Monday, April 30, 2001
Part II
Department of the Interior Fish and Wildlife Service
50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Final Determination of Critical Habitat for the Bay Checkerspot Butterfly (Euphydryas editha bayensis); Final Rule
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DEPARTMENT OF THE INTERIOR authorized, or carried out by any populations commonly known as the Federal agency. Section 4 of the Act bay checkerspot and several populations Fish and Wildlife Service requires us to consider economic and south of Santa Clara County whose other impacts of specifying any subspecific status has been uncertain. If 50 CFR Part 17 particular area as critical habitat. We this expanded subspecific assignment is RIN 1018–AH61 solicited data and comments from the accepted by the scientific community, it public on all aspects of the proposed would represent a range extension for Endangered and Threatened Wildlife rule and economic analysis. We revised the bay checkerspot. Until such time as and Plants; Final Determination of the proposal to incorporate or address we make any new or revised Critical Habitat for the Bay new information received during the determination on the taxonomy, in this Checkerspot Butterfly (Euphydryas comment periods. final rule, we treat the threatened bay editha bayensis) DATES: This rule becomes effective on checkerspot as occurring in San May 30, 2001. Francisco Bay area counties, notably the AGENCY: Fish and Wildlife Service, ADDRESSES: counties of San Mateo and Santa Clara, Interior. Comments and materials received, as well as supporting as described in the final rule for the ACTION: Final rule. documentation used in the preparation subspecies (52 FR 35378). The bay checkerspot formerly of this final rule, will be available for SUMMARY: We, the U.S. Fish and occurred around San Francisco Bay, public inspection, by appointment, Wildlife Service (Service), designate from Twin Peaks and San Bruno during normal business hours at the critical habitat for the bay checkerspot Mountain (west of the Bay) and Contra Sacramento Fish and Wildlife Office, butterfly (Euphydryas editha bayensis) Costa County (east of the Bay), south U.S. Fish and Wildlife Service, 2800 (bay checkerspot), pursuant to the through Santa Clara County. Before the Cottage Way, Room W2605, Sacramento, Endangered Species Act of 1973, as introduction of invasive Eurasian California 95825. amended (Act). A total of approximately grasses and other weeds in the 1700s, its 9,673 hectares (23,903 acres) in San FOR FURTHER INFORMATION CONTACT: distribution may have been wider Mateo and Santa Clara counties, David Wright or Chris Nagano at the (Service 1998). In the decades preceding California, is designated as critical address above (telephone 916/414–6600; listing, the decline of the bay habitat. facsimile 916/414–6712). checkerspot was primarily attributed to Critical habitat identifies specific SUPPLEMENTARY INFORMATION: loss of habitat and fragmentation of areas that have the physical and Background habitat due to increasing urbanization. biological features that are essential to Drought and other extremes of weather the conservation of a listed species, and The bay checkerspot is a medium- have also been implicated in bay that may require special management sized butterfly with a wingspan of about checkerspot population declines considerations or protection. The 5 centimeters (2 inches (in.)). The (Ehrlich et al. 1980; Service 1998). primary constituent elements for the bay forewings have black bands along all the Recent research has identified excess checkerspot are one or more of the veins on the upper wing surface, nitrogen deposition from polluted air as following: stands of Plantago erecta, contrasting sharply with bright red, a threat to bay checkerspot habitats, due Castilleja exserta, or Castilleja yellow, and white spots. The bay to its fertilizing effect enhancing the densiflora; spring flowers providing checkerspot is 1 of about 20 subspecies growth of invasive nonnative plants nectar; pollinators of the bay of Euphydryas editha (Miller and Brown even in serpentine soil areas (Weiss checkerspot’s food and nectar plants; 1981), and differs in physical 1999). soils derived from serpentinic rock; and appearance from other subspecies in a Habitat of the bay checkerspot most space for dispersal between habitable variety of size, wing coloration, larval, commonly is found on shallow, areas. In addition, the following are and pupal characteristics (Howe 1975; serpentine-derived or similarly each primary constituent elements to be Mattoni et al. 1997). It differs from droughty or infertile soils, which conserved when present in combination LuEsther’s checkerspot (Euphydryas support the butterfly’s larval food plants with one or more of the primary editha luestherae), (a later-flying, and also includes nectar sources for constituent elements above: areas of Pedicularis-feeding subspecies of Inner adults that may also occur on other open grassland, topography with varied Coast Range chaparral in central adjacent soil types. Serpentine soils are slopes and aspects providing surface California), by being darker, and lacking high in magnesium and low in calcium, conditions with warm and moderate to a relatively uninterrupted red band and are a strong indicator of habitat cool temperatures during sunny spring demarcating the outer third of the wing. value for the bay checkerspot. The days, stable holes or cracks in the soil The black banding on the forewings of primary larval host plant of the bay and surface rocks or rock outcrops, the bay checkerspot gives a more checkerspot is Plantago erecta (dwarf wetlands providing moisture during checkered appearance than the smaller plantain), an annual, native plantain. times of spring drought. quino checkerspot butterfly The bay checkerspot usually is found In addition, the following are each (Euphydryas editha quino) of southern associated with Plantago erecta in primary constituent elements to be California (Service 1998). grasslands on serpentine soils, such as conserved when present in combination Recent publications have advocated soils in the Montara series. In Santa with one or more of the primary renaming the bay checkerspot, Clara County, the Inks and Climara soil constituent elements above: areas of Euphydryas editha bayensis, as series are related soils and often have open grassland, topography with varied Euphydryas editha editha for reasons of inclusions of Montara (U.S. Soil slopes and aspects, stable holes or historical precedence (Mattoni et al. Conservation Service 1974). Henneke cracks in the soil and surface rocks or 1997; Emmel et al. 1998). Mattoni and and other serpentine soils also occur rock outcrops, and wetlands providing co-authors (1997) have also suggested within the range of the bay checkerspot. moisture during times of spring drought. that Euphydryas editha editha ranges Populations of the bay checkerspot Section 7 of the Act prohibits from the San Francisco Bay area south formerly occurred on San Bruno destruction or adverse modification of to northern Santa Barbara County in Mountain and other locations with soils critical habitat by any activity funded, California, and includes both the that are not serpentine. We believe this
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indicates that, with otherwise suitable temporary cessation of development) in accuracy predicted satellite habitat habitat conditions, the bay checkerspot mid to late spring. The postdiapause patches at a distance greater than 7 to is capable of living in nonserpentine larvae emerge after winter rains 8 kilometers (4 to 5 miles) from a soil areas. stimulate germination of Plantago, and primary source population were not Serpentine soils are well known for feed and bask until they are large likely to support populations (Harrison harboring rare and endemic plant enough to pupate and emerge as adults et al. 1988). species, and because the bay (Service 1998). If insufficient food is The known range of the bay checkerspot inhabits serpentine areas, available, a post-diapause checkerspot checkerspot is now reduced to Santa our critical habitat designation for the larva can re-enter diapause and emerge Clara and San Mateo counties, and it is bay checkerspot overlaps habitat of again one year or more later (Singer and patchily distributed in these locales. several federally listed plant species: the Ehrich 1979; Mattoni et al. 1997). Studies of the bay checkerspot have San Mateo thornmint (Acanthomintha Most Euphydryas editha subspecies described its distribution as an example obovata ssp. duttonii), Santa Clara exhibit generally sedentary behavior, of a metapopulation (see literature cited Valley dudleya (Dudleya setchellii), with adults frequently remaining in the in Service 1998). A metapopulation is a Coyote ceanothus (Ceanothus ferrisae), same habitat patch in which they group of spatially separated populations Tiburon paintbrush (Castilleja affinis developed as larvae (Ehrlich 1961, 1965; that can occasionally exchange ssp. neglecta), fountain thistle (Cirsium Boughton 1999, 2000). Female bay dispersing individuals. The populations fontinale var. fontinale), Marin dwarf checkerspots were found to be more in a metapopulation are usually thought flax (Hesperolinon congestum), white- likely to emigrate than males (Ehrlich et of as undergoing interdependent rayed pentachaeta (Pentachaeta al. 1984). When female Euphydryas extinction and colonization, where bellidiflora), and Metcalf Canyon editha butterflies fail to encounter individual populations may go extinct, jewelflower (Streptanthus albidus ssp. preferred host plants, the likelihood of but later recolonize from another albidus) (Service 1998). However, bay emigration to other suitable habitat population. That is, although member checkerspot critical habitat does not patches increases (Thomas and Singer populations may change in size include all the habitat essential to any 1987). Adult dispersal by the bay independently, their probabilities of of these plant species. Bay checkerspot checkerspot is typically less than 150 existing at a given time are not critical habitat is also coincident with meters (490 feet) between recaptures independent of one another because habitat for a number of rare plants and (Ehrlich 1961, Ehrlich 1965, Gilbert and they are linked by processes of animals that are not federally listed Singer 1973). However, Harrison (1989) extinction and mutual recolonization, (Service 1998). recaptured bay checkerspots greater processes that occur on the order of In many years, bay checkerspot larvae than 1 kilometer (0.6 mile) from the every 10 to 100 generations (Harrison et may use a secondary host plant species, point of release in 5 percent of cases. al. 1988). The ability and propensity of for instance, when dwarf plantain dries Long-distance dispersal in bay larvae to undergo multiple-year up while prediapause larvae are still checkerspot butterflies has been diapause in the field, and survival rates feeding. Castilleja (Orthocarpus) documented as far as 7.6 km (4.7 miles) during repeated diapause, all currently densiflora (purple owl’s-clover) and (D. Murphy pers. comm.), 5.6 km (3.5 unquantified, will also affect the Castilleja exserta (Orthocarpus miles) (1 male), and 3 km (2 miles) (1 persistence time of local populations. purpurascens) (exserted paintbrush) are female) (Harrison 1989). The butterflies Bay checkerspot populations may also known secondary host plants that often are likely to be capable of dispersing exhibit ‘‘’pseudo-extinction,’’’ where the remain edible later in the season than even longer distances. In all dispersal species is not found, but nonetheless dwarf plantain. Bay checkerspot adults observations and experiments, long- continues to inhabit a site and reappears also visit flowers for nectar. Nectar distance movements are hard to detect, in a subsequent year. Since the early plants commonly visited include and thus their frequency and stages of the bay checkerspot are Lomatium spp. (desert parsley), importance are difficult to quantify. extremely difficult or impossible to Lasthenia californica (= chrysostoma) Qualitative observations suggest that locate in surveys (White 1987), the (California goldfields), Layia platyglossa bay checkerspots move readily over failure to discover caterpillars that (tidy-tips), Muilla maritima, and others. suitable grassland habitat, but are more diapause for more than 1 year may be Moderate grazing is normally reluctant to cross scrub, woodland or responsible for pseudo-extinctions. compatible with habitat for the bay other unsuitable habitat. Roads, Because of pseudo-extinction and checkerspot, since grazing can reduce especially, those traveled more heavily metapopulation dynamics, even sites the density and height of nonnative and at higher speeds, present a risk of that in some years apparently lack the plants that compete with the native death or injury to dispersing butterflies. bay checkerspot are important to the plants supporting the butterfly. Where corridors that facilitate dispersal survival and recovery of the species. The bay checkerspot’s life cycle is exist, they may support the persistence The timescale of bay checkerspot closely tied to host plant biology. Host of bay checkerspot populations. metapopulation dynamics, which plants germinate anytime from early Long-distance habitat patch includes boom and bust fluctuations of October to late December, and senesce colonization may be achieved within a site populations, effects of California’s (dry up and die) from early April to mid single season through long-distance variable climate, extirpations (loss of May. Most of the active parts of the bay dispersal of individual butterflies, or local populations) and recolonizations, checkerspot life cycle also occur during over several seasons through stepping- is on the scale of decades to centuries, this period. Adults emerge from pupae stone habitat patch colonization and much longer than typical human (a transitional stage between caterpillar dispersal events. In one study of the planning efforts. Adequacy of and adult butterfly) in early spring, and Santa Clara County bay checkerspot designated critical habitat lands for feed on nectar, mate, and lay eggs metapopulation, no colonizations of conservation of the bay checkerspot during a flight season that typically lasts unoccupied habitat patches farther than depends on long-term persistence of the for 4 to 6 weeks in the period between 4.5 kilometers (2.8 miles) from the species’ Santa Clara and San Mateo late February to early May. The eggs source population were detected over a metapopulations, through conservation hatch and the tiny larvae feed for about 10-year period (Harrison et al. 1988). A of many habitat patches and 2 to 3 weeks before entering diapause (a mathematical model of unknown opportunity for dispersal/
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recolonization /gene flow events that metapopulations will demand the Critical Habitat link populations in the protection of both presently occupied Critical habitat is defined in section 3 metapopulations. Such dispersal events habitat patches and those which may be of the Act as—(i) the specific areas must include long-distance presently unoccupied, but which can within the geographic area occupied by colonizations that are rare because they support the bay checkerspot under a species, at the time it is listed in occur during unusually favorable years certain climatic conditions.’’ accordance with the Act, on which are or sequences of years for the bay Previous Federal Action found those physical or biological checkerspot, resulting in population features (I) essential to the conservation booms and many more dispersing On October 21, 1980, we were of the species and (II) that may require butterflies. petitioned by Dr. Bruce O. Wilcox, special management consideration or Bay checkerspot populations vary Dennis D. Murphy, and Dr. Paul R. protection; and (ii) specific areas greatly from year to year. Many or most Ehrlich to list the bay checkerspot as an outside the geographic area occupied by individuals of the species live only a endangered species. We published a a species at the time it is listed, upon single year, and with high fecundity Notice of Status Review on February 13, (fertility), high mortality, and sensitivity determination that such areas are 1981 (46 FR 12214). Following our essential for the conservation of the to weather and perhaps other ecological status review, we found that listing the conditions, large population swings are species. ‘‘Conservation’’ means the use bay checkerspot was warranted but of all methods and procedures that are common for the bay checkerspot. precluded by other pending listing Fluctuations of more than 100-fold have necessary to bring an endangered actions (49 FR 2485). We proposed the species or a threatened species to the been observed. These fluctuations are bay checkerspot for listing as not always in synchrony among point at which listing under the Act is endangered with critical habitat on no longer necessary. populations at different sites. September 11, 1984 (49 FR 35665), and Weiss et al. (1988) and Murphy and Critical habitat receives protection listed the subspecies as threatened on under section 7 of the Act through the Rehm (1992) found that the populations September 18, 1987 (52 FR 35366). At of the bay checkerspot butterfly take prohibition against destruction or the time of listing, because of difficulty adverse modification of critical habitat refuge during dry years largely on cool in resolving the value of specific north- and northeast-facing serpentine with regard to actions carried out, habitats to the subspecies and assessing funded, or authorized by a Federal grassland slopes. However, they the activities being conducted in those reported that during years of above- agency. Section 7 also requires areas, we concluded that critical habitat consultation on Federal actions that are average rainfall the species expands its was not determinable. We published a population on warmer slopes, including likely to result in the destruction or Recovery Plan for Serpentine Soil adverse modification of critical habitat. more xeric south- and west-facing Species of the San Francisco Bay Area slopes. Although infrequent and short- In our regulations at 50 CFR 402.02, we (Recovery Plan) in September 1998 that term, such expansions can contribute to define destruction or adverse includes the bay checkerspot (Service the long-term metapopulation modification as ‘‘* * * the direct or 1998), as required under section 4(f) of persistence, especially for a species like indirect alteration that appreciably the Endangered Species Act of 1973, as the bay checkerspot, whose numbers are diminishes the value of critical habitat amended (Act) (16 U.S.C. 1531 et seq.). regulated more by environmental factors for both the survival and recovery of a than population density. Murphy and On June 30, 1999, the Center for listed species.’’ Such alterations White (1984) stated that long-distance Biological Diversity filed a complaint include, but are not limited to, dispersal events associated with against us challenging our critical alterations adversely modifying any of population outbreaks may contribute habitat findings for seven species, those physical or biological features that significantly to colonization or including the bay checkerspot butterfly. were the basis for determining the recolonization of unoccupied areas and On August 30, 2000, the United States habitat to be critical.’’ Aside from the hence to long-term survival of the District Court for the Northern District added protection that may be provided checkerspot butterflies. of California (Southwest Center for under section 7, the Act does not Habitat areas that appear to be low Biological Diversity v. Bruce Babbitt, et provide other forms of protection to quality or are temporarily low quality, al., CIV 99–3202 SC) ruled on several of lands designated as critical habitat. therefore, can be essential to the long- the species involved, including the bay Because consultation under section 7 of term persistence of bay checkerspot checkerspot butterfly. The court ordered the Act does not apply to activities on populations, which reside in habitats us to propose critical habitat within 60 private or other non-Federal lands that vulnerable to highly variable or days of the ruling and to finalize the do not involve a Federal nexus, critical catastrophic environmental phenomena, designation within 120 days of the habitat designation would not afford such as drought, or habitat destruction proposed designation. A subsequent any additional protections under the caused by urban development. Patches settlement agreement with the Center Act against such activities. of habitat, whether of high or marginal for Biological Diversity extended the To be included in a critical habitat quality, can serve as ‘‘stepping stones’’ date for the final decision to April 20, designation, the habitat must first be for regional metapopulations. These 2001. ‘‘essential to the conservation of the patches can facilitate gene flow between We proposed critical habitat for the species.’’ Critical habitat designations small populations and can provide bay checkerspot butterfly on October 16, identify, to the extent known using the routes for individuals to colonize 2000 (65 FR 61218). The original best scientific and commercial data surrounding habitats that have been comment period closed on December available, habitat areas that provide subject to local extinction. Loss of 15, 2000. A notice of availability for the essential life cycle needs of the species temporarily empty ‘‘stepping stone’’ draft economic analysis and reopening (i.e., areas on which are found the habitat patches would disrupt the of the public comment period was primary constituent elements, as dynamics of the entire bay checkerspot published in the Federal Register on defined at 50 CFR 424.12(b)). metapopulation. According to Murphy February 9, 2001 (66 FR 9683). The Section 4 requires that we designate (1990) ‘‘* * * the necessity of second comment period closed on critical habitat at the time of listing and protecting remnants of once extensive March 12, 2001. based on what we know at the time of
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the designation. When we designate reviewed journals, conservation plans Area Digital GeoResource (BADGER) critical habitat at the time of listing or developed by States and counties, website (http://badger.parl.com), and under short court-ordered deadlines, we scientific status surveys and studies, limited ground checking, we estimated will often not have sufficient biological assessments, unpublished the current extent of suitable breeding information to identify all areas of materials, and expert opinion or habitat. We included in critical habitat critical habitat. We are required, personal knowledge. both suitable habitat and areas that link nevertheless, to make a decision and, Habitat is often dynamic, and species suitable breeding habitat, since these thus, must base our designations on may move from one area to another over links facilitate movement of individuals what, at the time of designation, we time. Furthermore, because of the between habitat areas and are important know to be critical habitat. information available for us at the time for dispersal and gene flow and, thus, to Within the geographic area occupied of designation, we recognize that the conservation of the subspecies. For by the species, we will designate only designation of critical habitat may not the final rule, we checked the critical areas currently known to be essential. include all of the habitat areas that may habitat boundaries we proposed for the Essential areas should already have the eventually be determined to be subspecies against 1999 SPOT satellite features and habitat characteristics that necessary for the recovery of the imagery and removed identifiable are necessary to sustain the species. We species. For these reasons, critical developed areas. will not speculate about what areas habitat designations do not signal that Our 1984 proposal to list the bay might be found to be essential if better habitat outside the designation is checkerspot with critical habitat (49 FR information became available, or what unimportant or may not be required for 35665) proposed five critical habitat areas may become essential over time. If recovery. Areas outside the critical zones. Four of the five are included in the information available at the time of habitat designation will continue to be this designation, with modifications designation does not show that an area subject to conservation actions that may based on improved knowledge of the provides essential life cycle needs of the be implemented under section 7(a)(1), biology and habitat of the subspecies. species, then the area should not be and to the regulatory protections Since publication of the original included in the critical habitat afforded by the section 7(a)(2) jeopardy proposal, the fifth zone (Woodside designation. Within the geographic area standard and the take prohibitions of Zone) has been mostly converted to occupied by the species, we will not section 9 of the Act, as determined on housing. Therefore, it is not included in designate areas that do not now have the the basis of the best available the critical habitat designation. Since primary constituent elements, as information at the time of the action. We 1984, a great deal of literature on the defined at 50 CFR 424.12(b), that specifically anticipate that federally bay checkerspot butterfly, both provide essential life cycle needs of the funded or assisted projects affecting published and unpublished, has added species. listed species outside their designated to our understanding of the subspecies Our regulations state that, ‘‘The critical habitat areas may still result in (see literature cited in Service 1998; Secretary shall designate as critical jeopardy findings in some cases. Weiss 1999; Weiss and Launer 2000). habitat areas outside the geographic area Similarly, critical habitat designations Based on this expanded information and presently occupied by the species only made on the basis of the best available other information in the Recovery Plan when a designation limited to its information at the time of designation (Service 1998), we have been able to present range would be inadequate to will not control the direction and identify habitats and populations that ensure the conservation of the species’’ substance of future recovery plans, were poorly documented before the (50 CFR 424.12(e)). Accordingly, when habitat conservation plans, or other mid-1980s, and assess their significance. the best available scientific and species conservation planning efforts if Besides the four previously identified commercial data do not demonstrate new information available to these critical habitat zones, this final rule that the conservation needs of the planning efforts calls for a different identifies 11 additional habitat units species require designation of critical outcome. essential to the conservation of the bay habitat outside of occupied areas, we checkerspot, for a total of 15 critical Methods will not designate critical habitat in habitat units. Further, information areas outside the geographic area In identifying areas that are essential provided in comments on the proposed occupied by the species. to conserve the bay checkerspot, we designation and draft economic analysis Our Policy on Information Standards used the best scientific information were evaluated and taken into Under the Endangered Species Act, available. This included habitat consideration in the development of this published in the Federal Register on suitability and site-specific species final designation. July 1, 1994 (Vol. 59, p. 34271), information. We have emphasized areas identifies criteria, establishes of current and historical bay Primary Constituent Elements procedures, and provides guidance to checkerspot occurrences, especially In accordance with section 3(5)(A)(i) ensure that decisions made by the larger sites in proximity to known of the Act and regulations at 50 CFR Service represent the best scientific and occurrences. To maintain genetic and 424.12(b), in determining which areas to commercial data available. It requires demographic interchange that will help designate as critical habitat, we must Service biologists, to the extent maintain the viability of a regional consider those physical and biological consistent with the Act and with the use metapopulation, we included corridor features (primary constituent elements) of the best scientific and commercial areas that allow movement between essential to the conservation of the data available, to use primary and populations. Dispersal is a crucial species and that may require special original sources of information as the function for a species with management considerations and basis for recommendations to designate metapopulation dynamics like the bay protection. These include, but are not critical habitat. When determining checkerspot. limited to, space for individual and which areas are critical habitat, a We used data on known and historic population growth and for normal primary source of information is the locations and maps of serpentine soils behavior; food, water, or other listing package for the species. to identify potentially important areas. nutritional or physiological Additional information may be obtained Then, through the use of 1990s digital requirements; cover or shelter; sites for from a recovery plan, articles in peer- orthophotos available through the Bay breeding, reproduction, or rearing of
