Vol. 77 Tuesday, No. 44 March 6, 2012

Part II

Department of the Interior

Fish and Wildlife Service 50 CFR Chapter 17 Endangered and Threatened Wildlife and Plants; Revised Endangered Status, Revised Critical Habitat Designation, and Taxonomic Revision for Monardella linoides ssp. viminea; Final Rule

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DEPARTMENT OF THE INTERIOR Wildlife Office, 6010 Hidden Valley by Prince (2009), we accept the Road, Suite 101, Carlsbad, CA 92011; treatment of Elvin and Sanders (2003). Fish and Wildlife Service telephone 760–431–9440; facsimile This treatment found that some discrete 760–431–5901. occurrences that were previously 50 CFR Part 17 FOR FURTHER INFORMATION CONTACT: Jim identified as the listed entity [Docket No. FWS–R8–ES–2010–0076; Bartel, Field Supervisor, U.S. Fish and Monardella linoides ssp. viminea do not 4500030114] Wildlife Service, Carlsbad Fish and in fact represent that entity, but rather Wildlife Office, 6010 Hidden Valley a separate taxon. We also accept, and RIN 1018–AX18 Road, Suite 101, Carlsbad, CA 92011; will use here, the scientific name Monardella viminea for the listed Endangered and Threatened Wildlife telephone 760–431–9440; facsimile willowy monardella. Elvin and Sanders and Plants; Revised Endangered 760–431–5901. If you use a telecommunications device for the deaf (2003, p. 426) provided the name Status, Revised Critical Habitat Monardella stoneana for plants they Designation, and Taxonomic Revision (TDD), call the Federal Information Relay Service (FIRS) at 800–877–8339. determined were sufficiently distinct for Monardella linoides ssp. viminea from willowy monardella to warrant SUPPLEMENTARY INFORMATION: AGENCY: Fish and Wildlife Service, recognition at the species rank. These Interior. Background authors returned willowy monardella to species status as M. viminea, the name ACTION: Final rule. It is our intent to discuss only those under which it was originally described. topics directly relevant to our SUMMARY: In addition, Elvin and Sanders (2003, We, the U.S. Fish and recognition of the taxonomic split of p. 431) point out its distinctiveness from Wildlife Service (Service), recognize the Monardella linoides ssp. viminea into M. linoides taxa in San Diego County, recent change to the taxonomy of the two distinct taxa: Monardella viminea currently endangered plant taxon, California. (willowy monardella) and Monardella Several consequences result from the Monardella linoides ssp. viminea, in stoneana (Jennifer’s monardella), the which the subspecies was split into two change in taxonomy and recognition of retention of M. viminea as endangered, the species split. First, we will refer to distinct full species, Monardella the designation of critical habitat for M. viminea (willowy monardella) and willowy monardella as Monardella viminea under the Act (16 U.S.C. 1531 viminea. Second, the range, description, Monardella stoneana (Jennifer’s et seq.), and our conclusion that M. monardella). Because the original and the magnitude and immediacy of stoneana does not meet the definition of threats to the listed entity (now M. subspecies, Monardella linoides ssp. endangered or threatened under the Act. viminea, was listed as endangered viminea) have changed. A map of the For more information on the biology distributions of the two species, M. under the Endangered Species Act of and ecology of M. viminea and M. 1973, as amended (Act), we reviewed viminea and M. stoneana, is provided in stoneana, refer to the final listing rule Figure 1, below. Third, those and updated the threats analysis that we published in the Federal Register on completed for the taxon in 1998, when individuals now recognized as October 13, 1998 (63 FR 54938) and the M. stoneana, which are identified as it was listed as a subspecies. We also critical habitat rule published November reviewed the status of the new species, morphologically and ecologically 8, 2006 (71 FR 65662). For new distinct from the listed entity Monardella stoneana. We retain the information specific to M. viminea and listing status of Monardella viminea as (M. viminea), are no longer afforded M. stoneana, including species protections by the Act under the name endangered, and we remove protections descriptions, distributions, taxonomic afforded by the Act from those M. viminea. ranks, and nomenclature, as well as new In this final rule, we present the individuals now recognized as the information on soils, potential separate species, Monardella stoneana, results of a status review for Monardella pollinators, and current threats to the viminea in consideration of its changed because the new species does not meet two species not included in our original morphological and ecological the definition of endangered or listing or critical habitat rules for M. description and diminished range. We threatened under the Act. We also revise linoides ssp. viminea, refer to the also present our revised designation of designated critical habitat for proposed rule to designate revised critical habitat for M. viminea. Finally, Monardella viminea. In total, critical habitat for M. viminea published we present the results of our status approximately 122 acres (50 hectares) in in the Federal Register on June 9, 2011 review for those plants previously San Diego County, California, fall (76 FR 33880). For information on the protected under the Act as M. viminea, within the boundaries of the critical associated draft economic analysis for and that are now identified as M. habitat designation. We are not the proposed rule to designate revised stoneana, and conclude M. stoneana designating critical habitat for critical habitat, refer to the document does not meet the definition of Monardella stoneana because this published in the Federal Register on endangered or threatened under the Act. species does not warrant listing under September 28, 2011 (76 FR 59990). We first proposed recognizing the the Act. taxonomic classification of Monardella DATES: This rule becomes effective on Procedural Aspects of This Rule linoides ssp. viminea as a distinct April 5, 2012. In 2003, Elvin and Sanders proposed species (M. viminea) and reclassifying a ADDRESSES: This final rule and the a taxonomic split of the previously portion of Monardella linoides ssp. associated final economic analysis are listed entity Monardella linoides ssp. viminea as a separate species available on the Internet at http:// viminea into two distinct species. The (M. stoneana) in the proposed listing www.regulations.gov. Comments and Service initially disagreed with the and revised critical habitat rule materials received, as well as supporting segregation and classification of M. published in the Federal Register on documentation used in preparing this stoneana as a distinct species due to June 9, 2011 (76 FR 33880). Based on final rule, are available for public lack of sufficient supportive evidence the information presented in the inspection, by appointment, during presented by Elvin and Sanders (Bartel proposed rule (see Taxonomic and normal business hours, at the U.S. Fish and Wallace 2004, pp. 1–3), but upon Nomenclatural Changes Affecting and Wildlife Service, Carlsbad Fish and review of corroborating genetic analysis Monardella linoides ssp. viminea of the

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proposed rule (76 FR 33880, June 9, Endangered and Threatened Plants at 50 ‘‘Monardella viminea (willowy 2011)), and acceptance by the scientific Code of Federal Regulations (CFR) monardella).’’ community, we finalize the taxonomic 17.12(h) to identify the listed entity as BILLING CODE 4310–55–P change and amend the List of

BILLING CODE 4310–55–C location of Monardella viminea plants. the ‘‘element occurrences’’ (EOs) as New Information on Occurrences of In this context, we are referring to point described by the California Department Monardella viminea and Monardella locations that contain one or more of Fish and Game (CDFG) in the stoneana M. viminea individuals or to polygons California Natural Diversity Database representing the boundaries of clumps (CNDDB). Utilizing EOs to describe In this document we use the word of plants. These point locations or locations of M. viminea plants in our ‘‘occurrence’’ when describing the polygons may include one or more of listing and critical habitat analyses is

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consistent with terminology used by the we considered 20 occurrences to be those 11 extant occurrences have since Service in previous rules for this extant in the United States (see Table 1) been extirpated, again in the range of M. species. It also provides clarity in (63 FR 54938, October 13, 1998). As of viminea. Additionally, as a result of referencing clumps of plants in canyons 2008, 9 occurrences were considered taxonomic changes, the two that may be referred to by multiple or extirpated, leaving 11 extant southernmost element occurrences changing names. In all other respects in occurrences (Service 2008, p. 5). All previously considered M. linoides ssp. this document, ‘‘element occurrence’’ or nine extirpated occurrences were in viminea were reclassified as M. ‘‘occurrence’’ references are those from central San Diego County in the range stoneana after the 2008 5-year review, the cumulative data of the CNDDB of what is now considered to be M. leaving seven extant occurrences of (2011a, EOs 1–31). viminea. Based on updated information M. viminea (see Table 1). We now As discussed in the June 9, 2011, from Marine Corps Air Station (MCAS) consider an eighth occurrence to be proposed rule (76 FR 33880), when we Miramar (Kassebaum 2010, pers. extant, as described in the following listed Monardella linoides ssp. viminea, comm.), 2 additional occurrences of paragraphs.

TABLE 1—LIST OF ELEMENT OCCURRENCES OF MONARDELLA VIMINEA AND MONARDELLA STONEANA BY LOCATION, AND WHEN THOSE OCCURRENCES WERE KNOWN TO BE EXTANT

Known and Location CNDDB Element Occurrence extant at Extant at 2008 Currently extant No. (EO) listing 5-yr review

Monardella viminea: Lopez Canyon ...... 1 ...... X X X Cemetery Canyon ...... 3 ...... X ...... Carroll Canyon ...... 4 ...... X ...... Sycamore Canyon ...... 8 ...... X X X San Clemente Canyon ...... 11 ...... X ...... San Clemente Canyon ...... 12 ...... X ...... X San Clemente Canyon ...... 13 ...... X ...... Murphy Canyon ...... 14 ...... X ...... Murphy Canyon ...... 15 ...... X X San Clemente Canyon ...... 16 ...... X ...... San Clemente Canyon ...... 17 ...... X ...... West Sycamore Canyon ...... 21 ...... X X X Elanus Canyon ...... 24 ...... X X X Carroll Canyon ...... 25 ...... X ...... Spring Canyon ...... 26 ...... X X X San Clemente Canyon ...... 27 ...... X X X Otay Lakes ...... 28 ...... X X Now considered M. stoneana EO4 Sycamore Canyon ...... 29 ...... X X X Miramar NAS ...... 31 ...... X X Marron Valley ...... none ...... X X Now considered M. stoneana EO1 Monardella stoneana: Marron Valley ...... 1 ...... X X X NW Otay Mountain ...... 2 ...... X X NW Otay Mountain ...... 3 ...... X X Otay Lakes ...... 4 ...... X X X Buschalaugh Cove ...... 5 ...... X X Cottonwood Creek ...... 6 ...... X X Copper Canyon ...... 7 ...... X X S. of Otay Mountain ...... 8 ...... X X Tecate Peak ...... 9 ...... X X Sources: CNDDB 1998, 2007, 2011a, 2011b; Service 2008, Table 1; Kassebaum 2010, pers. comm.

After a new review of Geographical extant. We believe there are now eight section in the proposed rule (76 FR Information Systems (GIS) data and the element occurrences of M. viminea, and 33880, June 9, 2011). most recent survey report from MCAS that these eight EOs were extant at the In addition to two occurrences now Miramar, we found that an occurrence time of listing. Therefore, we currently considered to be Monardella stoneana of M. viminea in San Clemente Canyon consider only 10 occurrences to be (but considered at listing to be M. had incorrectly been reported as extirpated rather than 11. We are not linoides ssp. viminea), we now know of extirpated both in the 2008 5-year aware of any new occurrences of M. an additional seven occurrences of M. review and the June 9, 2011, proposed viminea, other than those planted in stoneana, all in what was once the rule. Further reviews of data from 2007, as a conservation measure to southern range of M. linoides ssp. MCAS Miramar showed that plants have offset impacts associated with the viminea (Figure 1, above). We presume continuously been present in the development of the Carroll Canyon those occurrences were extant at the location that was incorrectly considered Business Park. More information on four time M. linoides ssp. viminea was listed. extirpated (Rebman and Dossey 2006, translocated occurrences is discussed in Although we reported in the June 9, Map 10; Tierra Data 2011, Map 6). 2011, proposed rule that the single plant the Geographic Range and Status Therefore, we now recognize EO 12 as in the M. stoneana occurrence at Otay

