Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus)

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0008; 92210-1117-0000-FY08 B4]

RIN 1018-AV07

Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the San Bernardino Kangaroo Rat (Dipodomys merriami parvus)

AGENCY:

Fish and Wildlife Service, Interior.

ACTION:

Final rule.

SUMMARY:

We, the U.S. Fish and Wildlife Service (Service), are designating final revised critical habitat for the San Bernardino kangaroo rat (

Dipodomys merriami parvus

) under the Endangered Species Act of 1973, as amended (Act). Approximately 7,779 acres (ac) (3,148 hectares (ha)) of habitat in San Bernardino and Riverside Counties, California, are being designated as critical habitat for the San Bernardino kangaroo rat. This final revised designation constitutes a reduction of approximately 25,516 ac (10,326 ha) from the 2002 designation of critical habitat for the San Bernardino kangaroo rat.

DATES:

This rule becomes effective on November 17, 2008.

ADDRESSES:

The final rule, final economic analysis, and map of critical habitat will be available on the Internet at

http://www.regulations.gov

and

http://www.fws.gov/carlsbad/

. Supporting documentation we used in preparing this final rule will be available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-5901.

FOR FURTHER INFORMATION CONTACT:

Jim Bartel, Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and Wildlife Office (see

ADDRESSES

section). If you use a telecommunications device for the deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

It is our intent to discuss only those topics directly relevant to the designation of critical habitat for the San Bernardino kangaroo rat in this final rule. For more information on the taxonomy, biology, and ecology of the San Bernardino kangaroo rat, refer to the final listing rule published in the

Federal Register

on September 24, 1998 (63 FR 51005), the original final critical habitat rule published in the

Federal Register

on April 23, 2002 (67 FR 19812), the proposed rule to revise critical habitat published in the

Federal Register

on June 19, 2007 (72 FR 33808), and the April 16, 2008, notice of availability of the draft economic analysis (DEA) and changes to the proposed rule (73 FR 20581).

Subspecies Description, Life History, Distribution, Ecology, and Habitat

No new substantial information pertaining to the subspecies description, life history, distribution, ecology, or habitat of the San Bernardino kangaroo rat was received following the 2007 proposed rule to revise critical habitat for this subspecies. Therefore, please refer to the final listing rule published in the

Federal Register

on September 24, 1998 (63 FR 51005), and the proposed rule to revise critical habitat published in the

Federal Register

on June 19, 2007 (72 FR 33808), for a discussion of the subspecies' description, life history, distribution, ecology, and habitat.

Previous Federal Actions

As discussed in the proposed rule to revise critical habitat for this subspecies, the Service agreed, as part of a settlement agreement, to submit to the

Federal Register

a proposal to revise critical habitat, if prudent, on or before June 1, 2007, and a final rule by June 1, 2008, which was later extended to October 1, 2008. We published a proposed rule to revise critical habitat in the

Federal Register

on June 19, 2007 (72 FR 33808), and announced the first public comment period on the proposed rule. On December 11, 2007 (72 FR 70284), we opened a second public comment period on the proposed rule and announced our intention to hold two public hearings on the proposed rule that were held in San Bernardino, California, on January 10, 2008. On April 16, 2008, we published in the

Federal Register

a notice of availability (NOA) announcing the availability of the DEA (dated February 6, 2008), opening the third public comment period on the proposed rule to revise critical habitat, and announcing changes to the proposed rule (73 FR 20581). In addition, on July 29, 2008, we published in the

Federal Register

an NOA announcing the availability of an Addendum to the Economic Analysis, opening a fourth public comment period (73 FR 43910). This final rule completes our obligations under the March 23, 2006, settlement agreement regarding the subject subspecies. For a discussion of additional information on previous Federal actions concerning the San Bernardino kangaroo rat, refer to the final listing rule published in the

Federal Register

on September 24, 1998 (63 FR 51005), and the final designation of critical habitat published in the

Federal Register

on April 23, 2002 (67 FR 19812).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed rule to revise critical habitat for the San Bernardino kangaroo rat during four comment periods. The first comment period opened June 19, 2007 (72 FR 33808), associated with the publication of the proposed rule, and closed August 20, 2007. We received one request for a public hearing during this comment period. The second comment period opened December 11, 2007 (72 FR 70284), associated with the publication of a notice of public hearings that were held January 10, 2008, and closed January 25, 2008. The third comment period opened April 16, 2008 (73 FR 20581), associated with the notice of availability of the DEA, and closed May 16, 2008. The fourth comment period opened July 29, 2008 (73 FR 43910), associated with the availability of an addendum to the economic analysis, and closed August 13, 2008. During these four public comment periods, we contacted appropriate Federal, State, and local agencies; scientific organizations; and other interested parties and invited them to comment on the proposed rule to revise critical habitat for this subspecies and the associated DEA.

During the first comment period, we received 12 public comments directly addressing the proposed revision of critical habitat: 1 from a Federal agency, 1 from a local government, 9 from organizations, and 1 from an individual. During the second comment period and the January 10, 2008, public hearings, we received 29 comments directly addressing the proposed revision of critical habitat for this subspecies: 4 from local governments, 6 from organizations, and 19 from individuals. During the third comment period, we received 3 comments directly addressing the proposed revision of critical habitat for this subspecies and/or the DEA: 1 from a Federal agency and 2 from organizations. During the fourth comment period, we received 5 comments directly addressing the proposed revision of critical habitat for

the San Bernardino kangaroo rat and/or the DEA: 3 from organizations, and 2 from individuals.

Peer Review

In accordance with our policy on peer review in Act (16 U.S.C. 1531

et seq.

) activities, published on July 1, 1994 (59 FR 34270), we solicited expert opinions from five knowledgeable individuals with scientific expertise that included familiarity with the subspecies, the geographic region in which it occurs, and conservation biology principles. We received responses from two of the peer reviewers. The peer reviewers generally concurred with our methods and conclusions and indicated that the Service did a thorough job of delineating critical habitat using the best available scientific information.

We reviewed all comments received from the peer reviewers and the public for substantive issues and new information regarding the designation of critical habitat for the San Bernardino kangaroo rat. All public comments are addressed in the following summary and incorporated into the final rule as appropriate.

Peer Reviewer Comments

Comment 1:

One peer reviewer commented that in the 2007 proposed rule to revise critical habitat, the Service's non-inclusion of areas designated as critical habitat in 2002 was not supported in the document with empirical data or some type of population viability modeling.

Our Response:

Our revised critical habitat designation is substantially smaller than the 2002 critical habitat designation. Given the new information that became available to us in the five years since the previous designation, we find that we erroneously designated some areas. Areas previously designated in 2002 but not designated in this revised rule do not meet the definition of critical habitat. The changes in this rule are due to several factors. Better biological information allowed us to more specifically define primary constituent elements (PCEs) for this species, and site visits in December 2006 and January 2007 allowed us to more precisely define the areas that meet the definition of critical habitat on the ground. This allowed us to remove areas that do not meet our criteria for identifying the physical or biological features that are essential to the conservation of the species. The 2002 critical habitat designation included areas in which few occurrences were recorded. Such areas of low-density occupation or sporadic occupancy were removed from the proposed revised designation because they do not support core populations (i.e., areas where the subspecies has been repeatedly detected through live trapping). Finally, we employed refined mapping techniques in the current revision to more precisely map areas that contain PCEs. This more refined approach allowed us to remove areas that do not meet the definition of critical habitat. See the “Summary of Changes From the 2002 Critical Habitat Designation” and “Criteria Used To Identify Critical Habitat” sections of this final rule for more information.

We based the proposed revision of critical habitat for the San Bernardino kangaroo rat on the best available scientific and commercial data including peer-reviewed published literature, gray literature (non-published or non-peer-reviewed survey or research reports), survey information, Geographic Information System coverage data, and site visits with subspecies experts. We delineated proposed critical habitat using criteria based on the biological needs of the subspecies according to the best available science. Application of these criteria (see “Criteria Used To Identify Critical Habitat” section of this final rule) results in the determination of the physical and biological features that are essential to the conservation of this subspecies, as identified by the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the subspecies. The areas proposed as critical habitat: (1) Support core populations that are considered necessary for conservation of the subspecies including areas demographically disconnected from the largest populations, but which may be important for the long-term conservation of the subspecies; and (2) include non-degraded alluvial fans, washes, floodplains, and adjacent upland areas with appropriate soils and vegetation. At this time, a population viability analysis has not been completed for the San Bernardino kangaroo rat. When delineating critical habitat for the San Bernardino kangaroo rat, we used the best available scientific information to determine those areas containing the features essential to its conservation.

Comment 2:

One peer reviewer commented on the reduction of critical habitat from what was designated in 2002. The peer reviewer stated that the 2007 proposed rule to revise critical habitat explains that this reduction is a result of additional knowledge about specific habitat requirements and occurrence data. The peer reviewer further questioned if the 2002 critical habitat designation was too superficial as a result of being rushed, or if the 2007 proposed revision to the critical habitat designation is overly conservative. The peer reviewer also suggested that we provide additional rationale for not designating areas with low population density or low habitat quality.

Our Response:

The Act defines critical habitat as (1) the specific areas within the geographical area occupied by the species at the time it is listed on which are found those physical or biological features (a) essential to the conservation of the species, and (b) which may require special management considerations or protection, and (2) specific areas outside the geographical area occupied by the species at the time it is listed upon a determination by the Secretary that such areas are essential for the conservation of the species. The reduction in total area from what was designated in 2002 is primarily the result of: (1) Exclusions of habitat under section 4(b)(2) of the Act; (2) revision of the primary constituent elements: (3) revision of our criteria used to identify critical habitat; and (4) removal of lands within the geographical area occupied by the subspecies at the time it was listed that do not contain the physical or biological features as identified by the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the subspecies.

In 2002, we used the best available scientific information at that time to delineate critical habitat and do not consider the 2002 designation to be “superficial.” However, as acknowledged by the peer reviewer, we have significant additional occurrence data and knowledge about specific habitat requirements of this subspecies that was not known when we first designated critical habitat for the San Bernardino kangaroo rat in 2002. We utilized this data to appropriately revise the primary constituent elements and criteria used to identify critical habitat consistent with the statutory obligations of the Act. In addition, since 2002, case law has developed that has helped to further our understanding of the statutory obligations of the Act and the definition of critical habitat (

e.g., The Cape Hatteras Access Preservation Alliance

v.

U.S. Dep't of the Interior

, 344 F. Supp. 2d 108 (D.D.C. 2004);

Home Builders Ass'n of N. Cal.

v.

U.S. Fish and Wildlife Service

, U.S. Dist. LEXIS 80255 (E.D. Cal. 2006); and

Arizona Cattle Growers' Ass'n

v.

Kempthorne

, 534 F. Supp. 2d 1013 (D. Ariz. 2008)). Thus, we have refined our approach to this critical habitat designation to insure compliance with the Act, including the identification of the geographical areas occupied by the subspecies at the time of listing, the

identification of physical or biological features (and primary constituent elements) essential to the conservation of the subspecies, determination of any areas outside the geographical area occupied by the subspecies at the time of listing that are essential for the conservation of the subspecies, and appropriate exclusions under section 4(b)(2) of the Act. A complete discussion of how data collected since the 2002 designation was utilized to refine the proposed designation can be found in the “Summary of Changes From the 2002 Critical Habitat Designation” and “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” sections of this final rule.

As discussed in the “Criteria Used To Identify Critical Habitat” section of this final rule, we delineated critical habitat for the San Bernardino kangaroo rat using the following criteria: (1) Areas occupied by the subspecies at the time of listing, and currently occupied, within the historical range of the subspecies; (2) areas retaining fluvial dynamics containing one or more of the PCEs for the subspecies; (3) areas supporting a core population of the subspecies; and (4) areas demographically disconnected from the largest populations, but which may be important for the long-term recovery of the subspecies. Application of these criteria results in the determination of the physical and biological features that are essential to the conservation of this subspecies, identified as the subspecies' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. Specifically, as noted by the commenter, some areas occupied at low densities are not included in the final revised critical habitat designation. Areas occupied at low densities are not likely to contribute to recovery of the subspecies, and we do not have information suggesting that the areas in question support core populations or information suggesting these areas would be capable of supporting a core population in the near future.

Conservation (i.e., recovery) is defined in section 3 of the Act as the “use of all methods and procedures which are necessary to bring any endangered species or threatened species to the point at which the measures provided pursuant to this Act are no longer necessary.” In accordance with section 4(a)(1) of the Act, we determine if any species is an endangered or threatened species (or revise its listed status) because of any of the five threat factors identified in the Act (i.e., (A) present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence). Therefore, conservation, or recovery, is achieved when a five factor analysis indicates that current and future threats have been minimized to an extent that the species is no longer in danger of extinction or likely to become endangered in the foreseeable future. Recovery is a dynamic process requiring adaptive management of threats and there are many paths to accomplishing recovery of a species. We believe that the lands identified in this rule as meeting the definition of critical habitat are adequate to ensure the conservation of the San Bernardino kangaroo rat throughout its extant range based on the best available scientific information at this time.

We recognize that some efforts that positively contribute to the conservation of this subspecies may occur outside the boundaries of this final designation; however, we do not believe that this designation is “conservative.” Rather, our proposed designation in combination with the NOA, which announced the addition of areas to the proposed designation, and this final designation accurately describe all specific areas meeting the statutory definition of critical habitat for the San Bernardino kangaroo rat. See the “Summary of Changes From the 2002 Critical Habitat Designation” and “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” sections of this final rule for more information.

Comment 3:

One peer reviewer commented that the Service's focus on core populations as a primary criterion for designating critical habitat is logical and appropriate. The reviewer further commented that while the core populations may be necessary for conservation of the San Bernardino kangaroo rat, they may not be sufficient in area or connectivity to achieve a reasonable probability of persistence in the face of periodic flooding and drought. Another peer reviewer commented that the proposed revision to critical habitat includes dispersal corridors and habitat connectivity necessary for the subspecies.

Our Response:

In this final revised designation we focused primarily on core populations in undisturbed habitat in the Santa Ana River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe that protecting these three largest core populations is necessary for the conservation of the San Bernardino kangaroo rat. In response to this and other comments, we revised our criteria to also capture occupied areas demographically disconnected from the three largest populations, but which may be important for the long-term conservation of the subspecies (for a detailed discussion see “Criteria Used To Identify Critical Habitat” section of this final rule). We then re-evaluated the proposed critical habitat boundaries and included in the designation additional areas in Mill Creek, Plunge Creek, Cable Creek wash, and Bautista Creek. We are not designating small, isolated areas of degraded habitat or areas devoid of fluvial processes because such areas likely only support unsustainable populations that would not contribute to the recovery of the subspecies. We believe that with these revisions, we included sufficient lowland and upland alluvial sage scrub habitat within a sufficient number of critical habitat units to ensure connectivity and persistence of the subspecies following periodic flooding and drought.

