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CFR Citation: 50 CFR Part 17

RIN ID: RIN 1018-AV38

NOTICE: Part II

DOCUMENT ACTION: Final rule.

SUBJECT CATEGORY: Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Coastal California Gnatcatcher (Polioptila californica californica)

DATES: This final rule is effective January 18, 2008.

DOCUMENT SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating revised final critical habitat for the coastal California gnatcatcher (Polioptila californica californica) under the Endangered Species Act of 1973, as amended (Act). In total, approximately 197,303 acres (ac) (79,846 hectares (ha)) of habitat in San Diego, Orange, Riverside, San Bernardino, Los Angeles, and Ventura Counties, California, are being designated as critical habitat for the coastal California gnatcatcher. This revised final designation constitutes a reduction of 298,492 ac (120,795 ha) from the 2003 revised proposed rule. We are continuing our review of whether the current listing of the coastal California gnatcatcher as a subspecies should be retained or changed, as discussed in the 2003 proposed rule to revise critical habitat, and we will publish our determination separately at a later date.

SUMMARY: Interior Department, Fish and Wildlife Service,

SUPPLEMENTAL INFORMATION

It is our intent to discuss only those topics directly relevant to the revised designation of critical habitat for the coastal California gnatcatcher (Polioptila californica californica) in this final rule. For more information on the taxonomy, biology, and ecology of the coastal California gnatcatcher, refer to the final rule listing this species as threatened published in the Federal Register on March 30, 1993 (58 FR 16742), the original proposed and final critical habitat rules published in the Federal Register on February 7, 2000 (65 FR 5946) and October 24, 2000 (65 FR 63680), respectively, and the revised proposed rule published in the Federal Register on April 24, 2003 (68 FR 20228).

Species Distribution

The coastal California gnatcatcher (Polioptila californica californica) is a member of the oldworld warbler and gnatcatcher family Sylviidae (AOU 1998. p. 3). This species occurs primarily in or near vegetation categorized as sage scrub. Within the United States, this species is restricted to coastal southern California from Ventura and San Bernardino Counties, south to the Mexican border (AOU 1957, p. 451; Atwood 1991, pp. 130131; Garrett and Dunn 1981, p. 292). An evaluation of the historic range of the coastal California gnatcatcher indicates that about 41 percent of its latitudinal distribution is within the United States and about 59 percent is within Baja California, Mexico (Atwood 1990, p. 6). An analysis based on elevational limits associated with coastal California gnatcatcher locality records found that a significant portion (65 to 70 percent) of the species' historic range may have been located in southern California rather than Baja California, Mexico (Atwood and Bolsinger 1992, p. 159). Please see ``Primary Constituent Elements'' section below for a detailed discussion of the habitat requirements of the coastal California gnatcatcher.

The species was listed as threatened on March 30, 1993, because of habitat loss and fragmentation resulting from urban and agricultural development (58 FR 16742). Aside from habitat loss and fragmentation, other management issues concern fire, nonnative plants, and predation (Mock 2004, pp. 78).

Previous Federal Actions

On October 24, 2000, we published a final rule designating approximately 513,650 ac (207,890 ha) of land in portions of Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties as critical habitat for the coastal California gnatcatcher (65 FR 63680). Following the publication of the final rule, several lawsuits were filed against the Service by multiple parties (collectively referred to as Plaintiffs), including the Natural Resources Defense Council (NRDC); Building Industry Association of Southern California; National Association of Home Builders; Foothill/Eastern Transportation Corridor; and Rancho Mission Viejo, L.L.C. (NRDC v. U.S. Dept. of Interior, CV 992496 (C.D.Cal., filed 12/20/00); Building Industry Association of Southern California et al. v. Norton, CV 017028 (D.C.C., filed 1/17/ 01), and Rancho Mission Viejo L.L.C. v. Babbitt, CV 018412 (D.D.C. filed 12/28/00)), challenging the critical habitat designation for the coastal California gnatcatcher. On June 11, 2002, the U.S. District Court for the Central District of California granted our request for a remand of the coastal California gnatcatcher critical habitat designation so that we could reconsider the economic impact of designating any particular area as critical habitat. The Court ordered us to submit a new proposed rule to the Federal Register by April 11, 2003.

We published a proposed rule to revise critical habitat for the coastal California gnatcatcher in the Federal Register on April 24, 2003, that included approximately 495,795 ac (200,595 ha) of land in Ventura, Los Angeles, Orange, Riverside, San Bernardino, and San Diego Counties (68 FR 20228). As part of the April 24, 2003 proposed rule, we also announced and sought comment on our review of the current listing classification of the coastal California gnatcatcher as a subspecies under the Act and its potential reclassification as a distinct population segment (DPS). We accepted public comments on the proposed revision of critical habitat and the listing classification until June 23, 2003.

On April 8, 2004 (69 FR 18516), we published a notice in the Federal Register announcing: (1) The availability of the draft economic analysis (DEA) of the proposed revised designation for public review (dated February 24, 2004); (2) the reopening of the public comment period on the revised proposed rule; and (3) the scheduling of public hearings on the proposed revised critical habitat
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designation and DEA for the coastal California gnatcatcher. We held public hearings on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. The second public comment period closed on May 10, 2004. During the reopened comment period and the public hearings announced in the April 8, 2004, Federal Register, we requested comments and information applicable only to proposed revised critical habitat designation and the associated DEA. We did not ask for additional public comment on the listing classification notice.

