[Federal Register Volume 66, Number 26 (Wednesday, February 7, 2001)]
[Rules and Regulations]
[Pages 9233-9246]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3126]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG27


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Morro Shoulderband Snail 
(Helminthoglypta walkeriana)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), designate 
critical habitat for the Morro shoulderband snail (Helminthoglypta 
walkeriana) pursuant to the Endangered Species Act of 1973, as amended 
(Act). The Morro shoulderband snail is listed as endangered under the 
Act. A total of approximately 1,039 hectares (2,566 acres) fall within 
the boundaries of designated critical habitat. Critical habitat for the 
Morro shoulderband snail is located in San Luis Obispo County, 
California.
    Section 7 of the Act requires Federal agencies to ensure that 
actions they authorize, fund, or carry out are not likely to destroy or 
adversely modify designated critical habitat. As required by section 4 
of the Act, we considered economic and other relevant impacts prior to 
making a final decision on what areas to designate as critical habitat.

DATES: This final rule is effective March 9, 2001.

ADDRESSES: The complete administrative record for this rule is on file 
at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife 
Office, 2493 Portola Road, Suite B, California 93003. The complete file 
for this rule is available for public inspection, by appointment, 
during normal business hours at the above address.

FOR FURTHER INFORMATION CONTACT: Diane Noda, Ventura Fish and Wildlife 
Office, at the above address (telephone 805/644-1766; facsimile 805/
644-3958).

SUPPLEMENTARY INFORMATION:

Background

    The Morro shoulderband snail was first described as Helix 
walkeriana by Hemphill (1911) based on collections made ``near Morro, 
California.'' He also described a subspecies, based on sculptural 
features of the shell, Helix walkeriana, Helix var. morroensis, that 
was collected ``near San Luis Obispo City'' (1985). The Morro 
shoulderband snail is also commonly known as the banded dune snail and 
belongs to the class Gastropoda and family Helminthoglyptidae.
    The shell of the Morro shoulderband snail has 5-6 whorls. Its 
dimensions are 18 to 29 millimeters (mm) (0.7 to 1.1 inches (in.)) in 
diameter and 14 to 25 mm (0.6 to 1.0 in.) in height. The Morro 
shoulderband snail can be distinguished from the Big Sur shoulderband 
snail (Helminthoglypta umbilicata), another native snail in the same 
area, by its more globose (globe-shaped) shell shape and presence of 
incised (deeply cut) spiral grooves (Roth 1985). The Morro shoulderband 
snail has spiral striae (longitudinal ridges) as well as transverse 
striae giving it a ``checkerboard'' appearance. Further, there are 
raised papillae (bumps) at the intersections of some of the striae. The 
shell of the Big Sur shoulderband snail tends to be flatter and 
shinier, and rarely has spiral striae. It also has malleations (dents) 
and tends to be darker in color. The Morro shoulderband's spire is low-
domed, and half or more of the umbilicus (the cavity in the center of 
the base of a spiral shell that is surrounded by the whorls) is covered 
by the apertural (small opening) lip (Roth 1985). The brown garden 
snail (Helix aspersa) also occurs in Los Osos with the Morro 
shoulderband snail and has a marbled pattern on its shell, whereas the 
Morro shoulderband snail has one narrow dark brown spiral band on the 
shoulder.
    The Morro shoulderband snail is found only in western San Luis 
Obispo County. At the time of its addition to the List of Endangered 
and Threatened Wildlife on December 15, 1994 (59 FR 64613), the Morro 
shoulderband snail was known to be distributed near Morro Bay. Its 
currently known range includes areas south of Morro Bay, west of Los 
Osos Creek and north of Hazard Canyon. Historically, the species has 
also been reported near the city of San Luis Obispo (type locality for 
``morroensis'') and south of Cayucos (Roth 1985).
    The Morro shoulderband snail occurs in coastal dune and scrub 
communities

[[Page 9234]]

and maritime chaparral. Through most of its range, the dominant shrub 
associated with the snail's habitat is mock heather (Ericameria 
ericoides). Other prominent shrub and succulent species are buckwheat 
(Eriogonum parvifolium), eriastrum (Eriastrum densifolium), chamisso 
lupine (Lupinus chamissonis), dudleya (Dudleya sp.), and in more inland 
locations, California sagebrush (Artemisia californica), coyote brush 
(Baccharis pilularis), and black sage (Salvia mellifera) (Roth 1985).
    Away from the immediate coast, immature scrub in earlier 
successional stages may offer more favorable shelter sites than mature 
stands of coastal dune scrub. The immature shrubs provide canopy 
shelter for the snail, whereas the lower limbs of larger older shrubs 
may be too far off the ground to offer good shelter. In addition, 
mature stands produce twiggy litter that is low in food value (Roth 
1985).
    No studies or documented observations exist on the feeding 
behaviors of the Morro shoulderband snail. Hill (1974) suggested that 
the snail probably feeds on the fungal mycelia (webs or mats of non-
reproductive fungal strands) growing on decaying plant litter. The 
Morro shoulderband snail is not a garden pest and is essentially 
harmless to gardens (Chambers 1997).
    Sarcophagid flies (family of flies that rely on a host to complete 
its life-cycle) have been observed to parasitize the Morro shoulderband 
snail. Empty puparia (``cases'' left behind by adult flies emerging 
from pupae) were observed in empty snail shells by Hill (1974), Roth 
(1985), and Kim Touneh (Service, pers. comm. 1997). Hill (1974) and 
Roth (1985) suggested that mortality from infestations of larvae of 
this parasitic fly often occurs before the snails reach reproductive 
maturity. The flies may have a significant impact on the population of 
the snail (Roth 1985). Seasonal drought and/or heat may contribute to 
the snail's egg mortality (Roth 1985). Based on shell examination, Roth 
(1985) also suggested that rodents may prey on the snail.
    The Morro shoulderband snail is threatened by destruction of its 
habitat due to increasing development and by degradation of its habitat 
due to invasion of nonnative plant species (e.g., veldt grass (Ehrharta 
calycina), structural changes to its habitat due to maturing of dune 
vegetation, and recreational use (e.g., heavy off-highway activity). In 
addition to the known threats, possible threats to the snail include 
competition for resources with the nonnative brown garden snail 
(although no assessment has been made of possible dietary overlap 
between the species); the small and isolated nature of the remaining 
populations; the use of pesticides (including snail and slug baits); 
and the introduction of nonnative predatory snails, such as Oxycheilus 
sp.

