120520; 606626, 

4120579; 606625, 4120607; 606650, 

4120613; 606703, 4120612; 606736, 

4120611; 606751, 4120586; 606748, 

4120556; 606762, 4120552; 606804, 

4120566; 606861, 4120594; 606917, 

4120615; 606968, 4120624; 607030, 

4120627; 607084, 4120614; 607139, 

4120594; 607197, 4120614; 607194, 

4120598; 607195, 4120569; 607195, 

4120549; 607188, 4120521; 607174, 

4120507; 607179, 4120472; 607191, 

4120455; 607214, 4120443; 607247, 

4120427; 607277, 4120408; 607280, 

4120373; 607298, 4120340; 607305, 

4120307; 607332, 4120290; 607364, 

4120276; 607395, 4120272; 607414, 

4120266; 607434, 4120261; 607453, 

4120267; 607461, 4120254; 607462, 

4120237; 607458, 4120220; 607449, 

4120201; 607437, 4120184; 607421, 

4120162; 607397, 4120136; 607370, 

4120088; 607327, 4120023; 607297, 

4119983; 607182, 4119926; 607113, 

4119874; 607064, 4119832; 607020, 

4119802; 606938, 4119784; 606848, 

4119768; 606800, 4119732; 606822, 

4119719; 606891, 4119713; 606982, 

4119681; 607021, 4119632; 607033, 

4119550; 607049, 4119507; 607064, 

4119439; 607068, 4119404; 607099, 

4119389; 607118, 4119342; 607152, 

4119323; 607181, 4119286; 607199, 

4119244; 607188, 4119204; 607145, 

4119123; 607167, 4119087; 607256, 

4119070; 607355, 4119123; 607619, 

4119104; 607673, 4119099; 607702, 

4119117; 607733, 4119120; 607774, 

4119125; 607775, 4119165; 607814, 

4119200; 607861, 4119222; 607909, 

4119212; 607985, 4119188; 608024, 

4119217; 607998, 4119236; 608004, 

4119270; 608048, 4119275; 608100, 

4119228; 608157, 4119228; 608207, 

4119263; 608269, 4119268; 608314, 

4119280; 608363, 4119287; 608409, 

4119297; 608425, 4119321; returning to 

608447, 4119332. 

(ii) Note: Unit 7 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

(13) Unit 8: Calero Reservoir, Santa 

Clara County, California. From USGS 

1:24,000 scale quadrangles San Jose 

East, Lick Observatory, Santa Teresa 

Hills, and Morgan Hill. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 605493, 4116867; 605661, 

