Tuesday, February 6, 2007

Part III

Department of the Interior Fish and Wildlife Service

50 CFR Part 17 Endangered and Threatened Wildlife and ; Designation of Critical Habitat for nevinii (Nevin’s barberry); Proposed Rule

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DEPARTMENT OF THE INTERIOR and Wildlife Office at the address or and their possible impacts on proposed telephone number listed under critical habitat; Fish and Wildlife Service ADDRESSES. Persons who use a (7) Information that demonstrates a telecommunications device for the deaf species-specific pollinator- 50 CFR Part 17 (TDD) may call the Federal Information relationship for Berberis nevinii; RIN 1018–AU84 Relay Service (FIRS) at 800–877–8339, 7 information on seed dispersal days a week, 24 hours a day. mechanisms and dispersal distance for Endangered and Threatened Wildlife SUPPLEMENTARY INFORMATION: Berberis nevinii; whether seed banks and Plants; Designation of Critical exist for this species and, if so, for how Public Comments Solicited Habitat for Berberis nevinii (Nevin’s long and under what conditions; and barberry) We intend that any final action whether such information should be resulting from this proposal will be as applied to or considered a primary AGENCY: Fish and Wildlife Service, accurate and as effective as possible. constituent element for the species; Interior. Therefore, comments or suggestions (8) Our proposed exclusion of ACTION: Proposed rule. from the public, other concerned Berberis nevinii habitat covered under governmental agencies, the scientific the approved Western Riverside County SUMMARY: We, the U.S. Fish and community, industry, or any other Multiple Species Habitat Conservation Wildlife Service (Service), propose to interested party concerning this Plan (MSHCP) and whether the benefits designate critical habitat for Berberis proposed rule are hereby solicited. of excluding these areas outweigh the nevinii (Nevin’s barberry) under the Comments particularly are sought benefits of their inclusion under section Endangered Species Act of 1973, as concerning: 4(b)(2) of the Act (see Relationship of amended (Act). The proposal includes (1) The reasons any habitat should or Critical Habitat to Approved Habitat approximately 417 acres (ac) (169 should not be determined to be critical Conservation Plans (HCPs)—Exclusion hectares (ha)) of land in Riverside habitat as provided by section 4 of the Under Section 4(b)(2) of the Act for County, California, that meet the Act (16 U.S.C. 1531 et seq.), including details on the Western Riverside County definition of critical habitat for B. whether the benefit of designation will MSHCP). If the Secretary determines the nevinii. Of this, we propose to exclude outweigh any threats to the species due benefits of including these lands 385 ac (156 ha) of non-Federal land to designation; outweigh the benefits of excluding from the final designation under section (2) Specific information on the them, they will not be excluded from 4(b)(2) of the Act, leaving a proposed amount and distribution of Berberis final critical habitat; final designation of 32 ac (13 ha) of nevinii habitat; what habitat or habitat (9) Additional information regarding Federal land. features are essential to the conservation management plans covering lands DATES: We will accept comments from of this species and why; and which managed by the Bureau of Land all interested parties until April 9, 2007. areas occupied at the time of listing Management (BLM) on Oak Mountain We must receive requests for public containing these features should be and by the United States Forest Service hearings, in writing, at the address included in the critical habitat (USFS) on Cleveland National Forest, shown in the ADDRESSES section by designation, and which areas not and whether these plans provide March 23, 2007. occupied at the time of listing but specific management for Berberis ADDRESSES: If you wish to comment on currently occupied should be included nevinii such that consideration of the proposed rule, you may submit your in the final designation, and why; exclusion of these lands under section comments and materials identified by (3) The geographical extent, number 4(b)(2) of the Act would be appropriate; RIN 1018–AU84, by any of the following of plants, and/or reproductive status of (10) Any foreseeable economic, methods: native Berberis nevinii occurrences, national security, or other potential (1) You may send comments by particularly those in the Loma Linda impacts resulting from the proposed electronic mail (e-mail) to Hills area (vicinity of San Timoteo designation and, in particular, any [email protected]. Include Canyon and Scott Canyon) in San impacts on small entities; and ‘‘RIN 1018–AU84’’ in the subject line. Bernardino County and those in western (11) Whether our approach to (2) You may fax your comments to Jim Riverside County (including in the designating critical habitat could be Bartel, Field Supervisor, Carlsbad Fish vicinity of Vail Lake, the Agua Tibia improved or modified in any way to and Wildlife Office at 760–431–9624. Mountain foothills (Cleveland National provide for greater public participation (3) You may mail or hand-deliver Forest), in the Soboba Badlands east of and understanding, or to assist us in your written comments and information the San Jacinto Wildlife Area, the accommodating public concerns and to Jim Bartel, Field Supervisor, Carlsbad Jurupa Hills area, and near Temecula); comments. Fish and Wildlife Office, 6010 Hidden (4) Specific information on three If you wish to comment, you may Valley Road, Carlsbad, CA 92011. historical Berberis nevinii records from submit your comments and materials (4) You may submit your comments at Los Angeles County, two from the concerning this proposal by any one of the Federal eRulemaking Portal, http:// Arroyo Seco near Pasadena (CNDDB several methods (see ADDRESSES www.regulations.gov. Follow the element occurrence 8 and 9) and one section). Please include ‘‘Attn: RIN instructions for submitting comments. from the Big Tejunga Wash near San 1018–AU84’’ in your e-mail subject line Comments and materials received, as Fernando (CNDDB element occurrence and your name and return address in well as supporting documentation used 10), such as whether the species still the body of your message. If you do not in the preparation of this proposed rule, exists in this area and where; receive a confirmation from the system will be available for public inspection, (5) Whether any areas not currently that we have received your Internet by appointment, during normal business known to be occupied by Berberis message, contact us directly by calling hours at the Carlsbad Fish and Wildlife nevinii, but essential to the conservation our Carlsbad Fish and Wildlife Office at Office at the above address (telephone of the species, should be included in the phone number 760–431–9440. Please 760–431–9440). designation; note that comments must be received by FOR FURTHER INFORMATION CONTACT: Jim (6) Land use designations and current the date specified in the DATES section Bartel, Field Supervisor, Carlsbad Fish or planned activities in the subject areas in order to be considered.

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Our practice is to make comments, the States, the section 10 incidental take Service to an ever-increasing series of including names and home addresses of permit process, and cooperative, court orders and court-approved respondents, available for public review nonregulatory efforts with private settlement agreements, compliance with during regular business hours. landowners. The Service believes that which now consumes nearly the entire Individual respondents may request that these measures may make the difference listing program budget. This leaves the we withhold their names and home between extinction and survival for Service with little ability to prioritize its addresses, etc., but if you wish us to many species. activities to direct scarce listing consider withholding this information, In considering exclusions of areas resources to the listing program actions you must state this prominently at the proposed for designation, we evaluate with the most biologically urgent beginning of your comments. In the benefits of designation in light of species conservation needs. addition, you must present rationale for Gifford Pinchot Task Force v. U.S. Fish The consequence of the critical withholding this information. This and Wildlife Service, 378 F.3d 1059 (9th habitat litigation activity is that limited rationale must demonstrate that Cir 2004) (hereinafter Gifford Pinchot). listing funds are used to defend active disclosure would constitute a clearly In that case, the Ninth Circuit court lawsuits, to respond to Notices of Intent unwarranted invasion of privacy. invalidated the Service’s regulation to sue relative to critical habitat, and to Unsupported assertions will not meet defining ‘‘destruction or adverse comply with the growing number of this burden. In the absence of modification of critical habitat.’’ In adverse court orders. As a result, listing exceptional, documentable response, on December 9, 2004, the petition responses, the Service’s own circumstances, this information will be Director issued guidance to be proposals to list critically imperiled released. We will always make considered in making section 7 adverse species, and final listing determinations submissions from organizations or modification determinations. This on existing proposals are all businesses, and from individuals proposed critical habitat designation significantly delayed. identifying themselves as does not use the invalidated regulation The accelerated schedules of court- representatives of or officials of in our consideration of the benefits of ordered designations have left the organizations or businesses, available including areas. The Service will Service with limited ability to provide for public inspection in their entirety. carefully manage future consultations for public participation or to ensure a that analyze impacts to designated defect-free rulemaking process before Role of Critical Habitat in Actual critical habitat, particularly those that making decisions on listing and critical Practice of Administering and appear to be resulting in an adverse habitat proposals, due to the risks Implementing the Act modification determination. Such associated with noncompliance with Attention to and protection of habitat consultations will be reviewed by the judicially imposed deadlines. This in is paramount to successful conservation Regional Office prior to finalizing to turn fosters a second round of litigation actions. The role that designation of ensure that an adequate analysis has in which those who fear adverse critical habitat plays in protecting been conducted that is informed by the impacts from critical habitat habitat of listed species, however, is Director’s guidance. designations challenge those often misunderstood. As discussed in On the other hand, to the extent that designations. The cycle of litigation more detail below in the discussion of designation of critical habitat provides appears endless, and is very expensive, exclusions under section 4(b)(2) of the protection, that protection can come at thus diverting resources from Act, there are significant limitations on significant social and economic cost. In conservation actions that may provide the regulatory effect of designation addition, the mere administrative relatively more benefit to imperiled under section 7(a)(2) of the Act. In brief, process of designating critical habitat is species. (1) Designation provides additional expensive, time-consuming, and The costs resulting from the protection to habitat only where there is controversial. The current statutory designation include legal costs, the cost a federal nexus; (2) the protection is framework of critical habitat, combined of preparation and publication of the relevant only when, in the absence of with past judicial interpretations of the designation, the analysis of the designation, destruction, or adverse statute, make critical habitat the subject economic effects and the cost of modification of the critical habitat of excessive litigation. As a result, requesting and responding to public would in fact take place (in other words, critical habitat designations are driven comment, and in some cases the costs other statutory or regulatory protections, by litigation and courts rather than of compliance with the National policies, or other factors relevant to biology, and made at a time and under Environmental Policy Act (NEPA) (42 agency decision-making would not a timeframe that limits our ability to U.S.C. 4321 et seq.). These costs, which prevent the destruction or adverse obtain and evaluate the scientific and are not required for many other modification); and (3) designation of other information required to make the conservation actions, directly reduce the critical habitat triggers the prohibition designation most meaningful. funds available for direct and tangible of destruction or adverse modification In light of these circumstances, the conservation actions. of that habitat, but it does not require Service believes that additional agency specific actions to restore or improve discretion would allow our focus to Background habitat. return to those actions that provide the It is our intent to discuss only those Currently, 483 species, or 37 percent greatest benefit to the species most in topics directly relevant to the of the 1,311 listed species in the United need of protection. designation of critical habitat in this States under the jurisdiction of the proposed rule. For more information on Procedural and Resource Difficulties in Service, have designated critical habitat. the biology and ecology of Berberis Designating Critical Habitat We address the habitat needs of all nevinii, refer to the final listing rule 1,311 listed species through We have been inundated with published in the Federal Register on conservation mechanisms such as lawsuits for our failure to designate October 13, 1998 (63 FR 54956). listing, section 7 consultations, the critical habitat, and we face a growing section 4 recovery planning process, the number of lawsuits challenging critical Species Description section 9 protective prohibitions of habitat determinations once they are Berberis nevinii is a 3 to 13 foot (ft) unauthorized take, section 6 funding to made. These lawsuits have subjected the (1 to 4 meter (m)) tall rhizomatous,

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evergreen in the barberry family , oak woodland, and/ of the most extensive occurrences of the () that is endemic to or riparian scrub or woodland (Boyd species consisting of approximately 100 . This species 1987, pp. 2, 7; Boyd 1989, pp. 6–8; 63 plants scattered over 1 to 2 miles (1.6 to naturally occurs in scattered locations, FR 54958; CNPS, 2001, p. 96; CNDDB 3.2 kilometers (km)) of gravel washes ranging from the foothills of the San 2006). While it is typically found southeast of the City of San Fernando Gabriel Mountains in northern Los growing on soils of sedimentary origin (Wolf 1940, unpaginated). However, the Angeles County, south and east to the (Boyd 1987, p. 3), B. nevinii is also species is presumed extirpated from this Loma Linda Hills in southern San found on clay soils originating from location (Boyd 1987, p. 3). Bernardino County, and south to near gabbro bedrock and in association with Berberis nevinii was introduced into the foothills of the Peninsular Ranges of metasedimentary substrates and springs horticulture around 1920 (Wolf 1940, southwestern Riverside County (63 FR or seeps (Soza 2003). unpaginated) and was subsequently 54958; California Natural Diversity planted at numerous sites throughout Species Distribution Database (CNDDB) 2006). Berberis the species’ range (Boyd 1987, p. 2; nevinii generally occurs between 900 Berberis nevinii appears never to have Boyd and Banks 1995, unpaginated; and 2,000 ft (300 and 650 m) in been common, even within its limited Reiser 2001, unpaginated). The elevation (63 FR 54958), with scattered range (Neihaus 1977, p. 2; Mistretta and availability of B. nevinii in the nursery occurrences found outside this elevation Brown 1989, p. 7). Its historic trade and the introduction of cultivated range (California Native Plant Society distribution probably consisted of fewer specimens into native habitats have (CNPS) 2001, p. 96; CNDDB 2006). This than 30 scattered occurrences in Los contributed to confusion regarding the species generally grows on sandy soils Angeles, San Bernardino, and Riverside species’’ native range. Table 1 in low-gradient washes, alluvial Counties (63 FR 54958), and possibly summarizes our current understanding terraces, and canyon bottoms, along San Diego County (Neihaus 1977, p. 1; of B. nevinii’s occurrence, origin, and gravelly wash margins, or on coarse Reiser 2001, unpaginated; CNDDB status, by county, for records in the soils on steep, generally north-facing 2006). This species was first discovered CNDDB (2006). Additional occurrence slopes in association with the following in 1882 in the near records not in the CNDDB, and therefore plant communities: alluvial scrub, Los Angeles (Gray 1895, p. 69; Wolf not included in Table 1, are discussed cismontane (e.g., chamise) , 1940, unpaginated). This was likely one below.

TABLE 1.—KNOWN OCCURRENCES OF Berberis Nevinii IN THE CALIFORNIA NATURAL DIVERSITY DATABASE (2006) AND STATUS BY COUNTY 1

2 Extant, cul- Extant, un- Extant, 3 Unknown 5 County tivated known Extirpated 4 Other native origin origin Status

Los Angeles...... 1 4 1 4 3 1 San Bernardino...... 2 0 0 2 0 0 Riverside ...... 16 1 1 0 0 1 San Diego...... 0 1 0 0 0 1

Total ...... 19 6 2 6 3 3 1 Other records that are not in the California Natural Diversity Database (CNDDB) are discussed below. 2 Extant = still existing. 3 Extirpated = no longer existing. 4 Possibly extirpated or unknown status. 5 Location questionable and/or may be the same as another CNDDB record.

As stated in the final listing rule (63 consisting of single large individual and The location of these individuals and FR 54956, October 13, 1998), the the other consisting of seven individuals the presence of other introduced plant majority of native Berberis nevinii (Boyd 1987, pp. 5, 7; CNDDB 1997); in species nearby has led to speculation occurrences were located in two addition, a single naturally-occurring that B. nevinii was planted here (Soza geographic areas: In the vicinity of Vail plant was known from Lopez Canyon in and Boyd 2000, p. 4). We are also aware Lake and Oak Mountain in western the foothills of the San Gabriel of several occurrences in western Riverside County (16 occurrences Mountains on the Angeles National Riverside County from the vicinity of collectively consisting of 200 to 250 Forest in Los Angeles County (63 FR Vail Lake/Oak Mountain, the Soboba individuals) and in San Francisquito 54958). Other B. nevinii occurrences Badlands, Jurupa Hills, and the Canyon on the were known or suspected to be of Temecula area that have been identified in Los Angeles County (130 to 250 cultivated origin, and were located since the species was federally listed. Of individuals) (63 FR 54957 and 54958). primarily on private lands. these, two occurrences in the Jurupa The majority of B. nevinii plants in the We are aware of several occurrences Hills and two occurrences in the Vail Lake/Oak Mountain area were of Berberis nevinii that have been Temecula area have presumably been located on private lands, with a few identified since the final listing rule (63 extirpated due to residential or plants on BLM lands north of Vail Lake FR 54956, October 13, 1998). One agricultural development. The Soboba and on the Cleveland National Forest occurrence is at the mouth of Cobal Badlands occurrence, east of the San southeast of Vail Lake (63 FR 54958). At Canyon at the south base of the San Jacinto Wildlife Area, is presumed the time of listing, two other native Gabriel Mountains in Los Angeles extant, as are those in the vicinity of occurrences were known from private County; it consists of three plants Vail Lake and Oak Mountain (Service lands in the Loma Linda Hills area in adjacent to a fire road in the Claremont southern San Bernardino County, one Hills Wilderness Park (CNDDB 2006). 2004, p. 331).

