Part III

Federal Register: August 14, 2008 (Volume 73, Number 158)

Rules and Regulations

Page 47705-47767

From the Federal Register Online via GPO Access [wais.access.gpo.gov]

DOCID:fr14au08-11

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Part III

Department of the Interior

Fish and Wildlife Service

50 CFR Part 17

Endangered and Threatened Wildlife and Plants; Designation of Critical

Habitat for Poa atropurpurea (San Bernardino bluegrass) and Taraxacum californicum (California taraxacum); Final Rule

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service 50 CFR Part 17

FWS-R8-ES-2007-0010; 92210-1117-0000-B4

RIN 1018-AV04

Endangered and Threatened Wildlife and Plants; Designation of

Critical Habitat for Poa atropurpurea (San Bernardino bluegrass) and

Taraxacum californicum (California taraxacum)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are designating critical habitat for Poa atropurpurea and Taraxacum californicum under the Endangered Species Act of 1973, as amended

(Act). Approximately 2,489 acres (ac) (1,009 hectares (ha)) of land in

San Bernardino and San Diego Counties, California, fall within the boundaries of the critical habitat designation for P. atropurpurea, and approximately 1,914 ac (775 ha) of land in San Bernardino County,

California, fall within the boundaries of the critical habitat designation for T. californicum.

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

ADDRESSES: The final rule, final economic analysis, and map of critical habitat will be available on the Internet at http:// www.regulations.gov. Supporting documentation we used in preparing this final rule, will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service,

Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad,

CA 92011; telephone 760-431-9440; facsimile 760-431-5901.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.

Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see

ADDRESSES section). If you use a telecommunications device for the deaf

(TDD), call the Federal Information Relay Service (FIRS) at 800-877- 8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the designations of critical habitat for Poa atropurpurea and Taraxacum californicum in this final rule. For more information on the taxonomy, biology, and ecology of P. atropurpurea and T. californicum, refer to the final listing rule published in the Federal Register on September 14, 1998 (63 FR 49006), the proposed critical habitat rule published in the Federal Register on August 7, 2007 (72 FR 44232), and the notice of availability (NOA) of the draft economic analysis (EA) published in the

Federal Register on April 16, 2008 (73 FR 20600).

Previous Federal Actions

As discussed in the proposed rule (72 FR 44232, August 7, 2007), the Service agreed, as part of an April 20, 2007, settlement agreement, to submit to the Federal Register a proposed rule to designate critical habitat, if prudent, on or before July 27, 2007, and a final rule by

July 25, 2008. The proposed critical habitat designations for Poa atropurpurea and Taraxacum californicum were signed on July 25, 2007 and published in the Federal Register on August 7, 2007 (72 FR 44232).

We also published a reopening of the public comment period and notice of public hearings, which were held in San Bernardino, California on

January 10, 2008, on December 11, 2007 (72 FR 70284), and we published a NOA of the draft EA (dated April 9, 2008) of the proposed rule on

April 16, 2008 (73 FR 20600).

For a discussion of additional Federal actions that occurred prior to the proposed designations of critical habitat for Poa atropurpurea and Taraxacum californicum, please refer to the ``Previous Federal

Actions'' section of the proposed critical habitat rule (72 FR 44232,

August 7, 2007) and the final listing rule (63 FR 49006, September 14, 1998).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed designations of critical habitat for Poa atropurpurea and Taraxacum californicum during three comment periods. The first comment period, associated with the publication of the proposed rule for these two species, opened August 7, 2007, and closed October 9, 2007 (72 FR 44232). We received two requests for a public hearing during this comment period. The second comment period associated with the publication of a notice of public hearings, which were held in San

Bernardino, California on January 10, 2008, opened December 11, 2007, and closed to January 25, 2008 (72 FR 70284). The third comment period, associated with the publication of the notice of availability of the draft EA (dated April 9, 2008) of the proposed designations, opened

April 16, 2008, and closed May 16, 2008 (73 FR 20600). During these three public comment periods, we contacted appropriate Tribal governments; Federal, State, and local agencies and jurisdictions; scientific organizations; and other interested parties and invited them to comment on the proposed critical habitat designations for these two species and the associated draft EA.

During the first comment period, we received seven comments directly addressing the proposed critical habitat designations: one from a Federal agency; three from peer reviewers; and three from individual members of the public. During the second comment period and the January 10, 2008, public hearings, we received eight comments directly addressing the proposed critical habitat designations: five from local governments, two from organizations, and one from an individual member of the public. During the third comment period, we received four comments directly addressing the proposed critical habitat designations: one from a Federal agency, one from a Tribal government, one from a local government, and one from an individual member of the public. We received two comments directly addressing the draft EA, including one from a Federal agency and one from an individual member of the public.

Peer Review

In accordance with our policy published on July 1, 1994 (59 FR 34270), we solicited expert opinions from three knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region where the species occurs, and conservation biology principles. As noted above, we received responses from three of the peer reviewers.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding critical habitat for Poa atropurpurea and Taraxacum californicum. All comments received were grouped into general issue categories relating to the proposed critical habitat rule and draft EA for P. atropurpurea and T. californicum and are addressed in the following summary and incorporated into this final rule as appropriate.

Peer Reviewer Comments

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

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critical habitat. One peer reviewer provided comments primarily on Poa atropurpurea, one peer reviewer provided comments primarily on

Taraxacum californicum, and the third peer reviewer provided comments on both species. Unit 3, Belleville Meadow, was cited as the most important site for P. atropurpurea by one peer reviewer and as the site containing the most vigorous population of T. californicum by another.

Two commenters stressed the importance of understanding the threat caused to T. californicum by hybridization with the nonnative T. officinale and urged the development of a plan to remove T. officinale and hybrids from meadows where the two species co-occur. One peer reviewer indicated that the Service should investigate the viability and fitness of hybrid offspring as well as their breeding system so that appropriate management could be developed. Another peer reviewer stated that even when habitat for T. californicum is fenced or otherwise protected from disturbances, there would be a perpetual need to remove nonnative plants to protect T. californicum to provide for its recovery.

Our Response: The peer reviewers confirmed the importance of the areas that we identified as containing features essential to the conservation of each species and consequently delineated as critical habitat. Additionally, we added details about special management needs provided by the peer reviewers on topics such as hybridization in the

``Special Management Considerations or Protection'' section and the

``Final Critical Habitat Designations'' section of this rule.

Comment 2: Two peer reviewers provided comments on the size of the critical habitat units. One peer reviewer indicated we should consider using a buffer distance between 328 ft (100 m) and 3,280 ft (1,000 m) around known populations to delineate critical habitat. The peer reviewer stated that use of a buffer around the known populations would help protect the habitat of these two species and provide for their life history functions. The peer reviewer indicated that a larger buffer would: (1) Allow room for populations of these two plants to expand; (2) incorporate areas in which pollination and gene transfer could occur; and (3) allow a larger area in which the species could be protected from nonnative species by limiting nearby disturbance of habitat. Another peer reviewer stated that the extent of habitat included in critical habitat for Units 4 and 5 for Poa atropurpurea seemed too large when considering the population sizes reported for these units.

Our Response: We believe that we captured in the proposed rule the appropriate extent of habitat in the units to be designated as critical habitat. Each critical habitat unit designated contains the physical and biological features essential to the conservation of each species and supports the primary constituent elements (PCEs) for these two species, including the known populations, montane meadow habitat, and the hydrologic features within montane meadows. The hydrologic features create the wet or mesic conditions that support these two species. As discussed in the ``Criteria Used to Identify Critical Habitat'' section, we delineated proposed critical habitat for Poa atropurpurea and Taraxacum californicum using the following criteria: (1) Areas occupied by individuals at the time of listing and areas currently occupied by these species; (2) areas containing one or more of the PCEs for these species (for example, montane meadow habitat); and (3) areas currently occupied by more than 10 individuals of either species. To capture the physical and biological features essential to the conservation of each species, we included meadow habitat within 328 ft

(100 m) of known occurrences, and in most cases the entire montane meadow associated with designated occurrences. However, the mapping process we used does not include non-meadow habitat, such as Great

Basin sage scrub or Jeffrey pine forest vegetation communities. We believe our criteria capture the physical and biological features essential to the conservation of P. atropurpurea and T. californicum and appropriately identify the areas that meet the definition of critical habitat. The peer reviewer suggested that designating additional land as buffers would allow for population expansion, pollination and gene flow, and management for nonnative species.

However, we determined that our designation of the areas containing the physical and biological features fulfills these biological needs and is adequate to conserve these species (for a more detailed discussion see the ``Criteria Used To Identify Critical Habitat'' section).

In response to the peer review comment that some areas appear large in relationship to the size of the population, please refer to the

``Criteria Used To Identify Critical Habitat'' section of the rule for the explanation of how we identified those areas that contain the physical and biological features essential to the conservation of Poa atropurpurea and Taraxacum californicum within the geographical area occupied by the species at the time of listing (which includes the wet meadow habitat that supports the populations). Applying the criterion to delineate the wet meadow habitat using the USFS-modeled potential habitat specific to each species (Volgarino et al. 2000a, pp. 1-2; 2000b, pp. 1-2) and aerial or satellite imagery resulted in differing sizes of critical habitat units based on the extent of wet meadow habitat in each unit.

Comment 3: One peer reviewer stated that he visited Unit 1, Pan

Springs Meadow, several times since 1985 and observed dozens of

Taraxacum californicum plants during some years. While the peer reviewer indicated that he had not extensively surveyed the area, he believes there are between 15 and 20 T. californicum plants in the area

(Krantz 2008a, p. 1). The peer reviewer indicated that this unit has biogeographical significance to T. californicum because it represents one of the three largest remaining sites at the northeast end of Big

Bear Valley. Within the northeast portion of Big Bear Valley are occurrences at Pan Hot Springs Meadow, Arrastre Flats, and North

Baldwin Lake. The peer reviewer stated that the Arrastre Flats occurrence has not been observed for a number of years, despite several recent surveys in the area, and that the North Baldwin Lake occurrence has diminished to about 15 individuals. For these reasons, the reviewer believes we should designate Unit 1, Pan Hot Springs Meadow, as critical habitat for T. californicum as well as for Poa atropurpurea.

Our Response: We acknowledged in the proposed rule that the Pan Hot

Springs Meadow contains occurrences of Taraxacum californicum; however, the data we had did not include the information provided by the peer reviewer. At the time of the proposed rule, we believed that our proposal adequately represented the habitat needed for the conservation of T. californicum throughout its range. We proposed critical habitat in Unit 2, which captures the montane meadow referred to by the peer reviewer as North Baldwin Lake. We did not include the habitat at Pan

Hot Springs or Arrastre Flat because we did not have data to show that large populations (greater than 10 individuals) of T. californicum occupied these areas. Upon receipt of these peer reviewer comments, we reviewed the available information regarding T. californicum and determined that the montane meadow habitat in Pan Hot Springs Meadow does support a large population of T.

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californicum and meets the definition of critical habitat for T. californicum (see ``Summary of Changes from the Proposed Rule'' and the

``Final Critical Habitat Designations'' sections below). In our NOA for the draft EA (73 FR 20600; April 16, 2008), we notified the public that we were considering the inclusion of Unit 1 as critical habitat for T. californicum and requested comment on the data that we received from the peer reviewer. We received information from the peer reviewer indicating that Pan Hot Springs Meadow supported 12 T. californicum plants this year. Therefore, we determined that Pan Hot Springs Meadow met our criteria for designating critical habitat, and we included this location within Big Bear Valley because it is believed to be the historical core area for both of these species (Soreng 2007, p. 1-2).

The areas we included represent the largest populations that still occur for these two species. Although we concluded that Pan Hot Springs

Meadow contains the features essential to the conservation of both Poa atropurpurea and T. californicum, we excluded Unit 1 from the designations of critical habitat under section 4(b)(2) of the Act (16

U.S.C. 1531 et seq.) because the benefits of excluding this area outweigh the benefits of including this area in critical habitat (see

Comment 9 below and see ``Exclusions Under Section 4(b)(2) of the Act'' section).

