# Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for Cirsium loncholepis (La Graciosa Thistle)

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URL: https://www.frixlaw.com/law-library/documents/fr%3AE9-26221

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** November 3, 2009
- **Citation:** 74 FR 56978

## Text

DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0078]
99210-1117-0000-B4
[RIN 1018-AV03]

Endangered and Threatened Wildlife and Plants; Revised Designation of Critical Habitat for
Cirsium loncholepis
(La Graciosa Thistle)

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
Cirsium loncholepis
(La Graciosa thistle). We are designating approximately 24,103 acres (ac) (9,754 hectares (ha)) of habitat in San Luis Obispo and Santa Barbara Counties, California, as critical habitat for
C. loncholepis
. This final revised designation constitutes a reduction of approximately 16,986 ac (6,873 ha) from the 2004 designation of critical habitat for
C. loncholepis
.

DATES:

This rule becomes effective on December 3, 2009.

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/ventura/
. Comments and materials received, as well as supporting documentation used in the preparation of this final rule, are available for public inspection, by appointment, during normal business hours, at the U.S. Fish and Wildlife Service, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 805/644-3958).

FOR FURTHER INFORMATION CONTACT:

Diane K. Noda, Field Supervisor, Ventura Fish and Wildlife Office, 2493 Portola Road, Suite B, Ventura, CA 93003 (telephone 805/644-1766; facsimile 805/644-3958). 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 revised designation of critical habitat for
Cirsium loncholepis
in this final rule. For more information on the taxonomy, biology, and ecology of
C. loncholepis
, refer to the final listing rule published in the
Federal Register
(FR) on March 20, 2000 (65 FR 14888), the final designation of critical habitat for
C. loncholepis
published on March 17, 2004 (69 FR 12553), the proposed revised designation of critical habitat published in the
Federal Register
on August 6, 2008 (73 FR 45806), and the March 10, 2009, availability of the draft economic analysis (DEA) (74 FR 10211).

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

We did not receive any new substantial information pertaining to the description, life history, distribution, ecology, or habitat of
Cirsium loncholepis
following the 2008 proposed revised designation of critical habitat for this species. Therefore, please refer to the final listing rule published in the
Federal Register
on March 20, 2000 (65 FR 14888), and the proposed revised designation of critical habitat published on August 6, 2008 (73 FR 45806), for a discussion of the species' description, life history, distribution, ecology, and habitat.

Previous Federal Actions

On March 17, 2004, we designated critical habitat for
Cirsium loncholepis
on approximately 41,089 acres (ac) (16,628 hectares (ha)) of land in San Luis Obispo and Santa Barbara Counties, California (69 FR 12553). In March 2005, the Homebuilders Association of Northern California,
et al.
, filed suit against the Service (CV-013630LKK-JFM) challenging final critical habitat rules for several species, including
C. loncholepis
. In March 2006, a settlement was reached that requires the Service to re-evaluate five final critical habitat designations, including critical habitat designated for
C. loncholepis
. The settlement, as subsequently modified on May 18, 2007, stipulated that we would submit any proposed revisions to the
C. loncholepis
designation to the
Federal Register
for publication on or before July 27, 2008, and a final determination by July 27, 2009. By stipulation and order entered May 8, 2009, the deadline for submission of revisions to the final critical habitat designation was extended to on or before October 27, 2009. We published the proposed revisions to the critical habitat designation for
C. loncholepis
in the
Federal Register
on August 6, 2008 (73 FR 45806), and accepted public comments on the proposed revisions until October 6, 2008.

On March 10, 2009, we published in the
Federal Register
a notice of availability (NOA) of the DEA (dated January 16, 2009), and opened the second public comment period on the proposed designation of revised critical habitat (74 FR 10211). This final rule completes our obligations under the March 23, 2006, settlement agreement regarding
Cirsium loncholepis
. For a discussion of additional information on previous Federal actions concerning
C. loncholepis
, refer to the final listing rule published on March 20, 2000 (65 FR 14888), and the final designation of critical habitat published on March 17, 2004 (69 FR 12553).

Summary of Comments and Recommendations

We requested written comments from the public on the proposed revised designation of critical habitat for
Cirsium loncholepis
during two comment periods. The first comment period opened August 6, 2008 (73 FR 45806), associated with the publication of the proposed rule, and closed October 6, 2008. The second comment period opened March 10, 2009 (74 FR 10211), associated with the availability of the DEA, and closed April 9, 2009. During these two 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 species and the associated DEA.

During the first public comment period, we received 16 comments directly addressing the proposed revision of critical habitat. We received one request for a public hearing, which was subsequently retracted. During the second public comment period, we received 16 comments directly addressing the proposed revision of critical habitat for this species or the DEA.

Peer Review

In accordance with our policy on peer review for activities under the Endangered Species Act of 1973, as amended (Act) (16 U.S.C. 1531
et seq.
), published on July 1, 1994 (59 FR 34270), we solicited expert opinions from eight knowledgeable individuals with scientific expertise that included familiarity with the species, the geographic region in which it occurs, and conservation biology principles pertinent to the species. We received responses from five 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
Cirsium loncholepis
. 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 noted that several areas beyond those proposed for designation as critical habitat contain habitat and features important for recovery of
Cirsium loncholepis
. Specifically, Guadalupe Lake was (and sometimes still is) the largest seasonal lake on the floor of the Santa Maria Valley, that it still persists today, and that it is likely that
C. loncholepis
was associated with this feature and its surrounding wetlands, as well as swales on the Orcutt Terrace. The commenter added that restoration of Guadalupe Lake (hydrology and vegetation) should be a primary focus of conservation efforts for
C. loncholepis
in this portion of the Santa Maria Valley and Orcutt Creek and that Unit 2 should be expanded to include Guadalupe Lake. Three additional areas that the peer reviewer recommended for inclusion in the critical habitat designation are: (1) The Mussel Rock dune sheet that contains dune swale wetlands; (2) the coastal mesa of Burton Mesa (south of San Antonio Creek), which has suitable
Cirsium
habitat and would provide connectivity between San Antonio Terrace and the Santa Ynez River; and (3) the interior portions of the Orcutt Terrace Dune Sheet that contain vernal pools and vernal pool complexes and support other listed “wetland” species (specifically the federally endangered California tiger salamander (
Ambystoma californiense
)). The interior portions of the Orcutt Terrace Dune Sheet contain areas such as Guadalupe Lake, Green Canyon, “Bradley Lake,” and “West Bradley Lake” and would provide an excellent patchwork of open space areas for dispersal of
C. loncholepis
seed and connectivity via wind and hydrological processes.

Our Response
: We determined that these four areas (Guadalupe Lake, the remaining portions of the Mussel Rock Dune Sheet, Burton Mesa (south of San Antonio Creek), and interior portions of the Orcutt Terrace Dune Sheet) are important for recovery but not essential for the conservation of
Cirsium loncholepis
. We acknowledge that these areas do contain suitable habitat and the primary constituent elements (PCEs) for the species, but not in the quantity, quality, and spatial arrangement to make them essential for the conservation of the species. As opportunities arise, we will work with local landowners to advance the recovery of
C. loncholepis
in these areas by increasing connectivity via suitable habitat patches for
C. loncholepis
and seed dispersal. We are designating as critical habitat areas along Orcutt Creek that contain the highest quality areas of suitable habitat that will serve as “stepping stone” habitats for
C. loncholepis
between the Guadalupe Dunes and Santa Maria River areas, and between the formerly occupied San Antonio Creek and Santa Ynez River areas.

Comment 2
: All of the peer reviewers commented that the proposed designation of critical habitat uses the best available scientific information to develop the best possible habitat design to prevent extinction of the species and indicated that it was an exhaustive presentation of the facts supporting revisions to critical habitat for
Cirsium loncholepis
. They concurred that the current range of
C. loncholepis
is not sufficient to ensure (or even make likely) the continued existence of the species and that the inclusion of unoccupied habitat in the proposed critical habitat designation was justified scientifically. They concurred that all proposed units are important for recovery: Units 1 and 2 are occupied; Unit 3 was occupied, has important recovery potential, and serves as an extremely important area to connect multiple populations to reduce extinction risk for the species; and Units 4, 5, and 6 complete these linkages and have high recovery potential for the species.

Our Response
: The peer reviewers confirmed the importance of the areas that we identified as containing features essential to the conservation of the species and consequently delineated as critical habitat. Additionally, we added details and supplemental information about
Cirsium loncholepis
, and special management needs provided by the peer reviewers, in the Special Management Considerations or Protection, Primary Constituent Elements, and Final Critical Habitat Designation sections of this rule.

Comment 3
: Several peer reviewers had comments and provided additional information regarding (1) the importance of long-distance dispersal for this species in relation to habitat fragmentation, (2) the layout of critical habitat boundaries, (3) the PCEs, and (4) the importance of conserving the long-distance dispersal vectors within and between the critical habitat units (and suitable habitat patches) for the conservation of the species. There was a consensus among the peer reviewers that habitat fragmentation increases the threats to a species, and that it increases the risk of extirpation and extinction events. They discussed that the best way to conserve species affected by habitat fragmentation is to increase the total size of available habitat or connect remaining available habitat with habitat linkages. They further discussed that reconnections (of available and suitable habitat) can ameliorate the threats associated with small population sizes by promoting dispersal and geneflow.

Our Response
: We appreciate the peer reviewers' comments and information regarding long-distance dispersal and
Cirsium loncholepis
, and we have considered the peer reviewers' comments and recommendations regarding habitat fragmentation, connectivity, and long-distance dispersal in the development of this final revised critical habitat designation. We have incorporated them into the rule under the section entitled Primary Constituent Elements.

Comment 4
: One peer reviewer mentioned that the County of Santa Barbara requires a minimum 100-foot riparian buffer along creeks in rural areas, which includes agriculture, and that pulling back agriculture to create this minimum buffer could make conditions favorable for
Cirsium loncholepis
along riparian areas in the critical habitat units designated in Santa Barbara County.

Our Response
: We thank the reviewer for this information. We checked with the County of Santa Barbara (Mashore 2009a, unpaginated, 2009b, unpaginated; Mooney 2009, unpaginated) and were informed that the County's Coastal Land Use Plan (Policy 9-37; also cross-referenced in Sec. 35-97.19 of the County's Coastal Ordinance) pertains to review of documents under the California Environmental Quality Act and states:

The minimum buffer strip for streams in rural areas shall be presumptively 100 feet, and for streams in urban areas, 50 feet. These minimum buffers may be adjusted upward or downward on a case-by-case basis. The buffer shall be established based on an investigation of the following factors and after consultation with the California Department of Fish and Game and California Regional Water Quality Control Board in order to protect the biological productivity and water quality of streams: a.) soil type and stability of stream corridors, b.) how surface water filters into the ground, c.) slope of land on either side of the stream, and d.) location of the 100-year

flood plain boundary. Riparian vegetation shall be protected and shall be included in the buffer. Where riparian vegetation has previously been removed, except for channelization, the buffer shall allow for the re-establishment of riparian vegetation to its prior extent to the greatest degree possible.

