Endangered and Threatened Wildlife and Plants; Final Rule To List the San Bernardino Kangaroo Rat as Endangered

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AE59

Endangered and Threatened Wildlife and Plants; Final Rule To List

the San Bernardino Kangaroo Rat as Endangered

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Fish and Wildlife Service (Service) determines the

San Bernardino kangaroo rat (Dipodomys merriami parvus) to be an

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

amended (Act). This subspecies now occurs primarily in alluvial scrub

habitats with appropriate vegetative cover and substrate composition.

The historical range of the San Bernardino kangaroo rat has been

reduced by approximately 95 percent due to agricultural, urban, and

industrial development. Threats to all of the remaining populations of

the San Bernardino kangaroo rat include habitat loss, destruction,

degradation, and fragmentation due to sand and gravel mining

operations, flood control projects, urban development, off-highway

vehicle (OHV) use, or some combination of these. In addition, the three

largest remaining populations of this subspecies are endangered due to

their small size, and habitat loss caused by changes in the natural

stream flow regime, including seasonal flooding and associated

modification of plant succession patterns. This action continues

protection for the San Bernardino kangaroo rat, which was effective for

a 240-day period beginning when this species was emergency listed on

January 27, 1998.

DATES: This rule is effective on September 24, 1998.

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: Ken S. Berg, Field Supervisor, at the

above address (telephone 760/431-9440).

SUPPLEMENTARY INFORMATION:

Background

The San Bernardino kangaroo rat (Dipodomys merriami parvus) is one

of 19 recognized subspecies of Merriam's kangaroo rat (D. merriami), a

widespread species distributed throughout arid regions of the western

United States and northwestern Mexico (Hall 1981, Williams et al.

1993). In coastal southern California, D. merriami is the only species

of kangaroo rat with four toes on both of its hind feet. The San

Bernardino kangaroo rat has a body length of about 95 millimeters (mm)

(3.7 inches (in)) and a total length of 230 to 235 mm (9 to 9.3 in).

The hind foot measures less than 36 mm (1.4 in) in length. The body

color is weakly ochraceous (yellow) with a heavy overwash of dusky

brown. The tail stripes are medium to dark brown and the foot pads and

tail hairs are dark brown. The flanks and cheeks of the subspecies are

dusky (Lidicker 1960). The San Bernardino kangaroo rat is considerably

darker and much smaller than either of the other two subspecies of

Merriam's kangaroo rat in southern California, D. merriami merriami and

D. merriami collinus. Lidicker (1960) noted that the San Bernardino

kangaroo rat is one of the most highly differentiated subspecies of D.

merriami and that ``it seems likely that it has achieved nearly species

rank.'' This differentiation is likely due to its apparent isolation

from other members of D. merriami.

The San Bernardino kangaroo rat, a member of the family

Heteromyidae, was first described by Rhoades in 1894 under the name

Dipodomys parvus from specimens collected by R.B. Herron in Reche

Canyon, San Bernardino County, California (Hall 1981). Elliot reduced

D. parvus to a subspecies of D. merriami (D. merriami parvus) in 1901.

Hall (1981) and Williams et al. (1993) have confirmed this taxonomic

treatment of the species.

The San Bernardino kangaroo rat appears to be separated from

Merriam's kangaroo rat (D. merriami merriami) at the northernmost

extent of its range near Cajon Pass by a 8 to 13 kilometer (km) (5 to 8

mile (mi)) gap of unsuitable habitat. The San Bernardino kangaroo rat

may have in the distant past also intergraded with D. merriami collinus

to the south in the vicinity of Menifee in Riverside County (Lidicker

1960, Hall 1981).

The historical range of this subspecies extends from the San

Bernardino Valley in San Bernardino County to the Menifee Valley in

Riverside County (Lidicker 1960, Hall 1981). Within this range, the San

Bernardino kangaroo rat was known from over 25 localities (McKernan

1993). From the early 1880's to the early 1930's, the San Bernardino

kangaroo rat was a common resident of the San Bernardino and San

Jacinto valleys of southern California (Lidicker 1960).

In most heteromyids, soil texture is a primary factor in

determining species' distributions (Brown and Harney 1993). San

Bernardino kangaroo rats are found primarily on sandy loam substrates,

characteristic of alluvial fans and flood plains, where they are able

to dig simple, shallow burrows (McKernan 1997). Based on the

distribution of suitable (i.e., sandy) soils and the historical

collections of this subspecies, the historical range is thought to have

encompassed an area of approximately 130,587 hectares (ha) (326,467

acres (ac)) (Service unpub. GIS maps, 1998). Although the entire area

of the historical range would not have been occupied due to variability

in vegetation and soils, the San Bernardino kangaroo rat was apparently

widely distributed across this area. By the 1930's, the habitat had

been reduced to approximately 11,200 ha (28,000 ac) (McKernan 1997).

In 1997, the San Bernardino kangaroo rat was known to occupy

approximately 1,299 ha (3,247 ac) of suitable habitat divided unequally

among seven locations, which are widely separated from one another

(McKernan 1997). Four of these locations (City Creek (8 ha (20 ac)),

Etiwanda (2 ha (5 ac)), Reche Canyon (2 ha (5 ac)), and South

Bloomington (0.8 ha (2 ac))) support only small, remnant populations

(McKernan 1997). The remaining three locations (the Santa Ana River

(690 ha (1,725 ac)), Lytle and Cajon washes (456 ha (1,140 ac)), and

San Jacinto River (140 ha (350 ac))) contain the largest extant

concentrations of kangaroo rats and blocks of suitable habitat

(McKernan 1997, Service unpub. GIS maps 1998).

Based on further review of available information, the Santa Ana

River, Lytle and Cajon washes, and the San Jacinto River are estimated

to have additional habitat that is likely occupied, at least in part,

by the San Bernardino kangaroo rat (Service unpub. GIS maps, 1998).

Based on this review, the Santa Ana River contains approximately 2,090

ha (5,224 ac) of which approximately 545 ha (1,363 ac) have too much

cover or are otherwise degraded (e.g., percolation ponds). Lytle and

Cajon washes have approximately 2,787 ha (6,967 ac) of which

approximately 722 ha (1,806 ac) have too much cover or are otherwise

degraded (e.g., shielded from flood events). The San Jacinto River has

approximately 401 ha (1,002 ac) of which approximately 91 ha (227 ac)

have too much cover or are otherwise degraded (e.g., too frequent of

flows).

[[Page 51006]]

The three largest remaining blocks of suitable habitat (i.e., Santa

Ana River, Lytle/Cajon creeks, and San Jacinto River) (Fish and

Wildlife Service unpub. GIS maps, 1998; McKernan 1997) are distributed

across a mosaic of approximately 5,277 ha (13,193 ac) of typically

suitable, alluvial soils dominated by sage scrub and chaparral.

Approximately 1,358 ha (3,396 ac) of this area has a vegetation that is

more mature than the open, early successional habitat structure

required by the San Bernardino kangaroo rat, or is otherwise degraded.

Therefore, only about 3,919 ha (9,797 ac) of these areas appear to be

suitable for this subspecies at this time. The Service considers this

suitable habitat to be occupied given the San Bernardino kangaroo rat's

affinity for sandy soils and low vegetative cover (McKernan 1997).

Existing and proposed hydrological modifications to the river

systems eliminate habitat renewal and obstruct population recovery over

these highly fragmented wash habitats (Hanes et al. 1989, McKernan

1997). Based on information concerning future flows in the Santa Ana

River (U.S. Army Corps of Engineers (Corps) 1988), a minimum of 80

percent (i.e., 1,672 ha (4,179 ac)) of the alluvial scrub (2,090 ha

(5224 ac)) is now shielded from fluvial renewal. Based on more recent

information (Corps 1998), approximately 90 percent (1,881 ha (4,702

ac)) of this area is at risk due to projected changes in the hydrology

of this area. Thus, of the remaining habitat, only about 3,396 ha

(8,491) are ever likely to be subject to frequent (i.e., 50-100-year

event) fluvial renewal. The balance of the residual habitat would

require a catastrophic flood (i.e., greater than 100-year event), or

intensive management, to maintain a possibility of persistence.

Conversely, large-scale flooding also poses a threat to populations of

San Bernardino kangaroo rats that are almost entirely confined to

fluvial systems (e.g., San Jacinto River).

The San Bernardino kangaroo rat is now primarily associated with a

variety of sage scrub vegetation, where the common elements are the

presence of sandy soils and relatively open vegetation structure

(McKernan 1997). Where the San Bernardino kangaroo rat occurs in

alluvial scrub, the subspecies reaches its highest densities in early

and intermediate seral stages (McKernan 1997). Alluvial scrub includes

elements from chaparral, coastal sage, and desert communities. Three

successional phases of alluvial scrub have been described: pioneer,

intermediate, and mature alluvial scrub. The distribution of these

phases is influenced by elevation, distance from the main channels, and

the time since previous flooding (Smith 1980, Hanes et al. 1989).

