[Federal Register Volume 72, Number 187 (Thursday, September 27, 2007)]
[Rules and Regulations]
[Pages 54984-55010]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-4723]
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Part II
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 20
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and
Fremontodendron mexicanum (Mexican flannelbush); Final Rule
Federal Register / Vol. 72, No. 187 / Thursday, September 27, 2007 /
Rules and Regulations
[[Page 54984]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
RIN 1018-AU77
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and
Fremontodendron mexicanum (Mexican flannelbush)
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 Ceanothus ophiochilus (Vail Lake
ceanothus) and Fremontodendron mexicanum (Mexican flannelbush) under
the Endangered Species Act of 1973, as amended (Act). In total,
approximately 431 acres (ac) (175 hectares (ha)) of federally-owned
land fall within the boundaries of the critical habitat designation for
these two species. Approximately 203 ac (82 ha) of land in Riverside
County, California, are being designated as critical habitat for C.
ophiochilus, and approximately 228 ac (93 ha) of land in San Diego
County, California, are being designated as critical habitat for F.
mexicanum. Of the approximately 283 ac (115 ha) proposed for
designation for C. ophiochilus, approximately 80 ac (33 ha) of
privately-owned land covered by the Western Riverside County Multiple
Species Habitat Conservation Plan (MSHCP) have been excluded from
critical habitat for C. ophiochilus under section 4(b)(2) of the Act.
Of the approximately 361 ac (147 ha) proposed for designation for F.
mexicanum, approximately 133 ac (54 ha) of privately-owned land covered
by the San Diego Multiple Species Conservation Plan (MSCP) have been
excluded from critical habitat for F. mexicanum under section 4(b)(2)
of the Act.
DATES: This rule becomes effective on October 29, 2007.
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 U.S. Fish and Wildlife Service, Carlsbad Fish and
Wildlife Office, 6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone
760-431-9440). The final rule, economic analysis, and maps 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 (see ADDRESSES); telephone 760-431-9440;
facsimile 760-431-5901. If you use a telecommunications device for the
deaf (TDD), call the Federal Information Relay Service (FIRS) at 800-
877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat in this final rule. For more
information on Ceanothus ophiochilus and Fremontodendron mexicanum,
refer to the final listing rule published in the Federal Register on
October 13, 1998 (63 FR 54956), or the proposed critical habitat rule
published in the Federal Register on October 3, 2006 (71 FR 58340).
Species Descriptions and Life History
No new information pertaining to the descriptions or life histories
of these species was received following the 2006 proposed designation
of critical habitat for each species; therefore, please refer to the
proposed critical habitat designation published in the Federal Register
on October 3, 2006 (71 FR 58340) for a discussion of the species
description and life history for these two species.
Ecology and Habitat
No new information pertaining to the ecology or habitat of these
two species was received following the 2006 proposed designation of
critical habitat for each species. Therefore, please refer to the
proposed critical habitat designation published in the Federal Register
on October 3, 2006 (71 FR 58340), for a discussion of the ecology and
habitat for these two species.
Distribution
In 2007, an occurrence of Fremontodendron mexicanum was documented
at the historical ``Woodwardia Canyon'' occurrence on Otay Mountain,
which was last documented in 1936 (Snapp-Cook 2007, p. 1). Prior to the
rediscovery of this occurrence, the exact location of ``Woodwardia
Canyon'' was difficult to discern from existing records. There were no
maps of ``Woodwardia Canyon'' and the California Natural Diversity
Database (CNDDB) cited ``Woodwardia Canyon'' in two separate areas
(CNDDB 2005, p. 1 and p. 3). The rediscovered occurrence is located on
Otay Mountain 0.3 miles (mi) (0.5 kilometers (km)) to the southwest of
the known occurrence of F. mexicanum in Little Cedar Canyon, and is not
within the area designated as critical habitat. Approximately 500 F.
mexicanum were documented at this rediscovered occurrence (Snapp-Cook
2007, p. 1). The significance of this occurrence and its impact on
designated critical habitat will need to be further evaluated by the
Service. Appropriate action, if any, will be addressed in a future
rulemaking. For a detailed discussion of the distribution of F.
mexicanum and Ceanothus ophiochilus documented prior to this final
designation, please refer to the proposed critical habitat designation
published in the Federal Register on October 3, 2006 (71 FR 58340).
Previous Federal Actions
On August 10, 2004, the Center for Biological Diversity and
California Native Plant Society challenged our failure to designate
critical habitat for these two species as well as three other plant
species (Center for Biological Diversity, et al. v. Gale Norton,
Secretary of the Department of the Interior, et al., C-04-3240 JL, N.
D. Cal.). In a Settlement Agreement dated December 21, 2004, we agreed
to submit for publication in the Federal Register a proposed
designation of critical habitat, if prudent and determinable, on or
before September 20, 2006, and a final determination by September 20,
2007. As part of the 2006 proposed designation we determined that it
was prudent to designate critical habitat for each of these two
species. The combined proposed critical habitat designation for both
species was signed on September 18, 2006, and published in the Federal
Register on October 3, 2006 (71 FR 58340). This final rule completes
the Service's obligations regarding these species under the December
21, 2004, settlement agreement.
A draft economic analysis (DEA) for the proposed designation was
completed on March 2, 2007, and a notice of availability for this DEA
was published in the Federal Register on April 5, 2007 (72 FR 16756).
Publication of the notice of availability opened a public comment
period for the draft economic analysis of the proposed designation as
well as the proposed designation from April 5, 2007, to May 7, 2007.
Please refer to the ``Previous Federal Actions'' section of the
proposed critical habitat rule for Ceanothus ophiochilus and
Fremontodendron mexicanum, which published in the Federal Register on
October 3, 2006 (71 FR 58340) for a discussion of additional Federal
actions
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that occurred prior to the designation of critical habitat for each
species.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Ceanothus ophiochilus and
Fremontodendron mexicanum in the proposed rule that published on
October 3, 2006 (71 FR 58340), and in the notice of availability of the
DEA published on April 5, 2007 (72 FR 16756). We also 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 comment period that opened on October 3, 2006, and
closed on December 4, 2006, we received three comments directly
addressing the proposed critical habitat designation: Two from peer
reviewers and one from the County of San Diego. We did not receive any
requests for a public hearing during this first comment period. A
second comment period opened on April 5, 2007, to allow for comment on
the DEA and the proposed critical habitat. During the comment period
that opened on April 5, 2007, and closed on May 7, 2007, we received
seven comments directly addressing the proposed critical habitat
designation and the draft economic analysis. Of these latter comments,
two were from peer reviewers, one was from a Federal agency, two were
from local governments, one was from an organization, and one was from
an individual.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from five 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 of the
peer reviewers. The peer reviewers generally concurred with our methods
and conclusions and one peer reviewer commented that the information
for Fremontodendron mexicanum was well researched and complete.
All comments are addressed in the following summary and
incorporated into the final rule as appropriate.
Peer Reviewer Comments
1. Comment: One peer reviewer requested that we clarify the
statement that Ceanothus ophiochilus is found on metavolcanic
substrate. The peer reviewer indicated that the 1977 Jennings Geologic
Maps do not indicate any metavolcanic substrate, only gabbro substrate
in the vicinity of species occurrences.
Response: We reviewed the soils information for this species.
Geological maps that are more recent than the 1977 Jennings Geologic
Maps are available. These maps indicate that the area around Vail Lake
and in the Agua Tibia Wilderness, where Ceanothus ophiochilus is found,
consists of metavolcanic, metasedimentary, and Gabbro substrates
(Kennedy et al. 2000, p. 1; and Kennedy and Mertz 2003, p. 1).
2. Comment: One peer reviewer stated that the Ceanothus ophiochilus
population in Subunit 1A near Vail Lake is important to the
preservation of the genetic purity of this species and should not be
excluded from critical habitat because the Western Riverside County
Multiple Species Habitat Conservation Plan (MSHCP) does not adequately
protect this population. The peer reviewer made the following points to
the argument that this population is important and should be protected:
a. In the proposed rule we wrote that Ceanothus ophiochilus
``appears'' to hybridize with C. crassifolius; however, the peer
reviewer commented that C. ophiochilus ``does'' hybridize with C.
crassifolius and that there are several specimens deposited at the
herbarium of Rancho Santa Ana Botanic Garden which document the
hybridization of these two species.
b. The peer reviewer commented that both Ceanothus ophiochilus and
C. crassifolius are members of the subgenus Cerastes. All members of
this subgenus lack a burl and are obligate seeders. The peer reviewer
states that because both of these species only regenerate from seeds
following a fire and that the two species hybridize, the threat of
hybridization is a threat to the survival of the species.
c. The peer reviewer commented that the occurrences near Vail Lake
and the occurrences in the Agua Tibia wilderness are affected
differently by hybrids because Ceanothus crassifolius grows immediately
adjacent to the C. ophiochilus in the Agua Tibia Wilderness and these
two species are separated by 0.25 mi (0.4 km) in Vail Lake.
d. The peer reviewer commented that due to soil disturbance from
roads and fuel breaks within the populations of Ceanothus ophiochilus
in the Agua Tibia Wilderness, hybrid plants are now more interspersed
with the population. The greater amount of hybrid individuals may
increase the relative likelihood of further introgressive hybridization
within the new cohort of C. ophiochilus. This contrasts with the
populations near Vail Lake where the natural distance to C.
crassifolius populations is greater and there has not been disturbance
within the population.
These factors lead to the conclusion that the population at Vail
Lake has a much better chance of keeping the pure form of C.
ophiochilus intact and lower the risk caused by hybridization.
Response: We agree with the peer reviewer's comments on the
potential problems associated with hybridization, and we have made the
appropriate changes to this final rule to clarify that hybridization is
a threat to this species (please see the ``Primary Constituent
Elements'' section for Ceanothus ophiochilus). However, we disagree
with the peer reviewer's comment that Subunit 1A for C. ophiochilus
should not be excluded from critical habitat because the Western
Riverside County MSHCP does not adequately protect this population. The
Western Riverside County MSHCP provides measures to benefit the
conservation of C. ophiochilus by: protecting habitat from surface-
disturbing activities; implementing specific management and monitoring
practices to help ensure the conservation of C. ophiochilus in the
MSHCP Conservation Area; maintaining the physical and ecological
characteristics of occupied habitat; and conducting surveys and
implementing other required procedures to ensure avoidance of impacts
to at least 90 percent of suitable habitat areas determined important
to the long-term conservation of C. ophiochilus within the Criteria
Area. As discussed in the proposed critical habitat rule, the exclusion
of critical habitat does not dismiss or lessen the value that the Vail
Lake population has to the overall conservation of this species.
Rather, we have determined that the benefits of excluding Subunit 1A
are greater than the benefits of including the subunit, and the
exclusion of Subunit 1A will not result in the extinction of the
species (please see the ``Relationship of Critical Habitat to Habitat
Conservation Plan Lands --Exclusions Under Section 4(b)(2) of the Act''
section of this final rule for a detailed discussion).
3. Comment: A second peer reviewer commented that the hybridization
between Ceanothus ophiochilus and C. crassifolius may result in the
loss of homogeneous C. ophiochilus populations at some sites. This is
especially true in those populations where the C. crassifolius
significantly outnumbers C. ophiochilus or where the two species are in
close contact. The
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reviewer further commented that management plans need to take this
potential problem into consideration.
Response: The information provided by this peer reviewer and the
previous peer reviewer help to explain why hybridization threatens this
species. We have made the appropriate changes to this final rule to
clarify that hybridization is a threat to the species (please see
``Primary Constituent Elements'' section for Ceanothus ophiochilus and
the ``Special Management Considerations or Protection'' section). We
have based this critical habitat designation on the best scientific and
commercial data available. Currently, we are unaware of any studies
specifically addressing the extent to which these two species are
hybridizing. We also do not have information on the reproductive
characteristics of the hybrid plants in the wild. However, we agree
that researching the issue of hybridization as it relates to C.
ophiochilus will be important to the conservation of this species.
4. Comment: One peer reviewer stated that Ceanothus ophiochilus
will not survive in the long term if intentionally exposed to fire-
suppression. The peer reviewer stated that this species is unable to
reproduce vegetatively and requires fire to prepare seeds for
germination and provide an open, mineral-rich soil free from
competition among seedlings. The peer reviewer commented that plans for
managing critical habitat need to take this natural process into
consideration.
Response: Designation of critical habitat does not necessarily
require changes to existing management plans. However, we have
incorporated this information as it relates to the potential impacts of
fire-suppression into the ``Primary Constituent Elements'' section for
Ceanothus ophiochilus of this final rule, so it will be considered in
any relevant future section 7 consultations. We will also encourage
parties to consider the effects of fire-suppression when developing
management plans covering areas supporting essential habitat for C.
ophiochilus.
5. Comment: One peer reviewer indicated that the seeds of
Fremontodendron decumbens differ from the seeds of F. mexicanum.
Fremontodendron decumbens seeds have an orange waxy protrusion called a
caruncle. The caruncle attracts ants which in turn disperse the seeds.
It has been reported that F. mexicanum does not have a caruncle. The
peer reviewer commented that this should be verified through a formal
study because the presence or absence of a caruncle has important
implications in the regeneration ecology of seed dispersal in this
species and, therefore, its continued persistence.
Response: As required under the Act, we have based this critical
habitat designation on the best scientific and commercial data
available. We agree that investigating the seed dispersal mechanism for
Fremontodendron mexicanum and the relationship with ants or other
possible dispersers is important. We encourage further study and will
continue to investigate dispersal mechanisms as we work towards the
conservation of the species.
Public Comments
6. Comment: The County of San Diego commented that private lands in
subunits 1A and 1B occupied by Fremontodendron mexicanum are entirely
within a designated preserve area that will be protected and managed
under the San Diego MSCP. The County provided specific information on
the monitoring and management activities that will benefit this species
and requested that lands covered by the MSCP be excluded from the final
designation under section 4(b)(2) of the Act.
