Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the California Tiger Salamander, Central Population, 49380-49458 [05-16234]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 162 (Tuesday, August 23, 2005)]
[Rules and Regulations]
[Pages 49380-49458]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-16234]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the California Tiger Salamander, Central Population; Final 
Rule

Federal Register / Vol. 70, No. 162 / Tuesday, August 23, 2005 / 
Rules and Regulations

[[Page 49380]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT68


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the California Tiger Salamander, Central 
Population

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for the Central population of the 
California tiger salamander (Ambystoma californiense) pursuant to the 
Endangered Species Act of 1973, as amended (Act). In total, 
approximately 199,109 acres (ac) (80,576 hectares (ha)) fall within the 
boundaries of the critical habitat designation. The critical habitat is 
located within 19 counties in California.

DATES: This rule becomes effective on September 22, 2005.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the Sacramento Fish and Wildlife Office, 2800 Cottage Way, 
Sacramento, CA 95825 (telephone (916) 414-6600). The final rule, 
economic analysis, and map will also be available via the Internet at 
https://sacramento.fws.gov or by contacting the Sacramento Fish and 
Wildlife.

FOR FURTHER INFORMATION CONTACT: Arnold Roessler, Sacramento Fish and 
Wildlife Office at the address above (telephone (916) 414-6600; 
facsimile (916) 414-6712).

SUPPLEMENTARY INFORMATION:

Designation of Critical Habitat Provides Little Additional Protection 
to Species

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

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 473 species or 38 percent 
of the 1,253 listed species in the U.S. under the jurisdiction of the 
Service have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, Section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions of unauthorized take, Section 6 funding to the States, and 
the Section 10 incidental take permit process. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    We note, however, that the August 6, 2004, Ninth Circuit judicial 
opinion, Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service) found our definition of adverse modification was invalid. In 
response to the decision, the Director provided guidance to the Service 
based on the statutory language.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions with the most 
biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    A physical description of the California tiger salamander, its 
taxonomy, distribution, life history, biology, habitat requirements and 
characteristics, dispersal and migration, and other relevant 
information is included in the Background sections of the final rule to 
list the California tiger salamander as a threatened species (69 FR 
47212; August 4, 2004) and the proposed rule to designate critical 
habitat for the Central population of California tiger salamander (69 
FR 48570; August 10, 2004). Additional relevant information may be 
found in the final rules to list the Santa Barbara County population of 
the California tiger salamander as endangered (65 FR 57242; September 
21, 2000) and to list the Sonoma County population of the

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California tiger salamander as endangered (68 FR 13498; March 19, 
2003), and the final rule to designate critical habitat for the Santa 
Barbara population (69 FR 68568; November 24, 2004).

Previous Federal Actions

    On August 10, 2004, we published in the Federal Register a proposed 
rule to designate critical habitat for the Central population of the 
California tiger salamander (referred to hereinafter as ``CTS Central 
population'') (69 FR 48570). On October 13, 2004, a complaint was filed 
in the U.S. District Court for the Northern District of California 
(Center for Biological Diversity and Environmental Defense Council v. 
U.S. Fish and Wildlife Service et al. (Case No. C-04 4324 FMS)), which 
in part identified the failure of designating critical habitat for the 
California tiger salamander in the central portion of its range. On 
February 3, 2005, the district court approved a settlement agreement 
between the parties that established an August 10, 2005, deadline for 
final designation of critical habitat for the California tiger 
salamander in the central portion of its range to be submitted to the 
Federal Register for publication. This final rulemaking is being made 
in order to meet the date established in accordance with the settlement 
agreement. For a discussion of other previous Federal actions regarding 
the California tiger salamander, please see the final rule to list the 
Central population of the California tiger salamander as a threatened 
species across its range (69 FR 47212, August 4, 2004). Other Federal 
actions regarding California tiger salamander prior to May 2004 are 
summarized in that final rule and are incorporated by reference.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for the Central population of 
California tiger salamander in the proposed rule published on August 
10, 2004 (69 FR 48570). We also contacted appropriate Federal, State, 
and local agencies; scientific organizations; and other interested 
parties and invited them to comment on the proposed rule. In addition, 
we held five public meetings/workshops between January 2005 and March 
2005, in the following California locations: Fresno, Merced, Modesto, 
Red Bluff, and Sacramento. During those public meetings we provided 
information on the designation, accepted written comments from the 
public, answered questions related to the designation, and provided 
information on schedules and contacts for additional information and 
subsequent open comment periods.
    During the comment period that opened on August 10, 2004, and 
closed on October 12, 2004, we received comments directly addressing 
the proposed critical habitat designation: one from a peer reviewer, 
one from a Federal agency, six from Department of Defense agencies, one 
from a State agency, two from local government, and 34 from 
organizations or individuals. We received a single request for a public 
hearing prior to the deadline of September 24, 2004. Sacramento Fish 
and Wildlife Office staff met with the requester and discussed the 
Public Hearing process procedures and their client's critical habitat 
concerns regarding Central Valley Region Unit 1 in Yolo County, 
California. On March 9, 2005, we received a written withdrawal of the 
public hearing request (Service in litt. 2005; Neasham in litt. 2005).
    During the comment period that opened on July 18, 2005, and closed 
on August 3, 2005, we received an additional 40 comments directly 
addressing the proposed critical habitat designation and or the draft 
economic analysis. Of these latter comments, three were from peer 
reviewers, one from a Federal agency, and 32 were from organizations or 
individuals. We received no additional State comments.
    The comments we received were reviewed and the significant comments 
were grouped into general issues specifically relating to the proposed 
critical habitat designation for Central population of CTS, and are 
addressed in the following summary and incorporated into the final 
rule, as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from 15 knowledgeable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received a response from four of the peer 
reviewers. Peer review comments are addressed in the following summary 
and incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment: The peer reviewer agreed with our approach to the long 
term conservation of the species. The peer reviewer agreed that 
conservation of the range of habitat types in which a species occurs 
helps maintain local adaptations that are important for long term 
viability.
    Our Response: In our proposal to designate critical habitat we 
identified those five approaches to conserve the Central population of 
the California tiger salamander, and we continue to apply these 
approaches in this final rule. To ensure the long term conservation of 
the species, Primary Constituent Elements (PCEs) were identified (see 
Primary Constituent Element section), and critical habitat units are 
designated consistent with these five principles.
    Comment: The peer reviewer stated that the term, ``rescue ponds'' 
may be misapplied or misunderstood by the general public and suggested 
using the more easily understood term, ``dispersal ponds'' instead. 
Another reviewer suggested we specifically define the types of breeding 
habitat.
    Our Response: We agree and have replaced that term throughout this 
final rule. The term ``dispersal ponds,'' which is defined as ponds 
located away from the pond in which the adult or juvenile CTS was born, 
encompasses the definition of ``rescue ponds.'' We have further refined 
our description of the primary constituent elements including breeding 
habitat in the final rule.

