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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018--AT86

NOTICE: PROPOSED RULES

ACTION: Endangered and threatened species:

DOCUMENT ACTION: Proposed rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Proposed Designation of Critical Habitat for Navarretia fossalis (spreading navarretia)

DATES: We will accept comments until December 6, 2004. Public hearing requests must be received by November 22, 2004.

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to designate critical habitat for Navarretia fossalis (spreading navarretia) pursuant to the Endangered Species Act of 1973, as amended (Act). We have identified 31,086 acres (ac) (12,580 hectares (ha)) of habitat essential to the conservation of Navarretia fossalis, and propose to designate 4,301 ac (1,741 ha) of this essential habitat as critical habitat in San Diego and Los Angeles Counties, California. We have excluded 26,785 ac (10,839 ha) of essential habitat in Riverside and San Diego Counties from this proposed critical habitat designation. The excluded lands are located within approved and pending habitat conservation plans (HCPs), ``missioncritical'' training areas on Department of Defense lands, and areas covered by Integrated Natural Resource Management Plans (INRMPs) on Department of Defense lands. In developing this proposal, we evaluated those lands determined to be essential
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to the conservation of Navarretia fossalis to ascertain if any specific areas warrant noninclusion or exclusion from critical habitat pursuant to sections 4(a)(3) and 4(b)(2) of the Act. On the basis of our evaluation, we have determined that the benefits of excluding approved and pending HCPs and ``missioncritical'' training lands owned and managed by the Department of Defense from critical habitat for Navarretia fossalis outweighs the benefits of their inclusion, and have subsequently excluded those lands from this proposed designation of critical habitat for this species pursuant to section 4(b)(2) of the Act. We have also evaluated Integrated Natural Resource Management Plans (INRMP) on Department of Defense lands and have not proposed critical habitat where the INRMP provides a benefit to the species pursuant to section 4(a)(3) of the Act. We hereby solicit data and comments from the public on all aspects of this proposal, including data on economic and other impacts of the designation. We may revise this proposal prior to final designation to incorporate or address new information received during public comment periods.

SUMMARY: Spreading navarretia,

SUPPLEMENTAL INFORMATION

Public Comments Solicited

It is our intent that any final action resulting from this proposal will be as accurate as possible. Therefore, we solicit comments or suggestions from the public, other concerned governmental agencies, the scientific community, industry, or any other interested party concerning this proposed rule. In the development of our final designation, we will incorporate or address any new information received during the public comment periods, or from our evaluation of the potential economic impacts of this proposal. As such, we may revise this proposal to address new information and/or to either exclude additional areas that may warrant exclusion pursuant to section 4(b)(2) or we designate additional areas determined to be essential to the species but excluded from this proposal. We particularly seek comments concerning:
(1) The reasons why any areas should or should not be determined to be critical habitat as provided by section 4 of the Act.
(2) Specific information on the amount and distribution of Navarretia fossalis and its habitat, and which habitat or habitat components are essential to the conservation of this species and why; (3) Land use designations and current or planned activities in or adjacent to the areas proposed and their possible impacts on proposed critical habitat;
(4) Any foreseeable economic or other potential impacts resulting from the proposed designation, in particular, any impacts on small entities and;
(5) Whether our approach to designate critical habitat could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concerns and comments.

Some of the lands we have identified as essential for the conservation of the Navarretia fossalis are not being proposed as critical habitat. The following areas essential to the conservation of N. fossalis are not being proposed as critical habitat or have been excluded from this proposal: lands on Marine Corps Air Station Miramar (MCAS, Miramar); ``missioncritical'' training areas on Marine Corps Base, Camp Pendleton (Camp Pendleton); areas within the San Diego Multiple Species Conservation Program (MSCP), and areas within the Western Riverside Multiple Species Habitat Conservation Plan (MSHCP). These areas have been excluded because they meet the standard for exclusion under section 4(a)(3) of the Act, or because we believe the benefit of excluding these areas from critical habitat outweighs the benefit of including them pursuant to section 4(b)(2). We specifically solicit comment on: (a) Whether these areas are essential; (b) whether these areas warrant exclusion; and (c) the basis for not designating as or excluding these areas from critical habitat pursuant to section 4(a)(3) or section 4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the Act and Relationship to Department of Defense Lands sections for a detailed discussion).

If you wish to comment, you may submit your comments and materials concerning this proposal by any one of several methods (see ADDRESSES section). Please submit Internet comments to fw1cfwo_nafo@fws.gov in ASCII file format and avoid the use of special characters or any form of encryption. Please also include ``Attn: RIN 1018AT86'' in your e mail subject header and your name and return address in the body of your message. If you do not receive a confirmation from the system that we have received your Internet message, contact us directly by calling our Carlsbad Fish and Wildlife Office at phone number (760) 4319440. Please note that the email address fw1cfwo_nafo@fws.gov will be closed out at the termination of the public comment period.

Our practice is to make comments, including names and home addresses of respondents, available for public review during regular business hours. Individual respondents may request that we withhold their home address from the rulemaking record, which we will honor to the extent allowable by law. There also may be circumstances in which we would withhold from the rulemaking record a respondent's identity, as allowable by law. If you wish us to withhold your name and/or address, you must state this prominently at the beginning of your comment. However, we will not consider anonymous comments. We will make all submissions from organizations or businesses, and from individuals identifying themselves as representatives or officials of organizations or businesses, available for public inspection in their entirety. [[Page 60112]]
Comments and materials received will be available for public inspection, by appointment, during normal business hours at the above address.
Designation of Critical Habitat Provides Little Additional Protection to Species

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

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, ``Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.'' Currently, only 36 percent (445 species) of the 1,244 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat. We address the habitat needs of all 1,244 listed species through conservation mechanisms such as listing, section 7 consultations, the section 4 recovery planning process, the section 9 protective prohibitions of unauthorized take, section 6 funding to the States, and the section 10 incidental take permit process. The Service believes it is these measures that may make the difference between extinction and survival for many species.

