[Federal Register: August 26, 2008 (Volume 73, Number 166)]
[
Rules and Regulations]
[Page 50453-50496]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr26au08-14]
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Part III
Department of the Interior
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Fish and Wildlife Service
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50 CFR Part 17
Endangered and Threatened Wildlife and Plants; Designation of Critical
Habitat for Acanthomintha ilicifolia (San Diego thornmint); Final Rule
[[Page 50454]]
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DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[FWS-R8-ES-2007-0007; 92210-1117-0000-B4]
RIN 1018-AU86
Endangered and Threatened Wildlife and Plants; Designation of
Critical Habitat for Acanthomintha ilicifolia (San Diego thornmint)
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 Acanthomintha ilicifolia (San Diego
thornmint) under the Endangered Species Act of 1973, as amended (Act).
In total, approximately 671 acres (ac) (272 hectares (ha)) of land in
San Diego County, California, fall within the boundaries of the
critical habitat designation.
DATES: This rule becomes effective on September 25, 2008.
ADDRESSES: The final rule, final economic analysis, and map of critical
habitat are available on the Internet at http://www.regulations.gov.
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 (see
ADDRESSES); telephone 760-431-9440; facsimile 760-431-5901. If you use
a telecommunications device for the deaf (TDD), call the Federal
Information Relay Service (FIRS) at 800-877-8339.
SUPPLEMENTARY INFORMATION:
Background
It is our intent to discuss only those topics directly relevant to
the designation of critical habitat for Acanthomintha ilicifolia in
this final rule. For more information on the taxonomy, biology, and
ecology of A. ilicifolia, refer to the final listing rule published in
the Federal Register on October 13, 1998 (63 FR 54938), and the
proposed critical habitat rule published in the Federal Register on
March 14, 2007 (72 FR 11946). We did not receive any new information
pertaining to the species description, life history, distribution,
ecology, or habitat of A. ilicifolia following the publication of the
proposed designation of critical habitat for this species; therefore,
please refer to the documents listed above for a complete detailed
discussion of this species.
Acanthomintha ilicifolia is an annual member of the mint family in
the genus Acanthomintha. This plant ranges in height from 2 to 6 inches
(in) (5 to 15 centimeters (cm)) and has white, two-lipped, tubular
flowers with rose-colored markings on the lower lip (Jokerst 1993, p.
713). Members of this genus have paired leaves and several sharp, spiny
bracts (modified leaves) below whorled flowers. Acanthomintha
ilicifolia can be distinguished from other members of the genus by its
flower, which has hairless anthers and style.
Acanthomintha ilicifolia usually occurs on heavy clay soils in open
areas surrounded by shrubby vegetation. These openings are generally
found within coastal sage scrub, chaparral, and native grassland of
coastal San Diego County and south to San Telmo in northern Baja
California, Mexico (Beauchamp 1986, p. 175; Reiser 2001, pp. 3-5).
Acanthomintha ilicifolia is frequently associated with gabbro soils,
which are derived from igneous rock, and gray calcareous clays derived
from soft calcareous sandstone (Oberbauer and Vanderwier 1991, pp. 208-
209). This species is endemic to San Diego County, California, and
northwestern Baja California, Mexico, and grows on open clay lenses
described as friable, meaning that these soils have a loose, crumbly
texture.
Previous Federal Actions
On August 10, 2004, the Center for Biological Diversity and
California Native Plant Society challenged our failure to designate
critical habitat for this species as well as four other plant species
(Center for Biological Diversity v. Norton, C-04-3240 JL (N. D. Cal.)).
In a settlement agreement dated December 21, 2004, we agreed to submit
for publication in the Federal Register a proposed designation of
critical habitat, if prudent and determinable, on or before February
28, 2007, and a final determination by February 28, 2008. We published
a proposed critical habitat designation for Acanthomintha ilicifolia in
the Federal Register on March 14, 2007 (72 FR 11946). As part of that
2007 proposed designation, we determined that it was prudent to
designate critical habitat for this species (72 FR 11946; March 14,
2007). We accepted public comments on the proposed designation for 60
days, ending May 14, 2007.
On November 27, 2007, we published a notice announcing the
availability of the draft economic analysis (DEA) and reopening the
public comment period on the proposed rule (72 FR 66122). This comment
period closed on December 27, 2007. In light of new information
received, we requested an extension of the due date of the final
critical habitat rule. On April 16, 2008, the extension request was
granted allowing us to open an additional comment period. On May 13,
2008, we opened a third comment period on the DEA and the proposed
rule. This comment period closed on June 12, 2008 (73 FR 27483). Please
refer to the ``Previous Federal Actions'' section of the proposed
critical habitat rule for Acanthomintha ilicifolia, which published in
the Federal Register on March 14, 2007 (72 FR 11946), for a discussion
of additional Federal actions that occurred prior to the proposed
designation of critical habitat for this species. This final rule
complies with the December 21, 2004, settlement agreement and April 16,
2008, extension.
Summary of Comments and Recommendations
We requested written comments from the public on the proposed
designation of critical habitat for Acanthomintha ilicifolia in the
proposed rule that published on March 14, 2007 (72 FR 11946), and in
the notice of availability of the draft EA published in the Federal
Register on November 27, 2007 (72 FR 66122). We received significant
information during the second comment period; therefore, we opened a
third comment period on the proposed rule and the draft EA. The third
comment period opened on May 13, 2008, and closed June 12, 2008 (73 FR
27483). We contacted appropriate Federal, State, and local agencies;
scientific organizations; and other interested parties and invited them
to comment on the proposed rule and the draft EA.
During the comment period that opened on March 14, 2007, and closed
on May 14, 2007, we received two comments directly addressing the
proposed critical habitat designation. One comment was from a Federal
agency and the other was from a non-governmental organization. During
the second comment period open from November 27, 2007 to December 27,
2007, we received four comment letters. Of these latter comments, one
was from a Federal agency, one was from a local government, one was
from a peer
[[Page 50455]]
reviewer, and one was from an organization. We did not receive any
additional comments during the third comment period. All comments
received were grouped into general issue categories relating to the
proposed designation of critical habitat for Acanthomintha ilicifolia,
and are addressed in the following summary and incorporated into this
final rule as appropriate. We did not receive requests for a public
hearing or comments on the draft EA.
Peer Review
In accordance with our policy published on July 1, 1994 (59 FR
34270), we solicited expert opinions from five knowledgeable
individuals with scientific expertise that included familiarity with
the species, the geographic region where the species occurs, and
conservation biology principles. We received a response from one peer
reviewer. The peer reviewer agreed with our characterization of the
known physical and biological features for Acanthomintha ilicifolia.
We reviewed all comments we received from the peer reviewer and the
public for substantive issues and new information regarding critical
habitat for Acanthomintha ilicifolia. The comments are addressed in the
following summary.
Peer Reviewer Comments
Comment 1: The peer reviewer concurred with our characterization of
the known physical and biological features that are essential to the
conservation of this species based on extensive research on
Acanthomintha ilicifolia. Additionally, the peer reviewer highlighted
several areas of interest that have not been studied at this time, but
may provide more information on the physical and biological features
essential for the survival of A. ilicifolia. The topics that the peer
reviewer indicated require further research include population
genetics, pollinator studies, and additional soil studies. The peer
reviewer stated that additional population genetics studies of A.
ilicifolia could show that some populations display greater genetic
diversity, or that some genetic characters are contained in only one or
two populations. Additionally, the peer reviewer indicated that studies
are needed to determine habitat requirements for pollinators and to
understand the effect that habitat fragmentation may have on A.
ilicifolia.
Our Response: We agree with the peer reviewer's assessment of
information needs for Acanthomintha ilicifolia. We used the best
available scientific and commercial data to designate critical habitat
for this species. The peer reviewer's comments support the designation,
and the peer reviewer did not identify any significant data that we did
not consider. We look forward to working with stakeholders,
researchers, and other organizations to study the important issues
identified by the peer reviewer. The California Department of Fish and
Game is funding a study on the pollinators of A. ilicifolia. This and
other future projects will help us to better understand the
conservation needs of this species.
Comment 2: The peer reviewer applauded and reiterated the
importance of our inclusion of newly discovered populations of
Acanthomintha ilicifolia in the proposed critical habitat. The peer
reviewer also commented that our criterion for population stability is
reasonable and further tracking of population dynamics may help refine
this criterion. The peer reviewer supported our inclusion of up to 500
ft (152 m) of habitat adjacent to mapped occurrences where the habitat
is contiguous with occupied habitat and supports the physical and
biological features essential to the conservation of this species. The
peer reviewer indicated these areas capture unmapped clay soil patches,
minimize the effects of fragmentation, and help alleviate our lack of
specific knowledge regarding pollinators for this species by minimizing
the encroachment of irrigated areas that support nonnative insect fauna
(which may compete with native insect pollinators or affect the
hydrology that supports A. ilicifolia).
Our Response: We appreciate the peer reviewer's positive evaluation
of our criteria used to identify critical habitat.
Comment 3: The peer reviewer commented that we should not exclude
the area within the pending Encinitas subarea plan under the Multiple
Habitat Conservation Plan (MHCP) as proposed. The peer reviewer
indicated this plan has not progressed towards completion at a timely
rate and that until a conservation plan has been developed, we should
designate the area as critical habitat.
Our Response: Following the publication of the proposed rule, we
reevaluated the City of Encinitas' pending habitat conservation plan
(HCP) subarea plan under the MHCP in San Diego County, California. We
concluded that, at this time, the City of Encinitas' subarea plan is
not complete and progress on the completion has slowed. However, the
majority of subunit 1C is part of the Manchester Avenue Mitigation Bank
and is actively managed for Acanthomintha ilicifolia (Spiegelberg 2005,
p. 1-33). Preservation and management of the Manchester Avenue
Mitigation Bank is independent of the completion of the City of
Encinitas' subarea plan. We determined that the benefits of excluding
the lands within the Manchester Avenue Mitigation Bank outweigh the
benefits of including these lands in a critical habitat designation and
that their exclusion will not result in extinction of this species.
Therefore, we excluded 70 ac (28 ha) of subunit 1C under section
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act''
section of this final rule for a detailed discussion of this
exclusion), and we designated the remaining 9 ac (4 ha) of private
lands outside the Manchester Avenue Mitigation Bank as critical
habitat.
Public Comments
Comment 4: One commenter stated that at a minimum, all occupied
habitat needs to be designated as critical habitat. The commenter
stated the definitions of ``recovery'' and ``conservation'' are
synonymous, and therefore, any critical habitat designation must
include all areas the Service finds essential to the conservation
(i.e., recovery) of the species. This commenter reiterated that
Acanthomintha ilicifolia is widely scattered in a discontinuous
distribution, and stated that this type of distribution can lead to a
high level of within-species genetic diversity. The commenter stated
that it is essential to conserve within-species diversity represented
by occurrences on varying soil types as well as geographically distinct
populations. The commenter stated that within-species diversity helps
species preserve their ability to respond to diseases, climate change,
pollution, and other current and future threats. The commenter
concluded that in the face of uncertainty, designation of all occupied
habitat, regardless of ownership, is legally necessary to conserve this
species.
Our Response: We agree with the commenter that the term
conservation is defined in the Act as using all methods and procedures
necessary to bring any listed species to the point at which the
measures provided under the Act are no longer necessary (i.e.,
recovery). The provisions within section 4 of the Act require the
Secretary to determine whether a species is endangered or threatened
based on threats to the species, and therefore, recovery is linked to
the alleviation of threats to the species.
[[Page 50456]]
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 capture all areas essential to the conservation
of Acanthomintha ilicifolia as required by the Act. The areas
delineated as critical habitat in this final rule: (1) Support
populations that occur on rare or unique habitat within the species'
range; (2) support the largest known populations of A. ilicifolia; and
(3) support the most stable populations of A. ilicifolia. Further, this
final designation identifies threats to the physical and biological
features essential to the conservation of the species within each
subunit and identifies special management considerations or protection
needed to alleviate those threats and thereby will contribute to the
recovery of A. ilicifolia. Although there is no recovery plan for this
species, we believe that recovery for A. ilicifolia can be achieved
through the implementation of conservation measures to protect the
physical and biological features on the areas occupied by this species
that meet the definition of critical habitat (see the ``Special
Management Considerations or Protection'' section for details about the
type of management needed for this species).
The commenter stated that we need to include all occupied habitat
in order to conserve the species' geographic and genetic diversity.
Species and plant communities that are protected across their ranges
are expected to have lower likelihoods of extinction (Soule and
Simberloff 1986; Scott et al. 2001, pp. 1297-1300); our criteria
identified multiple locations across the entire range of the species as
essential habitat to prevent range collapse. Genetic variation in
plants can result from the effects of population isolation and
adaptation to locally distinct environments (Lesica and Allendorf 1995,
pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt 1996, pp. 291-
295); and our criteria identified populations that occur on rare or
unique habitat within the species' range in order to capture the range
of plant communities, soil types, and environmental gradients in which
Acanthomintha ilicifolia is found to preserve the genetic variation
that may result from adaptation to local environmental conditions, as
documented in other plant species (e.g., see Hamrick and Godt 1996, pp.
299-301; Millar and Libby 1991, pp. 150, 152-155). Locations that
possess unique ecological characteristics are those that represent the
full range of environmental variability where A. ilicifolia have
evolved, and, therefore, are likely to promote the adaptation of this
species to different environmental conditions. We believe we captured
the within-species diversity that the commenter is referring to by
including areas that support populations on rare or unique habitat
types, the largest known populations of A. ilicifolia, and the most
stable populations of A. ilicifolia. At this time, no one has
investigated the genetic structure of this species; however, if such
genetic studies are conducted for this species in the future, we may
revise this critical habitat designation if we determine that this
final designation does not adequately represent the species' range of
genetic diversity.
Our designation relies on the best available scientific information
to capture the geographic range of the species. The commenter did not
specifically identify any geographically distinct populations that we
did not capture in our designation. Our criteria do not capture
populations where we had information indicating that the habitat had
been lost to development and, therefore, the populations were likely
extirpated. Furthermore, our criteria limited the designation to areas
where we had data indicating the location of a known population and
demographic or specific habitat data to assess its importance to the
overall conservation of this species. As described above, our
designation includes areas that support populations of Acanthomintha
ilicifolia on rare or unique habitat types, the largest known
populations of A. ilicifolia, and the most stable populations of A.
ilicifolia, thereby capturing species' diversity. We determined that
designating these areas, each of which was occupied at the time of
listing and contains the physical and biological features essential to
the conservation of A. ilicifolia fulfills the plant's biological needs
and is adequate to conserve this species (for a more detailed
discussion see the ``Criteria Used To Identify Critical Habitat''
section). We concluded that there are no areas outside the geographical
area occupied by the species at the time of listing essential to the
conservation of the species and, therefore, consistent with section
3(5)(c) of the Act, we did not include the entire geographical area
currently occupied by this species.
We recognize that our designation does not encompass all known
occurrences of this species; however, we believe that our criteria and
the designation are adequate to provide for the conservation and
recovery of this species throughout its extant range. Although there is
no recovery plan for this species, we believe that recovery for A.
ilicifolia can be achieved through the implementation of conservation
measures to protect the physical and biological features in the areas
occupied by this species that meet the definition of critical habitat
(see the ``Special Management Considerations or Protection'' section
for details about the type of management needed for this species).
The commenter expressed concern that the proposed designation may
not capture all areas necessary to allow Acanthomintha ilicifolia to
respond to diseases, climate change, pollution, and other current and
future threats. As stated above, the designation identifies all known
threats to the physical and biological features essential to the
conservation of the species in each individual subunit and identifies
special management considerations or protection needed to alleviate
those threats. We recognize these threats may change in the future;
however, we base our critical habitat designations on the information
available at the time of the designation and do not speculate as to
what areas may be found essential if better information became
available or what areas may become essential over time. The commenter
did not include any specific data on future threats to the features
essential to this species nor are we aware of any studies that include
additional information that we did not consider. Should additional data
become available concerning future threats, we may revise this critical
habitat designation if it is determined that the designation did not
capture an area essential to the conservation of the species based on
the identification of additional threats.
Comment 5: One commenter stated that the Act specifically allows
critical habitat designations to include areas both within and outside
the geographical area occupied by the species at the time it is listed
as well as currently unoccupied habitat in order to capture all areas
essential to the recovery of listed species. The commenter continued to
state that the proposed designation of critical habitat
[[Page 50457]]
for Acanthomintha ilicifolia fails to meet the government's legal
requirements to promote recovery of A. ilicifolia.
Our Response: We agree with the commenter that the Act does provide
the flexibility to include areas within the designation that were not
occupied at the time a species was listed (including currently
unoccupied habitat) if those areas are determined to be essential to
the conservation of the species. We evaluated all known occurrences of
Acanthomintha ilicifolia for inclusion in our proposed critical habitat
designation and identified two subunits in the proposed rule, 3E and
4D, for inclusion in the designation that were not known to be occupied
at the time the species was listed. We now consider subunits 3E and 4D
to be occupied at the time of listing. Even though these occurrences
were not discovered until after the species was listed in 1998, over
1,000 plants were recorded at each of these sites when they were first
discovered. We believe the large population size indicates that the
occurrences were established for several years because the seeds of A.
ilicifolia do not disperse in large numbers and any new population of
A. ilicifolia would likely start out small and take several years to
reach a population size greater than 1,000 plants. In our proposed
rule, we did not identify any areas outside the geographical area
occupied by A. ilicifolia as essential for the conservation of this
species. As discussed in response to comment 4, we believe our proposed
rule and this final designation of critical habitat meet the
requirements of the Act and are consistent with 50 CFR 424.12(e). We
are not designating any areas outside the geographical area occupied by
this species as we believe this designation is adequate to ensure the
conservation of the species.
We recognize the designation of critical habitat may not include
all habitat areas that may eventually be determined to be necessary for
the species' recovery. Critical habitat designations do not signal that
habitat outside the designation is unimportant or may not be required
for recovery. Areas outside the critical habitat designation will
continue to be subject to conservation actions implemented under
section 7(a)(1) of the Act and regulatory protections afforded by the
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of
the Act. Critical habitat designations based on the best available
information at the time of designation will not control the direction
and substance of future recovery plans, habitat conservation plans, or
other species conservation planning efforts if new information
available to these planning efforts calls for a different outcome.
Comment 6: One commenter stated that the proposed exclusions, which
if finalized will exclude over 67 percent of occupied habitat, violate
the principles of the Act, and are not legal because excluding areas
from a critical habitat designation will not promote the recovery of
this species as is required by the Act. The commenter noted that,
because all the units identified in the proposed rule are described as
requiring special management considerations to conserve the primary
constituent elements, that all units must be designated.
Our Response: Section 4(a)(3)(A) of the Act generally mandates that
the Secretary designate any habitat which is considered to be critical
habitat, as defined in section 3(5)(A), concurrently with listing and
provides that such designations may be revised thereafter as
appropriate. Section 4(b)(2) of the Act further requires that in making
critical habitat designations, the Secretary take into account the
economic impact, the impact on national security, and any other
relevant impact of specifying any particular area as critical habitat.
The Secretary may exclude any area from critical habitat if he
determines that the benefits of exclusion outweigh the benefits of
specifying such area as part of the critical habitat, unless he
determines that the failure to designate such area as critical habitat
will result in the extinction of the species concerned. Therefore,
consistent with the Act, we must consider the relevant impacts of
designation on those areas that are determined to meet the definition
of critical habitat using the best scientific data available prior to
finalizing a critical habitat designation.
After determining all areas that meet the definition of critical
habitat under section 3(5)(A) of the Act, we considered the economic
impact, the impact on national security, and other relevant impacts of
specifying any particular area as critical habitat. In this final
designation, we recognize that designating critical habitat in areas
where we have partnerships with landowners that have led to
conservation and management of Acanthomintha ilicifolia on non-Federal
lands has a relevant perceived impact to those landowners and a
relevant impact to future partnership and conservation efforts on non-
Federal lands. Based on these relevant impacts, we evaluated the
benefits of designating those particular areas as critical habitat
against the benefits of excluding the areas from the designation, and
we determined that the benefits of excluding a portion of subunits 1A
and 1C and all of subunits 1B, 2A, 2B, 2C, 2D, 3A, 3B, 4A, 4B, 4C, and
4D outweigh the benefits of including these areas in the final critical
habitat designation and that the exclusion of these areas will not
result in extinction of this species. Therefore, these exclusions are
in full compliance with the Act. We also concluded that the
conservation and management that will occur on the non-Federal lands we
are excluding will contribute to the recovery of this species even
though the Act does not require that areas excluded from a critical
habitat designation contribute to recovery of a species, but rather
that the benefits analysis demonstrate that the benefits of exclusion
outweigh the benefits of inclusion and that the exclusion will not
result in the extinction of the species. For a complete analysis and
discussion of the exclusions, please refer to the ``Exclusions Under
Section 4(b)(2) of the Act'' section below.
Comment 7: One commenter specifically questioned the ability of the
San Diego Multiple Habitat Conservation Program (MHCP) and the San
Diego Multiple Species Conservation Program (MSCP) to prevent
extinction of this species, therefore questioning our determination
that excluding these areas would not lead to the extinction of
Acanthomintha ilicifolia. The commenter stated that habitat
conservation plans (HCPs), like the MHCP and MSCP, are often
ineffective conservation vehicles. The commenter listed three studies
and stated that the studies conclude that species covered by multiple-
species HCPs may be less likely to be recovered than those outside such
HCPs. The commenter goes on to state that the MHCP and MSCP are in
relatively early stages of implementation and are untested. The
commenter states there are substantial questions as to whether these
HCPs will provide sufficient habitat or species conservation for A.
ilicifolia. The commenter stated that designating critical habitat in
areas covered by the MHCP and MSCP would not undermine those HCPs and
that the additional protection that a critical habitat designation
provides would be especially beneficial if project proponents in those
areas elect not to follow the guidelines set forth in the HCPs,
suggesting that designating critical habitat would provide a useful and
needed ``safety net.'' The commenter requested that we reconsider
[[Page 50458]]
our proposed exclusion of non-Federal lands covered by the MHCP and
MSCP.
Our Response: We reevaluated our proposed exclusions of non-Federal
land covered by the MHCP and MSCP. Although the commenter grouped the
two HCPs together, we evaluated the proposed exclusion of each HCP
separately in relation to the comments.
We reevaluated our proposed exclusion of non-Federal land covered
by the MHCP under the approved Carlsbad Habitat Management Plan (HMP)
and the draft Encinitas subarea plan. The MHCP is a framework plan that
has been in place for 5 years and is structured to be implemented
through the approval of individual, constituent subarea plans.
The City of Carlsbad received an incidental take permit based on
the Carlsbad HMP, an individual subarea plan under the MHCP framework
plan on November 9, 2004. All 59 ac (24 ha) of land that meet the
definition of critical habitat within the boundaries of the Carlsbad
HMP are already conserved under the Carlsbad HMP. In addition to the
two areas that we proposed as critical habitat in the Carlsbad HMP,
there are other populations of A. ilicifolia that are conserved under
the subarea plan. Not all areas placed in conservation are actively
managed under the plan at this time; however, we believe the Carlsbad
HMP conserves A. ilicifolia within its boundaries. According to the
Service's biological opinion for the Carlsbad HMP, coverage of
Acanthomintha ilicifolia under this plan is contingent upon compliance
with the conservation measures outlined in the HMP (i.e., a funded
management plan in place) and the completion of the San Marcos subarea
plan under the MHCP. However, we did not identify any lands in San
Marcos that meet the definition of critical habitat as described in the
``Criteria Used to Identify Critical Habitat'' section. As a result, we
analyzed the exclusion of subunits 1A and 1B in more detail and
concluded that exclusion is appropriate because the essential habitat
under the Carlsbad HMP is conserved. Management plans were developed
and are being implemented for conserved lands in both of these
subunits, although some management differs between these two areas
because these management plans were developed over different periods of
time (i.e., the management plan for subunit 1A was developed after the
Carlsbad HMP was completed, whereas the management plan for lands
within subunit 1B was developed prior to development of the Carlsbad
HMP). Regardless, conservation and management of A. ilicifolia in these
subunits is occurring and we believe it is contributing to the
conservation of the species.Overall, the extent of habitat preservation
and management that has taken place through implementation of the
Carlsbad HMP since it was permitted in 2004 is significant, and
demonstrates the City of Carlsbad's commitment to fully implement this
HCP.
A detailed accounting of preservation, conservation, and management
requirements of the Carlsbad HMP can be found in the ``Exclusions Under
Section 4(b)(2) of the Act'' section. The comprehensive framework of
the subarea plan and area-specific management plans developed as areas
are preserved under the subarea plan contain requirements to conserve
and adaptively manage Acanthomintha ilicifolia habitats and provide for
the conservation of this species' primary constituent elements (PCEs),
thereby contributing to the recovery of this species. The Carlsbad HMP
provides for management and monitoring for A. ilicifolia at several
sites, including habitat in subunit 1A that is currently actively
managed by the Center for Natural Lands Management. Activities that
benefit A. ilicifolia in subunit 1A include mapping and census
projects, removal of nonnative invasive species, and the restoration of
areas degraded by past human use (Tierra Data, Inc. 2005, p. 34-63;
Carlsbad HMP 2004, p. D-97). Land in subunit 1B was permanently
preserved prior to the creation of the HMP. Management of the conserved
land in subunit 1B is the responsibility of the homeowners'
associations who own the open space in this subunit. These lands are
signed and fenced and considered part of Carlsbad's habitat preserve.
The Encinitas subarea plan under the MHCP is not complete, and
significant progress has not occurred towards its completion.