Previous Federal Action

    We entered into a contract with the Sierra Club Foundation, San 
Francisco, California, to investigate the status of California land 
snails. A final report dated August 25, 1975, contained data indicating 
that several of the snails studied could be considered candidates for 
listing as threatened or endangered species. On April 28, 1976, we 
proposed endangered or threatened status for 32 land snails in the 
Federal Register (41 FR 17742). This proposal included the Morro 
shoulderband snail (under the common name ``banded dune snail'') as 
endangered. However, we withdrew the proposed rulemaking on December 
10, 1979 (44 FR 70796), because of the 1978 amendments to the Act, 
which required the withdrawal of proposals over 2 years old.
    In 1984, we undertook a status review of the snail, which ended in 
a report by Roth (1985). Based on that report, we included the Morro 
shoulderband snail as a category one species in the Animal Notices of 
Review of May 22, 1984 (49 FR 21664); January 6, 1989 (54 FR 554); and 
November 21, 1991 (56 FR 58820). A category one species is one on which 
we have sufficient information to support a listing.
    On December 23, 1991, we published a proposed rule in the Federal 
Register (56 FR 66400) to list five plants and the Morro shoulderband 
snail as endangered. We reopened the comment period on June 8, 1992 (57 
FR 24221). On December 15, 1994, we published a final rule adding the 
Morro shoulderband snail and four plants to the List of Endangered and 
Threatened Wildlife as endangered species (59 FR 64613). We published a 
final recovery plan in September 1998.
    At the time of listing, we concluded that designation of critical 
habitat for the Morro shoulderband snail was not prudent because such 
designation would not benefit the species. We were also concerned that 
critical habitat designation would likely result in an increased threat 
of vandalism or collection of the species. However, we have determined 
that instances of vandalism have not increased since the listing of the 
Morro shoulderband snail, and the threats to this species and its 
habitat from specific instances of collection and habitat destruction 
do not outweigh the broader educational, potential regulatory, and 
other possible benefits that designation of critical habitat would 
provide for this species. A designation of critical habitat can provide 
educational benefits by formally identifying those areas essential to 
the conservation of the species. These areas were already identified in 
the recovery plan as the focus of our recovery efforts for the Morro 
shoulderband snail. Therefore, we conclude that the benefits of 
designating critical habitat on lands essential for the conservation of 
the Morro shoulderband snail will not increase incidences of vandalism 
above current levels for this species.
    On March 4, 1999, the Southwest Center for Biological Diversity, 
the Center for Biological Diversity, and Christians Caring for Creation 
filed a lawsuit in the Northern District of California against the 
Service for failure to designate critical habitat for seven species 
including the Morro shoulderband snail. On November 5, 1999, the 
district court dismissed the plaintiffs' lawsuit pursuant to a 
settlement agreement entered into by the parties. Under the settlement 
agreement, we agreed to submit a proposed determination of critical 
habitat for the Morro shoulderband snail by July 1, 2000, and to submit 
a final designation to the Federal Register by February 1, 2001.
    The proposed rule to designate critical habitat for the Morro 
shoulderband snail was published in the Federal Register on July 12, 
2000 (65 FR 42962). A total of approximately 1,039 hectares (ha) (2,566 
acres (ac)) was proposed as critical habitat for the Morro shoulderband 
snail in San Luis Obispo County, California. The comment period was 
open until September 11, 2000. On November 21, 2000, we published a 
notice (65 FR 69896) announcing the reopening of the comment period and 
a notice of availability of the draft economic analysis on the proposed 
determination. The comment period was open an additional 16 days, until 
December 6, 2000. Publication of this final rule is consistent with the 
settlement agreement.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as: (i) The 
specific areas within the geographic area occupied by a species, at the 
time it is listed in accordance with the Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) that may require special management considerations 
or protection; and (ii) specific areas outside the geographic area 
occupied by

[[Page 9235]]

a species at the time it is listed, upon a determination that such 
areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered species or a threatened species to the 
point at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 also requires conferences on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. In our regulations at 50 CFR 402.02, 
we define destruction or adverse modification as ``* * * the direct or 
indirect alteration that appreciably diminishes the value of critical 
habitat for both the survival and recovery of a listed species. Such 
alterations include, but are not limited to, alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' Aside from the 
added protection that may be provided under section 7, the Act does not 
provide other forms of protection to lands designated as critical 
habitat.
    Because consultation under section 7 of the Act does not apply to 
activities on private or other non-Federal lands that do not involve a 
Federal nexus, critical habitat designation would not afford any 
additional protections under the Act against such activities.
    In order to be included in a critical habitat designation, habitat 
must first be ``essential to the conservation of the species.'' 
Critical habitat designations identify, to the extent known using the 
best scientific and commercial data available, habitat areas that 
provide essential life cycle needs of the species (i.e., areas on which 
are found the primary constituent elements defined at 50 CFR 
424.12(b)).
    Section 4 requires that we designate critical habitat at the time 
of listing and based on what we know at the time of the designation. 
When we designate critical habitat at the time of listing or under 
short court-ordered deadlines, we will often not have sufficient 
information to identify all areas of critical habitat. We are required, 
nevertheless, to make a decision and thus must base our designations on 
what, at the time of designation, we know to be critical habitat.
    Within the geographic area occupied by the species, we will 
designate only areas currently known to be essential. Essential areas 
should already have the features and habitat characteristics that are 
necessary to sustain the species. We will not speculate about what 
areas might be found to be essential if better information became 
available, or what areas may become essential over time. If the 
information available at the time of designation does not show that an 
area provides essential life cycle needs of the species, then the area 
should not be included in the critical habitat designation. Within the 
geographic area occupied by the species, we will not designate areas 
that do not now have the primary constituent elements, as defined at 50 
CFR 424.12(b), which provide essential life cycle needs of the species.
    Our regulations state that, ``The Secretary shall designate as 
critical habitat areas outside the geographic area presently occupied 
by the 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 available 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 in areas outside the 
geographic area occupied by the species.
    Our Policy on Information Standards Under the Endangered Species 
Act, published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to 
ensure that our decisions represent the best scientific and commercial 
data available. It requires our biologists, to the extent consistent 
with the Act, and with the use of the best scientific and commercial 
data available, to use primary and original sources of information as 
the basis for recommendations to designate critical habitat. When 
determining which areas are critical habitat, a primary source of 
information should be the listing package for the species. Additional 
information may be obtained from a recovery plan, articles in peer-
reviewed journals, conservation plans developed by States and counties, 
scientific status surveys and studies, and biological assessments or 
other unpublished materials (i.e., gray literature).
    Habitat is often dynamic, and populations may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that may 
eventually be determined to be necessary for the recovery of the 
species. For these reasons, all should understand that critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not be required for recovery. Areas outside the 
critical habitat designation will continue to be subject to 
conservation actions that may be implemented under section 7(a)(1) and 
to the regulatory protections afforded by the section 7(a)(2) jeopardy 
standard and the section 9 take prohibition, as determined on the basis 
of the best available information at the time of the action. We 
specifically anticipate that federally funded or assisted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by the Act and regulations (section 4(b)(2) and 50 CFR 
424.12), we used the best scientific information available to determine 
areas that contain the physical and biological features that are 
essential for the survival and recovery of the Morro shoulderband 
snail. This information included data from research and survey 
observations published in peer-reviewed articles, recovery criteria 
outlined in the recovery plan, regional Geographic Information System 
(GIS) vegetation coverages, and data collected from reports submitted 
by biologists holding section 10(a)(1)(A) recovery permits.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act, and regulations 
at 50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to consider those physical and biological 
features (primary constituent elements) that are essential to the 
conservation of the species. These include, but are not limited to, 
space for individual and population growth and for normal behavior; 
food, water, or other nutritional or physiological requirements; cover 
or shelter; sites for breeding and reproduction; and habitats that are 
protected from disturbance or are representative of the historic and 
ecological distributions of a species.
    The primary constituent elements of critical habitat for the Morro

[[Page 9236]]

shoulderband snail are those habitat components that are essential for 
the primary biological needs of foraging, sheltering, reproduction, and 
dispersal. The areas we are proposing to designate as critical habitat 
provide these primary constituent elements, which are: sand or sandy 
soils needed for reproduction; a slope not greater than 10 percent to 
facilitate movement of individuals; and the presence of native coastal 
dune scrub vegetation. This vegetation is typically, but not 
exclusively, represented by mock heather, buckwheat, eriastrum, 
chamisso lupine, dudleya, and in more inland locations, California 
sagebrush, coyote brush, and black sage. Some of the habitat in the 
critical habitat units could be improved through habitat rehabilitation 
or improved management (e.g., removal of nonnative species).

