Monday, October 16, 2000

Part II

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha bayensis); Proposed Rule

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DEPARTMENT OF THE INTERIOR (3) You may hand-deliver comments threatened bay checkerspot as occurring to our Sacramento Fish and Wildlife in San Francisco Bay area counties, Fish and Wildlife Service Office, U.S. Fish and Wildlife Service, notably the Counties of San Mateo and 2800 Cottage Way, Suite W 2605, Santa Clara. 50 CFR Part 17 Sacramento, California 95825. The bay checkerspot formerly Public Hearing: We will hold the occurred around San Francisco Bay, RIN 1018±AH61 Newark hearing at the Hilton Newark/ from Twin Peaks and San Bruno Endangered and Threatened Wildlife Fremont, 39900 Balentine Drive, Mountain (west of the Bay) and Contra and Plants; Proposed Designation of Newark, California. Costa County (east of the Bay) south Critical Habitat for the Bay Document Availability: Comments through Santa Clara County. Before the Checkerspot Butterfly (Euphydryas and materials received, as well as introduction of invasive Eurasian editha bayensis) supporting documentation used in the grasses and other weeds in the 1700s, its preparation of this proposed rule, will distribution may have been wider AGENCY: Fish and Wildlife Service, be available for public inspection, by (Service 1998). In the decades preceding Interior. appointment, during normal business listing, the decline of the bay ACTION: Proposed rule. hours at the address listed under (3) checkerspot was primarily attributed to above. loss of habitat and fragmentation of SUMMARY: We, the U.S. Fish and habitat due to increasing urbanization. FOR FURTHER INFORMATION CONTACT: Drought and other extremes of weather Wildlife Service (Service), propose to David Wright or Ken Sanchez at have also been implicated in bay designate critical habitat pursuant to the telephone 916/414–6600. Endangered Species Act of 1973, as checkerspot population declines amended (Act), for the bay checkerspot SUPPLEMENTARY INFORMATION: (Service 1998). Recent research has butterfly (Euphydryas editha bayensis) Background tentatively identified excess nitrogen (bay checkerspot). A total of deposition from polluted air as a threat The bay checkerspot is a medium- approximately 10,597 hectares (26,182 to bay checkerspot habitats, due to its sized butterfly with a wingspan of about acres) of land falls within the fertilizing effect enhancing the growth 5 centimeters (2 inches). The forewings boundaries of the proposed critical of invasive nonnative plants even in have black bands along all the veins on habitat designation. Proposed critical serpentine soil areas (Weiss 1999). the upper wing surface, contrasting habitat is located in San Mateo and The known range of the bay sharply with bright red, yellow, and Santa Clara Counties, California. If this checkerspot is now reduced to Santa white spots. The bay checkerspot differs proposal is made final, section 7 of the Clara and San Mateo Counties, and the from LuEsther’s checkerspot Act requires Federal agencies to insure butterfly is patchily distributed in these (Euphydryas editha luestherae) (a later- that any activity they fund, authorize, or locales. Studies of the bay checkerspot flying, Pedicularis-feeding subspecies of carry out does not result in the have described its distribution as an Inner Coast Range chaparral in central destruction or adverse modification of example of a metapopulation (see California) by being darker, and by critical habitat. Section 4 of the Act literature cited in Service 1998). A lacking a relatively uninterrupted red requires us to consider economic and metapopulation is a group of spatially band demarcating the outer wing third. other impacts of specifying any separated populations that can The black banding on the forewings of particular area as critical habitat. We occasionally exchange dispersing the bay checkerspot gives a more solicit data and comments from the individuals. The populations in a checkered appearance than in other public on all aspects of this proposal, metapopulation are usually thought of subspecies, such as the smaller Quino including data on the economic and as undergoing interdependent checkerspot (Euphydryas editha quino) other impacts of the designation. We extinction and colonization, where of southern California, or the montane may revise this proposal to incorporate individual populations may go extinct, subspecies (for example, the Mono or address new information received but later recolonize from another checkerspot, Euphydryas editha during the comment period. population. Bay checkerspot monoensis) (Service 1998). populations may also exhibit ‘‘pseudo- DATES: We will accept comments until Recent publications have advocated extinction,’’ where the species is not December 15, 2000. We will hold a renaming the bay checkerspot, found, but nonetheless continues to public hearing in Newark, California, on Euphydryas editha bayensis, as inhabit a site and reappears in a October 30, 2000, from 1:00 p.m. to 3:00 Euphydryas editha editha for reasons of subsequent year. Larvae that diapause p.m. and from 6:00 p.m. to 8:00 p.m. historical precedence (Mattoni et al. (spend a period of dormancy as larvae ADDRESSES: Comment Submission: If 1997; Emmel et al. 1998). Mattoni and (caterpillars)), under rocks and deep in you wish to comment, you may submit co-authors (1997) have also suggested soil cracks for more than 1 year may be your comments and materials that Euphydryas editha editha ranges responsible for pseudo-extinctions, concerning this proposal by any one of from the San Francisco Bay area south since dormant larvae are essentially several methods. to Santa Barbara County in California, undetectable in surveys. Because of (1) You may mail written comments and includes both the populations pseudo-extinction and metapopulation to the Field Supervisor, Sacramento commonly known as the bay dynamics, even sites that in some years Fish and Wildlife Office, U.S. Fish and checkerspot and several populations apparently lack the bay checkerspot can Wildlife Service, 2800 Cottage Way, south of Santa Clara County whose be important to the survival and Suite W 2605, Sacramento, California subspecific status has been uncertain. If recovery of the species. 95825. this expanded subspecific assignment is Bay checkerspot butterfly populations (2) You may send comments by accepted by the scientific community, it vary greatly from year to year. Many or electronic mail (e-mail) to would represent a range extension for most individuals of the species live only [email protected]. See the the bay checkerspot. Until such time as a single year, and with high fecundity Public Comments Solicited section we make any new or revised (fertility), high mortality, and sensitivity below for file format and other determination on the taxonomy, and in to weather and perhaps other ecological information about electronic filing. this proposed rule, we treat the conditions, large population swings are

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00002 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61219 common for the bay checkerspot. natural reestablishment of bay On June 30, 1999, the Center for Fluctuations of more than 100-fold have checkerspot populations that have Biological Diversity filed a complaint been observed. These fluctuations are disappeared. Qualitative observations against us challenging our critical not always in synchrony among suggest that bay checkerspots move habitat findings for seven species, populations at different sites. readily over suitable grassland habitat, including the bay checkerspot. On Habitat of the bay checkerspot exists but are more reluctant to cross scrub, August 30, 2000, the United States on shallow, serpentine-derived or woodland, or other unsuitable habitat. District Court for the Northern District similarly droughty or infertile soils, Roads, especially those traveled more of California (Southwest Center for which support the butterfly’s larval food heavily and at higher speeds, present a Biological Diversity v. Bruce Babbitt, et plants as well as nectar sources for risk of death or injury to dispersing bay al., CIV 99–3202 SC) ruled on several of adults. Serpentine soils are high in checkerspots. Where corridors that the species involved, including the bay magnesium and low in calcium, and are facilitate dispersal exist, they may checkerspot. The court ordered us to a strong indicator of habitat value for support the persistence of bay propose critical habitat within 60 days the butterfly. The primary larval host checkerspot populations. of the ruling and to finalize the plant of the bay checkerspot is Plantago The bay checkerspot’s life cycle is designation within 120 days of the erecta (dwarf plantain), an annual, closely tied to host plant biology. Host proposed designation. native plantain. The butterfly usually is plants germinate anytime from early Critical Habitat found associated with Plantago erecta October to late December, and senesce Critical habitat is defined in section 3 in grasslands on serpentine soils, such (dry up and die) from early April to mid of the Act as—(i) the specific areas as soils in the Montara series. In Santa May. Most of the active parts of the bay within the geographical area occupied Clara County, the Inks and Climara soil checkerspot life cycle also occur during by a species, at the time it is listed in series are related soils and often have this period. Adults emerge from pupae inclusions of Montara (U.S. Soil accordance with the Act, on which are (a transitional stage between caterpillar found those physical or biological Conservation Service 1974). Henneke and adult butterfly) in early spring, and and other serpentine soils also occur features (I) essential to the conservation feed on nectar, mate, and lay eggs within the range of the butterfly. of the species and (II) which may during a flight season that typically lasts Populations of the bay checkerspot require special management for 4 to 6 weeks in the period between formerly occurred on San Bruno consideration or protection, and (ii) late February to early May. The eggs Mountain and other locations with soils specific areas outside the geographic hatch and the tiny larvae feed for about that are not serpentine. We believe this area occupied by a species at the time 2 to 3 weeks before entering diapause (a indicates that, with otherwise suitable it is listed, upon determination that temporary cessation of development) in habitat conditions, the bay checkerspot such areas are essential for the mid to late spring. The postdiapause is capable of living in nonserpentine conservation of the species. larvae emerge after winter rains soil areas. ‘‘Conservation’’ means the use of all In many years, bay checkerspot larvae stimulate germination of Plantago, and methods and procedures that are may use a secondary host plant species, feed and bask until they are large necessary to bring an endangered for instance, when dwarf plantain dries enough to pupate and emerge as adults species or a threatened species to the up while prediapause larvae are still (Service 1998). point at which listing under the Act is feeding. Castilleja (Orthocarpus) Previous Federal Action no longer necessary. densiflora (purple owl’s-clover) and Section 4(b)(2) of the Act requires that Castilleja exserta (Orthocarpus On October 21, 1980, we were we base critical habitat proposals upon purpurascens) (exserted paintbrush) are petitioned by Dr. Bruce O. Wilcox, the best scientific and commercial data known secondary host plants that often Dennis D. Murphy, and Dr. Paul R. available, after taking into consideration remain edible later in the season than Ehrlich to list the bay checkerspot as an the economic impact, and any other dwarf plantain. Bay checkerspot adults endangered species. We published a relevant impact, of specifying any also visit flowers for nectar. Nectar Notice of Status Review on February 13, particular area as critical habitat. We plants commonly visited include 1981 (46 FR 12214). Following our may exclude areas from critical habitat Lomatium spp. (desert parsley), status review, we found that listing the designation when the benefits of Lasthenia californica (= chrysostoma) bay checkerspot was warranted but exclusion outweigh the benefits of (California goldfields), Layia platyglossa precluded by other pending listing including the areas within critical (tidy-tips), Muilla maritima, and others. actions (49 FR 2485). We proposed the habitat, provided the exclusion will not Moderate grazing is normally bay checkerspot for listing as result in the extinction of the species compatible with habitat for the bay endangered with critical habitat on (section 4(b)(2) of the Act). checkerspot, since grazing can reduce September 11, 1984 (49 FR 35665), and Designation of critical habitat can the density and height of nonnative listed the species as threatened on help focus conservation activities for a plants that compete with the native September 18, 1987 (52 FR 35366). At listed species by identifying areas that plants supporting the butterfly. the time of listing, because of difficulty contain the physical and biological Adult bay checkerspots are capable of in resolving the value of specific features essential for the conservation of dispersing over long distances. habitats to the species and assessing the that species. Designation of critical Movements of more than 5.6 kilometers activities being conducted in those habitat alerts the public as well as land- (km) (3.5 miles (mi)) have been areas, we concluded that critical habitat managing agencies to the importance of documented (Harrison 1989; Service was not determinable. We published a these areas. 1998). In all dispersal observations and Recovery Plan for Serpentine Soil Critical habitat also identifies areas experiments, long-distance movements Species of the San Francisco Bay Area that may require special management are hard to detect, and thus their (Recovery Plan) in September 1998 that considerations or protection, and may frequency and importance are difficult includes the bay checkerspot (Service provide protection to areas where to quantify. Long-distance dispersal, 1998), as required under section 4(f) of significant threats to the species have especially by fertilized females carrying the Endangered Species Act of 1973, as been identified. Critical habitat receives eggs, is likely to be important to the amended (Act) (16 U.S. C. 1531 et seq.). protection from destruction or adverse