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offspring; and habitats that are protected area. Plantago erecta is thought to be exposures for basking, and find early- from disturbance or are representative of self-pollinating. season nectar plants on warm south-and the historic geographical and ecological The bay checkerspot usually is found west-facing slopes (Weiss et al. 1988). distributions of a species. associated with grasslands on The primary constituent elements of serpentine soils, such as the Montara Criteria Used To Identify Critical critical habitat for the bay checkerspot soil series. In Santa Clara County, the Habitat are those habitat components that are Inks and Climara soil series are related In an effort to map areas that have the essential for the primary biological soils and often have inclusions of features essential to the conservation of needs of foraging, sheltering, breeding, Montara (U.S. Soil Conservation Service the subspecies, we used data on known maturation, and dispersal. The areas we 1974). Henneke and other serpentine bay checkerspot locations, and are designating as critical habitat soils also occur within the range of the conservation planning areas that were provide some or all of the known bay checkerspot. Serpentine soils often identified in the Recovery Plan (Service primary constituent elements for the support other primary constituent 1998) as essential for the recovery of the subspecies, which include: stands of elements, but they are not limited to subspecies. Plantago erecta, Castilleja exserta, or serpentine soils. Soil structure with We also considered the existing status Castilleja densiflora; spring flowers stable holes or cracks and surface rocks of lands in designating areas as critical providing nectar; pollinators of the bay or rock outcrops provide cover and habitat. The bay checkerspot is known checkerspot’s food and nectar plants; shelter for bay checkerspot larvae to occur on State, county, and private soils derived from serpentinic rock; and seeking diapause sites and basking sites. lands. The range of critical habitat space for dispersal between habitable Bay checkerspot adults have been extends in the south from the San areas. In addition, the following are observed to fly considerable distances Martin area, in Santa Clara County, each primary constituent elements to be during drought conditions to draw north to San Bruno Mountain in San conserved when present in combination water or solutes from moist soils around Mateo County. We could not depend on with one or more of the primary wetlands (‘‘puddling,’’ Launer et al. Federal lands for critical habitat constituent elements above: areas of 1993). Triggering of the puddling designation because we are not open grassland, topography with varied behavior by drought conditions suggests currently aware of any Federal lands slopes and aspects providing surface it is a directed, adaptive behavior, and within the range of the bay checkerspot conditions with warm and moderate to that the butterflies are seeking out moist that can be inhabited by the butterfly. cool temperatures during sunny spring areas during times of water or heat We are also not aware of any Tribal days, stable holes or cracks in the soil stress to obtain essential nutrients or lands in or near the critical habitat units and surface rocks or rock outcrops, water (Launer et al. 1993). for the bay checkerspot. wetlands providing moisture during Adult bay checkerspots are capable of Section 10(a) of the Act authorizes us times of spring drought. dispersing over long distances. to issue permits to take listed species Appropriate grassland vegetation Movements of more than 5.6 kilometers incidental to otherwise lawful activities. provides cover for larvae, pupae and (km) (3.5 miles (mi)) have been An incidental take permit application adults, egg-laying stimuli and sites for documented (see Service 1998), and must be supported by a habitat females, and adequate open ground for longer movements are possible. Adult conservation plan (HCP) that identifies larvae to be able to crawl efficiently in dispersal, especially by fertilized conservation measures that the search of foraging, basking, diapause, or females carrying eggs, is vital to the permittee agrees to implement for the pupation sites (Service 1998). Stands of maintenance of natural bay checkerspot species to minimize and mitigate the food plants, including nectar plants, are metapopulation structure, which impacts of the requested incidental take. important in the bay checkerspot’s life requires reestablishment or One small, short-term HCP covers the cycle. The bay checkerspot’s primary replenishment of populations that are at bay checkerspot on about 4 hectares (ha) larval food plant is Plantago erecta, an or near local extinction. Roads, (10 acres (ac)) of critical habitat through annual, native plantain. The larvae also especially those traveled more heavily November 2001. This HCP permits often use a secondary food plant and at higher speeds, present a risk of temporary project-related impacts from species, usually either Castilleja death or injury to dispersing bay electric transmission line work. To date, (Orthocarpus) densiflora (purple owl’s- checkerspots. Where open spaces exist project construction anticipated to affect clover) or Castilleja exserta that facilitate dispersal, they support the the bay checkerspot is substantially (Orthocarpus purpurascens) (exserted persistence of bay checkerspot complete (see the Relationship to paintbrush). These secondary food populations and metapopulations. Some Habitat Conservation Plans section plants tend to remain edible later in the habitats or land uses are thought to be below for additional information on the season than the plantain. Bay more suitable for dispersal than others; relationship between HCPs and critical checkerspot adults benefit from visiting for example, grassland may be more habitat designation). flowers for nectar. Nectar plants readily crossed than woodland or In selecting areas of critical habitat, commonly visited include Lomatium landscaped areas. But documented long- we made an effort to avoid developed spp. (desertparsley), Lasthenia distance movements demonstrate that areas, such as towns and other similar californica (= chrysostoma) (California the bay checkerspot is sometimes lands, that are unlikely to contribute to goldfields), Layia platyglossa (tidy-tips), capable of crossing a variety of bay checkerspot conservation. However, Muilla maritima (sea muilla), and substrates (Service 1998). the information available to us did not others. Topographic diversity provides allow us to exclude all recently Adequate native pollinators to sustain opportunities for early season warmth developed areas, such as towns, housing populations of Castilleja and nectar as well as cool north-and east-facing developments, or other lands unlikely to species, including, but not limited to, slopes that are a refuge for the contain the primary constituent such groups as bumblebees and solitary subspecies during droughts. Bay elements essential for conservation of bees, are important to the value of checkerspot larvae develop more the bay checkerspot. Existing features critical habitat because these plants are rapidly when they can bask in sunlight and structures within the boundaries of dependent on pollinators to reproduce that penetrates short-statured grassland the mapped units, such as buildings, and perpetuate their populations in the vegetation. Adults also use warm roads, aqueducts, railroads, airports,
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other paved areas, lawns, and other critical habitat have been divided into is necessary to reduce the long-term risk urban landscaped areas are not likely to 15 Critical Habitat Units. Critical habitat of range-wide extinction of the contain primary constituent elements designated for the bay checkerspot subspecies (Service 1998). essential for the conservation of the bay includes 9,673 ha (23,903 ac), with 806 The long-term probability of the checkerspot. Federal actions limited to ha (1,992 ac) in San Mateo County and survival and recovery of the bay those areas, therefore, would not trigger 8,867 ha (21,911 ac) in Santa Clara checkerspot butterfly is dependent on a section 7 consultation, unless they County. Because the bay checkerspot is the maintenance of its metapopulation affect the species and/or primary nearly confined to island-like patches of dynamics through the protection of constituent elements in adjacent critical habitat, its critical habitat is easily existing serpentine habitat, the habitat. categorized into separate areas or units (see maps). We present brief movement of individuals between these Critical Habitat Designation descriptions of each unit, and our sites, and the ability of the butterflies to The areas we are designating as reasons for designating it as critical recolonize habitat where they have critical habitat currently provide some habitat, below. become extirpated. Recolonization of or all of those habitat components Conserving the bay checkerspot sites with suitable habitat that contained necessary to meet the primary biological includes the need to reestablish historic populations that have become extinct needs of the bay checkerspot butterfly. populations of the subspecies to areas and the maintenance of genetic diversity Table 1 shows the approximate area of within several of the units, in order to within existing populations is critical habitat by county and land secure the butterfly in representative dependent upon ‘‘stepping stones’’ of ownership. Lands designated are under sites in its former range, and in a range habitat, including habitat that may private and State and local ownership. of habitat and climate conditions. appear marginal, that the bay The subspecies is not known to occur, Returning the bay checkerspot to good checkerspot can colonize and disperse or to have historically occurred, on representatives of its former diversity of from during rare periods of very Federal lands. Lands designated as sites and habitat and climate conditions favorable climatic conditions.
TABLE 1.—APPROXIMATE CRITICAL HABITAT IN HECTARES (HA) AND ACRES (AC) BY COUNTY AND OWNERSHIP [Area estimates reflect critical habitat unit boundaries; however, not all the areas within those broad boundaries, such as cities, towns, or other developments, contain habitat features considered essential to the survival of the bay checkerspot]
County Federal Local/State Private Total
San Mateo ...... 0 520 ha (1,285 ac) ...... 286 ha (707 ac) ...... 806 ha (1,992 ac). Santa Clara ...... 0 922 ha (2,278 ac) ...... 7,945 ha (19,633 ac) ..... 8,867 ha (21,911 ac).
Total ...... 0 1,442 ha (3,563 ac) ...... 8,231 ha (20,340 ac) ..... 9,673 ha (23,903 ac).
Unit 1. Edgewood Park/Triangle Unit good habitat, although additional connection to units in the Santa Clara Occurring in San Mateo County, this management attention may be needed County metapopulation. unit comprises 217 ha (535 ac) in T.5 S., for the bay checkerspot to thrive here. Unit 3. San Bruno Mountain Unit R.4 W. (Mount Diablo meridian/base The unit is 7 km (4 mi) northwest of the line). Included is most of Edgewood Jasper Ridge unit. This unit also occurs in San Mateo County, with approximately 303 ha (748 Natural Preserve, a county park Unit 2. Jasper Ridge Unit southeast of the junction of Edgewood ac) in T.3 S., R.5 W. (Mount Diablo Road, and I–280, and watershed lands of Occurring within San Mateo County, meridian/base line), above the 152 m (500 ft) elevation contour, and east of the San Francisco Public Utilities the unit covers 287 ha (709 ac) in the western Pacific Gas and Electric Commission, Water Supply and Stanford University’s Jasper Ridge transmission corridor on San Bruno Treatment Division, within the triangle Biological Preserve, in T.6 S., R.3 W. formed by I–280, Edgewood Road, and Mountain. This unit is mostly within (Mount Diablo meridian/base line). San Bruno Mountain State and County Canada Road, as well as a small Decades of data and dozens of additional area of serpentine soil on the Park, and is inside the boundaries of the published scientific papers about the San Bruno Mountain Area Habitat west side of Canada Road. Much of this Jasper Ridge population of the bay area also falls within the San Francisco Conservation Plan area. The bay checkerspot exist. The population has State Fish and Game Refuge. The area checkerspot formerly inhabited this severely declined in recent years, and supports the Edgewood population of area, but is believed to have been the bay checkerspot discussed in the may now be extirpated (Service 1998). extirpated around 1986 by a subspecies’ Recovery Plan, which is the However, we are confident that a stable combination of factors, including over- main population of the San Mateo population of the subspecies can be collection and a fire that burned its metapopulation of the bay checkerspot restored to Jasper Ridge because the area habitat. However, this unit has (Service 1998). Without the Edgewood is protected and managed as a biological supported a substantial bay checkerspot population the San Mateo preserve by Stanford University and population in the past, and it is metapopulation would almost certainly suitable habitat continues to be present. reasonable to expect that the butterfly go extinct, resulting in the loss of one The Jasper Ridge population is essential can be reestablished here. of only two metapopulations of the bay as a supporting element of the San San Bruno Mountain represents the checkerspot and a significant range Mateo metapopulation, and a backup to most northerly part of the subspecies’ reduction for the subspecies. This the Edgewood and prospective San former range on the San Francisco population is also the northernmost Bruno Mountain populations. The unit peninsula with reasonably good remaining population of the subspecies. is 34 km (21 mi) west-northwest of the conditions to support the bay The unit contains considerable areas of Communications Hill unit, the closest checkerspot. The San Bruno Mountain
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unit is essential as a supporting element Unit 6. Communications Hill Unit checkerspot has been documented on of the San Mateo metapopulation, and a Communications Hill, and adjacent one or all of these outcrops in recent backup to the Edgewood and Jasper hilltops in south-central San Jose, are surveys. This unit also includes some Ridge populations. The unit lies 25 km formed by outcroppings of serpentine intervening areas that connect the closer (16 mi) north-northwest of the rock, with grasslands capable of outcrops. The Coyote Ridge unit lies Edgewood Park/Triangle unit. supporting the bay checkerspot. This about 3.2 km (2 mi) to the northeast, the Santa Teresa unit about 2 km (1.2 mi) Unit 4. Bear Ranch Unit unit occurs in Santa Clara County and to the northwest, the San Vicente-Calero The Bear Ranch unit, totaling 250 ha covers 179 ha (443 ac) of mostly undeveloped land. It also crosses a unit about 3.2 km (2 mi) to the west, and (617 ac), lies west of Coyote Lake the Morgan Hill unit about 3.2 km (2 mi) major road and railroad tracks, and (Coyote Reservoir) in the eastern hills of to the southeast. Because of its includes a quarry that we believe, after the Santa Clara Valley, in southern proximity to several other, large appropriate reclamation, could be Santa Clara County (T.9 S., R.4 E. and population centers for the bay restored to bay checkerspot habitat. The T.10 S., R.4 E., Mount Diablo meridian/ checkerspot, we expect the Kalana Hills bay checkerspot has been documented base line). The unit is named for a unit to be regularly occupied by the on Communications Hill in the past. A ranching property that partly occurs in subspecies. If, as is possible given the survey of a limited portion of the hill the unit. The ranch and lands, including bay checkerspot’s large population conducted in the spring of 2000, but and surrounding the unit, are now swings, the butterfly’s population in the which missed the early weeks of the owned and managed by the Santa Clara unit were to die out, it is likely to be County Parks and Recreation butterflies’ flight season, did not detect quickly reestablished by bay Department. This location represents the subspecies (Arnold 2000). Whether checkerspots immigrating from adjacent one of the most recent population the unit is currently occupied is not sites. We are not aware of any public discoveries of the bay checkerspot, and known. We believe this unit functions lands in the unit. A portion of the has been documented for several years as habitat of the species, functions in its largest and northernmost serpentine as a persistent population. The regional metapopulations dynamics, outcrop is within the limits of the City population is also one of the most and functions as a ‘‘stepping stone’’ for of San Jose; the remainder of the unit is southerly occurrences of the bay bay checkerspot dispersal. The Recovery on private lands in unincorporated checkerspot. It lies about 10 km (6 mi) Plan (Service 1998) calls for Santa Clara County. southeast of the Kirby core population conservation of larger habitat areas area described in the Recovery Plan currently or historically occupied by the Unit 8. Kirby Unit (Service 1998), with some intervening bay checkerspot. Conservation of habitat The Kirby critical habitat unit habitable areas and adequate dispersal at Communications Hill is identified in includes 2,797 ha (6,912 ac) along the corridors. Over 40 ha (100 ac) of the Recovery Plan as a priority 2 action, southern portion of ‘‘Coyote Ridge’’ in mapped and an unquantified acreage of i.e., a recovery action that must be taken Santa Clara County (T.8 S., R.2 E., T.8 unmapped serpentine soils in several to prevent decline or other negative S., R.3 E., and T.9 S., R.3 E., Mount large to small patches occur within the impact short of extinction (Table IV–1, Diablo meridian/base line). It contains unit. In addition to the significance of task 2.1.19 in the Recovery Plan). This the Kirby area for the bay checkerspot its position establishing the outer location also represents the discussed in the subspecies’ Recovery perimeter of the range of the subspecies, northwestern-most remnant of the Santa Plan (Service 1998). The ridge, the Recovery Plan makes the protection Clara County metapopulation. The unit informally known as Coyote Ridge, runs of large, good-quality habitat areas near is surrounded by Curtner Avenue, northwest to southeast, parallel to and core populations, such as this, a high Almaden Expressway, Hillsdale east of Highway 101 from Yerba Buena priority (Service 1998). Avenue, and Monterey Road (T.7 S., R.1 Road to Anderson Reservoir in Santa E., Mount Diablo meridian/base line), Clara County, and forms the eastern Unit 5. San Martin Unit and lies 3 km (2 mi) west of the Silver slope of the Santa Clara Valley (U.S. This unit includes 237 ha (586 ac) Creek unit. Geological Survey (USGS) 7.5 minute west of San Martin, in the western Much of this unit lies on private lands quadrangles San Jose East, Lick foothills of the Santa Clara Valley in within unincorporated lands, with a Observatory, Santa Teresa Hills, and southern Santa Clara County (T.9 S., R.3 smaller area in the City of San Jose. Morgan Hill. The ridge is not named on E). Included in the designated critical Portions of a Santa Clara County these maps). Coyote Ridge also parallels habitat are extensive areas of serpentine communications facility, a San Jose the Silver Creek Fault and Silver Creek soils and intervening areas that support water company facility, and recently itself. Extensive serpentine soil areas, habitat or are used for dispersal. Regular developed lands may fall within the and four population areas for the bay occupation of the unit by the bay unit. Only currently undeveloped areas checkerspot (Kirby, Metcalf, San Felipe, checkerspot has been documented, supporting the primary constituent and Silver Creek Hills) lie on, or although no quantitative surveys are elements of habitat for the bay adjacent to, this ridge and fault system available of this population. The unit checkerspot would be subject to (Service 1998). Metcalf Canyon, Silver lies entirely on private lands in regulatory oversight of any Federal Creek, and nonserpentine soil areas unincorporated Santa Clara County, actions. create natural divisions among these about 6.4 km (4 mi) west-southwest of four population areas. The Kirby unit is the Bear Ranch unit and 11 km (7 mi) Unit 7. Kalana Hills Unit the southernmost of four critical habitat south of the Kirby core area. This is the The Kalana Hills unit in Santa Clara units corresponding to the four second population at the southern County comprises 99 ha (244 ac) on the population areas along Coyote Ridge, periphery of the range. The Recovery southwest side of the Santa Clara Valley and runs along this ridge east of Plan makes the protection of large, between Laguna Avenue and San Bruno Highway 101 and Coyote Creek from good-quality habitat areas near core Avenue (T.9 S., R.2 E, Mount Diablo Metcalf Canyon south to Anderson populations, such as this, a high priority meridian/base line). Four serpentine Lake. The northern boundary of the (Service 1998). We are not aware of any outcrops form hills or hillsides in this Kirby unit abuts the Metcalf unit. The public lands in the unit. area. At least one population of the bay northwest tip of the Kirby unit also
