Endangered and Threatened Wildlife and Plants; Clarification of the Economic and Non-Economic Exclusions for the Final Designation of Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal Pool Plants in California and Southern Oregon, 30279-30297 [E7-10448]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 104 (Thursday, May 31, 2007)]
[Rules and Regulations]
[Pages 30279-30297]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-10448]



[[Page 30279]]

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV18


Endangered and Threatened Wildlife and Plants; Clarification of 
the Economic and Non-Economic Exclusions for the Final Designation of 
Critical Habitat for Four Vernal Pool Crustaceans and Eleven Vernal 
Pool Plants in California and Southern Oregon

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Clarification of final critical habitat exclusions.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service) provide a 
clarification of the economic and non-economic exclusions under section 
4(b)(2) of the Endangered Species Act of 1973, as amended (Act), in 
support of the final designation of critical habitat for four vernal 
pool crustaceans and eleven vernal pool plants in California and 
Southern Oregon. We are taking this action in response to a court 
order. This clarification does not change the areas designated as 
critical habitat for the 15 vernal pool species.

FOR FURTHER INFORMATION CONTACT: Susan Moore, Field Supervisor, 
Sacramento Fish and Wildlife Office, 2800 Cottage Way, Sacramento, CA 
95825 (telephone 916-414-6600; facsimile 916-414-6712). Persons who use 
a telecommunications device for the deaf (TDD) may call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    On August 6, 2003, the Service published a final rule designating 
critical habitat for 4 vernal pool crustaceans and 11 vernal pool plant 
species in California and southern Oregon (68 FR 46683). In January 
2004, Butte Environmental Council and several other organizations filed 
a complaint alleging that we: (1) Violated both the Act (16 U.S.C. 1531 
et seq.), and the Administrative Procedure Act (APA) (5 U.S.C. 551 et 
seq.) by excluding over 1 million acres from the final designation of 
critical habitat for the 15 vernal pool species; (2) violated mandatory 
notice-and-comment requirements under the Act and APA; and (3) engaged 
in an unlawful pattern, practice, and policy by failing to properly 
consider the economic impacts of designating critical habitat. On 
October 28, 2004, the court signed a Memorandum and Order in that case. 
The Memorandum and Order remanded the final designation to the Service 
in part. In particular, the court ordered us to: (1) Reconsider the 
exclusions from the final designation of critical habitat for the 15 
vernal pool species, with the exception of those lands within the 5 
California counties that were excluded based on potential economic 
impacts, and publish a new final determination as to those lands within 
120 days; and (2) reconsider the exclusion of the 5 California counties 
based on potential economic impacts and publish a new final 
determination no later than July 31, 2005. On December 28, 2004, we 
published in the Federal Register a reopening of the comment period to 
solicit additional comments on the exclusions. On March 8, 2005, the 
Service published a confirmation of the non-economic exclusions (70 FR 
11140) which addressed the first requirement of the October 2004 court-
ordered remand. On August 11, 2005, the Service published a final rule 
(70 FR 46924) addressing the economic exclusions under section 4(b)(2) 
of the Act which addressed the second requirement of the October 2004 
court-ordered remand.
    On November 1, 2006, the U.S. District Court for the Eastern 
District of California issued a Memorandum and Order in Home Builders 
Association of Northern California et al. v. U.S. Fish and Wildlife 
Service et al. Case No. CIV S-05-0629 WBS-GGH. The court, in its 
opinion, noted that there were limited deficiencies in the existing 
rules designating critical habitat for 15 vernal pool plant and 
invertebrate species, variously listed as threatened or endangered 
under the Act. Specifically, the court found that the Service had not 
sufficiently articulated its rationale for excluding two census tracts 
containing public works projects from critical habitat, and that the 
Service failed to consider the recovery standard under the Act, 
pursuant to the Ninth Circuit Court of Appeal's decision in Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 
(9th Cir 2004) (hereinafter Gifford Pinchot). The court remanded the 
rules to the Service for further action consistent with the court's 
findings, as well as all applicable laws, and ordered the Service to 
submit new final critical habitat rules to the Federal Register by 
March 1, 2007. On January 24, 2007, the court clarified its November 
2006 Memorandum and Order stating that the Service had adequately 
considered the recovery standard under the Act, pursuant to Gifford 
Pinchot for the non-economic exclusions. However, the court confirmed 
the remand of the economic exclusions for consideration of the recovery 
benefits of critical habitat pursuant to the Gifford Pinchot decision. 
The court granted an additional 120 days from January 24, 2007 for the 
Service to address the issues in both orders. This clarification of 
final critical habitat exclusions complies with the court's November 
2006 and January 2007 Memorandum and Orders.
    Since the publication of our August 11, 2005 final rule, we have 
received four petitions to revise critical habitat for the four vernal 
pool crustaceans and eleven vernal pool plants in California and 
Southern Oregon. Under the terms of the court ordered remand described 
above, we have reanalyzed the exclusions from critical habitat and 
separately evaluated the information contained within the petitions. We 
have concluded that the petitions do not contain substantial new 
information that would warrant revision of critical habitat.

Application of Section 4(a)(3) of the Act

    There are multiple ways to provide management for species' habitat. 
Statutory and regulatory frameworks that exist at a local level can 
provide such protection and management. Finally, State, local, or 
private management plans, as well as management under Federal agencies' 
jurisdictions, can provide needed protections and management making 
designation of critical habitat unnecessary. When we consider a plan to 
determine its adequacy in protecting habitat, we consider whether the 
plan, as a whole, will provide the same level of protection that 
designation of critical habitat would provide. The plan needs to 
provide the equivalent protection of critical habitat. In making this 
determination, we examine whether the plan provides management, 
protection, or enhancement of the primary constituent elements (PCEs) 
that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.
    The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a) 
required each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete, by November 17, 2001, an Integrated

[[Page 30280]]

Natural Resource Management Plan (INRMP). An INRMP integrates 
implementation of the military mission of the installation with 
stewardship of the natural resources found on the base. Each INRMP 
includes an assessment of the ecological needs on the installation, 
including the need to provide for the conservation of listed species; a 
statement of goals and priorities; a detailed description of management 
actions to be implemented to provide for these ecological needs; and a 
monitoring and adaptive management plan. Among other things, each INRMP 
must, to the extent appropriate and applicable, provide for fish and 
wildlife management, fish and wildlife habitat enhancement or 
modification, and wetland protection, enhancement, and restoration 
where necessary to support fish and wildlife and enforcement of 
applicable natural resource laws.
    The National Defense Authorization Act for Fiscal Year 2004 (Pub. 
L. 108-136) amended the Act to limit areas eligible for designation as 
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16 
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not 
designate as critical habitat any lands or other geographical areas 
owned or controlled by the Department of Defense, or designated for its 
use, that are subject to an integrated natural resources management 
plan 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.''
    We consult with the military on the development and implementation 
of INRMPs for installations with listed species. INRMPs developed by 
military installations located within the range of the critical habitat 
designation for the 15 vernal pool species were analyzed for exemption 
under the authority of section 4(a)(3) of the Act.