Therefore, we are not excluding from the final designation essential
habitat within the draft Encinitas subarea plan.
We also reevaluated our proposed exclusion of non-Federal land
covered by approved subarea plans under the MSCP. The MSCP is a
framework plan that has been in place for 10 years. Both the City and
the County of San Diego received incidental take permits for their
individual subarea plans under the MSCP framework plan. Approximately
948 ac (383 ha) of land that meet the definition of critical habitat
are within the City and County subarea plan boundaries under the MSCP.
The MSCP subarea plans provide for the conservation of Acanthomintha
ilicifolia through the establishment of preserve lands within the
Multi-Habitat Planning Area (MHPA) (City) and Pre-Approved Mitigation
Areas (PAMA) (County). In 10 years of implementing the subarea plans,
approximately 787 ac (319 ha), or 83 percent, of lands that meet the
definition of critical habitat are conserved. Although some areas
placed in conservation are not yet fully managed under the plans, we
believe the subarea plans under the MSCP will conserve essential
habitat of A. ilicifolia within the subarea plan boundaries. The extent
of habitat preservation and management that has taken place through
implementation of the MSCP subarea plans is significant, and
demonstrates the City's and County's commitments to fully implement
their subarea plans.
The commenter indicated concern that species may more likely
recover outside of HCPs and questioned the habitat and species
conservation provided by the MSCP for Acanthomintha ilicifolia. The
subarea plans under the MSCP contain requirements to monitor and
adaptively manage A. ilicifolia habitats and provide for the
conservation of this species' PCE. The framework and area-specific
management plans required under the subarea plans are comprehensive and
address a broad range of management needs at the preserve and species
levels that are intended to reduce the threats to covered species and
thereby contribute to the recovery of the species. These plans include
the following: (1) Fire management; (2) public access control; (3)
fencing and gates; (4) ranger patrol; (5) trail maintenance; (6)
visitor/interpretive and volunteer services; (7) hydrological
management; (8) signage and lighting; (9) trash and litter removal;
(10) access road maintenance; (11) enforcement of property and/or
homeowner requirements; (12) removal of invasive species; (13)
nonnative predator control; (14) species monitoring; (15) habitat
restoration; (16) management for diverse age classes of covered
species; (17) use of herbicides and rodenticides; (18) biological
surveys; (19) research; and (20) species management conditions (MSCP
1998).
Eight major populations of Acanthomintha ilicifolia are included
within preserve lands under the approved MSCP subarea plans, each of
which will be conserved from 80 to 100 percent, with 85 percent overall
coverage. A detailed accounting of preservation, conservation, and
management requirements can be found in the ``Exclusions Under Section
4(b)(2) of the Act'' section. In sum, all but 89 ac (36 ha) of the
total 948 ac (383 ha)
[[Page 50459]]
of lands that meet the definition of critical habitat within the MSCP
plan area are conserved or otherwise assured of conservation.
Consistent with the narrow endemics requirements of the MSCP, the
remaining 89 ac (36 ha) will be surveyed for A. ilicifolia prior to any
development occurring on these lands. Under the City of San Diego's
subarea plan, impacts to narrow endemic plants, including A.
ilicifolia, inside the MHPA will be avoided and outside the MHPA will
be protected by: (1) Avoidance; (2) management; (3) enhancement; and/or
(4) transplantation to areas identified for preservation (City of San
Diego 1997, p. 105-106; Service 1997, p. 15). Under the County of San
Diego's subarea plan, narrow endemic plants, including A. ilicifolia,
will be conserved under the Biological Mitigation Ordinance using a
process that: (1) Requires avoidance to the maximum extent feasible;
(2) allows for a maximum 20 percent encroachment into a population if
total avoidance is not feasible; and (3) requires mitigation at the 1:1
to 3:1 (in kind) for impacts if avoidance and minimization of impacts
would result in no reasonable use of the property (County of San Diego
(BMO) 1997, p. 11; Service 1998, p. 12). These measures will ameliorate
any habitat loss within the 89 ac (36 ha) of lands that are not
currently preserved or otherwise assured of conservation under the
MSCP, by requiring in situ conservation or mitigation of impacts to A.
ilicifolia and its habitat. Although some losses may occur to this
species, the preservation, conservation, and management of A.
ilicifolia required under the City and County MSCP subarea plans
ensures the long-term conservation of this species and its habitat
within the plan areas.
We evaluated the relevant impacts of designating critical habitat
within areas covered by the City and County MSCP subarea plans and
determined that the benefits of excluding non-Federal lands covered by
the MSCP outweigh the benefits of specifying those areas as critical
habitat and determined that excluding these lands will not lead to the
extinction of Acanthomintha ilicifolia. Therefore, we excluded all non-
Federal lands covered by the City and County subarea plans under the
MSCP from this final designation (please see ``Exclusions Under Section
4(b)(2) of the Act'' section below for a detailed analysis).
The commenter also expressed concern that HCPs are ineffective
conservation vehicles. We respectfully disagree. Numerous processes are
incorporated into HCPs that provide for Service oversight of
implementation to ensure compliance with the provisions to protect
Acanthomintha ilicifolia. For example, the MSCP imposes annual
reporting requirements and provides for Service review and approval of
proposed subarea plan amendments and preserve boundary adjustments and
for Service review and comment on projects during the California
Environmental Quality Act review process. The Service also chairs the
MSCP Habitat Management Technical Committee and the Monitoring
Subcommittee (MSCP 1998, p. 5-11--5-23). The Carlsbad HMP also
incorporates many processes to ensure the Service an active role in
implementation of the HCP. For example, Habitat Management Plans,
reviewed and approved by the Service, must be developed for each
preserve area within the Carlsbad HMP, and monitoring and management
objectives must be established for each preserve. Progress towards
meeting these objectives is measured through the submission of annual
reports. There are also regular coordination meetings between the
Service and the City of Carlsbad to discuss on-going conservation
issues. Both the MSCP subarea plans and the Carlsbad HMP must account
annually for the progress they are making in assembling conservation
areas. The Service must receive annual reports that include, both by
project and cumulatively, the habitat acreage destroyed and conserved
within the HCPs. This accounting process ensures that habitat
conservation proceeds in rough proportion to habitat loss and in
compliance with the MSCP subarea plans and, the Carlsbad HMP, and the
plans' associated implementing agreements.
The commenter did not provide copies of the citations that they
stated conclude that multi-species HCPs are not likely to contribute to
the recovery of listed species, nor did the commenter identify any
examples of projects that may not comply with the Carlsbad HMP or the
City and County MSCP subarea plans by impacting Acanthomintha
ilicifolia. In light of our summary above, we continue to believe that
implementation of the Carlsbad HMP and the City and County MSCP subarea
plans will benefit A. ilicifolia recovery, and we believe there is
adequate oversight of these plans to ensure compliance.
Comment 8: One commenter supported our exclusion of lands covered
by the MSCP and requested that we exclude proposed critical habitat
areas within the pending North County MHCP in San Diego County. The
commenter stated that the designation of critical habitat in these
areas may have a negative effect on entities pursuing the MHCP and
deter the completion of the plan.
Our Response: At this time, the HCP for northern San Diego County
(North County MHCP) is being developed and a draft plan is not
available for public review. We understand the commenters' concern that
a designation of critical habitat in areas that may be addressed in the
future by the North County MHCP may have a negative effect on entities
pursuing the HCP and deter its completion. This concern is consistent
with our discussion of conservation partnerships in the ``Exclusions
Under Section 4(b)(2) of the Act'' section of this final rule. However,
we also recognize that there is a regulatory and recovery benefit to
designating critical habitat in areas that are not protected through
existing management or conservation plans. Exclusions under section
4(b)(2) of the Act must be considered on a case-by-case basis. Because
a draft of the northern San Diego County MHCP has not been released for
public comment or formally evaluated by the Service, it is not clear
that this framework plan will adequately address the conservation and
recovery needs of Acanthomintha ilicifolia. Nor is it clear which areas
will actively develop subarea plans under the North County MHCP.
Therefore, we cannot presently determine that the regulatory and
recovery benefits of a critical habitat designation in these areas
would be minimized by the measures provided under this future plan.
Therefore, we did not exclude lands that may be covered under this plan
from critical habitat (the portion of subunit 1A owned by the County of
San Diego). However, if this designation is revised in the future, we
will re-evaluate for potential exclusion areas conserved under the
plan. In the meantime, we are committed to continue working with all
partners to the North County MHCP to minimize any additional regulatory
burden attributable to this critical habitat designation.
Comment 9: One commenter questioned discussion in the proposed rule
concerning critical habitat designations and public perceptions,
stating that we did not present any empirical or quantitative evidence
to support our claim that landowners fear a decline in property value
due to real or perceived restrictions on land-use options and that
participants in pending HCPs or other conservation plans may abandon
the planning process in part due to perceived additional regulatory
compliance with a critical habitat designation. The commenter noted
that the MSCP and MHCP and their
[[Page 50460]]
respective subarea plans were presumably approved only after a public
education program that would have explained the consequences of having
listed species on private property. The commenter further stated that
if the MSCP and MHCP function as promised by the proposed rule,
critical habitat designation should create few or no additional burdens
for permittees and finally that the Service inappropriately considers
an exclusion as an ``either-or'' situation with regard to HCP
implementation. The commenter stated that critical habitat and habitat
conservation plans can coexist.
Our Response: The proposed designation cites several studies that
have examined the issue of conservation of threatened and endangered
species on private lands to support our discussion of the impacts to
non-Federal landowners (Wilcove et al. 1996; Bean 2002; Conner and
Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). As discussed
in detail in the ``Conservation Partnerships on Non-Federal Lands''
section below, at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Although many non-Federal landowners derive satisfaction from
contributing to listed species recovery, many private landowners 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 (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). Such voluntary conservation actions may be
particularly important for listed plant species that are not subject to
the take prohibition under section 9 of the Act or the incidental take
permitting requirements of section 10(a)(1)(B) of the Act. For this
reason, we actively encourage participants developing HCPs under
section 10 of the Act to include measures that address the conservation
of listed plant species in their plans even though such measures are
not required. Designating critical habitat for plant species on lands
voluntarily protected in an HCP or other conservation management plan
could undermine our efforts. Therefore, we believe the judicious use of
excluding specific areas of non-federally owned lands from critical
habitat designations can contribute to species recovery and provide a
superior level of conservation than critical habitat alone.
Furthermore, our proposed critical habitat designations often draw
significant public comment on the real and perceived impacts of the
designation to Federal and non-Federal landowners. We received
significant comments on multiple rules concerning impacts to private
and non-Federal lands covered by HCPs and other land management
conservation plans, including comment on this rule stating that the
designation of critical habitat in areas covered by HCPs may have a
negative effect on entities pursuing an HCP and may deter the
completion of pending subarea plans under either the MSCP or MHCP (see
Comment 8). As discussed in response to Comment 7 above and in the
``Conservation Partnerships on Non-Federal Lands'' section below, we
continue to recognize that designating critical habitat in areas where
we have partnerships with landowners that have led to conservation or
management of listed species on non-Federal lands has a relevant
perceived impact to landowners and a relevant impact to future
partnership and conservation efforts on non-Federal lands.
Finally, we agree with the commenter that implementing a signed and
permitted HCP is not an ``either-or'' situation when determining
whether to designate an area that meets the definition of critical
habitat as critical habitat. Rather, as stated in section 4(b)(2) of
the Act, the Secretary shall designate critical habitat, or make
revisions thereto, on the basis of the best available data and after
(emphasis added) taking into consideration the economic impact, the
impact on national security, 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. We agree with the commenter that
designation of an area covered by an HCP should create few or no
additional regulatory burdens for permittees, and our analyses of the
benefits of including areas covered by an HCP demonstrates how the
regulatory benefit of inclusion is small. And while we agree that
critical habitat and habitat conservation plans can coexist, we
recognize that the designation has a relevant real impact to future
partnerships and conservation efforts on non-Federal lands and a
perceived impact to those landowners already in partnership with us. We
consider that impact in weighing the benefits of inclusion against the
benefits of exclusion on a case-by-case basis to determine if exclusion
of those lands is appropriate.
Comment 10: One commenter objected to the discussion in the
proposed rule concerning the inundation of lawsuits relative to
critical habitat and suggested that litigation would be unnecessary or
unsuccessful if the Service complied with the law. The commenter
suggested that policymakers make choices that avoid compliance with the
Act's critical habitat requirements and underfund species and habitat
conservation programs, starving the Service of funds and staff. The
commenter concluded that compliance with the law would be a more
fiscally, biologically, and legally responsible choice.
Our Response: We removed the discussion of litigation-driven
workload from this final rule. We believe this final rule is
scientifically sound and compliant with the Act and our implementing
regulations.
Comment 11: One commenter indicated that portions of subunit 1A are
developed or used for agriculture and do not have the potential to
support Acanthomintha ilicifolia. The commenter provided a map
depicting the areas they believe do not support this species and
requested that we remove these lands from critical habitat.
Our Response: We reassessed the areas described by the commenter.
We removed the lands in subunit 1A that do not contain the PCE,
including active agricultural fields, navigational aids associated with
McClellen-Palomar Airport, a dirt maintenance road, and development
areas in the City of Carlsbad. We remapped the boundary of subunit 1A,
and verified that the revised subunit contains the features essential
to the conservation of species which may require special management
considerations or protection. As a result of the changes described
above, we removed 26 ac (11 ha) that do not support A. ilicifolia and
do not contain the PCE, resulting in 62 ac (25 ha) designated as
critical habitat within subunit 1A.
Comment 12: One commenter provided information on the management of
lands owned by the
[[Page 50461]]
Center for Natural Lands Management (CNLM). The commenter indicated
that portions of subunits 1A and 1C are owned by the CNLM, and are
managed and monitored for Acanthomintha ilicifolia on an annual basis.
Funding for the perpetual management of these sites is obtained from a
monetary endowment. The CNLM prepared a Property Analysis Record (PAR)
to determine how much money is needed to manage and monitor A.
ilicifolia on these lands. The commenter indicated that the CNLM
reduces the threats to A. ilicifolia by managing weeds, erecting
fences, closing trails, and distributing educational literature to the
public. Additionally, the commenter indicated that high school students
are involved with annual monitoring for this species and that an
entomologist is working to determine potential pollinators for A.
ilicifolia on lands in subunit 1C.
Our Response: We appreciate the detailed information provided by
the commenter, and we incorporated this information as appropriate into
the final rule.
Comments From Other Federal Agencies
Comment 13: The U.S. Forest Service (USFS) commented that laws,
regulations, policies, and current Land Management Plan (LMP) direction
currently in place provide protection at least equivalent to the
protection that critical habitat designation would provide. The agency
stated that the LMP in place at the Cleveland National Forest (CNF)
incorporates management direction that provides sufficient protection
and management for Acanthomintha ilicifolia and its habitat, and that
the section 7 consultation on the LMP resulted in the Service coming to
a similar conclusion, resulting in the issuance of a non-jeopardy
biological opinion. Additionally, the Cleveland National Forest (CNF)
has a Species Management Guide for A. ilicifolia that provides for
exclusion of grazing, recreation, development, and soil disturbance
(USFS 1991). The USFS commented that due to management and conservation
standards, there should not be any reason to adversely modify the
habitat's primary constituent elements for A. ilicifolia on the CNF.
Furthermore, they commented that 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 designation would unnecessarily add to their analysis burden
by requiring CNF to make a determination of effect regarding critical
habitat when consulting under section 7 of the Act. The USFS
acknowledged their responsibility to conserve and recover listed
species and that they will continue to provide necessary management,
regardless of critical habitat designation.
Our Response: We determined that the lands identified on the CNF
contain the physical and biological features essential to the
conservation of Acanthomintha ilicifolia and meet the definition of
critical habitat (see ``Criteria Used to Identify Critical Habitat''
section below). We acknowledge that the LMP for CNF will benefit A.
ilicifolia and its habitat, and that the CNF has completed many of the
actions outlined in the 1991 Management Guide (USFS 1991) to avoid and
minimize impacts to A. ilicifolia. The LMP contains general provisions
for conservation of this species and the Management Guide suggests
specific management and conservation actions that should address known
threats to this species on USFS lands. However, the LMP is a guidance
document and does not require or assure funding for management actions
outlined in the plan. Additionally, the LMP does not preclude projects
from occurring outside of the framework of the plan that could
negatively impact areas designated as critical habitat.
The Secretary has the discretion to 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 specifying such area, unless he
determines that the exclusion would result in the extinction of the
species concerned. We considered the request from the USFS 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 already completed consultation
under Section 7(a)(2) of the Act on the LMP.
As part of our section 7 consultation with the USFS on the LMP, the
USFS 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
Acanthomintha ilicifolia. Since critical habitat has not been
previously proposed or designated for this species, it is anticipated
that consultation with the USFS regarding the LMP will be reinitiated.
However, because the USFS has already consulted with us on potential
impacts to the species related to 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 case.
Based on the record before us, we elected not to exclude these
lands and are designating lands identified on the CNF that meet the
definition of critical habitat and are essential to the conservation of
Acanthomintha ilicifolia. We will continue to consider on a case-by-
case basis in future critical habitat rules whether to exclude specific
lands from such designation when we determine that the benefits of such
exclusion outweigh the benefits of their inclusion.
Comment 14: One commenter indicated that the critical habitat
proposal, if finalized, may adversely affect the Federal Aviation
Administration's (FAA's) and San Diego County's ability to continue to
operate McClellan-Palomar Airport in a safe and efficient manner
because navigational aides (e.g., lights, maintenance road to access
navigational aides) are within the area proposed as subunit 1A.
Our Response: As stated above in our response to comment 11 above,
we removed the lands in subunit 1A that do not contain the PCE,
including all active agricultural fields, lands containing navigational
aides associated with McClellen-Palomar Airport, a dirt maintenance
road, and development areas in the City of Carlsbad. We remapped the
boundary of subunit 1A, and we have verified that this area meets the
definition of critical habitat. Based on currently available
information, we believe that we have removed all existing navigational
aides from the designated critical habitat. Additionally, we do not
believe that regular maintenance of any navigational aides that we are
currently unaware of, but have been inadvertently included in the
designation, will adversely modify critical habitat. We are committed
to working with the FAA and staff of McClellen-Palomar Airport to
ensure that the designation of critical habitat does not impact the
future safe and efficient operation of the airport.
[[Page 50462]]
Summary of Changes From the Proposed Rule
In our March 14, 2007, proposed rule we identified 1,936 acres (ac)
(783 hectares (ha)) of essential habitat for Acanthomintha ilicifolia
in four units and seventeen subunits (72 FR 11946). At that time we
proposed to exclude 1,302 ac (527 ha) under section 4(b)(2) of the Act
(72 FR 11946; March 14, 2007). As we continued work on the proposed
designation, we made two types of changes that affected the total area
considered to meet the definition of critical habitat (what we will
refer to as ``essential habitat''). First, we corrected simple mapping
errors; for example, in one case we tallied a single piece of land
twice in calculating the total number of acres thought to be essential
habitat. Second, we removed areas that did not qualify as essential
habitat either because they were developed and degraded or because they
did not contain the PCE and were not otherwise considered essential.
Table 1 depicts the changes made to the proposed rule published on
March 14, 2007, and indicates how much area was removed (or added as
was the case for some of the corrections) for each of the two reasons
discussed above. As we continued work on the designation, we notified
the public of new information we were using to make changes to the
critical habitat (72 FR 66122, November 27, 2007; 73 FR 27483, May 13,
2008). However, Table 1 and this discussion focus on the changes from
the March 14, 2007, proposed rule (72 FR 11946) to this final rule. The
details related to these changes are explained below.
Table 1--Areas Proposed as Critical Habitat (72 FR 11946, March 14, 2007), Area Removed or Added as a
Correction, Area Removed as Non-Essential Habitat, and Final Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
Essential habitat Area removed
in the March 14, Area subtracted because it was not Essential habitat
Critical habitat unit/subunit 2007 proposed or added as a essential habitat as of this final
rule * correction * * rule *
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
County:
1A. Palomar Airport......... 88 ac (36 ha)..... .................. 26 ac (11 ha)..... 62 ac (25 ha).
1B. Southeast Carlsbad...... 73 ac (29 ha)..... .................. 16 ac (6 ha)...... 57 ac (23 ha).
1C. Manchester.............. 92 ac (37 ha)..... .................. 13 ac (5 ha)...... 79 ac (32 ha).
Unit 2: Central San Diego
County:
2A. Los Pe[ntilde]asquitos 63 ac (25 ha)..... .................. .................. 63 ac (25 ha).
Canyon.
2B. Sabre Springs........... 52 ac (22 ha)..... Subtracted: 0 ac .................. 52 ac (21 ha).
(1 ha).
2C. Sycamore Canyon......... 306 ac (124 ha)... .................. .................. 306 ac (124 ha).
2D. Slaughterhouse Canyon... 77 ac (31 ha)..... .................. .................. 77 ac (31 ha).
Unit 3: Viejas Mountain and
Poser Mountain:
3A. Viejas Mountain......... 33 ac (13 ha)..... .................. 1 ac (<1 ha)...... 32 ac (13 ha).
3B. Viejas Mountain......... 208 ac (84 ha).... .................. 15 ac (6 ha)...... 193 ac (78 ha).
3C. Viejas Mountain......... 318 ac (128 ha)... .................. 42 ac (16 ha)..... 276 ac (112 ha).
3D. Viejas Mountain......... 82 ac (33 ha)..... .................. .................. 82 ac (33 ha).
3E. Poser Mountain.......... 34 ac (14 ha)..... .................. .................. 34 ac (14 ha).
3F. Poser Mountain.......... 163 ac (66 ha).... .................. 8 ac (3 ha)....... 155 ac (63 ha).
Unit 4: Southern San Diego
County:
4A. McGinty Mountain........ 18 ac (7 ha)...... Added: 2 ac (1 ha) .................. 20 ac (8 ha).
4B. McGinty Mountain........ 220 ac (89 ha).... Subtracted: 72 ac .................. 148 ac (60 ha).
(29 ha).
4C. McGinty Mountain........ 27 ac (11 ha)..... Added: 1 ac (0 ha) .................. 28 ac (11 ha).
4D. Hollenbeck Canyon....... 84 ac (34 ha)..... .................. .................. 84 ac (34 ha).
-------------------------------------------------------------------------------
Total................... 1,936 ac (783 ha) Subtracted: 69 ac 121 ac (48 ha).... 1,748 ac (707 ha).
**. (29 ha).
----------------------------------------------------------------------------------------------------------------
* The values in this table do not represent an actual conversion of acres to hectares.
** The sum of the values in this column is 1,938 ac (783 ha), whereas the value given for the total in the Table
1 of the March 14, 2007, Federal Register notice was 1,936 ac (783 ha). This difference is due to rounding and
the conversion of values from acres to hectares on a subunit-by-subunit basis rather than for the critical
habitat as a whole.
(1) In the proposed rule (72 FR 11946; March 14, 2007), we proposed
to exclude a total of 95 ac (38 ha) of private lands in subunits 3C,
3D, and 3F from the final critical habitat designation under section
4(b)(2) of the Act. We believed these lands were within the planning
boundary for the County of San Diego approved subarea plan under the
San Diego MSCP. However, the private lands in subunits 3C, 3D, and 3F
are not within the planning boundary for the County of San Diego
subarea plan under the MSCP; therefore, consideration for exclusion
under that HCP was inappropriate. All lands that meet the definition of
critical habitat in subunits 3C, 3D, and 3F are now designated as
critical habitat.
(2) In the proposed rule (72 FR 11946; March 14, 2007), the maps
and boundary descriptions of subunits 4A and 4B were delineated
correctly; however, the area estimates were incorrect. The correct area
for subunit 4A is 20 ac (8 ha) rather than 18 ac (7 ha), and the
correct area for subunit 4B is 148 ac (60 ha) rather than 220 ac (89
ha) (see Table 1). Non-Federal lands in subunits 4A and 4B are excluded
from critical habitat, and the federally owned lands in subunit 4A are
designated as critical habitat.
(3) In the proposed rule (72 FR 11946; March 14, 2007), we did not
identify that subunit 4A contained 2 ac (1 ha) of federally owned land,
and subunit 4C contained 1 ac (<1 ha) of federally owned land. Both of
these subunits include land in the Service's San Diego National
Wildlife Refuge (SDNWR). We proposed to exclude all non-Federal lands
in subunits 4A and 4C from the final designation based on the benefits
provided to Acanthomintha ilicifolia by the County of San Diego subarea
plan under the MSCP. While we are excluding all private and non-Federal
public lands covered by the subarea plan in this final rule, this
exclusion
[[Page 50463]]
does not apply to Federal lands; therefore, we are designating 3 ac (1
ha) on the SDNWR in Unit 4.
(4) We re-evaluated the areas proposed as critical habitat based on
more up-to-date aerial imagery, field visits, and the most recent
version of the HabiTrak database (i.e., a database that shows areas
lost to development in the area covered by the MSCP). We determined
that some areas proposed as critical habitat no longer contain the PCE.
Therefore, we removed these areas from critical habitat. Below we
describe the specific areas that we removed from critical habitat:
(a) Subunit 1A, Palomar Airport--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 88 ac (36
ha). After re-evaluating this area, we found that approximately 26 ac
(11 ha) do not contain the PCE, including all active agricultural
fields, lands containing navigational aides associated with McClellen-
Palomar Airport, a dirt maintenance road, and development areas in the
City of Carlsbad (see Table 1). As a result, we determined that 62 ac
(25 ha) meet the definition of critical habitat in subunit 1A. Of the
62 ac (25 ha), we are designating 60 ac (24 ha) as critical habitat,
and we are excluding 2 ac (1 ha) from critical habitat under section
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act''
section).