4116896; 605718, 4116853; 605799, 

4116844; 605856, 4116923; 605938, 

4116906; 606045, 4116752; 606122, 

4116520; 606156, 4116383; 606165, 

4116288; 606051, 4116182; 606069, 

4116127; 606132, 4116039; 606177, 

4116025; 606230, 4116083; 606269, 

4115997; 606336, 4116015; 606337, 

4115938; 606300, 4115931; 606262, 

4115861; 606326, 4115838; 606387, 

4115849; 606433, 4115829; 606519, 

4115734; 606574, 4115740; 606867, 

4115901; 606937, 4115907; 606994, 

4115890; 607043, 4115856; 607081, 

4115818; 607068, 4115755; 607090, 

4115693; 607144, 4115664; 607241, 

4115643; 607290, 4115588; 607342, 

4115554; 607159, 4115391; 607119, 

4115368; 607073, 4115389; 607047, 

4115495; 606903, 4115584; 606837, 

4115586; 606861, 4115560; 606919, 

4115549; 606944, 4115530; 606950, 

4115482; 606978, 4115469; 606996, 

4115393; 606975, 4115370; 606902, 

4115402; 606901, 4115371; 606921, 

4115339; 606904, 4115306; 606880, 

4115337; 606861, 4115296; 606876, 

4115251; 606935, 4115241; 606958, 

4115263; 606986, 4115195; 607026, 

4115199; 607027, 4115255; 607060, 

4115266; 607082, 4115207; 607089, 

4115149; 607179, 4115149; 607266, 

4115115; 607415, 4115156; 607464, 

4115136; 607555, 4115164; 607716, 

4115136; 607712, 4115003; 607657, 

4114850; 607604, 4114753; 607518, 

4114686; 607611, 4114702; 607791, 

4114919; 607826, 4114984; 607808, 

4115366; 607972, 4115293; 608186, 

4115186; 608470, 4115055; 608850, 

4114830; 608992, 4114854; 609129, 

4114812; 609117, 4115020; 608880, 

4115233; 608512, 4115397; 608059, 

4115492; 608029, 4115644; 607959, 

4115592; 607880, 4115595; 607966, 

4115726; 608052, 4115817; 608155, 

4115878; 608258, 4115908; 608358, 

4115910; 608437, 4115938; 608556, 

4115906; 608545, 4115971; 608608, 

4115990; 608682, 4115957; 608750, 

4115901; 608776, 4115906; 608815, 

4115934; 608892, 4115927; 608946, 

4115873; 608948, 4115826; 608906, 

4115731; 608967, 4115710; 609032, 

4115647; 609481, 4115100; 609477, 

4115025; 609577, 4114951; 609821, 

4114856; 609866, 4114711; 609880, 

4114582; 610030, 4114486; 610081, 

4114398; 610120, 4114330; 610159, 

4114322; 610155, 4114287; 610124, 

4114240; 610287, 4114038; 610327, 

4113965; 610319, 4113865; 610257, 

4113742; 610202, 4113705; 610079, 

4113729; 609993, 4113754; 609891, 

4113813; 609798, 4113845; 609735, 

4113885; 609737, 4113963; 609663, 

4114035; 609563, 4114088; 609524, 

4114248; 609455, 4114356; 609212, 

4114403; 609004, 4114676; 608945, 

4114439; 608774, 4114422; 608635, 

4114302; 608547, 4114164; 608453, 

4113729; 608135, 4113470; 608079, 

4113433; 608043, 4113356; 608038, 

4113230; 608012, 4113254; 607980, 

4113238; 607947, 4113270; 607907, 

4113243; 607855, 4113282; 607814, 

4113362; 607802, 4113545; 607694, 

4113606; 607526, 4113700; 607691, 

4113754; 607691, 4114069; 607465, 

4114176; 607326, 4114660; 606930, 

4114755; 606709, 4114597; 606401, 

4114641; 606250, 4114805; 605916, 

4114924; 605715, 4115195; 605293, 

4115604; 605224, 4115604; 605180, 

4115755; 605224, 4115869; 605035, 

4116101; 605042, 4116215; 605067, 

4116309; 605123, 4116366; 605229, 

4116454; 605338, 4116598; 605387, 

4116705; returning to 605493, 4116867. 

(ii) Note: Unit 8 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

(14) Unit 9: Kalana Hills, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles San Jose East, Lick 

Observatory, Santa Teresa Hills, and 

Morgan Hill. 

(i) Subunit 9A: Land bounded by the 

following UTM zone 10, NAD 1983 

coordinates (E,N): 612463, 4115364; 

612548, 4115283; 612611, 4115228; 

612581, 4115190; 612560, 4115157; 

612725, 4114962; 612697, 4114924; 

612640, 4114916; 612512, 4114806; 

612469, 4114770; 612456, 4114706; 

612331, 4114635; 612276, 4114621; 

612159, 4114668; 612036, 4114796; 

611975, 4114842; 611928, 4114901; 

611857, 4114927; 611811, 4114924; 

611806, 4115198; 611735, 4115382; 

611703, 4115487; 611772, 4115526; 

611741, 4115600; 611742, returning to 

4115605; 612028, 4115820; returning to 

612463, 4115364. 

(ii) Subunit 9B: Land bounded by the 

following UTM zone 10, NAD 1983 

coordinates (E,N): 613292, 4114458; 

613477, 4114328; 613645, 4114236; 

613859, 4114112; 613800, 4114081; 

613704, 4114080; 613628, 4114115; 

613571, 4114099; 613525, 4114035; 

613464, 4114059; 613430, 4114072; 

613389, 4114098; 613269, 4114176; 

613135, 4114270; 613043, 4114292; 

612952, 4114245; 612882, 4114296; 

612769, 4114341; 612771, 4114386; 

612807, 4114455; 612779, 4114504; 

612761, 4114557; 612827, 4114609; 

612910, 4114621; 613020, 4114550; 

613029, 4114509; 612967, 4114492; 

612953, 4114422; 612990, 4114368; 

613090, 4114360; 613112, 4114463; 

613178, 4114499; returning to 613292, 

4114458; 

(iii) Note: Unit 9 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 


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50448 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(15) Unit 10: Hale, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles San Jose East, Lick 

Observatory, Santa Teresa Hills, and 

Morgan Hill. 