Response: In the proposed rule, we requested comments on the
appropriateness of excluding lands occupied by Fremontodendron
mexicanum covered by the San Diego MSCP but did not propose these lands
for exclusion. Based on comments we received during the public comment
periods for the proposed rule, we have determined that even though F.
mexicanum is not a covered species under the San Diego MSCP, private
lands occupied by this species will be conserved under the San Diego
MSCP through the Otay Ranch Phase 2 Resource Management Plan. The Otay
Ranch Phase 2 Resource Management Plan includes specific protection
measures that will benefit F. mexicanum. In addition, these private
lands will receive management for associated species that are covered
under the MSCP that is consistent with the biological needs of F.
mexicanum and preservation of its primary constituent elements. Based
on the benefits of preserving and fostering our partnerships with these
local jurisdictions and other non-Federal entities, and after
considering the conservation benefits provided by the Otay Ranch Phase
2 Resource Management Plan under the MSCP, we have now determined that
the benefits of excluding these lands from critical habitat outweigh
the benefits of including these lands, and we have, therefore, excluded
133 ac (54 ha) of private lands proposed as critical habitat for this
species from this final designation under section 4(b)(2) of the Act
(see the ``Relationship of Critical Habitat to Habitat Conservation
Plan Lands--Exclusions Under Section 4(b)(2) of the Act'' section of
this final rule for detailed discussion of the protections provided
under the MSCP).
7. Comment: The County indicated that the location of subunit 1A is
not consistently described in the proposed rule. The County stated the
proposed rule indicates that subunit 1A for Fremontodendron mexicanum
is entirely on BLM land, but the map indicates that the subunit
contains BLM land and private land.
Response: The proposed rule (71 FR 58340, October 3, 2006)
indicates that subunit 1A for Fremontodendron mexicanum consists of
both BLM and private land in the unit description on page 58350 and in
Table 1 on the same page.
8. Comment: One commenter requested that we discuss how the
designation of critical habitat for Ceanothus ophiochilus may
contribute to the fuel load and the fire hazard in the area around the
designation. The commenter also requested that we identify range land
plants species important to healthy rangelands that C. ophiochilus
could overtake in its recovery after wildfire.
Response: Ceanothus ophiochilus is a relatively uncommon component
of chaparral and occurs in very limited areas. We do not believe that
the conservation of this species will increase the fire danger in areas
where critical habitat is designated. Management for this species would
favor a natural fire regime, on the order of once every 20 to 50 years
(Keeley 2006, p. 367). Ceanothus ophiochilus is restricted to a limited
soil type found in small patches on ridge-tops and north-facing slopes.
This species is found in chaparral habitat and not areas that are
historically range land. Following fire, C. ophiochilus repopulates
limited areas in chaparral habitat and will not overtake rangelands.
9. Comment: One commenter stated that the critical habitat
designation should include all lands occupied by these two species.
Response: Under section 3(5)(c) of the Act, critical habitat shall
not include the entire geographical area which can be occupied by the
species unless otherwise determined by the Secretary. The proposed
designation of critical habitat for these two species included all of
the areas known to be occupied by Ceanothus ophiochilus and
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Fremontodendron mexicanum at the time of the proposed rule (71 FR
58340, October 3, 2006). After critical habitat was proposed for
Fremontodendron mexicanum, approximately 500 F. mexicanum were
documented at the location of an historical occurrence on Otay Mountain
that was previously believed to be extirpated. This rediscovered
occurrence is not within the area proposed as critical habitat. 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. Therefore, critical habitat designations
do not signal that habitat outside the designation is unimportant or
may not be required for recovery.
10. Comment: One commenter stated that we should include critical
habitat Subunit 1A for Ceanothus ophiochilus because the Western
Riverside County Multiple Species Habitat Conservation Plan (MSHCP)
fails to provide special management to address altered fire regime and
nonnative species.
Response: Under the Western Riverside County MSHCP, an adaptive
management program will be used to meet the conservation goals and
objectives for this species. The species account for Ceanothus
ophiochilus in the MSHCP documentation acknowledges that altered fire
regimes and nonnative invasive species threaten this species. The
Western Riverside County MSHCP provides a mechanism to address special
management considerations and protections for the population of C.
ophiochilus and its primary constituent elements identified for
conservation under the MSHCP in Subunit 1A. After considering all
relevant factors, including the conservation measures provided by the
MSHCP, we have determined that the benefits of excluding lands covered
by the MSHCP from critical habitat outweigh the benefits of inclusion
(see ``Relationship of Critical Habitat to Habitat Conservation Plan
Lands--Exclusions Under Section 4(b)(2) of the Act'' section for a
detailed discussion of the MSHCP and further explanation of the bases
for this conclusion).
11. Comment: One commenter stated that both the Western Riverside
County MSHCP and U.S. Forest Service's (USFS) Land Management Plan
(LMP) should be evaluated using the same standards when considering the
exclusion of critical habitat Subunit 1A and 1B for Ceanothus
ophiochilus.
Response: We did evaluate lands covered by the Western Riverside
County MSHCP and the USFS's Land Management Plan for exclusion from the
final designation using the same standards under section 4(b)(2) of the
Act. In considering whether this plan provides adequate management or
protection for the species for purposes of applying section 4(b)(2) of
the Act, we evaluated the plan based on the following three criteria:
(1) The plan is complete and provides the same or a higher level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act; (2) there is a
reasonable expectation that the conservation management strategies and
actions will be implemented based on past practices, written guidance,
or regulations; and (3) the plan provides conservation strategies and
measures consistent with currently accepted principles of conservation
biology. As discussed in the ``Relationship of Critical Habitat to
Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of
the Act'' section, we believe that the Western Riverside County MSHCP
fulfills these criteria, and we are excluding non-Federal lands covered
by this plan that provide for the conservation of Ceanothus ophiochilus
from the final designation of critical habitat pursuant to section
4(b)(2) of the Act. The USFS's Land Management Plan contains general
provisions for conservation of this species, and additional guidance
documents are available that suggest specific management and
conservation actions that should be considered. However, the LMP does
not identify specific management measures to address the threat posed
by short-interval fires and by competing nonnative species (Zedler
1983, p. 815; Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v, 48,
61). Therefore, after analyzing the LMP in light of the criteria
identified above, we have determined that the LMP does not provide
management for C. ophiochilus in a manner that provides the same or
higher level of protection from adverse modification or destruction
than that provided through a consultation under section 7(a)(2) of the
Act. In addition, as discussed below in the ``Exclusions under Section
4(b)(2) of the Act'' section below, we have determined not to exclude
these Federal lands from the final designation of critical habitat
pursuant to section 4(b)(2) of the Act.
12. Comment: One commenter stated that both subunits 1A and 1B for
Fremontodendron mexicanum need to be retained in the final designation
of critical habitat, despite the overlap of F. mexicanum with other
species that are included in the Multiple Habitat Preserve Area/Pre-
approved Mitigation Area of the MSCP for the City and County of San
Diego.
Response: Fremontodendron mexicanum is not covered by the San Diego
MSCP; however, all of the known occurrences of this species occur
within the preserve design for the MSCP (Pryor 2007, p. 1-2). When the
private lands where F. mexicanum occurs are conveyed into the MSCP
preserve, they will be subject to adaptive management activities,
consistent with the MSCP. Protections, management, and monitoring are
described in the draft Otay Ranch Phase 2 Resource Management Plan
(Otay Ranch 2002, p. 141-144; Pryor 2007, p. 2). Therefore, we believe
that private lands where this species and associated primary
constituent elements are found will be managed in a way that will help
to achieve the recovery of this species and have determined that the
benefits of exclusion outweigh the benefits of inclusion as described
in the ``Relationship of Critical Habitat to Habitat Conservation Plan
Lands--Exclusions Under Section 4(b)(2) of the Act'' section.
13. Comment: One commenter stated that we should use the Primary
Constituent Elements (PCEs) to model suitable habitat for these species
and designate suitable unoccupied habitat for these species. The
commenter stated that the Service should consider and evaluate the
recovery benefits of critical habitat designation as part of our
critical habitat designation.
Response: When determining habitat essential for the conservation
of these species, we used a set of specific criteria for each species
(see ``Criteria Used To Identify Critical Habitat'' below for more
detail). Based on the resulting areas that were identified using these
criteria, we made the determination that additional, unoccupied areas
were not essential for the conservation of either species. We believe
the current distribution of known, occupied locations of both species
will provide for the conservation and contribute to the recovery of
these species. Additionally, both of these species occur in very
limited areas. These species are endemic to a very narrow range, and we
have determined that the best conservation strategy for these two
species is to conserve them in the locations where they currently are
found. Accordingly, when the best available scientific data does 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.
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When proposing and finalizing critical habitat designations, the
Service does consider the recovery benefits to species. The
identification of those lands that are essential for the conservation
of the species and can, if managed, provide for the recovery of a
species, is beneficial. The process of proposing and finalizing a
critical habitat rule provides the Service with the opportunity to
identify the species' essential primary constituent elements and areas
essential for the conservation of the species. The designation process
includes peer review and public comment on the identified features and
lands. This process is valuable to land owners and managers in
developing conservation management plans for identified lands, as well
as any other occupied or unoccupied suitable habitat that may not have
been included in the Service's determination of essential habitat.
14. Comment: One commenter requested that we evaluate how an
exclusion under 4(b)(2) of the Act will affect the recovery of the
species in addition to whether or not the exclusion will lead to the
extinction of the species.
Response: We believe the designation of critical habitat promotes
the recovery of species, and when proposing and finalizing critical
habitat designations we do consider the recovery benefits to species.
When considering an exclusion under section 4(b)(2) of the Act, the
recovery benefits to the species from designating a particular area as
critical habitat are fully considered when we determine whether the
benefits of inclusion of such area are outweighed by the benefits of
exclusion.
If we determine that the benefits of excluding a particular area
from critical habitat outweigh the benefits of including such area, and
have determined that excluding the area from the final critical habitat
designation is appropriate, we then evaluate whether that exclusion
would result in the extinction of the species and provide clear
explanation for this determination. If we have been considering an
exclusion that we determine will result in the extinction of a species,
consistent with the statutory requirements of Section 4(b)(2), we will
not exclude the area from the critical habitat designation. Please see
the ``Relationship of Critical Habitat to Habitat Conservation Plan
Lands--Exclusions Under Section 4(b)(2) of the Act'' section of this
final rule for a detailed discussion and our determinations that the
exclusions in this final rule will not result in the extinction of
Ceanothus ophiochilus or Fremontodendron mexicanum. Areas meeting the
definition of critical habitat for both C. ophiochilus and F. mexicanum
occur on private lands. The HCPs in Riverside County and San Diego
County include these private lands and provide for the management and
monitoring of these lands as they are conserved. These plans are
believed to provide for long-term conservation of these lands that the
designation of critical habitat would not provide (please see the
``Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion).
15. Comment: One comment stated that the individual supports all of
the past and on-going conservation efforts that have taken place for
these two species; however, these conservation efforts are not a
substitute for critical habitat. The person commented that critical
habitat complements the conservation goals of habitat conservation
plans and, by designating critical habitat, the Service assures that
the Federal Government meets its legal obligation to ensure the
continued existence and recovery for Ceanothus ophiochilus and
Fremontodendron mexicanum.
Response: The process of designating critical habitat does
complement the existing habitat conservation plans (HCPs). The proposed
rule identifies areas that meet the definition of critical habitat.
These areas are then analyzed based on existing land-use planning
documents, such as HCPs. Based on this analysis, areas may be excluded
from the final designation of critical habitat, if the benefits of
exclusion outweigh the benefits of including them in the critical
habitat designation and the exclusions will not result in the
extinction of the species. This exclusion analysis considers all
benefits, including recovery benefits, and through the analysis the
Service meets all legal requirements for designation of critical
habitat.
16. Comment: One commenter expressed support for our exclusion of
private lands within the Western Riverside County MSHCP; however, the
commenter stated that all lands covered by the MSHCP, including the
USFS lands, should be excluded from critical habitat. The commenter
cited the Implementing Agreement for the MSHCP indicating the Service
had agreed that ``in the event that a critical habitat determination is
made for any covered species adequately conserved * * * lands within
the boundaries of the MSHCP will not be designated as critical habitat
(Implementing Agreement for the Western Riverside County Multiple
Species Habitat Conservation Plan, sec. 14.10 at p. 51).''
Response: In the Biological Opinion for the MSHCP, the Service
concluded that the proposed conservation strategy would adequately
conserve Ceanothus ophiochilus and its primary constituent elements
(Service 2004, p. 402-406). We believe that the conservation mechanisms
in place under the HCP will adequately conserve the populations and
primary constituent elements on private lands. Further, the benefits
analysis provided herein under section 4(b)(2) of the Act determined
that the benefits of excluding the specific lands from critical habitat
outweigh the benefits of including them in critical habitat (see the
``Exclusions under Section 4(b)(2) of the Act'' section of this final
rule for further details). Therefore, we have excluded private lands
covered by the MSHCP. We appreciate the conservation work that the USFS
is doing for C. ophiochilus; however, the USFS is not a signatory to
the MSHCP permit and therefore is not bound by the requirements of the
MSHCP. The phrase ``lands within the boundaries of the MSHCP,'' as used
in the provision of the Implementing Agreement referenced by the
commenter, refers to lands under the jurisdiction of the MSHCP
permittees, and does not include federal lands that fall within the
overall MSHCP boundaries. For the reasons stated in the above response
to Comment 11, we have determined not to exclude the USFS lands.
Comments From Other Federal Agencies
17. Comment: The USFS commented that the proposed critical habitat
contains the occurrences and habitat for Ceanothus ophiochilus on USFS
land. They also highlighted that the proposed designation stated that
the Cleveland National Forest (CNF) lands were proposed for designation
because of impacts to ridge tops from grading associated with the
creation of fuel breaks, impacts to the associated vegetation community
from unnatural fire regimes, and nonnative species. While the USFS
agreed that these threats could damage C. ophiochilus habitat, they
indicated that their Land Management Plan (LMP) provides for the
minimization and avoidance of impacts to endangered species.
Specifically, they indicated that Standard 12 of their LMP states,
``When occupied or suitable habitat for threatened, endangered,
proposed, candidate or sensitive species is present on an ongoing or
proposed project site, consider species guidance documents to develop
project-specific design criteria.''