Comment 4: Two peer reviewers commented on locations not included in the proposed rule that may be important to the long-term conservation of Poa atropurpurea and Taraxacum californicum. One peer reviewer indicated that montane meadow habitat southeast of Baldwin

Lake in and around Shay Meadows and Lake Erwin may ``harbor substantial stands of P. atropurpurea.'' The reviewer indicated that this area may not have been surveyed because it is primarily privately owned land.

The peer reviewer stated that we should pursue the possibility of surveying this area and consider ways to protect any substantial stands of P. atropurpurea that are found. Another peer reviewer expressed concerns that critical habitat was not proposed in the western portion of Big Bear Valley that was historically the core portion of the range for both of these species. The peer reviewer identified three privately owned parcels (China Gardens Meadow, Eagle Point Meadow, and Metcalf

Meadow) containing small, extant populations of P. atropurpurea and T. californicum that were not included in the proposed critical habitat rule and stated that these areas are significant to the overall distribution of both species.

Our Response: We believe that these final designations for each species accurately contain all specific areas meeting the definition of critical habitat for Poa atropurpurea and Taraxacum californicum.

As discussed in the ``Criteria Used to Identify Critical Habitat'' section of the proposed rule and this final rule, we delineated proposed critical habitat for Poa atropurpurea and Taraxacum californicum using the following criteria: (1) Areas occupied by individuals at the time of listing and areas currently occupied by these species; (2) areas containing one or more of the PCEs for these species (for example, montane meadow habitat); and (3) areas currently occupied by more than 10 individuals of either species. Application of these criteria captures the physical and biological features that are essential to the conservation of these species, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat.

The criteria we used resulted in a critical habitat designation that is representative of the diversity in each species' range. The small populations of Poa atropurpurea and Taraxacum californicum at

China Gardens Meadow, Eagle Point Meadow, and Metcalf Meadow are in the developed portions of Big Bear Valley. These areas may have once represented the core populations for these two species, but these populations are reduced, degraded, and fragmented to a point where we no longer believe they substantially contribute to the conservation of these two species. Populations in these meadows did not meet our criteria because no more than 10 plants are documented in each of these meadows. In the areas with no more than 10 plants, we believe it is unlikely that reproduction will occur with enough success for these populations to contribute to the long-term conservation of these species. We included the best representative habitat that remains in

Big Bear Valley as critical habitat in these designations (Units 1

(excluded), 2 (designated), and 6 (designated)).

We did not designate critical habitat southeast of Baldwin Lake in and around Shay Meadows and Lake Erwin because we do not have data indicating that Poa atropurpurea or Taraxacum californicum occur in these areas or that these areas are otherwise essential for the conservation of the species. We believe that the lands we have identified in this rule can adequately support the recovery of P. atropurpurea and T. californicum through appropriate conservation measures (see the ``Special Management Considerations or Protection'' section for details about the type of management needed for these species).

Comment 5: One peer reviewer stated that voucher specimens should be collected to verify the presence of Poa atropurpurea because, in the past, this species has been confused with other Poa species (see Curto 1992). Specifically, the peer reviewer did not believe there was adequate documentation of P. atropurpurea in Unit 13, Mendenhall

Valley, from data provided in the proposed rule. The peer reviewer stated that a voucher specimen has not been collected from Mendenhall

Valley since 1981.

Our Response: In general, we agree with the peer reviewers' statement that the collection of voucher specimens is important to verify of the presence of Poa atropurpurea in areas where the identification is not certain. We encourage repeated visits to confirm continued occupancy, but recommend that populations are vouchered approximately once every 10 years to reduce impacts to the populations.

In cases where there are fewer than 20 individuals present, we recommend that no voucher is taken, and instead document the occurrences with photographs, field notes, and a data form. Collections should occur in accordance with all State and Federal regulations and according to standard herbarium practices described in Ross (1996, p. 19). Collections on Federal land require a permit under section 10(a)(1)(A) of the Act and would include sampling restrictions in accordance with the permit. Voucher specimens for this species should include portions of both male and female plants.

Although the last voucher of this population was collected in 1981, we have concluded that that Unit 13, Mendenhall Valley, was occupied by

Poa atropurpurea at the time of listing as well as at the present time.

In 1994, U.S. Forest Service (USFS) botanists documented the presence of 100 P. atropurpurea plants in Mendenhall Valley (Volgarino and

Winter 1994, pp. 1-2; CNDDB 2006a). Due to the peer reviewer's comment, we contacted the Cleveland National Forest (CNF) and requested additional documentation on this population. They provided monitoring reports from 2001 and 2002 (Davis 2001, pp. 1-2; Davis 2002, p. 1;

Winter 2002, pp. 1-5). In 2002, USFS botanists documented 175 P.

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atropurpurea individuals in Mendenhall Valley (Davis 2002, p. 1; Winter 2002, pp. 1-5). Based on this information, we believe the population of

P. atropurpurea is robust and conclude that the area that supports it meets our definition of critical habitat. We acknowledge the peer reviewers' suggestion that this occurrence should again be vouchered.

We discussed this suggestion with the forest botanist at the CNF (Young 2008, p. 1) who recommended we obtain a voucher specimen of P. atropurpurea from Mendenhall Valley from USFS land in a year when the

P. atropurpurea population in this area is relatively abundant.

Comment 6: Two peer reviewers expressed concern for the long-term persistence of Taraxacum californicum due to hybridization with the nonnative T. officinale. The peer reviewers expressed concern that hybrid individuals threaten the listed species through genetic introgression and possibly direct competition with the listed species.

The peer reviewers urged the Service to address this issue. One peer reviewer indicated that he observed hybrid individuals in Unit 1 that displayed intermediate characteristics of T. californicum and T. officinale. Additionally, the peer reviewer stated that T. officinale is present in Units 1, 2, 3, and 12, and an active management program should be implemented to remove the nonnative species in these units.

Our Response: We agree that Taraxacum californicum is threatened by hybridization. The listing rule identified hybridization with the nonnative T. officinale as a threat to T. californicum at Cienega Seca

Meadow (Unit 11) (63 FR 49006, pp. 49016-49017). Further, we discussed hybridization in the proposed rule in the ``Background,'' ``Primary

Constituent Elements,'' and ``Final Critical Habitat Designations'' sections of the proposed rule (72 FR 44232, August 7, 2007) and specifically identified hybridization as a threat in units 5, 6, 7, 8, 9, 10, 11, and 12.

As discussed in the ``Primary Constituent Elements'' section of this rule and according to the San Bernardino National Forest's (SBNF)

Meadow Habitat Management Guide, habitat invaded by Taraxacum officinale may result in hybridization with T. californicum and prevent population growth (SBNF 2002a, p. 113). Although T. officinale reproduces apomitically (production of viable seeds is not dependent on fertilization), it does produce fertile pollen that can fertilize T. californicum (SBNF 2002a, pp. 24, 113). Moreover, the SBNF reported that T. officinale is present at all T. californicum occurrence locations, and plants that appear to be hybrids between the two species were observed by USFS botanists and others (SBNF 2002a, p. 113; Eliason 2007a, p. 4; Krantz 2007, pp. 1-2, 2008a, p. 1). However, individuals that appear as hybrids could be a result of morphological variation within T. californicum. Some scientists believe that observations of hybridization are not conclusive and could use further study (Ellstrand 2007, p. 1). We support further investigation of the hybridization between T. californicum and T. officinale. Although a formal study documenting that hybridization is occurring between T. californicum and

T. officinale is lacking, we believe that field observations indicate that hybridization may be occurring between these two species (SBNF 2002a, p. 113; CNDDB 2007, pp. 34, 36, 37; Krantz 2007, pp. 1-2, 2008a, p. 1). Therefore, we support the removal of T. officinale from montane meadows. This management action will benefit T. californicum by reducing direct competition from T. officinale and the potential threats of hybridization.

Comment 7: One peer reviewer requested that we clarify the contradiction between the statement that under section 7(a)(2) of the

Act, critical habitat is purely a protective measure and does not require implementation of restoration, recovery, or enhancement measures (72 FR 44236) and the text stating that each unit may require special management considerations or protection to restore, protect, and maintain the primary constituent elements (72 FR 44237-44243).

Our Response: The latter statement relates to the definition of critical habitat under section 3(5)(A) of the Act and the former statement relates to how critical habitat is addressed under section 7(a)(2) of the Act. These two sections of the Act and the discussion on each in the proposed rule do not contradict each other. The Act defines critical habitat as the specific areas within the geographical area occupied by the species, at the time it is listed in accordance with the provisions of section 4 of this Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection; and specific areas outside the geographical area occupied by the species at the time it is listed in accordance with the provisions of section 4 of this Act, upon a determination by the Secretary that such areas are essential for the conservation of the species. To support our determinations that specific areas meet the definition of critical habitat, we identify in this rule the types of special management considerations or protection the physical and biological features may require (see ``Special

Management Considerations or Protection'' section). In this way, critical habitat can assist public agencies and private landowners in identifying management actions that will contribute to the conservation of federally listed species on those lands.

Section 7(a)(2) of the Act applies once critical habitat is identified and designated and requires Federal agencies to ensure that any action they fund, authorize, or carry out is not likely to destroy or adversely modify such designated critical habitat. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area, and the consultation requirement under section 7(a)(2) does not mandate that areas designated as critical habitat be affirmatively managed or protected.

Public Comments

Comment 8: Several commenters stated that the western portion of

Unit 1, Pan Hot Springs Meadow, is above the high water line for Lake

Baldwin and that this area does not regularly flood. Therefore, the commenters concluded that the area above the high water line for

Baldwin Lake does not support the PCEs for Poa atropurpurea and they requested that this area be removed from critical habitat. During the third comment period, the Big Bear City Community Service District

(BBCCSD) submitted a draft of the Pan Hot Springs Meadow Habitat

Management Plan (HMP) for the areas that support P. atropurpurea and

Taraxacum californicum. The HMP included data from a survey the BBCCSD initiated for P. atropurpurea and T. californicum, as well as three other federally listed plant species that occur in the Pan Hot Springs

Meadow. The survey, which was conducted by Dr. Timothy Krantz, showed that the areas supporting P. atropurpurea and T. californicum in the

Pan Hot Springs Meadow are limited to approximately 40 ac (16 ha) in the northwest and central portions of the area that was proposed as critical habitat Unit 1 (Krantz 2008b, pp. 3-8, 12, map). Additionally, we received information during the third comment period from the USFS indicating that no meadow habitat or known occurrences of P.

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atropurpurea or T. californicum exist in the area proposed as critical habitat Unit 1 north of State Route 18, and that this area is not part of the hydrologic system supporting the meadow south of State Route 18

(Holtrop 2008, p. 1-2). One commenter stated that we could remove Unit 1 from critical habitat because recovery for P. atropurpurea can be achieved with the conservation measures that are in place at other areas where this species occurs. This commenter specifically indicated that other areas (Wildhorse Meadow, Holcomb Valley, and other non- specific locations) outside of Unit 1 provide adequate conservation for

P. atropurpurea, and therefore Unit 1 is not essential to the conservation of the species.

Our Response: We appreciate the information provided by the commenters. Based on the information provided, we reanalyzed the boundaries for proposed critical habitat Unit 1 and found that the majority of the area that we proposed as Unit 1 lacks the physical and biological features essential for the conservation of Poa atropurpurea and Taraxacum californicum. We removed three locations from the area proposed as Unit 1 that do not contain the PCEs: (1) 24 ac (10 ha) that are elevated above the montane meadow and have species such as

Artemisia tridentata (Great Basin Sage) that are too dry to support P. atropurpurea and T. californicum and do not contain the PCEs; (2) 19 ac

(8 ha) north of State Route 18 where wet meadow habitat does not exist; and (3) 12 ac (5 ha) of drier meadow habitat where surveys confirmed that P. atropurpurea and T. californicum do not occur. Additionally, we removed 47 ac (19 ha) of extremely wet meadow habitat in the east portion of the area proposed as Unit 1 that regularly floods from

Baldwin Lake because the area does not meet the criteria used to identify critical habitat, occurs outside of the potential dispersal distance from known occurrences, and therefore is not likely to contribute to the conservation of P. atropurpurea and T. californicum.