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00003 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 61220 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules modification through required especially larger sites in proximity to requirements; cover or shelter; sites for consultation under section 7 of the Act known occurrences. To maintain genetic breeding, reproduction, or rearing of with regard to actions carried out, and demographic interchange that will offspring; and habitats that are protected funded, or authorized by a Federal help maintain the viability of a regional from disturbance or are representative of agency. Section 7 also requires metapopulation, we included corridor the historic geographical and ecological conferences on Federal actions that are areas that allow movement between distributions of a species. likely to result in the adverse populations. Dispersal is a crucial The primary constituent elements of modification or destruction of proposed function for a species with critical habitat for the bay checkerspot critical habitat. Aside from the metapopulation dynamics like the bay are those habitat components that are protection that may be provided under checkerspot. essential for the primary biological section 7, the Act does not provide other We used data on known and historic needs of foraging, sheltering, breeding, forms of protection to lands designated locations and maps of serpentine soils maturation, and dispersal. The areas we as critical habitat. to identify potentially important areas. propose to designate as critical habitat Section 7(a)(2) of the Act requires Then, through the use of 1990s digital provide some or all of the known Federal agencies to consult with us to orthophotos available through the Bay primary constituent elements for the ensure that any action they authorize, Area Digital GeoResource (BADGER) species, which include: areas of open fund, or carry out is not likely to website (http://badger.parl.com), and grassland; stands of Plantago erecta, jeopardize the continued existence of a limited ground checking, we estimated Castilleja exserta, or Castilleja threatened or endangered species, or the current extent of suitable breeding densiflora; spring flowers providing result in the destruction or adverse habitat. We included in critical habitat nectar; pollinators of the bay modification of critical habitat. In 50 both suitable habitat and areas that link checkerspot’s food and nectar plants; CFR 402.02, ‘‘jeopardize the continued suitable breeding habitat, since these soils derived from serpentinic rock; existence’’ (of a species) is defined as links facilitate movement of individuals stable holes or cracks in the soil and engaging in an activity likely to result in between habitat areas, and are important surface rocks or rock outcrops; wetlands an appreciable reduction in the for dispersal and gene flow and thus to providing moisture during times of likelihood of survival and recovery of a the conservation of the species. spring drought; and space for dispersal Our 1984 proposal to list the bay listed species. ‘‘Destruction or adverse between habitable areas. In addition, checkerspot butterfly with critical modification’’ (of critical habitat) is topography with varied slopes and habitat (49 FR 35665) proposed five defined as a direct or indirect alteration aspects is a primary constituent element critical habitat zones. Four of the five that appreciably diminishes the value of to be conserved when it is present in are included in this proposal, with critical habitat for the survival and combination with one or more of the modifications based on improved recovery of the listed species for which primary constituent elements above. critical habitat was designated. Thus, knowledge of the biology and habitat of Appropriate grassland vegetation the definitions of ‘‘jeopardy’’ to the the species. Since the original proposal, provides cover for larvae, pupae and species and ‘‘adverse modification’’ of the fifth zone (Woodside Zone) has been critical habitat are nearly identical. mostly converted to housing, so we are adults, egg-laying stimuli and sites for Critical habitat identifies specific no longer proposing it for designation as females, and adequate open ground for areas that have features that are critical habitat. Since 1984, a great deal larvae to be able to crawl efficiently in essential to the conservation of a listed of literature on the bay checkerspot search of foraging, basking, diapause, or species and that may require special butterfly, both published and pupation sites (Service 1998). Stands of management considerations or unpublished, has added to our food plants, including nectar plants, are protection. The proposed critical habitat understanding of the species (see important in the butterfly’s life cycle. areas are considered essential to the literature cited in Service 1998; Weiss The bay checkerspot’s primary larval conservation of the bay checkerspot 1999; Weiss and Launer 2000). Based on food plant is Plantago erecta, an annual, butterfly as described in the Recovery this expanded information, we have native plantain. The larvae also often Plan (Service 1998). However, been able to identify habitats and use a secondary food plant species, designating critical habitat does not, in populations that were poorly usually either Castilleja (Orthocarpus) itself, lead to recovery of a listed documented before the mid-1980s, and densiflora (purple owl’s-clover) or species. Designation does not create a assess their significance. Besides the Castilleja exserta (Orthocarpus management plan, establish numerical four previously identified critical purpurascens) (exserted paintbrush). population goals, or prescribe specific habitat zones, this critical habitat These secondary food plants tend to management actions (inside or outside proposal identifies 11 additional habitat remain edible later in the season than of critical habitat). Specific management units essential to the conservation of the the plantain. Bay checkerspot adults recommendations for areas designated bay checkerspot, for a total of 15 critical benefit from visiting flowers for nectar. as critical habitat are most appropriately habitat units. Nectar plants commonly visited include addressed in recovery, conservation, Lomatium spp. (desertparsley), Primary Constituent Elements and management plans, and through Lasthenia californica (= chrysostoma) section 7 consultations and section 10 In accordance with section 3(5)(A)(I) (California goldfields), Layia platyglossa permits. of the Act and regulations at 50 CFR (tidy-tips), Muilla maritima, and others. 424.12(b), in determining which areas to Adequate native pollinators to sustain Methods propose as critical habitat, we must populations of Castilleja and nectar In determining areas that are essential consider those physical and biological species, including but not limited to to conserve the bay checkerspot, we features (primary constituent elements) such groups as bumblebees and solitary used the best scientific information that are essential to the conservation of bees, are important to the value of available to us. This information the species. These include, but are not critical habitat because these plants are included habitat suitability and site- limited to space for individual and dependent on pollinators to reproduce specific species information. We have population growth and for normal and perpetuate their populations in the emphasized areas of current and behavior; food, water, or other area. Plantago erecta is thought to be historical bay checkerspot occurrences, nutritional or physiological self-pollinating.

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The butterfly usually is found during droughts. Bay checkerspot larvae relationship between HCPs and critical associated with grasslands on develop more rapidly when they can habitat designation). serpentine soils, such as the Montara bask in sunlight that penetrates short- In defining critical habitat boundaries, soil series. In Santa Clara County, the statured grassland vegetation. Adults we made an effort to avoid developed Inks and Climara soil series are related also use warm exposures for basking, areas, such as towns and other similar soils and often have inclusions of and find early season nectar plants on lands, that are unlikely to contribute to Montara (U.S. Soil Conservation Service warm south- and west-facing slopes. bay checkerspot conservation. However, 1974). Henneke and other serpentine Criteria Used To Identify Critical the minimum mapping unit that we soils also occur within the range of the Habitat used did not allow us to exclude all butterfly. Serpentine soils often support developed areas, such as towns, or other primary constituent elements, but In an effort to map areas that have the housing developments, or other lands they are not limited to serpentine soils. features essential to the conservation of unlikely to contain the primary Soil structure with stable holes or cracks the species, we used data on known bay constituent elements essential for and surface rocks or rock outcrops checkerspot locations and conservation conservation of the bay checkerspot. provide cover and shelter for bay planning areas that were identified in Existing features and structures within checkerspot larvae seeking diapause the final recovery plan (Service 1998) as the boundaries of the mapped units, sites and basking sites. essential for the recovery of the species. such as buildings, roads, aqueducts, We also considered the existing status Bay checkerspot adults have been railroads, airports, other paved areas, of lands in designating areas as critical observed to fly considerable distances lawns, and other urban landscaped habitat. The bay checkerspot is known during drought conditions to draw areas will not contain one or more of the to occur on State, county, and private water or solutes from moist soils around primary constituent elements. Federal lands. The range of critical habitat wetlands (‘‘puddling,’’ Launer et al. actions limited to those areas, therefore, extends in the south from the San 1993). Triggering of the puddling would not trigger a section 7 Martin area, in Santa Clara County, behavior by drought conditions suggests consultation, unless they affect the north to San Bruno Mountain in San it is a directed, adaptive behavior, and Mateo County. We could not depend on species and/or primary constituent that the butterflies are seeking out moist Federal lands for critical habitat elements in adjacent critical habitat. areas during times of water or heat designation because we are not Proposed Critical Habitat Designation stress to obtain essential nutrients or currently aware of any Federal lands water. within the range of the bay checkerspot The approximate area encompassing Adult bay checkerspots are capable of that can be inhabited by the butterfly. proposed critical habitat by land dispersing over long distances. We are not aware of any Tribal lands in ownership is shown in Table 1. Lands Movements of more than 5.6 kilometers or near our proposed critical habitat proposed are under private and State (km) (3.5 miles (mi)) have been units for the bay checkerspot. However, and local ownership. The species is not documented (see Service 1998), and should we learn of any Tribal lands in known to occur or to have historically longer movements are possible. Adult the vicinity of the critical habitat occurred on Federal lands. Lands dispersal, especially by fertilized designation subsequent to this proposal, proposed as critical habitat have been females carrying eggs, is vital to the we will coordinate with the Tribes divided into 15 Critical Habitat Units. maintenance of natural bay checkerspot before making a final determination as Critical habitat proposed for the bay metapopulation structure, which to whether any Tribal lands should be checkerspot includes 10,597 hectares requires reestablishment or included as critical habitat for the bay (ha) (26,182 acres (ac)), with 806 ha replenishment of populations that are at checkerspot. (1,992 ac) in San Mateo County and or near local extinction. Roads, Section 10(a) of the Act authorizes us 9,791 ha (24,190 ac) in Santa Clara especially those traveled more heavily to issue permits to take listed species County. Because the bay checkerspot is and at higher speeds, present a risk of incidental to otherwise lawful activities. nearly confined to island-like patches of death or injury to dispersing bay An incidental take permit application habitat, its critical habitat is easily checkerspots. Where open spaces exist must be supported by a habitat categorized into separate areas or units that facilitate dispersal, they may conservation plan (HCP) that identifies (see maps). We present brief support the persistence of bay conservation measures that the descriptions of each unit, and our checkerspot populations and permittee agrees to implement for the reasons for proposing it as critical metapopulations. Some habitats or land species to minimize and mitigate the habitat, below. uses are thought to be more suitable for impacts of the requested incidental take. Conserving the butterfly includes the dispersal than others; for example, One small, short-term HCP covers the need to reestablish historic populations grassland may be more readily crossed bay checkerspot in about 10 acres of of the species to areas within several of than woodland or landscaped areas. But critical habitat through November 2001. the units, in order to secure the butterfly documented long-distance movements This HCP permits temporary project- in representative sites in its former demonstrate that the butterfly is related impacts from electric range, and in a range of habitat and sometimes capable of crossing a variety transmission line work. To date, project climate conditions. Returning the of substrates (Service 1998). construction anticipated to affect the butterfly to good representatives of its Topographic diversity provides bay checkerspot is substantially former diversity of sites and habitat and opportunities for early season warmth complete (see the Relationship to climate conditions is necessary to as well as cool north- and east-facing Habitat Conservation Plans section reduce the long-term risk of range-wide slopes that are a refuge for the species below for additional information on the extinction of the species (Service 1998).