[[Page 54989]]
Response: We acknowledge the efforts the USFS has made towards the
conservation of the Ceanothus ophiochilus and acknowledge that the LMP
contains general provisions for conservation of this species. However,
in considering whether the plan provides adequate management or
protection for the species for purposes of applying section 4(b)(2) of
the Act, we evaluated the plan based on the following three criteria:
(1) The plan is complete and provides the same or a higher level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act; (2) there is a
reasonable expectation that the conservation management strategies and
actions will be implemented based on past practices, written guidance,
or regulations; and (3) the plan provides conservation strategies and
measures consistent with currently accepted principles of conservation
biology. The LMP does not identify specific management measures to
address the threat posed by short-interval fires and by competing
nonnative species (Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v,
48, 61). Because the USFS does not have a management plan specific to
C. ophiochilus that provides the same or better level of protection
from adverse modification or destruction than that provided through a
consultation under section 7(a)(2) of the Act, we have determined that
exclusion of these lands from the final designation of critical habitat
pursuant to section 4(b)(2) of the Act is not appropriate for these
Federal lands.
18. Comment: The USFS commented that like HCPs, the USFS LMPs are
designed to ensure the long-term survival of covered species in the
plan area and designed to protect, restore, and enhance the value of
USFS lands as habitat for listed species. They indicated that their LMP
provides comparable conservation measures for Ceanothus ophiochilus and
its primary constituent elements as the Western Riverside County MSHCP,
and therefore should be excluded from critical habitat under section
4(b)(2) of the Act.
Response: Based on a review of the USFS LMP, we do not believe that
the LMP provides conservation measures for Ceanothus ophiochilus
comparable to those provided in the Western Riverside County MSHCP.
During the development of this final designation, we evaluated lands
covered by the Western Riverside County MSHCP, the USFS's LMP, and
other relevant conservation plans for exclusion using the same
standards under section 4(b)(2) of the Act. Please see our response to
Comment number 11.
19. Comment: The USFS commented that current laws, regulations, and
policies, and land management practices on the CNF are adequate to
provide for the conservation of Ceanothus ophiochilus and its habitat.
They further state that designation of critical habitat on CNF lands
would not provide any additional benefit to the conservation of C.
ophiochilus, or its habitat, and that designation would unnecessarily
add to their analysis burden by requiring the USFS to make a
determination of effect regarding critical habitat when consulting
under section 7(a)(2) of the Act.
Response: Although the comment letter from the USFS does not
explicitly request that the lands proposed for designation be excluded
from final critical habitat, based on their comments we did consider
their lands for exclusion. We concluded that despite the LMP and other
regulations that exist, which require the USFS to manage Ceanothus
ophiochilus and its habitat, the benefits of including this area in
critical habitat outweigh the benefits of excluding this area from the
designation of critical habitat (please see the ``Unit Description''
section for detailed discussion on the exclusion of the USFS lands in
this critical habitat determination).
Comments Related To the Draft Economic Analysis
20. Comment: One commenter stated that the DEA should consider
potential economic impacts to all occupied and unoccupied but suitable
habitat, rather than just the areas included in the draft rule.
Response: In a critical habitat designation, section 4(b)(2) of the
Act requires that we consider the economic impact of specifying any
particular area as critical habitat. Therefore, we prepare an economic
analysis to identify the economic impact of designating areas proposed
as critical habitat (including any areas proposed for exclusion under
section 4(b)(2) of the Act). The economic analysis focuses on
activities within or affecting these areas. Potential economic impacts
to areas supporting occupied and suitable habitat that are outside the
boundaries of proposed critical habitat are not relevant to the
required analysis under section 4(b)(2) of the Act.
21. Comment: One commenter stated that the DEA overestimates costs
associated with conserving both Ceanothus ophiochilus and
Fremontodendron mexicanum, because it includes economic impacts
attributable to listing under the Act. The comment further states that
the DEA inaccurately attributes all of the costs to critical habitat
designation and confuses the economic costs by including costs of
conservation efforts for the species (not just critical habitat) with
conservation of the proposed critical habitat.
Response: The economic analysis estimates the total cost of species
conservation activities without subtracting the impact of pre-existing
baseline regulations (i.e., the cost estimates are fully co-extensive).
In 2001, the U.S. 10th Circuit Court of Appeals instructed the Service
to conduct a full analysis of all of the economic impacts of proposed
critical habitat designation, regardless of whether those impacts are
attributable co-extensively to other causes (New Mexico Cattle Growers
Ass'n v. USFWS, 248 F.3d 1277 (10th Cir. 2001)). The economic analysis
for Ceanothus ophiochilus and Fremontodendron mexicanum is consistent
with this direction from the U.S. 10th Circuit Court of Appeals. The
analysis identifies those economic activities believed most likely to
threaten the species and their habitat and, where possible, quantifies
the economic impact to avoid, mitigate, or compensate for such threats
within the boundaries of the critical habitat designation. We
acknowledge that some of these costs will likely be incurred regardless
of whether critical habitat is designated. However, due to the
difficulty in making a credible distinction between listing and
critical habitat effects within critical habitat boundaries, the
analysis considered all future conservation-related impacts to be
coextensive with the designation. We have not excluded any areas from
the final critical habitat designation based on economic impacts under
section 4(b)(2) of the Act.
22. Comment: One comment states that the DEA fails to evaluate any
benefits of conserving a species that is threatened by extinction. The
comment further notes that in addition to the dollar value of both
Ceanothus ophiochilus and Fremontodendron mexicanum, there are many
other values, destined to grow with our knowledge of the species in
science, medicine, and aesthetics and in ways still unforeseen. The
same commenter requests that at least some of these values be
quantified and estimated in the final economic analysis.
Response: Section 4(b)(2) of the Act requires the Secretary to
designate critical habitat based on the best scientific data available
after taking into consideration the economic impact, impact on national
security, and any
[[Page 54990]]
other relevant impact, of specifying any particular area as critical
habitat. The Service's approach for estimating economic impacts
includes both economic efficiency and distributional effects. The
measurement of economic efficiency is based on the concept of
opportunity costs, which reflect the value of goods and services
foregone in order to comply with the effects of the designation (e.g.,
lost economic opportunity associated with restrictions on land use).
Where data are available, the economic analyses do attempt to measure
the net economic impact. However, no data was found that would allow
for the measurement of such an impact, nor was such information
submitted during the public comment period.
Most of the other benefit categories submitted by the commenter
reflect broader social values, which are not the same as economic
impacts. While the Secretary must consider economic and other relevant
impacts as part of the final decision-making process under section
4(b)(2) of the Act, the Act explicitly states that it is the
government's policy to conserve all threatened and endangered species
and the ecosystems upon which they depend. Thus, we believe that
explicit consideration of broader social values for the species and
their habitat, beyond the more traditionally defined economic impacts,
is not necessary as Congress has already clarified the social
importance.
We note, as a practical matter, it is difficult to develop credible
estimates of such values, as they are not readily observed through
typical market transactions and can only be inferred through advanced,
tailor-made studies that are time consuming and expensive to conduct.
We lacked both the budget and time needed to conduct such research
before meeting our court-ordered final rule deadline. In summary, we
believe that Congress has placed significant value on conserving any
and all threatened and endangered species and the habitats upon which
they depend, and the critical habitat designation process under section
4 of the Act incorporates these values. Thus, although we limit the
scope of the economic analysis to economic impacts (both positive and
negative), when we consider whether it is appropriate to exclude
particular areas from critical habitat under section 4(b)(2) of the
Act, we consider not just economic impacts, but all relevant impacts.
In doing so, consistent with the value Congress has placed on species
preservation, conservation benefits for the species at issue derived
from the designation of critical habitat are afforded appropriate
weight in the balancing analysis under section 4(b)(2).
23. Comment: One commenter requested that we identify the potential
cost of loss of private property and habitat due to wildfires that may
occur as a result of the designation of critical habitat.
Response: Ceanothus ophiochilus and Fremontodendron mexicanum are
adapted to a natural fire regime with wildfire intervals of
approximately 20 to 50 years. For example, C. ophiochilus reproduces
after fire from seed. As a result, fire suppression activities can
considerably limit the species' ability to reproduce because the seeds
need fire to sprout. However, short-interval fires can also be
detrimental to the species by preventing plants from reaching
reproductive maturity and facilitating the establishment of non-native
grasses that compete for limited space and resources. Federal agencies
indicated that they would need to develop fire management plans for
each species. Adoption of species-specific fire management plans, which
are themselves subject to consultation pursuant to Section 7 of the
Act, will allow Federal land managers to maintain the natural fire
regimes required by each species. Fire management plans take
neighboring properties into account such that application of prescribed
burns or management of wildfires should occur in such a manner that
would not increase the risk to surrounding properties and development.
As such, we do not believe it is appropriate to evaluate the cost of
the potential loss of private property due to wildfire as a part of
this designation.
24. Comment: One commenter stated that the co-extensive costs
projected in the draft economic analysis are unacceptable.
Response: In 2001, the U.S. 10th Circuit Court of Appeals
instructed the Service to conduct a full analysis of all of the
economic impacts of proposed critical habitat designation, regardless
of whether those impacts are attributable co-extensively to other
causes (New Mexico Cattle Growers Ass'n v. USFWS, 248 F.3d 1277 (10th
Cir. 2001)). The economic analysis for Ceanothus ophiochilus and
Fremontodendron mexicanum is consistent with this direction from the
U.S. 10th Circuit Court of Appeals. See response to comment 21.
Summary of Changes From Proposed Rule
In preparing the final critical habitat designation for Ceanothus
ophiochilus and Fremontodendron mexicanum, we reviewed and considered
public and peer review comments on the proposed designation of critical
habitat and the DEA. As a result of comments received on the proposed
rule and the DEA, and a reevaluation of the proposed critical habitat
boundaries, we made the changes identified below to our proposed
designation.
In the proposed rule, we requested comments on the appropriateness
of excluding lands occupied by Fremontodendron mexicanum covered by the
San Diego MSCP but did not propose these lands for exclusion. Based on
information we received during the public comment periods for the
proposed rule, we have determined that even though F. mexicanum is not
a covered species under the San Diego MSCP, private lands occupied by
this species will be conserved under the San Diego MSCP through the
Otay Ranch Phase 2 Resource Management Plan. The management provided by
the MSCP for other covered species will also benefit the recovery of F.
mexicanum (see ``Relationship of Critical Habitat to Habitat
Conservation Plan Lands--Exclusions Under Section 4(b)(2) of the Act''
section for further discussion). We reanalyzed the lands covered by the
MSCP for exclusion and determined that the benefits of excluding these
lands from critical habitat outweighs the benefits of including them in
the designation. Therefore, we have excluded 133 ac (54 ha) of private
lands proposed as critical habitat for this species from this final
designation under section 4(b)(2) of the Act (see the ``Exclusions
under Section 4(b)(2) of the Act'' section of this final rule for
further details).
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 that are necessary to
bring any endangered species or threatened species to the point at
which the measures provided under the Act are no longer necessary. Such
methods and
[[Page 54991]]
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.
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(a)(2) of the Act requires
consultation on Federal actions that may affect critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow government or public
access to private lands. Section 7(a)(2) of the Act is a purely
protective measure and does not require implementation of restoration,
recovery, or enhancement measures, nor does it apply to private actions
for which there is no involved Federal action.
To be included in a critical habitat designation, habitat within
the geographical area occupied by the species 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 (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 considerations or protection. Furthermore, when the best
available scientific data do not demonstrate that the conservation
needs of the species require additional areas, we cannot designate
critical habitat in areas outside the geographical area occupied by the
species at the time of listing. However, an area currently occupied by
the species but not occupied at the time of listing, will likely be
essential to the conservation of the species and, therefore, may 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 may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge. 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 and commercial 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 of Ceanothus ophiochilus and
Fremontodendron mexicanum, but are outside their respective critical
habitat designations, 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 (PCEs)
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 within areas occupied by the species at time of listing, we
consider those physical or biological features (primary constituent
elements (PCEs)) that are essential to the conservation of the species,
and 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.
Ceanothus ophiochilus
The specific primary constituent elements required for Ceanothus
ophiochilus are derived from the biological and physical needs of the
species as described in the final listing rule (63 FR 54956, October
13, 1998), the proposed critical habitat rule (71 FR 58340, October 3,
2006), and information contained in this final rule.
Space for Growth and Reproduction
Ceanothus ophiochilus is restricted to ridgetops and north to
northeast facing slopes in chamise chaparral (PCE 1). It occurs on
soils formed from metavolcanic and ultra-basic parent materials or
deeply weathered gabbro substrates, all of which are phosphorus
deficient and thus considered to be nutrient-poor (PCE 2) (Boyd et al.
1991, pp. 31, 37-38; Kennedy et al. 2000, p. 1; and Kennedy and Mertz
2003, p. 1). These soils are similar to serpentine soils, which are
well known for the high number of associated rare and endemic plants
(Kruckeberg 1984, pp.3-5, p. 34). The high number of rare and endemic
plants that grow on nutrient-poor soils, sometimes termed as harsh
soils, is due to the difficulty that common plants have with growing in
these conditions. In turn, when plants become established on such
soils, they remain genetically isolated from close relatives that are
not able to thrive on the nutrient-poor soils. In this way, these
nutrient-poor soils may help the species maintain reproductive
isolation (Boyd et al. 1991, p. 37-38). This is important because C.
ophiochilus hybridizes with the locally
[[Page 54992]]
common C. crassifolius in places where the two species grow in close
proximity (Boyd et al. 1991, p. 37-38). Hybrids are generally found on
the margins of C. ophiochilus occurrences, where the soil changes from
the harsh metavolcanic and gabbro soils that C. ophiochilus is
typically found on to the milder sedimentary soils that support species
such as C. crassifolius (Boyd et al. 1991, p. 37-38). Hybridization is
a common natural phenomenon among the species of Ceanothus genus
(Schmidt 1993, p. 935; Fross and Wilken 2006, pp. 131-149), and
metavolcanic and gabbro soils are important for growth and reproduction
of C. ophiochilus, as well as for space and separation from C.
crassifolius, a species with which C. ophiochilus is known to
hybridize.
Soils where Ceanothus ophiochilus is found in the Agua Tibia
Wilderness are mapped as Ramona, Cienaba, and Vista series (USDA 1973,
pp. 38-40, 70-71, 82-83), but appear to be Las Posas series based on
field review and soil samples (USFS 1998a). Soils where C. ophiochilus
is found at Vail Lake are mapped as Cajalco series (USDA 1971, p. 21).
