[Federal Register Volume 66, Number 26 (Wednesday, February 7, 2001)]
[Rules and Regulations]
[Pages 9219-9233]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-3129]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AG28


Endangered and Threatened Wildlife and Plants; Final 
Determination of Critical Habitat for the Zayante Band-Winged 
Grasshopper

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 Zayante band-winged grasshopper (Trimerotropis 
infantilis) under the Endangered Species Act of 1973, as amended (Act). 
The designation includes an approximately 4,224 hectare (10,560 acre) 
area in Santa Cruz County, California, which includes all areas known 
to be occupied by the Zayante band-winged grasshopper. Critical habitat 
identifies specific areas that are essential to the conservation of a 
listed species, and that may require special management considerations 
or protection. The primary constituent elements for the Zayante band-
winged grasshopper are those habitat components that are essential for 
the primary physical and biological needs of the species. These needs 
include food, water, sunlight, air, minerals and other nutritional or 
physiological needs; cover or shelter; sites for breeding and 
reproduction and dispersal; protection from disturbance; and habitat 
that is representative of the historic geographical, and ecological 
distribution of the Zayante band-winged grasshopper.
    Section 7 of the Act prohibits destruction or adverse modification 
of critical habitat by any activity funded, authorized, or carried out 
by any Federal agency. As required by section

[[Page 9220]]

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 rule becomes effective on March 9, 2001.

ADDRESSES: You may inspect the complete file for this rule at the 
Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 
Portola Road, Suite B, Ventura, CA 93001, by appointment during normal 
business hours.

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

SUPPLEMENTARY INFORMATION:

Background

    The Zayante band-winged grasshopper (Trimerotropis infantilis), 
Order Orthoptera and Family Acrididae, was first described from near 
Mount Hermon in the Santa Cruz Mountains, Santa Cruz County, 
California, in 1984 (Rentz and Weissman 1984). The body and forewings 
of the Zayante band-winged grasshopper are pale gray to light brown 
with dark cross-bands on the forewings. The basal area of the hindwings 
is pale yellow with a faint thin band. The hind tibiae (lower legs) are 
blue, and the eyes have bands around them. Males range in length from 
13.7 to 17.2 millimeters (mm) (0.54 to 0.68 inches (in.)); females are 
larger, ranging in length from 19.7 to 21.6 mm (0.78 to 0.85 in.) (Otte 
1984; Rentz and Weissman 1984). The Zayante band-winged grasshopper is 
most similar in appearance to T. occulans and T. koebelei; neither of 
these species is known from the Santa Cruz Mountains (Otte 1984, Rentz 
and Weissman 1984). Trimerotropis thalassica and T. pallidipennis 
pallidipennis have been observed in the vicinity of Zayante band-winged 
grasshopper, but are morphologically distinct from it and appear to 
prefer different microhabitats (Rentz and Weissman 1984; Arnold 1999a, 
b).
    The flight season for adult Zayante band-winged grasshopper extends 
from late May through October with peak activity during July and August 
(White, in litt. 1993; Morgan, in litt. 1994; Arnold 1999a, b). 
Specimens have been observed as late as November 4 (Arnold 1999a). When 
flushed, individuals generally fly 1 to 2 meters (m) (3 to 7 feet 
(ft)), producing a buzzing sound while in flight (Rentz and Weissman 
1984). Band-winged grasshoppers often alight on bare ground, and are 
conspicuous in flight because of the color of the hind wings and the 
buzzing sound made by the wings (Borror et al. 1976). No additional 
information on the life cycle of this species is available.
    The Zayante band-winged grasshopper is known only from Santa Cruz 
County, California. The species was described in 1984 from specimens 
collected in 1977 on sparsely vegetated sandy soil above the Olympia 
Sand Quarry. Between 1989 and 1994, Zayante band-winged grasshoppers 
were found at 10 of 39 sites sampled during two independent surveys 
near the communities of Ben Lomond, Felton, Mount Hermon, Zayante, and 
Scotts Valley, California (Hovore 1996, USFWS 1998).
    Little is known of the historical distribution of the species. A 
review of museum specimens yielded Zayante band-winged grasshoppers 
from ``Santa Cruz Mountains, no date'', ``Alma, 1928'', ``Felton, 
1959'', and ``Santa Cruz, 1941'' (Rentz and Weissman 1984). No 
subsequent collections have been recorded that substantiate the 
existence of a population in the vicinity of Alma. Furthermore, the 
town of Alma is currently beneath a reservoir, and the cited specimens 
cannot be located in the listed depository for verification (D. 
Weissman, California Academy of Sciences, pers. comm. 1994, 2000). 
Therefore, because no specific descriptions of location or habitat 
accompanied these historic specimens, they were not considered in our 
assessment of the current range and status of the species.
    The Zayante band-winged grasshopper occurs in association with the 
Zayante soil series (USDA Soil Conservation Service 1980). The Zayante 
soils in the vicinity of the communities of Ben Lomond, Felton, Mount 
Hermon, Zayante, and Scotts Valley are dominated by maritime coast 
range Pinus ponderosa (ponderosa pine) forest and northern maritime 
chaparral (Griffin 1964, Holland 1986). The distributions of these two 
plant communities overlap to form a complex and intergrading mosaic of 
communities variously referred to as ponderosa sand parkland, ponderosa 
pine sand hills, and Arctostaphylos silvicola (silver-leafed manzanita) 
mixed chaparral. These communities are collectively referred to as 
``Zayante sand hills habitat'' and harbor a diversity of rare and 
endemic plant species (Thomas 1961, Griffin 1964, Morgan 1983). A 
unique habitat within the Zayante sand hills is sand parkland, 
characterized by sparsely vegetated, sandstone-dominated ridges, and 
saddles that support scattered ponderosa pines and a wide array of 
annual and perennial herbs and grasses.
    The role of landscape-level processes, including hydrology, seed 
dispersal, succession, fire, and other disturbances, in forming Zayante 
sand hills habitats is poorly understood. Historically, the Zayante 
sand hills included a continually changing pattern of habitat patches, 
each with specific disturbance histories, sizes, and species 
compositions. At any one time, patches of all possible stages of 
succession would be present (Lee 1994). Populations of the Zayante 
band-winged grasshopper evolved within this dynamic landscape and most 
likely are adapted to disturbance and change.
    The habitat of the Zayante band-winged grasshopper was originally 
described as ``sandy substrate sparsely covered with Lotus and grasses 
at the base of pines'' (Rentz and Weissman 1984). All of the locations 
where grasshoppers were found during surveys completed between 1989 and 
1994 were on Zayante soils. The habitat at these sites was consistently 
described as a sparsely vegetated sandy substrate or sand parkland 
(White, in litt. 1993; Morgan, in litt. 1994). In 1997, at the time of 
the listing of this species, all of its known locations occurred within 
7 discrete areas of sand parkland habitat as characterized by Lee 
(1994). These areas of sand parkland totaled 78 ha (193 ac). Recent 
studies indicated that the Zayante band-winged grasshopper occurs 
primarily in early successional sand parkland with widely scattered 
tree and shrub cover, extensive areas of bare or sparsely vegetated 
ground, loose sand, and relatively flat relief (Hovore 1996; Arnold 
1999a, b). However, Zayante band-winged grasshoppers have also recently 
been observed in areas with a well-developed ground cover and in areas 
with sparse chaparral mixed with patches of grasses and forbs (Hovore 
1996; Arnold 1999a, b), indicating that Zayante band-winged 
grasshoppers are not restricted solely to sand parkland. As a result of 
this new information, the amount of area that provides potential 
habitat for the species has not been quantified at this time.
    The primary threat to the Zayante band-winged grasshopper is loss 
of habitat. Historically, approximately 2,533 ha (6,265 ac) of Zayante 
sand hills habitat occurred in Santa Cruz County. Over 40 percent of 
the Zayante sand hills habitat, and 60 percent of the sand parkland 
within that habitat, is estimated to have been lost or altered due to 
human activities. These activities include--sand mining, urban 
development, recreational activities,

