Tuesday, December 10, 2002

Part VI

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and ; Designation of Critical Habitat for conjugens (Otay tarplant); Final Rule

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DEPARTMENT OF THE INTERIOR accepted by the scientific community, Information Systems (GIS) analysis, we are changing the name of most current and historical Deinandra Fish and Wildlife Service conjugens to Deinandra conjugens in 50 conjugens occurrences are found on clay CFR 17.12 (h), and will use Deinandra soils or lenses in one of the following 50 CFR Part 17 conjugens in this final rule. soil series: Diablo; Olivenhain; Linne; RIN 1018–AH00 Deinandra conjugens was first Salinas; Huerhuero; Auld; Bosanko; described by David D. Keck (1958) as Friant; and San Miguel-Exchequer rocky Endangered and Threatened Wildlife Hemizonia conjugens based on a silt loams (Bauder et al. 2002). and Plants; Designation of Critical specimen collected by L.R. Abrams in The occurrence of Deinandra Habitat for Deinandra conjugens (Otay 1903 from river bottom land in the Otay conjugens is also strongly associated tarplant) Valley area of County, with particular vegetation types. The California. Deinandra conjugens is a species is found in vegetation AGENCY: Fish and Wildlife Service, glandular, aromatic annual in the communities classified as, but not Interior. . It has a branching stem that limited to, , open coastal sage ACTION: Final rule. generally ranges from 5 to 25 scrub, maritime succulent scrub, and centimeters (2 to 10 inches) in height the margins of some disturbed sites and SUMMARY: We, the U.S. Fish and with deep green or gray-green leaves cultivated fields (CNDDB 2002; Keck Wildlife Service (Service), designate covered with soft, shaggy hairs. The 1959; Keil 1993; CNPS 2001; David critical habitat for Deinandra conjugens yellow flower heads are composed of 8 Hogan, San Diego Biodiversity Project, [= Hemizonia conjugens] (Otay tarplant) to 10 ray flowers and 13 to 21 disk in litt. 1990; Bruce Baldwin, Jepson pursuant to the Endangered Species Act flowers with hairless or sparingly Herbarium, pers. comm., 2001; Mark of 1973, as amended (Act). Deinandra downy corollas (fused petals). The Dodero, RECON, pers. comm., 2001; conjugens was federally listed as phyllaries (small associated with Scott McMillan, McMillan Biological threatened (under the name Hemizonia the flower heads) are ridged and have Consulting, pers. comm., 2001). Plant conjugens) throughout its range in short-stalked glands and large, stalkless, species common to these vegetation southwestern California and flat glands near the margins. Deinandra communities include Nassella spp. northwestern Estado de Baja California, conjugens occurs within the range of (needlegrass), Bloomeria crocea Mexico in 1998. The designation Deinandra fasciculata [=H. fasciculata] (common goldenstar), Dichelostemma includes approximately 2,560 hectares (fasciculated tarplant) and Deinandra pulchella (blue dicks), Chlorogalum (ha) (6,330 acres (ac)) in San Diego paniculata [=H. paniculata] (San Diego spp. (soap plant), spp. (brome County, California, as critical habitat for tarplant). Deinandra conjugens can be grass), spp. (oats), Deinandra Deinandra conjugens. distinguished from other members of fasciculata (fasciculated tarweed), DATES: The effective date of this rule is the genus by its ridged phyllaries, black Lasthenia californica (common January 9, 2003. anthers (part of flower that produces goldfields), Artemisia californica ADDRESSES: You may inspect the pollen), and by the number of disk and (California sagebrush), Eriogonum supporting record for this rule at the ray flowers. The disk and ray flowers fasciculatum (flat-top buckwheat), Lotus Carlsbad Fish and Wildlife Office, U.S. each produce different types of seeds scoparius (deer weed), Salvia spp. Fish and Wildlife Service, 6010 Hidden (heterocarpy), which has been (sage), Mimulus aurantiacus (bush Valley Road, Carlsbad, CA 92009, by correlated to differential monkeyflower), Malacothamnus appointment during normal business responses (Tanowitz et al. 1987). fasciculatum (bushmallow), Malosma hours. Most known Deinandra conjugens laurina (laurel sumac), Rhus ovata occurrences are closely associated with (sugar bush), R. integrifolia (lemonade FOR FURTHER INFORMATION CONTACT: Jim particular soils, vegetation types, and berry), Lycium spp. (boxthorn), Bartel, Field Supervisor, Carlsbad Fish elevation range. The majority of Euphorbia misera (cliff spurge), and Wildlife Office, at the above Deinandra conjugens occurrences are Simmondsia chinensis (jojoba), Opuntia address; telephone 760/431–9440, associated with clay soils and with spp. (prickly pear and cholla cactuses), facsimile 760/431–5902. Information grasslands, coastal sage scrub, or Ferocactus viridescens (coastal barrel regarding this designation is available in maritime succulent scrub. Information cactus), Ambrosia chenopodiifolia (San alternate formats upon request. from herbarium records at the San Diego Diego bur sage), and Dudleya spp. (live- SUPPLEMENTARY INFORMATION: Natural History Museum (SDNHM) and forevers). data from the California Natural Information acquired since the listing Background Diversity Database (CNDDB 2002) indicates that the historical range for Deinandra conjugens (Otay tarplant) records indicates that Deinandra Deinandra conjugens in San Diego was known as Hemizonia conjugens conjugens has a narrow geographic and County, California, is extended from the when it was listed on October 13, 1998 elevation range. Mexican border north to Spring Valley (63 FR 54938). Since then, studies The distribution of Deinandra and Paradise Valley, a distance of about analyzing plant and floral morphology conjugens is strongly correlated with 24 kilometers (km) (15 miles (mi)), and and genetic information prompted clayey soils, subsoils, or lenses (isolated from Interstate 805 east to Otay Lakes Baldwin (1999) to revise the Madiinae area of clay soil) (Bauder et al. 2002). Reservoir, a distance of about 13 km (8 (tarplants), a tribe in the Asteraceae Such soils typically support grasslands, mi) (herbarium records at the SDNHM (sunflower family), and reclassify but may support some woody and CNDDB 2002). Further, based on several taxa into new or different vegetation. Much of the area with clay museum specimens and database genera. As a result, Deinandra soils and subsoils within the historical records, the elevational range for conjugens is now the accepted scientific range of Deinandra conjugens likely was Deinandra conjugens appears to be name for Hemizonia conjugens. This once vegetated with native , between 25 and 300 meters (m) (80 and taxonomic change does not alter the open coastal sage scrub and maritime 1,000 feet (ft)). limits or definition of Deinandra succulent scrub, which provided Typically, Deinandra conjugens and conjugens. Because this taxonomic suitable habitat for Deinandra other tarplants cannot produce viable change was published and is generally conjugens. Based on Geographic seeds without cross pollinating with

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other individuals (i.e., are essentially population varies annually due to a However, the number of standing plants self-incompatible) (Keck 1959; Tanowitz number of factors, including the amount from year to year can be highly variable. 1982; B. Baldwin, in litt. 2001). Gene and timing of rainfall, temperature, soil As testament to this variability, the flow among plant populations through conditions, and the extent and nature of species was thought to be extinct within is important for the long- the seed bank. Large annual fluctuations its range until its rediscovery in Estado term survival of self-incompatible in the number of standing plants in a de Baja California, Mexico in 1977 species (Ellstrand 1992). Gene flow in given population have been (Tanowitz 1978). Conversely, the largest Deinandra conjugens is essentially documented. Population size has ranged population (Rancho San Miguel) achieved through pollen movement from 1 to over 5,400 standing plants at supported about 1.9 million plants among occurrences. Because small a site on northwest Otay Mesa (CNDDB during 1998 when southern California occurrences of Deinandra conjugens 2002; City of San Diego, in litt. 1999), experienced El Nino weather may facilitate greater gene flow, from approximately 100 to 50,000 at a conditions, which resulted in a conservation of these may be critical to site in Rice Canyon (CNDDB 2002), and particularly wet and prolonged growing maintaining genetic diversity in from approximately 280,000 to 1.9 season (Merkel & Associates, in litt. Deinandra conjugens. Likely pollinators million at San Miguel Ranch South 1999). of Deinandra conjugens include, but are (CNDDB 2002; Merkel & Associates, in By 1998, the five largest populations not limited to, flies (Bombylliidae); litt. 1999). In any given year, the of Deinandra conjugens (Rancho San hover flies (Syrphidae); digger observable plants in a population are Miguel, Rice Canyon, Dennery Canyon, (Apidae); carpenter and cuckoo bees only the portion of the individuals from Poggi Canyon, and Proctor Valley) were (Anthophoridae); leaf mason and leaf the seed bank that germinated that year. known to support about 98 percent of cutting bees (Megachilidae); and These annual fluctuations make it look all reported standing plants (CNDDB metallic bees (Halictidae) (Krombein et as though a population of annual plants 2002; San Diego Gas and Electric 1995; al. 1979; Bauder et al. 2002; M. Dodero, ‘‘moves’’ from year to year, when in Roberts 1997; Merkel & Associates, in pers. comm., 2001). The following bee actuality, a different portion of a litt. 1999; Morey, in litt. 1994; City of species have been documented visiting population germinates and flowers each Chula Vista 1992; Brenda Stone, Deinandra species: Nomia melanderi; year. The spatial distribution of a California Department of Colletes angelicus; Nomadopsis standing population of annual plants is Transportation, in litt. 1994) with each helianthi; Ventralis claypolei ausralior; generally the result of the spatial reportedly containing more than 10,000 Anthidiellum notatum robertsoni; distribution of the micro-environmental standing plants. In 2000, surveys for Heriades occidentalis; Anthocopa conditions conducive to seed Deinandra conjugens conducted in hemizoniae; Ashmeadiella californica germination and growth of the plants. Johnson Canyon (Helix Environmental Determining the size or magnitude of californica; Svastra sabinensis nubila; Planning, Inc. 2001b) and Rolling Hills a given Deinandra conjugens population Melissodes tessellata; M. moorei; M. Ranch (Helix Environmental Planning, is difficult due to the major fluctuations personatella; M. robustior; M. Inc. 2001a), identified new populations that have been documented in known semilupina; M. lupina; M. stearnsi; estimated to include approximately populations (CNDDB 2002; Merkel & Anthophora urbana urbana; and A. 480,000 and 28,000 standing plants, curta curta (Krombein et al. 1979). Associates, in litt. 1999). Conditions respectively. Of the remaining Deinandra conjugens fruits are each during some years are better for growth populations, 8 are reported to support one-seeded and are likely to be and reproduction of Deinandra dispersed by small to large-sized conjugens in some populations (and from 1,000 to 8,000 plants each; 9 are mammals and birds based on the sticky even some portions of a population) reported to support fewer than 1,000 nature of the remaining flower parts that than during other years. Because the plants each; and 3 are considered to be are attached to the fruits and the number of standing plants in a given extirpated (CNDDB 2002). All of the discontinuous distribution of other population can vary by orders of above referenced populations occur on tarplants (B. Baldwin, in litt. 2001; M. magnitude from one year to the next, the Federal, local, and private lands Dodero, pers. comm., 2001; Elizabeth number of standing plants observed in (CNDDB 2002). Friar, Claremont Graduate University, a population in any one year does not Some of the smaller populations of pers. comm., 2001; Gjon Hazard, necessarily indicate the potential Deinandra conjugens are believed to be (Service), pers. comm., 2001). Potential magnitude of that population. essential to the survival and seed/fruit dispersal organisms known to Deinandra conjugens has a limited conservation of the species because they occur in the region include, but are not distribution consisting of at least 25 are strategically located between larger limited to, mule deer (Odocoileus historical populations near Otay Mesa populations and likely facilitate gene hemionus), gray fox (Urocyon in southern San Diego County and one flow among them. Gene flow among cinereoargenteus), coyote (Canis population in Estado de Baja California, populations has been demonstrated to latrans), black-tailed jackrabbit (Lepus Mexico, near the United States border reduce local and global extinctions in a californicus bennettii), bobcat (Felis (CDFG 1994; Roberts 1997; CNDDB number of species (Hanski 1998; rufus), striped skunk (Mephitis 2002; Reiser 1996; herbarium records at Baldwin, in litt. 2001). Processes such as mephitis), opossum (Didelphis the SDNHM; S. Morey, in litt. 1994). mutation, genetic migration, and virginiana), racoon (Procyon lotor), and Three of the 25 historic populations of random genetic drift are known to various small land birds. Deinandra conjugens in the United adversely affect small populations A seed bank (a reserve of dormant States are considered to be extirpated (Barrett and Kohn 1991). Adverse effects seeds, generally found in the soil) is (CNDDB 2002; D. Hogan, in litt. 1990; S. from these processes on Deinandra important for year-to-year and long-term Morey, in litt. 1994). conjugens would likely be magnified by survival (Given 1994, Rice 1989). A seed The largest number of Deinandra its self-incompatibility (Keck 1959; bank includes all of the seeds in a conjugens plants were recorded in 1998 Tanowitz 1982; Baldwin, in litt. 2001). population and generally covers a larger when it was estimated that there were Maintaining gene flow among area than the extent of observable plants over 2 million individuals for the occurrences and between populations is seen in a given year. The number and species as a whole (CNDDB 2002; essential to counter the adverse effects location of standing plants in a Merkel & Associates, in litt. 1999). from the processes mentioned above,