Comment 4:

One peer reviewer had concerns about excluding areas from the critical habitat designation that are protected by a management or conservation agreement, particularly because the proposed exclusion of those areas increases the degree to which critical habitat in all three units is fragmented. This reviewer questioned whether proposed exclusions render the remaining critical habitat areas sufficient for the subspecies' recovery if management actions on the excluded areas fail to preserve their value to the subspecies. Another peer reviewer agreed with the logic of excluding from the final revised critical habitat designation areas that are covered by management plans that benefit the San Bernardino kangaroo rat, but the reviewer questioned whether monitoring would be conducted or reports would be required ensuring compliance with these plans, or whether the plans are having the desired effects.

Our Response:

Section 4(b)(2) of the Act directs the Secretary to designate critical habitat on the basis of the best scientific data available and after taking into consideration the economic impacts, national security impacts, and any other relevant impacts of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area

as critical habitat, unless the failure to designate an area as critical habitat will result in the extinction of the species. The Service recognizes that 80 percent of federally listed species occur either partially or solely on private lands (Crouse et al. 2002) and we will only achieve recovery of federally listed species with the cooperation of private landowners. As discussed in the “Conservation Partnerships on Non-Federal Lands” section below, we believe that designation of critical habitat on private lands can negatively impact the working relationships and conservation partnerships we have formed with private landowners.

In making the Woolly-Star Preserve Area (WSPA) Management Plans, the Former Norton Air Force Base Conservation Management Plan (CMP), the Western Riverside County Multiple Species Habitat Conservation Plan (MSHCP), and the Cajon Creek Habitat Conservation Management Area Habitat Enhancement and Management Plan (Cajon Creek HCMA HEMP) exclusions, we evaluated the benefits of designating non-Federal lands that may not have a Federal nexus for consultation while considering if our existing partnerships have, or will, result in greater conservation benefits to the San Bernardino kangaroo rat and its habitat than would likely result from consultation on a designation. We balanced the benefits of inclusion against the benefits of exclusion (i.e., the benefits of preserving partnerships and encouraging development of additional HCPs and other conservation plans in the future). All areas excluded under 4(b)(2) that have completed habitat conservation plans (HCPs) or other Service-approved management plans receive long-term protection and conservation that provides equivalent or greater conservation benefit to the San Bernardino kangaroo rat than would likely result from including these areas in the designation, and the exclusion of lands covered by these plans will not jeopardize the continued existence of the subspecies. The conservation objectives in these plans for the San Bernardino kangaroo rat, and the implementation status of these plans to date, are discussed in the “Exclusions Under Section 4(b)(2) of the Act” section below. The conservation and management of San Bernardino kangaroo rat habitat as described in these management plans have reduced and will continue to remove or reduce known threats to the subspecies and its habitat, contributing to the survival and recovery of this subspecies. We believe the exclusions we made in this final revised rule are legally supported under section 4(b)(2) of the Act and scientifically justified.

The exclusion of critical habitat does not dismiss or lessen the value of these areas to the overall conservation of this subspecies. Rather, we believe that the judicious exclusion of specific areas of non-Federal lands from critical habitat designations, where we have developed close partnerships with non-Federal land owners that resulted in the development of HCPs or other voluntary conservation plans, can contribute to species recovery and provide a superior level of conservation than the designation of critical habitat alone. As described in detail in the “Exclusions Under Section 4(b)(2) of the Act” section below, we determined that the benefits of excluding areas covered by the WSPA Management Plans, the Former Norton Air Force Base CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP outweigh the benefits of designating these lands, and that these exclusions will not result in the extinction of the San Bernardino kangaroo rat. Surveys and monitoring will continue to be required for areas excluded based on completed management plans to ensure they are effective (see “Areas Considered for Exclusion Under Section 4(b)(2) of the Act” section below for more information).

Comment 5:

One peer reviewer discussed our identification of PCEs for the San Bernardino kangaroo rat, and specifically agreed that the PCEs are based on the best available science, and that the identified PCEs appropriately provide for the conservation of the subspecies.

Our Response:

The description of the PCEs for the San Bernardino kangaroo rat is based on the best available scientific and commercial data regarding the subspecies, including a compilation of data from peer-reviewed, published literature; unpublished or non-peer reviewed survey and research reports; and opinions of biologists knowledgeable about the San Bernardino kangaroo rat and its habitat. Consequently, the PCEs, as described in this final rule, represent our best assessment of what habitat components, in the appropriate quantity and spatial arrangement, are essential to the conservation of the subspecies.

Public Comments

Comments Related to Criteria Used To Identify Critical Habitat

Comment 6:

Two commenters stated that the proposed rule is flawed because it fails to include several significant areas of occupied habitat previously designated as critical habitat in 2002 that support one or more of the PCEs: (1) Three areas in the Santa Ana River wash; (2) the Etiwanda Fan; (3) four areas in Cajon/Lytle Creeks; and (4) two areas in the San Jacinto River. The commenters stated that the Service provided no data to support the conclusion that these areas are not occupied by the subspecies (e.g., trapping data) or do not contain the PCEs. They further stated that several areas (i.e., Etiwanda Fan, areas in Cajon/Lytle Creeks) that were not included in the proposed designation are currently occupied to some extent and, therefore, must contain the PCEs required by the species. One commenter stated that all populations inclusive of peripheral populations are essential for recovery and that not including all occupied areas as critical habitat will continue to fragment and drive the species closer to the brink of extinction.

Another commenter stated that according to a review of occurrence information for the San Bernardino kangaroo rat and habitat assessments conducted in 2007, the following areas are currently occupied by the subspecies and contain the PCEs, and therefore, should have been included in the proposed designation: (1) Three areas along Plunge Creek in the Santa Ana River watershed; (2) one area in the Santa Ana River; (3) one area in Lytle Creek; (4) Cable Creek in the Lytle/Cajon Creeks watershed; (5) Bautista Creek in the San Jacinto River watershed; and (6) the Etiwanda Fan. Several commenters also called for the reevaluation of Plunge Creek, the Santa Ana River in Redlands, Lytle Creek near the 210 Freeway, Cable Creek, and the Etiwanda Fan.

Certain areas that were not included in the June 19, 2007, proposed revision to critical habitat (72 FR 33808) were commented on more frequently than others mentioned above: Specifically, Plunge Creek, Mill Creek, the Cable Creek wash, and Bautista Creek. Multiple comments received during the first two comment periods and the public hearings, including comments received from biologists familiar with the San Bernardino kangaroo rat, indicated the importance of these areas as confirmed occupied habitat containing the PCEs, and which retain fluvial input and that may be necessary for the long-term conservation of the subspecies.

Our Response:

For a detailed discussion of the areas previously designated as critical habitat that are not included in this revised designation, see the “Summary of Changes From the

2002 Critical Habitat Designation” section of this final rule. Under section 3(5)(C) of the Act, critical habitat shall not include the entire geographical area which can be occupied by the species unless otherwise determined by the Secretary. Critical habitat is defined in section 3 of the Act as (1) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (a) essential to the conservation of the species and (b) that may require special management considerations or protection; and (2) 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. In developing the proposed rule to revise critical habitat, we considered the geographical area occupied by the subspecies at the time of listing, and within that broad geographical area, identified those areas that, based on the best available scientific and commercial data, contain the physical and biological features essential to the subspecies' conservation. We believe that our proposed designation, including changes to the proposed designation outlined in the April 16, 2008, NOA (73 FR 20581), and this final designation accurately describe all areas meeting the definition of critical habitat for the San Bernardino kangaroo rat.

As discussed in the proposed rule to revise critical habitat and the April 16, 2008, NOA announcing changes to the proposed rule, we identified critical habitat for this subspecies based on several criteria. Application of these criteria (see “Criteria Used To Identify Critical Habitat” section of this final rule) results in the determination of the physical and biological features that are essential to the conservation of this subspecies, as identified by the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the subspecies. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. The areas designated as critical habitat (1) support core populations that are considered necessary for conservation of the subspecies, including areas demographically disconnected from the largest populations that may be important for the long-term conservation of the subspecies; and (2) include non-degraded alluvial fans, washes, floodplains, and adjacent upland areas with appropriate soils and vegetation.

We recognize that our designation does not encompass all known occurrences of this subspecies as noted by the commenters. Small, isolated areas of degraded habitat or areas devoid of fluvial processes are likely to only support unsustainable populations that would not contribute to the recovery of the subspecies. Although we are not designating all known occurrences of the San Bernardino kangaroo rat, we believe the criteria we used to identify areas that contain the features essential to the conservation of the subspecies, and which are included in the final revised critical habitat designation, are adequate to ensure the conservation of the subspecies throughout its extant range. Species that are protected across their ranges are expected to have lower likelihoods of extinction (Soule and Simberloff 1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating multiple locations across the range of the subspecies to prevent range collapse.

In light of significant comments received during the comment periods for the proposed rule on areas that are essential to the subspecies and should be included in the designation, and new information received, we revised our criteria used to identify critical habitat to capture additional self-sustaining populations of San Bernardino kangaroo rats necessary for recovery (see “Criteria Used To Identify Critical Habitat” section below for more information). We then re-evaluated the proposed critical habitat boundaries and included in the designation additional areas in Mill Creek, Plunge Creek (including areas providing habitat connectivity of the Plunge Creek wash with the Santa Ana River wash), Cable Creek wash, and Bautista Creek. These areas are currently designated as critical habitat for the San Bernardino kangaroo rat (67 FR 19812, April 23, 2002); however, we did not propose these areas as critical habitat in the June 19, 2007 (73 FR 33808), proposed revision to critical habitat, but announced the addition of these areas as changes to the proposed rule in the April 16, 2008, NOA. See the “Summary of Changes From the 2007 Proposed Rule to Revise Critical Habitat” and the “Unit Descriptions” sections of this final rule for more information.

Comment 7:

One commenter indicated concerns about the following statement made in the proposed rule: “Portions of the habitat downstream of the Bautista Creek confluence have been or are in the process of being developed or are being used for water conservation activities and therefore this habitat does not contain the PCEs.” The commenter indicated that these areas should be included in critical habitat and further stated that no data was presented in the proposed rule indicating that these areas are no longer occupied, no longer contain the PCEs; and if degraded, how these areas have become degraded over the last five years.

Our Response:

In the 2007 proposed rule, we discussed an integrated water recharge and recovery program to be implemented by Eastern Municipal Water District at the confluence of the San Jacinto River and Bautista Creek within existing critical habitat Unit 3. The project was expected to impact approximately 37 ac (15 ha) of floodplain and upland habitat (Service 2006, p. 21). The Service issued a biological opinion for this project on November 16, 2006 (Service 2006, FWS-WRIV-4051.5), which found that the proposed action would not jeopardize the continued existence of the subspecies nor adversely modify the currently designated critical habitat. Although Map 4 of the proposed rule (72 FR 33808) depicts these lands within the boundary of proposed critical habitat Unit 3, the text of the proposed rule explained that we were not proposing to include these lands as revised critical habitat because they had been addressed by the section 7 consultation and biological opinion, and the proposed action would permanently impact this habitat. The water recharge and recovery program lands total approximately 39 ac (16 ha), not 37 ac (15 ha) as previously reported in the proposed rule (72 FR 33808), all of which are currently designated as critical habitat for the San Bernardino kangaroo rat. These approximately 39 ac (16 ha) of lands are divided into five individual outparcels ranging in size from less than an acre to 35 ac (14 ha) and each areas is surrounded by other lands that we did include in the proposed revision to designated critical habitat. The commenter is correct in pointing out that this area has not yet been developed and the area does currently contain the physical and biological features essential to the conservation of this subspecies, as identified by the PCEs in the appropriate quantity and spatial arrangement. Furthermore, as indicated in the biological opinion, we are aware that this area is occupied.

Following publication of the proposed rule to revise the critical habitat designation, several surveys were conducted within these 39 ac (16 ha) in association with the integrated water recharge and recovery project. These surveys have indicated that the population of San Bernardino kangaroo rats in these areas is larger than previously believed and exceeds what we estimated the population to be in

2006. Based on these survey results, the Army Corps of Engineers requested that we re-initiate consultation on this project. Because these lands are currently designated as critical habitat and the maps indicating areas proposed as critical habitat included these areas (72 FR 33808), and in light of the public comment, new survey data and re-initiation of consultation on the Eastern Municipal Water District project, we included these 39 ac (16 ha) in Unit 3 as lands that meet the definition of critical habitat. We believe that inclusion of these 39 ac (16 ha) is a logical outgrowth of the proposed rule and is scientifically sound and legally justified. We determined, however, that these 39 ac (16 ac) should be excluded from the final critical habitat designation under section 4(b)(2) of the Act. See the “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” and “Exclusions Under Section 4(b)(2) of the Act” sections of this final rule for more information.

Comment 8:

Several commenters stated that the Service cannot focus primarily on its definition of core populations (i.e., areas where the subspecies was repeatedly detected through live trapping) when false negatives occur from live trapping surveys 20 percent of the time. They further stated that the Service's definition of core populations is inappropriate, would result in substantial San Bernardino kangaroo rat populations being excluded from critical habitat, and should be redefined. A number of commenters suggested peripheral or sporadically occupied locations are essential for conservation of the subspecies. One commenter stated that areas currently having low populations should not be removed from critical habitat. The commenter stated that the Service's assertion that some viable San Bernardino kangaroo rat populations do not fit the definition of a core population, and are therefore less important, has no biological basis for an animal that has already lost 90 percent of its historical range. The commenter stated that by not including potential or occupied habitat that has been degraded as critical habitat would allow private landowners and public agencies the ability to further degrade those areas that are important to the conservation of the San Bernardino kangaroo rat.

Our Response:

As discussed in the “Criteria Used To Identify Critical Habitat” section of this final rule, we delineated critical habitat for the San Bernardino kangaroo rat using the following criteria: (1) Areas occupied by the subspecies at the time of listing, and currently occupied, within the historical range of the subspecies; (2) areas retaining fluvial dynamics containing one or more of the PCEs for the subspecies; (3) areas supporting a core population of the subspecies; and (4) areas demographically disconnected from the largest populations, but which may be important for the long-term recovery of the subspecies. Application of these criteria results in the determination of the physical and biological features that are essential to the conservation of this subspecies, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. Based on information provided in public comments, these criteria were revised after the June 19, 2007 (72 FR 33808), proposed revision to critical habitat to capture essential features supporting additional self-sustaining populations of San Bernardino kangaroo rats (see “Criteria Used To Identify Critical Habitat” section below for more information). As a result, we added four areas totaling approximately 1,579 ac (639 ha) to the proposed revision as announced in the April 16, 2008 NOA (73 FR 20581). We believe our final designation accurately describes all specific areas meeting the definition of critical habitat for the San Bernardino kangaroo rat. We acknowledge that false negatives can occur from live trapping surveys for San Bernardino kangaroo rats; however, as required under the Act, we used the best available scientific information in determining areas occupied by this subspecies.

