Thursday, August 27, 2009

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ambrosia pumila (San Diego ambrosia); Proposed Rule

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DEPARTMENT OF THE INTERIOR based on the best scientific and specifically, or we cannot reasonably commercial data available and be as identify essential habitat for this species Fish and Wildlife Service accurate and as effective as possible. based on our evaluation of information [Docket No. FWS–R8–ES–2009–0054; Therefore, we request comments or received, it may be difficult to identify 92210–1117–0000–B4] information from the public, other specific areas as critical habitat for this concerned government agencies, the species. This may be the case if specific 50 CFR Part 17 scientific community, industry, or other information regarding what constitutes interested party concerning this essential habitat for this species cannot RIN 1018–AW20 proposed rule. We particularly seek be obtained, or if the data obtained Endangered and Threatened Wildlife comments concerning: suggest that the species can effectively and Plants; Designation of Critical (1) The reasons why we should or carry out all necessary life functions in Habitat for Ambrosia pumila (San should not designate habitat as ‘‘critical a range of habitat types and conditions Diego ambrosia) habitat’’ under section 4 of the (i.e., there may not be specific habitat Endangered Species of 1973, as features essential to the conservation of AGENCY: Fish and Wildlife Service, amended (Act) (16 U.S.C. 1531 et seq.), the species). Interior. including whether there are threats to (4) Specific information on: ACTION: Proposed rule. the species from human activity, the • The amount and distribution of degree of which can be expected to Ambrosia pumila habitat included in SUMMARY: We, the U.S. Fish and increase due to the designation, and this proposed rule, Wildlife Service (Service), propose to whether that increase in threat • What areas occupied at the time of designate critical habitat for Ambrosia outweighs the benefit of designation listing that contain features essential for pumila (San Diego ambrosia) under the such that the designation is not prudent. the conservation of the species should Endangered Species Act of 1973, as (2) Specific information that may we include or exclude in the amended (Act). In total, approximately assist us in clarifying or identifying designation and why, and 802 acres (ac) (324 hectares (ha)) of land more specific primary constituent • What areas not occupied at the time are being proposed for designation as elements (PCEs). There is a lack of of listing are essential to the critical habitat. The proposed critical specific information available regarding conservation of the species and why. habitat is located in Riverside and San what constitutes physical and biological (5) How the proposed critical habitat Diego Counties, California. features essential to the conservation of boundaries could be refined to more DATES: We will consider comments we this species. Additionally, the available closely circumscribe the areas identified receive on or before October 26, 2009. information does not identify a as essential. We also seek We must receive requests for public consistent pattern in specific life-history recommendations to improve the hearings, in writing, at the address requirements and habitat types where methodology used to delineate the areas shown in the FOR FURTHER INFORMATION Ambrosia pumila is found. For these proposed as critical habitat; especially CONTACT section by October 13, 2009. reasons, the PCEs in this proposed rule comments regarding how we might are broad and based on our assessment more accurately estimate the additional ADDRESSES: You may submit comments of the ecosystem settings in which the surface area beyond the visible surface by one of the following methods: • species has most frequently been area covered by the aerial stems that we Federal eRulemaking Portal: http:// detected and our best assessment www.regulations.gov. Follow the need to include for each occurrence of regarding its life history requisites. We Ambrosia pumila in the critical habitat instructions for submitting comments to specifically seek information that may Docket No. FWS–R8–ES–2009–0054. designation to ensure that habitat areas • assist us in defining those physical and do not exclude unseen underground U.S. mail or hand-delivery: Public biological features essential to the Comments Processing, Attn: FWS–R8– portions of A. pumila plants (see step conservation of the species which may number 4 in the Methods section ES–2009–0054; Division of Policy and require special management Directives Management; U.S. Fish and below). considerations or protection, or in (6) Land use designations and current Wildlife Service; 4401 N. Fairfax Drive, identifying specific areas outside the or planned activities in the areas Suite 222; Arlington, VA 22203. geographical area occupied by the proposed as critical habitat and their We will post all comments on http:// species at the time it was listed that may possible impacts on the species and the www.regulations.gov. This generally be essential to the conservation of the proposed critical habitat. means that we will post any personal species. In particular, answers to the (7) Any probable economic, national information you provide us (see the following questions may be helpful to security, or other relevant impacts of Public Comments section below for clarify or identify more specific PCEs of designating any area that may be more information). Ambrosia pumila habitat: included in the final designation. We FOR FURTHER INFORMATION CONTACT: Jim • Does the species reproduce via seed? are particularly interested in any Bartel, Field Supervisor, U.S. Fish and If so, does the species rely on some impacts on small entities, and the Wildlife Service, Carlsbad Fish and aspect of its environment to trigger seed benefits of including or excluding areas Wildlife Office, 6010 Hidden Valley germination? that exhibit these impacts. Road, Suite 101, Carlsbad, CA 92011; • What are the key factors determining (8) Any issues with the exclusions telephone (760) 431–9440; facsimile why the species occupies the particular being considered under section 4(b)(2) (760) 431–5901. If you use a areas it occupies (but not other areas of the Act as part of this proposed telecommunications device for the deaf with the same habitat type)? For designation, or reasons why any (TDD), call the Federal Information example, what role does proximity to proposed critical habitat not considered Relay Service (FIRS) at (800) 877–8339. waterways or vernal pools play? for exclusions should be excluded. SUPPLEMENTARY INFORMATION: (3) The appropriateness of designating (9) Any special management critical habitat for this species. If the considerations or protections that the Public Comments broad essential physical and biological proposed critical habitat may require. We intend that any final action features proposed for Ambrosia pumila (10) Whether we could improve or resulting from this proposed rule will be habitat cannot be defined more modify our approach to designating

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critical habitat in any way to provide for street address, phone number, or e-mail However, we may revisit our prudency greater public participation and address, you may request at the top of determination following additional understanding, or to better your document that we withhold this review and consideration of information accommodate public concerns and information from public review. we receive during the public comment comments. However, we cannot guarantee that we period. (11) Whether the benefit of an will be able to do so. exclusion of any particular area Comments and materials we receive, Species Description outweighs the benefit of inclusion under as well as supporting documentation we Ambrosia is a genus comprising 35 to section 4(b)(2) of the Act, in particular used in preparing this proposed rule, 50 wind-pollinated annual and for those areas covered by the Western will be available for public inspection at perennial plant species in the Riverside County Multiple Species http://www.regulations.gov, or by Asteraceae (sunflower) family. Members Habitat Conservation Plan (Western appointment, during normal business of this genus occur predominantly in Riverside MSHCP), and Subarea Plans hours, at the U.S. Fish and Wildlife the Western Hemisphere, especially (City of San Diego and County of San Service, Carlsbad Fish and Wildlife North America. Species are generally Diego) under the San Diego Multiple Office (see FOR FURTHER INFORMATION found in arid or semiarid areas, while Species Conservation Program (MSCP), CONTACT). some are weeds of cultivated fields or and specific reasons why. You may obtain copies of the strand species of Pacific and Caribbean (12) Whether the benefit of excluding proposed rule by mail from the Carlsbad beaches (Payne 1976, p. 169). the area proposed as critical habitat Fish and Wildlife Office (see FOR Ambrosia pumila is a clonal within the City of Oceanside in San FURTHER INFORMATION CONTACT) or by herbaceous perennial. Individual stems Diego County (Subunit 4C) under visiting the Federal eRulemaking Portal are generally 5 to 30 centimeters (cm) (2 section 4(b)(2) of the Act outweighs the at http://www.regulations.gov. to 12 inches (in)) tall, but may grow to benefit of including this area as critical 50 cm (20 in), and are densely covered Background habitat, and specific reasons why. The with short hairs. The leaves are two to City of Oceanside is working on a It is our intent to discuss only those four times pinnately divided into many Subarea Plan under the Northwestern topics directly relevant to the small segments and are covered with San Diego County Multiple Habitat designation of critical habitat in this short, soft, gray-white, appressed (lying Conservation Plan (MHCP) in proposed rule. This rule incorporates flat on surface) hairs. The species has cooperation with the Service. new information on the biology, separate male and female flowers on the Our final determination concerning distribution, and abundance of same plant (monoecious). The male critical habitat for Ambrosia pumila will Ambrosia pumila that we did not flowers have no petals, are yellow to take into consideration all written discuss in the 2002 final listing rule for translucent, and are borne in clusters on comments and comments received this species (67 FR 44372). For more terminal flower stalks. The female during a public hearing, should one be information on A. pumila, refer to that flowers have no petals and are requested, and any additional final listing rule, which was published yellowish-white. Female flowers are in information we receive during the in the Federal Register on July 2, 2002. clusters in the axils of the leaves below the male flower clusters (Nuttall 1840, public comment period. These Previous Federal Actions comments will be included in the pp. 344–345; Gray 1882, p. 217; Munz public record for this rulemaking. Our Ambrosia pumila was listed as an 1935, p. 544; Keck 1959, p. 1103; Ferris final determination will also incorporate endangered species on July 2, 2002 (67 1960, p. 148; Munz 1974, p. 112; all comments requested of peer FR 44372). Designation of critical Beauchamp 1986, p. 94; Payne 1993, p. reviewers and received during the habitat was found to be prudent in the 194). Female flowers produce a dry, comment period. Finally, our final proposed (64 FR 72993; December 29, single-seeded fruit called an achene. determination concerning critical 1999) and final listing rules, but was References to seeds in this document habitat will consider all written deferred due to budgetary constraints refer to the single-seeded fruits. comments and any additional and higher listing priorities. The Center Ambrosia pumila spreads vegetatively information we receive during the for Biological Diversity filed a by means of slender, branched, comment period for the draft Economic complaint in the U.S. District Court for underground root-like rhizomes from Analysis (DEA). On the basis of peer the Southern District of California on which new aboveground stems (aerial reviewer and public comments, we may, December 19, 2007, challenging failure stems or ramets) arise each year (Nuttall during the development of our final of the Service to designate critical 1840, p. 344; Munz 1974, p. 112; Payne determination, find that areas within habitat for four endangered plants, 1993, p. 194). This growth pattern those proposed do not meet the including A. pumila (Center for results in numerous aerial stems definition of critical habitat, that some Biological Diversity v. United States interconnected by a system of rhizomes, modifications to the described Fish and Wildlife, et al., Case No. 07– called a clone. All aerial stems growing boundaries are appropriate, or that areas CV–2378 NLS). The April 11, 2008, from the same root system are are not appropriate for exclusion under settlement agreement stipulates that the genetically identical and represent a section 4(b)(2) of the Act. Service shall submit a determination as single individual A. pumila plant You may submit your comments and to whether it is prudent to designate (called a genet) (Harper 1977, p. 26). materials concerning this proposed rule critical habitat for A. pumila, and if Growing rhizomes extend underground by one of the methods listed in the prudent, a proposed critical habitat beyond the aboveground limit of the ADDRESSES section. designation to the Federal Register for aerial stems into adjacent suitable We will post your entire comment— publication on or before August 20, habitat, allowing rhizomes of adjacent including your personal identifying 2009, and submit a final critical habitat individuals to intermingle. The information—on http:// designation to the Federal Register for underground interconnections can break www.regulations.gov. If you provide publication on or before August 19, or disintegrate, resulting in aerial stems personal identifying information in 2010. In this proposed critical habitat that are genetically identical but addition to the required items specified rule, we reaffirm that determination of physically separate (McGlaughlin and in the previous paragraph, such as your critical habitat for A. pumila is prudent. Friar 2007, p. 319). The extent to which

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rhizomes are capable of spreading has resources in some situations if not of self-pollination and of being self- been observed only in individuals managed. Occurrences are disjunct fertile (i.e., self-compatible, where translocated to previously unoccupied (generally 1 or more miles (1.6 or more pollen from an individual plant can sites. For example, A. pumila km) apart) and most locations have been fertilize an ovule on the same plant, individuals transplanted on the San subjected to disturbance such as resulting in production of viable seed) Diego National Wildlife Refuge in nonnative plant invasion, mining because other species of Ambrosia are January 2008 were documented to activities, development, grading, and capable of self-pollination (Payne 1976, produce new stems several inches away human encroachment on foot, horses, or pp. 171–172). The configuration of the within 10 months (by November 2008). vehicles (CNDDB 2008). male flowers in relation to the female Additionally, A. pumila individuals It is unclear why Ambrosia pumila flowers also implies opportunity for transplanted in 1997 to an unoccupied consistently occurs in areas near self-pollination (Dudek 2000, p. 16). site at Pilgrim Creek just south of waterways such as upper terraces of However, studies are needed to Marine Corps Base Camp Pendleton in rivers or other water bodies. The areas determine whether viable seed is San Diego County were documented to where the species is found do not produced through self-pollination in produce new stems up to 70 in (178 cm) necessarily provide high levels of soil this species (Johnson et al. 1999, p. 4; from the original stems within 2 years moisture, and A. pumila is adapted to Dudek 2000, p. 16; Dudek 2003, p. P- (by 1999) (Johnson et al. 1999, p. 3). dry conditions (Keck 1959, p. 1103; 332; McGlaughlin and Friars 2007, p. Because of the clonal nature of Munz 1974, p. 112; Dudek 2000, 329). Ambrosia pumila’s growth, it is not Appendix A; CNLM 2008, p. 18). Ambrosia pumila is thought to have possible to directly determine the Additionally, Service biologists have limited sexual reproductive output due number of genetically distinct plants observed green (that is, not desiccated) to low production of viable seed present in an area simply by counting aerial stem shoots of A. pumila after (Johnson et al. 1999, pp. 1-5; Dudek stems (McGlaughlin and Friar 2007, p. small amounts of precipitation and after 2000, pp. 16–17; Dudek 2003, pp. P- 320). McGlaughlin and Friar’s (2007, p. other vegetation in the observed area 331–P-332). Low seed production in this 323) analysis of clonality in A. pumila had desiccated. Ambrosia pumila may species is inferred by the lack of fertile determined that the aerial stem-to-genet require periodic flooding for dispersal of fruits on all but a few preserved A. ratio is roughly 10-to-1 on average seeds and roots dislodged during pumila museum specimens (Wallace (about 1 genet for every 10 aerial stems flooding, seed germination, or some 1999, pers. comm.), and field observers counted in a patch (cluster of stems)). A other segment of its life cycle. Further, have found seed production in A. patch constitutes a spatially distinct areas subject to periodic flooding appear pumila to be low (Dudek 2000, p. 17; cluster of stems within an occurrence, to be less amenable to competing Dudek 2003, p. P-332). Specific whereas an occurrence constitutes a nonnative and native plants. germination requirements of A. pumila group of individuals separated from the seed are unknown. A 1998 germination Life History next nearest group of individuals by a study using 22 A. pumila seeds of distance greater than or equal to 0.25 The reproductive biology of Ambrosia unknown viability collected from 3 sites mile (mi) (0.40 kilometer (km)). pumila has not been studied to the same at Mission Trails Regional Park did not extent as the more common Ambrosia result in any germination of seedlings Habitat species, such as A. artemisiifolia (Dudek 2000, Appendix B). The lack of Ambrosia pumila occurs primarily on (common ragweed) and A. trifida (giant germination could have been due to the upper terraces of rivers and drainages ragweed) (Dudek 2000, p. 16). Thus, seeds being nonviable or to (Beauchamp 1986, p. 94; Johnson et al. little is known about its pollination inappropriate germination conditions. 1999, p. 1; McGlaughlin and Friar 2007, system, seed production, seed dispersal, Regardless of what proportion of A. p. 321; California Natural Diversity and germination (Dudek 2000, p. 16; pumila seeds are viable, low seed Database data report for A. pumila 2008 Dudek 2003, p. P-331; McGlaughlin and production implies that little sexual (CNDDB 2008)); however, several Friars 2007, p. 320). reproduction is occurring in this patches of the plant occur within the Aerial stems of Ambrosia pumila species. Low levels of sexual watershed of a large vernal (ephemeral) sprout from their underground rhizomes reproduction is not an unusual pool in the Skunk Hollow preserve in in early spring after winter rains, and condition in clonal plant species Riverside County (Dudek 2003, p. P-326; flower between May and October (Keck (Sackville et al. 1987, p. 54). This CNDDB 2008). Within these areas, the 1959, p. 1103). Recently, however, reduced sexual reproduction may species is found in open grassland of Service biologists observed aerial stems negatively impact the ability of the native and nonnative plant species, and sprouting under dry conditions in late species to adapt to rapid environmental openings in coastal sage scrub (Johnson fall (Folarin 2008, pers. comm.). The change or environmental change over et al. 1999, p. 1; Dudek 2000, p. 18; plants senesce after the growing season, the long term, which is especially Dudek 2003, p. P-330; CNDDB 2008), leaving the root system in place from deleterious to a rare species with and primarily on sandy loam or clay which new aerial stems may sprout disjunct occurrences such as A. pumila soils (Johnson et al. 1999, p. 1; Dudek when environmental conditions are (Dudek 2000, p. 17; Dudek 2003, p. P- 2000, p. 18; CNDDB 2008; USDA 2008). appropriate (Keck 1959, p. 1103). 332). The species may also be found in Ambrosia pumila is presumed to be The dispersal strategy of Ambrosia ruderal habitat types (disturbed wind-pollinated because most other pumila is unknown. Ambrosia pumila communities containing a mixture of species of Ambrosia are wind- seeds lack structures that facilitate native and nonnative grasses and forbs) pollinated, and because biological dispersal by wind or passing animals such as fire fuel breaks and edges of dirt pollinators have not been observed (Nuttall 1840, p. 344; Payne 1993, p. roadways (Beauchamp 1986, p. 94; visiting A. pumila flowers (Johnson et 194). The species may depend on Payne 1993, p. 194; CNDDB 2008). al. 1999, p. 4; Dudek 2000, p. 16; Dudek periodic flooding of nearby waterways Nonnative grassland and ruderal habitat 2003, p. P-331). Alternatively, for dispersal of seeds and rhizomes that types provide adequate habitat for A. pollinator(s) of A. pumila may have can produce new aerial stems (Dudek pumila; however, nonnative plants can been extirpated (Dudek 2003, p. P-331). 2003, p. P-332). The longevity of out-compete A. pumila plants for The species is presumed to be capable individual plants is also unknown,

