Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for the Coastal California Gnatcatcher (Polioptila californica californica), 72010-72213 [07-6003]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 72, Number 243 (Wednesday, December 19, 2007)]
[Rules and Regulations]
[Pages 72010-72213]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-6003]



[[Page 72009]]

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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; Revised Designation of 
Critical Habitat for the Coastal California Gnatcatcher (Polioptila 
californica californica); Final Rule

Federal Register / Vol. 72, No. 243 / Wednesday, December 19, 2007 / 
Rules and Regulations

[[Page 72010]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AV38


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

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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

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

ADDRESSES: Comments and materials received, as well as supporting 
documentation used in the preparation of this final rule, will be 
available for public inspection, by appointment, during normal business 
hours, at the Carlsbad Fish and Wildlife Office, U.S. Fish and Wildlife 
Service, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone: 760/
431-9440). The final rule, draft economic analysis and associated 
addendum (dated September 14, 2007), and maps are available on our Web 
site at https://www.fws.gov/Carlsbad.

FOR FURTHER INFORMATION CONTACT: Field Supervisor, Carlsbad Fish and 
Wildlife Office, at the above address (telephone: 760/431-9440; 
facsimile 760/431-5901). For information about Ventura and northwestern 
Los Angeles Counties, contact Field Supervisor, Ventura Fish and 
Wildlife Office, U.S. Fish and Wildlife Service, 2493 Portola Road, 
Suite B, Ventura, CA 93003 (telephone: 805/644-1766; facsimile 805/644-
3958). If you use a telecommunications device for the deaf (TDD), call 
the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

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

Species Distribution

    The coastal California gnatcatcher (Polioptila californica 
californica) is a member of the old-world warbler and gnatcatcher 
family Sylviidae (AOU 1998. p. 3). This species occurs primarily in or 
near vegetation categorized as sage scrub. Within the United States, 
this species is restricted to coastal southern California from Ventura 
and San Bernardino Counties, south to the Mexican border (AOU 1957, p. 
451; Atwood 1991, pp. 130-131; Garrett and Dunn 1981, p. 292). An 
evaluation of the historic range of the coastal California gnatcatcher 
indicates that about 41 percent of its latitudinal distribution is 
within the United States and about 59 percent is within Baja 
California, Mexico (Atwood 1990, p. 6). An analysis based on 
elevational limits associated with coastal California gnatcatcher 
locality records found that a significant portion (65 to 70 percent) of 
the species' historic range may have been located in southern 
California rather than Baja California, Mexico (Atwood and Bolsinger 
1992, p. 159). Please see ``Primary Constituent Elements'' section 
below for a detailed discussion of the habitat requirements of the 
coastal California gnatcatcher.
    The species was listed as threatened on March 30, 1993, because of 
habitat loss and fragmentation resulting from urban and agricultural 
development (58 FR 16742). Aside from habitat loss and fragmentation, 
other management issues concern fire, nonnative plants, and predation 
(Mock 2004, pp. 7-8).

Previous Federal Actions

    On October 24, 2000, we published a final rule designating 
approximately 513,650 ac (207,890 ha) of land in portions of Los 
Angeles, Orange, Riverside, San Bernardino, and San Diego Counties as 
critical habitat for the coastal California gnatcatcher (65 FR 63680). 
Following the publication of the final rule, several lawsuits were 
filed against the Service by multiple parties (collectively referred to 
as Plaintiffs), including the Natural Resources Defense Council (NRDC); 
Building Industry Association of Southern California; National 
Association of Home Builders; Foothill/Eastern Transportation Corridor; 
and Rancho Mission Viejo, L.L.C. (NRDC v. U.S. Dept. of Interior, CV-
99-2496 (C.D.Cal., filed 12/20/00); Building Industry Association of 
Southern California et al. v. Norton, CV 01-7028 (D.C.C., filed 1/17/
01), and Rancho Mission Viejo L.L.C. v. Babbitt, CV 01-8412 (D.D.C. 
filed 12/28/00)), challenging the critical habitat designation for the 
coastal California gnatcatcher. On June 11, 2002, the U.S. District 
Court for the Central District of California granted our request for a 
remand of the coastal California gnatcatcher critical habitat 
designation so that we could reconsider the economic impact of 
designating any particular area as critical habitat. The Court ordered 
us to submit a new proposed rule to the Federal Register by April 11, 
2003.
    We published a proposed rule to revise critical habitat for the 
coastal California gnatcatcher in the Federal Register on April 24, 
2003, that included approximately 495,795 ac (200,595 ha) of land in 
Ventura, Los Angeles, Orange, Riverside, San Bernardino, and San Diego 
Counties (68 FR 20228). As part of the April 24, 2003 proposed rule, we 
also announced and sought comment on our review of the current listing 
classification of the coastal California gnatcatcher as a subspecies 
under the Act and its potential reclassification as a distinct 
population segment (DPS). We accepted public comments on the proposed 
revision of critical habitat and the listing classification until June 
23, 2003.
    On April 8, 2004 (69 FR 18516), we published a notice in the 
Federal Register announcing: (1) The availability of the draft economic 
analysis (DEA) of the proposed revised designation for public review 
(dated February 24, 2004); (2) the reopening of the public comment 
period on the revised proposed rule; and (3) the scheduling of public 
hearings on the proposed revised critical habitat

[[Page 72011]]

designation and DEA for the coastal California gnatcatcher. We held 
public hearings on April 29, 2004, from 1 p.m. to 3 p.m. and from 6 
p.m. to 8 p.m. in Carlsbad, California. The second public comment 
period closed on May 10, 2004. During the reopened comment period and 
the public hearings announced in the April 8, 2004, Federal Register, 
we requested comments and information applicable only to proposed 
revised critical habitat designation and the associated DEA. We did not 
ask for additional public comment on the listing classification notice.
    The Service initiated work on the final revised critical habitat 
rule and listing classification review for the coastal California 
gnatcatcher, but because of other court-ordered priorities we did not 
complete these tasks. On February 8, 2007, a motion was filed by the 
Plaintiffs requesting the Court to direct us to finalize a revised 
critical habitat designation for the coastal California gnatcatcher. We 
reached an agreement with the Plaintiffs to complete a final 
designation on or before November 1, 2007. We sought and were granted 
an extension from plaintiffs of the November 1, 2007, deadline to 
December 3, 2007. On April 3, 2007, we published a notice in the 
Federal Register announcing the reopening of the public comment period 
for the April 24, 2003, proposed rule (68 FR 20228), and we accepted 
comments and information until May 3, 2007 (72 FR 15857). As with the 
April 8, 2004, notice, this April 3, 2007, notice specifically 
requested information only on critical habitat and the associated 
February 24, 2004, DEA, not the listing classification. We stated in 
the April 3, 2007, notice our intent to publish a listing 
classification determination for the coastal California gnatcatcher at 
a later date, separate from the critical habitat designation.