Vegetation cover generally increases with distance from the active

stream channel. The pioneer, or youngest phase, is subject to frequent

disturbance, and vegetation is usually renewed by annual floods (Smith

1980, Hanes et al. 1989). The intermediate phase, defined as the area

between the active channel and mature terraces, is subject to periodic

flooding at longer intervals. The vegetation on intermediate terraces

is relatively open, and supports the highest densities of the San

Bernardino kangaroo rat. The mature phase is rarely affected by

flooding and supports the highest plant cover (Smith 1980). Flood

events break out of the main river channel in a complex pattern,

resulting in a braided appearance to the flood plain. This dynamic

nature to the habitat leads to a situation where not all the alluvial

scrub habitat is suitable for the kangaroo rat at any point in time.

The San Bernardino kangaroo rat, like other subspecies of Merriam's

kangaroo rat, prefers open habitats characterized by low shrub canopy

cover (mostly 7 to 22 percent) and rarely occurs in dense vegetation

(McKernan 1997). The older seral stages of the flood plain vegetation

are generally less suitable for this subspecies.

The range of the San Bernardino kangaroo rat partially overlaps the

distribution of the Stephens' kangaroo rat (Dipodomys stephensi) and

its range is entirely overlapped by the Pacific kangaroo rat (D.

simulans). Where these species occur in proximity, they are usually

concentrated in different areas. The Stephens' kangaroo rat typically

is associated with open, arid, grassland associations (Lackey 1967,

O'Farrell et al. 1986, O'Farrell and Uptain 1987, O'Farrell 1990), and

occurs on a variety of soil types. In contrast, the Pacific kangaroo

rat typically inhabits areas possessing greater shrub cover. All three

of these subspecies can be distinguished from one another based on

morphological characters.

Home ranges for the Merriam's kangaroo rat average 0.33 ha (0.8 ac)

for males and 0.31 ha (0.8 ac) for females (Behrends et al. 1986). Long

sallies (bursting movements) of 100 meters (m) (328 feet (ft)) or more

beyond these ranges are not uncommon. Although outlying areas of their

home ranges may overlap, adults actively defend small core areas near

their burrows (Jones 1993). Home range overlap between males and

between males and females is extensive, but female-female overlap is

slight (Jones 1993). McKernan (1993) found pregnant San Bernardino

kangaroo rats from February through October, and immature individuals

from April through September. Some females may produce more than one

litter per year. Litter size averages between two and three young

(Eisenberg 1993).

Similar to other kangaroo rats, the San Bernardino kangaroo rat is

primarily granivorous and often stores large quantities of seeds in

surface caches (Reichman and Price 1993). Green vegetation and insects

are also important seasonal food sources. Insects, when available, have

been documented to constitute as much as 50 percent of a kangaroo rat's

diet (Reichman and Price 1993). Females are known to increase ingestion

of foods with higher water content during lactation, presumably to

compensate for the increased water loss associated with milk production

(Reichman and Price 1993). Dipodomys merriami are known for their

ability to live indefinitely without water on a diet consisting

entirely of dry seeds (Reichman and Price 1993).

Previous Federal Action

The San Bernardino kangaroo rat was designated by the Service as a

category 2 candidate species for Federal listing as endangered or

threatened in 1991 (56 FR 58804). Category 2 comprised taxa for which

information in the possession of the Service indicated that proposing

to list as endangered or threatened was possibly appropriate, but for

which data on biological vulnerability and threat(s) were not available

to support a proposed rule. Based on a review of status and

distribution of the San Bernardino kangaroo rat, the subspecies was

upgraded to a category 1 candidate for listing in 1994 (59 FR 58982).

Category 1 candidate species were those species for which the Service

had sufficient information on biological vulnerability and threat(s) to

support proposals to list them as endangered or threatened species.

Upon publication of the February 28, 1996, Notice of Review (61 FR

7596), the Service ceased using category designations and included the

San Bernardino kangaroo rat as a candidate species. The San Bernardino

kangaroo rat was retained as a candidate species in the September 19,

1997, Notice of Review (62 FR 49401). The San Bernardino kangaroo rat

was emergency listed as endangered on January 27, 1998; concurrently, a

proposal to make provisions of the emergency listing permanent also was

published (63 FR 3837 and 63 FR 3877).

The processing of this final rule conforms with the Service's final

listing priority guidance published in the Federal Register on May 8,

1998 (63 FR

[[Page 51007]]

25502). The guidance clarifies the order in which the Service will

process rulemakings. The guidance calls for giving highest priority to

handling emergency situations (Tier 1). Second priority (Tier 2) is

given to processing final determinations on proposed additions to the

lists of endangered and threatened wildlife and plants; the processing

of new proposals to add species to the lists; the processing of

administrative petition findings to add species to the lists, delist

species, or reclassification of listed species (per petitions filed

under section 4 of the Act); and a limited number of delisting and

reclassifying actions. Processing of proposed or final designations of

critical habitat are accorded the lowest priority (Tier 3). This final

rule constitutes a Tier 2 action.

Summary of Comments and Recommendations

In the proposed rule (63 FR 3877), all interested parties were

requested to submit factual reports or information that might

contribute to the development of a final rule for the San Bernardino

kangaroo rat. Appropriate State agencies, County governments, Federal

agencies, scientific organizations, and other interested parties were

contacted and requested to comment. Legal notices were published in the

Riverside Press Enterprise and the San Bernardino Sun on February 5,

1998, and invited general public comment on the proposal. In

anticipation of public interest, the Service conducted a public hearing

consisting of two sessions on March 3, 1998 in San Bernardino,

California.

During the 3-month comment period, including the public hearing,

the Service received a total of 56 comments (multiple comments from the

same party on the same date were regarded as one comment). Of these

comments, 29 (51 percent) supported the listing, 14 (24.5 percent)

opposed the listing, and 14 (24.5 percent) were noncommittal.

The Service reviewed all of the comments (i.e., written and oral

testimony) referenced above. The comments were grouped and are

discussed under the following issue headings. In addition, all

biological and commercial information obtained through the public

comment period has been considered and incorporated, as appropriate,

into the final rule.

Issue 1: Several commenters requested that the population of San

Bernardino kangaroo rats on the Santa Ana River not be listed as an

endangered species. One of these commenters recommended that the animal

be listed as threatened with a special rule pursuant to section 4(d) of

the Act.

Service Response: Threatened status would not accurately reflect

the current threats to or status of the subspecies as a whole or of the

subpopulation remaining along the Santa Ana River (See ``Status and

Distribution'' and ``Summary of Factors Affecting the Species''

sections of this rule and the summary conclusion below for further

discussion of this issue). In addition, sections 10 and 7 of the Act

provide flexibility for project approval and the incidental take of

endangered species under certain conditions (e.g., when the proposed

action is not likely to jeopardize the species' continued existence).

Issue 2: Several of the commenters contended that the San

Bernardino kangaroo rat should not be listed as an endangered species

because the threats facing the kangaroo rat were overstated in the

proposed rule.

Service Response: The San Bernardino kangaroo rat's historic range

has been reduced by approximately 95 percent due to agriculture, urban,

and industrial development. In addition, all of the remaining

populations are at risk due to either habitat loss, degradation, and

fragmentation from sand and gravel mining operations; flood control

projects; urban development; OHV activity; or a combination of these

factors. Moreover, the three largest remaining populations are

threatened by their small size and habitat changes caused by human

modification of the fluvial system.

Issue 3: Several commenters stated that the threat posed by

vandalism or grading of habitat, which was cited in the emergency rule

as justification for the immediate listing of the San Bernardino

kangaroo rat, was overstated.

Service Response: At the time the Service published the emergency

and proposed rules, the Service believed that publication of a proposed

listing alone likely would ``elicit preemptive grading.'' The Service's

reason for this conclusion was detailed in the emergency rule in the

Reason for Emergency Determination section (63 FR 3840). Since

publication of the emergency rule, habitat destruction has been

prevented, and lands inhabited by the San Bernardino kangaroo rat are

protected under the emergency listing provision of the Act. The area

once threatened by vandalism or grading has not been damaged. However,

the San Bernardino kangaroo rat remains vulnerable to vandalism should

negative public perceptions and attitudes reappear because of the final

listing action. (see the ``Summary of Factors Affecting the Species''

and ``Critical Habitat'' sections of this rule for a more thorough

discussion of threats). The Service must consider even verbal threats

of habitat destruction and/or vandalism when conserving critically

imperilled species, and must act on such threats.

Issue 4: Several of the commenters stated that inadequate

information was used to propose the animal as an endangered species. In

addition, they felt the Service relied too heavily on the report

prepared by McKernan (1997) in drafting the proposed rule.

Service Response: The Service is required to base listing decisions

on the best available scientific and commercial information. In this

regard, the Service reviewed information from the scientific

literature, and commercial information (e.g., California Environmental

Quality Act (CEQA) documents), as well as McKernan (1997). Based on

this information, the Service concludes that the San Bernardino

kangaroo rat is in danger of extinction throughout a significant

portion of its range. In addition, no new information was submitted

during the public comment period, or at the public hearing, that

indicated other viable populations of this animal existed or that the

remaining populations were not at risk. The Service is unaware of any

data that would lead to a conclusion that the San Bernardino kangaroo

rat does not warrant listing under the Act.