Approved INRMPs

Travis Air Force Base
    Travis Air Force Base (AFB) has several vernal pool complexes that 
support the vernal pool fairy shrimp and Lasthenia conjugens and that 
also contain PCEs for Neostapfia colusana, Conservancy fairy shrimp, 
Tuctoria mucronata, and vernal pool tadpole shrimp. As a result of 
wetland surveys, Travis AFB had identified 235 vernal pools on 
approximately 100 acres (ac) (40 hectares (ha)) of the 1,100 ac (445 
ha) that are not developed on the base. To date, only Lasthenia 
conjugens and the vernal fairy shrimp have been discovered on Travis 
AFB within these 100 ac (40 ha). Travis AFB has a Service-approved 
INRMP in place that provides a benefit for the vernal pool fairy shrimp 
and Lasthenia conjugens and that provides protection of the PCEs for 
Neostapfia colusana, Conservancy fairy shrimp, Tuctoria mucronata, and 
vernal pool tadpole shrimp. The INRMP was approved on April 16, 2003.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp and Lasthenia conjugens, Neostapfia colusana, Conservancy fairy 
shrimp, Tuctoria mucronata, and vernal pool tadpole shrimp. Therefore, 
Travis AFB is exempt from inclusion in the designation of critical 
habitat for the 15 vernal pool species under section 4(a)(3) of the 
Act. This does not result in a change to the areas currently designated 
as critical habitat for the 15 vernal pool species.
Beale Air Force Base
    Beale Air Force Base (AFB) has several substantial vernal pool 
complexes that support the vernal pool fairy shrimp and vernal pool 
tadpole shrimp, especially on the western side of the base. A final 
revised INRMP was approved by the Service on February 26, 2006, and 
provides a benefit for the vernal pool fairy shrimp and vernal pool 
tadpole shrimp. The completed INRMP provides for management and 
conservation of vernal pools within the base and establishes a Vernal 
Pool Conservation and Management Area to protect vernal pool complexes 
on the western side of the base. The Beale AFB is also currently 
preparing a Habitat Conservation Management Plan (HCMP) for the area. 
We will consult with Beale AFB under section 7 of the Act on the 
development and implementation of the HCMP and base comprehensive plan. 
The Beale AFB INRMP provides a benefit for the vernal pool fairy shrimp 
and vernal pool tadpole shrimp.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp and vernal pool tadpole shrimp. Therefore, Beale AFB is exempt 
from inclusion in the designation of critical habitat for the 15 vernal 
pool species under section 4(a)(3) of the Act. This does not result in 
a change to the areas currently designated as critical habitat for the 
15 vernal pool species.
Camp Roberts
    Camp Roberts has substantial vernal pool complexes that support the 
vernal pool fairy shrimp. Camp Roberts completed their INRMP in 1999. 
We will consult with Camp Roberts under section 7 of the Act on the 
development and implementation of their revised INRMP. The INRMP that 
is currently in place provides for the vernal pool fairy shrimp and the 
features essential to its conservation and recovery occurring on Camp 
Roberts.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp. Therefore, Camp Roberts is exempt from inclusion in the 
designation of critical habitat for the 15 vernal pool species under 
section 4(a)(3) of the Act. This does not result in a change to the 
areas currently designated as critical habitat for the 15 vernal pool 
species.
Fort Hunter Liggett
    Fort Hunter Ligget has several substantial vernal pool complexes 
that support the vernal pool fairy shrimp. Fort Hunter Liggett 
completed its INRMP in 2004. The INRMP provides for management and 
conservation of vernal pool fairy shrimp and vernal pools, and 
establishes sensitive resource protection areas (SRPA). High quality 
vernal pools are found in SRPA 3, where current and proposed uses 
include vehicle travel on existing roads only, foot traffic, 
maintenance of roads and facilities, landings by helicopters, and 
habitat improvement projects. Ground disturbing activities are 
restricted. All other activities require coordination with the 
Environmental Office to ensure sensitive resources are not adversely 
affected. Fort Hunter Liggett's INRMP was approved by the Service in a 
programmatic biological opinion (1-8-02-F-29R) in March 2005.
    Based on the above considerations, and in accordance with section 
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts 
identified in the INRMP will provide benefits to the vernal pool fairy 
shrimp on Fort Hunter Liggett. Therefore, Fort Hunter Liggett is exempt 
from inclusion in the designation of critical habitat for the 15 vernal 
pool species under section 4(a)(3) of the Act. This does not result in 
a change to the areas currently designated as critical habitat for the 
15 vernal pool species.

Application of Section 4(b)(2) of the Act

    Section 4(b)(2) of the Act states that critical habitat shall be 
designated, and

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revised, on the basis of the best available scientific data after 
taking into consideration the economic impact, impact on national 
security, and any other relevant impact of specifying any particular 
area as critical habitat. The Secretary may exclude an area from 
critical habitat if he determines that the benefits of such exclusion 
outweigh the benefits of specifying such area as part of the critical 
habitat, unless he determines, based on the best scientific data 
available, that the failure to designate such area as critical habitat 
will result in the extinction of the species. In making that 
determination, the Congressional record is clear that the Secretary is 
afforded broad discretion regarding which factor(s) to use and how much 
weight to give to any factor.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If an 
exclusion is contemplated, then we must determine whether excluding the 
area would result in the extinction of the species. In the following 
sections, we address a number of general issues that are relevant to 
the exclusions we considered.

