Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Cirsium loncholepis, 56978-57046 [E9-26221]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 74, Number 211 (Tuesday, November 3, 2009)]
[Rules and Regulations]
[Pages 56978-57046]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-26221]



[[Page 56977]]

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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; Revised Designation of 
Critical Habitat for Cirsium loncholepis (La Graciosa Thistle); Final 
Rule

Federal Register / Vol. 74, No. 211 / Tuesday, November 3, 2009 / 
Rules and Regulations

[[Page 56978]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0078]
99210-1117-0000-B4
[RIN 1018-AV03]


Endangered and Threatened Wildlife and Plants; Revised 
Designation of Critical Habitat for Cirsium loncholepis (La Graciosa 
Thistle)

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 Cirsium loncholepis (La 
Graciosa thistle). We are designating approximately 24,103 acres (ac) 
(9,754 hectares (ha)) of habitat in San Luis Obispo and Santa Barbara 
Counties, California, as critical habitat for C. loncholepis. This 
final revised designation constitutes a reduction of approximately 
16,986 ac (6,873 ha) from the 2004 designation of critical habitat for 
C. loncholepis.

DATES: This rule becomes effective on December 3, 2009.

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/ventura/. Comments and materials received, as 
well as supporting documentation used in the preparation of this final 
rule, are available for public inspection, by appointment, during 
normal business hours, at the U.S. Fish and Wildlife Service, Ventura 
Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 
(telephone 805/644-1766; facsimile 805/644-3958).

FOR FURTHER INFORMATION CONTACT: Diane K. Noda, Field Supervisor, 
Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, 
CA 93003 (telephone 805/644-1766; facsimile 805/644-3958). If you use a 
telecommunications device for the deaf (TDD), call the Federal 
Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the revised designation of critical habitat for Cirsium loncholepis in 
this final rule. For more information on the taxonomy, biology, and 
ecology of C. loncholepis, refer to the final listing rule published in 
the Federal Register (FR) on March 20, 2000 (65 FR 14888), the final 
designation of critical habitat for C. loncholepis published on March 
17, 2004 (69 FR 12553), the proposed revised designation of critical 
habitat published in the Federal Register on August 6, 2008 (73 FR 
45806), and the March 10, 2009, availability of the draft economic 
analysis (DEA) (74 FR 10211).
Species Description, Life History, Distribution, Ecology, and Habitat
    We did not receive any new substantial information pertaining to 
the description, life history, distribution, ecology, or habitat of 
Cirsium loncholepis following the 2008 proposed revised designation of 
critical habitat for this species. Therefore, please refer to the final 
listing rule published in the Federal Register on March 20, 2000 (65 FR 
14888), and the proposed revised designation of critical habitat 
published on August 6, 2008 (73 FR 45806), for a discussion of the 
species' description, life history, distribution, ecology, and habitat.

Previous Federal Actions

    On March 17, 2004, we designated critical habitat for Cirsium 
loncholepis on approximately 41,089 acres (ac) (16,628 hectares (ha)) 
of land in San Luis Obispo and Santa Barbara Counties, California (69 
FR 12553). In March 2005, the Homebuilders Association of Northern 
California, et al., filed suit against the Service (CV-013630LKK-JFM) 
challenging final critical habitat rules for several species, including 
C. loncholepis. In March 2006, a settlement was reached that requires 
the Service to re-evaluate five final critical habitat designations, 
including critical habitat designated for C. loncholepis. The 
settlement, as subsequently modified on May 18, 2007, stipulated that 
we would submit any proposed revisions to the C. loncholepis 
designation to the Federal Register for publication on or before July 
27, 2008, and a final determination by July 27, 2009. By stipulation 
and order entered May 8, 2009, the deadline for submission of revisions 
to the final critical habitat designation was extended to on or before 
October 27, 2009. We published the proposed revisions to the critical 
habitat designation for C. loncholepis in the Federal Register on 
August 6, 2008 (73 FR 45806), and accepted public comments on the 
proposed revisions until October 6, 2008.
    On March 10, 2009, we published in the Federal Register a notice of 
availability (NOA) of the DEA (dated January 16, 2009), and opened the 
second public comment period on the proposed designation of revised 
critical habitat (74 FR 10211). This final rule completes our 
obligations under the March 23, 2006, settlement agreement regarding 
Cirsium loncholepis. For a discussion of additional information on 
previous Federal actions concerning C. loncholepis, refer to the final 
listing rule published on March 20, 2000 (65 FR 14888), and the final 
designation of critical habitat published on March 17, 2004 (69 FR 
12553).

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
revised designation of critical habitat for Cirsium loncholepis during 
two comment periods. The first comment period opened August 6, 2008 (73 
FR 45806), associated with the publication of the proposed rule, and 
closed October 6, 2008. The second comment period opened March 10, 2009 
(74 FR 10211), associated with the availability of the DEA, and closed 
April 9, 2009. During these two 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 species and 
the associated DEA.
    During the first public comment period, we received 16 comments 
directly addressing the proposed revision of critical habitat. We 
received one request for a public hearing, which was subsequently 
retracted. During the second public comment period, we received 16 
comments directly addressing the proposed revision of critical habitat 
for this species or the DEA.

Peer Review

    In accordance with our policy on peer review for activities under 
the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531 et 
seq.), published on July 1, 1994 (59 FR 34270), we solicited expert 
opinions from eight knowledgeable individuals with scientific expertise 
that included familiarity with the species, the geographic region in 
which it occurs, and conservation biology principles pertinent to the 
species. We received responses from five 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.

[[Page 56979]]

