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DEPARTMENT OF THE INTERIOR

Treasury Department

CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AU06

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon; Evaluation of Economic Exclusions From August 2003 Final Designation

DATES: This rule becomes effective on September 12, 2005.

DOCUMENT SUMMARY: We, the Fish and Wildlife Service (Service), have re-evaluated the economic exclusions made to our previous final rule (68 FR 46683; August 6, 2003), which designated critical habitat pursuant to the Endangered Species Act of 1973, as amended (Act), for 4 vernal pool crustaceans and 11 vernal pool plants. A total of approximately 858,846 acres (ac) (347,563 hectares (ha)) of land are now designated critical habitat. This reflects exclusion of lands from the final designation for economic reasons, pursuant to section 4(b)(2) of the Act. This designation also reflects the lands previously confirmed for exclusion under 4(b)(2) of the Act for noneconomic reasons (70 FR 11140; March 8, 2005). The noneconomic exclusions include the boundaries of various Habitat Conservation Plans, National Wildlife Refuges and National fish hatchery lands (33,097 ac (13,394 ha)), State lands within ecological reserves and wildlife management areas (20,933 ac (8,471 ha)), Department of Defense lands within Beale and Travis Air Force Bases as well as Fort Hunter Liggett and Camp Roberts Army installations (64,259 ac (26,005 ha)), Tribal lands managed by the Mechoopda Tribe (644 ac (261 ha)), and the Santa Rosa Plateau Ecological Reserve (10,200 ac (4,128 ha)) from the final designation.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

Designation of Critical Habitat Provides Little Additional Protection to Species

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

While attention to and protection of habitat is paramount to successful conservation actions, we have consistently found that, in most circumstances, the designation of critical habitat is of little additional value for most listed species, yet it consumes large amounts of conservation resources. Sidle (1987) stated, ``Because the Act can protect species with and without critical habitat designation, critical habitat designation may be redundant to the other consultation requirements of section 7.'' Currently, only 464 species or 37 percent of the 1,264 listed species in the U.S. under the jurisdiction of the Service have designated critical habitat.

We address the habitat needs of all 1,264 listed species through conservation mechanisms such as listing, section 7 consultations, the Section 4 recovery planning process, the Section 9 protective prohibitions of unauthorized take, Section 6 funding to the States, and the Section 10 incidental take permit process. The Service believes that it is these measures that may make the difference between extinction and survival for many species.

We note, however, that a recent Ninth Circuit judicial opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife Service, has invalidated the Service's regulation defining destruction or adverse modification of critical habitat. On December 9, 2004, the Director issued guidance to be used in making section 7 adverse modification determinations.
Procedural and Resource Difficulties in Designating Critical Habitat

The Service has been inundated with lawsuits for our failure to designate critical habitat, and we face a growing number of lawsuits challenging critical habitat determinations once they are made. These lawsuits have subjected the Service to an everincreasing series of court orders and courtapproved settlement agreements, compliance which now consumes nearly the entire endangered species 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
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provides relatively little additional protection to listed species.

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

The four vernal pool crustaceans involved in this critical habitat designation are the Conservancy fairy shrimp (Branchinecta conservatio), longhorn fairy shrimp (Branchinecta longiantenna), vernal pool fairy shrimp (Branchinecta lynchi), and vernal pool tadpole shrimp (Lepidurus packardi). The 11 vernal pool plant species are Butte County meadowfoam (Limnanthes floccosa ssp. californica), Contra Costa goldfields (Lasthenia conjugens), Hoover's spurge (Chamaesyce hooveri), fleshy (or succulent) owl'sclover (Castilleja campestris ssp. succulenta), Colusa grass (Neostapfia colusana), Greene's tuctoria (Tuctoria greenei), hairy Orcutt grass (Orcuttia pilosa), Sacramento Orcutt grass (Orcuttia viscida), San Joaquin Valley Orcutt grass (Orcuttia inaequalis), slender Orcutt grass (Orcuttia tenuis), and Solano grass (Tuctoria mucronata).

All of the above vernal pool crustaceans and plants live in vernal pools (shallow depressions that hold water seasonally), swales (shallow drainages that carry water seasonally), and ephemeral (short duration) freshwater habitats. The vernal pool habitats of the 4 vernal pool crustaceans and 11 plants addressed in this final rule have a discontinuous distribution west of the Sierra Nevada that extends from southern Oregon through California into northern Baja California, Mexico (Holland and Jain 1978, 1988; Eriksen and Belk 1999).

Wetlands are defined by plants, soils, and frequency of flooding (Cowardin et al., 1979). There is no single, correct, indisputable, ecologically sound definition for wetlands, primarily because wetlands are so diverse and because the separation between dry and wet environments lies along a continuum (Cowardin et al., 1979). Vernal pools are a type of seasonallyflooded emergent wetland. Seasonally flooded emergent wetlands are areas where surface water is present for extended periods, especially early in the growing season, but is absent by the end of the season in most years (Cowardin et al., 1979). Emergent wetlands are characterized by erect, rooted, herbaceous hydrophytes (plants that can grow in soils too waterlogged for most other plants), excluding mosses and lichens. This vegetation is present for most of the growing season in most years (Cowardin et al., 1979). One feature that distinguishes vernal pools from other seasonally flooded emergent wetlands is that they are dominated by annual rather than perennial species (Jokerst 1990, Zedler 1990).

Vernal pools form where there is a soil layer below or at the surface that is impermeable or nearly impermeable to water (Smith and Verrill 1998). Precipitation and surface runoff become trapped or perched above this layer. The restrictive soil layers underlying vernal pools are of four main types: hardpans, claypans, volcanic flows, and nonvolcanic rock. The soil parent material underlying the vernal pools greatly influences the species composition and hydrologic functioning of the vernal pool (Hanes and Stromberg 1998; Smith and Verrill 1998). Soils beneath vernal pools are extremely variable and may not be the same as soils mapped by soil surveys (Holland and Dain 1990). Vernal pools typically occur in landscapes that, on a broad scale, are shallowly sloping or nearly level, but on a fine scale may be quite bumpy. Some vernal pool landscapes are dotted with numerous rounded soil mounds known as mima mounds (Scheffer 1947).