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and to ensure the long-term survival and biological vulnerability and threats are analysis, and complete the final conservation of this species. available to support preparation of designation. This extension was agreed At the time the species was listed in listing proposals. On November 28, to by the plaintiffs and approved by the 1998, we estimated that 70 percent of 1983, we published a supplement to the court on June 2, 2002. On July 10, 2002, the suitable habitat for this species 1980 NOR that treated Deinandra we published a notice reopening the within its known range had been lost to conjugens as category 2 candidate taxa public comment period on the proposed development or agriculture (63 FR (48 FR 53640). Category 2 candidates rule for an additional 30 days and 54938). Since the listing, additional were taxa for which data in our announcing the availability of the draft habitat has been lost to development possession indicated listing was economic analysis (67 FR 45696). This (e.g., urban, commercial, industrial, ‘‘possibly appropriate but for which final critical habitat designation is residential) and agriculture (e.g., substantial information on biological consistent with the settlement grazing, farming). vulnerability and threats were not agreement. Deinandra conjugens appears to known or on file to support preparation tolerate mild levels of disturbance such of proposed rules’’ (48 FR 53640). Summary of Comments and as light grazing (Hogan, in litt. 1990; On December 14, 1990, we received a Recommendations Tanowitz, in litt. 1977). Such mild petition dated December 5, 1990, from In the June 13, 2001, proposed critical disturbances may result in habitat Mr. David Hogan of the San Diego habitat designation (66 FR 32052), we conducive to germination (Tanowitz, in Biodiversity Project, to list Deinandra requested all interested parties to litt. 1977). However, the species is conjugens as endangered. The petition submit comments on the specifics of the otherwise threatened by urbanization also requested designation of critical proposal including information related and related activities, intensive habitat. Because Deinandra conjugens to biological justification, policy, agriculture, and the invasion of non- was included in the Smithsonian economics, and proposed critical habitat native species, which may result in Institution’s Report of 1975, designated boundaries. The initial 60-day comment significant disturbance to populations as House Document No. 94–51, that had period closed on August 13, 2001. The (63 FR 54938). Because of these threats, been accepted as a petition, we regarded comment period was reopened from we anticipate that intensive long-term Mr. Hogan’s petition to list this taxon as July 10, 2002, to August 9, 2002 (67 FR monitoring and management may be a second petition. We responded to the 45969), to allow for additional needed to protect and conserve this petition by publishing a proposed rule comments on the proposed designation, species. to list Deinandra conjugens as and comments on the draft economic At the time the species was listed in endangered on August 9, 1995 (60 FR analysis of the proposed critical habitat. 1998, we estimated that about 11,930 ha 40549). On October 13, 1998, we We contacted all appropriate State (30,310 ac) of land with clay soils or published a final rule listing Deinandra and Federal agencies, county clay subsoils were within the general conjugens as threatened (63 FR 54938). governments, elected officials, and other range of Deinandra conjugens in San At that time, we indicated that interested parties and invited them to Diego County, California (63 FR 54938). designation of critical habitat was not comment. In addition, on June 13, 2001, Also at that time, about 4,200 ha (10,600 prudent. ac) (about 37 percent) of this area had On July 15, 1999, the California we invited public comment through the been urbanized and about 4,155 ha Native Plant Society (CNPS) and publication of a legal notice in the San (10,555 ac) (about 37 percent) had been Southwest Center for Biological Diego Union-Tribune newspaper in heavily cultivated and grazed (63 FR Diversity (SWCBD) filed a lawsuit in southern California. We provided 54938). Additional areas have been lost U.S. District Court for the Southern notification of the draft economic to urbanization since this time. New District of California, in part, analysis to all interested parties. This information from herbarium records at challenging our decision not to was accomplished through telephone the SDNHM indicates that the historical designate critical habitat for Deinandra calls, letters, and news releases faxed range of Deinandra conjugens extended conjugens (California Native Plant and/or mailed to affected elected further to the north and northwest. Most Society; et al. v. Babbitt, et al., officials, media outlets, local of the habitat in this additional area has 99CV1454 L (S.D.Cal.). On December 21, jurisdictions, and interest groups. We already been lost to development. Much 2000, we entered into a stipulated also posted the proposed rule and draft of the cultivated and grazed lands in settlement agreement with the plaintiffs economic analysis and associated this range could be restored to support under which we agreed to reevaluate the material on our Carlsbad Fish and Deinandra conjugens, which can grow prudency determination for Deinandra Wildlife Office internet site following in the margins of cultivated fields (S. conjugens by May 30, 2001. If we their release on June 13, 2001, and July McMillan, pers. comm., 2001; M. determined that critical habitat was 10, 2002, respectively. Dodero, pers. comm., 2001). However, prudent, we were to publish a proposed We received a total of 11 comment most of these lands will likely be rule to designate critical habitat by June letters, from 8 separate parties during unavailable for the species because of 5, 2000, with a final determination to be the two public comment periods. proposed urban and agricultural land completed by May 30, 2002. On June 1, Comments were received from Federal use (Carlsbad Fish and Wildlife Office 2001, we determined that designation of and local agencies, and private GIS database 2002 which includes critical habitat was prudent, and on organizations and individuals. No coverages from San Diego Association of June 13, 2001, we published in the response was received from State Governments). Federal Register a proposed rule to agencies. Of these 11 comment letters, 4 designate approximately 2,685 ha (6,630 were in favor of the designation, and 7 Previous Federal Action ac) of land as critical habitat for against it. We reviewed all comments On December 15, 1980, we published Deinandra conjugens (66 FR 32052). We received for substantive issues and a Notice of Review (NOR) of plants requested a 6-month extension (until comments, and new information which included Deinandra conjugens as November 30, 2002) to complete the regarding Deinandra conjugens. Similar a category 1 candidate taxon (45 FR final designation to allow us adequate comments were grouped into three 82480). Category 1 taxa were those taxa time to complete an economic analysis, general issues relating specifically to the for which substantial information on obtain public comment on the economic proposed critical habitat determination

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and draft economic analysis on the where Deinandra conjugens has not to minimize the inclusion of areas that proposed determination. been observed historically or recently do not contain the primary constituent because we cannot document that these elements for Deinandra conjugens. Peer Review areas are essential for the conservation However, due to our mapping scale, We requested four biologists, who of the species. However, we proposed some areas not essential to the have knowledge of Deinandra for designation those areas that we conservation of Deinandra conjugens conjugens, to provide peer review of the believe to be essential, that possess core are included within the boundaries of proposed designation of critical habitat populations, and have unique ecological proposed and final critical habitat. for Deinandra conjugens. Two of the characteristics. These areas, such as existing housing four peer reviewers submitted Comment 2: One commenter developments, roads, or other comments on the proposed designation. expressed concern that the most current developed lands do not provide habitat Both reviewers strongly endorsed the and therefore, the best scientific data for Deinandra conjugens. Because they proposal, citing the importance of available for the Rolling Hills Ranch do not contain one or more of the genetic diversity to the survival of project was not used. The commenter primary constituent elements for the Deinandra conjugens. One reviewer further suggests that the proposed rule species, Federal actions limited to those supported our inclusion of living seed underestimates the number of areas will not trigger a section 7 banks, in areas where plants are not Deinandra conjugens individuals consultation of the Act, unless they evident every year, and concurred that located on Rolling Hills Ranch, affect the species or primary constituent we fully considered in the proposal the specifically, that 2000 survey data elements in adjacent critical habitat. importance of genetic diversity found in submitted to the Service in April and Comment 4: One commenter major and minor populations. July of 2001 should be used to redefine expressed concern that the proposed Comments were either incorporated the critical habitat boundaries at Rolling critical habitat does not encompass all directly into the final rule or final Hills Ranch. areas needed to provide for genetic addendum to the economic analysis or Our Response: As discussed in the exchange between occurrences of addressed in the following summary. proposed rule, we did rely on the most Deinandra conjugens. For instance, Map recent data from the 2000 survey season Issue 1: Biological Justification and Units 2 and 3 result in genetically at Rolling Hills Ranch to develop the Methodology isolated areas of critical habitat; Unit 1 boundaries of proposed critical pollinators and seed dispersers would Comment 1: One commenter habitat for Deinandra conjugens. The not be capable of maintaining genetic expressed concern over eliminating subject 2000 survey data was provided exchange among these and other critical areas with negative survey results from to the Service in April 2001, prior to the habitat areas. Also, Unit 2F, 2G, and 2H, analysis where there may be primary proposal. This data for the most part, constituent elements and thereby corroborated decisions made during the and Unit 3A should be one eliminating them from potential development of the proposed critical interconnected unit; there is no inclusion in critical habitat. habitat rule, and identified new areas of scientific justification for segregating Our Response: The definition of occupancy at Rolling Hills Ranch. Some these areas into separate polygons. critical habitat in section 3(5)(A) of the of these areas within the proposed Our Response: In developing the Act includes ‘‘(i) specific areas within critical habitat, in which Deinandra proposed critical habitat, we evaluated the geographic area occupied by a conjugens was documented for the first those areas essential to the conservation species, at the time it is listed in time in 2000, have not been included in of Deinandra conjugens and that are accordance with the Act, on which are the final designation for reasons covered by a legally operative Habitat found those physical or biological discussed in this rulemaking. The Conservation Plan (HCP). Those areas features (I) essential to the conservation occurrence data and supporting believed to be biologically essential, but of the species and (II) which may documentation used in the rulemaking already covered by a legally operative require special management are available for inspection at the HCP, were excluded from this considerations or protection; and (ii) Carlsbad Fish and Wildlife Office by designation pursuant to section 4(b)(2) specific areas outside the geographic appointment (please see ADDRESSES of the Act. Consequently, those areas area occupied by a species at the time section of this rule). within the subject critical habitat units it is listed, upon a determination that Comment 3: One commenter containing essential Deinandra such areas are essential for the questioned the biological justification conjugens habitat within the San Diego conservation of the species.’’ The term for proposing critical habitat for County Subarea Plan of the San Diego ‘‘conservation,’’ as defined in section Deinandra conjugens using a landscape- County Multiple Species Conservation 3(3) of the Act, means ‘‘to use and the scale approach when they believed that Plan (MSCP) are excluded. These use of all methods and procedures more precise information is available for exclusions create the appearance of which are necessary to bring any use by the Service. habitat gaps that could limit genetic endangered species or threatened Our Response: We recognize that not exchange. Though some of these gap species to the point at which the every parcel of land within the external areas do not contain primary constituent measures provided pursuant to the Act boundaries of the critical habitat elements, most gap areas include lands are no longer necessary’’ (i.e., the designation will contain the habitat conserved under existing HCPs. After species is recovered and removed from components essential to the evaluating the relative locations of the List of Endangered and Threatened conservation of Deinandra conjugens. In populations, and evaluating their Species). the absence of more detailed map genetic exchange potential, we only As we discussed in our proposed information during the preparation of designated areas determined to be critical habitat for the Deinandra the proposed and final designations, we essential that require special conjugens, we identified those areas that used a 100–m UTM grid and hardline management. Because areas conserved currently contain populations or reserve boundaries to delineate critical in reserves under existing HCPs receive provide habitat components essential to habitat. special management pursuant to those the conservation of Deinandra In developing the proposed rule and plans, they were not included in conjugens. We excluded some areas this final designation, we made an effort proposed or final critical habitat.

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Issue 2: Policy and Regulations Chula Vista in year 2000. The assurance available. This information included the Comment 5: One commenter is not affected or diminished by the conservation management and suggested that designating critical designation. protections afforded Deinandra habitat for Deinandra conjugens on San Under the Annexation Agreement, conjugens under the San Diego County Miguel Ranch project lands that will Trimark (the project proponent) has MSCP and the Chula Vista Subarea Plan limited rights to encroach on certain become part of the San Diego National currently being developed. The SDNWR lands and the right to request Wildlife Refuge (SDNWR) is not boundaries of our proposed critical an encroachment easement on other adequate to provide the necessary and habitat designation in some areas SDNWR lands. If the Service approves appropriate levels of assurance to San matched those of the proposed reserve such encroachment, Trimark is required Miguel Ranch. The commenter for the Chula Vista Subarea Plan, to provide mitigation as described in the explained that San Miguel Ranch, as a because in our analysis of the subarea Annexation Agreement. The inclusion third party beneficiary to the MSCP plan, we concluded that these of SDNWR lands in critical habitat does boundaries incorporated areas essential Implementing Agreement, is covered by not conflict with the Annexation to the conservation of Deinandra an existing legally operative HCP that Agreement or interfere with any conjugens. For reasons discussed in the addresses Deinandra conjugens. Finally, assurances provided to the San Miguel Critical Habitat section of this the commenter suggests that, due to the Ranch project under the transferred rulemaking, we reevaluated and conservation protections and County permit. While San Miguel Ranch ultimately modified the critical habitat management measures assured for is covered by a legally operative HCP, boundaries at Rolling Hills Ranch and Deinandra conjugens through the those lands identified for transfer to the Bella Lago. The modifications reflect the SDNWR Annexation Agreement, the SDNWR under the Annexation results of additional analysis of benefits of excluding San Miguel Ranch Agreement will become federal lands Deinandra conjugens habitat within the outweigh the benefits of including of conserved and managed by the Service projects’ boundaries and discussions San Miguel Ranch in the designation. in accordance with Annexation regarding conservation of essential Our Response: Pursuant to section Agreement and the laws and regulations habitat with the project proponents and 4(b)(2) of the Act, we may exclude any governing the National Wildlife Refuge the outcome of a Section 7 conference area from designated critical habitat if System. Therefore the considerations opinions on Bella Lago and Rolling Hills we believe that the benefits of excluding underlying out exclusion of lands Ranch. The reserve boundaries for the such lands outweigh the benefits of within approved HCPs under 4(b)(2) of Chula Vista subarea plan currently out including those lands in critical habitat, the Act do not apply here. The Service for review, including Bella Lago and providing that the exclusion would not has not completed a Comprehensive Rolling Hills Ranch, are consistent with result in the extinction of the species. Management Plan and Step-down this final rule. We have generally excluded from Refuge Management Plan that Comment 7: One commenter critical habitat areas within legally adequately addresses management and requested that we conduct the analysis operative HCPs that ‘‘cover’’ the subject monitoring of Deinandra conjugens. necessary to conclude that the City of species by protecting, and providing Thus the refuge lands, which we have Chula Vista’s proposed MSCP Subarea management for, the essential habitat of determined are essential for the Plan should be excluded from the the species within the plan area. We conservation of Deinandra conjugens, critical habitat designation pursuant to have used the provisions of section continue to require special management section 4(b)(2) of the Act. The 4(b)(2) of the Act for the exclusion of and thus meet the definition of critical commenter asserts that we should lands covered by approved HCPs, habitat under section 3(5)(A) of the Act. withdraw and revise the proposed because we believe that the benefits of Finally, because the SDNWR lands are critical habitat designation to include an excluding them outweigh the benefits of federal lands, Section 7, which is the analysis and finding that the benefits of including them. primary regulatory benefit of excluding the City’s plan outweigh the Prior to annexation by the City of designating lands as critical habitat, will benefits of inclusion. Chula Vista, the San Miguel Ranch apply to activities carried out on the Our Response: Section 4(b)(2) of the project was covered under the County of lands. We are not aware of any facts that Act allows us to exclude from critical San Diego’s approved and legally indicate that the benefits of excluding habitat designation areas where the operative Subarea HCP. In 2000, that the SDNWR lands from critical habitat benefits of exclusion outweigh the portion of the County of San Diego’s under section 4(b)(2) of the Act would benefits of designation, provided the incidental take permit that covers San outweigh the benefits of including them exclusion will not result in the Miguel Ranch was transferred to the as critical habitat. extinction of the species. We believe City of Chula Vista. Under the County Comment 6: Several commenters that in most instances the benefits of of San Diego Subarea Plan suggested that the final critical habitat excluding legally operative HCPs from Implementing Agreement, the County boundary should be consistent with critical habitat designations will and third party beneficiaries, as that boundaries of the reserves being outweigh the benefits of including them. term is defined in the Implementing established under the Chula Vista Deinandra conjugens is a covered Agreement, are assured that if the Subarea Plan of the San Diego County species in the proposed Chula Vista critical habitat is designated, they will MSCP (e.g., Rolling Hills Ranch and Subarea Plan; however, the Subarea not be required to provide additional Bella Lago). Plan is not yet approved or legally mitigation beyond that imposed on their Our Response: As previously operative. The plan has been released to project in accordance with the Subarea discussed in this rulemaking, we the public for review and may be Plan without their consent. Those proposed to designate as critical habitat revised as a result of comments received assurances continue to extend to San for Deinandra conjugens those lands by the public. The Service has not Miguel Ranch, to the extent it maintains believed to be essential to the conducted a review of the plan under third party beneficiary status, with the conservation of the species. During the section 7 or section 10 of the Act to transfer of that portion of the County of development of the proposal, we took determine whether it meets the criteria San Diego’s incidental take permit that into consideration the most current and for issuance of an incidental take covers San Miguel Ranch to the City of best commercial and scientific data permit. Nor has the Service completed