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Lakes (M. stoneana EO 4, formerly M. Miramar. The study examined three (5) We updated this final rule to viminea EO 28) was extirpated by the different treatments for enhancing include information about protections 2007 Harris Fire, 2011 surveys by the habitat conditions for M. viminea: hand afforded to Monardella viminea by the City of San Diego reported a single plant removal of nonnative grasses, herbicide newly approved integrated natural had resprouted in the same location application to nonnative grasses, and resources management plan (INRMP) for (City of San Diego 2011a, p. 229). The application of cobble to provide rock MCAS Miramar. monitor for the city reported that the mulch (AMEC 2011, p. 1–1). We also (6) Based on information submitted by plant was of robust size and height, added findings from the study to the commenters, we updated the Special making it more likely to be a resprout Factor A and Factor C analyses for M. Management Considerations or than a juvenile or seedling (Miller 2011, viminea, and to the Special Protection section with measures on pers. comm.). Therefore, in this final Management Considerations or how to manage and protect essential rule, we now consider nine occurrences Protection section. Additionally, we habitat that supports Monardella of M. stoneana to be extant. added information on habitat viminea. Throughout this document we refer to fragmentation to the Factor A analysis (7) Based on further communication previous reports and documents, for M. viminea. with managers of Otay Mountain including Federal Register publications. (2) Based on information submitted by Ecological Reserve, we updated the Information contained in documents commenters, we added information to management policies and guidelines for issued prior to the present document the five-factor analyses for both species, the Reserve in the Factor D discussion may reference Monardella viminea as M. such as the effects of trampling on for Monardella stoneana. linoides ssp. viminea, and may include Monardella viminea, the effects of road (8) We added further information on statements or data referring to plants or construction on M. stoneana, and possible threats posed by illegal border populations now known as M. stoneana. factors influencing the lack of crossings to Factor A for Monardella stoneana. Summary of Changes From Proposed recruitment for M. viminea. (9) As requested by a commenter, we Rule (3) Based on a suggestion we received revised the Altered Hydrology section in In preparing this final listing rule and from a commenter, we added a the Factor A analysis for Monardella critical habitat designation, we reviewed discussion of protections afforded by viminea to address changing watershed and considered comments from the the Clean Water Act (33 U.S.C. 1251 et conditions in the range of the species. public on the proposed listing of seq.) to the five-factor analyses for both (10) The areas designated as critical Monardella viminea, proposed removal species. habitat in this final rule constitute a of plants now recognized as M. stoneana (4) Based on information presented by slight revision of the critical habitat for from the listed entity, and proposed a commenter, we revised the list of Monardella viminea we proposed on designation of critical habitat for M. activities requiring consultation for June 9, 2011 (76 FR 33880). During the viminea published on June 9, 2011 (76 critical habitat, including removal of first public comment period, we FR 33880). As a result of public activities that have previously had no received notification from MCAS comments and peer review, we made detrimental effect on Monardella Miramar that we were not using the slight changes to our analysis of threats viminea (such as fire retardant use). We most recent boundaries in the proposed for both species and the revised also removed mention of herbicide rule (Dept. of Environmental designation of critical habitat for M. application as an activity that requires Management, MCAS Miramar 2011, p. viminea. These changes are as follows: consultation because small-scale 3). While there was no change in the (1) We added information from a application of herbicide on weeds in total area identified as critical habitat, Monardella viminea habitat study direct proximity to M. viminea has a ownership area totals in some areas did conducted by researchers at MCAS demonstrated benefit to the species. change, as shown in Table 2.

TABLE 2—CHANGES IN OWNERSHIP AREA TOTALS BETWEEN PROPOSED AND FINAL RULES

Proposed critical habitat Final critical habitat Federal State/local Private Federal State/local Private ac (ha) ac (ha) ac (ha) ac (ha) ac (ha) ac (ha)

Unit 1—Sycamore Canyon ...... 156 (63) 25 (10) 170 (69) 153 (62) 22 (8) 175 (70) Unit 2—West Sycamore Canyon ...... 550 (222) 27 (11) 0 (0) 551 (223) 26 (11) 0 (0) Unit 3—Spring Canyon ...... 176 (71) 5 (2) 92 (37) 170 (69) 5 (2) 98 (40) Unit 4—East San Clemente Canyon ...... 454 (184) 13 (5) 0 (0) 462 (187) 5 (2) 0 (0) Unit 5—West San Clemente Canyon ...... 210 (85) 16 (7) 1 (<1) 227 (92) 0 (0) 0 (0)

Total ...... 1,546 (626) 86 (35) 263 (106) 1,563 (663) 58 (24) 273 (111)

Total Essential Habitat ...... 1,895 (767) ...... 1,895 (767)

Exempted Proposed Proposed Exempted Excluded ** Designated excluded designation *

1,546 (626) 208 (84) 348 (141) 1,563 (663) 210 (85) 122 (50) Values in this table may not sum due to rounding. * ‘‘Proposed designation’’ includes acreages proposed for exclusion. ** Excluded acreages include private lands covered by the City of San Diego and County of San Diego Subarea Plans under the San Diego Multiple Species Conservation Program (MSCP).

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(11) Table 3 of the proposed rule challenging our designation of critical were located on private property, and incorrectly listed Unit 1 as consisting of habitat for M. linoides ssp. viminea development proposals existed for one 158 ac (64 ha) of private land and 36 ac (Center for Biological Diversity v. United of the parcels. Since listing, one of those (15 ha) of state and local land. The table States Fish and Wildlife Service and two occurrences, EO 25 from the Carroll should have shown 170 ac (69 ha) of Dirk Kempthorne, Secretary of the Canyon Business Park (CNDDB 2011a), private land and 25 ac (10 ha) of state Interior, Case No. 3:09–CV–0050– has been extirpated due to construction and local land. MMA–AJB). A settlement agreement activities. Additionally, EO 14 in (12) In the June 9, 2011, proposed was reached with the plaintiffs dated Murphy Canyon was believed extirpated revised rule, we stated that we were November 14, 2009, in which we agreed after listing due to lingering impacts considering lands owned by or under to submit a proposed revised critical from construction activity near Highway the jurisdiction of the City of San Diego habitat designation to the Federal 15 (CNDDB 2011a). Subarea Plan and the County of San Register for publication by February 18, The Cities of San Diego and Santee Diego Subarea Plan under the San Diego 2011, and a final revised critical habitat have purchased private property as Multiple Species Conservation Program designation to the Federal Register for reserve land for Monardella viminea. (MSCP) for exclusion under section publication by February 17, 2012. By Most occurrences are now found on 4(b)(2) of the Act. We have now made order dated February 10, 2011, the land conserved or owned by MCAS a final determination that the benefits of district court approved a modification to Miramar, the City of San Diego, and the exclusion outweigh the benefits of the settlement agreement that extended County of San Diego. Lands owned by inclusion of lands covered by the City the deadline for Federal Register the City and County of San Diego are and County Subarea Plans and that submission to June 18, 2011, for the covered by the MSCP, which is a habitat exclusion of these lands will not result proposed revised critical habitat conservation plan (HCP) intended to in extinction of the species. Therefore, designation; we published the proposed maintain and enhance biological the Secretary is exercising his discretion rule in the Federal Register on June 9, diversity in the San Diego region, and to to exclude approximately 177 acres (ac) 2011 (76 FR 33880). The deadline for conserve viable populations of (72 hectares (ha)) of land within the submission of a final revised critical endangered, threatened, and key boundaries of the City of San Diego habitat designation to the Federal sensitive species and their habitats Subarea Plan and 32 ac (13 ha) within Register remains February 17, 2012. (including M. viminea). The MSCP the County of San Diego Subarea Plan This rule complies with the conditions designates lands to be set aside for from this final designation. For a of the settlement agreement. biological preserves. However, 10 complete discussion of the benefits of percent of habitat for M. viminea occurs inclusion and exclusion, see the Summary of Factors Affecting on privately owned land outside of the Exclusions section below. Monardella viminea reserve areas. This land includes areas Only information relevant to actions Section 4 of the Act and its in the City of Santee outside of the described in this final rule is provided implementing regulations (50 CFR part purchased reserve land, and one of the below. For additional information on 424) set forth the procedures for adding four transplanted occurrences in Carroll Monardella viminea, including a species to the Federal Lists of Canyon within the boundaries of the detailed description of its life history Endangered and Threatened Wildlife City of San Diego (Ince and Krantz 2008, and habitat, refer to the final listing rule and Plants. A species may be p. 1). Any sites outside of the MSCP published in the Federal Register on determined to be an endangered or reserve areas are vulnerable to October 13, 1998 (63 FR 54938), the threatened species due to one or more development. Portions of Sycamore final rule designating critical habitat of the five factors described in section Canyon where M. viminea occurs were published in the Federal Register on 4(a)(1) of the Act: (A) The present or previously slated for development November 8, 2006 (71 FR 65662), the threatened destruction, modification, or (Service 2003a, pp. 1–23), although the 5-year review completed in March 2008 curtailment of its habitat or range; (B) project has been put on hold due to (Service 2008), and the proposed rule overutilization for commercial, bankruptcy issues, and no development published on June 9, 2011 (76 FR recreational, scientific, or educational is currently scheduled (San Diego 33880). Actions described below purposes; (C) disease or predation; (D) Business Journal 2011, pp. 1–3). Another potential impact of increased include status reviews of M. viminea the inadequacy of existing regulatory urbanization is habitat fragmentation. and M. stoneana and a revision of the mechanisms; or (E) other natural or As noted in the New Information on critical habitat designation for M. manmade factors affecting its continued Occurrences of Monardella viminea and viminea. existence. Listing actions may be Monardella stoneana section above, 11 Previous Federal Actions warranted based on any of the above occurrences of Monardella viminea have threat factors, singly or in combination. Monardella linoides ssp. viminea was been extirpated since listing. To some Each of these factors for Monardella listed as endangered in 1998 (63 FR extent, M. viminea evolved in a viminea is discussed below. 54938, October 13, 1998). An account of naturally fragmented landscape, as it Federal actions prior to listing may be A. The Present or Threatened occurs in individual drainages. In found in the listing rule (63 FR 54938, Destruction, Modification, or natural conditions, some habitat October 13, 1998). On November 9, Curtailment of Its Habitat or Range connectivity could be provided through 2005, we published a proposed rule to pollinator movement between designate critical habitat for M. linoides Urbanization/Development occurrences in close proximity to each ssp. viminea (70 FR 67956). On The original listing rule identified other. Uninterrupted habitat within November 8, 2006 (71 FR 65662), we urban and residential development as a canyons is also important for published our final rule designating threat to Monardella linoides ssp. maintaining the downstream flows that critical habitat for M. linoides ssp. viminea (63 FR 54938, October 13, create secondary benches and sandbars viminea. On January 14, 2009, the 1998). Prior to 1992, San Diego had upon which M. viminea grows, and for Center for Biological Diversity filed a grown by ‘‘a factor of 10 over the last 50 scouring nonnative grasses from those complaint in the U.S. District Court for years’’ (Soule et al. 1992, p. 39). At the areas. Thus, under unaltered conditions, the Southern District of California time of listing, two large occurrences habitat fragmentation is not a threat to