Vernal pools begin to fill with the fall and winter rains. Before ponding occurs, there is a period during which the soil is wetted and the local water table may rise. Some pools have a substantial watershed that contributes to their water inputs; others may fill almost entirely from rain falling directly into the pool (Hanes and Stromberg 1998). Although exceptions are not uncommon, the watershed generally contributes more to the filling of larger or deeper pools, especially playa pools. Even in pools filled primarily by direct precipitation, Hanes and Stromberg (1998) report that subsurface inflows from surrounding soils can help dampen water level fluctuations during late winter and early spring. Vernal pools exhibit four major phases: (1) The wetting phase, when vernal pool soils become saturated; (2) the aquatic phase, when a perched water table develops and the vernal pool contains water; (3) a waterlogged drying phase, when the vernal pool begins losing water as a result of evaporation and loss to the surrounding soils but soil moisture remains high; and (4) the dry phase, when the vernal pool and underlying soils are completely dry (Keeley and Zedler 1998). Upland areas associated with vernal pools are also an important source of nutrients to vernal pool organisms (Eriksen and Belk 1999; Wetzel 1975). Vernal pool habitats derive most of their nutrients from detritus (decaying matter) washed into pools from adjacent uplands, and these nutrients provide the foundation for a vernal pool aquatic community's food chain. Detritus (both living and dead organic matter) is a primary food source for the vernal pool crustaceans addressed in this rule (Eriksen and Belk 1999). Because vernal pools are mostly rainfed, they tend to have low nutrient levels and dramatic daily fluctuations in pH, dissolved oxygen, and carbon dioxide (Keeley and Zedler 1998).

Both the amount and timing of rainfall in California and Oregon vary greatly from year to year. As a result, pools may fill to different extents at different times. The duration of ponding of vernal pools also varies, and in certain years some pools may not fill at all. Many characteristics of vernal pool plants and animals result from these organisms' adaptations to the highly variable and unpredictable nature of vernal pools (Holland 1976; Holland and Dains 1990; King et al. 1996; Hanes and Stromberg 1998).

Many vernal pool plants are pollinated by hostspecific ground dwelling solitary bees in the Andrenidae family (Thorp and Leong 1998; Thorp 1976; Griggs 1974 as cited in Stone et al. 1988). The lifecycles of these bees are closely tied to those of the vernal pool plants and the emergence of the adult bees from their overwintering nests within the adjacent upland habitats (within 100 meters; Leong et al. 1995) of vernal pools coincides with the flowering period of several vernal pool plant species (Lasthenia sp., Limnanthes sp., Blennosperma sp.). The upland areas provide habitat for nests, brood cells, resting and overwintering habitat for the bees so they can complete their lifecycles. These solitary, ground nesting bee species assist in pollinating and cross pollinating of several vernal pool plants (Thorp and Leong 1998).

For more information on vernal pool ecology and the species that inhabit them, see the August 6, 2003, final designation of critical habitat for the four vernal pool crustaceans and the eleven vernal pool plants (68 FR 46684) and the individual listing rules for each species (43 FR 44810; 57 FR 24192; 59 FR 48186; 62 FR 14338; 62 FR 34029). [[Page 46926]]

Previous Federal Actions

In January 2004, the Butte Environmental Council and several other organizations filed a complaint alleging that we: (1) Violated both the Act, and the Administrative Procedure Act (APA) by excluding nearly 1 million ac (405,000 ha) from the final designation of critical habitat for the 15 vernal pool species; (2) violated mandatory noticeand comment requirements under the Act and APA; and (3) engaged in an unlawful pattern, practice, and policy by failing to properly consider the economic impacts of designating critical habitat. On October 28, 2004, the court signed a Memorandum and Order in that case remanding the final designation to the Service in part. In particular, the court ordered us to: (1) Reconsider the exclusions from the final designation of critical habitat for the 15 vernal pool species, with the exception of those lands within the five California counties that were excluded based on potential economic impacts, and publish a new final determination as to those lands within 120 days; and (2) reconsider the exclusion of the five California counties based on potential economic impacts and publish a new final determination no later than July 31, 2005. The court did not alter the August 6, 2003, final lands designated as critical habitat.

In order to comply with the court order, on December 28, 2004, the Service reopened the comment period on the designation for 30 days (69 FR 77700); to solicit any new information concerning the benefits of excluding and including the lands excluded from the final rule pursuant to section 4(b)(2) of the Act on the basis of noneconomic
considerations. The final noneconomic exclusions were published in a Federal Register notice on March 8, 2005 (70 FR 11140). On June 30, 2005, a Notice of Availability of the draft Economic Analysis was published (70 FR 37739) and the public comment period reopened for 20 days on the designation to solicit any new information concerning the benefits of excluding. This final rule addresses the second requirement of the remand: The reconsideration of those lands within the five California counties; Butte, Madera, Merced, Sacramento, and Solano, that were excluded based on potential economic impacts for the 15 vernal pool species, incorporates the noneconomic exclusions (70 FR 11140), and finalizes the designation of critical habitat for the 4 vernal pool crustaceans and 11 vernal pool plants in California and Southern Oregon.

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designation of critical habitat for the 15 vernal pool species in the proposed rule published on September 24, 2002, (67 FR 59883) and subsequent Federal Register notices concerning the 15 vernal pool species (67 FR 70201 and 68 FR 12336). We requested all interested parties to submit comments on the specifics of the proposal, including information related to the critical habitat designation, unit boundaries, species occurrence information and distribution, land use designations that may affect critical habitat, potential economic effects of the proposed designation, benefits associated with critical habitat designation, potential exclusions and the associated rationale for the exclusions, and methods used to designate critical habitat.

