Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Brodiaea filifolia, 73820-73863 [05-23693]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 238 (Tuesday, December 13, 2005)]
[Rules and Regulations]
[Pages 73820-73863]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-23693]



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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 Brodiaea filifolia (thread-leaved brodiaea); Final Rule

Federal Register / Vol. 70, No. 238 / Tuesday, December 13, 2005 / 
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT75


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Brodiaea filifolia (thread-leaved brodiaea)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the Fish and Wildlife Service (Service), are designating 
critical habitat for the federally threatened Brodiaea filifolia 
(thread-leaved brodiaea) pursuant to the Endangered Species Act of 
1973, as amended (Act). In total, approximately 597 acres (ac) (242 
hectares (ha)) fall within the boundaries of the critical habitat 
designation. The critical habitat is located in Los Angeles and San 
Diego counties, California. Lands in Orange, Riverside, and San Diego 
counties that are covered by approved and draft habitat conservation 
plans are excluded under section 4(b)(2). Lands owned or controlled by 
the Department of Defense that are covered by an Integrated Natural 
Resource Management Plan (INRMP) that provides a benefit to the species 
are exempt from critical habitat under section 4(a)(3) of the Act. As a 
result of revisions based on peer and public comments and a re-
evaluation of methodology and mapping, approximately 4,093 ac (1,656 
ha) in Los Angeles, San Bernardino, Orange, and San Diego counties 
proposed as critical habitat were removed or excluded from this final 
designation. Lands designated as critical habitat are under Federal and 
private ownership. No Tribal lands are included in this critical 
habitat designation.

DATES: This rule becomes effective on January 12, 2006.

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, are available 
for public inspection, by appointment, during normal business hours, at 
the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, 
Carlsbad, CA 92011 (telephone 760-431-9440). The final rule, a list of 
references cited, the economic analysis, and maps will also be 
available on the Internet at https://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office, at the above address (telephone 760-431-9440; 
facsimile 760-431-9624).

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 470 species or 37.5 
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 for the 
conservation of 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 has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the Ninth Circuit's ruling and the Director's guidance.

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 
the 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

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earlier, and they directly reduce the funds available for direct and 
tangible conservation actions.

Background

    By 1998, when the species was listed, at least 25 percent of the 
known Brodiaea filifolia populations or occurrences had been eliminated 
by urbanization and agricultural conversion (63 FR 54975, October 13, 
1998). Urban development continues to be a threat to this species. 
Habitat for the species is also threatened by off-road vehicle use; 
non-agricultural grading and disking for weed control; clearing for 
firebreaks; alteration of existing hydrologic conditions resulting from 
construction and operation of flood control structures; over-grazing; 
and competition from non-native plant species (USFWS 1998, RECON 1999, 
CNDDB 2005). Occurrences of B. filifolia in Orange County and some in 
San Diego County are threatened by the perennial Cynara cardunculus 
(artichoke thistle or cardoon) (CNDDB 2005). B. filifolia and its 
habitat are also threatened by dumping of manure and sewage sludge on 
occupied habitat along the San Jacinto River in western Riverside 
County (Roberts in litt. 2005). This material can alter the soil 
chemistry and lead to changes in the vegetation sustainable on the 
sites.

Previous Federal Actions

    For more information on previous Federal actions concerning 
Brodiaea filifolia, refer to the final rule listing the species as 
threatened, published in the Federal Register on October 13, 1998 (63 
FR 54975), and the proposed critical habitat designation published in 
the Federal Register on December 8, 2004 (69 FR 71284). A recovery plan 
for B. filifolia has not yet been completed. The following text 
discusses Federal actions that occurred subsequent to the listing.
    On November 15, 2001, a lawsuit was filed against the Department of 
the Interior (DOI) and the Service by the Center for Biological 
Diversity and California Native Plant Society, challenging our ``not 
prudent'' determinations for eight plants, including Brodiaea filifolia 
(Center for Biological Diversity et al. v. Department of the Interior 
et al., CV 01-2101). A second lawsuit asserting the same challenge was 
filed by the Building Industry Legal Defense Foundation (BILD) on 
November 21, 2001 (Building Industry Legal Defense Foundation v. 
Department of the Interior et al., CV 01-2145). Both cases were 
consolidated on March 19, 2002, and all parties agreed to remand the 
critical habitat determinations to the Service for additional 
consideration. On July 1, 2002, the U.S. District Court for the 
Southern District of California directed us to publish a new prudency 
determination and, if prudent, propose critical habitat for B. 
filifolia on or before November 30, 2004, and to publish a final rule 
on or before November 30, 2005.
    In the final listing rule, we determined that critical habitat was 
not prudent for Brodiaea filifolia because such designation would 
provide no benefit over that provided by listing on private property 
where the species occurs (63 FR 54975). The courts have ruled that, in 
the absence of a finding that the designation of critical habitat would 
increase threats to a species, the existence of another type of 
protection, even if it offers potentially greater protection to the 
species, does not justify a ``'not prudent''' finding (Conservation 
Council for Hawaii v. Babbitt 2 F. Supp. 2d 1280). Accordingly, we 
withdrew our previous determination that the designation of critical 
habitat was not prudent for B. filifolia and determined that critical 
habitat designation for this species is prudent. We had sufficient 
information necessary to identify specific features essential to the 
conservation of B. filifolia and proposed critical habitat for this 
species on December 8, 2004 (69 FR 71284). With the publication of this 
rule, we are designating final critical habitat for B. filifolia in 
compliance with the court's order.