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M. viminea. However, urbanization Sand and Gravel Mining 135). Such watershed changes can alter (particularly in areas surrounding Sand and gravel mining was the riparian vegetation community occurrences of M. viminea in Carroll identified at the time of listing as through changes in median and and Lopez Canyons) interrupts adversely affecting Monardella linoides minimum daily discharges, dry season pollinator movement and natural ssp. viminea (63 FR 54938, October 13, runoff, and flood magnitudes (White streamflow in the canyons, and 1998). Sand and gravel mining has and Greer 2006, pp. 133–136). Increased urbanization could prevent movement broad-scale disruptive qualities to strong floods also have the potential to and decrease genetic diversity of the native ecosystems (Kondolf et al. 2002, wash away plants as large as or larger species. Additionally, in San Clemente p. 56). The larger (340 individuals) of than M. viminea, as has occurred in Canyon, the Sim J. Harris aggregate two occurrences found on private land Lopez Canyon during heavy runoff following winter storms (Kelly and mine acts as a barrier to the physical at the time of listing was identified as Burrascano 2001, pp. 2–3), where and biotic continuity, and as a barrier to being threatened by sand and gravel flooding severely impacted the M. natural water flow between the east and mining, which had the potential to viminea occurrences (Kelly and eliminate or disrupt these local west halves of the canyon, although Burrascano 2006, pp. 65–69). natural habitat for pollinators remains. populations through changes in Additionally, increases in surface and The occurrences discussed above hydrology and elimination of individual subsurface soil moisture (via direct represent only a small proportion of plants. Since listing, all occurrences effects to the water table associated with vulnerable to mining impacts have been habitat that contains clumps of watershed urbanization), and changes in extirpated, either by altered drainage Monardella viminea. Seventy percent of streamflow from ephemeral to patterns or construction unrelated to land where M. viminea occurs is owned perennial, adversely affect native plants, mining operations (CNDDB 2011a, EOs and managed by MCAS Miramar, and such as Monardella viminea, that are 3 and 25). Currently, we are not aware adapted to a drier Mediterranean most remaining large occurrences (with of any ongoing mining activities or more than 100 clumps of M. viminea) climate (cool moist winters and hot dry plans for future mining activities that summers). Monardella viminea has been are found on MCAS Miramar, with the would impact the species. While we exception of Spring Canyon (CNPS unable to adapt to the increased soil may not be fully aware of all potential moisture and nonnative species 2011, p. 7). All M. viminea on MCAS gravel mining activities on private Miramar occurs within Level I or II incursion has been exacerbated by the lands, few M. viminea occurrences are changing water regime (underground management areas (see Exemptions on private land. Therefore, we do not hydrology) (Burrascano 2007, pers. below for explanation of the two levels consider sand and gravel mining to be comm.). Nonnative species can smother of management). Management areas on a threat to M. viminea now or in the seedling and mature plants and prevent MCAS Miramar provide a guide for future. natural growth of M. viminea (Rebman mitigation actions for development on Altered Hydrology and Dossey 2006, p. 12). the base, and are organized based ‘‘on Since listing, three occurrences have differing resource conservation The original listing rule identified been extirpated due to altered requirements and management altered hydrology as a threat to hydrological patterns: Cemetery concerns’’ (Gene Stout and Associates et Monardella linoides ssp. viminea, Canyon, Carroll Canyon, and western al. 2011, p. 5–2). Level I and II particularly in those portions of the San Clemente Canyon (CNDDB 2011a, management areas are those that contain habitat now considered to be in the EOs 3, 4, 11). All three of these sensitive species. Specific mitigation range of M. viminea (63 FR 54938, occurrences are on city-owned or measures within Level I and II October 13, 1998). Monardella viminea private land. On MCAS Miramar, management areas depend on the requires a natural hydrological system watersheds on the undeveloped eastern surrounding habitat type. For temporary to maintain and deposit material for the half of the base, where over 80 percent habitat loss in riparian corridors, all secondary benches and streambeds on of Monardella viminea plants are found, actions must include measures to which the species grows (Scheid 1985, appear to have retained their natural minimize direct impact to the habitat, pp. 30–31, 34–35). Upstream hydrological regime (Rebman and development can disrupt this regime, decrease erosion and runoff, and Dossey 2006, p. 37). increasing storm runoff that can erode, provide for a 2:1 ratio of habitat Considering the synergistic and rather than establish, the sandy banks enhancement and restoration for cumulative effects of these combined and secondary benches upon which M. endangered and threatened plants. For hydrological threats exacerbated by viminea grows. White and Greer (2006, permanent habitat loss within riparian heavy development surrounding several p. 131) found that streamflow canyons, we expect that altered areas where listed species are present, conditions in the Los Pen˜ asquitos Creek the following actions occur: Creation of hydrology will continue to pose a system, which includes M. viminea significant threat to habitats that a corridor for wildlife movement of 500 occurrences in Carroll and Lopez support Monardella viminea, feet (ft) (150 meters (m)) or less, Canyons, have changed drastically from particularly outside the border of MCAS assurance of no net loss of wetland historical conditions. Their study Miramar. We anticipate that this threat habitat, and suitable compensation for estimated that urbanization of the area will continue into the future. occupied habitat at a 2:1 ratio (Gene increased from 9 percent in 1973, to 37 Stout and Associates et al. 2011, Tables percent in 2000, and that, Fire and Type Conversion 6.2.2.2a, 6.2.2.2b). Therefore, although correspondingly, runoff in the canyons The listing rule mentioned that fuel urbanization does threaten some increased by 200 percent over that same modification to exclude fire could affect occurrences of Monardella viminea, and period (White and Greer 2006, p. 134). Monardella linoides ssp. viminea (63 FR effects from habitat fragmentation may Further, strong floods within the 54938, October 13, 1998); the same is occur on the edge of the species’ range, watershed have increased from 350 to true of the reclassified M. viminea and the threat to the species’ habitat is not 700 percent over the same time period, its habitat. Otherwise, fire was not significant across the range of the with no corresponding increase in considered a severe threat to the species species. rainfall (White and Greer 2006, pp. 134– at the time of listing.

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Our understanding of fire in fire- interaction between plants and animals, B. Overutilization for Commercial, dependent habitats has changed since and (7) biological and biogeochemical Recreational, Scientific, or Educational Monardella linoides ssp. viminea was processes (soil property alteration) Purposes listed in 1998 (Dyer 2002, pp. 295–296). (Keane et al. 2002, p. 8). Where To our knowledge, no commercial use Fire is a natural component for naturally occurring fire is excluded, of Monardella viminea exists. The regeneration and maintenance of M. species adapted to fire (such as listing rule suggested that professional viminea habitat. The species’ habitat M. viminea) are often replaced by and private botanical collecting could needs concerning fire seem nonnative invasive species better suited exacerbate the extirpation threat to the contradictory; a total lack of fire for long to the new fire regime (Keane et al. species due to botanists favoring rare or periods is undesirable, because the fires 2002, p. 9). declining species (63 FR 54938, October that eventually occur can be 13, 1998). However, we are not catastrophic, yet re-introduction of fire Some fire management is provided by currently aware of any interest by (either accidentally or purposefully) is California Department of Forestry and botanists in collecting M. viminea. also undesirable, because such fire often Fire Protection (CAL FIRE), which is becomes catastrophic (megafire) as a both an emergency response and Therefore, we do not believe that result of high fuel loads due to previous resource protection agency. Though overutilization for commercial, recreational, scientific, or educational lack of fire. This paradox has resulted CAL FIRE has signed a document to purposes constitutes a threat to this from a disruption of the natural fire assist in management of backcountry species now or in the future. regime. areas in San Diego County, including Fire frequency has increased in North Sycamore Canyon Preserve with its C. Disease or Predation American Mediterranean shrublands Monardella viminea occurrence since about the 1950s, and studies Neither disease nor predation was (Department of Parks and Recreation known to be a threat affecting indicate that southern California has the (DPR) 2009, p. 14; County of San Diego greatest increase in wildfire ignitions, Monardella linoides ssp. viminea at the 2011a, p. 1), the land protected under primarily due to an increase in time of listing (63 FR 54938, October 13, this agreement makes up only 2 percent population density beginning in the 1998). Volunteers have since noted 1960s, thus increasing the number of of all M. viminea habitat. Therefore, browsing impacts to occurrences of M. human-caused fires (Keeley and although CAL FIRE provides a benefit to viminea in Lopez Canyon by rabbits and Fotheringham 2003, p. 240). Increased Sycamore Canyon Preserve and M. deer (Kelly and Burrascano 2001, p. 5). wildfire frequency and decreased fire viminea habitat, it does not alleviate the Monitors at MCAS Miramar reported return interval, in conjunction with threat to the species from type heavy herbivory in multiple canyons other effects of urbanization, such as conversion due to frequent fire. later in the season after much of the species’ growth had occurred (AMEC increased nitrogen deposition and Therefore, given the conversion of 2011, p. 4–9). Many or most seed heads habitat disturbance due to foot and coastal sage scrub to nonnative grasses were consumed by herbivores in Spring vehicle traffic, are believed to have and the changing fire regime of southern Canyon. However, as M. viminea resulted in the conversion of large areas California, we consider type conversion of coastal sage scrub to nonnative resprouts from perennial root crowns and the habitat effects of altered fire each year, herbivory is not likely to grasslands in southern California regime, particularly from increased (Service 2003b, pp. 57–62; Brooks et al. impact its survival or vigor (AMEC frequency of fire, to be a significant 2004, p. 677; Keeley et al. 2005, p. 2109; 2011, p. 5–1). Therefore, based on the threat to habitat supporting Monardella Marschalek and Klein 2010, p. 8). This best available scientific and commercial type conversion (conversion of one type viminea both now and in the future. information, neither disease nor of habitat to another) produces a Summary of Factor A herbivory constitutes a threat to M. positive feedback mechanism resulting viminea now or in the future. in more frequent fires and increasing Monardella viminea continues to be D. The Inadequacy of Existing nonnative plant cover (Brooks et al. threatened by habitat loss and Regulatory Mechanisms 2004, p. 677; Keeley et al. 2005, p. degradation by altered hydrological 2109). regimes that can result in uncontrollable At the time of listing, regulatory Threats to the habitat from fire flood events that negatively impact mechanisms that provided some exclusion, which impact processes that M. viminea by washing away plants, protection for Monardella linoides ssp. historically created and maintained increasing erosion of sandbars and viminea that now apply to M. viminea included: (1) The Act, in suitable habitat for Monardella viminea, secondary benches where cases where M. viminea co-occurred may make the species even more M. viminea grows, and increasing with a federally listed species; (2) the vulnerable to extinction. The long-term nonnative plant establishment. Habitat ecological effects of fire exclusion have California Endangered Species Act of this species is also threatened by an not been specifically detailed for M. (CESA); (3) the California unnatural fire regime resulting from viminea; however, we believe the effects Environmental Quality Act (CEQA); (4) of fire, fire suppression, and fire manmade disturbances and activities, conservation plans pursuant to management in southern California which in turn can accelerate invasion of California’s Natural Community habitats will be similar to those at the area by nonnative plants. Of the Conservation Planning (NCCP) Act; (5) locations in the Rocky, Cascade, and eight natural and four transplanted land acquisition and management by Sierra Nevada mountain ranges (Keane occurrences of M. viminea, those in Federal, State, or local agencies, or by et al. 2002, pp. 15–16). Fire exclusion in areas where continued development is private groups and organizations; (6) southern California habitat likely anticipated may experience further The Clean Water Act (CWA); and (7) affects: (1) Nutrient recycling, (2) alterations to their hydrology and local laws and regulations. The listing natural regulation of succession via unnatural fire regimes. These threats to rule analyzed the potential level of selecting and regenerating plants, (3) M. viminea habitat are occurring now protection provided by these regulatory biological diversity, (4) biomass, (5) and are expected to continue into the mechanisms (63 FR 54938, October 13, insect and disease populations, (6) future. 1998).

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Currently, Monardella linoides ssp. Department of Defense was required to p. 7–8). This plan mandates control viminea is listed as endangered under work with Federal and State fish and measures for invasive species through a the Act (63 FR 54938, October 13, 1998). wildlife agencies to prepare an combination of measures, including Provisions for its protection and integrated natural resources pesticides and mechanical removal recovery are outlined in sections 4, 7, 9 management plan (INRMP) for each (National Invasive Species Council and 10 of the Act. This law is the facility with significant natural 2001, p. 37), thus providing a benefit by primary mechanism for protecting M. resources. The INRMPs provide a addressing type conversion that results viminea, which, as part of the original planning tool for future improvements; following fires (see Factor A above). It listed entity, currently retains protection provide for sustainable multipurpose also provides wildland fire use of the resources, including activities under the Act. However, the protections management, including creation of such as hunting, fishing, trapping, and afforded to M. viminea under the Act as fuelbreaks, a prescribed burning plan, non-consumptive uses; and allow some part of M. linoides ssp. viminea, the and research on the effects of wildfire currently listed entity, would continue public access to military installations. on local habitat types (Gene Stout and to apply only if we determine to retain At MCAS Miramar and other military Associates 2011, pp. 7–9–7–10). As a listed status for M. viminea. Therefore, installations, INRMPs provide direction for purposes of our analysis, we do not for project development and for the result, MCAS Miramar is addressing include the Act as an existing regulatory management, conservation, and threats related to the potential stress of mechanism that protects M. viminea. rehabilitation of natural resources, fire on individual plants (see Factor E We do note that M. viminea would including Monardella viminea and its discussion, below). Despite the benefits likely continue to receive protection habitat. to M. viminea provided through the indirectly through HCPs approved Approximately 70 percent of the INRMP, the species continues to decline under section 10 of the Act and Natural remaining habitat for Monardella on MCAS Miramar, likely due to the Community Conservation Plans (NCCPs) viminea occurs within MCAS Miramar. synergistic effects of flood, reduced approved by the State of California that The Marine Corps completed an INRMP shrub numbers, and exotic species will cover M. viminea even if the (2011–2015) with input from the Service encroachment (type conversion) species is not federally listed. (Gene Stout and Associates et al. 2011, following the 2003 Cedar Fire (Tierra p. ES–2). This new INRMP, which Data 2011, p. 26). Federal Protections replaces the 2006–2010 version, National Environmental Policy Act continues to benefit the species by Clean Water Act (CWA) (NEPA) spatially and temporally protecting known populations on MCAS Miramar, Under section 404 of the CWA (33 All Federal agencies are required to most of which are not fragmented. Over U.S.C. 1251 et seq.), the U.S. Army adhere to the National Environmental 99 percent of all M. viminea occurrences Corps of Engineers (Corps) regulates the Policy Act (NEPA) of 1969 (42 U.S.C. on the base occur in Level I or II discharge of fill material into waters of 4321 et seq.) for projects they fund, management areas, where conservation the United States, which include authorize, or carry out. The Council on of listed species, including M. viminea, navigable and isolated waters, Environmental Quality’s regulations for is a priority (Gene Stout and Associates headwaters, and adjacent wetlands (33 implementing NEPA (40 CFR 1500– et al. 2011, pp. 5–2, Table 5–1). It U.S.C. 1344). In general, the term 1518) state that in their environmental should also be noted that Table 5–1 ‘‘wetlands’’ refers to areas meeting the impact statements, agencies shall states that only 85 percent of areas Corps’ criteria of hydric soils, hydrology include a discussion on the identified as essential habitat in the (either sufficient annual flooding or environmental impacts of the various 2006 critical habitat rule for M. viminea water on the soil surface), and project alternatives (including the (71 FR 65662, November 8, 2006) fall hydrophytic vegetation (plants proposed action), any adverse within Level I and Level II management specifically adapted to growing in environmental effects that cannot be areas; however, this may be due to avoided, and any irreversible or wetlands). Monardella viminea occurs mapping techniques used by the Service exclusively in ephemeral streambeds, irretrievable commitments of resources in that rule. We acknowledge that which episodically experience seasonal involved (40 CFR 1502). NEPA itself is MCAS Miramar does protect virtually flows that typically create the a disclosure law that provides an all known occurrences in Level I or II opportunity for the public to submit management areas and that our mapping conditions that meet the Corps’ criteria comments on a particular project and techniques occur on a broad scale. for wetlands. propose other conservation measures Further, we believe our revised critical Any human activity resulting in that may directly benefit listed species; habitat boundaries described in this rule discharge of dredged or fill material into however, it does not impose substantive better represent habitat essential to M. waters of the United States, including environmental mitigation obligations on viminea (see Criteria Used to Identify wetlands, requires a permit from the Federal agencies. Any such measures Critical Habitat below). Corps. These include individual permits are typically voluntary in nature and are MCAS Miramar manages invasive that are issued following a review of an not required by the statute. Activities on species, a significant threat to individual application and general non-Federal lands are also subject to Monardella viminea, in compliance permits that authorize a category or with Executive Order 13112, which NEPA if there is a Federal nexus. categories of activities in a specific states that Federal agencies must geographical location or nationwide (33 Sikes Act provide for the control of invasive In 1997, section 101 of the Sikes Act species (Gene Stout and Associates et al. CFR parts 320–330). As Monardella (16 U.S.C. 670a(a)) was revised by the 2011, p. 7–3). Invasive species viminea requires a natural hydrological Sikes Act Improvement Act to authorize management is a must-fund project to be regime to grow and persist, the the Secretary of Defense to implement a carried out annually, following regulation of discharge could prevent program to provide for the conservation guidelines established in the National those flows from being interrupted or and rehabilitation of natural resources Invasive Species Management Plan altered, thus providing a benefit to the on military installations. To do so, the (Gene Stout and Associates et al. 2011, species and its habitat.