    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 Cirsium loncholepis. 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 noted that several areas beyond those 
proposed for designation as critical habitat contain habitat and 
features important for recovery of Cirsium loncholepis. Specifically, 
Guadalupe Lake was (and sometimes still is) the largest seasonal lake 
on the floor of the Santa Maria Valley, that it still persists today, 
and that it is likely that C. loncholepis was associated with this 
feature and its surrounding wetlands, as well as swales on the Orcutt 
Terrace. The commenter added that restoration of Guadalupe Lake 
(hydrology and vegetation) should be a primary focus of conservation 
efforts for C. loncholepis in this portion of the Santa Maria Valley 
and Orcutt Creek and that Unit 2 should be expanded to include 
Guadalupe Lake. Three additional areas that the peer reviewer 
recommended for inclusion in the critical habitat designation are: (1) 
The Mussel Rock dune sheet that contains dune swale wetlands; (2) the 
coastal mesa of Burton Mesa (south of San Antonio Creek), which has 
suitable Cirsium habitat and would provide connectivity between San 
Antonio Terrace and the Santa Ynez River; and (3) the interior portions 
of the Orcutt Terrace Dune Sheet that contain vernal pools and vernal 
pool complexes and support other listed ``wetland'' species 
(specifically the federally endangered California tiger salamander 
(Ambystoma californiense)). The interior portions of the Orcutt Terrace 
Dune Sheet contain areas such as Guadalupe Lake, Green Canyon, 
``Bradley Lake,'' and ``West Bradley Lake'' and would provide an 
excellent patchwork of open space areas for dispersal of C. loncholepis 
seed and connectivity via wind and hydrological processes.
     Our Response: We determined that these four areas (Guadalupe Lake, 
the remaining portions of the Mussel Rock Dune Sheet, Burton Mesa 
(south of San Antonio Creek), and interior portions of the Orcutt 
Terrace Dune Sheet) are important for recovery but not essential for 
the conservation of Cirsium loncholepis. We acknowledge that these 
areas do contain suitable habitat and the primary constituent elements 
(PCEs) for the species, but not in the quantity, quality, and spatial 
arrangement to make them essential for the conservation of the species. 
As opportunities arise, we will work with local landowners to advance 
the recovery of C. loncholepis in these areas by increasing 
connectivity via suitable habitat patches for C. loncholepis and seed 
dispersal. We are designating as critical habitat areas along Orcutt 
Creek that contain the highest quality areas of suitable habitat that 
will serve as ``stepping stone'' habitats for C. loncholepis between 
the Guadalupe Dunes and Santa Maria River areas, and between the 
formerly occupied San Antonio Creek and Santa Ynez River areas.
     Comment 2: All of the peer reviewers commented that the proposed 
designation of critical habitat uses the best available scientific 
information to develop the best possible habitat design to prevent 
extinction of the species and indicated that it was an exhaustive 
presentation of the facts supporting revisions to critical habitat for 
Cirsium loncholepis. They concurred that the current range of C. 
loncholepis is not sufficient to ensure (or even make likely) the 
continued existence of the species and that the inclusion of unoccupied 
habitat in the proposed critical habitat designation was justified 
scientifically. They concurred that all proposed units are important 
for recovery: Units 1 and 2 are occupied; Unit 3 was occupied, has 
important recovery potential, and serves as an extremely important area 
to connect multiple populations to reduce extinction risk for the 
species; and Units 4, 5, and 6 complete these linkages and have high 
recovery potential for the species.
     Our Response: The peer reviewers confirmed the importance of the 
areas that we identified as containing features essential to the 
conservation of the species and consequently delineated as critical 
habitat. Additionally, we added details and supplemental information 
about Cirsium loncholepis, and special management needs provided by the 
peer reviewers, in the Special Management Considerations or Protection, 
Primary Constituent Elements, and Final Critical Habitat Designation 
sections of this rule.
     Comment 3: Several peer reviewers had comments and provided 
additional information regarding (1) the importance of long-distance 
dispersal for this species in relation to habitat fragmentation, (2) 
the layout of critical habitat boundaries, (3) the PCEs, and (4) the 
importance of conserving the long-distance dispersal vectors within and 
between the critical habitat units (and suitable habitat patches) for 
the conservation of the species. There was a consensus among the peer 
reviewers that habitat fragmentation increases the threats to a 
species, and that it increases the risk of extirpation and extinction 
events. They discussed that the best way to conserve species affected 
by habitat fragmentation is to increase the total size of available 
habitat or connect remaining available habitat with habitat linkages. 
They further discussed that reconnections (of available and suitable 
habitat) can ameliorate the threats associated with small population 
sizes by promoting dispersal and geneflow.
     Our Response: We appreciate the peer reviewers' comments and 
information regarding long-distance dispersal and Cirsium loncholepis, 
and we have considered the peer reviewers' comments and recommendations 
regarding habitat fragmentation, connectivity, and long-distance 
dispersal in the development of this final revised critical habitat 
designation. We have incorporated them into the rule under the section 
entitled Primary Constituent Elements.
     Comment 4: One peer reviewer mentioned that the County of Santa 
Barbara requires a minimum 100-foot riparian buffer along creeks in 
rural areas, which includes agriculture, and that pulling back 
agriculture to create this minimum buffer could make conditions 
favorable for Cirsium loncholepis along riparian areas in the critical 
habitat units designated in Santa Barbara County.
     Our Response: We thank the reviewer for this information. We 
checked with the County of Santa Barbara (Mashore 2009a, unpaginated, 
2009b, unpaginated; Mooney 2009, unpaginated) and were informed that 
the County's Coastal Land Use Plan (Policy 9-37; also cross-referenced 
in Sec. 35-97.19 of the County's Coastal Ordinance) pertains to review 
of documents under the California Environmental Quality Act and states:
    The minimum buffer strip for streams in rural areas shall be 
presumptively 100 feet, and for streams in urban areas, 50 feet. These 
minimum buffers may be adjusted upward or downward on a case-by-case 
basis. The buffer shall be established based on an investigation of the 
following factors and after consultation with the California Department 
of Fish and Game and California Regional Water Quality Control Board in 
order to protect the biological productivity and water quality of 
streams: a.) soil type and stability of stream corridors, b.) how 
surface water filters into the ground, c.) slope of land on either side 
of the stream, and d.) location of the 100-year