Criteria Used To Identify Critical Habitat

    In an effort to map areas that have the features essential to the 
conservation of the species, we used data on known Morro shoulderband 
snail locations and conservation planning areas that were identified in 
the final recovery plan (Service 1998) as essential for the recovery of 
the species. All of the critical habitat areas are occupied. Given the 
habitat-related threats to the species discussed above and in more 
detail in the final rule (59 FR 64613), we believe the areas we are 
designating as critical habitat may need special management 
considerations or protection.
    In defining critical habitat boundaries, we made an effort to avoid 
developed areas such as towns and other similar lands, that are 
unlikely to contain primary constituent elements essential for Morro 
shoulderband snail conservation. Areas of existing features and 
structures within the unit boundaries, such as buildings, roads, 
aqueducts, railroads, airports, and paved areas, will not contain one 
or more of the primary constituent elements. Federal actions limited to 
these areas, therefore, would not trigger a section 7 consultation, 
unless they affect the species and/or the primary constituent elements 
in adjacent critical habitat.
    We also considered the existing status of lands in designating 
areas as critical habitat. The Morro shoulderband snail is known to 
occur on State, county, and private lands. Section 10(a)(1)(B) of the 
Act authorizes us to issue permits for the take of listed species 
incidental to otherwise lawful activities. An incidental take permit 
application must be supported by a habitat conservation plan (HCP) that 
identifies conservation measures that the permittee agrees to implement 
for the species to minimize and mitigate the impacts of the requested 
incidental take. Non-Federal public lands and private lands that are 
covered by an existing operative HCP and executed implementation 
agreement (IA) for the Morro shoulderband snail under section 
10(a)(1)(B) of the Act are not designated as critical habitat because 
the benefits of exclusion outweigh the benefits of inclusion as 
discussed in section 4(b)(2) of the Act.

Critical Habitat Designation

    The approximate area encompassing designated critical habitat by 
land ownership is shown in Table 1. Designated critical habitat 
includes Morro shoulderband snail habitat throughout the species' 
existing range in the United States (i.e., San Luis Obispo County, 
California). Lands designated are under private, State, and local 
ownership. The species is not known to occur or to have historically 
occurred on Federal lands. Lands designated as critical habitat have 
been divided into three Critical Habitat Units. All of the designated 
areas need special management, and the final recovery plan for the 
snail provides guidance on management of these areas for the snail. To 
recover, the snail needs habitat that is intact and relatively 
unfragmented by urban development, and that is secure from threats of 
non-native snail predation, pesticides, recreational use, and invasion 
of non-native plants. Special management needs include controlling non-
native pest plants to maintain intact native habitat, restoring and 
maintaining connectivity among isolated populations to preserve genetic 
diversity, controlling pesticides in snail areas, controlling non-
native predatory snails, and restoring native plant communities.
    Brief descriptions of each unit, our reasons for designating it as 
critical habitat, are presented below.

       Table 1.--Approximate Critical Habitat in Hectares (ha) and Acres (ac) by County and Land Ownership
 [Area estimates reflect critical habitat unit boundaries. Not all the areas within those broad boundaries, such
  as cities, towns, or other developments, will be considered critical habitat since these areas do not contain
                 habitat considered essential to the survival of the Morro shoulderband snail.]
----------------------------------------------------------------------------------------------------------------
            County                  Federal land      Local/State land      Private land            Total
----------------------------------------------------------------------------------------------------------------
San Luis Obispo...............  N/A                  790 ha              249 ha              1,039 ha
                                                     (1,951 ac)          (615 ac)            (2,566 ac)
----------------------------------------------------------------------------------------------------------------

Unit 1: Morro Spit and West Pecho
    Unit 1 encompasses areas managed by Montana de Oro State Park 
(Dunes Natural Preserve) and the City of Morro Bay (north end of spit), 
including the length of the spit and the foredune areas extending south 
toward Hazard Canyon. The unit provides dune scrub habitat for the 
populations of Morro shoulderband snail that live there. The spit's 
windward side and its north end are non-vegetated; patches of 
vegetation occur along its leeward side on Morro Bay. The West Pecho 
portion of this unit lies to the east of the Morro Spit Conservation 
Planning Area and is bounded on the east by Pecho Road and the 
community of Los Osos. It extends north to the Bay and south to Hazard 
Canyon. Elevations range from sea level on the Bay to about 75 meters 
(m) (250 feet (ft)) along its southeastern edge. Vegetation 
associations include coastal dune scrub, with coastal sage scrub closer 
to Hazard Canyon.
    The California Department of Fish and Game owns an ecological 
reserve in this unit, which is managed cooperatively with adjoining 
State Park property. Privately-owned lands occur to the northeast in 
the community of Los Osos, but private lands are not included in this 
unit and are not reflected in the approximate area of the critical 
habitat designated. Approximately 676 ha (1,670 ac) occur on State 
land, and 65 ha (160 ac) occur on local government land.
    The protection and recovery of this unit is essential to maintain 
the genetic diversity of the Morro shoulderband snail. It contains 
several significant, viable populations, and provided suitable habitat 
conditions are maintained through proper

[[Page 9237]]

management, this unit will provide for connectivity and dispersal 
between populations, thereby maintaining genetic diversity over the 
long-term.
Unit 2: South Los Osos
    Unit 2 is bounded on the north and east by residential development 
in the community of Los Osos and agricultural fields. The area on the 
lower slopes of the Irish Hills, where the vegetation is composed of 
maritime chaparral, is considered essential to the conservation of the 
Morro shoulderband snail. We designated approximately 129 ha (320 ac) 
of this area as critical habitat. This area is currently privately 
owned. The California Department of Fish and Game is expected to 
acquire the 204 acre Morro Palisades property within this unit early in 
2001.
    This area contains a core population that can be expanded, and 
threats to the species reduced, with appropriate management. Special 
management considerations are necessary in this unit for the protection 
and recovery of this population, and these are not currently in place. 
If suitable habitat conditions are maintained through proper 
management, this unit will provide the ecological conditions for which 
this snail is found.
Unit 3: Northeast Los Osos
    The Northeast Los Osos Critical Habitat Unit includes undeveloped 
areas between Los Osos Creek and Baywood Park and is divided by South 
Bay Boulevard. Its elevation range is from sea level to about 30 m (100 
ft). Vegetation is dominated by variants of coastal sage and dune 
scrub, with scattered stands of manzanita (Arctostaphylos spp.) and 
coast live oak (Quercus agrifolia). The Morro shoulderband snail is 
known to occupy this unit. This unit includes the State-and county-
owned Elfin Forest Preserve, portions of Morro Bay State Park, and 
privately owned lands. The Los Osos Center, Hord Residential, and MCI/
Worldcom HCPs fall within the unit boundaries, but areas where 
incidental take of the Morro shoulderband snail has been authorized are 
not being designated for critical habitat. Approximately 49 ha (121 ac) 
of designated critical habitat in this unit occur on State land, and 
119 ha (295 ac) occur on private land. The Bureau of Land Management is 
expected to acquire 5 acres of privately owned land within this unit 
early in 2001.
    This unit supports the most northern intact habitat for the snail. 
The protection and recovery of this unit is essential to maintain the 
genetic variability of the species and the full range of ecological 
setting within which the snail is found. Special management 
considerations are necessary in this unit for the protection and 
recovery of this population, and these are not currently in place. The 
unit has favorable habitat conditions for the expansion and persistence 
of the core population, and with the reduction of threats through 
appropriate management, this area should support a larger Morro 
shoulderband snail population, hence contribute to the recovery of the 
species.