Benefits of Designating Critical Habitat

Educational Benefits of Critical Habitat
    A benefit of including lands in critical habitat is that the 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the 15 vernal pool species. In general, the educational benefit of 
a critical habitat designation always exists, although in some cases it 
may be redundant with other educational effects. For example, Habitat 
Conservation Plans (HCPs) have significant public input and may largely 
duplicate the educational benefit of a critical habitat designation. 
This benefit is closely related to a second educational benefit: that 
the designation of critical habitat would inform State agencies and 
local governments about areas that could be conserved under State laws 
or local ordinances.
    However, we believe that there would be little additional 
educational benefit gained from the designation of critical habitat for 
the exclusions that we made in the final rules re-evaluating non-
economic and economic exclusions (70 FR 11140, March 8, 2005; 70 FR 
46924, August 11, 2005, respectively) because these areas were included 
in the proposed rule (67 FR 59884, September 24, 2002) as having 
habitat containing the features essential to the conservation of the 
species. Consequently, we believe that the educational benefits are 
already provided, even though these areas are not designated as 
critical habitat. Additionally, the purpose normally served by the 
designation, that of informing State agencies and local governments 
about areas which would benefit from protection and enhancement of 
habitat for the 15 vernal pool species, is already well established 
among State and local governments, and Federal agencies in those areas 
that we excluded from critical habitat in the final rules on the basis 
of other existing habitat management protections such as those on 
National Wildlife Refuges, State protected lands, or local government 
Habitat Conservation Plans.
    The information provided in this section applies to all the 
discussions below concerning the benefits of inclusion and exclusion of 
critical habitat.
Conservation Partnerships on Non-Federal Lands
    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were found almost exclusively on Federal lands (90 to 100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners is 
essential to understanding the status of species on non-Federal lands 
and is necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection.
    Many non-Federal landowners derive satisfaction in contributing to 
endangered species recovery. The Service promotes these private-sector 
efforts through the Department of the Interior's Cooperative 
Conservation philosophy. This philosophy is evident in Service programs 
such as Habitat Conservation Plans (HCPs), Safe Harbor Agreements, 
Candidate Conservation Agreements, Candidate Conservation Agreements 
with Assurances, and conservation challenge cost-share. Many private 
landowners, however, are wary of the possible consequences of 
encouraging endangered species to utilize their property, and there is 
mounting evidence that some regulatory actions by the Federal 
government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability, resulting in anti-
conservation incentives because maintaining habitats that harbor 
endangered species represents a risk to future economic opportunities 
(Main et al. 1999; Brook et al. 2003).
    The Department of the Interior's Cooperative Conservation 
philosophy is the foundation for developing the tools of conservation. 
These tools include conservation grants, funding for Partners for Fish 
and Wildlife Program, the Coastal Program, and cooperative-conservation 
challenge cost-share grants. Our Private Stewardship Grant program and 
Landowner Incentive Program provide assistance to private landowners in 
their voluntary efforts to protect threatened, imperiled, and 
endangered species, including the development and implementation of 
HCPs.
    Conservation agreements with non-Federal landowners (HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
protections for species beyond those available through section 7 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on a view that 
we can achieve greater species conservation on non-Federal land through 
such partnerships than we can

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through coercive methods (61 FR 63854; December 2, 1996).
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7 of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. 
According to some researchers, the designation of critical habitat on 
private lands significantly reduces the likelihood that landowners will 
support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002). The Service believes 
that the judicious use of excluding specific areas of non-federally 
owned lands from critical habitat designations can contribute to 
species recovery and provide a superior level of conservation than 
critical habitat alone.
General Principles of Section 7 Consultations Used in the 4(b)(2) 
Balancing Process
    The most direct, and potentially largest, regulatory benefit of 
critical habitat is that federally authorized, funded, or carried out 
activities require consultation under section 7 of the Act to ensure 
that they are not likely to destroy or adversely modify critical 
habitat. There are two limitations to this regulatory effect. First, it 
only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat. Second, it only limits destruction 
or adverse modification. By its nature, the prohibition on adverse 
modification is designed to ensure those areas that contain the 
physical and biological features essential to the conservation of the 
species or unoccupied areas that are essential to the conservation of 
the species are not eroded. Critical habitat designation alone, 
however, does not require specific steps toward recovery.
    Once consultation under section 7 of the Act is triggered, the 
process may conclude informally when the Service concurs in writing 
that the proposed Federal action is not likely to adversely affect the 
listed species or its critical habitat. However, if the Service 
determines through informal consultation that adverse impacts are 
likely to occur, then formal consultation would be initiated. Formal 
consultation concludes with a biological opinion issued by the Service 
on whether the proposed Federal action is likely to jeopardize the 
continued existence of a listed species or result in destruction or 
adverse modification of critical habitat, with separate analyses being 
made under both the jeopardy and the adverse modification standards. 
For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, but it would not contain any mandatory 
reasonable and prudent measures or terms and conditions. Mandatory 
measures and terms and conditions to implement such measures are only 
specified when the proposed action would result in the incidental take 
of a listed animal or species. Reasonable and prudent alternatives to 
the proposed Federal action would only be suggested when the biological 
opinion results in a jeopardy or adverse modification conclusion.
    We also note that for 30 years prior to the Ninth Circuit Court's 
decision in Gifford Pinchot, the Service combined the jeopardy standard 
with the standard for destruction or adverse modification of critical 
habitat when evaluating Federal actions that affect currently occupied 
critical habitat. However, in Gifford Pinchot the Court ruled that the 
two standards are distinct and that adverse modification evaluations 
require consideration of impacts on the recovery of species. Thus, 
under the Gifford Pinchot decision, critical habitat designations may 
provide greater benefits to the recovery of a species. However, we 
believe the conservation achieved through implementing HCPs or other 
habitat management plans is typically greater than would be achieved 
through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat. Management 
plans commit resources to implement long-term management and protection 
to particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to prevent adverse modification to critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed project. 
Thus, any HCP or management plan that considers enhancement or recovery 
as the management standard will often provide as much or more benefit 
than a consultation for critical habitat designation conducted under 
the standards required by the Ninth Circuit in the Gifford Pinchot 
decision.
    The information provided in this section applies to all the 
discussions below that discuss the benefits of inclusion and exclusion 
of critical habitat in that it provides the framework for the 
consultation process.
Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans From Critical Habitat
    The benefits of excluding lands with HCPs or other approved 
management plans from critical habitat designation include relieving 
landowners, communities, counties, and States of any additional 
regulatory burden that might be imposed by a critical habitat 
designation. Most HCPs and other conservation plans take many years to 
develop and, upon completion, are consistent with the recovery 
objectives for listed species to the extent known that are covered 
within the plan area. Many conservation plans also provide conservation 
benefits to unlisted sensitive species. Imposing an additional 
regulatory review as a result of the designation of critical habitat 
may undermine conservation efforts and partnerships designed to 
proactively protect species to ensure that listing under the Act will 
not be necessary. Designation of critical habitat within the boundaries 
of management plans that provide conservation measures for a species 
could be viewed as a disincentive to those entities currently 
developing these plans or contemplating them in the future, because one 
of the incentives for undertaking conservation is greater ease of 
permitting where listed species are affected. Addition of a new 
regulatory requirement would remove a significant incentive for 
undertaking the time and expense of management planning. In fact, 
designating critical habitat in areas covered by a pending HCP or 
conservation plan could result in the loss of some species' benefits if 
participants abandon the planning process, in part because of the 
strength of the perceived additional regulatory compliance that such 
designation would entail. The time and cost of regulatory compliance 
for a critical habitat designation do not have to be quantified for 
them to be perceived as additional Federal regulatory burden sufficient 
to discourage continued participation in plans targeting listed 
species' conservation.
    A related benefit of excluding lands within management plans from 
critical habitat designation is the unhindered,