We concur that pulling back the footprint of areas utilized for agricultural production to create this minimum buffer could make conditions favorable for
Cirsium loncholepis
along riparian areas in Santa Barbara County. We will continue to work closely with the County of Santa Barbara and landowners in these areas to provide for the conservation of
C. loncholepis
.

Comment 5
: One peer reviewer mentioned that there may be areas of active row crop agriculture within the boundaries of proposed critical habitat in Unit 3 and that we should check to avoid their inclusion in critical habitat.

Our Response
: We acknowledge that there may be areas with active row crops in Unit 3 (and other critical habitat units). When determining the revisions to critical habitat boundaries within this final rule, we made every effort to avoid including developed areas, such as buildings, paved areas, and other structures, as well as tilled fields and row crops that lack the PCEs for
Cirsium loncholepis
in the appropriate quantity and spatial arrangement essential to the conservation of the species. We identified critical habitat for this species based on several criteria. Application of these criteria (please see the Criteria Used To Identify Critical Habitat section of this final rule) resulted in the determination of the physical and biological features that are essential to the conservation of this species, as identified by the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the species. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. Any such lands inadvertently left inside critical habitat boundaries shown on the maps of this final critical habitat are excluded by text in this rule and are not designated as critical habitat (please see Criteria Used To Identify Critical Habitat and Final Critical Habitat Designation sections and the unit description and map for Unit 3 in this final rule).

Comment 6
: One peer reviewer commented regarding the occupancy status of the Cañada de las Flores Unit. The commenter noted that we considered it to be unoccupied in the proposed revised designation, that the species was last observed in this unit in 1989, that the surveys in 1990 were conducted during a drought year, that the surveys in 2007 were conducted at a bad time of year, and that no sufficient surveys have been conducted here for 17 years. The commenter reasoned that because of the above information and the lack of surveys over a 17-year span, it seemed contradictory to consider this unit unoccupied.

Our Response
: Although the last herbarium specimen of this population was collected in 1973 (Consortium of California Herbaria (CCH) 2008, unpaginated), and it was last recorded (by photograph) in 1987 (Thornton 2008, unpaginated), Hendrickson (1990, pp. 1-25) notes that in 1990, Jeanette Sainz reported that at CaCañadantilde;ada de las Flores
Cirsium loncholepis
plants “...fluctuate every year; however, she has never known them to be absent completely as we found this year.” Based on this information, we concluded that at the time of listing in 2000, Unit 3, Cañada de las Flores was occupied by
C. loncholepis
. We reached the same conclusion when we designated critical habitat in 2004. We revisited this population with Jeanette Sainz in November 2007. No
C. loncholepis
plants were observed, some habitat conditions at the site have declined due to grazing intensity, but the basic suitable habitat conditions are still present (e.g., freshwater seeps and native vegetation) (Elvin 2007a, unpaginated). Based on one peer reviewer comment and a public comment regarding the occupancy status of Cañada de las Flores, we requested permission to visit the site in 2008 during the blooming season for this species to try to obtain more data regarding the occupancy status of this site; however, we were not able to obtain permission from the current owner. The owner had biologists conduct surveys in March of 2009, with no
C. loncholepis
being observed (Kisner 2009, unpaginated). Therefore, the best scientific and commercial data available indicate that this site was last documented as occupied in 1987 (Thornton 2008, unpaginated) and last reported in 1989 (Hendrickson 1990, pp. 1-25). Therefore, based on the continued lack of observation of
C. loncholepis
since 1989 (Hendrickson 1990, pp. 1-25; 65 FR 14888, March 20, 2000; CNDDB 2007, unpaginated; Elvin 2007b, unpaginated; CCH 2008, unpaginated; Thornton 2008, unpaginated), we consider Cañada de las Flores to be unoccupied for the purposes of this rule.

Comment 7
: One peer reviewer strongly suggested that additional management actions be undertaken for the species, specifically that the species be reintroduced into the unoccupied Units 3, 4, 5, and 6.

Our Response
: We agree that the recommended additional management actions, specifically reintroducing the species into unoccupied areas with suitable habitat throughout the range of the species, would benefit the species and contribute to its conservation. While we do not develop management strategies as part of the process of designating critical habitat, we do consider site-specific management strategies important to the conservation of the species and work with landowners, researchers, and others to develop and implement them as part of the recovery process.

Comment 8
: One peer reviewer commented that historically it is likely that
Cirsium loncholepis
had a much broader distribution in (1) Los Alamos Valley, specifically along the broad floodplain of San Antonio Creek and in the numerous hillside seeps and sag ponds associated with the southeast-northwest trending fault line that created this valley, and (2) the rest of the San Antonio Creek floodplain (e.g., Barka Slough); therefore the reviewer suggested that we emphasize conservation efforts in these areas.

Our Response
: We concur that it is possible that
Cirsium loncholepis
was more widely distributed in the San Antonio Creek watershed. This is why we proposed the areas in Units 3 and 4 and why we are designating lands in these units as critical habitat for
C. loncholepis
. Please see the unit descriptions for Units 3 and 4 for a more indepth discussion of these areas.

Public Comments

Comment 9
: One commenter stated that we should not designate critical habitat for a weed.

Our Response
:
Cirsium loncholepis
is a rare and endangered native plant. It does not qualify under any criteria as a weed. There are some species within this thistle genus that are “weedy” in the sense of growing out of their native habitat; for instance, several species of thistle originally native to Europe have spread across North America. Other thistle species are native but “weedy” in the sense that they have the ability to spread aggressively.
Cirsium loncholepis
is not “weedy” in either sense, as it is native to a small area of central coastal California, and is not aggressive in colonizing new sites. It is federally listed as endangered, and we are

required under the Act to designate critical habitat for it.

Comment 10
: One commenter stated that the designation is based on incomplete data and should not go forward.

Our Response
: The Service's Policy on Information Standards Under the Endangered Species Act, published on July 1, 1994 (59 FR 34271), establishes procedures and provides guidance to ensure that decisions made by the Service represent the best scientific and commercial data available. We are required, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat. See the section of this rule titled Critical Habitat for additional information on these standards. The revised critical habitat designation presented in this rule is based upon the best scientific and commercial information available as required by the Act.

Comment 11
: One commenter stated that the rule does not justify designating active cropland in the Santa Maria Valley or urban lands in the Orcutt area, that it is illogical to designate critical habitat on intensely cultivated row crop farms in the western Santa Maria Valley, and that agricultural fields in the Santa Maria Valley do not meet the definition of critical habitat because they lack the PCEs.

Our Response
: We attempted to avoid designating agricultural land as much as possible because the PCEs are not present in the appropriate quantity and spatial arrangement essential to the conservation of the species in much of the actively farmed agricultural land. However, within the areas mapped that include agricultural fields, there are pockets of habitat that contain or support the PCEs and are essential to the conservation of the species (e.g., along the untilled margins of fields; along untilled, low-lying swales within fields; and in fields that are temporarily fallow). For example, there are pockets of suitable habitat along Orcutt Creek that contain “stepping stone” habitats in and adjacent to agricultural lands. These “stepping stone” habitats play an important role in the conservation of this species by providing corridors and intermediate sites with suitable habitats that act as an essential dispersal corridor (along which the species can disperse from coastal sites to other suitable sites farther inland) (Damschen 2008; Trakhtenbrot 2008). Therefore, these areas are essential to the conservation of the species. Some areas within agricultural lands are not essential because they do not contain the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the species. We made every effort to exclude as many areas as possible that do not meet the definition of critical habitat, but were not able to exclude all of these areas due to the mapping scale utilized. Areas that are within the boundaries of critical habitat, but do not contain the PCEs in the appropriate quantity and spatial arrangement essential to the conservation of the species, are excluded by text in this revision and are not designated as critical habitat (please see the Criteria Used To Identify Critical Habitat and Final Critical Habitat Designation sections and the unit description and map for Unit 2 in this final rule).

Comment 12
: One commenter stated that the Service makes the assumption that Orcutt Creek is not impacted by existing urban and agricultural uses and does not account for the fact that Orcutt Creek and other streams are fully impeded to downstream flows and are affected by other threats (e.g., County zoning may permit development within the floodplain with minimal setbacks from creeks, non-point source pollution runoff from agriculture (herbicides, fertilizers) and urban areas, flood control measures).

Our Response
: We do not assume that the entire stretch of Orcutt Creek, the Santa Maria River, and their associated watersheds are not impacted by existing uses. We are aware that the watersheds have been adversely affected by urban and agricultural practices and we thank the commenter for pointing out additional threats of which we were not aware to the species. We have included this new information in the Special Management Considerations or Protection and Final Critical Habitat Designation sections of this rule. We believe that the Orcutt Creek area is essential to the conservation of the species because it contains pockets of suitable habitat that act as “stepping stone” habitats and are an essential dispersal corridor. For additional information on this topic, please see Comments 5 and 11 and our responses to them.

Comment 13
: Three commenters did not feel that we presented sufficient justification to propose unoccupied habitat, specifically areas in Unit 1 and Unit 3, and that it was the intent of Congress to limit the designation of critical habitat to occupied areas, except in unusual circumstances.

Our Response
: The Act specifically provides that the Service may designate as critical habitat areas outside of the geographical area occupied by a species at the time it was listed if we determine that those areas are essential for the conservation of the species (section 3(5)(A)(ii) of the Act). By regulation, 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)).

The commenters included some supplemental information regarding their statements that unoccupied areas are not essential for the recovery of
Cirsium loncholepis
. Multiple peer reviewers commented that unoccupied areas were essential to the conservation of the species and that it was scientifically sound and justified to designate these areas as critical habitat. After analyzing this supplemental information, we determined that the current range of the species is not sufficient to ensure its conservation and that unoccupied areas (both within and outside the current range of the species) are essential for its conservation. For additional information on this issue, please see Comment 2 and our response to it.

Comment 14
: One commenter stated that Unit 3 has different environmental conditions than other units in the following ways: it does not contain PCEs; it is not occupied (because 1987 was the last time that plants were seen); we did not describe why or how Unit 3 is necessary to ensure connectivity in a manner that is “essential” for the conservation of the species; in Unit 3 “...only a very few Thistle plants have ever been found and only a very small percentage of Unit 3 contains the [PCEs] for the Thistle...”; and we did not cite any specific data, studies, or other evidence that demonstrate that Unit 3 is essential for establishing connectivity with areas occupied by
Cirsium loncholepis
and for preserving genetic variability within the species. Therefore it is impossible for the public to generate meaningful comments. One commenter objected to the inclusion of Unit 3.