We note, however, that a recent 9th Circuit judicial opinion, Gifford Pinchot Task Force v. United State Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. We are currently reviewing the decision to determine what effect it may have on the outcome of consultations pursuant to Section 7 of the Act.
Procedural and Resource Difficulties in Designating Critical Habitat

We have been overwhelmed with lawsuits regarding designation of critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance with which now consumes nearly the entire listing program budget. This leaves the Service with little ability to prioritize its activities to direct scarce listing resources to the listing program actions with the most biologically urgent species conservation needs.

The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits, to respond to Notices of Intent (NOIs) to sue relative to critical habitat, and to comply with the growing number of adverse court orders. As a result, listing petition responses, the Service's own proposals to list critically imperiled species and final listing determinations on existing proposals are all significantly delayed.

The accelerated schedules of court ordered designations have left the Service with almost no ability to provide for adequate public participation or to ensure a defectfree rulemaking process before making decisions on listing and critical habitat proposals due to the risks associated with noncompliance with judiciallyimposed deadlines. This in turn fosters a second round of litigation in which those who fear adverse impacts from critical habitat designations challenge those designations. The cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little additional protection to listed species.

The costs resulting from the designation include legal costs, the cost of preparation and publication of the designation, the analysis of the economic effects and the cost of requesting and responding to public comment, and in some cases the costs of compliance with the National Environmental Policy Act (NEPA), all are part of the cost of critical habitat designation. None of these costs result in any benefit to the species that is not already afforded by the protections of the Act enumerated earlier, and they directly reduce the funds available for direct and tangible conservation actions.

Background

It is our intent to discuss only those topics directly relevant to the identification and proposed designation of critical habitat for Navarretia fossalis in this rule. For more information on this species, refer to the final listing rule published in the Federal Register on October 13, 1998 (63 FR 54975) and the Recovery Plan for the Vernal Pools of Southern California (Recovery Plan) finalized on September 3, 1998 (Service 1998).

Life History

Navarretia fossalis, a member of Polemoniaceae (phlox family), is a low, mostly spreading or ascending, annual herb, 10 to 15 centimeters (cm) (4 to 6 inches (in)) tall. This species grows in vernal pools, clay flats, irrigation ditches, alkali grasslands, alkali playas, and alkali sinks (Dudek and Associates, Inc. 2003; Spencer 1997). The lower portions of the stems are mostly glabrous (bare). The leaves are soft and finely divided, 1 to 5 cm (0.4 to 2 in) long, and spinetipped when dry. The flowers are white to lavender white with linear petals and are arranged in flattopped, compact, leafy heads. The fruit is an ovoid, 2chambered capsule (Day 1993; Moran 1977).

There are approximately 30 species in the genus Navarretia, several of which occur within the range of Navarretia fossalis. N. fossalis can be confused with, and has been misidentified as, N. prostrata (Moran 1977). N. fossalis is distinguished by its linear or narrowly ovate corolla lobes, erect habit, cymose inflorescences, the size and shape of the calyx, and the position of the corolla relative to the calyx (Day 1993; Service 1998). Two other Navarretia taxa are also federally listed as endangered: N. leucocephala ssp. plieantha (manyflowered navarretia) and N. leucocephala ssp. pauciflora (fewflowered navarretia) (62 FR 33029). However, these two species are found in vernal pools in northern California.

Distribution and Status

Navarretia fossalis is distributed from northwestern Los Angeles County and western Riverside County, south through coastal San Diego County, California to northwestern Baja California, Mexico (Moran 1977; Oberbauer 1992). It is found at elevations between sea level and 4,250 [[Page 60113]]
feet (ft) (1,300 meters (m)) in vernal pools, alkali grassland, alkali playa, and alkali sink habitats (Day 1993; Munz 1974; California Native Plant Society (CNPS) 2001; Reiser 2001; California Natural Diversity Data Base (CNDDB) 2004).

One population has been reported from San Luis Obispo County, however, the identification of this population is thought to be in error (pers. comm. with Spencer 2004). Fewer than 45 populations exist in the United States (CNDDB 2004). Nearly 60 percent of the known populations are concentrated in three locations: Otay Mesa in southern San Diego County, along the San Jacinto River in western Riverside County, and near Hemet in Riverside County (Service 1998). The two largest populations occur in Riverside County and have been estimated to support 375,000 and 100,000 individuals respectively within 8 ac (3 ha) of habitat. Most other populations contain fewer than 1,000 individuals and occupy less than 1 ac (0.5 ha) of habitat. We estimate that less than 300 ac (120 ha) of habitat in the United States is occupied by this species (63 FR 54975). This estimate only quantifies the areas where the Navarretia fossalis is physically found and does not include the areas adjacent to the populations that are necessary to provide the hydrology that this species requires. In Mexico, N. fossalis is known from fewer than 10 populations clustered in three areas: along the international border, on the plateaus south of the Rio Guadalupe, and on the San Quintin coastal plain (Moran 1977). Threats

It is estimated that greater than 90 percent of the vernal pool habitat in Southern California has been converted as a result of past human activities (Bauder and McMillan 1998; KeelerWolf et al. 1998). Navarretia fossalis is threatened by habitat destruction and fragmentation from urban and agricultural development, pipeline construction, alteration of hydrology and floodplain dynamics, excessive flooding, channelization, offroad vehicle activity, trampling by cattle and sheep, weed abatement, fire suppression practices (including discing and plowing to remove weeds and create fire breaks), and competition from alien plant species (63 FR 54975). Previous Federal Action

The final listing rule for Navarretia fossalis provides a description of previous Federal actions through October 13, 1998 (63 FR 54975). Efforts necessary for the survival and recovery of N. fossalis are presented in the Recovery Plan (Service 1998).