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In total, we are aware of 32 records of unaware of any evidence indicating that is apparently extirpated (Boyd 1987, p. Berberis nevinii in the vicinity of Vail this species naturally occurred in San 2). In the Loma Linda Hills area of Lake and Oak Mountain that were Francisquito Canyon prior to it being southern San Bernardino County, two documented by multiple observers planted there in 1929. However, Boyd historic occurrences of B. nevinii from between 1987 and 1990 (Service 2004, (Soza and Boyd 2000, p. 3) noted that side canyons off p. 331). These records were compiled in oaks in the canyon appear to pre-date appear to have been impacted by fire- association with the Western Riverside the flood, which indicates that not all related and/or landowner activities County Multiple Species Habitat vegetation was scoured from the site by within the last 10 years (Latch 1997; Conservation Plan (MSHCP) (MSHCP floodwaters and if B. nevinii naturally Sanders 2006). One occurrence, which records). According to location occurred in the canyon prior to this consisted of a single large clonal descriptions, some MSHCP records event, some individuals may have individual, has been extirpated (Sanders appear to be duplicates of CNDDB survived. The San Francisquito Canyon 2006). The other occurrence has been records, although they are not always occurrence has been estimated at 130 to reduced from seven individuals to mapped the same (Service GIS data 200 plants in the past (Soza and Boyd perhaps only one or two (Latch 1997; 2006). Many of the MSHCP records 2000, p. 2; CNDDB 2006), but recent Sanders 2006); we are unsure if the overlap spatially and others are surveys estimate the population at 91 remaining plant(s) are located in recorded in close proximity to each plants after a fire burned through the southern San Bernardino County or other, making it difficult to determine if entire occurrence in 2002 (Soza and extreme northern Riverside County. We each record is a distinct occurrence of Fraga 2003, p. 2). are seeking additional information to the species or separate observations of a No native occurrences of Berberis clarify and verify these occurrences (see single occurrence (Service 2004, pp. nevinii have been located in San Diego Public Comments Solicited section). County (Reiser 2001, unpaginated). A 330–331). Accompanying data, such as The total number of Berberis nevinii report of this species in the desert number of plants, origin (native versus may be fewer than 500 from all known foothills of Anza-Borrego near Ranchita cultivated), and habitat information, is sites; about half are naturally occurring (San Felipe Wash) in Eastern San Diego generally lacking, making it difficult to individuals and over half are on private County remains unconfirmed (Niehaus accurately quantify the number of lands (CNDDB 2006; 63 FR 54958). The 1977, p. 1; Reiser 2001, unpaginated; distinct occurrences or plants in the majority of occurrences consist of five or CNDDB 2006). Isolated plants or small Vail Lake area. We are seeking fewer plants, with many consisting of additional information to clarify and stands (groupings of individuals) of B. nevinii may occur in the little explored only one or two large (old) individuals verify these occurrences, as well as (CNDDB 2006). Potential habitat within those mentioned in the preceding foothills at the northern edge of the Area, potentially the species’ range has been fairly paragraph (see Public Comments extensively botanically explored and/or Solicited section). into San Diego County (Reiser 2001, unpaginated), as it occurs nearby in surveyed (Boyd 1987, p. 3), including At least six extant occurrences in Los southern Riverside County (Boyd and surveys of potential habitat on the San Angeles, Riverside, and San Diego Banks 1995, unpaginated; CNDDB Bernardino National Forest in 1988 and Counties are of cultivated origin or are 2006). At least two occurrences of B. 1989, which yielded no new thought to be outplanted individuals nevinii in San Diego County are likely occurrences (Mistretta 1989, originating from another part of the of cultivated origin: Torrey Pines State unpaginated). Additional survey efforts species’ range (CNDDB 2006; Table 1). Park (Reiser 2001, unpaginated) and for B. nevinii likely will not yield new The largest of these is in San near the base of Mount Palomar on the large occurrences of the species. Francisquito Canyon on the Angeles La Jolla Indian Reservation (Boyd 1987, However, the discovery of new National Forest. This location is in the p. 3; Reiser 2001, unpaginated; CNDDB occurrences within the last 15 to 20 Liebre Mountains, a northwestern 2006). years (e.g., from Lopez Canyon in Los extension of the , At least seven occurrences of Berberis Angeles County and from western which extends the species’ overall range nevinii have been extirpated (63 FR Riverside County) suggests that to the north and west in Los Angeles 54958), including six records in the individual plants and small stands County. At the time of the final listing 2006 CNDDB (Table 1) and potentially remain to be found (Boyd 1987, p. 3; rule (63 FR 54956, October 13, 1998), others from the eastern San Fernando Boyd and Banks 1995, unpaginated; we believed Berberis nevinii to be Valley that were not included in the Soza and Boyd 2000, p. 4). Potential naturally occurring in San Francisquito CNDDB because of inadequate data (63 habitat for B. nevinii may occur on the Canyon. We are now aware that this FR 54961). Berberis nevinii has been Angeles National Forest on the south species was planted in the bottom of the extirpated from several historic slope of the San Gabriel and Liebre canyon in 1929 following a flood. locations in Los Angeles and San Mountains (Soza and Boyd 2000, p. 4), Moreover, one of the individuals used Bernardino Counties, including the San potentially from Pacoima to Lopez in the planting originated as a seedling Fernando Valley and Pacoima Wash Canyon, within the vicinity of San in the San Fernando Valley in Los area (CNDDB 2006), the confluence of Antonio Wash, and within Cajon Angeles County (Payne 1945) where the San Francisquito Canyon and Santa Canyon (Soza 2003, based on expertise species is thought to no longer occur Clara River (Boyd 1987, p. 2), and north of Boyd, Rancho Santa Ana Botanic (Niehaus 1977, p. 1; Boyd 1987, p. 3; of the City of Claremont (CNDDB 2006). Garden); on the San Bernardino CNDDB 2006). Berberis nevinii appears We are unable to ascertain whether two National Forest in the Crafton Hills area to have naturalized (established as a of the three historic records from the and on the west side of the San Jacinto part of the flora of a locale other than Arroyo Seco near Pasadena and one Mountains (Soza 2003); on the their place of origin; i.e., nonnative) 1904 record from Big Tejunga Wash are Cleveland National Forest in the front within San Francisquito Canyon, extant and/or accurately mapped. A range of the Agua Tibia/Palomar spreading beyond the canyon floor historic record of B. nevinii from south Mountains, including the northern edge where it was planted (Payne 1945) to of Rim Forest in the San Bernardino of the Agua Tibia Wilderness (Boyd and the canyon slopes (Soza and Boyd 2000, Mountains in San Bernardino County is Banks 1995, unpaginated; Reiser 2001, p. 2; Soza and Fraga 2003, p. 1). We are suspected to be of cultivated origin and unpaginated; Soza 2003); and south and

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east of Vail Lake (e.g., Temecula Creek within B. nevinii, with one exception at The role that naturalized occurrences drainage, the hills between Temecula Vail Lake, suggesting that the species will have in conservation of the species Creek and Wilson Creek), and the has been subjected to a series of is not known at this time. The San canyons draining Big Oak Mountain population bottlenecks that may have Francisquito Canyon occurrence may at north of Vail Lake (Boyd et al. 1989, p. led to severe inbreeding depression and some point be determined to play a 16; Soza 2003). reproductive failure (Mistretta 1994, p. recovery role because it is one of only To summarize, native, extant 187). However, Mistretta (2006) three occurrences for the species that we occurrences of Berberis nevinii include cautioned against drawing conclusions know has more than 20 individuals a single individual in Lopez Canyon in from this study because the techniques (CNDDB 2006), it is one of only a few the San Gabriel Mountains on the used, which were state-of-the-art at the occurrences with any evidence of Angeles National Forest in Los Angeles time, require far more conjecture in reproduction by seed, and it may County (CNDDB 2006); a single determining relationships, especially at contain the only verifiable remnant of individual on private land in Scott the population level, than newly- the extirpated San Fernando Valley Canyon in the Loma Linda Hills south developed techniques. On the other population. of Redlands in San Bernardino County hand, cultivators of B. nevinii have long According to the California (Boyd 1987, pp. 5, 7); one or two observed an apparent lack of Department of Fish and Game (CDFG) individuals on private land in a side morphological differences between (2005, p. 272), ‘‘the lack of reproduction canyon off San Timoteo Canyon near individual plants, even young seedlings and recruitment at most sites, and the the San Bernardino/Riverside County (O’Brien 2001, p. 19), which may also very low number of individuals at most line (referred to herein as the San indicate low genetic variation within populations [of Berberis nevinii] in the Timoteo Canyon occurrence) (Boyd the species. absence of fire are indicative of fire 1987, pp. 5, 7; Latch 1997; Sanders We know of only a few native responsive species.’’ Fire is a normal 2006); an unknown number of occurrences where regeneration by seed occurrence in chaparral communities, individuals in the Soboba Badlands east may have occurred in the recent past. and chaparral species, including B. of the San Jacinto Wildlife Area (Service As noted by Nishida in Boyd (1987, p. nevinii, which is known to stump sprout 2004, p. 331); and other scattered 62), the largest stand of Berberis nevinii (i.e., generate new growth from burnt occurrences in Riverside County, located on the Vail Lake peninsula stumps) following fire (Soza and Fraga including the largest remaining and consists of approximately 111 2003, p. 2; Sanders 2006), are resilient most significant group of native individuals of various sizes, including a and/or adapted to such perturbations occurrences in the Vail Lake/Oak seedling, which suggests a range of ages (Keeley 1991, p. 84; Tyler 1996, p. 2182. Mountain area in southern Riverside and past reproduction. Another However, the specific response of B. County (Service 2004, p. 331; CNDDB occurrence on the peak located north of nevinii to changes to the natural fire 2006). This latter site has many Vail Lake (referred to as ‘‘Big’’ Oak regime (fire frequency, intensity, and/or scattered stands of B. nevinii, each with Mountain; Boyd et al. 1989, p. 1) timing), such as has occurred or may one or more individuals, collectively consists of two plants: a very old one occur in southern California’s chaparral/ consisting of about 200 to 250 plants and a substantially smaller one at some shrublands due to increased (Boyd et al. 1989, p. 14; 63 FR 54958). distance to the northeast (Wallace 2006) urbanization, are not fully understood The majority of the individuals in the (hereinafter, we also refer to this peak as (63 FR 54964, 54965). Vail Lake/Oak Mountain area are ‘‘Big Oak Mountain,’’ whereas ‘‘Oak The final listing rule (63 FR 54956, located on private land to the south of Mountain’’ refers to the general area to October 13, 1998) identified the lake, with the largest stand on the the north and west of Vail Lake). urbanization, off-road vehicle use, brush Vail Lake peninsula (formerly a ridge Additionally, fruit with seed was noted fires, recreation, and roadway projects separating Kolb Creek and Temecula at the B. nevinii occurrence on (e.g., widening) as factors contributing Creek prior to the flooding of Vail Lake). Cleveland National Forest to the to the imperilment and/or extirpation of Two plants on Big Oak Mountain north southeast of Vail Lake in 2006 (Wallace Berberis nevinii from within parts of its of Vail Lake are on BLM lands, and five 2006). The San Timoteo Canyon native range (63 FR 54961). The alluvial plants occur southeast of Vail Lake on occurrence also contained individuals scrub communities within the San the Cleveland National Forest, close to of several size (age) classes (Boyd 1987, Fernando and San Gabriel valleys have the Agua Tibia Wilderness Area (herein pp. 51–52); however, regeneration by been greatly modified, damaged, or referred to as the Cleveland National seed probably has not occurred at this destroyed, including several sites where Forest occurrence) (63 FR 54956; site in many decades, and this B. nevinii presumably had occurred. CNDDB 2006). occurrence has been at least partially Other threats to the long-term survival destroyed (Sanders 2006). of the species, as identified in the final Species Reproduction Regeneration by seed has been noted listing rule, include the introduction of There appears to be little to no at a few naturalized (i.e., nonnative) invasive, nonnative plants that compete regeneration by seed occurring at most stands of Berberis nevinii. The San with native species and contribute to Berberis nevinii sites, and low seed set Francisquito Canyon site appears to combustible fuel loads, and fire (including plants bearing fruit without have one of the most vigorous naturally management strategies that alter natural seed) and lack of viable seed has been regenerating occurrences of the species, fire processes (63 FR 54961). noted over the years by both botanists as indicated by a wide range of ages of and horticulturalists trying to obtain mature individuals, the presence of Previous Federal Actions seed for propagation, even from within numerous seedlings and immature Berberis nevinii was listed as larger occurrences (Wolf 1940; Boyd plants (Boyd 1987, p. 7; Mistretta and endangered by the State of California in 1987, pp. 3, 44, 56; Mistretta and Brown Brown 1989, p. 10; Soza and Boyd 2000, January 1987, and federally listed as 1989, pp. 4–5; Mistretta 1994, p. 186). p. 2), and fruits containing seed (Boyd endangered on October 13, 1998 (63 FR According to Mistretta (1994, p. 187) 1987, p. 7). Reproduction has also been 54956). In the final listing rule, we and O’Brien (2001, p. 19), unpublished observed at the Palomar site in San determined that the designation of molecular studies from the early 1990s Diego County, a site presumed to be of critical habitat was not prudent because revealed almost no genetic diversity cultivated origin (Boyd 1987, pp. 3, 73). the designation would not be beneficial

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to the conservation of the species. On are no longer necessary. Such methods Species Act, published in the Federal August 10, 2004, the Center for and procedures include, but are not Register on July 1, 1994 (59 FR 34271), Biological Diversity and the CNPS filed limited to, all activities associated with and Section 515 of the Treasury and a lawsuit in U.S. Federal Court, scientific resources management such as General Government Appropriations Northern District of California against research, census, law enforcement, Act for Fiscal Year 2001 (Pub. L. 106– the Secretary of the Interior challenging habitat acquisition and maintenance, 554; H.R. 5658) and the associated the not prudent determination of critical propagation, live trapping, and Information Quality Guidelines issued habitat for B. nevinii and four other transplantation, and, in the by the Service, provide criteria, plant species that occur in southern extraordinary case where population establish procedures, and provide California (Center for Biological pressures within a given ecosystem guidance to ensure that decisions made Diversity et al. v. Gale Norton, Secretary cannot be otherwise relieved, may by the Service represent the best of the Department of the Interior, C–04– include regulated taking. scientific data available. They require 3240 JL). On December 21, 2004, a U.S. Critical habitat receives protection Service biologists to the extent District Court Judge signed an order under section 7(a)(2) of the Act through consistent with the Act and with the use granting a stipulated settlement the prohibition against destruction or of the best scientific data available, to agreement between the parties. The adverse modification of critical habitat use primary and original sources of Service agreed to propose critical with regard to actions carried out, information as the basis for habitat for B. nevinii, if prudent, on or funded, or authorized by a Federal recommendations to designate critical before January 30, 2007, and finalize the agency. Section 7(a)(2) requires habitat. When determining which areas designation on or before January 30, consultation on Federal actions that are are critical habitat, a primary source of 2008. We are hereby withdrawing our likely to result in the destruction or information is generally the listing previous not prudent determination of adverse modification of critical habitat. package for the species. Additional critical habitat for B. nevinii. We have The designation of critical habitat does information sources include the reconsidered our not prudent finding, not affect land ownership or establish a recovery plan for the species, articles in and now believe that identification of refuge, wilderness, reserve, preserve, or peer-reviewed journals, conservation primary constituent elements and other conservation area. Such plans developed by States and counties, essential areas (critical habitat designation does not allow government scientific status surveys and studies, designation) may provide educational or public access to private lands. biological assessments, or other information to individuals, local and Section 7(a)(2) is a purely protective unpublished materials and expert State governments, and other entities. measure and does not require opinion or personal knowledge. All We also do not have any documentation implementation of restoration, recovery, information is used in accordance with that over-collection has increased or enhancement measures. the provisions of Section 515 of the significantly since the species was To be included in a critical habitat Treasury and General Government listed. We now believe that the benefits designation, the habitat within the area Appropriations Act for Fiscal Year 2001 of identifying essential habitat for B. occupied by the species must first have (Pub. L. 106–554; H.R. 5658) and the nevinii outweigh the potential risk of features that are essential to the associated Information Quality over-collection and thus we are now conservation of the species. Critical Guidelines issued by the Service. proposing critical habitat for this habitat designations identify, to the Section 4 of the Act requires that we species. extent known using the best scientific designate critical habitat on the basis of A recovery plan for Berberis nevinii data available, habitat areas that provide the best scientific and commercial data has not yet been completed. For more essential life cycle needs of the species available. Habitat is often dynamic, and information on previous Federal actions (i.e., areas on which are found the species may move from one area to concerning B. nevinii, refer to the final primary constituent elements, as another over time. Furthermore, we listing rule published in the Federal defined at 50 CFR 424.12(b)). recognize that designation of critical Register on October 13, 1998 (63 FR Habitat occupied at the time of listing habitat may not include all of the 54956). may be included in critical habitat only habitat areas that may eventually be if the essential features thereon may determined to be necessary for the Critical Habitat require special management recovery of the species. For these Critical habitat is defined in section 3 considerations or protection. Areas reasons, critical habitat designations do of the Act as (i) The specific areas outside of the geographic area occupied not signal that habitat outside the within the geographical area occupied by the species at the time of listing may designation is unimportant or may not by a species, at the time it is listed in only be included in critical habitat if be required for recovery. accordance with the Act, on which are they are essential for the conservation of Areas that support populations, but found those physical or biological the species. Accordingly, when the best are outside the critical habitat features (I) Essential to the conservation available scientific data do not designation, will continue to be subject of the species and (II) that may require demonstrate that the conservation needs to conservation actions implemented special management considerations or of the species require additional areas, under section 7(a)(1) of the Act and to protection; and (ii) specific areas we will not designate critical habitat in the regulatory protections afforded by outside the geographical area occupied areas outside the geographical area the section 7(a)(2) jeopardy standard, as by a species at the time it is listed, upon occupied by the species at the time of determined on the basis of the best a determination that such areas are listing. An area currently occupied by available information at the time of the essential for the conservation of the the species that was not known to be action. Federally funded or permitted species. Conservation, as defined under occupied at the time of listing will projects affecting listed species outside section 3 of the Act, means to use and likely, but not always, be essential to the their designated critical habitat areas the use of all methods and procedures conservation of the species and, may still result in jeopardy findings in that are necessary to bring any therefore, typically included in the some cases. Similarly, critical habitat endangered species or threatened critical habitat designation. designations made on the basis of the species to the point at which the The Service’s Policy on Information best available information at the time of measures provided pursuant to the Act Standards Under the Endangered designation will not control the

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direction and substance of future Botanic Garden). A variety of other peer- to 2,000 ft (300 to 650 m) (63 FR 54958), recovery plans, habitat conservation reviewed and non-peer-reviewed but most native occurrences and the plans, or other species conservation articles were reviewed for background naturalized San Francisquito population planning efforts if new information information on plant ecology, natural are between 1,400 and 1,700 ft (427 to available to these planning efforts calls history, and biology, as well as plant 518 m) in elevation (Boyd 1987, p. 2; for a different outcome. response to fire and other disturbances CNDDB 2006). One native occurrence in California shrubland (e.g., chaparral) on the Big Oak Mountain summit north Methods communities. of Vail Lake in Riverside County is at As required by section 4(b)(2) of the approximately 2,700 ft (823 m) Primary Constituent Elements Act, we used the best scientific data elevation, and scattered naturalized available in determining areas that In accordance with section 3(5)(A)(i) occurrences are found outside the 900 to contain the features essential to the of the Act and regulations at 50 CFR 2,000-foot (300 to 650 m) elevation conservation of Berberis nevinii. This 424.12, in determining which areas to range (Boyd 1987, pp. 42, 75; CNDDB included information from the following propose as critical habitat, we consider 2006). Berberis nevinii has been found sources: (1) Final listing rule (63 FR those physical or biological features in varied topography from nearly flat 54956, October 13, 1998); (2) CNDDB (PCEs) that are essential to the sandy washes, terraces, benches, and (2006); (3) California Native Species conservation of the species, and within canyon floors to gravelly wash margins, Field Survey Forms submitted to the areas occupied by the species at the steeply-sloped banks of drainages, steep CDFG; (4) herbarium collection records time of listing, that may require special rocky slopes, ridges, and mountain from the Consortium of California management considerations or summits (CNDDB 2006). Herbaria and Rancho Santa Ana Botanic protection. These include, but are not Based on 1987 field surveys by Garden; (5) Western Riverside County limited to: Space for individual and Nishida, native Berberis nevinii MSHCP; (6) botanical assessments and population growth and for normal occurring on slopes in Scott Canyon and inventories of southern California; (7) behavior; food, water, air, light, south of Vail Lake were found in areas management documents and survey/ minerals, or other nutritional or with slopes of 35 to 70 percent slope monitoring reports for B. nevinii on U.S. physiological requirements; cover or (Boyd 1987, pp. 7, 45, 62, 65, 68). Other Forest Service land; (8) technical reports shelter; sites for breeding, reproduction, B. nevinii plants occurring on slopes in prepared by the Rancho Santa Ana and rearing (or development) of the Vail Lake/Oak Mountain area Botanic Garden; (9) communications offspring; and habitats that are protected generally occupy areas of less than 70 from species experts; (10) aerial from disturbance or are representative of percent slope, based on Service GIS data photography; and (11) regional the historic geographical and ecological (2006). Naturalized (i.e., nonnative) Geographic Information System (GIS) distributions of a species. occurrences are known to grow on layers for land ownership, soils, and The specific primary constituent steeper slopes (e.g., 85 to 120 percent vegetation (California Wildlife Habitat elements required for Berberis nevinii slope) in San Francisquito Canyon Relationships (CWHR) System). We also are derived from the biological needs of (Boyd 1987, p. 7, based on field surveys used information collected by Service the species as described in the final by Nishida). Berberis nevinii generally biologists who conducted site visits to listing rule (63 FR 54956, October 13, occurs on north, northeast, or Big Oak Mountain (CNDDB element 1998), as well as information contained northwest-facing slopes; however, occurrence 38) and the Cleveland in this proposed rule. exceptions to this have been noted, National Forest (CNDDB element Space for Growth and Reproduction including several occurrences, both occurrence 31). native and naturalized, found on south We have also reviewed available Berberis nevinii has a limited natural and west-facing slopes (Boyd 1987, pp. information that pertains to the habitat distribution; it typically occurs in small 7, 40, 77; Boyd et al. 1989, p. 24; Soza requirements of Berberis nevinii. There stands (less than 20 individuals, and and Boyd 2000, p. 22; CNDDB 2006). is limited information on habitat often only one or two) in scattered Berberis nevinii is found on a variety requirements for this species, but the locations in Los Angeles, San of soils and bedrock substrates. Native primary sources are: (1) CNDDB (2006); Bernardino, and Riverside Counties, occurrences appear to be strongly (2) California Native Species Field with the largest native occurrence (as associated with alluvial soils or soils Survey Forms submitted to CDFG; (3) defined by CNDDB) consisting of several derived from nonmarine sedimentary habitat parameters compiled by Boyd stands and totaling about 134 based substrates, especially sandy (Rancho Santa Ana Botanic Garden) individuals to the south of Vail Lake in arkose (sandstone derived from granitic based on the results of a field survey by Riverside County (Boyd 1987; CNDDB material) (Boyd 1987, p. 7; Boyd and Nishida (Rancho Santa Ana Botanic 2006). Within these areas, B. nevinii Banks 1995, unpaginated; Soza and Garden technical report No. 3 (1987, p. requires appropriate soils, topography, Boyd 2000, p. 25). Most of the plants at 7)); (4) botanical assessment of the Vail cover, and drainage within the Vail Lake are found in small stands on Lake property for the Riverside County landscape to provide space, food, water, Temecula arkose soils around the Planning Department (1989) and of air, light, minerals, or other nutritional southern end of the lake, with scattered Cleveland National Forest (1995); (5) or physiological requirements for individuals in the ‘‘badlands’’ to the monitoring data and reports for the individual and population growth and southeast and southwest (Boyd and Angeles National Forest (Soza and Boyd reproduction. Banks 1995, unpaginated). Several 2000 and Soza and Fraga 2003); (6) Characterizing Berberis nevinii habitat small, isolated stands on the south flank information from regional GIS layers for is difficult due to the varied soils, of Big Oak Mountain are associated with soils, vegetation, and percent slope bedrock substrates, and topography on metasedimentary substrates and springs values; and (7) information received which this species naturally occurs. or seeps (Boyd et al. 1989, p. 14; Soza from local species experts, including Additionally, this species is known to 2003), and two plants at the Big Oak descriptions of suitable habitat by the tolerate a wide range of environmental Mountain summit occur on heavy USFS (Soza 2003) that were based on conditions in cultivation (Mistretta and adobe/gabbro type soils with high the expertise and extensive field Brown 1989, p. 6). Berberis nevinii water-holding capacity formed from experience of Boyd (Rancho Santa Ana typically occurs at elevations from 900 metavolcanic geology (Mesozoic basic