We recognize that our designation of critical habitat for the San Bernardino kangaroo rat does not encompass all known occurrences of this subspecies as noted by the commenters. In this designation, we focused primarily on core populations (i.e., areas where the subspecies was repeatedly detected through live trapping) in undisturbed habitat in the Santa Ana River, Lytle/Cajon Creeks, and the San Jacinto River washes. We believe protecting the largest core populations is necessary for recovery of the subspecies. Small, isolated areas of degraded habitat or areas devoid of fluvial processes are likely to only support unsustainable populations that would not contribute to the recovery of this subspecies. Although we are not designating all known occurrences of the San Bernardino kangaroo rat, we believe our criteria are sufficient, and therefore the designation is adequate, to ensure the conservation of this subspecies throughout its extant range based on the best available information at this time. We recognize that the designation of critical habitat may not include all of the habitat that may eventually be determined to be necessary for the recovery of the subspecies, and critical habitat designations do not signal that habitat outside of the designation is unimportant or may not contribute to recovery. Areas outside the final critical habitat designations will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act, and regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act.

Comment 9:

One commenter cited statements in the proposed rule that several areas were not included in the proposed designation because they “contain habitat that has been degraded” and requested justification as to why no regulatory mechanisms were triggered in the past to prevent habitat destruction in these areas since they were included in the 2002 designation.

Our Response:

As explained above in response to comment 2, the reduction in total area from what was designated in 2002 is primarily the result of: (1) Exclusions of habitat under section 4(b)(2) of the Act; (2) revision of the primary constituent elements; (3) revision of our criteria used to identify critical habitat; (4) and removal of lands within the geographical area occupied by the subspecies at the time it was listed that do not contain the physical or biological features as identified by the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the subspecies.

We have significant additional occurrence data and knowledge about specific habitat requirements of this species that was not known when we first designated critical habitat for the San Bernardino kangaroo rat in 2002. We utilized this data to revise the primary constituent elements and criteria used to identify critical habitat consistent with the statutory obligations of the Act and applicable case law (see the “Summary of Changes From the 2002 Critical Habitat Designation” section of this final rule for more information).

As pointed out by the commenter, there are areas of currently designated critical habitat that were removed in part due to habitat degradation and/or the determination that the areas do not contain the physical and biological features essential to the conservation of this subspecies. Some of these areas likely did not support the physical and biological features essential to the

conservation of the subspecies in 2002, when critical habitat was first designated (see “Summary of Changes” section). We have revised the PCEs since the 2002 designation based on new information and a better understanding of the statutory obligations of the Act. Furthermore, we diligently reviewed all areas considered for designation to demonstrate existence of the physical and biological features essential to the conservation of this subspecies within the geographical area occupied by this subspecies at listing.

Other areas have become degraded since critical habitat was designated. Critical habitat receives protection under section 7 of the Act through the prohibition against Federal agencies carrying out, funding, or authorizing the destruction or adverse modification of critical habitat. Section 7(a)(2) of the Act requires consultation on Federal actions that may affect critical habitat. However, there are a number of reasons why designated critical habitat can become degraded without triggering consultation.

The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Generally, habitat may degrade through time due to lack of management. A critical habitat designation does not force a landowner to manage their land to the benefit of a species. Furthermore, proposed projects or actions occurring in critical habitat that do not involve a Federal nexus are not subject to the section 7 prohibition against destruction or adverse modification of critical habitat and, therefore, no consultation is required for those projects to occur. Where the consultation requirements of section 7(a)(2) do apply, an analysis would only result in a finding of destruction or adverse modification if the project was expected to impact the capability of the critical habitat unit as a whole to perform its conservation function for the subspecies. Projects may adversely impact the physical and biological features essential to the conservation of a species within a critical habitat unit without impairing the unit's conservation role and function for the species. For example, the Service completed formal section 7 consultation on the Lytle Creek North Master Planned Community in existing critical habitat Unit 2. In our Biological Opinion we determined that the proposed action was not likely to jeopardize the continued existence of the subspecies nor result in the destruction or adverse modification of critical habitat (Service 2003a, p. 45, FWS-SB-1640.11), even though the project resulted in the loss of some designated critical habitat. We have not consulted on any projects within designated critical habitat where we determined that project implementation would destroy or otherwise adversely modify critical habitat such that the designated unit could no longer properly function and support the essential features for which it was designated. Finally, in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

Comment 10:

Two commenters stated that critical habitat should include linkage corridors and address connectivity issues relevant to the San Bernardino kangaroo rat. One commenter stated that arguments in the proposed rule to remove specific areas within the Santa Ana River watershed show a limited understanding of the habitat needs and the corridor connectivity issues that are relevant to this subspecies. One commenter further stated that the critical habitat delineated in the proposed revision to critical habitat shows a limited, single-species perspective. Several commenters stated that continuity between populations must be maintained.

One commenter stated that, through the proposed rule, fragments of critical habitat were created (i.e., Plunge Creek) and populations removed because they are believed to be isolated from perhaps larger populations (i.e., Etiwanda Fan, Cable Creek, and Bautista Creek) and that the goal for the designation should be to form linkages between occupied areas, which reduce genetic isolations, allow populations to re-colonize following local extinctions from stochastic events, and migrate in response to environmental change.

Our Response:

We agree that linkages are important to reduce genetic isolation and to allow for re-colonization and migration. Included in the criteria for defining the physical and biological features within occupied habitat for inclusion in the critical habitat designation are areas adjacent to and between San Bernardino kangaroo rat occurrence points that maintain connectivity of occurrences in one continuous patch of suitable habitat. We maintained connectivity of core populations within each of the proposed critical habitat units. However, in some areas there are geographical barriers to connectivity, such as manmade structures or large expanses of unsuitable habitat. These areas are not likely to support actual movement of San Bernardino kangaroo rats and do not contain the physical and biological features essential to the conservation of this subspecies, and therefore do not meet the definition of critical habitat and are not included in this final designation. As announced in the NOA for the draft economic analysis (73 FR 20581), we are including in the final revised critical habitat designation areas in and around Plunge and Mill Creeks to increase connectivity in Unit 1. Furthermore, we are including portions of Cable Creek (Unit 4) and Bautista Creek (Unit 5) in the designation of critical habitat as these areas may be important for the long-term conservation of this subspecies. See the “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” and the “Unit Descriptions” sections of this final rule for more information.

Designation of these areas within the Santa Ana River, Lytle/Cajon Creeks, and San Jacinto River watersheds is based on data and information received during the comment periods from these and other commenters and creates additional connectivity within the designation. We responded to all data and scientific information received during the comment periods and did not receive any other data indicating that additional areas within the Santa Ana River watershed, or elsewhere within the range of the San Bernardino kangaroo rat, meet the definition of critical habitat. We agree with the commenter that this final designation is limited in perspective to a single subspecies, the San Bernardino kangaroo rat. It is outside the scope of this final rule to address conservation need of other species within a single species critical habitat designation.

Comment 11:

One commenter asserted that the Service's statement in the 2007 proposed rule that channelized areas in the San Jacinto River prevent connectivity with core populations is unjustified, and that we provided no evidence indicating that the PCEs are not present or that these areas do not provide connectivity. Several commenters stated that channelized creeks (such as portions of Cable and Bautista creeks) should contain a natural bottom with islands of habitat that the subspecies could use as corridor habitat, utilizing patches of habitat as “stepping stones” and temporary refugia as they disperse.

Our Response:

Channelized areas are not included in this designation because they do not provide suitable habitat to sustain San Bernardino kangaroo rat populations beyond the next storm event, which could flood the channels

with high-velocity flows from bank to bank, eliminating populations within the channelized areas. Furthermore, we have no evidence to suggest that this subspecies utilizes channelized areas (some of which are lined with concrete) to successfully migrate between populations. We agree that channels with natural bottoms and islands of habitat could provide better opportunities for dispersal between populations. However, these “stepping stones” are not in place at this time, and we are not including these channelized areas in the designation of critical habitat as they do not currently meet the definition of critical habitat.

Comment 12:

One commenter stated that construction technologies should be explored that would create or sustain San Bernardino kangaroo rat habitat. The commenter also stated that a hydrologic analysis of the existing levees, detention basins, and other flood control structures should be completed to determine if these structures are still required. Another commenter stated that areas along the Santa Ana River are important, as re-engineering of flood control features can create appropriate conditions for the San Bernardino kangaroo rat.

Our Response:

We agree that flood control and water conservation structures contributed to the loss of suitable habitat for the San Bernardino kangaroo rat by altering hydrological processes, and we agree that sustaining areas where natural hydrological processes remain is important to the conservation of this subspecies. Although studies of construction technologies and investigations of the necessity for existing hydrological structures could benefit the conservation of this subspecies in the future, we do not currently have this information and we were not able to include an analysis of such information in making our designation of critical habitat. When delineating critical habitat for the San Bernardino kangaroo rat, we used the best available scientific information to determine those areas that meet the definition of critical habitat.

Comment 13:

One commenter stated that the proposed rule was flawed because the Service failed to include unoccupied areas for recovery. The commenter stated that the Service ignored the recovery goal of critical habitat by failing to include historical habitat that may not be currently occupied, but could provide an opportunity for the subspecies' recovery. The commenter further stated that the Service must consider and evaluate the recovery benefits of critical habitat designation in order to promulgate a legally valid critical habitat rule. One commenter stated that areas outside the geographical area occupied by the subspecies included in the 2002 designation are still essential to the conservation of the subspecies and should have been included in the 2007 proposed rule.

Our Response:

The Service may designate as critical habitat areas outside of the geographical area occupied by a species at the time it was listed when we can demonstrate that those areas are essential for the conservation of the species (section 3(5)(A)(ii) of the Act). Likewise, we can designate as critical habitat areas “outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species.” (50 CFR 424.12(e)).

Conservation (i.e., recovery) is achieved when a five factor analysis performed pursuant to section 4(a)(1) if the Act indicates that current and future threats have been minimized to an extent that the species is no longer threatened with extinction in the foreseeable future. Recovery is a dynamic process requiring adaptive management of threats and there are many paths to accomplishing recovery of a species. We recognize that it is unlikely that threats to this subspecies will be removed from all areas identified in this rule and that recovery efforts will occur outside the boundaries of this final designation; however, we believe that that conservation of this subspecies would be achieved if threats to this subspecies, as described in the “Special Management Considerations or Protection” section of this rule, were reduced or removed due to management and protection of those areas. Therefore, consistent with the statutory obligations of the Act and our implementing regulations we are not designating any unoccupied areas or areas outside the geographical area occupied by this subspecies at the time it was listed.

Critical habitat designations do not signal that habitat outside the designation is unimportant or may not contribute to a species' recovery. Areas outside the final critical habitat designation will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act, and regulatory protections afforded by the section 7(a)(2) jeopardy standard and the prohibitions of section 9 of the Act. Critical habitat designations based on the best available information at the time of designation will not control the direction and substance of future recovery plans, habitat conservation plans, or other species conservation planning efforts if information available at the time of those planning efforts calls for a different outcome. We recognize that the threats faced by this subspecies may change in the future; however, we base our critical habitat designations on the information available at the time of the designation and do not speculate as to what areas may be found essential if better information becomes available or what areas may become essential over time. The commenter did not include any specific data supporting their statement that unoccupied areas are essential for the recovery of the San Bernardino kangaroo rat and we are not aware of any studies or data that we did not consider. Should additional data become available, we may revise this critical habitat designation, subject to available funding and other conservation priorities.

Contrary to the commenter's assertion, we note that all areas designated as critical habitat in 2002 were within the geographical area occupied by the species at the time of listing. For a detailed discussion regarding areas referenced by the commenter that were designated in 2002 but not included in this final revised designation, please see the “Summary of Changes From the 2002 Critical Habitat Designation” section of this final rule.

Comment 14:

One commenter stated that before the Service reduces critical habitat of a species that is already in peril, the Service should scientifically analyze if this reduction further jeopardizes the species' recovery and that a recovery plan, including a population viability analysis, should be completed for the San Bernardino kangaroo rat.

Our Response:

We agree that a recovery plan and a population viability analysis could provide useful information when considering a critical habitat designation; however, at this time, neither a recovery plan nor a population viability analysis was completed for the San Bernardino kangaroo rat. Given the timeframe in which we had to prepare this critical habitat rule, we did not have time to prepare a recovery plan or a population viability analysis for this subspecies; and the Act does not require the preparation of such analyses before critical habitat is designated. When delineating critical habitat for the San Bernardino kangaroo rat, we used the best available scientific information to determine those areas that meet the definition of critical habitat.

Comments Related to the Primary Constituent Elements

Comment 15:

One commenter stated that hydrological processes are an essential part of the alluvial fan sage scrub plant community and San Bernardino kangaroo rat habitat and, therefore, should be included as a PCE. The commenter further stated areas that provide necessary hydrology to down-stream alluvial fans and the processes that the San Bernardino kangaroo rat relies upon for habitat renewal and maintenance should have been included in the proposed designation.

Our Response:

We consider PCEs to be tangible, recognizable, or measurable features in the landscape, where possible, and not the processes that result in the feature. Biologists and non-biologists should be able to clearly determine the presence of PCEs in the field. A process such as hydrological regime should not be a PCE, but the resulting habitat condition (i.e., the end result of the process) is an appropriate PCE. In the case of the San Bernardino kangaroo rat, although hydrological processes maintain the alluvial sage scrub with proper soil and vegetative characteristics for this subspecies, habitat features described by the PCEs are the actual habitat parameters relied upon by the San Bernardino kangaroo rat, not the natural process that contributes to the long-term maintenance of the habitat (see the “Primary Constituent Elements” section for a detailed discussion).

Comment 16:

One commenter stated that the proposed rule fails to describe the PCEs based on the best available science. This commenter stated that according to Braden and McKernan (2000), San Bernardino kangaroo rats were documented in a variety of plant communities, including coastal sage scrub, chaparral, in highly disturbed areas previously not thought to be suitable habitat for this subspecies (i.e., dirt parking lots, dirt roads), and questioned why these plant communities and disturbed areas were not included in the proposed designation.

