Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Vail Lake Ceanothus and Mexican Flannelbush

Thursday,
September 27, 2007
Part II
Department of the
Interior
Fish and Wildlife Service
50 CFR Part 20
Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
Ceanothus ophiochilus (Vail Lake
ceanothus) and Fremontodendron
mexicanum (Mexican flannelbush); Final
Rule
mstockstill on PROD1PC66 with RULES2
VerDate Aug<31>2005 18:26 Sep 26, 2007 Jkt 211001 PO 00000 Frm 00001 Fmt 4717 Sfmt 4717 E:\FR\FM\27SER2.SGM 27SER2
54984 Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations
DEPARTMENT OF THE INTERIOR FOR FURTHER INFORMATION CONTACT: Jim of F. mexicanum in Little Cedar Canyon,
Bartel, Field Supervisor, Carlsbad Fish and is not within the area designated as
Fish and Wildlife Service and Wildlife Office (see ADDRESSES); critical habitat. Approximately 500 F.
telephone 760–431–9440; facsimile mexicanum were documented at this
50 CFR Part 17 760–431–5901. If you use a rediscovered occurrence (Snapp-Cook
RIN 1018–AU77 telecommunications device for the deaf 2007, p. 1). The significance of this
(TDD), call the Federal Information occurrence and its impact on designated
Endangered and Threatened Wildlife Relay Service (FIRS) at 800–877–8339. critical habitat will need to be further
and Plants; Designation of Critical evaluated by the Service. Appropriate
SUPPLEMENTARY INFORMATION:
Habitat for Ceanothus ophiochilus action, if any, will be addressed in a
(Vail Lake ceanothus) and Background future rulemaking. For a detailed
Fremontodendron mexicanum discussion of the distribution of F.
It is our intent to discuss only those
(Mexican flannelbush) mexicanum and Ceanothus ophiochilus
topics directly relevant to the
documented prior to this final
AGENCY: Fish and Wildlife Service, designation of critical habitat in this
designation, please refer to the proposed
Interior. final rule. For more information on
critical habitat designation published in
ACTION: Final rule. Ceanothus ophiochilus and
the Federal Register on October 3, 2006
Fremontodendron mexicanum, refer to
SUMMARY: We, the U.S. Fish and (71 FR 58340).
the final listing rule published in the
Wildlife Service (Service), are Federal Register on October 13, 1998 Previous Federal Actions
designating critical habitat for (63 FR 54956), or the proposed critical
Ceanothus ophiochilus (Vail Lake On August 10, 2004, the Center for
habitat rule published in the Federal
ceanothus) and Fremontodendron Biological Diversity and California
Register on October 3, 2006 (71 FR
mexicanum (Mexican flannelbush) Native Plant Society challenged our
58340).
under the Endangered Species Act of failure to designate critical habitat for
1973, as amended (Act). In total, Species Descriptions and Life History these two species as well as three other
approximately 431 acres (ac) (175 No new information pertaining to the plant species (Center for Biological
hectares (ha)) of federally-owned land descriptions or life histories of these Diversity, et al. v. Gale Norton,
fall within the boundaries of the critical species was received following the 2006 Secretary of the Department of the
habitat designation for these two proposed designation of critical habitat Interior, et al., C–04–3240 JL, N. D. Cal.).
species. Approximately 203 ac (82 ha) of for each species; therefore, please refer In a Settlement Agreement dated
land in Riverside County, California, are to the proposed critical habitat December 21, 2004, we agreed to submit
being designated as critical habitat for C. designation published in the Federal for publication in the Federal Register
ophiochilus, and approximately 228 ac Register on October 3, 2006 (71 FR a proposed designation of critical
(93 ha) of land in San Diego County, 58340) for a discussion of the species habitat, if prudent and determinable, on
California, are being designated as description and life history for these or before September 20, 2006, and a
critical habitat for F. mexicanum. Of the two species. final determination by September 20,
approximately 283 ac (115 ha) proposed 2007. As part of the 2006 proposed
for designation for C. ophiochilus, Ecology and Habitat designation we determined that it was
approximately 80 ac (33 ha) of privately- No new information pertaining to the prudent to designate critical habitat for
owned land covered by the Western ecology or habitat of these two species each of these two species. The
Riverside County Multiple Species was received following the 2006 combined proposed critical habitat
Habitat Conservation Plan (MSHCP) proposed designation of critical habitat designation for both species was signed
have been excluded from critical habitat for each species. Therefore, please refer on September 18, 2006, and published
for C. ophiochilus under section 4(b)(2) to the proposed critical habitat in the Federal Register on October 3,
of the Act. Of the approximately 361 ac designation published in the Federal 2006 (71 FR 58340). This final rule
(147 ha) proposed for designation for F. Register on October 3, 2006 (71 FR completes the Service’s obligations
mexicanum, approximately 133 ac (54 58340), for a discussion of the ecology regarding these species under the
ha) of privately-owned land covered by and habitat for these two species. December 21, 2004, settlement
the San Diego Multiple Species agreement.
Conservation Plan (MSCP) have been Distribution A draft economic analysis (DEA) for
excluded from critical habitat for F. In 2007, an occurrence of the proposed designation was
mexicanum under section 4(b)(2) of the Fremontodendron mexicanum was completed on March 2, 2007, and a
Act. documented at the historical notice of availability for this DEA was
DATES: This rule becomes effective on ‘‘Woodwardia Canyon’’ occurrence on published in the Federal Register on
October 29, 2007. Otay Mountain, which was last April 5, 2007 (72 FR 16756). Publication
ADDRESSES: Comments and materials documented in 1936 (Snapp-Cook 2007, of the notice of availability opened a
received, as well as supporting p. 1). Prior to the rediscovery of this public comment period for the draft
documentation used in the preparation occurrence, the exact location of economic analysis of the proposed
of this final rule, will be available for ‘‘Woodwardia Canyon’’ was difficult to designation as well as the proposed
public inspection, by appointment, discern from existing records. There designation from April 5, 2007, to May
during normal business hours, at the were no maps of ‘‘Woodwardia Canyon’’ 7, 2007. Please refer to the ‘‘Previous
U.S. Fish and Wildlife Service, Carlsbad and the California Natural Diversity Federal Actions’’ section of the
Fish and Wildlife Office, 6010 Hidden Database (CNDDB) cited ‘‘Woodwardia proposed critical habitat rule for
Valley Road, Carlsbad, CA 92011 Canyon’’ in two separate areas (CNDDB Ceanothus ophiochilus and
(telephone 760–431–9440). The final 2005, p. 1 and p. 3). The rediscovered Fremontodendron mexicanum, which
rule, economic analysis, and maps will occurrence is located on Otay Mountain published in the Federal Register on
also be available via the Internet at 0.3 miles (mi) (0.5 kilometers (km)) to October 3, 2006 (71 FR 58340) for a
http://www.fws.gov/carlsbad/. the southwest of the known occurrence discussion of additional Federal actions
Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 / Rules and Regulations 54985
that occurred prior to the designation of reviewer indicated that the 1977 likelihood of further introgressive
critical habitat for each species. Jennings Geologic Maps do not indicate hybridization within the new cohort of
any metavolcanic substrate, only gabbro C. ophiochilus. This contrasts with the
Summary of Comments and
substrate in the vicinity of species populations near Vail Lake where the
Recommendations
occurrences. natural distance to C. crassifolius
We requested written comments from Response: We reviewed the soils populations is greater and there has not
the public on the proposed designation information for this species. Geological been disturbance within the population.
of critical habitat for Ceanothus maps that are more recent than the 1977 These factors lead to the conclusion
ophiochilus and Fremontodendron Jennings Geologic Maps are available. that the population at Vail Lake has a
mexicanum in the proposed rule that These maps indicate that the area much better chance of keeping the pure
published on October 3, 2006 (71 FR around Vail Lake and in the Agua Tibia form of C. ophiochilus intact and lower
58340), and in the notice of availability Wilderness, where Ceanothus the risk caused by hybridization.
of the DEA published on April 5, 2007 ophiochilus is found, consists of Response: We agree with the peer
(72 FR 16756). We also contacted metavolcanic, metasedimentary, and reviewer’s comments on the potential
appropriate Federal, State, and local Gabbro substrates (Kennedy et al. 2000, problems associated with hybridization,
agencies; scientific organizations; and p. 1; and Kennedy and Mertz 2003, p. and we have made the appropriate
other interested parties and invited 1). changes to this final rule to clarify that
them to comment on the proposed rule 2. Comment: One peer reviewer stated hybridization is a threat to this species
and the DEA. that the Ceanothus ophiochilus (please see the ‘‘Primary Constituent
During the comment period that population in Subunit 1A near Vail Elements’’ section for Ceanothus
opened on October 3, 2006, and closed Lake is important to the preservation of ophiochilus). However, we disagree
on December 4, 2006, we received three the genetic purity of this species and with the peer reviewer’s comment that
comments directly addressing the should not be excluded from critical Subunit 1A for C. ophiochilus should
proposed critical habitat designation: habitat because the Western Riverside not be excluded from critical habitat
Two from peer reviewers and one from County Multiple Species Habitat because the Western Riverside County
the County of San Diego. We did not Conservation Plan (MSHCP) does not MSHCP does not adequately protect this
receive any requests for a public hearing adequately protect this population. The population. The Western Riverside
during this first comment period. A peer reviewer made the following points County MSHCP provides measures to
second comment period opened on to the argument that this population is benefit the conservation of C.
April 5, 2007, to allow for comment on important and should be protected: ophiochilus by: protecting habitat from
the DEA and the proposed critical a. In the proposed rule we wrote that surface-disturbing activities;
habitat. During the comment period that Ceanothus ophiochilus ‘‘appears’’ to implementing specific management and
opened on April 5, 2007, and closed on hybridize with C. crassifolius; however, monitoring practices to help ensure the
May 7, 2007, we received seven the peer reviewer commented that C. conservation of C. ophiochilus in the
comments directly addressing the ophiochilus ‘‘does’’ hybridize with C. MSHCP Conservation Area; maintaining
proposed critical habitat designation crassifolius and that there are several the physical and ecological
and the draft economic analysis. Of specimens deposited at the herbarium of characteristics of occupied habitat; and
these latter comments, two were from Rancho Santa Ana Botanic Garden conducting surveys and implementing
peer reviewers, one was from a Federal which document the hybridization of other required procedures to ensure
agency, two were from local these two species. avoidance of impacts to at least 90
governments, one was from an b. The peer reviewer commented that percent of suitable habitat areas
organization, and one was from an both Ceanothus ophiochilus and C. determined important to the long-term
individual. crassifolius are members of the conservation of C. ophiochilus within
subgenus Cerastes. All members of this the Criteria Area. As discussed in the
Peer Review subgenus lack a burl and are obligate proposed critical habitat rule, the
In accordance with our policy seeders. The peer reviewer states that exclusion of critical habitat does not
published on July 1, 1994 (59 FR because both of these species only dismiss or lessen the value that the Vail
34270), we solicited expert opinions regenerate from seeds following a fire Lake population has to the overall
from five knowledgeable individuals and that the two species hybridize, the conservation of this species. Rather, we
with scientific expertise that included threat of hybridization is a threat to the have determined that the benefits of
familiarity with the species, the survival of the species. excluding Subunit 1A are greater than
geographic region in which the species c. The peer reviewer commented that the benefits of including the subunit,
occurs, and conservation biology the occurrences near Vail Lake and the and the exclusion of Subunit 1A will
principles. We received responses from occurrences in the Agua Tibia not result in the extinction of the
four of the peer reviewers. The peer wilderness are affected differently by species (please see the ‘‘Relationship of
reviewers generally concurred with our hybrids because Ceanothus crassifolius Critical Habitat to Habitat Conservation
methods and conclusions and one peer grows immediately adjacent to the C. Plan Lands —Exclusions Under Section
reviewer commented that the ophiochilus in the Agua Tibia 4(b)(2) of the Act’’ section of this final
information for Fremontodendron Wilderness and these two species are rule for a detailed discussion).
mexicanum was well researched and separated by 0.25 mi (0.4 km) in Vail 3. Comment: A second peer reviewer
complete. Lake. commented that the hybridization
All comments are addressed in the d. The peer reviewer commented that between Ceanothus ophiochilus and C.
following summary and incorporated due to soil disturbance from roads and crassifolius may result in the loss of
into the final rule as appropriate. fuel breaks within the populations of homogeneous C. ophiochilus
Peer Reviewer Comments Ceanothus ophiochilus in the Agua populations at some sites. This is
1. Comment: One peer reviewer Tibia Wilderness, hybrid plants are now especially true in those populations
requested that we clarify the statement more interspersed with the population. where the C. crassifolius significantly
that Ceanothus ophiochilus is found on The greater amount of hybrid outnumbers C. ophiochilus or where the
metavolcanic substrate. The peer individuals may increase the relative two species are in close contact. The
reviewer further commented that important implications in the therefore, excluded 133 ac (54 ha) of
management plans need to take this regeneration ecology of seed dispersal in private lands proposed as critical
potential problem into consideration. this species and, therefore, its continued habitat for this species from this final
Response: The information provided persistence. designation under section 4(b)(2) of the
by this peer reviewer and the previous Response: As required under the Act, Act (see the ‘‘Relationship of Critical
peer reviewer help to explain why we have based this critical habitat Habitat to Habitat Conservation Plan
hybridization threatens this species. We designation on the best scientific and Lands—Exclusions Under Section
have made the appropriate changes to commercial data available. We agree 4(b)(2) of the Act’’ section of this final
this final rule to clarify that that investigating the seed dispersal rule for detailed discussion of the
hybridization is a threat to the species mechanism for Fremontodendron protections provided under the MSCP).
(please see ‘‘Primary Constituent mexicanum and the relationship with 7. Comment: The County indicated
Elements’’ section for Ceanothus ants or other possible dispersers is that the location of subunit 1A is not
ophiochilus and the ‘‘Special important. We encourage further study consistently described in the proposed
Management Considerations or and will continue to investigate rule. The County stated the proposed
Protection’’ section). We have based this dispersal mechanisms as we work rule indicates that subunit 1A for
critical habitat designation on the best towards the conservation of the species. Fremontodendron mexicanum is
scientific and commercial data entirely on BLM land, but the map
Public Comments
available. Currently, we are unaware of indicates that the subunit contains BLM
any studies specifically addressing the 6. Comment: The County of San Diego land and private land.
extent to which these two species are commented that private lands in Response: The proposed rule (71 FR
hybridizing. We also do not have subunits 1A and 1B occupied by 58340, October 3, 2006) indicates that
information on the reproductive Fremontodendron mexicanum are subunit 1A for Fremontodendron
characteristics of the hybrid plants in entirely within a designated preserve mexicanum consists of both BLM and
the wild. However, we agree that area that will be protected and managed private land in the unit description on
researching the issue of hybridization as under the San Diego MSCP. The County page 58350 and in Table 1 on the same
it relates to C. ophiochilus will be provided specific information on the page.
important to the conservation of this monitoring and management activities 8. Comment: One commenter
species. that will benefit this species and requested that we discuss how the
4. Comment: One peer reviewer stated requested that lands covered by the designation of critical habitat for
that Ceanothus ophiochilus will not MSCP be excluded from the final Ceanothus ophiochilus may contribute
survive in the long term if intentionally designation under section 4(b)(2) of the to the fuel load and the fire hazard in
exposed to fire-suppression. The peer Act. the area around the designation. The
reviewer stated that this species is Response: In the proposed rule, we commenter also requested that we
unable to reproduce vegetatively and requested comments on the identify range land plants species
requires fire to prepare seeds for appropriateness of excluding lands important to healthy rangelands that C.
germination and provide an open, occupied by Fremontodendron ophiochilus could overtake in its
mineral-rich soil free from competition mexicanum covered by the San Diego recovery after wildfire.
among seedlings. The peer reviewer MSCP but did not propose these lands Response: Ceanothus ophiochilus is a
commented that plans for managing for exclusion. Based on comments we relatively uncommon component of
critical habitat need to take this natural received during the public comment chaparral and occurs in very limited
process into consideration. periods for the proposed rule, we have areas. We do not believe that the
Response: Designation of critical determined that even though F. conservation of this species will
habitat does not necessarily require mexicanum is not a covered species increase the fire danger in areas where
changes to existing management plans. under the San Diego MSCP, private critical habitat is designated.
However, we have incorporated this lands occupied by this species will be Management for this species would
information as it relates to the potential conserved under the San Diego MSCP favor a natural fire regime, on the order
impacts of fire-suppression into the through the Otay Ranch Phase 2 of once every 20 to 50 years (Keeley
‘‘Primary Constituent Elements’’ section Resource Management Plan. The Otay 2006, p. 367). Ceanothus ophiochilus is
for Ceanothus ophiochilus of this final Ranch Phase 2 Resource Management restricted to a limited soil type found in
rule, so it will be considered in any Plan includes specific protection small patches on ridge-tops and north-
relevant future section 7 consultations. measures that will benefit F. facing slopes. This species is found in
We will also encourage parties to mexicanum. In addition, these private chaparral habitat and not areas that are
consider the effects of fire-suppression lands will receive management for historically range land. Following fire,
when developing management plans associated species that are covered C. ophiochilus repopulates limited areas
covering areas supporting essential under the MSCP that is consistent with in chaparral habitat and will not
habitat for C. ophiochilus. the biological needs of F. mexicanum overtake rangelands.
5. Comment: One peer reviewer and preservation of its primary 9. Comment: One commenter stated
indicated that the seeds of constituent elements. Based on the that the critical habitat designation
Fremontodendron decumbens differ benefits of preserving and fostering our should include all lands occupied by
from the seeds of F. mexicanum. partnerships with these local these two species.
Fremontodendron decumbens seeds jurisdictions and other non-Federal Response: Under section 3(5)(c) of the
have an orange waxy protrusion called entities, and after considering the Act, critical habitat shall not include the
a caruncle. The caruncle attracts ants conservation benefits provided by the entire geographical area which can be
which in turn disperse the seeds. It has Otay Ranch Phase 2 Resource occupied by the species unless
been reported that F. mexicanum does Management Plan under the MSCP, we otherwise determined by the Secretary.
not have a caruncle. The peer reviewer have now determined that the benefits The proposed designation of critical
commented that this should be verified of excluding these lands from critical habitat for these two species included
through a formal study because the habitat outweigh the benefits of all of the areas known to be occupied by
presence or absence of a caruncle has including these lands, and we have, Ceanothus ophiochilus and
Fremontodendron mexicanum at the final designation using the same Area of the MSCP for the City and
time of the proposed rule (71 FR 58340, standards under section 4(b)(2) of the County of San Diego.
October 3, 2006). After critical habitat Act. In considering whether this plan Response: Fremontodendron
was proposed for Fremontodendron provides adequate management or mexicanum is not covered by the San
mexicanum, approximately 500 F. protection for the species for purposes Diego MSCP; however, all of the known
mexicanum were documented at the of applying section 4(b)(2) of the Act, occurrences of this species occur within
location of an historical occurrence on we evaluated the plan based on the the preserve design for the MSCP (Pryor
Otay Mountain that was previously following three criteria: (1) The plan is 2007, p. 1–2). When the private lands
believed to be extirpated. This complete and provides the same or a where F. mexicanum occurs are
rediscovered occurrence is not within higher level of protection from adverse conveyed into the MSCP preserve, they
the area proposed as critical habitat. We modification or destruction than that will be subject to adaptive management
recognize that designation of critical provided through a consultation under activities, consistent with the MSCP.
habitat may not include all of the section 7 of the Act; (2) there is a Protections, management, and
habitat areas that may eventually be reasonable expectation that the monitoring are described in the draft
determined to be necessary for the conservation management strategies and Otay Ranch Phase 2 Resource
recovery of the species. Therefore, actions will be implemented based on Management Plan (Otay Ranch 2002, p.
critical habitat designations do not past practices, written guidance, or 141–144; Pryor 2007, p. 2). Therefore,
signal that habitat outside the regulations; and (3) the plan provides we believe that private lands where this
designation is unimportant or may not conservation strategies and measures species and associated primary
be required for recovery. consistent with currently accepted constituent elements are found will be
10. Comment: One commenter stated principles of conservation biology. As managed in a way that will help to
that we should include critical habitat discussed in the ‘‘Relationship of achieve the recovery of this species and
Subunit 1A for Ceanothus ophiochilus Critical Habitat to Habitat Conservation have determined that the benefits of
because the Western Riverside County Plan Lands—Exclusions Under Section exclusion outweigh the benefits of
Multiple Species Habitat Conservation 4(b)(2) of the Act’’ section, we believe inclusion as described in the
Plan (MSHCP) fails to provide special that the Western Riverside County ‘‘Relationship of Critical Habitat to
management to address altered fire MSHCP fulfills these criteria, and we Habitat Conservation Plan Lands—
regime and nonnative species. are excluding non-Federal lands Exclusions Under Section 4(b)(2) of the
Response: Under the Western covered by this plan that provide for the Act’’ section.
Riverside County MSHCP, an adaptive conservation of Ceanothus ophiochilus 13. Comment: One commenter stated
management program will be used to from the final designation of critical that we should use the Primary
meet the conservation goals and habitat pursuant to section 4(b)(2) of the
Constituent Elements (PCEs) to model
objectives for this species. The species suitable habitat for these species and
Act. The USFS’s Land Management Plan
account for Ceanothus ophiochilus in designate suitable unoccupied habitat
contains general provisions for
the MSHCP documentation for these species. The commenter stated
conservation of this species, and
acknowledges that altered fire regimes that the Service should consider and
additional guidance documents are
and nonnative invasive species threaten evaluate the recovery benefits of critical
available that suggest specific
this species. The Western Riverside habitat designation as part of our critical
management and conservation actions
County MSHCP provides a mechanism habitat designation.
that should be considered. However, the Response: When determining habitat
to address special management
LMP does not identify specific essential for the conservation of these
considerations and protections for the
management measures to address the species, we used a set of specific criteria
population of C. ophiochilus and its
primary constituent elements identified threat posed by short-interval fires and for each species (see ‘‘Criteria Used To
for conservation under the MSHCP in by competing nonnative species (Zedler Identify Critical Habitat’’ below for more
Subunit 1A. After considering all 1983, p. 815; Keeley 2006, p. 367; detail). Based on the resulting areas that
relevant factors, including the Merriam et al. 2007, p. vi, v, 48, 61). were identified using these criteria, we
conservation measures provided by the Therefore, after analyzing the LMP in made the determination that additional,
MSHCP, we have determined that the light of the criteria identified above, we unoccupied areas were not essential for
benefits of excluding lands covered by have determined that the LMP does not the conservation of either species. We
the MSHCP from critical habitat provide management for C. ophiochilus believe the current distribution of
outweigh the benefits of inclusion (see in a manner that provides the same or known, occupied locations of both
‘‘Relationship of Critical Habitat to higher level of protection from adverse species will provide for the
Habitat Conservation Plan Lands— modification or destruction than that conservation and contribute to the
Exclusions Under Section 4(b)(2) of the provided through a consultation under recovery of these species. Additionally,
Act’’ section for a detailed discussion of section 7(a)(2) of the Act. In addition, as both of these species occur in very
the MSHCP and further explanation of discussed below in the ‘‘Exclusions limited areas. These species are
the bases for this conclusion). under Section 4(b)(2) of the Act’’ section endemic to a very narrow range, and we
11. Comment: One commenter stated below, we have determined not to have determined that the best
that both the Western Riverside County exclude these Federal lands from the conservation strategy for these two
MSHCP and U.S. Forest Service’s final designation of critical habitat species is to conserve them in the
(USFS) Land Management Plan (LMP) pursuant to section 4(b)(2) of the Act. locations where they currently are
should be evaluated using the same 12. Comment: One commenter stated found. Accordingly, when the best
standards when considering the that both subunits 1A and 1B for available scientific data does not
exclusion of critical habitat Subunit 1A Fremontodendron mexicanum need to demonstrate that the conservation needs
and 1B for Ceanothus ophiochilus. be retained in the final designation of of the species require additional areas,
Response: We did evaluate lands critical habitat, despite the overlap of F. we will not designate critical habitat in
covered by the Western Riverside mexicanum with other species that are areas outside the geographical area
County MSHCP and the USFS’s Land included in the Multiple Habitat occupied by the species at the time of
Management Plan for exclusion from the Preserve Area/Pre-approved Mitigation listing.
When proposing and finalizing meeting the definition of critical habitat County Multiple Species Habitat
critical habitat designations, the Service for both C. ophiochilus and F. Conservation Plan, sec. 14.10 at p. 51).’’
does consider the recovery benefits to mexicanum occur on private lands. The Response: In the Biological Opinion
species. The identification of those HCPs in Riverside County and San for the MSHCP, the Service concluded
lands that are essential for the Diego County include these private that the proposed conservation strategy
conservation of the species and can, if lands and provide for the management would adequately conserve Ceanothus
managed, provide for the recovery of a and monitoring of these lands as they ophiochilus and its primary constituent
species, is beneficial. The process of are conserved. These plans are believed elements (Service 2004, p. 402–406). We
proposing and finalizing a critical to provide for long-term conservation of believe that the conservation
habitat rule provides the Service with these lands that the designation of mechanisms in place under the HCP
the opportunity to identify the species’ critical habitat would not provide will adequately conserve the
essential primary constituent elements (please see the ‘‘Relationship of Critical populations and primary constituent
and areas essential for the conservation Habitat to Habitat Conservation Plan elements on private lands. Further, the
of the species. The designation process Lands—Exclusions Under Section benefits analysis provided herein under
includes peer review and public 4(b)(2) of the Act’’ section of this final section 4(b)(2) of the Act determined
comment on the identified features and rule for a detailed discussion). that the benefits of excluding the
lands. This process is valuable to land 15. Comment: One comment stated specific lands from critical habitat
owners and managers in developing that the individual supports all of the outweigh the benefits of including them
conservation management plans for past and on-going conservation efforts in critical habitat (see the ‘‘Exclusions
identified lands, as well as any other that have taken place for these two under Section 4(b)(2) of the Act’’ section
occupied or unoccupied suitable habitat species; however, these conservation of this final rule for further details).
that may not have been included in the efforts are not a substitute for critical Therefore, we have excluded private
Service’s determination of essential habitat. The person commented that lands covered by the MSHCP. We
habitat. critical habitat complements the appreciate the conservation work that
14. Comment: One commenter conservation goals of habitat the USFS is doing for C. ophiochilus;
requested that we evaluate how an conservation plans and, by designating however, the USFS is not a signatory to
exclusion under 4(b)(2) of the Act will critical habitat, the Service assures that the MSHCP permit and therefore is not
affect the recovery of the species in the Federal Government meets its legal bound by the requirements of the
addition to whether or not the exclusion obligation to ensure the continued MSHCP. The phrase ‘‘lands within the
will lead to the extinction of the species. existence and recovery for Ceanothus boundaries of the MSHCP,’’ as used in
Response: We believe the designation ophiochilus and Fremontodendron the provision of the Implementing
of critical habitat promotes the recovery mexicanum. Agreement referenced by the
