Federal Register: November 3, 2009 (Volume 74, Number 211)
DOCID: fr03no09-15 FR Doc E9-26221
DEPARTMENT OF THE INTERIOR
Veterans Affairs Department
CFR Citation: 50 CFR Part 17
FWS ID: [FWS-R8-ES-2008-0078]
NOTICE: Part III
DOCID: fr03no09-15
DOCUMENT ACTION: Final rule.
SUBJECT CATEGORY:
99210-1117-0000-B4 [RIN 1018-AV03]
DATES: This rule becomes effective on December 3, 2009.
DOCUMENT SUMMARY:
We, the U.S. Fish and Wildlife Service (Service), are designating final revised critical habitat for Cirsium loncholepis (La Graciosa thistle). We are designating approximately 24,103 acres (ac) (9,754 hectares (ha)) of habitat in San Luis Obispo and Santa Barbara Counties, California, as critical habitat for C. loncholepis. This final revised designation constitutes a reduction of approximately 16,986 ac (6,873 ha) from the 2004 designation of critical habitat for C. loncholepis.
SUMMARY:
Interior Department, Fish and Wildlife Service
DOCUMENT BODY 2:
Endangered and Threatened Wildlife and Plants; Revised
Designation of Critical Habitat for Cirsium loncholepis (La Graciosa
Thistle)
SUPPLEMENTAL INFORMATION
Background
It is our intent to discuss only those topics directly relevant to
the revised designation of critical habitat for Cirsium loncholepis in
this final rule. For more information on the taxonomy, biology, and
ecology of C. loncholepis, refer to the final listing rule published in
the Federal Register (FR) on March 20, 2000 (65 FR 14888), the final
designation of critical habitat for C. loncholepis published on March
17, 2004 (69 FR 12553), the proposed revised designation of critical
habitat published in the Federal Register on August 6, 2008 (73 FR
45806), and the March 10, 2009, availability of the draft economic analysis (DEA) (74 FR 10211).
Species Description, Life History, Distribution, Ecology, and Habitat
We did not receive any new substantial information pertaining to the description, life history, distribution, ecology, or habitat of Cirsium loncholepis following the 2008 proposed revised designation of critical habitat for this species. Therefore, please refer to the final listing rule published in the Federal Register on March 20, 2000 (65 FR 14888), and the proposed revised designation of critical habitat published on August 6, 2008 (73 FR 45806), for a discussion of the species' description, life history, distribution, ecology, and habitat. Previous Federal Actions
On March 17, 2004, we designated critical habitat for Cirsium loncholepis on approximately 41,089 acres (ac) (16,628 hectares (ha)) of land in San Luis Obispo and Santa Barbara Counties, California (69 FR 12553). In March 2005, the Homebuilders Association of Northern California, et al., filed suit against the Service (CV013630LKKJFM) challenging final critical habitat rules for several species, including C. loncholepis. In March 2006, a settlement was reached that requires the Service to reevaluate five final critical habitat designations, including critical habitat designated for C. loncholepis. The settlement, as subsequently modified on May 18, 2007, stipulated that we would submit any proposed revisions to the C. loncholepis designation to the Federal Register for publication on or before July 27, 2008, and a final determination by July 27, 2009. By stipulation and order entered May 8, 2009, the deadline for submission of revisions to the final critical habitat designation was extended to on or before October 27, 2009. We published the proposed revisions to the critical habitat designation for C. loncholepis in the Federal Register on August 6, 2008 (73 FR 45806), and accepted public comments on the proposed revisions until October 6, 2008.
On March 10, 2009, we published in the Federal Register a notice of availability (NOA) of the DEA (dated January 16, 2009), and opened the second public comment period on the proposed designation of revised critical habitat (74 FR 10211). This final rule completes our obligations under the March 23, 2006, settlement agreement regarding Cirsium loncholepis. For a discussion of additional information on previous Federal actions concerning C. loncholepis, refer to the final listing rule published on March 20, 2000 (65 FR 14888), and the final designation of critical habitat published on March 17, 2004 (69 FR 12553).
Summary of Comments and Recommendations
We requested written comments from the public on the proposed revised designation of critical habitat for Cirsium loncholepis during two comment periods. The first comment period opened August 6, 2008 (73 FR 45806), associated with the publication of the proposed rule, and closed October 6, 2008. The second comment period opened March 10, 2009 (74 FR 10211), associated with the availability of the DEA, and closed April 9, 2009. During these two public comment periods, we contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule to revise critical habitat for this species and the associated DEA.
During the first public comment period, we received 16 comments directly addressing the proposed revision of critical habitat. We received one request for a public hearing, which was subsequently retracted. During the second public comment period, we received 16 comments directly addressing the proposed revision of critical habitat for this species or the DEA.
Peer Review
In accordance with our policy on peer review for activities under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which it occurs, and conservation biology principles pertinent to the species. We received responses from five of the peer reviewers. The peer reviewers generally concurred with our methods and conclusions and indicated that the Service did a thorough job of delineating critical habitat using the best available scientific information.
[[Page 56979]]
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding the
designation of critical habitat for Cirsium loncholepis. All public
comments are addressed in the following summary and incorporated into the final rule as appropriate.
Peer Reviewer Comments
Comment 1: One peer reviewer noted that several areas beyond those
proposed for designation as critical habitat contain habitat and
features important for recovery of Cirsium loncholepis. Specifically,
Guadalupe Lake was (and sometimes still is) the largest seasonal lake
on the floor of the Santa Maria Valley, that it still persists today,
and that it is likely that C. loncholepis was associated with this
feature and its surrounding wetlands, as well as swales on the Orcutt
Terrace. The commenter added that restoration of Guadalupe Lake
(hydrology and vegetation) should be a primary focus of conservation
efforts for C. loncholepis in this portion of the Santa Maria Valley
and Orcutt Creek and that Unit 2 should be expanded to include
Guadalupe Lake. Three additional areas that the peer reviewer
recommended for inclusion in the critical habitat designation are: (1)
The Mussel Rock dune sheet that contains dune swale wetlands; (2) the
coastal mesa of Burton Mesa (south of San Antonio Creek), which has
suitable Cirsium habitat and would provide connectivity between San
Antonio Terrace and the Santa Ynez River; and (3) the interior portions
of the Orcutt Terrace Dune Sheet that contain vernal pools and vernal
pool complexes and support other listed ``wetland'' species
(specifically the federally endangered California tiger salamander
(Ambystoma californiense)). The interior portions of the Orcutt Terrace
Dune Sheet contain areas such as Guadalupe Lake, Green Canyon,
``Bradley Lake,'' and ``West Bradley Lake'' and would provide an
excellent patchwork of open space areas for dispersal of C. loncholepis seed and connectivity via wind and hydrological processes.