Our Response
: We believe that the final revised designation for
Cirsium loncholepis
accurately contains all specific areas meeting the definition of critical habitat for this species. As discussed in the Criteria Used to Identify Critical Habitat section of the proposed revised designation and this final revised designation, we delineated proposed revised critical habitat for
C. loncholepis
using the following criteria:

(1) Areas occupied by individuals at the time of listing and areas currently occupied by this species;

(2) Habitat providing connectivity between the areas containing the extant populations;

(3) Areas outside the geographical area occupied by the species at the time of listing, but within the historical range of the species, that contain large, continuous blocks of suitable habitat, such as the numerous mesic areas and seeps in and surrounding the lower reaches of the Santa Ynez River;

(4) Important corridors of suitable habitat that connect the large, continuous areas based on seed or pollen dispersal abilities in those corridors, such as the areas along Orcutt Creek between the Guadalupe Dunes and Cañada de las Flores; and

(5) The presence and characteristics of other features that are important to maintain the metapopulation dynamics for
C. loncholepis
in the areas listed in (1) through (4) above (e.g., winds and their relationship to the formation of geographic features, movement patterns for various dispersal agents, watersheds, geology).

Application of these criteria captures the physical and biological features that are essential to the conservation of this species, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement. Thus, not all areas supporting the identified PCEs will meet the definition of critical habitat. The criteria we used resulted in a critical habitat designation that is representative of the diversity in this species' range and includes both occupied and unoccupied habitat. Some previously occupied areas (such as Cañada de las Flores) may have once represented core populations for this species, but due to its precipitous decline (as discussed in the Primary Constituent Elements section of this rule), we have determined that these areas are still essential for the conservation of this species. We also made a determination that modifications to the critical habitat boundaries in Unit 3 were not warranted.

Data used in the preparation of this final revised designation also indicate that the basic habitat conditions are still present in Unit 3 (e.g., freshwater seeps and native vegetation). Unit 3 occurs at a pivotal location for the species as a whole; it is down-wind from
Cirsium loncholepis
populations in the Santa Maria Valley and areas on San Antonio Terrace (Hunt 2008, unpaginated) and upstream from populations in the San Antonio Valley (e.g., the mouth of San Antonio Creek (one of the potential type locality sites for
C. loncholepis
) and San Antonio Terrace Dunes). The Cañada de las Flores location is essential to maintain connectivity between populations in the Santa Maria Valley and populations in the San Antonio Creek and Santa Ynez Valleys and contains habitat for a core population area. The areas in question meet our criteria used to identify critical habitat (for additional information, please see the Criteria Used to Identify Critical Habitat section below).

Comment 15
: One commenter stated that 50 percent of the proposed critical habitat in Unit 3 is already covered by currently designated critical habitat for California tiger salamander; therefore, because the area is already protected and requires consultation under the Act, this rule is redundant.

Our Response
: The Act directs us to analyze and determine which areas are essential to the conservation of each species. We analyzed the areas that we determined were essential for
Cirsium loncholepis
in this rule. While there may be overlap in critical habitat boundaries for different species, in this case, the PCEs (and essential habitat components) are different for
C. loncholepis
than they are for California tiger salamander. Therefore the critical habitat determination for California tiger salamander does not describe the same habitat and it does not offer the same protections as the designation of critical habitat for
C. loncholepis
.

Comment 16
: One commenter stated that the adoption of the proposed critical habitat rule is subject to compliance with National Environmental Policy Act (NEPA). The Service must comply with NEPA in designating critical habitat as per the Tenth Circuit Court decision (
Catron County Bd. Of Comm'r, N.M.
v.
USFWS
, 75 F.3d 1429).

Our Response
: It is our position that, outside the jurisdiction of the Tenth Circuit Court of Appeals, 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 Ninth Circuit Court of Appeals (
Douglas County
v.
Babbitt
, 48 F.3d 1495 (9th Cir. 1995), cert. denied, 516 U.S. 1042 (1996)).

Comment 17
: Two 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 species, or otherwise do not meet the definition of critical habitat.

Our Response
: Where site-specific information was submitted to us during the comment periods for this revised designation 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 under to section 3(5)(A) of the Act. This rule notes that there are areas within the boundaries of designated critical habitat that do not contain those biological features essential for the conservation of the species (e.g., roads, buildings, and other areas that do not contain PCEs) and these specific areas are not included in designated critical habitat by text provided in this rule even though they appear to be within the boundaries of designated critical habitat. Please see the individual unit descriptions for discussions of the PCEs and where the unit is occupied by the species.

For additional information regarding Unit 3, please see Comment 14 and our response to it. For additional information regarding Unit 1 and areas in the OHV area of ODSVRA, please see Comment 18 and our response to it and the unit description for Unit 1.

Comment 18
: One commenter stated that the Service previously excluded the heavily-used off-highway vehicle (OHV) riding areas within the Oceano Dunes State Vehicular Recreation Area (ODSVRA) in the 2004 final critical habitat designation because the area is not essential for the conservation of
Cirsium loncholepis
. Two commenters objected to the inclusion in proposed critical habitat Unit 1 of large areas on State Park lands within the ODSVRA in proposed critical habitat Unit 1 that are used for OHV recreation on a regular basis.

Our Response
: We acknowledge that these areas were not included in the 2004 final rule, but the best available science at that time indicated that
Cirsium loncholepis
was still extant at a number of locations throughout its range. Current information indicates that the species has experienced severe declines in the number of populations, occurrences, and individuals such that areas beyond the species' currently occupied range are essential for its conservation. In the process of analyzing what constitutes critical habitat for the species during this revision, we determined that certain areas within the OHV area met the definition of critical habitat.

In this final revised designation of critical habitat, we have included polygons of critical habitat that contain vegetation that occur and are fenced off

within the OHV riding area of ODSVRA because they are essential to the conservation of the species. The polygons contain habitat patches, including open sand dune swales and vegetation islands. In identifying the areas designated as final revised critical habitat, we delineated the boundaries based on the best available science, with the understanding that this is a dynamic ecosystem, and it has been documented that these vegetation islands move over time (California Geological Society (CGS) 2007, 113 pp.). The habitat patches move up to 120 meters (m) (394 feet (ft)) over a 20-year time frame (CGS 2007, 113 pp.); therefore, we developed a formula to determine the predicted migration of these patches over the next 20 years. For a description of this formula, please see the Criteria Used to Identify Critical Habitat section of this rule.

Following our evaluation of the information provided, we made a determination that modifications to the critical habitat boundaries were warranted in parts of Unit 1. The areas within the habitat patches (including vegetation islands and open sand dune swales) containing PCEs in the appropriate quantity and spatial arrangement necessary to provide the features essential to the conservation of
Cirsium loncholepis
are essential. Therefore, under this rule, we are designating them as critical habitat. However, the areas within the boundaries of these polygons that are outside of the habitat patches (but within the OHV riding area of ODSVRA) and are used on a regular basis for OHV recreation do not currently contain PCEs in the appropriate quantity and spatial arrangement necessary to provide the features essential to the conservation of
C. loncholepis
. We are designating these areas as critical habitat because the vegetation islands will migrate beyond their current boundaries in the foreseeable future, and thus the areas are essential for the conservation of
C. loncholepis
.

These polygons of critical habitat contain suitable habitat and are adjacent to currently occupied and historically occupied sites. The polygons are northwest of a large continuous block of occupied habitat. The Callender Dunes are dominated by moderate to strong winds from the northwest (categorized as greater than 7.47 miles per hour (mph) (12.02 kilometers per hour (kph)) most of the time and throughout the year (U.S. Department of Agriculture Natural Resources Conservation Service (USDA NRCS) 2008, unpaginated; National Oceanic and Atmospheric Administration Western Regional Climate Center (NOAA) 2007, unpaginated). However, moderate to strong winds from the southeast also occur in this area during parts of the year (November through February), which overlaps with at least 2 months of the approximately 5-month period that seeds are dispersed from the remains of the flowering stalk (August through December). These winds are an essential dispersal vector that helps move
Cirsium loncholepis
seeds between areas of suitable habitat; as a result, the vegetated islands become essential in maintaining connectivity within and between occurrences and populations. Further, several peer reviewers indicated that for fugitive species (i.e., species that move from place to place through time) like
C. loncholepis
that also rely on long-distance dispersal, adjacent occupied and unoccupied suitable habitat is essential for survival. These vegetation islands meet this need for the species, and provide a shifting mosaic of habitats that depend upon geomorphic processes operating across large landscape areas for their maintenance.

In the proposed revised designation, we proposed 714 ac (290 ha) within the OHV area of ODSVRA. In this final rule, we have reduced the number of acres within the OHV area of ODSVRA to 75 ac (30 ha) that are included in critical habitat Unit 1 because we determined that areas with a long-standing history of heavy OHV use did not contain the PCEs in the appropriate quantity and spatial arrangement (see our response to Comment 20). We made every effort to include the essential vegetated island habitats and the areas that they are expected to migrate to in the foreseeable future based on a recent analysis of historical movements of these habitats in the ODSVRA and the geomorphology of the Callender Dunes (CGS 2007, 113 pp.; Cooper 1967, pp. 75-90; Hunt 1993, pp. 5-72; USDA NRCS 2008, unpaginated).

Comment 19
: Two commenters discussed the ODSVRA's preparation of an habitat conservation plan (HCP) and concluded that the completion of the HCP will make the critical habitat rule superfluous and unnecessary, as the Service excludes areas if they do not need special management. Therefore, because the species will be addressed in the soon-to-be-released draft HCP for ODSRVA, no special management will be needed in any of the proposed critical habitat areas within ODSVRA.

Our Response
: In considering the benefits of including lands in a designation that are covered by a proposed or 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. These criteria are discussed in the Application of Section 4(b)(2) of the Act section below.

Because the HCP under development for the ODSVRA is still in draft form, there is uncertainty concerning what actions may be proposed or committed to for conservation of the species, and there is uncertainty concerning whether any actions proposed will be effective. Accordingly, the draft HCP does not currently meet the criteria necessary for us to exclude these areas on the basis of the HCP under section 4(b)(2) of the Act.

Comment 20
: The California Department of Parks and Recreation (CDPR) requested that we exclude from critical habitat 820 acres of lands they manage (in and adjacent to the OHV area) at the ODSVRA. They requested that even if the lands in ODSVRA can be considered critical habitat, the Service exclude them under section 4(b)(2) of the Act for the following reasons:

(1) There is a long-standing history of OHV use of Oceano Dunes;

(2) The State law that established ODSVRA mandated the area be used for OHV recreation;

(3) Critical habitat is not needed because CDPR has a rare plant protection program in place to manage populations within ODSVRA and if
Cirsium loncholepis
is found there in the future, those plants would be protected as part of the rare plant protection program; and

(4) Economic impacts need to be considered, and they outweigh the benefits of inclusion of this area.

Our Response
: We analyzed the entire area within ODSVRA that was proposed as critical habitat in the proposed revised critical habitat designation. We determined that approximately 639 ac (259 ha) of the 714 ac proposed as critical habitat do not contain the PCEs in the appropriate quantity and spatial arrangement that are essential for the conservation of the species. We are not designating as critical habitat these approximately 639 ac. Regarding the four points outlined in the CDPR comment letter (Zilke 2008):

(1) The Act directs us to analyze areas essential to the conservation of the species, and section 4(b)(2) of the Act states that the Secretary may exclude any area if he determines that the benefits of exclusion outweigh the benefits of specifying an area as critical habitat, unless he determines, based on the best scientific and commercial data available, that failure to designate such

area as critical habitat will result in the extinction of the species concerned. We analyzed the benefits of exclusion and the benefits of inclusion, and determined that some of the areas within ODSVRA were essential to the conservation of the species (see the unit description for Unit 1 and the map for Unit 1). Some of the areas within ODSVRA do not contain PCEs in the appropriate quantity and spatial arrangement that are essential for the conservation of the species. In designating those areas we determined to be essential to the conservation of the species, we made every effort to avoid those areas that do not contain the physical and biological features in the appropriate quantity and spatial arrangement. We determined that areas with a long-standing history of heavy OHV use did not contain the PCEs in the appropriate quantity and spatial arrangement (see our response to Comment 18).