Summary of Comments and Recommendations

    As discussed in the ``Previous Federal Actions'' section above, we 
have opened three public comment periods associated with the 2003 
proposed rule to revise critical habitat for the coastal California 
gnatcatcher, the second and third comment periods of which also sought 
public comment on the associated DEA: April 24, to June 23, 2003 (68 FR 
20228); April 8 to May 10, 2004 (69 FR 18516); and April 3 to May 3, 
2007 (72 FR 15857). During these comment periods, we requested all 
interested parties to submit comments or information related to the 
proposed revised critical habitat designation, unit boundaries, species 
occurrence information and distribution, land use designations that may 
affect critical habitat, potential economic effects of the revised 
proposed designation, benefits associated with critical habitat 
designation, areas considered but not proposed for designation, and the 
associated rationale for the non-inclusion/exclusion of these areas, 
and methods used to designate critical habitat.
    We informed all appropriate entities of the opening of these 
comment periods, including State and Federal agencies, County 
governments, elected officials, and other interested parties through 
telephone calls, letters, and news releases sent by facsimile, by U.S. 
mail, and/or by electronic mail. During the April 24 to June 23, 2003, 
comment period, we also invited public comment through the publication 
of notices in the following newspapers: Los Angeles Times, Orange 
County Register, The Press-Enterprise, San Bernardino Sun, and the San 
Diego Union-Tribune. During the April 8 to May 10, 2004, comment 
period, we announced the date and times of two public hearings that 
were to be held on the April 24, 2003, proposed revised critical 
habitat designation and DEA. Hearings were held on April 29, 2004, from 
1 p.m. to 3 p.m. and from 6 p.m. to 8 p.m. in Carlsbad, California. 
Transcripts of these hearings are available for inspection (see FOR 
FURTHER INFORMATION CONTACT section above).
    We received a total of 117 comment letters from Federal, State, and 
local agencies, private organizations, and individuals during the three 
comment periods. We reviewed all comments for substantive issues and 
new information regarding critical habitat or the coastal California 
gnatcatcher. We grouped similar comments into general issue categories 
relating to the proposed revised critical habitat designation and the 
associated DEA, and we identify them below. Substantive comments and 
issues raised in the public comment letters or at the hearings have 
either been incorporated directly into this final rule or are addressed 
below.

Peer Review Comments

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

Public Comments and Comments From Other Federal Agencies

Issue 1: Biological Issues

    Comment 1: Some commenters suggest that we did not use the ``best 
available science'' or that the information we used is outdated or 
flawed. These commenters believe that use of flawed data incorrectly 
influenced where we identify proposed critical habitat, resulting in 
either the inclusion of too much land in proposed critical habitat or 
the omission of areas that we should have included in the proposed 
critical habitat designation. Other commenters believe that we did not 
describe the analytical process used to identify critical habitat with 
enough detail to allow the public to review the rationale for inclusion 
of specific parcels of land.
    Our Response: Section 4(b) of the Act; our Policy on Information 
Standards Under the Endangered Species Act, published in the Federal 
Register on July 1, 1994 (59 FR 34271); and Section 515 of the Treasury 
and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658) and the associated Information Quality Guidelines 
issued by us, provide criteria, establish procedures, and provide 
guidance to ensure that decisions made by us represent the best 
scientific and commercial data available. They require our biologists, 
to the extent consistent with the Act and with the use of the best 
scientific and commercial data available, to use primary and original 
sources of information as the basis for recommendations to designate 
critical habitat. As such, we based the proposed revised critical 
habitat designation for the coastal California gnatcatcher on the best 
available peer-reviewed published literature, gray literature (non-
published or non-peer-reviewed survey or research reports), survey 
information, and vegetation data. We incorporated site specific survey 
information and vegetation data into our Geographic Information System 
(GIS) layers and used that as the basis for the revised

[[Page 72012]]