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flood plain boundary. Riparian vegetation shall be protected and shall 
be included in the buffer. Where riparian vegetation has previously 
been removed, except for channelization, the buffer shall allow for the 
re-establishment of riparian vegetation to its prior extent to the 
greatest degree possible.
    We concur that pulling back the footprint of areas utilized for 
agricultural production to create this minimum buffer could make 
conditions favorable for Cirsium loncholepis along riparian areas in 
Santa Barbara County. We will continue to work closely with the County 
of Santa Barbara and landowners in these areas to provide for the 
conservation of C. loncholepis.
     Comment 5: One peer reviewer mentioned that there may be areas of 
active row crop agriculture within the boundaries of proposed critical 
habitat in Unit 3 and that we should check to avoid their inclusion in 
critical habitat.
     Our Response: We acknowledge that there may be areas with active 
row crops in Unit 3 (and other critical habitat units). When 
determining the revisions to critical habitat boundaries within this 
final rule, we made every effort to avoid including developed areas, 
such as buildings, paved areas, and other structures, as well as tilled 
fields and row crops that lack the PCEs for Cirsium loncholepis in the 
appropriate quantity and spatial arrangement essential to the 
conservation of the species. We identified critical habitat for this 
species based on several criteria. Application of these criteria 
(please see the Criteria Used To Identify Critical Habitat section of 
this final rule) resulted in the determination of the physical and 
biological features that are essential to the conservation of this 
species, as identified by the PCEs in the appropriate quantity and 
spatial arrangement essential to the conservation of the species. Thus, 
not all areas supporting the identified PCEs will meet the definition 
of critical habitat. Any such lands inadvertently left inside critical 
habitat boundaries shown on the maps of this final critical habitat are 
excluded by text in this rule and are not designated as critical 
habitat (please see Criteria Used To Identify Critical Habitat and 
Final Critical Habitat Designation sections and the unit description 
and map for Unit 3 in this final rule).
     Comment 6: One peer reviewer commented regarding the occupancy 
status of the Cañada de las Flores Unit. The commenter noted 
that we considered it to be unoccupied in the proposed revised 
designation, that the species was last observed in this unit in 1989, 
that the surveys in 1990 were conducted during a drought year, that the 
surveys in 2007 were conducted at a bad time of year, and that no 
sufficient surveys have been conducted here for 17 years. The commenter 
reasoned that because of the above information and the lack of surveys 
over a 17-year span, it seemed contradictory to consider this unit 
unoccupied.
     Our Response: Although the last herbarium specimen of this 
population was collected in 1973 (Consortium of California Herbaria 
(CCH) 2008, unpaginated), and it was last recorded (by photograph) in 
1987 (Thornton 2008, unpaginated), Hendrickson (1990, pp. 1-25) notes 
that in 1990, Jeanette Sainz reported that at CaCañadantilde;ada 
de las Flores Cirsium loncholepis plants ``...fluctuate every year; 
however, she has never known them to be absent completely as we found 
this year.'' Based on this information, we concluded that at the time 
of listing in 2000, Unit 3, Ca[ntilde]ada de las Flores was occupied by 
C. loncholepis. We reached the same conclusion when we designated 
critical habitat in 2004. We revisited this population with Jeanette 
Sainz in November 2007. No C. loncholepis plants were observed, some 
habitat conditions at the site have declined due to grazing intensity, 
but the basic suitable habitat conditions are still present (e.g., 
freshwater seeps and native vegetation) (Elvin 2007a, unpaginated). 
Based on one peer reviewer comment and a public comment regarding the 
occupancy status of Ca[ntilde]ada de las Flores, we requested 
permission to visit the site in 2008 during the blooming season for 
this species to try to obtain more data regarding the occupancy status 
of this site; however, we were not able to obtain permission from the 
current owner. The owner had biologists conduct surveys in March of 
2009, with no C. loncholepis being observed (Kisner 2009, unpaginated). 
Therefore, the best scientific and commercial data available indicate 
that this site was last documented as occupied in 1987 (Thornton 2008, 
unpaginated) and last reported in 1989 (Hendrickson 1990, pp. 1-25). 
Therefore, based on the continued lack of observation of C. loncholepis 
since 1989 (Hendrickson 1990, pp. 1-25; 65 FR 14888, March 20, 2000; 
CNDDB 2007, unpaginated; Elvin 2007b, unpaginated; CCH 2008, 
unpaginated; Thornton 2008, unpaginated), we consider Ca[ntilde]ada de 
las Flores to be unoccupied for the purposes of this rule.
     Comment 7: One peer reviewer strongly suggested that additional 
management actions be undertaken for the species, specifically that the 
species be reintroduced into the unoccupied Units 3, 4, 5, and 6.
     Our Response: We agree that the recommended additional management 
actions, specifically reintroducing the species into unoccupied areas 
with suitable habitat throughout the range of the species, would 
benefit the species and contribute to its conservation. While we do not 
develop management strategies as part of the process of designating 
critical habitat, we do consider site-specific management strategies 
important to the conservation of the species and work with landowners, 
researchers, and others to develop and implement them as part of the 
recovery process.
     Comment 8: One peer reviewer commented that historically it is 
likely that Cirsium loncholepis had a much broader distribution in (1) 
Los Alamos Valley, specifically along the broad floodplain of San 
Antonio Creek and in the numerous hillside seeps and sag ponds 
associated with the southeast-northwest trending fault line that 
created this valley, and (2) the rest of the San Antonio Creek 
floodplain (e.g., Barka Slough); therefore the reviewer suggested that 
we emphasize conservation efforts in these areas.
     Our Response: We concur that it is possible that Cirsium 
loncholepis was more widely distributed in the San Antonio Creek 
watershed. This is why we proposed the areas in Units 3 and 4 and why 
we are designating lands in these units as critical habitat for C. 
loncholepis. Please see the unit descriptions for Units 3 and 4 for a 
more indepth discussion of these areas.

Public Comments

     Comment 9: One commenter stated that we should not designate 
critical habitat for a weed.
     Our Response: Cirsium loncholepis is a rare and endangered native 
plant. It does not qualify under any criteria as a weed. There are some 
species within this thistle genus that are ``weedy'' in the sense of 
growing out of their native habitat; for instance, several species of 
thistle originally native to Europe have spread across North America. 
Other thistle species are native but ``weedy'' in the sense that they 
have the ability to spread aggressively. Cirsium loncholepis is not 
``weedy'' in either sense, as it is native to a small area of central 
coastal California, and is not aggressive in colonizing new sites. It 
is federally listed as endangered, and we are