(i) Unit 10: Land bounded by the 

following UTM zone 10, NAD 1983 

coordinates (E,N): 617448, 4111989; 

617422, 4111978; 617343, 4111978; 

617295, 4111947; 617252, 4111862; 

617269, 4111828; 617405, 4111774; 

617445, 4111797; 617501, 4111797; 

617512, 4111746; 617589, 4111729; 

617733, 4111766; 618083, 4111853; 

618116, 4111766; 618023, 4111705; 

617936, 4111647; 617899, 4111684; 

617764, 4111596; 617933, 4111368; 

617964, 4111303; 617953, 4111188; 

617891, 4111138; 617937, 4111083; 

617919, 4111040; 617865, 4111014; 

617798, 4111069; 617586, 4110876; 

617618, 4110838; 617504, 4110738; 

617459, 4110704; 617380, 4110673; 

617197, 4110835; 617009, 4111119; 

616981, 4111133; 616936, 4111110; 

616925, 4111147; 616908, 4111187; 

616885, 4111204; 616843, 4111232; 

616817, 4111274; 616809, 4111303; 

616781, 4111297; 616758, 4111257; 

616724, 4111221; 616713, 4111159; 

616744, 4111088; 616724, 4111060; 

616730, 4111037; 616789, 4110983; 

616702, 4110933; 616668, 4110952; 

616620, 4110952; 616611, 4110901; 

616436, 4111062; 616394, 4111037; 

616410, 4110989; 616472, 4110988; 

616532, 4110930; 616523, 4110872; 

616555, 4110831; 616077, 4110537; 

616073, 4110327; 615914, 4110402; 

615846, 4110431; 615912, 4110524; 

615761, 4110576; 615745, 4110646; 

615715, 4110728; 615645, 4110790; 

615684, 4110906; 615779, 4110867; 

615779, 4110825; 615918, 4110725; 

616038, 4110856; 615936, 4110930; 

615947, 4111077; 615894, 4111105; 

615830, 4111216; 615902, 4111306; 

615866, 4111429; 615933, 4111449; 

616044, 4111449; 616147, 4111428; 

616225, 4111410; 616275, 4111430; 

616313, 4111483; 616368, 4111489; 

616399, 4111520; 616394, 4111579; 

616380, 4111625; 616430, 4111650; 

616484, 4111622; 616498, 4111585; 

616555, 4111562; 616671, 4111591; 

616659, 4111653; 616685, 4111715; 

616741, 4111780; 616846, 4111829; 

616677, 4112120; 616760, 4112261; 

616792, 4112343; 617011, 4112356; 

617160, 4112394; 617286, 4112306; 

617433, 4112045; returning to 617448, 

4111989 . 

(ii) Note: Unit 10 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

(16) Unit 11: Bear Ranch, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangle Gilroy. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 628304, 4108774; 628402, 

4108819; 628507, 4108797; 628590, 

4108729; 628635, 4108675; 628659, 

4108564; 628747, 4108397; 628931, 

4108012; 629104, 4107674; 629171, 

4107133; 629022, 4107043; 628875, 

4107022; 628732, 4107075; 628575, 

4107128; 628449, 4107072; 628322, 

4107074; 628234, 4107094; 628173, 

4107173; 628166, 4107286; 628210, 

4107426; 628327, 4107650; 628375, 

4107703; 628458, 4107736; 628368, 

4107898; 628263, 4108172; 628208, 

4108414; returning to 628304, 4108774. 

(ii) Note: Map of Unit 11 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50449 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.006</GPH>
50450 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(17) Unit 12: San Martin, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles Mt. Madonna and 

Gilroy. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 622150, 4104262; 622178, 