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TABLE 1.ÐAPPROXIMATE CRITICAL HABITAT IN HECTARES (HA) AND ACRES (AC) BY COUNTY AND LAND OWNERSHIP [Area estimates reflect critical habitat unit boundaries; however, not all the areas within those broad boundaries, such as cities, towns, or other developments, contain habitat features considered essential to the survival of the bay checkerspot butterfly]

County Federal Local/State Private Total

San Mateo ...... 0 519 ha 287 ha 806 ha (1,283 ac) (709 ac) (1,992 ac) Santa Clara ...... 0 1,704 ha 8,087 ha 9,791 ha (4,210 ac) (19,980 ac) (24,190 ac) Total ...... 0 2,223 ha 8,374 ha 10,597 ha (5,493 ac) (20,689 ac) (26,182 ac)

Unit 1. Edgewood Park/Triangle Unit Unit 3. San Bruno Mountain Unit Kirby core population area described in This unit also occurs in San Mateo the recovery plan, with some Occurring in San Mateo County, this intervening habitable areas and unit comprises 217 ha (535 ac) in T.5 S., County, with approximately 303 ha (749 ac) in T.3 S., R.5 W. (Mount Diablo adequate dispersal corridors. Over 40 ha R.4 W. (Mount Diablo meridian/base (100 ac) of mapped serpentine soils in line). Included is most of Edgewood meridian/base line), above the 152 m (500 ft) elevation contour and east of the several large to small patches occur Natural Preserve, a county park within the unit. In addition to the southeast of the junction of Edgewood western Pacific Gas and Electric transmission corridor on San Bruno significance of its position establishing Road and I–280, and watershed lands of the outer perimeter of the range of the the San Francisco Water Department Mountain. This unit is mostly within San Bruno Mountain State and County species, the recovery plan makes the within the triangle formed by I–280, protection of large, good quality habitat Edgewood Road, and Canada Road, as Park, and is inside the boundaries of the San Bruno Mountain Area Habitat areas near core populations, such as well as a small additional area of this, a high priority (Service 1998). serpentine soil on the west side of Conservation Plan area. The bay Canada Road. Much of this area also checkerspot formerly inhabited this Unit 5. San Martin Unit falls within the San Francisco State Fish area, but is believed to have been extirpated around 1986 by a This unit includes 237 ha (586 ac) and Game Refuge. The area supports the west of San Martin, in the western Edgewood population of the butterfly combination of factors, including over- collection and a fire that burned its foothills of the Santa Clara Valley in discussed in the species’ recovery plan, southern Santa Clara County (T.9 S., R.3 which is the main population of the San habitat. However, this unit has supported a substantial bay checkerspot E). Included in the designated critical Mateo metapopulation of the bay population in the past, and it is habitat are extensive areas of serpentine checkerspot (Service 1998). Without the reasonable to expect that the butterfly soils and intervening areas that may Edgewood population the San Mateo can be reestablished here. support habitat or be needed for metapopulation would almost certainly San Bruno Mountain represents the dispersal. Regular occupation of the unit go extinct, resulting in the loss of one most northerly part of the species’ by the bay checkerspot has been of only two metapopulations of the bay former range on the San Francisco documented, although no recent checkerspot and a significant range peninsula with reasonably good quantitative surveys are available of this reduction for the species. This conditions to support the butterfly. The population. The unit lies entirely on population is also the northernmost San Bruno Mountain unit is essential as private lands in unincorporated Santa remaining population of the species. a supporting element of the San Mateo Clara County, about 6.4 km (4 mi) west- The unit contains considerable areas of metapopulation and a backup to the southwest of the Bear Ranch unit and 11 good habitat, although additional Edgewood and Jasper Ridge km (7 mi) south of the Kirby core area. management attention may be needed populations. This is the second population at the for the butterfly to thrive here. southern periphery of the range. The Unit 4. Bear Ranch Unit Unit 2. Jasper Ridge Unit recovery plan makes the protection of The Bear Ranch unit, totaling 250 ha large, good quality habitat areas near Occurring within San Mateo County, (618 ac), lies west of Coyote Lake core populations, such as this, a high the unit covers 287 ha (709 ac) in (Coyote Reservoir) in the eastern hills of priority (Service 1998). We are not Stanford University’s Jasper Ridge the Santa Clara Valley, in southern aware of any public lands in the unit. Biological Preserve, in T.6 S., R.3 W. Santa Clara County (T.9 S., R.4 E. and (Mount Diablo meridian/base line). T.10 S., R.4 E., Mount Diablo meridian/ Unit 6. Communications Hill Unit There are decades of data and dozens of base line). The unit is named for a Communications Hill, and adjacent published scientific papers about the ranching property that partly occurs in hilltops in south-central San Jose, are Jasper Ridge population of the bay the unit. The ranch and lands, including formed by outcroppings of serpentine checkerspot. The population has and surrounding the unit, are now rock, with grasslands capable of declined severely in recent years, and owned and managed by the Santa Clara supporting the bay checkerspot. This may now be extirpated. However, we County Parks and Recreation unit occurs in Santa Clara County and are confident that a stable population of Department. This location represents covers 179 ha (443 ac) of mostly the species can be restored to Jasper one of the most recent population undeveloped land. It also crosses a Ridge. The Jasper Ridge population is discoveries of the bay checkerspot and major road and railroad tracks, and essential as a supporting element of the has been documented for several years includes a quarry that we believe, after San Mateo metapopulation, and a as a persistent population. The appropriate reclamation, could be backup to the Edgewood and population is also one of the most restored to bay checkerspot habitat. The prospective San Bruno Mountain southerly occurrences of the butterfly. It butterfly has been documented on populations. lies about 10 km (6 mi) southeast of the Communications Hill in the past, but no

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00006 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61223 recent comprehensive surveys for the Diablo meridian/base line). It contains population dynamics, and conservation species have been conducted in the the Kirby area for the bay checkerspot needs of the species (see literature cited area. Whether the unit is currently discussed in the species’ Recovery Plan in Service 1998). occupied is not known. The recovery (Service 1998). The ridge, informally plan calls for conservation of larger known as Coyote Ridge, runs northwest Unit 9. Morgan Hill Unit habitat areas currently or historically to southeast, parallel to and east of The Morgan Hill unit in Santa Clara occupied by the bay checkerspot. This Highway 101 from Yerba Buena Road to County includes 374 ha (925 ac) location also represents the Anderson Reservoir in Santa Clara northwest of the City of Morgan Hill in northwestern-most remnant of the Santa County, and forms the eastern slope of Santa Clara County (T.9 S., R.2 E., T.9 Clara County metapopulation. The unit the Santa Clara Valley (U.S. Geological S., R.3 E., Mount Diablo meridian/base is surrounded by Curtner Avenue, Survey (USGS) 7.5 minute quadrangles line) . It lies less than 3.2 km (2 mi) Almaden Expressway, Hillsdale San Jose East, Lick Observatory, Santa southwest of the Coyote Ridge unit and Avenue, and Monterey Road (T.7 S., R.1 Teresa Hills, and Morgan Hill. The ridge about 3.2 km (2 mi) southeast of the E., Mount Diablo meridian/base line). is not named on these maps). Coyote Much of this unit lies on private lands Kalana Hills unit. This is the area Ridge also parallels the Silver Creek described as ‘‘north of Llagas Avenue’’ within unincorporated lands, with a Fault and Silver Creek itself. Extensive smaller area in the City of San Jose. in our 1998 recovery plan. The unit is serpentine soil areas, and four partly within the limits of the City of Portions of a Santa Clara County population areas for the bay checkerspot communications facility and a San Jose Morgan Hill and partly on private lands (Kirby, Metcalf, San Felipe, and Silver in unincorporated Santa Clara County. water company facility may fall within Creek Hills), lie on or adjacent to this Murphy Springs Park, a small city park, the unit. Only currently undeveloped ridge and fault system (Service 1998). is within the unit. The Morgan Hill unit areas supporting the primary Metcalf Canyon, Silver Creek, and has large areas of serpentine soils and constituent elements of habitat for the nonserpentine soil areas create natural grassland with a variety of slope butterfly would be subject to regulatory divisions among these four population exposures, suitable for the bay oversight of any Federal actions. areas. The Kirby unit is the checkerspot. The unit has been southernmost of four critical habitat Unit 7. Kalana Hills Unit documented to be occupied by the units corresponding to the four The Kalana Hills unit in Santa Clara butterfly in the past, as well as in more population areas along Coyote Ridge, County comprises 240 ha (592 ac) on the recent surveys in the past 2 to 3 years. and runs along this ridge east of southwest side of the Santa Clara Valley Because of its large habitat area and Highway 101 and Coyote Creek from between Laguna Avenue and San Bruno Metcalf Canyon south to Anderson proximity to core populations of the bay Avenue (T.9 S., R.2 E, Mount Diablo Lake. The northern boundary of the checkerspot, the recovery plan meridian/base line). Four serpentine considers protection of this area outcrops form hills or hillsides in this Kirby unit abuts the Metcalf unit. The northwest tip of the Kirby unit also essential to the conservation of the area. At least one population of the bay species (Service 1998). checkerspot has been documented on connects to the Tulare Hill Corridor one or all of these outcrops in recent unit. Unit 10. Metcalf Unit surveys. This unit also includes The Kirby critical habitat unit This unit includes 1,616 ha (3,994 ac) intervening areas that connect the regularly supports one of the largest in Santa Clara County, east of Highway outcrops. The Coyote Ridge unit lies populations of the bay checkerspot, and 101, south of Silver Creek Valley Road, about 3.2 km (2 mi) to the northeast, the is considered one of the centers of the north of Metcalf Canyon, and west of Santa Teresa unit about 2 km (1.2 mi) species’ Santa Clara County Silver Creek (T.8 S., R.2 E., Mount to the northwest, the San Vicente-Calero metapopulation. The recovery plan Diablo meridian/base line). The unit unit about 3.2 km (2 mi) to the west, and considers protection of the area of the the Morgan Hill unit about 3.2 km (2 mi) highest priority for conservation of the contains the Metcalf population area for to the southeast. Because of its species. The unit contains several the bay checkerspot, one of the four proximity to several other, large hundred acres of diverse serpentine largest habitat areas and three largest population centers for the butterfly, we grassland habitat as well as nectaring current population centers for the expect the Kalana Hills unit to be areas, seasonal wetlands, and dispersal butterfly (Service 1998). Hundreds of regularly occupied by the species. If, as areas. The unit includes lands within acres of serpentine soils and thousands is possible given the bay checkerspot’s the limits of the City of San Jose, private of bay checkerspots occur within the large population swings, the butterfly’s lands in unincorporated Santa Clara unit. This area is considered one of the population in the unit were to die out, County, and small areas in the City of centers of the species’ Santa Clara it is likely to be quickly reestablished by Morgan Hill. Public lands in this unit County metapopulation. The recovery bay checkerspots immigrating from include the Santa Clara County Field plan considers protection of the area of adjacent sites. We are not aware of any Sports Park and portions of Santa Clara the highest priority for conservation of public lands in the unit. A portion of County Motorcycle Park, Anderson Lake the butterfly. This unit adjoins the Kirby the largest and northernmost serpentine County Park, Coyote Creek Park, and unit to the south, San Felipe unit to the outcrop is within the limits of the City lands of the Santa Clara Valley Water east, Silver Creek Hills unit to the north, of San Jose; the remainder of the unit is District. A 101 ha (250 ac) reserve, and Tulare Hill Corridor unit to the on private lands in unincorporated leased by Waste Management Inc. on west, and provides crucial habitat Santa Clara County. behalf of the Kirby Conservation Trust connectivity for butterfly dispersal to further conservation of the bay among these areas. The Metcalf unit lies Unit 8. Kirby Unit checkerspot, also falls within the unit. in the City of San Jose and on private The Kirby critical habitat unit The Kirby Conservation Trust has lands in unincorporated Santa Clara includes 2,855 ha (7,053 ac) along the funded extensive research on the bay County. Portions of Santa Clara County southern portion of ‘‘Coyote Ridge’’ in checkerspot for more than a decade at Motorcycle Park, Coyote Creek Park, Santa Clara County (T.8 S., R.2 E., T.8 the lease site, greatly improving our and lands of Santa Clara Valley Water S., R.3 E., and T.9 S., R.3 E., Mount understanding of the ecology, District fall within the unit.

