Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Least Bell's Vireo

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AA95

Endangered and Threatened Wildlife and Plants; Designation of

Critical Habitat for the Least Bell's Vireo

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) designates critical

habitat for the least Bell's vireo (Vireo bellii pusillus), an

endangered species, pursuant to the Endangered Species Act of 1973, as

amended (Act). This designation encompasses a total of about 38,000

acres at 10 localities in portions of 6 counties in southern

California. This designation results in additional protection

requirements under section 7 of the Act for activities that are funded,

authorized, or carried out by a Federal agency. The Service has

considered economic and other relevant impacts in making a final

decision on the size and scope of critical habitat.

EFFECTIVE DATE: March 4, 1994.

.ADDRESSES: The complete file for this rule is available for

inspection, by appointment, during normal business hours at the U.S.

Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue

West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Larry Salata or Loren Hays, Fish and

Wildlife Biologists, (see ADDRESSES section) at 619/431-9440.

SUPPLEMENTARY INFORMATION:

Background

Introduction

The Act requires the Service to designate critical habitat to the

maximum extent prudent and determinable concurrently with listing a

species as endangered or threatened. On November 8, 1979, the Service

received a petition from James M. Greaves to list the Arizona (V. b.

arizonae) and least Bell's vireos as endangered. A notice of acceptance

of the petition and status review was published on February 6, 1980 (45

FR 8030). Based on the best scientific and commercial data available

and comments submitted during the status review, the Service found that

the petitioned action was warranted for the least Bell's vireo on

October 13, 1983 (49 FR 2485, January 20, 1984); however, a listing

action was precluded by other pending listing actions of higher

priority, in accordance with section 4(b)(3)(C)(i) of the Endangered

Species Act of 1973 (Act), as amended (16 U.S.C. 1531 et seq.). Section

4(b)(3)(C)(i) recycles such petitions, resulting in a new finding

deadline of October 13, 1984. A finding was made on October 12, 1984,

that this action was still warranted but precluded. The Service

published a proposed rule to determine the least Bell's vireo to be an

endangered species, and to designate critical habitat for the species

on May 3, 1985 (50 FR 18968). This proposed rule constituted the next

finding required under section 4(b)(3)(B)(ii) of the Act. A correction

to some of the legal descriptions of the proposed critical habitat was

published in the June 4, 1985, Federal Register (50 FR 23458). Rather

than delay protected status for the vireo while the economic analysis

that must accompany the final rule designating critical habitat was

being prepared, the Service decided to make final only the listing

portion of the rule to provide the Act's protection to the least Bell's

vireo. Section 4(b)(6)(c)(ii) of the Act allows the Service to postpone

designation of critical habitat for up to 12 months. On May 2, 1986,

the vireo was listed as endangered and the comment period on proposed

designation of critical habitat was reopened for an additional 90 days

(51 FR 16483). A further extension of the comment period to January 1,

1987, was published on July 31, 1986 (51 FR 27429). A revised proposed

rule was published on August 7, 1992 (57 FR 34892) at which time the

public comment period was reopened for 90 days.

Definition of Critical Habitat

Critical habitat is defined in section 3(5)(A) of the Act as: (i)

The specific areas within the geographical area occupied by a species

on which are found those physical or biological features (I) essential

to the conservation of the species and (II) that may require special

management considerations or protection, and (ii) specific areas

outside the geographical area occupied by a species at the time it is

listed, upon determination that such areas are essential for the

conservation of the species. Section 3(5)(C) further indicates that in

most cases, critical habitat should not encompass the entire

geographical area that can be occupied by the species.

Role in Species Conservation

The term ``conservation,'' as defined in section 3 of the Act,

means to use and the use of all methods and procedures which are

necessary to bring an endangered species or threatened species to the

point at which the measures provided pursuant to this Act are no longer

necessary (i.e., the species has recovered).

The definition of critical habitat, while explicitly mentioning the

features essential to conservation of a species, implicitly requires

that the areas themselves be essential to the species' survival and

recovery. Not all areas containing those features of a listed species'

habitat are necessarily essential to its conservation. Conversely,

areas not currently containing all of the essential features, but with

the capability to do so in the future, may be designated as critical

habitat. However, areas not included in critical habitat that contain

one or more of the essential features are also important to the

species' conservation and would be addressed under other facets of the

Act and other conservation laws and regulations.

Relationship to Recovery

Section 2(c)(1) of the Act declares that all Federal departments

and agencies shall seek to conserve endangered and threatened species

and shall utilize their authorities in furtherance of the purposes of

the Act. Section 3(3) of the Act defines conservation to include all

measures needed to recover the species and justify its removal from the

list of endangered and threatened wildlife and plants. The Act mandates

the conservation of listed species through different mechanisms, such

as: Section 7 (requiring Federal agencies to further the purposes of

the Act by carrying out conservation programs and insuring that Federal

actions will not likely jeopardize the continued existence of the

listed species or result in the destruction or adverse modification of

designated critical habitat); section 9 (prohibition of taking of

listed animal species); section 10 (wildlife research permits and

conservation planning on State and private lands); section 6

(cooperative State and Federal grants); land acquisition; and research.

Recovery planning under section 4(f) of the Act is the ``umbrella''

that eventually guides all of these activities and promotes a species'

conservation and eventual delisting. Recovery plans provide guidance,

which may include population goals and identification of areas in need

of protection or special management, so that a species can be removed

from the list of endangered and threatened wildlife and plants.

Recovery plans usually include management recommendations for areas

proposed or designated as critical habitat.

The Service considers the conservation of a species in its

designation of critical habitat. The designation of critical habitat

will not, in itself, lead to the recovery of the species, but is one of

several measures available to contribute to the conservation of a

species. Critical habitat helps focus conservation activities by

identifying areas that contain essential habitat features (primary

constituent elements) that may require special management. The

protection given critical habitat under section 7 also immediately

increases the protection given to these primary constituent elements

and essential areas and preserves options for the long-term

conservation of the species. The protection of these areas may also

shorten the time needed to achieve recovery.

Designating critical habitat does not create a management plan; it

does not establish numerical population goals; it does not prescribe

specific management actions (inside or outside of critical habitat);

and it has no direct effect on areas not designated. Specific

management recommendations for critical habitat are more appropriately

addressed in recovery plans and in section 7 consultation. Areas

outside of critical habitat also have an important role in the

conservation of a listed species that is not addressed through

designation of critical habitat.

The designation of critical habitat may be reevaluated and revised

at any time that new information indicates that changes are warranted.

The Service will reassess proposals for designation of critical habitat

if land management plans, recovery plans, or other conservation

strategies are developed and fully implemented that may reduce the need

for the additional protection provided by any critical habitat

designation.

Primary Constituent Elements

The Service is required to base critical habitat designations on

the best scientific data available (50 CFR 424.12). In determining what

areas are to be designated as critical habitat, the Service considers

those physical and biological attributes that are essential to the

conservation of the species and that may require special management

considerations or protection. Such requirements, as stated in 50 CFR

424.12, include, but are not limited to, the following:

Space for individual and population growth, and for

normal behavior;

Food, water, or other nutritional or physiological

requirements;

Cover or shelter;

Sites for breeding, reproduction, rearing of offspring;

and generally; and

Habitats that are protected from disturbance or are

representative of the historic geographical and ecological

distribution of a species.

The Service has determined that the physical and biological

habitat features (referred to as the primary constituent elements)

that support feeding, nesting, roosting and sheltering are essential

to the conservation of the least Bell's vireo. These habitat

features can be described as riparian woodland vegetation that

generally contains both canopy and shrub layers, and includes some

associated upland habitats. Vireos meet their survival and

reproductive needs (food, cover, nest sites, nestling and fledgling

protection) within the riparian zone in most areas. In some areas

they also forage in adjacent upland habitats.

Ecological Considerations

The least Bell's vireo is a small gray migratory songbird that has

declined dramatically in both numbers and distribution. This subspecies

was once widespread and abundant throughout the Central Valley and

other low elevation riverine areas of California. Least Bell's vireos

historically bred in riparian woodlands from the interior of northern

California (near Red Bluff, Tehama County) to northwestern Baja

California, Mexico. Its current breeding distribution is restricted to

a few localities in southern California and northwestern Baja

California, Mexico (Franzreb 1989).

Least Bell's vireos nest primarily in willows (Salix spp.) but also

use a variety of other shrub and tree species for nest placement (Gray

and Greaves 1984, Salata 1987). Least Bell's vireos forage in riparian

and adjoining upland habitats (Salata 1983, Kus and Miner 1987).

Preliminary studies of vireo foraging behavior along the Santa Ynez

River and within the Mono Creek Basin (Santa Barbara County) indicated

that a large percentage of their foraging may occur in the adjacent

chaparral community up to 300 or more yards from the nest (Tom Keeney,

biologist, U.S. Army Corps of Engineers, July 31, 1985).

The reduction of least Bell's vireo numbers and distribution is

associated with widespread loss of riparian habitats and brood

parasitism by the brown-headed cowbird (Molothrus ater). Destruction or

significant alteration of riparian woodlands may have rendered the

least Bell's vireo population incapable of withstanding the increase in

brown-headed cowbird numbers that began in the 1920's (Grinnell and

Miller 1944, Gaines 1974).