The Service initiated work on the final revised critical habitat rule and listing classification review for the coastal California gnatcatcher, but because of other courtordered priorities we did not complete these tasks. On February 8, 2007, a motion was filed by the Plaintiffs requesting the Court to direct us to finalize a revised critical habitat designation for the coastal California gnatcatcher. We reached an agreement with the Plaintiffs to complete a final designation on or before November 1, 2007. We sought and were granted an extension from plaintiffs of the November 1, 2007, deadline to December 3, 2007. On April 3, 2007, we published a notice in the Federal Register announcing the reopening of the public comment period for the April 24, 2003, proposed rule (68 FR 20228), and we accepted comments and information until May 3, 2007 (72 FR 15857). As with the April 8, 2004, notice, this April 3, 2007, notice specifically requested information only on critical habitat and the associated February 24, 2004, DEA, not the listing classification. We stated in the April 3, 2007, notice our intent to publish a listing
classification determination for the coastal California gnatcatcher at a later date, separate from the critical habitat designation. Summary of Comments and Recommendations

As discussed in the ``Previous Federal Actions'' section above, we have opened three public comment periods associated with the 2003 proposed rule to revise critical habitat for the coastal California gnatcatcher, the second and third comment periods of which also sought public comment on the associated DEA: April 24, to June 23, 2003 (68 FR 20228); April 8 to May 10, 2004 (69 FR 18516); and April 3 to May 3, 2007 (72 FR 15857). During these comment periods, we requested all interested parties to submit comments or information related to the proposed revised critical habitat designation, unit boundaries, species occurrence information and distribution, land use designations that may affect critical habitat, potential economic effects of the revised proposed designation, benefits associated with critical habitat designation, areas considered but not proposed for designation, and the associated rationale for the noninclusion/exclusion of these areas, and methods used to designate critical habitat.

We informed all appropriate entities of the opening of these comment periods, including State and Federal agencies, County governments, elected officials, and other interested parties through telephone calls, letters, and news releases sent by facsimile, by U.S. mail, and/or by electronic mail. During the April 24 to June 23, 2003, comment period, we also invited public comment through the publication of notices in the following newspapers: Los Angeles Times, Orange County Register, The PressEnterprise, San Bernardino Sun, and the San Diego UnionTribune. During the April 8 to May 10, 2004, comment period, we announced the date and times of two public hearings that were to be held on the April 24, 2003, proposed revised critical habitat designation and DEA. Hearings were held on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. Transcripts of these hearings are available for inspection (see FOR FURTHER INFORMATION CONTACT section above).

We received a total of 117 comment letters from Federal, State, and local agencies, private organizations, and individuals during the three comment periods. We reviewed all comments for substantive issues and new information regarding critical habitat or the coastal California gnatcatcher. We grouped similar comments into general issue categories relating to the proposed revised critical habitat designation and the associated DEA, and we identify them below. Substantive comments and issues raised in the public comment letters or at the hearings have either been incorporated directly into this final rule or are addressed below.

Peer Review Comments

In accordance with our policy published on July 1, 1994 (59 FR 34270), during the April 24 to June 23, 2003, comment period, we requested scientific review of the proposed revised critical habitat designation and our review of the listing classification of the coastal California gnatcatcher from 16 biologists with knowledge of the species, avian systematics, or conservation genetics. Nine of the 16 reviewers submitted comments on the listing classification review. All of these reviewers restricted their comments to the DPS and related taxonomic issues, except for technical corrections related to the proposed revised critical habitat designation. The technical corrections have been incorporated into this final rule. However, we will address the listing classification and related taxonomic issues in the final DPS determination to be published in the Federal Register separately at a later date.
Public Comments and Comments From Other Federal Agencies

Issue 1: Biological Issues

Comment 1: Some commenters suggest that we did not use the ``best available science'' or that the information we used is outdated or flawed. These commenters believe that use of flawed data incorrectly influenced where we identify proposed critical habitat, resulting in either the inclusion of too much land in proposed critical habitat or the omission of areas that we should have included in the proposed critical habitat designation. Other commenters believe that we did not describe the analytical process used to identify critical habitat with enough detail to allow the public to review the rationale for inclusion of specific parcels of land.

Our Response: Section 4(b) of the Act; our Policy on Information Standards Under the Endangered Species Act, published in the Federal Register on July 1, 1994 (59 FR 34271); and Section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106554; H.R. 5658) and the associated Information Quality Guidelines issued by us, provide criteria, establish procedures, and provide guidance to ensure that decisions made by us 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. As such, we based the proposed revised critical habitat designation for the coastal California gnatcatcher on the best available peerreviewed published literature, gray literature (non published or nonpeerreviewed survey or research reports), survey information, and vegetation data. We incorporated site specific survey information and vegetation data into our Geographic Information System (GIS) layers and used that as the basis for the revised
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critical habitat proposal. Given the scale of the designation and resource limitations, it was not possible to provide a parcelbyparcel justification of lands included in the proposed revised designation. However, we have attempted to clarify our justification for and methodology used in the delineation of the critical habitat boundaries in this revised final rule.

Comment 2: Some commenters suggested that we should not identify the entire range of the coastal California gnatcatcher as critical habitat. Other commenters suggested that we did not adequately distinguish between occupied, unoccupied, and linkage areas when delineating critical habitat.

Our Response: 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 geographic 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. In developing the revised proposed rule, we considered the geographical area occupied by the species at the time of listing, and within that broad geographical area, we identified those areas that, based on the best scientific and commercial data available, contain physical and biological features essential to the species' conservation (primary constituent elements (PCEs)). We did not include all locations within the geographical area occupied by the species where individuals have been observed, nor did we include areas outside of the geographical area occupied by the species at the time of listing as we do not consider such areas to be essential to the conservation of the species. In developing this final rule, we reviewed each critical habitat unit and, where appropriate, further refined the unit boundaries to ensure that we include only the specific areas containing the PCEs for the coastal California gnatcatcher. We identified the essential physical and biological features (PCEs) contained in each critical habitat unit. All critical habitat designated for the coastal California gnatcatcher is within the geographical area occupied by the species and is likely used by them for breeding, feeding, sheltering, or dispersing at some point in time. Please see the ``Criteria Used To Identify Critical Habitat'' section below for a detailed discussion. Thus, under the broad statutory definition of critical habitat quoted above, all critical habitat designated in this final rule is within the geographical area occupied by the species. This differs from the common perception that occupancy means the detectable presence of a species at all times throughout the breeding and nonbreeding seasons.

Comment 3: Several commenters suggested that the justification for the inclusion of linkage areas was inadequate.

