[Federal Register Volume 71, Number 216 (Wednesday, November 8, 2006)]
[Rules and Regulations]
[Pages 65661-65683]
From the Federal Register Online via the Government Publishing 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

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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 
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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/ 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.


0
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) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Monardella linoides ssp.viminea..  Willowy monardella..  U.S.A. (CA), Mexico  Lamiaceae..........  E                       649     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
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