Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Poa atropurpurea, 47706-47767 [E8-17522]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 158 (Thursday, August 14, 2008)]
[Rules and Regulations]
[Pages 47706-47767]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-17522]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum 
californicum (California taraxacum); Final Rule

Federal Register / Vol. 73, No. 158 / Thursday, August 14, 2008 / 
Rules and Regulations

[[Page 47706]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0010; 92210-1117-0000-B4]
RIN 1018-AV04


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and 
Taraxacum californicum (California taraxacum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for Poa atropurpurea and Taraxacum 
californicum under the Endangered Species Act of 1973, as amended 
(Act). Approximately 2,489 acres (ac) (1,009 hectares (ha)) of land in 
San Bernardino and San Diego Counties, California, fall within the 
boundaries of the critical habitat designation for P. atropurpurea, and 
approximately 1,914 ac (775 ha) of land in San Bernardino County, 
California, fall within the boundaries of the critical habitat 
designation for T. californicum.

DATES: This rule becomes effective on September 15, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat will be available on the Internet at https://
www.regulations.gov. Supporting documentation we used in preparing this 
final rule, will be available for public inspection, by appointment, 
during normal business hours, at the U.S. Fish and Wildlife Service, 
Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, 
CA 92011; telephone 760-431-9440; facsimile 760-431-5901.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see 
ADDRESSES section). 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 designations of critical habitat for Poa atropurpurea and Taraxacum 
californicum in this final rule. For more information on the taxonomy, 
biology, and ecology of P. atropurpurea and T. californicum, refer to 
the final listing rule published in the Federal Register on September 
14, 1998 (63 FR 49006), the proposed critical habitat rule published in 
the Federal Register on August 7, 2007 (72 FR 44232), and the notice of 
availability (NOA) of the draft economic analysis (EA) published in the 
Federal Register on April 16, 2008 (73 FR 20600).

Previous Federal Actions

    As discussed in the proposed rule (72 FR 44232, August 7, 2007), 
the Service agreed, as part of an April 20, 2007, settlement agreement, 
to submit to the Federal Register a proposed rule to designate critical 
habitat, if prudent, on or before July 27, 2007, and a final rule by 
July 25, 2008. The proposed critical habitat designations for Poa 
atropurpurea and Taraxacum californicum were signed on July 25, 2007 
and published in the Federal Register on August 7, 2007 (72 FR 44232). 
We also published a reopening of the public comment period and notice 
of public hearings, which were held in San Bernardino, California on 
January 10, 2008, on December 11, 2007 (72 FR 70284), and we published 
a NOA of the draft EA (dated April 9, 2008) of the proposed rule on 
April 16, 2008 (73 FR 20600).
    For a discussion of additional Federal actions that occurred prior 
to the proposed designations of critical habitat for Poa atropurpurea 
and Taraxacum californicum, please refer to the ``Previous Federal 
Actions'' section of the proposed critical habitat rule (72 FR 44232, 
August 7, 2007) and the final listing rule (63 FR 49006, September 14, 
1998).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designations of critical habitat for Poa atropurpurea and Taraxacum 
californicum during three comment periods. The first comment period, 
associated with the publication of the proposed rule for these two 
species, opened August 7, 2007, and closed October 9, 2007 (72 FR 
44232). We received two requests for a public hearing during this 
comment period. The second comment period associated with the 
publication of a notice of public hearings, which were held in San 
Bernardino, California on January 10, 2008, opened December 11, 2007, 
and closed to January 25, 2008 (72 FR 70284). The third comment period, 
associated with the publication of the notice of availability of the 
draft EA (dated April 9, 2008) of the proposed designations, opened 
April 16, 2008, and closed May 16, 2008 (73 FR 20600). During these 
three public comment periods, we contacted appropriate Tribal 
governments; Federal, State, and local agencies and jurisdictions; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed critical habitat designations for these two 
species and the associated draft EA.
    During the first comment period, we received seven comments 
directly addressing the proposed critical habitat designations: one 
from a Federal agency; three from peer reviewers; and three from 
individual members of the public. During the second comment period and 
the January 10, 2008, public hearings, we received eight comments 
directly addressing the proposed critical habitat designations: five 
from local governments, two from organizations, and one from an 
individual member of the public. During the third comment period, we 
received four comments directly addressing the proposed critical 
habitat designations: one from a Federal agency, one from a Tribal 
government, one from a local government, and one from an individual 
member of the public. We received two comments directly addressing the 
draft EA, including one from a Federal agency and one from an 
individual member of the public.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from three knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region where the species occurs, and 
conservation biology principles. As noted above, we received responses 
from three of the peer reviewers.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding critical 
habitat for Poa atropurpurea and Taraxacum californicum. All comments 
received were grouped into general issue categories relating to the 
proposed critical habitat rule and draft EA for P. atropurpurea and T. 
californicum and are addressed in the following summary and 
incorporated into this final rule as appropriate.

Peer Reviewer Comments

    Comment 1: The peer reviewers' comments were generally supportive 
of the proposed designations of critical habitat. The peer reviewers 
provided specific comments on each unit of

[[Page 47707]]