Effects of Critical Habitat Designation

Section 7  Consultation

    Section 7(a) 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 threatened or 
endangered species, or result in the destruction or adverse 
modification of critical habitat to the extent that the action 
appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. When multiple units of critical 
habitat are designated, each unit may serve as the basis of a jeopardy 
analysis if protection of different facets of the species' life cycle 
or its distribution are essential to the species as a whole for both 
its survival and recovery. Individuals, organizations, States, local 
governments, and other non-Federal entities are affected by the 
designation of critical habitat only if their actions occur on Federal 
lands, require a Federal permit, license, or other authorization, or 
involve Federal funding. In 50 CFR 402.01 ``jeopardize the continued 
existence'' (of a species) is defined as engaging in an appreciable 
reduction in the likelihood of survival and recovery of a listed 
species. ``Destruction or adverse modification'' (of critical habitat) 
is defined as a direct or indirect alteration that appreciably 
diminishes the value of critical habitat for the survival and recovery 
of the listed species for which critical habitat was designated. Thus, 
the definitions of ``jeopardy'' to the species and ``adverse 
modification'' of critical habitat are nearly identical.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened, and with respect to its 
critical habitat, if any is designated or proposed. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) requires Federal agencies 
to confer with us on any action that is likely to jeopardize the 
continued existence of a proposed species or result in destruction or 
adverse modification of proposed critical habitat. Conference reports 
provide conservation recommendations to assist the agency in 
eliminating conflicts that may be caused by the proposed action. The 
conservation recommendations in a conference report are advisory. If a 
species is listed or critical habitat is designated, section 7(a)(2) 
requires Federal agencies to ensure that activities they authorize, 
fund, or carry out are not likely to jeopardize the continued existence 
of such a species or to destroy or adversely modify its critical 
habitat. If a Federal action may affect a listed species or its 
critical habitat, the responsible Federal agency (action agency) must 
enter into consultation with us. Through this consultation, we would 
ensure that the permitted actions do not adversely modify critical 
habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. Reasonable and prudent alternatives 
are defined at 50 CFR 402.02 as alternative actions identified during 
consultation that can be implemented in a manner consistent with the 
intended purpose of the action, that are consistent with the scope of 
the Federal agency's legal authority and jurisdiction, that are 
economically and technologically feasible, and that the Director 
believes would avoid resulting in the destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated, and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conferencing with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat, and they have retained discretionary involvement in 
the action. Further, some Federal agencies may have conferenced with us 
on proposed critical habitat. We may adopt the

[[Page 9238]]

formal conference report as the biological opinion when critical 
habitat is designated, if no significant new information or changes in 
the action alter the content of the opinion (see 50 CFR 402.10(d)).
    Activities on private or State lands requiring a permit from a 
Federal agency, such as a permit from the U.S. Army Corps of Engineers 
(Corps) under section 404 of the Clean Water Act or a section 
10(a)(1)(B) permit from the Service, or some other Federal action, 
including funding (e.g., from the Federal Highway Administration (FHA), 
Environmental Protection Agency (EPA), or Federal Emergency Management 
Agency (FEMA)), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat, and actions on non-Federal lands that are not 
federally funded, authorized, or permitted, do not require section 7 
consultation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that 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 require that a section 
7 consultation be conducted include, but are not limited to:
    (1) Activities that result in excavation, mechanized land clearing, 
or uncontrolled burning of coastal dune scrub vegetation; and
    (2) Activities that could lead to the introduction of exotic 
species into occupied Morro shoulderband snail habitat.
    Activities that may destroy or adversely modify critical habitat 
include those that alter the primary constituent elements to an extent 
that the value of critical habitat for both the survival and recovery 
of the Morro shoulderband snail is appreciably reduced. We note that 
such activities may also jeopardize the continued existence of the 
species.
    To properly portray the effects of critical habitat designation, we 
must first compare the section 7 requirements for actions that may 
affect critical habitat with the requirements for actions that may 
affect a listed species. Section 7 prohibits actions funded, 
authorized, or carried out by Federal agencies from jeopardizing the 
continued existence of a listed species or destroying or adversely 
modifying the listed species' critical habitat. Actions likely to 
``jeopardize the continued existence'' of a species are those that 
would appreciably reduce the likelihood of the species' survival and 
recovery. Actions likely to ``destroy or adversely modify'' critical 
habitat are those that would appreciably reduce the value of critical 
habitat for the survival and recovery of the listed species.
    Common to both definitions is an appreciable detrimental effect on 
both survival and recovery of a listed species. Given the similarity of 
these definitions, actions likely to destroy or modify critical habitat 
would almost always result in jeopardy to the species concerned, 
particularly when the area of the proposed action is occupied by the 
species concerned.
    Designation of critical habitat in areas occupied by the Morro 
shoulderband snail is not likely to result in a regulatory burden above 
that already in place due to the presence of the listed species. When 
critical habitat is designated in unoccupied areas, the designation 
could result in an increase in regulatory requirements on Federal 
agencies; however, all of the critical habitat designated for the Morro 
shoulderband snail is occupied.
    Federal agencies already consult with us on activities in areas 
currently occupied by the species to ensure that their actions do not 
jeopardize the continued existence of the species. The actions we 
consult on include, but are not limited to:
    (1) Activities conducted by the Corps (e.g., ordinance removal);
    (2) Road construction and maintenance funded by the FHA; and
    (3) Exotic or invasive plant removal by pulling, shoveling, 
burning, or herbicide application by Federal agencies (e.g., EPA, FEMA, 
and the Service).

Exclusions Under Section 4(b)(2)

    Subsection 4(b)(2) of the Act allows us to exclude areas from 
critical habitat designation where the benefits of exclusion outweigh 
the benefits of designation, provided the exclusion will not result in 
the extinction of the species. For the following reasons, we believe 
that in most instances the benefits of excluding lands with approved 
HCPs from critical habitat designations will outweigh the benefits of 
including them.

(1) Benefits of Inclusion

    The benefits of including HCP lands in critical habitat are 
normally small. The principal benefit of any designated critical 
habitat is that activities in such habitat that may affect it require 
consultation under section 7 of the Act. Such consultation would ensure 
that adequate protection is provided to avoid adverse modification of 
critical habitat. Where HCPs are in place, our experience indicates 
that this benefit is small or non-existent. Currently approved and 
permitted HCPs are already designed to ensure the long-term survival of 
covered species within the plan area. Where we have an approved HCP, 
lands that we ordinarily would define as critical habitat for the 
covered species will normally be protected in reserves and other 
conservation lands by the terms of the HCPs and their implementation 
agreements. These HCPs and implementation agreements include management 
measures and protections for conservation lands that are crafted to 
protect, restore, and enhance their value as habitat for covered 
species.
    In addition, an HCP application must itself be consulted upon. 
While this consultation will not look specifically at the issue of 
adverse modification if critical habitat has not been designated, it 
will look at the very similar concept of jeopardy to the listed species 
in the plan area. Because HCPs address land use within the plan 
boundaries, habitat issues within the plan boundaries will have been 
thoroughly addressed in the HCP and through the consultation on the 
HCP. Our experience is also that, under most circumstances, 
consultations under the jeopardy standard will reach the same result as 
consultations under the adverse modification standard. Implementing 
regulations (50 CFR Part 402) define ``jeopardize the continued 
existence of'' and ``destruction or adverse modification of'' in 
virtually identical terms. ``Jeopardize the continued existence 
of'means to engage in an action ``that reasonably would be expected to 
reduce appreciably the likelihood of both the survival and recovery of 
a listed species.'' Destruction or adverse modification means an 
alteration that appreciably diminishes the value of critical habitat 
for both the survival and recovery of a listed species.'' Common to 
both definitions is an appreciable detrimental effect on both survival 
and recovery of a listed species, in the case of critical habitat by 
reducing the value of the habitat so designated. Thus, actions 
satisfying the standard for adverse modification are nearly always 
found to also jeopardize the species concerned, and the existence of a 
critical habitat designation does not materially affect the outcome of 
consultation. Additional measures to protect the habitat from adverse 
modification are not likely to be required.

[[Page 9239]]

    Further, HCPs typically provide for greater conservation benefits 
to a covered species than section 7 consultations because HCPs assure 
the long term protection and management of a covered species and its 
habitat, and funding for such management through the standards found in 
the 5-Point Policy for HCPs (64 FR 35242) and the HCP No Surprises 
regulation (63 FR 8859). Such assurances are typically not provided by 
section 7 consultations which, in contrast to HCPs, often do not commit 
the project proponent to long term special management or protections. 
Thus, a consultation typically does not accord the lands it covers the 
extensive benefits an HCP provides.
    The development and implementation of HCPs provide other important 
conservation benefits, including the development of biological 
information to guide conservation efforts and assist in species 
recovery, and the creation of innovative solutions to conserve species 
while allowing for development. The educational benefits of critical 
habitat, including informing the public of areas that are important for 
the long-term survival and conservation of the species, are essentially 
the same as those that would occur from the public notice and comment 
procedures required to establish an HCP, as well as the public 
participation that occurs in the development of many HCPs. For these 
reasons, then, we believe that designation of critical habitat has 
little benefit in areas covered by HCPs.