Our Response: As discussed in greater detail in the ``Background'' section of the April 24, 2003, revised proposed rule and in the ``Primary Constituent Elements'' section of this final rule, available information indicates that dispersal of juvenile coastal California gnatcatchers generally requires a corridor of native vegetation (i.e., linkage) to facilitate the exchange of genetic material and provide a path for recolonization of areas from which the species has been extirpated. Therefore, natal dispersal, through corridors, is an important aspect of the biology of a nonmigratory, territorial bird such as the coastal California gnatcatcher. We identified these linkages based on survey information, vegetation maps, and the known dispersal capabilities of juvenile gnatcatchers. We are not designating as critical habitat areas that are suspected to provide a linkage between populations, but for which upon a reevaluation we have determined that we have inadequate information (e.g., some lands in Unit 8 and all lands in Unit 11).

Comment 4: Some commenters questioned how lands in San Bernardino County could be considered essential when, according to the listing rule (58 FR 16742), the species was considered extirpated from that County.

Our Response: As discussed in the ``Criteria Used To Identify Critical Habitat'' section of the April 24, 2003, proposed rule and in the same section below, at the time of listing in 1993, coastal California gnatcatchers were not known to occur in San Bernardino County except from historic museum records. However, subsequent to the publication of the final listing rule, Davis et al. (1998, pp. 362364) summarized survey efforts in San Bernardino County, documenting species occurrences, including some breed pairs, from several different locations in 1990, 1993, 1994, and 1995. Therefore, based on pre listing occupancy data and museum records, we consider San Bernardino County to have been occupied at the time of listing. As stated in the April 24, 2003, proposed rule, populations of coastal California gnatcatchers in San Bernardino County are at the northern extent of the species' inland distribution, and the elevation and vegetation in which they occur may be unique within the species' range. However, we have reevaluated the importance of lands in San Bernardino in Unit 11 and have determined that lands in Unit 11 are not essential to the conservation of the species. Therefore, we have removed lands in Unit 11 from this final designation (see ``Summary of Changes From the 2003 Proposed Rule To Revise Critical Habitat'' section below for a detailed discussion of the removal of these lands). However, we are designating as critical habitat lands in southern San Bernardino County in Unit 10 (see ``Critical Habitat Designation'' section below).

Comment 5: The U.S. Forest Service (USFS) commented that most areas of the Cleveland National Forest proposed for inclusion in critical habitat are chaparral, and do not support the PCEs of coastal California gnatcatcher habitat according to the model cited on pages 20239 through 20249 of the April 24, 2003, proposed rule. They further commented that most of the National Forest System lands proposed for designation are located at considerable distances from any coastal sage scrub.

Our Response: As discussed in the ``Background'' section of the April 24, 2003, revised proposed rule and in the ``Primary Constituent Elements'' section of this final rule, though the majority of coastal California gnatcatchers are likely restricted to sage scrub vegetation, availability of these nonsage scrub areas (including chaparral) is essential during certain times of the year, particularly during drought conditions, for dispersal, foraging, or nesting. Also, as discussed in the ``Proposed Critical Habitat Designation'' section of the April 24, 2003, revised proposed rule, Cleveland National Forest (identified in Unit 2) is occupied by a core population of the species and contains canyons and corridors that provide linkages to preserve lands adjacent to this unit. Therefore, this area on the Cleveland National Forest is included in this final designation.

Comment 6: One commenter stated that since 2003, development proposals and fires have continued to imperil the coastal California gnatcatcher and its habitat. Projects such as the South Orange County Transportation Infrastructure Improvement Project and wildfires will impact coastal sage scrub that the species depends on for survival. The commenter stated that the occurrence of such events [projects and [[Page 72013]]
wildfires] underscores the necessity of designating sufficient habitat, beyond what is presently proposed, to comply with the mandate of the Act, requiring that the Service conserve and recover the species.

Our Response: Critical habitat is defined in section 3 of the Act as (i) the specific areas within the geographic 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 geographic 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. We have identified areas within the geographical area occupied by the species at the time of listing that contain features in sufficient quantity and spatial arrangement we have determined to be essential to the conservation of the species and that may require special management considerations or protection. Based on current knowledge, we do not believe that areas beyond those (1) included in this final designation, (2) exempt from critical habitat designation under section 4(a)(3) of the Act (see ``Application of Section 4(a)(3) of the Act'' section below), or (3) excluded from critical habitat designation under section 4(b)(2) of the Act (see ``Exclusions under Section 4(b)(2) of the Act'' section below), are essential for the conservation of the coastal California gnatcatcher. However, 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 recovery 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 recovery.

Comment 7: The County of San Diego commented that based on the observations of local biologists, they believe that coastal sage scrub that burned during the 2003 fires is generally recovering and reiterated that fire is a natural component of sage scrub and chaparral ecosystems. The County further stated that, although the 2003 fires were extensive, they believe that the general distribution of coastal sage scrub and coastal California gnatcatchers will soon return to pre fire conditions. Based upon this, they do not believe that we should adjust proposed revised critical habitat due to the 2003 fires. Another commenter stated that any lands that we proposed for designation before the wildfires should remain as critical habitat in the final rule, regardless of whether such land is presently occupied or unoccupied since these lands are essential to the conservation of the species and require special management considerations or protection. This commenter further stated that the fires have only increased pressure on the survival of the coastal California gnatcatcher, and lands that were previously occupied are likely to be occupied again.

Our Response: We agree that although the 2003 fires were extensive, the general distribution of coastal sage scrub and coastal California gnatcatchers is likely to return to prefire conditions. As discussed below in the ``Primary Constituent Elements'' section of this final rule, fire is a natural component of the southern California landscape and plays an important role in regulating coastal sage scrub distribution, density, and species composition. Our determination of areas containing the PCEs essential for the conservation of the coastal California gnatcatcher takes into account temporal variations in coastal sage scrub habitat resulting from periodic fires, which are a normal component of this dynamic, fireadapted landscape. Based on this, we did not remove areas from this final designation that were included in the April 24, 2003, proposed revised designation that burned in the 2003 fires or the recent 2007 fires.

Comment 8: One commenter objected to the inclusion of large areas of their property (Newhall Land and Farming Company lands) in the Santa Clarita Valley in proposed critical habitat Unit 13. The objection is based on negative coastal California gnatcatcher survey data over multiple years, the loss of habitat due to wildfires in 2003, and judgment of consultants who say that the Service's contention that Unit 13 serves as a linkage between populations in the San Gabriel and Santa Susana Mountains is incorrect.

