Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus), 61936-62002 [E8-23515]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 73, Number 202 (Friday, October 17, 2008)]
[Rules and Regulations]
[Pages 61936-62002]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-23515]



[[Page 61935]]

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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami 
parvus); Final Rule

Federal Register / Vol. 73, No. 202 / Friday, October 17, 2008 / 
Rules and Regulations

[[Page 61936]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0008; 92210-1117-0000-FY08 B4]
RIN 1018-AV07


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys 
merriami parvus)

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 final revised critical habitat for the San Bernardino 
kangaroo rat (Dipodomys merriami parvus) under the Endangered Species 
Act of 1973, as amended (Act). Approximately 7,779 acres (ac) (3,148 
hectares (ha)) of habitat in San Bernardino and Riverside Counties, 
California, are being designated as critical habitat for the San 
Bernardino kangaroo rat. This final revised designation constitutes a 
reduction of approximately 25,516 ac (10,326 ha) from the 2002 
designation of critical habitat for the San Bernardino kangaroo rat.

DATES: This rule becomes effective on November 17, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat will be available on the Internet at https://www.regulations.gov 
and https://www.fws.gov/carlsbad/. 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 designation of critical habitat for the San Bernardino kangaroo rat 
in this final rule. For more information on the taxonomy, biology, and 
ecology of the San Bernardino kangaroo rat, refer to the final listing 
rule published in the Federal Register on September 24, 1998 (63 FR 
51005), the original final critical habitat rule published in the 
Federal Register on April 23, 2002 (67 FR 19812), the proposed rule to 
revise critical habitat published in the Federal Register on June 19, 
2007 (72 FR 33808), and the April 16, 2008, notice of availability of 
the draft economic analysis (DEA) and changes to the proposed rule (73 
FR 20581).

Subspecies Description, Life History, Distribution, Ecology, and 
Habitat

    No new substantial information pertaining to the subspecies 
description, life history, distribution, ecology, or habitat of the San 
Bernardino kangaroo rat was received following the 2007 proposed rule 
to revise critical habitat for this subspecies. Therefore, please refer 
to the final listing rule published in the Federal Register on 
September 24, 1998 (63 FR 51005), and the proposed rule to revise 
critical habitat published in the Federal Register on June 19, 2007 (72 
FR 33808), for a discussion of the subspecies' description, life 
history, distribution, ecology, and habitat.

Previous Federal Actions

    As discussed in the proposed rule to revise critical habitat for 
this subspecies, the Service agreed, as part of a settlement agreement, 
to submit to the Federal Register a proposal to revise critical 
habitat, if prudent, on or before June 1, 2007, and a final rule by 
June 1, 2008, which was later extended to October 1, 2008. We published 
a proposed rule to revise critical habitat in the Federal Register on 
June 19, 2007 (72 FR 33808), and announced the first public comment 
period on the proposed rule. On December 11, 2007 (72 FR 70284), we 
opened a second public comment period on the proposed rule and 
announced our intention to hold two public hearings on the proposed 
rule that were held in San Bernardino, California, on January 10, 2008. 
On April 16, 2008, we published in the Federal Register a notice of 
availability (NOA) announcing the availability of the DEA (dated 
February 6, 2008), opening the third public comment period on the 
proposed rule to revise critical habitat, and announcing changes to the 
proposed rule (73 FR 20581). In addition, on July 29, 2008, we 
published in the Federal Register an NOA announcing the availability of 
an Addendum to the Economic Analysis, opening a fourth public comment 
period (73 FR 43910). This final rule completes our obligations under 
the March 23, 2006, settlement agreement regarding the subject 
subspecies. For a discussion of additional information on previous 
Federal actions concerning the San Bernardino kangaroo rat, refer to 
the final listing rule published in the Federal Register on September 
24, 1998 (63 FR 51005), and the final designation of critical habitat 
published in the Federal Register on April 23, 2002 (67 FR 19812).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed rule 
to revise critical habitat for the San Bernardino kangaroo rat during 
four comment periods. The first comment period opened June 19, 2007 (72 
FR 33808), associated with the publication of the proposed rule, and 
closed August 20, 2007. We received one request for a public hearing 
during this comment period. The second comment period opened December 
11, 2007 (72 FR 70284), associated with the publication of a notice of 
public hearings that were held January 10, 2008, and closed January 25, 
2008. The third comment period opened April 16, 2008 (73 FR 20581), 
associated with the notice of availability of the DEA, and closed May 
16, 2008. The fourth comment period opened July 29, 2008 (73 FR 43910), 
associated with the availability of an addendum to the economic 
analysis, and closed August 13, 2008. During these four public comment 
periods, we contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule to revise critical habitat for this 
subspecies and the associated DEA.
    During the first comment period, we received 12 public comments 
directly addressing the proposed revision of critical habitat: 1 from a 
Federal agency, 1 from a local government, 9 from organizations, and 1 
from an individual. During the second comment period and the January 
10, 2008, public hearings, we received 29 comments directly addressing 
the proposed revision of critical habitat for this subspecies: 4 from 
local governments, 6 from organizations, and 19 from individuals. 
During the third comment period, we received 3 comments directly 
addressing the proposed revision of critical habitat for this 
subspecies and/or the DEA: 1 from a Federal agency and 2 from 
organizations. During the fourth comment period, we received 5 comments 
directly addressing the proposed revision of critical habitat for

[[Page 61937]]

the San Bernardino kangaroo rat and/or the DEA: 3 from organizations, 
and 2 from individuals.

Peer Review

    In accordance with our policy on peer review in Act (16 U.S.C. 1531 
et seq.) activities, published on July 1, 1994 (59 FR 34270), we 
solicited expert opinions from five knowledgeable individuals with 
scientific expertise that included familiarity with the subspecies, the 
geographic region in which it occurs, and conservation biology 
principles. We received responses from two of the peer reviewers. The 
peer reviewers generally concurred with our methods and conclusions and 
indicated that the Service did a thorough job of delineating critical 
habitat using the best available scientific information.
    We reviewed all comments received from the peer reviewers and the 
public for substantive issues and new information regarding the 
designation of critical habitat for the San Bernardino kangaroo rat. 
All public comments are addressed in the following summary and 
incorporated into the final rule as appropriate.