(2) We further determined that these areas, as designated, do not contradict the State law that established ODSVRA mandating the area be used for OHV recreation (see our responses to Comments 17 and 18 and our description of these areas in the unit description).

(3) In considering whether to exclude an area from designation as critical habitat on the basis of a management plan (or rare plant protection program), 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.

These factors include: (A) Whether the plan is complete and provides protection from destruction or adverse modification; (B) 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 (C) whether the plan provides conservation strategies and measures consistent with currently accepted principles of conservation biology. The CDPR has not provided us with a management plan that meets all of those conditions necessary for us to exclude these areas from the designation.

(4) We analyzed the benefits of exclusion and the benefits of inclusion of the remaining approximately 75 ac (30 ha) in the OHV area of ODSVRA. We determined that the remaining approximately 75 ac (30 ha) are essential to the conservation of the species, and the benefits of exclusion do not outweigh the benefits of inclusion. Accordingly, we are designating these approximately 75 ac (30 ha) as critical habitat.

See our responses to Comments 17 and 18 and the following sections for a more indepth discussion of these issues: Criteria Used To Identify Critical Habitat, the unit description for Unit 1, and Relationship of Critical Habitat to Lands Managed by the California Department of Parks and Recreation (CDPR).

Comment 21
: One commenter, citing case decisions, stated a general comment that the Service's position that an area does not need special management where another conservation plan is in place is both illogical and legally invalid and the
Cirsium loncholepis
habitat within the boundaries of any conservation plan also meets the definition of critical habitat precisely because it requires the special management purportedly provided by the conservation plans.

Our Response
: The comment references a former Service interpretation as to the interrelationship of existing conservation plans with the definition of critical habitat in the Act. The definition states, in part, that “critical habitat” means (i) the specific areas within the geographical area occupied by a species, at the time it is listed in accordance with the Act, on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection (section 3(5)(A)(i) of the Act). Thus in determining critical habitat for an area occupied by the species at the time of listing, the Service looks at whether the physical or biological features of the area are both essential to the conservation of the species and may require special management considerations or protections. The commenter suggests that habitat within the boundaries of any conservation plan meets the definition of critical habitat. For that to be true, such an area must also have the physical and biological features essential to the conservation of the species to be considered critical habitat. The Service did not, in the proposed revised designation, suggest that areas with existing special management would not meet the definition of critical habitat. However, areas subject to a conservation plan and thus subject to special management, may be considered for exclusion from the critical habitat designation if the plan meets certain criteria (see the Application of Section 4(b)(2) of the Act section below for a discussion of these criteria).

Comment 22
: Two commenters were concerned that new PCEs were included that do not require a water source, that these PCEs and areas without water or a water source are not essential, and that the description of PCE 4 is “insufficiently specific” and includes every drainage within the region.

Our Response
: Each PCE and area proposed for designation as critical habitat can be essential for a different reason or a different part of the plant's life cycle. The dispersal of genetic material among and between populations is essential for the conservation and recovery of this species (see our response to Comment 3) and is covered by PCE 4, which includes dispersal by both wind and water. Water is not essential to disperse the plant's seeds by wind, but dispersal by wind is essential for the conservation and recovery of the species. Also, the plant does grow and has been documented in areas that are “dry,” such as on the top of ridges in the Guadalupe Oil Fields to the south of the Guadalupe-Nipomo Dunes National Wildlife Refuge. We believe the word drainage is adequately specific, as it eliminates many upland and dry areas. Drainages within the boundaries of the revised critical habitat designation all contain suitable habitat and are important dispersal features, which are what we focused on in developing the revised critical habitat designation for this species. Drainages outside the boundaries of critical habitat, but within the region, may be important, but we are not designating them as critical habitat.

Comment 23
: One commenter stated that the only effective measure to ensure the recovery of the species (
Cirsium loncholepis
) in agricultural and urban areas is to preclude agricultural practices and production and urban development and that this constitutes a “taking” of private property; another commenter asked us to hold off interference in the private sector, stating that designating critical habitat [for
C. loncholepis
] will interfere with agriculture to feed all of the people.

Our Response
: Critical habitat has a direct regulatory impact only on Federal actions or actions requiring Federal authorization, permitting, or funding. Therefore, a critical habitat designation on private land has no regulatory impact on actions carried out by landowners unless they seek Federal funding or a Federal permit to carry out those actions. For example, if landowners must obtain a permit from the U.S. Army Corps of Engineers (Corps) under section 404 of the Clean Water Act (33 U.S.C. 1251
et seq.
) to carry out an action on their land, the Corps must

consult with the Service under section 7 of the Act to evaluate the effects that the permitted activity may have on critical habitat. Even then, the designation may only have a substantial impact on the activity if it is likely to result in the destruction or adverse modification of the critical habitat. It is the responsibility of the Federal agency, not the private landowner, to initiate the consultation with the Service.

The Act prohibits Federal agencies from carrying out actions that would destroy or adversely modify critical habitat. A Federal action (e.g., row crop farming, urban construction) that is not likely to cause the destruction or adverse modification of
Cirsium loncholepis
habitat may not be materially affected by a critical habitat designation. Federal action agencies must evaluate the potential effects of each action on its own merits. If a Federal action would result in the destruction or adverse modification of
C. loncholepis
habitat, the Service would suggest reasonable and prudent alternatives to avoid the destruction or adverse modification of critical habitat.

The promulgation of a regulation does not take private property unless the regulation denies the property owners all economically beneficial or productive use of their land. Further, in accordance with Executive Order 12630 (Government Actions and Interference with Constitutionally Protected Private Property Rights), we analyzed the potential takings implications of designating critical habitat for
Cirsium loncholepis
in a takings implications assessment (TIA), which is available on request. The conclusion in the TIA was that the possibility for take of private property due to designation of critical habitat for
Cirsium loncholepis
is remote.

Comment 24
: One commenter stated that it is the Service's obligation under section 2(c) to “seek to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this Act” and section 7(a)(1) to conserve threatened and endangered species.

Our Response
: Section 4(a)(3) of the Act requires that critical habitat be designated for listed species. This rule meets our obligations under section 4(a)(3), which will help us accomplish our obligations under sections 2(c) and 7(a)(1). The designation of critical habitat for
Cirsium loncholepis
will not conflict with or prevent us from carrying out our obligations under sections 2(c) and 7(a)(1).

Comment 25
: One commenter stated that we should designate as critical habitat all habitat and lands proposed for designation pursuant to the Act and that we should issue no exemptions or exclusions.

Our Response
: We proposed to designate 38,447 ac (15,559 ha) as critical habitat in the proposed revised designation of critical habitat for
Cirsium loncholepis
(73 FR 45806). Of that total, we determined in this final revised designation that 37,810 ac (15,300 ha) meet the definition of critical habitat and are essential to the conservation of the species. We determined that some areas (approximately 639 ac (259 ha) within Unit 1) with a long-standing history of heavy OHV use did not contain the PCEs in the appropriate quantity and spatial arrangement and therefore were not essential to the conservation of the species and did not fit the definition of critical habitat (see our response to Comments 18 and 20). We are excluding 13,705 ac (5,546 ha) of Department of Defense (DOD) lands within the boundaries of Vandenberg Air Force Base (VAFB) under section 4(b)(2) of the Act based on potential impacts to national security. Because the Service is not an expert in military readiness, we defer to the expertise of the DOD in identifying specific credible military readiness or national security impacts. See the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) below for a more indepth discussion of this topic.

Comment 26
: Two commenters submitted duplicate requests for us to revise the boundaries of Unit 3 according to those recommended in a separate comment letter. The commenters stated that we should exclude upland, developed, and agriculture areas in Unit 3 because these areas provide poor habitat for potential
Cirsium loncholepis
plants and that this exclusion “...should not cause significant impacts to the thistle's recovery.” The commenters stated that the proposed revisions to the boundaries of Unit 3 were based only on PCEs 1 and 2 and acknowledged that “the Cañada de las Flores Unit (Unit 3) may potentially provide a key linkage between known [
C. loncholepis
] populations.”

Our Response
: We are directed by the Act to determine what areas are essential for the conservation of a species, not what areas are essential, but “...should not cause significant impacts to the [species'] recovery”. We state in the text that developed areas and agricultural fields that do not contain PCEs are not critical habitat. Information from J. Sainz (Elvin 2007a) contradicts some information presented in this comment; specifically, while she did state that
Cirsium loncholepis
primarily occurred at three places at Cañada de las Flores, she also stated that it historically occurred sporadically throughout the lowlands there, and not just at the three specific locations where it most commonly was found. Information received from peer reviewers indicate that a much larger area at Cañada de las Flores contains suitable habitat that at present, due to drought and overgrazing, appears less suitable (Hunt 2008). Hunt states that the entire valley floor in Cañada de las Flores floods in heavy rain years. We determined that the 740 ac (299 ha) at Cañada de las Flores meet the definition of critical habitat for
C. loncholepis
(see the unit description for Unit 3 in the Final Critical Habitat section below).

Comment 27
: One comment letter stated that DOD lands at VAFB must NOT [emphasis included in comment] be exempt from the requirements of the Act to protect
Cirsium loncholepis
in the 17,705 ac of wetland and dune areas on the “people's property” on VAFB. Another commenter stated that they believe that it is not a national security issue for VAFB to be exempted from “protecting the people's
Cirsium loncholepis
and its habitat.”

Our Response
: The DOD is not exempt from the Endangered Species Act, or from the designation of critical habitat. We determined that 14,151 ac (5,727 ha) of DOD lands meet the definition of critical habitat within the boundaries of VAFB. While DOD lands may not be designated as critical habitat if they are subject to an integrated natural resources management plan (INRMP) that is recognized by the Secretary to provide a benefit to the species (per section 4(a)(3)(B) of the Act), such a plan does not exist for DOD lands at VAFB. We are excluding 13,705 ac (5,546 ha) of DOD lands within the boundaries of VAFB under section 4(b)(2) of the Act based on potential impacts to national security. Please see our response to Comment 25 and the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) below for a more indepth discussion of this topic.

Federal Agency Comments

Comment 28
: The DOD requested that we exclude its lands at VAFB from our final revised critical habitat designation based on an exemption under section 4(a)(3)(B) of the Act for military installations with an INRMP. Section 4 of the Act was amended through the National Defense Authorization Act for 2004 (Public Law 108-136). Section

4(a)(3)(B) of the Act states the Secretary shall not designate as critical habitat any lands controlled by DOD that are subject to an INRMP, if the Secretary determines that such a plan provides a benefit to the species for which critical habitat is proposed.