Issue 1: Department of Defense (DOD)

    Comment: The Army has requested that their lands at Fort Hunter-
Liggett be exempted from final critical habitat designation based on 
their Integrated Natural Resources Management Plan (INRMP) providing a 
benefit to the CTS in accordance with section 4(a)(3) of the Act. 
Section 318 of fiscal year 2004 National Defense Authorization Act 
(Pub. L. 108-136) amended section 4 of the Endangered Species Act to 
address the relationship of INRMPs to critical habitat by adding a new 
section 4(a)(3)(B). This provision prohibits us from designating as 
critical habitat any lands or other geographical areas owned or 
controlled by the DOD, or designated for its use, that are subject to 
an INRMP prepared under section 101 of the Sikes Act, if the Secretary 
of the Interior determines, in writing, that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation.
    Our Response: We have determined that exclusion of Fort Hunter-
Liggett from final critical habitat for CTS under section 4(a)(3) of 
the Act is appropriate.
    Comment: The Army requested that areas identified for development 
in their Installation-wide Multispecies Habitat Management Plan for 
Former Fort Ord be excluded from critical habitat, in

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accordance with section 4(b)(2) of the Act, because they believe that 
designation of critical habitat in those areas would result in economic 
costs and delays such that the benefits of exclusion would outweigh the 
benefits of inclusion. Specifically, they requested exclusion of the 
Bureau of Land Management (BLM) Office (approximately 5 hectares 
(ha)(13 acres(ac))) and Military Operations-Urban Terrain Facility 
(MOUT) (approximately 22 ha (54 ac)) parcels, which are surrounded by 
the approximately 6000-ha (15,000 ac) Natural Resource Management Area 
(NRMA). The NRMA will be managed by BLM with the primary management 
goals being conservation and enhancement of threatened and endangered 
species. They also requested exclusion of a two percent development 
allowance within the NRMA and of all existing paved roads and their 
associated shoulders.
    Our Response: The BLM Office and MOUT parcels are relatively small 
areas which are already partially developed and are identified for 
additional development. It is our intent to avoid developed areas 
because they lack any PCEs in this designation. We have, therefore, not 
included these areas in critical habitat (see description of Central 
Coast Region, Unit 2).
    The two percent development allowance within the NRMA would allow 
for up to two percent of areas with natural vegetation to be converted 
to buildings or other development-oriented uses, such as public access, 
grazing, police and fire training, and education and research. However, 
specific development plans do not exist. We cannot determine the 
effects of excluding unknown development location(s) and, therefore, we 
are not excluding them from critical habitat.
    When determining critical habitat boundaries, we made every effort 
to avoid proposing the designation of developed areas such as 
buildings, paved areas, boat ramps, and other structures that lack PCEs 
for the Central population of the CTS. Any such structures 
inadvertently left inside proposed critical habitat boundaries are not 
considered part of the proposed unit. This also applies to the land on 
which such structures sit directly. Therefore, Federal actions limited 
to these areas would not trigger section 7 consultations, unless they 
affect the species and/or PCEs in adjacent critical habitat.