In the December 28, 2004, reopening of public comment period for noneconomic exclusions related to critical habitat designation (69 FR 77700), we requested all interested parties to submit comments on the specifics of the proposal, including information related to amount and distribution of habitat, essential habitat, rationale for including or excluding habitat, benefits associated with including or excluding critical habitat designation, current or planned activities on proposed critical habitat, and public participation in designating critical habitat.

We contacted all appropriate State and Federal agencies, county governments, elected officials, and other interested parties and invited them to comment. This was accomplished through telephone calls, letters, and news releases faxed and/or mailed to affected elected officials, media outlets, local jurisdictions, interest groups and other interested individuals. In addition, we invited public comment through the publication of legal notices in numerous newspaper and news media throughout California and Oregon. In 2002, we provided notification of the DEA and proposed rule to all interested parties. At the request of Congressman Cardoza's Office, the Merced County Board of Supervisors, and the Stanislaus County Board of Supervisors, we held two public meetings to explain the December 28, 2004, Federal Register notice regarding the noneconomic exclusions to the public and requested that they provide comments. We provided contacts where they could direct questions regarding the proposed designation. We also posted the associated material on our Sacramento Fish and Wildlife Office Internet site following the publication on December 28, 2004. Additionally, we made available to the public upon request individual maps of the noneconomic exclusions.

On June 30, 2005, a Notice of Availability of the revised draft economic analysis was published (70 FR 37739) and the public comment period reopened for 20 days. We asked specifically for comments on the following: (1) Assumptions reflected in the economic analysis regarding land use practices and current, planned, or reasonably foreseeable activities in the subject areas, including comments or information relating to the potential effects that the designation could have on private landowners as a result of actual or foreseeable State and local government responses due to the California Environmental Quality Act; (2) Land use practices and current, planned, or foreseeable activities in the subject areas and their possible impacts on proposed critical habitats; (3) Foreseeable economic or other impacts resulting from the proposed designation of these critical habitats, including impacts that may not have been addressed in the draft economic analysis and, in particular, any impacts on small entities or families; (4) Economic and other values associated with designating critical habitat for these species; (5) Whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments; (6) The draft economic analysis noted that approximately 80 percent of the total costs are represented by 25 percent of the critical habitat. We identified that we were considering excluding those areas, which were identified in Table IV4 of the draft economic analysis as the 20 highest cost areas based on FIPS, and requested comment as to whether the Secretary should exclude these areas based on the benefits associated with exclusion or inclusion of these areas in the final critical habitat which have not already been identified. The basis of the proposed exclusion that was being considered is purely economic; (7) Whether the Secretary exclude the 35 highest cost areas based on the figures in Table IV4 of the draft economic analysis and what are the benefits of exclusion or inclusion of these areas?; (8) Whether the Secretary exclude the 50 highest cost areas based on the
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figures in Table IV4 of the draft economic analysis and what are the benefits of exclusion or inclusion of these areas?; (9) Table IV2 of the draft economic analysis details increases in the costs per home related to this critical habitat designation. In addition to any other exclusions, the Secretary considered excluding any areas identified as experiencing a perhome increase in excess of $3,000 from the designation of critical habitat; and requested commenters to identify any benefits related to the exclusion or inclusion of those areas; (10) Queried commenters on whether there any benefits or costs of the proposed designation that the draft economic analysis failed to capture?; and requested commenters to provide as much information as possible related to any costs or benefits that were not identified; and (11) Queried whether our approach to critical habitat designation could be improved or modified in any way to provide for greater public participation and understanding, or to assist us in accommodating public concern and comments.

We conducted outreach on the Notice of Availability for the draft economic analysis and reopening of the public comment period on the proposed designation by contacting Federal, State and County government representatives, local news media, and interested parties who participated or had involvement in the original designation process. The information regarding the draft economic Analysis and other information and outreach materials were posted on the Sacramento Fish and Wildlife Office Web site and made available via the Internet at http://sacramento.fws.gov/.

We received a total of 972 comment letters during the first four comment periods, and 70 during the most recent comment period, which ended on July 20, 2005. Comments were received from Federal, Tribal, State and local agencies, and private organizations and individuals. Similar comments were grouped into several general issue categories relating specifically to the proposed critical habitat determination, the proposed exclusions, and the draft economic analysis, and are identified below. For a review of the 972 comment letters received during previous comment periods, and how these were either addressed or responded to, please refer to the our final designation of critical habitat for these species published on August 6, 2003 (68 FR 46683) and our reevaluation of noneconomic exclusions published on March 8, 2005 (70 FR 11140).

Of the 71 comment letters received during our most recent, 20day public comment period, 18 letters contained comments of a biological nature that did not relate to the draft economic analysis or to economic issues related to the critical habitat designation. Nearly all of the letters received contained some comments relating to economic issues. We received comments from private landowners, private conservation organizations, development and investment companies, City and County governmental bodies, chambers of commerce, members of congress, and concerned citizens. We reviewed all comments received for substantive issues and new information regarding the vernal pool plants and vernal pool crustaceans. Similar comments were grouped into general issue categories relating specifically to the proposed critical habitat determination and the DEA and are identified below.

Peer Review

The proposed designation of critical habitat for the 15 vernal pool species was peer reviewed by six biologists who have knowledge of vernal pool ecosystems and the 15 species addressed in this rule. Two of the reviewers strongly endorsed the approach in the proposal that protecting vernal pools in the context of surrounding upland watersheds is crucial for the conservation and longterm survival of the listed vernal pool species, and stated that the rule placed appropriate emphasis on protecting intact vernal pool complexes. The reviewers also cited the importance of conserving a wide range of vernal pool habitat types and biological diversity. For a discussion of the peer review of vernal pool critical habitat designation, please refer to our August 6, 2003, final designation (68 FR 46683).

