[Federal Register Volume 71, Number 216 (Wednesday, November 8, 2006)]
[Rules and Regulations]
[Pages 65662-65683]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-9095]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Monardella linoids ssp. viminea (Willowy Monardella); Final
Rule
Federal Register / Vol. 71, No. 216 / Wednesday, November 8, 2006 /
Rules and Regulations
[[Page 65662]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AT92
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Monardella linoides ssp. viminea (Willowy
Monardella)
AGENCY: Fish and Wildlife Service, Interior.
ACTION: Final rule.
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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are
designating critical habitat for Monardella linoides ssp. viminea
(willowy monardella) under the Endangered Species Act of 1973, as
amended (Act). In total, approximately 73 acres (ac) (30 hectares (ha))
fall within the boundaries of the critical habitat, all in San Diego
County, California.
DATES: This rule becomes effective on December 8, 2006.
ADDRESSES: Comments and materials received, as well as supporting
documentation used in the preparation of this final rule, will be
available for public inspection, by appointment, during normal business
hours, at the Carlsbad Fish and Wildlife Office, 6010 Hidden Valley
Road, Carlsbad, CA 92011 (telephone 760-431-9440). The final rule,
economic analysis, and map of critical habitat will also be available
via the Internet at http://www.fws.gov/carlsbad/.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad
Fish and Wildlife Office (telephone 760-431-9440; facsimile 760-431-
9624).
SUPPLEMENTARY INFORMATION:
Role of Critical Habitat in Actual Practice of Administering and
Implementing the Act
Attention to and protection of habitat is paramount to successful
conservation actions. The role that designation of critical habitat
plays in protecting habitat of listed species, however, is often
misunderstood. As discussed in more detail below in the discussion of
exclusions under section 4(b)(2) of the Act, there are significant
limitations on the regulatory effect of designation under section
7(a)(2) of the Act. In brief, (1) designation provides additional
protection to habitat only where there is a Federal nexus; (2) the
protection is relevant only when, in the absence of designation,
destruction or adverse modification of the critical habitat would in
fact take place (in other words, other statutory or regulatory
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and
(3) designation of critical habitat triggers the prohibition of
destruction or adverse modification of that habitat, but it does not
require specific actions to restore or improve habitat.
Currently, only 475 species, or 36 percent of the 1,310 listed
species in the United States under the jurisdiction of the Service,
have designated critical habitat. We address the habitat needs of all
1,310 listed species through conservation mechanisms such as listing,
section 7 consultations, the Section 4 recovery planning process, the
Section 9 protective prohibitions of unauthorized take, Section 6
funding to the States, the Section 10 incidental take permit process,
and cooperative, nonregulatory efforts with private landowners. The
Service believes that it is these measures that may make the difference
between extinction and survival for many species.
In considering exclusions of areas originally proposed for
designation, we evaluated the benefits of designation in light of
Gifford Pinchot Task Force v. United States Fish and Wildlife Service
(Gifford Pinchot). In that case, the Ninth Circuit invalidated the
Service's regulation defining ``destruction or adverse modification of
critical habitat''. In response, on December 9, 2004, the Director
issued guidance to be considered in making section 7 adverse
modification determinations. This critical habitat designation does not
use the invalidated regulation in our consideration of the benefits of
including areas in this final designation. The Service will carefully
manage future consultations that analyze impacts to designated critical
habitat, particularly those that appear to be resulting in an adverse
modification determination. Such consultations will be reviewed by the
Regional Office prior to finalizing to ensure that an adequate analysis
has been conducted that is informed by the Director's guidance.
On the other hand, to the extent that designation of critical
habitat provides protection, that protection can come at significant
social and economic cost. In addition, the mere administrative process
of designation of critical habitat is expensive, time-consuming, and
controversial. The current statutory framework of critical habitat,
combined with past judicial interpretations of the statute, make
critical habitat the subject of excessive litigation. As a result,
critical habitat designations are driven by litigation and courts
rather than biology, and made at a time and under a timeframe that
limits our ability to obtain and evaluate the scientific and other
information required to make the designation most meaningful.
In light of these circumstances, the Service believes that
additional agency discretion would allow our focus to return to those
actions that provide the greatest benefit to the species most in need
of protection.
Procedural and Resource Difficulties in Designating Critical Habitat
We have been inundated with lawsuits for our failure to designate
critical habitat, and we face a growing number of lawsuits challenging
critical habitat determinations once they are made. These lawsuits have
subjected the Service to an ever-increasing series of court orders and
court-approved settlement agreements, compliance with which now
consumes nearly the entire listing program budget. This leaves the
Service with little ability to prioritize its activities to direct
scarce listing resources to the listing program actions with the most
biologically urgent species conservation needs.
The consequence of the critical habitat litigation activity is that
limited listing funds are used to defend active lawsuits, to respond to
Notices of Intent (NOIs) to sue relative to critical habitat, and to
comply with the growing number of adverse court orders. As a result,
listing petition responses, the Service's own proposals to list
critically imperiled species, and final listing determinations on
existing proposals are all significantly delayed.
The accelerated schedules of court-ordered designations have left
the Service with limited ability to provide for public participation or
to ensure a defect-free rulemaking process before making decisions on
listing and critical habitat proposals, due to the risks associated
with noncompliance with judicially imposed deadlines. This in turn
fosters a second round of litigation in which those who fear adverse
impacts from critical habitat designations challenge those
designations. The cycle of litigation appears endless, and is very
expensive, thus diverting resources from conservation actions that may
provide relatively more benefit to imperiled species.
The costs resulting from the designation include legal costs, the
cost of preparation and publication of the designation, the analysis of
the economic effects and the cost of requesting and responding to
public comment, and in some cases the costs
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of compliance with the National Environmental Policy Act (NEPA) (42
U.S.C. 4321 et seq.). These costs, which are not required for many
other conservation actions, directly reduce the funds available for
direct and tangible conservation actions.
Background
In this document, it is our intent to discuss only those topics
directly relevant to the development and designation of critical
habitat or relevant information obtained since the final listing. For
more information on the biology and ecology of Monardella linoides spp.
viminea, refer to the final listing rule published in the Federal
Register on October 13, 1998 (63 FR 54938), and the proposed critical
habitat rule published in the Federal Register on November 9, 2005 (70
FR 67956).
Previous Federal Actions
Previous Federal actions for Monardella linoides ssp. viminea can
be found in the proposed critical habitat rule published on November 9,
2005 (70 FR 67956). On September 26, 2001, a lawsuit was filed against
the Department of the Interior (DOI) and the Service by the California
Native Plant Society (CNPS) alleging, in part, that the Service
improperly determined that designation of critical habitat for
Monardella linoides ssp. viminea was not prudent (CNPS v. Norton, No.
01-CV-1742IEG (JAH). The Service entered into a settlement agreement
with the plaintiffs, under which we agreed to reconsider our ``not
prudent'' finding, and, if prudent, publish a proposed critical habitat
rule for M. l. ssp. viminea in the Federal Register on or before
October 30, 2005, and publish a final critical habitat rule on or
before October 30, 2006. The proposed rule was published November 9,
2005 (70 FR 67956). This final rule complies with the June 2, 2003,
settlement agreement.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Monardella linoides ssp. viminea
during two comment periods, one associated with the publication of the
proposed critical habitat rule on November 9, 2005 (70 FR 67956), and
the second associated with the publication of a notice of availability
for the draft economic analysis (DEA) of the proposed critical habitat
designation, published in the Federal Register on June 1, 2006 (71 FR
31137). We contacted appropriate Federal, State, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule and the DEA.
During the first comment period that opened on November 9, 2005,
and closed on January 9, 2006, we received six comments directly
addressing the proposed critical habitat designation, four from peer
reviewers and two from organizations or individuals. We did not receive
any requests for a public hearing. During the comment period that
opened on June 1, 2006, and closed on July 3, 2006, we received one
additional comment addressing the proposed critical habitat designation
and/or the DEA.
Overall, two commenters supported the designation of critical
habitat for Monardella linoides spp. viminea and none opposed the
designation. Five letters included comments or information, but did not
express support or opposition to the proposed critical habitat
designation. Comments received were grouped into general issue
categories relating to the proposed critical habitat designation and
the DEA and are addressed in the following summary and incorporated
into the final rule as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from six knowledgeable individuals
with scientific expertise that included familiarity with the species,
the geographic region in which the species occurs, and conservation
biology principles. We received responses from four peer reviewers. The
peer reviewers generally disagreed with our decision not to treat the
southern populations of the species as a separate subspecies, our
decision to exempt areas from critical habitat under section 4(a)(3) of
the Act, and our proposal to exclude areas from critical habitat under
section 4(b)(2) of the Act. Additionally, peer reviewers provided
information, clarifications, and suggestions to improve the final
critical habitat rule, particularly the primary constituent elements
(PCEs). We address peer reviewer comments in the following summary and
incorporated them into the final rule as appropriate.
We reviewed all comments received from the peer reviewers and the
public for substantive issues and new information regarding critical
habitat for the Monardella linoides spp. viminea, and we address them
in the following summary.
Peer Reviewer Comments
(1) Comment: Three peer reviewers commented on the taxonomic
identification of Monardella linoides spp. viminea. These comments
emphasized that M. l. spp. viminea should be split into two species
with the southern population designated as a new species, M. stoneana,
based on Elvin and Sanders (2003).
Our Response: We are aware of the taxonomic change and split
proposed by Elvin and Sanders (2003). The Service evaluated this
information and concluded that, although the authors may be correct in
their assessment of these populations, they did not provide adequate
supportive evidence in their paper (Bartel and Wallace 2004). We have
concluded that, until a more comprehensive taxonomic paper is published
that examines all of the relevant taxa or the genus Monardella at a
broader scale, we will continue to use the taxonomic identification of
Monardella linoides spp. viminea as identified in the final listing
rule.
(2) Comment: Three peer reviewers recommended that the Service
analyze all canyons occupied by the species for inclusion as critical
habitat, including the upper watershed portions of Unit 1 (Sycamore
Canyon), Unit 2 (Sycamore, West Sycamore, San Clemente Canyon, Rose,
Elanus, and Spring Canyons), and Unit 4 (San Clemente Canyon),
regardless of Service policy on exclusions and exemptions.
Our Response: Section 4 of the Act requires that we designate
critical habitat based on the best scientific or commercial information
available. Therefore, all habitat known to be occupied and potentially
occupied by the subspecies was analyzed to determine which areas may
contain the features that are essential to the conservation of
Monardella linoides spp. viminea. Habitat occupied at the time of
listing may be included in critical habitat only if the essential
features required by the species may require special management or
protection. We do not include areas where existing management is
sufficient to conserve the species.
Section 4(b)(2) of the Act directs us to consider the economic
impact, national security impact, and any other relevant impacts of
specifying any particular area as critical habitat. An area may be
excluded from critical habitat if it is determined that the benefits of
exclusion outweigh the benefits of specifying a particular area as
critical habitat, unless the failure to designate such an area as
critical habitat will result in the extinction of the species. As
discussed in the proposed rule (70 FR 67956), we have determined that
the benefits of excluding non-Federal lands covered by the San Diego
Multiple
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Species Conservation Plan (MSCP) outweigh the benefits of including
non-Federal lands as critical habitat. We have included a more detailed
analysis of the benefits of this habitat conservation plan (HCP) in
this final rule under the Conservation Partnerships on Non-Federal
Lands section below.
Additionally, section 4(a)(3) of the Act prohibits the Service from
designating as critical habitat any lands or other geographic areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an Integrated Natural Resources Management
Plan (INRMP) prepared under Section 101 of the Sikes Act (16 U.S.C.
670a), if the Secretary of the Interior determines, in writing, that
such plan provides a benefit to the species for which critical habitat
is proposed for designation. As discussed in the proposed rule, the
lands at Marine Corps Air Station (MCAS) Miramar are covered by an
approved INRMP that identifies sensitive natural resources, including
Monardella linoides spp. viminea, and imposes conservation requirements
and monitoring and management actions to protect the species.
Therefore, the INRMP provides a benefit to M. l. spp. viminea. For more
information, see the Relationship of Critical Habitat to Military
Lands--Application of Section 4(a)(3) section below for a detailed
discussion.
(3) Comment: Three peer reviewers commented on the lack of primary
constituent elements (PCEs) applying to Unit 7 (Marron Valley), Unit 8
(Otay Lakes), and Unit 9 (Cedar Canyon).
Our Response: We appreciate the peer reviewers' comments regarding
the ecology of Units 7, 8, and 9 (Marron Valley, Otay Lakes, and Cedar
Canyon, respectively), and have amended the information in the PCEs as
they relate to Monardella linoides spp. viminea. Specifically, we added
boulders, stones and cracks of bedrock in rocky gorges to describe the
growing substrate needed for growth, reproduction, and dispersal in the
southern range of M. l. spp. viminea. For more information see the
Primary Constituent Elements section below.
(4) Comment: One peer reviewer recommended the addition of
``unaltered ephemeral wash ecosystem with no development'' to the PCEs.
Our Response: PCE 2 includes ephemeral drainages as a habitat
requirement for the subspecies. The importance of a natural hydrologic
regime needed to maintain washes, sandbars, and rocky gorges where
Monardella linoides ssp. viminea grows was also discussed in the Water
and Physiological Requirements section of the proposed critical habitat
rule (70 FR 67956) and in the final listing rule (63 FR 54938).
(5) Comment: One peer reviewer recommended the addition of
``continuous ephemeral wash habitat between plants in the upper-most
and lower-most reaches'' to the list of PCEs.
Our Response: The ephemeral wash habitat between known occurrences
is important for the conservation of Monardella linoides ssp. viminea
and was one of the criteria used to identify proposed critical habitat
for this species. The importance of this area was also discussed in the
Primary Constituent Elements section of the proposed rule. We
appreciate the comment and have clarified this point in this final
rule. For more information, see the Criteria Used To Identify Critical
Habitat section below.
