[Federal Register: February 13, 2008 (Volume 73, Number 30)]
[Rules and Regulations]
[Page 8411-8440]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13fe08-19]
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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 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Berberis nevinii (Nevin's barberry); Final Rule
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2008-0011; 92210-1117-0000-B4]
RIN 1018-AU84
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Berberis nevinii (Nevin's barberry)
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 Berberis nevinii (Nevin's barberry)
under the Endangered Species Act of 1973, as amended (Act). In total,
approximately 6 acres (ac) (3 hectares (ha)) in Riverside County,
California, fall within the boundaries of the final critical habitat
designation.
DATES: This rule becomes effective on March 14, 2008.
ADDRESSES: The final rule, final economic analysis, and map of critical
habitat will be available on the Internet at http://www.regulations.gov and http://www.fws.gov/carlsbad/. Supporting documentation we used in
preparing 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; facsimile 760-431-
5901.
FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S.
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, telephone
760-431-9440 (see ADDRESSES section). 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 development and designation of critical habitat in this final rule.
For additional information on the description, biology, and ecology of
Berberis nevinii, refer to the final listing rule published in the
Federal Register on October 13, 1998 (63 FR 54956), and the proposed
critical habitat rule published in the Federal Register on February 6,
2007 (72 FR 5552).
Species Description and Reproduction
Berberis nevinii is a 3 to 13 foot (ft) (1 to 4 meter (m)) tall
rhizomatous, evergreen shrub in the barberry family (Berberidaceae)
that is endemic to southern California. In both the proposed critical
habitat rule (72 FR 5552; February 6, 2007) and the final listing rule
(63 FR 54956; October 13, 1998) for the species, we reported Berberis
nevinii to be rhizomatous. Some members of the genus Berberis have
underground stems (rhizomes) that give rise to aerial shoots. Some
species have long slender-branched rhizomes while others, including B.
nevinii, have short stout-branched rhizomes. Because aerial stems
commonly arise in this manner, a single genetic individual may appear
to be a dense or diffuse grouping of aerial stems of different age
classes. As mentioned in the Primary Constituent Elements section of
the proposed critical habitat rule, B. nevinii is not known to
reproduce by vegetative means through the process of separation of
rhizomes between groupings of aerial stems, as is the case with some
other members of the genus Berberis (Mistretta and Brown 1989, p. 5;
Boyd 2006, p. 1). According to White (2007, p. 1), the now-extirpated
B. nevinii occurrence in San Timoteo Canyon was likely resprouting from
a large basal burl, similar to what is seen in other chaparral shrub
species. Generally, the term burl is reserved for those more condensed
rounded woody structures that produce aerial stems (e.g., some
Arctostaphylos (Manzanita) species) when plants are older or existing
stems have sustained damage. Various authors have used either of these
terms (burl or rounded woody structures) to refer to the underground
portions of B. nevinii. We will continue to consider the basal
structures that routinely produce new aerial stems as woody rhizomes.
For a detailed description of B. nevinii, please refer to the proposed
critical habitat designation published in the Federal Register on
February 6, 2007 (72 FR 5552) and the final listing rule published in
the Federal Register on October 13, 1998 (63 FR 54956).
In the proposed critical habitat rule (72 FR 5552; February 6,
2007), we discussed the relationship between Berberis nevinii's life
history and wildfire in southern California chaparral (72 FR 5556,
5560). Aerial stems of B. nevinii resprout following fire (Soza and
Fraga 2003, p. 2; Mistretta and Brown 1989, p. 5; USFS 2005, p. 237).
Because B. nevinii fruits appear to be adapted for dispersal by animals
(most likely birds), the accumulation of a seed bank seems unlikely
(White 2007, p. 1). Seed germination rates, even without special
treatment, are high (Mistretta and Brown 1989, p. 5). These life
history features appear to match Keeley's (1991, p. 107) description of
the ``non-refractory seed'' (fire-resister) syndrome (White 2007, p.
1). Shrubs with this life history strategy have seeds that do not
require fire-associated cues for germination and generally recruit into
chaparral in the absence of fire, potentially requiring long fire-free
periods to do so (White 2007, p. 1). This appears to contradict
California Department of Fish and Game's (CDFG) characterization of B.
nevinii as a fire responsive species (CDFG 2005, p. 272). The specific
response of B. nevinii to changes in the natural fire regime (fire
frequency, intensity, or timing) may not be fully understood (63 FR
54964, 54965). Fires that follow abnormally long fire-free periods
likely have more severe impacts to the native occurrences because of
accumulation of standing and downed fuel loads that may cause the fire
to be more destructive and burn at higher temperatures. However, it is
also likely that too-frequent fire could pose a threat to this species
by killing mature, seeding adults and resprouting individuals prior to
seed set or recovery from earlier fires, as well as young plants before
they have reached reproductive age. Furthermore, too-frequent fire can
lead to the conversion of native shrublands to weedy annual grasslands
(D'Antonio and Vitousek 1992, pp. 74-75; White 2007, p. 1).
Species Distribution
In general, Berberis nevinii has a limited natural distribution; it
typically occurs in small stands (less than 20 individuals, and often
only one or two) in scattered locations in Los Angeles, San Bernardino,
and Riverside Counties, California, with the largest native occurrence
(as defined by the California Natural Diversity Database (CNDDB))
consisting of several stands and totaling about 134 individuals to the
south of Vail Lake in Riverside County (Boyd 1987; CNDDB 2007). B.
nevinii typically occurs at elevations from 900 to 2,000 ft (300 to 650
m) (63 FR 54956), but most native occurrences are between 1,400 and
1,700 ft (427 to 518 m) in elevation (Boyd 1987, p. 2; CNDDB 2007). For
a detailed discussion and summary of the distribution of B. nevinii,
please refer to the proposed critical habitat designation published in
the Federal Register on February 6, 2007 (72 FR 5552, please refer to
pages 5554-5556).
In the proposed critical habitat rule (72 FR 5552; February 6,
2007), we inadvertently failed to mention an
[[Page 8413]]
occurrence of Berberis nevinii in Riverside, California, that was known
at the time of listing but is not recorded in the CNDDB (CNDDB 2007).
This occurrence consists of a single plant growing in a granite crevice
on a low hill and is suspected to be of cultivated origin due to its
isolation from known wild occurrences of B. nevinii (White 2001, p.
36). As stated in the proposed rule, we do not believe that single
plant occurrences, which do not exhibit any evidence of reproduction,
are likely to contribute to recovery of this species and, therefore,
are not essential to the conservation of this species. Furthermore, the
conservation role of introduced populations is unknown. We did not
propose to include any occurrences suspected to be of cultivated origin
or any occurrences that supported a single plant. However, we will
continue to explore the potential conservation value of naturalized
occurrences and consider these occurrences in future recovery actions
as appropriate.
As stated in the proposed rule (72 FR 5552; February 6, 2007),
potential habitat within the species' range has been extensively
botanically explored or surveyed (Boyd 1987, p. 3), including potential
habitat on the San Bernardino National Forest (SBNF) in 1988 and 1989,
which yielded no new occurrences (Mistretta 1989, unpaginated; 72 FR
5555). Since publication of the proposed rule, we were informed by the
Cleveland National Forest (CNF) that surveys of potential habitat on
the SBNF have been conducted since 1989, also with negative results.
Recent discoveries of native occurrences of Berberis nevinii have been
limited to individual plants or small stands (Boyd 1987, p. 3; Boyd and
Banks 1995, unpaginated; Soza and Boyd 2000, p. 4), and additional
survey efforts are unlikely to identify new large occurrences of this
species.
Suitable Berberis nevinii habitat may occur in Los Angeles and San
Bernardino counties on or adjacent to the Angeles National Forest (ANF)
in the Liebre Mountains and on the south slope of the San Gabriel
Mountains (Soza and Boyd 2000, p. 4). Specifically in the San Gabriel
Mountains, suitable habitat may occur in the foothills, from Pacoima
Canyon and Lopez Canyon, both adjacent to the San Fernando Valley, and
in canyons in the vicinity of San Antonio Wash near Claremont (Soza
2003, based on expertise of Boyd, Rancho Santa Ana Botanic Garden). In
San Bernardino County, there is potential for suitable habitat in the
Crafton Hills area near Redlands off of National Forest lands and in
Cajon Canyon (erroneously stated to be in the ANF in the proposed rule)
on SBNF lands. In Riverside County, there is potential for suitable
habitat:
(1) On the west side of the San Jacinto Mountains in the vicinity
of Bautista Canyon (Soza 2003, unpaginated; Holtrop 2007, p. 1),
although surveys in these areas have failed to locate any plants to
date (Holtrop 2007, p. 1);
(2) In the area between Kolb Creek and Temecula Creek, south and
east of Vail Lake (e.g., Temecula Creek drainage, the hills between
Temecula Creek and Wilson Creek);
(3) In the canyons draining Big Oak Mountain north of Vail Lake
(Boyd et al. 1989, p. 16; Soza 2003, unpaginated); and
(4) On the northern edge of the Agua Tibia Wilderness in the CNF
straddling Riverside and San Diego counties (Boyd and Banks 1995,
unpaginated; Reiser 2001, unpaginated; Soza 2003, unpaginated).
Previous Federal Actions
As discussed in the proposed rule (72 FR 5552; February 6, 2007),
the Service agreed, as part of a settlement agreement, to submit to the
Federal Register a proposed rule to designate critical habitat, if
prudent, on or before January 30, 2007, and a final rule by January 30,
2008 (72 FR 5556, 5557). We also published a notice of availability
(NOA) of the draft economic analysis (DEA) of the 2007 proposed rule in
the Federal Register on October 17, 2007 (72 FR 58793). In this notice,
we announced revisions to proposed critical habitat subunits 1B, 1D,
and 1E. We revised these subunits based on information received during
the first comment period, as well as data obtained during the
development of the DEA (see Summary of Changes from Proposed Rule
section below for a detailed discussion). This final rule satisfies the
December 21, 2004, settlement agreement with respect to Berberis
nevinii. For a discussion of additional previous Federal actions
involving this species, please refer to the listing rule (63 FR 54956;
October 13, 1998) or the proposed critical habitat rule (72 FR 5552;
February 6, 2007).
Summary of Comments and Recommendations
We requested comments from the public on the proposed designation
of critical habitat for Berberis nevinii during two comment periods.
The first comment period opened on February 6, 2007, the date of
publication of the proposed rule (72 FR 5552), and closed on April 9,
2007. We did not receive any requests for a public hearing during this
comment period. We also requested comments on the proposed rule and DEA
during a comment period that opened on October 17, 2007 and closed on
November 16, 2007 (72 FR 58793). We contacted appropriate Federal,
State, and local agencies; scientific organizations; and other
interested parties and invited them to comment on the proposed rule and
DEA during these two comment periods.
During the first comment period, we received five comments directly
addressing the proposed critical habitat designation: one from a peer
reviewer, one from a Federal agency, one from a local agency, and two
from organizations or individuals. During the second comment period, we
received no comment letters on the proposed critical habitat
designation or DEA. We reviewed all comments received during both
comment periods for substantive issues and new information regarding
the designation of critical habitat for Berberis nevinii, addressed
them in the following summary, and incorporated them into the final
rule as appropriate.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from four 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 a response from one of the
four peer reviewers from which we requested comments.
Peer Reviewer Comments
(1) Comment: After review of personal files, the peer reviewer
concurred with our description of the occurrences of Berberis nevinii
described in the proposed rule and was not aware of any occurrences
outside of the areas described in the proposed rule. However, the
reviewer recommended that the Service review the most current CNDDB and
Consortium of California Herbaria records to identify any additional
occurrences of B. nevinii before publishing the final rule.
Our Response: For the proposed rule, we based our understanding of
the current distribution of Berberis nevinii on the most current
occurrence records in the CNDDB (2006), and utilized the Consortium of
California Herbaria records for information on specific occurrences.
Since publication of the proposed rule, we conducted another search of
the CNDDB database and Consortium records. No new occurrence records
were found from either source. Two separate occurrences, likely
[[Page 8414]]
introduced, were found in Griffith Park in the Hollywood Hills of Los
Angeles County. One was documented with a herbarium specimen
(Consortium of California Herbaria, Berberis nevinii, Soza et al. 1060,
RSA 679741). Based on our review of these information sources and the
fact that the only additional occurrence information received during
the first comment period from this peer reviewer was in reference to a
single, isolated individual likely of cultivated origin, we believe
that we based the proposed and this final designation on the best
available information.
(2) Comment: The peer reviewer commented that he was unable to
critically review the proposed exclusion of critical habitat covered
under the Western Riverside County Multiple Species Habitat
Conservation Plan (MSHCP), but suggested that the Service review his
extensive peer review comments provided on November 3, 2004, on the
proposed exclusion of critical habitat for Atriplex coronata var.
notatior (San Jacinto Valley crownscale) (69 FR 59844; October 6, 2004)
covered under the MSHCP.
Our Response: The content and scope of the reviewer's comments
provided on November 4, 2004, related to the Western Riverside County
MSHCP also are considered applicable to the proposed critical habitat
designation for Berberis nevinii. Per the reviewer's recommendation, we
addressed the specified remarks incorporated by reference in the
submitted peer review regarding the exclusion of critical habitat for
Atriplex coronata var. notatior covered under the MSHCP. These comments
included assertions that: (1) It is important to include a clear,
detailed explanation of the MSHCP, its associated Implementing
Agreement, the Service's formal section 7 consultation for the MSHCP,
and the Service's responsibilities and authority under the MSHCP as
they relate to covered species in the final rule; (2) the Service
failed to provide an adequate basis for the exclusion of lands from the
critical habitat designation and that our decision to do so based on
the MSHCP's ability to protect the taxon's habitat was not adequately
supported; and (3) the rule should include further explanation of how
the designation of critical habitat for B. nevinii may impede
cooperative conservation efforts, such as those implemented by the
MSHCP.
In response to the peer reviewer's concerns regarding the MSHCP and
its associated documents, we have added information to our discussion
of the exclusion of areas occupied by Berberis nevinii covered by the
Western Riverside County MSHCP in this final rule, including a detailed
explanation of the MSHCP and its ability to protect the taxon's habitat
and the Service's responsibilities and authority under the MSHCP as
they relate to covered species (see Relationship of Critical Habitat to
Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of
the Act section below). Also, since the October 6, 2004, proposed
critical habitat designation for Atriplex coronata var. notatior (69 FR
59844), we have revised our discussion of the benefits of including
lands in critical habitat (see Benefits of Designating Critical Habitat
section below) to include a discussion of how designation of critical
habitat may impede cooperative conservation efforts (see Conservation
Partnerships on Non-Federal Lands section below for a detailed
discussion).
(3) Comment: The peer reviewer noted that the map of proposed
critical habitat in the proposed rule did not indicate which lands were
proposed for exclusion and did not indicate land ownership, and
suggested including this information on the map in the final rule.
Our Response: While we did not include a map in the proposed rule
identifying the location of areas that were proposed for exclusion, a
map containing such information was available on our Web site (http://www.fws.gov/carlsbad
) during both public comment periods. We appreciate
the peer reviewer's suggestion, and will consider including maps
identifying areas proposed for exclusion in future proposed critical
habitat rules. It is our practice to only publish maps of designated
critical habitat in final rules.
(4) Comment: The peer reviewer commented that the proposed rule
incorrectly identifies the location of CNDDB Element Occurrence 10 as
``Big Tejunga Wash'' instead of ``Big Tujunga Wash.''
Our Response: We appreciate the correction to the misspelling of
this location in the proposed rule. We made the correction in the
October 17, 2007, notice of availability for the DEA (72 FR 58793)
(please see the Public Comments Solicited section of that notice).
(5) Comment: The peer reviewer provided additional information and
clarification on Berberis nevinii life history, including reproductive
strategy (resprouting, seed banks, seedling recruitment) and its
response to wildfire and overly frequent fire. The reviewer further
commented that B. nevinii is probably not rhizomatous, as described in
the final listing rule and the proposed critical habitat rule, and that
the reported vegetative reproduction in San Timoteo Canyon is probably
from resprouting from a large basal burl, as is often seen in other
chaparral shrubs. The reviewer also provided the Service with updated
information on B. nevinii in the form of a species account (prepared by
the reviewer and dated March 2001) for the Bureau of Land Management's
(BLM) planned section 7 consultation with the Service on its revision
of the South Coast Resource Management Plan.
Our Response: We appreciate the additional information and
clarifications on Berberis nevinii's life history, status and
distribution, and response to wildfire. We have included this
information in this final rule (please see Background and Primary
Constituent Elements sections). The Service considers the reviewer's
use of the term ``burl'' inappropriate in describing the short
rhizomatous structures found in B. nevinii. However, the Service
concedes that often both these terms have been used to describe this
species. The short-branched woody rhizomes that almost always annually
give rise to new aerial stems in this species are unlike the
essentially unbranched rounded burls commonly associated with
Arctostaphylos (Manzanita) and other chaparral taxa. Burls normally
produce new aerial stems from among the myriad of dormant surface buds
only when the existing stems are damaged or of considerable age.
