61936 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R8–ES–2007–0008; 92210–1117– 

0000–FY08 B4] 

RIN 1018–AV07 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for the San Bernardino 

Kangaroo Rat (Dipodomys merriami 

parvus) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating final revised critical habitat 

for the San Bernardino kangaroo rat 

(Dipodomys merriami parvus) under the 

Endangered Species Act of 1973, as 

amended (Act). Approximately 7,779 

acres (ac) (3,148 hectares (ha)) of habitat 

in San Bernardino and Riverside 

Counties, California, are being 

designated as critical habitat for the San 

Bernardino kangaroo rat. This final 

revised designation constitutes a 

reduction of approximately 25,516 ac 

(10,326 ha) from the 2002 designation of 

critical habitat for the San Bernardino 

kangaroo rat. 

DATES: This rule becomes effective on 

November 17, 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/carlsbad/. 

Supporting documentation we used in 

preparing this final rule will be 

available for public inspection, by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011; telephone 760– 

431–9440; facsimile 760–431–5901. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

If you use a telecommunications device 

for the deaf (TDD), call the Federal 

Information Relay Service (FIRS) at 

800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

designation of critical habitat for the 

San Bernardino kangaroo rat in this 

final rule. For more information on the 

taxonomy, biology, and ecology of the 

San Bernardino kangaroo rat, refer to the 

final listing rule published in the 

Federal Register on September 24, 1998 

(63 FR 51005), the original final critical 

habitat rule published in the Federal 

Register on April 23, 2002 (67 FR 

19812), the proposed rule to revise 

critical habitat published in the Federal 

Register on June 19, 2007 (72 FR 33808), 

and the April 16, 2008, notice of 

availability of the draft economic 

analysis (DEA) and changes to the 

proposed rule (73 FR 20581). 

Subspecies Description, Life History, 

Distribution, Ecology, and Habitat 

No new substantial information 

pertaining to the subspecies description, 

life history, distribution, ecology, or 

habitat of the San Bernardino kangaroo 

rat was received following the 2007 

proposed rule to revise critical habitat 

for this subspecies. Therefore, please 

refer to the final listing rule published 

in the Federal Register on September 

24, 1998 (63 FR 51005), and the 

proposed rule to revise critical habitat 

published in the Federal Register on 

June 19, 2007 (72 FR 33808), for a 

discussion of the subspecies’ 

description, life history, distribution, 

ecology, and habitat. 

Previous Federal Actions 

As discussed in the proposed rule to 

revise critical habitat for this 

subspecies, the Service agreed, as part of 

a settlement agreement, to submit to the 

Federal Register a proposal to revise 

critical habitat, if prudent, on or before 

June 1, 2007, and a final rule by June 1, 

2008, which was later extended to 

October 1, 2008. We published a 

proposed rule to revise critical habitat 

in the Federal Register on June 19, 2007 

(72 FR 33808), and announced the first 

public comment period on the proposed 

rule. On December 11, 2007 (72 FR 

70284), we opened a second public 

comment period on the proposed rule 

and announced our intention to hold 

two public hearings on the proposed 

rule that were held in San Bernardino, 

California, on January 10, 2008. On 

April 16, 2008, we published in the 

Federal Register a notice of availability 

(NOA) announcing the availability of 

the DEA (dated February 6, 2008), 

opening the third public comment 

period on the proposed rule to revise 

critical habitat, and announcing changes 

to the proposed rule (73 FR 20581). In 

addition, on July 29, 2008, we published 

in the Federal Register an NOA 

announcing the availability of an 

Addendum to the Economic Analysis, 

opening a fourth public comment period 

(73 FR 43910). This final rule completes 

our obligations under the March 23, 

2006, settlement agreement regarding 

the subject subspecies. For a discussion 

of additional information on previous 

Federal actions concerning the San 

Bernardino kangaroo rat, refer to the 

final listing rule published in the 

Federal Register on September 24, 1998 

(63 FR 51005), and the final designation 

of critical habitat published in the 

Federal Register on April 23, 2002 (67 

FR 19812). 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed rule to revise 

critical habitat for the San Bernardino 

kangaroo rat during four comment 

periods. The first comment period 

opened June 19, 2007 (72 FR 33808), 

associated with the publication of the 

proposed rule, and closed August 20, 

2007. We received one request for a 

public hearing during this comment 

period. The second comment period 

opened December 11, 2007 (72 FR 

70284), associated with the publication 

of a notice of public hearings that were 

held January 10, 2008, and closed 

January 25, 2008. The third comment 

period opened April 16, 2008 (73 FR 

20581), associated with the notice of 

availability of the DEA, and closed May 

16, 2008. The fourth comment period 

opened July 29, 2008 (73 FR 43910), 

associated with the availability of an 

addendum to the economic analysis, 

and closed August 13, 2008. During 

these four public comment periods, we 

contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule to revise critical 

habitat for this subspecies and the 

associated DEA. 

During the first comment period, we 

received 12 public comments directly 

addressing the proposed revision of 

critical habitat: 1 from a Federal agency, 

1 from a local government, 9 from 

organizations, and 1 from an individual. 

During the second comment period and 

the January 10, 2008, public hearings, 

we received 29 comments directly 

addressing the proposed revision of 

critical habitat for this subspecies: 4 

from local governments, 6 from 

organizations, and 19 from individuals. 

During the third comment period, we 

received 3 comments directly 

addressing the proposed revision of 

critical habitat for this subspecies and/ 

or the DEA: 1 from a Federal agency and 

2 from organizations. During the fourth 

comment period, we received 5 

comments directly addressing the 

proposed revision of critical habitat for 


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the San Bernardino kangaroo rat and/or 

the DEA: 3 from organizations, and 2 

from individuals. 

Peer Review 

In accordance with our policy on peer 

review in Act (16 U.S.C. 1531 et seq.) 

activities, published on July 1, 1994 (59 

FR 34270), we solicited expert opinions 

from five knowledgeable individuals 

with scientific expertise that included 

familiarity with the subspecies, the 

geographic region in which it occurs, 

and conservation biology principles. We 

received responses from two of the peer 

reviewers. The peer reviewers generally 

concurred with our methods and 

conclusions and indicated that the 

Service did a thorough job of 

delineating critical habitat using the 

best available scientific information. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding the designation of 

critical habitat for the San Bernardino 

kangaroo rat. All public comments are 

addressed in the following summary 

and incorporated into the final rule as 

appropriate. 

Peer Reviewer Comments 

Comment 1: One peer reviewer 

commented that in the 2007 proposed 

rule to revise critical habitat, the 

Service’s non-inclusion of areas 

designated as critical habitat in 2002 

was not supported in the document 

with empirical data or some type of 

population viability modeling. 

Our Response: Our revised critical 

habitat designation is substantially 

smaller than the 2002 critical habitat 

designation. Given the new information 

that became available to us in the five 

years since the previous designation, we 

find that we erroneously designated 

some areas. Areas previously designated 

in 2002 but not designated in this 

revised rule do not meet the definition 

of critical habitat. The changes in this 

rule are due to several factors. Better 

biological information allowed us to 

more specifically define primary 

constituent elements (PCEs) for this 

species, and site visits in December 

2006 and January 2007 allowed us to 

more precisely define the areas that 

meet the definition of critical habitat on 

the ground. This allowed us to remove 

areas that do not meet our criteria for 

identifying the physical or biological 

features that are essential to the 

conservation of the species. The 2002 

critical habitat designation included 

areas in which few occurrences were 

recorded. Such areas of low-density 

occupation or sporadic occupancy were 

removed from the proposed revised 

designation because they do not support 

core populations (i.e., areas where the 

subspecies has been repeatedly detected 

through live trapping). Finally, we 

employed refined mapping techniques 

in the current revision to more precisely 

map areas that contain PCEs. This more 

refined approach allowed us to remove 

areas that do not meet the definition of 

critical habitat. See the ‘‘Summary of 

Changes From the 2002 Critical Habitat 

Designation’’ and ‘‘Criteria Used To 

Identify Critical Habitat’’ sections of this 

final rule for more information. 

We based the proposed revision of 

critical habitat for the San Bernardino 

kangaroo rat on the best available 

scientific and commercial data 

including peer-reviewed published 

literature, gray literature (non-published 

or non-peer-reviewed survey or research 

reports), survey information, Geographic 

Information System coverage data, and 

site visits with subspecies experts. We 

delineated proposed critical habitat 

using criteria based on the biological 

needs of the subspecies according to the 

best available science. Application of 

these criteria (see ‘‘Criteria Used To 

Identify Critical Habitat’’ section of this 

final rule) results in the determination 

of the physical and biological features 

that are essential to the conservation of 

this subspecies, as identified by the 

PCEs in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the subspecies. The 

areas proposed as critical habitat: (1) 

Support core populations that are 

considered necessary for conservation of 

the subspecies including areas 

demographically disconnected from the 

largest populations, but which may be 

important for the long-term 

conservation of the subspecies; and (2) 

include non-degraded alluvial fans, 

washes, floodplains, and adjacent 

upland areas with appropriate soils and 

vegetation. At this time, a population 

viability analysis has not been 

completed for the San Bernardino 

kangaroo rat. When delineating critical 

habitat for the San Bernardino kangaroo 

rat, we used the best available scientific 

information to determine those areas 

containing the features essential to its 

conservation. 

Comment 2: One peer reviewer 

commented on the reduction of critical 

habitat from what was designated in 

2002. The peer reviewer stated that the 

2007 proposed rule to revise critical 

habitat explains that this reduction is a 

result of additional knowledge about 

specific habitat requirements and 

occurrence data. The peer reviewer 

further questioned if the 2002 critical 

habitat designation was too superficial 

as a result of being rushed, or if the 2007 

proposed revision to the critical habitat 

designation is overly conservative. The 

peer reviewer also suggested that we 

provide additional rationale for not 

designating areas with low population 

density or low habitat quality. 

Our Response: The Act defines 

critical habitat as (1) the specific areas 

within the geographical area occupied 

by the species at the time it is listed on 

which are found those physical or 

biological features (a) essential to the 

conservation of the species, and (b) 

which may require special management 

considerations or protection, and (2) 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. The 

reduction in total area from what was 

designated in 2002 is primarily the 

result of: (1) Exclusions of habitat under 

section 4(b)(2) of the Act; (2) revision of 

the primary constituent elements: (3) 

revision of our criteria used to identify 

critical habitat; and (4) removal of lands 

within the geographical area occupied 

by the subspecies at the time it was 

listed that do not contain the physical 

or biological features as identified by 

the PCEs in the appropriate quantity 

and spatial arrangement essential to the 

conservation of the subspecies. 

In 2002, we used the best available 

scientific information at that time to 

delineate critical habitat and do not 

consider the 2002 designation to be 

‘‘superficial.’’ However, as 

acknowledged by the peer reviewer, we 

have significant additional occurrence 

data and knowledge about specific 

habitat requirements of this subspecies 

that was not known when we first 

designated critical habitat for the San 

Bernardino kangaroo rat in 2002. We 

utilized this data to appropriately revise 

the primary constituent elements and 

criteria used to identify critical habitat 

consistent with the statutory obligations 

of the Act. In addition, since 2002, case 

law has developed that has helped to 

further our understanding of the 

statutory obligations of the Act and the 

definition of critical habitat (e.g., The 

Cape Hatteras Access Preservation 

Alliance v. U.S. Dep’t of the Interior, 

344 F. Supp. 2d 108 (D.D.C. 2004); 

Home Builders Ass’n of N. Cal. v. U.S. 

Fish and Wildlife Service, U.S. Dist. 

LEXIS 80255 (E.D. Cal. 2006); and 

Arizona Cattle Growers’ Ass’n v. 

Kempthorne, 534 F. Supp. 2d 1013 (D. 

Ariz. 2008)). Thus, we have refined our 

approach to this critical habitat 

designation to insure compliance with 

the Act, including the identification of 

the geographical areas occupied by the 

subspecies at the time of listing, the 


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identification of physical or biological 

features (and primary constituent 

elements) essential to the conservation 

of the subspecies, determination of any 

areas outside the geographical area 

occupied by the subspecies at the time 

of listing that are essential for the 

conservation of the subspecies, and 

appropriate exclusions under section 

4(b)(2) of the Act. A complete 

discussion of how data collected since 

the 2002 designation was utilized to 

refine the proposed designation can be 

found in the ‘‘Summary of Changes 

From the 2002 Critical Habitat 

Designation’’ and ‘‘Summary of Changes 

From the 2007 Proposed Rule To Revise 

Critical Habitat’’ sections of this final 

rule. 

As discussed in the ‘‘Criteria Used To 

Identify Critical Habitat’’ section of this 

final rule, we delineated critical habitat 

for the San Bernardino kangaroo rat 

using the following criteria: (1) Areas 

occupied by the subspecies at the time 

of listing, and currently occupied, 

within the historical range of the 

subspecies; (2) areas retaining fluvial 

dynamics containing one or more of the 

PCEs for the subspecies; (3) areas 

supporting a core population of the 

subspecies; and (4) areas 

demographically disconnected from the 

largest populations, but which may be 

important for the long-term recovery of 

the subspecies. Application of these 

criteria results in the determination of 

the physical and biological features that 

are essential to the conservation of this 

subspecies, identified as the subspecies’ 

PCEs laid out in the appropriate 

quantity and spatial arrangement. Thus, 

not all areas supporting the identified 

PCEs will meet the definition of critical 

habitat. Specifically, as noted by the 

commenter, some areas occupied at low 

densities are not included in the final 

revised critical habitat designation. 

Areas occupied at low densities are not 

likely to contribute to recovery of the 

subspecies, and we do not have 

information suggesting that the areas in 

question support core populations or 

information suggesting these areas 

would be capable of supporting a core 

population in the near future. 

Conservation (i.e., recovery) is 

defined in section 3 of the Act as the 

‘‘use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary.’’ In accordance 

with section 4(a)(1) of the Act, we 

determine if any species is an 

endangered or threatened species (or 

revise its listed status) because of any of 

the five threat factors identified in the 

Act (i.e., (A) present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence). Therefore, conservation, or 

recovery, is achieved when a five factor 

analysis indicates that current and 

future threats have been minimized to 

an extent that the species is no longer 

in danger of extinction or likely to 

become endangered in the foreseeable 

future. Recovery is a dynamic process 

requiring adaptive management of 

threats and there are many paths to 

accomplishing recovery of a species. We 

believe that the lands identified in this 

rule as meeting the definition of critical 

habitat are adequate to ensure the 

conservation of the San Bernardino 

kangaroo rat throughout its extant range 

based on the best available scientific 

information at this time. 

We recognize that some efforts that 

positively contribute to the conservation 

of this subspecies may occur outside the 

boundaries of this final designation; 

however, we do not believe that this 

designation is ‘‘conservative.’’ Rather, 

our proposed designation in 

combination with the NOA, which 

announced the addition of areas to the 

proposed designation, and this final 

designation accurately describe all 

specific areas meeting the statutory 

definition of critical habitat for the San 

Bernardino kangaroo rat. See the 

‘‘Summary of Changes From the 2002 

Critical Habitat Designation’’ and 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat’’ sections of this final rule for 

more information. 

Comment 3: One peer reviewer 

commented that the Service’s focus on 

core populations as a primary criterion 

for designating critical habitat is logical 

and appropriate. The reviewer further 

commented that while the core 

populations may be necessary for 

conservation of the San Bernardino 

kangaroo rat, they may not be sufficient 

in area or connectivity to achieve a 

reasonable probability of persistence in 

the face of periodic flooding and 

drought. Another peer reviewer 

commented that the proposed revision 

to critical habitat includes dispersal 

corridors and habitat connectivity 

necessary for the subspecies. 

Our Response: In this final revised 

designation we focused primarily on 

core populations in undisturbed habitat 

in the Santa Ana River, Lytle/Cajon 

Creeks, and the San Jacinto River 

washes. We believe that protecting these 

three largest core populations is 

necessary for the conservation of the 

San Bernardino kangaroo rat. In 

response to this and other comments, 

we revised our criteria to also capture 

occupied areas demographically 

disconnected from the three largest 

populations, but which may be 

important for the long-term 

conservation of the subspecies (for a 

detailed discussion see ‘‘Criteria Used 

To Identify Critical Habitat’’ section of 

this final rule). We then re-evaluated the 

proposed critical habitat boundaries and 

included in the designation additional 

areas in Mill Creek, Plunge Creek, Cable 

Creek wash, and Bautista Creek. We are 

not designating small, isolated areas of 

degraded habitat or areas devoid of 

fluvial processes because such areas 

likely only support unsustainable 

populations that would not contribute 

to the recovery of the subspecies. We 

believe that with these revisions, we 

included sufficient lowland and upland 

alluvial sage scrub habitat within a 

sufficient number of critical habitat 

units to ensure connectivity and 

persistence of the subspecies following 

periodic flooding and drought. 

Comment 4: One peer reviewer had 

concerns about excluding areas from the 

critical habitat designation that are 

protected by a management or 

conservation agreement, particularly 

because the proposed exclusion of those 

areas increases the degree to which 

critical habitat in all three units is 

fragmented. This reviewer questioned 

whether proposed exclusions render the 

remaining critical habitat areas 

sufficient for the subspecies’ recovery if 

management actions on the excluded 

areas fail to preserve their value to the 

subspecies. Another peer reviewer 

agreed with the logic of excluding from 

the final revised critical habitat 

designation areas that are covered by 

management plans that benefit the San 

Bernardino kangaroo rat, but the 

reviewer questioned whether 

monitoring would be conducted or 

reports would be required ensuring 

compliance with these plans, or 

whether the plans are having the 

desired effects. 

Our Response: Section 4(b)(2) of the 

Act directs the Secretary to designate 

critical habitat on the basis of the best 

scientific data available and after taking 

into consideration the economic 

impacts, national security impacts, and 

any other relevant impacts of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 


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as critical habitat, unless the failure to 

designate an area as critical habitat will 

result in the extinction of the species. 

The Service recognizes that 80 percent 

of federally listed species occur either 

partially or solely on private lands 

(Crouse et al. 2002) and we will only 

achieve recovery of federally listed 

species with the cooperation of private 

landowners. As discussed in the 

‘‘Conservation Partnerships on NonFederal Lands’’ section below, we 

believe that designation of critical 

habitat on private lands can negatively 

impact the working relationships and 

conservation partnerships we have 

formed with private landowners. 

In making the Woolly-Star Preserve 

Area (WSPA) Management Plans, the 

Former Norton Air Force Base 

Conservation Management Plan (CMP), 

the Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP), and the Cajon Creek Habitat 

Conservation Management Area Habitat 

Enhancement and Management Plan 

(Cajon Creek HCMA HEMP) exclusions, 

we evaluated the benefits of designating 

non-Federal lands that may not have a 

Federal nexus for consultation while 

considering if our existing partnerships 

have, or will, result in greater 

conservation benefits to the San 

Bernardino kangaroo rat and its habitat 

than would likely result from 

consultation on a designation. We 

balanced the benefits of inclusion 

against the benefits of exclusion (i.e., 

the benefits of preserving partnerships 

and encouraging development of 

additional HCPs and other conservation 

plans in the future). All areas excluded 

under 4(b)(2) that have completed 

habitat conservation plans (HCPs) or 

other Service-approved management 

plans receive long-term protection and 

conservation that provides equivalent or 

greater conservation benefit to the San 

Bernardino kangaroo rat than would 

likely result from including these areas 

in the designation, and the exclusion of 

lands covered by these plans will not 

jeopardize the continued existence of 

the subspecies. The conservation 

objectives in these plans for the San 

Bernardino kangaroo rat, and the 

implementation status of these plans to 

date, are discussed in the ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’ 

section below. The conservation and 

management of San Bernardino 

kangaroo rat habitat as described in 

these management plans have reduced 

and will continue to remove or reduce 

known threats to the subspecies and its 

habitat, contributing to the survival and 

recovery of this subspecies. We believe 

the exclusions we made in this final 

revised rule are legally supported under 

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

scientifically justified. 

The exclusion of critical habitat does 

not dismiss or lessen the value of these 

areas to the overall conservation of this 

subspecies. Rather, we believe that the 

judicious exclusion of specific areas of 

non-Federal lands from critical habitat 

designations, where we have developed 

close partnerships with non-Federal 

land owners that resulted in the 

development of HCPs or other voluntary 

conservation plans, can contribute to 

species recovery and provide a superior 

level of conservation than the 

designation of critical habitat alone. As 

described in detail in the ‘‘Exclusions 

Under Section 4(b)(2) of the Act’’ 

section below, we determined that the 

benefits of excluding areas covered by 

the WSPA Management Plans, the 

Former Norton Air Force Base CMP, the 

Western Riverside County MSHCP, and 

the Cajon Creek HCMA HEMP outweigh 

the benefits of designating these lands, 

and that these exclusions will not result 

in the extinction of the San Bernardino 

kangaroo rat. Surveys and monitoring 

will continue to be required for areas 

excluded based on completed 

management plans to ensure they are 

effective (see ‘‘Areas Considered for 

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

Act’’ section below for more 

information). 

Comment 5: One peer reviewer 

discussed our identification of PCEs for 

the San Bernardino kangaroo rat, and 

specifically agreed that the PCEs are 

based on the best available science, and 

that the identified PCEs appropriately 

provide for the conservation of the 

subspecies. 

Our Response: The description of the 

PCEs for the San Bernardino kangaroo 

rat is based on the best available 

scientific and commercial data 

regarding the subspecies, including a 

compilation of data from peer-reviewed, 

published literature; unpublished or 

non-peer reviewed survey and research 

reports; and opinions of biologists 

knowledgeable about the San 

Bernardino kangaroo rat and its habitat. 

Consequently, the PCEs, as described in 

this final rule, represent our best 

assessment of what habitat components, 

in the appropriate quantity and spatial 

arrangement, are essential to the 

conservation of the subspecies. 

Public Comments 

Comments Related to Criteria Used To 

Identify Critical Habitat 

Comment 6: Two commenters stated 

that the proposed rule is flawed because 

it fails to include several significant 

areas of occupied habitat previously 

designated as critical habitat in 2002 

that support one or more of the PCEs: 

(1) Three areas in the Santa Ana River 

wash; (2) the Etiwanda Fan; (3) four 

areas in Cajon/Lytle Creeks; and (4) two 

areas in the San Jacinto River. The 

commenters stated that the Service 

provided no data to support the 

conclusion that these areas are not 

occupied by the subspecies (e.g., 

trapping data) or do not contain the 

PCEs. They further stated that several 

areas (i.e., Etiwanda Fan, areas in Cajon/ 

Lytle Creeks) that were not included in 

the proposed designation are currently 

occupied to some extent and, therefore, 

must contain the PCEs required by the 

species. One commenter stated that all 

populations inclusive of peripheral 

populations are essential for recovery 

and that not including all occupied 

areas as critical habitat will continue to 

fragment and drive the species closer to 

the brink of extinction. 

Another commenter stated that 

according to a review of occurrence 

information for the San Bernardino 

kangaroo rat and habitat assessments 

conducted in 2007, the following areas 

are currently occupied by the 

subspecies and contain the PCEs, and 

therefore, should have been included in 

the proposed designation: (1) Three 

areas along Plunge Creek in the Santa 

Ana River watershed; (2) one area in the 

Santa Ana River; (3) one area in Lytle 

Creek; (4) Cable Creek in the Lytle/Cajon 

Creeks watershed; (5) Bautista Creek in 

the San Jacinto River watershed; and (6) 

the Etiwanda Fan. Several commenters 

also called for the reevaluation of 

Plunge Creek, the Santa Ana River in 

Redlands, Lytle Creek near the 210 

Freeway, Cable Creek, and the Etiwanda 

Fan. 

Certain areas that were not included 

in the June 19, 2007, proposed revision 

to critical habitat (72 FR 33808) were 

commented on more frequently than 

others mentioned above: Specifically, 

Plunge Creek, Mill Creek, the Cable 

Creek wash, and Bautista Creek. 

Multiple comments received during the 

first two comment periods and the 

public hearings, including comments 

received from biologists familiar with 

the San Bernardino kangaroo rat, 

indicated the importance of these areas 

as confirmed occupied habitat 

containing the PCEs, and which retain 

fluvial input and that may be necessary 

for the long-term conservation of the 

subspecies. 

Our Response: For a detailed 

discussion of the areas previously 

designated as critical habitat that are not 

included in this revised designation, see 

the ‘‘Summary of Changes From the 


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2002 Critical Habitat Designation’’ 

section of this final rule. Under section 

3(5)(C) of the Act, critical habitat shall 

not include the entire geographical area 

which can be occupied by the species 

unless otherwise determined by the 

Secretary. 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. In 

developing the proposed rule to revise 

critical habitat, we considered the 

geographical area occupied by the 

subspecies at the time of listing, and 

within that broad geographical area, 

identified those areas that, based on the 

best available scientific and commercial 

data, contain the physical and biological 

features essential to the subspecies’ 

conservation. We believe that our 

proposed designation, including 

changes to the proposed designation 

outlined in the April 16, 2008, NOA (73 

FR 20581), and this final designation 

accurately describe all areas meeting the 

definition of critical habitat for the San 

Bernardino kangaroo rat. 

As discussed in the proposed rule to 

revise critical habitat and the April 16, 

2008, NOA announcing changes to the 

proposed rule, we identified critical 

habitat for this subspecies based on 

several criteria. Application of these 

criteria (see ‘‘Criteria Used To Identify 

Critical Habitat’’ section of this final 

rule) results in the determination of the 

physical and biological features that are 

essential to the conservation of this 

subspecies, as identified by the PCEs in 

the appropriate quantity and spatial 

arrangement essential to the 

conservation of the subspecies. Thus, 

not all areas supporting the identified 

PCEs will meet the definition of critical 

habitat. The areas designated as critical 

habitat (1) support core populations that 

are considered necessary for 

conservation of the subspecies, 

including areas demographically 

disconnected from the largest 

populations that may be important for 

the long-term conservation of the 

subspecies; and (2) include nondegraded alluvial fans, washes, 

floodplains, and adjacent upland areas 

with appropriate soils and vegetation. 

We recognize that our designation 

does not encompass all known 

occurrences of this subspecies as noted 

by the commenters. Small, isolated 

areas of degraded habitat or areas 

devoid of fluvial processes are likely to 

only support unsustainable populations 

that would not contribute to the 

recovery of the subspecies. Although we 

are not designating all known 

occurrences of the San Bernardino 

kangaroo rat, we believe the criteria we 

used to identify areas that contain the 

features essential to the conservation of 

the subspecies, and which are included 

in the final revised critical habitat 

designation, are adequate to ensure the 

conservation of the subspecies 

throughout its extant range. Species that 

are protected across their ranges are 

expected to have lower likelihoods of 

extinction (Soule and Simberloff 1986, 

pp. 32–35; Scott et al. 2001, pp. 1297– 

1300); we are designating multiple 

locations across the range of the 

subspecies to prevent range collapse. 

In light of significant comments 

received during the comment periods 

for the proposed rule on areas that are 

essential to the subspecies and should 

be included in the designation, and new 

information received, we revised our 

criteria used to identify critical habitat 

to capture additional self-sustaining 

populations of San Bernardino kangaroo 

rats necessary for recovery (see ‘‘Criteria 

Used To Identify Critical Habitat’’ 

section below for more information). We 

then re-evaluated the proposed critical 

habitat boundaries and included in the 

designation additional areas in Mill 

Creek, Plunge Creek (including areas 

providing habitat connectivity of the 

Plunge Creek wash with the Santa Ana 

River wash), Cable Creek wash, and 

Bautista Creek. These areas are currently 

designated as critical habitat for the San 

Bernardino kangaroo rat (67 FR 19812, 

April 23, 2002); however, we did not 

propose these areas as critical habitat in 

the June 19, 2007 (73 FR 33808), 

proposed revision to critical habitat, but 

announced the addition of these areas as 

changes to the proposed rule in the 

April 16, 2008, NOA. See the ‘‘Summary 

of Changes From the 2007 Proposed 

Rule to Revise Critical Habitat’’ and the 

‘‘Unit Descriptions’’ sections of this 

final rule for more information. 

Comment 7: One commenter 

indicated concerns about the following 

statement made in the proposed rule: 

‘‘Portions of the habitat downstream of 

the Bautista Creek confluence have been 

or are in the process of being developed 

or are being used for water conservation 

activities and therefore this habitat does 

not contain the PCEs.’’ The commenter 

indicated that these areas should be 

included in critical habitat and further 

stated that no data was presented in the 

proposed rule indicating that these areas 

are no longer occupied, no longer 

contain the PCEs; and if degraded, how 

these areas have become degraded over 

the last five years. 

Our Response: In the 2007 proposed 

rule, we discussed an integrated water 

recharge and recovery program to be 

implemented by Eastern Municipal 

Water District at the confluence of the 

San Jacinto River and Bautista Creek 

within existing critical habitat Unit 3. 

The project was expected to impact 

approximately 37 ac (15 ha) of 

floodplain and upland habitat (Service 

2006, p. 21). The Service issued a 

biological opinion for this project on 

November 16, 2006 (Service 2006, 

FWS–WRIV–4051.5), which found that 

the proposed action would not 

jeopardize the continued existence of 

the subspecies nor adversely modify the 

currently designated critical habitat. 

Although Map 4 of the proposed rule 

(72 FR 33808) depicts these lands 

within the boundary of proposed critical 

habitat Unit 3, the text of the proposed 

rule explained that we were not 

proposing to include these lands as 

revised critical habitat because they had 

been addressed by the section 7 

consultation and biological opinion, and 

the proposed action would permanently 

impact this habitat. The water recharge 

and recovery program lands total 

approximately 39 ac (16 ha), not 37 ac 

(15 ha) as previously reported in the 

proposed rule (72 FR 33808), all of 

which are currently designated as 

critical habitat for the San Bernardino 

kangaroo rat. These approximately 39 ac 

(16 ha) of lands are divided into five 

individual outparcels ranging in size 

from less than an acre to 35 ac (14 ha) 

and each areas is surrounded by other 

lands that we did include in the 

proposed revision to designated critical 

habitat. The commenter is correct in 

pointing out that this area has not yet 

been developed and the area does 

currently contain the physical and 

biological features essential to the 

conservation of this subspecies, as 

identified by the PCEs in the 

appropriate quantity and spatial 

arrangement. Furthermore, as indicated 

in the biological opinion, we are aware 

that this area is occupied. 

Following publication of the proposed 

rule to revise the critical habitat 

designation, several surveys were 

conducted within these 39 ac (16 ha) in 

association with the integrated water 

recharge and recovery project. These 

surveys have indicated that the 

population of San Bernardino kangaroo 

rats in these areas is larger than 

previously believed and exceeds what 

we estimated the population to be in 


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2006. Based on these survey results, the 

Army Corps of Engineers requested that 

we re-initiate consultation on this 

project. Because these lands are 

currently designated as critical habitat 

and the maps indicating areas proposed 

as critical habitat included these areas 

(72 FR 33808), and in light of the public 

comment, new survey data and reinitiation of consultation on the Eastern 

Municipal Water District project, we 

included these 39 ac (16 ha) in Unit 3 

as lands that meet the definition of 

critical habitat. We believe that 

inclusion of these 39 ac (16 ha) is a 

logical outgrowth of the proposed rule 

and is scientifically sound and legally 

justified. We determined, however, that 

these 39 ac (16 ac) should be excluded 

from the final critical habitat 

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

Act. See the ‘‘Summary of Changes 

From the 2007 Proposed Rule To Revise 

Critical Habitat’’ and ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ sections of 

this final rule for more information. 

Comment 8: Several commenters 

stated that the Service cannot focus 

primarily on its definition of core 

populations (i.e., areas where the 

subspecies was repeatedly detected 

through live trapping) when false 

negatives occur from live trapping 

surveys 20 percent of the time. They 

further stated that the Service’s 

definition of core populations is 

inappropriate, would result in 

substantial San Bernardino kangaroo rat 

populations being excluded from 

critical habitat, and should be redefined. 

A number of commenters suggested 

peripheral or sporadically occupied 

locations are essential for conservation 

of the subspecies. One commenter 

stated that areas currently having low 

populations should not be removed 

from critical habitat. The commenter 

stated that the Service’s assertion that 

some viable San Bernardino kangaroo 

rat populations do not fit the definition 

of a core population, and are therefore 

less important, has no biological basis 

for an animal that has already lost 90 

percent of its historical range. The 

commenter stated that by not including 

potential or occupied habitat that has 

been degraded as critical habitat would 

allow private landowners and public 

agencies the ability to further degrade 

those areas that are important to the 

conservation of the San Bernardino 

kangaroo rat. 

Our Response: As discussed in the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final rule, we 

delineated critical habitat for the San 

Bernardino kangaroo rat using the 

following criteria: (1) Areas occupied by 

the subspecies at the time of listing, and 

currently occupied, within the historical 

range of the subspecies; (2) areas 

retaining fluvial dynamics containing 

one or more of the PCEs for the 

subspecies; (3) areas supporting a core 

population of the subspecies; and (4) 

areas demographically disconnected 

from the largest populations, but which 

may be important for the long-term 

recovery of the subspecies. Application 

of these criteria results in the 

determination of the physical and 

biological features that are essential to 

the conservation of this subspecies, 

identified as the species’ PCEs laid out 

in the appropriate quantity and spatial 

arrangement. Thus, not all areas 

supporting the identified PCEs will 

meet the definition of critical habitat. 

Based on information provided in 

public comments, these criteria were 

revised after the June 19, 2007 (72 FR 

33808), proposed revision to critical 

habitat to capture essential features 

supporting additional self-sustaining 

populations of San Bernardino kangaroo 

rats (see ‘‘Criteria Used To Identify 

Critical Habitat’’ section below for more 

information). As a result, we added four 

areas totaling approximately 1,579 ac 

(639 ha) to the proposed revision as 

announced in the April 16, 2008 NOA 

(73 FR 20581). We believe our final 

designation accurately describes all 

specific areas meeting the definition of 

critical habitat for the San Bernardino 

kangaroo rat. We acknowledge that false 

negatives can occur from live trapping 

surveys for San Bernardino kangaroo 

rats; however, as required under the 

Act, we used the best available scientific 

information in determining areas 

occupied by this subspecies. 

We recognize that our designation of 

critical habitat for the San Bernardino 

kangaroo rat does not encompass all 

known occurrences of this subspecies as 

noted by the commenters. In this 

designation, we focused primarily on 

core populations (i.e., areas where the 

subspecies was repeatedly detected 

through live trapping) in undisturbed 

habitat in the Santa Ana River, Lytle/ 

Cajon Creeks, and the San Jacinto River 

washes. We believe protecting the 

largest core populations is necessary for 

recovery of the subspecies. Small, 

isolated areas of degraded habitat or 

areas devoid of fluvial processes are 

likely to only support unsustainable 

populations that would not contribute 

to the recovery of this subspecies. 

Although we are not designating all 

known occurrences of the San 

Bernardino kangaroo rat, we believe our 

criteria are sufficient, and therefore the 

designation is adequate, to ensure the 

conservation of this subspecies 

throughout its extant range based on the 

best available information at this time. 

We recognize that the designation of 

critical habitat may not include all of 

the habitat that may eventually be 

determined to be necessary for the 

recovery of the subspecies, and critical 

habitat designations do not signal that 

habitat outside of the designation is 

unimportant or may not contribute to 

recovery. Areas outside the final critical 

habitat designations will continue to be 

subject to conservation actions 

implemented under section 7(a)(1) of 

the Act, and regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard and the prohibitions of section 

9 of the Act. 

Comment 9: One commenter cited 

statements in the proposed rule that 

several areas were not included in the 

proposed designation because they 

‘‘contain habitat that has been 

degraded’’ and requested justification as 

to why no regulatory mechanisms were 

triggered in the past to prevent habitat 

destruction in these areas since they 

were included in the 2002 designation. 

Our Response: As explained above in 

response to comment 2, the reduction in 

total area from what was designated in 

2002 is primarily the result of: (1) 

Exclusions of habitat under section 

4(b)(2) of the Act; (2) revision of the 

primary constituent elements; (3) 

revision of our criteria used to identify 

critical habitat; (4) and removal of lands 

within the geographical area occupied 

by the subspecies at the time it was 

listed that do not contain the physical 

or biological features as identified by 

the PCEs in the appropriate quantity 

and spatial arrangement essential to the 

conservation of the subspecies. 

We have significant additional 

occurrence data and knowledge about 

specific habitat requirements of this 

species that was not known when we 

first designated critical habitat for the 

San Bernardino kangaroo rat in 2002. 

We utilized this data to revise the 

primary constituent elements and 

criteria used to identify critical habitat 

consistent with the statutory obligations 

of the Act and applicable case law (see 

the ‘‘Summary of Changes From the 

2002 Critical Habitat Designation’’ 

section of this final rule for more 

information). 

As pointed out by the commenter, 

there are areas of currently designated 

critical habitat that were removed in 

part due to habitat degradation and/or 

the determination that the areas do not 

contain the physical and biological 

features essential to the conservation of 

this subspecies. Some of these areas 

likely did not support the physical and 

biological features essential to the 


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conservation of the subspecies in 2002, 

when critical habitat was first 

designated (see ‘‘Summary of Changes’’ 

section). We have revised the PCEs 

since the 2002 designation based on 

new information and a better 

understanding of the statutory 

obligations of the Act. Furthermore, we 

diligently reviewed all areas considered 

for designation to demonstrate existence 

of the physical and biological features 

essential to the conservation of this 

subspecies within the geographical area 

occupied by this subspecies at listing. 

Other areas have become degraded 

since critical habitat was designated. 

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. However, 

there are a number of reasons why 

designated critical habitat can become 

degraded without triggering 

consultation. 

The designation of critical habitat 

does not affect land ownership or 

establish a refuge, wilderness, reserve, 

preserve, or other conservation area. 

Generally, habitat may degrade through 

time due to lack of management. A 

critical habitat designation does not 

force a landowner to manage their land 

to the benefit of a species. Furthermore, 

proposed projects or actions occurring 

in critical habitat that do not involve a 

Federal nexus are not subject to the 

section 7 prohibition against destruction 

or adverse modification of critical 

habitat and, therefore, no consultation is 

required for those projects to occur. 

Where the consultation requirements of 

section 7(a)(2) do apply, an analysis 

would only result in a finding of 

destruction or adverse modification if 

the project was expected to impact the 

capability of the critical habitat unit as 

a whole to perform its conservation 

function for the subspecies. Projects 

may adversely impact the physical and 

biological features essential to the 

conservation of a species within a 

critical habitat unit without impairing 

the unit’s conservation role and 

function for the species. For example, 

the Service completed formal section 7 

consultation on the Lytle Creek North 

Master Planned Community in existing 

critical habitat Unit 2. In our Biological 

Opinion we determined that the 

proposed action was not likely to 

jeopardize the continued existence of 

the subspecies nor result in the 

destruction or adverse modification of 

critical habitat (Service 2003a, p. 45, 

FWS–SB–1640.11), even though the 

project resulted in the loss of some 

designated critical habitat. We have not 

consulted on any projects within 

designated critical habitat where we 

determined that project implementation 

would destroy or otherwise adversely 

modify critical habitat such that the 

designated unit could no longer 

properly function and support the 

essential features for which it was 

designated. Finally, 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. 

Comment 10: Two commenters stated 

that critical habitat should include 

linkage corridors and address 

connectivity issues relevant to the San 

Bernardino kangaroo rat. One 

commenter stated that arguments in the 

proposed rule to remove specific areas 

within the Santa Ana River watershed 

show a limited understanding of the 

habitat needs and the corridor 

connectivity issues that are relevant to 

this subspecies. One commenter further 

stated that the critical habitat delineated 

in the proposed revision to critical 

habitat shows a limited, single-species 

perspective. Several commenters stated 

that continuity between populations 

must be maintained. 

One commenter stated that, through 

the proposed rule, fragments of critical 

habitat were created (i.e., Plunge Creek) 

and populations removed because they 

are believed to be isolated from perhaps 

larger populations (i.e., Etiwanda Fan, 

Cable Creek, and Bautista Creek) and 

that the goal for the designation should 

be to form linkages between occupied 

areas, which reduce genetic isolations, 

allow populations to re-colonize 

following local extinctions from 

stochastic events, and migrate in 

response to environmental change. 

Our Response: We agree that linkages 

are important to reduce genetic isolation 

and to allow for re-colonization and 

migration. Included in the criteria for 

defining the physical and biological 

features within occupied habitat for 

inclusion in the critical habitat 

designation are areas adjacent to and 

between San Bernardino kangaroo rat 

occurrence points that maintain 

connectivity of occurrences in one 

continuous patch of suitable habitat. We 

maintained connectivity of core 

populations within each of the proposed 

critical habitat units. However, in some 

areas there are geographical barriers to 

connectivity, such as manmade 

structures or large expanses of 

unsuitable habitat. These areas are not 

likely to support actual movement of 

San Bernardino kangaroo rats and do 

not contain the physical and biological 

features essential to the conservation of 

this subspecies, and therefore do not 

meet the definition of critical habitat 

and are not included in this final 

designation. As announced in the NOA 

for the draft economic analysis (73 FR 

20581), we are including in the final 

revised critical habitat designation areas 

in and around Plunge and Mill Creeks 

to increase connectivity in Unit 1. 

Furthermore, we are including portions 

of Cable Creek (Unit 4) and Bautista 

Creek (Unit 5) in the designation of 

critical habitat as these areas may be 

important for the long-term 

conservation of this subspecies. See the 

‘‘Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat’’ and the ‘‘Unit Descriptions’’ 

sections of this final rule for more 

information. 

Designation of these areas within the 

Santa Ana River, Lytle/Cajon Creeks, 

and San Jacinto River watersheds is 

based on data and information received 

during the comment periods from these 

and other commenters and creates 

additional connectivity within the 

designation. We responded to all data 

and scientific information received 

during the comment periods and did not 

receive any other data indicating that 

additional areas within the Santa Ana 

River watershed, or elsewhere within 

the range of the San Bernardino 

kangaroo rat, meet the definition of 

critical habitat. We agree with the 

commenter that this final designation is 

limited in perspective to a single 

subspecies, the San Bernardino 

kangaroo rat. It is outside the scope of 

this final rule to address conservation 

need of other species within a single 

species critical habitat designation. 

Comment 11: One commenter 

asserted that the Service’s statement in 

the 2007 proposed rule that channelized 

areas in the San Jacinto River prevent 

connectivity with core populations is 

unjustified, and that we provided no 

evidence indicating that the PCEs are 

not present or that these areas do not 

provide connectivity. Several 

commenters stated that channelized 

creeks (such as portions of Cable and 

Bautista creeks) should contain a 

natural bottom with islands of habitat 

that the subspecies could use as corridor 

habitat, utilizing patches of habitat as 

‘‘stepping stones’’ and temporary refugia 

as they disperse. 

Our Response: Channelized areas are 

not included in this designation because 

they do not provide suitable habitat to 

sustain San Bernardino kangaroo rat 

populations beyond the next storm 

event, which could flood the channels 


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with high-velocity flows from bank to 

bank, eliminating populations within 

the channelized areas. Furthermore, we 

have no evidence to suggest that this 

subspecies utilizes channelized areas 

(some of which are lined with concrete) 

to successfully migrate between 

populations. We agree that channels 

with natural bottoms and islands of 

habitat could provide better 

opportunities for dispersal between 

populations. However, these ‘‘stepping 

stones’’ are not in place at this time, and 

we are not including these channelized 

areas in the designation of critical 

habitat as they do not currently meet the 

definition of critical habitat. 

Comment 12: One commenter stated 

that construction technologies should be 

explored that would create or sustain 

San Bernardino kangaroo rat habitat. 

The commenter also stated that a 

hydrologic analysis of the existing 

levees, detention basins, and other flood 

control structures should be completed 

to determine if these structures are still 

required. Another commenter stated 

that areas along the Santa Ana River are 

important, as re-engineering of flood 

control features can create appropriate 

conditions for the San Bernardino 

kangaroo rat. 

Our Response: We agree that flood 

control and water conservation 

structures contributed to the loss of 

suitable habitat for the San Bernardino 

kangaroo rat by altering hydrological 

processes, and we agree that sustaining 

areas where natural hydrological 

processes remain is important to the 

conservation of this subspecies. 

Although studies of construction 

technologies and investigations of the 

necessity for existing hydrological 

structures could benefit the 

conservation of this subspecies in the 

future, we do not currently have this 

information and we were not able to 

include an analysis of such information 

in making our designation of critical 

habitat. When delineating critical 

habitat for the San Bernardino kangaroo 

rat, we used the best available scientific 

information to determine those areas 

that meet the definition of critical 

habitat. 

Comment 13: One commenter stated 

that the proposed rule was flawed 

because the Service failed to include 

unoccupied areas for recovery. The 

commenter stated that the Service 

ignored the recovery goal of critical 

habitat by failing to include historical 

habitat that may not be currently 

occupied, but could provide an 

opportunity for the subspecies’ 

recovery. The commenter further stated 

that the Service must consider and 

evaluate the recovery benefits of critical 

habitat designation in order to 

promulgate a legally valid critical 

habitat rule. One commenter stated that 

areas outside the geographical area 

occupied by the subspecies included in 

the 2002 designation are still essential 

to the conservation of the subspecies 

and should have been included in the 

2007 proposed rule. 

Our Response: The Service may 

designate as critical habitat areas 

outside of the geographical area 

occupied by a species at the time it was 

listed when we can demonstrate that 

those areas are essential for the 

conservation of the species (section 

3(5)(A)(ii) of the Act). Likewise, we can 

designate as critical habitat areas 

‘‘outside the geographical area presently 

occupied by a species only when a 

designation limited to its present range 

would be inadequate to ensure the 

conservation of the species.’’ (50 CFR 

424.12(e)). 