(6) Comment: One peer reviewer recommended the addition of
``pollinators and sufficient habitat for pollinators to survive'' to
the list of PCEs.
Our Response: As stated in the proposed critical habitat rule, we
are unaware of any studies documenting specific pollinators of
Monardella linoides ssp. viminea. We did not determine the area needed
to maintain pollinators to be essential in the proposed or this final
critical habitat designation.
(7) Comment: One peer reviewer commented that part of Unit 2 (San
Clemente Canyon part of the Sycamore, West Sycamore, San Clemente
Canyon, Rose, Elanus, and Spring Canyons), below I-15, might not be
essential habitat because the canyon is now a perennial stream due to
alterations in the hydrological system.
Our Response: According to recent survey information, the stream
flowing through this canyon still functions as an ephemeral stream,
although the ground water may be higher in this area than other
locations along the stream. Occurrences in this part of Unit 2 were
present at the last survey in 2002 (Kassebaum, 2006, p. 3).
(8) Comment: One peer reviewer recommended that the Service
renegotiate with the plaintiffs to produce a new proposed designation
of critical habitat that splits Monardella linoides spp. viminea into
two species and have peer review occur earlier in the proposal stage.
Our Response: We believe we used the best available information in
the development of the proposed critical habitat rule. With the
exception of comments received regarding the taxonomic identification
of the southern population of Monardella linoides spp. viminea (see our
response to comment 1), we did not receive information during
the comment periods to suggest that the information used in the
development of the proposal was flawed. Since the Service continues to
recognize the taxonomic identification of M. l. spp. viminea as
presented in the final listing rule, the areas we determined to be
essential to the conservation of the subspecies would have been the
same as those outlined in the proposed critical habitat rule,
regardless of the taxonomic issue.
(9) Comment: One peer reviewer commented that the Service should
recheck data for Elanus Canyon, because the INRMP indicates that the
subspecies does not occur in this canyon.
Our Response: We received no information to refute the INRMP.
Comments received in response to publication of the proposed critical
habitat rule from MCAS Miramar (Pharris 2006, p. 1) indicate that the
information in their INRMP regarding occupied habitat on their land is
up-to-date and correct, including information that the species occurs
in Elanus Canyon.
(10) Comment: One peer reviewer provided additional information on
the benefits of the MCAS Miramar's INRMP. Besides Monardella linoides
spp. viminea being managed under a level II conservation effort, MCAS
Miramar has developed a long-term monitoring plan including monitoring
and a habitat enhancement project to be initiated in 2006.
Our Response: We appreciate the additional information regarding
MCAS Miramar's ongoing management and monitoring actions for the
subspecies and have included the new information in this final rule.
For more information see the Relationship of Military Lands to Critical
Habitat--Application of Section 4(a)(3) section below.
(11) Comment: One peer reviewer commented that the source reference
for survey data on lands owned by the City of San Diego and under
private ownership outlined in Table 1 of the proposed rule was
incorrectly referenced to GIS data from MCAS Miramar.
Our Response: We appreciate the correction and have provided the
corrected citations. Private lands in Sycamore Canyon (pre-2000), City
of San Diego lands in the West Sycamore Canyon (pre-2000), and State
lands in Otay Lakes (2000) had incorrect references to the GIS layer
provided by MCAS (no date). The correct references are CNDDB (2005) for
the private lands
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in Sycamore Canyon (pre-2000), and GIS layer from the Service (2000)
for the City of San Diego lands in the West Sycamore Canyon (pre-2000)
and State lands in Otay Lakes (2000).
(12) Comment: One peer reviewer recommended that the Service review
current California Department of Fish and Game Natural Diversity
Database (CNDDB) and herbarium specimens at Rancho Santa Ana Botanic
Garden, University of California (UC)-Riverside, UC-Irvine, and the San
Diego Natural History Museum to identify any additional occurrences
before finalizing critical habitat boundaries.
Our Response: We reviewed the most current CNDDB records (2006) and
herbarium specimens from the four organizations listed above and found
four new or expanded records for this species that were submitted to
CNDDB after the publication of the proposed rule (70 FR 67956). These
records were recorded for Monardella stoneana (occurrence numbers 1, 2,
7, and 9), which we consider as Monardella linoides spp. viminea (see
response to comment 1). Each of the four new occurrences are
within areas identified as habitat essential for the conservation of M.
l. spp. viminea in the proposed rule. Therefore, this new information
does not change the final critical habitat designation.
(13) Comment: One peer reviewer commented that the final rule
should clearly state that the consequence of the Gifford Pinchot
decision reflects the Director of the Service's guidance and that this
guidance should be spelled out clearly.
Our Response: The Service has provided clarification of the
consequence of the Gifford Pinchot decision in this final rule. For
more information, see Application of the Jeopardy and Adverse
Modification Standards for Actions Involving Effects to Monardella
linoides spp. viminea and Its Critical Habitat section below.
(14) Comment: One peer reviewer recommended deleting paragraphs
that describe section 3(5)(A) of the Act since that section is not
applicable to the rule.
Our Response: We have not included the paragraphs describing
section 3(5)(A) of the Act in this final rule because no habitat was
determined not to meet the definition of critical habitat under section
3(5)(A) of the Act.
(15) Comment: One peer reviewer recommended that the explanation of
the new Section 4(a)(3)(b) should quote the statute instead of
paraphrasing, and should explain what constitutes a ``benefit'' under
the law or Service guidelines.
Our Response: In this final rule, we quote the statute and provide
clarification of what constitutes a benefit under section 4(a)(3)(b)
(see section titled Relationship of Military Lands to Critical
Habitat--Application of Section 4(a)(3)). As stated below, MCAS
Miramar's INRMP will benefit the species by providing species
management under a level II conservation effort that includes avoiding
or minimizing the effect of planning action on endangered species and
wetlands. In addition to the station-wide population census, MCAS
Miramar has a long-term monitoring plan in place, and has planned a
habitat enhancement project to be implemented in 2006.
(16) Comment: One peer reviewer commented that the Service has not
made a clear statement about the determination of habitat being
exempted on MCAS Miramar. The Service has shown a benefit, because the
core of the northern population is located on the base, but the Service
should show that Monardella linoides spp. viminea is adequately
protected.
Our Response: We believe the level II conservation effort
adequately protects the subspecies. Additionally, the MCAS Miramar
conducts a station-wide population census under a long-term monitoring
plan and has initiated a habitat enhancement project that will benefit
the species. Refer to section entitled Relationship of Military Lands
to Critical Habitat--Application of Section 4(a)(3) for more
information on this exemption.
(17) Comment: One peer reviewer recommended adding a summary table
that shows acres of occupied habitat broken down by acres protected,
planned for protection, and acres not targeted for protection.
Our Response: A summary table outlining this information is
provided in Table 1 of the draft economic analysis (DEA) of the
proposed critical habitat designation for willowy monardella (CRA
International 2006). In this final rule, we have provided acreages for
occupied areas exempted from proposed critical habitat and excluded
from final critical habitat based on benefits provided by MCAS
Miramar's IRNMP, the San Diego County MSCP, and the Bureau of Land
Management's (BLM) Otay Mountain wilderness designation. For more
information, see Relationship of Military Lands to Critical Habitat--
Application of Section 4(a)(3) section below for a detailed discussion.
(18) Comment: One peer reviewer commented that our conclusion that
``any management plan will almost always provide more benefit than the
critical habitat designation'' is not reasonable.
Our Response: As stated in the Supplementary Information section of
the proposed critical habitat rule, section 7(a)(2) of the Act limits
adverse effects to the species either through jeopardy or destruction
or adverse modification of its habitat where there is a Federal nexus.
It does not affect purely State or private actions on State or private
land, nor does it require positive habitat improvements or enhancement
of the species' status. Thus, the Service believes that any management
plan that has enhancement or recovery as the management standard will
almost always provide more benefit than the designation of critical
habitat.
(19) Comment: One peer reviewer commented that the Service and BLM
should work together to prepare a fire suppression plan for the
wilderness area (Otay Mountain) that would minimize the likelihood of
fire suppression activities destroying plants. The peer reviewer also
recommended adding a discussion of how designation of critical habitat
could help accomplish the development of such a plan.
Our Response: The Service agrees that development of a fire
suppression plan could minimize impacts to Monardella linoides spp.
viminea plants and other sensitive species and their habitats, and
looks forward to working with BLM to prepare a fire suppression plan
for the wilderness area (Otay Mountain). Because occupied habitat for
M. l. spp. viminea on Otay Mountain is well known to BLM, designation
of critical habitat would not appreciably improve identification of the
species and its habitat. Moreover, the designation of critical habitat
would not impose any requirement on BLM to develop a fire suppression
plan. The Service will carefully consider the impacts of fire
suppression plans on the species and its habitat on Otay Mountain in
future consultations with BLM under section 7 of the Act.
Public Comments Related to Distribution and Status
(20) Comment: One commenter indicated that Monardella linoides ssp.
viminea still occurs in Carroll Canyon, because the Environmental
Impact Report for the Carroll Canyon Business Park states that not all
plants were to be removed. The commenter also thought that harvested
plants from Carroll Canyon were going to be planted back to Rose Canyon
in addition to other options, but not at Lopez Canyon because that
canyon already had its own source of local plants, grown from seed,
which are being re-established.
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Our Response: The Service's biological opinion for the Carroll
Canyon Business Park states that all plants, estimated to total 122 in
number, would be removed from Carroll Canyon, and that these plants
should be considered for transplantation to Lopez Canyon (USFWS 2003,
pp. 7 and 8). Rose Canyon was not part of the proposed action for the
Carroll Canyon Business Park consultation. The final sites for
transplantation will depend on the outcome of genetic testing currently
underway (USFWS 2003, p. 7).
(21) Comment: One commenter indicated that Murphy Canyon may still
have Monardella linoides ssp. viminea outside of MCAS Miramar.
Our Response: As stated in the proposed rule, we are aware of only
two documented occurrences of the subspecies in Murphy Canyon, both
located on MCAS Miramar (CNDDB 1997, occurrence numbers 15 and 30;
CNDDB 2001, occurrence numbers 15 and 30). However, the subspecies has
not been documented there since 2002, and is believed to have been
extirpated (Kassebaum 2005).
(22) Comment: One commenter indicated that Cemetery Canyon contains
suitable habitat, and it should be designated as unoccupied critical
habitat.
Our Response: Monardella linoides spp. viminea is believed to have
been extirpated from Cemetery Canyon prior to the species' listing in
1998 (CNDDB 2001, occurrence number 3; Elvin and Sanders 2003, p. 428).
This site is documented as having an altered drainage pattern (CNDDB
2001), and is, therefore, unlikely to contain the PCEs required by this
species. Thus, Cemetery Canyon is not considered to have habitat with
features essential to the conservation of this subspecies.
Additionally, we feel there is sufficient habitat designated for
critical habitat without designating Cemetery Canyon; the habitat of
all known populations is already protected or will be designated as
critical habitat.
(23) Comment: One commenter suggested that overgrazing, not fire,
may have caused the loss of Monardella linoides ssp. viminea in the
vicinity of Otay Lake.
Our Response: The statement in the proposed critical habitat rule
regarding the fire at Otay Lake was intended to demonstrate that,
although severe fire could be detrimental to the plant, Monardella
linoides spp. viminea is adapted to fire and survey observations
support this (City 2004). We do not have any information to suggest
that overgrazing may have caused the loss of the subspecies in the
vicinity of Otay Lake.
(24) Comment: One commenter suggested that hydrology changes and
lack of weed management caused the decline of Monardella linoides spp.
viminea observed in Sycamore Canyon, rather than drought as mentioned
in the proposed rule.
Our Response: The statement in the proposed critical habitat rule
that drought may have contributed to the subspecies' decline in
Sycamore Canyon is based on survey reports written by the City of San
Diego (City). According to these reports, observations from the yearly
surveys suggest that rainfall patterns have influenced the population
at Sycamore Canyon (City 2002, p. 3; City 2003, p. 3; City 2004, p. 3).
Observations included other sites, but the greatest numbers of dormant
or dead plants were found at the Sycamore Canyon survey site in 2002.
While changes in hydrology or lack of weed management may have affected
the species in Sycamore Canyon, the survey reports did not contain any
information relating the subspecies' decline to these potential
impacts.
(25) Comment: Three commenters suggested that Monardella linoides
spp. viminea should be split into two species with the southern
population being designated as a new species, based on Elvin and
Sanders (2003).
Our Response: Please refer to our response to comment 1.
Public Comments Related to Protection Provided by Critical Habitat
(26) Comment: One commenter disagreed with the statement that
designating critical habitat provides little additional protection to
species, based on an article in BioScience (Taylor et al. 2005, pp.
360-367) that indicates otherwise.
Our Response: As discussed in the Supplementary Information section
and other sections of this rule, we believe that, in most cases,
various conservation mechanisms provide greater incentives and
conservation benefits than does the designation of critical habitat.
These include the section 4 recovery planning process, section 6
funding to the States, and cooperative programs with private and public
landholders and Tribal nations. Critical habitat designation can
provide an additional level of species protection by focusing
specifically on the impacts to habitat loss, and can address cumulative
effects of habitat loss in certain circumstances, but this protection
can only be provided if there is a Federal nexus for agencies that are
planning actions that may impact the designated critical habitat. It is
our experience that landowners generally react negatively to having
their property designated as critical habitat, and they are less
inclined to cooperate in the conservation of the species in question as
a consequence. Conversely, cooperative conservation efforts in the
absence of critical habitat often provide greater conservation benefits
to the species.
Comments Related to Exclusions and Exemptions From Critical Habitat
(27) Comment: One commenter stated that critical habitat should be
designated on all extant populations regardless of an existing HCP or
INRMP. Additionally, the commenter stated that INRMPs do not provide
adequate protection since political pressure can allow impacts that are
not anticipated.