We concluded that these lands are unlikely to support recovery or contribute to the long-term conservation for P. atropurpurea or T. californicum. Finally, we determined that 40 ac (16 ha) in Unit 1 meet the definition of critical habitat for P. atropurpurea and T. californicum; we refer to this area as ``essential lands.'' In our NOA for the draft EA (73 FR 20600; April 16, 2008), we notified the public that we received input during the public comment process on Unit 1 and that we would possibly modify the critical habitat boundary of this unit to reflect the best scientific and commercial data available.

We believe the 40 ac (16 ha) of Unit 1 meet the definition of critical habitat for Poa atropurpurea and Taraxacum californicum because this unit provides the physical and biological features essential to the conservation of these species in Big Bear Valley, an area that historically represented the core of both species' distributions. Additionally, Pan Hot Springs Meadow is unique as it supports one of the few P. atropurpurea occurrences in Big Bear Valley that has not been severely degraded by development or other human impacts. However, the BBCCSD initiated long-term conservation of Unit 1 by drafting, adopting, and implementing the Pan Hot Springs Meadow HMP

(discussed detail below, in response to Comment 9). Furthermore, the economic analysis indicates that there are disproportionate and potentially significant costs to the BBCCSD attributable to the designation of critical habitat. We balanced the benefits of including the remaining portion of Unit 1 in the designation for each species against the benefits of excluding it under section 4(b)(2) of the Act and determined that the benefits of exclusion outweigh the benefits of inclusion. Therefore, we excluded the 40 ac (16 ha) of essential lands now identified in Unit 1 from critical habitat (see also response to

Comment 9 and ``Exclusions Under Section 4(b)(2) of the Act'' section).

Finally, in response to the commenter who indicated that Unit 1 might not meet the definition of critical habitat for Poa atropurpurea because other areas are already conserved for this species, we provide the following response. Although historical occurrences of P. atropurpurea are known from one location (Wildhorse Meadow) identified by the commenter, we did not include this area in our proposed designation because this species has not been observed at Wildhorse

Meadow for several years, despite recent survey efforts. We do not have additional information regarding conservation for P. atropurpurea for the other areas identified by the commenter. Holcomb Valley supports P. atropurpurea, and we designated this area as critical habitat (referred to in this document as Unit 4: Hitchcock Meadow). We do not have data on the non-specific areas provided by the commenter to indicate that those areas are occupied by P. atropurpurea or contain the physical and biological features essential to the conservation of the species. A limited number of sites where P. atropurpurea occurs (for example, on

Forest Service and or Wildlands Conservancy lands) have minimal conservation measures in place (for example, limited grazing and control over public access). However, too few locations, including those under Federal ownership, receive the type of conservation protections needed to ensure the survival and recovery of P. atropurpurea and Taraxacum californicum (see ``Special Management

Considerations or Protection'' section). Unauthorized and uncontrolled human access continues to threaten most montane meadows where these species occur, and in many meadows the hydrology has been altered to further threaten the survival of these species. Therefore, the existing conservation for P. atropurpurea, as highlighted by the commenter, does not affect our conclusion that the 40 ac (16 ha) of essential lands identified in Unit 1 meet the definition of critical habitat for P. atropurpurea.

Comment 9: Several commenters stated that the western portion of the area proposed as Unit 1, Pan Hot Springs Meadow, is the site of a future recreational park for the Big Bear community. The community park is planned in two phases: Phase One is located outside of the area proposed as Unit 1, and Phase Two is located within the area proposed as Unit 1. The commenters indicated that the development of Phase Two of the park would not impact the sensitive resources (for example, the habitat for Poa atropurpurea) in this area, but because the area proposed as critical habitat in Unit 1 was poorly delineated the designation of critical habitat would impact the ability of the BBCCSD to develop Phase Two of the proposed park. The commenters explained that the designation of critical habitat could, therefore, limit the recreational opportunities for the residents of and visitors to the Big

Bear area. One commenter stated that the park may include a museum or interpretive signs to describe the traditions and history of Native

Americans who historically inhabited the area and therefore may benefit the Native American community and others.

The commenters requested that we exclude the western portion of

Unit 1 (or make accommodations in the final decision), so that the plans for the recreational park and cultural interpretation of the site are not impacted. One commenter stated that Unit 1 should be excluded from critical habitat because the benefits of exclusion outweigh the benefits of inclusion. As mentioned above in Comment 8, the BBCCSD submitted a draft HMP for the

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areas in Unit 1 that support occurrences of Poa atropurpurea and

Taraxacum californicum as well as three other federally listed plant species. The HMP outlines the preservation and management of the federally listed plants in Unit 1 (Pan Hot Springs Meadow) and the areas that are essential to the maintenance of the existing hydrological conditions (Krantz 2008b, p. 12). The commenter indicated that the HMP will provide for the long-term management and conservation of P. atropurpurea and T. californicum within the areas essential to these species. The commenter stated that exclusion of critical habitat would benefit this new partnership between the BBCCSD, the adjacent landowner, and several other stakeholders, including the Service, USFS,

University of Redlands, and the San Manuel Band of Serrano Mission

Indians. Additionally, the commenter believes that designation of critical habitat may impede the development of these partnership opportunities. Finally, the commenter indicated that in addition to the implementation of the HMP, the BBCCSD may pursue the creation of a

Natural Community Conservation Plan or a mitigation bank to further protect this area.

Our Response: Under Section 4(b)(2) of the Act, designations of critical habitat are made on the basis of the best scientific data available and after taking into consideration the economic impact, the impact on national security, and any other relevant impact. The

Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned.

After determining all areas that meet the definition of critical habitat under section 3(5)(A) of the Act, we took into consideration the economic impact, the impact on national security, and other relevant impacts, of specifying any particular area as critical habitat. This analysis included the areas in Unit 1, which some commenters requested that we exclude from critical habitat. We worked cooperatively with the BBCCSD and the adjacent landowner in development of the HMP and long-term management of the entire Pan Hot Springs

Meadow area. We provided comments on the HMP that the BBCCSD incorporated into the plan. This voluntary preservation and management plan on private lands addresses recovery needs for the two federally endangered plants addressed in these critical habitat designations as well as three other federally-listed plant species that occur in Pan

Hot Springs Meadow. The BBCCSD has also initiated discussions with the

San Manuel Band of Serrano Mission Indians to include them as a partner and participant in the planning process, including development of an educational program for this area. We continue to work closely with the landowners in Pan Hot Springs Meadow through the development and implementation of the HMP and coordination on implementation of other conservation measures throughout the meadow area. We believe the partnership with the landowners and adjacent landowners will provide for the long-term conservation of P. atropurpurea and T. californicum in Pan Hot Springs Meadow. As a result, we evaluated the commitment to implementing the HMP and our partnership with the private landowners during our analysis for exclusion under section 4(b)(2) of the Act.

Except to prohibit certain actions that occur in knowing violation of

State law, the Act does not provide protections for federally-listed plants on private land, such as Pan Hot Springs Meadow, unless the actions on private land that may adversely affect listed plants involve a Federal nexus, and it is unlikely there would be a Federal nexus to trigger a section 7 consultation on the lands within Pan Hot Springs

Meadow. As fully explained later in this rule, we excluded Unit 1 from the critical habitat designations under section 4(b)(2) of the Act (see

``Exclusions Under Section 4(b)(2) of the Act'' section for details).

Comment 10: One commenter stated that he owns land within Unit 1,

Pan Hot Springs Meadow, which contains wells producing water from geothermal sources. This landowner stated that he also owns the water rights associated with the wells. The commenter indicated during the public hearing and in an additional comment letter submitted during the third comment period that he would dedicate water from his private source to maintain the hydrology that is critical to supporting Poa atropurpurea and Taraxacum californicum in Pan Hot Springs Meadow. The commenter indicated that he would like to participate and contribute his support to the HMP that the BBCCSD has developed. The landowner also provided us with information about some of his future development plans for his land adjacent to Pan Hot Springs Meadow, indicating that his plans would proceed in a way that protects the meadow habitat and associated flora and fauna, as well as maintain the current hydrology of Pan Hot Springs Meadow.

Our Response: The Service is committed to working with landowners in Unit 1 to conserve Poa atropurpurea and Taraxacum californicum and the PCEs within this unit and applauds the initiative taken by both the

BBCCSD and this private landowner to conserve the Pan Hot Springs

Meadow. We excluded Unit 1 from critical habitat as discussed above in the response to Comments 8 and 9. We believe that development projects near the Pan Hot Springs Meadow will incorporate conservation measures to maintain meadow habitat and the hydrology of the meadow. In the process of finalizing the Pan Hot Springs Habitat Management Plan, thelandowner who made the above comments actively participated in the review of the HMP, is committed to implementing of the HMP, and is committed to conservation of the Pan Hot Springs Meadow. The BBCCSD and this landowner plan to work with other partners in the adaptive management of Pan Hot Springs Meadow for the benefit of P. atropurpurea and T. californicum. The landowner's commitment made in his public comments on this rule indicate that the use or development of his geothermal wells (otherwise known as Pan Hot Spring) will help maintain the hydrological conditions within the range of what is considered natural for this meadow. By returning clean water to the meadow ecosystem, this action will help ensure that the hydrological processes that help maintain the meadow will be preserved. As stated above, in the response to Comment 9, we balanced the benefits of inclusion against the benefits of exclusion and determined that the benefits of exclusion outweigh the benefits of inclusion for those areas within the

Pan Hot Springs Meadow. Therefore, we have excluded Unit 1 from critical habitat (see ``Exclusions Under Section 4(b)(2) of the Act'' section).

Comment 11: One commenter stated that the designations of critical habitat for Poa atropurpurea and Taraxacum californicum were flawed because some known occurrences of these two species were not proposed as critical habitat. The commenter requested that we include all occupied occurrences in the critical habitat, or provide scientific reasons for not including specific areas. Additionally, the commenter cited Leppig and White (2006) to demonstrate that peripheral populations are generally small in size, but still considered important for conservation purposes.

Our Response: The commenter did not provide any new data to indicate

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that the information we provided in the proposed critical habitat designations was incorrect or incomplete. The commenter listed all areas historically occupied by these species that we had not included in the proposed critical habitat and requested that we include these areas. We are unaware of any data on population size for most historical occurrences. Without recent information about the status and size of a population, we are unable to determine that these lands satisfy the criteria we identify in this rule for critical habitat or to discern the importance of these particular locations to the overall conservation of these species. We are required to use the best scientific and commercial data available to designate critical habitat.

Thus, we developed this critical habitat based on verifiable field observations and documentation of the condition of occupied habitat

(CNDDB 2005a, 2005b, 2006a, 2006b; USFS 2002a). Additionally, we included peripheral populations in these designations as described in

Leppig and White (2006, p. 264). For both species we included occupied meadow habitat at the edges of the range and at the highest and lowest occurrences. For additional information about why we did not include all occupied habitat in these designations, see our response to Comment 4 and the discussion in the rule below under ``Criteria Used To

Identify Critical Habitat.''

Comment 12: One commenter stated that the proposed designations are flawed because they do not include unoccupied habitat for recovery, and that without including some suitable, but unoccupied, habitat (areas with one or more of the PCEs) in the critical habitat designations to promote the recovery of Poa atropurpurea and Taraxacum californicum, the Service will not be able to meet the Act's recovery goals and mandate.

Our Response: We identified areas within the geographical range of

Poa atropurpurea and Taraxacum californicum that were occupied at the time of listing and contain the physical and biological features essential to the conservation of these species that may require special management considerations or protection. We designate critical habitat in areas outside the geographical area presently occupied by the species only when such a designation would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)). Accordingly, when the best scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we cannot designate critical habitat in areas outside the geographical area occupied by the species. The critical habitat that we identified for P. atropurpurea and T. californicum represents areas currently occupied by for these species.