Our Response: We determined that these four areas (Guadalupe Lake,
the remaining portions of the Mussel Rock Dune Sheet, Burton Mesa
(south of San Antonio Creek), and interior portions of the Orcutt
Terrace Dune Sheet) are important for recovery but not essential for
the conservation of Cirsium loncholepis. We acknowledge that these
areas do contain suitable habitat and the primary constituent elements
(PCEs) for the species, but not in the quantity, quality, and spatial
arrangement to make them essential for the conservation of the species.
As opportunities arise, we will work with local landowners to advance
the recovery of C. loncholepis in these areas by increasing
connectivity via suitable habitat patches for C. loncholepis and seed
dispersal. We are designating as critical habitat areas along Orcutt
Creek that contain the highest quality areas of suitable habitat that
will serve as ``stepping stone'' habitats for C. loncholepis between
the Guadalupe Dunes and Santa Maria River areas, and between the
formerly occupied San Antonio Creek and Santa Ynez River areas.
Comment 2: All of the peer reviewers commented that the proposed
designation of critical habitat uses the best available scientific
information to develop the best possible habitat design to prevent
extinction of the species and indicated that it was an exhaustive
presentation of the facts supporting revisions to critical habitat for
Cirsium loncholepis. They concurred that the current range of C.
loncholepis is not sufficient to ensure (or even make likely) the
continued existence of the species and that the inclusion of unoccupied
habitat in the proposed critical habitat designation was justified
scientifically. They concurred that all proposed units are important
for recovery: Units 1 and 2 are occupied; Unit 3 was occupied, has
important recovery potential, and serves as an extremely important area
to connect multiple populations to reduce extinction risk for the
species; and Units 4, 5, and 6 complete these linkages and have high recovery potential for the species.
Our Response: The peer reviewers confirmed the importance of the
areas that we identified as containing features essential to the
conservation of the species and consequently delineated as critical
habitat. Additionally, we added details and supplemental information
about Cirsium loncholepis, and special management needs provided by the
peer reviewers, in the Special Management Considerations or Protection,
Primary Constituent Elements, and Final Critical Habitat Designation sections of this rule.
Comment 3: Several peer reviewers had comments and provided
additional information regarding (1) the importance of longdistance
dispersal for this species in relation to habitat fragmentation, (2)
the layout of critical habitat boundaries, (3) the PCEs, and (4) the
importance of conserving the longdistance dispersal vectors within and
between the critical habitat units (and suitable habitat patches) for
the conservation of the species. There was a consensus among the peer
reviewers that habitat fragmentation increases the threats to a
species, and that it increases the risk of extirpation and extinction
events. They discussed that the best way to conserve species affected
by habitat fragmentation is to increase the total size of available
habitat or connect remaining available habitat with habitat linkages.
They further discussed that reconnections (of available and suitable
habitat) can ameliorate the threats associated with small population sizes by promoting dispersal and geneflow.
Our Response: We appreciate the peer reviewers' comments and
information regarding longdistance dispersal and Cirsium loncholepis,
and we have considered the peer reviewers' comments and recommendations
regarding habitat fragmentation, connectivity, and longdistance
dispersal in the development of this final revised critical habitat
designation. We have incorporated them into the rule under the section entitled Primary Constituent Elements.
Comment 4: One peer reviewer mentioned that the County of Santa
Barbara requires a minimum 100foot riparian buffer along creeks in
rural areas, which includes agriculture, and that pulling back
agriculture to create this minimum buffer could make conditions
favorable for Cirsium loncholepis along riparian areas in the critical habitat units designated in Santa Barbara County.
Our Response: We thank the reviewer for this information. We
checked with the County of Santa Barbara (Mashore 2009a, unpaginated,
2009b, unpaginated; Mooney 2009, unpaginated) and were informed that
the County's Coastal Land Use Plan (Policy 937; also crossreferenced
in Sec. 3597.19 of the County's Coastal Ordinance) pertains to review
of documents under the California Environmental Quality Act and states:
The minimum buffer strip for streams in rural areas shall be
presumptively 100 feet, and for streams in urban areas, 50 feet. These
minimum buffers may be adjusted upward or downward on a casebycase
basis. The buffer shall be established based on an investigation of the
following factors and after consultation with the California Department
of Fish and Game and California Regional Water Quality Control Board in
order to protect the biological productivity and water quality of
streams: a.) soil type and stability of stream corridors, b.) how
surface water filters into the ground, c.) slope of land on either side of the stream, and d.) location of the 100year
[[Page 56980]]
flood plain boundary. Riparian vegetation shall be protected and shall
be included in the buffer. Where riparian vegetation has previously
been removed, except for channelization, the buffer shall allow for the
reestablishment of riparian vegetation to its prior extent to the greatest degree possible.
We concur that pulling back the footprint of areas utilized for
agricultural production to create this minimum buffer could make
conditions favorable for Cirsium loncholepis along riparian areas in
Santa Barbara County. We will continue to work closely with the County
of Santa Barbara and landowners in these areas to provide for the conservation of C. loncholepis.
Comment 5: One peer reviewer mentioned that there may be areas of
active row crop agriculture within the boundaries of proposed critical
habitat in Unit 3 and that we should check to avoid their inclusion in critical habitat.
Our Response: We acknowledge that there may be areas with active
row crops in Unit 3 (and other critical habitat units). When
determining the revisions to critical habitat boundaries within this
final rule, we made every effort to avoid including developed areas,
such as buildings, paved areas, and other structures, as well as tilled
fields and row crops that lack the PCEs for Cirsium loncholepis in the
appropriate quantity and spatial arrangement essential to the
conservation of the species. We identified critical habitat for this
species based on several criteria. Application of these criteria
(please see the Criteria Used To Identify Critical Habitat section of
this final rule) resulted in the determination of the physical and
biological features that are essential to the conservation of this
species, as identified by the PCEs in the appropriate quantity and
spatial arrangement essential to the conservation of the species. Thus,
not all areas supporting the identified PCEs will meet the definition
of critical habitat. Any such lands inadvertently left inside critical
habitat boundaries shown on the maps of this final critical habitat are
excluded by text in this rule and are not designated as critical
habitat (please see Criteria Used To Identify Critical Habitat and
Final Critical Habitat Designation sections and the unit description and map for Unit 3 in this final rule).