Conservation (i.e., recovery) is 

achieved when a five factor analysis 

performed pursuant to section 4(a)(1) if 

the Act indicates that current and future 

threats have been minimized to an 

extent that the species is no longer 

threatened with extinction in the 

foreseeable future. Recovery is a 

dynamic process requiring adaptive 

management of threats and there are 

many paths to accomplishing recovery 

of a species. We recognize that it is 

unlikely that threats to this subspecies 

will be removed from all areas 

identified in this rule and that recovery 

efforts will occur outside the boundaries 

of this final designation; however, we 

believe that that conservation of this 

subspecies would be achieved if threats 

to this subspecies, as described in the 

‘‘Special Management Considerations or 

Protection’’ section of this rule, were 

reduced or removed due to management 

and protection of those areas. Therefore, 

consistent with the statutory obligations 

of the Act and our implementing 

regulations we are not designating any 

unoccupied areas or areas outside the 

geographical area occupied by this 

subspecies at the time it was listed. 

Critical habitat designations do not 

signal that habitat outside the 

designation is unimportant or may not 

contribute to a species’ recovery. Areas 

outside the final critical habitat 

designation will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act, and 

regulatory protections afforded by the 

section 7(a)(2) jeopardy standard and 

the prohibitions of section 9 of the Act. 

Critical habitat designations based on 

the best available information at the 

time of designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if information available 

at the time of those planning efforts 

calls for a different outcome. We 

recognize that the threats faced by this 

subspecies may change in the future; 

however, we base our critical habitat 

designations on the information 

available at the time of the designation 

and do not speculate as to what areas 

may be found essential if better 

information becomes available or what 

areas may become essential over time. 

The commenter did not include any 

specific data supporting their statement 

that unoccupied areas are essential for 

the recovery of the San Bernardino 

kangaroo rat and we are not aware of 

any studies or data that we did not 

consider. Should additional data 

become available, we may revise this 

critical habitat designation, subject to 

available funding and other 

conservation priorities. 

Contrary to the commenter’s 

assertion, we note that all areas 

designated as critical habitat in 2002 

were within the geographical area 

occupied by the species at the time of 

listing. For a detailed discussion 

regarding areas referenced by the 

commenter that were designated in 2002 

but not included in this final revised 

designation, please see the ‘‘Summary of 

Changes From the 2002 Critical Habitat 

Designation’’ section of this final rule. 

Comment 14: One commenter stated 

that before the Service reduces critical 

habitat of a species that is already in 

peril, the Service should scientifically 

analyze if this reduction further 

jeopardizes the species’ recovery and 

that a recovery plan, including a 

population viability analysis, should be 

completed for the San Bernardino 

kangaroo rat. 

Our Response: We agree that a 

recovery plan and a population viability 

analysis could provide useful 

information when considering a critical 

habitat designation; however, at this 

time, neither a recovery plan nor a 

population viability analysis was 

completed for the San Bernardino 

kangaroo rat. Given the timeframe in 

which we had to prepare this critical 

habitat rule, we did not have time to 

prepare a recovery plan or a population 

viability analysis for this subspecies; 

and the Act does not require the 

preparation of such analyses before 

critical habitat is designated. When 

delineating critical habitat for the San 

Bernardino kangaroo rat, we used the 

best available scientific information to 

determine those areas that meet the 

definition of critical habitat. 


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Comments Related to the Primary 

Constituent Elements 

Comment 15: One commenter stated 

that hydrological processes are an 

essential part of the alluvial fan sage 

scrub plant community and San 

Bernardino kangaroo rat habitat and, 

therefore, should be included as a PCE. 

The commenter further stated areas that 

provide necessary hydrology to downstream alluvial fans and the processes 

that the San Bernardino kangaroo rat 

relies upon for habitat renewal and 

maintenance should have been included 

in the proposed designation. 

Our Response: We consider PCEs to 

be tangible, recognizable, or measurable 

features in the landscape, where 

possible, and not the processes that 

result in the feature. Biologists and nonbiologists should be able to clearly 

determine the presence of PCEs in the 

field. A process such as hydrological 

regime should not be a PCE, but the 

resulting habitat condition (i.e., the end 

result of the process) is an appropriate 

PCE. In the case of the San Bernardino 

kangaroo rat, although hydrological 

processes maintain the alluvial sage 

scrub with proper soil and vegetative 

characteristics for this subspecies, 

habitat features described by the PCEs 

are the actual habitat parameters relied 

upon by the San Bernardino kangaroo 

rat, not the natural process that 

contributes to the long-term 

maintenance of the habitat (see the 

‘‘Primary Constituent Elements’’ section 

for a detailed discussion). 

Comment 16: One commenter stated 

that the proposed rule fails to describe 

the PCEs based on the best available 

science. This commenter stated that 

according to Braden and McKernan 

(2000), San Bernardino kangaroo rats 

were documented in a variety of plant 

communities, including coastal sage 

scrub, chaparral, in highly disturbed 

areas previously not thought to be 

suitable habitat for this subspecies (i.e., 

dirt parking lots, dirt roads), and 

questioned why these plant 

communities and disturbed areas were 

not included in the proposed 

designation. 

Our Response: The PCEs for the San 

Bernardino kangaroo rat described in 

the proposed rule and this final rule are 

based on the best available science (see 

Comment 5 and response above). We are 

aware of the Braden and McKernan 

(2000) study, which showed San 

Bernardino kangaroo rats occupying 

areas that were previously thought to be 

unsuitable habitat, and we have used 

that information in revising the PCEs 

and delineating critical habitat for this 

subspecies in this final rule. Please refer 

to the ‘‘Primary Constituent Elements’’ 

section of this final rule for more 

information on this topic. 

Comment 17: One commenter 

disagreed with PCEs 2 and 3, stating 

that areas with up to 50 percent chamise 

chaparral cover are unsuitable for the 

San Bernardino kangaroo rat and that 

marginal upland areas occupied at low 

densities that are in proximity to 

occupied habitat do not serve to 

perpetuate the subspecies. 

Our Response: We disagree with the 

commenters’ assertion that up to 50 

percent chamise chaparral cover is 

unsuitable for the San Bernardino 

kangaroo rat. Research shows that 

alluvial fan habitat with mature, 

relatively dense vegetation, including 

chaparral, is at least periodically 

occupied by the San Bernardino 

kangaroo rat (Braden and McKernan 

2000, p. 16) (see Comment 16 and 

response above and the ‘‘Primary 

Constituent Elements’’ section of this 

final rule). Also, we believe upland 

areas contain features essential to the 

conservation of the subspecies (see the 

‘‘Primary Constituent Elements’’ section 

of this final rule for a detailed 

discussion of the importance of upland 

habitat). 

Comments Related to Subspecies 

Biological Information 

Comment 18: One commenter 

suggested our statement that inclusion 

of ‘‘sufficient areas to provide the space 

needed to maintain the home range for 

this subspecies’’ is naı ̈ve and 

misleading. This commenter stated they 

have studied home range dynamics and 

space utilization of the Merriam’s 

kangaroo rat (Dipodomys merriami), of 

which the San Bernardino kangaroo rat 

is a subspecies, and the commenter 

noted that this species diverges from the 

normally accepted concept of home 

range as a single area where an 

individual remains for life. The 

commenter further stated that the size, 

shape, and location of a home range will 

change dramatically through time 

depending on a number of factors. 

Our Response: We agree with the 

commenter about the dynamic and 

changing nature of the San Bernardino 

kangaroo rat’s home range. We did not 

suggest in the proposed rule that this 

subspecies has a defined, static home 

range where it remains during its entire 

lifetime. Furthermore, we considered 

the dynamic home range of this 

subspecies when delineating critical 

habitat. In order to clarify concerns 

voiced by the commenter, we changed 

the quoted text which appears in the 

‘‘Primary Constituent Elements’’ section 

of this final rule to read ‘‘sufficient areas 

to provide the space needed to maintain 

the home range dynamics of this 

subspecies.’’ 

Comments Related to Proposed 

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

Act 

Comment 19: One commenter stated 

that many of the proposed exclusions of 

critical habitat are not consistent with 

the stated goals of the Service in 

providing protection and recovery for 

the San Bernardino kangaroo rat, while 

another commenter stated that areas 

proposed for exclusion by the Service 

should remain in critical habitat. 

Another commenter stated that while 

they support conservation efforts for the 

San Bernardino kangaroo rat through 

management plans and acquisition of 

funding to implement these plans, these 

efforts are not a substitute for the 

designation of critical habitat. This 

commenter stated that the rationale for 

proposing the following areas for 

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

Act is unjustified for the following 

reasons: 

(1) WSPA Management Plan—(a) this 

plan does not mention the San 

Bernardino kangaroo rat as a target 

species for conservation nor does it 

provide species-specific monitoring; (b) 

because the San Bernardino kangaroo 

rat is sympatric with the woolly star, 

declines in the number of woolly star 

plants documented in this area over the 

past seven seasons may indicate a 

potential decline in San Bernardino 

kangaroo rat habitat as well; (c) relying 

on the draft WSPA Multiple Species 

Habitat Management Plan (MSHMP) to 

exclude areas from final critical habitat 

is not justified since the specific goals 

of the draft MSHMP are currently nonbinding; 

(2) Former Norton Air Force Base 

CMP—while conservation easements are 

identified as the method to assure San 

Bernardino kangaroo rat conservation in 

perpetuity, to date no conservation 

easements are recorded for these areas; 

(3) Western Riverside County 

MSHCP—the purpose of the MSHCP to 

streamline Federal and State regulatory 

mechanisms and allow for take of 

endangered species is very different 

from the purpose of critical habitat to 

recover species; and 

(4) The designation of Norton Air 

Force Base, Cajon Creek Habitat 

Conservation Management Area, and 

Eastern Municipal Water District 

Conservation Lands as critical habitat 

causes no additional regulatory burdens 

to the agencies that now manage them 

and will actually aid in bringing muchneeded resources to the management of 

these areas. 


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Our Response: We determined that 

the benefits of exclusion outweigh the 

benefits of inclusion for lands covered 

by the WSPA Management Plans, the 

Former Norton Air Force Base CMP, the 

Western Riverside County MSHCP, and 

the Cajon Creek HCMA HEMP, and 

therefore excluded these lands from 

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

Please see the ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section of 

this final rule for a detailed discussion 

of the management plans and the 

benefits each plan provides to the San 

Bernardino kangaroo rat. 

Where a Federal nexus exists, lands 

designated as critical habitat are 

protected from destruction or adverse 

modification under section 7(a)(2) of the 

Act. However, the conservation and 

management plans mentioned above 

incorporate on-going management and 

protection for the San Bernardino 

kangaroo rat that will benefit the longterm conservation of the subspecies. 

This type of long-term management 

would not necessarily result from a 

section 7(a)(2) consultation on an area 

where critical habitat is designated. 

Additionally, the protection and 

management afforded to San Bernardino 

kangaroo rat habitat under these plans 

extend to private lands that may 

otherwise lack a Federal nexus 

triggering consultation under section 

7(a)(2) of the Act. Moreover, these plans 

provide for proactive monitoring and 

management of conserved lands, which 

is important to the survival and 

recovery of the San Bernardino 

kangaroo rat. 

Such conservation needs are typically 

not addressed through the application of 

the statutory prohibition on destruction 

or adverse modification of critical 

habitat. Section 4(b)(2) of the Act directs 

the Secretary to consider the economic 

impact, national security impact, and 

any other relevant impact of specifying 

any particular area as critical habitat. 

An area may be excluded from critical 

habitat if it is determined that the 

benefits of exclusion outweigh the 

benefits of specifying a particular area 

as critical habitat, unless the failure to 

designate an area as critical habitat will 

result in the extinction of the species. 

As discussed in detail in the 

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

Act’’ section, we believe the exclusions 

in this final rule are legally supported 

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

scientifically justified. The benefits of 

designating critical habitat in areas 

covered by these plans are minimal, and 

implementation of these plans will 

result in an increased level of protection 

and long-term conservation for the San 

Bernardino kangaroo rat. Imposing an 

additional regulatory review as a result 

of designating critical habitat may 

undermine these conservation efforts 

and partnerships. 

With regard to the comments above 

that are specific to the WSPA Plan; first, 

we acknowledge that the San 

Bernardino kangaroo rat is not directly 

addressed by the 1993 Management 

Plan for the Santa Ana River WoollyStar implemented on the WSPA. 

However, the management tasks benefit 

the San Bernardino kangaroo rat as well 

(see ‘‘Woolly-Star Preserve Area (WSPA) 

Management Plans’’ discussion below). 

Second, we have no records to indicate 

that a recent decline in woolly star 

plants is directly related to a decline in 

San Bernardino kangaroo rat habitat. 

Third, we are not basing our exclusion 

of WSPA lands solely on the recent draft 

WSPA MSHCP. We are excluding those 

lands based on partnerships with the 

local sponsors in preparation and 

implementation of the 1993 WSPA 

management plan and the ongoing 

update to that plan (i.e., the WSPA 

MSHCP) which will address the San 

Bernardino kangaroo rat (see the 

‘‘Woolly-Star Preserve Area (WSPA) 

Management Plans’’ exclusion 

discussion below). 

With regard to the conservation 

easements on Former Norton Air Force 

Base (CMP) lands, the San Bernardino 

International Airport Authority (SBIA 

Authority) is currently pursuing 

conservation easements to assure San 

Bernardino kangaroo rat conservation in 

perpetuity on these lands. 

Regarding the remaining points raised 

by the commenter above specific to the 

Western Riverside County MSHCP, the 

Former Norton Air Force Base CMP, and 

the Cajon Creek HCMA HEMP, please 

see the ‘‘Benefits of Designating Critical 

Habitat,’’ ‘‘Conservation Partnerships on 

Non-Federal Lands,’’ ‘‘Benefits of 

Excluding Lands With HCPs or Other 

Approved Management Plans,’’ and the 

plan-specific exclusions sections of this 

final rule for a full discussion of our 

rationale for excluding these lands 

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

we are not excluding the Eastern 

Municipal Water District conservation 

lands from critical habitat for the San 

Bernardino kangaroo rat. 

Comment 20: Two commenters stated 

that the proposed revision would violate 

the Implementing Agreement (IA) of the 

Western Riverside County MSHCP 

because it does not exclude 506 ac (205 

ha) of water district land within the 

MSHCP boundaries. They further stated 

that the MSCHP has already taken the 

506 ac (205 ha) of water district lands 

into account—and state that in the IA, 

the Service agreed that ‘‘in the event 

that a critical habitat determination is 

made for any Covered Species 

Adequately Conserved * * * lands 

within the boundaries of the MSHCP 

will not be designated as critical 

habitat.’’ They further stated that the 

MSHCP provides full protection for the 

San Bernardino kangaroo rat even 

without consideration of the 506 ac (205 

ha) owned by the two water districts 

(Eastern Municipal Water District and 

Lake Hemet Municipal Water District). 

Additionally, the commenters stated 

that the water districts could qualify as 

a ‘‘Participating Special Entity’’ under 

the MSHCP and the significance of this 

is that if either water district wishes to 

implement a project for which take 

authorization is required, they must 

comply with the MSHCP and its IA. 

Thus, if take authorization were ever 

required for their properties, it would be 

covered under the MSHCP. 

Our Response: In the proposed rule to 

revise critical habitat, we provided a 

description of the Western Riverside 

County MSHCP and an analysis of the 

proposed exclusion from critical habitat 

of lands covered by this plan to allow 

the public to comment and provide 

additional information that should be 

considered in our final exclusion 

analysis (see ‘‘Exclusions under Section 

4(b)(2) of the Act’’ section below for a 

detailed discussion). We appreciate any 

conservation work that Eastern 

Municipal Water District and Lake 

Hemet Municipal Water District may be 

doing; however, the water districts are 

not signatories to or permittees under 

the MSHCP. Because the water districts 

are not signatories of the MSHCP, they 

may elect to not be a ‘‘Participating 

Special Entity’’, and instead choose an 

alternative approach outside of the 

MSHCP to conduct their activities. By 

taking an alternative approach, a water 

district would not be required to comply 

with the MSHCP and associated IA. 

Therefore, the benefits of including 

lands owned by the Eastern Municipal 

Water District and Lake Hemet 

Municipal Water District as critical 

habitat are higher than the benefits of 

including other lands within the overall 

MSHCP boundaries subject to the 

MSHCP, and we determined under 

section 4(b)(2) of the Act that the water 

districts’ lands should not be excluded 

from this final designation. 

Comment 21: One commenter stated 

that the area covered by the Cajon Creek 

HCMA HEMP should remain in the 

critical habitat designation to remind 

the conservation area managers of their 

responsibility to the San Bernardino 

kangaroo rat and other threatened and 

endangered species. 


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Our Response: The Cajon Creek 

HCMA HEMP, managed by Vulcan 

Materials Company (formerly CalMat 

Company), Western Division, was 

created to offset sand and gravel mining 

proposed within and adjacent to Cajon 

Creek. In making the Cajon Creek 

HCMA HEMP exclusion, we evaluated 

the benefits of designating non-Federal 

lands that may not have a Federal nexus 

for consultation while considering if our 

existing partnership has, or will, result 

in greater conservation benefits to the 

San Bernardino kangaroo rat and its 

habitat than would likely result from 

consultation on a designation. We 

balanced the benefits of inclusion 

against the benefits of exclusion (i.e., 

the benefits of preserving partnerships 

and encouraging development of 

additional HCPs and other conservation 

plans in the future). We determined that 

the Cajon Creek HCMA HEMP provides 

equivalent or greater conservation 

benefit to the San Bernardino kangaroo 

rat than would likely result from 

including this area in the designation, 

that designation could impact our 

current and future partnerships, and 

that exclusion of the lands covered by 

this plan will not result in the 

extinction of the subspecies (see 

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

Act’’ section below for a detailed 

discussion). Vulcan Materials is 

responsible for managing these alluvial 

fan scrub habitat areas in perpetuity for 

24 species, including the San 

Bernardino kangaroo rat, regardless of 

whether or not critical habitat for the 

San Bernardino kangaroo rat exists on 

these lands. Vulcan Materials Company 

is aware of the conservation value of 

their land and has maintained a strong 

partnership with the Service by 

submitting annual reports and ensuring 

that management and monitoring of 

their conservation lands adheres to the 

requirements of the Cajon Creek HCMA 

HEMP. 

Comment 22: One commenter stated 

that they oppose the Service’s policy of 

relying on section 4(b)(2) to exclude 

habitat that may be covered by 

management plans, conservation 

easements, and/or endowments under 

the logic that these areas do not need 

‘‘special management’’ pursuant to 

section 3(5)(A). The commenter referred 

to this approach as ‘‘belt and 

suspenders’’ and reminded the Service 

that the district court of Arizona struck 

down this approach in Center for 

Biological Diversity, et al. v. Norton (D. 

Ariz. 2003). Furthermore, the 

commenter stated that our exclusion 

analyses are flawed because a 

determination that excluding an area 

will not result in the extinction of a 

species does not consider the recovery 

standards and benefits associated with 

designation. The commenter believes 

that all San Bernardino kangaroo rat 

habitat needs special management 

because of the variety of impacts to its 

habitat (e.g., changes in hydrologic 

regimes, direct impacts from 

development, off-road vehicle impacts). 

The commenter stated that current or 

future management actions provided for 

the San Bernardino kangaroo rat or its 

habitat by management plans and/or 

conservation plans are not a reasonable 

justification for excluding these areas 

from the protection that a designation of 

critical habitat provides. The 

commenter further stated that the Act 

defines critical habitat as an area that 

may need special management, and 

therefore areas that are receiving 

management under a management plan 

and/or conservation plan meet the 

definition of critical habitat and should 

not be excluded if the necessary 

management is being provided under a 

plan. The commenter concluded that 

the Service should include in the final 

critical habitat designation all historical 

and contemporary areas where the San 

Bernardino kangaroo rat was known 

(unless it has been developed), because 

these areas meet the definition of 

critical habitat by nature of their need 

for special management. 

Our Response: The commenter 

appears to be confusing the purposes of 

sections 3(5)(A) and 4(b)(2) of the Act. 

Section 3(5)(A) provides the 

requirements for identifying critical 

habitat, while section 4(b)(2) directs the 

Secretary to consider the impacts of 

designating such areas as critical habitat 

and provides the Secretary with 

discretion to exclude particular areas if 

the benefits of exclusion outweigh the 

benefits of inclusion. In this rule, we 

have not stated that areas do not meet 

the definition of critical habitat under 

3(5)(A) because they are being 

adequately managed. However, we have 

considered the management of 

particular areas that do meet the 

definition of critical habitat in our 

analyses under section 4(b)(2). 

We explain our criteria for 

designating critical habitat in response 

to comments 6, 8, and 13 above as well 

as the ‘‘Criteria Used To Designate 

Critical Habitat’’ section below. The 

responses to comments 6 and 8 address 

why this designation does not contain 

all known occurrences of this 

subspecies (i.e., contemporary areas) 

and the response to comment 13 

addresses why we are not including any 

unoccupied habitat (i.e., historical 

areas) in this final rule. We believe our 

criteria captures all areas that meet the 

definition of critical habitat under 

section 3(5)(A) of the Act. We will focus 

our response to this comment on our 

exclusion of lands under section 4(b)(2) 

of the Act that we determined met the 

definition of critical habitat under 

section 3(5)(A) of the Act. 

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

any designations of and/or revisions to 

critical habitat will be made on the basis 

of the best scientific data available after 

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact of 

specifying any particular area as critical 

habitat. The Secretary may exclude any 

area from critical habitat if he 

determines that the benefits of exclusion 

outweigh the benefits of specifying such 

area as part of the critical habitat, unless 

he determines that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species concerned. Therefore, consistent 

with the Act, we must consider the 

relevant impacts of designating areas 

that meet the definition of critical 

habitat using the best available scientific 

data available prior to finalizing a 

critical habitat designation. 

After determining the areas that meet 

the definition of critical habitat under 

section 3(5)(A) of the Act as described 

above, we took into consideration the 

economic impact, the impact on 

national security, and other relevant 

impacts of specifying any particular area 

as critical habitat for the San Bernardino 

kangaroo rat. In this final designation, 

we recognize that designating critical 

habitat in areas where we have 

partnerships with land owners that have 

led to conservation and/or management 

of listed species on non-Federal lands 

has a relevant perceived impact to 

landowners and a relevant impact to 

future partnerships and conservation 

efforts on non-Federal lands. These 

impacts are described in detail in the 

‘‘Conservation Partnerships on NonFederal Lands’’ section below. Based on 

these relevant impacts, we evaluated the 

benefits of designating areas as critical 

habitat against the benefits of excluding 

these areas from the critical habitat 

designation. Please see the ‘‘Application 

of Section 4(b)(2) of the Act’’ and 

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

Act’’ sections of this final rule for a 

detailed discussion of the benefits of 

excluding lands covered by 

management plans versus the benefits of 

including these areas in a critical habitat 

designation. Upon weighing the specific 

benefits of inclusion against specific 

benefits of exclusion, we determined 

that the benefits of excluding a portion 

of units 1, 2, 3, and 5 outweigh the 


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benefits of including these areas in the 

final critical habitat designation. When 

weighing the benefits of including an 

area in the critical habitat designation, 

we fully consider the regulatory benefits 

provided to the species under section 

7(a)(2) of the Act based on the statutory 

difference between a jeopardy analysis 

and an adverse modification analysis, 

and our balancing analyses reflects our 

consideration of the recovery standards 

and benefits associated with 

designation. Further we determined that 

the exclusion of these areas will not 

result in extinction of the San 

Bernardino kangaroo rat. Contrary to the 

commenter’s belief, this determination 

to exclude areas where the benefits of 

exclusion outweigh the benefits of 

inclusion and where we determined that 

the exclusion will not result in the 

extinction of the species is consistent 

with the statutory obligations of the Act. 

Therefore, we believe these exclusions 

are in full compliance with the Act. 

Comment 23: One commenter stated 

that the proposed critical habitat rule 

did not unequivocally demonstrate that 

the benefits of excluding areas covered 

by management plans from critical 

habitat outweigh the benefits of 

including them. 

Our Response: As stated above, the 

Secretary may exclude any area from 

critical habitat if he determines that the 

benefits of exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines that the failure to designate 

such area as critical habitat will result 

in the extinction of the species 

concerned. The benefits of excluding an 

area from a critical habitat designation 

(e.g., preserving partnerships and 

fostering new partnerships) are not 

directly comparable to the benefits of 

including that same area within a 

designation (e.g., regulatory 

consultation requirement), and therefore 

one cannot unequivocally compare the 

two in an analysis; rather the Secretary 

fully considers the impacts of 

designation and weighs all the factors to 

determine if the benefits of exclusion 

outweigh the benefits of inclusion. For 

the reasons detailed in the ‘‘Exclusions 

under Section 4(b)(2) of the Act’’ section 

of this final rule, we determined that the 

benefits of exclusion outweigh the 

benefits of inclusion for lands covered 

by the WSPA Management Plans, the 

Former Norton Air Force Base CMP, the 

Western Riverside County MSHCP, and 

the Cajon Creek HCMA HEMP, and 

determined that exclusion of these lands 

will not result in the extinction of the 

San Bernardino kangaroo rat. Therefore, 

we have excluded these lands from the 

critical habitat designation under 

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

Comments on Lands Designated as 

Critical Habitat 

Comment 24: Several commenters 

stated there are areas within the 

proposed critical habitat that should not 

be included in the final designation 

because they do not contain the PCEs, 

are not occupied by the subspecies, or 

otherwise do not meet the definition of 

critical habitat. One commenter objected 

to the inclusion of three parcels of land 

along City Creek in proposed Unit 1 that 

are used by San Bernardino County 

Flood Control for maintenance activities 

following storm events, and stated that 

these parcels are being evaluated by the 

City of Highland as part of its land use 

planning effort for the future 

development of the Golden Triangle 

area. Two commenters objected to the 

inclusion of large areas of property 

(owned by Lytle Development 

Company) in the Lytle Creek area in 

proposed critical habitat Unit 2. The 

objection is based on negative survey 

data over recent years and judgment of 

a biological consultant who believes the 

areas in question are not suitable habitat 

for this subspecies, are not occupied, or 

are not essential to the conservation of 

the subspecies. 

Our Response: Where site-specific 

information was submitted to us with a 

rationale as to why an area should not 

be designated as critical habitat, we 

evaluated that information in 

accordance with the definition of 

critical habitat pursuant to section 

3(5)(A) of the Act. Following our 

evaluation of the provided information, 

we made a determination that 

modifications to the critical habitat 

boundaries were not warranted. Data 

used in the preparation of our final 

revised designation indicate that the 

area of Lytle Creek in question is 

occupied by the San Bernardino 

kangaroo rat and contains some of the 

last remaining suitable upland habitat 

(PCEs 2 and 3) in Unit 2 that contains 

the features essential to the conservation 

of the subspecies, and the areas near 

City Creek provide suitable alluvial 

habitat in Unit 1 and connectivity with 

the core population in the Sana Ana 

River wash. The area in question meets 

our criteria used to identify critical 

habitat (see ‘‘Criteria Used To Identify 

Critical Habitat’’ section below). We 

believe that based on the behavior and 

ecology of the San Bernardino kangaroo 

rat as extrapolated from the best 

available scientific data, the animal may 

not be detectable at all times across all 

areas designated as critical habitat, and, 

based on our analysis, we believe we 

properly defined occupancy as it relates 

to the behavior and ecology of this 

subspecies. 

Comment 25: One commenter stated 

the Service failed to make the requisite 

finding that land within two areas of 

Lytle Creek, which they claim should be 

excluded, may require special 

management considerations or 

protection. The commenter claims that 

these lands are not candidates for 

special management considerations or 

protection because no reasonable 

amount of management efforts could 

make these lands suitable for the San 

Bernardino kangaroo rat or connect 

them with the Lytle Creek wash 

population. The commenter further 

stated that one of these areas is outside 

the geographical area occupied by the 

San Bernardino kangaroo rat and the 

Service has not made, and cannot make, 

the requisite findings to include the area 

within critical habitat under 16 U.S.C. 

section 1532(5)(A)(ii). 

Our Response: We determined 

through survey data, vegetation data, 

analysis of aerial imagery, and site visits 

with Service subspecies experts, that 

these two areas of Lytle Creek are within 

the geographical area occupied at the 

time of listing, are currently occupied, 

and contain the features essential to the 

conservation of the San Bernardino 

kangaroo rat. We acknowledge that 

these upland areas are likely occupied 

at a lower density than areas within the 

lowland wash and contain somewhat 

dense vegetation; however, these areas 

contain some of the last remaining 

upland habitat within Unit 2 (PCEs 2 

and 3) and contain the features essential 

to the conservation of the subspecies as 

described in the ‘‘Primary Constituent 

Elements’’ section of this final rule. As 

discussed in the ‘‘Unit Descriptions’’ 

section of this final rule, the physical 

and biological features within the Lytle/ 

Cajon Creek wash may require special 

management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. Furthermore, Braden and 

McKernan (2000, p. 16) demonstrated 

that areas with late phases of floodplain 

vegetation, such as mature alluvial fan 

sage scrub and associated coastal sage 

scrub and chaparral, including some 

areas of moderate to dense vegetation, 

are at least periodically occupied by San 

Bernardino kangaroo rats. Additionally, 

we believe the earthen levees separating 

some of these areas from the active wash 

do not isolate individuals or prohibit 

movements in these areas from the core 

population within Lytle Creek wash. 

Therefore, we disagree with the 


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commenter’s claim that no reasonable 

amount of management efforts could 

make this land suitable for the 

subspecies or connect San Bernardino 

kangaroo rats in these areas with the 

Lytle Creek wash population; this area 

is occupied, connected, and the 

essential features may require special 

management considerations or 

protection. 

Comment 26: Two commenters stated 

that social, economic, and policy 

considerations in the context of the 

Act’s section 4(b)(2) balancing test 

support excluding a larger area from the 

designation in two areas within the 

Lytle Creek wash. The commenters 

suggested that there are various benefits 

to excluding Lytle Development 

Company (LDC) lands from the critical 

habitat designation. The commenters 

stated that removing critical habitat 

from these areas would allow LDC to 

develop its proposed Lytle Creek Ranch 

project. The commenters further stated 

that LDC would then be able, through 

financing generated by that project, to 

dedicate permanent conservation 

habitat for the San Bernardino kangaroo 

rat. 

Our Response: Lands owned by LDC 

contain both upland and lowland 

alluvial scrub habitat that contains 

features essential to the conservation of 

this subspecies and we appreciate LDC’s 

willingness to contribute to the longterm conservation of the San Bernardino 

kangaroo rat. However, when 

performing the required analysis under 

section 4(b)(2) of the Act, the existence 

of a management plan (i.e., HCP or other 

type) that considers enhancement or 

recovery of listed species as its 

management standard is relevant to our 

weighing of the benefits of inclusion 

versus the benefits of excluding a 

particular area in a critical habitat 

designation. In considering the benefits 

of including lands in a designation that 

are covered by a current HCP or other 

management plan, we evaluate a 

number of factors to help us determine 

if the plan provides equivalent or 

greater conservation benefit than would 

likely result from consultation on a 

designation: (1) Whether the plan is 

complete and provides protection from 

destruction or adverse modification; (2) 

whether there is a reasonable 

expectation that the conservation 

management strategies and actions will 

be implemented for the foreseeable 

future, based on past practices, written 

guidance, or regulations; and (3) 

whether the plan provides conservation 

strategies and measures consistent with 

currently accepted principles of 

conservation biology. Because habitat 

was not set aside and a management 

plan not completed that is consistent 

with the above factors, we determined 

that the exclusion of these areas under 

section 4(b)(2) of the Act based in part 

on potential future conservation would 

be inappropriate. Further, we do not 

believe the relative economic impact 

outweighed the conservation benefits of 

including these lands in the critical 

habitat designation. 

Comment 27: One commenter stated 

that the proposed rule somewhat 

mischaracterizes the existing LDC 

restoration and conservation program. 

The commenter stated that the program 

is managing all 217 ac (88 ha) to benefit 

the San Bernardino kangaroo rat (not 

just 40 ac (16 ha)) within the protected 

conservation area. 

Our Response: We acknowledge the 

conservation efforts of LDC, and in 

response to this comment we revised 

and supplemented the discussion of the 

LDC conservation areas in this final 

rule. Please see the ‘‘Unit Descriptions’’ 

section below for more information. 

Comment 28: One commenter stated 

that additional losses of habitat for the 

San Bernardino kangaroo rat are slated 

to occur and gave the example that the 

City of Highland is proceeding with a 

number of projects within currently 

designated and proposed critical 

habitat. The commenter stated that these 

further reductions in the animal’s 

habitat underscore the need to identify 

all extant areas where the subspecies 

exists and to include all occupied 

habitat in the final revised critical 

habitat designation. A second 

commenter stated that areas proposed 

by Orange County Flood Control District 

and the City of Highland for 

development of 3,000 homes and a 

highway through Mill Creek Wash lie 

within the proposed critical habitat 

boundary. A third commenter stated 

that the same 3,000-home project would 

be placed in an area that is one of the 

only places in Unit 1 (Mill Creek Wash) 

that still retains fluvial input. 

Our Response: We are not currently in 

consultation on the proposed projects 

mentioned in the comment above. Any 

project involving a Federal nexus which 

may affect a federally listed species or 

designated critical habitat would require 

consultation with the Service to ensure 

such actions would not jeopardize the 

continued existence of the species or 

destroy or adversely modify critical 

habitat (see the ‘‘Critical Habitat’’ 

section of this final rule for a detailed 

discussion). The designation of critical 

habitat does not affect projects that do 

not have a Federal nexus; however, if a 

project may result in take of a federally 

listed species, then the project 

proponent would need to obtain an 

incidental take permit from the Service 

to be in compliance with the Act. Mill 

Creek is important to the recovery of the 

subspecies as it is the only large stretch 

of contiguous, occupied habitat for the 

San Bernardino kangaroo rat within 

Unit 1 that is not fragmented by 

development (e.g., roads, aggregate 

mining pits). Furthermore, Mill Creek is 

the only remaining source of alluvial 

sediments within Unit 1 that has not 

been significantly altered by flood 

control structures, water diversions, or 

other activities. Although we did not 

include the majority of Mill Creek in our 

June 19, 2007, proposed revision to 

critical habitat, we have since reevaluated Mill Creek as described in the 

April 16, 2008, NOA in light of several 

substantive public comments 

recommending the inclusion of Mill 

Creek as critical habitat. We are 

including approximately 388 ac (157 ha) 

of Mill Creek in the final revised 

designation (see the ‘‘Summary of 

Changes From the 2007 Proposed Rule 

To Revise Critical Habitat’’ section of 

this final rule for more information). 

As discussed in our response to 

comment 6 above, under section 3(5)(C) 

of the Act, critical habitat shall not 

include the entire geographical area 

which can be occupied by the species 

unless otherwise determined by the 

Secretary. In developing the proposed 

rule to revise critical habitat, we 

considered the geographical area 

occupied by the subspecies at the time 

of listing, and within that broad 

geographical area, identified those areas 

that, based on the best available 

scientific and commercial data, contain 

the physical and biological features 

essential to the subspecies’ 

conservation. We recognize that our 

designation of critical habitat for the 

San Bernardino kangaroo rat does not 

encompass all known occurrences of 

this subspecies as noted by the 

commenter. Although we are not 

designating all known occurrences of 

the San Bernardino kangaroo rat, we 

believe that our final designation is 

adequate to ensure the conservation of 

this subspecies throughout its extant 

range based on the best available 

information at this time. 

Comment 29: One commenter stated 

that any revisions to designated critical 

habitat as proposed in the June 19, 2007, 

proposed rule (72 FR 33808) are 

premature because they fail to consider 

several ongoing Federal processes that 

directly affect the San Bernardino 

kangaroo rat. The commenter 

specifically identified the Wash Plan (or 

Plan B) as a multiple species HCP 

process occurring in the Santa Ana 

River wash area, to address conservation 


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of and provide incidental take coverage 

for the San Bernardino kangaroo rat. 

The commenter also mentioned that the 

U.S. Army Corps of Engineers (ACOE) is 

preparing a Multiple Species Habitat 

Management Plan, to avoid, minimize, 

or offset impacts associated with the 

Seven Oaks Dam, which would also 

include conservation strategies for the 

San Bernardino kangaroo rat. The 

commenter stated that because Federal, 

State, and local stakeholders have 

invested significant amounts of time in 

both of these processes, it is only proper 

to delay designation of the final critical 

habitat until the completion of these 

processes. 

Our Response: The Service is aware of 

and has considered the Federal projects 

mentioned in the comment above in the 

process of revising designated critical 

habitat; however, we are under a courtordered timeline to submit to the 

Federal Register a final rule revising 

critical habitat for the San Bernardino 

kangaroo rat by October 1, 2008. 

Comment 30: Several commenters 

provided information about the 

proposed critical habitat Unit 2 (Lytle/ 

Cajon Creek wash) along the State Route 

210 freeway (SR–210). Most of these 

comments indicated that areas along the 

freeway should be removed from critical 

habitat because they are developed or 

will soon be developed. Commenters 

suggested removing areas along the 

length of the SR–210, and specifically 

identified 100 feet along the north side 

of SR–210 and the south side of SR–210 

in the vicinity of the Pepper Avenue 

extension project. 

Our Response: The revised critical 

habitat boundary in Unit 2 (Lytle/Cajon 

Creek wash) extends south to Highland 

Avenue, which is north of the new SR– 

210 crossing of Lytle Creek. Much of the 

areas around SR–210 that were 

commented on were not included in the 

proposed revision to critical habitat 

because they do not meet the definition 

of critical habitat. The delineated 

critical habitat boundary lies just north 

of SR–210. We are not designating 

critical habitat from Highland Avenue 

south in the Lytle/Cajon wash. Areas 

designated as critical habitat within 

Lytle Creek are occupied and contain 

the features essential to the conservation 

of the San Bernardino kangaroo rat. 

Comment 31: One commenter 

suggested the Service reject any 

proposal to remove critical habitat 

within the City of Highland in the area 

of Greenspot Road and City Creek/ 

Plunge Creek just east of SR–30. The 

commenter stated that this area is 

viable, occupied habitat. The 

commenter indicated that removing this 

area from the critical habitat designation 

allows for the development of a 

shopping center. The commenter 

indicated that removal of this area from 

the critical habitat designation is not 

based on good science. 

Our Response: The area in the vicinity 

of Greenspot Road between SR–30 and 

Boulder Avenue/Orange Street does not 

support the PCEs required by the San 

Bernardino kangaroo rat in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the subspecies as it 

consists of habitat degraded by mining 

activities and development or contains 

grassy fields. Furthermore, Plunge Creek 

at Orange Street is completely 

channelized and diverted from its 

historical connection with the Santa 

Ana River. We are aware that some areas 

in the vicinity of Greenspot Road not 

included in this designation may be 

sparsely occupied; however, we have 

determined that these areas do not meet 

the definition of critical habitat. There 

is a section of relatively undisturbed 

alluvial scrub habitat east of City Creek 

and SR–30 that we are including in this 

designation. Areas that support 

populations, but are outside the critical 

habitat designation, will continue to be 

subject to conservation actions we 

implement under section 7(a)(1) of the 

Act. Any proposed activity, including 

the proposed shopping center 

mentioned in the comment would also 

be subject to the regulatory protections 

afforded by the section 7(a)(2) jeopardy 

standard, if a Federal nexus is involved, 

and the prohibitions of section 9 of the 

Act. 

Comment 32: One commenter stated it 

is reasonably foreseeable that the 

proposed critical habitat will, if 

approved, result in significant adverse 

impacts to the San Bernardino kangaroo 

rat. For this reason, the commenter 

encouraged the Service to reconsider its 

position regarding the National 

Environmental Policy Act (NEPA) and 

prepare environmental analyses as 

defined by NEPA before approving this 

reduction. 

Our Response: It is our position that, 

outside the jurisdiction of the Circuit 

Court of Appeals 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 in the courts of the 

Ninth Circuit Court of Appeals (Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied 516 U.S. 1042 

(1996)). 

Comment 33: One commenter stated 

that due to climate change in the future, 

the San Bernardino kangaroo rat will 

move slowly up the Lytle and Cajon 

Creek wash area instead of going further 

south. 

Our Response: We did not address 

potential impacts of global climate 

change on this subspecies in the 

proposed rule because we are not 

currently aware of any subspeciesspecific or geographic-specific 

information on this potential threat. 

While we do not deny that global 

climate change is occurring, we cannot 

predict what areas might be important 

for this subspecies in light of future 

climate changes without on-the-ground 

evidence documenting range shift 

patterns in San Bernardino kangaroo rat 

populations. The commenter expressed 

a general concern for the effects of 

climate change on the San Bernardino 

kangaroo rat, but did not provide 

evidence supporting a possible range 

shift for this subspecies. Should 

additional data become available, we 

may revise this critical habitat 

designation subject to available funding 

and other conservation priorities. 

Comment 34: One commenter 

suggested that the Etiwanda fan needs to 

be retained because it is currently 

occupied and provides recovery 

opportunities for the subspecies. 

Our Response: The Etiwanda fan area 

is not included in this revision to 

critical habitat because we have 

determined that this area does not meet 

the definition of critical habitat. The 

area is significantly degraded, largely 

unoccupied, and does not contain the 

physical and biological features 

essential to the conservation of the San 

Bernardino kangaroo rat. We believe 

that our designation of critical habitat 

contains the areas necessary for the 

recovery and long-term conservation of 

this subspecies without the inclusion of 

the Etiwanda fan. 

Comments From Other Federal Agencies 

Comment 35: The U.S. Forest Service 

(USFS) commented that they oppose the 

designation of critical habitat for the 

San Bernardino kangaroo rat on 

National Forest lands. The USFS further 

stated that the San Bernardino National 

Forest (SBNF) recently revised its Land 

and Resource Management Plan 

(LRMP), and management direction was 

incorporated that the USFS believes 

provides sufficient protection and 

management for the San Bernardino 

kangaroo rat and its habitat. They also 

stated that the Service concurred that 

these conservation measures provide 

protection for this subspecies when the 

Service issued a non-jeopardy biological 


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opinion on the LRMP in 2005 (Service 

2005, p. 175). The USFS believes that no 

additional benefit to, or protection for, 

this subspecies would occur as a result 

of critical habitat designation of 

National Forest lands, it is simply not 

needed in order to conserve this 

subspecies. The USFS also stated that it 

currently has in place ‘‘special 

management considerations or 

protection’’ for this subspecies, and that 

it does not need any additional 

considerations or protection that critical 

habitat designation of National Forest 

lands might provide. 

The USFS also commented that 

designation of critical habitat identified 

in the proposed rule would 

unnecessarily add to the USFS 

workload by requiring them to conduct 

a separate analysis and make a 

determination of effect for designated 

critical habitat when consulting under 

section 7 of the Act. 

Our Response: We determined that 

National Forest lands contain physical 

and biological features essential to the 

conservation of the San Bernardino 

kangaroo rat, and therefore, meet the 

definition of critical habitat (see 

‘‘Criteria Used To Identify Critical 

Habitat’’ section below). We 

acknowledge that the revised LRMP will 

benefit the San Bernardino kangaroo rat 

and its habitat. The LRMP contains 

general provisions for species 

conservation and suggests specific 

management and conservation actions 

that will benefit this species and the 

physical and biological features 

essential to its conservation. 

Implementation of the LRMP should 

address known threats to this species on 

National Forest lands. We appreciate 

and commend the efforts of the USFS to 

conserve federally listed species on 

their lands. 

The Secretary has the discretion to 

exclude an area from critical habitat 

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

taking into consideration the economic 

impact, the impact on national security, 

and any other relevant impact if he 

determines that the benefits of such 

exclusion outweigh the benefits of 

designating such area as critical habitat, 

unless he determines that the exclusion 

would result in the extinction of the 

species concerned. We considered the 

request from the USFS that we exclude 

their lands because it would 

unnecessarily add work in the future to 

determine the effect regarding critical 

habitat for actions on their lands and the 

fact that they had already completed 

consultation under section 7(a)(2) of the 

Act on their revised LRMP. 

As part of our section 7 consultation 

with the USFS on the SBNF LRMP, the 

USFS has already consulted on various 

activities carried out on National Forest 

lands including: Roads and trail 

management; recreation management; 

special use permit administration; 

administrative infrastructure; fire and 

fuels management; livestock grazing and 

range management; minerals 

management; and law enforcement. In 

our 2005 biological opinion on the 

LRMP, we determined that 

implementation of the plan was not 

likely to jeopardize the continued 

existence of the San Bernardino 

kangaroo rat or adversely modify critical 

habitat designated in 2002 for this 

subspecies. Since the USFS has already 

consulted with us on potential impacts 

to critical habitat related to the activities 

outlined in the LRMP, the designation 

of revised critical habitat should not 

require additional consultation for those 

activities. 

Based on the record before us, we 

have elected not to exclude these lands 

and are designating National Forest 

lands that meet the definition of critical 

habitat for the San Bernardino kangaroo 

rat. We will continue to consider on a 

case-by-case basis in future critical 

habitat rules whether to exclude 

particular Federal lands from such 

designation when we determine that the 

benefits of such exclusion outweigh the 

benefits of their inclusion. 

Comments Related to the Draft 

Economic Analysis 

Comment 36: One commenter stated 

the Service needs to include all 

occupied and unoccupied, historical 

habitat in the economic analysis (and 

final critical habitat), and not rely on the 

flawed draft critical habitat as the basis 

for the economic analysis. 

Our Response: We believe our final 

designation accurately describes all 

specific areas meeting the definition of 

critical habitat for the San Bernardino 

kangaroo rat. As discussed in the 

‘‘Criteria Used To Identify Critical 

Habitat’’ section of this final rule and 

response to comments 3 and 6 above, 

we delineated critical habitat for the San 

Bernardino kangaroo rat using the 

following criteria: (1) Areas occupied by 

the subspecies at the time of listing, and 

currently occupied, within the historical 

range of the subspecies (2) areas 

retaining fluvial dynamics containing 

one or more of the PCEs for the 

subspecies; (3) areas supporting a core 

population of the subspecies; and (4) 

areas demographically disconnected 

from the largest populations, but which 

may be important for the long-term 

recovery of the subspecies. Application 

of these criteria results in the 

determination of the physical and 

biological features that are essential to 

the conservation of this subspecies, 

identified as the species’ PCEs laid out 

in the appropriate quantity and spatial 

arrangement. Thus, not all areas 

supporting the identified PCEs will 

meet the definition of critical habitat. 