Issue 5: Several of the commenters stated that due to errors in the

technical descriptions of San Bernardino kangaroo rat locations (e.g.,

township and range) contained in McKernan (1997), the report could not

be relied upon in assessing threats to the San Bernardino kangaroo rat.

In addition, these commenters recommended that the technical errors be

corrected prior to the Service making a final determination on whether

or not to list the San Bernardino kangaroo rat as endangered.

Service Response: Although some errors exist in the technical

descriptions regarding the locations of the San Bernardino kangaroo rat

under the ``Results and Discussion'' section of McKernan (1997), the

Service did not rely on the township and range information contained in

this report for determining the distribution of the San Bernardino

kangaroo rat. In addition, the Service disregarded township and range

information in assessing threats to the animal's continued existence.

The distribution of this species, at a landscape scale, has been

reduced significantly and the remaining

[[Page 51008]]

populations are at risk due to a variety of factors (see sections on

``Status and Distribution'' and ``Summary of Factors Affecting the

Species'' for further discussion of this issue). Therefore, it is

inappropriate to delay listing of this subspecies as endangered to

correct transcription errors in McKernan (1997).

Issue 6: One commenter stated that the Service had misrepresented

the decline of the San Bernardino kangaroo rat by assuming that all

habitat within the historic range of the species was occupied.

Service Response: As stated in the proposed rule, only portions of

the historic range would have been occupied at any one time due to

variability in the distribution of vegetation and soils. In fact, an

effort was made to more accurately portray the decline by not mapping,

or excluding from the analysis, some areas which could have been

occupied, but were unavailable because of soil unsuitability or lack of

connectivity to known occupied locales.

Issue 7: Several commenters contended that the continuing presence

of the San Bernardino kangaroo rat within channelized portions of the

San Jacinto River contradicts the Service's conclusion that

channelization of these areas is harmful to the persistence of the

animal.

Service Response: The presence of the San Bernardino kangaroo rat

in channelized areas does not necessarily indicate that channelization

does not have detrimental effects on the kangaroo rat's habitat.

Channelization has opened flood plain habitats to agricultural, urban,

and industrial development. In addition, channelization of flood plains

into narrow, monotypic channels has removed the physical structure

(i.e., terracing) of the active flood plain and areas of refugia. Based

on the current distribution, the San Bernardino kangaroo rat occupied

flood plain habitats as well as adjacent upland habitats containing

appropriate physical and vegetative characteristics. Therefore, animals

would have been available from upper tiers of the flood plain as well

as adjacent uplands to recolonize habitat that was flooded and scoured

during storm event(s). These refugia are no longer available, or have

been severely reduced because these areas have been converted into

agricultural fields, residential sites, and industrial developments.

Therefore, the remaining population of San Bernardino kangaroo rats

within the channelized portions of the San Jacinto River is at risk due

to flooding because of the subspecies' confinement to the active flood

plain.

Issue 8: Several commenters stated concern for maintaining the

ability to protect life and property if the San Bernardino kangaroo rat

was listed. In addition, these commenters were concerned that the

listing of the animal would prevent or seriously impare abilities to

operate and maintain current facilities and would hamper future

development.

Service Response: Listing of the San Bernardino kangaroo rat as an

endangered species will not prevent the protection of human life or

property. In the event of an emergency, the implementing regulations of

section 9 of the Act provide that, ``any person may take endangered

wildlife in defense of his own life or the lives of others.'' In

addition, the operation and maintenance of current facilities, and the

construction of future facilities, where there are conflicts with the

conservation of endangered species, can be addressed pursuant to

section 7 or 10 of the Act, as appropriate. For example, the

construction of Seven Oaks Dam, which was likely to adversely affect

the Santa Ana River wooly-star, a Federal endangered species, was

allowed to proceed in compliance with section 7 of the Act.

Issue 9: One commenter disagreed with the Service's estimation

concerning the area shielded from scouring events due to the operation

of Seven Oaks Dam, and stated that the Service had overstated the

threat.

Service Response: The Service based its estimation of the future

extent of scouring on information generated by the Corps. According to

this information, 100-year flows from the Santa Ana River would be

reduced to approximately 5,000 cubic feet per second (cfs)

(approximately equivalent to a 4-year rain event) below the dam and

through the habitat of the San Bernardino kangaroo rat. Therefore, the

majority of alluvial scrub, once subject to flood flows during 11-year

events from the Santa Ana River, will be shielded. On this basis, the

estimate of the flood plain at risk (80 percent) was considered

conservative. However, based on more recent information (Corps 1998),

approximately 90 percent of the flood plain is at risk due to projected

changes in the hydrology of the Santa Ana River.

Issue 10: One commenter asserted that the listing of the San

Bernardino kangaroo rat was unnecessary due to the overlap in its

distribution with Santa Ana River wooly-star (Eriastrum densifolium

ssp. sanctorum) and slender-horned spineflower (Dodecahema leptoceras).

Service Response: The partial overlap in distribution of the San

Bernardino kangaroo rat with Santa Ana River wooly-star and slender-

horned spineflower inadequately protects this animal because of

differences in spatial and temporal distributions of these species. The

prohibition for ``take'' under section 9 of the Act applies to wildlife

and does not protect plants from ``take'' on non-Federal lands. In

addition, due to changes in hydrology and the anthropogenic confinement

of the San Bernardino kangaroo rat to the active flood plain, the

concurrent distribution of the kangaroo rat with the two listed plant

species does not alleviate the threat facing this species due to

flooding and inundation of occupied habitat.

Issue 11: Several commenters suggested it was unlikely that Federal

listing of this population would result in protection beyond that

already provided by the California Environmental Quality Act (CEQA).

One of these commenters stated that CEQA already provided adequate

protection.

Service Response: Urban development and associated direct and

indirect effects, pose the most significant threat to threatened and

endangered species in California. Though such development is subject to

review under CEQA, CEQA alone does not adequately protect and conserve

species because the impacts of proposed projects are often not

recognized, overridden, or inadequately mitigated in the process (for a

more thorough discussion of this issue, see factors A and D). Federal

listing of the San Bernardino kangaroo rat will complement the

protection options available under State law through measures discussed

in the ``Available Conservation Measures'' section. The Service will

use established procedures to evaluate management actions necessary to

achieve recovery of the species and thereby avoid any undue

implementation delays. In addition, Federal listing would provide

additional resources for the conservation of the species through

sections 6 and 8 of the Act.

Issue 12: Several commenters stated that listing of the San

Bernardino kangaroo rat was unnecessary because effective voluntary

efforts exist for safeguarding this subspecies at no public cost.

Service Response: Voluntary efforts are important to conservation

of the San Bernardino kangaroo rat. To date however, these efforts have

not stabilized or reversed the destruction and degradation of habitat

essential to this subspecies' survival throughout its range. The

effects of activities, such as

[[Page 51009]]

sand and gravel mining, flood control activities, agricultural

activities, and urban and commercial development, continue to represent

imminent and tangible threats to this animal. The inadequacy of

existing regulatory mechanisms to stabilize or reverse the decline is

discussed under Factor D of the ``Summary of Factors Affecting the

Species'' section.

Issue 13: Several commenters stated that the Service has ignored

existing efforts to conserve the San Bernardino kangaroo rat and had,

in fact, undermined the conservation of the animal by publishing the

proposed rule.

Service Response: The Service strongly supports the establishment

of the multispecies planning process in San Bernardino and Riverside

counties, and the progress, to date, in the latter County. However,

these ongoing planning efforts are in the early stages and have yet to

address the conservation of habitat essential for the recovery of

listed species, including the San Bernardino kangaroo rat. Federal

listing will complement these conservation planning efforts (see, in

particular, the Service response to Issue 10).

Issue 14: Several commenters criticized the Service for failing to

address the economic impacts of listing the San Bernardino kangaroo

rat. One of these commenters stated that the San Bernardino kangaroo

rat should not be listed if it would stifle economic development.

Service Response: In accordance with 16 U.S.C. 1533(b)(1)(A) and 50

CFR 424.11(b), listing decisions are made solely on the basis of the

best scientific and commercial data available. In adding the word

``solely'' to the statutory criteria for listing a species, Congress

specifically addressed this issue in the 1982 amendments to the Act.

The legislative history of the 1982 amendments 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 and intends that the economic analysis

requirements of Executive Order 12291, and such statutes as the

Regulatory Flexibility Act and the Paperwork Reduction Act, not apply.

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.567, Part I, 97th Cong., 2d Sess. 20 (1982).

Issue 15: One commenter recommended that the Service designate

critical habitat.

Service Response: The Service has determined that designation of

critical habitat is unlikely to provide a net benefit to the

conservation of the San Bernardino kangaroo rat. For the San Bernardino

kangaroo rat, protection of habitat and other conservation actions are

better addressed through recovery planning and the section 7

consultation processes (see section on Critical Habitat for a more

thorough discussion of this issue).