Comment 6: One peer reviewer commented regarding the occupancy
status of the Cañada de las Flores Unit. The commenter noted
that we considered it to be unoccupied in the proposed revised
designation, that the species was last observed in this unit in 1989,
that the surveys in 1990 were conducted during a drought year, that the
surveys in 2007 were conducted at a bad time of year, and that no
sufficient surveys have been conducted here for 17 years. The commenter
reasoned that because of the above information and the lack of surveys
over a 17year span, it seemed contradictory to consider this unit unoccupied.
Our Response: Although the last herbarium specimen of this
population was collected in 1973 (Consortium of California Herbaria
(CCH) 2008, unpaginated), and it was last recorded (by photograph) in
1987 (Thornton 2008, unpaginated), Hendrickson (1990, pp. 125) notes
that in 1990, Jeanette Sainz reported that at CaCañadantilde;ada
de las Flores Cirsium loncholepis plants ``...fluctuate every year;
however, she has never known them to be absent completely as we found
this year.'' Based on this information, we concluded that at the time
of listing in 2000, Unit 3, Ca[ntilde]ada de las Flores was occupied by
C. loncholepis. We reached the same conclusion when we designated
critical habitat in 2004. We revisited this population with Jeanette
Sainz in November 2007. No C. loncholepis plants were observed, some
habitat conditions at the site have declined due to grazing intensity,
but the basic suitable habitat conditions are still present (e.g.,
freshwater seeps and native vegetation) (Elvin 2007a, unpaginated).
Based on one peer reviewer comment and a public comment regarding the
occupancy status of Ca[ntilde]ada de las Flores, we requested
permission to visit the site in 2008 during the blooming season for
this species to try to obtain more data regarding the occupancy status
of this site; however, we were not able to obtain permission from the
current owner. The owner had biologists conduct surveys in March of
2009, with no C. loncholepis being observed (Kisner 2009, unpaginated).
Therefore, the best scientific and commercial data available indicate
that this site was last documented as occupied in 1987 (Thornton 2008,
unpaginated) and last reported in 1989 (Hendrickson 1990, pp. 125).
Therefore, based on the continued lack of observation of C. loncholepis
since 1989 (Hendrickson 1990, pp. 125; 65 FR 14888, March 20, 2000;
CNDDB 2007, unpaginated; Elvin 2007b, unpaginated; CCH 2008,
unpaginated; Thornton 2008, unpaginated), we consider Ca[ntilde]ada de las Flores to be unoccupied for the purposes of this rule.
Comment 7: One peer reviewer strongly suggested that additional
management actions be undertaken for the species, specifically that the
species be reintroduced into the unoccupied Units 3, 4, 5, and 6.
Our Response: We agree that the recommended additional management
actions, specifically reintroducing the species into unoccupied areas
with suitable habitat throughout the range of the species, would
benefit the species and contribute to its conservation. While we do not
develop management strategies as part of the process of designating
critical habitat, we do consider sitespecific management strategies
important to the conservation of the species and work with landowners,
researchers, and others to develop and implement them as part of the recovery process.
Comment 8: One peer reviewer commented that historically it is
likely that Cirsium loncholepis had a much broader distribution in (1)
Los Alamos Valley, specifically along the broad floodplain of San
Antonio Creek and in the numerous hillside seeps and sag ponds
associated with the southeastnorthwest trending fault line that
created this valley, and (2) the rest of the San Antonio Creek
floodplain (e.g., Barka Slough); therefore the reviewer suggested that we emphasize conservation efforts in these areas.
Our Response: We concur that it is possible that Cirsium
loncholepis was more widely distributed in the San Antonio Creek
watershed. This is why we proposed the areas in Units 3 and 4 and why
we are designating lands in these units as critical habitat for C.
loncholepis. Please see the unit descriptions for Units 3 and 4 for a more indepth discussion of these areas.
Public Comments
Comment 9: One commenter stated that we should not designate critical habitat for a weed.
Our Response: Cirsium loncholepis is a rare and endangered native
plant. It does not qualify under any criteria as a weed. There are some
species within this thistle genus that are ``weedy'' in the sense of
growing out of their native habitat; for instance, several species of
thistle originally native to Europe have spread across North America.
Other thistle species are native but ``weedy'' in the sense that they
have the ability to spread aggressively. Cirsium loncholepis is not
``weedy'' in either sense, as it is native to a small area of central
coastal California, and is not aggressive in colonizing new sites. It is federally listed as endangered, and we are
[[Page 56981]]
required under the Act to designate critical habitat for it.
Comment 10: One commenter stated that the designation is based on incomplete data and should not go forward.
Our Response: The Service's Policy on Information Standards Under
the Endangered Species Act, published on July 1, 1994 (59 FR 34271),
establishes procedures and provides guidance to ensure that decisions
made by the Service represent the best scientific and commercial data
available. We are required, 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. See the section of this
rule titled Critical Habitat for additional information on these
standards. The revised critical habitat designation presented in this
rule is based upon the best scientific and commercial information available as required by the Act.
Comment 11: One commenter stated that the rule does not justify
designating active cropland in the Santa Maria Valley or urban lands in
the Orcutt area, that it is illogical to designate critical habitat on
intensely cultivated row crop farms in the western Santa Maria Valley,
and that agricultural fields in the Santa Maria Valley do not meet the definition of critical habitat because they lack the PCEs.
Our Response: We attempted to avoid designating agricultural land
as much as possible because the PCEs are not present in the appropriate
quantity and spatial arrangement essential to the conservation of the
species in much of the actively farmed agricultural land. However,
within the areas mapped that include agricultural fields, there are
pockets of habitat that contain or support the PCEs and are essential
to the conservation of the species (e.g., along the untilled margins of
fields; along untilled, lowlying swales within fields; and in fields
that are temporarily fallow). For example, there are pockets of
suitable habitat along Orcutt Creek that contain ``stepping stone''
habitats in and adjacent to agricultural lands. These ``stepping
stone'' habitats play an important role in the conservation of this
species by providing corridors and intermediate sites with suitable
habitats that act as an essential dispersal corridor (along which the
species can disperse from coastal sites to other suitable sites farther
inland) (Damschen 2008; Trakhtenbrot 2008). Therefore, these areas are
essential to the conservation of the species. Some areas within
agricultural lands are not essential because they do not contain the
PCEs in the appropriate quantity and spatial arrangement essential to
the conservation of the species. We made every effort to exclude as
many areas as possible that do not meet the definition of critical
habitat, but were not able to exclude all of these areas due to the
mapping scale utilized. Areas that are within the boundaries of
critical habitat, but do not contain the PCEs in the appropriate
quantity and spatial arrangement essential to the conservation of the
species, are excluded by text in this revision and are not designated
as critical habitat (please see the Criteria Used To Identify Critical
Habitat and Final Critical Habitat Designation sections and the unit description and map for Unit 2 in this final rule).