(2) Benefits of Exclusion

    The benefits of excluding HCPs from being designated as critical 
habitat may be more significant. During two public comment periods on 
our critical habitat policy, we received several comments about the 
additional regulatory and economic burden of designating critical 
habitat. These include the need for additional consultation with the 
Service and the need for additional surveys and information gathering 
to complete these consultations. HCP applicants have also stated that 
they are concerned that third parties may challenge HCPs on the basis 
that they result in adverse modification or destruction of critical 
habitat, should critical habitat be designated within the HCP 
boundaries.
    The benefits of excluding HCPs include relieving landowners, 
communities and counties of any additional minor regulatory review that 
might be imposed by critical habitat. Many HCPs, particularly large 
regional HCPs, take many years to develop and, upon completion, become 
regional conservation plans that are consistent with the recovery of 
covered species. Many plans benefit many species, both listed and 
unlisted. Imposing an additional regulatory review after HCP completion 
may jeopardize conservation efforts and partnerships in many areas and 
could be viewed as a disincentive to those developing HCPs. Excluding 
HCPs provides us with an opportunity to streamline regulatory 
compliance and confirms regulatory assurances for HCP participants.
    A related benefit of excluding HCPs is that it would encourage the 
continued development of partnerships with HCP participants, including 
states, local governments, conservation organizations, and private 
landowners, that together can implement conservation actions we would 
be unable to accomplish alone. By excluding areas covered by HCPs from 
critical habitat designation, we preserve these partnerships and, we 
believe, set the stage for more effective conservation actions in the 
future.
    In general, then, we believe the benefits of critical habitat 
designation to be small in areas covered by approved HCPs. We also 
believe that the benefits of excluding HCPs from designation are 
significant. Weighing the small benefits of inclusion against the 
benefits of exclusion, including the benefits of relieving property 
owners of an additional layer of approvals and regulation, together 
with the encouragement of conservation partnerships, would generally 
result in HCPs being excluded from critical habitat designation under 
Section 4(b)(2) of the Act.
    Not all HCPs are alike with regard to species coverage and design. 
Within this general analytical framework, we need to evaluate completed 
and legally operative HCPs in the range of the Morro shoulderband snail 
on a case-by-case basis to determine whether the benefits of excluding 
these particular areas outweigh the benefits of including them.

Relationship to Habitat Conservation Plans

    Section 4(b)(2) of the Act allows us to exclude areas from critical 
habitat designation where the benefits of exclusion outweigh the 
benefits of designation, provided the exclusion will not result in the 
extinction of the species. We expect that critical habitat may be used 
as a tool to identify those areas essential for the conservation of the 
species, and we will encourage development of HCPs for such areas on 
non-Federal lands. Habitat conservation plans currently under 
development are intended to provide for protection and management of 
habitat areas essential for the conservation of the Morro shoulderband 
snail, while directing development and habitat modification to 
nonessential areas of lower habitat value.
    HCPs currently under development are intended to provide for 
protection and management of habitat areas essential for the 
conservation of the Morro shoulderband snail, while directing 
development and habitat modification to nonessential areas of lower 
habitat value. The HCP development process provides an opportunity for 
more intensive data collection and analysis regarding the use of 
particular habitat areas by the snail. The process also enables us to 
conduct detailed evaluations of the importance of such lands to the 
long-term survival of the species in the context of constructing a 
biologically configured system of interlinked habitat blocks. We fully 
expect that HCPs undertaken by local jurisdictions (e.g., counties, 
cities) and other parties will identify, protect, and provide 
appropriate management for those specific lands within the boundaries 
of the plans that are essential for the long-term conservation of the 
species. We believe and fully expect that our analyses of these 
proposed HCPs and proposed permits under section 7 will show that 
covered activities carried out in accordance with the provisions of the 
HCPs and permits will not result in destruction or adverse modification 
of critical habitat.
    We will provide technical assistance and work closely with 
applicants throughout the development of future HCPs to identify lands 
essential for the long-term conservation of the Morro shoulderband 
snail, and appropriate management of those lands. The take minimization 
and mitigation measures provided under these HCPs are expected to 
protect the essential habitat lands designated as critical habitat in 
this rule. If an HCP that addresses the Morro shoulderband snail as a 
covered species is ultimately approved, we will reassess the critical 
habitat boundaries in light of the HCP. We will seek to undertake this 
review when the HCP is approved, but funding constraints may influence 
the timing of such a review. Several HCP efforts are now under way for 
listed species in areas within the range of the Morro shoulderband 
snail in areas we are designating as critical habitat. However, since 
these HCPs have not been completed, these areas are being designated as 
critical habitat.
    Several HCPs have been completed within the range of the Morro 
shoulderband snail. The Los Osos Center HCP, Hord Residential HCP, and

[[Page 9240]]

MCI/Worldcom HCP contributed funds toward the purchase and perpetual 
management of several acres to serve as conservation sites for the 
Morro shoulderband snail. The snail habitat preserved in these existing 
HCP planning areas will be managed for the benefit of the snail, 
regardless of a critical habitat designation. The benefits of excluding 
lands covered by these HCPs would be significant in preserving positive 
relationships with our conservation partners, lessening potential 
additional regulatory review and potential economic burdens, 
reinforcing the regulatory assurances provided for in the 
implementation agreements for the approved HCPs, and providing for more 
established and cooperative partnerships for future conservation 
efforts.
    In summary, the benefits of including these HCPs in critical 
habitat for the Morro shoulderband snail include increased educational 
benefits and minor additional management protections and measures. The 
benefits of excluding HCPs from being designated as critical habitat 
for the Morro shoulderband snail include the additional conservation 
measures for the Morro shoulderband snail and other listed species, 
preservation of partnerships that may lead to future conservation, and 
the avoidance of the minor regulatory and economic burdens associated 
with the designation of critical habitat. The benefits of excluding 
these areas from critical habitat designation outweigh the benefits of 
including these areas. Furthermore, we have determined that these 
exclusions will not result in the extinction of the species. We have 
already completed section 7 consultation on the impacts of these HCPs 
on the species. We have determined that they will not jeopardize the 
continued existence of the species, which means that they will not 
appreciably reduce likelihood of the survival and recovery of the 
species. Consequently, these lands have not been designated as critical 
habitat for the Morro shoulderband snail.