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Unit 11. San Felipe Unit located on the ground, or because of known to support the butterfly now, and This unit includes 404 ha (998 ac) in mapping uncertainties. have supported the species in the past, Santa Clara County, southwest of San In the last several years, a small but no current comprehensive survey of population of the bay checkerspot has Felipe Road and north of Metcalf Road the butterfly in the area is available. We been documented in the Silver Creek (T.8 S., R.2 E., Mount Diablo meridian/ believe that the Santa Teresa Hills could unit, and the area has a long history of base line), primarily on private lands in support a significant population of bay much larger populations. Portions of the unincorporated county lands, but also checkerspots. In addition to adding a unit known to have been inhabited by within San Jose city limits. The unit fifth substantial population to the Santa the butterfly in the past have not been contains the San Felipe population area Clara County metapopulation, surveyed recently, or are currently in for the bay checkerspot, one of the four conservation and management of the degraded condition, or both. We believe Santa Teresa Hills population would largest habitat areas and three largest that the Silver Creek Hills population is support development of a strong current population centers for the likely to increase, and that much of the population of the butterfly in a slightly butterfly (Service 1998). This area is degraded area could be restored to cooler, moister area of the county, at a considered one of the centers of the useful breeding habitat. The Silver site that may experience less air species’ Santa Clara County Creek unit has extensive, diverse, and pollution than the more eastern units. metapopulation. The recovery plan high-quality habitat, and represents the The Santa Teresa Hills critical habitat considers protection of the area of the northernmost unit of the Santa Clara unit is intended to include most highest priority for conservation of the County metapopulation. The Silver undeveloped habitat in the area, as well butterfly. Several hundred acres of Creek unit provides a population as intervening areas that are unsurveyed serpentine soils occur within the unit reservoir critical to the survival of the or less suitable but needed for dispersal with nectaring and dispersal areas. We Santa Clara County metapopulation of among higher-quality areas. The unit are not aware of any public lands in the bay checkerspots—the larger and more lies north of Bailey Avenue, McKean unit. viable of the two remaining Road, and Almaden Road, south of Unit 12. Silver Creek Unit metapopulations (Service 1998). developed areas of the city of Santa Clara, and west of Santa Teresa The Silver Creek unit comprises 700 Unit 13. San Vicente-Calero Unit Boulevard. The unit abuts the Tulare ha (1,730 ac), primarily within the The San Vicente-Calero unit contains Hill Corridor unit. limits of the City of San Jose, but with 759 ha (1,875 ac) within and to the west some area on private lands in of Calero County Park, Santa Clara Unit 15. Tulare Hill Corridor Unit unincorporated Santa Clara County (T.7 County (T.8 S., R.1 E., T.8 S., R.2 E., T.9 The Tulare Hill Corridor unit, 355 ha S., R.1 E., T.7 S., R.2 E., T.8 S., R.2 E., S., R.1 E., and T.9 S., R.2 E., Mount (876 ac) in Santa Clara County, connects Mount Diablo meridian/base line). This Diablo meridian/base line). This area the Coyote Ridge (Kirby and Metcalf, unit is surrounded by Highway 101 and supports a known population of the bay and through them, San Felipe and Silver Coyote Creek on the west, Yerba Buena checkerspot in a large area of good- Creek) and Santa Teresa units. Tulare Road on the north, Silver Creek on the quality habitat; other areas within the Hill is a prominent serpentine hill that east and northeast, and Silver Creek unit that are apparently suitable for the rises from the middle of the Santa Clara Valley Road on the south. The unit butterfly have not been surveyed. The Valley in southern San Jose, west of the includes the Silver Creek Hills unit is also within butterfly dispersal crossing of Metcalf Road and Highway population area for the bay checkerspot distance of the Santa Teresa Hills unit 101 (T.8 S., R.2 E., Mount Diablo (Service 1998). It includes nearly 400 ha (see below), which we consider to be meridian/base line). Extensive habitat (1,000 ac) of contiguous serpentine capable of supporting a very large on the hill is currently occupied by the soils, as well as other scattered population of the butterfly, and the bay checkerspot, and is essential both as serpentine outcrops, as well as habitat Kalana Hills unit (number 9, above), a population center and for dispersal less suitable for breeding but needed for which are themselves accessible to and across the valley. The Metcalf and Kirby nectar-feeding or dispersal. Small areas from other units. Therefore we believe populations of the bay checkerspot lie of public lands in this unit include the San Vicente-Calero population can less than 1 kilometer (0.62 mi) to the portions of Coyote Creek Park and Silver contribute significantly to maintaining northeast, separated by a major highway Creek Linear Park. A 52 ha (128 ac) the Santa Clara County metapopulation and a narrow band of other unfavorable private bay checkerspot preserve of the bay checkerspot. For all these habitat. The Santa Teresa Hills dedicated by Shea Homes, the Silver reasons the recovery plan considers population area for the species lies Creek Valley Country Club Butterfly protection of this area essential to the about 2 km (1.2 mi) to the southwest, Habitat Reserve, lies within this unit. conservation of the species. The unit is with dispersal habitat in between. We Also included is the proposed Ranch on south of McKean Road and east of the believe the long-term viability of the bay Silver Creek development, a 28 ha (70 town of New Almaden, Almaden Road, checkerspot depends on the presence of ac) preserve proposed by William Lyon and Alamitos Creek. It lies about 1.6 km a corridor for dispersal of adults to and Homes (former Presley Homes), and the (1 mi) south of the Santa Teresa unit from the Santa Teresa Hills and Coyote proposed Ryland Homes Silver Ridge and about 3.2 km (2 mi) west of the Ridge (Service 1998). Tulare Hill is an development and private open space. Kalana Hills unit. Portions of the unit ideal location for such a corridor Several electric transmission lines and outside the county park are within the because of the narrow extent of the two major natural gas lines cross the limits of the City of San Jose. valley and the development in this unit. Not all of the area within the unit location, the presence of high elevations is capable of supporting the butterfly or Unit 14. Santa Teresa Hills Unit on the hill that may attract butterflies its primary constituent elements, and The Santa Teresa Hills unit includes over busy roads and developed areas, such areas would not be subject to 1,821 ha (4,500 ac) in Santa Clara and the presence of suitable habitat on section 7 consultation. However, we County (T.8 S., R.1 E. and T.8 S., R.2 E., Tulare Hill itself. Migrant butterflies have included these areas in the critical Mount Diablo meridian/base line) with from either Santa Teresa Hills or Coyote habitat designation in the interests of extensive areas of serpentine soils. Ridge may settle on Tulare Hill, having a clear boundary that is readily Portions of the Santa Teresa Hills are contributing individuals and genetic

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00008 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61225 diversity to the population there, and When a species is listed or critical Federal Emergency Management Agency adults from Tulare Hill may migrate to habitat is designated, section 7(a)(2) (FEMA)) will also be subject to the the adjacent habitat areas. requires Federal agencies to ensure that section 7 consultation process. Federal Public lands within the designated activities they authorize, fund, or carry actions not affecting listed species or unit include parts of Coyote Creek Park, out are not likely to jeopardize the critical habitat, and actions on non- Metcalf Park, and Santa Teresa County continued existence of the species or to Federal lands that are not federally Park. Roughly half of Tulare Hill itself destroy or adversely modify its critical funded, authorized, or permitted do not is within the limits of the City of San habitat. If a Federal action may affect a require section 7 consultation. Not all of Jose, the remainder on private lands in listed species or its critical habitat, the the areas within some of the units are unincorporated Santa Clara County. responsible Federal agency must enter capable of supporting the butterfly or its Several major electrical transmission into consultation with us. Through this primary constituent elements, and such lines cross the unit. Some areas within consultation, we would advise the areas would not be subject to section 7 the unit are not inhabited by bay agencies whether the permitted actions consultation. However, in the interests checkerspot individuals but can would likely jeopardize the continued of having a clear boundary that is function as dispersal corridor. existence of the species or destroy or readily located on the ground, or adversely modify critical habitat. because of mapping uncertainties, we Effects of Critical Habitat Designation When we issue a biological opinion have included some areas that may not Section 7 Consultation concluding that a project is likely to be critical habitat within some units result in the destruction or adverse described below. Section 7(a) of the Act requires that modification of critical habitat, we also To properly portray the effects of Federal agencies, including the Service, provide reasonable and prudent critical habitat designation, we must must ensure that actions they fund, alternatives to the project, if any are first compare the section 7 requirements authorize, or carry out do not destroy or identifiable. Reasonable and prudent for actions that may affect critical adversely modify critical habitat to the alternatives are defined at 50 CFR habitat with the requirements for extent that the action appreciably 402.02 as alternative actions identified actions that may affect a listed species. diminishes the value of the critical during consultation that can be Section 7 prohibits actions funded, habitat for the survival and recovery of implemented in a manner consistent authorized, or carried out by Federal the species. Individuals, organizations, with the intended purpose of the action, agencies from jeopardizing the States, local governments, and other that are consistent with the scope of the continued existence of a listed species non-Federal entities are affected by the Federal agency’s legal authority and or destroying or adversely modifying the designation of critical habitat only if jurisdiction, that are economically and listed species’ critical habitat. Actions their actions occur on Federal lands, technologically feasible, and that the likely to ‘‘jeopardize the continued require a Federal permit, license, or Director believes would avoid the existence’’ of a species are those that other authorization, or involve Federal likelihood of jeopardizing the continued would appreciably reduce the funding. existence of listed species or resulting in likelihood of the species’ survival and Under section 7(a) of the Act, Federal the destruction or adverse modification recovery. Actions likely to ‘‘destroy or agencies, including the Service, evaluate of critical habitat. Reasonable and adversely modify’’ critical habitat are their actions with respect to any species prudent alternatives can vary from those that would appreciably reduce the that is proposed or listed as endangered slight project modifications to extensive value of critical habitat for the survival or threatened and with respect to its redesign or relocation of the project. and recovery of the listed species. critical habitat, if any is designated or Costs associated with implementing a Common to both definitions is an proposed. Regulations implementing reasonable and prudent alternative are appreciable detrimental effect on both this interagency cooperation provision similarly variable. survival and recovery of a listed species. of the Act are codified at 50 CFR part Regulations at 50 CFR 402.16 require Given the similarity of these definitions, 402. Section 7(a)(4) and regulations at Federal agencies to reinitiate actions likely to destroy or adversely 50 CFR 402.10 requires Federal agencies consultation on previously reviewed modify critical habitat would almost to confer with us on any action that is actions in instances where critical always result in jeopardy to the species likely to jeopardize the continued habitat is subsequently designated and concerned, particularly when the area of existence of a proposed species or result the Federal agency has retained the proposed action is occupied by the in destruction or adverse modification discretionary involvement or control species concerned. Designation of of proposed critical habitat. Conference over the action or such discretionary critical habitat in areas occupied by the reports provide conservation involvement or control is authorized by bay checkerspot is not likely to result in recommendations to assist the agency in law. Consequently, some Federal a significant regulatory burden above eliminating conflicts that may be caused agencies may request reinitiation of that already in place due to the presence by the proposed action. The consultation or conferencing with us on of the listed species. For some conservation recommendations in a actions for which formal consultation previously reviewed actions in conference report are advisory. has been completed, if those actions instances where critical habitat is We may issue a formal conference may affect designated critical habitat or subsequently designated. In those cases report if requested by a Federal agency. adversely modify or destroy proposed where activities occur on designated Formal conference reports on proposed critical habitat. critical habitat where bay checkerspot critical habitat contain a biological Activities on private or State lands are not found at the time of the action, opinion that is prepared according to 50 requiring a permit from a Federal an additional section 7 consultation CFR 402.14, as if critical habitat were agency, such as a permit from the U.S. with the Service not previously required designated. If such designation occurs, Army Corps of Engineers (Corps) under may be necessary for actions funded, we may adopt the formal conference section 404 of the Clean Water Act, or authorized, or carried out by Federal report as a biological opinion, if no a section 10(a)(1)(B) permit from the agencies. significant new information or changes Service, or some other Federal action, Section 4(b)(8) of the Act requires us in the action alter the content of the including funding (e.g., from the Federal to briefly describe and evaluate in any opinion (see 50 CFR 402.10(d)). Highway Administration (FHWA) or proposed or final regulation that