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intrusive rock) (Soza 2003). The require groundwater (Niehaus 1977, p. (Boyd 1987, p. 2; CNDDB 2006). Several Cleveland National Forest occurrence is 2). Many of the plants in the Vail Lake native occurrences are associated with found at the contact between area are growing on mesic north or coastal oak woodland or riparian/ sedimentary (arkose) and northwest facing slopes. Several stands alluvial scrub vegetation, such as metasedimentary substrates (Boyd and are in canyons draining the south flank Quercus agrifolia, Populus fremontii, Banks 1995, unpaginated). Berberis of Big Oak Mountain and are associated Salix laevigata, Platanus racemosa, nevinii has also been found growing on with springs or seepages (Boyd et al. Baccharis glutinosa, and/or Pelona schist outcrops and granitic 1989, p. 14). The two plants on the Lepidospartum squamatum (CNDDB knolls (Boyd 1987, p. 7; Soza and Boyd summit of Big Oak Mountain are on clay 2006). Boyd (1987, p. 2) has noted that 2000, p. 22). soils with a high water-holding certain desert floral elements such as Overlying occurrence polygons with capacity. In the late spring and early Encelia farinosa, Chrysothamnus NRCS soils data, native Berberis nevinii summer, this site may receive greater nauseosus, Artemisia tridentata, occurrences appear to be associated moisture in the form of condensation Chilopsis linearis, Yucca schidigera, with the following soil series: from intrusion of marine air (Soza Opuntia parryii, and Atriplex canescens Riverwash at the Lopez Canyon site in 2003). are often characteristic of the general Los Angeles County; sandy loam of the Berberis nevinii occurs in association area and many of the specific sites Saugus series in Scott Canyon and with the following plant communities: where B. nevinii occurs in the vicinity coarse sandy loam of the Metz series alluvial scrub, cismontane (e.g., of Vail Lake. The presence of typically from the San Timoteo Canyon location chamise) chaparral, coastal sage scrub, desert floral elements likely reflects the in San Bernardino County; and at least oak woodland, and/or riparian scrub or transitional nature of these sites 17 different soil series in the Vail Lake/ woodland (Boyd 1987, pp. 2, 7; Boyd between the cismontane area to the west Oak Mountain area in Riverside County, 1989, pp. 6–8; 63 FR 54958; CNPS 2001, and the Colorado Desert to the east including Monserate sandy loams; p. 96; CNDDB 2006). Native B. nevinii (Boyd et al. 1989, p. 4). Hanford coarse sandy loams; fine sandy in Lopez Canyon, Scott Canyon, and Several observers have noted that loams of the Arlington and Greenfield, San Timoteo Canyon, as well as many seedlings and immature Berberis nevinii Pachappa, and Cajalco series; Cajalco of those found in the Vail Lake/Oak tend to occur in areas with some rocky fine sandy loams; rocky loams of Mountain area, occur within the measure of protection, either in the the Lodi and Las Posas series; and loams California Wildlife Habitat shade or cover of another plant (Boyd of the Las Posas, San Timoteo, and San Relationships (CWHR) landcover 1987, pp. 77–78, based on field surveys Emigdio series (Service GIS data 2006). described as coastal scrub or mixed by Nishida; Mistretta and Brown 1989, Additional soil series found within chaparral (Service GIS data 2006). p. 10). This suggests the need for some mapped B. nevinii occurrences include Berberis nevinii is occasionally found in fire-free period to allow for canopy gullied land and riverwash primarily coastal oak woodland in the Vail Lake/ growth. However, Nishida (Boyd et al. south of Vail Lake, and badland to the Oak Mountain area, characterized by 1987, p. 77) noted that mature north and southeast of Vail Lake. open to dense stands of the large individuals were located in areas where Occurrences north of Vail Lake on the evergreen coast live oak (Quercus they were exposed to full sunlight, and south slopes of Big Oak Mountain and agrifolia) in close association with Reiser (2001, unpaginated) noted that its summit are mapped primarily as surrounding scrub vegetation (Boyd et this species frequently towers above Auld clay, 8 to 15 percent slopes, al. 1989, p. 7). In the Vail Lake area, this associated subshrubs. Based on Cajalco rocky fine sandy loam, 15 to 50 woodland type is found primarily in observations in the field, Nishida percent slopes, eroded, and Las Posas sandy washes, benches, and canyons on suggested that seedlings may be shade loam and rocky loam, 8 to 15 percent north-facing slopes, near ephemeral tolerant, but that as B. nevinii matures, slopes, eroded. The B. nevinii site on the stream channels, and/or associated with it may require more sunlight (Mistretta Cleveland National Forest south of Vail springs (Boyd et al. 1989, pp. 7–8). The and Brown 1989, Attachment: ‘‘Report Lake is mapped as gullied land and San Francisquito site, where B. nevinii on the Population and Ecological Data coarse sandy loam of the Hanford series, has apparently naturalized, also has of nevinii’’ by Joy Nishida, p. 8 to 15 percent slopes, eroded (Service some coastal oak woodland, and Q. 1). A similar shade/sunlight GIS data 2006). agrifiolia is locally common south of B. requirement has been noted for several Native occurrences of Berberis nevinii nevinii in the canyon bottom at the other resprouting chaparral shrub are generally found growing in well- Lopez Canyon site (Soza and Boyd 2000, species, where seedlings and saplings drained soils, and are known from xeric pp. 23, 26). Several stands in the Vail are found mostly in the shade of other slopes and rock outcrops. According to Lake area occur within the CWHR plants and seldom in the open, but Lenz and Dourley (1981, as cited in landcover described as valley foothill recruitment into the shrub population Mistretta and Brown 1989, p. 5), B. riparian, and several occurrences are appears to require the later development nevinii is considered a drought-tolerant also partly characterized as annual of a canopy gap, such as may be created species, but it will also accept large grassland (Service GIS data 2006). The by a fire event (Keeley 1992, p. 1206). amounts of water in cultivation without Scott Canyon site is described as having We have little information about apparent damage. Observations of native an abundance of annual grasses (Boyd pollinators, seed dispersal mechanisms, occurrences suggest that, within its 1987, pp. 44–48, CNDDB 2006). or the reproductive biology of this general habitat, B. nevinii may be Extant, native occurrences of Berberis species. Berberis nevinii has perfect associated with more mesic nevinii are often found in association (hermaphroditic) yellow flowers microhabitats. Niehaus (1977, p. 2) with one or more of the following clustered in loose that bloom noted that B. nevinii occurs mostly at chaparral and coastal sage scrub species: from March through April, and fleshy, the margins of dry washes in or below Eriogonum fasciculatum, Artemisia yellowish-red to red berries with plump, the foothill zone, but is not present in californica, , brown seeds that are present from May the driest portion of a wash. At some Rhus ovata, R. trilobata, or R. to July (Wolf 1940, unpaginated; Munz sites, B. nevinii is associated with integrifolia, mellifera, Sambucus 1974, p. 245; Neihaus 1977, p. 1; Morris species such as Lepidospartum mexicana, Prunus ilicifolia, Rhamnus 2006). Species-specific information on squamatum and Prunus ilicifolia that crocea, and Quercus berberidifolia pollinators is lacking, but B. nevinii may

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be pollinated by bee species. According generally be described as obligate variation (Keeley 2006, p. 382). to Mussen (2002), California’s native seeding, obligate sprouting, or Additionally, while coastal sage scrub Berberis species are ‘‘visited (and facultative sprouting (Kelly and Parker and chaparral have the largest amount probably pollinated) by honey bees’’ 1990, p. 114). Obligate seeders are of area that has burned multiple times (Apis mellifera), and according to the typically killed by fire and rely entirely over the past century and have the U.S. Department of Agriculture (2006), on seeds for regeneration. Most have highest potential fire frequencies of all native Berberis species ‘‘provide locally dispersed seeds that persist in vegetation community types, only the significant forage for native bees.’’ We the soil seed bank until dormancy is former clearly shows an increasing also do not know if B. nevinii is able to broken by an environmental stimulus, trend in area burned over this time self-fertilize, as the genus Berberis such as intense heat (Keeley 1991, p. period (Wells et al. 2004, pp. 148, 151). contains species that are both self- 82). Obligate sprouters, on the other Too frequent fire on the landscape compatible and self-incompatible hand, are rarely killed by fire, but rather could potentially kill mature, (Anderson et al. 2001, p. 227). Seed resprout from roots, lignotubers, or resprouting Berberis nevinii as well as dispersal by both birds and mammals is epicormic buds (Kelly and Parker 1990, young plants before they have reached widespread within the genus Berberis p. 114). These species have seeds that their reproductive potential and before (Young and Young 1992, p. 52; Vines do not require fire for germination, but the soil seed bank is replenished (Boyd 1960, pp. 271–273), and thus is likely require fire-free periods for recruiting 1991, pp. 7, 9). Repeated burnings over within B. nevinii. Wolf (1940, new seedlings (Keeley 1991, p. 82). In short intervals could eventually lead to unpaginated) noted that the abundant some species, postfire regeneration type conversion of chaparral/shrublands fruits of B. nevinii are eaten by various occurs by both sprouts and seeds, and to nonnative annual grassland (Boyd bird species. Seasonal rains flowing fire-caused mortality is variable 1991, p. 9; Keeley et al. 1999, p. 1831), through washes and channel drainages (facultative sprouters) (Kelly and Parker as has been observed in areas may also disperse seed of B. nevinii 1990, p. 114). surrounding urban centers (Keeley 2006, located in these areas (Roof 1968, p. 22; Berberis nevinii is known to p. 382). Therefore, conservation of rare Mistretta and Brown 1989, p. 6; Soza regenerate by stump sprouting following plants in southern California, such as B. and Boyd 2000, p. 3). However, due to fire (Soza and Fraga 2003, p. 2; Sanders nevinii, that are associated with the lack of specific information on 2006; Mistretta and Brown 1989, p. 5). chaparral, coastal sage scrub, or other habitat requirements for B. nevinii Mature individuals often possess a basal shrubland vegetation communities may related to pollination and seed burl (Mistretta and Brown 1989, p. 5), a require preservation of enough land dispersal, we were unable to fully swelling at the junction of roots and around known occurrences to allow for incorporate these potential areas into stems that allows a plant to sprout from maintenance of natural fire regimes our identification of essential habitat for the base and regenerate after a fire that (Boyd 1991, pp. 10–11). However, we do the species. kills above-ground vegetation. The not have sufficient information to Berberis nevinii does not appear to germination response of B. nevinii to quantify the extent of the area necessary reproduce by vegetative means fire is not known. According to Soza to do so for particular B. nevinii (rootsprout) to any great extent and Boyd (2003, p. 2), Soza (2006), and occurrences. Therefore, we are unable to (Mistretta and Brown 1989, p. 5; Boyd the USFS (2005, p. 237), post-fire fully incorporate these potential areas 2006); in other words, it does not surveys on the Angeles and Cleveland into our identification of essential regularly produce clones (genetically National Forests found recruitment from habitat for B. nevinii. identical direct descendants) that are both resprouting and seeding. This Life history characteristics and well separated from the parent suggests that this species may also population demographics of Berberis individual through the process of regenerate by seed following fire. nevinii are largely unknown and rooting at nodes in the , as is the Berberis nevinii’s response to altered unstudied. Berberis nevinii is a long- case with some other members of the fire regimes (e.g., changes to fire lived species (>50 years) (Mistretta and genus Berberis. One potential exception frequency, timing, and/or intensity) is Brown 1989, p. 5) with low is an (extirpated) occurrence south of also unknown (63 FR 54961), such as reproductive rates in the wild due to Redlands in San Bernardino County, resprouting response and soil seedbank sporadic production of fertile seed which appeared to be reproducing only persistence under conditions of high fire (Mistretta and Brown 1989, p. 5). It has by vegetative spread (Sanders 2006). frequency. Because southern California been suggested that B. nevinii may be a Because vegetative reproduction shrublands are adapted to a natural fire paleoendemic relic (Reiser 2001, appears to be uncommon, Mistretta and regime, plants within these unpaginated), which could explain its Brown (1989, p. 5) concluded that communities likely require such limited (small and widely scattered) perpetuation of the species is likely conditions for long-term survival (63 FR distribution and low reproductive rates dependent on its occasional production 54961). in the wild (Soza 2003). of viable seed. Comparison of the contemporary fire The ability of Berberis nevinii to regime in southern California to that of stump sprout following disturbance Landscape Ecology and Population the natural regime (i.e., pre-fire (e.g., fire), as well as its great longevity, Demographics of Berberis nevinii suppression) shows that in the lower may play an important role in Many extant occurrences of Berberis coastal valley and foothill zone, fire persistence of the species. As discussed nevinii are associated with chaparral or frequency has increased, and that high in Garcia and Zamora (2003, p. 921), coastal sage scrub. Fire is a natural fire frequencies tend to occur in those there may be a population maintenance occurrence in southern California areas where high human densities trade-off for long-lived plants between shrublands, and plants occurring in interface with relatively undeveloped replacement of individuals by seeding these vegetation communities are landscape (Keeley et al. 1999, p. 1831; and persistence of established plants. A resilient and/or adapted to these types Keeley and Fotheringham 2001, p. 1545; persistence strategy may allow plants to of disturbances (Keeley 1991, p. 84; Wells et al. 2004, p. 147; Keeley 2006, survive through unfavorable conditions, Tyler 1996, p. 2182). Postfire p. 382). However, fire suppression has potentially to reproduce again when regeneration mechanisms among kept fires in check so that most stands conditions are more favorable (Garcia California shrubland species can burn within the range of natural and Zamora 2003, p. 924). As