Issue 16: Several of the commenters stated that estimated acreage

of the San Bernardino kangaroo rat's range found in Table 2 (McKernan

1997) did not agree with the estimated decline of the species' occupied

habitat identified in the proposed rule.

Service Response: The reason there is a difference in the estimated

acreage is the basic difference among the concepts of ``range,''

``potential occupied habitat,'' and ``occupied habitat.'' Occupied

habitat, in the case of many rodents, typically represents a subset of

a species' range because not all areas within the ``range'' are

suitable or occupied by the animal. In addition, occupied habitat

indicates that the animals were confirmed to be present and are

expected to still occur on site. The amount cited in the proposed rule

(i.e., 1,299 ha (3,247 ac)) refers to the estimated amount of known

``occupied habitat'' whereas the information from Table 2 in McKernan

(1997) represents coarser ``potential occupied habitat.'' It is

important to stress that even the acreage of ``occupied habitat'' is

imprecise because of--(1) issues of scale; (2) differences in

individual or populations' perception and use of habitat; and (3)

population dynamics influenced by a large number of ecological and

biological parameters.

Issue 17: One commenter argued that the Service lacked authority to

list the San Bernardino kangaroo rat under the Act because there is no

interstate commerce involving this animal.

Service Response: In accordance with 16 U.S.C. 1533(b)(1)(A) and 50

CFR 424.11(b), listing decisions are made solely on the basis of the

best scientific and commercial data available. In a recent court ruling

(December 1997), the U.S. Court of Appeals for the District of Columbia

upheld the listing of the Delhi sands flower-loving fly under the Act.

The court stated that the loss of species has a substantial effect on

interstate commerce by diminishing a natural resource that could

otherwise be used for present and future commercial purposes. Following

this court decision, the Supreme Court refused the plaintiffs' request

that they hear the case. Importantly, the distribution of the Delhi

sands flower-loving fly, like the San Bernardino kangaroo rat, is

endemic only to California and does not occur in adjacent states.

Peer Review

In compliance with the July 1, 1994, Service Peer Review Policy (59

FR 34270), the Service solicited the expert opinions of independent

specialists regarding pertinent scientific or commercial data and

issues relating to the supportive biological and ecological information

for the San Bernardino kangaroo rat. The responses received from the

reviewers supported the proposed listing action. Information and

suggestions provided by the reviewers were considered in developing

this final rule, and incorporated where applicable.

Summary of Factors Affecting the Species

Section 4 of the Act and regulations (50 CFR part 424) promulgated

to implement the listing provisions of the Act set forth the procedures

for adding species to Federal lists. A species may be determined to be

an endangered or threatened species due to one or more of the five

factors described in section 4(a)(1) of the Act. These factors and

their application to the San Bernardino kangaroo rat (Dipodomys

merriami parvus) are as follows:

A. The present or threatened destruction, modification, or

curtailment of its habitat or range. The majority of all remaining

suitable habitat, and the long-term persistence of the subspecies, is

threatened by the direct and indirect effects of either, or some

combination of, sand and gravel mining, flood control structures and

operations, agricultural activities, urban and industrial development,

water conservation activities, and off-road activity.

Loss and fragmentation of San Bernardino kangaroo rat habitat is

expected to continue as southern California's human population expands.

In the 1950's, the population of Riverside and San Bernardino counties

combined was about 400,000. Over 2.5 million people currently reside in

this region, and by the year 2000, the human population of San

Bernardino and Riverside counties is expected to increase to nearly 4

million (California Department of Finance 1993). Further habitat losses

resulting from development or alteration of the

[[Page 51010]]

landscape will likely have a significant adverse effect on the

viability of remaining San Bernardino kangaroo rat populations. Threats

to the largest of these extant populations are individually addressed

below.

Santa Ana River

The largest documented remaining population of the San Bernardino

kangaroo rat occurs along the Santa Ana River (McKernan 1997). Based on

a review of aerial imagery (Service unpub. GIS maps, 1998), the amount

of estimated occupied habitat in this area, including degraded habitat,

encompasses about 2,090 ha (5,224 ac), of which approximately 690 ha

(1,725 ac) are known to be occupied by the San Bernardino kangaroo rat

(McKernan 1997). The occupied habitat extends more or less continuously

from the vicinity of Norton Air Force Base to the Greenspot Road Bridge

north of Mentone (Service unpub. GIS maps 1998, McKernan 1997).

Approximately 47 percent of the alluvial scrub habitat within this area

is directly at risk due to the combined activities of the Corps, U. S.

Bureau of Land Management (BLM), San Bernardino Valley Water

Conservation District, San Bernardino County Flood Control District,

two private sand mining operations, and Metropolitan Water District's

Inland Feeder Project.

Based on a review of projected flows in the Santa Ana River

following completion of Seven Oaks Dam (Corps 1988, 1998) and the

approximate distribution of the San Bernardino kangaroo rat (Service

unpub. GIS maps 1997, McKernan 1997), at least 80 percent of the

remaining occupied habitat along the Santa Ana River is indirectly at

risk because of the projected changes in hydrology of this system

resulting from severe reductions in peak flows during flood events.

Based on more recent information (Corps 1998), approximately 90 percent

of the flood plain is at risk for the same reason. That is, an indirect

effect of construction and operation of the Seven Oaks Dam will be the

long-term succession of various stages of alluvial scrub, including

much of a 310-ha (775-ac) mitigation area established for this project,

into even-aged stands of habitat scrub persisting through time due to a

reduction in scouring and deposition of fresh sands by floods.

Curtailed hydrologic disturbance, where soil moisture is adequate, will

allow shrub densities to develop that exceed the low to moderate

densities tolerated by the subspecies (Hanes et al. 1989, McKernan

1997).

Activities of the San Bernardino County Flood Control District pose

a threat to approximately 310 ha (775 ac) of alluvial scrub habitat in

this area. Based on the distribution of soils and vegetative cover,

approximately 310 ha (775 ac) of this area is estimated to be occupied

by the San Bernardino kangaroo rat (Service unpub. GIS maps 1998).

Activities that impact this subspecies and its habitat, both directly

and indirectly, include the construction of levees and sediment

removal. The general area at risk due to these potential activities

supports approximately 15 percent of the projected population along the

Santa Ana River (Service unpub. GIS maps 1998).

The BLM and San Bernardino Valley Water Conservation District lands

are managed, in part, for the development or operation of water

spreading basins for groundwater recharge. Although the San Bernardino

kangaroo rat can occupy portions of areas modified by spreading basins,

flooded areas are essentially lost to this animal due to the periodic

presence of standing water and the degradation of habitat. Based on the

distribution of soils and vegetative cover, approximately 388 ha (970

ac) are at risk due to these potential activities (Service unpub. GIS

maps 1998). The area potentially affected by spreading basins

represents approximately 18 percent of the habitat along the Santa Ana

River (Service unpub. GIS maps 1998). The San Bernardino Valley Water

Conservation District and BLM are coordinating with the Service and

others to develop a regional conservation plan that attempts to

reconcile conflicts among competing land uses, including the

conservation of the San Bernardino kangaroo rat. However, this

conservation plan has not been finalized and is not currently in

effect. Although 322 ha (806 ac) of BLM land are potentially available

for water-spreading basins (or water percolation ponds), no ponds have

been constructed recently.

Proposed and approved sand and gravel mining poses a significant

and imminent threat to the San Bernardino kangaroo rat. Two sand mining

operations collectively threaten approximately 410 ha (1,025 ac) of

alluvial scrub habitat in the Santa Ana River (Lilburn 1997a and 1997b,

P&D Technologies 1988, Service unpub. GIS maps 1998). Based on the

distribution of soils and vegetative cover, all of the approved and

proposed project areas are estimated to be occupied by the San

Bernardino kangaroo rat (Service unpub. GIS maps 1998). The area

potentially affected by sand mining activities represents approximately

20 percent of the population along the Santa Ana River (Service unpub.

GIS maps 1998).

Additional impacts will occur due to a large pipeline project

(Metropolitan Water District Inland Feeder) (P&D Technologies 1992).

Approximately 60 ha (150 ac) of alluvial scrub in the Santa Ana River

are likely to be impacted by this project. Based on the distribution of

soils and vegetative cover, a minimum of 24 ha (60 ac) of this project

area are estimated to be occupied by the San Bernardino kangaroo rat

(Service unpub. GIS maps 1997). This project has been reviewed and

certified under the CEQA and, therefore, poses an imminent threat. The

area that will be directly impacted by this pipeline project represents

approximately 1 percent of the Santa Ana River population.

Other activities that threaten the San Bernardino kangaroo rat in

this region include the closure of Norton Air Force Base (San

Bernardino County) and the proposed development of this site into the

San Bernardino International Airport (U.S. Air Force 1993).

Approximately 132 ha (331 ac) are estimated to be occupied by the San

Bernardino kangaroo rat on Norton Air Force Base (Service unpub. GIS

maps, 1998). The area at risk represents approximately 6 percent of the

estimated Santa Ana River population. The area estimated to be occupied

by the San Bernardino kangaroo rat on Norton Air Force Base would be

reduced by approximately 2 to 5 percent (U.S. Air Force Conservation

Management Plan, 1997).