of species, and when proposing and Response: The process of designating commenter, refers to lands under the
finalizing critical habitat designations critical habitat does complement the jurisdiction of the MSHCP permittees,
we do consider the recovery benefits to existing habitat conservation plans and does not include federal lands that
species. When considering an exclusion (HCPs). The proposed rule identifies fall within the overall MSHCP
under section 4(b)(2) of the Act, the areas that meet the definition of critical boundaries. For the reasons stated in the
recovery benefits to the species from habitat. These areas are then analyzed above response to Comment 11, we have
designating a particular area as critical based on existing land-use planning determined not to exclude the USFS
habitat are fully considered when we documents, such as HCPs. Based on this lands.
determine whether the benefits of analysis, areas may be excluded from
inclusion of such area are outweighed the final designation of critical habitat, Comments From Other Federal Agencies
by the benefits of exclusion. if the benefits of exclusion outweigh the 17. Comment: The USFS commented
If we determine that the benefits of benefits of including them in the critical that the proposed critical habitat
excluding a particular area from critical habitat designation and the exclusions contains the occurrences and habitat for
habitat outweigh the benefits of will not result in the extinction of the Ceanothus ophiochilus on USFS land.
including such area, and have species. This exclusion analysis They also highlighted that the proposed
determined that excluding the area from considers all benefits, including designation stated that the Cleveland
the final critical habitat designation is recovery benefits, and through the National Forest (CNF) lands were
appropriate, we then evaluate whether analysis the Service meets all legal proposed for designation because of
that exclusion would result in the requirements for designation of critical impacts to ridge tops from grading
extinction of the species and provide habitat. associated with the creation of fuel
clear explanation for this determination. 16. Comment: One commenter breaks, impacts to the associated
If we have been considering an expressed support for our exclusion of vegetation community from unnatural
exclusion that we determine will result private lands within the Western fire regimes, and nonnative species.
in the extinction of a species, consistent Riverside County MSHCP; however, the While the USFS agreed that these
with the statutory requirements of commenter stated that all lands covered threats could damage C. ophiochilus
Section 4(b)(2), we will not exclude the by the MSHCP, including the USFS habitat, they indicated that their Land
area from the critical habitat lands, should be excluded from critical Management Plan (LMP) provides for
designation. Please see the habitat. The commenter cited the the minimization and avoidance of
‘‘Relationship of Critical Habitat to Implementing Agreement for the impacts to endangered species.
Habitat Conservation Plan Lands— MSHCP indicating the Service had Specifically, they indicated that
Exclusions Under Section 4(b)(2) of the agreed that ‘‘in the event that a critical Standard 12 of their LMP states, ‘‘When
Act’’ section of this final rule for a habitat determination is made for any occupied or suitable habitat for
detailed discussion and our covered species adequately conserved threatened, endangered, proposed,
determinations that the exclusions in * * * lands within the boundaries of candidate or sensitive species is present
this final rule will not result in the the MSHCP will not be designated as on an ongoing or proposed project site,
extinction of Ceanothus ophiochilus or critical habitat (Implementing consider species guidance documents to
Fremontodendron mexicanum. Areas Agreement for the Western Riverside develop project-specific design criteria.’’
Response: We acknowledge the efforts of the Act. Please see our response to attributable to listing under the Act. The
the USFS has made towards the Comment number 11. comment further states that the DEA
conservation of the Ceanothus 19. Comment: The USFS commented inaccurately attributes all of the costs to
ophiochilus and acknowledge that the that current laws, regulations, and critical habitat designation and confuses
LMP contains general provisions for policies, and land management the economic costs by including costs of
conservation of this species. However, practices on the CNF are adequate to conservation efforts for the species (not
in considering whether the plan provide for the conservation of just critical habitat) with conservation of
provides adequate management or Ceanothus ophiochilus and its habitat. the proposed critical habitat.
protection for the species for purposes They further state that designation of Response: The economic analysis
of applying section 4(b)(2) of the Act, critical habitat on CNF lands would not estimates the total cost of species
we evaluated the plan based on the provide any additional benefit to the conservation activities without
following three criteria: (1) The plan is conservation of C. ophiochilus, or its subtracting the impact of pre-existing
complete and provides the same or a habitat, and that designation would baseline regulations (i.e., the cost
higher level of protection from adverse unnecessarily add to their analysis estimates are fully co-extensive). In
modification or destruction than that burden by requiring the USFS to make 2001, the U.S. 10th Circuit Court of
provided through a consultation under a determination of effect regarding Appeals instructed the Service to
section 7 of the Act; (2) there is a critical habitat when consulting under conduct a full analysis of all of the
reasonable expectation that the section 7(a)(2) of the Act. economic impacts of proposed critical
conservation management strategies and Response: Although the comment habitat designation, regardless of
actions will be implemented based on letter from the USFS does not explicitly whether those impacts are attributable
past practices, written guidance, or request that the lands proposed for co-extensively to other causes (New
regulations; and (3) the plan provides designation be excluded from final Mexico Cattle Growers Ass’n v. USFWS,
conservation strategies and measures critical habitat, based on their 248 F.3d 1277 (10th Cir. 2001)). The
consistent with currently accepted comments we did consider their lands economic analysis for Ceanothus
principles of conservation biology. The for exclusion. We concluded that ophiochilus and Fremontodendron
LMP does not identify specific despite the LMP and other regulations mexicanum is consistent with this
management measures to address the that exist, which require the USFS to direction from the U.S. 10th Circuit
threat posed by short-interval fires and manage Ceanothus ophiochilus and its Court of Appeals. The analysis
by competing nonnative species (Keeley habitat, the benefits of including this identifies those economic activities
2006, p. 367; Merriam et al. 2007, p. vi, area in critical habitat outweigh the believed most likely to threaten the
v, 48, 61). Because the USFS does not benefits of excluding this area from the species and their habitat and, where
have a management plan specific to C. designation of critical habitat (please see possible, quantifies the economic
ophiochilus that provides the same or the ‘‘Unit Description’’ section for impact to avoid, mitigate, or compensate
better level of protection from adverse detailed discussion on the exclusion of for such threats within the boundaries
modification or destruction than that the USFS lands in this critical habitat of the critical habitat designation. We
provided through a consultation under determination). acknowledge that some of these costs
section 7(a)(2) of the Act, we have will likely be incurred regardless of
Comments Related To the Draft
determined that exclusion of these lands whether critical habitat is designated.
Economic Analysis
However, due to the difficulty in
from the final designation of critical 20. Comment: One commenter stated making a credible distinction between
habitat pursuant to section 4(b)(2) of the that the DEA should consider potential listing and critical habitat effects within
Act is not appropriate for these Federal economic impacts to all occupied and critical habitat boundaries, the analysis
lands. unoccupied but suitable habitat, rather considered all future conservation-
18. Comment: The USFS commented than just the areas included in the draft related impacts to be coextensive with
that like HCPs, the USFS LMPs are rule. the designation. We have not excluded
designed to ensure the long-term Response: In a critical habitat any areas from the final critical habitat
survival of covered species in the plan designation, section 4(b)(2) of the Act designation based on economic impacts
area and designed to protect, restore, requires that we consider the economic under section 4(b)(2) of the Act.
and enhance the value of USFS lands as impact of specifying any particular area 22. Comment: One comment states
habitat for listed species. They indicated as critical habitat. Therefore, we prepare that the DEA fails to evaluate any
that their LMP provides comparable an economic analysis to identify the benefits of conserving a species that is
conservation measures for Ceanothus economic impact of designating areas threatened by extinction. The comment
ophiochilus and its primary constituent proposed as critical habitat (including further notes that in addition to the
elements as the Western Riverside any areas proposed for exclusion under dollar value of both Ceanothus
County MSHCP, and therefore should be section 4(b)(2) of the Act). The ophiochilus and Fremontodendron
excluded from critical habitat under economic analysis focuses on activities mexicanum, there are many other
section 4(b)(2) of the Act. within or affecting these areas. Potential values, destined to grow with our
Response: Based on a review of the economic impacts to areas supporting knowledge of the species in science,
USFS LMP, we do not believe that the occupied and suitable habitat that are medicine, and aesthetics and in ways
LMP provides conservation measures outside the boundaries of proposed still unforeseen. The same commenter
for Ceanothus ophiochilus comparable critical habitat are not relevant to the requests that at least some of these
to those provided in the Western required analysis under section 4(b)(2) values be quantified and estimated in
Riverside County MSHCP. During the of the Act. the final economic analysis.
development of this final designation, 21. Comment: One commenter stated Response: Section 4(b)(2) of the Act
we evaluated lands covered by the that the DEA overestimates costs requires the Secretary to designate
Western Riverside County MSHCP, the associated with conserving both critical habitat based on the best
USFS’s LMP, and other relevant Ceanothus ophiochilus and scientific data available after taking into
conservation plans for exclusion using Fremontodendron mexicanum, because consideration the economic impact,
the same standards under section 4(b)(2) it includes economic impacts impact on national security, and any
other relevant impact, of specifying any critical habitat are afforded appropriate and Fremontodendron mexicanum, we
particular area as critical habitat. The weight in the balancing analysis under reviewed and considered public and
Service’s approach for estimating section 4(b)(2). peer review comments on the proposed
economic impacts includes both 23. Comment: One commenter designation of critical habitat and the
economic efficiency and distributional requested that we identify the potential DEA. As a result of comments received
effects. The measurement of economic cost of loss of private property and on the proposed rule and the DEA, and
efficiency is based on the concept of habitat due to wildfires that may occur a reevaluation of the proposed critical
opportunity costs, which reflect the as a result of the designation of critical habitat boundaries, we made the
value of goods and services foregone in habitat. changes identified below to our
order to comply with the effects of the Response: Ceanothus ophiochilus and proposed designation.
designation (e.g., lost economic Fremontodendron mexicanum are In the proposed rule, we requested
opportunity associated with restrictions adapted to a natural fire regime with comments on the appropriateness of
on land use). Where data are available, wildfire intervals of approximately 20 to excluding lands occupied by
the economic analyses do attempt to 50 years. For example, C. ophiochilus Fremontodendron mexicanum covered
measure the net economic impact. reproduces after fire from seed. As a by the San Diego MSCP but did not
However, no data was found that would result, fire suppression activities can propose these lands for exclusion. Based
allow for the measurement of such an considerably limit the species’ ability to on information we received during the
impact, nor was such information reproduce because the seeds need fire to public comment periods for the
submitted during the public comment sprout. However, short-interval fires can proposed rule, we have determined that
period. also be detrimental to the species by even though F. mexicanum is not a
Most of the other benefit categories preventing plants from reaching covered species under the San Diego
submitted by the commenter reflect reproductive maturity and facilitating MSCP, private lands occupied by this
broader social values, which are not the the establishment of non-native grasses species will be conserved under the San
same as economic impacts. While the that compete for limited space and Diego MSCP through the Otay Ranch
Secretary must consider economic and resources. Federal agencies indicated Phase 2 Resource Management Plan.
other relevant impacts as part of the that they would need to develop fire The management provided by the MSCP
final decision-making process under management plans for each species. for other covered species will also
section 4(b)(2) of the Act, the Act Adoption of species-specific fire benefit the recovery of F. mexicanum
explicitly states that it is the management plans, which are (see ‘‘Relationship of Critical Habitat to
government’s policy to conserve all themselves subject to consultation Habitat Conservation Plan Lands—
threatened and endangered species and pursuant to Section 7 of the Act, will Exclusions Under Section 4(b)(2) of the
the ecosystems upon which they allow Federal land managers to Act’’ section for further discussion). We
depend. Thus, we believe that explicit maintain the natural fire regimes reanalyzed the lands covered by the
consideration of broader social values required by each species. Fire MSCP for exclusion and determined
for the species and their habitat, beyond management plans take neighboring that the benefits of excluding these
the more traditionally defined economic properties into account such that lands from critical habitat outweighs the
impacts, is not necessary as Congress application of prescribed burns or benefits of including them in the
has already clarified the social management of wildfires should occur designation. Therefore, we have
importance. in such a manner that would not excluded 133 ac (54 ha) of private lands
We note, as a practical matter, it is increase the risk to surrounding proposed as critical habitat for this
difficult to develop credible estimates of properties and development. As such, species from this final designation
such values, as they are not readily we do not believe it is appropriate to under section 4(b)(2) of the Act (see the
observed through typical market evaluate the cost of the potential loss of ‘‘Exclusions under Section 4(b)(2) of the
transactions and can only be inferred private property due to wildfire as a part Act’’ section of this final rule for further
through advanced, tailor-made studies of this designation. details).
that are time consuming and expensive 24. Comment: One commenter stated
to conduct. We lacked both the budget Critical Habitat
that the co-extensive costs projected in
and time needed to conduct such the draft economic analysis are Critical habitat is defined in section 3
research before meeting our court- unacceptable. of the Act as (i) The specific areas
ordered final rule deadline. In summary, Response: In 2001, the U.S. 10th within the geographical area occupied
we believe that Congress has placed Circuit Court of Appeals instructed the by a species, at the time it is listed in
significant value on conserving any and Service to conduct a full analysis of all accordance with the Act, on which are
all threatened and endangered species of the economic impacts of proposed found those physical or biological
and the habitats upon which they critical habitat designation, regardless of features (I) Essential to the conservation
depend, and the critical habitat whether those impacts are attributable of the species and (II) that may require
designation process under section 4 of co-extensively to other causes (New special management considerations or
the Act incorporates these values. Thus, Mexico Cattle Growers Ass’n v. USFWS, protection; and (ii) specific areas
although we limit the scope of the 248 F.3d 1277 (10th Cir. 2001)). The outside the geographical area occupied
economic analysis to economic impacts economic analysis for Ceanothus by a species at the time it is listed, upon
(both positive and negative), when we ophiochilus and Fremontodendron a determination that such areas are
consider whether it is appropriate to mexicanum is consistent with this essential for the conservation of the
exclude particular areas from critical direction from the U.S. 10th Circuit species. Conservation, as defined under
habitat under section 4(b)(2) of the Act, Court of Appeals. See response to section 3 of the Act, means to use and
we consider not just economic impacts, comment 21. the use of all methods and procedures
but all relevant impacts. In doing so, that are necessary to bring any
consistent with the value Congress has Summary of Changes From Proposed endangered species or threatened
placed on species preservation, Rule species to the point at which the
conservation benefits for the species at In preparing the final critical habitat measures provided under the Act are no
issue derived from the designation of designation for Ceanothus ophiochilus longer necessary. Such methods and
procedures include, but are not limited 554; H.R. 5658) and the associated planning efforts if new information
to, all activities associated with Information Quality Guidelines issued available to these planning efforts calls
scientific resources management such as by the Service, provide criteria, for a different outcome.
research, census, law enforcement, establish procedures, and provide
Primary Constituent Elements (PCEs)
habitat acquisition and maintenance, guidance to ensure that decisions made
propagation, live trapping, and by the Service represent the best In accordance with section 3(5)(A)(i)
transplantation, and, in the scientific data available. They require of the Act and regulations at 50 CFR
extraordinary case where population Service biologists, to the extent 424.12, in determining which areas to
pressures within a given ecosystem consistent with the Act and with the use designate as critical habitat within areas
cannot be otherwise relieved, may of the best scientific data available, to occupied by the species at time of
include regulated taking. use primary and original sources of listing, we consider those physical or
Critical habitat receives protection information as the basis for biological features (primary constituent
under section 7 of the Act through the recommendations to designate critical elements (PCEs)) that are essential to the
prohibition against destruction or habitat. When determining which areas conservation of the species, and may
adverse modification of critical habitat are critical habitat, a primary source of require special management
with regard to actions carried out, information is generally the listing considerations or protection. These
funded, or authorized by a Federal package for the species. Additional include, but are not limited to space for
agency. Section 7(a)(2) of the Act information sources may include the individual and population growth and
requires consultation on Federal actions recovery plan for the species, articles in for normal behavior; food, water, air,
that may affect critical habitat. The peer-reviewed journals, conservation light, minerals, or other nutritional or
designation of critical habitat does not plans developed by States and counties, physiological requirements; cover or
affect land ownership or establish a scientific status surveys and studies, shelter; sites for breeding, reproduction,
refuge, wilderness, reserve, preserve, or biological assessments, or other and rearing (or development) of
other conservation area. Such unpublished materials and expert offspring; and habitats that are protected
designation does not allow government opinion or personal knowledge. All from disturbance or are representative of
or public access to private lands. information is used in accordance with the historic geographical and ecological
Section 7(a)(2) of the Act is a purely the provisions of Section 515 of the distributions of a species.
protective measure and does not require Treasury and General Government Ceanothus ophiochilus
implementation of restoration, recovery, Appropriations Act for Fiscal Year 2001
or enhancement measures, nor does it (Pub. L. 106–554; H.R. 5658) and the The specific primary constituent
apply to private actions for which there associated Information Quality elements required for Ceanothus
is no involved Federal action. Guidelines issued by the Service. ophiochilus are derived from the
To be included in a critical habitat Section 4 of the Act requires that we biological and physical needs of the
designation, habitat within the designate critical habitat on the basis of species as described in the final listing
geographical area occupied by the the best scientific and commercial data rule (63 FR 54956, October 13, 1998),
species must first have features that are available. Habitat is often dynamic, and the proposed critical habitat rule (71 FR
essential to the conservation of the species may move from one area to 58340, October 3, 2006), and
species. Critical habitat designations another over time. Furthermore, we information contained in this final rule.
identify, to the extent known using the recognize that designation of critical Space for Growth and Reproduction
best scientific data available, habitat habitat may not include all of the
areas that provide essential life cycle habitat areas that may eventually be Ceanothus ophiochilus is restricted to
needs of the species (areas on which are determined to be necessary for the ridgetops and north to northeast facing
found the primary constituent elements, recovery of the species. For these slopes in chamise chaparral (PCE 1). It
as defined at 50 CFR 424.12(b)). reasons, critical habitat designations do occurs on soils formed from
Habitat occupied at the time of listing not signal that habitat outside the metavolcanic and ultra-basic parent
may be included in critical habitat only designation is unimportant or may not materials or deeply weathered gabbro
if the essential features thereon may be required for recovery. substrates, all of which are phosphorus
require special management Areas that support populations of deficient and thus considered to be
considerations or protection. Ceanothus ophiochilus and nutrient-poor (PCE 2) (Boyd et al. 1991,
Furthermore, when the best available Fremontodendron mexicanum, but are pp. 31, 37–38; Kennedy et al. 2000, p.
scientific data do not demonstrate that outside their respective critical habitat 1; and Kennedy and Mertz 2003, p. 1).
the conservation needs of the species designations, will continue to be subject These soils are similar to serpentine
require additional areas, we cannot to conservation actions implemented soils, which are well known for the high
designate critical habitat in areas under section 7(a)(1) of the Act and to number of associated rare and endemic
outside the geographical area occupied the regulatory protections afforded by plants (Kruckeberg 1984, pp.3–5, p. 34).
by the species at the time of listing. the section 7(a)(2) jeopardy standard, as The high number of rare and endemic
However, an area currently occupied by determined on the basis of the best plants that grow on nutrient-poor soils,
the species but not occupied at the time available information at the time of the sometimes termed as harsh soils, is due
of listing, will likely be essential to the action. Federally funded or permitted to the difficulty that common plants
conservation of the species and, projects affecting listed species outside have with growing in these conditions.
therefore, may be included in the their designated critical habitat areas In turn, when plants become established
critical habitat designation. may still result in jeopardy findings in on such soils, they remain genetically
The Service’s Policy on Information some cases. Similarly, critical habitat isolated from close relatives that are not
Standards Under the Endangered designations made on the basis of the able to thrive on the nutrient-poor soils.
Species Act, published in the Federal best available information at the time of In this way, these nutrient-poor soils
Register on July 1, 1994 (59 FR 34271), designation will not control the may help the species maintain
and Section 515 of the Treasury and direction and substance of future reproductive isolation (Boyd et al. 1991,
General Government Appropriations recovery plans, habitat conservation p. 37–38). This is important because C.
Act for Fiscal Year 2001 (Pub. L. 106– plans, or other species conservation ophiochilus hybridizes with the locally
common C. crassifolius in places where Primary Constituent Elements for slopes in a range of 9 to 70 percent
the two species grow in close proximity Ceanothus ophiochilus (USDA 1973, p. 76)) (PCE 1 and 2).
(Boyd et al. 1991, p. 37–38). Hybrids are Pursuant to the Act and its Fremontodendron mexicanum occurs at
generally found on the margins of C. implementing regulations, we are elevations of 900 ft (274 m) to 3,000 ft
ophiochilus occurrences, where the soil required to identify the known physical (914 m) in the United States (63 FR
changes from the harsh metavolcanic 54956); however, in Mexico, F.
or biological features (PCEs) within the
and gabbro soils that C. ophiochilus is mexicanum occurs at an elevation of
geographical area occupied at the time
typically found on to the milder approximately 30 ft (9 m). Erosion from
of listing that are essential to the
sedimentary soils that support species the steep slopes on Otay Mountain
conservation of Ceanothus ophiochilus,
such as C. crassifolius (Boyd et al. 1991, provides soils that form benches along
which may require special management
p. 37–38). Hybridization is a common the streambeds in Cedar Canyon and
considerations or protection. All areas
natural phenomenon among the species Little Cedar Canyon where F.
designated as critical habitat for C.
of Ceanothus genus (Schmidt 1993, p. mexicanum grows. Fremontodendron
ophiochilus are occupied, within the
935; Fross and Wilken 2006, pp. 131– mexicanum also occupies some areas on
species’ historical geographic range, and
149), and metavolcanic and gabbro soils slopes adjacent to the streambeds
contain sufficient PCEs to support at (Snapp-Cook 2006). In addition to
are important for growth and least one life history function. plants growing near the streambed,
reproduction of C. ophiochilus, as well Based on our current knowledge of plants observed on slopes adjacent to
as for space and separation from C. the life history, biology, and ecology of the streambeds were between 10 and
crassifolius, a species with which C. the species and the requirements of the 500 ft (3 and 152 m) from the streambed.
ophiochilus is known to hybridize. habitat to sustain the essential life Although the role that the plants on
Soils where Ceanothus ophiochilus is history functions of the species, we have sloped areas play in the dynamics of
found in the Agua Tibia Wilderness are determined the PCEs for Ceanothus growth and reproduction for this species
mapped as Ramona, Cienaba, and Vista ophiochilus are: is unknown at this time, the high
series (USDA 1973, pp. 38–40, 70–71, (1) Flat to gently sloping north to density of these plants suggests that
82–83), but appear to be Las Posas series northeast facing ridge tops with slopes they may play a significant role.
based on field review and soil samples in the range of 0 to 40 percent slope that Fremontodendron mexicanum is
(USFS 1998a). Soils where C. provide the appropriate solar exposure found growing within open stands of
ophiochilus is found at Vail Lake are for seedling establishment and growth; Cupressus forbesii (Tecate cypress),
(2) Soils formed from metavolcanic which often form a closed-cone
mapped as Cajalco series (USDA 1971,
and ultra-basic parent materials and coniferous forest, or is interspersed with
p. 21).
deeply weathered gabbro or pyroxenite- mixed chaparral and Platanus racemosa
Ceanothus ophiochilus is found in rich outcrops that provide nutrients and (sycamore) (PCE 3) (63 FR 54956,
chamise chaparral or mixed chamise- space for growth and reproduction. October 13, 1998). In addition to cypress
ceanothus-manzanita chaparral at Specifically in the areas that Ceanothus and sycamore, F. mexicanum is
elevations of 2,000 feet (ft) to 3,000 ft ophiochilus is found, the soils are: frequently associated with
(610 meters (m) to 914 m) (California (a) Ramona, Cienaba, Las Posas, and Dendromecon rigida ssp. rigida (tree
Department of Fish and Game 2000; Vista series in the Agua Tibia poppy) and Malosma laurina (laurel
California Natural Diversity Database Wilderness; and sumac) (Snapp-Cook 2006). The canyon
(CNDDB) 2005) with the following (b) Cajalco series in the vicinity of slopes around F. mexicanum are
associated species: Adenostoma Vail Lake; and generally vegetated with chaparral and
fasciculatum, A. sparsifolium, Quercus (3) Chamise chaparral or mixed coastal sage scrub species (63 FR 54956,
berberidifolia, C. crassifolius, chamise-ceanothus-arctostaphylos October 13, 1998). The mix of chaparral
Arctostaphylos spp. Salvia clevelandii, chaparral at elevations of 2,000 ft to and riparian species may provide
and Eriodictyon crassifolium (PCE 3) 3,000 ft (610 m to 914 m) that provide adequate shade and ground cover to
(Boyd and Banks 1995, p. 15). Within the appropriate canopy cover and exclude nonnative species, preventing
chaparral of southern Riverside County, elevation requirements for growth and such species from competing with F.
these associated species are much more reproduction. mexicanum (Snapp-Cook 2006).
common than C. ophiochilus. Fremontodendron mexicanum is a
Fremontodendron mexicanum
facultative resprouter, meaning it is able
We have little information about the
The specific primary constituent to sprout from underground roots after
pollinators or reproductive biology of elements required for Fremontodendron a fire, flood, or other disturbance
this species. This species is in the mexicanum are derived from the destroys the above-ground plant, and
subgenus Cerastes, and, like all biological and physical needs of the can also reproduce from seeds following
members of this subgenus, it is an species as described in the final listing a fire. This ability to repopulate an area
obligate seeding species and does not rule (63 FR 54956, October 13, 1998), using multiple strategies following a fire
have a burl (an underground mass from the proposed critical habitat (71 FR makes F. mexicanum more resilient to
which the species can resprout 58340, October 3, 2006), and short-interval fire than obligate seeders
following fire). Therefore, this species information contained in this final rule. (plants that can only reproduce from
requires fire to establish new seedlings. seed following a fire). For example an
However, if fire burns too frequently Space for Growth and Reproduction
obligate seeder like Tecate cypress
there is insufficient time for the plant to For its individual and population needs 6 to 30 years to produce sufficient
mature and establish a seed bank, growth, Fremontodendron mexicanum numbers of seeds to reproduce
placing populations at risk of
needs alluvial terraces and benches following a fire, whereas, F. mexicanum