The species are also well represented in the occupied habitat designated as critical habitat (see the responses to Comment 2 and 3, above). Therefore, consistent with the Act and its implementing regulations, we are not designating any lands outside the area currently occupied by P. atropurpurea and T. californicum because at this time we believe that the occupied areas we have designated are adequate to ensure the conservation of the species. Therefore, we have determined that there are no unoccupied areas that are essential for the conservation of the species.

Comments from Other Federal Agencies

Comment 13: The USFS provided specific information regarding areas in Unit 14 and Unit 15 that do not support the PCEs for Poa atropurpurea. The USFS stated that Unit 14 (as proposed) included areas that are developed as campgrounds and recreational residences. They also stated that portions of Unit 14 are dense Jeffery Pine forest rather than meadow habitat. The USFS indicated that Unit 15 (as proposed) included red shank, chamise, and oak woodland vegetation types in addition to meadow habitat. The USFS requested that we remove areas from the proposed designations that do not support the PCEs for

P. atropurpurea and requested that the areas outside of the meadow habitat not be designated as critical habitat.

Our Response: We received additional data from the USFS in response to their comment, including maps of the vegetation in and around the proposed critical habitat units. We also conducted site visits with staff from the CNF on January 24, 2008, and March 28, 2008. We are in agreement with the USFS and found that some areas in proposed Units 14 and 15 do not contain the features essential to the conservation of Poa atropurpurea. Therefore, we removed approximately 301 ac (122 ha) of forested habitat in Unit 14 and approximately 66 ac (26 ha) of oak woodland, sage brush scrub, chaparral, and dry meadow habitat from Unit 15 and revised our mapping accordingly to reflect the revised unit boundaries. As a result of these revisions, Unit 14 decreased by 301 ac

(122 ha) and now totals 788 ac (319 ha), and Unit 15 decreased by 66 ac

(26 ha) and now totals 36 ac (15 ha).

Comment 14: The USFS commented that laws, regulations, policies, and Land Management Plan (LMP) direction currently in place provide protection at least equivalent to the protection that a critical habitat designation would provide. The USFS requested that lands proposed as critical habitat for Poa atropurpurea and Taraxacum californicum in the SBNF and the CNF be excluded from the final designations of critical habitat. They stated that their LMP incorporates management direction that provides sufficient protection and management for P. atropurpurea and T. californicum and the habitat for these two species, and that the section 7 consultation on the LMP resulted in the Service coming to a similar conclusion, which resulted in the issuance of a non-jeopardy biological opinion (Service 2005, pp. 203-207, 213-219). Additionally, Appendix H of the LMP includes the

``Meadow Habitat Management Guide'' for the SBNF (SBNF 2002a) and the

``Habitat Management Guide for the Sensitive Plant Species: Delphinium hesperium ssp. cuyamacae, Lilium parryi, Limnanthes gracilis var. parishii, and P. atropurpurea, in Riparian Montane Meadows'' for the

CNF (CNF 1991). The USFS commented that designation of critical habitat on SBNF and CNF lands would not provide any additional benefit to the conservation of the species or their habitat because all site-specific projects proposed by the SBNF and CNF are subject to section 7(a)(2) consultation with the Service. The USFS stated that the designations would unnecessarily add to their analysis burden by requiring SBNF and

CNF to make a determination of effect regarding critical habitat when consulting under section 7 of the Act. The USFS acknowledged their responsibility to conserve listed species and stated that they will continue to provide necessary management, regardless of the outcome of the final critical habitat rule.

Our Response: We determined that National Forest lands contain the physical and biological features essential to the conservation of Poa atropurpurea and Taraxacum californicum, and meet the definition of critical habitat (see ``Criteria Used to Identify Critical Habitat'' section below). We acknowledge that the revised LMP will benefit P. atropurpurea and T. californicum and their habitat. The LMP contains general provisions for species conservation and suggests specific management and conservation actions that will benefit these species and the physical and biological features essential to their conservation.

Implementation of the LMP should

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address known threats to these species on National Forest lands.

However, the LMP is a guidance document and does not require or assure funding for management actions for those measures outlined in the plan.

Additionally, the LMP does not preclude projects from occurring outside of the framework of the plan that could negatively impact areas proposed as critical habitat. We appreciate and commend the efforts of the USFS to conserve federally listed species on their lands.

The Secretary has the discretion to exclude an area from critical habitat under section 4(b)(2) of the Act after taking into consideration the economic impact, the impact on national security, and any other relevant impact if he determines that the benefits of such exclusion outweigh the benefits of designating such area as critical habitat, unless he determines that the exclusion would result in the extinction of the species concerned. We have considered the request from the SBNF and the CNF that we exclude their lands because it would unnecessarily add work in the future to determine the effect regarding critical habitat for actions on their lands and the fact that they had already completed consultation under section 7(a)(2) of the Act on their revised LMP.

As part of our section 7 consultation with the USFS on the LMP for the SBNF and the CNF, the USFS has already consulted on various activities carried out on National Forest lands including: Roads and trail management; recreation management; special use permit administration; administrative infrastructure; fire and fuels management; livestock grazing and range management; minerals management; and law enforcement. In our 2005 biological opinion on the

LMP, we determined that implementation of the plan was not likely to jeopardize the continued existence of Poa atropurpurea or Taraxacum californicum (Service 2005, pp. 202-207, 213-219). Since critical habitat has not been previously proposed or designated for these species, it is anticipated that the consultation with the USFS regarding their current LMP will be reinitiated. However, because the

USFS has already consulted with us on potential impacts to these species related to the activities outlined in the LMP, the USFS can supplement its analysis for those activities already analyzed in the

LMP with the additional analysis required for critical habitat areas.

We do not believe that this additional analysis would place an undue burden on the USFS in this case.

Based on the record before us, we have elected not to exclude these lands and are designating National Forest lands that meet the definition of critical habitat for Poa atropurpurea and Taraxacum californicum. We will continue to consider on a case-by-case basis in future critical habitat rules whether to exclude specific lands from such designation when we determine that the benefits of such exclusion outweigh the benefits of their inclusion.

Comments from the San Manuel Band of Serrano Mission Indians

Comment 15: The San Manuel Band of Serrano Mission Indians expressed opposition to the proposed rule because: (1) we misidentified the San Manuel Band of Serrano Mission Indians as the ``San Miguel Band of Mission Indians'' in the NOA for the draft EA that published in the

Federal Register on April 16, 2008 (73 FR 20600); (2) we did not adequately recognize the traditional legal rights of the San Manuel

Band of Serrano Mission Indians by failing to recognize the San Manuel

Band of Serrano Mission Indians' consistent historical and traditional use of the area identified as proposed Unit 1 and surrounding areas, which have not been relinquished or abandoned; (3) we did not incorporate the policy directive of Executive Order (E.O.) 13007 by taking into account the unique and specific issues of the San Manuel

Band of Serrano Mission Indians, which include traditional, religious, and cultural rights identified in proposed Unit 1 and surrounding areas; and (4) the proposed rule does not sufficiently incorporate our responsibility to maintain the government-to-government consultation policy as described in the Secretarial Order No. 3206, dated June 28, 2004.

Our Response: With regard to the inadvertent misidentification of the San Manuel Band of Serrano Mission Indians in the April 2008 NOA for the draft EA, although we became aware of this error just prior to the publication of the NOA, we were unable to correct the name in the published document; however, we did correctly identify the San Manuel

Band of Serrano Mission Indians in the media bulletin and other public outreach materials that accompanied publication of the NOA. Although we certainly regret the accidental misidentification of the San Manuel

Band of Serrano Mission Indians in the NOA, it did not materially affect the biological rationale behind the initial proposal of critical habitat. In this final rule we correctly identify the San Manuel Band of Serrano Mission Indians.

It was not our intent to disregard the presence of the Tribal resources that occur in the vicinity of Unit 1 of the proposed critical habitat. Following publication of the August 7, 2007, proposed rule (72

FR 44232), a private citizen presented us with information identifying historical, religious, and cultural resources important to the San

Manuel Band of Serrano Mission Indians in proposed Unit 1, although these lands are not specifically part of the Tribal Trust lands of the

San Manuel Band of Serrano Mission Indians. In the April 16, 2008, NOA for the draft EA (73 FR 20600), we specifically solicited comments from the San Manuel Band of Serrano Mission Indians regarding the potential impacts of the proposed rule on the San Manuel Band of Serrano Mission

Indians. We requested this input from the San Manuel Band of Serrano

Mission Indians in accordance with Secretarial Order 3206 section 3(B)(4) and E.O. 13007. On April 15, 2008, we transmitted a letter to the San Manuel Band of Serrano Mission Indians indicating our interest in discussing the proposed designations of critical habitat and requested information from the San Manuel Band of Serrano Mission

Indians that would contribute to the decision process. On May 12, 2008, we received an electronic mail response to our letter indicating that the San Manuel Band of Serrano Mission Indians would like to coordinate with us to discuss the critical habitat designations. We subsequently met with representatives of the San Manuel Band of Serrano Mission

Indians. Through this coordination, we believe we addressed the concerns of the San Manuel Band of Serrano Mission Indians in this final rule. As a result of our coordination and analysis of all information available, we concluded that the designation of critical habitat would not adversely impact the San Manuel Band of Serrano

Mission Indians. We recognize that the San Manuel Band of Serrano

Mission Indians' ancestral lands include the San Bernardino Mountains, including areas that we have designated as critical habitat. From our discussion with the representatives of the San Manuel Band of Serrano

Mission Indians, we do not believe that activities that the San Manuel

Band of Serrano Mission Indians regularly conducts on federally owned lands included in these designations will negatively impact the PCEs or adversely modify critical habitat. We do not believe that these activities will require a section 7 consultation due to the designation of critical habitat. The designation of critical habitat will not impose any regulatory or restrictive authority over the San Manuel Band of Serrano

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Mission Indians nor change access to or restrict Tribal activities on designated lands. Additionally, we determined that the benefits of exclusion outweigh the benefits of inclusion for the essential lands within Unit 1 identified in this rule and covered by the HMP, which includes historical, religious, and cultural resources important to the

San Manuel Band of Serrano Mission Indians, and we excluded Unit 1 from critical habitat (see ``Exclusions Under Section 4(b)(2) of the Act'' section).

Comments Related to the Draft Economic Analysis

Comment 16: One comment from the USFS stated that while the draft

EA quantified one formal section 7 consultation on a revision of the

LMP for both the SBNF and CNF, the two national forests will conduct these consultations separately, and that the CNF portion of the ongoing effects consultation will be combined with the informal consultation on the CNF's livestock grazing program in Units 13, 14, and 15. The comment further stated that the formal section 7 consultation on a revision of the LMP in the SBNF will cover existing ongoing effects from mining related activities in the national forest, and any future consultations would be driven by proposed plans of operations.

Therefore, the formal consultation on active mining claims in the SBNF quantified in the draft EA should be combined with the consultation on a revision of the LMP in the SBNF.

Our Response: Discussions with relevant USFS personnel clarified that the SBNF and the CNF will consult separately on a revision of the

LMP. However, the consultation involving the CNF will also be a formal consultation and separate from the consultation on its livestock grazing program. It was further clarified that both consultations involving the CNF are likely to occur in 2009. The discussions also indicated that the formal consultation on a revision of the LMP will cover existing ongoing effects from mining related activities in the

SBNF. Sections A.4 and ES.1.3 in the revised EA have been modified to reflect these changes along with relevant changes to administrative costs in the various tables and figures.

Comment 17: One commenter stated that the draft EA does not address the potential impact of designating Unit 1 as a critical habitat on plans for developing the property (Pan Hot Springs). The commenter indicated that these plans include building a new hotel on the property in which the geothermal-water-supplied pools would be a major attraction. The commenter further indicated that a water sales business has been in operation since 1997, selling as much as one million gallons a day from the springs on the property.