Peer Reviewer Comments

    Comment 1: One peer reviewer commented that in the 2007 proposed 
rule to revise critical habitat, the Service's non-inclusion of areas 
designated as critical habitat in 2002 was not supported in the 
document with empirical data or some type of population viability 
modeling.
    Our Response: Our revised critical habitat designation is 
substantially smaller than the 2002 critical habitat designation. Given 
the new information that became available to us in the five years since 
the previous designation, we find that we erroneously designated some 
areas. Areas previously designated in 2002 but not designated in this 
revised rule do not meet the definition of critical habitat. The 
changes in this rule are due to several factors. Better biological 
information allowed us to more specifically define primary constituent 
elements (PCEs) for this species, and site visits in December 2006 and 
January 2007 allowed us to more precisely define the areas that meet 
the definition of critical habitat on the ground. This allowed us to 
remove areas that do not meet our criteria for identifying the physical 
or biological features that are essential to the conservation of the 
species. The 2002 critical habitat designation included areas in which 
few occurrences were recorded. Such areas of low-density occupation or 
sporadic occupancy were removed from the proposed revised designation 
because they do not support core populations (i.e., areas where the 
subspecies has been repeatedly detected through live trapping). 
Finally, we employed refined mapping techniques in the current revision 
to more precisely map areas that contain PCEs. This more refined 
approach allowed us to remove areas that do not meet the definition of 
critical habitat. See the ``Summary of Changes From the 2002 Critical 
Habitat Designation'' and ``Criteria Used To Identify Critical 
Habitat'' sections of this final rule for more information.
    We based the proposed revision of critical habitat for the San 
Bernardino kangaroo rat on the best available scientific and commercial 
data including peer-reviewed published literature, gray literature 
(non-published or non-peer-reviewed survey or research reports), survey 
information, Geographic Information System coverage data, and site 
visits with subspecies experts. We delineated proposed critical habitat 
using criteria based on the biological needs of the subspecies 
according to the best available science. Application of these criteria 
(see ``Criteria Used To Identify Critical Habitat'' section of this 
final rule) results in the determination of the physical and biological 
features that are essential to the conservation of this subspecies, as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the subspecies. The areas 
proposed as critical habitat: (1) Support core populations that are 
considered necessary for conservation of the subspecies including areas 
demographically disconnected from the largest populations, but which 
may be important for the long-term conservation of the subspecies; and 
(2) include non-degraded alluvial fans, washes, floodplains, and 
adjacent upland areas with appropriate soils and vegetation. At this 
time, a population viability analysis has not been completed for the 
San Bernardino kangaroo rat. When delineating critical habitat for the 
San Bernardino kangaroo rat, we used the best available scientific 
information to determine those areas containing the features essential 
to its conservation.
    Comment 2: One peer reviewer commented on the reduction of critical 
habitat from what was designated in 2002. The peer reviewer stated that 
the 2007 proposed rule to revise critical habitat explains that this 
reduction is a result of additional knowledge about specific habitat 
requirements and occurrence data. The peer reviewer further questioned 
if the 2002 critical habitat designation was too superficial as a 
result of being rushed, or if the 2007 proposed revision to the 
critical habitat designation is overly conservative. The peer reviewer 
also suggested that we provide additional rationale for not designating 
areas with low population density or low habitat quality.
    Our Response: The Act defines critical habitat as (1) the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical or biological features 
(a) essential to the conservation of the species, and (b) which may 
require special management considerations or protection, and (2) 
specific areas outside the geographical area occupied by the species at 
the time it is listed upon a determination by the Secretary that such 
areas are essential for the conservation of the species. The reduction 
in total area from what was designated in 2002 is primarily the result 
of: (1) Exclusions of habitat under section 4(b)(2) of the Act; (2) 
revision of the primary constituent elements: (3) revision of our 
criteria used to identify critical habitat; and (4) removal of lands 
within the geographical area occupied by the subspecies at the time it 
was listed that do not contain the physical or biological features as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement essential to the conservation of the subspecies.
    In 2002, we used the best available scientific information at that 
time to delineate critical habitat and do not consider the 2002 
designation to be ``superficial.'' However, as acknowledged by the peer 
reviewer, we have significant additional occurrence data and knowledge 
about specific habitat requirements of this subspecies that was not 
known when we first designated critical habitat for the San Bernardino 
kangaroo rat in 2002. We utilized this data to appropriately revise the 
primary constituent elements and criteria used to identify critical 
habitat consistent with the statutory obligations of the Act. In 
addition, since 2002, case law has developed that has helped to further 
our understanding of the statutory obligations of the Act and the 
definition of critical habitat (e.g., The Cape Hatteras Access 
Preservation Alliance v. U.S. Dep't of the Interior, 344 F. Supp. 2d 
108 (D.D.C. 2004); Home Builders Ass'n of N. Cal. v. U.S. Fish and 
Wildlife Service, U.S. Dist. LEXIS 80255 (E.D. Cal. 2006); and Arizona 
Cattle Growers' Ass'n v. Kempthorne, 534 F. Supp. 2d 1013 (D. Ariz. 
2008)). Thus, we have refined our approach to this critical habitat 
designation to insure compliance with the Act, including the 
identification of the geographical areas occupied by the subspecies at 
the time of listing, the