Issue 2: Habitat and Species Specific Information

    Comment: Habitat/species are not present on some selected lands 
that have been proposed to be designated as critical habitat.
    Our Response: We believe that we used the best scientific and 
commercial information available in determining those areas essential 
for the CTS proposed critical habitat designation. We revised the 
proposed designation based on information received during the comment 
periods and have adjusted the designation accordingly. In this final 
designation, we used additional available information, such as detailed 
aerial imagery, to refine and map critical habitat (please refer to the 
Criteria Used to Identify Critical Habitat section). The areas 
designated as final critical habitat are occupied and have habitat 
features that are essential for the conservation of the species. Even 
though an area may be mapped as critical habitat, individual 
salamanders may or may not be present on any one parcel at all times 
because some lands may function solely as dispersal habitat for the 
species and individual salamanders would only be found on those lands 
during migration.
    Comment: The Service has not clearly established that the proposed 
critical habitat areas are essential to the conservation of the CTS nor 
provided an explanation of why some other occupied areas are not 
essential. Also, the descriptions of the PCEs do not explain the basis 
of what is essential to species conservation.
    Our Response: To provide for the long term conservation of the 
species, we identified those features essential to the conservation of 
the species (see Primary Constituent Elements section). The criteria 
used to designate critical habitat units is consistent with the 
following five conservation principles: (1) Maintaining the current 
genetic structure across the species range; (2) maintaining the current 
geographic, elevational, and ecological distribution; (3) protecting 
the hydrology and water quality of breeding pools and ponds; (4) 
retaining or providing for connectivity between breeding locations for 
genetic exchange and recolonization; and (5) protecting sufficient 
barrier-free upland habitat around each breeding location to allow for 
sufficient survival and recruitment to maintain a breeding population 
over the long term. We excluded any areas that do not contain one or 
more of the PCEs or that were determined not to be essential for the 
conservation of the species because: (1) The area is highly degraded 
and may not be restorable; (2) the area is small, highly fragmented, or 
isolated and may provide little or no long term conservation value; and 
(3) other areas within the geographic region were determined to be 
sufficient to meet the species needs for conservation.
    Comment: One commenter stated that critical habitat for the species 
is not prudent and determinable.
    Our Response: According to our regulations at 50 CFR 424.12, a 
designation of critical habitat is not prudent when one or both or the 
following situations exist: (1) The species is threatened by taking or 
other human activity and identification of critical habitat can be 
expected to increase the degree of such threat to the species, or (2) 
such designation of critical habitat would not be beneficial to the 
species. In the final rule listing the Central population of the CTS as 
threatened (August 4, 2004; 69 FR 47212), we found that a designation 
of critical habitat was prudent and subsequently published a proposed 
rule to designate critical habitat on August 10, 2004 (69 FR 48570). We 
did not find any information indicating that designating critical 
habitat would increase risk to this species and the large body of 
scientific information available on the California tiger salamander 
provides a sufficient basis for us to define PCEs and designate 
critical habitat. Our reasoning is discussed in the final listing rule, 
and we believe this rationale is still applicable.
    Comment: Several comments stated that we have not conducted surveys 
across most of the range of the species and haven't established what is 
critical habitat for the species. Several commenters asserted that we 
lack site-specific information (presence) across the range of the 
species, and more studies are needed to determine critical habitat for 
the species. One commenter requested that we postpone designating 
critical habitat until site-specific surveys are completed over the 
range of the species.
    Our Response: We acknowledge that rangewide surveys over all areas 
that the species may be distributed have not been conducted. 
Nonetheless, we feel that we have sufficient peer-reviewed scientific 
and commercial data regarding the range, distribution, biology, and 
ecology of the Central population of the CTS to designate critical 
habitat. Given the large body of existing CTS scientific and commercial 
data, we feel that additional site-specific data is not necessary to 
designate critical habitat for the Central population of the CTS. We 
have used the best scientific and commercial data

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that is available to determine what habitat features are essential for 
the conservation of this species. We feel that additional surveys at 
this time across the range of this species would be of little 
assistance in developing an improved understanding of the PCEs for this 
species.

    Comment: One commenter stated that critical habitat is not needed 
to stop development because most CTS habitat is not threatened by 
development in the foreseeable future.
    Our Response: The purpose of designating critical habitat is not to 
stop development, but to provide for the conservation of the species. 
The listing rule states that the species is threatened by development 
in the foreseeable future by a variety of factors including habitat 
destruction, degradation, and fragmentation due to urban development 
and conversion to intensive agriculture, hybridization with nonnative 
salamanders, inadequate regulatory mechanisms, nonnative predators, and 
pesticide drift, and CTS continues to be threatened by these factors.
    Comment: One commenter stated that the species is already protected 
enough by private and Federal programs. A total of 15 percent of all 
extant occurrences (96 breeding locations) and 3,326,807 acres of 
habitat are protected by the Williamson Act or Food Security Zones.
    Our Response: A critical habitat designation means that Federal 
agencies are required to consult with the Service on the impacts of 
actions they undertake, fund, or permit on designated critical habitat. 
While in many cases, these requirements may not provide substantial 
additional protection for most species, they do direct the Service to 
consider specifically whether a proposed action will affect the 
functionality of essential habitat to serve its intended conservation 
role for a species rather than to focus exclusively on whether the 
action is likely to jeopardize the species' continued existence. We 
agree, however, that even absent a critical habitat designation, 
Federal agencies are still required to consult on the impacts of their 
activities on listed species and their habitat.
    Fifteen percent of CTS breeding locations is an insufficient amount 
of protected habitat for the conservation of the species, especially 
when more than the breeding ponds themselves need protection in order 
to conserve the species. To ensure the long term conservation of the 
species, we identified those features essential to the conservation of 
the species (see Primary Constituent Element section). The criteria we 
used to designate critical habitat units is consistent with the five-
pronged approach identified earlier.
    The California Land and Conservation Act, more commonly known as 
the Williamson Act, has been an agricultural land protection program 
since its enactment in 1965. In 1998, the California Legislature 
enhanced the Williamson Act with farmland security zone provisions. The 
Williamson Act is a voluntary program that offers tax incentives in 
exchange for voluntary restrictive land uses for agricultural and 
compatible open space uses under a minimum 10-year rolling contract 
with local governments. The food security zone provisions offer a tax 
reduction for a 20-year minimum rolling contract term. These contracted 
areas may offer some limited protection from habitat destruction. 
However, these contracts do not significantly provide for long term 
conservation of the species, as they may not be renewed by the property 
owner upon expiration and they can be canceled prior to the end of the 
contract term, based upon board approval and payment of a cancellation 
fee.
    Comment: One commenter stated that critical habitat is not 
warranted because the species is extant across its historical range and 
half the range remains suitable.
    Our Response: The term, ``not warranted,'' applies to a petition to 
list the species as threatened or endangered and is a result that is 
possible for a petition finding. We do not have a ``not warranted'' 
option for a critical habitat designation. Although we agree that 
salamanders can still be found across their historical range and 
habitat remains suitable, the species continues to be threatened by 
destruction, fragmentation, and degradation of wetland and associated 
upland habitats due to urban development, conversion of habitats to 
intensive agriculture, predation by nonnative species, disease, 
agricultural and landscape contaminants, rodent and mosquito control, 
and hybridization with nonnative tiger salamanders now and in the 
foreseeable future.