Our Response: After a reevaluation of lands within Unit 13 included in the April 24, 2003, revised proposed rule, we have determined that portions of the Santa Clarita Valley included in the proposed revised designation are not essential to the conservation of the coastal California gnatcatcher. Numerous surveys have been conducted in the Santa Clarita Valley (including Newhall Land and Farming Company lands) but no breeding pairs have been observed. In August 2007, an individual bird was observed on Newhall Land and Farming Company (Crawford 2007, unpaginated). However, breeding on the site has not been confirmed. While the occurrence of this individual may indicate that the use of this area for dispersal, we have determined that this area does not currently have the spatial configuration and quantity of PCEs essential to the conservation of the species. Therefore, we have removed these areas, including the majority of the lands owned by the Newhall Land and Farming Company, from this final designation (see ``Summary of Changes From the 2003 Proposed Rule To Revise Critical Habitat'' section below for a detailed discussion).

However, we still consider the remaining lands in Unit 13 to be within the geographical area occupied by the coastal California gnatcatcher at the time of listing and, as explained in our response to Comment 7 above, to contain physical and biological features in spatial arrangement and quantity (i.e., PCEs) essential for the conservation of the species, although such features have been temporally affected by the 2003 fire. We believe that habitat burned by the 2003 Simi wildfire will support breeding pairs of coastal California gnatcatchers as the area recovers. The commenter stated that this habitat is likely to burn prior to its recovery, which could potentially change the vegetative community type to weedy species, rendering it unsuitable for coastal California gnatcatcher colonization. This comment is based on speculation and not supported by the fire history of the area (the area had not burned for several years prior to 2003 and supported large areas of habitat suitable for the coastal California gnatcatcher). Also, based on currently available data, none of the areas included in the 2003 proposed revised critical habitat designation that burned in the 2003 fires burned in the 2007 fires. However, the full extent of the 2007 fires is still being assessed. Furthermore, the commenter stated that the likelihood of an area being colonized by coastal California gnatcatchers after it has recovered from a burn is probably dependent on the proximity of founder populations that can disperse to the site rather than the structure of its habitat. Habitat in Unit 13 currently contains populations of coastal California gnatcatchers in areas that did not burn in 2003 or 2007, which given the opportunity and time, should colonize recovered habitat (see ``Primary Constituent Elements'' section below for a detailed discussion).

The area within Unit 13 included in this revised final designation that connects the San Gabriel and Santa Susana Mountains contains the physical and biological features in spatial arrangement and quantity (i.e., PCEs)
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essential for the conservation of the species and serves as an essential linkage between the two isolated populations: a core population in the Moorpark area in Ventura County and the pairs documented in the foothills of the San Gabriel Mountains in Los Angeles County. Without this linkage, the population located in Ventura County has no other natural area connecting them with populations located east and south of Ventura County. Also, without the natural areas and habitat located on the southfacing slopes of the Santa Susana and San Gabriel Mountains, these two populations of coastal California gnatcatchers (in Moorpark area and in foothills of San Gabriel Mountains) would be completely isolated and prone to extirpation. Therefore, as part of Unit 13, we have designated critical habitat along the southfacing slopes of the Santa Susana and San Gabriel Mountains (see ``Critical Habitat Designation'' section below for more details).

Issue 2: Mapping and Methodology

Comment 9: Several commenters suggested that the proposed rule to revise critical habitat is overly broad and contains significantly more acreage than the acreage estimated as habitat in the original listing rule. Other commenters objected to the fact that the mapping scale of the proposed critical habitat includes areas that do not contain the PCEs for the coastal California gnatcatcher.

Our Response: Since the listing of the coastal California gnatcatcher as threatened in 1993 (58 FR 16742), a significant amount of survey information has become available that provides a much more complete dataset delimiting the range of the species within the United States. We used this new survey information in mapping areas containing the PCEs required by the species throughout its range.

We are required to describe critical habitat with specific limits using reference points and lines as found on standard topographic maps of the area (50 CFR 424.12(c)). In the April 24, 2003, proposed revised designation, we delineated critical habitat based on Universal Transverse Mercator (UTM) gridlines set every 328 feet (ft) (100 meters (m)). We overlaid these 100 meter square grids on areas determined to contain the PCEs required by the species. While we removed entire grid squares that did not contain the PCEs for the coastal California gnatcatcher, portions of grid squares that did not contain PCEs were inadvertently included within the boundaries of our proposed revision of critical habitat due to mapping limitations. However, in this final designation, we revised the methodology used to delineate critical habitat unit boundaries (see ``Criteria Used To Identify Critical Habitat'' section below for a detailed discussion). Using this revised methodology allowed us to describe more precisely boundaries associated with areas that we have determined to contain the PCEs and to eliminate additional areas that do not contain the PCEs for the species.

Comment 10: Several commenters suggested that the PCEs defined as being essential for the coastal California gnatcatcher are not specific and appear to encompass most natural plant communities in southern California. Furthermore, the commenters assert that the proposed rule to revise critical habitat does not explain why the PCEs are essential.

Our Response: The PCEs for the coastal California gnatcatcher are based on data from peerreviewed published literature, gray literature (nonpublished or nonpeerreviewed survey or research reports), and biologists knowledgeable about the species and its habitat requirements. The PCEs, as described, represent the specific physical and biological features essential for the conservation of the coastal California gnatcatcher, such as habitat for breeding, foraging, and dispersal. The coastal California gnatcatcher, while considered an obligate (requires a specific habitat type to survive) of sage scrub plant communities, utilizes other plant communities and associations such as chaparral, grassland, and riparian (areas near a source of water) habitats where they occur in proximity to sage scrub. These non sage scrub habitats are used for dispersal and foraging. Though the majority of coastal California gnatcatchers are likely restricted to sage scrub, availability of these nonsage scrub areas is essential during certain times of the year, particularly during drought conditions, for dispersal, foraging, or nesting (see the ``Primary Constituent Elements'' section below for a detail discussion of this species' habitat requirements).