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its review of the plan under NEPA. such, the small disjunct critical habitat established under approved subarea Exclusion of the plan area under section areas as currently proposed are plans. 4(b)(2) of the Act based on a proposed inadequate to support the long-term Comment 10: One commenter plan that may change and that has not survival of Deinandra conjugens. concluded that all lands containing the been approved by the Service would be Our Response: Deinaindra conjugens species’ primary constituent elements inappropriate. is a covered species under the City and are essential to the conservation of the We anticipate that the Chula Vista County of San Diego subarea plans of species. Subarea Plan and other future HCPs in the MSCP. As discussed later in this Our Response: By definition (see the range of Deinandra conjugens will rule, Section 10(a)(1)(B) of the Act sections 3(5)(A) and 3(5)(C) of the Act), include it as a covered species and authorizes the Service to issue to non- essential critical habitat generally provide for its long-term conservation. If Federal entities a permit for the take of describes a subset of the area potentially the Chula Vista Subarea Plan or other endangered and threatened animal containing primary constituent elements HC056that address Deinandra conjugens species incidental to otherwise lawful for a species. As discussed in the as a covered species are ultimately activities. An incidental take permit methods section of the proposed and approved and legally operative, we may must be supported by an HCP that this final rule, to determine areas reassess the critical habitat boundaries identifies conservation measures that essential for the conservation of in light of the approved HCP. minimize and mitigate the impacts of Deinandra conjugens, we used the best Comment 8: One commenter take of covered animal species to the scientific and commercial data available expressed concern that we did not maximum extent practicable and that pertaining to known habitat sufficiently support our decision to we believe necessary to reduce project- requirements of the species. Areas reverse our determination that related effects to the extent that they do designated as critical habitat for designation of critical habitat for not appreciably reduce the likelihood of Deinandra conjugens are within the Deinandra conjugens is not ‘‘prudent.’’ the survival and recovery of the species current known range of the species and Finally, the commenter requests that we in the wild. Where an HCP includes contain one or more primary constituent elements essential for the conservation withdraw and reconsider our sufficient conservation measures to determination that designation of of the species. In our proposed and final preclude jeopardy for listed plant critical habitat is now prudent. designation of critical habitat, we species, we will also include such Our Response: In our final rule listing selected essential habitat areas based on species on the incidental take permit in Deinandra (= Hemizonia) conjugens as occurrence data, soils, vegetation, recognition of those conservation threatened under the Act (63 FR elevation, topography, and current land benefits even though take of listed plant 549384), we found that designation of uses. During this analysis, it was species is not prohibited under Section critical habitat was not prudent because determined that some areas containing 9 of the Act. it occurs primarily on private lands with one or more primary constituent little or no Federal involvement. As we In the proposed rule we discussed at elements did not represent suitable discuss in the Previous Federal Action length the relative benefits of including habitat or were otherwise not essential section of this final rule, we were or excluding from critical habitat lands for the conservation of the species. challenged on our original ‘‘not covered by a legally operative HCP that prudent’’ finding. On December 21, includes Deinandra conjugens as a Issue 3: Economic Issues 2000, we agreed to a stipulated covered species (see 66 FR 32060–61). Comment 11: One commenter settlement that required us to publish a In particular we noted that the benefits expressed concern that the deferral of proposal to withdraw the existing ‘‘not of including HCP lands in critical economic and other relevant impacts in prudent’’ critical habitat determination habitat are normally small to non- preparing the proposed rule violates the and make a new prudency existent because approved HCPs are requirements of the Act. The commenter determination. In the Prudency already designed to ensure the long- acknowledges our position from Determination section of the proposed term survival of covered species. HCPs previous critical habitat designations rule, we detailed our reasoning for typically protect essential habitat in pursuant to the specific implementing determining that critical habitat is, in reserves that are managed to protect, regulations (50 CFR 424.19) that it is not fact, prudent for Deinandra conjugens. restore, and enhance their value as required by law to conduct an economic In general, we concluded that there may habitat for the species. Moreover, before analysis at the time critical habitat is be some additional benefits to approving an HCP or issuing an initially proposed. The commenter designating critical habitat, including incidental take permit, we complete a asserts, however, that the implementing instances where section 7 consultation section 7 of the Act consultation on the regulations contradict the Act (16 U.S.C. would be triggered only if critical proposed permit and must conclude 1533(b)(2)) (i.e., section 4(b)(2) of the habitat is designated, educational or that the permit will not result in Act), whereas the statute calls for informational benefits to designating jeopardy to any covered species in the designation of critical habitat after critical habitat, and significant plan area. taking into consideration economic occurrences of Deinandra conjugens The reserves established under the impacts of specifying any particular area that have come under Federal lands approved MSCP subarea plans include as critical habitat. The commenter jurisdiction since the time of listing. essential populations of Deinandra. suggests that we ignored economic The publication of our June 13, 2001, Those areas we are designating as effects and other related effects until proposal and this final rule are in critical habitat include essential habitat after critical habitat boundaries are compliance with that determination and for Deinandra conjugens within HCPs established. Conversely, the commenter the stipulated settlement agreement and that are currently under development, asks how the proposed rule text can subsequent court orders. but have not yet been approved, and suggest that ‘‘the designation of critical Comment 9: One commenter other essential habitat outside of habitat is not likely to result in a suggested that lands covered by the approved HCPs. The critical habitat significant regulatory burden above that MSCP (or other HCPs) do not provide designation provides connectivity already in place due to the presence of adequate protection for long-term among Deinandra conjugens listed species,’’ if an economic analysis conservation of Deinandra conjugens; as populations protected within reserves has not yet been conducted.

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Our Response: Pursuant to section Service, 248 F.3d 1277, 1281–1285) habitat methodology fails to meet the 4(b)(2) of the Act, we designate critical require this type of analysis and standards of the Act as held by the 10th habitat and make revisions thereto on requests that the Service explain the Circuit Court [New Mexico Cattle the basis of the best available scientific factual and legal basis for its decision Growers Ass’n v. U.S.F.W.S., 248 F.3rd data and after taking into consideration that other pending and final critical 1277 (10th Cir. 2001)] in that the economic impacts and other relevant habitat designations can be considered economic analysis cannot be separated impacts associated with the designation. separately. from the action listing the species. We published our proposed designation Our Response: The commenter Our Response: In New Mexico Cattle in the Federal Register on June 13, 2001 appears to be using the term Growers Ass’n v. U.S.F.W.S., 248 F.3d (66 FR 32052). At that time, our ‘‘cumulative impacts’’ in the context of 1277 (10th Cir. 2001) the 10th Circuit Division of Economics and their the National Environmental Policy Act recently held that the baseline approach consultants, Industrial Economics, Inc., (NEPA), which does not apply to this to economic analysis of critical habitat initiated the draft economic analysis. rulemaking. See the National designations that was used by the The draft economic analysis was made Environmental Policy Act section of this Service for the southwestern willow available for public comment and rule. We are required to consider only flycatcher designation was ‘‘not in review beginning on July 10, 2002 (67 the effect of the proposed government accord with the language or intent of the FR 45696). Following a 30-day public action, which in this case is the ESA.’’ In particular, the court was comment period on the proposal and designation of critical habitat for concerned that the Service had failed to draft economic analysis, a final Deinandra conjugens. The appropriate analyze any economic impact that addendum to the economic analysis was baseline for use in this analysis is the would result from the designation, completed which takes into regulatory environment without this because it took the position in the consideration public comments. Both regulation. While, consistent with New economic analysis that there was no the draft economic analysis and the Mexico Cattlegrowers v. U.S. Fish and economic impact from critical habitat addendum were used in the Wildlife Service, we considered the that was incremental to, rather than development of this final designation of costs and benefits of both the listing of merely co-extensive with, the economic critical habitat for Deinandra conjugens. Deinandra conjugens and the impact of listing the species. The Please refer to the Economic Analysis designation of critical habitat for this Service had therefore assigned all of the section of this final rule for a more species in establishing an upward possible impacts of designation to the detailed discussion of these documents. estimate of economic effects, and then listing of the species, without Therefore, our designation of critical attempted to identify and measure the acknowledging any uncertainty in this habitat does take into consideration additional costs and benefits associated conclusion or considering such economic and other impacts considered with this designation of critical habitat, potential impacts as transaction costs, during the rulemaking process. when critical habitat for other species reinitiations, or indirect costs. The court As stated earlier in this final rule, has already been designated, it is rejected the baseline approach Federal agencies already consult with us properly considered part of the baseline incorporated in that designation, on activities in areas currently occupied for this analysis. Proposed and future concluding that, by obviating the need by Deinandra conjugens, or if the critical habitat designations for other to perform any analysis of economic species may be affected by the action, to species in the area will be part of impacts, such an approach rendered the ensure that their actions do not separate rulemakings, and consequently, economic analysis requirement jeopardize the continued existence of their economic effects will be meaningless. the species. Since Deinandra conjugens considered separately. In this analysis, the Service addresses critical habitat is considered occupied Comment 13: One commenter the 10th Circuit’s concern that we give by either standing plants or seed bank, suggested that the critical habitat meaning to the ESA’s requirement of and we already consult on other listed designation triggers ‘‘No Surprises’’ considering the economic impacts of species, including the coastal California regulations due to Deinandra designation by acknowledging the gnatcatcher (Polioptila californica conjugens’’ coverage in the MSCP, and uncertainty of assigning certain post- californica) and the Quino checkerspot that we should pay all the costs designation economic impacts butterfly (Euphydryas editha quino), associated with the designation. (particularly section 7 consultations) as that have designated critical habitats Our Response: Permittees and third having resulted from either the listing or that overlap with Deinandra conjugens, party beneficiaries, as the term is the designation. We also understand we do not anticipate a significant defined under various MSCP Subarea that the public wants to know more additional regulatory burden will result Plan Implementing Agreements, are about the kinds of costs consultations from the designation of critical habitat assured that in the event critical habitat impose and frequently believe that for Deinandra conjugens. We made our is designated for a covered species, such designation could require additional anticipatory statement that the as Deinandra conjugens, within the project modifications. designation of critical habitat was not boundaries of approved subarea plans, Therefore, this analysis incorporates likely to result in a significantly higher they will not be required to provide two baselines. One addresses the regulatory burden based on the additional mitigation consisting of impacts of critical habitat designation information available at the time. The money, land or restrictions on land, that may be attributable co-extensively economic analysis has demonstrated beyond the level of mitigation imposed to the listing of the species. Because of that our initial assumption was correct. on their projects in accordance with the the potential uncertainty about the Comment 12: One commenter subarea plans without their consent. benefits and economic costs resulting suggested that the Service failed to take The designation of critical habitat for from critical habitat designations, we into account the cumulative economic Deinandra conjugens does not believe it is reasonable to estimate the impacts of all the existing and proposed undermine, compromise or affect that upper bounds of the cost of project critical habitat designations. The assurance or trigger the No Surprises modifications based on the benefits and commenter believes that the Act and regulation. economic costs of project modifications relevant Federal cases (New Mexico Comment 14: One commenter that would be required due to Cattle Growers v. U.S. Fish and Wildlife expressed concern that the critical consultation under the jeopardy

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standard. It is important to note that the addresses public perception (also see and the Service would, therefore, inclusion of impacts attributable co- the Stigma Effects section of the benefit from the designation while extensively to the listing does not economic analysis) that critical habitat planning any future recovery efforts for convert the economic analysis into a designation will present additional the species. Furthermore, three tool to be considered in the context of regulatory burden. The economic significant occurrences of Deinandra a listing decision. As the court analysis effectively addresses these conjugens now occur on Federal lands, reaffirmed in the southwestern willow concerns by addressing the likelihood of which were not known at the time of flycatcher decision, ‘‘the ESA clearly an economic effect from the designation listing, substantiating the need to bars economic considerations from above and beyond the listing. The designate critical habitat on those lands. having a seat at the table when the analysis correctly asserts that Deinandra The benefit of the designation, in this listing determination is being made.’’ conjugens critical habitat is occupied by case, is the added protections afforded The other baseline, the lower either standing plants or seed bank, and by the relatively higher threshold of boundary baseline, will be a more correctly concludes that no additional responsibility required of Federal traditional rulemaking baseline. It will project modifications are likely from the agencies under section 7 the Act. attempt to provide the Service’s best designation that would not have already While we have acknowledged the analysis of which of the effects of future been recommended to address the listed potential for society to experience such consultations actually result from the species and its habitat. benefits in our economic analyses for regulatory action under review—i.e., the Comment 17: One commenter critical habitat rulemakings, our ability critical habitat designation. These costs indicated that Dudleya variegata to actually measure these benefits in any will in most cases be the costs of (variegated Dudleya) is not a State-listed meaningful way is difficult and additional consultations, reinitiated species, as stated in the draft economic imprecise at best. However, we will consultations, and additional project analysis. The commenter suggested that continue to explore ways that will allow modifications that would not have been this statement leads to significant us to provide more quantitative required under the jeopardy standard adjustments in the cost impacts within descriptions of the potential benefits alone as well as costs resulting from the economic analysis that should be associated with a critical habitat uncertainty and perception impacts on corrected. designation. markets. The final addendum to this Our Response: Dudleya variegata is Summary of Changes From the analysis provides further information not a State-listed species. The species Proposed Rule concerning the baseline and potential status has been addressed in the final incremental effects of the designation of addendum of the economic analysis. In the development of our final critical habitat for Deinandra conjugens. However, in this case, Dudleya designation of critical habitat for Comment 15: One commenter variegata is a covered species under the Deinandra conjugens, we considered suggested that the economic analysis MSCP Plan, and as such is treated new information provided to our office cannot rely on overlap between Federal similarly to both federally and State- after the proposed designation was laws and State and local regulations. listed species under the MSCP Plan. published. We made changes from our The analysis of State-induced impacts is Therefore, adjustments in costs were proposal based on a review of public inappropriate since they are correctly made to recognize the cost of comments received on the proposed independent of Federal action, and measures intended to mitigate the designation and the draft economic could be nullified by actions of the State effects of covered activities on Dudleya analysis on the proposed designation legislature or voters. variegata under the MSCP Plan. and a re-evaluation of lands proposed as Our Response: In the case of the Comment 18: One commenter critical habitat. The refinements to the MSCP, an analysis of State-induced suggests that our ‘‘additional benefits’’ amount of land determined to be impacts is appropriate since the NCCP and ‘‘education/informational benefits’’ essential for Deinandra conjugens and program is directly tied to the HCP determinations were not substantiated, incorporated into this final designation through the terms of the MSCP are arbitrary and capricious, and are resulted in a net reduction of Implementing Agreement. Though based on litigation. approximately 120 ha (300 ac) of lands. economic impacts associated with State Our Response: In the Prudency The primary changes for this final and local actions were addressed in the Determination section of the proposed designation include the removal of 120 draft economic analysis, the document rule, we detailed our reasoning for ha (300 ac) of lands from the clearly states that all impacts are determining that critical habitat is, in development areas of the Eastlake assumed to be solely attributable to the fact, prudent for Deinandra conjugens. Woods, Bella Lago and Rolling Hills Federal listing. Please refer to the draft In general, we concluded that there may Ranch residential developments, economic analysis for further discussion be some additional benefits to Sweetwater County Park Summit Site, of this issue. designating critical habitat, including and Sweetwater Authority lands, Comment 16: One commenter instances where section 7 consultation because these lands were determined expressed concern that the preface of would be triggered only if critical not to be essential for the conservation the economic analysis acknowledges habitat is designated, educational or of Deinandra conjugens. that the public believes that critical informational benefits to designating In our proposed rule we identified habitat designation could require critical habitat, and significant certain lands within the proposed additional project modifications, while occurrences of Deinandra conjugens on development projects of Bella Lago, the document later suggests in several Federal lands recorded since the time of Eastlake Woods, and Rolling Hills instances that further modifications are listing. Ranch (all in the City of Chula Vista) not expected. The commenter suggests Although we cannot substantiate in that we believed contained primary that the economic analysis provide the present something that may occur in constituent elements and standing further defense of this position and the future, critical habitat may provide plants or seed bank for Deinandra discuss specific regulation and policy in some educational benefit by formally conjugens and included these as making the case. identifying areas within the range of proposed critical habitat. Since the time Our Response: The statement in the Deinandra conjugens essential for the of our proposal, we have reevaluated preface of the economic analysis conservation of the species. The public these areas and conclude that some of

