[MPWG] FR Notice: Designation of Critical Habitat for Brodiaea filifolia (thread-leaved brodiaea)

Patricia_DeAngelis at fws.gov Patricia_DeAngelis at fws.gov
Tue Dec 13 13:12:21 CST 2005


FYI...

[Federal Register: December 13, 2005 (Volume 70, Number 238)]
[Rules and Regulations]
[Page 73819-73863]
>From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de05-18]
[[Page 73820]]

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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT75

Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Brodiaea filifolia (thread-leaved brodiaea)

AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), are designating
critical habitat for the federally threatened Brodiaea filifolia
(thread-leaved brodiaea) pursuant to the Endangered Species Act of
1973, as amended (Act). In total, approximately 597 acres (ac) (242
hectares (ha)) fall within the boundaries of the critical habitat
designation. The critical habitat is located in Los Angeles and San
Diego counties, California. Lands in Orange, Riverside, and San Diego
counties that are covered by approved and draft habitat conservation
plans are excluded under section 4(b)(2). Lands owned or controlled by
the Department of Defense that are covered by an Integrated Natural
Resource Management Plan (INRMP) that provides a benefit to the species
are exempt from critical habitat under section 4(a)(3) of the Act. As a
result of revisions based on peer and public comments and a re-
evaluation of methodology and mapping, approximately 4,093 ac (1,656
ha) in Los Angeles, San Bernardino, Orange, and San Diego counties
proposed as critical habitat were removed or excluded from this final
designation. Lands designated as critical habitat are under Federal and
private ownership. No Tribal lands are included in this critical
habitat designation.

DATES: This rule becomes effective on January 12, 2006.

ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, are available
for public inspection, by appointment, during normal business hours, at
the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road,
Carlsbad, CA 92011 (telephone 760-431-9440). The final rule, a list of
references cited, the economic analysis, and maps will also be
available on the Internet at <A HREF="http://carlsbad.fws.gov
">http://carlsbad.fws.gov</A>.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and
Wildlife Office, at the above address (telephone 760-431-9440;
facsimile 760-431-9624).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection
to Species

    In 30 years of implementing the Act, the Service has found that the
designation of statutory critical habitat provides little additional
protection to most listed species, while consuming significant amounts
of available conservation resources. The Service's present system for
designating critical habitat has evolved since its original statutory
prescription into a process that provides little real conservation
benefit, is driven by litigation and the courts rather than biology,
limits our ability to fully evaluate the science involved, consumes
enormous agency resources, and imposes huge social and economic costs.
The Service believes that additional agency discretion would allow our
focus to return to those actions that provide the greatest benefit to
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act

    While attention to and protection of habitat is paramount to
successful conservation actions, we have consistently found that, in
most circumstances, the designation of critical habitat is of little
additional value for most listed species, yet it consumes large amounts
of conservation resources. Sidle (1987) stated, ``Because the Act can
protect species with and without critical habitat designation, critical
habitat designation may be redundant to the other consultation
requirements of section 7.'' Currently, only 470 species or 37.5
percent of the 1,253 listed species in the U.S. under the jurisdiction
of the Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through
conservation mechanisms such as listing, section 7 consultations, the
Section 4 recovery planning process, the Section 9 protective
prohibitions of unauthorized take, Section 6 funding to the States, and
the Section 10 incidental take permit process. The Service believes
that it is these measures that may make the difference for the
conservation of many species.
    We note, however, that the August 6, 2004, Ninth Circuit judicial
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife
Service, found our definition of adverse modification was invalid. In
response to the decision, the Director has provided guidance to the
Service based on the statutory language. In this rule, our analysis of
the consequences and relative costs and benefits of the critical
habitat designation is based on application of the statute consistent
with the Ninth Circuit's ruling and the Director's guidance.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that
the limited listing funds are used to defend active lawsuits, to
respond to Notices of Intent (NOIs) to sue relative to critical
habitat, and to comply with the growing number of adverse court orders.
As a result, listing petition responses, the Service's own proposals to
list critically imperiled species and final listing determinations on
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left
the Service with almost no ability to provide for adequate public
participation or to ensure a defect-free rulemaking process before
making decisions on listing and critical habitat proposals due to the
risks associated with noncompliance with judicially imposed deadlines.
This in turn fosters a second round of litigation in which those who
fear adverse impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
additional protection to listed species.
    The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment and, in some cases, the costs of compliance with the
National Environmental Policy Act (NEPA). None of these costs result in
any benefit to the species that is not already afforded by the
protections of the Act enumerated

[[Page 73821]]

earlier, and they directly reduce the funds available for direct and
tangible conservation actions.

Background

    By 1998, when the species was listed, at least 25 percent of the
known Brodiaea filifolia populations or occurrences had been eliminated
by urbanization and agricultural conversion (63 FR 54975, October 13,
1998). Urban development continues to be a threat to this species.
Habitat for the species is also threatened by off-road vehicle use;
non-agricultural grading and disking for weed control; clearing for
firebreaks; alteration of existing hydrologic conditions resulting from
construction and operation of flood control structures; over-grazing;
and competition from non-native plant species (USFWS 1998, RECON 1999,
CNDDB 2005). Occurrences of B. filifolia in Orange County and some in
San Diego County are threatened by the perennial Cynara cardunculus
(artichoke thistle or cardoon) (CNDDB 2005). B. filifolia and its
habitat are also threatened by dumping of manure and sewage sludge on
occupied habitat along the San Jacinto River in western Riverside
County (Roberts in litt. 2005). This material can alter the soil
chemistry and lead to changes in the vegetation sustainable on the sites.

Previous Federal Actions

    For more information on previous Federal actions concerning
Brodiaea filifolia, refer to the final rule listing the species as
threatened, published in the Federal Register on October 13, 1998 (63
FR 54975), and the proposed critical habitat designation published in
the Federal Register on December 8, 2004 (69 FR 71284). A recovery plan
for B. filifolia has not yet been completed. The following text
discusses Federal actions that occurred subsequent to the listing.
    On November 15, 2001, a lawsuit was filed against the Department of
the Interior (DOI) and the Service by the Center for Biological
Diversity and California Native Plant Society, challenging our ``not
prudent'' determinations for eight plants, including Brodiaea filifolia
(Center for Biological Diversity et al. v. Department of the Interior
et al., CV 01-2101). A second lawsuit asserting the same challenge was
filed by the Building Industry Legal Defense Foundation (BILD) on
November 21, 2001 (Building Industry Legal Defense Foundation v.
Department of the Interior et al., CV 01-2145). Both cases were
consolidated on March 19, 2002, and all parties agreed to remand the
critical habitat determinations to the Service for additional
consideration. On July 1, 2002, the U.S. District Court for the
Southern District of California directed us to publish a new prudency
determination and, if prudent, propose critical habitat for B.
filifolia on or before November 30, 2004, and to publish a final rule
on or before November 30, 2005.
    In the final listing rule, we determined that critical habitat was
not prudent for Brodiaea filifolia because such designation would
provide no benefit over that provided by listing on private property
where the species occurs (63 FR 54975). The courts have ruled that, in
the absence of a finding that the designation of critical habitat would
increase threats to a species, the existence of another type of
protection, even if it offers potentially greater protection to the
species, does not justify a ``'not prudent''' finding (Conservation
Council for Hawaii v. Babbitt 2 F. Supp. 2d 1280). Accordingly, we
withdrew our previous determination that the designation of critical
habitat was not prudent for B. filifolia and determined that critical
habitat designation for this species is prudent. We had sufficient
information necessary to identify specific features essential to the
conservation of B. filifolia and proposed critical habitat for this
species on December 8, 2004 (69 FR 71284). With the publication of this
rule, we are designating final critical habitat for B. filifolia in
compliance with the court's order.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies,
scientific organizations, and other interested parties and invited them
to comment on the proposed critical habitat designation. We also
invited public comment through the publication of notices on December
17, 2004, in The Press-Enterprise, Riverside, CA; San Diego Union-
Tribune, San Diego, CA; Orange County Register, Santa Ana, CA; and the
Los Angeles Times, Los Angeles, CA. The initial comment period ended
February 7, 2005. There were no requests for public hearings.
    During the comment period that opened on December 8, 2004, and
closed on February 7, 2005, we received 19 comment letters directly
addressing the proposed critical habitat designation: 4 comment letters
were received from 3 peer reviewers, 2 from Federal agencies, and 13
from organizations or individuals. We received 2 additional comment
letters that were illegible. We attempted to contact the authors of the
letters but received no response; therefore, we could not consider the
information. Thirteen commenters supported the designation of critical
habitat for Brodiaea filifolia, and three opposed the designation.
Three letters included comments or information, but did not express
support or opposition to the proposed designation.
    A second comment period to consider the draft economic analysis of
proposed critical habitat for Brodiaea filifolia opened on October 6,
2005, and closed on October 20, 2005. During the comment period we
received 6 letters: 5 from organizations or individuals and 1 from a
local government agency. In opening the comment period on the draft
economic analysis, we also reopened the comment period on our critical
habitat proposal. Comments received during both comment periods were
grouped into general issue categories relating to the proposed
designation or the draft economic analysis.

Peer Review

    In accordance with our joint policy published on July 1, 1994 (59
FR 34270), we solicited review of our proposed rule from at least three
appropriate independent specialists/experts. The purpose of such review
is to ensure our final designation is based on scientifically sound
data, assumptions, and analyses. We solicited peer review from four
knowledgeable individuals with scientific expertise that included
familiarity with the species, the geographic region in which the
species occurs, and conservation biology principles. We received
responses from three of the peer reviewers. The peer reviewers
supported the designation; however, they expressed concern about errors
and omissions in the proposal, including the exclusion of critical
habitat on lands covered by Habitat Conservation Plans (HCP). Comments
from peer reviewers and other commenters are addressed in the following
summary, and corrections and information are incorporated into the
final rule as appropriate.