Our Response: Sections 3.1.4 and 8.1 in the draft EA acknowledge the recreational and commercial development plans of the owner of Pan

Hot Springs in Unit 1 as communicated by personnel from agencies in the area. During the research and drafting period of the draft EA, despite repeated attempts to contact the landowner, ENTRIX was not able to directly speak with him and confirm the cited plans. Based on the information provided by the landowner in the comment letter, it appears that the planned developments by the landowner would be on the portion of the property that was not included in the proposed critical habitat designation, and it is not clear how development plans and the continued sale of water for commercial purposes will be impacted by the designations of critical habitat, if at all. Therefore, while relevant text in the revised EA has been modified to add the additional information, no changes to anticipated impacts from the designations of critical habitat have been made based on the comment.

The final EA indicates that there are disproportionate and potentially significant costs to the BBCCSD attributable to the designation of critical habitat. In light of these costs, the partnership between the Service, the BBCCSD, and this landowner, and the BBCCSD's commitment to manage and conserve the physical and biological features essential to the conservation of Poa atropurpurea and Taraxacum californicum as discussed in response to comment 9, we evaluated the area within Unit 1 (as defined in this final rule) for exclusion under Section 4(b)(2) of the Act. We balanced the benefits of inclusion against the benefits of exclusion and determined that the benefits of exclusion outweigh the benefits of inclusion. Therefore, we excluded the area within Unit 1 from critical habitat (see response to

Comment 9 and ``Exclusions Under Section 4(b)(2) of the Act'' section) and any economic impact associated with the designations of critical habitat in Unit 1 should be alleviated.

Summary of Changes From Proposed Rule

On August 7, 2007, we proposed to designate approximately 3,014 ac

(1,221 ha) of land for Poa atropurpurea within San Bernardino and San

Diego counties, California, and approximately 1,930 ac (782 ha) of land for Taraxacum californicum within San Bernardino County, California (72

FR 44232). In this final rule, we concluded that 2,529 ac (1,025 ha) meet the definition of critical habitat for P. atropurpurea and that 1,954 ac (791 ha) meet the definition of critical habitat for T. californicum. We excluded all essential habitat in Unit 1 under section 4(b)(2) of the Act. Therefore, we are designating approximately 2,489 ac (1,009 ha) of critical habitat for P. atropurpurea and approximately 1,914 ac (775 ha) of critical habitat for T. californicum. This section presents the differences between what was proposed as critical habitat and what is included in these final designations.

(1) In light of comments received, we re-evaluated the area proposed as critical habitat Unit 1. We reviewed data in our files and conferred with botanists familiar with the species and montane meadow habitat.

(A) New information received indicated that this unit meets our criteria for designating critical habitat for Taraxacum californicum.

Prior to the publication of the proposed rule, we did not believe that more than 10 T. californicum individuals were present in Unit 1. We received information from one peer reviewer that more than a dozen T. californicum had been observed in Unit 1 on several occasions. In recent surveys, 12 T. californicum plants were documented in Unit 1

(Krantz 2008b, p. 7). This new information indicated that the area is occupied by a successfully reproducing occurrence of T. californicum that is essential to the conservation of this species. Therefore, Unit 1 meets the criteria for critical habitat as discussed for T. californicum.

(B) We concluded that some areas mapped in the proposed critical habitat designation for Unit 1 do not contain the PCEs (see ``Primary

Constituent Elements'' section) or otherwise did not meet our criteria for designating critical habitat for either species (see ``Criteria

Used to Identify Critical Habitat'' section below). We removed three areas from the proposed critical habitat Unit 1 that do not contain the

PCEs: (1) 24 ac (10 ha) that are elevated above the montane meadow and contain species such as Artemisia tridentata (Great Basin Sage) that are too dry to support P. atropurpurea and T. californicum and do not contain the PCEs; (2) 19 ac (8 ha) north of State Route 18 where wet meadow habitat does not exist; and (3) 12 ac (5 ha) of drier meadow habitat where surveys confirmed that P. atropurpurea and T. californicum do not occur and PCEs were absent. Additionally, we removed 47 ac (19 ha) of extremely wet meadow habitat in the

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eastern portion of the area proposed as Unit 1 that regularly floods from Baldwin Lake. This area is too wet to support P. atropurpurea or

T. californicum; therefore, the area does not meet the criteria used to identify critical habitat. Although this area may contain the physical and biological features essential to the conservation of the species, this area is unoccupied and recent surveys by species experts confirm that this area occurs outside of the potential dispersal distance from known occurrences. Therefore, we concluded that these lands are unlikely to support recovery or contribute to the long-term conservation for P. atropurpurea or T. californicum. We determined that 40 ac (16 ha) in Unit 1 meet the definition of critical habitat for P. atropurpurea and T. californicum; we refer to this area as ``essential lands.''

(C) The BBCCSD drafted a HMP for Unit 1, which covers the approximately 40 ac (16 ha) of essential lands identified in this rule within Unit 1. The HMP was approved by the Board of Directors of the

BBCCSD on July 7, 2008, and we received assurances that the HMP will be implemented as outlined. Other private landowners coordinated with the

BBCCSD and are committed to managing the lands essential to the conservation of Poa atropurpurea and Taraxacum californicum for the long-term benefit of these species. As a result of our partnership with the BBCCSD; the development of the HMP; the partnership between BBCCSD and the landowner of the main spring in Unit 1; and the economic impacts to BBCCSD attributed to the designation of critical habitat as analyzed in the final EA, we are excluding the 40 ac (16 ha) of essential lands covered by the HMP from Unit 1. We determined that the benefit of excluding these lands from critical habitat outweighs the benefit of including them in critical habitat and that excluding these lands will not result in the extinction of either P. atropurpurea or T. californicum (see ``Exclusions Under Section 4(b)(2) of the Act'' section).

(2) We removed 17 ac (7 ha) of forested terrain along the eastern portion of Unit 11. Forested habitat cannot support Poa atropurpurea or

Taraxacum californicum and does not contain the physical and biological features essential to the conservation of the species. We are designating 81 ac (33 ha) in Unit 11 for P. atropurpurea and T. californicum.

(3) In light of comments made during the public comment period, we re-evaluated the areas proposed as critical habitat in Units 14 and 15

(see comment 13 and response above). We reviewed maps and other material provided by the USFS, conducted a site visit at these two areas with staff from the CNF, and concluded that some areas proposed as critical habitat for Poa atropurpurea do not contain the physical and biological features, could not support P. atropurpurea occurrences, and do not meet the definition of critical habitat. Therefore, we revised our mapping to more accurately capture the PCEs in these two units. We removed 301 ac (122 ha) of densely forested habitat from Unit 14 and 66 ac (26 ha) of oak woodland, sage brush scrub, chaparral, and dry meadow habitat from Unit 15. As a result of these revisions, we are designating 788 ac (319 ha) in Unit 14 and 36 ac (15 ha) in Unit 15 for

P. atropurpurea. These revisions constitute a total reduction of 367 ac

(148 ha) from the proposed critical habitat for P. atropurpurea.

Critical Habitat

Critical habitat is defined in section 3 of the Act as:

(i) The specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features

(a) essential to the conservation of the species and

(b) which may require special management considerations or protection; and

(ii) 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.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary.

Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing actions that are likely to result in 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. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests Federal agency funding or authorization for a discretionary action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even 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.

For inclusion in a critical habitat designation, the habitat within the geographical area occupied by the species at the time it was listed must contain the physical and biological features that are essential to the conservation of the species, and be included only if those features may require special management considerations or protection. Critical habitat designations identify, to the extent known using the best scientific data available, habitat areas that provide essential life cycle needs of the species. These areas contain the PCEs, which are laid out in the appropriate quantity and spatial arrangement for the conservation of the species. Under the Act, we can designate as critical habitat areas outside the geographical area occupied by the species at the time it was listed only when we determine that the best available scientific data demonstrate that such areas are essential for the conservation of the species.

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available.

Further, our Policy on Information Standards Under the Endangered

Species Act (published in the Federal Register on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and

General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific data available.

They require our biologists, to the extent consistent with the Act and with the use of the best scientific data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat, our primary source of information is generally the information developed during the listing process for the species.

Additional information sources may include the recovery plan for the species, articles in peer-reviewed

Page 47716

journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

Habitat is often dynamic, and species may move from one area to another over time. Furthermore, we recognize that designation of critical habitat may not include all of the habitat areas that we may eventually determine are necessary for the recovery of the species. For these reasons, a critical habitat designation does not signal that habitat outside the designated area is unimportant or may not contribute to the recovery of the species.

Areas that support populations, but are outside the critical habitat designations, will continue to be subject to conservation actions we and other Federal agencies implement under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans (HCPs), or other species conservation planning efforts if information available at the time of these planning efforts calls for a different outcome.

Methods

As required by section 4(b) of the Act, we use the best scientific data available in determining areas within the geographical area occupied at the time of listing that contain the features essential to the conservation of Poa atropurpurea and Taraxacum californicum respectively, and areas outside the geographical area occupied at the time of listing that are essential for the conservation of P. atropurpurea and T. californicum individually. We have also reviewed available information that pertains to the habitat requirements of these species. These sources of information included, but were not limited to, the proposed (60 FR 39337; August 2, 1995) and final (63 FR 49006; September 14, 1998) rules to list these species; data and information published in peer-reviewed articles; data and information contained in reports prepared for or by the USFS; discussions with species experts including USFS personnel; data and information presented in academic research theses; data provided by the California

Natural Diversity Database (CNDDB); herbarium records; data submitted during section 7 consultations; and regional Geographic Information

Systems (GIS) data.

Primary Constituent Elements (PCEs)

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12, in determining which areas within the geographical area occupied at the time of listing to designate as critical habitat, we consider the physical we consider the physical and biological features that are essential to the conservation of the species to be the primary constituent elements laid out in the appropriate quantity and spatial arrangement for conservation of the species. These include, but are not limited to:

(1) Space for individual and population growth and for normal behavior;

(2) Food, water, air, light, minerals, or other nutritional or physiological requirements;

(3) Cover or shelter;

(4) Sites for breeding, reproduction, and rearing (or development) of offspring; and

(5) Habitats that are protected from disturbance or are representative of the historic, geographical, and ecological distributions of a species.

We derive the specific primary constituent elements (PCEs) required for Poa atropurpurea and Taraxacum californicum from the biological needs of each species as described in the final listing rule published in the Federal Register on September 14, 1998 (63 FR 49006), the proposed critical habitat rule published in the Federal Register on

August 7, 2007 (72 FR 44232), and information below.

Space for Individual and Population Growth, and Nutritional

Requirements

Open-canopy forested areas supporting relatively undisturbed, wet meadows subject to flooding during wet years support growth, reproduction, and pollination (by wind for Poa atropurpurea, by insects for Taraxacum californicum) for both species (SBNF 2002a, p. 109; Curto 1992, p. 12). Additionally, T. californicum occurs in smaller forest openings with seeps, springs, or creeks. Due to the relatively small size of these forest openings, these areas are not generally mapped or named as meadows. We have referred to these areas as ``un-named meadow areas'' (see Tables 1 and 2 in the August 7, 2007, proposed rule (72 FR 44232)). Both species require non-compacted or non-eroded soils for reproduction, growth, and survival (Curto 1997, p. 12). Invasive, nonnative species may compete for open, bare ground and reduce space available for growth (Curto 1992, p. 10). Invasive, nonnative species can also alter the habitat for these two species by creating thatch that covers the bare ground and by using water resources that P. atropurpurea and T. californicum need for survival. Therefore, these species require micro-habitats free of nonnative, invasive competitors.

Poa atropurpurea is dioecious, meaning that individual plants of this species are either male or female. Individual male and female plants require an occupied meadow for successful, sexual reproduction to occur. Habitat invaded by nonnative species may not provide ideal growing conditions for P. atropurpurea or T. californicum due to competition for resources, and areas populated by T. officinale may result in hybridization with T. californicum (SBNF 2000, p. 40; SBNF 2002a, p. 114). Both species require a perennial water source, which exists in relatively intact, wet meadow systems (Service GIS database;

Eliason 2007b, p. 1).