Comment 12: One commenter stated that the Service makes the
assumption that Orcutt Creek is not impacted by existing urban and
agricultural uses and does not account for the fact that Orcutt Creek
and other streams are fully impeded to downstream flows and are
affected by other threats (e.g., County zoning may permit development
within the floodplain with minimal setbacks from creeks, nonpoint
source pollution runoff from agriculture (herbicides, fertilizers) and urban areas, flood control measures).
Our Response: We do not assume that the entire stretch of Orcutt
Creek, the Santa Maria River, and their associated watersheds are not
impacted by existing uses. We are aware that the watersheds have been
adversely affected by urban and agricultural practices and we thank the
commenter for pointing out additional threats of which we were not
aware to the species. We have included this new information in the
Special Management Considerations or Protection and Final Critical
Habitat Designation sections of this rule. We believe that the Orcutt
Creek area is essential to the conservation of the species because it
contains pockets of suitable habitat that act as ``stepping stone''
habitats and are an essential dispersal corridor. For additional
information on this topic, please see Comments 5 and 11 and our responses to them.
Comment 13: Three commenters did not feel that we presented
sufficient justification to propose unoccupied habitat, specifically
areas in Unit 1 and Unit 3, and that it was the intent of Congress to
limit the designation of critical habitat to occupied areas, except in unusual circumstances.
Our Response: The Act specifically provides that the Service may
designate as critical habitat areas outside of the geographical area
occupied by a species at the time it was listed if we determine that
those areas are essential for the conservation of the species (section
3(5)(A)(ii) of the Act). By regulation, we can designate as critical
habitat areas ``outside the geographical area presently occupied by a
species only when a designation limited to its present range would be
inadequate to ensure the conservation of the species'' (50 CFR 424.12(e)).
The commenters included some supplemental information regarding
their statements that unoccupied areas are not essential for the
recovery of Cirsium loncholepis. Multiple peer reviewers commented that
unoccupied areas were essential to the conservation of the species and
that it was scientifically sound and justified to designate these areas
as critical habitat. After analyzing this supplemental information, we
determined that the current range of the species is not sufficient to
ensure its conservation and that unoccupied areas (both within and
outside the current range of the species) are essential for its
conservation. For additional information on this issue, please see Comment 2 and our response to it.
Comment 14: One commenter stated that Unit 3 has different
environmental conditions than other units in the following ways: it
does not contain PCEs; it is not occupied (because 1987 was the last
time that plants were seen); we did not describe why or how Unit 3 is
necessary to ensure connectivity in a manner that is ``essential'' for
the conservation of the species; in Unit 3 ``...only a very few Thistle
plants have ever been found and only a very small percentage of Unit 3
contains the [PCEs] for the Thistle...''; and we did not cite any
specific data, studies, or other evidence that demonstrate that Unit 3
is essential for establishing connectivity with areas occupied by
Cirsium loncholepis and for preserving genetic variability within the
species. Therefore it is impossible for the public to generate
meaningful comments. One commenter objected to the inclusion of Unit 3.
Our Response: We believe that the final revised designation for
Cirsium loncholepis accurately contains all specific areas meeting the
definition of critical habitat for this species. As discussed in the
Criteria Used to Identify Critical Habitat section of the proposed
revised designation and this final revised designation, we delineated
proposed revised critical habitat for C. loncholepis using the following criteria:
[[Page 56982]]
(1) Areas occupied by individuals at the time of listing and areas currently occupied by this species;
(2) Habitat providing connectivity between the areas containing the extant populations;
(3) Areas outside the geographical area occupied by the species at
the time of listing, but within the historical range of the species,
that contain large, continuous blocks of suitable habitat, such as the
numerous mesic areas and seeps in and surrounding the lower reaches of the Santa Ynez River;
(4) Important corridors of suitable habitat that connect the
large, continuous areas based on seed or pollen dispersal abilities in
those corridors, such as the areas along Orcutt Creek between the Guadalupe Dunes and Ca[ntilde]ada de las Flores; and
(5) The presence and characteristics of other features that are
important to maintain the metapopulation dynamics for C. loncholepis in
the areas listed in (1) through (4) above (e.g., winds and their
relationship to the formation of geographic features, movement patterns for various dispersal agents, watersheds, geology).
Application of these criteria captures the physical and biological features that are essential to the conservation of this species, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. The criteria we used resulted in a critical habitat designation that is representative of the diversity in this species' range and includes both occupied and unoccupied habitat. Some previously occupied areas (such as Ca[ntilde]ada de las Flores) may have once represented core populations for this species, but due to its precipitous decline (as discussed in the Primary Constituent Elements section of this rule), we have determined that these areas are still essential for the conservation of this species. We also made a determination that modifications to the critical habitat boundaries in Unit 3 were not warranted.
Data used in the preparation of this final revised designation also
indicate that the basic habitat conditions are still present in Unit 3
(e.g., freshwater seeps and native vegetation). Unit 3 occurs at a
pivotal location for the species as a whole; it is downwind from
Cirsium loncholepis populations in the Santa Maria Valley and areas on
San Antonio Terrace (Hunt 2008, unpaginated) and upstream from
populations in the San Antonio Valley (e.g., the mouth of San Antonio
Creek (one of the potential type locality sites for C. loncholepis) and
San Antonio Terrace Dunes). The Ca[ntilde]ada de las Flores location is
essential to maintain connectivity between populations in the Santa
Maria Valley and populations in the San Antonio Creek and Santa Ynez
Valleys and contains habitat for a core population area. The areas in
question meet our criteria used to identify critical habitat (for
additional information, please see the Criteria Used to Identify Critical Habitat section below).
Comment 15: One commenter stated that 50 percent of the proposed
critical habitat in Unit 3 is already covered by currently designated
critical habitat for California tiger salamander; therefore, because
the area is already protected and requires consultation under the Act, this rule is redundant.