Peer Reviewer Comments Related to Previous Federal Actions, the Act,
and Implementing Regulations

    Similar comments that were received from other commenters are
addressed in this section to avoid redundancy.
    (1) Comment: Two peer reviewers requested that we provide a review
of the unique status of plants under the Act, including the limited
protection plants are provided under section 9 of the Act and the pros
and cons of critical habitat designation for plants. Another

[[Page 73822]]

commenter indicated that Brodiaea filifolia receives substantial
protection under the California Endangered Species Act (CESA) and the
California Environmental Quality Act (CEQA) and does not require
special management considerations or protection.
    Our Response: Brodiaea filifolia is listed as an endangered species
under the CESA. This allows the species to receive greater attention
during the land use planning process by local governments, public
agencies, and landowners. State listed plants are protected from
removal, except by permit or agreement from the California Department
of Fish and Game (CDFG). However, listing under the CESA doesn't remove
all conservation threats to the species. Areas that contain features
essential to the conservation of B. filifolia and that may require
special management considerations or protection would still warrant
critical habitat designation under the Act. The benefits and
limitations of critical habitat designation for B. filifolia are
addressed in several different sections throughout this document,
including the ``Effects of Critical Habitat Designation,'' and
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and
Exclusions Under Section 4(b)(2) of the Act.''

Peer Reviewer Comments Related to Life History, Habitat
Characteristics, and Ecological Considerations

    (2) Comment: Three peer reviewers and five other commenters
provided additional information, clarifications, and references for
aspects of the biology, associated vegetation, and soil preferences of
Brodiaea filifolia. One peer reviewer considered ours an excellent
overview of the biology of the species but lacking two references they
cited.
    Our Response: We appreciate additional information and
clarification and, where appropriate, we have incorporated this into
the final rule.
    (3) Comment: One peer reviewer and one individual stated that we
should have cited more recent information, including the California
Natural Diversity Database (CNDDB), regarding the historical range of
Brodiaea filifolia, pointing out that some new occurrences have been
discovered.
    Our Response: In developing the proposed rule we used data compiled
from the CNDDB database in 2003 as well as an update in 2004 (CNDDB
2003; 2004). This is a running database that includes periodic updates
of existing occurrence information and new occurrence records. There
was one occurrence of Brodiaea filifolia identified in the 2004 update
of the CNDDB that we overlooked. This occurrence is located in an
unincorporated area of central San Diego County near Lake Hodges.
Fortunately, this occurrence of about 688 plants is being conserved
under a Minor Amendment to the San Diego County MSCP.
    Another occurrence in the same area was not entered into the CNDDB
until April 6, 2005 (CNDDB 2005); therefore, we were not able to
consider it in the proposed rule. It is not possible to include an area
in this final critical habitat designation that was not identified in
the proposed rule. Because we are under a court deadline to complete
this final rule, the publication of a revised proposed rule to include
this area for public review and comment could not have been completed
in time to comply with the court's deadline.
    (4) Comment: One peer reviewer cites the dumping of sewage sludge
as the most serious threat to Brodiaea filifolia along the San Jacinto
River habitat in Riverside County. The peer reviewer also stated that
these deposits alter the soil chemistry.
    Our Response: This comment is appreciated and a discussion of this
threat has been incorporated into the ``Background'' section of this
final rule.
    (5) Comment: A peer reviewer and two individuals provided differing
views on the issue of translocation. One view asserted that
translocation may not have a high chance for success. The other
perspective considers it premature to state that translocation is a
threat to the species. One peer reviewer requested that we discuss all
of the translocated populations.
    Our Response: We are uncertain about the long-term viability of
translocated populations and their contribution to the species as a
whole, therefore, we did not specifically include them in this
designation. However, translocated populations may contribute to the
long-term survival and recovery of the species. Additional long-term
monitoring for genetic diversity and the reproductive impact of these
populations is warranted. Only issues specifically related to the
critical habitat designation are discussed in this final rule,
therefore, we have not included a broad overview of translocated
populations in this document.

Peer Reviewer Comments Related to Critical Habitat, Primary Constituent
Elements, and Methodology

    (6) Comment: Two peer reviewers and two other commenters expressed
concern about errors and lack of attribution to citations in the
proposed rule, suggesting that it be rewritten and re-released. Several
questions, additions, and corrections to statements and information
relating to proposed critical habitat units were provided by peer
reviewers and other commenters.
    Our Response: Because of a court deadline to complete this final
rule, we could not publish a revised proposed rule for public review
and comment in time to comply with the court's deadline. One of the
purposes of releasing the proposed rule and draft economic analysis for
public review and comment is to obtain substantive information and
materials related to the proposed critical habitat designation. We
appreciate receiving additional information, corrections, and
clarifications that were useful in our re-evaluation of the proposed
units and unit descriptions. Where appropriate, we have included this
information and answers to specific questions in the final rule. See
the ``Summary of Changes from Proposed Rule'' section for a review of
changes in the final designation.
    (7) Comment: One peer reviewer stated that we did not provide
information on our reasoning for proposing critical habitat in a number
of locations in Riverside and San Diego counties.
    Our Response: We have re-evaluated areas included in proposed
critical habitat. This final designation reflects mapping refinements,
our re-evaluation of proposed areas under section 3(5)(A), and
exclusions under sections 4(a)(3) and 4(b)(2) of the Act. Please refer
to the ``Criteria Used to Identify Critical Habitat,'' and the
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3) and
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (8) Comment: Two peer reviewers suggested literature citations,
with one requesting that we cite final versions rather than draft
documents, and the other requesting that the references cited list be
published with the text of the rule and posted on the Internet.
    Our Response: Where appropriate, we have incorporated these
suggestions in this rule. We cite the most current version of documents
available. As stated in the ``References Cited'' section of the rule, a
list of references cited is available upon request from the Carlsbad
Fish and Wildlife Office. We will also make this list available on the
Internet at <A HREF="http://carlsbad.fws.gov
">http://carlsbad.fws.gov</A>.
    (9) Comment: One peer reviewer and a public commenter questioned
our use of a draft version of Bramlet and White 2004 (erroneously cited
as White and Bramlet 2004 in the proposed rule).

[[Page 73823]]

    Our Response: We referred to a working table of occurrences (Table
3) during the preparation of the proposed rule. The information in this
table was considered to be one of the best available on the occurrences
of Brodiaea filifolia. Only occurrences corroborated from other sources
are considered in this final rule.
    (10) Comment: Two peer reviewers and two public commenters
variously stated that the section of the proposed rule titled
``Designation of Critical Habitat Provides Little Additional Benefit to
Species'' is generic, editorializing, out of place in a proposal, and
political. One commenter wanted us to point to the research that
specifically justifies this claim in relation to Brodiaea filifolia.
    Our Response: The section referenced by the commenters is intended
to be a general statement regarding our position on the designation of
critical habitat. As discussed in the preamble of this and other
critical habitat designation rules, we believe that, in most cases,
conservation mechanisms provided through section 7, the section 4
recovery planning process, the section 9 protective prohibitions of
unauthorized take, section 6 funding to the States, the section 10
incidental take permit process, and cooperative programs with private
and public landowners and Tribes provide greater incentives and
conservation benefits than does the designation of critical habitat.
    (11) Comment: One peer reviewer and one commenter requested a
definition of PCE. They also suggested clarifications for PCEs relating
to habitat descriptions, soil types, slopes, and associated vegetation
types.
    Our Response: As stated in the ``Primary Constituent Elements''
(PCE) section of the proposed rule (69 FR 71284), PCEs are those
physical or biological features essential to the conservation of a
species, and that may require special management considerations or
protection. The PCEs for Brodiaea filifolia were based on the best
available information relating to the species' occurrences and its soil
and vegetation associations. Please refer to the ``Methods'' section of
this final rule for a discussion of all information sources used to
define the PCEs for B. filifolia.
    (12) Comment: Two peer reviewers noted the ability of Brodiaea
filifolia to persist on disturbed, degraded, or disked sites and the
suitability of these sites if allowed to recover, especially by natural
flooding processes.
    Our Response: It is likely that some areas supporting occurrences
of Brodiaea filifolia have been degraded to some degree. The areas
included in proposed critical habitat and areas excluded from proposed
designation under section 4(b)(2) of the Act were identified as being
occupied and containing the physical or biological features essential
to the conservation of the species. Lands included in this final
designation are occupied and contain the features essential to the
conservation of B. filifolia. Please refer to the ``Application of
Section 3(5)(A), Exemption Under 4(a)(3), and Exclusions Under Section
4(b)(2) of the Act'' section for information about areas removed,
exempted, or excluded from critical habitat.
    (13) Comment: Two peer reviewers and three other commenters
provided information and suggestions related to the species' biology,
habitat description, and condition, as well as boundaries of the
critical habitat subunits and areas containing habitat with features
essential to the conservation of this species that were excluded from
critical habitat in our proposal. One peer reviewer also noted that
some units included unsuitable habitat. One commenter recommended we
change the configuration of boundaries in the Rancho Santalina/Loma
Alta subunit to better represent the areas containing features
essential to the conservation of Brodiaea filifolia.
    Our Response: We appreciate the information and suggestions from
these commenters and, where appropriate, we have incorporated the
information on subunit descriptions into this final rule. Some of the
commenters discussed making the boundaries of critical habitat subunits
and areas containing habitat with features essential to the
conservation of this species more precise. We made such changes where
appropriate. We have attempted to map the boundaries to exclude
developed land; however, we may not have been able to exclude all
developed land or land that does not contain the PCEs. Any such
structures and the land under them inadvertently left inside the mapped
critical habitat boundaries have been excluded in the text portion of
the rule, and are not designated as critical habitat. Federal actions
limited to these areas would not trigger section 7 consultations,
unless they affect the species and/or primary constituent elements in
adjacent critical habitat.
    Some commenters suggested including additional areas in the
proposed subunits or making boundary adjustments in areas containing
features essential to the conservation of the species that were
excluded from proposed designation. However, these commenters did not
provide sufficient site-specific data for us to adequately evaluate
their recommendations. We reviewed the proposed Santalina/Loma Alta
subunit and determined it does not meet the definition of critical
habitat under section 3(5)(A) of the Act. Please refer to the section
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (14) Comment: Two peer reviewers and one commenter questioned our
use of occurrences with 1,000 or more plants as a measure of whether an
area contained habitat with features essential to the conservation of
Brodiaea filifolia. One commenter questioned the science behind our
decision not to propose all occurrences of B. filifolia in Orange and
San Diego counties as critical habitat.
    Our Response: In developing our proposal, we relied on several
types of information to determine whether an occurrence of Brodiaea
filifolia was considered significant. As outlined in the ``Criteria
Used to Identify Critical Habitat'' section, we evaluated population
estimates, soil types, associated vegetation, and elevation. We also
evaluated the location of occurrences in relation to the range of the
species. For example, occurrences that supported less than 1,000
plants, but which were on alkali playas were considered to be
significant. For an explanation of why more areas in Orange and San
Diego counties were not included in the final designation, please refer
to the ``Application of Section 3(5)(A), Exemption Under Section
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' portion of
this rule.
    (15) Comment: One peer reviewer and one individual questioned the
value of including small units (e.g., 6b (Mesa Drive)), or those with
few plants (e.g., subunits 4d (Prima Deschecha), 4f (Talega/Segunda
Deschecha), and 6a (Alta Creek)) as critical habitat.
    Our Response: We considered occurrence information, soil types,
vegetation association and other factors in our re-evaluation of
proposed subunits. As a result of our re-evaluation, several proposed
subunits, including 4d, 4f, and 6a, were removed from final
designation. Subunit 6b (Mesa Drive) is relatively small, covering
about 5 ac (2 ha), but it supports a significant occurrence of Brodiaea
filifolia and contains features essential to the conservation of the
species; therefore, it was included in proposed critical habitat.
However, subunit 6b was excluded from final designation under section
4(b)(2) of the Act. Please see the ``Summary of Changes from Proposed
Rule,'' and