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identification of physical or biological features (and primary 
constituent elements) essential to the conservation of the subspecies, 
determination of any areas outside the geographical area occupied by 
the subspecies at the time of listing that are essential for the 
conservation of the subspecies, and appropriate exclusions under 
section 4(b)(2) of the Act. A complete discussion of how data collected 
since the 2002 designation was utilized to refine the proposed 
designation can be found in the ``Summary of Changes From the 2002 
Critical Habitat Designation'' and ``Summary of Changes From the 2007 
Proposed Rule To Revise Critical Habitat'' sections of this final rule.
    As discussed in the ``Criteria Used To Identify Critical Habitat'' 
section of this final rule, we delineated critical habitat for the San 
Bernardino kangaroo rat using the following criteria: (1) Areas 
occupied by the subspecies at the time of listing, and currently 
occupied, within the historical range of the subspecies; (2) areas 
retaining fluvial dynamics containing one or more of the PCEs for the 
subspecies; (3) areas supporting a core population of the subspecies; 
and (4) areas demographically disconnected from the largest 
populations, but which may be important for the long-term recovery of 
the subspecies. Application of these criteria results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, identified as the 
subspecies' 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. Specifically, as noted by the 
commenter, some areas occupied at low densities are not included in the 
final revised critical habitat designation. Areas occupied at low 
densities are not likely to contribute to recovery of the subspecies, 
and we do not have information suggesting that the areas in question 
support core populations or information suggesting these areas would be 
capable of supporting a core population in the near future.
    Conservation (i.e., recovery) is defined in section 3 of the Act as 
the ``use of all methods and procedures which are necessary to bring 
any endangered species or threatened species to the point at which the 
measures provided pursuant to this Act are no longer necessary.'' In 
accordance with section 4(a)(1) of the Act, we determine if any species 
is an endangered or threatened species (or revise its listed status) 
because of any of the five threat factors identified in the Act (i.e., 
(A) present or threatened destruction, modification, or curtailment of 
its habitat or range; (B) overutilization for commercial, recreational, 
scientific, or educational purposes; (C) disease or predation; (D) the 
inadequacy of existing regulatory mechanisms; or (E) other natural or 
manmade factors affecting its continued existence). Therefore, 
conservation, or recovery, is achieved when a five factor analysis 
indicates that current and future threats have been minimized to an 
extent that the species is no longer in danger of extinction or likely 
to become endangered in the foreseeable future. Recovery is a dynamic 
process requiring adaptive management of threats and there are many 
paths to accomplishing recovery of a species. We believe that the lands 
identified in this rule as meeting the definition of critical habitat 
are adequate to ensure the conservation of the San Bernardino kangaroo 
rat throughout its extant range based on the best available scientific 
information at this time.
    We recognize that some efforts that positively contribute to the 
conservation of this subspecies may occur outside the boundaries of 
this final designation; however, we do not believe that this 
designation is ``conservative.'' Rather, our proposed designation in 
combination with the NOA, which announced the addition of areas to the 
proposed designation, and this final designation accurately describe 
all specific areas meeting the statutory definition of critical habitat 
for the San Bernardino kangaroo rat. See the ``Summary of Changes From 
the 2002 Critical Habitat Designation'' and ``Summary of Changes From 
the 2007 Proposed Rule To Revise Critical Habitat'' sections of this 
final rule for more information.
    Comment 3: One peer reviewer commented that the Service's focus on 
core populations as a primary criterion for designating critical 
habitat is logical and appropriate. The reviewer further commented that 
while the core populations may be necessary for conservation of the San 
Bernardino kangaroo rat, they may not be sufficient in area or 
connectivity to achieve a reasonable probability of persistence in the 
face of periodic flooding and drought. Another peer reviewer commented 
that the proposed revision to critical habitat includes dispersal 
corridors and habitat connectivity necessary for the subspecies.
    Our Response: In this final revised designation we focused 
primarily on core populations in undisturbed habitat in the Santa Ana 
River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe 
that protecting these three largest core populations is necessary for 
the conservation of the San Bernardino kangaroo rat. In response to 
this and other comments, we revised our criteria to also capture 
occupied areas demographically disconnected from the three largest 
populations, but which may be important for the long-term conservation 
of the subspecies (for a detailed discussion see ``Criteria Used To 
Identify Critical Habitat'' section of this final rule). We then re-
evaluated the proposed critical habitat boundaries and included in the 
designation additional areas in Mill Creek, Plunge Creek, Cable Creek 
wash, and Bautista Creek. We are not designating small, isolated areas 
of degraded habitat or areas devoid of fluvial processes because such 
areas likely only support unsustainable populations that would not 
contribute to the recovery of the subspecies. We believe that with 
these revisions, we included sufficient lowland and upland alluvial 
sage scrub habitat within a sufficient number of critical habitat units 
to ensure connectivity and persistence of the subspecies following 
periodic flooding and drought.
    Comment 4: One peer reviewer had concerns about excluding areas 
from the critical habitat designation that are protected by a 
management or conservation agreement, particularly because the proposed 
exclusion of those areas increases the degree to which critical habitat 
in all three units is fragmented. This reviewer questioned whether 
proposed exclusions render the remaining critical habitat areas 
sufficient for the subspecies' recovery if management actions on the 
excluded areas fail to preserve their value to the subspecies. Another 
peer reviewer agreed with the logic of excluding from the final revised 
critical habitat designation areas that are covered by management plans 
that benefit the San Bernardino kangaroo rat, but the reviewer 
questioned whether monitoring would be conducted or reports would be 
required ensuring compliance with these plans, or whether the plans are 
having the desired effects.
    Our Response: Section 4(b)(2) of the Act directs the Secretary to 
designate critical habitat on the basis of the best scientific data 
available and after taking into consideration the economic impacts, 
national security impacts, and any other relevant impacts of specifying 
any particular area as critical habitat. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area