We recognize that our designation 

does not encompass all known 

occurrences of this subspecies as noted 

by the commenter. Specifically, we did 

not include in the final designation 

small, isolated areas of degraded habitat 

or areas devoid of fluvial processes 

because such areas likely only support 

unsustainable populations that would 

not contribute to the recovery of the 

subspecies. Further, we designate 

critical habitat in areas outside the 

geographical area presently occupied by 

a species only when a designation 

limited to its present range would be 

inadequate to ensure the conservation of 

the species (50 CFR 424.12(e)). 

Accordingly, when the best scientific 

and commercial data do not 

demonstrate that the conservation needs 

of the species require designation of 

critical habitat outside of occupied 

areas, we will not designate critical 

habitat outside the geographical area 

occupied by the species. Although we 

are not designating all known 

occurrences of the San Bernardino 

kangaroo rat, we believe the areas we 

have identified as meeting the definition 

of critical habitat, and which are 

included in the final revised critical 

habitat designation, are adequate to 

ensure the conservation of the 

subspecies throughout its extant range. 

Species that are protected across their 

ranges are expected to have lower 

likelihoods of extinction (Soule and 

Simberloff 1986, pp. 32–35; Scott et al. 

2001, pp. 1297–1300); we are 

designating multiple locations across 

the range of the subspecies to prevent 

range collapse. 

We recognize that the designation of 

critical habitat may not include all of 

the habitat that may eventually be 

determined to be necessary for the 

recovery of the subspecies, and critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not contribute to 

recovery. We do not agree that the 

proposed designation is flawed, and 

maintain it was appropriate to base the 

draft economic analysis on the areas 

included in the proposed rule. 

Comment 37: One commenter asserts 

that the Service must look only at the 

incremental cost of the proposed 

designation and not at the costs 

attributable to listing alone when 

considering exclusion of habitat areas. 


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Our Response: The U.S. Office of 

Management and Budget’s (OMB) 

guidelines for conducting economic 

analysis of regulations direct Federal 

agencies to measure the costs of a 

regulatory action against a baseline, 

which it defines as the ‘‘best assessment 

of the way the world would look absent 

the proposed action.’’ In other words, 

the baseline includes the existing 

regulatory and socio-economic burden 

imposed on landowners, managers, or 

other resource users potentially affected 

by the designation of critical habitat. 

Impacts that are incremental to that 

baseline (i.e., occurring over and above 

existing constraints) are attributable to 

the proposed regulation. Significant 

debate has occurred regarding whether 

assessing the impacts of the Service’s 

proposed regulations using this baseline 

approach is appropriate in the context 

of critical habitat designations. 

In order to address the divergent 

opinions of the courts and provide the 

most complete information to decisionmakers, the economic analysis reports 

both: (a) The baseline impacts of SBKR 

conservation from protections afforded 

the species absent critical habitat 

designation; and (b) the estimated 

incremental impacts precipitated 

specifically by the designation of critical 

habitat for the species. Summed, these 

two types of impacts comprise the fully 

co-extensive impacts of San Bernardino 

kangaroo rat conservation in areas 

considered for critical habitat 

designation. 

Incremental effects of critical habitat 

designation are determined using the 

Service’s December 9, 2004, interim 

guidance on ‘‘Application of the 

‘Destruction or Adverse Modification’ 

Standard Under Section 7(a)(2) of the 

Endangered Species Act’’ and 

information regarding what potential 

consultations and project modifications 

may potentially occur as a result of 

critical habitat designation over and 

above those associated with the listing. 

In Gifford Pinchot Task Force v. United 

States Fish and Wildlife Service, the 

Ninth Circuit invalidated the Service’s 

regulation defining destruction or 

adverse modification of critical habitat, 

and the Service no longer relies 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, the 

Service determines destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

to serve its intended conservation role 

for the species. A detailed description of 

the methodology used to define baseline 

and incremental impacts is provided 

later in this section. 

Comment 38: Two commenters 

request that the Service estimate the 

economic benefits of critical habitat 

designation, including positive health 

effects associated with foregone air 

pollution, water conservation, open 

space preservation, protection of other 

species, and savings from reduced flood 

plain development. 

Our Response: Under Executive Order 

12866, OMB directs Federal agencies to 

provide an assessment of both the social 

costs and benefits of proposed 

regulatory actions. 22 OMB’s Circular 

A–4 distinguishes two types of 

economic benefits: direct benefits and 

ancillary benefits. Ancillary benefits are 

defined as favorable impacts of a 

rulemaking that are typically unrelated, 

or secondary, to the statutory purpose 

(i.e., direct benefits) of the rulemaking. 

In the context of critical habitat, the 

primary purpose of the rulemaking (i.e., 

the direct benefit) is the potential to 

enhance conservation of the species. 

The published economics literature has 

documented that social welfare benefits 

can result from the conservation of 

endangered and threatened species. In 

its guidance for implementing Executive 

Order 12866, OMB acknowledges that it 

may not be feasible to monetize, or even 

quantify, the benefits of environmental 

regulations due to either an absence of 

defensible, relevant studies or a lack of 

resources on the implementing agency’s 

part to conduct new research. Rather 

than rely on economic measures, the 

Service believes that direct benefits of 

the proposed rule are best expressed in 

biological terms that can be weighed 

against the expected cost impacts of the 

rulemaking. 

Critical habitat designation may also 

generate ancillary benefits. Critical 

habitat aids in the conservation of 

species specifically by protecting the 

primary constituent elements on which 

the species depends. To this end, 

critical habitat designation can result in 

maintenance of particular 

environmental conditions that may 

generate other social benefits aside from 

the preservation of the species. That is, 

management actions undertaken to 

conserve a species or habitat may have 

coincidental, positive social welfare 

implications (e.g., increased recreational 

opportunities in a region). Although not 

the primary purpose of critical habitat, 

ancillary benefits may result in gains in 

employment, output, or income that 

may offset the direct, negative impacts 

to a region’s economy resulting from 

actions to conserve a species or its 

habitat. 

It is often difficult to evaluate the 

ancillary benefits of critical habitat 

designation. To the extent that ancillary 

benefits of the rulemaking may be 

captured by the market through an 

identifiable shift in resource allocation, 

they are factored into the overall 

economic impact assessment in this 

report. For example, if habitat preserves 

are created to protect a species, the 

value of existing residential property 

adjacent to those preserves may 

increase, resulting in a measurable 

positive impact. Where data are 

available, this analysis attempts to 

capture the net economic impact (i.e., 

the increased regulatory burden less any 

discernable offsetting market gains), of 

species conservation efforts imposed on 

regulated entities and the regional 

economy. 

Comment 39: One commenter 

expressed concern that the economic 

analysis relies too heavily on economic 

modeling to predict the impacts of the 

proposed rule on development. The 

economic analysis does not account for 

local factors, such as the presence of 

floodplains in San Bernardino kangaroo 

rat habitat and a slow housing market, 

which will depress development 

regardless of the critical habitat 

designation. In particular, other Federal 

laws and flood insurance policies, state 

law, and local land use policies 

generally prohibit development in 

floodplains. 

Our Response: As described in 

Appendix D, Section D.2 of the DEA, 

the analysis relies on growth projection 

data provided by the Southern 

California Association of Governments 

(SCAG), which is widely regarded as the 

most reliable and up-to-date source of 

this information. 

Section 3.3.3.2 of the DEA describes 

the geographic scope of the analysis of 

impacts on development. The analysis 

considers the impacts on projected 

development in all privately owned, 

unprotected lands within the area 

proposed for final critical habitat 

designation. When projecting growth 

within the area of proposed critical 

habitat, flood plains were removed from 

the area of the analysis for the reasons 

expressed by the commenter. However, 

portions of the proposed critical habitat 

are located in areas outside of the 

floodplain boundaries. The area of 

proposed critical habitat includes 

uplands and low-lying areas that are not 

in the floodplain. 

Comment 40: One commenter argues 

that there is no basis or evidence that 

the costs of protecting the San 

Bernardino kangaroo rat will increase to 

$10.6 million per year. 


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Our Response: As shown in Table 

ES–1 of the DEA, the baseline cost of 

protecting the San Bernardino kangaroo 

rat and its habitat is projected to be 

$15.2 million on an annualized basis. 

Additionally, incremental costs 

attributable to the designation of critical 

habitat are predicted to total $4.3 

million on an annualized basis. It is 

unclear how the commenter’s estimate 

of $10.6 million per year was obtained. 

As discussed on pages 2–3 and 2–7 of 

the DEA, the baseline costs are driven 

by foregone revenues to Eastern 

Municipal Water District of scaling back 

the Hemet/San Jacinto Recharge and 

Recovery Program by 30,000 acre feet 

per year. The costs associated with these 

activities are based on information 

provided by the Director of Engineering 

at Eastern Municipal Water District. The 

impacts of scaling back the groundwater 

recharge program will occur in the 

future; no comparable reduction in 

groundwater recharge occurred in the 

past. Therefore, future annual costs of 

protecting the San Bernardino kangaroo 

rat are expected to be higher than in the 

past. 

Comment 41: One commenter states 

that the DEA grossly inflates 

administrative and project modification 

costs, and cites as an example an 

estimate on page 45 of the DEA that the 

Bureau of Land Management (BLM) will 

spend $200,000 per year to install signs 

and enforce existing closures 

prohibiting off-road vehicle use on BLM 

lands. Furthermore, the commenter 

states that if incurred, these costs 

should not be attributed to the San 

Bernardino kangaroo rat. Finally, the 

commenter asserts that purchasing 

signage will have a positive regional 

effect on the economy that should offset the costs. 

Our Response: The source of the 

commenter’s example is unclear. The 

DEA does not have a page 45 or Section 

4–5, nor does it estimate the costs of 

signage. To address the overall concern 

expressed in the comment, the DEA 

analyzes how entities will alter their 

behavior to conserve the San Bernardino 

kangaroo rat. If an agency will 

undertake a conservation measure for 

the benefit of the San Bernardino 

kangaroo rat, then the cost of that action 

is considered attributable to the San 

Bernardino kangaroo rat. Allocating 

economic resources to the conservation 

measure and away from other activities 

represents an opportunity cost. 

Conservation measures may have 

positive distributional effects; however, 

paying for the conservation measure 

essentially transfers resources away 

from other entities that would have 

incurred the distributional gains. 

Comment 42: One commenter stated 

that the DEA does not address any of the 

economic benefits of the designation of 

critical habitat. 

Our Response: See our response to 

comment 38 above. 

Comment 43: One commenter was 

concerned that the DEA does not 

analyze the economic impacts of the 

lands the Service added to the critical 

habitat designation. 

Our Response: The Addendum to the 

Economic Analysis of Critical Habitat 

Designation for San Bernardino 

Kangaroo Rat, which analyzes the 

additional lands proposed for critical 

habitat designation, was made available 

to the public for review and comment 

on July 29, 2008. 

Comment 44: One commenter noted 

that the housing projections in the DEA 

do not account for LDC plans to develop 

5,800 houses in Unit 2. 

Our Response: We revised the 

development projections in the Final 

Economic Analysis (FEA) (see pages 2– 

11 to 2–15 and pages 3–4 to 3–11 of the 

FEA) to account for LDC’s planned 

development in Unit 2. 

Comment 45: Two commenters 

explained that the DEA significantly 

underestimates economic impacts in 

Unit 2 because it does not account for 

LDC’s development plans. 

Our Response: We recalculated 

impacts in the FEA to account for LDC’s 

home development projections. See 

pages 2–14 to 2–15 and pages 3–10 to 

3–11 of the FEA for the revised impacts 

in Unit 2. 

Comment 46: Two commenters 

pointed out that LDC is intending to 

develop 647 acres of its property that is 

mostly within upland San Bernardino 

kangaroo rat habitat. According to the 

commenter, designation of critical 

habitat on these 647 acres would place 

uncertainty over LDC’s economic use 

and development potential. 

Our Response: The FEA includes all 

costs associated with the impact of 

critical habitat on LDC’s 647 acres (see 

pages 2–14 and 3–10 of the FEA). The 

economic analysis accounts for lost land 

values, delay, and other costs related to 

regulatory uncertainty. 

Comment 47: One commenter argued 

that the DEA incorrectly assumes that 

there is no limitation on the stock of 

land available for mitigation purposes. 

The commenter suggested that the DEA 

will need to either identify the location 

and amount of suitable San Bernardino 

kangaroo rat habitat that is available for 

use as future San Bernardino kangaroo 

rat habitat mitigation land or the 

analysis in the DEA will need to be 

revised to factor in the true effects of 

there being only a small and finite 

amount of suitable San Bernardino 

kangaroo rat habitat available for use as 

mitigation land. 

Our Response: While we agree that 

only a finite amount of San Bernardino 

kangaroo rat habitat exists, there is 

sufficient evidence from conservation 

banks (see pages 2–11 to 2–12 of the 

FEA) that ample land exists within and 

outside of conservation banks to 

accommodate potential future 

compensation for impacts to the San 

Bernardino kangaroo rat and its habitat. 

Comment 48: One commenter 

asserted the DEA incorrectly estimates 

the per acre cost of San Bernardino 

kangaroo rat mitigation habitat. The 

commenter cited evidence that the cost 

of mitigation land has gone up in the 

last ten years. The commenter reasoned 

that one can expect the cost of 

mitigation land to continue to rise in the 

future. 

Our Response: We consulted with 

local conservation bank owners and 

consultants familiar with the area to 

determine the likely future cost of 

conservation bank credits (see footnote 

56 in the DEA). We used the best 

available conservation bank prices to 

estimate the future costs of 

conservation. We confirmed these prices 

with conservation bank owners for the 

FEA (see page 2–12 of the FEA). 

Comment 49: A commenter stated that 

the evaluation of the economic cost of 

this proposed designation in the DEA is 

limited by defining the time period of 

the economic analysis as the next 22 

years. 

Our Response: As explained on page 

1–17 of the DEA, the economic analysis 

calculates impacts based on activities 

that are ‘‘reasonably foreseeable.’’ The 

standard framework for economic 

analyses calculates impacts in a twenty 

year timeframe. Future impacts were 

calculated in the DEA through the year 

2030 to be consistent with Southern 

California Association of Governments 

projections. 

Comment 50: A commenter criticized 

the DEA for overvaluing the impacts of 

critical habitat. The commenter asserts 

that all of the costs would be required 

even if critical habitat had not been 

designated because the San Bernardino 

kangaroo rat currently lives in those 

areas. 

Our Response: We disagree with the 

commenter’s assertion that all potential 

costs would be required even without 

critical habitat. The DEA quantifies the 

baseline impacts, defined as those 

future impacts that result from listing 

and other conservation efforts for the 

San Bernardino kangaroo rat. Baseline 

impacts include costs that would be 

required because the San Bernardino 


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kangaroo rat is found in the area. The 

DEA also quantifies incremental 

impacts, which are impacts that would 

not exist but for the designation of 

critical habitat. These costs occur above 

and beyond those associated with San 

Bernardino kangaroo rats living in the 

area. 

Comment 51: One commenter pointed 

to page 11 of the Draft Addendum to the 

Economic Analysis, stating that a 

proponent agency does not have the 

legal authority to determine if a project 

will adversely affect a federally 

endangered species or its habitat. The 

commenter noted that these 

determinations are required to have the 

Service’s concurrence. 

Our Response: The commenter was 

concerned with the following passage 

on page 11 of the Draft Addendum: 

‘‘[San Bernardino County Flood Control 

District (SBCFCD)] maintains in-house 

biologists who review all proposed 

projects to determine whether the 

project may affect the San Bernardino 

kangaroo rat or its habitat. San 

Bernardino County Flood Control 

District self-regulates by avoiding 

projects in critical habitat that the 

biologists determine may adversely 

affect the San Bernardino kangaroo rat 

or its habitat. If SBCFCD determines that 

the project is warranted despite the 

potential adverse effects to the San 

Bernardino kangaroo rat (e.g., if there is 

a potential for substantial flood 

damage), then SBCFCD will undertake 

the project and consult with the 

Service.’’ 

As explained in this passage, SBCFCD 

avoids projects that it thinks may 

warrant consultation with the Service 

for impacts to the San Bernardino 

kangaroo rat or its habitat. San 

Bernardino County Flood Control 

District consults with the Service when 

it undertakes a project in an area 

occupied by San Bernardino kangaroo 

rats or within the San Bernardino 

kangaroo rat critical habitat boundaries. 

San Bernardino County Flood Control 

District does not determine if a project 

will or will not adversely affect a 

federally endangered species or its 

habitat independently from the Service. 

Summary of Changes From the 2002 

Critical Habitat Designation 

We stated in our April 23, 2002 rule 

that we designated ‘‘33,295 ac (13,485 

ha)’’ of critical habitat for the San 

Bernardino kangaroo rat. When 

corrected for summing, rounding, and 

conversion errors, the 2002 designation 

of critical habitat totaled 33,291 ac 

(13,472 ha). The areas identified in this 

final rule constitute a revision to the 

2002 designation. In this final rule we 

are designating 7,779 ac (3,148 ha) of 

land in Riverside and San Bernardino 

counties, California. Below we describe 

the changes in each unit between the 

2002 final critical habitat rule, the 2007 

revised proposed critical habitat rule, 

and this 2008 final revised critical 

habitat rule for the San Bernardino 

kangaroo rat (summarized in Table 1). 

Discrepancies in reported acreages 

between the 2002 designation and this 

final revision are due to refinements in 

our ability to more precisely calculate 

acreages. The entire final revised critical 

habitat designation (i.e., 7,779 ac (3,148 

ha)) is contained within the area 

included in the 2002 final critical 

habitat designation. 

Our revised critical habitat 

designation is substantially smaller than 

the existing designation. Updated 

information that became available to us 

in the five years since the previous 

designation indicates that we 

erroneously designated some areas. 

Improved and updated biological 

information submitted to our office and 

gained during site visits in December 

2006 and January 2007 allowed us to: 

(1) Revise the criteria used to identify 

critical habitat and focus attention on 

core populations in undisturbed habitat 

with retained fluvial dynamics; (2) more 

specifically define and map areas 

supporting the physical or biological 

features for this subspecies; and (3) 

precisely ground-truth areas included in 

the 2002 critical habitat designation. As 

described in detail below, our review of 

updated information led us to revise our 

criteria used to identify critical habitat 

(see ‘‘Criteria Used To Identify Critical 

Habitat’’ section) and resulted in our 

removal of several areas that were 

previously designated as we determined 

that these areas do not meet the 

definition of critical habitat. 

The 2000 proposed rule and the 2002 

critical habitat designation describe the 

geographical area occupied by the San 

Bernardino kangaroo rat at the time it 

was listed in 1998, including the Santa 

Ana River, Lytle Creek, Cajon Creek, 

San Jacinto River, City Creek, Etiwanda 

fan and wash, Reche Canyon and South 

Bloomington. All units designated as 

critical habitat in 2002 (i.e., Santa Ana 

River, Lytle/Cajon/Cable creeks, San 

Jacinto River/Bautista Creek, and 

Etiwanda fan) were considered 

occupied at the time of listing and 

designation. The background section of 

the 2002 critical habitat designation 

provides justification explaining how 

the original listing rule significantly 

underestimated the amount of area 

occupied by the subspecies at the time 

of listing and concludes that a minimum 

of 32,507 ac (as mathematically 

converted), or 13,155 ha, were occupied 

at the time of listing. The criteria 

utilized for the 2002 designation 

identified areas that supported few 

occurrence records for inclusion in the 

designation. We have now determined, 

based on the best currently available 

information, that such areas of low 

density occupation (or sporadic 

occupancy) are not likely to contribute 

to the long-term conservation of this 

subspecies as they do not support core 

populations, are not capable of 

supporting a core population in the near 

future, and they provide little protection 

against stochastic events. Areas that 

contain the physical and biological 

features that are essential to the 

conservation of this subspecies, 

identified as the subspecies’ PCEs laid 

out in the appropriate quantity and 

spatial arrangement, are those areas 

capable of supporting a core population 

of San Bernardino kangaroo rats and 

providing protection against stochastic 

events. Therefore, some areas 

supporting low density or sporadic 

occupancy designated in 2002 were 

removed from this revised designation. 

Finally, we employed refined mapping 

techniques using updated aerial imagery 

in the current revision, which allowed 

us to more precisely map areas that 

contain PCEs. This refined approach 

allowed us to remove areas that do not 

meet the definition of critical habitat. 

The main differences in this revised 

designation compared to the 2002 

critical habitat designation include the 

following: 

(1) On the basis of our new analyses 

involving the factors described above, 

we determined that portions of the 2002 

(i.e., existing) Unit 1 (Santa Ana River), 

Unit 2 (Lytle and Cajon Creeks), Unit 3 

(San Jacinto River), and all of Unit 4 

(Etiwanda Alluvial Fan and Wash) do 

not contain PCEs in the appropriate 

quantity and spatial arrangement 

essential to the conservation of the San 

Bernardino kangaroo rat. Therefore, we 

are not including these areas in our 

revision to critical habitat. The 

following paragraphs provide unit by 

unit explanations why areas previously 

designated as critical habitat do not 

meet the definition of critical habitat for 

the San Bernardino kangaroo rat. 

We removed approximately 4,658 ac 

(1,885 ha) within Unit 1 (Santa Ana 

River) from our revision to critical 

habitat, largely because these areas do 

not contain the physical and biological 

features that are essential to the 

conservation of this subspecies, 

identified as the subspecies’ PCEs laid 

out in the appropriate quantity and 

spatial arrangement. Below we describe 

the six general areas removed and the 


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habitat status in those areas. Occurrence 

data from these six areas indicate that 

none of these areas currently support or 

are capable of supporting core 

populations in the near future. The 

inability to support a core population 

further underscores the habitat data 

indicating that these areas do not 

contain the physical and biological 

features that are essential to the 

conservation of the San Bernardino 

kangaroo rat. First, areas along Mill 

Creek, especially to the north, do not 

provide suitable habitat for this 

subspecies. Second, a flood control 

levee south of Mill Creek cut off habitat 

from fluvial processes, which resulted 

in overgrown vegetation and water 

retention basins that are unsuitable 

habitat conditions for the subspecies. 

Third, the stretch of the Santa Ana River 

below Seven Oaks Dam and areas to the 

north and west of a large barrow pit are 

cut off from fluvial processes and water 

retention basins have been constructed 

in the area. Fourth, a large area within 

the 2002 critical habitat designation 

near Plunge Creek extending south and 

west to the confluence of City Creek 

with the Santa Ana River is degraded 

due to mining operations, flood control 

structures (and the subsequent loss of 

fluvial influence necessary to maintain 

habitat), and water retention basins. 

Fifth, the habitat downstream of 

Tippecanoe Avenue Bridge is heavily 

channelized with steep banks inhibiting 

the use of upland habitat; we do not 

have data indicating that this area is 

occupied. Sixth, there are also a number 

of smaller areas of degraded habitat 

around the periphery of the 2002 critical 

habitat designation that are not included 

in this revision to critical habitat 

because these areas do not contain the 

physical and biological features 

essential to the conservation of this 

subspecies. 

We removed approximately 9,284 ac 

(3,757 ha) within Unit 2 (Lytle and 

Cajon Creeks) from our revision to 

critical habitat, largely because these 

areas do not contain the physical and 

biological features that are essential to 

the conservation of this subspecies. 

Below we describe the six general areas 

removed and the habitat status in those 

areas. Occurrence data from these six 

areas indicate that none of these areas 

currently support or are capable of 

supporting core populations in the near 

future. The inability to support a core 

population further underscores the 

habitat data indicating that these areas 

do not contain the physical and 

biological features that are essential to 

the conservation of the San Bernardino 

kangaroo rat. First, one separate parcel 

northeast of the main Lytle/Cajon Creek 

unit (labeled as Unit 2 B in the 2002 

critical habitat rule) contains habitat 

that is degraded and this area is largely 

unoccupied. Second, the southernmost 

portion of Lytle Creek contains habitat 

that is degraded through surface mining 

and flood control structures, making 

this area unsuitable for the subspecies. 

Third, the upper reaches of both Lytle 

and Cajon Creeks contain large rocky 

substrates that do not provide habitat for 

this subspecies and we have no recent 

occurrence data for these upstream 

areas. Fourth, portions of habitat along 

the Lytle Creek arm are degraded from 

sand and gravel mining operations and 

associated infrastructure. Fifth, after 

formal consultation with the Service 

was completed, approximately 670 ac 

(271 ha) within the 2002 critical habitat 

designation that is north of Lytle Creek 

and east of I–15 is currently under 

development for the Lytle Creek North 

development project. Sixth, a large 

expanse of a remnant flood plain south 

of Lytle Creek and I–15 and west of 

Riverside Avenue is partially developed 

and does not contain the PCEs for the 

subspecies. It was suggested in the 2002 

critical habitat designation that this area 

could provide connectivity with the 

Etiwanda fan; however, this area is void 

of fluvial influence, does not support a 

core population, and is cut off from 

Lytle Creek and the Etiwanda fan by 

extensive roadways. Therefore, we 

believe that demographic or genetic 

connectivity through the remnant flood 

plain south of Lytle Creek is unlikely. 

Because these areas do not contain the 

physical and biological features that are 

essential to the conservation of this 

subspecies, we are not including them 

in the revision to critical habitat. 

A portion of a separate parcel 

designated in 2002 as part of Unit 2 is 

now designated as Unit 4 (Cable Creek 

Wash) in this revised critical habitat 

designation (see Table 1 and the Unit 

Descriptions section). 

We removed approximately 4,757 ac 

(1,925 ha) within Unit 3 (San Jacinto 

River) from our revision to critical 

habitat, largely because these areas do 

not contain the physical and biological 

features that are essential to the 

conservation of this subspecies. Below 

we describe the five general areas 

removed and the habitat status in those 

areas. Occurrence data from these five 

areas also indicate that none of these 

areas currently support or are capable of 

supporting core populations in the near 

future. The inability to support a core 

population further underscores the 

habitat data indicating that these areas 

do not contain the physical and 

biological features that are essential to 

the conservation of the San Bernardino 

kangaroo rat. First, portions of Bautista 

Creek and the downstream reach of the 

San Jacinto River are largely 

channelized and do not contain the 

PCEs or provide suitable habitat for the 

San Bernardino kangaroo rat. Second, 

we included in the 2002 critical habitat 

designation the downstream portion of 

the San Jacinto River (downstream of 

State Route 79) because we believed the 

area contained essential physical and 

biological features that would reduce 

risks to the subspecies from stochastic 

events. Based on our evaluation of the 

best scientific information currently 

available, we no longer consider this 

area to meet the definition of critical 

habitat because site visits have revealed 

that this channelized section of the San 

Jacinto River is less alluvial and more 

riparian in nature, and thus is unlikely 

to reduce the risks from stochastic 

events and does not contain the 

physical and biological features 

essential to the conservation of this 

subspecies. Third, the channelized areas 

of the San Jacinto River and Bautista 

Creek prevent connectivity with the 

core population in the San Jacinto wash. 

Fourth, at the time of the 2002 critical 

habitat rule, we believed that Tribal 

lands in Unit 3 were occupied, despite 

a lack of occurrence data for these areas. 

We believed this because the Tribal 

lands were continuous with adjacent 

areas of habitat in the San Jacinto River 

known to be occupied; however, we still 

do not have occurrence data or habitat 

condition data for the two tributaries on 

Tribal land north of the San Jacinto 

wash and are not designating critical 

habitat on Tribal lands in this revised 

critical habitat designation (see 

‘‘Government-to-Government 

Relationship with Tribes’’ section). 

Fifth, in the eastern most (upstream) 

portion of the San Jacinto River that was 

designated as critical habitat in 2002, 

we do not have occurrence data to 

indicate that the area is occupied or 

supports a core population of San 

Bernardino kangaroo rats. Based on the 

best scientific information currently 

available, we no longer believe these 

areas contain the physical and 

biological features that are essential to 

the conservation of this subspecies, and 

are not including them in the revision 

to critical habitat. 

A portion of a separate parcel 

designated as part of Unit 3 in 2002 is 

now designated as Unit 5 (Bautista 

Creek) in this revised critical habitat 

designation (see Table 1 and the ‘‘Unit 

Descriptions’’ section). 

We removed approximately 4,820 ac 

(1,951 ha) within Unit 4 (Etiwanda 

Alluvial Fan and Wash) from our 


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revision to critical habitat, largely 

because these areas do not contain the 

physical and biological features that are 

essential to the conservation of this 

subspecies. In the 2002 critical habitat 

rule, we stated that the Etiwanda fan 

was likely occupied by a small remnant 

population of the subspecies, but urban 

development and existing and proposed 

flood control structures will preclude 

the occurrence of future natural fluvial 

processes in portions of the unit. 

Additionally, we stated that despite 

these conditions, the San Bernardino 

kangaroo rat persists in some areas of 

the unit. Since the 2002 critical habitat 

designation, flood control structures and 

urban development have continued to 

alter the natural flood regime of this 

alluvial fan resulting in poor habitat 

conditions. Occurrence data from these 

areas also indicates that none of these 

areas currently support or are capable of 

supporting core populations in the near 

future. The inability to support a core 

population further underscores the 

habitat data indicating that these areas 

do not contain the physical and 

biological features that are essential to 

the conservation of the San Bernardino 

kangaroo rat. Furthermore, site visits 

confirmed that occupied areas within 

this unit do not contain the PCEs in the 

appropriate quantity and spatial 

arrangement necessary to sustain a core 

population of this subspecies into the 

future. Connectivity with the nearest 

core population in Unit 2 is precluded 

by development and roadways. Because 

these areas do not contain the physical 

and biological features that are essential 

to the conservation of this subspecies, 

we are not including them in the 

revision to critical habitat. 

(2) We re-evaluated and revised the 

PCEs as needed in light of applicable 

case law and current Service guidelines 

and policies. We revised the PCEs to 

provide more specificity with regard to 

the location of and necessity for suitable 

soil types, vegetative habitat, and 

upland areas related to the biological 

needs of the subspecies. We also 

included a range of the preferred 

percentage of vegetative cover. We note 

that revisions to the PCEs alone did not 

result in the removal of existing critical 

habitat from this revised critical habitat 

designation, nor did it result in the 

identification of areas outside the 2002 

designation that meet the definition of 

critical habitat. 

(3) In the 2002 critical habitat 

mapping process, we used aerial 

photography at a scale of 1:24,000 and 

2001 digital orthophotography. In the 

process of mapping and delineating 

boundaries for this revised critical 

habitat designation we used USDA 

NAIP 2005, 1 meter True Color Aerial 

Photography. This updated aerial 

imagery allowed us to more accurately 

and precisely delineate boundaries of 

critical habitat. 

(4) In addition to the areas that we 

removed from the 2002 designation in 

this final revision to critical habitat, we 

also excluded approximately 2,917 ac 

(1,180 ha) under section 4(b)(2) of the 

Act (see ‘‘Summary of Changes From the 

2007 Proposed Rule To Revise Critical 

Habitat’’ and ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ sections of this final 

rule for detailed discussion of the 

exclusions). 

TABLE 1—CHANGES BETWEEN THE APRIL 23, 2002, CRITICAL HABITAT DESIGNATION, THE JUNE 19, 2007, PROPOSED

DESIGNATION, AND THIS FINAL REVISED DESIGNATION

Critical habitat unit in 

this final rule County Area identification used in this rule 

2002 designation of 

critical habitat (67 FR 

19812) and ac (ha) 

2007 proposed revision to the critical 

habitat designation 

(72 FR 33808) and 

ac (ha) 

2008 final revised 

critical habitat designation and ac (ha) 

1. Santa Ana River 

Wash.

San Bernardino ......... Plunge Creek ............ All 3 areas included 

in Unit 1; 8,935 ac 

(3,616 ha).

Small section proposed as part of 

Unit 1; 3,623 ac 

(1,466 ha) 3.

All 3 areas included 

as Unit 1; 3,258 ac 

(1,318 ha). 

Mill Creek .................. ditto ........................... Considered not to be 

essential; not proposed 3.

ditto. 

Santa Ana River and 

City Creek.

ditto ........................... Included as part of 

Unit 1; 3,623 ac 

(1,466 ha).

ditto. 

2. Lytle/Cajon Creek 

Wash.

San Bernardino ......... Lytle Creek and 

Cajon Creek.

Both areas included 

in Unit 2; 13,970 ac 

(5,653 ha).

Included as part of 

Unit 2; 4,686 ac 

(1,896 ha).

Included as Unit 2; 

3,421 ac (1,384 

ha). 

Cable Creek .............. ditto ........................... Considered not to be 

essential; not proposed 3.

Included as Unit 4; 

483 ac (195 ha). 

3. San Jacinto River 

Wash.

Riverside ................... San Jacinto River ..... Both areas included 

in Unit 3; 5,565 ac 

(2,252 ha).

Included as Unit 3; 

769 ac (311 ha).

Included as Unit 3; 

506 ac (205 ha). 

Bautista Creek .......... ditto ........................... Considered not to be 

essential; not proposed 3.

Included as Unit 5; 

111 ac (45 ha). 

4. Cable Creek Wash San Bernardino ......... Cable Creek .............. Included as part of 

Unit 2; 13,970 ac 

(5,653 ha).

Considered not to be 

essential; not proposed 3.

Included as Unit 4; 

483 ac (195 ha). 

5. Bautista Creek ....... Riverside ................... Bautista Creek .......... Included as part of 

Unit 3; 769 ac (311 

ha).

Considered not to be 

essential; not proposed 3.

Included as Unit 5; 

111 ac (45 ha). 

Etiwanda Alluvial Fan 1 San Bernardino ......... Etiwanda Alluvial Fan Unit 4; 4,820 ac 

(1,950 ha).

Considered not to be 

essential; not proposed.

Determined not to be 

essential. 


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TABLE 1—CHANGES BETWEEN THE APRIL 23, 2002, CRITICAL HABITAT DESIGNATION, THE JUNE 19, 2007, PROPOSED

DESIGNATION, AND THIS FINAL REVISED DESIGNATION—Continued 

Critical habitat unit in 

this final rule County Area identification used in this rule 

2002 designation of 

critical habitat (67 FR 

19812) and ac (ha) 

2007 proposed revision to the critical 

habitat designation 

(72 FR 33808) and 

ac (ha) 

2008 final revised 

critical habitat designation and ac (ha) 

Totals .................. 33,291 ac 2 (13,472 

ha).

9,078 ac (3,674 ha) .. 7,779 ac (3,148 ha). 

1The Etiwanda Alluvial Fan was considered Unit 4 in the 2002 final critical habitat rule (67 FR 19812); however, the Cable Creek Wash is now 

considered Unit 4 in this final revised critical habitat rule. 2The 2002 rule incorrectly stated that ‘‘33,295 (13,474 ha)’’ were designated. 

3These areas were added to proposed critical habitat in the April 16, 2008, NOA (73 FR 20581). 

Summary of Changes From the 2007 

Proposed Rule To Revise Critical 

Habitat 

The areas identified in this final 

revised rule also constitute a revision of 

the areas we proposed to designate as 

critical habitat for the San Bernardino 

kangaroo rat on June 19, 2007 (72 FR 

33808). In light of substantial public 

comments and a revision of our criteria 

used to identify critical habitat, we 

reevaluated and included in this final 

rule four areas that were not included in 

the 2007 proposed rule. These areas 

(described below) include Mill Creek 

and Plunge Creek in Unit 1, and Cable 

Creek and Bautista Creek in Units 4 and 

5. These additions to proposed critical 

habitat were announced in the April 16, 

2008, NOA (73 FR 20581). The 

reduction in total area from the 2007 

proposed critical habitat designation is 

primarily the result of exclusions of 

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

(described below). The main differences 

between the 2007 proposed critical 

habitat rule and this final rule include 

the following: 

(1) During the first and second 

comment periods for the proposed rule, 

we received significant comments from 

the public, including biologists familiar 

with the San Bernardino kangaroo rat, 

which led us to reevaluate and revise 

our criteria used to identify critical 

habitat. Please see the ‘‘Changes to 

Proposed Revised Critical Habitat’’ 

section of the April 16, 2008, NOA (73 

FR 20581), and the ‘‘Criteria Used To 

Identify Critical Habitat’’ section of this 

final rule for more information on our 

revised criteria. 

(2) During the first and second 

comment periods for the proposed rule, 

we received significant comments from 

the public, including biologists familiar 

with the San Bernardino kangaroo rat, 

on areas essential to the subspecies that 

should be included in the designation. 

As a result of these comments, new 

information received, and revision of 

the criteria used to identify critical 

habitat, we reevaluated the following 

areas: Mill Creek, Plunge Creek 

(including areas providing habitat 

connection between the Plunge Creek 

wash and Santa Ana River wash), Cable 

Creek wash, and Bautista Creek. All of 

these areas are were designated as 

critical habitat for the San Bernardino 

kangaroo rat in 2002 (see 50 CFR 

17.95(a); 67 FR 19812, April 23, 2002); 

however, we did not propose these areas 

as critical habitat in the June 19, 2007, 

proposed revision to critical habitat (72 

FR 33808). Below we describe each area 

we reevaluated, explain why we did not 

include the area in the 2007 proposed 

rule, and explain why we are including 

these areas in the final revised 

designation of critical habitat. 

Mill Creek 

Mill Creek flows into and joins the 

Santa Ana River wash (Unit 1) in the 

eastern side of the unit. We did not 

include the Mill Creek area in the 2007 

proposed rule (72 FR 33808), although 

we indicated that it was considered 

important to the subspecies by 

contributing fluvial dynamics to the 

Santa Ana River wash. At the time of 

the proposed revised rule, we had 

limited survey data to indicate Mill 

Creek was occupied by the San 

Bernardino kangaroo rat. Furthermore, 

we determined this area contained large 

expanses of unsuitable habitat. As such, 

we did not include the majority of lower 

Mill Creek in the June 19, 2007, 

proposed revision to critical habitat. 

During the public comment period, 

we received a number of comments 

highlighting the importance of Mill 

Creek as an area not only occupied by 

the San Bernardino kangaroo rat 

connected to and contiguous with the 

core population in the Santa Ana wash, 

but also indicating that the area contains 

the physical and biological features 

essential to the conservation of this 

subspecies. Upon receiving comments 

from the public about Mill Creek, we 

reevaluated our data in this area. 

Evidence of extensive burrowing 

activity observed by Service biologists 

indicates this area is occupied by 

kangaroo rats, and live-trapping 

confirms that Mill Creek is occupied by 

the San Bernardino kangaroo rat 

subspecies. Based on this information, 

we determined that the reach of Mill 

Creek occupied by the San Bernardino 

kangaroo rat to its confluence with the 

Santa Ana River is important to the 

recovery of the subspecies because it is 

the only large stretch of contiguous, 

occupied habitat for the San Bernardino 

kangaroo rat within Unit 1 that is not 

fragmented by development (e.g., roads, 

aggregate mining pits). Further, we 

confirmed that habitat at Mill Creek is 

connected to and contiguous with 

habitat supporting the core population 

in Unit 1, and therefore, San Bernardino 

kangaroo rats inhabiting Mill Creek are 

part of the Santa Ana River wash core 

population. 

We also received comments about the 

importance of Mill Creek as a source of 

sediment through natural fluvial 

dynamics to the majority of the Santa 

Ana River wash (Unit 1). Existing 

infrastructure (e.g., levees, culverts, 

concrete-lined channels, bridge 

abutments and other fill) affects the 

function of the Santa Ana River and its 

tributaries within the historical and 

current range of this subspecies. As a 

result, the historical floodplain 

dynamics within the upper Santa Ana 

River watershed are permanently altered 

(MEC 2000, pp. 175–176). Periodic 

flooding provides natural scour and 

sediment deposition, decreases 

vegetation density and cover, and 

naturally maintains the alluvial sage 

scrub that supports this subspecies. Mill 

Creek is the only remaining source of 

alluvial sediments remaining within 

Unit 1 that has not been significantly 

altered by flood control structures, 

water diversions, or other activities. 

Although the Santa Ana River is incised 

just downstream from its confluence 

with Mill Creek, floodplain elevations 

downstream (e.g., downstream of Opal 

Street in Mentone) allow overbank scour 


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and sediment deposition during even 

small- to moderate-intensity storms. The 

periodic deposition of sediments from 

Mill Creek helps to naturally maintain 

the soil and alluvial fan sage scrub (i.e., 

the PCEs upon which the survival and 

recovery of the San Bernardino 

kangaroo rat in Unit 1 depend) within 

critical habitat along the Santa Ana 

River as suitable habitat to support the 

core population of San Bernardino 

kangaroo rats within this unit. We 

determined that this area of Mill Creek 

meets the definition of critical habitat, 

and we are including 388 ac (157 ha) of 

Mill Creek in the final revision to 

critical habitat for Unit 1. 

Plunge Creek 

Plunge Creek is located north of the 

main stem of the Santa Ana River in 

Unit 1 and is largely isolated from the 

core population of San Bernardino 

kangaroo rats in the wash by sand and 

gravel mining operations. A portion of 

Plunge Creek was included in the June 

19, 2007, proposed revision to critical 

habitat, but no critical habitat 

connection existed between this area of 

Plunge Creek and other portions of 

proposed Unit 1. 

We did not propose revised critical 

habitat connecting Plunge Creek to other 

critical habitat areas in proposed Unit 1 

because, although lands in this area are 

managed by the Bureau of Land 

Management (BLM), the BLM is 

considering the revision of their South 

Coast Resource Management Plan and 

an exchange of land within their 

existing Area of Critical Environmental 

Concern (ACEC) for lands that are 

privately owned within the Santa Ana 

River wash. Should this exchange occur, 

we anticipate that the Upper Santa Ana 

River Habitat Conservation Plan (USAR 

HCP, also known as ‘‘Plan B’’) would be 

proposed. The land exchange would 

occur to facilitate aggregate mining, 

water conservation, roadway 

improvements, and other activities in 

areas that are now within the ACEC, 

while other, less-disturbed habitat areas 

for the San Bernardino kangaroo rat 

would be conserved through the 

implementation of the USAR HCP. 

Although we have been working with 

the BLM and associated stakeholders on 

the land exchange for many years, we 

have not yet been asked by the BLM to 

formally consult on this action. 

However, during collaboration with the 

BLM and stakeholders in the USAR 

HCP, we agreed upon a potential future 

mining boundary. Our June 19, 2007, 

proposed revision to critical habitat did 

not include any areas identified in this 

collaboration as areas where future 

mining may occur. 

We received significant comment 

from the public highlighting the 

importance of Plunge Creek to the 

conservation of the San Bernardino 

kangaroo rat. Commenters were 

concerned that the proposed revision to 

critical habitat around Plunge Creek 

(which is north of existing and proposed 

mining pits) did not connect to critical 

habitat in the Santa Ana River mainstem 

south of these pits. Plunge Creek is 

extensively modified upstream of 

Greenspot Road by levees and the bridge 

crossing the creek on Greenspot Road, 

and the creek at Orange Street is 

completely channelized and diverted 

from its historical connection with the 

Santa Ana River. However, significant 

sediment deposition occurs 

immediately downstream of the 

Greenspot Road bridge and provides for 

habitat renewal in portions of the 

adjacent WSPA and the reach of Plunge 

Creek from Greenspot Road to its 

diversion at Orange Street. This area of 

relatively undisturbed alluvial scrub is 

occupied by the San Bernardino 

kangaroo rat. Commenters, including 

biologists familiar with the San 

Bernardino kangaroo rat, stated that it is 

important for the persistence of the 

subspecies in Unit 1 that the 

demographic and genetic connectivity 

of populations in Plunge Creek and the 

Santa Ana wash be conserved. 

Based on information received and 

additional analysis of our own data, we 

determined that the population of San 

Bernardino kangaroo rats in Plunge 

Creek is at risk of local extirpation 

without a habitat connection in Unit 1 

to provide for demographic and genetic 

exchange between San Bernardino 

kangaroo rats in Plunge Creek and the 

Santa Ana River main stem area. We are 

including approximately 265 ac (107 ha) 

of occupied habitat in the final revision 

to critical habitat for Unit 1. This 

additional area, which contains the 

physical and biological features 

essential to the conservation of the 

subspecies, provides connectivity 

between Plunge Creek and the core 

population in the Santa Ana River wash. 

Cable Creek Wash 

The Cable Creek wash is located 

northeast of the Lytle/Cajon Creek wash 

(within current Unit 2) on the opposite 

side of Interstate 215 (I–215). This wash, 

although occupied, is isolated from 

proposed Unit 2 by I–215, flood control 

structures, and other development. 

Cable Creek is channelized where it 

approaches the freeway. The concrete 

channel eventually crosses underneath 

I–215 to flow into the Lytle/Cajon wash, 

but the channel precludes the 

movement of individual San Bernardino 

kangaroo rats between these areas. 

Hence, any genetic or demographic 

connection between San Bernardino 

kangaroo rats in Cable Creek wash and 

the Lytle/Cajon wash is likely minimal 

to non-existent. We did not propose 

Cable Creek wash in the June 19, 2007, 

proposed revision to critical habitat 

because of the disconnect between this 

population at Cable Creek and the larger 

population of San Bernardino kangaroo 

rats at Lytle/Cajon Creek. 

During the comment periods for the 

San Bernardino kangaroo rat proposed 

critical habitat revision, we received 

significant comment from the public 

about Cable Creek wash. Commenters 

stated that this wash contains essential 

physical and biological features, retains 

fluvial dynamics, and is one of the few 

areas of occupied San Bernardino 

kangaroo rat habitat within the 

remaining range of the subspecies. 