Issue 3: Unit Designations

    Comment: One commenter stated that the units need to be connected.
    Our Response: We disagree that all critical habitat units need to 
be connected. We determined that the conservation of the species would 
be best served if the PCEs include dispersal habitat for CTS to meet 
the animal's requisite biological needs. For the proposed critical 
habitat designation, we developed a specific strategy for determining 
which areas would be considered critical habitat. Part of that strategy 
was to connect separated CTS records based on the known dispersal 
capabilities and continuous habitat between occurrences and/or breeding 
locations. Connecting large areas of unknown occupancy which may or may 
not support CTS, or the PCEs, would not materially contribute to the 
conservation of the species. For more information, please see the 
Criteria and Methodology sections.

    Comment: Several commenters stated that the unit descriptions are 
incomplete and, in some cases, inaccurate.
    Our Response: In response to information provided during the two 
public comment periods and the information received during the public 
meeting and workshops, we made corrections to two of the proposed 
critical habitat unit descriptions. We feel that we have provided 
sufficient information for the public to generally understand the 
location of each unit and are ready to assist individuals with any 
additional information requests on the locations of the critical 
habitat units. For further information on this designation and specific 
units, please contact the Sacramento Fish and Wildlife Office (see 
ADDRESSES section above).
    Comment: One commenter stated that the PCE descriptions are 
unclear.
    Our Response: In accordance with section 3(5)(A)(i) of the Act and 
regulations at 50 CFR 424.12, in determining which areas to propose as 
critical habitat, we are required to base critical habitat 
determinations on the best scientific and commercial data available and 
to consider those physical and biological features, the PCEs, that are 
essential to the conservation of the species and that may require 
special management considerations and protection. These include, but 
are not limited to: Space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species. 
The comment letter did not specify what was unclear about the PCEs 
described in the proposed rule. For a full description of each of the 
PCEs, please refer to the Primary Constituent Element section below.

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Issue 4: Social and Economic Costs/Regulatory Burden

    Comment: Several commenters asserted that critical habitat results 
in an increased regulatory burden, increased landowner costs, and 
restricts land uses and property rights.
    Our Response: The economic analysis identifies the costs which 
accrue as a result of the designation. These costs will be incurred 
when a Federal approval or permit is required, or Federal funds are 
involved with a project proposed on private property, the critical 
habitat designation poses no regulatory burden for private landowners, 
and in particular, should not affect farming and ranching activities on 
private lands. Routine ranching activities are also exempt from take 
under the 4(d) rule at 50 CFR 17.43(c).
    While the designation of critical habitat does not itself result in 
the regulation of non-federal actions on private lands, the listing of 
the Central population of California tiger salamander under the 
Endangered Species Act may affect private landowner's actions. Actions 
which could result in take of California tiger salamanders (e.g., 
ground disturbing activities such as soil compaction or soil 
remediation activities) require authorization for take following 
consultation under Section 7 or an incidental take permit under section 
10 of the Act. Because the Central population of CTS has been listed 
since 2004, proposed actions on private lands that require Federal 
authorization or funding that may affect the listed entity already 
undergo consultation under Section 7 to ensure that their actions are 
not likely to jeopardize the continued existence of the species. Future 
consultations involving private lands will also analyze the effect of 
the proposed action on designated critical habitat when a Federal nexus 
exists.
    Comment: One commenter stated that all critical habitat lands, not 
just habitat, are now subject to Service jurisdiction.
    Our Response: Federal agencies have the responsibility to consult 
with us if a Federal action may affect a federally-listed species even 
absent critical habitat designation for that species. This requirement 
exists for all lands. We also determine whether a proposed project will 
adversely modify or destroy any designated critical habitat. Private 
individuals also share the same responsibility but may need to seek 
authorization for incidental take under section 10 of the Act.
    Comment: One commenter stated that critical habitat designation 
burdens landowners with determining if their lands have PCEs and that 
the costs of determining PCEs on private lands should be undertaken by 
the Service. Other commenters stated that the designation of critical 
habitat means that regulatory agencies will oversee agricultural and 
ranching practices, that critical habitat will impact housing 
development by delaying the development process and thereby increase 
costs, and that the designation of critical habitat will increase 
delays in permit processing.
    Our Response: Designation of critical habitat in areas occupied by 
the species does not necessarily result in a regulatory burden above 
that already in place due to the presence of the listed species. The 
Service will work with private landowners to identify activities and 
modifications to activities that will not result in take, to develop 
measures to minimize the potential for take, and to provide 
authorizations for take through sections 7 and 10 of the Act. One 
intention of critical habitat is to inform people of areas that contain 
the features that are essential for the conservation of the species. We 
encourage landowners to work in partnership with us to develop plans 
that allow their land management and development practices to proceed 
in a manner consistent with the conservation of listed species. The 
California tiger salamander is already a federally-listed species, and 
as such, development projects that may result in take of the species 
are already required to consult with the Service under Section 7 or 
Section 10 of the Act. Assuming a federal nexus exists, designation of 
CH will not cause any additional delays to housing developments due to 
consultation requirements.
    Comment: A commenter stated that sections 7 and 10 of the Act 
already sufficiently protect the species. Another commenter stated that 
the U.S. Army Corps of Engineers (Corps) already has jurisdiction over 
vernal pools that are used as CTS breeding ponds, so the Clean Water 
Act (CWA) already protects the species and its habitat.
    Our Response: Sections 7 and 10 of the Act function to ensure 
activities that result in incidental take, or that may adversely affect 
the species, will not jeopardize the existence of the species, while 
the larger role of critical habitat functions to conserve the species. 
The Act requires Federal agencies to consult with us on actions they 
undertake, fund, or permit on designated critical habitat to ensure 
that those actions do not adversely modify the designated critical 
habitat. Although these requirements may not provide substantial 
additional protection for many species, they direct the Service to 
consider whether or not a proposed action would affect the 
functionality of critical habitat to serve its intended conservation 
role for a species rather than to focus exclusively on whether or not 
the proposed action would be likely to jeopardize the species' 
continued existence. We agree that even absent a critical habitat 
designation, Federal agencies are still required to consult on the 
effects of their activities on listed species. Finally, the Corps may 
take jurisdiction over some of the aquatic breeding habitat of the CTS, 
such as some vernal pools. However, not all CTS breeding habitat occurs 
on Corps jurisdictional wetlands. Additionally, the CTS is a 
terrestrial species that spends most of its adult life in the 
surrounding uplands that are generally not under the jurisdiction of 
the Corps. Therefore, we conclude that regulation of the discharge of 
fill into waters of the United States by the Corps under Section 404 of 
the CWA is inadequate to protect the Central population of CTS and its 
habitat.
    Comment: Many commenters claimed the Service violated the 
Administrative Procedure Act and the Act because we should have 
prepared an economic analysis first and then proposed critical habitat.
    Our Response: Pursuant to the Act, and clarified in our 
implementing regulations at 50 CFR 424.19, we are required to, ``after 
proposing designation of [a critical habitat] area, consider the 
probable economic and other impacts of the designation upon proposed or 
ongoing activities.'' The purpose of the draft economic analysis is to 
determine and evaluate the potential economic effects of the proposed 
designation. In order to develop an economic analysis of the effects of 
designating critical habitat, we need to have identified an initial 
proposal for the designation of critical habitat. Following the 
publication of our proposed designation of critical habitat for the 
CTS, we developed a draft economic analysis of the proposed designation 
that was released for public review and comment. The public was allowed 
60 days to comment on the proposed designation and an additional 17 
days to comment on both the draft economic analysis and proposed 
designation.