Summary of Comments and Recommendations

    We contacted appropriate Federal, State, and local agencies, 
scientific organizations, and other interested parties and invited them 
to comment on the proposed critical habitat designation. We also 
invited public comment through the publication of notices on December 
17, 2004, in The Press-Enterprise, Riverside, CA; San Diego Union-
Tribune, San Diego, CA; Orange County Register, Santa Ana, CA; and the 
Los Angeles Times, Los Angeles, CA. The initial comment period ended 
February 7, 2005. There were no requests for public hearings.
    During the comment period that opened on December 8, 2004, and 
closed on February 7, 2005, we received 19 comment letters directly 
addressing the proposed critical habitat designation: 4 comment letters 
were received from 3 peer reviewers, 2 from Federal agencies, and 13 
from organizations or individuals. We received 2 additional comment 
letters that were illegible. We attempted to contact the authors of the 
letters but received no response; therefore, we could not consider the 
information. Thirteen commenters supported the designation of critical 
habitat for Brodiaea filifolia, and three opposed the designation. 
Three letters included comments or information, but did not express 
support or opposition to the proposed designation.
    A second comment period to consider the draft economic analysis of 
proposed critical habitat for Brodiaea filifolia opened on October 6, 
2005, and closed on October 20, 2005. During the comment period we 
received 6 letters: 5 from organizations or individuals and 1 from a 
local government agency. In opening the comment period on the draft 
economic analysis, we also reopened the comment period on our critical 
habitat proposal. Comments received during both comment periods were 
grouped into general issue categories relating to the proposed 
designation or the draft economic analysis.

Peer Review

    In accordance with our joint policy published on July 1, 1994 (59 
FR 34270), we solicited review of our proposed rule from at least three 
appropriate independent specialists/experts. The purpose of such review 
is to ensure our final designation is based on scientifically sound 
data, assumptions, and analyses. We solicited peer review from four 
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 
responses from three of the peer reviewers. The peer reviewers 
supported the designation; however, they expressed concern about errors 
and omissions in the proposal, including the exclusion of critical 
habitat on lands covered by Habitat Conservation Plans (HCP). Comments 
from peer reviewers and other commenters are addressed in the following 
summary, and corrections and information are incorporated into the 
final rule as appropriate.

Peer Reviewer Comments Related to Previous Federal Actions, the Act, 
and Implementing Regulations

    Similar comments that were received from other commenters are 
addressed in this section to avoid redundancy.
    (1) Comment: Two peer reviewers requested that we provide a review 
of the unique status of plants under the Act, including the limited 
protection plants are provided under section 9 of the Act and the pros 
and cons of critical habitat designation for plants. Another

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commenter indicated that Brodiaea filifolia receives substantial 
protection under the California Endangered Species Act (CESA) and the 
California Environmental Quality Act (CEQA) and does not require 
special management considerations or protection.
    Our Response: Brodiaea filifolia is listed as an endangered species 
under the CESA. This allows the species to receive greater attention 
during the land use planning process by local governments, public 
agencies, and landowners. State listed plants are protected from 
removal, except by permit or agreement from the California Department 
of Fish and Game (CDFG). However, listing under the CESA doesn't remove 
all conservation threats to the species. Areas that contain features 
essential to the conservation of B. filifolia and that may require 
special management considerations or protection would still warrant 
critical habitat designation under the Act. The benefits and 
limitations of critical habitat designation for B. filifolia are 
addressed in several different sections throughout this document, 
including the ``Effects of Critical Habitat Designation,'' and 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act.''

Peer Reviewer Comments Related to Life History, Habitat 
Characteristics, and Ecological Considerations

    (2) Comment: Three peer reviewers and five other commenters 
provided additional information, clarifications, and references for 
aspects of the biology, associated vegetation, and soil preferences of 
Brodiaea filifolia. One peer reviewer considered ours an excellent 
overview of the biology of the species but lacking two references they 
cited.
    Our Response: We appreciate additional information and 
clarification and, where appropriate, we have incorporated this into 
the final rule.
    (3) Comment: One peer reviewer and one individual stated that we 
should have cited more recent information, including the California 
Natural Diversity Database (CNDDB), regarding the historical range of 
Brodiaea filifolia, pointing out that some new occurrences have been 
discovered.
    Our Response: In developing the proposed rule we used data compiled 
from the CNDDB database in 2003 as well as an update in 2004 (CNDDB 
2003; 2004). This is a running database that includes periodic updates 
of existing occurrence information and new occurrence records. There 
was one occurrence of Brodiaea filifolia identified in the 2004 update 
of the CNDDB that we overlooked. This occurrence is located in an 
unincorporated area of central San Diego County near Lake Hodges. 
Fortunately, this occurrence of about 688 plants is being conserved 
under a Minor Amendment to the San Diego County MSCP.
    Another occurrence in the same area was not entered into the CNDDB 
until April 6, 2005 (CNDDB 2005); therefore, we were not able to 
consider it in the proposed rule. It is not possible to include an area 
in this final critical habitat designation that was not identified in 
the proposed rule. Because we are under a court deadline to complete 
this final rule, the publication of a revised proposed rule to include 
this area for public review and comment could not have been completed 
in time to comply with the court's deadline.
    (4) Comment: One peer reviewer cites the dumping of sewage sludge 
as the most serious threat to Brodiaea filifolia along the San Jacinto 
River habitat in Riverside County. The peer reviewer also stated that 
these deposits alter the soil chemistry.
    Our Response: This comment is appreciated and a discussion of this 
threat has been incorporated into the ``Background'' section of this 
final rule.
    (5) Comment: A peer reviewer and two individuals provided differing 
views on the issue of translocation. One view asserted that 
translocation may not have a high chance for success. The other 
perspective considers it premature to state that translocation is a 
threat to the species. One peer reviewer requested that we discuss all 
of the translocated populations.
    Our Response: We are uncertain about the long-term viability of 
translocated populations and their contribution to the species as a 
whole, therefore, we did not specifically include them in this 
designation. However, translocated populations may contribute to the 
long-term survival and recovery of the species. Additional long-term 
monitoring for genetic diversity and the reproductive impact of these 
populations is warranted. Only issues specifically related to the 
critical habitat designation are discussed in this final rule, 
therefore, we have not included a broad overview of translocated 
populations in this document.