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connects to the Tulare Hill Corridor considers protection of this area nectaring and dispersal areas. We are unit. essential to the conservation of the not aware of any public lands in the The Kirby critical habitat unit subspecies (Service 1998). We removed unit. regularly supports one of the largest approximately 81 ha (201 ac), mostly Unit 12. Silver Creek Unit populations of the bay checkerspot, and residential development, from the unit is considered one of the centers of the as it was proposed. The Silver Creek unit comprises 318 subspecies’ Santa Clara County ha (787 ac), primarily within the limits metapopulation. The Recovery Plan Unit 10. Metcalf Unit of the City of San Jose, but with some (Service 1998) considers protection of This unit includes 1,356 ha (3,351 ac) area on private lands in unincorporated the area of the highest priority for in Santa Clara County, east of Highway Santa Clara County (T.7 S., R.1 E., T.7 conservation of the subspecies. The unit 101, south of Silver Creek Valley Road, S., R.2 E., T.8 S., R.2 E., Mount Diablo contains several hundred acres of north of Metcalf Canyon, and west of meridian/base line). This unit is diverse serpentine grassland habitat as Silver Creek (T.8 S., R.2 E., Mount surrounded by Highway 101 and Coyote well as nectaring areas, seasonal Diablo meridian/base line). The unit Creek on the west, Yerba Buena Road on wetlands, and dispersal areas. The unit contains the Metcalf area for the bay the north, Silver Creek on the east and includes lands within the limits of the checkerspot, one of the four largest northeast, and Silver Creek Valley Road City of San Jose, private lands in habitat areas and three largest current on the south. The unit includes the unincorporated Santa Clara County, and population centers for the bay Silver Creek Hills population area for small areas in the City of Morgan Hill. checkerspot (Service 1998). As of the the bay checkerspot (Service 1998). It Public lands in this unit include the spring of 2000, this area supported the includes nearly 405 ha (1,000 ac) of Santa Clara County Field Sports Park bay checkerspot’s densest population contiguous serpentine soils, other and portions of Santa Clara County (Weiss in litt. 2000). Hundreds of acres scattered serpentine outcrops, and also Motorcycle Park, Anderson Lake County of serpentine soils, and thousands of habitat less suitable for breeding but Park, Coyote Creek Park, and lands of bay checkerspot butterflies, occur needed for nectar-feeding or dispersal. the Santa Clara Valley Water District. A within the unit. This area is considered Approximately 382 ha (943 ac) of 101 ha (250 ac) reserve, leased by Waste one of the centers of the subspecies’ developed areas and graded lands Management Inc. on behalf of the Kirby Santa Clara County metapopulation. permitted for development have been Conservation Trust to further The Recovery Plan (Service 1998) removed from the unit as it was conservation of the bay checkerspot, considers protection of the area of the proposed. Included in our final also falls within the unit. The Kirby highest priority for conservation of the designation for this unit is a roughly 162 Conservation Trust has funded bay checkerspot. This unit adjoins the ha (400 ac) nature preserve owned by extensive research on the bay Kirby unit to the south, San Felipe unit William Lyon Homes (former Presley checkerspot for more than a decade at to the east, Silver Creek Hills unit to the Homes) and managed by the non-profit the lease site, greatly improving our north, and Tulare Hill Corridor unit to Silver Creek Preserve. Several electric understanding of the ecology, the west, and provides crucial habitat transmission lines and two major population dynamics, and conservation connectivity for bay checkerspot natural gas lines cross the unit. needs of the subspecies (see literature dispersal among these areas. The In the last several years, a small cited in Service 1998). We removed Metcalf unit lies in the City of San Jose population of the bay checkerspot has approximately 57 ha (141 ac), all and on private lands in unincorporated been documented in the Silver Creek nonserpentine lands, from the unit as it Santa Clara County. Portions of Santa unit, and the area has a long history of was proposed on October 16, 2000. Clara County Motorcycle Park, Coyote much larger populations. Portions of the Creek Park, and lands of Santa Clara unit known to have been inhabited by Unit 9. Morgan Hill Unit Valley Water District fall within the the bay checkerspot in the past are The Morgan Hill unit in Santa Clara unit. We removed approximately 260 ha currently in degraded condition. With County includes 293 ha (724 ac) (643 ac), mostly commercial and the management being implemented by northwest of the City of Morgan Hill in residential development, from the unit Lyon Homes and Silver Creek Preserve, Santa Clara County (T.9 S., R.2 E., T.9 as it was proposed. we believe that the Silver Creek Hills S., R.3 E., Mount Diablo meridian/base population is likely to increase, and that Unit 11. San Felipe Unit line). It lies less than 3.2 km (2 mi) much of the degraded area will be southwest of the Coyote Ridge unit and This unit includes 404 ha (998 ac) in restored to useful breeding habitat. The about 3.2 km (2 mi) southeast of the Santa Clara County, southwest of San Silver Creek unit has extensive, diverse, Kalana Hills unit. This is the area Felipe Road and north of Metcalf Road and high-quality habitat, and represents described as ‘‘north of Llagas Avenue’’ (T.8 S., R.2 E., Mount Diablo meridian/ the northernmost unit of the Santa Clara in our 1998 Recovery Plan. The unit is base line), primarily on private lands in County metapopulation. The Silver partly within the limits of the City of unincorporated county lands, but also Creek unit provides a population Morgan Hill and partly on private lands within San Jose city limits. The unit reservoir critical to the survival of the in unincorporated Santa Clara County. contains the San Felipe population area Santa Clara County metapopulation of Murphy Springs Park, a small city park, for the bay checkerspot, one of the four bay checkerspot—the larger and more is within the unit. The Morgan Hill unit largest habitat areas and three largest viable of the two remaining has large areas of serpentine soils and current population centers for the bay metapopulations (Service 1998). grassland with a variety of slope checkerspot (Service 1998). This area is exposures, suitable for the bay considered one of the centers of the Unit 13. San Vicente-Calero Unit checkerspot. The unit has been subspecies’ Santa Clara County The San Vicente-Calero unit contains documented to be occupied by the bay metapopulation. The Recovery Plan 759 ha (1,875 ac) within and to the west checkerspot in the past, as well as in (Service 1998) considers protection of of Calero County Park, Santa Clara more recent surveys in the past 2 to 3 the area of the highest priority for County (T.8 S., R.1 E., T.8 S., R.2 E., T.9 years. Because of its large habitat area conservation of the bay checkerspot. S., R.1 E., and T.9 S., R.2 E., Mount and proximity to core populations of the Several hundred acres of serpentine Diablo meridian/base line). This area bay checkerspot, the Recovery Plan soils occur within the unit with supports a known population of the bay
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checkerspot in a large area of good- Unit 15. Tulare Hill Corridor Unit diminishes the value of the critical quality habitat; other areas within the The Tulare Hill Corridor unit, 355 ha habitat for the survival and recovery of unit that are suitable for the bay (876 ac) in Santa Clara County, connects the species. Individuals, organizations, checkerspot have not been surveyed. the Coyote Ridge (Kirby and Metcalf, States, local governments, and other The unit is also within bay checkerspot and through them, San Felipe and Silver non-Federal entities are affected by the dispersal distance of the Santa Teresa Creek) and Santa Teresa units. Tulare designation of critical habitat only if Hills unit (see below), which we Hill is a prominent serpentine hill that their actions occur on Federal lands, consider to be capable of supporting a rises from the middle of the Santa Clara require a Federal permit, license, or very large population of the bay Valley in southern San Jose, west of the other authorization, or involve Federal checkerspot, and the Kalana Hills unit crossing of Metcalf Road and Highway funding. Section 7(a) of the Act requires (number 9, above), which are 101 (T.8 S., R.2 E., Mount Diablo meridian/base line). Extensive habitat Federal agencies, including the Service, themselves accessible to and from other to evaluate their actions with respect to units. Therefore, we believe the San on the hill is currently occupied by the bay checkerspot, and is essential both as any species that is proposed or listed as Vicente-Calero population can endangered or threatened, and with contribute significantly to maintaining a population center and for dispersal across the valley. The Metcalf and Kirby respect to its critical habitat, if any is the Santa Clara County metapopulation proposed or designated. Regulations of the bay checkerspot. For all these populations of the bay checkerspot lie less than 1 km (0.6 mi) to the northeast, implementing this interagency reasons, the Recovery Plan (Service cooperation provision of the Act are 1998) considers protection of this area separated by a major highway (U.S. 101) and a narrow band of other unfavorable codified at 50 CFR part 402. Section essential to the conservation of the uses (another large road, railroad tracks, 7(a)(4) and regulations at 50 CFR 402.10 subspecies. The unit is south of McKean an electrical substation, a large open requires Federal agencies to confer with Road and east of the town of New reservoir with artificially hardened us on any action that is likely to Almaden, Almaden Road, and Alamitos banks, and agricultural area). The Santa jeopardize the continued existence of a Creek. It lies about 1.6 km (1 mi) south Teresa Hills population area for the proposed species or result in of the Santa Teresa unit and about 3.2 subspecies lies about 2 km (1.2 mi) to destruction or adverse modification of km (2 mi) west of the Kalana Hills unit. the southwest, with dispersal habitat in proposed critical habitat. Conference Portions of the unit outside the county between. We believe the long-term reports provide conservation park are within the limits of the City of viability of the bay checkerspot depends recommendations to assist the agency in San Jose. on the presence of a corridor for eliminating conflicts that may be caused by the proposed action. The Unit 14. Santa Teresa Hills Unit dispersal of adults to and from the Santa Teresa Hills and Coyote Ridge (Service conservation recommendations in a conference report are advisory. If a The Santa Teresa Hills unit includes 1998). Tulare Hill is an ideal location for such a corridor because of the species is listed or critical habitat is 1,821 ha (4,500 ac) in Santa Clara designated, section 7(a)(2) requires County (T.8 S., R.1 E. and T.8 S., R.2 E., narrowness of the valley at this location and the limited amount of development Federal agencies to ensure that activities Mount Diablo meridian/base line) with they authorize, fund, or carry out are not extensive areas of serpentine soils. currently present, the presence of high elevations on the hill that may attract likely to jeopardize the continued Portions of the Santa Teresa Hills are existence of such a species or to destroy butterflies over busy roads and known to support the bay checkerspot or adversely modify critical habitat. If a developed areas, and the presence of now, and have supported the subspecies Federal action may affect a listed suitable habitat on Tulare Hill itself. in the past, but no current species or its critical habitat, the Migrant butterflies from either Santa comprehensive survey of the bay responsible Federal agency (action Teresa Hills or Coyote Ridge may settle checkerspot in the area is available. We agency) must enter into consultation on Tulare Hill, contributing individuals believe that the Santa Teresa Hills could with us. Through this consultation, we and genetic diversity to the population support a significant population of bay would ensure that the permitted actions there, and adults from Tulare Hill may do not destroy or adversely modify checkerspots. In addition to adding a migrate to the adjacent habitat areas. critical habitat. fifth substantial population to the Santa Public lands within the designated Clara County metapopulation, When we issue a biological opinion unit include parts of Coyote Creek Park, concluding that a project is likely to conservation and management of the Metcalf Park, and Santa Teresa County Santa Teresa Hills population would result in the destruction or adverse Park. Roughly half of Tulare Hill itself modification of critical habitat, we also support development of a strong is within the limits of the City of San population of the bay checkerspot in a seek to provide reasonable and prudent Jose, the remainder on private lands in alternatives to the project, if any are slightly cooler, moister area of the unincorporated Santa Clara County. identifiable. ‘‘Reasonable and prudent county, at a site that may experience Several major electrical transmission alternatives’’ are defined at 50 CFR less air pollution than the more eastern lines cross the unit. Some areas within 402.02 as alternative actions identified units. The Santa Teresa Hills critical the unit are not inhabited by bay during consultation that can be habitat unit is intended to include most checkerspot individuals but can implemented in a manner consistent undeveloped habitat in the area, as well function as dispersal corridors. with the intended purpose of the action, as intervening areas that are unsurveyed Effect of Critical Habitat Designation that are consistent with the scope of the or less suitable but needed for dispersal Federal agency’s legal authority and among higher-quality areas. The unit Section 7 Consultation jurisdiction, that are economically and lies north of Bailey Avenue, McKean Section 7(a)(2) of the Act requires technologically feasible, and that the Road, and Almaden Road, south of Federal agencies, including the Service, Director believes would avoid developed areas of the city of Santa to ensure that actions they fund, destruction or adverse modification of Clara, and west of Santa Teresa authorize, or carry out do not destroy or critical habitat. Reasonable and prudent Boulevard. The unit abuts the Tulare adversely modify critical habitat to the alternatives can vary from slight project Hill Corridor unit. extent that the action appreciably modifications to extensive redesign or
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relocation of the project. Costs habitat, or that may be affected by such conversion to urban development, associated with implementing a designation. Activities that may destroy vineyards, landscaping, etc.); reasonable and prudent alternative are or adversely modify critical habitat (4) Sale, exchange, or lease of critical similarly variable. include those that appreciably reduce habitat that is likely to result in the Regulations at 50 CFR 402.16 require the value of critical habitat for both the habitat being destroyed or degraded; Federal agencies to reinitiate survival and recovery of the bay (5) Recreational activities that consultation on previously reviewed checkerspot. Within critical habitat, this significantly deter the use of critical actions in instances where critical pertains only to those areas containing habitat by bay checkerspots or alter habitat is subsequently designated, and the primary constituent elements. We habitat through associated maintenance the Federal agency has retained note that such activities may also activities (e.g., off-road vehicle parks, discretionary involvement or control jeopardize the continued existence of golf courses, trail construction or over the action or such discretionary the species. maintenance); involvement or control is authorized by To properly portray the effects of (6) Construction activities that destroy law. Consequently, some Federal critical habitat designation, we must or degrade critical habitat (e.g., urban agencies may request reinitiation of first compare the section 7 requirements and suburban development, building of consultation or conference with us on for actions that may affect critical recreational facilities such as off-road actions for which formal consultation habitat with the requirements for vehicle parks and golf courses, road has been completed, if those actions actions that may affect a listed species. building, drilling, mining, quarrying may affect designated critical habitat, or Section 7 prohibits actions funded, and associated reclamation activities); adversely modify or destroy proposed authorized, or carried out by Federal and critical habitat. Conference reports assist agencies from jeopardizing the (7) Application or drift onto critical the agency in eliminating conflicts that continued existence of a listed species habitat of pesticides, herbicides, may be caused by the proposed action, or destroying or adversely modifying the fertilizers, or other chemicals or and may include recommendations on listed species’ critical habitat. Actions biological agents. actions to eliminate conflicts with or likely to ‘‘jeopardize the continued (8) Deposition or release onto critical adverse modifications to proposed existence’’ of a species are those that habitat of pollutants, other chemicals or critical habitat. The conservation would appreciably reduce the biological agents. Any of the above activities that recommendations in a conference report likelihood of the species’ survival and appreciably diminish the value of are advisory. recovery. Actions likely to ‘‘destroy or We may issue a formal conference critical habitat, once established, to the adversely modify’’ critical habitat are report if requested by a Federal agency. degree that they affect the survival and those that would appreciably reduce the Formal conference reports on proposed recovery of the bay checkerspot may be value of critical habitat for the survival critical habitat contain an opinion that considered an adverse modification of and recovery of the listed species. is prepared according to 50 CFR 402.14, critical habitat. We note that such as if critical habitat were designated. We Common to both definitions is an activities may also jeopardize the may adopt the formal conference report appreciable detrimental effect on both continued existence of the subspecies. as the biological opinion when the survival and recovery of a listed species. If you have questions regarding critical habitat is designated, if no Given the similarity of these definitions, whether specific activities will substantial new information or changes actions likely to destroy or adversely constitute destruction or adverse in the action alter the content of the modify critical habitat would almost modification of critical habitat resulting opinion (see 50 CFR 402.10(d)). always result in jeopardy to the species from a Federal action, contact the Field Activities on Federal lands that may concerned, particularly when the area of Supervisor, Sacramento Fish and affect the bay checkerspot or its critical the proposed action is occupied by the Wildlife Office (see ADDRESSES section). habitat will require section 7 species concerned. Designation of Requests for copies of the regulations on consultation. Activities on private or critical habitat in areas occupied by the listed wildlife, and inquiries about State lands requiring a permit from a bay checkerspot is not likely to result in prohibitions and permits may be Federal agency, such as a permit from a regulatory burden above that already addressed to the U.S. Fish and Wildlife the U.S. Army Corps of Engineers in place due to the presence of the listed Service, Branch of Endangered Species, (Corps) under section 404 of the Clean subspecies. 911 N.E. 11th Ave, Portland, Oregon Water Act, a section 10(a)(1)(B) permit Activities that, when carried out, 97232 (telephone 503/231–2063; from the Service, or some other Federal funded, or authorized by a Federal facsimile 503/231–6243). action, including funding (e.g., Federal agency, may affect critical habitat and Highway Administration (FHA), Federal require that a section 7 consultation be Relationship to Habitat Conservation Aviation Administration, or Federal conducted include, but are not limited Plans (HCPs) Emergency Management Agency to: Section 4(b)(2) of the Act allows us (FEMA)), will also continue to be (1) Ground disturbance, including but broad discretion to exclude from critical subject to the section 7 consultation not limited to, grading, discing, ripping habitat designation areas where the process. Federal actions not affecting and tilling; benefits of exclusion outweigh the listed species or critical habitat and (2) Removing, destroying, or altering benefits of designation, provided the actions on non-Federal lands that are vegetation (e.g., altering grazing exclusion will not result in the not federally funded, authorized, or practices or seeding); extinction of the species. We believe permitted do not require section 7 (3) Water contracts, transfers, that, in most instances, the benefits of consultation. diversion, impoundment, application, excluding HCPs from critical habitat Section 4(b)(8) of the Act requires us or conveyance, groundwater pumping, designations will outweigh the benefits to briefly evaluate and describe in any irrigation, or other activity that wets or of including them. proposed or final regulation that inundates habitat, creates barriers or The benefits of including HCP lands designates critical habitat those deterrents to dispersal, or results in in critical habitat are normally small. activities involving a Federal action that critical habitat being converted to lower Federally authorized, funded, or may destroy or adversely modify such values for the bay checkerspot (e.g., permitted activities in designated
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critical habitat that may affect critical development of biological information organizations, and private landowners, habitat require consultation under to guide conservation efforts and assist that together can implement section 7 of the Act. This is the major in species recovery and the creation of conservation actions we would be benefit of designating lands as critical innovative solutions to conserve species unable to accomplish alone. By habitat. Consultation would ensure that while allowing for development. The excluding areas covered by HCPs from adequate protection is provided to avoid educational benefits of critical habitat, critical habitat designation, we preserve adverse modification of critical habitat. including informing the public of areas these partnerships, and, we believe, set However, our experience indicates that that are important for the conservation the stage for more effective conservation where HCPs are in place, this benefit is of the species, are essentially the same actions in the future. small or non-existent. Currently as those that would occur from the In general, then, we believe the approved and permitted HCPs are public notice and comment procedures benefits of critical habitat designation to designed to ensure the long-term required to establish an HCP, as well as be small in areas covered by approved survival of covered species within the the public participation that occurs in HCPs. We also believe that the benefits plan area. The lands that we would find the development of many regional of excluding HCPs from designation are essential for the conservation of the HCPs. For these reasons, then, we small, but significant. We believe that species, and thus be considered for believe that designation of critical the small benefits of inclusion, when designation of critical habitat would, habitat has little benefit in areas covered weighed against the benefits of where we have approved HCPs and the by HCPs. exclusion, including the benefits of species is a covered species under the In contrast, the benefits of excluding relieving property owners of an HCP, normally be protected in reserves HCPs from being designated as critical additional layer of approvals and and other conservation lands. HCPs, and habitat are more significant. In response regulation, together with the their associated implementation to other critical habitat proposals, we encouragement of conservation agreements, outline management have received comments about the partnerships, would generally result in measures and protections for additional regulatory and economic HCPs being excluded from critical conservation lands that are crafted to burden of designating critical habitat. habitat designation under section 4(b)(2) protect, restore, and enhance their value These include the need for additional of the Act. as habitat for covered species. consultation with us and the need for Given this general analysis, we expect In addition, an HCP application must additional surveys and information to analyze the specific benefits in each itself be consulted upon by the Service. gathering to complete these particular critical habitat designation While this consultation will not look consultations. HCP applicants have also because not all HCPs are alike with specifically at the issue of adverse stated that they are concerned that third regard to species coverage and design. modification of critical habitat, it will parties may challenge HCPs on the basis Within this designation, we need to look at the very similar concept of that they result in adverse modification evaluate completed and legally jeopardy to the listed species in the plan or destruction of critical habitat. operative HCPs in the range of the bay area. HCPs, particularly large regional The benefits of excluding HCPs from checkerspot to determine whether the HCPs, address land use within the plan critical habitat include relieving benefits of excluding these particular boundaries; habitat issues within the landowners, communities, and counties areas outweigh the benefits of including plan boundaries are thoroughly of any additional minor regulatory them. addressed in the HCP and the review that might be imposed by critical The San Bruno Mountain Area HCP consultation on the HCP. Our habitat. This benefit is important given overlaps with the critical habitat experience is that, under most our past representations that once an designation on San Bruno Mountain. circumstances, consultations under the HCP is negotiated and approved by us The bay checkerspot is believed to have jeopardy standard will reach the same after public comment, activities been extirpated from the mountain since result as consultations under the consistent with the plan will satisfy the about 1986. The San Bruno Mountain adverse modification standard. requirements of section 10(a)(1)(B) of Area HCP does not discuss the bay Additional measures to protect the the Act. Many HCPs, particularly large checkerspot in detail, and the Incidental habitat from adverse modification are regional HCPs, take many years to Take Permit for this HCP currently does not likely to be required. develop and, upon completion, become not include the subspecies. Therefore, Further, HCPs typically provide for regional conservation plans that are we have not excluded the area covered greater conservation benefits to a consistent with the recovery of covered by this HCP from the critical habitat covered species than section 7 species. Many of these regional plans designation. Any future Service or other consultations because HCPs assure the benefit many species, both listed and Federal agency involvement in activities long-term protection and management unlisted. Imposing an additional on San Bruno Mountain, such as habitat of a covered species and its habitat, and regulatory review after HCP completion restoration, may require section 7 funding for such management through not only results in minor, if any, consultation if there are likely to be the standards found in the 5-Point additional benefit to the species, it may effects on bay checkerspot critical Policy for HCPs (64 FR 35242) and the jeopardize conservation efforts and habitat. HCP No Surprises regulation (63 FR partnerships in many areas and could be The Pacific Gas and Electric (PG & E) 8859). Such assurances are typically not viewed as a disincentive to those Metcalf-Edenvale/Metcalf-Monte Vista provided by section 7 consultations developing HCPs. Excluding HCPs HCP covers only about 4 ha (10 ac) in which, in contrast to HCPs, often do not provides us with an opportunity to the Santa Teresa Hills, San Vicente- commit the project proponent to long- streamline regulatory compliance and Calero, and Tulare Hill Corridor critical term special management or protections. confirms regulatory assurances for HCP habitat units. Because the HCP expires Thus, the lands covered by a participants. in November 2001, and the permitted consultation typically will not provide Another benefit of excluding HCPs is project is substantially complete within the extensive benefits of an HCP. that it would encourage the continued critical habitat areas, we are not The development and implementation development of partnerships with HCP excluding lands covered under this of HCPs provide other important participants, including States, local short-term HCP from our critical habitat conservation benefits, including the governments, conservation proposal. We believe that no formal