Soils occupied by Poa atropurpurea have been characterized as loamy alluvial to sandy loam (CNDDB 2006a, pp. 1-21) that experience periodic saturation by water (Volgarino et al. 2000a, p. 1; Hirshberg 1994, p. 1). In a distribution study of P. atropurpurea, Krantz (1981, p. 8) noted that in San Bernardino County the species usually occurs in open

(50 percent bare ground) soils with some clay content in the A horizon

(0 to 12 inches (in) (0 to 30 centimeters (cm)). However, Krantz (1981, p. 8) also stated that the Laguna Meadow population in San Diego County had somewhat different habitat parameters than the populations in San

Bernardino County. Volgarino et al. (2000a, p.1) listed United States

Department of Agriculture (USDA) soil series for a partial list of meadows in which P. atropurpurea occurs in San Diego County as Lu

(loamy alluvial land) (Bowman 1973, p. 64), Rieff (Bowman 1973, pp. 72- 73), and Crouch (Bowman 1973, pp. 41-42). Volgarino et al. (2000a, p.1) listed USDA soil series for a partial list of meadows in which P. atropurpurea occurs in San Bernardino County as Morical (USDA 2004, p. 1), Hodgson (USDA 2005a, p. 1), Hecker (USDA 1997a, p. 1), Avawatz

(USDA 1978, p. 1), Oak Glen (USDA 2003, p. 1), Olete (USDA 1999a, p. 1), Goulding (USDA 1999b, p. 1), Pacifico

Page 47717

(USDA 2000b, p. 1), and Preston (USDA 1998, p. 1). The soil series descriptions cited above support the general ``loamy alluvial to sandy loam'' characterization of P. atropurpurea habitat soils (CNDDB 2006a, pp. 1-21).

Soils occupied by Taraxacum californicum appear similar to those occupied by Poa atropurpurea. Volgarino et al. (2000b, p.1) listed USDA soil series for a partial list of meadows in which T. californicum occurs as Morical (USDA 2004, p. 1), Hodgson (USDA 2005a, p. 1), Hecker

(USDA 1997a, p. 1), Pacifico (USDA 2000b, p. 1), Preston (USDA 1998, p. 1), Merkel (USDA 2005b), and Wapal (USDA 2005c, p. 1). Similar to P. atropurpurea, the soil series descriptions cited above also support a general ``loamy alluvial to sandy loam'' characterization of T. californicum habitat soils.

Both species appear to differ in their ability to colonize steeper slopes. Volgarino et al. (2000a, p. 2; 2000b, p. 2) described slopes on which Poa atropurpurea occurs as 0 to 16 percent (with potential for occurrence on steeper slopes), and slopes on which Taraxacum californicum occurs as 0 to 46 percent. This difference in maximum slope may be due to P. atropurpurea occurring farther from the banks of meadow water courses than T. californicum.

Primary Constituent Elements for Poa atropurpurea and Taraxacum californicum

Within the geographical area occupied by Poa atropurpurea and

Taraxacum californicum at the time of listing, we must identify the physical and biological features that may require special management considerations or protection. All areas designated as critical habitat for these two species are occupied, within the species' respective historical geographic ranges, and contain the PCEs in the appropriate quantity and spatial arrangement required to support at least one life history function. The range of parameters and information provided in the PCEs identified below has been generalized from existing scientific data. There may be cases where P. atropurpurea or T. californicum persist in conditions outside the ranges expressed in the PCEs. It is also important to note that the variable amounts and timing of precipitation in southern California do not result in favorable conditions for P. atropurpurea and T. californicum in every year.

Based on the above needs and our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we determined that the PCEs for Poa atropurpurea are:

(1) Wet meadows subject to flooding during wet years in the San

Bernardino Mountains in San Bernardino County at elevations of 6,700 to 8,100 feet (2,000 to 2,469 meters), and in the Laguna and Palomar

Mountains of San Diego County at elevations of 6,000 to 7,500 feet

(1,800 to 2,300 meters), that provide space for individual and population growth, reproduction, and dispersal; and

(2) Well-drained, loamy alluvial to sandy loam soils occurring in the wet meadow system, with a 0 to 16 percent slope, to provide water, air, minerals, and other nutritional or physiological requirements to the species.

Based on the above needs and our current knowledge of the life history, biology, and ecology of the species and the requirements of the habitat to sustain the essential life history functions of the species, we determined that the PCEs for Taraxacum californicum are:

(1) Wet meadows subject to flooding during wet years and forest openings with seeps, springs, or creeks in the San Bernardino Mountains in San Bernardino County located at elevations of 6,700 to 9,000 feet

(2,000 to 2,800 meters), that provide space for individual and population growth, reproduction, and dispersal; and

(2) Well-drained, loamy alluvial to sandy loam soils occurring in the wet meadow system or forest openings with seeps, springs, or creeks, with a 0 to 46 percent slope, to provide water, air, minerals, and other nutritional or physiological requirements to the species.

These designations are designed for the conservation of those areas containing the PCEs laid out in the appropriate quantity and spatial arrangement (the physical and biological features) necessary to support one or more of these species' life history functions. All units in these designations contain the physical and biological features and support multiple life processes.

Special Management Considerations or Protection

When designating critical habitat, we assess whether the areas occupied at the time of listing contain the features essential to the conservation of the species that may require special management considerations or protection. Major threats to Poa atropurpurea and

Taraxacum californicum, and, therefore, to the features essential to their conservation, include development on private lands, grazing, off- highway vehicle (OHV) use, road maintenance activities, ground disturbance that affects surface hydrology, mining activities, recreational activities, habitat fragmentation, and the invasion of nonnative herbaceous plants. Please refer to the unit descriptions in the ``Final Critical Habitat Designations'' section for further discussion of special management considerations or protection of the physical and biological features related to geographically specific threats to P. atropurpurea and T. californicum.

Special management considerations or protection of the wet meadows may be needed to address concerns such as reducing nonnative plant invasions and maintaining populations. Control and monitoring of nonnative, invasive plant species may be required to maintain wet meadows and or forest openings such that they can continue to support populations of Poa atropurpurea and or Taraxacum californicum.

Nonnative species alter the meadow habitat by creating mats of thatch which cover bare ground needed for P. atropurpurea and T. californicum to become established, and also use water resources that could be used by P. atropurpurea and T. californicum. The growth of nonnative species may adversely impact and change the physical and biological features of the meadow habitat. Implementing management actions that support fertilization and seed set of P. atropurpurea (Curto 1992, p. 11;

Soreng 2000, pp. 1-4), and provide monitoring and protection of male P. atropurpurea clones may be required to maintain populations of P. atropurpurea.

Special management considerations or protections for wet meadow habitat may need to be implemented to control the impacts associated with direct competition and hybridization caused by the nonnative

Taraxacum officinale. This nonnative species occupies open niches, which can reduce the bare ground needed for T. californicum to become established, and may alter the physical and biological features of the meadow habitat. Management may include the removal of T. officinale from montane meadows where this species co-occurs with T. californicum.

Additionally, it may be appropriate to remove hybridized individuals; however, we believe this course of action warrants further investigation.

There are two USFS management guides that address conservation of

Poa atropurpurea and Taraxacum californicum: (1) The CNF Habitat

Management Guide for the Sensitive

Page 47718

Plant Species: Delphinium hesperium ssp. cuyamacae, Lilium parryi,

Limnanthes gracilis var. parishii, and P. atropurpurea, in Riparian

Montane Meadows (CNF 1991, pp. 1-36) addresses conservation of P. atropurpurea; and (2) the SBNF Meadow Habitat Management Guide (SBNF 2002a pp. 1-155) addresses conservation of both species. In some cases, significant management actions have been implemented by the USFS (for example, cattle exclosures in Laguna Meadow (CNF 1991, p. 17), recreational trail closures in Belleville Meadow near Big Bear Lake

(SBNF 2002a, p. 5)).

Criteria Used To Identify Critical Habitat

We are designating critical habitat in areas that we determined were occupied at the time of listing and that contain sufficient primary constituent elements (PCEs) laid out in the appropriate quantity and spatial arrangement (the physical and biological features) to support life history functions essential for the conservation of Poa atropurpurea and Taraxacum californicum. We did not designate unoccupied areas for these two species because we believe that the areas designated are adequate to ensure the conservation of these species through appropriate conservation measures, such as the removal of invasive species, the protection and restoration of the hydrology in occupied meadows, and the reduction of negative human impacts in occupied habitat (for details on management actions see the ``Special

Management Considerations and Protection'' section). To delineate critical habitat, we identified habitat that contains features essential to the conservation of P. atropurpurea and T. californicum, was occupied at the time of listing, and is currently occupied.

Occupancy status was determined using occurrence data from the SBNF

(SBNF 2000, pp. 5-137; SBNF 2002a, pp. 1-133; SBNF GIS database), the

CNDDB (2005a, pp. 1-21; 2005b, pp. 1-39), and the Rancho Santa Ana

Botanical Gardens (Denslow et al. 2002, pp. 12 and 13). We determined occupancy at the time of listing by comparing survey and collection information to descriptions of occupied areas in the final listing rule published in the Federal Register on September 14, 1998 (63 FR 49006).

Using the occurrence data listed above, we identified montane meadows that were occupied by one or both species. Areas containing a large number of individual plants (relative to all known occupied locations) recorded within at least 2 years of listing were considered to be occupied at the time of listing as the presence of a large number of individual plants within an area indicates that such area has likely been occupied for more than 2 years. Although occupied, we did not consider any meadows containing 10 or fewer reported individuals of either species for critical habitat, as these populations are likely to become extirpated and we believe these populations are not likely to contribute to the long-term conservation of either species.

Subsequently, we used the following rule set to identify areas for inclusion in the final critical habitat designation for each species:

(1) we identified meadows with populations of 10 plants or greater (as discussed above) and delineated the meadow habitat using the USFS- modeled potential habitat specific to each species (Volgarino et al. 2000a, pp. 1-2; 2000b, pp. 1-2) and aerial or satellite imagery; (2) we delineated the meadow areas that appeared to appropriately capture features essential to the conservation of each species (PCEs); (3) we limited the delineation of critical habitat for each unit to areas within 328 ft (100 meters) of the occupied meadow habitat, a distance viewed as the limit for short-distance, wind-driven dispersal of seeds in Taraxacum spp. (Tackenberg et al. 2003, p. 451), and a likely distance for potential dispersal distance for Poa atropurpurea; and (4) as a final step, we removed any meadow habitat that was developed or degraded that is not likely to contain PCEs, or elements of them, to ensure critical habitat contains features essential to the conservation of each of the species.

Although we are not designating all known occurrences of either of these two plants, we believe that our criteria, and therefore the designations, are adequate to ensure the conservation of both species throughout their extant ranges and the essential features of their habitat, based on the best available information at this time. Species and plant communities that are protected across their ranges are expected to have lower likelihoods of extinction (Soul[eacute] and

Simberloff 1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); our criteria identified multiple locations across the entire range of each species as essential habitat to prevent range collapse. Genetic variation in plants can result from the effects of population isolation and adaptation to locally distinct environments (Lesica and Allendorf 1995, pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt, pp. 291- 295). Our critical habitat contains areas that represent the biogeographical diversity for each of these species. For Poa atropurpurea, we captured habitat in the northern portion of the species range, where the species occurs at high altitudes, and at the southern portion of the species range, where the species occurs at lower altitudes. For Taraxacum californicum, we captured areas that represent the entire range of this species. We included areas specifically in Big Bear Valley because this location is believed to be the historic core area for both of these species (Soreng 2007, p. 1-2).

The areas we included represent the largest populations that still occur for these two species. We did not include areas where we do not have data on occupancy or where populations smaller than 10 plants occur.