Public Comments
Comments Related to the Western Riverside County MSHCP
(6) Comment: One commenter stated strong support for the
designation of critical habitat for Berberis nevinii, but expressed
concern about the proposed exclusion of over 92 percent of occupied
habitat under the Western Riverside County MSHCP, including the area
with the largest known occurrence of the species. The commenter
questioned the ability of the ``untested'' Western Riverside County
MSHCP to prevent extinction of this species or provide for its
conservation and recovery due to: (1) Uncertain funding mechanisms; (2)
understaffing in agencies involved with implementing the plan; (3) the
complexity of the plan; and (4) the intense development pressure within
the area covered by the plan. The commenter stated that designating
critical habitat in this area would provide a safety net to protect
this endangered plant based on the consultation requirements under
section 7 of the Act. Another commenter expressed concern that the
exclusion of lands within the boundaries of the
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MSHCP would not leave enough land within the critical habitat
designation for B. nevinii to thrive.
Our Response: As discussed in the proposed rule and in this final
rule, we have determined that the physical and biological features
essential to the conservation of Berberis nevinii will be adequately
protected by the Western Riverside County MSHCP and that the exclusion
of lands covered by this regional plan will not jeopardize the
continued existence of the species. The conservation objectives in the
MSHCP for B. nevinii include: (1) Conservation and management of at
least 8,000 ac (3,238 ha) of suitable habitat, including all known
locations for this species in the Vail Lake area; (2) implementation of
specific management and monitoring practices to help ensure the
conservation of B. nevinii in the MSHCP Conservation Area; (3)
maintenance of the physical and ecological characteristics of occupied
habitat; and (4) surveys and other required procedures to ensure
avoidance of impacts to at least 90 percent of suitable habitat
determined important to the long-term conservation of B. nevinii (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). The conservation and management of B. nevinii
habitat as described in the Western Riverside County MSHCP will remove
or reduce known threats to B. nevinii and its habitat, providing for
the survival and recovery of this species.
We consider the regulatory (or consultation) benefit of critical
habitat on these private lands to be low, as these lands may not have a
Federal nexus under which to initiate consultation. Furthermore, any
measures taken on private lands to minimize effects to a plant species
or its habitat are completely voluntary. Under the Implementing
Agreement of the Western Riverside County MSHCP, mandatory conservation
measures provide for conservation of B. nevinii and its habitat. The
MSHCP addresses conservation from a coordinated, integrated perspective
rather than a piecemeal, project-by-project approach as would be
achieved through multiple site-by-site, section 7 consultations
involving critical habitat. Therefore, the Western Riverside County
MSHCP provides a conservation benefit to B. nevinii and the physical
and biological features essential to its conservation above the
regulatory requirements associated with the designation of critical
habitat.
The exclusion of critical habitat does not dismiss or lessen the
value of the Vail Lake and Oak Mountain areas to the overall
conservation of this species. Rather, we believe that the judicious
exclusion of specific areas of non-Federal lands from critical habitat
designations, where we have developed close partnerships with non-
Federal land owners that have resulted in the development of HCPs or
other voluntary conservation plans, can contribute to species recovery
and provide a superior level of conservation than the designation of
critical habitat alone. As described in detail in the Relationship of
Critical Habitat to Habitat Conservation Plan Lands--Exclusions Under
Section 4(b)(2) of the Act section below, we have determined that the
benefits of excluding areas within the Western Riverside County MSHCP
(Subunits 1C, 1D, 1E, and 1F) outweigh the benefits of designating
these lands, and that this exclusion will not result in the extinction
of B. nevinii. Furthermore, we expect that this species will be
conserved and recovered on MSHCP lands and do not believe that the
plant will become restricted solely to designated lands as suggested by
one commenter.
(7) Comment: One commenter supported the proposed exclusion of
private lands within the boundaries of the Western Riverside County
MSHCP plan area from the designation of final critical habitat because
the MSHCP adequately provides for the survival and recovery of the
species. However, this commenter expressed concern about language in
the proposed rule that states that this area will be included in the
final designation of critical habitat if the Secretary determines that
the benefits of including these lands outweigh the benefits of
excluding them. They further stated that under the provisions of the
MSHCP and the associated Implementing Agreement, no critical habitat
for Berberis nevinii should be designated in the MSHCP plan area.
Our Response: We have determined that private lands within the
boundaries of the Western Riverside County MSHCP contain the physical
and biological features essential to the conservation of Berberis
nevinii, and meet the definition of critical habitat (see Criteria Used
to Identify Critical Habitat section below). However, we have also
determined that the benefits of excluding these private lands covered
by the Western Riverside County MSHCP outweigh the benefits of
designating critical habitat in these areas, and that this exclusion
will not result in the extinction of B. nevinii; therefore, we have
excluded all private lands from this final designation (see
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a
detailed discussion). In the proposed rule, we provided an analysis of
the proposed exclusion to allow the public to comment and provide
additional information to be considered in our final exclusion
analysis. We have considered all information provided during both
comment periods in finalizing this exclusion.
Comments Related to Criteria Used To Identify Critical Habitat
(8) Comment: We received a comment that critical habitat should at
a minimum include all known remaining occurrences of the species,
including those with a low number of individuals (less than two) or low
reproductive activity.
Our Response: The Act defines critical habitat as the specific
areas within the geographical area occupied by the species at the time
it is listed on which are found those physical and biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protection, and specific
areas outside the geographical area occupied by the species at the time
it is listed upon a determination by the Secretary that such areas are
essential for the conservation of the species. We believe that our
proposed and final designations accurately describe all specific areas
meeting the definition of critical habitat for Berberis nevinii.
As discussed in the Criteria Used to Identify Critical Habitat
section of the proposed rule and this final rule, we delineated
proposed critical habitat for Berberis nevinii using the following
criteria: (1) Areas occupied by naturally occurring individuals at the
time of listing and areas that are currently occupied by naturally
occurring individuals; (2) occupied areas within the historical range
of the species; (3) areas containing one or more of the primary
constituent elements (PCEs) for this species; and (4) areas currently
occupied by more than two B. nevinii plants that show evidence of
reproduction (i.e., fruits with seed, seedlings, or plants of various
size/age classes) on site. Application of these criteria captures the
physical and biological features that are essential to the conservation
of this species, identified as the species' PCEs laid out in the
appropriate quantity and spatial arrangement. Thus, not all areas
supporting the identified PCEs will meet the definition of critical
habitat.
[[Page 8416]]
We recognize that our designation of critical habitat for Berberis
nevinii does not encompass all known occurrences of this species as
noted by the commenter. As discussed in the proposed rule, for sites
where no information is available on reproduction or size/age class
distribution, we assumed that reproduction had occurred at some point
in the past if multiple B. nevinii plants were present. We also gave
consideration to the ecological uniqueness of sites. Sites meeting
these criteria were included in the proposed designation.
We did not include sites with only one individual or sites with
only two individuals of the same size/age class because this condition
may reflect a lack of successful reproduction and therefore the long-
term viability of these occurrences is questionable. As discussed in
the proposed critical habitat rule, many Berberis nevinii occurrences
consist of very few individuals, and sometimes consist of only one or
two large (presumably old) shrubs that have persisted on a site for
many decades without evidence of reproducing. Because of the lack of
evidence of reproduction for these small occurrences, and the low
reproductive output of mature plants and limited numbers of surviving
juvenile plants in general, we do not consider sites with only one
plant or two plants of the same size/age class to represent an
occurrence that exhibits a measurable degree of reproductive success
that is likely to contribute to the recovery of the species.
As explained in the Primary Constituent Elements section of this
final rule, a self-incompatible pollination system has been suggested
(White 2001, p. 36). Additionally, Berberis nevinii does not appear to
reproduce by vegetative means (Mistretta and Brown 1989, p. 5; Boyd
2006), as is the case with some other members of the genus Berberis.
Therefore, pollen transfers from plants in different occurrences are
likely necessary for reproduction to occur in sites supporting only one
plant or two plants of the same size/age class. The habitat
requirements and home ranges of potential pollinator species relative
to native Berberis occurrences have not been determined; however, the
lack of evidence of reproduction in these small B. nevinii occurrences
suggests that pollination may not be occurring or another biological
constraint is impacting the occurrences. The fact that reproduction has
not been in evidence at these sites in several decades, if at all,
suggests that they may not be viable occurrences over the long term.
Whether or not these occurrences may contribute to recovery of the
species is unknown at this time. We will continue to explore the
potential conservation value of these small occurrences, and consider
these occurrences in future recovery actions as appropriate.
Additionally, we only considered areas occupied by naturally
occurring individuals because we do not know the role that other
occurrences (i.e., plants of cultivated origin or outplanted
individuals originating from another part of the species' range that
have subsequently naturalized to a new site) will play in the
conservation of the species. Only about half of the known Berberis
nevinii individuals found in the field are thought to be naturally
occurring (CNDDB 2007; 63 FR 54958), with the vast majority of these in
the vicinity of Vail Lake and Oak Mountain. As discussed in the
proposed rule, B. nevinii is available in the nursery trade and has
been planted at numerous sites throughout the species' range (Boyd
1987, p. 2; Boyd and Banks 1995, unpaginated; Reiser 2001,
unpaginated). We recognize that naturalized occurrences represent some
of the largest (in terms of number of individuals) and most vigorously
reproducing occurrences of the species, and could potentially play a
role in preserving genetic diversity in B. nevinii. At least one
naturalized occurrence (San Francisquito Canyon) may contain an
individual or descendants of an individual that originated from a
location where B. nevinii no longer occurs (i.e., the San Fernando
Valley). Thus, we will continue to explore the potential conservation
value of naturalized occurrences, and consider these occurrences in
future recovery actions as appropriate.
Although we are not designating all known occurrences of Berberis
nevinii, we believe that our criteria, and therefore the designation,
are adequate to ensure the conservation of this species throughout its
extant range based on the best available information at this time.
(9) Comment: One commenter stated that the proposed designation is
flawed because it does not include unoccupied habitat for recovery, and
that without including some suitable, but unoccupied, habitat (areas
with one or more of the PCEs) in the critical habitat designation to
allow Berberis nevinii to expand its range and promote recovery of the
species, the Service will not be able to meet the Act's recovery goals
and mandate.
Our Response: We have identified areas within the geographical
range of the species that were occupied at the time of listing, contain
the physical and biological features essential to the conservation of
the species, and may require special management considerations or
protection. As described in the Background section, potential habitat
within this species' range has been extensively botanically explored or
surveyed (Boyd 1987, p. 3). Surveys throughout the SBNF and the CNF
have not identified any new occurrences of this species. All recent
discoveries of Berberis nevinii have been limited to individual plants
or small stands (Boyd 1987, p. 3; Boyd and Banks 1995, unpaginated;
Soza and Boyd 2000, p. 4) and additional survey efforts are unlikely to
identify new large occurrences of this species. The long-term viability
of single plant occurrences or small stands where there is no evidence
of reproduction for many decades is questionable, and we do not believe
that these areas will significantly contribute to the long-term
recovery of this species. Furthermore, we do not have specific data
concerning the habitat requirements or reproductive biology of this
species to accurately predict any unoccupied areas where reintroduction
would likely be successful. We designate critical habitat in areas
outside the geographical area presently occupied by the species only
when a designation limited to its present range would be inadequate to
ensure the conservation of the species (50 CFR 424.12(e)). Accordingly,
when the best scientific and commercial data do not demonstrate that
the conservation needs of the species require designation of critical
habitat outside of occupied areas, we will not designate critical
habitat in areas outside the geographical area occupied by the species.
Therefore, consistent with the Act and its implementing regulations, we
are not designating any lands outside the area currently occupied by
the species. We recognize that the designation of critical habitat may
not include all of the habitat that may eventually be determined to be
necessary for the recovery of the species and critical habitat
designations do not signal that habitat outside the designation is
unimportant or may not contribute to recovery.
Comments Related to Federal Lands
(10) Comment: The CNF commented that there is one population of
Berberis nevinii containing six individuals on approximately 7 ac (2.8
ha) of land on the CNF. They further stated that the proposed critical
habitat area mapped by the Service on the CNF (Subunit 1B) was 17 ac
(6.8 ha), but according to CNF survey maps, these six individuals were
[[Page 8417]]
outside the critical habitat map for Subunit 1B as described and mapped
in the February 6, 2007, proposed rule (72 FR 5552, pp. 5577, 5579).
Our Response: We appreciate the correction and have since received
updated locality data from the CNF for the Berberis nevinii occurrence
on CNF lands. We verified that Subunit 1B as described and mapped in
the February 6, 2007, proposed rule (72 FR 5552, pp. 5577, 5579) was
inaccurate, and revised the boundaries of this subunit based on the new
occurrence information provided by CNF. A revised description of
Subunit 1B was published on October 17, 2007, concurrently with the
notice of availability for the DEA (72 FR 58793). Based on follow-up
communication with a CNF botanist (Young 2007) and a June 6, 2006, site
visit by Service biologists (Wallace 2006a), we believe that there are
only five individuals, not six, at this site. To the best of our
knowledge, the final rule correctly describes the B. nevinii occurrence
on the CNF.
(11) Comment: The CNF provided the following changes or
clarifications to information in the proposed rule: Cajon Canyon is
within the SBNF, not the ANF; projects surveys after 1988 and 1989 were
conducted in the SBNF for potential habitat and have also yielded
negative results; potential habitat in the SBNF exists near the Crafton
Hills area and on the west side of the San Jacinto Mountains in the
vicinity of Bautista Canyon, although surveys have failed to locate any
plants in these locations to date.
Our Response: We appreciate the clarification on the location of
Cajon Canyon and the information on survey efforts and potential
habitat on the SBNF. We have revised the text of this final rule to
include this new information (see Background section above).
(12) Comment: The CNF commented that current laws, regulations, and
policies, as well as the current land management plan direction on the
CNF, are adequate to provide for the conservation of the Berberis
nevinii occurrence and its habitat on the CNF. They further stated that
they recently revised their Land Management Plan (LMP) to incorporate
management direction that provides sufficient protection and management
for B. nevinii and its habitat, and that the section 7 consultation on
the revised LMP resulted in the issuance of a non-jeopardy biological
opinion by the Service. Additionally, the Species Management Guide for
B. nevinii (Mistretta and Brown 1989) developed for the ANF was
formally adopted by the CNF in 1992 to direct management of this
species on the CNF. They further commented that there has been no
change in the status and survival potential of this occurrence since
its discovery in 1993; the area's fire history is within the range of
natural variation; and no development or fuel treatments are planned
for this area of the CNF that would affect the species or its habitat.
Furthermore, the CNF also commented that the designation of critical
habitat on CNF lands would not provide any additional benefit to the
conservation of the species or its habitat since all site-specific
projects proposed by the CNF are subject to section 7(a)(2)
consultation with the Service and that the designation would
unnecessarily add to their analysis burden by requiring the CNF to make
a determination of effect regarding critical habitat when consulting
under section 7 of the Act.
Our Response: We have determined that National Forest lands contain
physical and biological features essential to the conservation of
Berberis nevinii, and meet the definition of critical habitat (see
Criteria Used to Identify Critical Habitat section below). We
acknowledge that the revised LMP will benefit B. nevinii and its
habitat. The LMP contains general provisions for species conservation
and suggests specific management and conservation actions that will
benefit this species and the physical and biological features essential
to its conservation. Implementation of the LMP should address known
threats to this species on National Forest lands. As stated above, we
appreciate and commend the efforts of the United States Forest Service
(USFS) to conserve federally listed species on their lands.
The Secretary may exclude an area from critical habitat under
section 4(b)(2) of the Act after taking into consideration the economic
impact, the impact on national security, and any other relevant impact
if he determines that the benefits of such exclusion outweigh the
benefits of designating such area as critical habitat, unless he
determines that the exclusion would result in the extinction of the
species concerned. We have considered the request from the CNF that we
exclude their lands because it would unnecessarily add work in the
future to determine the effect regarding critical habitat for actions
on their lands and the fact that they had already completed
consultation under section 7(a)(2) of the Act on their revised LMP.
Recognizing that the CNF already analyzes the impacts of its proposed
activities on both this species and the habitat, we are unable to
conclude that the benefits of exclusion would outweigh the benefits of
inclusion in this particular instance.
Under the Joint Counterpart Endangered Species Act Section 7
Consultation Regulations published in the Federal Register on December
8, 2003 (68 FR 68254), projects under the National Fire Plan that the
USFS determines are ``not likely to adversely affect'' any listed
species or designated critical habitat do not require any additional
consultation with the Service. Projects within the scope of the
National Fire Plan include projects such as prescribed fire, mechanical
fuels treatments (thinning and removal of fuels to prescribed
objectives), emergency stabilization, burned area rehabilitation, road
maintenance and operation activities, ecosystem restoration, and
culvert replacement actions. Therefore, projects such as restoration,
revegetation, and removal of nonnative species conducted in support of
the National Fire Plan that are not likely to adversely affect
federally-listed species should not add to the USFS' workload or cost
burden by requiring them to conduct a separate analysis and make a
determination of effect on critical habitat when consulting under
section 7 of the Act.