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mentioned previously, there appears to units contain all PCEs and support one naturalized occurrence (San be little to no regeneration by seed multiple life processes, while some Francisquito Canyon) may contain an occurring at most B. nevinii units contain only a portion of the PCEs individual and/or descendents of an occurrences. However, since the species necessary to support the species’ individual that originated from a is long-lived, it may produce seed particular use of that habitat. Where a location where B. nevinii no longer intermittently and life-time seed subset of the PCEs is present at the time occurs (i.e., the San Fernando Valley). production may be a more important of designation, this rule protects those Thus, we will continue to explore the consideration in terms of perpetuation PCEs and thus the conservation function potential conservation value of of the species than annual seed of the habitat. naturalized occurrences, and consider production. these occurrences in future recovery Criteria Used To Identify Critical actions as appropriate. Primary Constituents Elements for Habitat We are aware of 39 records for Berberis nevinii As required by section 4(b)(1)(A) of Berberis nevinii rangewide documented Under our regulations, we are the Act, we used the best scientific data by the CNDDB (2006), of which we required to identify the known physical available in determining areas that consider 19 to be extant, native and biological features (PCEs) essential contain the features that are essential to occurrences. All of the extant, native to the conservation of Berberis nevinii. the conservation of Berberis nevinii. occurrences were known at the time of All areas proposed as critical habitat for This species naturally occurs in small, listing, although each occurrence was B. nevinii are currently occupied, are isolated stands across its geographic not specifically described in the final within the species’ historic geographic range, with several known occurrences listing rule (63 FR 54956, October 13, range, and contain sufficient PCEs to consisting of only a single large and 1998). The majority of these occurrences support at least one life history presumably very old individual. At are in the vicinity of Vail Lake and Oak function. most sites, there is little to no evidence Mountain, which is described within Based on our current knowledge of of reproduction. The Vail Lake/Oak the final listing rule as one of the main the life history, biology, and ecology of Mountain area in western Riverside geographical areas occupied by the the species, and the requirements of the County has the highest concentration of species. habitat necessary to sustain the essential native B. nevinii, representing several As discussed in the Background life history functions of the species, we size (age) classes. It occurs in numerous section of this proposed rule, our have determined that Berberis nevinii’s stands scattered throughout the area, Western Riverside County MSHCP PCEs are: with the largest number of plants database contains 32 records of extant (1) Low-gradient (i.e., nearly flat) located south of Vail Lake and on the Berberis nevinii occurrences from the canyon floors, washes and adjacent peninsula. The long-term conservation vicinity of Vail Lake/Oak Mountain terraces, and mountain ridge/summits, of B. nevinii will depend upon the alone, as well as one record from the or eroded, generally northeast- to protection of such extant, native Soboba Badlands. However, many of the northwest-facing mountain slopes and occurrences and the maintenance of MSHCP records overlap and some banks of dry washes typically of less ecological functions within these sites. appear to duplicate CNDDB records. than 70 percent slope that provide space We delineated proposed critical Accompanying data, such as number of for plant establishment and growth; habitat for Berberis nevinii using the plants, origin (native versus cultivated), (2) Well-drained alluvial soils following criteria: (1) Areas known to be and habitat associations are largely primarily of non-marine sedimentary occupied by naturally-occurring lacking, making it impossible to origin, such as Temecula or sandy individuals of the species at the time of accurately quantify the actual number of arkose soils; soils of the Cajalco- listing and areas that are currently distinct occurrences or plants in this Temescal-Las Posas soil association occupied by naturally-occurring area (Service 2004, pp. 330–331). We formed on gabbro (igneous) or latite individuals; (2) areas within the historic also do not know the specific location (volcanic) bedrock; metasedimentary range of the species; (3) areas containing of many of these occurrences. Therefore, substrates associated with springs or one or more PCEs essential to the we did not rely on the MSHCP seeps; and heavy adobe/gabbro-type conservation of the species; and (4) occurrences for determining critical soils derived from metavolcanic geology areas currently occupied by more than habitat, but rather we are seeking (Mesozoic basic intrusive rock) that two B. nevinii plants that show evidence additional information to clarify these provide the appropriate nutrients and of reproduction (i.e., fruits with seed, records (see Public Comments Solicited space for growth and reproduction; and seedlings, or plants of various size/age section). (3) Scrub (chaparral, coastal sage, classes) on site. For sites where there Of the 19 extant, native occurrences alluvial, riparian) and woodland (oak, was no information available on in the CNDDB (2006), we consider only riparian) vegetation communities reproduction or size/age class six in Riverside County in the vicinity between 900 and 3,000 ft (275 and 915 distribution, we assumed that of Vail Lake/Oak Mountain to meet our m) in elevation that provide the reproduction had occurred at some criteria for designating critical habitat appropriate cover for growth and point in the past if multiple B. nevinii (CNDDB element occurrences 24, 31, 32, reproduction. plants were present. As discussed 35, 36, and 38). Five of the six This proposed designation is designed below, we also gave consideration to the occurrences consist of more than two for the conservation of those areas ecological uniqueness of sites. individuals, and evidence of containing PCEs necessary to support Whether naturalized occurrences may reproduction (multiple size classes, the life history functions that were the play a role in conservation of the seedlings, and/or fruit with seed) is basis for the proposal. Because not all species is currently unknown. However, known for three of the occurrences life history functions require all the the naturalized occurrences represent (CNDDB element occurrences 24, 31, PCEs, not all proposed critical habitat some of the largest (in terms of number and 38). We do not know if will contain all the PCEs. Units are of individuals) and most vigorously reproduction has occurred at the other designated based on sufficient PCEs reproducing occurrences of the species, three sites (CNDDB element occurrences being present to support one or more of and could potentially play a role in 32, 35, and 36), but we believe that it the species’ life history functions. Some preserving genetic diversity. At least is possible given that these occurrences

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represent some of the largest groupings essential to conservation of Berberis (4) Using GIS, we overlaid the of the species. While we propose the nevinii, and we included these areas in occurrences identified in number 3 areas that support these occurrences as proposed critical habitat if they were above on aerial imagery and compared critical habitat, we are seeking occupied by more than a single large the polygon locations for these additional information on the (i.e., mature) individual. Areas occupied occurrences with location information reproductive status and exact numbers by only one large individual represent provided in field survey forms to of individuals per stand (see Public sites where regeneration is not narrow down and refine the location of Comments Solicited section). For a occurring; thus, we did not consider B. nevinii occurrence polygons; and detailed description of each of these six these areas to be essential to (5) We then overlaid these occurrences, see the Proposed Critical conservation of the species. occurrences with a series of 100 x 100 Habitat Designation section of this We also evaluated whether meter grid cells. Areas where the proposed rule. maintaining adjacent unoccupied occurrence polygon intersected with a We do not have adequate information habitat or corridors between grid cell were retained. We used GIS to determine the status of six Berberis occurrences may be important to soil and vegetation data to ensure that nevinii occurrences recorded in the facilitate and allow for pollination and habitat within the grid cells containing CNDDB (2006). Three occurrences in seed dispersal within and between the occurrence polygons contained one Los Angeles County may be extant, but stands of Berberis nevinii. However, we or more of the PCEs. Using aerial their existence has not been confirmed do not have any information that photography, we removed areas that did since the early to mid 1900s (two suggests a certain quantity of habitat is not contain any of the PCEs for the records in Arroyo Seco near Pasadena necessary to maintain the pollinator species (e.g., aquatic habitat in Vail (CNDDB element occurrences 8 and 9) species associated with B. nevinii Lake). Critical habitat designations were and one record in Big Tejunga Wash occurrences. The few available reports then described and mapped using near San Fernando (CNDDB element actually noted that the genus Berberis is Universal Transverse Mercator (UTM) occurrence 10), which may be pollinated by generalist species, such as North American Datum 27 (NAD 27) mismapped). Three other occurrences honey bees (Lebuhn and Anderson coordinates. have vague location descriptions and/or 1994, p. 259; Mussen 2002, Areas meeting these criteria were then may be mismapped, including one in unpaginated). It may also be necessary analyzed to determine if any existing conservation or management plans exist Los Angeles County (CNDDB element to maintain the natural fire regime that benefit the species and their PCEs. occurrence 18), one in Riverside County associated with this species’ habitat. Berberis nevinii is included as a covered (CNDDB element occurrence 14), and However, sufficient information is not species in the Western Riverside County one in San Diego County (CNDDB available to quantify the extent of the MSHCP. As a result, occupied areas on element occurrence 45). We are seeking area necessary to maintain the natural private land within the area covered by additional information to verify and/or fire regime for particular B. nevinii the MSHCP (Plan Area) are being clarify these records (see Public occurrences. Therefore, we are unable to proposed for exclusion from the final Comments Solicited section). fully incorporate these areas into our We evaluated whether geographically designation of critical habitat for this identification of essential habitat. (e.g., Los Angeles and San Bernardino species under section 4(b)(2) of the Act Counties) peripheral native occurrences The Vail Lake/Oak Mountain area has (see Relationship of Critical Habitat to would fit into our criteria for identifying the largest number of extant, native Approved Habitat Conservation Plans critical habitat. Despite the biological Berberis nevinii, which are located in (HCPs)—Exclusion Under Section conservation arguments raised by Lesica numerous scattered stands. Because an 4(b)(2) of the Act for a detailed and Allendorf (1995; p. 753, 754) to extreme catastrophic event could wipe discussion). conserve peripheral populations, we out one or more stands of B. nevinii, When determining proposed critical found that these Berberis nevinii protecting multiple stands throughout habitat boundaries, we made every occurrences did not meet our criteria for this area may be important to the long- effort to avoid including developed designation of critical habitat because term conservation of the species. The areas such as buildings, paved areas, they consisted of very few individuals areas that we are proposing as critical and other structures that lack PCEs for (often only one) and did not appear to habitat are scattered to the north, south, Berberis nevinii. The scale of the maps be reproducing. For example, the Lopez and east of Vail Lake, which may prepared under the parameters for Canyon (CNDDB element occurrence 43) provide some protection against publication within the Code of Federal and Scott Canyon (CNDDB element complete loss of the species from this Regulations may not reflect the occurrence 5) occurrences each consist locality due to a catastrophic event, exclusion of such developed areas. Any of only a single large (old) individual such as flooding or high intensity fire. such structures and the land under them with no signs of past or current We delineated critical habitat unit inadvertently left inside critical habitat reproduction by seed (CNDDB element boundaries in the following manner: boundaries shown on the maps of this occurrences 43 and 5). The San Timoteo (1) We identified all areas known to proposed rule have been excluded by Canyon occurrence (CNDDB element be occupied at the time of listing and/ text in the proposed rule and are not occurrence 4) has an unknown number or currently occupied by Berberis proposed for designation as critical of individuals (potentially only one), nevinii using location data in the habitat. Therefore, Federal actions and reproduction has likely not CNDDB (2006); limited to these areas would not trigger occurred at this site in many decades (2) We classified each of these section 7 consultation, unless they affect (Sanders 2006). occurrences as to their origin (native or the species and/or primary constituent We also considered the ecological cultivated), status (extant or extirpated), elements in adjacent critical habitat. uniqueness of sites because occurrences number of plants, and evidence of We propose to designate critical within unique habitats may harbor reproduction, where possible; habitat in areas that contain naturally genetic diversity that allows for (3) We determined which occurrences occurring Berberis nevinii plants (i.e., persistence in these areas (Lesica and contain features essential to the not of cultivated origin or consisting of Allendorf 1995, p. 757). We determined conservation of the species using the outplanted individuals). We have that ecologically unique habitats were criteria described above; determined these areas were occupied at

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the time of listing and contain sufficient natural fire processes to which native surface and subsurface structure primary constituent elements (PCEs) to plant communities are adapted and through trampling and clearing or support life history functions essential which they require for long-term thinning of vegetation, and the for the conservation of the species. No survival, and the introduction of introduction of nonnative plants (PCE areas outside the geographical area invasive, nonnative plants that may 3), soil disturbance and/or compaction occupied at the time of listing have been compete with Berberis nevinii and/or (PCE 2), and increased erosion and proposed for designation. Additionally, contribute to combustible fuel loads (63 changes to hydrological (drainage and information provided in comments on FR 54961). These threats can directly or water infiltration) patterns, which may the proposed critical habitat designation indirectly result in the loss, in turn affect the topography, soil, and and draft economic analysis will be modification, degradation, and/or vegetation of the site (PCE 1, 2, and 3). evaluated and considered in the fragmentation of B. nevinii habitat, Activities associated with fire development of the final designation for thereby eliminating or reducing management, such as fuel treatments, B. nevinii. potential habitat for seed germination, prescribed burns, and wildfire Section 10(a)(1)(B) of the Act seedling establishment, plant growth suppression, may also impact the authorizes us to issue permits for the and maturation, and/or population physical and biological features take of listed species incidental to growth. Individually or combined, these essential for conservation of the species. otherwise lawful activities. An threats may require special management The creation of firebreaks, brush incidental take permit application must considerations or protection of the PCEs clearing or thinning, and the use of be supported by a habitat conservation as addressed here and in more detail heavy equipment and off-road vehicles plan (HCP) that identifies conservation within the individual critical habitat for fire management could physically measures that the permittee agrees to unit descriptions that follow. remove or disturb soils and alter soil implement for the species to minimize Urbanization, flood control measures, composition (PCE 2), remove or destroy and mitigate the impacts of the road widening, and habitat degradation vegetation (PCE 3), increase erosion, and requested incidental take. We often from extensive recreational use have alter the topography (PCE 1) and exclude non-Federal public lands and contributed to the loss of Berberis hydrologic patterns in or near Berberis private lands that are covered by an nevinii habitat and have apparently nevinii occurrences. Fire management existing operative HCP and executed resulted in the extirpation of several activities could facilitate the incursion implementation agreement (IA) under occurrences, particularly within the San or spread of invasive, nonnative plants section 10(a)(1)(B) of the Act from Fernando Valley of Los Angeles County by potentially creating (disturbance) designated critical habitat because the (63 FR 54961). Urbanization may conditions that increase the competitive benefits of exclusion outweigh the destroy, degrade, fragment, or otherwise edge of nonnative species over native benefits of inclusion as discussed in alter the topography, soil, and species, thereby altering the section 4(b)(2) of the Act. All of the vegetation community structure in ways composition of the vegetation private land included in this proposed that make areas less suitable for B. community (PCE 3). Prescribed fires that critical habitat designation is in the nevinii. Land grading for residential are too frequent or that occur at times vicinity of Vail Lake and Oak Mountain development and road projects may of the year atypical of the natural fire and is covered by the Western Riverside affect the topography of the site (PCE 1); regime could also result in changes to County MSHCP. We are proposing to alter soil composition and structure vegetation community and structure exclude private lands covered under the (PCE 2); change vegetation community (PCE 3). Alternatively, if fire MSHCP from the final designation of composition and structure through management activities are successful in critical habitat for Berberis nevinii clearing or thinning of vegetation and keeping fire from the landscape, and because we believe that the benefits of the introduction of nonnative plants high canopy cover ensues, plant species exclusion outweigh the benefits of (PCE 3); increase erosion potential (PCE that require full or partial sun (i.e., inclusion (See Relationship of Critical 1 and 2); and change hydrological canopy gaps) to effectively establish Habitat to Approved Habitat (drainage and water infiltration) may become underrepresented in the Conservation Plans (HCPs)—Exclusion patterns, thereby decreasing the quality plant community, as will those plants Under Section 4(b)(2) of the Act section and extent of available habitat for B. that require fire for seed germination. for more details on the Western nevinii. Additionally, urban Proposed Critical Habitat Designation Riverside County MSHCP and a development near this species may complete discussion and analysis of the increase the frequency of fire. No urban We are proposing one unit as critical benefits of exclusion and inclusion of development is expected to directly habitat for Berberis nevinii: the Agua these lands in the critical habitat impact the known occurrences of B. Tibia/Vail Lake unit. This critical designation). nevinii on Federal or private land in the habitat unit is further divided into six vicinity of Vail Lake and Oak Mountain, subunits. The critical habitat unit and Special Management Considerations or although indirect impacts associated subunits described below constitute our Protection with increased urbanization may occur. best assessment at this time of areas When designating critical habitat, we Recreational activities may also that: (1) Have extant, native occurrences assess whether the areas determined to impact the physical and biological consisting of more than two B. nevinii be occupied at the time of listing features determined to be essential for plants with evidence of reproduction; contain primary constituent elements conservation of the species by and (2) contain some or all of the that may require special management destroying, degrading, fragmenting, or primary constituent elements that may considerations or protection. As stated otherwise altering the topography, soil, require special management in the final listing rule (63 FR 54956, and vegetation community in ways that considerations or protection. All of October 13, 1998), threats to the species make areas less suitable for Berberis these units were occupied at the time of include urban development, off-road nevinii. For example, off-highway listing and are currently occupied to the vehicle use, human recreation (e.g., vehicle use, hiking, camping, horseback best of our knowledge. Table 2 identifies horseback riding), highway projects, fire riding, and recreational facility the approximate area (ac/ha) of management strategies (suppression development in or near B. nevinii proposed critical habitat for B. nevinii, measures, brush clearing) that alter occurrences could alter or destroy and the areas being considered for

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exclusion from the final critical habitat Riverside County MSHCP (see 4(b)(2) of the Act section for a detailed designation under section 4(b)(2) of the Relationship of Critical Habitat to discussion). Table 3 identifies the Act. Areas proposed for exclusion are Approved Habitat Conservation Plans occupancy status for each unit. those areas covered under the Western (HCPs)—Exclusion Under Section

TABLE 2.—AREAS PROPOSED FOR CRITICAL HABITAT DESIGNATION FOR BERBERIS NEVINII, AND AREAS BEING CONSIDERED FOR EXCLUSION FROM THE FINAL CRITICAL HABITAT DESIGNATION UNDER SECTION 4(B)(2) OF THE ACT.

Area being consid- Area proposed as critical ered for exclusion Critical habitat unit Land ownership habitat from final critical habitat

1. Agua Tibia/Vail Lake: 1A. Big Oak Mountain Summit ...... BLM ...... 15 ac (6 ha) ...... 0 ac (0 ha) 1B. Agua Tibia Mountain Foothills ...... USFS ...... 17 ac (7 ha) ...... 0 ac (0 ha) Private ...... 5 ac (2 ha) ...... 5 ac (2 ha) 1C. South Flank Big Oak Mountain ...... Private ...... 87 ac (35 ha) ...... 87 ac (35 ha) 1D. North of Vail Lake ...... Private ...... 22 ac (9 ha) ...... 22 ac (9 ha) 1E. South of Vail Lake/Peninsula ...... Private ...... 251 ac (102 ha) ...... 251 ac (102 ha) 1F. Temecula Creek East ...... Private ...... 20 ac (8 ha) ...... 20 ac (8 ha)

Total ...... 417 ac (169 ha) ...... 385 ac (156 ha)

TABLE 3.—OCCUPANCY OF CRITICAL HABITAT UNITS DESIGNATED FOR BERBERIS NEVINII.

Occupied at Occupied Acres Critical habitat subunit time of listing? currently? (hectares)

Subunit 1A: Big Oak Mountain Summit ...... Yes ...... Yes ...... 15 (6) Subunit 1B: Agua Tibia Mountain Foothills ...... Yes ...... Yes ...... 22 (9) Subunit 1C: South Flank Big Oak Mountain ...... Yes ...... Yes ...... 87 (35) Subunit 1D: North of Vail Lake ...... Yes ...... Yes ...... 22 (9) Subunit 1E: South of Vail Lake/Peninsula ...... Yes ...... Yes ...... 251 (102) Subunit 1F: Temecula Creek East ...... Yes ...... Yes ...... 20 (8)

Total ...... 417 (169)

Below, we present brief descriptions (PCE 1 and 3). One individual is an old nevinii of different sizes (ages), of the proposed subunits and reasons plant that is covered in lichens, and the indicative of successful reproduction in why they meet the definition of critical other individual is considerably smaller the past. Because this occurrence is on habitat for Berberis nevinii. and at some distance to the northeast of an ecologically unique site, this subunit the older plant. This location is may be important in terms of preserving Unit 1: Agua Tibia/Vail Lake considered unusual (i.e., ecologically genetic diversity throughout the range of Unit 1 comprises approximately 417 unique) for the species in that it is at the species. Berberis nevinii occupied ac (169 ha) and is divided into six higher elevation and on relatively flat this subunit at the time of listing, as subunits: Big Oak Mountain Summit clay lenses consisting of heavy adobe/ identified in the final listing rule (63 FR (1A), Agua Tibia Mountain Foothills gabbro type soils with high water- 54956, October 13, 1998). (1B), South Flank Big Oak Mountain holding capacity, derived from Bureau of Land Management land on (1C), North of Vail Lake (1D), South of Mesozoic basic intrusive rock (PCE 2) Big Oak Mountain consists of three Vail Lake/Peninsula (1E), and Temecula (Soza 2003). Soils in this area are small parcels totaling 888 ac (360 ha), Creek East (1F). These lands in Unit 1 classified primarily as Auld clay, 8 to 15 which is surrounded by private land. contain the PCEs for Berberis nevinii percent slopes, and Las Posas loam, 8 to The primary threats to Berberis nevinii and also may be important for 15 percent slopes, eroded (PCE 2) habitat in this area that may require maintaining genetic diversity for the (Service GIS data 2006). This occurrence special management considerations or species as they include occurrences in is located in an open grassland area protection of the PCEs are the indirect ecologically unique areas. with chaparral nearby. Associated plant effects of urban/residential species include Chenopodium development, such as increased human Subunit 1A: Big Oak Mountain Summit californicum, Avena fatua, recreation; incursion or spread of Subunit 1A consists of approximately Harpagonella palmeri, Plantago erecta, invasive, nonnative plants; and changes 15 ac (6 ha) located on Big Oak Galium porrigens, and Delphinium to the natural fire regime (i.e., increased Mountain to the north of Vail Lake in species. ignitions and fire frequency, and southern Riverside County. This subunit We are proposing this subunit as shortened fire return intervals that can consists entirely of federally owned critical habitat even though it is lead to type conversion of shrublands to land managed by BLM. Two Berberis occupied by only two Berberis nevinii annual grasslands). The BLM Resource nevinii individuals of different sizes plants because it represents an Management Plan indicates that these (ages) are known to occur in this unit on ecologically unique site for the species parcels are closed to motorized vehicles the summit of Big Oak Mountain at and contains the features essential to the and livestock grazing (BLM 1994, p. 28). approximately 2,700 ft (823 m) elevation conservation of B. nevinii. Additionally, Special management considerations or (i.e., the lower edge of the marine layer) this site contains naturally-occurring B. protection of the PCEs may be required