critical habitat proposal. Given the scale of the designation and 
resource limitations, it was not possible to provide a parcel-by-parcel 
justification of lands included in the proposed revised designation. 
However, we have attempted to clarify our justification for and 
methodology used in the delineation of the critical habitat boundaries 
in this revised final rule.
    Comment 2: Some commenters suggested that we should not identify 
the entire range of the coastal California gnatcatcher as critical 
habitat. Other commenters suggested that we did not adequately 
distinguish between occupied, unoccupied, and linkage areas when 
delineating critical habitat.
    Our Response: Critical habitat is defined in section 3 of the Act 
as (i) the specific areas within the geographical area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) that may require special 
management considerations or protection; and (ii) specific areas 
outside the geographic area occupied by a species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. In developing the revised proposed rule, 
we considered the geographical area occupied by the species at the time 
of listing, and within that broad geographical area, we identified 
those areas that, based on the best scientific and commercial data 
available, contain physical and biological features essential to the 
species' conservation (primary constituent elements (PCEs)). We did not 
include all locations within the geographical area occupied by the 
species where individuals have been observed, nor did we include areas 
outside of the geographical area occupied by the species at the time of 
listing as we do not consider such areas to be essential to the 
conservation of the species. In developing this final rule, we reviewed 
each critical habitat unit and, where appropriate, further refined the 
unit boundaries to ensure that we include only the specific areas 
containing the PCEs for the coastal California gnatcatcher. We 
identified the essential physical and biological features (PCEs) 
contained in each critical habitat unit. All critical habitat 
designated for the coastal California gnatcatcher is within the 
geographical area occupied by the species and is likely used by them 
for breeding, feeding, sheltering, or dispersing at some point in time. 
Please see the ``Criteria Used To Identify Critical Habitat'' section 
below for a detailed discussion. Thus, under the broad statutory 
definition of critical habitat quoted above, all critical habitat 
designated in this final rule is within the geographical area occupied 
by the species. This differs from the common perception that occupancy 
means the detectable presence of a species at all times throughout the 
breeding and non-breeding seasons.
    Comment 3: Several commenters suggested that the justification for 
the inclusion of linkage areas was inadequate.
    Our Response: As discussed in greater detail in the ``Background'' 
section of the April 24, 2003, revised proposed rule and in the 
``Primary Constituent Elements'' section of this final rule, available 
information indicates that dispersal of juvenile coastal California 
gnatcatchers generally requires a corridor of native vegetation (i.e., 
linkage) to facilitate the exchange of genetic material and provide a 
path for recolonization of areas from which the species has been 
extirpated. Therefore, natal dispersal, through corridors, is an 
important aspect of the biology of a non-migratory, territorial bird 
such as the coastal California gnatcatcher. We identified these 
linkages based on survey information, vegetation maps, and the known 
dispersal capabilities of juvenile gnatcatchers. We are not designating 
as critical habitat areas that are suspected to provide a linkage 
between populations, but for which upon a reevaluation we have 
determined that we have inadequate information (e.g., some lands in 
Unit 8 and all lands in Unit 11).
    Comment 4: Some commenters questioned how lands in San Bernardino 
County could be considered essential when, according to the listing 
rule (58 FR 16742), the species was considered extirpated from that 
County.
    Our Response: As discussed in the ``Criteria Used To Identify 
Critical Habitat'' section of the April 24, 2003, proposed rule and in 
the same section below, at the time of listing in 1993, coastal 
California gnatcatchers were not known to occur in San Bernardino 
County except from historic museum records. However, subsequent to the 
publication of the final listing rule, Davis et al. (1998, pp. 362-364) 
summarized survey efforts in San Bernardino County, documenting species 
occurrences, including some breed pairs, from several different 
locations in 1990, 1993, 1994, and 1995. Therefore, based on pre-
listing occupancy data and museum records, we consider San Bernardino 
County to have been occupied at the time of listing. As stated in the 
April 24, 2003, proposed rule, populations of coastal California 
gnatcatchers in San Bernardino County are at the northern extent of the 
species' inland distribution, and the elevation and vegetation in which 
they occur may be unique within the species' range. However, we have 
reevaluated the importance of lands in San Bernardino in Unit 11 and 
have determined that lands in Unit 11 are not essential to the 
conservation of the species. Therefore, we have removed lands in Unit 
11 from this final designation (see ``Summary of Changes From the 2003 
Proposed Rule To Revise Critical Habitat'' section below for a detailed 
discussion of the removal of these lands). However, we are designating 
as critical habitat lands in southern San Bernardino County in Unit 10 
(see ``Critical Habitat Designation'' section below).
    Comment 5: The U.S. Forest Service (USFS) commented that most areas 
of the Cleveland National Forest proposed for inclusion in critical 
habitat are chaparral, and do not support the PCEs of coastal 
California gnatcatcher habitat according to the model cited on pages 
20239 through 20249 of the April 24, 2003, proposed rule. They further 
commented that most of the National Forest System lands proposed for 
designation are located at considerable distances from any coastal sage 
scrub.
    Our Response: As discussed in the ``Background'' section of the 
April 24, 2003, revised proposed rule and in the ``Primary Constituent 
Elements'' section of this final rule, though the majority of coastal 
California gnatcatchers are likely restricted to sage scrub vegetation, 
availability of these non-sage scrub areas (including chaparral) is 
essential during certain times of the year, particularly during drought 
conditions, for dispersal, foraging, or nesting. Also, as discussed in 
the ``Proposed Critical Habitat Designation'' section of the April 24, 
2003, revised proposed rule, Cleveland National Forest (identified in 
Unit 2) is occupied by a core population of the species and contains 
canyons and corridors that provide linkages to preserve lands adjacent 
to this unit. Therefore, this area on the Cleveland National Forest is 
included in this final designation.
    Comment 6: One commenter stated that since 2003, development 
proposals and fires have continued to imperil the coastal California 
gnatcatcher and its habitat. Projects such as the South Orange County 
Transportation Infrastructure Improvement Project and wildfires will 
impact coastal sage scrub that the species depends on for survival. The 
commenter stated that the occurrence of such events [projects and

[[Page 72013]]