Also, as part of our section 7 consultation with the USFS on the
CNF's LMP, the USFS has already consulted on various activities carried
out on National Forest lands including: roads and trail management;
recreation management; special use permit administration;
administrative infrastructure; fire and fuels management; livestock
grazing and range management; minerals management; and law enforcement.
In our 2005 biological opinion on the LMP, we determined that
implementation of the plan was not likely to jeopardize the continued
existence of B. nevinii. Since critical habitat has not been previously
proposed or designated for this species, it is anticipated that the
consultation with the USFS regarding their current LMP will be
reinitiated. However, because the USFS has already consulted with us on
potential impacts to this species related to the activities outlined in
the LMP, the USFS can supplement its analysis for those activities
already analyzed in the LMP with the additional analysis required for
critical habitat areas. We do not believe that this additional analysis
would place an undue burden on the USFS in this instance.
In conclusion, we are designating National Forest lands that meet
the definition of critical habitat for B. nevinii because we are unable
to
[[Page 8418]]
conclude, based on the general assertions provided by the agency here,
that the benefits of excluding these National Forest lands outweigh the
benefits of their inclusion. We will, of course, continue to consider
on a case-by-case basis in future critical habitat rules whether to
exclude particular Federal lands from such designation when we
determine that the benefits of such exclusion outweigh the benefits of
their inclusion.
Comments Related to the Draft Economic Analysis (DEA)
We did not receive any comments related to the DEA.
Comments From State Agencies
We did not receive any comments from State agencies on this rule.
Summary of Changes from Proposed Rule
In preparing the final critical habitat designation for Berberis
nevinii, we reviewed and considered comments from the peer reviewer and
the public on the proposed designation of critical habitat published on
February 6, 2007 (72 FR 5552). In light of comments received on the
proposed rule and information gathered for the DEA, we reevaluated the
proposed critical habitat boundaries and published revisions to
proposed critical habitat subunits 1B, 1D, and 1E concurrently with the
notice of availability for the DEA (72 FR 58793; October 17, 2007). We
did not receive any comments related to the DEA. This final rule
differs from the proposed designation of critical habitat published on
February 6, 2007 (72 FR 5552), as follows:
(1) In the proposed rule, we based the critical habitat boundary
descriptions on Universal Transverse Mercator (UTM) gridlines set every
328 ft (100 m). These square grids were overlaid on occurrence polygons
determined to be essential to the conservation of the species. Areas
where the occurrence polygon intersected with a grid cell were
retained. Although we used Geographic Information System (GIS) soil and
vegetation data in an effort to ensure that the habitat within the grid
cells containing the occurrence polygons had one or more of the PCEs,
as well as aerial photography to remove areas that did not contain any
of the PCEs, the use of UTM gridlines effectively created an artificial
buffer around the resulting areas we determined to be essential to the
conservation of the species. Therefore, in this final designation, we
have refined the critical habitat boundaries by screen digitizing
habitat polygons using ArcMap, a computer GIS program. Use of this
methodology produced more precise boundaries for areas that we
determined contained the physical and biological features essential to
the conservation of Berberis nevinii. Areas outside of these boundaries
were removed (see the Criteria Used to Identify Critical Habitat
section for a detailed discussion). This method of delineation for
critical habitat reduced the total area of habitat from approximately
361 ac (146 ha) to 173 ac (70 ha). Total area in this final critical
habitat rule is less than what was estimated in the notice of
availability for the DEA (72 FR 58793; October 17, 2007) because the
proposed critical habitat boundaries for subunits 1B, 1D, and 1E in the
DEA were also produced using 100 m grids (see item (3) below).
Therefore, the DEA and final economic analysis (FEA) likely
overestimate the potential economic costs of this critical habitat
designation because this reduction in area is not reflected in either
the DEA or FEA.
(2) We revised the location and boundaries of critical habitat
Subunit 1B (Agua Tibia Mountain Foothills) on the CNF to reflect
updated location information provided by the National Forest. Revised
Subunit 1B is in a new location and encompasses approximately 1 ac (< 1
ha) of Federal land managed by the CNF, rather than a total of 22 ac (9
ha)-17 ac (7 ha) of United States Forest Service (USFS) land and 5 ac
(2 ha) of private land--as originally proposed. Accordingly, we have
revised the subunit to reflect this new information (please refer to
the Proposed Critical Habitat Designation section of this final rule).
(3) We reevaluated areas previously determined to contain the
physical and biological features essential to conservation of Berberis
nevinii in subunits bordering Vail Lake. We removed areas that do not
contain these essential features due to lake-level fluctuations and
recurrent, episodic inundation that has lasted for relatively long
periods of time. These revisions (as described in the October 17, 2007,
notice of availability (72 FR 58793)), along with removing the 328 ft
(100 m) grids as described in item (1) above that further refined these
two subunits, reduced the area meeting the definition of critical
habitat within proposed Subunit 1D (North of Vail Lake) from 22 ac (9
ha) to 5 ac (2 ha) and the area meeting the definition of critical
habitat within proposed Subunit 1E (South of Vail Lake/Peninsula) from
251 ac (102 ha) to 112 ac (45 ha). We are excluding both subunits from
this final designation under section 4(b)(2) of the Act (see the
Relationship of Critical Habitat to Habitat Conservation Plans (HCPs)--
Exclusion Under Section 4(b)(2) of the Act section below for a detailed
discussion).
(4) We made technical corrections and clarifications to some of the
information found in the following sections of the proposed rule:
Background, Primary Constituent Elements, Special Management
Considerations or Protection, Proposed Critical Habitat Designation,
and Exclusions Under Section 4(b)(2) of the Act for Berberis nevinii.
These changes include new information or clarifications on the
distribution of B. nevinii; reproduction strategy and life history;
threats to the species and its habitat, particularly as they relate to
transportation projects and land development; updated descriptions of
the critical habitat units as described above; and a more comprehensive
description of the relationship of critical habitat to the approved
Western Riverside County MSHCP and the exclusion of private lands
covered by this plan.
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
(a) Essential to the conservation of the species and
(b) Which may require special management considerations or
protection; and
(c) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means the use
of all methods and procedures that are necessary to bring any
endangered or threatened species to the point at which the measures
provided under the Act are no longer necessary. Such methods and
procedures include, but are not limited to, all activities associated
with scientific resources management such as research, census, law
enforcement, habitat acquisition and maintenance, propagation, live
trapping, transplantation, and in the extraordinary case where
population pressures within a given ecosystem cannot otherwise be
relieved, may include regulated taking.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies
[[Page 8419]]
carrying out, funding, or authorizing the destruction or adverse
modification of critical habitat. Section 7(a)(2) of the Act requires
consultation on Federal actions that may affect critical habitat. The
designation of critical habitat does not affect land ownership or
establish a refuge, wilderness, reserve, preserve, or other
conservation area. Such designation does not allow the government or
public to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement measures by
private landowners. Where a landowner requests federal agency funding
or authorization for an action that may affect a listed species or
critical habitat, the consultation requirements of section 7(a)(2)
would apply, but even in the event of a destruction or adverse
modification finding, the landowner's obligation is not to restore or
recover the species, but to implement reasonable and prudent
alternatives to avoid destruction or adverse modification of critical
habitat.
For inclusion in a critical habitat designation, the habitat within
the geographical area occupied by the species at the time of listing
must contain the physical or biological features that are essential to
the conservation of the species, and be included only if those features
may require special management considerations or protection. Critical
habitat designations identify, to the extent known using the best
scientific data available, habitat areas that provide essential life
cycle needs of the species (i.e., areas on which are found the PCEs
laid out in the appropriate quantity and spatial arrangement for the
conservation of the species). Under the Act, we can designate critical
habitat in areas outside the geographical area occupied by the species
at the time it is listed as critical habitat only when we determine
that those areas are essential for the conservation of the species.
Section 4 of the Act requires that we designate critical habitat on
the basis of the best scientific and commercial data available.
Further, our Policy on Information Standards Under the Endangered
Species Act (published in the Federal Register on July 1, 1994 (59 FR
34271)), the Information Quality Act (section 515 of the Treasury and
General Government Appropriations Act for Fiscal Year 2001 (Pub. L.
106-554; H.R. 5658)), and our associated Information Quality Guidelines
provide criteria, establish procedures, and provide guidance to ensure
that our decisions are based on the best scientific data available.
They require our 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 we are determining which areas should be designated as
critical habitat, our primary source of information is generally the
information developed during the listing process for the species.
Additional information sources may include the recovery plan for the
species, articles in peer-reviewed journals, conservation plans
developed by States and counties, scientific status surveys and
studies, biological assessments, or other unpublished materials and
expert opinion or personal knowledge.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that critical habitat
designated at a particular point in time may not include all of the
habitat areas that we may later determine are necessary for the
recovery of the species. For these reasons, a critical habitat
designation does not signal that habitat outside the designated area is
unimportant or may not promote the recovery of the species.
Areas that are important to the conservation of the species, but
are outside the critical habitat designations, will continue to be
subject to conservation actions that we and other Federal agencies
implement under section 7(a)(1) of the Act. Areas that support
populations are also subject to the regulatory protections afforded by
the section 7(a)(2) jeopardy standard, as determined on the basis of
the best available scientific information at the time of the agency
action. Federally funded or permitted projects affecting listed species
outside their designated critical habitat areas may still result in
jeopardy findings in some cases. Similarly, critical habitat
designations made on the basis of the best available information at the
time of designation will not control the direction and substance of
future recovery plans, habitat conservation plans (HCPs), or other
species conservation planning efforts if information available at the
time of these planning efforts calls for a different outcome.
Primary Constituent Elements (PCEs)
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas within the
geographical area occupied by the species at the time of listing to
designate as critical habitat, we consider the physical or biological
features essential to the conservation of the species that may require
special management considerations or protection. We consider the
physical or biological features to be the PCEs laid out in the
appropriate quantity and spatial arrangement for the conservation of
the species. The PCEs include, but are not limited to:
(1) Space for individual and population growth and for normal
behavior;
(2) Food, water, air, light, minerals, or other nutritional or
physiological requirements;
(3) Cover or shelter;
(4) Sites for breeding, reproduction, and rearing (or development)
of offspring; and
(5) Habitats that are protected from disturbance or are
representative of the historic, geographical, and ecological
distributions of a species.
We derive the PCEs required for Berberis nevinii from its
biological needs as described below and in the proposed critical
habitat designation published in the Federal Register on February 6,
2007 (72 FR 5552, pp. 5558-5561). Additional information can also be
found in the final listing rule published in the Federal Register on
October 13, 1998 (63 FR 54956).
Space for Growth and Reproduction
Berberis nevinii has a limited natural distribution; it typically
occurs in small stands (less than 20 individuals, and often only one or
two) in scattered locations in Los Angeles, San Bernardino, and
Riverside Counties, California, with the largest native occurrence (as
defined by CNDDB) consisting of several stands and totaling about 134
individuals to the south of Vail Lake in Riverside County (Boyd 1987;
CNDDB 2007). Within these areas, B. nevinii requires appropriate soils,
topography, cover, and drainage within the landscape to provide space,
food, water, air, light, minerals, or other nutritional or
physiological requirements for individual and population growth and
reproduction.
Characterizing Berberis nevinii habitat is difficult due to the
varied soils, bedrock substrates, and topography on which this species
naturally occurs. Additionally, this species is known to tolerate a
wide range of environmental conditions in cultivation (Mistretta and
Brown 1989, p. 6). Berberis nevinii typically occurs at elevations from
900 to 2,000 ft (300 to 650 m) (63 FR 54956), but most native
occurrences are between 1,400 and 1,700 ft (427 to 518 m) in elevation
(Boyd 1987, p. 2; CNDDB 2007). One native occurrence on the Big Oak
Mountain summit north of Vail Lake in Riverside County is at
approximately 2,700 ft (823 m)
[[Page 8420]]
elevation, and scattered naturalized occurrences are found outside the
900-to 2,000-foot (300- to 650-m) elevation range (Boyd 1987, pp. 42,
75; CNDDB 2007). Berberis nevinii has been found in varied topography
from nearly flat sandy washes, terraces, benches, and canyon floors to
gravelly wash margins, steeply-sloped banks of drainages, steep rocky
slopes, ridges, and mountain summits (CNDDB 2007).
Based on 1987 field surveys, native Berberis nevinii occurring on
slopes in Scott Canyon and south of Vail Lake were found in areas with
slopes of 19 to 34 degrees (Boyd 1987, pp. 7, 45, 62, 65, 68). Other B.
nevinii plants occurring on slopes in the Vail Lake and Oak Mountain
area generally occupy slopes of less than 34 degrees, based on Service
GIS data (2006). Introduced (i.e., nonnative) occurrences are known to
grow on steeper slopes (e.g., 40 to 50 degrees) in San Francisquito
Canyon (Boyd 1987, p. 7). Berberis nevinii generally occurs on north,
northeast, or northwest-facing slopes; however, exceptions to this have
been noted, including several occurrences, both native and naturalized,
found on south and west-facing slopes (Boyd 1987, pp. 7, 40, 77; Boyd
et al. 1989, p. 24; Soza and Boyd 2000, p. 22; CNDDB 2007).
Berberis nevinii is found on a variety of soils and bedrock
substrates. Native occurrences appear to be strongly associated with
alluvial soils or soils derived from nonmarine sedimentary based
substrates, especially sandy arkose (sandstone derived from granitic
material) (Boyd 1987, p. 7; Boyd and Banks 1995, unpaginated; Soza and
Boyd 2000, p. 25). Most of the plants at Vail Lake are found in small
stands on Temecula arkose soils around the southern end of the lake,
with scattered individuals in the ``badlands'' to the southeast and
southwest (Boyd and Banks 1995, unpaginated). Several small, isolated
stands on the south flank of Big Oak Mountain are associated with
metasedimentary substrates and springs or seeps (Boyd et al. 1989, p.
14; Soza 2003, unpaginated), and two plants at the Big Oak Mountain
summit occur on heavy adobe or gabbro type soils with high water-
holding capacity formed from metavolcanic geology (Mesozoic basic
intrusive rock) (Soza 2003, unpaginated). The CNF occurrence is found
at the contact between sedimentary (arkose) and metasedimentary
substrates (Boyd and Banks 1995, unpaginated). Berberis nevinii has
also been found growing on Pelona schist outcrops and granitic knolls
(Boyd 1987, p. 7; Soza and Boyd 2000, p. 22).
Overlying occurrence polygons with Natural Resource Conservation
Service soils data, native Berberis nevinii occurrences appear to be
associated with the following soil series:
Riverwash at the Lopez Canyon site in Los Angeles County;
Sandy loam of the Saugus series in Scott Canyon and coarse
sandy loam of the Metz series from the San Timoteo Canyon location in
San Bernardino County; and
At least 17 different soil series in the Vail Lake and Oak
Mountain area in Riverside County, including Monserate sandy loams;
Hanford coarse sandy loams; fine sandy loams of the Arlington and
Greenfield, Pachappa, and Cajalco series; Cajalco rocky fine sandy
loams; rocky loams of the Lodi and Las Posas series; and loams of the
Las Posas, San Timoteo, and San Emigdio series (Service GIS data 2006).
Additional soil series found within mapped B. nevinii occurrences
include gullied land and riverwash primarily south of Vail Lake, and
badlands to the north and southeast of Vail Lake. Occurrences north of
Vail Lake on the south slopes of Big Oak Mountain and its summit are
mapped primarily as Auld clay, 8 to 15 percent slopes; Cajalco rocky
fine sandy loam, 15 to 50 percent slopes, eroded; and Las Posas loam
and rocky loam, 8 to 15 percent slopes, eroded. Based on the revised
location information received during the public comment period, the B.
nevinii site on the CNF south of Vail Lake is now mapped as rough
broken land and Vasalia gravelly sand loam, with 5 to 9 percent slopes
(Service GIS data 2007).
Native occurrences of Berberis nevinii are generally found growing
in well-drained soils, and are known from xeric slopes and rock
outcrops. According to Lenz and Dourley (1981, as cited in Mistretta
and Brown 1989, p. 5), B. nevinii is considered a drought-tolerant
species, but it will also accept large amounts of water in cultivation
without apparent damage. Observations of native occurrences suggest
that, within its general habitat, B. nevinii may be associated with
more mesic microhabitats. Niehaus (1977, p. 2) noted that B. nevinii
occurs mostly at the margins of dry washes in or below the foothill
zone, but is not present in the driest portion of a wash. At some
sites, B. nevinii is associated with species such as Lepidospartum
squamatum (scale-broom) and Prunus ilicifolia (holly-leaved cherry),
which require groundwater (Niehaus 1977, p. 2). Many of the plants in
the Vail Lake area are growing on mesic north- or northwest-facing
slopes. Several stands are in canyons draining the south flank of Big
Oak Mountain and are associated with springs or seepages (Boyd et al.