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although plants with clonal growth • San Diego National Wildlife Refuge areas is diminished. Since this species patterns tend to be long-lived near the unincorporated community of was listed, no additional occurrences (Watkinson and White 1985, pp. 44–45; Jamul in southern San Diego County. were documented in Mexico; the Tanner 2001, p. 1980). Finally, the According to information used to occurrences along the west coast of Baja longevity of seeds and potential for develop the final listing rule (67 FR California between Cabo Colonet and buried seed banks to develop in the soil 44372; July 2, 2002), roughly 44 ac (18 the U.S.-Mexico border are rapidly is unknown. ha)) of habitat in San Diego County was disappearing due to recreational occupied by this species in 12 development and agriculture (Dudek Genetics occurrences. This habitat estimate only 2003, p. P-330). includes areas where A. pumila stems Little is known about genetic diversity Critical Habitat or genetic distribution of Ambrosia were found in the 5 to 10 years prior to pumila across its range. McGlaughlin listing in 2002. Similar area estimate Background and Friar (2007) conducted a genetic data were unavailable for the 3 occurrences in Riverside County. Critical habitat is defined in section study of A. pumila to address 3(5)(A) of the Act as: conservation and management of the Since this species was listed, one occurrence was identified in Riverside (1) The specific areas within the species. They found that each geographical area occupied by the population they examined contained County about 1 mile (1.6 km) south of Skunk Hollow along San Diego species, at the time it is listed in multiple genetically distinct accordance with the provisions of individuals, but no individuals that aqueduct, from a survey report (AMEC 2006, pp. 12–13; CNDDB 2008), and one section 4 of the Act, on which are found occurred in more than one population. those physical or biological features Therefore, they concluded that in order occurrence was identified in unincorporated San Diego County on (a) Essential to the conservation of the to maintain a level of genetic diversity the west side of State Route 76, south of species, and capable of responding to variable Olive Hill Road (see ‘‘Criteria Used to (b) Which may require special ecological conditions, conservation of Identify Critical Habitat’’ below). Also management considerations or the species should involve the since listing, we determined that one protection; and protection and maintenance of as many occurrence, on the west side of (2) Specific areas outside the populations of A. pumila as possible Interstate 15 just north of Lake Hodges geographical area occupied by the (McGlaughlin and Friar 2007, pp. 319 and south of Via Rancho Parkway in species at the time it is listed, upon a and 329). San Diego County, previously identified determination by the Secretary of the Geographic Range and Status as extirpated or not viable in the final Interior that such areas are essential for listing rule is now extant and viable. the conservation of the species. Ambrosia pumila is distributed in The documented range of Ambrosia Conservation, as defined under southern California from northwestern pumila in Mexico at the time of listing section 3 of the Act, means the use of Riverside County, south through extended from Cabo Colonet south to all methods and procedures that are western San Diego County, to Lake Chapala in north-central Baja necessary to bring an endangered or northwestern Baja California, Mexico California, Mexico (Burrascano and threatened species to the point at which (CNDDB 2008). It is generally found at Hogan 1996, p. 8). Two of these three the measures provided pursuant to the or below elevations of 1600 feet (ft) (487 occurrences were confirmed by David Act are no longer necessary. Such meters (m)) in Riverside County, and Hogan, formerly with the Southwest methods and procedures include, but 600 ft (183 m) in San Diego County Center for Biological Diversity (now are not limited to, all activities (CNDDB 2008). When listed as Center for Biological Diversity), and associated with scientific resources endangered under the Act in 2002, 15 Cindy Burrascano of the California management such as research, census, occurrences of A. pumila were known Native Plant Society (CNPS), San Diego law enforcement, habitat acquisition in the United States: 3 in Riverside Chapter (Burrascano and Hogan 1996, p. and maintenance, propagation, live County and 12 in San Diego County (67 8). Although additional occurrences trapping and transplantation, and in the FR 44372; July 2, 2002). As noted may have existed in Baja California, the extraordinary case where population previously, the term ‘‘occurrence’’ as species was not considered to be pressures within a given ecosystem used in this proposed critical habitat widespread at the time of listing due to cannot otherwise be relieved, may rule is defined as one or more A. pumila the lack of appropriate habitat and include regulated taking. plants more than 0.25 mi (0.40 km) from impacts from agriculture and urban Critical habitat receives protection another individual or group of development, especially near the coast under section 7 of the Act through the individuals (Bittman 2002, in litt.). More (Burrascano and Hogan1996, p. 8). prohibition against Federal agencies than 80 percent of the occupied sites All currently known occurrences are carrying out, funding, or authorizing identified in the final listing rule were believed to have been present at the activities that result in the destruction concentrated in the following 6 areas: time of listing because plants with or adverse modification of critical • Near Alberhill about 2.1 mi (3.5 km) clonal growth patterns tend to be long- habitat. Section 7(a)(2) requires to the northwest of the Nichols Road lived (Watkinson and White 1985, pp. consultation on Federal actions that site in Riverside County; 44–45; Tanner 2001, p. 1980). Although may affect critical habitat. The • Along Nichols Road in the City of stems may die and portions of the designation of critical habitat does not Lake Elsinore, Riverside County; rhizome may disintegrate over time, affect land ownership or establish a • except under extreme conditions refuge, wilderness, reserve, preserve, or Near the Skunk Hollow vernal pool enough of the rhizome survives from other conservation area. Such in southwestern Riverside County; one growing season to the next to designation does not allow the • Adjacent to State Route 76 in support continued growth of an government or public to access private northern San Diego County; individual plant. Also, because the lands. Such designation does not • Mission Trails Regional Park, in the plants produce very few if any seeds, require implementation of restoration, City of San Diego, San Diego County; the ability of the plant to disperse into recovery, or enhancement measures by and and colonize previously unoccupied the landowner. Where a landowner

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seeks or requests Federal agency during the listing process for the substance of future recovery plans, funding or authorization for an activity species. Additional information sources habitat conservation plans (HCPs), or that may affect a listed species or may include the recovery plan for the other species conservation planning critical habitat, the consultation species, articles in peer-reviewed efforts if information available at the requirements of section 7(a)(2) would journals, conservation plans developed time of these planning efforts calls for apply, but even in the event of a by States and counties, scientific status a different outcome. destruction or adverse modification surveys and studies, biological finding, the Federal action agency’s and assessments, or other unpublished Physical and Biological Features the applicant’s obligation is not to materials and expert opinion or In accordance with section 3(5)(A)(i) restore or recover the species, but to personal knowledge. of the Act and regulations at 50 CFR implement reasonable and prudent Habitat is dynamic, and species may 424.12, in determining which areas alternatives to avoid destruction or move from one area to another over within the geographical area occupied adverse modification of critical habitat. time. We recognize that climate change by the species at the time of listing to To be considered for inclusion in a may cause changes in the arrangement propose as critical habitat, we consider critical habitat designation, habitat of occupied habitat patches. Current the physical and biological features that within the geographical area occupied climate change predictions for terrestrial are essential to the conservation of the by the species at the time of listing must areas in the Northern Hemisphere species and that may require special contain physical and biological features indicate warmer air temperatures, more management considerations or that are essential to the conservation of intense precipitation events, and protection. Those features are the the species, and be included only if increased summer continental drying primary constituent elements (PCEs) those features may require special (Field et al. 1999, pp. 1–3; Hayhoe et al. laid out in the appropriate quantity and management considerations or 2004, p. 12422; Cayan et al. 2005, p. 6; spatial arrangement for the conservation protection. Critical habitat designations Intergovernmental Panel on Climate of the species. The PCEs include, but are identify, to the extent known using the Change 2007, p. 11). However, not limited to: best scientific data available, habitat predictions of climatic conditions for (1) Space for individual and areas that provide essential life cycle smaller subregions such as California population growth and for normal needs of the species; that is, areas on remain uncertain. It is unknown at this behavior; which the physical and biological time if climate change in California will (2) Food, water, air, light, minerals, or features are found laid out in the result in a warmer trend with localized other nutritional or physiological appropriate quantity and spatial drying, higher precipitation events, or requirements; arrangement essential to the other effects. Thus, the information (3) Cover or shelter; conservation of the species. Under the currently available on the effects of (4) Sites for breeding, reproduction, Act and regulations at 50 CFR 424.12, global climate change and increasing and rearing (or development) of we can designate as critical habitat areas temperatures does not make sufficiently offspring; and outside the geographical area occupied precise estimates of the location and (5) Habitats that are protected from by the species at the time it is listed magnitude of the effects, so we are disturbance or are representative of the only when we determine that those unable to determine what, if any, historical, geographical, and ecological areas are essential for the conservation additional areas would be needed. distributions of a species. of the species and that designation However, we recognize that critical Little is known about the habitat limited to those areas occupied at the habitat designated at a particular point specificity and characteristics of this time of listing would be inadequate to in time may not include all of the species. Therefore, the PCEs for ensure the conservation of the species. habitat areas that we may later Ambrosia pumila are based on our Section 4 of the Act requires that we determine are necessary for the recovery assessment of the ecosystem settings in designate critical habitat on the basis of of the species. For these reasons, a which the species has most frequently the best scientific and commercial data critical habitat designation does not been detected. available. Further, our Policy on signal that habitat outside the Information Standards Under the designated critical habitat area is Space for Individual and Population Endangered Species Act (published in unimportant or may not be required for Growth and for Normal Behavior the Federal Register on July 1, 1994 (59 recovery of the species. Clonal Growth—Rhizome Spread and FR 34271)), the Information Quality Act Areas that are important to the New Aerial Stems (section 515 of the Treasury and General conservation of the species, but are Government Appropriations Act for outside the critical habitat designation, Individual Ambrosia pumila plants Fiscal Year 2001 (Pub. L. 106–554; H.R. will continue to be subject to spread by underground rhizomes to 5658)), and our associated Information conservation actions implemented produce a group of genetically identical Quality Guidelines, provide criteria, under section 7(a)(1) of the Act. Areas aerial stems—a clone. Growing establish procedures, and provide that support populations are also subject rhizomes extend underground beyond guidance to ensure that our decisions to the regulatory protections afforded by the extent of the aerial stems into are based on the best scientific data the section 7(a)(2) jeopardy standard, as adjacent suitable habitat, and rhizomes available. They require our biologists, to determined on the basis of the best of adjacent plants likely intermingle to the extent consistent with the Act and available scientific information at the a degree. The distance rhizomes extend with the use of the best scientific data time of the agency action. Federally beyond the standing aerial stems is available, to use primary and original funded or permitted projects affecting difficult to measure because of the sources of information as the basis for listed species outside their designated difficulty in investigating an intact, recommendations to designate critical critical habitat areas may still result in underground rhizome system. habitat. jeopardy findings in some cases. The extent and configuration of the When we are determining which areas Similarly, critical habitat designations visible portion (aerial stems) of A. should be proposed as critical habitat, made on the basis of the best available pumila patches can change from one our primary source of information is information at the time of designation growing season to the next (Martin generally the information developed will not control the direction and 2005, p. 3; City of San Diego 2008a, p.