Issue 5: Notification and Comment Period Comments

    Comment: Several commenters stated that all private landowners were 
not notified about the proposed designation of critical habitat, that 
additional public

[[Page 49385]]

meetings are needed, and that the public was not given enough 
opportunity to comment because the draft economic analysis was not 
published at the same time or before the proposed rule to designate 
critical habitat. Another commenter stated that the Service admits that 
the proposed critical habitat was made without sufficient public 
participation and without sufficient scientific rigor and review, so 
the rule should be withdrawn until evidence is presented regarding 
species conservation requirements.
    Our Response: The proposed critical habitat designation was 
published in the Federal Register on August 10, 2004 (69 FR 48570), and 
we accepted comments from all interested parties for a 60-day comment 
period, until October 12, 2004. On July 18, 2005, we reopened the 
comment period for 17 days and made available the draft economic 
analysis (70 FR 41183). We held five public workshops to provide 
information on the CTS, and at those workshops, we discussed 
opportunities for the public to comment and provide input and 
information. We solicited comments from peer reviewers on the proposed 
critical habitat designation for the CTS. We received general support 
from experts in the fields of ecology, conservation, genetics, 
taxonomy, and management reviewers of the proposed rule. In addition, 
we are required to base critical habitat designations on the best 
available scientific and commercial data available to us, to consider 
those physical and biological features that are essential to the 
conservation of the species, and to consider whether such areas may 
require special management considerations and protection. Our 
definition and explanation of the PCEs was peer reviewed and the 
results of the review did not indicate that our definition or 
description of the PCEs was lacking. Additionally, we have revised our 
PCEs to more accurately and/or precisely identify those physical and 
biological features essential to the species.
    Comment: The Service should draft a recovery plan for the species 
before critical habitat is proposed to be designated.
    Our Response: Section 4 of the Act requires us to designate 
critical habitat at the time of listing to the maximum extent prudent 
and determinable. While we agree that a recovery plan is a useful tool 
to assist us with determining which areas contain the habitat features 
that are essential for the conservation of a species, we are unable to 
postpone the final designation pending completion of a recovery plan.

Issue 6: Property Rights

    Comment: The proposed critical habitat designation decreases land 
values.
    Our Response: We have finalized our draft economic analysis of the 
impact of critical habitat designation by incorporating all substantive 
comments received during the public comment periods (See Economic 
Analysis section).
    Comment: The Service needs to provide more information on which 
agricultural practices are allowable, and when consultation with us 
would be necessary owing to crop changes.
    Our Response: Some farming practices benefit salamanders while 
other practices may adversely affect salamanders. For example, drawing 
down pond water for frost protection can conflict with CTS biological 
needs; however, creating additional new ponds may benefit CTS if the 
ponds stay inundated long enough during the period of juvenile 
metamorphosis (approximately 12 weeks), with active, regular control of 
nonnative species. Activities carried out, funded, or authorized by a 
Federal agency (i.e., activities with a Federal nexus) require 
consultation pursuant to section 7 of the Act if they may affect a 
federally listed species and/or its designated critical habitat. Our 
experience with consultations on CTS is that few agricultural 
activities have involved a Federal nexus and thus have not required a 
consultation under section 7 of the Act. In regard to grazing, we do 
not foresee any change in the ability of private landowners to graze 
their property as a result of this designation due to the establishment 
of the special 4(d) rule at 50 CFR 17.43(c). In addition, we anticipate 
that many activities, including grazing, presently occurring in areas 
designated as critical habitat can be managed to be compatible with the 
needs of CTS and its habitat. We addressed many agricultural issues 
during the public workshops and hearings that we held during the 
process of listing the species. Any interested parties are welcome to 
write us or call us (see ADDRESSES section) during regular business 
hours to have us answer specific questions regarding agricultural 
practices as they relate to CTS conservation.
    Comment: The Service should compensate private landowners for 
taking because critical habitat is designated.
    Our Response: The designation of critical habitat does not mean 
that private lands would be taken by the Federal government or 
reasonable uses would not be allowed. We believe that, in accordance 
with Executive Order 12630, this designation of critical habitat for 
the CTS will not have significant takings implications. We determined 
that: (1) The designation would result in little additional regulatory 
burden above that currently in place due to the species being federally 
listed because the majority of the designation is occupied by the 
species, and (2) the designation of critical habitat will not affect 
private lands in which there is not a Federal nexus. We do not 
anticipate that property values, rights or ownership will be 
significantly affected by the critical habitat designation.