extirpation (Keeley 2006, p. 367). The adjacent to moderately sloped streams, has the ability to begin replacing its
natural fire regime for the chaparral creeks, and ephemeral drainages; canopy with new basal sprouts
ecosystem is once every 20 to 50 years. stabilized northwest to northeast facing relatively quickly following a fire
Little information exists regarding the slopes associated with steep slopes (San (Keeley 1986). Other members of the
dispersal of this species. Miguel-Exchequer soil complex has Fremontodendron genus have a
structure on their seeds that attracts ants after peak seasonal rains with a gradient may affect the topography of the habitat
to disperse the seeds (Boyd 2001, p. 234; ranging from 3 to 7 percent; and and change the soil composition (PCEs
Keeley 1987, p. 443). This structure is stabilized northwest to northeast facing 1 and 2) rendering the habitat
a waxy orange protrusion growing at the slopes associated with steep (9 to 70 unsuitable for species growth and
base of each seed; it is called a percent) slopes that provide space for reproduction. Urban development may
‘‘caruncle’’ or an ‘‘elaiosome.’’ No growth and reproduction. also encourage invasion by nonnative
observations have been made that (2) Silty loam soils derived from plant species, changing the vegetation
indicate the presence of a caruncle on metavolcanic and metabasic bedrock, community and/or directly impacting
F. mexicanum; however, this should be mapped as San Miguel-Exchequer the vegetation community (PCE 3). In
investigated to learn if any similarities Association soil series that provide addition, urban development near this
exist between the various species of nutrients and substrate with adequate species may increase the frequency of
Fremontodendron that would provide drainage to support seedling fire. All identified private land is
information about how F. mexicanum’s establishment and growth. covered by the Western Riverside
seed is dispersed. More research is (3) Open Cupressus forbesii and County MSHCP (MSHCP), and those
needed into F. mexicanum’s Platanus racemosa stands at elevations lands have been excluded from the final
reproduction and the role that of 900 ft (274 m) to 3,000 ft (914 m) designation (see ‘‘Relationship of
pollination and seed production play in within a matrix of chaparral (such as Critical Habitat to Habitat Conservation
its survival. Dendromecon rigida ssp. rigida and Plan Lands—Exclusions Under Section
Malosma laurina) and riparian 4(b)(2) of the Act’’ section for a detailed
Hydrology and Soil Moisture vegetation that provide adequate space discussion). No urban development is
Requirements for the Species for growth and reproduction. expected to directly impact the
Fremontodendron mexicanum has The designation of critical habitat for occurrences of C. ophiochilus on land
been cultivated since its discovery in Ceanothus ophiochilus and owned by the USFS. Therefore, we do
the early 1900s, and the data available Fremontodendron mexicanum is not believe threats from urban
from the cultivation reports state that designed for the conservation of PCEs development would require special
this species does well in soils that are necessary to support the life history management considerations or
well drained (Bornstein et al. 2005). functions of each species and the areas protection of the PCEs on designated
Fremontodendron mexicanum grows on containing the PCEs for each species. critical habitat for this species.
terraces and alluvial benches that are Units are designated based on sufficient The management of both fire
maintained by a natural hydrological PCEs being present to support each frequency and the placement of fuel
cycle, which erodes the surrounding species’ life history functions. Each breaks is important for the conservation
metavolcanic soils on the slopes and critical habitat unit contains all of the of Ceanothus ophiochilus, and special
deposits those soils in the stream beds. PCEs and supports multiple life management considerations or
The natural hydrological cycle also processes for the species present in that protection of the PCEs for C.
maintains open and semi-open spaces unit. ophiochilus may be required on USFS
where F. mexicanum can establish lands to address potential threats posed
Special Management Considerations or
itself. The natural flows may also by fire management activities. In the
Protection
provide transportation of seeds down past, fuel breaks have been placed on
stream to establish and augment When designating critical habitat, we the ridgelines (PCE 1) in C. ophiochilus
downstream occurrences. assess whether the areas determined to habitat and have caused soil disturbance
be occupied at the time of listing (PCE 2). Studies of fuel breaks in the
Primary Constituent Elements for contain the primary constituent Cleveland National Forest near the
Fremontodendron mexicanum elements that may require special critical habitat designation have
Pursuant to the Act and its management considerations or demonstrated an increase in the density
implementing regulations, we are protection. of competing nonnative species
required to identify the known physical As stated in the final listing rule, (Merriam et al. 2007, p. 48), and it has
and biological features (PCEs) within threats to Ceanothus ophiochilus been hypothesized that fuel breaks
the geographical area occupied at the include habitat destruction, alteration, promote the introduction and spread of
time of listing that are essential to the fragmentation, and degradation from nonnative plants (Merriam et al. 2007,
conservation of Fremontodendron urban development, as well as p. vi). These nonnative invasive plants
mexicanum, which may require special hybridization and fire at too frequent alter local fuel conditions and change
management considerations or intervals to allow for sufficient seed fire behavior and frequency (Merriam et
protections. All areas designated as bank replenishment in the soil (63 FR al. 2007, p. 61). Ceanothus ophiochilus
critical habitat for F. mexicanum are 54956, October 13, 1998). Threats to is very sensitive to short-interval fires,
occupied, within the species’ historic Fremontodendron mexicanum as cited which may extirpate the species from a
geographic range, and contain sufficient in the final listing rule include altered site entirely (Keeley 2006, p. 367). Soil
PCEs to support at least one life history fire regimes, indirect impacts from disturbance, caused by the creation of
function. nearby urbanization, and increased fuel breaks, has also led to increased
Based on our current knowledge of competition from nonnative species (63 hybridization between Ceanothus
the life history, biology, and ecology of FR 54965, October 13, 1998). These ophiochilus and C. crassifolius.
the species and the requirements of the threats could impact the PCEs However, the degree to which
habitat to sustain the essential life determined to be essential for hybridization is impacting C.
history functions of the species, we have conservation of C. ophiochilus and F. ophiochilus and its habitat is not yet
determined the PCEs for mexicanum. known.