1989, p. 14). The two plants on the summit of Big Oak Mountain are on
clay soils with a high water-holding capacity. In the late spring and
early summer, this site may receive greater moisture in the form of
condensation from intrusion of marine air (Soza 2003, unpaginated).
Information received by a peer reviewer of the proposed critical
habitat rule appears to support this association with mesic
microhabitats, as it was noted that recruitment of B. nevinii is
typically into relatively mesic chaparral sites (White 2001, p. 36).
Berberis nevinii occurs in association with the following plant
communities: alluvial scrub, cismontane (e.g., chamise) chaparral,
coastal sage scrub, oak woodland, and/or riparian scrub or woodland
(Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 54958; CNPS 2001, p.
96; CNDDB 2007). Native B. nevinii in Lopez Canyon, Scott Canyon, and
San Timoteo Canyon, as well as many of those found in the Vail Lake and
Oak Mountain area, occur within the California Wildlife Habitat
Relationships (CWHR) landcover described as coastal scrub or mixed
chaparral (Service GIS data 2006). Berberis nevinii is occasionally
found in coastal oak woodland in the Vail Lake/Oak Mountain area,
characterized by open to dense stands of the large evergreen Quercus
agrifolia (coast live oak) in close association with surrounding scrub
vegetation (Boyd et al. 1989, p. 7). In the Vail Lake area, this
woodland type is found primarily in sandy washes, benches, and canyons
on north-facing slopes, near ephemeral stream channels, or associated
with springs (Boyd et al. 1989, pp. 7-8). The San Francisquito site,
where B. nevinii has apparently naturalized, also has some coastal oak
woodland, and Q. agrifolia is locally common south of B. nevinii in the
canyon bottom at the Lopez Canyon site (Soza and Boyd 2000, pp. 23,
26). Several stands in the Vail Lake area occur within the CWHR
landcover described as valley foothill riparian, and several
occurrences are also partly characterized as annual grassland (Service
GIS data 2006). The Scott Canyon site is described as having an
abundance of annual grasses (Boyd 1987, pp. 44-48, CNDDB 2007).
Extant, native occurrences of Berberis nevinii are often found in
association with one or more of the following chaparral and coastal
sage scrub species: Eriogonum fasciculatum (California buckwheat),
Artemisia californica (California sagebrush), Adenostoma fasciculatum
(chamise), Rhus ovata
[[Page 8421]]
(sugar bush), R. trilobata (skunkbrush), R. integrifolia
(lemonadeberry), Salvia mellifera (black sage), Sambucus mexicana
(elderberry), Prunus ilicifolia (hollyleaf cherry), Rhamnus crocea
(spiny redberry), and Quercus berberidifolia (scrub oak) (Boyd 1987, p.
2; CNDDB 2007). Several native occurrences are associated with coastal
oak woodland or riparian/alluvial scrub vegetation, such as Quercus
agrifolia, Populus fremontii (Fremont cottonwood), Salix laevigata (red
willow), Platanus racemosa (western sycamore), Baccharis glutinosa
(mule-fat), or Lepidospartum squamatum (CNDDB 2007). Boyd (1987, p. 2)
has noted that certain desert floral elements such as Encelia farinosa
(brittlebush), Chrysothamnus nauseosus (rubber rabbitbrush), Artemisia
tridentata (sagebrush), Chilopsis linearis (desert willow), Yucca
schidigera (Mojave yucca), Opuntia parryi (snake cholla), and Atriplex
canescens (fourwing saltbush) are often characteristic of the general
area and many of the specific sites where B. nevinii occurs in the
vicinity of Vail Lake. The presence of typically desert floral elements
mixing with cismontane chaparral shrubs likely reflects the
transitional nature of these sites between the cismontane area to the
west and the Colorado Desert to the east (Boyd et al. 1989, p. 4). One
native occurrence is on relatively flat clay lenses in an open
grassland area with chaparral nearby. Associated plant species include
Chenopodium californicum (pigweed), Avena fatua (wild oat),
Harpagonella palmeri (Palmer's grappling hook), Plantago erecta
(California plantain), Convolvulus simulans (bindweed), Galium
porrigens (climbing bedstraw), and Delphinium sp. (Larkspur) (Wallace
2006b, p. 1).
Several observers have noted that seedlings and immature Berberis
nevinii tend to occur in areas with some measure of protection, either
in the shade or cover of another plant (Boyd 1987, pp. 77-78; Mistretta
and Brown 1989, p. 10). This suggests the need for some relatively long
fire-free period to allow for canopy growth and the creation of
conditions conducive to germination, establishment, and recruitment of
B. nevinii into chaparral. This idea was also proposed by White (2001,
p. 36) and reiterated in his review of our proposal (White 2007, p. 1).
Boyd et al. (1987, p. 77) noted that mature cultivated individuals were
located in areas exposed to full sunlight, and Reiser (2001,
unpaginated) noted that mature B. nevinii shrubs frequently tower above
associated subshrubs. Based on field observations, seedlings may be
shade tolerant, but that as B. nevinii matures, it may require more
sunlight (Mistretta and Brown 1989, Attachment: ``Report on the
Population and Ecological Data of Mahonia nevinii'' by Joy Nishida, p.
1). A similar shade and sunlight requirement has been noted for several
other resprouting chaparral shrub species, where seedlings and saplings
are found mostly in the shade of other plants and seldom in the open,
but recruitment into the shrub population appears to require the later
development of a canopy gap, such as may be created by a fire event
(Keeley 1992, p. 1,206).
We have little information about pollinators, seed dispersal
mechanisms, or the reproductive biology of this species. Berberis
nevinii has loose clusters of bisexual yellow flowers that open between
March and April, and fleshy, yellowish-red to red berries with plump,
brown seeds that are present from May to July (Wolf 1940, unpaginated;
Munz 1974, p. 245; Neihaus 1977, p. 1; Morris 2006). Species-specific
information on pollinators for B. nevinii is lacking. Native bees in
the following genera have been collected on species of Berberis native
to North America: Andrena, Osmia, Emphoropsis, Synhalonia, Melissodes,
and Ceratina (Krombein et al. 1979, vol. 2, pp. 1796, 1797, 1835, 2032,
2129, 2152, 2168, 2182). These are generalist taxa; however, their
habitat requirements and home ranges relative to the native Berberis
taxa have not been determined. According to the U.S. Department of
Agriculture (2006), native Berberis species ``provide significant
forage for native bees.'' According to Mussen (2002), California's
native Berberis species are ``visited (and probably pollinated) by
honey bees'' (Apis mellifera).
The genus Berberis contains species that are both self-compatible
and self-incompatible (Anderson et al. 2001, p. 227), and while we do
not know if B. nevinii is self-incompatible, we can draw some
conclusions based on observed levels of reproduction, or the lack
thereof, at known occurrences. As noted by the peer reviewer for the
proposed critical habitat rule, several occurrences consist of only a
single plant that has existed for years or decades without reproducing
(Mistretta and Brown 1989), suggesting a self-incompatible pollination
system (White 2001, p. 36). If this is the case, recovery of this
species may require pollen transfers among the occurrences with
demonstrated low reproductive output.
Berberis nevinii does not appear to reproduce by vegetative means
to any great extent if at all (Mistretta and Brown 1989, p. 5; Boyd
2006); in other words, it does not regularly produce clones
(genetically identical direct descendants) that are well separated from
the parent individual through the process of rooting at nodes of
slender elongate rhizomes, as is the case with some other members of
the genus Berberis. According to White (2007, p. 1), the now-extirpated
B. nevinii occurrence in San Timoteo Canyon, previously reported to
reproduce vegetatively, was more likely resprouting from a large basal
burl (refer to previous discussion of this terminology under the
Species Description and Reproduction section above). Because vegetative
reproduction appears to be uncommon, Mistretta and Brown (1989, p. 5)
concluded that perpetuation of the species is likely dependent on its
occasional production of viable seed.
Landscape Ecology and Population Demographics of Berberis Nevinii
Many extant occurrences of Berberis nevinii are associated with
chaparral or coastal sage scrub. Fire is a natural occurrence in
southern California shrublands, and plants occurring in these
vegetation communities are resilient or adapted to these types of
disturbances (Keeley 1991, p. 84; Tyler 1996, p. 2,182). Postfire
regeneration mechanisms among California shrubland species can
generally be described as obligate seeding, obligate sprouting, or
facultative sprouting (Kelly and Parker 1990, p. 114). Mature plants of
obligate seeder species are typically killed by fire, and seeds are the
only means of regeneration. Most have locally dispersed seeds that
persist in the soil seed bank until dormancy is broken by an
environmental stimulus, such as intense heat (Keeley 1991, p. 82).
Plants of obligate sprouter species, on the other hand, are rarely
killed by fire, but rather resprout from roots, lignotubers (burls), or
epicormic buds (Kelly and Parker 1990, p. 114). These species have
seeds that do not require fire for germination, but require fire-free
periods for recruiting new seedlings (Keeley 1991, p. 82). In some
species, postfire regeneration occurs by both sprouts and seeds
(facultative sprouters), and fire-caused mortality is variable, likely
due to characteristics of the individual fire (Kelly and Parker 1990,
p. 114).
Based on additional information received through peer review of the
February 6, 2007, proposed critical habitat rule (72 FR 5552), Berberis
nevinii appears to be an obligate sprouter as defined above, and its
life history matches Keeley's (1991)
[[Page 8422]]
description of the ``fire resister'' or ``nonrefractory seed'' syndrome
(i.e., seeds germinate without fire-associated cues) (White 2007, p.
1). As stated in the proposed rule, B. nevinii resprouts following fire
(Soza and Fraga 2003, p. 2; Sanders 2006, unpaginated; Mistretta and
Brown 1989, p. 5). According to Soza and Boyd (2003, p. 2), Soza (2006,
unpaginated), and the USFS (2005, p. 237), post-fire surveys on ANF and
CNF reported B. nevinii regeneration by resprouting and recruitment
from seeds. However, White (2007, p. 1), did not consider it likely
that these seedlings would survive exposure during early post-fire
years and would die before reaching reproductive maturity.
Because southern California shrublands are adapted to a natural
fire regime, plants within these communities likely require such
conditions for long-term survival (63 FR 54961). Comparison of the
contemporary fire regime in southern California to that of the natural
regime (i.e., pre-fire suppression) shows that fire frequency has
increased in the lower coastal valley and foothill zone, and that high
fire frequencies tend to occur in those areas where high human
densities interface with relatively undeveloped landscape (Keeley et
al. 1999, p. 1,831; Keeley and Fotheringham 2001, p. 1,545; Wells et
al. 2004, p. 147; Keeley 2006, p. 382). However, fire suppression has
kept fires in check so that most stands burn within the range of
natural variation (Keeley 2006, p. 382). Coastal sage scrub and
chaparral have the largest amount of area that has burned multiple
times over the past century and have the highest potential fire
frequencies of all vegetation community types; only coastal sage scrub
clearly shows an increasing trend in area burned over this time period
(Wells et al. 2004, pp. 148, 151).
Berberis nevinii's specific response to altered fire regimes (e.g.,
changes to fire frequency, timing, or intensity) is unknown (63 FR
54961). However, overly frequent fire on the landscape could
potentially kill young B. nevinii before they reach their reproductive
potential and may adversely affect mature B. nevinii (Boyd 1991, pp. 7,
9) by causing repeated resprouting that depletes stored resources
faster than they can accumulate during fire-free periods (White 2007,
p. 1). Repeated burnings over short intervals could eventually lead to
type conversion of chaparral/shrublands to nonnative annual grassland
(Boyd 1991, p. 9; Keeley et al. 1999, p. 1,831). This type conversion
has been observed in areas surrounding urban centers (Keeley 2006, p.
382). As noted above, the presence of a seed bank is inconsistent with
the ``non-refractory seed'' (fire resistor) syndrome considered to be
represented in B. nevinii (White 2007, p. 1); thus, overly frequent
fires are not likely to adversely affect the soil seed bank for this
species, as suggested in the proposed rule to designate critical
habitat (72 FR 5560).
Life history characteristics and population demographics of
Berberis nevinii are largely unknown and unstudied. Berberis nevinii
shrubs are long-lived (>50 years) (Mistretta and Brown 1989, p. 5) with
low reproductive rates due to sporadic production of fertile seed
(Mistretta and Brown 1989, p. 5). It has been suggested that B. nevinii
may be a paleoendemic relic (meaning that its present distribution is a
remnant of a formerly wider distribution) (Reiser 2001, unpaginated),
which could explain its limited (small and widely scattered)
distribution and low reproductive rates in the wild (Soza 2003).
The ability of Berberis nevinii to stump sprout following
disturbance (e.g., fire), as well as its great longevity, may play an
important role in the persistence of the species. As discussed in
Garcia and Zamora (2003, p. 921), there may be a population maintenance
trade-off for long-lived plants between replacement of individuals by
seeding and persistence of established plants. A persistence strategy
may allow plants to survive through unfavorable conditions, potentially
to reproduce again when conditions are more favorable (Garcia and
Zamora 2003, p. 924). As mentioned previously, sexual or vegetative
reproduction appears to be uncommon in many B. nevinii occurrences.
However, because the species is long-lived, intermittent seed
production over the lifespan of a shrub may be more important than
annual seed production for perpetuating the species.
Primary Constituent Elements for Berberis Nevinii
Based on our current knowledge of the life history, biology, and
ecology of Berberis nevinii and the habitat requirements for sustaining
the essential life history functions of the species, we have determined
that B. nevinii requires the PCEs described below:
(1) Low-gradient (i.e., nearly flat) canyon floors, washes and
adjacent terraces, and mountain ridge/summits, or eroded, generally
northeast- to northwest-facing mountain slopes and banks of dry washes
typically of less than 70 percent slope that provide space for plant
establishment and growth;
(2) Well-drained alluvial soils primarily of non-marine sedimentary
origin, such as Temecula or sandy arkose soils; soils of the Cajalco-
Temescal-Las Posas soil association formed on gabbro (igneous) or
latite (volcanic) bedrock; metasedimentary substrates associated with
springs or seeps; and heavy adobe/gabbro-type soils derived from
metavolcanic geology (Mesozoic basic intrusive rock) that provide the
appropriate nutrients and space for growth and reproduction; and
(3) Scrub (chaparral, coastal sage, alluvial, riparian) and
woodland (oak, riparian) vegetation communities between 900 and 3,000
feet (275 and 915 meters) in elevation that provide the appropriate
cover for growth and reproduction.
This final designation is defined for the conservation of the
physical and biological features essential to the conservation of the
species, which support the life history functions of the species,
through the identification of the appropriate quantity and spatial
arrangement of areas containing the PCEs. Some units contain all of
these PCEs and support multiple life processes, while some units
contain only a portion of these PCEs, those necessary to support the
species' particular use of that habitat. Because not all life history
functions require all the PCEs, not all critical habitat units will
contain all the PCEs.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the areas
within the geographical area occupied by the species at the time of
listing contain the physical or biological features essential to the
conservation of the species, and whether these features may require
special management considerations or protection. As stated in the final
listing rule (63 FR 54956, October 13, 1998), threats to the species
and its physical and biological features include urban development,
off-road vehicle use, human recreation (e.g., horseback riding),
highway projects, fire management strategies (suppression measures,
brush clearing) that alter natural fire processes to which native plant
communities are adapted, and the introduction of invasive, nonnative
plants that may compete with Berberis nevinii or contribute to
combustible fuel loads (63 FR 54961). These threats can directly or
indirectly result in the loss, modification, degradation, or
fragmentation of B. nevinii habitat, thereby eliminating or reducing
potential habitat for seed production and germination, seedling
[[Page 8423]]
establishment, plant growth and maturation, and population growth.
Individually or combined, these threats may require special management
considerations or protection of the physical and biological features as
addressed here and in more detail within the individual critical
habitat unit descriptions that follow.
Urbanization, flood control measures, road widening, and habitat
degradation from extensive recreational use have contributed to the
loss of Berberis nevinii habitat and have apparently resulted in the
extirpation of several occurrences, particularly in the San Fernando
Valley of Los Angeles County (63 FR 54961). Urban development is
currently the primary threat to B. nevinii habitat and occurrences in
the vicinity of Vail Lake and Oak Mountain in Riverside County.