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to minimize disturbance to the road vehicle use has occurred adjacent were attributed to one of the vegetation and soils within this subunit; to Highway 79, close to but not within subpopulations based on a 1989 survey control invasive, nonnative plants; and occupied habitat. Additionally, this (CNDDB 2006). Berberis nevinii maintain the natural hydrologic and fire occurrence has shown signs of individuals in this area are found on regime of the area. While this site falls disturbance from road activities (USFS south-facing drainage bottoms in within the Conservation Area for the 2005, p. 235), and Highway 79 is chaparral and sage scrub vegetation Western Riverside County MSHCP, this proposed for realignment (USFWS 2004, communities (PCE 1 and 3) (CNDDB area is federal land managed by BLM. p. 332), which could adversely affect 2006). Associated species include Therefore, we are not proposing BLM- this occurrence. The USFS does not Adenostoma fasciculatum, managed lands within this subunit for anticipate that the magnitude of impacts glauca, Artemisia exclusion under section 4(b)(2) of the related to camping and hiking will be californica, and Brickellia californica. Act. substantial, and these impacts will be Soils in this area are classified primarily avoided or mitigated by use of Forest Subunit 1B: Agua Tibia Mountain as Cajalco rocky fine sandy loam, 15 to Plan standards (USFS 2005, p. 234). Foothills 50 percent slopes, eroded; with Las Also, invasive, nonnative plants may Subunit 1B consists of approximately Posas rocky loam, 15 to 50 percent pose a threat to B. nevinii habitat quality slopes, severely eroded; and Auld clay, 22 ac (9 ha) located near the Agua Tibia at this site. Wilderness Area in southern Riverside One of the greatest threats to occupied 8 to 15 percent slopes to a lesser extent County. This subunit consists of 17 ac habitat on the Cleveland National Forest (PCE 2) (Service GIS data 2006). (7 ha) of federally owned land managed is from wildland fire and the We are proposing this subunit as by the USFS (Cleveland National Forest) management of fire and fuels (i.e., fire critical habitat because it contains and 5 ac (2 ha) of private land. Five suppression and prevention activities). features essential to conservation of Berberis nevinii individuals are known The Wildland-Urban Interface (WUI) Berberis nevinii, and it contains a from this area and are located at the Defense Zone overlaps about 43 percent relatively large natural occurrence of the edge of a stream channel (PCE 1) of occupied habitat on Cleveland species (CNDDB 2006). This subunit has growing in association with coast live National Forest (USFS 2005, p. 237; one of several relatively large oak and riparian woodland species (PCE USFWS 2005, p. 127). Some plants and/ occurrences (potentially the second 3). Nearby chaparral includes such or habitat within the WUI Defense Zone largest) of B. nevinii in the Vail Lake species as Quercus berberidifolia, could be removed or degraded under the area and thus has a greater potential for Adenostoma fasciculatum, and Revised Land and Resource regeneration by seed. This site may also Haplopappus squarrosus, and nearby Management Plan due to fuel removal be ecologically unique for the species; desert species include Yucca schidigera for fire protection or overly frequent fuel Boyd and others (1989, p. 14) indicated (CNDDB 2006). These B. nevinii plants treatments (USFWS 2005, p. 127). that B. nevinii located in canyons are growing under a canopy of Quercus Special management considerations or draining the south flank of Big Oak agrifolia and Platanus racemosa with protection of the PCEs may be required Mountain are associated with springs or the following species: Heteromeles to minimize disturbance to the seepages, which appears to be unusual arbutifolia, Q. berberidifolia, Elymus vegetation and soils within this subunit; for the species. Berberis nevinii condensatus, Mimulus aurantiacus, control invasive, nonnative plants; and occupied this subunit at the time of Lonicera subspicata, Pterostegia maintain the natural fire regime of the listing, as identified in the final listing drymarioides, and Epilobium canum. area. Soils in this area are classified as gullied This subunit falls within the rule (63 FR 54956, October 13, 1998). land and coarse sandy loam of the Conservation Area for the Western The primary threats to Berberis Hanford series, 8 to 15 percent slopes, Riverside County MSHCP; however, the nevinii habitat in this area that may eroded (PCE 2) (Service GIS data 2006). majority of this subunit is Federal land require special management We are proposing this subunit as managed by the USFS. Therefore, we are considerations or protection of the PCEs critical habitat because it contains not proposing USFS lands within this are the indirect effects of urban/ features essential to conservation of subunit for exclusion under section residential development, such as Berberis nevinii and it contains a 4(b)(2) of the Act. On the other hand, we increased human recreation; erosion; relatively large natural occurrence of the are proposing to exclude the private incursion or spread of invasive, species. Additionally, Service personnel lands within this subunit from the final nonnative plants; and changes to the visited this site in June 2006 while B. designation of critical habitat for natural fire regime (i.e., increased nevinii was in fruit, and found that Berberis nevinii. Please see Relationship ignitions and fire frequency and several of the fruits had three to four of Critical Habitat to Approved Habitat shortened fire return intervals) that can seeds, which may be significant for a Conservation Plans (HCPs)—Exclusion lead to type conversion of shrublands to species that appears to rarely set seed. Under Section 4(b)(2) of the Act— annual grasslands. Berberis nevinii occupied this subunit at Western Riverside County Multiple the time of listing, as identified in the Species Habitat Conservation Plan for a This subunit falls within the final listing rule (63 FR 54956, October detailed discussion. Conservation Area for the Western 13, 1998). Riverside County MSHCP, and we are The Berberis nevinii occurrence on Subunit 1C: South Flank Big Oak proposing to exclude the private lands Cleveland National Forest lands is not Mountain within this subunit from the final as well protected as the occurrence on Subunit 1C consists of approximately designation of critical habitat for B. the Angeles National Forest (USFS 87 ac (35 ha) of private land located nevinii. Please see Relationship of 2005, p. 238). Threats to B. nevinii north of Vail Lake on the south flank of Critical Habitat to Approved Habitat habitat in this area are associated with Big Oak Mountain in southern Riverside Conservation Plans (HCPs)—Exclusion the proximity of State Highway 79 and County. This occurrence is mapped as Under Section 4(b)(2) of the Act— include recreational impacts (off-road four small subpopulations by CNDDB Western Riverside County Multiple vehicle use, shooting) and increased risk (2006); while the total number of plants Species Habitat Conservation Plan for a of fire ignition (USFS 2005, p. 232). Off- is unknown, 17 Berberis nevinii plants detailed discussion.

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Subunit 1D: North of Vail Lake Subunit 1E: South of Vail Lake/ residential development, such as Peninsula increased human recreation; erosion; Subunit 1D consists of approximately incursion or spread of invasive, 22 ac (9 ha) of private land located Subunit 1E consists of approximately 251 ac (102 ha) of private land located nonnative plants (including Tamarix sp. immediately north of Vail Lake in on the south and southwest side of Vail and Nicotiana glauca) that can compete southern Riverside County. This Lake in southern Riverside County. This with native plant species; and changes occurrence is mapped along a canyon site has the largest known natural to the natural fire regime (i.e., increased just above the highwater line of Vail occurrence of Berberis nevinii, ignitions and fire frequency and Lake, and consists of seven plants based collectively consisting of 134 plants shortened fire return intervals) that can on a 1989 survey (CNNDB 2006). based on a 1987 survey (Boyd 1987, pp. lead to type conversion of shrublands to Berberis nevinii individuals in this area 7, 61–72; CNDDB 2006). These plants annual grasslands). Part of this are found in sandy and gravelly soils in are located in several stands along both occurrence has burned in the past, and regeneration by stump sprouting has a drainage bottom (PCE 1 and 2). The sides of the southwest arm of Vail Lake, been observed (CNDDB 2006). Part of vegetation community is classified as the south shore and peninsula, and part this area is fairly inaccessible, except by coastal scrub and valley foothill riparian of the west shore of the southeast arm boat; however, other parts are in close (PCE 3) (Service GIS data 2006). At this of Vail Lake. Berberis nevinii proximity to roads, equestrian trails, site, B. nevinii is associated with individuals in this area are found in and the boat launch area (Boyd 1987, Adenostoma fasciculatum, canyons, in a wash of 15 percent slope, pp. 61–72; CNDDB 2006), and thus may Arctostaphylos glauca, Rhus and on north-facing ridges and slopes be more heavily impacted by between 35 and 70 percent slope (PCE integrifolia, Juniperus californica, and recreational use. Rising lake levels 1) (Boyd 1987, p. 61–72; CNDDB 2006), Rhamnus crocea; and to the north is a could also adversely affect those large grove of Prosopis glandulosa primarily in association with coastal individuals occurring adjacent to the (CNDDB 2006). Soils in this area are scrub, mixed chaparral, and valley lake (Boyd 1987, pp. 61–72; CNNDB classified as badland (PCE 2) (Service foothill riparian communities (PCE 3) 2006). GIS data 2006). (Service GIS data 2006). Associated This site falls within the Conservation species include, but are not limited to: We are proposing this subunit as Area for the Western Riverside County Artemisia californica, Adenostoma MSHCP, and we are proposing to critical habitat because it contains fasciculatum, Eriogonum fasciculatum, features essential to conservation of exclude the private lands within this Salvia mellifera, Rhamnus crocea, Rhus subunit from the final designation of Berberis nevinii, and it contains a ovata, Encelia farinosa, Baccharis relatively large natural occurrence of the critical habitat for B. nevinii. Please see glutinosa, and Yucca sp. (Boyd 1987, p. Relationship of Critical Habitat to species (CNDDB 2006). This subunit is 61–72). Soils in this area are classified Approved Habitat Conservation Plans important for conserving B. nevinii as it as sandy loams (Arlington and (HCPs)—Exclusion Under Section is one of several relatively large Greenfield fine sandy loams, 8 to 15 4(b)(2) of the Act—Western Riverside occurrences in the Vail Lake area and percent slopes, eroded; Cajalco rocky County Multiple Species Habitat thus has a greater potential for fine sandy loam, 15 to 50 percent Conservation Plan for a detailed regeneration by seed. Berberis nevinii slopes, eroded; Hanford coarse sandy discussion. occupied this subunit at the time of loam, 8 to 15 percent slopes, eroded; listing, as identified in the final listing Lodi rocky loam, 25 to 50 percent Subunit 1F: Temecula Creek East rule (63 FR 54956, October 13, 1998). slopes, eroded; Monserate sandy loam, 8 Subunit 1F consists of approximately The primary threats to Berberis to 15 percent slopes, eroded; Monserate 20 ac (8 ha) of private land located sandy loam, 15 to 25 percent slopes, southeast of Vail Lake on the north side nevinii habitat in this area that may severely eroded; Pachappa fine sandy of Temecula Creek in Riverside County. require special management loam, 2 to 8 percent slopes, eroded), This occurrence is mapped as two small considerations or protection of the PCEs gullied land, riverwash, and rough subpopulations; while the total number are the indirect effects of urban/ broken land (PCE 2) (Service GIS data of plants is unknown, three plants were residential development, such as 2006). attributed to one of the subpopulations increased human recreation; erosion; We are proposing this subunit as based on a 1989 survey (CNDDB 2006). incursion or spread of invasive, critical habitat because it contains Berberis nevinii individuals in this area nonnative plants; and changes to the features essential to conservation of are found on a bank adjacent to a dry natural fire regime (i.e., increased Berberis nevinii, and it contains the wash (PCE 1) in a mixed chaparral ignitions and fire frequency, and largest known natural occurrence of the community (CNDDB 2006) with coastal shortened fire return intervals that can species (CNDDB 2006). This location scrub and annual grassland components lead to type conversion of shrublands to also contains the bulk of known (PCE 3) (Service GIS data 2006). annual grasslands). This subunit falls individuals in the Vail Lake/Oak Associated species include Adenostoma within the Conservation Area for the Mountain area. Additionally, we fasciculatum, Rhamnus crocea, Western Riverside County MSHCP, and interpret that reproduction has occurred Eriogonum fasciculatum, Rhus ovata, we are proposing to exclude the private at this site in the past based on the and Lonicera subspicata. Fine, sandy lands within this subunit from the final presence of several size (age) classes. soils are characteristic of the area designation of critical habitat for B. Berberis nevinii occupied this subunit at (CNDDB 2006), and soils are classified nevinii. Please see Relationship of the time of listing, as identified in the as Badland and San Timoteo loam, 8 to Critical Habitat to Approved Habitat final listing rule (63 FR 54956, October 15 percent slopes, eroded (PCE 2) Conservation Plans (HCPs)—Exclusion 13, 1998). (Service GIS data 2006). Under Section 4(b)(2) of the Act— The primary threats to Berberis We are proposing this subunit as nevinii habitat in this area that may critical habitat because it contains Western Riverside County Multiple require special management features essential to conservation of Species Habitat Conservation Plan for a considerations or protection of the PCEs Berberis nevinii, and it contains a detailed discussion. are the indirect effects of urban/ relatively large natural occurrence of the

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species (CNDDB 2006). This subunit habitat would remain functional (or CFR 402.10(d)). As noted above, any may be important for conserving B. retain the current ability for the primary conservation recommendations in a nevinii as it is one of several relatively constituent elements to be functionally conference report or opinion are strictly large occurrences in the Vail Lake area, established) to serve the intended advisory. and thus has a greater potential for conservation role for the species. If a species is listed or critical habitat regeneration by seed. Berberis nevinii Section 7(a) of the Act requires is designated, section 7(a)(2) of the Act occupied this subunit at the time of Federal agencies, including the Service, requires Federal agencies to ensure that listing, as identified in the final listing to evaluate their actions with respect to activities they authorize, fund, or carry rule (63 FR 54956, October 13, 1998). any species that is proposed or listed as out are not likely to jeopardize the The primary threats to Berberis endangered or threatened and with continued existence of such a species or nevinii habitat in this area that may respect to its critical habitat, if any is to destroy or adversely modify its require special management proposed or designated. Regulations critical habitat. If a Federal action may considerations or protection of the PCEs implementing this interagency affect a listed species or its critical are the indirect effects of urban/ cooperation provision of the Act are habitat, the responsible Federal agency residential development, such as codified at 50 CFR part 402. (action agency) must enter into increased human recreation; erosion; Section 7(a)(4) of the Act requires consultation with us. As a result of this incursion or spread of invasive, Federal agencies to confer with us on consultation, compliance with the nonnative plants; and changes to the any action that is likely to jeopardize requirements of section 7(a)(2) will be natural fire regime (i.e., increased the continued existence of a proposed documented through the Service’s ignitions and fire frequency and species or result in destruction or issuance of: (1) A concurrence letter for shortened fire return intervals) that can adverse modification of proposed Federal actions that may affect, but are lead to type conversion of shrublands to critical habitat. This is a procedural not likely to adversely affect, listed annual grasslands. requirement only. However, once a species or critical habitat; or (2) a This site falls within the Conservation proposed species becomes listed, or biological opinion for Federal actions Area for the Western Riverside County proposed critical habitat is designated that are likely to adversely affect listed MSHCP, and we are proposing to as final, the full prohibitions of section species or critical habitat. exclude the private lands within this 7(a)(2) apply to any Federal action. The When we issue a biological opinion subunit from the final designation of primary utility of the conference concluding that a project is likely to critical habitat for B. nevinii. Please see procedures is to maximize the result in jeopardy to a listed species or Relationship of Critical Habitat to opportunity for a Federal agency to the destruction or adverse modification Approved Habitat Conservation Plans adequately consider proposed species of critical habitat, we also provide (HCPs)—Exclusion Under Section and critical habitat and avoid potential reasonable and prudent alternatives to 4(b)(2) of the Act—Western Riverside delays in implementing their proposed the project, if any are identifiable. County Multiple Species Habitat action because of the section 7(a)(2) ‘‘Reasonable and prudent alternatives’’ Conservation Plan for a detailed compliance process, should those are defined at 50 CFR 402.02 as discussion. species be listed or the critical habitat alternative actions identified during designated. consultation that can be implemented in Effects of Critical Habitat Designation Under conference procedures, the a manner consistent with the intended Service may provide advisory Section 7 Consultation purpose of the action, that are consistent conservation recommendations to assist with the scope of the Federal agency’s Section 7 of the Act requires Federal the agency in eliminating conflicts that legal authority and jurisdiction, that are agencies, including the Service, to may be caused by the proposed action. economically and technologically ensure that actions they fund, authorize, The Service may conduct either feasible, and that the Director believes or carry out are not likely to destroy or informal or formal conferences. Informal would avoid jeopardy to the listed adversely modify critical habitat. In our conferences are typically used if the species or destruction or adverse regulations at 50 CFR 402.02, we define proposed action is not likely to have any modification of critical habitat. destruction or adverse modification as adverse effects to the proposed species Reasonable and prudent alternatives can ‘‘a direct or indirect alteration that or proposed critical habitat. Formal vary from slight project modifications to appreciably diminishes the value of conferences are typically used when the extensive redesign or relocation of the critical habitat for both the survival and Federal agency or the Service believes project. Costs associated with recovery of a listed species. Such the proposed action is likely to cause implementing a reasonable and prudent alterations include, but are not limited adverse effects to proposed species or alternative are similarly variable. to, alterations adversely modifying any critical habitat, inclusive of those that Regulations at 50 CFR 402.16 require of those physical or biological features may cause jeopardy or adverse Federal agencies to reinitiate that were the basis for determining the modification. consultation on previously reviewed habitat to be critical.’’ However, recent The results of an informal conference actions in instances where a new decisions by the 5th and 9th Circuit are typically transmitted in a conference species is listed or critical habitat is Court of Appeals have invalidated this report while the results of a formal subsequently designated that may be definition (see Gifford Pinchot Task conference are typically transmitted in a affected and the Federal agency has Force v. U.S. Fish and Wildlife Service, conference opinion. Conference retained discretionary involvement or 378 F.3d 1059 (9th Cir 2004) and Sierra opinions on proposed critical habitat are control over the action or such Club v. U.S. Fish and Wildlife Service et typically prepared according to 50 CFR discretionary involvement or control is al., 245 F.3d 434, 442F (5th Cir 2001)). 402.14, as if the proposed critical authorized by law. Consequently, some Pursuant to current national policy and habitat were designated. We may adopt Federal agencies may request the statutory provisions of the Act, the conference opinion as the biological reinitiation of consultation with us on destruction or adverse modification is opinion when the critical habitat is actions for which formal consultation determined on the basis of whether, designated, if no substantial new has been completed, if those actions with implementation of the proposed information or changes in the action may affect subsequently listed species Federal action, the affected critical alter the content of the opinion (see 50 or designated critical habitat or