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as critical habitat, unless the failure to designate an area as 
critical habitat will result in the extinction of the species. The 
Service recognizes that 80 percent of federally listed species occur 
either partially or solely on private lands (Crouse et al. 2002) and we 
will only achieve recovery of federally listed species with the 
cooperation of private landowners. As discussed in the ``Conservation 
Partnerships on Non-Federal Lands'' section below, we believe that 
designation of critical habitat on private lands can negatively impact 
the working relationships and conservation partnerships we have formed 
with private landowners.
    In making the Woolly-Star Preserve Area (WSPA) Management Plans, 
the Former Norton Air Force Base Conservation Management Plan (CMP), 
the Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP), and the Cajon Creek Habitat Conservation Management Area 
Habitat Enhancement and Management Plan (Cajon Creek HCMA HEMP) 
exclusions, we evaluated the benefits of designating non-Federal lands 
that may not have a Federal nexus for consultation while considering if 
our existing partnerships have, or will, result in greater conservation 
benefits to the San Bernardino kangaroo rat and its habitat than would 
likely result from consultation on a designation. We balanced the 
benefits of inclusion against the benefits of exclusion (i.e., the 
benefits of preserving partnerships and encouraging development of 
additional HCPs and other conservation plans in the future). All areas 
excluded under 4(b)(2) that have completed habitat conservation plans 
(HCPs) or other Service-approved management plans receive long-term 
protection and conservation that provides equivalent or greater 
conservation benefit to the San Bernardino kangaroo rat than would 
likely result from including these areas in the designation, and the 
exclusion of lands covered by these plans will not jeopardize the 
continued existence of the subspecies. The conservation objectives in 
these plans for the San Bernardino kangaroo rat, and the implementation 
status of these plans to date, are discussed in the ``Exclusions Under 
Section 4(b)(2) of the Act'' section below. The conservation and 
management of San Bernardino kangaroo rat habitat as described in these 
management plans have reduced and will continue to remove or reduce 
known threats to the subspecies and its habitat, contributing to the 
survival and recovery of this subspecies. We believe the exclusions we 
made in this final revised rule are legally supported under section 
4(b)(2) of the Act and scientifically justified.
    The exclusion of critical habitat does not dismiss or lessen the 
value of these areas to the overall conservation of this subspecies. 
Rather, we believe that the judicious exclusion of specific areas of 
non-Federal lands from critical habitat designations, where we have 
developed close partnerships with non-Federal land owners that resulted 
in the development of HCPs or other voluntary conservation plans, can 
contribute to species recovery and provide a superior level of 
conservation than the designation of critical habitat alone. As 
described in detail in the ``Exclusions Under Section 4(b)(2) of the 
Act'' section below, we determined that the benefits of excluding areas 
covered by the WSPA Management Plans, the Former Norton Air Force Base 
CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP 
outweigh the benefits of designating these lands, and that these 
exclusions will not result in the extinction of the San Bernardino 
kangaroo rat. Surveys and monitoring will continue to be required for 
areas excluded based on completed management plans to ensure they are 
effective (see ``Areas Considered for Exclusion Under Section 4(b)(2) 
of the Act'' section below for more information).
    Comment 5: One peer reviewer discussed our identification of PCEs 
for the San Bernardino kangaroo rat, and specifically agreed that the 
PCEs are based on the best available science, and that the identified 
PCEs appropriately provide for the conservation of the subspecies.
    Our Response: The description of the PCEs for the San Bernardino 
kangaroo rat is based on the best available scientific and commercial 
data regarding the subspecies, including a compilation of data from 
peer-reviewed, published literature; unpublished or non-peer reviewed 
survey and research reports; and opinions of biologists knowledgeable 
about the San Bernardino kangaroo rat and its habitat. Consequently, 
the PCEs, as described in this final rule, represent our best 
assessment of what habitat components, in the appropriate quantity and 
spatial arrangement, are essential to the conservation of the 
subspecies.

Public Comments

Comments Related to Criteria Used To Identify Critical Habitat
    Comment 6: Two commenters stated that the proposed rule is flawed 
because it fails to include several significant areas of occupied 
habitat previously designated as critical habitat in 2002 that support 
one or more of the PCEs: (1) Three areas in the Santa Ana River wash; 
(2) the Etiwanda Fan; (3) four areas in Cajon/Lytle Creeks; and (4) two 
areas in the San Jacinto River. The commenters stated that the Service 
provided no data to support the conclusion that these areas are not 
occupied by the subspecies (e.g., trapping data) or do not contain the 
PCEs. They further stated that several areas (i.e., Etiwanda Fan, areas 
in Cajon/Lytle Creeks) that were not included in the proposed 
designation are currently occupied to some extent and, therefore, must 
contain the PCEs required by the species. One commenter stated that all 
populations inclusive of peripheral populations are essential for 
recovery and that not including all occupied areas as critical habitat 
will continue to fragment and drive the species closer to the brink of 
extinction.
    Another commenter stated that according to a review of occurrence 
information for the San Bernardino kangaroo rat and habitat assessments 
conducted in 2007, the following areas are currently occupied by the 
subspecies and contain the PCEs, and therefore, should have been 
included in the proposed designation: (1) Three areas along Plunge 
Creek in the Santa Ana River watershed; (2) one area in the Santa Ana 
River; (3) one area in Lytle Creek; (4) Cable Creek in the Lytle/Cajon 
Creeks watershed; (5) Bautista Creek in the San Jacinto River 
watershed; and (6) the Etiwanda Fan. Several commenters also called for 
the reevaluation of Plunge Creek, the Santa Ana River in Redlands, 
Lytle Creek near the 210 Freeway, Cable Creek, and the Etiwanda Fan.
    Certain areas that were not included in the June 19, 2007, proposed 
revision to critical habitat (72 FR 33808) were commented on more 
frequently than others mentioned above: Specifically, Plunge Creek, 
Mill Creek, the Cable Creek wash, and Bautista Creek. Multiple comments 
received during the first two comment periods and the public hearings, 
including comments received from biologists familiar with the San 
Bernardino kangaroo rat, indicated the importance of these areas as 
confirmed occupied habitat containing the PCEs, and which retain 
fluvial input and that may be necessary for the long-term conservation 
of the subspecies.
    Our Response: For a detailed discussion of the areas previously 
designated as critical habitat that are not included in this revised 
designation, see the ``Summary of Changes From the

[[Page 61940]]