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required under the Act to designate critical habitat for it.
     Comment 10: One commenter stated that the designation is based on 
incomplete data and should not go forward.
     Our Response: The Service's Policy on Information Standards Under 
the Endangered Species Act, published on July 1, 1994 (59 FR 34271), 
establishes procedures and provides guidance to ensure that decisions 
made by the Service represent the best scientific and commercial data 
available. We are required, to the extent consistent with the Act and 
with the use of the best scientific and commercial data available, to 
use primary and original sources of information as the basis for 
recommendations to designate critical habitat. See the section of this 
rule titled Critical Habitat for additional information on these 
standards. The revised critical habitat designation presented in this 
rule is based upon the best scientific and commercial information 
available as required by the Act.
     Comment 11: One commenter stated that the rule does not justify 
designating active cropland in the Santa Maria Valley or urban lands in 
the Orcutt area, that it is illogical to designate critical habitat on 
intensely cultivated row crop farms in the western Santa Maria Valley, 
and that agricultural fields in the Santa Maria Valley do not meet the 
definition of critical habitat because they lack the PCEs.
     Our Response: We attempted to avoid designating agricultural land 
as much as possible because the PCEs are not present in the appropriate 
quantity and spatial arrangement essential to the conservation of the 
species in much of the actively farmed agricultural land. However, 
within the areas mapped that include agricultural fields, there are 
pockets of habitat that contain or support the PCEs and are essential 
to the conservation of the species (e.g., along the untilled margins of 
fields; along untilled, low-lying swales within fields; and in fields 
that are temporarily fallow). For example, there are pockets of 
suitable habitat along Orcutt Creek that contain ``stepping stone'' 
habitats in and adjacent to agricultural lands. These ``stepping 
stone'' habitats play an important role in the conservation of this 
species by providing corridors and intermediate sites with suitable 
habitats that act as an essential dispersal corridor (along which the 
species can disperse from coastal sites to other suitable sites farther 
inland) (Damschen 2008; Trakhtenbrot 2008). Therefore, these areas are 
essential to the conservation of the species. Some areas within 
agricultural lands are not essential because they do not contain the 
PCEs in the appropriate quantity and spatial arrangement essential to 
the conservation of the species. We made every effort to exclude as 
many areas as possible that do not meet the definition of critical 
habitat, but were not able to exclude all of these areas due to the 
mapping scale utilized. Areas that are within the boundaries of 
critical habitat, but do not contain the PCEs in the appropriate 
quantity and spatial arrangement essential to the conservation of the 
species, are excluded by text in this revision and are not designated 
as critical habitat (please see the Criteria Used To Identify Critical 
Habitat and Final Critical Habitat Designation sections and the unit 
description and map for Unit 2 in this final rule).
     Comment 12: One commenter stated that the Service makes the 
assumption that Orcutt Creek is not impacted by existing urban and 
agricultural uses and does not account for the fact that Orcutt Creek 
and other streams are fully impeded to downstream flows and are 
affected by other threats (e.g., County zoning may permit development 
within the floodplain with minimal setbacks from creeks, non-point 
source pollution runoff from agriculture (herbicides, fertilizers) and 
urban areas, flood control measures).
     Our Response: We do not assume that the entire stretch of Orcutt 
Creek, the Santa Maria River, and their associated watersheds are not 
impacted by existing uses. We are aware that the watersheds have been 
adversely affected by urban and agricultural practices and we thank the 
commenter for pointing out additional threats of which we were not 
aware to the species. We have included this new information in the 
Special Management Considerations or Protection and Final Critical 
Habitat Designation sections of this rule. We believe that the Orcutt 
Creek area is essential to the conservation of the species because it 
contains pockets of suitable habitat that act as ``stepping stone'' 
habitats and are an essential dispersal corridor. For additional 
information on this topic, please see Comments 5 and 11 and our 
responses to them.
     Comment 13: Three commenters did not feel that we presented 
sufficient justification to propose unoccupied habitat, specifically 
areas in Unit 1 and Unit 3, and that it was the intent of Congress to 
limit the designation of critical habitat to occupied areas, except in 
unusual circumstances.
     Our Response: The Act specifically provides that the Service may 
designate as critical habitat areas outside of the geographical area 
occupied by a species at the time it was listed if we determine that 
those areas are essential for the conservation of the species (section 
3(5)(A)(ii) of the Act). By regulation, 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)).
    The commenters included some supplemental information regarding 
their statements that unoccupied areas are not essential for the 
recovery of Cirsium loncholepis. Multiple peer reviewers commented that 
unoccupied areas were essential to the conservation of the species and 
that it was scientifically sound and justified to designate these areas 
as critical habitat. After analyzing this supplemental information, we 
determined that the current range of the species is not sufficient to 
ensure its conservation and that unoccupied areas (both within and 
outside the current range of the species) are essential for its 
conservation. For additional information on this issue, please see 
Comment 2 and our response to it.
     Comment 14: One commenter stated that Unit 3 has different 
environmental conditions than other units in the following ways: it 
does not contain PCEs; it is not occupied (because 1987 was the last 
time that plants were seen); we did not describe why or how Unit 3 is 
necessary to ensure connectivity in a manner that is ``essential'' for 
the conservation of the species; in Unit 3 ``...only a very few Thistle 
plants have ever been found and only a very small percentage of Unit 3 
contains the [PCEs] for the Thistle...''; and we did not cite any 
specific data, studies, or other evidence that demonstrate that Unit 3 
is essential for establishing connectivity with areas occupied by 
Cirsium loncholepis and for preserving genetic variability within the 
species. Therefore it is impossible for the public to generate 
meaningful comments. One commenter objected to the inclusion of Unit 3.
     Our Response: We believe that the final revised designation for 
Cirsium loncholepis accurately contains all specific areas meeting the 
definition of critical habitat for this species. As discussed in the 
Criteria Used to Identify Critical Habitat section of the proposed 
revised designation and this final revised designation, we delineated 
proposed revised critical habitat for C. loncholepis using the 
following criteria:

[[Page 56982]]