Our Response: Refer to our responses to comments 2,
10, and 15. Our experience under the MCAS Miramar
INRMP is that the Marine Corps has demonstrated a continuing commitment
to implement the plan.
Summary of Changes From Proposed Rule
In preparing the final critical habitat designation for Monardella
linoides spp. viminea, we reviewed and considered comments from peer
reviewers and the public on the proposed designation of critical
habitat published on November 9, 2005 (70 FR 67956), as well as public
comments on the DEA published on June 1, 2006 (71 FR 31137). As a
result of comments received on the proposed rule and the DEA, and a
reevaluation of the proposed critical habitat boundaries, we made
changes to our proposed designation, as follows:
(1) The PCEs were modified to include the range in variability of
habitat for all known populations of Monardella linoides spp. viminea.
The modifications in this final rule include adding a description of
habitat with essential features in the southern portion of the range of
M. l. spp. viminea to the sections entitled Space for Individual and
Population Growth and Normal Behavior, Water and Physiological
Requirements, and Primary Constituents for Monardella linoides spp.
viminea. PCE 1 was revised to include boulders and stones and cracks of
bedrock in rocky gorges to describe the growing substrate needed for
growth, reproduction, and dispersal of M. l. spp. viminea in the
southern portion of its range. PCE 2 was revised to include rocky
gorges to describe the drainages needed to maintain the necessary
dynamic habitat processes for the southern range of M. l. spp. viminea.
PCE 3 was revised to include the
[[Page 65667]]
chaparral habitat type to describe the adjacent habitat that allows for
adequate sunlight for nutrient uptake for photosynthesis in the
southern range of M. l. spp. viminea.
(2) We re-evaluated areas determined to contain habitat with
essential features in Unit 1 (Sycamore Canyon), and removed areas that
did not contain the PCEs for the subspecies. These revisions resulted
in the removal of the 1 ac of land owned by the Padre Dam Municipal
Water District, and the removal of 42 ac (17 ha) of private land,
reducing the final critical habitat acreage for Unit 1 from 115 ac (47
ha) to 73 ac (30 ha).
Critical Habitat
Critical habitat is defined in section 3 of the Act as--(i) The
specific areas within the geographical area occupied by a species, at
the time it is listed in accordance with the Act, on which are found
those physical or biological features (I) essential to the conservation
of the species and (II) that may require special management
considerations or protection; and (ii) specific areas outside the
geographical area occupied by a species at the time it is listed, upon
a determination that such areas are essential for the conservation of
the species. Conservation, as defined under section 3 of the Act means
to use and the use of all methods and procedures which are necessary to
bring any endangered species or threatened species to the point at
which the measures provided pursuant to the Act are no longer
necessary. Such methods and procedures include, but are not limited to,
all activities associated with scientific resources management such as
research, census, law enforcement, habitat acquisition and maintenance,
propagation, live trapping, and transplantation, and, in the
extraordinary case where population pressures within a given ecosystem
cannot be otherwise relieved, may include regulated taking.
Conservation is a process which contributes to improving the status of
the species. Individual actions may still be considered conservation
even though in and of themselves they do not remove the species' need
for protection under the Act.
Critical habitat receives protection under section 7 of the Act
through the prohibition against destruction or adverse modification of
critical habitat with regard to actions carried out, funded, or
authorized by a Federal agency. Section 7 requires consultation on
Federal actions that are likely to result in the destruction or adverse
modification of critical habitat. The designation of critical habitat
does not affect land ownership or establish a refuge, wilderness,
reserve, preserve, or other conservation area. Such designation does
not allow government or public access to private lands. Section 7 is a
purely protective measure and does not require implementation of
restoration, recovery, or enhancement measures.
To be included in a critical habitat designation, the habitat
within the geographical area occupied by the species at the time of
listing must first have features that are essential to the conservation
of the species. Critical habitat designations identify, to the extent
known using the best scientific data available, habitat areas that
provide essential life cycle needs of the species (i.e., areas on which
are found the primary constituent elements, as defined at 50 CFR
424.12(b)).
Habitat occupied at the time of listing may be included in critical
habitat only if the essential features thereon may require special
management or protection. Thus, we do not include areas where existing
management is sufficient to conserve the species. (As discussed below,
such areas may also be excluded from critical habitat pursuant to
section 4(b)(2).) Areas outside of the geographic areas occupied by the
species at the time of listing may be included in critical habitat only
if we determine that such areas are essential for the conservation of
the species. Accordingly, when the best available scientific data do
not demonstrate that the conservation needs of the species require
additional areas, we will not designate critical habitat in areas
outside the geographical area occupied by the species at the time of
listing. An area currently occupied by the species but not known to be
occupied at the time of listing will likely, but not always, be
essential to the conservation of the species and, therefore, typically
would be included in the critical habitat designation.
The Service's Policy on Information Standards Under the Endangered
Species Act, published in the Federal Register on July 1, 1994 (59 FR
34271), and section 515 of the Treasury and General Government
Appropriations Act for Fiscal Year 2001 (Pub. L. 106-554; H.R. 5658)
and the associated Information Quality Guidelines issued by the
Service, provide criteria, establish procedures, and provide guidance
to ensure that decisions made by the Service represent the best
scientific data available. They require Service biologists to the
extent consistent with the Act and with the use of the best scientific
data available, to use primary and original sources of information as
the basis for recommendations to designate critical habitat. When
determining which areas are critical habitat, a primary source of
information is generally the listing package for the species.
Additional information sources include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. All information is used in
accordance with the provisions of section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658) and the associated Information Quality Guidelines
issued by the Service.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific data available. Habitat is often
dynamic, and species may move from one area to another over time.
Furthermore, we recognize that designation of critical habitat may not
include all of the habitat areas that may eventually be determined to
be necessary for the recovery of the species. For these reasons,
critical habitat designations do not signal that habitat outside the
designation is unimportant or may not be required for recovery.
Areas that support populations but are outside the critical habitat
designation, will continue to be subject to conservation actions
implemented under section 7(a)(1) of the Act and to the regulatory
protections afforded by the section 7(a)(2) jeopardy standard, as
determined on the basis of the best available information at the time
of the action. Federally funded or permitted projects affecting listed
species outside their designated critical habitat areas may still
result in jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans, or other species
conservation planning efforts if new information available to these
planning efforts calls for a different outcome.
Primary Constituent Elements
In accordance with section 3(5)(A)(i) of the Act and regulations at
50 CFR 424.12, in determining which areas to designate as critical
habitat, we consider those physical or biological features (primary
constituent elements, PCEs) that are essential to the conservation of
[[Page 65668]]
the species, and within areas occupied by the species at the time of
listing that may require special management considerations or
protection. These include, but are not limited to space for individual
and population growth and for normal behavior; food, water, air, light,
minerals, or other nutritional or physiological requirements; cover or
shelter; sites for breeding, reproduction, and rearing (or development)
of offspring; and habitats that are protected from disturbance or are
representative of the historic geographical and ecological
distributions of a species.
The known primary constituent elements required for Monardella
linoides spp. viminea are derived from the biological needs of the M.
l. spp. viminea as described below and in the proposed critical habitat
designation published in the Federal Register on November 9, 2005 (70
FR 67956).
Primary Constituent Elements for Monardella linoides spp. viminea
Under our regulations, we are required to identify the known
physical and biological features (PCEs) essential to the conservation
of the Monardella linoides spp. viminea. All areas considered for
designation as critical habitat for M. l. spp. viminea were within the
geographical areas occupied by the species at the time it was listed
and contain sufficient PCEs to support at least one life history
function.
Based on our current knowledge of the life history, biology, and
ecology of the subspecies and the requirements of the habitat to
sustain the essential life history functions of the subspecies, we have
determined that the Monardella linoides spp. viminea's PCEs are:
(1) Coarse, rocky, sandy alluvium on benches, stabilized sandbars,
channel banks, sandy washes, and/or among boulders and stones, and/or
in cracks of bedrock in rocky gorges along and within the ephemeral
drainages that provide space for growth, reproduction, and dispersal;
(2) Ephemeral drainages where water flows only after peak seasonal
rains and major flooding events that periodically scour riparian
vegetation and redistribute alluvial material by eroding and developing
stream channels, benches, sandbars, and rocky gorges, thus maintaining
the necessary dynamic habitat processes for Monardella linoides spp.
viminea; and
(3) Coastal sage, riparian scrub, or chaparral with an open and
semi-open canopy and little or no herbaceous understory situated along
ephemeral drainages and adjacent floodplains to ensure that Monardella
linoides spp. viminea receives adequate sunlight for nutrient uptake
for photosynthesis.
This designation is designed for the conservation of those areas
containing PCEs necessary to support the life history functions that
were the basis for the proposal. Because not all life history functions
require all the PCEs, not all critical habitat will contain all the
PCEs.
Units are designated based on sufficient PCEs being present to
support one or more of the species' life history functions. Some units
contain all PCEs and support multiple life processes, while some units
contain only a portion of the PCEs necessary to support the species'
particular use of that habitat. Where a subset of the PCEs is present
at the time of designation, this rule protects those PCEs and thus the
conservation function of the habitat.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific data available in determining areas that contain the
features that are essential to the conservation of Monardella linoides
spp. viminea. This includes data in the final rule listing the species
as endangered (published in the Federal Register on October 13, 1998
(63 FR 54938)), reports submitted during section 7 consultations,
research published in peer-reviewed articles and agency reports, and
regional Geographic Information System (GIS) coverages. We have also
reviewed available information that pertains to the habitat
requirements of the subspecies. The material included data in reports
submitted during section 7 consultations; research published in peer-
reviewed articles and agency reports; and regional Geographic
Information System (GIS) coverages. We designated no areas outside the
geographical area occupied by the species at the time of listing.
We used the following criteria to identify habitat that contains
the features essential to Monardella linoides spp. viminea: (1) Areas
known to be occupied at the time of listing or known to be currently
occupied; and (2) ephemeral washes and drainage areas associated with
documented occurrences.
When determining critical habitat boundaries, we made every effort
to avoid including developed areas such as buildings, paved areas, and
other structures that lack PCEs for the Monardella linoides spp.
viminea within the boundaries of critical habitat. The scale of the
maps prepared under the parameters for publication within the Code of
Federal Regulations may not reflect the exclusion of such developed
areas. Any such structures and the land under them inadvertently left
inside critical habitat boundaries shown on the maps of this final rule
have been excluded by text in the rule and are not designated as
critical habitat. Therefore, Federal actions limited to these areas
would not trigger section 7 consultation, unless they affect the
species or adjacent critical habitat.
We are designating critical habitat in areas that we determined
were occupied at the time of listing, and that contain sufficient
primary constituent elements (PCEs) to support life history functions
essential for the conservation of the species. Lands were designated
based on sufficient PCEs being present to support life processes of
Monardella linoides spp. viminea. Some lands contain all PCEs and
support multiple life processes. Some lands contain only a portion of
the PCEs necessary to support M. l. spp. viminea's particular use of
that habitat.
Section 10(a)(1)(B) of the Act authorizes us to issue permits for
the take of listed animal species incidental to otherwise lawful
activities. An incidental take permit application must be supported by
a habitat conservation plan (HCP) that identifies conservation measures
that the permittee agrees to implement for the species to minimize and
mitigate the impacts of the requested incidental take. Often HCPs also
incorporate conservation measures to benefit listed plant species
although take of plant species is not prohibited under the Act. We
often exclude non-Federal public lands and private lands that are
covered by an existing operative HCP and executed implementation
agreement (IA) under section 10(a)(1)(B) of the Act from designated
critical habitat where we determine that the benefits of exclusion
outweigh the benefits of inclusion as discussed in section 4(b)(2) of
the Act.
A brief discussion of each area designated as critical habitat is
provided in the unit descriptions below. Additional detailed
documentation concerning the essential nature of these areas is
contained in our supporting record for this rulemaking.
Special Management Considerations or Protections
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing that contain one or
more PCEs may require special management considerations or protections.
As stated in the final listing rule (63 FR 54938), threats to
Monardella linoides ssp. viminea include habitat alteration resulting
from
[[Page 65669]]
urban development, sand and gravel mining, human activities (i.e., off-
road vehicle (ORV) use and trampling), and invasion of nonnative
species. These activities could impact the PCEs determined to be
essential for conservation of M. l. ssp. viminea, and thus require
special management considerations or protections.
Urban development and sand and gravel mining upstream of Monardella
linoides ssp. viminea occurrences may alter the hydrologic regime
needed to maintain the habitat characteristics required by M. l. ssp.
viminea. Conversion of intermittent water flows to persistent water
flows may increase scour and erode terraces and benches, washing away
rooted plants and reducing available habitat (PCEs 1 and 2). Kelly and
Burrascano (2006, p. 4) attribute the disappearance of terraces in
Lopez Canyon to increased erosion associated with urban runoff from
upstream development. The use of pesticides or herbicides in
residential and commercially landscaped areas within the watershed may
impact water quality if used upslope or above a stream (PCE 2). Water
diversion, such as water removal from the drainage system occupied by
the subspecies, could reduce the amount of water flowing downstream
following seasonal flooding events. Such reductions in downstream water
flow may result in decreased deposition of alluvial material and a
subsequent reduction in the amount of available habitat (PCEs 1 and 2).
Disruption of the hydrologic cycle could also result in a decrease in
the number of seeds that could have been transported downstream during
seasonal flooding events, thereby fragmenting populations (PCE 2).
Special management may be required to reduce impacts to M. l. ssp.
viminea habitat resulting from alterations in the hydrologic regime
associated with development in the local watershed. Such management may
include bank replacement or stabilization to maintain the substrate,
restoration of intermittent water flows, erosion and runoff control
measures, and prohibitions against grading during the rainy season.
