Endangered and Threatened Wildlife and Plants; Determination of Whether Designation of Critical Habitat for the Coastal California Gnatcatcher is Prudent

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AC88

Endangered and Threatened Wildlife and Plants; Determination of

Whether Designation of Critical Habitat for the Coastal California

Gnatcatcher is Prudent

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of determination.

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SUMMARY: We, the U.S. Fish and Wildlife Service, have reconsidered our

prudency finding for designating critical habitat for the coastal

California gnatcatcher (Polioptila californica californica). We listed

the coastal California gnatcatcher as a threatened species under the

Endangered Species Act of 1973, as amended (Act) on March 30, 1993. At

that time, we determined that designation of critical habitat was not

prudent because designation would not benefit the coastal California

gnatcatcher and would increase the degree of threat to the species. On

May 21, 1997, the United States Court of Appeals for the Ninth Circuit

issued an opinion that required us to issue a new decision regarding

the prudency of designating critical habitat for the coastal California

gnatcatcher. This notice of determination responds to that court order.

DATES: We made the finding announced in this document on January 21,

1999.

ADDRESSES: The complete file for this prudency reconsideration is

available for inspection, by appointment, during normal business hours

at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife

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; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Background

We listed the coastal California gnatcatcher (Polioptila

californica californica) (gnatcatcher) as a threatened species under

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

seq.) on March 30, 1993 (58 FR 16742). This small, insectivorous

songbird typically occurs in several distinctive subassociations of the

coastal sage scrub plant community. Coastal sage scrub vegetation is

composed of relatively low-growing, dry-season deciduous, and succulent

plants. Characteristic plants of this community include coastal

sagebrush (Artemisia californica), various species of sage (Salvia

spp.), California buckwheat (Eriogonum fasciculatum), lemonadeberry

(Rhus integrifolia), California encelia (Encelia californica), prickly

pear and cholla cactus (Opuntia spp.), and various species of

Haplopappus. The gnatcatcher exhibits a strong affinity to coastal sage

scrub vegetation dominated by coastal sagebrush, although in some

portions of its range (e.g., western Riverside County) other plant

species may be more abundant. The species occurs below about 912 meters

(m) (3,000 feet (ft)) in elevation. The species remains

[[Page 5958]]

threatened by habitat loss and fragmentation resulting from urban and

agricultural development, and the synergistic effects of cowbird

parasitism and predation (58 FR 16742).

The precarious status of the gnatcatcher and the importance of

habitat protection are well known to the general public and to land

planning agencies. We are working with Federal, State, and local

agencies and private landowners throughout the historic range of the

gnatcatcher to implement or develop conservation plans for this species

and the large array of other listed or sensitive species also found in

its coastal sage scrub habitats.

Critical Habitat

Critical habitat is defined in section 3 of the Act as--(i) the

specific areas within the geographical area occupied by a species, at

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

those physical or biological features (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 was 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 its 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 determined to be endangered or threatened. According to

our 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.

In general, critical habitat designation contributes to species

conservation primarily by highlighting habitat areas in need of special

management considerations or protection, and by describing the features

within those areas that are essential to the conservation of the

species. Critical habitat designation may provide additional protection

under section 7 of the Act with regard to activities that are funded,

authorized, or carried out by a Federal agency on either Federal or

non-Federal land. Section 7(a)(2) of the Act requires Federal agencies,

in consultation with us, to ensure that any action they carry out,

fund, or authorize does not jeopardize the continued existence of a

federally listed species or result in the destruction or adverse

modification of designated critical habitat. This requirement of

Federal agencies is the only mandatory legal consequence of a critical

habitat designation. We refer to areas where a Federal agency may be

involved as having a ``Federal nexus.''

Regulations in 50 CFR part 402 define ``jeopardize the continued

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

similar terms. To jeopardize the continued existence of a species means

to 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 of habitat 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

the survival and recovery of a listed species. Thus, actions that would

adversely modify critical habitat generally also jeopardize the

continued existence of the species.