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State and Local Regulations provided the landowner notifies CDFG Protection of listed species through California’s Native Plant Protection Act at least 10 days in advance of the CEQA is, therefore, dependent upon the (NPPA) and Endangered Species Act change. These exemptions indicate that discretion of the lead agency involved. CESA and NPPA may be inadequate to (CESA) California’s Natural Community protect Monardella viminea and its Conservation Planning (NCCP) Act Under provisions of the California habitat, including from activities such Native Plant Protection Act (NPPA) as development or urbanization, altered The NCCP program is a cooperative (California Fish and Game (CFG) Code, hydrology, or fuel modification. effort between the State of California division 2, chapter 10, section 1900 et and numerous private and public seq.) and CESA (CFG code, division 3, California Environmental Quality Act partners with the goal of protecting chapter 1.5, section 2050 et seq.), the (CEQA) habitats and species. An NCCP CDFG Commission listed Monardella CEQA (Public Resources Code 21000– document identifies and provides for linoides ssp. viminea as endangered in 21177) and the CEQA Guidelines the regional or areawide protection of 1979. Currently, the State of California (California Code of Regulations, title 14, plants, animals, and their habitats, recognizes the State-listed entity as M. division 6, chapter 3, sections 15000– while allowing compatible and viminea. 15387) require State and local agencies appropriate economic activity. The Both CESA and NPPA include to identify the significant environmental program began in 1991, under the prohibitions forbidding the ‘‘take’’ of impacts of their actions and to avoid or State’s NCCP Act (CFG Code 2800– State endangered and threatened species mitigate those impacts, if feasible. 2835). The primary objective of the (CFG code, chapter 10, section 1908 and CEQA applies to projects proposed to be NCCP program is to conserve natural chapter 1.5, section 2080). Under NPPA, undertaken or requiring approval by communities at the ecosystem scale landowners are exempt from this State and local government agencies. while accommodating compatible land prohibition for take of plants in the The lead agency must complete the uses (http://www.dfg.ca.gov/habcon/ process of habitat modification. When environmental review process required nccp/). Regional NCCPs provide landowners are notified by the State that by CEQA, including conducting an protection to federally listed species, a rare or endangered plant is growing on initial study to identify the and often unlisted species, by their land, the landowners are required environmental impacts of the project conserving native habitats upon which to notify CDFG 10 days in advance of and determine whether the identified the species depend. Many NCCPs are changing land use in order to allow impacts are significant. If significant developed in conjunction with HCPs salvage of listed plants. Sections 2081(b) impacts are determined, then an prepared pursuant to the Act. The City and (c) of CESA allow CDFG to issue environmental impact report must be and County of San Diego Subarea Plans incidental take permits (ITPs) for State- prepared to provide State and local under the MSCP are discussed below. agencies and the general public with listed threatened species if: City of San Diego and County of San detailed information about the (1) The authorized take is incidental Diego Subarea Plans Under the Multiple potentially significant environmental to an otherwise lawful activity; Species Conservation Plan (MSCP) (2) The impacts of the authorized take effects (California Environmental are minimized and fully mitigated; Resources Evaluation System 2010). The MSCP is a regional HCP and (3) The measures required to ‘‘Thresholds of Significance’’ are NCCP that has been in place for over 14 minimize and fully mitigate the impacts comprehensive criteria used to define years. Under the umbrella of the MSCP, of the authorized take are roughly environmentally significant impacts each of the 12 participating proportional in extent to the impact of based on quantitative and qualitative jurisdictions, including the City of San the taking of the species, maintain the standards, and include impacts to Diego and the County of San Diego, is applicant’s objectives to the greatest biological resources such as candidate, required to prepare a subarea plan that extent possible, and are capable of sensitive, or special status species in implements the goals of the MSCP successful implementation; local or regional plans, policies, or within that particular jurisdiction. The (4) Adequate funding is provided to regulations, or by CDFG or the Service; MSCP covers 582,243 ac (235,625 ha) implement the required minimization or any riparian habitat or other sensitive within the county of San Diego. Habitat and mitigation measures and to monitor natural community identified in local or conservation plans and multiple species compliance with and the effectiveness regional plans, policies, regulations, or conservation plans approved under of the measures; and by CDFG or the Service (CEQA section 10 of the Act are intended to (5) Issuance of the permit will not Handbook, Appendix G, 2010). Defining protect covered species by avoidance, jeopardize the continued existence of a these significance thresholds helps minimization, and mitigation of State-listed species. ensure a ‘‘rational basis for significance impacts. The relationship between NPPA and determinations’’ and provides support The MSCP Subarea Plan for the City CESA has not been clearly defined for the final determination and of San Diego includes Monardella under State law. NPPA, which has been appropriate revisions or mitigation viminea (referred to as M. linoides ssp. characterized as an exception to the take actions to a project in order to develop viminea) as a covered species. prohibitions of CESA, exempts a a mitigated negative declaration rather Furthermore, the most recent revision of number of activities from regulation, than an environmental impact report the rare plant monitoring review lists M. including clearing land for agricultural (Governor’s Office of Planning and viminea as a recognized narrow practices or fire control measures; Research 1994, p. 5). Under CEQA, endemic (McEachern et al. 2007, p. 33). removing endangered or rare plants projects may move forward if there is a The changes mentioned in that report when done in association with an statement of overriding consideration. If have been adopted into the City of San approved timber harvesting plan, or significant effects are identified, the Diego’s monitoring plan. The City of mining work performed pursuant to lead agency has the option of requiring San Diego Subarea Plan affords Federal or State mining laws or by a mitigation through changes in the additional protections to narrow public utility providing service to the project or deciding that overriding endemic species beyond those provided public; or changing land use in a considerations make mitigation generally for all covered species (City of manner that could result in take, infeasible (CEQA section 21002). San Diego 1997, p. 100). Impacts to

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narrow endemic species within the topographic character of the area, Summary of Factor D plan’s Multi-Habitat Planning Area encourages a sensitive form of (MHPA) are avoided, while outside the development, retains biodiversity and In determining whether Monardella MHPA, impacts to narrow endemic interconnected habitats, maximizes viminea should be retained as a listed species are addressed through physical and visual public access to and species under the Act, we analyzed the avoidance, management, enhancement, along the shoreline, and reduces adequacy of existing regulatory or transplantation to areas identified for hazards due to flooding in specific areas mechanisms without regard to current protections afforded under the Act. The preservation (City of San Diego 1997, p. while minimizing the need for majority (greater than 70 percent) of M. 100). The MHPA was developed by the construction of flood control facilities,’’ viminea occurrences are on MCAS City of San Diego in cooperation with thus providing protection against Miramar. The base has developed and is partners to target core biological alteration of hydrology, a significant implementing an INRMP under the resource areas for conservation (City of threat to M. viminea. The ESL was San Diego 1997, p. 1). Currently, all M. Sikes Act that provides a benefit to M. designed as an implementing tool for viminea occurrences within the City of viminea by protecting these occurrences the City of San Diego Subarea Plan (City San Diego, with the exception of one (see discussion under Factor E), and transplanted occurrence, are within the of San Diego 1997, p. 98). addressing threats from type conversion boundaries of the MHPA. However, as A monitoring plan was developed for due to increased fire frequency from of January 2011, less than 20 percent of the city-owned land within West historical conditions (see discussion all M. viminea occurrences were in the Sycamore Canyon. This land, a total of under Factor A). However, City of San Diego MSCP plan area 21 ac (9 ha), was included in the notwithstanding the benefit to M. (Service 2008, p. 10). Sycamore Estates development project. viminea provided by the INRMP, the The majority of the other extant This plan included monitoring of synergistic effects of flood, reduced occurrences of Monardella viminea are Monardella viminea occurrences within shrub numbers, increased fire on lands owned by MCAS Miramar, West Sycamore Canyon and provisions frequency, and nonnative species with small numbers of clumps occurring to prevent altered hydrology to areas encroachment are resulting in a decline on private and county-owned lands. containing M. viminea through of M. viminea on the base (see Occurrences in Lopez and Sycamore construction of silt fences to prevent discussion under Factor E). While the Canyons have been protected in MSCP erosion and subsequent alteration of INRMP does not eliminate threats to the reserves and are annually monitored channel structure (T&B Planning species from megafire, we do not believe (City of San Diego 2010a, p. 1). Consultants 2001, pp. 136, 166). that megafire can be eliminated through However, the management plan for the However, Sycamore Estates was never regulatory mechanisms. City of San Diego MSCP Subarea Plan has not been finalized; thus, long-term completed (see Factor A), and no The majority of Monardella viminea management and monitoring provisions monitoring has taken place yet in West occurrences outside of MCAS Miramar for M. viminea are not in place for all Sycamore Canyon. Therefore, the plan are located on land owned by the City areas where the species occurs. A draft addressing construction on Sycamore of San Diego and receive protection plan was previously created for West Estates is not currently protecting M. under the City of San Diego Subarea Sycamore Canyon, and a draft plan for viminea. Plan under the MSCP, which was Spring Canyon is currently in The County of San Diego MSCP approved under CESA and the NCCP Act. The City of San Diego Subarea Plan development. The plan for West Subarea Plan covers 252,132 ac (102,035 provides protective mechanisms for M. Sycamore Canyon was not finalized ha) of unincorporated county lands in viminea for proposed projects; these because construction and subsequent the southwestern portion of the MSCP protective mechanisms are intended to impacts did not take place. Should plan area. Only 2 percent of Monardella address potential impacts that could construction go forward, which is not viminea habitat occurs on lands within anticipated at this time, the same threaten the species, such as the boundaries of the County of San development or actions that could result restrictions would still apply and assist Diego Subarea Plan. The entirety of this in reducing any impacts posed by in altered hydrology. The City of San habitat is included within the Sycamore Diego Subarea Plan also includes construction activities. Additionally, a Canyon Preserve established under the Natural Resource Management Plan has provisions for monitoring and County of San Diego MSCP Subarea management through development of been finalized for Los Pen˜ asquitos Plan. In 2009, a management plan was Canyon Preserve (EO 1) (City of San location-specific management plans for published for the preserve, with preserve land. However, the City of San Diego 1998). However, even though this monitoring anticipated to begin in 2013 plan and the monitoring reports Diego Subarea Plan has not developed (County of San Diego 2011b, pp. 4–5). frequently identify management needs final monitoring and management plans The plan specifically addresses M. for M. viminea, the actions are not for Monardella viminea. As a result, viminea through removal of nonnative carried out on a regular basis to decrease even though occurrences of M. viminea threats to the plants such as nonnative vegetation, habitat restoration, and are monitored on a yearly basis and vegetation encroachment and altered implementation of a managed fire management needs for M. viminea hydrology. regime with a priority of protecting habitat are identified, conservation Within the City of San Diego MSCP biological resources (DPR 2009, pp. 71, measures to ameliorate immediate and Subarea Plan, further protections are 76–77). Additionally, the plan mandates significant threats from nonnative afforded by the Environmentally management to address the ‘‘natural species and alteration of hydrology are Sensitive Lands (ESL) ordinance. The history of the species and to reduce the not actively being implemented because ESL provides protection for sensitive risk of catastrophic fire,’’ possibly the management plans are not yet in biological resources (including including prescribed fire (DPR 2009, p. place. With regard to lands covered by Monardella viminea and its habitat) by 71). These measures address the stressor the County of San Diego Subarea Plan ensuring that development occurs, ‘‘in a of fire on individual plants (Factor E) (2 percent of the species’ habitat), manner that protects the overall quality and the threat of type conversion due to regulatory mechanisms are in place to of the resources and the natural and frequent fire (Factor A). conserve and manage M. viminea.