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consultation on any remaining work 2000, to March 12, 2001, and entered habitat designations as may be covered by the HCP will be necessary. them into the administrative record for appropriate in light of any new In the event that future HCPs covering the rule. information that may be developed. the bay checkerspot are developed We contacted all appropriate State The reviewer agreed with our within the boundaries of designated and Federal agencies, Tribes, county assessment of the value of the Tulare critical habitat, we will work with governments, elected officials, and other Hill unit as a dispersal corridor for the applicants to ensure that the HCPs interested parties and invited them to bay checkerspot butterfly to connect provide for protection and management comment. In addition, we invited public populations that lie east and west of that of habitat areas essential for the comment through the publication of unit. He contrasted Tulare Hill with conservation of the bay checkerspot by notices and display ads to announce the more isolated sites such as San Bruno either directing development and public hearing in the following Mountain and Communications Hill, habitat modification to nonessential newspapers in California: the San Mateo where the distance to existing bay areas, or appropriately modifying County Times and the Palo Alto checkerspot butterfly populations may activities within essential habitat areas Weekly. These announcements were be more than a butterfly normally so that such activities will not adversely published on October 20 and October disperses, and intervening areas are modify the primary constituent 25, 2000, respectively. In these notices urbanized. We agree that the San Bruno elements. The HCP development and the proposed rule, we announced Mountain site may require introduction process provides an opportunity for the date and time of one public hearing in order to establish and perhaps to more intensive data collection and that was held on the proposed rule. This maintain a bay checkerspot population; analysis regarding the use of particular hearing was in Newark, California, on however, we believe Communications habitat areas by the bay checkerspot. October 30, 2000. A transcript of this Hill is within normal flight range of The process also enables us to conduct hearing is available for inspection (see other Santa Clara Valley metapopulation detailed evaluations of the importance ADDRESSES section). units. of such lands to the long-term survival When the comment period was re- A second peer reviewer generally of the subspecies in the context of opened, we sent out notices of the re- supported the rule, stating that ‘‘*** constructing a biologically configured opening to all parties on a mailing list it does an excellent job of reviewing and system of interlinked habitat blocks. for the bay checkerspot. Additionally, interpreting bay checkerspot population We will provide technical assistance we held one informational meeting on biology, habitat requirements, and and work closely with applicants February 22, 2001, in San Jose, distribution.’’ In particular, she noted throughout the development of future California. that the ridge including the Kirby and HCPs to identify lands essential for the We requested four professional Metcalf units [which we call Coyote long-term conservation of the bay ecologists, who have familiarity with Ridge] is very important to the checkerspot and appropriate bay checkerspot butterflies and/or persistence of the Santa Clara County management for those lands. butterfly metapopulation dynamics, to metapopulation, supporting multiple Preliminary HCPs are being discussed peer review the proposed critical habitat demographic units. In her research for listed and non-listed species within designation. Three of the peer reviewers Coyote Ridge appeared to be a stable the range of the bay checkerspot in areas submitted comments on the proposed ‘‘source’’ that plays a major role in designated herein as critical habitat. critical habitat designation, and one did sustaining the species in the region. The These HCPs, coupled with appropriate not respond. reviewer suggested that the Edgewood adaptive management, should provide One peer reviewer stated that the unit serves the same ‘‘source role’’ in for the conservation of the subspecies. If proposed rule was ‘‘* * * formulated the San Mateo County metapopulation, these HCPs, or others, that address the utilizing technically accurate and up-to- and stated that it is important to protect bay checkerspot are ultimately date information * * *’’ about the bay Edgewood as the last remainder of approved, we will reassess the critical checkerspot, and that ‘‘*** the whatever unique genetic variants of the habitat boundaries in light of the HCPs. criteria or primary constituent elements bay checkerspot may exist in that We will seek to undertake this review ***’’ used to identify and propose region. when an HCP is approved, but funding critical habitat ‘‘* * * are appropriate The second reviewer mentioned constraints may influence the timing of to identify the large-scale boundaries of Silver Creek, Santa Teresa Hills, and such a review. critical habitat units.’’ He found that the Morgan Hill as having especially good maps and descriptions of the 15 potential for strong populations of the Summary of Comments and proposed critical habitat units we bay checkerspot butterfly, but that the Recommendations prepared ‘‘* * * accurately delimit the Santa Teresa Hills, such as the ungrazed In the October 16, 2000, proposed rule approximate boundaries of potential Santa Teresa County Park, may need (65 FR 61218), we requested all habitat at every location.’’ more grazing to achieve its full potential interested parties to submit comments He recommended we review the as a large block of habitat. She stated on the specifics of the proposal status of Euphydryas editha populations that during her field studies, the only including information, policy, treatment of uncertain subspecific status in San critical habitat unit she did not think of HCPs, and proposed critical habitat Benito and San Luis Obispo counties. had much potential as bay checkerspot boundaries as provided in the proposed We note that we will continue to review habitat was Communications Hill, rule. The first comment period closed and consider scientific data and peer recalling it as being disturbed and on December 15, 2000. The comment consensus on the subspecific status of grassy with few native forb-dominated period was reopened from February 9, uncertain Euphydryas editha meadows. We note that we have 2001, to March 12, 2001, (66 FR 9683) populations as it becomes available. We received a recent host plant survey of a to allow for additional comments on believe that the best information portion of Communications Hill that both the proposed rule and the draft available at this time supports documents substantial areas of larval economic analysis. Although not stated proceeding with this rule substantially food plants and adult nectar plants in the Federal Register notice of as proposed. The Act provides (Arnold 2000). February 9, 2001, we accepted all procedures under section 4 for The third reviewer also generally comments received from October 16, modifying species listings and critical supported the rule, finding it ‘‘carefully
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constructed, comprehensive, and well private individuals or organizations. We and conserve listed species and critical justified. * * * Importantly, the critical reviewed all comments received for habitat. The list in no way conveys land habitat areas contain important substantive issues and new information use jurisdiction to the Service. The dispersal corridors between serpentine regarding critical habitat and the bay trigger for section 7 consultation is patches, and account for the dynamic checkerspot. Of the comments we whether a Federal action may affect a nature of bay checkerspot received, 1,006 supported designation, listed species or critical habitat. Federal metapopulations, with local extinctions 24 were opposed to it, and 7 provided water contracts and operations that meet and recolonizations.’’ information or declined to oppose or this criterion are required to consult. This reviewer made extensive support the designation. Similar Sales or leasing of property will only be comments about nitrogen deposition, comments were grouped into four subject to consultation on critical stating that the preponderance of general issues relating specifically to the habitat when a Federal agency is scientific evidence and opinion is that proposed critical habitat determination funding, authorizing, or carrying out the the serpentine grasslands in question and draft economic analysis on the action, and the sale or lease may affect are highly sensitive to nitrogen proposed determination. These are critical habitat. additions, that nitrogen deposition can addressed in the following summary. (3) Comment: One commenter said lead to degradation of habitat, and that that if the Service is going to use excess nitrogen deposition from smog Issue 1: Biological Justification, fragmentation as a reason for may be the single biggest immediate Methodology, and Regulatory designating critical habitat (Background threat to the bay checkerspot. Comments section), it should develop a The reviewer also stated that well- (1) Comment: One commenter stated quantitative assessment of how much managed grazing is vital to the recovery that the Service should concentrate its fragmentation has taken place. Are the of the bay checkerspot, specifically critical habitat efforts for the bay urban developments replacing mentioning public lands in the Santa checkerspot on those sites where the woodlands, chaparral, or other habitats Teresa Hills unit as being in need of bay checkerspot exists and which, between areas of serpentine grassland a grazing to reverse deteriorating habitat therefore, truly provide potential detriment or a benefit to the bay quality. He estimated that one formerly conservation benefits to the subspecies. checkerspot? These developments may degraded site in the Silver Creek unit Our Response: We did concentrate on be a detriment, because of reduced recovered and greatly increased host occupied sites, and have only included resting area, increased obstacles, and plant and nectar plant density in about unoccupied sites where they are pesticide; however, they could be a five years of grazing. We concur that essential to the conservation of the benefit by reducing predatory birds. The recovery of habitat quality with grazing subspecies. The unoccupied sites are commenter also asked the Service to is feasible and documented. essential, as described in the bay consider and insert why butterflies may The reviewer stated that checkerspot’s Recovery Plan (Service be avoiding wooded or scrub habitats, as Communications Hill in its current state 1998), because of the metapopulation this may be a predator avoidance is unlikely to support bay checkerspot dynamics exhibited by the bay behavior. populations, but also stated that the checkerspot, and because they are Our Response: A quantitative analysis proposed unit boundaries ‘‘contain the representative of the historic of habitat fragmentation is not required remaining habitat.’’ He considers the geographical and ecological distribution to designate critical habitat, and is Communications Hill habitat relatively of the subspecies. beyond the scope of this rulemaking. It warm and dry, with few north-facing (2) Comment: A commenter was is not known why bay checkerspot slopes, degraded by lack of grazing, and concerned that the activities described butterflies appear to avoid wooded or generally of low priority relative to in the proposed rule that may affect scrub habitats. We are not aware of any higher quality habitats elsewhere. The critical habitat under section 7 scientific reports of bay checkerspots Service believes that Communications consultation were broadly defined and, exhibiting predator avoidance behavior. Hill is likely to be occupied by the bay combined with other species listings (4) Comment: One commenter said checkerspot, and we discuss why in and critical habitat designations, have the indirect effects of added nitrogen detail in our responses to public the net effect of establishing the Service deposition from increased automobile comment regarding Communications as the sole arbiter of land use decisions. traffic on plant community structure Hill, below. The reviewer suggested one It was suggested that the Service narrow need to be addressed. Concerns about additional unit in the vicinity of Canada the defined activities that may affect the effects of nitrogen deposition on the Garcia and Manzanita Ridge (west of critical habitat. The commenter also bay checkerspot were also expressed by Chesbro Reservoir, Santa Clara County), stated that water contracting and a peer reviewer. with more than 100 ha (247 ac) of operations carried out by Federal Our Response: Nitrogen oxides from serpentine and a good mix of slopes and agencies are not a direct or indirect increased automobile traffic contribute aspects. However, we lack adequate cause of loss of habitat or cause for to excess nitrogen deposition on information about this area to justify endangerment of the subspecies and, surrounding habitats. Nitrogen including it in the critical habitat therefore. should not require section 7 deposition and its effects are briefly designation at this time. The Act consultation. It was also stated that sale addressed in the Background section. provides opportunity for later revision or lease of private property does not We agree that scientific studies, such as of critical habitat designation through result in habitat loss and should be those summarized in our Recovery Plan petition procedures under section deleted from the rule. (Service 1998), show that automobiles 4(b)(3)(D). Further unit-specific Our Response: We provide the list of and many other air pollution sources comments by the third reviewer are activities that may affect critical habitat produce excess nitrogen oxides. A covered below. to assist Federal agencies when they recent study found that nitrogen We received a total of 1,037 oral and review their actions and determine deposition from air pollution on Coyote written comments during the comment whether critical habitat may be affected. Ridge, which includes the Kirby, periods. In total, oral and written The list is wide-ranging because diverse Metcalf, and Silver Creek units, is comments were received from 1 State Federal agencies have broad already likely to be at levels adversely office, 5 local governments, and 1,031 responsibilities under the Act to protect affecting serpentine plant community
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structure, with negative effects on the to identify parcel ownership, then under Required Determinations below bay checkerspot (Weiss 1999). We have information on land use on those for more information as to what modified the list of activities that may parcels would also be available. The potential Federal agencies may initiate a affect critical habitat in the section 7 designation of critical habitat appears to section 7 consultation and the types of Consultation section to address excess have skipped an important part of the activities that may be involved. nitrogen deposition more clearly, by analysis and this information should be (10) Comment: One commenter asked listing deposition as well as application included and reviewed. why we had proposed so many of fertilizers, pollutants, and other Our Response: We did not use contiguous units. He recommended a chemicals. In ongoing consultation and assessor’s parcel maps in developing single unit should be proposed for the discussions with the Corps of Engineers, our designation. Instead, subsequent to Coyote Ridge area. the Federal Highway Administration, the bay checkerspot critical habitat Our Response: These units have the City of San Jose, and the County of proposal on October 16, 2000 (65 FR distinct bay checkerspot populations Santa Clara, we are currently seeking to 61218), the County of Santa Clara sent and are connected by dispersal habitat. address the risk that excess nitrogen us a list of property owners potentially Separate units allow us to evaluate the deposition poses to the bay checkerspot interested in the designation. We effects resulting from any Federal butterfly. contacted these landowners by mail and actions on unit populations (5) Comment: One commenter said provided them the opportunity to individually, rather than lumping them that a higher proportion of the outcrops comment about the proposed rule and all together. on the peninsula than in Santa Clara draft economic analysis. Several (11) Comment: One commenter County might reasonably be proposed landowners commented on these two requested that information on the for critical habitat. documents and provided information distances the Edgewood Park/Triangle, Our Response: We are aware of, and that helped us refine our final critical Jasper Ridge, and San Bruno Mountain considered, several serpentine outcrop habitat designation. units are from other units be provided. areas on the San Francisco peninsula (8) Comment: Several commenters felt Our Response: We added distance when developing the proposed rule. that the critical habitat designation information to the narrative discussion However, the remaining undeveloped should encourage viable grazing of these units. Please see that section. area of each of these sites is small, the activities. topographic diversity is generally poor, Our Response: We agree that (12) Comment: One commenter stated and most are degraded and exposed to sustainable grazing practices are that the Service should provide significant threats, such as lying directly generally compatible with bay quantitative or qualitative measures for adjacent to an eight-lane freeway. All checkerspot habitat and conservation, the primary constituent elements. The are considered to have been unoccupied and that in some areas or at certain commenter proposed additions to and by the bay checkerspot for one or more times the removal of grazing may omissions from the primary constituent decades. actually be a threat. The rule states this elements, adding: minimum size areas (6) Comment: One commenter asked in the Background and the Effects of such as at least 1.6 ha (4 ac), north- what percentage of total bay checkerspot Critical Habitat Designation sections. facing serpentine slopes with dense habitat is included in the critical habitat (9) Comment: A commenter asked stands of Plantago erecta, a diversity of designation and how much area outside what types of development would north and nearby south- and west-facing this designated area is likely to contain typically be allowed in critical habitat slopes, at least 152 m (500 ft) in bay checkerspot. areas, what would be the threshold that elevation, and serpentine soil; and Our Response: We do not currently would trigger a Federal permit, what omitting pollinators, stable holes, or have comprehensive figures on the total Federal agencies would be involved in cracks in soil, and wetlands. area or location of bay checkerspot issuance of these permits, to which Our Response: The ‘‘may affect’’ habitat or the status of all bay agencies would the county refer criterion that triggers Federal agencies checkerspot populations. In our development applications, and what to consult under section 7 of the Act is estimation, this critical habitat typical mitigation measures would be a broad, qualitative standard. We designation includes the majority of required in a development proposal to believe that precise quantitative remaining bay checkerspot habitat in ensure adequate habitat protection. standards for habitat are unnecessary Santa Clara and San Mateo counties, Our Response: There is no such thing and would overstate the scientific and an even higher proportion of as a Federal permit for development in understanding of the bay checkerspot, currently existing bay checkerspot critical habitat units. Critical habitat its environments, and its needs. For populations. However, bay checkerspot identifies specific areas that have the example, Plantago erecta densities vary populations and suitable habitat do physical and biological features that are greatly from year to year, and what bay exist outside of designated critical essential to the conservation of a listed checkerspot larvae need for a ‘‘dense’’ habitat. For example, bay checkerspot species, and that may require special stand of Plantago erecta has not been butterflies exist in a locality on management considerations or documented. We have reviewed and serpentine soils near Uvas Reservoir in protection. Federal agencies are made alterations in the wording of the Santa Clara County, and at several other required to consult with us only if an primary constituent elements serpentine outcrops west of the foothills action they are authorizing, funding, or designation, and we believe the final of the Santa Clara Valley. We did not carrying out, in whole or in part, may language suitably captures the needs of include these areas in critical habitat affect critical habitat. We do not believe the subspecies in a manner that will be because available data do not indicate any new county procedures for critical useful to Federal agencies in they are essential to the conservation of habitat would be required beyond what determining whether actions they fund, the subspecies, or because we lack the county should already have in place authorize, or carry out may affect sufficient information on the localities to protect the threatened bay critical habitat. to make a determination. checkerspot butterfly. Refer to the (13) Comment: One commenter felt (7) Comment: One commenter said section above that discusses section 7 or some of the primary constituent that if assessor’s parcel numbers were the Regulatory Planning and Review elements were either difficult to identified or assessor’s maps were used and Regulatory Flexibility Act sections measure, or are considered generally
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unimportant for the subspecies, such as contain one or more of the primary public information function. Non- wetlands. constituent elements. Federal parties may also elect to use Our Response: We provide (16) Comment: A commenter stated critical habitat maps to inform their justification for the primary constituent that many farmers and ranchers are decision-making, direct funding, or elements stated above (see Background concerned that their current agricultural guide large-scale planning and section). We also provided citations practices could be impacted. They fear conservation efforts. Critical habitat stating the importance of wetlands to cropping patterns, water conservation, designation does not set aside lands or the bay checkerspot. For example, the and other practices may be limited with funds to acquire lands. article cited regarding occasional the critical habitat designation because (19) Comment: One commenter stated wetland use by bay checkerspot (Launer these practices may now impact the bay that it is important that the Service use et al. 1993) is co-authored by six well- checkerspot. the Act to exercise control over Federal known ecologists and biologists, and Our Response: With the changes made projects and analyze the direct and states ‘‘our observations are consistent from the proposed rule, very little, if indirect impacts on the bay checkerspot, with the hypothesis that (bay any, crop land remains within the especially for those projects that only checkerspot) butterflies are visiting critical habitat boundaries. Normal indirectly impact the bay checkerspot moist areas in order to replenish ranching practice will be unaffected by and its habitat. essential nutrients or water expended bay checkerspot critical habitat Our Response: We, and other Federal during mating, gamete (egg or sperm) designation. agencies, are required under the Act to production, or general metabolism.’’ (17) Comment: A commenter consider all effects, direct and indirect, They go on to say that local population representing certain landowners in the to listed species and critical habitat of persistence may be enhanced by moist area of the proposed Kalana Hills unit actions subject to Federal authorization, areas, and that canyon bottoms and said substantial areas were included funding, or control, including the moist areas may need to be considered within the borders of the proposed indirect effects of those actions. in conservation planning for the bay critical habitat area that clearly lack any (20) Comment: One commenter checkerspot. of the primary constituent elements for believed that it is important for the (14) Comment: One commenter the bay checkerspot. For instance, the Service and the U.S. Department of objected that the size of patches of host Service included area that is non- Agriculture’s Natural Resource plants and the average density of serpentine and presently in cultivation Conservation Service (NRCS) to Plantago erecta are not provided for any in Kalana Hills unit. coordinate on use of plants for of the units, even though data exist for Our Response: There is no landscaping of projects. many. The minimum patch size of requirement that all of the area within Our Response: If the NRCS is placing, Plantago erecta necessary to support a critical habitat boundaries support the funding, or recommending the population of bay checkerspot should primary constituent elements; to the placement of plants in or near bay also be provided. contrary, critical habitat regulations checkerspot critical habitat, it must Our Response: While we would be explicitly state that intervening or consider whether its actions may affect interested in reviewing the data on surrounding areas not capable of the subspecies or critical habitat. We are Plantago erecta referred to in the supporting the subspecies may be prepared to consult informally or comment, Plantago erecta is an annual included within designated critical formally with NRCS on their plant plant whose year-to-year abundance is habitat for purposes of describing a recommendations. strongly affected by abiotic and biotic readily identifiable boundary and (21) Comment: One commenter stated environmental conditions. As such, providing adequate consideration to a that critical habitat designation will information on its present abundance is spatially complex mix of area with and facilitate proper evaluation of not necessarily a good indicator of without habitat (50 CFR 424.12(c), (d)). development proposals and plans. One conditions next year or over the long Furthermore, space for dispersal commenter stated the Service run. Regarding the minimum amount of between habitable areas is a primary inaccurately downplayed the difficulty Plantago erecta needed to support a constituent element of bay checkerspot of the normal regulatory process and population of bay checkerspot, we are critical habitat. Nevertheless, within that the critical habitat designation not aware of any studies in the literature these requirements under the Act and requires additional regulatory review of what this amount might be. Also, the with more detailed information and analysis under State and local laws. mobility and metapopulation dynamics provided during the comment period, The commenter stated that this should of the bay checkerspot would need to be we have modified the Kalana Hills unit be acknowledged in the rule. considered in evaluating the relevance boundary, eliminating over 80 ha (200 Our Response: Critical habitat of the size of any particular patch of ac) of agricultural lands lacking the designation does not provide for a food plants. primary constituent elements from the wholesale environmental evaluation of (15) Comment: One commenter asked unit. proposed development projects. If a whether the Service will require all of (18) Comment: Many commenters Federal agency funds, authorizes, or the proposed primary constituent mentioned possible benefits of carries out an action that may affect elements to be present, or only one or designating critical habitat. Items critical habitat for the bay checkerspot, two to qualify a site as critical habitat. suggested include facilitating proper the Act requires that the agency consult Our Response: We clarified the evaluation of development proposals with us under section 7 of the Act. For language regarding the primary and plans, helping with acquiring more a project to affect critical habitat, it must constituent elements in the final rule lands to be protected, increasing the affect the habitat features important to (see the Primary Constituent Elements chances of funding of scientific projects, the bay checkerspot, which are defined section of this rule). All areas within the and furthering the development of an in the regulation section in this final legal descriptions are considered critical HCP for Santa Clara County. rule. Projects lacking a Federal nexus do habitat except for existing manmade Our Response: While none of these not require any additional regulatory features and structures, such as items are required by critical habitat, we review and analysis under Federal laws, buildings, roads, railroads, and urban acknowledge that critical habitat and we are not aware of any additional development. All critical habitat areas designation can serve as an important regulatory review and analysis under