critical habitat. One peer reviewer provided comments primarily on Poa 
atropurpurea, one peer reviewer provided comments primarily on 
Taraxacum californicum, and the third peer reviewer provided comments 
on both species. Unit 3, Belleville Meadow, was cited as the most 
important site for P. atropurpurea by one peer reviewer and as the site 
containing the most vigorous population of T. californicum by another. 
Two commenters stressed the importance of understanding the threat 
caused to T. californicum by hybridization with the nonnative T. 
officinale and urged the development of a plan to remove T. officinale 
and hybrids from meadows where the two species co-occur. One peer 
reviewer indicated that the Service should investigate the viability 
and fitness of hybrid offspring as well as their breeding system so 
that appropriate management could be developed. Another peer reviewer 
stated that even when habitat for T. californicum is fenced or 
otherwise protected from disturbances, there would be a perpetual need 
to remove nonnative plants to protect T. californicum to provide for 
its recovery.
    Our Response: The peer reviewers confirmed the importance of the 
areas that we identified as containing features essential to the 
conservation of each species and consequently delineated as critical 
habitat. Additionally, we added details about special management needs 
provided by the peer reviewers on topics such as hybridization in the 
``Special Management Considerations or Protection'' section and the 
``Final Critical Habitat Designations'' section of this rule.
    Comment 2: Two peer reviewers provided comments on the size of the 
critical habitat units. One peer reviewer indicated we should consider 
using a buffer distance between 328 ft (100 m) and 3,280 ft (1,000 m) 
around known populations to delineate critical habitat. The peer 
reviewer stated that use of a buffer around the known populations would 
help protect the habitat of these two species and provide for their 
life history functions. The peer reviewer indicated that a larger 
buffer would: (1) Allow room for populations of these two plants to 
expand; (2) incorporate areas in which pollination and gene transfer 
could occur; and (3) allow a larger area in which the species could be 
protected from nonnative species by limiting nearby disturbance of 
habitat. Another peer reviewer stated that the extent of habitat 
included in critical habitat for Units 4 and 5 for Poa atropurpurea 
seemed too large when considering the population sizes reported for 
these units.
    Our Response: We believe that we captured in the proposed rule the 
appropriate extent of habitat in the units to be designated as critical 
habitat. Each critical habitat unit designated contains the physical 
and biological features essential to the conservation of each species 
and supports the primary constituent elements (PCEs) for these two 
species, including the known populations, montane meadow habitat, and 
the hydrologic features within montane meadows. The hydrologic features 
create the wet or mesic conditions that support these two species. As 
discussed in the ``Criteria Used to Identify Critical Habitat'' 
section, we delineated proposed critical habitat for Poa atropurpurea 
and Taraxacum californicum using the following criteria: (1) Areas 
occupied by individuals at the time of listing and areas currently 
occupied by these species; (2) areas containing one or more of the PCEs 
for these species (for example, montane meadow habitat); and (3) areas 
currently occupied by more than 10 individuals of either species. To 
capture the physical and biological features essential to the 
conservation of each species, we included meadow habitat within 328 ft 
(100 m) of known occurrences, and in most cases the entire montane 
meadow associated with designated occurrences. However, the mapping 
process we used does not include non-meadow habitat, such as Great 
Basin sage scrub or Jeffrey pine forest vegetation communities. We 
believe our criteria capture the physical and biological features 
essential to the conservation of P. atropurpurea and T. californicum 
and appropriately identify the areas that meet the definition of 
critical habitat. The peer reviewer suggested that designating 
additional land as buffers would allow for population expansion, 
pollination and gene flow, and management for nonnative species. 
However, we determined that our designation of the areas containing the 
physical and biological features fulfills these biological needs and is 
adequate to conserve these species (for a more detailed discussion see 
the ``Criteria Used To Identify Critical Habitat'' section).
    In response to the peer review comment that some areas appear large 
in relationship to the size of the population, please refer to the 
``Criteria Used To Identify Critical Habitat'' section of the rule for 
the explanation of how we identified those areas that contain the 
physical and biological features essential to the conservation of Poa 
atropurpurea and Taraxacum californicum within the geographical area 
occupied by the species at the time of listing (which includes the wet 
meadow habitat that supports the populations). Applying the criterion 
to delineate the wet meadow habitat using the USFS-modeled potential 
habitat specific to each species (Volgarino et al. 2000a, pp. 1-2; 
2000b, pp. 1-2) and aerial or satellite imagery resulted in differing 
sizes of critical habitat units based on the extent of wet meadow 
habitat in each unit.
    Comment 3: One peer reviewer stated that he visited Unit 1, Pan 
Springs Meadow, several times since 1985 and observed dozens of 
Taraxacum californicum plants during some years. While the peer 
reviewer indicated that he had not extensively surveyed the area, he 
believes there are between 15 and 20 T. californicum plants in the area 
(Krantz 2008a, p. 1). The peer reviewer indicated that this unit has 
biogeographical significance to T. californicum because it represents 
one of the three largest remaining sites at the northeast end of Big 
Bear Valley. Within the northeast portion of Big Bear Valley are 
occurrences at Pan Hot Springs Meadow, Arrastre Flats, and North 
Baldwin Lake. The peer reviewer stated that the Arrastre Flats 
occurrence has not been observed for a number of years, despite several 
recent surveys in the area, and that the North Baldwin Lake occurrence 
has diminished to about 15 individuals. For these reasons, the reviewer 
believes we should designate Unit 1, Pan Hot Springs Meadow, as 
critical habitat for T. californicum as well as for Poa atropurpurea.
    Our Response: We acknowledged in the proposed rule that the Pan Hot 
Springs Meadow contains occurrences of Taraxacum californicum; however, 
the data we had did not include the information provided by the peer 
reviewer. At the time of the proposed rule, we believed that our 
proposal adequately represented the habitat needed for the conservation 
of T. californicum throughout its range. We proposed critical habitat 
in Unit 2, which captures the montane meadow referred to by the peer 
reviewer as North Baldwin Lake. We did not include the habitat at Pan 
Hot Springs or Arrastre Flat because we did not have data to show that 
large populations (greater than 10 individuals) of T. californicum 
occupied these areas. Upon receipt of these peer reviewer comments, we 
reviewed the available information regarding T. californicum and 
determined that the montane meadow habitat in Pan Hot Springs Meadow 
does support a large population of T.