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these lands do not contain the primary 2001) will be preserved onsite. The proponent graded the 20 ha (55 acres) constituent elements for Deinandra preserved area has broader conservation described above in preparation for conjugens and standing plants or seed value because it adjoins areas conserved development. bank, and are not essential for the long- under the San Diego MSCP and the Portions of the Rolling Hills Ranch term conservation of this species. proposed Chula Vista Subarea Plan. project site also have been excluded At the time of our proposed rule, rare Within the preservation area, from final critical habitat. In April of plant surveys had not yet been approximately 2 ha (5 ac) will be 2001, prior to the publication of the completed on portions of the Bella Lago restored to support approximately 870 proposed critical habitat rule, we were project site. Consequently, our plants. The entire area will be preserved provided with current survey boundaries for proposed critical habitat and managed in perpetuity. These lands information for the Rolling Hills Ranch were based on general information contain the plant and its primary development project that indicated the concerning soils and vegetation. constituent elements, are contiguous presence of approximately 28,000 Surveys have since been completed and with critical habitat designated for the standing Deinandra conjugens plants we have more current and definitive species on adjacent lands, and are scattered throughout the site. Following information relating to the location of considered to be essential to the the publication of the proposed rule, we Deinandra conjugens and the primary conservation of the species. In our further evaluated this new occurrence constituent elements essential to its conference opinion we determined that information in the context of: (1) Other conservation on the proposed project development of the remaining 20 ha (55 known occurrences throughout the site. We have refined the boundaries of acres) proposed as critical habitat for range of the species; (2) the consultation on the Rolling Hills Ranch development critical habitat in the southern portion Dienandra conjugens would not result of the project site to exclude project; and (3) the protections and in adverse modification of this critical approximately 5 ha (10 ac) that we now conservation measures currently habitat unit. Approximately 20 ha (55 know do not contain the plant or its established in the approved San Diego acres) were determined upon closer primary constituent elements. The MSCP and those measures proposed in analysis not to be occupied by remaining patches of land within the the draft Chula Vista Subarea Plan for Dienandra conjugens nor contain southern portion of the project site that Deinandra conjugens. primary constituent elements of its contain occupied habitat and primary Following this evaluation, we habitat. The inclusion of such areas in constituent elements are considered to concluded that approximately 85 ha the proposed rule resulted from use of be essential to the conservation of the (215 ac) within the Rolling Hills project species and are being designated as the 100-m UTM grid system which, as site are not essential to the conservation critical habitat. explained later in the rule, is not a fine of Deinandra conjugens. At the time of Approximately 20 ha (55 ac) of the enough scale to eliminate all areas that the proposed rule, we used the 100-m Eastlake Woods project site have also are not occupied or that do not contain UTM grid to identify critical habitat on been deleted from the final critical primary constituent elements, and portions of Rolling Hills Ranch, which habitat rule. Following the publication therefore do not meet the definition of resulted in designation of some areas of the proposed rule, we completed a critical habitat under 3(5)(A). Use of the that are not occupied by the species or consultation with regard to Dienandra 100-m grid resulted in the inclusion of that do not contain primary constituent. conjugens (and a conference with lands under agricultural use for many For the final rule, we have used the respect its proposed critical habitat) years that were not known to be approved boundaries specific to the pursuant to section 7 of the Act with the occupied by this species and that do not Rolling Hills Ranch project, thereby U.S. Army Corps of Engineers (Corps) contain the primary constituent eliminating some areas that do not for the Eastlake Woods project, a elements. Through the consultation and contain the plants or primary residential development (1–6–02–FW– conference opinion we were able to constituent elements for the species. 1989.2) in which we closely examined identify these lands, and we concluded Furthermore, approximately 70 and evaluated the tarplant and its that development of the lands would percent of the lands on Rolling Hills habitat on the project site. Based on the not result in the adverse modification of Ranch that have been deleted from the more thorough review of proposed proposed critical habitat. Thus, the final rule on Rolling Hills Ranch are not critical habitat under the section 7 areas excluded from critical habitat known to contain standing occurrences consultation for the Eastlake Woods were not essential for the conservation of Deinandra conjugens. These lands neighborhood project, most of the areas for the species because the majority of may contain primary constituent being excluded as critical habitat for these lands were not habitat for elements and it is possible that they Deinandra conjugens are not habitat for Deinandra conjugens, do not contain contain seed bank; however, the this species, do not contain any known long-term conservation value, and/or do excluded areas are not known to occurrences for this plant based on two not contain primary constituent support standing occurences of the years of surveys during the flowering elements. The approximately 1 ha (2 ac) species. Without better information that season, and do not contain the primary of remaining lands within the Eastlake would substantiate the importance of constituent elements for this plant Woods project did contain Dienandra these lands to the species, their because of the extensive history of conjugens and primary constituent conservation value cannot be agricultural use. As a result of the elements. However, because the determined. These lands are, therefore, consultation and conference opinion, an distribution of Dienandra conjugens in not considered essential for the area of approximately 5 ha (10 ac) that those areas was limited and restricted conservation of the species, and have had been proposed as critical habitat by active agricultural activity, we been deleted from the final critical has been preserved, is being restored, concluded they were not necessary for habitat rule. and will receive long-term monitoring the conservation of this species and Approximately 30 percent of the and management. This area is being development of the lands would not lands deleted from the final rule are retained as critical habitat. As a result result in adverse modification of considered to be occupied. We recently of the consultation, 5 ha (10 ac) (an area proposed critical habitat. Upon the completed a consultation pursuant to that contained approximately 2,160 completion of the Section 7 consultation section 7 of the Act with the Corps (1– individual Deinandra conjugens in and conference opinions, the project 6–01–F–1071.4), following an agreement

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reached among the Service, the on site contain the plant and its primary modification of habitat, the Act does not California Department of Fish and constituent elements, are contiguous provide other forms of regulatory Game, and the project proponent to with critical habitat designated for the protection to lands designated as critical modify the boundaries of proposed species on adjacent lands, and are habitat. Further, consultation under development, MSCP reserve, and MSCP essential to the conservation of the section 7 of the Act does apply to Neutral areas on the project site. MSCP species. activities on private or other non- Neutral areas are those lands being In addition, we refined the critical Federal lands whenever a Federal nexus conserved within the MSCP planning habitat boundaries for the final rule to occurs. area, in this case by Rolling Hills Ranch, exclude 5 ha (10 ac) of developed areas In order to be included in a critical that are not covered lands under the within the Sweetwater County Park habitat designation, the habitat must be MSCP. Pursuant to that agreement, Summit Site, and 5 ha (10 ac) of ‘‘essential to the conservation of the project lands containing the most developed areas within Sweetwater species.’’ Critical habitat designations important occurrences of Deinandra Authority lands. These lands do not identify, to the extent known and using conjugens and its primary constituent contain primary constituent elements the best scientific and commercial data elements are designated as MSCP for Deinandra conjugens, and are, available, habitat areas that are essential reserve and MSCP Neutral areas and therefore, not considered essential to the to the conservation of the species. Our will be protected, monitored, and conservation of the species. regulations (50 CFR 424.12(e)) also state Also, the proposed rule indicated that managed for Deinandra conjugens. that, ‘‘The Secretary shall designate as 27,000 standing plants were located on When identifying the areas set aside for critical habitat areas outside the Rolling Hills Ranch in year 2000. This geographic area presently occupied by a conservation, we focused on conserving number has been changed to 28,000 to species only when a designation limited those occurrences that we believed to correct a rounding error. Finally, the to its present range would be inadequate have the greatest chance of persistence proposed rule indicated that critical to ensure the conservation of the within the project area. We concluded habitat unit 2 encompasses species.’’ in our biological opinion that the loss of approximately 521 acres, which we Section 4(b)(2) of the Act requires that approximately 5 ha (10 ac) of occupied rounded to 520 acres for the final rule. we take into consideration the economic habitat would not result in the No change in actual acreage for unit 2 impact, and any other relevant impact, destruction or adverse modification of was made in the final rule. of specifying any particular area as proposed critical habitat for the Finally, minor changes to the critical habitat. We may exclude areas following reasons. First, the areas definition of primary constituent from critical habitat designation when conserved would receive a higher level elements for Deinandra conjugens were the benefits of exclusion outweigh the of management (e.g., invasive species also made to eliminate redundancy. benefits of including the areas within control, monitoring and adaptive Critical Habitat critical habitat, provided the exclusion management of populations, etc.) will not result in extinction of the compared to the no-project scenario. Critical habitat is defined in section 3 species. Without the project, the site was being of the Endangered Species Act (Act), as Within the geographic area occupied used for agriculture and grazing, amended, as—(i) the specific areas by the species, we will designate only activities that would not be subject to within the geographic area occupied by areas currently known to be essential. regulations under the Act because of the a species, at the time it is listed in Essential areas should already have the absence of a federal nexus. As a result, accordance with the Act, on which are features and habitat characteristics that there was a higher chance that the plant found those physical or biological are necessary to sustain the species. We occurrences onsite would be degraded. features (I) essential to the conservation will not speculate about what areas The higher level of management within of the species and (II) which may might be found to be essential if better the conserved lands would ensure the require special management information became available, or what long-term viability of the population in considerations or protection; and (ii) areas may become essential over time. the area, thereby reducing the extent of specific areas outside the geographic Within the geographic area occupied by land necessary to provide for the area occupied by a species at the time the species, we will not designate areas conservation of the species onsite. it is listed, upon a determination that that do not now have the primary Second, the preserve design for Rolling such areas are essential for the constituent elements, as defined at 50 Hills Ranch compliments regional conservation of the species. CFR 424.12(b), that provide essential conservation for Deinandra conjugens ‘‘Conservation’’ means the use of all life-cycle needs of the species. under the MSCP. As a result of this methods and procedures that are Our Policy on Information Standards regional conservation planning, lands necessary to bring an endangered Under the Endangered Species Act, essential to the conservation of this species or a threatened species to the published in the Federal Register on species are being conserved and point at which listing under the Act is July 1, 1994 (59 FR 34271), provides managed or are targeted for conservation no longer necessary. criteria, establishes procedures, and and management. Finally, from a Critical habitat receives protection provides guidance to ensure that our regional perspective, protection of all under section 7 of the Act through the decisions represent the best scientific occupied habitat on the Rolling Hills prohibition against destruction or and commercial data available. It Ranch project is not essential for the adverse modification of habitat with requires us, to the extent consistent with conservation of Deinandra conjugens; regard to actions carried out, funded, the Act, and with the use of the best the limited loss of occupied habitat for permitted, or authorized by a Federal scientific and commercial data this species at Rolling Hills Ranch will agency. Section 7 of the Act also available, to use primary and original not preclude the recovery of this plant. requires conference opinions on Federal sources of information as the basis for We were able to utilize digital map data actions that are likely to result in the recommendations to designate critical provided by Rolling Hills Ranch to destruction or adverse modification of habitat. When determining which areas refine critical habitat on the project site proposed critical habitat. Aside from the are critical habitat, a primary source of based on the modified boundary added protection that may be provided information should, at a minimum, be agreement. These lands to be protected under section 7, including adverse the listing package for the species.