Ceanothus ophiochilus is found in chamise chaparral or mixed
chamise-ceanothus-manzanita chaparral at elevations of 2,000 feet (ft)
to 3,000 ft (610 meters (m) to 914 m) (California Department of Fish
and Game 2000; California Natural Diversity Database (CNDDB) 2005) with
the following associated species: Adenostoma fasciculatum, A.
sparsifolium, Quercus berberidifolia, C. crassifolius, Arctostaphylos
spp. Salvia clevelandii, and Eriodictyon crassifolium (PCE 3) (Boyd and
Banks 1995, p. 15). Within chaparral of southern Riverside County,
these associated species are much more common than C. ophiochilus.
We have little information about the pollinators or reproductive
biology of this species. This species is in the subgenus Cerastes, and,
like all members of this subgenus, it is an obligate seeding species
and does not have a burl (an underground mass from which the species
can resprout following fire). Therefore, this species requires fire to
establish new seedlings. However, if fire burns too frequently there is
insufficient time for the plant to mature and establish a seed bank,
placing populations at risk of extirpation (Keeley 2006, p. 367). The
natural fire regime for the chaparral ecosystem is once every 20 to 50
years. Little information exists regarding the dispersal of this
species.
Primary Constituent Elements for Ceanothus ophiochilus
Pursuant to the Act and its implementing regulations, we are
required to identify the known physical or biological features (PCEs)
within the geographical area occupied at the time of listing that are
essential to the conservation of Ceanothus ophiochilus, which may
require special management considerations or protection. All areas
designated as critical habitat for C. ophiochilus are occupied, within
the species' historical geographic range, 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 species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
the PCEs for Ceanothus ophiochilus are:
(1) Flat to gently sloping north to northeast facing ridge tops
with slopes in the range of 0 to 40 percent slope that provide the
appropriate solar exposure for seedling establishment and growth;
(2) Soils formed from metavolcanic and ultra-basic parent materials
and deeply weathered gabbro or pyroxenite-rich outcrops that provide
nutrients and space for growth and reproduction. Specifically in the
areas that Ceanothus ophiochilus is found, the soils are:
(a) Ramona, Cienaba, Las Posas, and Vista series in the Agua Tibia
Wilderness; and
(b) Cajalco series in the vicinity of Vail Lake; and
(3) Chamise chaparral or mixed chamise-ceanothus-arctostaphylos
chaparral at elevations of 2,000 ft to 3,000 ft (610 m to 914 m) that
provide the appropriate canopy cover and elevation requirements for
growth and reproduction.
Fremontodendron mexicanum
The specific primary constituent elements required for
Fremontodendron mexicanum are derived from the biological and physical
needs of the species as described in the final listing rule (63 FR
54956, October 13, 1998), the proposed critical habitat (71 FR 58340,
October 3, 2006), and information contained in this final rule.
Space for Growth and Reproduction
For its individual and population growth, Fremontodendron mexicanum
needs alluvial terraces and benches adjacent to moderately sloped
streams, creeks, and ephemeral drainages; stabilized northwest to
northeast facing slopes associated with steep slopes (San Miguel-
Exchequer soil complex has slopes in a range of 9 to 70 percent (USDA
1973, p. 76)) (PCE 1 and 2). Fremontodendron mexicanum occurs at
elevations of 900 ft (274 m) to 3,000 ft (914 m) in the United States
(63 FR 54956); however, in Mexico, F. mexicanum occurs at an elevation
of approximately 30 ft (9 m). Erosion from the steep slopes on Otay
Mountain provides soils that form benches along the streambeds in Cedar
Canyon and Little Cedar Canyon where F. mexicanum grows.
Fremontodendron mexicanum also occupies some areas on slopes adjacent
to the streambeds (Snapp-Cook 2006). In addition to plants growing near
the streambed, plants observed on slopes adjacent to the streambeds
were between 10 and 500 ft (3 and 152 m) from the streambed. Although
the role that the plants on sloped areas play in the dynamics of growth
and reproduction for this species is unknown at this time, the high
density of these plants suggests that they may play a significant role.
Fremontodendron mexicanum is found growing within open stands of
Cupressus forbesii (Tecate cypress), which often form a closed-cone
coniferous forest, or is interspersed with mixed chaparral and Platanus
racemosa (sycamore) (PCE 3) (63 FR 54956, October 13, 1998). In
addition to cypress and sycamore, F. mexicanum is frequently associated
with Dendromecon rigida ssp. rigida (tree poppy) and Malosma laurina
(laurel sumac) (Snapp-Cook 2006). The canyon slopes around F. mexicanum
are generally vegetated with chaparral and coastal sage scrub species
(63 FR 54956, October 13, 1998). The mix of chaparral and riparian
species may provide adequate shade and ground cover to exclude
nonnative species, preventing such species from competing with F.
mexicanum (Snapp-Cook 2006).
Fremontodendron mexicanum is a facultative resprouter, meaning it
is able to sprout from underground roots after a fire, flood, or other
disturbance destroys the above-ground plant, and can also reproduce
from seeds following a fire. This ability to repopulate an area using
multiple strategies following a fire makes F. mexicanum more resilient
to short-interval fire than obligate seeders (plants that can only
reproduce from seed following a fire). For example an obligate seeder
like Tecate cypress needs 6 to 30 years to produce sufficient numbers
of seeds to reproduce following a fire, whereas, F. mexicanum has the
ability to begin replacing its canopy with new basal sprouts relatively
quickly following a fire (Keeley 1986). Other members of the
Fremontodendron genus have a
[[Page 54993]]
structure on their seeds that attracts ants to disperse the seeds (Boyd
2001, p. 234; Keeley 1987, p. 443). This structure is a waxy orange
protrusion growing at the base of each seed; it is called a
``caruncle'' or an ``elaiosome.'' No observations have been made that
indicate the presence of a caruncle on F. mexicanum; however, this
should be investigated to learn if any similarities exist between the
various species of Fremontodendron that would provide information about
how F. mexicanum's seed is dispersed. More research is needed into F.
mexicanum's reproduction and the role that pollination and seed
production play in its survival.
Hydrology and Soil Moisture Requirements for the Species
Fremontodendron mexicanum has been cultivated since its discovery
in the early 1900s, and the data available from the cultivation reports
state that this species does well in soils that are well drained
(Bornstein et al. 2005). Fremontodendron mexicanum grows on terraces
and alluvial benches that are maintained by a natural hydrological
cycle, which erodes the surrounding metavolcanic soils on the slopes
and deposits those soils in the stream beds. The natural hydrological
cycle also maintains open and semi-open spaces where F. mexicanum can
establish itself. The natural flows may also provide transportation of
seeds down stream to establish and augment downstream occurrences.
Primary Constituent Elements for Fremontodendron mexicanum
Pursuant to the Act and its implementing regulations, we are
required to identify the known physical and biological features (PCEs)
within the geographical area occupied at the time of listing that are
essential to the conservation of Fremontodendron mexicanum, which may
require special management considerations or protections. All areas
designated as critical habitat for F. mexicanum are occupied, within
the species' historic geographic range, 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 species and the requirements of the habitat to sustain
the essential life history functions of the species, we have determined
the PCEs for Fremontodendron mexicanum are:
(1) Alluvial terraces, benches, and associated slopes within 500 ft
(152 m) of streams, creeks, and ephemeral drainages where water flows
primarily after peak seasonal rains with a gradient ranging from 3 to 7
percent; and stabilized northwest to northeast facing slopes associated
with steep (9 to 70 percent) slopes that provide space for growth and
reproduction.
(2) Silty loam soils derived from metavolcanic and metabasic
bedrock, mapped as San Miguel-Exchequer Association soil series that
provide nutrients and substrate with adequate drainage to support
seedling establishment and growth.
(3) Open Cupressus forbesii and Platanus racemosa stands at
elevations of 900 ft (274 m) to 3,000 ft (914 m) within a matrix of
chaparral (such as Dendromecon rigida ssp. rigida and Malosma laurina)
and riparian vegetation that provide adequate space for growth and
reproduction.
The designation of critical habitat for Ceanothus ophiochilus and
Fremontodendron mexicanum is designed for the conservation of PCEs
necessary to support the life history functions of each species and the
areas containing the PCEs for each species. Units are designated based
on sufficient PCEs being present to support each species' life history
functions. Each critical habitat unit contains all of the PCEs and
supports multiple life processes for the species present in that unit.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
determined to be occupied at the time of listing contain the primary
constituent elements that may require special management considerations
or protection.
As stated in the final listing rule, threats to Ceanothus
ophiochilus include habitat destruction, alteration, fragmentation, and
degradation from urban development, as well as hybridization and fire
at too frequent intervals to allow for sufficient seed bank
replenishment in the soil (63 FR 54956, October 13, 1998). Threats to
Fremontodendron mexicanum as cited in the final listing rule include
altered fire regimes, indirect impacts from nearby urbanization, and
increased competition from nonnative species (63 FR 54965, October 13,
1998). These threats could impact the PCEs determined to be essential
for conservation of C. ophiochilus and F. mexicanum.
Urban development near Ceanothus ophiochilus critical habitat units
may alter the habitat characteristics required by the species. Land
grading in and around occurrences of C. ophiochilus may affect the
topography of the habitat and change the soil composition (PCEs 1 and
2) rendering the habitat unsuitable for species growth and
reproduction. Urban development may also encourage invasion by
nonnative plant species, changing the vegetation community and/or
directly impacting the vegetation community (PCE 3). In addition, urban
development near this species may increase the frequency of fire. All
identified private land is covered by the Western Riverside County
MSHCP (MSHCP), and those lands have been excluded from the final
designation (see ``Relationship of Critical Habitat to Habitat
Conservation Plan Lands--Exclusions Under Section 4(b)(2) of the Act''
section for a detailed discussion). No urban development is expected to
directly impact the occurrences of C. ophiochilus on land owned by the
USFS. Therefore, we do not believe threats from urban development would
require special management considerations or protection of the PCEs on
designated critical habitat for this species.
The management of both fire frequency and the placement of fuel
breaks is important for the conservation of Ceanothus ophiochilus, and
special management considerations or protection of the PCEs for C.
ophiochilus may be required on USFS lands to address potential threats
posed by fire management activities. In the past, fuel breaks have been
placed on the ridgelines (PCE 1) in C. ophiochilus habitat and have
caused soil disturbance (PCE 2). Studies of fuel breaks in the
Cleveland National Forest near the critical habitat designation have
demonstrated an increase in the density of competing nonnative species
(Merriam et al. 2007, p. 48), and it has been hypothesized that fuel
breaks promote the introduction and spread of nonnative plants (Merriam
et al. 2007, p. vi). These nonnative invasive plants alter local fuel
conditions and change fire behavior and frequency (Merriam et al. 2007,
p. 61). Ceanothus ophiochilus is very sensitive to short-interval
fires, which may extirpate the species from a site entirely (Keeley
2006, p. 367). Soil disturbance, caused by the creation of fuel breaks,
has also led to increased hybridization between Ceanothus ophiochilus
and C. crassifolius. However, the degree to which hybridization is
impacting C. ophiochilus and its habitat is not yet known.
Fremontodendron mexicanum does not face direct threats from urban
development; however, the PCEs for this species may require special
management considerations or
[[Page 54994]]
protection to address the threat from nonnative species. Nonnative
plant species such as Tamarix spp. (salt cedar) and Cortaderia selloana
(Pampas grass) could reduce the amount of space available to F.
mexicanum (PCE 1 and 2) and alter the vegetation community (PCE 3) if
they become well established in either Cedar Canyon or Little Cedar
Canyon. In addition, the PCEs for this species may require special
management considerations or protection to address negative impacts
related to fire fighting activities. Fire fighting activities may alter
the alluvial terraces and benches that F. mexicanum grows on (PCE
1) if activities occur directly in the streambed adjacent to
where F. mexicanum occurs. Special management may be needed to insure
that fire fighting activities do not alter these areas or that measures
are in place to restore damage to habitat after the activities occur.
Likewise, future fuel breaks should be designed such that they do not
create situations were extra run off is channeled into the canyons thus
increasing the scouring that occurs in the creek bottoms and eroding
the terraces and benches where F. mexicanum grows (PCE 1).
In our unit descriptions for this designation, we further describe
the threats requiring special management considerations or protection
for each subunit.
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 essential to the conservation of Ceanothus ophiochilus or
Fremontodendron mexicanum. Recovery of Ceanothus ophiochilus and
Fremontodendron mexicanum will require conservation of all populations
identified in the proposed critical habitat rule. Both these species
are narrow endemics with few populations and all populations may be
important for redundancy and resilience of these two narrow-ranging
species.
To delineate the critical habitat for Ceanothus ophiochilus, we
used the following criteria: (1) We identified all areas occupied by C.
ophiochilus at the time of listing and/or currently occupied using the
location data from Boyd and Banks (1995); (2) we created GIS
(Geographic Information System) polygons, using these areas as guides,
that included the occurrences and the ridge tops and north- and
northeast-facing slopes immediately adjacent (within 500 ft (152 m)) to
the occurrences of C. ophiochilus; and (3) we connected the polygons
that were closer than 0.6 mi (1 km) to reduce fragmentation and ensure
that the subunits captured populations and not individual occurrences.
To delineate the critical habitat for Fremontodendron mexicanum, we
used the following criteria: (1) We identified all areas, except one
(see below), occupied by native occurrences (we did not include
occurrences known to be of cultivated origin) of F. mexicanum at the
time of listing and/or currently occupied using current data in the
California Natural Diversity Database (CNDDB) (2005) and data obtained
from field surveys (Snapp-Cook 2006); (2) we created GIS polygons,
using these areas as guides, that included the alluvial terraces and
benches occupied by F. mexicanum, and the associated slopes within 500
ft (152 m) of the areas occupied by F. mexicanum to insure that
adequate space was delineated to encompass all existing F. mexicanum
identified in the CNDDB and in field surveys conducted prior to the
publication of the proposed critical habitat (71 FR 58340, October 3,
2006); and (3) we connected the polygons that were closer than 0.5 mi
(0.8 km) from one another with a 660 ft (201 m) wide corridor to allow
for connectivity between known occurrences for the transfer of pollen
and seeds and to allow for natural riparian process to occur. The
recently rediscovered occurrence of F. mexicanum on Otay Mountain
(Snapp-Cook 2007, p. 1) discussed above in the ``Distribution'' section
was not included in the delineation because the Service was not aware
of its existence at the time of the proposed critical habitat rule, and
the significance of this rediscovered population and its impact on
designated critical habitat will need to be further evaluated by the
Service. Appropriate action, if any, will be addressed in a future
rulemaking.