Further, this area appears large enough 

to support a population of San 

Bernardino kangaroo rats indefinitely, 

despite its disconnection from the core 

population in the Lytle/Cajon Creek 

wash. Based on information received 

and additional analysis of our own data, 

we determined that Cable Creek 

contains quality San Bernardino 

kangaroo rat habitat, and repeated 

positive survey results suggest this area 

supports a self-sustaining population of 

this subspecies. Additionally, we 

received comments suggesting this area 

could be important for the long-term 

conservation of this subspecies in the 

future if population levels in the core 

area of the Lytle/Cajon wash were to 

decrease due to catastrophic events. The 

demographic isolation of Cable Creek 

from Lytle/Cajon Creek occurred 

relatively recently on an evolutionary 

time scale, and therefore, we agree that 

the Cable Creek wash population could 

be utilized to augment recovery of the 

Lytle/Cajon wash population. Based on 

these comments, we revised our criteria 

identifying critical habitat to include 

areas disconnected from core 

population areas that may be important 

for the long-term conservation of the 

subspecies. We have determined that 

approximately 483 ac (195 ha) of land 

in the Cable Creek wash contain the 

physical and biological features 

essential to the conservation of the 

subspecies, and we are designating this 

area in a new critical habitat Unit 4. 

Bautista Creek 

Bautista Creek drains into the San 

Jacinto River wash from the south, 

flowing into an area supporting the core 

population of San Bernardino kangaroo 

rats within the San Jacinto River 

(proposed Unit 3). Bautista Creek is 


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channelized approximately 2 miles (3.2 

kilometers) downstream of the San 

Bernardino National Forest boundary 

and now flows for several miles through 

a 4-sided concrete box channel to its 

confluence with the San Jacinto River. 

This steep-sided channel effectively 

isolates San Bernardino kangaroo rats in 

Bautista Creek from those in the San 

Jacinto River. Minimal genetic 

connectivity may exist between the 

Bautista Creek and San Jacinto River 

populations by way of highly disturbed, 

upland agricultural fields along the 

length of the concrete channel (if those 

agricultural areas are occupied at some 

low level by the subspecies). 

Demographic connectivity of the two 

populations through these highly 

disturbed agricultural areas is unlikely, 

although an occasional individual may 

survive being washed downstream 

through the channel during a high flow 

event. However, such an event is likely 

so rare it is considered relatively 

meaningless to the population in terms 

of demographic or genetic exchange 

between individual animals in Bautista 

Creek and the San Jacinto River. It is 

also unlikely that San Bernardino 

kangaroo rats could successfully migrate 

from the San Jacinto River upstream 

through the concrete channel to the 

Bautista Creek area. Based on this 

information, we did not include 

Bautista Creek in the June 19, 2007, 

proposed revision to critical habitat. 

We received significant comment 

during the public comment periods 

about the unchannelized reaches of 

Bautista Creek that were designated in 

the April 23, 2002, final rule as critical 

habitat (67 FR 19812). These comments 

focused on the unimpeded fluvial 

dynamics that maintain existing 

physical and biological features and 

occupancy by the San Bernardino 

kangaroo rat in this area. It was noted 

that given the extent and quality of 

habitat in this area, the population of 

San Bernardino kangaroo rats in 

Bautista Creek is likely self-sustaining 

in the long-term despite the lack of 

habitat connectivity with the San 

Jacinto River wash. We determined that 

the unchannelized portion of Bautista 

Creek is occupied as documented 

through live-trapping results, and that 

this area retains fluvial dynamics 

maintaining the physical and biological 

features required by the San Bernardino 

kangaroo rat. Additionally, we received 

comments suggesting the Bautista Creek 

population is important for the longterm conservation of the San Bernardino 

kangaroo rat, as it provides a safeguard 

against population declines and local 

extinction in the San Jacinto River wash 

unit (proposed Unit 3). The 

demographic isolation of Bautista Creek 

from the San Jacinto River occurred 

relatively recently on an evolutionary 

time scale, and therefore, we agree that 

the Bautista Creek population could be 

utilized to augment recovery of the San 

Jacinto River wash population. The 

comments we received also highlighted 

the importance of conserving the 

Bautista Creek area as it represents the 

southernmost extent of the range for the 

San Bernardino kangaroo rat. Based in 

part on these comments, we revised our 

criteria identifying critical habitat to 

include disconnected areas that may be 

important for the long-term 

conservation of the subspecies. We have 

determined that approximately 443 ac 

(179 ha) of land in Bautista Creek 

contain the physical and biological 

features essential to the conservation of 

the subspecies, and we are designating 

this area in a new critical habitat Unit 

5. 

In total, we added approximately 

1,579 ac (639 ha) of Federal and private 

land to the June 19, 2007, proposed 

revision to critical habitat for the San 

Bernardino kangaroo rat (Table 2) as 

described in the April 16, 2008, NOA. 

Of these 1,579 ac (639 ha), 

approximately 349 ac (141 ha) are 

excluded from this final critical habitat 

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

Act based on benefits provided to the 

subspecies as a result of partnerships 

that include development of 

management plans discussed below. 

(3) In the 2007 proposed rule, we 

discussed an integrated water recharge 

and recovery program to be 

implemented by Eastern Municipal 

Water District at the confluence of the 

San Jacinto River and Bautista Creek 

within existing critical habitat Unit 3. 

The Service issued a biological opinion 

for this project on November 16, 2006 

(Service 2006, FWS–WRIV–4051.5) 

which found that the action did not 

adversely modify the currently 

designated critical habitat. The project 

would permanently impact 

approximately 39 ac (16 ha) of habitat 

through the construction of well sites in 

upland habitat and groundwater 

recharge basins in the floodplain of the 

San Jacinto River. In the proposed rule 

we stated that we were not proposing 

these areas as revised critical habitat; it 

was anticipated that these areas would 

no longer contain the PCEs upon 

construction of the well sites and 

recharge basins. During the public 

comment periods, we received public 

comment indicating these areas contain 

the essential physical and biological 

features. Also, recent survey data has 

indicated the current population of San 

Bernardino kangaroo rats in these areas 

is larger than previously believed, and 

that project impacts would exceed the 

identified level of anticipated incidental 

take during preconstruction trapping 

within the project site. Formal 

consultation with the Service on the 

Eastern Municipal Water District project 

has been reinitiated, and construction 

within the project site has ceased. 

Because these areas still contain the 

essential physical and biological 

features, we determined that the 39 ac 

(16 ha) Eastern Municipal Water District 

project site within Unit 3 meets the 

definition of critical habitat. However, 

we are excluding these 39 ac (16 ha) 

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

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

Act’’ section of this final rule for a 

detailed discussion of this exclusion). 

(4) We proposed lands covered by the 

WSPA Management Plans for exclusion 

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

determined that the benefits of 

exclusion outweigh the benefits of 

inclusion on these lands; therefore, we 

excluded approximately 751 ac (304 ha) 

of lands in Unit 1 covered by the WSPA 

Management Plans under section 4(b)(2) 

of the Act (see ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section of 

this final rule for a detailed discussion 

of this exclusion). 

(5) We proposed lands covered by the 

Former Norton Air Force Base CMP for 

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

Act. We determined that the benefits of 

exclusion outweigh the benefits of 

inclusion on these lands; therefore, we 

excluded approximately 267 ac (108 ha) 

of lands in Unit 1 covered by the Former 

Norton Air Force Base CMP under 

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

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

Act’’ section of this final rule for a 

detailed discussion of this exclusion). 

(6) We proposed lands covered by the 

Cajon Creek HCMA HEMP for exclusion 

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

reported in the proposed rule that there 

was an acreage discrepancy on the 

actual size of the Cajon Creek HCMA 

HEMP and we proposed to exclude 

approximately 1,271 ac (514 ha) from 

the final revision to critical habitat. 

Following publication of the proposed 

rule, Vulcan Materials Co. (who 

manages the area) re-evaluated the 

original survey data for the Cajon Creek 

HCMA HEMP, and conducted 

additional surveys that demonstrate the 

Cajon Creek HCMA HEMP is 

approximately 1,265 ac (512 ha) in size. 

We determined that the benefits of 

exclusion outweigh the benefits of 

inclusion on these lands; therefore, we 

have excluded approximately 1,265 ac 

(512 ha) of lands in Unit 2 covered by 


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the Cajon Creek HCMA HEMP under 

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

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

Act’’ section of this final rule for a 

detailed discussion of this exclusion). 

(7) We proposed lands covered by the 

Western Riverside County MSHCP for 

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

Act. We determined that the benefits of 

exclusion outweigh the benefits of 

inclusion on these lands; therefore, we 

excluded approximately 595 ac (241 ha) 

of private and permittee-owned Public/ 

Quasi-Public lands in Unit 3 and Unit 

5 covered by the Western Riverside 

County MSHCP under section 4(b)(2) of 

the Act (see ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule for a detailed discussion of this 

exclusion). 

Taking into consideration the above 

additions to the 2007 proposed revision 

to the critical habitat designation, and 

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

Act, we are designating approximately 

7,779 ac (3,148 ha) of land in San 

Bernardino and Riverside Counties as 

critical habitat in this final rule. 

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) Which 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(a)(2) 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 and 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 

(i.e., areas on which are found the PCEs 

laid out in the appropriate quantity and 

spatial arrangement essential to 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 

designation of critical habitat may not 

include all of the habitat areas that we 

may eventually determine are necessary 

for the recovery of the species, based on 

scientific data not now available to the 

Service. 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 support populations, but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act. They 

are also subject to the regulatory 

protections afforded by section 9 of the 

Act and 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 

information available at the time of 

these planning efforts calls for a 

different outcome. 

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 

occupied by the species at the time of 

listing to designate as critical habitat, 

we consider those physical and 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection. We 


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consider the physical and biological 

features to be the PCEs laid out in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of the species. The PCEs 

include, but are not limited to: 

(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, or 

rearing (or development) of offspring; 

and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historical, geographical, and ecological 

distributions of a species. 

We derive the PCEs required for the 

San Bernardino kangaroo rat from its 

biological needs as described below, in 

the proposed rule to revise critical 

habitat published in the Federal 

Register on June 19, 2007 (72 FR 33808), 

and in the NOA published in the 

Federal Register on April 16, 2008 (73 

FR 20581). Additional information can 

also be found in the final listing rule 

published in the Federal Register on 

September 24, 1998 (63 FR 51005), and 

in the original final critical habitat rule 

published in the Federal Register on 

April 23, 2002 (67 FR 19812). 

Space for Individual and Population 

Growth and Normal Behavior 

San Bernardino kangaroo rats are 

typically found on alluvial fans, which 

are relatively flat or gently sloping 

masses of loose rock, gravel, and sand 

deposited by a stream as it flows into a 

valley or upon a plain (McKernan 1993, 

p. 1). This subspecies is also found on 

floodplains, washes, areas with braided 

channels, and in adjacent upland areas 

containing appropriate physical and 

vegetative characteristics (McKernan 

1993, p. 1). These areas consist of sand, 

loam, sandy loam, or gravelly soils 

(McKernan 1993, p. 1) that are 

associated with alluvial processes (i.e., 

the scour and deposition of clay, silt, 

sand, gravel, or similar material by 

running water such as rivers and 

streams; or debris flows). San 

Bernardino kangaroo rats have a strong 

preference for, and are more abundant 

on, soils deposited by alluvial processes 

(McKernan 1997, p. 36). These soils 

allow San Bernardino kangaroo rats to 

dig simple, shallow burrow systems for 

shelter and rearing offspring, and 

surface pits for food storage that provide 

for individual and population growth 

and for normal behavior. 

Few studies have occurred on the 

burrowing behavior of the San 

Bernardino kangaroo rat; however, their 

burrowing habits are similar to the 

Merriam’s kangaroo rat (of which the 

San Bernardino kangaroo rat is a 

subspecies), which has been extensively 

studied. Merriam’s kangaroo rats have 

weak forelegs and are restricted to 

burrowing in soil that has not been 

compacted, such as alluvial deposits of 

sand or sandy loam (Price 2007, p. 2). 

As a result of limited digging ability, 

Merriam’s kangaroo rats dig simple 

shallow burrow systems where they 

spend approximately 75 percent of their 

lives (Reynolds 1958, pp. 113 and 122). 

Burrows consist of one or two chambers 

averaging 6 inches in depth (Reynolds 

1960, p. 51). Kenagy (1973, p. 1207) 

observed that Merriam’s kangaroo rats 

occupied one to three simple burrows 

depending on the season. Merriam’s 

kangaroo rats do not have the ability to 

burrow into hard soils, and because of 

this, the highest numbers of kangaroo 

rats can be found on loose, sandy soils 

(Reynolds 1958, p. 113; Huey 1951, p. 

212). Light, textured soil that is 

favorable to burrowing is an important 

factor limiting the range of Merriam’s 

kangaroo rats (Reynolds 1958, p. 114). 

Sandy loam soils are not too heavy to 

discourage digging, yet they are not light 

enough to facilitate tunnel cave-ins that 

can occur in other soil types (Reynolds 

1958, p. 113). For these reasons, sandy 

loam soils found on alluvial fans and 

maintained by alluvial processes are 

essential to the survival and normal 

behavior of the San Bernardino 

kangaroo rat. 

Alluvial sage scrub habitat is 

necessary for normal behavior of the 

San Bernardino kangaroo rat because 

this plant community provides cover 

and food resources within areas 

containing suitable soils for burrowing. 

Alluvial sage scrub is considered a 

distinct and rare plant community that 

dominates major outwash fans at the 

mouths of canyons along the coastal 

side of the San Gabriel, San Bernardino, 

and San Jacinto Mountains and some 

smaller floodplain and riverine areas of 

southern California (Hanes et al. 1989, 

p. 187). Described as a variant of coastal 

sage scrub (Smith 1980, p. 135), alluvial 

sage scrub is also referred to as alluvial 

scrub, Riversidean alluvial fan scrub, 

alluvial fan sage scrub, cismontane 

alluvial scrub, alluvial fan scrub, or 

Riversidean alluvial fan sage scrub. 

Alluvial sage scrub occurs on two types 

of floodplain soils: Riverwash 

Association soils and Soboba 

Association soils (Hanes et al. 1989, p. 

188). Comprised of an assortment of 

low-growing drought-deciduous shrubs, 

larger evergreen woody shrubs, and 

other perennial species tolerant of a 

relatively sterile, rapidly draining 

substrate, this relatively open vegetation 

type is adapted to periodic severe 

flooding and erosion (Hanes et al. 1989, 

p. 187; Smith 1980, p. 126). 

Alluvial sage scrub vegetation 

includes plant species that are often 

associated with coastal sage scrub, 

chaparral, or desert transition 

communities (Smith 1980, p. 126). 

Common plant species found within 

these plant communities may include: 

Lepidospartum squamatum 

(scalebroom); Eriogonum fasciculatum 

(California buckwheat); Eriodictyon 

crassifolium (woolly yerba santa); 

Eriodictyon trichocalyx (hairy yerba 

santa); Yucca whipplei (our Lord’s 

candle); Rhus ovata (sugar bush); Rhus 

integrifolia (lemonadeberry); Malosma 

laurina (laurel sumac); Juniperus 

californicus (California juniper); 

Baccharis salicifolia (mulefat); 

Penstemon spectabilis (showy 

penstemon); Heterotheca villosa (golden 

aster); Eriogonum elongatum (tall 

buckwheat); Encelia farinosa (brittle 

bush); Opuntia spp. (prickly pear and 

cholla); Adenostoma fasciculatum 

(chamise); Prunus ilicifolia (holly-leaf 

cherry); Quercus spp. (oaks); Salvia 

apiana (white sage); annual forbs (e.g., 

Phacelia spp. (phacelia); Lupinus spp. 

(lupine); and Plagiobothrys spp. 

(popcorn flower)); and native and 

nonnative grasses. 

Three phases of alluvial sage scrub 

have been described: pioneer, 

intermediate, and mature. The phases 

are thought to correspond to factors 

such as flood scour, distance from flood 

channel, time since last flood, and 

substrate features (Smith 1980, p. 136; 

Hanes et al. 1989, p. 187). Under natural 

conditions, flood waters periodically 

break out of the main river channel in 

a complex pattern, resulting in a braided 

appearance to the floodplain and a 

mosaic of vegetation stages. Pioneer sage 

scrub, the earliest phase, is subject to 

frequent hydrological disturbance and 

the sparse vegetation pattern is usually 

renewed by frequent floods (Smith 

1980, p. 136; Hanes et al. 1989, p. 187). 

The intermediate phase, which is 

typically found on benches between the 

active channel and mature floodplain 

terraces, is subject to periodic flooding 

at longer intervals. The vegetation of 

early and intermediate stages is 

relatively open (less than 50 percent 

canopy cover) and supports the highest 

densities of the San Bernardino 

kangaroo rat (McKernan 1997, p. 50), 

likely due in part to few root systems to 

interfere with burrowing. Price (2007, p. 

2) suggests that kangaroo rats associate 

with sparsely vegetated habitats because 


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dense vegetation produces litter that 

covers the soil surface and bare soil 

surface is needed for dust-bathing and 

efficient seed collection. Areas like 

these, with a significant amount of bare 

ground, can also facilitate movement for 

a bipedal species like the San 

Bernardino kangaroo rat. For Merriam’s 

kangaroo rats, an abundance of 

perennial grass cover can create an 

unfavorable environment by interfering 

with ease of travel and escape from 

predators (Reynolds 1958, p. 114). 

The oldest or mature phase of alluvial 

sage scrub, which is found on elevated 

floodplain terraces, is rarely affected by 

flooding and supports the highest plant 

density (Smith 1980, p. 137). Although 

mature areas are generally used less 

frequently or occupied at lower 

densities by San Bernardino kangaroo 

rats (likely due to extensive root systems 

and heavy vegetative cover that inhibit 

burrowing, predator escape, and 

foraging) than those supporting earlier 

phases, these areas contain features 

essential to the conservation of the 

subspecies. Lower portions of the 

floodplain, where higher densities of 

San Bernardino kangaroo rats are found, 

are likely to become inundated or lost 

due to scour and sediment deposition 

during flooding events and some 

animals may drown during such events. 

In a study to determine the effects of 

flooding on Merriam’s kangaroo rats and 

two other heteromyid (family of rodents 

that includes the kangaroo rats, 

kangaroo mice, and pocket mice) 

species, Kenagy (1973, p. 1205) noted 

heavy burrow damage, and a 23 percent 

reduction in the number of chiseltoothed kangaroo rats (Dipodomys 

microps) trapped post-flooding 

compared to pre-flood numbers. 

Elevated upland portions of the 

floodplain containing mature phase 

alluvial sage scrub with patches of 

suitable soils and vegetative cover can 

support some individuals, but the low 

density of animals suggests these areas 

likely remain occupied only because of 

their proximity to the more densely 

occupied lower elevation portions of the 

floodplain. More important to the 

preservation of the San Bernardino 

kangaroo rat in channelized systems 

where bank-to-bank flooding can occur 

are individuals occupying the upland 

areas as they may be the only 

individuals remaining for recolonization 

of the lower floodplain after flooding 

has subsided (Pavelka 2006). 

Regional persistence of the San 

Bernardino kangaroo rat depends on 

recolonization of local populations that 

have been extirpated by drought or 

flood events (Price 2007, p. 2). Research 

conducted by Braden and McKernan 

(2000, p. 16) during 1998 and 1999 

demonstrated that areas with late phases 

of floodplain vegetation, such as mature 

alluvial fan sage scrub and associated 

coastal sage scrub and chaparral, 

including some areas of moderate to 

dense vegetation such as nonnative 

grasslands, are at least periodically 

occupied by the subspecies. Due to the 

dynamic nature of the alluvial 

floodplain, all elevations within the 

floodplain and the associated phases of 

alluvial sage scrub habitat are essential 

to the conservation and long-term 

survival of the San Bernardino kangaroo 

rat. 

A limited amount of data exists 

pertaining to population dynamics of 

the San Bernardino kangaroo rat. 

Information is not currently available on 

several aspects of the subspecies’ life 

history such as fecundity (the capacity 

of an organism to produce offspring), 

survival, population age and sex 

structure, intra- and interspecific 

competition, and causes and rates of 

mortality. With respect to population 

density, Braden and McKernan (2000) 

documented substantial annual 

variation on a trapping grid in San 

Bernardino County, where densities 

ranged from 2 to 26 animals per 2.47 ac 

(1 ha). The reasons for these greatly 

disparate values during the 15-month 

study are unknown. These fluctuations 

bring to light several important aspects 

of the subspecies’ distribution and life 

history that should be considered when 

identifying the physical and biological 

features essential to the conservation of 

the subspecies: (1) A low population 

density observed in an area at one point 

in time does not mean the area is 

occupied at the same low density during 

any other month, season, or year; (2) a 

low population density is not an 

indicator of low habitat quality or low 

overall value of the land for the 

conservation of the subspecies; (3) an 

abundance of San Bernardino kangaroo 

rats can decrease rapidly; and (4) one or 

more factors (e.g., food availability, 

fecundity, disease, predation, genetics, 

environment) are strongly influencing 

the subspecies’ population dynamics in 

one or more areas. High-amplitude, 

high-frequency fluctuations in small, 

isolated populations make the San 

Bernardino kangaroo rat extremely 

susceptible to local extirpation. 

Areas that contain low densities of 

San Bernardino kangaroo rats may be 

important for dispersal, genetic 

exchange, colonization of newly 

suitable habitat, and re-colonization of 

areas after severe storm events. The 

dynamic nature of the alluvial habitat 

leads to a situation where not all the 

habitat associated with alluvial 

processes is suitable for the subspecies 

at any point in time. However, areas 

generally considered unsuitable habitat, 

such as out-of-production vineyards and 

margins of orchards, can and do develop 

into suitable habitat for the subspecies 

through natural processes (67 FR 

19812). The San Bernardino kangaroo 

rat is documented in the following 

areas: those containing suitable soils 

that have been altered due to human 

disturbance not typically associated 

with the subspecies, including 

nonnative grasslands; margins of 

orchards and out-of-use vineyards; 

mature stage alluvial sage scrub with 

greater than 50 percent canopy cover; 

and areas of wildland/urban interface 

within floodplains or terraces that are 

adjacent to occupied habitat (67 FR 

19812, April 23, 2002). These upland 

areas can support individuals for 

repopulation of wash areas extirpated 

by flood events (Pavelka 2006). This can 

occur directly by dispersal of adult 

individuals, or indirectly through 

dispersal of offspring (Pavelka 2006). 

Little is known about home range 

size, dispersal distances, or other spatial 

requirements of the San Bernardino 

kangaroo rat. However, home ranges for 

the Merriam’s kangaroo rat in the Palm 

Springs, California, area averaged 0.82 

ac (0.33 ha) for males and 0.77 ac (0.31 

ha) for females (Behrends et al. 1986, p. 

204). Blair (1943, p. 26) reported much 

larger home ranges for Merriam’s 

kangaroo rats in New Mexico, where 

home ranges averaged 4.1 ac (1.7 ha) for 

males and 3.9 ac (1.6 ha) for females. 

Space requirements for the San 

Bernardino kangaroo rat likely vary 

according to season, age and sex of 

animal, food availability, and other 

factors. Although outlying areas of their 

home ranges may overlap, Dipodomys 

adults actively defend small core areas 

near their burrows (Jones 1993, p. 583). 

Home range overlap between males and 

between males and females is extensive, 

but female-female overlap is slight 

(Jones 1993, p. 584). The degree of 

competition between San Bernardino 

kangaroo rats and sympatric (i.e., living 

in the same geographical area) species of 

kangaroo rats for food and other 

resources is not presently known. While 

we do not have sufficient information to 

quantify the home range required by the 

San Bernardino kangaroo rat, we believe 

we included sufficient areas through the 

delineation of critical habitat in wash 

and upland areas to provide the space 

needed to maintain the home range 

dynamics of this subspecies. 

Food 

As stated in the previous sections, the 

alluvial sage scrub plant community 


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occupied by the San Bernardino 

kangaroo rat provides food resources for 

the subspecies. However, little is known 

about the specific diet of San 

Bernardino kangaroo rats. They emerge 

from their burrow systems at sunset and 

feed at night, when they are most active. 

San Bernardino kangaroo rats are 

generally granivorous (i.e., feed on seeds 

and grains) and like most Merriam’s 

kangaroo rats, often store large 

quantities of seeds in surface pits for 

later consumption (Reichman and Price 

1993, p. 540; Reynolds 1958, p. 126). 

This species feeds primarily on the 

seeds of alluvial sage scrub species, but 

green vegetation and insects can also be 

important seasonal food sources. 

Insects, when available, are documented 

to constitute as much as 50 percent of 

a kangaroo rat’s diet (Reichman and 

Price 1993, p. 540). 

Wilson et al. (1985, p. 731) reported 

that in comparison to other rodents, 

Merriam’s kangaroo rats, and 

heteromyids in general, have relatively 

low reproductive output that can be 

linked to food resources. Rainfall and 

the availability of food are cited as 

factors affecting kangaroo rat 

populations. Droughts lasting more than 

a year can cause rapid declines in 

population numbers after seed caches 

are depleted (Goldingay et al. 1997, p. 

56). 

Cover or Shelter 

San Bernardino kangaroo rats depend 

on suitable soils for burrowing and 

vegetative cover for shelter from 

predation. Potential predators include 

the common barn owl (Tyto alba), great 

horned owl (Bubo virginianus), longeared owl (Asio otus), gray fox (Urocyon 

cinereoargenteus), coyote (Canis 

latrans), long-tailed weasel (Mustela 

frenata), bobcat (Lynx rufus), badger 

(Taxidea taxus), San Diego gopher 

snake (Pituophis melanoleucus 

annectens), California king snake 

(Lampropeltis getulus californiae), red 

diamond rattlesnake (Crotalus ruber), 

southern Pacific rattlesnake (Crotalus 

oreganus), and domestic cats (Felis 

catus) (Bolger et al. 1997, p. 560; 67 FR 

19812, April 23, 2002). 

Primary Constituent Elements for the 

San Bernardino Kangaroo Rat 

Pursuant to the Act and its 

implementing regulations, we are 

required to identify the physical and 

biological features within the 

geographical area occupied by the San 

Bernardino kangaroo rat at the time of 

listing that are essential to the 

conservation of the species and which 

may require special management 

considerations or protection. The 

physical and biological features are the 

primary constituent elements (PCEs) 

laid out in the appropriate quantity and 

spatial arrangement essential to the 

conservation of the species. All areas 

designated as critical habitat for the San 

Bernardino kangaroo rat are within the 

geographical area occupied by the 

species at the time of listing, are 

currently occupied, and contain 

sufficient essential features to support at 

least one life history function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the San Bernardino kangaroo rat and the 

requirements of the habitat to sustain 

the essential life history functions of the 

subspecies, we determined that the 

PCEs specific to the San Bernardino 

kangaroo rat are: 

(1) Alluvial fans, washes, and 

associated floodplain areas containing 

soils consisting predominately of sand, 

loamy sand, sandy loam, and loam, 

which provide burrowing habitat 

necessary for sheltering and rearing 

offspring, storing food in surface caches, 

and movement between occupied 

patches; 

(2) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas containing alluvial sage scrub 

habitat and associated vegetation, such 

as coastal sage scrub and chamise 

chaparral, with up to approximately 50 

percent canopy cover providing 

protection from predators, while leaving 

bare ground and open areas necessary 

for foraging and movement of this 

subspecies; and 

(3) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas, which may include marginal 

habitat such as alluvial sage scrub with 

greater than 50 percent canopy cover 

with patches of suitable soils (PCE 1) 

that support individuals for repopulation of wash areas following 

flood events. These areas may include 

agricultural lands, areas of inactive 

aggregate mining activities, and urban/ 

wildland interfaces. 

With this final designation of critical 

habitat, we intend to conserve the 

physical and biological features 

essential to the conservation of the 

subspecies, through the identification of 

the appropriate quantity and spatial 

arrangement of the PCEs sufficient to 

support the life history functions of the 

subspecies. 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 subspecies’ 

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 

Protection 

When designating critical habitat, we 

assess whether the areas within the 

geographical area occupied at the time 

of listing contain features essential to 

the conservation of the subspecies that 

may require special management 

considerations or protection. We also 

considered how revising the current 

designation of critical habitat highlights 

habitat with essential features in need of 

special management considerations or 

protection. 

The majority of all remaining suitable 

habitat, and therefore, the long-term 

persistence of the San Bernardino 

kangaroo rat, is threatened by the direct 

and indirect effects of: sand and gravel 

mining; construction, operation, and 

maintenance of flood control structures; 

water conservation activities; urban and 

industrial development; agricultural 

activities; and off-road vehicle activity. 

With an expanding human population 

in the region, it is likely that these 

activities will continue to threaten the 

habitat and PCEs upon which the San 

Bernardino kangaroo rat depends. 

Sand and gravel mining operations 

have degraded San Bernardino kangaroo 

rat habitat in all of the critical habitat 

units except Unit 4, with major 

operations occurring in the Santa Ana 

River and Lytle Creek washes. Mining 

activities directly affect the PCEs for the 

subspecies by altering soil composition 

and structure, and by stripping away 

vegetative cover (PCEs 1 and 2). 

Furthermore, flood control structures 

are often built to protect mining 

operations from flood damage. This 

alters the hydrology essential for 

maintaining proper soil and alluvial 

sage scrub habitat for the San 

Bernardino kangaroo rat (PCEs 1 and 2). 

Special management considerations or 

protection may be required to minimize 

effects of mining activities on alluvial 

sage scrub habitat and the natural 

hydrological processes that maintain 

proper alluvial sage scrub conditions for 

the San Bernardino kangaroo rat. 

Flood control and water conservation 

activities related to increasing human 

population and development have had 

major impacts on San Bernardino 

kangaroo rat habitat and the alluvial 

processes that maintain habitat in each 

of the critical habitat units. Flood 

control berms, levees, and concretelined channels increase severity (i.e., 

velocity and scour) of flood events in 

lower elevations within the floodplain, 

and cut off upland portions of alluvial 

sage scrub habitat from hydrological 

processes that maintain suitable San 

Bernardino kangaroo rat conditions 


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(PCEs 1, 2, and 3). In the absence of 

periodic flooding and scouring, upland 

alluvial sage scrub habitat increases in 

cover and in density of nonnative 

vegetation to the point where the open 

canopy and ground conditions (PCE 2) 

preferred by the subspecies no longer 

exist (Service 2004, p. 293). Some flood 

control structures (e.g., concrete 

channels) can prevent movement and 

dispersal between occupied areas of the 

alluvial wash and floodplain. Decades 

of groundwater pumping have severely 

depleted groundwater reserves within 

San Bernardino kangaroo rat habitat and 

resulted in an ever-increasing need to 

recharge groundwater supplies by 

percolation of local or imported water 

sources into the local groundwater basin 

(Service 2004, p. 293). Further habitat 

degradation occurs where groundwater 

recharge ponds (i.e., percolation basins) 

have been constructed. Recharge 

structures are unsuitable for the San 

Bernardino kangaroo rat due to periodic 

standing water. These structures are 

especially evident in the Santa Ana 

River and San Jacinto River washes. 

Special management considerations or 

protection may be required to minimize 

effects of flood control and water 

conservation activities on alluvial sage 

scrub habitat and the natural 

hydrological processes that maintain 

proper alluvial sage scrub conditions for 

the San Bernardino kangaroo rat. 

Development projects pose a serious 

threat to San Bernardino kangaroo rat 

habitat in all five critical habitat units. 

As the human population of the 

surrounding area continues to increase, 

the threat of development encroaching 

upon alluvial washes and associated 

upland areas will persist (PCEs 1, 2, and 

3). Large-scale development projects 

may permanently eliminate and 

fragment habitat containing the PCEs for 

the subspecies. Furthermore, continued 

fragmentation of habitat is likely to 

promote higher levels of predation by 

native animals (Bolger et al. 1997, p. 

560) and urban-associated animals (e.g., 

domestic cats, opossums (Didelphis 

virginianus), and striped skunks 

(Mephitis mephitis)) as the interface 

between natural habitat and urban areas 

is increased (Churcher and Lawton 

1987, p. 452). Roadways and bridges 

built to accommodate the growing 

population in the area constrict channel 

width and contribute to the removal of 

alluvial fan habitat from normal 

hydrological processes (PCE 1). The 

downstream alluvial benches become 

isolated behind the fill used to construct 

the bridge within the channel area and 

do not experience natural flood-borne 

scour and deposition. Pier and footing 

placement within channels is a typical 

necessary bridge design feature. 

Instream piers create scour areas in front 

of the piers, increase water velocity 

through the embankments and piers 

(which can result in downstream 

erosion), and create a permanent 

shadow over habitat under the bridge. 

These factors typically result in 

permanently degraded habitat for the 

San Bernardino kangaroo rat even 

though high flows are seasonal in this 

area. Special management 

considerations or protection may be 

required to minimize the impacts of 

development within the alluvial wash 

and adjacent upland areas. Areas of the 

alluvial washes and floodplains 

adjacent to development may require 

exclusionary fencing and signage to 

minimize human and domestic animal 

disturbance of San Bernardino kangaroo 

rat habitat. Because this subspecies is 

active at night, lights from adjacent 

developed areas should be minimized 

and directed away from San Bernardino 

kangaroo rat habitat. 

Agricultural activities adjacent to all 

five critical habitat units and within 

critical habitat Unit 5 occasionally 

result in the disking of patches of 

suitable or occupied habitat that may be 

distributed throughout upland 

agricultural areas. Disking destroys San 

Bernardino kangaroo rat burrows and 

degrades remaining vegetation 

associations (Service 2004, p. 293) 

(PCEs 1 and 2). This can contribute to 

the susceptibility of local populations to 

extirpation during large-scale flood 

events by restricting San Bernardino 

kangaroo rats to areas most vulnerable 

to flooding (i.e., lower elevations of the 

floodplain) (Service 2004, p. 293). 

Special management considerations or 

protection may be required to minimize 

effects of agricultural activities on 

alluvial sage scrub habitat. 

Unauthorized off-road vehicle activity 

continues to be a threat to San 

Bernardino kangaroo rat habitat in the 

San Jacinto River wash area. Most of 

this activity occurs within the wash 

downstream of the East Main Street/ 

Lake Park Drive Bridge. Off-road activity 

that goes unchecked directly damages 

plant communities, the soil crust, and 

the burrow systems of kangaroo rats, 

thereby degrading habitat (Bury et al. 

1977, p. 16; Service 2004, p. 293) (PCEs 

1 and 2). Special management 

considerations or protection, such as 

exclusionary fencing, additional 

enforcement, and signage placed around 

areas of the wash, may be needed to 

minimize impacts from unauthorized 

off-road vehicle use. 

Criteria Used To Identify Critical 

Habitat 

We are designating critical habitat for 

the San Bernardino kangaroo rat in areas 

that we have determined were within 

the geographical area occupied at the 

time of listing, and contain PCEs in the 

appropriate quantity and spatial 

arrangement essential to the 

conservation of this subspecies. Some 

lands contain all PCEs and support 

multiple life processes. Some lands 

contain only a portion of the PCEs 

necessary to support the particular 

biological value of that habitat to this 

subspecies. As explained in detail 

below, we are not designating critical 

habitat in areas outside the geographical 

area occupied by the species at the time 

of listing because we determined that 

such areas are not essential to the 

conservation of the subspecies. 

We define occupied habitat as: (1) 

Those areas containing occurrence data 

from the time of listing (1980 to 1998); 

(2) those areas containing occurrence 

data since the time of listing (1998 to 

present); and (3) areas adjacent to and 

between occurrence points that 

maintain habitat connectivity between 

occurrences in one continuous patch of 

suitable habitat. As discussed in the 

‘‘Background’’ section of the proposed 

rule published in the Federal Register 

on June 19, 2007 (72 FR 33808), 

occurrences discovered since the listing 

of the subspecies in 1998 are within the 

geographical area occupied at the time 

of listing (i.e., Santa Ana River, Lytle/ 

Cajon Creek, and San Jacinto River 

washes). 

In this designation, we have focused 

primarily on core populations (i.e., areas 

where the subspecies has been 

repeatedly detected through live 

trapping) in undisturbed habitat in the 

Santa Ana River, Lytle/Cajon Creeks, 

and the San Jacinto River washes that 

contain the physical and biological 

features essential to the conservation of 

the San Bernardino kangaroo rat. We 

believe that protecting the habitat 

supporting these three largest core 

populations is essential to the survival 

and recovery of the subspecies. Small, 

isolated areas of degraded habitat or 

areas devoid of fluvial processes are 

likely only to support unsustainable 

populations that would not contribute 

to the recovery of this subspecies. In 

defining core population boundaries, we 

included areas demographically 

disconnected from the three largest 

populations, but which may provide the 

subspecies with protection against 

stochastic events (e.g., flooding in 

excess of a 100-year storm event that 

removes flood-plain terrace habitat; 


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earthquakes; fires followed by erosion of 

adjacent slopes that bury occupied 

habitat) that could cause local 

extirpations in the larger units. These 

areas are occupied by the subspecies 

and contain likely self-sustaining 

populations, relatively undisturbed 

alluvial scrub habitat with largely 

unimpeded fluvial dynamics, and, thus, 

the PCEs in the appropriate quantity 

and spatial arrangement essential to the 

conservation of the subspecies. 

We delineated critical habitat for the 

San Bernardino kangaroo rat using the 

following criteria: (1) Areas occupied by 

the subspecies at the time of listing, and 

currently occupied, within the historical 

range of the subspecies; (2) areas 

retaining fluvial dynamics containing 

one or more of the PCEs for the 

subspecies; (3) areas supporting a core 

population of the subspecies; and (4) 

areas demographically disconnected 

from the three largest populations, but 

which may be important for the longterm recovery of the subspecies. 

Utilizing 2005 aerial imagery and 

occurrence data to determine areas of 

occupancy, we delineated critical 

habitat on maps to include occupied 

non-degraded alluvial fans, washes, 

floodplains, and adjacent upland areas 

containing the PCEs required by the San 

Bernardino kangaroo rat. We then made 

site visits with biologists considered to 

be experts on this subspecies and its 

habitat to confirm the presence of PCEs 

in the areas delineated on the maps. 

Because of the importance of upland 

habitat as a source of animals to 

repopulate wash areas following flood 

events, we included upland habitat 

containing one or more PCEs, adjacent 

to occupied wash habitat in this 

designation. 

The Service may designate as critical 

habitat areas outside of the geographical 

area occupied by a species at the time 

it was listed when we can demonstrate 

that those areas are essential for the 

conservation of the species. Likewise, 

we can designate as critical habitat areas 

outside the geographical area presently 

occupied by a species only when a 

designation limited to the species’ 

present range would be inadequate to 

ensure the conservation of the species 

(50 CFR 424.12(e)). Conservation (i.e., 

recovery) is defined in section 3 of the 

Act as the ‘‘use of all methods and 

procedures which are necessary to bring 

any endangered species or threatened 

species to the point at which the 

measures provided pursuant to this Act 

are no longer necessary.’’ In accordance 

with section 4(a)(1) of the Act, we 

determine if any species is an 

endangered or threatened species (or 

revise its listed status) because of any of 

the five threat factors identified in the 

Act (i.e., (A) present or threatened 

destruction, modification, or 

curtailment of its habitat or range; (B) 

overutilization for commercial, 

recreational, scientific, or educational 

purposes; (C) disease or predation; (D) 

the inadequacy of existing regulatory 

mechanisms; or (E) other natural or 

manmade factors affecting its continued 

existence). Therefore, conservation, or 

recovery, is achieved when a five factor 

analysis indicates that current and 

future threats have been minimized to 

an extent that the species is no longer 

in danger of extinction or likely to 

become endangered in the foreseeable 

future. Recovery is a dynamic process 

requiring adaptive management of 

threats and there are many paths to 

accomplishing recovery of a species. We 

recognize that it is unlikely that threats 

to this subspecies will be removed from 

all areas identified in this rule and that 

recovery efforts will occur outside the 

boundaries of this final designation; 

however, we believe that that 

conservation of this subspecies would 

be achieved if threats to this subspecies, 

as described in the ‘‘Special 

Management Considerations or 

Protection’’ section of this rule, were 

reduced or removed in the areas we 

identified as meeting the definition of 

critical habitat. Therefore, consistent 

with the statutory obligations of the Act 

and our implementing regulations we 

are not designating any unoccupied 

areas or areas outside the geographical 

area occupied by this subspecies at the 

time it was listed. 

When determining the critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

lands covered by buildings, pavement, 

and other structures because such lands 

lack PCEs for the San Bernardino 

kangaroo rat. Areas currently being used 

for sand/gravel mining operations (e.g., 

pits, staging areas) do not contain the 

PCEs required by the San Bernardino 

kangaroo rat. 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 lands. Any 

such lands inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final critical habitat are 

excluded by text in this rule and are not 

designated as critical habitat. Therefore, 

Federal actions involving these textually 

excluded lands would not trigger 

section 7 consultation with respect to 

critical habitat and the requirement of 

no adverse modification unless the 

specific actions may affect the 

subspecies or PCEs in adjacent critical 

habitat. 

Final Critical Habitat Designation 

We are designating approximately 

7,779 ac (3,148 ha) of land as critical 

habitat for the San Bernardino kangaroo 

rat in five units. Table 2 provides the 

approximate area determined to meet 

the definition of critical habitat for the 

San Bernardino kangaroo rat in the 2007 

proposed rule, areas added to the 

proposed rule in the April 16, 2008 

NOA, areas being excluded from final 

critical habitat designation under 

section 4(b)(2) of the Act (please see 

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

Act’’ section for a detailed discussion), 

and areas being designated as critical 

habitat. 

TABLE 2—CRITICAL HABITAT UNITS FOR THE SAN BERNARDINO KANGAROO RAT IN CALIFORNIA; LAND OWNERSHIP AND

EVOLUTION OF FINAL SIZE IN ACRES (HECTARES) 

Critical habitat unit Land ownership 

2007 Proposed 

critical habitat 

(72 FR 33808) 

2008 NOA additions to proposed 

critical habitat 

(73 FR 20581) 

Areas excluded 

under section 

4(b)(2) of the act 

Final critical habitat 

1. Santa Ana River Wash, 

San Bernardino County.

BLM 1 .................................. 559 (226) 184 (74) 00 (00) 743 (301) 

Local 2 ................................. 267 (108) 00 (00) 267 (108) 00 (00) 

Private ................................ 2,797 (1,132) 469 (190) 751 (304) 2,515 (1,018) 

Subtotal ........................ ............................................. 3,623 (1,466) 653 (264) 1,018 (412) 3,258 (1,318) 

2. Lytle/Cajon Creek Wash, 

San Bernardino County.

USFS3 ................................ 89 (36) 00 (00) 00 (00) 89 (36) 


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TABLE 2—CRITICAL HABITAT UNITS FOR THE SAN BERNARDINO KANGAROO RAT IN CALIFORNIA; LAND OWNERSHIP AND

EVOLUTION OF FINAL SIZE IN ACRES (HECTARES)—Continued 

Critical habitat unit Land ownership 

2007 Proposed 

critical habitat 

(72 FR 33808) 

2008 NOA additions to proposed 

critical habitat 

(73 FR 20581) 

Areas excluded 

under section 

4(b)(2) of the act 

Final critical habitat 

Private ................................ 4,597 (1,860) 00 (00) 1,265 (512) 3,332 (1,348) 

Subtotal ........................ ............................................. 4,686 (1,896) 00 (00) 1,265 (512) 3,421 (1,384) 

3. San Jacinto River Wash, 

Riverside County.

Water District 4 .................... 506 (205) 00 (00) 6 39 (16) 506 (205) 

Local Flood 5 ....................... 94 (38) 00 (00) 94 (38) 00 (00) 

Private ................................ 169 (68) 00 (00) 169 (68) 00 (00) 

Subtotal ........................ ............................................. 769 (311) 00 (00) 302 (122) 506 (205) 

4. Cable Creek Wash, San 

Bernardino County.

Private ................................ 00 (00) 483 (195) 00 (00) 483 (195) 

Subtotal ........................ ............................................. 00 (00) 483 (195) 00 (00) 483 (195) 

5. Bautista Creek, Riverside 

County.

USFS3 ................................ 00 (00) 73 (30) 00 (00) 73 (30) 

USFS Inholding .................. 00 (00) 38 (15) 00 (00) 38 (15) 

Local Flood 5 ....................... 00 (00) 4 (2) 4 (2) 00 (00) 

Private ................................ 00 (00) 328 (133) 328 (133) 00 (00) 

Subtotal ........................ ............................................. 00 (00) 443 (179) 332 (134) 111 (45) 

Total ...................... ............................................. 9,078 (3,674) 1,579 (639) 2,917 (1,180) 7,779 (3,148) 

1BLM = Bureau of Land Management 

2 Local = Local Reuse Authority 

3 USFS = U.S. Forest Service 

4Water District = Eastern Municipal Water District and Lake Hemet Municipal Water District 

5 Local Flood = Riverside County Flood Control 

6Please see the ‘‘Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat’’ section for a discussion of Eastern Municipal Water District lands excluded from critical habitat. 

Below, we present brief descriptions 

of the units designated as critical habitat 

for the San Bernardino kangaroo rat. For 

more information about the areas 

excluded from critical habitat, please 

see the ‘‘Exclusions Under Section 

4(b)(2) of the Act’’ section of this final 

rule. 

Unit 1: Santa Ana River Wash 

Unit 1 consists of approximately 

3,258 ac (1,318 ha) and is located in San 

Bernardino County. This unit includes 

the Santa Ana River and portions of 

City, Plunge, and Mill Creeks. The area 

includes lands within the cities of San 

Bernardino, Redlands, and Highland. 

Although Seven Oaks Dam (northeast of 

Unit 1) impedes sediment transport and 

reduces the magnitude, frequency, and 

extent of flood events from the Santa 

Ana River, the system still retains 

partial fluvial dynamics because Mill 

Creek is not impeded by a dam or debris 

basin. This critical habitat unit was 

occupied at the time of listing, is 

currently occupied, and contains all of 

the features essential to the conservation 

of the San Bernardino kangaroo rat. 