Our Response:

The PCEs for the San Bernardino kangaroo rat described in the proposed rule and this final rule are based on the best available science (see Comment 5 and response above). We are aware of the Braden and McKernan (2000) study, which showed San Bernardino kangaroo rats occupying areas that were previously thought to be unsuitable habitat, and we have used that information in revising the PCEs and delineating critical habitat for this subspecies in this final rule. Please refer to the “Primary Constituent Elements” section of this final rule for more information on this topic.

Comment 17:

One commenter disagreed with PCEs 2 and 3, stating that areas with up to 50 percent chamise chaparral cover are unsuitable for the San Bernardino kangaroo rat and that marginal upland areas occupied at low densities that are in proximity to occupied habitat do not serve to perpetuate the subspecies.

Our Response:

We disagree with the commenters' assertion that up to 50 percent chamise chaparral cover is unsuitable for the San Bernardino kangaroo rat. Research shows that alluvial fan habitat with mature, relatively dense vegetation, including chaparral, is at least periodically occupied by the San Bernardino kangaroo rat (Braden and McKernan 2000, p. 16) (see Comment 16 and response above and the “Primary Constituent Elements” section of this final rule). Also, we believe upland areas contain features essential to the conservation of the subspecies (see the “Primary Constituent Elements” section of this final rule for a detailed discussion of the importance of upland habitat).

Comments Related to Subspecies Biological Information

Comment 18:

One commenter suggested our statement that inclusion of “sufficient areas to provide the space needed to maintain the home range for this subspecies” is naïve and misleading. This commenter stated they have studied home range dynamics and space utilization of the Merriam's kangaroo rat (

Dipodomys merriami

), of which the San Bernardino kangaroo rat is a subspecies, and the commenter noted that this species diverges from the normally accepted concept of home range as a single area where an individual remains for life. The commenter further stated that the size, shape, and location of a home range will change dramatically through time depending on a number of factors.

Our Response:

We agree with the commenter about the dynamic and changing nature of the San Bernardino kangaroo rat's home range. We did not suggest in the proposed rule that this subspecies has a defined, static home range where it remains during its entire lifetime. Furthermore, we considered the dynamic home range of this subspecies when delineating critical habitat. In order to clarify concerns voiced by the commenter, we changed the quoted text which appears in the “Primary Constituent Elements” section of this final rule to read “sufficient areas to provide the space needed to maintain the home range dynamics of this subspecies.”

Comments Related to Proposed Exclusions Under Section 4(b)(2) of the Act

Comment 19:

One commenter stated that many of the proposed exclusions of critical habitat are not consistent with the stated goals of the Service in providing protection and recovery for the San Bernardino kangaroo rat, while another commenter stated that areas proposed for exclusion by the Service should remain in critical habitat. Another commenter stated that while they support conservation efforts for the San Bernardino kangaroo rat through management plans and acquisition of funding to implement these plans, these efforts are not a substitute for the designation of critical habitat. This commenter stated that the rationale for proposing the following areas for exclusion under section 4(b)(2) of the Act is unjustified for the following reasons:

(1) WSPA Management Plan—(a) this plan does not mention the San Bernardino kangaroo rat as a target species for conservation nor does it provide species-specific monitoring; (b) because the San Bernardino kangaroo rat is sympatric with the woolly star, declines in the number of woolly star plants documented in this area over the past seven seasons may indicate a potential decline in San Bernardino kangaroo rat habitat as well; (c) relying on the draft WSPA Multiple Species Habitat Management Plan (MSHMP) to exclude areas from final critical habitat is not justified since the specific goals of the draft MSHMP are currently non-binding;

(2) Former Norton Air Force Base CMP—while conservation easements are identified as the method to assure San Bernardino kangaroo rat conservation in perpetuity, to date no conservation easements are recorded for these areas;

(3) Western Riverside County MSHCP—the purpose of the MSHCP to streamline Federal and State regulatory mechanisms and allow for take of endangered species is very different from the purpose of critical habitat to recover species; and

(4) The designation of Norton Air Force Base, Cajon Creek Habitat Conservation Management Area, and Eastern Municipal Water District Conservation Lands as critical habitat causes no additional regulatory burdens to the agencies that now manage them and will actually aid in bringing much-needed resources to the management of these areas.

Our Response:

We determined that the benefits of exclusion outweigh the benefits of inclusion for lands covered by the WSPA Management Plans, the Former Norton Air Force Base CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP, and therefore excluded these lands from critical habitat under 4(b)(2) of the Act. Please see the “Exclusions Under Section 4(b)(2) of the Act” section of this final rule for a detailed discussion of the management plans and the benefits each plan provides to the San Bernardino kangaroo rat.

Where a Federal nexus exists, lands designated as critical habitat are protected from destruction or adverse modification under section 7(a)(2) of the Act. However, the conservation and management plans mentioned above incorporate on-going management and protection for the San Bernardino kangaroo rat that will benefit the long-term conservation of the subspecies. This type of long-term management would not necessarily result from a section 7(a)(2) consultation on an area where critical habitat is designated. Additionally, the protection and management afforded to San Bernardino kangaroo rat habitat under these plans extend to private lands that may otherwise lack a Federal nexus triggering consultation under section 7(a)(2) of the Act. Moreover, these plans provide for proactive monitoring and management of conserved lands, which is important to the survival and recovery of the San Bernardino kangaroo rat.

Such conservation needs are typically not addressed through the application of the statutory prohibition on destruction or adverse modification of critical habitat. Section 4(b)(2) of the Act directs the Secretary to consider the economic impact, national security impact, and any other relevant impact of specifying any particular area as critical habitat. An area may be excluded from critical habitat if it is determined that the benefits of exclusion outweigh the benefits of specifying a particular area as critical habitat, unless the failure to designate an area as critical habitat will result in the extinction of the species. As discussed in detail in the “Exclusions Under Section 4(b)(2) of the Act” section, we believe the exclusions in this final rule are legally supported under section 4(b)(2) of the Act and scientifically justified. The benefits of designating critical habitat in areas covered by these plans are minimal, and implementation of these plans will result in an increased level of protection and long-term conservation for the San Bernardino kangaroo rat. Imposing an additional regulatory review as a result of designating critical habitat may undermine these conservation efforts and partnerships.

With regard to the comments above that are specific to the WSPA Plan; first, we acknowledge that the San Bernardino kangaroo rat is not directly addressed by the 1993 Management Plan for the Santa Ana River Woolly-Star implemented on the WSPA. However, the management tasks benefit the San Bernardino kangaroo rat as well (see “Woolly-Star Preserve Area (WSPA) Management Plans” discussion below). Second, we have no records to indicate that a recent decline in woolly star plants is directly related to a decline in San Bernardino kangaroo rat habitat. Third, we are not basing our exclusion of WSPA lands solely on the recent draft WSPA MSHCP. We are excluding those lands based on partnerships with the local sponsors in preparation and implementation of the 1993 WSPA management plan and the ongoing update to that plan (i.e., the WSPA MSHCP) which will address the San Bernardino kangaroo rat (see the “Woolly-Star Preserve Area (WSPA) Management Plans” exclusion discussion below).

With regard to the conservation easements on Former Norton Air Force Base (CMP) lands, the San Bernardino International Airport Authority (SBIA Authority) is currently pursuing conservation easements to assure San Bernardino kangaroo rat conservation in perpetuity on these lands.

Regarding the remaining points raised by the commenter above specific to the Western Riverside County MSHCP, the Former Norton Air Force Base CMP, and the Cajon Creek HCMA HEMP, please see the “Benefits of Designating Critical Habitat,” “Conservation Partnerships on Non-Federal Lands,” “Benefits of Excluding Lands With HCPs or Other Approved Management Plans,” and the plan-specific exclusions sections of this final rule for a full discussion of our rationale for excluding these lands under section 4(b)(2) of the Act. Finally, we are not excluding the Eastern Municipal Water District conservation lands from critical habitat for the San Bernardino kangaroo rat.

Comment 20:

Two commenters stated that the proposed revision would violate the Implementing Agreement (IA) of the Western Riverside County MSHCP because it does not exclude 506 ac (205 ha) of water district land within the MSHCP boundaries. They further stated that the MSCHP has already taken the 506 ac (205 ha) of water district lands into account—and state that in the IA, the Service agreed that “in the event that a critical habitat determination is made for any Covered Species Adequately Conserved * * * lands within the boundaries of the MSHCP will not be designated as critical habitat.” They further stated that the MSHCP provides full protection for the San Bernardino kangaroo rat even without consideration of the 506 ac (205 ha) owned by the two water districts (Eastern Municipal Water District and Lake Hemet Municipal Water District). Additionally, the commenters stated that the water districts could qualify as a “Participating Special Entity” under the MSHCP and the significance of this is that if either water district wishes to implement a project for which take authorization is required, they must comply with the MSHCP and its IA. Thus, if take authorization were ever required for their properties, it would be covered under the MSHCP.

Our Response:

In the proposed rule to revise critical habitat, we provided a description of the Western Riverside County MSHCP and an analysis of the proposed exclusion from critical habitat of lands covered by this plan to allow the public to comment and provide additional information that should be considered in our final exclusion analysis (see “Exclusions under Section 4(b)(2) of the Act” section below for a detailed discussion). We appreciate any conservation work that Eastern Municipal Water District and Lake Hemet Municipal Water District may be doing; however, the water districts are not signatories to or permittees under the MSHCP. Because the water districts are not signatories of the MSHCP, they may elect to not be a “Participating Special Entity”, and instead choose an alternative approach outside of the MSHCP to conduct their activities. By taking an alternative approach, a water district would not be required to comply with the MSHCP and associated IA. Therefore, the benefits of including lands owned by the Eastern Municipal Water District and Lake Hemet Municipal Water District as critical habitat are higher than the benefits of including other lands within the overall MSHCP boundaries subject to the MSHCP, and we determined under section 4(b)(2) of the Act that the water districts' lands should not be excluded from this final designation.

Comment 21:

One commenter stated that the area covered by the Cajon Creek HCMA HEMP should remain in the critical habitat designation to remind the conservation area managers of their responsibility to the San Bernardino kangaroo rat and other threatened and endangered species.

Our Response:

The Cajon Creek HCMA HEMP, managed by Vulcan Materials Company (formerly CalMat Company), Western Division, was created to offset sand and gravel mining proposed within and adjacent to Cajon Creek. In making the Cajon Creek HCMA HEMP exclusion, we evaluated the benefits of designating non-Federal lands that may not have a Federal nexus for consultation while considering if our existing partnership has, or will, result in greater conservation benefits to the San Bernardino kangaroo rat and its habitat than would likely result from consultation on a designation. We balanced the benefits of inclusion against the benefits of exclusion (i.e., the benefits of preserving partnerships and encouraging development of additional HCPs and other conservation plans in the future). We determined that the Cajon Creek HCMA HEMP provides equivalent or greater conservation benefit to the San Bernardino kangaroo rat than would likely result from including this area in the designation, that designation could impact our current and future partnerships, and that exclusion of the lands covered by this plan will not result in the extinction of the subspecies (see “Exclusions under Section 4(b)(2) of the Act” section below for a detailed discussion). Vulcan Materials is responsible for managing these alluvial fan scrub habitat areas in perpetuity for 24 species, including the San Bernardino kangaroo rat, regardless of whether or not critical habitat for the San Bernardino kangaroo rat exists on these lands. Vulcan Materials Company is aware of the conservation value of their land and has maintained a strong partnership with the Service by submitting annual reports and ensuring that management and monitoring of their conservation lands adheres to the requirements of the Cajon Creek HCMA HEMP.

Comment 22:

One commenter stated that they oppose the Service's policy of relying on section 4(b)(2) to exclude habitat that may be covered by management plans, conservation easements, and/or endowments under the logic that these areas do not need “special management” pursuant to section 3(5)(A). The commenter referred to this approach as “belt and suspenders” and reminded the Service that the district court of Arizona struck down this approach in

Center for Biological Diversity, et al.

v.

Norton

(D. Ariz. 2003). Furthermore, the commenter stated that our exclusion analyses are flawed because a determination that excluding an area will not result in the extinction of a species does not consider the recovery standards and benefits associated with designation. The commenter believes that all San Bernardino kangaroo rat habitat needs special management because of the variety of impacts to its habitat (e.g., changes in hydrologic regimes, direct impacts from development, off-road vehicle impacts). The commenter stated that current or future management actions provided for the San Bernardino kangaroo rat or its habitat by management plans and/or conservation plans are not a reasonable justification for excluding these areas from the protection that a designation of critical habitat provides. The commenter further stated that the Act defines critical habitat as an area that may need special management, and therefore areas that are receiving management under a management plan and/or conservation plan meet the definition of critical habitat and should not be excluded if the necessary management is being provided under a plan. The commenter concluded that the Service should include in the final critical habitat designation all historical and contemporary areas where the San Bernardino kangaroo rat was known (unless it has been developed), because these areas meet the definition of critical habitat by nature of their need for special management.

Our Response:

The commenter appears to be confusing the purposes of sections 3(5)(A) and 4(b)(2) of the Act. Section 3(5)(A) provides the requirements for identifying critical habitat, while section 4(b)(2) directs the Secretary to consider the impacts of designating such areas as critical habitat and provides the Secretary with discretion to exclude particular areas if the benefits of exclusion outweigh the benefits of inclusion. In this rule, we have not stated that areas do not meet the definition of critical habitat under 3(5)(A) because they are being adequately managed. However, we have considered the management of particular areas that do meet the definition of critical habitat in our analyses under section 4(b)(2).

We explain our criteria for designating critical habitat in response to comments 6, 8, and 13 above as well as the “Criteria Used To Designate Critical Habitat” section below. The responses to comments 6 and 8 address why this designation does not contain all known occurrences of this subspecies (i.e., contemporary areas) and the response to comment 13 addresses why we are not including any unoccupied habitat (i.e., historical areas) in this final rule. We believe our criteria captures all areas that meet the definition of critical habitat under section 3(5)(A) of the Act. We will focus our response to this comment on our exclusion of lands under section 4(b)(2) of the Act that we determined met the definition of critical habitat under section 3(5)(A) of the Act.

Section 4(b)(2) of the Act states that any designations of and/or revisions to critical habitat will be made on the basis of the best scientific data available after taking into consideration the economic impact, the impact on national security, and any other relevant impact of specifying any particular area as critical habitat. The Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned. Therefore, consistent with the Act, we must consider the relevant impacts of designating areas that meet the definition of critical habitat using the best available scientific data available prior to finalizing a critical habitat designation.