These additional plant communities and associations have become more important to the conservation of the coastal California gnatcatcher with the continued loss of coastal sage scrub habitat due to urban and agricultural development. For this reason, we categorize the PCEs in spatial arrangement and structure and function to capture the plant communities, associations, and corridors of vegetation (i.e., linkages) that are essential for conservation of coastal California gnatcatcher and that provide connectivity between populations. In this final rule, we have clarified and refined the PCEs to enable landowners and managers to more clearly identify habitat containing features essential to the conservation of the species. We have also provided a clearer connection between the PCEs and the basic components of the life history of the coastal California gnatcatcher to show why these elements are essential.

Comment 11: Several commenters stated that the model used to assist in identifying PCEs is flawed and should not have been used.

Our Response: The model is one of many tools used to define the specific areas containing the PCEs for the coastal California gnatcatcher and, therefore, to define the areas proposed as revised critical habitat as explained in the Methods section, we used many other categories of information, including coastal California gnatcatcher presence and absence survey data, vegetation data, land use data, and aerial photography to delineate areas containing features in a spatial arrangement that provides the structure and function essential to the conservation of the species. Most coastal sage scrub patches in Orange and San Diego counties, the Counties covered by the model, have been surveyed for the species at least once. These survey data were the primary information used, in conjunction with aerial photography, in those Counties. We verified the accuracy of the model using survey data, and then we used the model primarily to help identify high quality breeding habitat in Orange and San Diego counties in locations where no survey information was available.

The model used in the proposed rule to revise critical habitat was developed during the planning process for the North San Diego County Multiple Habitat Conservation Plan. Though many potential parameters could be used in a model, we selected four parameters for our model: habitat patch size, slope, temperature, and precipitation. The predictive power of the model beyond the specific geographical area for which it was developed was tested with a large coastal California gnatcatcher data set of abundance information from surveys conducted in 2002 during the breeding season. This data set was collected to provide an estimate of current population levels in Orange and San Diego counties, and it provided a useful and appropriate test of the predictive power of the model. Fortyeight percent of the points located in habitat modeled as veryhigh quality were occupied, 28 [[Page 72015]]
percent of the points located in highquality habitat were occupied, 8 percent of the points in mediumquality habitat were occupied, and none of the points in lowquality habitat were occupied (see ``Criteria Used To Identify Critical Habitat'' section below for more detailed discussion). We used this model to assist us in identifying breeding habitat quality because of the predictive power of the model.

Comment 12: Several commenters identified specific areas that they thought should not be designated as critical habitat. The CDFG requested that CDFGowned conservation lands be removed from critical habitat since these lands are already protected and managed for the coastal California gnatcatcher as well as other listed and sensitive species. They further commented that designating critical habitat on State lands within the CDFG's jurisdiction would provide no added conservation benefit and would be detrimental to State conservation efforts, as critical resources would be diverted from substantive resource protection to procedural regulatory efforts.

Our Response: When commenters provided us sitespecific documentation that explained why an area should not be designated critical habitat, we evaluated that information in accordance with the definition of critical habitat in section 3(5)(A) of the Act and the provisions of section 4(b)(2) of the Act. Following our evaluation of the new information, we made a determination as to whether modifications to the critical habitat boundaries were warranted. In the preparation of this final rule, we reexamined and refined the critical habitat boundaries to remove those areas that do not, or are not likely to, contain the physical and biological features in spatial arrangement and quantity (i.e., PCEs) essential for the conservation of the coastal California gnatcatcher or areas that may have one or more of the PCEs but are no longer essential to the conservation of the species (e.g., area does not contain a core population or provide important linkage habitat). We also exempted and excluded additional areas from this revised final designation under sections 4(a)(3)(B) or 4(b)(2) of the Act. Please refer to the ``Summary of Changes From the 2003 Proposed Rule To Revise Critical Habitat'' section below for a detailed discussion of changes from the revised proposed rule and the ``Application of Section 4(a)(3) of the Act'' and ``Exclusions under Section 4(b)(2) of the Act'' sections for a discussion of our exemption or exclusion of additional lands in this revised final rule.

Regarding the CDFG's request that CDFGowned conservation lands be removed from critical habitat, we excluded from this final designation, under section 4(b)(2) of the Act, three ecological reserves (McGinty Mountain, Otay Mountain and Rancho Jamul) in Unit 1 and five ecological reserves (Pilgrim Creek, Carlsbad Highland, Agua Hedionda Lagoon, Batiquitos Lagoon, and San Elijo Lagoon) in Unit 3 based on management actions that are or will be conducted under the San Diego Multiple Species Conservation Program (MSCP) and the San Diego Multiple Habitat Conservation Plan (MHCP), respectively. While CDFG is not a permittee to these regional HCPs, they have committed to manage their lands consistent with the MSCP and MHCP regional conservation plans (see ``Other Conservation PartnershipsExclusions Under Section 4(b)(2) of the Act'' section below for a detailed discussion). The only CDFG lands included in this final revised designation are approximately 9 ac (4 ha) of the San Luis Rey River Ecological Reserve in Unit 5 (see ``Table 3'' below). Since this 9 ac (4 ha) is not within an area covered by an approved HCP or other management plan and the PCEs may require special management protections or considerations, this area was not excluded from this final designation.

Issue 3: Regulatory Impacts and Exclusions

Comment 13: Several commenters requested that their individual properties be excluded from critical habitat because they have completed a section 7 consultation for the coastal California gnatcatcher.

Our Response: We disagree that all lands addressed by a section 7(a)(2) consultation should be excluded from critical habitat. However, we agree that lands that no longer contain PCEs as a result of a section 7 consultation should be removed from the revised designation. As discussed in the ``Summary of Changes from the 2003 Proposed Rule To Revise Critical Habitat'' section below, we used recent aerial imagery to reevaluate and subsequently remove lands that do not contain the physical and biological features essential to the conservation of the species.

Comment 14: Some commenters stated that the protections provided to the coastal California gnatcatcher by the 4(d) special rule for the species at 50 CFR 17.41(b) are more comprehensive than those provided by critical habitat. Therefore, lands within jurisdictions enrolled in the Natural Community Conservation Planning (NCCP) process and that are subject to a coastal California gnatcatcher habitat loss permit under the 4(d) special rule should be excluded from the final critical habitat designation.