Additionally, this unit contains the 

highest densities of San Bernardino 

kangaroo rats in the Santa Ana wash. 

The physical and biological features 

contained within this unit may require 

special management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. 

Approximately 751 ac (304 ha) of 

revised proposed critical habitat Unit 1 

occurred within the WSPA, a section of 

the floodplain downstream of Seven 

Oaks Dam that was preserved by the 

flood control districts of Orange, 

Riverside, and San Bernardino Counties. 

The WSPA was established in 1988 by 

the ACOE to minimize the effects of 

Seven Oaks Dam on the federally 

endangered plant, Eriastrum 

densifolium ssp. sanctorum (Santa Ana 

River woolly-star). This area of alluvial 

fan scrub in the wash near the low-flow 

channel of the river was identified for 

preservation because these sections of 

the wash were thought to have the 

highest potential to maintain the 

hydrology necessary for the periodic 

regeneration of early phases of alluvial 

fan sage scrub. A 1993 Management 

Plan for the Santa Ana River WSPA has 

been completed, and a draft MSHMP for 

WSPA lands, which includes protection 

for the San Bernardino kangaroo rat, is 

to be completed as an additional 

conservation measure pursuant to our 

December 19, 2002, biological opinion 

on operations for Seven Oaks Dam 

(Service 2002b, p. 8). As a result of our 

partnership and development of 

approved management plans, we 

excluded the approximately 751 ac (304 

ha) of WSPA lands from the final 

revised critical habitat designation (see 

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

Act’’ section for a detailed discussion). 

In 1994, the BLM designated three 

parcels in the Santa Ana River, a total 

of approximately 760 ac (308 ha), as an 

ACEC. One parcel is located south of the 

Seven Oaks borrow pit, another is 

farther west and south of Plunge Creek, 

and the third is located farther west 

between two large mining pits. The 

primary goal of this ACEC designation 

is to protect and enhance the habitat of 

federally listed plant species occurring 

in the area while providing for the 

administration of valid existing water 

conservation rights. Although the 

establishment of this ACEC is important 

in regard to conservation of sensitive 


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species and vegetation communities in 

this area, the administration of existing 

water conservation rights conflicts with 

the BLM’s ability to manage their lands 

for the San Bernardino kangaroo rat. 

Existing rights include a withdrawal of 

Federal lands for water conservation 

through an act of Congress on February 

20, 1909 (Public Law 248, 60th Cong., 

2nd sess.). The entire ACEC is included 

in this withdrawn land and may be used 

for water conservation measures, such 

as the construction of percolation 

basins. Although the BLM is 

coordinating with the Service to 

conserve San Bernardino kangaroo rat 

habitat, at this time we do not consider 

these lands to be managed for the 

benefit of the San Bernardino kangaroo 

rat or its PCEs, and we are not excluding 

these lands from the final revised 

critical habitat designation. 

We are currently coordinating with 

the BLM, ACOE, San Bernardino Valley 

Conservation District, Cemex 

Construction Materials, Robertson’s 

Ready Mix, and other local interests on 

a proposed exchange of Federal and 

private lands and the development of 

the Upper Santa Ana River Habitat 

Conservation Plan (USAR HCP, also 

known as ‘‘Plan B’’). The goal of the 

USAR HCP is to consolidate a large 

block of alluvial fan scrub occupied by 

three federally endangered species (the 

San Bernardino kangaroo rat, Eriastrum 

densifolium ssp. sanctorum, and 

Dodecahema leptoceras (slender-horned 

spineflower)) and one federally 

threatened species (the coastal 

California gnatcatcher (Polioptila 

californica californica)). The area under 

consideration includes the majority of 

the Santa Ana wash from just 

downstream of the confluence of Mill 

Creek with the Santa Ana River to 

Alabama Street. While the goal of this 

effort is to benefit the San Bernardino 

kangaroo rat through the establishment 

of preserve lands that will be managed 

for this subspecies and other listed 

species, we are still in the development 

phase of this HCP, and we are not 

excluding lands within the proposed 

Santa Ana River Wash Conservation 

Area from the final revised critical 

habitat designation. 

Approximately 267 ac (108 ha) of 

occupied habitat in the Santa Ana River 

wash is set aside for conservation in 

perpetuity by the U.S. Air Force as part 

of on-base site remediation efforts at the 

former Norton Air Force Base in San 

Bernardino, California. These areas are 

managed specifically for the San 

Bernardino kangaroo rat and Eriastrum 

densifolium spp. sanctorum pursuant to 

the Former Norton Air Force Base CMP 

completed in March 2002. We excluded 

these 267 ac (109 ha) from the final 

revised critical habitat designation 

based on benefits provided to San 

Bernardino kangaroo rat habitat through 

our partnership and the approved CMP 

(see ‘‘Exclusions Under Section 4(b)(2) 

of the Act’’ section for a detailed 

discussion). 

Unit 2: Lytle/Cajon Creek Wash 

Unit 2 encompasses approximately 

3,421 ac (1,384 ha) in San Bernardino 

County and includes the northern extent 

of this subspecies’ remaining 

distribution. This unit contains habitat 

along and between Lytle and Cajon 

Creeks from the Interstate 15 Bridge in 

Lytle Creek and the Kenwood Avenue/ 

Cajon Boulevard junction in Cajon 

Creek, downstream to Highland Avenue. 

Unit 2 was occupied at the time of 

listing, is currently occupied, and 

contains all of the features essential to 

the conservation of the San Bernardino 

kangaroo rat. This unit includes some of 

the last remaining alluvial fans, 

floodplain terraces, historical braided 

river channels, and associated alluvial 

sage scrub and upland vegetation that 

provides habitat for the San Bernardino 

kangaroo rat in the Lytle/Cajon Creek 

wash. This unit also contains the 

highest densities of San Bernardino 

kangaroo rat in the Lytle/Cajon wash. 

The physical and biological features 

within this unit may require special 

management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. 

The hydro-geomorphological 

processes that apparently rejuvenate 

and maintain the dynamic mosaic of 

alluvial fan sage scrub are still largely 

intact in Lytle and Cajon Creeks (i.e., 

stream flows are not impeded by dams 

or debris basins), and the remaining 

habitat allows dispersal between these 

two drainages, which is important for 

genetic exchange between populations 

(67 FR 19812, April 23, 2002). This unit 

is adjacent to large tracts of 

undeveloped land and contains upland 

areas occupied by the subspecies (PCEs 

1, 2, and 3). 

Several areas that were proposed in 

Unit 2 will be or are protected and 

managed to some extent for the San 

Bernardino kangaroo rat. The Cajon 

Creek Habitat Conservation 

Management Area (HCMA) includes 

approximately 1,265 ac (512 ha) to offset 

approximately 2,270 ac (919 ha) of sand 

and gravel mining proposed within and 

adjacent to Cajon Creek. Of the 1,265 ac 

(512 ha) Cajon Creek HCMA, 

approximately 567 ac (229 ha) is the 

Cajon Creek Conservation Bank 

established to help conserve 

populations of 24 species associated 

with alluvial fan scrub, including the 

San Bernardino kangaroo rat. 

Furthermore, the remaining 698 ac (282 

ha) are set aside as permanent 

conservation lands. These conservation 

lands will be managed in perpetuity for 

alluvial fan scrub habitat and associated 

listed species (including the San 

Bernardino kangaroo rat) pursuant to 

the HEMP (M. Blane and Associates 

1996) and associated Memorandum of 

Understanding and Implementation 

Agreement for the Cajon Creek Habitat 

Management Area (MOU) (CalMat 

Company 1996). We excluded 1,265 ac 

(512 ha) of HCMA lands from the final 

revised critical habitat designation 

based on our partnership and benefits 

provided by the HEMP and MOU (see 

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

Act’’ for a detailed discussion). 

In 2003, the Service issued a 

biological opinion for the Lytle Creek 

North Master Planned Community, 

which falls within the boundary of 

existing San Bernardino kangaroo rat 

habitat (Service 2003a, FWS–SB– 

1640.11). The project includes an 

approximately 677 ac (274 ha) master 

planned community with over 2,400 

residential units. Construction activities 

are proposed to be phased over an 

estimated 5 to 10 years. As an off-site 

measure for this project, the Lytle Creek 

Development Company will dedicate 

approximately 213 ac (86 ha) of largely 

undeveloped habitat within Lytle Creek 

(Unit 2) as a conservation area for the 

San Bernardino kangaroo rat. Habitat 

that provides primary foraging, 

sheltering, and breeding habitat for the 

San Bernardino kangaroo rat within this 

area will be conserved and managed in 

perpetuity (Service 2003a, p. 45). Forty 

acres (16 ha) of this area is upland 

island habitat that lies within the 

floodplain and will receive additional 

management through restoration or 

enhancement for the benefit of the San 

Bernardino kangaroo rat (Service 2003a, 

p. 42). A long-term management plan 

will be completed at the end of an 

initial management period allowing for 

lessons learned during that time to be 

incorporated into the long-term 

management plan. However, to date, no 

conservation easements or endowments 

have been secured for the lands 

proposed as conservation areas, nor has 

the long-term management plan been 

completed, and we are not excluding 

the 213 ac (86 ha) of proposed future 

conservation lands that will be 

established as a result of this project 


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from the final revised critical habitat 

designation. 

On June 15, 1999, we issued our 

biological opinion on the construction 

and extension of the north levee at 

Sunwest Materials’ (now CEMEX) Lytle 

Creek Quarry (Service 1999, 1–6–99–F– 

42). The armored, engineered levee 

(over 10,000 feet (3,048 meters) in 

length) protects mining operations from 

flooding and replaces a shorter, earthen 

embankment (Service 1999, p. 3). As a 

conservation measure for this project, 

Sunwest Materials delivered to the 

California Department of Fish and Game 

a conservation easement deed to 

approximately 26 ac (11 ha) delineated 

as Conservation Area 1 to protect 

biological resources in perpetuity 

(Service 1999, p. 7). Additionally, 

Sunwest Materials is to record a 

biological resource deed restriction on 

approximately 12 ac (5 ha) of land to 

permanently preclude activities that 

would interfere with habitat value 

(Service 1999, p. 8). However, a 

management plan benefiting the San 

Bernardino kangaroo rat is not yet 

developed for these lands, and we are 

not excluding these 38 ac (16 ha) from 

the final revised critical habitat 

designation. 

Unit 3: San Jacinto River Wash 

Unit 3 encompasses approximately 

506 ac (205 ha) in Riverside County and 

includes areas along the San Jacinto 

River in the vicinity of San Jacinto, 

Hemet, and Valle Vista. This unit 

encompasses the San Jacinto River wash 

from the Blackburn Road/Lake Hemet 

Main Canal area, downstream to the 

East Main Street Bridge. This unit 

includes all of the features essential to 

the conservation of the San Bernardino 

kangaroo rat, was occupied at the time 

of listing, and is currently occupied. 

Additionally, this unit contains one of 

only three large extant core populations 

of the San Bernardino kangaroo rat and 

is the only core population in Riverside 

County. Historically, the San 

Bernardino kangaroo rat occurred along 

the San Jacinto River from the upper 

reach of habitat in the river downstream 

past State Route 79. The physical and 

biological features within this unit may 

require special management 

considerations or protection to 

minimize impacts associated with flood 

control operations, channelization, 

water conservation projects 

(groundwater recharge ponds), off-road 

vehicle activity, and urban 

development. 

Lands within Unit 3 are adjacent to 

lands of the Soboba Band of Luisen ̃ o 

Indians Reservation, which were 

included in the 2002 final critical 

habitat designation (see 50 CFR 17.95(a); 

67 FR 19812, April 23, 2002). We are 

not designating these Tribal lands as 

critical habitat for the San Bernardino 

kangaroo rat in this final revised critical 

habitat designation (see ‘‘Governmentto-Government Relationship with 

Tribes’’ section for a detailed 

discussion). 

All private lands proposed as critical 

habitat in the San Jacinto River wash 

fall within the boundaries of the 

Western Riverside County MSHCP. We 

excluded private lands under the 

jurisdiction of permittees to the MSHCP 

and all lands owned and managed by 

permittees to the MSHCP within this 

area (263 ac (106 ha)) based on our 

partnership and the benefits provided to 

the San Bernardino kangaroo rat by the 

Western Riverside County MSHCP. We 

are also excluding 39 ac (16 ha) of land 

owned by the Eastern Municipal Water 

District related to The Soboba Band of 

Luisen ̃ o Indians Settlement Act and 

implementation of its associated 

settlement agreement. Please see 

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

Act’’ section for detailed discussions of 

these exclusions. 

Unit 4: Cable Creek Wash 

Unit 4 consists of approximately 483 

ac (195 ha) and is located in San 

Bernardino County. This unit 

encompasses the Cable Creek alluvial 

floodplain from the mouth of Cable 

Canyon to I–215 where the creek 

becomes channelized. Because Cable 

Creek is not impeded by a dam or debris 

basin, the fluvial dynamics necessary to 

maintain the PCEs of San Bernardino 

kangaroo rat habitat remain in this 

unchannelized portion of Cable Creek. 

This critical habitat unit was occupied 

at the time of listing, is currently 

occupied, and contains all of the 

features essential to the conservation of 

the San Bernardino kangaroo rat. 

Additionally, this unit contains a likely 

self-sustaining population of San 

Bernardino kangaroo rats that may be 

important for the long-term 

conservation of the subspecies. This 

unit is demographically isolated from 

the core population of the subspecies in 

the Lytle/Cajon wash (Unit 2). A 

stochastic event causing dramatic 

population decline or local extirpation 

in Unit 2 may have little effect on Unit 

4. In such a case, the population in Unit 

4 could serve as a source of individuals 

for repopulating Unit 2. The physical 

and biological features contained within 

this unit may require special 

management considerations or 

protection to minimize impacts 

associated with flood control 

operations, water conservation projects, 

sand and gravel mining, and urban 

development. 

Unit 5: Bautista Creek 

Unit 5 consists of approximately 111 

ac (45 ha) and is located in Riverside 

County. This unit includes occupied 

habitat from the unchannelized reach of 

Bautista Creek (i.e., from the existing 

instream mining operation to upstream 

areas where the grade of the creek 

precludes the formation of alluvial 

terraces or braids). This unit represents 

the southernmost extent of the San 

Bernardino kangaroo rat’s current range. 

The wash system in upper Bautista 

Creek retains fluvial dynamics because 

it is not impeded by a dam, debris basin, 

or concrete channelization. This critical 

habitat unit was occupied at the time of 

listing, is currently occupied, and 

contains all of the features essential to 

the conservation of the San Bernardino 

kangaroo rat. Historically, the 

subspecies occurred upstream of the 

Bautista flood control basin until the 

topography of the canyon becomes too 

steep. This unit contains agricultural 

areas that could be occupied at low 

densities by this subspecies (PCE 3). 

Additionally, this unit contains a likely 

self-sustaining population of San 

Bernardino kangaroo rats that may be 

important for the long-term 

conservation of the subspecies. This 

unit is demographically isolated from 

the core population of the subspecies in 

the San Jacinto wash (Unit 3) by a 

concrete-lined channel. This channel 

directs flows from upper Bautista Creek 

downstream to the San Jacinto River. 

Given the current status of the San 

Bernardino kangaroo rat and ongoing 

threats to its habitat, it is important for 

the conservation of the San Bernardino 

kangaroo rat that natural fluvial 

processes in occupied habitat are 

maintained. A stochastic event could 

cause a dramatic population decline or 

local extirpation in either Units 3 or 5. 

In such a case, through relocation for 

the purposes of recovery, the population 

in Unit 5 could serve as a source of 

individuals for repopulating Unit 3, and 

vice versa. The physical and biological 

features contained within this unit may 

require special management 

considerations or protection to 

minimize impacts associated with 

agricultural activities, sand and gravel 

mining, and urban development. 

All private lands proposed as critical 

habitat in Bautista Creek fall within the 

boundaries of the Western Riverside 

County MSHCP. We excluded private 

lands under the jurisdiction of 

permittees to the MSHCP and all lands 

owned and managed by permittees to 

the MSHCP within this area (332 ac (134 


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ha)) based on our partnership and the 

benefits provided to the San Bernardino 

kangaroo rat by the Western Riverside 

County MSHCP (see ‘‘Exclusions Under 

Section 4(b)(2) of the Act’’ section for a 

detailed discussion). 

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, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

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 a new 

species is listed or critical habitat is 

subsequently designated that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action or such 

discretionary involvement or control is 

authorized by law. Consequently, 

Federal agencies may need to request 

reinitiation of consultation with us on 

actions for which formal consultation 

has been completed, if those actions 

may affect subsequently listed species 

or designated critical habitat. 

Federal activities that may affect the 

San Bernardino kangaroo rat or its 

designated critical habitat will require 

consultation under section 7(a)(2) of 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 the Service 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 

permitted, 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 remain functional 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 San 

Bernardino kangaroo rat. Generally, the 

conservation role of the San Bernardino 

kangaroo rat critical habitat units is to 

support occurrences of the subspecies in 

the Santa Ana River, Lytle/Cajon Creeks, 

the San Jacinto River, Cable Creek, and 

Bautista Creek, which in combination 

with core occurrences on private land 

excluded from critical habitat 

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

Act, comprise the core populations of 

this subspecies. 

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

to briefly 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 San Bernardino kangaroo rat 

include, but are not limited to (please 

see ‘‘Special Management 

Considerations or Protection’’ section 

for a more detailed discussion on the 

impacts of these actions to the listed 

subspecies): 

(1) Actions that would result in loss 

or fragmentation of suitable habitat, 

such as urban and industrial 

development, sand and gravel mining, 

off-road vehicle activity, and 

groundwater recharge operations. These 

activities could eliminate or reduce 

habitat necessary for the growth and 

reproduction of the San Bernardino 

kangaroo rat. Resulting fragmentation 

could isolate populations, increasing 

risk of local extirpations from stochastic 

events and decreasing movement 

between remaining patches of suitable 

habitat. 

(2) Actions that would alter natural 

hydrological and geomorphological 

processes necessary to maintain alluvial 

sage scrub habitat. Such activities could 

include, but are not limited to: channel 

alteration; flood control operations; and 

construction of flood control structures 

such as dams, levees, and detention 

basins. These activities could eliminate 

or reduce preferred habitat conditions 

for the growth and reproduction of the 

San Bernardino kangaroo rat. Periodic 

high flows and flood events provide 

sediment scour, sediment deposition, 

and thinning of vegetation which 

maintains alluvial sage scrub habitat. 

(3) Actions that would appreciably 

decrease habitat value or quality 


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through indirect and edge effects. Such 

activities could include, but are not 

limited to: urban, industrial, and 

agricultural development; and 

construction of roads and railways. 

These activities could have indirect 

effects that could lead to increases in 

human activity, in light levels during 

nighttime foraging, in predation by 

domestic and feral animals associated 

with residential development, and the 

invasion of exotic plants, or otherwise 

eliminate or reduce preferred habitat 

conditions for the San Bernardino 

kangaroo rat. Measures to minimize the 

impacts of these activities to the species 

and its habitat could include the 

installation of fencing to decrease 

predation by domestic and feral 

animals, placement of lighting 

structures (e.g., street lights) such that 

the light is directed away from habitat, 

and the use of best management 

practices to reduce the amount of water 

entering habitat due to sheet flow. 

We consider all of the units 

designated as critical habitat to be 

within the geographical area occupied 

by the subspecies at the time of listing, 

and to contain features essential to the 

conservation of the San Bernardino 

kangaroo rat. Federal agencies already 

consult with us on activities in areas 

occupied by the San Bernardino 

kangaroo rat that may affect the 

subspecies to ensure that their actions 

do not jeopardize the continued 

existence of the San Bernardino 

kangaroo rat. 

Exclusions 

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

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

the Secretary must designate and 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 our 

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

Economic Analysis 

Following the publication of the 

proposed revised critical habitat 

designation, we conducted an economic 

analysis to estimate the potential 

economic effect of the designation. The 

draft economic analysis (DEA; dated 

February 6, 2008) was made available 

for public review and comment from 

April 16, 2008, to May 16, 2008 (73 FR 

20581), and from July 29, 2008, to 

August 13, 2008 (73 FR 43910). The 

Service also completed an Addendum to 

the Economic Analysis (dated May 21, 

2008) that addressed the potential 

economic impacts associated with the 

additional 1,579 ac (639 ha) presented 

in the April 16, 2008 NOA. The 

Addendum was made available for 

public review and comment from July 

29, 2008, to August 13, 2008 (73 FR 

43910). Substantive comments and 

information received on the DEA and 

Addendum are summarized above in 

the ‘‘Public Comment’’ section and are 

incorporated into the final analysis, as 

appropriate. Taking any relevant new 

information into consideration, the 

Service completed a final economic 

analysis (FEA) (dated August 29, 2008) 

of the designation that updates the DEA 

by removing impacts that were not 

considered probable or likely to occur, 

and by adding an estimate of the costs 

associated solely with the designations 

of critical habitat for the San Bernardino 

kangaroo rat (incremental impacts). 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for the 

San Bernardino kangaroo rat. This 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. The economic 

analysis considers the economic 

efficiency effects that may result from 

the designation. 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). It 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 

economic analysis 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. 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. 

Finally, the economic analysis looks 

retrospectively at costs that have been 

incurred since the date we listed the 

San Bernardino kangaroo rat as 

endangered (September 24, 1998; 63 FR 

51005), and considers those costs that 

may occur in the years following the 

revised designation of critical habitat, 

with the timeframes for this analysis 

varying by activity. 

The economic analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, local zoning 

laws, State and natural resource laws, 

and enforceable management plans and 

best management practices applied by 

other State and Federal agencies. 

Economic impacts that result from these 

types of protections are not included in 

the analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The economic analysis examines 

activities taking place both within and 

adjacent to the designation. It estimates 

impacts based on activities that are 

‘‘reasonably foreseeable’’ including, but 

not limited to, activities that are 

currently authorized, permitted, or 

funded, or for which proposed plans are 

currently available to the public. 

Accordingly, the analysis bases 

estimates on activities that are likely to 

occur within a 20-year timeframe, from 

when the proposed rule became 

available to the public (June 19, 2007, 

72 FR 33808). The 20-year timeframe 

was chosen for the analysis because, as 

the time horizon for an economic 

analysis is expanded, the assumptions 

on which the projected number of 

projects and cost impacts associated 

with those projects are based become 

increasingly speculative. 

The economic analysis is intended to 

quantify the baseline and incremental 

economic impacts of all potential 

conservation efforts for the San 

Bernardino kangaroo rat associated with 

the following activities: (1) Water 

conservation; (2) flood control; (3) urban 

development; (4) sand and gravel 

mining; (5) agricultural activities; and 

(6) off-road vehicle activities. Baseline 

impacts include impacts associated with 

overlapping protections from other 

Federal, State, and local laws that aid 


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habitat conservation in the study area. 

In other words, those impacts associated 

with the listing of the species and not 

associated with critical habitat. 

Incremental impacts are those expected 

to occur solely because of the 

designation of critical habitat; these 

would not be expected to occur but for 

the designation of critical habitat. 

Potential incremental economic impacts 

are estimated over a 23-year period from 

2008 through 2030 and include an 

overall cost of $164.4 million in present 

value terms using a 7 percent discount 

rate. No incremental economic impacts 

are expected in areas excluded from 

critical habitat under section 4(b)(2) of 

the Act. The impacts in areas excluded 

from critical habitat are all considered 

to be baseline impacts. 

For the purposes of the economic 

analysis and assessing effects on 

development, the revised critical habitat 

was divided into upland and lowland 

areas. Lowland areas are occupied by 

the San Bernardino kangaroo rat yearround at high densities of individuals. 

Because this is such a narrow endemic 

subspecies found in very few locations, 

any loss of lowland habitat in which the 

functional ability of a lowland critical 

habitat unit was adversely modified or 

destroyed would also likely result in 

jeopardy to this narrow endemic 

subspecies. Therefore, any adverse 

modification decision for lowland 

habitat areas would likely be coincident 

to a jeopardy determination for the same 

action. Thus, potential economic 

impacts from conservation efforts that 

may be necessary to avoid adverse 

modification of critical habitat within 

lowland areas are considered coextensive with the impacts of the listing 

of the San Bernardino kangaroo rat and, 

for the purposes of this analysis, are 

considered to be in the baseline. 

The general conservation role of 

critical habitat within the upland 

habitat areas is to act as refuge for the 

San Bernardino kangaroo rat during 

flooding events that inundate the lowlying alluvial fans (i.e., the lowlands) 

that this subspecies usually occupies. 

Conservation efforts not otherwise 

necessary to avoid jeopardy to the San 

Bernardino kangaroo rat may be 

required in upland areas to ensure that 

the conservation role and function of 

the critical habitat unit are conserved. 

Therefore, incremental costs due to the 

designation of critical habitat may be 

incurred in upland areas as it is 

reasonable to expect that the Service 

may recommend avoidance and 

minimization efforts in upland areas 

designated as critical habitat (up to and 

including complete avoidance) 

specifically to avoid the destruction or 

adverse modification of critical habitat. 

Thus, impacts of conservation efforts 

that may result in reduced or no 

development in the upland areas are 

considered incremental impacts of 

critical habitat designation. 

The vast majority of incremental 

impacts attributed to critical habitat 

designation are due to potential 

constraints on development within 

upland areas. The projected number of 

housing units in upland areas of critical 

habitat is 791 according to estimates 

using the Southern California 

Association of Governments forecasts. 

Assuming the potential constraints on 

development in the upland areas result 

in complete avoidance of these areas, 

total incremental impacts are projected 

to be approximately $44.4 million 

present value at a 7 percent discount 

rate over a 23-year period. In addition 

to the Southern California Association 

of Government forecasts, we received 

detailed projected housing information 

from the Lytle Creek Development Co. 

for certain upland areas in Unit 2. The 

Lytle Creek Development Co. projects an 

additional 3,962 housing units in those 

areas. Again assuming complete 

avoidance of upland areas, total 

additional incremental impacts are 

projected to be approximately $120 

million present value at a 7 percent 

discount rate over a 23-year period. A 

very small portion of incremental effects 

are attributed to water conservation 

activities in upland areas, 

approximately $140 million annualized 

at a 7 percent discount rate. 

In addition to projecting the 

incremental impacts expected to occur 

solely because of the designation of 

critical habitat, the economic analysis 

considers the potential economic effects 

of actions relating to the conservation of 

the San Bernardino kangaroo rat, 

including costs associated with sections 

4, 7, 9, and 10 of the Act. 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 San 

Bernardino kangaroo rat in areas 

containing features essential to the 

conservation of the subspecies. The FEA 

estimates that the potential economic 

effects of actions relating to the 

conservation of this subspecies, 

including costs associated with sections 

4, 7, and 10 of the Act (baseline costs, 

not attributable to critical habitat), will 

be $202.7 million present value at a 7 

percent discount rate over the next 23 

years. 

After consideration of the impacts 

under section 4(b)(2) of the Act, we have 

not excluded any areas from the final 

critical habitat designation based on the 

identified economic impacts. The final 

economic analysis is available at 

http://www.regulations.gov or upon 

request from the Carlsbad Fish and 

Wildlife Office (see ADDRESSES section). 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands 

within the geographical area occupied 

by the species at the time of listing on 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential for the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that, on the basis of the 

best scientific and commercial data 

available at the time of designation, the 

habitat that is identified, if managed or 

protected, could provide for the survival 

and recovery of the species. 

The identification of areas that 

contain features essential to the 

conservation of the species that can, if 

managed or protected, provide for the 

recovery of a species, is beneficial. The 

process of proposing and finalizing a 

critical habitat rule provides the Service 

with the opportunity to determine the 

physical and biological features 

essential to the conservation of the 

species within the geographical area 

occupied by the species at the time of 

listing, as well as to determine other 

areas essential for the conservation of 

the species. The designation process 

includes peer review and public 

comment on the identified physical and 

biological features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not be 

included in the areas the Service 

identifies as meeting the definition of 

critical habitat. 

The consultation provisions under 

section 7(a)(2) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with the Service on actions that 

may affect critical habitat and must 

avoid destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on actions that may 

affect a listed species and refrain from 

undertaking actions that are likely to 

jeopardize the continued existence of 

such species. The analysis of effects to 

critical habitat is a separate and 


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different analysis from that of the effects 

to the species. Therefore, the difference 

in outcomes of these two analyses 

represents the regulatory benefit of 

critical habitat. For some species, and in 

some locations, the outcome of these 

analyses will be similar, because effects 

to habitat will often also result in effects 

to the species. However, the regulatory 

standard is different, as the jeopardy 

analysis investigates the action’s impact 

to survival and recovery of the species, 

while the adverse modification analysis 

investigates the action’s effects to the 

designated habitat’s contribution to 

conservation. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater benefits to the recovery 

of a species than would listing alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a consultation is only required where 

there is a Federal nexus (an action 

authorized, funded, or carried out by 

any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure that 

the conservation role and function of 

those areas that contain the physical 

and biological features essential to the 

conservation of the species or of 

unoccupied areas that are essential for 

the conservation of the species are not 

appreciably reduced. Critical habitat 

designation alone, however, does not 

require private property owners to 

undertake specific steps toward 

recovery of the species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect critical habitat. However, if we 

determine through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

is initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to the primary constituent 

elements, but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation is initiated under section 

7(a)(2) of the Act, the end result of 

consultation is to avoid jeopardy to the 

species and/or adverse modification of 

its critical habitat, but not necessarily to 

manage critical habitat or institute 

recovery actions on critical habitat. 

Conversely, voluntary conservation 

efforts implemented through 

management plans institute proactive 

actions over the lands they encompass 

and are put in place to remove or reduce 

known threats to a species or its habitat; 

therefore, implementing recovery 

actions. We believe that in many 

instances the regulatory benefit of 

critical habitat is minimal when 

compared to the conservation benefit 

that can be achieved through 

implementing Habitat Conservation 

Plans (HCPs) under section 10 of the Act 

or other habitat management plans. The 

conservation achieved through such 

plans is typically greater than what we 

achieve through multiple site-by-site, 

project-by-project, section 7(a)(2) 

consultations involving consideration of 

critical habitat. Management plans 

commit resources to implement longterm management and protection to 

particular habitat for at least one and 

possibly other listed or sensitive 

species. Section 7(a)(2) consultations 

only commit Federal agencies to 

preventing adverse modification of 

critical habitat caused by the particular 

project, and they are not committed to 

provide conservation or long-term 

benefits to areas not affected by the 

proposed action. Thus, implementation 

of an HCP or management plan that 

incorporates enhancement or recovery 

as the management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation. 

Another benefit of including lands in 

critical habitat is that designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for the San 

Bernardino kangaroo rat. In general, 

critical habitat designation always has 

educational benefits; however, in some 

cases, they may be redundant with other 

educational effects. For example, HCPs 

have significant public input and may 

largely duplicate the educational 

benefits of a critical habitat designation. 

Including lands in critical habitat also 

would inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

cooperation of non-Federal landowners. 

More than 60 percent of the United 

States is privately owned (National 

Wilderness Institute 1995, p.2), and at 

least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002, p. 720; Stein et al. 1995, p. 400) 

found that only about 12 percent of 

listed species were found almost 

exclusively on Federal lands (90 to 100 

percent of their known occurrences 

restricted to Federal lands) and that 50 

percent of federally listed species are 

not known to occur on Federal lands at 

all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners. Building partnerships and 

promoting voluntary cooperation of 

landowners are essential to 

understanding the status of species on 

non-Federal lands, and are necessary to 

implement recovery actions such as 

reintroducing listed species, habitat 

restoration, and habitat protection. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 


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through regulatory methods (61 FR 

63854, December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996, pp. 5–6; 

Bean 2002, pp. 2–3; Conner and 

Mathews 2002, pp. 1–2; James 2002, pp. 

270–271; Koch 2002, pp. 2–3; Brook et 

al. 2003, pp. 1639–1643). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999, pp. 

1264–1265; Brook et al. 2003, pp. 1644– 

1648). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999, p. 1263; Bean 2002, 

p. 2; Brook et al. 2003, pp. 1644–1648). 

The magnitude of this negative outcome 

is greatly amplified in situations where 

active management measures (such as 

reintroduction, fire management, and 

control of invasive species) are 

necessary for species conservation (Bean 

2002, pp. 3–4). We believe that the 

judicious exclusion of specific areas of 

non-federally owned lands from critical 

habitat designations can contribute to 

species recovery and provide a superior 

level of conservation than critical 

habitat alone. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus the 

benefits of excluding areas that are 

covered by partnerships or voluntary 

conservation efforts can often be high. 

Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

The benefits of excluding lands with 

HCPs or other approved long-term 

management plans from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed as a result of the 

critical habitat designation. Most HCPs 

and other conservation plans take many 

years to develop, and upon completion, 

are consistent with the recovery 

objectives for listed species that are 

covered within the plan area. Many also 

provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine our efforts and partnerships 

as well. Our experience in 

implementing the Act has found that 

designation of critical habitat within the 

boundaries of management plans that 

provide conservation measures for a 

species is a disincentive to many 

entities that are either currently 

developing such plans, or 

contemplating doing so in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species are 

affected. Addition of a new regulatory 

requirement would remove a significant 

incentive for undertaking the time and 

expense of management planning. 

A related benefit of excluding lands 

covered by approved HCPs and 

management plans that cover listed 

species from critical habitat designation 

is the unhindered, continued ability it 

gives us to seek new partnerships with 

future plan participants, including 

States, counties, local jurisdictions, 

conservation organizations, and private 

landowners, which together can 

implement conservation actions that we 

would be unable to accomplish 

otherwise. Designating lands within 

approved management plan areas as 

critical habitat would likely have a 

negative effect on our ability to establish 

new partnerships to develop these 

plans, particularly plans that address 

landscape-level conservation of species 

and habitats. By excluding these lands, 

we preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

Both HCPs and Natural Communities 

Conservation Plan (NCCP)–HCP 

applications require consultation, which 

would review the effects of all HCPcovered activities that might adversely 

impact the species under a jeopardy 

standard, including possibly significant 

habitat modification, even without the 

critical habitat designation. 

Additionally, all other Federal actions 

that may affect the listed species still 

require consultation under section 

7(a)(2) of the Act, and we review these 

actions for possibly significant habitat 

modification in accordance with the 

jeopardy standard under Section 7(a)(2). 

The information provided in the 

previous sections applies to all the 

following discussions of benefits of 

inclusion or exclusion of critical habitat. 

Application of Section 4(b)(2)—Other 

Relevant Impacts—Conservation 

Partnerships 

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

Secretary to exclude areas from critical 

habitat for other relevant impacts 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. As 

discussed above in the ‘‘Conservation 

Partnerships on Non-Federal Lands’’ 

section, we believe that designation can 

negatively impact the working 

relationships and conservation 

partnerships we have formed with 

private landowners. The Service 

recognizes that 80 percent of 

endangered or threatened species occur 

either partially or solely on private 

lands (Crouse et al. 2002) and we will 

only achieve recovery of federally listed 

species with the cooperation of private 

landowners. 

In making the following exclusions, 

we evaluated the benefits of designating 

these non-Federal lands that may not 

have a Federal nexus for consultation 

while considering if our existing 

partnerships have, or will, result in 

greater conservation benefits to the San 

Bernardino kangaroo rat and the 

physical or biological features essential 

to its conservation than a critical habitat 

designation. As discussed in the 

‘‘Benefits of Designating Critical 

Habitat’’ section above, conservation 

partnerships that result in 

implementation of an HCP or other 

management plan that considers 

enhancement or recovery as the 

management standard often provide as 

much or more benefit than consultation 

for critical habitat designation (the 

primary benefit of a designation). 

In considering the benefits of 

including lands in a designation that are 

covered by a current HCP or other 

management plan, we evaluate a 

number of factors to help us determine 

if the plan provides equivalent or 

greater conservation benefit than would 


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likely result from consultation on a 

designation: 

(1) Whether the plan is complete and 

provides protection from destruction or 

adverse modification; 

(2) Whether there is a reasonable 

expectation that the conservation 

management strategies and actions will 

be implemented for the foreseeable 

future, based on past practices, written 

guidance, or regulations; and 

(3) Whether the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. 

We balance the benefits of inclusion 

against the benefits of exclusion by 

considering the benefits of preserving 

partnerships and encouraging 

development of additional HCPs and 

other conservation plans in the future. 

Woolly-Star Preserve Area (WSPA) 

Management Plans 

Approximately 751 ac (304 ha) of the 

765-ac (310 ha) WSPA is within 

proposed critical habitat Unit 1. The 

WSPA is within the 100- to 500-year 

floodplain of the upper Santa Ana River 

immediately downstream from the 

Seven Oaks Dam. The WSPA was 

established in 1988 by the ACOE as part 

of the conservation measures developed 

through a section 7 consultation to 

address impacts to the federally 

endangered Eriastrum densifolium ssp. 

sanctorum resulting from construction 

of the Seven Oaks Dam (Service File: 1– 

6–88–F–6, June 22, 1989). The San 

Bernardino County Flood Control 

District, Orange County Flood Control 

Division, and Riverside County Flood 

Control and Water Conservation District 

are responsible for the operation of the 

Seven Oaks Dam. 

A management plan for Eriastrum 

densifolium ssp. sanctorum was 

prepared in coordination with the 

Service, California Department of Fish 

and Game, ACOE, and the flood control 

districts (Chambers Group, Inc. 1993). 

The 1993 Management Plan for the 

Santa Ana River Woolly-Star was 

created to be implemented on the 765- 

ac (310-ha) WSPA (Chambers Group, 

Inc. 1993, p. 2). This plant inhabits early 

and intermediate successional stages of 

alluvial fan scrub habitat, which are the 

preferred habitat areas for the San 

Bernardino kangaroo rat. The overall 

strategy for the management plan on 

WSPA lands is to avoid physical 

disturbances to alluvial habitat and to 

allow for disturbances by natural 

processes (Chambers Group, Inc. 1993, 

p. 3–1). The 1993 Management Plan for 

E. d. ssp. sanctorum includes a 

description of management tasks, which 

are currently being implemented, that 

benefit habitat for E. d. ssp. sanctorum. 

Implementation of the plan is carried 

out by the flood control districts 

identified above. Though not addressed 

directly by the plan, these management 

tasks benefit the San Bernardino 

kangaroo rat as well. These management 

tasks include: Identification and 

implementation of habitat renewal 

methods; control of exotic species; 

reduction of off-road vehicle activity, 

trash dumping, and other negative 

human impacts; and a public awareness 

program (Chambers Group, Inc. 1993, p. 

3–2). Lands within the WSPA were 

placed under a conservation easement 

that is jointly held by the flood control 

districts of San Bernardino, Riverside, 

and Orange counties (Lovell 2007, p. 1). 

Since the inception of the 1993 

Management Plan for the Santa Ana 

River Woolly-Star, ongoing biological 

studies and management tasks have 

been conducted on the WSPA to 

increase understanding of E. d. ssp. 

sanctorum habitat (alluvial scrub) and 

habitat renewal and to increase the 

quality of alluvial habitat. Studies and 

management tasks involve population 

and habitat monitoring, along with 

habitat renewal and population 

expansion of E. d. ssp. sanctorum 

(PSOMAS and CSUF 2004, p.1). These 

ongoing efforts help to ensure not only 

the conservation of E. d. ssp. sanctorum, 

but alluvial habitat in general and the 

native plants and animals that depend 

on this habitat, including the San 

Bernardino kangaroo rat. 

The ACOE, San Bernardino County 

Flood Control District, Orange County 

Flood Control Division, and Riverside 

County Flood Control and Water 

Conservation District have committed to 

the development and implementation of 

a Multiple Species Habitat Management 

Plan (MSHMP) for the WSPA that will 

update the 1993 plan and include 

habitat management specifically for the 

San Bernardino kangaroo rat and the 

federally endangered Dodecahema 

leptoceras as part of the conservation 

measures proposed during consultation 

regarding the effects of operation and 

maintenance of the dam on Eriastrum 

densifolium ssp. sanctorum, D. 

leptoceras and the San Bernardino 

kangaroo rat. The goals of the draft 

MSHMP specific to the San Bernardino 

kangaroo rat include: (1) Maintenance 

and/or expansion of the current 

subspecies distribution within the 

WSPA; (2) optimization of habitat 

conditions; and (3) maintenance and/or 

enhancement of populations of the San 

Bernardino kangaroo rat within the 

WSPA. 

General objectives of the MSHMP in 

support of the San Bernardino kangaroo 

rat management goals are to (1) monitor 

the San Bernardino kangaroo rat and 

relevant habitat elements according to 

standardized protocols; (2) conduct 

studies to fill gaps in knowledge related 

to subspecies biology and habitat; (3) 

measure San Bernardino kangaroo rat 

response to experimental habitat 

treatments and potential management 

measures; (4) establish priority of areas 

for implementation of habitat 

management to maintain or enhance 

suitability for the subspecies; and (5) 

refine management measures over time 

using an adaptive management 

framework. Information gathered 

through the implementation of the 

MSHMP will be used to support 

science-based management decisions 

and evaluation of management success. 

Various potential management 

alternatives may be implemented such 

as protective management, disturbance 

control, nonnative grass control, habitat 

enhancement and restoration, and 

habitat renewal. The management of 

this area is anticipated to help to 

maintain and protect alluvial wash and 

upland habitat (PCEs 1, 2, and 3) 

required by the San Bernardino 

kangaroo rat. The MSHMP is currently 

in draft form and will replace the 1993 

management plan. The MSHMP will be 

reviewed by the resource agencies for 

their concurrence prior to 

implementation (Service 2002b, p. 8). 

The ACOE, San Bernardino County 

Flood Control District, Orange County 

Flood Control Division, and Riverside 

County Flood Control and Water 

Conservation District are responsible for 

the development and implementation of 

the MSHMP. 

Protocol surveys (live-trapping) 

conducted during 2005 and 2006 

confirm that portions of the WSPA are 

currently occupied by the San 

Bernardino kangaroo rat (Service, 

unpublished Geographic Information 

System data), and habitat surveys 

suggest that much of this area is likely 

to support the San Bernardino kangaroo 

rat (MEC Analytical Systems, Inc. 2000, 

fig. 24). Ongoing surveys and habitat 

management to benefit the San 

Bernardino kangaroo rat are anticipated 

as part of the MSHMP currently in 

development. The Service is working 

with the ACOE and their biological 

consultants on baseline subspecies 

surveys and trials of habitat 

manipulations, and management 

practices followed by trapping surveys 

to show both density and distribution of 

the San Bernardino kangaroo rat within 

the WSPA. These actions are being 

undertaken as part of the development 

of a final MSHMP. 


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The 1998 final listing rule for the San 

Bernardino kangaroo rat identified 

habitat loss, destruction, degradation, 

and fragmentation due to sand and 

gravel mining operations, flood control 

projects, and urban development as 

primary threats to the San Bernardino 

kangaroo rat. As described above, the 

WSPA Management Plans have 

provided and will continue to provide 

enhancement of the habitat by removing 

or reducing threats to this subspecies 

and the PCEs. The WSPA Management 

Plans preserve habitat that supports 

identified core populations of this 

subspecies and, therefore, provide for 

recovery. 

In the 1998 final listing rule, we 

discussed that the area set aside by the 

ACOE as mitigation (i.e., the WSPA) for 

the then proposed Seven Oaks Dam 

project was not adequate to conserve 

this subspecies. We stated that the 

conserved area only represents 

approximately 4 percent of the alluvial 

scrub in the area. We also stated in the 

listing rule that the majority of the 

conserved habitat will no longer receive 

the hydrological scouring considered 

necessary to maintain alluvial scrub 

habitat. Although this may be true of the 

Santa Ana River, Mill Creek is not 

impeded by dams and is the primary 

source of sediment and alluvial 

processes to this area. The primary 

objective of the existing WSPA and the 

additional conservation measures 

outlined in the Biological Assessment 

for the Seven Oaks Dam, Santa Ana 

River Mainstem Project (August 2000) is 

to compensate for potential changes in 

floodplain characteristics and listed 

species’ (including the San Bernardino 

kangaroo rat) habitat brought about by 

construction and operation of Seven 

Oaks Dam (Service 2002b, p. 7). These 

WSPA lands are currently designated as 

critical habitat. For these reasons, we 

determined that the WSPA is important 

to the subspecies and the associated 

management plans adequately conserve 

habitat for the San Bernardino kangaroo 

rat. Based on the reasoning provided 

below, we excluded from Unit 1 the 

approximately 751 ac (304 ha) of nonFederal lands within the WSPA 

Management Plans area from the final 

revised critical habitat designation 

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

Benefits of Inclusion—Woolly-Star 

Preserve Area (WSPA) Management 

Plans 

The inclusion of approximately 751 

ac (304 ha) of WSPA lands in the 

revised critical habitat designation 

could be beneficial because it identifies 

lands to be managed for the 

conservation of the San Bernardino 

kangaroo rat. The process of proposing 

and finalizing the revised critical habitat 

rule provided the Service with the 

opportunity to evaluate and refine the 

features or PCEs essential to the 

conservation of the subspecies within 

the geographical area occupied by the 

San Bernardino kangaroo rat at the time 

of listing, as well as to evaluate whether 

there are other areas essential for the 

conservation of the subspecies. The 

designation process included peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. However, 

identification of important habitat and 

habitat features for the San Bernardino 

kangaroo rat within the area covered by 

the WSPA Management Plans and 

efforts to conserve the subspecies and 

its habitat were initiated prior to the 

proposed revised critical habitat rule 

and will continue into the future. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

planned and implemented in the WSPA. 

The process of developing the WSPA 

Management Plans has involved several 

partners including (but not limited to) 

flood control districts of San 

Bernardino, Riverside, and Orange 

counties, California Department of Fish 

and Game, ACOE, and the Service. 