Alteration of the hydrologic regime can also lead to an increase in
native and nonnative plant species throughout riparian areas where
Monardella linoides ssp. viminea occurs. Increased water flow
associated with urban runoff has led to dense stands of riparian
vegetation in the upper reaches of Lopez Canyon where M. l. ssp.
viminea once occurred (Kelly and Burrascano 2006, p. 39). Increases in
riparian vegetation within ephemeral drainages may also be responsible
for losses of M. l. ssp. viminea in lower San Clemente Canyon.
Conversely, decreased water availability may result in conversion of
habitat from mesic to xeric, in which more drought tolerant plants
could expand into M. l. ssp. viminea habitat and create unnaturally
high canopy cover or dense riparian vegetation, rendering the habitat
unsuitable for M. l. ssp. viminea. Invasive species control may be
required to maintain an open or semi-open canopy of coastal sage and
riparian scrub with minimal herbaceous understory, as is required for
M. l. ssp. viminea (PCE 3) to persist.
Human activities (e.g., ORV activities and trampling) along streams
can change the character of the riparian area and associated vegetation
in ways that make portions of the riparian corridor less suitable for
Monardella linoides ssp. viminea habitat. For example, heavy trampling
may erode or denude stream banks and washes, thereby reducing or
eliminating available habitat (PCE 1). Special management (i.e., bank
replacement or stabilization) and prohibitions against ORV use during
the rainy season may be required to maintain the substrate and reduce
impacts to M. l. ssp. viminea habitat resulting from human use within
the local watershed.
Critical Habitat Designation
The areas described below constitute our best assessment of areas
occupied at the time of listing that meet the definition of critical
habitat. Table 1 outlines the area determined to meet the definition of
critical habitat, including the area excluded from the final critical
habitat designation, and the one area designated as final critical
habitat for Monardella linoides spp. viminea.
Table 1.--Amount of Land Determined To Meet the Definition of Critical Habitat, Amount of Land Excluded From the
Final Critical Habitat Designation, and Amount of Land Designated Critical Habitat for Monardella linoides spp.
Viminea
----------------------------------------------------------------------------------------------------------------
Land meeting the Land excluded or
Geographic area definition of exempted from Critical habitat
critical habitat critical habitat
----------------------------------------------------------------------------------------------------------------
Unit 1 Sycamore Canyon............ 73 ac (30 ha)........ 0 ac (0 ha)......... 73 ac (30 ha)
Unit 2 MCAS Miramar............... 1,863 ac (754 ha).... 1,863 ac (754 ha)*.. 0 ac (0 ha)
Unit 3 Sycamore, West Sycamore and 207 ac (84 ha)....... 207 ac (84 ha) \1\.. 0 ac (0 ha)
Spring Canyons.
Unit 4 San Clemente Canyon........ 9 ac (4 ha).......... 9 ac (4 ha) \1\..... 0 ac (0 ha)
Unit 5 Elanus Canyon.............. 13 ac (5 ha)......... 13 ac (5 ha) \1\.... 0 ac (0 ha)
Unit 6 Lopez Canyon............... 77 ac (31 ha)........ 77 ac (31 ha) \1\... 0 ac (0 ha)
Unit 7 Marron Valley.............. 42 ac (17 ha)........ 42 ac (17 ha) \1\... 0 ac (0 ha)
Unit 8 Otay Lakes................. 146 ac (59 ha)....... 146 ac (59 ha) \1\.. 0 ac (0 ha)
Unit 9 Otay Mountain.............. 67 ac (27 ha)........ 67 ac (27 ha) \2\... 0 ac (0 ha)
-----------------------------------------------------------------------------
Totals........................ 2,497 ac (1,011 ha).. 2,424 ac (981 ha)... 73 ac (30 ha)
----------------------------------------------------------------------------------------------------------------
*Exempted from critical habitat under section 4(a)(3) of the Act in the proposed rule (70 FR 67956).
\1\ Excluded from final critical habitat under section 4(b)(2) based on the San Diego MSCP.
\2\ Excluded from final critical habitat under section 4(b)(2) based on the BLM's Wilderness designation and
Memorandum of Understanding (MOU) with the MSCP.
Below, we present a brief description of the area included in the
final designation and reasons why this area meets the definition of
critical habitat for Monardella linoides spp. viminea.
Unit 1: Sycamore Canyon
Unit 1 consists of 73 ac (30 ha) in the Sycamore Canyon area and
supports one of the largest occurrences of Monardella linoides ssp.
viminea (CNDDB 2001). This unit was known to be occupied at the time of
listing and is currently known to be occupied. Unit 1 contains all of
the PCEs identified for M. l. ssp. viminea and represents 1 of the 10
specific areas in San Diego County that support this species and 1 of
only 15
[[Page 65670]]
occurrences of M. l. ssp. viminea (see proposed critical habitat
designation for more information on species distribution; 70 FR 67956).
Given the restricted range and low numbers of occurrences, this unit is
necessary to minimize the risk of extinction from random events and
urban development. In Unit 1, habitat with features essential to the
conservation of Monardella linoides ssp. viminea may require special
management to minimize impacts by nonnative invasive weeds; fire;
indirect and direct effects of development, including altered
hydrology; and recreational activities. The majority of lands within
Unit 1 are in an area proposed to be set aside as an on-site preserve
to benefit M. l. ssp. viminea conservation in this section of Sycamore
Canyon.
All of Unit 1 is located on private lands within the City of
Santee. These private lands are the site of the being proposed for the
Fanita Ranch development project. Fanita Ranch is currently developing
an HCP that will serve as the foundation for the City of Santee's
subarea plan under the MSCP. As stated in the proposed critical habitat
rule (70 FR 67956), we would have considered excluding this area from
the final designation if we had received a proposed or approved HCP
that provides benefits for Monardella linoides ssp. viminea, or had
entered into an approved conservation agreement with Fanita Ranch that
provides assurances of adequate conservation measures to be implemented
by Fanita Ranch to protect and manage for the species on their lands.
We did not receive an HCP or enter into a conservation agreement, and,
thus, we are not excluding lands owned by Fanita Ranch from this final
designation of critical habitat.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7 of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to destroy or adversely modify critical habitat. In our
regulations at 50 CFR 402.02, we define destruction or adverse
modification as ``a direct or indirect alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species. Such alterations include, but are not
limited to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the habitat to
be critical.'' However, recent decisions by the 5th and 9th Circuit
Court of Appeals have invalidated this definition. Pursuant to current
national policy and the statutory provisions of the Act, destruction or
adverse modification is determined on the basis of whether, with
implementation of the proposed Federal action, the affected critical
habitat would remain functional (or retain the current ability for the
primary constituent elements to be functionally established) to serve
the intended conservation role for the species.
Section 7(a) of the Act requires Federal agencies, including the
Service, to evaluate their actions with respect to any species that is
proposed or listed as endangered or threatened and with respect to its
critical habitat, if any is proposed or designated. Regulations
implementing this interagency cooperation provision of the Act are
codified at 50 CFR part 402
Section 7(a)(4) of the Act requires Federal agencies to confer with
us on any action that is likely to jeopardize the continued existence
of a species proposed for listing or result in destruction or adverse
modification of proposed critical habitat. This is a procedural
requirement only. However, once a proposed species becomes listed, or
proposed critical habitat is designated as final, the full prohibitions
of section 7(a)(2) apply to any Federal action. The primary utility of
the conference procedures is to maximize the opportunity for a Federal
agency to adequately consider proposed species and critical habitat and
avoid potential delays in implementing their proposed action as a
result of the section 7(a)(2) compliance process, should those species
be listed or the critical habitat designated.
Under conference procedures, the Service may provide advisory
conservation recommendations to assist the agency in eliminating
conflicts that may be caused by the proposed action. The Service may
conduct either informal or formal conferences. Informal conferences are
typically used if the proposed action is not likely to have any adverse
effects to the proposed species or proposed critical habitat. Formal
conferences are typically used when the Federal agency or the Service
believes the proposed action is likely to cause adverse effects to
proposed species or critical habitat, inclusive of those that may cause
jeopardy or adverse modification.
The results of an informal conference are typically transmitted in
a conference report; while the results of a formal conference are
typically transmitted in a conference opinion. Conference opinions on
proposed critical habitat are typically prepared according to 50 CFR
402.14, as if the proposed critical habitat were designated. We may
adopt the conference opinion as the biological opinion when the
critical habitat is designated, if no substantial new information or
changes in the action alter the content of the opinion (see 50 CFR
402.10(d)). As noted above, any conservation recommendations in a
conference report or opinion are strictly advisory.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
compliance with the requirements of section 7(a)(2) will be documented
through the Service's issuance of: (1) A concurrence letter for Federal
actions that may affect, but are not likely to adversely affect, listed
species or critical habitat; or (2) a biological opinion for Federal
actions that may affect, but are likely to adversely affect, listed
species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to result in jeopardy to a listed species or the destruction or
adverse modification of critical habitat, we also provide reasonable
and prudent alternatives to the project, if any are identifiable.
``Reasonable and prudent alternatives'' are defined at 50 CFR 402.02 as
alternative actions identified during consultation that can be
implemented in a manner consistent with the intended purpose of the
action, that are consistent with the scope of the Federal agency's
legal authority and jurisdiction, that are economically and
technologically feasible, and that the Director believes would avoid
jeopardy to the listed species or destruction or adverse modification
of critical habitat. Reasonable and prudent alternatives can vary from
slight project modifications to extensive redesign or relocation of the
project. Costs associated with implementing a reasonable and prudent
alternative are similarly variable.
Regulations at 50 CFR 402.16 require Federal agencies to reinitiate
consultation on previously reviewed actions in certain circumstances,
including where a new species is listed or critical habitat is
subsequently designated that may be affected, if the Federal agency has
retained discretionary involvement or control
[[Page 65671]]
over the action or such discretionary involvement or control is
authorized by law. Consequently, some Federal agencies may request
reinitiation of consultation with us on actions for which formal
consultation has been completed, if those actions may affect
subsequently listed species or designated critical habitat or adversely
modify or destroy proposed critical habitat.
Federal activities that may affect Monardella linoides spp. viminea
or its designated critical habitat will require section 7 consultation
under the Act. Activities on State, Tribal, local or private lands
requiring a Federal permit (such as a permit from the Army Corps of
Engineers (Corps) under section 404 of the Clean Water Act or a permit
under section 10(a)(1)(B) of the Act from the Service) or involving
some other Federal action (such as funding from the Federal Highway
Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) will also be subject to the section 7
consultation process. Federal actions not affecting listed species or
critical habitat, and actions on State, Tribal, local or private lands
that are not federally-funded, authorized, or permitted, do not require
section 7 consultations.
Application of the Jeopardy and Adverse Modification Standards for
Actions Involving Effects to Monardella linoides spp. viminea and Its
Critical Habitat
Jeopardy Standard
Prior to designation of critical habitat, the Service has applied
an analytical framework for Monardella linoides spp. viminea jeopardy
analyses that relies heavily on the importance of core area populations
to the survival and recovery of the M. l. spp. viminea. The section
7(a)(2) analysis is focused not only on these populations but also on
the habitat conditions necessary to support them.
The jeopardy analysis usually expresses the survival and recovery
needs of Monardella linoides spp. viminea in a qualitative fashion
without making distinctions between what is necessary for survival and
what is necessary for recovery. Generally, if a proposed Federal action
is incompatible with the viability of the affected core area
population(s), inclusive of associated habitat conditions, a jeopardy
finding is considered to be warranted, because of the relationship of
each core area population to the survival and recovery of the species
as a whole.
Adverse Modification Standard
For the reasons described in the Director's December 9, 2004,
memorandum, the key factor related to the adverse modification
determination is whether, with implementation of the proposed Federal
action, the affected critical habitat would remain functional (or
retain the current ability for the primary constituent elements to be
functionally established) to serve its intended conservation role for
the species. Generally, the conservation role of M. l. spp. viminea
critical habitat units is to support viable core area populations.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat those activities involving a Federal action that may destroy or
adversely modify such habitat, or that may be affected by such
designation. Activities that may destroy or adversely modify critical
habitat may also jeopardize the continued existence of the species.
Activities that may destroy or adversely modify critical habitat
are those that alter the PCEs to an extent that the conservation value
of critical habitat for Monardella linoides spp. viminea is appreciably
reduced. Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and therefore result in
consultation for the M. l. spp. viminea include, but are not limited
to:
(1) Actions that would significantly alter the natural hydrologic
pattern of intermittent flows and peak seasonal flooding necessary to
support Monardella linoides ssp. viminea. These activities could
include Federal authorization for urban and agricultural development in
the watershed that changes the amount, timing, frequency, and magnitude
of stream flows. Increased and/or more frequent water flows associated
with urban runoff could lead to dense stands of riparian vegetation
that may out-compete M. l. ssp. viminea. Changes in the magnitude of
seasonal flooding may increase scouring and erosion of terraces, banks,
and benches and thereby reduce the quality and availability of suitable
soils and habitat. Conversely, reduced water flow could result in more
xeric conditions that would limit plant growth and reproduction and
thereby allow more drought-tolerant plants to compete with M. l. ssp.
viminea.
(2) Actions associated with sand and gravel mining, stream
channelization, flood channel management, highway construction, and
dredging that would remove alluvium from stream channels or change the
physical structure of the stream channel by altering floodplains,
benches, sand bars, and stream channels. Federal authorization for
projects that physically alter the stream channel may remove suitable
alluvium from stream channels and result in the loss and degradation of
habitat for Monardella linoides ssp. viminea.
We consider the single unit designated as critical habitat, as well
as those that have been excluded or not included, to contain features
essential to the conservation of the Monardella linoides spp. viminea.