(b) Subunit 1B, Southeast Carlsbad--In the proposed rule (72 FR
11946; March 14, 2007), we indicated that this subunit contained 73 ac
(30 ha). After re-evaluating this area, we found that approximately 16
ac (7 ha) are regularly maintained wildland-urban interface and do not
support the PCE for Acanthomintha ilicifolia; therefore, we removed
these 16 ac (7 ha) from critical habitat (see Table 1). As a result, we
determined that 57 ac (23 ha) meet the definition of critical habitat
in subunit 1B. We are excluding all of the 57 ac (7 ha) from critical
habitat under section 4(b)(2) of the Act (see ``Exclusions Under
Section 4(b)(2) of the Act'' section).
(c) Subunit 1C, Manchester--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 92 ac (37
ha). After re-evaluating this area, we found that approximately 13 ac
(5 ha) are fragmented by suburban development or are too steep to
support the PCE for Acanthomintha ilicifolia; therefore, we removed
these 13 ac (5 ha) from critical habitat (see Table 1). As a result, we
determined that 79 ac (32 ha) meet the definition of critical habitat
in subunit 1C. Of the 79 ac (32 ha) that meet the definition of
critical habitat, we are designating 9 ac (4 ha) as critical habitat,
and we are excluding 70 ac (28 ha) from critical habitat under section
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act''
section).
(d) Subunit 3A, Viejas Mountain--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 33 ac (13
ha). After re-evaluating this area, we found that approximately 1 ac
(<1 ha) is developed and no longer supports the PCE for Acanthomintha
ilicifolia; therefore, we removed this 1 ac (<1 ha) from critical
habitat (see Table 1). As a result, we determined that 32 ac (13 ha)
meet the definition of critical habitat in subunit 3A. We are excluding
all of the 32 ac (13 ha) from critical habitat under section 4(b)(2) of
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section).
(e) Subunit 3B, Viejas Mountain--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 208 ac (84
ha). After re-evaluating this area, we found that approximately 15 ac
(6 ha) are developed and no longer support the PCE for Acanthomintha
ilicifolia; therefore, we removed these 15 ac (6 ha) from critical
habitat (see Table 1). As a result, we determined that 193 ac (78 ha)
meet the definition of critical habitat in subunit 3B. Of the 193 ac
(78 ha) that meet the definition of critical habitat in subunit 3B, we
are designating 52 ac (21 ha) as critical habitat, and we are excluding
141 ac (57 ha) from critical habitat under section 4(b)(2) of the Act
(see ``Exclusions Under Section 4(b)(2) of the Act'' section).
(f) Subunit 3C, Viejas Mountain--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 318 ac (128
ha). After re-evaluating this area, we found that approximately 42 ac
(16 ha) are impacted by rural development and do not contain the PCE;
therefore, we removed these 42 ac (16 ha) from critical habitat (see
Table 1). As a result, we determined that 276 ac (112 ha) meet the
definition of critical habitat in subunit 3C. We are designating all of
the 276 ac (112 ha), which are federally owned, as critical habitat.
(g) Subunit 3F, Poser Mountain--In the proposed rule (72 FR 11946;
March 14, 2007), we indicated that this subunit contained 163 ac (66
ha). After re-evaluating this area, we found that approximately 8 ac (3
ha) are impacted by rural development or agricultural activities and do
not contain the PCE; therefore, we removed these 8 ac (3 ha) from
critical habitat (see Table 1). As a result, we determined that 155 ac
(63 ha) meet the definition of critical habitat in subunit 3F. We are
designating the 155 ac (63 ha), all of which are federally owned, as
critical habitat.
(5) In the proposed rule (72 FR 11946; March 14, 2007), we proposed
the exclusion of lands in subunit 1A and 1B covered by the Carlsbad
Habitat Management Plan (HMP) under the MHCP from the designation of
critical habitat under section 4(b)(2) of the Act. Upon further
analysis of the Carlsbad HMP, we found that coverage of Acanthomintha
ilicifolia under this HCP is contingent on compliance with the
conservation measures outlined in the HMP (i.e., a funded management
plan in place) and the completion of the San Marcos subarea plan under
the MHCP. We announced that we were reconsidering this exclusion in our
May 13, 2008, Federal Register notice (73 FR 27483); we did not receive
public comments on this subject. However, we did not identify any lands
in San Marcos that meet the definition of critical habitat as described
in the ``Criteria Used to Identify Critical Habitat'' section.
Therefore, we analyzed the exclusion of subunit 1A and 1B in more
detail and concluded that exclusion is appropriate because the
essential habitat under the Carlsbad HMP is conserved and has
management in place (see ``Exclusions Under Section 4(b)(2) of the
Act'' section of this final rule for a detailed discussion of this
exclusion). We are designating the remaining 60 ac (24 ha) of land
owned by the County of San Diego in subunit 1A because it is not
covered by the Carlsbad HMP.
(6) In the proposed rule (72 FR 11946; March 14, 2007), we proposed
the exclusion of lands in subunit 1C covered by the pending Encinitas
subarea plan under the MHCP from the designation of critical habitat
under section 4(b)(2) of the Act. At this time, the Encinitas subarea
plan under the MHCP has not been completed. However, the majority of
subunit 1C is part of the Manchester Avenue Mitigation Bank and is
actively managed for Acanthomintha ilicifolia (Spiegelberg 2005, p. 1-
33). We determined that the benefits of excluding lands within the
conservation bank area from critical habitat designation outweigh the
benefits of including the area, and that their exclusion will not
result in extinction of this species. Therefore, we are excluding 70 ac
(28 ha) of subunit 1C under section 4(b)(2) of the Act (see
``Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion of this exclusion),
[[Page 50464]]
and we are designating the remaining 9 ac (4 ha) of private lands
outside the Manchester Avenue Mitigation Bank as critical habitat (see
``Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion of this exclusion).
(7) In the proposed rule (72 FR 11946; March 14, 2007), we proposed
the exclusion of non-Federal lands covered by the City of San Diego
subarea plan under the MSCP in subunits 2A and 2B and the exclusion of
non-Federal lands covered by the County of San Diego subarea plan under
the MSCP in subunits 2C, 2D, 3A, 3B, 4A, 4B, 4C, and 4D from the
designation of critical habitat under section 4(b)(2) of the Act. In
this final rule, we determined that the benefits of exclusion outweigh
the benefits of inclusion of these lands and that their exclusion will
not result in extinction of this species. Therefore, we excluded all
non-Federal lands in subunits 2A and 2B covered by the City of San
Diego subarea plan and all non-Federal lands in subunits 2C, 2D, 3A,
3B, 4A, 4B, 4C, and 4D covered by the County of San Diego subarea plan,
under section 4(b)(2) of the Act (see ``Exclusions Under Section
4(b)(2) of the Act'' section of this final rule for a detailed
discussion of this exclusion). Federally owned lands in subunits 3B,
4A, and 4C are designated as critical habitat.
(8) In our March 14, 2007, proposed rule (72 FR 11946), we
indicated that all subunits except 3E and 4D were known to be occupied
by the species at the time of listing (October 13, 1998). We now
consider subunits 3E and 4D to have been occupied at the time of
listing. Even though these occurrences were not discovered until after
the species was listed in 1998, over 1,000 plants were recorded at each
of these sites when they were first discovered in 2000 and 2001,
respectively. We believe the large population size indicates that the
occurrences were established for several years prior to their discovery
and were established at the time the species was listed. Acanthomintha
ilicifolia seeds do not disperse in large numbers and any new
population of A. ilicifolia would likely start out small and take
several years to reach a population size greater than 1,000 plants.
Therefore, since these large populations were discovered 2 to 3 years
after listing, we consider all subunits proposed or designated as
critical habitat to have been occupied at the time of listing (see
``Criteria Used To Identify Critical Habitat'' section). We designated
critical habitat in subunit 3E, and we excluded subunit 4D as discussed
above.
(9) We made two corrections to our description of the PCE. First,
in the proposed rule (72 FR 11946; March 14, 2007), we omitted
grassland vegetation as one of the vegetation types in which
Acanthomintha ilicifolia is commonly found. This information was
discussed in the proposed rule, but was inadvertently left out of the
PCE. We included it in the PCE in this final rule. Second, in the
proposed rule (72 FR 11946; March 14, 2007), we indicated that deep
fissures in the clay soils associated with A. ilicifolia are
approximately 2 feet (60 cm) deep. However, there are only
observational discussions and no formal studies on this topic. We
broadened the statement on this habitat feature in the PCE to state
that the fissures in the soil range in depth from approximately 1 to 2
feet (30 to 60 cm).
As a result of the removals and corrections outlined above, a total
of approximately 1,748 ac (707 ha) meets the definition of critical
habitat and is considered essential habitat for Acanthomintha
ilicifolia. We are excluding approximately 1,077 ac (435 ha) of
essential habitat under section 4(b)(2) of the Act because we
determined that the benefits of excluding those lands from the critical
habitat designation outweigh the benefits of including them in the
designation (see ``Exclusions Under Section 4(b)(2) of the Act''
section) . In conclusion, we are designating 671 ac (272 ha) of land in
San Diego County as critical habitat for A. ilicifolia in this final
rule.
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
(ii) Specific areas outside the geographical area occupied by a
species at the time it is listed, upon a determination that such areas
are essential for the conservation of the species.
Conservation, as defined under section 3 of the Act, means 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, or
transplantation.
Critical habitat receives protection under section 7 of the Act
through the prohibition against Federal agencies 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, habitat within the
geographical area occupied by the species at the time it was listed
must contain the physical or biological features that are essential to
the conservation of the species. Critical habitat designations
identify, to the extent known using the best scientific data available,
habitat areas that provide essential life cycle needs of the species
(i.e., areas on which are found those physical and biological features
laid out in the appropriate quantity and spatial arrangement for the
conservation of the species).
Occupied habitat that contains the features essential to the
conservation of the species meets the definition of critical habitat
only if those features may require special management considerations or
protection.
Under the Act, we can designate unoccupied areas as critical
habitat only when we determine that the best available scientific data
demonstrate that the designation of that area is 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
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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. In the case of Acanthomintha
ilicifolia, several botanists and land managers conducted field
assessments and management experiments that were helpful in identifying
the areas that meet the definition of critical habitat. There is no
recovery plan for A. ilicifolia.
Habitat is often dynamic, and species may move from one area to
another over time. Furthermore, we recognize that designation of
critical habitat may not include all of the habitat areas that we may
eventually determine, based on scientific data not now available to the
Service, 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 be required for
recovery of the species.
Areas that support populations, but are outside the critical
habitat designations, will continue to be subject to conservation
actions we implement under section 7 of the Act. They 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 Federal 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
In accordance with section 3(5)(A)(i) of the Act and the
regulations at 50 CFR 424.12, in determining which areas occupied by
the species at the time of listing to designate as critical habitat, we
consider the physical and biological features essential to the
conservation of the species that may require special management
considerations or protection to be the PCEs laid out in the appropriate
quantity and spatial arrangement for the conservation of the species.
These physical and biological features 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, or 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 derived the specific primary constituent element required for
Acanthomintha ilicifolia from its biological needs, as described in the
proposed critical habitat rule published in the Federal Register on
March 14, 2007 (72 FR 11946), and below.
Space for Individual and Population Growth and Normal Behavior
Acanthomintha ilicifolia occurs on isolated patches of clay soils
derived from gabbro and soft calcareous sandstone substrates (Oberbauer
and Vanderwier 1991, pp. 208-209). The soils derived from gabbro
substrates are red to dark brown clay soils, and those derived from
soft calcareous sandstone are gray clay soils. These patches of clay
soils are called ``clay lenses.'' In San Diego County, California, and
northern Baja California, Mexico, clay lenses are known to support a
variety of narrow endemic (restricted to a specific geographic area)
plants. Clay lenses tend to have an open or unpopulated look because
many common species cannot tolerate living on these clay soils. Clay
lenses are typically devoid of woody, perennial shrubs (Oberbauer and
Vanderwier 1991, pp. 208-209) (PCE). Shrubs have difficulty surviving
on these soils because in the rainy winter months these soils become
saturated with water and the large root systems of shrubs are not able
to get oxygen (Oberbauer and Vanderwier 1991, pp. 208-209). Another
reason it is difficult for shrubs to take root and become established
on the clay soil is because as the soils become saturated with water
they expand and when the soils dry they contract and crack. The harsh
conditions that clay soils exhibit make clay lenses a difficult
microhabitat for annual native plants to grow on, which limits the
number and density of common native plants on clay lenses. Due to the
absence of most common native vegetation from clay lenses, the areas
where A. ilicifolia occurs appear as open areas surrounded by areas
populated by denser vegetation.
In addition to the characteristics discussed above, the texture and
structure of the clay lenses are essential for supporting the seedling
establishment and growth of Acanthomintha ilicifolia. This soil
provides many small pockets and deeper fissures where seeds from A.
ilicifolia become lodged as they fall from decomposing plants (Bauder
and Sakrison 1999, p. 28). The seeds stay in the soils until the
temperatures become cooler in the winter months and the soil becomes
saturated with the winter rains (Bauder and Sakrison 1997, p. 28-29).
The seedlings then germinate and grow to mature plants. These plants do
best when they are not crowded or shaded by other plants (Bauder and
Sakrison 1999, p. 12). The loose, crumbly texture of the soil provides
the proper substrate to hold the seed bank and allow for root growth.
Clay lenses are generally inhabited by a specific flora that
consists of forbs, native grasses, and geophytes (perennial plants
propagated by buds on underground bulbs, tubers, or corms, such as
lilies, iris, and onions) (Oberbauer and Vanderwier 1991, pp. 208-209),
which are better adapted to the harsh conditions mentioned above.
Native plant species that characterize the vegetation found with
Acanthomintha ilicifolia on clay lenses include Hesperevax sparsiflora
var. sparsiflora (erect evax), Harpagonella palmeri (Palmer's
grappling-hook), Convolvulus simulans (bindweed), Apiastrum
angustifolium (mock parsley), and Microseris douglasii ssp. platycarpha
(small flowered microseris) (Bauder et al. 1994, pp. 9-10; McMillan
2006, p. 1; Vinje 2006b, pp. 1-2).
Clay lenses generally form on gentle slopes. An analysis of 20
sites where
[[Page 50466]]
Acanthomintha ilicifolia was observed found that the slopes range from
0 to 25 degrees, with the majority of the sites having slopes below 20
degrees (Bauder et al. 1994, pp. 10-11). This study found that many
thriving, natural populations were on slopes that faced southeast,
south, southwest, and west (Bauder et al. 1994, pp. 10-11). Using GIS,
we found that the known populations of A. ilicifolia range in elevation
from sea level to 3,000 ft (914 m). Acanthomintha ilicifolia occurs on
soils mapped as Las Posas, Olivenhain, Redding, Huerhuero, Altamont,
Cieneba, and Linne (Service GIS database; soils described by Bowman
1973, pp. 22-24, 38-40, 54-55, 61-64, 67-68, and 71-72).
Water and Hydrology
The loose, crumbly clay soils that support Acanthomintha ilicifolia
act like a sponge and are saturated by winter rains. The saturation of
these soils allows for seeds of A. ilicifolia to imbibe with water and
germinate in the cool winter months of the Mediterranean-type climate
(Bauder and Sakrison, 1997, p. 32). As such, the species requires a
natural hydrological regime to reproduce. However, we do not have
specific information on the hydrological regime that this species
requires, other than the general characteristics of a Mediterranean-
type climate; therefore, we did not include hydrological regime as a
primary constituent element.
Reproduction and Pollination
The breeding system of Acanthomintha ilicifolia has not been
studied, but it has been determined that other members of the genus
Acanthomintha are self-compatible (Steeck 1995, pp. 27-33). A 1996
study (Bauder and Sakrison 1997, p. 38) found that several insect
species visited the flowers and moved from plant to plant. These
insects represented possible pollinators of A. ilicifolia; however,
none were thought to represent species-specific pollinators (Bauder and
Sakrison 1997, p. 39). Since we do not have information on any species-
specific pollinators that visit A. ilicifolia, we did not include
pollinators as a primary constituent element.
Primary Constituent Element for Acanthomintha ilicifolia
Within the geographical area known to be occupied by Acanthomintha
ilicifolia, at the time of listiing we must identify the physical and
biological features that may require special management considerations
or protection.
In this case, we identified one PCE with multiple parts. All areas
designated as critical habitat for Acanthomintha ilicifolia are
occupied, occur within the species' historic geographic range, and
contain the PCE required to support at least one life history function.
The data provided in the PCE is summarized from existing scientific
data. It is important to note that the variable amounts and timing of
precipitation in southern California do not result in favorable
conditions for A. ilicifolia in every year.
Based on the above needs and our current knowledge of the life
history, biology, and ecology of the species and the requirements of
the habitat to sustain the essential life history functions of the
species, we determined that the PCE for Acanthomintha ilicifolia is:
Clay lenses that provide substrate for seedling establishment and
space for growth and development of Acanthomintha ilicifolia that are:
(a) Within chaparral, grassland, and coastal sage scrub;
(b) On gentle slopes ranging from 0 to 25 degrees;
(c) Derived from gabbro and soft calcareous sandstone substrates
with a loose, crumbly structure and deep fissures approximately 1 to 2
feet (30 to 60 cm); and
(d) Characterized by a low density of forbs and geophytes, and a
low density or absence of shrubs.
This designation encompasses those areas containing the PCE
necessary to support one or more of the species' life history functions
laid out in the appropriate quantity and spatial arrangement for the
conservation of the species. All units and subunits in this designation
contain the PCE and support multiple life processes. As stated in the
``Criteria Used To Identify Critical Habitat'' section of this rule, we
believe that we can conserve Acanthomintha ilicifolia through the
designation of critical habitat within its extant range and are not
including any areas outside of the geographical area occupied by the
species.
Special Management Considerations or Protection
When designating critical habitat, we assess whether the occupied
areas contain features that are essential to the conservation of the
species and that may require special management considerations or
protection.
As stated in the final listing rule, threats to Acanthomintha
ilicifolia include trampling and grazing, the presence of exotic plant
species, off-road vehicles (ORVs), mining, and urbanization (63 FR
54938). Through our review of the existing data on A. ilicifolia, we
conclude that the threats listed in the final listing rule continue to
impact this species and its essential physical and biological features.
Urban development near Acanthomintha ilicifolia populations may
alter the habitat characteristics required by this species. The
destruction of habitat can change the slope and aspect of a site,
making it uninhabitable for A. ilicifolia (PCE 1(b)). The close
proximity of development to populations of A. ilicifolia may affect
other aspects of the site. For example, increased water runoff from
developments may erode the clay lense and change the topography of the
site (Bauder et al. 1994, p. 23) (PCE 1(b and c)).
The introduction of exotic plant species such as Centaurea
melitensis can drastically change the species present in (PCE 1(a)),
and eliminate the open character of, the clay lense habitat (PCE 1(d)).
Centaurea melitensis has been shown, in field and greenhouse
experiments, to negatively effect the biomass (growth) and seed
production (reproduction) of Acanthomintha ilicifolia (Bauder and
Sakrison 1999, p. 16). Populations of A. ilicifolia that are close to
urbanized areas or in areas that are heavily grazed generally have a
high density of exotic plant species (PCE 1(a)). In disturbed soils, C.
melitensis is a common weed. When this and other exotic plant species
become established, they can out-compete A. ilicifolia for light,
water, nutrients, and space. Acanthomintha ilicifolia often grows
larger and at a higher density when competition with exotic weeds is
reduced (Bauder and Sakrison 1999, pp. 12-16; Vinje 2007, p. 10).
The final listing rule (63 FR 54938) discusses the impacts of ORV
activity and trampling. In recent years, the impacts associated with
the use of mountain bikes have been documented to cause similar impacts
(Vinje 2006a, p. 1). Trampling, ORV activity, and mountain bike use in
Acanthomintha ilicifolia habitat can compact the loose, crumbly soils
(PCE 1(c)). Repeated travel over a trail or track degrades the habitat
of A. ilicifolia in two ways: (1) By displacing soil; and (2) by
compacting soil. These activities, in turn, can destroy individual
plants and can reduce the amount of water that can percolate into the
soil, thus reducing the plant's ability to grow and reproduce.
Mining is documented as a threat at two sites known to support
Acanthomintha ilicifolia (63 FR 54938; Bauder et al. 1994, p. 17).
Mining can alter many aspects of A. ilicifolia
[[Page 50467]]
habitat. Heavy machinery can compact or remove clay lenses (PCE 1(c))
or alter the slope of an area (PCE 1(b)). The grading of large areas
adjacent to A. ilicifolia habitat can make those areas vulnerable to
invasion by exotic plant species and lead to the subsequent crowding
and shading of A. ilicifolia habitat (PCE 1(d)). These impacts may in
turn lead to the disruption of the growth and reproduction of A.
ilicifolia.
The protection of habitat for Acanthomintha ilicifolia from
development is the first measure of protection needed for populations
of this species (PCE 1(a)). The control of exotic plant species, the
maintenance and enhancement of clay lense habitat, the control of
incompatible and often illegal activities such as off-road vehicle use
and other unauthorized recreational impacts, and careful oversight of
adjacent activities such as mining, will help to ensure the long-term
conservation for A. ilicifolia and the physical and biological features
essential for the conservation of the species.
Criteria Used To Identify Critical Habitat
As required by section 4(b)(1)(A) of the Act, we use the best
scientific and commercial data available in determining the specific
occupied areas that contain the features essential to the conservation
of species which may require special management considerations or
protection, as well as when determining if any specific areas outside
the geographical area occupied by the species are essential to the
conservation of the species. We only designate areas outside the
geographical area occupied by a species when a designation limited to
its present range would be inadequate to ensure the conservation of the
species (50 CFR 424.12(e)).
Species and plant communities that are protected across their
ranges are expected to have lower likelihoods of extinction (Soule and
Simberloff 1986; Scott et al. 2001, pp. 1297-1300); therefore,
essential habitat should include multiple locations across the entire
range of the species to prevent range collapse and contribute to
recovery of the species. Conserving habitat variability throughout the
range of this species is important to capture the range of habitat
diversity and, potentially, genetic variability, the preservation of
which is likely to ensure the conservation of those Acanthomintha
ilicifolia occurrences that are most likely to persist under future
environmental conditions and to contribute to species recovery. Genetic
variation generally results from the effects of population isolation
and adaptation to locally distinct environments (Lesica and Allendorf
1995, pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt 1996, pp.
291-295). We sought to include the range of ecological conditions in
which A. ilicifolia is found to preserve the genetic variation that may
result from adaptation to local environmental conditions, as documented
in other plant species (e.g., see Hamrick and Godt 1996, pp. 299-301;
Millar and Libby 1991, pp. 150, 152-155). Locations that possess unique
ecological characteristics are those that represent the full range of
environmental variability where A. ilicifolia has evolved, and
therefore, are likely to promote the adaptation of the species to
different environmental conditions and contribute to species recovery.
All critical habitat subunits discussed in this designation are
occupied by the species. Occupied areas were determined from survey
data and element occurrence data in the California Natural Diversity
Database (CNDDB) (CNDDB 2006). For the purpose of this designation, we
assumed that each element occurrence represents a population of
Acanthomintha ilicifolia, except in cases where there are several
element occurrences located within 1 mile (1.6 km) of each other and
the habitat is not fragmented by manmade features. In these cases, we
considered the group of element occurrences as a single population.
Examples of this include the Manchester Avenue Mitigation Bank in
Encinitas (element occurrence (EO) 28, EO 42, and EO 54), McGinty
Mountain near Jamul (EO 21, EO 22, and EO 30), and Viejas and Poser
Mountains near Alpine (EO 12, EO 50, EO 51, EO 62, EO 73, EO 74, and EO
75).
Using GIS data in the areas identified as occupied by this species
as a guide, we identified the areas that contained the physical and
biological features essential to the conservation of Acanthomintha
ilicifolia (the PCE). To map the areas that meet the definition of
critical habitat, we identified areas that contain the PCE in the
quantity and spatial distribution essential for the conservation of
this species using the following criteria: (1) Support populations that
occur on rare or unique habitat within the species' range; (2) support
the largest known populations of A. ilicifolia; or (3) support the most
stable populations of A. ilicifolia. These criteria are explained in
greater detail below. Areas containing the PCE and that meet at least
one of the above criteria were considered to meet the definition of
critical habitat. We included adjacent areas up to 500 ft (128 m) that
contained habitat for A. ilicifolia to capture the full extent of each
population including the seed bank, as this species fluctuates annually
in population density and spatial distribution. Data from past survey
efforts and recent field work conducted by Service biologists
frequently found occurrences of A. ilicifolia located outside the exact
areas where this species was mapped (Bauder et al. 1994, pp. 14-15;
CNDDB 2006, pp. 11, 28-29, and 70; Service unpublished data 2006).
The resulting areas meet the definition of critical habitat. To
evaluate locations occupied by this species we used the CNDDB (CNDDB
2006, pp. 1-74), a survey of A. ilicifolia habitat and populations by
Bauder et al. (1994, pp. 7-23), biological surveys (City of San Diego
2000, pp 2-6; City of San Diego 2001, pp. 1-10; City of San Diego 2003,
pp. 1-11; City of San Diego 2004, pp. 1-7; City of San Diego 2005, pp.
1-5; Conservation Biology Institute 2002, p. A3-1; County of San Diego
2002, p. 17; Dudek and Associates, Inc. 2006, Appendix A, pp. 3-4;
Helix Environmental Planning, Inc. 2002, p. 6; REC Consultants, Inc.
2004, figure 5), and interviews with botanists working on this species
(Kelley 2005, p. 1; McMillan 2006, p. 1; Vinje 2006b, pp. 1-2).