[[Page 9221]]

and agriculture (Marangio and Morgan 1987; Lee 1994; R. Morgan, pers. 
comm. 1992). Approximately 200 to 240 hectares (ha) (500 to 600 acres 
(ac)) of sand parkland existed historically (Marangio and Morgan 1987). 
By 1986, only 100 ha (250 ac) of sand parkland remained intact 
(Marangio and Morgan 1987). By 1992, sand parkland was reportedly 
reduced to only 40 ha (100 ac) (Morgan, pers. comm. 1992). A more 
recent assessment revised that estimate up to 78 ha (193 ac), largely 
because of identification and inclusion of additional, lower-quality 
sand parkland (Lee 1994).
    The disruption of natural landscape-level processes may also be 
resulting in shifts in plant communities, which has reduced the extent 
and quality of habitat available for the Zayante band-winged 
grasshopper (USFWS 1998). For example, active suppression of fire has 
resulted in the encroachment of mixed evergreen forest into ponderosa 
pine forest (Marangio 1985). Increased shading from the mixed evergreen 
forest appears to restrict the use of areas by the Zayante band-winged 
grasshopper and results in lower population numbers (Sculley, USFWS, 
pers. observation 1999). Historically, fires would have burned in this 
area and resulted in areas with more exposure to sunlight. Seed 
dispersal mechanisms may be disrupted as a result of urbanization of 
the Zayante sandhills. Residential development may disrupt wind 
pollination events and isolate or extirpate metapopulations of insect 
pollinators. In addition, nonnative plant species, including Cystisus 
striatus (Portuguese broom) and Carpobrotus chilensis (sea fig), are 
out-competing native species and encroaching on sites occupied by the 
Zayante band-winged grasshopper (Rigney 1999). Pesticides and over-
collection are also recognized as potential threats to the Zayante 
band-winged grasshopper (USFWS 1998).

Previous Federal Action

    On July 16, 1992, Dr. David Weissman, of the California Academy of 
Sciences, petitioned us to list the Zayante band-winged grasshopper as 
an endangered species. During our status review of the Zayante band-
winged grasshopper, we examined the available literature and data on 
the species' life history, ecology, locality records, and range. 
Sources of information on the status of and threats to the Zayante 
band-winged grasshopper include reports supplied by proponents of the 
listing, plans supplied by reviewing agencies for development projects, 
and published and unpublished data from scientists with expertise on 
the species and its habitat needs.
    On May 10, 1994, we published a proposed rule in the Federal 
Register (59 FR 24112) to list the Zayante band-winged grasshopper and 
two other insect species as endangered. The proposed rule constituted 
the final finding for the petitioned actions for the Zayante band-
winged grasshopper in accordance with section 4(b)(3)(B)(ii) of the 
Endangered Species Act (Act) of 1973, as amended (16 U.S.C. 1531 et 
seq.). Publication of the proposed rule opened a 60-day public comment 
period through July 11, 1994, to allow submission of new and additional 
information on the species and written comments from the public. We 
held a public hearing on July 18, 1994, in Santa Cruz, California, that 
included presentations of oral testimony and written comments. We 
published a notice on September 1, 1994 (59 FR 45254), reopening the 
public comment period through October 31, 1994, to allow submission of 
additional comments and information concerning the proposed rule.
    Using information received during the cited public comment periods, 
we published a final rule on January 24, 1997 (62 FR 3616), determining 
the Zayante band-winged grasshopper and Mount Hermon June beetle 
(Polyphylla barbata), both occurring within the Zayante sand hills 
habitat, to be endangered species. At the time of listing, we concluded 
that designation of critical habitat for the Zayante band-winged 
grasshopper was not prudent. On September 30, 1997, we made a draft 
recovery plan for the Zayante band-winged grasshopper, Mount Hermon 
June beetle, and three plants (Chorizanthe pungens var. hartwegiana 
(Ben Lomond spineflower), Erysimum teretifolium (Ben Lomond 
wallflower), and Chorizanthe robusta var. hartwegii (Scotts Valley 
spineflower)) available for public comment (62 FR 51126). We published 
the final recovery plan in September 1998.
    At the time of listing, we concluded that designation of critical 
habitat for the Zayante band-winged grasshopper was not prudent because 
such designation would not benefit the species since all known 
populations of the species occur on non-Federal lands where Federal 
involvement in land-use activities would not generally occur. Since 
this time, we have determined that designating critical habitat can 
provide educational benefits by formally identifying those areas 
essential to the conservation of the species. These areas are also 
identified in the recovery plan as the focus of our recovery efforts 
for the Zayante band-winged grasshopper.
    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 Court of California against 
the U.S. Fish and Wildlife Service and Bruce Babbitt, Secretary of the 
Department of the Interior, for failure to designate critical habitat 
for seven species--the Alameda whipsnake (Masticophis lateralis 
euryxanthus), the Zayante band-winged grasshopper, the Morro 
shoulderband snail (Helminthoglypta walkeriana), the arroyo 
southwestern toad (Bufo microscaphus californicus), the San Bernardino 
kangaroo rat (Dipodomys merriami parvus), the spectacled eider 
(Somateria fischeri), and the Steller's eider (Polysticta stelleri) 
(Southwest Center for Biological Diversity v. U.S. Fish and Wildlife, 
CIV 99-1003 MMC). On November 5, 1999, William Alsup, U.S. District 
Judge, dismissed the plaintiffs' lawsuit according to a settlement 
agreement entered into by the parties. Consistent with the settlement 
agreement, we proposed critical habitat for the Zayante band-winged 
grasshopper (65 FR 41917) on July 7, 2000.
    The comment period for this proposal closed on September 5, 2000. 
On December 6, 2000, we published a notice (65 FR 76207) announcing the 
reopening of the comment period on the draft proposal to designate 
critical habitat for the Zayante band-winged grasshopper and a notice 
of availability of the draft economic analysis on the proposed 
determination. The comment period was opened for an additional 15 days, 
closing on December 21, 2000.