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Despite the protections afforded to events, are altered, native and nonnative have since been extirpated due to Monardella viminea under the Sikes Act plants can overcrowd otherwise suitable competition with nonnative grasses, through the INRMP for MCAS Miramar habitat for Monardella viminea construction, or unknown reasons and the protections afforded by the City (Kassebaum 2007, pers. comm.). At least (CNDDB 2011a). As stated earlier, only and County of San Diego Subarea plans four occurrences of M. viminea are eight occurrences remain. Currently, under the MSCP, we conclude that believed to have been extirpated since despite their protection on reserve existing regulatory mechanisms at this listing, due in part to invasion by native lands, many of the largest occurrences time are inadequate to alleviate the and nonnative plant species (CNDDB with multiple clumps and the threats to this species in the absence of 2011a; EOs 11, 12, 13, and 15). healthiest-looking leaves and flowers the protections afforded by the Act. Nonnative plants are present throughout continue to decline in number. all canyons on MCAS Miramar where In particular, small population size E. Other Natural or Manmade Factors M. viminea occurs, occupying areas that Affecting Its Continued Existence makes it difficult for Monardella could instead be colonized by M. viminea to persist while sustaining the Trampling viminea seedlings (Tierra Data 2011, p. impacts of fire, altered hydrological 29). Areas heavily invaded by nonnative Trampling was identified as a threat regimes, and competition with grasses have fewer adult M. viminea to Monardella linoides ssp. viminea in nonnative plants. Prior to the 2008 plants than areas free from invasion, the listing rule (63 FR 54938, October 5-year review, monitoring of the MCAS and areas that support adult plants have 13, 1998). Trampling of M. viminea Miramar occurrences indicated that the been reduced in size after the occurs via human travel through the population had declined significantly encroachment of nonnative species for unknown reasons that could not be species’ habitat. Monitors have noted (Tierra Data 2011, p. 29). Additionally, impacts to M. viminea in Spring Canyon clearly linked to the cumulative impacts an area where one occurrence of fire, herbivory, or hydrological from hikers and off-road vehicles monitored by the City of San Diego is (Friends of Los Pen˜ asquitos Canyon regimes (Rebman and Dossey 2006, p. located has undergone a rapid increase 14). Since the 2006 surveys by Rebman Preserve, Inc. 2011, p. 4), and from in nonnative plant cover from 26 mountain bike trails (AMEC 2011, p. 2– and Dossey at MCAS Miramar, plants percent in 2008, to 71 percent in 2010 damaged in the 2003 Cedar Fire have 5). However, these reports are only from (City of San Diego 2008, p. 1; City of San Spring Canyon, and there is no evidence resprouted from the root. Despite the Diego 2010a, p. 11). fact that plants have resprouted, that this threat is impacting the species A recent study found that seedling biological monitors at MCAS Miramar on a population level. Therefore, we do establishment was highest in areas report that the decline continues and not consider trampling to be a where nonnative vegetation was the cause is unknown, with 45 percent significant threat across the range of the reduced through management, of the population on MCAS Miramar species now or into the future. demonstrating that increased nonnative lost since 2002 (Kassebaum 2010, pers. Nonnative Plant Species ground cover can prevent the establishment of Monardella viminea comm.; Tierra Data 2011, p. 12), The listing rule identifies nonnative seedlings (AMEC 2011, p. ES–1). although some of this decline may be plants as a threat to Monardella linoides Due to the absence or alteration of attributed to changes in survey methods ssp. viminea (63 FR 54938, October 13, natural disturbance processes within the (Tierra Data 2011, pp. 20, 22). No 1998). This threat is ongoing for the range of Monardella viminea resulting empirical information is readily occurrences now considered to be M. in competition for space and nutrients, available to estimate the rate of viminea. San Diego County habitats increased fire intensity, and extirpation population decrease or time to have been altered by invasion of of M. viminea occurrences since listing, extinction for M. viminea; however, nonnative species (Soule et al. 1992, p. we consider nonnative plant species to both its habitat and population have 43). Nonnative grasses, which be a significant factor threatening the decreased in size since the time of frequently out-compete native species continued existence of the species, both listing. Therefore, based on the best for limited resources and grow more now and in the future. available scientific information, we quickly, can smother seedling and consider that small population size and mature M. viminea and prevent natural Small Population Size and Restricted the declining trend of M. viminea growth (Rebman and Dossey 2006, p. Range exacerbate the threats attributable to 12). Nonnative plants also have the The listing rule identifies the other factors. potential to lower water tables and alter restricted range and small population Fire rates of sedimentation and erosion by size of Monardella linoides ssp. viminea altering soil chemistry, nutrient levels, as threats (63 FR 54938, October 13, Although the habitat occupied by and the physical structure of soil. As 1998). These conditions increase the Monardella viminea is dependent upon such, they can often out-compete native possibility of extinction due to some form of disturbance (such as species such as M. viminea (Kassebaum stochastic (random) events that are periodic fire and scouring floods) to 2007, pers. comm.). Nonnative plants beyond the natural variability of the reset succession processes, we also alter the frequency, size, and ecosystem, such as floods, fires, or considered whether megafire events intensity of fires, including flame drought (Lande 1993, p. 912; 60 FR have the potential to severely impact or duration and length, soil temperature 40549, August 9, 1995). Chance or eliminate populations by killing large during a fire, and after-effects of long- stochastic events have occurred in the numbers of individual plants, their term porosity and soil glassification range of M. viminea, and may continue underground rhizomes (stems), and the (high heat causes silica particles in the to make M. viminea vulnerable to soil seed bank. Also, severe fire could soil to fuse together to form an extinction due to its small numbers and leave the soil under hydrophobic (water impermeable barrier) (Vitousek et al. limited range. Of the 20 occurrences of repellent) conditions, resulting in plants 1997, pp. 8–9; Arno and Fiedler 2005, M. viminea known at the time of listing, receiving an inadequate amount of p. 19). 5 had fewer than 100 individuals. None water (Agee 1996, pp. 157–158; Keeley When natural disturbance processes, of those smallest populations were 2001, p. 87; Keane et al. 2002, p. 8; Arno such as fire regime and storm flow protected at the time of listing, and all and Fiedler 2005, p. 19).

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Recently, San Diego County has been that type conversion due to altered fire models and emissions scenarios until impacted by multiple large fire events, regime and megafire is a threat to the about 2030. Thereafter, the projections a trend that is expected to continue due habitat that supports M. viminea. show greater divergence across to climate change. A model by Snyder scenarios. Despite these differences in Climate Change et al. (2002, p. 9–3) predicts higher projected magnitude, however, the average temperatures for every month in Consideration of climate change is a overall trajectory is one of increased every part of California, which would component of our analyses under the warming throughout this century under create drier, more combustible fuel Act. In general terms, ‘‘climate’’ refers to all scenarios, including those which types. Also, Miller and Schlegel (2006, the mean and variability of various assume a reduction of greenhouse gas p. 6) suggest that Santa Ana conditions weather conditions such as temperature emissions (Meehl et al. 2007, pp. 760– (characterized by hot dry winds and low or precipitation, over a long period of 764; Ganguly et al. 2009, pp. 15555– humidity) may significantly increase time (e.g., decades, centuries, or 15558; Prinn et al. 2011, pp. 527, 529). during fire season under global climate thousands of years). The term ‘‘climate Some of the IPCC’s other key global change scenarios. Small escaped fires change’’ thus refers to a change in the climate projections, which they have the potential to turn into large fires state of the climate (whether due to expressed using a framework for due to wind, weather conditions of natural variability, human activity, or treatment of uncertainties (e.g., ‘‘very temperature and humidity, lack of low- both) that can be identified by changes likely’’ is >90 percent probability; see intensity fires to reduce fuels, invasive in the mean or variability of its Solomon et al. 2007, pp. 22–23) include vegetation, and inadequate wildfire properties and that persists for an the following: (1) It is virtually certain control or prevention. For example, the extended period—typically decades or there will be warmer and more frequent October 2007 Harris Fire in San Diego longer (Intergovernmental Panel on hot days and nights over most of the County burned 20,000 ac (8,100 ha) Climate Change (IPCC) 2007a, p. 78). earth’s land areas; (2) it is very likely Changes in climate are occurring. The within 4 hours of ignition (California there will be increased frequency of global mean surface air temperature is Department of Forestry 2007, p. 57). warm spells and heat waves over most the most widely used measure of Another fire near Orange, California, land areas; (3) it is very likely that the climate change, and based on extensive turned into a large fire in less than 12 frequency of heavy precipitation events, analyses, the IPCC concluded that hours, and an unattended campfire set or the proportion of total rainfall from warming of the global climate system off the June 2007 Angora Fire near Lake heavy falls, will increase over most over the past several decades is Tahoe in northern California, which areas; (4) it is likely the area affected by ‘‘unequivocal’’ (IPCC 2007a, p. 2). Other spread 4 miles (6.4 kilometers) in its droughts will increase, that intense examples of climate change include first 3 hours, burned over 3,000 ac tropical cyclone activity will increase, substantial increases in precipitation in (1,200 ha) (USDA 2007, p. 1). and that there will be increased A narrow endemic (a species that some regions of the world and decreases in other regions (for these and other incidence of extreme high sea level occurs only in a very limited geographic (IPCC 2007b, p. 8, Table SPM.2). region), such as Monardella viminea, examples, see IPCC 2007a, p. 30; could be especially sensitive to megafire Solomon et al. 2007, pp. 35–54, 82–85). Various types of changes in climate events. One large fire could impact all Various environmental changes are can have direct or indirect effects on or a large proportion of the entire area occurring in association with changes in species, and these may be positive or where the species is found, as occurred climate (for global and regional negative depending on the species and in the 2003 Cedar Fire, where 98 examples, see IPCC 2007a, pp. 2–4, 30– other relevant considerations, including percent of M. viminea occurrences on 33; for U.S. examples, see Global interacting effects with habitat MCAS Miramar and portions of the Climate Change Impacts in the United fragmentation or other non-climate privately owned occurrences of States by Karl et al. 2009, pp. 27, variables (e.g., Franco et al. 2006; Sycamore Canyon burned. However, 79–88). Forister et al. 2010; Galbraith et al. despite the overlap of the Cedar Fire Most of the observed increase in 2010; Chen et al. 2011). Scientists are with M. viminea occurrences on MCAS global average temperature since the projecting possible impacts and Miramar, the decline of the burned mid-20th century cannot be explained responses of ecological systems, habitat occurrences was not as severe as by natural variability in climate, and is conditions, groups of species, and initially expected, as plants were later very likely due to the observed increase individual species related to changes in able to resprout from the root. in greenhouse gas concentrations in the climate (e.g., Deutsch et al. 2008; Berg Additionally, new juveniles and atmosphere as a result of human et al. 2009; Euskirchen et al. 2009; seedlings occurred primarily on lands activities, particularly emissions of McKechnie and Wolf 2009; Williams et burned by the 2003 Cedar Fire (Tierra carbon dioxide from fossil fuel use al., 2009; Sinervo et al. 2010; Beaumont Data 2011, p. 16). (IPCC 2007a, p. 5 and Figure SPM.3; et al. 2011). These and many other Given the increased frequency of Solomon et al. 2007, pp. 21–35). studies generally entail consideration of megafire within southern California Therefore, to project future changes in information regarding the following ecosystems, and the inability of temperature and other climate three main components of vulnerability regulatory mechanisms to prevent or conditions, scientists use a variety of to climate change: Exposure to changes control these fires, we find that megafire climate models (which include in climate, sensitivity to such changes, has the potential to impact occurrences consideration of natural processes and and adaptive capacity (IPCC 2007a, of Monardella viminea. However, given variability) in conjunction with various p. 89; Glick et al. 2011, pp. 19–22). M. viminea’s persistence through past scenarios of potential levels and timing Because aspects of these components fires and its ability to recover from of greenhouse gas emissions (e.g., Meehl can vary by species and situation, as can direct impact by fire, we do not find that et al. 2007 entire; Ganguly et al. 2009, interactions among climate and non- megafire is a significant threat to pp. 11555, 15558; Prinn et al. 2011, climate conditions, there is no single individual M. viminea plants now, nor pp. 527, 529). way to conduct our analyses. We use the is it likely to become a significant threat The projected magnitude of average best scientific and commercial data in the future. However, as noted in the global warming for this century is very available to identify potential impacts Factor A discussion above, we do find similar under all combinations of and responses by species that may arise