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1). For example, see Figure 4 in Martin plant is always found on river terraces pumila seeds may require soaking in 2005, in which patches of A. pumila are or within the watersheds of vernal flood waters or scarification as they are shown to change in shape and size (up pools. churned about with debris in flood to several square meters) from 2000 to waters to germinate. Additionally, A. Light 2005, with some patches not producing pumila may depend on floods to any stems in 2005 (some of the patches Ambrosia pumila is limited to open or disperse rhizomes and seeds (Dudek that did not produce stems in 2005 were low-growing plant communities, which 2003, p. P-332) and to create space for observed to produce stems in 2008 implies that the species is not shade- new stems by removing or limiting the (Folarin 2008, pers. comm.)). These tolerant (Dudek 2000, pp. 18–19). growth of competitors. changes in patch size and shape are Ambrosia pumila stems amid taller Presuming Ambrosia pumila is wind- perhaps due to differences in available vegetation obtain adequate sunlight by pollinated, as discussed in the ‘‘Life moisture or competition from other growing taller (etiolation) and more History’’ section above, the species plants (Martin 2005, p. 3; City of San slender compared to those in more open requires sufficient airflow through Diego 2008a, p. 1). Based on these and areas (Dudek 2000, p. 19), which also inflorescences to pick up and carry other observations, we conclude that the implies the species is not shade- pollen (McGlaughlin and Friars 2007, p. rhizome system of a group of A. pumila tolerant. 329). This is another reason (in addition to not being shade-tolerant) that A. stems likely occupies a greater Soil underground area than occupied by the pumila may require habitat containing stems above ground at any given time, Ambrosia pumila is found primarily primarily low-growing plants—low- with aerial stems produced only where on sandy loam or clay soils including growing plants do not block or conditions are appropriate. Thus, to (but not limited to) the Placentia (sandy dramatically reduce airflow to plants of ensure that a habitat area does not loam), Diablo (clay), and Ramona (sandy A. pumila’s stature, which is generally exclude unseen underground portions loam) series (Dudek 2000, Appendix A; less than 12 in (30 cm) tall of A. pumila plants, the area needs to CNDDB 2008). These soil types likely (McGlaughlin and Friars 2007, p. 329). include additional surface area beyond are particularly conducive to the growth Ambrosia pumila is presumed to be the visible surface area covered by the and persistence of A. pumila because it self-compatible (an individual can aerial stems. is rarely found growing on other produce viable seed using its own substrate types (such as gravel). pollen), but this aspect of the species’ Germination of Seeds and Spread of Chemical soil attributes and other reproductive strategy has not been well Seedlings abiotic and biotic characteristics have examined. In a recent study, another It is unclear to what extent and with been measured and documented for Ambrosia species previously thought to what frequency Ambrosia pumila Ambrosia pumila occurrences at Skunk be self-compatible was found not to be reproduces by seed. Presuming at least Hollow (Riverside County), and Mission self-compatible (Friedman and Barrett low rates of sexual reproduction, space Trails Regional Park and San Diego 2008, p. 4). If A. pumila likewise is not is needed for new plants to germinate, National Wildlife Refuge (San Diego self-compatible, genetically distinct grow, and spread. However, we are not County) (Dudek 2000, Appendix A; individuals in close proximity to one aware of any research that would CNLM 2008, pp. 6–7, 12, and 18), another may be crucial to maintaining provide the information needed to including pH, percent organic matter, sexual reproduction in the species assess the species’ germination and soil moisture, and elemental (McGlaughlin and Friars 2007, p. 329). seedling needs. composition. These measurements did Habitats Protected from Disturbance or not provide consistent results across the Representative of the Historical, Food, Water, Air, Light, Minerals, or range of the species; thus, we are unable Other Nutritional or Physiological Geographical, and Ecological to make generalizations as to needs of Distributions of the Species Requirements the species as far as soil attributes are concerned. Ambrosia pumila occurs most Water frequently on upper terraces of rivers Specific water needs of the species are Temperature (flat or gently sloping areas of 0 to 42 unknown. Ambrosia pumila is adapted We have seen no reports of data on percent slopes are typical for terraces on to dry conditions which occur annually the tolerance of Ambrosia pumila to which A. pumila occurrences are found, throughout its range (Keck 1959, p. climatic extremes. Temperature is near, but not directly adjacent to, the 1103; Munz 1974, p. 112; Dudek 2000, thought to potentially play a role in river channel) and other drainages in Appendix A; CNLM 2008, p. 18). inducing (or prohibiting) seed western Riverside County, western San Service biologists have observed green germination (Johnson 1999, p. 5), Diego County, and northwestern Baja (not desiccated) aerial stem shoots after although there is limited information at California (Beauchamp 1986, p. 94; small amounts of precipitation and after this time as to whether this species Johnson et al. 1999, p. 1; McGlaughlin annual vegetation in the area had reproduces via seed. and Friar 2007, p. 321; CNDDB 2008). desiccated, implying that either A. These areas are or have been associated pumila requires less water than other Sites for Breeding, Reproduction, or with a natural flood disturbance regime. grassland plants, that the underground Rearing (or Development) of Offspring The species is primarily associated with perennial rhizome system has some As stated above under the ‘‘Life grassland and ruderal communities, and capacity to store enough water to History’’ section, little is known about openings in coastal sage scrub (Johnson sustain growth, or both (Folarin 2008, sexual reproduction in Ambrosia et al. 1999, p. 1; Dudek 2000, p. 18; pers. comm.). Additionally, we believe pumila. Because occurrences are Dudek 2003, p. P-330; CNDDB 2008). In that periodic flooding may be necessary consistently found on the upper terraces Riverside County, A. pumila occurs in to some segment of the plant’s life of rivers and other waterways, periodic ruderal and nonnative grassland history (such as seed germination, flooding of these waterways likely plays communities adjacent to creeks and dispersal of seeds and rhizomes) or to or likely has played a role in the life other smaller drainages (for example, maintain some essential aspect of its history of the plant. For example, Temescal (Alberhill) Creek and Santa habitat, because of the indicator that the Johnson (1999, p. 5) postulated that A. Gertrudis Creek) (Dudek 2003, p. P-326;

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CNDDB 2008). Ambrosia pumila also occur, we have identified two PCEs for conservation of the species (see occurs in nonnative grassland A. pumila: questions 2 and 3 in the Public community adjacent to and within the 1. Sandy loam or clay soils (regardless Comments section). watershed of Skunk Hollow vernal pool of disturbance status), including (but Special Management Considerations or in Riverside County (Dudek 2003, p. P- not limited to) the Placentia (sandy Protection 326; CNDDB 2008). In San Diego loam), Diablo (clay), and Ramona (sandy County, A. pumila is more often found loam) soil series that occur on near (but When designating critical habitat, we adjacent to larger waterways (for not directly adjacent to) a river, creek, assess whether the physical and example, San Luis Rey River, San Diego or other drainage, or within the biological features within the River, and Sweetwater River), although watershed of a vernal pool, and that geographical area occupied by the the species is also often found occur on an upper terrace (flat or gently species at the time of listing contain associated with smaller drainages and sloping areas of 0 to 42 percent slopes features that are essential to the washes (CNDDB 2008). are typical for terraces on which A. conservation of the species and that may Occurrences in Riverside County are pumila occurrences are found). require special management found at much higher elevation than in 2. Grassland or ruderal habitat types, considerations or protection. All areas San Diego County. For example, the or openings within coastal sage scrub, proposed for designation as critical occurrence at Skunk Hollow in on the soil types and topography habitat will require some level of Riverside County is 1,350 ft (411 m) described in PCE 1, that provide management to address the current and above sea level, while the occurrences at adequate sunlight, and airflow for wind future threats to the physical and Mission Trails Regional Park and San pollination. biological features essential to the Based on our current knowledge of Diego National Wildlife Refuge in San conservation of Ambrosia pumila. In all the needs of the species, we believe the Diego County are about 315 ft and 360 units, special management will be need for space for individual and ft (96 m and 110 m) above sea level, required to ensure that the habitat is population growth and normal behavior respectively (CNLM 2008, p. 7)). able to provide for the growth and is met by PCE 2, and areas for reproduction of the species. The documented range of Ambrosia reproduction, water, light, and soil are Researchers estimate that Ambrosia pumila in Mexico at the time of listing provided by PCEs 1 and 2. These areas pumila historically was known from extended from Cabo Colonet south to provide nutrients, moisture, and over 50 locations in San Diego and Lake Chapala in north-central Baja proximity to water features that provide California. We have no information periodic flooding presumed necessary Riverside Counties, but the number of regarding additional occurrences in for the plant’s persistence. extant occurrences has been Mexico, or the physical and biological With this proposed designation of dramatically reduced as much of its features essential to the conservation of critical habitat, we intend to conserve habitat has been impacted by human the species there. the physical and biological features that activities (Burrascano and Hogan 1997, are essential to support the life-history p. 7; Dudek 2000, p. 17; CNDDB 2008). Primary Constituent Elements for A detailed discussion of threats to A. Ambrosia pumila functions that are the basis for the proposal. All units and subunits pumila and its habitat can be found in Under the Act and its implementing proposed in this rule as critical habitat the final listing rule (67 FR 44372). The regulations, we are required to identify contain sufficient PCEs in the primary threats impacting the physical the known physical and biological appropriate quantity and spatial and biological features essential to the features, called primary constituent arrangement to provide for one or more conservation of A. pumila that may elements (PCEs), within the of the life-history functions of A. require special management geographical area occupied by Ambrosia pumila. considerations or protection within the pumila at the time of listing that are We are soliciting public comment for proposed critical habitat include, but essential to the conservation of the information to help us more specifically are not limited to, the following (67 FR species and which may require special identify PCEs and essential habitat for 44372): management considerations or Ambrosia pumila. There is a lack of • Habitat destruction caused by urban protection. Again, the physical and available information regarding what development, including highway and biological features are those PCEs laid constitutes essential habitat for this utility corridor construction and out in a specific spatial arrangement and species. Additionally, the available maintenance, highway expansion, and quantity determined to be essential to information does not identify a development of recreational facilities the conservation of the species. Because consistent pattern in specific life-history (such as golf courses and campgrounds). not much is known about the specific requirements and habitat types where These activities can remove the PCEs by needs and characteristics of this species, Ambrosia pumila is found. For these removing soil (by grading) and changing the PCEs are based on observed traits of reasons, the PCEs in this proposed rule Ambrosia pumila habitat to urban land, the habitat types in which the species is are broad and based on our assessment which is unsuitable for the species. most often found. All areas we are of the ecosystem settings in which the • Soil compaction caused by the proposing as critical habitat for A. species has most frequently been creation of trails by hikers, horses, and pumila were occupied at the time the detected and speculation regarding its vehicles. Ambrosia pumila appears to species was listed, occur within the life history. We specifically seek be tolerant to some level of disturbance species’ historical geographic range, and information that may assist us in caused by trail creation and use; it is contain physical and biological features defining those physical and biological often found in the disturbed areas along to support at least one life-history features essential to the conservation of margins of dirt trails. However, it is function. the species which may require special found less often on trails, implying that Based on the above needs and our management considerations or although the appropriate soil type might current knowledge of the life history, protection, or in identifying specific be present, soil compaction can alter the biology, and ecology of Ambrosia areas outside the geographical area physical characteristics of the soil such pumila, and the characteristics of the occupied by the species at the time it that the soil can no longer support areas where the species is known to was listed that may be essential to the growth of the plant.

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• Habitat alteration caused by including only occupied areas in critical The occurrences identified since listing nonnative plant species that may, if habitat is sufficient for the conservation likely were in existence for many years present in large enough numbers, of the species. In San Diego County, and were only recently detected due to change the plant community to the where the pattern of extirpated increased awareness of this species. extent that A. pumila plants can no occurrences reflects a loss of We are also proposing to designate longer receive adequate sunlight and occurrences from each of the watersheds critical habitat in some areas where A. airflow. in which the species occurs rather than pumila was thought to be extirpated or • Alteration of hydrology and a complete loss from those watersheds, where, though extant, A. pumila was floodplain dynamics (such as the areas occupied at the time of listing not considered viable at the time of channelization and water diversions) include the known historical range of listing. We conducted surveys of (an additional threat not discussed in the species (CNDDB 2008). In Riverside historical occurrences as part of the the listing rule), which can change the County, the loss of an occurrence near background research for this proposed frequency of flooding in occupied areas the Riverside Airport reflects a loss to rule. We found one documented or eliminate periodic flooding presumed the geographical extent of the range in occurrence area east of Lake Hodges in necessary for the plant’s persistence that county (Provance and Sanders San Diego County that was thought to be altogether, or change groundwater levels 2001, p. 47). extirpated or nonviable because the that could change the plant community We also reviewed available occurrence had not been seen since to the extent that A. pumila plants can information that pertains to the habitat 1999, and because records did not no longer receive adequate sunlight and requirements of this species, although contain sufficient information to locate airflow. A. pumila has not been well studied and the occurrence site. Our survey found Special management considerations little is known about its habitat this site does contain a viable or protection are required within critical specificity, characteristics, and breeding occurrence of A. pumila and meets the habitat areas to address these threats. system. Additionally, data from criteria set out in this rule for A. pumila Management activities that could different information sources at times critical habitat. The site was located ameliorate these threats include fencing conflict, further complicating the task of after the species was listed and found to Ambrosia pumila occurrences and discerning the specific habitat contain a large population of A. pumila. providing signage to discourage requirements of the species. We used We are not proposing to designate any encroachment by hikers, horses, and off numerous sources of information, such areas outside the geographical area road vehicle users; control of nonnative as materials and data included in occupied by the species at the time of plants using methods shown to be reports submitted to the Service during listing, and all of the areas we are effective (for examples, see CNLM section 7 consultations and other project proposing to designate are currently 2008); guiding the design of reviews, and by biologists holding occupied by the species. All units and development projects to avoid impacts section 10(a)(1)(A) recovery permits; subunits proposed contain the PCEs to A. pumila habitat; and restoring and research published in peer-reviewed believed to be essential to the maintaining hydrology and floodplain articles and presented in academic conservation of this species. dynamics of waterways associated with theses and agency reports; regional A. pumila occurrences where feasible. Geographic Information System (GIS) Methods The designation of critical habitat coverages for area calculations and As required by section 4(b)(1)(A) of does not imply that lands outside of mapping; and data collected in the field the Act, we use the best scientific and critical habitat do not play an important by Service biologists. role in the conservation of Ambrosia We are proposing to designate critical commercial data available in trying to pumila. Federal activities that may habitat in areas that we determined determine areas that contain the features affect areas outside of critical habitat are were occupied by the species at the time that are essential to the conservation of still subject to review under section 7 of of listing, and that contain the PCEs in Ambrosia pumila. We used the best the Act if they may affect A. pumila. the quantity and spatial arrangement to scientific data available to select areas The prohibitions of section 9 of the Act support life history functions essential that we believe may possess those applicable to listed plant species also to the conservation of the species. This physical and biological features continue to apply both inside and includes two areas occupied by essential to the conservation of the outside of designated critical habitat. occurrences detected after Ambrosia species, and that may require special pumila was listed. We have concluded management considerations or Criteria Used To Identify Critical that these areas were occupied at the protection. Habitat time the species was listed because After identifying the PCEs, we As required by section 4(b) of the Act, individuals of species with a clonal followed these steps to delineate critical we used the best scientific and growth habit like A. pumila are usually habitat: commercial data available in long-lived (Watkinson and White 1985, (1) We identified areas occupied by determining areas within the pp. 44–45; Tanner 2001, p. 1980). The Ambrosia pumila at the time of listing geographical area occupied at the time occurrence near Santa Gertrudis Creek as extant occurrences, where an of listing that contain the features was found during a survey for a occurrence is defined as an occupied essential to the conservation of subtransmission line project in 2006 habitat area separated by 0.25 mi (0.40 Ambrosia pumila, and areas outside of (AMEC 2006, p. 12). The occurrence at km) or more from the next nearest the geographical area occupied at the the intersection of State Route 76 and occupied habitat area. time of listing that are essential to the Olive Hill Road was found during a (2) We determined that due to the lack conservation of A. pumila, or both. All general survey for A. pumila in 2006 of specific information regarding the essential areas were occupied at the (CNDDB 2008). To our knowledge, the needs of the species, we are unable to time of listing, as discussed below. As areas had not been surveyed for A. identify specific areas outside the a result, we are not currently proposing pumila previously, and we have no geographical area occupied by the any areas outside the geographical area reason to believe the plant was imported species at the time it was listed that may presently occupied by A. pumila or had dispersed into these areas from be essential to the conservation of the because we have determined that other areas after A. pumila was listed. species.