     (1) Areas occupied by individuals at the time of listing and areas 
currently occupied by this species;
     (2) Habitat providing connectivity between the areas containing 
the extant populations;
     (3) Areas outside the geographical area occupied by the species at 
the time of listing, but within the historical range of the species, 
that contain large, continuous blocks of suitable habitat, such as the 
numerous mesic areas and seeps in and surrounding the lower reaches of 
the Santa Ynez River;
     (4) Important corridors of suitable habitat that connect the 
large, continuous areas based on seed or pollen dispersal abilities in 
those corridors, such as the areas along Orcutt Creek between the 
Guadalupe Dunes and Ca[ntilde]ada de las Flores; and
     (5) The presence and characteristics of other features that are 
important to maintain the metapopulation dynamics for C. loncholepis in 
the areas listed in (1) through (4) above (e.g., winds and their 
relationship to the formation of geographic features, movement patterns 
for various dispersal agents, watersheds, geology).
    Application of these criteria captures the physical and biological 
features that are essential to the conservation of this 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 this species' range and includes both occupied and 
unoccupied habitat. Some previously occupied areas (such as 
Ca[ntilde]ada de las Flores) may have once represented core populations 
for this species, but due to its precipitous decline (as discussed in 
the Primary Constituent Elements section of this rule), we have 
determined that these areas are still essential for the conservation of 
this species. We also made a determination that modifications to the 
critical habitat boundaries in Unit 3 were not warranted.
    Data used in the preparation of this final revised designation also 
indicate that the basic habitat conditions are still present in Unit 3 
(e.g., freshwater seeps and native vegetation). Unit 3 occurs at a 
pivotal location for the species as a whole; it is down-wind from 
Cirsium loncholepis populations in the Santa Maria Valley and areas on 
San Antonio Terrace (Hunt 2008, unpaginated) and upstream from 
populations in the San Antonio Valley (e.g., the mouth of San Antonio 
Creek (one of the potential type locality sites for C. loncholepis) and 
San Antonio Terrace Dunes). The Ca[ntilde]ada de las Flores location is 
essential to maintain connectivity between populations in the Santa 
Maria Valley and populations in the San Antonio Creek and Santa Ynez 
Valleys and contains habitat for a core population area. The areas in 
question meet our criteria used to identify critical habitat (for 
additional information, please see the Criteria Used to Identify 
Critical Habitat section below).
     Comment 15: One commenter stated that 50 percent of the proposed 
critical habitat in Unit 3 is already covered by currently designated 
critical habitat for California tiger salamander; therefore, because 
the area is already protected and requires consultation under the Act, 
this rule is redundant.
     Our Response: The Act directs us to analyze and determine which 
areas are essential to the conservation of each species. We analyzed 
the areas that we determined were essential for Cirsium loncholepis in 
this rule. While there may be overlap in critical habitat boundaries 
for different species, in this case, the PCEs (and essential habitat 
components) are different for C. loncholepis than they are for 
California tiger salamander. Therefore the critical habitat 
determination for California tiger salamander does not describe the 
same habitat and it does not offer the same protections as the 
designation of critical habitat for C. loncholepis.
     Comment 16: One commenter stated that the adoption of the proposed 
critical habitat rule is subject to compliance with National 
Environmental Policy Act (NEPA). The Service must comply with NEPA in 
designating critical habitat as per the Tenth Circuit Court decision 
(Catron County Bd. Of Comm'r, N.M.v. USFWS, 75 F.3d 1429).
     Our Response: It is our position that, outside the jurisdiction of 
the Tenth Circuit Court of Appeals, we do not need to prepare 
environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in 
connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the 
Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld in the Ninth Circuit Court of Appeals (Douglas County v. 
Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1042 
(1996)).
     Comment 17: Two commenters stated there are areas within the 
proposed critical habitat that should not be included in the final 
designation because they do not contain the PCEs, are not occupied by 
the species, or otherwise do not meet the definition of critical 
habitat.
     Our Response: Where site-specific information was submitted to us 
during the comment periods for this revised designation with a 
rationale as to why an area should not be designated as critical 
habitat, we evaluated that information in accordance with the 
definition of critical habitat under to section 3(5)(A) of the Act. 
This rule notes that there are areas within the boundaries of 
designated critical habitat that do not contain those biological 
features essential for the conservation of the species (e.g., roads, 
buildings, and other areas that do not contain PCEs) and these specific 
areas are not included in designated critical habitat by text provided 
in this rule even though they appear to be within the boundaries of 
designated critical habitat. Please see the individual unit 
descriptions for discussions of the PCEs and where the unit is occupied 
by the species.
    For additional information regarding Unit 3, please see Comment 14 
and our response to it. For additional information regarding Unit 1 and 
areas in the OHV area of ODSVRA, please see Comment 18 and our response 
to it and the unit description for Unit 1.
     Comment 18: One commenter stated that the Service previously 
excluded the heavily-used off-highway vehicle (OHV) riding areas within 
the Oceano Dunes State Vehicular Recreation Area (ODSVRA) in the 2004 
final critical habitat designation because the area is not essential 
for the conservation of Cirsium loncholepis. Two commenters objected to 
the inclusion in proposed critical habitat Unit 1 of large areas on 
State Park lands within the ODSVRA in proposed critical habitat Unit 1 
that are used for OHV recreation on a regular basis.
     Our Response: We acknowledge that these areas were not included in 
the 2004 final rule, but the best available science at that time 
indicated that Cirsium loncholepis was still extant at a number of 
locations throughout its range. Current information indicates that the 
species has experienced severe declines in the number of populations, 
occurrences, and individuals such that areas beyond the species' 
currently occupied range are essential for its conservation. In the 
process of analyzing what constitutes critical habitat for the species 
during this revision, we determined that certain areas within the OHV 
area met the definition of critical habitat.
    In this final revised designation of critical habitat, we have 
included polygons of critical habitat that contain vegetation that 
occur and are fenced off

[[Page 56983]]