[[Page 30283]]

continued ability to seek new partnerships with future plan 
participants including States, counties, local jurisdictions, 
conservation organizations, and private landowners, which together can 
implement conservation actions that we would be unable to accomplish 
otherwise. When critical habitat is designated on a managed area, it 
increases the likelihood that the managers of that area will perceive 
the designation to be an additional regulatory control over their 
management plan. If lands within approved management plan areas are 
designated as critical habitat, it would likely have a negative effect 
on our ability to establish new partnerships to develop and implement 
these plans, particularly plans that address landscape-level 
conservation of species and habitats. By preemptively excluding these 
lands, we preserve our current partnerships and encourage additional 
conservation actions in the future.
    Furthermore, an HCP or Natural Community Conservation Plans (NCCP)/
HCP application must itself be consulted upon. Such a consultation 
would review the effects of all activities covered by the HCP which 
might adversely impact the species under a jeopardy standard, including 
possibly significant habitat modification (see definition of ``harm'' 
at 50 CFR 17.3), even without the critical habitat designation. In 
addition, Federal actions not covered by the HCP in areas occupied by 
listed species would still require consultation under section 7 of the 
Act and would be reviewed for possibly significant habitat modification 
in accordance with the definition of harm referenced above.
    The information provided in this section applies to the discussion 
below regarding the benefits of inclusion and exclusion of critical 
habitat.

Exclusions Under Section 4(b)(2) of the Act

    After consideration under section 4(b)(2) of the Act, the following 
areas of habitat have been excluded from critical habitat for the 15 
vernal pool species: San Joaquin County Multi-Species Habitat 
Conservation Plan; Western Riverside Multiple Species Habitat 
Conservation Plan; Santa Rosa Plateau Ecological Reserve; Warm Springs 
Unit of the Don Edwards National Wildlife Refuge Complex; Kern, San 
Luis, and Sacramento National Wildlife Refuge Complexes; and the 
Coleman National Fish Hatchery Complex; Battle Creek, Big Sandy, 
Grizzly Island, Hill Slough, North Grasslands, and Oroville California 
Department of Fish and Game Wildlife Areas; State-owned lands within 
Allensworth, Boggs Lake, Butte Creek Canyon, Calhoun Cut, Carrizo 
Plains, Dales Lake, Fagan Marsh, Phoenix Field, San Joaquin River, 
Stone Corral, and Thomes Creek Ecological Reserves; Carrizo Plain 
National Monument; Mechoopda Tribal lands; and other areas where the 
designation of critical habitat has been determined to show a 
disproportionately high economic cost (See Economics section below). We 
believe that: (1) These lands' value for conservation has been 
addressed by existing protective actions or (2) they are appropriate 
for exclusion pursuant to the ``other relevant factor'' provisions of 
section 4(b)(2) of the Act. A detailed analysis of our exclusion of 
these lands under section 4(b)(2) of the Act is provided in the 
paragraphs that follow.

Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act

    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides the same or better level of protection from adverse 
modification or destruction than that provided through a consultation 
under section 7 of the Act; (2) there is a reasonable expectation that 
the conservation management strategies and actions will be implemented 
based on past practices, written guidance, or regulations; and (3) the 
plan provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology. We believe that 
the San Joaquin County Multiple-Species Habitat Conservation Plan and 
the Western Riverside Multiple Species Habitat Conservation Plan 
fulfill these criteria, and we excluded non-federal lands covered by 
these plans that provide for the conservation of the 15 vernal pool 
species.

San Joaquin County Multiple-Species Habitat Conservation Plan (MSCP)