2002 Critical Habitat Designation'' section of this final rule. Under 
section 3(5)(C) of the Act, critical habitat shall not include the 
entire geographical area which can be occupied by the species unless 
otherwise determined by the Secretary. Critical habitat is defined in 
section 3 of the Act as (1) 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 (a) 
essential to the conservation of the species and (b) that may require 
special management considerations or protection; and (2) specific areas 
outside the geographical 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 proposed rule to revise 
critical habitat, we considered the geographical area occupied by the 
subspecies at the time of listing, and within that broad geographical 
area, identified those areas that, based on the best available 
scientific and commercial data, contain the physical and biological 
features essential to the subspecies' conservation. We believe that our 
proposed designation, including changes to the proposed designation 
outlined in the April 16, 2008, NOA (73 FR 20581), and this final 
designation accurately describe all areas meeting the definition of 
critical habitat for the San Bernardino kangaroo rat.
    As discussed in the proposed rule to revise critical habitat and 
the April 16, 2008, NOA announcing changes to the proposed rule, we 
identified critical habitat for this subspecies based on several 
criteria. Application of these criteria (see ``Criteria Used To 
Identify Critical Habitat'' section of this final rule) results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, as identified by the 
PCEs in the appropriate quantity and spatial arrangement essential to 
the conservation of the subspecies. Thus, not all areas supporting the 
identified PCEs will meet the definition of critical habitat. The areas 
designated as critical habitat (1) support core populations that are 
considered necessary for conservation of the subspecies, including 
areas demographically disconnected from the largest populations that 
may be important for the long-term conservation of the subspecies; and 
(2) include non-degraded alluvial fans, washes, floodplains, and 
adjacent upland areas with appropriate soils and vegetation.
    We recognize that our designation does not encompass all known 
occurrences of this subspecies as noted by the commenters. Small, 
isolated areas of degraded habitat or areas devoid of fluvial processes 
are likely to only support unsustainable populations that would not 
contribute to the recovery of the subspecies. Although we are not 
designating all known occurrences of the San Bernardino kangaroo rat, 
we believe the criteria we used to identify areas that contain the 
features essential to the conservation of the subspecies, and which are 
included in the final revised critical habitat designation, are 
adequate to ensure the conservation of the subspecies throughout its 
extant range. Species that are protected across their ranges are 
expected to have lower likelihoods of extinction (Soule and Simberloff 
1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating 
multiple locations across the range of the subspecies to prevent range 
collapse.
    In light of significant comments received during the comment 
periods for the proposed rule on areas that are essential to the 
subspecies and should be included in the designation, and new 
information received, we revised our criteria used to identify critical 
habitat to capture additional self-sustaining populations of San 
Bernardino kangaroo rats necessary for recovery (see ``Criteria Used To 
Identify Critical Habitat'' section below for more information). We 
then re-evaluated the proposed critical habitat boundaries and included 
in the designation additional areas in Mill Creek, Plunge Creek 
(including areas providing habitat connectivity of the Plunge Creek 
wash with the Santa Ana River wash), Cable Creek wash, and Bautista 
Creek. These areas are currently designated as critical habitat for the 
San Bernardino kangaroo rat (67 FR 19812, April 23, 2002); however, we 
did not propose these areas as critical habitat in the June 19, 2007 
(73 FR 33808), proposed revision to critical habitat, but announced the 
addition of these areas as changes to the proposed rule in the April 
16, 2008, NOA. See the ``Summary of Changes From the 2007 Proposed Rule 
to Revise Critical Habitat'' and the ``Unit Descriptions'' sections of 
this final rule for more information.
    Comment 7: One commenter indicated concerns about the following 
statement made in the proposed rule: ``Portions of the habitat 
downstream of the Bautista Creek confluence have been or are in the 
process of being developed or are being used for water conservation 
activities and therefore this habitat does not contain the PCEs.'' The 
commenter indicated that these areas should be included in critical 
habitat and further stated that no data was presented in the proposed 
rule indicating that these areas are no longer occupied, no longer 
contain the PCEs; and if degraded, how these areas have become degraded 
over the last five years.
    Our Response: In the 2007 proposed rule, we discussed an integrated 
water recharge and recovery program to be implemented by Eastern 
Municipal Water District at the confluence of the San Jacinto River and 
Bautista Creek within existing critical habitat Unit 3. The project was 
expected to impact approximately 37 ac (15 ha) of floodplain and upland 
habitat (Service 2006, p. 21). The Service issued a biological opinion 
for this project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5), 
which found that the proposed action would not jeopardize the continued 
existence of the subspecies nor adversely modify the currently 
designated critical habitat. Although Map 4 of the proposed rule (72 FR 
33808) depicts these lands within the boundary of proposed critical 
habitat Unit 3, the text of the proposed rule explained that we were 
not proposing to include these lands as revised critical habitat 
because they had been addressed by the section 7 consultation and 
biological opinion, and the proposed action would permanently impact 
this habitat. The water recharge and recovery program lands total 
approximately 39 ac (16 ha), not 37 ac (15 ha) as previously reported 
in the proposed rule (72 FR 33808), all of which are currently 
designated as critical habitat for the San Bernardino kangaroo rat. 
These approximately 39 ac (16 ha) of lands are divided into five 
individual outparcels ranging in size from less than an acre to 35 ac 
(14 ha) and each areas is surrounded by other lands that we did include 
in the proposed revision to designated critical habitat. The commenter 
is correct in pointing out that this area has not yet been developed 
and the area does currently contain the physical and biological 
features essential to the conservation of this subspecies, as 
identified by the PCEs in the appropriate quantity and spatial 
arrangement. Furthermore, as indicated in the biological opinion, we 
are aware that this area is occupied.
    Following publication of the proposed rule to revise the critical 
habitat designation, several surveys were conducted within these 39 ac 
(16 ha) in association with the integrated water recharge and recovery 
project. These surveys have indicated that the population of San 
Bernardino kangaroo rats in these areas is larger than previously 
believed and exceeds what we estimated the population to be in

[[Page 61941]]