wildfires] underscores the necessity of designating sufficient habitat, 
beyond what is presently proposed, to comply with the mandate of the 
Act, requiring that the Service conserve and recover the species.
    Our Response: Critical habitat is defined in section 3 of the Act 
as (i) the specific areas within the geographic area occupied by a 
species, at the time it is listed in accordance with the Act, on which 
are found those physical or biological features (I) essential to the 
conservation of the species and (II) that may require special 
management considerations or protection; and (ii) specific areas 
outside the geographic area occupied by a species at the time it is 
listed, upon a determination that such areas are essential for the 
conservation of the species. We have identified areas within the 
geographical area occupied by the species at the time of listing that 
contain features in sufficient quantity and spatial arrangement we have 
determined to be essential to the conservation of the species and that 
may require special management considerations or protection. Based on 
current knowledge, we do not believe that areas beyond those (1) 
included in this final designation, (2) exempt from critical habitat 
designation under section 4(a)(3) of the Act (see ``Application of 
Section 4(a)(3) of the Act'' section below), or (3) excluded from 
critical habitat designation under section 4(b)(2) of the Act (see 
``Exclusions under Section 4(b)(2) of the Act'' section below), are 
essential for the conservation of the coastal California gnatcatcher. 
However, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Comment 7: The County of San Diego commented that based on the 
observations of local biologists, they believe that coastal sage scrub 
that burned during the 2003 fires is generally recovering and 
reiterated that fire is a natural component of sage scrub and chaparral 
ecosystems. The County further stated that, although the 2003 fires 
were extensive, they believe that the general distribution of coastal 
sage scrub and coastal California gnatcatchers will soon return to pre-
fire conditions. Based upon this, they do not believe that we should 
adjust proposed revised critical habitat due to the 2003 fires. Another 
commenter stated that any lands that we proposed for designation before 
the wildfires should remain as critical habitat in the final rule, 
regardless of whether such land is presently occupied or unoccupied 
since these lands are essential to the conservation of the species and 
require special management considerations or protection. This commenter 
further stated that the fires have only increased pressure on the 
survival of the coastal California gnatcatcher, and lands that were 
previously occupied are likely to be occupied again.
    Our Response: We agree that although the 2003 fires were extensive, 
the general distribution of coastal sage scrub and coastal California 
gnatcatchers is likely to return to pre-fire conditions. As discussed 
below in the ``Primary Constituent Elements'' section of this final 
rule, fire is a natural component of the southern California landscape 
and plays an important role in regulating coastal sage scrub 
distribution, density, and species composition. Our determination of 
areas containing the PCEs essential for the conservation of the coastal 
California gnatcatcher takes into account temporal variations in 
coastal sage scrub habitat resulting from periodic fires, which are a 
normal component of this dynamic, fire-adapted landscape. Based on 
this, we did not remove areas from this final designation that were 
included in the April 24, 2003, proposed revised designation that 
burned in the 2003 fires or the recent 2007 fires.
    Comment 8: One commenter objected to the inclusion of large areas 
of their property (Newhall Land and Farming Company lands) in the Santa 
Clarita Valley in proposed critical habitat Unit 13. The objection is 
based on negative coastal California gnatcatcher survey data over 
multiple years, the loss of habitat due to wildfires in 2003, and 
judgment of consultants who say that the Service's contention that Unit 
13 serves as a linkage between populations in the San Gabriel and Santa 
Susana Mountains is incorrect.
    Our Response: After a re-evaluation of lands within Unit 13 
included in the April 24, 2003, revised proposed rule, we have 
determined that portions of the Santa Clarita Valley included in the 
proposed revised designation are not essential to the conservation of 
the coastal California gnatcatcher. Numerous surveys have been 
conducted in the Santa Clarita Valley (including Newhall Land and 
Farming Company lands) but no breeding pairs have been observed. In 
August 2007, an individual bird was observed on Newhall Land and 
Farming Company (Crawford 2007, unpaginated). However, breeding on the 
site has not been confirmed. While the occurrence of this individual 
may indicate that the use of this area for dispersal, we have 
determined that this area does not currently have the spatial 
configuration and quantity of PCEs essential to the conservation of the 
species. Therefore, we have removed these areas, including the majority 
of the lands owned by the Newhall Land and Farming Company, from this 
final designation (see ``Summary of Changes From the 2003 Proposed Rule 
To Revise Critical Habitat'' section below for a detailed discussion).
    However, we still consider the remaining lands in Unit 13 to be 
within the geographical area occupied by the coastal California 
gnatcatcher at the time of listing and, as explained in our response to 
Comment 7 above, to contain physical and biological features in spatial 
arrangement and quantity (i.e., PCEs) essential for the conservation of 
the species, although such features have been temporally affected by 
the 2003 fire. We believe that habitat burned by the 2003 Simi wildfire 
will support breeding pairs of coastal California gnatcatchers as the 
area recovers. The commenter stated that this habitat is likely to burn 
prior to its recovery, which could potentially change the vegetative 
community type to weedy species, rendering it unsuitable for coastal 
California gnatcatcher colonization. This comment is based on 
speculation and not supported by the fire history of the area (the area 
had not burned for several years prior to 2003 and supported large 
areas of habitat suitable for the coastal California gnatcatcher). 
Also, based on currently available data, none of the areas included in 
the 2003 proposed revised critical habitat designation that burned in 
the 2003 fires burned in the 2007 fires. However, the full extent of 
the 2007 fires is still being assessed. Furthermore, the commenter 
stated that the likelihood of an area being colonized by coastal 
California gnatcatchers after it has recovered from a burn is probably 
dependent on the proximity of founder populations that can disperse to 
the site rather than the structure of its habitat. Habitat in Unit 13 
currently contains populations of coastal California gnatcatchers in 
areas that did not burn in 2003 or 2007, which given the opportunity 
and time, should colonize recovered habitat (see ``Primary Constituent 
Elements'' section below for a detailed discussion).
    The area within Unit 13 included in this revised final designation 
that connects the San Gabriel and Santa Susana Mountains contains the 
physical and biological features in spatial arrangement and quantity 
(i.e., PCEs)

[[Page 72014]]