The population decline of the vireo has been well documented. In

1973, no least Bell's vireos were found during an intensive search in

nearly all remaining riparian habitat between Red Bluff, Tehama County,

and Stockton, San Joaquin County (Gaines 1974). In 1977, the Service

reviewed the literature, examined museum material, and contacted

numerous National Audubon Society chapters and knowledgeable field

observers for information on the status of the least Bell's vireo

(Wilbur 1980). Since then, several intensive surveys of virtually all

potential breeding habitat in California have been conducted (Gaines

1977, Goldwasser 1978, Goldwasser et al. 1980, RECON 1989, unpublished

data on file with the Fish and Wildlife Service). Least Bell's vireos

remain at only about 40 of over 150 historically occupied sites (some

localities cover many miles of a water course) surveyed in the United

States from 1977 through 1991. Most of these locations contain fewer

than five pairs of vireos. About 76 percent of the U.S. population is

found at just five localities. The current breeding population of the

least Bell's vireo in California consists of approximately 500 pairs.

Fewer than several hundred pairs are estimated to occur in Mexico.

Consideration of New Information

The final rule is based on new biological and economic data, and

material received during the comment period for the proposed rule and

revised proposed rule.

Total Acres Included in Critical Habitat

The Service is designating critical habitat for the least Bell's

vireo at 10 areas encompassing approximately 38,000 acres (15,200 ha)

in Santa Barbara, Ventura, Los Angeles, San Bernardino, Riverside, and

San Diego Counties, California. About 49 percent of the vireo

population in the United States occurs within these 10 areas. Critical

habitat for the vireo occurs on the Santa Ynez River (Santa Barbara

County), Santa Clara River (Ventura and Los Angeles Counties), Santa

Ana River (Riverside and San Bernardino Counties), and Santa Margarita

River, San Luis Rey River, Sweetwater River, San Diego River, Tijuana

River, Coyote Creek, and Jamul-Dulzura Creeks (San Diego County).

Federal land within the critical habitat consists of approximately

10,979 acres (4,392 ha) including approximately 7,600 acres (3,040 ha)

in Santa Barbara County under the jurisdiction of the Forest Service,

3,338 acres (1,335 ha) in Riverside and San Bernardino Counties under

the jurisdiction of the Corps of Engineers, and 53 acres (21 ha) in San

Diego County under the jurisdiction of the International Boundary and

Water Commission. The remainder of the critical habitat is in State,

county, city, Indian Tribe, or private ownership.

Differences From Proposed Rule and Revised Proposed Rule and Final Rule

The May 3, 1985, proposed rule identified approximately 43,000

acres for designation as critical habitat. In preparing the revised

proposed rule, it was discovered that the 43,000-acre critical habitat

figure was in error and should have been reported as approximately

45,805 acres. Therefore, this final rule and associated documents refer

to the 45,805-acre figure as the correct acreage figure from the May 3,

1985, proposed designation.

The area encompassed by the 10 critical habitat areas has been

adjusted from approximately 45,805 acres (18,322 ha) in the original

proposed rule to 48,025 acres (19,210 ha) in the revised proposed rule

to about 38,000 acres (15,200 ha) in the final rule. In adjusting the

boundaries, 1,400 acres (560 ha) were deleted from critical habitat on

the Santa Ynez River and 3,620 acres (1,448 ha) were added, resulting

in a net increase of 2,220 acres (888 ha). This adjustment was

recommended by the Forest Service and was based on the results of

additional field research on the status, distribution, and behavior of

the least Bell's vireo on the Santa Ynez River during the 1986 breeding

season. An additional 120 acres (48 ha), adjacent to the northern

border of Gibraltar Reservoir, were also recommended for deletion by

the Forest Service but the Service does not believe that this change is

warranted because this area contains potential nesting habitat. All the

land suggested for either withdrawal or addition to the Santa Ynez

River critical habitat is under the jurisdiction of the Forest Service.

The additional 3,620 acres (1,448 ha) that were added are under Federal

jurisdiction, withdrawn from mineral entry, and without any private or

commercial interests.

Two adjustments have been made in the Santa Margarita River

critical habitat area. About 420 acres (168 ha) of upland private

property were removed based on a refinement in the legal description.

This adjustment did not exclude any vireo habitat. About 9,600 acres

(3,840 ha) on Camp Pendleton Marine Corps Base were removed based on

the finding that an existing Memorandum of Understanding (MOU) between

the Service and the Marine Corps for vireo management is providing an

adequate level of protection to the vireo and its habitat. Although

this area is essential to the conservation of the species, the Service

finds that a formal critical habitat designation is unnecessary because

the MOU contains provisions for section 7 consultation for proposed

actions that may destroy or adversely modify vireo habitat. The Service

also finds that a level of protection equivalent to or greater than

that provided by a critical habitat designation can be achieved for the

vireo on this portion of the Santa Margarita River through cooperation

with the Marine Corps under the MOU. The management actions implemented

under this agreement have significantly benefitted the vireo population

at this locality. It has increased from 98 territorial males in 1986

when the MOU was established to 212 territorial males in 1991. However,

the Service will reconsider its position to designate critical habitat

on the Camp Pendleton reach of the Santa Margarita River if conditions

warrant. The Service will use its authority under sections 7 and 9 of

the Act to insure compliance with the prohibitions on unauthorized

take.

One adjustment has been made in the San Luis Rey River critical

habitat area: About 80 acres (32 ha) of upland private property were

removed based on a refinement in the legal description. This adjustment

did not exclude any vireo habitat.

Available Conservation Measures

Section 7 Consultation

Section 4(b)(8) of the Act requires, for any proposed or final

regulation that designates critical habitat, a brief description and

evaluation of those activities (public or private) that may adversely

modify such habitat or may be affected by such designation. Regulations

found at 50 CFR 402.02 define destruction or adverse modification of

critical habitat as a direct or indirect alteration that appreciably

diminishes the value of critical habitat for both the survival and

recovery of a listed species. Such alterations include, but are not

limited to, alterations adversely modifying any of those physical or

biological features that were the basis for determining the habitat to

be critical.

Once critical habitat is designated, section 7(a)(2) requires

Federal agencies to ensure that activities they authorize, fund, or

carry out are not likely to destroy or adversely modify critical

habitat. This Federal responsibility accompanies, and is in addition

to, the requirement in section 7(a)(2) of the Act that Federal agencies

insure that their actions are not likely to jeopardize the continued

existence of any listed species. As required by 50 CFR 402.14, a

Federal agency must consult with the Service if it determines an action

may affect a listed species or its designated critical habitat. Thus,

the requirement to consider adverse modification of critical habitat is

an incremental section 7 consideration above and beyond section 7

review to evaluate jeopardy and incidental take. Regulations

implementing this interagency cooperation provision of the Act are

codified at 50 CFR part 402.

Basis for Analysis

The evaluation of actions that may adversely modify least Bell's

vireo critical habitat should consider a number of factors such as the

present condition of the habitat, the number of current pairs, the

reproductive success of breeding pairs, the expected time to regenerate

sufficient habitat to support an effective population at a particular

site, and local and regional problems. Although the Service considered

the entire range of the least Bell's vireo in determining an approach

to critical habitat designation, its section 7 analysis of actions that

may adversely affect vireo critical habitat will consider the

significance of impacts at individual critical habitat areas as well as

the entire range. All proposed actions should be viewed as to their

impacts on all four constituent elements relative to the potential for

adverse modification on individual critical habitat areas.

Examples of Actions Affecting Critical Habitat

Activities that disturb or remove the primary constituent elements

within proposed critical habitat areas may constitute destruction or

adverse modification of critical habitat. In the case of the vireo,

these activities include: (1) Removal or destruction of riparian

vegetation, (2) thinning of riparian growth, particularly near ground

level, (3) removal or destruction of adjacent chaparral or other upland

habitats used for foraging, and (4) increases in human-associated or

human-induced disturbance. Specific actions that could adversely affect

vireo critical habitat include stream channelization, water impoundment

or extraction, water diversion, livestock grazing, intensive

recreation, and conversion of presently existing riparian or adjacent

upland areas to residential, agricultural, or commercial use. Complete

or major destruction of riparian vegetation would result in the

extirpation of the least Bell's vireo from the affected area, which

could further endanger the species throughout the remainder of its

range and preclude opportunities for recovery. Thinning or selectively

removing components of riparian vegetation could cause vireos to

abandon an area because suitable nesting and foraging sites are scarce

or absent or could result in lowered reproductive success because of

diminished habitat quality. Increases in recreation could cause actual

destruction of nests or could disrupt nesting activities which in turn

could cause nest abandonment, lowered hatching success, increased rates

of cowbird parasitism and depredation events, and a decrease in the

number of fledged young.

Other Conservation Measures: Non-Federal Lands

Section 9 of the Act prohibits intentional and unintentional

``take'' of listed species and applies to all landowners regardless of

whether or not their lands are within critical habitat (see 16 U.S.C.

1538(a)(1), 1532(1a) and 50 CFR 17.3). Section 10(a)(1)(B) authorizes

the Service to issue permits for the taking of listed species

incidental to otherwise lawful activities such as agriculture, sand and

gravel mining, and urban development. Incidental take permits must be

supported by a habitat conservation plan (HCP) that identifies

conservation measures that the permittee agrees to implement to

conserve the species, usually on the permittee's lands. A key element

of the Service's review of an HCP is a determination of the plan's

effect upon the long-term conservation of the species. The Service

would approve an HCP, and issue a section 10(a)(1)(B) permit if the

plan would minimize and mitigate the impacts of the taking and would

not appreciably reduce the likelihood of the survival and recovery of

that species in the wild.