Summary of Comments and Recommendations

    In the July 12, 2000, proposed rule (65 FR 42962), we requested 
that all interested parties submit comments on the specifics of the 
proposal, including information, policy, treatment of HCPs, and 
proposed critical habitat boundaries. On November 21, 2000, we 
published a notice of availability and request for comments on the 
draft economic analysis (65 FR 69896). Comments received from July 12, 
2000, through December 6, 2000, were entered into the administrative 
record.
    We contacted all appropriate State and Federal agencies, county 
governments, scientific organizations, and other interested parties and 
invited them to comment. In addition, we published a newspaper notice 
in the San Luis Obispo Telegram Tribune on July 17, 2000, inviting 
public comment review and comment. We did not hold any public hearings 
on the proposed rule.
    We requested three individuals familiar with the Morro shoulderband 
snail to peer review the proposed critical habitat designation. Two of 
the peer reviewers submitted comments on the proposed critical habitat 
designation, providing updated biological information, critical review, 
and editorial comments. We addressed their comments in the responses 
below, or incorporated them into other parts of this final rule.
    We received a total of 12 written comments during the two comment 
periods. Of those written comments, five supported critical habitat 
designation, one opposed critical habitat designation, and six provided 
additional information but did not support or oppose critical habitat 
designation. One organization initially sent a letter requesting a 
public hearing, but later withdrew after we provided them the 
clarification they needed over the phone. In total, written comments 
were received from one State agency, one local government, and nine 
private organizations or individuals.
    We reviewed all comments received for substantive issues and new 
data regarding critical habitat and the Morro shoulderband snail. We 
grouped comments of a similar nature relating specifically to the 
proposed critical habitat determination and draft economic analysis on 
the proposed determination. These are addressed in the following 
summary.
    (1) Comment: One commenter expressed concerns about the present and 
future impact of the Morro Bay Power Plant (Power Plant) on the habitat 
of the Morro shoulderband snail. The commenter advised us to take into 
consideration any possible adverse effects from the Power Plant's air 
emissions to the Morro shoulderband snail and its habitat.
    Our Response: We will explore any valid scientific information 
regarding the effect of air emissions from the Power Plant to the Morro 
shoulderband snail. This issue will also be addressed during our review 
of the draft and final Environmental Impact Report/Statements for the 
proposed expansion of the Power Plant.
    (2) Comment: Two commenters, on behalf of some major landowners, 
requested more information and clarification regarding the designation 
of three proposed units including the purpose of unit numbers. They 
also wanted to know what information we used to determine which areas 
to designate as critical habitat for the Morro shoulderband snail.
    Our Response: We determined what areas to include as critical 
habitat by using such factors as physiological, behavioral, ecological, 
and evolutionary requirements that are essential to the conservation of 
the Morro shoulderband snail. More specifically, we used the primary 
constituent elements which include the following physical and 
biological features: sand or sandy soil needed for reproduction; a 
slope not greater than 10 percent to facilitate movement of 
individuals; and native coastal dune scrub vegetation. The areas we 
proposed to designate as critical habitat provide some or all of the 
primary constituent elements and were selected because they contain the 
best of the remaining habitat for the snail in an otherwise fragmented 
landscape. Restoration and maintenance of snail habitat in these areas 
will contribute to recovery by reducing fragmentation and isolation of 
populations, and providing a mosaic of suitable habitat for recovering 
populations. The unit numbers represent the area for reference purposes 
and were based on areas identified as essential in the final Recovery 
Plan for the Morro Shoulderband Snail and Four Plants from Western San 
Luis Obispo County, September 26, 1998.
    (3) Comment: One commenter requested we include all the critical 
habitat units as one unit of coastal dune ecosystem regardless of HCP 
boundaries or property ownerships so that when management of the 
critical habitat is planned, it can be managed as contiguous habitat as 
much as possible (except for ``islands of habitat'' within the urban 
part of Los Osos). Management plans should be united for the utmost 
protection resulting in the goal of recovery.
    Our Response: We agree that a landscape approach to managing the 
larger coastal dune ecosystem would be ideal. However, this critical 
habitat designation can only encompass habitat essential for the 
conservation of the Morro shoulderband snail. It would not be 
appropriate to include in the designation other areas within the 
coastal zone ecosystem that do not provide the primary constituent 
element

[[Page 9241]]

essential to the conservation of the snail. We used the primary 
constituent elements discussed in the preceding response to define the 
areas we are designating as critical habitat, so that all the areas 
would provide some or all of these primary constituent elements.
    (4) Comment: One commenter was concerned how our proposed critical 
habitat designation would affect the proposed Los Osos wastewater 
treatment facility and project. The wastewater project is the result of 
an order from the Regional Water Quality Control Board under the Clean 
Water Act, and the lead agency for the wastewater project is in a very 
difficult position of trying to implement the wastewater system within 
an area with limited properties available for siting the wastewater 
facilities in the community of Los Osos.
    Our Response: At present time, the lead agency is proposing to 
develop a 4.5 ha (11 ac) wastewater treatment facility located at Tri-W 
inside the community of Los Osos. This area is not within any of the 
designated critical habitat units. We have conducted formal section 7 
consultations with the lead agency and EPA on the proposed facility as 
a result of the listing of the snail. Because the area where the 
facility is to be built is outside designated critical habitat, future 
section 7 consultations associated with the project will not be 
affected by the designation of critical habitat.
    (5) Comment: Three commenters who supported the proposed critical 
habitat designation disagreed with the concept of excluding areas 
covered by HCPs.
    Our Response: Three HCPs have been completed within the Los Osos 
area for the Morro shoulderband snail. All of these lands are located 
inside Unit 3, but were excluded from the critical habitat designation 
because we determined that, for lands covered by an existing operative 
HCP and executed implementation agreement (IA) for the Morro 
shoulderband snail under section 10(a)(1)(B) of the Act, the benefits 
of exclusion outweigh the benefits of inclusion as discussed in section 
4(b)(2) of the Act. Therefore such lands are not designated as critical 
habitat. All three areas will be managed for the benefit of the species 
under the terms of the individual HCPs; in addition, a majority of 
those three areas are currently managed by California State Parks since 
they are a signatory party in the final IA. We believe California State 
Parks will implement the conservation efforts according to the 
guidelines set forth in the HCPs.
    (6) Comment: Two commenters encouraged the Service to map the 
critical habitat boundaries in more detail.
    Our Response: We believe we have mapped critical habitat in 
sufficient detail to include those areas that were determined to be 
essential to the conservation of the Morro shoulderband snail. We 
recognize that not every parcel of land within designated critical 
habitat will contain all of the habitat components essential to Morro 
shoulderband snail conservation. We are required to describe critical 
habitat (50 CFR 424.12(c)) with specific limits using reference points 
and lines as found on standard topographic maps of the area. The 
approach to developing this critical habitat designation was based on 
the best available scientific information, and on the development of a 
scientifically supportable model for predicting Morro shoulderband 
snail habitat.
    Due to the time constraints imposed by the court, and the absence 
of fine-scale, detailed GIS coverages during the preparation of the 
proposed and final determination, we included some areas within the 
boundaries of the critical habitat designation that are not essential 
to the conservation of the Morro shoulderband snail, such as towns, 
housing developments, or other developed lands unlikely to provide 
habitat for the Morro shoulderband snail. However, because these 
developed areas do not contain the primary constituent elements for the 
species, we believe that activities occurring on them will not affect 
the snail or its designated critical habitat and thus, will not trigger 
a section 7 consultation.
    (7) Comment: One commenter supplied new biological information 
based on his participation in biological survey work on the Morro 
shoulderband snail throughout the community of Los Osos. The commenter 
advised us that Morro shoulderband snails use coyote brush as they are 
commonly found under the coyote brush in an area north of unit 3. In 
addition, the commenter provided a U.S. Geological Survey 7.5 minute 
quadrangle map showing areas where Morro shoulderband snails have been 
found.
    Our Response: We incorporated the commenter's new biological 
information in the final rule. One of the areas shaded was not within 
any of the proposed critical habitat units. The area is described as 
Cero Cabrillo and is located within Morro Bay State Park, northeast 
from proposed unit 3. Service staff visited the site on October 26, 
2000, and Morro shoulderband snail shells were found in the area. 
However, we were not able to include the new location in the final rule 
because of time constraints in meeting the court ordered deadline for 
this final rule. We will consider amending the critical habitat 
designation to include the new location when funding is available.