At the time of the listing, we concluded that designation of

critical habitat for the gnatcatcher was not prudent because such

designation would not benefit the species and would make the species

more vulnerable to activities prohibited under section 9 of the Act. We

were aware of several instances of apparently intentional habitat

destruction that had occurred during the listing process. In addition,

most land occupied by the gnatcatcher was in private ownership and a

designation of critical habitat was not believed to be of benefit

because of a lack of a Federal nexus.

On May 21, 1997, the United States Court of Appeals for the Ninth

Circuit (Court), issued an opinion (No. 95-56075; D.C. No. CV-93-999-

LHM) that required us to issue a new decision regarding the prudency of

determining critical habitat for the gnatcatcher. In this opinion, the

Court held that the ``increased threat'' criterion in the regulations

may justify a not prudent finding only when we have weighed the

benefits of designation against the risks of designation. Secondly,

with respect to the ``not beneficial'' criterion explicit in the

regulations, the Court ruled that our conclusion that designation of

critical habitat was not prudent because it would fail to control the

majority of land-use activities within critical habitat was

inconsistent with Congressional intent that the imprudence exception to

designation should apply ``only in rare circumstances.'' The Court

noted that a substantial portion of gnatcatcher habitat would be

subject to a future nexus sufficient to trigger section 7 consultation

requirements regarding critical habitat. Third, the Court determined

that our conclusion that designation of critical habitat would be less

beneficial to the species than another type of protection (i.e., State

of California Natural Community Conservation Planning efforts) did not

absolve us from the requirement to designate critical habitat. The

Court was also critical of our lack of specificity in our analysis.

Prudency Redetermination Process

We have reevaluated our previous not prudent finding regarding

critical habitat designation for the gnatcatcher as instructed by the

Court. Initially, we inventoried all lands within the known range of

the gnatcatcher containing coastal sage scrub habitats. These lands

included coastal and inland areas--(1) that may support sage scrub or

similar habitat within San Diego, Orange, Los Angeles, Riverside, San

Bernardino, and Ventura counties, California, and (2) that are below

912 m (3,000 ft) in elevation (the approximate maximum elevation

occupied by gnatcatchers). Once we defined the study area, we

categorized lands by ownership within each County using Geographic

Information System (GIS) theme coverages, and estimated approximate

acreages for each category. We used Federal and non-Federal (i.e.,

Tribal, local/State jurisdiction, and private) land ownership

categories for the purposes of this prudency determination. We also

considered the likelihood of a Federal nexus through land ownership,

project funding or activity jurisdiction (Table 1).

We considered all Federal and Tribal trust lands to have a Federal

nexus. Because of its Tribal trust responsibilities, the Bureau of

Indian Affairs (BIA) represents the Federal nexus on Tribal trust

lands; the BIA does not represent a Federal nexus on Tribal fee-owned

land. We evaluated State, local government, and private lands that

contain gnatcatcher habitat for a potential Federal nexus. We expect

some projects on State, local government, or private lands in Orange,

San Diego and Ventura counties to have a Federal nexus.

[[Page 5959]]

Table 1.--Geographic Distribution, Ownership, and Size of Areas Evaluated in the Critical Habitat Prudency Redetermination for the Coastal California

Gnatcatcher

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Gnatcatcher habitat

with a Federal

Total area within Gnatcatcher habitat nexus where

Land ownership and county gnatcatcher study area Gnatcatcher habitat with federal nexus critical habitat is

hectares (acres) hectares (acres) hectares (acres) (b) determined to be

(a) prudent hectares

(acres)

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Federal:

Los Angeles.................................................. 186,004(459,625) 11,470(28,343) 11,470(28,343) 11,470(28,343)

Orange....................................................... 26,948(66,590) 991(2,448) 991(2,448) 991(2,448)

Riverside.................................................... 88,072(217,631) 5,616(13,877) 5,616(13,877) 5,616(13,877)

San Bernardino............................................... 22,890(56,562) 1,256(3,104) 1,256(3,104) 1,256(3,104)