[[Page 73824]]

``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and
Exclusions Under Section 4(b)(2) of the Act'' sections for more
information.
    (16) Comment: One peer reviewer recommended that we add Domino or
Chino alkali soils to the description of PCEs because Brodiaea
filifolia occurs on these soil types in Riverside County.
    Our Response: We have reviewed this information and have included
these soil types in our definition of the PCEs for Brodiaea filifolia.
    (17) Comment: Two peer reviewers and one Federal agency commenter
questioned our inclusion of subunits 5a (Miller Mountain) and 5b (Devil
Canyon) in proposed critical habitat because most plants in subunit 5a
and some in subunit 5b are hybrids between Brodiaea filifolia and
Brodiaea orcuttii. One peer reviewer noted that hybrids occur in the
City of San Marcos and on Marine Corps Base, Camp Pendleton (Camp
Pendleton), although specific numbers and locations were not provided.
One peer reviewer stated that plants in areas containing features
essential to the conservation of the species in Riverside County are
prone to hybridization. Another commenter, knowledgeable about the
genetics of Brodiaea, stated that B. filifolia and B. orcuttii form a
unique line and could hybridize only with each other.
    Our Response: We acknowledge that within subunits 5a and 5b, there
are substantial numbers of plants that are hybrids of Brodiaea
filifolia and Brodiaea orcuttii (Boyd et al. 1992). The population in
subunit 5a is considered to be largely hybridized and we cannot
determine that they can be considered as contributors to the long-term
conservation of the species; therefore, we removed this subunit from
consideration. Although plants in subunit 5b also show some
hybridization, the extent of the hybridization is less. The occurrence
of B. filifolia in subunit 5b is significant and is found at one of the
highest elevations within the range of the species. We have included
the portion of land in subunit 5b that is occupied by B. filifolia and
contains features essential to the conservation of the species in this
final designation. Please see the ``Summary of Changes from Proposed
Rule'' and ``Application of Section 3(5)(A), Exemption Under Section
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act,'' and ``Unit
Descriptions'' sections for more information.
    We are aware of a CNDDB (Element Occurrence 10) report in the City
of San Marcos that included a reference to the possible presence of
hybrids between Brodiaea filifolia and B. jolonensis. This area was
identified as subunit 8d (Upham) in our proposed rule. It has been
reported that putative hybrid individuals of B. filifolia and another
species that has been erroneously referred to B. jolonensis occur on
the site (Armstrong 2005). Though these hybrid plants exhibit
intermediate characteristics between the two theorized parental
species, a third species, B. orcuttii, also grows nearby within the
unit. According to Armstrong (2005), the hybrid plants appeared to be a
``clonal population'' restricted to ``a one acre area at the southwest
end of the property'' and that these individuals ``probably reproduced
asexually through cormlets.'' Although Armstrong (2005) found
``numerous B. filifolia, B. orcuttii, and (the material referred to as
B. jolonensis)'' growing within the unit in May 2005, he failed to
observe any of the hybrid plants. As a result, although putative
hybridization has been reported for this unit, hybrid plants are either
no longer present or they represent an undetectable, small fraction of
the overall population of B. filifolia. The occurrence of B. filifolia
in this subunit is estimated to support about 1,000 plants and contains
features essential to the conservation of the species.
    We were not able to confirm the commenter's reference to hybrids on
Camp Pendleton.
    (18) Comment: One peer reviewer considered the mapping of lands in
Riverside County that were excluded from proposed critical habitat to
be inadequate. One individual requested UTMs for these same areas.
    Our Response: As stated in the proposed rule, maps of the areas in
Riverside County containing features essential to the conservation of
Brodiaea filifolia that were excluded under section 4(b)(2) of the Act,
based on conservation measures outlined in the Western Riverside County
Multiple Species Habitat Conservation Plan (MSHCP), were available on
our Web site. We believe that the general public finds these maps more
useful than the UTM coordinates. Also, GIS layers of the areas proposed
for critical habitat designation as well as areas excluded from
proposed critical habitat are available upon request from our office.
We will clarify the availability of this information in future critical
habitat rules.
    (19) Comment: One peer reviewer expressed the importance of
designating critical habitat for Brodiaea filifolia in irregularly
flooded bottomland areas of the San Jacinto River floodplain because of
concerns that alteration of the floodplain could adversely modify a
significant portion of the Riverside County occurrences of the plant
and eliminate a unique element of the species' habitat associations
(i.e., plants adapted to alkali soils). The reviewer stated that
designation of critical habitat in the San Jacinto River floodplain
area would strengthen the regulatory effectiveness of section 7 by
adding ``adverse modification'' to the jeopardy standard available to


 other types of cooperative efforts beneficial to

[[Page 73829]]

the conservation of listed species if their property was proposed for
inclusion in critical habitat. We work with HCP applicants to ensure
that their plans meet the issuance criteria and that the designation of
critical habitat on lands where an HCP is in development does not delay
the approval and implementation of the HCP. Additionally, HCPs include
conservation actions for covered species whether or not the area is
designated as critical habitat.
    (46) Comment: One commenter wanted to know how we determined that
the benefits of excluding HCP areas from critical habitat outweigh the
benefits of their inclusion.
    Our Response: We refer the reader to the ``Application of Section
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section
4(b)(2) of the Act'' section for an explanation of how we have weighed
the benefits of including or excluding critical habitat for Brodiaea
filifolia on lands covered by HCPs.

Comments Related to Economic Analysis; and Other Relevant Impacts

    (47) Comment: Two commenters criticized our failure to include the
economic analysis with the critical habitat proposal and one of these
commenters also noted the lack of an EIS and National Environmental
Policy Act (NEPA) analysis.
    Our Response: We published our proposed designation of critical
habitat for Brodiaea filifolia in the Federal Register on December 8,
2004 (69 FR 71284). At that time, our Division of Economics and their
consultants initiated preparation of a draft economic analysis of the
proposed designation. The draft economic analysis was released for
public review and comment on October 6, 2005 (70 FR 58361), and we
accepted comments on both the draft economic analysis and proposed rule
until October 20, 2005. With regard to the preparation of an EIS and
NEPA analysis, it is our position that, outside the Tenth Circuit, we
do not need to prepare environmental analyses as defined by the NEPA in
connection with designating critical habitat. Please see the ``National
Environmental Policy Act'' section of this rule for additional information.
    (48) Comment: One public commenter stated that we failed to assess
the impact of multiple critical habitat designations on landowners.
    Our Response: To comply with the 10th Circuit Court of Appeal's
ruling in the New Mexico Cattle Growers Association case (248 F.3d at
1285) to include all co-extensive effects, the economic analysis
considers the potential economic impacts of efforts to protect the
Brodiaea filifolia and its habitat in critical habitat. It does so by
taking into account the cost of conservation related measures that are
likely to be associated with future economic activities that may
adversely affect the habitat within the proposed boundaries. Our
economic analysis fully evaluated the economic and other impacts of
designating critical habitat pursuant to section 4(b)(2) of the Act.
The economic and other impacts of critical habitat are individually
analyzed in our economic analysis report, which parallels our review of
a Federal action under section 7(a)(2) of the Act. Our analysis of the
effects of a Federal action under section 7(a)(2) of the Act would
consider the effects to any designated critical habitat. In the
proposed and final rules, we describe and evaluate potential activities
that may adversely modify critical habitat or may be affected by such
designation pursuant to section 4(b)(8) of the Act. Each critical
habitat designation may be affected differently by a proposed action in
a manner that reflects the specific physical and biological features
that are considered essential for the listed species. Thus, our
economic analysis would reflect the economic and other impacts specific
to each designation.
    (49) Comment: One commenter states that the draft economic analysis
(DEA) is inconsistent with previous economic analyses for Atriplex
coronata var. notatior and Navarretia fossalis, which provided little
economic analysis of the loss of potentially developable acreage and
instead emphasized administrative costs and impacts to public works
projects. The commenter further states that the Service should develop
consistent procedures for preparing economic analyses so that results
between species are comparable, especially for areas such as the San
Jacinto River, where occupied habitat for all three of these species
overlap.
    Our Response: Every economic analysis of proposed critical habitat
rulemakings is undertaken following the same framework, described in
pages 1-1 through 1-11 of the DEA. The reports focus on the economic
activities identified in the proposed rule as likely to threaten the
habitat and resulting in the greatest impacts. These activities, and
the associated measures required to minimize impacts, will vary
depending on the attributes of the habitat and the specific species.
Urban development is identified in the proposed rule as a threat to
Brodiaea filifolia throughout much of the proposed critical habitat. As
discussed in paragraphs 91 to 95 of the DEA, off-setting compensation
for impacts to B. filifolia in essential habitat areas is based upon
mitigation requirements for the plant contained within HCPs prepared
pursuant to the NCCP Act of 2001 in California. These plans primarily
require avoidance or call for conservation of the occurrences
encompassed within the essential habitat areas identified in the
proposed rule. This is in contrast to potential mitigation for Atriplex
coronata var. notatior and Navarretia fossalis, for which developers
are able to mitigate off-site and continue with planned projects.
    (50) Comment: One commenter states that the DEA fails to address
the greatest capital expenditure in western Riverside County, because
it does not include the costs required to purchase and maintain
reserves for the species. The comment further states that costs of