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californicum and meets the definition of critical habitat for T. 
californicum (see ``Summary of Changes from the Proposed Rule'' and the 
``Final Critical Habitat Designations'' sections below). In our NOA for 
the draft EA (73 FR 20600; April 16, 2008), we notified the public that 
we were considering the inclusion of Unit 1 as critical habitat for T. 
californicum and requested comment on the data that we received from 
the peer reviewer. We received information from the peer reviewer 
indicating that Pan Hot Springs Meadow supported 12 T. californicum 
plants this year. Therefore, we determined that Pan Hot Springs Meadow 
met our criteria for designating critical habitat, and we included this 
location within Big Bear Valley because it is believed to be the 
historical core area for both of these species (Soreng 2007, p. 1-2). 
The areas we included represent the largest populations that still 
occur for these two species. Although we concluded that Pan Hot Springs 
Meadow contains the features essential to the conservation of both Poa 
atropurpurea and T. californicum, we excluded Unit 1 from the 
designations of critical habitat under section 4(b)(2) of the Act (16 
U.S.C. 1531 et seq.) because the benefits of excluding this area 
outweigh the benefits of including this area in critical habitat (see 
Comment 9 below and see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).
    Comment 4: Two peer reviewers commented on locations not included 
in the proposed rule that may be important to the long-term 
conservation of Poa atropurpurea and Taraxacum californicum. One peer 
reviewer indicated that montane meadow habitat southeast of Baldwin 
Lake in and around Shay Meadows and Lake Erwin may ``harbor substantial 
stands of P. atropurpurea.'' The reviewer indicated that this area may 
not have been surveyed because it is primarily privately owned land. 
The peer reviewer stated that we should pursue the possibility of 
surveying this area and consider ways to protect any substantial stands 
of P. atropurpurea that are found. Another peer reviewer expressed 
concerns that critical habitat was not proposed in the western portion 
of Big Bear Valley that was historically the core portion of the range 
for both of these species. The peer reviewer identified three privately 
owned parcels (China Gardens Meadow, Eagle Point Meadow, and Metcalf 
Meadow) containing small, extant populations of P. atropurpurea and T. 
californicum that were not included in the proposed critical habitat 
rule and stated that these areas are significant to the overall 
distribution of both species.
    Our Response: We believe that these final designations for each 
species accurately contain all specific areas meeting the definition of 
critical habitat for Poa atropurpurea and Taraxacum californicum.
    As discussed in the ``Criteria Used to Identify Critical Habitat'' 
section of the proposed rule and this final rule, we delineated 
proposed critical habitat for Poa atropurpurea and Taraxacum 
californicum using the following criteria: (1) Areas occupied by 
individuals at the time of listing and areas currently occupied by 
these species; (2) areas containing one or more of the PCEs for these 
species (for example, montane meadow habitat); and (3) areas currently 
occupied by more than 10 individuals of either species. Application of 
these criteria captures the physical and biological features that are 
essential to the conservation of these species, identified as the 
species' PCEs laid out in the appropriate quantity and spatial 
arrangement. Thus, not all areas supporting the identified PCEs will 
meet the definition of critical habitat.
    The criteria we used resulted in a critical habitat designation 
that is representative of the diversity in each species' range. The 
small populations of Poa atropurpurea and Taraxacum californicum at 
China Gardens Meadow, Eagle Point Meadow, and Metcalf Meadow are in the 
developed portions of Big Bear Valley. These areas may have once 
represented the core populations for these two species, but these 
populations are reduced, degraded, and fragmented to a point where we 
no longer believe they substantially contribute to the conservation of 
these two species. Populations in these meadows did not meet our 
criteria because no more than 10 plants are documented in each of these 
meadows. In the areas with no more than 10 plants, we believe it is 
unlikely that reproduction will occur with enough success for these 
populations to contribute to the long-term conservation of these 
species. We included the best representative habitat that remains in 
Big Bear Valley as critical habitat in these designations (Units 1 
(excluded), 2 (designated), and 6 (designated)).
    We did not designate critical habitat southeast of Baldwin Lake in 
and around Shay Meadows and Lake Erwin because we do not have data 
indicating that Poa atropurpurea or Taraxacum californicum occur in 
these areas or that these areas are otherwise essential for the 
conservation of the species. We believe that the lands we have 
identified in this rule can adequately support the recovery of P. 
atropurpurea and T. californicum through appropriate conservation 
measures (see the ``Special Management Considerations or Protection'' 
section for details about the type of management needed for these 
species).
    Comment 5: One peer reviewer stated that voucher specimens should 
be collected to verify the presence of Poa atropurpurea because, in the 
past, this species has been confused with other Poa species (see Curto 
1992). Specifically, the peer reviewer did not believe there was 
adequate documentation of P. atropurpurea in Unit 13, Mendenhall 
Valley, from data provided in the proposed rule. The peer reviewer 
stated that a voucher specimen has not been collected from Mendenhall 
Valley since 1981.
    Our Response: In general, we agree with the peer reviewers' 
statement that the collection of voucher specimens is important to 
verify of the presence of Poa atropurpurea in areas where the 
identification is not certain. We encourage repeated visits to confirm 
continued occupancy, but recommend that populations are vouchered 
approximately once every 10 years to reduce impacts to the populations. 
In cases where there are fewer than 20 individuals present, we 
recommend that no voucher is taken, and instead document the 
occurrences with photographs, field notes, and a data form. Collections 
should occur in accordance with all State and Federal regulations and 
according to standard herbarium practices described in Ross (1996, p. 
19). Collections on Federal land require a permit under section 
10(a)(1)(A) of the Act and would include sampling restrictions in 
accordance with the permit. Voucher specimens for this species should 
include portions of both male and female plants.
    Although the last voucher of this population was collected in 1981, 
we have concluded that that Unit 13, Mendenhall Valley, was occupied by 
Poa atropurpurea at the time of listing as well as at the present time. 
In 1994, U.S. Forest Service (USFS) botanists documented the presence 
of 100 P. atropurpurea plants in Mendenhall Valley (Volgarino and 
Winter 1994, pp. 1-2; CNDDB 2006a). Due to the peer reviewer's comment, 
we contacted the Cleveland National Forest (CNF) and requested 
additional documentation on this population. They provided monitoring 
reports from 2001 and 2002 (Davis 2001, pp. 1-2; Davis 2002, p. 1; 
Winter 2002, pp. 1-5). In 2002, USFS botanists documented 175 P.

[[Page 47709]]