After determining the areas that meet the definition of critical habitat under section 3(5)(A) of the Act as described above, we took into consideration the economic impact, the impact on national security, and other relevant impacts of specifying any particular area as critical habitat for the San Bernardino kangaroo rat. In this final designation, we recognize that designating critical habitat in areas where we have partnerships with land owners that have led to conservation and/or management of listed species on non-Federal lands has a relevant perceived impact to landowners and a relevant impact to future partnerships and conservation efforts on non-Federal lands. These impacts are described in detail in the “Conservation Partnerships on Non-Federal Lands” section below. Based on these relevant impacts, we evaluated the benefits of designating areas as critical habitat against the benefits of excluding these areas from the critical habitat designation. Please see the “Application of Section 4(b)(2) of the Act” and “Exclusions under Section 4(b)(2) of the Act” sections of this final rule for a detailed discussion of the benefits of excluding lands covered by management plans versus the benefits of including these areas in a critical habitat designation. Upon weighing the specific benefits of inclusion against specific benefits of exclusion, we determined that the benefits of excluding a portion of units 1, 2, 3, and 5 outweigh the

benefits of including these areas in the final critical habitat designation. When weighing the benefits of including an area in the critical habitat designation, we fully consider the regulatory benefits provided to the species under section 7(a)(2) of the Act based on the statutory difference between a jeopardy analysis and an adverse modification analysis, and our balancing analyses reflects our consideration of the recovery standards and benefits associated with designation. Further we determined that the exclusion of these areas will not result in extinction of the San Bernardino kangaroo rat. Contrary to the commenter's belief, this determination to exclude areas where the benefits of exclusion outweigh the benefits of inclusion and where we determined that the exclusion will not result in the extinction of the species is consistent with the statutory obligations of the Act. Therefore, we believe these exclusions are in full compliance with the Act.

Comment 23:

One commenter stated that the proposed critical habitat rule did not unequivocally demonstrate that the benefits of excluding areas covered by management plans from critical habitat outweigh the benefits of including them.

Our Response:

As stated above, the Secretary may exclude any area from critical habitat if he determines that the benefits of exclusion outweigh the benefits of specifying such area as part of the critical habitat, unless he determines that the failure to designate such area as critical habitat will result in the extinction of the species concerned. The benefits of excluding an area from a critical habitat designation (e.g., preserving partnerships and fostering new partnerships) are not directly comparable to the benefits of including that same area within a designation (e.g., regulatory consultation requirement), and therefore one cannot unequivocally compare the two in an analysis; rather the Secretary fully considers the impacts of designation and weighs all the factors to determine if the benefits of exclusion outweigh the benefits of inclusion. For the reasons detailed in the “Exclusions under Section 4(b)(2) of the Act” section of this final rule, we determined that the benefits of exclusion outweigh the benefits of inclusion for lands covered by the WSPA Management Plans, the Former Norton Air Force Base CMP, the Western Riverside County MSHCP, and the Cajon Creek HCMA HEMP, and determined that exclusion of these lands will not result in the extinction of the San Bernardino kangaroo rat. Therefore, we have excluded these lands from the critical habitat designation under section 4(b)(2) of the Act.

Comments on Lands Designated as Critical Habitat

Comment 24:

Several commenters stated there are areas within the proposed critical habitat that should not be included in the final designation because they do not contain the PCEs, are not occupied by the subspecies, or otherwise do not meet the definition of critical habitat. One commenter objected to the inclusion of three parcels of land along City Creek in proposed Unit 1 that are used by San Bernardino County Flood Control for maintenance activities following storm events, and stated that these parcels are being evaluated by the City of Highland as part of its land use planning effort for the future development of the Golden Triangle area. Two commenters objected to the inclusion of large areas of property (owned by Lytle Development Company) in the Lytle Creek area in proposed critical habitat Unit 2. The objection is based on negative survey data over recent years and judgment of a biological consultant who believes the areas in question are not suitable habitat for this subspecies, are not occupied, or are not essential to the conservation of the subspecies.

Our Response:

Where site-specific information was submitted to us with a rationale as to why an area should not be designated as critical habitat, we evaluated that information in accordance with the definition of critical habitat pursuant to section 3(5)(A) of the Act. Following our evaluation of the provided information, we made a determination that modifications to the critical habitat boundaries were not warranted. Data used in the preparation of our final revised designation indicate that the area of Lytle Creek in question is occupied by the San Bernardino kangaroo rat and contains some of the last remaining suitable upland habitat (PCEs 2 and 3) in Unit 2 that contains the features essential to the conservation of the subspecies, and the areas near City Creek provide suitable alluvial habitat in Unit 1 and connectivity with the core population in the Sana Ana River wash. The area in question meets our criteria used to identify critical habitat (see “Criteria Used To Identify Critical Habitat” section below). We believe that based on the behavior and ecology of the San Bernardino kangaroo rat as extrapolated from the best available scientific data, the animal may not be detectable at all times across all areas designated as critical habitat, and, based on our analysis, we believe we properly defined occupancy as it relates to the behavior and ecology of this subspecies.

Comment 25:

One commenter stated the Service failed to make the requisite finding that land within two areas of Lytle Creek, which they claim should be excluded, may require special management considerations or protection. The commenter claims that these lands are not candidates for special management considerations or protection because no reasonable amount of management efforts could make these lands suitable for the San Bernardino kangaroo rat or connect them with the Lytle Creek wash population. The commenter further stated that one of these areas is outside the geographical area occupied by the San Bernardino kangaroo rat and the Service has not made, and cannot make, the requisite findings to include the area within critical habitat under 16 U.S.C. section 1532(5)(A)(ii).

Our Response:

We determined through survey data, vegetation data, analysis of aerial imagery, and site visits with Service subspecies experts, that these two areas of Lytle Creek are within the geographical area occupied at the time of listing, are currently occupied, and contain the features essential to the conservation of the San Bernardino kangaroo rat. We acknowledge that these upland areas are likely occupied at a lower density than areas within the lowland wash and contain somewhat dense vegetation; however, these areas contain some of the last remaining upland habitat within Unit 2 (PCEs 2 and 3) and contain the features essential to the conservation of the subspecies as described in the “Primary Constituent Elements” section of this final rule. As discussed in the “Unit Descriptions” section of this final rule, the physical and biological features within the Lytle/Cajon Creek wash may require special management considerations or protection to minimize impacts associated with flood control operations, water conservation projects, sand and gravel mining, and urban development. Furthermore, Braden and McKernan (2000, p. 16) demonstrated that areas with late phases of floodplain vegetation, such as mature alluvial fan sage scrub and associated coastal sage scrub and chaparral, including some areas of moderate to dense vegetation, are at least periodically occupied by San Bernardino kangaroo rats. Additionally, we believe the earthen levees separating some of these areas from the active wash do not isolate individuals or prohibit movements in these areas from the core population within Lytle Creek wash. Therefore, we disagree with the

commenter's claim that no reasonable amount of management efforts could make this land suitable for the subspecies or connect San Bernardino kangaroo rats in these areas with the Lytle Creek wash population; this area is occupied, connected, and the essential features may require special management considerations or protection.

Comment 26:

Two commenters stated that social, economic, and policy considerations in the context of the Act's section 4(b)(2) balancing test support excluding a larger area from the designation in two areas within the Lytle Creek wash. The commenters suggested that there are various benefits to excluding Lytle Development Company (LDC) lands from the critical habitat designation. The commenters stated that removing critical habitat from these areas would allow LDC to develop its proposed Lytle Creek Ranch project. The commenters further stated that LDC would then be able, through financing generated by that project, to dedicate permanent conservation habitat for the San Bernardino kangaroo rat.

Our Response:

Lands owned by LDC contain both upland and lowland alluvial scrub habitat that contains features essential to the conservation of this subspecies and we appreciate LDC's willingness to contribute to the long-term conservation of the San Bernardino kangaroo rat. However, when performing the required analysis under section 4(b)(2) of the Act, the existence of a management plan (i.e., HCP or other type) that considers enhancement or recovery of listed species as its management standard is relevant to our weighing of the benefits of inclusion versus the benefits of excluding a particular area in a critical habitat designation. In considering the benefits of including lands in a designation that are covered by a current HCP or other management plan, we evaluate a number of factors to help us determine if the plan provides equivalent or greater conservation benefit than would likely result from consultation on a designation: (1) Whether the plan is complete and provides protection from destruction or adverse modification; (2) whether there is a reasonable expectation that the conservation management strategies and actions will be implemented for the foreseeable future, based on past practices, written guidance, or regulations; and (3) whether the plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. Because habitat was not set aside and a management plan not completed that is consistent with the above factors, we determined that the exclusion of these areas under section 4(b)(2) of the Act based in part on potential future conservation would be inappropriate. Further, we do not believe the relative economic impact outweighed the conservation benefits of including these lands in the critical habitat designation.

Comment 27:

One commenter stated that the proposed rule somewhat mischaracterizes the existing LDC restoration and conservation program. The commenter stated that the program is managing all 217 ac (88 ha) to benefit the San Bernardino kangaroo rat (not just 40 ac (16 ha)) within the protected conservation area.

Our Response:

We acknowledge the conservation efforts of LDC, and in response to this comment we revised and supplemented the discussion of the LDC conservation areas in this final rule. Please see the “Unit Descriptions” section below for more information.

Comment 28:

One commenter stated that additional losses of habitat for the San Bernardino kangaroo rat are slated to occur and gave the example that the City of Highland is proceeding with a number of projects within currently designated and proposed critical habitat. The commenter stated that these further reductions in the animal's habitat underscore the need to identify all extant areas where the subspecies exists and to include all occupied habitat in the final revised critical habitat designation. A second commenter stated that areas proposed by Orange County Flood Control District and the City of Highland for development of 3,000 homes and a highway through Mill Creek Wash lie within the proposed critical habitat boundary. A third commenter stated that the same 3,000-home project would be placed in an area that is one of the only places in Unit 1 (Mill Creek Wash) that still retains fluvial input.

Our Response:

We are not currently in consultation on the proposed projects mentioned in the comment above. Any project involving a Federal nexus which may affect a federally listed species or designated critical habitat would require consultation with the Service to ensure such actions would not jeopardize the continued existence of the species or destroy or adversely modify critical habitat (see the “Critical Habitat” section of this final rule for a detailed discussion). The designation of critical habitat does not affect projects that do not have a Federal nexus; however, if a project may result in take of a federally listed species, then the project proponent would need to obtain an incidental take permit from the Service to be in compliance with the Act. Mill Creek is important to the recovery of the subspecies as it is the only large stretch of contiguous, occupied habitat for the San Bernardino kangaroo rat within Unit 1 that is not fragmented by development (e.g., roads, aggregate mining pits). Furthermore, Mill Creek is the only remaining source of alluvial sediments within Unit 1 that has not been significantly altered by flood control structures, water diversions, or other activities. Although we did not include the majority of Mill Creek in our June 19, 2007, proposed revision to critical habitat, we have since re-evaluated Mill Creek as described in the April 16, 2008, NOA in light of several substantive public comments recommending the inclusion of Mill Creek as critical habitat. We are including approximately 388 ac (157 ha) of Mill Creek in the final revised designation (see the “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” section of this final rule for more information).

As discussed in our response to comment 6 above, under section 3(5)(C) of the Act, critical habitat shall not include the entire geographical area which can be occupied by the species unless otherwise determined by the Secretary. In developing the proposed rule to revise critical habitat, we considered the geographical area occupied by the subspecies at the time of listing, and within that broad geographical area, identified those areas that, based on the best available scientific and commercial data, contain the physical and biological features essential to the subspecies' conservation. We recognize that our designation of critical habitat for the San Bernardino kangaroo rat does not encompass all known occurrences of this subspecies as noted by the commenter. Although we are not designating all known occurrences of the San Bernardino kangaroo rat, we believe that our final designation is adequate to ensure the conservation of this subspecies throughout its extant range based on the best available information at this time.

Comment 29:

One commenter stated that any revisions to designated critical habitat as proposed in the June 19, 2007, proposed rule (72 FR 33808) are premature because they fail to consider several ongoing Federal processes that directly affect the San Bernardino kangaroo rat. The commenter specifically identified the Wash Plan (or Plan B) as a multiple species HCP process occurring in the Santa Ana River wash area, to address conservation

of and provide incidental take coverage for the San Bernardino kangaroo rat. The commenter also mentioned that the U.S. Army Corps of Engineers (ACOE) is preparing a Multiple Species Habitat Management Plan, to avoid, minimize, or offset impacts associated with the Seven Oaks Dam, which would also include conservation strategies for the San Bernardino kangaroo rat. The commenter stated that because Federal, State, and local stakeholders have invested significant amounts of time in both of these processes, it is only proper to delay designation of the final critical habitat until the completion of these processes.

Our Response:

The Service is aware of and has considered the Federal projects mentioned in the comment above in the process of revising designated critical habitat; however, we are under a court-ordered timeline to submit to the

Federal Register

a final rule revising critical habitat for the San Bernardino kangaroo rat by October 1, 2008.

Comment 30:

Several commenters provided information about the proposed critical habitat Unit 2 (Lytle/Cajon Creek wash) along the State Route 210 freeway (SR-210). Most of these comments indicated that areas along the freeway should be removed from critical habitat because they are developed or will soon be developed. Commenters suggested removing areas along the length of the SR-210, and specifically identified 100 feet along the north side of SR-210 and the south side of SR-210 in the vicinity of the Pepper Avenue extension project.

Our Response:

The revised critical habitat boundary in Unit 2 (Lytle/Cajon Creek wash) extends south to Highland Avenue, which is north of the new SR-210 crossing of Lytle Creek. Much of the areas around SR-210 that were commented on were not included in the proposed revision to critical habitat because they do not meet the definition of critical habitat. The delineated critical habitat boundary lies just north of SR-210. We are not designating critical habitat from Highland Avenue south in the Lytle/Cajon wash. Areas designated as critical habitat within Lytle Creek are occupied and contain the features essential to the conservation of the San Bernardino kangaroo rat.

Comment 31:

One commenter suggested the Service reject any proposal to remove critical habitat within the City of Highland in the area of Greenspot Road and City Creek/Plunge Creek just east of SR-30. The commenter stated that this area is viable, occupied habitat. The commenter indicated that removing this area from the critical habitat designation allows for the development of a shopping center. The commenter indicated that removal of this area from the critical habitat designation is not based on good science.