Peer Reviewer Comments Related to Critical Habitat, Primary Constituent 
Elements, and Methodology

    (6) Comment: Two peer reviewers and two other commenters expressed 
concern about errors and lack of attribution to citations in the 
proposed rule, suggesting that it be rewritten and re-released. Several 
questions, additions, and corrections to statements and information 
relating to proposed critical habitat units were provided by peer 
reviewers and other commenters.
    Our Response: Because of a court deadline to complete this final 
rule, we could not publish a revised proposed rule for public review 
and comment in time to comply with the court's deadline. One of the 
purposes of releasing the proposed rule and draft economic analysis for 
public review and comment is to obtain substantive information and 
materials related to the proposed critical habitat designation. We 
appreciate receiving additional information, corrections, and 
clarifications that were useful in our re-evaluation of the proposed 
units and unit descriptions. Where appropriate, we have included this 
information and answers to specific questions in the final rule. See 
the ``Summary of Changes from Proposed Rule'' section for a review of 
changes in the final designation.
    (7) Comment: One peer reviewer stated that we did not provide 
information on our reasoning for proposing critical habitat in a number 
of locations in Riverside and San Diego counties.
    Our Response: We have re-evaluated areas included in proposed 
critical habitat. This final designation reflects mapping refinements, 
our re-evaluation of proposed areas under section 3(5)(A), and 
exclusions under sections 4(a)(3) and 4(b)(2) of the Act. Please refer 
to the ``Criteria Used to Identify Critical Habitat,'' and the 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (8) Comment: Two peer reviewers suggested literature citations, 
with one requesting that we cite final versions rather than draft 
documents, and the other requesting that the references cited list be 
published with the text of the rule and posted on the Internet.
    Our Response: Where appropriate, we have incorporated these 
suggestions in this rule. We cite the most current version of documents 
available. As stated in the ``References Cited'' section of the rule, a 
list of references cited is available upon request from the Carlsbad 
Fish and Wildlife Office. We will also make this list available on the 
Internet at https://carlsbad.fws.gov.
    (9) Comment: One peer reviewer and a public commenter questioned 
our use of a draft version of Bramlet and White 2004 (erroneously cited 
as White and Bramlet 2004 in the proposed rule).

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    Our Response: We referred to a working table of occurrences (Table 
3) during the preparation of the proposed rule. The information in this 
table was considered to be one of the best available on the occurrences 
of Brodiaea filifolia. Only occurrences corroborated from other sources 
are considered in this final rule.
    (10) Comment: Two peer reviewers and two public commenters 
variously stated that the section of the proposed rule titled 
``Designation of Critical Habitat Provides Little Additional Benefit to 
Species'' is generic, editorializing, out of place in a proposal, and 
political. One commenter wanted us to point to the research that 
specifically justifies this claim in relation to Brodiaea filifolia.
    Our Response: The section referenced by the commenters is intended 
to be a general statement regarding our position on the designation of 
critical habitat. As discussed in the preamble of this and other 
critical habitat designation rules, we believe that, in most cases, 
conservation mechanisms provided through section 7, the section 4 
recovery planning process, the section 9 protective prohibitions of 
unauthorized take, section 6 funding to the States, the section 10 
incidental take permit process, and cooperative programs with private 
and public landowners and Tribes provide greater incentives and 
conservation benefits than does the designation of critical habitat.
    (11) Comment: One peer reviewer and one commenter requested a 
definition of PCE. They also suggested clarifications for PCEs relating 
to habitat descriptions, soil types, slopes, and associated vegetation 
types.
    Our Response: As stated in the ``Primary Constituent Elements'' 
(PCE) section of the proposed rule (69 FR 71284), PCEs are those 
physical or biological features essential to the conservation of a 
species, and that may require special management considerations or 
protection. The PCEs for Brodiaea filifolia were based on the best 
available information relating to the species' occurrences and its soil 
and vegetation associations. Please refer to the ``Methods'' section of 
this final rule for a discussion of all information sources used to 
define the PCEs for B. filifolia.
    (12) Comment: Two peer reviewers noted the ability of Brodiaea 
filifolia to persist on disturbed, degraded, or disked sites and the 
suitability of these sites if allowed to recover, especially by natural 
flooding processes.
    Our Response: It is likely that some areas supporting occurrences 
of Brodiaea filifolia have been degraded to some degree. The areas 
included in proposed critical habitat and areas excluded from proposed 
designation under section 4(b)(2) of the Act were identified as being 
occupied and containing the physical or biological features essential 
to the conservation of the species. Lands included in this final 
designation are occupied and contain the features essential to the 
conservation of B. filifolia. Please refer to the ``Application of 
Section 3(5)(A), Exemption Under 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' section for information about areas removed, 
exempted, or excluded from critical habitat.
    (13) Comment: Two peer reviewers and three other commenters 
provided information and suggestions related to the species' biology, 
habitat description, and condition, as well as boundaries of the 
critical habitat subunits and areas containing habitat with features 
essential to the conservation of this species that were excluded from 
critical habitat in our proposal. One peer reviewer also noted that 
some units included unsuitable habitat. One commenter recommended we 
change the configuration of boundaries in the Rancho Santalina/Loma 
Alta subunit to better represent the areas containing features 
essential to the conservation of Brodiaea filifolia.
    Our Response: We appreciate the information and suggestions from 
these commenters and, where appropriate, we have incorporated the 
information on subunit descriptions into this final rule. Some of the 
commenters discussed making the boundaries of critical habitat subunits 
and areas containing habitat with features essential to the 
conservation of this species more precise. We made such changes where 
appropriate. We have attempted to map the boundaries to exclude 
developed land; however, we may not have been able to exclude all 
developed land or land that does not contain the PCEs. Any such 
structures and the land under them inadvertently left inside the mapped 
critical habitat boundaries have been excluded in the text portion of 
the rule, and are not designated as critical habitat. 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.
    Some commenters suggested including additional areas in the 
proposed subunits or making boundary adjustments in areas containing 
features essential to the conservation of the species that were 
excluded from proposed designation. However, these commenters did not 
provide sufficient site-specific data for us to adequately evaluate 
their recommendations. We reviewed the proposed Santalina/Loma Alta 
subunit and determined it does not meet the definition of critical 
habitat under section 3(5)(A) of the Act. Please refer to the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (14) Comment: Two peer reviewers and one commenter questioned our 
use of occurrences with 1,000 or more plants as a measure of whether an 
area contained habitat with features essential to the conservation of 
Brodiaea filifolia. One commenter questioned the science behind our 
decision not to propose all occurrences of B. filifolia in Orange and 
San Diego counties as critical habitat.
    Our Response: In developing our proposal, we relied on several 
types of information to determine whether an occurrence of Brodiaea 
filifolia was considered significant. As outlined in the ``Criteria 
Used to Identify Critical Habitat'' section, we evaluated population 
estimates, soil types, associated vegetation, and elevation. We also 
evaluated the location of occurrences in relation to the range of the 
species. For example, occurrences that supported less than 1,000 
plants, but which were on alkali playas were considered to be 
significant. For an explanation of why more areas in Orange and San 
Diego counties were not included in the final designation, please refer 
to the ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3) and Exclusions Under Section 4(b)(2) of the Act'' portion of 
this rule.
    (15) Comment: One peer reviewer and one individual questioned the 
value of including small units (e.g., 6b (Mesa Drive)), or those with 
few plants (e.g., subunits 4d (Prima Deschecha), 4f (Talega/Segunda 
Deschecha), and 6a (Alta Creek)) as critical habitat.
    Our Response: We considered occurrence information, soil types, 
vegetation association and other factors in our re-evaluation of 
proposed subunits. As a result of our re-evaluation, several proposed 
subunits, including 4d, 4f, and 6a, were removed from final 
designation. Subunit 6b (Mesa Drive) is relatively small, covering 
about 5 ac (2 ha), but it supports a significant occurrence of Brodiaea 
filifolia and contains features essential to the conservation of the 
species; therefore, it was included in proposed critical habitat. 
However, subunit 6b was excluded from final designation under section 
4(b)(2) of the Act. Please see the ``Summary of Changes from Proposed 
Rule,'' and