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00009 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 61226 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules designates critical habitat those Any of the above activities that In addition, an HCP application must activities involving a Federal action that appreciably diminish the value of itself be consulted upon. While this may adversely modify such habitat or critical habitat to the degree that they consultation will not look specifically at that may be affected by such affect the survival and recovery of the the issue of adverse modification of designation. When determining whether bay checkerpot may be considered an critical habitat, it will look at the very any of these activities may adversely adverse modification of critical habitat. similar concept of jeopardy to the listed modify critical habitat, we base our We note that such activities may also species in the plan area. Since HCPs, analysis on the effects of the action on jeopardize the continued existence of particularly large regional HCPs, the entire critical habitat area and not the species. address land use within the plan just on the portion where the activity If you have questions regarding boundaries, habitat issues within the will occur. Adverse effects on whether specific activities will plan boundaries have been thoroughly constituent elements or segments of constitute destruction or adverse addressed in the HCP and the critical habitat generally do not result in modification of critical habitat resulting consultation on the HCP. Our an adverse modification determination from a Federal action, contact the Field experience is that under most unless that loss, when added to the Supervisor, Sacramento Fish and circumstances consultations under the environmental baseline, is likely to Wildlife Office (see ADDRESSES section). jeopardy standard will reach the same appreciably diminish the capability of Requests for copies of the regulations on result as consultations under the the critical habitat to satisfy essential listed wildlife, and inquiries about adverse modification standard. requirements of the species. In other prohibitions and permits may be Additional measures to protect the words, activities that may destroy or addressed to the U.S. Fish and Wildlife habitat from adverse modificationare adversely modify critical habitat include Service, Branch of Endangered Species, not likely to be required. those that alter the primary constituent 911 N.E. 11th Ave, Portland, OR 97232 Further, HCPs typically provide for elements (defined above) to an extent (telephone 503/231–2063; facsimile greater conservation benefits to a that the value of critical habitat for both 503/231–6243). covered species than section 7 the survival and recovery of the bay consultations because HCPs assure the checkerspot is appreciably diminished. Relationship to Habitat Conservation long term protection and management of Activities that, when carried out, Plans a covered species and its habitat, and funded, or authorized by a Federal Section 4(b)(2) of the Act allows us funding for such management through the standards found in the 5-Point agency, may affect critical habitat and broad discretion to exclude from critical Policy for HCPs (64 FR 35242) and the require that a section 7 consultation be habitat designation areas where the HCP No Surprises regulation (63 FR conducted include, but are not limited benefits of exclusion outweigh the 8859). Such assurances are typically not to: benefits of designation, provided the provided by section 7 consultations (1) Ground disturbance, including but exclusion will not result in the which, in contrast to HCPs, often do not not limited to, grading, discing, ripping extinction of the species. We believe commit the project proponent to long and tilling; that in most instances the benefits of (2) Removing, destroying, or altering term special management or protections. excluding HCPs from critical habitat vegetation (e.g., including altering Thus the lands covered by a designations will outweigh the benefits grazing practices and seeding); consultation typically will not provide (3) Water contracts, transfers, of including them. the extensive benefits of an HCP. diversion, impoundment, application, The benefits of including HCP lands The development and implementation or conveyance, groundwater pumping, in critical habitat are normally small. of HCPs provide other important irrigation, or other activity that wets or Activities in designated critical habitat conservation benefits, including the inundates habitat, creates barriers or that may affect critical habitat require development of biological information deterrents to dispersal, or results in consultation under section 7 of the Act. to guide conservation efforts and assist habitat being converted to lower values This is the major benefit of designating in species recovery and the creation of for the butterfly (e.g., conversion to lands as critical habitat. Consultation innovative solutions to conserve species urban development, vineyards, would ensure that adequate protection while allowing for development. The landscaping, etc.); is provided to avoid adverse educational benefits of critical habitat, (4) Sale, exchange, or lease of critical modification of critical habitat. including informing the public of areas habitat that is likely to result in the However, our experience indicates that that are important for the long-term habitat being destroyed or degraded; where HCPs are in place, this benefit is survival and conservation of the species, (5) Recreational activities that small or non-existent. Currently are essentially the same as those that significantly deter the use of critical approved and permitted HCPs are would occur from the public notice and habitat by bay checkerspots or alter designed to ensure the long-term comment procedures required to habitat through associated maintenance survival of covered species within the establish an HCP, as well as the public activities (e.g., off-road vehicle parks, plan area. The lands that we would find participation that occurs in the golf courses, trail construction or essential for the conservation of the development of many regional HCPs. maintenance); species, and thus fall under the first For these reasons, then, we believe that (6) Construction activities that destroy prong of the definition of critical habitat designation of critical habitat has little or degrade critical habitat (e.g., urban would, where we have approved HCPs benefit in areas covered by HCPs. and suburban development, building of and the species is a covered species In contrast, the benefits of excluding recreational facilities such as off-road under the HCP, normally be protected in HCPs from being designated as critical vehicle parks and golf courses, road reserves and other conservation lands. habitat are more significant. In response building, drilling, mining, quarrying HCPs and their implementation to other critical habitat proposals, we and associated reclamation activities); agreements outline management have received comments about the and measures and protections for additional regulatory and economic (7) Application of pesticides, conservation lands that are crafted to burden of designating critical habitat. herbicides, fertilizers, or other protect, restore, and enhance their value These include the need for additional chemicals or biological agents. as habitat for covered species. consultation with the Service and the

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00010 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61227 need for additional surveys and Given this general analysis, we expect The process also enables us to conduct information gathering to complete these to analyze the specific benefits in each detailed evaluations of the importance consultations. HCP applicants have also particular critical habitat designation of such lands to the long term survival stated that they are concerned that third because not all HCPs are alike with of the species in the context of parties may challenge HCPs on the basis regard to species coverage and design. constructing a biologically configured that they result in adverse modification Within this designation we need to system of interlinked habitat blocks. or destruction of critical habitat. evaluate completed and legally We will provide technical assistance The benefits of excluding HCPs operative HCPs in the range of the and work closely with applicants include relieving landowners, California gnatcatcher to determine throughout the development of future communities and counties of any whether the benefits of excluding these HCPs to identify lands essential for the additional minor regulatory review that particular areas outweigh the benefits of long-term conservation of the bay might be imposed by critical habitat. including them. checkerspot and appropriate This benefit is important given our past The San Bruno Mountain Area HCP management for those lands. representations that once an HCP is overlaps with the proposed critical Preliminary HCPs are being discussed negotiated and approved by us after habitat designation on San Bruno for listed and non-listed species within public comment, activities consistent Mountain. The butterfly is believed to the range of the bay checkerspot in areas with the plan will satisfy the have been extirpated from the mountain proposed herein as critical habitat. requirements of section 10(a)(1)(B) of since about 1986. The San Bruno These HCPs, coupled with appropriate the Act. Many HCPs, particularly large Mountain Area HCP does not discuss adaptive management, should provide regional HCPs, take many years to the bay checkerspot in detail, and the for the conservation of the species. Incidental Take Permit for this HCP develop and, upon completion, become Economic Analysis regional conservation plans that are currently does not include the bay consistent with the recovery of covered checkerspot butterfly. Therefore, we Section 4(b)(2) of the Act requires us species. Many of these regional plans have not excluded the area covered by to designate critical habitat on the basis benefit many species, both listed and this HCP from the proposed critical of the best scientific and commercial unlisted. Imposing an additional habitat designation. Any future Service information available and to consider regulatory review after HCP completion involvement in activities on San Bruno the economic and other relevant not only results in minor, if any, Mountain, such as habitat restoration, impacts of designating a particular area additional benefit to the species, it may may require section 7 consultation if as critical habitat. We may exclude areas jeopardize conservation efforts and there are likely to be effects on bay from critical habitat upon a partnerships in many areas and could be checkerspot critical habitat. determination that the benefits of the The Pacific Gas & Electric (PG & E) viewed as a disincentive to those exclusions outweigh the benefits of Metcalf-Edenvale/Metcalf-Mont Vista developing HCPs. Excluding HCPs specifying the areas as critical habitat. HCP covers only about 4 ha (10 ac) in We cannot exclude the areas from provides us with an opportunity to the Santa Teresa Hill, San Vicente- streamline regulatory compliance and critical habitat when the exclusion will Calero, and Tulare Hill Corridor result in the extinction of the species. confirms regulatory assurances for HCP proposed critical habitat units. Because participants. We will conduct an analysis of the the HCP expires in November 2001, and economic impacts of designating these Another benefit of excluding HCPs is the permitted project is expected to be areas as critical habitat prior to making that it would encourage the continued complete before any final critical habitat a final determination. When completed, development of partnerships with HCP designation, we are not excluding lands we will announce the availability of this participants, including states, local covered under this short-term HCP from economic analysis with a notice in the governments, conservation our critical habitat proposal. We Federal Register; if necessary, we will organizations, and private landowners, reviewed the project with PG & E and reopen the comment period at that time. that together can implement determined that the remaining work conservation actions we would be under the HCP will not cause Public Comments Solicited unable to accomplish alone. By destruction or adverse modification of We intend that any final action excluding areas covered by HCPs from proposed critical habitat; therefore, no resulting from this proposal be as critical habitat designation, we preserve formal conference on the remaining accurate and as effective as possible. these partnerships, and, we believe, set work will be necessary. Therefore, we solicit comments or the stage for more effective conservation In the event that future HCPs covering suggestions from the public, other actions in the future. the bay checkerspot are developed concerned governmental agencies, the In general, then we believe the within the boundaries of designated scientific community, industry, or any benefits of critical habitat designation to critical habitat, we will work with other interested party concerning this be small in areas covered by approved applicants to ensure that the HCPs proposed rule. We particularly seek HCPs. We also believe that the benefits provide for protection and management comments concerning: of excluding HCPs from designation are of habitat areas essential for the (1) The reasons why any habitat small, but significant. Because we conservation of the bay checkerspot by should or should not be determined to believe that, the small benefits of either directing development and be critical habitat as provided by section inclusion weighed against the benefits habitat modification to nonessential 4 of the Act, including whether the of exclusion, including the benefits of areas or appropriately modifying benefits of designation will outweigh relieving property owners of an activities within essential habitat areas any benefits of exclusion; additional layer of approvals and so that such activities will not adversely (2) Specific information on the regulation, together with the modify the primary constituent amount and distribution of bay encouragement of conservation elements. The HCP development checkerspot butterflies and their habitat, partnerships would generally result in process provides an opportunity for and what habitat is essential to the HCPs being excluded from critical more intensive data collection and conservation of the species and why; habitat designation under Section analysis regarding the use of particular (3) Land use practices and current or 4(b)(2) of the Act. habitat areas by the bay checkerspot. planned activities in the subject areas