Our Response:

The area in the vicinity of Greenspot Road between SR-30 and Boulder Avenue/Orange Street does not support the PCEs required by the San Bernardino kangaroo rat in the appropriate quantity and spatial arrangement essential to the conservation of the subspecies as it consists of habitat degraded by mining activities and development or contains grassy fields. Furthermore, Plunge Creek at Orange Street is completely channelized and diverted from its historical connection with the Santa Ana River. We are aware that some areas in the vicinity of Greenspot Road not included in this designation may be sparsely occupied; however, we have determined that these areas do not meet the definition of critical habitat. There is a section of relatively undisturbed alluvial scrub habitat east of City Creek and SR-30 that we are including in this designation. Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions we implement under section 7(a)(1) of the Act. Any proposed activity, including the proposed shopping center mentioned in the comment would also be subject to the regulatory protections afforded by the section 7(a)(2) jeopardy standard, if a Federal nexus is involved, and the prohibitions of section 9 of the Act.

Comment 32:

One commenter stated it is reasonably foreseeable that the proposed critical habitat will, if approved, result in significant adverse impacts to the San Bernardino kangaroo rat. For this reason, the commenter encouraged the Service to reconsider its position regarding the National Environmental Policy Act (NEPA) and prepare environmental analyses as defined by NEPA before approving this reduction.

Our Response:

It is our position that, outside the jurisdiction of the Circuit Court of Appeals for the Tenth Circuit, we do not need to prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et seq.) in connection with designating critical habitat under the Act. We published a notice outlining our reasons for this determination in the

Federal Register

on October 25, 1983 (48 FR 49244). This assertion was upheld in the courts of the Ninth Circuit Court of Appeals (

Douglas County

v.

Babbitt,

48 F.3d 1495 (9th Cir. 1995), cert. denied 516 U.S. 1042 (1996)).

Comment 33:

One commenter stated that due to climate change in the future, the San Bernardino kangaroo rat will move slowly up the Lytle and Cajon Creek wash area instead of going further south.

Our Response:

We did not address potential impacts of global climate change on this subspecies in the proposed rule because we are not currently aware of any subspecies-specific or geographic-specific information on this potential threat. While we do not deny that global climate change is occurring, we cannot predict what areas might be important for this subspecies in light of future climate changes without on-the-ground evidence documenting range shift patterns in San Bernardino kangaroo rat populations. The commenter expressed a general concern for the effects of climate change on the San Bernardino kangaroo rat, but did not provide evidence supporting a possible range shift for this subspecies. Should additional data become available, we may revise this critical habitat designation subject to available funding and other conservation priorities.

Comment 34:

One commenter suggested that the Etiwanda fan needs to be retained because it is currently occupied and provides recovery opportunities for the subspecies.

Our Response:

The Etiwanda fan area is not included in this revision to critical habitat because we have determined that this area does not meet the definition of critical habitat. The area is significantly degraded, largely unoccupied, and does not contain the physical and biological features essential to the conservation of the San Bernardino kangaroo rat. We believe that our designation of critical habitat contains the areas necessary for the recovery and long-term conservation of this subspecies without the inclusion of the Etiwanda fan.

Comments From Other Federal Agencies

Comment 35:

The U.S. Forest Service (USFS) commented that they oppose the designation of critical habitat for the San Bernardino kangaroo rat on National Forest lands. The USFS further stated that the San Bernardino National Forest (SBNF) recently revised its Land and Resource Management Plan (LRMP), and management direction was incorporated that the USFS believes provides sufficient protection and management for the San Bernardino kangaroo rat and its habitat. They also stated that the Service concurred that these conservation measures provide protection for this subspecies when the Service issued a non-jeopardy biological

opinion on the LRMP in 2005 (Service 2005, p. 175). The USFS believes that no additional benefit to, or protection for, this subspecies would occur as a result of critical habitat designation of National Forest lands, it is simply not needed in order to conserve this subspecies. The USFS also stated that it currently has in place “special management considerations or protection” for this subspecies, and that it does not need any additional considerations or protection that critical habitat designation of National Forest lands might provide.

The USFS also commented that designation of critical habitat identified in the proposed rule would unnecessarily add to the USFS workload by requiring them to conduct a separate analysis and make a determination of effect for designated critical habitat when consulting under section 7 of the Act.

Our Response:

We determined that National Forest lands contain physical and biological features essential to the conservation of the San Bernardino kangaroo rat, and therefore, meet the definition of critical habitat (see “Criteria Used To Identify Critical Habitat” section below). We acknowledge that the revised LRMP will benefit the San Bernardino kangaroo rat and its habitat. The LRMP contains general provisions for species conservation and suggests specific management and conservation actions that will benefit this species and the physical and biological features essential to its conservation. Implementation of the LRMP should address known threats to this species on National Forest lands. We appreciate and commend the efforts of the USFS to conserve federally listed species on their lands.

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

As part of our section 7 consultation with the USFS on the SBNF LRMP, the USFS has already consulted on various activities carried out on National Forest lands including: Roads and trail management; recreation management; special use permit administration; administrative infrastructure; fire and fuels management; livestock grazing and range management; minerals management; and law enforcement. In our 2005 biological opinion on the LRMP, we determined that implementation of the plan was not likely to jeopardize the continued existence of the San Bernardino kangaroo rat or adversely modify critical habitat designated in 2002 for this subspecies. Since the USFS has already consulted with us on potential impacts to critical habitat related to the activities outlined in the LRMP, the designation of revised critical habitat should not require additional consultation for those activities.

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

Comments Related to the Draft Economic Analysis

Comment 36:

One commenter stated the Service needs to include all occupied and unoccupied, historical habitat in the economic analysis (and final critical habitat), and not rely on the flawed draft critical habitat as the basis for the economic analysis.

Our Response:

We believe our final designation accurately describes all specific areas meeting the definition of critical habitat for the San Bernardino kangaroo rat. As discussed in the “Criteria Used To Identify Critical Habitat” section of this final rule and response to comments 3 and 6 above, we delineated critical habitat for the San Bernardino kangaroo rat using the following criteria: (1) Areas occupied by the subspecies at the time of listing, and currently occupied, within the historical range of the subspecies (2) areas retaining fluvial dynamics containing one or more of the PCEs for the subspecies; (3) areas supporting a core population of the subspecies; and (4) areas demographically disconnected from the largest populations, but which may be important for the long-term recovery of the subspecies. Application of these criteria results in the determination of the physical and biological features that are essential to the conservation of this subspecies, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat.

We recognize that our designation does not encompass all known occurrences of this subspecies as noted by the commenter. Specifically, we did not include in the final designation small, isolated areas of degraded habitat or areas devoid of fluvial processes because such areas likely only support unsustainable populations that would not contribute to the recovery of the subspecies. Further, we designate critical habitat in areas outside the geographical area presently occupied by a species only when a designation limited to its present range would be inadequate to ensure the conservation of the species (50 CFR 424.12(e)). Accordingly, when the best scientific and commercial data do not demonstrate that the conservation needs of the species require designation of critical habitat outside of occupied areas, we will not designate critical habitat outside the geographical area occupied by the species. Although we are not designating all known occurrences of the San Bernardino kangaroo rat, we believe the areas we have identified as meeting the definition of critical habitat, and which are included in the final revised critical habitat designation, are adequate to ensure the conservation of the subspecies throughout its extant range. Species that are protected across their ranges are expected to have lower likelihoods of extinction (Soule and Simberloff 1986, pp. 32-35; Scott et al. 2001, pp. 1297-1300); we are designating multiple locations across the range of the subspecies to prevent range collapse.

We recognize that the designation of critical habitat may not include all of the habitat that may eventually be determined to be necessary for the recovery of the subspecies, and critical habitat designations do not signal that habitat outside the designation is unimportant or may not contribute to recovery. We do not agree that the proposed designation is flawed, and maintain it was appropriate to base the draft economic analysis on the areas included in the proposed rule.

Comment 37:

One commenter asserts that the Service must look only at the incremental cost of the proposed designation and not at the costs attributable to listing alone when considering exclusion of habitat areas.

Our Response:

The U.S. Office of Management and Budget's (OMB) guidelines for conducting economic analysis of regulations direct Federal agencies to measure the costs of a regulatory action against a baseline, which it defines as the “best assessment of the way the world would look absent the proposed action.” In other words, the baseline includes the existing regulatory and socio-economic burden imposed on landowners, managers, or other resource users potentially affected by the designation of critical habitat. Impacts that are incremental to that baseline (i.e., occurring over and above existing constraints) are attributable to the proposed regulation. Significant debate has occurred regarding whether assessing the impacts of the Service's proposed regulations using this baseline approach is appropriate in the context of critical habitat designations.

In order to address the divergent opinions of the courts and provide the most complete information to decision-makers, the economic analysis reports both: (a) The baseline impacts of SBKR conservation from protections afforded the species absent critical habitat designation; and (b) the estimated incremental impacts precipitated specifically by the designation of critical habitat for the species. Summed, these two types of impacts comprise the fully co-extensive impacts of San Bernardino kangaroo rat conservation in areas considered for critical habitat designation.

Incremental effects of critical habitat designation are determined using the Service's December 9, 2004, interim guidance on “Application of the ‘Destruction or Adverse Modification' Standard Under Section 7(a)(2) of the Endangered Species Act” and information regarding what potential consultations and project modifications may potentially occur as a result of critical habitat designation over and above those associated with the listing. In

Gifford Pinchot Task Force

v.

United States Fish and Wildlife Service,

the Ninth Circuit invalidated the Service's regulation defining destruction or adverse modification of critical habitat, and the Service no longer relies on this regulatory definition when analyzing whether an action is likely to destroy or adversely modify critical habitat. Under the statutory provisions of the Act, the Service determines destruction or adverse modification on the basis of whether, with implementation of the proposed Federal action, the affected critical habitat would remain functional to serve its intended conservation role for the species. A detailed description of the methodology used to define baseline and incremental impacts is provided later in this section.

Comment 38:

Two commenters request that the Service estimate the economic benefits of critical habitat designation, including positive health effects associated with foregone air pollution, water conservation, open space preservation, protection of other species, and savings from reduced flood plain development.

Our Response:

Under Executive Order 12866, OMB directs Federal agencies to provide an assessment of both the social costs and benefits of proposed regulatory actions. 22 OMB's Circular A-4 distinguishes two types of economic benefits: direct benefits and ancillary benefits. Ancillary benefits are defined as favorable impacts of a rulemaking that are typically unrelated, or secondary, to the statutory purpose (i.e., direct benefits) of the rulemaking.

In the context of critical habitat, the primary purpose of the rulemaking (i.e., the direct benefit) is the potential to enhance conservation of the species. The published economics literature has documented that social welfare benefits can result from the conservation of endangered and threatened species. In its guidance for implementing Executive Order 12866, OMB acknowledges that it may not be feasible to monetize, or even quantify, the benefits of environmental regulations due to either an absence of defensible, relevant studies or a lack of resources on the implementing agency's part to conduct new research. Rather than rely on economic measures, the Service believes that direct benefits of the proposed rule are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking.

Critical habitat designation may also generate ancillary benefits. Critical habitat aids in the conservation of species specifically by protecting the primary constituent elements on which the species depends. To this end, critical habitat designation can result in maintenance of particular environmental conditions that may generate other social benefits aside from the preservation of the species. That is, management actions undertaken to conserve a species or habitat may have coincidental, positive social welfare implications (e.g., increased recreational opportunities in a region). Although not the primary purpose of critical habitat, ancillary benefits may result in gains in employment, output, or income that may offset the direct, negative impacts to a region's economy resulting from actions to conserve a species or its habitat.

It is often difficult to evaluate the ancillary benefits of critical habitat designation. To the extent that ancillary benefits of the rulemaking may be captured by the market through an identifiable shift in resource allocation, they are factored into the overall economic impact assessment in this report. For example, if habitat preserves are created to protect a species, the value of existing residential property adjacent to those preserves may increase, resulting in a measurable positive impact. Where data are available, this analysis attempts to capture the net economic impact (i.e., the increased regulatory burden less any discernable offsetting market gains), of species conservation efforts imposed on regulated entities and the regional economy.

Comment 39:

One commenter expressed concern that the economic analysis relies too heavily on economic modeling to predict the impacts of the proposed rule on development. The economic analysis does not account for local factors, such as the presence of floodplains in San Bernardino kangaroo rat habitat and a slow housing market, which will depress development regardless of the critical habitat designation. In particular, other Federal laws and flood insurance policies, state law, and local land use policies generally prohibit development in floodplains.

Our Response:

As described in Appendix D, Section D.2 of the DEA, the analysis relies on growth projection data provided by the Southern California Association of Governments (SCAG), which is widely regarded as the most reliable and up-to-date source of this information.

Section 3.3.3.2 of the DEA describes the geographic scope of the analysis of impacts on development. The analysis considers the impacts on projected development in all privately owned, unprotected lands within the area proposed for final critical habitat designation. When projecting growth within the area of proposed critical habitat, flood plains were removed from the area of the analysis for the reasons expressed by the commenter. However, portions of the proposed critical habitat are located in areas outside of the floodplain boundaries. The area of proposed critical habitat includes uplands and low-lying areas that are not in the floodplain.

Comment 40:

One commenter argues that there is no basis or evidence that the costs of protecting the San Bernardino kangaroo rat will increase to $10.6 million per year.

Our Response:

As shown in Table ES-1 of the DEA, the baseline cost of protecting the San Bernardino kangaroo rat and its habitat is projected to be $15.2 million on an annualized basis. Additionally, incremental costs attributable to the designation of critical habitat are predicted to total $4.3 million on an annualized basis. It is unclear how the commenter's estimate of $10.6 million per year was obtained. As discussed on pages 2-3 and 2-7 of the DEA, the baseline costs are driven by foregone revenues to Eastern Municipal Water District of scaling back the Hemet/San Jacinto Recharge and Recovery Program by 30,000 acre feet per year. The costs associated with these activities are based on information provided by the Director of Engineering at Eastern Municipal Water District. The impacts of scaling back the groundwater recharge program will occur in the future; no comparable reduction in groundwater recharge occurred in the past. Therefore, future annual costs of protecting the San Bernardino kangaroo rat are expected to be higher than in the past.

Comment 41:

One commenter states that the DEA grossly inflates administrative and project modification costs, and cites as an example an estimate on page 45 of the DEA that the Bureau of Land Management (BLM) will spend $200,000 per year to install signs and enforce existing closures prohibiting off-road vehicle use on BLM lands. Furthermore, the commenter states that if incurred, these costs should not be attributed to the San Bernardino kangaroo rat. Finally, the commenter asserts that purchasing signage will have a positive regional effect on the economy that should off-set the costs.