Issue 7: Mapping

    Comment: Several commenters stated that the proposed designation of 
critical habitat goes overboard, includes ``all geographic area,'' is 
poorly defined, and should exclude nonhabitat areas from the 
designation of critical habitat. Other commenters stated that the 
Service made errors in mapping open spaces and developed areas as 
critical habitat and that we used political boundaries as a basis for 
critical habitat units.
    Our Response: Of the estimated 936,204 ac (378,882 ha) of 
California tiger salamander habitat, we have designated 199,109 ac 
(80,576 ha). In our designation, we did not designate all the areas 
where California tiger salamander are found, but instead focused on 
areas where there are high concentrations of known occurrences and the 
habitat is likely to persist in the future. In this designation, not 
all geographic areas are critical habitat if those areas do not possess 
any the PCEs as we identified in the proposed rule and this final rule. 
We feel that we have clearly defined and described the three PCEs. All 
designated critical habitat is occupied and contains at least one of 
the three PCEs. Based on the clear PCE definitions, we believe that 
landowners can identify the areas that contain the PCEs. We stated in 
the proposed and final rules that areas that do not have PCEs are not 
considered to be critical habitat, including roads, buildings, paved 
areas, etc.
    Comment: The Service used poor data and needs to do a better job 
mapping areas that do not contain PCEs, such as buildings, roads, 
parking lots. These mapping errors and inaccuracies need to be 
corrected, and the Service should better describe which areas are and 
are not critical habitat.
    Our Response: In the proposed rule and this final rule, we used the 
best scientific and commercial data available to develop critical 
habitat for the species

[[Page 49386]]

and took into account the many comments that we received in developing 
the final rule. We stated in the proposed rule and again in this final 
rule that we could not map critical habitat in sufficient detail to 
exclude each and every developed area or other areas that are unlikely 
to contain the PCEs. However, when determining critical habitat 
boundaries, we made every effort to avoid designating developed areas 
such as buildings, paved areas, boat ramps, and other structures that 
lack PCEs for the Central population of the California tiger 
salamander. Any such structures inadvertently left inside proposed 
critical habitat boundaries are not considered part of the unit. This 
also applies to the land on which such structures sit directly. 
Therefore, Federal actions limited to these areas would not trigger 
section 7 consultations, unless they affect the species and/or primary 
constituent elements in adjacent critical habitat.
    Comment: A number of commenters identified specific areas that they 
thought should not be designated as critical habitat.
    Our Response: Where site-specific documentation was submitted to us 
providing a rationale as to why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat pursuant to section 3(5)(A) of the Act 
and the provisions of section 4(b)(2) of the Act. We evaluated the 
parcels to determine whether or not modifications to the proposal were 
warranted. We further examined the proposed critical habitat areas and 
refined the boundaries to exclude those areas that did not, or were not 
likely to, contain the PCEs for the species, wherever technically 
feasible. Please refer to the Summary of Changes from the Proposed Rule 
section for a more detailed discussion.
    Comment: The Service violated the Act by not narrowly defining 
critical habitat.
    Our Response: We believe that we have followed the Congressional 
intent of the Act by designating critical habitat to the maximum extent 
prudent and determinable for California tiger salamander based on the 
best scientific and commercial data available. We are required to 
identify critical habitat ``by specific limits using reference points 
and lines as found on standard topographic maps of the area'' (50 CFR 
424.12(c)). We have delineated the boundaries of the critical habitat 
units in this rule based on the best scientific and commercial data 
available. The scale at which we mapped the extent of critical habitat 
was based on the availability and accuracy of aerial photography and 
GIS data layers used to develop the designation. In drawing our lines 
for the proposed rule, we attempted to exclude areas that do not 
contain essential occurrences of the species and habitat as defined by 
the PCEs. On the basis of information obtained through public comments 
and updated imagery and GIS data layers, we have been able to refine 
the boundaries of critical habitat during the development of this final 
rule. However, due to the limitations of our mapping scale, we were not 
able to exclude all areas that do not contain the PCEs. We have 
determined that existing manmade features and structures, such as 
buildings, roads, railroads, airports, runways, other paved areas, 
lawns, and other urban landscaped areas are not likely to contain one 
or more of the PCEs. Because activities in these areas are unlikely to 
affect PCEs (i.e., critical habitat for the species), a consultation 
under section 7 of the Act would not be required.
    Comment: The proposed designation should be withdrawn until the 
consequences of the Gifford Pinchot court decision are appropriately 
codified, after the Service conducts a formal rulemaking process.
    Our Response: We are under an order to designate critical habitat. 
The Director has issued guidance for the evaluation of critical habitat 
effects when the Service consults which is based on the language of the 
statute.
    Comment: The Service lacks evidence for the scale and extent of 
what is essential for the conservation of the species.
    Our Response: To ensure the long term conservation of the species, 
we identified those features essential to the conservation of the 
species (see Primary Constituent Element section). The criteria used to 
designate critical habitat units is consistent with the following five 
conservation principles: (1) Maintaining the current genetic structure 
across the species range; (2) maintaining the current geographic, 
elevational, and ecological distribution; (3) protecting the hydrology 
and water quality of breeding pools and ponds; (4) retaining or 
providing for connectivity between breeding locations for genetic 
exchange and recolonization; and (5) protecting sufficient barrier-free 
upland habitat around each breeding location to allow for sufficient 
survival and recruitment to maintain a breeding population over the 
long term. We excluded areas that do not contain one or more of the 
PCEs or did not contain the habitat features essential for the 
conservation of the species because: (1) The area is highly degraded 
and may not be restorable; (2) the area is small, highly fragmented, or 
isolated and may provide little or no long term conservation value; and 
(3) other areas within the geographic region were determined to be 
sufficient to meet the species needs for conservation. The Act directs 
us to identify specific areas, both occupied and unoccupied by a listed 
species, that have the features essential to the conservation of the 
species and that may require special management. Using the best 
available scientific and commercial information, we have determined 
those areas that would best conserve the species in the long term. 
Those areas are described in terms of PCEs and habitat features and are 
provided in this final rule.
    Comment: The primary constituent elements are arbitrary, overly 
broad, and do not provide for defensible critical habitat boundaries.
    Our Response: We have determined the habitat features (PCEs) to be 
essential for the conservation of the species. To ensure the long term 
conservation of the species, we identified those features essential to 
the conservation of the species (see Primary Constituent Elements 
section). The criteria used to designate critical habitat units is 
consistent with the following five conservation principles: (1) 
Maintaining the current genetic structure across the species range; (2) 
maintaining the current geographic, elevational, and ecological 
distribution; (3) protecting the hydrology and water quality of 
breeding pools and ponds; (4) retaining or providing for connectivity 
between breeding locations for genetic exchange and recolonization; and 
(5) protecting sufficient barrier-free upland habitat around each 
breeding location to allow for sufficient survival and recruitment to 
maintain a breeding population over the long term. We did not designate 
areas that did not contain one or more of the PCEs or that were not 
essential for the conservation of the species because: (1) The area is 
highly degraded and may not be restorable; (2) the area is small, 
highly fragmented, or isolated and may provide little or no long term 
conservation value; and (3) other areas within the geographic region 
were determined to be sufficient to meet the species needs for 
conservation.
    Comment: The Service failed to demonstrate that special management 
considerations are needed to justify a critical habitat designation.
    Our Response: Critical habitat is defined in section 3(5)(A) of the 
Act as: (i) the specific areas within the geographic area occupied by 
the species,