Comments From States

Section 4(i) of the Act states, ``the Secretary shall submit to the State agency a written justification for [her] failure to adopt regulations consistent with the agency's comments or petition.'' Comments previously received from State agencies regarding the September 24, 2002, proposal to designate critical habitat for the 15 vernal pool species (67 FR 59983) are discussed in the August 6, 2003, final designation (68 FR 46683). There were no State agency comments received during the December 28, 2004, reopening of public comment period (69 FR 77700), and no State agency comments were received as part of the 20day public comment period on the draft economic analysis that ended on July 20, 2005 (70 FR 37739).
Other Public Comments and Responses

Comments Related to the Designation Process

Comment 1: Two commenters pointed out that the 20day public comment period was too short and did not meet the 60day standard established by Executive Order 12866.

Our Response: Pursuant to our implementing regulations at 50 CFR 424.16(c)(2), we are required to provide at least a 60day public comment period on any proposal to list, delist, or reclassify a species, or designate or revise critical habitat. On August 6, 2003, we finalized critical habitat for these 15 vernal pool species. As part of the process of that rulemaking we had an initial 60day public comment period on our proposal of critical habitat (70 FR 37739), which was extended an additional 28 days. On November 21, 2002, during this public comment period, a draft economic analysis of that proposal was released with 32 days left in the public comment period (67 FR 70201). On March 14, 2003, the public comment period for the draft economic analysis was reopened for an additional 14 days (68 FR 12336). In addition, on December 28, 2004, we opened a 30day public comment period (69 FR 77700) on the noneconomic exclusions that were included in our August 6, 2003, final rule (68 FR 46683). As such, we believe that our original designation was in compliance with our implementing regulations.

In January 2004, the Butte Environmental Council and several other organizations filed a complaint alleging that our designation of critical habitat for the 15 vernal pool species was unlawful. On October 28, 2004, the court signed a Memorandum and Order in that case remanding the final designation to the Service in part. In particular, the court ordered us to: (1) Reconsider the exclusions from the final designation of critical habitat for the 15 vernal pool species, with the exception of those lands within the five California counties that were excluded based on potential economic impacts, and publish a new final determination as to those lands within 120 days; and (2) reconsider the exclusion of the five California counties based on potential economic impacts and publish a new final determination no later than July 31, 2005. The court did not alter the August 6, 2003, final lands designated as critical habitat. A part of this reconsideration process, we reopened the public comment period for 30 days
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(69 FR 77700); to solicit any new information concerning the benefits of excluding and including the lands excluded from the final rule pursuant to section 4(b)(2) of the Act on the basis of noneconomic considerations. The final noneconomic exclusions were published in a Federal Register notice on March 8, 2005 (70 FR 11140). On June 30, 2005, a Notice of Availability of the draft Economic Analysis was published (70 FR 37739) and the public comment period reopened for 20 days on the designation to solicit any new information concerning the benefits of excluding. The public comment period on the revised economic analysis was limited to 20 days due to the court ordered time frame to publish our final determination.

However, we believe that having the public comment period on the previous proposal for a total of 132 days and on our reconsideration of the exclusions in the previous final designation for an additional 50 days is consistent with our regulations at 50 CFR 424.16(c)(2).

Comment 2: One comment letter asserted the PCEs are so general and vague that it would be difficult to identify if one was in an area containing PCEs, and that the PCEs as written, violate the Alameda whipsnake standard as defined in Home Builders Ass'n of Northern Cal. v. U.S. Fish and Wildlife Serv. (268 F. Supp. 2d).

Our Response: The two PCEs contained in the final rule for the four crustacean species have been expanded to four PCEs in an effort to more effectively describe critical habitat and to meet the standard identified in Home Builders Ass'n of Northern California. The 11 plant species have two PCEs which have been refined to better describe the characteristics that describe their habitat. These PCEs have been developed using the best available scientific information on the characteristics the species need to survive and reproduce. See the ``Primary Constituent Elements'' section below for a complete description of the PCEs for each species addressed by this rule.

Comment 3: On commenter asserted that any designations issued prior to the August 6, 2004, ruling in the Gifford Pinchot Task Force et al. v. USFWS case (378 F.3d 1059, 1070 (Ninth Cir. 2004)) have not properly accounted for the resulting recovery standard and mitigation requirements and that we should withdraw the designation and reconsider the economic impacts.

Our Response: This designation of critical habitat, and associated exclusions, for the 15 species is the result of a reevaluation of essential habitat for the species throughout their range, and not just the five counties excluded in the original rule designating critical habitat. In the course of establishing this designation, we have taken into account the direction provided by the Ninth Circuit in Gifford Pinchot.

Comment 4: One commenter provided a lengthy legal analysis of our approach to combining the costs of listing actions with critical habitat designations, and found our approach unsatisfactory in light of a District of Columbia District Court Decision (Cape Hatteras, 344 F. Supp. 2d).

Our Response: In conducting economic analyses, we are guided by the 10th Circuit Court of Appeal's ruling in the New Mexico Cattle Growers Association case (248 F.3d at 1285), which directed us to consider all impacts, ``regardless of whether those impacts are attributable co extensively to other causes.'' The draft economic analysis estimates the total cost of species conservation activities without subtracting the impact of preexisting baseline regulations (i.e., the cost estimates are fully coextensive). By identifying the total costs attributable to listing, including the designation of critical habitat, the draft economic analysis complies with direction from the U.S. 10th Circuit Court of Appeals.

Comment 5: One commenter suggested that the Secretary of Interior should not have broad discretion to override critical habitat designation decisions that are made by biologists because it opens the door for political manipulation.

Our Response: Section 4(b)(2) of the Act requires us to designate critical habitat on the basis of the best scientific and commercial information available, and to consider the economic and other relevant impacts of designating a particular area as critical habitat. We may exclude areas from critical habitat upon a determination that the benefits of exclusions outweigh the benefits of specifying such areas as critical habitat as long as those exclusions do not result in the extinction of the listed species. The Congressional Record is clear that Congress contemplated occasions where the Secretary could exclude the entire designation. In addition, the discretion that Congress anticipated would be exercised in section 4(b)(2) of the Act is extremely broad. ``The consideration and weight given to any particular impact is completely within the Secretary's discretion'' (Congressional Research Service 1982).