Our Response:

The source of the commenter's example is unclear. The DEA does not have a page 45 or Section 4-5, nor does it estimate the costs of signage. To address the overall concern expressed in the comment, the DEA analyzes how entities will alter their behavior to conserve the San Bernardino kangaroo rat. If an agency will undertake a conservation measure for the benefit of the San Bernardino kangaroo rat, then the cost of that action is considered attributable to the San Bernardino kangaroo rat. Allocating economic resources to the conservation measure and away from other activities represents an opportunity cost. Conservation measures may have positive distributional effects; however, paying for the conservation measure essentially transfers resources away from other entities that would have incurred the distributional gains.

Comment 42:

One commenter stated that the DEA does not address any of the economic benefits of the designation of critical habitat.

Our Response:

See our response to comment 38 above.

Comment 43:

One commenter was concerned that the DEA does not analyze the economic impacts of the lands the Service added to the critical habitat designation.

Our Response:

The Addendum to the Economic Analysis of Critical Habitat Designation for San Bernardino Kangaroo Rat, which analyzes the additional lands proposed for critical habitat designation, was made available to the public for review and comment on July 29, 2008.

Comment 44:

One commenter noted that the housing projections in the DEA do not account for LDC plans to develop 5,800 houses in Unit 2.

Our Response:

We revised the development projections in the Final Economic Analysis (FEA) (see pages 2-11 to 2-15 and pages 3-4 to 3-11 of the FEA) to account for LDC's planned development in Unit 2.

Comment 45:

Two commenters explained that the DEA significantly underestimates economic impacts in Unit 2 because it does not account for LDC's development plans.

Our Response:

We recalculated impacts in the FEA to account for LDC's home development projections. See pages 2-14 to 2-15 and pages 3-10 to 3-11 of the FEA for the revised impacts in Unit 2.

Comment 46:

Two commenters pointed out that LDC is intending to develop 647 acres of its property that is mostly within upland San Bernardino kangaroo rat habitat. According to the commenter, designation of critical habitat on these 647 acres would place uncertainty over LDC's economic use and development potential.

Our Response:

The FEA includes all costs associated with the impact of critical habitat on LDC's 647 acres (see pages 2-14 and 3-10 of the FEA). The economic analysis accounts for lost land values, delay, and other costs related to regulatory uncertainty.

Comment 47:

One commenter argued that the DEA incorrectly assumes that there is no limitation on the stock of land available for mitigation purposes. The commenter suggested that the DEA will need to either identify the location and amount of suitable San Bernardino kangaroo rat habitat that is available for use as future San Bernardino kangaroo rat habitat mitigation land or the analysis in the DEA will need to be revised to factor in the true effects of there being only a small and finite amount of suitable San Bernardino kangaroo rat habitat available for use as mitigation land.

Our Response:

While we agree that only a finite amount of San Bernardino kangaroo rat habitat exists, there is sufficient evidence from conservation banks (see pages 2-11 to 2-12 of the FEA) that ample land exists within and outside of conservation banks to accommodate potential future compensation for impacts to the San Bernardino kangaroo rat and its habitat.

Comment 48:

One commenter asserted the DEA incorrectly estimates the per acre cost of San Bernardino kangaroo rat mitigation habitat. The commenter cited evidence that the cost of mitigation land has gone up in the last ten years. The commenter reasoned that one can expect the cost of mitigation land to continue to rise in the future.

Our Response:

We consulted with local conservation bank owners and consultants familiar with the area to determine the likely future cost of conservation bank credits (see footnote 56 in the DEA). We used the best available conservation bank prices to estimate the future costs of conservation. We confirmed these prices with conservation bank owners for the FEA (see page 2-12 of the FEA).

Comment 49:

A commenter stated that the evaluation of the economic cost of this proposed designation in the DEA is limited by defining the time period of the economic analysis as the next 22 years.

Our Response:

As explained on page 1-17 of the DEA, the economic analysis calculates impacts based on activities that are “reasonably foreseeable.” The standard framework for economic analyses calculates impacts in a twenty year timeframe. Future impacts were calculated in the DEA through the year 2030 to be consistent with Southern California Association of Governments projections.

Comment 50:

A commenter criticized the DEA for overvaluing the impacts of critical habitat. The commenter asserts that all of the costs would be required even if critical habitat had not been designated because the San Bernardino kangaroo rat currently lives in those areas.

Our Response:

We disagree with the commenter's assertion that all potential costs would be required even without critical habitat. The DEA quantifies the baseline impacts, defined as those future impacts that result from listing and other conservation efforts for the San Bernardino kangaroo rat. Baseline impacts include costs that would be required because the San Bernardino

kangaroo rat is found in the area. The DEA also quantifies incremental impacts, which are impacts that would not exist but for the designation of critical habitat. These costs occur above and beyond those associated with San Bernardino kangaroo rats living in the area.

Comment 51:

One commenter pointed to page 11 of the Draft Addendum to the Economic Analysis, stating that a proponent agency does not have the legal authority to determine if a project will adversely affect a federally endangered species or its habitat. The commenter noted that these determinations are required to have the Service's concurrence.

Our Response:

The commenter was concerned with the following passage on page 11 of the Draft Addendum: “[San Bernardino County Flood Control District (SBCFCD)] maintains in-house biologists who review all proposed projects to determine whether the project may affect the San Bernardino kangaroo rat or its habitat. San Bernardino County Flood Control District self-regulates by avoiding projects in critical habitat that the biologists determine may adversely affect the San Bernardino kangaroo rat or its habitat. If SBCFCD determines that the project is warranted despite the potential adverse effects to the San Bernardino kangaroo rat (e.g., if there is a potential for substantial flood damage), then SBCFCD will undertake the project and consult with the Service.”

As explained in this passage, SBCFCD avoids projects that it thinks may warrant consultation with the Service for impacts to the San Bernardino kangaroo rat or its habitat. San Bernardino County Flood Control District consults with the Service when it undertakes a project in an area occupied by San Bernardino kangaroo rats or within the San Bernardino kangaroo rat critical habitat boundaries. San Bernardino County Flood Control District does not determine if a project will or will not adversely affect a federally endangered species or its habitat independently from the Service.

Summary of Changes From the 2002 Critical Habitat Designation

We stated in our April 23, 2002 rule that we designated “33,295 ac (13,485 ha)” of critical habitat for the San Bernardino kangaroo rat. When corrected for summing, rounding, and conversion errors, the 2002 designation of critical habitat totaled 33,291 ac (13,472 ha). The areas identified in this final rule constitute a revision to the 2002 designation. In this final rule we are designating 7,779 ac (3,148 ha) of land in Riverside and San Bernardino counties, California. Below we describe the changes in each unit between the 2002 final critical habitat rule, the 2007 revised proposed critical habitat rule, and this 2008 final revised critical habitat rule for the San Bernardino kangaroo rat (summarized in Table 1). Discrepancies in reported acreages between the 2002 designation and this final revision are due to refinements in our ability to more precisely calculate acreages. The entire final revised critical habitat designation (i.e., 7,779 ac (3,148 ha)) is contained within the area included in the 2002 final critical habitat designation.

Our revised critical habitat designation is substantially smaller than the existing designation. Updated information that became available to us in the five years since the previous designation indicates that we erroneously designated some areas. Improved and updated biological information submitted to our office and gained during site visits in December 2006 and January 2007 allowed us to: (1) Revise the criteria used to identify critical habitat and focus attention on core populations in undisturbed habitat with retained fluvial dynamics; (2) more specifically define and map areas supporting the physical or biological features for this subspecies; and (3) precisely ground-truth areas included in the 2002 critical habitat designation. As described in detail below, our review of updated information led us to revise our criteria used to identify critical habitat (see “Criteria Used To Identify Critical Habitat” section) and resulted in our removal of several areas that were previously designated as we determined that these areas do not meet the definition of critical habitat.

The 2000 proposed rule and the 2002 critical habitat designation describe the geographical area occupied by the San Bernardino kangaroo rat at the time it was listed in 1998, including the Santa Ana River, Lytle Creek, Cajon Creek, San Jacinto River, City Creek, Etiwanda fan and wash, Reche Canyon and South Bloomington. All units designated as critical habitat in 2002 (i.e., Santa Ana River, Lytle/Cajon/Cable creeks, San Jacinto River/Bautista Creek, and Etiwanda fan) were considered occupied at the time of listing and designation. The background section of the 2002 critical habitat designation provides justification explaining how the original listing rule significantly underestimated the amount of area occupied by the subspecies at the time of listing and concludes that a minimum of 32,507 ac (as mathematically converted), or 13,155 ha, were occupied at the time of listing. The criteria utilized for the 2002 designation identified areas that supported few occurrence records for inclusion in the designation. We have now determined, based on the best currently available information, that such areas of low density occupation (or sporadic occupancy) are not likely to contribute to the long-term conservation of this subspecies as they do not support core populations, are not capable of supporting a core population in the near future, and they provide little protection against stochastic events. Areas that contain the physical and biological features that are essential to the conservation of this subspecies, identified as the subspecies' PCEs laid out in the appropriate quantity and spatial arrangement, are those areas capable of supporting a core population of San Bernardino kangaroo rats and providing protection against stochastic events. Therefore, some areas supporting low density or sporadic occupancy designated in 2002 were removed from this revised designation. Finally, we employed refined mapping techniques using updated aerial imagery in the current revision, which allowed us to more precisely map areas that contain PCEs. This refined approach allowed us to remove areas that do not meet the definition of critical habitat.

The main differences in this revised designation compared to the 2002 critical habitat designation include the following:

(1) On the basis of our new analyses involving the factors described above, we determined that portions of the 2002 (i.e., existing) Unit 1 (Santa Ana River), Unit 2 (Lytle and Cajon Creeks), Unit 3 (San Jacinto River), and all of Unit 4 (Etiwanda Alluvial Fan and Wash) do not contain PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the San Bernardino kangaroo rat. Therefore, we are not including these areas in our revision to critical habitat. The following paragraphs provide unit by unit explanations why areas previously designated as critical habitat do not meet the definition of critical habitat for the San Bernardino kangaroo rat.

We removed approximately 4,658 ac (1,885 ha) within Unit 1 (Santa Ana River) from our revision to critical habitat, largely because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies, identified as the subspecies' PCEs laid out in the appropriate quantity and spatial arrangement. Below we describe the six general areas removed and the

habitat status in those areas. Occurrence data from these six areas indicate that none of these areas currently support or are capable of supporting core populations in the near future. The inability to support a core population further underscores the habitat data indicating that these areas do not contain the physical and biological features that are essential to the conservation of the San Bernardino kangaroo rat. First, areas along Mill Creek, especially to the north, do not provide suitable habitat for this subspecies. Second, a flood control levee south of Mill Creek cut off habitat from fluvial processes, which resulted in overgrown vegetation and water retention basins that are unsuitable habitat conditions for the subspecies. Third, the stretch of the Santa Ana River below Seven Oaks Dam and areas to the north and west of a large barrow pit are cut off from fluvial processes and water retention basins have been constructed in the area. Fourth, a large area within the 2002 critical habitat designation near Plunge Creek extending south and west to the confluence of City Creek with the Santa Ana River is degraded due to mining operations, flood control structures (and the subsequent loss of fluvial influence necessary to maintain habitat), and water retention basins. Fifth, the habitat downstream of Tippecanoe Avenue Bridge is heavily channelized with steep banks inhibiting the use of upland habitat; we do not have data indicating that this area is occupied. Sixth, there are also a number of smaller areas of degraded habitat around the periphery of the 2002 critical habitat designation that are not included in this revision to critical habitat because these areas do not contain the physical and biological features essential to the conservation of this subspecies.

We removed approximately 9,284 ac (3,757 ha) within Unit 2 (Lytle and Cajon Creeks) from our revision to critical habitat, largely because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies. Below we describe the six general areas removed and the habitat status in those areas. Occurrence data from these six areas indicate that none of these areas currently support or are capable of supporting core populations in the near future. The inability to support a core population further underscores the habitat data indicating that these areas do not contain the physical and biological features that are essential to the conservation of the San Bernardino kangaroo rat. First, one separate parcel northeast of the main Lytle/Cajon Creek unit (labeled as Unit 2 B in the 2002 critical habitat rule) contains habitat that is degraded and this area is largely unoccupied. Second, the southernmost portion of Lytle Creek contains habitat that is degraded through surface mining and flood control structures, making this area unsuitable for the subspecies. Third, the upper reaches of both Lytle and Cajon Creeks contain large rocky substrates that do not provide habitat for this subspecies and we have no recent occurrence data for these upstream areas. Fourth, portions of habitat along the Lytle Creek arm are degraded from sand and gravel mining operations and associated infrastructure. Fifth, after formal consultation with the Service was completed, approximately 670 ac (271 ha) within the 2002 critical habitat designation that is north of Lytle Creek and east of I-15 is currently under development for the Lytle Creek North development project. Sixth, a large expanse of a remnant flood plain south of Lytle Creek and I-15 and west of Riverside Avenue is partially developed and does not contain the PCEs for the subspecies. It was suggested in the 2002 critical habitat designation that this area could provide connectivity with the Etiwanda fan; however, this area is void of fluvial influence, does not support a core population, and is cut off from Lytle Creek and the Etiwanda fan by extensive roadways. Therefore, we believe that demographic or genetic connectivity through the remnant flood plain south of Lytle Creek is unlikely. Because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies, we are not including them in the revision to critical habitat.

A portion of a separate parcel designated in 2002 as part of Unit 2 is now designated as Unit 4 (Cable Creek Wash) in this revised critical habitat designation (see Table 1 and the Unit Descriptions section).

We removed approximately 4,757 ac (1,925 ha) within Unit 3 (San Jacinto River) from our revision to critical habitat, largely because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies. Below we describe the five general areas removed and the habitat status in those areas. Occurrence data from these five areas also indicate that none of these areas currently support or are capable of supporting core populations in the near future. The inability to support a core population further underscores the habitat data indicating that these areas do not contain the physical and biological features that are essential to the conservation of the San Bernardino kangaroo rat. First, portions of Bautista Creek and the downstream reach of the San Jacinto River are largely channelized and do not contain the PCEs or provide suitable habitat for the San Bernardino kangaroo rat. Second, we included in the 2002 critical habitat designation the downstream portion of the San Jacinto River (downstream of State Route 79) because we believed the area contained essential physical and biological features that would reduce risks to the subspecies from stochastic events. Based on our evaluation of the best scientific information currently available, we no longer consider this area to meet the definition of critical habitat because site visits have revealed that this channelized section of the San Jacinto River is less alluvial and more riparian in nature, and thus is unlikely to reduce the risks from stochastic events and does not contain the physical and biological features essential to the conservation of this subspecies. Third, the channelized areas of the San Jacinto River and Bautista Creek prevent connectivity with the core population in the San Jacinto wash. Fourth, at the time of the 2002 critical habitat rule, we believed that Tribal lands in Unit 3 were occupied, despite a lack of occurrence data for these areas. We believed this because the Tribal lands were continuous with adjacent areas of habitat in the San Jacinto River known to be occupied; however, we still do not have occurrence data or habitat condition data for the two tributaries on Tribal land north of the San Jacinto wash and are not designating critical habitat on Tribal lands in this revised critical habitat designation (see “Government-to-Government Relationship with Tribes” section). Fifth, in the eastern most (upstream) portion of the San Jacinto River that was designated as critical habitat in 2002, we do not have occurrence data to indicate that the area is occupied or supports a core population of San Bernardino kangaroo rats. Based on the best scientific information currently available, we no longer believe these areas contain the physical and biological features that are essential to the conservation of this subspecies, and are not including them in the revision to critical habitat.