The first criterion we used to identify critical habitat is any
area that supports a population in rare or unique habitat within the
species' range. The majority of areas that currently support
Acanthomintha ilicifolia are on dark brown to reddish brown clay soils
derived from gabbro substrates. Historically, A. ilicifolia also
occurred on gray clay soils that are derived from soft calcareous
sandstone substrates. Conserving unique habitats for A. ilicifolia may
help to reduce the risk of extinction for this species as it may
capture remaining ecological diversity within the range of the species
and contribute to the recovery of this species. This ecological
diversity may be reflected in genetic diversity; however, at this time,
no one has investigated the genetic structure of this species. The only
remaining population on the calcareous clay soil type is northeast of
the intersection of Palomar Airport Road and El Camino Real, in the
City of Carlsbad.
The second criterion we used to identify critical habitat is any
area that supports one of the largest known populations of
Acanthomintha ilicifolia. The CNDDB includes data for this species that
date back to 1978. Populations of this species range from
[[Page 50468]]
just a few individuals to several thousand plants. The majority of the
known populations range from 50 to 2,000 plants. Yet, there are four
populations that stand out as the largest, each having greater than
25,000 plants. These large populations are vital for the conservation
of this species and occur within large blocks of open space that are
less likely to be impacted by edge effects associated with the smaller
populations in highly urbanized areas. Therefore, the conservation of
these large populations will increase the persistence of the species
across its range and the overall recovery of this species. The four
largest populations and the estimated population at each location are:
Sycamore Canyon, 31,000 plants; Slaughterhouse Canyon, 60,000 plants;
Viejas and Poser Mountains, 29,650 plants; and Hollenbeck Canyon,
100,000 plants. These four populations represent approximately 75
percent of the total known plants of this species.
The third criterion we used to identify critical habitat is any
area that supports one of the most stable populations of Acanthomintha
ilicifolia. For the purpose of this critical habitat designation, we
defined the most stable populations as those that contained more than
1,000 plants at least once during the period for which we have survey
data. We evaluated the population data from the CNDDB and determined
that populations with more than 1,000 plants at some time had the
ability to rebound following years with low population numbers.
Therefore, we considered populations with more than 1,000 plants to
have a high probability of persisting into the future and contributing
to the conservation of the species. Although these areas are not free
from exotic plant competitors, these populations have persisted over
time without being out-competed by the exotic plant species present.
This may partially be a result of the low density of exotic plant
species at these locations and, in some cases, the management of exotic
plant species. All of the areas that meet criterion two also meet
criterion three. Five additional areas have populations of A.
ilicifolia that meet criterion three: the southeast portion of the City
of Carlsbad; the Manchester Avenue Mitigation Bank; Los
Pe[ntilde]asquitos Canyon; Sabre Springs; and McGinty Mountain. These
areas support the most stable populations of A. ilicifolia.
All 10 areas that we identified as meeting the criteria for
critical habitat contain the PCE essential for the conservation of this
species. These areas support the only population on calcareous clay
soil, the largest populations, and the most stable populations of
Acanthomintha ilicifolia. Application of these criteria captures the
physical and biological features essential to the conservation of the
species in the appropriate quantity and spatial arrangement and
represents the range of environmental variability for this species.
Although a genetic analysis of A. ilicifolia is not available, these
criteria likely capture the full breadth of important habitat types and
are expected to protect the genetic variability of this species. The
identified habitat areas, if managed for threats to the physical and
biological features, are adequate to ensure the conservation of A.
ilicifolia.
When determining the critical habitat boundaries for this final
rule, we made every effort to avoid including developed areas such as
lands covered by buildings, pavement, and other structures because such
lands lack the PCE for Acanthomintha ilicifolia. 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 structures and the land under them inadvertently left
inside critical habitat boundaries shown on the maps 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 approximately 671 ac (272 ha) of critical
habitat for Acanthomintha ilicifolia in three of the four units
proposed as critical habitat with a total of 10 subunits. Table 2
outlines the areas that meet the definition of critical habitat, the
areas excluded from this final critical habitat, and the area
designated as critical habitat. Table 2 also shows a breakdown of the
critical habitat based on the ownership of these areas. The critical
habitat areas we describe below constitute our current best assessment
of areas designated as critical habitat for A. ilicifolia. In this
section, we did not discuss the details of the areas that are excluded
from critical habitat under section 4(b)(2) of the Act. For more
information on the areas that are excluded, please see the ``Exclusions
Under Section 4(b)(2) of the Act'' section.
Table 2--Areas That Meet the Definition of Critical Habitat for Acanthomintha ilicifolia, Areas Excluded From
This Final Critical Habitat, and Areas Designated as Critical Habitat; Including the Ownership of Each Area
----------------------------------------------------------------------------------------------------------------
Area that meets Area excluded from
Critical habitat unit Land ownership the definition of final critical Area designated as
critical habitat habitat critical habitat
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
County:
1A. Palomar Airport......... Private........... 2 ac (1 ha)....... 2 ac (1 ha)....... 0 ac (0 ha).
State/Local....... 60 ac (24 ha)..... 0 ac (0 ha)....... 60 ac (24 ha).
1B. Southeast Carlsbad...... Private........... 57 ac (23 ha)..... 57 ac (23 ha)..... 0 ac (0 ha).
1C. Manchester.............. Private........... 79 ac (32 ha)..... 70 ac (28 ha)..... 9 ac (4 ha).
Unit 2: Central San Diego
County:
2A. Los Pe[ntilde]asquitos State/Local....... 63 ac (25 ha)..... 63 ac (25 ha)..... 0 ac (0 ha).
Canyon.
2B. Sabre Springs........... Private........... 1 ac (<1 ha)...... 1 ac (<1 ha)...... 0 ac (0 ha).
State/Local....... 51 ac (21 ha)..... 51 ac (21 ha)..... 0 ac (0 ha).
2C. Sycamore Canyon......... Private........... 30 ac (12 ha)..... 30 ac (12 ha)..... 0 ac (0 ha).
State/Local....... 276 ac (112 ha)... 276 ac (112 ha)... 0 ac (0 ha).
2D. Slaughterhouse Canyon... Private........... 77 ac (31 ha)..... 77 ac (31 ha)..... 0 ac (0 ha).
Unit 3: Viejas Mountain and
Poser Mountain:
3A. Viejas Mountain......... Private........... 32 ac (13 ha)..... 32 ac (13 ha)..... 0 ac (0 ha).
3B. Viejas Mountain......... Private........... 141 ac (57 ha).... 141 ac (57 ha).... 0 ac (0 ha).
[[Page 50469]]
Federal........... 52 ac (21 ha)..... 0 ac (0 ha)....... 52 ac (21 ha).
3C. Viejas Mountain......... Federal........... 276 ac (112 ha)... 0 ac (0 ha)....... 276 ac (112 ha).
3D. Viejas Mountain......... Private........... 50 ac (20 ha)..... 0 ac (0 ha)....... 50 ac (20 ha).
Federal........... 32 ac (13 ha)..... 0 ac (0 ha)....... 32 ac (13 ha).
3E. Poser Mountain.......... Federal........... 34 ac (14 ha)..... 0 ac (0 ha)....... 34 ac (14 ha).
3F. Poser Mountain.......... Federal........... 155 ac (63 ha).... 0 ac (0 ha)....... 155 ac (63 ha).
Unit 4: Southern San Diego
County:
4A. McGinty Mountain........ Private........... 18 ac (7 ha)...... 18 ac (7 ha)...... 0 ac (0 ha).
Federal........... 2 ac (1 ha)....... 0 ac (0 ha)....... 2 ac (1 ha).
4B. McGinty Mountain........ Private........... 141 ac (57 ha).... 141 ac (57 ha).... 0 ac (0 ha).
State/Local....... 7 ac (3 ha)....... 7 ac (3 ha)....... 0 ac (0 ha).
4C. McGinty Mountain........ Private........... 27 ac (11 ha)..... 27 ac (11 ha)..... 0 ac (0 ha).
Federal........... 1 ac (<1 ha)...... 0 ac (0 ha)....... 1 ac (<1 ha).
4D. Hollenbeck Canyon....... Private........... 23 ac (9 ha)...... 23 ac (9 ha)...... 0 ac (0 ha).
State Local....... 61 ac (25 ha)..... 61 ac (25 ha)..... 0 ac (0 ha).
-------------------------------------------------------------------------------
Total................... .................. 1,748 ac (707 ha) 1,077 ac (435 ha) 671 ac (272 ha) *.
*. *.
----------------------------------------------------------------------------------------------------------------
* Values in this table may not sum due to rounding and the conversion of values from acres to hectares.
Unit Descriptions
Unit 1: Northern San Diego County
Unit 1 is located in northern San Diego County, California. The
area was occupied at the time of listing, is currently occupied, and
contains the features essential to the conservation of Acanthomintha
ilicifolia that may require special management considerations or
protection for A. ilicifolia. The habitat in Unit 1 is gently sloping
and occurs in the north coastal portion of San Diego County. The
habitat included in this unit provides for the conservation of
populations of this species that are at the lowest elevations where
this species is found. These areas represent coastal terrace terrain
and, therefore, are edaphically and ecologically distinct from the
other units of critical habitat (subunit 1A) (see ``Criteria Used to
Identify Critical Habitat'' section criterion 1). This unit contains
some of the most stable populations of A. ilicifolia (subunits 1B and
1C) (see ``Criteria Used to Identify Critical Habitat'' section
criterion 3). Below, we present a brief description of subunits
designated as critical habitat in this unit.
Subunit 1A, Palomar Airport
Subunit 1A is located in Carlsbad, California, northeast of the
intersection of Palomar Airport Road and El Camino Real. Subunit 1A
consists of 60 ac (24 ha) of land owned by the County of San Diego.
Subunit 1A meets our selection criteria because it supports a
population on a unique soil type (see ``Criteria Used to Identify
Critical Habitat'' section criterion 1). This is the only area where A.
ilicifolia is still known to occupy calcareous clay soils. The features
essential to the conservation of the species in this subunit may
require special management considerations or protection to address
threats from exotic plant species and unauthorized recreational
activities.
A portion of the land that meets the definition of critical habitat
in this area (2 ac (1 ha)) is covered by the Carlsbad HMP of the San
Diego MHCP. We excluded the portion of critical habitat covered by the
Carlsbad HMP from critical habitat because we determined the benefits
of excluding these lands outweigh the benefits of including these lands
in a critical habitat designation. Furthermore, exclusion of these
lands will not result in the extinction of this species (see Table 3
and ``Exclusions Under Section 4(b)(2) of the Act'' section of this
final rule for a detailed discussion of this exclusion).
Subunit 1B, Southeast Carlsbad
Subunit 1B is located in Carlsbad, California, east of Calle Acervo
and west of Paseo Esmerado. All lands within this subunit (57 ac (23
ha)) are covered by the Carlsbad HMP of the San Diego MHCP. We excluded
the lands covered by the Carlsbad HMP under the MHCP in this subunit
because we determined that the benefits of excluding these lands
outweigh the benefits of including these lands in a critical habitat
designation. Furthermore, exclusion of these lands will not result in
the extinction of this species (see Table 3 and ``Exclusions Under
Section 4(b)(2) of the Act'' section of this final rule for a detailed
discussion of this exclusion).
Subunit 1C, Manchester
Subunit 1C is located in Encinitas, California, northeast of the
intersection of Manchester Avenue and South El Camino Real. Subunit 1C
consists of 9 ac (4 ha) of private land. Subunit 1C meets our selection
criteria because it supports one of the most stable populations of
Acanthomintha ilicifolia (criterion 3). The features essential to the
conservation of the species in this subunit may require special
management considerations or protection to address threats from exotic
plant species and unauthorized recreational activities.
The majority of the land that meets the definition of critical
habitat in this area (70 ac (28 ha)) is in the Manchester Avenue
Mitigation Bank. The Manchester Avenue Mitigation Bank is owned and
managed by the Center for Natural Lands Management (CNLM). There is
long-term management in place on this site to conserve several
sensitive species, including Acanthomintha ilicifolia (Spiegelberg
2005, p. 1). We excluded the portion of critical habitat covered by the
Manchester Habitat Conservation Area Management Plan (Spiegelberg 2005)
from critical habitat because we determined that the benefits of
excluding these lands outweigh the benefits of including these lands in
a critical habitat designation; exclusion of these lands will not
result in the extinction of this species (see Table 3 and ``Exclusions
Under Section 4(b)(2)
[[Page 50470]]
of the Act'' section of this final rule for a detailed discussion of
this exclusion).
Unit 2: Central San Diego County
Unit 2 is located in an east-west line starting in the County of
San Diego on private land east of the Sycamore Canyon/Goodan Ranch
Preserve (subunit 2D), occurring on County-owned open space in the
Sycamore Canyon/Goodan Ranch Preserve (subunit 2C), occurring on City
of San Diego-owned land in Los Pe[ntilde]asquitos Canyon near the
border or the City of San Diego and the City of Poway (subunit 2B), and
occurring in Pe[ntilde]asquitos Canyon Preserve (subunit 2A). The unit
was occupied at the time of listing, is currently occupied, and
contains the features essential to the conservation of Acanthomintha
ilicifolia that may require special management considerations or
protection for A. ilicifolia. This unit contains some of the largest
populations of A. ilicifolia (subunits 2C and 2D) (criterion 2) and
some of the most stable populations of A. ilicifolia (subunits 2A and
2B) (criterion 3). All lands that meet the definition of critical
habitat in Unit 2 are covered by either the City of San Diego subarea
plan (subunits 2A and 2B) or the County of San Diego subarea plan
(subunits 2C and 2D) under the San Diego MSCP and are excluded from the
designation. We determined that the benefits of excluding these lands
outweigh the benefits of including these lands in the designation and
that exclusion of these lands will not result in the extinction of this
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the
Act'' section of this final rule for a detailed discussion of this
exclusion).
Unit 3: Viejas Mountain and Poser Mountain
Unit 3 is located in San Diego County, California, on Viejas
Mountain and Poser Mountain. The area was occupied at the time of
listing, is currently occupied, and contains the features essential to
the conservation of Acanthomintha ilicifolia that may require special
management considerations or protection for A. ilicifolia. Unit 3 is
divided into six subunits, five of which are designated as critical
habitat. Due to the proximity of the occurrences in this area and the
fact that the habitat is not fragmented by any manmade barriers, we
consider these occurrences to be a single population of A. ilicifolia.
Unit 3 is designated as critical habitat because it supports one of the
largest recorded populations of the species (criterion 2). This
population is estimated to have greater than 25,000 plants based on the
maximum number of plants observed at the different CNDDB element
occurrences (EO 12, 6,650 plants in 1991 (subunit 3F); EO 50, 5,600
plants in 1994 (subunit 3B); EO 51, 8,300 plants in 2003 (subunit 3C);
EO 62, 1,115 plants in 2000 (subunit 3C); EO 73, 8,750 plants in 1997;
and EO 74, 2,000 plants in 2000 (subunit 3E)). The habitat in unit 3 is
more mountainous than the other units and provides for the conservation
of this species at the highest elevations where this species is found.
Therefore, this unit is ecologically distinct from the other units of
critical habitat and provides for the largest population of A.
ilicifolia as measured by the area occupied by the species. Below, we
present a brief description of subunits designated as critical habitat
in this unit.
Subunit 3A, Viejas Mountain
Subunit 3A is located east of Peutz Valley Road on the western
flank of Viejas Mountain. All lands that meet the definition of
critical habitat in this area (32 ac (13 ha)) are covered by the County
of San Diego subarea plan of the San Diego MSCP. We excluded the lands
covered by the County of San Diego subarea plan in this subunit because
we determined that the benefits of excluding these lands outweigh the
benefits of including these lands in a critical habitat designation.
Furthermore, exclusion of these lands will not result in the extinction
of this species (see Table 3 and ``Exclusions Under Section 4(b)(2) of
the Act'' section of this final rule for a detailed discussion of this
exclusion).
Subunit 3B, Viejas Mountain
Subunit 3B is located east of Alpine, California, and north of
Interstate 8 on the western slope Viejas Mountain. Subunit 3B consists
of 52 ac (21 ha) of land in the Cleveland National Forest (CNF) owned
by the U.S. Forest Service (USFS). This subunit was occupied by the
species at the time of listing and is currently occupied. Subunit 3B
meets our selection criteria because this subunit is part of one of the
largest recorded populations of Acanthomintha ilicifolia (criterion 2).
The features essential to the conservation of the species in this
subunit may require special management considerations or protection to
address the threat from exotic plant species and recreational
activities.
The privately owned lands that meet the definition of critical
habitat in this area (141 ac (57 ha)) are covered by the County of San
Diego subarea plan of the San Diego MSCP. We excluded the lands covered
by the County of San Diego subarea plan in this subunit because we
determined that the benefits of excluding these lands outweigh the
benefits of including these lands in a critical habitat designation and
that exclusion of these lands will not result in the extinction of this
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the
Act'' section of this final rule for a detailed discussion of this
exclusion).
Subunit 3C, Viejas Mountain
Subunit 3C is located east of Alpine, California, and north of
Interstate 8 on southern slope of Viejas Mountain. Subunit 3C consists
of 276 ac (112 ha) of land in the CNF owned by the USFS. This subunit
was occupied by the species at the time of listing and is currently
occupied. Subunit 3C meets our selection criteria because this subunit
is part of one of the largest recorded populations of Acanthomintha
ilicifolia (criterion 2). The features essential to the conservation of
the species in this subunit may require special management
considerations or protection to address the threat from exotic plant
species and recreational activities.
Subunit 3D, Viejas Mountain
Subunit 3D is located east of Alpine, California, and north of
Interstate 8 on the eastern slope of Viejas Mountain. Subunit 3D
consists of 32 ac (13 ha) of land in the CNF owned by the USFS and 50
ac (20 ha) of private land. This subunit was occupied by the species at
the time of listing and is currently occupied. Subunit 3D meets our
selection criteria because this subunit is part of one of the largest
recorded populations of Acanthomintha ilicifolia (criterion 2). The
features essential to the conservation of the species in this subunit
may require special management considerations or protection to address
the threat from exotic plant species and recreational activities.
Subunit 3E, Poser Mountain
Subunit 3E is located east of Alpine, California, and north of
Interstate 8 on western slope of Poser Mountain. Subunit 3E consists of
34 ac (14 ha) of land in the CNF owned by the USFS. This subunit was
occupied by the species at the time of listing and is currently
occupied. Subunit 3E meets our selection criteria because this subunit
is part of one of the largest recorded populations of Acanthomintha
ilicifolia (criterion 2). The features essential to the conservation of
the species in this subunit may require
[[Page 50471]]
special management considerations or protection to address the threat
from exotic plant species and recreational activities.
Subunit 3F, Poser Mountain
Subunit 3F is located east of Alpine, California, and north of
Interstate 8 on southern slope of Poser Mountain. Subunit 3F consists
of 155 ac (63 ha) of land in the CNF owned by the USFS. This subunit
was occupied by the species at the time of listing and is currently
occupied. Subunit 3F meets our selection criteria because this subunit
is part of one of the largest recorded populations of Acanthomintha
ilicifolia (criterion 2). The features essential to the conservation of
the species in this subunit may require special management
considerations or protection to address the threat from exotic plant
species and recreational activities.
Unit 4: Southern San Diego County
Unit 4 is located in southern San Diego County, California near the
City of Jamul. The area was occupied at the time of listing, is
currently occupied, and contains the features essential to the
conservation of Acanthomintha ilicifolia that may require special
management considerations or protection. This critical habitat unit
contains some of the largest populations of A. ilicifolia (subunit 4D)
(criterion 2) and some of the most stable populations of A. ilicifolia
(subunits 4A, 4B, and 4C) (criterion 3). The habitat for A. ilicifolia
in southern San Diego County is located in proximity to rural
residential development and in relatively undeveloped areas. Below, we
present a brief description of subunits designated as critical habitat
in this unit.
Subunits 4A and 4C, McGinty Mountain
Subunits 4A and 4C are located east of Jamul, California, on the
southwestern slope of McGinty Mountain. The land designated is part of
the San Diego National Wildlife Refuge (SDNWR) and is owned by the
Service. We are designating 3 ac (1 ha) of critical habitat in subunits
4A and 4C for Acanthomintha ilicifolia. These subunits were occupied by
the species at the time of listing and are currently occupied. Subunits
4A and 4C meet our selection criteria because these subunits are part
of one of the most stable populations of A. ilicifolia (criterion 3).
The features essential to the conservation of the species in subunits
4A and 4C may require special management considerations or protection
to address the threat from exotic plant species and recreational
activities.
The non-Federal lands that meet the definition of critical habitat
in this area (18 ac (7 ha) in subunit 4A and 27 ac (11 ha) in subunit
4C) are covered by the County of San Diego subarea plan of the San
Diego MSCP. We excluded the lands covered by the County of San Diego
subarea plan under the MSCP in this subunit because we have determined
that the benefits of excluding these lands outweigh the benefits of
including these lands in a critical habitat designation and that
exclusion of these lands will not result in the extinction of this
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the
Act'' section of this final rule for a detailed discussion of this
exclusion).
Subunit 4B, McGinty Mountain
All of the lands in subunit 4B that meet the definition of critical
habitat in this area (148 ac (60 ha)) are non-Federal and are covered
by the County of San Diego subarea plan of the San Diego MSCP. We
excluded the lands covered by the County of San Diego subarea plan
under the MSCP in this subunit because we determined that the benefits
of excluding these lands outweigh the benefits of including these lands
in the critical habitat designation, and that exclusion of these lands
will not result in the extinction of this species (see Table 3 and
``Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion of this exclusion).
Subunit 4D, Hollenbeck Canyon
All of the lands in subunit 4D that meet the definition of critical
habitat in this area (84 ac (34 ha)) are non-Federal and are covered by
the County of San Diego subarea plan of the San Diego MSCP. We excluded
the lands in this subunit because we determined that the benefits of
excluding these lands outweigh the benefits of including these lands in
a critical habitat designation, and that exclusion of these lands will
not result in the extinction of this species (see Table 3 and
``Exclusions Under Section 4(b)(2) of the Act'' section of this final
rule for a detailed discussion of this exclusion).
Table 3 below provides approximate areas (ac (ha)) of lands that
meet the definition of critical habitat, but are excluded from this
final critical habitat designation. Table 3 provides our reason for the
exclusion. Also see the ``Exclusions Under Section 4(b)(2) of the Act''
section of this final rule for detailed discussion of the exclusions
listed in Table 3.
Table 3--Exclusions Under Section 4(b)(2) of the Act by Critical Habitat Subunit
----------------------------------------------------------------------------------------------------------------
Reason for exclusion Areas meeting the
Critical habitat unit and under section 4(b)(2) definition of critical Areas excluded from
subunit description of the act habitat critical habitat
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
County:
1A. Palomar Airport *....... Carlsbad HMP under the 62 ac (25 ha)............ 2 ac (1 ha).*
MHCP.
1B. Southeast Carlsbad...... Carlsbad HMP under the 57 ac (23 ha)............ 57 ac (23 ha).
MHCP.
1C. Manchester *............ Manchester Avenue 79 ac (32 ha)............ 70 ac (28 ha).*
Mitigation Bank.
Unit 2: Central San Diego
County:
2A. Los Pe[ntilde]asquitos City of San Diego 63 ac (25 ha)............ 63 ac (25 ha).
Canyon. subarea plan under the
MSCP.
2B. Sabre Springs........... City of San Diego 52 ac (21 ha)............ 52 ac (21 ha).
subarea plan under the
MSCaP.
2C. Sycamore Canyon......... County of San Diego 306 ac (124 ha).......... 306 ac (124 ha).
subarea plan under the
MSCP.
2D. Slaughterhouse Canyon... County of San Diego 77 ac (31 ha)............ 77 ac (31 ha).
subarea plan under the
MSCP.
Unit 3: Viejas Mountain and
Poser Mountain:
3A. Viejas Mountain......... County of San Diego 32 ac (13 ha)............ 32 ac (13 ha).
subarea plan under the
MSCP.
3B. Viejas Mountain *....... County of San Diego 193 ac (78 ha)........... 141 ac (57 ha).*
subarea plan under the
MSCP.
Unit 4: Southern San Diego
County:
[[Page 50472]]
4A. McGinty Mountain *...... County of San Diego 20 ac (8 ha)............. 18 ac (7 ha).*
subarea plan under the
MSCP.
4B. McGinty Mountain........ County of San Diego 148 ac (60 ha)........... 148 ac (60 ha).
subarea plan under the
MSCP.
4C. McGinty Mountain *...... County of San Diego 28 ac (11 ha)............ 27 ac (11 ha).*
subarea plan under the
MSCP.
4D. Hollenbeck Canyon....... County of San Diego 84 ac (34 ha)............ 84 ac (34 ha).
subarea plan under the
MSCP.
----------------------------------------------------------------------------------------------------------------
* A portion of these subunits have been designated as critical habitat.
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 destroy or adversely modify 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 (or retain the current ability for the primary constituent
elements to be functionally established) to serve its intended
conservation role for the species.
If a species is listed or critical habitat is designated, section
7(a)(2) of the Act requires Federal agencies to ensure that activities
they authorize, fund, or carry out are not likely to jeopardize the
continued existence of the species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency (action agency)
must enter into consultation with us. As a result of this consultation,
we document compliance with the requirements of section 7(a)(2) through
our issuance of:
(1) A concurrence letter for Federal actions that may affect, but
are not likely to adversely affect, listed species or critical habitat;
or
(2) A biological opinion for Federal actions that may affect, and
are likely to adversely affect, listed species or critical habitat.