San Diego.................................................... 178,285(440,550) 24,650(60,911) 24,650(60,911) 24,650(60,911)

Ventura...................................................... 77,287(190,980) 4,381(10,825) 4,381(10,825) 4,381(10,825)

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Total Federal............................................ 579,486(1,431,938) 48,364(119,508) 48,364(119,508) 48,364(119,508)

Non-Federal:

Los Angeles.................................................. 466,149(1,151,873) 53,058(131,108) 54(133) 0

Orange....................................................... 178,040(439,944) 23,572(58,247) (d)8,428(20,826) 473(1,169)

Riverside.................................................... 380,789(940,946) 62,248(153,817) (d)750(1,854) 83(205)

San Bernardino............................................... 128,953(318,649) 15,697(38,789) (c)0 0

San Diego.................................................... 510,191(1,260,706) 673,684(167,250) (d)32,627(80,622) 1,095(2,706)

Ventura...................................................... 221,167(546,514) 79,070(195,385) (d)243(600) 243(600)

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Total Non-Federal........................................ 1,885,289(4,658,632) 301,328(744,596) 42,102(104,035) 1,894(4,680)

========================================================================================

Grand Totals............................................. 2,464,775(6,090,570) 349,691(864,104) 90,465(223,543) 50,257(124,188)

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(a)Total amount of coastal sage scrub habitats within designated category.

(b)Extent of habitat where a Federal nexus exists.

(c)There are no known proposed projects or likely future activities with an established Federal nexus on lands within category.

(d)See text for individual Federal project action areas contributing to totals; action areas in these categories may include small amounts of State and

local lands.

Of the approximately 2,464,775 hectares (ha) (6,090,570 acres (ac))

of land within the study area, 77 percent is non-Federal land and 23

percent is Federal (Table 1). The GIS-based analysis of the study area

landscape further revealed that only about 349,691 ha (864,104 ac) or

14 percent of these lands support sage scrub habitat, with the majority

of the habitat occurring on privately or federally owned lands (Table

1). This estimate of habitat availability is more precise than our

previous efforts and may differ with some published estimates.

We followed existing statutes and regulations, the Court order, and

our policy, to identify those lands for which a designation of critical

habitat might be prudent. In general, we carried out the analytical

steps for determining prudency sequentially--(1) we determined whether

Federal lands were involved, (2) if lands were non-Federal, we

determined whether a Federal nexus existed, (3) we determined whether

any threats associated with designation as critical habitat of Federal

lands and those non-Federal lands having a Federal nexus outweigh the

benefits of such designation, and (4) we determined whether any threats

associated with designation of non-Federal lands that lack a Federal

nexus outweigh the benefits of such designation.

The potential threats associated with designation include an

increased likelihood of intentional acts of vandalism due to widespread

public misunderstanding of critical habitat. The benefits of

designating critical habitat include the section 7 consultation benefit

and the benefit of highlighting areas needing special management

considerations or protections. We describe several instances of

vandalism and intentional destruction of endangered species habitat in

the ``Prudency Finding'' section of this notice.

In addition to determining whether designation of an area as

critical habitat is prudent, we must also evaluate, in accordance with

section 3(5)(A) of the Act, whether the area is essential to the

conservation of the species and whether the area may require special

management considerations or protection before designating the area as

critical habitat. Section 4(b)(2) of the Act requires us to evaluate

economic and other impacts, and exclude any area from the designation

if the benefits of excluding the area outweigh the benefits of

including the area. However, we can not exclude an area if the

exclusion would result in the extinction of the species. These

additional evaluations required to designate critical habitat are not a

part of the prudency determination ordered by the Court, and, for the

most part, have been deferred consistent with the current listing

priority guidance published on May 8, 1998 (63 FR 10931).