A portion of a separate parcel designated as part of Unit 3 in 2002 is now designated as Unit 5 (Bautista Creek) in this revised critical habitat designation (see Table 1 and the “Unit Descriptions” section).

We removed approximately 4,820 ac (1,951 ha) within Unit 4 (Etiwanda Alluvial Fan and Wash) from our

revision to critical habitat, largely because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies. In the 2002 critical habitat rule, we stated that the Etiwanda fan was likely occupied by a small remnant population of the subspecies, but urban development and existing and proposed flood control structures will preclude the occurrence of future natural fluvial processes in portions of the unit. Additionally, we stated that despite these conditions, the San Bernardino kangaroo rat persists in some areas of the unit. Since the 2002 critical habitat designation, flood control structures and urban development have continued to alter the natural flood regime of this alluvial fan resulting in poor habitat conditions. Occurrence data from these areas also indicates that none of these areas currently support or are capable of supporting core populations in the near future. The inability to support a core population further underscores the habitat data indicating that these areas do not contain the physical and biological features that are essential to the conservation of the San Bernardino kangaroo rat. Furthermore, site visits confirmed that occupied areas within this unit do not contain the PCEs in the appropriate quantity and spatial arrangement necessary to sustain a core population of this subspecies into the future. Connectivity with the nearest core population in Unit 2 is precluded by development and roadways. Because these areas do not contain the physical and biological features that are essential to the conservation of this subspecies, we are not including them in the revision to critical habitat.

(2) We re-evaluated and revised the PCEs as needed in light of applicable case law and current Service guidelines and policies. We revised the PCEs to provide more specificity with regard to the location of and necessity for suitable soil types, vegetative habitat, and upland areas related to the biological needs of the subspecies. We also included a range of the preferred percentage of vegetative cover. We note that revisions to the PCEs alone did not result in the removal of existing critical habitat from this revised critical habitat designation, nor did it result in the identification of areas outside the 2002 designation that meet the definition of critical habitat.

(3) In the 2002 critical habitat mapping process, we used aerial photography at a scale of 1:24,000 and 2001 digital orthophotography. In the process of mapping and delineating boundaries for this revised critical habitat designation we used USDA NAIP 2005, 1 meter True Color Aerial Photography. This updated aerial imagery allowed us to more accurately and precisely delineate boundaries of critical habitat.

(4) In addition to the areas that we removed from the 2002 designation in this final revision to critical habitat, we also excluded approximately 2,917 ac (1,180 ha) under section 4(b)(2) of the Act (see “Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat” and “Exclusions Under Section 4(b)(2) of the Act” sections of this final rule for detailed discussion of the exclusions).

Table 1—Changes Between the April 23, 2002, Critical Habitat Designation, the June 19, 2007, Proposed Designation, and This Final Revised Designation

Critical habitat unit in this final rule

County

Area identification used in this rule

2002 designation of critical habitat (67 FR 19812) and ac (ha)

2007 proposed revision to the critical habitat designation (72 FR 33808) and ac (ha)

2008 final revised critical habitat designation and ac (ha)

1. Santa Ana River Wash

San Bernardino

Plunge Creek

All 3 areas included in Unit 1; 8,935 ac (3,616 ha)

Small section proposed as part of Unit 1; 3,623 ac (1,466 ha)

3

All 3 areas included as Unit 1; 3,258 ac (1,318 ha).

Mill Creek

ditto

Considered not to be essential; not proposed

3

ditto.

Santa Ana River and City Creek

ditto

Included as part of Unit 1; 3,623 ac (1,466 ha)

ditto.

2. Lytle/Cajon Creek Wash

San Bernardino

Lytle Creek and Cajon Creek

Both areas included in Unit 2; 13,970 ac (5,653 ha)

Included as part of Unit 2; 4,686 ac (1,896 ha)

Included as Unit 2; 3,421 ac (1,384 ha).

Cable Creek

ditto

Considered not to be essential; not proposed

3

Included as Unit 4; 483 ac (195 ha).

3. San Jacinto River Wash

Riverside

San Jacinto River

Both areas included in Unit 3; 5,565 ac (2,252 ha)

Included as Unit 3; 769 ac (311 ha)

Included as Unit 3; 506 ac (205 ha).

Bautista Creek

ditto

Considered not to be essential; not proposed

3

Included as Unit 5; 111 ac (45 ha).

4. Cable Creek Wash

San Bernardino

Cable Creek

Included as part of Unit 2; 13,970 ac (5,653 ha)

Considered not to be essential; not proposed

3

Included as Unit 4; 483 ac (195 ha).

5. Bautista Creek

Riverside

Bautista Creek

Included as part of Unit 3; 769 ac (311 ha)

Considered not to be essential; not proposed

3

Included as Unit 5; 111 ac (45 ha).

Etiwanda Alluvial Fan

1

San Bernardino

Etiwanda Alluvial Fan

Unit 4; 4,820 ac (1,950 ha)

Considered not to be essential; not proposed

Determined not to be essential.

Totals

33,291 ac

2

(13,472 ha)

9,078 ac (3,674 ha)

7,779 ac (3,148 ha).

1

The Etiwanda Alluvial Fan was considered Unit 4 in the 2002 final critical habitat rule (67 FR 19812); however, the Cable Creek Wash is now considered Unit 4 in this final revised critical habitat rule.

2

The 2002 rule incorrectly stated that “33,295 (13,474 ha)” were designated.

3

These areas were added to proposed critical habitat in the April 16, 2008, NOA (73 FR 20581).

Summary of Changes From the 2007 Proposed Rule To Revise Critical Habitat

The areas identified in this final revised rule also constitute a revision of the areas we proposed to designate as critical habitat for the San Bernardino kangaroo rat on June 19, 2007 (72 FR 33808). In light of substantial public comments and a revision of our criteria used to identify critical habitat, we reevaluated and included in this final rule four areas that were not included in the 2007 proposed rule. These areas (described below) include Mill Creek and Plunge Creek in Unit 1, and Cable Creek and Bautista Creek in Units 4 and 5. These additions to proposed critical habitat were announced in the April 16, 2008, NOA (73 FR 20581). The reduction in total area from the 2007 proposed critical habitat designation is primarily the result of exclusions of habitat under section 4(b)(2) of the Act (described below). The main differences between the 2007 proposed critical habitat rule and this final rule include the following:

(1) During the first and second comment periods for the proposed rule, we received significant comments from the public, including biologists familiar with the San Bernardino kangaroo rat, which led us to reevaluate and revise our criteria used to identify critical habitat. Please see the “Changes to Proposed Revised Critical Habitat” section of the April 16, 2008, NOA (73 FR 20581), and the “Criteria Used To Identify Critical Habitat” section of this final rule for more information on our revised criteria.

(2) During the first and second comment periods for the proposed rule, we received significant comments from the public, including biologists familiar with the San Bernardino kangaroo rat, on areas essential to the subspecies that should be included in the designation. As a result of these comments, new information received, and revision of the criteria used to identify critical habitat, we reevaluated the following areas: Mill Creek, Plunge Creek (including areas providing habitat connection between the Plunge Creek wash and Santa Ana River wash), Cable Creek wash, and Bautista Creek. All of these areas are were designated as critical habitat for the San Bernardino kangaroo rat in 2002 (see 50 CFR 17.95(a); 67 FR 19812, April 23, 2002); however, we did not propose these areas as critical habitat in the June 19, 2007, proposed revision to critical habitat (72 FR 33808). Below we describe each area we reevaluated, explain why we did not include the area in the 2007 proposed rule, and explain why we are including these areas in the final revised designation of critical habitat.

Mill Creek

Mill Creek flows into and joins the Santa Ana River wash (Unit 1) in the eastern side of the unit. We did not include the Mill Creek area in the 2007 proposed rule (72 FR 33808), although we indicated that it was considered important to the subspecies by contributing fluvial dynamics to the Santa Ana River wash. At the time of the proposed revised rule, we had limited survey data to indicate Mill Creek was occupied by the San Bernardino kangaroo rat. Furthermore, we determined this area contained large expanses of unsuitable habitat. As such, we did not include the majority of lower Mill Creek in the June 19, 2007, proposed revision to critical habitat.

During the public comment period, we received a number of comments highlighting the importance of Mill Creek as an area not only occupied by the San Bernardino kangaroo rat connected to and contiguous with the core population in the Santa Ana wash, but also indicating that the area contains the physical and biological features essential to the conservation of this subspecies. Upon receiving comments from the public about Mill Creek, we reevaluated our data in this area. Evidence of extensive burrowing activity observed by Service biologists indicates this area is occupied by kangaroo rats, and live-trapping confirms that Mill Creek is occupied by the San Bernardino kangaroo rat subspecies. Based on this information, we determined that the reach of Mill Creek occupied by the San Bernardino kangaroo rat to its confluence with the Santa Ana River is important to the recovery of the subspecies because it is the only large stretch of contiguous, occupied habitat for the San Bernardino kangaroo rat within Unit 1 that is not fragmented by development (e.g., roads, aggregate mining pits). Further, we confirmed that habitat at Mill Creek is connected to and contiguous with habitat supporting the core population in Unit 1, and therefore, San Bernardino kangaroo rats inhabiting Mill Creek are part of the Santa Ana River wash core population.

We also received comments about the importance of Mill Creek as a source of sediment through natural fluvial dynamics to the majority of the Santa Ana River wash (Unit 1). Existing infrastructure (e.g., levees, culverts, concrete-lined channels, bridge abutments and other fill) affects the function of the Santa Ana River and its tributaries within the historical and current range of this subspecies. As a result, the historical floodplain dynamics within the upper Santa Ana River watershed are permanently altered (MEC 2000, pp. 175-176). Periodic flooding provides natural scour and sediment deposition, decreases vegetation density and cover, and naturally maintains the alluvial sage scrub that supports this subspecies. Mill Creek is the only remaining source of alluvial sediments remaining within Unit 1 that has not been significantly altered by flood control structures, water diversions, or other activities. Although the Santa Ana River is incised just downstream from its confluence with Mill Creek, floodplain elevations downstream (e.g., downstream of Opal Street in Mentone) allow overbank scour

and sediment deposition during even small- to moderate-intensity storms. The periodic deposition of sediments from Mill Creek helps to naturally maintain the soil and alluvial fan sage scrub (i.e., the PCEs upon which the survival and recovery of the San Bernardino kangaroo rat in Unit 1 depend) within critical habitat along the Santa Ana River as suitable habitat to support the core population of San Bernardino kangaroo rats within this unit. We determined that this area of Mill Creek meets the definition of critical habitat, and we are including 388 ac (157 ha) of Mill Creek in the final revision to critical habitat for Unit 1.

Plunge Creek

Plunge Creek is located north of the main stem of the Santa Ana River in Unit 1 and is largely isolated from the core population of San Bernardino kangaroo rats in the wash by sand and gravel mining operations. A portion of Plunge Creek was included in the June 19, 2007, proposed revision to critical habitat, but no critical habitat connection existed between this area of Plunge Creek and other portions of proposed Unit 1.

We did not propose revised critical habitat connecting Plunge Creek to other critical habitat areas in proposed Unit 1 because, although lands in this area are managed by the Bureau of Land Management (BLM), the BLM is considering the revision of their South Coast Resource Management Plan and an exchange of land within their existing Area of Critical Environmental Concern (ACEC) for lands that are privately owned within the Santa Ana River wash. Should this exchange occur, we anticipate that the Upper Santa Ana River Habitat Conservation Plan (USAR HCP, also known as “Plan B”) would be proposed. The land exchange would occur to facilitate aggregate mining, water conservation, roadway improvements, and other activities in areas that are now within the ACEC, while other, less-disturbed habitat areas for the San Bernardino kangaroo rat would be conserved through the implementation of the USAR HCP.

Although we have been working with the BLM and associated stakeholders on the land exchange for many years, we have not yet been asked by the BLM to formally consult on this action. However, during collaboration with the BLM and stakeholders in the USAR HCP, we agreed upon a potential future mining boundary. Our June 19, 2007, proposed revision to critical habitat did not include any areas identified in this collaboration as areas where future mining may occur.

We received significant comment from the public highlighting the importance of Plunge Creek to the conservation of the San Bernardino kangaroo rat. Commenters were concerned that the proposed revision to critical habitat around Plunge Creek (which is north of existing and proposed mining pits) did not connect to critical habitat in the Santa Ana River mainstem south of these pits. Plunge Creek is extensively modified upstream of Greenspot Road by levees and the bridge crossing the creek on Greenspot Road, and the creek at Orange Street is completely channelized and diverted from its historical connection with the Santa Ana River. However, significant sediment deposition occurs immediately downstream of the Greenspot Road bridge and provides for habitat renewal in portions of the adjacent WSPA and the reach of Plunge Creek from Greenspot Road to its diversion at Orange Street. This area of relatively undisturbed alluvial scrub is occupied by the San Bernardino kangaroo rat. Commenters, including biologists familiar with the San Bernardino kangaroo rat, stated that it is important for the persistence of the subspecies in Unit 1 that the demographic and genetic connectivity of populations in Plunge Creek and the Santa Ana wash be conserved.

Based on information received and additional analysis of our own data, we determined that the population of San Bernardino kangaroo rats in Plunge Creek is at risk of local extirpation without a habitat connection in Unit 1 to provide for demographic and genetic exchange between San Bernardino kangaroo rats in Plunge Creek and the Santa Ana River main stem area. We are including approximately 265 ac (107 ha) of occupied habitat in the final revision to critical habitat for Unit 1. This additional area, which contains the physical and biological features essential to the conservation of the subspecies, provides connectivity between Plunge Creek and the core population in the Santa Ana River wash.

Cable Creek Wash

The Cable Creek wash is located northeast of the Lytle/Cajon Creek wash (within current Unit 2) on the opposite side of Interstate 215 (I-215). This wash,

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