We analyzed all areas meeting the criteria used to identify
critical habitat for both species to determine if any existing
conservation or management plans exist that benefit either species and/
or their respective PCEs. We determined that the Western Riverside
County MSHCP benefits the conservation of Ceanothus ophiochilus and
that the San Diego MSCP benefits the conservation of Fremontodendron
mexicanum. We also determined that the benefits of excluding these
areas outweighed the benefits of including these areas in the critical
habitat designation. Therefore, approximately 213 ac (87 ha) of private
lands occupied by these species covered by the MSHCP or MSCP have been
excluded under section 4(b)(2) of the Act in this final designation
(please see ``Exclusions under Section 4(b)(2) of the Act'' for a
detailed discussion).
The MSHCP and MSCP documents were used as aids in determining areas
that contain the features essential to the conservation of these two
species. No areas outside the geographical area occupied at the time of
listing by Ceanothus ophiochilus or Fremontodendron mexicanum were
included in this final designation.
When determining critical habitat boundaries within this final
rule, we made every effort to avoid including developed areas such as
buildings, paved areas, and other structures that lack PCEs for
Ceanothus ophiochilus and Fremontodendron mexicanum. 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 final rule and are not designated as
critical habitat. Therefore, Federal actions limited to these areas
would not trigger section 7(a)(2) consultations, unless they may affect
the species or primary constituent elements in adjacent critical
habitat.
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.
Critical Habitat Designation
We are designating approximately 203 ac (82 ha) of federally-owned
land as critical habitat for Ceanothus ophiochilus and approximately
228 ac (93 ha) of federally-owned land as critical habitat for
Fremontodendron mexicanum. Table 1 provides the approximate area (ac/
ha) determined to meet the definition of critical habitat for C.
ophiochilus and F. mexicanum, the areas being excluded from final
critical habitat designation under section 4(b)(2) of the Act (please
see ``Exclusions under Section 4(b)(2) of the Act'' for a detailed
discussion), and the areas being designated as critical habitat.
Areas proposed as critical habitat for Ceanothus ophiochilus and
Fremontodendron mexicanum, areas excluded from the final critical
habitat designation under section 4(b)(2) of the Act, and areas
designated as final critical habitat (acres (ac)/hectares (ha)) are
shown in Table 1.
[[Page 54995]]
Table 1
----------------------------------------------------------------------------------------------------------------
Areas excluded
Proposed critical under section
Critical habitat unit Land ownership habitat (71 FR 4(b)(2) of the Final critical habitat
58340) Act
----------------------------------------------------------------------------------------------------------------
Ceanothus ophiochilus:
1. Western Riverside County
1A. Vail Lake.......... Private.......... 76 ac (31 ha).... 76 ac (31 ha).... 0 ac (0 ha).
1B. Agua Tibia USFS*............ 203 ac (82 ha)... 0 ac (0 ha)...... 203 ac (82 ha).
Mountains.
Private.......... 4 ac (2 ha)...... 4 ac (2 ha)...... 0 ac (0 ha).
Total.............. ................. 283 ac (115 ha).. 80 ac (33 ha).... 203 ac (82 ha).
Fremontodendron mexicanum:
1. Otay Mountain
1A. Cedar Canyon....... BLM*............. 145 ac (59 ha)... 0 ac (0 ha)...... 145 ac (59 ha).
Private.......... 114 ac (46 ha)... 114 ac (46 ha)... 0 ac (0 ha).
1B. Little Cedar Canyon BLM*............. 83 ac (34 ha).... 0 ac (0 ha)...... 83 ac (34 ha).
Private.......... 19 ac (8 ha)..... 19 ac (8 ha)..... 0 ac (0 ha).
Total.............. ................. 361 ac (147 ha).. 133 ac (54 ha)... 228 ac (93 ha).
----------------------------------------------------------------------------------------------------------------
*USFS = U.S. Forest Service; BLM = Bureau of Land Management.
Below we present brief descriptions of all units, and reasons why
they meet the definition of critical habitat for Ceanothus ophiochilus
and Fremontodendron mexicanum.
Critical Habitat Designation for Ceanothus ophiochilus
We are designating 203 ac (82 ha) of land as critical habitat for
Ceanothus ophiochilus within a single unit. In the proposed critical
habitat, this unit was divided into two subunits: Subunits 1A (Vail
Lake) and 1B (Agua Tibia Mountains). We excluded all of subunit 1A (76
ac (31 ha)) and a portion of subunit 1B (4 ac (2 ha)) under section
4(b)(2) of the Act from the final designation of critical habitat for
C. ophiochilus (please see the ``Exclusions under Section 4(b)(2) of
the Act'' section). Therefore, only the lands in subunit 1B designated
as final critical habitat are discussed below.
Unit 1: Western Riverside County
Unit 1 is located near Vail Lake in southern Riverside County,
California. The area was occupied at the time of listing and contains
all of the primary constituent elements essential to the conservation
of the species that may require special management considerations or
protection for Ceanothus ophiochilus. Below, we present a brief
description of subunit 1B, reasons why it meets the definition of
critical habitat for C. ophiochilus, and our rationale for our final
designation of critical habitat.
Subunit 1B, Agua Tibia Mountains, Riverside County, California
Subunit 1B (Agua Tibia Mountains) consists of 203 ac (82 ha) of
land which is managed by the USFS. Subunit 1B contains two of the three
CNDDB element occurrences (2 and 3) of Ceanothus ophiochilus, both
known at the time of listing. The PCEs within this subunit may require
special management considerations or protection to address the threats
posed by short-interval fires, competing nonnative species, impacts to
ridge tops (PCE 1) from grading associated with the creation of fuel
breaks and impacts to the associated vegetation community (PCE 3)
resulting from unnatural fire regimes. Subunit 1B is entirely within
the Agua Tibia Wilderness of the Cleveland National Forest.
Recently the USFS completed the LMP for the Four Southern
California National Forests. Implementation of the LMP was analyzed by
the Service to address potential impacts to Ceanothus ophiochilus. This
analysis found that impacts to C. ophiochilus would be minor or
negligible upon implementation of appropriate minimization measures due
to the low-impact nature of activities planned (e.g., dispersed
recreation, non-motorized trails) (Service 2005 p. 129-132). However,
the LMP does not identify specific management measures to address the
threat posed by short-interval fires and by competing nonnative species
(Keeley 2006, p. 367; Merriam et al. 2007, p. vi, v, 48, 61). Because
the USFS does not have a management plan specific to C. ophiochilus
that provides the same or better level of protection from adverse
modification or destruction than that provided through a consultation
under section 7 of the Act, we have determined that exclusion of these
lands from the final designation of critical habitat pursuant to
section 4(b)(2) of the Act is not appropriate for these Federal lands
(please see ``Exclusions under Section 4(b)(2) of the Act'' for a
detailed discussion). Therefore, we are designating the USFS lands
containing features essential to the conservation of C. ophiochilus as
critical habitat for this species.
Critical Habitat Designation for Fremontodendron mexicanum
We are designating 228 ac (93 ha) of land as critical habitat for
Fremontodendron mexicanum within one unit on Otay Mountain in southern
San Diego County. This unit contains land managed by the Bureau of Land
Management (BLM) within the Otay Mountain Wilderness Area (Otay
Mountain Wilderness Act of 1999, Pub. L. 106-145, H.R. 15). This unit
is further divided into two subunits. Subunit 1A (Cedar Canyon) and
subunit 1B (Little Cedar Canyon) are each separate canyons on the
northwest portion of Otay Mountain. All 133 ac (54 ha) of private land
in Unit 1 proposed as critical habitat (71 FR 58340, October 3, 2006)
have been excluded from this final designation under section 4(b)(2) of
the Act (please see ``Exclusions under Section 4(b)(2) of the Act'' for
a detailed discussion).
The critical habitat described below constitutes our best
assessment of specific areas determined to be occupied at the time of
listing, containing the primary constituent elements essential to the
conservation of the species that may require special management
considerations or protection for Fremontodendron mexicanum.
Below, we present brief descriptions of the critical habitat
subunits, reasons why they meet the definition of critical habitat for
Fremontodendron mexicanum, and our rationale for their designation as
critical habitat.
[[Page 54996]]
Subunit 1A, Cedar Canyon, Otay Mountain, San Diego County, California
Subunit 1A, Cedar Canyon, consists of 145 ac (59 ha) of public land
managed by the BLM. Subunit 1A contains CNDDB element occurrences 1,
13, and 16. Land in this subunit is entirely within the Cedar Canyon
Area of Critical Environmental Concern (ACEC) and a Research Natural
Area (RNA) (BLM 1994, pp. 1, 19, 22). The BLM has not yet developed a
specific management plan that outlines how the species will be managed
in the Cedar Canyon ACEC and RNA. This subunit was occupied at the time
of listing and contains all of the features essential to the
conservation of the species. In 1998, when Fremontodendron mexicanum
was federally listed, less than 100 individual plants were documented
from Cedar Canyon. This occurrence was thought to be the only location
where F. mexicanum occurred naturally in the United States. Prior to
the 2003 Otay fire, the canyon was dominated by Cupressus forbesii
(Tecate cypress) and riparian vegetation. In late 2005 and early 2006
when this canyon was surveyed for F. mexicanum by Service biologists,
over 1,000 plants were found (Snapp-Cook 2006). This increase in the
number of plants may be a result of the 2003 Otay fire that burned
Cedar Canyon as this species is a facultative resprouter (i.e.,
resprouts and produces seedlings after fire). The phenomenon of F.
mexicanum resprouting following fire was also recorded following a 1979
fire in Cedar Canyon (CNDDB 2005 p. 1). The PCEs in this subunit may
require special management considerations or protection to address
negative impacts related to fire fighting activities (PCE 1) and
negative impacts from the growth of nonnative species that may affect
the space available for this species (PCE 1, 2, and 3).
Subunit 1B, Little Cedar Canyon, Otay Mountain, San Diego County,
California
Subunit 1B, Little Cedar Canyon, consists of 83 ac (34 ha) of
public land managed by the BLM. Little Cedar Canyon is located
approximately 1.9 mi (3 km) to the west of Cedar Canyon. The land in
this subunit is part of the Otay Mountain Wilderness Area. This site
was not discovered until after the species was listed; however, we
believe that it was occupied at the time of listing. Thirty-one healthy
plants were documented in Little Cedar Canyon in the summer of 2006,
and evidence of mature seed was detected (Martin 2006). Although this
occurrence is small when compared to the more than 1,000 plants
observed in Cedar Canyon in early 2006 (Snapp-Cook 2006), the Little
Cedar Canyon occurrence will help to stabilize the existence of F.
mexicanum in the United States and the discovery of F. mexicanum in
Little Cedar Canyon almost doubles the amount of known occupied habitat
for this species in the United States. The PCEs in this subunit may
require special management considerations or protection to minimize
impacts related to fire fighting activities and to the invasion of
nonnative species that may affect the space available for this species
(PCE 1, 2, and 3).
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. Decisions
by the 5th and 9th Circuit Court of Appeals have invalidated our
definition of ``adversely modify'' (see Gifford Pinchot Task Force v.
U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir. 2004) and
Sierra Club v. U.S. Fish and Wildlife Service et al., 245 F.3d 434,
442F (5th Cir. 2001)), and we do not rely on this regulatory definition
when analyzing whether an action is likely to destroy or adversely
modify critical habitat. Under the statutory provisions of the Act, we
determine destruction or adverse modification 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 its intended conservation role for the species.
Section 7(a)(4) of the Act requires Federal agencies to confer with
the Service 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, as any conservation recommendations in a conference
report or opinion are strictly advisory. However, once a species
proposed for listing becomes listed, or proposed critical habitat is
designated as final, the full prohibitions of section 7(a)(2) apply to
any discretionary Federal action.
The primary utility of the conference procedures is to allow a
Federal agency to maximize its opportunity to adequately consider
species proposed for listing and proposed critical habitat and to avoid
potential delays in implementing its proposed action, because of the
section 7(a)(2) compliance process, if we list those species or
designate critical habitat. We may conduct conferences either
informally or formally. We typically use informal conferences as a
means of providing advisory conservation recommendations to assist the
agency in eliminating conflicts that the proposed action may cause. We
typically use formal conferences when we or the Federal agency believes
the proposed action is likely to jeopardize the continued existence of
the species proposed for listing or adversely modify proposed critical
habitat.
We generally provide the results of an informal conference in a
conference report, while we provide the results of a formal conference
in a conference opinion. We typically prepare conference opinions on
proposed species or critical habitat in accordance with procedures
contained at 50 CFR 402.14, as if the proposed species were already
listed or the proposed critical habitat was already designated. We may
adopt the conference opinion as the biological opinion when the species
is listed or 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)).
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 the 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,
we document compliance with the requirements of section 7(a)(2) through
our 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, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
[[Page 54997]]
Can be implemented in a manner consistent with the
intended purpose of the action,
Can be implemented consistent with the scope of the
Federal agency's legal authority and jurisdiction,
Are economically and technologically feasible, and
Would, in the Director's opinion, avoid jeopardizing the
continued existence of the listed species or destroying or adversely
modifying 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 instances where we have
listed a new species or subsequently designated critical habitat that
may be affected and the Federal agency has retained discretionary
involvement or control over the action (or the agency's 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.
Federal activities that may affect Ceanothus ophiochilus or
Fremontodendron mexicanum and/or their respective designated critical
habitat require consultation under section 7 of the Act. Activities on
State, Tribal, local, or private lands requiring a Federal permit (such
as a permit from the U.S. Army Corps of Engineers under section 404 of
the Clean Water Act (33 U.S.C. 1251 et seq.) or a permit from us under
section 10 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) are also subject to the section 7(a)(2) 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(a)(2) consultations.
Application of the Adverse Modification Standard for Actions Involving
Effects To the Critical Habitat
The key factor related to the adverse modification determination is
whether, with implementation of the proposed Federal action, the
affected critical habitat would continue to serve its intended
conservation role for the species, or would retain its current ability
for the primary constituent elements to be functionally established.