At the time of listing, we concluded that designation of critical habitat for Navarretia fossalis was not prudent because such designation would not benefit the species. On November 15, 2001, a lawsuit was filed against the Department of the Interior (DOI) and the Service by the Center for Biological Diversity and California Native Plant Society, challenging our ``not prudent'' determinations for eight plants including Navarretia fossalis (CBD, et al. v. Norton, No. 01CV 2101 (S.D. Cal.)). A second lawsuit asserting the same claim was filed against the DOI and us by the Building Industry Legal Defense Foundation (BILD) on November 21, 2001 (BILD v. Norton, No. 01CV2145 (S.D. Cal.)). The parties in both cases agreed to a remand of the critical habitat determinations to us for additional consideration. In an order dated July 1, 2002, the U.S. District Court for the Southern District of California directed us to reconsider our not prudent finding and publish a proposed critical habitat rule for N. fossalis, if prudent, on or before January 30, 2004. In a motion to modify the July 1, 2002 order, the DOI and we requested that the due date for the proposed rule for N. fossalis be extended until October 1, 2004. This motion was granted on September 9, 2003. This proposed rule complies with the court's ruling.

Critical Habitat

Section 3(5)(A) of the Act defines critical habitat as: (i) The specific areas within the geographic area occupied by a species, at the time it is listed in accordance with the provisions of section 4 of [the] Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and (ii) specific areas outside the geographical area occupied by a species at the time it is listed in accordance with the provisions of section 4 of [the] Act, upon a determination that such areas are essential for the conservation of the species (Endangered Species Act (Act) 1973 (as amended)). ``Conservation'' means the use of all methods and procedures that are necessary to bring an endangered or a threatened species to the point at which listing under the Act is no longer necessary (Act 1973).

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of critical habitat with regard to actions carried out, funded, or authorized by a Federal agency. Section 7 requires consultation on Federal actions that are likely to result in the destruction or adverse modification of critical habitat.

To be included in a critical habitat designation, the habitat must first be ``essential to the conservation of the species.'' Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species (i.e., areas on which are found the primary constituent elements, as defined at 50 CFR 424.12(b)).

Occupied habitat may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include areas where existing management is sufficient to conserve the species. (As discussed below, such areas may also be excluded from critical habitat pursuant to section 4(b)(2).)

Our regulations state that, ``The Secretary shall designate as critical habitat areas outside the geographic area presently occupied by the species only when a designation limited to its present range would be inadequate to ensure the conservation of the species'' (50 CFR 424.12(e)). Accordingly, when the best available scientific and commercial data do not demonstrate that the conservation needs of the species so require, we will not designate critical habitat in areas outside the geographic area occupied by the species.

Our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271) and our U.S. Fish and Wildlife Service Information Quality Guidelines (2002) provide criteria, establish procedures, and provide guidance to ensure that our decisions represent the best scientific and commercial data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. When determining which areas are critical habitat, a primary source of information should be the listing package for the species. Additional information may be obtained from a recovery plan, articles in peer reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Critical habitat designations do not signal that habitat outside the designation is unimportant to
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Navarretia fossalis. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be implemented under section 7(a)(1), and to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available information at the time of the action. We specifically anticipate that federally funded or assisted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Methods

As required by section 4(b)(2) of the Act, we use the best scientific data available in determining areas that are essential to the conservation of Navarretia fossalis. The Recovery Plan for Vernal Pools of Southern California (Recovery Plan) outlines areas essential to the conservation of seven species, including Navarretia fossalis (as well as San Diego fairy shrimp (Branchinecta sandiegonensis), Riverside fairy shrimp (Streptocephalus woottoni), Eryngium arstulatum var. parishii (San Diego buttoncelery), Pogogyne nudiuscula (Otay mesa mint), Pogogyne abramsii (San Diego mesa mint), Orcuttia californica (California Orcutt grass)) (Service 1998). The Recovery Plan also outlines steps necessary to stabilize and recover these species to the point where protection under the Act is no longer required. The Recovery Plan uses Management Areas to define regional conservation needs. We have used these Management Areas to aid in identifying habitat essential to the conservation of the species. The areas essential for conservation of this species are detailed in appendices F and G of the Recovery Plan. This and additional information gathered after the completion of the Recovery Plan, are the basis for identifying the essential habitat for Navarretia fossalis.

To map and define the areas listed in the Recovery Plan we used research and survey observations published in peerreviewed articles, regional Geographic Information System (GIS) vegetation, soil, and species coverages, and data compiled in the CNDDB. Information about Navarretia fossalis was mapped using GIS and refined indicating the essential habitat associated with each of the occurrences. Areas not containing the primary constituent elements were not included in the boundaries of proposed critical habitat, whenever possible. After creating a GIS coverage of the essential areas, we created legal descriptions of the essential areas. We used a 100meter grid to establish Universal Transverse Mercator (UTM) North American Datum 27 (NAD 27) coordinates which, when connected, provided the boundaries of the essential areas.

The areas of essential habitat were then analyzed with respect to sections 4(a)(3) and 4(b)(2) of the Act, and any areas that should not be included or excluded from proposed critical habitat were identified. Primary Constituent Elements

In accordance with section 3(5)(A)(i) of the Act and regulations at 50 CFR 424.12, in determining which areas to propose as critical habitat, we are required to base critical habitat determinations on the best scientific data available and to consider those physical and biological features (primary constituent elements (PCEs)) that are essential to the conservation of the species, and that may require special management considerations or protection. These include, but are not limited to: Space for individual and population growth and for normal behavior; water, air, light, minerals, or other nutritional or physiological requirements; space for growth, development and reproduction, including the space necessary for pollinators to live; and habitats that are protected from disturbance or are representative of the historic geographical and ecological distributions of a species.

The specific biological and physical features, otherwise referred to as the primary constituent elements, which comprise Navarretia fossalis habitat are based on specific components that provide for the essential biological needs of the species as described below. Individual and Population Growth, Including Sites for Germination, Pollination, Reproduction, Pollen and Seed Dispersal, and Seed Dormancy

Navarretia fossalis is primarily associated with vernal pools (Day 1993; Service 1998) at elevations between sea level and 4,250 ft (1,300 m), and on flat to gently sloping terrain. N. fossalis occurs in vernal pools in alkali grassland habitat along the San Jacinto River in Riverside County (Bramlet 1993). The species also occasionally occurs in ditches and other artificial depressions in degraded vernal pool habitat (Moran 1977).
Areas That Provide Basic Requirements for Growth, Such as Water, Light, and Minerals

Navarretia fossalis requires areas that are ephemerally wet in the winter and spring months and dry in the summer and fall months. This type of ephemeral habitat does not allow either upland plants that live in a dry environment year round or wetland plants that require year round moisture to become established (KeelerWolf et al. 1998). These habitats then allow for specialized plants, such as the N. fossalis, to benefit from the exclusion of strictly upland and wetland plants. Areas That Support Populations of Pollinators and Seed Dispersers

Navarretia fossalis flowers from May through June. This species has evolved mechanisms to selfpollinate (Spencer 1997). The fruit of this species consists of indehiscent (i.e., not opening spontaneously at maturity to release seeds) capsules 2 to 3 millimeters long containing 5 to 25 seeds. The seeds develop a sticky, slimy coating when wet, which may retain moisture and aid in germination (Moran 1977). After fruiting, the species dries out and loses its color rapidly, and can be difficult to detect late in the dry season or in dry years. The number of individuals of N. fossalis at a given population site varies annually in response to the timing and amount of rainfall and temperature (Service 1998).