When we issue a biological opinion concluding that a project is
likely to jeopardize the continued existence of a listed species or
destroy or adversely modify critical habitat, we also provide
reasonable and prudent alternatives to the project, if any are
identifiable. We define ``Reasonable and prudent alternatives'' at 50
CFR 402.02 as alternative actions identified during consultation that:
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 Acanthomintha ilicifolia or its
designated critical habitat require section 7 consultation under the
Act. Activities on State, Tribal, local, or private lands requiring a
Federal permit (such as a permit from the 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 subject to the section 7 consultation
process. Federal actions not affecting listed species or critical
habitat, and actions on State, Tribal, local or private lands that are
not federally funded, authorized, or permitted, do not require section
7(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, or would retain its current ability
for the primary constituent elements to be functionally established.
Activities that may destroy or adversely modify critical habitat are
those that alter the PCE to an extent that appreciably reduces the
conservation value of critical habitat for Acanthomintha ilicifolia.
Generally, the conservation role of A. ilicifolia critical habitat
units is to support viable core populations 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 those activities involving a Federal action that may destroy or
adversely modify such habitat, or those activities that may be affected
by such designation.
Activities that, when carried out, funded, or authorized by a
Federal agency, may affect critical habitat and
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therefore should result in consultation for Acanthomintha ilicifolia
include, but are not limited to:
(1) Actions that disturb or remove the clay soils (PCE 1(c)) within
a subunit of critical habitat. Such activities include, but are not
limited to, clearing areas for development and roads, creation of
trails, and installation of pipelines or other underground
infrastructure. These activities could eliminate or reduce the habitat
necessary for the growth and reproduction of Acanthomintha ilicifolia.
(2) Actions that introduce exotic plant species or alter the
natural habitat in a way that increases the likelihood for the invasion
of exotic plant species (PCE 1(d)). Such activities include, but are
not limited to, the introduction of fill dirt to development sites
adjacent to Acanthomintha ilicifolia critical habitat, grading areas
for agriculture, clearing native vegetation, and the use of mountain
bikes and off-highway vehicles. These activities could create space for
populations of exotic plants to grow and then invade A. ilicifolia
habitat or bring the seeds of exotic plants into A. ilicifolia habitat,
thus filling the open space needed for the growth and reproduction (PCE
1(b)) of this species with exotic plant competitors.
(3) Actions that alter the hydrology of critical habitat subunits.
Such activities include, but are not limited to, runoff from developed
streets, runoff from irrigated landscapes, and increased flow or
erosion from storm drains. These activities could alter the timing and
amount of water that Acanthomintha ilicifolia plants receive, altering
their phenology and fecundity. These activities could also cause the
erosion of the clay soils (PCE 1(b and c)) that are necessary for the
growth of A. ilicifolia. Please see the ``Special Management
Considerations or Protection'' section for a more detailed discussion
on the impacts of these actions to the listed species.
We consider all of the subunits designated as critical habitat, as
well as those that are excluded from the final designation, to contain
the features essential to the conservation of Acanthomintha ilicifolia.
All subunits are within the geographic area occupied by the species at
the time of listing and are currently occupied by A. ilicifolia (see
``Summary of Changes From Proposed Rule'' section of this final rule
and the proposed rule (72 FR 11946; March 14, 2007) for more
information on the occupied subunits). Federal agencies already consult
with us on activities in areas occupied by A. ilicifolia or if the
species may be affected by the action to ensure that their actions do
not jeopardize the continued existence of A. ilicifolia.
Exclusions
Application of Section 4(b)(2) of the Act
Section 4(b)(2) of the Act states that the Secretary must designate
and revise critical habitat on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. The Secretary may exclude an
area from critical habitat if he determines that the benefits of such
exclusion outweigh the benefits of specifying such area as part of the
critical habitat, unless he determines, based on the best scientific
data available, that the failure to designate such area as critical
habitat will result in the extinction of the species. In making that
determination, the legislative history is clear that the Secretary has
broad discretion regarding which factor(s) to use and how much weight
to give to any factor.
Under section 4(b)(2) of the Act, in considering whether to exclude
a particular area from the designation, we must identify the benefits
of including the area in the designation, identify the benefits of
excluding the area from the designation, and determine whether the
benefits of exclusion outweigh the benefits of inclusion. If based on
this analysis we make this determination, then we can exclude the area
only if such exclusion would not result in the extinction of the
species.
In the following sections, we address a number of general issues
that are relevant to the exclusions we consider. Additionally, the
Service conducted a draft economic analysis (draft EA) of the impacts
of the proposed critical habitat designation and related factors. The
draft EA was made available for public review and comment from November
27, 2007, to December 27, 2007 (72 FR 66122). We then reopened the
comment period on the draft EA from May 13, 2008, to June 12, 2008 (73
FR 27483). We did not receive any comments on the draft EA during these
open comment periods. Based on the draft EA, the proposed critical
habitat, and the information in this revised final designation of
critical habitat, we excluded areas from critical habitat under the
provisions of section 4(b)(2) of the Act and our implementing
regulations at 50 CFR 424.19; however, we did not exclude any areas for
economic reasons.
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 or
protected, could provide for the survival and recovery of the species.
The identification of areas that contain features essential for the
conservation of the species, which if managed or protected, will
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 for conservation of the species within the geographical area
occupied by the species at the time of listing, as well as to determine
other areas essential to the conservation of the species. The
designation process includes peer review and public comment on the
identified physical and biological features and areas. This process is
valuable to land owners and managers in developing conservation
management plans for identified areas, as well as any other occupied
habitat or suitable habitat that may not be included in the Service's
determination of essential habitat.
The consultation provisions under section 7(a)(2) of the Act
constitute the regulatory benefits of critical habitat. As discussed
above, Federal agencies must consult with us on actions that may affect
critical habitat and must avoid destroying or adversely modifying
critical habitat. Federal agencies must also consult with us on actions
that may affect a listed species and refrain from undertaking actions
that are likely to jeopardize the continued existence of the species.
Thus, the analysis of effects to critical habitat is a separate and
different analysis from that of the effects to the species. Therefore,
the difference in outcomes of these two analyses represents the
regulatory benefit of critical habitat. For some species, and in some
locations, the outcome of these analyses will be similar, because
effects on habitat will often result in effects on
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the species. However, the regulatory standard is different, as the
jeopardy analysis looks at the action's impact on survival and recovery
of the species and 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 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 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 to the conservation of the
species are not appreciably reduced. Critical habitat designation
alone, however, does not require private property owners to undertake
specific steps toward recovery of the species.
Once an agency determines that consultation under section 7(a)(2)
of the Act is necessary, the process may conclude informally when the
Service concurs 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 formal consultation is initiated. Formal consultation concludes
with a biological opinion issued by the Service 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
determination of no destruction or adverse modification may contain
discretionary conservation recommendations to minimize adverse effects
to primary constituent elements, but it would not suggest the
implementation of any reasonable and prudent alternative. We suggest
reasonable and prudent alternatives to the proposed Federal action only
when our biological opinion results in an adverse modification
conclusion.
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 is
initiated under 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 institute proactive actions over the lands they
encompass and are 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 regulatory benefit of critical
habitat is low when compared to the conservation benefit that can be
achieved through implementing Habitat Conservation Plans (HCPs) under
section 10 of the Act or other habitat management plans. The
conservation acheived through such plans is typically greater than what
we achieve through multiple site-by-site, project-by-project, section 7
consultations involving consideration of critical habitat. Management
plans commit resources to implement long-term management and protection
for particular habitat for at least one and possibly other listed or
sensitive species. Section 7 consultations only commit Federal agencies
to preventing adverse modification of critical habitat caused by the
particular project, and they are not committed to provide conservation
or long-term benefits to areas not affected by the proposed action.
Thus, implementation of an HCP or management plan that incorporates
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 Acanthomintha ilicifolia. 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 informs 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 cooperation of non-Federal landowners. More than 60 percent of
the United States is privately owned (National Wilderness Institute
1995), and at least 80 percent of endangered or threatened species
occur either partially or solely on private lands (Crouse et al. 2002).
Stein et al. (1995) found that only about 12 percent of listed species
were found almost exclusively on Federal lands (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 understanding the status of species on non-Federal lands,
and necessary for us to implement recovery actions such as
reintroducing listed species, habitat restoration, and habitat
protection.
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
consultations. In the past decade, we have encouraged non-Federal
landowners to enter into conservation agreements, based on a view that
we can achieve greater species conservation on non-Federal land through
such partnerships than we can through regulatory methods (61 FR 63854;
December 2, 1996).
Many private landowners, however, are wary of the possible
consequences of encouraging endangered species to their property, and
there is mounting
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evidence that some regulatory actions by the Federal Government, while
well-intentioned and required by law, can (under certain circumstances)
have unintended negative consequences for the conservation of species
on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews
2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a
decline in their property value due to real or perceived restrictions
on land-use options where threatened or endangered species are found.
Consequently, harboring endangered species is viewed by many landowners
as a liability. 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 negative outcome is
greatly amplified in situations where active management measures (such
as reintroduction, fire management, and 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 than critical habitat alone.
The purpose of designating critical habitat is to contribute to the
conservation of threatened and endangered species and the ecosystems
upon which they depend. The outcome of the designation, triggering
regulatory requirements for actions funded, authorized, or carried out
by Federal agencies under section 7(a)(2) of the Act, can sometimes be
counterproductive to its intended purpose on non-Federal lands. Thus
the benefits of excluding areas that are covered by partnerships or
voluntary conservation efforts can often be high.
Benefits of Excluding Lands With HCPs or Other Approved Management
Plans
The benefits of excluding lands with HCPs or other approved long-
term management plans from critical habitat designation include
relieving landowners, communities, and counties of any additional
regulatory burden that might be imposed by critical habitat. Most HCPs
and other conservation plans take years to develop, and upon
completion, are consistent with recovery objectives for listed species
that are covered within the plan area. Many also provide conservation
benefits to unlisted sensitive species. Although the Act does not
prohibit the take of listed plant species (so there is no requirement
to cover listed plant species in an HCP), we encourage non-Federal
public and private landowners to include protections for listed plants
in their plans. Imposing an additional regulatory review as a result of
the designation of critical habitat of a listed plant species, in
particular, may undermine our efforts to encourage inclusion of plant
species in HCPs and undermine other conservation efforts and
partnerships as well. 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 for a plant species 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 or elect to exclude the plant
species from the plan, in part because of the strength of the perceived
additional regulatory compliance that such designation would entail.
The time and cost of regulatory compliance for a critical habitat
designation do not have to be quantified for them to be perceived as
additional Federal regulatory burden sufficient to discourage continued
participation in developing plans targeting listed species'
conservation.
A related benefit of excluding lands covered by approved HCPs and
management plans that cover listed plant species 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. Designating lands within
approved management plan areas as critical habitat would likely have a
negative effect on our ability to establish new partnerships to develop
these plans, particularly plans that address landscape-level
conservation of plant species and habitats. By excluding these lands,
we preserve our current partnerships and encourage additional
conservation actions in the future.
Both HCPs and Natural Communities Conservation Plan (NCCP)-HCP
applications require consultation, which would review the effects of
all HCP-covered activities that might adversely impact the species
under a jeopardy standard, including possibly significant habitat
modification, even without the critical habitat designation.
Additionally, all other Federal actions that may affect the listed
species still require consultation under section 7(a)(2) of the Act,
and we review these actions for possibly significant habitat
modification in accordance with the jeopardy standard under Section 7.
The information provided in the previous section applies to all the
following discussions of benefits of inclusion or exclusion of critical
habitat.
Areas Considered for Exclusion Under Section 4(b)(2) of the Act
At the request of the USFS, we evaluated the appropriateness of
excluding Federal lands in the CNF from the final designation of
critical habitat for Acanthomintha ilicifolia under section 4(b)(2) of
the Act based on management provided under the USFS LMP and
specifically under the Species Management Guide developed for the CNF
(USFS 1991). As indicated in our response to Comment 13 in the ``Public
Comments'' section above, we have concluded based on the record before
us not to exclude Forest Service lands in this instance. Therefore, as
previously discussed we are designating approximately 549 ac (222 ha)
of Forest Service lands in subunits 3B, 3C, 3D, 3E, and 3F as critical
habitat for A. ilicifolia.
Exclusions Under Section 4(b)(2) of the Act
After considering the following areas under section 4(b)(2) of the
Act, we are excluding them from the critical habitat designation for
Acanthomintha ilicifolia. We are excluding approximately 59 ac (24 ha)
of non-Federal lands from the A. ilicifolia critical habitat
designation in subunits 1A and 1B that are covered by the Carlsbad HMP
within the San Diego Multiple Species Habitat Program (MHCP) plan area.
We are excluding approximately 948 ac (383 ha) of non-Federal lands
from the A. ilicifolia critical habitat designation in subunits 2A; 2B;
2C; 2D; 3A; 3B; 4A; 4B; 4C; and
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4D that are within San Diego Multiple Species Conservation Program
(MSCP) plan area. These lands are covered by the City of San Diego
subarea plan under the MSCP and the County of San Diego subarea plan
under the MSCP. Additionally, we are excluding 70 ac (28 ha) of private
land from the A. ilicifolia critical habitat designation in subunit 1C
that is within the Manchester Avenue Mitigation Bank. A detailed
analysis of our exclusion of these lands under section 4(b)(2) of the
Act is provided in the paragraphs below.
We excluded these areas because we believe that:
(1) Their value for conservation will be preserved for the
foreseeable future by existing protective actions; or
(2) They are appropriate for exclusion under the ``other relevant
impact'' provisions of section 4(b)(2) of the Act.
In the paragraphs below, we provide a detailed analysis of our
exclusion of these lands under section 4(b)(2) of the Act.
Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of
the Act
In reviewing approved HCPs for potential exclusion under section
4(b)(2) of the Act, we consider (in addition to the general partnership
relationships identified above) whether the plan provides for
protection and appropriate management, if necessary, of essential
habitat within the plan area and whether the plan incorporates
conservation management strategies and actions consistent with
currently accepted principles of conservation biology.
We believe the framework plans and associated subarea plans
discussed in the paragraphs below fulfill these criteria. Therefore, we
are excluding lands covered by these subarea plans that provide for the
conservation of Acanthomintha ilicifolia from the final designation of
critical habitat.
Carlsbad HMP Under the San Diego Multiple Habitat Conservation Program
(MHCP)
The San Diego MHCP is a comprehensive, multi-jurisdictional
planning program designed to create, manage, and monitor an ecosystem
preserve in northwestern San Diego County. The MHCP is a framework plan
that has been in place for 5 years. It is also a regional subarea plan
under the State of California's Natural Communities Conservation Plan
(NCCP) program and was developed in cooperation with California
Department of Fish and Game (CDFG). The MHCP is designed to be
implemented through approved individual subarea plans. The MHCP
preserve system is intended to protect viable populations of native
plant and animal species and their habitats in perpetuity, while
accommodating continued economic development and quality of life for
residents of northern San Diego County. The MHCP includes an
approximately 112,000-ac (45,324-ha) study area within the cities of
Carlsbad, Encinitas, Escondido, San Marcos, Oceanside, Vista, and
Solana Beach.
Under the MHCP framework plan, the majority of all known
Acanthomintha ilicifolia populations fall within Focused Planning Areas
(FPA) (core areas and linkages important for conservation of sensitive
species) and will be conserved at levels of 95 to 100 percent.
According to the MHCP, 91 percent of the major populations and critical
locations of Acanthomintha ilicifolia (as identified in the MHCP) in
the study area will be conserved under the FPA design. In addition to
the conserved populations, an estimated 3,403 acres of potentially
suitable habitat will be conserved as a result of the existing preserve
design and preserve policies. Any populations that fall outside of FPAs
will be conserved at a minimum 80 percent level based on the Narrow
Endemic Plant Policy. The Narrow Endemic Policy requires the
conservation of new populations of narrow endemic species (80 percent
outside of FPAs) and mitigation for unavoidable impacts as well as
management practices designed to achieve no net loss of narrow endemic
populations. Additionally, cities that apply for subarea permits cannot
permit more than 5 percent gross cumulative loss of narrow endemic
populations or occupied acreage within the FPAs and no more than 20
percent cumulative loss of narrow endemic locations, population
numbers, or occupied acreage outside of FPAs (AMEC Earth and
Environmental, Inc. 2003).
The City of Carlsbad received a permit on their individual subarea
plan under the MHCP framework plan on November 9, 2004. Approximately 2
ac (1 ha) of land in subunit 1A and all of the approximately 57 ac (23
ha) of land in subunit 1B are protected by the Carlsbad subarea plan
also known as the Carlsbad Habitat Management Plan (HMP). Acanthomintha
ilicifolia is a conditionally covered species under the Carlsbad HMP.
``Conditional'' coverage means that the City of Carlsbad receives
coverage for this species as identified in the associated biological
opinion, as long as the City complies with the conservation measures
outlined in the HMP. Under the HMP, coverage for Acanthomintha
ilicifolia is also conditional until the City of San Marcos completes
their subarea plan under the MHCP. However, in developing this critical
habitat rule we did not identify any lands in San Marcos that meet the
definition of critical habitat as described in the ``Criteria Used to
Identify Critical Habitat'' section. Therefore, we believe it is
appropriate to exclude essential habitat protected by the Carlsbad HMP
where the City of Carlsbad has demonstrated compliance with the
conservation measures for A. ilicifolia required to be implemented by
the City under the HMP.
Consistent with the framework provided under the MHCP, the Carlsbad
HMP contains requirements to conserve and adaptively manage
Acanthomintha ilicifolia habitats and provide for the conservation of
this species' PCE, thereby contributing to the recovery of this
species. The Carlsbad HMP will provide management and monitoring for A.
ilicifolia at several sites, including approximately 2 ac (1 ha) of
habitat in subunit 1A managed by the Center for Natural Lands
Management. All of the land in subunit 1A addressed by the Carlsbad HMP
is actively managed; activities that benefit A. ilicifolia in subunit
1A include mapping and census projects, removal of nonnative invasive
species, and the restoration of areas degraded by past human use
(Tierra Data, Inc. 2005, pp. 34-63; Carlsbad HMP 2004, p. D-97). All of
the approximately 57 ac (23 ha) of land in subunit 1B was preserved in
perpetuity prior to the creation of the Carlsbad HMP. These lands are
signed and fenced and are a component of Carlsbad's habitat preserve.
Management of the conserved land in subunit 1B remains the
responsibility of the private owner of the open space area; however,
the future management of this area will be bolstered by the inclusion
of this area in the Carlsbad HMP. The management approaches developed
for Acanthomintha ilicifolia in other areas will be easily applied to
subunit 1B because the area is part of the Carlsbad HMP.
The Carlsbad HMP also incorporates many processes to ensure that
the Service has an active role in proper implementation of the HCP. For
example, Habitat Management Plans, reviewed and approved by the
Service, must be developed for each preserve area within the Carlsbad
HMP, and monitoring and management objectives must be established for
each preserve. Progress towards meeting these objectives is measured
through the submission of annual reports. There are also regular
coordination meetings
[[Page 50477]]
between the Service and the City of Carlsbad to discuss on-going
conservation issues. Under the Carlsbad HMP the City must account
annually for the progress it is making in assembling conservation
areas. The City is required to provide the Service with an annual
report that includes, both by project and cumulatively, the habitat
acreage destroyed and conserved within the HMP. This accounting process
ensures that habitat conservation proceeds in rough proportion to
habitat loss and is in compliance with the Carlsbad HMP and associated
implementing agreement.
All of the lands that meet the definition of critical habitat
within the boundaries of the Carlsbad HMP are already conserved under
the plan. Consistent with the Narrow Endemic Policy and FPA design of
the MHCP framework plan, additional populations of A. ilicifolia beyond
the two areas we identified that meet the definition of critical
habitat are also conserved under Carlsbad's subarea plan. Conservation
of these additional populations will contribute to the ultimate
recovery of this species. Although not all areas placed in conservation
are actively managed under the plan at this time, we believe the
Carlsbad HMP will conserve A. ilicifolia within its boundaries because
A. ilicifolia is one of the focus species for this plan and the City of
Carlsbad has an interest to conserve this species throughout the
Carlsbad HMP area. The extent of habitat preservation and management
that has taken place due to implementation of the Carlsbad HMP since it
was permitted in 2004 is significant, and demonstrates the City of
Carlsbad's commitment to fully implement this HCP.
In the 1998 final rule listing this species as threatened (63 FR
54938; October 13, 1998), we identified habitat destruction and
fragmentation from urban development; off-road vehicle activity; non-
native, invasive plant species; livestock trampling and grazing; and
mining as primary threats to the species. The Carlsbad HMP incorporates
conservation measures to address these threats into the management of
its preserve area, which will include the entire preserve area
including subunits 1A and 1B. The Carlsbad HMP provides protection and
appropriate management for Acanthomintha ilicifolia, its habitat, and
its PCE through implementation of conservation strategies that are
consistent with generally accepted principles of conservation biology.
The Carlsbad HMP preserves habitat that supports identified core
populations of this species and provides for its recovery.
Benefits of Inclusion--Carlsbad HMP
The inclusion of approximately 2 ac (1 ha) of land in subunit 1A
and all of the approximately 57 ac (23 ha) of land in subunit 1B could
be beneficial because it identifies lands to be managed for the
conservation and recovery of Acanthomintha ilicifolia. The process of
proposing and finalizing a critical habitat provided the Service with
the opportunity to determine the features or PCEs essential for
conservation of the species within the geographical area occupied by
the species at the time of listing, as well as to determine other areas
essential to the conservation of the species. The designation process
includes peer review and public comment on the identified features and
areas. This process is valuable to landowners and managers in
developing conservation management plans for identified areas, as well
as any other occupied habitat or suitable habitat that may not have
been included in the Service's determination of essential habitat.
However, identification of important habitat for A. ilicifolia within
the City of Carlsbad and efforts to conserve the species and its
habitat were initiated through development of the Carlsbad HMP prior to
the proposed critical habitat rule and will continue into the future.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts already in
place or underway on the 2 ac (1 ha) of land in subunit 1A and all of
the approximately 57 ac (23 ha) of land in subunit 1B that are
protected under the Carlsbad HMP. The process of developing the MHCP
and Carlsbad HMP has involved extensive public review and impute and
the involvment of several Federal, state, and local government partners
including (but not limited to): The City of Carlsbad; California
Department of Fish and Game; the Service; and other Federal agencies.
Therefore, the educational benefits of designating the private lands in
Unit 1 (Pan Hot Springs Meadow) as critical habitat are minimal.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of designating lands as critical
habitat. As discussed above, Federal agencies must consult with us on
actions that may affect critical habitat and must avoid destroying or
adversely modifying critical habitat. However, all of the approximately
57 ac (23 ha) of land in subunit 1B that is being excluded is protected
open space on private property, with no expected Federal nexus for
future consultation for Acanthomintha ilicifolia. Therefore,
designating this area as critical habitat is unlikely to provide a
regulatory benefit under section 7(a) of the Act. The approximately 2
ac (1 ha) of land in subunit 1A is also privately owned and protected
from future development with no expected Federal nexus for future
consultation; therefore, we do not anticipate a regulatory benefit
result from designation of such lands.
Benefits of Exclusion--Carlsbad HMP
The City of Carlsbad HMP provides substantial protection and
management for Acanthomintha ilicifolia and its essential habitat
features in contrast to designation of critical habitat, which only
precludes destruction or adverse modification. Moreover, the
educational benefits that result from critical habitat designation,
including informing the public of areas that are necessary for the
long-term conservation of the species, are already in place both as a
result of material provided on our Web site and through public notice-
and-comment procedures required to establish the MHCP and the Carlsbad
HMP. Finally, we have not identified a likely Federal nexus for future
section 7 consultations on lands in subunit 1A and subunit 1B because
the lands are privately owned and already protected from development;
therefore, we do not anticipate a regulatory benefit from designation.
In contrast to the lack of an appreciable benefit of including
these lands as critical habitat, the exclusion of these lands from
critical habitat will help preserve the partnerships that we developed
with the City of Carlsbad in the development of the MHCP and Carlsbad
subarea plan. As discussed above, many landowners perceive critical
habitat as an unfair and unnecessary regulatory burden given the
expense and time involved in developing and implementing complex
regional and jurisdiction-wide HCPs, such as the MHCP and Carlsbad HMP.
For these reasons, we believe that designating critical habitat has
little benefit in the City of Carlsbad, and such minor benefit is
outweighed by the benefit of maintaining partnerships with the City and
private landowners covered by the Carlsbad HMP.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Carlsbad HMP
We reviewed and evaluated the benefits of inclusion and the
benefits of exclusion of lands covered by the Carlsbad HMP as critical
habitat for Acanthomintha ilicifolia. Based on this evaluation, we find
that the benefit of excluding lands in areas covered by the City of
Carlsbad HMP under the MHCP
[[Page 50478]]
outweighs the benefit of including those lands as critical habitat for
A. ilicifolia.
Exclusion Will Not Result in Extinction of the Species--Carlsbad HMP
Exclusion of these 59 ac (24 ha) of non-Federal lands from the
final designation of critical habitat will not result in the extinction
of Acanthomintha ilicifolia because these lands are permanently
conserved and are or will be managed for the benefit of this species
under the Carlsbad HMP under the MHCP. The jeopardy standard of section
7 and routine implementation of habitat protection through the section
7 process also provide assurances that the species will not go extinct.
The protections afforded to A. ilicifolia under the jeopardy standard
will remain in place for the areas excluded from critical habitat.