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``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' sections for more 
information.
    (16) Comment: One peer reviewer recommended that we add Domino or 
Chino alkali soils to the description of PCEs because Brodiaea 
filifolia occurs on these soil types in Riverside County.
    Our Response: We have reviewed this information and have included 
these soil types in our definition of the PCEs for Brodiaea filifolia.
    (17) Comment: Two peer reviewers and one Federal agency commenter 
questioned our inclusion of subunits 5a (Miller Mountain) and 5b (Devil 
Canyon) in proposed critical habitat because most plants in subunit 5a 
and some in subunit 5b are hybrids between Brodiaea filifolia and 
Brodiaea orcuttii. One peer reviewer noted that hybrids occur in the 
City of San Marcos and on Marine Corps Base, Camp Pendleton (Camp 
Pendleton), although specific numbers and locations were not provided. 
One peer reviewer stated that plants in areas containing features 
essential to the conservation of the species in Riverside County are 
prone to hybridization. Another commenter, knowledgeable about the 
genetics of Brodiaea, stated that B. filifolia and B. orcuttii form a 
unique line and could hybridize only with each other.
    Our Response: We acknowledge that within subunits 5a and 5b, there 
are substantial numbers of plants that are hybrids of Brodiaea 
filifolia and Brodiaea orcuttii (Boyd et al. 1992). The population in 
subunit 5a is considered to be largely hybridized and we cannot 
determine that they can be considered as contributors to the long-term 
conservation of the species; therefore, we removed this subunit from 
consideration. Although plants in subunit 5b also show some 
hybridization, the extent of the hybridization is less. The occurrence 
of B. filifolia in subunit 5b is significant and is found at one of the 
highest elevations within the range of the species. We have included 
the portion of land in subunit 5b that is occupied by B. filifolia and 
contains features essential to the conservation of the species in this 
final designation. Please see the ``Summary of Changes from Proposed 
Rule'' and ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act,'' and ``Unit 
Descriptions'' sections for more information.
    We are aware of a CNDDB (Element Occurrence 10) report in the City 
of San Marcos that included a reference to the possible presence of 
hybrids between Brodiaea filifolia and B. jolonensis. This area was 
identified as subunit 8d (Upham) in our proposed rule. It has been 
reported that putative hybrid individuals of B. filifolia and another 
species that has been erroneously referred to B. jolonensis occur on 
the site (Armstrong 2005). Though these hybrid plants exhibit 
intermediate characteristics between the two theorized parental 
species, a third species, B. orcuttii, also grows nearby within the 
unit. According to Armstrong (2005), the hybrid plants appeared to be a 
``clonal population'' restricted to ``a one acre area at the southwest 
end of the property'' and that these individuals ``probably reproduced 
asexually through cormlets.'' Although Armstrong (2005) found 
``numerous B. filifolia, B. orcuttii, and (the material referred to as 
B. jolonensis)'' growing within the unit in May 2005, he failed to 
observe any of the hybrid plants. As a result, although putative 
hybridization has been reported for this unit, hybrid plants are either 
no longer present or they represent an undetectable, small fraction of 
the overall population of B. filifolia. The occurrence of B. filifolia 
in this subunit is estimated to support about 1,000 plants and contains 
features essential to the conservation of the species.
    We were not able to confirm the commenter's reference to hybrids on 
Camp Pendleton.
    (18) Comment: One peer reviewer considered the mapping of lands in 
Riverside County that were excluded from proposed critical habitat to 
be inadequate. One individual requested UTMs for these same areas.
    Our Response: As stated in the proposed rule, maps of the areas in 
Riverside County containing features essential to the conservation of 
Brodiaea filifolia that were excluded under section 4(b)(2) of the Act, 
based on conservation measures outlined in the Western Riverside County 
Multiple Species Habitat Conservation Plan (MSHCP), were available on 
our Web site. We believe that the general public finds these maps more 
useful than the UTM coordinates. Also, GIS layers of the areas proposed 
for critical habitat designation as well as areas excluded from 
proposed critical habitat are available upon request from our office. 
We will clarify the availability of this information in future critical 
habitat rules.
    (19) Comment: One peer reviewer expressed the importance of 
designating critical habitat for Brodiaea filifolia in irregularly 
flooded bottomland areas of the San Jacinto River floodplain because of 
concerns that alteration of the floodplain could adversely modify a 
significant portion of the Riverside County occurrences of the plant 
and eliminate a unique element of the species' habitat associations 
(i.e., plants adapted to alkali soils). The reviewer stated that 
designation of critical habitat in the San Jacinto River floodplain 
area would strengthen the regulatory effectiveness of section 7 by 
adding ``adverse modification'' to the jeopardy standard available to 
the Service and ensure that activities of the U.S. Army Corps of 
Engineers (ACOE) do not adversely modify the habitat. The reviewer also 
indicated that thousands of acres are undergoing alteration by sewage 
sludge and manure dumping.
    Our Response: We agree that areas supporting Brodiaea filifolia in 
the San Jacinto River floodplain are important because they contain 
features essential to the conservation of the species. However, these 
areas have been excluded from critical habitat because the Western 
Riverside County MSHCP addresses the conservation needs of the species, 
including the maintenance of floodplain processes along the San Jacinto 
River. The Secretary has determined the benefits of excluding lands 
covered by the Western Riverside County MSHCP outweigh the benefits of 
including them in critical habitat (see the ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' section of this rule.)
    (20) Comment: Two peer reviewers and one individual commenter 
stated that areas we identified as having features essential to the 
conservation of Brodiaea filifolia near the City of Corona and in 
Moreno Valley in Riverside County are erroneous and based on an early 
draft of the Western Riverside County MSHCP. The commenter suggested 
they might be derived from questionable biological surveys.
    Our Response: We appreciate the correction. After further 
evaluation, we did not find reliable data validating the occurrences of 
Brodiaea filifolia at these locations, and we removed them from 
consideration. For more information, please refer to the ``Summary of 
Changes from Proposed Rule.''
    (21) Comment: One peer reviewer suggested that we designate habitat 
blocks that contain the entire San Jacinto River floodplain to capture 
the historical habitat of the species.
    Our Response: When designating critical habitat for Brodiaea 
filifolia we identified land containing physical or biological features 
essential to the conservation of the species and which may require 
special management considerations or protection. Physical or