Summary of Changes From the Proposed Rule

    Based on a review of public comments received on the proposed 
determination of critical habitat and economic analysis for the Morro 
shoulderband snail, we reevaluated our proposed designation of critical 
habitat for this species. We found there was no need to make any 
substantial changes to the proposed designation for the final rule.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific and commercial information 
available, and to consider the economic and other relevant impacts of 
designating a particular area as critical habitat. We may exclude areas 
from critical habitat upon a determination that the benefits of such 
exclusions outweigh the benefits of specifying such areas as critical 
habitat. We cannot exclude such areas from critical habitat when such 
exclusion will result in the extinction of the species.
    Economic effects caused by listing the Morro shoulderband snail as 
an endangered species, and by other statutes, are the baseline upon 
which the effects of critical habitat designation are evaluated. The 
economic analysis must then examine the incremental economic effects of 
the critical habitat including both the cost and benefits. Economic 
effects are measured as changes in national income, regional jobs, and 
household income. An analysis of the economic effects of Morro 
shoulderband snail critical habitat designation was prepared 
(Industrial Economics, Incorporated 2000) and made available for public 
review (November 21, 2000-December 6, 2000; 65 FR 69896). The final 
analysis, which reviewed and incorporated public comments, concluded 
that no significant economic impacts are expected from critical habitat 
designation above and beyond those already imposed by listing the Morro 
shoulderband snail. The most likely economic effects of critical 
habitat designation are on activities funded, authorized, or carried 
out by a Federal agency. The analysis examined the effects of the 
proposed designation on: (1) Reinitiation of section 7 consultations, 
(2) length of time in

[[Page 9242]]

which section 7 consultations are completed, and (3) new consultation 
resulting from the determination. Because areas proposed for critical 
habitat are within the geographic range occupied by the Morro 
shoulderband snail, activities that may affect critical habitat may 
also affect the species, and would thus be subject to consultation 
whether or not critical habitat is designated.
    We believe that any project that would adversely modify or destroy 
critical habitat would also jeopardize the continued existence of the 
species, and that reasonable and prudent alternatives to avoid 
jeopardizing the species would also avoid adverse modification of 
critical habitat. Thus, no regulatory burden or significant additional 
costs would accrue because of critical habitat above and beyond that 
resulting from listing. Our economic analysis recognizes that there may 
be costs from delays associated with reinitiating completed 
consultations after the critical habitat designation is made final. 
There may also be economic effects due to the critical habitat 
designation, as real estate values may be lowered due to perceived 
increase in the regulatory burden. We believe this impact will be 
short-term, however.
    A copy of the final economic analysis and description of the 
exclusion process with supporting documents are included in our 
administrative record, and may be obtained by contacting our office 
(see ADDRESSES section).

Public Hearings

    No public hearing was requested or held for the proposed rule.

Required Determinations

Regulatory Planning and Review

    This document has been reviewed by the Office of Management and 
Budget (OMB), in accordance with Executive Order 12866. OMB makes the 
final determination under Executive Order 12866.
    (a) This rule will not have an annual economic effect of $100 
million or more, or adversely affect an economic sector, productivity, 
jobs, the environment, or other units of government. A cost-benefit 
analysis is not required. The Morro shoulderband snail was listed as an 
endangered species in 1994. In fiscal years 1994 through 1999, we 
conducted nine formal section 7 consultations with other Federal 
agencies to ensure that their actions would not jeopardize the 
continued existence of the snail.
    The areas designated as critical habitat are currently occupied by 
the Morro shoulderband snail. Under the Act, critical habitat may not 
be adversely modified by a Federal agency action; critical habitat does 
not impose any restrictions on non-Federal entities unless they are 
conducting activities funded or otherwise sponsored or permitted by a 
Federal agency (see Table 2 below). Section 7 requires Federal agencies 
to ensure that they do not jeopardize the continued existence of the 
species. Based upon our experience with the species and its needs, we 
conclude that any Federal action or authorized action that could 
potentially cause an adverse modification of the designated critical 
habitat would currently be considered as ``jeopardy'' under the Act in 
areas occupied by the species. Accordingly, the designation of 
currently occupied areas as critical habitat does not have any 
incremental impacts on what actions may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. Non-Federal persons that do not have a 
Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat (however, they continue to be bound by 
the provisions of the Act concerning ``take'' of the species).
    (b) This rule will not create inconsistencies with other agencies' 
actions. As discussed above, Federal agencies have been required to 
ensure that their actions do not jeopardize the continued existence of 
the Morro shoulderband snail since the listing in 1994. The prohibition 
against adverse modification of critical habitat is not expected to 
impose any additional restrictions to those that currently exist 
because all of the designated critical habitat occurs in occupied 
areas.
    (c) This rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
Federal agencies are currently required to ensure that their activities 
do not jeopardize the continued existence of the species, and, as 
discussed above, we do not anticipate that the adverse modification 
prohibition (resulting from critical habitat designation) will have any 
incremental effects in areas of occupied habitat.
    (d) This rule will not raise novel legal or policy issues. The 
final rule follows the requirements for determining critical habitat 
contained in the Act.

             Table 2.--Impacts of Morro Shoulderband Snail Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                                                              Additional activities  potentially
      Categories of activities          Activities potentially affected by       affected by critical habitat
                                               species listing only                    designation \1\
----------------------------------------------------------------------------------------------------------------
Federal activities potentially        Activities conducted by U.S. Army      None.
 affected \2\.                         Corps of Engineers (e.g. ordinance
                                       removal).
Private or other non-Federal          Activities that require a Federal      None.
 activities potentially affected \3\.  action (permit, authorization, or
                                       funding) and may remove or destroy
                                       Morro shoulderband snail habitat by
                                       mechanical, chemical, or other means
                                       (e.g., grading, overgrazing,
                                       construction, road building,
                                       herbicide application, recreational
                                       use, etc.) or appreciably decrease
                                       habitat value or quality through
                                       indirect effects (e.g., edge
                                       effects, invasion of exotic plants
                                       or animals, fragmentation of habitat.
----------------------------------------------------------------------------------------------------------------
\1\ This column represents activities potentially affected by the critical habitat designation in addition to
  those activities potentially affected by listing the species.
\2\ Activities initiated by a Federal agency.
\3\ Activities initiated by a private or other non-Federal entity that may need Federal authorization or
  funding.


[[Page 9243]]

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

    In the economic analysis (required under section 4 of the Act), we 
determined that designation of critical habitat will not have a 
significant effect on a substantial number of small entities. As 
discussed under Regulatory Planning and Review above and in this final 
determination, this designation of critical habitat for the Morro 
shoulderband snail is not expected to result in any restrictions in 
addition to those currently in existence for areas of occupied critical 
habitat. As indicated on Table 1 (see Critical Habitat Designation 
section), we designated property owned by State and local governments, 
and private property.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are:
    (1) Activities conducted by the Corps (e.g. ordinance removal);
    (2) Road construction and maintenance funded by the FHA; and
    (3) Other activities (e.g. exotic or invasive plant removal by 
pulling, shoveling, burning, or herbicide application) funded or 
permitted by Federal agencies (e.g., EPA, FEMA, and the Service).
    Many of these activities sponsored by Federal agencies within the 
designated critical habitat areas are carried out by small entities (as 
defined by the Regulatory Flexibility Act) through contract, grant, 
permit, or other Federal authorization. As discussed above, these 
actions are currently required to comply with the listing protections 
of the Act, and the designation of critical habitat is not anticipated 
to have any additional effects on these activities.
    For actions on non-Federal property that do not have a Federal 
connection (such as funding or authorization), the current restrictions 
concerning take of the species remain in effect, and this rule will 
have no additional restrictions.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 
804(2))

    In the economic analysis, we determined the designation of critical 
habitat will not cause (a) any effect on the economy of $100 million or 
more, (b) any increases in costs or prices for consumers, individual 
industries, Federal, State, or local government agencies, or geographic 
regions; or (c) any significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
U.S.-based enterprises to compete with foreign-based enterprises. Refer 
to the final economic analysis for a discussion of the effects of this 
determination.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
August 25, 2000 et seq.):
    (a) This rule will not ``significantly or uniquely'' affect small 
governments. A Small Government Agency Plan is not required. Small 
governments will be affected only to the extent that any programs 
having Federal funds, permits, or other authorized activities must 
ensure that their actions will not adversely affect the critical 
habitat. However, as discussed above, these actions are currently 
subject to equivalent restrictions through the listing protections of 
the species, and no further restrictions are anticipated to result from 
critical habitat designation of occupied areas.
    (b) This rule will 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. The designation of 
critical habitat imposes no obligations on State or local governments.