San Diego Multiple Species Conservation Program (MSCP)--City and County
Subarea Plans
The MSCP is a framework plan that has been in place for more than
10 years. The plan area encompasses 582,243 ac (235,626 ha) (County of
San Diego 1997, p. 1-1; MSCP 1998, pp. 2-1, 4-2--4-4) and provides for
the conservation of 85 federally listed and sensitive species
(``covered species''), including Acanthomintha ilicifolia, through the
establishment of approximately 171,920 ac (69,574 ha) of preserve lands
within the Multi-Habitat Planning Area (MHPA) (City of San Diego) and
Pre-Approved Mitigation Areas (PAMA) (County of San Diego). The MSCP
was developed in support of applications for incidental take permits
for several covered species by 12 participating jurisdictions and many
other stakeholders in southwestern San Diego County. Under the umbrella
of the MSCP, each of the 12 participating jurisdictions is required to
prepare a subarea plan that implements the goals of the MSCP within
that particular jurisdiction. Four of the 12 jurisdictions include
areas that support A. ilicifolia: The City of San Diego, the City of
Chula Vista, the County of San Diego, and the City of Poway, all of
which have approved subarea plans. Areas that we determined meet the
definition of critical habitat are within the subarea plans for the
City of San Diego and the County of San Diego. The Service issued
permits to the City of San Diego on June 6, 1997 (Service 1997), and to
the County of San Diego on March 12, 1998 (Service 1998), based on
their subarea plans.
Upon completion of preserve assembly, approximately 171,920 ac
(69,574 ha) of the 582,243 ac (235,626 ha) MSCP plan area will be
preserved (MSCP 1998, pp. 2-1, 4-2--4-4). The City of San Diego's
preserve is delineated by mapped preserve boundaries referred to as
``hardline'' boundaries (i.e., MHPA). County of San Diego preserve
areas do not have ``hardline'' boundaries, but the County's subarea
plan identifies areas where mitigation activities should be focused to
assemble its preserve areas (i.e., PAMA). Those areas of the MSCP
preserve that are already conserved as well as those areas that are
designated for inclusion in the preserve under the plan are referred to
as the ``preserve area'' in this final designation. When the preserve
is completed, the public sector (i.e., Federal, State, and local
government, and general public) will have contributed 108,750 ac
(44,010 ha) (63.3 percent) to the preserve, of which 81,750 ac (33,083
ha) (48 percent) was existing public land when the MSCP was established
and 27,000 ac (10,927 ha) (16 percent) will have been acquired. At
completion, the private sector will have contributed 63,170 ac (25,564
ha) (37 percent) to the preserve as part of the development process,
either through avoidance of impacts or as compensatory mitigation for
impacts to biological resources outside the preserve. Federal and State
governments, local jurisdictions and special districts, and managers of
privately owned lands currently, and in the future will manage and
monitor their lands in the preserve for species and habitat protection
(MSCP 1998, pp. 2-1, 4-2--4-4).
Private lands within the MHPA and PAMA are subject to special
restrictions on development, and lands that are dedicated to the
preserve must be legally protected and permanently managed to conserve
the covered species. Public lands owned by the City, County, State of
California, and the Federal Government that are identified for
conservation under the MSCP must also be protected and permanently
managed to protect the covered species.
Numerous processes are incorporated into the MSCP that allow for
Service oversight of the MSCP implementation. For example, the MSCP
imposes annual reporting requirements and provides for Service review
and approval of proposed subarea plan amendments and preserve boundary
adjustments and for Service review and comment on projects during the
California Environmental Quality Act review process. The Service also
chairs the MSCP Habitat Management Technical Committee and the
Monitoring Subcommittee (MSCP 1998, pp. 5-11--5-23. Each MSCP subarea
plan must account annually for the progress it is making in assembling
conservation areas. The Service must receive annual reports that
include, both by project and cumulatively, the habitat acreage
destroyed and conserved within the subareas. This accounting process
ensures that habitat conservation proceeds in rough proportion to
habitat loss and in compliance with the MSCP subarea plans and the
plans' associated implementing agreements.
The subarea plans under the MSCP contain requirements to monitor
and adaptively manage Acanthomintha ilicifolia habitats and provide for
the conservation of this species' PCE. The framework and area-specific
management plans are comprehensive and address a broad range of
management needs at the preserve and species levels that are intended
to reduce the threats to covered species and thereby contribute to the
recovery of the species. These plans include the following: (1) Fire
management; (2) public access control; (3) fencing and gates; (4)
ranger patrol; (5) trail maintenance; (6) visitor/interpretive and
volunteer services; (7) hydrological management; (8) signage and
lighting; (9) trash and litter removal; (10) access road maintenance;
(11) enforcement of property and/or homeowner requirements; (12)
removal of invasive species; (13) nonnative predator control; (14)
species monitoring; (15) habitat restoration; (16) management for
diverse age classes of covered species; (17) use of herbicides and
rodenticides; (18) biological surveys; (19) research; and (20) species
management conditions (MSCP 1998).
Eight major populations of Acanthomintha ilicifolia are included
within preserve lands under the MSCP, each of which will be conserved
from 80 to 100 percent, with 85 percent overall coverage. In 10 years
of implementing the City and County of San Diego's subarea plans,
approximately 787 ac (319 ha), or 83 percent, of lands that meet the
definition of critical habitat for A. ilicifolia have already been
conserved. An additional 72 ac (28 ha) are inside the PAMA and MHPA,
and, although they have not yet been formally committed to the
preserve, these lands are reasonably assured of conservation for A.
ilicifolia (see Table 4) in accordance with the subarea plans.
Similarly, although some areas placed in conservation are not yet fully
managed, such management will occur over time as the subarea plans
continue to be implemented. The extent of habitat preservation and
management that has taken place to date through implementation of the
MSCP and its subarea plans in the City and County of
[[Page 50479]]
San Diego is significant, and demonstrates the City and County of San
Diego's commitment to fully implement the MSCP.
Table 4--Non-Federal Lands Within the MSCP Plan Area Excluded From Critical Habitat Designation and the
Conservation of These Lands Under the MSCP *
----------------------------------------------------------------------------------------------------------------
Lands within the
Critical habitat unit Land ownership Currently PAMA or MHPA; not Lands at risk of
conserved yet conserved development
----------------------------------------------------------------------------------------------------------------
2A. Los Pe[ntilde]asquitos State/Local....... 63 ac (25 ha).....
Canyon.
2B. Sabre Springs............... Private........... .................. 1 ac (<1 ha)......
State/Local....... 45 ac (19 ha)..... 1 ac (<1 ha)...... 5 ac (2 ha).
2C. Sycamore Canyon............. Private........... .................. 30 ac (12 ha).....
State/Local....... 276 ac (112 ha)...
2D. Slaughterhouse Canyon....... Private........... 77 ac (31 ha).....
3A. Viejas Mountain............. Private........... 25 ac (10 ha)..... .................. 7 ac (3 ha).
3B. Viejas Mountain............. Private........... 80 ac (32 ha)..... .................. 61 ac (25 ha).
4A. McGinty Mountain............ Private........... 17 ac (7 ha)...... 1 ac (<1 ha)......
4B. McGinty Mountain............ Private........... 139 ac (56 ha).... 2 ac (1 ha).......
State/Local....... 7 ac (3 ha).......
5+7+61+164C. McGinty Mountain... Private........... 22 ac (9 ha)...... 5 ac (2 ha).......
4D. Hollenbeck Canyon........... Private........... .................. 7 ac (3 ha)....... 16 ac (6 ha).
State Local....... 61 ac (25 ha).....
-------------------------------------------------------------------------------
Total....................... .................. 787 ac (319 ha)... 72 ac (28 ha)..... 89 ac (36 ha).
----------------------------------------------------------------------------------------------------------------
* Values in this table may not sum due to rounding and the conversion of values from acres to hectares.
Approximately 166 ac (67 ha) of lands that meet the definition of
critical habitat are outside the PAMA and MHPA boundaries (preserve
areas) (see Table 4); however, of these 166 ac (67 ha), 77 ac (31 ha)
in subunit 2D are currently being conserved under an ``existing-use
permit'' issued by the County of San Diego to the landowner in this
subunit for the continued operation of an adjacent sand and gravel
mining operation. As part of the ``existing-use permit'' the landowner
is required to keep portions of the property as open space. Therefore,
we believe that only 89 ac (36 ha), or 9 percent of the total 948 ac
(383 ha) that meet the definition of critical habitat within the plan
area of the MSCP, could potentially be developed. Consistent with the
narrow endemics requirements of the MSCP, the remaining 89 ac (36 ha)
will be surveyed for Acanthomintha ilicifolia prior to any development
occurring on these lands. Under the City of San Diego's subarea plan,
impacts to narrow endemic plants, including A. ilicifolia, inside the
MHPA will be avoided and outside the MHPA will be protected as
appropriate by: (1) Avoidance; (2) management; (3) enhancement; and/or
(4) transplantation to areas identified for preservation (City of San
Diego 1997, pp. 105-106; Service 1997, p. 15). Under the County of San
Diego's subarea plan, narrow endemic plants, including A. ilicifolia,
are conserved under the Biological Mitigation Ordinance using a process
that: (1) Requires avoidance to the maximum extent feasible; (2) allows
for a maximum 20 percent encroachment into a population if total
avoidance is not feasible; and (3) requires mitigation at the 1:1 to
3:1 (in kind) for impacts if avoidance and minimization of impacts
would result in no reasonable use of the property (County of San Diego
(BMO) 1997, p. 11; Service 1998, p. 12). These measures help protect A.
ilicifolia and its essential habitat whether located on lands targeted
for preserve status within the MHPA and PAMA or located outside of
those areas. The narrow endemic policy for both the City of San Diego
and County of San Diego subarea plans require in situ conservation of
A. ilicifolia or mitigation to ameliorate any habitat loss. Therefore,
although some losses may occur to this species within the 89 ac (36 ha)
of lands that are not currently preserved or otherwise designated for
conservation under the MSCP, the preservation, conservation, and
management of A. ilicifolia provided under the City and County MSCP
subarea plans ensures the long-term conservation of this species and
its habitat within all areas addressed by the subarea plans under the
MSCP.
We are excluding from the final critical habitat designation for
Acanthomintha ilicifolia all non-Federal lands (i.e., approximately 948
ac (383 ha) of lands that meet the definition of critical habitat)
within the City of and County of San Diego's subarea plans under
section 4(b)(2) of the Act (see Table 4). The non-Federal lands we are
excluding include: 63 ac (25 ha) public lands in the City of San
Diego's Los Pe[ntilde]asquitos Canyon Preserve (subunit 2A); 52 ac (21
ha) of public and private lands in Los Pe[ntilde]asquitos Canyon east
of Interstate 15 near Sabre Springs (subunit 2B); 306 ac (124 ha) of
public and private lands in and adjacent to the Goodan Ranch and
Sycamore Canyon Open Space County Park (subunit 2C); 77 ac (31 ha) of
private lands in Slaughterhouse Canyon (subunit 2D); 32 ac (13 ha) of
private lands on the western flank of Viejas Mountain (subunit 3A); 141
ac (57 ha) of private lands on the southwestern flank of Viejas
Mountain (subunit 3B); 18 ac (7 ha) of private lands on the northern
portion of McGinty Mountain (subunit 4A); 148 ac (60 ha) of public and
private lands on the central portion of McGinty Mountain (subunit 4B);
27 ac (11 ha) of private lands on the southern portion of McGinty
Mountain (subunit 4C); and 84 ac (34 ha) of public and private lands in
and adjacent to the Hollenbeck Wildlife Area (subunit 4D).
In the 1998 final rule listing this species as threatened (63 FR
54938; October 13, 1998), we identified habitat destruction and
fragmentation from urban development, off-road vehicle activity,
nonnative invasive plant species, livestock trampling and grazing, and
mining as primary threats to the species. As described above, the MSCP
provides protection and appropriate management for Acanthomintha
[[Page 50480]]
ilicifolia, its habitat, and its PCE through implementation of
conservation strategies that are consistent with generally accepted
principles of conservation biology. The MSCP preserves habitat that
supports identified core populations of this species and provides for
its recovery.
Benefits of Inclusion--MSCP
The inclusion of approximately 948 ac (383 ha) of non-Federal lands
within the MSCP could be beneficial because it identifies lands to be
managed for the conservation and recovery of Acanthomintha ilicifolia.
The process of proposing and finalizing a critical habitat rule
provided the Service with the opportunity to determine the features or
PCEs essential for conservation of the species within the geographical
area occupied by the species at the time of listing, as well as to
determine other areas essential to the conservation of the species. The
designation process includes peer review and public comment on the
identified features and areas. This process is valuable to land owners
and managers in developing conservation management plans for identified
areas, as well as any other occupied habitat or suitable habitat that
may not have been included in the Service's determination of essential
habitat. Identification of important habitat and habitat features for
A. ilicifolia within the City of San Diego and the County of San Diego
and efforts to conserve the species and its habitat were initiated
prior to the proposed critical habitat rule through the development of
the MSCP framework plan and the City and County MSCP subarea plans and
will continue into the future.
We believe that some losses may occur to Acanthomintha ilicifolia
within the 89 ac (36 ha) of lands that are not currently preserved or
otherwise designated for conservation under the MSCP. Therefore, the
benefits of inclusion of these lands within designated critical habitat
are higher than for those lands within the PAMA or MHPA because the
protections are less.
The educational benefits of designation are small and largely
redundant to those derived through conservation efforts already in
place or underway on the approximately 948 ac (383 ha) of non-Federal
lands within the MSCP subarea plans. The process of developing the MSCP
has involved several partners including (but not limited to) the 12
participating jurisdictions, California Department of Fish and Game,
the Service and other Federal agencies. Therefore, the educational
benefits of designating the non-Federal lands in subunits 2A, 2B, 2C,
2D; 3A; 3B; 4A, 4B, 4C, and 4D as critical habitat are minimal
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of designating land as critical
habitat. As discussed above, Federal agencies must consult with us on
actions that may affect critical habitat and must avoid destroying or
adversely modifying critical habitat. However, all of the approximately
948 ac (383 ha) of non-Federal lands in subunits 2A, 2B, 2C, 2D; 3A;
3B; 4A, 4B, 4C, and 4D that is being excluded is on non-Federal land
and lacks an expected Federal nexus for future section 7 consultation
on Acanthomintha ilicifolia. Therefore, designating these areas as
critical habitat is unlikely to provide a regulatory benefit under
section 7(a) of the Act
Benefits of Exclusion--City and County Subarea Plans
The City and County MSCP subarea plans provide for protection and
active management of the features essential to the conservation of
Acanthomintha ilicifolia on lands in subunits 2A, 2B, 2C, 2D; 3A; 3B;
4A, 4B, 4C, and 4D, in contrast to the designation of critical habitat,
which only precludes destruction or adverse modification of essential
habitat. Moreover, the educational benefits that result from critical
habitat designation, including informing state and local governments,
landowners and the public of areas that are necessary for the long-term
conservation of the species, are already in place both as a result of
material provided on our Web site and through public notice-and-comment
procedures required to establish the MSCP and City and County subarea
plans. Finally, we did not identify a likely regulatory benefit from
designation of the City or County lands because the lands are non-
Federal and we are not aware of a Federal nexus that would trigger
future section 7 consultation for A. ilicifolia on these lands.
We acknowledge that there are 89 acres of private and State lands
that contain essential habitat features that are located outside of the
City MHPA and County PAMA lands identified for conservation under the
MSCP subarea plans, and are potentially at risk of development.
However, as discussed above, these lands are subject either to City of
San Diego's the narrow endemic species requirements or to the County's
Biological Mitigation Ordinance, both of which provide substantial
protection for A. ilicifolia and its habitat. While there could be some
additional benefits to designating the 89 acres as critical habitat, we
continue to believe the potential benefits would be minor. As discussed
above, the development of the MSCP and subarea plans has already
resulted in public identification of lands important to the
conservation of A. ilicifolia. Additionally, development of the MSCP
and subarea plans resulted in the creation and implementation of
conservation measures identified in the subarea plans to protect the
species and its essential habitat, both within and outside of the City
and County preserve areas, thus minimizing any additional educational
benefit from designation. Further, as is the case for all of the other
MSCP lands excluded from the designation, none of the 89 acres is
Federal land, and we are not aware of a Federal nexus that would
trigger future section 7 consultation with regard to the lands.
Therefore, we do not anticipate a regulatory benefit from designation
of these lands.
We developed and continue to maintain close partnerships with the
City of San Diego, the County of San Diego, other local jurisdictions,
and several other stakeholders through the development of the MSCP, a
plan that incorporates appropriate protections and management for
Acanthomintha ilicifolia, its habitat, and the features essential for
the conservation of this species. Those protections are consistent with
statutory 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. As we discussed above under ``Benefits of Excluding
Lands With HCPs or Other Approved Management Plans'', by excluding
these lands from designation, we are helping to preserve our ongoing
partnerships with the City and County permittees and to encourage 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 A.
ilicifolia.
Benefits of Exclusion Outweigh the Benefits of Inclusion--City and
County Subarea Plans
We reviewed and evaluated the exclusion of approximately 948 ac
(383 ha) of non-Federal lands within the MSCP from the designation of
final critical habitat. We determined that the regulatory benefit of
designating non-Federal lands in subunits 2A, 2B, 2C, 2D, 3A, 3B, 4A,
4B, 4C, and 4D is minimal because none of the excluded
[[Page 50481]]
lands have an expected Federal nexus that would trigger a future
section 7 consultation for Acanthomintha ilicifolia or its essential
habitat. Furthermore, any potential regulatory benefits would be small
because 91 percent of essential A. ilicifolia habitat within the plan
area is assured of conservation and management under the MSCP and the
89 acres of essential habitat for A. ilicifolia within the City and
County that occur outside of the MHPA and PAMA and are subject to
possible future development, receive substantial protection under City
and County subarea plan measures established to protect this species.
The educational benefits of critical habitat designation are also
small. Those benefits, which include informing the public of areas that
are necessary for the long-term conservation of the species, are
already in place both as a result of material provided on our Web site
and through public notice-and-comment procedures required to establish
the MSCP and City and County subarea plans. The minimal educational and
potential regulatory benefits of including non-Federal lands covered by
the City and County MSCP subarea plans are small when compared to the
impact such a designation could have on our current and future
partnerships. Designation of lands covered by the MSCP may discourage
other partners from seeking or completing subarea plans under the MSCP
framework plan or from pursing other HCPs. Therefore, we determined
that the minor benefits of critical habitat designation are outweighed
by benefits of exclusion in consideration of the relevant impact to
current and future partnerships as summarized above, and in the
``Conservation Partnerships on Non-Federal Lands'' section. As
discussed above, the City and County MSCP subarea plans will provide
for significant preservation and management of habitat for A.
ilicifolia and will help reach the recovery goals for this species.
Exclusion Will Not Result in Extinction of the Species--City and County
MSCP Subarea Plans
Exclusion of these 948 ac (383 ha) of non-Federal lands from the
final designation of critical habitat will not result in the extinction
of Acanthomintha ilicifolia because virtually all of the lands
determined to contain the features essential to the conservation of
this species either are already or will be permanently conserved and
managed for the benefit of this species and its PCE under the approved
MSCP subarea plans. Currently, the majority of these lands are part of
the preserve area and are receiving management that benefits the
species. Importantly, as we stated in our biological opinion for the
City of San Diego subarea plan under the MSCP (Service 1997) and the
County of San Diego subarea plan under the MSCP, while some loss of
habitat for A. ilicifolia is anticipated due to implementation of the
MSCP, implementation of the plan will not jeopardize the continued
existence of this species.
The jeopardy standard of section 7(a)(2) of the Act and routine
implementation of habitat protection through the section 7(a)(2)
process also provide assurances that the species will not go extinct.
The protections afforded to Acanthomintha ilicifolia under the jeopardy
standard will remain in place for the areas excluded from critical
habitat.
Other Lands With Management That Benefits Acanthomintha
ilicifolia--Exclusions Under Section 4(b)(2) of the Act
Manchester Habitat Mitigation Bank Area
The Manchester Avenue Mitigation Bank encompasses 123 ac (50 ha) in
Encinitas, California. The Manchester Avenue Mitigation Bank was
approved by the Service and CDFG in 1996. The primary goal of creating
the Manchester Avenue Mitigation Bank was to protect the federally
listed coastal California gnatcatcher (Polioptila californica
californica), Arctostaphylos glandulosa ssp. crassifolia (Del Mar
manzanita), and Acanthomintha ilicifolia, as well as 15 other plant and
animal species that are known to be ``sensitive'' or ``rare'' species
in the area. The Manchester Avenue Mitigation Bank overlaps with 70 ac
(28 ha) of subunit 1C and is covered by the 2005-2010 Management Plan,
developed by the Center for Natural Lands Management (CNLM) when they
took responsibility for the ownership and management of the Manchester
Avenue Mitigation Bank (Spiegelberg 2005, pp. 1-33).
Ongoing management and monitoring activities conducted by the CNLM
on the Manchester Avenue Mitigation Bank benefit Acanthomintha
ilicifolia, its habitat, and the features essential for the
conservation of this species. Specifically, the CNLM conducts annual
monitoring of the population of A. ilicifolia within the Manchester
Avenue Mitigation Bank and uses adaptive management techniques to
support this species and its PCE. CNLM has fenced areas where this
species occurs to exclude adverse impacts from recreation. The CNLM
conducts annual removal of nonnative, invasive species from the areas
where A. ilicifolia occurs. The CNLM also facilitates the recovery of
this species by providing educational opportunities for students from
La Costa Canyon High School and Rancho Santa Ana Botanic Garden to use
the preserve for field trips and research. Local residents are educated
about the conservation occurring on the Manchester Avenue Mitigation
Bank through information about this species and other rare species that
the CNLM posts at kiosks throughout the Manchester Avenue Mitigation
Bank on trails open to the public. The CNLM works with the Service and
CDFG to implement research projects funded under section 6 of the Act.
The Manchester Avenue Mitigation Bank is an important part of the City
of Encinitas' open space areas and future habitat preserve under the
City of Encinitas draft subarea plan under the MHCP. The CNLM regularly
meets with representatives from the City of Encinitas to ensure the
City's cooperation in preservation of the Manchester Avenue Mitigation
Bank. The partnerships that exist on the Manchester Avenue Mitigation
Bank result in the conservation of A. ilicifolia and its essential
habitat and help increase knowledge of this species through ongoing
education and research programs facilitated by the CNLM.
Benefits of Inclusion--Manchester Habitat Mitigation Bank Area
The inclusion of 70 ac (28 ha) of land in the Manchester Avenue
Mitigation Bank could be beneficial because it identifies lands to be
managed for the conservation and recovery of Acanthomintha ilicifolia.
The process of proposing and finalizing a critical habitat rule
provided the Service with the opportunity to determine the features or
PCEs essential for conservation of the species. The designation process
includes peer review and public comment on the identified features and
areas. This process is valuable to land owners and managers in
developing conservation management plans for identified areas, as well
as any other occupied habitat or suitable habitat that may not have
been included in the Service's determination of essential habitat.
However, identification of important habitat and habitat features for
A. ilicifolia within the area covered by Manchester Avenue Mitigation
Bank and efforts to conserve the species and its habitat were initiated
prior to the proposed critical habitat rule through the development of
the
[[Page 50482]]
mitigation bank and will continue into the future. The educational
benefits of designation are largely redundant to those derived from
ongoing conservation efforts already being implemented on the 70 ac (28
ha) of non-Federal lands within the Manchester Avenue Mitigation Bank.
Therefore, the educational benefits of designating the private lands in
subunit 1C as critical habitat are minimal.
The consultation provisions under section 7(a) of the Act
constitute the regulatory benefits of inclusion for critical habitat.
As discussed above, Federal agencies must consult with us on actions
that may affect critical habitat and must avoid destroying or adversely
modifying critical habitat. Because all of the mitigation bank lands
are permenently protected from development and dedicated to the
protection of Acanthomintha ilicifolia and other sensitive species, the
likelihood of a Federal action occuring on these lands that could
result in an adverse modification of the species essential habitat
feature is extremely small. Moreover, all of the 70 ac (28 ha) of non-
Federal lands within the Manchester Avenue Mitigation Bank that is
being excluded is on private property, and we are not aware of a
Federal nexus that would trigger future section 7 consultation in this
area. Therefore, we do not anticipate a regulatory benefit under
Section 7(a)(2) from designation of lands within the Manchester Avenue
Mitigation Bank.
Benefits of Exclusion--Manchester Avenue Mitigation Bank Area
The 2005-2010 Management Plan for the Manchester Avenue Mitigation
Bank (Spiegelberg 2005, pp. 1-33) provides for conservation of bank
lands in a coordinated, integrated manner. The protection and active
management of Acanthomintha ilicifolia and its essential habitat
features on Manchester Avenue Mitigation Bank lands conserves A.
ilicifolia at this site and directly contributes to the survival and
recovery of this species in contrast to designation of critical
habitat, which only precludes destruction or adverse modification of
essential habitat. Moreover, the educational benefits that result from
critical habitat designation, including informing the public of areas
that are necessary for the long-term conservation of the species, are
already in place both as a result of the development of the Manchester
Avenue Mitigation Bank and the ongoing, substantial public outreach
that is conducted by CNLM manager of the bank, and the involvement of
the public and local government representatives in the day-to-day
operation of the bank.
Finally, we did not identify a likely Federal nexus for future
section 7 consultations on lands within the Manchester Avenue
Mitigation Bank because the lands are privately owned and already
protected from development; therefore, we do not anticipate a
regulatory benefit from designation.