arification and have incorporated
it into the final economic analysis.
    (72) Comment: One commenter noted that Exhibit 6-2 appears to
project costs to conservancies from 2006-2024, but it is not clearly
stated in the table or text.
    Our Response: We have clarified this in the final economic analysis.

Summary of Changes From Proposed Rule

    In developing the final critical habitat designation for Brodiaea
filifolia, we reviewed peer and public comments received on our
proposed rule and draft economic analysis; conducted further

[[Page 73834]]

evaluation of lands included in our proposal; and refined our mapping
boundaries. This final rule reflects refinements of our mapping
process, and removal of areas from critical habitat designation under
section 3(5)(A), exemption under section 4(a)(3), and exclusions under
section 4(b)(2) of the Act.
    We refined our mapping to better delineate habitat containing
features essential to the conservation of the species. For example, we
found that there were areas within the boundaries of proposed critical
habitat that did not contain the physical or biological features
essential to the conservation of Brodiaea filifolia such as roads and
buildings. In most cases developed areas were captured in the proposed
critical habitat boundaries because we used a 328 ft (110 m) minimum
grid cell size. When preparing this final designation, we identified
areas where the majority of a grid cell included developed areas, then
removed these particular cells from the boundaries of critical habitat.
These refinements reduced the amount of land in subunit 6d (Taylor/
Darwin) and subunit 8d (Upham) (Table 1) that contain features
essential to the conservation of the species.
    Along with refining our mapping, we re-evaluated the occurrences of
Brodiaea filifolia included in proposed critical habitat. Criteria used
to determine if an occurrence is significant included: occupied habitat
supporting a minimum of 850 naturally occurring individuals of B.
filifolia and/or populations associated with unique habitats (e.g.
soils, vegetation, or elevation) or peripheral populations important
for protecting genetic variability across the species' range.
    Based on our review and re-evaluation, a total of 12 units/subunits
were removed from consideration because we determined they were not
significant occurrences (see ``Criteria Used to Identify Critical
Habitat''). Units/subunits removed from consideration because we
determined they did not support significant occurrences of Brodiaea
filifolia include: Unit 3 (Aliso Canyon), 4a (Arroyo Trabuco), 4d
(Prima Deschecha), 4e (Forster Ranch), 4f (Talega/Segunda Deschecha),
4h (Christianitos Canyon South), 4i (Blind Canyon), 6a (Alta Creek), 6c
(Oceanside/Mission Avenue), 7b (Rancho Carrillo), 8a (Rancho Santa Fe
Road North), and 8c (Grand Avenue).
    Unit 2 (Arrowhead Hot Springs Unit) was removed from the final
designation because it was incorrectly mapped. Although the proposed
rule correctly describes the Arrowhead Hot Springs unit in the text,
the map provided in the proposed rule depicted an area known as
Waterman Canyon.
    Subunits 8e (Linda Vista), 9 (Double LL Ranch), and 10 (Highland
Valley) were removed from consideration because we could not verify
reported occurrences of Brodiaea filifolia.
    We removed subunit 5a (Miller Mountain) from consideration because
the plants in this area are mostly hybrids between Brodiaea filifolia
and Brodiaea orcuttii (Boyd et al. 1992). No information is available
regarding the number of pure B. filifolia within this occurrence and
whether they can be considered as contributors to the long-term
conservation of the species.
    We removed a portion of lands in subunit 5b (Devil Canyon) from
consideration because the area is not known to be occupied by Brodiaea
filifolia.
    We removed subunit 8b (Rancho Santalina/Loma Alta) from
consideration under section 3(5)(A) of the Act because it is already
receiving special management considerations (see the ``Application of
Section 3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under
Section 4(b)(2) of the Act'').
    We removed 205 ac (83 ha) of land in Riverside County identified in
the proposed rule as containing features essential to the conservation
of the species, but which were excluded under section 4(b)(2) of the
Act. The lands removed were near Corona and in Moreno Valley. We
removed these areas because they are not known to be occupied by
Brodiaea filifolia. Approximately 3,062 ac (1,234 ha) of land in
Riverside County containing features essential to the conservation of
B. filifolia are excluded under section 4(b)(2) of the Act.
    Six units/subunits are being excluded under section 4(b)(2) of the
Act. Three subunits, including 4b (Casper's Park), 4c (Canada/
Gobernadora), and 4g (Christianitos Canyon) are within the boundaries
of the pending Orange County Southern Subregion NCCP/HCP, which
includes the participation of the County of Orange and Rancho Mission
Viejo, both of which are parties to a Settlement Agreement for the
Ranch Plan. Subunits 6b (Mesa Drive) and 6d (Taylor/Darwin) are within
the boundaries of the pending City of Oceanside Subarea Plan of the
Northwestern San Diego County MHCP. Subunit 7a (Fox-Miller) is covered
under the City of Carlsbad's approved HMP.
    In this final rule, lands on Camp Pendleton that were excluded from
proposed critical habitat under section 4(b)(2) of the Act are now
exempt pursuant to section 4(a)(3) of the Act.
    For more discussion about the areas exempted or excluded from this
final designation, please refer to the section ``Application of Section
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section
4(b)(2) of the Act.''
    Overall, these refinements, removals, exemptions and exclusions
resulted in a reduction from 4,690 ac (1,898 ha) included in the
proposed designation to 597 ac (242 ha) included in the final
designation (see Table 1 below).

--------------------------------------------------------------------------------------------------------------------------------------------------------

     Critical habitat unit/subunit                     County
Proposed critical habitat (ac; ha)      Final critical habitat (ac; ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

Unit 1: Los Angeles County............  Los Angeles........................
Total 294; 119.........................  Total 294; 119
    1a: Glendora......................  ...................................
96; 39.................................  96; 39
    1b: San Dimas.....................  ...................................
198; 80................................  198; 80
Unit 2: Arrowhead Hot Springs.........  San Bernardino.....................
89; 36.................................  0


dorf 1995). Ornduff (1966) found the highest
concentration of morphological and cytological variants

[[Page 73839]]