The San Diego Association of Governments (SANDAG) is coordinating

the development of HCPs for the San Diego River and Sweetwater River

critical habitat areas. This effort also included the development of

draft plans for the Santa Ana River and San Luis Rey River critical

habitat areas, but these plans are no longer under consideration. The

intent of these plans is to address land use conflicts and to conserve

the vireo and its habitat. The Service will issue section 10(a)(1)(B)

permits, if the HCPs are acceptable. In November 1991, the Service

received two permit applications and final draft HCPs from SANDAG for

the incidental take of vireos on the San Diego and Sweetwater Rivers.

SANDAG is currently finalizing the HCPs and a draft Environmental

Assessment is under preparation. Based on the review of drafts of these

plans, the Service anticipates that they will be compatible with the

designation of critical habitat.

Summary of Economic Analysis

Section 4(b)(2) of the Act requires the Service to designate

critical habitat on the basis of the best scientific data available and

to consider the economic impact and any other relevant impact of

specifying any particular area as critical habitat. The Secretary may

exclude any area from critical habitat if he determines that the

benefits of such exclusions outweigh the benefits of specifying such

area as part of the critical habitat, unless it is determined, based on

the best scientific and commercial data available, that the failure to

designate such area as critical habitat would result in the extinction

of the species concerned. The Act thus requires the Service to evaluate

those economic and other effects likely to take place due to the

designation of critical habitat, and to consider whether to exclude

some critical habitat.

The economic effects of designating critical habitat for the least

Bell's vireo are the project-related costs of habitat mitigation within

the 10 areas designated as critical habitat over and above those costs

incurred as a result of listing the vireo as an endangered species in

May 1986 and as a result of compliance with the Federal Clean Water Act

for those activities involving the placement of fill into waters of the

United States.

Affected Agencies

The Service assumes in the economic analysis that the impacts to

Federal agencies are related to activities that physically alter

critical habitat. The Forest Service, Corps of Engineers (Corps),

Federal Highway Administration, and International Boundary and Water

Commission are the agencies most likely to be affected by the critical

habitat designation.

Economic Effects

Activities that may be affected include construction and

maintenance of dams, water control and transport, fire suppression,

recreation, oil and gas production and transport, sand-mining,

residential and commercial development and related facilities,

agriculture, and highway and bridge construction.

Private lands within critical habitat (15,961 acres) are currently

used primarily for agricultural purposes and are not expected to be

economically affected. There are no known proposals with Federal

involvement.

Numerous Federal, State, and local agencies have jurisdiction over

the affected activities. Several informed the Service that critical

habitat designation is consistent or compatible with their management

objectives. Although a number of agencies expressed concern that the

designation of critical habitat would affect proposed or future

projects and asked to have various project areas removed, the economic

costs attributable to critical habitat for those projects are expected

to be insignificant.

Federal agencies expected to incur economic costs attributable to

designation of critical habitat include the Forest Service, Corps of

Engineers, and the International Boundary and Water Commission. The

Forest Service anticipates an increased cost of $2,000 per year for

additional fire suppression activities and $1,000 per year for

additional ranger patrols to protect vireo habitat in the Santa Ynez

River critical habitat area. It may become necessary for the Corps of

Engineers to initiate patrols of its land in the Santa Ana River

critical habitat area to control trespassing, at an anticipated cost of

$20,000 a year. The Service believes that the International Boundary

and Water Commission flood control activities in the Tijuana River area

will incur no significant economic costs.

Construction of the Hamner Avenue Bridge in the Santa Ana River

area was completed in 1985. The project included a compensation package

for adverse effects to wildlife and wetlands that cost a total of

$462,000, of which $113,400 was for cowbird control and nest monitoring

to compensate for impacts to vireo habitat. The annualized value of the

critical habitat effect is $8,000 per year.

A number of projects may incur economic costs because critical

habitat designation is expected in some cases to require habitat

mitigation or compensation that goes beyond current requirements. Under

current procedures, whenever proposed projects affect wetlands, the

proposing agency is required to replace habitat values either

concurrently (up to 5 acres replaced for every 1 acre lost) or prior to

their destruction (1 acre replaced for every 1 acre lost). In most

cases, the agencies have chosen to replace the habitat values

concurrently in order to avoid expensive project delays. With critical

habitat designation, the Service expects in some cases to require

replacement of habitat values prior to implementation of the action.

The Service anticipates that the maximum additional cost would be

$75,000 per acre for replacement of vireo habitat values prior to their

destruction rather than concurrently. The incremental cost is due

primarily to the need for additional landscaping and revegetation to

create fully functional vireo habitat in a 2 to 3-year period. The cost

of land acquired for mitigation purposes in such cases is attributable

to the provisions of the Clean Water Act, or other laws and regulations

protecting the environment. In some cases where land values are high,

the total cost per acre of habitat destroyed may be less for prior

replacement than for concurrent replacement.

A proposed road crossing of the San Diego River associated with the

Mission Trails Regional Park could adversely affect critical habitat.

The project is still in the planning stage and the exact amount of

habitat that would be affected is not known. The Service estimates that

up to 5 acres of habitat may need to be replaced. At $75,000 per acre,

an additional cost of $375,000 would be required for prior replacement

of lost vireo habitat values. The annualized equivalent of the $375,000

one-time cost is $27,000 per year.

The Home Capital Development Group's planned Rancho San Diego

project may adversely affect critical habitat in the Sweetwater River

area. The Service estimates that up to 3 acres of habitat may need to

be replaced prior to project initiation at an additional cost of

$225,000. The annualized equivalent of the $225,000 one-time cost is

$16,000 per year.

The Corps of Engineers authorizes a number of activities in the

Prado Basin of the Santa Ana River critical habitat area. Future

changes in some of these existing activities could affect critical

habitat, and proponents may incur additional costs as a result.

However, because project proposals were not identified during the

public comment period of the proposed rule, the Service is unable to

provide an estimate of any economic impact due to critical habitat

considerations.

Sand and gravel mining activities that are regulated under the

Clean Water Act could affect critical habitat, especially along the San

Luis Rey River. Although there are no specific project proposals, the

Service anticipates that the maximum additional cost would be $75,000

per acre of habitat destroyed.

SANDAG is coordinating the development of HCPs under section 10 of

the Endangered Species Act for the San Diego River and Sweetwater River

critical habitat areas. This effort also included the development of

draft plans for the Santa Ana River and San Luis Rey River critical

habitat areas but these sites are no longer under consideration. The

habitat conservation planning process is being used to address land use

conflicts and to conserve the least Bell's vireo. The Service will

issue section 10(a) permits if these plans are acceptable. Based on

Service review of drafts of these plans, it is anticipated that they

will be compatible with the designation of critical habitat, and no

additional economic costs are expected.

The total cost attributable to the designation of critical habitat

for projects with supporting data is approximately $74,000 per year.

Projects expected to be affected by critical habitat designation for

which adequate cost data are not available would not add substantially

to that total. Impacts on regional employment, household income, and

tax revenues are expected to be insignificant.

Summary of Comments and Recommendations

In the proposed rule published May 3, 1985, the revised proposed

rule published on August 7, 1992, and associated notifications, all

interested parties were requested to submit factual reports or

information that might contribute to the development of a final rule

for the vireo or its critical habitat. Appropriate State agencies,

county governments, Federal agencies, scientific organizations, and

other interested parties were contacted and requested to comment. A

correction to some of the legal descriptions of the proposed critical

habitat was published in the June 4, 1985, Federal Register (50 FR

23458). Newspaper notices were published by June 7, 1985, in the Blade

Tribune, Enterprise, Los Angeles Times, News Press, Riverside Press,

San Bernardino Sun, San Diego Transcript, San Diego Tribune, and San

Diego Union, all of which invited general public comment. Notification

of public hearings and an extension of the comment period to August 30,

1985, was published on July 9, 1985 (50 FR 27992). Public hearings were

conducted in San Diego on July 30, 1985, in Oxnard on July 31, 1985,

and in Anaheim, California, on August 1, 1985.

An additional notification extending the comment period to December

2, 1985, was published on October 3, 1985 (50 FR 40424). These two

additional notifications were also published in the aforementioned nine

newspapers in July and October, respectively. On May 2, 1986, the least

Bell's vireo was listed as endangered, and the public comment period on

proposed critical habitat was reopened for an additional 90 days (51 FR

16483). A further extension of the comment period to January 1, 1987,

was published on July 31, 1986 (51 FR 27429). Approximately 120

interested parties were notified regarding this extension of the

comment period.

The public comment period was again reopened for 90 days subsequent

to the publication of the revised proposed rule on August 7, 1992 (57

FR 34298). Two additional public hearings were also scheduled by the

Service. A legal notice announcing the hearings and inviting general

public comment on the revised proposal was published in the San Diego

Union-Tribune on August 17, 1992. About 200 potentially affected or

interested parties were notified regarding this revised proposed

action. Public hearings were held in Garden Grove, California, on

October 20, 1992, and in San Diego on October 22, 1992. A total of

about 30 individuals attended these hearings.

Multiple comments whether written or oral from the same interested

party are regarded as one comment. Written comments and oral statements

questioning or opposing critical habitat designation as originally

proposed were grouped into 24 issues and discussed in the revised

proposed rule (57 FR 34892).

Of the 87 comments received on the revised proposal to designate

critical habitat, 24 (28 percent) supported the designation, 3 (3

percent) opposed the designation, 51 (59 percent) recommended that the

Service change the boundaries or delay the designation, and 9 (10

percent) were non-committal.

The Service has identified 25 issues associated with these 87

comments that reflect a questioning of, or opposition to, critical

habitat designation and are discussed below.