The educational benefits of critical 

habitat designation derived through 

informing WSPA partners and other 

members of the public of areas 

important for the long-term 

conservation of this subspecies have 

already been and continue to be 

achieved through: (1) Development of 

the WSPA Management Plans; (2) the 

original designation process in 2002; 

and (3) publication of the proposed 

revisions to critical habitat in 2008, 

notices of public comment periods, and 

the public hearings. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. All 

of the approximately 751 ac (304 ha) of 

WSPA lands in Unit 1 that are being 

excluded are on private property, with 

the potential Federal nexus for the San 

Bernardino kangaroo rat as a result of 

actions by the ACOE associated with the 

Santa Ana River in the area. Therefore, 

including this area would provide some 

regulatory benefits under section 7(a) of 

the Act. 

However, the WSPA Management 

Plans address conservation issues from 

a coordinated, integrated perspective 

rather than a piecemeal project-byproject approach that could result in 

this area absent these plans, and the 

plans will achieve more San Bernardino 

kangaroo rat conservation than would 

be achieved through such multiple siteby-site, project-by-project, section 7 

consultations involving consideration of 

critical habitat. Furthermore, the WSPA 

Management Plans include proactive 

monitoring and management of 

conserved lands (as previously 

described), thereby reducing known 

threats to the San Bernardino kangaroo 

rat and its habitat. These measures 

provide assurance that the features 

essential to the conservation of the San 

Bernardino kangaroo rat within the 

WSPA will be permanently protected 

and managed to conserve this 

subspecies. In light of the conserved 

status of the lands and the potential 

piecemeal project-by-project approach 

for future section 7 consultations on 

these lands, we conclude that the 

potential regulatory benefit of 

designating this area as critical habitat 

is minimal. The WSPA Management 

Plans provide as much or more benefit 

than a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Benefits of Exclusion—Woolly-Star 

Preserve Area (WSPA) Management 

Plans 

Multi-jurisdiction management plans 

(such as the 1993 WSPA Management 

Plan and the draft MSHMP that is being 

developed) foster an ecosystem-based 

approach for habitat conservation 

planning purposes. Once such an 

ecosystem-based management plan is 

developed (similar to the HCP 

conservation planning process), 

conservation issues can be addressed 

through a coordinated approach. 

Coordinating landscape-scale 

conservation with the flood control 

districts and the ACOE will assist in the 

preservation of interconnected linkage 

areas and populations that support 

recovery of the subspecies. We believe 

that the benefits of excluding lands 

under the scenario described above are: 

(1) Retaining and fostering the existing 

partnership and working relationship 

with all stakeholders; and (2) 

encouraging future regional habitat 

management plans or HCP development 

or development of other species/habitat 


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conservation plans. Additionally, 

exclusion of the existing WSPA (which 

is being incorporated into the draft 

MSHMP) demonstrates our good faith 

effort to work productively with nonFederal entities, which should 

encourage initiation and completion of 

other multi-jurisdiction management 

plans. Designation of lands covered by 

the WSPA Management Plan may 

discourage other landowners or flood 

control districts from seeking or 

completing similar conservation efforts. 

We developed a working relationship 

with the San Bernardino County Flood 

Control District, Orange County Flood 

Control Division, and Riverside County 

Flood Control and Water Conservation 

District through the development of the 

1993 WSPA Management Plan and the 

draft MSHMP that is being developed, 

which incorporates appropriate 

protections and management for the San 

Bernardino kangaroo rat, its habitat, and 

the features essential to the conservation 

of this subspecies. By excluding 751 ac 

(304 ha) of lands in Unit 1 from 

designation, we are eliminating an 

essentially redundant layer of regulatory 

review for projects covered by the 

WSPA Management Plans, enhancing 

our working relationship with the flood 

control districts, and encouraging new 

partnerships with other water districts, 

landowners, and jurisdictions. We 

believe these partnerships are critical 

for the conservation of the San 

Bernardino kangaroo rat. 

The Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Woolly-Star 

Preserve Area (WSPA) Management 

Plans 

We reviewed and evaluated the 

proposed designation of essential 

habitat in the WSPA and determined 

that the benefits of excluding critical 

habitat on 751 ac (304 ha) of land in the 

WSPA outweigh the benefits of 

designating these lands as critical 

habitat. This area is protected by a 

conservation easement jointly held by 

the flood control districts of San 

Bernardino, Riverside, and Orange 

counties. Because these lands are part of 

an established conservation easement, 

they are protected and include 

permanent management that is funded 

by an endowment. These measures 

provide assurance that the features 

essential to the conservation of the San 

Bernardino kangaroo rat at the WSPA 

will be permanently protected and 

managed to conserve this subspecies. 

As discussed in the ‘‘Benefits of 

Exclusion’’ section above, we developed 

a close working relationship with the 

participating flood control districts 

responsible for the WSPA Management 

Plans through the development of those 

plans, which incorporate appropriate 

protections and management of this 

subspecies’ essential physical and 

biological features. Those protections 

are consistent with the mandates under 

section 7 of the Act to avoid destruction 

or adverse modification of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. 

Designation of critical habitat alone 

does not achieve recovery or require 

management of those lands identified in 

the critical habitat rule. We believe that 

the recovery benefits of excluding the 

WSPA lands and implementing the 

WSPA Management Plans outweigh the 

recovery benefits of retaining these 

lands as critical habitat. Furthermore, 

the benefits to recovery of inclusion 

primarily have already been met 

through the identification of those areas 

most important to the subspecies. By 

excluding these lands from designation, 

we are eliminating a largely redundant 

layer of regulatory review for a limited 

set of projects on non-Federal lands that 

are addressed by the management plans, 

and we are helping to preserve our 

ongoing partnership with the WSPA 

Management Plan participants and 

encourage new partnerships with other 

landowners and jurisdictions. The 

minimal educational and potential 

regulatory benefits of including the 

WSPA lands in critical habitat are small 

when compared to the impact such a 

designation could have on our current 

and future partnerships. These 

partnerships are integral to achieving 

long-term conservation of the San 

Bernardino kangaroo rat. Designating 

critical habitat on non-Federal lands 

within areas covered by the WSPA 

Management Plans could have a 

detrimental effect to our partnership 

with the plan participants and could be 

a significant disincentive to the 

establishment of future partnerships and 

management plans with other partners. 

We reviewed and evaluated the 

exclusion of the approximately 751 ac 

(304 ha) of non-Federal lands in Unit 1 

covered by the WSPA Management 

Plans from the final revised critical 

habitat designation for the San 

Bernardino kangaroo rat and determined 

that the benefits of excluding these 

lands outweigh the benefits of including 

them. As discussed above, the WSPA 

Management Plans will provide for 

significant preservation and 

management of the physical and 

biological features essential to the 

conservation of the San Bernardino 

kangaroo rat and will help reach the 

recovery goals for this subspecies. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Woolly-Star Preserve 

Area (WSPA) Management Plans 

We determined that the exclusion of 

the non-Federal lands within the area 

covered by the WSPA Management 

Plans from the final revised designation 

of critical habitat for the San Bernardino 

kangaroo rat will not result in the 

extinction of the subspecies. The WSPA 

Management Plans provide protection 

and management in perpetuity of lands 

within Unit 1, including the physical 

and biological features essential to the 

conservation of the San Bernardino 

kangaroo rat. Additionally, the jeopardy 

standard of section 7 of the Act and 

routine implementation of conservation 

measures through the section 7 process 

provide assurances that the subspecies 

will not go extinct as a result of this 

exclusion. 

Former Norton Air Force Base 

Conservation Management Plan (CMP) 

The Norton Air Force Base in Unit 1 

was formally transferred to private 

ownership in 2003. Prior to closure, the 

U.S. Air Force completed installation 

remediation that included the closure of 

an area known as ‘‘Landfill 2.’’ In 

accordance with conservation measures 

outlined in our November 26, 1996, 

biological opinion (1–6–96–F–10) on the 

closure of Landfill 2, the U.S. Air Force 

developed a management plan (the 

Former Norton Air Force Base CMP, 

completed in 2002) for approximately 

267 ac (108 ha) of habitat occupied by 

the San Bernardino kangaroo rat in the 

Santa Ana River wash area (Unit 1). 

Approximately 54 ac (22 ha) in two 

parcels were designated Core 

Management Areas (CMA–1 and CMA– 

2), and 214 ac (87 ha) comprise an Open 

Space Management Area (OSMA). 

Under the CMP completed in March 

2002, these areas are managed 

specifically for the San Bernardino 

kangaroo rat and Eriastrum densifolium 

ssp. sanctorum (U.S. Air Force 2002, pp. 

1–4). 

CMA–1 (approximately 29 ac (12 ha)) 

and CMA–2 (approximately 25 ac (10 

ha)) are located along the southern edge 

of the OSMA. CMA–1 includes both 

floodplain habitat on the ‘wet’ side of an 

existing flood control levee and fenced 

upland habitat behind the levee along 

the northern edge of the Santa Ana 

River. CMA–2 is located entirely within 

the Santa Ana River floodplain. 

Approximately 13 ac (5 ha) of CMA–2 

are owned by the Inland Valley 

Development Agency and the remainder 

of the CMA lands and the OSMA are 

owned by the San Bernardino 

International Airport Authority (SBIA 


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Authority). These areas provide 

important upland habitat that supports 

individual San Bernardino kangaroo rats 

necessary to re-populate the active 

floodplain following large-scale floods 

that scour out lower-elevation terrace 

habitat adjacent to the active river 

channel (Service 2003b, p. 18) (PCE 3). 

Lands within these CMAs are to be 

permanently protected by conservation 

easements (U.S. Air Force 2002, p. 5– 

11). The CMAs are adjacent to the 

approximately 214-acre (87-hectare) 

OSMA that surrounds the existing 

runway of the SBIA. 

The OSMA is an aircraft over-run area 

that is managed in accordance with 

Federal Aviation Administration (FAA) 

guidelines for such lands. However, the 

SBIA Authority manages the OSMA in 

such as a way as to minimize adverse 

impacts to the San Bernardino kangaroo 

rat as described in the CMP and our 

biological opinion issued for the base 

closure (FWS–SB–1723.10, August 5, 

2003). The 214-acre (87-hectare) OSMA 

is in the immediate vicinity of the 

eastern runway, and safety regulations 

require that most of this land remain 

undeveloped (U.S. Air Force 2002, p. 5– 

5). The OSMA is protected from 

flooding by levees, but routine mowing 

required by the FAA keeps vegetation 

from becoming dense and senescent, 

which creates open habitat that may be 

suitable for San Bernardino kangaroo 

rats (Service 2003b, p. 17). No disking 

or other ground disturbance is allowed 

within the OSMA area and 

implementation of the prescribed 

mowing regime is unlikely to result in 

crushing of San Bernardino kangaroo rat 

burrows (Service 2003b, p. 18). 

Upon closure of the Former Norton 

Air Force Base in 2003, the SBIA 

Authority and the Inland Valley 

Development Agency assumed 

responsibility for the management of the 

CMAs pursuant to the CMP (Service 

2003b, p. 6). Management practices 

currently conducted on SBIA Authority 

and Inland Valley Development Agency 

property are described in the CMP and 

include (1) subspecies monitoring every 

2 to 3 years following the Serviceapproved protocol, (2) vegetation 

surveys and adaptive control of invasive 

weedy plants, (3) trash removal, and (4) 

installation of protective signage and 

maintenance of barriers to reduce and 

prevent trespassing (U.S. Air Force 

2002, pp. 5–11). In accordance with the 

CMP, the SBIA Authority provides us 

with annual reports regarding the status 

of the CMP and OSMA (documents on 

file at the Carlsbad Fish and Wildlife 

Office). The SBIA Authority routinely 

removes exotic or weedy plant species 

within the CMAs, controls coyote access 

to fenced portions of CMA–1 and the 

OSMA, which reduces predation on the 

San Bernardino kangaroo rat in these 

areas, removes all dumped trash as soon 

as possible in accordance with the CMP 

and FAA guidelines, and promptly 

addresses any trespass issues as needed 

(e.g., fence and sign repairs). Human 

activities incompatible with the purpose 

of the CMAs are restricted (U.S. Air 

Force 2002, pp. 5–12). These 

management actions and the eventual 

placement of a conservation easement 

on the CMA parcels are anticipated to 

ensure that habitat containing the PCEs 

for the San Bernardino kangaroo rat is 

conserved within the CMAs and the 

OSMA through the protection and 

management of alluvial washes and 

upland habitat (PCEs 1, 2, and 3) 

required by the subspecies. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified the 

following primary threats to the San 

Bernardino kangaroo rat: habitat loss, 

destruction, degradation, and 

fragmentation due to sand and gravel 

mining operations; flood control 

projects; and urban development. As 

described above, the Former Norton Air 

Force Base CMP provides enhancement 

of the habitat by removing or reducing 

threats to this subspecies and the PCEs. 

The CMP preserves habitat that supports 

identified core populations of this 

subspecies and therefore provides for 

recovery. Based on the reasoning 

provided below, we excluded from Unit 

1 the approximately 267 ac (108 ha) of 

non-Federal lands within the Former 

Norton Air Force Base CMP area from 

the final revised critical habitat 

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

Act. 

Benefits of Inclusion—Former Norton 

Air Force Base Conservation 

Management Plan (CMP) 

The inclusion of approximately 267 

ac (108 ha) of non-Federal lands within 

CMA–1 and CMA–2 (of the Former 

Norton Air Force Base) in the revised 

critical habitat designation could be 

beneficial because it identifies lands to 

be managed for the conservation of the 

San Bernardino kangaroo rat. The 

process of proposing and finalizing the 

revised critical habitat rule provided the 

Service with the opportunity to evaluate 

and refine the features or PCEs essential 

to the conservation of the subspecies 

within the geographical area occupied 

by the San Bernardino kangaroo rat at 

the time of listing, as well as to evaluate 

whether there are other areas essential 

for the conservation of the subspecies. 

The designation process included peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

implemented in the approximately 267 

ac (108 ha) of lands within CMA–1 and 

CMA–2. The process of developing the 

CMP has involved several partners 

including (but not limited to) the U.S. 

Air Force, SBIA Authority, Inland 

Valley Development Agency, and the 

Service. 

The educational benefits of critical 

habitat designation derived through 

informing our partners and other 

members of the public of areas 

important for the long-term 

conservation of the San Bernardino 

kangaroo rat have already been and 

continue to be achieved through: (1) 

Development and implementation of the 

CMP; (2) the original designation 

process in 2002; and (3) publication of 

the proposed revisions to critical habitat 

in 2008, notices of public comment 

periods, and the public hearings. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. All 

of the approximately 267 ac (108 ha) of 

CMA–1 and CMA–2 lands in Unit 1 that 

are being excluded are on private 

property, with the potential Federal 

nexus for the San Bernardino kangaroo 

rat as a result of actions by the ACOE 

associated with Santa Ana River in the 

area or actions by the Federal Aviation 

Administration. Therefore, including 

this area would provide some regulatory 

benefits under section 7(a) of the Act. 

However, the Former Norton Air 

Force Base CMP addresses conservation 

issues from a coordinated, integrated 

perspective rather than a piecemeal 

project-by-project approach that could 

result in this area absent this plan, and 

will achieve more San Bernardino 

kangaroo rat conservation than would 

be achieved through such multiple siteby-site, project-by-project, section 7 

consultations involving consideration of 

critical habitat. The permanent 

conservation of these lands (i.e., 

conservation easement) is currently in 

progress. Furthermore, the CMP 

includes proactive monitoring and 

management of conserved lands (as 


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previously described), thereby reducing 

known threats to the San Bernardino 

kangaroo rat and its habitat. These 

measures provide assurance that the 

features essential to the conservation of 

the San Bernardino kangaroo rat within 

the CMAs will be protected and 

managed to conserve this subspecies. In 

light of the progress made to establish 

conservation easements on these lands 

and the potential piecemeal project-byproject approach for future section 7 

consultations that may occur on these 

lands, we conclude that the potential 

regulatory benefit of designating this 

area as critical habitat is minimal. The 

CMP provides as much or more benefit 

than a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Benefits of Exclusion—Former Norton 

Air Force Base Conservation 

Management Plan (CMP) 

The exclusion of the Former Norton 

Air Force Base CMP lands from critical 

habitat will help preserve and foster the 

partnerships that we developed with the 

Inland Valley Development Agency and 

SBIA Authority, and aid in encouraging 

other landowners to participate in 

conservation planning. Excluding the 

existing CMP lands demonstrates our 

good faith effort to work productively 

with non-Federal entities, which should 

encourage initiation and completion of 

conservation plans. As discussed above, 

many landowners and local 

jurisdictions perceive critical habitat 

being designated on lands covered by 

existing conservation plans as an unfair 

and unnecessary regulatory burden 

given the expense and time involved in 

developing and implementing 

conservation plans such as the CMP. 

The exclusion of this area signals to 

other private landowners that if they 

take steps to put their lands into 

conservation, they may avoid an 

additional layer of regulation, which, as 

we described above in the 

‘‘Conservation Partnerships on NonFederal Lands’’ section, sometimes acts 

as a disincentive for private landowners. 

Therefore, designation of lands covered 

by the CMP participants may discourage 

other landowners from seeking or 

completing similar conservation efforts. 

We believe that fostering these types of 

partnerships with non-Federal 

landowners are critical for the 

conservation of the San Bernardino 

kangaroo rat. 

The Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Former Norton 

Air Force Base Conservation 

Management Plan (CMP) 

As discussed in the ‘‘Benefits of 

Inclusion’’ section, we believe that the 

regulatory benefit of designating critical 

habitat on private lands covered by the 

Former Norton Air Force Base CMP 

would be low. The CMP addresses 

conservation issues from a coordinated, 

integrated perspective rather than a 

piecemeal project-by-project approach 

and will achieve more San Bernardino 

kangaroo rat conservation than would 

be achieved through multiple site-bysite, project-by-project, section 7 

consultations involving consideration of 

critical habitat. Furthermore, the CMP 

provides for the proactive monitoring 

and management of conserved lands (as 

previously described), reducing known 

threats to the San Bernardino kangaroo 

rat and its habitat. 

Conservation and management of San 

Bernardino kangaroo rat habitat is 

essential to the survival and recovery of 

this subspecies. Such conservation 

needs are typically not addressed 

through the application of the statutory 

prohibition on destruction or adverse 

modification of critical habitat. The 

CMP provides as much or more benefit 

than a consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Furthermore, educational benefits that 

may be derived from a critical habitat 

designation are minimal and largely 

redundant to the educational benefits 

achieved through significant State and 

local government input during the 

development of this management plan. 

We developed a close partnership 

with the CMP participants through the 

development of this management plan 

that incorporates appropriate 

protections and management of this 

subspecies’ essential physical and 

biological features. Those protections 

are consistent with the mandates under 

section 7 of the Act to avoid destruction 

or adverse modification of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. 

Designation of critical habitat alone 

does not achieve recovery or require 

management of those lands identified in 

the critical habitat rule. We believe the 

recovery benefits of excluding the 

former Norton Air Force Base 

conservation lands and implementing 

the CMP outweigh the recovery benefits 

of retaining these lands as critical 

habitat. Furthermore, the benefits to 

recovery of inclusion primarily have 

already been met through the 

identification of those areas most 

important to the subspecies. The 

minimal educational and potential 

regulatory benefits of including the 

Former Norton Air Force Base lands in 

critical habitat are small when 

compared to the impact such a 

designation could have on our current 

and future partnerships. By excluding 

these lands from designation, we are 

eliminating a largely redundant layer of 

regulatory review for a limited set of 

projects on non-Federal lands that are 

addressed by the management plan, and 

we are helping to preserve our ongoing 

partnership with the CMP participants 

and to encourage new partnerships with 

other landowners and jurisdictions. 

These partnerships are critical for the 

conservation of the San Bernardino 

kangaroo rat. Designating critical habitat 

on non-Federal lands within areas 

covered by the CMP area could have a 

detrimental effect to our partnership 

with the plan participants and could be 

a significant disincentive to the 

establishment of future partnerships and 

management plans with other partners. 

We reviewed and evaluated the 

exclusion of approximately 267 ac (108 

ha) of non-Federal lands in Unit 1 from 

the designation of final revised critical 

habitat for the San Bernardino kangaroo 

rat and determined that the benefits of 

excluding these lands outweigh the 

benefits of including them. As discussed 

above, the CMP will provide for 

significant preservation and 

management of the physical and 

biological features essential to the 

conservation of the San Bernardino 

kangaroo rat and will help reach the 

recovery goals for this subspecies. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Former Norton Air 

Force Base Conservation Management 

Plan (CMP) 

We determined that the exclusion of 

the non-Federal lands within the area 

covered by the CMP from the final 

revised designation of critical habitat for 

the San Bernardino kangaroo rat will 

not result in the extinction of the 

subspecies. The CMP provides 

protection and management, in 

perpetuity of lands within Unit 1, 

including the physical and biological 

features essential to the conservation of 

the San Bernardino kangaroo rat. 

Additionally, the jeopardy standard of 

section 7 of the Act and routine 

implementation of conservation 

measures through the section 7 process 

provide assurances that the subspecies 

will not go extinct as a result of this 

exclusion. 


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Cajon Creek Habitat Conservation 

Management Area, Habitat 

Enhancement and Management Plan 

(Cajon Creek HCMA HEMP) 

The Cajon Creek HCMA, managed by 

Vulcan Materials Co. (formerly CalMat 

Co.), Western Division, was created in 

1996 to offset approximately 2,270 ac 

(919 ha) of sand and gravel mining 

proposed within and adjacent to Cajon 

Creek. According to the HEMP for the 

HCMA and the associated Memorandum 

of Understanding and Implementation 

Agreement for the Cajon Creek Habitat 

Management Area (MOU), the HCMA 

includes approximately 1,378 ac (558 

ha) of lands in Unit 2, which are 

managed to protect or restore alluvial 

scrub habitat within the 100-year 

floodplain to help conserve populations 

of 24 species associated with alluvial 

fan scrub, including the San Bernardino 

kangaroo rat. Pioneer, intermediate, and 

mature phase alluvial scrub habitats can 

be found in the Cajon Creek HCMA, 

along with all three of the PCEs required 

by the San Bernardino kangaroo rat (M. 

Blane and Associates 1996, p. 11). 

Recent surveys of the HCMA conducted 

by Vulcan Materials Co. have 

established that the original survey data 

was inaccurate and the actual size of the 

HCMA is 1,265 ac (512 ha), not 1,378 ac 

(558 ha), made up of 698 ac (282 ha) of 

conservation lands and a 567 ac (229 ha) 

conservation bank. 

Of the HCMA lands, 698 ac (282 ha) 

were set aside to offset impacts from the 

proposed mining to alluvial fan sage 

scrub habitat and associated listed 

species including the San Bernardino 

kangaroo rat (Service 1998b, p. 2), and 

the 567 ac (229 ha) Cajon Creek 

Conservation Bank was established. 

These lands will be conserved and 

managed in perpetuity for alluvial fan 

scrub habitat and associated listed 

species (including the San Bernardino 

kangaroo rat) pursuant to the HEMP 

completed in July 1996, and the 

associated MOU signed on October 21, 

1996 (Service 1998b, p. 2). The lands set 

aside to offset mining impacts were 

placed under a permanent conservation 

easement. The approximately 567 ac 

(229 ha) Cajon Creek Conservation Bank 

was placed under a 10-year 

conservation easement on February 16, 

1998. The original intent of the Service, 

ACOE, and Vulcan Materials Co. was to 

place those lands within the bank under 

permanent conservation easement once 

all credits had been sold. The MOU 

addressing the permanent conservation 

of the Cajon Creek Conservation Bank 

and the conservation easement were 

recently extended by Vulcan Materials 

Co. until 2025 (Vulcan Materials 

Company 2006, p. 1). More than half of 

the total credits available within the 

Cajon Creek Conservation Bank have 

been sold (M. Blane and Associates 

2006, p. 5). Those credits not purchased 

by the end of the term will be available 

for purchase by the resource agencies 

(i.e., Service and California Department 

of Fish and Game). 

Habitat protection and enhancement 

measures are explained in the HEMP 

(M. Blane and Associates 1996, p. 21). 

Habitat protection measures are used to 

minimize unauthorized human 

intrusion and impacts associated with 

such intrusion (M. Blane and Associates 

1996, p. 21). More specifically, 

protection measures involve restricted 

access to the HCMA to minimize offroad vehicle use, target shooting, trash 

dumping, and other activities that result 

in degradation of natural areas (M. 

Blane and Associates 1996, p. 25). 

Restrictive barriers and signage are 

placed along borders and near access 

points. Removal of unnecessary roads 

and subsequent revegetation of those 

roads further discourage unauthorized 

access (M. Blane and Associates 1996, p. 

28). Furthermore, trash existing on 

HCMA lands and adjacent lands within 

San Bernardino County Flood Control 

property is removed as stated in the 

HEMP (M. Blane and Associates 1996, 

p. 28). Habitat enhancement measures 

are intended to restore the biological 

integrity of degraded alluvial scrub 

habitat and associated plant and animal 

species (including the San Bernardino 

kangaroo rat) within the HCMA and to 

protect it from further degradation (M. 

Blane and Associates 1996, p. 21). 

Specifically, habitat enhancement 

includes weed control involving 

removal of exotic plants on HCMA 

lands and adjacent lands and alluvial 

scrub revegetation activities as 

described in the HEMP (M. Blane and 

Associates 1996, p. 22). The above 

protection and enhancement measures 

ensure that alluvial fans, washes, and 

associated upland habitat (PCEs 1, 2, 

and 3) required by this subspecies are 

conserved. 

The Cajon Creek HCMA has been and 

continues to be managed in accordance 

with the HEMP and MOU by Vulcan 

Materials Company, which provides us 

with an annual report of management 

activities within the HCMA. Plan 

implementation has resulted in 

revegetation of previously mined areas, 

trash removal and overall decrease in 

trash dumping, placement of signage 

and barriers in areas vulnerable to 

unauthorized access, and successful 

invasive weed eradication (M. Blane 

and Associates 2006, p. 12). The 

continued implementation of the Cajon 

Creek HCMA HEMP will ensure the 

long-term conservation of habitat for the 

San Bernardino kangaroo rat. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified the 

following primary threats to the San 

Bernardino kangaroo rat: habitat loss, 

destruction, degradation, and 

fragmentation due to sand and gravel 

mining operations; flood control 

projects; and urban development. As 

described above, the Cajon Creek 

Habitat Conservation Management Area 

HEMP provides enhancement of the 

habitat by removing or reducing threats 

to this subspecies and the PCEs. The 

HEMP preserves habitat that supports 

identified core populations of this 

subspecies and therefore provides for 

recovery. Based on the reasoning 

provided below, we excluded from Unit 

2 the approximately 1,265 ac (512 ha) of 

non-Federal lands within the Cajon 

Creek HCMA from the San Bernardino 

kangaroo rat final revised critical habitat 

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

Act. 

Benefits of Inclusion—Cajon Creek 

HCMA HEMP 

The inclusion of approximately 1,265 

ac (512 ha) of non-Federal lands within 

the Cajon Creek HCMA in the revised 

critical habitat designation could be 

beneficial because it identifies lands to 

be managed for the conservation of the 

San Bernardino kangaroo rat. The 

process of proposing and finalizing the 

revised critical habitat rule provided the 

Service with the opportunity to evaluate 

and refine the features or PCEs essential 

to conservation of the subspecies within 

the geographical area occupied by the 

San Bernardino kangaroo rat at the time 

of listing, as well as to evaluate whether 

there are other areas essential for the 

conservation of the subspecies. The 

designation process included peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

implemented in the approximately 

1,378 ac (558 ha) of lands within the 

Cajon Creek HCMA and as a result of 

the development of the conservation 

easement and the involvement of the 

public and local government 

representatives in the day-to-day 

operation of the bank. The process of 


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developing the HEMP has involved 

several partners including (but not 

limited to) CalMat Co., California 

Department of Fish and Game, ACOE, 

and the Service. 

The educational benefits of critical 

habitat designation derived through 

informing our partners and other 

members of the public of areas 

important for the long-term 

conservation of the San Bernardino 

kangaroo rat have already been and 

continue to be achieved through: (1) 

Development and implementation of the 

HEMP; (2) the original designation 

process in 2002; and (3) publication of 

the proposed revisions to critical habitat 

in 2008, notices of public comment 

periods, and the public hearings. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. All 

of the approximately 1,265 ac (512 ha) 

of HCMA lands in Unit 2 that are being 

excluded are on private property, with 

the potential Federal nexus for the San 

Bernardino kangaroo rat as a result of 

actions by ACOE. Therefore, including 

this area would provide some regulatory 

benefits under section 7(a) of the Act. 

However, the Cajon Creek HCMA 

HEMP and associated MOU provides for 

the conservation and management of the 

identified lands. The permanent 

conservation of these lands (i.e., 

conservation easement) is currently in 

progress. The HEMP addresses 

conservation issues from a coordinated, 

integrated perspective rather than a 

piecemeal project-by-project approach 

that could result in this area absent this 

plan, and will achieve more San 

Bernardino kangaroo rat conservation 

than would be achieved through such 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Furthermore, the HEMP includes 

proactive monitoring and management 

of conserved lands (as previously 

described), thereby reducing known 

threats to the San Bernardino kangaroo 

rat and its habitat. These measures 

provide assurance that the features 

essential to the conservation of the San 

Bernardino kangaroo rat within the 

Cajon Creek HCMA will be protected 

and managed to conserve this 

subspecies. In light of the progress made 

to establish conservation easements on 

these lands and the potential piecemeal 

project-by-project approach for future 

section 7 consultations that may occur 

on these lands, we conclude that the 

potential regulatory benefit of 

designating this area as critical habitat 

is minimal. The HEMP provides as 

much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Benefits of Exclusion—Cajon Creek 

HCMA HEMP 

The Cajon Creek HCMA HEMP 

provides for conservation bank lands in 

a coordinated, integrated manner. The 

protection and active management of 

San Bernardino kangaroo rat and its 

essential habitat features on HCMA 

lands conserved the subspecies at this 

site and directly contributes to the 

survival and recovery of this species. 

The exclusion of the Cajon Creek 

HCMA lands from critical habitat will 

help preserve and foster the 

partnerships that we developed with 

Vulcan Materials Co., and the California 

Department of Fish and Game, and aid 

in encouraging other landowners to 

participate in conservation planning. 

Excluding the existing Cajon Creek 

HCMA lands demonstrates our good 

faith effort to work productively with 

non-Federal entities, which should 

encourage initiation and completion of 

conservation plans. As discussed above, 

many landowners and local 

jurisdictions perceive critical habitat 

being designated on lands covered by 

existing conservation plans as an unfair 

and unnecessary regulatory burden 

given the expense and time involved in 

developing and implementing 

conservation plans such as the Cajon 

Creek HCMA HEMP. The exclusion of 

this area signals to other private 

landowners that if they take steps to put 

their lands into conservation, they may 

avoid an additional layer of regulation, 

which, as we described above in the 

‘‘Conservation Partnerships on NonFederal Lands’’ section, sometimes acts 

as a disincentive for private landowners. 

Therefore, designation of lands covered 

by the HEMP may discourage other 

landowners from seeking or completing 

similar conservation efforts. We believe 

that fostering these types of partnerships 

with non-Federal landowners are 

critical for the conservation of the San 

Bernardino kangaroo rat. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Cajon Creek 

HCMA HEMP 

As discussed in the ‘‘Benefits of 

Inclusion’’ section, we believe the 

regulatory benefit of designating critical 

habitat on private lands covered by the 

Cajon Creek HCMA HEMP would be 

low. The Cajon Creek HCMA HEMP 

addresses conservation issues from a 

coordinated, integrated perspective 

rather than a piecemeal project-byproject approach and will achieve more 

San Bernardino kangaroo rat 

conservation than would be achieved 

through multiple site-by-site, project-byproject, section 7 consultations 

involving consideration of critical 

habitat. Furthermore, the Cajon Creek 

HCMA HEMP provides for the proactive 

monitoring and management of 

conserved lands (as previously 

described), reducing known threats to 

the San Bernardino kangaroo rat or its 

habitat. 

Conservation and management of San 

Bernardino kangaroo rat habitat is 

essential to the survival and recovery of 

this subspecies. Such conservation 

needs are typically not addressed 

through the application of the statutory 

prohibition on destruction or adverse 

modification of critical habitat. The 

Cajon Creek HCMA HEMP provides as 

much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

Furthermore, educational benefits that 

may be derived from a critical habitat 

designation are minimal and largely 

redundant to the educational benefits 

achieved through significant State and 

local government input during the 

development of this management plan. 

We developed a close partnership 

with the Cajon Creek HCMA HEMP 

participants through the development of 

this management plan that incorporates 

appropriate protections and 

management of this subspecies’ 

essential physical and biological 

features. Those protections are 

consistent with the mandates under 

section 7 of the Act to avoid destruction 

or adverse modification of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. 

Designation of critical habitat alone 

does not achieve recovery or require 

management of those lands identified in 

the critical habitat rule. We believe the 

recovery benefits of excluding the Cajon 

Creek HCMA lands and implementing 

the HEMP outweigh the recovery 

benefits of retaining these lands as 

critical habitat. Furthermore, the 

benefits to recovery of inclusion 

primarily have already been met 

through the identification of those areas 

most important to the subspecies. The 

minimal educational and potential 

regulatory benefits of including the 

Cajon Creek HCMA lands in critical 

habitat are small when compared to the 

impact such a designation could have 


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on our current and future partnerships. 

By excluding these lands from 

designation, we are eliminating a largely 

redundant layer of regulatory review for 

a limited set of projects on non-Federal 

lands that are addressed by the 

management plan and we are helping to 

preserve our ongoing partnership with 

the Cajon Creek HCMA HEMP 

participants and to encourage new 

partnerships with other landowners and 

jurisdictions. Those partnerships are 

critical for the conservation of the San 

Bernardino kangaroo rat. Designating 

critical habitat on non-Federal lands 

within areas covered by the Cajon Creek 

HCMA HEMP could have a detrimental 

effect to our partnership with the plan 

participants and could be a significant 

disincentive to the establishment of 

future partnerships and management 

plans with other partners. 

We reviewed and evaluated the 

exclusion of approximately 1,265 ac 

(512 ha) of non-Federal lands in Unit 2 

from the designation of final revised 

critical habitat for the San Bernardino 

kangaroo rat and determined that the 

benefits of excluding these lands 

outweigh the benefits of including them. 

As discussed above, the Cajon Creek 

HCMA HEMP will provide for 

significant preservation and 

management of the physical and 

biological features essential to the 

conservation of the San Bernardino 

kangaroo rat and will help reach the 

recovery goals for this subspecies. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Cajon Creek HCMA 

HEMP 

We determined that the exclusion of 

non-Federal lands within the area 

covered by the Cajon Creek HCMA 

HEMP from the final revised 

designation of critical habitat for the 

San Bernardino kangaroo rat will not 

result in the extinction of the 

subspecies. The Cajon Creek HCMA 

HEMP provides protection and 

management, in perpetuity of lands 

within Unit 2, including the physical 

and biological features essential to the 

conservation of the San Bernardino 

kangaroo rat. Additionally, the jeopardy 

standard of section 7 of the Act and 

routine implementation of conservation 

measures through the section 7 process 

provide assurances that the subspecies 

will not go extinct as a result of this 

exclusion. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

The Western Riverside County 

MSHCP is a large-scale, multijurisdictional HCP encompassing about 

1.26 million ac (510,000 ha) in western 

Riverside County (Units 3 and 5). The 

MSHCP addresses 146 listed and 

unlisted ‘‘covered species,’’ including 

the San Bernardino kangaroo rat. 

Participants in the MSHCP include 14 

cities: The County of Riverside, 

including the Riverside County Flood 

Control and Water Conservation Agency 

(County Flood Control), Riverside 

County Transportation Commission, 

Riverside County Parks and Open Space 

District, and Riverside County Waste 

Department; California Department of 

Parks and Recreation; and the California 

Department of Transportation. The 

Western Riverside County MSHCP was 

designed to establish a multi-species 

conservation program that minimizes 

and mitigates the expected loss of 

habitat and the incidental take of 

covered species. On June 22, 2004, the 

Service issued a single incidental take 

permit (TE–088609–0) under section 

10(a)(1)(B) of the Act to 22 permittees 

under the MSHCP for a period of 75 

years. 

The Western Riverside County 

MSHCP will establish approximately 

153,000 ac (61,917 ha) of new 

conservation lands (Additional Reserve 

Lands) to complement the approximate 

347,000 ac (140,426 ha) of existing 

natural and open space areas designated 

by the MSHCP as Public/Quasi-Public 

(PQP) lands. These PQP lands include 

those under Federal ownership, 

primarily managed by the USFS and 

BLM, and also permittee-owned openspace areas (e.g., State parks, County 

Flood Control, and county park lands). 

Federally owned PQP lands are 

designated as critical habitat herein. 

Collectively, the Additional Reserve 

Lands and PQP lands form the overall 

Western Riverside County MSHCP 

Conservation Area. The precise 

configuration of the 153,000 ac (61,916 

ha) of Additional Reserve Lands is not 

mapped or precisely identified in the 

MSHCP, but rather is based on textual 

descriptions of a Conceptual Reserve 

Design within the bounds of a 310,000 

ac (125,453 ha) ‘‘Criteria Area’’ that is 

interpreted as implementation of the 

MSHCP proceeds. 

Specific conservation objectives in the 

Western Riverside County MSHCP for 

the San Bernardino kangaroo rat include 

providing 4,400 ac (1,781 ha) of 

occupied or suitable habitat within the 

historical floodplains of the San Jacinto 

River and Bautista Creek and their 

tributaries in the MSHCP Conservation 

Area. This acreage goal can be attained 

through private lands within the Criteria 

Area that are targeted for inclusion 

within the MSHCP Conservation Area as 

potential Additional Reserve Lands 

and/or through coordinated 

management of PQP lands. 

Additionally, the MSHCP requires 

surveys for the San Bernardino kangaroo 

rat as part of the project review process 

for public and private projects where 

suitable habitat is present within a 

defined mammal species survey area 

(see Mammal Species Survey Area Map, 

Figure 6–5 of the MSHCP, Volume I). 

For locations with positive survey 

results, 90 percent of those portions of 

the property that provide long-term 

conservation value for the subspecies 

will be avoided until it is demonstrated 

that the conservation objectives for the 

subspecies are met (Additional Survey 

Needs and Procedures; MSHCP Volume 

1, section 6.3.2). 

The survey requirements, avoidance 

and minimization measures, and 

management for the San Bernardino 

kangaroo rat (and its PCEs) provided for 

in the Western Riverside County 

MSHCP exceed any conservation value 

provided as a result of regulatory 

protections that have been or may be 

afforded through critical habitat 

designation. Based on the reasoning 

provided below, we excluded from Unit 

3 and Unit 5 the approximately 595 ac 

(241 ha) of private lands and permitteeowned PQP lands within the MSHCP 

Plan Area from the revised critical 

habitat designation under section 4(b)(2) 

of the Act. The areas excluded are in 

separate parcels in the San Jacinto River 

wash distributed between the Blackburn 

Road/Lake Hemet Main Canal area, 

downstream to the East Main Street 

Bridge, and in the Bautista Creek area 

upstream of the concrete-lined channel. 

Lands within these excluded areas are 

owned by or fall within the jurisdiction 

of MSHCP permittees. Projects in these 

areas conducted or approved by MSHCP 

permittees are subject to the 

conservation requirements of the 

MSHCP, including the Additional 

Survey Needs and Procedures policy. 

Lands within the MSHCP plan area 

owned by Eastern Municipal Water 

District and Lake Hemet Municipal 

Water District are not subject to the 

conservation requirements of the 

MSHCP through any discretionary 

authority of the permittees. Therefore, 

506 ac (205 ha) of lands within Unit 3 

and Unit 5 owned by these two water 

districts are not excluded from the final 

revised designation under the Western 

Riverside County MSHCP. 

The 1998 final listing rule for the San 

Bernardino kangaroo rat identified the 

following primary threats to the San 

Bernardino kangaroo rat: Habitat loss, 

destruction, degradation, and 

fragmentation due to sand and gravel 

mining operations; flood control 


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projects; and urban development. As 

described above, the Western Riverside 

County MSHCP provides enhancement 

of the habitat by removing or reducing 

threats to this subspecies and the PCEs. 

The MSHCP preserves habitat that 

supports identified core populations of 

this subspecies and therefore provides 

for recovery. 

Benefits of Inclusion—Western Riverside 

County MSHCP 

The inclusion of approximately 595 

ac (241 ha) of permittee-owned or 

controlled lands within the Western 

Riverside County MSHCP could be 

beneficial because it identifies lands 

that require management for 

conservation of the San Bernardino 

kangaroo rat. The process of proposing 

and finalizing the revised critical habitat 

rule provided the Service with the 

opportunity to evaluate and refine the 

features or PCEs essential to the 

conservation of the subspecies within 

the geographical area occupied by the 

San Bernardino kangaroo rat at the time 

of listing, as well as to evaluate whether 

there are other areas essential for the 

conservation of the subspecies. The 

designation process included peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of 

designation are small and largely 

redundant to those derived through 

conservation efforts currently being 

planned and implemented in the 

approximately 595 ac (241 ha) of 

permittee-owned or controlled lands 

within the Western Riverside MSHCP. 

As described above, the process of 

developing the Western Riverside 

County MSHCP has involved several 

partners including (but not limited to) 

the participating jurisdictions, 

California Department of Fish and 

Game, and Federal agencies. The 

educational benefits of critical habitat 

designation derived through informing 

Western Riverside County MSHCP 

partners and other members of the 

public of areas important for the longterm conservation of this subspecies 

have already been and continue to be 

achieved through: (1) Development of 

the HCP; (2) the original designation 

process in 2002; and (3) publication of 

the proposed revisions to critical habitat 

in 2008, notices of public comment 

periods, and the public hearings. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed above, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. 

There is the potential for future 

activities within the lands being 

excluded having a Federal nexus for the 

San Bernardino kangaroo rat as a result 

of actions by ACOE and the Federal 

Highways Administration. Therefore, 

including this area may provide some 

regulatory benefits under section 7(a) of 

the Act. 

However, the Western Riverside 

County MSHCP addresses conservation 

issues from a coordinated, integrated 

perspective rather than a piecemeal, 

project-by-project approach (as would 

occur on these lands under sections 7 

and 10 of the Act absent this regional 

plan) and will achieve more San 

Bernardino kangaroo rat conservation in 

the Western Riverside County MSHCP 

plan area than we would through 

section 7 consultations involving 

consideration of critical habitat. The 

PCEs required by the San Bernardino 

kangaroo rat will benefit by the 

conservation measures outlined in the 

Western Riverside County MSHCP. In 

summary, these conservation measures 

include: Preservation of high quality 

habitat; monitoring and management of 

preserve lands; restoration and 

enhancement of habitat; minimization 

of project impacts; education of the 

public and state and local governments; 

and conservation of partnerships. Such 

measures will remove or reduce known 

threats to the San Bernardino kangaroo 

rat and its PCEs in Unit 3 and Unit 5. 

The Western Riverside County MSHCP 

will ensure conservation and 

management actions take place that are 

not required by critical habitat 

designation (see ‘‘Benefits of 

Designating Critical Habitat’’ section 

above). For example, critical habitat 

designation does not ensure: Habitat 

enhancement and restoration; functional 

connections to adjoining habitat; or 

monitoring of the San Bernardino 

kangaroo rat (see discussion above). 

In light of the preferable regional scale 

of conservation planning utilized in the 

development of the Western Riverside 

County MSHCP and the conservation 

that has and will occur under the 

Western Riverside County MSHCP, we 

conclude that the potential regulatory 

benefit of designating these areas in 

Unit 3 and Unit 5 as critical habitat is 

minimal. 

Benefits of Exclusion—Western 

Riverside County MSHCP 

Regional and subregional HCPs foster 

an ecosystem-based approach to habitat 

conservation planning, and once 

developed, conservation issues are 

addressed through a coordinated 

approach. However, these large and 

often costly regional plans are voluntary 

for the local jurisdiction that pursue this 

approach, in the sense that they could 

require landowners (e.g., homeowners, 

developers) to consult with the Service 

individually for a section 10 permit. As 

a result, the local jurisdiction would 

incur no costs associated with the 

landowner’s need for a section 10 

permit, requiring the landowner to 

obtain this permit prior to issuance of a 

building permit. However, this 

approach would result in 

uncoordinated, ‘‘patchy’’ conservation 

that would likely not further the 

recovery of federally listed species. 

Rather, by voluntarily developing these 

regional plans (versus individual 

landowner HCPs), the coordinated 

landscape-scale conservation results in 

preservation of interconnected linkage 

areas and populations that support 

recovery of listed species. We recognize 

that once an HCP is permitted, 

implementation of the conservation 

measures is not voluntary in order for 

permittees to receive incidental take 

coverage. However, the benefits of 

excluding lands under the scenario 

described above are: (1) Retaining and 

fostering the existing partnership and 

working relationship with all 

stakeholders; and (2) encouraging future 

regional HCP development or 

development of other species/habitat 

conservation plans. Additionally, 

exclusion of a HCP (such as the Western 

Riverside County MSHCP) demonstrates 

our good faith effort and working 

relationships, which should encourage 

initiation and completion of other HCPs. 

We developed close partnerships with 

all participating entities through the 

development of the Western Riverside 

County MSHCP, which incorporates 

appropriate protections and 

management for the San Bernardino 

kangaroo rat, its habitat, and the features 

essential to the conservation of this 

subspecies. By excluding 595 ac (241 

ha) of lands in Unit 3 and Unit 5 from 

designation, we are eliminating an 

essentially redundant layer of regulatory 

review for projects covered by the 

Western Riverside County MSHCP, 

helping to preserve our ongoing 

partnership with HCP participants, and 

encouraging new partnerships with 

other landowners and jurisdictions. 