at the margin of the geographic range of species of Lasthenia. For
these reasons, conservation of geographically (e.g., Los Angeles
County) and ecologically (e.g., Devil Canyon) peripheral populations
may be essential for the conservation of B. filifolia.
    Currently, the exact number of extant populations or occurrences of
Brodiaea filifolia is unknown. Reasons for this include the lack of
surveys in all areas of suitable habitat, false negative survey results
yielded during inappropriate seasons, and variation in how survey data
is recorded. For example, some surveyors may record populations within
close proximity as a single occurrence while others may record each
population as an individual occurrence. Table 3 of Bramlet and White
(2004) contains a working list of approximately 83 sites where B.
filifolia has been reported. However, some of these sites are included
with others as single occurrences by the CNDDB, others have no locator,
no population description, are translocated populations, or were
considered extirpated. These sites were not considered further.
Occurrences comprised solely of translocated plants were not considered
to contain the features essential to the conservation of the species
because their potential for long-term survival and contribution to the
species' gene pool is currently unknown.
    Where possible, we delineated a vegetative area of 820 ft (250 m)
around each occurrence included in this designation to provide for
pollinator movement and habitat. One study found a 50 percent reduction
in seed set when pollinator habitat was 3,280 ft (1,000 m) from a
target plant species and at 820 ft (250 m) for another target plant
species (Steffan-Dewenter and Tscharntke 1999). Studies also suggest
that the degradation of pollinator habitat is likely to adversely
affect the abundance of pollinator species (Jennersten 1988; Rathcke
and Jules 1993; Steffan-Dewenter and Tscharntke 1999). The various
pollinator species associated with Brodiaea filifolia as well as
studies quantifying insect pollinating flight distances are discussed
in the ``Background'' section of this rule. Studies to quantify the
distance that bees will fly to pollinate their host plants are limited
in number, but the few that exist indicate that some bees will
routinely fly from 328 to 984 ft (100 to 500 m) to pollinate plants
with some flying at least 3,280 ft (1,000 m) to pollinate flowers
(Schulke and Waser 2001; Steffan-Dewenter and Tscharntke 2000). Because
we do not currently have much information on specific visitation
behavior of the pollinator species identified on B. filifolia, we based
the 820 ft (250 m) distance on a conservative estimate for mean routine
flight distance for bees. These 820 ft (250 m) areas contain suitable
soils and vegetation required by all stages of the species' lifecycle
and provide for gene flow, pollen dispersal, seed dispersal, and
germination.
    When determining critical habitat boundaries, we made every effort
to avoid the designation of developed land such as buildings, paved
areas, and other structures that lack PCEs for Brodiaea filifolia. Any
such structures, and the land under them, inadvertently left inside the
mapped critical habitat boundaries due to scale have been excluded by
text in the rule and are not designated as critical habitat. Therefore,
Federal actions limited to these areas would not trigger section 7
consultations, unless they affect the species and/or primary
constituent elements in adjacent critical habitat.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the identified
primary constituent elements (PCEs) may require special management
considerations or protection. Threats to the PCEs for Brodiaea
filifolia include the direct and indirect effects of habitat loss and
degradation from urban development; invasive plant species;
recreational activities; agricultural practices; mowing; and dumping of
manure and sewage sludge on suitable habitat.
    Loss and degradation of habitat from development was cited in the
final listing rule as a primary cause for the decline of Brodiaea
filifolia. Most of the populations of this species are located in San
Diego, Orange, and Riverside counties. These counties have had and
continue to have increasing populations and attendant housing pressure.
Natural areas in these counties are frequently near or bounded by
urbanized areas. Urban development removes the plant community
components and associated clay soils identified in the primary
constituent elements. This eliminates or fragments the populations of
B. filifolia. Urbanization may also indirectly alter surface as well as
subsurface layers to the degree that they will no longer support plant
community types known to be associated with B. filifolia.
    Invasive plant species may alter the vegetation composition or
physical structure identified in the primary constituent elements to an
extent that the area does not support B. filifolia or its associated
vegetation and invasive species may compete for space and resources.
    Authorized and unauthorized recreation activities may impact the
vegetation composition and soil structure to an extent that the area
will no longer have intact soil surfaces or support associated
vegetation as identified in the primary constituent elements. Public
hiking trails and/or off-road vehicle activity are examples of this
type of activity.
    Some methods of mowing and disking for agricultural or fire
management may preclude the full and natural development of Brodiaea
filifolia by adversely affecting the primary constituent elements.
Mowing may reduce the production and dispersal of seeds, alter the
associated vegetation needed for pollinator activity, or reduce the
number and vigor of plants present by cutting off the leaves
(PCE# 2). Dumping of sewage sludge can cover plants as well as
the soils they need. In addition this practice can alter the chemistry
of the substrate and lead to alterations in the vegetation supported at
the site (PCE# 1).
    Several management actions can preserve the PCEs for Brodiaea
filifolia. Foremost among these is avoidance of habitat known to be
occupied. However, set-aside areas must usually include some form of
management to address other threats to the PCEs (e.g., non-native plant
invasion). Loss of habitat or degradation of soils can be avoided with
appropriate grading and soil management as part of development. Slope
grading so as to avoid inflow or outflow of sediments may protect the
integrity of the onsite soils that support B. filifolia and associated
vegetation. Dumping of sewage sludge should be avoided in all areas
containing B. filifolia. The components in sludge can permanently alter
the soil chemistry as well as the vegetation it supports.
    Invasive plant species may be managed by reducing the overgrowth of
these plants through a combination of clearing, mowing, and/or thatch
removal. Any temporary impacts from recreational activities could be
timed to avoid the most sensitive time of year and hydrological
conditions for Brodiaea filifolia. Mowing and disking for agricultural
or fire suppression purposes could be located in such a manner so as to
avoid known populations of the species. Habitat enhancement can allow
for additional habitat for pollinators as well as for B. filifolia.

Critical Habitat Designation


 we anticipate that Camp Pendleton will
incorporate the conservation measures from the Biological Opinion into
their INRMP. At that time, Camp Pendleton's INRMP will provide further
benefits to B. filifolia.

Relationship of Critical Habitat to Approved and Pending Habitat
Conservation Plans (HCPs)--Exclusions Under Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact of specifying any
particular area as critical habitat. An area may be excluded from
critical habitat if it is determined that the benefits of exclusion
outweigh the benefits of specifying a particular area as critical
habitat, unless the failure to designate such area as critical habitat
will result in the extinction of the species. Consequently, we may
exclude an area from critical habitat based on economic impacts,
impacts on national security, or other relevant impacts, such as
preservation of conservation partnerships, if we determine the benefits
of excluding an area from critical habitat outweigh the benefits of
including the area in critical habitat, provided the action of
excluding the area will not result in the extinction of the species.
    Under section 4(b)(2) of the Act, we are excluding critical habitat
from approximately 4,883 ac (1,976 ha) of non-Federal lands within
approved or pending HCPs. We are excluding non-Federal lands from
critical habitat within the approved (1) Western Riverside County
Multiple Species Habitat Conservation Plan (MSHCP) (3062 ac, 1239 ha);
(2) Villages of La Costa Habitat Conservation Plan (HCP) (208 ac, 84
ha); and (3) Northwestern San Diego County Multiple Habitat
Conservation Program (MHCP): City of Carlsbad Subarea Plan/Habitat
Management Plan (City of Carlsbad HMP) (414 ac, 168 ha). We are also
excluding non-Federal lands from critical habitat within two pending
HCPs, the (4) City of Oceanside HMP, also a Subarea Plan under the
Northwestern San Diego County MHCP (41 ac, 17 ha) and (5) Orange County
Southern Subregion Natural Communities Conservation Plan (NCCP)/HCP)
(1,158 ac, 468 ha). Table 4 below provides a list of the exemptions and
exclusions in this rule. We have determined that the benefits of
excluding areas within these legally operative and pending HCPs from
final critical habitat designation outweigh the benefits of including
them in critical habitat.

    Table 4.--Acreage of Habitat Containing Features Essential to the
  Conservation of the Species, Areas Excluded or Exempted From Critical
Habitat, and Designated Critical Habitat (Acres (ac); Hectares (ha)) for
                           Brodiaea filifolia
------------------------------------------------------------------------

------------------------------------------------------------------------
Total habitat containing features essential to   6,397 ac.
 the conservation of Brodiaea filifolia.         2,589 ha.
Habitat excluded from the final critical
 habitat designation under section 4(b)(2) of
 the Act:
    Western Riverside County Multiple Species    3,062 ac.
     Habitat Conservation Plan (Riverside        1,239 ha.
     County).
    Villages of La Costa Habitat Conservation    208 ac.
     Plan (San Diego County).                    84 ha.
    City of Carlsbad Habitat Management Plan     414 ac.
     (San Diego County).                         368 ha.
    Pending City of Oceanside Subarea Plan (San  41 ac.
     Diego County).                              17 ha.
    Pending Orange County Southern Subregion     1,158 ac.
     Natural Community Conservation Plan/        469 ha.
     Habitat Conservation Plan (Orange County).
    Habitat exempted from critical habitat       917 ac.
     designation under section 4(a)(3) of the    371 ha.
     Act: Marine Corps Base, Camp Pendleton
     (San Diego County).
        Total habitat containing features        5,800 ac.
         essential to the conservation of        2,347 ha.
         Brodiaea filifolia excluded or
         exempted from final critical habitat.
        Total habitat containing features        597 ac.
         essential to the conservation of        242 ha.
         Brodiaea filifolia designated as final
         critical habitat.
------------------------------------------------------------------------

    Brodiaea filifolia is a covered species under the approved Western
Riverside County MSHCP, the Villages of La Costa HCP, and the City of
Carlsbad HMP and, as such, receives protection and management of
features essential for the

[[Page 73845]]

species' conservation. We issued the section 10(a)(1)(B) permit for the
Western Riverside County MSHCP on June 22, 2005; the Villages of La
Costa HCP on June 7, 1995; and the City of Carlsbad HMP on November 9,
2004. Significant conservation of B. filifolia is also identified and
committed to under a pending HMP for the City of Oceanside and for the
Orange County Southern Subregion NCCP/HCP through a signed Settlement
Agreement for the Ranch Plan, a comprehensive land use and open space
plan that is a component of the draft Orange County Southern Subregion
NCCP/HCP, addressing lands owned by the County of Orange and lands
owned by Rancho Mission Viejo. The Settlement Agreement was signed on
August 16, 2005. These approved and legally operative HCPs, the pending
City of Oceanside HMP, and the pending Orange County Southern Subregion
NCCP/HCP and associated Settlement Agreement provide special management
and protection for the physical and biological features essential for
the conservation of B. filifolia that exceed the level of regulatory
control that would be afforded this species by the designation of
critical habitat. We have determined that the benefits of excluding
critical habitat within these areas from the critical habitat
designation will outweigh the benefits of including them as critical
habitat and this exclusion will not result in the extinction of B.