atropurpurea individuals in Mendenhall Valley (Davis 2002, p. 1; Winter 
2002, pp. 1-5). Based on this information, we believe the population of 
P. atropurpurea is robust and conclude that the area that supports it 
meets our definition of critical habitat. We acknowledge the peer 
reviewers' suggestion that this occurrence should again be vouchered. 
We discussed this suggestion with the forest botanist at the CNF (Young 
2008, p. 1) who recommended we obtain a voucher specimen of P. 
atropurpurea from Mendenhall Valley from USFS land in a year when the 
P. atropurpurea population in this area is relatively abundant.
    Comment 6: Two peer reviewers expressed concern for the long-term 
persistence of Taraxacum californicum due to hybridization with the 
nonnative T. officinale. The peer reviewers expressed concern that 
hybrid individuals threaten the listed species through genetic 
introgression and possibly direct competition with the listed species. 
The peer reviewers urged the Service to address this issue. One peer 
reviewer indicated that he observed hybrid individuals in Unit 1 that 
displayed intermediate characteristics of T. californicum and T. 
officinale. Additionally, the peer reviewer stated that T. officinale 
is present in Units 1, 2, 3, and 12, and an active management program 
should be implemented to remove the nonnative species in these units.
    Our Response: We agree that Taraxacum californicum is threatened by 
hybridization. The listing rule identified hybridization with the 
nonnative T. officinale as a threat to T. californicum at Cienega Seca 
Meadow (Unit 11) (63 FR 49006, pp. 49016-49017). Further, we discussed 
hybridization in the proposed rule in the ``Background,'' ``Primary 
Constituent Elements,'' and ``Final Critical Habitat Designations'' 
sections of the proposed rule (72 FR 44232, August 7, 2007) and 
specifically identified hybridization as a threat in units 5, 6, 7, 8, 
9, 10, 11, and 12.
    As discussed in the ``Primary Constituent Elements'' section of 
this rule and according to the San Bernardino National Forest's (SBNF) 
Meadow Habitat Management Guide, habitat invaded by Taraxacum 
officinale may result in hybridization with T. californicum and prevent 
population growth (SBNF 2002a, p. 113). Although T. officinale 
reproduces apomitically (production of viable seeds is not dependent on 
fertilization), it does produce fertile pollen that can fertilize T. 
californicum (SBNF 2002a, pp. 24, 113). Moreover, the SBNF reported 
that T. officinale is present at all T. californicum occurrence 
locations, and plants that appear to be hybrids between the two species 
were observed by USFS botanists and others (SBNF 2002a, p. 113; Eliason 
2007a, p. 4; Krantz 2007, pp. 1-2, 2008a, p. 1). However, individuals 
that appear as hybrids could be a result of morphological variation 
within T. californicum. Some scientists believe that observations of 
hybridization are not conclusive and could use further study (Ellstrand 
2007, p. 1). We support further investigation of the hybridization 
between T. californicum and T. officinale. Although a formal study 
documenting that hybridization is occurring between T. californicum and 
T. officinale is lacking, we believe that field observations indicate 
that hybridization may be occurring between these two species (SBNF 
2002a, p. 113; CNDDB 2007, pp. 34, 36, 37; Krantz 2007, pp. 1-2, 2008a, 
p. 1). Therefore, we support the removal of T. officinale from montane 
meadows. This management action will benefit T. californicum by 
reducing direct competition from T. officinale and the potential 
threats of hybridization.
    Comment 7: One peer reviewer requested that we clarify the 
contradiction between the statement that under section 7(a)(2) of the 
Act, critical habitat is purely a protective measure and does not 
require implementation of restoration, recovery, or enhancement 
measures (72 FR 44236) and the text stating that each unit may require 
special management considerations or protection to restore, protect, 
and maintain the primary constituent elements (72 FR 44237-44243).
    Our Response: The latter statement relates to the definition of 
critical habitat under section 3(5)(A) of the Act and the former 
statement relates to how critical habitat is addressed under section 
7(a)(2) of the Act. These two sections of the Act and the discussion on 
each in the proposed rule do not contradict each other. The Act defines 
critical habitat as the specific areas within the geographical area 
occupied by the species, at the time it is listed in accordance with 
the provisions of section 4 of this Act, on which are found those 
physical or biological features (I) essential to the conservation of 
the species and (II) which may require special management 
considerations or protection; and specific areas outside the 
geographical area occupied by the species at the time it is listed in 
accordance with the provisions of section 4 of this Act, upon a 
determination by the Secretary that such areas are essential for the 
conservation of the species. To support our determinations that 
specific areas meet the definition of critical habitat, we identify in 
this rule the types of special management considerations or protection 
the physical and biological features may require (see ``Special 
Management Considerations or Protection'' section). In this way, 
critical habitat can assist public agencies and private landowners in 
identifying management actions that will contribute to the conservation 
of federally listed species on those lands.
    Section 7(a)(2) of the Act applies once critical habitat is 
identified and designated and requires Federal agencies to ensure that 
any action they fund, authorize, or carry out is not likely to destroy 
or adversely modify such designated critical habitat. The designation 
of critical habitat does not affect land ownership or establish a 
refuge, wilderness, reserve, preserve, or other conservation area, and 
the consultation requirement under section 7(a)(2) does not mandate 
that areas designated as critical habitat be affirmatively managed or 
protected.

Public Comments

    Comment 8: Several commenters stated that the western portion of 
Unit 1, Pan Hot Springs Meadow, is above the high water line for Lake 
Baldwin and that this area does not regularly flood. Therefore, the 
commenters concluded that the area above the high water line for 
Baldwin Lake does not support the PCEs for Poa atropurpurea and they 
requested that this area be removed from critical habitat. During the 
third comment period, the Big Bear City Community Service District 
(BBCCSD) submitted a draft of the Pan Hot Springs Meadow Habitat 
Management Plan (HMP) for the areas that support P. atropurpurea and 
Taraxacum californicum. The HMP included data from a survey the BBCCSD 
initiated for P. atropurpurea and T. californicum, as well as three 
other federally listed plant species that occur in the Pan Hot Springs 
Meadow. The survey, which was conducted by Dr. Timothy Krantz, showed 
that the areas supporting P. atropurpurea and T. californicum in the 
Pan Hot Springs Meadow are limited to approximately 40 ac (16 ha) in 
the northwest and central portions of the area that was proposed as 
critical habitat Unit 1 (Krantz 2008b, pp. 3-8, 12, map). Additionally, 
we received information during the third comment period from the USFS 
indicating that no meadow habitat or known occurrences of P.

[[Page 47710]]