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(3) We removed all areas where the the time of listing. We used these data (4) We estimated the distance that the species occurs in habitat of low quality to delineate GIS polygons around root system of an occurrence likely for growth and propagation (such as Ambrosia pumila occurrences. extends beyond the aboveground extent pavement areas or cracks within paved We reviewed the data that we of the occurrence by measuring the areas). Although occupied, we believe compiled to ensure its accuracy. We distance of each GIS polygon these occurrences are not capable of checked each data point in our database representing an Ambrosia pumila patch providing for the full life-history to ensure that it represented a site to the nearest neighboring patch. As requirements of this species and are not documented by a herbarium voucher or mentioned above, an occurrence is likely to contribute to its long-term observation of Ambrosia pumila and defined by CNDDB as an occupied conservation; therefore, we did not was not a duplicate voucher or habitat area separated by 0.25 mi (0.40 consider these locations as containing observation of another occurrence in the km) or more from next nearest occupied essential features as habitat and did not database. Duplicates were removed from habitat area. A patch is defined herein include them in critical habitat. our database. Secondly, we checked as a distinct cluster of stems within an (4) To define an outer boundary for each data point to ensure that it was occurrence. We estimated the average each patch that captures the existing correctly mapped. Data points that did distance of underground rhizome underground rhizome system (which not match the description for the expansion beyond the aboveground extends beyond the visible aerial stems original herbarium collection or aerial stems as 1,181 ft (260 m). We of plants within each occurrence), we observation were remapped in the expanded the outer boundary of the added the average distance between the correct location, if possible. We above-ground extent of each occurrence visible (aerial stems) portions of each removed observations where the by 1,181 ft (260 m) to account for the Ambrosia pumila patch and the next location could not be determined from underground rhizome system extending nearest patch to the limits of the visible available data or site visits. beyond the area occupied by visible portion of each patch. Using GIS data, We then determined which areas are stems. We believe this method we found the average distance between currently occupied. For areas where we adequately captures the extent of clusters of stems in adjacent patches to have past occupancy data for Ambrosia individual occurrences. be approximately 1,181 ft (260 m), and pumila, we assumed the area remains (5) We removed any areas within the we added this distance to the visible occupied unless: (1) Three or more expanded outer boundary of an outer limit of each occurrence to surveys for the species did not find A. occurrence where habitat type was not delineate the presumed expanse of the pumila; (2) the site was significantly grassland, ruderal, or open areas within occurrence that also includes the disturbed (for example, converted to coastal sage scrub habitat, using the underground rhizomes. development) since the last observation habitat types assigned to relevant areas (5) We removed any area within the of the species at that location; or (3) in our GIS database, and personal outer boundary of an occurrence where specific location information for the site observations of sites by Service habitat type was not grassland, ruderal, was lacking, and field surveys carried biologists and other researchers or land or coastal sage scrub. out in conjunction with this proposed managers. We describe how we implemented critical habitat determination could not Based on the results of this each of the steps above in detail below. locate the occurrence. methodology, we are proposing to (1) We identified all occurrences of (2) We determined that there are no designate 7 units that include 8 subunits Ambrosia pumila—those known to exist specific areas outside the geographical as critical habitat for Ambrosia pumila. at the time of listing and those detected area occupied by the species at the time After applying the above criteria and since listing. We compiled data from the it was listed that are essential to the methods, we mapped the critical habitat following sources to create our database conservation of the species. Information unit boundaries at each of these seven of A. pumila occurrences: (1) Data used found during the Service’s research in units as GIS polygons around known in the 2002 listing rule for A. pumila (67 connection with this proposed action occurrences. Critical habitat boundaries FR 44372; July 2, 2002); (2) the indicated that the geographical area were delineated as polygons California Natural Diversity Database occupied by the species at the time it encompassing the extent of habitat occurrence data report for A. pumila was listed provides sufficient resources believed to contain the physical and and accompanying GIS records (CNDDB for the conservation of the species. We biological features essential to the 2008, pp. 1–49); (3) the data from the do not have sufficient information conservation of the species that may Consortium of California Herbaria and regarding the specific needs of the require special management accompanying Berkeley Mapper GIS species to determine if any unoccupied considerations or protection. records (Consortium of California areas are essential for the conservation When determining the proposed Herbaria 2008, pp. 1–5); (4) the Western of the species. critical habitat boundaries, we made Riverside County Multiple Species (3) We removed areas where every effort to avoid including Habitat Conservation Plan (Western Ambrosia pumila occurs in habitat of developed areas such as lands occupied Riverside County MSHCP) species GIS low quality for growth and propagation by buildings, paved areas, and other database; and (5) the Carlsbad Fish and (such as pavement areas or cracks structures that lack PCEs for Ambrosia Wildlife Office’s internal species GIS within paved areas). Although pumila. The scale of the maps we database, which includes the species occupied, we did not consider these prepared under the parameters for data used for the San Diego Multiple locations for critical habitat, as these publication within the Code of Federal Species Conservation Program (MSCP) occurrences are not likely to contribute Regulations may not reflect the and the San Diego Multiple Habitat to the long-term conservation of the exclusion of such developed areas. Any Conservation Plan (MHCP), reports from species. We made this determination developed structures and the land under section 7 consultations, and Service using site descriptions in the California them inadvertently left inside critical observations of A. pumila (CFWO Natural Diversity Database, talking to habitat boundaries shown on the maps internal species GIS database). As Service biologists, other researchers, of this proposed critical habitat are discussed in detail earlier in this and land managers familiar with the excluded by text in this rule and are not section, we consider all extant areas in question, and visiting and proposed for critical habitat designation. occurrences to have been in existence at evaluating sites in person. Therefore, if the critical habitat is

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finalized as proposed, Federal actions management considerations or critical habitat for Ambrosia pumila, involving these lands would not trigger protection, or in identifying specific including lands under Federal, State, section 7 consultation with respect to areas outside the geographical area other government, and private critical habitat and the requirement of occupied by the species at the time it ownership. We are proposing 7 units no adverse modification unless the was listed that may be essential to the that include 8 subunits as critical specific actions would affect the species conservation of the species (see habitat for A. pumila. Table 1 identifies or PCEs in adjacent critical habitat. questions 2 and 3 in the Public the approximate area of each proposed We are soliciting public comment for Comments section). critical habitat unit and subunit by information that may assist us in landownership. defining those physical and biological Proposed Critical Habitat Designation features essential to the conservation of We determined that approximately the species which may require special 802 ac (324 ha) meet our definition of

TABLE 1—PROPOSED CRITICAL HABITAT UNITS FOR Ambrosia pumila. Area estimates reflect all land within critical habitat unit boundaries.

Federally Owned State or Local Privately Owned Land Total Area Location Land Government Owned (California Natural Diversity Data- Land base(CNDDB) Occurrence Number) acres hectares acres hectares acres hectares acres hectares

RIVERSIDE COUNTY

Unit 1: Temescal Creek watershed — — 23.4 9.5 88.4 35.8 111.8 45.3

1A. Alberhill (*) — — 23.4 9.5 18.0 7.3 41.4 16.8

1B. Nichols Road (44) — — — — 70.4 28.5 70.4 28.5

Unit 2: Skunk Hollow Vernal Pool watershed — — — — 118.1 47.8 118.1 47.8 (22)

Unit 3: Santa Gertrudis Creek watershed — — — — 32.5 13.2 32.5 13.2 (55)

SUBTOTAL: — — 23.4 9.5 239.0 96.8 262.4 106.3

SAN DIEGO COUNTY

Unit 4: San Luis Rey River watershed — — 2.4 1.0 102.5 41.5 104.9 42.5

4A. Calle de la Vuelta (43) — — — — 29.6 12.0 29.6 12.0

4B. Olive Hill Road (16) — — 0.3 0.1 34.8 14.1 35.0 14.2

4C. Jeffries Ranch (45) — — 2.2 0.9 38.1 15.4 40.3 16.3

Unit 5: San Dieguito River watershed – Lake — — 15.8 6.4 5.3 2.2 21.2 8.6 Hodges (14)

Unit 6: San Diego River watershed – — — 171.5 69.4 26.4 10.7 197.8 80.1 Mission Trails Regional Park (12)

Unit 7: Sweetwater River watershed 145.5 58.9 12.6 5.1 57.1 23.1 215.2 87.1

7A. Jamul Road (1) — — 2.5 1.0 36.4 14.7 38.9 15.7

7B. San Diego National Wildlife Refuge (48) 117.6 47.6 — — 15.0 6.1 132.5 53.6

7C. Steele Canyon Bridge (34) 27.9 11.3 10.1 4.1 5.8 2.3 43.7 17.7

SUBTOTAL: 145.5 58.9 202.3 81.9 191.3 77.4 539.1 218.2

TOTAL 145.5 58.9 225.7 91.4 430.4 174.2 801.6 324.4 * Occurrence not entered in CNDDB. **Values in this table may not sum due to rounding.

The areas we are proposing as critical biological features essential to the pumila that may require special habitat currently provide all habitat conservation of the species. These areas management considerations or components necessary to meet the constitute our best assessment of areas protection. We are not proposing any primary biological needs of Ambrosia determined to be occupied at the time unoccupied areas or areas outside of the pumila, as defined by the physical and of listing that contain the PCEs for A. species’ historical range because we

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determined that occupied lands within portions of Subunit 1A are conserved Unit 2: Skunk Hollow Vernal Pool the species’ historical range are and are being managed for the County Watershed sufficient for the conservation of A. by the Western Riverside County Unit 2 is located in the Barry Jones pumila. Each unit and subunit includes Regional Conservation Authority in (Skunk Hollow) Wetland Mitigation suitable habitat that will allow for accordance with Western Riverside Bank in unincorporated Riverside population growth and growth of aerial MSHCP guidelines. Please see the County. The mitigation bank is located stems from parts of the root system. ‘‘Special Management Considerations or east of the City of Murrieta and is Presented below are brief descriptions Protection’’ section of this proposed rule loosely bounded by Browning Street on of all subunits and reasons why they for a discussion of the threats to A. the north, the edge of an unnamed meet the definition of critical habitat for pumila habitat and potential canyon on the east, Murrieta Hot Ambrosia pumila. The subunits are management considerations. Springs Road on the south, and Pourroy listed in order geographically north to Avenue on the west. Unit 2 consists of south and east to west. Subunit 1B: Nichols Road Subunit 1B is located about 2.1 mi approximately 118 ac (48 ha) of Unit 1: Temescal Creek Watershed (3.5 km) southeast of Subunit 1A privately owned land managed by Unit 1 is located in western Riverside (Alberhill), on the north and south sides Center for Natural Lands Management. County and consists of two subunits of Nichols Road, in Riverside County, This unit, like all other extant totaling approximately 23 ac (10 ha) of California. This subunit is near the occurrences, is essential to the County-owned land, and 88 ac (36 ha) southeastern base of Alberhill conservation of Ambrosia pumila of private land, for a total of Mountain, just west of Durant Road and because of its contribution to the genetic approximately 112 ac (45 ha) (values do Temescal Creek. Subunit 1B consists of diversity of the species (McGlaughlin not sum due to rounding). approximately 70 ac (28 ha) of privately and Friar 2007, p. 329). This unit was occupied at the time of listing and Subunit 1A: Alberhill owned land. This subunit was occupied at the time of listing and remains remains occupied. Unit 2 contains Subunit 1A is located near Alberhill, occupied, and is essential to the physical and biological features that are north of Lake Elsinore and just west of conservation of this species because this essential to the conservation of A. Interstate Highway 15 in Riverside subunit (along with subunit 1A) pumila, including sandy loam or clay County, California. This subunit is near represents the northernmost soils located on an upper terrace of a the northern base of Alberhill Mountain, occurrences of this species, which is water source, which provide nutrients, east of Lake Street, and south of geographically situated to potentially moisture, and periodic flooding Temescal Creek (also called Alberhill assist this species expand its range presumed necessary for the plant’s Creek). Subunit 1A consists of northward. Like all other extant persistence (PCE 1), and annual approximately 23 ac (10 ha) of County occurrences, this subunit is also grassland habitat type, which allows owned land, and 18 ac (7 ha) of essential to the conservation of this adequate sunlight and airflow for A. privately owned land, for a total of species because of its contribution to the pumila (PCE 2). The physical and approximately 41 ac (17 ha). This genetic diversity of the species biological features essential to the subunit (along with subunit 1B) (McGlaughlin and Friar 2007, p. 329). conservation of the species in this represents the northernmost occurrence However, due to impacts from subunit require continued special of this species, which is geographically unauthorized grading and disking, and management considerations or situated to assist this species expand its a permitted road realignment project, A. protection to address threats from range northward. Like all other extant pumila within this subunit may be in nonnative plant species in situations occurrences, this subunit is also imminent danger of extirpation. Subunit where nonnative species are essential to the conservation of this 1B contains physical and biological outcompeting A. pumila for resources, species because of its contribution to the features that are essential to the and human encroachment. The Center genetic diversity of the species conservation of Ambrosia pumila, for Natural Lands Management is (McGlaughlin and Friar 2007, p. 329). including sandy loam or clay soils providing needed management by This subunit was occupied at the time located on an upper terrace of a water maintaining fencing around the area to of listing and remains occupied. source, which provide nutrients, protect the area from encroachment, and Subunit 1A contains physical and moisture, and periodic flooding carrying out research to determine the biological features that are essential to presumed necessary for the plant’s best method for control of nonnative the conservation of A. pumila, including persistence (PCE 1), and ruderal habitat plant species on-site. Please see the sandy loam or clay soils located on an type, which allows adequate sunlight ‘‘Special Management Considerations or upper terrace of a water source, which and airflow for A. pumila (PCE 2). The Protection’’ section of this proposed rule provide nutrients, moisture, and physical and biological features for a discussion of the threats to A. periodic flooding presumed necessary essential to the conservation of the pumila habitat and potential for the plant’s persistence (PCE 1); and species in this subunit may require management considerations. ruderal habitat type, which allows special management considerations or adequate sunlight and airflow for A. protection to address threats from Unit 3: Santa Gertrudis Creek pumila (PCE 2). The physical and nonnative plant species in situations Watershed (55) biological features essential to the where nonnative species are Unit 3 is located about 1 mile (1.6 km) conservation of the species in this outcompeting A. pumila for resources, southwest of Unit 2, along the San Diego subunit may require special and from activities (grading, Aqueduct, south of the intersection of management considerations or construction, human encroachment) Chandler and Suzi Roads and north of protection to address threats from that occur in the area. Please see the Santa Gertrudis Creek in Riverside nonnative plant species in situations ‘‘Special Management Considerations or County. Unit 3 consists of where nonnative species are Protection’’ section of this proposed rule approximately 32 ac (13 ha) of privately outcompeting A. pumila for resources, for a discussion of the threats to A. owned land. This unit was occupied at and from human encroachment that pumila habitat and potential the time of listing and remains occurs in the area. The County-owned management considerations. occupied, and, like all other extant