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 a species at the time it is listed, upon a determination 
that such areas are essential for the conservation of the species. 
``Conservation'' means the use of all methods and procedures that are 
necessary to bring an endangered or a threatened species to the point 
at which listing under the Act is no longer necessary.
    Critical habitat receives protection under section 7 of the Act 
through the

[[Page 9222]]

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 consultation 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.
    To be included in a critical habitat designation, the 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, as 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), that 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 (Vol. 59, p. 
34271), provides criteria, establishes procedures, and provides 
guidance to ensure that decisions made by the Service 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, unpublished materials (i.e., gray literature), 
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 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

    In determining areas that are essential to conserve the Zayante 
band-winged grasshopper, we included data from research and surveys 
published in peer-reviewed articles and unpublished reports, data 
submitted by biologists holding section 10(a)(1)(A) recovery permits, 
data from monitoring reports required for incidental take permits under 
section 10(a)(1)(B) of the Act, soil maps, and the recovery criteria 
outlined in the recovery plan (USFWS 1998). The area we are designating 
as critical habitat currently provides those habitat components 
essential for the primary biological needs of the Zayante band-winged 
grasshopper, as defined by the primary constituent elements, and 
maintains ecosystem functions on which the grasshopper depends.

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 designate as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific and commercial data available and to consider those 
physical and biological features (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, air, light, minerals, and other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, rearing (or development) of offspring; 
protection from disturbance; and habitats that are representative of 
the historic geographical and ecological distributions of a species.
    The primary constituent elements for the Zayante band-winged 
grasshopper are those physical and biological features that provide 
conditions that are essential for the primary biological

[[Page 9223]]

needs of thermoregulation, foraging, sheltering, reproduction, and 
dispersal. The primary constituent elements are--(a) the presence of 
Zayante soils, (b) the occurrence of Zayante sand hills habitat and the 
associated plant species, and (c) certain microhabitat conditions, 
including areas that receive large amounts of sunlight, widely 
scattered tree and shrub cover, bare or sparsely vegetated ground, and 
loose sand (Arnold 1999a,b). Zayante sand hills habitat is often 
characterized by plant species associated with ponderosa pine sand 
parkland and/or silverleaf manzanita mixed chaparral as described by 
Marangio (1985) and Lee (1994). Plant species that may occur within the 
boundaries include, but are not limited to--Pinus ponderosa (ponderosa 
pine), Arctostaphylos silvicola (silver-leafed manzanita), Ceonothus 
sp. (California lilac), Adenostoma sp., Eriodictyon sp. (yerba santa), 
Minuartia sp. (sandwort), Calyptridium umbellatum (pussypaws), Mimulus 
rattanii (monkeyflower), Lupinis bicolor (miniature lupine), Gilia 
tenuiflora (gilia), Lessingia filaginifolia (California aster), 
Eriogonum nudum ssp. decurrens (Ben Lomond buckwheat), Erysimum 
teretifolium (Ben Lomond wallflower), and Chorizanthe pungens var. 
hartwegiana (Ben Lomond spineflower) (Lee 1984, USFWS 1998, McGraw in 
litt. 1999). Of these plant species, Erysimum teretifolium (Ben Lomond 
wallflower) and Chorizanthe pungens var. hartwegiana (Ben Lomond 
spineflower) are also federally listed as endangered and are addressed 
within the same recovery plan as the Zayante band-winged grasshopper 
and the Mount Hermon June beetle.
    Areas where surveys for Zayante band-winged grasshopper have not 
been conducted, but are adjacent or contiguous with known occupied 
habitat, are also essential to the species. Not only is it likely that 
these areas contain grasshoppers, the areas are necessary because 
they--(1) provide and maintain the ecosystem functions, including, but 
not limited to, hydrologic processes, succession, seed dispersal, and 
natural disturbance regimes, necessary to support populations of the 
Zayante band-winged grasshopper; (2) provide a means of connecting 
occupied areas so that the deleterious effects of isolation are 
minimized; and (3) increase the area available to the species in case 
of localized, random catastrophic events, thus decreasing the potential 
for extirpation of populations.