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

Issue 2: Mapping and Methodology

    Comment 9: Several commenters suggested that the proposed rule to 
revise critical habitat is overly broad and contains significantly more 
acreage than the acreage estimated as habitat in the original listing 
rule. Other commenters objected to the fact that the mapping scale of 
the proposed critical habitat includes areas that do not contain the 
PCEs for the coastal California gnatcatcher.
    Our Response: Since the listing of the coastal California 
gnatcatcher as threatened in 1993 (58 FR 16742), a significant amount 
of survey information has become available that provides a much more 
complete dataset delimiting the range of the species within the United 
States. We used this new survey information in mapping areas containing 
the PCEs required by the species throughout its range.
    We are required to describe critical habitat with specific limits 
using reference points and lines as found on standard topographic maps 
of the area (50 CFR 424.12(c)). In the April 24, 2003, proposed revised 
designation, we delineated critical habitat based on Universal 
Transverse Mercator (UTM) gridlines set every 328 feet (ft) (100 meters 
(m)). We overlaid these 100 meter square grids on areas determined to 
contain the PCEs required by the species. While we removed entire grid 
squares that did not contain the PCEs for the coastal California 
gnatcatcher, portions of grid squares that did not contain PCEs were 
inadvertently included within the boundaries of our proposed revision 
of critical habitat due to mapping limitations. However, in this final 
designation, we revised the methodology used to delineate critical 
habitat unit boundaries (see ``Criteria Used To Identify Critical 
Habitat'' section below for a detailed discussion). Using this revised 
methodology allowed us to describe more precisely boundaries associated 
with areas that we have determined to contain the PCEs and to eliminate 
additional areas that do not contain the PCEs for the species.
    Comment 10: Several commenters suggested that the PCEs defined as 
being essential for the coastal California gnatcatcher are not specific 
and appear to encompass most natural plant communities in southern 
California. Furthermore, the commenters assert that the proposed rule 
to revise critical habitat does not explain why the PCEs are essential.
    Our Response: The PCEs for the coastal California gnatcatcher are 
based on data from peer-reviewed published literature, gray literature 
(non-published or non-peer-reviewed survey or research reports), and 
biologists knowledgeable about the species and its habitat 
requirements. The PCEs, as described, represent the specific physical 
and biological features essential for the conservation of the coastal 
California gnatcatcher, such as habitat for breeding, foraging, and 
dispersal. The coastal California gnatcatcher, while considered an 
obligate (requires a specific habitat type to survive) of sage scrub 
plant communities, utilizes other plant communities and associations 
such as chaparral, grassland, and riparian (areas near a source of 
water) habitats where they occur in proximity to sage scrub. These non-
sage scrub habitats are used for dispersal and foraging. Though the 
majority of coastal California gnatcatchers are likely restricted to 
sage scrub, availability of these non-sage scrub areas is essential 
during certain times of the year, particularly during drought 
conditions, for dispersal, foraging, or nesting (see the ``Primary 
Constituent Elements'' section below for a detail discussion of this 
species' habitat requirements).
    These additional plant communities and associations have become 
more important to the conservation of the coastal California 
gnatcatcher with the continued loss of coastal sage scrub habitat due 
to urban and agricultural development. For this reason, we categorize 
the PCEs in spatial arrangement and structure and function to capture 
the plant communities, associations, and corridors of vegetation (i.e., 
linkages) that are essential for conservation of coastal California 
gnatcatcher and that provide connectivity between populations. In this 
final rule, we have clarified and refined the PCEs to enable landowners 
and managers to more clearly identify habitat containing features 
essential to the conservation of the species. We have also provided a 
clearer connection between the PCEs and the basic components of the 
life history of the coastal California gnatcatcher to show why these 
elements are essential.
    Comment 11: Several commenters stated that the model used to assist 
in identifying PCEs is flawed and should not have been used.
    Our Response: The model is one of many tools used to define the 
specific areas containing the PCEs for the coastal California 
gnatcatcher and, therefore, to define the areas proposed as revised 
critical habitat as explained in the Methods section, we used many 
other categories of information, including coastal California 
gnatcatcher presence and absence survey data, vegetation data, land use 
data, and aerial photography to delineate areas containing features in 
a spatial arrangement that provides the structure and function 
essential to the conservation of the species. Most coastal sage scrub 
patches in Orange and San Diego counties, the Counties covered by the 
model, have been surveyed for the species at least once. These survey 
data were the primary information used, in conjunction with aerial 
photography, in those Counties. We verified the accuracy of the model 
using survey data, and then we used the model primarily to help 
identify high quality breeding habitat in Orange and San Diego counties 
in locations where no survey information was available.
    The model used in the proposed rule to revise critical habitat was 
developed during the planning process for the North San Diego County 
Multiple Habitat Conservation Plan. Though many potential parameters 
could be used in a model, we selected four parameters for our model: 
habitat patch size, slope, temperature, and precipitation. The 
predictive power of the model beyond the specific geographical area for 
which it was developed was tested with a large coastal California 
gnatcatcher data set of abundance information from surveys conducted in 
2002 during the breeding season. This data set was collected to provide 
an estimate of current population levels in Orange and San Diego 
counties, and it provided a useful and appropriate test of the 
predictive power of the model. Forty-eight percent of the points 
located in habitat modeled as very-high quality were occupied, 28

[[Page 72015]]

percent of the points located in high-quality habitat were occupied, 8 
percent of the points in medium-quality habitat were occupied, and none 
of the points in low-quality habitat were occupied (see ``Criteria Used 
To Identify Critical Habitat'' section below for more detailed 
discussion). We used this model to assist us in identifying breeding 
habitat quality because of the predictive power of the model.
    Comment 12: Several commenters identified specific areas that they 
thought should not be designated as critical habitat. The CDFG 
requested that CDFG-owned conservation lands be removed from critical 
habitat since these lands are already protected and managed for the 
coastal California gnatcatcher as well as other listed and sensitive 
species. They further commented that designating critical habitat on 
State lands within the CDFG's jurisdiction would provide no added 
conservation benefit and would be detrimental to State conservation 
efforts, as critical resources would be diverted from substantive 
resource protection to procedural regulatory efforts.
    Our Response: When commenters provided us site-specific 
documentation that explained why an area should not be designated 
critical habitat, we evaluated that information in accordance with the 
definition of critical habitat in section 3(5)(A) of the Act and the 
provisions of section 4(b)(2) of the Act. Following our evaluation of 
the new information, we made a determination as to whether 
modifications to the critical habitat boundaries were warranted. In the 
preparation of this final rule, we reexamined and refined the critical 
habitat boundaries to remove those areas that do not, or are not likely 
to, contain the physical and biological features in spatial arrangement 
and quantity (i.e., PCEs) essential for the conservation of the coastal 
California gnatcatcher or areas that may have one or more of the PCEs 
but are no longer essential to the conservation of the species (e.g., 
area does not contain a core population or provide important linkage 
habitat). We also exempted and excluded additional areas from this 
revised final designation under sections 4(a)(3)(B) or 4(b)(2) of the 
Act. Please refer to the ``Summary of Changes From the 2003 Proposed 
Rule To Revise Critical Habitat'' section below for a detailed 
discussion of changes from the revised proposed rule and the 
``Application of Section 4(a)(3) of the Act'' and ``Exclusions under 
Section 4(b)(2) of the Act'' sections for a discussion of our exemption 
or exclusion of additional lands in this revised final rule.
    Regarding the CDFG's request that CDFG-owned conservation lands be 
removed from critical habitat, we excluded from this final designation, 
under section 4(b)(2) of the Act, three ecological reserves (McGinty 
Mountain, Otay Mountain and Rancho Jamul) in Unit 1 and five ecological 
reserves (Pilgrim Creek, Carlsbad Highland, Agua Hedionda Lagoon, 
Batiquitos Lagoon, and San Elijo Lagoon) in Unit 3 based on management 
actions that are or will be conducted under the San Diego Multiple 
Species Conservation Program (MSCP) and the San Diego Multiple Habitat 
Conservation Plan (MHCP), respectively. While CDFG is not a permittee 
to these regional HCPs, they have committed to manage their lands 
consistent with the MSCP and MHCP regional conservation plans (see 
``Other Conservation Partnerships--Exclusions Under Section 4(b)(2) of 
the Act'' section below for a detailed discussion). The only CDFG lands 
included in this final revised designation are approximately 9 ac (4 
ha) of the San Luis Rey River Ecological Reserve in Unit 5 (see ``Table 
3'' below). Since this 9 ac (4 ha) is not within an area covered by an 
approved HCP or other management plan and the PCEs may require special 
management protections or considerations, this area was not excluded 
from this final designation.