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State or local laws for designated critical 2001. We conducted outreach by habitat areas originally proposed, we habitat. notifying affected elected officials, local changed the boundaries of certain (22) Comment: A commenter stated jurisdictions, interested groups, and critical habitat areas and excluded lands that the section on Relationship to property owners. We conducted much from the final designation that we Habitat Conservation Plans does not of this outreach through legal notices in determined to be nonessential to the explain a benefit to the Santa Clara regional newspapers, telephone calls, conservation of the bay checkerspot. We Valley Water District or to the letters, and news releases faxed and/or also complied with the District Court’s subspecies if the District develops an mailed to affected officials, local order, which required us to make a final HCP. He recommended we rewrite the jurisdictions, and interest groups, and decision on critical habitat for the bay section to establish good linkage to the publication of the proposed checkerspot by April 20, 2001. benefits to the subspecies and the use of determination and associated material (25) Comment: One commenter stated HCPs. on our Regional Internet page. We that the public hearing location chosen Our Response: HCPs reduce conflicts announced the availability of the draft by the Service in Newark, California, between listed species and the economic analysis in the Federal limited public input compared to economic use or development activities Register on February 9, 2001, and having a public hearing closer to of a particular piece of land. By opened a public comment period from property owners affected by the critical developing an HCP, an individual, February 9, 2001, to March 12, 2001, to habitat designation. Another commenter agency, or organization can reduce the allow for comments on the draft requested the Service hold a public burden of the Act by providing an economic analysis and additional hearing in San Jose to address local efficient mechanism for compliance comments on the proposed comments and questions. with it, while at the same time, determination itself. We provided Our Response: We recognize that the providing for the conservation of one or notification of the draft economic location selected for a public hearing more species. One of the great strengths analysis through telephone calls, letters, may be more problematic for some of the HCP process is its flexibility, as and news releases faxed and/or mailed individuals who may want to attend they can vary greatly in size and scope. to affected officials, local jurisdictions, than another location. In this case, we Each HCP is unique, with its own set of and interest groups. Due to the court attempted to select a central location for issues and objectives. ordered deadline, we were not able to the public hearing that was roughly As mentioned in the Relationship to reopen the comment period a third time. equally accessible to all parties Habitat Conservation Plans section, We prepared the proposed and final potentially interested in the proposed section 4(b)(2) of the Act allows us rules based upon the best scientific and critical habitat designation, including broad discretion to exclude from critical commercial information available to us parties from San Francisco and the East habitat designation areas where the from all sources at the time. We Bay, south to San Martin and southern benefits of exclusion outweigh the reviewed and treated, with equal Santa Clara County; so we held the benefits of designation, provided the weight, all of the oral and written public hearing in Alameda County. In exclusion will not result in the comments received from various parties, addition to the public hearing, we held extinction of the species. We believe regardless of their affiliation. Also, see a public information meeting in San that in most instances, the benefits of our response to comment 7. Jose, Santa Clara County, and the excluding HCPs from critical habitat (24) Comment: Several commenters comment period was re-opened from designations will outweigh the benefits requested that the proposal be February 9 to March 12, 2001. Due to of including them. For a species, an withdrawn and reissued. One the time constraint under the court approved HCP would provide certain commenter stated the withdrawn order, we could schedule only one measures to benefit the species and its proposal should be redrafted after public hearing in Newark, California, on habitat. For the landowner, it would completion of the economic analysis. October 30, 2000. ensure that no additional land use Another commenter stated that (26) Comment: Several commenters restriction or financial compensation withdrawal and reissuance of the requested the Service to reopen the would be required for the term of the proposal was needed to be in comment period for a sufficient time permit. compliance with the Act and the period to allow meaningful comment on Our rationale for excluding HCPs is Administrative Procedure Act (APA). the proposed designation or the provided in the Relationship to Habitat Our Response: We have complied economic analysis. Conservation Plans. For additional with the APA and Act during this Our Response: While we may have information regarding the specifics of rulemaking. We prepared and published preferred to extend or reopen the developing an HCP, please contact our a proposed rule and a draft economic comment period, if requested, we have Sacramento Fish and Wildlife Office analysis and solicited comments from complied with the regulations under 50 (see ADDRESSES) section. private parties and public agencies on CFR 424.16(c) (2) and (3) where it states both documents. We reviewed all that we shall have the comment period Issue 2: Legal and Procedural Comments comments received either in writing or open for at least 60 days and we shall (23) Comment: The Service failed to at public hearings and have responded hold one public hearing. Given the consult with citizens affected by the to these comments in the preparation of constraints imposed by the Court, we designation during preparation of the this final rule. Where site-specific made an effort to exceed our statutory proposed rule and gave deference to documentation was submitted to us obligations. Following the publication environmental groups. providing a rationale as to why an area of the proposed critical habitat Our Response: Following the should not be designated critical determination on October 16, 2000, we publication of the proposed critical habitat, we evaluated that information opened a 60-day comment period which habitat determination on October 16, in accordance with the definition of closed on December 15, 2000. We 2000, we opened a 60-day comment critical habitat pursuant to section 3 of conducted outreach by notifying period, which closed on December 15, the Act and made a determination as to affected elected officials, local 2000. We held one public hearing on whether modifications to the proposal jurisdictions, interested groups, and October 30, 2000, and one public were appropriate. While not actually property owners. We conducted much information meeting on February 22, deleting any of the proposed critical of this outreach through legal notices in
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regional newspapers, telephone calls, Mountain, and Kirby) should be (31) Comment: One commenter stated letters, and news releases faxed and/or considered, because critical habitat the critical habitat designation for the mailed to affected officials, local designations should be based only on bay checkerspot is based on the wrong jurisdictions, and interest groups, and bay checkerspot occupancy, information standard (i.e., a ‘‘recovery’’ standard) by publication of the proposed about the subspecies and habitats, and including suitable and potential habitat determination and associated material economic considerations existing ‘‘at that the Service deems is useful for the on our Regional Internet page. We the time of listing.’’ subspecies’ recovery. The commenter announced the availability of the draft Our Response: We did not designate stated that this ‘‘recovery’’ standard is economic analysis in the Federal critical habitat at the time of listing much broader than the standard that Register on February 9, 2001, and re- because we found that it was not Congress contemplated in enacting the opened the public comment period from determinable at that time. The courts Act and subsequent amendments. February 9, 2001, to March 12, 2001, to have now ruled we must finalize a Our Response: We have used the allow for comments on the draft critical habitat determination for the correct standard for critical habitat as economic analysis as well as additional subspecies. Restricting our defined in section 3(5)(A) of the Act— comments on the proposed consideration of critical habitat to what (i) the specific areas within the determination itself. During this time, was known about the subspecies in geographic area occupied by a species, we also held one informational meeting. 1984 (the first proposed rule) or 1987 at the time of listing in accordance with We provided notification of the draft (the time of listing) would return us to the Act, on which are found those economics analysis through telephone the situation in which we found critical physical or biological features (I) calls, letters, and new releases faxed habitat undeterminable, and would essential to the conservation of the and/or mailed to affected elected ignore the intervening 16 years of species and (II) that may require special officials, local jurisdictions, property accumulation of extensive scientific management considerations or owners, and interest groups. Since this data about the bay checkerspot. We are protection and; (ii) specific areas rule is under a court ordered deadline, required by the Act (sections 4(b)(2) and outside the geographic area occupied by we were not able to reopen the comment 4(b)(6)(C)(ii)) to base our determination a species at the time it is listed, upon period a third time. We believe that we on the best scientific data available at a determination that such areas are provided the interested parties the present moment of critical habitat essential for the conservation of the sufficient time to comment on this rule designation. species. The term ‘‘conservation’’ as defined in section 3(3) of the Act, means and we conducted sufficient outreach (30) Comment: One commenter stated ‘‘the use of all methods and procedures on this notice. that the rule does not provide sufficient (27) Comment: Several commenters which are necessary to bring any information on which a critical habitat stated that the Service violated the endangered species or threatened determination can be premised. The National Environmental Policy Act of species to the point at which the proposed designation is not properly 1969 (NEPA) by failing to prepare an measures provided pursuant to the Act supported by the best scientific and Environmental Impact Statement for the are no longer necessary’’ (i.e., the designation of critical habitat for the bay commercial data available. The Service species is recovered and removed from checkerspot butterfly. makes numerous and varied the list of endangered and threatened Our Response: We have determined unsupported assertions regarding the species). The Recovery Plan for the bay that an Environmental Assessment and/ biology and habitat requirements of the checkerspot provides a description of or an Environmental Impact Statement bay checkerspot. In proposing several habitat attributes that are essential to the as defined by NEPA need not be ‘‘primary constituent elements’’ of survival and recovery of the subspecies prepared in connection with regulations critical habitat for the bay checkerspot, (Service 1998). adopted pursuant to section 4(a) of the the Service offers no evidentiary (32) Comment: One commenter stated Act as amended. We published a notice support for the elements chosen (except the Act requires the Service to designate outlining our reason for this in isolated instances). The Service failed adequate habitat for conservation of the determination in the Federal Register to specify what lands are ‘‘occupied’’ subspecies. The Act defines on October 25, 1983 (48 FR 49244). based on best scientific data available. conservation as recovery. Since the (28) Comment: Three commenters Our Response: The descriptions of the Recovery Plan (Service 1998) for the bay said that in order to comply with the primary constituent elements for the bay checkerspot identifies the need for statutory definition of critical habitat, checkerspot are based on a compilation populations in Contra Costa and the Service should specifically exclude of data from peer reviewed published Alameda Counties, the Service should those portions of the proposed literature, unpublished or non-peer add critical habitat in those counties. designation that are not essential to the reviewed survey or research reports, the Our Response: We considered conservation of the subspecies in the Recovery Plan (Service 1998), and proposing critical habitat in Contra final rule. biologists knowledgeable about the Costa and Alameda Counties. However, Our Response: We have determined subspecies and its habitat. The primary while the Recovery Plan (Service 1998) that the areas designated as critical constituent elements, as described, identifies the need to reestablish habitat within this final rule are represent our best estimate of those populations of the bay checkerspot essential to the conservation of the bay habitat features that are essential to the butterfly in the east bay to fully recover checkerspot. With improved subspecies. In our response to specific the species, it does not identify specific information since the proposed rule, comments, and in other pertinent areas, areas where such populations should be however, we did exclude lands that are we have listed citations where it is reestablished. We lacked sufficient not essential to the conservation of the necessary or appropriate. Also, a copy of information to indicate which particular bay checkerspot in this final rule from all supporting documentation used in areas in the east bay are essential for the five units. the development of this determination conservation of the species. We believe (29) Comment: A commenter stated is in the administrative record and it is not appropriate to designate critical that only the four areas originally available for inspection at the habitat in areas without such proposed as critical habitat in 1984 Sacramento Fish and Wildlife Office information. The Act provides for (Edgewood, Jasper Ridge, San Bruno (see ADDRESSES section). revisions to critical habitat designations
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when necessary, and we intend to Our Response: The commenter of the opportunity to comment again. continue working with the California appears to be using the term We believe the information that we Department of Parks and Recreation and ‘‘cumulative impacts’’ in the context of made available and provided to the other stakeholders on opportunities to NEPA. This is not appropriate in public was sufficiently detailed for possibly reintroduce the bay determining the critical habitat needs of informed public comment. checkerspot butterfly in appropriate the listed species. We are required to (36) Comment: Several commenters locations in the east bay. Should these consider the effect of the proposed stated the Service avoided a statutory efforts identify additional areas that may government action, which in this case is obligation to determine whether the meet the definition of critical habitat the designation of critical habitat for the benefits of excluding particular areas (i.e., areas that are both essential to the bay checkerspot. The appropriate from critical habitat designation conservation of the species and that baseline to use in an analysis of a outweigh the benefits of including each require special management), we will Federal action, which in this case is the area. consider proposing a revision to this designation of critical habitat for the bay Our Response: Section 4(b)(2) of the critical habitat designation at that time checkerspot, is the way the world would Act allows us to exclude from critical or when our resources allow. look absent the proposed regulation. habitat designation areas where the (33) Comment: One commenter stated Against this baseline, we attempt to benefits of exclusion outweigh the that the Service failed to make findings identify and measure the incremental benefits of designation, provided the required by law before including costs and benefits associated with the exclusion will not result in the unoccupied areas as designated critical government action. Because the bay extinction of the species. We base our habitat for the bay checkerspot. The checkerspot is already a federally decision to exclude an area from critical commenter said that the Service appears protected species, any effect this listing habitat designation on the best scientific to have designated the entire has on the regulated community is data available, and taking into geographical area that can be occupied considered part of the baseline scenario, consideration the economic impact of by the bay checkerspot without making which remains unaffected by our critical specifying any particular area as critical the findings required by law for making habitat designation. habitat. We completed an economic an exception to the statutory prohibition (35) Comment: One commenter analysis, and considered the results of this analysis and comments received on against making such a broad requested that the critical habitat the analysis and the critical habitat designation. Another commenter urged proposal be withdrawn and reissued proposal in the section 4(b)(2) weighing the Service to respect the Act’s with more precisely delineated critical process. We used the section 4(b)(2) distinction between critical habitat and habitat area boundaries, including process in evaluating whether the areas the geographic habitat of the bay deletion of improperly proposed units, covered by the San Bruno Mountain and checkerspot. after completion of the economic analysis. The boundaries include PG & E HCPs should be excluded from Our Response: In proposing critical developed areas, which are not bay this critical habitat designation. The San habitat for the bay checkerspot, we checkerspot butterfly habitat. Two other Bruno Mountain HCP area was included identified those areas that are essential commenters asserted that the proposed because the HCP does not cover bay to the conservation of the subspecies. critical habitat boundaries were not checkerspot butterfly, and the PG & E The areas we proposed to designate as described in sufficient detail for HCP area was included because the HCP critical habitat provide all of those landowners to locate them precisely. is due to expire in November 2001. habitat components essential for the One stated that the proposed These HCPs are discussed further in the primary biological needs of the bay designation failed to designate ‘‘specific Relationship to Habitat Conservation checkerspot described in the Recovery areas’’ as critical habitats required by Plans section. Plan (Service 1998), and defined by the the Act. One commenter stated that the Issue 3: Site-Specific Comments primary constituent elements. Service failed to precisely describe the The definition of critical habitat in lands to be designated as critical habitat (37) Comment: Several commenters section 3(5)(A) of the Act includes, and thus violated the notice and felt that the bay checkerspot butterfly ‘‘specific areas outside the geographic comment provisions of the does not inhabit Communications Hill area occupied by a species at the time Administrative Procedure Act. and, therefore, this unit should not be it is listed, upon a determination that Our Response: All critical habitat designated as critical habitat. They said such areas are essential for the boundaries were specific and precisely that surveys at the site between the mid- conservation of the species.’’ After delineated in the proposed rule and 1980s and 2000 have failed to locate any weighing the best available information, were publicly available as text of the subspecies. Some commenters including the Recovery Plan (Service descriptions and printed maps. In noted that, although a single bay 1998), we conclude that the areas addition, we provided the boundaries in checkerspot was observed in 1992, by a designated by this final rule that lie geographic information systems (GIS) bay checkerspot butterfly specialist, outside the geographic area occupied by format to anyone who requested them. they believed it was either misidentified the subspecies at the time it was listed All units were properly proposed and or a transient individual. Seven are essential for the recovery of the were presented in detail allowing commenters believed that there is no subspecies and its subsequent removal anyone with a standard topographic suitable habitat for the bay checkerspot from the List of Endangered and map to locate the boundary (50 CFR on Communications Hill and it should, Threatened Species. As is stated in this 424.12(c)). It should be noted that the therefore, not be designated as critical final rule, we have not designated all precise boundaries are given in the legal habitat. Five commenters believed that areas currently occupied, potentially descriptions at the end of the rule, not the quarry on Communications Hill was occupied, or historically occupied by in the narrative comments in the not historic bay checkerspot butterfly the bay checkerspot as critical habitat. preamble. The draft economic analysis habitat nor could it be restored to (34) Comment: One commenter stated was made available after some of the suitable habitat. that the Service did not identify and comments were received; all earlier Our Response: We do not concur with discuss the cumulative impacts of commenters were provided a copy of the belief that the bay checkerspot critical habitat designation. the draft economic analysis and notified butterfly does not inhabit