within the OHV riding area of ODSVRA because they are essential to the 
conservation of the species. The polygons contain habitat patches, 
including open sand dune swales and vegetation islands. In identifying 
the areas designated as final revised critical habitat, we delineated 
the boundaries based on the best available science, with the 
understanding that this is a dynamic ecosystem, and it has been 
documented that these vegetation islands move over time (California 
Geological Society (CGS) 2007, 113 pp.). The habitat patches move up to 
120 meters (m) (394 feet (ft)) over a 20-year time frame (CGS 2007, 113 
pp.); therefore, we developed a formula to determine the predicted 
migration of these patches over the next 20 years. For a description of 
this formula, please see the Criteria Used to Identify Critical Habitat 
section of this rule.
    Following our evaluation of the information provided, we made a 
determination that modifications to the critical habitat boundaries 
were warranted in parts of Unit 1. The areas within the habitat patches 
(including vegetation islands and open sand dune swales) containing 
PCEs in the appropriate quantity and spatial arrangement necessary to 
provide the features essential to the conservation of Cirsium 
loncholepis are essential. Therefore, under this rule, we are 
designating them as critical habitat. However, the areas within the 
boundaries of these polygons that are outside of the habitat patches 
(but within the OHV riding area of ODSVRA) and are used on a regular 
basis for OHV recreation do not currently contain PCEs in the 
appropriate quantity and spatial arrangement necessary to provide the 
features essential to the conservation of C. loncholepis. We are 
designating these areas as critical habitat because the vegetation 
islands will migrate beyond their current boundaries in the foreseeable 
future, and thus the areas are essential for the conservation of C. 
loncholepis.
    These polygons of critical habitat contain suitable habitat and are 
adjacent to currently occupied and historically occupied sites. The 
polygons are northwest of a large continuous block of occupied habitat. 
The Callender Dunes are dominated by moderate to strong winds from the 
northwest (categorized as greater than 7.47 miles per hour (mph) (12.02 
kilometers per hour (kph)) most of the time and throughout the year 
(U.S. Department of Agriculture Natural Resources Conservation Service 
(USDA NRCS) 2008, unpaginated; National Oceanic and Atmospheric 
Administration Western Regional Climate Center (NOAA) 2007, 
unpaginated). However, moderate to strong winds from the southeast also 
occur in this area during parts of the year (November through 
February), which overlaps with at least 2 months of the approximately 
5-month period that seeds are dispersed from the remains of the 
flowering stalk (August through December). These winds are an essential 
dispersal vector that helps move Cirsium loncholepis seeds between 
areas of suitable habitat; as a result, the vegetated islands become 
essential in maintaining connectivity within and between occurrences 
and populations. Further, several peer reviewers indicated that for 
fugitive species (i.e., species that move from place to place through 
time) like C. loncholepis that also rely on long-distance dispersal, 
adjacent occupied and unoccupied suitable habitat is essential for 
survival. These vegetation islands meet this need for the species, and 
provide a shifting mosaic of habitats that depend upon geomorphic 
processes operating across large landscape areas for their maintenance.
    In the proposed revised designation, we proposed 714 ac (290 ha) 
within the OHV area of ODSVRA. In this final rule, we have reduced the 
number of acres within the OHV area of ODSVRA to 75 ac (30 ha) that are 
included in critical habitat Unit 1 because we determined that areas 
with a long-standing history of heavy OHV use did not contain the PCEs 
in the appropriate quantity and spatial arrangement (see our response 
to Comment 20). We made every effort to include the essential vegetated 
island habitats and the areas that they are expected to migrate to in 
the foreseeable future based on a recent analysis of historical 
movements of these habitats in the ODSVRA and the geomorphology of the 
Callender Dunes (CGS 2007, 113 pp.; Cooper 1967, pp. 75-90; Hunt 1993, 
pp. 5-72; USDA NRCS 2008, unpaginated).
     Comment 19: Two commenters discussed the ODSVRA's preparation of 
an habitat conservation plan (HCP) and concluded that the completion of 
the HCP will make the critical habitat rule superfluous and 
unnecessary, as the Service excludes areas if they do not need special 
management. Therefore, because the species will be addressed in the 
soon-to-be-released draft HCP for ODSRVA, no special management will be 
needed in any of the proposed critical habitat areas within ODSVRA.
     Our Response: In considering the benefits of including lands in a 
designation that are covered by a proposed or current HCP or other 
management plan, we evaluate a number of factors to help us determine 
if the plan provides equivalent or greater conservation benefit than 
would likely result from consultation on a designation. These criteria 
are discussed in the Application of Section 4(b)(2) of the Act section 
below.
    Because the HCP under development for the ODSVRA is still in draft 
form, there is uncertainty concerning what actions may be proposed or 
committed to for conservation of the species, and there is uncertainty 
concerning whether any actions proposed will be effective. Accordingly, 
the draft HCP does not currently meet the criteria necessary for us to 
exclude these areas on the basis of the HCP under section 4(b)(2) of 
the Act.
     Comment 20: The California Department of Parks and Recreation 
(CDPR) requested that we exclude from critical habitat 820 acres of 
lands they manage (in and adjacent to the OHV area) at the ODSVRA. They 
requested that even if the lands in ODSVRA can be considered critical 
habitat, the Service exclude them under section 4(b)(2) of the Act for 
the following reasons:
     (1) There is a long-standing history of OHV use of Oceano Dunes;
     (2) The State law that established ODSVRA mandated the area be 
used for OHV recreation;
     (3) Critical habitat is not needed because CDPR has a rare plant 
protection program in place to manage populations within ODSVRA and if 
Cirsium loncholepis is found there in the future, those plants would be 
protected as part of the rare plant protection program; and
     (4) Economic impacts need to be considered, and they outweigh the 
benefits of inclusion of this area.
     Our Response: We analyzed the entire area within ODSVRA that was 
proposed as critical habitat in the proposed revised critical habitat 
designation. We determined that approximately 639 ac (259 ha) of the 
714 ac proposed as critical habitat do not contain the PCEs in the 
appropriate quantity and spatial arrangement that are essential for the 
conservation of the species. We are not designating as critical habitat 
these approximately 639 ac. Regarding the four points outlined in the 
CDPR comment letter (Zilke 2008):
     (1) The Act directs us to analyze areas essential to the 
conservation of the species, and section 4(b)(2) of the Act states that 
the Secretary may exclude any area if he determines that the benefits 
of exclusion outweigh the benefits of specifying an area as critical 
habitat, unless he determines, based on the best scientific and 
commercial data available, that failure to designate such

[[Page 56984]]