Activities that may destroy or adversely modify critical habitat are
those that alter the PCEs to an extent that appreciably reduces the
conservation value of critical habitat for Ceanothus ophiochilus or
Fremontodendron mexicanum. Generally, the conservation role of
Ceanothus ophiochilus or Fremontodendron mexicanum 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, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and, therefore, should
result in consultation for Ceanothus ophiochilus or Fremontodendron
mexicanum include, but are not limited to:
(1) Actions that would directly impact Ceanothus ophiochilus and
Fremontodendron mexicanum habitat and their primary constituent
elements. Such activities could include, but are not limited to, road
grading, streambed clearing, the creation of fuel breaks, and grading
near these occurrences. These activities could change the physical and
biological features of the habitat by affecting the topography of the
site; removing soil and associated species; burying the appropriate
soil for these species, making it unavailable for species growth and/or
reproduction; or encouraging invasion by nonnative plant species;
(2) Actions that would alter fire frequency in the areas occupied
by Ceanothus ophiochilus. Such activities could include, but are not
limited to, prescribed burns. These activities could alter the soil
composition by increasing the nutrients in the soil; and
(3) Actions that would increase the presence of nonnative species.
Such activities could include, but are not limited to, seeding areas
with nonnative species following a fire and inadvertently introducing
nonnative seed via machinery, vehicles, and field gear. These
activities could reduce the ability of these two species to grow and
produce seed because the nonnative species may crowd out or otherwise
compete with Ceanothus ophiochilus and Fremontodendron mexicanum. An
increased presence of nonnative species could also change the fire
regime as mentioned above or could alter the soil composition.
We consider all of the units designated as critical habitat, as
well as those that have been excluded, to contain features essential to
the conservation of Ceanothus ophiochilus and Fremontodendron
mexicanum. All subunits are within the geographic range of each
species, respectively, and were occupied at the time of listing. All of
the subunits are currently occupied. Federal agencies already consult
with us on activities in areas occupied by these species, or if either
species may be affected by the action, to ensure that their actions do
not jeopardize the continued existence of C. ophiochilus and F.
mexicanum.
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat 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 legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, 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 we
consider excluding an area, 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 have made. In addition, the Service has
conducted an economic analysis of the impacts of the proposed critical
habitat designation and related factors, which was made available for
public review and comment on April 5, 2007 (72 FR 16756). Based on
public comment which provided specific information about private lands
being proposed for
[[Page 54998]]
designation for Fremontodendron mexicanum, areas in addition to those
proposed for exclusion in the proposed critical habitat rule have been
excluded from critical habitat by the Secretary under the provisions of
section 4(b)(2) of the Act. This is provided for in the Act and in our
implementing regulations at 50 CFR 424.19.
Benefits of Designating Critical Habitat
Regulatory Benefits
The consultation provisions under section 7(a)(2) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on actions that may affect
critical habitat and must avoid destroying or adversely modifying
critical habitat. Prior to our designation of critical habitat, Federal
agencies must consult with us on actions that may affect a listed
species and must refrain from undertaking actions that are likely to
jeopardize the continued existence of such species. Thus the analysis
of effects to critical habitat is a separate and different analysis
from that of the effects to the species. Therefore, the difference in
outcomes of these two analyses represents the regulatory benefit of
critical habitat. For some species, and in some locations, the outcome
of these analyses will be similar, because effects on habitat will
often also result in effects on the species. However, the regulatory
standard is different; the jeopardy analysis looks at the action's
impact on survival and recovery of the species, while the adverse
modification analysis looks at the action's effects on the designated
habitat's contribution to the species' conservation. This will, in many
instances, lead to different results, and different regulatory
requirements.
For 30 years prior to the Ninth Circuit's decision in Gifford
Pinchot, we combined the jeopardy standard with the standard for
destruction or adverse modification of critical habitat when evaluating
Federal actions that affected occupied critical habitat. However, the
court of appeals ruled that the two standards are distinct and that
adverse modification evaluations require consideration of impacts on
species recovery. Thus, critical habitat designations may provide
greater benefits to the recovery of a species than would listing alone.
There are two limitations to the regulatory effect of critical
habitat. First, a consultation is required only where there is a
Federal nexus (an action authorized, funded, or carried out by any
Federal agency). If there is no Federal nexus, the critical habitat
designation of private lands itself does not restrict any actions that
destroy or adversely modify critical habitat. Second, the designation
only limits destruction or adverse modification. By its nature, the
prohibition on adverse modification is designed to ensure no
degradation of those areas containing the physical and biological
features essential to the conservation of the species or of those
unoccupied areas that are essential to the conservation of the species.
Critical habitat designation alone, however, does not require property
owners to undertake specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when we
concur in writing that the proposed Federal action is not likely to
adversely affect critical habitat. However, if we determine through
informal consultation that adverse impacts are likely to occur, then we
would initiate formal consultation, which would conclude when we issue
a biological opinion on whether the proposed Federal action is likely
to result in destruction or adverse modification of critical habitat.
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 suggest the
implementation of any reasonable and prudent alternative. We suggest
reasonable and prudent alternatives to the proposed Federal action only
when our biological opinion results in an adverse modification
conclusion.
We believe that in many instances the regulatory benefit of
critical habitat is low when compared to voluntary conservation efforts
or management plans. The conservation achieved through implementing
HCPs or other habitat management plans can be greater than what we
achieve through multiple site-by-site, project-by-project, section
7(a)(2) consultations involving consideration of critical habitat.
Management plans may commit resources to implement long-term management
and protection to particular habitat for at least one and possibly
additional listed or sensitive species. Section 7(a)(2) consultations
commit Federal agencies to preventing adverse modification of critical
habitat caused by the particular project only, and not to providing
conservation or long-term benefits to areas not affected by the
proposed project. Thus, any HCP or management plan that considers
enhancement or recovery as the management standard may 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.
In providing the framework for the consultation process, the
previous section applies to all the following discussions of benefits
of inclusion or exclusion of critical habitat.
Educational Benefits
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 Ceanothus ophiochilus and Fremontodendron mexicanum. In general,
critical habitat designation always has educational benefits; however,
in some cases, they may be redundant with other educational effects.
For example, HCPs have had significant public input during their
development, which may largely duplicate the educational benefit of a
critical habitat designation. A second benefit of including lands in
critical habitat is that the designation of critical habitat would
inform State agencies and local governments about areas that could be
conserved under State laws or local ordinances.
Recovery Benefits
The process of designating critical habitat as described in the Act
requires that the Service identify those lands on which are found the
physical or biological features essential to the conservation of the
species and which may require special management considerations or
protection. In identifying those lands, the Service must consider the
recovery needs of the species, such that the habitat that is
identified, if managed, could provide for the survival and recovery of
the species. Furthermore, once critical habitat has been designated,
Federal agencies must consult with the Service under section 7(a)(2) of
the Act to ensure that their actions will not adversely modify
designated critical habitat or jeopardize the continued existence of
the species. As noted in the Ninth Circuit's Gifford Pinchot decision,
the Court ruled that the jeopardy and adverse modification standards
are distinct, and that adverse modification evaluations require
consideration of impacts to the recovery of species. Thus, through the
section
[[Page 54999]]
7(a)(2) consultation process, critical habitat designations provide
recovery benefits to species by ensuring that Federal actions will not
destroy or adversely modify designated critical habitat.
It is beneficial to identify those areas that are necessary for the
conservation of the species and that, if managed appropriately, would
further recovery measures for the species. The process of proposing and
finalizing a critical habitat rule provides the Service with the
opportunity to identify the physical or biological features essential
for conservation of the species within the geographical area occupied
by the species at the time of listing, as well as to determine other
areas essential to the conservation of the species. The designation
process includes peer review and public comment on the identified
features and areas. This process is valuable to land owners and
managers in developing conservation management plans for identified
areas, as well as any other occupied habitat or suitable habitat that
may not have been included in the Service's determination of essential
habitat.
However, the designation of critical habitat does not require that
any management or recovery actions take place on the lands included in
the designation. Even in cases where consultation has been initiated
under section 7(a)(2) of the Act, the end result of consultation is to
avoid jeopardy to the species and adverse modification of its critical
habitat, but not specifically to manage remaining lands or institute
recovery actions on remaining lands. Conversely, management plans
institute proactive actions over the lands they encompass to remove or
reduce known threats to a species or its habitat and, therefore, in
doing so, may implement recovery actions. We believe that the
conservation benefits to a species and its habitat that could be
achieved through the designation of critical habitat, in some cases,
are less than the conservation benefits that could be achieved through
the implementation of a management plan that includes species-specific
provisions and considers enhancement or recovery of listed species as
the management standard over the same lands. Consequently,
implementation of any HCP or management plan that considers enhancement
or recovery as the management standard will often provide as much or
more benefit than a consultation for critical habitat designation.
The information provided in this section applies to all the
following discussions that discuss the benefits of inclusion and
exclusion of critical habitat.
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, p. 2), and at least 80 percent of endangered or threatened
species occur either partially or solely on private lands (Crouse et
al. 2002, p. 720). Stein et al. (1995, p. 400) found that only about 12
percent of listed species were found almost exclusively on Federal
lands (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 are
essential to our understanding the status of species on non-Federal
lands, and necessary for us to implement recovery actions such as
reintroducing listed species and restoring and protecting habitat.
Many non-Federal landowners derive satisfaction from contributing
to endangered species recovery. We promote these private-sector efforts
through the Department of the Interior's Cooperative Conservation
philosophy. Conservation agreements with non-Federal landowners (HCPs,
safe harbor agreements, other conservation agreements, easements, and
State and local regulations) enhance species conservation by extending
species protections beyond those available through section 7(a)(2)
consultations. In the past decade, we have encouraged non-Federal
landowners to enter into conservation agreements, based on the view
that we can achieve greater species conservation on non-Federal land
through such partnerships than we can through regulatory methods (61 FR
63854; December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of attracting endangered species to their property.
Mounting evidence suggests 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. This perception
results 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).
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 outcome is greatly
amplified in situations where active management measures (such as
reintroduction, fire management, control of invasive species) are
necessary for species conservation (Bean 2002). We believe 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 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(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus
the benefits of excluding areas that are covered by effective
partnerships or other conservation commitments can often be high.
Benefits of Excluding Lands With HCPs or Other Approved Management
Plans From Critical Habitat
The benefits of excluding lands with HCPs or other approved
management plans 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
[[Page 55000]]
for listed species that are covered within the plan area. Many
conservation plans also provide conservation benefits to unlisted
sensitive species. Imposing an additional regulatory review as a result
of the designation of critical habitat may undermine these conservation
efforts and partnerships designed to proactively protect species to
ensure that listing under the Act will not be necessary. Our experience
in implementing the Act has found that designation of critical habitat
within the boundaries of management plans that provide conservation
measures for a species is a disincentive to many entities which are
either currently developing such plans, or contemplating doing so in
the future, because one of the incentives for undertaking conservation
is greater ease of permitting where listed species will be affected.
Addition of a new regulatory requirement would remove a significant
incentive for undertaking the time and expense of management planning.
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. 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 developing plans targeting
listed species' conservation.
A related benefit of excluding lands within management plans from
critical habitat designation is the unhindered, continued ability it
gives us 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.
We have found that potential participants are not inclined to
participate in such management plans when we designate critical habitat
within the area that would be covered by such a management plan, thus
having 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, both HCPs and Natural Communities Conservation Plan
(NCCP)-HCP applications require consultation, which would review the
effects of all HCP-covered activities that might adversely impact the
species under a jeopardy standard, including possibly significant
habitat modification (see definition of ``harm'' at 50 CFR 17.3), even
without the critical habitat designation. In addition, all other
Federal actions that may affect the listed species would still require
consultation under section 7(a)(2) of the Act, and we would review
these actions for possibly significant habitat modification in
accordance with the definition of harm referenced above.
The information provided in the previous section applies to all the
following discussions of benefits of inclusion or exclusion of critical
habitat.
Areas Considered for Exclusion Under Section 4(b)(2) of the Act
After considering the following areas under section 4(b)(2) of the
Act, we are excluding them from the critical habitat designation for
Ceanothus ophiochilus and Fremontodendron mexicanum. We are excluding
approximately 80 ac (33 ha) of non-Federal lands from the C.
ophiochilus critical habitat designation in subunits 1A and 1B that are
within the Western Riverside County MSHCP Plan Area, and all 133 ac (54
ha) of private land in Unit 1 from the designation of critical habitat
for F. mexicanum. A detailed analysis of our exclusion of these lands
under section 4(b)(2) of the Act is provided in the paragraphs below.
Relationship of Critical Habitat to Habitat Conservation Plan Lands
Exclusions Under Section 4(b)(2)--of the Act
When performing the required analysis under section 4(b)(2) of the
Act, the existence of a management plan (HCPs as well as other types)
that considers enhancement or recovery of listed species as its
management standard is relevant to our weighing of the benefits of
inclusion of a particular area in the critical habitat designation. We
considered the following criteria when we evaluated the management and
protection provided by the plans relevant to these critical habitat
designations:
(1) The plan is complete and provides the same or a higher level of
protection from adverse modification or destruction than that provided
through a consultation under section 7 of the Act;
(2) There is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) The plan provides conservation strategies and measures
consistent with currently accepted principles of conservation biology.
As discussed in detail below, we believe that the Western Riverside
County Multiple Species Habitat Conservation Plan (MSHCP) fulfills
these criteria with respect to the conservation of Ceanothus
ophiochilus. In addition, although not yet complete, the Otay Ranch
Phase 2 Resource Management Plan developed under the San Diego Multiple
Species Conservation Plan (MSCP) substantially fulfills these criteria
with respect to the conservation of Fremontodendron mexicanum.
Western Riverside County Multiple Species Habitat Conservation Plan
The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional HCP that addresses 146 listed and unlisted ``Covered
Species,'' including Ceanothus ophiochilus, within the 1,260,000 ac
(510,000 ha) Plan Area in western Riverside County. Participants in the
MSHCP include 14 cities in western Riverside County; the County of
Riverside (including the Riverside County Flood Control and Water
Conservation Agency, Riverside County Transportation Commission,
Riverside County Parks and Open Space District, and Riverside County
Waste Department); California Department of Parks and Recreation; and
the California Department of Transportation. The MSHCP was designed to
establish a multi-species conservation program that minimizes and
mitigates the expected loss of habitat and the incidental take of
Covered Species. On June 22, 2004, the Service issued a single
incidental take permit pursuant to section 10(a)(1)(B) of the Act to 22
Permittees under the MSHCP for a period of 75 years. The Service
granted the participating jurisdictions ``take authorization'' of
listed species in exchange for their contribution to the assembly and
management of the MSHCP Conservation Area, which the Service determined
met the requirements for issuance of an incidental take permit under
section 10 of the Act. Collectively, the MSHCP Conservation Area
includes new reserve lands and additional Federal partner lands,
totaling approximately 500,000 ac (202,343 ha).