vered 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 that, 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 the
conservation efforts and assist in species conservation and the
creation of innovative solutions to conserve species while allowing for
development.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We have reviewed and evaluated the exclusion of critical habitat
for Brodiaea filifolia from approximately 4,883 ac (1,976 ha) of non-
Federal lands within the approved Western Riverside County MSHCP, the
Villages of La Costa HCP, and the City of Carlsbad HMP, and the pending
City of Oceanside HMP and pending Orange County Southern Subregion
NCCP/HCP with its associated Settlement Agreement. Based on this
evaluation, we find that the benefits of exclusion (avoid increased
regulatory costs which could result from including those lands in this
designation of critical habitat, ensure the willingness of existing
partners to continue active conservation measures, maintain the ability
to attract new partners, and direct limited funding to conservation
actions with partners) of the lands containing features essential to
the conservation of the Brodiaea filifolia within these lands outweigh
the benefits of inclusion (limited educational and regulatory benefits,
which are largely otherwise provided for under the HCPs) of these lands
as critical habitat. The benefits of including these 4,883 ac (1,976
ha) of non-Federal lands as critical habitat are lessened because of
the significant level of conservation provided to B. filifolia under
the approved Western Riverside County MSHCP, the Villages of La Costa
HCP, and the City of Carlsbad HMP; the pending City of Oceanside HMP;
and the pending Orange County Southern Subregion NCCP/HCP and
associated Settlement Agreement (conservation of occupied and potential
habitat, monitoring, and maintenance of soils and hydrology). In
contrast, the benefits of excluding these 4,883 ac (1,976 ha) of non-
Federal lands as critical habitat are increased because of the high
level of cooperation by the County of Riverside et al., Fieldstone/La
Costa Associates, the City of Carlsbad, the City of Oceanside, the
County of Orange, Rancho Mission Viejo, the State of California, and
the Service to conserve this species, and these partnerships exceed any
conservation value provided by a critical habitat designation.
(4) Exclusion Will Not Result in Extinction of the Species
    We believe that exclusion of these 4,883 ac (1,976 ha) of non-
Federal lands will not result in extinction of Brodiaea filifolia since
most of these lands are protected and managed or will be protected and
managed for the benefit of this species pursuant to the approved
Western Riverside County MSHCP, the Villages of La Costa HCP, and the
City of Carlsbad HMP; the pending City of Oceanside HMP; and the
pending Orange County Southern Subregion NCCP/HCP and the associated
Settlement Agreement. These approved and pending HCPs and the
Settlement Agreement include specific conservation objectives,
avoidance and minimization measures, and management that exceed any
conservation value provided as a result of a critical habitat designation.
    Some small occurrences of Brodiaea filifolia within approximately
311 ac (ha) of privately owned lands in subunit 4c (Gobernadora/
Chiquita Ridgeline) are proposed for development as part of Rancho
Mission Viejo's development plan. These lands are covered by the signed
Settlement Agreement. Any Federal Agency authorizing an action to
develop these lands (e.g., USCOE) would likely consider the
conservation actions in the Settlement Agreement as appropriate
mitigation for loss of B. filifolia habitat. We believe the loss of
these small occurrences of this species is not likely to result in
extinction of the species). Likewise, the approximately 588 acres (238
ha) of privately owned lands containing features essential to the
conservation of B. filifolia in subunit 4g (Cristianitos Canyon) will
be protected and managed by Rancho

[[Page 73850]]

Mission Viejo as stipulated in the Settlement Agreement. This level of
protection will occur as a result of the Settlement Agreement and thus
regardless of whether these lands are excluded as critical habitat. The
occurrence of B. filifolia in subunit 4b (Casper's Wilderness Park) is
protected and is within the pending Orange County Southern Subregion
NCCP/HCP plan boundary. Thus, we believe that exclusion of this
occurrence as critical habitat will not result in extinction of the
species.
    In our Biological and Conference Opinions for the issuance of a
section 10(a)(1)(B) permit for the Western Riverside County MSHCP, the
Villages of La Costa HCP, and the City of Carlsbad HMP, the Service
concluded that the proposed permit issuances would not appreciably
reduce the likelihood of the survival and recovery of Brodiaea
filifolia because of the avoidance and minimization measures, long-term
management, and commitment to a preserve system. The jeopardy standard
of section 7 and routine implementation of habitat conservation through
the section 7 process also provide assurances that the species will not
go extinct. The exclusion leaves these protections unchanged from those
that would exist if the excluded areas were designated as critical
habitat. Critical habitat is being designated for B. filifolia in other
areas that will be accorded the protection from adverse modification by
Federal actions using the conservation standard based on the Ninth
Circuit Court's decision in Gifford Pinchot.
    Additionally, the major occurrences of Brodiaea filifolia within
the Western Riverside County MSHCP, the Villages of La Costa HCP, the
City of Carlsbad HMP, and the pending Oceanside HMP and within lands
covered by the Settlement Agreement and within Casper's Wilderness Park
are or will be protected and managed either explicitly for the species
or indirectly through more general objectives to protect natural
values. These factors, acting in concert with the other protections
provided under the Act, lead us to find that exclusion of these 4,883
ac (1,976 ha) within lands owned by the County of Orange and Rancho
Mission Viejo and within the Western Riverside County MSHCP, the
Villages of La Costa HCP, the City of Carlsbad HMP, and the pending
City of Oceanside HMP will not result in extinction of B. filifolia.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific data 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 concerned.
    Following publication of the proposed critical habitat rule, an
analysis of the economic impacts of proposed critical habitat for
Brodiaea filifolia was prepared. The notice of availability (NOA) of a
draft economic analysis (DEA) was announced in the Federal Register on
October 6, 2005 (70 FR 58361). Copies of the draft economic analysis
were available for downloading from the Internet at <A HREF="
http://carlsbad.fws.gov">http://carlsbad.fws.gov</A>,
or by contacting the Carlsbad Fish and Wildlife
Office directly. In the NOA, we announced the reopening of the comment
period on proposed critical habitat and solicited public review and
comment. We accepted comments until October 20, 2005.
    The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Brodiaea filifolia. This information is intended to assist
the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation. The economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be coextensive with
the listing of the species. It also addresses distribution of impacts,
including an assessment of the potential effects on small entities and
the energy industry. This information can be used by the Secretary to
assess whether the effects of the designation might unduly burden a
particular group or economic sector.
    This analysis determined that costs involving conservation measures
for Brodiaea filifolia would be incurred for activities involving
residential, industrial, and commercial development; water supply;
flood control; transportation; agriculture; the development of HCPs;
and the management of military bases, other Federal lands, and other
public or conservation lands.
    Pre-designation costs include those Brodiaea filifolia-related
conservation activities associated with sections 4, 7, and 10 of the
Act that have accrued since the time that Brodiaea filifolia was listed
as threatened (63 FR 54975; October 13, 1998), but prior to the
designation of critical habitat. Total pre-designation costs associated
with lands proposed as critical habitat are estimated to be $2.9
million to $3.0 million on a present value basis and $2.4 million to
$2.5 million expressed in undiscounted dollars. Pre-designation costs
associated with areas excluded from the proposed designation are
estimated to be $110,000 to $180,000 on a present value basis and
$100,000 to $150,000 expressed in undiscounted dollars.
    Post-designation effects would include likely future costs
associated with Brodiaea filifolia conservation efforts in the 20-year
period following the final designation of critical habitat (effectively
2005 through 2024). If critical habitat were designated as proposed,
total costs were estimated to be $12.2 million to $14.7 million on a
present value basis and $12.2 million to $16.9 million expressed in
undiscounted dollars (an annualized cost of $0.6 to $0.8 million
annually). If all habitat with features essential to the conservation
of the species were designated critical habitat in this final rule,
total costs would be expected to range between $24.5 and $43.6 million
over the next 20 years (an annualized cost of $1.2 to $2.2 million).
However, due to significant reductions made to critical habitat in this
final rule (see ``Summary of Changes from Proposed Rule''), the
estimated costs for the units actually designated are estimated to
range between $1.0 and $3.3 million over the next 20 years expressed in
undiscounted dollars.
    The final economic analysis and supporting documents are included
in our administrative record and may be obtained by contacting U.S.
Fish and Wildlife Service, Branch of Endangered Species (see ADDRESSES
section) or for downloading from the Internet at <A HREF="
http://carlsbad.fws.gov
">http://carlsbad.fws.gov</A>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because the draft economic analysis indicates the potential
economic impact associated with a designation of all habitat with
features essential to the conservation of this species would total no
more than $24.5 million to $43.6 million over the nest 20 years (an
annualized cost of $1.2 million to $2.2 million), we do not anticipate
that this final rule will have

[[Page 73851]]

an annual effect on the economy of $100 million or more or affect the
economy in a material way. Due to the time line for publication in the
Federal Register, the Office of Management and Budget (OMB) did not
formally review the proposed rule.
    The availability of the draft economic analysis was announced in
the Federal Register on October 6, 2005 (70 FR 58361), and was made
available for public review and comment.

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

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., as
amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA) of 1996), whenever an agency is required to publish a notice
of rulemaking for any proposed or final rule, it must prepare and make
available for public comment a regulatory flexibility analysis that
describes the effects of the rule on small entities (i.e., small
businesses, small organizations, and small government jurisdictions).
However, no regulatory flexibility analysis is required if the head of
the agency certifies the rule will not have a significant economic
impact on a substantial number of small entities.
    According to the Small Business Administration (SBA), small
entities include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents, as well as small businesses (13 CFR 121.201). Small
businesses include manufacturing and mining concerns with fewer than
500 employees, wholesale trade entities with fewer than 100 employees,
retail and service businesses with less than $5 million in annual
sales, general and heavy construction businesses with less than $27.5
million in annual business, special trade contractors doing less than
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we considered the
types of activities that might trigger regulatory impacts under this
designation as well as types of project modifications that may result.
In general, the term significant economic impact is meant to apply to a
typical small business firm's business operations.
    To determine if this rule to designate critical habitat for
Brodiaea filifolia would affect a substantial number of small entities,
we considered the number of small entities affected within particular
types of economic activities (e.g., residential, industrial, and
commercial development). We considered each industry or category
individually to determine if certification is appropriate. In
estimating the numbers of small entities potentially affected, we also
considered whether their activities have any Federal involvement; some
kinds of activities are unlikely to have any Federal involvement and so
will not be affected by the designation of critical habitat.
Designation of critical habitat only affects activities conducted,
funded, permitted, or authorized by Federal agencies; non-Federal
activities are not affected by the designation.
    The designation of critical habitat requires Federal agencies to
consult with us if activities they authorize, fund, or carry out may
affect designated critical habitat. Consultations to avoid the
destruction or adverse modification of critical habitat would be
incorporated into the existing consultation process. Our analysis
determined that costs involving conservation measures for Brodiaea
filifolia would be incurred for activities involving residential,
industrial, and commercial development; water supply; flood control;
transportation; agriculture; the development of HCPs; and the
management of military bases, other Federal lands, and other public or
conservation lands.
    In our draft economic analysis of this designation, we evaluated
the potential economic effects on small business entities resulting
from conservation actions related to the listing of this species and
proposed designation of its critical habitat. Of these potentially
affected activities, impacts to small entities are not anticipated for
the following reasons: 1. Military lands management: The analysis
predicts that the Department of Defense (DoD), which manages Marine
Corps Base Camp Pendleton (EH units 15 to 19), will experience
administrative and project modification costs associated with Brodiaea
filifolia conservation activities. DoD does not meet SBA's definition
of a small government. 2. Transportation, utilities, and flood control:
The analysis estimates that additional project modification costs
associated with B. filifolia conservation activities are likely for
transportation project undertaken by CALTRANS, the Transportation
Corridor Agencies (TCA), and the Riverside County Transportation
Commission, utility projects undertaken by San Diego Gas & Electric,
and the San Jacinto River Flood Control Project of the Riverside County
Flood Control and Water Conservation District. None of these five
entities are small businesses or governments as defined by SBA and,
therefore, are not considered further in this screening analysis. 3.
Public and conservancy lands management: The United States Forest
Service manages Cleveland National Forest; Orange County's Department
of Harbors, Beaches and Parks manages Aliso-Wood Canyon Regional Park
and Casper's Regional Park; and the Glendora Community Conservancy
manages the Conservancy of the same name. With the exception of the
Glendora Community Conservancy, these entities exceed the threshold
established for small governments (service population of 50,000 or
less). Accordingly, this screening analysis focuses on economic impacts
related to residential development and the management of Glendora
Community Conservancy.
    The final critical habitat designation is expected to result in
additional costs to real estate development projects due to mitigation
and other conservation costs that may be required. The affected land is
located within Los Angeles, Orange, and San Diego counties and under
private ownership by individuals who will either undertake a
development project on their own or sell the land to developers for
development. For businesses involved with land development, the
relevant threshold for ``small'' is annual revenues of $6 million or
less. The North American Industry Classification System (NAICS) code
237210 is comprised of establishments primarily engaged in servicing
land (e.g., excavation, installing roads and utilities) and subdividing
real property into lots for subsequent sale to builders. Land
subdivision precedes actual construction, and typically includes
residential properties, but may also include industrial and commercial
properties.
    The DEA (See Section 3.2.1) estimates that 390 acres within areas
originally proposed for critical habitat designation are projected to
be developed over the next 20 years. The analysis assumes that as a
result of Brodiaea filifolia conservation activities, 95 percent of the
acres are conserved, and the plant is salvaged from the remaining five
percent. As a result, landowners of 100 percent of these acres bear
costs of B. filifolia conservation activities.
    To estimate the number of landowners potentially impacted by B.
filifolia conservation activities, the analysis estimates the average
parcel size within proposed units/subunits in each county that contains
habitat with features essential to the conservation of the species and
compares it to the