Issue 1: Certain areas should be excluded from critical habitat

because the habitat is already degraded, or proposed plans will

indirectly degrade the habitat. Along the Santa Clara River, for

example, cowbirds are numerous within the habitat and make it less

suitable for vireos. Also, reclaimed sewage water flows through the

Santa Clara River, and treatment chemicals may affect the vireo. At

expected build-out conditions, the noise generated by traffic along

such areas as Jamul Creek and the San Luis Rey River may render the

habitat unsuitable for vireos.

Service Response: As long as the constituent elements of critical

habitat are present, the factors leading to the degradation of such

habitat are not considered in the designation process. Noise, cowbird

parasitism, pollution, and other factors contribute incremental impacts

upon the vireo, but management of critical habitat areas may reduce or

eliminate these impacts. Extensive unmitigated habitat loss may

preclude the ability of a listed species to recover. Critical habitat

designation should reduce the chances of this occurring with respect to

the least Bell's vireo.

The Act also specifies that certain management considerations may

be necessary in critical habitat areas. Cowbirds are common in riparian

habitat throughout the range of the least Bell's vireo. The judicious

trapping of cowbirds and monitoring of vireo nests has significantly

reduced the detrimental effects of cowbird parasitism on the vireo at

several localities.

Issue 2: Critical habitat should be modified to more accurately

reflect the location of nesting and foraging habitat. Urban

developments, agricultural lands, industrial operations, recreational

facilities, highways, railroads, etc., are included within the

boundaries of critical habitat designation.

The Service has exceeded its authority under the Act by including

in the critical habitat area, land which it knows does not meet the

Act's definition of critical habitat. The regulations state that

``critical habitat will be defined by specific limits using reference

points and lines as found on standard topographic maps of the area''

[50 CFR 424.12(c)]. The Service should choose reference points that are

more precise than section lines, and less ephemeral than trees and

sandbars.

Service Response: The suggestion to designate more precise

boundaries may be possible in some cases. No specifics on suggested

boundaries were provided. Attempting to redefine the critical habitat

by another means would unduly delay a final decision on this matter.

The Service is required to use existing, readily recognizable

boundaries in the development of legal descriptions for critical

habitat. The Service cannot use ephemeral features such as vegetation

for boundaries. In cases where areas designated as critical habitat do

not contain the primary constituent elements, impacts occurring within

this area will not result in a finding of adverse modification by the

Service. Thus, designation of critical habitat will not effect those

areas within the legal critical habitat boundaries that do not contain

vireo nesting or foraging habitat.

Issue 3: The Service has not clarified the potential effects of

critical habitat designation on private landowners. For example,

Service responses to Issues 7 and 18 in the revised proposed rule (50

FR 34892) appear contradictory. The response to Issue 7 states that

most activities potentially taking place within critical habitat will

require Federal approval, and therefore be subject to the requirements

of section 7 consultation. The discussion of Issue 18, however, implies

that Federal involvement in projects on private land would be unusual.

Federal case law indicates that designation of critical habitat

will, contrary to the Service's representations, affect activities on

State and private property even if there is no Federal involvement. For

example, in Palila v. Hawaii, 639 F. 2d 495 (9th Cir. 1981), the court

held that the state of Hawaii's maintenance of sheep and goats within

Palila (Loxioides bailleui) critical habitat constituted a take, even

though there was no Federal involvement.

Service Response: Section 7 of the Act applies only to Federal

agencies, directing them to ensure that their actions do not jeopardize

the continued existence of listed species or adversely modify critical

habitat. The Service maintains that a project potentially affecting a

federally listed species will only require section 7 consultation when

Federal funding, approval, permitting, licensing, or other

discretionary authority is involved. Because the least Bell's vireo

critical habitat is primarily wetland, it is anticipated that the Army

Corps of Engineers will be involved in projects affecting this habitat,

through the section 404 permitting process of the Clean Water Act. A

section 404 permit is required for projects involving dredge or fill of

jurisdictional wetlands or waters of the United States. For projects on

private property, where wetland within critical habitat is neither

dredged nor filled, Federal involvement under section 7 is not

anticipated.

By contrast, section 9, which prohibits the unpermitted ``take'' of

endangered species, applies to all ``persons'' (as defined in the Act)

within the jurisdiction of the United States. Pursuant to section 9 of

the Act and the regulations and statutes pertaining thereto, ``take''

means to ``harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture or collect, or to attempt to engage in any such conduct'' [16

U.S.C. 1532(19)]. In the case of Palila v. Hawaii, the Court rendered

an opinion on the legal definition of ``take.'' The Court ruled in

Palila v. Hawaii that habitat destruction harms a species by indirectly

causing a decline in the population, and precluding recovery of the

species. Therefore, the court's ruling in this case pertained to the

legal definition of ``take'' and not the designation or function of

critical habitat. A landowner destroying vireo habitat might be

involved in a section 9 taking, but would have no incremental legal

exposure as a result of critical habitat designation.

Issue 4: The revised proposed rule uses an improper incremental

approach to the economic analysis required by the Act. In the revised

proposed rule, the Service stated that the economic analysis should

only apply to project-related costs of mitigation within critical

habitat designation over and above those costs that would be incurred

as a result of listing the vireo. The Service thereby eliminated the

restraints imposed through the balancing process set forth in section 4

of the Act.

Service Response: The effects of critical habitat designation are

incremental, and represent only a portion of the total cost of a

species' conservation. A high level of protection is already afforded

to least Bell's vireo habitat by the Clean Water Act and Federal

wetlands policy. An additional layer of protection has been added to

this by the listing of the vireo, which prohibits jeopardy and take of

the species. Even without designation of critical habitat, modification

of occupied vireo habitat can constitute jeopardy or take. Federal

agencies cannot adversely modify designated critical habitat. As

discussed above under ``Available Conservation Measures,'' that is in

addition to the requirement to avoid jeopardizing the continued

existence of a federally listed species. Furthermore, if a Federal

agency may affect critical habitat, that agency must consult with the

Service even if the habitat happens to be unoccupied. These added

section 7 requirements were considered in the development of the

economic analysis.

In the 1982 amendments to section 4 of the Act, Congress added the

word ``solely'' to the statutory directive that the Secretary base

listing on the best scientific and commercial data available. A House

of Representatives report states:

The addition of the word ``solely'' is intended to remove from the

process of the listing or delisting of species any factor not related

to the biological status of the species. The committee strongly

believes that economic considerations have no relevance to

determinations regarding the status of species * * *. Applying economic

criteria to the analysis of these alternatives and to any phase of the

species listing process is applying economics to the determinations

made under section 4 of the Act and is specifically rejected by the

inclusion of the word ``solely'' in this legislation. [H.R. Rep. No.

97-304; see 16 U.S.C. 1533(b)(1)(A)]

The Joint Regulations on Endangered Species also state that the

Secretary may make a determination of listing ``solely on the basis of

the best available scientific and commercial information regarding a

species' status, without reference to possible economic or other

impacts to such determination'' (50 CFR Sec. 424.11(b)). In 1978,

Congress amended section 4 of the Act to require the Secretary to take

into consideration ``the economic impact, and any other relevant

impact, of specifying any particular area as critical habitat'' (16

U.S.C. 1532(5)(A)(i)). Federal regulations on implementation of the Act

state that ``A final designation of critical habitat shall be made on

the basis of the best scientific information available, after taking

into consideration the probable economic and other impacts of making

such a designation in accordance with Sec. 424.19'' (50 CFR

Sec. 424.12(a)). The Service interprets the history of the Act and

Federal regulations to clearly indicate that the economic analysis

should only take into account the effects of designating critical

habitat, and not those of listing the species.

Issue 5: Some individuals wanted to know if critical habitat

designation would result in the need for additional mitigation for

projects with ongoing management or conservation plans designed to

mitigate impacts to vireos.

Service Response: For projects that have completed the section 7

consultation process to develop mitigation measures for direct and

indirect impacts to the least Bell's vireo and vireo habitat, it is

highly unlikely that additional measures will be required as a result

of the critical habitat designation.

For example, two California Department of Transportation (CALTRANS)

projects in San Diego County and an Orange County Water District water

conservation project in the Prado Basin that involve Federal funds,

permits, or authorizations prompted formal section 7 consultations

because of proposed impacts to vireos and/or vireo habitat irrespective

(and in advance) of critical habitat designation. In each case, the

overall project-related impacts to the vireo were evaluated and

disclosed, and mitigation was proposed in the required environmental

documentation. Mitigation was appropriately developed in each instance

that compensates, to the extent deemed reasonable and prudent, for

unavoidable direct and indirect impacts to the vireo, vireo habitat,

and public fish and wildlife resources in general. Therefore, the

Service fully anticipates, in these instances, that no additional

mitigation would be required, prudent, or even possible as a result of

the designation of critical habitat. In this regard, the Service cannot

summarily dismiss the Orange County Water District's (District)

position that ``barring unforeseen circumstances, the mitigation and

conservation measures that have been implemented and proposed for

implementation'' as a result of a current section 7 consultation will

fully mitigate for impacts associated with the District's water

conservation project.

Issue 6: Since conversion of land to residential or commercial

development would adversely affect critical habitat, property owners

would lose beneficial use of their land. Critical habitat designation

within certain areas, such as the San Luis Rey Municipal Water

District, would thus constitute a regulatory taking of property.