Our Response
: The Sikes Act Improvement Act of 1997 (Sikes Act) requires each military installation that includes land and water suitable for the conservation and management of natural resources to complete, by November 17, 2001, an INRMP. An INRMP integrates implementation of the military mission of the installation with stewardship of the natural resources found there. Each INRMP includes an assessment of the ecological needs on the installation, including the need to provide for the conservation of listed species; a statement of goals and priorities; a detailed description of management actions to be implemented to provide for these ecological needs; and a monitoring and adaptive management plan. We consult with the military on the development and implementation of INRMPs for installations with listed species. Because the INRMP being prepared by DOD for VAFB is in draft form and will not be completed by the time this final revised critical habitat designation publishes in the
Federal Register
, we cannot determine if the INRMP provides a benefit to
Cirsium loncholepis.
Therefore, we cannot exempt DOD lands at VAFB on the basis of section 4(a)(3)(B) of the Act.

Comment 29
: The DOD further requested that we exclude its lands at VAFB based on section 4(b)(2) of the Act. They specifically discussed that national security would be impacted because a critical habitat designation would limit the amount of natural infrastructure (e.g., land, water, and air resources) that are needed to support military operations and training. DOD also stated that they believe the benefits of exclusion outweigh the benefits of inclusion and that exclusion of these lands would not result in extinction of
Cirsium loncholepis
. They included in the comment their own analysis of how they reached that conclusion, as follows: for potential benefits of designating critical habitat, they do not foresee any benefits, but instead stated that it would be more beneficial to designate critical habitat on lands where no proven, long-term conservation and management regime exists and where other Federal protections do not apply. They stated that designation of critical habitat will provide no additional benefit to
C. loncholepis
because:

(1) They are developing a draft conservation agreement for
Cirsium loncholepis
(also referred to by the DOD as the Draft Endangered Species Management Plan for La Graciosa Thistle (ESMP)) in cooperation with the Service that will ensure conservation measures are implemented;

(2) Other existing regulations, such as the National Environmental Policy Act (NEPA) and the Environmental Impact Analysis Process (part of U.S. Air Force Policy codified in 32 CFR 989), assure that appropriate conservation measures are undertaken for listed species and their habitat; and

(3) Limited resources could be better spent on implementation of management activities rather than additional unnecessary consultations.

Our Response
: Section 4(b)(2) of the Act 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 unless the exclusion will result in the extinction of the species. We believe that our criteria for proposing critical habitat captured all areas that meet the definition of critical habitat under section 3(5)(A) of the Act. Therefore, 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.

After determining the areas that meet the definition of critical habitat under section 3(5)(A) of the Act, we took into consideration the economic impact, any potential impacts on national security, and other relevant impacts of specifying any particular area as critical habitat for
Cirsium loncholepis
. In this final revised designation, we recognize that designating critical habitat on lands within VAFB may have an impact on national security. These impacts are described in detail in the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) 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. Upon weighing the specific benefits of inclusion against specific benefits of exclusion, we determined that the benefits of excluding all lands owned by DOD at VAFB (13,705 ac (5,546 ha) of the 14,151 ac (5,727 ha) within the boundaries of VAFB) outweigh the benefits of including these areas in the final critical habitat designation. Further, we determined that the exclusion of these areas will not result in the extinction of
C. loncholepis
. 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 important to national security versus the benefits of including these areas in a critical habitat designation.

We respond to the particular points that DOD raised as follows. With respect to their comment that designation of critical habitat is more beneficial on lands where no proven, long-term conservation and management regime exists and where other Federal protections do not apply, our response is that we are not charged with designating critical habitat where it would be “most beneficial” to the species, but rather on lands that meet the definition of critical habitat. Moreover, the comment implies that protections will be conferred by critical habitat designation in the absence of other federal protections. However, critical habitat in and of itself does not confer protection on lands that are designated, nor does it affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Designation of critical habitat only affects activities conducted, funded, or permitted by Federal agencies; non-Federal activities are not affected by the designation if they lack a Federal nexus. These impacts are described in detail in the section entitled Regulatory Flexibility Act (5 U.S.C. 601
et seq.
) near the end of this rule.

With respect to DOD's comment that there is a lack of benefit from designating critical habitat because they are developing an ESMP in cooperation with the Service that will ensure conservation measures are implemented, please see our response to Comment 30 below.

With respect to DOD's comment that other existing regulations, such as NEPA and the Environmental Impact Analysis Process, assure that appropriate conservation measures are undertaken for listed species and their habitat, our response is that we agree that other regulations and policies have the potential to contribute to the conservation of the species. However, in the absence of designated critical habitat in these particular areas, the existing regulations may not take into consideration the importance of these areas to the conservation of
Cirsium loncholepis.

Comment 30
: In a related comment, the DOD requested that we exclude its lands at VAFB under section 3(5)(A) of

the Act based on an ESMP that they have developed for
Cirsium loncholepis.

Our Response
: Section 3(5)(A) of the Act defines critical habitat as the specific areas within the geographic area occupied by the species, at the time it is listed, on which are found those physical and biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection. As noted in our response to Comment 21, the Service no longer considers that areas covered by an approved management plan for the species of concern do not meet the definition of critical habitat, and thus we do not exempt lands from the designation on this basis. However, if an area has an adequate conservation management plan that covers the species and provides for management sufficient to conserve the species, we may consider the area for exclusion from the critical habitat designation under section 4(b)(2) of the Act.

We are currently working with VAFB on the development of a management plan for
Cirsium loncholepis
that will meet the conditions described above. The ESMP for
C. loncholepis
at VAFB proposes that the base comply with Federal and State mandates for threatened and endangered species; conduct surveys and inventories for the presence of federally listed species; and protect and enhance existing populations and habitats of threatened and endangered species (assess status, develop long-term plans, and conduct actions for recovery). This plan is still in its formative stages with little detail. In its current state, it does not explicitly provide a conservation benefit to the species, reasonable assurances that the management plan will be implemented or reasonable assurances that the conservation effort will be effective. The plan thus does not meet our criteria for exclusion from the designation under section 4(b)(2) of the Act. Therefore, we are not excluding VAFB lands from the final critical habitat designation as requested under section 3(5)(A) of the Act or under section 4(b)(2) of the Act based on an ESMP for
C. loncholepis
. However, please see the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) below for a detailed discussion of our exclusion of VAFB lands for reasons of national security under section 4(b)(2) of the Act.

Comment 31
: The DOD made several comments regarding the likelihood of whether
Cirsium loncholepis
currently occurs or historically occurred on VAFB. They provided a recent document from Mulroy (in Linn 2008, unpaginated) indicating that collections made from San Antonio Terrace and cited in a survey report (Henningson
et al.
1980, pp. 19-119) were misidentified.

Our Response
: We appreciate receiving the additional report clarifying that the specimens of
Cirsium
from Mulroy were misidentified. However, other reports (Keil and Holland 1998, pp. 83-84; Oyler, Holland, and Keil 1995, 92 pp.) state that
Cirsium loncholepis
may have occurred near the mouth of San Antonio Creek beside San Antonio Terrace. While we may never know with absolute certainty whether
C. loncholepis
historically occurred on San Antonio Terrace, we identified these lands as meeting the definition of critical habitat because they contain the PCEs in the quantity and spatial arrangement essential for the conservation of the species.

Comment 32
: The DOD opined that the type locality for
C. loncholepis
, indicated as “La Graciosa” on the herbarium sheet, was more likely near Orcutt than the mouth of the San Antonio River.

Our Response
: At the time we prepared the previous critical habitat proposal in 2004, the best scientific information available at the time indicated that the type locality of “La Graciosa” was near Orcutt. However, in preparing for this revised final critical habitat designation, we were able to obtain a copy of Alice Eastwood's field notes (Eastwood 1906, unpaginated), and we also received additional information from Dieter Wilken at the Santa Barbara Botanic Garden (Wilken 2009a, unpaginated). Based on Alice Eastwood's description of the area and route taken (“July 2, '06, Road to Casmalia and sand dunes”), the associated species that she collected that day, and the additional information from Wilken, we believe that the type location for
Cirsium loncholepis
could be anywhere within a 10-mi (16-km) area centered around Casmalia that includes San Antonio Creek, the sand dunes of San Antonio Terrace to the southwest of Casmalia, the historical Lake Guadalupe, Orcutt Creek, and even the mouth of the Santa Maria River. The specimen was collected near Casmalia and sand dunes. We acknowledge that information regarding this collection and the specific location of “La Graciosa” are not sufficient to be conclusive, and that some of this information indicates that the type location could be near Orcutt or the other areas mentioned.

Comment 33
: The DOD commented that the high floodwaters along the Santa Ynez River in 1969 likely impacted and possibly extirpated the population of
Cirsium loncholepis
that occurred there. During this flood event, the river reached a stage of 7.4 m (24.2 ft) above normal flow height and reached a maximum discharge of 80,000 cubic ft/second (sec) (2,264 cubic m/sec).

Our Response
: Although we did not specifically mention the Santa Ynez River flood of 1969 in the proposed revised critical habitat designation, we did discuss floodplain dynamics, how we would expect a species such as
Cirsium loncholepis
to “wander” within an area of suitable habitat (e.g., a floodplain) over time, and how this was an important aspect in maintaining the dynamic ecosystem that this species requires. We have added reference to the 1969 flood to the Primary Constituent Elements section and in the Santa Ynez River Unit description in the Critical Habitat section of this rule.

Comment 34
: The DOD commented that VAFB operations do not constitute a long-term threat of destruction or adverse modification to suitable habitat.

Our Response
: When Federal agencies consult with the Service under section 7 of the Act, the Service makes the determination of whether activities will destroy or adversely modify critical habitat during the consultation process, after we have received all of the pertinent information regarding the subject activities. We analyze each project description and all of the associated conditions regarding a proposed activity before we can determine whether it might destroy or adversely modify critical habitat; to do so in advance of completing the necessary analysis of a specific action would be predecisional. Consequently, we cannot at this time determine the validity of the DOD's comment. However, we are excluding DOD lands at VAFB under section 4(b)(2) of the Act based on potential impacts to national security. Therefore, the question of whether DOD operations at VAFB might adversely modify critical habitat is moot.

Comment 35
: The DOD commented that VAFB consists of extensive tracts of undeveloped and encroachment-free property, and that these extensive tracts of undeveloped and encroachment-free property are essential for launch safety buffers and completion of the DOD mission at VAFB. They added that critical habitat could potentially negatively impact their mission capability and possibly introduce unnecessary constraints that degrade mission readiness by limiting DOD's flexibility to implement land use changes in support of the mission-related projects and programs at VAFB.

These negative impacts could include: (a) Closure of areas needed for development, (b) a reduction in the availability of operational land requirements for present and future needs, and (c) project delays resulting from unnecessary and possibly redundant administrative requirements.