Lytle and Cajon Creeks

The second largest documented population of the San Bernardino

kangaroo rat occurs along Lytle and Cajon creeks, from near Interstate

15 downstream on both drainages for approximately 8 km (5 mi) (McKernan

1997, Service unpub. GIS maps, 1998). The amount of estimated occupied

habitat in this area encompasses about 2,787 ha (6,967 ac) (Service

unpub. GIS maps, 1998), of which approximately 456 ha (1,140 ac) are

known to be occupied by the San Bernardino kangaroo rat (McKernan

1997). Approximately 10 percent of the estimated occupied habitat is

directly at risk due to the combined activities of the San Bernardino

County Flood Control District, San Bernardino County Parks and

Recreation, and sand and gravel mining. In addition to areas directly

at risk, a minimum of 560 ha (1,400 ac) (20 percent) of habitat has

been degraded because of the location of flood control berms and the

resultant shielding of habitat from fluvial events

[[Page 51011]]

(Service unpub. GIS maps, 1998). Therefore, based on an evaluation of

soils and vegetative cover, a minimum of 30 percent of the estimated

occupied habitat in this area is at risk (Service unpub. GIS maps

1997).

Sand and gravel mining poses a significant threat to the San

Bernardino kangaroo rat. Based on information provided by Sunwest

Materials, they own approximately 373 ha (932 ac) and are planning

expansion of their operations. Expansion of their operations is

anticipated to directly impact approximately 168 ha (420 ac) of

estimated occupied habitat. In addition to potential direct impacts,

continuation of this sand mining operation in its current location will

continue to indirectly impact a minimum of 60 ha (150 ac) of estimated

occupied habitat through disruption of fluvial processes needed to

maintain habitat quality. Therefore, based on an evaluation of soils

and vegetative cover, a minimum of 8 percent of the estimated occupied

habitat in this area is at risk (Service unpub. GIS maps 1997).

The construction of a levee and parking lot for Glen Helen Regional

Park by San Bernardino County Flood Control District (District)

continues to impact approximately 22 ha (55 ac) of habitat by

precluding scouring events and the reestablishment of alluvial scrub

vegetation. Given the attributes of the area, the entire site was

likely occupied by the San Bernardino kangaroo rat prior to

construction of the levee and parking lot. The levee also threatens

habitat occupied by the San Bernardino kangaroo rat on the opposite

side of Cajon Creek due to the alteration of the local hydrological

system. The levee likely will divert flood flows into the opposite bank

and cause erosion of the Calmat conservation bank, which was

established to help conserve listed and sensitive species in the area.

The total amount of occupied habitat anticipated to be lost is, at a

minimum, 44 ha (110 ac) (Service unpub. info. 1998). The combined

impacts of the parking lot and associated levee amounts to

approximately 2 percent of the estimated occupied habitat in this area.

San Jacinto River

The third largest remaining population of San Bernardino kangaroo

rat occurs in Riverside County. Here, the vast majority of alluvial

flood plain has been impacted by flood control activities, agricultural

and urban development, and sand and gravel mining. The amount of

estimated occupied habitat in this area encompasses approximately 310

ha (775 ac) (Service unpub. GIS maps, 1998), of which approximately 140

ha (350 ac) are known to be occupied by the San Bernardino kangaroo rat

(McKernan 1997). A minimum of 41 percent of estimated occupied habitat

is at risk due to the combined activities of the Corps, Riverside

County Flood Control, sand mining operations, Eastern Municipal Water

District, and OHV use.

Flood control activities that impact this species include grading

of occupied habitat. Evidence of past, extensive grading that appears

to have been related to flood control activities exists throughout the

remaining alluvial scrub vegetation within the flood control berms

along the San Jacinto River in the vicinity of the City of San Jacinto

(Arthur Davenport, Service pers. obs. 1995). Flood control structures

that impact this species include concrete channels and flood confining

berms. The construction of a concrete channel appears to have isolated

a small population of San Bernardino kangaroo rats located along

Bautista Creek from the rest of the population along the San Jacinto

River. The construction of berms into the flood plain is detrimental to

the San Bernardino kangaroo rat in that the berms cause a loss of

habitat by increasing the frequency and severity of scouring and land

erosion. Based on an examination of this area (Service unpub. GIS maps,

1998), a minimum of 80 ha (200 ac) (20 percent) is at risk due to this

factor.

Continuing, intermittent, agricultural activities, such as dry-land

farming along the edges of the San Jacinto River in the vicinity of

Hemet and the City of San Jacinto also impact the San Bernardino

kangaroo rat. Patches of suitable or occupied habitat occurring outside

the flood control berms are occasionally disced due to agricultural

activities (Arthur Davenport, Service pers. obs. 1995). Discing

adversely affects the subspecies by destroying the animals' burrows and

degrading habitat.

Urban and commercial development into the flood plain of the San

Jacinto River also continue to threaten the San Bernardino kangaroo

rat. Although flood control berms are currently in place, suitable or

occupied habitat occurs outside the berms. Although degraded due to

agricultural activities, conservation and enhancement of suitable or

occupied habitat outside the berms are critical to the maintenance of

the species along the San Jacinto River because the habitat provides a

source population for recolonization of habitat within the berms

following flood events. Urban development is proceeding adjacent to the

San Jacinto River as indicated by the processing of three related Tract

Maps (Nos. 28770, 28771, and 28772) (43 ha (107 ac)) by the Riverside

County Planning Department (Riverside County Planning Department 1998).

Thus, the opportunity for conserving this subspecies along the San

Jacinto River appears to be diminishing.

The San Bernardino kangaroo rat is also impacted by the maintenance

and expansion of spreading basins within its habitat. Maintenance of

spreading basins results in the degradation of habitat and mortality of

San Bernardino kangaroo rats that occur along the margins (Arthur

Davenport, Service pers. obs. 1995). Similarly, the expansion of

spreading basins results in a direct loss of suitable or occupied

habitat. Eastern Municipal Water District has proposed reconstructing

previously authorized experimental groundwater recharge facilities in

the San Jacinto River (Corps 1997). This project would likely directly

impact approximately 2.6 ha (6.5 ac) of early successional alluvial

scrub, and approximately 2 percent of the estimated occupied habitat in

this area.

Sand and gravel mining threaten the San Bernardino kangaroo rat in

the San Jacinto River area. The operations of sand mining continue to

impact occupied habitat. One mine site consists of 94 ha (235 ac) of

leased land and occurs entirely in the flood plain of the San Jacinto

River (Corps 1996, Pre-discharge Notification 96-00397-RRS; KCT

Consultants, Inc. 1998). Mining activities have impacted approximately

32 ha (80 ac) and are proposed to expand into an additional 34 ha (86

ac) (KCT Consultants, Inc. 1998). Based on the distribution of soils

and vegetative cover, a minimum of 40 ha (100 ac) of the project site

will be degraded. Therefore, this project would likely directly impact

approximately 10 percent of the estimated occupied habitat in the San

Jacinto River area.

OHV use in the San Jacinto River degrades habitat occupied by the

San Bernardino kangaroo rat (Arthur Davenport, Service pers. obs. 1997,

1998). Significant areas of potential and occupied habitat are degraded

due to extensive OHV use in this area. In addition, areas that would

revegetate following flood events, and therefore provide temporary use

for the San Bernardino kangaroo rat, are essentially devegetated due to

vehicle activity. A minimum of 40 ha (100 ac)(10 percent of the

estimated occupied habitat) is at risk due to this activity.

B. Overutilization for commercial, recreational, scientific, or

educational purposes. This factor is not known to be applicable.

[[Page 51012]]

C. Disease or predation. Disease is not known to be affecting the

San Bernardino kangaroo rat at this time. However, fragmentation of

habitat is likely to promote higher levels of predation by urban-

associated animals (e.g., domestic cats) as the interface between

natural habitat and urban areas is increased (Church and Lawton 1987).

Domestic cats are known to be predators of native rodents (Hubbs 1951,

George 1974), and predation by cats has been documented for the San

Bernardino kangaroo rat (McKernan, pers. comm., 1994).

D. The inadequacy of existing regulatory mechanisms. The decline of

the San Bernardino kangaroo rat has occurred despite existing laws and

regulations that could contribute to the protection of the animal and

its habitat. Existing regulatory mechanisms that may provide some

protection for the San Bernardino kangaroo rat include: (1) CEQA and

National Environmental Policy Act (NEPA); (2) the California Natural

Community Conservation Planning Program; (3) the Surface Mining Control

and Reclamation Act (SMCARA); (4) the Act in those cases where the San

Bernardino kangaroo rat occurs in habitat occupied by other listed

species; (5) the California Endangered Species Act (CESA); (6)

conservation provisions under the Federal Clean Water Act; (7) land

acquisition and management by Federal, State, or local agencies or by

private groups and organizations; and (8) local laws and regulations.