When determining critical habitat boundaries for each species within this final rule, we made every effort to avoid including developed areas such as lands covered by buildings, pavement, and other structures because such lands lack PCEs for Poa atropurpurea and

Taraxacum californicum. The scale of maps we prepared under the parameters for publication within the Code of Federal Regulations may not reflect the exclusion of such developed lands. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final rule have been excluded by text in this rule and are not designated as critical habitat. Therefore, Federal actions involving these textually excluded lands would not trigger section 7 consultations, with respect to critical habitat and the requirement of no adverse modification, unless the specific action may affect the primary constituent elements in adjacent critical habitat.

Final Critical Habitat Designations

We are designating approximately 2,489 ac (1,009 ha) of critical habitat for Poa atropurpurea in 8 units (see Table 1 below) and approximately 1,914 ac (775 ha) of critical habitat for Taraxacum californicum in 11 units (see Table 2 below). Five of these units overlap and are designated as critical habitat for both species (Units 2, 3, 4, 5, and 11; see Table 3 and unit descriptions below). The critical habitat areas described below constitute our best current assessment of areas that meet the definition of critical habitat for P. atropurpurea and T. californicum. We determined that all areas designated as critical habitat for P. atropurpurea and T. californicum were occupied at the time of listing and are currently occupied.

Page 47719

TABLE 1--Critical Habitat Units Excluded and Designated for Poa atropurpurea. (Area estimates reflect all land within critical habitat unit boundaries.)

Critical Habitat Unit

Land Ownership \1\

Area Excluded (Acres (Hectares))

Area Designated (Acres (Hectares))

1 Pan Hot Springs Meadow

SBNF

0 (0)

0 (0)

Private (BBCCSD,

40 (16)

0 (0) others).

2 North Baldwin Meadow

SBNF

0 (0)

79 (33)

CDFG.................

0 (0)

98 (40)

Private..............

0 (0)

1 (Can be implemented in a manner consistent with the intended purpose of the action,

Can be implemented consistent with the scope of the

Federal agency's legal authority and jurisdiction,

Are economically and technologically feasible, and

Would, in the Director's opinion, avoid jeopardizing the continued existence of the listed species or destroying or adversely modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project modifications to extensive redesign or relocation of the project. Costs associated with implementing a reasonable and prudent alternative are similarly variable.

Regulations at 50 CFR 402.16 require Federal agencies to reinitiate consultation on previously reviewed actions in instances where we have listed a new species or subsequently designated critical habitat that may be affected and the Federal agency has retained discretionary involvement or control over the action (or the agency's discretionary involvement or control is authorized by law). Consequently, Federal agencies may sometimes need to request reinitiation of consultation with us on actions for which formal consultation has been completed, if those actions with discretionary involvement or control may affect subsequently listed species or designated critical habitat.

Federal activities that may affect Poa atropurpurea, Taraxacum californicum, or the designated critical habitat for either of these two species will require section 7(a)(2) consultation under the Act.

Activities on State, Tribal, local, or private lands requiring a

Federal permit (such as a permit from the U.S. Army Corps of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under section 10 of the Act) or involving some other

Federal action (such as funding from the Federal Highway

Administration, Federal Aviation Administration, or the Federal

Emergency Management Agency) are examples of agency actions are subject to the section 7(a)(2) consultation process. Federal actions not affecting listed species or critical habitat, and actions on State,

Tribal, local, or private lands that are not federally funded, authorized, or permitted, do not require section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

Decisions by the 5th and 9th Circuit Courts of Appeals have invalidated our definition of ``destruction or adverse modification''

(50 CFR 402.02) (see Gifford Pinchot Task Force v. U.S. Fish and

Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and Sierra Club v.

U.S. Fish and Wildlife Service et al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, the key factor related to the adverse modification determination is whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional to serve its intended conservation role for the species. Activities that may destroy or adversely modify critical habitat are those that alter PCEs to an extent that appreciably reduces the conservation value of critical habitat for Poa atropurpurea or Taraxacum californicum. Generally, the conservation role of the critical habitat units designated for these species is to support native occurrences of P. atropurpurea and T. californicum that comprise viable core area populations.

Section 4(b)(8) of the Act requires us to briefly evaluate and describe in any proposed or final regulation that designates critical habitat, activities involving a Federal action that may destroy or adversely modify such habitat, or that may be affected by such designation.

Activities that, when carried out, funded, or authorized by a

Federal agency, may affect critical habitat and therefore should result in consultation for Poa atropurpurea or Taraxacum californicum include, but are not limited to (please see the ``Special Management

Considerations or Protection'' section for a more detailed discussion on the impacts of these actions to the listed species):

(1) Actions that result in ground disturbance to meadows. Such activities could include (but are not limited to) residential or recreational development, OHV activity, dispersed recreation, new road construction or widening, existing road maintenance, and grazing. These activities could cause direct mortality of Poa atropurpurea or

Taraxacum californicum and impact meadows by damaging or eliminating habitat, altering soil composition due to

Page 47725

increased erosion, and increasing densities of nonnative plant species.

Additionally, changes in soil composition may lead to cascading changes in the vegetation composition, such as growth of shrub cover that decreases density of or eliminates P. atropurpurea or T. californicum.

(2) Actions that result in alteration of the hydrological regime of the wet meadow habitat. Such activities could include residential or recreational development adjacent to meadows, OHV activity, dispersed recreation, new road construction or widening, and existing road maintenance. These activities could alter surface layers and hydrological regime in a manner that promotes loss of soil matrix components and moisture necessary to support the growth and reproduction of Poa atropurpurea or Taraxacum californicum.

(3) Actions that would disturb the existing vegetation communities within the meadow habitat prior to annual pollination and seed set

(reproduction). Such activities could include (but are not limited to) grazing, mowing, grading, or discing habitat in the spring and early summer months. These activities could alter the habitat for Poa atropurpurea and Taraxacum californicum and result in decreased reproduction.

Exclusions

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

Section 4(b)(2) of the Act states that the Secretary shall designate and revise critical habitat on the basis of the best available scientific data after taking into consideration the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude an area from critical habitat if he determines that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines, based on the best scientific data available, that the failure to designate such area as critical habitat will result in the extinction of the species.

In making that determination, the legislative history is clear that the

Secretary has broad discretion regarding which factor(s) to use and how much weight to give to any factor. In the following sections, we address a number of general issues that are relevant to the exclusions we considered.

Additionally, we conducted an economic analysis of the impacts of the proposed critical habitat designations and related factors

(referred to here as the draft EA). The draft EA (April 9, 2008) was made available for public review and comment from April 16, 2008, to

May 16, 2008 (73 FR 20600). The draft EA was finalized to incorporate the revisions made to the proposed critical habitat designations (see

``Summary of Changes from the Proposed Rule'' section). Based on the draft EA, the proposed critical habitat designations, and the information in this final rule, we excluded the area within Unit 1 (as defined in this final rule) from the critical habitat designations under the provisions of section 4(b)(2) of the Act and our implementing regulations at 50 CFR 424.19.

Benefits of Designating Critical Habitat

The process of designating critical habitat as described in the Act requires that the Service identify those lands on which are found the physical or biological features essential to the conservation of the species that may require special management considerations or protection, and those areas outside the geographical area occupied by the species at the time of listing that are essential for the conservation of the species. In identifying those lands, the Service must consider the recovery needs of the species, such that, on the basis of the best scientific and commercial data available at the time of designation, the habitat that is identified, if managed, could provide for the survival and recovery of the species.

The designation of critical habitat can be beneficial because it identifies lands to be managed for the recovery of a species. The process of proposing and finalizing a critical habitat rule provides the Service with the opportunity to determine the physical or biological features essential to the conservation of the species within the geographical area occupied by the species at the time of listing, as well as to determine other areas essential for the conservation of the species. The designation process includes peer review and public comment on the identified features and areas. This process is valuable to land owners and managers in developing conservation management plans for identified areas, as well as any other occupied habitat or suitable habitat that may not have been included in the Service's determination of essential habitat.

The consultation provisions under section 7(a)(2) of the Act constitute the regulatory benefits of critical habitat. As discussed above, Federal agencies must consult with us on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. Federal agencies must also consult with us on actions that may affect a listed species and must refrain from undertaking actions that are likely to jeopardize the continued existence of the species. Thus, the analysis of effects to critical habitat is a separate and different analysis from that of the effects to the species. Therefore, the difference in outcomes of these two analyses represents the regulatory benefit of critical habitat. For some species, and in some locations, the outcome of these analyses will be similar, because effects on habitat will often result in effects on the species. However, the regulatory standard is different: the jeopardy analysis looks at the action's impact on survival and recovery of the species, while the adverse modification analysis looks at the action's effects on the designated habitat's contribution to the species' conservation. This will, in many instances, lead to different results and different regulatory requirements.

There are two limitations to the regulatory effect of critical habitat. First, a consultation is required only where there is a

Federal nexus (an action authorized, funded, or carried out by any

Federal agency), if there is no Federal nexus, designation itself does not restrict actions that destroy or adversely modify critical habitat.

Second, the designation only limits destruction or adverse modification. By its nature, the prohibition on adverse modification is designed to ensure that the conservation role and function of those areas that contain the physical and biological features essential to the conservation of the species or of unoccupied areas that are essential for the conservation of the species are not appreciably reduced. Critical habitat designation alone, however, does not require property owners to undertake affirmative actions to promote the recovery of the species.

Once an agency determines that consultation under section 7(a)(2) of the Act is necessary, the process may conclude informally when we concur in writing that the proposed Federal action is not likely to adversely affect critical habitat. However, if we determine through informal consultation that adverse impacts are likely to occur, then we would initiate formal consultation, which would conclude when we issue a biological opinion on whether the proposed Federal action is likely to result in destruction or adverse modification of critical habitat.

For critical habitat, a biological opinion that reaches a ``no destruction or adverse modification'' determination may contain discretionary conservation recommendations to minimize adverse

Page 47726

effects to primary constituent elements, but it would not suggest the implementation of any reasonable and prudent alternative. We suggest reasonable and prudent alternatives to the proposed Federal action only when our biological opinion results in an adverse modification conclusion.

As stated above, the designation of critical habitat does not require that any management or recovery actions take place on the lands included in the designation. Even in cases where consultation has been initiated under section 7(a)(2) of the Act, the purpose of consultation is to avoid jeopardy to the species and adverse modification of its critical habitat, but not specifically to manage critical habitat or institute recovery actions on critical habitat. Conversely, voluntary conservation efforts implemented through management plans generally institute proactive actions to remove or reduce known threats to a species or its habitat. We believe that in many instances the benefit to a species or its habitat realized through the designation of critical habitat is low when compared to the conservation benefit that can be achieved through voluntary conservation efforts or management plans. The conservation achieved through implementing HCPs or other habitat management plans can be greater than what we achieve through multiple site-by-site, project-by-project, section 7(a)(2) consultations involving consideration of critical habitat. Management plans may commit resources to implement long-term management and protection to particular habitat for at least one and possibly additional listed or sensitive species. Section 7(a)(2) consultations commit Federal agencies to preventing adverse modification of critical habitat caused by the proposed action only, and not to providing conservation or long-term benefits to areas not affected by the proposed action. Thus, implementation of any HCP or management plan that considers enhancement or recovery as the management standard may often provide as much or more benefit than a consultation for critical habitat designation.

Another benefit of including lands in critical habitat is that designation of critical habitat serves to educate landowners, State and local governments, and the public regarding the potential conservation value of an area. This helps focus and promote conservation efforts by other parties by clearly delineating areas ofhigh conservation value for the listed species. In general, critical habitat designation always has educational benefits; however, in some cases, they may be redundant with other educational effects. For example, HCPs have significant public input and may largely duplicate the educational benefits of a critical habitat designation. Including lands in critical habitat also would inform State agencies and local governments about areas that could be conserved under State laws or local ordinances.

Conservation Partnerships on Non-Federal Lands

Most federally listed species in the United States will not recover without cooperation of non-Federal landowners. More than 60 percent of the United States is privately owned (National Wilderness Institute 1995), and at least 80 percent of endangered or threatened species occur either partially or solely on private lands (Crouse et al. 2002).