Service Response: Property owners within the critical habitat

boundaries are not expected to lose beneficial use of their land as a

result of critical habitat designation itself. In evaluating proposed

projects within critical habitat boundaries, under section 7 of the

Act, the Service would first determine if the specific area contained

foraging or nesting habitat for least Bell's vireos. The designation of

critical habitat would only affect those areas that contained elements

of nesting or foraging habitat. Areas that lack foraging or nesting

habitat would not be affected by the designation. Furthermore, within

critical habitat, only those activities with Federal involvement would

be subject to section 7 consultation. Such involvement is most likely

to occur when a project involves dredge or fill of waters of the United

States. In cases where section 7 consultation is required, reasonable

and prudent alternatives or measures are likely to be developed that do

not preclude the development of private property. Given the pertinent

data pertaining to past section 7 consultations involving the vireo or

other listed species in southern California, it is extremely unlikely

that any project would be effectively stopped or significantly modified

because of the section 7 process. In fact, a World Wildlife Fund study,

using 12 years of data from the entire United States, concluded that

``The vast majority of federal activities subject to consultation

successfully proceeded to completion while accommodating the needs of

endangered and threatened species.'' Less than 1 percent of the actions

that were the subject of formal consultation during this study were

``blocked'' because of section 7 (Barry et al. 1992).

In the rare cases when the Service issues jeopardy opinions without

acceptable reasonable and prudent alternatives, the action agency may

take the project to an exemption committee and ask that its projects be

exempted from the requirements of the Act. The Service anticipates that

few, if any, opinions would not contain acceptable reasonable and

prudent alternatives.

Issue 7: If it is found that water extraction is damaging to least

Bell's vireo critical habitat, then restrictions on water extraction

would impinge on the rights of landowners and have a large economic

impact on agriculture. Such restrictions would also threaten the supply

of domestic water necessary to meet the water demands for certain

communities.

Service Response: As discussed in the response to Issue 3 above,

only those projects with Federal involvement would be directly affected

by critical habitat designation. The Service does not anticipate any

circumstances in which there would be Federal involvement in water

extraction processes on private property within any of the critical

habitat areas. Water extraction rights on private property could not be

negated because of critical habitat designation.

Issue 8: The benefits of designating certain areas such as Newhall

property on the Santa Clara River do not exceed the economic costs of

such designation. Current and potential revenues from agriculture,

housing development, and filming activities on Newhall property, within

proposed critical habitat, exceed $200 million, and revenues from

adjacent Newhall activities potentially impacted by the designation

exceed $160 million. In addition to Newhall, other property owners have

expressed concerns over the costs of mitigation requirements that would

be generated by the critical habitat designation on their lands.

Service Response: Newhall's analysis (Newhall Land and Farming

Company 1992) and comments submitted by other landowners are based on

the assumption that designation of critical habitat would prohibit or

substantially modify all activities within the designated boundaries.

The response to Issue 6 above indicates that the Service anticipates

very few, if any, projects to be stopped or significantly modified due

to critical habitat designation itself. Any impact on these projects

would be through section 9 prohibitions on taking.

In addition, habitat occupied by vireos is already protected

because of its status as a federally-listed species. The Clean Water

Act, National Environmental Policy Act, Fish and Wildlife Coordination

Act, Federal wetland policy, sections 1601 and 1603 of the California

Fish and Game Code, and the California Environmental Quality Act also

provide various degrees of consideration or protection for these areas.

The requirements of these statutes overlap considerably, and ascribing

costs incurred for mitigation or compensation to each of these statutes

separately is problematical.

If occupied vireo habitat, jurisdictional wetlands or waters of the

United States are to be affected by a Federal agency or project

proponent, that agency or project proponent is presently required (in

the absence of critical habitat designation) to replace those values

with from 1 to 5 acres of appropriate habitat created for every acre

lost. However, this replacement is generally mandated at the Federal

level only if the impact exceeds 1 acre under the Corps' Nationwide

Permit Program implementing, in part, section 404 of the Clean Water

Act or if vireos would be affected by the project pursuant to section 7

of the Act and the implementing regulations pertaining thereto.

With critical habitat designation, the essential elements of

suitable, but unoccupied, habitat must be preserved through project

design or mitigation. Thus, designation of critical habitat generally

would have an incremental economic effect only on federally involved

projects that are less than an acre in size or that require mitigation

measures above and beyond what is currently being negotiated or

required given the vireo's status as a listed species and the

regulatory authority of the Corps of Engineers and California

Department of Fish and Game to require the minimization or mitigation

of impacts to jurisdictional wetlands or waters. Therefore, those

mitigation measures attributable solely to critical habitat designation

(e.g., the replacement or rehabilitation of small amounts of habitat,

contributions to habitat or species management funds) are expected to

be relatively infrequent and add only incrementally to project costs.

Costs associated with wetland creation are discussed under the response

to Issue 3 in the revised proposed rule (57 FR 34892).

In any case, the National Environmental Policy Act and the

Endangered Species Act state that costs associated with mitigation or

compensation are part of the project costs. Because the least Bell's

vireo is essentially an obligate wetland species, the costs associated

with impacts to unoccupied vireo habitat would be borne by the project

applicant whether or not critical habitat was designated. However, the

Service believes that no mitigation costs will be attributable to the

designation of critical habitat for projects on private lands that are

outside the jurisdiction of Federal regulatory agencies.

Issue 9: The designation of critical habitat may impact flood

control projects. If periodic removal of riparian vegetation from flood

control channels is restricted, the impacts will involve not only

losses of water and uncontrolled flooding, but also costs in terms of

human life.

Service Response: The response to Issue 6 above states that

projects are rarely blocked, since reasonable and prudent alternatives

or measures are usually developed that allow the project to proceed in

a timely manner. The response to Issue 8 above addresses the potential

increase in regulation due to critical habitat designation. A high

level of protection is afforded to wetlands by the Clean Water Act and

Federal wetland policy. Regulations to avoid, minimize, or compensate

for impacts to wetlands in general, and vireo habitat in particular,

would be incurred even if critical habitat was not designated. The

layer of regulation added through critical habitat designation is not

expected to preempt public health and safety. Although the Service

encourages long-range planning of all projects that adversely affect

the vireo or vireo habitat, it recognizes that emergencies (e.g.,

fires) develop that necessitate accelerated consultations or the

assessment of impacts and development of appropriate mitigation

measures after-the-fact.

Issue 10: Utility corridors and access roads should not be included

as critical habitat. Both routine and emergency maintenance are

necessary to maintain public safety and service.

Service Response: Utility corridors exist within least Bell's vireo

critical habitat; however, no biological evidence or other basis

justifies the exclusion of such corridors from a critical habitat

designation. The Service will address each project on a case-by-case

basis and assist the Federal action agency in avoiding, minimizing, and

mitigating for impacts to the vireo and its critical habitat. In

addition, agencies are generally encouraged to request formal

consultation on programmatic activities. Such consultations would

facilitate long range planning efforts. The Service is unaware of any

instances where the maintenance of utility structures or facilities was

precluded by the listing of the vireo; it is anticipated that the

designation of critical habitat similarly will not impinge on necessary

operations. Furthermore, as was explained in the response to Issue 9

above, pertinent regulations and Service policy provide for the

resolution of impacts to listed species and their critical habitat that

result from corrective actions taken in true emergency situations.

Issue 11: Designation of critical habitat requires an Environmental

Impact Statement (EIS) pursuant to the requirement for Federal agencies

to comply with the National Environmental Policy Act (NEPA).

Service Response: For the reasons cited in the NEPA section of this

rule, the Service has determined that rules issued pursuant to section

4(a) of the Endangered Species Act do not require the preparation of an

EIS.

Issue 12: Prior replacement of habitat should only be required when

it can be conclusively determined that existing habitat is being used

at its full potential. Several commenters also expressed the opinion

that the mandated replacement of vireo habitat prior to project

commencement would be an unreasonable and excessive requirement.

Service Response: In the vast majority of section 7 consultations

on potential impacts to the vireo, the Service has recommmended prior

replacement of vireo habitat, and does not anticipate changing this

pattern with designation of critical habitat. Only in cases involving a

relatively large acreage of unoccupied vireo habitat would such a

requirement result from critical habitat designation. Because

requirements for habitat replacement in advance have invariably been

prompted by projects with substantial impacts to vireos or significant

portions of occupied vireo habitat, it is anticipated that prior

habitat replacement would be necessary in those circumstances

regardless of whether critical habitat has been designated. In some

cases, especially where land costs are high, project proponents have

chosen to mitigate project-related impacts in advance to increase the

likelihood of ``no net loss'' of wetland or vireo habitat values. This

approach has also been used as a means to minimize the required amount

of habitat compensation.

Issue 13: Several commenters suggested that the Service should

specify the criteria used to distinguish vireo quality habitat within

the designated boundaries. Some suggested that the Service should have

designated boundaries to more accurately reflect the actual habitat

boundaries.

Service Response: In establishing the approximate limits of actual

critical habitat within the designated critical habitat area

boundaries, the Service utilized National Wetland Inventory maps.

Because the large majority of vireo habitat consists of mixed woodland

or willow woodland habitats that are contained within jurisdictional

wetlands and waters of the United States, these maps fairly accurately

designate the extent of actual or potential habitat at a designated

locale.

Issue 14: The Service has not addressed the biological implications

of artificially sustaining riparian habitat in the successional stage

appropriate to support least Bell's vireos. What associated habitats

and species will suffer from receiving a lower level of protection as a

direct or indirect effect of the designation?

Service Response: The Service is not advocating artificial

maintenance of riparian habitat at a particular successional stage.

Rather, the Service is advocating maintenance of natural systems under

conditions that will be conducive to supporting vireo populations.

Since the vireo was first listed by the state of California in 1980, it

has not been necessary to artificially maintain vireo habitat at a

given successional stage.

Issue 15: Designation of critical habitat should be postponed until

ongoing conservation plans to mitigate negative impacts to the vireo

are in place and evaluated, or until further studies are completed and

we know exactly why the vireo has declined.