Our Response
: We are excluding 13,705 ac (5,546 ha) of DOD lands within the boundaries of VAFB under section 4(b)(2) of the Act based on potential impacts to national security. Because the Service is not an expert in military readiness, we have deferred to DOD's expertise in identifying specific credible military readiness and national security impacts. Please see the section entitled Relationship of Critical Habitat to Lands Managed by the Department of Defense (DOD) below for a more indepth discussion of this topic.

Comments Related to the Draft Economic Analysis

Comment 36
: Proposed critical habitat does not consider the economic impacts of this rule on operations and recreational opportunities in ODSVRA.

Our Response
: The Service develops an analysis of economic impacts of the proposed critical habitat designation based on information presented in the proposed rule. Consequently, the draft economic analysis is made available after publication of the proposed critical habitat rule. For
Cirsium loncholepis
, we issued the Draft Economic Analysis (DEA) and made it available to the public for review and comment on March 10, 2009 (74 FR 10211). We analyzed the economic impacts to operations and recreational opportunities in ODSVRA in the Draft and subsequent Final Economic Analysis (FEA) and considered these impacts in the development of this final revised critical habitat designation.

Comment 37
: Critical habitat could result in significant delays to crucial visitor and management efforts for ODSVRA because “...securing Federal section 7 consultations could jeopardize projects, jeopardize project funding, and result in significant loss of recreational opportunities in Oceano Dunes SVRA.”

Our Response
: The Service is aware of and has considered the operations and visitor and management efforts for ODSVRA. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. 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 species. 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. We have not consulted on any projects within designated critical habitat for
Cirsium loncholepis
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. If a Federal nexus does exist and the Service makes a finding of destruction or adverse modification of critical habitat, 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. Therefore, we do not believe that designation of critical habitat within ODSVRA would result in a “significant loss of recreational opportunities” in ODSVRA.

Comment 38
: The proposed revised critical habitat rule for
Cirsium loncholepis
is not accompanied by an economic analysis. The Service should withdraw this proposed rule and publish a new one after completing and submitting the economic analysis for public comment.

Our Response
: The proposed rule did not contain an economic analysis. As is our usual practice because of the urgency of court orders, the proposed designation noted that we would announce the availability of the draft economic analysis at a later date and would at that time seek public review and comment on the draft economic analysis. We announced the availability of the draft economic analysis and reopened the comment period on the proposed revised critical habitat designation on March 10, 2009 (74 FR 10211). The comment period closed on April 9, 2009.

Comment 39
: The Service must perform a parcel by parcel [economic] analysis of all areas it proposes to include within critical habitat.

Our Response
: The economic analysis presents costs at the unit level, and where possible, by parcel. Calculating economic impacts at the parcel level is often not possible due to lack of readily available information on economic activities likely to be undertaken at those locations in the foreseeable future. If it is clear that a particular parcel may incur costs associated with the critical habitat designation, such as costs to a landowner within Unit 3, these have been included in the analysis.

Comment 40
: One commenter stated that the proposed rule fails to analyze economic impacts according to the Regulatory Flexibility Act.

Our Response
: We made available a DEA on March 10, 2009 (74 FR 10211), that addressed the economic impacts to several sectors, including agriculture and ranching, and businesses that support off-highway vehicle recreation. The DEA concluded that less than one agricultural entity per year is anticipated to be affected by the critical habitat designation. The DEA indicated that 85 percent of the businesses potentially providing services to OHV users are small, but that the total loss in spending affected by the designation is expected to be less than 0.5 percent. This determination was finalized in the final economic analysis (FEA) dated July 27, 2009. Therefore, we did analyze economic impacts in accordance with the Regulatory Flexibility Act.

Comment 41
: One commenter stated that the economic analysis must analyze and calculate all of the benefits of designating critical habitat; specifically, there are many additional benefits of critical habitat designation beyond just the conservation of habitat for the listed species. Critical habitat contributes to the survival and recovery of listed species, and the Service must analyze and calculate this contribution and that these values should be included in the economic analysis.

Our Response
: In the context of a critical habitat designation, the primary purpose of the rulemaking (i.e., the direct benefit) is to designate areas that contain the features that are essential to the conservation of listed species.

The designation of critical habitat may result in two distinct categories of benefits to society: (1) Use; and (2) non-use benefits. Use benefits are simply the social benefits that accrue from the physical use of a resource. Visiting critical habitat to see threatened or endangered species in their natural habitat would be a primary example. Non-use benefits, in contrast, represent welfare gains from “just knowing” that a particular listed species' natural habitat is being specially managed for

the survival and recovery of that species. Both use and non-use benefits may occur unaccompanied by any market transactions.

A primary reason for conducting this analysis is to provide information regarding the economic impacts associated with a proposed critical habitat designation. Section 4(b)(2) of the Act requires the Secretary to designate critical habitat based on the best scientific and commercial data available after taking into consideration the economic impact, and any other relevant impact, of specifying any particular area as critical habitat. Economic impacts can be both positive and negative and, by definition, are observable through market transactions.

Where data are available, the analysis attempts to recognize and measure 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.

Under Executive Order 12866, the Office of Management and Budget (OMB) directs Federal agencies to provide an assessment of both the social costs and benefits of proposed regulatory actions. 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 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 and recovery 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 the direct benefits of the proposed rule are best expressed in biological terms that can be weighed against the expected cost impacts of the rulemaking.

We have accordingly considered, in evaluating the benefits of excluding versus including specific areas, the biological benefits that may occur to a species from designation (see below, Exclusions Under Section 4(b)(2) of the Act), but these biological benefits are not addressed in the economic analysis (in terms of economic impacts). A chapter on benefits (Chapter 10) has been added to the FEA to highlight potential, qualitative benefits of the critical habitat designation for
Cirsium loncholepis
.

Comment 42
: Several commenters state that reducing OHV use in ODSVRA may result in benefits to non-OHV beach recreators and ecotourists, resulting in regional economic benefits. Several additional commenters express similar concerns about benefits to non-OHV recreators and the local economy. One commenter suggested that the OHV community causes a loss in revenue to the Pismo area and this loss was not captured in the DEA.

Our Response
: This critical habitat designation will not in and of itself result in closure of any OHV areas. The CDPR may decide to close portions of the riding area to OHV use of their own accord. Paragraph 161 of the DEA included a qualitative discussion of welfare gains associated with such potential closure of portions of the riding area to OHV use by the CDPR. Paragraph 161 states that “non-OHV recreators (e.g., beach-going recreators, hikers, wildlife enthusiasts) may experience benefits when this area is closed to OHV use.” In addition, a chapter on benefits (Chapter 10) has been added to the FEA to highlight potential categories of benefits resulting from the designation. This chapter includes discussion of potential benefits to non-OHV recreators at ODSVRA and ecotourists, and associated regional economic benefits.

Comment 43
: Several commenters state that costs associated with OHV use in the Oceano Dunes area were not considered in the DEA, and that the following should have been considered in the DEA: air pollution caused by ODSVRA is estimated to cost millions of dollars in health care, missed work and school, and premature death; the Central Valley paid $2 billion in health care due to particulate matter caused by OHV's breaking the dune crust and releasing larger amounts of particulate matter into the air. Further, additional police and safety personnel, infrastructure, and road repairs are needed because of the OHV community and traffic. In addition, noise and danger associated with OHV use may discourage people from visiting Oceano Dunes resulting in a loss to the regional economy.

Our Response
: Costs associated with OHV use would be reduced if OHV visitation declines due to the critical habitat designation. Thus, a reduction in these costs represents a benefit associated with the designation. Chapter 10 in the FEA includes a discussion of these potential benefits.

Comment 44
: Two commenters state that OHV users do not patronize Oceano Dunes area shops and other local businesses and therefore do not benefit the regional economy. They state that traffic counts from OHV users are deceptive and that the high rate of failed businesses in the area provides evidence of this lack of patronage.

Our Response
: The DEA estimates of changes in regional spending rely on the Cal Poly study, which surveyed OHV users about their spending habits while visiting ODSVRA. The survey questionnaire asked respondents explicitly to provide the amount of money spent in the Five Cities Area (including Pismo Beach, Arroyo Grande, Oceano, Grover Beach, and Shell Beach).

Comment 45
: One commenter stated the DEA incorrectly assumes that an environmental impact report (EIR) will [already] be required for any vineyard project proposed within Unit 3 due to the presence of the California tiger salamander, because it may one day be delisted, rendering the need for an EIR based on the California tiger salamander moot. Also, it is not certain that an EIR would be required to convert existing farmed areas to other agricultural uses. Therefore, the DEA should have assessed financial impacts of any regulatory documents required because of
Cirsium loncholepis
critical habitat alone.

Our Response
: We believe that the DEA made an accurate assessment of this situation because we consider all areas within 1.2 km of known, California tiger salamander breeding ponds as occupied. All of Unit 3 falls within the 1.2 km radius of known breeding ponds for California tiger salamander. The analysis in the DEA assumed the legal status of this species would remain unchanged in the future and therefore assumed that costs associated with preparing an EIR would be incurred in the baseline. A caveat was added in the FEA stating that if the California tiger salamander is delisted in the future, costs associated with preparing an EIR may be considered incremental instead of baseline.

Comment 46
: Three commenters stated that the DEA is flawed because it should have used and considered “an independent economic study such as the one by Dean Runyan on tourism” instead of “Economic Impact of Oceano Dunes SVRA Visitors” study by the California Polytechnic State University (CalPoly), which was funded by the OHV community, as the basis for the

$40 million upper-bound incremental impact estimate in the analysis and that the latter study “...incorrectly relied heavily on gasoline sales.”

Our Response
: The DEA high-end estimate of incremental costs of $39.6 million did not rely on the CalPoly study. The estimate included the cost of recreation-related conservation activities as well as costs associated with section 7 consultations in Guadalupe-Nipomo National Wildlife Refuge and section 7 consultations for development projects. The majority of the recreation-related economic impacts are associated with the lost welfare experienced by OHV users who may forego trips as a result of potential restrictions to portions of the riding area. This loss was estimated by multiplying the number of lost trips, based on the visitor attendance data provided by the California Department of Parks and Recreation, the size of potential closures, and the consumer surplus value of a trip. The consumer surplus value used is based on the average value from a study by Englin
et al.
(2003) and Jakus (2003) (see paragraphs 126 through 137 in the DEA for an explanation of the methods used).

The CalPoly study is used to provide the Service with information regarding the potential distributional effect of the rule. It is intended to provide information about the potential reduction in economic activity in San Luis Obispo County associated with a potential reduction in OHV trips.

The FEA notes that it is possible the potential magnitude of lost economic activity in the region may be overstated. As described in paragraphs 144, 174 through 176, and Exhibit 5-7 of the FEA, it is unclear whether the authors of the CalPoly study multiplied visitation data, which is presumed to be daily attendance, by per trip or per day expenditure values. We attempted to contact the study authors for clarification; however, the authors were unavailable. We continue to report the data presented by the authors because it represents the only recent survey of spending patterns that specifically targets OHV users at the OSDVRA.

Dean Runyan Associates conducts an annual study on “California Travel Impacts by County.” This study was considered, but does not focus specifically on, ODSVRA users. Furthermore, the study does not provide the detail necessary to enable a comparison of the results of Dean Runyan's work to the result of the study by CalPoly.