Criteria Used To Identify Critical Habitat

    In an effort to identify areas essential for the conservation of 
the species, we evaluated information on Zayante soils, plant 
communities associated with these soils, and the distribution, life 
history, and habitat requirements of the Zayante band-winged 
grasshopper. Using a geographic information system (GIS), maps of the 
Zayante soil series were generated. We determined that published maps 
of the Zayante soil series were imprecise for our needs and did not 
always account for gradients between soil types. Therefore, a 60-m 
(200-ft) zone was mapped around the soils to account for possible 
inaccuracies in the current maps. We arrived at a 60-m zone based on 
recommendations by the Natural Resources Conservation Service (NRCS), 
the agency familiar with the techniques used to map soils and the 
distribution of Zayante soils (R. Casale, NRCS, USDA, pers comm. 2000).
    Next, the known locations of the Zayante band-winged grasshopper 
were overlaid on the map of Zayante soil series. Areas included within 
the boundaries of critical habitat are those Zayante soils determined 
to be occupied by the grasshopper in past surveys and Zayante soils 
that are contiguous and adjacent to these occupied areas. These 
contiguous or adjacent areas were included because they are unsurveyed 
and are likely to contain grasshoppers, they create patches large 
enough in size to maintain ecosystem functions, and they connect 
habitat patches into a larger area so that populations do not become 
isolated and localized random or catastrophic events do not cause 
smaller populations to be extirpated. Over time, as succession occurs 
and vegetation encroaches on areas currently inhabited by the Zayante 
band-winged grasshopper, populations may disperse into these adjacent 
patches of habitat.
    We considered sites identified in the recovery plan as important 
for the recovery of the Zayante band-winged grasshopper. While recovery 
units were not specifically described, the recovery plan recommends 
protecting the 7 discrete areas of sand parkland (Lee 1994), containing 
the 10 sites then known to be occupied by the species, as one criterion 
for down-listing to threatened status. These seven areas were included 
within the boundaries of the designated critical habitat. Additional 
areas were also included that have the constituent elements for the 
species, because new information about the range, distribution, and 
habitat requirements of the Zayante band-winged grasshopper indicates 
that the species occupies areas that are outside of these seven 
discrete areas and that are not considered sand parkland. Furthermore, 
sand hills habitat adjacent and contiguous with these seven areas is 
essential to maintain landscape level processes, including succession 
and fire regimes as described in the Background section of this rule.
    We determined that approximately 3,620 ha (8,700 ac) of Zayante 
soils are scattered throughout Santa Cruz County. The soils occur from 
west of the community of Bonny Doon east to Corralitos, and from the 
northern portion of Wilder Ranch State Park north to the communities of 
Boulder Creek, Lompico, and Zayante. Several patches are also located 
near and within the City of Scotts Valley. The largest cluster of these 
soils occurs between Highways 9 and 17, surrounding the communities of 
Scotts Valley, Zayante, Lompico, Ben Lomond, Felton, and Mount Hermon. 
Surveyors of the Zayante band-winged grasshopper have focused their 
efforts in this region, and, at present, all of the known locations of 
this species are from this region. Zayante soils located in the eastern 
portion of Santa Cruz County in the vicinity of Corralitos do not 
support vegetation characteristic of the Zayante sand hills habitat.
    We excluded from the designated critical habitat areas that have 
not been surveyed for the Zayante band-winged grasshopper and that are 
not part of a continuous corridor of Zayante soils that include known 
localities of the grasshopper. Although these areas have been excluded, 
we recognize that they may still include habitat presently or 
historically occupied by the Zayante band-winged grasshopper. In 
addition, these unsurveyed areas may include habitat appropriate for 
introduction of Zayante band-winged grasshoppers in the future. If we 
determine that areas outside of the boundaries of the designated 
critical habitat are important for the conservation of this species, we 
may propose these additional areas as critical habitat in the future.
    We defined the boundaries for the designated critical habitat using 
township, range, and section numbers from the public land survey. Our 
minimum mapping unit was \1/4\-section equating to 65 ha (160 ac). We 
overlayed the public land survey on the Zayante soils to be designated 
as critical habitat as defined above. If a \1/4\-section of the public 
land survey included any of these Zayante soils, it was included within 
the boundaries of critical habitat. We designate approximately 4,230 ha 
(10,560 ac) of land as critical habitat for the Zayante band-winged 
grasshopper. Of this area, 1,600 ha (3,950 ac) are lands with Zayante 
soils. The remaining 2,630 ha (6,610 ac) of critical habitat are areas 
that were included due to

[[Page 9224]]

insufficient mapping detail (as described below).
    The Zayante soils occur in a mosaic of island-like and finger-like 
assemblages interspersed with non-Zayante soils. The nature of these 
assemblages combined with our minimum mapping unit of 65 ha resulted in 
having to include 2,630 ha of non-Zayante soils within the boundaries 
of critical habitat. We have displayed the Zayante soils and boundaries 
of the critical habitat on the map at the end of this rule. We did not 
map critical habitat in sufficient detail to exclude all developed 
areas such as towns, housing developments, and other similar lands. 
Furthermore, we recognize that areas with non-Zayante soils do not 
contain the primary constituent elements. Federal actions limited to 
areas within the unit boundaries, that do not contain one or more of 
the primary constituent elements and do not support the processes 
necessary to maintain the required ecosystem functions would not 
trigger a section 7 consultation, unless they affect the species and/or 
the primary constituent elements in adjacent critical habitat.

Critical Habitat Designation

    The approximate area included in the critical habitat designation 
within Santa Cruz County by land ownership is shown in Table 1. Land 
designated as critical habitat is under private, local government, and 
State ownership, and is described within one unit. A brief description 
of this unit is presented below in Table 1.

            Table 1.--Approximate Area Within Santa Cruz County Encompassing Critical Habitat in Hectares (ha) (acres (ac)) by Land Ownership
--------------------------------------------------------------------------------------------------------------------------------------------------------
            County                   Federal land            Local/state land                 Private land                          Total*
--------------------------------------------------------------------------------------------------------------------------------------------------------
Santa Cruz....................  N/A..................  250 ha (610 ac)............  3,980 ha (9,950 ac).............  4,230 ha (10,560 ac)
--------------------------------------------------------------------------------------------------------------------------------------------------------
* Area estimates reflect critical habitat unit boundaries, not the extent of the primary constituent elements within the unit.

Designated Critical Habitat Unit

    The Critical Habitat Unit (Unit) that is designated encompasses 
approximately 4,230 ha (10,560 ac) between Highways 9 and 17. Most of 
the lands designated as critical occur from the southeastern portion of 
Henry Cowell Redwoods State Park west to the City of Scotts Valley and 
north to the communities of Ben Lomond, Lompico, and Zayante. A small 
area designated as critical habitat is located east of Zayante in the 
vicinity of Weston Road.
    Public lands that occur in this Unit include approximately 130 ha 
(310 ac) in Henry Cowell Redwoods State Park, owned and managed by the 
California Department of Parks and Recreation, and all of Quail Hollow 
Park (120 ha (300 ac)), jointly owned and managed by the County of 
Santa Cruz and the California Department of Fish and Game. Areas 
covered in the Revised Habitat Conservation Plan for Quail Hollow 
Quarry (Graniterock 1998) and the Habitat Conservation Plan for Hanson 
Aggregates' Felton Plant (Hanson Aggregates 1999) have been excluded 
from designation as critical habitat. See section ``Relationship to 
Habitat Conservation Plans'' for further discussion of these plans.
    This unit is essential to the recovery of the species because it 
supports all of the populations that are currently known and all of the 
known suitable habitat for the Zayante band-winged grasshopper 
throughout its range. Given the habitat based threats to this species 
summarized above, we believe the area designated requires special 
management considerations or protection.