[[Page 73852]]

estimate of affected acres in these areas. At the aggregate county
level, in units proposed for inclusion, one individual may be impacted
in Los Angeles County, one individual may be impacted in San Bernardino
County, 22 individuals may be impacted in Orange County, and 27
individuals may be impacted in San Diego County. Note that this
estimate may be understated if habitat partially overlaps several
parcels or overstated if one person owns more than one parcel with B.
filifolia.
    The loss in land value experienced by an individual landowner will
depend on how much of a parcel is inhabited by Brodiaea filifolia, the
extent to which development activities can be planned around sensitive
areas, and the existence of alternative uses of the property that do
not threaten the plant or its habitat. For example, if B. filifolia
exist on only a small portion of the parcel that can be incorporated
into existing open space requirements, then a small percentage of the
land value is lost. However, if B. filifolia are found throughout the
parcel, most or all of development value of that parcel may be lost. In
such a circumstance, the parcel may continue to derive value from
other, nondevelopment-oriented uses.

Effects on Homebuyers and Small Construction Firms

    The DEA (See Section 3.2.2) estimates a potential shift in the
supply of housing resulting from increased land scarcity. Scenario Two
assumes that as a result of on-site conservation requirements, less
land is available for development, and therefore fewer new homes are
built. Under this scenario, small construction firms may be indirectly
affected. This analysis uses a methodology used by Charles River
Associates (CRA) to estimate the potential impact to small construction
firms. The analysis uses the following steps to estimate the number of
firms potentially affected:
    (1) The analysis estimates the number of new homes typically built
by a small construction firm in one year. Average annual revenues for a
small construction firms are $694,000. Using the average construction
costs for a single family home of $236,000 obtained from CRA's vernal
pool analysis, a small firm is assumed to build on average three houses
a year ($694,000/$236,000 = 2.9).
    (2) Next, the analysis estimates the number of homes that would
have been built by small businesses in the absence of Brodiaea
filifolia conservation efforts. As described in Section 3.2.2 of the
DEA, the analysis predicts 316 homes will not be built in cities with
habitat proposed for designation (summarized in Exhibit A-2 of the
DEA). In an analysis of building permits in Sacramento County conducted
by CRA, researchers determined that 22 percent of permits for single
family dwellings were requested by small businesses. This analysis
assumes that a similar proportion of new home construction activity is
conducted by small construction firms in the five Southern California
counties included in this analysis. As shown in Exhibit A-2 of the DEA,
multiplying 22 percent by the number of homes not built in each county
provides an estimate of lost home construction for small firms.
    (3) Next, using the number of homes not built by small firms, the
analysis estimates the number of small businesses affected. Results of
this calculation are presented in Exhibit A-2. At the high-end,
assuming that each lost house would have been built by a separate firm,
the number of firms potentially affected is equal to the number of lost
homes. For a low-end estimate, the number of houses not built is
divided by the average number of houses built per year by small firms
(three houses). In summary, in a given municipality containing critical
habitat, between one and 18 small construction firms may be affected
annually by Brodiaea filifolia conservation activities. In Hemet,
Moreno Valley, and Perris, where habitat is excluded from critical
habitat, approximately nine to 82 small firms could be affected if
habitat were designated. The impact to affected small businesses is
estimated to be between one-third and all of their revenues for the
year, depending on the estimate of the number of businesses affected.
Note that the impact to small construction firms may be overstated. As
discussed in Section 3 of the DEA, the analysis of lost housing units
is partial equilibrium in nature (e.g., does not consider substitution
of displaced development to other nearby areas), which is consistent
with the best currently available empirical information. If, instead,
homes not built in these municipalities are constructed in neighboring
communities unaffected by B. filifolia conservation activities, the
impact to small construction firms is likely to be less than presented
in Exhibit A-2. As a result, impacts to these firms are more likely
overstated than understated in this analysis.
    Based on these data, we have determined that this designation will
not result in a significant economic impact on a substantial number of
small entities, in particular to land developers or farmers in Los
Angeles, San Bernardino, Orange, Riverside, and San Diego counties.
Please refer to Appendix A of our draft economic analysis of this
designation for a more detailed discussion of potential economic
impacts to small business entities.

Executive Order 13211

    On May 18, 2001, the President issued Executive Order (E.O.) 13211
on regulations that significantly affect energy supply, distribution,
and use. E.O. 13211 requires agencies to prepare Statements of Energy
Effects when undertaking certain actions. This rule is considered a
significant regulatory action under E.O. 12866 because it raises novel
legal and policy issues, but it is not expected to significantly affect
energy supplies, distribution, or use. Therefore, this action is not a
significant action, and no Statement of Energy Effects is required.
Please refer to Appendix A of our draft economic analysis of the
proposed designation for a more detailed discussion of potential
effects on energy supply.

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

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C.
1501), the Service makes the following findings:
    (a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption

[[Page 73853]]

Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement. ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. Non-Federal entities that receive Federal
funding, assistance, permits, or otherwise require approval or
authorization from a Federal agency for an action, may be indirectly
impacted by the designation of critical habitat. However, the legally
binding duty to avoid destruction or adverse modification of critical
habitat rests squarely on the Federal agency. Furthermore, to the
extent that non-Federal entities are indirectly impacted because they
receive Federal assistance or participate in a voluntary Federal aid
program, the Unfunded Mandates Reform Act would not apply; nor would
critical habitat shift the costs of the large entitlement programs
listed above on to State governments.
    (b) The U.S. Forest Service manages Angeles National Forest and
Cleveland National Forest (subunits 1b, 5a and 5b); Orange County's
Department of Harbors, Beaches and Parks manages Aliso and Woods Canyon
Regional Park (unit 3) and Casper Wilderness Park (unit 4); and the
Glendora Community Conservancy manages the Conservancy (subunit 1a) of
the same name. With the exception of the Glendora Community
Conservancy, these entities exceed the threshold established for small
governments (service population of 50,000 or less). Therefore, the
Glendora Community Conservancy is the only land manager considered in
this screening analysis.
    The DEA (See Section 6) estimates potential costs to public and
private land management entities. Of the entities analyzed, the
Glendora Community Conservancy is the only small entity. This section
estimates potential impacts of Brodiaea filifolia conservation
activities to the Conservancy.
    The Conservancy's overall annual budget ranges from $15,000 to
$30,000 and includes such elements as insurance, discounted land taxes,
weed abatement, and trail maintenance. The analysis estimates that
potential future costs associated with Brodiaea filifolia conservation
activities at the Conservancy may range from $1,600 to $2,600 on an
annualized basis (assuming a seven percent discount rate). These costs
represent approximately 11 percent to 17 percent of annual expenditures
assuming the low-end estimate of the annual budget ($15,000) and 5
percent to 9 percent assuming the high-end estimate ($30,000).
Considering that the Glendora Community Conservancy is in the business
of conservation this is not an unexpected expenditure for the
Conservancy. Consequently, we do not believe that the designation of
critical habitat for B. filifolia will significantly or uniquely affect
any small governmental entity addressed in the DEA. As such, a Small
Government Agency Plan is not required.