Comment 6: A commenter has asserted that there may be a conflict of interest, because we have contracted with Dr. David Sunding and CRA International to develop the economic analysis of this designation of critical habitat for the 15 vernal pool species because he previously conducted a study of critical habitat economics funded by the building industry and other commercial interests. The commenter suggests that the use of an economic model originally developed in the course of this study is inappropriate.

Our Response: In asking the court to remand the original rule to the Service, we explicitly acknowledged that additional effort must be made in conducting the economic analysis in order to allow the Secretary to make exclusions on the basis of economics under section 4(b)(2). The economic analysis performed by CRA International used pubic data and information and provided for more specificity in identifying effects than any of our previous economic analyses. We believe that this approach is consistent with the spirit of the Service's representations to the court. In fact, the 4(b)(2) exclusions differ markedly from those included in our original rule. To our knowledge, CRA is the only economic contractor performing this type economic analysis with this degree of precision on a landscape basis.

We do not believe that hiring Dr. David Sunding and CRA International to conduct the economic impact analysis of this critical habitat designation, considering his prior receipt of research funding from the building industry, establishes a conflict of interest. CRA International performed a conflict check prior to initiating work on the current study and no conflicts were discovered. Neither CRA nor Dr. Sunding holds any financial interests that would be benefited as an outcome of the analysis and subsequent critical habitat designation.

Hiring a new firm, CRA, to prepare an independent economic analysis of this proposed regulation serves two purposes. First, it provides a second estimate of overall impacts that can be compared with the cost analysis that supported the 2003 final designation. Second, the new analysis provides additional detail regarding potential costs at sub county level that was not provided in the 2003 analysis, allowing for a refinement of the 4(b)(2) decision process.

We note that the total impact estimates in the two reports are very similar. In the 2003 analysis, the estimate of the total costs of section 7 consultation related to the vernal pool species was estimated to be $1.4 billion over twenty years. In CRA's analysis,
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total impacts are estimated to be $0.9 billion over twenty years. CRA reports impacts that are 65 percent of those in the 2003 study, while considering critical habitat acreage that is 75 percent of the 2003 critical habitat. The main distinction between the studies is that the CRA analysis facilitates a more spatially precise definition of impacts.

Comment 7: One commenter asserted that we violated the Act by failing to distinguish between those designated vernal pool systems that are occupied and those that are not.

Our Response: Each of the critical habitat units may include some areas that are unoccupied by the vernal pool crustaceans and vernal pool plants. ``Unoccupied'' is defined here as an area that contains no hatched vernal pool crustaceans or observed aboveground vernal pool plants, and that is unlikely to contain a viable cyst or seed bank. While section 4(b)(2) of the Act states that critical habitat shall be designated on the basis of the best available scientific data, determining the specific areas that the vernal pool crustaceans or vernal pool plants occupy is difficult because, depending on climatic factors and other natural variations in habitat conditions, the size of the localized area in which aboveground plants or hatched crustaceans appear may fluctuate dramatically from one year to another. In some years, individuals may be observed throughout a large area, and in other years they may be observed in a smaller area or not at all. Because it is logistically difficult to determine how extensive the cyst or seed bank is at any particular site, and because hatched vernal pool crustaceans or aboveground vernal pool plants may or may not be present in all vernal pools within a site every year, we cannot quantify in any meaningful way what proportion of each critical habitat unit may actually be occupied by the vernal pool crustaceans or vernal pool plants at any one time. Due to this difficulty in differentiating between occupied and unoccupied habitat, areas of unoccupied habitat may be interspersed with areas of occupied habitat in each unit.

The inclusion of unoccupied habitat in our critical habitat units reflects the dynamic nature of the habitat and the life history characteristics of the vernal pool crustaceans and vernal pool plants. Unoccupied areas provide areas into which populations might expand, provide connectivity or linkage between groups of organisms within a unit, and support populations of pollinators and seed dispersal organisms. We have designated both occupied and unoccupied areas based on the criteria in the Act and based on our belief that they are in need of special management or protection.

Comments Related to Cooperative Efforts

Comment 8: One commenter believed that this designation would hinder essential voluntary conservation efforts (Habitat Conservation Plan (HCP), Natural Communities Conservation Program (NCCP), etc.), both ongoing and in the future.

Our Response: HCPs are one of the most important tools for reconciling land use with the conservation of listed species on non Federal lands. We anticipate that future HCPs and those in progress within the range of the 15 vernal pool species will include them as a covered species and provide for their long term conservation. We expect that HCPs undertaken by local jurisdictions (e.g., counties and cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long term conservation of the species. If an HCP that addresses the vernal pool species as covered species is ultimately approved, we will reassess the critical habitat boundaries in light of the HCP. If, consistent with available funding and program priorities, we elect to revise this designation, we will do so through a subsequent rulemaking.

The designation of critical habitat should not deter participation in the NCCP or HCP processes. Approvals issued under these processes include assurances of no additional mitigation through the HCP No Surprises regulation (63 FR 8859).

Comment 9: Numerous commenters suggested that we should exclude Placer County because the County is working on an HCP (the Placer County Conservation Plan) that would provide for the protection of the species addressed in this rule. Another commenter suggested that because the Placer Ranch development proposes to protect vernal pools and other wetlands and will mitigate impacts to any aquatic resources that their property should be excluded from this designation.

Our Response: We support and encourage the development of HCPs and conservation plans, and encourage developments to incorporate listed species protections and mitigations into their development plans. HCPs are one of the most important tools for reconciling land use with the conservation of listed species on nonFederal lands. We expect that HCPs undertaken by local jurisdictions (e.g., counties and cities) and other parties will identify, protect, and provide appropriate management for those specific lands within the boundaries of the plans that are essential for the long term conservation of the species.