[[Page 49387]]

at the time it is listed in accordance with the Act, on which are found 
those physical or biological features that are (I) essential to the 
conservation of the species and (II) that may require special 
management considerations or protections; and (ii) specific areas 
outside the geographic area occupied by a species at the time it is 
listed, upon determination that such areas are essential to the 
conservation of the species. In our determination of critical habitat 
for CTS, we have identified those areas of occupied habitat that 
contain those features essential to the conservation of the species. 
Areas that may require special management or protection have also been 
identified (see Critical Habitat Designation section below).

Issue 8: 4(d) Rule

    Comment: The 4(d) rule should include public lands like East Bay 
Regional Park District, not just private lands.
    Our Response: The final rule listing the CTS as threatened (69 FR 
47212) finalized the 4(d) rule for the species rangewide, which exempts 
existing routine ranching activities. Under the 4(d) rule, take of the 
threatened Central population of CTS caused by existing routine 
ranching activities on private or Tribal lands for activities that do 
not have a Federal nexus would be exempt from section 9 of the Act. 
Federal agencies have the responsibility to consult with the Service if 
a Federal action may affect a federally-listed species because of their 
section 7 responsibilities under the Act.

Issue 9: State Comments

    We received one comment from the State of California during the 
initial comment period. We did not receive any additional State 
comments during the second comment period, which opened on July 18, 
2005 (70 FR 41183).
    State Comment: The California Department of Transportation provided 
information regarding labeling errors on the Federal Register map for 
Unit 4 of the Central Coast Region.
    Our Response: We have revised the Federal Register maps to reflect 
changes in the labeling.

Economic Analysis

    Comment: Critical habitat will increase transaction costs, slow 
sales, and reduce rental and developmental incomes.
    Our Response: To the extent that they are documented, the economic 
analysis captures costs related to the designation including those 
enumerated by the commenter.
    Comment: The proposed rule to designate critical habitat for CTS 
violates Executive Order 13211. Specifically, the Service needs to 
exclude energy producing lands or prepare a Statement of Energy Effects 
and include those effects in the EA and discuss benefits and costs to 
the species and energy production.
    Our Response: The draft economic analysis considers potential 
impacts on the energy section. This analysis examines planned power 
production facilities within the study area for proximity to proposed 
critical habitat. It finds the sites fall into one of two categories: 
either they are too far from critical habitat to be affected, or are 
within or near habitat but have already completed the environmental 
mitigation process. In both cases, the incremental impacts of 
designation are zero; the regulation is not expected to impact energy 
production. This final rule to designate critical habitat for the 
Central population of the CTS is not expected to significantly affect 
energy supplies, distribution, or use. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required. For more details, please see the draft economic analysis, 
section ``V.2 Economic Impacts on the Energy Industry.''
    Comment: Several comments stated that the DEA underestimated the 
delay in project completion resulting from Section 7 consultation.
    Our Response: Delay times resulting from Section 7 consultation 
were calculated based on a review of available Biological Opinions. 
Delay time was calculated based on the average number of days from 
submission of a completed application to the date of a final decision.
    Comment: Several comments stated that mitigation costs in Alameda, 
Contra Costa and Fresno Counties are higher than the figure used in the 
DEA.
    Our Response: Mitigation costs were derived from a survey of 
mitigation banks, developers and consultants familiar with the 
permitting process. We believe that these data represent the best 
available information on mitigation costs in affected counties.