Issue 3: Regulatory Impacts and Exclusions

    Comment 13: Several commenters requested that their individual 
properties be excluded from critical habitat because they have 
completed a section 7 consultation for the coastal California 
gnatcatcher.
    Our Response: We disagree that all lands addressed by a section 
7(a)(2) consultation should be excluded from critical habitat. However, 
we agree that lands that no longer contain PCEs as a result of a 
section 7 consultation should be removed from the revised designation. 
As discussed in the ``Summary of Changes from the 2003 Proposed Rule To 
Revise Critical Habitat'' section below, we used recent aerial imagery 
to re-evaluate and subsequently remove lands that do not contain the 
physical and biological features essential to the conservation of the 
species.
    Comment 14: Some commenters stated that the protections provided to 
the coastal California gnatcatcher by the 4(d) special rule for the 
species at 50 CFR 17.41(b) are more comprehensive than those provided 
by critical habitat. Therefore, lands within jurisdictions enrolled in 
the Natural Community Conservation Planning (NCCP) process and that are 
subject to a coastal California gnatcatcher habitat loss permit under 
the 4(d) special rule should be excluded from the final critical 
habitat designation.
    Our Response: The Special Rule under section 4(d) of the Act at 50 
CFR 17.41(b) allows for a limited amount of incidental take of coastal 
California gnatcatchers (associated with the loss of up to five percent 
of sage scrub, i.e., coastal California gnatcatcher habitat) for an 
interim period of time while enrolled jurisdictions are actively 
engaged in preparing an NCCP plan, provided the activities resulting in 
such take are conducted in accordance with the NCCP Conservation and 
Process Guidelines finalized by the California Department of Fish and 
Game (CDFG) updated in January 1998. These guidelines rely on the 
voluntary commitment of jurisdictions to engage in the subregional 
conservation planning process and complete a Habitat Conservation Plan 
(HCP) or NCCP. While we trust that jurisdictions will fulfill their 
commitment to complete conservation plans, this voluntary enrollment 
does not assure that such plans will be completed. As such, the 4(d) 
special rule protections for coastal California gnatcatcher habitat 
provided through a participating jurisdiction's enrollment in the NCCP 
process are temporary and are not assured; such protections are lost if 
the enrolled jurisdiction elects to withdraw from the NCCP program. 
Given the temporary nature of the habitat protections afforded by the 
special 4(d) rule for the coastal California gnatcatcher, lands 
containing PCEs essential for the conservation of this species that are 
covered by the 4(d) rule do not warrant exclusion from critical 
habitat.
    Comment 15: Naval Weapons Station Seal Beach, Detachment Fallbrook 
(Detachment Fallbrook), Marine Corps Base Camp Pendleton (MCB Camp 
Pendleton), and Marine Corps Air Station Miramar (MCAS Miramar) 
suggested that they should be exempt or excluded from critical habitat 
under sections 3(5)(A), 4(b)(2), or 4(a)(3)(B) of the Act based on 
their approved Integrated Natural Resource Management Plans (INRMPs) 
and adverse effects to military training and readiness.
    Our Response: We have re-examined the inclusion of lands on these 
three military installations in light of the National Defense 
Authorization Act for Fiscal Year 2004 (Pub. L. 108-136), which amended 
the Act. Specifically,

[[Page 72016]]