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Additional information may be obtained of San Diego, County of San Diego, City management of existing populations, the from a recovery plan, articles in peer- of La Mesa, and City of Chula Vista); protection of inter-population reviewed journals, conservation plans information in the San Diego Gas and occurrences, the maintenance of normal developed by States and counties, Electric HCP (1995); and a habitat ecological functions within populations, scientific status surveys and studies, evaluation model for the Otay Mesa the preservation of the connectivity biological assessments, unpublished Generating Project. between populations to allow natural materials, and expert opinion. gene flow through pollinator activity Primary Constituent Elements Section 4 of the Act requires that we and seed dispersal mechanisms, the designate critical habitat based on what In accordance with section 3(5)(A)(i) protection and maintenance of habitat we know at the time of the designation. of the Act and regulations at 50 CFR for the survival of pollinators and seed Habitat is often dynamic, and species 424.12, in determining which areas to dispersal agents, and the preservation of may move from one area to another over designate as critical habitat, we must suitable micro-habitat that could be time. Furthermore, we recognize that consider those physical and biological recolonized and allow a population to designation of critical habitat may not features (primary constituent elements) survive a catastrophic event. The small, include all of the habitat areas that may that are essential to the conservation of fragmented range of this species, eventually be determined to be the species, and that may require special coupled with its breeding system (i.e., necessary for the recovery of the management considerations or its self-incompatibility and annual species. For these reasons, all should protection. These include, but are not habit), makes it especially vulnerable to understand that critical habitat limited to: space for individual and natural and anthropogenic effects designations do not signal that habitat population growth, and for normal including disturbance from human and outside the designation is unimportant behavior; food, water, air, light, agricultural activities; spread of non- or may not be required for recovery. minerals, or other nutritional or native species; and nearby use of Areas outside the critical habitat physiological requirements; cover or herbicides, pesticides, and other designation will continue to be subject shelter; sites for pollination and contaminants (63 FR 54938; B. Baldwin, to conservation actions that may be germination or seed dispersal; and pers. comm., 2001; S. McMillan, pers. implemented under section 7(a)(1) and habitats that are protected from comm., 2001). to the regulatory protections afforded by disturbance or are representative of the Based on our current knowledge of the section 7(a)(2) jeopardy standard historical geographical and ecological this species, the primary constituent and the applicable prohibitions of distributions of a species. All areas elements of Deinandra conjugens section 9 of the Act, as determined on designated as critical habitat for critical habitat consist of, but are not the basis of the best available Deinandra conjugens are within the limited to, soils with a high clay content information at the time of the action. currently known range and contain one (generally greater than 25 percent) (or Federally funded or assisted projects or more of these physical or biological clay intrusions or lenses) that are affecting listed species outside their features (primary constituent elements) associated with grasslands, open coastal designated critical habitat areas may essential for the conservation of the sage scrub, or maritime succulent scrub still result in jeopardy findings in some species. communities between 25 m (80 ft) and cases. Similarly, critical habitat The designated critical habitat is 300 m (1000 ft) elevation (Bauder et al. designations made on the basis of the designed to provide sufficient habitat to 2002, CNDDB 2002). These plant best available information at the time of maintain self-sustaining populations of communities contain natural openings designation should not control the Deinandra conjugens throughout its that provide habitat for the Deinandra direction and substance of future range, and provide those habitat conjugens life-cycle, and pollen and recovery plans, components essential for the seed dispersal agents (M. Elvin, pers. plans, or other species conservation conservation of the species. Habitat obs., 2001). planning efforts if new information components that are essential for Criteria Used To Identify Critical available to these planning efforts calls Deinandra conjugens are found in Habitat for a different outcome. vegetation communities classified as, but not limited to, grasslands, coastal In our final delineation of critical Methods sage scrub, or maritime succulent scrub habitat for Deinandra conjugens, we In determining areas that are essential in southwestern San Diego County, selected areas essential to the to conserve Deinandra conjugens, we California. These habitat components conservation of the species from within used the best scientific and commercial provide for: (1) Individual and its known historical range. We used data data available. We reviewed available population growth, including habitat for from documented occurrences, various information that pertains to the habitat germination, pollination, reproduction, GIS layers, and recent aerial requirements of this species, including pollen and seed dispersal, and seed photography. These data include data from research and survey dormancy; (2) areas that allow gene flow Deinandra conjugens locations, soils, observations published in peer- and provide connectivity or linkage vegetation, elevation, topography, and reviewed articles; regional GIS between or within larger populations, current land uses. coverages (e.g., soils, known locations, including open spaces and disturbed We began by using the GIS layers to vegetation, land ownership, and HCP areas that in some instances may also identify areas of suitable habitat within boundaries); information from contain introduced plant species; (3) the geographic distribution of this herbarium collections such as those areas that provide basic requirements species. We selected areas with from SDNHM; data from the CNDDB for growth such as water, light, and appropriate soils and vegetation that are (2002); data collected from project- minerals; and (4) areas that support limited to the elevational range of the specific and other miscellaneous reports pollinators and seed dispersal species within its known distribution. submitted to us; additional data from organisms. We then selected soils and plant the San Diego County Multiple Species The long-term survival and communities that overlapped known Conservation Program (MSCP), such as conservation of Deinandra conjugens is Deinandra conjugens occurrences. information from Subarea or draft dependent upon a number of factors, Areas occupied by Deinandra conjugens Subarea HCPs (Subarea Plans) (e.g., City including the protection and cannot be determined accurately either

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by cursory field examination or by the Deinandra conjugens, based on inclusion pursuant to section 4(b)(2) of limited data from historical herbarium records. We also compared the Act. Areas excluded based on this observations. The entire population of the remaining areas of suitable criterion consist of lands within the an annual plant (which includes all of Deinandra conjugens habitat with County of San Diego and City of San the seeds in the subterranean seed bank recent project information and aerial Diego subarea plans, with the exception and the observable plants above ground) photography so as not to include areas of those lands within the major and is not visible at any one time. The entire that have recently been developed. minor amendment areas addressed seed bank does not germinate at once, We conducted this analysis to within the subarea plans, where the and the visible population of plants facilitate delineation of suitable habitat impacts to and conservation of rarely reflects the size or distribution of containing the primary constituent Deinandra conjugens have not been the seed bank. There may be no elements. The long-term survival and addressed. Apart from the lands with standing plants in an area occupied by conservation of Deinandra conjugens is operative HCPs, the majority of the the species for a year or even a span of dependent upon the protection and remaining occupied habitat for several years, until local climatic and management of existing essential Deinandra conjugens falls within other conditions are suitable for seed populations, and the associated seed designated or draft preserve areas germination. The size and distribution bank, and the maintenance of ecological within the MSCP. of the standing plant population may functions within and between these In defining critical habitat boundaries, move, shrink, or grow as conditions populations, including connectivity we made an effort to exclude all change, without a similar change in the within and among populations to allow developed areas, such as towns or distribution of the seed bank. effective pollinator activity and seed housing developments, and lands Consequently, the results of Deinandra dispersal. unlikely to contain the primary The boundaries of designated critical conjugens population mapping efforts constituent elements essential for habitat for Deinandra conjugens, shown have been variable, depending both on conservation of Deinandra conjugens. on the attached maps and defined in the the scale of the mapping and the year in Our 100-m UTM grid minimum legal description, are based on a 100- which the surveys were conducted mapping unit was designed to minimize meter Universal Transverse Mercator (documented examples include the amount of development along the (UTM) grid, boundaries that have been estimated records of standing plants urban edge included in our designation. legally described for the City of Chula ranging from one to more than 5,400 Lands containing existing features and plants for one population (CNDDB 2002; Vista’s draft preserve design for their draft MSCP Subarea Plan and the structures, such as buildings, roads, City of San Diego, in litt. 1999), from railroads, urban development, and other about 100 to 50,000 in another (CNDDB County of San Diego’s major and minor amendment areas for their MSCP similar developed features are not likely 2002), and from 280,000 to 1.9 million Subarea Plan, Sweetwater Authority to contain primary constituent elements. plants in another population (CNDDB lands (a water district in San Diego Federal actions limited to those areas 2002)). In the case of the related County), Otay Water District lands, would not trigger a section 7 Holocarpha macradenia (Santa Cruz Federal lands (e.g., Immigration and consultation, unless they affect the tarplant), seemingly unoccupied habitat Naturalization Service (INS), San Diego species or the primary constituent has been determined to contain a viable National Wildlife Refuge lands elements in adjacent critical habitat. seed bank where standing plants have (SDNWR)), and Trust for Public Lands The designated critical habitat units not been seen in over 7 years property. This grid was overlaid on described below constitute our best (Bainbridge, in litt. 1999). By those areas determined to be essential assessment of areas that are essential for overlapping known occurences of and indicated by the Deinandra the species’ conservation. As Deinandra conjugens with appropriate conjugens habitat analysis where we did anticipated in the proposed rule, based soil types, elevations, and other habitat not have legal descriptions for upon the additional information characteristics, we have included what boundaries. received during the public comment we believe is the likely distribution of As we discuss in detail below (see period and field surveys after the the seed bank around these occurences ‘‘Relationship To Habitat Conservation proposed rule was published, the of Deinandra conjugens. Plans and Other Planning Efforts’’), boundaries of the mapping units have We then eliminated areas that did not lands that are covered by an existing, been refined. contain both appropriate soils and legally operative, HCP with an operative Critical Habitat Designation appropriate vegetation such as, but not implementing agreement (IA) in which limited to, currently used agriculture Deinandra conjugens is a covered The approximate area encompassing fields, housing developments, and open species were not included in the the designated critical habitat broken water. Next, we eliminated all areas proposed critical habitat rule because down by land ownership is shown in above 300 m (1,000 ft) elevation, the we determined that the benefits of Table 1. All of the designated critical upper limit of the known distribution of exclusion outweigh the benefits of habitat is in San Diego County, CA.

TABLE 1.—APPROXIMATE DESIGNATED CRITICAL HABITAT IN HECTARES (HA) (ACRES (AC)) LAND OWNERSHIP 1

Federal 2 State/local Private Total

715 ha 580 ha 1,265 ha 2,560 ha (1,765 ac) (1,440 ac) (3,125 ac) (6,330 ac) 1 Hectares have been converted to acres (1 ha = 2.47 ac). Based on the level of imprecision of mapping at this scale, hectares and acres have been rounded to the nearest 5. 2 Federal lands include the Service and INS lands.

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Critical habitat includes habitat portion of the SDNWR that had Unit 3: Otay Valley/Big Murphy’s Unit throughout the species’ current range in approximately 2,000 standing plants in The Otay Valley/Big Murphy’s Unit the United States (San Diego County, 1993 (CNDDB 2002). encompasses approximately 910 ha California). Lands designated are under As discussed in the Changes From the (2,250 ac). It is east of Interstate 805, Proposed Rule section of this final rule, Federal, State, local, and private north of the International Boundary portions of lands containing the ownership. Federal lands include areas between the United States and Mexico approximately 28,000 plants in the owned or managed by the Service and on the east side, north of State Route Rolling Hills Ranch population (i.e., the INS. Lands designated as critical habitat 905 on the west side, west of Otay MSCP Neutral areas and proposed have been divided into three critical Mountain, and along the north rim of Chula Vista Subarea Plan reserve within habitat units. We have designated Otay Valley including Salt Creek and the Rolling Hills Ranch project), and critical habitat on lands that are Wolf Canyon. This unit includes lands considered essential to the conservation portions of other project lands (e.g., owned by INS, lands that are proposed of Deinandra conjugens. Each of these Bella Lago, Eastlake Woods) have been as preserve under the draft City of Chula critical habitat units is considered to be retained in the final rule while other Vista Subarea Plan, and lands that are occupied by either the seed bank or areas were excluded. in major and minor amendment areas in standing plants of Deinandra conjugens. This unit contains multiple large the County of San Diego Subarea Plan. A brief description of each unit, and Deinandra conjugens populations that Areas in this unit that are within the reasons for designating it as critical are capable of producing large numbers alignment for State Route 125 South habitat, are presented below. of individuals in good years, which is important for this species to survive have not been designated as critical Unit 1: Sweetwater/Proctor Valley Unit through a variety of natural and habitat because these areas have been The Sweetwater/Proctor Valley Unit environmental changes, as well as analyzed and determined not to be encompasses approximately 1,440 ha stochastic (random) events. This unit essential. (3,560 ac) at the northeastern limit of contains populations in the northern This unit contains several large this species’ distribution. This unit is and eastern extent of this species’ populations of Deinandra conjugens, south and east of State Route 54, south historicaldistribution, which is essential such as the Johnson Canyon population, and west of State Route 94, and north for its conservation. Peripheral estimated at approximately 480,000 of Upper Otay Reservoir. It includes populations may have genetic individuals (Helix Environmental portions of the Otay/Sweetwater Unit of characteristics essential to overall long- Planning, Inc. 2001), capable of SDNWR; lands belonging to the term conservation of the species (i.e., producing large numbers of individuals Sweetwater Authority around the they may be genetically different than in good years. These large populations Sweetwater Reservoir; lands belonging more central populations) (Lesica and are essential for this plant to survive to the Otay Water District; lands that are Allendorf 1995). The populations in this through a variety of natural and proposed as preserve under the draft unit can likely maintain genetic environmental changes as well as City of Chula Vista Subarea Plan; connectivity within and among stochastic events. The unit also contains portions of two project areas within the themselves, and they may maintain the Otay River Valley population, which draft City of Chula Vista Subarea Plan, genetic connectivity with the Otay was reported to have approximately but outside of the proposed preserve Valley/Big Murphy’s Unit. Therefore, 4,000 standing plants (Roberts 1997), lands; and lands that are within major the populations in this unit are essential the Wolf Canyon population, which was and minor amendment areas within the to the conservation of the species. reported to have approximately 4,000 County of San Diego Subarea Plan. Two standing plants (Roberts 1997), the Unit 2: Chula Vista Unit areas in this unit have not been Brown Field population, which had a designated as critical habitat, including The Chula Vista Unit encompasses reported 5,600 individuals in 1998 (U.S. the alignment for State Route 125 South approximately 210 ha (520 ac) at the Army Corps of Engineers 2000), and the and the San Diego County Park western portion of this plant’s range. upper Salt Creek population, which was campground realignment and Most of the populations in this unit are reported to have over 1,000 standing expansion, because these areas have found in the remaining habitat patches plants (Roberts 1997). been analyzed and determined not to be along canyon edges that were not Unit 3 contains populations in the essential to the conservation of developed. This unit contains lands that southern and eastern portions of this Deinandra conjugens. are proposed as preserve under the draft species’ distribution that are essential to This unit contains several large City of Chula Vista Subarea Plan, lands the conservation of the species. One populations of Deinandra conjugens, that are in a minor amendment area population in this unit is located at the including a portion of the Rancho San under the County of San Diego’s southwestern edge of this species’ range Miguel population estimated to contain Subarea Plan, and lands that are in a in the United States. This population approximately 855,000 standing minor amendment area under the draft may have connectivity with Deinandra Deinandra conjugens plants during the City of Chula Vista Subarea Plan. conjugens populations in northwestern 1995 and 1998 growing seasons (CNDDB This unit contains the Rice Canyon Baja California, Mexico. Because of its 2002; Merkel & Associates, in litt. 1999). population, which had more than connectivity, this population is essential A portion of the Proctor Valley 50,000 standing plants in 1994 (CNDDB to the conservation of the species. population not covered under the 2002), and the Poggi Canyon population Based on the proposed preserve approved San Diego County MSCP, that had a reported 10,000 standing design for the draft City of Chula Vista which had approximately 10,000 plants in 1990 (CNDDB 2002). This unit Subarea Plan, and the designated standing plants in the 1990 growing contains populations in the western preserve designs for the City and County season (CNDDB 2002), is also included. extent of this species’ distribution, of San Diego HCPs, these populations This unit also contains an area on the which although currently isolated from may all retain connectivity among north side of the Sweetwater Reservoir each other, may contain significant themselves because the habitat mosaic where reports indicate there are amounts of genetic diversity and are, does not have large gaps. The approximately 2,000 standing plants therefore, essential to the conservation populations in this unit may also (Roberts 1997), and an area on the north of the species. provide and receive pollen or seed from