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occurrences, is essential to the nonnative plant species in situations 40 ac (16 ha). This subunit was conservation of this species because of where nonnative species are occupied at the time of listing and its contribution to the genetic diversity outcompeting A. pumila for resources, remains occupied, and, like all other of the species (McGlaughlin and Friar human encroachment, road extant occurrences, is essential to the 2007, p. 329). Unit 3 contains physical maintenance activities, and future conservation of this species because of and biological features that are essential widening of State Route 76. Please see its contribution to the genetic diversity to the conservation of A. pumila, the ‘‘Special Management of the species (McGlaughlin and Friar including sandy loam or clay soils Considerations or Protection’’ section of 2007, p. 329). Subunit 4C contains located on an upper terrace of a water this proposed rule for a discussion of physical and biological features that are source, which provide nutrients, the threats to A. pumila habitat and essential to the conservation of moisture, and periodic flooding potential management considerations. Ambrosia pumila, including sandy loam presumed necessary for the plant’s or clay soils located on an upper terrace Subunit 4B: Olive Hill Road persistence (PCE 1), and ruderal habitat of a water source, which provide type, which allows adequate sunlight Subunit 4B is located on the west side nutrients, moisture, and periodic and airflow for A. pumila (PCE 2). The of State Route 76, south of Olive Hill flooding presumed necessary for the physical and biological features Road in unincorporated San Diego plant’s persistence (PCE 1), and essential to the conservation of the County. Subunit 4B consists of nonnative grassland habitat type, which species in this unit may require special approximately 0.3 ac (0.1 ha) of State or allows adequate sunlight and airflow for management considerations or local government owned land and A. pumila (PCE 2). The physical and protection to address threats from approximately 35 ac (14 ha) of privately biological features essential to the nonnative plant species in situations owned land, for a total of approximately conservation of the species in this where nonnative species are 35 ac (14 ha) (values do not sum due to subunit may require special outcompeting A. pumila for resources, rounding). The occurrence in this management considerations or human encroachment, and utility subunit was considered extirpated at the protection to address threats from maintenance activities. Please see the time of listing, but has since been found nonnative plant species in situations ‘‘Special Management Considerations or to be extant. Like all other extant where nonnative species are Protection’’ section of this proposed rule occurrences, it is essential to the outcompeting A. pumila for resources, for a discussion of the threats to A. conservation of this species because of human encroachment, road and utility pumila habitat and potential its contribution to the genetic diversity maintenance activities, future widening management considerations. of the species (McGlaughlin and Friar of State Route 76, and potential 2007, p. 329). Subunit 4B contains development. Please see the ‘‘Special Unit 4: San Luis Rey River Watershed physical and biological features that are Management Considerations or Unit 4 is located in northwestern San essential to the conservation of Protection’’ section of this proposed rule Diego County and consists of three Ambrosia pumila, including sandy loam for a discussion of the threats to A. subunits of approximately 2 ac (1 ha) of or clay soils located on an upper terrace pumila habitat and potential State or local government owned land of a water source, which provide management considerations. and approximately 103 ac (41 ha) of nutrients, moisture, and periodic privately owned land, for a total of flooding presumed necessary for the Unit 5: San Dieguito River Watershed— approximately 105 ac (42 ha). plant’s persistence (PCE 1), and Lake Hodges grassland habitat type which allow Unit 5 is located on the west side of Subunit 4A: Calle de la Vuelta adequate sunlight and airflow for A. Interstate 15, just north of Lake Hodges Subunit 4A is located near junction of pumila (PCE 2). The physical and and south of Via Rancho Parkway in State Route 76 and Calle de la Vuelta in biological features essential to the San Diego County. Unit 5 consists of unincorporated San Diego County. conservation of the species in this approximately 16 ac (6 ha) of local Subunit 4A consists of approximately subunit may require special government owned land and 30 ac (12 ha) of privately owned land. management considerations or approximately 5 ac (2 ha) of privately This subunit was occupied at the time protection to address threats from owned land, for a total of approximately of listing and remains occupied, and, nonnative plant species in situations 21 ac (9 ha) (values do not sum due to like all other extant occurrences, is where nonnative species are rounding). This unit was occupied at essential to the conservation of this outcompeting A. pumila for resources, the time of listing, remains occupied, species because of its contribution to the human encroachment, road and, like all other extant occurrences, is genetic diversity of the species maintenance activities, and future essential to the conservation of this (McGlaughlin and Friar 2007, p. 329). widening of State Route 76. Please see species because of its contribution to the Subunit 4A contains physical and the ‘‘Special Management genetic diversity of the species biological features that are essential to Considerations or Protection’’ section of (McGlaughlin and Friar 2007, p. 329). the conservation of Ambrosia pumila, this proposed rule for a discussion of Unit 5 contains physical and biological including sandy loam or clay soils the threats to A. pumila habitat and features that are essential to the located on an upper terrace of a water potential management considerations. conservation of Ambrosia pumila, source, which provide nutrients, including sandy loam or clay soils moisture, and periodic flooding Subunit 4C: Jeffries Ranch located on an upper terrace of a water presumed necessary for the plant’s Subunit 4C is located approximately source, which provide nutrients, persistence (PCE 1), and ruderal habitat 0.7 mile (1.1 km) southwest of Bonsall moisture, and periodic flooding type, which allows adequate sunlight Bridge, adjacent to the south side of presumed necessary for the plant’s and airflow for A. pumila (PCE 2). The State Route 76 in the City of Oceanside, persistence (PCE 1), and nonnative physical and biological features San Diego County. Subunit 4C consists grassland habitat type, which allows essential to the conservation of the of approximately 2 ac (1 ha) of State or adequate sunlight and airflow for A. species in this subunit may require local government owned land and pumila (PCE 2). The physical and special management considerations or approximately 38 ac (15 ha) of privately biological features essential to the protection to address threats from owned land, for a total of approximately conservation of the species in this unit

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may require special management Diego National Wildlife Refuge), occupied at the time of listing and considerations or protection to address approximately 13 ac (5 ha) of State or remains occupied, and is essential to the threats from nonnative plant species in local government owned land, and conservation of this species because of situations where nonnative species are approximately 57 ac (23 ha) of privately its contribution to the genetic diversity outcompeting A. pumila for resources, owned land, for a total of approximately of the species (McGlaughlin and Friar human encroachment, utility 215 ac (87 ha) (values do not sum due 2007, p. 329). Subunit 7B contains maintenance activities, and potential to rounding). physical and biological features that are development. Please see the ‘‘Special essential to the conservation of A. Subunit 7A: Jamul Road Management Considerations or pumila, including sandy loam or clay Protection’’ section of this proposed rule Subunit 7A is located southeast of the soils located on an upper terrace of a for a discussion of the threats to A. City of El Cajon at and near junction of water source, which provide nutrients, pumila habitat and potential Jamul Road and Steele Canyon Road, on moisture, and periodic flooding management considerations. the north and south sides of Jamul Road. presumed necessary for the plant’s Subunit 7A consists of approximately 2 persistence (PCE 1), and nonnative Unit 6: San Diego River Watershed— ac (1 ha) of State or local government grassland habitat type, which allows Mission Trails Regional Park owned land, and approximately 36 ac adequate sunlight and airflow for A. Unit 6 is located in Mission Trails (15 ha) of privately owned land, for a pumila (PCE 2). The physical and Regional Park in the City of San Diego. total of approximately 39 ac (16 ha) biological features essential to the This unit includes three areas: (1) South (values do not sum due to rounding). conservation of the species in this of Old Mission Dam and Father Junipero This subunit was occupied at the time subunit may require special Serra Trail and west of Simeon Drive; of listing and remains occupied, and, management considerations or (2) north of Old Mission Dam and the like all other extant occurrences, is protection on privately owned lands, San Diego River, and northwest of essential to the conservation of this and continued management and Simeon Drive; and (3) immediately east species because of its contribution to the protection on federally owned lands to of Kumeyaay Campground, north of genetic diversity of the species address threats from nonnative plant Mission Gorge Road, east of Bushy Hill (McGlaughlin and Friar 2007, p. 329). species in situations where nonnative Drive, and south of the San Diego River. Subunit 7A contains physical and species are outcompeting A. pumila for Unit 6 consists of approximately 172 ac biological features that are essential to resources, and human encroachment. (69 ha) of land owned and managed by the conservation of A. pumila, including Please see the ‘‘Special Management the City of San Diego, and sandy loam or clay soils located on an Considerations or Protection’’ section of approximately 26 ac (11 ha) of privately upper terrace of a water source, which this proposed rule for a discussion of owned land, for a total of 198 ac (80 ha). provide nutrients, moisture, and the threats to A. pumila habitat and This unit was occupied at the time of periodic flooding presumed necessary potential management considerations. listing and remains occupied, and like for the plant’s persistence (PCE 1), and all other extant occurrences, is essential nonnative grassland habitat type, which Subunit 7C: Steele Canyon Bridge to the conservation of this species allows adequate sunlight and airflow for Subunit 7C is located mainly on the because of its contribution to the genetic A. pumila (PCE 2). The physical and east side of State Route 94 on a slope diversity of the species (McGlaughlin biological features essential to the between a concrete-lined ditch and a and Friar 2007, p. 329). Unit 6 contains conservation of the species in this fence adjacent and parallel to State physical and biological features that are subunit may require special Route 94, approximately 0.7 mile (1.1 essential to the conservation of A. management considerations or km) southeast of Subunit 7B, in pumila, including sandy loam or clay protection to address threats from unincorporated San Diego County. A soils located on an upper terrace of a nonnative plant species in situations small portion of the subunit is located water source, which provide nutrients, where nonnative species are on the opposite side of State Route 94 moisture, and periodic flooding outcompeting A. pumila for resources, just south of Steele Canyon Bridge in a presumed necessary for the plant’s alterations of site hydrology, and off- split-rail exclosure. Subunit 7C consists persistence (PCE 1), and nonnative highway-vehicle use. Please see the of approximately 28 ac (11 ha) of grassland habitat type, which allows ‘‘Special Management Considerations or federally owned land managed by the adequate sunlight and airflow for A. Protection’’ section of this proposed rule Fish and Wildlife Service, pumila (PCE 2). The physical and for a discussion of the threats to A. approximately 10 ac (4 ha) of State biological features essential to the pumila habitat and potential (California Department of conservation of the species in this unit management considerations. Transportation) and local (County of may require special management San Diego) government owned land, and Subunit 7B: San Diego National Wildlife considerations or protection to address approximately 6 ac (2 ha) of privately Refuge threats from nonnative plant species in owned land, for a total of approximately situations where nonnative species are Subunit 7B is located primarily on the 44 ac (18 ha) (values do not sum due to outcompeting A. pumila for resources, San Diego National Wildlife Refuge, rounding). This subunit was occupied at and human encroachment. Please see south of Sweetwater River between the time of listing and remains the ‘‘Special Management Rancho San Diego Golf Course and the occupied. Like all other extant Considerations or Protection’’ section of hills to the south, and on the north and occurrences, it is essential to the this proposed rule for a discussion of south sides of a dirt trail adjoining the conservation of this species because of the threats to A. pumila habitat and end of Par Four Drive in unincorporated its contribution to the genetic diversity potential management considerations. San Diego County. Subunit 7B consists of the species (McGlaughlin and Friar of approximately 118 ac (48 ha) of 2007, p. 329). Subunit 7C contains Unit 7: Sweetwater River Watershed Federal land owned and managed by the physical and biological features that are Unit 7 is located in southwestern San Fish and Wildlife Service and essential to the conservation of Diego County and consists of three approximately 15 ac (6 ha) of privately Ambrosia pumila, including sandy loam subunits containing approximately 146 owned land, for a total of approximately or clay soils located on an upper terrace ac (60 ha) of federally owned land (San 133 ac (54 ha). This subunit was of a water source, which provide

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nutrients, moisture, and periodic proposed for listing or result in Management must insure staff is flooding presumed necessary for the destruction or adverse modification of properly trained, and both agencies plant’s persistence (PCE 1), and proposed critical habitat. Conference must submit monitoring reports to the nonnative grassland habitat type, which reports provide conservation Service to determine if the procedures allows adequate sunlight and airflow for recommendations to assist the agency in are being implemented properly and A. pumila (PCE 2). The physical and eliminating conflicts that may be caused effects on endangered species and their biological features essential to the by the proposed action. We may issue habitats are being properly evaluated. conservation of the species in this a formal conference report if requested As a result we do not believe the subunit may require special by a Federal agency. Formal conference alternative consultation processes being management considerations or reports on proposed critical habitat implemented as a result of the National protection on State, local government, contain an opinion that is prepared Fire Plan will differ significantly from and privately owned lands, and according to 50 CFR 402.14, as if critical those consultations being conducted by continued management and protection habitat were designated. We may adopt the Service. on federally owned lands to address the formal conference report as the If we issue a biological opinion threats from nonnative plant species in biological opinion when the critical concluding that a project is likely to situations where nonnative species are habitat is designated, if no substantial jeopardize the continued existence of a outcompeting A. pumila for resources, new information or changes in the listed species or destroy and/or and human encroachment. Please see action alter the content of the opinion adversely modify critical habitat, we the ‘‘Special Management (see 50 CFR 402.10(d)). The also provide reasonable and prudent Considerations or Protection’’ section of conservation recommendations in a alternatives to the project, if any are this proposed rule for a discussion of conference report or opinion are identifiable. We define ‘‘reasonable and the threats to A. pumila habitat and advisory. prudent alternatives’’ at 50 CFR 402.02 potential management considerations. If a species is listed or critical habitat as alternative actions identified during is designated, section 7(a)(2) of the Act consultation that: Effects of Critical Habitat Designation requires Federal agencies to ensure that • Can be implemented in a manner Section 7 Consultation activities they authorize, fund, or carry consistent with the intended purpose of out are not likely to jeopardize the the action, Section 7(a)(2) of the Act requires continued existence of such a species or • Can be implemented consistent with Federal agencies, including the Service, to destroy or adversely modify its the scope of the Federal agency’s legal to ensure that actions they fund, critical habitat. If a Federal action may authority and jurisdiction, authorize, or carry out are not likely to affect a listed species or its critical • Are economically and destroy or adversely modify critical habitat, the responsible Federal agency technologically feasible, and habitat. Decisions by the 5th and 9th (action agency) must enter into • Would, in the Director’s opinion, Circuit Courts of Appeal have consultation with us. As a result of this avoid jeopardizing the continued invalidated our definition of consultation, we document compliance existence of the listed species or ‘‘destruction or adverse modification’’ with the requirements of section 7(a)(2) destroying or adversely modifying (50 CFR 402.02) (see Gifford Pinchot through our issuance of: critical habitat. Task Force v. U.S. Fish and Wildlife 1. A concurrence letter for Federal Reasonable and prudent alternatives Service, 378 F. 3d 1059 (9th Cir 2004) actions that may affect, but are not can vary from slight project and Sierra Club v. U.S. Fish and likely to adversely affect, listed species modifications to extensive redesign or Wildlife Service et al., 245 F.3d 434, or critical habitat; or relocation of the project. Costs 442F (5th Cir 2001)), and we do not rely 2. A biological opinion for Federal associated with implementing a on this regulatory definition when actions that may affect, and are likely to reasonable and prudent alternative are analyzing whether an action is likely to adversely affect, listed species or critical similarly variable. destroy or adversely modify critical habitat. Regulations at 50 CFR 402.16 require habitat. Under the statutory provisions An exception to the concurrence Federal agencies to reinitiate of the Act, we determine destruction or process referred to in (1) above occurs consultation on previously reviewed adverse modification on the basis of in consultations involving National Fire actions in instances where we have whether, with implementation of the Plan projects. In 2004, the U.S. Forest listed a new species or subsequently proposed Federal action, the affected Service and the U.S. Bureau of Land designated critical habitat that may be critical habitat would remain functional Management (BLM) reached agreements affected and the Federal agency has (or retain the current ability for the PCEs with the Service to streamline a portion retained discretionary involvement or to be functionally established) to serve of the section 7 consultation process control over the action (or the agency’s its intended conservation role for the (BLM–ACA 2004, pp. 1–8; FS–ACA discretionary involvement or control is species (Service 2004a, p.3). Section 2004, pp. 1–8). The agreements allow authorized by law). Consequently, 7(a)(2) of the Act requires Federal the U.S. Forest Service and the Bureau Federal agencies may sometimes need to agencies, including the Service, to of Land Management the opportunity to request reinitiation of consultation with evaluate their actions with respect to make ‘‘not likely to adversely affect’’ us on actions for which formal any species that is endangered or determinations for projects consultation has been completed, if threatened and with respect to its implementing the National Fire Plan. those actions with discretionary critical habitat, if any is proposed or Such projects include prescribed fire, involvement or control may affect designated. Regulations implementing mechanical fuels treatments (thinning subsequently listed species or this interagency cooperation provision and removal of fuels to prescribed designated critical habitat. of the Act are codified at 50 CFR part objectives), emergency stabilization, Federal activities that may affect 402. burned area rehabilitation, road Ambrosia pumila or its designated Section 7(a)(4) of the Act requires maintenance and operation activities, critical habitat require section 7 Federal agencies to confer with us on ecosystem restoration, and culvert consultation under the Act. Activities any action that is likely to jeopardize replacement actions. The U.S. Forest on State, Tribal, local, or private lands the continued existence of a species Service and the Bureau of Land requiring a Federal permit (such as a