atropurpurea or T. californicum exist in the area proposed as critical 
habitat Unit 1 north of State Route 18, and that this area is not part 
of the hydrologic system supporting the meadow south of State Route 18 
(Holtrop 2008, p. 1-2). One commenter stated that we could remove Unit 
1 from critical habitat because recovery for P. atropurpurea can be 
achieved with the conservation measures that are in place at other 
areas where this species occurs. This commenter specifically indicated 
that other areas (Wildhorse Meadow, Holcomb Valley, and other non-
specific locations) outside of Unit 1 provide adequate conservation for 
P. atropurpurea, and therefore Unit 1 is not essential to the 
conservation of the species.
    Our Response: We appreciate the information provided by the 
commenters. Based on the information provided, we reanalyzed the 
boundaries for proposed critical habitat Unit 1 and found that the 
majority of the area that we proposed as Unit 1 lacks the physical and 
biological features essential for the conservation of Poa atropurpurea 
and Taraxacum californicum. We removed three locations from the area 
proposed as Unit 1 that do not contain the PCEs: (1) 24 ac (10 ha) that 
are elevated above the montane meadow and have species such as 
Artemisia tridentata (Great Basin Sage) that are too dry to support P. 
atropurpurea and T. californicum and do not contain the PCEs; (2) 19 ac 
(8 ha) north of State Route 18 where wet meadow habitat does not exist; 
and (3) 12 ac (5 ha) of drier meadow habitat where surveys confirmed 
that P. atropurpurea and T. californicum do not occur. Additionally, we 
removed 47 ac (19 ha) of extremely wet meadow habitat in the east 
portion of the area proposed as Unit 1 that regularly floods from 
Baldwin Lake because the area does not meet the criteria used to 
identify critical habitat, occurs outside of the potential dispersal 
distance from known occurrences, and therefore is not likely to 
contribute to the conservation of P. atropurpurea and T. californicum. 
We concluded that these lands are unlikely to support recovery or 
contribute to the long-term conservation for P. atropurpurea or T. 
californicum. Finally, we determined that 40 ac (16 ha) in Unit 1 meet 
the definition of critical habitat for P. atropurpurea and T. 
californicum; we refer to this area as ``essential lands.'' In our NOA 
for the draft EA (73 FR 20600; April 16, 2008), we notified the public 
that we received input during the public comment process on Unit 1 and 
that we would possibly modify the critical habitat boundary of this 
unit to reflect the best scientific and commercial data available.
    We believe the 40 ac (16 ha) of Unit 1 meet the definition of 
critical habitat for Poa atropurpurea and Taraxacum californicum 
because this unit provides the physical and biological features 
essential to the conservation of these species in Big Bear Valley, an 
area that historically represented the core of both species' 
distributions. Additionally, Pan Hot Springs Meadow is unique as it 
supports one of the few P. atropurpurea occurrences in Big Bear Valley 
that has not been severely degraded by development or other human 
impacts. However, the BBCCSD initiated long-term conservation of Unit 1 
by drafting, adopting, and implementing the Pan Hot Springs Meadow HMP 
(discussed detail below, in response to Comment 9). Furthermore, the 
economic analysis indicates that there are disproportionate and 
potentially significant costs to the BBCCSD attributable to the 
designation of critical habitat. We balanced the benefits of including 
the remaining portion of Unit 1 in the designation for each species 
against the benefits of excluding it under section 4(b)(2) of the Act 
and determined that the benefits of exclusion outweigh the benefits of 
inclusion. Therefore, we excluded the 40 ac (16 ha) of essential lands 
now identified in Unit 1 from critical habitat (see also response to 
Comment 9 and ``Exclusions Under Section 4(b)(2) of the Act'' section).
    Finally, in response to the commenter who indicated that Unit 1 
might not meet the definition of critical habitat for Poa atropurpurea 
because other areas are already conserved for this species, we provide 
the following response. Although historical occurrences of P. 
atropurpurea are known from one location (Wildhorse Meadow) identified 
by the commenter, we did not include this area in our proposed 
designation because this species has not been observed at Wildhorse 
Meadow for several years, despite recent survey efforts. We do not have 
additional information regarding conservation for P. atropurpurea for 
the other areas identified by the commenter. Holcomb Valley supports P. 
atropurpurea, and we designated this area as critical habitat (referred 
to in this document as Unit 4: Hitchcock Meadow). We do not have data 
on the non-specific areas provided by the commenter to indicate that 
those areas are occupied by P. atropurpurea or contain the physical and 
biological features essential to the conservation of the species. A 
limited number of sites where P. atropurpurea occurs (for example, on 
Forest Service and or Wildlands Conservancy lands) have minimal 
conservation measures in place (for example, limited grazing and 
control over public access). However, too few locations, including 
those under Federal ownership, receive the type of conservation 
protections needed to ensure the survival and recovery of P. 
atropurpurea and Taraxacum californicum (see ``Special Management 
Considerations or Protection'' section). Unauthorized and uncontrolled 
human access continues to threaten most montane meadows where these 
species occur, and in many meadows the hydrology has been altered to 
further threaten the survival of these species. Therefore, the existing 
conservation for P. atropurpurea, as highlighted by the commenter, does 
not affect our conclusion that the 40 ac (16 ha) of essential lands 
identified in Unit 1 meet the definition of critical habitat for P. 
atropurpurea.
    Comment 9: Several commenters stated that the western portion of 
the area proposed as Unit 1, Pan Hot Springs Meadow, is the site of a 
future recreational park for the Big Bear community. The community park 
is planned in two phases: Phase One is located outside of the area 
proposed as Unit 1, and Phase Two is located within the area proposed 
as Unit 1. The commenters indicated that the development of Phase Two 
of the park would not impact the sensitive resources (for example, the 
habitat for Poa atropurpurea) in this area, but because the area 
proposed as critical habitat in Unit 1 was poorly delineated the 
designation of critical habitat would impact the ability of the BBCCSD 
to develop Phase Two of the proposed park. The commenters explained 
that the designation of critical habitat could, therefore, limit the 
recreational opportunities for the residents of and visitors to the Big 
Bear area. One commenter stated that the park may include a museum or 
interpretive signs to describe the traditions and history of Native 
Americans who historically inhabited the area and therefore may benefit 
the Native American community and others.
    The commenters requested that we exclude the western portion of 
Unit 1 (or make accommodations in the final decision), so that the 
plans for the recreational park and cultural interpretation of the site 
are not impacted. One commenter stated that Unit 1 should be excluded 
from critical habitat because the benefits of exclusion outweigh the 
benefits of inclusion. As mentioned above in Comment 8, the BBCCSD 
submitted a draft HMP for the

[[Page 47711]]