We do not, however, adjust the designation of critical habitat for listed species based on future planning efforts where the specific protections for listed species are not known and where the public has not yet had the opportunity to comment on those protection measures. If an HCP that addresses the vernal pool species as covered species is ultimately approved, we will reassess the critical habitat boundaries in light of the HCP. If, consistent with available funding and program priorities, we elect to revise this designation, we will do so through a subsequent rulemaking. For the standards needed for an HCP to alter the designation of critical habitat see the ``Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' section below.

The economic analysis on the critical habitat for the 15 vernal pool species identified Placer County as an area with significant costs associated with the designation of critical habitat for the vernal pool fairy shrimp. As a result of the economic analysis, the Secretary has determined that it is appropriate to exclude the majority of critical habitat in western Placer County from the designation (See Relationship of Critical Habitat to Economic ImpactsExclusions Under Section 4(b)(2) of the Act).

Comment 10: One commenter asserted that since the Western Riverside County Multispecies HCP (MSHCP) was not mentioned in the conservation efforts section of our Draft Recovery Plan for Vernal Pool Ecosystems of California and Southern Oregon we must have determined that this effort serves no conservation benefit for vernal pool fairy shrimp and, therefore, does not meet the criteria for excluding areas from the critical habitat designation. Another commenter asserted the provisions of the MSHCP are not sufficient to ensure recovery of the vernal pool fairy shrimp.

Our Response: We discussed the conservation benefits of the, then draft, Western Riverside County MSCHP at length in our August 6, 2003, final rule designating critical habitat for the four vernal pool crustaceans and eleven vernal pool plants (68 FR 46683). In that discussion we determined that the proposed efforts, including conservation on approximately 153,000 ac (62,000 ha), were sufficient to warrant excluding Unit 33 for the vernal pool fairy shrimp. The Western Riverside County MSCHP was finalized on June 22, 2004. For a [[Page 46930]]
complete description of our decision on excluding Unit 33 based on the content of the Western Riverside County MSHCP see our August 6, 2003, final rule (68 FR 46683).
Comments Related to the Impacts of Critical Habitat Designation

Comment 11: Designation will threaten the California State University (CSU) Campus development in west Placer County and prevent the development of higher learning opportunities.

Our Response: The area proposed for the development of the CSU Campus in west Placer County is within a census tract that has been excluded from designation of critical habitat on economic grounds under section 4(b)(2) of the Act.

Comment 12: Several commenters requested that we modify the areas proposed for designation as critical habitat either to increase the protections afforded the species or in an effort to better facilitate local longrange planning efforts and reduce economic impacts to private landowners.

Our Response: In developing our proposal of critical habitat for the 15 vernal pool species, we identified those areas that, based on the scientific and commercial data available, we have determined contain essential occurrences of each of the species and/or are defined by the physical and biological features essential to their conservation. We used a number of criteria in defining critical habitat including, but not limited to, the known species occurrence and distribution data, habitat types, degree of habitat fragmentation, soil and landform relationships, connectivity and dispersal factors, and conservation biology principles. After refining our proposal and weighing the best available information, we conclude that the areas designated by this final rule, including currently occupied and unoccupied areas, are essential for the conservation of these species.

We also excluded lands from the final designation that may contain vernal pool habitat, the vernal pool species, and the Primary Constituent Elements (PCEs), but that we determined to not be essential to the conservation of the vernal pool crustaceans and vernal pool plants. We believe that we used the best scientific and commercial information available in determined those areas essential for the 15 vernal pool species that were proposed as critical habitat and subsequently finalized.

Comments Related to Information Quality

Comment 13: One commenter requested that we incorporate the results of Dr. Bob Holland's biogeographical research project, as presented at the Western Section of the Wildlife Society meetings, into the designation process.

Our Response: It is the goal of the Service to utilize the most recent scientific information available. In developing critical habitat designations, we analyze all pertinent scientific and commercial information available to make our final determinations. In the development of this designation, we contacted numerous species experts and other members of the scientific community, including Dr. Holland.

Comment 14: Two letters commented that while 2,213 ac (896 ha) of the Placer Ranch development were designated as critical habitat, only 7 ac (~3 ha) are actually classified as vernal pools and that designating all these acres violates the Act.

Our Response: Placer Ranch has been excluded from this final rule designation. For a more detailed discussion, please see the section ``Relationship of Critical Habitat to Economic ImpactsExclusions Under Section 4(b)(2) of the Act'' below.

Comment 15: Another commenter requested that poor quality vernal pool systems and those designated areas lacking the PCEs be excluded from the designation.

Our Response: Poor quality vernal pool systems are not necessarily void of listed vernal pool crustaceans or plants, and are candidates for active restoration projects. In designating critical habitat, we have considered how this designation highlights habitat that needs special management considerations or protection and helps ensure that all local habitat conservation planning efforts are consistent with conservation objectives for these species. Once a vernal pool habitat has been protected from direct filling, it is still necessary to ensure that the habitat is not rendered unsuitable for vernal pool species because of factors such as altered hydrology, contamination, nonnative species invasions, other incompatible land uses or neglect. Because their condition is already marginalized, degraded habitats are likely to be more vulnerable to these threats than pristine systems and in need of special management actions.

When determining critical habitat boundaries, we made every effort to avoid designating developed areas such as buildings, paved areas, boat ramps and other structures that lack the PCEs for the 15 vernal pool species. Any such structures inadvertently left inside critical habitat boundaries are not considered part of the unit. This also applies to land on which structures sit directly. Therefore, Federal actions limited to these areas would not trigger section 7 consultations, unless they affect the species and/or primary constituent elements in adjacent critical habitat.

Comments Related to Species Viability

Comment 16: One commenter suggested it is essential that the vernal pool systems on Travis Air Force Base (AFB) be designated as critical habitat to ensure the recovery potential of these species.