Prudency Finding

The only regulatory impact of a critical habitat designation is

through the consultation provisions of section 7. Section 7 applies

only to activities having a Federal nexus, not to activities that are

exclusively State or private. Thus, the existence or lack of a Federal

nexus is a key consideration in determining whether designating

critical habitat is prudent. A Federal nexus exists when a Federal

agency carries out, funds, or authorizes an activity or project on

Federal or non-Federal lands. As we previously stated, the designation

of non-Federal lands that lack a Federal nexus may not be prudent

because the limited benefit may be outweighed by the threat of

destruction of these areas. On the other hand, the designation of non-

Federal lands where a Federal nexus exists or may exist in the future

could prove to be beneficial to the species. However, even for non-

Federal lands where there may be a future Federal nexus, we must weigh

the benefits of designation as

[[Page 5960]]

critical habitat against any threat associated with designation. We

discuss our prudency findings, arranged by land ownership, below.

Tribal Lands. Tribal lands include Tribal fee-owned and Tribal

trust lands. Tribal fee-owned lands are treated as private lands and

thus have no inherent Federal nexus. However, activities on such lands

are subject to section 7 consultation if a Federal action is involved.

Tribal trust lands have a Federal nexus in light of the trust

responsibility of the BIA. However, given the extremely small

proportion of coastal sage scrub habitat on Tribal lands (2 percent of

the 349,691 ha (864,104 ac) of total existing habitat) (Table 1), and

because no significant gnatcatcher populations are known to occur on

Tribal lands, we conclude that such lands are not essential to the

conservation of the species and do not meet the definition of critical

habitat.

Federal Lands. Federal lands are generally those administered by

the Department of Defense (DOD) (including the Army Corps of Engineers

(COE), Department of Navy, Marine Corps, and Air Force), Bureau of Land

Management (BLM), Federal Aviation Administration (FAA), Forest

Service, National Park Service, Fish and Wildlife Service, and Bureau

of Reclamation. For convenience, we included Tribal trust lands in the

Federal lands category in Table 1 due to the inherent BIA nexus;

however, for the reasons stated above in the discussion under ``Tribal

Lands,'' we conclude that Tribal trust lands are not essential to the

conservation of the species and do not meet the definition of critical

habitat. Approximately 579,486 ha (1,431,938 ac) of land within the

study area are in this Federal land category. Of this total, an

estimated 48,363 ha (119,508 ac), or 8 percent, support sage scrub

habitat (Table 1). We have determined that it is prudent to designate

critical habitat for the gnatcatcher on all Federal lands (not

including Tribal trust lands) containing coastal sage scrub within the

defined study area. We will further evaluate these lands during our

development of a proposed critical habitat rule. That evaluation may

indicate that not all of such habitat is essential for the conservation

of the species or requires special management. We may also exclude some

of these areas from designation as critical habitat because of economic

impacts of such designation.

Non-Federal Lands. Non-Federal lands include lands owned by local

and State jurisdictions and private entities. This category includes

Tribal fee-owned lands. A Federal nexus exists on non-Federal lands

when there is Federal authorization or funding of, or participation in,

a project or activity. In such cases, a Federal action agency is

required to consult with us under section 7(a)(2) of the Act if the

proposed activity or project may affect a listed species or any

designated critical habitat.

Several types of activities on non-Federal lands supporting sage

scrub habitat could potentially involve a Federal nexus. We have

evaluated all habitat within the range of the gnatcatcher and all types

of projects for a potential Federal nexus. For each Federal agency, we

describe below the agency's potential involvement in activities on non-

Federal lands and identify those areas for which designation of

critical habitat is prudent.

The BIA may provide funding, logistical support, and

technical assistance to Indian Tribes for activities that may involve

Tribal fee-owned lands. In some cases these actions require the BIA to

consult with us pursuant to section 7 of the Act. However, for the

reasons stated above in the discussion under ``Tribal Lands,'' we

conclude that Tribal fee-owned lands, as well as Tribal trust lands,

are not essential to the conservation of the species and do not meet

the definition of critical habitat.