Our Response: The Act directs us to analyze and determine which
areas are essential to the conservation of each species. We analyzed
the areas that we determined were essential for Cirsium loncholepis in
this rule. While there may be overlap in critical habitat boundaries
for different species, in this case, the PCEs (and essential habitat
components) are different for C. loncholepis than they are for
California tiger salamander. Therefore the critical habitat
determination for California tiger salamander does not describe the
same habitat and it does not offer the same protections as the designation of critical habitat for C. loncholepis.
Comment 16: One commenter stated that the adoption of the proposed
critical habitat rule is subject to compliance with National
Environmental Policy Act (NEPA). The Service must comply with NEPA in
designating critical habitat as per the Tenth Circuit Court decision (Catron County Bd. Of Comm'r, N.M.v. USFWS, 75 F.3d 1429).
Our Response: It is our position that, outside the jurisdiction of
the Tenth Circuit Court of Appeals, we do not need to prepare
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in
connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld in the Ninth Circuit Court of Appeals (Douglas County v.
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996)).
Comment 17: Two commenters stated there are areas within the
proposed critical habitat that should not be included in the final
designation because they do not contain the PCEs, are not occupied by
the species, or otherwise do not meet the definition of critical habitat.
Our Response: Where sitespecific information was submitted to us
during the comment periods for this revised designation with a
rationale as to why an area should not be designated as critical
habitat, we evaluated that information in accordance with the
definition of critical habitat under to section 3(5)(A) of the Act.
This rule notes that there are areas within the boundaries of
designated critical habitat that do not contain those biological
features essential for the conservation of the species (e.g., roads,
buildings, and other areas that do not contain PCEs) and these specific
areas are not included in designated critical habitat by text provided
in this rule even though they appear to be within the boundaries of
designated critical habitat. Please see the individual unit
descriptions for discussions of the PCEs and where the unit is occupied by the species.
For additional information regarding Unit 3, please see Comment 14
and our response to it. For additional information regarding Unit 1 and
areas in the OHV area of ODSVRA, please see Comment 18 and our response to it and the unit description for Unit 1.
Comment 18: One commenter stated that the Service previously
excluded the heavilyused offhighway vehicle (OHV) riding areas within
the Oceano Dunes State Vehicular Recreation Area (ODSVRA) in the 2004
final critical habitat designation because the area is not essential
for the conservation of Cirsium loncholepis. Two commenters objected to
the inclusion in proposed critical habitat Unit 1 of large areas on
State Park lands within the ODSVRA in proposed critical habitat Unit 1 that are used for OHV recreation on a regular basis.
Our Response: We acknowledge that these areas were not included in
the 2004 final rule, but the best available science at that time
indicated that Cirsium loncholepis was still extant at a number of
locations throughout its range. Current information indicates that the
species has experienced severe declines in the number of populations,
occurrences, and individuals such that areas beyond the species'
currently occupied range are essential for its conservation. In the
process of analyzing what constitutes critical habitat for the species
during this revision, we determined that certain areas within the OHV area met the definition of critical habitat.
In this final revised designation of critical habitat, we have
included polygons of critical habitat that contain vegetation that occur and are fenced off
[[Page 56983]]
within the OHV riding area of ODSVRA because they are essential to the
conservation of the species. The polygons contain habitat patches,
including open sand dune swales and vegetation islands. In identifying
the areas designated as final revised critical habitat, we delineated
the boundaries based on the best available science, with the
understanding that this is a dynamic ecosystem, and it has been
documented that these vegetation islands move over time (California
Geological Society (CGS) 2007, 113 pp.). The habitat patches move up to
120 meters (m) (394 feet (ft)) over a 20year time frame (CGS 2007, 113
pp.); therefore, we developed a formula to determine the predicted
migration of these patches over the next 20 years. For a description of
this formula, please see the Criteria Used to Identify Critical Habitat section of this rule.
Following our evaluation of the information provided, we made a determination that modifications to the critical habitat boundaries were warranted in parts of Unit 1. The areas within the habitat patches (including vegetation islands and open sand dune swales) containing PCEs in the appropriate quantity and spatial arrangement necessary to provide the features essential to the conservation of Cirsium loncholepis are essential. Therefore, under this rule, we are designating them as critical habitat. However, the areas within the boundaries of these polygons that are outside of the habitat patches (but within the OHV riding area of ODSVRA) and are used on a regular basis for OHV recreation do not currently contain PCEs in the appropriate quantity and spatial arrangement necessary to provide the features essential to the conservation of C. loncholepis. We are designating these areas as critical habitat because the vegetation islands will migrate beyond their current boundaries in the foreseeable future, and thus the areas are essential for the conservation of C. loncholepis.
These polygons of critical habitat contain suitable habitat and are adjacent to currently occupied and historically occupied sites. The polygons are northwest of a large continuous block of occupied habitat. The Callender Dunes are dominated by moderate to strong winds from the northwest (categorized as greater than 7.47 miles per hour (mph) (12.02 kilometers per hour (kph)) most of the time and throughout the year (U.S. Department of Agriculture Natural Resources Conservation Service (USDA NRCS) 2008, unpaginated; National Oceanic and Atmospheric Administration Western Regional Climate Center (NOAA) 2007, unpaginated). However, moderate to strong winds from the southeast also occur in this area during parts of the year (November through February), which overlaps with at least 2 months of the approximately 5month period that seeds are dispersed from the remains of the flowering stalk (August through December). These winds are an essential dispersal vector that helps move Cirsium loncholepis seeds between areas of suitable habitat; as a result, the vegetated islands become essential in maintaining connectivity within and between occurrences and populations. Further, several peer reviewers indicated that for fugitive species (i.e., species that move from place to place through time) like C. loncholepis that also rely on longdistance dispersal, adjacent occupied and unoccupied suitable habitat is essential for survival. These vegetation islands meet this need for the species, and provide a shifting mosaic of habitats that depend upon geomorphic processes operating across large landscape areas for their maintenance.
In the proposed revised designation, we proposed 714 ac (290 ha)
within the OHV area of ODSVRA. In this final rule, we have reduced the
number of acres within the OHV area of ODSVRA to 75 ac (30 ha) that are
included in critical habitat Unit 1 because we determined that areas
with a longstanding history of heavy OHV use did not contain the PCEs
in the appropriate quantity and spatial arrangement (see our response
to Comment 20). We made every effort to include the essential vegetated
island habitats and the areas that they are expected to migrate to in
the foreseeable future based on a recent analysis of historical
movements of these habitats in the ODSVRA and the geomorphology of the
Callender Dunes (CGS 2007, 113 pp.; Cooper 1967, pp. 7590; Hunt 1993, pp. 572; USDA NRCS 2008, unpaginated).