All units are within the geographic range of the species and all were
occupied by the species at the time we proposed critical habitat (based
on observations made within the last 6 years). Federal agencies already
consult with us on activities in areas currently occupied by M. l. spp.
viminea, or if the subspecies may be affected by the action, to ensure
that their actions do not jeopardize the continued existence of M. l.
spp. viminea.
Relationship of Critical Habitat to Military Lands--Application of
Section 4(a)(3)
The Sikes Act Improvement Act of 1997 (Sikes Act) (16 U.S.C. 670a)
required each military installation that includes land and water
suitable for the conservation and management of natural resources to
complete, by November 17, 2001, an Integrated Natural Resource
Management Plan (INRMP). An INRMP integrates implementation of the
military mission of the installation with stewardship of the natural
resources found on the base. Each INRMP includes an assessment of the
ecological needs on the installation, including the need to provide for
the conservation of listed species; a statement of goals and
priorities; a detailed description of management actions to be
implemented to provide for these ecological needs; and a monitoring and
adaptive management plan. Among other things, each INRMP must, to the
extent appropriate and applicable, provide for fish and wildlife
management, fish and wildlife habitat enhancement or modification,
wetland protection, enhancement, and restoration where necessary to
support fish and wildlife, and enforcement of applicable natural
resource laws.
The National Defense Authorization Act for Fiscal Year 2004 (Pub.
L. 108-136) amended the Act to limit areas eligible for designation as
critical habitat. Specifically, section 4(a)(3)(B)(i) of the Act (16
U.S.C. 1533(a)(3)(B)(i)) now provides: ``The Secretary shall not
[[Page 65672]]
designate as critical habitat any lands or other geographical areas
owned or controlled by the Department of Defense, or designated for its
use, that are subject to an integrated natural resources management
plan prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if
the Secretary determines in writing that such plan provides a benefit
to the species for which critical habitat is proposed for
designation.''
We consult with the military on the development and implementation
of INRMPs for installations with listed species. The INRMP developed by
MCAS Miramar, the only military installation located within the range
of the critical habitat designation for Monardella linoides spp.
viminea, was analyzed for non-inclusion under the authority of 4(a)(3)
of the Act.
Based on the above considerations, and in accordance with section
4(a)(3)(B)(i) of the Act, we have determined that conservation efforts
identified in MCAS Miramar's INRMP will provide benefits to Monardella
linoides spp. viminea occurring in habitats within or adjacent to MCAS
Miramar. Approximately 1,863 ac (754 ha) of essential habitat was
exempted from this critical habitat designation under section 4(a)(3)
of the Act.
Under MCAS Miramar's INRMP, the species is managed under a level II
conservation effort that includes avoiding or minimizing the effect of
planning action on endangered species and wetlands. In addition to the
station-wide population census, MCAS Miramar has a long-term monitoring
plan in place and has a habitat enhancement project to benefit
Monardella linoides spp. viminea to be implemented in 2006.
Exclusions Under Section 4(b)(2)
Section 4(b)(2) of the Act states that critical habitat shall be
designated, and revised, on the basis of the best available scientific
data after taking into consideration the economic impact, national
security impact, and any other relevant impact, of specifying any
particular area as critical habitat. The Secretary may exclude an area
from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the Secretary is afforded broad discretion and the
Congressional record is clear that in making a determination under the
section the Secretary has discretion as to which factors and how much
weight will be given to any factor.
Under section 4(b)(2), in considering whether to exclude a
particular area from the designation, we must identify the benefits of
including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If an
exclusion is contemplated, then we must determine whether excluding the
area would result in the extinction of the species. In the following
sections, we address a number of general issues that are relevant to
the exclusions we considered.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about 12 percent of listed species
were found almost exclusively on Federal lands (i.e., 90 to 100 percent
of their known occurrences restricted to Federal lands), and that 50
percent of federally listed species are not known to occur on Federal
lands at all.
Given the distribution of listed species with respect to land
ownership, conservation of listed species in many parts of the United
States is dependent upon working partnerships with a wide variety of
entities and the voluntary cooperation of many non-federal landowners
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building
partnerships and promoting voluntary cooperation of landowners is
essential to understanding the status of species on non-federal lands
and is necessary to implement recovery actions such as reintroducing
listed species, habitat restoration, and habitat protection.
Many non-federal landowners derive satisfaction in contributing to
endangered species recovery. The Service promotes these private-sector
efforts through the Four Cs philosophy--conservation through
communication, consultation, and cooperation. This philosophy is
evident in Service programs such as HCPs, Safe Harbors, CCAs, CCAAs,
and conservation challenge cost-share. Many private landowners,
however, are wary of the possible consequences of encouraging
endangered species to their property, and there is mounting evidence
that some regulatory actions by the Federal government, while well-
intentioned and required by law, can under certain circumstances have
unintended negative consequences for the conservation of species on
private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 2002;
James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a
decline in their property value due to real or perceived restrictions
on land-use options where threatened or endangered species are found.
Consequently, harboring endangered species is viewed by many landowners
as a liability, resulting in anti-conservation incentives because
maintaining habitats that harbor endangered species represents a risk
to future economic opportunities (Main et al. 1999; Brook et al. 2003).
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7 of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands.
According to some researchers, the designation of critical habitat on
private lands significantly reduces the likelihood that landowners will
support and carry out conservation actions (Main et al. 1999; Bean
2002; Brook et al. 2003). The magnitude of this negative outcome is
greatly amplified in situations where active management measures (e.g.,
reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002).
The Service believes that the judicious use of excluding specific
areas of non-federally owned lands from critical habitat designations
can contribute to species' recovery and provide a superior level of
conservation than critical habitat alone. The Department's Four Cs
philosophy--conservation through communication, consultation, and
cooperation--is the foundation for developing the tools of
conservation. These tools include conservation grants, funding for
Partners for Fish and Wildlife Program, the Coastal Program, and
cooperative-conservation challenge cost-share grants. Our Private
Stewardship Grant Program and Landowner Incentive Program provide
assistance to private land owners in their voluntary efforts to protect
threatened, imperiled, and endangered species, including the
development and implementation of HCPs.
[[Page 65673]]
Conservation agreements with non-Federal landowners (e.g., Habitat
Conservation Plans (HCPs), contractual conservation agreements,
easements, and stakeholder-negotiated State regulations) enhance
species' conservation by extending species' protections beyond those
available through section 7 consultations. In the past decade, we have
encouraged non-Federal landowners to enter into conservation
agreements, based on a view that we can achieve greater species
conservation on non-Federal land through such partnerships than we can
through coercive methods (61 FR 63854; December 2, 1996).
In our critical habitat designations, we use the provisions
outlined in section 4(b)(2) of the Act to evaluate those specific areas
that we propose to designate as critical habitat. We have determined
that non-federal lands within the plan area of the City of San Diego
subarea plan and the County of San Diego subarea plan, both of which
are approved HCPs tiered to the San Diego Multiple Species Conservation
Program, should be excluded under section 4(b)(2) of the Act. A
detailed analysis of our use of these provisions is provided in the
following paragraphs.
General Principles of Section 7 Consultations Used in the 4(b)(2)
Balancing Process
The most direct, and potentially largest, regulatory benefit of
critical habitat is that federally authorized, funded, or carried out
activities require consultation under section 7 of the Act to ensure
that they are not likely to destroy or adversely modify critical
habitat. There are two limitations to this regulatory effect. First, it
only applies where there is a Federal nexus--if there is no Federal
nexus, designation itself does not restrict actions that destroy or
adversely modify critical habitat. Second, it only limits destruction
or adverse modification. By its nature, the prohibition on adverse
modification is designed to ensure those areas that contain the
physical and biological features essential to the conservation of the
species or unoccupied areas that are essential to the conservation of
the species are not eroded. Critical habitat designation alone,
however, does not require specific steps toward recovery.
Once consultation under section 7 of the Act is triggered, the
process may conclude informally when the Service concurs in writing
that the proposed Federal action is not likely to adversely affect the
listed species or its critical habitat. However, if the Service
determines through informal consultation that adverse impacts are
likely to occur, then formal consultation would be initiated. Formal
consultation concludes with a biological opinion issued by the Service
on whether the proposed Federal action is likely to jeopardize the
continued existence of a listed species or result in destruction or
adverse modification of critical habitat, with separate analyses being
made under both the jeopardy and the adverse modification standards.
For critical habitat, a biological opinion that concludes in a
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not contain any
reasonable and prudent measures or terms and conditions. Mandatory
measures and terms and conditions to implement such measures are only
specified when the proposed action would result in incidental take of a
listed animal species. Reasonable and prudent alternatives to the
proposed Federal action would only be suggested when the biological
opinion results in a jeopardy or adverse modification conclusion.
We also note that for 30 years prior to the Ninth Circuit Court's
decision in Gifford Pinchot, the Service conflated the jeopardy
standard with the standard for destruction or adverse modification of
critical habitat when evaluating Federal actions that affect currently-
occupied critical habitat. The Court ruled that the two standards are
distinct and that adverse modification evaluations require
consideration of impacts on the recovery of species. Thus, under the
Gifford Pinchot decision, critical habitat designations may provide
greater benefits to the recovery of a species. However, we believe the
conservation achieved through implementing habitat conservation plans
(HCPs) or other habitat management plans is typically greater than
would be achieved through multiple site-by-site, project-by-project,
section 7 consultations involving consideration of critical habitat.
Management plans commit resources to implement long-term management and
protection to particular habitat for at least one and possibly other
listed or sensitive species. Section 7 consultations only commit
Federal agencies to prevent adverse modification to critical habitat
caused by the particular project, and not to provide conservation or
long-term benefits to areas affected by the proposed project. Thus, any
HCP or management plan which considers enhancement or recovery as the
management standard will often provide as much or more benefit than a
consultation for critical habitat designation conducted under the
standards required by the Ninth Circuit in the Gifford Pinchot
decision.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat in that it provides the framework for the
consultation process.
Educational Benefits of Critical Habitat
A benefit of including lands in critical habitat is that the
designation of critical habitat serves to educate landowners, State and
local governments, and the public regarding the potential conservation
value of an area. This helps focus and promote conservation efforts by
other parties by clearly delineating areas of high conservation value
for Monardella linoides spp. viminea. In general, the educational
benefit of a critical habitat designation always exists, although in
some cases it may be redundant with other educational effects. For
example, HCPs have significant public input and may largely duplicate
the educational benefit of a critical habitat designation. This benefit
is closely related to a second, more indirect benefit: that designation
of critical habitat would inform State agencies and local governments
about areas that could be conserved under State laws or local
ordinances.
However, we believe that there would be little additional
informational benefit gained from the designation of critical habitat
for the exclusions we are making in this rule because these areas are
identified in this notice as having habitat containing the features
essential to the conservation of the species. Consequently, we believe
that the informational benefits are already provided even though these
areas are not designated as critical habitat. Additionally, the purpose
normally served by the designation of informing State agencies and
local governments about areas which would benefit from protection and
enhancement of habitat for Monardella linoides spp. viminea is already
well established among State and local governments and Federal agencies
in those areas that we are excluding from critical habitat in this rule
on the basis of other existing habitat management protections.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat.
[[Page 65674]]
Benefits of Excluding Lands With HCPs or Other Approved Management
Plans From Critical Habitat
The benefits of excluding lands with HCPs from critical habitat
designation include relieving landowners, communities, and counties of
any additional regulatory burden that might be imposed by a critical
habitat designation. Most HCPs and other conservation plans take many
years to develop and, upon completion, are consistent with the recovery
objectives for listed species that are covered within the plan area. In
fact, designating critical habitat in areas covered by a pending HCP or
conservation plan could result in the loss of some species' benefits if
participants abandon the planning process, in part because of the
strength of the perceived additional regulatory compliance that such
designation would entail. This is particularly true in the case of
plants, such as Monardella linoides spp. viminea. Although plants are
not subject to the prohibition on take in section 9 of the Act, the
Service encourages applicants to include them as covered species in
HCPs by incorporating measures to protect them and their habitat under
the plans. If as a result of the Federal nexus created by such
inclusion, plants are subjected to increased numbers of consultations
under section 7 due to designation of critical habitat, applicants will
likely be discouraged from incorporating conservation measures for
plants in their HCPs. The time and cost of regulatory compliance for a
critical habitat designation do not have to be quantified for them to
be perceived as additional Federal regulatory burden sufficient to
discourage continued participation in plans targeting listed species'
conservation.
Many conservation or management plans provide conservation benefits
to unlisted sensitive species. Imposing an additional regulatory review
as a result of the designation of critical habitat may undermine
conservation efforts and partnerships in many areas. Designation of
critical habitat within the boundaries of management plans that provide
conservation measures for a species could be viewed as a disincentive
to those entities currently developing these plans or contemplating
them in the future, because one of the incentives for undertaking
conservation is greater ease of permitting where listed species are
affected. Addition of a new regulatory requirement would remove a
significant incentive for undertaking the time and expense of
management planning.
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability to
seek new partnerships with future plan participants including States,
counties, local jurisdictions, conservation organizations, and private
landowners, which together can implement conservation actions that we
would be unable to accomplish otherwise. If lands within approved
management plan areas are designated as critical habitat, it would
likely have a negative effect on our ability to establish new
partnerships to develop these plans, particularly plans that address
landscape-level conservation of species and habitats. By preemptively
excluding these lands, we preserve our current partnerships and
encourage additional conservation actions in the future.
Furthermore, the Service's decision to approve an HCP or NCCP/HCP
application is subject to the consultation requirement. Such a
consultation would review the effects of all activities covered by the
HCP which might adversely impact the species under a jeopardy standard,
even without the critical habitat designation. In addition, Federal
actions not covered by the HCP in areas occupied by listed species
would still require consultation under section 7 of the Act and would
be reviewed for possibly significant habitat modification.
The information provided in this section applies to all the
discussions below that discuss the benefits of inclusion and exclusion
of critical habitat.