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Given the high likelihood of other units of government. The bay habitat for the bay checkerspot such as a request for a hearing and the need to checkerspot butterfly was listed as a those derived from nonconsumptive publish a final determination within threatened species in 1987. In fiscal uses (e.g., hiking, camping, 120 days of this proposed rule, we years 1987 through 1999, we conducted birdwatching, enhanced watershed scheduled a public hearing (see DATES 4 formal section 7 consultations with protection, improved air quality, and ADDRESSES sections). Federal agencies to ensure that their increased soil retention, ‘‘existence Written comments submitted during actions would not jeopardize the values,’’ and reductions in the comment period receive equal continued existence of the butterfly. administrative costs). consideration with those comments Under the Act, critical habitat may Our practice is to make comments presented at a public hearing. not be adversely modified by a Federal available for public review during agency action; critical habitat does not regular business hours, including names Clarity of the Rule impose any restrictions on non-Federal and home addresses of respondents. Executive Order 12866 requires each persons unless they are conducting Individual respondents may request that agency to write regulations/notices that activities funded or otherwise we withhold their home address from are easy to understand. We invite your the rulemaking record, which we will comments on how to make this sponsored, authorized, or permitted by honor to the extent allowable by law. In proposed rule easier to understand a Federal agency (see Table 2 below). some circumstances, we would including answers to questions such as Section 7 requires Federal agencies to withhold from the rulemaking record a the following: (1) Are the requirements ensure that they do not jeopardize the respondent’s identity, as allowable by in the proposed rule clearly stated? (2) continued existence of the species. law. If you wish for us to withhold your Does the proposed rule contain Based upon our experience with the name and/or address, you must state technical language or jargon that species and its needs, we conclude that this prominently at the beginning of interferes with the clarity? (3) Does the any Federal action or authorized action your comment. However, we will not format of the proposed rule (grouping that could potentially cause an adverse consider anonymous comments. We and order of sections, use of headings, modification of the proposed critical will make all submissions from paragraphing, etc.) aid or reduce its habitat would currently be considered organizations or businesses, and from clarity? (4) Is the description of the as ‘‘jeopardy’’ under the Act in areas individuals identifying themselves as proposed rule in the SUPPLEMENTARY occupied by the bay checkerspot. representatives or officials of INFORMATION section of the preamble Accordingly, the designation of organizations or businesses, available helpful in understanding the proposed currently occupied areas as critical for public inspection in their entirety. rule? What else could we do to make the habitat does not have any incremental Peer Review proposed rule easier to understand? impacts on what actions may or may not Send any comments that concern how be conducted by Federal agencies or In accordance with our policy we could make this proposed rule easier non-Federal persons that receive published on July 1, 1994 (59 FR to understand to the Field Supervisor, Federal authorization or funding. 34270), we will seek the expert opinions Sacramento Fish and Wildlife Office Designation of unoccupied areas as of at least three appropriate and (see ADDRESSES section of this rule). independent specialists regarding this critical habitat may have impacts on proposed rule. The purpose of this Required Determinations what actions may or may not be review is to ensure listing decisions are conducted by Federal agencies or non- Regulatory Planning and Review based on scientifically sound data, Federal persons who receive Federal assumptions, and analyses. We will In accordance with Executive Order authorization or funding. We will send these peer reviewers copies of this 12866, this document is a significant evaluate any impact through our proposed rule immediately following rule and was reviewed by the Office of economic analysis (under section 4 of publication in the Federal Register. We Management and Budget (OMB). We are the Act; see Economic Analysis section will invite these peer reviewers to preparing a draft analysis of this of this rule). Non-Federal persons that comment, during the public comment proposed action, which will be available do not have a Federal ‘‘sponsorship’’ of period, on the specific assumptions and for public comment, to determine the their actions are not restricted by the conclusions regarding the proposed economic consequences of designating designation of critical habitat (however, designation of critical habitat. the specific areas as critical habitat. The they continue to be bound by the We will consider all comments and availability of the draft economic provisions of the Act concerning ‘‘take’’ information received during the 60-day analysis will be announced in the of the species).

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TABLE 2.ÐIMPACTS OF BAY CHECKERSPOT BUTTERFLY LISTING AND CRITICAL HABITAT DESIGNATION

Categories of Activities potentially affected by species listing only Additional activities potentially affected by activities critical habitat designation1

Federal Activities Potentially Af- Activities conducted by the Army Corps of Engineers, Bureau Activities by these Federal Agencies in any fected2. of Reclamation, Environmental Protection Agency, Federal unoccupied critical habitat areas. Highway Administration. Private or other non-Federal Activities that require a Federal action (permit, authorization, Funding, authorization, or permitting actions Activities Potentially Affected3. or funding) and may remove or destroy bay checkerspot by Federal Agencies in any unoccupied crit- butterfly habitat by mechanical, chemical, or other means ical habitat areas. (e.g., grading, discing, ripping, and tilling, water diversion, impoundment, groundwater pumping, irrigation, construc- tion, road building, herbicide application, recreational use, etc.) or appreciably decrease habitat value or quality through indirect effects (e.g., edge effects, invasion of ex- otic plants or animals, fragmentation of habitat). 1 This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by list- ing the species. 2 Activities initiated by a Federal agency. 3 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.

(b) This rule will not create Planning and Review above, this rule is the species remain in effect, and this inconsistencies with other agencies’ not expected to result in any restrictions rule will have no additional restrictions. actions. As discussed above, Federal in addition to those currently in Small Business Regulatory Enforcement agencies have been required to ensure existence for areas of occupied critical Fairness Act (5 U.S.C. 804(2)) that their actions do not jeopardize the habitat. We will also evaluate whether continued existence of the bay critical habitat designation of In the economic analysis, we will checkerspot since the listing in 1987. unoccupied areas will significantly determine whether designation of The prohibition against adverse affect a substantial number of small critical habitat will cause (a) any effect modification of critical habitat is not entities. As indicated on Table 1 (see on the economy of $100 million or expected to impose any additional Proposed Critical Habitat Designation more, (b) any increases in costs or prices restrictions to those that currently exist section), we designated property owned for consumers, individual industries, in areas of occupied habitat. We will by State and local governments, and Federal, State, or local government evaluate any impact of designating private property. agencies, or geographic regions; or (c) unoccupied habitat areas through our Within these areas, the types of any significant adverse effects on economic analysis. Because of the Federal actions or authorized activities competition, employment, investment, potential for impacts on other Federal that we have identified as potential productivity, innovation, or the ability agency activities, we will continue to concerns are: of U.S.-based enterprises to compete review this proposed action for any (1) Regulation of activities affecting with foreign-based enterprises. As inconsistencies with other Federal waters of the United States by the Corps discussed above, we anticipate that the agency actions. under section 404 of the Clean Water designation of critical habitat will not have any additional effects on these (c) This proposed rule, if made final, Act; (2) Regulation of water flows, activities in areas of critical habitat will not materially affect entitlements, execution of water contracts, water occupied by the species. Designation of grants, user fees, loan programs, or the delivery, transfer of Federal project unoccupied areas as critical habitat may rights and obligations of their recipients. water, damming, diversion, and have impacts on what actions may or Federal agencies are currently required channelization by the Bureau of may not be conducted by Federal to ensure that their activities do not Reclamation or the Corps; agencies or non-Federal persons who jeopardize the continued existence of (3) Pesticide and air quality regulation receive Federal authorization or the species, and, as discussed above, we by the Environmental Protection funding. We will evaluate any impact do not anticipate that the adverse Agency; and through our economic analysis. modification prohibition (resulting from (4) Funding and regulation of road critical habitat designation) will have construction by the FHWA. Unfunded Mandates Reform Act (2 any incremental effects in areas of Many of these activities sponsored by U.S.C. 1501 et seq.) occupied habitat. Federal agencies within the proposed In accordance with the Unfunded (d) This rule will not raise novel legal critical habitat areas are carried out by Mandates Reform Act (2 U.S.C. 1501 or policy issues. The proposed rule small entities (as defined by the August 25, 2000 et seq.): follows the requirements for Regulatory Flexibility Act) through (a) We believe this rule will not determining critical habitat contained in contract, grant, permit, or other Federal ‘‘significantly or uniquely’’ affect small the Act. authorization. As discussed above, these governments. A Small Government Agency Plan is not required. Small Regulatory Flexibility Act (5 U.S.C. 601 actions are currently required to comply governments will be affected only to the et seq.) with the listing protections of the Act, and the designation of critical habitat is extent that any programs having Federal In the economic analysis (required not anticipated to have any additional funds, permits, or other authorized under section 4 of the Act), we will effects on these activities. activities must ensure that their actions determine whether designation of For actions on non-Federal property will not adversely affect the critical critical habitat will have a significant that do not have a Federal connection habitat. However, as discussed above, effect on a substantial number of small (such as funding or authorization), the these actions are currently subject to entities. As discussed under Regulatory current restrictions concerning take of equivalent restrictions through the

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(ed.), Systematics of (b) This rule will not produce a occur, it may assist these local Western North American Butterflies. Federal mandate of $100 million or governments in long-range planning Mariposa Press, Gainesville, Florida. greater in any year; that is, it is not a (rather than waiting for case-by-case Harrison, S. P. 1989. Long-distance dispersal and colonization in the bay checkerspot ‘‘significant regulatory action’’ under section 7 consultations to occur). the Unfunded Mandates Reform Act. butterfly, Euphydryas editha bayensis. Civil Justice Reform Ecology 70:1236–1243. The designation of critical habitat Launer, A. E., D. D. Murphy, C. L. Boggs, J. imposes no obligations on State or local In accordance with Executive Order F. Baughman, S. B. Weiss, and P. R. governments. 12988, the Office of the Solicitor has Ehrlich. 1993. Puddling behavior by Bay Takings determined that this rule does not checkerspot butterflies (Euphydryas unduly burden the judicial system and editha bayensis). Journal of Research on In accordance with Executive Order the Lepidoptera 32:45–52. 12630, this rule does not have meets the requirements of sections 3(a) Mattoni, R., G. F. Pratt, T. R. Longcore, J. F. significant takings implications. A and 3(b)(2) of the Order. We propose to Emmel, and J. N. George. Published 1997 takings implication assessment is not designate critical habitat in accordance for the year 1995. The endangered quino required. As discussed above, the with the provisions of the Act and plan checkerspot butterfly, Euphydryas editha designation of critical habitat affects a public hearing on the proposed quino (Lepidoptera: Nymphalidae). only Federal agency actions. The rule designation during the comment period. Journal of Research on the Lepidoptera The rule uses standard property 34:99–118. will not increase or decrease the current U.S. Soil Conservation Service. 1974. Soil restrictions on private property descriptions and identifies the primary constituent elements within the Survey of Eastern Santa Clara Area. U.S. concerning take of the bay checkerspot. Department of Agriculture, Washington, Due to current public knowledge of the designated areas to assist the public in DC. species’ protection under the Act, the understanding the habitat needs of the U.S. Fish and Wildlife Service. 1998. prohibition against take of the species bay checkerspot butterfly. Recovery plan for serpentine soil species both within and outside of the Paperwork Reduction Act of 1995 (44 of the San Francisco Bay area. U.S. Fish and Wildlife Service, Portland, Oregon. designated areas, and the fact that U.S.C. 3501 et seq.) critical habitat provides no incremental 330+ pp. restrictions in areas of occupied critical This rule does not contain any Weiss, S. B. 1999. Cars, cows, and checkerspot butterflies: nitrogen habitat, we do not anticipate that information collection requirements that deposition and management of nutrient- property values will be affected by the requires Office of Management and poor grasslands for a threatened species. critical habitat designation. Budget approval under the Paperwork Conservation Biology 13:1476–1486. Additionally, critical habitat Reduction Act. Weiss, S. B., and A. E. Launer. 2000. Annual designation does not preclude report to the trustees of the Kirby Canyon National Environmental Policy Act development of habitat conservation Conservation Agreement—Summary of plans and issuance of incidental take We determined that we do not need activities conducted in 1999 and early permits. Landowners in areas that are spring 2000. Unpublished report, on file to prepare an Environmental at Sacramento Fish and Wildlife Office. included in the designated critical Assessment and/or an Environmental habitat will continue to have Impact Statement as defined by the Authors opportunity to utilize their property in National Environmental Policy Act of The primary authors of this notice are ways consistent with the survival of the 1969 in connection with regulations the staff of the Sacramento Fish and bay checkerspot butterfly. adopted pursuant to section 4(a) of the Wildlife Office (see ADDRESSES section). Federalism Act. We published a notice outlining our reasons for this determination in the List of Subjects in 50 CFR Part 17 In accordance with Executive Order Federal Register on October 25, 1983 Endangered and threatened species, 13132, the rule does not have significant (48 FR 49244). Exports, Imports, Reporting and Federalism effects. A Federalism recordkeeping requirements, Government-to-Government assessment is not required. In keeping Transportation. with Department of the Interior and Relationship With Tribes Department of Commerce policy, we Proposed Regulation Promulgation In accordance with the President’s requested information from and For the reasons given in the preamble coordinated development of this critical memorandum of April 29, 1994, ‘‘Government-to-Government Relations above, we propose to amend 50 CFR habitat proposal with appropriate State part 17 as set forth below: resource agencies in California. The with Native American Tribal designation of critical habitat in areas Governments’’ (59 FR 22951) and 512 PART 17Ð[AMENDED] currently occupied by the bay DM 2, we understand that Federally checkerspot imposes no additional recognized Tribes must be related to on 1. The authority citation for part 17 restrictions to those currently in place a Government-to-Government basis. continues to read as follows: and, therefore, has little incremental We are not aware of any Tribal lands Authority: 16 U.S.C. 1361–1407; 16 U.S.C. impact on State and local governments essential for the conservation of the bay 1531–1544 16 U.S.C. 4201–4245; Pub. L. 99– and their activities. The designation checkerspot. Therefore, we are not 625, 100 Stat. 3500; unless otherwise noted. may have some benefit to these proposing to designate critical habitat 2. In § 17.11(h) revise the entry for governments in that the areas essential for the bay checkerspot butterfly on ‘‘Butterfly, bay checkerspot,’’ under to the conservation of the species are Tribal lands. ‘‘INSECTS,’’ to read as follows:

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§ 17.11 Endangered and threatened (h) * * * wildlife. * * * * *

Species Vertebrate popu- Historic range lation where endan- Status When listed Critical Special Common name Scientific name gered or threatened habitat rules

******* INSECTS

******* Butterfly, bay Euphydryas editha U.S.A. (CA) ...... NA ...... T 288 17.95(i) NA checkerspot. bayensis.

*******

3. Amend § 17.95(i) by adding critical 2. Within these areas, the primary times of spring drought; and space for habitat for the bay checkerspot butterfly constituent elements are those habitat dispersal between habitable areas. In (Euphydryas editha bayensis) in the components that are essential for the addition, topography with varied slopes same alphabetical order as this species primary biological needs of foraging, and aspects is a primary constituent occurs in § 17.11(h), to read as follows: sheltering, breeding, maturation and element to be conserved when it is dispersal. The primary constituent present in combination with one or § 17.95 Critical habitatÐfish and wildlife. elements are areas of open grassland; more of the primary constituent * * * * * stands of Plantago erecta, Castilleja elements above. (i) Insects exserta, or Castilleja densiflora; spring 3. Within these areas, existing features Bay Checkerspot Butterfly (Euphydryas flowers providing nectar; pollinators of and structures, such as buildings, roads, editha bayensis) the bay checkerspot’s food and nectar railroads, urban development, and other plants; soils derived from serpentinic features not containing primary 1. Critical habitat units are depicted rock; stable holes or cracks in the soil constituent elements, are not considered for San Mateo and Santa Clara counties, and surface rocks or rock outcrops; critical habitat. California, on the maps below. wetlands providing moisture during

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Unit 1 (Edgewood Park/Triangle Unit): San Mateo County, California. Bounded as follows: beginning at the intersection ˜ of Edgewood Road and Canada Road; southwesterly, south, and southeasterly along the light-duty extension of Edgewood ˜ Road southwest of Canada Road to its intersection with an unnamed intermittent drainage tributary to Upper Crystal Springs Reservoir as shown on the USGS Woodside 7.5 minute quadrangle (1961, photorevised 1968 and 1973); then southwesterly along this drainage to its intersection with I–280; then southeasterly along the eastern edge of pavement of I–280 to a point due southwest of the southernmost corner of Edgewood Natural Preserve (this just south of a ˜ substation shown on the Woodside quadrangle, where the State Fish and Game Refuge boundary meets Canada Road and an elevation of 161 m (528 ft) is marked); then due northeast to the southernmost corner of Edgewood Natural Preserve; then northeast along the southeast boundary of Edgewood Natural Preserve to the 159 m (520 ft) elevation contour as shown on the Woodside quadrangle; then northwesterly along this contour to its intersection with Edgewood Road; then southwesterly along the south edge of pavement of Edgewood Road to the starting point.

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Unit 2 (Jasper Ridge Unit): San Mateo County, California. Bounded as follows: to the east, north, and west by the 110 m (360 ft) elevation contour around Jasper Ridge (USGS Palo Alto 7.5 minute quadrangle, 1991); and to the south by the current boundary of the Jasper Ridge Biological Reserve, which is largely coincident with the northern boundary of the town of Portola Valley.

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Unit 3 (San Bruno Mountain Unit): San Mateo County, California. All area on San Bruno Mountain above the 152 m (500 ft) elevation contour and east of the western Pacific Gas and Electric transmission corridor (this transmission corridor runs south to southwesterly from the west end of Guadalupe Valley to the South San Francisco/Colma City border) as shown on the USGS San Francisco South 7.5 minute quadrangle, 1956).

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Unit 4 (Bear Ranch Unit): Santa Clara photorevised 1968). This hilltop is near photorevised 1968 and 1973) and back County, California. Those portions of latitude 37 degrees 4 minutes 42 to its intersection with longitude 121 section 32, T.9 S., R.4 E. and section 5, seconds north, longitude 121 degrees 38 degrees 37 minutes 30 seconds west (the T.10 S., R.4 E., westerly of Coyote minutes 19 seconds west (Hayes Lane, junction between the two quadrangles). Reservoir Road—a light-duty road not shown on the Mt. Madonna The unit is bounded on the south- shown but not named on the USGS quadrangle, also runs in the vicinity of southwest by a straight line running Gilroy 7.5 minute quadrangle (1955, this hilltop). The north boundary runs from this latter point for a distance of photorevised 1968 and 1973). as far east as its intersection with the 97 about 2,228 m (7,310 ft) slightly south Unit 5 (San Martin Unit): Santa Clara m (320 ft) elevation contour west of of west-northwest (bearing 291.5 County, California. Bounded on the Coolidge Avenue as shown on the Mt. degrees) to a hilltop labeled 152 m (495 north by a line running due east-west Madonna quadrangle. From this point ft) in elevation on the Mt. Madonna through a point 305 m (1000 ft) due the boundary runs southeasterly, quadrangle. The west boundary of the north of a hilltop marked 239 m (785 ft) southerly, and westerly following this unit runs from this hilltop due north- in elevation on the USGS Mt. Madonna contour, continuing onto the USGS northeast (bearing 22.5 degrees) to the 7.5 minute quadrangle (1955, Gilroy 7.5 minute quadrangle (1955, north boundary.

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Unit 6 (Communications Hill Unit): the two water tanks on the top of the hill ft) elevation contour; then northwesterly Santa Clara County, California. Starting west of Highway 87; then due east for and northeasterly along this contour to at a point on the 73 m (240 ft) elevation a distance of about 238 m (780 ft) to a the boundary of Oak Hill Memorial Park contour due south of the 133 m (435 ft) point due south of the easternmost point cemetery; then following the cemetery summit of Communications Hill, the of the eastern of the two water tanks; boundary southeasterly, skirting a hill Communications Hill unit is bounded to then due north for about 439 m (1,440 summit marked 98 m (323 ft) on the San the south by the 73 m (240 ft) elevation ft) to the intersection with the 85 m (280 Jose East quadrangle, to the first 67 m contour as shown on the USGS San Jose ft) elevation contour; then slightly north (220 ft) elevation contour southeast of East 7.5 minute quadrangle map (1961, of east on a straight line to the southern this summit; then due southwest to the photorevised 1980; the hill is not named corner of the property of the county 49 m (160 ft) elevation contour on this map but the county communications facility; then on a line immediately west of the railroad tracks; communications center is shown), as far to the northern corner of this property; then southeasterly along this contour as west as its intersection with Highway 87 then due southwest to Carol Drive (not shown on the 1961 San Jose East (this highway is not shown on the San named on the San Jose East quadrangle); quadrangle to its intersection with Jose East quadrangle); then south along then slightly north of northwest (bearing Hillsdale Avenue; then southwesterly Highway 87 (west edge of pavement) to 322 degrees) to the 55 m (180 ft) along Hillsdale Avenue (north edge of the 55 m (180 ft) elevation contour (all elevation contour; then along this pavement) to its intersection with Vista contours in this description are as contour easterly and northeasterly until Park Drive (not shown on the San Jose shown on the San Jose East quadrangle); it reaches the second dirt road as shown East quadrangle); then due north to the then south, west, and north along this on the San Jose East quadrangle; then 73 m (240 ft) elevation contour; then contour to a point due west of the due northeast across the Southern westerly along this contour to the southernmost point of the southern of Pacific railroad tracks to the 55 m (180 starting point.

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Unit 7 (Kalana Hills Unit): Santa Clara crosses Coyote Creek. From there the Cochrane Road and Monterey Highway; County, California. Bounded as follows: boundary runs southeasterly up along running north-northwesterly along this beginning at the intersection of San Coyote Creek to the Anderson Lake contour to where it again meets Hale Bruno Avenue and the 94 m (310 ft) dam; then east-northeasterly up the face Avenue near the intersection of Hale elevation contour as shown on USGS of the dam to Anderson Lake (Anderson Avenue with Tilton Avenue (these roads Morgan Hill 7.5 minute topographic Reservoir). The unit is bounded on the are not named on the Morgan Hill quadrangle (1955, photorevised 1968); southeast by Anderson Lake. From the quadrangle); then on a line due by a line running due northwest to the northernmost tip of Anderson Lake (at southwest to the 122 m (400 ft) 79 m (260 ft) elevation contour; then latitude 37 degrees 12 minutes 15 elevation contour; then west- due west for 419 m (1,375 ft) seconds north) the boundary runs southwesterly along this contour to its (approximately to the second slightly north of west for a distance of intersection with Willow Springs Road; intersection with a canal); then due about 1,097 m (3,600 ft) to a hilltop south for about 1 km (0.6 mi) to an marked 379 m (1,243 ft) in elevation on then along Willow Springs Road unnamed intermittent stream shown on the Morgan Hill quadrangle; then southwesterly to the land survey line the Morgan Hill quadrangle; then by a slightly west of northwest for a distance running approximately east-southeast straight line slightly east of southeast to of about 1,707 m (5,600 ft) to a hilltop from Laurel Hill (elevation marked 349 the westernmost point on the marked 411 m (1,347 ft) in elevation on m (1,145 ft) on the Morgan Hill intermittent stream draining San Bruno the Morgan Hill quadrangle; then quadrangle); then east-southeasterly Canyon (this point is nearly on a line slightly north of northwest for a along this land survey line to its end at between hilltop elevations marked 227 distance of about 2,886 m (9,470 ft) to the R.2 E./R.3 E. dividing line (Mount m (744 ft) and 230 m (756 ft), to the east a hilltop marked 444 m (1,457 ft) in Diablo meridian/base line); then and the west, respectively, on the elevation on the Morgan Hill continuing from this point along the Morgan Hill quadrangle); then by a line quadrangle; then on a line running from same bearing as the land survey line to running north of northeast back to the this hilltop south of west-southwest Llagas Road (called Llagas Avenue on starting point on San Bruno Avenue. (bearing 237 degrees) to the intersection the Morgan Hill quadrangle); then Unit 8 (Kirby Unit): Santa Clara of the Metcalf Canyon drainage with the northeasterly along Llagas Road to its County, California. Beginning at the 354 m (1,160 ft) elevation contour as intersection with Castle Lake Drive (not intersection of the intermittent creek shown on the Morgan Hill quadrangle. shown on the Morgan Hill quadrangle); draining Metcalf Canyon (Metcalfe The north boundary of the unit then then east-northeasterly along a straight Canyon on the USGS Morgan Hill 7.5 continues westerly down the Metcalf line connecting this intersection and the minute quadrangle, 1955, photorevised Canyon drainage to the starting point. intersection of Christeph Drive and 1980) with Highway 101 (current Unit 9 (Morgan Hill Unit): Santa Clara alignment, not shown on Morgan Hill County, California. Bounded as follows: Llagas Vista Drive (not shown on the quadrangle), the unit is bounded on the beginning at the intersection of the 107 Morgan Hill quadrangle); then east, southeast, and south by Highway m (350 ft) elevation contour (USGS northeasterly parallel to Llagas Road to 101 (east edge of pavement, current Morgan Hill 7.5 minute quadrangle, Hale Avenue; then north-northwesterly alignment, not shown on the Morgan 1955, photorevised 1968) with Hale along Hale Avenue to the starting point. Hill quadrangle), south to where it Road east of the intersection of BILLING CODE 4310±55±P