Comment 19: Two commenters discussed the ODSVRA's preparation of
an habitat conservation plan (HCP) and concluded that the completion of
the HCP will make the critical habitat rule superfluous and
unnecessary, as the Service excludes areas if they do not need special
management. Therefore, because the species will be addressed in the
soontobereleased draft HCP for ODSRVA, no special management will be
needed in any of the proposed critical habitat areas within ODSVRA.
Our Response: In considering the benefits of including lands in a
designation that are covered by a proposed or current HCP or other
management plan, we evaluate a number of factors to help us determine
if the plan provides equivalent or greater conservation benefit than
would likely result from consultation on a designation. These criteria
are discussed in the Application of Section 4(b)(2) of the Act section below.
Because the HCP under development for the ODSVRA is still in draft
form, there is uncertainty concerning what actions may be proposed or
committed to for conservation of the species, and there is uncertainty
concerning whether any actions proposed will be effective. Accordingly,
the draft HCP does not currently meet the criteria necessary for us to
exclude these areas on the basis of the HCP under section 4(b)(2) of the Act.
Comment 20: The California Department of Parks and Recreation
(CDPR) requested that we exclude from critical habitat 820 acres of
lands they manage (in and adjacent to the OHV area) at the ODSVRA. They
requested that even if the lands in ODSVRA can be considered critical
habitat, the Service exclude them under section 4(b)(2) of the Act for the following reasons:
(1) There is a longstanding history of OHV use of Oceano Dunes;
(2) The State law that established ODSVRA mandated the area be used for OHV recreation;
(3) Critical habitat is not needed because CDPR has a rare plant
protection program in place to manage populations within ODSVRA and if
Cirsium loncholepis is found there in the future, those plants would be
protected as part of the rare plant protection program; and
(4) Economic impacts need to be considered, and they outweigh the benefits of inclusion of this area.
Our Response: We analyzed the entire area within ODSVRA that was
proposed as critical habitat in the proposed revised critical habitat
designation. We determined that approximately 639 ac (259 ha) of the
714 ac proposed as critical habitat do not contain the PCEs in the
appropriate quantity and spatial arrangement that are essential for the
conservation of the species. We are not designating as critical habitat
these approximately 639 ac. Regarding the four points outlined in the CDPR comment letter (Zilke 2008):
(1) The Act directs us to analyze areas essential to the
conservation of the species, and section 4(b)(2) of the Act states that
the Secretary may exclude any area if he determines that the benefits
of exclusion outweigh the benefits of specifying an area as critical
habitat, unless he determines, based on the best scientific and commercial data available, that failure to designate such
[[Page 56984]]
area as critical habitat will result in the extinction of the species
concerned. We analyzed the benefits of exclusion and the benefits of
inclusion, and determined that some of the areas within ODSVRA were
essential to the conservation of the species (see the unit description
for Unit 1 and the map for Unit 1). Some of the areas within ODSVRA do
not contain PCEs in the appropriate quantity and spatial arrangement
that are essential for the conservation of the species. In designating
those areas we determined to be essential to the conservation of the
species, we made every effort to avoid those areas that do not contain
the physical and biological features in the appropriate quantity and
spatial arrangement. We determined that areas with a longstanding
history of heavy OHV use did not contain the PCEs in the appropriate
quantity and spatial arrangement (see our response to Comment 18).
(2) We further determined that these areas, as designated, do not
contradict the State law that established ODSVRA mandating the area be
used for OHV recreation (see our responses to Comments 17 and 18 and our description of these areas in the unit description).
(3) In considering whether to exclude an area from designation as
critical habitat on the basis of a management plan (or rare plant
protection program), we evaluate a number of factors to help us
determine if the plan provides equivalent or greater conservation
benefit than would likely result from consultation on a designation.
These factors include: (A) Whether the plan is complete and
provides protection from destruction or adverse modification; (B)
whether there is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and (C) whether the plan provides conservation strategies
and measures consistent with currently accepted principles of
conservation biology. The CDPR has not provided us with a management
plan that meets all of those conditions necessary for us to exclude these areas from the designation.
(4) We analyzed the benefits of exclusion and the benefits of
inclusion of the remaining approximately 75 ac (30 ha) in the OHV area
of ODSVRA. We determined that the remaining approximately 75 ac (30 ha)
are essential to the conservation of the species, and the benefits of
exclusion do not outweigh the benefits of inclusion. Accordingly, we
are designating these approximately 75 ac (30 ha) as critical habitat.
See our responses to Comments 17 and 18 and the following sections
for a more indepth discussion of these issues: Criteria Used To
Identify Critical Habitat, the unit description for Unit 1, and
Relationship of Critical Habitat to Lands Managed by the California Department of Parks and Recreation (CDPR).
Comment 21: One commenter, citing case decisions, stated a general
comment that the Service's position that an area does not need special
management where another conservation plan is in place is both
illogical and legally invalid and the Cirsium loncholepis habitat
within the boundaries of any conservation plan also meets the
definition of critical habitat precisely because it requires the
special management purportedly provided by the conservation plans.
Our Response: The comment references a former Service
interpretation as to the interrelationship of existing conservation
plans with the definition of critical habitat in the Act. The
definition states, in part, that ``critical habitat'' means (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) which may require special management
considerations or protection (section 3(5)(A)(i) of the Act). Thus in
determining critical habitat for an area occupied by the species at the
time of listing, the Service looks at whether the physical or
biological features of the area are both essential to the conservation
of the species and may require special management considerations or
protections. The commenter suggests that habitat within the boundaries
of any conservation plan meets the definition of critical habitat. For
that to be true, such an area must also have the physical and
biological features essential to the conservation of the species to be
considered critical habitat. The Service did not, in the proposed
revised designation, suggest that areas with existing special
management would not meet the definition of critical habitat. However,
areas subject to a conservation plan and thus subject to special
management, may be considered for exclusion from the critical habitat
designation if the plan meets certain criteria (see the Application of
Section 4(b)(2) of the Act section below for a discussion of these criteria).
Comment 22: Two commenters were concerned that new PCEs were
included that do not require a water source, that these PCEs and areas
without water or a water source are not essential, and that the
description of PCE 4 is ``insufficiently specific'' and includes every drainage within the region.