The majority of the known populations of the San Bernardino

kangaroo rat occur on privately owned land. Local lead agencies

responsible under CEQA and NEPA have made determinations that have, or

would, adversely affect this taxon and its habitat. Examples of

projects that have been completed or are currently undergoing the

review process under CEQA and/or NEPA that could impact this species

include Seven Oaks Dam, State Route 30 Improvement Project,

Metropolitan Water District Inland Feeder Pipeline, Calmat Company,

Sunwest Materials, Robertson's Ready Mix, and San Jacinto Aggregates.

Past, present, and proposed mitigation for impacts to this species and

its habitat have been inadequate to stop or reverse its decline at the

regional level. CEQA decisions are also subject to over-riding social

and economic considerations.

In 1991, the State of California established a Natural Community

Conservation Planning Program (NCCP) to address conservation needs

throughout the State. The initial focus of the program is the coastal

sage scrub community. Within this program, the California Department of

Fish and Game (CDFG) included the long-term conservation of alluvial

scrub, which is in part occupied by the San Bernardino kangaroo rat.

However, participation in NCCP is voluntary. San Bernardino and

Riverside counties have signed planning agreements (Memoranda of

Understanding (MOUs)) to develop multispecies plans that meet NCCP

criteria, but have not enrolled in the NCCP program in the interim. The

MOU's do not provide protection to candidate species during the

planning process.

Reclamation of mined areas in the State of California is required

under SCMARA. The County of San Bernardino also requires that mining

companies submit a reclamation plan for County approval. The primary

purpose of these ordinances is to provide for erosion control measures

and to restore slopes to a moderate slope. However, reclamation is not

likely to resolve the problem of maintaining or mitigating for the loss

of species or ecosystem functions in a biologically meaningful way

because of project (and mitigation) related changes in topography and

altered hydrology. In this regard, Calmat has utilized the red-line

mining method, which attempts to maintain streambed equilibrium and

associated fluvial geomorphology. The feasibility of artificially

creating and maintaining a viable alluvial scrub plant and animal

community suitable for the long-term conservation of the San Bernardino

kangaroo rat and associated species has yet to be demonstrated.

The BLM designated an Area of Critical Environmental Concern (ACEC)

in the Santa Ana River in 1994. The ACEC is composed of three parcels

of land that total 304 ha (760 ac). The purpose of the ACEC is to

protect and enhance the habitat of federally listed plant species

occurring in the area, such as Santa Ana River wooly-star (Eriastrum

densifolium ssp. sanctorum), and sensitive species such as the San

Bernardino kangaroo rat, while providing for the administration of

valid existing rights (BLM 1996). Although the establishment of the

ACEC is important in regards to conservation of sensitive habitats and

species in this area, the administration of valid existing rights

conflicts with BLM's conservation abilities in this area. Existing

rights include a withdrawal of Federal lands in this area for water

conservation through an act of Congress, February 20, 1909 (Pub. L.

248). The entire ACEC is included in this withdrawn land and may be

available for water conservation measures such as the construction of

percolation basins, subject to compliance with the Act.

The San Bernardino kangaroo rat is not protected under the CESA.

The Federal and State Acts together can afford some measure of

protection to the San Bernardino kangaroo rat in those areas where the

species coexists with other species already listed as threatened or

endangered. Santa Ana River wooly-star and slender-horned spineflower

are listed as endangered under the Act and the CESA, and the coastal

California gnatcatcher (Polioptila californica californica) is listed

as threatened under the Act. All three species can occur in habitats

similar to those preferred by the San Bernardino kangaroo rat. However,

the distribution of D. leptoceras and E. densifolium ssp. sanctorum is

spotty and discontinuous, and only overlaps with a small portion of the

habitat occupied by the San Bernardino kangaroo rat. The coastal

California gnatcatcher, although known to occur within alluvial scrub

habitat, has largely been extirpated from San Bernardino County within

the range of the San Bernardino kangaroo rat and, therefore, occurrence

with the listed species provides little ancillary protection. In

Riverside County, coastal California gnatcatchers are not currently

known to occur at any sites occupied by the San Bernardino kangaroo

rat.

The San Bernardino kangaroo rat could potentially be affected by

projects requiring a permit from the Corps under section 404 of the

Clean Water Act. Although the objective of the Clean Water Act is to

``restore and maintain the chemical, physical, and biological integrity

of the Nation's waters'' (Pub. L. 92-500), no specific provisions exist

that adequately address the need to conserve unlisted species. A

majority of the remaining populations of kangaroo rats occur outside

areas delineated as waters of the United States and, therefore, are not

regulated. Moreover, numerous activities for which the Corps

potentially has jurisdiction, including sand and gravel mining and

flood control projects, have proceeded without their overview (see

Factor A of the ``Summary of Factors Affecting the Species'' section of

this rule).

As a result of Fish and Wildlife Coordination Act activities, the

Corps, in 1988, initiated a section 7 consultation on Eriastrum

densifolium ssp. sanctorum for the proposed Seven Oaks Dam project on

the Santa Ana River. About 310 ha (775 ac) of alluvial scrub habitat

has been designated for preservation as mitigation for impacts to

Eriastrum densifolium ssp. sanctorum resulting from the construction of

the dam. Approximately 176 ha (440 ac) of

[[Page 51013]]

this area appears to be currently suitable for the San Bernardino

kangaroo rat (Service unpub. GIS maps 1997). However, the preserved

area represents only approximately 4 percent of the alluvial scrub

found in this area. In addition, based on recent information provided

by the Corps, the majority of this conserved habitat will not, in

contrast to previous determinations, receive scouring events (Corps

1998). Thus, the mitigation preserve, while providing some benefit, is

likely not adequate to conserve the subspecies.

Local and County zoning designations are subject to change and do

not specifically address the conservation and management needs of the

San Bernardino kangaroo rat. However, numerous jurisdictions in western

Riverside and San Bernardino counties are beginning a multi-species

habitat conservation planning process, including coastal sage scrub-

associated species, and benefit to the kangaroo rat may result.

However, commitments for funding, implementation of the plan, and

resultant, appropriate changes in land-use regulations to protect

potential preserves during the planning process have not been made.

The Riverside County Habitat Conservation Agency is implementing an

approved habitat conservation plan for the federally endangered

Stephens' kangaroo rat that involves the establishment of permanent

preserves in western Riverside County (Riverside County Habitat

Conservation Agency 1996). Because the San Bernardino kangaroo rat

occupies a largely different habitat type than that of the Stephens'

kangaroo rat, the conservation plan for the Stephens' kangaroo rat will

not benefit the San Bernardino kangaroo rat. Despite extensive surveys,

no current records of San Bernardino kangaroo rats occur within any of

the reserves established for the Stephens' kangaroo rat (Arthur

Davenport, Service pers. comm. 1997).

E. Other natural or manmade factors affecting its continued

existence. Habitat for the San Bernardino kangaroo rat has been

severely reduced and fragmented by development and related activities

in the San Bernardino and San Jacinto Valleys. Habitat fragmentation

results in loss of habitat, reduced habitat patch size, and an

increasing distance between patches of habitat. As noted by Andren

(1994) in a discussion of highly fragmented landscapes, reduced habitat

patch size and isolation will exacerbate the effect of habitat loss on

a species' persistence. That is, the loss of species, or decline in

population size, will be greater than expected from habitat loss alone.

The loss of native vertebrates, including rodents, due to habitat

fragmentation is well documented (Soule et al. 1992, Andren 1994,

Bolger et al. 1997).

Isolated populations are subject to extirpation by manmade or

natural events, such as floods and drought. Furthermore, small

populations may experience a loss of genetic variability and experience

inbreeding depression (Lacy 1997). Contributing to the fragmentation of

San Bernardino kangaroo rat habitat are railroad tracks, roads, and

flood control channels. These structures appear to function as movement

barriers to the San Bernardino kangaroo rat, preventing movement

between areas of suitable habitat.

All remaining population segments are at risk due to their small

size and isolation. This is especially true for the four smallest

populations (i.e., City Creek, Reche Canyon, Etiwanda, and South

Bloomington). Urbanization occurs throughout most of the San Bernardino

kangaroo rat's range and the remaining larger blocks of occupied

habitat (i.e., Santa Ana River, Lytle/Cajon, and San Jacinto River) now

function independently of each other. This isolation of occupied

patches places the entire population of San Bernardino kangaroo rat at

risk because recolonization of suitable habitat following local

extirpation has been precluded. The extirpation of populations from

local catastrophes, such as flooding, is becoming more probable as

urban development further constricts the remaining populations to the

active portion of the flood plain. The largest remaining populations

are now essentially restricted entirely to flood plain habitats and

vulnerable to extirpation by naturally occurring events.

Flood control structures alter both the magnitude and distribution

of flooding. In the absence of flood scouring, sediments and organic

matter accumulate over time, contributing to senescence of the alluvial

scrub community and its conversion to coastal sage scrub or chaparral

(Smith 1980, Wheeler 1991, Jigour and McKernan 1992). The dense canopy

of these communities does not provide the open environment required by

the San Bernardino kangaroo rat, thereby reducing the habitat

suitability for the species (Beatley 1976, McKernan 1997). Within the

active channels, the confined flood events scour too frequently to

maintain suitable San Bernardino kangaroo rat habitat.