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in association with different plant count methods (City of San Diego vegetation. Furthermore, nonnative components of climate change, 2004, p. 67). density can become more severe if including interactions with non-climate Additionally, drier conditions may natural flows within a hydrological conditions as appropriate. result in increased fire frequency. As system decrease to the point where they Projected changes in climate and discussed under Factors A and E, this no longer scour nonnative grasses from related impacts can vary substantially could make the ecosystems in which secondary benches and sandbanks. We across and within different regions of Monardella viminea currently grows find that the synergistic effects of these the world (e.g., IPCC 2007a, pp. 8–12). more vulnerable to the threats of threats combined with reduced shrub Thus, although global climate subsequent erosion and invasive numbers have resulted in a population projections are informative and in some species. In a changing climate, decline across the range of Monardella cases are the only or the best scientific conditions could change in a way that viminea and the continued population information available, to the extent would allow both native and nonnative decline on MCAS Miramar. Therefore, possible we use ‘‘downscaled’’ climate plants to invade the habitat where M. the cumulative impacts of these threats projections that provide higher- viminea currently occurs (Graham 1997, may be even greater than the sum of resolution information that is more p. 10). their individual impacts and are a likely relevant to the spatial scales used to While we recognize that climate factor in the decline of this species. change and increased drought assess impacts to a given species Determination (see Glick et al. 2011, pp. 58–61 for a associated with climate change are discussion of downscaling). With regard important issues with potential effects We have carefully assessed the best to the area of analysis for Monardella to listed species and their habitats, the scientific and commercial information viminea, downscaled projections are not best available scientific information available regarding the past, present, and future threats to Monardella available, but many scientists believe does not currently give evidence viminea. In our analysis, we find that warmer, wetter winters and warmer, specific enough for us to formulate threats attributable to Factor A (The drier summers will occur within the accurate predictions regarding climate change’s effects on particular species, Present or Threatened Destruction, next century (Field et al. 1999, pp. 2– including Monardella viminea. Modification, or Curtailment of Its 3, 20). The impacts on species like Therefore, we do not consider global Habitat or Range) pose significant M. viminea, which depend on specific climate change a threat to M. viminea, threats to the species, particularly hydrological regimes, may be more now or in the future. through severe alteration of hydrology severe (Graham 1997, p. 2). in Carroll Canyon, Lopez Canyon, and Since approximately the time of Summary of Factor E western portions of San Clemente listing in 1998, an extended drought in Based on a review of the best Canyon. Type conversion and habitat the region (San Diego County Water available scientific and commercial data degradation due to frequent fire Authority (SDCWA) 2011, p. 2) has regarding trampling, nonnative plant represent significant and immediate created unusually dry habitat species, megafire, climate change, and threats to the species across its range. conditions. From 2001 to 2010, at one small population size and restricted Finally, we find that threats attributable of the closer precipitation gauges to the range, we find that nonnative plant to Factor E (Other Natural or Manmade species’ range (Lindberg Field, San species pose a significant threat to Factors Affecting Its Continued Diego County, California), 7 of 10 years Monardella viminea. Additionally, the Existence) represent significant threats had precipitation significantly below small population size and restricted to the species throughout its range, normal (SDCWA 2011, p. 2). This range of M. viminea could exacerbate particularly impacts from nonnative extended drought has cumulatively threats to the species. We find no plant species invading canyons where affected moisture regimes, riparian evidence that trampling or other natural M. viminea exists. Additionally, the habitat, and vegetative conditions in or manmade factors pose a significant small population size of M. viminea and around suitable habitat for threat to M. viminea, either now or into could exacerbate the threats to the Monardella viminea, and thus increased the future. We conclude, based on the species. Finally, despite protections the stress on individual plants. As best available scientific information, afforded to M. viminea by the City and stated above, predictions indicate that that M. viminea could be affected by fire County of San Diego Subarea Plans future climate change may lead to impacts associated with the death of under the MSCP and the INRMP at similar, if not more severe, drought individual plants; however, we do not MCAS Miramar, we find that other conditions. consider this a significant threat to the existing regulatory mechanisms as The predicted future drought could continued existence of the species. described under Factor D (The impact the dynamic of the streambeds Finally, with regard to the direct and Inadequacy of Existing Regulatory where Monardella viminea grows. Soil indirect effects of climate change on Mechanisms) would not provide moisture and transportation of individual M. viminea plants and its protections adequate to alleviate threats sediments by downstream flow have habitat, we have no information at this to M. viminea in the absence of the Act. been identified as key habitat features point to demonstrate that predicted We find no threats attributable to Factor required by M. viminea. The species is climate change poses a significant threat B (Overutilization for Commercial, characterized as being associated with to the species either now or in the Recreational, Scientific, or Educational areas of standing water after rainfall future. Purposes), or Factor C (Disease or (Elvin and Sanders 2003, p. 426). Predation) impacting the species. Monitors for the City of San Diego have Cumulative Impacts All threats impacting the species observed decreased plant health and Several of the threats discussed in this could be exacerbated by the ongoing increased dormancy of Monardella finding have the potential to work in decline of the species and the small size species in years with low rainfall (City concert with each other. For example, as of the few occurrences that remain. of San Diego 2003, p. 3; City of San discussed under Factor A, increased fire Since the recent taxonomic revision of Diego 2004, p. 3). Specific analyses of frequency in habitats supporting Monardella linoides ssp. viminea into population trends as correlated to Monardella viminea can lead to an two separate species, we now know that rainfall are difficult due to inconsistent increased density of nonnative both the number of clumps and the

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limited geographic range of M. viminea of these documents included Sand and Gravel Mining are substantially smaller than originally discussions regarding M. linoides ssp. thought, as two occurrences known at viminea, without separation or Sand and gravel mining activities the time of listing are now considered recognition of M. stoneana or M. were identified as threats to Monardella to be M. stoneana. Natural occurrences viminea. Below, each of the five listing linoides ssp. viminea in the 1998 listing of M. viminea now occur in only six factors is discussed for M. stoneana rule and the recent 5-year review (63 FR watersheds in a very limited area of San specifically. 54938, October 13, 1998; Service 2008). Diego County. As was the case for urban development, The Act defines an endangered A. The Present or Threatened the threats described in the 1998 listing species as any species that is ‘‘in danger Destruction, Modification, or rule apply only to those occurrences of extinction throughout all or a Curtailment of Its Habitat or Range now attributable to M. viminea. We are significant portion of its range’’ and a not aware of any historical mining that Urbanization/Development threatened species as any species ‘‘that has impacted occurrences of is likely to become endangered The original listing rule identified M. stoneana, nor are we aware of any throughout all or a significant portion of urban development as one of the most plans for future mining activities that its range within the foreseeable future.’’ important threats to Monardella linoides may impact the species. Therefore, we Given the immediacy and magnitude of ssp. viminea (63 FR 54938, October 13, believe that sand and gravel mining continuing significant threats, the rapid 1998). However, the urbanization and activities do not pose a threat to the population decline (particularly the development threats described in the continued persistence of M. stoneana. decline of approximately 45 percent of the population on MCAS Miramar since 1998 listing rule apply only to those Altered Hydrology 2002), and the species’ limited range occurrences now attributable to and small population size, we find that M. viminea. The original listing rule identified Monardella viminea continues to be in Within the United States, Monardella altered hydrology as a threat to danger of extinction throughout its stoneana occurs almost entirely on Monardella linoides ssp. viminea (63 FR range. Therefore, M. viminea will publicly owned land managed by the 54938, October 13, 1998). Monardella continue to be listed as an endangered Bureau of Land Management (BLM) viminea depends on a natural species under the Act. (approximately 34 percent), CDFG hydrological regime to maintain the secondary alluvial benches and Significant Portion of Range (approximately 55 percent), and the City of San Diego (approximately 7 percent). streambeds on which it grows (Scheid The Act defines ‘‘endangered species’’ The last 4 percent (6 acres (2 hectares)) 1985, pp. 30–31, 34–35); we believe the as any species which is ‘‘in danger of of habitat supporting M. stoneana is closely related M. stoneana does as extinction throughout all or a significant privately owned land within the well. Upstream development can portion of its range,’’ and ‘‘threatened boundaries of the County of San Diego’s disrupt this regime by increasing storm species’’ as any species which is ‘‘likely runoff, which can result in erosion of MSCP subarea plan and is slated for to become an endangered species within the stream banks and rocky cobble upon inclusion in the Otay Ranch Preserve. the foreseeable future throughout all or which M. stoneana grows. Floods also These occurrences are collectively a significant portion of its range.’’ The have the potential to wash away plants protected from habitat destruction or definition of ‘‘species’’ is also relevant as large as and much larger than M. modification due to urban development to this discussion. The Act defines the stoneana, as has occurred with term ‘‘species’’ as follows: ‘‘The term because they are conserved and M. viminea in Lopez Canyon (Kelly and ‘species’ includes any subspecies of fish managed within the BLM’s Otay Burrascano 2001, pp. 2–3). On the other or wildlife or plants, and any distinct Mountain Wilderness and the City of hand, decreased flows increase the population segment [DPS] of any San Diego’s or CDFG’s preserves under possibility of invasion by nonnative species of vertebrate fish or wildlife the MSCP, or they will be conserved as species into the creek bed, which can which interbreeds when mature.’’ The part of the Otay Ranch Preserve under smother seedling and mature plants and phrase ‘‘significant portion of its range’’ the County of San Diego’s MSCP disrupt growth processes (Rebman and (SPR) is not defined by the statute, and subarea plan. This situation contrasts Dossey 2006, p. 12). we have never addressed in our with M. viminea occurrences conserved regulations: (1) The consequences of a by the City of San Diego that do not Habitat characteristics for Monardella stoneana have not been described in determination that a species is either have management plans (see also Factor detail, but, as with M. viminea, endangered or likely to become so D discussion for M. stoneana below and alteration of hydrology may disrupt the throughout a significant portion of its Factor D discussion for M. viminea natural processes and habitat range, but not throughout all of its above). We have no information about characteristics that support M. stoneana. range; or (2) what qualifies a portion of the distribution, land ownership, or Monardella stoneana reportedly, ‘‘most a range as ‘‘significant.’’ In this rule, we status of M. stoneana populations in often grows among boulders, stones, and list Monardella viminea throughout its Mexico. entire range; therefore, a discussion of in cracks of the bedrock of these Based on the lack of threats from significant portion of its range is intermittent streams in rocky gorges’’ unnecessary. development on land currently (Elvin and Sanders 2003, p. 429), which occupied by M. stoneana, we do not suggests the habitat of M. stoneana may Summary of Factors Affecting believe that urban development is a be largely resistant to erosion events. Monardella stoneana threat to this species now or in the More importantly, given the lack of As stated above in the Summary of future, within the United States. While urban development in the Otay area Factors Affecting Monardella viminea we are not aware of any proposed where the majority of the plants occur, section, the original listing rule for M. development in areas occupied by M. substantial alteration of hydrology has linoides ssp. viminea contained a stoneana in Mexico, we are also not not occurred to date and is not expected discussion of these five factors, as did aware of the extent of the species’ to occur in the future, and thus is not the 2008 5-year review. However, both distribution there. a threat to M. stoneana.