    The San Joaquin County Multi-Species Habitat Conservation Plan 
(SJMSCP) encompasses all of San Joaquin County with the exception of 
Federally-owned lands and the following specific projects: Tracy Hills, 
the American River Water Resources Investigation Project, Folsom South 
Canal Connection of the East Bay Municipal Utility District 
Supplemental Water Supply Program, and the South County Surface Water 
Supply Project. The SJMSCP identifies the vernal pool fairy shrimp and 
the vernal pool tadpole shrimp as covered species. The SJMSCP also 
identifies and classifies areas where growth and development are 
expected to occur as build-out areas. A portion of one of these build-
out areas overlaps with the San Joaquin Unit 18 for vernal pool fairy 
shrimp. The SJMSCP limits the amount of vernal pool loss to 15 wetted 
ac (6 ha) per year up to a maximum cap of 707 wetted ac (286 ha) and 
5,894 ac (2,385 ha) of vernal pool grassland over the 50-year life of 
the plan. Additionally, the SJMSCP requires the preservation of 2 acres 
and creation of 1 acre of vernal pool habitat for every 1 acre that is 
impacted; resulting in a total of 3 acres of vernal pool preserves for 
each impacted acre. Preserves include both wetted surface area and 
upland grasslands surrounding vernal pools, thereby protecting both the 
vernal pools and their watersheds. The creation component of this 
mitigation emphasizes restoration of pre-existing vernal pools, 
wherever feasible. The SJMSCP has been finalized and includes 
participants from seven cities; the County of San Joaquin; the San 
Joaquin Council of Governments; various water districts within the 
County; the California Department of Transportation; East Bay Municipal 
Utility District; and the San Joaquin Area Flood Control District. The 
SJMSCP is a subregional plan under the State's Natural Community 
Conservation Planning (NCCP) program and was developed in cooperation 
with California Department of Fish and Game (CDFG). Within the county-
wide planning area of the SJMSCP, approximately 71,837 ac (29,071 ha) 
of diverse habitats are proposed for conservation. The proposed 
conservation of 71,837 ac (29,071 ha) will compliment other existing 
natural and open space areas that are already conserved through other 
means (e.g., State Parks, USFWS, and County Park lands). For a complete 
discussion of the SJMSCP, please refer to our August 6, 2003 (68 FR 
46684) and March 8, 2005 (70 FR 11140) final designations.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the SJMSCP and have determined that 
the benefits of excluding the 10 ac (4 ha) of designated critical 
habitat for vernal pool fairy shrimp protected by the SJMSCP outweigh 
the benefits of maintaining these lands as critical habitat. As 
discussed above in detail and outlined below, the SJMSCP will provide 
for significant preservation and management of habitat for vernal pool 
fairy shrimp and other listed vernal pool species. Implementation of 
the SJMSCP will help reach the recovery goals for

[[Page 30284]]

each of the species. Additionally, by excluding critical habitat for 
the listed species, we are enhancing our relationship with these 
conservation partners and facilitating future conservation 
partnerships.
    Furthermore, implementation of the SJMSCP will contribute to the 
recovery of vernal pool fairy shrimp and other listed vernal pool 
species under the Act in part by maintaining and managing the 
geomorphic and ecological processes of the landscape in large, well-
placed blocks of habitat where the vernal pool fairy shrimp are found 
within the SJMSCP such that vernal pool fairy shrimp are likely to be 
conserved and therefore persist indefinitely. Since the PCEs required 
by the listed vernal pool fairy shrimp are similar, the conservation 
measures outlined in the SJMSCP will benefit both vernal pool fairy 
shrimp and other listed vernal pool species. These conservation 
measures include limiting the amount of vernal pool impact to 15 wetted 
ac (6 ha) per year up to a maximum cap of 707 wetted ac (286 ha) and 
5,894 ac (2,385 ha) of vernal pool grassland over the 50-year life of 
the plan and requiring preservation of 2 acres and creation of 1 acre 
of vernal pool habitat for every 1 acre that is impacted, resulting in 
a total of 19,803 acres of vernal pool preserves. Preserves include 
both wetted surface area and upland grasslands surrounding vernal pools 
and protecting their watersheds. The creation component of this 
mitigation emphasizes restoration of pre-existing vernal pools, 
wherever feasible. The collection of preconstruction survey information 
is required to ensure that vernal pool compensation habitat reflects 
vernal pool types that are impacted. Measures to minimize take include 
conducting preconstruction surveys, excavating, leveling, or filling 
pools only after they have completely dried, and removing the topmost 
soil layer from pools prior to impacts for possible use as inoculum of 
future created vernal pool habitats. Protection and management of the 
PCEs within the SJMSCP occurs primarily through the formation of vernal 
pool preserves that protect habitat in perpetuity and maintain the 
physical and ecological characteristics of occupied habitat within the 
vernal pool preserves. Designation of critical habitat alone does not 
achieve recovery or require management of those lands identified in the 
critical habitat rule; however, management and habitat conservation 
associated with implementation of the SJMSCP will help provide for 
recovery of vernal pool species, even though we are not designating 
critical habitat in this area. We believe that the recovery benefits of 
excluding these lands and implementing the SJMSCP outweighs the 
recovery benefits of including these lands in critical habitat.
    We also believe that the benefits of implementation of the SJMSCP 
outweigh the regulatory benefits of designation of critical habitat 
under section 7 of the Act. The Service has completed section 7 
consultation on the SJMSCP (1-1-00-F-231) and should the lands covered 
by the SJMSCP be designated as critical habitat, consultations under 
section 7 would only commit Federal agencies to prevent adverse 
modification to the critical habitat and not require the conservation, 
long-term benefits, positive improvements, or enhancement of habitat 
described in the SJMSCP. Therefore, implementation of the SJMSCP that 
provides for the conservation of these species provides more benefit 
than would critical habitat designation of these lands for these 
species.
    We have reviewed and evaluated the proposed exclusion of the 
portion of Unit 18 within the SJMSCP from the final designation of 
critical habitat, and have determined that the benefits of excluding 
the portion of Unit 18 within the SJMSCP outweigh the benefits of 
including these lands. The SJMSCP contains limits to conversions of 
vernal pool habitats and requires the collection of preconstruction 
survey information to ensure that vernal pool compensation reflects 
pool types that are impacted. Additionally, the SJMSCP contains a 
variety of measures to avoid, minimize, and mitigate for effects on 
listed vernal pool species. Mitigation measures to compensate for 
habitat conversion require 1:1 creation and 2:1 preservation for vernal 
pool habitats. Measures to minimize take include conducting 
preconstruction surveys and filling, excavating, or leveling vernal 
pools only after they have completely dried, and taking the topmost 
soil layer from pools prior to impacts for possible use in inoculation 
of future created vernal pool habitats. Of the 42,073 ac (17,026 ha) of 
suitable habitat for vernal pool crustaceans identified in the SJMSCP, 
only 707 wetted ac (286 ha) and 5,894 ac (2,385 ha) of vernal pool 
grassland are proposed for conversion. These specific conservation 
actions and management for listed vernal pool species and their PCEs as 
well as the general ecological benefits of large scale HCP planning 
exceed any conservation value provided as a result of any regulatory 
protections that may be afforded through a critical habitat 
designation.
    The exclusion of these lands from critical habitat will also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents in the development of the SJMSCP. 
The benefits of excluding these lands from critical habitat outweigh 
the minimal benefits of including these lands as critical habitat, 
including the educational benefits of critical habitat through 
informing the public of areas important for the long-term conservation 
of this species, because these educational benefits can still be 
accomplished from materials provided on our Web site (https://
www.fws.gov/sacramento). Further, many educational benefits of critical 
habitat designation have already been achieved through the overall 
designation and notice and public comment, and will continue to occur 
whether or not this particular unit were to be designated.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of a portion of Unit 18 from 
the final designation of critical habitat will result in the extinction 
of the vernal pool fairy shrimp. Overall, this area represents a small 
portion of the species range and the conservation measures as outlined 
in the SJMSCP greatly exceed those that may be afforded by the 
designation of critical habitat.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of these lands from critical habitat leaves these protections 
unchanged from those that would exist if the excluded areas were 
designated as critical habitat.