The intentional destruction of areas occupied by declining species

continues to be an issue of serious concern and is a potential threat

to the San Bernardino kangaroo rat. The propensity of some individuals

to destroy habitat occupied by declining species, in an apparent effort

to remove environmental concerns, is underscored by the illegal

destruction of areas occupied by federally listed species. Based on

information available to the Service, such activities frequently occur

within the range of the San Bernardino kangaroo rat (Service unpub.

info. 1998). The illegal destruction of habitat occupied by the

Stephens' kangaroo rat (Dipodomys stephensi), a similar animal that

occurs within the range of the San Bernardino kangaroo rat, is

representative of the threats facing this subspecies.

The Service has carefully assessed the best scientific and

commercial information available regarding the past, present, and

future threats faced by this subspecies in developing this final rule.

The remaining populations at City Creek (8 ha (20 ac)), Etiwanda (2 ha

(5 ac)), Reche Canyon (2 ha (5 ac)), and South Bloomington (0.8 ha (2

ac)) are extremely small, isolated, subject to the indirect effects of

urban development (e.g., predation due to house cats), likely prone to

inbreeding depression, and therefore have little chance of long-term

survival without intensive management. The three largest remaining

populations (i.e., Santa Ana River (2,090 ha (5,224 ac)), Lytle and

Cajon washes (2,787 ha (6,967 ac)), and the San Jacinto River (401 ha

(1,002 ac))), are also endangered. The Santa Ana River population is

endangered due to the disruption of the hydrological system, and

activities such as sand and gravel mining and water development

projects. The Lytle and Cajon wash population is endangered due to

disruption of the hydrological system and activities such as

encroaching urban development, sand and gravel mining, and flood

control. The San Jacinto River population is endangered due to its near

total anthropogenic restriction to the active flood plain, and

activities such as urban development, sand and gravel mining, water

development, and OHV activity. In addition, all of these populations

are at risk due to future development projects because there is no

conservation plan in place that ensures their preservation in the wild.

Therefore, the Service finds that the action to list the San Bernardino

kangaroo rat as endangered is warranted. Because of these factors, even

in the absence of additional future impacts, the San Bernardino

kangaroo rat is now in danger of extinction throughout all or a

significant portion of

[[Page 51014]]

its range. Threatened status is not appropriate considering the extent

of loss and degradation of the animal's habitat and the vulnerability

of the remaining populations.

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,

at the time it is listed in accordance with the Act, on which are found

those physical or biological features (I) essential to the conservation

of the species and (II) that may require special management

consideration or protection and; (ii) specific areas outside the

geographical area occupied by a species at the time it is listed, upon

a determination that such areas are essential for the conservation of

the species. ``Conservation'' means the use of all methods and

procedures needed to bring the species to the point at which listing

under the Act is no longer necessary.

Section 4(a)(3) of the Act, as amended, and implementing

regulations (50 CFR 424.12) require that, to the maximum extent prudent

and determinable, the Secretary designate critical habitat at the time

a species is designated to be endangered or threatened. The Service

finds that designation of critical habitat is not prudent for the San

Bernardino kangaroo rat. According to the Service's regulations (50 CFR

424.12(a)(1)), designation of critical habitat is not prudent when one

or both of the following situations exist: (1) The species is

threatened by taking or other human activity, and identification of

critical habitat can be expected to increase the degree of threat to

the species, or (2) such designation of critical habitat would not be

beneficial to the species.

Critical habitat designation for the San Bernardino kangaroo rat is

not prudent because an increase in the degree of threat could result.

This subspecies is found in fragmented habitat composed of various sage

scrub shrub vegetation in the presence of sandy soils. As stated under

Factor E of the ``Summary of Factors Affecting the Species'' section,

intentional destruction of areas occupied by listed species occurs

frequently within the range of the San Bernardino kangaroo rat. In

addition, as detailed in the emergency rule listing the San Bernardino

kangaroo rat (63 FR 3840), threats of intentional grading directed

specifically at habitat for the San Bernardino kangaroo rat have been

documented. The designation of critical habitat, including the

publication of maps providing precise locations, would bring

unnecessary attention to those areas of the range that are occupied by

this species and would encourage acts of vandalism or intentional

destruction of habitat. This action also could lead to an increase in

activities (such as discing or blading) by landowners who do not want

listed species on their property. The possible misperception that

critical habitat designation on private lands necessarily imposes

restrictions on private landowners would be counterproductive and would

render cooperative efforts with landowners to recover species more

difficult.

Moreover, the designation of critical habitat for the San

Bernardino kangaroo rat is not prudent due to the lack of benefit to

the species. Section 7 of the Act requires that Federal agencies ensure

that any action authorized, funded, or carried out not result in the

destruction or adverse modification of critical habitat. Although this

requirement is in addition to the section 7 prohibition against

jeopardizing the continued existence of a listed species, it is the

only mandatory legal consequence of a critical habitat designation. The

Act's section 7 implementing regulations define ``jeopardizing the

continued existence of'' and ``destruction or adverse modification of''

in virtually identical terms. ``Jeopardize the continued existence of''

means engage in an action ``that reasonably would be expected * * * to

reduce appreciably the likelihood of both the survival and recovery of

a listed species.'' ``Destruction or adverse modification'' means an

``alteration that appreciably diminishes the value of critical habitat

for both the survival and recovery of a listed species.'' Common to

both definitions is an appreciable detrimental effect on both survival

and recovery of a listed species, in the case of critical habitat by

reducing the value of the habitat so designated. Thus actions

satisfying the standard for adverse modification are nearly always

found to also jeopardize the species' continued existence.

The Service considers all suitable habitat associated with Lytle

and Cajon washes and the Santa Ana River to be essential for the

conservation of the San Bernardino kangaroo rat. Without these areas,

recovery of the San Bernardino kangaroo rat would not be possible.

Given that the suitable habitat is considered occupied, all Federal

activities that would impact habitat at these locales would require

consultation under section 7 of the Act. Accordingly, any activity that

would be determined to cause an adverse modification to critical

habitat also likely would jeopardize the continued existence of this

subspecies given its restricted distribution and imperiled status.

Therefore, the designation of critical habitat would have no net

benefit to the conservation of the species in these areas.

The same argument applies to the population of San Bernardino

kangaroo rats associated with the San Jacinto River, except for a large

area of unoccupied habitat that may be needed for conservation of this

animal. However, the area of unoccupied habitat is in private

ownership. Designation of critical habitat provides no limitations or

constraints on private landowners if there is no Federal involvement

and, as such, provides this species with no additional conservation

benefit beyond listing. This area is characterized as a broad,

relatively flat, valley that is essentially bisected by the channelized

San Jacinto River. Therefore, urban and industrial development can

likely proceed and encroach upon the area needed for conservation of

the San Bernardino kangaroo rat without the need of Federal permits

(e.g., per section 404 of the Clean Water Act). Because the designation

of critical habitat in this area would also have minimal or no net

benefit to the conservation of the San Bernardino kangaroo rat given

the potential intentional destruction threat, conservation of the

animal would be better served through the recovery planning and

implementation process.

The Service acknowledges that critical habitat designation, in some

situations, may provide limited value to a species by identifying areas

important for the conservation of the species and calling attention to

those areas in special need of protection. Critical habitat designation

of unoccupied habitat may also benefit a species by alerting Federal

action agencies to potential issues and allowing them to evaluate

proposals that may affect these areas. However, in this case, given the

familiarity of the distribution of the San Bernardino kangaroo rat to

local planning agencies and regulatory agencies such as the Corps, and

its close relationship to areas identified as waters of the United

States, deriving any benefit from designation of critical habitat is

unlikely. Additionally the increased risk of adverse public reaction

from designation of critical habitat exceeds any potential benefits to

the species from such designation. Conservation of the San Bernardino

kangaroo rat would be accomplished more efficiently through the

recovery

[[Page 51015]]

process and the jeopardy prohibition of section 7.

As for all the known remaining populations (City Creek (8 ha (20

ac)), Etiwanda (2 ha (5 ac)), Reche Canyon (2 ha (5 ac)), and South

Bloomington (0.8 ha (2 ac), designation of critical habitat would not

assist in conservation of these groups because of their critically

small size and complete isolation from the three remaining, relatively

large groups (i.e., Lytle and Cajon washes, Santa Ana, and San Jacinto)

due to urban development. These fragmented and isolated portions of the

overall population will need continual high intensity management to

sustain them.

Accordingly, the Service concludes that any benefit from

designation of critical habitat is far outweighed by the increase in

the degree of threat to the subspecies. Therefore, designation of

critical habitat for the San Bernardino kangaroo rat is not prudent.

The Service will continue in its efforts to obtain more information

on the San Bernardino kangaroo rat biology and ecology, including

essential habitat characteristics particularly in regard to stream flow

regimes, current and historical distribution, and existing and

potential sites that can contribute to conservation of the species. The

information resulting from this effort will be used to identify

measures needed to achieve conservation of the species, as defined

under the Act. Such measures could include, but are not limited to,

development of conservation agreements with the State, other Federal

agencies, local governments, private landowners, and organizations.