Sufficient studies to reveal possible pollinators of Navarretia fossalis have not yet been conducted. Seeds of this plant are likely dispersed locally by the flow of water throughout the vernal pool or alkali wetlands in which this plant occurs. More distant dispersal is most likely accomplished by the spiney flowerheads clinging to the fur of larger mammals or via mud containing seeds stuck to birds that visit these wetlands (pers. comm. with E. Bauder 2004)
Habitats That Are Representative of the Historic Geographical and Ecological Distribution of the Species

The distribution of Navarretia fossalis ranges from northwestern Los Angeles County and western Riverside County, south through coastal San Diego County, California to northwestern Baja California, Mexico (Day 1993; Munz 1974; Reiser 2001, CNPS 2001; CNDDB 2003). One population has been reported from San Luis Obispo County, however, the identification of this population is thought to be in error (pers. comm. with Spencer 2004). Fewer
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than 45 populations exist in the United States (CNDDB 2004). Nearly 60 percent of the known populations are concentrated in three locations: Otay Mesa in southern San Diego County, along the San Jacinto River in western Riverside County, and near Hemet in Riverside County (Service 1998). In Mexico, N. fossalis is known from fewer than 10 populations clustered in three areas: Along the international border, on the plateaus south of the Rio Guadalupe, and on the San Quintin coastal plain (Moran 1977).

Pursuant to our regulations, we are required to identify the primary constituent elements essential to the conservation of Navarretia fossalis, together with a description of proposed critical habitat. In identifying primary constituent elements, we used the best available scientific data. The physical ranges described in the primary constituent elements may not capture all of the variability that is inherent in natural systems that support N. fossalis. The primary constituent elements determined essential to the conservation of N. fossalis are:
(1) Vernal pool, alkali grassland, alkali playa, or alkali sink habitats, at elevations between sea level and 4,250 ft (1,300 m), and on flat to gently sloping terrain.
(2) Clay soils that retain water for sufficient amounts of time, especially in the winter and spring months, to support vernal pool, alkali grassland, alkali playa, or alkali sink habitats; and (3) Watershed area immediately surrounding vernal pool, alkali grassland, alkali playa, or alkali sink habitats with hydrology necessary to maintain these specialized habitats.

Description of Essential Habitat

The majority of extant populations of Navarretia fossalis exist in the United States (CNDDB 2004), and are concentrated in three locations: Otay Mesa in southern San Diego County, along the San Jacinto River in western Riverside County, and near Hemet in Riverside County (Service 1998). We have determined that 26 areas totaling approximately 31,086 ac (12,580 ha) are essential to the conservation of the species. Seventeen of these areas essential to the conservation of the N. fossalis, totaling approximately 26,785 ac (10,839 ha), are not included in (pursuant to section 4(a)(3)) or are excluded from (pursuant to section 4(b)(2)) proposed critical habitat: Lands on Marine Corps Air Station Miramar (MCAS, Miramar); ``missioncritical'' training areas on Marine Corps Base, Camp Pendleton (Camp Pendleton); areas within approved subareas of San Diego Multiple Species Conservation Program (MSCP); and areas within the approved Western Riverside Multiple Species Habitat Conservation Plan (MSHCP). Where appropriate, these areas are described briefly in the unit descriptions in the Proposed Critical Habitat Designation section. They are also shown on the maps in the Proposed Regulation Promulgation section. Military lands not included in the proposal pursuant to section 4(a)(3) are shown on the maps for information purposes only.

All areas of essential habitat for N. fossalis in the Western Riverside County Management Area occur within the Western Riverside MSHCP area, and, therefore, have been excluded from proposed critical habitat pursuant to section 4(b)(2) of the Act. These six areas are in the vicinity of Perris, Hemet, Lake Elsinore, and Temecula. The six areas are shown on a map in the Proposed Regulation Promulgation section.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the areas determined to be essential for conservation may require special management considerations or protection. Many of the sites where Navarretia fossalis occur require special management and protection. Habitat destruction and loss is the greatest threat to this species (CNDDB 2004), followed by disruption of natural hydrologic regimes that support populations of N. fossalis. Projects that occur adjacent to or distant from the location of a population of N. fossalis can alter the hydrology and thereby impact the fitness of the population (Service 1998). In some locations encroachment of exotic plants pose a threat to N. fossalis; special management is needed to limit this threat (Bramlet 1996; Service 1998).

Proposed Critical Habitat Designation

Proposed critical habitat includes Navarretia fossalis essential habitat in Los Angeles and San Diego Counties, California. Areas proposed as critical habitat are under Federal, State, local, and private ownership. The approximate area of proposed critical habitat by county and land ownership is shown in Table 1. Certain lands that are considered essential to Navarretia fossalis have not been included or have been excluded from proposed critical habitat based on our 4(a)(3) and 4(b)(2) analyses; these are summarized in Table 2.