Fremontodendron mexicanum are: Urban development near Ceanothus Fremontodendron mexicanum does
(1) Alluvial terraces, benches, and ophiochilus critical habitat units may not face direct threats from urban
associated slopes within 500 ft (152 m) alter the habitat characteristics required development; however, the PCEs for this
of streams, creeks, and ephemeral by the species. Land grading in and species may require special
drainages where water flows primarily around occurrences of C. ophiochilus management considerations or
protection to address the threat from we connected the polygons that were section 4(b)(2) of the Act in this final
nonnative species. Nonnative plant closer than 0.6 mi (1 km) to reduce designation (please see ‘‘Exclusions
species such as Tamarix spp. (salt fragmentation and ensure that the under Section 4(b)(2) of the Act’’ for a
cedar) and Cortaderia selloana (Pampas subunits captured populations and not detailed discussion).
grass) could reduce the amount of space individual occurrences. The MSHCP and MSCP documents
available to F. mexicanum (PCE 1 and To delineate the critical habitat for were used as aids in determining areas
2) and alter the vegetation community Fremontodendron mexicanum, we used that contain the features essential to the
(PCE 3) if they become well established the following criteria: (1) We identified conservation of these two species. No
in either Cedar Canyon or Little Cedar all areas, except one (see below), areas outside the geographical area
Canyon. In addition, the PCEs for this occupied by native occurrences (we did occupied at the time of listing by
species may require special not include occurrences known to be of Ceanothus ophiochilus or
management considerations or cultivated origin) of F. mexicanum at Fremontodendron mexicanum were
protection to address negative impacts the time of listing and/or currently included in this final designation.
related to fire fighting activities. Fire occupied using current data in the When determining critical habitat
fighting activities may alter the alluvial California Natural Diversity Database boundaries within this final rule, we
terraces and benches that F. mexicanum (CNDDB) (2005) and data obtained from made every effort to avoid including
grows on (PCE #1) if activities occur field surveys (Snapp–Cook 2006); (2) we developed areas such as buildings,
directly in the streambed adjacent to created GIS polygons, using these areas paved areas, and other structures that
where F. mexicanum occurs. Special as guides, that included the alluvial lack PCEs for Ceanothus ophiochilus
management may be needed to insure terraces and benches occupied by F. and Fremontodendron mexicanum. The
that fire fighting activities do not alter mexicanum, and the associated slopes scale of the maps prepared under the
these areas or that measures are in place within 500 ft (152 m) of the areas parameters for publication within the
to restore damage to habitat after the occupied by F. mexicanum to insure Code of Federal Regulations may not
activities occur. Likewise, future fuel that adequate space was delineated to reflect the exclusion of such developed
breaks should be designed such that encompass all existing F. mexicanum areas. Any such structures and the land
they do not create situations were extra identified in the CNDDB and in field under them inadvertently left inside
run off is channeled into the canyons surveys conducted prior to the critical habitat boundaries shown on the
thus increasing the scouring that occurs publication of the proposed critical maps of this final rule have been
in the creek bottoms and eroding the habitat (71 FR 58340, October 3, 2006); excluded by text in the final rule and
terraces and benches where F. and (3) we connected the polygons that are not designated as critical habitat.
mexicanum grows (PCE #1). were closer than 0.5 mi (0.8 km) from Therefore, Federal actions limited to
In our unit descriptions for this one another with a 660 ft (201 m) wide these areas would not trigger section
designation, we further describe the corridor to allow for connectivity 7(a)(2) consultations, unless they may
threats requiring special management between known occurrences for the affect the species or primary constituent
considerations or protection for each transfer of pollen and seeds and to allow elements in adjacent critical habitat.
subunit. for natural riparian process to occur. A brief discussion of each area
The recently rediscovered occurrence of designated as critical habitat is provided
Criteria Used To Identify Critical F. mexicanum on Otay Mountain in the unit descriptions below.
Habitat (Snapp–Cook 2007, p. 1) discussed Additional detailed documentation
As required by section 4(b)(1)(A) of above in the ‘‘Distribution’’ section was concerning the essential nature of these
the Act, we use the best scientific data not included in the delineation because areas is contained in our supporting
available in determining areas that the Service was not aware of its record for this rulemaking.
contain the features essential to the existence at the time of the proposed
conservation of Ceanothus ophiochilus critical habitat rule, and the significance Critical Habitat Designation
or Fremontodendron mexicanum. of this rediscovered population and its We are designating approximately 203
Recovery of Ceanothus ophiochilus and impact on designated critical habitat ac (82 ha) of federally-owned land as
Fremontodendron mexicanum will will need to be further evaluated by the critical habitat for Ceanothus
require conservation of all populations Service. Appropriate action, if any, will ophiochilus and approximately 228 ac
identified in the proposed critical be addressed in a future rulemaking. (93 ha) of federally-owned land as
habitat rule. Both these species are We analyzed all areas meeting the critical habitat for Fremontodendron
narrow endemics with few populations criteria used to identify critical habitat mexicanum. Table 1 provides the
and all populations may be important for both species to determine if any approximate area (ac/ha) determined to
for redundancy and resilience of these existing conservation or management meet the definition of critical habitat for
two narrow-ranging species. plans exist that benefit either species C. ophiochilus and F. mexicanum, the
To delineate the critical habitat for and/or their respective PCEs. We areas being excluded from final critical
Ceanothus ophiochilus, we used the determined that the Western Riverside habitat designation under section 4(b)(2)
following criteria: (1) We identified all County MSHCP benefits the of the Act (please see ‘‘Exclusions under
areas occupied by C. ophiochilus at the conservation of Ceanothus ophiochilus Section 4(b)(2) of the Act’’ for a detailed
time of listing and/or currently and that the San Diego MSCP benefits discussion), and the areas being
occupied using the location data from the conservation of Fremontodendron designated as critical habitat.
Boyd and Banks (1995); (2) we created mexicanum. We also determined that Areas proposed as critical habitat for
GIS (Geographic Information System) the benefits of excluding these areas Ceanothus ophiochilus and
polygons, using these areas as guides, outweighed the benefits of including Fremontodendron mexicanum, areas
that included the occurrences and the these areas in the critical habitat excluded from the final critical habitat
ridge tops and north- and northeast- designation. Therefore, approximately designation under section 4(b)(2) of the
facing slopes immediately adjacent 213 ac (87 ha) of private lands occupied Act, and areas designated as final
(within 500 ft (152 m)) to the by these species covered by the MSHCP critical habitat (acres (ac)/hectares (ha))
occurrences of C. ophiochilus; and (3) or MSCP have been excluded under are shown in Table 1.
TABLE 1
Areas excluded under
Proposed critical habi- Final critical
Critical habitat unit Land ownership section 4(b)(2) of the
tat (71 FR 58340) habitat
Act
Ceanothus ophiochilus:
1. Western Riverside County
1A. Vail Lake ........................................ Private ......................... 76 ac (31 ha) .............. 76 ac (31 ha) .............. 0 ac (0 ha).
1B. Agua Tibia Mountains .................... USFS* ......................... 203 ac (82 ha) ............ 0 ac (0 ha) .................. 203 ac (82 ha).
Private ......................... 4 ac (2 ha) .................. 4 ac (2 ha) .................. 0 ac (0 ha).
Total .............................................. ................................. 283 ac (115 ha) ........... 80 ac (33 ha) .............. 203 ac (82 ha).
Fremontodendron mexicanum:
1. Otay Mountain
1A. Cedar Canyon ............................... BLM* ........................... 145 ac (59 ha) ............ 0 ac (0 ha) .................. 145 ac (59 ha).
Private ......................... 114 ac (46 ha) ............ 114 ac (46 ha) ............ 0 ac (0 ha).
1B. Little Cedar Canyon ....................... BLM* ........................... 83 ac (34 ha) .............. 0 ac (0 ha) .................. 83 ac (34 ha).
Private ......................... 19 ac (8 ha) ................ 19 ac (8 ha) ................ 0 ac (0 ha).
Total .............................................. ................................. 361 ac (147 ha) ........... 133 ac (54 ha) ............ 228 ac (93 ha).
*USFS = U.S. Forest Service; BLM = Bureau of Land Management.
Below we present brief descriptions of Ceanothus ophiochilus, both known at features essential to the conservation of
all units, and reasons why they meet the the time of listing. The PCEs within this C. ophiochilus as critical habitat for this
definition of critical habitat for subunit may require special species.
Ceanothus ophiochilus and management considerations or
Fremontodendron mexicanum. protection to address the threats posed Critical Habitat Designation for
by short-interval fires, competing Fremontodendron mexicanum
Critical Habitat Designation for nonnative species, impacts to ridge tops
Ceanothus ophiochilus We are designating 228 ac (93 ha) of
(PCE 1) from grading associated with the
land as critical habitat for
We are designating 203 ac (82 ha) of creation of fuel breaks and impacts to
the associated vegetation community Fremontodendron mexicanum within
land as critical habitat for Ceanothus
ophiochilus within a single unit. In the (PCE 3) resulting from unnatural fire one unit on Otay Mountain in southern
proposed critical habitat, this unit was regimes. Subunit 1B is entirely within San Diego County. This unit contains
divided into two subunits: Subunits 1A the Agua Tibia Wilderness of the land managed by the Bureau of Land
(Vail Lake) and 1B (Agua Tibia Cleveland National Forest. Management (BLM) within the Otay
Mountains). We excluded all of subunit Recently the USFS completed the Mountain Wilderness Area (Otay
1A (76 ac (31 ha)) and a portion of LMP for the Four Southern California Mountain Wilderness Act of 1999, Pub.
subunit 1B (4 ac (2 ha)) under section National Forests. Implementation of the L. 106–145, H.R. 15). This unit is further
4(b)(2) of the Act from the final LMP was analyzed by the Service to divided into two subunits. Subunit 1A
designation of critical habitat for C. address potential impacts to Ceanothus (Cedar Canyon) and subunit 1B (Little
ophiochilus (please see the ‘‘Exclusions ophiochilus. This analysis found that Cedar Canyon) are each separate
under Section 4(b)(2) of the Act’’ impacts to C. ophiochilus would be canyons on the northwest portion of
section). Therefore, only the lands in minor or negligible upon Otay Mountain. All 133 ac (54 ha) of
subunit 1B designated as final critical implementation of appropriate private land in Unit 1 proposed as
habitat are discussed below. minimization measures due to the low- critical habitat (71 FR 58340, October 3,
impact nature of activities planned (e.g., 2006) have been excluded from this
Unit 1: Western Riverside County dispersed recreation, non-motorized final designation under section 4(b)(2)
Unit 1 is located near Vail Lake in trails) (Service 2005 p. 129–132). of the Act (please see ‘‘Exclusions under
southern Riverside County, California. However, the LMP does not identify Section 4(b)(2) of the Act’’ for a detailed
The area was occupied at the time of specific management measures to discussion).
listing and contains all of the primary address the threat posed by short-
constituent elements essential to the interval fires and by competing The critical habitat described below
conservation of the species that may nonnative species (Keeley 2006, p. 367; constitutes our best assessment of
require special management Merriam et al. 2007, p. vi, v, 48, 61). specific areas determined to be
considerations or protection for Because the USFS does not have a occupied at the time of listing,
Ceanothus ophiochilus. Below, we management plan specific to C. containing the primary constituent
present a brief description of subunit ophiochilus that provides the same or elements essential to the conservation of
1B, reasons why it meets the definition better level of protection from adverse the species that may require special
of critical habitat for C. ophiochilus, and modification or destruction than that management considerations or
our rationale for our final designation of provided through a consultation under protection for Fremontodendron
critical habitat. section 7 of the Act, we have mexicanum.
determined that exclusion of these lands Below, we present brief descriptions
Subunit 1B, Agua Tibia Mountains, from the final designation of critical
Riverside County, California of the critical habitat subunits, reasons
habitat pursuant to section 4(b)(2) of the