Relationship of Critical Habitat to Approved Habitat Conservation Plans
(HCPs)--Exclusion Under Section 4(b)(2) of the Act
San Diego Multiple Species Conservation Program (MSCP)
Below, we first provide some general background information on the
San Diego MSCP, followed by an analysis under section 4(b)(2) of the
Act of the benefits of including San Diego MSCP lands within the
critical habitat designation, an analysis of the benefits of excluding
these lands, and an analysis of why we believe the benefits of
exclusion are greater than those of inclusion. Finally, we provide a
determination that exclusion of these lands would not result in
extinction of M. l. ssp. viminea.
We are excluding from the final critical habitat designation
approximately 494 ac (200 ha) of non-Federal lands within the City of
San Diego subarea plan and the County of San Diego subarea plan of the
San Diego MSCP under section 4(b)(2) of the Act. M. l. ssp. viminea is
a covered species under these two approved and legally operative
subarea plans. These HCPs provide special management and protection for
the physical and biological features essential for the conservation of
M. l. ssp. viminea that exceed the level of regulatory control that
would be afforded this subspecies by the designation of critical
habitat. We believe that the benefits of excluding essential habitat
covered by these HCPs from the critical habitat designation would
outweigh the benefits of including them as critical habitat, and that
the exclusion under consideration would not result in the extinction of
M. l. ssp. viminea.
In southwestern San Diego County, the MSCP effort encompasses more
than 582,000 ac (236,000 ha) and anticipates the participation of 12
jurisdictions. Under the broad umbrella of the MSCP, each of the 12
participating jurisdictions prepares a subarea plan that implements the
goals of the MSCP within that particular jurisdiction. Three of the 12
jurisdictions cover lands that support M. l. ssp. viminea. Two of the
jurisdictions, the County of San Diego and the City of San Diego, have
completed subarea plans. The third jurisdiction, the City of Santee, is
currently preparing its subarea plan. We conduct a consultation on each
subarea plan and associated permit under section 7 of the Act to ensure
they are not likely to result in jeopardy, or adversely modify or
destroy the designated critical habitat, of any covered species. We
also review the plans under Section 10 of the Act to ensure they meet
the criteria for issuance of an incidental take permit and are
consistent with the terms and goals of the MSCP. We completed these
analyses for the City of San Diego and County of San Diego subarea
plans prior to issuing incidental take permits to those jurisdictions.
The regional MSCP is also a regional subarea plan under the State
of California's Natural Communities Conservation Plan (NCCP) program
and was developed in cooperation with California Department of Fish and
Game (CDFG). Over the 50-year term of the City and County permits, the
MSCP provides for the establishment of approximately 171,000 ac (69,573
ha) of preserve lands within the Multi-Habitat Planning Area (MHPA)
(City of San Diego) and Pre-Approved Mitigation Areas (PAMA) (County of
San Diego) to benefit the 85 federally listed and sensitive species,
including M. l. ssp. viminea, covered under the plan. Private lands
within the MHPA and
[[Page 65675]]
PAMA lands are subject to special restrictions on development and, as
they are committed to the preserve, must be legally protected and
permanently managed to conserve the covered species. Public lands owned
by the City and County and by the State of California and Federal
government that are identified for conservation under the MSCP must
also be protected and permanently managed to protect the covered
species. The MSCP requires the City and County to develop broad
framework and site-specific management plans, subject to the review and
approval of the Service and CDFG, to guide the management of all
preserve lands under City and County control. The plans incorporate
requirements to monitor and adaptively manage M. l. ssp. viminea
habitats over time. Under the MSCP, the State and Federal governments
have also committed to provide similar management for their preserve
lands.
As discussed above, each take authorization holder prepares a
framework management plan as a condition of its implementing agreement.
The framework management plan provides general direction for all
preserve management issues within the subarea plan's boundaries. Area-
specific management directives are developed for managing lands that
are conserved as part of the reserves. The framework and area-specific
management plans are comprehensive and address a broad range of
management needs at the preserve and species levels. These plans
include the following: (1) Fire management; (2) public access control;
(3) fencing and gates; (4) ranger patrol; (5) trail maintenance; (6)
visitor/interpretive and volunteer services; (7) hydrological
management; (8) signage and lighting; (9) trash and litter removal;
(10) access road maintenance; (11) enforcement of property and
homeowner requirements; (12) removal of invasive species; (13)
nonnative predator control; (14) species monitoring; (15) habitat
restoration; (16) management for diverse age classes; (17) use of
herbicides and rodenticides; (18) biological surveys; (19) research;
and (20) species management conditions (Final MSCP Plan 1998). These
management measures benefit Monardella linoides. ssp. viminea and
reduce the threats to this species. The MSCP also provides for a
biological monitoring program, and M. l. ssp. viminea is identified as
a first priority plant species for field monitoring (Final MSCP Plan
1998). Species prioritized for field monitoring (such as M. l. ssp.
viminea) face the greatest threats to their viability, and detailed
field monitoring assesses both immediate threats and long-term
population trends. The City of San Diego monitors M. l. ssp. viminea on
an annual basis (City of San Diego 2000, pp. 1-11; 2001, pp. 1-6; 2002,
pp. 1-7; 2003, pp. 1-6; and 2004, pp. 1-9). Moreover, the rare plant
monitoring plan under the MSCP is being updated with the assistance of
the U.S. Geological Survey Biological Research Division and a three-
member independent scientific advisory group.
In addition to the restrictions on development and conservation
obligations that apply within the MHPA and PAMA, the MSCP incorporates
processes to protect sensitive species of limited distribution,
including Monardella linoides ssp. viminea, within the plan area. Under
the City of San Diego's subarea plan, impacts to narrow endemic species
inside the MHPA will be avoided and outside the MHPA will be protected
as appropriate by (1) avoidance, (2) management, (3) enhancement, or
(4) transplantation to areas identified for preservation. Under the
County of San Diego's subarea plan, narrow endemic plants, including M.
l. ssp. viminea, would be conserved under their Biological Mitigation
Ordinance using a process that (1) requires avoidance to the maximum
extent feasible, (2) allows for a maximum 20 percent encroachment into
a population if total avoidance is not feasible, and (3) requires
mitigation at the 1:1 to 3:1 (in kind) for impacts if avoidance and
minimization of impacts would result in no reasonable use of the
property. Thus, these processes to protect narrow endemic plants,
including M. l. ssp. viminea, whether located on lands targeted for
preserve status within the MHPA and PAMA or located outside of those
areas, ensure these limited distribution species are protected wherever
they occur. Considered as a whole, the protection and management of M.
l. ssp. viminea provided under the City and County subarea plans will
ensure the permanent conservation of this species and its habitat
within the areas covered by the plans.
We are therefore excluding from critical habitat a portion of
Sycamore Canyon and all of West Sycamore and Spring Canyons (Unit 3 in
Table 1), San Clemente Canyon (Unit 4 in Table 1), Elanus Canyon (Unit
5 in Table 1), Lopez Canyon (Unit 6 in Table 1), Marron Valley (Unit 7
in Table 1), and Otay Lakes (Unit 8 in Table 1) under section 4(b)(2)
of the Act because they are covered by the City and the County subarea
plans. All of the populations of Monardella linoides ssp. viminea
anticipated to be conserved by the MSCP under the City of San Diego and
County of San Diego subarea plans occur in these geographical areas.
These populations will be conserved and will be managed and monitored
pursuant to or consistent with the MSCP. The framework and area-
specific management plans (described above) provide management and
monitoring of M. l. ssp. viminea.
The portions of Sycamore Canyon (Units 3A, 3B, and 3C) that we are
excluding from critical habitat are under either city and county
ownership and are within the reserve design of the MHPA and PAMA under
the city's and county's subarea plans. The majority of the county-owned
PAMA lands in Sycamore Canyon has already been conserved and is being
managed for the conservation of covered species, including Monardella
linoides ssp. viminea, consistent with the framework and area-specific
management plans described above. The remaining county-owned lands and
city-owned lands in Sycamore Canyon have not yet been formally
committed to the preserve but will continue to be protected through the
city's and county's subarea plans' processes to protect narrow endemic
species (described above) until these lands become part of the
preserve.
Lands in West Sycamore Canyon (Unit 3D) that we are excluding from
critical habitat are under city ownership and are within the reserve
design of the MHPA. These lands have been already conserved and are
being managed for the conservation of covered species consistent with
the framework and area-specific management plans described above,
including Monardella linoides ssp. viminea under the city's subarea
plan.
Lands in Spring Canyon (Unit 3E) that we are excluding from
critical habitat are under private ownership but are within the reserve
design of the MHPA and are targeted for preservation under the city's
subarea plan. The private lands in Spring Canyon have not yet been
formally committed to the preserve, but are within an area that calls
for 100 percent conservation of Monardella linoides ssp. viminea. The
City of San Diego has recently acquired private lands in Spring Canyon
through the MSCP that will benefit M. l. ssp. viminea. Populations of
M. l. ssp. viminea on the remaining private lands will continue to be
protected through the city's subarea plan process described above to
protect narrow endemic species until these private lands become part of
the preserve.
Lands in San Clemente Canyon (Unit 4) that we are excluding from
critical habitat are under city ownership. The
[[Page 65676]]
majority of these lands is within the reserve design of the MHPA, has
been committed to the preserve, and is being managed for the
conservation of covered species consistent with the framework and area-
specific management plans described above, including Monardella
linoides ssp. viminea, under the city's MSCP subarea plan. A small
portion of these lands is on city-owned lands that are not within the
MHPA. Populations of M. l. ssp. viminea on the remaining city-owned
lands will continue to be protected through the city's subarea plan
process described above to protect narrow endemic species.
Lands in Elanus Canyon (Unit 5) that we are excluding from critical
habitat are under city ownership and are within the reserve design of
the MHPA. They are committed to the preserve and are being managed for
the conservation of covered species, including Monardella linoides ssp.
viminea, under the city's subarea plan.
Lands in Lopez Canyon (Unit 6) that we are excluding from critical
habitat are under city ownership and are within the reserve design of
the MHPA. The lands are committed to the preserve and are being managed
for the conservation of covered species, including Monardella linoides
ssp. viminea, under the city's subarea plan.
Lands in Marron Valley (Unit 7) that we are excluding from critical
habitat are under city and State ownership and are within the reserve
design of the MHPA. The city-owned lands have been committed to the
preserve and are being managed for the conservation of covered species,
including Monardella linoides ssp. viminea, under the city's subarea
plan. State Lands are being managed pursuant to commitments made by the
State of California to implement the MSCP on State-owned lands.
Lands in Otay Lakes (Unit 8) that we are excluding from critical
habitat are under City of San Diego, City of Chula Vista, State of
California, and private ownership. These lands are also within the MHPA
and PAMA, and are either already committed to the preserve or are
targeted for 100 percent preservation under the city's and county's
subarea plans. The lands owned by the City of Chula Vista were formerly
owned by Otay Ranch and were conveyed to the city as mitigation for the
Otay Ranch development. These lands are conserved within the County of
San Diego's subarea plan. The preserve lands are being managed for the
conservation of the covered species, including Monardella linoides ssp.
viminea, under the city's and county's subarea plans and pursuant to
commitments made by the State of California to implement the MSCP on
State-owned lands. Those lands not yet formally committed to the
preserve will continue to be protected through the county's subarea
plan process described above to protect narrow endemic species until
these lands become part of the preserve.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We expect the MSCP to provide substantial protection and management
of the PCEs within essential habitat for Monardella linoides ssp.
viminea on MSCP conservation lands. We expect the MSCP to provide
active management for M. l. ssp. viminea on non-Federal lands in
contrast to designation of critical habitat, which would only preclude
their destruction or adverse modification. Moreover, the educational
benefits that would result from critical habitat designation, including
informing the public of areas that are necessary for the long-term
conservation of the subspecies, are already in place as a result both
of material provided on our website and through public notice-and-
comment procedures required to establish the MSCP and specific subarea
plans.
In contrast to the lack of an appreciable benefit of including
these lands as critical habitat, the exclusion of these lands from
critical habitat will help preserve the partnerships that we have
developed with the local jurisdictions and project proponents in the
development of the MSCP. As discussed above, many landowners perceive
critical habitat as an unfair and unnecessary regulatory burden given
the expense and time involved in developing an implementing complex
regional HCPs, such as the MSCP. For these reasons, we believe that
designating critical habitat has little benefit in areas covered by the
MSCP and such minor benefit is outweighed by the benefits of
maintaining partnerships with local jurisdictions and private
landowners with lands covered by the MSCP.
We have reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of lands as critical habitat for Monardella
linoides ssp. viminea. Based on this evaluation, we find that the
benefits of excluding lands in the planning area for the MSCP outweigh
the benefits of including those lands as critical habitat for M. l.
ssp. viminea.
Exclusion Will Not Result in Extinction of the Species
Exclusion of these 494 ac (200 ha) of non-Federal lands will not
result in extinction of Monardella linoides ssp. viminea because these
lands will be conserved and managed for the benefit of this species
pursuant to the approved MSCP subarea plans. The jeopardy standard of
section 7 and routine implementation of habitat protection through the
section 7 process also provide assurances that the species will not go
extinct.
Relationship of Critical Habitat Within the Bureau of Land Management--
Exclusion Under Section 4(b)(2) of the Act
Federal lands managed by the Bureau of Land Management (BLM) are an
integral part of the conservation strategy of San Diego MSCP. However,
BLM, like any other Federal agency, is not a permittee under the
section 10(a)(1)(B) permit for the San Diego MSCP. The BLM, Service,
CDFG, City of San Diego, and County of San Diego, in cooperation with
the San Diego Association of Governments (SANDAG), signed a Memorandum
of Understanding (MOU) in June 1994, committing to cooperate in habitat
conservation planning and management related to the San Diego MSCP.