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 do 
not destroy or adversely modify critical habitat to the extent that the 
action appreciably diminishes the value of the critical habitat for the 
survival and recovery of the species. 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.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR part 402. Section 7(a)(4) of the Act, requires 
Federal agencies to confer with us on any action that is likely to 
jeopardize the continued existence of a proposed species or result in 
destruction or adverse modification of proposed critical habitat. 
Conference reports provide conservation recommendations to assist the 
agency in eliminating conflicts that may be caused by the proposed 
action. 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 destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined at 50 CFR 402.02 as alternative actions 
identified during consultation that can be implemented in a manner 
consistent with the intended purpose of the action, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of critical habitat. Reasonable and prudent alternatives 
can vary from slight project modifications to extensive redesign or 
relocation of the project. Costs associated with implementing a 
reasonable and prudent alternative are similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by

[[Page 9225]]

law. Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat. Conference reports assist the agency in eliminating conflicts 
that may be caused by the proposed action, and may include 
recommendations on actions to eliminate conflicts with or adverse 
modifications to proposed critical habitat. The conservation 
recommendations in a conference report are advisory.
    We may issue a formal conference report if requested by a Federal 
agency. Formal conference reports on proposed critical habitat contain 
an opinion that is prepared according to 50 CFR 402.14, as if critical 
habitat were designated. We may adopt the formal conference report as 
the biological opinion when the critical habitat is designated, if no 
substantial new information or changes in the action alter the content 
of the opinion (see 50 CFR 402.10(d)).
    Activities on Federal lands that may affect the Zayante band-winged 
grasshopper or its critical habitat will require section 7 
consultation. 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 some 
other Federal action, including funding (e.g., Federal Highway 
Administration, Federal Aviation Administration, or Federal Emergency 
Management Agency) 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 adversely 
modify such habitat, or that may be affected by such designation. 
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 Zayante band-winged grasshopper is appreciably reduced. We note 
that such activities may also jeopardize the continued existence of the 
species. Activities that, when carried out, funded, or authorized by a 
Federal agency, may destroy or adversely modify critical habitat 
include, but are not limited to:
    (1) Excavating, compacting, grading, or discing of soil, and 
vegetation removal;
    (2) Grading, mining, or construction;
    (3) Recreational activities that crush and remove vegetation or 
compact soils, including off-trail hiking, horse riding, and off-road 
motorized and non-motorized vehicular use;
    (4) Activities that could lead to the introduction of exotic 
species into critical habitat; and
    (5) Activities that cause erosion of soils.
    Adverse modification or destruction of critical habitat could occur 
if these activities occur within the boundaries of critical habitat or 
outside the boundaries in a manner that indirectly affects critical 
habitat.
    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 adversely 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. In those cases, it is highly unlikely that 
additional modification to the action would be required as a result of 
designating critical habitat. However, critical habitat may provide 
benefits toward recovery when designated in areas currently unoccupied 
by the species. Designation of critical habitat for the Zayante band-
winged grasshopper is not likely to result in a regulatory burden above 
that already in place due to the presence of the listed species. We 
believe that designation of critical habitat would have little effect 
on Federal agencies because no critical habitat occurs on Federal 
lands. Furthermore, the final economic analysis for the designation of 
critical habitat concludes that few if any federally funded or 
federally permitted actions are anticipated to take place in critical 
habitat.
    This section serves in part as a general guide to clarify 
activities that may affect or destroy or adversely modify critical 
habitat. However, specific Federal actions will still need to be 
reviewed by the action agency. If the agency determines the activity 
may affect critical habitat, they will consult with us under section 7 
of the Act. If it is determined that the activity is likely to 
adversely modify critical habitat, we will work with the agency to 
modify the activity to minimize negative impacts to critical habitat. 
We will work with the agencies and affected public early in the 
consultation process to avoid or minimize potential conflicts and, 
whenever possible, find a solution that protects listed species and 
their habitat while allowing the action to go forward in a manner 
consistent with its intended purpose.
    If you have questions regarding whether specific activities will 
constitute adverse modification of critical habitat, contact the Field 
Supervisor, Ventura Fish and Wildlife Office (see ADDRESSES section). 
Requests for copies of the regulations on listed wildlife and inquiries 
about prohibitions and permits may be addressed to the U.S. Fish and 
Wildlife Service, Branch of Endangered Species, 911 N.E. 11th Ave, 
Portland, OR 97232 (telephone 503-231-2063, facsimile 503-231-6243).

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 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

[[Page 9226]]

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 of critical habitat, it will look at the very 
similar concept of jeopardy to the listed species in the plan area. 
Because HCPs, particularly large regional HCPs, address land use within 
the plan boundaries, habitat issues within the plan boundaries will 
have been thoroughly addressed in the HCP and 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.
    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 regional 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, may 
become regional conservation plans that are consistent with the 
recovery of covered species. Many of these 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 Zayante band-winged 
grasshopper 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 broad discretion to exclude 
from critical habitat designation areas 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 
Habitat Conservation Plans (HCPs) for such areas on non-Federal lands.
    Two HCPs have been completed within the range of the Zayante band-
winged grasshopper. Both HCPs are for sand mining operations and both 
provide take authorization for the Zayante band-winged grasshopper. The 
Revised Habitat Conservation Plan for the Quail Hollow Quarry owned and 
operated by Granite Rock Company provides for the permanent protection

[[Page 9227]]

and management of three conservation areas known to be occupied by the 
Zayante band-winged grasshopper and that total 26.3 ha (65.8 ac) in 
area (Graniterock 1998). The Habitat Conservation Plan for the Felton 
Plant owned and operated by Hanson Aggregates provides for the 
permanent protection and management of two habitat set-asides known to 
be occupied by the Zayante band-winged grasshopper and that total 8.5 
ha (21.3 ac) in area (Hanson Aggregates 1999). In addition, both HCPs 
provide minimization measures to reduce the potential impacts of the 
sand-mining operations on the Zayante band-winged grasshopper.
    All habitat for the Zayante band-winged grasshopper that is 
essential to the conservation of the species and is within the HCP 
planning areas is permanently protected in conservation areas and 
habitat set-asides. Habitat that is preserved in the HCP planning areas 
is already managed for the benefit of the grasshopper and other covered 
species under the terms of the plans and associated section 10(a)(1)(B) 
permits. The assurances afforded the Zayante band-winged grasshopper 
through the special management and protections in the implementation 
agreements of approved HCPs are believed to be sufficient to provide 
for the conservation of the grasshopper. Any additional benefit 
provided the grasshopper by designating these lands as critical habitat 
would be minimal at best. Therefore, we have determined that no 
additional private lands within the HCP planning areas warrant 
designation as critical habitat.
    In contrast, 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 HCPs in critical habitat for 
the Zayante band-winged grasshopper include minor, if any, additional 
protection for the Zayante band-winged grasshopper. The benefits of 
excluding HCPs from being designated as critical habitat for the 
Zayante band-winged grasshopper include the 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. We find that 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.
    In the event that future HCPs covering the Zayante band-winged 
grasshopper are developed within the boundaries of designated critical 
habitat, we will work with applicants to ensure that the HCPs provide 
for protection and management of habitat areas essential for the 
conservation of the species by either directing development and habitat 
modification to nonessential areas or appropriately modifying 
activities within essential habitat areas so that such activities will 
not adversely modify the primary constituent elements. The HCP 
development process provides an opportunity for more intensive data 
collection and analysis regarding the use of particular habitat areas 
by the Zayante band-winged grasshopper. 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 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 Zayante band-winged 
grasshopper and appropriate management for those lands. The 
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 Zayante band-winged 
grasshopper as a covered species is ultimately approved, the Service 
will reassess the critical habitat boundaries in light of the HCP. The 
Service will seek to undertake this review when the HCP is approved, 
but funding constraints may influence the timing of such a review.