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Deinandra conjugens populations in the modification of designated critical Fish and Wildlife Service Regional Sweetwater/Proctor Valley Unit. habitat’’ is defined as a direct or indirect Director believes would avoid the This connectivity will facilitate gene alteration that appreciably diminishes destruction or adverse modification of flow within this unit and among other the value of the critical habitat for both critical habitat. Reasonable and prudent units which, in turn, may allow the survival and recovery of the species alternatives can vary from slight project evolutionary processes that affect (50 CFR 402.02). Such alterations modifications to extensive redesign or Deinandra conjugens to continue include, but are not limited to, adverse relocation of the project. relatively unimpeded. Maintaining the changes to the physical or biological Regulations at 50 CFR 402.16 require Deinandra conjugens populations and features, i.e., the primary constituent Federal agencies to reinitiate their genetic connectivity (both within elements, that were the basis for consultation on previously reviewed and among units) is essential to the determining the habitat to be critical (50 actions in instances where critical conservation of this species. A CFR 402.02). habitat is subsequently designated, and Deinandra conjugens population north Section 7(a)(4) requires Federal the Federal agency has retained of Otay Valley and west of Otay Lakes agencies to confer with us on any action discretionary involvement or control is located within designated critical that is likely to jeopardize the continued over the action or such discretionary habitat. This population may provide existence of a species proposed for involvement or control is authorized by important genetic connectivity between listing or result in destruction or law. Consequently, some Federal the Salt Creek and Otay Valley adverse modification of proposed agencies may request reinitiation of populations. critical habitat. Conference reports consultation or conference with us on Because this unit contains a number provide conservation recommendations actions for which formal consultation of large Deinandra conjugens to assist the agency in eliminating has been completed, if those actions populations, these populations will conflicts that may be caused by the may affect designated critical habitat. maintain genetic connectivity within proposed action. The conservation Activities on Federal lands that may and among themselves, they will recommendations in a conference report affect Deinandra conjugens or its critical maintain genetic connectivity with the are advisory. habitat will require section 7 Sweetwater/Proctor Valley Unit and We may issue a formal conference consultation. Activities on private or possibly with plants in Mexico, report, if requested by the Federal action State lands requiring a permit from a therefore, the populations in this unit agency. Formal conference reports Federal agency, such as a permit from are essential to the conservation of the include an opinion that is prepared the U.S. Army Corps of Engineers under species. according to 50 CFR 402.14, as if the section 404 of the Clean Water Act, a species was listed or critical habitat section 10(a)(1)(B) permit from the Effects of Critical Habitat Designation designated. We may adopt the formal Service, or some other Federal action, Section 7 Consultation conference report as the biological including funding (e.g., from the Federal opinion when the species is listed or Highway Administration, Federal The regulatory effects of a critical critical habitat designated, if no Aviation Administration (FAA), or habitat designation under the Act are substantial new information or changes Federal Emergency Management Agency triggered through the provisions of in the action alter the content of the (FEMA)); permits from the Department section 7, which applies only to opinion (see 50 CFR 402.10(d)). of Housing and Urban Development activities conducted, authorized, or If a species is listed or critical habitat (HUD); activities by INS on land under funded by a Federal agency (Federal is designated, section 7(a)(2) requires their jurisdiction; activities funded by actions). Regulations implementing this Federal agencies to ensure that activities the U.S. Environmental Protection interagency cooperation provision of the they authorize, fund, or carry out are not Agency (EPA), Department of Energy Act are codified at 50 CFR 402. likely to jeopardize the continued (DOE), or any other Federal agency; Individuals, organizations, States, local existence of such a species or to destroy regulation of airport improvement governments, and other non-Federal or adversely modify its critical habitat. activities by FAA; and construction of entities are affected by the designation If a Federal action may affect a listed communication sites licensed by the of critical habitat if their actions occur species or its critical habitat, the Federal Communications Commission on Federal lands, require Federal responsible Federal agency (action (FCC) will also continue to be subject to authorization, or involve Federal agency) must enter into consultation the section 7 consultation process. funding. with us. Through this consultation, we Federal actions not affecting listed Section 7(a)(2) of the Act requires would ensure that the permitted actions species or critical habitat and actions on Federal agencies, including us, to insure do not destroy or adversely modify non-Federal lands that are not federally that their actions are not likely to critical habitat. funded, authorized, or permitted do not jeopardize the continued existence of a If we issue a biological opinion require section 7 consultation. listed species or result in the concluding that a project is likely to Section 4(b)(8) of the Act requires us destruction or adverse modification of result in the destruction or adverse to briefly evaluate and describe in any designated critical habitat. This modification of critical habitat, we proposed or final regulation that requirement is met through section 7 would also provide reasonable and designates critical habitat those consultation under the Act. Our prudent alternatives to the project, if activities involving a Federal action that regulations define ‘‘jeopardize the any are identifiable. Reasonable and may adversely modify such habitat, or continued existence’’ as to engage in an prudent alternatives are defined at 50 that may be affected by such action that reasonably would be CFR 402.02 as alternative actions designation. Activities that may result expected, directly or indirectly, to identified during consultation that can in the destruction or adverse reduce appreciably the likelihood of be implemented in a manner consistent modification of critical habitat include both the survival and recovery of a with the intended purpose of the action, those that alter the primary constituent listed species in the wild by reducing that are consistent with the scope of the elements to an extent that the value of the reproduction, numbers, or Federal agency’s legal authority and critical habitat for the conservation of distribution of that species (50 CFR jurisdiction, that are economically and Deinandra conjugens is appreciably 402.02). ‘‘Destruction or adverse technologically feasible, and that the reduced. We note that such activities

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may also jeopardize the continued Federal entities a permit for the organizations, and private landowners. existence of the species. Activities that, incidental take of endangered and We concluded that the benefits of when carried out, funded or authorized threatened animal species incidental to excluding lands covered by a legally by a Federal agency, may directly or otherwise lawful activities. An operative HCP would normally indirectly destroy or adversely modify incidental take permit must be outweigh the benefits of including such critical habitat include, but are not supported by an HCP that identifies lands, but that each HCP which limited to: conservation measures that the includes Deinandra conjugens as a (1) Removing, thinning, or destroying permittee agrees to implement to covered species must be evaluated Deinandra conjugens habitat (as defined minimize and mitigate the impacts of individually to determine whether the in the primary constituent elements the permitted take of the species. benefits of excluding lands containing discussion), whether by burning, Although the Act does not prohibit essential habitat within the plan area mechanical, chemical, or other means ‘‘take’’ of listed plant species, many outweighed the benefits of including (e.g., plowing, grubbing, grading, HCPs include plant species as ‘‘covered such lands. grazing, woodcutting, construction, road species’’ and provide conservation We identified three approved HCPs in building, mining, herbicide application, measures to protect the species and the San Diego County that include etc.); their habitats. We include plant species Deinandra conjugens as a covered (2) Activities that appreciably degrade on the incidental take permit in species. These HCPs are the San Diego or destroy Deinandra conjugens habitat recognition of the conservation of Gas and Electric Company HCP, and (and its primary constituent elements) habitats under the HCP provided we two subarea plans under the MSCP, a that could include, but not limited to, determine that the permit will not framework conservation plan that livestock grazing, clearing, discing, appreciably reduce the likelihood of the encompasses approximately 236,000 ha farming, residential or commercial survival and recovery of the plant (582,000 ac) of land in southwestern development, introducing or species in the wild. San Diego County and multiple encouraging the spread of nonnative In the proposed rule we discussed the jurisdictions. Those subarea plans are species, off-road vehicle use, and heavy relative benefits of including or the City of San Diego Subarea Plan and recreational use; excluding from critical habitat lands the County of San Diego Subarea Plan, (3) Appreciably diminish habitat covered by a legally operative HCP that with the exception of lands within the value or quality through indirect effects includes Deinandra conjugens as a County’s major and minor amendment (e.g., edge effects, invasion of exotic covered species (See 66 FR 32060) areas that do not address or provide plants or animals, or fragmentation); under section 4(b)(2) of the Act. In protection for Deinandra conjugens. and particular we noted that the benefits of Each of the three HCPs protects the (4) Activities that alter watershed including HCP lands in critical habitat essential habitat of Deinandra conjugens characteristics in ways that would are normally small to non-existent within their respective plan areas. We appreciably alter or reduce the quality because approved HCPs are already also completed section 7 consultations or quantity of surface and subsurface designed to ensure the survival of on each of the plans and determined flow of water needed to maintain covered species. HCPs typically protect that the approved HCPs would not grassland, scrub, and chaparral essential habitat in reserves that are jeopardize the continued existence of communities. These activities could managed to protect, restore, and the species in the wild. For the reasons include, but are not limited to, altering enhance their value as habitat for the stated in the proposed rule, we did not the natural fire regime either through species. Moreover, before approving an include in the proposed critical habitat fire suppression or prescribed fires that HCP or issuing an incidental take rule lands that encompass essential are too frequent or poorly-timed; permit, we complete a section 7 of the habitat of Deinandra conjugens within residential and commercial Act consultation on the proposed permit the boundaries of the three approved development, including road building and must conclude that the permit will HCPs, with the exception of lands in the and golf course installations; not result in jeopardy to any covered major and minor amendment areas agricultural activities, including row species in the plan area. HCPs protect under the County of San Diego Subarea crops and livestock grazing; and and manage essential habitat for covered Plan. Consequently, those lands are vegetation manipulation such as species, and typically provide greater included in this final critical habitat clearing or grubbing in the watershed conservation benefit to a species than determination. upslope from Deinandra conjugens. would result from a section 7 We recently received a revised draft of If you have questions regarding consultation. the Sweetwater Authority HCP for our whether specific activities will In contrast to negligible benefits of review, and are in the process of constitute adverse modification of including HCP lands in critical habitat, reviewing the plan’s proposed reserve critical habitat, contact the Field we noted in the proposed rule that the design. The City of Chula Vista is Supervisor, Carlsbad Fish and Wildlife benefits of excluding such lands are expected to complete their MSCP Office (see ADDRESSES section). Requests typically significant. They include Subarea planning process in the near for copies of the regulations on listed relieving landowners, communities, and future. We have worked closely with the wildlife, and inquiries about counties of any additional regulatory City of Chula Vista on the design of prohibitions and permits may be review that might be imposed by critical their preserve, specifically in relation to addressed to the U.S. Fish and Wildlife habitat. We expressed concern that the conservation of Deinandra Service, Branch of Endangered Species, imposing as additional regulatory conjugens. The City of Chula Vista’s 911 NE., 11th Ave., Portland, OR 97232 review after HCP completion could draft Subarea Plan would conserve (telephone 503/231–2063; facsimile jeopardize conservation efforts and be several large Deinandra conjugens 503/231–6243). viewed as a disincentive to those populations areas in a configuration that developing HCPs, while excluding will maintain connectivity within and Relationship to Habitat Conservation approved HCPs would encourage the among these populations. The draft plan Plans and Other Planning Efforts continued development of partnerships also includes criteria for conservation of Section 10(a)(1)(B) of the Act with HCP participants, including States, Deinandra conjugens within certain authorizes the Service to issue to non- local governments, conservation areas that have not yet been surveyed.

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The majority of the lands proposed for we may reassess the critical habitat section 7 consultations associated with conservation under the Chula Vista boundaries in light of the HCP. the listing or with the critical habitat, Subarea Plan contain clay soils and the Should additional information including incremental consultations and appropriate vegetation types for become available that changes our technical assistance; (2) modifications to Deinandra conjugens. Because the City analysis of the benefits of excluding any projects, activities, or land uses of Chula Vista and Sweetwater of these (or other) areas compared to the resulting from the section 7 Authority HCPs are not yet completed, benefits of including them in the critical consultations; (3) uncertainty and the areas within those plans essential habitat designation, we may revise this public perceptions resulting from the for the conservation of Deinandra final determination accordingly. designation of critical habitat; and (4) conjugens are included in the Similarly, if new information indicates potential offsetting beneficial costs designation of critical habitat. any of these areas should not be associated with critical habitat In the event that future HCPs, such as included in the critical habitat including educational benefits. those under development by the City of designation because they no longer meet The majority of consultations Chula Vista and Sweetwater Authority, the definition of critical habitat, we may resulting from the critical habitat covering Deinandra conjugens are revise this final critical habitat designation for Deinandra conjugens are developed within the boundaries of designation. likely to address land development, designated critical habitat, we will work road construction or road expansion Economic Analysis with applicants to ensure that the HCPs activities, and National Wildlife Refuge provide for protection and management Section 4(b)(2) of the Act requires us management activities. As described in of habitat areas essential for the to designate critical habitat on the basis the draft economic analysis, Deinandra conservation of Deinandra conjugens by of the best scientific and commercial conjugens surveys have been conducted either directing development and information available, and to consider over a broad area, and many occupied habitat modification to nonessential the economic and other relevant areas have been mapped. As a result, all areas or appropriately modifying impacts of designating a particular area of the parcels where impacts are activities within essential habitat areas as critical habitat. We may exclude areas expected are occupied by Deinandra so that such activities will not destroy from critical habitat upon a conjugens. As a result, the costs or adversely modify the primary determination that the benefits of such attributable solely to critical habitat are constituent elements. The HCP exclusions outweigh the benefits of much smaller than the total section 7 development process provides an specifying such areas as critical habitat. costs. opportunity for more intensive data We cannot exclude such areas from Following the close of the comment collection and analysis regarding the critical habitat when such exclusion period on the draft economic analysis, use of particular habitat areas by will result in the extinction of the a final addendum was completed which Deinandra conjugens. The process also species. incorporated public comments on the enables us to conduct detailed Following the publication of the draft analysis and a re-evaluation of the evaluations of the importance of such proposed critical habitat designation, a analysis of potential economic effects of lands to the long-term survival of the draft economic analysis was conducted the designation. Based on this new species in the context of constructing a to estimate the potential economic effect analysis, the cost of consultations to biologically configured system of of the proposed designation. The draft third parties was revised. Subsequently, interlinked habitat blocks. We expect analysis was made publically available the addendum concluded that the that HCPs developed by local for review on July 13, 2002. We designation may result in approximately jurisdictions (e.g., counties, cities) and accepted comments on the draft analysis $370,000 to $466,000 per year in other parties will identify, protect, and until August 9, 2002. potential economic effects due to the provide appropriate management for Our draft economic analysis evaluated total effects of critical habitat, including those specific lands within the potential future effects associated with those effects coextensive with listing. boundaries of the plans that are the listing of Deinandra conjugens as a These changes from the draft economic essential for the long-term conservation threatened species under the Act, as analysis are due to adjustments made to of the species. We expect that our well as any potential effect of the the third party cost estimates. As analyses of these proposed HCPs and critical habitat designation above and discussed in the final addendum to the proposed permits under section 7 of the beyond those regulatory and economic economic analysis, a comment letter Act will show that covered activities impacts associated with listing. To from McMillin Land Development carried out in accordance with the quantify the proportion of total potential suggested that costs associated with provisions of the HCPs and biological economic impacts attributable to the ‘‘extraordinary design measures’’ for the opinions will not result in destruction proposed critical habitat designation, Salt Creek sewer line should be or adverse modification of critical the analysis evaluated a ‘‘without considered as part of the economic costs habitat. critical habitat’’ baseline and compared of critical habitat designation as many of We will provide technical assistance it to a ‘‘with critical habitat’’ scenario. these costs are directly attributable to and work closely with applicants with The ‘‘without critical habitat’’ baseline Deinandra conjugens. However, project respect to HCPs currently under represented the current and expected modifications associated with the Salt development and future HCPs to economic activity under all Creek sewer line were primarily due to identify lands essential for the long-term modifications prior to the critical substantial avoidance of habitat conservation of Deinandra conjugens habitat designation, including occupied by the Quino checkerspot and appropriate management for those protections afforded the species under butterfly, coastal California gnatcatcher, lands. The minimization and mitigation Federal and State laws. The difference and least Bell’s vireo, along with other measures provided under these HCPs between the two scenarios measured the species covered under the MSCP in the are expected to protect the essential net change in economic activity Salt Creek/Otay River area. Therefore, as habitat lands designated as critical attributable to the designation of critical one of the covered species, Deinandra habitat in this rule. If an HCP that habitat. The categories of potential costs conjugens played a minor role in the address Deinandra conjugens as a considered in the analysis included the recommended project modifications. covered species is ultimately approved, costs associated with (1) Conducting Further, because of the linear nature of