These partnerships with HCP 


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participants are critical for the 

conservation of the San Bernardino 

kangaroo rat. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion—Western Riverside 

County MSHCP 

As discussed in the ‘‘Benefits of 

Inclusion’’ section above, we believe the 

regulatory benefit of designating critical 

habitat on private lands and permitteeowned PQP lands covered by the 

Western Riverside County MSHCP 

would be low. The Western Riverside 

County MSHCP addresses conservation 

issues from a coordinated, integrated 

perspective rather than a piecemeal 

project-by-project approach and will 

achieve more San Bernardino kangaroo 

rat conservation than we would achieve 

through multiple site-by-site, project-byproject, section 7 consultations 

involving consideration of critical 

habitat. 

Conservation and management of San 

Bernardino kangaroo rat habitat is 

essential to the survival and recovery of 

this subspecies. Such conservation 

needs are typically not addressed 

through the application of the statutory 

prohibition on destruction or adverse 

modification of critical habitat. The 

specific conservation actions, avoidance 

and minimization measures, and 

management for the San Bernardino 

kangaroo rat and its PCEs provided by 

the Western Riverside County MSHCP 

exceed any conservation value provided 

as a result of regulatory protections that 

may be afforded through a critical 

habitat designation. The Western 

Riverside County MSHCP provides as 

much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. The 

benefits for the conservation of the San 

Bernardino kangaroo rat that would 

occur as a result of designating a small 

amount of as critical habitat (e.g., 

protection afforded through the section 

7(a)(2) consultation process) are 

minimal compared to the overall 

conservation benefits for the subspecies 

that will be realized through the 

implementation of the Western 

Riverside County MSHCP. Furthermore, 

educational benefits that may be derived 

from a critical habitat designation are 

minimal and largely redundant to the 

educational benefits achieved through 

significant public, State, and local 

government input during the 

development of the Western Riverside 

County MSHCP. 

We developed close partnerships with 

the 22 MSHCP permittees through the 

development of this regional HCP that 

incorporates appropriate protections 

and management of this subspecies’ 

essential physical and biological 

features. Those protections are 

consistent with the mandates under 

section 7 of the Act to avoid destruction 

or adverse modification of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. 

Designation of critical habitat alone 

does not achieve recovery or require 

management of those lands identified in 

the critical habitat rule. We believe the 

conservation benefits for the San 

Bernardino kangaroo rat that would 

occur as a result of designating those 

595 ac (241 ha) in Unit 3 and Unit 5 as 

critical habitat (e.g., protection afforded 

through the section 7(a)(2) consultation 

process) is minimal compared to the 

overall conservation benefits for the 

subspecies that will be realized through 

the implementation of the Western 

Riverside County MSHCP. Furthermore, 

the benefits to recovery of inclusion 

primarily have already been met 

through the identification of those areas 

most important to the subspecies. By 

excluding these lands from designation, 

we are eliminating a largely redundant 

layer of regulatory review for a limited 

set of projects on non-Federal lands that 

are addressed by the MSHCP and we are 

helping to preserve our ongoing 

partnerships with the permittees and to 

encourage new partnerships with other 

landowners and jurisdictions. Those 

partnerships, and the landscape-level, 

multiple-species conservation planning 

efforts they promote, are critical for the 

conservation of the San Bernardino 

kangaroo rat. Designating critical habitat 

on non-Federal lands within the 

Western Riverside County MSHCP 

could have a detrimental effect to our 

partnerships with the 22 MSHCP 

permittees and could be a significant 

disincentive to the establishment of 

future partnerships and HCPs with other 

landowners. 

We reviewed and evaluated the 

exclusion of 595 ac (241 ha) of private 

and permittee-owned PQP lands within 

the Western Riverside County MSHCP 

plan area from the final revised critical 

habitat designation for the San 

Bernardino kangaroo rat and determined 

that the benefits of excluding these 

lands in Unit 3 and Unit 5 outweigh the 

benefits of including them. As discussed 

above, the MSHCP will provide for 

significant preservation and 

management of habitat for and features 

essential to the conservation of the San 

Bernardino kangaroo rat and will help 

reach the recovery goals for this 

subspecies. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Western Riverside 

County MSHCP 

In keeping with our analysis and 

conclusion detailed in our biological 

opinion for the Western Riverside 

County MSHCP (Service 2004, pp. 298– 

299), we have determined that the 

exclusion of 595 ac (241 ha) of private 

lands and permittee-owned PQP lands 

within the Western Riverside County 

MSHCP plan area from the final 

designation of critical habitat for the 

San Bernardino kangaroo rat will not 

result in the extinction of the 

subspecies. The MSHCP provides 

protection and management, in 

perpetuity, of lands that meet the 

definition of critical habitat, including 

PCEs, for the subspecies in Unit 3 and 

Unit 5. Additionally, the jeopardy 

standard of section 7 of the Act and 

routine implementation of conservation 

measures through the section 7 process 

provide assurances that the subspecies 

will not go extinct as a result of this 

exclusion. 

Application of Section 4(b)(2)—Other 

Relevant Impacts—Soboba Band of 

Luisen ̃o Indians Settlement Act 

Hemet/San Jacinto Integrated Recharge 

Recovery Project 

On July 31, 2008, the President signed 

the Soboba Band of Luisen ̃ o Indians 

Settlement Act (Pub. L. 110–297). As 

part of its obligations under the 

Settlement Agreement associated with 

this legislation, the Eastern Municipal 

Water District will implement an 

integrated water recharge and recovery 

program that includes the construction 

of recharge basins and well sites at the 

confluence of the San Jacinto River and 

Bautista Creek. This project is designed 

to provide water to the Soboba Band of 

Luisen ̃ o Indians in keeping with the 

Tribe’s water rights. The Service issued 

a biological opinion to the ACOE for 

this project on November 16, 2006 

(Service 2006, FWS–WRIV–4051.5). The 

ACOE reinitiated consultation for this 

project on January 29, 2008 (see Bautista 

Creek discussion under the ‘‘Summary 

of Changes From the 2007 Proposed 

Rule To Revise Critical Habitat’’ section 

of this rule for further information). The 

project will impact approximately 39 ac 

(16 ha) of land within the floodplain. 

Benefits of Inclusion—Hemet/San 

Jacinto Integrated Recharge Recovery 

Project 

The inclusion of 39 ac (16 ha) of 

Eastern Municipal Water District lands 

in this final revised critical habitat 

designation could be beneficial because 

it identifies lands that contain the 


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features essential to the conservation of 

the species. The process of proposing 

and finalizing the revised critical habitat 

rule provided the Service with the 

opportunity to evaluate and refine the 

features or PCEs essential to the 

conservation of the subspecies within 

the geographical area occupied by San 

Bernardino kangaroo rat at the time of 

listing, as well as to evaluate whether 

there are other areas essential for the 

conservation of the subspecies. The 

designation process included peer 

review and public comment on the 

identified features and areas. This 

process is valuable to land owners and 

managers in developing conservation 

management plans for identified areas, 

as well as any other occupied habitat or 

suitable habitat that may not have been 

included in the Service’s determination 

of essential habitat. 

The educational benefits of critical 

habitat designation derived through 

informing our partners and other 

members of the public of areas 

important for the long-term 

conservation of San Bernardino 

kangaroo rat have already been achieved 

through previously designating this area 

as critical habitat and through the 

section 7 consultation process on the 

proposed action (Service 2006, pp. 

1–41). 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of inclusion for 

critical habitat. As discussed previously, 

Federal agencies must consult with us 

on actions that may affect critical 

habitat and must avoid destroying or 

adversely modifying critical habitat. On 

these approximately 39 ac (16 ha) of 

Eastern Municipal Water District lands 

in Unit 3 that are being excluded, a 

Federal nexus exists for the San 

Bernardino kangaroo rat as a result of 

actions by the ACOE. Therefore, 

including this area would provide some 

regulatory benefits under section 7(a) of 

the Act. 

Benefits of Exclusion—Hemet/San 

Jacinto Integrated Recharge Recovery 

Project 

The Soboba Band of Luisen ̃o Indians 

Settlement Act and its associated 

Settlement Agreement represent a 

historic settlement of a decades-long 

water rights dispute under which the 

Tribe will receive an adequate and 

secure future water supply of 9,000 acre 

feet per year, $18 million from local 

water districts for economic 

development, $11 million from the 

Federal government for water 

development, and 128 ac (52 ha) of land 

near Diamond Valley for commercial 

development. In turn, the Tribe agreed 

to forebear some portion of their water 

rights for 50 years, which has a 

monetary value of more than $58 

million. Additionally, the Settlement 

Act provides local water districts and 

Tribal neighbors: 7,500 acre feet of new 

imported water per year until at least 

2035; $10 million in Federal funds to 

help recharge the aquifer with imported 

water; up to 100 acres (41 ha) of Soboba 

Band of Luisen ̃o Indians reservation 

land for endangered species habitat; use 

of up to 4,900 acre feet of Soboba Band 

of Luisen ̃ o Indians water for 50 years for 

basin restoration; and the promise of 

new jobs and economic stimulus from 

Soboba Band of Luisen ̃ o Indians 

commercial development. The 

partnerships developed during the 

negotiation of this settlement are unique 

and are viewed as a framework for 

resolution of other water rights disputes. 

Implementation of the Settlement 

Agreement is expected to provide for 

restoration of the groundwater basin. 

Excluding the 39 ac (16 ha) of lands in 

Unit 3 from the designation will remove 

any perception that the regulatory 

impact of the critical designation may 

impede successful implementation of 

this important agreement, and will help 

to preserve our ongoing partnership 

with this project’s participants and the 

signatories to the Settlement Agreement. 

Additionally, this exclusion will 

encourage new partnerships with other 

landowners, water districts, and other 

jurisdictions. We believe encouraging 

such partnerships are critical for the 

conservation of the San Bernardino 

kangaroo rat. 

Benefits of Exclusion Outweigh Benefits 

of Inclusion—Hemet/San Jacinto 

Integrated Recharge Recovery Project 

We reviewed and evaluated the 

benefits of inclusion and benefits of 

exclusion for the approximately 39 ac 

(16 ha) of non-Federal Eastern 

Municipal Water District lands in Unit 

3, and determined that the benefits of 

excluding these lands outweigh the 

benefits of including them as critical 

habitat. We acknowledge that the 

designation of critical habitat on these 

lands would likely provide a 

conservation benefit to the San 

Bernardino kangaroo rat through the 

section 7(a)(2) consultation process. 

However, as discussed above, the 

benefits of excluding the area covered 

by the Hemet/San Jacinto Integrated 

Recharge Recovery Project are high and 

outweigh any regulatory or other benefit 

of including these lands in critical 

habitat, as such exclusion will help to 

preserve and foster the partnerships and 

inter-governmental relationships that 

have been developed over many years to 

achieve sustainable water management 

and habitat restoration in the San 

Jacinto River Basin. By excluding these 

lands, we will remove any additional 

regulatory impact resulting from a 

critical habitat designation that may 

potentially interfere with 

implementation of the Settlement 

Agreement. In addition to restoration of 

the groundwater basin, implementation 

of the historic Settlement Agreement 

will restore the Soboba Band of Luisen ̃ o 

Indians’ water rights and allow the 

Tribe to manage their water resources 

for the betterment of the Tribe, which is 

expected to provide an economic 

stimulus to the Tribe and surrounding 

communities as well as providing for 

restoration of the groundwater basin. 

Exclusion Will Not Result in Extinction 

of the Subspecies—Hemet/San Jacinto 

Integrated Recharge Recovery Project 

We determined that the exclusion of 

the 39 ac (16 ha) of non-Federal lands 

within the area covered by the Hemet/ 

San Jacinto Integrated Recharge 

Recovery Project from the final revised 

designation of critical habitat for the 

San Bernardino kangaroo rat will not 

result in the extinction of the 

subspecies. The area is occupied by the 

San Bernardino kangaroo rat, and the 

protections afforded through section 9 

of the Act, the jeopardy standard of 

section 7 of the Act, and routine 

implementation of conservation 

measures through the section 7 process 

provide assurances that the subspecies 

will not go extinct as a result of this 

exclusion. 

Required Determinations 

Takings—Executive Order 12630 

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 critical habitat for the San 

Bernardino kangaroo rat in a takings 

implications assessment. Critical habitat 

designation does not affect landowner 

actions that do not require Federal 

funding or permits, nor does it preclude 

development of habitat conservation 

programs or issuance of incidental take 

permits to permit actions that do require 

Federal funding or permits to go 

forward. The takings implications 

assessment concludes that this final 

revised designation of critical habitat for 

the San Bernardino kangaroo rat does 

not pose significant takings 

implications. 


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Regulatory Planning and Review— 

Executive Order 12866 

The Office of Management and Budget 

(OMB) has determined that this rule is 

not significant under E.O. 12866. OMB 

bases its determination upon the 

following four criteria: 

(1) 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. 

(2) Whether the rule will create 

inconsistencies with other Federal 

agencies’ actions. 

(3) Whether the rule will materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. 

(4) Whether the rule raises novel legal 

or policy issues. 

Civil Justice Reform—Executive Order 

12988 

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 San Bernardino 

kangaroo rat. 

Federalism—Executive Order 13132 

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, these 

final critical habitat designations with 

appropriate State resource agencies in 

California. During the public comment 

periods, we contacted appropriate State 

and local agencies and jurisdictions, 

and invited them to comment on the 

proposed revised critical habitat 

designation for the San Bernardino 

kangaroo rat. In total, we responded to 

five letters received during these 

comment periods from local 

governments (see ‘‘Summary of 

Comments and Recommendations’’ 

section). None of the critical habitat 

designation for the San Bernardino 

kangaroo rat occurs on State land, and, 

therefore, will have little impact on 

State and local governments and their 

activities. The designations may have 

some benefit to these governments in 

that the areas that contain the features 

essential to the conservation of the 

species are more clearly defined, and 

the primary constituent elements of the 

habitat 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). 

Energy Supply, Distribution, or Use— 

Executive Order 13211 

On May 18, 2001, the President issued 

E.O. 13211 on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. This revision to critical 

habitat for the San Bernardino kangaroo 

rat is not considered a significant 

regulatory action under E.O. 12866. 

OMB has provided guidance for 

implementing this Order that outlines 

nine outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The economic 

analysis finds that none of these criteria 

are relevant to this analysis. Thus, based 

on information in the economic analysis 

(Appendix C), energy-related impacts 

associated with San Bernardino 

kangaroo rat conservation activities 

within the areas included in the final 

designation of critical habitat are not 

expected. As such, the final designation 

of critical habitat is not expected to 

significantly affect energy supplies, 

distribution, or use, and a Statement of 

Energy Effects is not required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act, the Service 

makes the following findings: 

(1) This rule would 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 

Medicaid; Aid to Families with 

Dependent Children 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 section 7 of the 

Act, the only regulatory effect is that 

Federal agencies must ensure that their 

actions do not destroy or adversely 

modify critical habitat. Non-Federal 

entities that receive Federal funding, 

assistance, permits, or otherwise require 

approval or authorization from a Federal 

agency for an action, may be indirectly 

impacted by the designation of critical 

habitat. However, the legally binding 

duty to avoid destruction or adverse 

modification of critical habitat rests 

squarely on the Federal agency. 

Furthermore, to the extent that nonFederal entities are indirectly impacted 

because they receive Federal assistance 

or participate in a voluntary Federal aid 

program, the Unfunded Mandates 

Reform Act would not apply, nor would 

critical habitat shift the costs of the large 

entitlement programs listed above on to 

State governments. 

(2) We do not believe that this rule 

would significantly or uniquely affect 

small governments because it would not 

produce a Federal mandate of $100 

million or greater in any year; that is, it 

is not a ‘‘significant regulatory action’’ 

under the Unfunded Mandates Reform 

Act. As discussed in the economic 

analysis, anticipated future impacts in 

areas designated as critical habitat will 

be borne by the Federal Government 

and San Bernardino County Flood 


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Control District (SBCFCD); in areas 

excluded from the final designation, the 

total anticipated future impacts are not 

attributable to the designation of critical 

habitat. By definition, Federal agencies 

are not considered small entities, 

although the activities they fund or 

permit may be proposed or carried out 

by small entities. The SBCFCD is also 

not considered to be a small entity 

because it services a population 

exceeding the criteria for a ‘‘small 

entity.’’ As such, a Small Government 

Agency Plan is not required. 

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

et seq.) 

Under the Regulatory Flexibility Act, 

as amended by the Small Business 

Regulatory Enforcement Fairness Act (5 

U.S.C. 802(2)), whenever an agency is 

required to publish a notice of 

rulemaking for any proposed or final 

rule, it must prepare and make available 

for public comment a regulatory 

flexibility analysis that describes the 

effect of the rule on small entities (i.e., 

small businesses, small organizations, 

and small government jurisdictions). 

However, no regulatory flexibility 

analysis is required if the head of an 

agency certifies the rule will not have a 

significant economic impact on a 

substantial number of small entities. 

The Small Business Regulatory 

Enforcement Fairness Act amended the 

Regulatory Flexibility Act to require 

Federal agencies to provide a 

certification 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 

San Bernardino kangaroo rat will not 

have a significant economic impact on 

a substantial number of small entities. 

The following discussion explains our 

rationale. 

According to the Small Business 

Administration, 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; and small businesses 

(13 CFR 121.201). Small businesses 

include manufacturing and mining 

concerns with fewer than 500 

employees, wholesale trade entities 

with fewer than 100 employees, retail 

and service businesses with less than $5 

million in annual sales, general and 

heavy construction businesses with less 

than $27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

considered the types of activities that 

might trigger regulatory impacts under 

this designation as well as types of 

project modifications that may result. In 

general, the term significant economic 

impact is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the revised 

designation of critical habitat for the 

San Bernardino kangaroo rat would 

affect a substantial number of small 

entities, we considered the number of 

small entities affected within particular 

types of economic activities, such as 

residential and commercial 

development. We considered each 

industry or category individually to 

determine if certification is appropriate. 

In estimating the numbers of small 

entities potentially affected, we also 

considered whether their activities have 

any Federal involvement; some kinds of 

activities are unlikely to have any 

Federal involvement and thus will not 

be affected by the designation of critical 

habitat. Designation of critical habitat 

only affects activities conducted, 

funded, permitted, or authorized by 

Federal agencies; non-Federal activities 

are not affected by the designation. 

In areas where the subspecies 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 San Bernardino kangaroo rat 

(see Section 7 Consultation section) or 

their critical habitat. Future 

consultations to avoid the destruction or 

adverse modification of critical habitat 

would be incorporated into the existing 

consultation process. In the case of 

completed consultations for ongoing 

Federal activities, however, the Federal 

agency would be required to reinitiate 

consultation (see Application of the 

‘‘Adverse Modification’’ Standard 

section). Designation of critical habitat, 

in that case, could result in an 

additional economic impact on small 

entities. 

In our final economic analysis of the 

proposed revision of critical habitat, we 

evaluated the potential economic effects 

on small business entities resulting from 

conservation actions related to the 

proposed revision of critical habitat for 

the San Bernardino kangaroo rat. The 

analysis is based on the estimated 

incremental impacts associated with the 

rulemaking as described in section 2 of 

the analysis. The analysis evaluates the 

potential for economic impacts related 

to activity categories including water 

conservation, flood control, and 

development. Impacts of conservation 

activities are not anticipated to affect 

small entities in the following 

categories: Fire management on Federal 

lands; invasive, nonnative plant species 

management on Federal lands; 

recreation management on Federal 

lands; and surveying, monitoring, and 

other activities on Federal lands. Land 

managers which may be impacted by 

the proposed rule include the BLM, 

USFS, SBCFCD, and private 

landowners. Of the entities that are 

likely to bear incremental impacts, there 

are no entities identified as small 

businesses, small organizations, or small 

government jurisdictions. The Federal 

agencies (BLM and USFS) and the 

special district (SBCFCD) do not meet 

the criteria for a small business. 

Individual private landowners in San 

Bernardino kangaroo rat critical habitat 

are not considered small businesses. 

Please refer to our economic analysis 

(Appendix C) of the proposed revision 

of critical habitat for a more detailed 

discussion of potential economic 

impacts. 

In summary, we considered whether 

this final rule to revise critical habitat 

would result in a significant economic 

effect on a substantial number of small 

entities. For the above reasons and 

based on currently available 

information, we certify that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. Therefore, a regulatory 

flexibility analysis is not required. 

Small Business Regulatory Enforcement 

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

Under the Small Business Regulatory 

Enforcement Fairness Act, 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 foreignbased 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). 

National Environmental Policy Act 

(NEPA) (42 U.S.C. 4321 et seq.) 

It is our position that, outside the 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 


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61986 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

do not need to prepare environmental 

analyses as defined by NEPA 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 in the courts of the 

Ninth Circuit Court of Appeals (Douglas 

County v. Babbitt, 48 F.3d 1495 (9th Cir. 

1995), cert. denied 516 U.S. 1042 

(1996)). 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995. 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. 

Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of the 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. 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. 

The 2002 designation of critical 

habitat (67 FR 19812) for the San 

Bernardino kangaroo rat included 710 

ac (290 ha) of land within the Soboba 

Band of Luisen ̃ o Indians Reservation. At 

the time of the 2002 designation, we 

included these lands as critical habitat 

for the San Bernardino kangaroo rat 

because we believed that the area 

supported several populations and 

provided continuity between two 

adjacent areas of essential habitat. These 

lands are adjacent to occupied areas that 

we are designating as critical habitat 

within the San Jacinto wash (Unit 3). 

However, at the time of the drafting of 

this final rule, we lack information 

regarding the subspecies’ location and 

habitat on Soboba Band of Luisen ̃ o 

Indians Reservation lands and are 

unable to thoroughly assess either the 

status of the subspecies on those lands 

or the management practices currently 

employed by the Tribe. Though we 

continue to believe, due to the 

continuity of these lands with known 

occupied habitat, that these Tribal lands 

are likely occupied, at least in part, by 

the San Bernardino kangaroo rat, we do 

not know whether these lands contain 

features that are essential to the 

conservation of the subspecies. As a 

result, and in light of Secretarial Order 

3206, we are not including these Tribal 

lands in the area designated as revised 

critical habitat for the San Bernardino 

kangaroo rat. We are committed to 

maintaining a positive working 

relationship with the Tribes and will 

continue our attempts to work with 

them on conservation measures 

benefiting the San Bernardino kangaroo 

rat. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http://www.regulations.gov 

and http://www.fws.gov/carlsbad/. 

Author(s) 

The primary authors of this 

rulemaking are staff at the Carlsbad Fish 

and Wildlife Office, Carlsbad, 

California. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

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

entry for ‘‘San Bernardino Kangaroo Rat 

(Dipodomys merriami parvus)’’ to read 

as follows: 

§ 17.95 Critical habitat—wildlife. 

(a) Mammals. 

* * * * * 

San Bernardino Kangaroo Rat 

(Dipodomys merriami parvus) 

(1) Critical habitat units are depicted 

for San Bernardino and Riverside 

Counties, California, on the maps below. 

(2) The PCEs of critical habitat for the 

San Bernardino kangaroo rat are the 

habitat components that provide: 

(i) Alluvial fans, washes, and 

associated floodplain areas containing 

soils consisting predominately of sand, 

loamy sand, sandy loam, and loam, 

which provide burrowing habitat 

necessary for sheltering and rearing 

offspring, storing food in surface caches, 

and movement between occupied 

patches; 

(ii) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas containing alluvial sage scrub 

habitat and associated vegetation, such 

as coastal sage scrub and chamise 

chaparral, with up to approximately 50 

percent canopy cover providing 

protection from predators, while leaving 

bare ground and open areas necessary 

for foraging and movement of this 

subspecies; and 

(iii) Upland areas adjacent to alluvial 

fans, washes, and associated floodplain 

areas, which may include marginal 

habitat such as alluvial sage scrub with 

greater than 50 percent canopy cover 

with patches of suitable soils that 

support individuals for re-population of 

wash areas following flood events. 

These areas may include agricultural 

lands, areas of inactive aggregate mining 

activities, and urban/wildland 

interfaces. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, airports, roads, other paved 

areas, and the land on which such 

structures are located) existing on the 

effective date of this rule and not 

containing one or more of the PCEs. 

(4) Data layers defining map units 

were created on a base of NAIP (USDA) 

1:24,000 maps, and critical habitat units 

were then mapped using Universal 

Transverse Mercator (UTM) coordinates. 

(5) Note: Index map of critical habitat 

units for the San Bernardino kangaroo 

rat follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61987 

BILLING CODE 4310–55–C (6) Unit 1: Santa Ana River Wash, San 

Bernardino County, California. From 

USGS 1:24,000 quadrangles San 

Bernardino North and Devore. 


jlentini on PROD1PC65 with RULES2ER17OC08.000</GPH>
61988 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 

(NAD83) coordinates (E, N): 482433, 

3777208; 482510, 3777208; 482472, 

3777140; 482478, 3776911; 482612, 

3776482; 482627, 3776397; 482637, 

3775622; 482488, 3775622; 482355, 

3775366; 482348, 3775149; 482364, 

3774946; 482386, 3774912; 482150, 

3774673; 482081, 3774571; 481748, 

3774155; 481621, 3773744; 481590, 

3773748; 481552, 3773754; 481464, 

3773760; 481227, 3773664; 481110, 

3773680; 481067, 3773702; 481054, 

3773704; 481017, 3773705; 480939, 

3773677; 480770, 3773522; 480770, 

3773486; 480755, 3773486; 480754, 

3773175; 480754, 3773170; 480731, 

3773170; 480731, 3773473; 480731, 

3773532; 480731, 3773589; 480929, 

3773768; 481548, 3774498; 481546, 

3774500; 481646, 3774625; 481627, 

3774739; 481723, 3774752; 481967, 

3775193; 481996, 3775295; 481999, 

3775520; 482088, 3775527; 482148, 

3775727; 482358, 3776254; 482367, 

3776695; 482342, 3776902; 482296, 

3777059; thence returning to 482433, 

3777208; land bounded by 486178, 

3774253; 486118, 3774252; 486084, 

3774218; 486083, 3774217; 486063, 

3774197; 486030, 3774165; 485959, 

3774096; 485933, 3774070; 485929, 

3774066; 485908, 3774045; 485869, 

3774005; 485866, 3774003; 485856, 

3773996; 485830, 3773978; 485790, 

3773949; 485779, 3773940; 485768, 

3773931; 485752, 3773918; 485752, 

3773918; 485752, 3773918; 485753, 

3773918; 485785, 3773919; 485786, 

3773919; 485851, 3773921; 485843, 

3773910; 485801, 3773869; 485762, 

3773819; 485724, 3773760; 485653, 

3773680; 485553, 3773626; 485555, 

3773539; 484779, 3773534; 484628, 

3773535; 484460, 3773521; 484384, 

3773499; 484335, 3773457; 484273, 

3773434; 484214, 3773422; 484135, 

3773370; 483968, 3773284; 483963, 

3773284; 483962, 3773151; 483165, 

3773148; 483155, 3772707; 483175, 

3772709; 483184, 3772710; 483212, 

3772710; 483968, 3772732; 483982, 

3772732; 483978, 3772346; 483972, 

3772037; 484020, 3772040; 484021, 

3772023; 484198, 3772011; 484257, 

3772092; 484782, 3772139; 484780, 

3772338; 484777, 3772734; 485573, 

3772725; 485573, 3772735; 485567, 

3772990; 485567, 3773018; 485564, 

3773122; 485969, 3773131; 486375, 

3773140; 486960, 3773152; 487249, 

3772852; 487836, 3772852; 487988, 

3772810; 488127, 3772819; 488275, 

3772838; 488435, 3772894; 488565, 

3772818; 489104, 3772812; 489682, 

3773161; 489736, 3773231; 489949, 

3773320; 490054, 3773282; 490235, 

3773380; 490237, 3773277; 490256, 

3773260; 490255, 3773255; 490255, 

3773248; 490254, 3773241; 490253, 

3773235; 490251, 3773224; 490249, 

3773218; 490248, 3773214; 490246, 

3773208; 490245, 3773205; 490242, 

3773198; 490238, 3773188; 490235, 

3773181; 490232, 3773175; 490227, 

3773167; 490224, 3773162; 490203, 

3773129; 490172, 3773081; 490138, 

3773028; 490135, 3773031; 490053, 

3772906; 489911, 3772688; 489904, 

3772676; 489642, 3772302; 489637, 

3772295; 489628, 3772281; 489558, 

3772182; 489546, 3772168; 489540, 

3772156; 489535, 3772143; 489531, 

3772132; 489527, 3772106; 489527, 

3772092; 489514, 3772094; 489484, 

3772101; 489491, 3772085; 489552, 

3771945; 489606, 3771691; 489739, 

3771615; 489778, 3771536; 490139, 

3771314; 490251, 3771275; 490362, 

3771186; 490568, 3771101; 490581, 

3771044; 490828, 3771009; 490930, 

3770866; 490949, 3770742; 491032, 

3770714; 491032, 3770715; 491059, 

3770715; 491097, 3770703; 491142, 

3770693; 491174, 3770705; 491202, 

3770704; 491250, 3770685; 491293, 

3770664; 491380, 3770670; 491439, 

3770674; 491476, 3770671; 491515, 

3770689; 491537, 3770684; 491549, 

3770689; 491617, 3770700; 491652, 

3770703; 491670, 3770703; 491686, 

3770708; 491707, 3770703; 491733, 

3770688; 491760, 3770686; 491795, 

3770687; 491827, 3770683; 491850, 

3770675; 491877, 3770683; 491903, 

3770684; 491966, 3770680; 491990, 

3770671; 492044, 3770663; 492089, 

3770660; 492107, 3770664; 492121, 

3770662; 492150, 3770649; 492174, 

3770632; 492235, 3770626; 492287, 

3770632; 492341, 3770633; 492377, 

3770635; 492408, 3770635; 492430, 

3770630; 492454, 3770613; 492484, 

3770615; 492503, 3770622; 492528, 

3770629; 492556, 3770623; 492585, 

3770621; 492608, 3770622; 492631, 

3770646; 492664, 3770673; 492689, 

3770690; 492728, 3770708; 492788, 

3770715; 492838, 3770712; 492867, 

3770710; 492893, 3770710; 492942, 

3770722; 493008, 3770721; 493071, 

3770728; 493109, 3770725; 493169, 

3770711; 493210, 3770706; 493249, 

3770705; 493272, 3770690; 493286, 

3770684; 493312, 3770680; 493353, 

3770680; 493389, 3770691; 493420, 

3770719; 493448, 3770719; 493477, 

3770718; 493529, 3770744; 493567, 

3770763; 493603, 3770784; 493603, 

3770798; 493621, 3770807; 493650, 

3770798; 493673, 3770812; 493707, 

3770827; 493722, 3770849; 493753, 

3770890; 493790, 3770903; 493814, 

3770932; 493838, 3770965; 493870, 

3770976; 493897, 3771014; 493920, 

3771030; 493945, 3771020; 493990, 

3771003; 494023, 3771003; 494058, 

3771017; 494092, 3771036; 494112, 

3771068; 494134, 3771085; 494155, 

3771117; 494182, 3771145; 494198, 

3771148; 494221, 3771168; 494530, 

3771168; 494534, 3771164; 494885, 

3771167; 494829, 3771114; 494801, 

3771078; 494764, 3771060; 494709, 

3771058; 494676, 3771045; 494661, 

3771022; 494625, 3771007; 494584, 

3770923; 494545, 3770878; 494523, 

3770849; 494474, 3770791; 494450, 

3770755; 494427, 3770710; 494409, 

3770688; 494375, 3770658; 494362, 

3770626; 494321, 3770621; 494187, 

3770621; 494080, 3770610; 493989, 

3770600; 493892, 3770580; 493800, 

3770550; 493759, 3770543; 493729, 

3770528; 493679, 3770505; 493650, 

3770480; 493623, 3770471; 493599, 

3770476; 493569, 3770480; 493545, 

3770471; 493523, 3770463; 493502, 

3770464; 493487, 3770469; 493474, 

3770469; 493457, 3770464; 493336, 

3770443; 493234, 3770425; 493158, 

3770419; 493097, 3770413; 493061, 

3770411; 493066, 3770406; 493082, 

3770397; 493082, 3770389; 493069, 

3770392; 493054, 3770397; 493037, 

3770398; 493035, 3770399; 492992, 

3770422; 492923, 3770437; 492815, 

3770459; 492664, 3770479; 492330, 

3770501; 492032, 3770524; 491898, 

3770533; 491795, 3770536; 491696, 

3770531; 491433, 3770524; 491196, 

3770529; 490853, 3770538; 490791, 

3770523; 490354, 3770790; 490049, 

3771055; 489624, 3771408; 489247, 

3771737; 489233, 3771730; 489195, 

3771766; 489156, 3771800; 489100, 

3771838; 489056, 3771872; 489040, 

3771882; 488989, 3771914; 488941, 

3771943; 488921, 3771956; 488896, 

3771969; 488869, 3771987; 488812, 

3772014; 488740, 3772046; 488691, 

3772067; 488662, 3772080; 488635, 

3772090; 488597, 3772107; 488523, 

3772127; 488441, 3772148; 488353, 

3772171; 488320, 3772172; 488194, 

3772172; 488174, 3772175; 488143, 

3772186; 488128, 3772192; 488109, 

3772196; 488057, 3772201; 487983, 

3772200; 487921, 3772198; 487854, 

3772191; 487798, 3772186; 487738, 

3772177; 487698, 3772167; 487688, 

3772165; 487651, 3772155; 487603, 

3772144; 487578, 3772136; 487543, 

3772128; 487492, 3772114; 487449, 

3772104; 487424, 3772097; 487392, 

3772088; 487372, 3772085; 487358, 

3772082; 487343, 3772081; 487319, 

3772078; 487322, 3772063; 487323, 

3772023; 487436, 3771514; 487188, 

3771518; 487209, 3771571; 487180, 

3771590; 487180, 3771624; 485815, 

3771615; 485590, 3771539; 485590, 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61989 

3771542; 485488, 3771545; 485412, 

3771501; 485282, 3771412; 485247, 

3771450; 485161, 3771406; 485132, 

3771415; 484866, 3771415; 484742, 

3771485; 484624, 3771514; 484412, 

3771510; 484352, 3771473; 484231, 

3771469; 484069, 3771532; 484021, 

3771532; 483872, 3771488; 483710, 

3771485; 483583, 3771510; 483380, 

3771580; 483374, 3771576; 483352, 

3771632; 483272, 3771646; 483209, 

3771670; 483159, 3771672; 483159, 

3771674; 483080, 3771709; 482980, 

3771761; 482999, 3771872; 482656, 

3771948; 482643, 3771914; 482475, 

3772002; 482354, 3772060; 482304, 

3772060; 482294, 3772110; 482154, 

3772117; 482127, 3772144; 482126, 

3772206; 482062, 3772206; 481970, 

3772307; 481518, 3772310; 481515, 

3772426; 481295, 3772430; 480869, 

3772419; 480763, 3772407; 480757, 

3772406; 480758, 3772526; 480758, 

3772530; 480758, 3772637; 480758, 

3772719; 480757, 3773100; 481007, 

3773063; 481231, 3773133; 481387, 

3773107; 481529, 3773153; 481532, 

3773154; 481579, 3773163; 481607, 

3773157; 481568, 3772747; 481580, 

3772743; 481747, 3772743; 482026, 

3772743; 482143, 3772692; 482198, 

3772685; 482255, 3772679; 482282, 

3772679; 482366, 3772681; 482368, 

3772681; 482368, 3772678; 482412, 

3772682; 482415, 3772682; 482418, 

3772682; 482431, 3772685; 482461, 

3772691; 482466, 3772694; 482472, 

3772695; 482487, 3772705; 482507, 

3772716; 482528, 3772732; 482533, 

3772736; 482564, 3772760; 482618, 

3772806; 482674, 3772861; 482695, 

3772879; 482708, 3772895; 482735, 

3772922; 482766, 3772963; 482782, 

3772980; 482781, 3772986; 482796, 

3773011; 482720, 3773048; 482825, 

3773282; 482909, 3773447; 482958, 

3773513; 483015, 3773553; 483118, 

3773580; 483182, 3773580; 483261, 

3773580; 483325, 3773585; 483436, 

3773602; 483554, 3773602; 483580, 

3773626; 483629, 3773687; 483682, 

3773741; 483739, 3773784; 483809, 

3773811; 483833, 3773841; 483843, 

3773861; 483893, 3773871; 483940, 

3773895; 483970, 3773908; 483982, 

3773910; 483982, 3773930; 484666, 

3773926; 484678, 3773928; 484688, 

3773927; 484698, 3773934; 484725, 

3773942; 484763, 3773944; 484807, 

3773966; 484824, 3773978; 484864, 

3773982; 484914, 3773988; 484961, 

3774019; 485013, 3774025; 485068, 

3774031; 485128, 3774048; 485130, 

3774051; 485219, 3774081; 485282, 

3774087; 485320, 3774106; 485363, 

3774132; 485431, 3774134; 485488, 

3774134; 485540, 3774140; 485550, 

3774142; 485550, 3774140; 485550, 

3774114; 485755, 3774123; 485755, 

3774123; 485754, 3774051; 485548, 

3773967; 485548, 3773966; 485548, 

3773966; 485548, 3773965; 485548, 

3773965; 485547, 3773927; 485547, 

3773927; 485547, 3773922; 485547, 

3773922; 485547, 3773912; 485547, 

3773912; 485547, 3773912; 485601, 

3773913; 485620, 3773914; 485650, 

3773944; 485754, 3774051; 485754, 

3774051; 485754, 3774051; 485754, 

3774051; 485754, 3774051; 485832, 

3774096; 485846, 3774105; 485871, 

3774124; 485875, 3774126; 485876, 

3774128; 485922, 3774178; 485951, 

3774215; 485923, 3774214; 485923, 

3774214; 485923, 3774214; 485898, 

3774214; 485858, 3774213; 485858, 

3774213; 485804, 3774211; 485829, 

3774225; 485871, 3774243; 485914, 

3774271; 486002, 3774283; 486041, 

3774283; 486107, 3774283; 486164, 

3774283; thence returning to 486178, 

3774253; land bounded by 483188, 

3772080; 483188, 3772080; 483185, 

3771948; 483187, 3771946; 483200, 

3771933; 483200, 3771933; 483200, 

3771933; 483210, 3771944; 483210, 

3771944; 483210, 3771944; 483210, 

3771944; 483215, 3771944; 483272, 

3771944; 483409, 3771944; 483848, 

3771945; 483902, 3771945; 483913, 

3771945; 483914, 3771945; 483971, 

3771945; 483971, 3771945; 483970, 

3771985; 483970, 3772008; 483969, 

3772344; 483600, 3772345; 483374, 

3772346; 483211, 3772346; 483211, 

3772346; 483211, 3772076; thence 

returning to 483188, 3772080; land 

bounded by 482603, 3772347; 482394, 

3772348; 482385, 3772348; 482376, 

3772348; 482367, 3772348; 482367, 

3772348; 482367, 3772336; 482368, 

3772263; 482368, 3772227; 482368, 

3772227; 482368, 3772227; 482377, 

3772221; 482537, 3772147; 482622, 

3772108; 482644, 3772097; 482972, 

3771945; 482972, 3771945; 482989, 

3771930; 483032, 3771892; 483032, 

3771892; 483032, 3771892; 483071, 

3771893; 483159, 3771893; 483159, 

3771893; 483160, 3771893; 483160, 

3771972; 483160, 3772072; 483160, 

3772089; 483160, 3772346; 482602, 

3772348; 482603, 3772347; thence 

returning to 482603, 3772347; land 

bounded by 487253, 3772752; 487213, 

3772753; 487209, 3772753; 487205, 

3772753; 487202, 3772753; 487184, 

3772754; 487184, 3772754; 487178, 

3772754; 487178, 3772754; 486925, 

3772750; 486908, 3772749; 486887, 

3772749; 486778, 3772747; 486778, 

3772747; 486778, 3772618; 486779, 

3772346; 486463, 3772343; 486380, 

3772342; 486380, 3772362; 486377, 

3772741; 485975, 3772734; 485975, 

3772732; 485976, 3772665; 485980, 

3772361; 485981, 3772338; 485981, 

3772338; 485582, 3772333; 485582, 

3772333; 485573, 3772333; 485182, 

3772335; 485183, 3771998; 485184, 

3771948; 485184, 3771944; 485184, 

3771940; 484909, 3771941; 484782, 

3771941; 484782, 3771945; 484782, 

3771992; 484782, 3771994; 484445, 

3771996; 484381, 3771996; 484381, 

3771943; 484381, 3771943; 484381, 

3771882; 484381, 3771881; 484381, 

3771879; 484381, 3771875; 484381, 

3771824; 484381, 3771819; 484383, 

3771819; 484482, 3771819; 484482, 

3771819; 484693, 3771820; 484693, 

3771820; 484782, 3771821; 484782, 

3771821; 484852, 3771821; 484918, 

3771821; 485184, 3771821; 485184, 

3771821; 485334, 3771821; 485577, 

3771821; 485595, 3771821; 485595, 

3771821; 485595, 3771822; 485595, 

3771840; 485595, 3771841; 485586, 

3771875; 485585, 3771939; 485594, 

3771939; 485650, 3771939; 485651, 

3771939; 485653, 3771939; 485983, 

3771941; 485983, 3771941; 485983, 

3771945; 485983, 3771961; 485983, 

3771987; 485982, 3772032; 485983, 

3772032; 486380, 3772143; 486380, 

3772143; 486434, 3772144; 486534, 

3772145; 486556, 3772146; 486580, 

3772146; 486587, 3772146; 486896, 

3772151; 486935, 3772151; 486981, 

3772152; 487032, 3772153; 487119, 

3772154; 487118, 3772179; 487118, 

3772293; 487117, 3772350; 487117, 

3772350; 487167, 3772350; 487173, 

3772350; 487177, 3772350; 487178, 

3772350; 487178, 3772350; 487213, 

3772350; 487214, 3772350; 487223, 

3772350; 487226, 3772350; 487227, 

3772350; 487229, 3772350; 487229, 

3772350; 487232, 3772350; 487233, 

3772350; 487302, 3772349; 487303, 

3772349; 487303, 3772349; 487309, 

3772348; 487310, 3772348; 487586, 

3772344; 487674, 3772343; 487726, 

3772342; 487758, 3772342; 487763, 

3772342; 487768, 3772342; 487775, 

3772341; 487790, 3772341; 487806, 

3772341; 487828, 3772341; 487849, 

3772340; 487849, 3772340; 487995, 

3772338; 487995, 3772338; 488139, 

3772336; 488139, 3772336; 488140, 

3772340; 488139, 3772336; 488144, 

3772336; 488403, 3772332; 488403, 

3772332; 488409, 3772332; 488607, 

3772329; 488614, 3772329; 488614, 

3772329; 488614, 3772329; 488614, 

3772329; 488803, 3772326; 488811, 

3772326; 488811, 3772326; 488812, 

3772447; 488812, 3772526; 488812, 

3772526; 488608, 3772528; 488608, 

3772528; 488471, 3772529; 488405, 

3772530; 488404, 3772530; 488390, 

3772530; 488351, 3772531; 488230, 

3772532; 488230, 3772532; 488122, 

3772533; 488122, 3772533; 488010, 


jlentini on PROD1PC65 with RULES2
61990 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

3772533; 488008, 3772533; 487996, 

3772533; 487978, 3772543; 487842, 

3772614; 487838, 3772617; 487808, 

3772632; 487808, 3772632; 487808, 

3772632; 487808, 3772632; 487790, 

3772642; 487787, 3772643; 487778, 

3772648; 487589, 3772747; 487589, 

3772747; 487290, 3772752; 487290, 

3772752; 487290, 3772752; 487254, 

3772752; thence returning to 487253, 

3772752; land bounded by 480141, 

3773180; 480561, 3773170; 480358, 

3773169; 480178, 3773168; 480175, 

3773072; 479952, 3773074; 480084, 

3773116; 480141, 3773134; thence 

returning to 480141, 3773180; and land 

bounded by 479941, 3773070; 479952, 

3773074; 479949, 3772973; 479948, 

3772898; 479145, 3772565; 479144, 

3772356; 479994, 3772358; 480148, 

3772359; 479833, 3772330; 479557, 

3772285; 479202, 3772222; 479151, 

3772184; 479140, 3772004; 478976, 

3771948; 478779, 3771945; 478713, 

3771904; 478522, 3771812; 478287, 

3771815; 478205, 3771764; 477763, 

3771491; 477697, 3771437; 477608, 

3771412; 477525, 3771383; 477309, 

3771320; 477170, 3771266; 477170, 

3771212; 477109, 3771212; 477014, 

3771164; 476912, 3771110; 476789, 

3771082; 476655, 3771044; 476503, 

3771129; 476408, 3771152; 476379, 

3771088; 476274, 3771072; 476112, 

3770910; 476046, 3770830; 476048, 

3770944; 476057, 3771018; 476062, 

3771129; 476062, 3771256; 476067, 

3771377; 476132, 3771405; 476215, 

3771428; 476304, 3771450; 476275, 

3771579; 476785, 3771680; 476789, 

3771888; 477033, 3771888; 476982, 

3771704; 477522, 3771701; 477528, 

3771863; 477662, 3771955; 477697, 

3771993; 478227, 3772282; 478211, 

3772352; 478240, 3772399; 478249, 

3772400; 478370, 3772405; 478373, 

3772405; 478454, 3772394; 479016, 

3772392; 479139, 3772392; 479139, 

3772634; 479544, 3772790; 479599, 

3772812; 479942, 3772945; thence 

returning to 479941, 3773070; excluding 

lands bounded by 487253, 3772752; 

487254, 3772752; 487290, 3772752; 

487290, 3772752; 487290, 3772752; 

487589, 3772747; 487589, 3772747; 

487778, 3772648; 487787, 3772643; 

487790, 3772642; 487808, 3772632; 

487808, 3772632; 487808, 3772632; 

487808, 3772632; 487838, 3772617; 

487842, 3772614; 487978, 3772543; 

487996, 3772533; 488008, 3772533; 

488010, 3772533; 488122, 3772533; 

488122, 3772533; 488230, 3772532; 

488230, 3772532; 488351, 3772531; 

488390, 3772530; 488404, 3772530; 

488405, 3772530; 488471, 3772529; 

488608, 3772528; 488608, 3772528; 

488812, 3772526; 488812, 3772526; 

488812, 3772447; 488811, 3772326; 

488811, 3772326; 488803, 3772326; 

488614, 3772329; 488614, 3772329; 

488614, 3772329; 488614, 3772329; 

488607, 3772329; 488409, 3772332; 

488403, 3772332; 488403, 3772332; 

488144, 3772336; 488139, 3772336; 

488140, 3772340; 488139, 3772336; 

488139, 3772336; 487995, 3772338; 

487995, 3772338; 487849, 3772340; 

487849, 3772340; 487828, 3772341; 

487806, 3772341; 487790, 3772341; 

487775, 3772341; 487768, 3772342; 

487763, 3772342; 487758, 3772342; 

487726, 3772342; 487674, 3772343; 

487586, 3772344; 487310, 3772348; 

487309, 3772348; 487303, 3772349; 

487303, 3772349; 487302, 3772349; 

487233, 3772350; 487232, 3772350; 

487229, 3772350; 487229, 3772350; 

487227, 3772350; 487226, 3772350; 

487223, 3772350; 487214, 3772350; 

487213, 3772350; 487178, 3772350; 

487178, 3772350; 487177, 3772350; 

487173, 3772350; 487167, 3772350; 

487117, 3772350; 487117, 3772350; 

487118, 3772293; 487118, 3772179; 

487119, 3772154; 487032, 3772153; 

486981, 3772152; 486935, 3772151; 

486896, 3772151; 486587, 3772146; 

486580, 3772146; 486556, 3772146; 

486534, 3772145; 486434, 3772144; 

486380, 3772143; 486380, 3772143; 

485983, 3772032; 485982, 3772032; 

485983, 3771987; 485983, 3771961; 

485983, 3771945; 485983, 3771941; 

485983, 3771941; 485653, 3771939; 

485651, 3771939; 485650, 3771939; 

485594, 3771939; 485585, 3771939; 

485586, 3771875; 485595, 3771841; 

485595, 3771840; 485595, 3771822; 

485595, 3771821; 485595, 3771821; 

485577, 3771821; 485334, 3771821; 

485184, 3771821; 485184, 3771821; 

484918, 3771821; 484852, 3771821; 

484782, 3771821; 484782, 3771821; 

484693, 3771820; 484693, 3771820; 

484482, 3771819; 484482, 3771819; 

484383, 3771819; 484381, 3771819; 

484381, 3771824; 484381, 3771875; 

484381, 3771879; 484381, 3771881; 

484381, 3771882; 484381, 3771943; 

484381, 3771943; 484381, 3771996; 

484445, 3771996; 484782, 3771994; 

484782, 3771992; 484782, 3771945; 

484782, 3771941; 484909, 3771941; 

485184, 3771940; 485184, 3771944; 

485184, 3771948; 485183, 3771998; 

485182, 3772335; 485573, 3772333; 

485582, 3772333; 485582, 3772333; 

485981, 3772338; 485981, 3772338; 

485980, 3772361; 485976, 3772665; 

485975, 3772732; 485975, 3772734; 

486377, 3772741; 486380, 3772362; 

486380, 3772342; 486463, 3772343; 

486779, 3772346; 486778, 3772618; 

486778, 3772747; 486778, 3772747; 

486887, 3772749; 486908, 3772749; 

486925, 3772750; 487178, 3772754; 

487178, 3772754; 487184, 3772754; 

487184, 3772754; 487202, 3772753; 

487205, 3772753; 487209, 3772753; 

487213, 3772753; thence returning to 

487253, 3772752; excluding lands 

bounded by 482603, 3772347; 482603, 

3772347; 482602, 3772348; 483160, 

3772346; 483160, 3772089; 483160, 

3772072; 483160, 3771972; 483160, 

3771893; 483159, 3771893; 483159, 

3771893; 483071, 3771893; 483032, 

3771892; 483032, 3771892; 483032, 

3771892; 482989, 3771930; 482972, 

3771945; 482972, 3771945; 482644, 

3772097; 482622, 3772108; 482537, 

3772147; 482377, 3772221; 482368, 

3772227; 482368, 3772227; 482368, 

3772227; 482368, 3772263; 482367, 

3772336; 482367, 3772348; 482367, 

3772348; 482376, 3772348; 482385, 

3772348; 482394, 3772348; thence 

returning to 482603, 3772347; and 

excluding lands bounded by 483188, 

3772080; 483211, 3772076; 483211, 

3772346; 483211, 3772346; 483374, 

3772346; 483600, 3772345; 483969, 

3772344; 483970, 3772008; 483970, 

3771985; 483971, 3771945; 483971, 

3771945; 483914, 3771945; 483913, 

3771945; 483902, 3771945; 483848, 

3771945; 483409, 3771944; 483272, 

3771944; 483215, 3771944; 483210, 

3771944; 483210, 3771944; 483210, 

3771944; 483210, 3771944; 483200, 

3771933; 483200, 3771933; 483200, 

3771933; 483187, 3771946; 483185, 

3771948; thence returning to 483188, 

3772080. 