Takings

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. A takings implication assessment is 
not required. As discussed above, the designation of critical habitat 
affects only Federal agency actions. Due to current public knowledge of 
the species protection, the prohibition against take of the species 
both within and outside of the designated areas, and the fact that 
critical habitat provides no incremental restrictions, we do not 
anticipate that property values will be affected by the critical 
habitat designation. While real estate market values may temporarily 
decline following designation, due to the perception that critical 
habitat designation may impose additional regulatory burdens on land 
use, we expect any such impacts to be short term. Additionally, 
critical habitat designation does not preclude development of HCPs and 
issuance of incidental take permits. Landowners in areas that are 
included in the designated critical habitat will continue to have 
opportunity to utilize their property in ways consistent with the 
survival of the Morro shoulderband snail.

Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. The designation of critical habitat in areas currently 
occupied by the Morro shoulderband snail imposes no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation may have some benefit to these governments in that the 
areas essential to the conservation of the species are more clearly 
defined and the primary constituent elements of the habitat necessary 
to the survival of the species are specifically identified. While 
making this definition and identification does not alter where and what 
federally sponsored activities may occur, it may assist these local 
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).

Civil Justice Reform

    In accordance with Executive Order 12988, the Office of the 
Solicitor has determined that the rule does not unduly burden the 
judicial system and meets the requirements of sections 3(a) and 3(b)(2) 
of the Order. We designated critical habitat in accordance with the 
provisions of the Endangered Species Act. The determination uses 
standard property descriptions and identifies the primary constituent 
elements within the designated areas to assist the public in 
understanding the habitat needs of the Morro shoulderband snail.

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

    This rule does not contain any information collection requirements 
for which Office of Management and Budget (OMB) approval under the 
Paperwork Reduction Act is required.

National Environmental Policy Act

    We have determined that we do not need to prepare an Environmental 
Assessment and/or an Environmental Impact Statement as defined by the 
National Environmental Policy Act of 1969 in connection with 
regulations adopted pursuant to section 4(a) of the Endangered Species 
Act, as amended. We published a notice outlining our reasons for this 
determination in the Federal Register on October 25, 1983 (48 FR 
49244). This final determination does not constitute a major Federal 
action significantly affecting the quality of human environment.

Government-to-Government Relationship with Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations

[[Page 9244]]

with Native American Tribal Governments'' (59 FR 22951) and 512 DM 2 
and Executive Order 13175, we readily acknowledge our responsibility to 
communicate meaningfully with recognized Federal Tribes on a 
government-to-government basis.
    We have determined that no Tribal lands are essential for the 
conservation of the Morro shoulderband snail because no Tribal lands 
support populations of snails or suitable habitat. Therefore, we are 
not designating critical habitat for the Morro shoulderband snail on 
Tribal lands.

References Cited

Chambers, S.M. 1997. Channel Islands and California desert snail 
fauna. Pages 25-27, 52, 53 in Mac, M.J., P.A. Opler, C.E. Puckett 
Haecker, and P.D. Doran, eds. Status and trends of the Nation's 
biological resources. U.S. Department of the Interior, U.S. 
Geological Survey, Washington D.C.
Hemphill, H. 1911. Descriptions of some varieties of shells with 
short notes on the geographical range and means of distribution of 
land shells. Transactions of the San Diego Society of Natural 
History (1):99-108.
Hill, D.L. 1974. Helminthoglypta walkeriana: A rare and endangered 
land mollusc. Senior Project, California Polytechnic State 
University, San Luis Obispo. 21 pp.
Roth, B. 1985. Status survey of the banded dune snail, 
Helminthoglypta walkeriana. Unpublished report prepared for U.S. 
Fish and Wildlife Service, Sacramento, California. 27 pp. + figures.
U.S. Fish & Wildlife Service. 1998. Recovery plan for the Morro 
shoulderband snail and four plants from western San Luis Obispo 
County, California. U.S. Fish and Wildlife Service, Portland, 
Oregon. 75 pp.

Author

    The primary author of this document is Ron Popowski of our Ventura 
Fish and Wildlife Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 
of the Code of Federal Regulations as set forth below:

PART 17--[AMENDED]

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

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

    2. In Sec. 17.11(h), revise the entry for ``Snail, Morro 
shoulderband (=Banded dune)'' under ``SNAILS'' to read as follows:


Sec. 17.11  Endangered and threatened wildlife.

* * * * *
    (h) * * *

 
--------------------------------------------------------------------------------------------------------------------------------------------------------
                      Species                                                 Vertebrate
----------------------------------------------------                       population where                                    Critical        Special
                                                       Historic range        endangered or        Status      When listed      habitat          rules
          Common name              Scientific name                            threatened
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
             Snails
 
                   *                  *                  *                  *                  *                  *                  *
Snail, Morro shoulderband        Helminthoglypta     U.S.A. (CA).......                   NA   E                     567   17.95(f)                  NA
 (=Banded dune).                  walkeriana.
 
                     *                  *                  *                  *                  *                  *              *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Add Sec. 17.95(f) to read as follows:


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (f) Clams and Snails.
Morro Shoulderband Snail (Helminthoglypta walkeriana)
    1. Critical habitat units are depicted for San Luis Obispo 
County, California, on the map below.

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    Map Units 1 to 3: All located in San Luis Obispo County, 
California. Coastline boundaries are based upon the U.S. Geological 
Survey Morro Bay South 7.5 minute topographic quadrangle. Other 
boundaries are based upon the Public Land Survey System. Within the 
historical boundaries of the Canada De Los Osos Y Pecho Y Islay Mexican 
Land Grant, boundaries are based upon section lines that are extensions 
to the Public Land Survey System developed by the California Department 
of Forestry and obtained by us from the State of California's Stephen 
P. Teale Data Center. Township and Range numbering is derived from the 
Mount Diablo Base and Meridian.
    Map Unit 1: T. 29 S., R. 10 E., all of section 35 above mean sea 
level (MSL); T. 30 S., R. 10 E. All portions of sections 1, 2, 11, 12, 
14, 22, and 27 above MSL, SW\\1/4\\NW\\1/4\\ section 13 above MSL, 
W\\1/2\\NW\\1/4\\ section 24, all of section 23 above MSL except S\\1/
2\\SE\\1/4\\, NW\\1/4\\NW\\1/4\\ section 26, N\\1/2\\N\\1/2\ section 
34.
    Map Unit 2: T. 30 S., R. 10 E., E\\1/2\\NE\\1/4\ section 24; T. 30 
S., R, 11 E., E\\3/4\\N\\1/2\\ section 19.
    Map Unit 3: T. 30 S., R. 11 E., All of NE\\1/4\ section 7 above 
MSL; in section 8, NW\\1/4\\NW\\1/4\, S\\1/2\\NW\\1/4\, SW\\1/4\\, and 
NW\\1/4\\SE\\1/4\\.
    2. Within these areas, the primary constituent elements include, 
but are not limited to, those habitat components that are essential for 
the primary biological needs of foraging, sheltering, reproduction, and 
dispersal. The primary constituent elements for the Morro shoulderband 
snail are the following: sand or sandy soils; a slope not greater than 
10 percent; and the presence of, or the capacity to develop, coastal 
dune scrub vegetation.
    3. Critical habitat does not include existing developed sites 
consisting of buildings, roads, aqueducts, railroads, airports, paved 
areas, and similar features and structures.
* * * * *

    Dated: February 1, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-3126 Filed 2-6-01; 8:45 am]
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