why they meet the definition of critical
Subunit 1B (Agua Tibia Mountains) Act is not appropriate for these Federal
habitat for Fremontodendron
consists of 203 ac (82 ha) of land which lands (please see ‘‘Exclusions under
is managed by the USFS. Subunit 1B Section 4(b)(2) of the Act’’ for a detailed mexicanum, and our rationale for their
contains two of the three CNDDB discussion). Therefore, we are designation as critical habitat.
element occurrences (2 and 3) of designating the USFS lands containing
Subunit 1A, Cedar Canyon, Otay (Snapp-Cook 2006), the Little Cedar because of the section 7(a)(2)
Mountain, San Diego County, California Canyon occurrence will help to stabilize compliance process, if we list those
Subunit 1A, Cedar Canyon, consists of the existence of F. mexicanum in the species or designate critical habitat. We
145 ac (59 ha) of public land managed United States and the discovery of F. may conduct conferences either
by the BLM. Subunit 1A contains mexicanum in Little Cedar Canyon informally or formally. We typically use
CNDDB element occurrences 1, 13, and almost doubles the amount of known informal conferences as a means of
16. Land in this subunit is entirely occupied habitat for this species in the providing advisory conservation
within the Cedar Canyon Area of United States. The PCEs in this subunit recommendations to assist the agency in
Critical Environmental Concern (ACEC) may require special management eliminating conflicts that the proposed
and a Research Natural Area (RNA) considerations or protection to action may cause. We typically use
(BLM 1994, pp. 1, 19, 22). The BLM has minimize impacts related to fire fighting formal conferences when we or the
not yet developed a specific activities and to the invasion of Federal agency believes the proposed
management plan that outlines how the nonnative species that may affect the action is likely to jeopardize the
species will be managed in the Cedar space available for this species (PCE 1, continued existence of the species
Canyon ACEC and RNA. This subunit 2, and 3). proposed for listing or adversely modify
was occupied at the time of listing and proposed critical habitat.
Effects of Critical Habitat Designation
contains all of the features essential to We generally provide the results of an
the conservation of the species. In 1998, Section 7 Consultation informal conference in a conference
when Fremontodendron mexicanum Section 7 of the Act requires Federal report, while we provide the results of
was federally listed, less than 100 agencies, including the Service, to a formal conference in a conference
individual plants were documented ensure that actions they fund, authorize, opinion. We typically prepare
from Cedar Canyon. This occurrence or carry out are not likely to destroy or conference opinions on proposed
was thought to be the only location adversely modify critical habitat. species or critical habitat in accordance
where F. mexicanum occurred naturally Decisions by the 5th and 9th Circuit with procedures contained at 50 CFR
in the United States. Prior to the 2003 Court of Appeals have invalidated our 402.14, as if the proposed species were
Otay fire, the canyon was dominated by definition of ‘‘adversely modify’’ (see already listed or the proposed critical
Cupressus forbesii (Tecate cypress) and Gifford Pinchot Task Force v. U.S. Fish habitat was already designated. We may
riparian vegetation. In late 2005 and and Wildlife Service, 378 F. 3d 1059 adopt the conference opinion as the
early 2006 when this canyon was (9th Cir. 2004) and Sierra Club v. U.S. biological opinion when the species is
surveyed for F. mexicanum by Service Fish and Wildlife Service et al., 245 F.3d listed or the critical habitat is
biologists, over 1,000 plants were found 434, 442F (5th Cir. 2001)), and we do designated, if no substantial new
(Snapp-Cook 2006). This increase in the not rely on this regulatory definition information or changes in the action
number of plants may be a result of the when analyzing whether an action is alter the content of the opinion (see 50
2003 Otay fire that burned Cedar likely to destroy or adversely modify CFR 402.10(d)).
Canyon as this species is a facultative critical habitat. Under the statutory If a species is listed or critical habitat
resprouter (i.e., resprouts and produces provisions of the Act, we determine is designated, section 7(a)(2) of the Act
seedlings after fire). The phenomenon of destruction or adverse modification on requires Federal agencies to ensure that
F. mexicanum resprouting following fire the basis of whether, with activities they authorize, fund, or carry
was also recorded following a 1979 fire implementation of the proposed Federal out are not likely to jeopardize the
in Cedar Canyon (CNDDB 2005 p. 1). action, the affected critical habitat continued existence of the species or to
The PCEs in this subunit may require would remain functional (or retain the destroy or adversely modify its critical
special management considerations or current ability for the primary habitat. If a Federal action may affect a
protection to address negative impacts constituent elements to be functionally listed species or its critical habitat, the
related to fire fighting activities (PCE 1) established) to serve its intended responsible Federal agency (action
and negative impacts from the growth of conservation role for the species. agency) must enter into consultation
nonnative species that may affect the Section 7(a)(4) of the Act requires with us. As a result of this consultation,
space available for this species (PCE 1, Federal agencies to confer with the we document compliance with the
2, and 3). Service on any action that is likely to requirements of section 7(a)(2) through
jeopardize the continued existence of a our issuance of:
Subunit 1B, Little Cedar Canyon, Otay species proposed for listing or result in (1) A concurrence letter for Federal
Mountain, San Diego County, California destruction or adverse modification of actions that may affect, but are not
Subunit 1B, Little Cedar Canyon, proposed critical habitat. This is a likely to adversely affect, listed species
consists of 83 ac (34 ha) of public land procedural requirement only, as any or critical habitat; or
managed by the BLM. Little Cedar conservation recommendations in a (2) A biological opinion for Federal
Canyon is located approximately 1.9 mi conference report or opinion are strictly actions that may affect, and are likely to
(3 km) to the west of Cedar Canyon. The advisory. However, once a species adversely affect, listed species or critical
land in this subunit is part of the Otay proposed for listing becomes listed, or habitat.
Mountain Wilderness Area. This site proposed critical habitat is designated When we issue a biological opinion
was not discovered until after the as final, the full prohibitions of section concluding that a project is likely to
species was listed; however, we believe 7(a)(2) apply to any discretionary jeopardize the continued existence of a
that it was occupied at the time of Federal action. listed species or destroy or adversely
listing. Thirty-one healthy plants were The primary utility of the conference modify critical habitat, we also provide
documented in Little Cedar Canyon in procedures is to allow a Federal agency reasonable and prudent alternatives to
the summer of 2006, and evidence of to maximize its opportunity to the project, if any are identifiable. We
mature seed was detected (Martin 2006). adequately consider species proposed define ‘‘Reasonable and prudent
Although this occurrence is small when for listing and proposed critical habitat alternatives’’ at 50 CFR 402.02 as
compared to the more than 1,000 plants and to avoid potential delays in alternative actions identified during
observed in Cedar Canyon in early 2006 implementing its proposed action, consultation that:
• Can be implemented in a manner Federal action, the affected critical increased presence of nonnative species
consistent with the intended purpose of habitat would continue to serve its could also change the fire regime as
the action, intended conservation role for the mentioned above or could alter the soil
• Can be implemented consistent species, or would retain its current composition.
with the scope of the Federal agency’s ability for the primary constituent We consider all of the units
legal authority and jurisdiction, elements to be functionally established. designated as critical habitat, as well as
• Are economically and Activities that may destroy or adversely those that have been excluded, to
technologically feasible, and modify critical habitat are those that contain features essential to the
• Would, in the Director’s opinion, alter the PCEs to an extent that conservation of Ceanothus ophiochilus
avoid jeopardizing the continued appreciably reduces the conservation and Fremontodendron mexicanum. All
existence of the listed species or value of critical habitat for Ceanothus subunits are within the geographic
destroying or adversely modifying ophiochilus or Fremontodendron range of each species, respectively, and
critical habitat. mexicanum. Generally, the conservation were occupied at the time of listing. All
Reasonable and prudent alternatives role of Ceanothus ophiochilus or of the subunits are currently occupied.
can vary from slight project Fremontodendron mexicanum critical Federal agencies already consult with us
modifications to extensive redesign or habitat units is to support viable core on activities in areas occupied by these
relocation of the project. Costs area populations. species, or if either species may be
associated with implementing a Section 4(b)(8) of the Act requires us affected by the action, to ensure that
reasonable and prudent alternative are to briefly evaluate and describe, in any their actions do not jeopardize the
similarly variable. proposed or final regulation that continued existence of C. ophiochilus
Regulations at 50 CFR 402.16 require designates critical habitat, those and F. mexicanum.
Federal agencies to reinitiate activities involving a Federal action that
consultation on previously reviewed Application of Section 4(b)(2) of the Act
may destroy or adversely modify such
actions in instances where we have habitat, or that may be affected by such Section 4(b)(2) of the Act states that
listed a new species or subsequently designation. the Secretary must designate and revise
designated critical habitat that may be Activities that, when carried out, critical habitat on the basis of the best
affected and the Federal agency has funded, or authorized by a Federal available scientific data after taking into
retained discretionary involvement or agency, may affect critical habitat and, consideration the economic impact,
control over the action (or the agency’s therefore, should result in consultation national security impact, and any other
discretionary involvement or control is for Ceanothus ophiochilus or relevant impact, of specifying any
authorized by law). Consequently, some Fremontodendron mexicanum include, particular area as critical habitat. The
Federal agencies may request but are not limited to: Secretary may exclude an area from
reinitiation of consultation with us on (1) Actions that would directly impact critical habitat if he determines that the
actions for which formal consultation Ceanothus ophiochilus and benefits of such exclusion outweigh the
has been completed, if those actions Fremontodendron mexicanum habitat benefits of specifying such area as part
may affect subsequently listed species and their primary constituent elements. of the critical habitat, unless he
or designated critical habitat. Such activities could include, but are determines, based on the best scientific
Federal activities that may affect not limited to, road grading, streambed data available, that the failure to
Ceanothus ophiochilus or clearing, the creation of fuel breaks, and designate such area as critical habitat
Fremontodendron mexicanum and/or grading near these occurrences. These will result in the extinction of the
their respective designated critical activities could change the physical and species. In making that determination,
habitat require consultation under biological features of the habitat by the legislative history is clear that the
section 7 of the Act. Activities on State, affecting the topography of the site; Secretary has broad discretion regarding
Tribal, local, or private lands requiring removing soil and associated species; which factor(s) to use and how much
a Federal permit (such as a permit from burying the appropriate soil for these weight to give to any factor.
the U.S. Army Corps of Engineers under species, making it unavailable for Under section 4(b)(2) of the Act, in
section 404 of the Clean Water Act (33 species growth and/or reproduction; or considering whether to exclude a
U.S.C. 1251 et seq.) or a permit from us encouraging invasion by nonnative particular area from the designation, we
under section 10 of the Act from the plant species; must identify the benefits of including
Service or involving some other Federal (2) Actions that would alter fire the area in the designation, identify the
action (such as funding from the Federal frequency in the areas occupied by benefits of excluding the area from the
Highway Administration, Federal Ceanothus ophiochilus. Such activities designation, and determine whether the
Aviation Administration, or the Federal could include, but are not limited to, benefits of exclusion outweigh the
Emergency Management Agency) are prescribed burns. These activities could benefits of inclusion. If we consider
also subject to the section 7(a)(2) alter the soil composition by increasing excluding an area, then we must
consultation process. Federal actions the nutrients in the soil; and determine whether excluding the area
not affecting listed species or critical (3) Actions that would increase the would result in the extinction of the
habitat, and actions on State, Tribal, presence of nonnative species. Such species. In the following sections, we
local, or private lands that are not activities could include, but are not address a number of general issues that
federally funded, authorized, or limited to, seeding areas with nonnative are relevant to the exclusions we have
permitted, do not require section 7(a)(2) species following a fire and made. In addition, the Service has
consultations. inadvertently introducing nonnative conducted an economic analysis of the
seed via machinery, vehicles, and field impacts of the proposed critical habitat
Application of the Adverse Modification
gear. These activities could reduce the designation and related factors, which
Standard for Actions Involving Effects ability of these two species to grow and was made available for public review
To the Critical Habitat produce seed because the nonnative and comment on April 5, 2007 (72 FR
The key factor related to the adverse species may crowd out or otherwise 16756). Based on public comment
modification determination is whether, compete with Ceanothus ophiochilus which provided specific information
with implementation of the proposed and Fremontodendron mexicanum. An about private lands being proposed for
designation for Fremontodendron designation of private lands itself does enhancement or recovery as the
mexicanum, areas in addition to those not restrict any actions that destroy or management standard may often
proposed for exclusion in the proposed adversely modify critical habitat. provide as much or more benefit than a
critical habitat rule have been excluded Second, the designation only limits consultation for critical habitat
from critical habitat by the Secretary destruction or adverse modification. By designation conducted under the
under the provisions of section 4(b)(2) its nature, the prohibition on adverse standards required by the Ninth Circuit
of the Act. This is provided for in the modification is designed to ensure no in the Gifford Pinchot decision.
Act and in our implementing degradation of those areas containing In providing the framework for the
regulations at 50 CFR 424.19. the physical and biological features consultation process, the previous
essential to the conservation of the section applies to all the following
Benefits of Designating Critical Habitat species or of those unoccupied areas discussions of benefits of inclusion or
Regulatory Benefits that are essential to the conservation of exclusion of critical habitat.
the species. Critical habitat designation Educational Benefits
The consultation provisions under
alone, however, does not require
section 7(a)(2) of the Act constitute the A benefit of including lands in critical
property owners to undertake specific
regulatory benefits of critical habitat. As habitat is that the designation of critical
steps toward recovery of the species.
discussed above, Federal agencies must Once an agency determines that habitat serves to educate landowners,
consult with us on actions that may consultation under section 7(a)(2) of the State and local governments, and the
affect critical habitat and must avoid Act is necessary, the process may public regarding the potential
destroying or adversely modifying conclude informally when we concur in conservation value of an area. This
critical habitat. Prior to our designation writing that the proposed Federal action helps focus and promote conservation
of critical habitat, Federal agencies must is not likely to adversely affect critical efforts by other parties by clearly
consult with us on actions that may habitat. However, if we determine delineating areas of high conservation
affect a listed species and must refrain through informal consultation that value for Ceanothus ophiochilus and
from undertaking actions that are likely adverse impacts are likely to occur, then Fremontodendron mexicanum. In
to jeopardize the continued existence of we would initiate formal consultation, general, critical habitat designation
such species. Thus the analysis of which would conclude when we issue always has educational benefits;
effects to critical habitat is a separate a biological opinion on whether the however, in some cases, they may be
and different analysis from that of the proposed Federal action is likely to redundant with other educational
effects to the species. Therefore, the result in destruction or adverse effects. For example, HCPs have had
difference in outcomes of these two modification of critical habitat. significant public input during their
analyses represents the regulatory For critical habitat, a biological development, which may largely
benefit of critical habitat. For some opinion that concludes in a duplicate the educational benefit of a
species, and in some locations, the determination of no destruction or critical habitat designation. A second
outcome of these analyses will be adverse modification may contain benefit of including lands in critical
similar, because effects on habitat will discretionary conservation habitat is that the designation of critical
often also result in effects on the recommendations to minimize adverse habitat would inform State agencies and
species. However, the regulatory effects to primary constituent elements, local governments about areas that
standard is different; the jeopardy but it would not suggest the could be conserved under State laws or
analysis looks at the action’s impact on implementation of any reasonable and local ordinances.
survival and recovery of the species, prudent alternative. We suggest Recovery Benefits
while the adverse modification analysis reasonable and prudent alternatives to
looks at the action’s effects on the the proposed Federal action only when The process of designating critical
designated habitat’s contribution to the our biological opinion results in an habitat as described in the Act requires
species’ conservation. This will, in adverse modification conclusion. that the Service identify those lands on
many instances, lead to different results, We believe that in many instances the which are found the physical or
and different regulatory requirements. regulatory benefit of critical habitat is biological features essential to the
For 30 years prior to the Ninth low when compared to voluntary conservation of the species and which
Circuit’s decision in Gifford Pinchot, we conservation efforts or management may require special management
combined the jeopardy standard with plans. The conservation achieved considerations or protection. In
the standard for destruction or adverse through implementing HCPs or other identifying those lands, the Service
modification of critical habitat when habitat management plans can be greater must consider the recovery needs of the
evaluating Federal actions that affected than what we achieve through multiple species, such that the habitat that is
occupied critical habitat. However, the site-by-site, project-by-project, section identified, if managed, could provide for
court of appeals ruled that the two 7(a)(2) consultations involving the survival and recovery of the species.
standards are distinct and that adverse consideration of critical habitat. Furthermore, once critical habitat has
modification evaluations require Management plans may commit been designated, Federal agencies must
consideration of impacts on species resources to implement long-term consult with the Service under section
recovery. Thus, critical habitat management and protection to 7(a)(2) of the Act to ensure that their
designations may provide greater particular habitat for at least one and actions will not adversely modify
benefits to the recovery of a species than possibly additional listed or sensitive designated critical habitat or jeopardize
would listing alone. species. Section 7(a)(2) consultations the continued existence of the species.
There are two limitations to the commit Federal agencies to preventing As noted in the Ninth Circuit’s Gifford
regulatory effect of critical habitat. First, adverse modification of critical habitat Pinchot decision, the Court ruled that
a consultation is required only where caused by the particular project only, the jeopardy and adverse modification
there is a Federal nexus (an action and not to providing conservation or standards are distinct, and that adverse
authorized, funded, or carried out by long-term benefits to areas not affected modification evaluations require
any Federal agency). If there is no by the proposed project. Thus, any HCP consideration of impacts to the recovery
Federal nexus, the critical habitat or management plan that considers of species. Thus, through the section
7(a)(2) consultation process, critical inclusion and exclusion of critical (under certain circumstances) have
habitat designations provide recovery habitat. unintended negative consequences for
benefits to species by ensuring that the conservation of species on private
Conservation Partnerships on Non-
Federal actions will not destroy or lands (Wilcove et al. 1996; Bean 2002;
Federal Lands
adversely modify designated critical Conner and Mathews 2002; James 2002;
habitat. Most federally listed species in the Koch 2002; Brook et al. 2003). Many
It is beneficial to identify those areas United States will not recover without landowners fear a decline in their
that are necessary for the conservation the cooperation of non-Federal property value due to real or perceived
of the species and that, if managed landowners. More than 60 percent of the restrictions on land-use options where
appropriately, would further recovery United States is privately owned threatened or endangered species are
measures for the species. The process of (National Wilderness Institute 1995, p. found. Consequently, harboring
proposing and finalizing a critical 2), and at least 80 percent of endangered endangered species is viewed by many
habitat rule provides the Service with or threatened species occur either landowners as a liability. This
the opportunity to identify the physical partially or solely on private lands perception results in anti-conservation
or biological features essential for (Crouse et al. 2002, p. 720). Stein et al. incentives, because maintaining habitats
conservation of the species within the (1995, p. 400) found that only about 12 that harbor endangered species
geographical area occupied by the percent of listed species were found represents a risk to future economic
species at the time of listing, as well as almost exclusively on Federal lands (90 opportunities (Main et al. 1999; Brook et
to determine other areas essential to the to 100 percent of their known al. 2003).
conservation of the species. The occurrences restricted to Federal lands) According to some researchers, the
designation process includes peer and that 50 percent of federally listed designation of critical habitat on private
review and public comment on the species are not known to occur on lands significantly reduces the
identified features and areas. This Federal lands at all. likelihood that landowners will support
process is valuable to land owners and Given the distribution of listed and carry out conservation actions
managers in developing conservation species with respect to land ownership, (Main et al. 1999; Bean 2002; Brook et
management plans for identified areas, conservation of listed species in many al. 2003). The magnitude of this
as well as any other occupied habitat or parts of the United States is dependent outcome is greatly amplified in
suitable habitat that may not have been upon working partnerships with a wide situations where active management
included in the Service’s determination variety of entities and the voluntary measures (such as reintroduction, fire
of essential habitat. cooperation of many non-Federal management, control of invasive
However, the designation of critical landowners (Wilcove and Chen 1998; species) are necessary for species
habitat does not require that any Crouse et al. 2002; James 2002). conservation (Bean 2002). We believe
management or recovery actions take Building partnerships and promoting that the judicious use of excluding
place on the lands included in the voluntary cooperation of landowners are specific areas of non-federally owned
designation. Even in cases where essential to our understanding the status lands from critical habitat designations
consultation has been initiated under of species on non-Federal lands, and can contribute to species recovery and
section 7(a)(2) of the Act, the end result necessary for us to implement recovery provide a superior level of conservation
of consultation is to avoid jeopardy to actions such as reintroducing listed than critical habitat alone.
the species and adverse modification of species and restoring and protecting The purpose of designating critical
its critical habitat, but not specifically to habitat. habitat is to contribute to the
manage remaining lands or institute Many non-Federal landowners derive conservation of threatened and
recovery actions on remaining lands. satisfaction from contributing to endangered species and the ecosystems
Conversely, management plans institute endangered species recovery. We upon which they depend. The outcome
proactive actions over the lands they promote these private-sector efforts of the designation, triggering regulatory
encompass to remove or reduce known through the Department of the Interior’s requirements for actions funded,
threats to a species or its habitat and, Cooperative Conservation philosophy. authorized, or carried out by Federal
therefore, in doing so, may implement Conservation agreements with non- agencies under section 7(a)(2) of the
recovery actions. We believe that the Federal landowners (HCPs, safe harbor Act, can sometimes be
conservation benefits to a species and agreements, other conservation counterproductive to its intended
its habitat that could be achieved agreements, easements, and State and purpose on non-Federal lands. Thus the
through the designation of critical local regulations) enhance species benefits of excluding areas that are
habitat, in some cases, are less than the conservation by extending species covered by effective partnerships or
conservation benefits that could be protections beyond those available other conservation commitments can
achieved through the implementation of through section 7(a)(2) consultations. In often be high.
a management plan that includes the past decade, we have encouraged
species-specific provisions and non-Federal landowners to enter into Benefits of Excluding Lands With HCPs
considers enhancement or recovery of conservation agreements, based on the or Other Approved Management Plans
listed species as the management view that we can achieve greater species From Critical Habitat
standard over the same lands. conservation on non-Federal land The benefits of excluding lands with
Consequently, implementation of any through such partnerships than we can HCPs or other approved management
HCP or management plan that considers through regulatory methods (61 FR plans from critical habitat designation
enhancement or recovery as the 63854; December 2, 1996). include relieving landowners,
management standard will often provide Many private landowners, however, communities, and counties of any
as much or more benefit than a are wary of the possible consequences of additional regulatory burden that might
consultation for critical habitat attracting endangered species to their be imposed by a critical habitat
designation. property. Mounting evidence suggests designation. Most HCPs and other
The information provided in this that some regulatory actions by the conservation plans take many years to
section applies to all the following Federal Government, while well- develop and, upon completion, are
discussions that discuss the benefits of intentioned and required by law, can consistent with the recovery objectives
for listed species that are covered within (NCCP)–HCP applications require based on past practices, written
the plan area. Many conservation plans consultation, which would review the guidance, or regulations; and
also provide conservation benefits to effects of all HCP-covered activities that (3) The plan provides conservation
unlisted sensitive species. Imposing an might adversely impact the species strategies and measures consistent with
additional regulatory review as a result under a jeopardy standard, including currently accepted principles of
of the designation of critical habitat may possibly significant habitat modification conservation biology.
undermine these conservation efforts (see definition of ‘‘harm’’ at 50 CFR As discussed in detail below, we
and partnerships designed to 17.3), even without the critical habitat believe that the Western Riverside
proactively protect species to ensure designation. In addition, all other County Multiple Species Habitat
that listing under the Act will not be Federal actions that may affect the listed Conservation Plan (MSHCP) fulfills
necessary. Our experience in species would still require consultation these criteria with respect to the
implementing the Act has found that under section 7(a)(2) of the Act, and we conservation of Ceanothus ophiochilus.
designation of critical habitat within the would review these actions for possibly In addition, although not yet complete,
boundaries of management plans that significant habitat modification in the Otay Ranch Phase 2 Resource
provide conservation measures for a accordance with the definition of harm Management Plan developed under the
species is a disincentive to many referenced above. San Diego Multiple Species
entities which are either currently The information provided in the Conservation Plan (MSCP) substantially
developing such plans, or previous section applies to all the fulfills these criteria with respect to the
contemplating doing so in the future, following discussions of benefits of conservation of Fremontodendron
because one of the incentives for inclusion or exclusion of critical habitat. mexicanum.
undertaking conservation is greater ease Areas Considered for Exclusion Under Western Riverside County Multiple
of permitting where listed species will Section 4(b)(2) of the Act Species Habitat Conservation Plan
be affected. Addition of a new
regulatory requirement would remove a After considering the following areas The Western Riverside County
significant incentive for undertaking the under section 4(b)(2) of the Act, we are MSHCP is a large-scale, multi-
time and expense of management excluding them from the critical habitat jurisdictional HCP that addresses 146
planning. In fact, designating critical designation for Ceanothus ophiochilus listed and unlisted ‘‘Covered Species,’’
habitat in areas covered by a pending and Fremontodendron mexicanum. We including Ceanothus ophiochilus,
HCP or conservation plan could result are excluding approximately 80 ac (33 within the 1,260,000 ac (510,000 ha)
in the loss of some species’ benefits if ha) of non-Federal lands from the C. Plan Area in western Riverside County.
participants abandon the planning ophiochilus critical habitat designation Participants in the MSHCP include 14
process, in part because of the strength in subunits 1A and 1B that are within cities in western Riverside County; the
of the perceived additional regulatory the Western Riverside County MSHCP County of Riverside (including the
compliance that such designation would Plan Area, and all 133 ac (54 ha) of Riverside County Flood Control and
entail. The time and cost of regulatory private land in Unit 1 from the Water Conservation Agency, Riverside
compliance for a critical habitat designation of critical habitat for F. County Transportation Commission,
designation do not have to be quantified mexicanum. A detailed analysis of our Riverside County Parks and Open Space
for them to be perceived as additional exclusion of these lands under section District, and Riverside County Waste
Federal regulatory burden sufficient to 4(b)(2) of the Act is provided in the Department); California Department of
discourage continued participation in paragraphs below. Parks and Recreation; and the California
developing plans targeting listed Department of Transportation. The
Relationship of Critical Habitat to MSHCP was designed to establish a
species’ conservation. Habitat Conservation Plan Lands
A related benefit of excluding lands multi-species conservation program that
Exclusions Under Section 4(b)(2)—of minimizes and mitigates the expected
within management plans from critical
the Act loss of habitat and the incidental take of
habitat designation is the unhindered,
continued ability it gives us to seek new When performing the required Covered Species. On June 22, 2004, the
partnerships with future plan analysis under section 4(b)(2) of the Act, Service issued a single incidental take
participants including States, counties, the existence of a management plan permit pursuant to section 10(a)(1)(B) of
local jurisdictions, conservation (HCPs as well as other types) that the Act to 22 Permittees under the
organizations, and private landowners, considers enhancement or recovery of MSHCP for a period of 75 years. The
which together can implement listed species as its management Service granted the participating
conservation actions that we would be standard is relevant to our weighing of jurisdictions ‘‘take authorization’’ of
unable to accomplish otherwise. We the benefits of inclusion of a particular listed species in exchange for their
have found that potential participants area in the critical habitat designation. contribution to the assembly and
are not inclined to participate in such We considered the following criteria management of the MSHCP
management plans when we designate when we evaluated the management Conservation Area, which the Service
critical habitat within the area that and protection provided by the plans determined met the requirements for
would be covered by such a relevant to these critical habitat issuance of an incidental take permit
management plan, thus having a designations: under section 10 of the Act.
negative effect on our ability to establish (1) The plan is complete and provides Collectively, the MSHCP Conservation
new partnerships to develop these the same or a higher level of protection Area includes new reserve lands and
plans; particularly plans that address from adverse modification or additional Federal partner lands,
landscape-level conservation of species destruction than that provided through totaling approximately 500,000 ac