Urbanization may destroy, degrade, fragment, or otherwise alter the
topography, soil, and vegetation community structure in ways that make
areas less suitable for B. nevinii. Land grading for residential
development and road projects may affect the topography of the site
(PCE 1); alter soil composition and structure (PCE 2); change
vegetation community composition and structure through clearing or
thinning of vegetation and the introduction of nonnative plants (PCE
3); increase erosion potential (PCE 1 and 2); and change hydrological
(drainage and water infiltration) patterns, thereby decreasing the
quality and extent of available habitat for B. nevinii. Additionally,
urban development within or near B. nevinii habitat may increase the
frequency of fire on the landscape due to increased combustible fuel
loads that may result from the incursion and spread of annual nonnative
grasses and an increased potential for fire ignition.
In the February 6, 2007, proposed rule (72 FR 5552), we focused
primarily on potential indirect impacts of urbanization on Berberis
nevinii habitat and occurrences in the vicinity of Vail Lake and Oak
Mountain (72 FR 5565-5567). Urban development is not expected to
directly impact the known occurrences of B. nevinii on Federal land in
the Vail Lake and Oak Mountain area, although indirect impacts
associated with increased urbanization may occur. On the other hand, B.
nevinii habitat on private land in this area may be subject to some
degree of residential development, as described below in the critical
habitat subunit descriptions (see the Critical Habitat Designation
section of this final rule). However, these private lands are located
within the Criteria Area of the Western Riverside County MSHCP and are
targeted, in whole or in part, for acquisition and inclusion in the
MSHCP Conservation Area as Additional Reserve Lands. Specifically, the
conservation objectives of the MSHCP include conservation and
management of at least 8,000 ac (3,238 ha) of suitable habitat,
including all known locations of B. nevinii in the Vail Lake area (see
the Relationship of Critical Habitat to Habitat Conservation Plan
Lands--Exclusions Under Section 4(b)(2) of the Act section below for a
detailed discussion of the MSHCP).
Recreational activities may also impact the physical and biological
features essential to the conservation of the species by destroying,
degrading, fragmenting, or otherwise altering the topography, soil, and
vegetation community in ways that make areas less suitable for Berberis
nevinii. For example, off-highway vehicle use, hiking, camping,
horseback riding, and recreational facility development in or near B.
nevinii occurrences could alter or destroy surface and subsurface
structure through trampling and clearing or thinning of vegetation (PCE
3), the introduction of nonnative plants (PCE 3), soil disturbance or
compaction (PCE 2), and increased erosion and changes to hydrological
(drainage and water infiltration) patterns that may in turn affect the
topography, soil, and vegetation of the site (PCE 1, 2, and 3).
Activities associated with fire management, such as fuel
treatments, prescribed burns, and wildfire suppression, may also impact
the physical and biological features essential to the conservation of
the species. The creation of fuel breaks, brush clearing or thinning,
and the use of heavy equipment and off-road vehicles for fire
management could physically remove or disturb soils and alter soil
composition (PCE 2), remove or destroy vegetation (PCE 3), increase
erosion, and alter the topography (PCE 1) and hydrologic patterns in or
near Berberis nevinii occurrences. Fire management activities could
facilitate the incursion or spread of invasive, nonnative plants by
potentially dispersing seeds and creating (disturbance) conditions that
increase the competitive edge of nonnative species over native species,
thereby altering the composition of the vegetation community (PCE 3).
As pointed out in the proposed critical habitat rule (72 FR 5552),
vegetation community composition and structure could be altered by fire
management activities such as prescribed fires that are too frequent or
that occur at times of the year atypical of the natural fire regime, or
by fire suppression that allows overgrowth of high canopy cover,
limiting or eliminating plant species that require full or partial sun
from the plant community (72 FR 5563). Berberis nevinii's life history
characteristics indicate that it likely recruits into chaparral during
fire-free periods and may require long intervals between fires for
recruitment and population increases; thus, overly frequent fire is a
substantial and immediate threat to this species (White 2007, p. 1).
While highway projects were identified in the final listing rule
(63 FR 54956, October 13, 1998) and proposed critical habitat rule (72
FR 5552; February 6, 2007) as a threat to Berberis nevinii, we do not
anticipate that this activity will affect designated critical habitat
in the foreseeable future. Specifically, the proposed critical habitat
rule identified the proximity of Highway 79 as a potential threat to
the B. nevinii occurrence and habitat on the CNF (Subunit 1B) in part
due to proposed highway widening and realignment activities (72 FR
5565). However, we no longer anticipate that these activities will
affect Subunit 1B because: (1) There are currently no plans to widen
the portion of State Route 79 closest to Subunit 1B, and (2) the
revised subunit is now more than 525 ft (160 m) south of the highway,
which is far enough away that impacts to the subunit from construction
or widening activities are unlikely.
Based on information provided for the economic analysis, nonnative
Arundo donax (Arundo) and other invasive grasses are present in Subunit
1B, and the CNF anticipates an eradication effort based on the weed
management strategy in the USFS' Revised Land Management Plan for the
Four Southern California National Forests (USFS 2005). Additional
information obtained on water storage at Vail Lake indicates that lake
level fluctuations could affect proposed subunits bordering Vail Lake
(specifically, proposed subunits 1D and 1E). While we revised proposed
critical habitat boundaries for these subunits based on the currently
permitted storage capacity of Vail Lake (see the Criteria Used to
Identify Critical Habitat section in this final rule), fluctuating
water levels that surpass permitted storage levels and lake storage
capacity could still affect Berberis nevinii in subunits that border
Vail Lake. However, the occurrences that are located closest to Vail
Lake have not been inundated or affected by rising water levels and
fluctuations in the recent past (Boyd 2007, p. 1), and we do not
anticipate that any B. nevinii individuals in this area will be
affected.
[[Page 8424]]
Criteria Used To Identify Critical Habitat
Berberis nevinii naturally occurs in small, isolated stands across
its geographic range, with several known occurrences consisting of only
a single large and presumably very old individual. At most sites, there
is little to no evidence of reproduction. The Vail Lake and Oak
Mountain area in western Riverside County has the highest concentration
of native B. nevinii, representing several size (age) classes. Plants
occur in numerous stands scattered throughout the area, with the
largest number of plants located at the south edge of Vail Lake and on
the peninsula protruding into the lake. The long-term conservation of
B. nevinii will depend upon the protection of these core native
occurrences and the maintenance of ecological functions within these
sites.
We delineated critical habitat for Berberis nevinii using the
following criteria: (1) Areas occupied by naturally occurring
individuals of the species at the time of listing and areas that are
currently occupied by naturally occurring individuals; (2) occupied
areas within the historical range of the species; (3) areas containing
one or more of the PCEs for the species; and (4) areas currently
occupied by more than two B. nevinii plants that show evidence of
reproduction (i.e., fruits with seed, seedlings, or plants of various
size or age classes) on site. For sites where there was no information
available on reproduction or size/age class distribution, we assumed
that reproduction had occurred at some point in the past if multiple B.
nevinii plants were present. As discussed below, we also considered the
ecological uniqueness of sites.
We did not include sites with only one individual or sites with two
individuals of the same size/age class because this condition may
reflect a lack of successful reproduction and therefore the long-term
viability of these occurrences is questionable. As discussed in the
proposed critical habitat rule, many Berberis nevinii occurrences
consist of very few individuals, and sometimes consist of only one or
two large (presumably old) shrubs that have persisted on a site for
many decades without evidence of reproducing. Because of the lack of
evidence of reproduction for these small occurrences, and the low
reproductive output of mature plants and limited numbers of surviving
juvenile plants in general, we do not consider sites with only one
plant or two plants of the same size/age class to represent an
occurrence that exhibits a measurable degree of reproductive success
that is likely to contribute to the recovery of the species.
As explained in the Primary Constituent Elements section of this
final rule, a self-incompatible pollination system has been suggested
(White 2001, p. 36). Additionally, Berberis nevinii does not appear to
reproduce by vegetative means (Mistretta and Brown 1989, p. 5; Boyd
2006), as is the case with some other members of the genus Berberis.
Therefore, pollen transfers from plants in different occurrences are
likely necessary for reproduction to occur in sites supporting only one
plant or two plants of the same size/age class. The habitat
requirements and home ranges of potential pollinator species relative
to native Berberis occurrences have not been determined; however, the
lack of evidence of reproduction in these small B. nevinii occurrences
suggests that pollination may not be occurring or another biological
constraint is impacting the occurrences. The fact that reproduction has
not been in evidence at these sites in several decades, if at all,
suggests that they may not be viable occurrences over the long term.
Whether or not these occurrences may contribute to recovery of the
species is unknown at this time. We will continue to explore the
potential conservation value of these small occurrences, and consider
these occurrences in future recovery actions as appropriate.
Whether naturalized occurrences will play a role in conservation of
the species is also unknown. However, the naturalized occurrences
represent some of the largest (in terms of number of individuals) and
most vigorously reproducing occurrences of the species, and could
potentially play a role in preserving genetic diversity. At least one
occurrence supporting naturalized plants (San Francisquito Canyon, Los
Angeles County) may contain an individual or descendents of an
individual that originated from a nearby extirpated occurrence (i.e.,
the San Fernando Valley, Los Angeles County). Thus, we will continue to
explore the potential conservation value of introduced occurrences, and
consider these occurrences in future recovery actions as appropriate.
We are aware of 39 records for Berberis nevinii rangewide
documented by the CNDDB (2007). However, we do not have adequate
information to determine the status of six of these occurrences, as
described in the Criteria Used to Identify Critical Habitat sections of
the proposed rule (72 FR 5552; February 6, 2007, p. 5562), and no
additional information regarding these particular occurrences was
provided to us during the public comment period. We considered 19 of
the CNDDB records for B. nevinii to be extant, native occurrences, and
all of these were known at the time of listing, although each was not
specifically described in the final listing rule (63 FR 54956, October
13, 1998). The majority of the extant, native occurrences are in
Riverside County in the vicinity of Vail Lake and Oak Mountain,
described in the final listing rule as one of the primary geographical
areas occupied by the species. Only six of the CNDDB B. nevinii
occurrences, all in Riverside County in the vicinity of Vail Lake and
Oak Mountain, met our criteria for designating critical habitat. Five
of the six occurrences consist of more than two individuals, and
evidence of reproduction (multiple size/age classes, seedlings, and/or
fruit with seed) is known for three of the occurrences (CNDDB element
occurrences 24, 31, and 38). We do not know if reproduction has
occurred at the other three sites (CNDDB element occurrences 32, 35,
and 36), but we believe that it is possible given that these
occurrences represent some of the largest groupings of the species.
As discussed in the Background section of the proposed rule (72 FR
5552; February 6, 2007), the Western Riverside County MSHCP database
contains 32 records of extant Berberis nevinii occurrences from the
vicinity of Vail Lake and Oak Mountain alone, as well as one record
from the Soboba Badlands (72 FR 5555). However, many of the MSHCP
records overlap and some appear to duplicate CNDDB records. In contrast
to the CNDDB records, the MSHCP records largely do not contain
accompanying data, such as number of plants, origin (native versus
introduced), and habitat associations, making it impossible to
accurately quantify the number of distinct occurrences or plants in
this area (Service 2004, pp. 330-331) or determine the specific
location of many of these occurrences. Therefore, we did not rely on
the MSHCP occurrence records for determining critical habitat, but
rather we sought additional information to clarify these records during
the public comment period. We did not receive any additional
information in this regard.
We evaluated whether geographically peripheral (e.g., Los Angeles
and San Bernardino Counties) native occurrences would fit into our
criteria for identifying critical habitat. Despite the biological
conservation arguments raised by Lesica and Allendorf (1995; pp. 753,
754) to conserve peripheral
[[Page 8425]]
populations, we found that these Berberis nevinii occurrences did not
meet our criteria for designation of critical habitat because they
consisted of very few individuals (often only one) and did not appear
to be reproducing. For example, the Lopez Canyon (CNDDB 2007 element
occurrence 43) and Scott Canyon (CNDDB 2007 element occurrence 5)
occurrences both consist of single large (old) individuals with no
signs of past or current reproduction by seed. The San Timoteo Canyon
occurrence (CNDDB element occurrence 4) has an unknown number of
individuals (potentially only one), and reproduction has likely not
occurred at this site in many decades (Sanders 2006, unpaginated).
We also considered the ecological uniqueness of sites because
occurrences within unique habitats may harbor genetic diversity that
allows for persistence in these areas (Lesica and Allendorf 1995, p.
757). We determined that ecologically unique habitats were essential to
conservation of Berberis nevinii, and we included these areas in
designated critical habitat if they were occupied by more than a single
large (i.e., mature) individual. Areas occupied by only one large
individual represent sites where regeneration is not occurring; thus,
we did not consider these areas to be essential to conservation of the
species.
We also evaluated whether maintaining adjacent unoccupied habitat
or corridors between occurrences may be important to facilitate and
allow for pollen and seed dispersal within and between stands of
Berberis nevinii. Available data indicates that the genus Berberis is
likely pollinated by generalist bee taxa. However, we do not have any
information that suggests a certain quantity of habitat is necessary to
maintain the pollinator species associated with B. nevinii.
We delineated critical habitat unit boundaries in the following
manner:
(1) We identified all areas occupied by the species at the time of
listing or currently occupied by Berberis nevinii using location data
in the CNDDB (2007);
(2) We classified each of these occurrences as to their origin
(native or cultivated), status (extant or extirpated), number of
plants, and evidence of reproduction, where possible;
(3) We determined which occurrences contain the physical and
biological features essential to the conservation of the species using
the criteria described above; and
(4) Using GIS, we overlaid the occurrences identified in number 3
above on aerial imagery and compared the polygon locations for these
occurrences with location information from field surveys to narrow and
refine the location of B. nevinii occurrence polygons. Finally, using
aerial photography, we removed areas that did not contain any of the
PCEs for the species (e.g., aquatic habitat in Vail Lake).
As described in the Summary of Changes from Proposed Rule section
above, in the proposed rule we overlaid 100 m (328 ft) square UTM grids
over all essential habitat to delineate the proposed critical habitat
boundaries and produce UTM coordinates. In this final rule we
delineated critical habitat unit boundaries by screen-digitizing the
habitat polygons that we determined contain the physical and biological
features essential to the conservation of Berberis nevinii. The
delineation of critical habitat boundaries through digitizing habitat
polygons versus applying 328 ft (100 m) square grids over the areas we
determined to be essential to the species reduced the total area from
approximately 361 ac (146 ha), which was an overestimate of the area of
essential habitat, to 173 ac (70 ha), which is the actual area we
determined to be essential to the conservation of the species at the
time of the proposed rule.
When delineating proposed critical habitat, we also tried to remove
areas from proposed subunits near Vail Lake that were identified as
being under water, and therefore did not contain the physical and
biological features (72 FR 5562). We based subunit delineations in the
proposed rule on USGS 1-meter resolution color-balanced, color infrared
aerial photography acquired in May to June 2002 for the Vail Lake area,
western Riverside County. For this final rule, we reevaluated proposed
critical habitat subunits bordering Vail Lake based on updated aerial
photographs and Vail Lake volume data provided by Rancho California
Water District (RCWD) during the development of the economic analysis.
We removed areas along the shoreline from subunits 1D (North of Vail
Lake) and 1E (South of Vail Lake/Peninsula) that do not contain the
physical and biological features required by Berberis nevinii and are
not occupied by the species due to lake-level fluctuations and
recurrent, episodic inundation, sometimes for relatively long periods
of time based on criteria discussed below. We published these revisions
to proposed critical habitat and reopened the comment period in
conjunction with the notice of availability for the DEA, published in
the Federal Register on October 17, 2007 (72 FR 58793).
As discussed in the October 17, 2007 (72 FR 58793) notice of
availability, water levels at Vail Lake can fluctuate greatly,
depending on the amount of local runoff reaching the lake, both within
any given year and annually, frequently exceeding the 2002 water levels
for relatively long periods of time. The RCWD, the entity that owns,
operates, and manages Vail Dam and Vail Lake, has a surface water
storage permit in the lake for up to 40,000 acre-feet (49,339 cubic-
meters) from November 1 to April 30, annually. Thus, we revised
proposed critical habitat boundaries for subunits bordering Vail Lake
based on lake levels at RCWD's permitted storage capacity. This
process, coupled with the removal of the 100 m (328 ft) square grids,
resulted in the removal of approximately 17 ac (7 ha) from proposed
Subunit 1D and approximately 139 ac (56 ha) from proposed Subunit 1E,
leaving approximately 5 ac (2 ha) and approximately 112 ac (45 ha) in
proposed subunits 1D and 1E, respectively.
Water volume in Vail Lake has been known to exceed 40,000 acre-feet
(49,339 cubic-meters), even filling and surpassing lake storage
capacity (50,000 acre-feet (61,674 cubic-meters)) with water flowing
over the spillway. The creation of Vail Lake in 1948 may have resulted
in the loss of some Berberis nevinii individuals; however, the
occurrences that are now located closest to Vail Lake have not been
inundated or affected by rising water levels and fluctuations in the
recent past (Boyd 2007). Thus, the revisions to proposed critical
habitat subunits 1D and 1E are not likely to result in B. nevinii
individuals in this area falling outside the revised subunit
boundaries. These revisions will, on the other hand, more accurately
represent B. nevinii habitat in subunits 1D and 1E.