Summary of Comments and Recommendations

    In the proposed rule dated July 7, 2000 (65 FR 41917), we requested 
interested parties to submit factual reports or information that might 
contribute to development of a final rule. We contacted appropriate 
Federal and State agencies, county and city governments, scientific 
organizations, and other interested parties. We published a legal 
notice of the proposed rule in the Santa Cruz Sentinel on July 16, 
2000, that invited general public comment. The 60-day comment period 
closed on September 5, 2000. On December 6, 2000, we published a notice 
(65 FR 76207) announcing the reopening of the comment period and the 
availability of the draft economic analysis on the proposed designation 
of critical habitat. Again, we contacted all interested parties and 
posted the draft economic analysis on our internet site. The comment 
period was opened for an additional 15 days, closing on December 21, 
2000.
    We requested that three entomologists (biologists who study 
insects) familiar with the species to peer review the proposed critical 
habitat designation. However, only two of the peer reviewers responded 
by the close of the comment periods. Both reviewers provided 
information about the biology of the species and commented on the areas 
proposed as critical habitat. Their comments are addressed in this 
section, and relevant information provided by the reviewers have been 
incorporated into the section titled ``Background.''
    We received a total of 14 written comments during the public 
comment periods. Of those written comments, 3 supported critical 
habitat designation, 8 opposed the designation, and 1 was neutral. Two 
commenters wrote to request additional information, but provided no 
opinion or information regarding the proposed designation. Eleven of 
the written comments were received from private individuals; one was 
from an individual representing a local government. All comments 
received were reviewed for substantive issues and new data regarding 
the proposed critical habitat, the biology of the species, and the 
range and threats to the Zayante band-winged grasshopper. We address 
all comments received during the comment periods under the headings of 
specific issues. The summarized comments and our responses are as 
follows:
    Issue 1: One commenter questioned how we could determine the number 
of insects living in the areas proposed for critical habitat without 
trespassing on private property.
    Our Response: In determining areas that are essential to conserve 
the Zayante band-winged grasshopper, we included data from research and 
surveys published in peer-reviewed articles and unpublished reports, 
data submitted by

[[Page 9228]]

biologists holding section 10(a)(1)(A) recovery permits, data from 
monitoring reports required for incidental take permits under section 
10(a)(1)(B) of the Act, soil maps, and the recovery criteria outlined 
in the recovery plan (USFWS 1998). To the best of our knowledge, the 
site-specific data used from these sources were collected with the 
permission of landowners.
    Issue 2: One commenter identified topics with regards to the food 
plant requirements and dispersal capabilities of the Zayante band-
winged grasshopper that need to be researched. The commenter 
recommended that the designation of critical habitat for the Zayante 
band-winged grasshopper proceed without this additional information, 
but noted that the adequacy and success of the designation could not be 
forecasted without this additional research being conducted.
    Our Response: We recognize that important research questions need 
to be answered with regards to the life history of the Zayante band-
winged grasshopper. We hope to secure funds to conduct such research in 
the future. However, section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12 require that we base critical habitat determinations on 
the best scientific and commercial data available. We used all existing 
information on the biology, life history, habitat requirements, 
dispersal capabilities, and distribution of the Zayante band-winged 
grasshopper and other closely related species that were available at 
this time to designate critical habitat for this species.
    Issue 3: One commenter noted that GIS technology is useful to 
compile distributional data; to determine boundaries of critical 
habitat; to update the designation of critical habitat in the future; 
and to use as an analytical tool to identify suitable habitat, buffers 
zones, and areas of connectivity.
    Our Response: We recognize that GIS is a useful tool for conserving 
species, including the Zayante band-winged grasshopper, for the reasons 
identified by the commenter. We used GIS to identify areas that we are 
designating as critical habitat. We expect to rely on GIS in the future 
to assist us with conservation planning for the Zayante band-winged 
grasshopper.
    Issue 4: One commenter asserted that an environmental impact 
statement on the proposed designation of critical habitat is required 
under the National Environmental Policy Act.
    Our Response: An environmental assessment and/or an environmental 
impact statement as defined by the National Environmental Policy Act of 
1969 need not be prepared in connection with regulations adopted 
pursuant to section 4(a) of the Act. We published a notice in the 
Federal Register outlining our reasons for this determination on 
October 25, 1983 (48 FR 49244). This rule does not constitute a major 
Federal action significantly affecting the quality of the human 
environment.
    Issue 5: Several commenters expressed concern that proposed 
designation of critical habitat will limit development and impose 
economic hardship on private landowners and businesses.
    Our Response: We are sensitive to the concerns of individuals 
concerning their property rights. The designation of critical habitat 
has no effect on non-Federal actions occurring on private land, even if 
the private land is within the boundaries of the designated critical 
habitat. However, the listing of the Zayante band-winged grasshopper as 
endangered does provide the species the protection afforded by the Act 
on both public and private lands. Critical habitat may affect 
activities by private landowners only if the activity involves Federal 
funding, a Federal permit, or other Federal actions. If such a Federal 
nexus exists, we will work with the landowner and appropriate Federal 
agency to attempt to develop a project that can be completed without 
jeopardizing the continued existence of the Zayante band-winged 
grasshopper or adversely modifying its critical habitat.
    Issue 6: One commenter expressed concern that the City of Scotts 
Valley is located within the critical habitat area for the grasshopper 
and may face significant additional costs associated with section 7 
consultations necessitated by the habitat designation. More 
specifically, the commenter stated that local governments, including 
the City of Scotts Valley, would be placed at a disadvantage in 
competing for Federal grant monies to fund redevelopment projects and 
road improvements to be used inside the critical habitat area because 
of the additional administrative burden this designation would place on 
the Federal agency involved.
    Our Response: As stated in the economic analysis, we do not believe 
that designation of critical habitat for the Zayante band-winged 
grasshopper will lead to additional economic hardship on residents and 
businesses within the proposed critical habitat. Previously developed 
areas within the designated critical habitat are exempted from section 
7 consultation requirements. As stated previously in this rule, areas 
of existing features and structures within the unit boundaries, such as 
buildings, roads, aqueducts, railroads, airports, and paved areas do 
not contain one or more of the primary constituent elements and so do 
not support the functions necessary to maintain the required ecosystem 
functions. Federal actions limited to these areas, therefore, are 
exempted from a section 7 consultations, unless they affect the species 
and/or the primary constituent elements in adjacent critical habitat. 
Furthermore, most Federal agencies are very experienced with the 
requirements of the Act. If Federal agencies are funding activities in 
the designated critical habitat area, they would already be involved in 
communication with the Service regarding the significant number of 
other listed species in the area and the potential effects of their 
activities on these species. The existence of critical habitat for the 
Zayante band-winged grasshopper in the same area would probably not 
increase significantly either the cost or complexity of any needed 
interaction with the Service.
    Issue 7: One commenter stated that the Service should refine the 
boundaries of critical habitat by identifying areas of known habitat 
for the Zayante band-winged grasshopper. Without refining these areas, 
the commenter was concerned that the proposed designation is too broad 
and may negatively impact property values and private property rights 
within urban areas.
    Our Response: Due to time constraints resulting from short 
deadlines that were court-mandated, we were unable to map critical 
habitat in sufficient detail in the proposed and final rules to exclude 
all developed areas such as towns, housing developments, and other 
lands unlikely to contain habitat for the grasshopper. As previously 
stated, areas of existing features and structures within the unit 
boundaries, such as buildings, roads, aqueducts, railroads, airports, 
and paved areas do not contain one or more of the primary constituent 
elements and so do not support the functions necessary to maintain the 
required ecosystem functions. Federal actions limited to these areas, 
therefore, are exempted from a section 7 consultations, unless they 
affect the species and/or the primary constituent elements in adjacent 
critical habitat. We will provide technical assistance to Federal 
agencies to determine if the actions they permit, fund or carry out may 
affect the Zayante band-winged grasshopper or the primary constituent 
elements within areas designated as critical habitat.