Available Conservation Measures

Conservation measures provided to species listed as endangered or

threatened under the Act include recognition, recovery actions,

requirements for Federal protection, and prohibitions against certain

activities. Recognition through listing encourages and results in

conservation actions by Federal, State, and private agencies, groups,

and individuals. The Act provides for possible land acquisition and

cooperation with the States and requires that recovery actions be

carried out for all listed species. The protection required of Federal

agencies and the prohibitions against certain activities involving

listed plants and animals are discussed, in part, below.

Section 7(a) of the Act, as amended, requires Federal agencies to

evaluate their actions with respect to any species that is proposed or

listed as endangered or threatened and with respect to its critical

habitat, if any is being designated. Regulations implementing this

interagency cooperation provision of the Act are codified at 50 CFR

part 402. Section 7(a)(4) of the Act requires Federal agencies to

confer informally with the Service on any action that is likely to

jeopardize the continued existence of a proposed species or result in

destruction or adverse modification of proposed critical habitat. If a

species is subsequently listed, section 7(a)(2) requires Federal

agencies to ensure that activities they authorize, fund, or carry out

are not likely to jeopardize the continued existence of such a species

or to destroy or adversely modify its critical habitat. If a Federal

action may affect a listed species or its critical habitat, the

responsible Federal agency must enter into formal consultation with the

Service.

Federal agencies expected to have involvement with the San

Bernardino kangaroo rat or its habitat include the Corps and the

Environmental Protection Agency due to their permit authority under

section 404 of the Clean Water Act. The Federal Aviation Administration

has jurisdiction over areas with potentially suitable San Bernardino

kangaroo rat habitat in the vicinity of Redlands Municipal Airport and

Norton Air Force Base in San Bernardino County. The Federal Highway

Administration will likely be involved through potential funding of

highway construction projects near Devore, Rancho Cucamonga, Rialto,

and San Bernardino (San Bernardino County). Because the San Bernardino

kangaroo rat occurs on Norton Air Force Base (San Bernardino County),

the U.S. Air Force will likely be involved through the transfer of

Federal lands to a non-Federal entity and the conversion of this area

to a civilian airport. The BLM has jurisdiction over a portion of the

habitat occupied by the San Bernardino kangaroo rat along the Santa Ana

River. The Forest Service will likely be involved because populations

of the San Bernardino kangaroo rat occur within or near the boundaries

of the Cleveland National Forest and San Bernardino National Forest.

The Bureau of Reclamation may be involved through the potential funding

of water reclamation and flood control projects. The Bureau of Indian

Affairs may be involved with this taxon at Soboba Indian Reservation

(Riverside County). The Federal Housing Administration could

potentially be involved through loans for housing projects in the

region. The Federal Energy Regulatory Commission could be involved in

projects affecting existing or proposed transmission lines in the Santa

Ana River or Etiwanda Creek areas.

The Act and implementing regulations found at 50 CFR 17.21 set

forth a series of general trade prohibitions and exceptions that apply

to all endangered wildlife. These prohibitions, in part, make it

illegal for any person subject to the jurisdiction of the United States

to take (includes harass, harm, pursue, hunt, shoot, wound, kill, trap,

capture, collect, or to attempt any of these), import or export, ship

in interstate commerce in the course of commercial activity, or sell or

offer for sale in interstate or foreign commerce any listed species. It

also is illegal to possess, sell, deliver, carry, transport, or ship

any such wildlife that has been taken illegally. Certain exceptions

apply to agents of the Service and State conservation agencies.

Permits may be issued to carry out otherwise prohibited activities

involving endangered and threatened wildlife under certain

circumstances. Regulations governing permits are at 50 CFR 17.22,

17.23, and 17.32. Such permits are available for scientific purposes,

to enhance the propagation or survival of the species, or for

incidental take in connection with otherwise lawful activities.

It is the policy of the Service (59 FR 34272) to identify to the

maximum extent practical at the time a species is listed, those

activities that would or would not constitute a violation of section 9

of the Act. The intent of this policy is to increase public awareness

of the effect of listing on proposed and ongoing activities within a

species' range, and to assist the public in identifying measures needed

to protect the species. The Service believes that, based upon the best

available information, the following actions will not result in a

violation of section 9, provided these activities are carried out in

accordance with existing regulations and permit requirements:

(1) Activities authorized, funded, or carried out by Federal

agencies (e.g., grazing management, agricultural conversions, wetland

and riparian habitat modification, flood and erosion control,

residential development, recreational trail development, road

construction, hazardous material containment and cleanup activities,

prescribed burns, pesticide/herbicide application, pipelines or utility

lines crossing suitable habitat) when such activity is conducted in

accordance with any reasonable and prudent measures given by the

Service in a consultation conducted under section 7 of the Act;

(2) Casual, dispersed human activities on foot or horseback (e.g.,

bird watching, sightseeing, photography, camping, hiking);

[[Page 51016]]

(3) Residential landscape maintenance, including the clearing of

vegetation around one's personal residence as a fire break; and

(4) Road kills or injuries to the San Bernardino kangaroo rat by

vehicles on designated public roads.

The Service believes that the following might potentially result in

a violation of section 9; however, possible violations are not limited

to these actions alone:

(1) Take of San Bernardino kangaroo rat, which includes harassing,

harming, pursuing, hunting, shooting, wounding, killing, trapping,

capturing, or collecting, or attempting any of these actions, except in

accordance with applicable Federal and State fish and wildlife

conservation laws and regulations;

(2) Possess, sell, deliver, carry, transport, or ship illegally

taken San Bernardino kangaroo rats;

(3) Unlawful destruction or alteration of San Bernardino kangaroo

rat habitat by discing, grading, sand or gravel mining, flooding,

vehicle operation, or other activities that result in the destruction

of vegetative composition, substrate composition, or other intentional

activity that impacts breeding, feeding, or availability of cover;

(4) Application of pesticides/herbicides in violation of label

restrictions;

(5) Interstate or foreign commerce and import/export without

previously obtaining an appropriate permit. Permits to conduct

activities are available for purposes of scientific research and

enhancement of propagation or survival of the species.

Questions regarding whether specific activities will constitute a

violation of section 9 or to obtain approved guidelines for actions

within the kangaroo rat habitat should be directed to the Service's

Carlsbad Field Office (see ADDRESSES section). Requests for copies of

the regulations concerning listed animals and inquiries regarding

prohibitions and permits may be addressed to the U.S. Fish and Wildlife

Service, Endangered Species Permits, 911 NE. 11th Avenue, Portland,

Oregon 97232-4181 (telephone 503/231-6241; facsimile 503/231-6243).

Reasons for Effective Date

The Service is concerned that the issuance of the final rule for

the San Bernardino kangaroo rat will result in the destruction of

habitat essential for maintaining the remaining populations of this

animal if not made effective upon publication. There are a number of

projects poised for development that would both directly and indirectly

impact this animal. Because of the immediate threat posed by these

activities, the Service finds that good cause exists for this rule to

take effect immediately upon publication in accordance with 5 U.S.C.

553(d)(3), so that the protections implemented under the emergency rule

will not lapse.

National Environmental Policy Act

The Service has determined that an Environmental Assessment or

Environmental Impact Statement, 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).

Paperwork Reduction Act

This rule does not contain any information collection requirements

for which the Office of Management and Budget (OMB) approval under the

Paperwork reduction Act, 44 U.S.C. 3501 et seq. is required. An

information collection related to the rule pertaining to permits for

endangered and threatened species has OMB approval and is assigned

clearance number 1018-0094. This rule does not alter that information

collection requirement. For additional information concerning permits

and associated requirements for endangered species, see 50 CFR 17.22.

References Cited

A complete list of references cited in this rule is available upon

request from the Carlsbad Field Office of the U.S. Fish and Wildlife

Service (see ADDRESSES section).

Author

The primary author of this final rule is Arthur Davenport of the

Carlsbad Field Office (see ADDRESSES section).

List of Subjects in 50 CFR Part 17

Endangered and threatened species, Exports, Imports, Reporting and

record keeping requirements, Transportation.

Regulation Promulgation

Accordingly, the Service amends part 17, subchapter B of chapter I,

title 50 of the Code of Federal Regulations, as follows:

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.

2. Amend Sec. 17.11(h) by adding the following, in alphabetical

order under MAMMALS, to the List of Endangered and Threatened Wildlife

to read as follows:

Sec. 17.11 Endangered and threatened wildlife.

* * * * *

(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

Species Vertebrate

-------------------------------------------------------- population where When Critical Special

Historic range endangered or Status listed habitat rules

Common name Scientific name threatened

--------------------------------------------------------------------------------------------------------------------------------------------------------

Mammals

* * * * * * *

Kangaroo rat, San Bernardino..... Dipodomys merriami U.S.A. (CA)........ NA................. E 645 NA NA

parvus.

* * * * * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------

[[Page 51017]]

Dated: September 15, 1998.

Jamie Rappaport Clark,

Director, Fish and Wildlife Service.

[FR Doc. 98-25545 Filed 9-23-98; 8:45 am]

BILLING CODE 4310-55-P