We are designating critical habitat in areas that contain naturally
occurring Berberis nevinii plants (i.e., not of cultivated origin or
consisting of outplanted individuals). We have determined these areas
were occupied at the time of listing and are the appropriate quantity
and spatial arrangement of areas containing the PCEs to constitute the
physical and biological features essential to the conservation of the
species, which support the life history functions of the species.
When determining the critical habitat boundaries for this final
rule, we made every effort to avoid including developed areas, such as
lands covered
[[Page 8426]]
by buildings, pavement, and other structures, because such lands lack
PCEs for Berberis nevinii. The scale of the maps we prepared under the
parameters for publication within the Code of Federal Regulations may
not reflect the exclusion of such developed lands. Any such lands
inadvertently left inside critical habitat boundaries shown on the map
of this critical habitat rule have been excluded by text in this final
rule. Therefore, a Federal action involving these lands would not
trigger section 7 consultation with respect to critical habitat and the
requirement of no adverse modification, unless the specific action may
affect adjacent critical habitat.
Final Critical Habitat Designation
We are designating one unit with two subunits as critical habitat
for Berberis nevinii. The critical habitat areas identified below
constitute our current best assessment of areas that meet the
definition of critical habitat for B. nevinii. Table 1 outlines the
area determined to meet the definition of critical habitat, including
the areas excluded from the final critical habitat designation, and the
two areas designated as final critical habitat for B. nevinii. 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.
Table 1.--Amount of Land Determined to Meet the Definition of Critical Habitat, Amount of Land Excluded From the Final Critical Habitat Designation, and
Amount of Land Designated Critical Habitat for Berberis nevinii
[Area is displayed in acres (ac) (hectares (ha)), rounded to the nearest whole number. Numbers may not sum due to rounding]
--------------------------------------------------------------------------------------------------------------------------------------------------------
Land meeting the definition of Land excluded from
Critical habitat unit Land ownership by type critical habitat critical habitat Critical habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1. Agua Tibia/Vail Lake:
1A. Big Oak Mountain Summit... BLM....................... 5 ac (2 ha)..................... 0 ac (0 ha)............... 5 ac (2 ha)
1B. Agua Tibia Mountain USFS...................... 1 ac (1 ha)..................... 0 ac (0 ha)............... 1 ac (1 ha)
Foothills.
1C. South Flank Big Oak Private................... 39 ac (16 ha)................... 39 ac (16 ha)............. 0 ac (0 ha)
Mountain.
1D. North of Vail Lake........ Private................... 5 ac (2 ha)..................... 5 ac (2 ha)............... 0 ac (0 ha)
1E. South of Vail Lake/ Private................... 112 ac (45 ha).................. 112 ac (45 ha)............ 0 ac (0 ha)
Peninsula.
1F. Temecula Creek East....... Private................... 11 ac (4 ha).................... 11 ac (4 ha).............. 0 ac (0 ha)
-----------------------------------------------------------------------------------------
Total..................... .......................... 173 ac (70 ha).................. 167 ac (67 ha)............ 6 ac (3 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Section 10(a)(1)(B) of the Act authorizes us to issue permits for
the take of listed animal species incidental to otherwise lawful
activities. An incidental take permit application must be supported by
a habitat conservation plan (HCP) that identifies conservation measures
that the permittee agrees to implement for the covered species to
minimize and mitigate the impacts of the requested incidental take.
Often HCPs also incorporate conservation measures to benefit listed
plant species, although take of plant species is not prohibited under
the Act. We often exclude non-Federal public lands and private lands
that are covered by an existing operative HCP and executed
implementation agreement (IA) under section 10(a)(1)(B) of the Act from
designated critical habitat where we determine that the benefits of
exclusion outweigh the benefits of inclusion as discussed in section
4(b)(2) of the Act. Based on such a determination, we are excluding the
private lands covered under the Western Riverside County MSHCP from the
final designation of critical habitat for Berberis nevinii (see the
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section for a detailed
discussion).
Below, we present a brief description of the areas included in the
final designation and reasons why these areas meet the definition of
critical habitat for Berberis nevinii.
Unit 1: Agua Tibia/Vail Lake
Unit 1 comprises approximately 6 ac (3 ha) and is divided into two
subunits: Big Oak Mountain Summit (1A) and Agua Tibia Mountain
Foothills (1B). The lands in Unit 1 were occupied at the time of
listing, contain the physical and biological features essential to the
conservation of Berberis nevinii, and may be important for maintaining
genetic diversity for the species as they include occurrences in
ecologically unique areas.
Subunit 1A: Big Oak Mountain Summit
Subunit 1A consists of approximately 5 ac (2 ha) of Federal land
managed by the BLM on Big Oak Mountain to the north of Vail Lake in
southern Riverside County. Two Berberis nevinii individuals of
different sizes (ages) occur in this subunit on the summit of Big Oak
Mountain at approximately 2,700 ft (823 m) elevation (i.e., the lower
edge of the marine layer) (PCE 1 and 3). One individual is an old plant
that is covered in lichens, and the other individual is considerably
smaller and at some distance to the northeast of the older plant. This
location is considered unusual (i.e., ecologically unique) for the
species in that it is at higher elevation and on relatively flat clay
lenses consisting of heavy adobe/gabbro type soils with high water-
holding capacity, derived from Mesozoic basic intrusive rock (PCE 2)
(Soza 2003, unpaginated). Soils in this area are classified primarily
as Auld clay, 8 to 15 percent slopes, and Las Posas loam, 8 to 15
percent slopes, eroded (PCE 2) (Service GIS data 2006). This occurrence
is located in an open grassland area with chaparral nearby. Associated
plant species include Chenopodium californicum, Avena fatua,
Harpagonella palmeri, Plantago erecta, Convolvulus simulans, Galium
porrigens, and Delphinium sp.
We are designating this subunit as critical habitat even though it
is occupied by only two Berberis nevinii plants because it represents
an ecologically unique site for the species and contains the physical
and biological features essential to the conservation of B. nevinii.
Additionally, this site contains naturally occurring B. nevinii of
different sizes (ages). Because this occurrence is on an ecologically
unique site, this subunit may be important in terms of preserving
genetic diversity throughout the range of the species. Berberis nevinii
occupied this subunit at the time of listing (63 FR 54956; October 13,
1998).
[[Page 8427]]
Bureau of Land Management land on Big Oak Mountain consists of
three small parcels totaling 888 ac (360 ha) surrounded by private
land. The primary threats to Berberis nevinii habitat in this area are
the indirect effects associated with urban and residential development
on private lands adjacent to BLM lands, such as increased human
recreation; incursion or spread of invasive, nonnative plants; and
changes to the natural fire regime (i.e., increased ignitions and fire
frequency, and shortened fire return intervals that can lead to type
conversion of shrublands to annual grasslands). The BLM Resource
Management Plan indicates that these parcels are closed to motorized
vehicles and livestock grazing (BLM 1994, p. 28). However, special
management considerations or protection for the physical and biological
features may be needed to minimize disturbance to the vegetation and
soils within this subunit; control invasive, nonnative plants; and
maintain the natural hydrologic and fire regime of the area resulting
from urban and residential development.
Subunit 1B: Agua Tibia Mountain Foothills
Subunit 1B consists of approximately 1 ac (< 1 ha) of federally-
owned land managed by the USFS on the CNF near the Agua Tibia
Wilderness Area in southern Riverside County, California. Five Berberis
nevinii individuals are known from this area and are located at the
edge of a stream channel (PCE 1) growing in association with coast live
oak and riparian woodland species (PCE 3). Nearby chaparral includes
such species as Quercus berberidifolia, Adenostoma fasciculatum, and
Haplopappus squarrosus, and nearby desert species include Yucca
schidigera (CNDDB 2007). These B. nevinii plants are growing under a
canopy of Quercus agrifolia and Platanus racemosa with the following
species: Heteromeles arbutifolia, Q. berberidifolia, Elymus
condensatus, Mimulus aurantiacus, Lonicera subspicata, Pterostegia
drymarioides, and Epilobium canum. Soils in this area are classified as
rough broken land and Visalia gravelly sandy loam, with 5 to 9 percent
slopes (PCE 2) (Service GIS data 2007).
We are designating this subunit as critical habitat because it
contains the physical and biological features essential to conservation
of Berberis nevinii and it contains a relatively large natural
occurrence of the species. Additionally, Service personnel visited this
site in June 2006 while B. nevinii was in fruit and found that several
of the fruits had three to four seeds, which may be significant for a
species that appears to rarely set seed. Berberis nevinii occupied this
subunit at the time of listing, as identified in the final listing rule
(63 FR 54956, October 13, 1998).
The Berberis nevinii occurrence on the CNF is not as well protected
as the occurrence on the ANF (USFS 2005, p. 238). The primary threats
to B. nevinii habitat in this area are human recreation (off-highway
vehicle use, shooting); wildland fire, including an increased risk of
fire ignition due to the proximity of State Highway 79 (USFS 2005, pp.
232, 237); fuels and fire management activities (USFS 2005, p. 237);
and invasive, nonnative plants, including potential short-term adverse
effects associated with control efforts (USFS 2005, p. 234). This
occurrence on the CNF burned in 1996 and vigorously resprouted
following the fire (USFS 2005, p. 237). According to the USFS, this
location has shown signs of disturbance from road activities, with
unauthorized use of off-highway vehicles occurring close to, but not
within, the area occupied by the species (USFS 2005, p. 235).
Nonetheless, the magnitude of impacts associated with roads and
recreational activity in this area appears to be low (USFS 2005, p.
238). Also, the USFS does not anticipate substantial camping and
hiking-related impacts to B. nevinii habitat, and intends to avoid or
mitigate these impacts through implementation of Forest Plan standards
(USFS 2005, p. 234).
The February 6, 2007, proposed rule (72 FR 5552) identified the
proximity of Highway 79 as a potential threat to the Berberis nevinii
occurrence and habitat on the CNF, in part due to proposed highway
widening and realignment activities (72 FR 5565). However, we no longer
anticipate that these activities will affect Subunit 1B as there
currently are no plans for widening or realigning Highway 79 in the
section of roadway closest to this subunit. The revised subunit is now
more than 525 ft (160 m) south of the highway. As discussed in the
Special Management Considerations or Protection section above, the
presence of invasive, nonnative plants may impact the B. nevinii
occurrence and habitat at this site. However, the CNF anticipates an
eradication effort of the nonnative Arundo donax and other invasive
grasses (USFS 2005) present in this subunit, which should minimize the
impacts of this threat to the species and its habitat.
One of the greatest threats to occupied habitat on the CNF and the
physical and biological features contained therein is from wildland
fire and the management of fire and fuels (i.e., fire suppression and
prevention activities). This subunit is within the Wildland-Urban
Interface (WUI) Defense Zone (USFS 2005, p. 237; Service 2005, p. 127).
Some plants or habitat within the WUI Defense Zone could be removed or
degraded under the Revised Land and Resource Management Plan due to
fuel removal for fire protection or overly frequent fuel treatments
(Service 2005, p. 127). Special management considerations or protection
of the physical and biological features may be required to minimize
disturbance to the vegetation and soils within this subunit; control
invasive, nonnative plants; and maintain the natural fire regime of the
area.
Subunit 1C: South Flank Big Oak Mountain
We are excluding this subunit from the final designation of
critical habitat under section 4(b)(2) of the Act (Table 1). See the
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a
discussion of this exclusion.
Subunit 1D: North of Vail Lake
We are excluding this subunit from the final designation of
critical habitat under section 4(b)(2) of the Act (Table 1). See the
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a
discussion of this exclusion.
Subunit 1E: South of Vail Lake/Peninsula
We are excluding this subunit from the final designation of
critical habitat under section 4(b)(2) of the Act (Table 1). See the
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a
discussion of this exclusion.
Subunit 1F: Temecula Creek East
We are excluding this subunit from the final designation of
critical habitat under section 4(b)(2) of the Act (Table 1). See the
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a
discussion of this exclusion.
Effects of Critical Habitat Designation
Section 7 Consultation
Section 7(a)(2) of the Act requires Federal agencies, including the
Service, to ensure that actions they fund, authorize, or carry out are
not likely to jeopardize the continued existence of a listed species or
destroy or adversely
[[Page 8428]]
modify designated critical habitat. Decisions by the 5th and 9th
Circuit Courts of Appeals have invalidated our definition of
``destruction or adverse modification'' (50 CFR 402.02) (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 to serve
its intended conservation role for the species.
Under section 7(a)(2) of the Act, 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 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:
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, Federal
agencies may sometimes need to request reinitiation of consultation
with us on actions for which formal consultation has been completed, if
those actions with discretionary involvement or control may affect
subsequently listed species or designated critical habitat.
Federal activities that may affect Berberis nevinii or its
designated critical habitat will require section 7(a)(2) consultation
under 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(a)(1)(B) of the Act) or
involving some other Federal action (such as funding from the Federal
Highway Administration, Federal Aviation Administration, or the Federal
Emergency Management Agency) are examples of agency actions that may be
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
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. Activities that may destroy or
adversely modify critical habitat are those that alter the physical and
biological features to an extent that appreciably reduces the
conservation value of critical habitat for Berberis nevinii. Generally,
the conservation role of B. nevinii critical habitat units is to
support native occurrences of the species in the Vail Lake and Oak
Mountain area, which in combination with occurrences on private land
excluded from critical habitat designation under section 4(b)(2) of the
Act, comprise the core viable natural population(s) of the species.
Section 4(b)(8) of the Act requires us to briefly evaluate and
describe in any proposed or final regulation that designates critical
habitat, 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 Berberis nevinii include, but are not limited to
(please see Special Management Considerations or Protection section for
a more detailed discussion on the impacts of these actions to the
listed species):
(1) Activities that would directly or indirectly impact Berberis
nevinii habitat and its physical and biological features. Such
activities could include, but are not limited to: Residential or
commercial development; fire prevention and suppression activities,
such as the creation of fuel breaks and brush clearing or thinning;
recreation management activities, including managing authorized
recreation and restricting unauthorized recreation through placement of
recreational trailheads, signs, barriers, maps, and/or facilities; off-
road vehicle use; heavy recreational use; road development,
maintenance, or improvement projects, such as road grading, widening,
or realignment; flood control projects, such as vegetation stripping;
and water storage projects that increase the period that habitat is
inundated. These activities could change the physical and biological
features of the habitat by: Affecting the topography of the site;
physically removing or damaging soils and associated vegetation;
altering the natural hydrology of the area; and by introducing and
facilitating the spread of invasive, nonnative plant species.
Additionally, actions to control or eradicate invasive, nonnative
plants may cause temporary direct or indirect adverse impacts to B.
nevinii habitat, although the ultimate outcome may be beneficial by
removing species that compete with B. nevinii and contribute to high
combustible fuel loads.
(2) Activities that would alter fire frequency in areas occupied by
Berberis nevinii. Such activities could include, but are not limited
to, prescribed burns that are too frequent or poorly timed. These
activities could reduce the ability of B. nevinii to grow and reproduce
by altering soil and vegetation community structure and composition
(e.g., type conversion of shrublands into grasslands).
(3) Activities that would foster the introduction or spread of
nonnative vegetation. These activities could include, but are not
limited to: Seeding
[[Page 8429]]
areas with nonnative species following a fire; planting nonnative
species or using non-weed free hay straw for slope, bank, and soil
erosion control; and ground-disturbing activities, such as recreation
management projects and road maintenance, improvement, or construction
projects. These activities could reduce the ability of Berberis nevinii
to grow and reproduce because nonnative plant species may crowd out or
otherwise compete with B. nevinii. Additionally, an increase in
nonnative plants could change the fire regime by creating conditions
prone to frequent fire (e.g., increased fuel loads and continuous fuel
beds) and by altering soil composition.
We consider all of the lands designated as critical habitat for
Berberis nevinii to contain the physical and biological features
essential to the conservation of the species. The two subunits
designated as critical habitat are within the geographic range of the
species, were occupied at the time of listing, and are currently
occupied by B. nevinii. Federal agencies already consult with us on
activities in areas occupied by B. nevinii that may affect the species
to ensure that their actions do not jeopardize the continued existence
of B. nevinii.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
or 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. In the following sections, we address a number
of general issues that are relevant to the exclusions we have
considered.
Benefits of Designating Critical Habitat
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 that may require special management considerations or
protection, and those areas outside the geographical area occupied by
the species at the time of listing that are essential to the
conservation of the species. In identifying those lands, the Service
must consider the recovery needs of the species, such that, on the
basis of the best scientific and commercial data available at the time
of designation, the habitat that is identified, if managed, could
provide for the survival and recovery of the species.