Comment 47
: One commenter stated that the DEA did not adequately quantify costs associated with delays due to local permitting requirements in direct response to the critical habitat designation.

Our Response
: The FEA quantifies these costs where the necessary data were available (see, for example, sections 6.3.2 and 7.4 of the FEA).

Comment 48
: One commenter stated that the DEA did not address future and potential oil and gas activities or agriculture and ranching activities in Unit 3 or attempt to quantify the impacts of the designation on these activities.

Our Response
: A discussion of future and potential oil and gas activities in Unit 3 has been added to the Oil and Gas Operations Chapter of the FEA. The primary landowner in that unit provided a schedule suggesting that his property can support up to 39 active wells and including the potential value of this resource. This information is reported in paragraph 236 of the FEA. However, at this time, he has not reactivated the retired wells, nor could he specify a date by which he would initiate oil and gas production activity.

The cost of project delay for one of the vineyard conversion projects in Unit 3 has been added to the final economic analysis (see paragraphs 219 through 221 and Exhibit 7-4). Detailed information was not provided for the other vineyard conversion project and thus the delay costs could not be quantified. Ranching in Unit 3 is not anticipated to be affected by the designation. (See response to Comment 45 for additional discussion of the potential for incremental costs associated with the vineyard conversion project in this unit where information was provided by the landowner.)

Comment 49
: One commenter states that previous economic analyses have overestimated the costs of the designation of critical habitat by ascribing coextensive costs to their designation. The commenter goes on to state that the Service must separate out all costs in the economic analysis that are attributable to listing alone, required by biological opinions, habitat conservation plans, State laws, or other regulatory measures, and that the costs associated with critical habitat must be considered alone.

Our Response
: This economic analysis considers the costs associated with critical habitat separate from those likely to occur under the baseline conditions, to the extent possible. Specifically, the economic analysis employs “without critical habitat” and “with critical habitat” scenarios. The “without critical habitat” scenario represents the baseline for the analysis, considering protections already accorded
Cirsium loncholepis
(e.g., under the Federal listing and other Federal, State, and local regulations). The “with critical habitat” scenario describes the incremental impacts associated specifically with the designation of critical habitat for the species. The incremental conservation efforts and associated impacts are those not expected to occur absent the designation of critical habitat for
C. loncholepis
. These impacts are summarized in the Executive Summary under “Summary of Incremental Impacts” and in Exhibit ES-4.

Comment 50
: One commenter states that the DEA fails to consider the critical habitat's potential role in leading to the closure of the entire ODSVRA to OHV riding and vehicular beach camping. The commenter states that if the county of San Luis Obispo retains ownership of La Grande Tract because the California Department of Parks and Recreation decides not to purchase the land in response to restrictions on OHV use resulting from the critical habitat designation, the county will likely follow its general plan provisions and ban OHV use. Closure of La Grande Tract to OHV use would leave only a narrow strip of land along the beach to provide access to the remainder of ODSVRA. Expansion of the closure of beach riding or vehicular access during all or part of the year to protect species such as the western snowy plover would effectively block access to the ODSVRA, requiring it to shut down to OHV riding.

Our Response
: We believe that the designation of critical habitat will not require closure of any additional OHV riding areas. We believe that the designation will not affect any area used by OHVs. The 5 percent figure included in the economic analysis is a high-end estimate of economic impacts based on possible voluntary actions that may be taken by CDPR in response to the designation. The possible voluntary actions could include: (1) CDPR decides to manage the 75 acres for
Cirsium loncholepis
and close the area to OHV use, or (2) in completion of their HCP, CDPR decides to close these areas to manage them for
Cirsium loncholepis
. Speculation regarding the outcome of current or future litigation concerning the La Grande tract is beyond the scope of the economic analysis. As a result, complete loss of OHV recreational opportunities is not considered to be a reasonably foreseeable outcome and therefore is not quantified in the report. A qualitative discussion of the policy issues surrounding the future use of La Grande Tract has been added to the FEA

(see paragraphs 125 through 127 of the FEA).

Comment 51
: One commenter states that the DEA failed to consider what impact designating critical habitat for
Cirsium loncholepis
may have on the pending litigation concerning ODSVRA. Pending litigation includes a suit brought by Friends of Oceano Dunes against the county challenging the jurisdiction of the county over land use at ODSVRA and a suit brought by the Sierra Club seeking to compel CDPR to stop OHV riding on La Grande Tract.

Our Response
: A qualitative discussion of the policy issues surrounding the future use of La Grande Tract has been added to the FEA (see paragraphs 122 through 127 of the FEA). Speculation regarding the outcome of current or future litigation concerning the La Grande tract is beyond the scope of the FEA.

Comment 52
: One commenter states that the DEA failed to adequately support its assumption that ODSVRA has only 1.3 million annual visitors. The commenter stated that annual visitation is 2.1 million, not 1.3 million, and that the DEA failed to obtain data from the CDPR on visitation and user patterns.

Our Response
: Exhibit 5-3 in the DEA presented monthly ODSVRA visitation data since 2002 provided by the CDPR. Total visitation to the park is expected to remain around two million for the next 20 years, but the DEA only considers impacts to visitors who are OHV users. The DEA assumes that 65 percent of visitors are OHV users, or 1.3 million OHV user visitors. This assumption is based on data provided by and personal communication with the CDPR.

Comment 53
: One commenter states that the DEA failed to quantify the cost of “internal” section 7 consultations within section 10 habitat conservation plans.

Our Response
: The DEA quantifies the cost associated with internal consultation under section 7 of the Act during section 10 deliberations with the CDPR for their incidental take permit. These costs are included in the baseline and the additional costs associated with addressing the adverse modification standard are included as incremental to the critical habitat designation. See sections 5.5.1 and 5.5.2 in the DEA for more detail.

Comment 54
: One commenter states that the DEA failed to adequately support its assumption that 5 percent of the riding area at ODSVRA would be closed due to the critical habitat designation for
Cirsium loncholepis
.

Our Response
: We believe that the designation of critical habitat will not require closure of any additional OHV riding areas. We believe that the designation will not affect any area used by OHVs. The 5 percent figure included in the economic analysis is a high-end estimate of economic impacts based on possible voluntary actions that may be taken by CDPR in response to the designation. The possible voluntary actions could include: (1) CDPR decides to manage the 75 acres for
Cirsium loncholepis
and close the area to OHV use, or (2) in completion of their HCP, CDPR decides to close these areas to manage them for
C. loncholepis
.

Summary of Changes From the Revised Proposed Rule and Previous Critical Habitat Designation

Table 1—Changes between the March 17, 2004, Critical Habitat Designation, the August 6, 2008, Proposed Designation, and this Final Revised Designation

Critical habitat unit in this final rule
County

2004 designation
of critical habitat
(69 FR 12553)

2008 proposed revision
to the critical habitat
designation
(73 FR 45806)

2009 final revised critical habitat designation

1. Callender-Guadalupe Dunes
San Luis Obispo

Included as part of Unit 1 (Pismo-Orcutt):
38,262 ac (15,484 ha)

Included as Unit 1:
10,329 ac (4,180 ha)

Included as Unit 1:
9,690 ac (3,921 ha)

2. Santa Maria River-Orcutt Creek

San Luis Obispo and
Santa Barbara

Included as part of Unit 1 (Pismo-Orcutt):
38,262 ac (15,484 ha)

Included as Unit 2: 13,227 ac (5,353 ha)
Included as Unit 2: 13,227 ac (5,353 ha)

3. Cañada de las Flores
Santa Barbara
Unit 2: 2,827 ac (1,144 ha)

Included as Unit 3:
740 ac (299 ha)

Included as Unit 3:
740 ac (299 ha)

4. San Antonio Creek
Santa Barbara
Not included

Included as Unit 4:
4,335 ac (1,754 ha)

Included as Unit 4:
185 ac (75 ha)

5. San Antonio Terrace
Santa Barbara
Not included

Included as Unit 5:
7,334 ac (2,968 ha)

Included as Unit 5:
52 ac (21 ha)

6. Santa Ynez River
Santa Barbara
Not included

Included as Unit 6:
2,482 ac (1,005 ha)

Included as Unit 6:
210 ac (85 ha)

Totals

41,089 ac (16,628 ha)

38,447 ac (15,559 ha)

24,103 ac (9,754 ha)

In preparing this final revised critical habitat designation for
Cirsium loncholepis
, we reviewed and considered comments from the public and peer reviewers on the proposed revised designation of critical habitat published on August 6, 2008 (73 FR 45806), and public comments on the draft economic analysis published on March 10, 2009 (74 FR 10211). As a result of all comments received on the revised proposed rule and the draft economic analysis, we made changes to our proposed revised designation, as follows:

(1) We revised the boundaries of critical habitat within the OHV area of the ODSVRA to only include polygons consisting of vegetated habitat patches. This resulted in a reduction of Unit 1 from 10,329 ac (4,180 ha) to 9,690 ac (3,921 ha), for a decrease of 639 ac (259 ha). The acreage change is reflected in Table 1.

(2) We excluded 4,151 ac (1,680 ha) of lands on VAFB that we had proposed in Unit 4 based on potential impacts to national security. We are designating approximately 185 ac (75 ha) of non-

DOD lands in Unit 4 as critical habitat. The acreage change is reflected in Table 1.

(3) We excluded 7,282 ac (2,947 ha) of lands on VAFB that we had proposed as Unit 5 based on potential impacts to national security. We are designating approximately 52 ac (21 ha) of non-DOD lands in Unit 5 as critical habitat. The acreage change is reflected in Table 1.

(4) We excluded 2,272 ac (919 ha) of lands on VAFB that we had proposed in Unit 6 based on potential impacts to national security. We are designating approximately 210 ac (85 ha) of non-DOD lands in Unit 6 as critical habitat. The acreage change is reflected in Table 1.

(5) We incorporated technical information provided by the peer reviewers.

With these noted exceptions, this final designation is unchanged from the proposed revised designation. The result of these changes has been the reduction of final revised critical habitat designated to 24,103 ac (9,754 ha); this represents a total reduction of 14,344 ac (5,804 ha) from what we proposed in 2008.

The areas identified in this revised critical habitat designation constitute a revision from the areas we designated as critical habitat for
Cirsium loncholepis
on March 17, 2004 (69 FR 12553). The main differences include the following:

(1) The 2004 critical habitat rule (69 FR 12553) consisted of 2 units comprising a total of 41,089 ac (16,628 ha). This revision includes 6 units comprising a total of 24,103 ac (9,754 ha). Three of the units in the revision are generally located in the same geographic locations as those from the previous designation. Unit 1 in the previous designation has been divided into two units, one consisting of the Callender-Guadalupe Dunes and one consisting of the Santa Maria River and Orcutt Creek. There has been an overall reduction of approximately 15,345 ac (6,210 ha) in these areas from the previous designation of critical habitat primarily due to the removal of large areas of agricultural lands that are used as row crops because these areas do not contain the physical and biological features that are essential to the conservation of this species, identified as the species' PCEs laid out in the appropriate quantity and spatial arrangement.