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adversely modify or destroy proposed species. Generally, the conservation role ground-disturbing activities, such as critical habitat. of Berberis nevinii critical habitat units road maintenance, improvement, or Federal activities that may affect is to support viable core area construction projects. These activities Berberis nevinii or its designated critical populations. could reduce the ability of Berberis habitat will require section 7 Section 4(b)(8) of the Act requires us nevinii to grow and reproduce because consultation under the Act. Activities to briefly evaluate and describe in any nonnative plant species may crowd out on State, Tribal, local, or private lands proposed or final regulation that or otherwise compete with B. nevinii. requiring a Federal permit (such as a designates critical habitat those Additionally, an increase in nonnative permit from the Army Corps of activities involving a Federal action that plants could change the fire regime by Engineers under section 404 of the may destroy or adversely modify such creating conditions prone to frequent Clean Water Act or a permit under habitat, or that may be affected by such fire (e.g., increased fuel loads and section 10(a)(1)(B) of the Act from the designation. Activities that may destroy continuous fuel beds) and by altering Service) or involving some other Federal or adversely modify critical habitat may soil composition. action (such as funding from the Federal also jeopardize the continued existence All lands proposed as critical habitat Highway Administration, Federal of the species. for Berberis nevinii, including those that Aviation Administration, or the Federal Activities that may destroy or have been proposed for exclusion from Emergency Management Agency) will adversely modify critical habitat are the final designation, contain features also be subject to the section 7 those that alter the PCEs to an extent essential to conservation of the species. consultation process. Federal actions that the conservation value of critical All of the subunits proposed for not affecting listed species or critical habitat for Berberis nevinii is designation are within the geographical habitat, and actions on State, Tribal, appreciably reduced. Activities that, range of the species, were known to be local, or private lands that are not when carried out, funded, or authorized occupied at the time of listing, and are federally funded, authorized, or by a Federal agency, may affect critical currently occupied by B. nevinii. permitted, do not require section 7 habitat and therefore should result in Federal agencies already consult with us consultations. consultation for B. nevinii include, but on activities in areas occupied by B. are not limited to: nevinii, and if the species may be Application of the Jeopardy and (1) Activities that would directly or affected by the action, to ensure that Adverse Modification Standards for indirectly impact Berberis nevinii their actions do not jeopardize the Actions Involving Effects to Berberis habitat and its PCEs. Such activities continued existence of B. nevinii. nevinii and Its Critical Habitat could include, but are not limited to: Residential or commercial development; Exclusions Under Section 4(b)(2) of the Jeopardy Standard fire prevention and suppression Act The Service applies an analytical activities, such as the creation of There are multiple ways to provide framework for Berberis nevinii jeopardy firebreaks and brush clearing or protection and management for species’ analyses that relies heavily on the thinning; off-road vehicle use; heavy habitat. Statutory and regulatory importance of core area populations to recreational use; placement of frameworks that exist at a local level can the survival and recovery of B. nevinii. recreational trailheads and facilities; provide such protection and The section 7(a)(2) analysis is focused road development, maintenance, or management, as can lack of pressure for not only on these populations but also improvement projects, such as road change, such as areas too remote for on the habitat conditions necessary to grading, widening, or realignment; and anthropogenic disturbance. Finally, support them. flood control projects, such as State, local, or private management The jeopardy analysis usually vegetation stripping. These activities plans as well as management under expresses the survival and recovery could change the physical and Federal agencies’ jurisdictions can needs of Berberis nevinii in a qualitative biological features of the habitat by provide protection and management fashion without making distinctions affecting the topography of the site; by that may lessen or even eliminate any between what is necessary for survival physically removing or damaging soils appreciable benefit to a designation of and what is necessary for recovery. and associated vegetation; by altering critical habitat. When we consider a Generally, if a proposed Federal action the natural hydrology of the area; and by plan to determine its adequacy in is incompatible with the viability of the introducing and facilitating the spread protecting habitat, we consider whether affected core area population(s), of invasive, nonnative plant species. the plan, as a whole will provide the inclusive of associated habitat (2) Activities that would alter fire same level of protection that designation conditions, a jeopardy finding is frequency in areas occupied by Berberis of critical habitat would provide. The considered to be warranted, because of nevinii. Such activities could include, plan need not lead to exactly the same the relationship of each core area but are not limited to, prescribed burns result as a designation in every population to the survival and recovery that are too frequent or poorly timed. individual application, as long as the of the species as a whole. These activities could reduce the ability protection it provides is equivalent, of B. nevinii to grow and reproduce by overall. In making this determination, Adverse Modification Standard altering soil and vegetation community we examine whether the plan provides For the reasons described in the structure and composition (e.g., type management, protection, or Director’s December 9, 2004 conversion of shrublands into enhancement of the PCEs that is at least memorandum, the key factor related to grasslands). equivalent to that provided by a critical the adverse modification determination (3) Activities that would foster the habitat designation, and whether there is whether, with implementation of the introduction or spread of nonnative is a reasonable expectation that the proposed Federal action, the affected vegetation. These activities could management, protection, or critical habitat would remain functional include, but are not limited to: Seeding enhancement actions will continue into (or retain the current ability for the areas with nonnative species following the foreseeable future. Each review is primary constituent elements to be a fire; planting nonnative species or particular to the species and the plan, functionally established) to serve the using non-weed free hay straw for slope, and some plans may be adequate for intended conservation role for the bank, and soil erosion control; and some species and inadequate for others.

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Section 4(b)(2) of the Act states that lands (90 to 100 percent of their known According to some researchers, the critical habitat shall be designated and occurrences restricted to Federal lands) designation of critical habitat on private revised on the basis of the best available and that 50 percent of federally listed lands significantly reduces the scientific data after taking into species are not known to occur on likelihood that landowners will support consideration the economic impact, Federal lands at all. and carry out conservation actions national security impact, and any other Given the distribution of listed (Main et al. 1999; Bean 2002; Brook et relevant impact of specifying any species with respect to land ownership, al. 2003). The magnitude of this particular area as critical habitat. The conservation of listed species in many negative outcome is greatly amplified in Secretary may exclude an area from parts of the United States is dependent situations where active management critical habitat if he determines that the upon working partnerships with a wide measures (such as reintroduction, fire benefits of such exclusion outweigh the variety of entities and the voluntary management, control of invasive benefits of specifying such area as part cooperation of many non-Federal species) are necessary for species of the critical habitat, unless he landowners (Wilcove and Chen 1998, conservation (Bean 2002). The Service determines, based on the best scientific Crouse et al. 2002, James 2002). believes that the judicious use of data available, that the failure to Building partnerships and promoting excluding specific areas of non-federally designate such area as critical habitat voluntary cooperation of landowners is owned lands from critical habitat will result in the extinction of the essential to understanding the status of designations can contribute to species species. In making that determination, species on non-Federal lands and is recovery and provide a superior level of the Congressional record is clear that necessary to implement recovery actions conservation than critical habitat alone. the Secretary is afforded broad such as reintroducing listed species, The Department of the Interior’s discretion regarding which factor(s) to habitat restoration, and habitat cooperative conservation policy is the use and how much weight to give to any protection. foundation for developing the tools of factor. Many non-Federal landowners derive conservation. These tools include Under section 4(b)(2) of the Act, in satisfaction in contributing to conservation grants, funding for considering whether to exclude a endangered species recovery. The Partners for Fish and Wildlife Program, particular area from the designation, we Service promotes these private-sector the Coastal Program, and cooperative- must identify the benefits of including efforts through cooperative conservation challenge cost-share the area in the designation, identify the conservation. This is evident in Service grants. Our Private Stewardship Grant benefits of excluding the area from the programs such as HCPs, Safe Harbors program and Landowner Incentive designation, and determine whether the Agreements, Candidate Conservation Program provide assistance to private benefits of exclusion outweigh the Agreements, Candidate Conservation land owners in their voluntary efforts to benefits of inclusion. If an exclusion is Agreements with Assurances, and protect threatened, imperiled, and contemplated, then we must determine conservation challenge cost-share. Many endangered species, including the whether excluding the area would result private landowners, however, are wary development and implementation of in the extinction of the species. In the of the possible consequences of Habitat Conservation Plans. following sections, we address a number encouraging endangered species to their Conservation agreements with non- of general issues that are relevant to the property, and there is mounting Federal landowners (e.g., HCPs, exclusions we considered. In addition, evidence that some regulatory actions contractual conservation agreements, the Service is conducting an economic by the Federal government, while well- easements, and stakeholder-negotiated analysis of the impacts of the proposed intentioned and required by law, can State regulations) enhance species critical habitat designation and related under certain circumstances have conservation by extending species factors, which will be available for unintended negative consequences for protections beyond those available public review and comment. Based on the conservation of species on private through section 7(a)(2) consultations. In public comment on that document, the lands (Wilcove et al. 1996; Bean 2002; the past decade, we have encouraged proposed designation itself, and the Conner and Mathews 2002; James 2002; non-Federal landowners to enter into information in the final economic Koch 2002; Brook et al. 2003). Many conservation agreements, based on a analysis, additional areas beyond those landowners fear a decline in their view that we can achieve greater species identified in this assessment may be property value due to real or perceived conservation on non-Federal land excluded from critical habitat by the restrictions on land-use options where through such partnerships than we can Secretary under the provisions of threatened or endangered species are through coercive methods (61 FR 63854; section 4(b)(2) of the Act. This is found. Consequently, harboring December 2, 1996). provided for in the Act, and in our endangered species is viewed by many Exclusions Under Section 4(b)(2) of the implementing regulations at 50 CFR landowners as a liability, resulting in Act for Berberis nevinii 242.19. anti-conservation incentives because maintaining habitats that harbor After consideration under section Conservation Partnerships on Non- endangered species represents a risk to 4(b)(2) of the Act, we are proposing to Federal Lands future economic opportunities (Main et exclude the following areas from critical Most federally listed species in the al. 1999; Brook et al. 2003). habitat for Berberis nevinii: private United States will not recover without The purpose of designating critical lands covered by the Western Riverside the cooperation of non-Federal habitat is to contribute to the County MSHCP, which includes five ac landowners. More than 60 percent of the conservation of threatened and (2 ha) of the Agua Tibia Mountain United States is privately owned endangered species and the ecosystems Foothills subunit (1B), and all of the (National Wilderness Institute 1995) and upon which they depend. The outcome South Flank Big Oak Mountain subunit at least 80 percent of endangered or of the designation, triggering regulatory (1C) (87 ac (35 ha)), North of Vail Lake threatened species occur either partially requirements for actions funded, subunit (1D) (22 ac (9ha)), South of Vail or solely on private lands (Crouse et al. authorized, or carried out by Federal Lake/Peninsula subunit (1E) (251 ac 2002). Stein et al. (1995) found that only agencies under section 7 of the Act, can (102 ha)), and Temecula Creek East about 12 percent of listed species were sometimes be counterproductive to its subunit (1F) (20 ac (8ha)). We believe found almost exclusively on Federal intended purpose on non-Federal lands. that: (1) The private lands’ value for

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conservation is preserved by existing between the Service, USFS Cleveland could directly and indirectly affect B. protective action, or (2) it is appropriate National Forest, and CDFG for a nevinii and its PCEs. for exclusion pursuant to the ‘‘other Conservation Strategy for Coastal Sage Overall, the Forest Plans provides relevant factor’’ provisions of section Scrub and Interdigitated Habitats general guidance on management of 4(b)(2) of the Act. We specifically solicit (Strategy) (USDA, USDI, CDFG 1997). lands within the Cleveland National comment, however, on the inclusion or These agencies agreed to work Forest. However, like the MOU exclusion of such areas. A detailed cooperatively to protect and preserve mentioned previously, it does not make analysis of our exclusion of these lands coastal sage scrub and interdigitated any decisions regarding USFS site- under section 4(b)(2) of the Act is sensitive habitats and their associated specific project proposals for provided below; starting with General species on the Cleveland National implementation of the land resource Principles of Section 7 Consultations Forest and contiguous lands. Specific management plan, nor does it compel Used in the 4(b)(2) Balancing Process. actions under the Strategy included, but managers to implement any specific We evaluated existing management were not limited to: developing activity. Thus, we have not identified plans relevant to Federal lands standards and guidelines which provide any benefits of exclusion for USFS lands occurring within the boundaries of management that compliments within Subunit 1B and are not proposed critical habitat for Berberis surrounding habitat preserves; proposing to exclude these lands under nevinii (i.e., Subunit 1A and part of section 4(b)(2) of the Act. Subunit 1B). While Federal lands within establishing landscape-scale fire management objectives to guide fire and We also evaluated the existing BLM subunits 1A and 1B fall within the land management plan that covers BLM Conservation Area for the Western vegetation management activities; and conferring with the Service and CDFG parcels on Big Oak Mountain (Subunit Riverside County MSHCP, neither of the 1A). Direction for management of these Federal land management agencies regarding land exchange and acquisition proposals (USDA, USDI, CDFG 1997, parcels is provided in the South Coast (USFS and BLM) is obligated to manage Resource Management Plan (RMP) for these lands in compliance with the pp. 4–5). Berberis nevinii is recognized as a species associated with coastal sage the California Desert District, Palm MSHCP. Therefore, we have not Springs South Coast Resource Area identified any benefits of exclusion for scrub and chaparral communities in the (BLM 1994). The goal of the RMP is to USFS or BLM managed lands within geographic area covered by this MOU. guide future management of Unit 1 (Subunit 1A and part of Subunit However, the MOU does not make any approximately 296,000 acres of BLM- 1B) and are not proposing to exclude decisions regarding site-specific project administered public lands within the these lands under section 4(b)(2) of the proposals that may be implemented by South Coast Resource Area of southern Act. any of the signatories to the MOU, nor We also evaluated the USFS land does it compel managers to implement California over the next 15 years (BLM management plan for the Cleveland any specific activity. 1994, pp. 1, 8). The RMP addresses five planning issues, one of which is related National Forest and other relevant The USFS recently completed Revised documents (i.e., USFS species to threatened, endangered, and other Land and Resource Management Plans sensitive species. The geographic area management guide for Berberis nevinii for the Cleveland, Angeles, and two and relevant MOUs) for potential covered by this RMP is divided into four other National Forests in southern Management Areas, with Oak Mountain exclusion under section 4(b)(2) of the California (Forest Plans) (USDA 2005). Act. The USFS and Rancho Santa Ana falling within the Riverside San The goal of the Forest Plans is to Bernardino County Management Area. Botanic Garden (Claremont, California) describe a strategic direction for the developed a species management guide The RMP directs management of the management of the National Forests for B. nevinii for the Angeles National Oak Mountain parcels for sensitive over the next 10 to 15 years. The Forest Forest (Guide) (Mistretta and Brown plant and wildlife species by acquiring Plans also divide the National Forests 1989). The Guide provides management and consolidating sensitive plant into several ‘‘Land Use Zones.’’ The direction to the USFS for protecting the habitat. These parcels (totaling 888 species while minimizing conflicts with Land Use Zones were designed to acres) are closed to motorized vehicles other resource values and recommends describe the type of public use or and livestock grazing (BLM 1994, p. 28). specific actions, such as developing and administrative activities allowable in While the RMP provides overall implementing site-specific monitoring certain areas. The Land Use Zone where direction to the BLM for managing plans and surveying potential habitat for Berberis nevinii occurs on the Cleveland sensitive species and their habitat on additional occurrences of B. nevinii National Forest is classified as BLM-administered land in the Oak (Mistretta and Brown 1989). However, Developed Area Interface, which Mountain area, it does not make any this management guide was written for typically has a higher level of human decisions regarding BLM site-specific the Angeles National Forest, and thus use and infrastructure than that found project proposals for implementation of does not provide specific guidance or in other Land Use Zones. As such, the the land management plan, nor does it recommendations for the B. nevinii USFS considers this B. nevinii compel managers to implement any occurrence on the Cleveland National occurrence to be less protected than the specific activity. Overall, the RMP Forest, which is included in this San Francisquito Canyon occurrence on provides general guidance that can proposed critical habitat designation the Angeles National Forest (USFS either benefit or remain neutral to (Subunit 1B). On the other hand, a 2005, p. 238). No new permanent loss of sensitive species. Additionally, the monitoring program was initiated in B. nevinii occupied habitat is expected biological opinions that the Service 1991 on the Angeles National Forest under the Forest Plans with the issued on August 31, 1992, and (Soza and Boyd 2000, p. 1), and the potential exception of areas within the November 22, 1993, for the preferred Angeles National Forest continues to WUI Defense Zone, which overlaps alternative of the South Coast RMP did utilize recommendations in the Guide about 40 percent of occupied B. nevinii not take into account effects to Berberis when planning projects and managing habitat in the Cleveland National Forest nevinii, which had not been federally ongoing activities (USFS 2005, p. 232). (USFS 2005, p. 237; Service 2005, p. listed yet. Thus, we have not identified In 1997, a Memorandum of 128). Thus, fire and fuels management any benefits of exclusion for BLM lands Understanding (MOU) was signed within or near the WUI defense zones within Subunit 1A and are not