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Communications Hill. In the past, the population may generate no adults at all provide data conclusively bay checkerspot has been observed at under poor environmental conditions demonstrating it is not present, its the site, as well as both of its foodplants (Service 2001). It is likely the bay biology, as well as the mobility of the and adult nectar plants. While a number checkerspot butterfly, a subspecies of subspecies and the presence of nearby of surveys of widely varying duration the same species, possesses this same populations, we believe that it is highly and quality were conducted between the life-history trait (Service 1998). likely that Communications Hill is mid-1980s to 2000, it does not appear There are numerous studies inhabited by the subspecies. possible to definitively conclude the documenting that the bay checkerspot In reference to the quarry, we are subspecies is not present at butterfly possesses a ‘‘metapopulation unaware of any specific data indicating Communications Hill. This is because type’’ of distribution and population if the quarry site was inhabited by the adequate surveys have not been structure. A metapopulation is a bay checkerspot prior or subsequent to conducted over the entire flight season network of semi-isolated populations the substantial earth-removing in all suitable areas on Communications with some level of regular or operations, but the area does contain Hill for an adequate time period, and intermittent migration and gene flow some of the primary constituent thus likely would have missed the among them, in which populations may elements (serpentine soils, areas of subspecies if they emerged early, late, or disappear, but then are recolonized by Plantago, and nectar plants). Efforts and had a short adult flight season. The dispersing individuals from other experiments involving the restoration of Draft Supplemental Environmental populations. Other populations of this similar, severely disturbed serpentine Impact Report for the Communications subspecies are known from the habitat for the bay checkerspot and Hill Kaufman Broad Residential Project, immediate vicinity at Santa Teresa plants have been underway at the dated November 2000, stated that ‘‘A County Park, Tulare Hill, Silver Creek, sanitary landfill at Kirby Canyon for check with biologists monitoring the Kirby Canyon, and the Morgan Hill area. several years and are showing promising bay checkerspot butterfly during its The bay checkerspot butterfly also was results. 2000 flight season revealed that the intentionally released at 38 sites that (38) Comment: One commenter stated earliest adults were observed on March contain serpentine grassland in Santa that Communications Hill should be 10th at other locations, with adults Clara County (Harrison 1989). It is not analyzed in terms of its connection to being most active at most locations known if any of these releases resulted other proposed critical habitat units and sometime during the week of March in the establishment of permanent the ability of the bay checkerspot 13th. No butterflies were seen after the populations, however, individuals were butterfly to disperse to it over time. week of April 17th.’’ Given the tardiness observed at four of the 38 sites two years Our Response: Normal within-habitat in initiating the field work in 2000, the after the releases occurred (Harrison movements by bay checkerspot most recent survey on Communications 1989). butterflies are typically less than 150 Hill may have missed adult bay Communications Hill contains all of meters (490 feet) between recaptures checkerspot butterflies at the site. the primary constituent elements of (Ehrlich 1961, 1965; Gilbert and Singer Populations of the bay checkerspot critical habitat for the bay checkerspot 1973). Harrison (1989) recaptured 5 butterfly undergo dramatic fluctuations butterfly: open grassland, larval percent of bay checkerspot butterflies at that may be unexpected by foodplants, adult nectar sources, soils distances greater than 1 km (0.6 mi) entomologists and other biologists. For derived from serpentinic rock, stable from the point of release of the example, based on the results of a holes or cracks in the soil, wetlands that individuals marked/recaptured. survey conducted in 1987, an may provide moisture during times of However, long-distance dispersal has entomologist concluded that a proposed spring drought, space for dispersal, and been documented as far as 7.6 km (4.7 residential development at Silver Creek relatively varied topography (Arnold mi) (Service 2001), and 5.6 km (3.5 mi) would not adversely affect the bay 2000). Communications Hill is only 3.2 for one male, and 3.2 km (2 mi) for one checkerspot butterfly, given its ‘‘low’’ km (2 mi) from the Silver Creek unit and female (Harrison 1989). population size (Dennis Murphy in litt.; 5 km (3 mi) from the Santa Teresa Hills Long-distance habitat patch D. Murphy, pers. comm.). However, in unit, both recently documented to be colonization may be achieved within a the time period from 1987 to 1990, the occupied by the bay checkerspot. Both single season through the long-distance bay checkerspot dramatically increased are within documented dispersal dispersal of individual butterflies, or the size and extent of their population distances of the subspecies. The bay over several seasons through stepping- at this location, and more checkerspot seen on Communications stone habitat patch colonization events. comprehensive studies at the site Hill in 1992 was identified by an In a study of the Morgan Hill bay determined that the serpentine habitat experienced biologist with extensive checkerspot butterfly island-mainland at that location was very important for field research on the bay checkerspot. It type metapopulation, no colonizations the subspecies. is much more probable that this of unoccupied habitat patches further The eggs, larvae, and pupae of the bay butterfly was a member of a low-density than 4.5 km (2.8 m) from the source checkerspot butterfly are difficult to resident population than that it was a population were detected over a 10-year locate in the field (R. White 1986 (87)). ‘‘transient,’’ given that dispersal is a rare period (Harrison et al. 1988). A In addition, the ability of larvae of a event and the chances of one biologist mathematical model, of unknown related taxa, the endangered quino observing one transient butterfly on one accuracy, predicted satellite habitat checkerspot butterfly (Euphydryas day are very small, whereas the chances patches at a distance greater than 6 to editha quino), to become dormant of seeing a member of a low-density 8 km (4 to 5 mi) from large source during adverse environmental resident population is quite reasonable. populations were not likely to support conditions (aestivate) is well Therefore, given the presence of populations of the bay checkerspot documented and they likely are able to suitable serpentine habitat and other butterfly (Harrison et al. 1988). survive long periods of time in this state primary constituent elements of critical Communications Hill is approximately (Mattoni et al. 1997). In judging whether habitat on Communications Hill, the 3 km (2 mi) from the Silver Creek a population of the quino checkerspot observation of an adult bay checkerspot critical habitat unit, which contains the butterfly has been extirpated, it is butterfly at the site, the lack of adequate closest known bay checkerspot butterfly important to know that even a robust surveys for this subspecies that may population. Therefore, we believe that
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this habitat is suitable, reachable, and is site visit and specific information opinion for the Ranch on Silver Creek used by the bay checkerspot butterfly, provided by the landowners and their project. and warrants critical habitat consultant. The remaining critical Our Response: We have adjusted the designation. habitat area contains substantial boundary using information provided (39) Comment: Several commenters occupied areas of good-quality bay by the commenter, information present felt that Communications Hill should be checkerspot habitat close to core areas in our files, and based on site visits. See deleted because the site was not and contributes to the Santa Clara the narrative description of the unit, mentioned in the Recovery Plan for the County metapopulation. We, therefore, above, and the map and legal bay checkerspot butterfly. consider this area essential to the description of the unit, below, for Our Response: Communications Hill conservation of the bay checkerspot. specifics. is ranked as ‘‘other current or historic (43) Comment: One commenter (46) Comment: One commenter localities or suitable habitat areas’’ on suggested we expand the Kalana Hills requested we remove approximately 365 page II–203 of the Recovery Plan unit southward to include an area of ha (900 ac) actively being used as a golf (Service 1998). In addition, the site is habitat south of San Bruno Canyon that course and a landfill in the Kirby unit listed on Table IV–1 of the Recovery supports Plantago erecta and nectar from the final critical habitat Plan as a site that is targeted for the plants. Another commenter designation. These properties have been protection of the bay checkerspot, the recommended that the western the subject of previous understandings endangered Santa Clara Valley dudleya boundary of the San Bruno Mountain with various resource agencies (Dudleya setchellii), and other species. unit should extend west to just before including the Service. The landfill is Thus, we determined that this unit is the summit area; some of the best highly disturbed, and the golf course is essential for the conservation of the bay remaining stands of Plantago are in not high-quality bay checkerspot checkerspot butterfly. large native grassland patches west of habitat. (40) Comment: The area west of State the western transmission line. Historical Our Response: We requested but did Route 87, Communications Hill unit, records along the ridgetop may not fully not receive information from the should be deleted from critical habitat describe the bay checkerspot’s commenter regarding the exact designation. The area south of the water distribution on San Bruno Mountain. boundaries of the golf course. The final tanks has been developed into houses. The 500-foot contour limit also needs to rule explicitly states that existing Our Response: We requested, but did be investigated; some grasslands below developed areas will not be subject to not receive, more precise information on that contour may have Plantago stands, consultation on critical habitat because the location of the developed area the especially in Owl and Buckeye canyons. they do not contain the primary commenter discusses. This development Also, a commenter suggested that the constituent elements, so in the absence was begun after the 1999 SPOT satellite southeast boundary of the San Vicente- of information we felt it was most imagery we used to refine our proposed Calero unit excludes a finger of appropriate to leave the unit boundary boundaries. We believe, based on a visit serpentine with unknown habitat value. as proposed in this area. The landfill is to the site vicinity, that useful habitat There is a California Department of Fish ultimately to be restored to bay likely remains west of route 87. In the and Game Natural Diversity Data Base checkerspot habitat and still retains absence of specific data allowing us to record for the bay checkerspot on a substantial habitat within its permitted redraw the boundary in an informed nearby serpentine outcrop of nearly borders, so critical habitat designation manner, and because the rule explicitly equal size. in this area would ensure that any states that existing developed areas do Our Response: We lack adequate Federal involvement considers bay not provide the primary constituent information about these areas to allow a checkerspot habitat. We will work with elements and will not be subject to critical habitat designation at this time. the landowner and the landfill operator consultation, we believe it is most The Act provides opportunity for later to evaluate the status of prior biological appropriate to leave the boundary revision of critical habitat designation opinions and complete further unchanged in this area. through petition procedures under consultation if any is required. (41) Comment: A commenter stated section 4(b)(3)(D). (47) Comment: A commenter noted that habitat restoration is needed in the (44) Comment: Several commenters that the northwest boundary of the San Edgewood Park/Triangle unit. requested that the Service adjust the Felipe unit excludes some serpentine, Our Response: We have sought to eastern boundary of the Kirby Unit of and if deemed good grassland habitat, it encourage and facilitate appropriate the critical habitat designation. The should be included. native habitat restoration efforts in this landowner provided specific, Our Response: We believe, based on and other units, and will continue to do identifiable coordinates for an adjusted serpentine soils mapping, satellite so. boundary and information confirming imagery, and visits to the vicinity, that (42) Comment: We received that the area excluded by their the excluded area referred to has been comments stating that the proposed adjustment does not support the developed for housing. Kalana Hills unit should be eliminated primary constituent elements. (48) Comment: A commenter stated entirely, because it is not listed as either Our Response: We believe the that it is unknown whether any part of a ‘‘core habitat area’’ or ‘‘potential core recommended boundary changes to the units 7 (Kalana Hills), 13 (San Vicente- area’’ within the Recovery Plan (Service Kirby Unit is reasonable and would not Calero), or 14 (Santa Teresa Hills) 1998), or because it is not certain to be remove any useful areas containing currently support bay checkerspots, let presently occupied. If not eliminated, primary constituent elements. We have alone a large and viable persistent the commenters requested that the incorporated these changes in the final population. Neither the proposed rule boundaries of the proposed Kalana Hills rule. nor economic analysis state how much Unit should be refined to conform to (45) Comment: A commenter area within the Kalana Hills unit is natural land features and to a voter- requested that the Service change the currently occupied by the bay approved urban growth boundary Silver Creek unit, to allow development checkerspot, and the majority of it is initiative. in the 340-acre portion and exclude likely unoccupied. Our Response: We have modified the development in the 240-acre preserve Our Response: Bay checkerspots have Kalana Hills unit boundary based on a area as stated in the Service’s biological been found in all three units. Especially
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considering the dramatic population make an informed decision concerning attribute all such changes in the scope swings that are normal for this the designation of the final rule. of a development project, along with subspecies, present population size or (50) Comment: Several commenters associated project delay costs, to critical extent are not the only relevant, or even stated that the draft economic analysis habitat when numerous other factors particularly important, factors in is flawed because it is based on an frequently contribute to these changes. assessing the conservation value of a improper definition of occupied lands. While it is true that development given habitat area. Each of these units Our Response: The determination of activities can adversely affect has extensive areas of good habitat, is whether or not proposed critical habitat designated critical habitat, we believe close to other habitat areas, has a record is within the geographic range occupied that our future consultations regarding of occupation, and can serve as a by the bay checkerspot is part of the new housing development will take ‘‘stepping stone’’ in bay checkerspot biological decision-making process and place because such actions have the metapopulation dynamics, which is lies beyond the scope of an economic potential to adversely affect a federally why the Recovery Plan (Service 1998) analysis. For a discussion of the listed species. We believe that such and this rule consider them essential to biological justification of why we planned projects would require a the conservation of the subspecies. believe the areas being designated are section 7 consultation, regardless of the within the geographical areas occupied critical habitat designation. Again, as we Issue 4: Economic Comments by the bay checkerspot, see our response have previously mentioned, section 7 of (49) Comment: Many commenters to comments on Issue 1: Biological the Act requires Federal agencies to believed that we failed to properly Justification, Methodology, and consult with us whenever actions they consider the economic and other Regulatory Issues, above. fund, authorize, or carry out can impacts of designating particular areas (51) Comment: Commenters stated jeopardize a listed species or adversely as critical habitat. that the draft economic analysis modify its critical habitat. underestimated impacts to the regional Our Response: We disagree. We We also recognize that in some housing market in relation to northern believe that the draft economic analysis instances, the designation of critical California’s current housing crisis. habitat could result in a distorted real made a reasonable attempt to identify Specifically, a few commenters believed all current and future planned activities estate market because participants may that we failed to fully recognize the cost believe that land within critical habitat within proposed critical habitat. Our of project delays to homebuilders and draft economic analysis assessed designation is subject to additional consumers that would result from the constraints. In truth, this is not the case potential economic impacts from critical designation due to an expected increase because critical habitat designation for habitat designation by first identifying in section 7 consultations. One the bay checkerspot is not adding any current and future land uses within the commenter also stated that the draft extra protection, nor impacting proposed critical habitat. Our analysis economic analysis ignored various other landowners beyond that associated with then considered whether these activities financial losses homebuilders would the listing of the subspecies as were likely to involve a Federal nexus incur as a result of an expected threatened under the Act. As a result, and, if so, the likelihood that Service reduction in the number of housing we believe that any resulting distortion biologists would want to consult on the units that would be allowed to be built will be temporary and have a relatively activity over concern for the activity’s in designated critical habitat areas. Also, insignificant effect on the real estate impact on the bay checkerspot or its several commenters questioned why the market as it should become readily critical habitat. For activities identified draft economic analysis failed to apparent to market participants that by Service biologists as likely to cause provide an estimate of costs associated critical habitat for the bay checkerspot a concern, we attempted to differentiate with potential reductions in property is not imposing any additional between consultations that would take values. constraints on landowner activities place because such activities could Our Response: We are aware that beyond those currently associated with jeopardize the continued existence of a some of the land that we proposed as the listing. listed species versus those that would critical habitat for the bay checkerspot We have also found little evidence to likely take place solely because of butterfly faces significant development date to support claims by some critical habitat designation. pressure. Development activities can developers that critical habitat We characterized these effects by have a significant effect on the land and designation would have significant proposed critical habitat unit and were the species dependent on the habitat regional economic impacts. In areas able to estimate the number of likely being developed. We also recognize that where critical habitat has been incremental consultations by unit many large-scale development projects designated, economic growth has despite the uncertainties that affect are subject to some type of Federal continued to grow. For example, a study generating reliable estimates for specific nexus before work actually begins. As a released by the Coalition for Sonoran areas. It is difficult to estimate whether result, we expect that future Desert Protection examined the impact a potential future activity would require consultations, in part, will include of designating habitat for the cactus a consultation and to determine the planned and future real estate ferruginous pygmy-owl in southern degree to which critical habitat development. Arizona (McKenney 2000). Performed 1 designation influences that outcome. However, we believe that these year after the designation, the study Given these limitations, we were, resulting consultations will not take found that dire predictions made by however, able to develop a general place solely with respect to critical developers in that region have not estimate of the number of future habitat issues. While some project materialized. Specifically, high-density consultations that potentially could delays may occur out of concern for a housing development has not slowed, result from the designation of the project’s impact on the bay checkerspot, the value of vacant land has risen, land proposed rule; we assumed a worst case large real estate projects are often sales have continued, and the scenario for our analysis. We believe delayed for numerous other reasons that construction sector has continued its that this estimate, along with the include compliance with various state steady growth. characterization of activities by unit, and local ordinances and zoning Similarly, in a study conducted by provides us with enough information to regulations. It would be improper to Oliver Houck, the author reviewed over
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71,560 informal and 2,000 formal some of the same habitat. This would addition, much of the potential cost consultations conducted under the Act trigger consultations, regardless of bay associated with section 7 consultations and found that only 18 projects, or 0.02 checkerspot critical habitat designation. will already be required by the presence percent of the projects we consulted on, Because we are attempting to estimate of these other listed species. Further, were ultimately terminated (Houck potential future effects from critical this maximum cost estimate is derived 1993, p. 318). Furthermore, of the 99 habitat designation, our estimates are from a planning assumption that no jeopardy opinions issued by the Service, based on potential future activities that habitat would be preserved within the the author found that we issued are typical for the areas proposed for units; the high costs are associated with ‘‘reasonable and prudent alternatives’’ designation. off-site mitigation. Depending on the in nearly all of these opinions, which In practice, the costs associated with actual extent of mitigation required, and allowed the projects to proceed (Houck section 7 consultations can vary widely the actual final level of residential 1993, p. 319). depending on the activity, its scope, and development within the unit, we The economic analysis estimated, for areas actually affected. In our estimate that mitigation costs associated the Communications Hill unit, that Addendum to the draft economic with critical habitat designation for the given the City of San Jose’s specific analysis, we have used some of the bay checkerspot could range between plan, the unit will include between information provided by commenters to 0.07 percent and 0.6 percent of the total 2,500 and 4,000 new residential units, revise the expected section 7 value of future residential development additional commercial activities, parks, consultation costs for some areas being within the unit. and schools. Based on this plan, the designated. This revised estimate, In contrast, the conservation benefits economic analysis estimated that however, is further adjusted in our of including these units in the final between three and five large-scale Addendum to better estimate the designation are considerable. The developments may take place on this allocation of the section 7 consultation Communications Hill critical habitat unit and assumed that each of these cost that represents the incremental unit historically has been occupied by development projects could entail a effect of this designation. Overall, we the bay checkerspot and contains all of section 7 consultation. The economic believe we have reasonably estimated the primary constituent elements analysis noted, however, that it was not the potential future impacts of critical essential for the conservation of the clear whether planned development habitat designation for the bay subspecies. It also represents the would require a Federal permit, which checkerspot. northwestern-most remnant of the Santa then could trigger a section 7 (53) Comment: We received several Clara metapopulation. Such warmer, consultation. The economic analysis comments stating that the costs lower elevation sites as this are likely to also noted that several other federally associated with including the Dairy Hill be especially important to the protected species inhabit the area, and (located on the northeast portion of the subspecies during rare episodes of great as a result, could trigger section 7 Communications Hill unit) and population increase, dispersal, gene consultations, assuming a Federal nexus Communications Hill project sites flow, and recolonization of extirpated exists, regardless of bay checkerspot significantly outweighed the benefit of sites. Loss of the Communications Hill critical habitat designation. As a result, designating the sites as critical habitat. unit would likely preclude recovery and the economic analysis most likely Our Response: Section 4(b)(2) of the delisting of the subspecies, and could overestimated the number of section 7 Act requires us to designate critical reduce or eliminate the viability of this consultations that would be attributable habitat on the basis of the best scientific metapopulation, ultimately diminishing to critical habitat designation. and commercial information available, or eliminating the long-term We believe that the economic analysis and to consider the economic and other survivability of the bay checkerspot. adequately considered all the potential relevant impacts of designating a Including the unit in this critical habitat economic costs likely to be associated particular area as critical habitat. We designation will have important with potential development and may exclude areas from critical habitat informational benefits, reinforcing to provides sufficient information for the upon a determination that the benefits our Federal partners and other Secretary to make a determination of such exclusions outweigh the benefits stakeholders the importance of this area under section 4(b)(2) of the Act. of specifying such areas as critical to the conservation of the bay (52) Comment: Some commenters habitat. We cannot exclude such areas checkerspot butterfly in the future, with stated that they believed that we from critical habitat when such likely low overall costs. To the degree understated the cost of section 7 exclusion will result in the extinction of that the higher costs in our range of cost consultations, and that the findings in the subspecies. estimates are realized, we expect the draft economic analysis concerning As our economic analysis indicated additional conservation benefits. That potential associated real estate there are potential economic costs of is, where increased costs result from development costs are significant including this area in the final critical avoidance of impacts that may destroy enough to warrant a withdrawal of these habitat designation, we considered or adversely modify designated critical units. whether it should be excluded under habitat, we expect real, on-the-ground Our Response: In preparing the section 4(b)(2). The benefits of benefits (in addition to these economic analysis, we estimated the excluding these areas would be the informational benefits) to the potential effects from critical habitat avoidance of these additional costs, conservation of the bay checkerspot designation resulting from section 7 which we estimate could range up to butterfly. As a result, we conclude that, consultations that could be attributable $6.5 million over the next 10 years. even at the highest range of potential to the designation. As previously stated, Actual costs are likely to be significantly costs identified in our economic we believe that many of the effects lower, given the historic presence of bay analysis, the benefits of including these perceived by the public to be checkerspot butterflies on the site, the areas in this final designation as critical attributable to critical habitat would presence of other listed species, and the habitat outweigh the possible benefits of actually occur, regardless of critical expected overlap of any measures excluding them. habitat designation, because the bay implemented to protect these species (54) Comment: We received several checkerspot is a federally protected with measures necessary to protect bay comments stating that the draft species and other listed species occupy checkerspot butterfly habitat. In economic analysis mis-characterized the