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permit from the U.S. Army Corps of biological and physical features that management; fish and wildlife habitat Engineers under section 404 of the provide the appropriate habitat for A. enhancement or modification; wetland Clean Water Act (33 U.S.C. 1251 et seq.) pumila by altering or eliminating protection, enhancement, and or a permit from us under section 10 of flooding events that this species may restoration where necessary to support the Act) or involving some other Federal rely on for dispersal, seed germination, fish and wildlife; and enforcement of action (such as funding from the Federal and control of competitors; reducing or applicable natural resource laws. Highway Administration, Federal increasing the availability of The National Defense Authorization Aviation Administration, or the Federal groundwater that may result in a shift of Act for Fiscal Year 2004 (Pub. L. No. Emergency Management Agency) are habitat type to a community unsuitable 1088–136) amended the Endangered subject to the section 7 consultation for A. pumila (shrub- or tree-dominated Species Act to limit areas eligible for process. Federal actions not affecting habitat, which would inhibit exposure designation as critical habitat. listed species or critical habitat, and to needed sunlight and airflow); or Specifically, section 4(a)(3)(B)(i) of the actions on State, Tribal, local, or private causing increased erosion that could Act (16 U.S.C. 1533(a)(3)(B)(i)) now lands that are not federally funded, remove soils appropriate for A. pumila provides: ‘‘The Secretary shall not authorized, or permitted, do not require growth. designate as critical habitat any lands or section 7 consultations. (2) Activities that remove soils other geographical areas owned or Application of the Adverse Modification appropriate for A. pumila growth such controlled by the Department of Standard as plowing or grading, or activities that Defense, or designated for its use, that change the characteristics of soils so are subject to an integrated natural The key factor related to the adverse that A. pumila growth is impeded, such resources management plan prepared modification determination is whether, as soil compaction due to hiking and under section 101 of the Sikes Act (16 with implementation of the proposed vehicle use also adversely affect critical U.S.C. 670a), if the Secretary determines Federal action, the affected critical habitat. in writing that such plan provides a habitat would continue to serve its We consider all of the units and benefit to the species for which critical intended conservation role for the subunits proposed as critical habitat to habitat is proposed for designation.’’ species, or would retain its current contain features essential to the There are no Department of Defense ability for the PCEs to be functionally conservation of Ambrosia pumila. All lands with a completed INRMP within established. Activities that may destroy units are within the geographic range of the proposed critical habitat or adversely modify critical habitat are the species, were occupied at the time designation. Therefore, there are no those that alter the physical and of listing, and are currently occupied by lands that meet the criteria for being biological features (PCEs) to an extent A. pumila. To ensure that their actions exempted from the designation of that appreciably reduces the do not jeopardize the continued critical habitat pursuant to section conservation value of critical habitat for existence of A. pumila, Federal agencies 4(a)(3) of the Act. Ambrosia pumila. Generally, the already consult with us on activities in Exclusions conservation role of the A. pumila areas currently occupied by A. pumila, proposed critical habitat units is to or in unoccupied areas if the species Application of Section 4(b)(2) of the Act support the various life-history needs may be affected by their actions. and provide for the conservation of the Section 4(b)(2) of the Act states that species. Exemptions the Secretary must designate or revise Section 4(b)(8) of the Act requires us critical habitat on the basis of the best to briefly evaluate and describe in any Application of Section 4(a)(3) of the Act available scientific data after taking into proposed or final regulation that The Sikes Act Improvement Act of consideration the economic impact, designates critical habitat those 1997 (Sikes Act) (16 U.S.C. 670a) national security impact, and any other activities involving a Federal action that required each military installation that relevant impact of specifying any may destroy or adversely modify such includes land and water suitable for the particular area as critical habitat. The habitat, or that may be affected by such conservation and management of Secretary may exclude an area from designation. Activities that may destroy natural resources to complete an critical habitat if he determines that the or adversely modify critical habitat may integrated natural resources benefits of such exclusion outweigh the also jeopardize the continued existence management plan (INRMP) by benefits of specifying such area as part of the species. November 17, 2001. An INRMP of the critical habitat, unless he Activities that, when carried out, integrates implementation of the determines, based on the best scientific funded, or authorized by a Federal military mission for the installation data available, that the failure to agency, may adversely affect critical with stewardship of the natural designate such area as critical habitat habitat and therefore should result in resources found on the base. Each will result in the extinction of the consultation for Ambrosia pumila INRMP includes: species. In making that determination, include actions that would adversely • An assessment of the ecological the legislative history is clear that the affect the species’ exposure to adequate needs on the installation, including the Secretary has broad discretion regarding moisture, nutrients, sunlight, airflow, need to provide for the conservation of which factor(s) to use and how much and periodic flooding. For example: listed species; weight to give to any factor. (1) Actions that would alter the • A statement of goals and priorities; Under section 4(b)(2) of the Act, in configuration of the water sources • A detailed description of considering whether to exclude a associated with Ambrosia pumila management actions to be implemented particular area from the designation, we habitat or the upper terraces where A. to provide for these ecological needs; must identify the benefits of including pumila habitat is found. Such activities and the area in the designation, identify the could include, but are not limited to, • A monitoring and adaptive benefits of excluding the area from the water impoundment, stream management plan. designation, and determine whether the channelization, water diversion, water Among other things, an INRMP must, benefits of exclusion outweigh the withdrawal, and development activities. to the extent appropriate and applicable, benefits of inclusion. If, based on this These activities could alter the provide for fish and wildlife analysis, we determine that the benefits

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of exclusion outweigh the benefits of of each plan and the lands proposed as Specific conservation objectives inclusion, we can exclude the area only critical habitat that are covered by each stated in the Western Riverside County if such exclusion would not result in the plan. MSHCP for Ambrosia pumila include extinction of the species. conserving at least 21,800 ac (8,822 ha) Western Riverside County Multiple of occupied or suitable habitat for the Exclusions Based on Habitat Species Habitat Conservation Plan species. This goal will be attained Conservation Plans (HCPs) (Western Riverside County MSHCP) through acquisition or other dedications Under section 4(b)(2) of the Act, we The Western Riverside County of land assembled from within the consider any other relevant impacts, in MSHCP is a large-scale, multi- Criteria Area (i.e., the Additional addition to economic impacts and jurisdictional HCP encompassing about Reserve Lands) or Narrow Endemic Plan impacts to national security. We 1.26 million ac (510,000 ha) in western Species Survey Area and through consider a number of factors including Riverside County. The Western coordinated management of existing whether the landowners have developed Riverside County MSHCP plan area Public/Quasi-Public lands. We mapped any HCPs or other management plans encompasses Units 1, 2, and 3 of a ‘‘Conceptual Reserve Design’’ that for the area, or whether there are proposed critical habitat for Ambrosia illustrates existing Public/Quasi-Public conservation partnerships that would be pumila. The Western Riverside County lands and predicts the geographic encouraged by designation of, or MSHCP addresses 146 listed and distribution of the Additional Reserve exclusion from, critical habitat. In unlisted ‘‘covered species,’’ including Lands based on our interpretation of the addition, we look at any Tribal issues, A. pumila. Participants in the Western textual descriptions of habitat and consider the government-to- Riverside County MSHCP include 14 conservation necessary to meet MSHCP government relationship of the United cities; the County of Riverside, conservation goals. Our Conceptual States with Tribal entities. We also including the Riverside County Flood Reserve Design was intended to predict consider any social impacts that might Control and Water Conservation Agency one possible future configuration of occur because of the designation. (County Flood Control), Riverside 153,000 ac (61,916 ha) of Additional In the following sections, we address County Transportation Commission, Reserve Lands in conjunction with the a number of general issues that are Riverside County Parks and Open Space existing Public/Quasi-Public lands, relevant to the exclusions we are District, and Riverside County Waste including approximately 21,800 ac considering. Additionally, we are Department; California Department of (8,822 ha) of ‘‘suitable’’ A. pumila preparing a draft economic analysis of Parks and Recreation; and the California habitat, that will be conserved to meet the impacts of the proposed critical Department of Transportation. The the goals and objectives of the plan habitat designation and related factors, Western Riverside County MSHCP was (Service 2004b, p. 73). which will be available for public designed to establish a multi-species Preservation and management of review and comment when it is conservation program that minimizes approximately 21,800 ac (8,822 ha) of complete. Based on public comment on and mitigates the expected loss of suitable Ambrosia pumila habitat under that document and the proposed habitat and the incidental take of the Western Riverside County MSHCP designation itself, as well as the covered species. On June 22, 2004, the will contribute to conservation and information in the final economic Service issued a single incidental take ultimate recovery of this species. analysis, the Secretary may exclude permit (TE-088609-0) under section Ambrosia pumila is threatened from critical habitat areas different from 10(a)(1)(B) of the Act to 22 permittees primarily by habitat loss due to those identified for possible exclusion under the MSHCP for a period of 75 urbanization, flood control, and in this proposed rule under the years. nonnative species competition (Service provisions of section 4(b)(2) of the Act, The Western Riverside County 2004b, pp. 334–342). The Western up to and including all areas proposed MSHCP will establish approximately Riverside County MSHCP aims to for designation. This is also addressed 153,000 ac (61,917 ha) of new remove or reduce threats to this species in our implementing regulations at 50 conservation lands (Additional Reserve and its PCEs as the plan is implemented CFR 424.19. Lands) to complement the approximate by placing large blocks of occupied and Ambrosia pumila is a covered species 347,000 ac (140,426 ha) of pre-existing unoccupied habitat into preservation under the Western Riverside County natural and open space areas (Public/ throughout the Conservation Area. Multiple Species Habitat Conservation Quasi-Public lands). These Public/ Areas identified for conservation Plan (Western Riverside County Quasi-Public lands include those under include the occurrences at the Barry MSHCP), the City of San Diego Subarea Federal ownership, primarily managed Jones (Skunk Hollow) Wetland Plan under the Multiple Species by the U.S. Forest Service and Bureau Mitigation Bank (Unit 2), and the Conservation Program (MSCP), and the of Land Management, and also occurrence near Temescal Creek at County of San Diego Subarea Plan under permittee-owned open-space areas (such Nichols Road (Subunit 1B). the MSCP. We are considering exclusion as State parks, County Flood Control, Additionally, the Western Riverside of lands covered by each of these plans. and county park lands). Collectively, the County MSHCP anticipated Portions of the proposed critical habitat Additional Reserve Lands and Public/ conservation of a third occurrence subunits may warrant exclusion from Quasi-Public lands form the overall (Subunit 1A), near Temescal Creek east the proposed designation of critical Western Riverside County MSHCP of Lake Street, in accordance with its habitat under section 4(b)(2) of the Act Conservation Area. The precise Narrow Endemics Policy (Dudek 2003, based on the partnerships, management, configuration of the 153,000 ac (61,916 pp. P-327–P-328). and protection afforded under these ha) of Additional Reserve Lands is not Additionally, the Western Riverside approved and legally operative HCPs. In mapped or identified in the MSHCP, but County MSHCP requires surveys for A. this proposed rule, we are seeking input rather is based on textual descriptions of pumila as part of the project review from the stakeholders in these HCPs, a Conceptual Reserve Design within the process for public and private project peer reviewers, and the public as to bounds of a 310,000 ac (125,453 ha) proposals where suitable habitat is whether or not we should exclude these ‘‘Criteria Area’’ that is interpreted as present within a defined narrow areas from the final critical habitat implementation of the MSHCP endemic species survey area (see designation. Below is a brief description proceeds. Narrow Endemic Species Survey Area

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Map, Figure 6–1 of the Western specific criteria and objectives for this Within Unit 1, the County-owned Riverside County MSHCP, Volume I in species. Projects in the areas proposed portion of Subunit 1A is conserved and Dudek 2003). For locations with as critical habitat conducted or is currently managed for the County of positive survey results, 90 percent of approved by Western Riverside County Riverside by the Western Riverside those portions of the property that MSHCP permittees are subject to the County Regional Conservation provide long-term conservation value conservation requirements of the Authority; transfer of ownership to the for the species will be avoided until it MSHCP. For projects that may impact A. Western Riverside County Regional is demonstrated that the conservation pumila, various policies (including the Conservation Authority is planned for objectives for the species are met (see Narrow Endemic Plant Species Policy the near future. Subunit 1B is on Additional Survey Needs and (in Dudek 2003)) may provide privately owned lands and is not Procedures; Western Riverside County additional conservation requirements. currently conserved or managed for A. MSHCP, Volume 1, section 6.3.2 in The Western Riverside County pumila. It is also within the Western Dudek 2003). MSHCP incorporates many processes Riverside County MSHCP Criteria Area, The survey requirements, avoidance that allow for Service oversight and but not within the Narrow Endemic and minimization measures, and participation in program Plan Species Survey Area. Unit 2 is on management for Ambrosia pumila (and implementation. These processes privately owned lands and is conserved its PCEs) provided for in the Western include: (1) Consultation with the and managed by the Center for Natural Riverside County MSHCP are expected Service on a long-term management and Lands Management as part of the Barry to benefit this species on public and monitoring plan; (2) submission of Jones (Skunk Hollow) Wetland private lands covered by the plan. We annual monitoring reports; (3) annual Mitigation Bank. Unit 3 is on privately are considering the exclusion of status meetings with the Service; and (4) owned lands and is not currently approximately 263 ac (106 ha) of private submission of annual implementation conserved or managed for A. pumila. It lands and permittee-owned or reports to the Service (Service 2004b, is not within the Western Riverside controlled Public/Quasi-Public lands in pp. 9–10). Below we provide a brief County MSHCP Criteria Area or the Units 1 (Subunits 1A and 1B), 2, and 3 analysis of the lands in Units 1, 2, and Narrow Endemic Plan Species Survey within the Western Riverside County 3 that we are considering for exclusion Area. MSHCP Plan Area from the final critical and how each area is covered by the habitat designation under section 4(b)(2) Western Riverside County MSHCP or The approximate amount of land that of the Act. The Western Riverside other conservation measures. meets the definition of critical habitat County MSHCP has several measures in We are considering to exclude from for Ambrosia pumila within the place to ensure the plan is implemented critical habitat designation three Units Western Riverside County MSHCP and in a way that conserves Ambrosia that are within the boundaries of the conservation status of those lands is pumila in accordance with the species- Western Riverside County MSHCP. summarized in Table 2.

TABLE 2—LANDS UNDER THE WESTERN RIVERSIDE COUNTY MULTIPLE SPECIES HABITAT CONSERVATION PLAN (MSHCP) THAT MEET THE DEFINITION OF CRITICAL HABITAT FOR Ambrosia pumila.

Within Western Riverside Within MSHCP Outside of Conceptual County MSHCP Conservation Area Reserve Design but Within Unit/Subunit Criteria Area acres hectares acres hectares acres hectares

1A. Alberhill 41.4 16.8 23.4 9.5 34.9 14.1

1B. Nichols Road 70.4 28.5 0.0 0.0 1.1 0.5

Unit 2: Skunk Hollow Vernal Pool watershed 118.1 47.8 7.0 2.8 0.0 0.0

Unit 3: Santa Gertrudis Creek watershed 32.5 13.2 0.0 0.0 0.0 0.0

Totals: 262.5 106.2 30.4 12.3 36.0 14.6 * Values in this table may not sum due to rounding.