Our Response: The Act requires that the Secretary of the Interior shall designate or revise critical habitat based upon the best scientific and commercial data available, after taking into consideration the economic impact, impact to national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if she determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless the failure to designate such area as critical habitat will result in the extinction of the species concerned. The two AFBs were not eligible for designation through operation of section 4(a)(3)(B) of the Act as they had approved Integrated Natural Resource Management Plans (INRMPs), which provided for the conservation of the species. For a detailed discussion of our noneconomic exclusion analysis used in our final designation of critical habitat for the 15 vernal pool species, please refer to our August 6, 2003, final designation (68 FR 46683) and in the ``Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' section below.

Comment 17: We received one comment stating that core recovery areas need to be designated as critical habitat in order to ensure that recovery will occur.

Our Response: We recognize that designation of critical habitat may not include all of the habitat areas that may eventually be determined to be necessary for the conservation of the species. For these reasons, critical habitat designations do not signal that habitat outside the designation is unimportant or may not be required for the conservation of the species. Areas outside the critical habitat designation will continue to be subject to conservation actions that may be
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implemented under section 7(a)(1), the regulatory protections afforded by the section 7(a)(2) jeopardy standard, and the applicable prohibitions of section 9 of the Act, as determined on the basis of the best available information at the time of the action. 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 should not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if new information available to these planning efforts calls for a different outcome. Comments Related to Economic Issues

Comment 18: Several commenters stated that the DEA underestimated the delay in project completion resulting from Section 7 consultation.

Our Response: Delay times resulting from section 7 consultation were calculated based on a review of available biological opinions. Delay time was calculated based on the average number of days from submission of a completed application to the date of a final decision. We are provided with 90 days to complete a biological opinion and 45 days to issue the biological opinion to the consulting agency, for a total of 135 days from initiation to issuance (50 CFR 402.14(e)). According to the DEA (CRA International 2005) the average time for completion of a section 7 consultation is 111 days, well within our statutory timeframes.

Comment 19: Several comment letters stated that vernal pool mitigation costs in Sacramento and Placer Counties are higher than the figure used in the DEA.

Our Response: Mitigation costs were derived from a survey of mitigation banks, developers and consultants familiar with the permitting process. We believe that these data represent the best available information on mitigation costs in the affected counties.

Comment 20: One commenter stated that the DEA omits impacts related to the Lincoln Bypass and Placer Parkway projects.

Our Response: Placer County Transportation Planning Authority is in the process of developing the Tier 1 environmental report for the Placer Parkway project. Project alternatives have yet to be finalized but are expected to be mapped by September 2005. The Lincoln Bypass project is more advanced. The EIR document is complete and pending final approval; construction is anticipated to begin within two years.

The Lincoln Bypass project is entirely within Census Tract 06061021303. The Placer Parkway will likely be within Census Tract 06061021301. We note that these tracts are already within the most economically impacted group of census tracts, so inclusion of additional impacts is unlikely to have a meaningful effect on the relative ranking of these tracts.

Comment 21: The Sacramento Area Council of Governments (SACOG) wrote to comment on the population growth figures used in the DEA. The SACOG provided new forecasts that it believes are more applicable than the forecasts used in the DEA.

Our Response: Based on public comments offered by SACOG, Blueprint growth projections to 2025 by census tract were compared with the earlier growth forecasts furnished by SACOG. For the majority of census tracts, the projections were similar and substitution of the Blueprint forecasts would not have a material effect on the relative ranking of impacts by census tract.

We note that the Blueprint forecast differed substantially from earlier SACOG forecasts for Census Tract 06067008701 in Sacramento County. In this instance, the Blueprint forecast indicated that at least 12,000 fewer dwelling units would be constructed by 2025. Even in this case, however, use of the Blueprint data would not have a material effect on the relative ranking of this tract since it would remain the most economically impacted census tract in the sample.

Comment 22: One comment letter noted that the Placer Vineyards Specific Plan straddles two census tracts in Placer County.

Our Response: Since a single development accounts for a significant fraction of growth in this area, segregating impacts by Census Tract may be artificial. Thus, impacts for tracts 06061020902 and 06061021301 are aggregated in the final analysis. We excluded both census tracts from this final rule based on economic impacts. For a more detailed discussion, please see the section ``Relationship of Critical Habitat to Economic ImpactsExclusions Under Section 4(b)(2) of the Act'' below.

Comment 23: Several comment letters stated that the DEA failed to provide a balanced assessment of economic benefits and costs in relation to the proposed critical habitat designation. One commenter also included a general list of potential benefits that may be associated with the designation of critical habitat and suggested that the Service should include such effects in its economic analysis.

Our Response: Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. The Service's approach for estimating economic impacts includes both economic efficiency and distributional effects. The measurement of economic efficiency is based on the concept of opportunity costs, which reflects the value of goods and services foregone in order to comply with the effects of the designation (e.g., lost economic opportunity associated with restrictions on land use). Where data are available, the economic analyses attempt to measure the net economic impact. However, no data were found that allowed for the measurement of such an impact, nor was such information submitted during the public comment period.

Most of the other benefit categories submitted by the commenter reflect broader social values, which are not the same as economic impacts. While the Secretary must consider economic and other relevant impacts as part of the final decisionmaking process under section 4(b)(2) of the Act, the Act explicitly states that it is the government's policy to conserve all threatened and endangered species and the ecosystems upon which they depend. Thus the Service believes that explicit consideration of broader social values for the species and its habitat, beyond the more traditionally defined economic impacts, is not necessary as Congress has already recognized the social importance of such benefits through the protections of the Act.

The Service notes that as a practical matter, it is difficult to develop credible estimates of such values as they are not readily observed through typical market transactions. The Secretary places the utmost value on conserving any and all threatened and endangered species and the habitats upon which they depend and thus considers whether the economic impacts (both positive and negative) are significant enough to merit exclusion of any particular area. In the case of this rule, the Secretary made the determination that the economic benefits of exclusion exceeded the benefit of inclusion in only 23 of 158 affected census tracts. This effectively recognizes the benefits of including areas beyond the minimum necessary to avoid extinction, despite significant economic costs.