Table 1.Approximate Proposed Critical Habitat Area (Acres(ac); Hectares (ha) for Navarretia fossalis in California by County and Land Ownership. [Estimates reflect the total area within critical habitat unit boundaries.] County Federal* Private Total Los Angeles.......................... 0 ac 596 ac 596 ac (0 ha) (241 ha) (241 ha) Riverside............................ (**) (**) (**) San Diego............................ 178 ac 3,527 ac 3,705 ac (72 ha) (1,427 ha) (1,499 ha)
Total................................ 178 ac 4,123 ac 4,301 ac (72 ha) (1,669 ha) (1,741 ha) * Federal lands include Department of Defense and other Federal land. ** Not Applicable because all lands in Riverside County that are essential for Navaretia fossalis are excluded under 4(b)(2) of the Act.
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Table 2.Approximate Essential Habitat, Excluded Essential Habitat, and Proposed Critical Habitat (Acres (ac); hectares (ha) for Navarretia fossalis in Los Angeles, San Diego, and Riverside Counties, California Total essential habitat identified for 31,086 ac
Navarretia fossalis. (12,580 ha)
Essential habitat not included in the 774 ac
proposed critical habitat designation (3,313 ha)
pursuant to section 4(a)(3) of the Act
due to an INRMP that benefits Navarretia
fossalis (Marine Corps Air Station
(MCAS), Miramar).
Essential habitat excluded from the 25,944 ac
proposed critical habitat designation (10,499 ha)
pursuant to section 4(b)(2) of the Act:
Completed and pending HCPs (San Diego
Multiple Species Conservation Program
(MSCP) and Western Riverside County
Multiple Species Habitat Conservation
Plan (MSHCP)).
Essential habitat excluded from the 67 ac
proposed critical habitat designation (27 ha)
pursuant to section 4(b)(2) of the Act:
``Missioncritical'' Department of
Defense lands (Marine Corps Base (MCB),
Camp Pendleton).
Total essential habitat excluded from 26,785 ac
proposed critical habitat. (10,839 ha)
Total essential habitat proposed as 4,301 ac

critical habitat. (1,741 ha)

Lands proposed as critical habitat are divided into five units (Units 1 through 5) based on the Management Areas in which the species occurs as identified in the Recovery Plan (Service 1998). Units 1, 4, and 5 were further divided into subunits (1A, 1B, 4A, 4B, 4C, 4D, 4E, 5A, 5B, 5C, 5D) based on their geographical location. Unit boundaries were delineated based on geographical location of vernal pools, soil types, associated watersheds, and local variation of topographic position (i.e., coastal mesas, inland valley). Descriptions of each unit and the reasons for proposing lands within each unit as critical habitat are presented below.
Unit 1 (Subunits 1A, 1B): Transverse Range Critical Habitat Unit, Los Angeles County, California (596 ac (241 ha))

The occurrences of Navarretia fossalis in northern Los Angeles County represent isolated occurrences at the northern most extent of the range of the species. Conservation biologists have demonstrated that populations at the edge of a species' distribution can be important sources of genetic variation and represent the best opportunity for colonization or recolonization (Gilpin and Soul[eacute] 1986; Lande 1999). Although the populations of N. fossalis in Los Angeles County are far removed from other known locations, these pools are possible sources of unique genetic information that will aid this species in its ability to adapt to future changes in the environment. Such characteristics may not be present in other parts of the species' range (Lesica and Allendorf 1995). For these reasons the unit is essential to the conservation of the species.

The proposed Transverse Range Critical Habitat Unit encompasses 596 ac (241 ha) within the Transverse Management Area as identified in the Recovery Plan, and includes the occupied vernal pools at Cruzan Mesa in Los Angeles County (Service 1998). Navarretia fossalis also occurs in a vernal pool in nearby Plum Canyon. Vernal pools at both sites are currently under private ownership. These vernal pools are the last remaining vernal pools in Los Angeles County. The area proposed as critical habitat in Unit 1 contains the primary constituent elements relating to the pooling basins, watersheds, underling soil substrate and topography associated with occupied vernal pools at Cruzan Mesa and Plum Canyon in Los Angeles County.
Unit 2: San Diego North Coastal Mesas Critical Habitat Unit, San Diego County, California (143 ac (64 ha))

The San Diego North Coastal Mesas Critical Habitat Unit encompasses 143 ac (64 ha) within the San Diego North Coastal Mesas Management Area as identified in the Recovery Plan and includes occupied vernal pools on Camp Pendleton and one occupied pool complex in the City of Carlsbad (Service 1998). Essential habitat within training areas defined by the Department of Defense as ``mission critical'' in the Stuart Mesa area of the Oscar One Training Area on Camp Pendleton have been excluded from the proposed critical habitat designation pursuant to section 4(b)(2) of the Act.

Within the jurisdiction of the City of Carlsbad, one occupied vernal pool complex is located at the Poinsettia Lane train station. This complex is associated with a remnant of coastal terrace habitat and is considered essential for the conservation of the species in northern San Diego County. This pool is one of the last remaining coastal occurrences of Navarretia fossalis outside the boundaries of MCB Camp Pendleton. The City of Carlsbad is developing a subarea plan as part of the Draft Multiple Habitat Conservation Program (MHCP) in northwestern San Diego County. However, the Poinsettia Lane vernal pool complex is not currently covered in the City of Carlsbad's draft subarea plan. The area being proposed as critical habitat in Unit 2 contains the primary constituent elements described above relating to the pooling basins, watersheds, underling soil substrate and topography associated with the Poinsettia Lane vernal pool complex in the City of Carlsbad.
Unit 3: San Diego Central Coastal Mesas Critical Habitat Unit, San Diego County, California (143 ac (64 ha))

The San Diego Central Coast Mesas Critical Habitat Unit encompasses 143 ac (64 ha) within the San Diego Central Coast Mesas Management Area as identified in the Recovery Plan (Service 1998), and includes occupied vernal pools.

All four areas essential for the conservation of Navarretia fossalis in the Central Coast Mesas Management Area are not included in or are excluded from the proposed designation. The majority of pools in this area are on MCAS Miramar and are managed as part of the base's INRMP. Miramar's INRMP places vernal pools and vernal pool habitat in management areas where vernal pool conservation is a high priority. Therefore, areas considered essential for the conservation of N. fossalis at Miramar MCAS have not been included in proposed critical habitat pursuant to section 4(a)(3) of the Act.