In summary, we are considering and maintenance; sheep grazing; human conservation of A. pumila. We will exclusion of approximately 263 ac (106 encroachment on foot, horses, and analyze the benefits of inclusion and ha) of Ambrosia pumila habitat on vehicles; weed abatement and fire exclusion of this area from critical private lands and permittee-owned or suppression practices (including habitat under section 4(b)(2) of the Act. controlled lands in Subunits 1A and 1B mowing in mid summer to early fall We encourage any public comment in and Units 2 and 3 that meet the when mowing would remove flowering relation to our consideration of the areas definition of critical habitat for A. portions of the aerial stems, discing, and in Units 1, 2, and 3 for inclusion or pumila within the Western Riverside plowing); stochastic events such as fire exclusion (see Public Comments section County MSHCP under section 4(b)(2) of or drought; and competition from above). the Act. The 2002 final listing rule for nonnative plant species (67 FR 44372). A. pumila identified the following The implementation of the Western primary threats to A. pumila: habitat Riverside County MSHCP helps to destruction and fragmentation caused address these threats through a regional by urban development; highway and planning effort, and outlines species- utility corridor construction, expansion, specific objectives and criteria for the

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San Diego Multiple Species (63.3 percent) to the preserve. comprehensive and address a broad Conservation Program (MSCP)—City Approximately 81,750 ac (33,083 ha) (48 range of management needs at the and County of San Diego’s Subarea percent) was existing public land when preserve and species levels that are Plans the MSCP was established and at least intended to reduce the threats to The MSCP Plan is a framework HCP 27,000 ac (10,927 ha) (16 percent) will covered species and thereby contribute that has been in place for more than a have been acquired. At completion, the to the recovery of the species. These decade. The plan area encompasses private sector will have contributed at plans are to include the following: (1) approximately 582,243 ac (235,626 ha) least 63,170 ac (25,564 ha) (37 percent) Fire management; (2) public access (County of San Diego 1997, p. 1–1; to the preserve as part of the control; (3) fencing and gates; (4) ranger MSCP 1998, pp. 2–1, and 4–2 to 4–4) development process, either through patrol; (5) trail maintenance; (6) visitor, and provides for conservation of 85 avoidance of impacts or as interpretive, and volunteer services; (7) federally listed and sensitive species compensatory mitigation for impacts to hydrological management; (8) signage biological resources. Federal and State and lighting; (9) trash and litter removal; (‘‘covered species’’) through the governments, local jurisdictions and (10) access road maintenance; (11) establishment and management of special districts, and managers of enforcement of property and approximately 171,920 ac (69,574 ha) of privately owned lands currently and in homeowner requirements; (12) removal preserve lands, including lands within the future will manage and monitor of invasive species; (13) nonnative the Multi-Habitat Planning Area their lands in the preserve for species predator control; (14) species (MHPA; City of San Diego) and the Pre- and habitat protection (MSCP 1998, pp. monitoring; (15) habitat restoration; (16) Approved Mitigation Areas (PAMA; 2–1, and 4–2 to 4–4). management for diverse age classes of County of San Diego). The MSCP was Private lands within the Multi-Habitat covered species; (17) use of herbicides developed in support of applications for Planning Area and Pre-Approved and rodenticides; (18) biological incidental take permits for several Mitigation Areas are subject to special surveys; (19) research; and (20) species federally listed species by 12 restrictions on development, and lands management conditions (MSCP 1998, p. participating jurisdictions and many that are dedicated to the preserve must 49–97). other stakeholders in southwestern San be permanently protected and managed To protect Ambrosia pumila habitat, Diego County. Under the umbrella of the to conserve the covered species. Public the City and County of San Diego MSCP, each of the 12 participating lands owned by the Cities, County, State subarea plans require that development jurisdictions is required to prepare a of California, and the Federal be configured in a manner that subarea plan that implements the goals Government that are identified for minimizes impacts to sensitive of the MSCP within that particular conservation under the MSCP must also biological resources and species covered jurisdiction. Ambrosia pumila was be protected and permanently managed by those plans (Service 1997, p. 10; evaluated in the County of San Diego to conserve the covered species. Service 1998b, p. 7). The City of San and the City of San Diego Subarea Plans. Numerous processes are incorporated Diego Subarea Plan requires We are considering exclusion of lands into the MSCP that allow Service preservation of 90 percent of the within the City of San Diego and County oversight of the MSCP implementation. occurrence of A. pumila at Mission of San Diego Subarea Plans. For example, the MSCP imposes annual Trails Regional Park, additional impact Specifically, we are considering the reporting requirements, provides for avoidance and other measures as exclusion of 278 ac (113 ha) in Unit 5, Service review and approval of required under the MSCP Plan for Unit 6, Subunit 7A, and non-federally proposed subarea plan amendments and narrow endemic species, and area- owned portions of 7B and 7C (see preserve boundary adjustments, and specific management directives Tables 3 and 4). provides for Service review and designed to maintain long-term survival Those areas of the MSCP preserve that comment on projects during the in the planning area (Service 1997, pp. are already conserved, as well as those California Environmental Quality Act 104–105). Under the City of San Diego’s areas that are designated for inclusion in review process. We also chair the MSCP subarea plan, impacts to narrow the preserve under the plan, are referred Habitat Monitoring Subcommittee endemic plants, including A. pumila, to as the ‘‘preserve area’’ in this (MSCP 1998, pp. 5–11 to 5–23). Each inside the Multi-Habitat Planning Area proposed critical habitat designation. MSCP subarea plan must account will be avoided, and outside the Multi- Upon completion of preserve assembly annually for the progress it is making in Habitat Planning Area will be protected by the end of the permit term, assembling conservation areas and show as appropriate by: (1) Avoidance of approximately 171,920 ac (69,574 ha) of that preserve assembly is in rough step impacts; (2) management; (3) the 582,243-ac (235,626-ha) MSCP plan with the development allowed in each enhancement; and/or (4) transplantation area will be preserved (MSCP 1998, pp. jurisdiction. We must receive annual to areas identified for preservation (City 2–1, and 4–2 to 4–4). The City of San reports that include, both by project and of San Diego 1997, p. 105–106; Service Diego’s preserve is delineated by cumulatively, the habitat acreage lost 1997, p. 15). mapped preserve boundaries referred to and conserved within the subareas. This The County of San Diego Subarea as ‘‘hardline’’ boundaries (the Multi- accounting process ensures that habitat Plan provides three levels of protection Habitat Planning Area). Most of the conservation proceeds in rough for Ambrosia pumila. First, the Plan County of San Diego preserve areas do proportion to habitat loss and in requires conservation of 87 to 100 not have ‘‘hardline’’ boundaries, but the compliance with the MSCP subarea percent of A. pumila occurrences in the County’s subarea plan identifies areas plans and the plans’ associated County Subarea. Second, area-specific where mitigation activities should be implementing agreements. management directives must be focused to assemble its preserve areas The subarea plans under the MSCP designed for A. pumila to maintain (the Pre-Approved Mitigation Areas). contain requirements to monitor and long-term survival in the planning area When the MSCP preserve is adaptively manage Ambrosia pumila (Service 1997, pp. 104–105). Third, the completed, the public sector (Federal, habitats and provide for the County Subarea Plan dictates that on State, and local government, and general conservation of this species’ PCEs. The category 3 lands (lands for which the public) will have contributed framework and area-specific County Plan has not delineated preserve approximately 108,750 ac (44,010 ha) management plans are required to be and development boundaries), any

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newly discovered occurrences of A. Multi-Habitat Planning Area and Pre- for Ambrosia pumila within the City of pumila will be protected by impact Approved Mitigation Areas or located San Diego Subarea and conservation avoidance measures required under the outside of those areas in the City and status of those lands is summarized in County’s Biological Mitigation County of San Diego Subareas. The Table 3. The City of San Diego has a Ordinance. Narrow endemic plants, narrow endemic policy for both the City management plan in place for the A. including A. pumila, are conserved and County of San Diego subarea plans pumila occurrence in Mission Trails under the Biological Mitigation require in situ conservation of A. pumila Regional Park (Dudek 2000), ongoing Ordinance using a process that: (1) or mitigation to ameliorate any habitat monitoring of that occurrence (City of Requires avoidance to the maximum loss. Therefore, although some losses San Diego 2000, 2001, 2003, 2006, and extent feasible; (2) allows for a may occur to this species on lands that 2008b), and ongoing maintenance of the maximum 20 percent encroachment into are not currently preserved or otherwise Mission Trails Regional Park a population if total avoidance is not designated for conservation under the feasible; and (3) requires in-kind MSCP, the preservation, conservation, occurrence, including building and mitigation at 1-to-1 to 3-to-1 ratios for and management of A. pumila provided maintaining fencing and rerouting or impacts if avoidance and minimization under the City and County MSCP closing trails to protect plants (Dudek of impacts would preclude reasonable subarea plans promotes the long-term 2000, pp. 29–30). No management plan, use of the property (County of San Diego conservation of this species and its management, or monitoring is yet in 1997, p. 11; Service 1998b, p. 12). essential habitat within all areas place for the other non-Federal lands These measures help protect covered by the subarea plans under the covered by the City or County of San Ambrosia pumila and its essential MSCP. Diego Subarea Plans that meet the habitat whether located on lands The approximate acreage of land that definition of critical habitat for targeted for preserve status within the meets the definition of critical habitat Ambrosia pumila.

TABLE 3—LANDS UNDER THE CITY OF SAN DIEGO SUBAREA PLAN THAT MEET THE DEFINITION OF CRITICAL HABITAT FOR AMBROSIA PUMILA (INCLUDING THE MULTIPLE-HABITAT PLANNING AREA (MHPA)).

Within City of San Diego Within City of San Diego Conserved within City of Unit/Subunit Subarea MHPA San Diego MHPA* acres hectares acres hectares acres hectares

Unit 5: San Dieguito River watershed—Lake Hodges 9.0 3.6 3.1 1.3 0.0 0.0

Unit 6: San Diego River watershed—Mission Trails 197.5 79.9 151.5 61.3 46.0 18.6 Regional Park

Total AreaConsidered for Exclusion 206.5 83.6 154.6 62.6 46.0 18.6 *Conserved outside of MHPA: 23.7 ac (9.6 ha). **Values in this table may not sum due to rounding.

The approximate amount of land that for Ambrosia pumila within the County status of those lands is summarized in meets the definition of critical habitat of San Diego Subarea and conservation Table 4.

TABLE 4—LANDS UNDER THE COUNTY OF SAN DIEGO SUBAREA PLAN THAT MEET THE DEFINITION OF CRITICAL HABITAT FOR Ambrosia pumila (INCLUDING PRE-APPROVED MITIGATION AREAS (PAMA); AREAS ON FEDERAL LANDS NOTED IN PARENTHESES).

Within County of San Within County of San Conserved within County Diego Subarea Diego PAMA of San Diego PAMA* Unit/Subunit (on Federal lands) (on Federal lands) (on Federal lands) acres hectares acres hectares acres hectares

7A. Jamul Road 38.9 15.7 20.4 8.2 13.6 5.5

7B. San Diego National Wildlife Refuge 132.5 53.6 116.2 47.0 116.1 47.0 (116.1) (47.0) (116.1) (47.0) (116.1) (47.0)

7C. Steele Canyon Bridge 43.7 17.7 30.6 12.4 28.4 11.5 (27.6) (11.2) (27.6) (11.2) (27.6) (11.2)

Totals: 215.2 87.1 167.1 67.6 158.1 64.0 (143.7) (58.1) (143.7) (58.1) (143.7) (58.1)

Total Area Considered for Exclusion 71.5 29.0 23.4 9.5 14.4 5.9 (non-Federal lands only) *Conserved outside of PAMA: 0.1 ac (0.0 ha) **Values in this table may not sum due to rounding.

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Approximately 51.9 ac (21.0 ha), or 25 Economic Analysis Public Hearings percent of non-Federal lands under the Section 4(b)(2) of the Act allows the Section 4(b)(5) of the Act provides for City of San Diego’s Subarea Plan that one or more public hearings on this meet the definition of critical habitat, Secretary to exclude areas from critical habitat for economic reasons if the proposal, if we receive any requests for are outside the Multi-Habitat Planning hearings. We must receive your request Area; approximately 48.1 ac (23.2 ha), or Secretary determines that the benefits of such exclusion exceed the benefits of for a public hearing within 45 days after 67.3 percent of non-Federal lands under the date of this Federal Register the County of San Diego’s Subarea Plan designating the area as critical habitat. However, this exclusion cannot occur if publication. Send your request to Jim that meet the definition of critical Bartel, Field Supervisor of the Carlsbad habitat, are outside the Pre-Approved it will result in the extinction of the species concerned. Fish and Wildlife Office (see FOR Mitigation Areas. Consistent with the FURTHER INFORMATION CONTACT section). narrow endemic species requirements of In compliance with section 4(b)(2) of We will schedule public hearings on the MSCP, the lands outside the Pre- the Act, we are preparing an analysis of this proposal, if any are requested, and Approved Mitigation Areas and Multi- the economic impacts of proposing announce the dates, times, and places of Habitat Planning Area will be surveyed critical habitat designation and related those hearings, as well as how to obtain for Ambrosia pumila prior to any factors for Ambrosia pumila, to evaluate reasonable accommodations, in the development occurring on these lands, the potential economic impact of the Federal Register and local newspapers and any occurrences of A. pumila designation. This economic analysis at least 15 days before the first hearing. discovered must be protected in also will be used to determine accordance with those requirements. compliance with the Regulatory Required Determinations Additionally, as stated above, Flexibility Act, the Small Business Regulatory Planning and Review— preservation and management will be Regulatory Enforcement Fairness Act, Executive Order 12866 provided for occurrences within the E.O. 12630 (Takings), and E.O. 13211 The Office of Management and Budget preserve areas of these subarea plans. (Energy Supply, Distribution, or Use). (OMB) has determined that this rule is In summary, we are considering We will announce the availability of not significant under Executive Order exclusion of 278 ac (113 ha) of non- the draft economic analysis as soon as (E.O.) 12866. OMB bases its Federal lands that meet the definition of it is completed, at which time we will determination upon the following four critical habitat for Ambrosia pumila seek public review and comment. At criteria: within the City and County of San Diego that time, copies of the draft economic (1) Whether the rule will have an Subarea Plans under section 4(b)(2) of analysis will be available for annual effect of $100 million or more on the Act. There are an additional 143.7 downloading from the Internet at http:// the economy or adversely affect an ac (58.1 ha) of Federal land at the San www.regulations.gov, or by contacting economic sector, productivity, jobs, the Diego National Wildlife Refuge included the Carlsbad Fish and Wildlife Office environment, or other units of the in Subunits 7B and 7C that are within directly (see FOR FURTHER INFORMATION government. the County of San Diego’s subarea plan CONTACT section). Based on public (2) Whether the rule will create that meet the definition of critical comment on that document, and our inconsistencies with other Federal habitat, but because these lands are evaluation of the relative benefits of agencies’ actions. inclusions and exclusion, areas may be federally owned we are not considering (3) Whether the rule will materially excluded from critical habitat by the them for exclusion. The 2002 final affect entitlements, grants, user fees, listing rule for A. pumila identified the Secretary under the provisions of loan programs, or the rights and following primary threats for this section 4(b)(2) of the Act in the final obligations of their recipients. rule, as provided for in the Act and in species: habitat destruction and (4) Whether the rule raises novel legal our implementing regulations at 50 CFR fragmentation from urban development or policy issues. and development of recreational 242.19. Regulatory Flexibility Act (5 U.S.C. 601 activities; highway and utility corridor Peer Review construction, highway expansion, and et seq.) maintenance of these corridors; In accordance with our joint policy Under the Regulatory Flexibility Act trampling and soil compaction caused published in the Federal Register on (RFA; 5 U.S.C. 601 et seq., as amended by hikers, horses, and vehicles; fire July 1, 1994 (59 FR 34270), we are by the Small Business Regulatory suppression practices; competition from soliciting the expert opinions of at least Enforcement Fairness Act (SBREFA) of nonnative plant species; and stochastic three appropriate independent 1996), whenever an agency must events such as fire or drought (67 FR specialists regarding this proposed rule. publish a notice of rulemaking for any 44372; July 2, 2002). The The purpose of peer review is to ensure proposed or final rule, it must prepare implementation of the City and County that our critical habitat designation is and make available for public comment of San Diego MSCP subarea plans helps based on scientifically sound data, a regulatory flexibility analysis that to address these threats through a assumptions, and analyses. We have describes the effect of the rule on small regional planning effort rather than invited these peer reviewers to comment entities (i.e., small businesses, small through a project-by-project approach, during this public comment period on organizations, and small government and outlines species-specific objectives our specific assumptions and jurisdictions). However, no regulatory and criteria for the conservation of A. conclusions in this proposed flexibility analysis is required if the pumila. We will analyze the benefits of designation of critical habitat. We will head of an agency certifies the rule will inclusion and exclusion of this area consider all comments and information not have a significant economic impact from critical habitat under section we receive during this comment period on a substantial number of small 4(b)(2) of the Act. We encourage any on this proposed rule during our entities. The SBREFA amended the RFA public comment in relation to our preparation of a final determination. to require Federal agencies to provide a consideration of the areas discussed Accordingly, our final decision may statement of factual basis for certifying above for inclusion or exclusion. differ from this proposal. that the rule will not have a significant