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Comment 24: Impacts relating to construction of UC Merced are assigned to the wrong Census tract.

Our Response: Impacts relating to conservation of vernal pools at the site of UC Merced are assigned to Census Tract 06047001901, which is the proper tract.

Comment 25: Several comments questioned the appropriateness of the impact methodology used to measure costs of critical habitat.

Our Response: The report was peer reviewed by two leading academics in the field of urban economics. Comments were strongly supportive of the method developed by Dr. Sunding and CRA, the data sources employed, and the assumptions underlying the analysis. Both reviewers noted that the method was consistent with generally accepted principles in urban economics, with one reviewer concluding that ``the results are credible and it is hard to see how the remaining uncertainties about the economic impacts of the regulations could be resolved by further or more sophisticated analyses.''

For information on previous public comments received refer to the August 6, 2003 final designation of critical habitat for the 15 vernal pool species (68 FR 46684) and the March 8, 2005 (70 FR 11140) final notice concerning the noneconomic exclusions.

Summary of Changes From Proposed Rule

In developing the final designation of critical habitat for the 4 vernal pool crustaceans and 11 plants, we reviewed public comments received on the proposed designation of critical habitat published on September 24, 2004 (67 FR 59884), and during reopened comment periods on noneconomic exclusions (December 28, 2004; 69 FR 77700) and on the second draft economic analysis (March 8, 2005; 70 FR 11140). In addition, we conducted further evaluation of lands proposed as critical habitat; refined our mapping methodologies; and exempted or excluded additional essential habitat from the final designation.

Specifically, we are making the following changes to the final rule from the proposed rule published on September 24, 2002: We mapped critical habitat more precisely by eliminating habitat areas that did not contain the PCEs based on specific information provided by commenters or by updated remote sensing data. Although we attempted to remove as many developed areas (areas that have no value as vernal pool habitat) as possible before publishing the proposed rule, we were not able to eliminate all developed areas. Since publication of the proposed rule, we were able to further eliminate a small amount of developed area, which has resulted in a more precise delineation of essential habitat containing one or more of the primary constituent elements. This resulted in a minor reduction in the total acreage published in the proposed rule. However, it is not possible to remove each and every one of these developed areas even at the refined mapping scale used: therefore, the maps of the designation still include areas that do not contain primary constituent elements. These areas are not being designated as critical habitat. Most of the units received some refinement, and a few were divided into subunits.

The common name for the species Castilleja campestris ssp. succulenta was changed in the final rule (from succulent owl'sclover to fleshy owl'sclover) to reflect the name used under the listing of the species (62 FR 14338). This was done to avoid confusion between the species' listing and the designation of critical habitat for it.

We exempted lands administered by the Department of Defense on Beale Air Force Base and Travis Air Force Base under section 4(a)(3)(B) of the Act (70 FR 11140). Lands we considered, but excluded from the final designation under section 4(b)(2) of the Act for noneconomic reasons included (1) lands administered by the U.S. Fish and Wildlife Service on the Kern, Sacramento, San Francisco Bay, and San Luis National Wildlife Refuges and the Colman National Fish Hatchery (70 FR 11140 and 68 FR 46684) (2) 16,033 ac (6,488 ha) of lands administered by the Bureau of Land Management within the Carrizo Plain National Monument (see Effects of Critical Habitat section below); (3) land owned and managed by the Mechoopda Tribe (70 FR 11140 and 68 FR 46684); (4) lands administered by Department of Defense at Fort Hunter Liggett and Camp Roberts (70 FR 11140 and 68 FR 46684) (5) lands owned and managed by the California Department of Fish and Game within the Battle Creek, Big Sandy, Grizzly Island, Hill Slough, North Grasslands, and Oroville Wildlife Areas, and within the Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, Stone Corral, and Thomes Creek Ecological Reserves (70 FR 11140 and 68 FR 46684); and (4) lands within the Skunk Hollow HCP, the Western Riverside Multiple Species HCP, Santa Rosa Plateau Ecological Reserve, and San Joaquin Multiple Species Conservation Plan (70 FR 11140 and 68 FR 46684). We excluded an additional 358,699 ac (145,160 ha) of land in 23 census tracts under section 4(b)(2) of the Act for economic reasons (see Table 2 and ``Application of Section 3(5)(A) and 4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' below).

We revised the primary constituent elements (PCEs) for all species to bring them into conformance with current guidance to more clearly define essential features. The new PCEs are described below in the Primary Constituent Elements section.

Critical Habitat

Critical habitat is defined in section 3 of the Act as(i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) that 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, upon a determination that such areas are essential for the conservation of the species. ``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. Because we previously designated critical habitat for these 15 vernal pool species, we already determined that critical habitat pursuant to the Act and implementing regulations was both prudent and determinable (refer to our September 24, 2002, proposal (67 FR 59983))

Critical habitat receives protection under section 7 of the Act through the prohibition against destruction or adverse modification of such 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 adversely affect critical habitat. However, the Act prohibits unauthorized take of listed species and requires authorization under either section 7 or section 10 of the Act for actions that are likely to result in take, including habitat alterations in some instances, regardless of whether critical habitat has been designated. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow government or public access to private lands.

To be included in a critical habitat designation, the habitat within the area occupied by the species must first have
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features that are ``essential to the conservation of the species.'' Critical habitat designations identify, to the extent known using the best scientific and commercial data available, habitat areas on which are found those physical and biological features essential to the conservation of the species (primary constituent elements ), as defined at 50 Code of Federal Regulations (CFR) 424.12(b)).

Habitat occupied at the time of listing may be included in critical habitat only if the essential features thereon may require special management or protection. Thus, we do not include

FOR FURTHER INFORMATION CONTACT Arnold Roessler, at the Sacramento Fish and Wildlife Office address above; telephone (916) 4146600; facsimile (916) 4146712.