4104216; 622192, 4104170; 622217, 

4104195; 622241, 4104226; 622274, 

4104226; 622296, 4104208; 622309, 

4104171; 622302, 4104120; 622340, 

4104110; 622347, 4104088; 622336, 

4104047; 622334, 4103984; 622320, 

4103948; 622317, 4103898; 622330, 

4103845; 622404, 4103809; 622421, 

4103769; 622421, 4103689; 622441, 

4103649; 622487, 4103631; 622538, 

4103599; 622557, 4103529; 622591, 

4103461; 622575, 4103406; 622538, 

4103358; 622441, 4103346; 622399, 

4103363; 622352, 4103322; 622274, 

4103300; 622206, 4103304; 622098, 

4103341; 622020, 4103370; 621920, 

4103382; 621843, 4103390; 621812, 

4103362; 621779, 4103365; 621739, 

4103372; 621700, 4103404; 621682, 

4103449; 621705, 4103496; 621667, 

4103560; 621569, 4103489; 621509, 

4103489; 621463, 4103477; 621464, 

4103459; 621411, 4103467; 621348, 

4103472; 621288, 4103477; 621223, 

4103476; 621183, 4103476; 621127, 

4103476; 621079, 4103490; 621030, 

4103508; 620988, 4103525; 620973, 

4103571; 620996, 4103623; 621025, 

4103666; 621055, 4103695; 621076, 

4103707; 621079, 4103733; 621087, 

4103764; 621112, 4103805; 621046, 

4103796; 621009, 4103805; 620979, 

4103791; 620922, 4103774; 620887, 

4103775; 620871, 4103811; 620845, 

4103873; 620806, 4103922; 620751, 

4103944; 620702, 4103984; 620679, 

4103961; 620627, 4103961; 620593, 

4103979; 620591, 4104020; 620568, 

4104053; 620542, 4104032; 620509, 

4104030; 620482, 4104039; 620450, 

4104073; 620393, 4104116; 620330, 

4104174; 620283, 4104200; 620255, 

4104240; 620230, 4104262; 620197, 

4104288; 620191, 4104325; 620193, 

4104362; 620203, 4104399; 620176, 

4104412; 620126, 4104472; 620132, 

4104499; 620211, 4104578; 620245, 

4104578; 620329, 4104574; 620440, 

4104541; 620510, 4104492; 620543, 

4104480; 620529, 4104405; 620612, 

4104386; 620646, 4104431; 620657, 

4104489; 620672, 4104509; 620728, 

4104541; 620794, 4104556; 620852, 

4104539; 620909, 4104525; 620931, 

4104568; 620942, 4104598; 620946, 

4104627; 620968, 4104627; 620988, 

4104586; 621013, 4104556; 621034, 

4104566; 621046, 4104621; 621098, 

4104634; 621083, 4104537; 621176, 

4104528; 621262, 4104540; 621334, 

4104549; 621398, 4104575; 621488, 

4104622; 621559, 4104617; 621598, 

4104563; 621688, 4104533; 621739, 

4104536; 621811, 4104464; 621836, 

4104417; 621908, 4104391; 621951, 

4104417; 622007, 4104440; 622132, 

4104423; 622160, 4104403; 622153, 

4104371; 622118, 4104356; 622033, 

4104350; 622004, 4104340; 621974, 

4104326; 621951, 4104304; 621969, 

4104286; 621996, 4104293; 622032, 

4104294; 622060, 4104274; 622115, 

4104272; returning to 622150, 4104262. 

(ii) Note: Map of Unit 12 for Bay 

checkerspot butterfly follows: 

BILLING CODE 4310–55–S 


sroberts on PROD1PC76 with RULES
Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 50451 

BILLING CODE 4310–55–C 


sroberts on PROD1PC76 with RULESER26AU08.007</GPH>
50452 Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations 

(18) Unit 13: Kirby, Santa Clara 

County, California. From USGS 1:24,000 

scale quadrangles San Jose East, Lick 

Observatory, Santa Teresa Hills, and 

Morgan Hill. 