section 4(a)(3)(B) of the Act (16 U.S.C. 1533(a)(3)(B)(i)) states that 
the Secretary shall not designate as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary determines in writing that such plan provides a benefit to 
the species for which critical habitat is proposed for designation. 
Following a review of the INRMPs prepared for each of these three 
installations, we have determined that the approved INRMPs for each 
provides a benefit the coastal California gnatcatcher, its habitat, and 
its PCEs on the subject lands, and we have exempted these lands from 
this final designation under section 4(a)(3)(B) of the Act (see 
``Application of Section 4(a)(3) of the Act'' below for a detailed 
discussion).
    Comment 16: The Pala Band of Mission Indians and the Rincon Band of 
Luise[ntilde]o Indians (on behalf of the Capitan Grande Reservation) 
expressed support for and concurred with the exclusion of those Tribal 
lands from critical habitat designation, stating that failure to 
designate these lands as critical habitat will not result in the 
extinction of the coastal California gnatcatcher. The Bureau of Indian 
Affairs opposed the inclusion of Capitan Grande and Pala Tribal lands 
in the designation of critical habitat for the coastal California 
gnatcatcher. They note that Tribal lands have not been subjected to the 
same development philosophies and pressures that have occurred on non-
Indian lands and that Tribal conservation practices and Tribal resource 
management programs should be rewarded when we are considering 
designation of critical habitat.
    Our Response: As stated in the revised proposed rule, physical and 
biological features essential to the conservation of the coastal 
California gnatcatcher exist on Pala Reservation lands. We considered 
but did not propose lands on the Pala Reservation in the April 24, 
2003, proposed rule and we affirm our exclusion of these areas in this 
final rule (see ``Exclusion of Pala Band of Mission Indians Tribal 
Lands Under Section 4(b)(2) of the Act--American Indian Tribal Rights, 
Federal-Tribal Trust Responsibilities, and the Endangered Species Act'' 
section below for a detailed discussion). We do not consider the 
physical and biological features on lands within the Capitan Grande 
Reservation to be essential to the conservation of the coastal 
California gnatcatcher. Therefore, the lands containing these features 
were not included in the April 24, 2003, revised proposed rule and are 
not included in this final designation of critical habitat for the 
coastal California gnatcatcher.
    Comment 17: One commenter stated that our analysis under section 
4(b)(2) of the Act for excluding lands from the Pala Band of Mission 
Indians Reservation from proposed critical habitat for the coastal 
California gnatcatcher on the basis of our efforts to preserve 
partnerships should also extend to private landowners.
    Our Response: As discussed in the ``Exclusion of Pala Band of 
Mission Indians Tribal Lands Under Section 4(b)(2) of the Act--American 
Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the 
Endangered Species Act'' section below, we are working with the Pala 
Band of Mission Indians and other Tribes under Secretarial Order 3206, 
``American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, 
and the Endangered Species Act'' (June 5, 1997); the President's 
memorandum of April 29, 1994, ``Government-to-Government Relations with 
Native American Tribal Governments'' (59 FR 22951); Executive Order 
13175; and the relevant provision of the Departmental Manual of the 
Department of the Interior (512 DM 2) to preserve our partnership. We 
readily acknowledge our responsibilities to work directly with Tribes 
in developing programs for healthy ecosystems, make information 
regarding federally listed species available to Tribes, and remain 
sensitive to Indian sovereignty and culture. We further acknowledge 
that special considerations flow from our government-to-government 
relationship with Indian Tribes, the U.S. trust responsibility for 
Tribal natural resources it holds in trust, and the fact that Tribal 
lands are not subject to the same controls as Federal public lands. The 
special considerations inherent in our trust responsibilities to Indian 
tribes do not apply to private landowners. However, we are continuing 
to work to develop positive partnerships with private landowners that 
result in benefits to the coastal California gnatcatcher, through 
conservation tools such as HCPs and Safe Harbor Agreements. We 
recognize that private landowners play a significant role in helping to 
recover listed species, including the coastal California gnatcatcher, 
and therefore we continue to seek opportunities to work cooperatively 
with landowners to conserve the coastal California gnatcatcher and its 
habitat.
    Comment 18: Several commenters, including the CDFG, were supportive 
of our proposal that lands covered by approved HCPs that provide take 
authorization for the coastal California gnatcatcher be excluded from 
critical habitat because they do not meet the definition of critical 
habitat or because the benefits of exclusion outweigh the benefits of 
designating such lands as critical habitat. These commenters stated 
that exclusion of lands covered by approved HCPs benefits partnerships, 
benefits future planning, prevents additional regulation, avoids legal 
challenges that HCPs will result in ``adverse modification'' of 
critical habitat, and supports implementation agreements. They also 
stated that without the exclusion of HCPs from critical habitat, 
ongoing and future HCP planning efforts would be jeopardized. Several 
commenters stated that HCPs protect habitat on a larger scale, rather 
than a piece-meal ``project-by-project'' approach that is achieved 
through the section 7 consultation process. Commenters further stated 
that HCPs provide a much greater conservation benefit than critical 
habitat designation to private land areas because HCPs incorporate 
management measures and protections for conservation lands designed to 
preserve, restore, and enhance the lands' value as habitat for covered 
species.
    Our Response: We recognize that critical habitat is one of many 
tools available to help conserve federally listed species and agree 
that approved HCPs are one of the most important tools for reconciling 
land use with the conservation of listed species on non-Federal lands. 
Section 4(b)(2) of the Act allows us to exclude from critical habitat 
areas where the benefits of exclusion outweigh the benefits of 
designation, provided the exclusion will not result in the extinction 
of the species. We believe that in most instances the benefits of 
excluding lands covered by approved HCPs from critical habitat 
designations will outweigh the benefits of including them. For this 
final designation, we have determined that the benefits of exclusion 
outweigh the benefits of designation for all approved and legally 
operative HCPs in which coastal California gnatcatcher is a covered 
species (see ``Exclusions Under Section 4(b)(2) of the Act'' section 
below for a detailed discussion).
    Comment 19: Several commenters, including the CDFG, stated that the 
benefits of excluding specific lands under section 4(b)(2) of the Act 
include the development of much needed housing, increased local 
government funding, decreased litigation burdens, production of new 
jobs, creation of additional habitat preserves, greater participation 
in HCPs, and/or promotion of smart growth.

[[Page 72017]]