In contrast to the lack of an appreciable educational or regulatory
benefit of including these lands as critical habitat, the exclusion of
these lands from critical habitat will help preserve the partnerships
that we developed with CNLM, the California Department of Fish and
Game, and the City of Encinitas, all of which were involved with the
creation and remain involved with the management of the Manchester
Avenue Mitigation Bank. As discussed above, many landowners and local
jurisdictions perceive critical habitat as an unfair and unnecessary
regulatory burden given the expense and time involved in developing and
implementing conservation plans such as the Manchester Avenue
Mitigation Bank. The exclusion of this area signals to other private
landowners that if they take steps to put their lands into
conservation, they may avoid an additional layer of regulation, which,
as we described above in the ``Conservation Partnerships on Non-Federal
Lands'' section, sometimes acts as a disincentive for private
landowners.
Benefits of Exclusion Outweigh the Benefits of Inclusion--Manchester
Habitat Conservation Area Management Plan
We reviewed and evaluated the proposed designation of essential
habitat in the Manchester Avenue Mitigation Bank and determined that
the benefits of excluding critical habitat on 70 ac (28 ha) of land in
the Manchester Avenue Mitigation Bank outweigh the benefits of
designating these lands as critical habitat. This area, now owned by
the CNLM, is protected by a conservation easement and the permanent
management of this area is funded by an endowment supported by a
Property Analysis Record (PAR). These measures provide assurance that
the features essential to the conservation of Acanthomintha ilicifolia
at the Manchester Avenue Mitigation Bank site will be permanently
protected and managed to conserve this species. In light of the
conserved status of the lands and the absence of an expected Federal
nexus for future section 7 consultation on these privately owned lands,
we conclude that the potential regulatory benefit of designating this
area as critical habitat is minimal. Likewise, educational benefit of
designation is also small and largely redundant to the educational
benefit already provided though CNLM's ongoing environmental education
programs to promote public understanding and appreciation of the
natural resources on the Manchester Avenue Mitigation Bank as
summarized above. The minimal educational and potential regulatory
benefits of including the privately owned Manchester Avenue Mitigation
Bank in critical habitat are small when compared to the impact such a
designation could have on our current and future partnerships.
Designation of lands covered by the bank may discourage other private
landowners from seeking or completing similar conservation efforts.
Therefore, we conclude that the minor benefits of critical habitat
designation are outweighed by benefits of exclusion in consideration of
the relevant impact to current and future partnerships as summarized
above, and in the ``Conservation Partnerships on Non-Federal Lands''
section. As discussed above, Manchester Avenue Mitigation Bank will
provide for significant preservation and management of habitat for A.
ilicifolia and will help reach the recovery goals for this species.
Exclusion Will Not Result in Extinction of the Species--Manchester
Habitat Conservation Area Management Plan
The exclusion of 70 ac (28 ha) of private lands in the Manchester
Avenue Mitigation Bank from the final critical habitat designation will
not result in the extinction of Acanthomintha ilicifolia because these
lands are permanently conserved and managed for the benefit of this
species under the agreements in place for the Manchester Avenue
Mitigation Bank. The management activities implemented on the
Manchester Avenue Mitigation Bank provide for the enhancement and
preservation of the features essential to the conservation of A.
ilicifolia.
The jeopardy standard of section 7(a)(2) of the Act and routine
implementation of habitat protection through the section 7(a)(2)
process also provide assurances that the species will not go extinct.
The protections afforded to Acanthomintha ilicifolia under the jeopardy
standard will remain in place for the areas excluded from critical
habitat.
Economic Analysis
Section 4(b)(2) of the Act requires us to designate critical
habitat on the basis of the best scientific information
[[Page 50483]]
available and to consider the 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
exclusions 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 economic
analysis (draft EA) was made available for public review on November
27, 2007 (72 FR 66122). We accepted comments and information on the
draft analysis until December 27, 2007. A final economic analysis was
completed on January 24, 2008.
The primary purpose of the final economic analysis is to estimate
the potential economic impacts associated with the designation of
critical habitat for Acanthomintha ilicifolia. 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. The economic analysis separates the
costs associated with conservation measures and economic impacts that
occurred pre-designation from those that are likely to occur as a
result of the designation. It also addresses distribution of impacts,
including an assessment of the potential effects on small entities and
the energy industry. The economic analysis separated the costs
associated with the areas that we proposed to exclude from the areas
that we proposed to designate at the time of the March 14, 2007,
proposed rule (72 FR 11946). 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, local zoning laws, State and natural resource laws, and
enforceable management plans and best management practices applied by
other State and Federal agencies. Economic impacts that result from
these types of protections are not included in the analysis as they are
considered to be part of the regulatory and policy baseline.
The economic analysis examines activities taking place both within
and adjacent to the designation. It estimates impacts based on
activities that are ``reasonably foreseeable'' including, but not
limited to, activities that are currently authorized, permitted, or
funded, or for which proposed plans are currently available to the
public. Accordingly, the analysis bases estimates on activities that
are likely to occur within a 20-year time frame from when the proposed
rule became available to the public (72 FR 11946; March 14, 2007). The
20-year time frame was chosen for the analysis because, as the time
horizon for an economic analysis is expanded, the assumptions on which
the projected number of projects and cost impacts associated with those
projects become increasingly speculative.
Based on our analysis, we concluded that the designation of
critical habitat would not result in a significant economic impact. The
total future potential economic impact is estimated to be $0.6 to $2.8
million in undiscounted dollars over the next 20 years. The present
value of these impacts, applying a 3 percent discount rate, is $0.4 to
$2.1 million ($25,000 to $137,000 annualized); applying a 7 percent
discount rate, it is $0.3 to $1.5 million ($25,000 to $136,000
annualized). Impacts associated with development represent the largest
proportion of future impacts, accounting for 96 percent of forecasted
impacts in the areas proposed for final designation. Impacts from
recreation management and exotic plant species management make up the
remaining 4 percent. Under the final designation scenario,
approximately 98 percent of the anticipated post-designation impacts
are forecast to occur in subunits 3D (71 percent), 3C (17 percent), and
3F (11 percent). The remaining 2 percent of forecasted impacts are
expected to occur in subunits 3B, 1A, and 3E. Impacts associated with
development, recreation, and exotic plant species management are
quantified for the areas that we proposed as critical habitat. Although
we do not find the economic costs to be significant, they were
considered in balancing the benefits of including and excluding areas
from critical habitat. We did not exclude any areas from this
designation of critical habitat based on economic impacts.
A copy of the final economic analysis, with supporting documents,
may be obtained by contacting U.S. Fish and Wildlife Service, Carlsbad
Fish and Wildlife Office (see ADDRESSES) or for downloading from the
Internet at http://www.regulations.gov or http://www.fws.gov/carlsbad.
Required Determinations
In our March 14, 2007, proposed rule (72 FR 11946), we indicated
that we would defer our determination of compliance with several
statutes and Executive Orders until the information concerning
potential economic impacts of the designation and potential effects on
landowners and stakeholders was available in the economic analysis. In
this final rule, we affirm the information contained in the proposed
rule concerning Executive Order (E.O.) 13132, E.O. 12988, the Paperwork
Reduction Act, and the President's memorandum of April 29, 1994,
``Government-to-Government Relations with Native American Tribal
Governments'' (59 FR 22951).
Regulatory Planning and Review
The Office of Management and Budget (OMB) has determined that this
rule is not significant and has not reviewed this rule under Executive
Order 12866 (E.O. 12866). OMB bases its determination upon the
following four criteria:
(a) Whether the rule will have an annual effect of $100 million or
more on the economy or adversely affect an economic sector,
productivity, jobs, the environment, or other units of the government.
(b) Whether the rule will create inconsistencies with other Federal
agencies' actions.
(c) Whether the rule will materially affect entitlements, grants,
user fees, loan programs, or the rights and obligations of their
recipients.
(d) Whether the rule raises novel legal or policy issues.
Regulatory Flexibility Act
Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.),
as amended by the Small Business Regulatory Enforcement Fairness Act
(SBREFA), 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 (i.e., small businesses, small
organizations, and small government jurisdictions). However, no
regulatory flexibility analysis is required if the head of an agency
certifies the rule will not have a significant economic impact on a
substantial number of small
[[Page 50484]]
entities. SBREFA amended RFA to require Federal agencies to provide a
certification statement of the factual basis for certifying that the
rule will not have a significant economic impact on a substantial
number of small entities. In this final rule, we are certifying that
the critical habitat designation for Acanthomintha ilicifolia 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 include small organizations, such as independent nonprofit
organizations, and small governmental jurisdictions, including school
boards and city and town governments that serve fewer than 50,000
residents; as well as small businesses (13 CFR 121.201). 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 considered 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 considered 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 authorized,
funded, or carried out 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 authorize, fund, or carry out
that may affect Acanthomintha ilicifolia (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).
In our final economic analysis of the proposed critical habitat
designation, we evaluated the potential economic effects on small
business entities resulting from conservation actions related to the
listing of Acanthomintha ilicifolia and the proposed designation of
critical habitat. The analysis is based on the estimated impacts
associated with the proposed rulemaking as described in Chapters 2
through 4 and Appendices A, B, C, and F of the analysis and evaluates
the potential for economic impacts related to three categories:
Development and HCP implementation; recreation management; and
invasive, nonnative plant management.
The U.S. Forest Service (USFS), the California Department of Fish
and Game (CDFG), and the U.S. Fish and Wildlife Service are not
considered small entities by the Small Business Administration. Two
non-profit organizations, The Nature Conservancy (TNC) and the Center
for Natural Lands Management (CNLM), are involved with conservation
activities for Acanthomintha ilicifolia; however, the primary mission
of both of these organizations is to preserve, restore, and protect
natural resources. Therefore, impacts from species conservation on
these organizations are not considered in the small business impacts
analysis.
Additionally, the boundaries of four city governments encompass
portions of the proposed critical habitat--Carlsbad, Encinitas, San
Diego, and Poway--with the remainder of the proposed critical habitat
located within unincorporated San Diego County. All four cities and the
County exceed the criteria to be considered a ``small entity'' under
the RFA.
The final economic analysis identified 18 privately owned,
undeveloped parcels within areas proposed as critical habitat. The 18
parcels are owned by nine individual landowners. For the nine
individual landowners that may be affected by the proposed designation
of critical habitat, the final economic analysis could not determine if
any of these landowners qualify as small businesses. For the two
landowners of proposed subunits 3D, 3E, and 3F, the final economic
analysis estimates annualized impacts associated with conservation
activities for Acanthomintha ilicifolia could range from a low of $700
to $35,700, with an average range of annualized impact of $5,300 to
$42,300 per landowner over the next 20 years. The remaining seven
landowners of the 14 parcels in subunits we excluded from the final
designation, annualized impacts are estimated to range from a low of
$300 in subunit 4D up to $18,700 in subunit 2C, with an average
annualized impact ranging from $17,000 to $84,000.
We determined that nine individual private landowners do not
constitute a substantial number of small entities according to the SBA.
However, even if the landowners were to represent small development
businesses, nine small businesses would not be a significant number of
businesses for San Diego County. Additionally, any developer directly
impacted by the designation of critical habitat would not be expected
to bear the additional cost of conservation measures for Acanthomintha
ilicifolia; it is anticipated that additional costs that could arise
from the designation would be passed on to individual homebuyers if the
parcels were to be developed. Please refer to our final economic
analysis of the proposed critical habitat designation for a more
detailed discussion of potential economic impacts.
In summary, we considered whether this would result in a
significant economic effect on a substantial number of small entities.
Based on the above reasoning and currently available information, we
concluded that this rule would not result in a significant economic
impact on a substantial number of small entities. Therefore, we are
certifying that the designation of critical habitat for Acanthomintha
ilicifolia will not have a significant economic impact on a substantial
number of small entities, and a regulatory flexibility analysis is not
required.
[[Page 50485]]
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 final 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).
Energy Supply, Distribution, or Use
On May 18, 2001, the President issued Executive Order 13211 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 final economic analysis, energy-related
impacts associated with Acanthomintha ilicifolia conservation
activities within the final critical habitat designation are not
expected. As such, the designation of critical habitat is not expected
to significantly affect energy supplies, distribution, or use.
Therefore, this action is not a significant energy action, and no
Statement of Energy Effects is required.
Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)
In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501
et seq.), we make the following findings:
(a) This rule will not produce a Federal mandate. In general, a
Federal mandate is a provision in legislation, statute, or regulation
that would impose an enforceable duty upon State, local, or Tribal
governments, or the private sector, and includes both ``Federal
intergovernmental mandates'' and ``Federal private sector mandates.''
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal
intergovernmental mandate'' includes a regulation that ``would impose
an enforceable duty upon State, local, or tribal governments'' with two
exceptions. It excludes ``a condition of Federal assistance.'' It also
excludes ``a duty arising from participation in a voluntary Federal
program,'' unless the regulation ``relates to a then-existing Federal
program under which $500,000,000 or more is provided annually to State,
local, and tribal governments under entitlement authority,'' if the
provision would ``increase the stringency of conditions of assistance''
or ``place caps upon, or otherwise decrease, the Federal Government's
responsibility to provide funding,'' and the State, local, or Tribal
governments ``lack authority'' to adjust accordingly. At the time of
enactment, these entitlement programs were: Medicaid; Aid to Families
with Dependent Children 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 result in the destruction or adverse
modification of critical habitat. 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. However,
the legally binding duty to avoid destruction or adverse modification
of critical habitat rests squarely on the Federal agency. Furthermore,
to the extent that non-Federal entities are indirectly impacted because
they receive Federal assistance or participate in a voluntary Federal
aid program, the Unfunded Mandates Reform Act would not apply, nor
would critical habitat shift the costs of the large entitlement
programs listed above onto State governments.
(b) We do not believe that this rule will significantly or uniquely
affect small governments because it will not produce a Federal mandate
of $100 million or greater in any year, that is, it is not a
``significant regulatory action'' under the Unfunded Mandates Reform
Act. The designation of critical habitat imposes no obligations on
State or local governments. By definition, Federal agencies are not
considered small entities, although the activities they fund or permit
may be proposed or carried out by small entities. As such, a Small
Government Agency Plan is not required.
Executive Order 12630--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 critical habitat for Acanthomintha ilicifolia in a takings
implications assessment. Critical habitat designation does not affect
landowner actions that do not require Federal funding or permits, nor
does it preclude development of habitat conservation programs or
issuance of incidental take permits to permit actions that do require
Federal funding or permits to go forward. The takings implications
assessment concludes that this designation of critical habitat for
Acanthomintha ilicifolia does not pose significant takings
implications.
Federalism
In accordance with E.O. 13132 (Federalism), this 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 critical habitat designation with appropriate
State resource agencies in California. The designation may have some
benefit to these governments in that the areas that contain the
physical and biological features essential to the conservation of the
species are more clearly defined, and the PCE of the habitat necessary
to the conservation of the species is 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
regulation meets the applicable standards set forth in 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
[[Page 50486]]
physical and biological features essential to the conservation of the
subspecies within the designated areas to assist the public in
understanding the habitat needs of Acanthomintha ilicifolia.
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 (NEPA)
It is our position that, outside the Jurisdiction of the U.S. Court
of Appeals for the Tenth Circuit, we do not need to prepare
environmental analyses as defined by the 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
Federal Register on October 25, 1983 (48 FR 49244). This assertion was
upheld by the U.S. Court of Appeals 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 determined that there are no
Tribal lands occupied at the time of listing that contain the features
essential for the conservation, and no unoccupied Tribal lands that are
essential for the conservation of Acanthomintha ilicifolia. Therefore,
we are not designating critical habitat for A. ilicifolia on Tribal
lands.
References Cited
A complete list of all references cited in this rulemaking is
available upon request from the Field Supervisor, Carlsbad Fish and
Wildlife Office (see ADDRESSES).
Author(s)
The primary authors of this rulemaking are the staff members of the
Carlsbad Fish and Wildlife Office.
List of Subjects in 50 CFR Part 17
Endangered and threatened species, Exports, Imports, Reporting and
recordkeeping requirements, Transportation.
Regulation Promulgation
0
Accordingly, we amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:
PART 17--[AMENDED]
0
1. The authority citation for part 17 continues to read as follows:
Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.
0
2. Amend Sec. 17.12(h), by revising the entry for ``Acanthomintha
ilicifolia'' under ``FLOWERING PLANTS'' to read as follows:
Sec. 17.12 Endangered and threatened plants.
* * * * *
(h) * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------------- Historic range Family Status When listed Critical Special
Scientific name Common name habitat rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
* * * * * * *
Acanthomintha ilicifolia......... San Diego thornmint. U.S.A. (CA), Mexico Lamiaceae.......... T 649 17.96(a) NA
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------
0
3. Amend Sec. 17.96(a), by adding an entry for ``Acanthomintha
ilicifolia (San Diego thornmint),'' in alphabetical order under family
Lamiaceae, to read as follows:
Sec. 17.96 Critical habitat--plants.
(a) Flowering plants.
* * * * *
Family Lamiaceae: Acanthomintha ilicifolia (San Diego thornmint)
(1) Critical habitat units are depicted for San Diego County,
California, on the maps below.
(2) The primary constituent element of critical habitat for
Acanthomintha ilicifolia is clay lenses that provide substrate for
seedling establishment and space for growth and development of
Acanthomintha ilicifolia that are:
(i) Within chaparral, grassland, and coastal sage scrub;
(ii) On gentle slopes ranging from 0 to 25 degrees;
(iii) Derived from gabbro and soft calcareous sandstone substrates
with a loose, crumbly structure and deep fissures (approximately 1 to 2
feet (30 to 60 cm)); and
(iv) Characterized by a low density of forbs and geophytes, and a
low density or absence of shrubs.
(3) Critical habitat does not include manmade structures (such as
buildings, aqueducts, airports, and roads) and the land on which such
structures are located existing on the effective date of this rule.
(4) Critical habitat map units. Data layers defining map units were
created using a base of U.S. Geological Survey 7.5' quadrangle maps,
and the critical habitat units were then mapped using UTM coordinates.
(5) Note: Index map of critical habitat units for Acanthomintha
ilicifolia (San Diego thornmint) follows:
BILLING CODE 4310-55-P
[[Page 50487]]
[GRAPHIC] [TIFF OMITTED] TR26AU08.008
BILLING CODE 4310-55-C
[[Page 50488]]
(6) Unit 1: San Diego County, California. From USGS 1:24,000
quadrangle maps San Luis Rey, San Marcos, Encinitas, and Rancho Santa
Fe.
(i) Subunit 1A. Land bounded by the following UTM NAD27 coordinates
(E,N): 475715, 3666433; 475721, 3666303; 475701, 3666286; 475680,
3666267; 475668, 3666256; 475657, 3666252; 475640, 3666251; 475636,
3666235; 475627, 3666226; 475627, 3666225; 475624, 3666222; 475614,
3666214; 475604, 3666209; 475588, 3666206; 475577, 3666207; 475570,
3666200; 475651, 3666200; 475724, 3666204; 475729, 3666090; 475729,
3666089; 475715, 3666078; 475725, 3665997; 475684, 3665976; 475692,
3665942; 475678, 3665937; 475677, 3665937; 475667, 3665934; 475660,
3665932; 475625, 3665959; 475555, 3665930; 475456, 3665852; 475471,
3665837; 475502, 3665823; 475526, 3665825; 475595, 3665822; 475610,
3665823; 475639, 3665823; 475697, 3665853; 475706, 3665850; 475706,
3665850; 475707, 3665847; 475709, 3665845; 475710, 3665842; 475711,
3665840; 475713, 3665837; 475714, 3665834; 475715, 3665832; 475716,
3665829; 475717, 3665826; 475718, 3665823; 475719, 3665821; 475720,
3665818; 475721, 3665815; 475721, 3665812; 475722, 3665809; 475723,
3665807; 475723, 3665804; 475724, 3665801; 475724, 3665798; 475725,
3665795; 475725, 3665792; 475726, 3665789; 475726, 3665787; 475726,
3665784; 475726, 3665781; 475726, 3665778; 475726, 3665775; 475726,
3665772; 475726, 3665769; 475726, 3665766; 475726, 3665763; 475726,
3665760; 475726, 3665758; 475725, 3665755; 475725, 3665752; 475725,
3665751; 475690, 3665758; 475660, 3665748; 475573, 3665707; 475497,
3665712; 475443, 3665727; 475419, 3665730; 475402, 3665733; 475390,
3665731; 475389, 3665722; 475387, 3665635; 475393, 3665625; 475384,
3665621; 475363, 3665616; 475351, 3665612; 475329, 3665607; 475298,
3665608; 475276, 3665597; 475267, 3665596; 475257, 3665597; 475244,
3665599; 475234, 3665595; 475221, 3665587; 475170, 3665590; 475172,
3665599; 475154, 3665640; 475145, 3665651; 475119, 3665668; 475104,
3665685; 475097, 3665688; 475098, 3665697; 475100, 3665707; 475103,
3665716; 475107, 3665725; 475111, 3665735; 475114, 3665741; 475117,
3665745; 475123, 3665756; 475124, 3665759; 475129, 3665767; 475135,
3665775; 475142, 3665783; 475148, 3665790; 475156, 3665797; 475161,
3665801; 475175, 3665813; 475178, 3665815; 475186, 3665821; 475195,
3665826; 475203, 3665831; 475212, 3665835; 475215, 3665836; 475216,
3665844; 475216, 3665854; 475218, 3665864; 475220, 3665873; 475223,
3665883; 475227, 3665892; 475231, 3665901; 475236, 3665910; 475241,
3665919; 475247, 3665927; 475253, 3665934; 475260, 3665942; 475267,
3665948; 475286, 3665965; 475286, 3665965; 475294, 3665972; 475302,
3665977; 475310, 3665983; 475319, 3665987; 475328, 3665991; 475337,
3665995; 475338, 3665995; 475339, 3665996; 475372, 3666006; 475381,
3666009; 475390, 3666011; 475400, 3666013; 475410, 3666014; 475420,
3666014; 475430, 3666014; 475440, 3666013; 475450, 3666011; 475452,
3666011; 475478, 3666005; 475474, 3666011; 475472, 3666014; 475466,
3666022; 475461, 3666030; 475456, 3666039; 475452, 3666048; 475448,
3666057; 475445, 3666067; 475443, 3666077; 475441, 3666087; 475440,
3666096; 475440, 3666106; 475440, 3666116; 475441, 3666126; 475443,
3666134; 475446, 3666150; 475446, 3666152; 475448, 3666162; 475451,
3666171; 475455, 3666181; 475459, 3666190; 475464, 3666199; 475468,
3666205; 475479, 3666223; 475480, 3666225; 475486, 3666233; 475492,
3666241; 475496, 3666245; 475511, 3666260; 475514, 3666263; 475518,
3666267; 475517, 3666269; 475517, 3666272; 475517, 3666275; 475516,
3666278; 475516, 3666281; 475516, 3666284; 475516, 3666287; 475516,
3666289; 475516, 3666292; 475516, 3666295; 475516, 3666298; 475517,
3666301; 475517, 3666304; 475517, 3666307; 475518, 3666310; 475518,
3666313; 475519, 3666315; 475519, 3666318; 475520, 3666321; 475520,
3666324; 475521, 3666327; 475522, 3666330; 475523, 3666332; 475524,
3666335; 475524, 3666338; 475525, 3666341; 475526, 3666343; 475528,
3666346; 475529, 3666349; 475530, 3666351; 475531, 3666354; 475532,
3666357; 475534, 3666359; 475535, 3666362; 475536, 3666364; 475538,
3666367; 475539, 3666369; 475541, 3666372; 475543, 3666374; 475544,
3666376; 475546, 3666379; 475548, 3666381; 475550, 3666383; 475551,
3666386; 475553, 3666388; 475555, 3666390; 475557, 3666392; 475559,
3666394; 475561, 3666396; 475563, 3666398; 475565, 3666400; 475568,
3666402; 475570, 3666404; 475572, 3666406; 475574, 3666408; 475577,
3666410; 475579, 3666411; 475581, 3666413; 475584, 3666415; 475586,
3666416; 475589, 3666418; 475591, 3666419; 475594, 3666421; 475596,
3666422; 475599, 3666424; 475601, 3666425; 475604, 3666426; 475607,
3666427; 475609, 3666428; 475612, 3666430; 475615, 3666431; 475617,
3666432; 475620, 3666433; 475623, 3666433; 475626, 3666434; 475628,
3666435; 475631, 3666436; 475634, 3666437; 475637, 3666437; 475640,
3666438; 475643, 3666438; 475645, 3666439; 475648, 3666439; 475651,
3666439; 475654, 3666440; 475657, 3666440; 475660, 3666440; 475663,
3666440; 475666, 3666440; 475669, 3666440; 475671, 3666440; 475674,
3666440; 475677, 3666440; 475680, 3666440; 475683, 3666440; 475686,
3666439; 475689, 3666439; 475692, 3666439; 475695, 3666438; 475697,
3666438; 475700, 3666437; 475703, 3666437; 475706, 3666436; 475709,
3666435; 475712, 3666434; 475714, 3666433; returning to 475715,
3666433.
(ii) Subunit 1C. Land bounded by the following UTM NAD27
coordinates (E,N): 476734, 3654344; 476773, 3654344; 476753, 3654337;
476753, 3654314; 476730, 3654283; 476699, 3654259; 476670, 3654230;
476667, 3654190; 476654, 3654166; 476578, 3654226; 476581, 3654228;
476586, 3654259; 476577, 3654287; 476576, 3654287; 476519, 3654289;
476485, 3654306; 476451, 3654315; 476452, 3654320; 476457, 3654334;
476457, 3654335; 476461, 3654344; 476465, 3654353; 476467, 3654358;
476474, 3654370; 476476, 3654374; 476481, 3654383; 476487, 3654391;
476488, 3654392; 476497, 3654403; 476502, 3654409; 476509, 3654417;
476515, 3654423; 476519, 3654426; 476609, 3654448; 476615, 3654465;
476615, 3654341; 476616, 3654341; returning to 476734, 3654344.