Western Riverside Multiple Species Habitat Conservation Plan (MSHCP)

    The Western Riverside MSHCP has been finalized since the issuance 
of the August 6, 2003, rule. The Western Riverside MSHCP includes 
participants from 14 cities; the County of Riverside, including the 
County Flood Control and Water Conservation District; the County Waste 
Department; the California Department of Transportation; and the 
California Department of Parks and Recreation. The Western Riverside 
MSHCP is a subregional plan under the State's Natural Community 
Conservation Planning (NCCP) program and was developed in cooperation 
with California Department of Fish and Game (CDFG). Within the 1.26 
million-ac (510,000-ha) planning area of the

[[Page 30285]]

MSHCP, approximately 153,000 ac (62,000 ha) of diverse habitats are 
proposed for conservation. The proposed conservation of 153,000 ac 
(62,000 ha) will compliment other existing natural and open space areas 
that are already conserved through other means (e.g., State Parks, 
USFS, and County Park lands). For a complete discussion of this HCP, 
please refer to our August 6, 2003 (68 FR 46684) and March 8, 2005 (70 
FR 11140) final rules. The strategy implemented by the Western 
Riverside County MSHCP is to conserve at least 3,123 ac (1,264 ha) of 
habitat in three core areas representing the three known populations of 
vernal pool fairy shrimp in Riverside County. Conservation in this area 
will cover units 34 and 35 and include large blocks of habitat for the 
vernal pool fairy shrimp. In addition, other areas identified as 
important to the species will be conserved through the implementation 
of prescriptions set forth in the plan. The MSHCP requires that prior 
to construction activities, wetland habitats be identified and 
surveyed, and if significant impacts are proposed in occupied habitat, 
that 90 percent of the occupied portions of the site be conserved and 
therefore continue to provide for the long-term conservation of the 
vernal pool fairy shrimp.
    The Skunk Hollow mitigation bank (the official title is the Barry 
Jones Wetland Mitigation Bank) and the Santa Rosa Plateau Preserve are 
within the planning area of the Western Riverside County MSHCP. Both of 
these areas are conserved as part of the Western Riverside County 
MSHCP. The management actions undertaken as part of the Western 
Riverside County MSHCP benefit the endangered Riverside fairy shrimp, 
threatened Navarretia fossalis, and the endangered Orcuttia 
californica, which are included as covered species under this regional 
HCP. The management actions will also provide equal conservation 
benefits for the vernal pool fairy shrimp.
    The Skunk Hollow vernal pool basin (Unit 35) consists of a single, 
large vernal pool and associated watershed in western Riverside County. 
This unit and vernal pool basin are covered by the Western Riverside 
County MSHCP. Several federally listed species have been documented as 
occurring in the Skunk Hollow vernal pool basin. These include the 
vernal pool fairy shrimp (Western Riverside County MSHCP 2003, pp. C18-
26), the Riverside fairy shrimp (Service 2001, p. 29389), Navarretia 
fossalis, and Orcuttia californica (Service 1998, p. 9). The vernal 
pool complex and associated watershed are also currently protected as 
part of a reserve established within an approved wetland mitigation 
bank in the Rancho Bella Vista HCP area, and as part of the 
conservation measures contained in the Assessment District 161 
Subregional HCP (AD161 HCP), all of which have been incorporated into 
the Western Riverside County MSHCP. Although the Skunk Hollow does not 
identify the vernal pool fairy shrimp as a covered species, it does 
list the endangered Riverside fairy shrimp as a covered species and 
protects all the vernal pool habitat within the area, as well as the 
PCEs upon which the species relies. In this case, since species which 
rely on the same ecosystem are the target of the HCP and mitigation 
bank, we are able to conclude that the plan will provide the necessary 
management to protect the vernal pools. In addition, since the entire 
habitat area is addressed under the HCP, preserve, and mitigation bank 
areas, and not just habitat with a federal nexus (as is the case with 
critical habitat), the existing management already provides more 
protection than can be provided by a critical habitat designation.
    The Western Riverside County MSHCP also encompasses lands within 
the Santa Rosa Plateau Ecological Reserve (SRPER) (Unit 34 for vernal 
pool fairy shrimp), an area that covers approximately 8,300 ac (3,360 
ha) near the town of Murrieta, California. The SRPER is situated on a 
large mesa composed of basaltic and granitic substrates and contains 
one of the largest vernal pool complexes remaining in southern 
Riverside County. Several endemic vernal pool species are known to 
occur within the complex, including the vernal pool fairy shrimp, 
Riverside fairy shrimp, Santa Rosa fairy shrimp (Linderiella 
santarosae), Orcuttia californica, Brodiaea filifolia (Threadleaved 
brodiaea), and Eryngium aristulatum var. parishii (San Diego button-
celery).
    SRPER is owned and managed by CDFG. As a signatory to the 
Implementing Agreement for the Western Riverside County MSHCP, CDFG 
oversees the SRPER consistent with the conservation management scheme 
agreed to by all cooperating agencies and signatories. The CDFG has a 
broad authority to protect lands and conserve species (Fish and Game 
Code, sections 2700 et seq.)