Our Response: Each PCE and area proposed for designation as
critical habitat can be essential for a different reason or a different
part of the plant's life cycle. The dispersal of genetic material among
and between populations is essential for the conservation and recovery
of this species (see our response to Comment 3) and is covered by PCE
4, which includes dispersal by both wind and water. Water is not
essential to disperse the plant's seeds by wind, but dispersal by wind
is essential for the conservation and recovery of the species. Also,
the plant does grow and has been documented in areas that are ``dry,''
such as on the top of ridges in the Guadalupe Oil Fields to the south
of the GuadalupeNipomo Dunes National Wildlife Refuge. We believe the
word drainage is adequately specific, as it eliminates many upland and
dry areas. Drainages within the boundaries of the revised critical
habitat designation all contain suitable habitat and are important
dispersal features, which are what we focused on in developing the
revised critical habitat designation for this species. Drainages
outside the boundaries of critical habitat, but within the region, may
be important, but we are not designating them as critical habitat.
Comment 23: One commenter stated that the only effective measure
to ensure the recovery of the species (Cirsium loncholepis) in
agricultural and urban areas is to preclude agricultural practices and
production and urban development and that this constitutes a ``taking''
of private property; another commenter asked us to hold off
interference in the private sector, stating that designating critical
habitat [for C. loncholepis] will interfere with agriculture to feed all of the people.
Our Response: Critical habitat has a direct regulatory impact only
on Federal actions or actions requiring Federal authorization,
permitting, or funding. Therefore, a critical habitat designation on
private land has no regulatory impact on actions carried out by
landowners unless they seek Federal funding or a Federal permit to
carry out those actions. For example, if landowners must obtain a
permit from the U.S. Army Corps of Engineers (Corps) under section 404
of the Clean Water Act (33 U.S.C. 1251 et seq. ) to carry out an action on their land, the Corps must
[[Page 56985]]
consult with the Service under section 7 of the Act to evaluate the
effects that the permitted activity may have on critical habitat. Even
then, the designation may only have a substantial impact on the
activity if it is likely to result in the destruction or adverse
modification of the critical habitat. It is the responsibility of the
Federal agency, not the private landowner, to initiate the consultation with the Service.
The Act prohibits Federal agencies from carrying out actions that would destroy or adversely modify critical habitat. A Federal action (e.g., row crop farming, urban construction) that is not likely to cause the destruction or adverse modification of Cirsium loncholepis habitat may not be materially affected by a critical habitat designation. Federal action agencies must evaluate the potential effects of each action on its own merits. If a Federal action would result in the destruction or adverse modification of C. loncholepis habitat, the Service would suggest reasonable and prudent alternatives to avoid the destruction or adverse modification of critical habitat.
The promulgation of a regulation does not take private property
unless the regulation denies the property owners all economically
beneficial or productive use of their land. Further, in accordance with
Executive Order 12630 (Government Actions and Interference with
Constitutionally Protected Private Property Rights), we analyzed the
potential takings implications of designating critical habitat for
Cirsium loncholepis in a takings implications assessment (TIA), which
is available on request. The conclusion in the TIA was that the
possibility for take of private property due to designation of critical habitat for Cirsium loncholepis is remote.
Comment 24: One commenter stated that it is the Service's
obligation under section 2(c) to ``seek to conserve endangered species
and threatened species and shall utilize their authorities in
furtherance of the purposes of this Act'' and section 7(a)(1) to conserve threatened and endangered species.
Our Response: Section 4(a)(3) of the Act requires that critical
habitat be designated for listed species. This rule meets our
obligations under section 4(a)(3), which will help us accomplish our
obligations under sections 2(c) and 7(a)(1). The designation of
critical habitat for Cirsium loncholepis will not conflict with or
prevent us from carrying out our obligations under sections 2(c) and 7(a)(1).
Comment 25: One commenter stated that we should designate as
critical habitat all habitat and lands proposed for designation
pursuant to the Act and that we should issue no exemptions or exclusions.
Our Response: We proposed to designate 38,447 ac (15,559 ha) as
critical habitat in the proposed revised designation of critical
habitat for Cirsium loncholepis (73 FR 45806). Of that total, we
determined in this final revised designation that 37,810 ac (15,300 ha)
meet the definition of critical habitat and are essential to the
conservation of the species. We determined that some areas
(approximately 639 ac (259 ha) within Unit 1) with a longstanding
history of heavy OHV use did not contain the PCEs in the appropriate
quantity and spatial arrangement and therefore were not essential to
the conservation of the species and did not fit the definition of
critical habitat (see our response to Comments 18 and 20). We are
excluding 13,705 ac (5,546 ha) of Department of Defense (DOD) lands
within the boundaries of Vandenberg Air Force Base (VAFB) under section
4(b)(2) of the Act based on potential impacts to national security.
Because the Service is not an expert in military readiness, we defer to
the expertise of the DOD in identifying specific credible military
readiness or national security impacts. See the section entitled
Relationship of Critical Habitat to Lands Managed by the Department of
Defense (DOD) below for a more indepth discussion of this topic.
Comment 26: Two commenters submitted duplicate requests for us to
revise the boundaries of Unit 3 according to those recommended in a
separate comment letter. The commenters stated that we should exclude
upland, developed, and agriculture areas in Unit 3 because these areas
provide poor habitat for potential Cirsium loncholepis plants and that
this exclusion ``...should not cause significant impacts to the
thistle's recovery.'' The commenters stated that the proposed revisions
to the boundaries of Unit 3 were based only on PCEs 1 and 2 and
acknowledged that ``the Ca[ntilde]ada de las Flores Unit (Unit 3) may
potentially provide a key linkage between known [C. loncholepis] populations.''
Our Response: We are directed by the Act to determine what areas
are essential for the conservation of a species, not what areas are
essential, but ``...should not cause significant impacts to the
[species'] recovery''. We state in the text that developed areas and
agricultural fields that do not contain PCEs are not critical habitat.
Information from J. Sainz (Elvin 2007a) contradicts some information
presented in this comment; specifically, while she did state that
Cirsium loncholepis primarily occurred at three places at Ca[ntilde]ada
de las Flores, she also stated that it historically occurred
sporadically throughout the lowlands there, and not just at the three
specific locations where it most commonly was found. Information
received from peer reviewers indicate that a much larger area at
Ca[ntilde]ada de las Flores contains suitable habitat that at present,
due to drought and overgrazing, appears less suitable (Hunt 2008). Hunt
states that the entire valley floor in Ca[ntilde]ada de las Flores
floods in heavy rain years. We determined that the 740 ac (299 ha) at
Ca[ntilde]ada de las Flores meet the definition of critical habitat for
C. loncholepis (see the unit description for Unit 3 in the Final Critical Habitat section below).
Comment 27: One comment letter stated that DOD lands at VAFB must
NOT [emphasis included in comment] be exempt from the requirements of
the Act to protect Cirsium loncholepis in the 17,705 ac of wetland and
dune areas on the ``people's property'' on VAFB. Another commenter
stated that they believe that it is not a national security issue for
VAFB to be exempted from ``protecting the people's Cirsium loncholepis and its habitat.''