The Federal Highway Administration (FHWA) provides funding

for transportation projects and approves linkages with the Federal

highway system. These activities require section 7 consultation. Two

regional transportation plans identify potential transportation

alignments and alternatives with potential FHWA involvement in southern

California. The 1998 Regional Transportation Plan authored by the

Southern California Association of Governments addresses Los Angeles,

Orange, Riverside, San Bernardino, and Ventura counties, while the

Regional Transportation Plan 1996-2020 authored by the San Diego

Association of Governments covers San Diego County. We have identified

several projects having a Federal nexus through FHWA involvement that

may affect gnatcatcher habitat. In Orange County, the action area of

the Foothill Transportation Corridor, which is under the jurisdiction

of FWHA, contains 461 ha (1,140 ac) of coastal sage scrub, and the

action area of the State Route 133/Laguna Canyon Road Realignment

project, which is also under the jurisdiction of FHWA, contains

approximately 12 ha (29 ac) of habitat. In San Diego County, State

Route 125 Project contains about 42 ha (105 ac) of habitat; State Route

905 Project contains about 8 ha (20 ac); State Route 78 Project

contains about 0.25 ha (0.65 ac) of habitat; and State Route 76 Project

contains about 7 ha (17 ac). The Moorpark Specific Plan 2/

Highway 118 Extension Project, which is a Ventura County project under

the jurisdiction of the FHWA, contains 243 ha (600 ac) of coastal sage

scrub habitat. We conclude that designation of critical habitat in

these areas is prudent.

The Fish and Wildlife Service conducts internal section 7

consultations when our actions may affect a listed species. Our

activities on non-Federal lands include issuance of permits for

incidental take of listed species under section 10 of the Act. Because

the decision to apply for an incidental take permit, thereby creating a

Federal nexus for consultation, rests solely with the potential non-

Federal permit applicant, we do not consider the section 10 permit

process as providing a reliable future Federal nexus for activities on

non-Federal lands.

The COE and the Environmental Protection Agency (EPA)

administer the Clean Water Act Section 404 permit program. Under

Section 404 of the Clean Water Act, a Department of the Army permit is

required for projects on non-Federal and Federal lands involving a

discharge of dredged or fill material into waters of the United States,

including wetlands. The COE and EPA do not generally have jurisdiction

over upland areas where gnatcatchers are found unless upland

development is dependent upon an activity requiring a Section 404

permit. For this reason, Section 404 of the Clean Water Act would not

ordinarily provide a Federal nexus for activities on non-Federal lands

where gnatcatchers occur. However, the COE has exercised jurisdiction

on the SilverHawk project in Riverside County which contains 83 ha (205

ac) of coastal sage scrub. We conclude that it is prudent to designate

these 83 ha (205 ac) of coastal sage scrub as critical habitat. We do

not know of any other projects in gnatcatcher habitat under the

jurisdiction of the COE.

By delegation of authority from the Department of Defense through

the Department of the Army, the COE also has responsibility to address

all ordnance and explosive wastes concerns and environmental

restoration activities at former defense sites. As a result, the COE

has jurisdiction over the East Elliot Ordnance Removal, a project that

would affect 243 ha (600 ac) of habitat in San Diego County. We

conclude that it is prudent to designate these 243 ha (600 ac) of

coastal sage scrub as critical habitat.

[[Page 5961]]

The BLM and Forest Service occasionally exchange their

lands for non-Federal lands. These land exchanges generally result in

more manageable landownership configurations for these agencies. These

agencies mostly try to acquire private inholdings within larger Federal

holdings in exchange for isolated Federal parcels that are surrounded

by non-Federal land. The BLM and Forest Service have already completed

most such land exchanges in southern California, and we do not

anticipate any future land exchange efforts that would affect the

gnatcatcher. Occasionally, projects such as roads or utility rights-of-

way will cross both private and Forest Service or BLM property. In

these instances, both Federal and non-Federal lands will be considered

during the section 7 consultation process. Because private lands in the

vicinity of Forest Service or BLM land generally do not contain

gnatcatcher habitat, the potential of utility projects on Federal land

also affecting gnatcatcher habitat on private land is speculative and

likely remote.