Federalism

    In accordance with Executive Order 13132, this rule does not have
significant Federalism effects and, therefore, a Federalism assessment
is not required. In keeping with Department of the Interior policies,
we requested information from, and coordinated the development of the
proposed critical habitat designation with appropriate State resource
agencies in California. We anticipate that the designation of critical
habitat in the areas currently occupied by Brodiaea filifolia will
impose no additional significant restrictions beyond those currently in
place and, therefore, should have little incremental impact on State
and local governments and their activities.
    The designation of critical habitat may have some benefit to the
State and local resource agencies in that the areas and features
essential to the conservation of this species are more clearly defined,
and the primary constituent elements of the habitat necessary to the
conservation of this species are specifically identified. While this
definition and identification does not alter where and what federally
sponsored activities may occur, it may assist 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 Department of the
Interior=s Office of the Solicitor has determined that this rule does
not unduly burden the judicial system and does meet the requirements of
sections 3(a) and 3(b)(2) of the Order. We are designating critical
habitat in accordance with provisions of the Endangered Species Act.
The rule uses standard property descriptions and identifies the primary
constituent elements within the designated areas to assist the public
in understanding the habitat needs of Brodiaea filifolia.

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

    This rule does not contain new or revised information collections
for which OMB approval is required under the Paperwork Reduction Act.
Information collections associated with certain Act permits are covered
by an existing OMB approval and are assigned OMB Control No. 1018-0094,
which expires September 30, 2007. This includes FWS Forms 3-200-55 and
3-200-56. This rule will not impose recordkeeping or reporting
requirements on State or local governments, individuals, businesses, or
organizations. An agency may not conduct or sponsor, and a person is
not required to respond to, a collection of information unless it
displays a currently valid OMB control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of the Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no tribal lands essential for the conservation of Brodiaea
filifolia. Therefore, critical habitat has not been designated on
Tribal lands.

References Cited

    A complete list of all references cited herein is available, upon
request, from

[[Page 73854]]

the Field Supervisor, Carlsbad Fish and Wildlife Office (see ADDRESSES
section).

Author

    This rule was prepared by staff at the Carlsbad 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.

Regulation Promulgation

? Accordingly, the Service hereby amends 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.  17.12(h), revise the entry in the table for ``Brodiaea
filifolia'' under ``FLOWERING PLANTS,'' to read as follows:

Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

                        Species
--------------------------------------------------------    Historic range
Family            Status      When listed    Critical     Special
         Scientific name               Common names
habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------

         Flowering Plants

                                                                      * * *
* * * *
Brodiaea filifolia...............  Thread-leaved         U.S.A.
(CA)........  Liliaceae--Lily....  T                       650     17.96(a)
NA.
                                    brodiaea.

                                                                      * * *
* * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


? 3. In Sec.  17.96(a), add critical habitat for Brodiaea filifolia, in
alphabetical order under Family Liliaceae to read as follows:

Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Liliaceae: Brodiaea filifolia (Thread-leaved brodiaea)
    (1) Critical habitat units are depicted for Brodiaea filifolia on
the maps below.
    (2) The primary constituent elements of critical habitat for
Brodiaea filifolia consist of the following:
    (i) Appropriate soil series and associated vegetation at suitable
elevations of either:
    (A) Clay soil series of various origins (e.g., Alo, Altamont, Auld,
Diablo), clay lenses found as unmapped inclusions in other soil series,
or within loamy soils underlain by a clay subsoil (e.g., Fallbrook,
Huerhuero, Las Flores) that generally occur on mesas and gentle to
moderate slopes, or in association with vernal pools, between the
elevations of 100 ft (30 m) and 2,500 ft (765 m) and support open
native or annual grassland communities, open coastal sage scrub or
coastal sage scrub-chaparral communities; or
    (B) Silty loam soil series underlain by a clay subsoil or caliche
that are generally poorly drained, moderately to strongly alkaline,
granitic in origin (e.g., Domino, Grangeville, Waukena, Willows), that
generally occur in low-lying areas and floodplains, often in
association with vernal pool or playa complexes, between the elevations
of 600 ft (180 m) and 1,800 ft (550 m) and support native, annual, or
alkali grassland or scrub communities; or
    (C) Clay loam soil series (e.g., Murrieta) underlain by heavy clay
loams or clays derived from olivine basalt lava flows, that generally
occur on mesas and gentle to moderate slopes between the elevations of
1,700 ft (520 m) and 2,500 ft (765 m) and support native or annual
grassland or oak woodland savannah communities associated with basalt
vernal pools; or
    (D) Sandy loam soils derived from basalt and granodiorite parent
materials, deposits of gravel, cobble, and boulders, or hydrologically
fractured weathered granite in intermittent streams and seeps that
support open riparian and freshwater marsh communities associated with
intermittent drainages, floodplains, and seeps generally between 1,800
ft (550 m) and 2,500 ft (765 m).
    (ii) Areas with an intact surface and subsurface structure not
permanently altered by anthropogenic land use activities (e.g., deep,
repetitive disking; grading). These features as well as associated
physical processes (e.g., full sunlight exposure) are essential to
maintain those substrate and vegetation types where Brodiaea filifolia
is found and to support pollinator assemblages necessary to facilitate
gene flow within and among populations of B. filifolia.
    (iii) Critical habitat does not include existing features and
structures, and the land beneath them, such as open water, buildings,
roads, aqueducts, railroads, airport runways and buildings, other paved
areas, lawns, and other urban landscaped areas not containing one or
more of the primary constituent elements.
    (3) Index map of critical habitat units for Brodiaea filifolia
(Thread-leaved brodiaea) follows:
BILLING CODE 4310-55-P

[[Page 73855]]
[GRAPHIC]
[TIFF OMITTED] TR13DE05.000
[[Page 73856]]

    (4) All map units are in the Universal Transverse Mercator (UTM)
coordinate system, North American Datum of 1927 (NAD27) projection.
    (5) Map Unit 1: Los Angeles, County, California, from USGS 1:24,000
quadrangle map Glendora California.
    (i) Subunit 1a: Glendora, Los Angeles County, California; land
bounded by the following UTM coordinates (E, N): 422400, 3779900;
422400, 3779800; 422500, 3779800; 422500, 3779700; 422600, 3779700;
422600, 3779300; 422400, 3779300; 422400, 3779200; 422100, 3779200;
422100, 3779300; 422000, 3779300; 422000, 3779500; 421900, 3779500;
421900, 3779800; 422000, 3779800; 422000, 3779900; returning to 422400,
3779900.
    (ii) Map of critical habitat Subunit 1a for Brodiaea filifolia
(Thread-leaved brodiaea) follows:

[[Page 73857]]
[GRAPHIC]
[TIFF OMITTED] TR13DE05.001
[[Page 73858]]

    (iii) Subunit 1b: San Dimas; land bounded by the following UTM
coordinates (E, N): 425300, 3778600; 425300, 3778500; 425400, 3778500;
425400, 3778400; 425500, 3778400; 425500, 3777900; 425400, 3777900;
425400, 3777800; 425300, 3777800; 425300, 3777700; 425200, 3777700;
425200, 3777500; 424700, 3777500; 424700, 3777600; 424600, 3777600;
424600, 3778200; 424700, 3778200; 424700, 3778500; 424900, 3778500;
424900, 3778600; returning to 425300, 3778600.
    (iv) Map of critical habitat Subunit 1b for Brodiaea filifolia
(Thread-leaved brodiaea) follows:

[[Page 73859]]
[GRAPHIC]
[TIFF OMITTED] TR13DE05.002
[[Page 73860]]

    (6) Map Unit 5: Northern San Diego County, California, from USGS
1:24,000 quadrangle maps Margarita Peak, and Fallbrook, California.
    (i) Subunit 5b: Devil Canyon, San Diego County; land bounded by the
following UTM coordinates (E, N): 465000, 3702200; 464800, 3702200;
464800, 3702100; 464500, 3702100; 464500, 3702200; 464300, 3702200;
464300, 3702700; 464400, 3702700; 464400, 3702800; 464800, 3702800;
464800, 3702700; 464900, 3702700; 464900, 3702600; 465000, 3702600;
returning to 465000, 3702200; and land bounded by 465000, 3702200;
465166, 3702200; 465160, 3701865; 465246, 3701865; 465259, 3701960;
465500, 3701955; 465500, 3701500; 465400, 3701500; 465400, 3701300;
465300, 3701300; 465300, 3701200; 464800, 3701200; 464800, 3701300;
464700, 3701300; 464700, 3701700; 464800, 3701700; 464800, 3702000;
464900, 3702000; 464900, 3702100; 465000, 3702100; returning to 465000,
3702200; and land bounded by 465272, 3702200; 465400, 3702200; 465400,
3702100; 465500, 3702100; 465500, 3702078; 465261, 3702085; 465264,
3702184; returning to 465272, 3702200.
    (ii) Map of critical habitat Subunit 5b for Brodiaea filifolia
(Thread-leaved brodiaea), follows:

[[Page 73861]]
[GRAPHIC]
[TIFF OMITTED] TR13DE05.003
[[Page 73862]]

    (7) Map Unit 8: San Marcos, San Diego County, California, from USGS
1:24,000 quadrangle map San Marcos, California.
    (i) Subunit 8d: Upham; land bounded by the following UTM
coordinates (E, N): 481588, 3666600; 481600, 3666600; 481600, 3666627;
481672, 3666791; 482059, 3666627; 481935, 3666339; 481905, 3666339;
481800, 3666382; 481800, 3666400; 481758, 3666400; 481540, 3666490;
returning to 481588, 3666600; and land bounded by: 481765, 3666200;
481800, 3666200; 481800, 3666266; 481893, 3666230; 481892, 3666214;
481890, 3666191; 481866, 3666173; 481848, 3666144; 481729, 3665850;
481700, 3665849; 481700, 3665900; 481655, 3665990; 481635, 3666053;
481622, 3666069; 481612, 3666077; 481611, 3666077; 481600, 3666100;
481561, 3666100; 481401, 3666167; 481454, 3666290; 481750, 3666160;
returning to 481765, 3666200.
    (ii) Map of critical habitat Subunit 8d for Brodiaea filifolia
(Thread-leaved brodiaea) follows:

[[Page 73863]]
[GRAPHIC]
[TIFF OMITTED] TR13DE05.004

    Dated: November 30, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-23693 Filed 12-12-05; 8:45 am]
BILLING CODE 4310-55-C






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