area as critical habitat will result in the extinction of the species 
concerned. We analyzed the benefits of exclusion and the benefits of 
inclusion, and determined that some of the areas within ODSVRA were 
essential to the conservation of the species (see the unit description 
for Unit 1 and the map for Unit 1). Some of the areas within ODSVRA do 
not contain PCEs in the appropriate quantity and spatial arrangement 
that are essential for the conservation of the species. In designating 
those areas we determined to be essential to the conservation of the 
species, we made every effort to avoid those areas that do not contain 
the physical and biological features in the appropriate quantity and 
spatial arrangement. We determined that areas with a long-standing 
history of heavy OHV use did not contain the PCEs in the appropriate 
quantity and spatial arrangement (see our response to Comment 18).
     (2) We further determined that these areas, as designated, do not 
contradict the State law that established ODSVRA mandating the area be 
used for OHV recreation (see our responses to Comments 17 and 18 and 
our description of these areas in the unit description).
     (3) In considering whether to exclude an area from designation as 
critical habitat on the basis of a management plan (or rare plant 
protection program), we evaluate a number of factors to help us 
determine if the plan provides equivalent or greater conservation 
benefit than would likely result from consultation on a designation.
    These factors include: (A) Whether the plan is complete and 
provides protection from destruction or adverse modification; (B) 
whether there is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and (C) whether the plan provides conservation strategies 
and measures consistent with currently accepted principles of 
conservation biology. The CDPR has not provided us with a management 
plan that meets all of those conditions necessary for us to exclude 
these areas from the designation.
     (4) We analyzed the benefits of exclusion and the benefits of 
inclusion of the remaining approximately 75 ac (30 ha) in the OHV area 
of ODSVRA. We determined that the remaining approximately 75 ac (30 ha) 
are essential to the conservation of the species, and the benefits of 
exclusion do not outweigh the benefits of inclusion. Accordingly, we 
are designating these approximately 75 ac (30 ha) as critical habitat.
    See our responses to Comments 17 and 18 and the following sections 
for a more indepth discussion of these issues: Criteria Used To 
Identify Critical Habitat, the unit description for Unit 1, and 
Relationship of Critical Habitat to Lands Managed by the California 
Department of Parks and Recreation (CDPR).
     Comment 21: One commenter, citing case decisions, stated a general 
comment that the Service's position that an area does not need special 
management where another conservation plan is in place is both 
illogical and legally invalid and the Cirsium loncholepis habitat 
within the boundaries of any conservation plan also meets the 
definition of critical habitat precisely because it requires the 
special management purportedly provided by the conservation plans.
     Our Response: The comment references a former Service 
interpretation as to the interrelationship of existing conservation 
plans with the definition of critical habitat in the Act. The 
definition states, in part, that ``critical habitat'' means (i) the 
specific areas within the geographical area occupied by a species, at 
the time it is listed in accordance with the Act, on which are found 
those physical or biological features (I) essential to the conservation 
of the species and (II) which may require special management 
considerations or protection (section 3(5)(A)(i) of the Act). Thus in 
determining critical habitat for an area occupied by the species at the 
time of listing, the Service looks at whether the physical or 
biological features of the area are both essential to the conservation 
of the species and may require special management considerations or 
protections. The commenter suggests that habitat within the boundaries 
of any conservation plan meets the definition of critical habitat. For 
that to be true, such an area must also have the physical and 
biological features essential to the conservation of the species to be 
considered critical habitat. The Service did not, in the proposed 
revised designation, suggest that areas with existing special 
management would not meet the definition of critical habitat. However, 
areas subject to a conservation plan and thus subject to special 
management, may be considered for exclusion from the critical habitat 
designation if the plan meets certain criteria (see the Application of 
Section 4(b)(2) of the Act section below for a discussion of these 
criteria).
     Comment 22: Two commenters were concerned that new PCEs were 
included that do not require a water source, that these PCEs and areas 
without water or a water source are not essential, and that the 
description of PCE 4 is ``insufficiently specific'' and includes every 
drainage within the region.
     Our Response: Each PCE and area proposed for designation as 
critical habitat can be essential for a different reason or a different 
part of the plant's life cycle. The dispersal of genetic material among 
and between populations is essential for the conservation and recovery 
of this species (see our response to Comment 3) and is covered by PCE 
4, which includes dispersal by both wind and water. Water is not 
essential to disperse the plant's seeds by wind, but dispersal by wind 
is essential for the conservation and recovery of the species. Also, 
the plant does grow and has been documented in areas that are ``dry,'' 
such as on the top of ridges in the Guadalupe Oil Fields to the south 
of the Guadalupe-Nipomo Dunes National Wildlife Refuge. We believe the 
word drainage is adequately specific, as it eliminates many upland and 
dry areas. Drainages within the boundaries of the revised critical 
habitat designation all contain suitable habitat and are important 
dispersal features, which are what we focused on in developing the 
revised critical habitat designation for this species. Drainages 
outside the boundaries of critical habitat, but within the region, may 
be important, but we are not designating them as critical habitat.
     Comment 23: One commenter stated that the only effective measure 
to ensure the recovery of the species (Cirsium loncholepis) in 
agricultural and urban areas is to preclude agricultural practices and 
production and urban development and that this constitutes a ``taking'' 
of private property; another commenter asked us to hold off 
interference in the private sector, stating that designating critical 
habitat [for C. loncholepis] will interfere with agriculture to feed 
all of the people.
     Our Response: Critical habitat has a direct regulatory impact only 
on Federal actions or actions requiring Federal authorization, 
permitting, or funding. Therefore, a critical habitat designation on 
private land has no regulatory impact on actions carried out by 
landowners unless they seek Federal funding or a Federal permit to 
carry out those actions. For example, if landowners must obtain a 
permit from the U.S. Army Corps of Engineers (Corps) under section 404 
of the Clean Water Act (33 U.S.C. 1251 et seq. ) to carry out an action 
on their land, the Corps must

[[Page 56985]]