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economic impact on a substantial funding,’’ and the State, local, or Tribal assessment concludes that this number of small entities. governments ‘‘lack authority’’ to adjust designation of critical habitat for A. At this time, we lack the available accordingly. At the time of enactment, pumila does not pose significant takings economic information necessary for the these entitlement programs were: implications for lands within or affected areas being proposed in this revision to Medicaid; AFDC work programs; Child by the designation. provide an adequate factual basis for the Nutrition; Food Stamps; Social Services Federalism—Executive Order 13132 required RFA finding. Therefore, we Block Grants; Vocational Rehabilitation defer the RFA finding until completion State Grants; Foster Care, Adoption In accordance with E.O. 13132 of the draft economic analysis prepared Assistance, and Independent Living; (Federalism), this proposed rule does under section 4(b)(2) of the Act and E.O. Family Support Welfare Services; and not have significant Federalism effects. 12866. The draft economic analysis will Child Support Enforcement. ‘‘Federal A Federalism assessment is not provide the required factual basis for the private sector mandate’’ includes a required. In keeping with Department of RFA finding. Upon completion of the regulation that ‘‘would impose an the Interior and Department of draft economic analysis, we will enforceable duty upon the private Commerce policy, we requested announce its availability in the Federal sector, except (i) a condition of Federal information from, and coordinated Register and reopen the public assistance or (ii) a duty arising from development of, this proposed critical comment period for the proposed participation in a voluntary Federal habitat designation with appropriate designation. We will include with this program.’’ State resource agencies in California. announcement, as appropriate, an initial The designation of critical habitat The designation may have some benefit regulatory flexibility analysis or a does not impose a legally binding duty to these governments because the areas certification that the rule will not have on non-Federal Government entities or that contain the features essential to the a significant economic impact on a private parties. Under the Act, the only conservation of the species are more substantial number of small entities regulatory effect is that Federal agencies clearly defined, and the PCEs of the accompanied by the factual basis for must ensure that their actions do not habitat necessary to the conservation of that determination. We concluded that destroy or adversely modify critical the species are specifically identified. deferring the RFA finding until habitat under section 7. While non- This information does not alter where completion of the draft economic Federal entities that receive Federal and what federally sponsored activities analysis is necessary to meet the funding, assistance, permits, or may occur. However, it may assist these purposes and requirements of the RFA. otherwise require approval or local governments in long-range Deferring the RFA finding in this authorization from a Federal agency for planning (rather than having them wait manner will ensure that we make a an action, may be indirectly impacted for case-by-case section 7 consultations sufficiently informed determination by the designation of critical habitat, the to occur). based on adequate economic legally binding duty to avoid Where State and local governments information and provide the necessary destruction or adverse modification of require approval or authorization from a opportunity for public comment. critical habitat rests squarely on the Federal agency for actions that may Federal agency. Furthermore, to the affect critical habitat, consultation Unfunded Mandates Reform Act (2 extent that non-Federal entities are under section 7(a)(2) would be required. U.S.C. 1501 et seq.) indirectly impacted because they While non-Federal entities that receive In accordance with the Unfunded receive Federal assistance or participate Federal funding, assistance, or permits, Mandates Reform Act, we make the in a voluntary Federal aid program, the or that otherwise require approval or following findings: Unfunded Mandates Reform Act would authorization from a Federal agency for 1. This rule will not produce a not apply, nor would critical habitat an action, may be indirectly impacted Federal mandate. In general, a Federal shift the costs of the large entitlement by the designation of critical habitat, the mandate is a provision in legislation, programs listed above onto State legally binding duty to avoid statute, or regulation that would impose governments. destruction or adverse modification of an enforceable duty upon State, local, or 2. We do not expect this rule to critical habitat rests squarely on the Tribal governments, or the private significantly or uniquely affect small Federal agency. sector, and includes both ‘‘Federal governments. Small governments will intergovernmental mandates’’ and be affected only to the extent that any Civil Justice Reform—Executive Order ‘‘Federal private sector mandates.’’ programs having Federal funds, permits, 12988 These terms are defined in 2 U.S.C. or other authorized activities must In accordance with Executive Order 658(5)–(7). ‘‘Federal intergovernmental ensure that their actions will not 12988 (Civil Justice Reform), it has been mandate’’ includes a regulation that adversely affect the critical habitat. determined that the rule does not ‘‘would impose an enforceable duty Therefore, a Small Government Agency unduly burden the judicial system and upon State, local, or [T]ribal Plan is not required. However, as we meets the requirements of sections 3(a) governments’’ with two exceptions. It conduct our economic analysis for the and 3(b)(2) of the Order. We have excludes ‘‘a condition of Federal rule, we will further evaluate this issue proposed designation of critical habitat assistance.’’ It also excludes ‘‘a duty and revise this assessment if in accordance with the provisions of the arising from participation in a voluntary appropriate. Endangered Species Act. This proposed Federal program,’’ unless the regulation rule uses standard property descriptions Takings—Executive Order 12630 ‘‘relates to a then-existing Federal and identifies the PCEs within the program under which $500,000,000 or In accordance with E.O. 12630 designated areas to assist the public in more is provided annually to State, (Government Actions and Interference understanding the habitat needs of local, and [T]ribal governments under with Constitutionally Protected Private Ambrosia pumila. entitlement authority,’’ if the provision Property Rights), we have analyzed the would ‘‘increase the stringency of potential takings implications of Paperwork Reduction Act of 1995 (44 conditions of assistance’’ or ‘‘place caps designating critical habitat for Ambrosia U.S.C. 3501 et seq.) upon, or otherwise decrease, the Federal pumila in a takings implications This rule does not contain any new Government’s responsibility to provide assessment. The takings implications collections of information that require

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approval by OMB under the Paperwork written, which sections or sentences are designate critical habitat for Ambrosia Reduction Act of 1995. This rule will too long, the sections where you feel pumila is not expected to significantly not impose recordkeeping or reporting lists or tables would be useful, etc. affect energy supplies, distribution, or requirements on State or local use. Therefore, this action is not a Government-to-Government governments, individuals, businesses, or significant energy action, and no Relationship with Tribes organizations. An agency may not Statement of Energy Effects is required. conduct or sponsor, and a person is not In accordance with the President’s However, we will further evaluate this required to respond to, a collection of memorandum of April 29, 1994, issue as we conduct our economic information unless it displays a Government-to-Government Relations analysis, and review and revise this currently valid OMB control number. with Native American Tribal assessment as warranted. Governments (59 FR 22951), E.O. 13175, National Environmental Policy Act and the Department of the Interior’s References Cited (NEPA) (42 U.S.C. 4321 et. seq.) manual at 512 DM 2, we readily A complete list of all references cited It is our position that, outside the acknowledge our responsibility to in this rulemaking is available on http:// jurisdiction of the Circuit Court of the communicate meaningfully with wwww.regulations.gov and upon request United States for the Tenth Circuit, we recognized Federal Tribes on a from the Field Supervisor, Carlsbad Fish do not need to prepare environmental government-to-government basis. In and Wildlife Office (see FOR FURTHER analyses as defined by NEPA in accordance with Secretarial Order 3206 INFORMATION CONTACT section). connection with designating critical of June 5, 1997 (American Indian Tribal habitat under the Endangered Species Rights, Federal-Tribal Trust Author(s) Act. We published a notice outlining Responsibilities, and the Endangered The primary author of this notice is our reasons for this determination in the Species Act), we readily acknowledge the staff from the Carlsbad Fish and Federal Register on October 25, 1983 our responsibilities to work directly Wildlife Office (see FOR FURTHER (48 FR 49244). This assertion was with Tribes in developing programs for INFORMATION CONTACT section). upheld by the Circuit Court of the healthy ecosystems, to acknowledge that United States for the Ninth Circuit Tribal lands are not subject to the same List of Subjects in 50 CFR Part 17 (Douglas County v. Babbitt, 48 F.3d controls as Federal public lands, to Endangered and threatened species, 1495 (9th Cir. 1995), cert. denied 516 remain sensitive to Indian culture, and Exports, Imports, Reporting and U.S. 1042 (1996)). to make information available to Tribes. recordkeeping requirements, We determined there are no Tribal Transportation. Clarity of the Rule lands occupied by Ambrosia pumila at We are required by Executive Orders the time of listing that contain the Proposed Regulation Promulgation 12866 and 12988 and by the features essential for the conservation of Presidential Memorandum of June 1, Ambrosia pumila, nor are there any Accordingly, we propose to amend 1998, to write all rules in plain other Tribal lands that are essential for part 17, subchapter B of chapter I, title language. This means that each rule we the conservation of this species. 50 of the Code of Federal Regulations, publish must: Therefore, designation of critical habitat as set forth below: (1) Be logically organized; for A. pumila is not being proposed on (2) Use the active voice to address Tribal lands. We will continue to PART 17—[AMENDED] readers directly; coordinate with Tribal governments as 1. The authority citation for part 17 (3) Use clear language rather than appropriate during the designation continues to read as follows: jargon; process. (4) Be divided into short sections and Authority: 16 U.S.C. 1361–1407; 16 U.S.C. sentences; and Energy Supply, Distribution, or Use— 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (5) Use lists and tables wherever Executive Order 13211 625, 100 Stat. 3500; unless otherwise noted. possible. Executive Order 13211, ‘‘Actions 2. In § 17.12(h), revise the entry for If you feel that we have not met these Concerning Regulations That ‘‘Ambrosia pumila’’ under requirements, send us comments by one Significantly Affect Energy Supply, ‘‘FLOWERING PLANTS’’ to read as of the methods listed in the ADDRESSES Distribution, or Use’’ requires agencies follows: section. To better help us revise the to prepare Statements of Energy Effects rule, your comments should be as when undertaking certain actions. Based § 17.12 Endangered and threatened specific as possible. For example, you on an analysis conducted for the plants. should tell us the numbers of the preparation of this proposal, we * * * * * sections or paragraphs that are unclearly determined that this proposed rule to (h) * * *

Species Historic range Family Status When listed Critical habitat Special rules Scientific name Common name

FLOWERING PLANTS

* * * * * * *

Ambrosia San Diego am- U.S.A. (CA), Asteraceae E 727 17.96(a) NA pumila brosia Mexico

* * * * * * *

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3. In § 17.96(a), add an entry for and Ramona (sandy loam) soil series effective date of this rule, such as ‘‘Ambrosia pumila (San Diego that occur on or near (but not directly buildings, aqueducts, airports, and ambrosia),’’ in alphabetical order under adjacent to) a river, creek, or other roads, and the land on which such family Asteraceae, to read as follows: drainage, or within the watershed of a structures are located, and not vernal pool, and that occur on an upper containing one or more of the PCEs. § 17.96 Critical habitat—plants. terrace (flat or gently sloping areas of 0 (a) Flowering plants. (4) Critical habitat map units. Data to 42 percent slopes are typical for layers defining map units were created * * * * * terraces on which A. pumila using a base of U.S. Geological Survey occurrences are found). 7.5’ quadrangle maps. Critical habitat Family Asteraceae: Ambrosia pumila (ii) Grassland or ruderal habitat types units were then mapped using Universal (San Diego ambrosia) (disturbed communities containing a Transverse Mercator (UTM) zone 11, (1) Critical habitat units are depicted mixture of native and nonnative grasses North American Datum (NAD) 1983 for Riverside and San Diego Counties, and forbs) or openings within coastal coordinates. These coordinates establish California, on the maps below. sage scrub, on the soil types and the vertices and endpoints of the (2) Within these areas, the primary topography described in the PCE set boundaries of the units and subunits. constituent elements (PCEs) of critical forth in paragraph (2)(i) of this entry, habitat for Ambrosia pumila are: that provide adequate sunlight and (5) Note: Index Map of critical habitat (i) Sandy loam or clay soils airflow for population growth and for Ambrosia pumila (San Diego (regardless of disturbance status), reproduction. ambrosia), Riverside and San Diego including (but not limited to) the (3) Critical habitat does not include Counties, California, follows: Placentia (sandy loam), Diablo (clay), manmade structures existing on the BILLING CODE 4310–55–S

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(6) Unit 1, Riverside County, (ii) Note: Map of Unit 1, Critical ambrosia), Riverside County, California, California. Habitat for Ambrosia pumila (San Diego follows: (i) [Reserved for textual description of units.]

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(7) Units 2 and 3, Riverside County, (ii) Note: Map of Units 2 and 3, (San Diego ambrosia), Riverside County, California. Critical Habitat for Ambrosia pumila California, follows: (i) [Reserved for textual description of units.]

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(8) Unit 4, Subunits 4A, 4B, and 4C, (ii) Note: Map of Unit 4, Critical ambrosia), San Diego County, California, San Diego County, California. Habitat for Ambrosia pumila (San Diego follows: (i) [Reserved for textual description of unit.]

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(9) Unit 5, San Diego County, (ii) Note: Map of Unit 5, Critical ambrosia), San Diego County, California, California. Habitat for Ambrosia pumila (San Diego follows: (i) [Reserved for textual description of units.]

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(10) Unit 6, San Diego County, (ii) Note: Map of Unit 6, Critical ambrosia), San Diego County, California, California. Habitat for Ambrosia pumila (San Diego follows: (i) [Reserved for textual description of units.]

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(11) Unit 7, Subunits 7A, 7B, and 7C, (ii) Note: Map of Unit 7, Critical ambrosia), San Diego County, California, San Diego County, California. Habitat for Ambrosia pumila (San Diego follows: (i) [Reserved for textual description of units.]

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Dated: August 14, 2009 Will Shafroth, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. E9–20499 Filed 8–26–09; 8:45 am] BILLING CODE 4310–55–C

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