(i) Land bounded by the following 

UTM zone 10, NAD 1983 coordinates 

(E,N): 614073, 4122412; 613927, 

4122313; 613818, 4122194; 613722, 

4121982; 613609, 4121926; 613463, 

4121895; 613322, 4121923; 613199, 

4122005; 613063, 4121982; 612938, 

4122012; 612845, 4121942; 612809, 

4121823; 612723, 4121727; 612574, 

4121711; 612435, 4121734; 612295, 

4121716; 612154, 4121723; 612079, 

4121699; 612017, 4121720; 611996, 

4121655; 611902, 4121653; 611790, 

4121695; 611662, 4121642; 611579, 

4121554; 611512, 4121447; 611422, 

4121445; 611365, 4121419; 611310, 

4121420; 611247, 4121377; 610975, 

4121590; 610770, 4121774; 610611, 

4121899; 610472, 4122085; 610310, 

4122006; 610106, 4122145; 610077, 

4122227; 610126, 4122316; 610217, 

4122395; 610179, 4122447; 610133, 

4122430; 610089, 4122512; 610125, 

4122559; 610156, 4122607; 610157, 

4122653; 610128, 4122660; 610058, 

4122641; 610016, 4122607; 609977, 

4122674; 610091, 4122763; 610187, 

4122847; 610220, 4122921; 610249, 

4122977; 610374, 4123102; 610254, 

4123181; 610015, 4123335; 609613, 

4123583; 609641, 4123630; 609399, 

4123790; 609324, 4123843; 609182, 

4124041; 608934, 4123924; 608736, 

4124027; 608538, 4124145; 608423, 

4124256; 608167, 4124471; 608065, 

4124633; 608059, 4124666; 607803, 

4124871; 607677, 4124973; 607615, 

4125109; 607637, 4125224; 607756, 

4125351; 607593, 4125474; 607351, 

4125490; 607272, 4125663; 607018, 

4125820; 606980, 4125845; 606948, 

4125876; 606896, 4125972; 606890, 

4125996; 606845, 4125998; 606796, 

4126045; 606753, 4126055; 606663, 

4126127; 606595, 4126178; 606463, 

4126353; 606314, 4126287; 606282, 

4126331; 606153, 4126428; 605939, 

4126505; 605841, 4126533; 605785, 

4126693; 605832, 4126844; 605701, 

4126851; 605621, 4127118; 605715, 

4127161; 605847, 4127159; 605992, 

4127130; 606076, 4127058; 606215, 

4127099; 606422, 4127010; 606465, 

4126897; 606699, 4126796; 606886, 

4126695; 607019, 4126736; 607190, 

4126796; 607356, 4126935; 607437, 

4127065; 607306, 4127251; 607149, 

4127421; 607062, 4127440; 606910, 

4127537; 606714, 4127727; 606521, 

4127943; 606345, 4128015; 606227, 

4128006; 606179, 4127924; 606131, 

4127779; 606097, 4127827; 606067, 

4127868; 605982, 4127883; 605953, 

4128027; 605857, 4127996; 605761, 

4128001; 605703, 4128063; 605662, 

4128160; 605702, 4128211; 605770, 

4128251; 605842, 4128289; 605912, 

4128287; 605946, 4128220; 605992, 

4128138; 606059, 4128152; 606148, 

4128174; 606210, 4128152; 606324, 

4128056; 606410, 4128049; 606321, 

4128171; 606343, 4128210; 606614, 

4128290; 606611, 4128519; 606706, 

4128535; 606802, 4128525; 607015, 

4128424; 607079, 4128412; 607069, 

4128316; 607125, 4128227; 607190, 

4128215; 607202, 4128263; 607252, 

4128252; 606865, 4127849; 607067, 

4127789; 607267, 4127710; 607475, 

4127729; 607713, 4127722; 607817, 

4127626; 607733, 4127426; 607803, 

4127314; 607825, 4127248; 607762, 

4127173; 607740, 4127113; 607808, 

4127063; 607894, 4127046; 608043, 

4127019; 608116, 4126921; 608123, 

4126707; 608000, 4126634; 607880, 

4126543; 607769, 4126507; 607654, 

4126497; 607668, 4126413; 607779, 

4126408; 607805, 4126324; 608058, 

4126129; 608255, 4125992; 608610, 

4125722; 608893, 4125417; 609482, 

4125417; 609838, 4125398; 610196, 

4125396; 610302, 4125557; 610370, 

4125506; 610487, 4125492; 610584, 

4125439; 610692, 4125442; 610769, 

4125405; 610827, 4125316; 610877, 

4125249; 610937, 4125251; 610947, 

4125345; 610759, 4125562; 610815, 

4125701; 610858, 4125797; 610945, 

4125841; 611101, 4125858; 611199, 

4125833; 611308, 4125853; 611356, 

4125884; 611424, 4125805; 611461, 

4125744; 611542, 4125723; 611602, 

4125671; 611673, 4125610; 611808, 

4125456; 611970, 4125331; 612147, 

4125249; 612322, 4125103; 612539, 

4124931; 612515, 4124823; 612590, 

4124756; 612648, 4124664; 612753, 

4124575; 612773, 4124506; 612879, 

4124335; 612972, 4124219; 613073, 

4124178; 613129, 4124085; 613251, 

4123917; 613206, 4123339; 613193, 

4122893; 613280, 4122832; 613351, 

4122715; 613426, 4122657; 613489, 

4122657; 613563, 4122662; 613669, 

4122607; 613741, 4122596; 614073, 

4122412. 

(ii) Note: Unit 13 for Bay checkerspot 

butterfly is depicted on the map in 

paragraph (10)(ii) of this entry. 

Dated: August 13, 2008 

David Verhey 

Acting Assistant Secretary for Fish and 

Wildlife and Parks 

[FR Doc. E8–19195 Filed 8–25–08; 8:45 am] 

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