[[Page 9229]]

Summary of Changes from Proposed Designation

    This final rule to designate critical habitat for the Zayante band-
winged grasshopper does not differ substantially from the previously 
published proposed 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 completed a draft 
economic analysis and made it available to the public for comment (65 
FR 76207). We also completed a final economic analysis that 
incorporated public comment and information gathered since the draft 
analysis. The analysis found that few incremental costs due to the 
critical habitat designation are expected to occur above and beyond 
those associated with the listing of the Zayante band-winged 
grasshopper. We have determined that these economic impacts are minimal 
and do not warrant excluding any areas from the designation. The final 
economic analysis is available to the public at the Ventura Fish and 
Wildlife Office (see ADDRESSES section).

Required Determinations

1. 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 adversely affect an economic sector, productivity, jobs, the 
environment, or other units of government. A cost-benefit and economic 
analysis is not required. The Zayante band-winged grasshopper was 
listed as an endangered species in 1997.
    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 persons unless they are conducting 
activities funded or otherwise sponsored, authorized, or permitted by a 
Federal agency (see Table 2 below).

          Table 2.--Impacts of Zayante Band-Winged Grasshopper Listing and Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                             Activities potentially
         Categories of activities              affected by species    Additional activities potentially affected
                                                listing only \1\          by critical habitat designation \1\
----------------------------------------------------------------------------------------------------------------
Federal Activities Potentially Affected     None (there is no         None.
 \2\.                                        Federal land within the
                                             range of the species).
Private or other non-Federal Activities     Activities that require   None.
 Potentially Affected \3\.                   a Federal action
                                             (permit, authorization,
                                             or funding) and may
                                             remove or destroy
                                             Zayante band-winged
                                             grasshopper habitat by
                                             mechanical, chemical,
                                             or other means (e.g.,
                                             grading, overgrazing,
                                             construction, road
                                             building, herbicide
                                             application,
                                             recreateional use) or
                                             appreciably decrease
                                             habitat value or
                                             quality through
                                             indirect effects (e.g.,
                                             edge effects, invasion
                                             of exotic plants or
                                             animals, fragmentation
                                             of habitat).
----------------------------------------------------------------------------------------------------------------
\1\ These columns represent 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.

    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 adverse 
modification of designated critical habitat would currently be 
considered as ``jeopardy'' under the Act. Accordingly, the designation 
of areas within the geographic range occupied by the Zayante band-
winged grasshopper 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. The designation 
of areas outside the geographic range occupied by the species may have 
incremental impacts on what activities may or may not be conducted by 
Federal agencies or non-Federal persons that receive Federal 
authorization or funding. However, our analysis did not identify any 
significant incremental effects. Non-Federal persons that do not have a 
Federal ``sponsorship'' of their actions are not restricted by the 
designation of critical habitat, although 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 Zayante band-winged grasshopper since the listing in 1997. The 
prohibition against adverse modification of critical habitat is not 
expected to have a significant economic impact. Because of the 
potential for impacts on other Federal agency activities, we will 
continue to review this action for any inconsistencies with other 
Federal agency actions.
    (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 
significant incremental effects.
    (d) This rule will not raise novel legal or policy issues. This 
final determination follows the requirements for determining critical 
habitat contained in the Endangered Species Act.

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

    In the economic analysis, 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 Zayante band-winged grasshopper is not 
expected to have a significant economic impact. As indicated on Table 1 
(see Critical Habitat Designation section), we have designated property 
owned by State and local governments, and private property.
    Within these areas, the types of Federal actions, Federally funded 
or

[[Page 9230]]

authorized activities that we have identified as potential concerns 
are:
    (1) Excavating, compacting, grading, or discing of soil, and 
vegetation removal;
    (2) grading, mining, or construction;
    (3) recreational activities that crush and remove vegetation or 
compact soils, including off-trail hiking, horse riding, and off-road 
motorized and non-motorized vehicular use;
    (4) activities that could lead to the introduction of exotic 
species into critical habitat; and
    (5) activities that cause erosion of soils.
    Some of these activities sponsored by Federal agencies within 
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 
largely required to comply with the protections of the Act, and the 
designation of critical habitat is not anticipated to have significant 
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 final 
determination will have no additional restrictions.