(ii) Note: Map of Unit 1—Santa Ana 

River Wash follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61991 

BILLING CODE 4310–55–C (7) Unit 2: Lytle/Cajon Creek Wash, 

San Bernardino County, California. 

From USGS 1:24,000 quadrangles San 


jlentini on PROD1PC65 with RULES2ER17OC08.001</GPH>
61992 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

Bernardino South, Redlands, Yucaipa, 

and Harrison Mountain. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 

(NAD83) coordinates (E, N): 459952, 

3788034; 460404, 3788506; 460540, 

3788401; 460651, 3788312; 460753, 

3788234; 460844, 3788166; 461055, 

3788012; 461159, 3787940; 461251, 

3787876; 461287, 3787860; 461340, 

3787819; 461597, 3787644; 461773, 

3787530; 461793, 3787541; 461822, 

3787541; 461919, 3787456; 462141, 

3787271; 462332, 3787119; 462452, 

3787052; 462562, 3786978; 462505, 

3786840; 462634, 3786755; 462747, 

3786722; 462898, 3786698; 462948, 

3786656; 463021, 3786224; 462998, 

3786186; 463006, 3786144; 462925, 

3785866; 463882, 3784809; 464062, 

3784361; 464695, 3782785; 465055, 

3783227; 465304, 3783532; 465304, 

3783532; 465302, 3783530; 465302, 

3783530; 465433, 3783427; 465429, 

3783386; 465403, 3783271; 465424, 

3783199; 465392, 3783068; 465424, 

3782988; 465432, 3782982; 465431, 

3782981; 465596, 3782632; 465041, 

3782194; 464977, 3782143; 464956, 

3782135; 464966, 3782109; 464966, 

3782015; 464970, 3782018; 464983, 

3782026; 464995, 3782034; 465009, 

3782041; 465022, 3782049; 465035, 

3782056; 465049, 3782063; 465062, 

3782070; 465076, 3782077; 465089, 

3782083; 465103, 3782089; 465117, 

3782095; 465131, 3782101; 465145, 

3782106; 465146, 3782107; 466006, 

3782434; 465987, 3782362; 465982, 

3782341; 465477, 3782150; 465173, 

3782034; 465170, 3782033; 465156, 

3782027; 465143, 3782022; 465129, 

3782016; 465116, 3782010; 465103, 

3782003; 465090, 3781997; 465077, 

3781990; 465064, 3781983; 465051, 

3781976; 465039, 3781969; 465026, 

3781961; 465014, 3781954; 465002, 

3781946; 464990, 3781938; 464978, 

3781929; 464966, 3781921; 464966, 

3781920; 464964, 3781574; 465590, 

3781569; 465860, 3781567; 466040, 

3781032; 466159, 3780676; 466190, 

3780676; 466195, 3780697; 466230, 

3780685; 466288, 3780630; 466333, 

3780568; 466385, 3780353; 466406, 

3780260; 466420, 3780264; 466419, 

3780263; 466500, 3779886; 466599, 

3779588; 466653, 3779578; 466710, 

3779490; 466802, 3779432; 466802, 

3779321; 466837, 3779312; 466834, 

3779254; 466897, 3779236; 466907, 

3779188; 467059, 3779188; 467069, 

3778934; 467307, 3778921; 467516, 

3778692; 467672, 3778689; 467678, 

3778535; 467980, 3778222; 468094, 

3778178; 468101, 3777708; 468260, 

3777309; 468175, 3777309; 468185, 

3777328; 468198, 3777328; 468188, 

3777341; 468177, 3777339; 468176, 

3777342; 468174, 3777352; 468171, 

3777361; 468168, 3777371; 468164, 

3777380; 468161, 3777389; 468157, 

3777398; 468153, 3777407; 468149, 

3777416; 468144, 3777425; 468139, 

3777434; 468134, 3777443; 468129, 

3777451; 468127, 3777454; 468130, 

3777456; 468053, 3777552; 468057, 

3777555; 467726, 3777938; 467602, 

3777855; 467580, 3777877; 467649, 

3777923; 467369, 3778171; 467145, 

3778607; 466888, 3778905; 466853, 

3778946; 466849, 3778952; 466840, 

3778963; 466831, 3778975; 466822, 

3778987; 466813, 3778999; 466805, 

3779011; 466797, 3779024; 466789, 

3779036; 466781, 3779049; 466773, 

3779062; 466766, 3779075; 466759, 

3779088; 466752, 3779101; 466745, 

3779114; 466739, 3779127; 466733, 

3779141; 466726, 3779154; 466725, 

3779158; 466709, 3779198; 466699, 

3779194; 466664, 3779281; 466664, 

3779281; 466541, 3779591; 466540, 

3779595; 466537, 3779601; 466535, 

3779608; 466534, 3779612; 466505, 

3779724; 466503, 3779726; 466496, 

3779734; 465927, 3780307; 465267, 

3780970; 464964, 3781484; 464961, 

3780501; 464659, 3780502; 466387, 

3778762; 466387, 3778762; 467801, 

3777337; 467848, 3777336; 467863, 

3777311; 467598, 3777313; 466491, 

3778019; 466490, 3778023; 466460, 

3778088; 466416, 3778228; 466405, 

3778273; 466367, 3778416; 466354, 

3778439; 466254, 3778578; 466186, 

3778645; 466107, 3778696; 465939, 

3778774; 465572, 3778936; 464859, 

3779220; 464742, 3779254; 464602, 

3779284; 464484, 3779331; 464391, 

3779358; 464292, 3779409; 464212, 

3779448; 464136, 3779482; 464060, 

3779539; 464011, 3779580; 463936, 

3779606; 463869, 3779643; 463847, 

3779711; 463798, 3779747; 463708, 

3779880; 463765, 3780088; 463688, 

3780095; 463722, 3780180; 463627, 

3780243; 463400, 3780341; 463276, 

3780386; 463334, 3780528; 463297, 

3780571; 463231, 3780563; 463014, 

3780758; 462904, 3780750; 462716, 

3780655; 462565, 3780682; 462446, 

3780764; 462442, 3780843; 462293, 

3780958; 462150, 3781059; 461632, 

3781113; 461398, 3781138; 461295, 

3781153; 461250, 3781168; 461189, 

3781198; 461131, 3781238; 461089, 

3781274; 461058, 3781268; 461040, 

3781256; 460986, 3781207; 460722, 

3781407; 460204, 3781785; 459809, 

3782090; 459809, 3782183; 459796, 

3782276; 459794, 3782282; 459866, 

3782398; 459941, 3782522; 460082, 

3782680; 460409, 3783008; 460480, 

3782941; 460484, 3782940; 460684, 

3782814; 460916, 3782671; 460933, 

3782660; 460987, 3782627; 461028, 

3782600; 461065, 3782580; 461109, 

3782556; 461150, 3782537; 461192, 

3782524; 461236, 3782518; 461272, 

3782514; 461318, 3782505; 461356, 

3782492; 461391, 3782476; 461420, 

3782458; 461468, 3782428; 461531, 

3782389; 461570, 3782364; 461594, 

3782352; 461614, 3782343; 461644, 

3782334; 461679, 3782330; 461721, 

3782318; 461752, 3782304; 461784, 

3782284; 461811, 3782266; 461828, 

3782249; 461845, 3782230; 461863, 

3782206; 461882, 3782180; 461904, 

3782158; 461930, 3782137; 461958, 

3782120; 462049, 3782063; 462413, 

3781835; 462873, 3781547; 463898, 

3780891; 463997, 3781084; 463824, 

3781308; 463789, 3781551; 463848, 

3781606; 463849, 3781605; 463851, 

3781606; 463943, 3781748; 463957, 

3781677; 463948, 3781588; 464043, 

3781499; 464081, 3781502; 464103, 

3781534; 464065, 3781588; 464113, 

3781598; 464160, 3781636; 464227, 

3781575; 464243, 3781537; 464173, 

3781474; 464259, 3781356; 464313, 

3781404; 464376, 3781353; 464440, 

3781470; 464522, 3781591; 464494, 

3781960; 464867, 3782098; 464948, 

3782128; 464938, 3782153; 464827, 

3782448; 464659, 3782622; 464624, 

3782717; 464626, 3782720; 464556, 

3782900; 464540, 3782945; 464517, 

3783006; 464558, 3783074; 464372, 

3783524; 464208, 3783799; 464180, 

3783870; 464157, 3783972; 464167, 

3784064; 464135, 3784163; 464094, 

3784264; 463986, 3784414; 463922, 

3784560; 463905, 3784580; 463905, 

3784580; 463783, 3784722; 463721, 

3784874; 463636, 3784970; 463519, 

3785042; 463225, 3785145; 463249, 

3785208; 462925, 3785424; 462767, 

3785557; 462611, 3785655; 462526, 

3785643; 462109, 3786075; 462184, 

3786450; 462194, 3786484; 462049, 

3786522; 461909, 3786595; 461686, 

3786755; 461357, 3787001; 460956, 

3787294; 460860, 3787365; 460698, 

3787481; 460543, 3787598; 460324, 

3787760; 460020, 3787985; thence 

returning to 459952, 3788034; and land 

bounded by 465902, 3781761; 465967, 

3781566; 466006, 3781566; 466035, 

3781479; 466349, 3781286; 466346, 

3781275; 465922, 3781528; 465922, 

3781567; 465860, 3781567; 465893, 

3781759; 465893, 3781758; 465894, 

3781764; thence returning to 465902, 

3781761. 

(ii) Note: Map of Unit 2—Lytle/Cajon 

Creek Wash follows: 

BILLING CODE 4310–55–P 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61993 

BILLING CODE 4310–55–C (8) Unit 3: San Jacinto River Wash, 

Riverside County, California. From 

USGS 1:24,000 quadrangles San Jacinto, 

Lake Fulmor, and Blackburn Canyon. 


jlentini on PROD1PC65 with RULES2ER17OC08.002</GPH>
61994 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 

(NAD83) coordinates (E, N): 506626, 

3737807; 506919, 3737520; 507441, 

3737006; 507652, 3736797; 507652, 

3736797; 507542, 3736682; 507439, 

3736575; 507466, 3736575; 507466, 

3736575; 507680, 3736576; 507877, 

3736577; 507877, 3736577; 507915, 

3736540; 507921, 3736534; 507968, 

3736488; 507969, 3736487; 508139, 

3736320; 508225, 3736236; 508250, 

3736211; 508250, 3736211; 508250, 

3736209; 508250, 3736111; 507865, 

3736109; 507865, 3736126; 507865, 

3736134; 507865, 3736136; 507865, 

3736146; 507811, 3736147; 507730, 

3736182; 507692, 3736202; 507730, 

3736216; 507465, 3736422; 507445, 

3736438; 507374, 3736495; 507358, 

3736507; 507332, 3736481; 507328, 

3736485; 507358, 3736514; 507352, 

3736535; 507344, 3736558; 507321, 

3736626; 507306, 3736656; 507275, 

3736689; 507231, 3736733; 507185, 

3736796; 507165, 3736822; 507165, 

3736822; 507162, 3737005; 507161, 

3737049; 506929, 3737280; 506688, 

3737512; 506696, 3737306; 506633, 

3737363; 506633, 3737362; 506550, 

3737440; 506367, 3737614; 506367, 

3737614; 506363, 3737620; 506354, 

3737633; 506349, 3737640; 506346, 

3737645; 506337, 3737658; 506329, 

3737671; 506328, 3737671; 506320, 

3737684; 506318, 3737688; 506314, 

3737694; 506307, 3737704; 506306, 

3737706; 506300, 3737714; 506296, 

3737720; 506294, 3737724; 506287, 

3737734; 506287, 3737734; 506280, 

3737744; 506275, 3737752; 506273, 

3737755; 506270, 3737760; 506267, 

3737765; 506265, 3737767; 506260, 

3737775; 506253, 3737785; 506250, 

3737790; 506246, 3737795; 506244, 

3737799; 506240, 3737805; 506239, 

3737807; 506238, 3737808; 506238, 

3737808; 506234, 3737814; 506233, 

3737816; 506231, 3737818; 506226, 

3737826; 506222, 3737831; 506220, 

3737836; 506213, 3737846; 506213, 

3737846; 506213, 3737846; 506030, 

3738122; 506001, 3738167; 505972, 

3738212; 505915, 3738309; 505915, 

3738309; 505916, 3738309; 506026, 

3738385; 506037, 3738392; 506037, 

3738392; 506134, 3738296; thence 

returning to 506626, 3737807; land 

bounded by 506699, 3737003; 506719, 

3737003; 506763, 3737003; 506772, 

3737003; 506852, 3736917; 506882, 

3736906; 506882, 3736905; 506883, 

3736905; 506883, 3736904; 506883, 

3736904; 506884, 3736903; 506884, 

3736903; 506885, 3736903; 506885, 

3736902; 506885, 3736902; 506886, 

3736901; 506886, 3736901; 506886, 

3736900; 506887, 3736900; 506887, 

3736899; 506888, 3736899; 506888, 

3736898; 506888, 3736898; 506889, 

3736897; 506889, 3736897; 506889, 

3736896; 506890, 3736896; 506890, 

3736895; 506891, 3736895; 506891, 

3736894; 506891, 3736894; 506892, 

3736893; 506892, 3736893; 506892, 

3736892; 506893, 3736892; 506893, 

3736891; 506893, 3736891; 506894, 

3736890; 506894, 3736890; 506894, 

3736889; 506895, 3736889; 506895, 

3736888; 506895, 3736888; 506896, 

3736887; 506896, 3736887; 506896, 

3736886; 506897, 3736886; 506897, 

3736885; 506897, 3736885; 506898, 

3736884; 506898, 3736884; 506898, 

3736883; 506899, 3736883; 506899, 

3736882; 506899, 3736882; 506900, 

3736881; 506900, 3736881; 506900, 

3736880; 506901, 3736880; 506901, 

3736879; 506901, 3736879; 506902, 

3736878; 506902, 3736877; 506902, 

3736877; 506902, 3736876; 506903, 

3736876; 506903, 3736875; 506903, 

3736875; 506904, 3736874; 506904, 

3736874; 506904, 3736873; 506904, 

3736873; 506905, 3736872; 506905, 

3736872; 506905, 3736871; 506906, 

3736871; 506906, 3736870; 506906, 

3736869; 506906, 3736869; 506907, 

3736868; 506907, 3736868; 506907, 

3736867; 506908, 3736867; 506908, 

3736866; 506908, 3736866; 506908, 

3736865; 506909, 3736865; 506909, 

3736864; 506909, 3736863; 506909, 

3736863; 506910, 3736862; 506910, 

3736862; 506910, 3736861; 506910, 

3736861; 506911, 3736860; 506911, 

3736859; 506911, 3736859; 506911, 

3736858; 506911, 3736858; 506912, 

3736857; 506912, 3736857; 506912, 

3736856; 506912, 3736856; 506913, 

3736855; 506913, 3736854; 506913, 

3736854; 506913, 3736853; 506914, 

3736853; 506914, 3736852; 506914, 

3736852; 506914, 3736851; 506914, 

3736850; 506915, 3736850; 506915, 

3736849; 506915, 3736849; 506915, 

3736848; 506915, 3736848; 506916, 

3736847; 506916, 3736846; 506916, 

3736846; 506916, 3736845; 506916, 

3736845; 506917, 3736844; 506917, 

3736844; 506917, 3736843; 506917, 

3736842; 506917, 3736842; 506917, 

3736841; 506918, 3736841; 506918, 

3736840; 506918, 3736839; 506918, 

3736839; 506918, 3736838; 506918, 

3736838; 506919, 3736837; 506919, 

3736837; 506919, 3736836; 506919, 

3736835; 506919, 3736835; 506919, 

3736834; 506920, 3736834; 506920, 

3736833; 506920, 3736832; 506920, 

3736832; 506920, 3736831; 506920, 

3736831; 506920, 3736830; 506921, 

3736829; 506921, 3736829; 506921, 

3736828; 506921, 3736828; 506921, 

3736827; 506921, 3736826; 506921, 

3736826; 506921, 3736825; 506922, 

3736825; 506922, 3736824; 506922, 

3736823; 506922, 3736823; 506922, 

3736822; 506922, 3736822; 506922, 

3736821; 506922, 3736820; 506923, 

3736820; 506923, 3736819; 506923, 

3736819; 506923, 3736818; 506923, 

3736817; 506923, 3736817; 506923, 

3736816; 506923, 3736816; 506923, 

3736815; 506923, 3736814; 506923, 

3736814; 506924, 3736813; 506924, 

3736813; 506924, 3736812; 506924, 

3736811; 506924, 3736811; 506924, 

3736810; 506924, 3736810; 506924, 

3736809; 506924, 3736808; 506924, 

3736808; 506924, 3736807; 506924, 

3736807; 506924, 3736806; 506924, 

3736805; 506924, 3736805; 506924, 

3736804; 506925, 3736804; 506925, 

3736803; 506925, 3736802; 506925, 

3736802; 506925, 3736801; 506925, 

3736800; 506925, 3736800; 506925, 

3736799; 506925, 3736799; 506925, 

3736798; 506925, 3736797; 506925, 

3736797; 506925, 3736796; 506925, 

3736796; 506925, 3736795; 506925, 

3736794; 506925, 3736794; 506925, 

3736793; 506925, 3736793; 506925, 

3736792; 506925, 3736791; 506925, 

3736791; 506925, 3736790; 506925, 

3736790; 506925, 3736789; 506925, 

3736788; 506925, 3736788; 506925, 

3736787; 506925, 3736786; 506925, 

3736786; 506925, 3736785; 506925, 

3736785; 506925, 3736784; 506925, 

3736783; 506925, 3736783; 506925, 

3736782; 506925, 3736782; 506925, 

3736781; 506925, 3736780; 506925, 

3736780; 506925, 3736779; 506925, 

3736779; 506925, 3736778; 506925, 

3736777; 506925, 3736777; 506925, 

3736776; 506924, 3736776; 506924, 

3736775; 506924, 3736774; 506924, 

3736774; 506924, 3736773; 506924, 

3736772; 506924, 3736772; 506924, 

3736771; 506924, 3736771; 506924, 

3736770; 506924, 3736769; 506924, 

3736769; 506924, 3736768; 506924, 

3736768; 506924, 3736767; 506923, 

3736766; 506923, 3736766; 506923, 

3736765; 506923, 3736765; 506923, 

3736764; 506923, 3736763; 506923, 

3736763; 506923, 3736762; 506923, 

3736762; 506923, 3736761; 506923, 

3736760; 506922, 3736760; 506922, 

3736759; 506922, 3736759; 506898, 

3736782; 506816, 3736861; 506816, 

3736862; 506815, 3736862; 506815, 

3736862; 506814, 3736863; 506814, 

3736863; 506814, 3736864; 506813, 

3736864; 506813, 3736865; 506812, 

3736865; 506812, 3736865; 506811, 

3736866; 506811, 3736866; 506810, 

3736867; 506810, 3736867; 506810, 

3736867; 506809, 3736868; 506809, 

3736868; 506808, 3736869; 506808, 

3736869; 506807, 3736870; 506807, 

3736870; 506807, 3736870; 506806, 


jlentini on PROD1PC65 with RULES2
Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61995 

3736871; 506806, 3736871; 506805, 

3736872; 506805, 3736872; 506804, 

3736872; 506804, 3736873; 506804, 

3736873; 506803, 3736873; 506803, 

3736874; 506803, 3736874; 506802, 

3736875; 506802, 3736875; 506801, 

3736875; 506801, 3736876; 506800, 

3736876; 506800, 3736877; 506799, 

3736877; 506799, 3736878; 506799, 

3736878; 506798, 3736878; 506798, 

3736879; 506797, 3736879; 506797, 

3736880; 506796, 3736880; 506796, 

3736881; 506796, 3736881; 506795, 

3736881; 506795, 3736882; 506794, 

3736882; 506794, 3736883; 506793, 

3736883; 506793, 3736884; 506793, 

3736884; 506792, 3736884; 506792, 

3736885; 506791, 3736885; 506791, 

3736886; 506790, 3736886; 506790, 

3736887; 506789, 3736887; 506789, 

3736887; 506789, 3736888; 506788, 

3736888; 506788, 3736889; 506787, 

3736889; 506787, 3736890; 506786, 

3736890; 506786, 3736890; 506786, 

3736891; 506785, 3736891; 506785, 

3736892; 506784, 3736892; 506784, 

3736893; 506783, 3736893; 506783, 

3736893; 506783, 3736894; 506782, 

3736894; 506782, 3736895; 506781, 

3736895; 506781, 3736896; 506780, 

3736896; 506780, 3736896; 506780, 

3736897; 506779, 3736897; 506779, 

3736898; 506778, 3736898; 506778, 

3736899; 506777, 3736899; 506777, 

3736899; 506777, 3736900; 506776, 

3736900; 506776, 3736901; 506775, 

3736901; 506775, 3736902; 506774, 

3736902; 506774, 3736903; 506774, 

3736903; 506773, 3736903; 506773, 

3736904; 506772, 3736904; 506772, 

3736905; 506771, 3736905; 506771, 

3736906; 506771, 3736906; 506770, 

3736906; 506770, 3736907; 506769, 

3736907; 506769, 3736908; 506769, 

3736908; 506768, 3736909; 506768, 

3736909; 506767, 3736910; 506767, 

3736910; 506766, 3736910; 506766, 

3736911; 506766, 3736911; 506765, 

3736912; 506765, 3736912; 506764, 

3736913; 506764, 3736913; 506763, 

3736914; 506673, 3737003; 506686, 

3737003; thence returning to 506699, 

3737003; and land bounded by 506793, 

3736955; 506771, 3736932; 506826, 

3736879; 506834, 3736888; 506858, 

3736912; 506803, 3736965; thence 

returning to 506793, 3736955; excluding 

lands bounded by 506793, 3736955; 

506803, 3736965; 506858, 3736912; 

506834, 3736888; 506826, 3736879; 

506771, 3736932; thence returning to 

506793, 3736955. Lands bounded by 

507455, 3736348; 507444, 3736337; 

507425, 3736316; 507444, 3736297; 

507457, 3736284; 507464, 3736291; 

507488, 3736316; 507489, 3736314; 

507502, 3736303; 507515, 3736291; 

507528, 3736280; 507542, 3736269; 

507556, 3736258; 507570, 3736248; 

507575, 3736244; 507538, 3736205; 

507573, 3736173; 507557, 3736165; 

507464, 3736251; 507444, 3736269; 

507291, 3736411; 507290, 3736410; 

507275, 3736424; 506946, 3736737; 

506946, 3736737; 506946, 3736738; 

506946, 3736738; 506946, 3736739; 

506946, 3736740; 506947, 3736740; 

506947, 3736741; 506947, 3736741; 

506947, 3736742; 506947, 3736743; 

506947, 3736743; 506947, 3736744; 

506948, 3736744; 506948, 3736745; 

506948, 3736746; 506948, 3736746; 

506948, 3736747; 506948, 3736747; 

506948, 3736748; 506949, 3736749; 

506949, 3736749; 506949, 3736750; 

506949, 3736750; 506949, 3736751; 

506949, 3736751; 506949, 3736752; 

506949, 3736753; 506949, 3736753; 

506950, 3736754; 506950, 3736754; 

506950, 3736755; 506950, 3736756; 

506950, 3736756; 506950, 3736757; 

506950, 3736757; 506950, 3736758; 

506950, 3736759; 506950, 3736759; 

506951, 3736760; 506951, 3736761; 

506951, 3736761; 506951, 3736762; 

506951, 3736762; 506951, 3736763; 

506951, 3736764; 506951, 3736764; 

506951, 3736765; 506951, 3736765; 

506951, 3736766; 506951, 3736767; 

506951, 3736767; 506952, 3736768; 

506952, 3736768; 506952, 3736769; 

506952, 3736770; 506952, 3736770; 

506952, 3736771; 506952, 3736771; 

506952, 3736772; 506952, 3736773; 

506952, 3736773; 506952, 3736774; 

506952, 3736774; 506952, 3736775; 

506952, 3736776; 506952, 3736776; 

506952, 3736777; 506952, 3736777; 

506952, 3736778; 506952, 3736779; 

506952, 3736779; 506952, 3736780; 

506952, 3736781; 506953, 3736781; 

506953, 3736782; 506953, 3736782; 

506953, 3736783; 506953, 3736784; 

506953, 3736784; 506953, 3736785; 

506953, 3736785; 506953, 3736786; 

506953, 3736787; 506953, 3736787; 

506953, 3736788; 506953, 3736788; 

506953, 3736789; 506953, 3736790; 

506953, 3736790; 506953, 3736791; 

506953, 3736791; 506953, 3736792; 

506953, 3736793; 506953, 3736793; 

506953, 3736794; 506953, 3736795; 

506953, 3736795; 506953, 3736796; 

506953, 3736796; 506953, 3736797; 

506953, 3736798; 506953, 3736798; 

506952, 3736799; 506952, 3736799; 

506952, 3736800; 506952, 3736801; 

506952, 3736801; 506952, 3736802; 

506952, 3736802; 506952, 3736803; 

506952, 3736804; 506952, 3736804; 

506952, 3736805; 506952, 3736805; 

506952, 3736806; 506952, 3736807; 

506952, 3736807; 506952, 3736808; 

506952, 3736809; 506952, 3736809; 

506952, 3736810; 506952, 3736810; 

506952, 3736811; 506952, 3736812; 

506951, 3736812; 506951, 3736813; 

506951, 3736813; 506951, 3736814; 

506951, 3736815; 506951, 3736815; 

506951, 3736816; 506951, 3736816; 

506951, 3736817; 506951, 3736818; 

506951, 3736818; 506951, 3736819; 

506951, 3736819; 506950, 3736820; 

506950, 3736821; 506950, 3736821; 

506950, 3736822; 506950, 3736822; 

506950, 3736823; 506950, 3736824; 

506950, 3736824; 506950, 3736825; 

506950, 3736825; 506949, 3736826; 

506949, 3736827; 506949, 3736827; 

506949, 3736828; 506949, 3736828; 

506949, 3736829; 506949, 3736830; 

506949, 3736830; 506949, 3736831; 

506948, 3736831; 506948, 3736832; 

506948, 3736833; 506948, 3736833; 

506948, 3736834; 506948, 3736834; 

506948, 3736835; 506948, 3736836; 

506947, 3736836; 506947, 3736837; 

506947, 3736837; 506947, 3736838; 

506947, 3736839; 506947, 3736839; 

506947, 3736840; 506946, 3736840; 

506946, 3736841; 506946, 3736842; 

506946, 3736842; 506946, 3736843; 

506946, 3736843; 506945, 3736844; 

506945, 3736844; 506945, 3736845; 

506945, 3736846; 506945, 3736846; 

506945, 3736847; 506944, 3736847; 

506944, 3736848; 506944, 3736849; 

506944, 3736849; 506944, 3736850; 

506944, 3736850; 506943, 3736851; 

506943, 3736851; 506943, 3736852; 

506943, 3736853; 506943, 3736853; 

506942, 3736854; 506942, 3736854; 

506942, 3736855; 506942, 3736856; 

506942, 3736856; 506942, 3736857; 

506941, 3736857; 506941, 3736858; 

506941, 3736858; 506941, 3736859; 

506940, 3736860; 506940, 3736860; 

506940, 3736861; 506940, 3736861; 

506940, 3736862; 506939, 3736862; 

506939, 3736863; 506939, 3736864; 

506939, 3736864; 506939, 3736865; 

506938, 3736865; 506938, 3736866; 

506938, 3736866; 506938, 3736867; 

506937, 3736868; 506937, 3736868; 

506937, 3736869; 506937, 3736869; 

506937, 3736870; 506936, 3736870; 

506936, 3736871; 506936, 3736871; 

506936, 3736872; 506935, 3736873; 

506935, 3736873; 506935, 3736874; 

506935, 3736874; 506937, 3736877; 

507330, 3736478; 507328, 3736476; 

507335, 3736469; 507342, 3736462; 

507361, 3736443; 507445, 3736359; 

507455, 3736349; thence returning to 

507455, 3736348; land bounded by 

507212, 3736516; 507260, 3736471; 

507295, 3736509; 507248, 3736554; 

thence returning to 507212, 3736516; 

land bounded by 506995, 3736726; 

507050, 3736673; 507090, 3736715; 

507035, 3736768; thence returning to 

506995, 3736726. 

Excluding lands bounded by 506995, 

3736726; 507035, 3736768; 507090, 


jlentini on PROD1PC65 with RULES2
61996 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

3736715; 507050, 3736673; thence 

returning to 506995, 3736726; and 

excluding lands bounded by 507212, 

3736516; 507248, 3736554; 507295, 

3736509; 507260, 3736471; thence 

returning to 507212, 3736516. 

Continuing to lands bounded by 

508362, 3736111; 508440, 3736111; 

508760, 3736112; 508881, 3736112; 

508941, 3736112; 509080, 3736113; 

509081, 3736113; 509575, 3736114; 

509871, 3736115; 509871, 3736115; 

509944, 3736115; 510063, 3736116; 

510273, 3735945; 510317, 3735910; 

510333, 3735897; 510422, 3735825; 

510289, 3735824; 510221, 3735824; 

510213, 3735824; 510211, 3735824; 

510086, 3735829; 510086, 3735829; 

509900, 3735836; 509900, 3735836; 

509892, 3735836; 509892, 3735820; 

509873, 3735819; 509873, 3735798; 

509870, 3735798; 509870, 3735804; 

509870, 3735814; 509870, 3735814; 

509284, 3735812; 509269, 3735812; 

509247, 3735812; 509244, 3735836; 

509168, 3735867; 509168, 3735868; 

509096, 3735896; 509101, 3735942; 

509091, 3735948; 509091, 3735948; 

509073, 3735958; 509073, 3735963; 

509073, 3735963; 509069, 3735963; 

509063, 3735963; 509063, 3735963; 

508979, 3735964; 508979, 3735962; 

508979, 3735962; 508979, 3735962; 

508947, 3735962; 508881, 3735962; 

508791, 3735962; 508761, 3735961; 

508761, 3735954; 508761, 3735954; 

508761, 3735954; 508746, 3735954; 

508746, 3735903; 508577, 3735903; 

508577, 3735900; 508574, 3735900; 

508550, 3735900; 508519, 3735960; 

508519, 3735960; 508364, 3735959; 

thence returning to 508362, 3736111; 

land bounded by 510650, 3735641; 

510696, 3735603; 510799, 3735520; 

510915, 3735426; 510926, 3735417; 

510928, 3735416; 510993, 3735363; 

511422, 3735015; 511452, 3734991; 

511473, 3734974; 511509, 3734945; 

511892, 3734636; 511916, 3734616; 

511922, 3734611; 511953, 3734586; 

512009, 3734541; 512135, 3734542; 

512485, 3734544; 512498, 3734541; 

512603, 3734481; 512703, 3734455; 

512703, 3734455; 513047, 3734367; 

513047, 3734367; 513047, 3734336; 

513047, 3734147; 513043, 3734147; 

512708, 3734144; 512708, 3734144; 

512710, 3734050; 512711, 3733985; 

512693, 3733986; 512682, 3733994; 

512682, 3733994; 512635, 3733975; 

512607, 3733964; 512607, 3733964; 

512565, 3733952; 512514, 3733929; 

512326, 3734025; 512316, 3734058; 

512316, 3734059; 512314, 3734065; 

512275, 3734095; 512269, 3734105; 

512246, 3734119; 512238, 3734124; 

512137, 3734202; 512115, 3734220; 

512093, 3734238; 512080, 3734248; 

512050, 3734273; 512048, 3734274; 

512046, 3734276; 512033, 3734285; 

512016, 3734298; 511976, 3734328; 

511909, 3734343; 511891, 3734346; 

511874, 3734350; 511866, 3734356; 

511857, 3734362; 511811, 3734398; 

511802, 3734405; 511757, 3734444; 

511729, 3734457; 511727, 3734458; 

511710, 3734461; 511710, 3734461; 

511627, 3734472; 511617, 3734476; 

511607, 3734479; 511589, 3734485; 

511579, 3734488; 511527, 3734534; 

511518, 3734543; 511509, 3734552; 

511509, 3734614; 511509, 3734614; 

511510, 3734614; 511563, 3734668; 

511618, 3734736; 511594, 3734736; 

511607, 3734753; 511610, 3734768; 

511539, 3734839; 511458, 3734884; 

511369, 3734910; 511196, 3735014; 

511196, 3735014; 511178, 3735025; 

510900, 3735258; 510900, 3735258; 

510713, 3735415; 510713, 3735415; 

510696, 3735429; 510696, 3735429; 

510670, 3735451; 510660, 3735470; 

510638, 3735603; 510638, 3735603; 

510645, 3735624; 510649, 3735639; 

510650, 3735640; 510650, 3735640; 

thence returning to 510650, 3735641; 

and land bounded by 512090, 3734474; 

512090, 3734474; 512093, 3734472; 

512104, 3734464; 512113, 3734456; 

512130, 3734464; 512130, 3734464; 

512118, 3734488; 512104, 3734481; 

thence returning to 512090, 3734474; 

excluding lands bounded by 512090, 

3734474; 512104, 3734481; 512118, 

3734488; 512130, 3734464; 512130, 

3734464; 512113, 3734456; 512104, 

3734464; 512093, 3734472; thence 

returning to 512090, 3734474. 

(ii) Note: Map of Unit 3—San Jacinto 

River Wash follows: 

BILLING CODE 4310–55–P 


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Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61997 

BILLING CODE 4310–55–C (9) Unit 4: Cable Creek Wash, San 

Bernardino County, California. From 

USGS 1:24,000 quadrangles San 


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61998 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

Bernardino South, Redlands, Yucaipa, 

and Harrison Mountain. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 

(NAD83) coordinates (E, N): 463488, 

3787583; 463744, 3787580; 463715, 

3787533; 463646, 3787536; 463616, 

3787529; 463602, 3787504; 463599, 

3787437; 463618, 3787313; 463628, 

3787249; 463609, 3787215; 463602, 

3787194; 463603, 3787154; 463614, 

3787118; 463603, 3787103; 463595, 

3787091; 463627, 3787057; 463664, 

3787028; 463708, 3786998; 463756, 

3786932; 463786, 3786880; 463793, 

3786839; 463794, 3786821; 463784, 

3786780; 463795, 3786754; 463860, 

3786697; 463911, 3786653; 463917, 

3786638; 463815, 3786610; 463941, 

3786497; 464028, 3786547; 463939, 

3786634; 463978, 3786682; 464026, 

3786745; 464072, 3786789; 464168, 

3786891; 464206, 3786889; 464218, 

3786834; 464300, 3786801; 464408, 

3786892; 464461, 3787007; 464358, 

3787052; 464461, 3787180; 464486, 

3787180; 464593, 3787180; 464597, 

3787136; 464564, 3787107; 464544, 

3787091; 464532, 3787068; 464516, 

3787050; 464511, 3787015; 464492, 

3786982; 464476, 3786941; 464451, 

3786888; 464388, 3786769; 464323, 

3786685; 464274, 3786567; 464254, 

3786446; 464249, 3786395; 464263, 

3786319; 464278, 3786278; 464306, 

3786248; 464392, 3786188; 464456, 

3786161; 464489, 3786137; 464533, 

3786098; 464591, 3786071; 464645, 

3786052; 464679, 3786064; 464726, 

3786044; 464761, 3786076; 464772, 

3786114; 464791, 3786136; 464812, 

3786136; 464835, 3786125; 464847, 

3786083; 464865, 3786044; 464865, 

3785996; 464865, 3785921; 464877, 

3785905; 464905, 3785900; 464923, 

3785893; 464941, 3785900; 464955, 

3785924; 464979, 3785921; 465000, 

3785896; 465015, 3785870; 465018, 

3785842; 465022, 3785810; 465053, 

3785793; 465073, 3785792; 465091, 

3785801; 465114, 3785822; 465134, 

3785833; 465164, 3785832; 465181, 

3785804; 465177, 3785769; 465160, 

3785735; 465155, 3785714; 465164, 

3785694; 465194, 3785694; 465219, 

3785697; 465252, 3785646; 465302, 

3785573; 465367, 3785483; 465411, 

3785453; 465445, 3785409; 465476, 

3785388; 465510, 3785371; 465516, 

3785275; 465519, 3785246; 465552, 

3785201; 465604, 3785115; 465638, 

3785047; 465664, 3784997; 465730, 

3784959; 465843, 3784900; 465846, 

3784898; 465883, 3784878; 465877, 

3784853; 465876, 3784809; 465885, 

3784777; 465891, 3784739; 465886, 

3784704; 465879, 3784669; 465871, 

3784651; 465871, 3784616; 465877, 

3784572; 465826, 3784476; 465801, 

3784496; 465792, 3784481; 465784, 

3784509; 465769, 3784522; 465716, 

3784545; 465697, 3784555; 465686, 

3784577; 465653, 3784588; 465617, 

3784614; 465614, 3784634; 465580, 

3784669; 465512, 3784536; 464473, 

3785523; 463196, 3786751; 463299, 

3787054; 463331, 3787013; 463396, 

3786974; 463433, 3786983; 463446, 

3787022; 463455, 3787089; 463482, 

3787091; 463479, 3787116; 463475, 

3787141; 463467, 3787167; 463467, 

3787190; 463459, 3787216; 463438, 

3787238; 463417, 3787259; 463409, 

3787278; 463409, 3787299; 463407, 

3787321; 463399, 3787341; 463398, 

3787362; 463412, 3787387; 463433, 

3787415; 463454, 3787435; 463471, 

3787466; 463486, 3787510; 463487, 

3787543; thence returning to 463488, 

3787583. 

(ii) Note: Map of Unit 4—Cable Creek 

Wash follows: 

BILLING CODE 4310–55–P 


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Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 61999 

BILLING CODE 4310–55–C 


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62000 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

(10) Unit 5: Bautista Creek, Riverside 

County, California. From USGS 1:24,000 

quadrangle Blackburn Canyon. 

(i) Land bounded by the following 

Universal Transverse Mercator (UTM) 

North American Datum of 1983 

(NAD83) coordinates (E, N): 514568, 

3727407; 514575, 3727407; 514581, 

3727407; 514588, 3727407; 514593, 

3727407; 514594, 3727400; 514604, 

3727317; 514613, 3727237; 514630, 

3727172; 514641, 3727149; 514659, 

3727133; 514687, 3727111; 514735, 

3727089; 514787, 3727047; 514817, 

3727014; 514834, 3726971; 514834, 

3726938; 514828, 3726894; 514828, 

3726867; 514838, 3726842; 514860, 

3726822; 514876, 3726765; 514896, 

3726705; 514920, 3726656; 514955, 

3726596; 514978, 3726573; 515017, 

3726548; 515065, 3726527; 515087, 

3726515; 515119, 3726495; 515161, 

3726465; 515184, 3726451; 515225, 

3726430; 515263, 3726401; 515298, 

3726401; 515301, 3726391; 515279, 

3726357; 515267, 3726325; 515267, 

3726280; 515279, 3726226; 515279, 

3726190; 515279, 3726148; 515291, 

3726115; 515316, 3726054; 515344, 

3726000; 515395, 3725932; 515471, 

3725841; 515510, 3725760; 515536, 

3725696; 515565, 3725637; 515601, 

3725594; 515615, 3725497; 515617, 

3725406; 515624, 3725301; 515632, 

3725267; 515676, 3725203; 515724, 

3725116; 515794, 3724968; 515822, 

3724940; 515842, 3724928; 515883, 

3724925; 515912, 3724923; 515922, 

3724914; 515953, 3724887; 515979, 

3724862; 515991, 3724838; 516002, 

3724788; 516020, 3724736; 516033, 

3724701; 516052, 3724666; 516079, 

3724648; 516103, 3724637; 516140, 

3724630; 516170, 3724625; 516207, 

3724628; 516237, 3724623; 516270, 

3724587; 516307, 3724553; 516352, 

3724530; 516391, 3724529; 516427, 

3724532; 516437, 3724536; 516410, 

3724511; 516385, 3724448; 516328, 

3724429; 516147, 3724514; 516067, 

3724496; 515959, 3724546; 515962, 

3724584; 515750, 3724813; 515546, 

3725000; 515448, 3725089; 515461, 

3725175; 515486, 3725210; 515483, 

3725372; 515505, 3725454; 515489, 

3725572; 515432, 3725718; 515343, 

3725759; 515366, 3725854; 515280, 

3725966; 515238, 3726038; 515175, 

3726130; 515172, 3726264; 515162, 

3726324; 515112, 3726394; 515023, 

3726438; 514940, 3726499; 514877, 

3726578; 514800, 3726705; 514752, 

3726802; 514756, 3726934; 514572, 

3727048; 514537, 3727207; 514480, 

3727369; 514463, 3727407; 514529, 

3727407; thence returning to 514568, 

3727407. 

(ii) Note: Map of Unit 5—Bautista 

Creek follows: 


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Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 62001 


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62002 Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / Rules and Regulations 

* * * * * Dated: October 1, 2008. 

Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. E8–23515 Filed 10–16–08; 8:45 am] 

BILLING CODE 4310–55–C 


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