Stein et al. (1995) found that only about 12 percent of listed species were found almost exclusively on Federal lands (90 to 100 percent of their known occurrences restricted to Federal lands) and that 50 percent of federally listed species are not known to occur on Federal lands at all.

Given the distribution of listed species with respect to land ownership, conservation of listed species in many parts of the United

States is dependent upon working partnerships with a wide variety of entities and the voluntary cooperation of many non-Federal landowners

(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building partnerships and promoting voluntary cooperation of landowners are essential to our understanding the status of species on non-Federal lands, and necessary for us to implement recovery actions such as reintroducing listed species and restoring and protecting habitat.

Many non-Federal landowners derive satisfaction from contributing to endangered species recovery. We promote these private-sector efforts through the Department of the Interior's Cooperative Conservation philosophy. Conservation agreements with non-Federal landowners (HCPs, safe harbor agreements, other conservation agreements, easements, and

State and local regulations) enhance species conservation by extending species protections beyond those available through section 7 consultations. In the past decade, we have encouraged non-Federal landowners to enter into conservation agreements, based on the view that we can achieve greater species conservation on non-Federal land through such partnerships than we can through regulatory methods (61 FR 63854; December 2, 1996).

Many private landowners, however, are wary of the possible consequences of attracting endangered species to their property.

Mounting evidence suggests that some regulatory actions by the Federal government, while well-intentioned and required by law, can (under certain circumstances) have unintended negative consequences for the conservation of species on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a decline in their property value due to real or perceived restrictions on land-use options where threatened or endangered species are found. Consequently, harboring endangered species is viewed by many landowners as a liability. This perception results in anti-conservation incentives, because maintaining habitats that harbor endangered species represents a risk to future economic opportunities (Main et al. 1999; Brook et al. 2003).

According to some researchers, the designation of critical habitat on private lands significantly reduces the likelihood that landowners will support and carry out conservation actions (Main et al. 1999; Bean 2002; Brook et al. 2003). The magnitude of this outcome is greatly amplified in situations where active management measures (such as reintroduction, fire management, control of invasive species) are necessary for species conservation (Bean 2002). We believe that the judicious exclusion of specific areas of non-federally owned lands from critical habitat designations can contribute to species recovery and provide a superior level of conservation in those areas.

The purpose of designating critical habitat is to contribute to the conservation of threatened and endangered species and the ecosystems upon which they depend. The outcome of the designation, triggering regulatory requirements for actions funded, authorized, or carried out by Federal agencies under section 7(a)(2) of the Act, can sometimes be counterproductive to its intended purpose on non-Federal lands. Thus the benefits of excluding areas that are covered by effective partnerships or other voluntary conservation commitments can often be high.

Benefits of Excluding Lands With HCPs or Other Approved Management

Plans

The benefits of excluding lands with HCPs or other approved long- term management plans from critical habitat

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designation include relieving landowners, communities, and counties of any additional regulatory burden that might be imposed by critical habitat. Many conservation plans provide conservation benefits to unlisted sensitive species as well as to listed species. Imposing an additional regulatory review as a result of the designation of critical habitat may undermine conservation efforts and discourage partnerships in many areas. Designation of critical habitat within the boundaries of management plans that provide conservation measures for a species could be viewed as a disincentive to entities currently developing these plans or contemplating them in the future, because one of the incentives for undertaking conservation is greater ease of permitting where listed species will be affected. Addition of a new regulatory requirement would remove a significant incentive for undertaking the time and expense of management planning.

A related benefit of excluding lands within approved HCPs and management plans from critical habitat designation is the unhindered, continued ability it gives us to seek new partnerships with future plan participants, including States, counties, local jurisdictions, conservation organizations, and private landowners, which together can implement conservation actions that we would be unable to accomplish otherwise. Designating lands within approved management plan areas as critical habitat (such as the HMP as described in the ``Summary of

Changes From Proposed Rule'' section) would likely have a negative effect on our ability to establish new partnerships to develop these plans, particularly plans that address landscape-level conservation of species and habitats. By excluding these lands, we preserve our current partnerships and encourage additional conservation actions in the future.

Furthermore, both HCPs and Natural Communities Conservation Plan

(NCCP)-HCP applications require consultation, which would review the effects of all HCP-covered activities that might adversely impact the species under a jeopardy standard, including possibly significant habitat modification (see definition of ``harm'' at 50 CFR 17.3), even without the critical habitat designation. In addition, all other

Federal actions that may affect the listed species would still require consultation under section 7(a)(2) of the Act, and we would review these actions for possibly significant habitat modification in accordance with the definition of harm referenced above.

The information provided in the previous section applies to all the following discussions of benefits of inclusion or exclusion of critical habitat.

Economic Analysis

Following the publication of the proposed critical habitat designations, we conducted an economic analysis to estimate the potential economic effect of the designations. The draft analysis

(dated April 9, 2008) was made available for public review on April 16, 2008 (73 FR 20600). We accepted comments on the draft analysis until

May 16, 2008. The final analysis (final EA) of the potential economic effects of the designations was developed by considering the public comments and the revisions to the proposed critical habitat designations (see ``Summary of Changes from the Proposed Rule'' section).

The primary purpose of the economic analysis is to estimate the potential economic impacts associated with the designations of critical habitat for Poa atropurpurea and Taraxacum californicum. This information is intended to assist the Secretary in making decisions about whether the benefits of excluding particular areas from the designation outweigh the benefits of including those areas in the designation. The analysis looks retrospectively at baseline impacts incurred since the species were listed (63 FR 49006, September 14, 1998), and forecasts both baseline and incremental impacts likely to occur after the designation of critical habitat. It also addresses distribution of impacts, including an assessment of the potential effects on small entities and the energy industry. This information can be used by the Secretary to assess whether the effects of the designations might unduly burden a particular group or economic sector.

The economic analysis focuses on the direct and indirect costs of the rule. However, economic impacts to land use activities can exist in the absence of critical habitat. These impacts may result from, for example, local zoning laws, State and natural resource laws, and enforceable management plans and best management practices applied by other State and Federal agencies. Economic impacts that result from these types of protections are not included in the analysis as they are considered to be part of the regulatory and policy baseline.

The economic analysis examines activities taking place both within and adjacent to the designations. It estimates impacts based on activities that are ``reasonably foreseeable'' including, but not limited to, activities that are currently authorized, permitted, or funded, or for which proposed plans are currently available to the public. Accordingly, the analysis bases estimates on activities that are likely to occur within a 20-year time frame, from when the proposed rule became available to the public (August 7, 2007, 72 FR 44232). The 20-year time frame was chosen for the analysis because, as the time horizon for an economic analysis is expanded, the assumptions on which the projected number of projects and cost impacts associated with those projects become increasingly speculative.

Based on our analysis, we concluded that the designations of critical habitat for Poa atropurpurea and Taraxacum californicum would not result in significant economic impacts. The total future potential economic impact is estimated to be $129,000 to $4.3 million ($11,000 to

$403,000 annualized) over the next 20 years in present value terms applying a 7 percent discount rate. The present value of these impacts, applying a 3 percent discount rate, is $135,000 to $5.0 million ($9,000 to $336,000 annualized). Impacts associated with recreation represent the largest proportion of post-designation incremental impacts (solely attributable to the designations of critical habitat), accounting for over 86 percent of forecast incremental impacts in the areas being designated as critical habitat when a 7 percent discount rate is used.

Transportation-related incremental impacts account for approximately 14 percent of forecast incremental impacts when a 7 percent discount rate is used. The BBCCSD is expected to account for over 86 percent of the total anticipated upper-bound incremental impacts, while Caltrans is forecast to bear approximately 14 percent of these impacts when a 7 percent discount rate is used. The remaining incremental impacts are shared between the USFS, the Federal Highway Administration), and the

Service, in order of magnitude. Unit 1, Pan Hot Springs Meadow, primarily owned by Big Bear City Community Services District (BBCCSD), is anticipated to account for approximately 88 percent of total upper- bound incremental impacts of the designation for both species, followed by Unit 2 bearing almost 12 percent of these impacts when a 7 percent discount rate is used. We have excluded Unit 1, the unit with a disproportionate amount of the possible economic impacts; therefore, we do not find the economic costs to be significant as they relate to the designated critical habitat

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(see ``Exclusions Under Section 4(b)(2) of the Act'' section).

The final economic analysis is available at http:// www.regulations.gov and http://www.fws.gov/carlsbad or upon request from the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

At the request of the USFS, we evaluated the appropriateness of excluding Forest Service lands from the final designations of critical habitat for Poa atropurpurea and Taraxacum californicum under section 4(b)(2) of the Act based on management provided for federally listed species, including P. atropurpurea and T. californicum, under the USFS

Land Management Plan and associated 2002 Meadow Habitat Management

Guide (SBNF 2002a), and the 1991 Habitat Management Guide for the

Sensitive Plant Species in Riparian Montane Meadows (CNF 1991). As indicated in our response to Comment 14 in the ``Public Comments'' section above, we have concluded based on the record before us not to exclude the Forest Service lands in this instance. Therefore, as previously discussed, we are designating approximately 1,788 ac (724 ha) of Forest Service lands in Units 2, 3, 4, 5, 11, 13, 14, and 15 as critical habitat for P. atropurpurea and 1,344 ac (544 ha) of Forest

Service lands in Units 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 as critical habitat for T. californicum.

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

We have considered and are excluding approximately 40 ac (16 ha) of non-Federal lands in Unit 1 (Pan Hot Springs) that are owned by the

BBCCSD and the adjacent Pan Hot Spring landowner from the critical habitat designations for Poa atropurpurea and Taraxacum californicum under section 4(b)(2) of the Act. A detailed analysis of our exclusion of these lands under section 4(b)(2) of the Act is provided in the paragraphs below.

Benefits of Inclusion--Pan Hot Springs Meadow

The inclusion of the approximately 40 ac (16 ha) of Unit 1 could be beneficial because it identifies lands to be managed for the recovery of the two species. As discussed previously in this rule, the process of proposing and finalizing a critical habitat designation is valuable to landowners and managers for use in developing conservation management plans for identified areas, as well as any other occupied habitat or suitable habitat that may not have been included in the

Service's determination of essential habitat. However, plant conservation efforts with the landowners in Unit 1 have already been ongoing for many years before the critical habitat was proposed. The

BBCCSD has been actively involved in listed plant conservation.

The educational benefits of designation are small and largely redundant to those derived through conservation efforts currently being planned and implemented in Unit 1. The process of developing the HMP has involved several partners including the public and local government representatives, the University of Redlands, the San Manuel Band of

Serrano Mission Indians, Federal agencies, and private landowners.

Additionally, the HMP includes implementation of an environmental education program to promote public understanding and appreciation of the natural and cultural resources in Pan Hot Springs Meadow.

Therefore, the educational benefits of designating the private lands in

Unit 1 (Pan Hot Springs Meadow) as critical habitat are minimal.

The consultation provisions under section 7(a)(2) of the Act constitute the regulatory benefits of inclusion for critical habitat.

As discussed above, Federal agencies must consult with us on actions that may affect critical habitat and must avoid destroying or adversely modifying critical habitat. However, the 40 ac (16 ha) being excluded are on private property, with no expected Federal nexus for activities that may affect Poa atropurpurea and Taraxacum californicum. Therefore, including this area in the critical habitat designations is unlikely to result in any benefits to the species that may be derived through consultation under section 7(a)(2) of the Act.

Benefits of Exclusion--Pan Hot Springs Meadow

The BBCCSD has worked cooperatively as a partner with the Service for more than 18 years. In 1990, the BBCCSD worked with the Service and

California Department of Fish and Game (CDFG) to plan and place an approximate 10-ac (4-ha) deed restriction over part of their property in Pan Hot Springs Meadow to protect federally listed plants. In

January 2008, BBCCSD and the adjacent private landowner, who owns less than 1 ac (

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