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proposing to exclude these lands under jeopardy or adverse modification other educational effects. For example, section 4(b)(2) of the Act. conclusion. HCPs have significant public input and We also note that for 30 years prior to may largely duplicate the educational General Principles of Section 7 the Ninth Circuit Court’s decision in benefit of a critical habitat designation. Consultations Used in the 4(b)(2) Gifford Pinchot Task Force v. U.S. Fish This benefit is closely related to a Balancing Process and Wildlife Service, 378 F.3d 1059 (9th second, more indirect benefit: that The most direct, and potentially Cir 2004) (hereinafter Gifford Pinchot), designation of critical habitat would largest, regulatory benefit of critical the Service conflated the jeopardy inform State agencies and local habitat is that federally authorized, standard with the standard for governments about areas that could be funded, or carried out activities require destruction or adverse modification of conserved under State laws or local consultation pursuant to section 7(a)(2) critical habitat when evaluating federal ordinances. of the Act to ensure that they are not actions that affect currently-occupied However, we believe that there would likely to destroy or adversely modify critical habitat. The Court ruled that the be little additional informational benefit critical habitat. There are two two standards are distinct and that gained from the designation of critical limitations to this regulatory effect. adverse modification evaluations habitat for the exclusions we are First, it only applies where there is a require consideration of impacts on the proposing in this rule because these Federal nexus—if there is no Federal recovery of species. Thus, under the areas are included in this proposed rule nexus, designation itself does not Gifford Pinchot decision, critical habitat as having habitat containing the features restrict actions that destroy or adversely designations may provide greater essential to the conservation of the modify critical habitat. Second, it only benefits to the recovery of a species. species. Consequently, we believe that limits destruction or adverse However, we believe the conservation the informational benefits are already modification. By its nature, the achieved through implementing habitat provided. Additionally, the purpose prohibition on adverse modification is conservation plans (HCPs) or other normally served by the designation, that designed to ensure those areas that habitat management plans is typically of informing State agencies and local contain the physical and biological greater than would be achieved through governments about areas that would features essential to the conservation of multiple site-by-site, project-by-project, benefit from protection and the species or unoccupied areas that are section 7(a)(2) consultations involving enhancement of habitat for Berberis essential to the conservation of the consideration of critical habitat. nevinii, is already well established species are not eroded. Critical habitat Management plans commit resources to among State and local governments and designation alone, however, does not implement long-term management and Federal agencies in those areas that we require specific steps toward recovery. protection to particular habitat for at proposing to exclude from critical least one and possibly other listed or habitat in this rule on the basis of other Once consultation under section sensitive species. Section 7(a)(2) existing habitat management 7(a)(2) of the Act is triggered, the consultations only commit Federal protections. process may conclude informally when agencies to prevent adverse The information provided in this the Service concurs in writing that the modification to critical habitat caused section applies to all the discussions proposed Federal action is not likely to by the particular project, and they are below that discuss the benefits of adversely affect the listed species or its not committed to provide conservation inclusion and exclusion of critical critical habitat. However, if the Service or long-term benefits to areas not habitat. determines through informal affected by the proposed project. Thus, Benefits of Excluding Lands With HCPs consultation that adverse impacts are any HCP or management plan which likely to occur, then formal consultation or Other Approved Management Plans considers enhancement or recovery as From Critical Habitat would be initiated. Formal consultation the management standard will often concludes with a biological opinion provide as much or more benefit than a The benefits of excluding lands with issued by the Service on whether the consultation for critical habitat HCPs or other approved management proposed Federal action is likely to designation conducted under the plans from critical habitat designation jeopardize the continued existence of a standards required by the Ninth Circuit include relieving landowners, listed species or result in destruction or in the Gifford Pinchot decision. communities, and counties of any adverse modification of critical habitat, The information provided in this additional regulatory burden that might with separate analyses being made section applies to all the discussions be imposed by a critical habitat under both the jeopardy and the adverse below that discuss the benefits of designation. Most HCPs and other modification standards. For critical inclusion and exclusion of critical conservation plans take many years to habitat, a biological opinion that habitat in that it provides the framework develop, and upon completion are concludes in a determination of no for the consultation process. consistent with the recovery objectives destruction or adverse modification may for listed species that are covered within contain discretionary conservation Educational Benefits of Critical Habitat the plan area. Many conservation plans recommendations to minimize adverse A benefit of including lands in critical also provide conservation benefits to effects to primary constituent elements, habitat is that the designation of critical unlisted sensitive species. Imposing an but it would not contain any mandatory habitat serves to educate landowners, additional regulatory review as a result reasonable and prudent measures or State and local governments, and the of the designation of critical habitat may terms and conditions. Mandatory public regarding the potential undermine these conservation efforts measures and terms and conditions to conservation value of an area. This and partnerships designed to implement such measures are only helps focus and promote conservation proactively protect species to ensure specified when the proposed action efforts by other parties by clearly that listing under the Act will not be would result in the incidental take of a delineating areas of high conservation necessary. Designation of critical habitat listed animal species. Reasonable and value for Berberis nevinii. In general the within the boundaries of management prudent alternatives to the proposed educational benefit of a critical habitat plans that provide conservation Federal action would only be suggested designation always exists, although in measures for a species could be viewed when the biological opinion results in a some cases it may be redundant with as a disincentive to those entities

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currently developing these plans or inclusion and exclusion of critical new conservation lands (Additional contemplating them in the future, habitat. Reserve Lands) to complement the because one of the incentives for approximate 347,000 ac (140,426 ha) of Relationship of Critical Habitat to undertaking conservation is greater ease existing natural and open space areas Approved Habitat Conservation Plans of permitting where listed species are (e.g., State Parks, USFS, and County (HCPs)—Exclusion Under Section affected. Addition of a new regulatory Park lands known as Public/Quasi- 4(b)(2) of the Act requirement would remove a significant Public (PQP) Lands) in forming the incentive for undertaking the time and Western Riverside County Multiple MSHCP Conservation Area. The expense of management planning. In Species Habitat Conservation Plan location and configuration of the fact, designating critical habitat in areas (MSHCP) 153,000 ac (61,916 ha) Additional covered by a pending HCP or We consider a current plan to provide Reserve Lands is not mapped or conservation plan could result in the adequate management or protection if it precisely identified in the MSHCP, but rather is based on textual descriptions loss of some conservation benefits to the meets three criteria: (1) The plan is and will be chosen from within a species if participants abandon the complete and provides the same or 310,000-ac (125,453 ha) Criteria Area planning process, in part because of the better level of protection from adverse that will be interpreted as strength of the perceived additional modification or destruction than that implementation of the MSHCP regulatory compliance that such provided through a consultation under proceeds. The defined Criteria Area is designation would entail. The time and section 7 of the Act; (2) there is a divided into cells of approximately 160 cost of regulatory compliance for a reasonable expectation that the ac each, and each cell or group of cells critical habitat designation do not have conservation management strategies and has specific conservation criteria to be quantified for them to be perceived actions will be implemented based on associated with it (MSHCP Section as additional Federal regulatory burden past practices, written guidance, or sufficient to discourage continued 3.2.3). For Berberis nevinii, critical regulations; and (3) the plan provides habitat subunits 1A through 1F within participation in plans targeting listed conservation strategies and measures species’ conservation. the Agua Tibia/Vail Lake unit are consistent with currently accepted located entirely within the MSHCP Plan A related benefit of excluding lands principles of conservation biology. We within management plans from critical Area and are comprised of USFS, BLM, believe that the Western Riverside and private lands. habitat designation is the unhindered, County MSHCP fulfills these criteria, continued ability to seek new The private lands within proposed and we are considering the exclusion of critical habitat for Berberis nevinii are partnerships with future plan non-federal lands covered by this plan participants including States, counties, within the Criteria Area and are targeted that provide for the conservation of for inclusion within the MSHCP local jurisdictions, conservation Berberis nevinii. Conservation Area as potential organizations, and private landowners, The Western Riverside County Additional Reserve Lands. Specific which together can implement MSHCP is a large-scale, multi- conservation objectives in the MSHCP conservation actions that we would be jurisdictional habitat conservation plan for Berberis nevinii provide for unable to accomplish otherwise. If lands (HCP) that addresses 146 listed and conservation and management of at least within approved management plan unlisted ‘‘Covered Species,’’ including 8,000 ac (3,238 ha) of suitable habitat areas are designated as critical habitat, Berberis nevinii, within the 1.26-million (defined as chaparral and Riversidean it would likely have a negative effect on ac (510,000 ha) Plan Area in western alluvial fan sage scrub between 984 and our ability to establish new partnerships Riverside County. Participants in the 2,162 ft (300 and 659 m) in elevation) to develop these plans, particularly MSHCP include 14 cities in western in the Vail Lake area and all known plans that address landscape-level Riverside County; the County of locations for B. nevinii in the Vail Lake conservation of species and habitats. By Riverside, including the Riverside area. The Soboba Badlands occurrence preemptively excluding these lands, we County Flood Control and Water is also located within proposed preserve our current partnerships and Conservation Agency, Riverside County Additional Reserve Lands. Additionally, encourage additional conservation Transportation Commission, Riverside the MSHCP requires surveys for B. actions in the future. County Parks and Open Space District, nevinii as part of the project review Furthermore, an HCP or NCCP/HCP and Riverside County Waste process for public and private projects application must itself be consulted Department; California Department of where suitable habitat is present within upon, even without the critical habitat Parks and Recreation; and the California a defined boundary of the Criteria Area designation. Such a consultation would Department of Transportation (Caltrans). (see Criteria Area Species Survey Area review the effects of all activities The MSHCP was designed to establish Map, Figure 6–2 of the MSHCP, Volume covered by the HCP that might a multi-species conservation program I). For locations with positive survey adversely impact the species under a that minimizes and mitigates the results, 90 percent of those portions of jeopardy standard, including possibly expected loss of habitat and the the property that provide long-term significant habitat modification (see incidental take of Covered Species. On conservation value for the species will definition of ‘‘harm’’ at 50 CFR 17.3). In June 22, 2004, the Service issued a be avoided until it is demonstrated that addition, Federal actions not covered by single incidental take permit under the conservation objectives for the the HCP in areas occupied by listed section 10(a)(1)(B) of the Act to 22 species are met. species would still require consultation Permittees under the MSHCP for a As discussed in the Background under section 7(a)(2) of the Act and period of 75 years. The Service granted section of this rule, we were unable to would be reviewed for possibly the participating jurisdictions ‘‘take accurately quantify the exact number of significant habitat modification in authorization’’ of listed species in Berberis nevinii occurrences or plants accordance with the definition of harm exchange for their contribution to the within the MSHCP Plan Area. referenced above. assembly and management of the Nevertheless, all of these occurrences The information provided in this MSHCP Conservation Area. except those identified below are section applies to all the discussions The MSHCP will establish located within either existing PQP lands below that discuss the benefits of approximately 153,000 ac (61,916 ha) of or proposed Additional Reserve Lands.

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Two records near Temecula are outside Benefits of Inclusion survey efforts that are subsequently of existing PQP Lands and the proposed We believe there is minimal benefit determined to be important to the Additional Reserve Lands and may be from designating critical habitat for overall conservation of the species may impacted; however, these occurrences Berberis nevinii on private lands in Unit be included in the Additional Reserve are likely extirpated. Another 1 (subunits 1B, 1C, 1D, 1E, and 1F) Lands. We anticipate that these occurrence in the Temecula area needs because the habitat essential for this conservation measures will exceed any to be verified, but may also be impacted. species in the vicinity of Vail Lake and conservation value provided as a result The goal of the MSHCP is to conserve Oak Mountain in western Riverside of regulatory protections that may be all known locations of B. nevinii in the County is targeted for conservation afforded through a critical habitat Agua Tibia/Vail Lake area and the under the Western Riverside County designation. Another potential benefit of critical Soboba Badlands. Additionally, new MSHCP as explained above. occurrences that are found as a result of The primary benefit of including an habitat would be to signal the importance of these lands to Federal survey efforts and are subsequently area within a critical habitat designation agencies, scientific organizations, State determined to be important to the is the protection provided by section and local governments, and the public overall conservation of the species may 7(a)(2) of the Act which directs Federal to encourage conservation efforts to be included in the Additional Reserve agencies to ensure that their actions do benefit Berberis nevinii and its habitat. Lands. Although the specific location of not result in the destruction or adverse However, as discussed above, the individual target areas for this species modification of critical habitat. The importance of protecting the biological has yet to be identified, we agree that protections provided by section 7(a)(2) resource values of these lands, conservation of known occurrences of apply to actions on private lands this plant in the Agua Tibia/Vail Lake including B. nevinii, has already been whenever there is a Federal nexus, such area (which includes Oak Mountain) clearly and effectively communicated to as the use of Federal funds or the need through the survey requirements, Federal, State, and local agencies and for a Federal permit to conduct a avoidance and minimization measures, other interested organizations and project. The designation of critical and management for B. nevinii (and its members of the public through this habitat may provide a different level of PCEs) provided for in the Western proposed rule and the Western protection under section 7(a)(2) for Riverside County MSHCP exceeds any Riverside County MSHCP approval and Berberis nevinii separate from the conservation value provided as a result implementation process. obligation of a Federal agency to ensure of regulatory protections that may be In short, we expect the Western that their actions are not likely to afforded through a critical habitat Riverside County MSHCP to provide designation. jeopardize the continued existence of enhanced protection and management We propose to exclude approximately the endangered species. Under the of Berberis nevinii and its PCEs within 385 ac (156 ha) of non-Federal lands Gifford Pinchot decision, critical habitat areas considered essential for from the final critical habitat designations may provide greater conservation of the species on private designation for Berberis nevinii under benefits to the recovery of a species than lands in the vicinity of Vail Lake and section 4(b)(2) of the Act. These non- was previously believed, but it is not Oak Mountain. We expect the MSHCP Federal lands fall within the MSHCP possible to quantify this benefit at to provide a greater level of Plan Area and include: approximately 5 present. However, the protection conservation for B. nevinii on private ac (2 ha) of private lands near the provided is still a limitation on the lands in this area than would foothills of the Agua Tibia Mountains adverse effects that occur as opposed to designation of critical habitat. a requirement to provide a conservation north of Cleveland National Forest (part Benefits of Exclusion of Subunit 1B); approximately 87 ac (35 benefit. ha) of private lands on the south flank The inclusion of these 385 ac (156 ha) In contrast to section 7(a)(2) of the of Big Oak Mountain (Subunit 1C); of private land in the proposed critical Act, the Western Riverside County approximately 22 ac (9 ha) of private habitat designation for Berberis nevinii MSHCP commits the permittees to land directly north of Vail Lake is unlikely to provide any additional manage private lands in western (Subunit 1D); approximately 251 ac (102 Federal regulatory benefits for the Riverside County, California, for the ha) of private land to the south of Vail species consistent with the conservation benefit of Berberis nevinii and other Lake and on the Vail Lake peninsula, standard based on the Ninth Circuit covered species. These commitments go which is the area with the largest known Court’s decision in Gifford Pinchot. well beyond a simple requirement for occurrence of B. nevinii (Subunit 1E); Inclusion of this area in critical habitat Federal agencies to avoid adverse and approximately 20 ac (8 ha) of would require Federal agencies to modification of critical habitat by private land north of Temecula Creek ensure that their actions on these lands including conservation and and southeast of Vail Lake (Subunit 1F). are not likely to result in the destruction management of at least 8,000 ac (3,238 All of these lands are also within the or adverse modification of critical ha) of suitable B. nevinii habitat in the MSHCP’s Conservation Area and the habitat. The potential benefits resulting vicinity of Vail Lake and Oak Mountain, MSHCP’s Survey Area and will receive from this additional analysis to and all known locations of the species conservation benefits under the determine destruction or adverse in this area. Excluding the 385 ac (156 Additional Survey Needs and modification of critical habitat are likely ha) of private land in subunits 1B Procedures policy. to be minimal to nonexistent because through 1F from critical habitat The Federal lands within Subunit 1A known locations of this plant in the designation would recognize the (BLM-managed) and Subunit 1B (USFS vicinity of Vail Lake and Oak Mountain permittees’ commitment under the managed) are considered PQP lands will be conserved through the survey MSHCP to manage non-Federal lands in under the MSHCP and as such are requirements, avoidance and western Riverside County consistent included within the overall 500,000-ac minimization measures, and with the conservation goals and (202,343 ha) MSHCP Conservation Area. management of B. nevinii (and its PCEs) objectives of the MSHCP. It would also However, as explained in detail above, provided for in the Western Riverside provide additional incentive to the we are not proposing to exclude BLM or County MSHCP. Additionally, new permittees to maintain and strengthen USFS lands within subunits 1A and 1B. occurrences documented through the partnerships created by their official

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participation in the MSHCP planning accomplished from materials provided Peer Review process, especially considering the high on our Web site. Furthermore, many of In accordance with our joint policy level of cooperation by the participants the educational benefits of critical published in the Federal Register on in the MSHCP to conserve this taxon. habitat designation would be achieved July 1, 1994 (59 FR 34270), we will seek Benefits of Exclusion Outweigh the through the overall designation, notice, the expert opinions of at least three Benefits of Inclusion and public comment process, and appropriate and independent specialists would occur whether or not these regarding this proposed rule. The We have reviewed and evaluated the particular subunits are designated. proposed exclusion of approximately purpose of such review is to ensure that 385 ac (156 ha) of non-Federal lands Exclusion Would Not Result in our critical habitat designation is based within the MSHCP Plan Area from the Extinction of the Species on scientifically sound data, final designation of critical habitat, and assumptions, and analyses. We will we have determined that the benefits of We do not believe that the exclusion send to these peer reviewers copies of excluding the non-Federal lands in Unit of 385 ac (156 ha) from the final this proposed rule immediately 1 outweigh the benefits of including designation of critical habitat for following publication in the Federal these lands. The PCEs required by Berberis nevinii would result in the Register. We will invite these peer Berberis nevinii will benefit from the extinction of the species because the reviewers to comment, during the conservation measures outlined in the Western Riverside County MSHCP public comment period, on the specific MSHCP. In summary, these provides for the conservation of this assumptions and conclusions regarding conservation measures include species and its PCEs on occupied areas the proposed designation of critical protecting and managing important in the Agua Tibia/Vail Lake area habitat. habitat containing PCEs within the (including Oak Mountain), as well as We will consider all comments and MSHCP Conservation Area, primarily areas discovered to be occupied by B. information received during the through the protection of habitat from nevinii during surveys of suitable comment period on this proposed rule surface-disturbing activities; habitat within a defined boundary of the during preparation of a final implementing specific management and Criteria Area. Importantly, as we stated rulemaking. Accordingly, the final monitoring practices to help ensure in our biological opinion for the MSHCP decision may differ from this proposal. conservation of B. nevinii in the Plan (Service 2004), while some loss of Public Hearings Area; maintaining physiological and modeled habitat for B. nevinii is ecological characteristics of occupied anticipated due to implementation of The Act provides for one or more habitat and suitable areas not known to the MSHCP, implementation of the plan public hearings on this proposal, if be occupied (e.g., managing flood will not jeopardize the continued requested. Requests for public hearings control activities, nonnative species, existence of this species. must be made in writing at least 15 days and other activities so as to limit prior to the close of the public comment The jeopardy standard of section 7 period. We will schedule public alterations to the natural hydrologic and and routine implementation of fire regime); and conducting surveys hearings on this proposal, if any are conservation measures through the requested, and announce the dates, and implementing other required section 7 process will also provide procedures to ensure avoidance of times, and places of those hearings in assurances that the species will not go the Federal Register and local impacts to at least 90 percent of suitable extinct. The proposed exclusion of habitat areas determined important to newspapers at least 15 days prior to the critical habitat leaves these protections the long-term conservation of B. nevinii first hearing. unchanged from those that would exist within the Criteria Area. The specific if the proposed excluded areas were Clarity of the Rule areas identified as subunits 1C, 1D, 1E, designated as critical habitat. and 1F, as well as the non-Federal lands Executive Order 12866 (Regulatory identified within Subunit 1B, will be Economic Analysis Planning and Review) requires each addressed under the MSHCP. These agency to write regulations and notices specific conservation actions, survey An analysis of the economic impacts that are easy to understand. We invite requirements, avoidance and of proposing critical habitat for Berberis your comments on how to make this minimization measures, and nevinii is being prepared. We will proposed rule easier to understand, management of B. nevinii and its announce the availability of the draft including answers to questions such as habitat/PCEs as outlined in the MSHCP economic analysis as soon as it is the following: (1) Are the requirements exceed any conservation value provided completed, at which time we will seek in the proposed rule clearly stated? (2) as a result of regulatory protections that public review and comment. At that Does the proposed rule contain may be afforded through a critical time, copies of the draft economic technical jargon that interferes with the habitat designation. analysis will be available for clarity? (3) Does the format of the The exclusion of these lands from downloading from the Internet at http:// proposed rule (grouping and order of critical habitat would also help preserve www.fws.gov/carlsbad, or by contacting the sections, use of headings, the partnerships that we have developed the Carlsbad Fish and Wildlife Office paragraphing, and so forth) aid or with the local jurisdictions and project directly (see ADDRESSES section). Based reduce its clarity? (4) Is the description proponents in the development of the on public comments, the proposed of the notice in the SUPPLEMENTARY MSHCP. The benefits of excluding these designation itself, and the information INFORMATION section of the preamble lands from critical habitat would in the full economic analysis, additional helpful in understanding the proposed outweigh the minimal benefits of areas beyond those identified in this rule? (5) What else could we do to make including these lands as critical habitat, assessment may be excluded from final this proposed rule easier to understand? including the educational benefits critical habitat by the Secretary under Send a copy of any comments on how gained by informing the public of areas the provisions of section 4(b)(2) of the we could make this proposed rule easier important for the long-term Act. This is provided for in the Act and to understand to: Office of Regulatory conservation of this species. Such in our implementing regulations at 50 Affairs, Department of the Interior, educational benefits can still be CFR 242.19. Room 7229, 1849 C Street, NW.,