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the Western Riverside County MSHCP 
and have determined that the benefits of excluding the 10,214 ac (4,134 
ha) of designated critical habitat for the vernal pool and Riverside 
fairy shrimp protected, directly and indirectly, by the Western 
Riverside County MSHCP outweigh the benefits of maintaining these lands 
as critical habitat. Although Riverside fairy shrimp is not addressed 
by the Western Riverside County MSHCP, it is anticipated that this 
species will benefit from the Western Riverside County MSHCP because 
this species occurs in areas also occupied by the listed vernal pool 
fairy shrimp, which is protected under the Western Riverside County 
MSHCP. Therefore, we believe that Riverside fairy shrimp will directly 
receive protection under the Western Riverside County MSHCP. We have 
determined that the management and protections afforded the vernal pool 
fairy shrimp in the Western Riverside County MSHCP are adequate for the 
long-term conservation of these species. The Western Riverside County 
MSHCP provides protection for the affected vernal pool complex and its 
associated watershed in perpetuity. Therefore it addresses the primary 
conservation needs of the species by protecting the ecosystem upon 
which it relies. As discussed above in detail and outlined below, the 
Western Riverside County MSHCP will provide for significant 
preservation and management of habitat for vernal pool fairy shrimp and 
Riverside fairy shrimp. Implementation of the Western Riverside County 
MSHCP will help reach the recovery goals for each of the species. 
Additionally, by excluding critical habitat on these lands for the 
listed species, we are enhancing our relationship with these 
conservation partners and facilitating future conservation partnerships 
by providing an incentive to develop and complete existing and future 
habitat conservation measures for federally listed species.
    Furthermore, implementation of the Western Riverside County MSHCP 
will contribute to the recovery of vernal pool fairy shrimp and 
Riverside fairy shrimp under the Act in part by maintaining and 
managing the geomorphic and ecological processes of the landscape in 
large, well-placed blocks of habitat where these species are found 
within the Western Riverside County MSHCP such that the vernal pool 
fairy shrimp and Riverside fairy shrimp are likely to be conserved and 
therefore persist indefinitely. Since the PCEs required by the listed 
vernal pool fairy shrimp and Riverside fairy shrimp are similar, the 
conservation measures outlined in the Western Riverside County MSHCP 
will benefit these listed species. The strategy implemented by the 
Western Riverside

[[Page 30286]]

County MSHCP is to conserve at least 3,123 ac (1,264 ha) of habitat in 
three core areas (representing the three known populations in Riverside 
County) comprised of large blocks of habitat for the vernal pool fairy 
shrimp. Designation of critical habitat would not achieve recovery, by 
itself, or require management of these lands. We believe that the 
recovery benefits of excluding these lands and implementing the Western 
Riverside County MSHCP outweighs the recovery benefits of including 
these lands in critical habitat.
    We also believe that the benefits of implementation of the Western 
Riverside County MSHCP outweigh the regulatory benefits of designation 
of critical habitat under section 7 of the Act. The Service has 
completed section 7 consultation on the Western Riverside County MSHCP 
and should the critical habitat remain in place, consultations under 
section 7 would only commit Federal agencies to prevent adverse 
modification to the critical habitat and not require the conservation, 
long-term benefits, positive improvements, or enhancement of habitat 
described in the Western Riverside County MSHCP. Therefore, 
implementation of the Western Riverside County MSHCP that provides for 
the conservation of these species provides more benefit than would the 
critical habitat designation of these lands for these species.

Exclusion Will Not Result in Extinction of the Species

    We do not believe that the exclusion of Units 34 and 35 from the 
final designation of critical habitat will result in the extinction of 
the vernal pool fairy shrimp. The strategy implemented by the Western 
Riverside County MSHCP is to conserve at least 3,123 ac (1,264 ha) of 
habitat in three core areas (representing the three known populations 
in Riverside County) comprised of large blocks of habitat for the 
vernal pool fairy shrimp. In addition, other areas identified as 
important to the species will be conserved through the implementation 
of prescriptions set forth in the plan. Wetland habitats will be 
identified and surveyed, and, if significant impacts are proposed and 
survey results are positive, 90 percent of the occupied portions of the 
property that provide for the long-term conservation value for the 
vernal pool fairy shrimp will be conserved.
    The jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct. The 
exclusion of critical habitat leaves these protections unchanged from 
those that would exist if the excluded areas were to be designated as 
critical habitat.

Relationship of Critical Habitat to National Wildlife Refuge and 
National Fish Hatchery Lands--Exclusions Under Section 4(b)(2) of the 
Act