areas in Unit 1 that support occurrences of Poa atropurpurea and 
Taraxacum californicum as well as three other federally listed plant 
species. The HMP outlines the preservation and management of the 
federally listed plants in Unit 1 (Pan Hot Springs Meadow) and the 
areas that are essential to the maintenance of the existing 
hydrological conditions (Krantz 2008b, p. 12). The commenter indicated 
that the HMP will provide for the long-term management and conservation 
of P. atropurpurea and T. californicum within the areas essential to 
these species. The commenter stated that exclusion of critical habitat 
would benefit this new partnership between the BBCCSD, the adjacent 
landowner, and several other stakeholders, including the Service, USFS, 
University of Redlands, and the San Manuel Band of Serrano Mission 
Indians. Additionally, the commenter believes that designation of 
critical habitat may impede the development of these partnership 
opportunities. Finally, the commenter indicated that in addition to the 
implementation of the HMP, the BBCCSD may pursue the creation of a 
Natural Community Conservation Plan or a mitigation bank to further 
protect this area.
    Our Response: Under Section 4(b)(2) of the Act, designations of 
critical habitat are made on the basis of the best scientific data 
available and after taking into consideration the economic impact, the 
impact on national security, and any other relevant impact. The 
Secretary may exclude any area from critical habitat if he determines 
that the benefits of exclusion outweigh the benefits of specifying such 
area as part of the critical habitat, unless he determines that the 
failure to designate such area as critical habitat will result in the 
extinction of the species concerned.
    After determining all areas that meet the definition of critical 
habitat under section 3(5)(A) of the Act, we took into consideration 
the economic impact, the impact on national security, and other 
relevant impacts, of specifying any particular area as critical 
habitat. This analysis included the areas in Unit 1, which some 
commenters requested that we exclude from critical habitat. We worked 
cooperatively with the BBCCSD and the adjacent landowner in development 
of the HMP and long-term management of the entire Pan Hot Springs 
Meadow area. We provided comments on the HMP that the BBCCSD 
incorporated into the plan. This voluntary preservation and management 
plan on private lands addresses recovery needs for the two federally 
endangered plants addressed in these critical habitat designations as 
well as three other federally-listed plant species that occur in Pan 
Hot Springs Meadow. The BBCCSD has also initiated discussions with the 
San Manuel Band of Serrano Mission Indians to include them as a partner 
and participant in the planning process, including development of an 
educational program for this area. We continue to work closely with the 
landowners in Pan Hot Springs Meadow through the development and 
implementation of the HMP and coordination on implementation of other 
conservation measures throughout the meadow area. We believe the 
partnership with the landowners and adjacent landowners will provide 
for the long-term conservation of P. atropurpurea and T. californicum 
in Pan Hot Springs Meadow. As a result, we evaluated the commitment to 
implementing the HMP and our partnership with the private landowners 
during our analysis for exclusion under section 4(b)(2) of the Act. 
Except to prohibit certain actions that occur in knowing violation of 
State law, the Act does not provide protections for federally-listed 
plants on private land, such as Pan Hot Springs Meadow, unless the 
actions on private land that may adversely affect listed plants involve 
a Federal nexus, and it is unlikely there would be a Federal nexus to 
trigger a section 7 consultation on the lands within Pan Hot Springs 
Meadow. As fully explained later in this rule, we excluded Unit 1 from 
the critical habitat designations under section 4(b)(2) of the Act (see 
``Exclusions Under Section 4(b)(2) of the Act'' section for details).
    Comment 10: One commenter stated that he owns land within Unit 1, 
Pan Hot Springs Meadow, which contains wells producing water from 
geothermal sources. This landowner stated that he also owns the water 
rights associated with the wells. The commenter indicated during the 
public hearing and in an additional comment letter submitted during the 
third comment period that he would dedicate water from his private 
source to maintain the hydrology that is critical to supporting Poa 
atropurpurea and Taraxacum californicum in Pan Hot Springs Meadow. The 
commenter indicated that he would like to participate and contribute 
his support to the HMP that the BBCCSD has developed. The landowner 
also provided us with information about some of his future development 
plans for his land adjacent to Pan Hot Springs Meadow, indicating that 
his plans would proceed in a way that protects the meadow habitat and 
associated flora and fauna, as well as maintain the current hydrology 
of Pan Hot Springs Meadow.
    Our Response: The Service is committed to working with landowners 
in Unit 1 to conserve Poa atropurpurea and Taraxacum californicum and 
the PCEs within this unit and applauds the initiative taken by both the 
BBCCSD and this private landowner to conserve the Pan Hot Springs 
Meadow. We excluded Unit 1 from critical habitat as discussed above in 
the response to Comments 8 and 9. We believe that development projects 
near the Pan Hot Springs Meadow will incorporate conservation measures 
to maintain meadow habitat and the hydrology of the meadow. In the 
process of finalizing the Pan Hot Springs Habitat Management Plan, 
thelandowner who made the above comments actively participated in the 
review of the HMP, is committed to implementing of the HMP, and is 
committed to conservation of the Pan Hot Springs Meadow. The BBCCSD and 
this landowner plan to work with other partners in the adaptive 
management of Pan Hot Springs Meadow for the benefit of P. atropurpurea 
and T. californicum. The landowner's commitment made in his public 
comments on this rule indicate that the use or development of his 
geothermal wells (otherwise known as Pan Hot Spring) will help maintain 
the hydrological conditions within the range of what is considered 
natural for this meadow. By returning clean water to the meadow 
ecosystem, this action will help ensure that the hydrological processes 
that help maintain the meadow will be preserved. As stated above, in 
the response to Comment 9, we balanced the benefits of inclusion 
against the benefits of exclusion and determined that the benefits of 
exclusion outweigh the benefits of inclusion for those areas within the 
Pan Hot Springs Meadow. Therefore, we have excluded Unit 1 from 
critical habitat (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).
    Comment 11: One commenter stated that the designations of critical 
habitat for Poa atropurpurea and Taraxacum californicum were flawed 
because some known occurrences of these two species were not proposed 
as critical habitat. The commenter requested that we include all 
occupied occurrences in the critical habitat, or provide scientific 
reasons for not including specific areas. Additionally, the commenter 
cited Leppig and White (2006) to demonstrate that peripheral 
populations are generally small in size, but still considered important 
for conservation purposes.
    Our Response: The commenter did not provide any new data to 
indicate

[[Page 47712]]

that the information we provided in the proposed critical habitat 
designations was incorrect or incomplete. The commenter listed all 
areas historically occupied by these species that we had not included 
in the proposed critical habitat and requested that we include these 
areas. We are unaware of any data on population size for most 
historical occurrences. Without recent information about the status and 
size of a population, we are unable to determine that these lands 
satisfy the criteria we identify in this rule for critical habitat or 
to discern the importance of these particular locations to the overall 
conservation of these species. We are required to use the best 
scientific and commercial data available to designate critical habitat. 
Thus, we developed this critical habitat based on verifiable field 
observations and documentation of the condition of occupied habitat 
(CNDDB 2005a, 2005b, 2006a, 2006b; USFS 2002a). Additionally, we 
included peripheral populations in these designations as described in 
Leppig and White (2006, p. 264). For both species we included occupied 
meadow habitat at the edges of the range and at the highest and lowest 
occurrences. For additional information about why we did not include 
all occupied habitat in these designations, see our response to Comment 
4 and the discussion in the rule below under ``Criteria Used To 
Identify Critical Habitat.''
    Comment 12: One commenter stated that the proposed designations are 
flawed because they do not include unoccupied habitat for recovery, and 
that without including some suitable, but unoccupied, habitat (areas 
with one or more of the PCEs) in the critical habitat designations to 
promote the recovery of Poa atropurpurea and Taraxacum californicum, 
the Service will not be able to meet the Act's recovery goals and 
mandate.
    Our Response: We identified areas within the geographical range of 
Poa atropurpurea and Taraxacum californicum that were occupied at the 
time of listing and contain the physical and biological features 
essential to the conservation of these species that may require special 
management considerations or protection. We designate critical habitat 
in areas outside the geographical area presently occupied by the 
species only when such a designation would be inadequate to ensure the 
conservation of the species (50 CFR 424.12(e)). Accordingly, when the 
best scientific and commercial data do not demonstrate that the 
conservation needs of the species require designation of critical 
habitat outside of occupied areas, we cannot designate critical habitat 
in areas outside the geographical area occupied by the species. The 
critical habitat that we identified for P. atropurpurea and T. 
californicum represents areas currently occupied by for these species. 
The species are also well represented in the occupied habitat 
designated as critical habitat (see the responses to Comment 2 and 3, 
above). Therefore, consistent with the Act and its implementing 
regulations, we are not designating any lands outside the area 
currently occupied by P. atropurpurea and T. californicum because at 
this time we believe that the occupied areas we have designated are 
adequate to ensure the conservation of the species. Therefore, we have 
determined that there are no unoccupied areas that are essential for 
the conservation of the species.