Our Response: The Special Rule under section 4(d) of the Act at 50 CFR 17.41(b) allows for a limited amount of incidental take of coastal California gnatcatchers (associated with the loss of up to five percent of sage scrub, i.e., coastal California gnatcatcher habitat) for an interim period of time while enrolled jurisdictions are actively engaged in preparing an NCCP plan, provided the activities resulting in such take are conducted in accordance with the NCCP Conservation and Process Guidelines finalized by the California Department of Fish and Game (CDFG) updated in January 1998. These guidelines rely on the voluntary commitment of jurisdictions to engage in the subregional conservation planning process and complete a Habitat Conservation Plan (HCP) or NCCP. While we trust that jurisdictions will fulfill their commitment to complete conservation plans, this voluntary enrollment does not assure that such plans will be completed. As such, the 4(d) special rule protections for coastal California gnatcatcher habitat provided through a participating jurisdiction's enrollment in the NCCP process are temporary and are not assured; such protections are lost if the enrolled jurisdiction elects to withdraw from the NCCP program. Given the temporary nature of the habitat protections afforded by the special 4(d) rule for the coastal California gnatcatcher, lands containing PCEs essential for the conservation of this species that are covered by the 4(d) rule do not warrant exclusion from critical habitat.

Comment 15: Naval Weapons Station Seal Beach, Detachment Fallbrook (Detachment Fallbrook), Marine Corps Base Camp Pendleton (MCB Camp Pendleton), and Marine Corps Air Station Miramar (MCAS Miramar) suggested that they should be exempt or excluded from critical habitat under sections 3(5)(A), 4(b)(2), or 4(a)(3)(B) of the Act based on their approved Integrated Natural Resource Management Plans (INRMPs) and adverse effects to military training and readiness.

Our Response: We have reexamined the inclusion of lands on these three military installations in light of the National Defense Authorization Act for Fiscal Year 2004 (Pub. L. 108136), which amended the Act. Specifically,
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section 4(a)(3)(B) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) states that the Secretary shall not designate as critical habitat any lands or other geographical areas owned or controlled by the Department of Defense, or designated for its use, that are subject to an INRMP prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the Secretary determines in writing that such plan provides a benefit to the species for which critical habitat is proposed for designation. Following a review of the INRMPs prepared for each of these three installations, we have determined that the approved INRMPs for each provides a benefit the coastal California gnatcatcher, its habitat, and its PCEs on the subject lands, and we have exempted these lands from this final designation under section 4(a)(3)(B) of the Act (see ``Application of Section 4(a)(3) of the Act'' below for a detailed discussion).

Comment 16: The Pala Band of Mission Indians and the Rincon Band of Luise[ntilde]o Indians (on behalf of the Capitan Grande Reservation) expressed support for and concurred with the exclusion of those Tribal lands from critical habitat designation, stating that failure to designate these lands as critical habitat will not result in the extinction of the coastal California gnatcatcher. The Bureau of Indian Affairs opposed the inclusion of Capitan Grande and Pala Tribal lands in the designation of critical habitat for the coastal California gnatcatcher. They note that Tribal lands have not been subjected to the same development philosophies and pressures that have occurred on non Indian lands and that Tribal conservation practices and Tribal resource management programs should be rewarded when we are considering designation of critical habitat.

Our Response: As stated in the revised proposed rule, physical and biological features essential to the conservation of the coastal California gnatcatcher exist on Pala Reservation lands. We considered but did not propose lands on the Pala Reservation in the April 24, 2003, proposed rule and we affirm our exclusion of these areas in this final rule (see ``Exclusion of Pala Band of Mission Indians Tribal Lands Under Section 4(b)(2) of the ActAmerican Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act'' section below for a detailed discussion). We do not consider the physical and biological features on lands within the Capitan Grande Reservation to be essential to the conservation of the coastal California gnatcatcher. Therefore, the lands containing these features were not included in the April 24, 2003, revised proposed rule and are not included in this final designation of critical habitat for the coastal California gnatcatcher.

Comment 17: One commenter stated that our analysis under section 4(b)(2) of the Act for excluding lands from the Pala Band of Mission Indians Reservation from proposed critical habitat for the coastal California gnatcatcher on the basis of our efforts to preserve partnerships should also extend to private landowners.

Our Response: As discussed in the ``Exclusion of Pala Band of Mission Indians Tribal Lands Under Section 4(b)(2) of the ActAmerican Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act'' section below, we are working with the Pala Band of Mission Indians and other Tribes under Secretarial Order 3206, ``American Indian Tribal Rights, FederalTribal Trust Responsibilities, and the Endangered Species Act'' (June 5, 1997); the President's memorandum of April 29, 1994, ``GovernmenttoGovernment Relations with Native American Tribal Governments'' (59 FR 22951); Executive Order 13175; and the relevant provision of the Departmental Manual of the Department of the Interior (512 DM 2) to preserve our partnership. We readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, make information regarding federally listed species available to Tribes, and remain sensitive to Indian sovereignty and culture. We further acknowledge that special considerations flow from our governmenttogovernment relationship with Indian Tribes, the U.S. trust responsibility for Tribal natural resources it holds in trust, and the fact that Tribal lands are not subject to the same controls as Federal public lands. The special considerations inherent in our trust responsibilities to Indian tribes do not apply to private landowners. However, we are continuing to work to develop positive partnerships with private landowners that result in benefits to the coastal California gnatcatcher, through conservation tools such as HCPs and Safe Harbor Agreements. We recognize that private landowners play a significant role in helping to recover listed species, including the coastal California gnatcatcher, and therefore we continue to seek opportunities to work cooperatively with landowners to conserve the coastal California gnatcatcher and its habitat.

Comment 18: Several commenters, including the CDFG, were supportive of our proposal that lands covered by approved HCPs that provide take authorization for the coastal California gnatcatcher be excluded from critical habitat because they do not meet the definition of critical habitat or because the benefits of exclusion outweigh the benefits of designating such lands as critical habitat. These commenters stated that exclusion of lands covered by approved HCPs benefits partnerships, benefits future planning, prevents additional regulation, avoids legal challenges that HCPs will result in ``adverse modification'' of critical habitat, and supports implementation agreements. They also stated that without the exclusion of HCPs from critical habitat, ongoing and future HCP planning efforts would be jeopardized. Several commenters stated that HCPs protect habitat on a larger scale, rather than a piecemeal ``projectbyproject'' approach that is achieved through the section 7 consultation process. Commenters further stated that HCPs provide a much greater conservation benefit than critical habitat designation to private land areas because HCPs incorporate management measures and protections for conservation lands designed to preserve, restore, and enhance the lands' value as habitat for covered species.