    Comment: Several comments stated that the avoidance and mitigation 
requirements and mitigation costs used in the DEA are inconsistent with 
the recent Gifford Pinchot decision.
    Our Response: Avoidance and mitigation requirements and mitigations 
costs used in the DEA were based on interviews with those familiar with 
the permitting process as well as a comprehensive examination of the 
Service's consultation history. The Ninth Circuit has recently ruled 
(``Gifford Pinchot'', 378 F.3d at 1071) that the Service's regulations 
defining ``adverse modification'' of critical habitat are invalid. As a 
result, there is some uncertainty involved in considering the costs due 
to the fact that the consequences of designation are more difficult to 
predict as Service cannot rely on decades of factual information based 
on prior experience.
    Comment: One comment stated that the DEA failed to provide a 
balanced assessment of economic benefits and costs in relation to the 
proposed critical habitat designation. The commenter also included a 
general list of potential benefits that may be associated with the 
designation of critical habitat and suggested that the Service should 
include such effects in its economic analysis.
    Our Response: Section 4(b)(2) of the Act requires the Secretary to 
designate critical habitat based on the best scientific data available 
after taking into consideration the economic impact, and any other 
relevant impact, of specifying any particular area as critical habitat. 
The Service's approach for estimating economic impacts includes both 
economic efficiency and distributional effects. The measurement of 
economic efficiency is based on the concept of opportunity costs, which 
reflect the value of goods and services foregone in order to comply 
with the effects of the designation (e.g., lost economic opportunity 
associated with restrictions on land use). Where data are available, 
the economic analyses do attempt to measure the net economic impact. 
However, no data was found that would allow for the measurement of such 
an impact, nor was such information submitted during the public comment 
period.
    Most of the other benefit categories submitted by the commenter 
reflect broader social values, which are not the same as economic 
impacts. While the Secretary must consider economic and other relevant 
impacts as part of the final decision-making process under section 
4(b)(2) of the Act, the Act explicitly states that it is the 
government's policy to conserve all threatened and endangered species 
and the ecosystems upon which they depend. Thus the Service believes 
that explicit consideration of broader social values for the species 
and its habitat, beyond the more traditionally defined economic 
impacts, is not necessary as Congress has already clarified the social 
importance.
    The Service notes that as a practical matter, the difficulty in 
being able to

[[Page 49388]]

develop credible estimates of such values as they are not readily 
observed through typical market transactions and can only be inferred 
through advanced, tailor-made studies that are time consuming and 
expensive to conduct. The Service currently lacks both the budget and 
time needed to conduct such research before meeting our court-ordered 
final rule deadline. In sum, the Service believes that society places 
the utmost value on conserving any and all threatened and endangered 
species and the habitats upon which they depend and thus needs only to 
consider whether the economic impacts (both positive and negative) are 
significant enough to merit exclusion of any particular area without 
causing the species to go extinct.
    Comment: Several comments noted that demographic projections used 
in the DEA are inconsistent with certain development projects that are 
either planned or under construction.
    Our Response: The projections used in the analysis are believed by 
CRA to be the best available. In some cases, they may overlook large, 
individual development projects which are difficult to forecast. Where 
such projects stand a reasonably foreseeable chance of being built, the 
FEA has been modified to reflect their presence. Additionally, the FEA 
incorporates up-to-date projections from the Association of Bay Area 
Governments which were not available upon publication of the DEA.
    Comment: Several comments asked that results be presented at a 
finer level of detail than the census tract.
    Our Response: The census tract is the smallest level of 
geographical distinction for which data are readily available and 
credible results can be obtained. Finer levels of detail give a false 
sense of precision which is not supported by the data or model.
    Comment: Several comments stated that the DEA did not adequately 
consider impacts on agricultural landowners.
    Our Response: The DEA calculates impacts on land values according 
to the impact of critical habitat on the likelihood and profitability 
of urban development.
    Comment: One comment stated that the analysis only considered Phase 
I of the SMUD Cosumnes power plant expansion, while ignoring the 
effects of Phase II.
    Our Response: The Phase I and Phase II of the Cosumnes power plant 
have been removed from the designation based the PCEs not being present 
and the area not meeting our criteria for designation (see ``Criteria 
Used To Identify Critical Habitat'').
    Comment: A commenter has asserted that there may be a conflict of 
interest, because we have contracted with Dr. David Sunding and CRA 
International to develop the economic analysis of this designation of 
critical habitat for the Central population of the CTS because he 
previously conducted a study of critical habitat economics funded by 
the building industry and other commercial interests. The commenter 
suggests that the use of an economic model originally developed in the 
course of this study is inappropriate.
    Our Response: We do not believe that hiring Dr. David Sunding and 
CRA International to conduct the economic impact analysis of this 
critical habitat designation, considering his prior receipt of research 
funding from the building industry, establishes a conflict of interest. 
CRA International performed a conflict check prior to initiating work 
on the current study and no conflicts were discovered. Neither CRA nor 
Dr. Sunding holds any financial interests that would be benefited as an 
outcome of the analysis and subsequent critical habitat designation.

Summary of Changes From Proposed Rule

    In preparing the final critical habitat designation for the Central 
population of the CTS, we reviewed comments received on the proposed 
designation. In addition to minor clarifications in the text pertaining 
to the geographic regions, we made changes to our proposed designation, 
as follows:
    (1) We revised the proposed critical habitat units based on 
comments and biological information received during the public comment 
periods.
    (2) Under section 4(a)(3) of the Act, we did not designate DOD 
lands that have approved INRMPs in place which benefit the species. 
Under sections 3(5)(a) and 4(b)(2) of the Act, we excluded properties 
with adequate management plans that cover the CTS and its habitat. For 
more information, refer to ``Application of Section 3(5)(A) and 4(a)(3) 
and Exclusions Under Section 4(b)(2) of the Act'' below.
    (3) We adjusted the boundaries of the proposed units as feasible to 
remove areas that do not contain the primary constituent elements or 
were included in the pr