[[Page 73825]]

biological features include areas needed for pollen dispersal and 
pollination; seed dispersal and germination, and maintenance of seed 
banks; and areas that provide the basic requirements for growth. These 
features, referred to as PCEs, are discussed in the ``Primary 
Constituent Elements'' section of this rule. Areas in western Riverside 
County, including lands within the San Jacinto River floodplain that 
are occupied by B. filifolia and contain features essential to the 
conservation of the species have been excluded from critical habitat 
pursuant to section 4(b)(2) of the Act (see ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act.'')
    (22) Comment: One peer reviewer questioned how land management of 
reserves helps recovery of the species with and without critical 
habitat.
    Our Response: We are assuming the peer reviewer is referring 
specifically to reserves that are established in conjunction with HCPs. 
Approved HCPs include measures to monitor, minimize, and mitigate 
impacts; and must provide adequate funding. Management of reserves in 
accordance with an HCP's issuance criteria would be carried our 
regardless of a critical habitat designation on identified reserve 
lands. Only actions authorized, funded, or carried out by a Federal 
agency that may affect critical habitat would require consultation with 
us and would not affect actions undertaken on reserve areas that do not 
have a Federal nexus. Reserves established as part of an HCP include 
monitoring and management to ensure the areas retain their biological 
value for the species.

Peer Review Comments Related to Department of Defense (DoD) Lands

    (23) Comment: One peer reviewer requested a discussion of the 
importance of populations of Brodiaea filifolia on Camp Pendleton.
    Our Response: Populations of Brodiaea filifolia on Camp Pendleton 
are of considerable importance not only because of the numbers of 
plants reported (over 4,000) from several different occurrences, but 
also because they are found in more than one vegetation or soil 
association, including grasslands and vernal pools; the occurrences are 
distributed in a manner that likely facilitates pollen transfer among 
them and also with occurrences to the north and south of Camp 
Pendleton. Please see the ``Application of Section 3(5)(A), Exemption 
Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) of the 
Act'' for more information about Camp Pendleton's Integrated Natural 
Resource Management Plan (INRMP) and other measures Camp Pendleton is 
undertaking to address B. filifolia on their lands.

Peer Review Comments Related to the NCCP/HCP Program, Section 7, and 
Section 404