consult with the Service under section 7 of the Act to evaluate the 
effects that the permitted activity may have on critical habitat. Even 
then, the designation may only have a substantial impact on the 
activity if it is likely to result in the destruction or adverse 
modification of the critical habitat. It is the responsibility of the 
Federal agency, not the private landowner, to initiate the consultation 
with the Service.
    The Act prohibits Federal agencies from carrying out actions that 
would destroy or adversely modify critical habitat. A Federal action 
(e.g., row crop farming, urban construction) that is not likely to 
cause the destruction or adverse modification of Cirsium loncholepis 
habitat may not be materially affected by a critical habitat 
designation. Federal action agencies must evaluate the potential 
effects of each action on its own merits. If a Federal action would 
result in the destruction or adverse modification of C. loncholepis 
habitat, the Service would suggest reasonable and prudent alternatives 
to avoid the destruction or adverse modification of critical habitat.
    The promulgation of a regulation does not take private property 
unless the regulation denies the property owners all economically 
beneficial or productive use of their land. Further, in accordance with 
Executive Order 12630 (Government Actions and Interference with 
Constitutionally Protected Private Property Rights), we analyzed the 
potential takings implications of designating critical habitat for 
Cirsium loncholepis in a takings implications assessment (TIA), which 
is available on request. The conclusion in the TIA was that the 
possibility for take of private property due to designation of critical 
habitat for Cirsium loncholepis is remote.
     Comment 24: One commenter stated that it is the Service's 
obligation under section 2(c) to ``seek to conserve endangered species 
and threatened species and shall utilize their authorities in 
furtherance of the purposes of this Act'' and section 7(a)(1) to 
conserve threatened and endangered species.
     Our Response: Section 4(a)(3) of the Act requires that critical 
habitat be designated for listed species. This rule meets our 
obligations under section 4(a)(3), which will help us accomplish our 
obligations under sections 2(c) and 7(a)(1). The designation of 
critical habitat for Cirsium loncholepis will not conflict with or 
prevent us from carrying out our obligations under sections 2(c) and 
7(a)(1).
     Comment 25: One commenter stated that we should designate as 
critical habitat all habitat and lands proposed for designation 
pursuant to the Act and that we should issue no exemptions or 
exclusions.
     Our Response: We proposed to designate 38,447 ac (15,559 ha) as 
critical habitat in the proposed revised designation of critical 
habitat for Cirsium loncholepis (73 FR 45806). Of that total, we 
determined in this final revised designation that 37,810 ac (15,300 ha) 
meet the definition of critical habitat and are essential to the 
conservation of the species. We determined that some areas 
(approximately 639 ac (259 ha) within Unit 1) with a long-standing 
history of heavy OHV use did not contain the PCEs in the appropriate 
quantity and spatial arrangement and therefore were not essential to 
the conservation of the species and did not fit the definition of 
critical habitat (see our response to Comments 18 and 20). We are 
excluding 13,705 ac (5,546 ha) of Department of Defense (DOD) lands 
within the boundaries of Vandenberg Air Force Base (VAFB) under section 
4(b)(2) of the Act based on potential impacts to national security. 
Because the Service is not an expert in military readiness, we defer to 
the expertise of the DOD in identifying specific credible military 
readiness or national security impacts. See the section entitled 
Relationship of Critical Habitat to Lands Managed by the Department of 
Defense (DOD) below for a more indepth discussion of this topic.
     Comment 26: Two commenters submitted duplicate requests for us to 
revise the boundaries of Unit 3 according to those recommended in a 
separate comment letter. The commenters stated that we should exclude 
upland, developed, and agriculture areas in Unit 3 because these areas 
provide poor habitat for potential Cirsium loncholepis plants and that 
this exclusion ``...should not cause significant impacts to the 
thistle's recovery.'' The commenters stated that the proposed revisions 
to the boundaries of Unit 3 were based only on PCEs 1 and 2 and 
acknowledged that ``the Ca[ntilde]ada de las Flores Unit (Unit 3) may 
potentially provide a key linkage between known [C. loncholepis] 
populations.''
     Our Response: We are directed by the Act to determine what areas 
are essential for the conservation of a species, not what areas are 
essential, but ``...should not cause significant impacts to the 
[species'] recovery''. We state in the text that developed areas and 
agricultural fields that do not contain PCEs are not critical habitat. 
Information from J. Sainz (Elvin 2007a) contradicts some information 
presented in this comment; specifically, while she did state that 
Cirsium loncholepis primarily occurred at three places at Ca[ntilde]ada 
de las Flores, she also stated that it historically occurred 
sporadically throughout the lowlands there, and not just at the three 
specific locations where it most commonly was found. Information 
received from peer reviewers indicate that a much larger area at 
Ca[ntilde]ada de las Flores contains suitable habitat that at present, 
due to drought and overgrazing, appears less suitable (Hunt 2008). Hunt 
states that the entire valley floor in Ca[ntilde]ada de las Flores 
floods in heavy rain years. We determined that the 740 ac (299 ha) at 
Ca[ntilde]ada de las Flores meet the definition of critical habitat for 
C. loncholepis (see the unit description for Unit 3 in the Final 
Critical Habitat section below).
     Comment 27: One comment letter stated that DOD lands at VAFB must 
NOT [emphasis included in comment] be exempt from the requirements of 
the Act to protect Cirsium loncholepis in the 17,705 ac of wetland and 
dune areas on the ``people's property'' on VAFB. Another commenter 
stated that they believe that it is not a national security issue for 
VAFB to be exempted from ``protecting the people's Cirsium loncholepis 
and its habitat.''
     Our Response: The DOD is not exempt from the Endangered Species 
Act, or from the designation of critical habitat. We determined that 
14,151 ac (5,727 ha) of DOD lands meet the definition of critical 
habitat within the boundaries of VAFB. While DOD lands may not be 
designated as critical habitat if they are subject to an integrated 
natural resources management plan (INRMP) that is recognized by the 
Secretary to provide a benefit to the species (per section 4(a)(3)(B) 
of the Act), such a plan does not exist for DOD lands at VAFB. We are 
excluding 13,705 ac (5,546 ha) of DOD lands within the boundaries of 
VAFB under section 4(b)(2) of the Act based on potential impacts to 
national security. Please see our response to Comment 25 and the 
section entitled Relationship of Critical Habitat to Lands Managed by 
the Department of Defense (DOD) below for a more indepth discussion of 
this topic.
Federal Agency Comments
     Comment 28: The DOD requested that we exclude its lands at VAFB 
from our final revised critical habitat designation based on an 
exemption under section 4(a)(3)(B) of the Act for military 
installations with an INRMP. Section 4 of the Act was amended through 
the National Defense Authorization Act for 2004 (Public Law 108-136). 
Section

[[Page 56986]]

4(a)(3)(B) of the Act states the Secretary shall not designate as 
critical habitat any lands controlled by DOD that are subject to an 
INRMP, if the Secretary determines that such a plan provides a benefit 
to the species for which critical habitat is proposed.
     Our Response: The Sikes Act Improvement Act of 1997 (Sikes Act) 
requires each military installation that includes land and water 
suitable for the conservation and management of natural resources to 
complete, by November 17, 2001, an INRMP. An INRMP integrates 
implementation of the military mission of the installation with 
stewardship of the natural resources found there. Each INRMP includes 
an assessment of the ecological needs on the installation, including 
the need to provide for the conservation of listed species; a statement 
of goals and priorities; a detailed description of management actions 
to be implemented to provide for these ecological needs; and a 
monitoring and adaptive management plan. We consult with the military 
on the development and implementation of INRMPs for installations with 
listed species. Because the INRMP being prepared by DOD for VAFB is in 
draft form and will not be completed by the time this final revised 
critical habitat designation publishes in the Federal Register, we 
cannot determine if the INRMP provides a benefit to Cirsium 
loncholepis. Therefore, we cannot exempt DOD lands at VAFB on the basis 
of section 4(a)(3)(B) of the Act.
     Comment 29: The DOD further requested that we exclude its lands at 
VAFB based on section 4(b)(2) of the Act. They specifically discussed 
that national security would be impacted because a critical habitat 
designation would limit the amount of natural infrastructure (e.g., 
land, water, and air resources) that are needed to support military 
operations and training. DOD also stated that they believe the benefits 
of exclusion outweigh the benefits of inclusion and that exclusion of 
these lands would not result in extinction of Cirsium loncholepis. They 
included in the comment their own analysis of how they reached that 
conclusion, as follows: for potential benefits of designating critical 
habitat, they do not foresee any benefits, but instead stated that it 
would be more beneficial to designate critical habitat on lands where 
no proven, long-term conservation and management regime exists and 
where other Federal protections do not apply. They stated that 
designation of critical habitat will provide no additional benefit to 
C. loncholepis because:
     (1) They are developing a draft conservation agreement for Cirsium 
loncholepis (also referred to by the DOD as the Draft Endangered 
Species Management Plan for La Graciosa Thistle (ESMP)) in cooperation 
with the Service that will ensure conservation measures are 
implemented;
     (2) Other existing regulations, such as the National Environmental 
Policy Act (NEPA) and the Environmental Impact Analysis Process (part 
of U.S. Air Force Policy codified in 32 CFR 989), assure that 
appropriate conservation measures are undertaken for listed species and 
their habitat; and
     (3) Limited resources could be better spent on implementation of 
management activities rather than additional unnecessary consultations.
     Our Response: Section 4(b)(2) of the Act directs the Secretary to 
consider the impacts of designating such areas as critical habitat and 
provides the Secretary with discretion to exclude particular areas if 
the benefits of exclusion outweigh the benefits of inclusion unless the 
e