(2) The area in Unit 3 Cañada de las Flores (Unit 2 in the previous designation) has decreased from 2,827 ac (1,144 ha) to 740 ac (299 ha). Additionally, we now consider Unit 3 to be unoccupied because we do not have recent data that indicate
Cirsium loncholepis
still occurs in this unit. Plants were last reported here in 1987 and 1989 (see our response to Comment 6 above). While
C. loncholepis
may still be at Cañada de las Flores, we are considering it to be unoccupied for the purposes of this rule based on the continued lack of observation of
C. loncholepis
since 1987 (Thornton 2008, unpaginated).

(3) We included lands in three additional units of unoccupied habitat. Unit 4 contains 185 ac (75 ha) along San Antonio Creek, Unit 5 contains 52 ac (21 ha) through San Antonio Terrace, and Unit 6 contains 210 ac (85 ha) along the Santa Ynez River.

This represents a decrease of 16,986 ac (6,873 ha) from the previously designated critical habitat in 2004.

Critical Habitat

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) Which 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.

Conservation, as defined under section 3 of the Act, means the use of all methods and procedures that are necessary to bring any endangered or threatened species to the point at which the measures provided under the Act are no longer necessary. Such methods and procedures include, but are not limited to, all activities associated with scientific resources management such as research, census, law enforcement, habitat acquisition and maintenance, propagation, live trapping, transplantation, and in the extraordinary case where population pressures within a given ecosystem cannot otherwise be relieved, may include regulated taking.

Critical habitat receives protection under section 7(a)(2) 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. The designation of critical habitat does not affect land ownership or establish a refuge, wilderness, reserve, preserve, or other conservation area. Such designation does not allow the government or public to access private lands. Such designation does not require implementation of restoration, recovery, or enhancement measures by private landowners. Where a landowner requests Federal agency funding or authorization for an action that may affect a listed species or critical habitat, the consultation requirements of section 7(a)(2) would apply, but even in the event of a destruction or adverse modification finding, the landowner's obligation is not to restore or recover the species, but to implement reasonable and prudent alternatives to avoid destruction or adverse modification of critical habitat.

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

Section 4 of the Act requires that we designate critical habitat on the basis of the best scientific and commercial data available. Further, our Policy on Information Standards Under the Endangered Species Act (published in the
Federal Register
on July 1, 1994 (59 FR 34271)), the Information Quality Act (section 515 of the Treasury and General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)), and our associated Information Quality Guidelines provide criteria, establish procedures, and provide guidance to ensure that our decisions are based on the best scientific and commercial data available. They require our biologists, to the extent consistent with the Act and with the use of the best scientific and commercial data available, to use primary and original sources of information as the basis for recommendations to designate critical habitat.

When we are determining which areas should be designated as critical habitat,

our primary source of information is generally the information developed during the listing process for the species.

Additional information sources may include the recovery plan for the species, articles in peer-reviewed journals, conservation plans developed by States and counties, scientific status surveys and studies, biological assessments, or other unpublished materials and expert opinion or personal knowledge.

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

Areas that support populations, but are outside the critical habitat designation, will continue to be subject to conservation actions implemented under section 7(a)(1) of the Act. They are also subject to the regulatory protections afforded by section 9 of the Act and the section 7(a)(2) jeopardy standard, as determined on the basis of the best available scientific and commercial information at the time of the agency action. Federally funded or permitted projects affecting listed species outside their designated critical habitat areas may still result in jeopardy findings in some cases. Similarly, critical habitat designations made on the basis of the best available information at the time of designation will not control the direction and substance of future recovery plans, HCPs, or other species conservation planning efforts if information available at the time of these planning efforts calls for a different outcome.

Primary Constituent Elements (PCEs)

In accordance with section 3(5)(A)(i) of the Act and the regulations at 50 CFR 424.12, in determining which areas occupied by the species at the time of listing to designate as critical habitat, we consider those physical and biological features essential to the conservation of the species that may require special management considerations or protection. We consider the physical and biological features to be the PCEs laid out in the appropriate quantity and spatial arrangement essential to the conservation of the species. The PCEs include, but are not limited to:

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

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

(3) Cover or shelter;

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

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

We derive the PCEs required for
Cirsium loncholepis
from its biological needs as described below, in the proposed revised designation of critical habitat published in the
Federal Register
on August 6, 2008 (73 FR 45806), and in the NOA published in the
Federal Register
on March 10, 2009 (74 FR 10211). Additional information can also be found in the previous final listing rule published on March 20, 2000 (65 FR 14888), and in the original final critical habitat rule published on March 17, 2004 (69 FR 12553).

Space for individual and population growth

Cirsium loncholepis
generally grows in association with mesic areas on the margins of dune swales, dune lakes, marshes, estuaries, coastal meadows, seeps, springs, intermittent streams, creeks, and rivers (Elvin 2006, unpaginated, 2007a, unpaginated, 2007b, unpaginated; California Natural Diversity Database (CNDDB) 2007, unpaginated; CCH 2008, unpaginated).
Cirsium loncholepis
occurs in a series of dynamic systems of dunes and riparian floodplains.
Cirsium loncholepis
can appear and disappear from particular sites, appearing to “move” from place to place in areas with suitable habitat on a fairly regular basis (this has been observed several times over the past 50 or more years (Hendrickson 1990, pp. 1-25; Chesnut 1998a, unpaginated; CNDDB 2007, unpaginated; Kelch 2008, unpaginated)). New suitable sites are continuously created throughout the dynamic ecosystems where
C. loncholepis
grows over time (i.e., floods remove vegetation and create new sites; dunes move and suitable sites open up). The conservation of
C. loncholepis
depends not only on maintaining suitable sites for germination and growth as they exist at the present, but also on maintaining the dynamic nature of the habitat (the dune and riparian complexes) where it grows, which will ensure that suitable sites for germination and growth will develop in the future (Damschen 2008, unpaginated; Kelch 2008, unpaginated; McEachern 2008, unpaginated).

Nutritional and Physiological Requirements Including Soils, Communities, and Dispersal

Soils

Soils where
Cirsium loncholepis
are found are somewhat variable, but include a large component of sand. Coastal populations occur on dune sands, Oceano sands, Camarillo sandy loams, riverwash, and sandy alluvial soils at elevations of less than 100 ft (31 m) (Hendrickson 1990, pp. 1-25; CNDDB 2001, unpaginated, 2007, unpaginated). Occasionally, individuals have been found on dune slopes or ridges, rather than in the more typical dune swale habitat; more stable dunes have been shown to act as reservoirs of moisture, and these individuals may be tapping into this moisture (Thomas 2001, unpaginated). Plants at an inland population have been found on Camarillo sandy loam at an elevation of 600 ft (183 m) (CNDDB 2001, unpaginated).

Communities

The suitable sites adjacent to mesic areas that are important for
Cirsium loncholepis
generally occur within larger vegetation communities and associations.
Cirsium loncholepis
is most often associated with the following diverse vegetation communities: freshwater seeps and springs, coastal and valley freshwater marsh and fen, riparian scrub (e.g., mule fat scrub, willow scrub), riparian forest, intermittent streams, and other wetland communities, which are generally interspersed within larger associations of the following vegetation communities: central dune scrub, coastal dune, coastal scrub, chaparral, oak woodland (Hendrickson 1990, pp. 1-25; CNDDB 2007, unpaginated).
Cirsium loncholepis
is often growing in and amongst a mat of low-growing, herbaceous, wetland plants including
Juncus
spp. (rush),
Scirpus
spp. (tule),
Carex praegracilis
(sedge),
Distichlis spicata
(salt grass),
Cynodon dactylon
(Bermuda grass),
Trifolium wormskioldii
(clover),
Anemopsis californica
(yerba mansa),
Potentilla anserina
(silverweed), and
Lotus corniculatus
(birdfoot trefoil) (Reed 1988, pp. 15-51; Chesnut 1998b, pp. 1-40; Langford 2001, unpaginated; Elvin 2006, unpaginated, 2007b, unpaginated; CNDDB 2007, unpaginated). Other closely associated riparian plants include
Salix
spp. (willow),
Rubus
(blackberry), and
Baccharis douglasii
(Douglas' baccharis) (Reed 1988, pp. 15-51; Chesnut 1998b,

pp. 1-40; Elvin 2006, unpaginated, 2007a, unpaginated, 2007b, unpaginated; CNDDB 2007, unpaginated). Upland plants that occur adjacent to or nearby include
Toxicodendron diversilobum
(poison oak),
Baccharis pilularis
(coyote brush),
Solidago californica
(California goldenrod),
Isocoma menziesii
(coast goldenbush), and
Corethrogyne filaginifolia
(California aster) (Hendrickson 1990, pp. 1-25; Elvin 2006, unpaginated, 2007a, unpaginated, 2007b, unpaginated; CNDDB 2007, unpaginated). Plants at the most inland site for
C. loncholepis
have been found primarily around gently sloping hillside seeps within a grassland community, at the edge of willows around a seep bordering an oak woodland community (Hendrickson 1990, pp. 1-25, Elvin 2007a, unpaginated).
Cirsium loncholepis
does occasionally occur in non-mesic conditions such as on ridges or dune tops such as in the Guadalupe Dunes (Elvin 2006, unpaginated) or throughout meadows (temporally and spatially) on flat valley bottoms, which are rather dry compared to the mesic seeps in these area (Elvin 2007a, unpaginated).

Dispersal

Genetic material can move both within a population and between different populations. In plants this can be accomplished through the movement of pollen, seeds, plants, or plant parts to other plants or sites within the same population or to another population. For
Cirsium loncholepis
, the main agents for gene flow are pollen and seeds. Pollinators move pollen from one flower to another. Most pollinators move pollen within the same population, but it can be moved to another population if it is close enough and the pollinator is capable of moving the pollen across that distance.
Cirsium loncholepis
seeds are capable of being moved within the same population and to another population by animals, wind, and water.

Pollinators
:
Cirsium loncholepis
is capable of both self-fertilization (pollination events on the same individual) and cross-fertilization (pollination events between two individuals). Other similar, riparian, monocarpic
Cirsium
species self- and cross-pollinate (Hamzé and Jolls 2000, pp. 141-153).
Cirsium loncholepis
flowers produce nectar and copious quantities of pollen and are visited by birds and a wide variety of insects (Keil 2008, unpaginated).
Cirsium loncholepis
and other
Cirsium
taxa with similar heads are pollinated by bees (i.e., solitary, mining, (families Andrenidae and Anthophoridae), mason (
Osmia
sp.), carpenter (
Xylocopa
sp.), and leaf cutter bees (family Megachilidae) and the introduced honeybee (
Apis mellifera
)), butterflies (order Lepidoptera), flies (order Diptera), beetles (order Coleoptera (e.g., darkling ground beetles (family Tenebrionidae))), black ants (family Formicidae), and hummingbirds (family Trochilidae) (Moldenke 1976, pp. 305-361; Krombein
et al.
1979, Vol. 2, pp

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3AE9-26221. Public record. Not legal advice.