Our Response: The DOD is not exempt from the Endangered Species
Act, or from the designation of critical habitat. We determined that
14,151 ac (5,727 ha) of DOD lands meet the definition of critical
habitat within the boundaries of VAFB. While DOD lands may not be
designated as critical habitat if they are subject to an integrated
natural resources management plan (INRMP) that is recognized by the
Secretary to provide a benefit to the species (per section 4(a)(3)(B)
of the Act), such a plan does not exist for DOD lands at VAFB. We are
excluding 13,705 ac (5,546 ha) of DOD lands within the boundaries of
VAFB under section 4(b)(2) of the Act based on potential impacts to
national security. Please see our response to Comment 25 and the
section entitled Relationship of Critical Habitat to Lands Managed by
the Department of Defense (DOD) below for a more indepth discussion of this topic.
Federal Agency Comments
Comment 28: The DOD requested that we exclude its lands at VAFB
from our final revised critical habitat designation based on an
exemption under section 4(a)(3)(B) of the Act for military
installations with an INRMP. Section 4 of the Act was amended through
the National Defense Authorization Act for 2004 (Public Law 108136). Section
[[Page 56986]]
4(a)(3)(B) of the Act states the Secretary shall not designate as
critical habitat any lands controlled by DOD that are subject to an
INRMP, if the Secretary determines that such a plan provides a benefit to the species for which critical habitat is proposed.
Our Response: The Sikes Act Improvement Act of 1997 (Sikes Act)
requires each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete, by November 17, 2001, an INRMP. An INRMP integrates
implementation of the military mission of the installation with
stewardship of the natural resources found there. Each INRMP includes
an assessment of the ecological needs on the installation, including
the need to provide for the conservation of listed species; a statement
of goals and priorities; a detailed description of management actions
to be implemented to provide for these ecological needs; and a
monitoring and adaptive management plan. We consult with the military
on the development and implementation of INRMPs for installations with
listed species. Because the INRMP being prepared by DOD for VAFB is in
draft form and will not be completed by the time this final revised
critical habitat designation publishes in the Federal Register, we
cannot determine if the INRMP provides a benefit to Cirsium
loncholepis. Therefore, we cannot exempt DOD lands at VAFB on the basis of section 4(a)(3)(B) of the Act.
Comment 29: The DOD further requested that we exclude its lands at
VAFB based on section 4(b)(2) of the Act. They specifically discussed
that national security would be impacted because a critical habitat
designation would limit the amount of natural infrastructure (e.g.,
land, water, and air resources) that are needed to support military
operations and training. DOD also stated that they believe the benefits
of exclusion outweigh the benefits of inclusion and that exclusion of
these lands would not result in extinction of Cirsium loncholepis. They
included in the comment their own analysis of how they reached that
conclusion, as follows: for potential benefits of designating critical
habitat, they do not foresee any benefits, but instead stated that it
would be more beneficial to designate critical habitat on lands where
no proven, longterm conservation and management regime exists and
where other Federal protections do not apply. They stated that
designation of critical habitat will provide no additional benefit to C. loncholepis because:
(1) They are developing a draft conservation agreement for Cirsium
loncholepis (also referred to by the DOD as the Draft Endangered
Species Management Plan for La Graciosa Thistle (ESMP)) in cooperation
with the Service that will ensure conservation measures are implemented;
(2) Other existing regulations, such as the National Environmental
Policy Act (NEPA) and the Environmental Impact Analysis Process (part
of U.S. Air Force Policy codified in 32 CFR 989), assure that
appropriate conservation measures are undertaken for listed species and their habitat; and
(3) Limited resources could be better spent on implementation of
management activities rather than additional unnecessary consultations.
Our Response: Section 4(b)(2) of the Act directs the Secretary to
consider the impacts of designating such areas as critical habitat and
provides the Secretary with discretion to exclude particular areas if
the benefits of exclusion outweigh the benefits of inclusion unless the
exclusion will result in the extinction of the species. We believe that
our criteria for proposing critical habitat captured all areas that
meet the definition of critical habitat under section 3(5)(A) of the
Act. Therefore, we will focus our response to this comment on our
exclusion of lands under section 4(b)(2) of the Act that we determined
met the definition of critical habitat under section 3(5)(A) of the Act.
After determining the areas that meet the definition of critical habitat under section 3(5)(A) of the Act, we took into consideration the economic impact, any potential impacts on national security, and other relevant impacts of specifying any particular area as critical habitat for Cirsium loncholepis. In this final revised designation, we recognize that designating critical habitat on lands within VAFB may have an impact on national security. These impacts are described in detail in the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) below. Based on these relevant impacts, we evaluated the benefits of designating areas as critical habitat against the benefits of excluding these areas from the critical habitat designation. Upon weighing the specific benefits of inclusion against specific benefits of exclusion, we determined that the benefits of excluding all lands owned by DOD at VAFB (13,705 ac (5,546 ha) of the 14,151 ac (5,727 ha) within the boundaries of VAFB) outweigh the benefits of including these areas in the final critical habitat designation. Further, we determined that the exclusion of these areas will not result in the extinction of C. loncholepis. See the Application of Section 4(b)(2) of the Act and Exclusions under Section 4(b)(2) of the Act sections of this final rule for a detailed discussion of the benefits of excluding lands important to national security versus the benefits of including these areas in a critical habitat designation.
We respond to the particular points that DOD raised as follows. With respect to their comment that designation of critical habitat is more beneficial on lands where no proven, longterm conservation and management regime exists and where other Federal protections do not apply, our response is that we are not charged with designating critical habitat where it would be ``most beneficial'' to the species, but rather on lands that meet the definition of critical habitat. Moreover, the comment implies that protections will be conferred by critical habitat designation in the absence of other federal protections. However, critical habitat in and of itself does not confer protection on lands that are designated, nor does it affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non Federal activities are not affected by the designation if they lack a Federal nexus. These impacts are described
FOR FURTHER INFORMATION CONTACT
Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/6441766; facsimile 805/6443958). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 8008778339.