    Our Response: As discussed in the ``Effects of Critical Habitat'' 
section of this rule, section 4(b)(2) of the Act and 50 CFR 424.19 
require us to consider the economic impact, impact on national 
security, and any other relevant impact, of designating any particular 
area as critical habitat. We may exclude an area from critical habitat 
if we determine that the benefits of exclusion outweigh the benefits of 
designating the specific areas as critical habitat, unless that 
exclusion will lead to extinction of the species. We have considered 
and analyzed the benefits of exclusion described under section 4(b)(2) 
of the Act and we discuss them in this final rule (see ``Exclusions 
Under Section 4(b)(2) of the Act'' section below for a detailed 
discussion).
    Comment 20: Several commenters requested that exclusions of HCPs 
under section 4(b)(2) of the Act should also apply to pending HCPs and 
lands enrolled in the NCCP program because the designation may have a 
chilling effect on entities pursuing HCP approval and diminish the 
assurances that are one of the key reasons entities participate in 
HCPs. Commenters further stated that the net result of designating 
lands as critical habitat within jurisdictions currently working to 
develop an HCP/NCCP will result in a diversion of scarce resources to 
address the uncertainties, probable litigation, and additional section 
7 consultations that would be created by such designation and that 
these diversions of resources amount to a ``relevant impact'' under 
section 4(b)(2) and that the Service should not designate lands within 
pending HCPs for this reason alone.
    Our Response: Protections for coastal California gnatcatcher 
habitat provided through a participating jurisdiction's enrollment in 
the NCCP process is temporary, is not legally assured, and would be 
lost if the jurisdiction elects to withdraw from the NCCP program. In 
addition, because HCPs/NCCPs under development that propose to cover 
the coastal California gnatcatcher are not finalized, the Service has 
not determined whether they are adequate to support the issuance of 
incidental take permits under section 10 of the Act or the Special Rule 
for the coastal California gnatcatcher under section 4(d) of the Act at 
50 CFR 17.41(b). Also, the conservation measures proposed or under 
consideration in such plans have not been assured through binding 
permit conditions. However, we may consider excluding under section 
4(b)(2) of the Act habitat covered by a pending HCP if we determine 
that an applicant has demonstrated a sustained commitment to develop 
the HCP to comply with section 10(a)(1)(B) of the Act, the California 
Endangered Species Act, and the State's NCCP program. In the past, we 
have excluded habitat covered by pending HCPs that have undergone 
public review as a result of the National Environmental Policy Act 
(NEPA) (42 U.S.C. 4321 et seq.) review process. Currently, there are no 
pending HCPs that have undergone public review as a result of the NEPA 
review process. Therefore, we are not excluding any pending HCPs from 
this final revised critical habitat designation.
    Comment 21: Several commenters, including the CDFG, suggested that 
designated critical habitat be removed concurrently with approval of 
future HCPs. Commenters recommended the establishment of a set of 
standards for HCPs/NCCPs that would provide for their automatic removal 
from critical habitat designated for species covered under such plans 
upon the issuance of the permit, if these standards are met.
    Our Response: Revisions to critical habitat are governed by section 
4 of the Act and require publication of a proposed rule and an 
opportunity for public comment on the proposed revision prior to 
removing lands from critical habitat designation. Future revisions to 
critical habitat based on the approval of HCPs must follow this 
statutory process. We anticipate that some future HCPs will include the 
coastal California gnatcatcher as a covered species and provide for its 
long-term conservation. We expect that HCPs undertaken by local 
jurisdictions (e.g., counties and cities) and other parties will 
identify, protect, and provide appropriate management for those 
specific lands within the boundaries of the plans that are essential 
for the long-term conservation of the species.
    Section 10(a)(1)(B) of the Act states that HCPs must meet issuance 
criteria, including minimizing and mitigating any take of the listed 
species covered by the permit to the maximum extent practicable, and 
that the taking must not appreciably reduce the likelihood of the 
survival and recovery of the species in the wild. We fully expect that 
our future analyses under section 7 of the Act of HCPs and section 
10(a)(1)(B) permits will show that covered activities carried out in 
accordance with the provisions of the HCPs and section 10(a)(1)(B) 
permits will not result in the destruction or adverse modification of 
critical habitat designated for the coastal California gnatcatcher. The 
take minimization and mitigation measures provided under these HCPs are 
expected to adequately protect the lands designated as critical habitat 
in this rule, such that the value of these lands for the survival and 
recovery of the coastal California gnatcatcher is not appreciably 
diminished through direct or indirect alterations. If an HCP that 
addresses the coastal California gnatcatcher as a covered species is 
ultimately approved, we may elect to revise the critical habitat 
boundaries through a subsequent rulemaking if available funding and 
program priorities allow us to do so.
    Comment 22: Several commenters stated that the critical habitat 
rule should not distinguish between individual and regional HCPs.
    Our Response: Our evaluation of the benefits provided to listed 
species and their habitat by HCPs under section 4(b)(2) of the Act is 
the same regardless of HCP scale (e.g., regional or individual). We 
distinguished between the two types of HCPs solely to organize our 
discussion of areas considered but not proposed as critical habitat 
under section 4(b)(2) of the Act by grouping HCPs of a similar scale. 
We have continued this grouping of HCPs of similar scale in this final 
rule (see ``Exclusions Under Section 4(b)(2) of the Act'' section 
below).
    Comment 23: One commenter stated that the establishment of HCPs in 
no way removes the attendant lands from the scope of section 4(a)(3) of 
the Act, which requires the designation of critical habitat, and states 
that the Service is legally required to designate critical habitat 
irrespective of other agencies' management considerations. Therefore, 
the approval of incidental take permits for completed regional HCPs, 
including the Southern Orange County Subregion HCP and Western 
Riverside County MSHCP, and pending HCPs, including the City of Rancho 
Palos Verdes, should not reduce the Service's proposed designation of 
critical habitat for the coastal California gnatcatcher.
    Our Response: As discussed in our response to comment 20, we are 
not excluding any pending HCPs from this critical habitat designation. 
We are, however, excluding lands covered by the Southern Orange County 
Subregion HCP and Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP) under section 4(b)(2) of the Act. Section 
4(b)(2) of the Act allows us to exclude from critical habitat 
designation areas where the benefits of exclusion outweigh the benefits 
of designation, provided the exclusion will not result in the 
extinction of the species. We believe that in most instances the 
benefits of excluding essential areas within approved HCPs from 
critical habitat designations will outweigh the benefits of including 
them. For this designation, we find that the

[[Page 72018]]

benefits of exclusion outweigh the benefits of designation for all 
approved and legally operative HCPs in which coastal California 
gnatcatcher is a covered species (see ``Exclusions Under Section 
4(b)(2) of the Act'' section below for a detailed discussion).
    Regional Habitat Conservation Plans (HCPs) have been the primary 
tool for recovering the coastal California gnatcatcher in southern 
California since the early 1990s. Development of regional HCPs in 
southern California has enabled the Service to conduct detailed 
evaluations of habitat for numerous species, including the gnatcatcher, 
in the context of developing a system of interconnected reserves to 
provide for the long-term biological needs of the species. This has 
been a challenging and complex undertaking, in large part due to the 
mix of Federal and non-Federal landownership patterns throughout the 
listed species' range. Completion and implementation of these HCPs will 
provide for the long term recovery and conservation of the coastal 
California gnatcatcher due to a significant reduction in and management 
of threats facing the species.
    Most of the core populations of the coastal California gnatcatcher 
are concentrated along the coastal portions of Los Angeles, Orange, and 
San Diego counties. The eastern boundary of the species' range includes 
portions of southwestern San Bernardino County, and western Riverside 
County. Conservation and management of core populations of the coastal 
California gnatcatcher are addressed in the Orange County Central and 
Coastal NCCP/HCP, the City and County of San Diego's Multiple Species 
Conservation Program (MSCP) (including the cities of Poway, La Mesa, 
and Chula Vista), the Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP), and the City of Carlsbad within the multi-
city Multiple Habitat Conservation Program (MHCP). Other HCPs are under 
development or have recently been completed, such as the Southern 
Orange County Subregion NCCP/HCP and the Rancho Palos Verdes HCP. 
Similar management of core gnatcatcher populations in northern San 
Diego County are being addressed through the proposed North County 
MSCP.
    On Federal lands and other portions of the species' range in 
southern California, major core populations of the species have been 
conserved through section 7 consultations or are located on lands 
controlled by the Department of Defense and managed through their 
Integrated Natural Resource Management Plans (INRMP).
    The combined efforts of regional HCPs, INRMPs, and key 
consultations under section 7 of the Act have made significant progress 
in managing the threats to the coastal California gnatcatcher and 
collectively will provide for the species' long term conservation. We 
conclude that completion and implementation of these HCPs/NCCPs is 
usually a more effective conservation approach than is a designation of 
critical habitat on these lands. Such a designation would provide 
redundant regulatory oversight and in some cases could hinder