Comments from Other Federal Agencies

    Comment 13: The USFS provided specific information regarding areas 
in Unit 14 and Unit 15 that do not support the PCEs for Poa 
atropurpurea. The USFS stated that Unit 14 (as proposed) included areas 
that are developed as campgrounds and recreational residences. They 
also stated that portions of Unit 14 are dense Jeffery Pine forest 
rather than meadow habitat. The USFS indicated that Unit 15 (as 
proposed) included red shank, chamise, and oak woodland vegetation 
types in addition to meadow habitat. The USFS requested that we remove 
areas from the proposed designations that do not support the PCEs for 
P. atropurpurea and requested that the areas outside of the meadow 
habitat not be designated as critical habitat.
    Our Response: We received additional data from the USFS in response 
to their comment, including maps of the vegetation in and around the 
proposed critical habitat units. We also conducted site visits with 
staff from the CNF on January 24, 2008, and March 28, 2008. We are in 
agreement with the USFS and found that some areas in proposed Units 14 
and 15 do not contain the features essential to the conservation of Poa 
atropurpurea. Therefore, we removed approximately 301 ac (122 ha) of 
forested habitat in Unit 14 and approximately 66 ac (26 ha) of oak 
woodland, sage brush scrub, chaparral, and dry meadow habitat from Unit 
15 and revised our mapping accordingly to reflect the revised unit 
boundaries. As a result of these revisions, Unit 14 decreased by 301 ac 
(122 ha) and now totals 788 ac (319 ha), and Unit 15 decreased by 66 ac 
(26 ha) and now totals 36 ac (15 ha).
    Comment 14: The USFS commented that laws, regulations, policies, 
and Land Management Plan (LMP) direction currently in place provide 
protection at least equivalent to the protection that a critical 
habitat designation would provide. The USFS requested that lands 
proposed as critical habitat for Poa atropurpurea and Taraxacum 
californicum in the SBNF and the CNF be excluded from the final 
designations of critical habitat. They stated that their LMP 
incorporates management direction that provides sufficient protection 
and management for P. atropurpurea and T. californicum and the habitat 
for these two species, and that the section 7 consultation on the LMP 
resulted in the Service coming to a similar conclusion, which resulted 
in the issuance of a non-jeopardy biological opinion (Service 2005, pp. 
203-207, 213-219). Additionally, Appendix H of the LMP includes the 
``Meadow Habitat Management Guide'' for the SBNF (SBNF 2002a) and the 
``Habitat Management Guide for the Sensitive Plant Species: Delphinium 
hesperium ssp. cuyamacae, Lilium parryi, Limnanthes gracilis var. 
parishii, and P. atropurpurea, in Riparian Montane Meadows'' for the 
CNF (CNF 1991). The USFS commented that designation of critical habitat 
on SBNF and CNF lands would not provide any additional benefit to the 
conservation of the species or their habitat because all site-specific 
projects proposed by the SBNF and CNF are subject to section 7(a)(2) 
consultation with the Service. The USFS stated that the designations 
would unnecessarily add to their analysis burden by requiring SBNF and 
CNF to make a determination of effect regarding critical habitat when 
consulting under section 7 of the Act. The USFS acknowledged their 
responsibility to conserve listed species and stated that they will 
continue to provide necessary management, regardless of the outcome of 
the final critical habitat rule.
    Our Response: We determined that National Forest lands contain the 
physical and biological features essential to the conservation of Poa 
atropurpurea and Taraxacum californicum, and meet the definition of 
critical habitat (see ``Criteria Used to Identify Critical Habitat'' 
section below). We acknowledge that the revised LMP will benefit P. 
atropurpurea and T. californicum and their habitat. The LMP contains 
general provisions for species conservation and suggests specific 
management and conservation actions that will benefit these species and 
the physical and biological features essential to their conservation. 
Implementation of the LMP should

[[Page 47713]]

address known threats to these species on National Forest lands. 
However, the LMP is a guidance document and does not require or assure 
funding for management actions for those measures outlined in the plan. 
Additionally, the LMP does not preclude projects from occurring outside 
of the framework of the plan that could negatively impact areas 
proposed as critical habitat. We appreciate and commend the efforts of 
the USFS to conserve federally listed species on their lands.
    The Secretary has the discretion to exclude an area from critical 
habitat under section 4(b)(2) of the Act after taking into 
consideration the economic impact, the impact on national security, and 
any other relevant impact if he determines that the benefits of such 
exclusion outweigh the benefits of designating such area as critical 
habitat, unless he determines that the exclusion would result in the 
extinction of the species concerned. We have considered the request 
from the SBNF and the CNF that we exclude their lands because it would 
unnecessarily add work in the future to determine the effect regarding 
critical habitat for actions on their lands and the fact that they had 
already completed consultation under section 7(a)(2) of the Act on 
their revised LMP.
    As part of our section 7 consultation with the USFS on the LMP for 
the SBNF and the CNF, the USFS has already consulted on various 
activities carried out on National Forest lands including: Roads and 
trail management; recreation management; special use permit 
administration; administrative infrastructure; fire and fuels 
management; livestock grazing and range management; minerals 
management; and law enforcement. In our 2005 biological opinion on the 
LMP, we determined that implementation of the plan was not likely to 
jeopardize the continued existence of Poa atropurpurea or Taraxacum 
californicum (Service 2005, pp. 202-207, 213-219). Since critical 
habitat has not been previously proposed or designated for these 
species, it is anticipated that the consultation with the USFS 
regarding their current LMP will be reinitiated. However, because the 
USFS has already consulted with us on potential impacts to these 
species related to the activities outlined in the LMP, the USFS can 
supplement its analysis for those activities already analyzed in the 
LMP with the additional analysis required for critical habitat areas. 
We do not believe that this additional analysis would place an undue 
burden on the USFS in this case.
    Based on the record before us, we have elected not to exclude these 
lands and are designating National Forest lands that meet the 
definition of critical habitat for Poa atropurpurea and Taraxacum 
californicum. We will continue to consider on a case-by-case basis in 
future critical habitat rules whether to exclude specific lands from 
such designation when we determine that the benefits of such exclusion 
outweigh the benefits of their inclusion.