Service Response: On the basis of past experience with other listed

species and critical habitat designations, the Service believes that

the designation of critical habitat will not be incompatible with

existing conservation or management plans. Current drafts of habitat

conservation plans for the San Diego and Sweetwater Rivers are

considered by the Service to be compatible with critical habitat

designation. The designation of critical habitat may, in fact, simplify

the creation and funding of area or drainage-specific management plans.

Based on the demonstrated, relative success of several vireo

management plans and other conservation efforts within its range and

the endangered status of this species, the Service cannot justify the

postponement of critical habitat designation until all management plans

are evaluated or in place. Such a postponement could reduce the chances

for the survival or recovery of the species.

Issue 16: The Orange County Water District requested the exclusion

of all lands below the 505-foot elevation in the Prado Basin from

critical habitat designation because of its commitment to mitigate

impacts to vireos and vireo habitat below that elevational contour.

Service Response: The Corps' Draft EIS for the Orange County Water

District's water conservation project indicates that implementation of

the District's project will be phased. The level of the water

conservation pool will be incrementally raised: (1) Once habitat above

the 505-foot elevation is rehabilitated, restored, or created to

replace occupied and presently unoccupied vireo habitat below 505-ft

that is destroyed or degraded because of the project, and (2) it is

demonstrated that the vireo population is not adversely impacted by

their displacement or the destruction or degradation of preferred

habitat. For these reasons, the Service did not remove lands from

critical habitat designation within the Prado Basin that currently

accommodate a majority of the nesting pairs representing the second

largest vireo population in the United States.

Issue 17: Several commenters noted that the Service should also

list critical habitat for other areas (e.g., the lower Santa Ynez River

in Santa Barbara County) or for all areas with populations of more than

10 pairs of vireos.

Service Response: The Service retains the option to consider the

designation of additional critical habitat. Designation of more

critical habitat would be the subject of a new proposed rule that would

solicit public comments and provide for a public hearing, if so

requested.

Issue 18: Given the high levels of cowbird nest parasitism and

habitat loss, it may already be too late to save the vireo even if

habitat is preserved.

Service Response: The stability or instability of populations is

not one of the criteria used to determine the appropriateness of

designating critical habitat. The Act requires the Service to designate

critical habitat for a listed species in areas that are essential to

the conservation of the species, unless it is not prudent to do so. The

Act would require the designation of critical habitat even if little

could be done to minimize most threats facing the species. Fortunately,

however, the vireo has responded favorably to management in a number of

locations throughout its range. Therefore, it seems reasonable to

conclude that the designation of critical habitat will provide

additional protection to the vireo and increase the likelihood of its

recovery.

Issue 19: Certain areas should not be designated as critical

habitat because they do not ``* * * require special management

considerations or protections,'' as prescribed by section

3(5)(A)(i)(II) of the Act. This comment was usually followed by a

belief about which type of regulations already provide ``special

management considerations or protections.''

The Service should not designate critical habitat because other

regulations and levels of government already protect the habitat

sufficiently. For example, local and/or State governments can manage

habitat and prevent private landowners from clearing riparian

vegetation. Projects altering a stream course are subject to review

under section 1601 or 1603 of the California Fish and Game Code.

Federal regulations also protect proposed critical habitat.

Designation of critical habitat is not necessary for areas in which

activities are planned that will require National Environmental Policy

Act (NEPA) review and compliance. Nor is it necessary to designate

critical habitat on the Santa Ynez River because this area is already

protected under the jurisdiction of the Forest Service. All these

regulations and management practices preclude the need for designating

critical habitat.

Service Response: Local governments have not prevented habitat loss

for the least Bell's vireo under existing regulatory mechanisms. Areas

under Federal jurisdiction may require special management

considerations or protection that would not be afforded without

critical habitat designation. For these reasons, the Service believes

that inclusion of areas already subject to local, State, or Federal

regulations is consistent with the definition of critical habitat cited

under section 3(5)(A)(i)(II) of the Act.

Issue 20: Critical habitat designation in the Prado Basin of the

Santa Ana River would force the Corps of Engineers to release storm

water quickly (to minimize the adverse effects of standing water on

vireo habitat) and at too great a velocity for the local water district

to divert it into their percolation (spreading) basins for water

conservation.

Service Response: The Service has been working with the Corps of

Engineers, Orange County Water District, and The Nature Conservancy to

resolve conflicts between vireo conservation and flood control/water

conservation activities in the Prado Basin. Based on the distribution

and abundance of the vireo within the Prado Basin relative to the

reservoir pool inundation zone, these water management activities may

affect a listed species. On that basis, the Corps initiated formal

consultation with the Service on October 16, 1992. The Corps has

included a thorough compensation package as part of the project

description. The proposed compensation measures very likely adequately

provide for impacts to the vireo and its habitat. For this reason, the

Service believes that a critical habitat designation is not likely to

impose any additional costs for avoiding, minimizing, or mitigating

impacts to the vireo.

Issue 21: The cost of mitigation as a result of critical habitat

designation would place an unreasonable financial risk on the project

proponent. For example, one commenter estimated it would cost about $4-

10 million to create habitat to compensate for the habitat that would

be destroyed by raising the height of Gibraltar Dam. Since riparian

habitat creation is expensive and the results are unpredictable, the

project proponents may spend a great deal of money with no return if

the mitigation program should fail.

Service Response: As stated in the response to Issue 12 above,

designation of critical habitat could, in a few cases, require prior

habitat replacement of applicants for projects in areas that contain

suitable, but unoccupied, vireo habitat.

Wetland compensatory mitigation can be a costly, time-consuming,

and difficult endeavor with an uncertain probability of success.

However, in the 6 years since the vireo was listed, two agencies have

constructed projects that have been subject to this prior replacement

requirement, and both have successfully created habitat that now

supports vireos. As restoration techniques are further refined, it is

likely that revegetation projects will become more successful in

shorter time frames. The requirement to create vireo habitat before

existing habitat is destroyed ensures that this federally listed

species would not sustain a loss of habitat, even temporarily. In some

cases, the temporary loss of habitat may have a significant adverse

impact on the vireo. Given the uncertainty of wetland creation or

restoration, it is unlikely that the Service would support a project

proposal that would result in the destruction of large areas of

riparian habitat without first providing adequate replacement habitat

for the least Bell's vireos in the area.

Under section 4(b)(2) of the Act, the Secretary has the authority

to exclude an area from critical habitat designation ``* * * 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 and commercial data available,

that the failure to designate such area as critical habitat will result

in the extinction of the species concerned.'' The Gibraltar Reservoir

population of the vireo represents the northern edge of its current

range, and therefore is most likely to be the source of recolonization

to the north or to the Central Valley. Because of this geographical

significance, the designation of this area as critical habitat is

appropriate.

In any case, the proposed project to raise the height of Gibraltar

Dam is not currently being considered, since the city of Santa Barbara

is using economically feasible alternative water sources.

Issue 22: Critical habitat should not be designated because of

project delays due to lengthy permitting processes and the time

required to offset negative impacts before a project could be

constructed.

Service Response: For projects where unavoidable impacts to

unoccupied vireo habitat would occur, compensatory mitigation in the

form of habitat creation may have to be completed prior to the

destruction of existing habitat so that the vireo would not sustain a

net loss of available nesting or foraging habitat.

The amount of time for successful habitat creation would vary

depending on the methods used and could take several years. The action

agency or permit applicant would need to initiate the restoration

activities early enough to allow sufficient time for vireo habitat to

develop. Most major projects are in the planning stages long enough to

provide adequate time for advance habitat creation if the compensation

efforts are done expeditiously. Proper planning would reduce the

likelihood of a project delay.

Section 7 regulations require the Service to complete formal

consultation within 90 days of initiation and issue a biological

opinion within an additional 45 days. By policy and in practice, the

Service usually completes formal consultation within 90 days.

Issue 23: Designation of critical habitat is unnecessary because

nest parasitism by cowbirds and predation are responsible for the

decline of the vireo, rather than habitat loss. One commenter stated

that vireo habitat is plentiful, and efforts to conserve the species

should focus on other aspects of its ecology.

Service Response: Two major factors have been identified as being

responsible for the relatively recent, dramatic decline of the least

Bell's vireo: (1) Widespread habitat destruction, and (2) high rates of

nest parasitism by cowbirds (Goldwasser et al. 1980). The synergistic

effects of these two factors may have further exacerbated the

situation. Although cowbird removal programs have effectively solved

the problem of excessive parasitism at a number of locales, habitat

conservation and creation programs have not achieved the same level of

success. These programs eventually must be successful if conservation

and recovery of the vireo is to be achieved. To that end, the

designation of critical habitat affords a higher level of protection to

riparian woodland habitats that currently (or potentially could)

support nesting pairs of vireos. The Service considers this action

particularly appropriate in light of the inability of existing

regulatory mechanisms (e.g., the Clean Water Act, local regulations) to

adequately protect vireo habitat.

Issue 24: The critical habitat designation would result in more

stringent local permitting and approval processes.

Service Response: The Service has no authority to require local

agencies to implement land use restrictions consistent with the

regulations protecting designated critical habitat although the Service

would support such actions. The commenters who raised this issue are

land owners in San Diego County. The Service contacted the San Diego

County Department of Planning and Land Use (DPLU) with respect to this

issue and was informed that the DPLU does not anticipate any changes in

local ordinances as a result of critical habitat designation (T.

Oberbauer, County of San Diego, Department of Planning and Land Use,

pers. comm.).