Other pools in the Central Coast Mesas Management Area are included in the San Diego MSCP. This plan details a policy of ``nonetloss'' for vernal pools (City of San Diego 1997). There is currently an effort to develop a management plan for vernal pools within the MSCP that provides conservation benefit to N. fossalis. Areas considered essential for the conservation of N. fossalis within the MSCP are being excluded from
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proposed critical habitat pursuant to section 4(b)(2) of the Act. The area being proposed as critical habitat in Unit 3 contains the primary constituent elements described above relating to the pooling basins, watersheds, underling soil substrate and topography associated with occupied vernal pools.
Unit 4 (Subunits 4A, 4B, 4C, 4D & 4E): San Diego Inland Valleys Critical Habitat Unit, San Diego County, California (3,027 ac (1,225 ha))

The San Diego Inland Valleys Critical Habitat Unit encompasses 3,027 ac (1,225 ha) within the San Diego Inland Valleys Management Area as identified in the Recovery Plan (Service 1998). The five subunits proposed as critical habitat for Navarretia fossalis contain one or more occupied vernal pool complexes within the jurisdiction of the City of San Marcos and the community of Ramona.

In the community of Ramona, one of the complexes is within the boundaries of Ramona Airport. These vernal pool complexes are isolated from maritime influence and are representative of vernal pools associated with alluvial or volcanic type soils (KeelerWolf et al. 1998; Service 1998). The vernal pools in San Marcos are associated with native grassland and a unique association of multiple species of Brodiaea (Service 1998). The Recovery Plan specifically identifies these vernal pools as essential for recovery of N. fossalis because of their role in stabilizing populations and preventing habitat loss (Service 1998). This unit includes vernal pools within the easternmost edge of the geographical distribution of the species. Conservation of vernal pools in this unit will help maintain the diversity of vernal pool habitats and their unique geological substrates, and will retain the genetic diversity of these geographically distinct populations. The areas being proposed as critical habitat in Unit 4 contain the primary constituent elements described above relating to the pooling basins, watersheds, underling soil substrate and topography associated with occupied vernal pools.
Unit 5 (Subunits 5A, 5B, 5C & 5D): San Diego Southern Coastal Mesas Critical Habitat Unit, San Diego County, California (392 ac (159 ha))

The San Diego Southern Coastal Mesas Critical Habitat Unit encompasses 392 ac (159 ha) within the Southern Coastal Mesas Management Area as identified in the Recovery Plan (Service 1998), and contains several vernal pools and other physiavl features essential to the conservation of Navarretia fossalis. Three of the four subunits (5A, 5B, 5C) proposed as critical habitat contain occupied vernal pools. The majority of the land in this unit provides the essential watershed primary constituent element that contributes to the pooling basins that support N. fossalis.

The majority of pools in this Unit are part of the San Diego MSCP. There is currently an effort to develop a management plan for vernal pools within the MSCP which will provide further conservation benefit to N. fossalis. Areas considered essential for the conservation of Navarretia fossalis within the MSCP have been excluded from proposed critical habitat pursuant to section 4(b)(2) of the Act. Of the essential locations, only the vernal pools and their watersheds that occur on lands not protected by the MSCP are proposed as critical habitat. The four subunits for this region include the J15 complex or Arnie's Point and the watershed, vernal pools, and ephemeral ponds that occur on east Otay Mesa that are in the Major and Minor Amendment Areas of the MSCP.
Effects of Critical Habitat Designation

Section 7 Consultation

Section 7 of the Act requires Federal agencies, including the Service, to ensure that actions they fund, authorize, or carry out are not likely to destroy or adversely modify critical habitat. In our regulations at 50 CFR 402.2, we define destruction or adverse modification as ``a direct or indirect alteration that appreciably diminishes the value of critical habitat for both the survival and recovery of a listed species. Such alterations include, but are not limited to: Alterations adversely modifying any of those physical or biological features that were the basis for determining the habitat to be critical.'' We are currently reviewing the regulatory definition of adverse modification in relation to the conservation of the species.

Section 7(a) of the Act requires Federal agencies, including the Service, to evaluate their actions with respect to any species that is proposed or listed as endangered or threatened and with respect to its critical habitat, if any is proposed or designated. Regulations implementing this interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(4) of the Act requires Federal agencies to confer with us on any action that is likely to jeopardize the continued existence of a proposed species or result in destruction or adverse modification of proposed critical habitat. Conference reports provide conservation recommendations to assist the agency in eliminating conflicts that may be caused by the proposed action. The conservation recommendations in a conference report are advisory. If a species is listed or critical habitat is designated, section 7(a)(2) requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of such a species or to destroy or adversely modify its critical habitat. If a Federal action may affect a listed species or its critical habitat, the responsible Federal agency (action agency) must enter into consultation with us. Through this consultation, the action agency ensures that the permitted actions do not jeopardize the continued existence of the species or destroy or adversely modify critical habitat.

When we issue a biological opinion concluding that a project is likely to result in the destruction or adverse modification of critical habitat, we also provide reasonable and prudent alternatives to the project, if any are identifiable. ``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as alternative actions identified during consultation that can be implemented in a manner consistent with the intended purpose of the action, that are consistent with the scope of the Federal agency's legal authority and jurisdiction, that are economically and technologically feasible, and that the Director believes would avoid destruction or adverse modification of critical habitat. Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where critical habitat is subsequently designated and the Federal agency has retained discretionary involvement or control over the action or such discretionary involvement or control is authorized by law. Consequently, some Federal agencies may request reinitiation of consultation or conference with us on actions for which formal consultation has been completed, if those actions may affect designated critical habitat or adversely modify or destroy proposed critical habitat.

We may issue a formal conference report if requested by a Federal agency. Formal conference reports on proposed critical habitat contain an opinion that is prepared according to 50 CFR 402.14, as if critical habitat were designated. We may adopt the formal conference report as the biological opinion when the
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critical habitat is designated, if no substantial new information or changes in the action alter the content of the opinion (see 50 CFR 402.10(d)).