and habitats. By preemptively excluding a consultation under section 7 of the (202,343 ha).
these lands, we preserve our current Act; The MSHCP will establish
partnerships and encourage additional (2) There is a reasonable expectation approximately 153,000 ac (61,916 ha) of
conservation actions in the future. that the conservation management new conservation lands (Additional
Furthermore, both HCPs and Natural strategies and actions will be Reserve Lands) to complement the
Communities Conservation Plan implemented for the foreseeable future, approximate 347,000 ac (140,426 ha) of
existing natural and open space areas Ceanothus ophiochilus critical habitat percent of suitable habitat areas
(e.g., State Parks, USFS, and County designation in subunits 1A and 1B that determined important to the long-term
Park lands known as Public/Quasi– are within the MSHCP Plan Area under conservation of C. ophiochilus within
Public (PQP) Lands) in forming the section 4(b)(2) of the Act. These non- the Criteria Area. The specific area
approximately 500,000–ac (202,343–ha) Federal lands comprise private lands to identified as Subunit 1A and the private
MSHCP Conservation Area. The precise the west of Vail Lake (approximately 76 lands identified within Subunit 1B are
configuration of the 153,000 ac (61,916 ac (31 ha) in subunit 1A) and private subject to the requirements of the
ha) of Additional Reserve Lands is not lands adjacent to the northern boundary MSHCP. The benefits from the required
mapped or precisely identified in the of the Cleveland National Forest east of specific conservation actions, survey
MSHCP, but rather is based on textual Woodchuck Road (approximately 4 ac (2 requirements, avoidance and
descriptions within the bounds of a ha) in subunit 1B). minimization measures, and
310,000–ac (125,453–ha) Criteria Area The USFS lands within these subunits management for C. ophiochilus and its
that is interpreted as implementation of are considered PQP lands under the PCEs exceed any conservation value
the MSHCP proceeds. For Ceanothus MSHCP and as such are included within provided as a result of any regulatory
ophiochilus, critical habitat subunits 1A the overall 500,000 ac (202,343 ha) protections that may be afforded
(Vail Lake) and 1B (Agua Tibia MSHCP Conservation Area. While these through a critical habitat designation.
Wilderness) are located entirely within Federal lands are managed by the USFS As such, the regulatory benefits of
the MSHCP Plan Area on USFS and and are an integral part of the overall including the 80 ac (33 ha) of private
private lands. conservation strategy of the MSHCP, land within the MSHCP plan area are
The private lands within these federal entities cannot be permittees minimal.
subunits are within the Criteria Area under a section 10(a)(1)(B) permit, and The educational benefits of critical
and are targeted for inclusion within the the USFS is not bound by the terms of habitat derived through informing the
MSHCP Conservation Area as the MSHCP. In addition, the rationale public of areas important for the long-
Additional Reserve Lands. Specific provided below supporting the term conservation of this species would
conservation objectives in the MSHCP exclusion of the private lands within also be minimal because these
for Ceanothus ophiochilus provide for these subunits is not applicable to educational benefits have been and
conservation and management of at least Federal lands. Therefore, we are not continue to be accomplished through
13,290 ac (5,378 ha) of suitable excluding USFS lands within subunit materials provided on our Web site at
chaparral habitat and at least three core 1B based on the MSHCP. http://www.fws.gov/carlsbad/. Further,
locations of this species in the vicinity many educational benefits of critical
Benefits of Exclusion Outweigh the
of Vail Lake and the Agua Tibia habitat designation have already been
Benefits of Inclusion
Wilderness. Additionally, the plan achieved through the overall
requires surveys for C. ophiochilus as We have reviewed and evaluated the designation process and notice and
part of the project review process for exclusion from the final designation of public comment, and will occur
public and private projects where approximately 80 ac (33 ha) of critical whether or not these particular subunits
suitable habitat is present within a habitat on non-Federal lands within the are designated.
defined boundary of the Criteria Area MSHCP Plan Area, and have determined In addition, the recovery benefits
(see Criteria Area Species Survey Area that the benefits of excluding these non- associated with designation, identified
Map, Figure 6–2 of the MSHCP, Volume Federal lands in subunits 1A and 1B above in the ‘‘Recovery Benefits’’
I). For locations with positive survey outweigh the benefits of including these section, have already been achieved
results, 90 percent of those portions of lands. The exclusion of these lands from through the public review process of the
the property that provide long-term critical habitat will help preserve the proposed critical habitat rule.
conservation value for the species will partnerships that we have developed Designation of critical habitat does not
be avoided until it is demonstrated that with the local jurisdictions and project require that management or recovery
the conservation objectives for the proponents in the development of the actions take place on the lands included
species are met. We are currently aware MSHCP, and aid in fostering additional in the designation. Preserving and
of only three populations of C. partnerships for the benefit of species supporting the partnerships that we
ophiochilus in the MSHCP Conservation on non-Federal lands. have developed with the local
Area. The MSHCP recognizes these The benefits of excluding these lands jurisdictions and project proponents in
same three populations. The goal of the from critical habitat outweigh the the implementation the Western
MSHCP is to conserve a minimum of minimal benefits of including these Riverside County MSHCP will provide a
three populations of C. ophiochilus. lands as critical habitat. The PCEs greater benefit to the species, as it
Although the specific location of required by Ceanothus ophiochilus will ensures both preservation and
individual target areas for this species benefit by the conservation measures management of lands we have
has yet to be identified, we recognize outlined in the MSHCP. These determined essential for the
that no other populations of the plant conservation measures include conservation of this species.
have been identified and agree that protecting and managing the PCEs
within the MSHCP Conservation Area Exclusion Will Not Result in Extinction
conservation of three populations of this
by: Protecting habitat from surface- of the Species
plant through the survey requirements,
avoidance and minimization measures, disturbing activities; implementing We conclude that the exclusion of 80
and management for C. ophiochilus (and specific management and monitoring ac (33 ha) from the final designation of
its PCEs) exceed any conservation value practices to help ensure the critical habitat for Ceanothus
provided as a result of any regulatory conservation of C. ophiochilus and its ophiochilus will not result in the
protections that may be afforded PCEs in the Plan Area; maintaining the extinction of the species because the
through a critical habitat designation physical and ecological characteristics Western Riverside County MSHCP
over the private lands within these of occupied habitat; and conducting provides for the conservation of this
subunits. surveys and implementing other species and its PCEs on all known
We are excluding approximately 80 ac required procedures to ensure occupied areas within the county and
(33 ha) of non-Federal lands from the avoidance of impacts to at least 90 may also conserve newly discovered
occurrences. Importantly, as we stated southern San Diego County, including benefits of exclusion outweigh the
in our biological opinion, while some Fremontodendron mexicanum. benefits of including these lands.
loss of modeled habitat for C. In its current state, the land excluded
from the designation of critical habitat Benefits of Exclusion Outweigh the
ophiochilus is anticipated due to
is not being managed under the Otay Benefits of Inclusion
implementation of the MSHCP, we
concluded that implementation of the Ranch Phase 2 Resource Management We have reviewed and evaluated the
plan will not jeopardize the continued Plan; however, ongoing measures are in current conservation measures in place
existence of this species. place that protect the primary on the private lands within Otay Ranch
The jeopardy standard of section 7 constituent elements for proposed for designation of critical
and routine implementation of Fremontodendron mexicanum. The habitat for Fremontodendron
conservation measures through the excluded area is fenced and has locked mexicanum and the future conservation
section 7 process also provide gates at access points. This measure measures as described in the ‘‘Otay
assurances that the species will not go excludes any unauthorized off-road Ranch Phase 2 Resource Management
extinct. The exclusion of critical habitat vehicle activity from the area. The Plan (Otay Ranch 2002. pp. 260).’’ We
leaves these protections unchanged excluded area is also entirely within the have determined that these conservation
from those that would exist if the area zoned by the County of San Diego measures provide direct and indirect
excluded areas were designated as as open space. This places restrictions benefits for F. mexicanum (see
critical habitat. on any development that would be discussion above). We also believe that
permitted in this area. the partnerships that we have developed
Application of Section 4(b)(2) to Lands Other areas within the Otay Ranch with the landowners and other
Within Otay Ranch Which Are Within have been conserved as expected and stakeholders have made this
County of San Diego Subarea Plan we believe a reasonable certainty exists conservation possible. We believe that
Under the Multiple Species that this area will be conserved as the designation of critical habitat could
Conservation Plan planned. One of our partners involved have a detrimental effect on these
with the conservation of these lands, the important partnerships and similar
All private lands proposed for
County of San Diego, provided future partnerships.
designation of Fremontodendron We have worked with several
mexicanum are within the area covered significant comments on the future
management that will occur on these different stakeholders to achieve high
by the ‘‘Otay Ranch Phase 2 Resource amounts of conservation on Otay Ranch.
Management Plan (Otay Ranch 2002, p. lands (Pryor 2007, p. 2).
Fremontodendron mexicanum will This large piece of land provides habitat
260).’’ This plan provides for the phased for many sensitive species, many that do
conservation and development of lands benefit from adaptive management
activities that occur within the Otay not receive any legal protection under
in southern San Diego County. Lands the Act, and the conservation of this
covered by this plan were originally Ranch Preserve. The draft Otay Ranch
Phase 2 Resource Management Plan habitat has been essential to the success
owned by a single owner. Following the of the large scale habitat conservation
development of the Plan the land was (Otay Ranch 2002, p. 52, 53, 141, 144)
describes the following monitoring and planning efforts taking place in southern
divided into sections and sold to San Diego County. Partnerships to
separate owners. The development and management activities, which will
benefit F. mexicanum within the Otay conserve private land take years to
associated conservation of these lands is foster and it is necessary to build trust
currently taking place in a phased Ranch Preserve:
a. Focused surveys and population between the Federal government and
approach. A large portion of land is private land owners. A large part of this
proposed for conservation purposes, but estimates specifically for F. mexicanum
(Otay Ranch 2002, p. 141, 144); trust comes from each partner following
this land is not actually conserved until through with its commitments. In this
b. Maintenance of existing, high-
the associated development on the case, the owners of Otay Ranch have
quality resources through the
section occurs. The land that we agreed to set aside specific lands for
prevention of disturbance, including
proposed for designation is part of the conservation. In return they will be
controlling access to the preserve,
eastern section of Otay Ranch and allowed to develop other areas of their
prohibiting off-road traffic, enforcing no
because it is the furthest from existing private land. The area that we proposed
trespassing rules, and curtailing
development it will be one of the last for designation as critical habitat is
activities that degrade resources such as
phases completed. entirely within the area which is
grazing, shooting, and illegal dumping
The conservation associated with the (Otay Ranch 2002, p. 52); proposed for conservation in the land-
development of Otay Ranch conserves c. Monitoring of resources to identify use planning for Otay Ranch; however,
both state and federally-listed species as changes in the quality and quantity of we do not want to impose an additional
well as sensitive species that do not sensitive resources and habitat (Otay regulatory burden that could
receive any legal protection under the Ranch 2002, p. 52); unnecessarily interfere with these
Act. The partnerships that the U.S. Fish d. Implementation and monitoring of important partnerships. The
and Wildlife Service, the California restoration activities as appropriate conservation of this area is already
Department of Fish and Game, and (Otay Ranch 2002, p. 53); supported by the open space zoning on
County of San Diego (as well as many e. Trail maintenance (Otay Ranch this area under the County of San Diego.
other entities) have formed with the 2002, p. 53); and As other phases of the Otay Ranch
private landowners and other f. Removal and control of exotic project have been developed some
stakeholders through the work to species including nonnative plants and minor changes have occurred with the
conserve the sensitive biological cowbirds (Otay Ranch 2002, p. 53). open space designations and
resources on Otay Ranch while at the As discussed below, we have conservation easements, but for the
same time allowing for both residential excluded all private lands within the most part large areas that would have
and commercial development of the Otay Ranch from the final critical otherwise been developed have been
land have taken a long time to cultivate. habitat designation within Unit 1 for conserved and now contribute to the
These lands are essential to the long- Fremontodendron mexicanum under overall conservation envisioned under
term conservation of several species in section 4(b)(2) of the Act because the the MSCP and Otay Ranch Specific
Plan. We have received comments from that would exist if these areas were of the proposed critical habitat
potential participants expressing their designated as critical habitat. designation and other conservation-
concern over areas included in the related actions for these species on
Economics
designation of critical habitat that government agencies and private
overlap areas covered by management Section 4(b)(2) of the Act allows the businesses and individuals. The
plans. These potential participants have Secretary to exclude areas from critical economic analysis identifies potential
suggested that they are not inclined to habitat for economic reasons if it is costs will be $385,000 to $659,000 in
participate in such management plans, determined that the benefits of such undiscounted dollars over a 20-year
thus having a negative impact on our exclusion exceed the benefits of period as a result of the proposed
ability to establish new partnerships. designating the area as critical habitat. designation of critical habitat, including
The exclusion of these lands from However, this exclusion cannot occur if those costs coextensive with listing and
critical habitat will help preserve the it will result in the extinction of the recovery. Discounted future costs are
partnerships that we have developed species concerned. estimated to be $325,000 to $559,000
with the land owners of Otay Ranch and Following the publication of the ($22,000 to $38,000 annualized) at a 3
the County of San Diego and promote proposed critical habitat designation, percent discount rate, or $272,000 to
the conservation of Fremontodendron we conducted an economic analysis to $471,000 ($26,000 to $44,000
mexicanum on these private lands. estimate the potential economic effect of annualized) at a 7 percent discount rate.
In comparison, the regulatory benefits the designation. The draft analysis was
The economic analysis considers the
of including these lands in critical made available for public review on
potential economic effects of actions
habitat are minimal. Based on the April 5, 2007 (72 FR 16756). We
relating to the conservation of
existing land-use restrictions and the accepted comments on the draft analysis
Ceanothus ophiochilus and
future conservation and management of until May 7, 2007. A final analysis of
the potential economic effects of the Fremontodendron mexicanum,
these lands under the Otay Ranch Phase including costs associated with sections
2 Resource Management Plan, we do not proposed designation was then
developed taking into consideration the 4, 7, and 10 of the Act, and including
anticipate Federal activities occurring those attributable to the designation of
on these private lands that could public comments and any new
information. critical habitat. It further considers the
appreciably reduce the conservation economic effects of protective measures
value of this habitat for F. mexicanum. The primary purpose of the economic
analysis is to estimate the potential taken as a result of other Federal, State,
In addition, the educational and overall and local laws that aid habitat
recovery benefits of critical habitat economic impacts associated with the
designation of critical habitat for conservation for C. ophiochilus and F.
designation have largely already been
Ceanothus ophiochilus and mexicanum in areas containing features
accomplished in the rulemaking process
Fremontodendron mexicanum. The essential to the conservation of the
through informing the public of areas
information is intended to assist the species. The analysis considers both
important for the long-term
Secretary in making decisions about economic efficiency and distributional
conservation of Fremontodendron
whether the benefits of excluding effects. In the case of habitat
mexicanum. Such benefits can continue
particular areas from the designation conservation, efficiency effects generally
to be achieved through the publication
outweigh the benefits of including those reflect the ‘‘opportunity costs’’
of materials regarding this species
areas in the designation. This economic associated with the commitment of
provided on our Web site.
Therefore, we have determined that analysis considers the economic resources to comply with habitat
the benefits of excluding the identified efficiency effects that may result from protection measures (such as lost
133 ac (54 ha) of private land from the the designation, including habitat economic opportunities associated with
critical habitat designation outweigh the protections that may be co-extensive restrictions on land use).
benefits of including these lands in with the listing of the species. It also The analysis also addresses how
critical habitat. addresses distribution of impacts, potential economic impacts are likely to
including an assessment of the potential be distributed, including an assessment
Exclusion Will Not Result in Extinction effects on small entities and the energy of any local or regional impacts of
of the Species industry. This information can be used habitat conservation and the potential
Exclusion of these 133 ac (54 ha) of by the Secretary to assess whether the effects of conservation activities on
non-Federal lands from the final effects of the designation might unduly small entities and the energy industry.
designation of critical habitat will not burden a particular group or economic This information can be used by
result in the extinction of sector. decision-makers to assess whether the
Fremontodendron mexicanum because The analysis focuses on the direct and effects of the designation might unduly
these lands will be permanently indirect costs of the rule. However, burden a particular group or economic
conserved and managed in a manner economic impacts to land use activities sector. Finally, this analysis looks
that clearly benefits this species. can exist in the absence of critical retrospectively at costs that have been
The jeopardy standard of section 7 habitat. These impacts may result from, incurred since the date Ceanothus
and routine implementation of habitat for example, local zoning laws, State ophiochilus and Fremontodendron
protection through the section 7 process and natural resource laws, and mexicanum were listed as endangered
also provide assurances that the species enforceable management plans and best and threatened, respectively (October
will not go extinct. Although F. management practices applied by other 13, 1998; 63 FR 54956), and considers
mexicanum is not a covered species State and Federal agencies. Economic those costs that may occur in the 20
under the MSCP, F. mexicanum was impacts that result from these types of years following a designation of critical
evaluated in the biological opinion for protections are not included in the habitat. After consideration of the
the MSCP, and we found that analysis as they are considered to be impacts under section 4(b)(2) of the Act,
implementation of the plan would not part of the regulatory and policy we have not excluded any areas from
jeopardize this species (Service 1998). baseline. the final critical habitat designation
The exclusion of critical habitat leaves The economic analysis estimates the based on the identified economic
these protections unchanged from those foreseeable potential economic impacts impacts.
A copy of the final economic analysis describes the effect of the rule on small especially with critical habitat
with supporting documents are entities (i.e., small businesses, small designations of limited extent, we may
included in our administrative file and organizations, and small government aggregate across all industries and
may be obtained by contacting the jurisdictions). However, no regulatory consider whether the total number of
Carlsbad Fish and Wildlife Office, flexibility analysis is required if the small entities affected is substantial. In
Branch of Endangered Species (see head of an agency certifies the rule will estimating the number of small entities
ADDRESSES) or by downloading from the not have a significant economic impact potentially affected, we also consider
Internet at http://www.fws.gov/ on a substantial number of small whether their activities have any
carlsbad/. entities. The SBREFA amended the RFA Federal involvement.
to require Federal agencies to provide a Designation of critical habitat only
Required Determinations statement of factual basis for certifying affects activities conducted, funded, or
Regulatory Planning and Review that the rule will not have a significant permitted by Federal agencies. Some
economic impact on a substantial kinds of activities are unlikely to have
In accordance with Executive Order any Federal involvement and so will not
number of small entities. SBREFA
(E.O.) 12866, this document is a be affected by critical habitat
amended RFA to require Federal
significant rule in that it may raise novel designation. In areas where the species
agencies to provide a certification
legal and policy issues. On the basis of is present, Federal agencies already are
statement of the factual basis for
our economic analyses of the critical required to consult with us under
certifying that the rule will not have a
habitat for these species, we have section 7 of the Act on activities they
significant economic impact on a
determined that the final designations of fund, permit, or implement that may
substantial number of small entities.
critical habitat for each species will not Small entities include small affect Ceanothus ophiochilus and
have an annual effect on the economy organizations, such as independent Fremontodendron mexicanum. Federal
of $100 million or more or affect the nonprofit organizations; small agencies also must consult with us if
economy in a material way. The governmental jurisdictions, including their activities may affect critical
economic analysis identifies potential school boards and city and town habitat. Designation of critical habitat,
costs will be $385,000 to $659,000 in governments that serve fewer than therefore, could result in an additional
undiscounted dollars over a 20-year 50,000 residents; as well as small economic impact on small entities due
period as a result of the proposed businesses. Small businesses include to the requirement to reinitiate
designation of critical habitat, including manufacturing and mining concerns consultation for ongoing Federal
those costs coextensive with listing and with fewer than 500 employees, activities.
recovery. Discounted future costs are wholesale trade entities with fewer than The draft economic analysis analyzed
estimated to be $325,000 to $559,000 100 employees, retail and service the possible impacts to small entities in
($22,000 to $38,000 annualized) at a 3 businesses with less than $5 million in the following categories: Development,
percent discount rate, or $272,000 to annual sales, general and heavy fire management on Federal lands, alien
$471,000 ($26,000 to $44,000 construction businesses with less than plant species management on Federal
annualized) at a 7 percent discount rate. $27.5 million in annual business, lands, and other activities on Federal
We used this analysis to meet the special trade contractors doing less than lands. The economic analysis concluded
requirement of section 4(b)(2) of the Act $11.5 million in annual business, and that conservation activities would not
to determine the economic agricultural businesses with annual affect small entities in the above
consequences of designating the specific sales less than $750,000. To determine categories (Service 2007, Appendix A,
areas as critical habitat. We also used it if potential economic impacts to these p. A–1). There are two private land
in determining whether to exclude any small entities are significant, we owners in Riverside County that may
area from critical habitat, as provided consider the types of activities that need to undertake fire management
for under section 4(b)(2). If we might trigger regulatory impacts under activities and/or management of alien
determine that the benefits of excluding this rule, as well as the types of project plant species. The economic cost of fire
a particular area outweigh the benefits modifications that may result. In management was estimated at $3,000 to
of specifying such area as part of the general, the term ‘‘significant economic $4,000 per year and the economic cost
critical habitat, we may exclude the area impact’’ is meant to apply to a typical of alien plant species management was
unless we determine, based on the best small business firm’s business estimated at $1,000 to $2,000 per year.
scientific data available, that the failure operations. It is unclear if these private landowners
to designate such area as critical habitat To determine if the rule could qualify as small businesses.
will result in the extinction of the significantly affect a substantial number In general, two different mechanisms
species. Due to the tight timeline for of small entities, we consider the in section 7(a)(2) consultations could
publication in the Federal Register, the number of small entities affected within lead to additional regulatory
Office of Management and Budget particular types of economic activities requirements for approximately four
(OMB) has not formally reviewed this (e.g., housing development, grazing, oil small businesses, on average, that may
rule. and gas production, timber harvesting). be required to consult with us regarding
We apply the ‘‘substantial number’’ test their project’s impact on Ceanothus
Regulatory Flexibility Act (5 U.S.C. 601 individually to each industry to ophiochilus and Fremontodendron
et seq.) determine if certification is appropriate. mexicanum and their habitat. First, if
Under the Regulatory Flexibility Act However, the SBREFA does not we conclude, in a biological opinion,
(RFA) (as amended by the Small explicitly define ‘‘substantial number’’ that a proposed action is likely to
Business Regulatory Enforcement or ‘‘significant economic impact.’’ jeopardize the continued existence of a
Fairness Act (SBREFA) of 1996), Consequently, to assess whether a species or adversely modify its critical
whenever an agency must publish a ‘‘substantial number’’ of small entities is habitat, we can offer ‘‘reasonable and
notice of rulemaking for any proposed affected by this designation, this prudent alternatives.’’ Reasonable and
or final rule, it must prepare and make analysis considers the relative number prudent alternatives are alternative
available for public comment a of small entities likely to be impacted in actions that can be implemented in a
regulatory flexibility analysis that an area. In some circumstances, manner consistent with the scope of the
Federal agency’s legal authority and by USFS, BLM and the Department of significantly affect energy supply,
jurisdiction, that are economically and Homeland Security. distribution, and use. Executive Order
technologically feasible, and that would The most likely Federal involvement 13211 requires agencies to prepare
avoid jeopardizing the continued could include projects that require Statements of Energy Effects when
existence of listed species or adversely permits to conduct activities on USFS or undertaking certain actions. This final
modifying critical habitat. A Federal BLM land. It is likely that a developer rule to designate critical habitat for
agency and an applicant may elect to or other project proponent could modify Ceanothus ophiochilus and
implement a reasonable and prudent a project or take measures to protect Fremontodendron mexicanum is not
alternative associated with a biological Ceanothus ophiochilus and expected to significantly affect energy
opinion that has found jeopardy or Fremontodendron mexicanum. The supplies, distribution, or use because
adverse modification of critical habitat. kinds of actions that may be included if there are no existing energy projects
An agency or applicant could future reasonable and prudent within the area designated as critical
alternatively choose to seek an alternatives become necessary include habitat for either of these two species.
exemption from the requirements of the conservation set-asides, management of Therefore, this action is not a significant
Act or proceed without implementing competing nonnative species, energy action and no Statement of
the reasonable and prudent alternative. restoration of degraded habitat, and Energy Effects is required.
However, unless an exemption were regular monitoring. These are based on
our understanding of the needs of the Takings
obtained, the Federal agency or
applicant would be at risk of violating species and the threats they face, as In accordance with Executive Order
section 7(a)(2) of the Act if it chose to described in the final listing rule and 12630 (‘‘Government Actions and
proceed without implementing the proposed critical habitat designation. Interference with Constitutionally
reasonable and prudent alternatives. These measures are not likely to result Protected Private Property Rights’’), we
Second, if we find that a proposed in a significant economic impact to have analyzed the potential takings
action is not likely to jeopardize the project proponents. implications of designating critical
continued existence of a plant species or In summary, we have considered habitat for this rule in a takings
adversely modify its critical habitat, we whether this would result in a implication assessment. The takings
may identify discretionary conservation significant economic effect on a implications assessment concludes that
recommendations designed to minimize substantial number of small entities. this final designation of critical habitat
or avoid the adverse effects of a Federal involvement, and thus section does not pose significant takings
proposed action on listed species or 7(a)(2) consultations, would be limited implications.
critical habitat, help implement to a subset of the area designated. Unfunded Mandates Reform Act (2
recovery plans, or develop information Currently, we are unaware of any small U.S.C. 1501 et seq.)
that could contribute to the recovery of businesses that use the areas designated
the species. as critical habitat for economic In accordance with the Unfunded
Based on our experience with purposes. Therefore, based on the above Mandates Reform Act (2 U.S.C. 1501 et
consultations pursuant to section 7 of reasoning and the currently available seq.), we make the following findings:
the Act for all listed species, virtually information, we certify that the rule will (a) This rule will not produce a
all projects—including those that, in not have a significant economic impact Federal mandate. In general, a Federal
their initial proposed form, would result on a substantial number of small mandate is a provision in legislation,
in jeopardy or adverse modification entities. A regulatory flexibility analysis statute, or regulation that would impose
determinations in section 7(a)(2) is not required. an enforceable duty upon State, local, or
consultations—can be implemented Tribal governments, or the private sector
successfully with, at most, the adoption Small Business Regulatory Enforcement and includes both ‘‘Federal
of reasonable and prudent alternatives. Fairness Act (5 U.S.C 801 et seq.) intergovernmental mandates’’ and
These measures, by definition, must be Under SBREFA, this rule is not a ‘‘Federal private sector mandates.’’
economically feasible and within the major rule. Our detailed assessment of These terms are defined in 2 U.S.C.
scope of authority of the Federal agency the economic effects of this designation 658(5)–(7). ‘‘Federal intergovernmental
involved in the consultation. We can is described in the economic analysis. mandate’’ includes a regulation that
only describe the general kinds of Based on the effects identified in the ‘‘would impose an enforceable duty
actions that may be identified in future economic analysis, we believe that this upon State, local, or Tribal
reasonable and prudent alternatives. rule will not have an annual effect on governments’’ with two exceptions. It
These are based on our understanding of the economy of $100 million or more, excludes ‘‘a condition of federal
the needs of the species and the threats will not cause a major increase in costs assistance.’’ It also excludes ‘‘a duty
they face, as described in the final or prices for consumers, and will not arising from participation in a voluntary
listing rule and this critical habitat have significant adverse effects on Federal program,’’ unless the regulation
designation. Within the final critical competition, employment, investment, ‘‘relates to a then-existing Federal
habitat units, the types of Federal productivity, innovation, or the ability program under which $500,000,000 or
actions or authorized activities that we of U.S.-based enterprises to compete more is provided annually to State,
have identified as potential concerns with foreign-based enterprises. Refer to local, and Tribal governments under
are: the final economic analysis for a entitlement authority,’’ if the provision
(1) Land management activities, like discussion of the effects of this would ‘‘increase the stringency of
fire suppression, grazing, mining, and determination. conditions of assistance’’ or ‘‘place caps
recreation authorized by the USFS and upon, or otherwise decrease, the Federal
Executive Order 13211
BLM; Government’s responsibility to provide