Issue 25: The Service should not designate critical habitat on Camp

Pendleton Marine Corps Base because the Service and the Marine Corps

have signed a Memorandum of Understanding (MOU) that was designed to

accomplish the same degree of habitat protection as critical habitat

would provide. The management program for the least Bell's vireo on

Camp Pendleton eliminates the need for special management

considerations, and therefore, designation of critical habitat is

unnecessary.

Service Response: The Service believes that the MOU is providing an

adequate level of protection to the vireo and its habitat on Camp

Pendleton. Under the MOU, the Service agreed to offer technical

assistance and to consult under section 7 of the Act when requested.

The Marine Corps agreed to consult under section 7 of the Act on

activities that may affect the least Bell's vireo, to request formal

consultation on various programmatic issues such as road maintenance

and fire control, to maintain 1,200 acres (480 ha) of vireo quality

habitat along the Santa Margarita River, and to continue cowbird

trapping efforts (which were initiated in 1983) and nest monitoring

activities (which were initiated in 1981) as long as funding was

available.

The Santa Margarita River supported 1,200 acres of quality vireo

habitat and 98 territorial male least Bells' vireos when the MOU was

signed in 1986. Since 1986, the Marine Corps has continued cowbird

trapping efforts, and until 1991 carried out a thorough monitoring

program. The vireo population along the Santa Margarita River on Camp

Pendleton has increased from 98 to 212 territorial males from 1986 to

1991.

Although this area is essential to the conservation of the species,

the Service finds that a formal critical habitat designation is

unnecessary because the MOU contains provisions for section 7

consultation for proposed actions that may destroy or adversely modify

vireo habitat. The Service also finds that a level of protection

equivalent to or greater than that provided by a critical habitat

designation can be achieved for the vireo on this portion of the Santa

Margarita River through cooperation with the Marine Corps under the

MOU. However, the Service will reconsider its position to designate

critical habitat at this locality if conditions warrant. The Service

will use its authority under sections 7 and 9 of the Act to insure

compliance with the prohibitions on unauthorized take. For these

reasons, the Service has removed about 9,600 acres (3,840 ha) on Camp

Pendleton from the critical habitat designation.

National Environmental Policy Act

The Service has determined that an Environmental Assessment, as

defined under the authority of the National Environmental Policy Act of

1969, need not be prepared in connection with regulations adopted

pursuant to section 4(a) of the Endangered Species Act of 1973, as

amended. A notice outlining the Service's reasons for this

determination was published in the Federal Register on October 25, 1983

(48 FR 49244).

Regulatory Flexibility Act and Executive Order 12866

This rule has been reviewed under Executive Order 12866. The

Department of the Interior has determined that this designation will

not have a significant economic effect on a substantial number of small

entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.).

Based on the information discussed in this rule concerning public

projects and private activities within the critical habitat areas, it

is not expected that significant economic impacts will result from the

critical habitat designation. In addition, there are a limited number

of actions on private land that have Federal involvement through funds

or permits that would affect or be affected by the critical habitat

designation; the potential economic impact of the critical habitat

designation on these actions will be minor. Also, no direct costs,

enforcement costs, or information collection or recordkeeping

requirements are imposed on small entities by this designation. This

action does not impose any recordkeeping requirements as defined by the

Paperwork Reduction Act of 1980.

References Cited

Barry, D., L. Harroun, and C. Halverson. 1992. For conserving listed

species, talk is cheaper than we think: The consultation process

under the Endangered Species Act. World Wildlife Fund, Washington,

DC.

Franzreb, K.E. 1989. Ecology and conservation of the endangered

least Bell's vireo. U.S. Fish and Wildl. Serv., Biol. Rep. 89(1). 17

pp.

Gaines, D. 1974. A new look at the nesting riparian avifauna of the

Sacramento Valley, California. Western Birds 5:61-79.

Gaines, D. 1977. The status of selected riparian forest birds in

California. Unpubl. rep. California Department of Fish and Game,

Sacramento, California. 56 + viii pp.

Goldwasser, S. 1978. Distribution, reproductive success and impact

of nest parasitism by brown-headed cowbirds on least Bell's vireos.

California Department of Fish and Game, Nongame Wildlife

Investigations, Job IV-1.5.1. 27 pp.

Goldwasser, S., D. Gaines, and S. Wilbur. 1980. The least Bell's

vireo in California: A de facto endangered race. American Birds

34:742-745.

Gray, M.V., and J. Greaves. 1984. Riparian forest as habitat for the

least Bell's vireo. Pages 605-611 in R. Warner and K. Hendrix, eds.

California riparian systems: Ecology, conservation and productive

management. University of California Press, Davis.

Grinnell, J., and A. Miller. 1944. The distribution of the birds of

California. Pacific Coast Avifauna 27. 608 pp.

Kus, B.E., and K.L. Miner. 1987. Foraging behavior of the least

Bell's vireo: Use of riparian and non-riparian habitats. Unpubl.

rep. San Diego State University, San Diego, California. 22 pp.

Newhall Land and Farming Company. 1992. Public comments submitted to

the Fish and Wildlife Service on November 5, 1992, regarding the

revised proposed rule to designate critical habitat for the least

Bell's vireo.

RECON (Regional Environmental Consultants). 1989. Comprehensive

species management plan for the least Bell's vireo (Vireo bellii

pusillus). Unpubl. rep. prepared for the San Diego Association of

Governments, San Diego, California. Salata, L. 1983. Status of the

least Bell's vireo on Camp Pendleton, California. Unpubl. rep. U.S.

Fish and Wildlife Service, Laguna Niguel, California. 62 pp.

Salata, L. 1987. The status of the least Bell's vireo at Camp

Pendleton, California in 1987. Unpubl. rep. U.S. Marine Corps, Camp

Pendleton, California. 43 pp.

U.S. Fish and Wildlife Service. 1992. Economic analysis of critical

habitat designation for the least Bell's vireo. Unpubl. rep. on file

at U.S. Fish and Wildlife Service, Carlsbad, California. 115 pp.

Wilbur, S. 1980. Status report on least Bell's vireo. Unpubl. rep.

U.S. Fish and Wildlife Service, Portland, Oregon. 46 pp.

Authors

This rule was prepared by Service staff from the Carlsbad Field

Office, 2730 Loker Avenue West, Carlsbad, California 92008 (telephone:

619/431-9440) and the Region 1 Regional Office, 911 NE 11th Avenue,

Portland, Oregon 97232-4181 (telephone: 503/231-6131).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

recordkeeping requirements, Transportation.

Regulation Promulgation

Accordingly, part 17, subchapter B of chapter I, title 50 of the

Code of Federal Regulations, is amended as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.

4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

Sec. 17.11 [Amended]

2. Amend Sec. 17.11(h) by revising the ``Critical habitat'' entry

for ``Vireo, least Bell's,'' under BIRDS to read ``17.95(b)''.

3. Amend Sec. 17.95(b) by adding critical habitat for the least

Bell's vireo in the same alphabetical order as the species occurs in

Sec. 17.11(h).

Sec. 17.95 Critical habitat--fish and wildlife.

* * * * *

(b) * * *

LEAST BELL'S VIREO (Vireo bellii pusillus)

California: Areas of land and water as follows:

TR02FE94.005

1. Santa Ynez River, Santa Barbara County (Index map location

A).

T. 5 N., R. 27 W.: secs. 1, W\1/2\, and 12, all except NE\1/4\.

In addition, all adjacent lands within the following circumscribed

area: beginning at a point 0.25 mi south of the northeast corner of

sec. 12, T. 5 N., R. 27 W.; thence east about 0.5 mi; thence north

about 1.25 mi; thence east approximately 1.3 mi to the intersection

of Mono Creek and the Los Prietos Y Najalayegua land grant boundary;

thence south about 2.5 mi; thence east approximately 2.6 mi to Agua

Caliente Creek (at a point about 0.4 mi north and 0.1 mi east of the

Pendola Guard Station); thence south about 0.5 mi; thence east about

1.0 mi; thence south about 0.25 mi; thence east about 0.5 mi; thence

south about 0.75 mi to the southwest corner of T. 5 N., R. 25 W.,

sec. 19; thence east to the southeast corner of T. 5 N., R. 25 W.,

sec 20; thence south about 0.63 mi; thence west to western boundary

of T. 5 N., R. 26 W., sec. 25; thence south about 0.16 mi; thence

west to eastern boundary of T. 5 N., R. 26 W., sec. 27; thence north

about 0.25 mi; thence west to western boundary of T. 5 N., R. 26 W.,

sec. 27; thence north to the northeastern corner of T. 5 N., R. 26

W., sec. 27; thence north to the northeastern corner of T. 5 N., R.

26 W., sec. 28; thence west to the northwest corner of T. 5 N., R.

26 W., sec. 28; thence north to the northeast corner of T. 5 N., R.

26 W., partially unsurveyed sec. 20; thence west to the northeast

corner of T. 5 N., R. 26 W., unsurveyed sec. 19; thence north about

0.5 mi; thence west to the southeast corner of T. 5 N., R. 27 W.,

sec. 13, NE\1/4\; and thence north to the southeast corner of T. 5

N., R. 27 W., sec. 12.

TR02FE94.006

2. Santa Clara River, Los Angeles and Ventura Counties (Index

map location B).

T. 4 N., Rs. 17 and 18 W.: all land within 3,500 feet

perpendicularly and generally southward or westward of a line

commencing at a point 100 yards west of BM 740 (a point about 2.3 mi

east of the intersection of Main Street and State Highway 126 in

Piru); thence east along State Highway 126 to its intersection with

The Old Road at Castaic Junction; and thence eastward and southward

along The Old Road to its intersection with Rye Canyon Road.