Activities on Federal lands that may affect Navarretia fossalis or its critical habitat will require section 7 consultation. Activities on private or State lands requiring a permit from a Federal agency, such as a permit from the Army Corps under section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from the Service, or some other Federal action, including funding (e.g., Federal Highway Administration or Federal Emergency Management Agency funding), will also continue to be subject to the section 7 consultation process. Federal actions not affecting listed species or critical habitat and actions on nonFederal and private lands that are not federally funded, authorized, or permitted do not require section 7 consultation.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat those activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation. Activities that may destroy or adversely modify critical habitat include those that appreciably reduce the value of critical habitat to Navarretia fossalis. We note that such activities may also jeopardize the continued existence of the species.

To properly portray the effects of critical habitat designation, we must first compare the section 7 requirements for actions that may affect critical habitat with the requirements for actions that may affect a listed species. Section 7 prohibits actions funded, authorized, or carried out by Federal agencies from jeopardizing the continued existence of a listed species or destroying or adversely modifying the listed species' critical habitat. Actions likely to ``jeopardize the continued existence'' of a species are those that would appreciably reduce the likelihood of the species' survival and recovery. Actions likely to ``destroy or adversely modify'' critical habitat are those that would appreciably reduce the value of critical habitat to the listed species.

Federal agencies already consult with us on activities in areas currently occupied by the species to ensure that their actions do not jeopardize the continued existence of the species. These actions include, but are not limited to:
(1) Removing, thinning, or destroying Navarretia fossalis habitat (as defined in the primary constituent elements discussion), whether by burning, mechanical, chemical, or other means (e.g., plowing, grubbing, grading, grazing, woodcutting, construction, road building, mining, mechanical weed control, herbicide application, etc.);
(2) Activities that appreciably degrade or destroy Navarretia fossalis habitat (and its primary constituent elements) include, but are not limited to, livestock grazing, clearing, disking, farming, residential or commercial development, introducing or encouraging the spread of nonnative species, offroad vehicle use, and heavy recreational use;
(3) Activities that appreciably diminish habitat value or quality through indirect effects (e.g., edge effects, invasion of exotic plants or animals, or fragmentation); and
(4) Any activity, including the regulation of activities by the Corps of Engineers under section 404 of the Clean Water Act or activities carried out by or licensed by the Environmental Protection Agency (EPA), that could alter watershed or soil characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain Navarretia fossalis habitat. These activities include, but are not limited to, altering the natural fire regime either through fire suppression or by using prescribed fires that are too frequent or poorlytimed; development, including road building and other direct or indirect activities; agricultural activities, livestock grazing, and vegetation manipulation such as clearing or grubbing in the watershed upslope from Navarretia fossalis.
(5) Road construction and maintenance, rightofway designation, and regulation of agricultural activities, or any activity funded or carried out by the Department of Transportation or Department of Agriculture that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of Navarretia fossalis habitat; (6) Licensing of construction of communication sites by the Federal Communications Commission or funding of construction or development activities by the U.S. Department of Housing and Urban Development that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of Navarretia fossalis habitat; and (7) Funding and implementation of disaster relief projects by the FEMA and the Natural Resource Conservation Service's Emergency Watershed Program, including erosion control, flood control, and stream bank repair to reduce the risk of loss of property that could result in discharge of dredged or fill material, excavation, or mechanized land clearing of Navarretia fossalis habitat or that could alter watershed or soil characteristics in ways that would appreciably alter or reduce the quality or quantity of surface and subsurface flow of water needed to maintain Navarretia fossalis habitat.

All lands proposed as critical habitat are within the geographical area occupied by the species and are essential for the conservation of Navarretia fossalis. Federal agencies already consult with us on actions that may affect N. fossalis to ensure that their actions do not jeopardize the continued existence of the species. Thus, we do not anticipate substantial additional regulatory protection will result from critical habitat designation.

Exclusions Under Section 4(b)(2) of the Act

Section 4(b)(2) of the Act states that critical habitat shall be designated, and revised, on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species.

In our critical habitat designations, we have used the provisions outlined in section 4(b)(2) of the Act to evaluate lands essential to the conservation of the subject species for possible exclusion from proposed critical habitat. Lands which we have either excluded from or not included in critical habitat based on those provisions include those covered by: (1) Legally operative HCPs that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (2) draft HCPs that cover the species, have undergone public review and comment, and provide assurances that the conservation measures for the species will be implemented and effective (i.e., pending HCPs); (3) Tribal conservation plans that cover the species and provide assurances that the conservation measures for the species will be implemented and effective; (4) State conservation plans that provide assurances that the conservation measures for the species will be implemented and effective; and (5) Service National Wildlife Refuge System
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Comprehensive Conservation Plans that provide assurances that the conservation measures for the species will be implemented and effective.
Relationship of Critical Habitat to Approved Habitat Conservation Plans Regional HCPs

As described above, section 4(b)(2) of the Act requires us to consider other relevant impacts, in addition to economic and national security impacts, when designating critical habitat. Section 10(a)(1)(B) of the Act authorizes us to issue permits for the take of listed wildlife species incidental to otherwise lawful activities. Development of an HCP is a prerequisite for the issuance of an incidental take permit pursuant to section 10(a)(1)(B) of the Act. An incidental take permit application must be augmented by an HCP that identifies implementable conservation measures to implement for the species to minimize and mitigate the impacts of the permitted incidental take.

Some areas occupied by Navarretia fossalis involve complex HCPs that address multiple species, cover large areas, and have many participating permittees. Many of the large regional HCPs in southern California have been, or are being, developed to provide for the voluntary and cooperative conservation of numerous federally listed species and rare species and their habitat. Over time, areas in the planning area are addressed per the HCP, and key areas are acquired, managed, and monitored. These HCPs are designed to implement conservation actions to address future projects that are anticipated to occur within the planning area of the HCP, to reduce delays in the permitting process.

Approved regional HCPs (e.g., those sponsored by cities, counties or other local jurisdictions) where Navarretia fossalis is addressed, provide for the protection and management of habitat essential for the conservation of the species while shifting development to nonessential areas. Regional HCP development processes provide an intensive data collection and analysis regarding habitat of N. fossalis. The process also enables us to develop a reserve system that provides for the biological needs and longterm conservation of the species (Schwartz 1999).