(2) Restoration activities designed to On May 18, 2001, the President issued funding’’ and the State, local, or Tribal
mitigate or repair the effects of fire Executive Order 13211 (Actions governments ‘‘lack authority’’ to adjust
suppression; and Concerning Regulations That accordingly. (At the time of enactment,
(3) Activities related to road use and Significantly Affect Energy Supply, these entitlement programs were:
maintenance authorized or conducted Distribution, or Use) on regulations that Medicaid; AFDC work programs; Child
Nutrition; Food Stamps; Social Services Fremontodendron mexicanum; Government-to-Government

Block Grants; Vocational Rehabilitation therefore, the designation is unlikely to Relationship With Tribes
State Grants; Foster Care, Adoption impact State and local governments and
In accordance with the President’s
Assistance, and Independent Living; their activities. The designation may
memorandum of April 29, 1994,
Family Support Welfare Services; and have some benefit to these governments
‘‘Government-to-Government Relations
Child Support Enforcement.) ‘‘Federal in that the areas that contain the
with Native American Tribal
private sector mandate’’ includes a features essential to the conservation of
Governments’’ (59 FR 22951), Executive
regulation that ‘‘would impose an the species are more clearly defined,
Order 13175, and the Department of the
enforceable duty upon the private and the primary constituent elements of
Interior’s manual at 512 DM 2, we
sector, except (i) A condition of Federal the habitat necessary to the conservation
readily acknowledge our responsibility
assistance; or (ii) a duty arising from of the species are specifically identified.
to communicate meaningfully with
participation in a voluntary Federal While making this definition and
recognized Federal Tribes on a
program.’’ identification does not alter where and
The designation of critical habitat government-to-government basis. We
what federally sponsored activities may
does not impose a legally binding duty have determined that there are no Tribal
occur, it may assist these local
on non-Federal government entities or lands that were occupied at the time of
governments in long-range planning
private parties. Under the Act, the only listing and that contain the features
(rather than waiting for case-by-case
regulatory effect is that Federal agencies essential for the conservation of
section 7(a)(2) consultations to occur).
must ensure that their actions do not Ceanothus ophiochilus and
destroy or adversely modify critical Civil Justice Reform Fremontodendron mexicanum, and no
habitat under section 7. While non- In accordance with Executive Order Tribal lands that are unoccupied areas
Federal entities who receive Federal 12988 (Civil Justice Reform), the Office essential for the conservation of the
funding, assistance, permits or of the Solicitor has determined that the species. Therefore, critical habitat for
otherwise require approval or rule does not unduly burden the judicial Ceanothus ophiochilus and
authorization from a Federal agency for system and meets the requirements of Fremontodendron mexicanum has not
an action may be indirectly impacted by sections 3(a) and 3(b)(2) of the Order. been designated on Tribal lands.
the designation of critical habitat, the We are designating critical habitat in References Cited
legally binding duty to avoid accordance with the provisions of
destruction or adverse modification of section 4 of the Act. This final rule uses A complete list of all references cited
critical habitat rests squarely on the standard property descriptions and in this rulemaking is available upon
Federal agency. Furthermore, to the identifies the primary constituent request from the Field Supervisor,
extent that non-Federal entities are elements within the designated areas to Carlsbad Fish and Wildlife Office (see
ADDRESSES section).
indirectly impacted because they assist the public in understanding the
receive Federal assistance or participate habitat needs of Ceanothus ophiochilus Author(s)
in a voluntary Federal aid program, the and Fremontodendron mexicanum.
The primary author of this package is
Unfunded Mandates Reform Act would
Paperwork Reduction Act of 1995 (44 staff of the Carlsbad Fish and Wildlife
not apply, nor would critical habitat
U.S.C. 3501 et seq.) Office.
shift the costs of the large entitlement
programs listed above onto State This rule does not contain any new List of Subjects in 50 CFR Part 17
governments. collections of information that require
(b) We do not believe that this rule approval by OMB under the Paperwork Endangered and threatened species,
will significantly or uniquely affect Reduction Act. This rule will not Exports, Imports, Reporting and
small governments because it will not impose recordkeeping or reporting recordkeeping requirements,
produce a Federal mandate of $100 requirements on State or local Transportation.
million or greater in any year, that is, it governments, individuals, businesses, or Regulation Promulgation
is not a ‘‘significant regulatory action’’ organizations. An agency may not
under the Unfunded Mandates Reform conduct or sponsor, and a person is not ■ Accordingly, we amend part 17,
Act. The designation of critical habitat required to respond to, a collection of subchapter B of chapter I, title 50 of the
imposes no obligations on State or local information unless it displays a Code of Federal Regulations, as set forth
governments. As such, a Small currently valid OMB control number. below:
Government Agency Plan is not National Environmental Policy Act PART 17—[AMENDED]
required. (NEPA) (42 U.S.C. 4321 et. seq.)
Federalism ■ 1. The authority citation for part 17
It is our position that, outside the continues to read as follows:
In accordance with Executive Order jurisdiction of the Tenth Federal Circuit,
13132 (Federalism), the rule does not we do not need to prepare Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
have significant Federalism effects. A environmental analyses as defined by 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
Federalism assessment is not required. the NEPA in connection with
In keeping with the Department of the designating critical habitat under the ■ 2. In § 17.12(h), revise the entry for
Interior and Department of Commerce Act. We published a notice outlining ‘‘Ceanothus ophiochilus’’ and the entry
policy, we requested information from, our reasons for this determination in the for ‘‘Fremontodendron mexicanum’’
and coordinated development of, this Federal Register on October 25, 1983 under ‘‘FLOWERING PLANTS’’ to read
final critical habitat designation with (48 FR 49244). This assertion was as follows:
appropriate State resource agencies in upheld in the courts of the Ninth Circuit
California. Only federal lands are being Court of Appeals (Douglas County v. § 17.12 Endangered and threatened plants.
designated as critical habitat for Babbitt, 48 F.3d 1495 (9th Cir. Ore. * * * * *
Ceanothus ophiochilus and 1995), cert. denied 516 U.S. 1042 (1996). (h) * * *
Species When Critical Special