TR02FE94.007

3. Santa Ana River, Riverside and San Bernardino Counties (Index

map location C).

All lands below the 543-foot contour in partially surveyed T. 3

S., R. 7 W., within the Prado Flood Control Basin (upstream from

Prado Dam). In addition, the following adjacent lands above the 543-

foot contour in the Santa Ana River bottom and within the following

boundaries: commencing at a point 0.1 mi east and 0.2 mi north of

the southwest corner of sec. 2, T. 3 S., R. 7 W.; thence north about

0.4 mi; thence to a point 0.25 mi east and 0.4 mi north of southwest

corner of sec. 31, T. 2 S., R. 6 W.; thence to the northeast corner

of sec. 31, T. 2 S., R. 6 W.; thence east 0.35 mi; thence to

midpoint of southern section line of sec. 21, T. 2 S., R. 6 W.;

thence to a point 0.6 mi south of the northwest corner of sec. 25,

T. 2 S., R. 6 W.; thence east about 0.6 mi; thence to a point 0.2 mi

north of the center of sec. 30, T. 2 S., R. 5 W.; thence east about

0.7 mi; thence to a point 0.6 mi east of the southwest corner of

sec. 20, T. 2 S., R. 5 W.; thence east about 0.8 mi; thence 0.6 mi

south; thence to a point 0.3 mi north of the southwest corner of

sec. 28, T. 2 S., R. 5 W.; thence to a point 0.45 mi north of the

southwest corner of sec. 29, T. 2 S., R. 5 W.; thence generally

westward and southward along the Riverside Corporation Boundary (as

shown on USGS Riverside Quadrangle 1980) to its intersection with

Van Buren Blvd.; thence to a point 0.2 mi east and 0.75 mi south of

the northwest corner of sec. 27, T. 2 S., R. 6 W.; thence 0.25 mi

north; thence 0.7 mi west; thence to a point 0.85 mi north of the

southwest corner of sec. 32, T. 2 S., R. 6 W.; thence to a point

0.75 mi west and 0.1 mi south of the northeast corner of sec. 6, T.

3 S., R. 6 W.; thence 0.5 mi west; and thence to the 543-foot

contour at a point 0.3 mi west of the southeast corner of sec. 2, T.

3 S., R. 7 W.

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TR02FE94.008

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TR02FE94.009

4. Coyote Creek, San Diego County (Index map location D).

T. 9 S., R. 5 E.: secs. 22, N\1/2\, SE\1/4\; and 23, SW\1/4\.

TR02FE94.010

5. Santa Margarita River, San Diego County (Index map location

E).

T. 9 S., R. 3 W.: secs. 4, all lands below the 600-foot contour;

5 SE\1/4\; 7; and 8.

In T. 9 S., R. 4 W., Sec. 12 E\1/2\; 13 NE\1/4\.

TR02FE94.011

6. San Luis Rey River, San Diego County (Index map location F).

T. 11 S., R. 5 W.: secs. 13, S\1/2\NE\1/4\, SE\1/4\NW\1/4\,

SW\1/4\; 14, SE\1/4\SW\1/4\, S12SE\1/4\; and 23, NW\1/4\.

T. 11 S., R. 4 W.: secs. 3, all land north of Murray Road; 4,

E\1/2\NE\1/4\, E\1/2\SE\1/4\SW\1/4\, W\1/2\NE\1/4\SE\1/4\, E\1/

2\NW\1/4\SE\1/4\, SW\1/4\SE\1/4\; 7, N\1/2\NE\1/4\NE\1/4\, NW\1/

4\NE\1/4\, E\1/2\W\1/2\, SW\1/4\SW\1/4\; 8, N\1/2\NE\1/4\, N\1/

2\N\1/2\NW\1/4\; 9, N\1/2\NW\1/4\; and 18, NW\1/4\.

T. 10 S., R. 4 W.: sec. 34, S1/2SW\1/4\.

Surveyed and unsurveyed portions according to the following

metes and bounds: bordered on the north by a line commencing at the

intersection of North River Road and the surveyed eastern section

line of sec. 3, T. 11 S., R. 4 W.; thence east along said road to

its junction with Via Puerta Del Sol; thence east approximately 0.5

mi to State Highway 76 nearest the midpoint of sec. 31, T. 10 S., R.

3 W.; thence northward and eastward along said highway to its

intersection with the eastern section line of sec. 27, T. 9 S., R. 2

W.; and bordered on the south by a line commencing at the

intersection of Murray Road and the surveyed eastern section line of

sec. 3, T. 11 S., R. 4 W.; thence southward and eastward along said

road to its junction with State Highway 76; thence eastward and

northward along said highway to its junction with Santa Fe Avenue;

thence southeastward 3,000 feet along said avenue; thence northward

along a straight line to Guajome Lake Road at a point 800 feet from

the junction of said road and State Highway 76; thence northwestward

along Guajome Lake Road to its junction with said highway; thence

eastward along said highway to its junction with River Road in sec.

31, T. 10 S., R. 3 W.; thence northward along said road to its

intersection with the surveyed eastern section line of sec. 20, T.

10 S., R. 3 W.; thence north to and northeasterly along the 250-foot

contour in sec. 21 through partially surveyed sec. 15, T. 10 S., R.

3 W.; thence north to a point about 0.2 mi south of the northwest

corner of sec. 14 and continuing along the 300-foot contour from the

western section line of sec. 14 eastward through unsurveyed sec. 11,

surveyed secs. 13 and 12, T. 10 S., R. 3 W.; and surveyed sec. 18,

T. 10 S., R. 2 W.; thence east to and along the 325-foot contour

through sec. 1, T. 10 S., R. 3 W.; thence south to and along the

350-foot contour in secs. 6 and 5, T. 10 S., R. 2 W., and secs. 32

and 33, T. 9 S., R. 2 W., to the northern section line of sec. 33;

thence east approximately 1.5 mi to the southeastern corner of sec.

27, T. 9 S., R. 2 W.; and thence north about 0.4 mi to State Highway

76 in Pala.

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TR02FE94.012

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7. San Diego River, San Diego County (Index map location G).

T. 15 S., Rs. 1 and 2 W.: commencing at the intersection of the

Second San Diego Aqueduct and Mission Gorge Road; thence eastward

along said road to the western-most intersection with Father

Junipero Serra Trail; thence northward and eastward along said trail

to the eastern-most intersection of said trail and said road; thence

eastward along Mission Gorge Road to its intersection with Carlton

Hills Blvd.; thence northward to its intersection with Carlton Oaks

Drive; thence westward along said drive to its eastern-most

intersection with Inverness Road; thence westward along said road to

its intersection with Carlton Oaks Drive; thence westward along said

drive to its intersection with Mast Street; thence westward and

southward along the 320-foot contour to its intersection with the

Second San Diego Aqueduct on the north side of the San Diego River;

thence southeastward along said aqueduct to its intersection with

Mission Gorge Road.

TR02FE94.013

8. Sweetwater River, San Diego County (Index map location H).

T. 16 and 17 S., R. 1 W.: commencing at the intersection of the

320-foot contour and 116o58 deg.14'' W longitude immediately north

of the confluence of Sweetwater River and Sweetwater Reservoir;

thence eastward along the contour to the intersection of said

contour with State Highway 94; thence northward along said highway

to its intersection with State Highway 54; thence northeastward

along said highway to the San Bernardino Meridian; thence south

approximately 1,500 feet to the intersection with the 340-foot

contour; thence westward and southward along said contour to the

south end of the Steele Canyon Bridge on State Highway 94; thence

south approximately 900 feet to the 340-foot contour; thence

southwesterly along said contour to its intersection with

116 deg.58 deg.14'' W longitude; thence north to starting point.

[Insert Map # 9 here]

9. Jamul-Dulzura Creeks, San Diego County (Index map location

I).

T. 17 and 18 S., R. 1 E.: commencing from a point approximately

2,200 feet west of BM 515 along Otay Lakes Road, in sec. 5, T. 18

S., R. 1 E.; thence east approximately one mile to the crossing of

said road at a bridge over Jamul Creek, including all land within

1,500 feet southward of Otay Lakes Road as measured perpendicularly

from the road; thence eastward for about 2.4 mi along said road and

including all lands within 1,500 feet northward of said road as

measured perpendicularly from the road, and including all lands

within 500 feet of said bridge not otherwise included above.

TR02FE94.014

10. Tijuana River, San Diego County (Index map location J).

T. 18 S., R. 2 W.: secs. 34, S\1/2\SE\1/4\SE\1/4\; and 35, S\1/

2\SW\1/4\, SW\1/4\SW\1/4\SE\1/4\.

T. 19 S., R. 2 W.: secs. 1, W\1/2\SW\1/4\NW\1/4\; 2, S\1/2\NE\1/

4\NE\1/4\, NW\1/4\NE\1/4\, N\1/2\SE\1/4\NE\1/4\, N\1/2\NE\1/4\NW\1/

4\, W\1/2\NW\1/4\; 3, N\1/2\; and 4, NE\1/4\, N\1/2\NW\1/4\.

TR02FE94.015

Primary constituent elements: riverine and floodplain habitats

(particularly willow-dominated riparian woodland with dense

understory vegetation maintained, in part, in a non-climax stage by

periodic floods or other agents) and adjacent coastal sage scrub,

chaparral, or other upland plant communities.

Dated: October 12, 1993.

Richard N. Smith,

Acting Director, U.S. Fish and Wildlife Service.

[FR Doc. 94-2304 Filed 2-1-94; 8:45 am]

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