Completed HCPs and their accompanying Implementing Agreements (IA) contain management measures and protections for identified preserve areas that protect, restore, and enhance the value of these lands as habitat for Navarretia fossalis. These measures include explicit standards to minimize impacts to the addressed species and its habitat. In general, HCPs are designed to ensure that the value of the conservation lands are maintained, expanded, and improved for the species that they cover.

In approving these HCPs, we have provided assurances to permit holders that once the protection and management required under the plans are in place and for as long as the permit holders are fulfilling their obligations under the plans, no additional mitigation in the form of land or financial compensation will be required of the permit holders and in some cases, specified third parties.

Navarretia fossalis is covered under the San Diego MSCP and the Western Riverside MSHCP. Portions of the proposed critical habitat units warrant exclusion from the proposed designation of critical habitat under section 4(b)(2) of the Act based on the management and protection afforded under the approved and legally operative San Diego MSCP subarea plans and the Western Riverside MSHCP. We have determined that the benefits of excluding essential habitat areas within these legally operative HCPs from the proposed critical habitat designations will outweigh the benefits of including them.
Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)

Areas of essential habitat for N. fossalis in the Western Riverside County Management Area occur within the Western Riverside MSHCP area, and have been excluded from proposed critical habitat pursuant to section 4(b)(2) of the Act. The Western Riverside MSHCP was developed over a period of eight years. Participants in this HCP include 14 cities, the County of Riverside (including the Riverside County Flood Control and Water Conservation Agency, Riverside County Transportation Commission, Riverside County Parks and Open Space District, and Riverside County Waste Department), the California Department of Parks and Recreation, and the California Department of Transportation. The Western Riverside MSHCP is a subregional plan under the State's NCCP and was developed in cooperation with the California Department of Fish and Game. The MSHCP establishes a multispecies conservation program to minimize and mitigate the expected loss of habitat values of ``covered species'' and, with regard to covered animal species, their incidental take. The intent of the MSHCP is to provide avoidance, minimization, and mitigation measures for the impacts of proposed activities on covered species and their habitats. Within the 1,260,000 ac (510,000 ha) Plan Area of the MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are to be conserved. The proposed conservation of 153,000 ac (62,000 ha) will complement other existing natural and open space areas (e.g., State Parks, Forest Service, and County Park Lands). Navarretia fossalis is a covered species under the MSHCP. The MSHCP has five objectives to conserve and monitor Navarretia fossalis populations: (1) To include within the MSHCP conservation area at least 6,900 ac of suitable habitat; (2) include within the MSHCP conservation area at 13 of the known locations of the species at Skunk Hollow, the Santa Rosa Plateau, the San Jacinto Wildlife Area, floodplains of the San Jacinto River from the Ramona Expressway to Railroad Canyon, and upper Salt Creek west of Hemet; (3) to conduct surveys for the species; (4) to include with the MSHCP conservation area the floodplain of the San Jacinto River consistent with Objective 1, and maintain floodplain processes along the river to provide for the distribution of the species to shift over time as hydrologic conditions and seed bank sources change; and (5) to include with the MSHCP conservation area the floodplain along Salt Creek generally in its existing condition from Warren Road to Newport Road and the vernal pools in Upper Salt Creek west of Hemet, and maintain floodplain processes along the river to provide for the distribution of the species to shift over time as hydrologic conditions and seed bank sources change.

San Diego Multiple Species Conservation Program (MSCP)

Portions of Units 3 and 5 are excluded from proposed critical habitat because they are within the San Diego MSCP in southwestern San Diego County. The San Diego MSCP effort encompasses approximately 582,000 ac (236,000 ha) and reflects the cooperative efforts of the local jurisdictions, the State, the building industry, and environmentalists. The San Diego MSCP provides for the establishment over the permit term of approximately 171,000 ac (69,573 ha) of preserve areas to provide conservation benefits for 85 federally listed and sensitive species. The San Diego MSCP and approved subarea plans provide measures to conserve Navarretia fossalis populations on Otay Mesa. Surveys for N. fossalis are required in suitable habitat (i.e., vernal pools, ephemeral
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wetlands, and seasonally ponded areas). These lands are to be permanently maintained and managed for the benefit of N. fossalis and other covered species. The eastern portion of Otay Mesa includes Major and Minor Amendment Areas. These areas require a special permitting process; therefore, we included them in this critical habitat proposal. Other Regional NCCPs and HCPs

There are other regional NCCP/HCP efforts under way in southern California that have not yet been completed but which, upon approval, will provide conservation benefits to Navarretia fossalis. Lands within these HCPs are not excluded from consideration for proposed critical habitat. The Draft Multiple Habitat Conservation Program (MHCP) in northwestern San Diego County includes approximately 112,000 ac (45,324 ha) within the study area. Currently, seven cities are participating in the development of the MHCP: Carlsbad, Encinitas, Escondido, San Marcos, Oceanside, Vista, and Solana Beach. Coverage for N. fossalis has not yet been determined for this plan and, therefore, we propose critical habitat within the planning area.
(1) Benefits of Inclusion. The principal effect of designated critical habitat is that federally funded or authorized activities within critical habitat may require consultation under section 7 of the Act. Consultation ensures that action entities avoid adverse modification of critical habitat. Currently approved and permitted HCPs and NCCP/HCPs ensure the longterm survival of addressed species. HCPs or NCCP/HCPs and IAs include management measures and protections for conservation lands designed to protect, restore, and enhance their value as habitat for covered species and thus provide benefits to the species well in excess of those that would result from a critical habitat designation.
(2) Benefits of Exclusion. The benefits of excluding lands within HCPs from critical habitat designation include carrying out the assurances provided by the Service to landowners, communities, and counties in return for their voluntary adoption of the HCP, including relieving them of the additional regulatory burden that might be imposed by critical habitat. Many HCPs become the basis for regional conservation plans consistent with the recovery objectives for listed species covered within the plan area. Many of these HCPs provide conservation benefits to unlisted, rare species. Imposing

FOR FURTHER INFORMATION CONTACT Mr. Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife Office (telephone (760) 4319440; facsimile (760) 4319618).