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the pipeline project, direct impacts to certifying that a rule will not have a Federal involvement and so will not be sanding plants were avoided. significant economic impact on a affected by critical habitat designation. Nevertheless, specific project substantial number of small entities. In estimating the numbers of small modifications (i.e., flagging of additional SBREFA also amended the RFA to entities potentially affected, we also 200 feet of habitat) would not be require a certification statement. We are considered whether their activities have required absent critical habitat hereby certifying that this rule any Federal involvement. Designation of designation. Therefore, the final designating critical habitat for critical habitat only has the potential to addendum to the economic analysis Deinandra conjugens will not have a affect activities conducted, funded, or conservatively estimates that all significant economic impact on a permitted by Federal agencies. In areas administrative costs of the formal substantial number of small entities. where the species is present, Federal Section 7 consultation, and the costs of The following discussion explains our agencies are already required to consult the relevant project modifications, are rationale for this certification. with us under section 7 of the Act on attributable to the critical habitat Small entities include small activities that they fund, permit, or designation for Deinandra conjugens. organizations, such as independent non- implement that may affect Deinandra A more detailed discussion of our profit organizations, small governmental conjugens. Federal agencies must also analyses are contained in the July 13, jurisdictions, including school boards consult with us if their activities may 2002, Draft Economic Analysis of and city and town governments that affect designated critical habitat. Some Proposed Critical Habitat Designation serve fewer than 50,000 residents, as kinds of activities are unlikely to have for the Otay Tarplant (Industrial well as small businesses (13 CFR any Federal involvement and so will not Economics, Inc. 2002a) and the 121.201). Small businesses include be affected by critical habitat Addendum to Economic Analysis of manufacturing and mining concerns designation. Activities with Federal Critical Habitat Designation for the Otay with fewer than 500 employees, involvement that may require Tarplant (Industrial Economics, Inc. wholesale trade entities with fewer than consultation regarding Deinandra 2002b). Both documents are included in 100 employees, retail and service conjugens and its critical habitat the supporting documentation for this businesses with less than $5 million in include: Regulation of activities rulemaking and available for inspection annual sales, general and heavy affecting waters of the United States by at the Carlsbad Fish and Wildlife Office construction businesses with less than the U.S. Army Corps of Engineers under (refer to ADDRESSES section). $27.5 million in annual business, section 404 of the Clean Water Act; management activities carried out by the special trade contractors doing less than Required Determinations Service on National Wildlife Refuge $11.5 million in annual business, and lands; and, road construction, Regulatory Planning and Review agricultural businesses with annual maintenance, and right of way sales less than $750,000. To determine In accordance with Executive Order designations that are authorized, if potential economic impacts to these 12866, this document is a significant funded, or carried out by a Federal small entities are significant, we rule and was reviewed by the Office of agency. As required under section consider the types of activities that Management and Budget (OMB), as 4(b)(2) of the Act, we conducted an might trigger regulatory impacts under OMB determined that this rule may analysis of the potential economic this rule as well as the types of project raise novel legal or policy issues. As impacts of this critical habitat required by E.O. 12866, we have modifications that may result. In designation. In the analysis, we found provided a copy of the rule, which general, the term ‘‘significant economic that the future section 7 consultations describes the need for this action and impact’’ is meant to apply to a typical resulting from the listing of Deinandra how the designation meets that need, small business firm’s business conjugens and the proposed designation and the economic analysis, which assess operations. of critical habitat could potentially the costs and benefits of this critical To determine if the rule would affect impose total economic costs for habitat designation, to OMB for review. a substantial number of small entities, consultations and modifications to we consider the number of small projects to range between approximately Regulatory Flexibility Act (5 U.S.C. 601 entities affected within particular types et seq.) $2.8 million to $2.9 million over the of economic activities (e.g., housing next 10-year period. Public comment on Under the Regulatory Flexibility Act development, grazing, oil and gas the draft economic analysis led to a (5 U.S.C. 601 et seq., as amended by the production, timber harvesting, etc.). We revision of third party cost estimates Small Business Regulatory Enforcement apply the ‘‘substantial number’’ test that would result from section 7 Fairness Act (SBREFA) of 1996), individually to each industry to consultations. The changes in cost whenever an agency is required to determine if certification is appropriate. estimates are discussed and reflected in publish a notice of rulemaking for any A ‘‘substantial number’’ of small entities the Addendum to the Draft Economic proposed or final rule, it must prepare is more than 20 percent of those small Impact Analysis of Critical Habitat and make available for public comment entities affected by the regulation, out of Designation for the Otay Tarplant a regulatory flexibility analysis that the total universe of small entities in the (Industrial Economics, Inc. 2002), where describes the effects of the rule on small industry or, if appropriate, industry we found that the future section 7 entities (i.e., small businesses, small segment. In some circumstances, consultations resulting from the listing organizations, and small government especially with proposed critical habitat of Deinandra conjugens and the jurisdictions). However, no regulatory designations of very limited extent, we proposed designation of critical habitat flexibility analysis is required if the may aggregate across all industries and could potentially impose total economic head of the agency certifies the rule will consider whether the total number of costs for consultations and not have a significant economic impact small entities affected is substantial. In modifications to projects in the range of on a substantial number of small estimating the numbers of small entities between approximately $3.2 million to entities. SBREFA amended the potentially affected, we also consider $4.0 million over the next 10-year Regulatory Flexibility Act (RFA) to whether their activities have any period. require Federal agencies to provide a Federal involvement; some kinds of As stated in the Addendum, income statement of the factual basis for activities are unlikely to have any from construction, transportation and

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public utilities, and real estate in San and Wildlife Office (see ADDRESSES Small Government Agency Plan is not Diego County for 2000 was about $8.8 section). required. Small governments will be billion. Assuming that each of the In summary, we have considered affected only to the extent that Federal anticipated section 7 consultations whether this rule could result in agencies funding, permitting, or occurs in the same year, as opposed to significant economic effects on a authorizing other activities must ensure occurring throughout the 10-year substantial number of small entities. We that their actions will not adversely timeframe used in the draft economic have determined, for the above reasons, affect the critical habitat. However, as analysis, the estimated section 7 costs that it will not affect a substantial discussed above, these actions are associated with the listing of Deinandra number of small entities. Therefore, we currently subject to equivalent conjugens and proposed designation of are certifying that the designation of restrictions through the listing critical habitat represent approximately critical habitat for Deinandra conjugens protections of the species, and no 0.03 percent of the total value of these will not have a significant economic further restrictions are anticipated in economic activities annually. Further, impact on a substantial number of small areas of occupied designated critical the section 7 costs attributable solely to entities. Accordingly, a regulatory habitat. (b) For the reasons described in the critical habitat represent 0.0 percent of flexibility analysis is not required. economic analysis and this final rule, the annual total value of the economic Small Business Regulatory Enforcement this rule will not produce a Federal activities. Fairness Act (5 U.S.C. 804(2)) mandate on State, local, or Tribal Based on the past consultation history OMB’s Office of Information and governments of $100 million or greater of Deinandra conjugens, the economic Regulatory Affairs has determined that in any year. The designation of critical analysis anticipated that future section this rule is not a major rule under 5 habitat imposes no obligations on State 7 consultations could potentially affect U.S.C. 804(2), the Small Business or local governments. Therefore, it is not small businesses associated with Regulatory Enforcement Fairness Act. In a ‘‘significant regulatory action’’ under residential development. To be the economic analysis, we determined the Unfunded Mandates Reform Act. whether designation of critical habitat conservative (i.e., more likely to Takings overstate impacts than understate them), would cause (a) Any effect on the the economic analysis assumed that a economy of $100 million or more, (b) In accordance with Executive Order unique company will undertake each of any increases in costs or prices for 12630 (‘‘Government Actions and the consultations forecasted in a given consumers, individual industries, Interference with Constitutionally year, and so the number of businesses Federal, State, or local government Protected Private Property Rights’’), we affected is equal to the total annual agencies, or geographic regions, or (c) have analyzed the potential takings number of consultations projected in the any significant adverse effects on implications of designating economic analysis. There are competition, employment, investment, approximately 2,560 ha (6,330 ac) of approximately 478 residential productivity, innovation, or the ability land in San Diego County, California, in development companies in San Diego of U.S.-based enterprises to compete three units of critical habitat for Deinandra conjugens. The takings County, 414 of which are small with foreign-based enterprises. Refer to implications assessment concludes that businesses. One developer, McMillin- the final economic analysis for a this rule does not pose significant Rolling Hills Ranch, LLC was identified discussion of the effects of this takings implications. as having a Federal nexus and having determination. the potential of being affected by section Executive Order 13211 Federalism 7 implementation for Deinandra On May 18, 2001, the President issued In accordance with Executive Order conjugens. McMillin-Rolling Hills Executive Order 13211, which applies 13132, this rule does not have Ranch, LLC, owner of the Rolling Hills to regulations that significantly affect significant Federalism effects. A Ranch property, has completed a section energy supply, distribution, and use. Federalism Assessment is not required. 7 consultation with regard to its Executive Order 13211 requires agencies In keeping with Department of the application to the U.S. Army Corps of to prepare Statements of Energy Effects Interior policy, we requested Engineers for a permit under section 404 when undertaking certain actions. The information from, and coordinated the of the Clean Water Act and has primary land uses within designated development of this critical habitat experienced costs associated with critical habitat for Deinandra conjugens designation with, appropriate State project modifications. Because it is include residential development, road natural resources agencies in California. anticipated that only one developer will construction activities, and National We will continue to coordinate any be impacted by the Deinandra Wildlife Refuge operations. No future changes in the designation of conjugens critical habitat designation, significant energy production, supply, critical habitat for Deinandra conjugens less than one percent of small and distribution facilities are included with the appropriate State agencies. The development companies are potentially within designated critical habitat. designation of critical habitat for affected. Because this is less than the 20 Therefore, this action is not a significant Deinandra conjugens imposes few, if percent threshold that would be action affecting energy production, any, additional restrictions to those considered ‘‘substantial,’’ the analysis supply, and distribution facilities, and currently in place and therefore has confirms that this designation will not no Statement of Energy Effects is little incremental impact on State and affect a substantial number of small required. local governments and their activities. entities. The draft economic analysis The designation may provide some and final addendum contain the factual Unfunded Mandates Reform Act (2 benefit to these governments in that the bases for this certification and contain U.S.C. 1501 et seq.) areas essential to the conservation of the an analysis of the potential economic In accordance with the Unfunded species are more clearly defined and the effects of this designation. Copies of Mandates Reform Act (2 U.S.C. 1501 et primary constituent elements of the these documents are in the supporting seq.): habitat necessary to the conservation of record for the rulemaking and are (a) This rule will not ‘‘significantly or the species are specifically identified. available at the Service’s Carlsbad Fish uniquely’’ affect small governments. A While this definition and identification

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does not alter where and what federally National Environmental Policy Act References Cited sponsored activities may occur, it may We have determined that we do not A complete list of all references cited assist these local governments in long- in this final rule is available upon range planning, rather than waiting for need to prepare an Environmental request from the Carlsbad Fish and case-by-case section 7 consultations to Assessment or an Environmental Impact Wildlife Office (see ADDRESSES section). occur. Statement as defined by the National Environmental Policy Act of 1969, in Author Civil Justice Reform connection with regulations adopted The primary authors of this final rule In accordance with Executive Order pursuant to section 4(a) of the Act, as 12988, the Department of the Interior’s are staff at the Carlsbad Fish and amended. We published a notice Wildlife Office (see ADDRESSES section). Office of the Solicitor has determined outlining our reasons for this that this rule does not unduly burden determination in the Federal Register List of Subjects in 50 CFR Part 17 the judicial system and meets the on October 25, 1983 (48 FR 49244). This requirements of sections 3(a) and 3(b)(2) Endangered and threatened species, determination does not constitute a of the Order. We are designating critical Exports, Imports, Reporting and major Federal action significantly habitat in accordance with the recordkeeping requirements, provisions of the Act, as amended. The affecting the quality of the human Transportation. environment. rule uses standard property descriptions Regulation Promulgation and identifies the primary constituent Government-to-Government Accordingly, we amend part 17, elements within the designated areas to Relationship With Tribes assist the public in understanding the subchapter B of chapter I, title 50 of the habitat needs that are essential for the In accordance with the President’s Code of Federal Regulations as set forth conservation of Deinandra conjugens. memorandum of April 29, 1994, below: We have made every effort to ensure ‘‘Government-to-Government Relations PART 17—[AMENDED] that the final determination contains no with Native American Tribal drafting errors, provides clear standards, Governments’’ (59 FR 22951), Executive 1. The authority citation for part 17 simplifies procedures, reduces burdens, Order 13175, and the Department of the continues to read as follows: and is clearly written, such that the risk Interior’s manual at 512 DM 2, we of litigation is minimized. Authority: 16 U.S.C. 1361–1407; 16 U.S.C. readily acknowledge our responsibility 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Paperwork Reduction Act of 1995 (44 to communicate meaningfully with 625, 100 Stat. 3500; unless otherwise noted. U.S.C. 3501 et seq.) federally recognized Tribes on a 2. In § 17.12(h), remove the entry for government-to-government basis. We This rule does not contain any new Hemizonia conjugens and add the collections of information that require are not aware of any Tribal lands following in alphabetical order under approval by the OMB under the essential for the conservation of ‘‘FLOWERING PLANTS’’ to the List of Paperwork Reduction Act. An agency Deinandra conjugens. Therefore, the Endangered and Threatened Plants to may not conduct or sponsor, and a designated critical habitat for Deinandra read as follows: person is not required to respond to, a conjugens does not contain any Tribal collection of information unless it lands or lands that we have identified § 17.12 Endangered and threatened plants. displays a currently valid OMB control as impacting Tribal trust resources. * * * * * number. (h) * * *

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

FLOWERING PLANTS

******* Deinandra Otay tarplant ...... U.S.A. (CA), Mexico Asteraceae—Sun- T 649 17.96(a) NA (=Hemizonia) flower. conjugens.