    (24) Comment: Two peer reviewers and one commenter disagreed with 
our determination to exclude critical habitat based on approved HCPs. 
One peer reviewer expressed further concern that it is uncertain 
whether HCPs will protect these areas because no specific preserve 
boundaries have been proposed, relying instead on goals and potential 
conservation. The reviewers stated that we did not provide a clear 
biological reason for excluding lands covered by HCPs and questioned 
why more areas were not determined to be critical habitat.
    Our Response: Under section 4(b)(2) of the Act, the Secretary may 
exclude any particular area from critical habitat designation if the 
benefits of excluding such area outweigh the benefits of including it 
in critical habitat, unless it is determined, based on the best 
scientific and commercial data available, that the failure to designate 
such area as critical habitat will result in the extinction of the 
species. We evaluated the benefits of excluding critical habitat on 
lands covered by HCPs, including the Western Riverside County MSHCP, 
the San Diego County Multiple Habitat Conservation Plan (MHCP) and its 
approved subarea plans, the Orange County Central and Coastal NCCP/HCP, 
and the Settlement Agreement for Rancho Mission Viejo's Ranch Plan, a 
component of the draft Orange County Southern Subregion NCCP/HCP, 
against the benefits of including such lands in critical habitat. A 
major benefit of excluding these lands from critical habitat is the 
facilitation of continued partnerships with the various signatory 
agencies, cities and landowners involved with these NCCP/HCP efforts. 
Although a possible benefit of including these lands in critical 
habitat would be to enhance education about the species and its habitat 
needs, we consider this benefit to have largely been met through the 
public participation process that occurred, and continues to occur, 
during the development and implementation of these conservation 
planning efforts. We acknowledge that the Western Riverside County 
MSHCP does not describe a hard-lined reserve, but it does identify 
specific conservation goals and objectives for Brodiaea filifolia, 
including the conservation of 11 occurrences in the two Core Areas in 
western Riverside County where this species is found.
    Please refer to the ``Application of Section 3(5)(A), Exemption 
Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) of the 
Act'' section for more discussion of the Western Riverside County MSHCP 
and other NCCP/HCP efforts.
    (25) Comment: Two peer reviewers state that the Lakeview/Nuevo Area 
Plan (Dudek and Associates 2003) is inconsistent with provisions of the 
Western Riverside County MSHCP because it has nearly the entire 
Criteria Area zoned for residential development.
    Our Response: Under the Western Riverside County MSHCP, permittees 
are obligated to adopt and maintain ordinances or resolutions as 
necessary, and amend their general plans as appropriate, to implement 
the requirements and fulfill the purposes of the MSHCP and its 
associated Implementing Agreement (IA) and Permit (Dudek and Associates 
2003).
    (26) Comment: Two peer reviewers requested that we discuss specific 
conservation actions under the Western Riverside County MSHCP that will 
result in conservation of Brodiaea filifolia. One reviewer specifically 
asked what assurances are in place that conservation benefits will 
occur before Highway 79 is built through habitat for the species.
    Our Response: The Western Riverside County MSHCP identifies 
specific goals to be implemented for long-term conservation of Brodiaea 
filifolia, including conservation of at least 6,900 ac (2,760 ha) of 
habitat, containing 11 major locations supporting the species, 
conducting surveys for B. filifolia in certain areas, and maintaining 
floodplain processes along the San Jacinto River.
    The assembly of the MSHCP Conservation Area is anticipated to occur 
over a period of time during the life of the Permit. To ensure that the 
resources ultimately conveyed to the MSHCP Conservation Area are 
maintained in their existing condition prior to reserve assembly, the 
MSHCP permittees are obligated to adopt and maintain ordinances or 
resolutions and to amend their general plans such that they will be 
able to meet their obligations under the MSHCP (Dudek and Associates, 
Inc. 2003; 2003b).
    Several covered activities discussed under the MSHCP have the 
potential to impact populations of Brodiaea filifolia within the 
proposed MSHCP Conservation Area, including the San Jacinto River Flood 
Control Project and the State Route 79 Realignment Project.

[[Page 73826]]

These projects will require additional consultation with our agency 
under section 7 of the Act (Dudek and Associates, Inc. 2003).
    As a result of informal consultation conducted to date on the State 
Route 79 Realignment Project, the City of Hemet has adopted an Interim 
Urgency Ordinance that preserves two avoidance alternatives for the 
State Route 79 Realignment Project, both of which are located outside 
of the MSHCP Criteria Area, and also allows the City to ensure that 
development efforts within the MSHCP Criteria Area are coordinated such 
that habitat conserved within the Criteria Area does not become 
fragmented, thereby allowing the City to meet their obligations under 
the MSHCP (City of Hemet 2005).
    (27) Comment: One peer reviewer stated that there was no protection 
of land for Brodiaea filifolia before the approval of the Western 
Riverside County MSHCP, and there is no protection now, as evidenced by 
the ongoing dumping of sewage sludge and manure on occupied habitat. 
The reviewer cited an area along Case Road where dumping has occurred.
    Our Response: Permittees under the Western Riverside County MSHCP 
are obligated to adopt and maintain ordinances or resolutions as 
necessary, and amend their general plans as appropriate, to implement 
the requirements and to fulfill the purposes of the MSHCP and its 
associated IA and Permit (Dudek and Associates, Inc. 2003; 2003b). The 
Western Riverside County MSHCP is a large, complex habitat conservation 
plan, and its implementation is expected to take time. In its first 
year of implementation, the Western Riverside County MSHCP has already 
resulted in conservation and management actions that address threats to 
Brodiaea filifolia on private lands. For example, the City of Hemet has 
adopted an ordinance that has halted the dumping of manure within the 
City (City of Hemet 2002).
    (28) Comment: One peer reviewer expressed concern that there is no 
assurance that prioritization of conservation areas following the 
criteria of the Western Riverside County MSHCP will select the more 
favorable biological areas over less favorable areas. For example, 
while the Western Riverside County MSHCP proposes one method of 
conservation, another, yet to be disclosed method, could prevail.
    Our Response: We refer the reader to our responses to comments 24 
and 26 above and to the section titled ``Application of Section 
3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under Section 
4(b)(2) of the Act'' for more information.
    (29) Comment: One peer reviewer, citing the Fieldstone/La Costa 
Associates HCP/Ongoing Multi-species Plan (known as the Villages of La 
Costa HCP), approved about 10 years ago, states that HCPs are supposed 
to provide for monitoring of the status of covered species to measure 
the success of conservation measures and asked us to document the 
status of the reserve.
    Our Response: Conservation provisions for Brodiaea filifolia 
outlined in the Villages of La Costa HCP include protection of almost 
6,000 plants in an open-space preserve with long-term management and 
monitoring, habitat restoration, and control of invasive plant species. 
Further information about this HCP can be found in the section titled 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act.''

Public Comments Related to Life History, Habitat Characteristics, and 
Ecological Considerations

    (30) Comment: One commenter criticized our use of foraging distance 
data based on Bombus taxa (bumblebees), stating that their studies had 
not recorded a single instance of bumblebees visiting Brodiaea 
filifolia on their property.
    Our Response: We believe our use of the 820 feet (ft) (250 meters 
(m)) distance for pollinator movement and habitat is justified. Bell 
and Rey (1991) noted Bombus californicus as one of the native bees 
observed pollinating Brodiaea filifolia on the Santa Rosa Plateau in 
Riverside County. Please see the ``Criteria Used to Identify Critical 
Habitat'' section for a detailed discussion.
    (31) Comment: One commenter criticized our omission of a study of 
pollinators conducted by Rancho Mission Viejo.
    Our Response: The omission of this report was inadvertent. The 
report summarizes field studies conducted in late spring 2003 and 
reports insects visiting flowers of Brodiaea filifolia at two locations 
and two times during the season. Observations were made on three dates 
between April and May 2003. Burrowing bees (Anthophoridae), Sweat bees 
(Halictidae), and Flower-loving flies (Syrphidae) were the most common 
groups of insects observed, although it is not clear from the report 
whether pollination by the various insects was confirmed by 
observations of fruit production by the plants. Information from this 
report is incorporated, where appropriate, in this final rule.