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potential land use activities on the Summary of Changes From the designation. Economic effects are Kalana Hills unit by omitting future real Proposed Rule measured as changes in national estate development. Based on a review of public income, regional jobs, and household Our Response: According to the city comments received on the proposed income. An analysis of the economic of San Jose’s General Plan, portions of determination of critical habitat for the effects of the proposed bay checkerspot the Kalana Hills unit are planned for bay checkerspot butterfly, we critical habitat designation was future real estate development, which reevaluated our proposed designation of prepared (Industrial Economics, Incorporated, 2001) and made available was overlooked in the draft economic critical habitat. This resulted in some for public review (February 9 to March analysis. Because this unit is occupied changes that are reflected in this final 12, 2001; 66 FR 9683). The final and because real estate development in determination. These are: (1) the analysis, which reviewed and this area lacks any clear Federal nexus, exclusion of some lands where new incorporated public comments, it is unlikely that critical habitat information revealed that lands were concluded that no significant economic designation would have any significant not essential to the conservation of the impacts are expected from critical effect. In this final rule, however, we bay checkerspot; (2) refining of the habitat designation above and beyond significantly modified this unit to critical habitat boundaries; and (3) that already imposed by listing the bay withdraw the majority of lands clarification of the primary constituent considered suitable for development, checkerspot. elements. The most likely economic effects of and we do not expect real estate Based on comments received, we development activities to be critical habitat designation are on excluded those areas where new activities funded, authorized, or carried significantly impacted within this unit. information revealed that lands were (55) Comment: One commenter stated out by a Federal agency. The analysis not essential. This included the examined the effects of the proposed that the draft economic analysis failed exclusion of approximately 141 ha (348 to consider the incremental costs designation on: (1) re-initiation of ac) of primarily agricultural lands from section 7 consultations; (2) length of associated with additional California unit 7, 57 ha (141 ac) of nonserpentine Environmental Quality Act (CEQA) time in which section 7 consultations lands from unit 8, 81 ha (201 ac) of are completed; and (3) new compliance as a result of the critical mostly residential development from habitat rule. consultations resulting from the unit 9, 260 ha (643 ac) of mostly determination. The draft economic Our Response: We disagree. commercial development from unit 10, analysis reported that, although difficult Landowners in the state of California and 382 ha (943 ac) of developed areas to assess because the bay checkerspot’s must comply with CEQA whether or not and graded lands permitted for critical habitat overlapped with the their land is within the area designated development from unit 12. habitat of other federally protected as critical habitat for a federally-listed These changes resulted in a reduction species, impacts could be as high as species. The draft economic analysis of approximately 923 ha (2,279 ac) in $1.2 to $6.5 million dollars over the discusses the effect that existing state the critical habitat designation from the next 10 years. and local regulations have on current proposed rule to the final rule. We Potential impacts that were identified activities in proposed critical habitat originally had proposed 10,597 ha included consultations with Federal units. Specifically, CEQA requires (26,182 ac) of critical habitat for the bay agencies in the Communications Hill identification of significant checkerspot, and in this final rule, we unit regarding proposed real estate environmental effects of proposed are designating 9,673 ha (23,903 ac). development projects. Specifically, the projects that have the potential to harm Certain unit acreages have changed draft economic analysis estimated that the environment. The lead agency slightly from the proposed rule, and between three and five section 7 (typically the California State agency in these reflect errors in rounding. consultations could occur based on the charge of the oversight of a project) must Economic Analysis City of San Jose’s estimate and with determine whether a proposed project costs up to a total of $50,000 for all the would have a ‘‘significant’’ effect on the Section 4(b)(2) of the Act requires us consultations and with associated environment. to designate critical habitat on the basis mitigation costs that could range Review of the CEQA statute, and of the best scientific and commercial between $0.96 and $3.74 million, based conversations with the California information available and to consider on a previous consultation recently Resources Agency (one of the agencies the economic and other relevant completed in the area for another large- responsible for administering CEQA), impacts of designating a particular area scale development project. However, revealed that when a species is known as critical habitat. We may exclude areas based on comments we received on the to occupy a parcel of land, the from critical habitat upon a draft analysis, we recognized that the designation of critical habitat alone does determination that the benefits of the draft may have underestimated the not require a lead agency to pursue any exclusions outweigh the benefits of consultation costs on Communications incremental actions. In the case of the specifying the areas as critical habitat. Hill (due to the large scale of bay checkerspot, the Recovery Plan We cannot exclude the areas from development planned for the hill) and (Service 1998) for serpentine soil critical habitat when the exclusion will thus revised the estimates of species in the San Francisco Bay area result in the extinction of the consultation costs in the final includes a description of the habitat subspecies. addendum to the economic analysis. areas needed by the bay checkerspot. Economic effects caused by listing the The revised estimates for these Impacts to such previously identified bay checkerspot as a federally protected consultation costs are $50,000 per areas would likely result in the need for threatened species, and by other consultation (estimated as 50 percent of compliance with CEQA by project statutes, are the baseline against which the maximum suggested cost of proponents. Therefore, economic the effects of critical habitat designation $100,000 to account for the impact of impacts generated by CEQA on bay are evaluated. The economic analysis additional listed species within the checkerspot habitat areas are part of the must then examine the incremental unit) or a total of $250,000 for the five baseline and not attributable to bay economic and conservation effects and potential consultations. However, due to checkerspot critical habitat designation. benefits of the critical habitat the existence of other federally
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protected species within the area which In summary, in our economic been reviewed by the Office of could trigger consultations regardless of analysis, we estimate that, over the next Management and Budget (OMB). bay checkerspot critical habitat, much of 10 years, the total cost of this (a) This rule will not have an annual the survey work associated with the rulemaking will range between $1.2 and economic effect of $100 million or more consultation, and the consultation itself $6.5 million. This estimate is primarily or adversely affect an economic sector, would already be required. Therefore, a attributable to costs associated with productivity, jobs, the environment, or substantial portion of the costs section 7 consultations and potential other units of government. The bay associated with these consultations modifications to future residential and most likely would also be attributable to commercial real estate development checkerspot butterfly was listed as a factors or species other than the bay projects. The high end of the estimate threatened subspecies in 1987. In fiscal checkerspot critical habitat designation, was a result of assuming no on-site years 1987 through 2000, the and thus we believe that this estimate habitat were preserved in the Sacramento Fish and Wildlife Office most likely overstates the actual impacts Communications Hill unit and 312 acres conducted, or is in the process of of this critical habitat designation. of off-site habitat would need to be conducting, 4 formal section 7 We believe that any project that purchased to mitigate this loss. consultations with other Federal would adversely modify or destroy However, the analysis compared this agencies to ensure their actions would critical habitat would also jeopardize cost to the estimated value of the not jeopardize the continued existence the continued existence of the species, residential development proposed to be of the bay checkerspot. and that reasonable and prudent built within the unit. Depending on the Under the Act, critical habitat may alternatives to avoid jeopardizing the extent of mitigation required, and the not be adversely modified by a Federal species would also avoid adverse actual final level of residential modification of critical habitat. Within agency action; the Act does not impose development within the unit, we any restrictions through critical habitat the analysis, we determined there estimate that mitigation costs associated would be costs associated with the designation on non-Federal persons with critical habitat designation for the unless they are conducting activities designation, however, these costs were bay checkerspot could range between funded or otherwise sponsored, determined to be negligible, except as 0.07 percent and 0.6 percent of the total authorized, or permitted by a Federal discussed above. Thus, little regulatory value of future residential development burden or associated significant within the unit. A copy of the final agency. Section 7 requires Federal additional costs would accrue because economic analysis and description of agencies to ensure that they do not of critical habitat above and beyond that the exclusion process with supporting jeopardize the continued existence of resulting from listing. Our economic documents are included in our the species. Based upon our experience analysis does recognize that there may administrative record and may be with the species and its needs, we be costs from delays associated with obtained by contacting the Sacramento conclude that any Federal action or reinitiating completed consultations Fish and Wildlife Office (see ADDRESSES authorized action that could potentially after the critical habitat designation is section). cause adverse modification of made final. There may also be economic designated critical habitat would effects due to the reaction of the real Required Determinations currently be considered as ‘‘jeopardy’’ estate market to critical habitat 1. Regulatory Planning and Review under the Act (see Table 2). designation, as real estate values may be lowered due to perceived increase in the In accordance with the criteria in regulatory burden. However, we believe Executive Order 12866, this rule is a this impact will be short-term. significant regulatory action and has
TABLE 2.—IMPACTS OF BAY CHECKERSPOT BUTTERFLY LISTING AND CRITICAL HABITAT DESIGNATION
Additional activities potentially af- Categories of activities Activities potentially affected by species listing only fected by critical habitat designa- tion 1
Federal Activities Potentially Af- Activities conducted by the Army Corps of by Engineers, Bureau of Activities by these Federal Agen- fected 2. Reclamation, Environmental Protection Agency, Federal Highway cies in any unoccupied critical Administration. habitat areas. Private or other non-Federal Activi- Activities that require a Federal action (permit, authorization, or fund- Funding, authorization, or permit- ties Potentially Affected 2. ing) and may remove or destroy bay checkerspot habitat by me- ting actions by Federal Agen- chanical, chemical, or other means (e.g., grading, discing, ripping, cies in any unoccupied critical and tilling, water diversion, impoundment, groundwater pumping, habitat areas. irrigation, construction, road building, herbicide application, rec- reational use, etc.) or appreciably decrease habitat value or quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals, fragmentation of habitat). 1 This column represents activities potentially affected by the critical habitat designation in addition to those activities potentially affected by list- ing the subspecies. 2 Activities initiated by a Federal agency. 3 Activities initiated by a private or other non-Federal entity that may need Federal authorization or funding.
Accordingly, the designation of areas conducted by Federal agencies or non- restricted by the designation of critical within the geographic range occupied Federal entities that receive Federal habitat (however, they continue to be by the bay checkerspot butterfly has authorization or funding. Non-Federal bound by the provisions of the Act little, if any, incremental impacts on entities that do not have a Federal concerning ‘‘take’’ of the species). what actions may or may not be ‘‘sponsorship’’ of their actions are not
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Designation of areas of unknown expected to result in any restrictions in Federal, State, or local government occupancy as critical habitat may have addition to those currently in existence. agencies, or geographic regions; and (c) impacts on what actions may or may not Although small entities may carry out any significant adverse effects on be conducted by Federal agencies or activities within designated critical competition, employment, investment, non-Federal entities that receive Federal habitat, many of these activities lack a productivity, innovation, or the ability authorization or funding. Based on our Federal nexus and therefore their of U.S.-based enterprises to compete understanding of the threats to the impacts on critical habitat do not need with foreign-based enterprises. Please species, the prohibition against adverse to be considered. For those actions refer to the final economic analysis for modification of critical habitat in areas requiring federal funding or authority, a discussion of the effects of this of unknown occupancy is not expected we believe that the incremental impacts determination. to impose any additional restrictions to attributable to this rule are not federally sponsored projects or activities significant for reasons explained above Unfunded Mandates Reform Act (2 occurring in these areas, unless we and in the draft economic analysis. U.S.C. 1501 et seq.) make a determination that the proposed Therefore, we are certifying that the In accordance with the Unfunded activity would result in an appreciable designation of critical habitat for the bay Mandates Reform Act (2 U.S.C. 1501 et reduction of the value of the critical checkerspot butterfly will not have a seq.): habitat for both the survival and significant economic impact on a (a) This rule will not ‘‘significantly or recovery of the bay checkerspot. As substantial number of small entities. As uniquely’’ affect small governments. A discussed in the final addendum to the indicated in Table 1 (see Critical Habitat Small Government Agency Plan is not economic analysis, we determined that Designation section), we designated required. Small governments will be the costs of any additional consultations property owned by State and local affected only to the extent that any and any resulting project modifications governments, and private property. programs having Federal funds, permits, will not have an annual economic effect Within these areas, the types of Federal or other authorized activities must of $100 million or more or adversely actions or authorized activities that we ensure that their actions will not affect an economic sector, productivity, have identified as potential concerns adversely affect the critical habitat. jobs, the environment, or other units of are: However, as discussed above, these government. (1) Regulation of activities affecting actions are currently subject to (b) This rule will not create waters of the United States by the Corps equivalent restrictions through the inconsistencies with other agencies’ of Engineers under section 404 of the listing protections of the subspecies, actions. As discussed above, Federal Clean Water Act; and few, if any, further restrictions are agencies have been required to ensure (2) Regulation of water flows, anticipated. that their actions do not jeopardize the execution of water contracts, water (b) This rule will not produce a continued existence of the bay delivery, transfer of Federal project Federal mandate of $100 million or checkerspot butterfly since the listing in water, damming, diversion, and greater in any year, that is, it is not a 1987. The prohibition against adverse channelization by the Bureau of ‘‘significant regulatory action’’ under modification of critical habitat is not Reclamation or the Corps of Engineers; expected to impose any substantial (3) Pesticide and air quality regulation the Unfunded Mandates Reform Act. additional restrictions to those that by the Environmental Protection The designation of critical habitat currently exist. Because of the potential Agency; and imposes no obligations on State or local for impacts on other Federal agencies’ (4) Funding and regulation of road governments. activities, we will continue to review construction by the FHWA. Takings this action for any inconsistencies with Many of the activities sponsored by other Federal agencies’ actions. Federal agencies within critical habitat In accordance with Executive Order (c) This rule will not materially affect areas are carried out by small entities (as 12630, this rule does not have entitlements, grants, user fees, loan defined by the Regulatory Flexibility significant takings implications. A programs, or the rights and obligations Act) through contract, grant, permit, or takings implication assessment is not of their recipients. Federal agencies are other Federal authorization. As required. As discussed above, the currently required to ensure that their discussed above, these actions are designation of critical habitat affects activities do not jeopardize the already currently required to comply only Federal actions. The rule will not continued existence of the subspecies, with the protections of the Act, and the increase or decrease the current and as discussed above, we do not designation of critical habitat is not restrictions on private property anticipate that the adverse modification anticipated to have any additional concerning take of the bay checkerspot prohibition (resulting from critical effects on these activities. butterfly. Due to current public habitat designation) will have any For actions on non-Federal property knowledge of the subspecies’ significant incremental effects. that do not have a Federal connection protections, the prohibition against take (d) OMB has determined that this rule (such as funding or authorization), the of the subspecies both within and will raise novel legal or policy issues current restrictions concerning take of outside of the designated areas, and the and, as a result, this rule has undergone the subspecies remain in effect, and this fact that critical habitat provides no OMB review. final rule will have no additional substantial incremental restrictions, we restrictions. do not anticipate that property values Regulatory Flexibility Act (5 U.S.C. 601 will be affected by the critical habitat et seq.) Small Business Regulatory Enforcement designation. While real estate market In the economic analysis, we Fairness Act (5 U.S.C. 804(2)) values may temporarily decline determined that designation of critical In the economic analysis, we following designation, due to the habitat will not have a significant effect determined that designation of critical perception that critical habitat on a substantial number of small habitat would not cause: (a) any effect designation may impose additional entities. As discussed under Regulatory on the economy of $100 million or regulatory burdens on land use, we Planning and Review above, and in this more; (b) any increases in costs or prices expect any such impacts to be short final determination, this rule is not for consumers, individual industries, term.
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Additionally, critical habitat Office of the Solicitor has determined that federally recognized Tribes must be designation does not preclude that this rule does not unduly burden related to on a Government-to- development of HCPs and issuance of the judicial system and meets the Government basis. We are not aware of incidental take permits. Owners of areas requirements of sections 3(a) and 3(b)(2) any Tribal lands essential for the that are included in the designated of the Order. We designated critical conservation of the bay checkerspot. critical habitat will continue to have the habitat in accordance with the Therefore, we are not designating opportunity to utilize their property in provisions of the Endangered Species critical habitat for the bay checkerspot ways consistent with the survival of the Act. The rule uses standard property on Tribal lands. bay checkerspot butterfly. descriptions and identifies the primary constituent elements within the References Cited Federalism designated areas to assist the public in A complete list of all references cited In accordance with Executive Order understanding the habitat needs of the in this final rule is available upon 13132, the rule does not have significant bay checkerspot butterfly. request from the Sacramento Fish and Federalism effects. A Federalism Paperwork Reduction Act of 1995 (44 Wildlife Office (see ADDRESSES section). assessment is not required. In keeping U.S.C. 3501 et seq.) Authors with Department of the Interior and Department of Commerce policy, we This rule references permits for HCPs The primary authors of this rule are requested information from, and which contain information collection the staff of the Sacramento Fish and coordinated development of this critical activity. The Fish and Wildlife Service Wildlife Office (see ADDRESSES section). has OMB approval for the collection habitat designation with, appropriate List of Subjects in 50 CFR Part 17 State resource agencies in California. under OMB Control Number 1018–0094. The designation of critical habitat in The Service may not conduct or Endangered and threatened species, areas currently occupied by the bay sponsor, and a person is not required to Exports, Imports, Reporting and respond to a collection of information checkerspot butterfly imposes no recordkeeping requirements, unless it displays a currently valid OMB substantial additional restrictions to Transportation. control number. those currently in place and, therefore, Regulation Promulgation has little incremental impact on State National Environmental Policy Act and local governments and their We determined that we do not need Accordingly, we amend part 17, activities. The designation may have to prepare an Environmental subchapter B of chapter I, title 50 of the some benefit to these governments in Assessment and/or an Environmental Code of Federal Regulations as set forth that the areas essential to the Impact Statement as defined by the below: conservation of the subspecies are more National Environmental Policy Act of PART 17—[AMENDED] clearly defined, and the primary 1969 in connection with regulations constituent elements of the habitat adopted pursuant to section 4(a) of the 1. The authority citation for part 17 necessary to the survival of the Act as amended. We published a notice continues to read as follows: subspecies are specifically identified. outlining our reason for this While making this definition and determination in the Federal Register Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– identification does not alter where and on October 25, 1983 (48 FR 49244). what federally sponsored activities may 625, 100 Stat. 3500; unless otherwise noted. occur, it may assist these local Government-to-Government Relationship With Tribes 2. Amend § 17.11(h), by revising the governments in long-range planning entry for ‘‘Butterfly, bay checkerspot,’’ (rather than waiting for case-by-case In accordance with the President’s under ‘‘INSECTS,’’ to read as follows: section 7 consultations to occur). memorandum of April 29, 1994, ‘‘Government-to-Government Relations § 17.11 Endangered and threatened Civil Justice Reform with Native American Tribal wildlife. In accordance with Executive Order Governments’’ (59 FR 22951), E.O. * * * * * 12988, the Department of the Interior’s 13175, and 512 DM 2, we understand (h) * * *
Species Vertebrate population Historic range where endangered or Status When Critical Special Common name Scientific name threatened listed habitat rules