The MSHCP will establish approximately 153,000 ac (61,916 ha) of
new conservation lands (Additional Reserve Lands) to complement the
approximate 347,000 ac (140,426 ha) of
[[Page 55001]]
existing natural and open space areas (e.g., State Parks, USFS, and
County Park lands known as Public/Quasi-Public (PQP) Lands) in forming
the approximately 500,000-ac (202,343-ha) MSHCP Conservation Area. The
precise configuration of the 153,000 ac (61,916 ha) of Additional
Reserve Lands is not mapped or precisely identified in the MSHCP, but
rather is based on textual descriptions within the bounds of a 310,000-
ac (125,453-ha) Criteria Area that is interpreted as implementation of
the MSHCP proceeds. For Ceanothus ophiochilus, critical habitat
subunits 1A (Vail Lake) and 1B (Agua Tibia Wilderness) are located
entirely within the MSHCP Plan Area on USFS and private lands.
The private lands within these subunits are within the Criteria
Area and are targeted for inclusion within the MSHCP Conservation Area
as Additional Reserve Lands. Specific conservation objectives in the
MSHCP for Ceanothus ophiochilus provide for conservation and management
of at least 13,290 ac (5,378 ha) of suitable chaparral habitat and at
least three core locations of this species in the vicinity of Vail Lake
and the Agua Tibia Wilderness. Additionally, the plan requires surveys
for C. ophiochilus as part of the project review process for public and
private projects where suitable habitat is present within a defined
boundary of the Criteria Area (see Criteria Area Species Survey Area
Map, Figure 6-2 of the MSHCP, Volume I). For locations with positive
survey results, 90 percent of those portions of the property that
provide long-term conservation value for the species will be avoided
until it is demonstrated that the conservation objectives for the
species are met. We are currently aware of only three populations of C.
ophiochilus in the MSHCP Conservation Area. The MSHCP recognizes these
same three populations. The goal of the MSHCP is to conserve a minimum
of three populations of C. ophiochilus. Although the specific location
of individual target areas for this species has yet to be identified,
we recognize that no other populations of the plant have been
identified and agree that conservation of three populations of this
plant through the survey requirements, avoidance and minimization
measures, and management for C. ophiochilus (and its PCEs) exceed any
conservation value provided as a result of any regulatory protections
that may be afforded through a critical habitat designation over the
private lands within these subunits.
We are excluding approximately 80 ac (33 ha) of non-Federal lands
from the Ceanothus ophiochilus critical habitat designation in subunits
1A and 1B that are within the MSHCP Plan Area under section 4(b)(2) of
the Act. These non-Federal lands comprise private lands to the west of
Vail Lake (approximately 76 ac (31 ha) in subunit 1A) and private lands
adjacent to the northern boundary of the Cleveland National Forest east
of Woodchuck Road (approximately 4 ac (2 ha) in subunit 1B).
The USFS lands within these subunits are considered PQP lands under
the MSHCP and as such are included within the overall 500,000 ac
(202,343 ha) MSHCP Conservation Area. While these Federal lands are
managed by the USFS and are an integral part of the overall
conservation strategy of the MSHCP, federal entities cannot be
permittees under a section 10(a)(1)(B) permit, and the USFS is not
bound by the terms of the MSHCP. In addition, the rationale provided
below supporting the exclusion of the private lands within these
subunits is not applicable to Federal lands. Therefore, we are not
excluding USFS lands within subunit 1B based on the MSHCP.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the exclusion from the final
designation of approximately 80 ac (33 ha) of critical habitat on non-
Federal lands within the MSHCP Plan Area, and have determined that the
benefits of excluding these non-Federal lands in subunits 1A and 1B
outweigh the benefits of including these lands. 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 MSHCP, and aid in fostering additional
partnerships for the benefit of species on non-Federal lands.
The benefits of excluding these lands from critical habitat
outweigh the minimal benefits of including these lands as critical
habitat. The PCEs required by Ceanothus ophiochilus will benefit by the
conservation measures outlined in the MSHCP. These conservation
measures include protecting and managing the PCEs within the MSHCP
Conservation Area by: Protecting habitat from surface-disturbing
activities; implementing specific management and monitoring practices
to help ensure the conservation of C. ophiochilus and its PCEs in the
Plan Area; maintaining the physical and ecological characteristics of
occupied habitat; and conducting surveys and implementing other
required procedures to ensure avoidance of impacts to at least 90
percent of suitable habitat areas determined important to the long-term
conservation of C. ophiochilus within the Criteria Area. The specific
area identified as Subunit 1A and the private lands identified within
Subunit 1B are subject to the requirements of the MSHCP. The benefits
from the required specific conservation actions, survey requirements,
avoidance and minimization measures, and management for C. ophiochilus
and its PCEs exceed any conservation value provided as a result of any
regulatory protections that may be afforded through a critical habitat
designation. As such, the regulatory benefits of including the 80 ac
(33 ha) of private land within the MSHCP plan area are minimal.
The educational benefits of critical habitat derived through
informing the public of areas important for the long-term conservation
of this species would also be minimal because these educational
benefits have been and continue to be accomplished through materials
provided on our Web site at http://www.fws.gov/carlsbad/. Further, many
educational benefits of critical habitat designation have already been
achieved through the overall designation process and notice and public
comment, and will occur whether or not these particular subunits are
designated.
In addition, the recovery benefits associated with designation,
identified above in the ``Recovery Benefits'' section, have already
been achieved through the public review process of the proposed
critical habitat rule. Designation of critical habitat does not require
that management or recovery actions take place on the lands included in
the designation. Preserving and supporting the partnerships that we
have developed with the local jurisdictions and project proponents in
the implementation the Western Riverside County MSHCP will provide a
greater benefit to the species, as it ensures both preservation and
management of lands we have determined essential for the conservation
of this species.
Exclusion Will Not Result in Extinction of the Species
We conclude that the exclusion of 80 ac (33 ha) from the final
designation of critical habitat for Ceanothus ophiochilus will not
result in the extinction of the species because the Western Riverside
County MSHCP provides for the conservation of this species and its PCEs
on all known occupied areas within the county and may also conserve
newly discovered
[[Page 55002]]
occurrences. Importantly, as we stated in our biological opinion, while
some loss of modeled habitat for C. ophiochilus is anticipated due to
implementation of the MSHCP, we concluded that implementation of the
plan will not jeopardize the continued existence of this species.
The jeopardy standard of section 7 and routine implementation of
conservation measures through the section 7 process also provide
assurances that the species will not go extinct. The exclusion of
critical habitat leaves these protections unchanged from those that
would exist if the excluded areas were designated as critical habitat.
Application of Section 4(b)(2) to Lands Within Otay Ranch Which Are
Within County of San Diego Subarea Plan Under the Multiple Species
Conservation Plan
All private lands proposed for designation of Fremontodendron
mexicanum are within the area covered by the ``Otay Ranch Phase 2
Resource Management Plan (Otay Ranch 2002, p. 260).'' This plan
provides for the phased conservation and development of lands in
southern San Diego County. Lands covered by this plan were originally
owned by a single owner. Following the development of the Plan the land
was divided into sections and sold to separate owners. The development
and associated conservation of these lands is currently taking place in
a phased approach. A large portion of land is proposed for conservation
purposes, but this land is not actually conserved until the associated
development on the section occurs. The land that we proposed for
designation is part of the eastern section of Otay Ranch and because it
is the furthest from existing development it will be one of the last
phases completed.
The conservation associated with the development of Otay Ranch
conserves both state and federally-listed species as well as sensitive
species that do not receive any legal protection under the Act. The
partnerships that the U.S. Fish and Wildlife Service, the California
Department of Fish and Game, and County of San Diego (as well as many
other entities) have formed with the private landowners and other
stakeholders through the work to conserve the sensitive biological
resources on Otay Ranch while at the same time allowing for both
residential and commercial development of the land have taken a long
time to cultivate. These lands are essential to the long-term
conservation of several species in southern San Diego County, including
Fremontodendron mexicanum.
In its current state, the land excluded from the designation of
critical habitat is not being managed under the Otay Ranch Phase 2
Resource Management Plan; however, ongoing measures are in place that
protect the primary constituent elements for Fremontodendron mexicanum.
The excluded area is fenced and has locked gates at access points. This
measure excludes any unauthorized off-road vehicle activity from the
area. The excluded area is also entirely within the area zoned by the
County of San Diego as open space. This places restrictions on any
development that would be permitted in this area.
Other areas within the Otay Ranch have been conserved as expected
and we believe a reasonable certainty exists that this area will be
conserved as planned. One of our partners involved with the
conservation of these lands, the County of San Diego, provided
significant comments on the future management that will occur on these
lands (Pryor 2007, p. 2). Fremontodendron mexicanum will benefit from
adaptive management activities that occur within the Otay Ranch
Preserve. The draft Otay Ranch Phase 2 Resource Management Plan (Otay
Ranch 2002, p. 52, 53, 141, 144) describes the following monitoring and
management activities, which will benefit F. mexicanum within the Otay
Ranch Preserve:
a. Focused surveys and population estimates specifically for F.
mexicanum (Otay Ranch 2002, p. 141, 144);
b. Maintenance of existing, high-quality resources through the
prevention of disturbance, including controlling access to the
preserve, prohibiting off-road traffic, enforcing no trespassing rules,
and curtailing activities that degrade resources such as grazing,
shooting, and illegal dumping (Otay Ranch 2002, p. 52);
c. Monitoring of resources to identify changes in the quality and
quantity of sensitive resources and habitat (Otay Ranch 2002, p. 52);
d. Implementation and monitoring of restoration activities as
appropriate (Otay Ranch 2002, p. 53);
e. Trail maintenance (Otay Ranch 2002, p. 53); and
f. Removal and control of exotic species including nonnative plants
and cowbirds (Otay Ranch 2002, p. 53).
As discussed below, we have excluded all private lands within the
Otay Ranch from the final critical habitat designation within Unit 1
for Fremontodendron mexicanum under section 4(b)(2) of the Act because
the benefits of exclusion outweigh the benefits of including these
lands.
Benefits of Exclusion Outweigh the Benefits of Inclusion
We have reviewed and evaluated the current conservation measures in
place on the private lands within Otay Ranch proposed for designation
of critical habitat for Fremontodendron mexicanum and the future
conservation measures as described in the ``Otay Ranch Phase 2 Resource
Management Plan (Otay Ranch 2002. pp. 260).'' We have determined that
these conservation measures provide direct and indirect benefits for F.
mexicanum (see discussion above). We also believe that the partnerships
that we have developed with the landowners and other stakeholders have
made this conservation possible. We believe that the designation of
critical habitat could have a detrimental effect on these important
partnerships and similar future partnerships.
We have worked with several different stakeholders to achieve high
amounts of conservation on Otay Ranch. This large piece of land
provides habitat for many sensitive species, many that do not receive
any legal protection under the Act, and the conservation of this
habitat has been essential to the success of the large scale habitat
conservation planning efforts taking place in southern San Diego
County. Partnerships to conserve private land take years to foster and
it is necessary to build trust between the Federal government and
private land owners. A large part of this trust comes from each partner
following through with its commitments. In this case, the owners of
Otay Ranch have agreed to set aside specific lands for conservation. In
return they will be allowed to develop other areas of their private
land. The area that we proposed for designation as critical habitat is
entirely within the area which is proposed for conservation in the
land-use planning for Otay Ranch; however, we do not want to impose an
additional regulatory burden that could unnecessarily interfere with
these important partnerships. The conservation of this area is already
supported by the open space zoning on this area under the County of San
Diego. As other phases of the Otay Ranch project have been developed
some minor changes have occurred with the open space designations and
conservation easements, but for the most part large areas that would
have otherwise been developed have been conserved and now contribute to
the overall conservation envisioned under the MSCP and Otay Ranch
Specific
[[Page 55003]]
Plan. We have received comments from potential participants expressing
their concern over areas included in the designation of critical
habitat that overlap areas covered by management plans. These potential
participants have suggested that they are not inclined to participate
in such management plans, thus having a negative impact on our ability
to establish new partnerships. The exclusion of these lands from
critical habitat will help preserve the partnerships that we have
developed with the land owners of Otay Ranch and the County of San
Diego and promote the conservation of Fremontodendron mexicanum on
these private lands.
In comparison, the regulatory benefits of including these lands in
critical habitat are minimal. Based on the existing land-use
restrictions and the future conservation and management of these lands
under the Otay Ranch Phase 2 Resource Management Plan, we do not
anticipate Federal activities occurring on these private lands that
could appreciably reduce the conservation value of this habitat for F.
mexicanum. In addition, the educational and overall recovery benefits
of critical habitat designation have largely already been accomplished
in the rulemaking process through informing the public of areas
important for the long-term conservation of Fremontodendron mexicanum.
Such benefits can continue to be achieved through the publication of
materials regarding this species provided on our Web site.
Therefore, we have determined that the benefits of excluding the
identified 133 ac (54 ha) of private land from the critical habitat
designation outweigh the benefits of including these lands in critical
habitat.
Exclusion Will Not Result in Extinction of the Species
Exclusion of these 133 ac (54 ha) of non-Federal lands from the
final designation of critical habitat will not result in the extinction
of Fremontodendron mexicanum because these lands will be permanently
conserved and managed in a manner that clearly benefits this species.
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. Although F. mexicanum
is not a covered species under the MSCP, F. mexicanum was evaluated in
the biological opinion for the MSCP, and we found that implementation
of the plan would not jeopardize this species (Service 1998). The
exclusion of critical habitat leaves these protections unchanged from
those that would exist if these areas were designated as critical
habitat.
Economics
Section 4(b)(2) of the Act allows the Secretary to exclude areas
from critical habitat for economic reasons if it is determined that the
benefits of such exclusion exceed the benefits of designating the area
as critical habitat. However, this exclusion cannot occur if it will
result in the extinction of the species concerned.