The Immigration and Naturalization Service (INS) conducts

activities along the United States/Mexico border and at immigration

check stations on major highways north of the border. Current

anticipated projects along the border include fences and roads to

increase interdiction of illegal immigrants. These projects are

generally located within 400 m (0.25 mile) of the international border.

Within this area, there are approximately 786 ha (1941 ac) of non-

Federal lands containing gnatcatcher habitat that may be affected by

these projects. We conclude that the designation of critical habitat in

these areas is prudent.

The Department of Housing and Urban Development (HUD)

conducts programs to assist private landowners in the purchase, sale,

and development of their properties. However, these programs generally

involve rehabilitation or redevelopment of previously disturbed areas

that do not contain gnatcatcher habitat.

The Federal Emergency Management Agency (FEMA) is involved

with non-Federal lands following natural disasters and other

emergencies such as floods, earthquakes, and other natural events.

FEMA's involvement in the projects typically does not occur during an

``emergency'' situation, but rather after the disaster has occurred, so

that any impact to gnatcatcher habitat from such natural disasters

would also likely have already occurred prior to FEMA involvement. For

example, actions taken on private lands during a flood event, placing

riprap for example, do not involve FEMA funds since private landowners

are taking actions immediately. FEMA may provide financial assistance

for the repair of culverts, roads, etc. after a disaster. In these

cases, FEMA consults with us to avoid or minimize impacts to

gnatcatchers. Additionally under the Hazard Mitigation Grant Program,

FEMA funds programs, including vegetation management activities to

reduce the likelihood of wildfires. FEMA is currently consulting with

us on these actions. The existence of a Federal nexus from future FEMA

disaster relief or other actions cannot be predicted and is at best

speculative.

The Federal Aviation Administration (FAA) oversees

activities at existing airports and evaluates proposed airport

expansion and new airport construction. Construction of new airports

and expansion of existing airports have already been planned in

southern California, and we considered these projects in the

development of this determination. The Ramona Airport expansion project

contains 9 ha (22 ac) of habitat. The designation of critical habitat

on this parcel is prudent. We do not know of any other FAA projects

proposed in gnatcatcher habitat.

As discussed above, FHWA, FAA, INS, and COE may carry out, fund, or

authorize projects in gnatcatcher habitat on non-Federal lands in San

Diego, Orange, and Ventura counties. We evaluated these lands to

determine whether a designation of critical habitat would be prudent.

We found that a Federal nexus exists for projects covering a total of

1,894 ha (4,680 ac), and determined that a designation of critical

habitat would be prudent for these lands.

Approved NCCP Efforts

Several multi-species planning efforts and habitat conservation

planning efforts have been undertaken within the southern California

range of the gnatcatcher to conserve the species and its coastal sage

scrub habitat. Principal among these are State of California Natural

Community Conservation Planning (NCCP) efforts in Orange and San Diego

counties. NCCP plans completed and permitted to date have resulted in

the conservation of 40,208 ha (99,310 ac) of gnatcatcher habitat.

In southern San Diego County, the development of the NCCP Multiple

Species Conservation Program (MSCP) has resulted in our approval of

three southern County subarea plans under section 10(a)(1)(B) of the

Act. These three southern subarea plans account for approximately 95

percent of the gnatcatcher habitat in southern San Diego County.

Approval is pending for four other subarea plans within southern San

Diego County's MSCP. This planning effort has resulted in the

establishment of conservation areas that collectively contain 28,844 ha

(71,274 ac) of coastal scrub habitat within a 69,573-ha (171,917-ac)

preserve area.

In addition, we have approved the Orange County NCCP Central/

Coastal Plan and issued an incidental take permit under section

10(a)(1)(B) of the Act. This planning effort has resulted in the

conservation of 15,677 ha (38,738 ac) of reserve lands, which contain

7,621 ha (18,831 ac) of coastal sage scrub habitat.