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Fire and Type Conversion stoneana. For the past decade, the City other M. stoneana occurrences on Otay As discussed under Factor A for of San Diego has been monitoring the Mountain or near Tecate Peak, we Monardella viminea, our understanding occurrences of M. stoneana on City would expect the results to be similar to of the role of fire in fire-dependent lands, documenting their general those from the Marron Valley and Otay habitat has changed since the time of habitats, and assessing disturbances and Lakes occurrences, as they occur in the listing, and the intensity of wildfire and threats. In the City of San Diego 2006 same or similar habitat types (San Diego frequency of megafire has increased report, the Otay Lakes occurrence of M. Association of Government (SANDAG) compared to historical regimes. stoneana (one clump comprised of two 1995). Zedler et al. (1983, p. 816) concluded However, M. stoneana is associated individuals) was reported as having that short-interval fires on Otay with different habitat types than ‘‘fair to good’’ habitat, with monitors noting that threats occurred, such as Mountain will lead to an increase in M. viminea. While M. viminea occurs in herbs and subshrubs, such as coastal sage scrub and riparian scrub, encroachment of tamarisk (Tamarisk spp.) and other nonnative plants (10 Monardella stoneana, given that the M. stoneana is found primarily in ‘‘common pattern after chaparral fires, chaparral habitats. percent cover), and paths created and used by illegal immigrants (City of San like that of 1979 [on Otay Mountain], is Chaparral is more resilient to the for native and introduced annual herbs effects of frequent fire than coastal sage Diego 2006, p. 8). This occurrence was lost after the 2006 survey, as described to dominate for the 1st yr [sic] and then scrub, due to strong recruitment and gradually decline as the cover of shrub effective germination after repeated fire in the New Information on Occurrences of Monardella viminea and Monardella and subshrubs inceases [sic].’’ events (Keeley 1987, p. 439; Tyler 1995, Additionally, monitoring data for p. 1009). According to Keane et al. stoneana section of this final rule. Although the 2008 and 2010 survey M. stoneana have not recorded the same (2008, p. 702), chaparral is considered a rapid increases in nonnative vegetation crown-fire ecosystem, meaning an reports for the Otay Lakes site describe habitat disturbances such as type as have occurred in habitat where M. ecosystem that has ‘‘mechanisms for viminea grows (City of San Diego 2008, recovery that include resprouting from conversion due to increased fire frequency and invasive species p. 1; City of San Diego 2009, p. 1). While basal burrs and long-lived seed banks several M. viminea occurrences have that are stimulated to germinate by fire.’’ (particularly nonnative grasses) (City of San Diego 2008, p. 2; City of San Diego been extirpated due to invasion of These ecosystems are also resilient to nonnative vegetation (see Factor A high-intensity burns (Keeley et al. 2008, 2010a, p. 5), the surveys also indicate that the percent cover of native species discussion for M. viminea above), no p. 1545). occurrences of M. stoneana have been The fire regime in Baja California, has increased from 2008 to 2010 (from 23 to 42 percent) and the percent cover similarly affected. Mexico, where some Monardella Illegal immigration is another of nonnative species has increased (from stoneana occurs, has not been altered by potential source of fire within 30 to 44 percent) (City of San Diego the fire suppression activities that have Monardella stoneana habitat. However, 2008, p. 1; City of San Diego 2010a; p. occurred in the United States. Some the Otay Mountain area is 5). The most recent survey report (2010) researchers claim that the chaparral predominantly wilderness area and described the habitat at this site as ‘‘fair habitat in Baja California is thus not preserve, and is unlikely to receive an to good’’ (City of San Diego 2010a, p. affected by megafires that result from increase in visitors. Furthermore, in 254). fire suppression activities (Minnich and 2007, construction of the fence along the Chou 1997, pp. 244–245; Minnich 2001, For the Marron Valley site, the MSCP U.S. and Mexico border and other pp. 1549–1552). Nevertheless, Keeley Rare Plant Field Surveys conducted by enforcement activities in the Otay and Zedler (2009, p. 86) believe that the the City of San Diego recorded 95 Mountain Wilderness area have reduced fire regime in Baja California mirrors individuals of Monardella linoides ssp. illegal immigrant activity in this area to that of Southern California, similarly viminea (now M. stoneana) in its 2006 near zero (Ford 2011, pers. comm.), consisting of ‘‘small fires punctuated at survey report; survey results from 2008 thereby reducing the likelihood of fire periodic intervals by large fire events.’’ to 2010 were unchanged (City of San ignition by this source. Therefore, fire Therefore, we expect that impacts from Diego 2010b, p. 2). Habitat at the Marron ignition due to illegal immigrant fire in Baja California will be similar to Valley site was characterized as ‘‘fair to activities is not a significant threat to those in San Diego County. good’’ from 2008 through 2010 (City of M. stoneana now, nor is it likely to Despite the resiliency of chaparral San Diego 2008, p. 2; City of San Diego become so in the future. ecosystems to fire events, chaparral, like 2010a, p. 11), and improving to ‘‘good Fire remains a stressor to Monardella coastal sage scrub, has been to very good’’ in 2011 (City of San Diego stoneana habitat and many other experiencing type conversion in many 2011a, p. 217). As with the Otay Lakes sensitive habitats throughout southern areas of southern California. As with location, type conversion due to California. On land owned and managed coastal sage scrub, chaparral habitat is frequent fire (as described in Factor A) by the CDFG and BLM, which contain also being invaded by nonnative species and invasion of nonnative grasses was approximately 88 percent of all (Keeley 2006, p. 379). Nonnative grasses described as a disturbance or stressor to occurrences of M. stoneana, fire sprout more quickly after a fire than the M. stoneana habitat (City of San management is provided by CAL FIRE. chaparral species, and when fire occurs Diego 2008, p. 2; City of San Diego 2009, CAL FIRE’s mission is the protection of more frequently than the natural p. 2). Nonetheless, recent surveys lives, property, and natural resources historic regime, nonnative grasses have indicate that the ground cover by native from fire, and the preservation of a greater chance to become established species at the Marron Valley site (EO 1) timberlands, wildlands, and urban and outcompete native vegetation has increased from 2008 to 2010 (from forests. CAL FIRES’s protection (Keeley 2001, pp. 84–85). 26 to 32 percent), while the ground strategies incorporate concepts of the Monitoring data from the MSCP Rare cover by nonnative species has also National Fire Plan, the California Fire Plant Field Surveys by the City of San increased (from 15 to 22 percent) (City Plan, individual CAL FIRE Unit Fire Diego indicate that type conversion is of San Diego 2008, p. 1; City of San Plans, and Community Wildfire not taking place in chaparral habitats Diego 2010a, p. 5). While no habitat Protection Plans (CWPPs). Fire surrounding occurrences of Monardella assessment surveys are available for Protection Plans outline the fire

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situation within each CAL FIRE Unit botanists in collecting plans approved under section 10 of the with descriptions of water supplies, fire M. stoneana. Therefore, we do not Act and NCCPs approved under the safety, and vegetation management, believe that overutilization for State of California that will cover M. while CWPPs make the same assessment commercial, recreational, scientific, or stoneana even if the species is not on the community level (CAL FIRE educational purposes constitutes a federally listed. 2011, p. 1; County of San Diego Fire threat to this species, either now or in Safe Council, 2011). Planning includes the future. Federal Regulations other State, Federal, and local National Environmental Policy Act C. Disease or Predation government agencies as well as Fire Safe (NEPA) Councils (CAL FIRE 2011, p. 1). CAL Neither disease nor predation was known to be a threat affecting All Federal agencies are required to FIRE typically takes the lead with regard adhere to NEPA for projects they fund, to planning for megafire prevention, Monardella linoides ssp. viminea at the time of listing (63 FR 54938, October 13, authorize, or carry out. The Council on management, and suppression, and is in Environmental Quality’s regulations for charge of incident command during a 1998). Data from the CNDDB (CNDDB 2011b) list herbivory as a potential implementing NEPA (40 CFR 1500– wildfire. 1518) state that in their environmental The San Diego County Fire Authority threat to the M. stoneana occurrence impact statements agencies shall (SDCFA), local governments, and CAL located on the Otay Ranch Preserve (EO include a discussion on the FIRE cooperatively protect 1.42 million 4). However, we have no other environmental impacts of the various ac (0.6 million ha) of land with 54 fire information quantifying the extent of stations throughout San Diego County this herbivory or its impact on the M. project alternatives (including the (County of San Diego 2011a, p. 1). stoneana occurrence. Like M. viminea, proposed action), any adverse Wildfire management plans and M. stoneana resprouts from a perennial environmental effects which cannot be associated actions can help to reduce root crown each year, a trait that allows avoided, and any irreversible or the impacts of type conversion due to it to persist through herbivory events irretrievable commitments of resources frequent fire on natural resources, (AMEC 2011, p. 5–1). Therefore, based involved (40 CFR 1502). NEPA itself is including Monardella stoneana. on the best available scientific and a disclosure law that provides an Therefore, based on the best available commercial information, neither disease opportunity for the public to submit scientific and commercial information, nor herbivory constitutes a threat to M. comments on a particular project and type conversion due to more frequent stoneana. propose other conservation measures fire does not pose a threat to Monardella that may directly benefit listed species; D. The Inadequacy of Existing however, it does not impose substantive stoneana or its associated plant Regulatory Mechanisms communities now or in the future. The environmental mitigation obligations on potential threat of frequent fire on At the time of listing, regulatory Federal agencies. Any such measures M. stoneana is further alleviated by mechanisms identified as providing are typically voluntary in nature and are management actions undertaken by CAL some level of protection for Monardella not required by the statute. Activities on FIRE. More intense fire, however, could linoides ssp. viminea included: (1) The non-Federal lands are also subject to pose a threat to individual clumps of Act, in cases where M. linoides ssp. NEPA if there is a Federal nexus. viminea co-occurred with a federally M. stoneana; these impacts are Clean Water Act (CWA) discussed below under Factor E. listed species; (2) CESA, as the species was listed as endangered in California Under section 404 of the CWA, the Summary of Factor A in 1979; (3) CEQA; (4) conservation U.S. Army Corps of Engineers (Corps) We evaluated several factors that have plans pursuant to California’s NCCP regulates the discharge of fill material the potential to destroy, modify, or Act; (5) land acquisition and into waters of the United States, which curtail habitat or range of Monardella management by Federal, State, or local include navigable and isolated waters, stoneana, including urban development, agencies, or by private groups and headwaters, and adjacent wetlands sand and gravel mining, altered organizations; (6) local laws and (33 U.S.C. 1344). In general, the term hydrology, and type conversion due to regulations; (7) CWA; and (8) ‘‘wetlands’’ refers to areas meeting the frequent fire. Based on our review of the enforcement of Mexican laws (63 FR Corps’ criteria of hydric soils, hydrology best available scientific and commercial 54938, October 13, 1998). The listing (either sufficient annual flooding or information, we conclude that rule provided an analysis of the water on the soil surface), and M. stoneana is not threatened by the potential level of protection provided by hydrophytic vegetation (plants present or threatened destruction, these regulatory mechanisms (63 FR specifically adapted to growing in modification, or curtailment of its 54938, October 13, 1998). With the wetlands). Monardella stoneana occurs habitat or range, either now or in the separation of M. viminea from M. exclusively in ephemeral streambeds, future. stoneana, we have re-evaluated current which episodically experience seasonal protective regulatory mechanisms for M. flows that typically create the B. Overutilization for Commercial, stoneana, as discussed below. However, conditions that meet the Corps’ criteria Recreational, Scientific, or Educational as with M. viminea, protections afforded for wetlands. Purposes to M. stoneana under the Act as part of Any human activity resulting in To our knowledge, no commercial use M. linoides ssp. viminea, the currently discharge of dredged or fill material into exists for Monardella stoneana. The listed entity, would continue to apply waters of the United States, including 1998 listing rule for M. linoides ssp. only if we determine to retain listed wetlands, requires a permit from the viminea suggested that professional and status for M. stoneana. Therefore, for Corps. These include individual permits private botanical collecting could purposes of our analysis, we do not that are issued following a review of an exacerbate the extirpation threat to the include the Act as an existing regulatory individual application and general subspecies due to botanists favoring rare mechanism that protects M. stoneana. permits that authorize a category or or declining species (63 FR 54938, We do note that M. stoneana would categories of activities in a specific October 13, 1998). However, we are not likely continue to receive protection geographical location or nationwide currently aware of any interest by indirectly through habitat conservation (33 CFR parts 320–330). As Monardella

