Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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., SE1⁄4

sec. 31; T.9 S., R.2 W., SE1⁄4 sec. 33, E1⁄2

sec. 34, SW1⁄4 sec. 35, S1⁄2 sec. 3; T.10

S., R1 W., W1⁄2 sec. 6; T.10 S., R.2 W.,

sec. 1, S1⁄2 NW1⁄4 sec. 2, sec. 3, W1⁄2 sec.

4, W1⁄2 sec. 9, sec. 10, sec. 11, sec. 13,

sec. 14, N1⁄2 SE1⁄4 sec. 15, NE1⁄4 sec. 22,

secs. 23–26, N1⁄2 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]

BILLING CODE 4310–55–P

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.

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

9234 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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 nonreproductive 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

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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 peerreviewed 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

9236 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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

(1,951 ac)

249 ha

(615 ac)

1,039 ha

(2,566 ac)

Unit 1: Morro Spit and West Pecho

Unit 1 encompasses areas managed by

Montan ̃ a 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

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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 Stateand 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

9238 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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 longterm 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.

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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-bycase 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 longterm 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 longterm 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

9240 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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 finescale, 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

9242 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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 costbenefit 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

Categories of activities Activities potentially affected by species listing only

Additional activities

potentially affected by

critical habitat

designation 1

Federal activities potentially affected 2 .............. Activities conducted by U.S. Army Corps of Engineers (e.g. ordinance removal).None.

Private or other non-Federal activities potentially affected 3.Activities that require a Federal 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.

None.

1This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by listing the species. 2Activities initiated by a Federal agency.

3Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations 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

9244 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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 § 17.11(h), revise the entry for

‘‘Snail, Morro shoulderband (=Banded

dune)’’ under ‘‘SNAILS’’ to read as

follows:

§ 17.11 Endangered and threatened

wildlife.

* * * * *

(h) * * *

Species

Historic range

Vertebrate population where endangered or threatened

Status When listed Critical

habitat

Special

rules Common name Scientific name

*******

SNAILS

*******

Snail, Morro

shoulderband

(=Banded dune).

Helminthoglypta

walkeriana.

U.S.A. (CA) ............. NA E 567 17.95(f) NA

* * * * * **

3. Add § 17.95(f) to read as follows:

§ 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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9246 Federal Register / Vol. 66, No. 26 / Wednesday, February 7, 2001 / Rules and Regulations

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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