Historic range Family Status listed habitat rules
Scientific name Common name
FLOWERING PLANTS
* * * * * * *
Ceanothus Vail Lake ceanothus U.S.A. (CA) ............... Rhamnaceae ............. T 648 17.96(a) NA
ophiochilus.
* * * * * * *
Fremontodendron Mexican flannelbush U.S.A. (CA), Mexico Sterculiaceae ............ E 648 17.96(a) NA
mexicanum.
* * * * * * *
■ 3. Amend § 17.96(a) as follows: Specifically in the areas that Ceanothus 3701222; 499950, 3701238; 500022,
■ a. By adding an entry for Ceanothus ophiochilus is found, the soils are: 3701235; 500060, 3701218; 500091,
ophiochilus (Vail Lake ceanothus) in (A) Ramona, Cienaba, Las Posas, and 3701184; 500127, 3701138; 500158,
alphabetical order under family Vista series in the Agua Tibia 3701092; 500191, 3701048; 500226,
Rhamnaceae; Wilderness; and 3701010; 500247, 3700998; 500262,
■ b. By adding Family Sterculiaceae in (B) Cajalco series in the vicinity of 3700990; 500273, 3700981; 500294,
alphabetical order by family name; and Vail Lake. 3700965; 500326, 3700909; 500351,
■ c. By adding an entry for
(iii) Chamise chaparral or mixed 3700872; 500353, 3700869; 500362,
Fremontodendron mexicanum (Mexican chamise-ceanothus-arctostaphylos 3700855; 500375, 3700824; 500398,
flannelbush) under Family chaparral at elevations of 2,000 feet to 3700735; 500400, 3700646; 500370,
Sterculiaceae. 3,000 feet (610 meters to 914 meters) 3700546; 500308, 3700359; 500293,
that provide the appropriate canopy 3700272; 500173, 3700102; 500057,
§ 17.96 Critical habitat—plants. cover and elevation requirements for 3699889; 500008, 3699730; 499990,
(a) Flowering plants. growth and reproduction. 3699595; 499988, 3699460; 500022,
(3) Critical habitat does not include 3699376; 500045, 3699326; 500113,
* * * * * man-made structures existing on the
Family Rhamnaceae: Ceanothus 3699213; 500179, 3699040; 500199,
effective date of this rule and not 3698902; 500173, 3698801; 500010,
ophiochilus (Vail Lake ceanothus). containing one or more of the primary
(1) Critical habitat units are depicted 3698618; 499966, 3698566; 499920,
constituent elements, such as buildings, 3698544; 499823, 3698518; 499757,
for Riverside County, California, on the aqueducts, airports, and roads, and the
maps below. 3698516; 499704, 3698537; 499671,
land on which such structures are 3698570; 499655, 3698612; 499671,
(2) The primary constituent elements located.
(PCEs) of critical habitat for Ceanothus 3698670; 499783, 3698843; 499834,
(4) Data layers defining map units
ophiochilus are the habitat components 3698968; 499840, 3699020; 499840,
were created on a base of USGS
that provide: 3699090; 499819, 3699185; 499755,
1:24,0000 maps, and critical habitat
(i) Flat to gently sloping north to 3699338; 499731, 3699474; 499757,
units were then mapped using Universal
northeast facing ridge tops with slopes 3699750; 499838, 3699993; 499974,
Transverse Mercator (UTM) coordinates.
in the range of 0 to 40 percent slope that (5) Unit 1. 3700214; 500037, 3700349; 500055,
provide the appropriate solar exposure (i) Subunit 1B for Ceanothus 3700453; 500063, 3700594; 500033,
for seedling establishment and growth. ophiochilus, Agua Tibia Subunit, 3700813; 499984, 3700976; 499924,
(ii) Soils formed from metavolcanic Riverside County, California. From 3701105; thence returning to 499902,
and ultra-basic parent materials and USGS 1:24,000 quadrangles Pechanga 3701154.
deeply weathered gabbro or pyroxenite- and Vail Lake, lands bounded by the (ii) Map of Unit 1, subunit 1B (Map
rich outcrops that provide nutrients and following UTM NAD27 coordinates 1) follows:
space for growth and reproduction. (E,N): 499902,3701154; 499909, BILLING CODE 4310–55–P
ER27SE07.000</GPH>
Family Sterculiaceae: (914 meters) within a matrix of 3610192; 516251, 3609616; 516229,
Fremontodendron mexicanum (Mexican chaparral (such as Dendromecon rigida 3608802; 516080, 3608793; 516038,
flannelbush). ssp. rigida and Malosma laurina) and 3608958; 516013, 3609134; 516008,
(1) Critical habitat units are depicted riparian vegetation that provides 3609701; 515493, 3609581; 515407,
for San Diego County, California, on the adequate space for growth and 3609585; 515418, 3609710; 515497,
maps below. reproduction. 3609804; 515663, 3609889; 515878,
(2) The primary constituent elements (3) Critical habitat does not include 3609887; 515904, 3610258; 515952,
of critical habitat for Fremontodendron manmade structures existing on the 3610432; 515921, 3610608; 516125,
mexicanum are the habitat components effective date of this rule and not 3610698; 515989, 3611007; 515889,
that provide: containing one or more of the primary 3611230; 515567, 3611277; 515159,
(i) Alluvial terraces, benches, and constituent elements, such as buildings, 3611261; 515064, 3611374; thence
associated slopes within 500 feet (152 aqueducts, airports, and roads, and the returning to 515014, 3611487.
meters) of streams, creeks, and land on which such structures are (ii) Map depicting Subunit 1A is
ephemeral drainages where water flows located. located at paragraph (5)(iv) of this entry.
primarily after peak seasonal rains with
(4) Data layers defining map units (iii) Subunit 1B for Fremontodendron
a gradient ranging from 3 to 7 percent;
were created on a base of USGS 1:24,000 mexicanum, Little Cedar Canyon
and stabilized north- to east-facing
slopes associated with steep (9 to 70 maps, and critical habitat units were Subunit, San Diego County, California.
percent) slopes and canyons that then mapped using Universal From USGS 1:24,000 quadrangles
provide space for growth and Transverse Mercator (UTM) coordinates. Dulzura and Otay Mountain, lands
reproduction. (5) Unit 1. bounded by the following UTM NAD27
(ii) Silty loam soils derived from (i) Subunit 1A for Fremontodendron coordinates (E,N): 512964, 3610810;
metavolcanic and metabasic bedrock, mexicanum, Cedar Canyon Subunit, San 513099, 3610671; 513104, 3609924;
mapped as San Miguel—Exchequer Diego County, California. From USGS 513252, 3609684; 513232, 3609584;
Association soil series that provides the 1:24,000 quadrangles Dulzura and Otay 513344, 3609302; 513278, 3609139;
nutrients and substrate with adequate Mountain, lands bounded by the 513174, 3609122; 512911, 3609699;
drainage to support seedling following UTM NAD27 coordinates 512854, 3610125; 512821, 3610402;
establishment and growth. (E,N): 515014, 3611487; 515155, 512834, 3610662; thence returning to
(iii) Open Cupressus forbesii and 3611552; 515695, 3611495; 515848, 512964, 3610810.
Platanus racemosa stands at elevations 3611474; 516142, 3611376; 516372, (iv) Map of Subunits 1A and 1B (Map
of 900 feet (274 meters) to 3,000 feet 3611063; 516368, 3610565; 516091, 2) follows:
* * * * * Dated: May 19, 2007.

David M. Verhey,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
Editorial Note: This document was
received at the Office of the Federal Register
on September 20, 2007.
[FR Doc. 07–4723 Filed 9–26–07; 8:45 am]
BILLING CODE 4310–55–C
ER27SE07.001</GPH>

Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Vail Lake Ceanothus and Mexican Flannelbush

Încărcat de

Informații document

Titlu original

Drepturi de autor

Formate disponibile

Partajați acest document

Partajați sau inserați document

Opțiuni de partajare

Vi se pare util acest document?

Este necorespunzător acest conținut?

Drepturi de autor:

Formate disponibile

Rule: Endangered and Threatened Species: Critical Habitat Designations&#8212 Vail Lake Ceanothus and Mexican Flannelbush

Încărcat de

Drepturi de autor:

Formate disponibile

Thursday,

September 27, 2007

needs alluvial terraces and benches following a fire, whereas, F. mexicanum

determined the PCEs for mexicanum. known.

habitat pursuant to section 4(b)(2) of the

BLM; Government’s responsibility to provide

Nutrition; Food Stamps; Social Services Fremontodendron mexicanum; Government-to-Government

Species When Critical Special

* * * * * Dated: May 19, 2007.

S-ar putea să vă placă și