2006. Based on these survey results, the Army Corps of Engineers 
requested that we re-initiate consultation on this project. Because 
these lands are currently designated as critical habitat and the maps 
indicating areas proposed as critical habitat included these areas (72 
FR 33808), and in light of the public comment, new survey data and re-
initiation of consultation on the Eastern Municipal Water District 
project, we included these 39 ac (16 ha) in Unit 3 as lands that meet 
the definition of critical habitat. We believe that inclusion of these 
39 ac (16 ha) is a logical outgrowth of the proposed rule and is 
scientifically sound and legally justified. We determined, however, 
that these 39 ac (16 ac) should be excluded from the final critical 
habitat designation under section 4(b)(2) of the Act. See the ``Summary 
of Changes From the 2007 Proposed Rule To Revise Critical Habitat'' and 
``Exclusions Under Section 4(b)(2) of the Act'' sections of this final 
rule for more information.
    Comment 8: Several commenters stated that the Service cannot focus 
primarily on its definition of core populations (i.e., areas where the 
subspecies was repeatedly detected through live trapping) when false 
negatives occur from live trapping surveys 20 percent of the time. They 
further stated that the Service's definition of core populations is 
inappropriate, would result in substantial San Bernardino kangaroo rat 
populations being excluded from critical habitat, and should be 
redefined. A number of commenters suggested peripheral or sporadically 
occupied locations are essential for conservation of the subspecies. 
One commenter stated that areas currently having low populations should 
not be removed from critical habitat. The commenter stated that the 
Service's assertion that some viable San Bernardino kangaroo rat 
populations do not fit the definition of a core population, and are 
therefore less important, has no biological basis for an animal that 
has already lost 90 percent of its historical range. The commenter 
stated that by not including potential or occupied habitat that has 
been degraded as critical habitat would allow private landowners and 
public agencies the ability to further degrade those areas that are 
important to the conservation of the San Bernardino kangaroo rat.
    Our Response: As discussed in the ``Criteria Used To Identify 
Critical Habitat'' section of this final rule, we delineated critical 
habitat for the San Bernardino kangaroo rat using the following 
criteria: (1) Areas occupied by the subspecies at the time of listing, 
and currently occupied, within the historical range of the subspecies; 
(2) areas retaining fluvial dynamics containing one or more of the PCEs 
for the subspecies; (3) areas supporting a core population of the 
subspecies; and (4) areas demographically disconnected from the largest 
populations, but which may be important for the long-term recovery of 
the subspecies. Application of these criteria results in the 
determination of the physical and biological features that are 
essential to the conservation of this subspecies, 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. Based on information provided 
in public comments, these criteria were revised after the June 19, 2007 
(72 FR 33808), proposed revision to critical habitat to capture 
essential features supporting additional self-sustaining populations of 
San Bernardino kangaroo rats (see ``Criteria Used To Identify Critical 
Habitat'' section below for more information). As a result, we added 
four areas totaling approximately 1,579 ac (639 ha) to the proposed 
revision as announced in the April 16, 2008 NOA (73 FR 20581). We 
believe our final designation accurately describes all specific areas 
meeting the definition of critical habitat for the San Bernardino 
kangaroo rat. We acknowledge that false negatives can occur from live 
trapping surveys for San Bernardino kangaroo rats; however, as required 
under the Act, we used the best available scientific information in 
determining areas occupied by this subspecies.
    We recognize that our designation of critical habitat for the San 
Bernardino kangaroo rat does not encompass all known occurrences of 
this subspecies as noted by the commenters. In this designation, we 
focused primarily on core populations (i.e., areas where the subspecies 
was repeatedly detected through live trapping) in undisturbed habitat 
in the Santa Ana River, Lytle/Cajon Creeks, and the San Jacinto River 
washes. We believe protecting the largest core populations is necessary 
for recovery of the subspecies. Small, isolated areas of degraded 
habitat or areas devoid of fluvial processes are likely to only support 
unsustainable populations that would not contribute to the recovery of 
this subspecies. Although we are not designating all known occurrences 
of the San Bernardino kangaroo rat, we believe our criteria are 
sufficient, and therefore the designation is adequate, to ensure the 
conservation of this subspecies throughout its extant range based on 
the best available information at this time. We recognize that the 
designation of critical habitat may not include all of the habitat that 
may eventually be determined to be necessary for the recovery of the 
subspecies, and critical habitat designations do not signal that 
habitat outside of the designation is unimportant or may not contribute 
to recovery. Areas outside the final critical habitat designations will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act, and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act.
    Comment 9: One commenter cited statements in the proposed rule that 
several areas were not included in the proposed designation because 
they ``contain habitat that has been degraded'' and requested 
justification as to why no regulatory mechanisms were triggered in the 
past to prevent habitat destruction in these areas since they were 
included in the 2002 designation.
    Our Response: As explained above in response to comment 2, the 
reduction in total area from what was designated in 2002 is primarily 
the result of: (1) Exclusions of habitat under section 4(b)(2) of the 
Act; (2) revision of the primary constituent elements; (3) revision of 
our criteria used to identify critical habitat; (4) and removal of 
lands within the geographical area occupied by the subspecies at the 
time it was listed that do not contain the physical or biological 
features as identified by the PCEs in the appropriate quantity and 
spatial arrangement essential to the conservation of the subspecies.
    We have significant additional occurrence data and knowledge about 
specific habitat requirements of this species that was not known when 
we first designated critical habitat for the San Bernardino kangaroo 
rat in 2002. We utilized this data to revise the primary constituent 
elements and criteria used to identify critical habitat consistent with 
the statutory obligations of the Act and applicable case law (see the 
``Summary of Changes From the 2002 Critical Habitat Designation'' 
section of this final rule for more information).
    As pointed out by the commenter, there are areas of currently 
designated critical habitat that were removed in part due to habitat 
degradation and/or the determination that the areas do not contain the 
physical and biological features essential to the conservation of this 
subspecies. Some of these areas likely did not support the physical and 
biological features essential to the

[[Page 61942]]