Comments from the San Manuel Band of Serrano Mission Indians

    Comment 15: The San Manuel Band of Serrano Mission Indians 
expressed opposition to the proposed rule because: (1) we misidentified 
the San Manuel Band of Serrano Mission Indians as the ``San Miguel Band 
of Mission Indians'' in the NOA for the draft EA that published in the 
Federal Register on April 16, 2008 (73 FR 20600); (2) we did not 
adequately recognize the traditional legal rights of the San Manuel 
Band of Serrano Mission Indians by failing to recognize the San Manuel 
Band of Serrano Mission Indians' consistent historical and traditional 
use of the area identified as proposed Unit 1 and surrounding areas, 
which have not been relinquished or abandoned; (3) we did not 
incorporate the policy directive of Executive Order (E.O.) 13007 by 
taking into account the unique and specific issues of the San Manuel 
Band of Serrano Mission Indians, which include traditional, religious, 
and cultural rights identified in proposed Unit 1 and surrounding 
areas; and (4) the proposed rule does not sufficiently incorporate our 
responsibility to maintain the government-to-government consultation 
policy as described in the Secretarial Order No. 3206, dated June 28, 
2004.
    Our Response: With regard to the inadvertent misidentification of 
the San Manuel Band of Serrano Mission Indians in the April 2008 NOA 
for the draft EA, although we became aware of this error just prior to 
the publication of the NOA, we were unable to correct the name in the 
published document; however, we did correctly identify the San Manuel 
Band of Serrano Mission Indians in the media bulletin and other public 
outreach materials that accompanied publication of the NOA. Although we 
certainly regret the accidental misidentification of the San Manuel 
Band of Serrano Mission Indians in the NOA, it did not materially 
affect the biological rationale behind the initial proposal of critical 
habitat. In this final rule we correctly identify the San Manuel Band 
of Serrano Mission Indians.
    It was not our intent to disregard the presence of the Tribal 
resources that occur in the vicinity of Unit 1 of the proposed critical 
habitat. Following publication of the August 7, 2007, proposed rule (72 
FR 44232), a private citizen presented us with information identifying 
historical, religious, and cultural resources important to the San 
Manuel Band of Serrano Mission Indians in proposed Unit 1, although 
these lands are not specifically part of the Tribal Trust lands of the 
San Manuel Band of Serrano Mission Indians. In the April 16, 2008, NOA 
for the draft EA (73 FR 20600), we specifically solicited comments from 
the San Manuel Band of Serrano Mission Indians regarding the potential 
impacts of the proposed rule on the San Manuel Band of Serrano Mission 
Indians. We requested this input from the San Manuel Band of Serrano 
Mission Indians in accordance with Secretarial Order 3206 section 
3(B)(4) and E.O. 13007. On April 15, 2008, we transmitted a letter to 
the San Manuel Band of Serrano Mission Indians indicating our interest 
in discussing the proposed designations of critical habitat and 
requested information from the San Manuel Band of Serrano Mission 
Indians that would contribute to the decision process. On May 12, 2008, 
we received an electronic mail response to our letter indicating that 
the San Manuel Band of Serrano Mission Indians would like to coordinate 
with us to discuss the critical habitat designations. We subsequently 
met with representatives of the San Manuel Band of Serrano Mission 
Indians. Through this coordination, we believe we addressed the 
concerns of the San Manuel Band of Serrano Mission Indians in this 
final rule. As a result of our coordination and analysis of all 
information available, we concluded that the designation of critical 
habitat would not adversely impact the San Manuel Band of Serrano 
Mission Indians. We recognize that the San Manuel Band of Serrano 
Mission Indians' ancestral lands include the San Bernardino Mountains, 
including areas that we have designated as critical habitat. From our 
discussion with the representatives of the San Manuel Band of Serrano 
Mission Indians, we do not believe that activities that the San Manuel 
Band of Serrano Mission Indians regularly conducts on federally owned 
lands included in these designations will negatively impact the PCEs or 
adversely modify critical habitat. We do not believe that these 
activities will require a section 7 consultation due to the designation 
of critical habitat. The designation of critical habitat will not 
impose any regulatory or restrictive authority over the San Manuel Band 
of Serrano

[[Page 47714]]

Mission Indians nor change access to or restrict Tribal activities on 
designated lands. Additionally, we determined that the benefits of 
exclusion outweigh the benefits of inclusion for the essential lands 
within Unit 1 identified in this rule and covered by the HMP, which 
includes historical, religious, and cultural resources important to the 
San Manuel Band of Serrano Mission Indians, and we excluded Unit 1 from 
critical habitat (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).

Comments Related to the Draft Economic Analysis

    Comment 16: One comment from the USFS stated that while the draft 
EA quantified one formal section 7 consultation on a revision of the 
LMP for both the SBNF and CNF, the two national forests will conduct 
these consultations separately, and that the CNF portion of the ongoing 
effects consultation will be combined with the informal consultation on 
the CNF's livestock grazing program in Units 13, 14, and 15. The 
comment further stated that the formal section 7 consultation on a 
revision of the LMP in the SBNF will cover existing ongoing effects 
from mining related activities in the national forest, and any future 
consultations would be driven by proposed plans of operations. 
Therefore, the formal consultation on active mining claims in the SBNF 
quantified in the draft EA should be combined with the consultation on 
a revision of the LMP in the SBNF.
    Our Response: Discussions with relevant USFS personnel clarified 
that the SBNF and the CNF will consult separately on a revision of the 
LMP. However, the consultation involving the CNF will also be a formal 
consultation and separate from the consultation on its livestock 
grazing program. It was further clarified that both consultations 
involving the CNF are likely to occur in 2009. The discussions also 
indicated that the formal consultation on a revision of the LMP will 
cover existing ongoing effects from mining related activities in the 
SBNF. Sections A.4 and ES.1.3 in the revised EA have been modified to 
reflect these changes along with relevant changes to administrative 
costs in the various tables and figures.
    Comment 17: One commenter stated that the draft EA does not address 
the potential impact of designating Unit 1 as a critical habitat on 
plans for developing the property (Pan Hot Springs). The commenter 
indicated that these plans include building a new hotel on the property 
in which the geothermal-water-supplied pools would be a major 
attraction. The commenter further indicated that a water sales business 
has been in operation since 1997, selling as much as one million 
gallons a day from the springs on the property.
    Our Response: Sections 3.1.4 and 8.1 in the draft EA acknowledge 
the recreational and commercial development plans of the owner of Pan 
Hot Springs in Unit 1 as communicated by personnel from agencies in the 
area. During the research and drafting period of the draft EA, despite 
repeated attempts to contact the landowner, ENTRIX was not able to 
directly speak with him and confirm the cited plans. Based on the 
information provided by the landowner in the comment letter, it appears 
that the planned developments by the landowner would be on the portion 
of the property that was not included in the proposed critical habitat 
designation, and it is not clear how development plans and the 
continued sale of water for commercial purposes will be impacted by the 
designations of critical habitat, if at all. Therefore, while relevant 
text in the revised EA has been modified to add the additional 
information, no changes to anticipated impacts from the designations of 
critical habitat have been made based on the comment.
    The final EA indicates that there are disproportionate and 
potentially significant costs to the BBCCSD attributable to the 
designation of