We have also approved several smaller multiple species habitat

conservation plans (HCPs) in San Diego Riverside, Los Angeles, and

Orange counties. These include, Bennett Property, Meadowlark Estates,

Fieldstone, and Poway Subarea Plan in San Diego County; Coyote Hills

East and Shell Oil in Orange County; Ocean Trails in Los Angeles

County; and Lake Mathews in Riverside County. These efforts have

resulted in the protection of 3,743 (9,250 ac) of gnatcatcher habitat.

The gnatcatcher habitat in the approved NCCPs in San Diego and

Orange counties was selected for permanent preservation and

configuration into a biologically viable interlocking system of

reserves by the local jurisdictions with our technical assistance and

that of the California Department of Fish and Game. The reserve system

established under the approved NCCP plans includes the coastal sage

scrub habitat subject to the jurisdiction of those plans that we

consider essential to the long-term survival and recovery of the

gnatcatcher. In addition, the plans provide for management of the

reserve lands to protect, restore, and enhance their value as

gnatcatcher habitat. Because the essential gnatcatcher habitat that is

subject to the jurisdiction of the approved plans is permanently

protected in the habitat reserves, no additional private lands covered

by the plans warrant designation as critical habitat. In addition,

because the gnatcatcher habitat preserved in the plan is managed for

the benefit of the gnatcatcher as required under the plans, there are

no ``additional management considerations or protections'' within the

meaning of ``critical habitat'' under section 3(5)(A)(ii) of the Act

required for those lands. Therefore, we have determined that private

lands subject to the approved NCCPs do not meet the

[[Page 5962]]

definition of critical habitat in the Act and that designation of such

lands would not benefit the gnatcatcher.

Private Lands Without a Federal Nexus

We conclude that the designation of critical habitat on the 259,226

ha (640,560 ac) of coastal sage scrub on non-Federal lands that either

lack a Federal nexus or are covered by approved HCPs under the NCCP

program is not prudent. Threats and acts of vandalism toward coastal

sage scrub habitats were most acute at the time of the publication of

the final listing for the gnatcatcher in 1993 (58 FR 16742). The

destruction of coastal scrub habitat in apparent attempts to circumvent

potential land use restrictions resulting from Endangered Species Act

prohibitions continues. Our Law Enforcement Division has received

information on six incidents of land clearing that cumulatively

resulted in the destruction of about 243 ha (600 ac) of coastal sage

habitat and the possible take of up to eight pairs of gnatcatchers.

These actions involved clearing of coastal sage scrub, in some

instances without County grading permits, in San Diego, Riverside and

San Bernardino counties. We also have recently initiated investigation

into activities that apparently affected two endangered species, the

Quino checkerspot butterfly and the Delhi Sands flower-loving fly.

As has been documented by a series of recent newspaper articles,

some members of the public believe that--(1) critical habitat can be

``* * *put off limits for development* * *'' (San Diego Union Tribune,

May 22, 1997), and (2) the presence of listed species on a land parcel

can create ``* * *a lot of uncertainty among developers* * *'' and

complicate land sales (Riverside Press-Enterprise, January 7, 1998).

The vast majority of private lands lack a Federal nexus that would

invoke the section 7 prohibition against adverse modification of

critical habitat. Also, considering the common misunderstandings about

the effects of designation, we believe that designating such lands as

critical habitat would increase the instances of habitat destruction

and exacerbate threats to the gnatcatcher. Therefore, we conclude that

the threats that would result from designating these lands as critical

habitat outweigh the benefit that would be provided.

We will continue to investigate all instances of coastal sage scrub

clearing that may result in an unauthorized ``take'' of gnatcatchers in

violation of section 9 of the Act. Also, we are continuing extensive

outreach efforts to address public misunderstandings about the

gnatcatcher and its habitat. We are continuing to encourage local

jurisdictions to pursue comprehensive multi-species conservation plans

(e.g., NCCP plans) to conserve the gnatcatcher and other sensitive

species. Our cooperative approach is intended to ameliorate the

circumstances that may have led private landowners to destroy coastal

sage scrub habitat and to correct the misinformation presented by some

media accounts.