conservation of the subspecies in 2002, when critical habitat was first 
designated (see ``Summary of Changes'' section). We have revised the 
PCEs since the 2002 designation based on new information and a better 
understanding of the statutory obligations of the Act. Furthermore, we 
diligently reviewed all areas considered for designation to demonstrate 
existence of the physical and biological features essential to the 
conservation of this subspecies within the geographical area occupied 
by this subspecies at listing.
    Other areas have become degraded since critical habitat was 
designated. Critical habitat receives protection under section 7 of the 
Act through the prohibition against Federal agencies carrying out, 
funding, or authorizing the destruction or adverse modification of 
critical habitat. Section 7(a)(2) of the Act requires consultation on 
Federal actions that may affect critical habitat. However, there are a 
number of reasons why designated critical habitat can become degraded 
without triggering consultation.
    The designation of critical habitat does not affect land ownership 
or establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Generally, habitat may degrade through time due to 
lack of management. A critical habitat designation does not force a 
landowner to manage their land to the benefit of a species. 
Furthermore, proposed projects or actions occurring in critical habitat 
that do not involve a Federal nexus are not subject to the section 7 
prohibition against destruction or adverse modification of critical 
habitat and, therefore, no consultation is required for those projects 
to occur. Where the consultation requirements of section 7(a)(2) do 
apply, an analysis would only result in a finding of destruction or 
adverse modification if the project was expected to impact the 
capability of the critical habitat unit as a whole to perform its 
conservation function for the subspecies. Projects may adversely impact 
the physical and biological features essential to the conservation of a 
species within a critical habitat unit without impairing the unit's 
conservation role and function for the species. For example, the 
Service completed formal section 7 consultation on the Lytle Creek 
North Master Planned Community in existing critical habitat Unit 2. In 
our Biological Opinion we determined that the proposed action was not 
likely to jeopardize the continued existence of the subspecies nor 
result in the destruction or adverse modification of critical habitat 
(Service 2003a, p. 45, FWS-SB-1640.11), even though the project 
resulted in the loss of some designated critical habitat. We have not 
consulted on any projects within designated critical habitat where we 
determined that project implementation would destroy or otherwise 
adversely modify critical habitat such that the designated unit could 
no longer properly function and support the essential features for 
which it was designated. Finally, in the event of a destruction or 
adverse modification finding, the landowner's obligation is not to 
restore or recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    Comment 10: Two commenters stated that critical habitat should 
include linkage corridors and address connectivity issues relevant to 
the San Bernardino kangaroo rat. One commenter stated that arguments in 
the proposed rule to remove specific areas within the Santa Ana River 
watershed show a limited understanding of the habitat needs and the 
corridor connectivity issues that are relevant to this subspecies. One 
commenter further stated that the critical habitat delineated in the 
proposed revision to critical habitat shows a limited, single-species 
perspective. Several commenters stated that continuity between 
populations must be maintained.
    One commenter stated that, through the proposed rule, fragments of 
critical habitat were created (i.e., Plunge Creek) and populations 
removed because they are believed to be isolated from perhaps larger 
populations (i.e., Etiwanda Fan, Cable Creek, and Bautista Creek) and 
that the goal for the designation should be to form linkages between 
occupied areas, which reduce genetic isolations, allow populations to 
re-colonize following local extinctions from stochastic events, and 
migrate in response to environmental change.
    Our Response: We agree that linkages are important to reduce 
genetic isolation and to allow for re-colonization and migration. 
Included in the criteria for defining the physical and biological 
features within occupied habitat for inclusion in the critical habitat 
designation are areas adjacent to and between San Bernardino kangaroo 
rat occurrence points that maintain connectivity of occurrences in one 
continuous patch of suitable habitat. We maintained connectivity of 
core populations within each of the proposed critical habitat units. 
However, in some areas there are geographical barriers to connectivity, 
such as manmade structures or large expanses of unsuitable habitat. 
These areas are not likely to support actual movement of San Bernardino 
kangaroo rats and do not contain the physical and biological features 
essential to the conservation of this subspecies, and therefore do not 
meet the definition of critical habitat and are not included in this 
final designation. As announced in the NOA for the draft economic 
analysis (73 FR 20581), we are including in the final revised critical 
habitat designation areas in and around Plunge and Mill Creeks to 
increase connectivity in Unit 1. Furthermore, we are including portions 
of Cable Creek (Unit 4) and Bautista Creek (Unit 5) in the designation 
of critical habitat as these areas may be important for the long-term 
conservation of this subspecies. See the ``Summary of Changes From the 
2007 Proposed Rule To Revise Critical Habitat'' and the ``Unit 
Descriptions'' sections of this final rule for more information.
    Designation of these areas within the Santa Ana River, Lytle/Cajon 
Creeks, and San Jacinto River watersheds is based on data and 
information received during the comment periods from these and other 
commenters and creates additional connectivity within the designation. 
We responded to all data and scientific information received during the 
comment periods and did not receive any other data indicating that 
additional areas within the Santa Ana River watershed, or elsewhere 
within the range of the San Bernardino kangaroo rat, meet the 
definition of critical habitat. We agree with the commenter that this 
final designation is limited in perspective to a single subspecies, the 
San Bernardino kangaroo rat. It is outside the scope of this final rule 
to address conservation need of other species within a single species 
critical habitat designation.
    Comment 11: One commenter asserted that the Service's statement in 
the 2007 proposed rule that channelized areas in the San Jacinto River 
prevent connectivity with core populations is unjustified, and that we 
provided no evidence indicating that the PCEs are not present or that 
these areas do not provide connectivity. Several commenters stated that 
channelized creeks (such as portions of Cable and Bautista creeks) 
should contain a natural bottom with islands of habitat that the 
subspecies could use as corridor habitat, utilizing patches of habitat 
as ``stepping stones'' and temporary refugia as they disperse.
    Our Response: Channelized areas are not included in this 
designation because they do not provide suitable habitat to sustain San 
Bernardino kangaroo rat populations beyond the next storm event, which 
could flood the channels

[[Page 61943]]