Our Response: We recognize that critical habitat is one of many tools available to help conserve federally listed species and agree that approved HCPs are one of the most important tools for reconciling land use with the conservation of listed species on nonFederal lands. Section 4(b)(2) of the Act allows us to exclude from critical habitat areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. We believe that in most instances the benefits of excluding lands covered by approved HCPs from critical habitat designations will outweigh the benefits of including them. For this final designation, we have determined that the benefits of exclusion outweigh the benefits of designation for all approved and legally operative HCPs in which coastal California gnatcatcher is a covered species (see ``Exclusions Under Section 4(b)(2) of the Act'' section below for a detailed discussion).

Comment 19: Several commenters, including the CDFG, stated that the benefits of excluding specific lands under section 4(b)(2) of the Act include the development of much needed housing, increased local government funding, decreased litigation burdens, production of new jobs, creation of additional habitat preserves, greater participation in HCPs, and/or promotion of smart growth.

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Our Response: As discussed in the ``Effects of Critical Habitat'' section of this rule, section 4(b)(2) of the Act and 50 CFR 424.19 require us to consider the economic impact, impact on national security, and any other relevant impact, of designating any particular area as critical habitat. We may exclude an area from critical habitat if we determine that the benefits of exclusion outweigh the benefits of designating the specific areas as critical habitat, unless that exclusion will lead to extinction of the species. We have considered and analyzed the benefits of exclusion described under section 4(b)(2) of the Act and we discuss them in this final rule (see ``Exclusions Under Section 4(b)(2) of the Act'' section below for a detailed discussion).

Comment 20: Several commenters requested that exclusions of HCPs under section 4(b)(2) of the Act should also apply to pending HCPs and lands enrolled in the NCCP program because the designation may have a chilling effect on entities pursuing HCP approval and diminish the assurances that are one of the key reasons entities participate in HCPs. Commenters further stated that the net result of designating lands as critical habitat within jurisdictions currently working to develop an HCP/NCCP will result in a diversion of scarce resources to address the uncertainties, probable litigation, and additional section 7 consultations that would be created by such designation and that these diversions of resources amount to a ``relevant impact'' under section 4(b)(2) and that the Service should not designate lands within pending HCPs for this reason alone.

Our Response: Protections for coastal California gnatcatcher habitat provided through a participating jurisdiction's enrollment in the NCCP process is temporary, is not legally assured, and would be lost if the jurisdiction elects to withdraw from the NCCP program. In addition, because HCPs/NCCPs under development that propose to cover the coastal California gnatcatcher are not finalized, the Service has not determined whether they are adequate to support the issuance of incidental take permits under section 10 of the Act or the Special Rule for the coastal California gnatcatcher under section 4(d) of the Act at 50 CFR 17.41(b). Also, the conservation measures proposed or under consideration in such plans have not been assured through binding permit conditions. However, we may consider excluding under section 4(b)(2) of the Act habitat covered by a pending HCP if we determine that an applicant has demonstrated a sustained commitment to develop the HCP to comply with section 10(a)(1)(B) of the Act, the California Endangered Species Act, and the State's NCCP program. In the past, we have excluded habitat covered by pending HCPs that have undergone public review as a result of the National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.) review process. Currently, there are no pending HCPs that have undergone public review as a result of the NEPA review process. Therefore, we are not excluding any pending HCPs from this final revised critical habitat designation.

Comment 21: Several commenters, including the CDFG, suggested that designated critical habitat be removed concurrently with approval of future HCPs. Commenters recommended the establishment of a set of standards for HCPs/NCCPs that would provide for their automatic removal from critical habitat designated for species covered under such plans upon the issuance of the permit, if these standards are met.

Our Response: Revisions to critical habitat are governed by section 4 of the Act and require publication of a proposed rule and an opportunity for public comment on the proposed revision prior to removing lands from critical habitat designation. Future revisions to critical habitat based on the approval of HCPs must follow this statutory process. We anticipate that some future HCPs will include the coastal California gnatcatcher as a covered species and provide for its longterm 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 longterm conservation of the species.

Section 10(a)(1)(B) of the Act states that HCPs must meet issuance criteria, including minimizing and mitigating any take of the listed species covered by the permit to the maximum extent practicable, and that the taking must not appreciably reduce the likelihood of the survival and recovery of the species in the wild. We fully expect that our future analyses under section 7 of the Act of HCPs and section 10(a)(1)(B) permits will show that covered activities carried out in accordance with the provisions of the HCPs and section 10(a)(1)(B) permits will not result in the destruction or adverse modification of critical habitat designated for the coastal California gnatcatcher. The take minimization and mitigation measures provided under these HCPs are expected to adequately protect the lands designated as critical habitat in this rule, such that the value of these lands for the survival and recovery of the coastal California gnatcatcher is not appreciably diminished through direct or indirect alterations. If an HCP that addresses the coastal California gnatcatcher as a covered species is ultimately approved, we may elect to revise the critical habitat boundaries through a subsequent rulemaking if available funding and program priorities allow us to do so.

Comment 22: Several commenters stated that the critical habitat rule should not distinguish between individual and regional HCPs.

Our Response: Our evaluation of the benefits provided to listed species and their habitat by HCPs under section 4(b)(2) of the Act is the same regardless of HCP scale (e.g., regional or individual). We distinguished between the two types of HCPs solely to organize our discussion of areas considered but not proposed as critical habitat under section 4(b)(2) of the Act by grouping HCPs of a similar scale. We have continued this grouping of HCPs of similar scale in this final rule (see ``Exclusions Under Section 4(b)(2) of the Act'' section below).