We acknowledge that in some cases a designation of critical habitat

on private lands may provide some benefit to a species by highlighting

areas where the species may occur or areas that are important to the

species' recovery. However, as discussed above, the status of the

gnatcatcher, its coastal sage scrub habitat requirements, and the

location of that habitat are already well known, and this information

is readily available. County planning agencies inform members of the

public about sensitive resources, including the gnatcatcher and its

habitat, that may potentially occur on their lands. For example, the

County of San Diego informs applicants for grading permits of the

status of gnatcatchers and may require them to survey for the birds

prior to receiving a permit. Numerous newspaper articles have also

appeared describing the gnatcatcher and its habitat. The plight of this

species and coastal sage scrub habitat is well known to the public, and

a designation of critical habitat on private lands will not appreciably

increase landowners' knowledge of areas important for gnatcatcher

conservation.

We, therefore, conclude that no benefit would arise from

designating critical habitat on private lands that do not have a

Federal nexus. To the contrary, we believe it is likely that a

designation of critical habitat on private lands may incite some

members of the public and increase incidences of habitat destruction

through acts of vandalism above current levels. Because, in this case,

no benefit can be identified, and because of increased threats to the

gnatcatcher and its habitat likely to result from designation, we

conclude that designation of critical habitat on private lands that

lack a Federal nexus is not prudent.

Summary and Conclusion

We conclude that designation of critical habitat totaling 50,257 ha

(124,188 ac) on lands within the United States portion of the range of

the gnatcatcher is prudent (Table 1). This total includes all Federal

lands within the range of the gnatcatcher (48,364 ha (119,508 ac)) and

1,894 ha (4,680 ac) of non-Federal lands where a Federal nexus exists.

In addition to determining whether designation of an area as

critical habitat is prudent, we must also evaluate, in accordance with

section 3(5)(A) of the Act, whether the area is essential to the

conservation of the species and whether the area may require special

management considerations or protection before designating the area as

critical habitat. Also, section 4(b)(2) of the Act requires us to

evaluate economic and other impacts, and exclude any area from the

designation if the benefits of excluding the area outweigh the benefits

of including the area, unless the exclusion would result in the

extinction of the species. These additional determinations required to

designate critical habitat are not a part of the prudency determination

ordered by the Court. We are deferring these additional determinations

consistent with the current listing priority guidance published (63 FR

10931) described below.

Listing Priority Guidance

We published Listing Priority Guidance for Fiscal Years 1998 and

1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the order in

which we will process rulemakings, giving highest priority (Tier 1) to

processing emergency rules to add species to the Lists of Endangered

and Threatened Wildlife and Plants; second priority (Tier 2) to

processing final determinations on proposals to add species to the

lists, processing new listing proposals, processing administrative

findings on petitions (to add species to the lists, delist species, or

reclassify listed species), and processing a limited number of proposed

and final rules to delist or reclassify species; and third priority

(Tier 3) to processing proposed and final rules designating critical

habitat. Upon completion of higher priority listing actions in

accordance with the listing priority guidance, we intend to go forward

with the critical habitat designation process for the gnatcatcher.

References Cited

Riverside Press-Enterprise. January 7, 1998. Rats! Irked developers

frustrated by butterfly. Page 22.

San Diego Union Tribune. May 22, 1997. Court says gnatcatcher must

have safe habitat. Page A-3.

Authors

The primary authors of this document are Loren R. Hays, Doug

Krofta, Art Davenport, Clark Roberts, and Jim

[[Page 5963]]

Bartel, Carlsbad Fish and Wildlife Office (see ADDRESSES section).

Authority

The authority for this action is the Endangered Species Act of

1973, as amended (16 U.S.C. 1531 et seq.).

Dated: January 21, 1999.

Jamie Rappaport Clark,

Director, U.S. Fish and Wildlife Service.

[FR Doc. 99-2866 Filed 2-5-99; 8:45 am]

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