Public Comments Related to Critical Habitat, Primary Constituent 
Elements, and Methodology

    (32) Comment: One commenter suggested a method for designing the 
size of conservation areas based on Burgman et al. (2001).
    Our Response: Although the information is appreciated, it is 
important to clarify the differences between establishment of 
conservation areas and the designation of critical habitat. The 
designation of critical habitat does not establish reserves, preserves, 
wilderness areas, refuges or other types of conservation areas. We 
suggest readers refer to the sections on ``Methods,'' ``Primary 
Constituent Elements,'' and ``Effects of Critical Habitat Designation'' 
to more fully understand how we identified areas for critical habitat 
designation, the features essential to the conservation of the species, 
and the effect of critical habitat on landowners.
    (33) Comment: One commenter wanted to know how many occurrences in 
Riverside and San Diego counties are outside designated critical 
habitat and how this would affect the viability of the species.
    Our Response: A number of occurrences in Riverside and San Diego 
counties were not proposed for designation because they were not 
considered significant occurrences, or were excluded from proposed 
critical habitat under section 4(b)(2) of the Act. Many of these areas 
receive conservation consideration under existing INRMPs, HCPs, or 
other conservation instruments. Please refer to the ``Application of 
Section 3(5)(A), Exemption Under Section 4(a)(3), and Exclusions Under 
Section 4(b)(2) of the Act'' for more information. Please note that, 
although habitat for Brodiaea filifolia may be outside the boundaries 
of designated critical habitat, it does not mean these areas are 
unimportant or may not be necessary for recovery of the species.
    (34) Comment: One commenter stated that the purpose of critical 
habitat under section 3 of the Act is to facilitate recovery of species 
and that it should include the opportunity for genetic exchange, 
migration, and changes in climate.
    Our Response: The definition of critical habitat has two prongs, 
that is, one prong considers specific areas within the geographic area 
occupied by the species and the second prong considers specific areas 
outside the geographic area occupied by the species.

[[Page 73827]]

To the extent that we can relate genetic exchange, migration, and 
changes in climate to physical and biological features essential to the 
conservation of the species and those areas also require special 
management considerations or protection (prong one) or based upon a 
determination by the Secretary that an unoccupied area is essential to 
the conservation of the species (prong two), we may and do consider 
those factors in our designation of critical habitat. Please see the 
``Designation of Critical Habitat Provides Little Additional Protection 
to Species'' section and the ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' for more information and discussion.
    (35) Comment: One commenter stated there is a poor record of 
recovery for species with critical habitat while another commenter 
cited a report indicating that species with critical habitat are less 
likely to be in decline and twice as likely to be recovering.
    Our Response: The Service has been unable to independently verify 
the results of such studies. The fact that there are conflicting 
studies shows that the issue has not been settled. The Service believes 
that most of the protections of the Act come with listing the species, 
and by far the most successful recovery efforts come from voluntary 
partnerships. Critical habitat designation is not the sole means by 
which conservation of a species may be addressed.
    (36) Comment: One commenter characterized our proposed rule as a 
sweeping designation that exceeds our congressional mandate. The 
commenter further stated that our designation should be based on the 
estimated 825 ac (334 ha) of land occupied by Brodiaea filifolia 
identified in the final listing rule (63 FR 54975). Another commenter 
stated that Congress intended for critical habitat to be extremely 
narrowly defined and limited only to areas necessary to bring the 
species to a point where it is no longer in danger of extinction.
    Our Response: In developing the final critical habitat designation 
for B. filifolia, we reviewed all information and data received during 
the two public comment periods and have removed from consideration 
those lands that do not meet the criteria for designation. Specific 
areas included in this final designation contain the physical or 
biological features essential to the conservation of B. filifolia, 
including space for pollen dispersal and pollination; seed dispersal 
and germination, and maintenance of seed banks; and areas that provide 
the basic requirements for growth. Please refer to the ``Summary of 
Changes From Proposed Rule,'' and ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' sections of this rule for more information.
    (37) Comment: One commenter requested that we indicate which 
parcels within critical habitat units/subunits contain the PCEs. The 
commenter also stated that all lands within proposed units/subunits may 
not contain all of the PCEs.
    Our Response: In re-evaluating areas proposed as critical habitat 
for Brodiaea filifolia, we determined that some areas do not contain 
features essential to the conservation of the plant, and therefore were 
removed from final designation. The ``Summary of Changes from Proposed 
Rule'' and ``Application of Section 3(5)(A), Exemption Under Section 
4(a)(3), and Exclusions Under Section 4(b)(2) of the Act'' sections 
provide information about areas removed from final designation. Due to 
the scale at which we map critical habitat boundaries, we do not 
include parcel level detail. If lands within the boundaries of critical 
habitat units/subunits do not contain any PCEs, then they have been 
excluded from the designation in the text portion of the rule.
    (38) Comment: One commenter stated that it was not good science to 
``extrapolate'' genetic information from studies on a ``ubiquitous 
genera'' such as Lasthenia (lasthenia) to narrow endemic species such 
as Brodiaea filifolia.
    Our Response: We cited the reference to Lasthenia to highlight the 
significance of outlying portions of a species' range to its genetic 
diversity. Ornduff (1966) cites several species of Lasthenia with 
morphological or cytological variants at the margins of their 
distributions. One example used was Lasthenia fremontii, restricted to 
vernal pools or wet meadows in the Central Valley. This example was 
cited for the purposes of explaining how peripheral populations of 
Brodiaea filifolia may be important to maintaining the genetic 
diversity of the taxa.
    (39) Comment: Two commenters questioned our 820 ft (250 m) 
pollinator movement and habitat area. One commenter thought it was too 
narrow, the other thought it was too wide. One cited a reference that 
one group of bees (halictids) forage no more than 328 ft (100 m).
    Our Response: We have included additional references and discussion 
in the ``Background'' section of this rule to support our use of 820 ft 
(250 m) for a pollinator movement and habitat area. Please see the 
``Background'' and ``Criteria Used to Identify Critical Habitat'' 
sections for a detailed discussion.