Comment 23: One commenter stated that the establishment of HCPs in no way removes the attendant lands from the scope of section 4(a)(3) of the Act, which requires the designation of critical habitat, and states that the Service is legally required to designate critical habitat irrespective of other agencies' management considerations. Therefore, the approval of incidental take permits for completed regional HCPs, including the Southern Orange County Subregion HCP and Western Riverside County MSHCP, and pending HCPs, including the City of Rancho Palos Verdes, should not reduce the Service's proposed designation of critical habitat for the coastal California gnatcatcher.

Our Response: As discussed in our response to comment 20, we are not excluding any pending HCPs from this critical habitat designation. We are, however, excluding lands covered by the Southern Orange County Subregion HCP and Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP) under section 4(b)(2) of the Act. Section 4(b)(2) of the Act allows us to exclude from critical habitat designation areas where the benefits of exclusion outweigh the benefits of designation, provided the exclusion will not result in the extinction of the species. We believe that in most instances the benefits of excluding essential areas within approved HCPs from critical habitat designations will outweigh the benefits of including them. For this designation, we find that the
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benefits of exclusion outweigh the benefits of designation for all approved and legally operative HCPs in which coastal California gnatcatcher is a covered species (see ``Exclusions Under Section 4(b)(2) of the Act'' section below for a detailed discussion).

Regional Habitat Conservation Plans (HCPs) have been the primary tool for recovering the coastal California gnatcatcher in southern California since the early 1990s. Development of regional HCPs in southern California has enabled the Service to conduct detailed evaluations of habitat for numerous species, including the gnatcatcher, in the context of developing a system of interconnected reserves to provide for the longterm biological needs of the species. This has been a challenging and complex undertaking, in large part due to the mix of Federal and nonFederal landownership patterns throughout the listed species' range. Completion and implementation of these HCPs will provide for the long term recovery and conservation of the coastal California gnatcatcher due to a significant reduction in and management of threats facing the species.

Most of the core populations of the coastal California gnatcatcher are concentrated along the coastal portions of Los Angeles, Orange, and San Diego counties. The eastern boundary of the species' range includes portions of southwestern San Bernardino County, and western Riverside County. Conservation and management of core populations of the coastal California gnatcatcher are addressed in the Orange County Central and Coastal NCCP/HCP, the City and County of San Diego's Multiple Species Conservation Program (MSCP) (including the cities of Poway, La Mesa, and Chula Vista), the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP), and the City of Carlsbad within the multi city Multiple Habitat Conservation Program (MHCP). Other HCPs are under development or have recently been completed, such as the Southern Orange County Subregion NCCP/HCP and the Rancho Palos Verdes HCP. Similar management of core gnatcatcher populations in northern San Diego County are being addressed through the proposed North County MSCP.

On Federal lands and other portions of the species' range in southern California, major core populations of the species have been conserved through section 7 consultations or are located on lands controlled by the Department of Defense and managed through their Integrated Natural Resource Management Plans (INRMP).

The combined efforts of regional HCPs, INRMPs, and key consultations under section 7 of the Act have made significant progress in managing the threats to the coastal California gnatcatcher and collectively will provide for the species' long term conservation. We conclude that completion and implementation of these HCPs/NCCPs is usually a more effective conservation approach than is a designation of critical habitat on these lands. Such a designation would provide redundant regulatory oversight and in some cases could hinder effective implementation of the respective HCPs/NCCPs. Thus we believe it is an appropriate use of the Secretary's authority to exclude such areas from critical habitat under section 4(b)(2) of the Act.

Comment 24: Several commenters stated opposition to the exclusion of pending and approved HCPs from critical habitat for the coastal California gnatcatcher, stating that we have relied on an erroneous interpretation of the phrase ``special management considerations'' in section 3(5)(A) of the Act.

Our Response: In this final rule, we are no longer relying on section 3(5)(A) of the Act as a basis to not include lands in the designation. We have reevaluated and reaffirmed our exclusion of areas considered but not proposed as critical habitat in the April 24, 2003, proposed rule under section 4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section below for a detailed discussion).

Comment 25: USFS commented that like HCPs, Land Management Plans (LMP) are designed to ensure the longterm survival of covered species in the plan area and their recently revised LMPs for the Cleveland, Angeles, and San Bernardino National Forests incorporate management direction they believe provides sufficient protection and management for coastal California gnatcatchers and their habitat. USFS further commented that the Cleveland National Forest's LMP includes management direction specifically designed to protect, restore, and enhance the value of Forest Lands as habitat for listed species. Standards 11 and 12 (part 3, page 6 of the LMP) stipulate that, ``When occupied or suitable habitat for a threatened, endangered, proposed, candidate or sensitive species is present on a project site, consider species guidance documents to develop project specific design criteria.'' These standards also stipulate, ``when implementing new projects in areas that provide for threatened, endangered, proposed or candidate species, use design criteria so that discretionary uses and facilities promote the conservation and recovery of these species and their habitats.''

Our Response: We have determined that Forest Service lands meet the definition of critical habitat and are essential to the conservation of coastal California gnatcatcher (see ``Criteria Used to Identify Critical Habitat'' section below). We acknowledge that the LMP will benefit coastal California gnatcatcher and its habitat. The LMP contains general provisions for species conservation and suggests specific management and conservation actions that will benefit this species and its PCEs. Implementation of the LMP should address known threats to this species on Forest Service lands. As stated above, we appreciate and commend the efforts of USFS to conserve federally listed species on their lands. However, Federal agencies have an independent responsibility under section 7(a)(1) of the Act to use their programs in furtherance of the Act and to utilize their authorities to carry out programs for the conservation of endangered and threatened species. USFS'' development and implementation of the LMP is consistent with the agency's statutory obligation under section 7(a)(1) of the Act, and is not an appropriate basis for excluding essential coastal California gnatcatcher habitat on Forest Service lands from critical habitat designation.

The Secretary may exclude an area from critical habitat under section 4(b)(2) of the Act after taking into consideration the economic impact, the impact on national security and any other relevant impact if he determines that the benefits of such exclusion outweigh

FOR FURTHER INFORMATION CONTACT Field Supervisor, Carlsbad Fish and Wildlife Office, at the above address (telephone: 760/4319440; facsimile 760/4315901). For information about Ventura and northwestern Los Angeles Counties, contact Field Supervisor, Ventura Fish and Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone: 805/6441766; facsimile 805/644 3958). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 8008778339.