with high-velocity flows from bank to bank, eliminating populations 
within the channelized areas. Furthermore, we have no evidence to 
suggest that this subspecies utilizes channelized areas (some of which 
are lined with concrete) to successfully migrate between populations. 
We agree that channels with natural bottoms and islands of habitat 
could provide better opportunities for dispersal between populations. 
However, these ``stepping stones'' are not in place at this time, and 
we are not including these channelized areas in the designation of 
critical habitat as they do not currently meet the definition of 
critical habitat.
    Comment 12: One commenter stated that construction technologies 
should be explored that would create or sustain San Bernardino kangaroo 
rat habitat. The commenter also stated that a hydrologic analysis of 
the existing levees, detention basins, and other flood control 
structures should be completed to determine if these structures are 
still required. Another commenter stated that areas along the Santa Ana 
River are important, as re-engineering of flood control features can 
create appropriate conditions for the San Bernardino kangaroo rat.
    Our Response: We agree that flood control and water conservation 
structures contributed to the loss of suitable habitat for the San 
Bernardino kangaroo rat by altering hydrological processes, and we 
agree that sustaining areas where natural hydrological processes remain 
is important to the conservation of this subspecies. Although studies 
of construction technologies and investigations of the necessity for 
existing hydrological structures could benefit the conservation of this 
subspecies in the future, we do not currently have this information and 
we were not able to include an analysis of such information in making 
our designation of critical habitat. When delineating critical habitat 
for the San Bernardino kangaroo rat, we used the best available 
scientific information to determine those areas that meet the 
definition of critical habitat.
    Comment 13: One commenter stated that the proposed rule was flawed 
because the Service failed to include unoccupied areas for recovery. 
The commenter stated that the Service ignored the recovery goal of 
critical habitat by failing to include historical habitat that may not 
be currently occupied, but could provide an opportunity for the 
subspecies' recovery. The commenter further stated that the Service 
must consider and evaluate the recovery benefits of critical habitat 
designation in order to promulgate a legally valid critical habitat 
rule. One commenter stated that areas outside the geographical area 
occupied by the subspecies included in the 2002 designation are still 
essential to the conservation of the subspecies and should have been 
included in the 2007 proposed rule.
    Our Response: The Service may designate as critical habitat areas 
outside of the geographical area occupied by a species at the time it 
was listed when we can demonstrate that those areas are essential for 
the conservation of the species (section 3(5)(A)(ii) of the Act). 
Likewise, we can designate as critical habitat areas ``outside the 
geographical area presently occupied by a species only when a 
designation limited to its present range would be inadequate to ensure 
the conservation of the species.'' (50 CFR 424.12(e)).
    Conservation (i.e., recovery) is achieved when a five factor 
analysis performed pursuant to section 4(a)(1) if the Act indicates 
that current and future threats have been minimized to an extent that 
the species is no longer threatened with extinction in the foreseeable 
future. Recovery is a dynamic process requiring adaptive management of 
threats and there are many paths to accomplishing recovery of a 
species. We recognize that it is unlikely that threats to this 
subspecies will be removed from all areas identified in this rule and 
that recovery efforts will occur outside the boundaries of this final 
designation; however, we believe that that conservation of this 
subspecies would be achieved if threats to this subspecies, as 
described in the ``Special Management Considerations or Protection'' 
section of this rule, were reduced or removed due to management and 
protection of those areas. Therefore, consistent with the statutory 
obligations of the Act and our implementing regulations we are not 
designating any unoccupied areas or areas outside the geographical area 
occupied by this subspecies at the time it was listed.
    Critical habitat designations do not signal that habitat outside 
the designation is unimportant or may not contribute to a species' 
recovery. Areas outside the final critical habitat designation will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act, and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. Critical habitat designations based on the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if information available at 
the time of those planning efforts calls for a different outcome. We 
recognize that the threats faced by this subspecies may change in the 
future; however, we base our critical habitat designations on the 
information available at the time of the designation and do not 
speculate as to what areas may be found essential if better information 
becomes available or what areas may become essential over time. The 
commenter did not include any specific data supporting their statement 
that unoccupied areas are essential for the recovery of the San 
Bernardino kangaroo rat and we are not aware of any studies or data 
that we did not consider. Should additional data become available, we 
may revise this critical habitat designation, subject to available 
funding and other conservation priorities.
    Contrary to the commenter's assertion, we note that all areas 
designated as critical habitat in 2002 were within the geographical 
area occupied by the species at the time of listing. For a detailed 
discussion regarding areas referenced by the commenter that were 
designated in 2002 but not included in this final revised designation, 
please see the ``Summary of Changes From the 2002 Critical Habitat 
Designation'' section of this final rule.
    Comment 14: One commenter stated that before the Service reduces 
critical habitat of a species that is already in peril, the Service 
should scientifically analyze if this reduction further jeopardizes the 
species' recovery and that a recovery plan, including a population 
viability analysis, should be completed for the San Bernardino kangaroo 
rat.
    Our Response: We agree that a recovery plan and a population 
viability analysis could provide useful information when considering a 
critical habitat designation; however, at this time, neither a recovery 
plan nor a population viability analysis was completed for the San 
Bernardino kangaroo rat. Given the timeframe in which we had to prepare 
this critical habitat rule, we did not have time to prepare a recovery 
plan or a population viability analysis for this subspecies; and the 
Act does not require the preparation of such analyses before critical 
habitat is designated. When delineating critical habitat for the San 
Bernardino kangaroo rat, we used the best available scientific 
information to determine those areas that meet the definition of 
critical habitat.

[[Page 61944]]

Comments Related to the Primary Constituent Elements
    Comment 15: One commenter stated that hydrological processes are an 
essential part of the alluvial fan sage scrub plant community and San 
Bernardino kangaroo rat habitat and, therefore, should be included as a 
PCE. The commenter further stated areas that provide necessary 
hydrology to down-stream alluvial fans and the processes that the San 
Bernardino kangaroo rat relies upon for habitat renewal and maintenance 
should have been included in the proposed designation.
    Our Response: We consider PCEs to be tangible, recognizable, or 
measurable features in the landscape, where possible, and not the 
processes that result in the feature. Biologists and non-biologists 
should be able to clearly determine the presence of PCEs in the field. 
A process such as hydrological regime should not be a PCE, but the 
resulting habitat condition (i.e., the end result of the process) is an 
appropriate PCE. In the case of the San Bernardino kangaroo rat, 
although hydrological processes maintain the alluvial sage scrub with 
proper soil and vegetative characteristics for this subspecies, habitat 
features described by the PCEs are the actual habitat parameters relied 
upon by the San Bernardino kangaroo rat, not the natural process that 
contributes to the long-term maintenance of the habitat (see the 
``Primary Constituent Elements'' section for a detailed discussion).
    Comment 16: One commenter stated that the proposed rule fails to 
describe the PCEs based on the best available science. This commenter 
stated that according to Braden and McKernan (2000), San Bernardino 
kangaroo rats were documented in a variety of plant communities, 
including coastal sage scrub, chaparral, in highly disturbed areas 
previously not thought to be suitable habitat for this subspecies 
(i.e., dirt parking lots, dirt roads), and questioned why these plant 
communities and disturbed areas were not included in the proposed 
designation.
    Our Response: The PCEs for the San Bernardino kangaroo rat 
described in the proposed rule and this final rule are based on the 
best available science (see Comment 5 and response above). We are aware 
of the Braden and McKernan (2000) study, which showed San Bernardino 
kangaroo rats occupying areas that were previously thought to be 
unsuitable habitat, and we have used that information in revising the 
PCEs and delineating critical habitat for this subspecies in this final 
rule. Please refer to the ``Primary Constituent Elements'' section of 
this final rule for more information on this topic.
    Comment 17: One commenter disagreed with PCEs 2 and 3, stating that 
areas with up to 50 percent chamise chaparral cover are unsuitable for 
the San Bernardino kangaroo rat and that marginal upland areas occupied 
at low densities that are in proximity to occupied habitat do not serve 
to perpe