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 April 5, 2007 (72 FR 16756). We
accepted comments on the draft analysis until May 7, 2007. A final
analysis of the potential economic effects of the proposed designation
was then developed taking into consideration the public comments and
any new information.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Ceanothus ophiochilus and Fremontodendron mexicanum. The
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 the foreseeable potential economic
impacts of the proposed critical habitat designation and other
conservation-related actions for these species on government agencies
and private businesses and individuals. The economic analysis
identifies potential costs will be $385,000 to $659,000 in undiscounted
dollars over a 20-year period as a result of the proposed designation
of critical habitat, including those costs coextensive with listing and
recovery. Discounted future costs are estimated to be $325,000 to
$559,000 ($22,000 to $38,000 annualized) at a 3 percent discount rate,
or $272,000 to $471,000 ($26,000 to $44,000 annualized) at a 7 percent
discount rate.
The economic analysis considers the potential economic effects of
actions relating to the conservation of Ceanothus ophiochilus and
Fremontodendron mexicanum, including costs associated with sections 4,
7, and 10 of the Act, and including those attributable to the
designation of critical habitat. It further considers the economic
effects of protective measures taken as a result of other Federal,
State, and local laws that aid habitat conservation for C. ophiochilus
and F. mexicanum in areas containing features essential to the
conservation of the species. The analysis considers both economic
efficiency and distributional effects. In the case of habitat
conservation, efficiency effects generally reflect the ``opportunity
costs'' associated with the commitment of resources to comply with
habitat protection measures (such as lost economic opportunities
associated with restrictions on land use).
The analysis also addresses how potential economic impacts are
likely to be distributed, including an assessment of any local or
regional impacts of habitat conservation and the potential effects of
conservation activities on small entities and the energy industry. This
information can be used by decision-makers to assess whether the
effects of the designation might unduly burden a particular group or
economic sector. Finally, this analysis looks retrospectively at costs
that have been incurred since the date Ceanothus ophiochilus and
Fremontodendron mexicanum were listed as endangered and threatened,
respectively (October 13, 1998; 63 FR 54956), and considers those costs
that may occur in the 20 years following a designation of critical
habitat. After consideration of the impacts under section 4(b)(2) of
the Act, we have not excluded any areas from the final critical habitat
designation based on the identified economic impacts.
[[Page 55004]]
A copy of the final economic analysis with supporting documents are
included in our administrative file and may be obtained by contacting
the Carlsbad Fish and Wildlife Office, Branch of Endangered Species
(see ADDRESSES) or by downloading from the Internet at http://www.fws.gov/carlsbad/ carlsbad/.
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order (E.O.) 12866, this document is a
significant rule in that it may raise novel legal and policy issues. On
the basis of our economic analyses of the critical habitat for these
species, we have determined that the final designations of critical
habitat for each species will not have an annual effect on the economy
of $100 million or more or affect the economy in a material way. The
economic analysis identifies potential costs will be $385,000 to
$659,000 in undiscounted dollars over a 20-year period as a result of
the proposed designation of critical habitat, including those costs
coextensive with listing and recovery. Discounted future costs are
estimated to be $325,000 to $559,000 ($22,000 to $38,000 annualized) at
a 3 percent discount rate, or $272,000 to $471,000 ($26,000 to $44,000
annualized) at a 7 percent discount rate. 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 in determining whether to exclude any area from critical
habitat, as provided for under section 4(b)(2). If we determine that
the benefits of excluding a particular area outweigh the benefits of
specifying such area as part of the critical habitat, we may exclude
the area unless we determine, 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. Due to the tight timeline
for publication in the Federal Register, the Office of Management and
Budget (OMB) has not formally reviewed this rule.
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 must 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. SBREFA amended RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities.
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 $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 Ceanothus ophiochilus and Fremontodendron mexicanum. 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 draft economic analysis analyzed the possible impacts to small
entities in the following categories: Development, fire management on
Federal lands, alien plant species management on Federal lands, and
other activities on Federal lands. The economic analysis concluded that
conservation activities would not affect small entities in the above
categories (Service 2007, Appendix A, p. A-1). There are two private
land owners in Riverside County that may need to undertake fire
management activities and/or management of alien plant species. The
economic cost of fire management was estimated at $3,000 to $4,000 per
year and the economic cost of alien plant species management was
estimated at $1,000 to $2,000 per year. It is unclear if these private
landowners qualify as small businesses.
In general, two different mechanisms in section 7(a)(2)
consultations could lead to additional regulatory requirements for
approximately four small businesses, on average, that may be required
to consult with us regarding their project's impact on Ceanothus
ophiochilus and Fremontodendron mexicanum and their 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
[[Page 55005]]
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 adversely
modifying 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 plant species or adversely
modify its critical habitat, 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 develop information that could contribute to the
recovery of the species.
Based on our experience with consultations pursuant to 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(a)(2) 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 they face, as described in the
final listing rule 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) Land management activities, like fire suppression, grazing,
mining, and recreation authorized by the USFS and BLM;
(2) Restoration activities designed to mitigate or repair the
effects of fire suppression; and
(3) Activities related to road use and maintenance authorized or
conducted by USFS, BLM and the Department of Homeland Security.
The most likely Federal involvement could include projects that
require permits to conduct activities on USFS or BLM land. It is likely
that a developer or other project proponent could modify a project or
take measures to protect Ceanothus ophiochilus and Fremontodendron
mexicanum. 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
they face, as described in the final listing rule and proposed critical
habitat designation. 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.
Federal involvement, and thus section 7(a)(2) consultations, would be
limited to a subset of the area designated. Currently, we are unaware
of any small businesses that use the areas designated as critical
habitat for economic purposes. Therefore, based on the above reasoning
and the currently available information, we certify that the rule will
not have a significant economic impact on a substantial number of small
entities. 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 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
(Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) 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
Ceanothus ophiochilus and Fremontodendron mexicanum is not expected to
significantly affect energy supplies, distribution, or use because
there are no existing energy projects within the area designated as
critical habitat for either of these two species. Therefore, this
action is not a significant energy action and no Statement of Energy
Effects is required.
Takings
In accordance with Executive Order 12630 (``Government Actions and
Interference with Constitutionally Protected Private Property
Rights''), we have analyzed the potential takings implications of
designating critical habitat for this rule in a takings implication
assessment. The takings implications assessment concludes that this
final designation of critical habitat does not pose significant takings
implications.
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, or 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
[[Page 55006]]
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
onto 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, a Small Government Agency Plan is
not required.
Federalism
In accordance with Executive Order 13132 (Federalism), the rule
does not have significant Federalism effects. A Federalism assessment
is not required. In keeping with the Department of the Interior 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. Only federal
lands are being designated as critical habitat for Ceanothus
ophiochilus and Fremontodendron mexicanum; therefore, the designation
is unlikely to impact 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(a)(2)
consultations to occur).
Civil Justice Reform
In accordance with Executive Order 12988 (Civil Justice Reform),
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 section 4 of the 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 Ceanothus ophiochilus and
Fremontodendron mexicanum.
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 (NEPA) (42 U.S.C. 4321 et. seq.)
It is our position that, outside the jurisdiction of the Tenth
Federal Circuit, we do not need to prepare environmental analyses as
defined by the NEPA in connection with designating critical habitat
under the Act. We published a notice outlining our reasons for this
determination in the Federal Register on October 25, 1983 (48 FR
49244). This assertion was upheld in the courts of the Ninth Circuit
Court of Appeals (Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir.
Ore. 1995), cert. denied 516 U.S. 1042 (1996).
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 the 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 that were occupied at the time of listing and
that contain the features essential for the conservation of Ceanothus
ophiochilus and Fremontodendron mexicanum, and no Tribal lands that are
unoccupied areas essential for the conservation of the species.
Therefore, critical habitat for Ceanothus ophiochilus and
Fremontodendron mexicanum has not been designated 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 author of this package is 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 ``Ceanothus ophiochilus''
and the entry for ``Fremontodendron mexicanum'' under ``FLOWERING
PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
[[Page 55007]]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
------------------------------------------------------------ Historic range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS
* * * * * * *
Ceanothus ophiochilus.......... Vail Lake ceanothus... U.S.A. (CA)........... Rhamnaceae........... T 648 17.96(a) NA
* * * * * * *
Fremontodendron mexicanum...... Mexican flannelbush... U.S.A. (CA), Mexico... Sterculiaceae........ E 648 17.96(a) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(a) as follows:
0
a. By adding an entry for Ceanothus ophiochilus (Vail Lake ceanothus)
in alphabetical order under family Rhamnaceae;
0
b. By adding Family Sterculiaceae in alphabetical order by family name;
and
0
c. By adding an entry for Fremontodendron mexicanum (Mexican
flannelbush) under Family Sterculiaceae.
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Rhamnaceae: Ceanothus ophiochilus (Vail Lake ceanothus).
(1) Critical habitat units are depicted for Riverside County,
California, on the maps below.
(2) The primary constituent elements (PCEs) of critical habitat for
Ceanothus ophiochilus are the habitat components that provide:
(i) Flat to gently sloping north to northeast facing ridge tops
with slopes in the range of 0 to 40 percent slope that provide the
appropriate solar exposure for seedling establishment and growth.
(ii) Soils formed from metavolcanic and ultra-basic parent
materials and deeply weathered gabbro or pyroxenite-rich outcrops that
provide nutrients and space for growth and reproduction. Specifically
in the areas that Ceanothus ophiochilus is found, the soils are:
(A) Ramona, Cienaba, Las Posas, and Vista series in the Agua Tibia
Wilderness; and
(B) Cajalco series in the vicinity of Vail Lake.
(iii) Chamise chaparral or mixed chamise-ceanothus-arctostaphylos
chaparral at elevations of 2,000 feet to 3,000 feet (610 meters to 914
meters) that provide the appropriate canopy cover and elevation
requirements for growth and reproduction.
(3) Critical habitat does not include man-made 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 map units were created on a base of USGS
1:24,0000 maps, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(5) Unit 1.
(i) Subunit 1B for Ceanothus ophiochilus, Agua Tibia Subunit,
Riverside County, California. From USGS 1:24,000 quadrangles Pechanga
and Vail Lake, lands bounded by the following UTM NAD27 coordinates
(E,N): 499902,3701154; 499909, 3701222; 499950, 3701238; 500022,
3701235; 500060, 3701218; 500091, 3701184; 500127, 3701138; 500158,
3701092; 500191, 3701048; 500226, 3701010; 500247, 3700998; 500262,
3700990; 500273, 3700981; 500294, 3700965; 500326, 3700909; 500351,
3700872; 500353, 3700869; 500362, 3700855; 500375, 3700824; 500398,
3700735; 500400, 3700646; 500370, 3700546; 500308, 3700359; 500293,
3700272; 500173, 3700102; 500057, 3699889; 500008, 3699730; 499990,
3699595; 499988, 3699460; 500022, 3699376; 500045, 3699326; 500113,
3699213; 500179, 3699040; 500199, 3698902; 500173, 3698801; 500010,
3698618; 499966, 3698566; 499920, 3698544; 499823, 3698518; 499757,
3698516; 499704, 3698537; 499671, 3698570; 499655, 3698612; 499671,
3698670; 499783, 3698843; 499834, 3698968; 499840, 3699020; 499840,
3699090; 499819, 3699185; 499755, 3699338; 499731, 3699474; 499757,
3699750; 499838, 3699993; 499974, 3700214; 500037, 3700349; 500055,
3700453; 500063, 3700594; 500033, 3700813; 499984, 3700976; 499924,
3701105; thence returning to 499902, 3701154.
(ii) Map of Unit 1, subunit 1B (Map 1) follows:
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Family Sterculiaceae: Fremontodendron mexicanum (Mexican
flannelbush).
(1) Critical habitat units are depicted for San Diego County,
California, on the maps below.
(2) The primary constituent elements of critical habitat for
Fremontodendron mexicanum are the habitat components that provide:
(i) Alluvial terraces, benches, and associated slopes within 500
feet (152 meters) of streams, creeks, and ephemeral drainages where
water flows primarily after peak seasonal rains with a gradient ranging
from 3 to 7 percent; and stabilized north- to east-facing slopes
associated with steep (9 to 70 percent) slopes and canyons that provide
space for growth and reproduction.
(ii) Silty loam soils derived from metavolcanic and metabasic
bedrock, mapped as San Miguel--Exchequer Association soil series that
provides the nutrients and substrate with adequate drainage to support
seedling establishment and growth.
(iii) Open Cupressus forbesii and Platanus racemosa stands at
elevations of 900 feet (274 meters) to 3,000 feet (914 meters) within a
matrix of chaparral (such as Dendromecon rigida ssp. rigida and Malosma
laurina) and riparian vegetation that provides adequate space for
growth and reproduction.
(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 map units were created on a base of USGS
1:24,000 maps, and critical habitat units were then mapped using
Universal Transverse Mercator (UTM) coordinates.
(5) Unit 1.
(i) Subunit 1A for Fremontodendron mexicanum, Cedar Canyon Subunit,
San Diego County, California. From USGS 1:24,000 quadrangles Dulzura
and Otay Mountain, lands bounded by the following UTM NAD27 coordinates
(E,N): 515014, 3611487; 515155, 3611552; 515695, 3611495; 515848,
3611474; 516142, 3611376; 516372, 3611063; 516368, 3610565; 516091,
3610192; 516251, 3609616; 516229, 3608802; 516080, 3608793; 516038,
3608958; 516013, 3609134; 516008, 3609701; 515493, 3609581; 515407,
3609585; 515418, 3609710; 515497, 3609804; 515663, 3609889; 515878,
3609887; 515904, 3610258; 515952, 3610432; 515921, 3610608; 516125,
3610698; 515989, 3611007; 515889, 3611230; 515567, 3611277; 515159,
3611261; 515064, 3611374; thence returning to 515014, 3611487.
(ii) Map depicting Subunit 1A is located at paragraph (5)(iv) of
this entry.
(iii) Subunit 1B for Fremontodendron mexicanum, Little Cedar Canyon
Subunit, San Diego County, California. From USGS 1:24,000 quadrangles
Dulzura and Otay Mountain, lands bounded by the following UTM NAD27
coordinates (E,N): 512964, 3610810; 513099, 3610671; 513104, 3609924;
513252, 3609684; 513232, 3609584; 513344, 3609302; 513278, 3609139;
513174, 3609122; 512911, 3609699; 512854, 3610125; 512821, 3610402;
512834, 3610662; thence returning to 512964, 3610810.
(iv) Map of Subunits 1A and 1B (Map 2) follows:
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* * * * *
Dated: May 19, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
Editorial Note: This document was received at the Office of the
Federal Register on September 20, 2007.
[FR Doc. 07-4723 Filed 9-26-07; 8:45 am]
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