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Unit 10 (Metcalf Unit): Santa Clara northwest in a straight line to the Silver Creek (mostly on Lick County, California. This unit shares its intersection of Silver Creek Valley Road Observatory quadrangle). The south southern border with the northern (sic) (not shown on the San Jose East boundary also abuts the Metcalf unit, border of the Kirby unit, running from quadrangle) with the 195 m (640 ft) and runs from Silver Creek (Morgan Hill Highway 101 (current alignment, not elevation contour as shown on the San quadrangle) due east to the starting shown on USGS Morgan Hill 7.5 minute Jose East quadrangle; then point. quadrangle, 1955, photorevised 1980) southwesterly along Silver Creek Valley Unit 12 (Silver Creek Unit): Santa up the Metcalf Canyon drainage and to Road to Coyote Creek; then Clara County, California. Bounded as the 444 m (1,457 ft) peak of the ridge as southeasterly along Coyote Creek to its follows: on the west by Highway 101 described for the Kirby unit. The first undercrossing of Highway 101 (east edge of pavement, current Metcalf unit boundary then runs north- (current alignment, not shown but alignment) from Yerba Buena Road in northeasterly from this hilltop for a would fall on USGS Santa Teresa Hills San Jose south to the crossing of Coyote distance of about 1,740 m (5,710 ft) to 7.5 minute quadrangle, 1953, Creek (Yerba Buena Road and the full a hilltop marked 440 m (1,445 ft) in photorevised 1980); then southerly current alignment of Highway 101 are elevation on the Morgan Hill quadrangle along Highway 101 (current alignment, not shown on the USGS San Jose East (this segment crosses Metcalf Road east edge of pavement, not shown on 7.5 minute quadrangle, 1961, (appears as Metcalfe Road on the USGS 7.5 minute quadrangles) to the photorevised 1980); then by Coyote Morgan Hill quadrangle) about 0.5 km Metcalf Canyon drainage. Creek southeasterly from this crossing (0.3 mi) easterly of the high point of this Unit 11 (San Felipe Unit): Santa Clara south to Silver Creek Valley Road (not road over Coyote Ridge). The Metcalf County, California. The east boundary of shown on the San Jose East quadrangle); unit boundary then continues, abutting the San Felipe critical habitat unit then by Silver Creek Valley Road from the San Felipe unit, from this hilltop begins at the 440 m (1,445 ft) hilltop Coyote Creek northeasterly to its due west to Silver Creek; then identified in the northeast boundary of intersection with the 195 m (640 ft) northwesterly down Silver Creek to the the Metcalf unit (this peak is labeled on elevation contour shown on the San Jose first intersection with Silver Creek Road the USGS Morgan Hill 7.5 minute East quadrangle (this segment abuts the (sic) (T.8 S., R.2 E; USGS San Jose East quadrangle (1955, photorevised 1980), northwestern boundary of the Metcalf 7.5 minute quadrangle, 1961, near latitude 37 degrees 15 minutes unit); then due northwest to the photorevised 1980) (see San Felipe unit north, longitude 121 degrees 43 minutes boundary of the Silver Creek Valley description). From this crossing of west); and proceeds from that hilltop Country Club Butterfly Habitat Reserve Silver Creek Road over Silver Creek, the due north to San Felipe Road at an at an elevation of about 226 m (740 ft); Metcalf unit boundary follows Silver elevation of about 296 m (970 ft) (USGS then generally northeast, north, and Creek Road west-northwesterly to the Lick Observatory 7.5 minute northwest along the boundary of the 152 m (500 ft) elevation contour as quadrangle, 1955, photorevised 1968); reserve to a fence line shown on the San shown on the San Jose East quadrangle then west-northwesterly along San Jose East quadrangle at an elevation of (just north of a benchmark labeled 153 Felipe Road (southwest edge of about 168 m (550 ft); then northeasterly m (502 ft) on the quadrangle); then pavement) for a distance of about 2.7 km following that fence line as shown to continues due southwest for about 445 (1.7 mi) to Silver Creek Road (sic). The Silver Creek at an elevation of about 93 m (1,460 ft) to a fence line marked on north boundary is formed by Silver m (305 ft); then northwesterly and the San Jose East quadrangle; then Creek Road (south edge of pavement) westerly following Silver Creek to Yerba slightly north of west following that from San Felipe Road to Silver Creek Buena Road where Silver Creek passes fence line as shown for a distance of (the creek crossing is on the USGS San under it approximately 216 m (710 ft) about 1,027 m (3,370 ft) to its second Jose East 7.5 minute quadrangle, 1961, northeast of Highway 101; then along (westerly) intersection with the 226 m photorevised 1980). The west boundary, Yerba Buena Road (south edge of (740 ft) elevation contour as shown on which abuts the Metcalf unit, runs from pavement) to Highway 101. the San Jose East quadrangle; then Silver Creek Road southeasterly along BILLING CODE 4310±55±P

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00025 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 61242 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00026 Fmt 4701 Sfmt 4725 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules 61243

Unit 13 (San Vicente-Calero Unit): intersection with Bailey Avenue. The a distance of about 543 m (1,780 ft) to Santa Clara County, California. Bounded south, southwest, and western border of the end of a dirt road as marked on the on the north and northwest by Calero the unit then continues from this point, 1980 photorevised Santa Teresa Hills Reservoir, by the canal and siphon along a line running west-southwesterly quadrangle; then slightly south of west- running westerly of the main reservoir (bearing 248 degrees) for a distance of northwest (bearing 290 degrees) for a dam (dam on the Arroyo Calero), and by about 325 m (1,065 ft) to a bench mark distance of about 2,551 (8,370 ft) to a the city boundary of the City of San north of Bailey Avenue labeled 108 m hilltop marked 173 m (568 ft) in Jose, which follows the canal at an (354 ft) in elevation on the Santa Teresa elevation on the Santa Teresa Hills elevation of roughly 152 m (500 ft), as Hills quadrangle; then north of east quadrangle; then due northeast to the 73 far as its intersection with Chilanian (bearing 284 degrees) for a distance of m (240 ft) elevation contour as shown Gulch. The boundary then runs about 3,030 m (9,940 ft) to the on the Santa Teresa Hills quadrangle. generally southeast following Chilanian intersection of a land grant boundary The northern boundary of the unit is Gulch to its intersection with the R.1 E./ with a transmission line shown on the formed by the 73 m (240 ft) elevation R.2 E. (Mount Diablo meridian/base 1980 photorevised Santa Teresa Hills contour as shown on the Santa Teresa line) dividing line, then due south to the quadrangle at an elevation of about 152 Hills quadrangle. Calero County Park border. The park m (500 ft); then north-northwesterly Unit 15 (Tulare Hill Corridor Unit): boundary forms the rest of the western, along this land grant line to the Santa Clara County, California. Bounded southern, and southeastern border of the intersection with Fortini Road; then on the northeast by the most unit. The eastern border of the unit is generally west-southwest and west northeasterly edge of pavement of formed by a line running due north from along Fortini Road to the intersection Highway 101 (i.e., the highway itself is the southern Calero County Park with San Vicente Avenue (these road included, and the unit abuts the Kirby boundary through a hilltop elevation names do not appear on the Santa and Metcalf units). Bounded on the labeled 307 m (1,009 ft) on the USGS Teresa quadrangle); then westerly along northwest, west, and southwest by a Santa Teresa Hills 7.5 minute San Vicente Avenue to where it turns line extending due southwest from the quadrangle (1953, photorevised 1980) to south south-west; then continuing northeast boundary to the corner of Calero Reservoir. This hilltop is near westerly and northwesterly from this Cheltenham Way and Coburn Court, latitude 37 degrees 10 minutes 15 point along a land grant boundary then southwesterly along Cheltenham seconds north, longitude 121 degrees 46 shown on the Santa Teresa Hills Way from Coburn Court to the minutes 15 seconds west. quadrangle to its intersection with both intersection with Santa Teresa Unit 14 (Santa Teresa Hills Unit): Henwood Drive (road name does not Boulevard, then southeasterly along Santa Clara County, California. The east appear on the Santa Teresa quadrangle) Santa Teresa Boulevard to the 73 m (240 and southeast boundary runs as follows, and an unnamed intermittent drainage ft) elevation contour as shown on the beginning at the westernmost corner of (tributary to Arroyo Calero); then USGS Santa Teresa Hills 7.5 minute the Tulare Hill Corridor unit: due northeasterly and northerly up this quadrangle (1953, photorevised 1980), southeast and then northeast along the drainage as marked on the Santa Teresa then southwesterly along this contour to Tulare Hill Corridor unit boundary, to Hills quadrangle to the 183 m (600 ft) the border of Santa Teresa County Park, the 85 m (280 ft) elevation contour elevation contour; then due north- then along a line due southeast to the (USGS Santa Teresa Hills 7.5 minute northeast for a distance of about 424 m southeast border of the unit. Bounded quadrangle, 1953, photorevised 1980); (1,390 ft) to the first intersection with on the southeast by a line running due then southeasterly, south, and the 280 m (920 ft) elevation contour; northeast-southwest through the southwesterly along this elevation then west-northwest for a distance of southeastern-most point of the 85 m contour (continues onto USGS Morgan about 265 m (870 ft) to a hilltop over (280 ft) contour of Tulare Hill, as shown Hill 7.5 minute quadrangle, 1955, 280 m (920 ft) in elevation, then slightly on the Morgan Hill quadrangle. photorevised 1980, and back) to its north of west (bearing 276 degrees) for BILLING CODE 4310±55±P

VerDate 112000 18:45 Oct 13, 2000 Jkt 194001 PO 00000 Frm 00027 Fmt 4701 Sfmt 4702 E:\FR\FM\16OCP2.SGM pfrm02 PsN: 16OCP2 61244 Federal Register / Vol. 65, No. 200 / Monday, October 16, 2000 / Proposed Rules

* * * * * Dated: October 10, 2000. Kenneth L. Smith, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 00–26448 Filed 10–12–00; 8:45 am] BILLING CODE 4310±55±C

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