*******

3. In § 17.96, amend paragraph (a) by Family Asteraceae: Deinandra not limited to, soils with a high clay adding an entry for Deinandra conjugens (Otay tarplant) content (generally greater than 25 conjugens (Otay tarplant) in percent) (or clay intrusions or lenses) alphabetical order under Asteraceae to (1) Critical habitat units are depicted that are associated with grasslands, read as follows: for San Diego County, California, on the open coastal sage scrub, or maritime maps below. succulent scrub communities between § 17.96 Critical habitat—plants. (2) The primary constituent elements 25 m (80 ft) and 300 m (1,000 ft) (a) Flowering plants. of critical habitat for Deinandra elevation. These plant communities conjugens are those habitat components contain natural openings that provide * * * * * that are essential for the primary habitat for Deinandra conjugens life- biological needs of the species. Based on cycle, and pollen and seed dispersal our current knowledge of this species, agents. the primary constituent elements for (3) Critical habitat does not include Deinandra conjugens consist of, but are non-Federal lands covered by a legally

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operative Habitat Conservation Plan roads, and other landscaped areas not unless they affect the species or primary issued under section 10(a)(1)(B) of the containing primary constituent constituent elements in adjacent critical Act in which Deinandra conjugens is a elements, are not likely to contain the habitat. covered species on or before the primary constituent elements for (i) Note: Index map follows: publication of this final rule. Deinandra conjugens. Federal actions (4) Existing features and structures, limited to those areas, therefore, would such as buildings, paved or unpaved not trigger a section 7 consultation,

(5) Unit 1: Sweetwater/Proctor Valley, SDNWR boundary returning to the point boundary; thence east following the San Diego County, California. of beginning on the SDNWR boundary CCVPD boundary to UTM NAD27 x- (i) Unit 1a: From USGS 1:24,000 at UTM x-coordinate 505100. coordinate 505900; thence north quadrangle map Jamul Mountains, (ii) Unit 1b: From USGS 1:24,000 following UTM NAD27 coordinates beginning at the SDNWR boundary at quadrangle maps National City and 505900, 3615900; 506000, 3615900; UTM NAD27 x-coordinate 505100; Jamul Mountains, beginning at the 506000, 3616000; 506700, 3616000, thence south following UTM NAD27 Sweetwater Reservoir at UTM NAD27 y- 506700, 3616100; thence east to the coordinates (E, N): 505100, 3620400; coordinate 3618500; thence east and SDNWR boundary at UTM NAD27 y- 505000, 3620400; 505000, 3620200; following UTM NAD27 coordinates coordinate 3616100; thence east 504900, 3620200; 504900, 3620100; 503000, 3618500; 503000, 3616000; following the SDNWR boundary to UTM 504800, 3620100; 504800, 3620000; 503100, 3616000; 503100, 3615400; NAD27 x-coordinate 507200; thence 504700, 3620000; 504700, 3619900; 503200, 3615400; 503200, 3615300; north following UTM NAD27 504600, 3619900; 504600, 3619700; 503600, 3615300; 503600, 3615400; coordinates 507200, 3616200; 507400, 504500, 3619700; 504500, 3619600; 503700, 3615400; 503700, 3615600; 3616200; 507400, 3616300; 507500, 504400, 3619600; 504400, 3619500; 503900, 3615600; 503900, 3615800; 3616300; 507500, 3616400; 507600, 504300, 3619500; 504300, 3619400; thence east to the Otay Water District 3616400; thence north to the County of 504100, 3619400; 504100, 3619300; (OWD) boundary at UTM NAD27 y- San Diego Major Amendment (CSDMjA) 504000, 3619300; thence south to the coordinate 3615800; thence north boundary at UTM NAD27 x-coordinate SDNWR boundary at UTM x-coordinate following the OWD boundary to the City 507600; thence east following the 504000; thence south following the of Chula Vista Preserve Design (CCVPD) CSDMjA boundary to the SDNWR

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boundary; thence south following the OWD boundary to UTM NAD27 x- south following the Sweetwater SDNWR boundary to the CSDMjA coordinate 504600; thence north Reservoir shoreline (SRS) to UTM boundary; thence south following the following UTM NAD27 coordinates NAD27 x-coordinate 499400; thence CSDMjA boundary to UTM NAD27 x- 504600, 3614600; 504500, 3614600; north following UTM NAD27 coordinate 506100; thence south 504500, 3615500; 504400, 3615500; coordinates 499400, 3617000; 499400, following UTM NAD27 coordinates 504400, 3615700; 504300, 3615700; 3617100; 499300, 3617100; 499300, 506100, 3613100; 506000, 3613100; 504300, 3615800; 504200, 3615800; 3617200; 499200, 3617200; 499200, thence north to the City of Chula Vista 504200, 3615700; 504100, 3615700; 3617000; thence east to the SRS at UTM (CCV) boundary at UTM NAD27 x- 504100, 3615200; 504000, 3615200; NAD27 y-coordinate 3617000; thence coordinate 506000; thence northwest 504000, 3615100; 503900, 3615100; south following the SRS back to the following the CCV boundary south to 503900, 3614900; 503800, 3614900; point of beginning at UTM NAD27 y- UTM NAD27 x-coordinate 505700; 503800, 3614800; 503900, 3614800; coordinate 3618500; excluding lands thence north to the CCVPD boundary at 503900, 3614600; 503800, 3614600; bounded by the CCVPD boundary at UTM x-coordinate 505700: thence 503800, 3614400; 503700, 3614400; UTM NAD27 x-coordinate 505800; northwest along the CCVPD boundary to thence south to the OWD boundary at thence east following the CCVPD the City of Chula Vista Major UTM NAD27 x-coordinate 503700; boundary to UTM NAD27 x-coordinate Amendment boundary (CCVMjA); thence west following the OWD 506100; thence north and following thence north along the CCVMjA boundary to the Multiple Habitat UTM NAD27 coordinates 506100, boundary to the CCVPD boundary; Planning Area (MHPA) boundary; 3614700; 505700, 3614700; 505700, thence north and east along the CCVPD thence west following the MHPA to the 3615300; 505800, 3615300; thence north boundary to the CCVMjA boundary; SDNWR boundary; thence south returning to the point of beginning on thence east along the CCVMjA boundary following the SDNWR boundary to UTM the CCVPD boundary at UTM NAD27 x- to the CCVPD boundary; thence north NAD27 y-coordinate 3616100; thence coordinate 505800; excluding lands and west along the CCVPD boundary to west following UTM NAD27 bounded by the following UTM NAD27 the MSCP Neutral Area boundary coordinates 501200, 3616100; 501200, coordinates 499800, 3616000; 500000, (MNA); thence south and back north 3615800; 500800, 3615800; thence north 3616000; 500000, 3615800; 499900, along the MNA boundary to UTM to the Sweetwater Authority Water 3615800; 499900, 3615700; 499800, NAD27 y-coordinate 3614700; thence District (SWAWD) boundary at UTM 3615700; 499800, 3616000; excluding east along UTM NAD27 y-coordinate to NAD27 x-coordinate 500800; thence the proposed State Route 125 easement. the MNA boundary; thence south along west following the SWAWD boundary (iii) Unit 1c and d: From USGS the MNA boundary to the CCVPD to the County of San Diego Minor 1:24,000 quadrangle map Jamul boundary; thence following the CCVPD Amendment (CSDMnA) boundary; Mountains, the lands bounded by the boundary to the MNA boundary; thence thence west following the CSDMnA CCVPD boundary at Horseshoe Bend south along the MNA boundary to the boundary to the SWAWD boundary; and Gobblers Knob. CCVPD boundary; thence west along the thence west following the SWAWD (iv) Unit 1e: From USGS 1:24,000 CCVPD boundary to UTM NAD27 y- boundary to approximately UTM quadrangle map Jamul Mountains, the coordinate 3621500; thence west along NAD27 coordinates 5014000, 3618650 lands bounded by the MNA boundary at UTM y-coordinate to the OWD where the SWAWD meets the Rolling Hills Ranch. boundary; thence south following the Sweetwater Reservoir shoreline; thence (v) Note: Unit 1 map follows:

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(6) Unit 2: Chula Vista, San Diego Rice Canyon and between UTM NAD27 beginning at the CCV boundary at UTM County, California. x-coordinates 496900 and 499100. NAD27 x-coordinate 498600; thence (i) Unit 2a: From USGS 1:24,000 (iv) Unit 2e: From USGS 1:24,000 south following UTM NAD27 quadrangle maps National City, the quadrangle maps National City and coordinates 498600, 3607300; 498400, lands bounded by the CCVPD boundary Imperial Beach, the lands bounded by 3607300; 498400, 3607200; 498300, in Long Canyon and between UTM the CCVPD boundary in Telegraph 3607200; 498300, 3606900; 498500, NAD27 coordinates 497900 and 499700. Canyon and between UTM NAD27 x- 3606900; thence south to the CCV (ii) Unit 2b and c: From USGS coordinates 498100 and 499300. boundary at UTM NAD27 x-coordinate 1:24,000 quadrangle map National City, (v) Unit 2f: and h: From USGS 498500; thence west following the CCV the lands bounded by the CCVPD 1:24,000 quadrangle map Imperial boundary to the CCVPD boundary; boundary south of Otay Lakes Road and Beach, the lands bounded by the CCVPD thence west following the CCVPD between UTM NAD27 x-coordinates boundary in Poggi Canyon and between boundary to the CCV boundary; thence 497300 and 499500. UTM NAD27 x-coordinates 497400 and east returning to the point of beginning (iii) Unit 2d: From USGS 1:24,000 499000. on the CCV boundary at UTM NAD27 x- quadrangle map National City, the lands (vi) Unit 2g: From USGS 1:24,000 coordinate 498600. bounded by the CCVPD boundary in quadrangle map Imperial Beach, (vii) Note: Unit 2 map follows:

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(7) Unit 3: Otay Valley/Big Murphy’s, 3605300; 502800, 3605300; 502800, UTM NAD27 y-coordinate 3604700; San Diego County, California. 3605400; thence east to the CCVPD thence north along the CCV boundary to (i) Unit 3a: From USGS 1:24,000 boundary at UTM NAD27 y-coordinate the CCVPD boundary; thence east quadrangle maps Imperial Beach, Otay 3605400; thence east following the following the CCVPD boundary to UTM Mesa, and Jamul Mountains beginning CCVPD boundary to UTM NAD27 x- NAD27 x-coordinate 501300; thence on the CCVPD boundary at UTM NAD27 coordinate 504500; thence north north following UTM NAD27 x-coordinate 499900; thence east following UTM NAD27 coordinates coordinates 501300, 3605300; 501400, following the CCVPD boundary to UTM 504500, 3606200; 504800, 3606200; 3605300; thence north to the CCVPD NAD27 x-coordinate 506400; thence 504800, 3606300; 505000, 3606300; boundary at UTM NAD27 x-coordinate south following the UTM NAD27 505000, 3606400; 505100, 3606400; 501400; thence north following the coordinates 506400, 3607200; 506300, 505100, 3606500; 505200, 3606500; CCVPD boundary to UTM NAD27 x- 3607200; 506300, 3607100; 505600, 505200, 3606600; 505700, 3606600; coordinate 501600; thence north 3607100; 505600, 3606900; 505300, 505700, 3606500; 505800, 3606500; following UTM NAD27 coordinates 3606900; 505300, 3606700; 505100, 505800, 3606600; 506300, 3606600; 501600, 3605900; 501500, 3605900; 3606700; 505100, 3606600; 504900, 506300, 3606800; 506600, 3606800; 501500, 3606000; 501300, 3606000; 3606600; 504900, 3606500; 504800, 506600, 3606900; thence east to the 501300, 3606100; thence north to the 3606500; 504800, 3606600; 504700, CCVPD boundary at UTM NAD27 y- CCVPD boundary at UTM NAD27 x- 3606600; 504700, 3606700; 504500, coordinate 3606900; thence south coordinate 501300; thence east 3606700; 504500, 3606600; 504400, following the CCVPD boundary to the following the CCVPD boundary to UTM 3606600; 504400, 3606500; 504300, CCV boundary; thence west following NAD27 y-coordinate 3605700; thence 3606500; 504300, 3606300; thence west the CCV boundary to the CCVPD east following UTM NAD27 coordinates to the CCVPD boundary at UTM y- boundary; thence north following the 500600, 3605700; 500600, 3605800; coordinate 3606300; thence north CCVPD boundary to the UTM NAD27 y- 500100, 3605800; 500100, 3605900; following the CCVPD boundary to UTM coordinate 3604700; thence west 499900, 3605900; thence north NAD27 x-coordinate 502400; thence following UTM NAD27 coordinates returning to the point of beginning on south following UTM NAD27 500400, 3604700; 500400, 3604800; the CCVPD boundary at UTM NAD27 x- coordinates 502100, 3605600; 502100, 500100, 3604800; 500100, 3604700; coordinate 499900; excluding the 3605500; 501900, 3605500; 501900, thence west to the CCV boundary at proposed State Route 125 easement.

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(ii) Unit 3b: From USGS 1:24,000 south following the CSDMjA boundary 3603400; 508000, 3603600; 508100, quadrangle map Otay Mesa, the to UTM NAD27 x-coordinate 509200; 3603600; 508100, 3603700; 508200, southern half of the Immigration and thence south following UTM NAD27 3603700; 508200, 3603800; 508400, Nationalization Service land at Brown coordinates 509200, 3602900; 509000, 3603800; 508400, 3604000; returning to Field. 3602900; 509000, 3602800; 509100, the point of beginning on the CSDMjA (iii) Unit 3c: From USGS 1:24,000 3602800; 509100, 3602700; 508200, boundary at UTM NAD27 y-coordinate quadrangle map Otay Mesa, beginning 3602700; 508200, 3603200; 508100, 3604000. on the CSDMjA boundary at UTM 3603200; 508100, 3603400; 508000, NAD27 y-coordinate 3604000; thence (iv) Note: Unit 3 map follows:

* * * * * Dated: November 29, 2002. Craig Manson, Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 02–30890 Filed 12–9–02; 8:45 am] BILLING CODE 4310–55–P

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