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Washington, DC 20240. You may e-mail that we have identified as potential RFA. Deferring the RFA finding in this your comments to this address: concerns are listed above in the section manner will ensure that the Service [email protected]. on Section 7 Consultation. The makes a sufficiently informed availability of the draft economic determination based on adequate Required Determinations analysis will be announced in the economic information and provides the Regulatory Planning and Review Federal Register and in local necessary opportunity for public In accordance with Executive Order newspapers so that it is available for comment. public review and comments. The draft 12866, this document is a significant Executive Order 13211 economic analysis can be obtained from rule in that it may raise novel legal and On May 18, 2001, the President issued policy issues, but it is not anticipated to our Web site at http://www.fws.gov/ carlsbad, or by contacting the Carlsbad an Executive Order (E.O. 13211; Actions have an annual effect on the economy Fish and Wildlife Office directly (see Concerning Regulations That of $100 million or more or affect the ADDRESSES section). Significantly Affect Energy Supply, economy in a material way. Due to the Distribution, or Use) on regulations that tight timeline for publication in the Regulatory Flexibility Act (5 U.S.C. 601 significantly affect energy supply, Federal Register, the Office of et seq.) distribution, and use. Executive Order Management and Budget (OMB) has not Under the Regulatory Flexibility Act 13211 requires agencies to prepare formally reviewed this rule. We are (5 U.S.C. 601 et seq., as amended by the Statements of Energy Effects when preparing a draft economic analysis of Small Business Regulatory Enforcement undertaking certain actions. Although this proposed action, which will be Fairness Act (SBREFA) of 1996), this proposed rule to designate critical available for public comment, to whenever an agency is required to habitat for Berberis nevinii is a determine the economic consequences publish a notice of rulemaking for any significant regulatory action under of designating the specific area as proposed or final rule, it must prepare Executive Order 12866, it is not critical habitat. This economic analysis and make available for public comment expected to significantly affect energy also will be used to determine a regulatory flexibility analysis that supplies, distribution, or use. Therefore, compliance with Executive Order describes the effects of the rule on small this action is not a significant energy 12866, Regulatory Flexibility Act, Small entities (small businesses, small action, and no Statement of Energy Business Regulatory Enforcement organizations, and small government Effects is required. Fairness Act, Executive Order 12630, jurisdictions). However, no regulatory Unfunded Mandates Reform Act (2 Executive Order 13211, and Executive flexibility analysis is required if the U.S.C. 1501 et seq.) Order 12875. head of the agency certifies the rule will Further, Executive Order 12866 not have a significant economic impact In accordance with the Unfunded directs Federal Agencies promulgating on a substantial number of small Mandates Reform Act (2 U.S.C. 1501), regulations to evaluate regulatory entities. The SBREFA amended the the Service makes the following alternatives (Office of Management and Regulatory Flexibility Act (RFA) to findings: Budget, Circular A–4, September 17, require Federal agencies to provide a (a) This rule would not produce a 2003). Pursuant to Circular A–4, once it statement of the factual basis for Federal mandate. In general, a Federal has been determined that the Federal certifying that the rule will not have a mandate is a provision in legislation, regulatory action is appropriate, then significant economic impact on a statute or regulation that would impose the agency will need to consider substantial number of small entities. an enforceable duty upon State, local, or alternative regulatory approaches. Since At this time, the Service lacks the Tribal governments, or the private sector the determination of critical habitat is a available economic information and includes both ‘‘Federal statutory requirement pursuant to the necessary to provide an adequate factual intergovernmental mandates’’ and Endangered Species Act of 1973, as basis for the required RFA finding. ‘‘Federal private sector mandates.’’ amended (Act) (16 U.S.C. 1531 et seq.), Therefore, the RFA finding is deferred These terms are defined in 2 U.S.C. we must then evaluate alternative until completion of the draft economic 658(5)–(7). ‘‘Federal intergovernmental regulatory approaches, where feasible, analysis prepared under section 4(b)(2) mandate’’ includes a regulation that when promulgating a designation of of the Act and E.O. 12866. This draft ‘‘would impose an enforceable duty critical habitat. economic analysis will provide the upon State, local, or Tribal In developing our designations of required factual basis for the RFA governments’’ with two exceptions. It critical habitat, we consider economic finding. Upon completion of the draft excludes ‘‘a condition of Federal impacts, impacts to national security, economic analysis, the Service will assistance.’’ It also excludes ‘‘a duty and other relevant impacts under publish a notice of availability of the arising from participation in a voluntary section 4(b)(2) of the Act. Based on the draft economic analysis of the proposed Federal program,’’ unless the regulation discretion allowable under this designation and reopen the public ‘‘relates to a then-existing Federal provision, we may exclude any comment period for the proposed program under which $500,000,000 or particular area from the designation of designation for an additional 60 days. more is provided annually to State, critical habitat providing that the The Service will include with the notice local, and Tribal governments under benefits of such exclusion outweigh the of availability, as appropriate, an initial entitlement authority,’’ if the provision benefits of specifying the area as critical regulatory flexibility analysis or a would ‘‘increase the stringency of habitat and that such exclusion would certification that the rule will not have conditions of assistance’’ or ‘‘place caps not result in the extinction of the a significant economic impact on a upon, or otherwise decrease, the Federal subspecies. As such, we believe that the substantial number of small entities Government’s responsibility to provide evaluation of the inclusion or exclusion accompanied by the factual basis for funding,’’ and the State, local, or Tribal of particular areas, or combination that determination. The Service has governments ‘‘lack authority’’ to adjust thereof, in a designation constitutes our concluded that deferring the RFA accordingly. At the time of enactment, regulatory alternative analysis. finding until completion of the draft these entitlement programs were: Within these areas, the types of economic analysis is necessary to meet Medicaid; AFDC work programs; Child Federal actions or authorized activities the purposes and requirements of the Nutrition; Food Stamps; Social Services

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Block Grants; Vocational Rehabilitation conduct our economic analysis and National Environmental Policy Act State Grants; Foster Care, Adoption review and revise this assessment as It is our position that, outside the Assistance, and Independent Living; warranted. Tenth Circuit, we do not need to Family Support Welfare Services; and Federalism prepare environmental analyses as Child Support Enforcement. ‘‘Federal defined by the NEPA in connection with private sector mandate’’ includes a In accordance with Executive Order designating critical habitat under the regulation that ‘‘would impose an 13132 (Federalism), the rule would not Endangered Species Act of 1973, as enforceable duty upon the private have significant Federalism effects. A amended. We published a notice sector, except (i) A condition of Federal Federalism assessment is not required. outlining our reasons for this assistance or (ii) a duty arising from In keeping with DOI and Department of determination in the Federal Register participation in a voluntary Federal Commerce policy, we requested on October 25, 1983 (48 FR 49244). This program.’’ information from, and coordinated assertion was upheld in the courts of the The designation of critical habitat development of, this proposed critical Ninth Circuit (Douglas County v. does not impose a legally binding duty habitat designation with appropriate Babbitt, 48 F.3d 1495 (9th Cir. Ore. on non-Federal government entities or State resource agencies in California. 1995), cert. denied 116 S. Ct. 698 private parties. Under the Act, the only The designation of critical habitat in (1996)). regulatory effect is that Federal agencies areas currently occupied by Berberis must ensure that their actions do not nevinii would impose no additional Government-to-Government destroy or adversely modify critical restrictions to those currently in place Relationship With Tribes habitat under section 7. While non- and, therefore, has little incremental In accordance with the President’s Federal entities that receive Federal impact on State and local governments memorandum of April 29, 1994, funding, assistance, or permits, or that and their activities. The designation ‘‘Government-to-Government Relations otherwise require approval or would likely have some benefit to these with Native American Tribal authorization from a Federal agency for governments in that the areas that Governments’’ (59 FR 22951), Executive an action may be indirectly impacted by contain the features essential to the Order 13175, and the Department of the designation of critical habitat, the conservation of the species are more Interior’s manual at 512 DM 2, we legally binding duty to avoid clearly defined, and the primary readily acknowledge our responsibility destruction or adverse modification of constituent elements of the habitat to communicate meaningfully with critical habitat rests squarely on the necessary to the conservation of the recognized Federal Tribes on a Federal agency. Furthermore, to the species are specifically identified. While government-to-government basis. We extent that non-Federal entities are making this definition and have determined that there are no tribal indirectly impacted because they identification does not alter where and lands occupied at the time of listing that receive Federal assistance or participate what federally sponsored activities may contain the features essential for the in a voluntary Federal aid program, the occur, it may assist these local conservation of Berberis nevinii, and no Unfunded Mandates Reform Act would governments in long-range planning Tribal lands that are unoccupied areas not apply; nor would critical habitat (rather than waiting for case-by-case that are essential for the conservation of shift the costs of the large entitlement section 7 consultations to occur). B. nevinii. Therefore, the designation of programs listed above on to State critical habitat for B. nevinii has not governments. Civil Justice Reform been proposed on Tribal lands. (b) We do not believe that this rule would significantly affect small In accordance with Executive Order References Cited governments. The lands being proposed 12988, the Office of the Solicitor has A complete list of all references cited for final critical habitat designation are determined that the rule does not in this rulemaking is available upon owned by the Federal Bureau of Land unduly burden the judicial system and request from the Field Supervisor, Management and the U.S. Forest meets the requirements of sections 3(a) Carlsbad Fish and Wildlife Office (see Service. Neither of these government and 3(b)(2) of the Order. We have ADDRESSES section). entities fit the definition of ‘‘small proposed designating critical habitat in governmental jurisdiction.’’ As such, a accordance with the provisions of the Authors Small Government Agency Plan is not Act. This proposed rule uses standard The primary authors of this package required. However, we will further property descriptions and identifies the are the Nevada Fish and Wildlife Office, evaluate this issue as we conduct our primary constituent elements within the Reno, Nevada, and the Carlsbad Fish economic analysis, and review and designated areas to assist the public in and Wildlife Office, Carlsbad, revise this assessment as warranted. understanding the habitat needs of California. Berberis nevinii. Takings List of Subjects in 50 CFR Part 17 Paperwork Reduction Act of 1995 (44 Endangered and threatened species, In accordance with Executive Order U.S.C. 3501 et seq.) 12630 (‘‘Government Actions and Exports, Imports, Reporting and Interference with Constitutionally This rule does not contain any new recordkeeping requirements, Protected Private Property Rights’’), we collections of information that require Transportation. have analyzed the potential takings approval by OMB under the Paperwork Proposed Regulation Promulgation implications of designating critical Reduction Act. This rule will not habitat for the Berberis nevinii in a impose recordkeeping or reporting Accordingly, we propose to amend takings implications assessment. The requirements on State or local part 17, subchapter B of chapter I, title takings implications assessment governments, individuals, businesses, or 50 of the Code of Federal Regulations, concludes that this proposed organizations. An agency may not as set forth below: designation of critical habitat for the B. conduct or sponsor, and a person is not PART 17—[AMENDED] nevinii would not pose significant required to respond to, a collection of takings implications. However, we will information unless it displays a 1. The authority citation for part 17 further evaluate this issue as we currently valid OMB control number. continues to read as follows:

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Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 2. In § 17.12(h), revise the entry for § 17.12 Endangered and threatened plants. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– ‘‘Berberis nevinii’’ under ‘‘FLOWERING * * * * * 625, 100 Stat. 3500; unless otherwise noted. PLANTS’’ to read as follows: (h) * * *

Species Historic range Family Status When list- Critical Special Scientific name Common name ed habitat rules

FLOWERING PLANTS

******* Berberis nevinii ...... Nevin’s barberry U.S.A. (CA) .. Berberidaceae ..... E ...... 648 ...... 17.96(a) NA.

*******

3. Amend § 17.96(a) as follows: or more of the primary constituent 3705628; 502641, 3705560; 502648, 3705557; a. Add ‘‘Family Berberidaceae’’ in elements. 502653, 3705552; 502659, 3705538; 502665, alphabetical order of the family names; (4) Data layers defining map units 3705518; 502667, 3705506; 502676, 3705495; and were created on a base of USGS 1:24,000 502684, 3705486; 502693, 3705468; 502695, 3705461; 502693, 3705456; 502700, 3705444; b. Add a critical habitat entry for maps, and critical habitat units were 502707, 3705436; 502712, 3705428; 502712, ‘‘Berberis nevinii’’ under Family then mapped using Universal 3705419; 502708, 3705408; 502705, 3705396; Berberidaceae to read as set forth below. Transverse Mercator (UTM) North 502698, 3705384; 502689, 3705376; 502676, American Datum (NAD) 1927 3705356; 502669, 3705334; 502671, 3705311; § 17.96 Critical habitat—plants. coordinates. We used aerial photographs 502677, 3705301; 502672, 3705285; 502669, (a) Flowering Plants. as well as soils and vegetation data to 3705266; 502659, 3705234; 502649, 3705196; * * * * * help refine unit boundaries based on 502652, 3705152; 502658, 3705122; 502661, presence of PCEs. 3705080; 502665, 3705034; 502674, 3705014; Family Berberidaceae: Berberis nevinii (5) Unit 1. Agua Tibia/Vail Lake, 502685, 3704979; 502705, 3704936; 502708, (Nevin’s barberry) 3704929; 502724, 3704909; 502725, 3704908; Riverside County, California. 502736, 3704876; 502793, 3704820; 502828, (1) Critical habitat is depicted for (i) Subunit 1A for Berberis nevinii, Big Oak 3704794; 502859, 3704788; 502865, 3704791; Riverside County, California, in the text Mountain Summit Subunit, Riverside 502879, 3704784; 502907, 3704779; 502941, and on the maps below. County, California. From USGS 1:24,000 3704777; 503019, 3704751; 503051, 3704744; (2) The primary constituent elements quadrangle Sage, lands bounded by the 503079, 3704742; 503108, 3704745; 503134, (PCEs) of critical habitat for Berberis following UTM NAD27 coordinates (E, N): 3704748; 503151, 3704748; 503164, 3704748; nevinii are: 502200, 3708400; 502400, 3708400; 502400, 503174, 3704748; 503187, 3704746; 503198, (i) Low-gradient (i.e., nearly flat) 3708100; 502200, 3708100; thence returning 3704737; 503207, 3704732; 503215, 3704728; canyon floors, washes and adjacent to 502200, 3708400. 503281, 3704698; 503289, 3704697; 503300, (ii) Subunit 1B for Berberis nevinii, Agua 3704696; 503300, 3704300; 503600, 3704300; terraces, and mountain ridges/summits, Tibia Mountain Foothills Subunit, Riverside 503600, 3704100; 503500, 3704100; 503500, or eroded, generally northeast- to County, California. From USGS 1:24,000 3703900; 503200, 3703900; 503200, 3704100; northwest-facing mountain slopes and quadrangle Vail Lake, lands bounded by the 503100, 3704100; 503100, 3704600; 502700, banks of dry washes typically of less following UTM NAD27 coordinates (E, N): 3704600; 502700, 3704700; 502300, 3704700; than 70 percent slope that provide space 504222, 3703100; 504400, 3703100; 504400, 502300, 3704500; 502200, 3704500; 502200, for plant establishment and growth; 3703000; 504500, 3703000; 504500, 3702700; 3704200; 502000, 3704200; 502000, 3704000; (ii) Well-drained alluvial soils 504300, 3702700; 504300, 3702900; 504200, 501600, 3704000; 501600, 3704300; 501700, primarily of non-marine sedimentary 3702900; 504200, 3703086; thence returning 3704300; 501700, 3705100; 501900, 3705100; origin, such as Temecula or sandy to 504222, 3703100. 501900, 3704900; 502000, 3704900; 502000, (iii) Subunit 1C for Berberis nevinii, South 3704600; 502009, 3704588; 502038, 3704568; arkose soils; soils of the Cajalco- Flank Big Oak Mountain Subunit, Riverside 502064, 3704558; 502111, 3704555; 502159, Temescal-Las Posas soil association County, California. From USGS 1:24,000 3704562; 502191, 3704583; 502222, 3704611; formed on gabbro (igneous) or latite quadrangles Sage and Vail Lake, lands 502247, 3704656; 502274, 3704719; 502287, (volcanic) bedrock; metasedimentary bounded by the following UTM NAD27 3704762; 502287, 3704806; 502271, 3704875; substrates associated with springs or coordinates (E, N): 501900, 3707400; 502100, 502242, 3704940; 502237, 3704948; 502237, seeps; and heavy adobe/gabbro-type 3707400; 502100, 3707200; 502400, 3707200; 3704961; 502272, 3704992; 502296, 3705015; soils derived from metavolcanic geology 502400, 3707100; 502700, 3707100; 502700, 502330, 3705040; 502358, 3705052; 502382, (Mesozoic basic intrusive rock) that 3706900; 502100, 3706900; 502100, 3706400; 3705079; 502404, 3705116; 502423, 3705150; provide the appropriate nutrients and 501900, 3706400; thence returning to 501900, 502434, 3705160; 502436, 3705171; 502487, 3707400. 3705293; 502496, 3705308; 502500, 3705322; space for growth and reproduction; and (iv) Subunit 1D for Berberis nevinii, North 502497, 3705332; 502501, 3705348; 502497, (iii) Scrub (chaparral, coastal sage, Vail Lake Subunit, Riverside County, 3705372; 502487, 3705414; 502481, 3705428; alluvial, riparian) and woodland (oak, California. From USGS 1:24,000 quadrangles 502475, 3705447; 502456, 3705535; thence riparian) vegetation communities Sage and Vail Lake, lands bounded by the returning to 502473, 3705611. between 900 and 3,000 ft (275 and 915 following UTM NAD27 coordinates (E, N): (vi) Subunit 1F for Berberis nevinii, m) in elevation that provide the 502600, 3706600; 502900, 3706600; 502900, Temecula Creek East Subunit, Riverside appropriate cover for growth and 3706300; 502600, 3706300; thence returning County, California. From USGS 1:24,000 reproduction. to 502600, 3706600. quadrangle Vail Lake, lands bounded by the (v) Subunit 1E for Berberis nevinii, South following UTM NAD27 coordinates (E, N): (3) Critical habitat does not include of Vail Lake/Peninsula Subunit, Riverside 504400, 3704200; 504600, 3704200; 504600, man made structures (such as buildings, County, California. From USGS 1:24,000 3703800; 504400, 3703800; thence returning aqueducts, airports, roads, and other quadrangle Vail Lake, lands bounded by the to 504400, 3704200. paved areas) existing on the effective following UTM NAD27 coordinates (E, N): (vii) Map of Subunits 1A through 1F (Map date of this rule and not containing one 502473, 3705611; 502487, 3705628; 502494, 1) follows.

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Map 1: Unit 1—Vail Lake (Subunit 1A South Flank Big Oak Mountain, Subunit Temecula Creek East), Riverside County, Big Oak Mountain, Subunit 1B Agua 1D North of Vail Lake, Subunit 1E South California. Tibia Mountain Foothills, Subunit 1C of Vail Lake/Peninsula, Subunit 1F BILLING CODE 4310–55–P

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* * * * * Dated: January 30, 2007. David M. Verhey, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 07–472 Filed 2–5–07; 8:45 am] BILLING CODE 4310–55–C

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