The identification of those areas 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 determine the physical and biological features essential
to the 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 for the conservation of the species. The
designation process includes peer review and public comment on the
identified physical and biological features and essential 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.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on discretionary actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. Federal agencies must also consult with us
on discretionary actions that may affect a listed species and refrain
from undertaking actions that are likely to jeopardize the continued
existence of such species. 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 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. Thus, critical habitat
designations may provide greater regulatory benefits to the recovery of
a species than would listing alone.
There are two limitations to the regulatory effect of critical
habitat. First, a section 7(a)(2) 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
that the conservation role and function of those areas that contain the
physical and biological features essential to the conservation of the
species or of unoccupied areas that are essential for the conservation
of the species are not appreciably reduced. Critical habitat
designation alone, however, does not require property owners to
undertake affirmative actions to promote the 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 the physical and biological features essential to the conservation
of the species, 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.
As stated above, 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
[[Page 8430]]
section 7(a)(2) of the Act, the end result of consultation is to avoid
jeopardy to the species and/or adverse modification of its critical
habitat, but not necessarily to manage critical habitat or institute
recovery actions on critical habitat. Conversely, voluntary
conservation efforts implemented through management plans may institute
proactive actions over the lands they encompass and are often put in
place to remove or reduce known threats to a species or its habitat;
therefore implementing recovery actions. We believe that in many
instances the benefit to a species and/or its habitat realized through
the designation of critical habitat is low when compared to the
conservation benefit that can be achieved through 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, implementation of 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.
Another benefit of including lands in critical habitat is that
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 the affected species. 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
significant public input and may largely duplicate the educational
benefits of a critical habitat designation. Including lands in critical
habitat also would inform State agencies and local governments about
areas that could be conserved under State laws or local ordinances.
Conservation Partnerships on Non-Federal Lands
Most federally listed species in the United States will not recover
without the cooperation of non-Federal landowners. More than 60 percent
of the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002,
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 exclusion of specific areas of non-federally owned lands from
critical habitat designations can contribute to species recovery and
provide a superior level of conservation.
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
The benefits of excluding lands with approved HCPs from critical
habitat designation include relieving landowners, communities, and
counties of any additional regulatory burden that might be imposed by
critical habitat. Many HCPs take years to develop, and upon completion,
are consistent with recovery objectives 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
[[Page 8431]]
of the designation of critical habitat may undermine 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 an additional Federal regulatory burden
sufficient to discourage continued participation in developing plans
targeting listed species' conservation.
A related benefit of excluding lands covered by approved HCPs 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 excluding these lands, we
preserve our current partnerships and encourage additional conservation
actions in the future.
We also note that permit issuance in association with HCP
applications require consultation under section 7(a)(2) of the Act,
which would include the 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.
After considering the following areas under section 4(b)(2) of the
Act, we are excluding approximately 167 ac (67 ha) of non-Federal lands
from the Berberis nevinii critical habitat designation in subunits 1C,
1D, 1E, 1F that are within the Western Riverside County Multiple
Species Habitat Conservation Plan (MSHCP) area. A detailed analysis of
our exclusion of these lands under section 4(b)(2) of the Act is
provided below.
Areas Considered for Exclusion Under Section 4(b)(2) of the Act
At the request of the USFS, we evaluated the appropriateness of
excluding Forest Service lands from the final designation of critical
habitat for Berberis nevinii under section 4(b)(2) of the Act based on
management provided for federally listed species, including B. nevinii,
under the USFS Land Management Plan and the Species Management Guide
for B. nevinii. As discussed in more detail in our response to Comment
12 in the Public Comments section above, we have concluded that the
exclusion of Forest Service lands in this instance does not outweigh
the benefits of their designation. Therefore, as previously discussed,
we are designating approximately 1 ac of Forest Service lands in
subunit 1B as critical habitat for B. nevinii.
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. The
following factors are considered when we evaluate the management and
protection provided by such plans:
(1) Whether the plan is complete and provides for the conservation
and protection of the physical and biological features essential to the
conservation of the species;
(2) Whether there is a reasonable expectation that the conservation
management strategies and actions will be implemented for the
foreseeable future, based on past practices, written guidance, or
regulations; and
(3) Whether 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 MSHCP provides for the conservation of Berberis nevinii and its
physical and biological features. We have determined that the benefits
of excluding essential habitat for B. nevinii covered by this plan,
based on our partnership with private land owners and local, County,
and State jurisdictions, whose commitment to benefiting the species is
evident by the management mandated by the MSHCP, outweighs the benefit
of including these lands in a critical habitat designation. Furthermore
we have determined that exclusion of these lands will not result in the
extinction of B. nevinii.
Western Riverside County Multiple Species Habitat Conservation Plan
(MSHCP)
We are excluding from the final critical habitat designation for
Berberis nevinii all non-Federal lands (approximately 167 ac (67 ha))
covered by the Western Riverside County MSHCP under section 4(b)(2) of
the Act. The non-Federal lands that we are excluding include:
Approximately 39 ac (16 ha) of private lands on the south flank of Big
Oak Mountain (Subunit 1C); approximately 5 ac (2 ha) of private lands
directly north of Vail Lake (Subunit 1D); approximately 112 ac (45 ha)
of private lands to the south of Vail Lake and on the Vail Lake
peninsula, which is the area with the largest known occurrence of B.
nevinii (Subunit 1E); and approximately 11 ac (4 ha) of private lands
north of Temecula Creek and southeast of Vail Lake (Subunit 1F).
The MSHCP is a large-scale, multi-jurisdictional HCP encompassing
1.26-million ac (510,000 ha) in Western Riverside County. The MSHCP
addresses 146 listed and unlisted ``covered species,'' including
Berberis nevinii. Participants in the Western Riverside County MSHCP
include 14 cities in Western Riverside County; the County of Riverside,
including the Riverside County Flood Control and Water Conservation
Agency (County Flood Control), Riverside County Transportation
Commission, Riverside County Parks and Open Space District, and
Riverside County Waste Department; California Department of
[[Page 8432]]
Parks and Recreation; and the California Department of Transportation
(Caltrans). The Western Riverside County 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 an incidental
take permit (TE-088609-0) under section 10(a)(1)(B) of the Act to 22
permittees under the MSHCP for a period of 75 years.
The Western Riverside County 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
existing natural and open space areas designated by the MSHCP as
Public-Quasi-Public (PQP) lands. These PQP lands include those under
Federal ownership, primarily managed by the USFS and BLM, and also
permittee-owned open-space areas (e.g., State Parks, County Flood
Control, and County Park lands). In this final rule, we are designating
as critical habitat Federally-owned PQP lands. Collectively, the
Additional Reserve Lands and PQP lands form the overall MSHCP
Conservation Area in which ``covered species,'' including Berberis
nevinii, will be protected. 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 of
a Conceptual Reserve Design within the bounds of a 310,000 ac (125,453
ha) ``Criteria Area'' that is interpreted as implementation of the
MSHCP proceeds.
All private lands that we are excluding from the final critical
habitat designation under section 4(b)(2) of the Act are within the
MSHCP's Criteria Area and are targeted for inclusion within the MSHCP
Conservation Area as potential Additional Reserve Lands. In addition to
the lands we have determined to be essential to the conservation of the
species, conservation objectives in the MSHCP for Berberis nevinii
provide for conservation and management of at least 8,000 ac (3,238 ha)
of suitable habitat (defined as chaparral and Riversidean alluvial fan
sage scrub between 984 and 2,162 ft (300 and 659 m) in elevation) in
the Vail Lake area. As discussed in the Background section of the
proposed rule (72 FR 5552; February 6, 2007), we were unable to
accurately quantify the exact number of B. nevinii occurrences or
plants within the MSHCP Plan Area (72 FR 5555). Nevertheless, all
essential habitat within the MSHCP area are either within existing PQP
lands or proposed Additional Reserve Lands. The goal of the MSHCP is to
conserve all known locations of B. nevinii in the Agua Tibia/Vail Lake
area and the Soboba Badlands, which includes all areas and features
that we have determined to be essential to the conservation of the
species (Dudek 2002, p. 9-117, Table 9-2).
Furthermore, all private lands that we are excluding from final
critical habitat designation are within the MSHCP's Survey Area and
will receive conservation benefits under the Additional Survey Needs
and Procedures policy. The MSHCP requires surveys for Berberis nevinii
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 overall conservation objectives for the species
have been met. Therefore, new occurrences that are found as a result of
survey efforts and are subsequently determined to be important to the
overall conservation of the species may be included in the Additional
Reserve Lands.
Numerous processes are incorporated into the MSHCP that allow for
Service oversight of MSHCP implementation. These processes include:
Annual reporting requirements; joint review of projects proposed within
the Criteria Area; participation on the Reserve Management Oversight
Committee; and a Reserve Assembly Accounting Process. The Reserve
Assembly Accounting Process will be implemented to ensure that the
conservation of lands occurs in rough proportionality to development,
that lands are assembled in the configuration as generally described in
the MSHCP, and that conservation goals and objectives are being
achieved (Service 2004, pp. 19-26). The Service is also responsible for
reviewing Determinations of Biologically Equivalent or Superior
Preservation that are proposed under the Protection of Species
Associated with Riparian/Riverine Areas and Vernal Pools policy and for
reviewing minor amendment projects for consistency with the
requirements of the MSHCP (Service 2004, pp. 19-26).
As stated in the final listing rule (63 FR 54956, October 13,
1998), threats to the species and its habitat include urban
development, off-road vehicle use, human recreation (e.g., horseback
riding), highway projects, fire management strategies (suppression
measures, brush clearing) that alter natural fire processes, and the
introduction of invasive, nonnative plants that may compete with
Berberis nevinii or contribute to combustible fuel loads (63 FR 54961).
As described above, the MSHCP provides enhancement of habitat by
removing or reducing threats to this species and the physical and
biological features essential to the conservation of the species. This
MSHCP preserves habitat that supports identified core populations of
this species and, therefore, provides for recovery of this species.
Benefits of Exclusion Outweigh the Benefits of Inclusion
As discussed in the Benefits of Designating Critical Habitat
section and in the Service Response to Comment 6 above, we believe that
the regulatory benefit of designating critical habitat on private lands
covered by the Western Riverside County MSHCP would be low and may
hinder the effective implementation of the plan. The Western Riverside
County MSHCP addresses conservation issues from a coordinated,
integrated perspective and will achieve better Berberis nevinii
conservation than would be achieved through multiple site-by-site,
project-by-project, section 7 consultations involving consideration of
critical habitat. Furthermore, biological opinions for plants do not
include an incidental take statement and, therefore, contain no
mandatory reasonable and prudent measures issued to minimize the effect
of any predicted loss of plants. Any measures taken to minimize effects
to the plant species or its habitat are voluntary. The Western
Riverside County MSHCP provides for the proactive monitoring and
management of conserved lands (as previously described), reducing known
threats to the B. nevinii and its habitat.
Conservation and management of Berberis nevinii habitat is
essential to the survival and recovery of this species. Such
conservation needs are typically not addressed through the application
of the statutory prohibition on adverse modification or destruction of
critical habitat. The Western Riverside County MSHCP provides as much
or more conservation benefit to the species than a consultation for
critical habitat designation conducted under the standards required by
the Ninth Circuit in the Gifford Pinchot decision. Furthermore,
educational benefits that may be derived from a critical habitat
designation are low in
[[Page 8433]]
this case and largely redundant to the educational benefits achieved
through the significant public, State, and local government input
solicited and received during the development of the Western Riverside
County MSHCP.
We have developed close partnerships with the 22 MSHCP permittees
through the development of this regional HCP that incorporates
appropriate protections and management of the physical and biological
features essential to the conservation of this species. Those
protections are consistent with the mandates under section 7 of the Act
to avoid adverse modification or destruction of critical habitat and go
beyond that prohibition by including active management and protection
of essential habitat areas. By excluding these lands from designation,
we are eliminating a largely redundant layer of regulatory review for a
limited set of projects on non-Federal lands that are addressed by the
MSHCP, and we are helping to preserve our ongoing partnerships with the
permittees and encouraging new partnerships with other landowners and
jurisdictions. Those partnerships, and the landscape level, multiple-
species conservation planning efforts they promote, are critical for
the conservation of Berberis nevinii. Designating critical habitat on
non-Federal lands within the Western Riverside County MSHCP could have
a detrimental effect to our partnerships with the 22 MSHCP permittees
and could be a significant disincentive to the establishment of future
partnerships and HCPs with other partners.
We have reviewed and evaluated the exclusion of 167 ac (67 ha) of
non-Federal lands that meet the definition of critical habitat within
the Western Riverside County MSHCP plan area from the designation of
final critical habitat for Berberis nevinii and have determined that
the benefits of excluding these lands in subunits 1C, 1D, 1E, and 1F
outweigh the benefits of including them. As discussed above, the MSHCP
will provide for significant preservation and management of the
physical and biological features essential to B. nevinii and will help
reach the recovery goals for this species.
Exclusion Will Not Result in Extinction of the Species
In keeping with our analysis and conclusion detailed in our
biological opinion for the Western Riverside County MSHCP (Service
2004, p. 334), we do not believe that the exclusion of non-Federal
lands that meet the definition of critical habitat within the Western
Riverside County MSHCP plan area from the final designation of critical
habitat for Berberis nevinii will result in the extinction of the
species. The MSHCP provides protection and management, in perpetuity,
of lands within subunits 1C, 1D, 1E, and 1F, including the physical and
biological features essential to the conservation of B. nevinii. In
addition, the jeopardy standard of section 7 of the Act and routine
implementation of conservation measures through the section 7 process
also provide assurances that the species will not go extinct.
Economic Analysis
Section 4(b)(2)of the Act requires us to designate critical habitat
on the basis of the best scientific information available and to
consider economic and other relevant impacts of designating a
particular area as critical habitat. Section 4(b)(2) of the Act allows
the Secretary to exclude areas from critical habitat for economic
reasons if the Secretary determines 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 (dated
September 4, 2007) was made available for public review between October
17, 2007 and November 16, 2007 (72 FR 58793). We did not receive any
public comments related to the draft economic analysis. A final
analysis of the potential economic effects of the designation was
developed taking into consideration any relevant new information.
The primary purpose of the economic analysis is to estimate the
potential economic impacts associated with the designation of critical
habitat for Berberis nevinii. This information is intended to assist
the Secretary in making decisions about whether the benefits of
excluding particular areas from the designation outweigh the benefits
of including those areas in the designation. This economic analysis
considers the economic efficiency effects that may result from the
designation, including habitat protections that may be co-extensive
with the listing of the species. It also addresses distribution of
impacts, including an assessment of the potential effects on small
entities and the energy industry. This information can be used by the
Secretary to assess whether the effects of the designation might unduly
burden a particular group or economic sector.
The economic 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, section 7 consultations under the jeopardy standard, local
zoning laws, State and natural resource laws, and enforceable
management plans and best management practices applied by other State
and Federal agencies.
Potential costs associated with invasive, nonnative plant species
management, recreation management, fire management, and section 7
consultations comprised all of the quantified impacts in the areas we
are designating as critical habitat. The Federal government is expected
to bear the entire cost of the anticipated upper-bound future impacts,
with the following anticipated split among agencies: BLM, 61 percent;
USFS, 35 percent; Service, 4 percent. Similarly, we anticipate that
Subunit 1A (Big Oak Mountain Summit), which is managed by BLM, will
account for the majority (62 percent) of the total upper-bound future
conservation impacts.
Potential costs associated with changes to the management of Vail
Lake comprised the majority of the total quantified upper-bound future
impacts in areas we are excluding from the designation of critical
habitat under section 4(b)(2) of the Act. This cost would have been
borne entirely by Rancho California Water District (RCWD), the entity
that manages Vail Lake, and is based on the scenario that RCWD would
not be able to implement the preferred alternative (Hybrid 1
Alternative) of their Regional Integrated Resources Plan, which calls
for additional water storage in Vail Lake so as to cost-effectively
meet the future municipal and agricultural demands of customers. Other
impacts in areas excluded from the final designation of critical
habitat were based on the costs of acquisition, management, biological
monitoring, and administration of land to be acquired under the Western
Riverside County MSHCP, or impacts associated with development
opportunities on private land within the Plan Area for the MSHCP.
We estimated potential economic effects of actions related to the
conservation of Berberis nevinii under sections 4, 7, and 10 of the Act
and those attributable to designating critical habitat to be
approximately $169,000 to $172,000 in undiscounted dollars over the
next 20 years in areas we are designating as final critical habitat
(subunits 1A and 1B). Discounted future costs were estimated to be
[[Page 8434]]
approximately $136,000 to $139,000 ($10,000 annualized) at a 3 percent
discount rate or approximately $107,000 to $110,000 ($11,000
annualized) at a 7 percent discount rate for activities in subunits 1A
and 1B. We estimated potential economic effects to be approximately
$1.7 to $433.5 million in undiscounted dollars over the next 20 years
(or 40 years for impacts related to management of Vail Lake) in areas
we are excluding from final critical habitat under section 4(b)(2) of
the Act based on the Western Riverside County MSHCP (Subunits 1C
through 1F). Discounted future costs were estimated at approximately
$1.2 to $232.5 million at a 3 percent discount rate ($82,000 to $10.1
million annualized) or approximately $0.9 to $118.1 million at a 7
percent discount rate ($81,000 to $8.9 million annualized) for
activities in subunits 1C, 1D, 1E, and 1F. The latter impacts would
only occur if the areas we proposed for exclusion were instead
designated as critical habitat for B. nevinii. Note that these cost
estimates were based on revisions to the proposed designation of
critical habitat subunits 1B, 1D, and 1E as described in the notice of
availability for the DEA published on October 17, 2007 (72 FR 58793).