Under the MOU, BLM agreed to take the following actions to assist in
implementing the MSCP's conservation goals and objectives: (1) To make
maintenance and management of the area's unique biological diversity a
principal goal in the design and implementation of its conservation
programs; (2) to coordinate with the other signatory parties regarding
assessment of the wildlife values of those lands managed by BLM within
San Diego County; (3) to coordinate with signatory parties to resolve
any BLM, State, regional or local land management prescriptions that
are inconsistent with existing or proposed conservation objectives; (4)
to work with the County, the City, SANDAG, CDFG, and Service in
identifying the lands it manages for inclusion within the region's
habitat conservation systems; and (5) to work with signatory parties to
acquire key habitat areas using a variety of techniques. Thus, while
not a permittee to the section 10(a)(1)(B) permit for the San Diego
MSCP, BLM lands, in particular those on Otay Mountain that support a
variety of listed and sensitive covered MSCP species, are a key
component of the overall reserve design for the MSCP.
At the time of the MOU (and at the time of listing), Monardella
linoides ssp. viminea was not known to occur on BLM lands at Otay
Mountain. Since the development and approval of the San Diego MSCP, new
information has identified a previously unknown population of M. l.
ssp. viminea on BLM lands at West Otay Mountain. Surveys
[[Page 65677]]
in 2000 counted 202 clumps of M. l. ssp. viminea, making this
occurrence the fourth largest population at that time. The populations
of M. l. ssp. viminea on BLM lands at Otay Mountain are within the area
covered by the MOU. Congress formally designated BLM lands on Otay
Mountain as the Otay Mountain Wilderness in 1999 (Otay Mountain
Wilderness Act, Pub. L. 106-145, December 9, 1999). The occurrences of
M. l. ssp. viminea on Otay Mountain are within the designated
boundaries of the Otay Mountain Wilderness. The inclusion of these
occupied habitats within a designated wilderness provides additional
significant protection for this area and complement BLM's objective to
manage these public lands to provide protection and enhancement for
biological values.
The Wilderness Act of 1964 (16 U.S.C. 1131 et seq.) restricts
vehicles, new developments, chainsaws, mountain bikes, leasing, and
mining from the wilderness area. Grazing is permitted within the
wilderness area; however, no grazing allotments currently exist. Thus,
the population and habitat of Monardella linoides ssp. viminea on BLM
land receives conservation protection consistent with the Otay Mountain
Wilderness, MOU, and San Diego MSCP. Our analysis below examines the
benefits of inclusion and benefits of exclusion of approximately 67 ac
(27 ha) of Federal lands managed by the BLM from critical habitat Unit
9 under section 4(b)(2) of the Act. These lands are within the
designated Otay Mountain Wilderness that is targeted for conservation
under the MOU for the San Diego MSCP.
Benefits of Inclusion
We believe there would be minimal benefit from designating critical
habitat for Monardella linoides ssp. viminea on BLM lands because the
habitat essential for this species on Otay Mountain is already
conserved within the Otay Mountain Wilderness and is targeted for
conservation under the MOU for the San Diego MSCP as explained above.
The primary benefit of including an area within a critical habitat
designation is the protection provided by section 7(a)(2) of the Act
that directs Federal agencies to ensure that their actions do not
result in the destruction or adverse modification of critical habitat.
The designation of critical habitat may provide a different level of
protection under section 7(a)(2) for M. l. ssp. viminea that is
separate from the obligation of a Federal agency to ensure that their
actions are not likely to jeopardize the continued existence of a
listed species. Under the Gifford Pinchot decision, critical habitat
designations may provide greater benefits to the recovery of a species
than was previously believed, but it is not possible to quantify this
benefit at present. However, the protection provided is still a
limitation on the adverse effects that occur as opposed to a
requirement to provide a conservation benefit.
The inclusion of these 67 ac (27 ha) of Federal land in critical
habitat designation is unlikely to provide any additional Federal
regulatory benefits for the species consistent with the conservation
standard based on the Ninth Circuit Court's decision in Gifford
Pinchot. Inclusion of this area in critical habitat would require
Federal agencies to ensure that their actions on these Federal lands
are not likely result in the destruction or adverse modification of
critical habitat. The potential benefits resulting from this additional
analysis to determine destruction or adverse modification of critical
habitat are likely to be minimal to nonexistent because the extensive
restrictions on permitted uses and the prohibition on development of
designated wilderness lands virtually eliminates the possibility of
future Federal actions likely to negatively impact essential habitat
for Monardella linoides ssp. viminea within this area.
Another potential benefit of critical habitat would be to signal
the importance of these lands to Federal agencies, scientific
organizations, State and local governments, and the public to encourage
conservation efforts to benefit M. l. ssp. viminea and its habitat.
However, as discussed above, the importance of protecting the
biological resource values of these lands, including M. l. ssp.
viminea, has already been clearly and effectively communicated to
Federal, State, and local agencies and other interested organizations
and members of the public through designation of the lands as
wilderness, through the 1994 MOU, and through the MSCP approval and
implementation process.
In short, we expect BLM's MOU for the San Diego MSCP to result in
special management of the PCEs, and the MOU, in conjunction with the
wilderness designation, to result in substantial protection within
habitat with features essential for the conservation of Monardella
linoides ssp. viminea on Federal lands on Otay Mountain. We expect the
MOU to provide a greater level of management for M. l. ssp. viminea on
Federal lands than would designation of critical habitat.
Benefits of Exclusion
In contrast to section 7(a)(2) of the Act, the wilderness
designation and 1994 MOU committing the BLM to manage its lands for the
benefit of M. l. ssp. viminea and other covered species go well beyond
a simple requirement to avoid adverse modification of critical habitat.
BLM has demonstrated its proactive commitment to the conservation goals
and objectives of the MSCP by entering into the 1994 MOU and thereby
becoming a key partner in the MSCP. Excluding these 67 ac (27 ha) of
BLM lands from critical habitat designation recognizes BLM's commitment
under their MOU to manage their lands consistent with the MSCP, and
provides additional incentive to BLM to maintain and strengthen the
partnerships created by its official participation in the MSCP planning
process, especially considering the high level of cooperation by the
participants in the MSCP to conserve this taxon. BLM's commitment to
species' conservation under the MSCP is in line with the agency's
requirement to utilize its programs for the furtherance of the purposes
of the Act under section 7(a), and may exceed the conservation value
provided by a critical habitat designation alone since BLM, as a
partner in an existing conservation program, is able focus limited
Federal resources toward proactive conservation of sensitive species.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We believe that the benefits of exclusion of the lands containing
features essential to the conservation of Monardella linoides ssp.
viminea within the designated Otay Mountain Wilderness, although
minimal, outweigh the even more minimal benefits of inclusion of these
lands as critical habitat. We have therefore excluded essential habitat
for M. l. ssp. viminea on lands owned by the BLM on Otay Mountain from
this final critical habitat designation.
Exclusion Will Not Result in Extinction of the Species
Exclusion of these 67 ac (27 ha) of Federal lands will not result
in extinction of Monardella linoides ssp. viminea because these lands
will be permanently protected for the benefit of this species and its
essential habitat pursuant to the Otay Mountain Wilderness Act and will
be actively managed pursuant to the 1994 MOU for the San Diego MSCP.
The protection of the Otay Mountain population of M. l. ssp. viminea
and its habitat, along with
[[Page 65678]]
the conservation of the remaining populations and essential habitat of
this species under the San Diego MSCP and MCAS Miramar INRMP, will
ensure the species' continued existence.
The jeopardy standard of section 7 and routine implementation of
habitat conservation through the section 7 process also provide
assurances that the species will not go extinct.
Relationship of Critical Habitat to Economic Impacts--Exclusions Under
Section 4(b)(2) of the Act
Section 4(b)(2) allows the Secretary to exclude areas from critical
habitat for economic reasons if he determines that the benefits of such
exclusion exceed the benefits of designating the area as critical
habitat, unless the exclusion will result in the extinction of the
species concerned. This is a discretionary authority Congress has
provided to the Secretary with respect to critical habitat. Although
economic and other impacts may not be considered when listing a
species, Congress has expressly required their consideration when
designating critical habitat.
Following the publication of the proposed critical habitat
designation, we conducted an economic analysis to estimate the
potential economic effect of the designation. The draft analysis was
made available for public review on June 1, 2006 (71 FR 31137). We
accepted comments on the draft analysis until July 3, 2006.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Monardella linoides spp. viminea. This information is
intended to assist the Secretary in making decisions about whether the
benefits of excluding particular areas from the designation outweigh
the benefits of including those areas in the designation. This economic
analysis considers the economic efficiency effects that may result from
the designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
The analysis focuses on the direct and indirect costs of the rule.
However, economic impacts to land use activities can exist in the
absence of critical habitat. These impacts may result from, for
example, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The economic analysis estimates that because all of the essential
habitat proposed as critical habitat is conserved or will be conserved
under the MSCP and there are only minor effects to future development,
there are negligible, unquantifiable potential economic impacts
anticipated from the critical designation as proposed. Therefore, no
habitat was excluded due to economic impacts.
A copy of the final economic analysis with supporting documents are
included in our administrative record and may be obtained by contacting
U.S. Fish and Wildlife Service, Branch of Endangered Species (see
ADDRESSES section) or for downloading from the Internet at http://
www.fws.gov/ carlsbad/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866, this document is a
significant rule in that it may raise novel legal and policy issues.
However, because the economic analysis indicates that the potential
economic impacts associated with the proposed designation of critical
habitat are negligible, we conclude that this final rule will not have
an annual effect on the economy of $100 million or more or affect the
economy in a material way. Due to the timeline for publication in the
Federal Register, the Office of Management and Budget (OMB) did not
formally review the final rule.
Further, Executive Order 12866 directs Federal Agencies
promulgating regulations to evaluate regulatory alternatives (Office of
Management and Budget, Circular A-4, September 17, 2003). Pursuant to
Circular A-4, once it has been determined that the Federal regulatory
action is appropriate, the agency will need to consider alternative
regulatory approaches. Since the determination of critical habitat is a
statutory requirement under the Act, we must then evaluate alternative
regulatory approaches, where feasible, when promulgating a designation
of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts under section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat, and that such exclusion would not result in the extinction of
the species. As such, we believe that the evaluation of the inclusion
or exclusion of particular areas, or combined thereof, in a designation
constitutes our regulatory alternative analysis.
As explained above, we prepared an economic analysis of this
action. We used this analysis to meet the requirement of section
4(b)(2) of the Act to determine the economic consequences of
designating the specific areas as critical habitat. We also used it to
help determine whether to exclude any area from critical habitat, as
provided for under section 4(b)(2).
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA) (as amended by the Small
Business Regulatory Enforcement Fairness Act (SBREFA) of 1996),
whenever an agency is required to publish a notice of rulemaking for
any proposed or final rule, it must prepare and make available for
public comment a regulatory flexibility analysis that describes the
effect of the rule on small entities (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small entities. The SBREFA amended the RFA to
require Federal agencies to provide a statement of factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. The SBREFA also amended the RFA
to require a certification statement.
Small entities include small organizations, such as independent
nonprofit organizations; small governmental jurisdictions, including
school boards and city and town governments that serve fewer than
50,000 residents; as well as small businesses. Small businesses include
manufacturing and mining concerns with fewer than 500 employees,
wholesale trade entities with fewer than 100 employees, retail and
service businesses with less than $5 million in annual sales, general
and heavy construction businesses with less than $27.5 million in
annual business, special trade contractors doing less than
[[Page 65679]]
$11.5 million in annual business, and agricultural businesses with
annual sales less than $750,000. To determine if potential economic
impacts to these small entities are significant, we consider the types
of activities that might trigger regulatory impacts under this rule, as
well as the types of project modifications that may result. In general,
the term ``significant economic impact'' is meant to apply to a typical
small business firm's business operations.
To determine if the rule could significantly affect a substantial
number of small entities, we consider the number of small entities
affected within particular types of economic activities (e.g., housing
development, grazing, oil and gas production, timber harvesting). We
apply the ``substantial number'' test individually to each industry to
determine if certification is appropriate. However, the SBREFA does not
explicitly define ``substantial number'' or ``significant economic
impact.'' Consequently, to assess whether a ``substantial number'' of
small entities is affected by this designation, this analysis considers
the relative number of small entities likely to be impacted in an area.
In some circumstances, especially with critical habitat designations of
limited extent, we may aggregate across all industries and consider
whether the total number of small entities affected is substantial. In
estimating the number of small entities potentially affected, we also
consider whether their activities have any Federal involvement.
Designation of critical habitat only affects activities conducted,
funded, or permitted by Federal agencies. Some kinds of activities are
unlikely to have any Federal involvement and so will not be affected by
critical habitat designation. In areas where the species is present,
Federal agencies already are required to consult with us under section
7 of the Act on activities they fund, permit, or implement that may
affect Monardella linoides spp. viminea. Federal agencies also must
consult with us if their activities may affect critical habitat.
Designation of critical habitat, therefore, could result in an
additional economic impact on small entities due to the requirement to
reinitiate consultation for ongoing Federal activities.
The economic analysis determined there will be no effects on small
business because there are no reasonable foreseeable economic effects.
In general, two different mechanisms in section 7 consultations
could lead to additional regulatory requirements for the approximately
four small businesses, on average, that may be required to consult with
us each year regarding their project's impact on Monardella linoides
spp. viminea and its habitat. First, if we conclude, in a biological
opinion, that a proposed action is likely to jeopardize the continued
existence of a species or adversely modify its critical habitat, we can
offer ``reasonable and prudent alternatives''. Reasonable and prudent
alternatives are alternative actions that can be implemented in a
manner consistent with the scope of the Federal agency's legal
authority and jurisdiction, that are economically and technologically
feasible, and that would avoid jeopardizing the continued existence of
listed species or result in adverse modification of critical habitat. A
Federal agency and an applicant may elect to implement a reasonable and
prudent alternative associated with a biological opinion that has found
jeopardy or adverse modification of critical habitat. An agency or
applicant could alternatively choose to seek an exemption from the
requirements of the Act or proceed without implementing the reasonable
and prudent alternative. However, unless an exemption were obtained,
the Federal agency or applicant would be at risk of violating section
7(a)(2) of the Act if it chose to proceed without implementing the
reasonable and prudent alternatives.