    We have determined that proposed critical habitat units on the Don 
Edwards, Kern, San Luis, and Sacramento National Wildlife Refuge 
Complexes, and the Coleman National Fish Hatchery Complex, warrant 
exclusion pursuant to section 4(b)(2) of the Act because the benefits 
of excluding these lands from final critical habitat outweigh the 
benefits of their inclusion. For a complete discussion of these 
National Wildlife Refuges and National Fish Hatchery Lands, please 
refer to our August 6, 2003 (68 FR 46684) and March 8, 2005 (70 FR 
11140) final designations. National Wildlife Refuge and National Fish 
Hatchery lands are already managed for the conservation of wildlife, 
and the purpose of these lands is already to preserve natural resource 
values. Below we will discuss each of the Refuges and Fish Hatcheries 
separately, but we are providing one balancing discussion for all 
Service-owned and -managed lands.
Don Edwards National Wildlife Refuge Complex
    The Warm Spring Unit of the Don Edwards National Wildlife Refuge 
Complex has developed a draft Habitat Management Plan (HMP) for vernal 
pool species and grassland ecosystem conservation. Approximately 275 ac 
(111 ha) of vernal pool grasslands occur on the Warm Springs Unit. An 
intra-Service section 7 consultation was conducted on the HMP, and a 
concurrence memorandum was completed in June 2003 (Service file 1-1-03-
I-1852), stating that the management activities would not likely 
adversely affect the vernal pool tadpole shrimp or Lasthenia conjugens 
(Contra Costa goldfields). The HMP is expected to be finalized in 2008, 
with the completion of the Comprehensive Conservation Plan (CCP). The 
HMP establishes various habitat goals and objectives including habitat 
enhancement, restoration, and monitoring for vernal pool species. The 
HMP also establishes guidelines for management activities such as 
grazing, land disturbance activities, pesticide application, exotic 
plant removal, and water management for the refuge. These and other 
activities, when carried out as identified in the HMP, will assist in 
enhancing and conserving the vernal pool species and the vernal pool 
grassland ecosystem on the refuge.
Kern National Wildlife Refuge Complex
    The Kern National Wildlife Refuge Complex (Kern and Pixley National 
Wildlife Refuges) has an approved and signed Comprehensive Conservation 
Plan (CCP) (Service 2004a, pp 109) that provides for the protection and 
management of all trust resources, including federally listed species 
and sensitive natural habitats. One goal of the CCP is to protect, 
preserve, and restore alkali sink, alkali playa, Northern Claypan 
vernal pool, and grassland habitats within the refuge for the 
conservation of vernal pool species and grassland ecosystems. To reach 
this goal, the approved CCP provides for implementing grazing, 
prescribed burning, monitoring, and status survey programs. The CCP for 
the Kern National Wildlife Refuge Complex has been completed, and the 
associated biological opinion concluded that its implementation would 
not jeopardize the continued existence of these species (Service 2004, 
p. 4). In addition, the Kern National Wildlife Refuge Complex will 
protect vernal pool and other wetland resources through willing seller 
acquisition, conservation easements, and partnerships to acquire 
additional natural lands within the approved refuge boundary to provide 
connectivity between units (Service 2004a, p 14).
San Luis National Wildlife Refuge Complex
    Several federally listed species have been documented on the San 
Luis National Wildlife Refuge Complex (San Luis NWR), including the 
vernal pool fairy shrimp, vernal pool tadpole shrimp, Conservancy fairy 
shrimp, Chamaesyce hooveri (Hoover's spurge), Neostapfia colusana 
(Colusa grass), and the California tiger salamander (Ambystoma 
californiense). The San Luis NWR has developed and implemented several 
management activities to provide for the conservation of these species, 
including: (1) Managing and providing habitat for endangered or 
sensitive species; (2) maintaining and enhancing the overall 
biodiversity associated with the existing mix of vegetative 
communities; and (3) providing an area for compatible, management-
oriented research and education/interpretation and recreational 
programs which may include observation, photography, or hunting. 
Building upon the concepts originally outlined in the San Joaquin Basin 
Action Plan, a detailed habitat restoration plan has been developed 
specifically for the West Bear Creek

[[Page 30287]]

Unit. Fish and Wildlife Service staff at San Luis NWR directed all 
aspects of the project planning, design, and implementation. The 
habitat restoration plan included construction of wetlands including 
vernal pools, and planting and restoration of native grassland and 
woody riparian habitat. In addition, the United States Bureau of 
Reclamation, the U.S. Fish and Wildlife Service, and the California 
Department of Fish and Game, under a cooperative agreement called the 
San Joaquin Basin Action Plan, are in the process of jointly developing 
a habitat acquisition and wetland enhancement project, including vernal 
pools, on approximately 23,500 ac (9,510 ha) of lands within the 
Northern San Joaquin River Basin.
Sacramento National Wildlife Refuge Complex
    The Sacramento National Wildlife Refuge Complex (Sacramento NWR) 
develops an annual Habitat Management Plan for each Refuge within the 
complex which details actions to be implemented for the year. The plan 
outlines various resource management and enhancement activities such as 
noxious weed removal, mowing, and water management for each unit within 
each refuge and identifies sensitive species concerns if they are 
present. The refuge also undertakes annual surveying and monitoring of 
the vernal pool resources on each refuge in the complex. A formal 
biological opinion was completed for refuge activities in April 1999 
(Service file 1-1-98-F-13), stating that the management activities 
would not jeopardize the Conservancy fairy shrimp, vernal pool fairy 
shrimp, vernal pool tadpole shrimp, Orcuttia pilosa (hairy Orcutt 
grass), Tuctoria greenei (Greene's tuctoria), and Chamaesyce hooveri. 
The Sacramento NWR is also in the process of developing a Comprehensive 
Conservation Plan (CCP). The CCP is expected to be drafted by August 
2007 and finalized by August 2008.
Coleman National Fish Hatchery
    The Coleman National Fish Hatchery (Coleman NFH) owns approximately 
165 ac (67 ha) of land along Battle Creek in Shasta and Tehama 
Counties, California. Approximately 13 ac (5 ha) of grassland habitat 
were proposed as critical habitat for the vernal pool tadpole shrimp 
and Orcuttia tenuis (slender Orcutt grass). No vernal pools or vernal 
pool species occur on the hatchery lands. However, the grasslands may 
provide detritus and assist in maintaining the hydrologic functioning 
of the vernal pools and providing connectivity for the vernal pool 
resources in the area. The focus of the Coleman NFH is to provide 
spawning and rearing facilities for threatened or endangered salmonid 
species. The Coleman NFH currently does not have any plans to disturb 
or alter the areas identified as critical habitat in the proposed rule 
(67 FR 59884, September 24, 2002). Any activities that may impact these 
areas would be subject to intra-Service section 7 consultation.

Benefits of Exclusion of Refuge and Hatchery Lands Outweigh the 
Benefits of Inclusion

    We have reviewed and evaluated the National Wildlife Refuge and 
National Fish Hatchery complexes named above and have determined that 
the benefits of excluding the 42,914 ac (17,367 ha) of proposed 
critical habitat for the vernal pool species protected, directly and 
indirectly, within these areas outweigh the benefits of designating 
these lands as critical habitat. Critical habitat designation provides 
little gain in the way of increased recognition for special habitat 
values on lands that are expressly managed to protect and enhance those 
values. All of the refuges described above have or are developing 
comprehensive resource management plans that will provide for 
protection and management of all public trust resources, including 
federally listed species and sensitive natural habitats. These plans, 
and many of the management actions undertaken to implement them, must 
also complete consultation under section 7 of the Act. Therefore, any 
federal activity that is consistent with the terms of the CCP would be 
very unlikely to have an adverse effect on the primary constituent 
elements such that the habitat could no longer serve the intended 
conservation role for the species.
    We believe that the benefit of including these lands in critical 
habitat is low because they already are publicly owned and managed to 
protect and enhance unique and important natural resource values. In 
addition, by designating these lands the Service would be required to 
conduct internal consultations on activities to determine whether they 
adversely modify critical habitat. This extra and unnecessary 
regulatory process would require that funding be diverted from the 
management of the Refuge and Hatchery resources. The Service believes 
that the allocation of taxpayer funds to actions that more directly 
benefit species on the