The Service also completed a final economic analysis (FEA) of the
designation of critical habitat for Berberis nevinii that updates the
DEA by removing impacts that were not considered probable or likely to
occur and by adding an estimate of the costs associated solely with the
designations of critical habitat for B. nevinii (incremental impacts).
The FEA estimates that the potential economic effects of actions
relating to the conservation of B. nevinii, including costs associated
with sections 4, 7, and 10 of the Act, and including those attributable
to the designation of critical habitat, will be $1.80 million
(undiscounted) over the next 20 years. The present value of these
impacts, applying a 3 percent discount rate, is $1.34 million; or $0.95
million, using a discount rate of 7 percent. This is a reduction from
the impacts estimated in the DEA of about $0.15 million (undiscounted)
over the next 20 years. The FEA also estimates total costs attributable
solely to the designation of critical habitat for B. nevinii
(incremental costs) to be $3,593 (present value at a three percent
discount rate). When critical habitat for this species is designated,
it is anticipated that the consultation with the USFS regarding their
current Land Management Plan will be reinitiated, resulting in
administrative impacts to the USFS. After consideration of the impacts
under section 4(b)(2) of the Act, we have not excluded any areas from
the final critical habitat designations based on the identified
economic impacts.
The final economic analysis is available at http://www.regulations.gov and http://www.fws.gov/carlsbad or upon request
from the Carlsbad Fish and Wildlife Office (see ADDRESSES section).
Required Determinations
Regulatory Planning and Review
In accordance with Executive Order 12866 (E.O. 12866), we evaluate
four parameters in determining whether a rule is significant. If any
one of the following four parameters are met, the Office of Management
and Budget (OMB) will designate that rule as significant under E.O.
12866:
(a) The rule would have an annual economic effect of $100 million
or more or adversely affect an economic sector, productivity, jobs, the
environment, or other units of the government;
(b) The rule would create inconsistencies with other Federal
agencies' actions;
(c) The rule would materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients;
or
(d) The rule would raise novel legal or policy issues. If OMB
requests to informally review a rule designating critical habitat for a
species, we consider that rule to raise novel legal and policy issues.
Because no other Federal agencies designate critical habitat, the
designation of critical habitat will not create inconsistencies with
other agencies' actions. We use the economic analysis of the critical
habitat designation to evaluate the potential effects related to the
other parameters of E.O. 12866 and to make a determination as to
whether the regulation may be significant under parameter (a) or (c)
listed above.
Based on the economic analysis of the critical habitat designation,
we have determined that the designation of critical habitat for
Berberis nevinii will not result in an annual effect on the economy of
$100 million or more or affect the economy in a material way. Based on
previous critical habitat designations and the economic analysis, we
believe this rule will not materially affect entitlements, grants, user
fees, loan programs, or the rights and obligations of their recipients.
OMB has not requested to informally review this rule, and thus this
action does not raise novel legal or policy issues. In accordance with
the provisions of E.O. 12866, this rule is not considered significant.
Executive Order 12866 directs Federal agencies issuing regulations
to evaluate regulatory alternatives (Office of Management and Budget,
Circular A-4, September 17, 2003). Under Circular A-4, once an agency
determines that the Federal regulatory action is appropriate, the
agency must consider alternative regulatory approaches. Because the
determination of critical habitat is a statutory requirement under the
Act, we must evaluate alternative regulatory approaches, where
feasible, when issuing a designation of critical habitat.
In developing our designations of critical habitat, we consider
economic impacts, impacts to national security, and other relevant
impacts under section 4(b)(2) of the Act. Based on the discretion
allowable under this provision, we may exclude any particular area from
the designation of critical habitat providing that the benefits of such
exclusion outweigh the benefits of specifying the area as critical
habitat and that such exclusion would not result in the extinction of
the species. We believe that the evaluation of the inclusion or
exclusion of particular areas, or a combination of both, constitutes
our regulatory alternative analysis for designations.
Regulatory Flexibility Act (5 U.S.C. 601 et seq.)
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., 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 effects of the rule on small entities (small businesses,
small organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of the agency
certifies 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 statement of the factual basis for
certifying that the rule will not have a significant economic impact on
a substantial number of small entities. In this final rule, we are
certifying that the critical habitat designation for Berberis nevinii
will not have a significant economic impact on a substantial number of
small entities. The following discussion explains our rationale.
According to the Small Business Administration (SBA), small
entities
[[Page 8435]]
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 Berberis nevinii (see Section 7 Consultation section). 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
(see Application of the ``Adverse Modification'' Standard section).
The FEA examined the potential for Berberis nevinii conservation
efforts to affect small entities. This analysis was based on the
estimated impacts associated with the listing of B. nevinii and
proposed critical habitat designation and evaluated the potential for
economic impacts related to transportation projects; land development;
management of Vail Lake; recreation; fire management; and invasive,
nonnative plant species management. The FEA also estimated the costs
associated solely with the designation of critical habitat for B.
nevinii (incremental impacts). Overall, the FEA estimates that the
potential economic effects of actions relating to the conservation of
B. nevinii, including costs associated with sections 4, 7, and 10 of
the Act, and including those attributable to the designation of
critical habitat, will be $1.80 million (undiscounted) over the next 20
years. The present value of these impacts, applying a 3 percent
discount rate, is $1.34 million; or $0.95 million, using a discount
rate of 7 percent. This is a reduction from the impacts estimated in
the DEA of about $0.15 million (undiscounted) over the next 20 years.
The FEA also estimates total costs attributable solely to the
designation of critical habitat for B. nevinii (incremental costs) to
be $3,593 (present value at a three percent discount rate). Impacts to
small entities are not anticipated because the final designation of
critical habitat for B. nevinii includes only Federal lands, and costs
associated with modifications to activities will be borne entirely by
the Federal government (USFS or BLM) as we do not anticipate any
applicants would be involved in consultations regarding impacts to the
designated critical habitat (please refer to section Appendix B of the
FEA for a full discussion of potential economic impacts to small
entities). Transportation projects that are reasonably foreseeable
within the 20-year analysis period are not anticipated to impact areas
within designated critical habitat and were not considered.
In summary, we have considered whether this designation would
result in a significant economic effect on a substantial number of
small entities. The entire designated critical habitat is owned and
managed by the Federal government, which is not considered a small
business entity. Therefore, based on the above reasoning and currently
available information, we certify that this 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 (see ADDRESSES for
information on obtaining a copy of the final economic analysis).
Executive Order 13211--Energy Supply, Distribution, or Use
On May 18, 2001, the President issued an Executive Order (E.O.
13211; Actions Concerning Regulations That Significantly Affect Energy
Supply, Distribution, or Use) on regulations that significantly affect
energy supply, distribution, and use. E.O. 13211 requires agencies to
prepare Statements of Energy Effects when undertaking certain actions.
OMB has provided guidance for implementing this Executive Order that
outlines nine outcomes that may constitute ``a significant adverse
effect'' when compared without the regulatory action under
consideration. The final economic analysis finds that none of these
criteria are relevant to this analysis. Thus, based on information in
the economic analysis, energy-related impacts associated with B.
nevinii conservation activities within the final critical habitat
designation are not expected. Therefore, this action is not a
significant energy action, and no Statement of Energy Effects is
required.
Unfunded Mandates Reform Act
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
[[Page 8436]]
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 [T]ribal 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 [T]ribal governments under entitlement
authority,'' if the provision would ``increase the stringency of
conditions of assistance'' or ``place caps upon, or otherwise decrease,
the Federal Government's responsibility to provide funding,'' and the
State, local, or Tribal governments ``lack authority'' to adjust
accordingly. At the time of enactment, these entitlement programs were:
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social
Services Block Grants; Vocational Rehabilitation State Grants; Foster
Care, Adoption Assistance, and Independent Living; Family Support
Welfare Services; and Child Support Enforcement. ``Federal private
sector mandate'' includes a regulation that ``would impose an
enforceable duty upon the private sector, except (i) a condition of
Federal assistance or (ii) a duty arising from participation in a
voluntary Federal program.''
The designation of critical habitat does not impose a legally
binding duty on non-Federal Government entities or private parties.
Under the Act, the only regulatory effect is that Federal agencies must
ensure that their actions do not destroy or adversely modify critical
habitat under section 7. While non-Federal entities that receive
Federal funding, assistance, or permits, or that 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. Furthermore, all lands designated as critical habitat in this rule
are managed by BLM and USFS, which are not considered small entities or
small governments. The designation of critical habitat imposes no
obligations on State or local governments. As such, a Small Government
Agency Plan is not required.
Takings
In accordance with E.O. 12630 (Government Actions and Interference
with Constitutionally Protected Private Property Rights), we have
analyzed the potential takings implications of designating
approximately 6 ac (3 ha) of lands in Riverside County, California, as
critical habitat for Berberis nevinii in a takings implications
assessment. The takings implications assessment concludes that this
final designation of critical habitat does not pose significant takings
implications for lands within or affected by the designation.
Federalism
In accordance with E.O. 13132 (Federalism), this final rule does
not have significant Federalism effects. A Federalism assessment is not
required. In keeping with 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. We received one
comment from a local agency during the public comment period for the
proposed critical habitat rule. This commenter supported the proposed
exclusion of private lands within the boundaries of the Western
Riverside County MSHCP plan area from the designation of final critical
habitat, but was concerned that this area could still be included in
the final designation if the Secretary determined that the benefits of
including these lands outweigh the benefits of excluding them. We have
determined that the benefits of excluding these private lands covered
by the Western Riverside County MSHCP outweigh the benefits of
designating critical habitat in these areas, and that this exclusion
will not result in the extinction of Berberis nevinii; therefore, we
have excluded all private lands from this final designation (please
refer to the Public Comments section of this final rule for a detailed
discussion of this comment and our response).
The entire designated critical habitat is owned and managed by the
Federal government and, therefore, is unlikely to have any incremental
impact on State and local governments and their activities. The
designation may have some benefit to these governments because the
areas that contain the physical and biological features essential to
the conservation of the species are more clearly defined, and the PCEs
necessary to support the life processes of the species are specifically
identified. This information does not alter where and what federally
sponsored activities may occur. However, it may assist local
governments in long-range planning (rather than having them wait for
case-by-case section 7 consultations to occur).
Civil Justice Reform
In accordance with E.O. 12988 (Civil Justice Reform), the Office of
the Solicitor has determined that the rule does not unduly burden the
judicial system and that it meets the requirements of sections 3(a) and
3(b)(2) of the Order. We are designating critical habitat in accordance
with the provisions of the Act. This final rule uses standard property
descriptions and identifies the physical and biological features
essential to the conservation of the species within the designated
areas to assist the public in understanding the habitat needs of
Berberis nevinii.
Paperwork Reduction Act of 1995
This rule does not contain any new collections of information that
require approval by OMB under the Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or
reporting requirements on State or local governments, individuals,
businesses, or organizations. An agency may not conduct or sponsor, and
a person is not required to respond to, a collection of information
unless it displays a currently valid OMB control number.
National Environmental Policy Act
It is our position that, outside the jurisdiction of the Circuit
Court of the United States for the Tenth Circuit, we do not need to
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et
seq.) in connection with designating critical habitat under the Act. We
published a notice outlining our reasons for this determination in the
[[Page 8437]]
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the Circuit Court of the United States for the Ninth Circuit
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 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), E.O. 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. In accordance with
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights,
Federal Tribal Trust Responsibilities, and the Endangered Species Act),
we readily acknowledge our responsibilities to work directly with
Tribes in developing programs for healthy ecosystems, to acknowledge
that Tribal lands are not subject to the same controls as Federal
public lands, to remain sensitive to Indian culture, and to make
information available to Tribes. We have determined that there are no
Tribal lands that meet the definition of critical habitat for Berberis
nevinii. Therefore, we have not designated critical habitat for B.
nevinii on Tribal lands.
References Cited
A complete list of all references cited in this rulemaking is
available on the Internet at http://www.regulations.gov and http://www
.fws.gov/carlsbad/.
Author(s)
The primary authors of this rulemaking are staff of the Nevada Fish
and Wildlife Office, Reno, Nevada, and the Carlsbad Fish and Wildlife
Office, Carlsbad, California.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
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 ``Berberis nevinii'' under
``FLOWERING PLANTS'' in the List of Endangered and Threatened Plants to
read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
---------------------------------------------------------- Historical range Family Status When Critical Special
Scientific name Common name listed habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Berberis nevinii.................. Nevin's barberry..... U.S.A. (CA).......... Berberidaceae........ E............. 648 17.96(a).
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(a) as follows:
0
a. Add ``Family Berberidaceae'' in alphabetical order of the family
names; and
0
b. Add a critical habitat entry for ``Berberis nevinii (Nevin's
barberry)'' under Family Berberidaceae to read as set forth below.
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Berberidaceae: Berberis nevinii (Nevin's barberry)
(1) Critical habitat is depicted for Riverside County, California,
in the text and on the map below.
(2) The primary constituent elements of critical habitat for
Berberis nevinii are the habitat components that provide:
(i) Low-gradient (i.e., nearly flat) canyon floors, washes and
adjacent terraces, and mountain ridge/summits, or eroded, generally
northeast to northwest-facing mountain slopes and banks of dry washes
typically of less than 70 percent slope that provide space for plant
establishment and growth;
(ii) Well-drained alluvial soils primarily of non-marine
sedimentary origin, such as Temecula or sandy arkose soils; soils of
the Cajalco-Temescal-Las Posas soil association formed on gabbro
(igneous) or latite (volcanic) bedrock; metasedimentary substrates
associated with springs or seeps; and heavy adobe/gabbro-type soils
derived from metavolcanic geology (Mesozoic basic intrusive rock) that
provide the appropriate nutrients and space for growth and
reproduction; and
(iii) Scrub (chaparral, coastal sage, alluvial, riparian) and
woodland (oak, riparian) vegetation communities between 900 and 3,000
feet (275 and 915 meters) in elevation that provide the appropriate
cover for growth and reproduction.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, runways, roads, and other paved areas) and the
land on which they are located existing within the legal boundaries on
the effective date of this rule.
(4) Critical habitat map. Data layers defining map units were
created on a base of USGS 1:24,000 maps and critical habitat units were
then mapped using a 100-meter grid to establish Universal Transverse
Mercator (UTM) North American Datum 1927 (NAD 27) coordinates which,
when connected, provided the boundaries of the unit. All acreage
calculations were performed using GIS.
(5) Unit 1: Agua Tibia/Vail Lake Unit, Riverside County,
California.
(i) Subunit 1A: Big Oak Mountain Summit. From USGS 1:24,000
quadrangle Sage, lands bounded by the following UTM NAD27 coordinates
(E, N): 502153, 3708505; 502157, 3708510; 502167, 3708519; 502179,
3708526; 502192, 3708532; 502205, 3708534; 502219, 3708535; 502233,
3708533; 502246, 3708528; 502258, 3708522; 502269, 3708513; 502278,
3708503; 502286, 3708491; 502291, 3708478; 502294, 3708465; 502294,
3708451; 502292, 3708437; 502288, 3708424; 502281, 3708412; 502272,
3708401; 502262, 3708392; 502250, 3708384; 502237, 3708379; 502224,
3708376; 502210, 3708376; 502196, 3708378; 502183, 3708382; 502171,
3708389;
[[Page 8438]]
502160, 3708398; 502151, 3708408; 502143, 3708420; 502138, 3708432;
502135, 3708446; 502135, 3708460; 502137, 3708474; 502141, 3708487;
502148, 3708499; 502153, 3708505; thence returning to 502153, 3708505.
(ii) Subunit 1B: Agua Tibia Mountain Foothills. From USGS 1:24,000
quadrangle Vail Lake, lands bounded by the following UTM NAD27
coordinates (E, N): 504200, 3702900; 504300, 3702900; 504300, 3702800;
504200, 3702800; thence returning to 504200, 3702900.
(iii) Note: Map of Unit 1 follows:
[[Page 8439]]
[GRAPHIC] [TIFF OMITTED] TR13FE08.000
[[Page 8440]]
BILLING CODE 4310-55-C
* * * * *
Dated: January 31, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 08-523 Filed 1-12-08; 8:45 am]
BILLING CODE 4310-55-P