Second, if we find that a proposed action is not likely to
jeopardize the continued existence of a listed plant species, we may
identify discretionary conservation recommendations designed to
minimize or avoid the adverse effects of a proposed action on listed
species or critical habitat, help implement recovery plans, or to
develop information that could contribute to the recovery of the
species. However, these recommendations are advisory only.
Based on our experience with consultations under section 7 of the
Act for all listed species, virtually all projects--including those
that, in their initial proposed form, would result in jeopardy or
adverse modification determinations in section 7 consultations--can be
implemented successfully with, at most, the adoption of reasonable and
prudent alternatives. These measures, by definition, must be
economically feasible and within the scope of authority of the Federal
agency involved in the consultation. We can only describe the general
kinds of actions that may be identified in future reasonable and
prudent alternatives. These are based on our understanding of the needs
of the species and the threats it faces, as described in the final
listing rule (63 FR 54938) and this critical habitat designation.
Within the final critical habitat units the types of Federal actions or
authorized activities that we have identified as potential concerns
are:
(1) Regulation of activities affecting waters of the United States
by the Corps under section 404 of the Clean Water Act;
(2) Regulation of water flows, damming, diversion, and
channelization implemented or licensed by Federal agencies;
(3) Regulation of timber harvest, grazing, mining, and recreation
by the U.S. Forest Service and BLM;
(4) Road construction and maintenance, right-of-way designation,
and regulation of agricultural activities;
(5) Hazard mitigation and post-disaster repairs funded by the
Federal Emergency Management Agency; and
(6) Activities funded by the Environmental Protection Agency, U.S.
Department of Energy, or any other Federal agency.
It is likely that a developer or other project proponent could
modify a project or take measures to protect Monardella linoides spp.
viminea. The kinds of actions that may be included if future reasonable
and prudent alternatives become necessary include conservation set-
asides, management of competing nonnative species, restoration of
degraded habitat, and regular monitoring. These are based on our
understanding of the needs of the species and the threats it faces, as
described in the final listing rule (63 FR 54938) and proposed critical
habitat designation (70 FR 67956). These measures are not likely to
result in a significant economic impact to project proponents.
In summary, we have considered whether this would result in a
significant economic effect on a substantial number of small entities.
We have determined, for the above reasons and based on currently
available information, that it is not likely to affect a substantial
number of small entities. Federal involvement, and thus section 7
consultations, would be limited to a subset of the area designated. The
most likely Federal involvement could include Corps permits, permits we
may issue under section 10(a)(1)(B) of the Act, and Federal Highway
Administration funding for road improvements. A regulatory flexibility
analysis is not required.
Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et
seq.)
Under SBREFA, this rule is not a major rule. Our detailed
assessment of the economic effects of this designation
[[Page 65680]]
is described in the economic analysis. Based on the effects identified
in the economic analysis, we believe that this rule will not have an
annual effect on the economy of $100 million or more, will not cause a
major increase in costs or prices for consumers, and will not have
significant adverse effects on competition, employment, investment,
productivity, innovation, or the ability of U.S.-based enterprises to
compete with foreign-based enterprises. Refer to the final economic
analysis for a discussion of the effects of this determination.
Executive Order 13211
On May 18, 2001, the President issued Executive Order 13211 on
regulations that significantly affect energy supply, distribution, and
use. Executive Order 13211 requires agencies to prepare Statements of
Energy Effects when undertaking certain actions. This final rule to
designate critical habitat for Monardella linoides spp. viminea is not
expected to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, Tribal
governments, or the private sector and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates''.
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or Tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance''. It also
excludes ``a duty arising from participation in a voluntary Federal
program'', unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and Tribal governments under entitlement authority'', if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. (At the time of
enactment, these entitlement programs were: Medicaid; AFDC work
programs; Child Nutrition; Food Stamps; Social Services Block Grants;
Vocational Rehabilitation State Grants; Foster Care, Adoption
Assistance, and Independent Living; Family Support Welfare Services;
and Child Support Enforcement.) ``Federal private sector mandate''
includes a regulation that ``would impose an enforceable duty upon the
private sector, except (i) a condition of Federal assistance; or (ii) a
duty arising from participation in a voluntary Federal program''.
The designation of critical habitat does not impose a legally
binding duty on non-Federal government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities who receive Federal
funding, assistance, permits or otherwise require approval or
authorization from a Federal agency for an action may be indirectly
impacted by the designation of critical habitat, the legally binding
duty to avoid destruction or adverse modification of critical habitat
rests squarely on the Federal agency. Furthermore, to the extent that
non-Federal entities are indirectly impacted because they receive
Federal assistance or participate in a voluntary Federal aid program,
the Unfunded Mandates Reform Act would not apply; nor would critical
habitat shift the costs of the large entitlement programs listed above
on to State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. As such, Small Government Agency Plan is
not required.
Federalism
In accordance with Executive Order 13132, the rule does not have
significant Federalism effects. A Federalism assessment is not
required. In keeping with DOI and Department of Commerce policy, we
requested information from, and coordinated development of, this final
critical habitat designation with appropriate State resource agencies
in California. The designation of critical habitat in areas currently
occupied by Monardella linoides spp. viminea may impose nominal
additional regulatory restrictions to those currently in place and,
therefore, may have little incremental impact on State and local
governments and their activities. The designation may have some benefit
to these governments in that the areas that contain the features
essential to the conservation of the species are more clearly defined,
and the primary constituent elements of the habitat necessary to the
conservation of the species are specifically identified. While making
this definition and identification does not alter where and what
federally sponsored activities may occur, it may assist these local
governments in long-range planning (rather than waiting for case-by-
case section 7 consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988, the Office of the
Solicitor has determined that the rule does not unduly burden the
judicial system and meets the requirements of sections 3(a) and 3(b)(2)
of the Order. We are designating critical habitat in accordance with
the provisions of the Endangered Species Act. This final rule uses
standard property descriptions and identifies the primary constituent
elements within the designated areas to assist the public in
understanding the habitat needs of Monardella linoides spp. viminea.
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act. This rule
will not impose recordkeeping or reporting requirements on State or
local governments, individuals, businesses, or organizations. An agency
may not conduct or sponsor, and a person is not required to respond to,
a collection of information unless it displays a currently valid OMB
control number.
National Environmental Policy Act
It is our position that, outside the Tenth Circuit, we do not need
to prepare environmental analyses as defined by the NEPA in connection
with designating critical habitat under the Endangered Species Act of
1973, as amended. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. Ore. 1995), cert.
denied 116 S. Ct. 698 (1996).
[[Page 65681]]
Government-to-Government Relationship With Tribes
In accordance with the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951), Executive Order 13175, and the Department
of Interior's manual at 512 DM 2, we readily acknowledge our
responsibility to communicate meaningfully with recognized Federal
Tribes on a government-to-government basis. We have determined that
there are no Tribal lands occupied at the time of listing that contain
the features essential for the conservation, and no Tribal lands that
are unoccupied areas that are essential for the conservation, of
Monardella linoides spp. viminea. Therefore, we have not designated
critical habitat for M. l. spp. viminea on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES section).
Author(s)
The primary authors of this package are staff of the Carlsbad Fish
and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
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2. In Sec. 17.12(h), revise the entry for ``Monardella linoides ssp.
viminea'' under ``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
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Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
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Flowering Plants
* * * * * * *
Monardella linoides ssp.viminea.. Willowy monardella.. U.S.A. (CA), Mexico Lamiaceae.......... E 649 17.96(a) NA
* * * * * * *
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3. In Sec. 17.96(a), add critical habitat for Monardella linoides ssp.
viminea in alphabetical order under Family Lamiaceae to read as
follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Lamiaceae: Monardella linoides ssp. viminea (willowy monardella)
(1) Critical habitat is depicted for San Diego, California, on the
map below.
(2) The primary constituent elements of critical habitat for
Monardella linoides ssp. viminea are the habitat components that
provide:
(i) Coarse, rocky, sandy alluvium on benches, stabilized sandbars,
channel banks, sandy washes, and/or among boulders and stones, and/or
in cracks of bedrock in rocky gorges along and within the ephemeral
drainages that provide space for growth, reproduction, and dispersal;
(ii) Ephemeral drainages where water flows only after peak seasonal
rains and major flooding events that periodically scour riparian
vegetation and redistribute alluvial material by eroding and developing
stream channels, benches, sandbars, and rocky gorges, thus maintaining
the necessary dynamic habitat processes for Monardella linoides spp.
viminea; and
(iii) Coastal sage, riparian scrub, or chaparral with an open and
semi-open canopy and little or no herbaceous understory situated along
ephemeral drainages and adjacent floodplains to ensure that Monardella
linoides spp. viminea receives adequate sunlight for nutrient uptake
for photosynthesis.
(3) Critical habitat does not include manmade structures existing
on the effective date of this rule and not containing one or more of
the primary constituent elements, such as buildings, aqueducts,
airports, and roads, and the land on which such structures are located.
(4) Data layers defining the map unit were created on a base of
USGS 7.5' quadrangles, and the critical habitat unit was then mapped
using a 100-meter grid to establish Universal Transverse Mercator (UTM)
North American Datum 27 (NAD 27) coordinates which, when connected,
provided the boundaries of the unit.
(5) Unit 1: Sycamore Canyon, consisting of private lands within the
City of Santee, San Diego County, California.
(i) From USGS 1:24,000 quadrangle San Vicente Reservoir, lands
bounded by the following UTM NAD27 coordinates (E, N): 501841,3640342;
501821, 3640300; 501819, 3640294; 501800, 3640274; 501743, 3640211;
501719, 3640200; 501700, 3640200; 501700, 3640192; 501645, 3640169;
501600, 3640115; 501587, 3640100; 501600, 3640100; 501600, 3640000;
501700, 3640000; 501800, 3640000; 501800, 3640009; 501844, 3640015;
501900, 3640028; 501940, 3640038; 501942, 3640017; 502000, 3640030;
502100, 3640052; 502200, 3640074; 502300, 3640096; 502301, 3640096;
502319, 3640100; 502400, 3640118; 502500, 3640140; 502600, 3640162;
502614, 3640165; 502700, 3640184; 502700, 3640117; 502667, 3640101;
502666, 3640100; 502600, 3640071; 502591, 3640067; 502530, 3640052;
502500, 3640044; 502431, 3640025; 502400, 3640012; 502369, 3640000;
502300, 3639972; 502277, 3639963; 502226, 3639968; 502202, 3639959;
502200, 3639958; 502100, 3639922; 502089, 3639918; 502000, 3639911;
501900, 3639917; 501801, 3639920; 501800, 3639920; 501701, 3639918;
501700, 3639918; 501600, 3639924; 501540, 3639927; 501552, 3639929;
501552, 3639930; 501552, 3639939; 501551, 3639974; 501551, 3640000;
501551, 3640030; 501551, 3640036; 501551, 3640041; 501551, 3640043;
501551, 3640069; 501551, 3640100;
[[Page 65682]]
501550, 3640135; 501550, 3640183; 501550, 3640200; 501550, 3640214;
501550, 3640236; 501549, 3640295; 501549, 3640300; 501600, 3640300;
501600, 3640343; 501689, 3640345; 501700, 3640344; 501800, 3640343;
thence returning to 501841, 3640342. Lands bounded by the following UTM
NAD27 coordinates (E, N): 501382, 3639892; 501318, 3639846; 501300,
3639838; 501243, 3639812; 501200, 3639801; 501199, 3639800; 501168,
3639786; 501112, 3639749; 501100, 3639748; 501120, 3639764; 501162,
3639800; 501177, 3639813; 501200, 3639832; 501233, 3639860; 501238,
3639861; 501279, 3639870; 501300, 3639874; 501314, 3639877; 501321,
3639879; 501331, 3639881; thence returning to 501382, 3639892. Lands
bounded by the following UTM NAD27 coordinates (E, N): 500864, 3639549;
500842, 3639500; 500833, 3639419; 500832, 3639400; 500827, 3639300;
500822, 3639200; 500821, 3639185; 500806, 3639117; 500800, 3639101;
500800, 3639100; 500798, 3639096; 500772, 3639000; 500745, 3638900;
500744, 3638900; 500728, 3638852; 500702, 3638808; 500700, 3638802;
500699, 3638800; 500668, 3638700; 500648, 3638637; 500630, 3638600;
500626, 3638594; 500600, 3638565; 500554, 3638515; 500530, 3638500;
500524, 3638500; 500500, 3638515; 500452, 3638545; 500454, 3638550;
500465, 3638576; 500466, 3638579; 500475, 3638600; 500477, 3638605;
500500, 3638659; 500515, 3638695; 500517, 3638700; 500541, 3638757;
500559, 3638800; 500583, 3638857; 500600, 3638898; 500601, 3638900;
500606, 3638912; 500637, 3639000; 500642, 3639013; 500664, 3639074;
500673, 3639100; 500700, 3639176; 500706, 3639193; 500707, 3639200;
500718, 3639299; 500718, 3639300; 500729, 3639400; 500732, 3639427;
500733, 3639439; 500763, 3639464; 500800, 3639495; 500806, 3639500;
500823, 3639515; thence returning to 500864, 3639549.
(ii) Note: Map of Unit 1 (Map 1) follows:
[[Page 65683]]
[GRAPHIC] [TIFF OMITTED] TR08NO06.014
* * * * *
Dated: October 25, 2006.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 06-9095 Filed 11-7-06; 8:45 am]
BILLING CODE 4310-55-P