******* INSECTS
******* Butterly, bay Euphydryas editha U.S.A. (CA) ...... Entire ...... T 288 17.95(i) NA checkerspot. bayensis.
*******
3. Amend § 17.95(i) by adding critical § 17.95 Critical habitat—fish and wildlife. Bay Checkerspot Butterfly (Euphydryas habitat for the bay checkerspot butterfly * * * * * editha bayensis) (Euphydryas editha bayensis) in the (i) Insects. 1. Critical habitat units are depicted for same alphabetical order as this San Mateo and Santa Clara Counties, subspecies occurs in § 17.11(h), to read California, on the maps below. as follows:
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2. Within these areas, the primary 3. Within these areas, existing human- substation shown on the Woodside constituent elements are those habitat constructed features and structures, such as quadrangle, where the State Fish and Game components that are essential for the primary buildings, roads, railroads, urban Refuge boundary meets Canada Road and an biological needs of foraging, sheltering, development, and other human-constructed elevation of 161 m (528 ft) is marked); then breeding, maturation, and dispersal. The features not containing any primary due northeast to the southernmost corner of primary constituent elements are one or more constituent elements, are not considered Edgewood Natural Preserve; then northeast of the following: stands of Plantago erecta, critical habitat and are not included in the along the southeast boundary of Edgewood Natural Preserve to the 159 m (520 ft) Castilleja exserta, or Castilleja densiflora; designation. elevation contour as shown on the Woodside spring flowers providing nectar; pollinators Unit 1 (Edgewood Park/Triangle Unit): San quadrangle; then northwesterly along this of the bay checkerspot’s food and nectar Mateo County, California. Bounded as contour to its intersection with Edgewood plants; soils derived from serpentinic rock; follows: beginning at the intersection of Edgewood Road and Canada Road; Road; then southwesterly along the south and space for dispersal between habitable southwesterly, south, and southeasterly along edge of pavement of Edgewood Road to the areas. In addition, the following are each the light-duty extension of Edgewood Road starting point. primary constituent elements to be conserved southwest of Canada Road to its intersection Unit 2 (Jasper Ridge Unit): San Mateo when present in combination with one or with an unnamed intermittent drainage County, California. Bounded as follows: to more of the primary constituent elements tributary to Upper Crystal Springs Reservoir the east, north, and west by the 110 m (360 above: areas of open grassland, topography as shown on the USGS Woodside 7.5 minute ft) elevation contour around Jasper Ridge with varied slopes and aspects providing quadrangle (1961, photorevised 1968 and (USGS Palo Alto 7.5 minute quadrangle, surface conditions with warm and moderate 1973); then southwesterly along this drainage 1991); and to the south by the current to cool temperatures during sunny spring to its intersection with I–280; then boundary of the Jasper Ridge Biological days, stable holes or cracks in the soil and southeasterly along the eastern edge of Reserve, which is largely coincident with the surface rocks or rock outcrops, wetlands pavement of I–280 to a point due southwest northern boundary of the town of Portola providing moisture during times of spring of the southernmost corner of Edgewood Valley. drought. Natural Preserve (this just south of a BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C
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Unit 3 (San Bruno Mountain Unit): Unit 5 (San Martin Unit): Santa Clara contour, continuing onto the USGS San Mateo County, California. All area County, California. Bounded on the Gilroy 7.5 minute quadrangle (1955, on San Bruno Mountain above the 152 north by a line running due east-west photorevised 1968 and 1973) and back m (500 ft) elevation contour and east of through a point 305 m (1000 ft) due to its intersection with longitude 121 the western Pacific Gas and Electric north of a hilltop marked 239 m (785 ft) degrees 37 minutes 30 seconds west (the transmission corridor (this transmission in elevation on the USGS Mt. Madonna junction between the two quadrangles). corridor runs south to southwesterly 7.5 minute quadrangle (1955, The unit is bounded on the south- from the west end of Guadalupe Valley photorevised 1968). This hilltop is near southwest by a straight line running to the South San Francisco/Colma City latitude 37 degrees 4 minutes 42 from this latter point for a distance of seconds north, longitude 121 degrees 38 border) as shown on the USGS San about 2,228 m (7,310 ft) slightly south Francisco South 7.5 minute quadrangle, minutes 19 seconds west (Hayes Lane, of west-northwest (bearing 291.5 1956). not shown on the Mt. Madonna degrees) to a hilltop labeled 151 m (495 Unit 4 (Bear Ranch Unit): Santa Clara quadrangle, also runs in the vicinity of County, California. Those portions of this hilltop). The north boundary runs ft) in elevation on the Mt. Madonna section 32, T.9 S., R.4 E. and section 5, as far east as its intersection with the 97 quadrangle. The west boundary of the T.10 S., R.4 E., westerly of Coyote m (320 ft) elevation contour west of unit runs from this hilltop due north- Reservoir Road—a light-duty road Coolidge Avenue as shown on the Mt. northeast (bearing 22.5 degrees) to the shown but not named on the USGS Madonna quadrangle. From this point north boundary. Gilroy 7.5 minute quadrangle (1955, the boundary runs southeasterly, BILLING CODE 4310–55–P photorevised 1968 and 1973). southerly, and westerly following this
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BILLING CODE 4310–55–C
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Unit 6 (Communications Hill Unit): west of Highway 87; then due east for the boundary of Oak Hill Memorial Park Santa Clara County, California. Starting a distance of about 238 m (780 ft) to a cemetery; then following the cemetery at a point on the 73 m (240 ft) elevation point due south of the easternmost point boundary southeasterly, skirting a hill contour due south of the 133 m (435 ft) of the eastern of the two water tanks; summit marked 98 m (323 ft) on the San summit of Communications Hill, the then due north for about 439 m (1,440 Jose East quadrangle, to the first 67 m Communications Hill unit is bounded to ft) to the intersection with the 85 m (280 (220 ft) elevation contour southeast of the south by the 73 m (240 ft) elevation ft) elevation contour; then slightly north this summit; then due southwest to the contour as shown on the USGS San Jose of east on a straight line to the southern 49 m (160 ft) elevation contour East 7.5 minute quadrangle map (1961, corner of the property of the county immediately west of the railroad tracks; photorevised 1980; the hill is not named communications facility; then on a line then southeasterly along this contour as on this map but the county to the northern corner of this property; shown on the 1961 San Jose East communications center is shown), as far then due southwest to Carol Drive (not quadrangle to its intersection with west as its intersection with Highway 87 named on the San Jose East quadrangle); (this highway is not shown on the San then slightly north of northwest (bearing Hillsdale Avenue; then southwesterly Jose East quadrangle); then south along 322 degrees) to the 55 m (180 ft) along Hillsdale Avenue (north edge of Highway 87 (west edge of pavement) to elevation contour; then along this pavement) to its intersection with Vista the 55 m (180 ft) elevation contour (all contour easterly and northeasterly until Park Drive (not shown on the San Jose contours in this description are as it reaches the second dirt road as shown East quadrangle); then due north to the shown on the San Jose East quadrangle); on the San Jose East quadrangle; then 73 m (240 ft) elevation contour; then then south, west, and north along this due northeast across the Southern westerly along this contour to the contour to a point due west of the Pacific railroad tracks to the 55 m (180 starting point. southernmost point of the southern of ft) elevation contour; then northwesterly BILLING CODE 4310–55–P the two water tanks on the top of the hill and northeasterly along this contour to
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BILLING CODE 4310–55–C
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Unit 7 (Kalana Hills Unit): Santa Clara 613460, 4114300; 613460, 4114290; due west for a distance of about 500 m County, California. From USGS 1:24,000 613500, 4114290; 613530, 4114320; (1,640 ft) to a hilltop marked 430 m quadrangle map Morgan Hill, lands 613580, 4114320; 613610, 4114300; (1,412 ft) in elevation on the Morgan bounded by the following UTM Zone 10 613660, 4114260; 613710, 4114160; Hill quadrangle; then north of northwest NAD83 Coordinates (E,N): 612000, 613710, 4114090; 613700, 4114040; (bearing 325 degrees) for a distance of 4115810; 612070, 4115810; 612090, 613590, 4113950; 613500, 4113940; about 2,551 m (8,370 ft) to a hilltop 4115790; 612170, 4115750; 612210, 613350, 4114030; 613350, 4114160; marked 444 m (1,457 ft) in elevation on 4115700; 612240, 4115640; 612270, 613270, 4114210; 613200, 4114200; the Morgan Hill quadrangle; then on a 4115590; 612270, 4115490; 612330, 613160, 4114140; 612630, 4114460; line running from this hilltop south of 4115490; 612360, 4115460; 612360, 612630, 4114470; 612680, 4114530; west-southwest (bearing 237 degrees) to 4115370; 612430, 4115370; 612470, 612770, 4114560; 612830, 4114610. the intersection of the Metcalf Canyon 4115360; 612550, 4115280; 612580, Unit 8 (Kirby Unit): Santa Clara drainage with the 354 m (1,160 ft) 4115190; 612630, 4115150; 612670, County, California. Beginning at the elevation contour as shown on the 4115110; 612710, 4115060; 612710, intersection of the intermittent creek Morgan Hill quadrangle. The north 4115050; 612730, 4115000; 612730, draining Metcalf Canyon (Metcalf boundary of the unit then continues 4114960; 612710, 4114910; 612550, Canyon on the USGS Morgan Hill 7.5 westerly down the Metcalf Canyon 4114910; 612550, 4114880; 612510, minute quadrangle, 1955, photorevised drainage to the starting point. 4114840; 612510, 4114820; 612480, 1980) with Highway 101 (current 4114790; 612450, 4114740; 612400, alignment, not shown on Morgan Hill Unit 9 (Morgan Hill Unit): Santa Clara 4114700; 612350, 4114660; 612180, quadrangle), the unit is bounded on the County, California. From USGS 1:24,000 4114660; 612130, 4114700; 612110, east, southeast, and south by Highway quadrangle map Morgan Hill, lands 4114700; 612080, 4114720; 612060, 101 (east edge of pavement, current bounded by the following UTM Zone 10 4114720; 611960, 4114790; 611810, alignment, not shown on the Morgan NAD83 Coordinates (E,N): 617000, 4114900; 611800, 4115630; 611850, Hill quadrangle), south to where it 4112300; 617300, 4112300; 617500, 4115680; 611880, 4115680; 611900, crosses Coyote Creek. From there the 4112000; 617600, 4112000; 617800, 4115700; 611940, 4115770; 612000, boundary runs southeasterly up along 4111900; 617900, 4111900; 618100, 4115810 Including lands bounded by: Coyote Creek to the Anderson Lake 4111800; 618100, 4111700; 618200, 612830, 4114610; 612900, 4114610; dam; then east-northeasterly up the face 4111500; 618200, 4111300; 618000, 612950, 4114590; 612950, 4114520; of the dam to Anderson Lake (Anderson 4111100; 617700, 4110900; 617400, 612940, 4114510; 612940, 4114500; Reservoir). The unit is bounded on the 4110700; 617200, 4110700; 617200, 612950, 4114490; 612950, 4114470; southeast by Anderson Lake. From the 4110900; 617000, 4111100; 616900, 612960, 4114460; 612960, 4114410; northernmost tip of Anderson Lake (at 4111100; 616900, 4110800; 616500, 612970, 4114410; 612970, 4114380; latitude 37 degrees 12 minutes 15 4110800; 616300, 4110600; 616000, 612990, 4114360; 613000, 4114360; seconds north) the boundary runs 4110600; 615600, 4110800; 615600, 613000, 4114370; 613040, 4114370; slightly north of west for a distance of 4111000; 615700, 4111300; 615700, 613080, 4114360; 613090, 4114360; about 1,097 m (3,600 ft) to a hilltop 4111700; 616000, 4111700; 616000, 613090, 4114410; 613080, 4114410; marked 379 m (1,243 ft) in elevation on 4111800; 616200, 4111900; 616300, 613080, 4114480; 613150, 4114530; the Morgan Hill quadrangle; then 4112000; 616400, 4112000; 616400, 613230, 4114530; 613280, 4114510; slightly west of northwest for a distance 4111900; 616500, 4111900; 616500, 613290, 4114510; 613370, 4114510; of about 1,707 m (5,600 ft) to a hilltop 4112000; 616600, 4112000; 616800, 613440, 4114470; 613460, 4114440; marked 411 m (1,347 ft) in elevation on 4112200; 617000, 4112300. 613490, 4114400; 613490, 4114340; the Morgan Hill quadrangle; then nearly BILLING CODE 4310–55–P
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Unit 10 (Metcalf Unit): Santa Clara 4124600; 607700, 4125000; 607700, Jose East, lands bounded by the County, California. From USGS 1:24,000 4125300; 608300, 4125800. following UTM Zone 10 NAD83 quadrangle maps Lick Observatory, Unit 11 (San Felipe Unit): Santa Clara Coordinates (E,N): 606600, 4128500; Morgan Hill, San Jose East, and Santa County, California. The east boundary of 606800, 4128500; 607000, 4128400; Teresa Hills, lands bounded by the the San Felipe critical habitat unit 607000, 4128200; 607100, 4128100; following zone 10 NAD83 Coordinates begins at the 440 m (1,445 ft) hilltop 606900, 4127900; 606900, 4127800; (E,N): 608300, 4125800; 608500, identified in the northeast boundary of 607000, 4127600; 607300, 4127600; 4125800; 608900, 4125400; 609500, the Metcalf unit (this peak is labeled on 607500, 4127700; 607700, 4127700; 4125400; 609800, 4125300; 610200, the USGS Morgan Hill 7.5 minute 607800, 4127600; 607800, 4127500; 4125600; 610300, 4125600; 610600, quadrangle (1955, photorevised 1980), 607700, 4127400; 607800, 4127300; 4125500; 610700, 4125500; 610900, near latitude 37 degrees 15 minutes 607800, 4127100; 608000, 4127000; 4125300; 610900, 4125000; 611000, north, longitude 121 degrees 43 minutes 608100, 4126900; 608100, 4126700; 4124900; 611200, 4124500; 611300, west); and proceeds from that hilltop 607900, 4126600; 607900, 4126400; 4124500; 611400, 4124400; 611400, due north to San Felipe Road at an 608300, 4126000; 608300, 4125900; 4124300; 611500, 4124200; 611500, elevation of about 296 m (970 ft) (USGS 608200, 4125800; 608000, 4125700; 4124100; 611800, 4123900; 612100, Lick Observatory 7.5 minute 607900, 4125600; 607900, 4125500; 4123800; 612500, 4123500; 612500, quadrangle, 1955, photorevised 1968); 607700, 4125400; 607600, 4125400; 4123400; 612800, 4123200; 613600, then west-northwesterly along San 606600, 4126100; 606400, 4126200; 4123200; 613700, 4123000; 613900, Felipe Road (southwest edge of 606300, 4126300; 606200, 4126300; 4122500; 613900, 4122400; 614100, pavement) for a distance of about 2.7 km 606100, 4126400; 605900, 4126500; 4122000; 614100, 4121900; 614200, (1.7 mi) to Silver Creek Road (sic). The 605800, 4126600; 605600, 4127000; 4121700; 614200, 4121600; 613900, north boundary is formed by Silver 605600, 4127100; 606200, 4127000; 4121400; 613800, 4121400; 613500, Creek Road (south edge of pavement) 606400, 4126800; 606800, 4126600; 4121500; 613400, 4121500; 613100, from San Felipe Road to Silver Creek 607200, 4126700; 607400, 4127000; 4121700; 612200, 4121700; 611900, (the creek crossing is on the USGS San 607300, 4127200; 607100, 4127400; 4121600; 611800, 4121600; 611500, Jose East 7.5 minute quadrangle, 1961, 606900, 4127500; 606700, 4127700; 4121400; 611300, 4121400; 611200, photorevised 1980). The west boundary, 606300, 4128200; 606600, 4128300; 4121300; 611000, 4121300; 610700, which abuts the Metcalf unit, runs from 606600, 4128500, including lands 4121500; 610400, 4121700; 610100, Silver Creek Road southeasterly along bounded by: 605600, 4128300; 605900, 4121900; 609900, 4122100; 609900, Silver Creek (mostly on Lick 4128300; 606000, 4128100; 605900, 4122200; 610100, 4122300; 610100, Observatory quadrangle). The south 4128000; 605700, 4128000; 605600, 4122400; 610000, 4122600; 610000, boundary also abuts the Metcalf unit, 4128100; 605600, 4128300 and lands 4122800; 609900, 4122900; 609900, and runs from Silver Creek (Morgan Hill bounded by: 606200, 4128100; 606200, 4123000; 609800, 4123100; 609700, quadrangle) due east to the starting 4128000; 606100, 4128000; 606100, 4123100; 609600, 4123000; 609500, point. 4127900; 606000, 4127900; 606000, 4123000; 609500, 4123600; 609200, Unit 12 (Silver Creek Hills Unit): 4128000; 606100, 4128100; 606200, 4124000; 609100, 4123900; 608900, Santa Clara County, California. From 4128100. 4123900; 608000, 4124500; 608000, USGS 1:24,000 quadrangle maps San BILLING CODE 4310–55–P
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BILLING CODE 4310–55–C
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Unit 13 (San Vicente-Calero Unit): intersection with Bailey Avenue. The a distance of about 543 m (1,780 ft) to Santa Clara County, California. Bounded south, southwest, and western border of the end of a dirt road as marked on the on the north and northwest by Calero the unit then continues from this point, 1980 photorevised Santa Teresa Hills Reservoir, by the canal and siphon along a line running west-southwesterly quadrangle; then slightly south of west- running westerly of the main reservoir (bearing 248 degrees) for a distance of northwest (bearing 290 degrees) for a dam (dam on the Arroyo Calero), and by about 325 m (1,065 ft) to a bench mark distance of about 2,551 m (8,370 ft) to the city boundary of the City of San north of Bailey Avenue labeled 108 m a hilltop marked 173 m (568 ft) in Jose, which follows the canal at an (354 ft) in elevation on the Santa Teresa elevation on the Santa Teresa Hills elevation of roughly 152 m (500 ft), as Hills quadrangle; then north of east quadrangle; then due northeast to the 73 far as its intersection with Chilanian (bearing 284 degrees) for a distance of m (240 ft) elevation contour as shown Gulch. The boundary then runs about 3,030 m (9,940 ft) to the on the Santa Teresa Hills quadrangle. generally southeast following Chilanian intersection of a land grant boundary The northern boundary of the unit is Gulch to its intersection with the R.1 E./ with a transmission line shown on the formed by the 73 m (240 ft) elevation R.2 E. (Mount Diablo meridian/base 1980 photorevised Santa Teresa Hills contour as shown on the Santa Teresa line) dividing line, then due south to the quadrangle at an elevation of about 152 Hills quadrangle. Calero County Park border. The park m (500 ft); then north-northwesterly Unit 15 (Tulare Hill Corridor Unit): boundary forms the rest of the western, along this land grant line to the Santa Clara County, California. Bounded southern, and southeastern border of the intersection with Fortini Road; then on the northeast by the most unit. The eastern border of the unit is generally west-southwest and west northeasterly edge of pavement of formed by a line running due north from along Fortini Road to the intersection Highway 101 (i.e., the highway itself is the southern Calero County Park with San Vicente Avenue (these road included, and the unit abuts the Kirby boundary through a hilltop elevation names do not appear on the Santa and Metcalf units). Bounded on the labeled 307 m (1,009 ft) on the USGS Teresa quadrangle); then westerly along northwest, west, and southwest by a Santa Teresa Hills 7.5 minute San Vicente Avenue to where it turns line extending due southwest from the quadrangle (1953, photorevised 1980) to south south-west; then continuing northeast boundary to the corner of Calero Reservoir. This hilltop is near westerly and northwesterly from this Cheltenham Way and Coburn Court, latitude 37 degrees 10 minutes 15 point along a land grant boundary then southwesterly along Cheltenham seconds north, longitude 121 degrees 46 shown on the Santa Teresa Hills Way from Coburn Court to the minutes 15 seconds west. quadrangle to its intersection with both intersection with Santa Teresa Unit 14 (Santa Teresa Hills Unit): Henwood Drive (road name does not Boulevard, then southeasterly along Santa Clara County, California. The east appear on the Santa Teresa quadrangle) Santa Teresa Boulevard to the 73 m (240 and southeast boundary runs as follows, and an unnamed intermittent drainage ft) elevation contour as shown on the beginning at the westernmost corner of (tributary to Arroyo Calero); then USGS Santa Teresa Hills 7.5 minute the Tulare Hill Corridor unit: due northeasterly and northerly up this quadrangle (1953, photorevised 1980), southeast and then northeast along the drainage as marked on the Santa Teresa then southwesterly along this contour to Tulare Hill Corridor unit boundary, to Hills quadrangle to the 183 m (600 ft) the border of Santa Teresa County Park, the 85 m (280 ft) elevation contour elevation contour; then due north- then along a line due southeast to the (USGS Santa Teresa Hills 7.5 minute northeast for a distance of about 424 m southeast border of the unit. Bounded quadrangle, 1953, photorevised 1980); (1,390 ft) to the first intersection with on the southeast by a line running due then southeasterly, south, and the 280 m (920 ft) elevation contour; northeast-southwest through the southwesterly along this elevation then west-northwest for a distance of southeastern-most point of the 85 m contour (continues onto USGS Morgan about 265 m (870 ft) to a hilltop over (280 ft) contour of Tulare Hill, as shown Hill 7.5 minute quadrangle, 1955, 280 m (920 ft) in elevation, then slightly on the Morgan Hill quadrangle. photorevised 1980, and back) to its north of west (bearing 276 degrees) for BILLING CODE 4310–55–P
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* * * * * Dated: April 20, 2001. Joseph E. Doddridge, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 01–10333 Filed 4–27–01; 8:45 am] BILLING CODE 4310–55–C
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