Public Comments Related to Department of Defense Lands

    (40) Comment: One Federal agency commenter agreed with our 
exclusion of mission-critical areas on Camp Pendleton from critical 
habitat designation under section 4(b)(2) of the Act; however, they 
strongly disagreed with our determination in the proposed rule that 
Camp Pendleton's Integrated Natural Resource Management Plan (INRMP) 
does not provide a benefit for Brodiaea filifolia. The commenter 
characterized critical habitat as encroachment that would unacceptably 
degrade Camp Pendleton's mission. The commenter also provided 
information about programs and activities carried out under the INRMP 
for B. filifolia.
    Our Response: We appreciate the information from the commenter and 
have reviewed Camp Pendleton's INRMP, completed in November 2001 (U.S. 
Marine Corps 2001). Based on our review of the INRMP and information 
provided by the commenter, we determined that the INRMP provides a 
benefit for Brodiaea filifolia and have exempted Camp Pendleton from 
critical habitat designation pursuant to section 4(a)(3) of the Act. We 
have also determined that exclusion of Camp Pendleton pursuant to 
section 4(b)(2) of the Act is also appropriate. Please see the 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' section for more 
information.
    (41) Comment: One commenter claimed we are inconsistent in 
excluding Camp Pendleton from critical habitat designation while other 
military installations have critical habitat on their lands.
    Our Response: The commenter did not cite which military 
installation(s) had critical habitat designation(s); therefore, we 
cannot provide specific information about a particular installation. 
Under section 4(b)(2) of the Act, the Secretary shall designate 
critical habitat, and revise critical habitat on the basis of the best 
scientific data available and after taking into consideration the 
economic impact, national security impact, and any other relevant 
impact of specifying a particular area as critical habitat. The 
Secretary may exclude any particular area from critical habitat if the 
benefits of such exclusion outweigh the benefits

[[Page 73828]]

of specifying such area as critical habitat, unless the failure to 
designate such area as critical habitat will result in the extinction 
of the species. These determinations are made by the Secretary on a 
species-by-species and area-by-area basis.
    Section 318 of the fiscal year 2004 National Defense Authorization 
Act (Pub. L. 108-136) amended the Act by adding a new section 
4(a)(3)(B). This provision prohibits designation of critical habitat on 
any lands or other geographical areas owned or controlled by the 
Department of Defense (DoD), or designated for its use, that are 
subject to an INRMP prepared under section 101 of the Sikes Act (16 
U.S.C. 670a), if the Secretary determines in writing that such plan 
provides a benefit to the species for which critical habitat is 
proposed for designation.
    The provisions of section 3(5)(A), 4(a)(3), and 4(b)(2) of the Act 
are fully considered by us when designating critical habitat. In some 
cases, critical habitat may have been designated on lands owned or 
controlled by the DOD prior to the 2004 amendments to the Act, or if 
otherwise determined to be appropriate. Please see the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information. Any 
revisions to designated critical habitat could be considered through 
the formal rulemaking process, subject to funding availability.

Public Comments Related to NCCP/HCP Program, Section 7, and Section 404

    (42) Comment: One commenter stated that the Ranch Plan, a component 
of the draft Orange County Southern Subregion NCCP/HCP is designed to 
maximize gene flow for Brodiaea filifolia and that implementation of 
the Ranch Plan would not significantly reduce genetic exchange because 
of preexisting isolation. The commenter requested their property be 
excluded from critical habitat designation for B. filifolia because of 
the protections afforded the species under the draft NCCP/HCP.
    Our Response: In general, it is our policy to consider excluding 
from critical habitat designation HCPs that are approved or are very 
close to completion as indicated by the fact that an Environmental 
Impact Statement/Environmental Impact Report (EIS/EIR) has already been 
prepared and released for public review and comment. We have not yet 
released a draft EIS/EIR for the Orange County Southern Subregion NCCP/
HCP for public review and comment; however, we are excluding from final 
critical habitat designation the portion of lands within the boundary 
of the draft NCCP/HCP that are owned by Rancho Mission Viejo and 
identified in the Ranch Plan under section 4(b)(2) of the Act, based on 
a recent Settlement Agreement. Please refer to the section 
``Application of Section 3(5)(A), Exemption Under Section 4(a)(3), and 
Exclusions Under Section 4(b)(2) of the Act'' for more information.
    (43) Comment: One commenter stated that the City of San Marcos does 
not have an approved HCP and is not likely to have one in the near 
future that would warrant exclusion of their lands from critical 
habitat under section 4(b)(2) of the Act.
    Our Response: We did not exclude any lands within the City of San 
Marcos under section 4(b)(2) of the Act; however, some lands in the 
City of San Marcos were removed from further consideration as critical 
habitat. Please refer to the ``Application of Section 3(5)(A), 
Exemption Under Section 4(a)(3), and Exclusions Under Section 4(b)(2) 
of the Act'' for more information.
    (44) Comment: Three commenters supported our practice of excluding 
critical habitat on areas covered by HCPs. One also suggested that we 
exclude areas covered under proposed HCPs, noting that failure to do so 
would remove incentives for them to participate in these planning 
efforts. This commenter also stated that exemptions from critical 
habitat should automatically follow approval of an HCP. Another 
commenter further stated that designating critical habitat in areas 
covered by an HCP would impose economic burdens, invite legal 
challenges, and be a disincentive to developing HCPs.
    Our Response: It is our policy to exclude from critical habitat 
lands containing features essential to the conservation of a federally 
listed species that are covered by approved HCPs. Pursuant to section 
4(b)(2) of the Act, critical habitat is to be designated or revised 
ba