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

    In the economic analysis, we determined whether designation of 
critical habitat would 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 in the economic analysis, 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.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.):
    (a) We believe 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.
    (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.

5. Takings

    In accordance with Executive Order 12630, this rule does not have 
significant takings implications, and a takings implication assessment 
is not required. As discussed above, the designation of critical 
habitat affects only Federal agency actions. This designation will not 
``take'' private property and will not alter the value of private 
property. Additionally, critical habitat designation does not preclude 
development of HCPs and issuance of incidental take permits. Owners of 
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 Zayante band-winged grasshopper.

6. Federalism

    In accordance with Executive Order 13132, the rule does not have 
significant Federalism effects. A Federalism assessment is not 
required. This designation of critical habitat 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 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).

7. Civil Justice Reform

    In accordance with Executive Order 12988, the Department of the 
Interior's Office of the Solicitor has determined that this rule does 
not unduly burden the judicial system and meets the requirements of 
sections 3(a) and 3(b)(2) of the Order. We have made every effort to 
ensure that this final determination contains no drafting errors, 
provides clear standards, simplifies procedures, reduces burden, and is 
clearly written such that litigation risk is minimized.

8. 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 approval under the Paperwork 
Reduction Act is required.

9. National Environmental Policy Act

    We have determined that an Environmental Assessment and/or an 
Environmental Impact Statement as defined by the National Environmental 
Policy Act of 1969 need not be prepared in connection with regulations 
adopted pursuant to section 4(a) of the Endangered Species Act as 
amended. A notice outlining our reason for this determination was 
published 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 the human environment.

10. 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) 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 there are no Tribal lands that are essential for the 
conservation of the Zayante band-winged grasshopper because they do not 
support populations or suitable habitat. Therefore, we are not 
designating critical habitat for the Zayante band-winged grasshopper on 
Tribal lands.

References Cited

    A complete list of all references cited in this final rule is 
available upon request from the Ventura Fish and Wildlife Office (see 
ADDRESSES section).

Author

    The primary author of this notice is Colleen Sculley, 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.

[[Page 9231]]

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 ``grasshopper, Zayante 
band-winged'' under ``INSECTS'' 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
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                   *                  *                  *                  *                  *                  *                  *
Insects
 
                   *                  *                  *                  *                  *                  *                  *
Grasshopper, Zayante Band-winged  Trimerotropis        U.S.A. (CA),.......  NA.................  E                      605      17.95(i)            NA
                                   infantilis.
 
                   *                  *                  *                  *                  *                  *                  *
--------------------------------------------------------------------------------------------------------------------------------------------------------


    3. Amend Sec. 17.95(i) by adding critical habitat for the Zayante 
band-winged grasshopper (Trimerotropis infantilis), in the same 
alphabetical order as the species occurs in Sec. 17.11(h).


Sec. 17.95  Critical habitat--fish and wildlife.

* * * * *
    (i) * * *
* * * * *

ZAYANTE BAND-WINGED GRASSHOPPER (Trimerotropis infantilis)

    1. The unit of critical habitat is depicted for Santa Cruz County, 
California, on the map below.

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[[Page 9232]]

[GRAPHIC] [TIFF OMITTED] TR07FE01.017

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[[Page 9233]]

    2. Within this area, the primary constituent elements for the 
Zayante band-winged grasshopper are those physical and biological 
elements that provide conditions that are essential for the primary 
biological needs of thermoregulation, foraging, sheltering, 
reproduction, and dispersal. The primary constituent elements are--(a) 
the presence of Zayante soils, (b) the occurrence of Zayante sand hills 
habitat and the associated plant species, and (c) certain microhabitat 
conditions, including areas that receive large amounts of sunlight, 
widely scattered tree and shrub cover, bare or sparsely vegetated 
ground, and loose sand. Zayante sand hills habitat is characterized by 
plant species associated with ponderosa pine sand parkland and/or 
silverleaf manzanita mixed chaparral. Plant species that may occur 
within the boundaries include, but are not limited to--ponderosa pine 
(Pinus ponderosa), silver-leafed manzanita (Arctostaphylos silvicola), 
California lilac (Ceonothus sp.), Adenostoma sp., yerba santa 
(Eriodictyon sp.), sandwort (Minuartia sp.), pussypaws (Calyptridium 
umbellatum), Ben Lomond spineflower (Erysimum teretifolium), 
monkeyflower (Mimulus rattanii), miniature lupine (Lupinis bicolor), 
gilia (Gilia tenuiflora), California aster (Lessingia filaginifolia), 
Ben Lomond buckwheat (Eriogonum nudum ssp. decurrens), and Ben Lomond 
spineflower (Chorizanthe pungens var. hartwegiana).
    3. Critical habitat does not include existing developed sites 
consisting of buildings, roads, aquaducts, railroads, airports, paved 
areas, and similar features and structures.
    Santa Cruz County, California. Boundaries are based upon the Public 
Land Survey System. Within the historical boundaries of the Land Grants 
of Zayanta, San Augustin, La Carbonera, and Canada Del Rincon En El Rio 
San Lorenzo De Santa Cruz, 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 the Service from the 
State of California's Stephen P. Teale Data Center. Township and Range 
numbering is derived from the Mount Diablo Base and Meridian. The 
following lands located within Santa Cruz County are being proposed for 
critical habitat: T.9 S., R.1 W., SE\1/4\ sec. 31; T.9 S., R.2 W., 
SE\1/4\ sec. 33, E\1/2\ sec. 34, SW\1/4\ sec. 35, S\1/2\ sec. 3; T.10 
S., R1 W., W\1/2\ sec. 6; T.10 S., R.2 W., sec. 1, S\1/2\ NW\1/4\ sec. 
2, sec. 3, W\1/2\ sec. 4, W\1/2\ sec. 9, sec. 10, sec. 11, sec. 13, 
sec. 14, N\1/2\ SE\1/4\ sec. 15, NE\1/4\ sec. 22, secs. 23-26, N\1/2\ 
sec. 35, sec. 36, excluding all lands covered under the Revised Habitat 
Conservation Plan for the Quail Hollow Quarry and the Habitat 
Conservation Plan for the Hanson Aggregates' Felton Plant.
* * * * *

    Dated: February 1, 2001.
Joseph E. Doddridge,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 01-3129 Filed 2-6-01; 8:45 am]
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