(iii) Note: Map of Unit 1, Subunits 1A and 1C, follows:
BILLING CODE 4310-55-P
[[Page 50489]]
[GRAPHIC] [TIFF OMITTED] TR26AU08.009
[[Page 50490]]
BILLING CODE 4310-55-C
(7) Unit 3: San Diego County, California. From USGS 1:24,000
quadrangle map Viejas Mountain.
(i) Subunit 3B. Land bounded by the following UTM NAD27 coordinates
(E,N): 524469, 3634407; 524471, 3634409; 524477, 3634418; 524483,
3634425; 524490, 3634433; 524497, 3634439; 524505, 3634446; 524513,
3634452; 524522, 3634457; 524530, 3634461; 524539, 3634466; 524549,
3634469; 524557, 3634472; 524601, 3634484; 524603, 3634484; 524607,
3634485; 524617, 3634500; 524621, 3634504; 524627, 3634512; 524634,
3634519; 524641, 3634526; 524647, 3634531; 524683, 3634560; 524686,
3634562; 524694, 3634568; 524702, 3634573; 524711, 3634578; 524720,
3634582; 524729, 3634585; 524739, 3634588; 524749, 3634590; 524758,
3634592; 524768, 3634593; 524778, 3634593; 524783, 3634593; 524811,
3634592; 524816, 3634592; 524826, 3634591; 524836, 3634590; 524845,
3634587; 524855, 3634584; 524864, 3634581; 524873, 3634577; 524882,
3634572; 524891, 3634567; 524899, 3634561; 524907, 3634555; 524914,
3634548; 524917, 3634544; 524933, 3634527; 524937, 3634523; 524943,
3634516; 524949, 3634508; 524954, 3634499; 524959, 3634490; 524963,
3634481; 524966, 3634472; 524986, 3634414; 524987, 3634413; 524990,
3634403; 524992, 3634394; 524993, 3634384; 524994, 3634374; 524995,
3634364; 524994, 3634354; 524993, 3634344; 524992, 3634334; 524990,
3634325; 524987, 3634315; 524985, 3634311; 524970, 3634270; 524968,
3634265; 524964, 3634255; 524959, 3634247; 524957, 3634243; 524957,
3634242; 524953, 3634220; 524952, 3634214; 524950, 3634204; 524947,
3634194; 524943, 3634185; 524939, 3634176; 524935, 3634167; 524929,
3634159; 524923, 3634150; 524917, 3634143; 524913, 3634139; 524890,
3634114; 524887, 3634111; 524880, 3634104; 524872, 3634098; 524864,
3634092; 524856, 3634087; 524847, 3634082; 524838, 3634078; 524832,
3634076; 524804, 3634066; 524801, 3634065; 524791, 3634062; 524781,
3634059; 524774, 3634058; 524755, 3634055; 524744, 3634054; 524741,
3634053; 524732, 3634052; 524731, 3634341; 524634, 3634343; 524436,
3634347; 524436, 3634347; 524439, 3634356; 524444, 3634365; 524448,
3634374; 524452, 3634380; 524454, 3634383; returning to 524469,
3634407. Land bounded by the following UTM NAD27 coordinates (E,N):
524386, 3634381; 524389, 3634377; 524400, 3634360; 524402, 3634356;
524406, 3634348; 524348, 3634349; 524325, 3634350; 524325, 3634407;
524325, 3634407; 524324, 3634436; 524342, 3634425; 524344, 3634424;
524352, 3634418; 524360, 3634411; 524367, 3634405; 524374, 3634397;
524374, 3634397; 524381, 3634390; 524385, 3634384; returning to 524386,
3634381. Land bounded by the following UTM NAD27 coordinates (E,N):
524764, 3633867; 524774, 3633864; 524783, 3633860; 524792, 3633856;
524801, 3633851; 524810, 3633846; 524818, 3633840; 524826, 3633834;
524833, 3633827; 524840, 3633820; 524846, 3633812; 524852, 3633804;
524857, 3633796; 524862, 3633787; 524866, 3633778; 524869, 3633768;
524871, 3633763; 524896, 3633679; 524897, 3633675; 524900, 3633665;
524901, 3633655; 524902, 3633645; 524902, 3633635; 524902, 3633625;
524901, 3633615; 524900, 3633606; 524897, 3633596;524894, 3633586;
524891, 3633577; 524887, 3633568; 524882, 3633559; 524877, 3633551;
524871, 3633542; 524865, 3633535; 524858, 3633527; 524851, 3633521;
524844, 3633515; 524805, 3633485; 524768, 3633441; 524765, 3633438;
524749, 3633418; 524749, 3633418; 524749, 3633467; 524735, 3633871;
524745, 3633870; 524755, 3633869; 524758, 3633868; returning to 524764,
3633867.
(ii) Note: Subunit 3B for Acanthomintha ilicifolia is depicted on
the map in paragraph (7)(x) of this entry.
(iii) Subunit 3C. Land bounded by the following UTM NAD27
coordinates (E,N): 527110, 3634008; 527113, 3633915; 527118, 3633794;
527114, 3633788; 527113, 3633774; 527112, 3633774; 527093, 3633707;
527076, 3633649; 527047, 3633595; 526929, 3633588; 526900, 3633612;
526851, 3633672; 526802, 3633692; 526764, 3633652; 526723, 3633606;
526709, 3633575; 526535, 3633564; 526387, 3633555; 526378, 3633555;
526380, 3633421; 526384, 3633149; 526237, 3633148; 526221, 3633170;
526221, 3633170; 526215, 3633178; 526209, 3633187; 526205, 3633195;
526201, 3633205; 526197, 3633214; 526194, 3633223; 526194, 3633225;
526175, 3633297; 526173, 3633306; 526171, 3633315; 526171, 3633325;
526170, 3633335; 526170, 3633340; 526173, 3633452; 526174, 3633458;
526175, 3633468; 526176, 3633478; 526179, 3633487; 526181, 3633497;
526185, 3633506; 526189, 3633515; 526194, 3633524; 526199, 3633532;
526192, 3633537; 526183, 3633543; 526176, 3633549; 526169, 3633555;
526138, 3633586; 526137, 3633587; 526131, 3633594; 526124, 3633602;
526118, 3633610; 526113, 3633618; 526109, 3633627; 526104, 3633636;
526101, 3633646; 526098, 3633655; 526096, 3633665; 526094, 3633675;
526093, 3633684; 526090, 3633734; 526085, 3633793; 526074, 3633870;
526074, 3633871; 526064, 3633943; 526064, 3633944; 526063, 3633954;
526062, 3633964; 526063, 3633974; 526064, 3633984; 526064, 3633986;
526073, 3634048; 526074, 3634056; 526076, 3634066; 526079, 3634076;
526083, 3634085; 526084, 3634088; 526100, 3634123; 526100, 3634133;
526091, 3634181; 526070, 3634267; 526069, 3634273; 526068, 3634278;
526058, 3634337; 526058, 3634342; 526057, 3634352; 526057, 3634353;
526054, 3634397; 526054, 3634406; 526054, 3634416; 526055, 3634426;
526057, 3634435; 526059, 3634445; 526062, 3634455; 526066, 3634464;
526070, 3634473; 526074, 3634482; 526080, 3634490; 526085, 3634498;
526092, 3634506; 526099, 3634513; 526102, 3634517; 526123, 3634536;
526127, 3634540; 526134, 3634546; 526143, 3634552; 526151, 3634557;
526160, 3634562; 526169, 3634566; 526178, 3634570; 526187, 3634572;
526213, 3634579; 526214, 3634580; 526224, 3634582; 526234, 3634584;
526235, 3634584; 526261, 3634587; 526270, 3634588; 526277, 3634588;
526310, 3634612; 526318, 3634617; 526320, 3634620; 526340, 3634682;
526341, 3634684; 526344, 3634694; 526348, 3634703; 526353, 3634712;
526358, 3634720; 526364, 3634728; 526370, 3634736; 526377, 3634743;
526385, 3634750; 526392, 3634756; 526400, 3634762; 526403, 3634764;
526449, 3634794; 526455, 3634797; 526464, 3634802; 526473, 3634806;
526483, 3634810; 526492, 3634812; 526502, 3634815; 526512, 3634816;
526522, 3634817; 526532, 3634818; 526542, 3634817; 526549, 3634817;
526586, 3634812; 526589, 3634812; 526598, 3634810; 526608, 3634808;
526618, 3634805; 526627, 3634802; 526636, 3634798; 526645, 3634793;
526653, 3634788; 526662, 3634782; 526669, 3634775; 526677, 3634769;
526683, 3634761; 526690, 3634754; 526695, 3634745; 526701, 3634737;
526705, 3634728; 526710, 3634719; 526712, 3634713; 526738, 3634641;
526739, 3634638; 526742, 3634628; 526744, 3634619; 526746, 3634609;
526747, 3634599; 526747, 3634589; 526747, 3634583; 526744, 3634492;
526761, 3634446; 526790, 3634400; 526792, 3634397; 526796, 3634389;
526797, 3634389; 526807, 3634393; 526814, 3634395; 526876, 3634412;
526877, 3634413; 526887, 3634415; 526897, 3634417; 526902, 3634417;
526973, 3634424; 526978, 3634425; 526988, 3634425; 526998, 3634425;
527008, 3634424; 527017, 3634422; 527027,
[[Page 50491]]
3634420; 527029, 3634419; 527087, 3634403; 527095, 3634401; 527104,
3634397; 527113, 3634393; 527120, 3634389; 527111, 3634389; 527111,
3634111; returning to 527110, 3634008.
(iv) Note: Subunit 3C for Acanthomintha ilicifolia is depicted on
the map in paragraph (7)(x) of this entry.
(v) Subunit 3D. Land bounded by the following UTM NAD27 coordinates
(E,N): 527502, 3634924; 527484, 3634918; 527477, 3634916; 527467,
3634914; 527460, 3634912; 527393, 3634902; 527391, 3634902; 527381,
3634901; 527371, 3634901; 527314, 3634901; 527314, 3634901; 527304,
3634901; 527294, 3634902; 527284, 3634904; 527275, 3634906; 527265,
3634909; 527256, 3634912; 527247, 3634917; 527238, 3634921; 527229,
3634927; 527221, 3634932; 527214, 3634939; 527206, 3634945; 527200,
3634953; 527199, 3634953; 527164, 3634993; 527158, 3635001; 527152,
3635009; 527147, 3635017; 527142, 3635026; 527138, 3635035; 527134,
3635045; 527132, 3635054; 527129, 3635064; 527128, 3635074; 527127,
3635076; 527120, 3635142; 527119, 3635150; 527119, 3635160; 527119,
3635170; 527120, 3635180; 527121, 3635189; 527124, 3635199; 527127,
3635209; 527130, 3635218; 527130, 3635219; 527172, 3635317; 527176,
3635326; 527180, 3635335; 527186, 3635343; 527191, 3635351; 527196,
3635357; 527263, 3635436; 527265, 3635438; 527272, 3635445; 527279,
3635452; 527280, 3635453; 527285, 3635457; 527376, 3635529; 527378,
3635530; 527386, 3635536; 527395, 3635541; 527403, 3635546; 527413,
3635550; 527422, 3635554; 527430, 3635556; 527514, 3635580; 527516,
3635580; 527525, 3635582; 527535, 3635584; 527545, 3635585; 527555,
3635585; 527565, 3635585; 527566, 3635585; 527661, 3635578; 527671,
3635577; 527680, 3635576; 527690, 3635573; 527763, 3635554; 527823,
3635540; 527827, 3635539; 527837, 3635536; 527846, 3635532; 527855,
3635528; 527864, 3635524; 527872, 3635518; 527881, 3635513; 527888,
3635506; 527895, 3635500; 527900, 3635252; 527901, 3635233; 527900,
3635233; 527896, 3635228; 527895, 3635227; 527529, 3635219; 527494,
3635218; returning to 527502, 3634924.
(vi) Note: Subunit 3D for Acanthomintha ilicifolia is depicted on
the map in paragraph (7)(x) of this entry.
(vii) Subunit 3E. Land bounded by the following UTM NAD27
coordinates (E,N): 529307, 3636146; 529297, 3636146; 529297, 3636146;
529284, 3636147; 529274, 3636148; 529264, 3636149; 529260, 3636150;
529249, 3636153; 529243, 3636154; 529233, 3636157; 529224, 3636161;
529215, 3636165; 529210, 3636167; 529197, 3636175; 529193, 3636177;
529184, 3636182; 529176, 3636188; 529168, 3636194; 529161, 3636201;
529154, 3636208; 529148, 3636216; 529143, 3636223; 529135, 3636235;
529134, 3636236; 529129, 3636245; 529124, 3636253; 529120, 3636263;
529116, 3636272; 529114, 3636279; 529111, 3636290; 529110, 3636292;
529108, 3636302; 529107, 3636311; 529106, 3636321; 529105, 3636331;
529106, 3636341; 529107, 3636351; 529107, 3636356; 529110, 3636370;
529111, 3636376; 529113, 3636386; 529116, 3636395; 529119, 3636405;
529123, 3636413; 529129, 3636426; 529130, 3636427; 529134, 3636435;
529140, 3636444; 529145, 3636451; 529160, 3636471; 529161, 3636472;
529167, 3636480; 529174, 3636487; 529181, 3636494; 529189, 3636500;
529195, 3636505; 529214, 3636518; 529216, 3636519; 529224, 3636524;
529233, 3636529; 529242, 3636533; 529251, 3636537; 529258, 3636539;
529276, 3636544; 529279, 3636544; 529288, 3636547; 529297, 3636548;
529319, 3636551; 529321, 3636552; 529331, 3636553; 529340, 3636553;
529350, 3636553; 529360, 3636552; 529370, 3636550; 529373, 3636549;
529388, 3636546; 529394, 3636544; 529404, 3636542; 529413, 3636538;
529416, 3636537; 529428, 3636532; 529434, 3636529; 529443, 3636524;
529451, 3636519; 529459, 3636513; 529467, 3636507; 529474, 3636500;
529481, 3636493; 529483, 3636490; 529495, 3636476; 529499, 3636471;
529505, 3636463; 529510, 3636454; 529515, 3636446; 529519, 3636437;
529523, 3636427; 529525, 3636420; 529531, 3636398; 529532, 3636396;
529534, 3636386; 529536, 3636376; 529537, 3636366; 529537, 3636356;
529537, 3636356; 529537, 3636345; 529537, 3636336; 529536, 3636326;
529534, 3636316; 529532, 3636306; 529529, 3636296; 529525, 3636287;
529521, 3636278; 529519, 3636273; 529512, 3636262; 529510, 3636258;
529505, 3636249; 529499, 3636241; 529493, 3636233; 529492, 3636233;
529480, 3636219; 529474, 3636212; 529466, 3636205; 529459, 3636199;
529451, 3636193; 529442, 3636188; 529439, 3636186; 529419, 3636175;
529414, 3636173; 529405, 3636169; 529402, 3636167; 529379, 3636159;
529373, 3636156; 529363, 3636153; 529354, 3636151; 529347, 3636150;
529330, 3636147; 529327, 3636147; 529317, 3636146; returning to 529307,
3636146.
(viii) Note: Subunit 3E for Acanthomintha ilicifolia is depicted on
the map in paragraph (7)(x) of this entry.
(ix) Subunit 3F. Land bounded by the following UTM NAD27
coordinates (E,N): 530315, 3635191; 530282, 3635194; 530276, 3635194;
530273, 3635195; 530266, 3635195; 530213, 3635199; 530116, 3635207;
530086, 3635210; 530086, 3635212; 530086, 3635218; 530085, 3635235;
530085, 3635238; 530086, 3635248; 530087, 3635258; 530087, 3635259;
530089, 3635277; 530091, 3635285; 530093, 3635295; 530096, 3635304;
530099, 3635314; 530100, 3635316; 530109, 3635336; 530112, 3635344;
530117, 3635352; 530122, 3635361; 530128, 3635369; 530133, 3635374;
530140, 3635383; 530142, 3635386; 530149, 3635393; 530156, 3635400;
530164, 3635406; 530172, 3635412; 530176, 3635415; 530186, 3635421;
530191, 3635424; 530200, 3635428; 530209, 3635432; 530218, 3635436;
530228, 3635439; 530237, 3635441; 530246, 3635443; 530255, 3635444;
530257, 3635444; 530265, 3635445; 530264, 3635448; 530263, 3635458;
530263, 3635458; 530261, 3635472; 530260, 3635481; 530260, 3635491;
530260, 3635501; 530261, 3635510; 530262, 3635522; 530263, 3635523;
530264, 3635533; 530266, 3635542; 530269, 3635552; 530273, 3635561;
530275, 3635567; 530279, 3635575; 530281, 3635578; 530291, 3635578;
530311, 3635593; 530327, 3635609; 530347, 3635630; 530361, 3635647;
530364, 3635658; 530367, 3635660; 530377, 3635663; 530386, 3635666;
530386, 3635666; 530395, 3635669; 530405, 3635672; 530415, 3635673;
530425, 3635674; 530432, 3635674; 530446, 3635675; 530449, 3635675;
530459, 3635674; 530469, 3635673; 530479, 3635672; 530488, 3635670;
530491, 3635669; 530507, 3635664; 530514, 3635662; 530523, 3635659;
530532, 3635655; 530541, 3635650; 530549, 3635645; 530558, 3635639;
530565, 3635632; 530571, 3635627; 530581, 3635617; 530582, 3635616;
530589, 3635609; 530595, 3635601; 530601, 3635593; 530606, 3635585;
530611, 3635576; 530613, 3635571; 530618, 3635560; 530620, 3635556;
530628, 3635562; 530636, 3635567; 530645, 3635572; 530649, 3635574;
530671, 3635584; 530677, 3635587; 530686, 3635590; 530696, 3635593;
530705, 3635595; 530713, 3635597; 530733, 3635600; 530735, 3635600;
530729, 3635610; 530729, 3635611; 530725, 3635620; 530721, 3635630;
530718, 3635639; 530717, 3635643; 530715, 3635652; 530712, 3635655;
530705, 3635663; 530698, 3635670; 530693, 3635678; 530691, 3635681;
530686, 3635689; 530682, 3635695; 530677, 3635704; 530673, 3635713;
530670,
[[Page 50492]]
3635722; 530668, 3635728; 530665, 3635738; 530664, 3635742; 530662,
3635751; 530660, 3635761; 530659, 3635771; 530659, 3635781; 530659,
3635791; 530659, 3635792; 530655, 3635802; 530654, 3635804; 530651,
3635813; 530648, 3635823; 530646, 3635833; 530644, 3635842; 530644,
3635846; 530642, 3635857; 530642, 3635864; 530641, 3635874; 530642,
3635884; 530643, 3635894; 530643, 3635898; 530645, 3635906; 530646,
3635912; 530648, 3635922; 530651, 3635932; 530654, 3635941; 530656,
3635944; 530660, 3635953; 530663, 3635959; 530667, 3635968; 530673,
3635976; 530673, 3635977; 530679, 3635985; 530684, 3635992; 530690,
3636000; 530697, 3636007; 530704, 3636014; 530707, 3636017; 530717,
3636024; 530721, 3636028; 530729, 3636034; 530738, 3636039; 530741,
3636041; 530747, 3636044; 530752, 3636047; 530761, 3636051; 530771,
3636054; 530780, 3636057; 530781, 3636058; 530790, 3636060; 530799,
3636062; 530809, 3636064; 530819, 3636065; 530829, 3636065; 530833,
3636065; 530844, 3636065; 530850, 3636064; 530860, 3636063; 530870,
3636062; 530880, 3636059; 530889, 3636057; 530899, 3636053; 530906,
3636050; 530906, 3636050; 530915, 3636046; 530920, 3636043; 530923,
3636048; 530929, 3636059; 530930, 3636060; 530935, 3636069; 530941,
3636077; 530947, 3636085; 530954, 3636092; 530961, 3636099; 530969,
3636105; 530974, 3636108; 530988, 3636118; 530991, 3636121; 531000,
3636126; 531008, 3636131; 531018, 3636135; 531027, 3636138; 531036,
3636141; 531046, 3636144; 531056, 3636145; 531066, 3636146; 531073,
3636146; 531089, 3636147; 531092, 3636147; 531102, 3636146; 531112,
3636145; 531122, 3636144; 531132, 3636142; 531141, 3636139; 531149,
3636136; 531163, 3636130; 531164, 3636130; 531173, 3636125; 531182,
3636121; 531191, 3636116; 531199, 3636110; 531206, 3636103; 531213,
3636097; 531223, 3636087; 531224, 3636086; 531231, 3636079; 531237,
3636071; 531243, 3636063; 531248, 3636055; 531253, 3636046; 531257,
3636037; 531260, 3636028; 531262, 3636024; 531268, 3636003; 531270,
3635997; 531272, 3635987; 531274, 3635978; 531275, 3635968; 531275,
3635958; 531275, 3635951; 531274, 3635927; 531274, 3635925; 531272,
3635895; 531272, 3635893; 531271, 3635883; 531269, 3635873; 531267,
3635864; 531264, 3635854; 531257, 3635832; 531257, 3635832; 531253,
3635822; 531249, 3635813; 531244, 3635804; 531239, 3635796; 531233,
3635788; 531230, 3635784; 531224, 3635776; 531221, 3635772; 531214,
3635765; 531206, 3635758; 531206, 3635758; 531206, 3635755; 531203,
3635746; 531203, 3635744; 531200, 3635734; 531201, 3635728; 531201,
3635727; 531202, 3635717; 531202, 3635707; 531202, 3635697; 531201,
3635687; 531198, 3635665; 531198, 3635665; 531197, 3635655; 531194,
3635645; 531191, 3635636; 531188, 3635626; 531184, 3635617; 531183,
3635616; 531171, 3635593; 531167, 3635585; 531162, 3635576; 531156,
3635568; 531150, 3635560; 531143, 3635553; 531122, 3635532; 531122,
3635532; 531115, 3635525; 531107, 3635519; 531105, 3635517; 531085,
3635503; 531071, 3635491; 531069, 3635489; 531060, 3635483; 531052,
3635478; 531043, 3635473; 531034, 3635469; 531031, 3635468; 531014,
3635462; 531008, 3635460; 530999, 3635457; 530989, 3635454; 530979,
3635453; 530969, 3635452; 530959, 3635451; 530954, 3635452; 530940,
3635452; 530936, 3635452; 530936, 3635452; 530938, 3635442; 530940,
3635432; 530941, 3635422; 530941, 3635412; 530941, 3635402; 530940,
3635392; 530938, 3635383; 530938, 3635379; 530930, 3635343; 530928,
3635337; 530925, 3635327; 530922, 3635319; 530910, 3635289; 530910,
3635288; 530906, 3635279; 530904, 3635275; 530888, 3635245; 530885,
3635240; 530880, 3635232; 530828, 3635152; 530827, 3635151; 530824,
3635147; 530633, 3635163; 530487, 3635176; 530329, 3635190; returning
to 530315, 3635191.
(x) Note: Map of Unit 3, Subunits 3B, 3C, 3D, 3E, and 3F, follows:
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[GRAPHIC] [TIFF OMITTED] TR26AU08.010
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(8) Unit 4: San Diego County, California. From USGS 1:24,000
quadrangle maps Alpine and Dulzura.
(i) Subunit 4A. Land bounded by the following UTM NAD27 coordinates
(E,N): 512272, 3623323; 512234, 3623334; 512185, 3623361; 512163,
3623400; 512214, 3623403; 512216, 3623412; 512233, 3623405; 512281,
3623398; 512302, 3623368; 512301, 3623330; 512297, 3623324; returning
to 512272, 3623323.
(ii) Note: Subunit 4A for Acanthomintha ilicifolia is depicted on
the map in paragraph (8)(iv) of this entry.
(iii) Subunit 4C Land bounded by the following UTM NAD27
coordinates (E,N): 512490, 3621562; 512502, 3621562; 512500, 3621561;
512498, 3621559; 512495, 3621558; 512493, 3621557; 512490, 3621556;
512487, 3621555; 512485, 3621553; 512482, 3621552; 512479, 3621551;
512476, 3621550; 512474, 3621550; 512471, 3621549; 512468, 3621548;
512465, 3621547; 512462, 3621546; 512460, 3621546; 512457, 3621545;
512454, 3621545; 512451, 3621544; 512448, 3621544; 512445, 3621543;
512442, 3621543; 512439, 3621543; 512437, 3621543; 512434, 3621543;
512431, 3621543; 512428, 3621542; 512425, 3621543; 512422, 3621543;
512419, 3621543; 512416, 3621543; 512413, 3621543; 512411, 3621543;
512408, 3621544; 512405, 3621544; 512402, 3621545; 512399, 3621545;
512396, 3621546; 512393, 3621546; 512391, 3621547; 512388, 3621548;
512385, 3621549; 512382, 3621550; 512379, 3621550; 512377, 3621551;
512374, 3621552; 512371, 3621553; 512369, 3621555; 512366, 3621556;
512363, 3621557; 512361, 3621558; 512358, 3621559; 512355, 3621561;
512353, 3621562; 512351, 3621563; 512351, 3621564; 512490, 3621562;
returning to 512490, 3621562.
(iv) Note: Map of Unit 4, Subunits 4A and 4C follows:
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[[Page 50495]]
[GRAPHIC] [TIFF OMITTED] TR26AU08.011
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[[Page 50496]]
* * * * *
Dated: August 13, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E8-19194 Filed 8-25-08; 8:45 am]
BILLING CODE 4310-55-P