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stoneana requires a natural hydrological restrictions on vehicle use, new regime undertaken by BLM under both regime to grow and persist, the developments, chainsaw use, mountain the current and the draft SCRMP is regulation of discharge could prevent bikes, leasing, and mining, in order to adequate to protect the species and its those flows from being interrupted or protect the natural habitats of the areas, habitat from the threat of type altered, thus providing a benefit to the maintain species diversity, and enhance conversion due to frequent fire (Factor species and its habitat. biological values. Lands acquired by A). BLM within the Otay Mountain Wilderness Act and Federal Land Policy Wilderness boundaries become part of State and Local Regulations and Management Act the designated wilderness area and are Native Plant Protection Act (NPPA) and Monardella stoneana is a BLM- managed in accordance with all California Endangered Species Act designated sensitive species (BLM 2010, provisions of the Wilderness Act and (CESA) pp. 29–30). BLM-designated sensitive regulations pertaining to the Wilderness species are those species that require Under provisions of NPPA (division Act (see 43 CFR 6301–6305). 2, chapter 10, section 1900 et seq. of the special management consideration to The memorandum of understanding CFG code) and CESA (Division 3, promote their conservation and reduce (MOU) between the Service, BLM, the chapter 1.5, section 2050 et seq. of the the likelihood and need for future County of San Diego, the City of San CFG code), the CDFG Commission listed listing under the Act. This status makes Diego, SANDAG, and CDFG was issued Monardella linoides ssp. viminea as conservation of M. stoneana a in 1994, in conjunction with the endangered in 1979. Currently, the State management priority in the Otay development of the County of San Diego Mountain Wilderness, where Subarea Plan under the MSCP for of California recognizes the State-listed approximately 34 percent of M. cooperation in habitat conservation entity as M. viminea. No such stoneana occurs. planning and management (BLM 1994, recognition is afforded M. stoneana The Federal Land Policy and pp. 1–8). The Otay Mountain under CESA. Although not listed under Management Act of 1976 (FLPMA) Wilderness falls entirely within the CESA, CDFG does recognize M. (43 U.S.C. 1701 et seq.) governs the boundary of this subarea plan. The stoneana as a rare and imperiled plant management of public lands under the MOU (BLM 1994, p. 3) details BLM’s (lists S1.2 and 1B.2). Researchers jurisdiction of BLM. The legislative commitment to manage lands to working on plants identified on these goals of FLPMA are to establish public ‘‘conform with’’ the County of San lists must apply to CDFG’s Rare Plant land policy; to establish guidelines for Diego Subarea Plan, which in turn Program to receive research permits to its [BLM’s] administration; and to requires protection of Monardella study or collect rare plants. provide for the management, protection, stoneana (see City and County of San California Environmental Quality Act development, and enhancement of Diego Subarea Plans under the Multiple (CEQA) public lands. While FLPMA generally Species Conservation Plan (MSCP) directs that public lands be managed on section below). Additionally, pursuant CEQA (Public Resources Code 21000– the basis of multiple use, the statute also to the MOU, private lands acquired by 21177) and the CEQA Guidelines directs that such lands be managed to BLM will be evaluated for inclusion (California Code of Regulations (CCR) ‘‘protect the quality of scientific, scenic, within the designated wilderness area, title 14, division 6, chapter 3, sections historical, ecological, environmental, air and if the lands do not meet wilderness 15000–15387) require State and local and atmospheric, water resource, and qualifications they will be included in agencies to identify the significant archeological values; [to] preserve and the MSCP conservation system (BLM environmental impacts of their actions protect certain public lands in their 1994, p. 3). Therefore, protections and avoid or mitigate those impacts, if natural condition; [and to] provide food provided by the County of San Diego feasible. CEQA applies to projects and habitat for fish and wildlife’’ Subarea Plan under the MSCP (see City proposed to be undertaken or requiring (43 U.S.C. 1701(a)(8)). Although BLM and County of San Diego Subarea Plans approval by State and local government has a multiple-use mandate under the under the Multiple Species agencies. The lead agency must FLPMA, which allows for grazing, Conservation Plan (MSCP) section complete the environmental review mining, and off-road vehicle use, BLM below) also apply to the Otay Mountain process required by CEQA, including also has the ability under the FLPMA to Wilderness. conducting an initial study to identify establish and implement special Protections for Monardella stoneana the environmental impacts of the project management areas such as Areas of are also included in BLM’s draft and determine whether the identified Critical Environmental Concern, SCRMP. Fire management activities impacts are significant. If significant wilderness areas, and research areas. occur on Otay Mountain as part of the impacts are determined, then an BLM’s South Coast Resource current (1994) SCRMP. At some point in environmental impact report must be Management Plan (SCRMP) covers the the future, on an as-needed basis, prepared to provide State and local San Diego County area. additional brush clearing and other agencies and the general public with The Otay Mountain Wilderness Act fuels modifications, including burning, detailed information on the potentially (1999) (Pub. L. 106–145) and BLM may occur. significant environmental effects management policies provide protection BLM is collaborating with the Service (California Environmental Resources for all Monardella stoneana occurrences to revise the SCRMP, which covers the Evaluation System 2010). ‘‘Thresholds within the Otay Mountain Wilderness. Otay Mountain Wilderness. The draft of Significance’’ are comprehensive The Otay Mountain Wilderness Act revised plan specifically includes a goal criteria used to define environmentally provides that the Otay Mountain of restoring fire frequency to 50 years significant impacts based on designated wilderness area (Otay through fire prevention or suppression quantitative and qualitative standards, Mountain Wilderness; 18,500 ac (7,486 and prescribed burns. Once an area has and include impacts to biological ha)) will be managed in accordance with not burned for 50 years, the plan allows resources such as candidate, sensitive, the provisions of the Wilderness Act of for annual prescribed burning of up to or special status species in local or 1964 (16 U.S.C. 1131 et seq.). The 500 ac (200 ha) in the Otay Mountain regional plans, policies, or regulations, Wilderness Act of 1964 strictly limits Wilderness (BLM 2009, pp. 4–171—4– or by CDFG or the Service; or any the use of wilderness areas, imposing 172). We believe the management riparian habitat or other sensitive

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natural community identified in local or conjunction with HCPs prepared intervals as a major goal. It also provides regional plans, policies, regulations, or pursuant to the Act. The City and for protection of native plant by CDFG or the Service (CEQA County of San Diego Subarea Plans community structure and biodiversity, Handbook, Appendix G, 2010). Defining under the MSCP are discussed below. including protection for M. stoneana these significance thresholds helps and the canyon where it is found (EO 1) City and County of San Diego Subarea ensure a ‘‘rational basis for significance (Tierra Data 2006, pp. 4–1—4–2). Plans Under the Multiple Species determinations’’ and provides support The County of San Diego Subarea Conservation Plan (MSCP) for the final determination and Plan under the San Diego MSCP covers appropriate revisions or mitigation As discussed under Factor D for 252,132 ac (102,035 ha) in the actions to a project in order to develop Monardella viminea, the MSCP is a southwestern portion of the County’s a mitigated negative declaration rather regional HCP and NCCP that has been unincorporated lands, and is than an environmental impact report in place for over 14 years. Habitat implemented in part by the Biological (Governor’s Office of Planning and conservation plans and multiple species Mitigation Ordinance (BMO). A total of Research 1994, p. 5). Under CEQA, conservation plans approved under 6 ac (2 ha) of privately owned land projects may move forward if there is a section 10 of the Act are intended to occupied by Monardella stoneana statement of overriding consideration. If protect covered species by avoidance, occurs within the County on lands significant effects are identified, the minimization, and mitigation of covered by the County’s MSCP subarea lead agency has the option of requiring impacts. Monardella linoides ssp. plan. As discussed in the Wilderness mitigation through changes in the viminea is a covered species under the Act and Federal Land Policy and project or deciding that overriding San Diego MSCP (City of San Diego Management Act section above, considerations make mitigation 1997, Table 3–5). The most recent protections provided by the County of infeasible (CEQA section 21002). revision of the rare plant monitoring San Diego Subarea Plan under the Protection of listed species through review lists M. stoneana as a recognized MSCP also apply to the Otay Mountain CEQA is, therefore, dependent upon the narrow endemic (McEachern et al. 2007, Wilderness. The County of San Diego discretion of the lead agency involved. p. 33). The changes mentioned in this Subarea Plan outlines the specific report have been adopted into the City criteria and requirements for projects Otay Mountain Ecological Reserve of San Diego’s monitoring plan. The within the MSCP Subarea Plan’s Fifty-five percent of Monardella City of San Diego Subarea Plan affords boundaries to alleviate threats from stoneana occurrences are found on the additional protections to narrow development and increased fire Otay Mountain Ecological Reserve, endemic species beyond those provided frequency (see MSCP, County of San which is owned by the State of for all covered species (City of San Diego Subarea Plan (1997) and County California and managed by CDFG. The Diego 1997, p. 100). Impacts to narrow of San Diego Biological Mitigation Reserve is managed in accordance with endemic species within the MHPA are Ordinance (Ord. Nos. 8845, 9246) 2007). California Administrative Code 14 CCR avoided, while outside the MHPA, The BMO requires that all impacts to S 630 (Nelson 2011, pers. comm.), impacts to narrow endemic species are narrow endemic plant species, which prohibits development and addressed through avoidance, including M. stoneana, be avoided to includes protection of resources, management, enhancement, or the maximum extent practicable including prohibitions against take of transplantation to areas identified for (County of San Diego 2010, p. 11). All plants, introduction of nonnative preservation (City of San Diego 1997, p. projects within the County’s MSCP species, and use of pesticides. Such 100). Currently, all M. stoneana subarea plan boundaries must comply management prevents M. stoneana from occurrences within the City of San with both the MSCP requirements and mortality due to increased density of Diego are within the boundaries of the the County’s policies under CEQA. nonnative species (see Factor E MHPA. Apart from the coverage provided by discussion below). Two known occurrences of the County of San Diego Subarea Plan, Monardella stoneana are located within the 6 ac (2 ha) of private land on Otay The Natural Community Conservation the City of San Diego Subarea Plan Mountain where Monardella stoneana is Planning (NCCP) Act under the MSCP. These include the known to occur is part of Otay Ranch, The NCCP program is a cooperative occurrence just east of Buschalaugh which is zoned as ‘‘Open Space’’ by the effort between the State of California Cove on the lower Otay Reservoir (EO County of San Diego and identified as and numerous private and public 5) and a portion of the occurrence in an part of the County preserve for the partners with the goal of protecting unnamed tributary of Cottonwood Creek MSCP. Additionally, this land is habitats and species. An NCCP east of Marron Valley (EO 6). These two covered by the Otay Ranch Phase 2 document identifies and provides for occurrences make up a total of 7 percent Resource Management Plan (Otay Ranch the regional or areawide protection of of the habitat for M. stoneana, and the 2002), which was approved by the plants, animals, and their habitats, City of San Diego Subarea Plan requires County in 2002, and provides for the while allowing compatible and preservation of 100 percent of this phased conservation and development appropriate economic activity. The habitat. As discussed above, additional of lands in southern San Diego County. program began in 1991 under the State’s impact avoidance and other measures A large portion of land is identified for NCCP Act (CFG Code 2800–2835). The under the City’s Subarea Plan will conservation and will be dedicated as primary objective of the NCCP program protect narrow endemic species such as associated development occurs. The is to conserve natural communities at M. stoneana. The subarea plan also Otay Ranch Phase 2 Management Plan the ecosystem scale while includes area-specific management provides protection for 100 percent of accommodating compatible land uses directives designed to maintain long- M. stoneana occurring on the preserve, (http://www.dfg.ca.gov/habcon/nccp/). term survival of narrow endemics providing additional protection beyond Regional NCCPs provide protection to (Service 1997, pp. 104–105). that already provided by the County of federally listed species, and often Additionally, the City has completed a San Diego Subarea Plan (Otay Ranch unlisted species, by conserving native fire management plan for the Marron 2002, p. 144). The plan includes habitats upon which the species Valley area. This plan includes provisions to manage M. stoneana depend. Many NCCPs are developed in addressing unnaturally short fire return habitat in a way that will benefit this

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species (Otay Ranch 2002, pp. 18–19, approximately 89 percent of all ssp. viminea (63 FR 54938, October 13, 52–53). occurrences of Monardella stoneana, 1998). San Diego County habitats have The County of San Diego Resource fire management is provided by CAL been altered by invasion of nonnative Protection Ordinance (RPO) (County of FIRE. Further protection of natural species (Soule et al. 1992, p. 43). San Diego 2007) applies to resources on State lands is provided by Nonnative grasses, which frequently unincorporated lands in the County, management consistent with the grow more quickly than native species, both within and outside of the MSCP Wilderness Act. can smother seedling and mature M. subarea plan boundaries. The RPO Based on our review of the best viminea and prevent natural growth identifies restrictions on development to available scientific and commercial (Rebman and Dossey 2006, p. 12). The reduce or eliminate impacts to natural information, we conclude that same effect is likely for M. stoneana. resources, including wetlands, wetland Monardella stoneana is not threatened Monitors for the City of San Diego buffers, floodplains, steep slope lands, by inadequate existing regulatory MSCP recorded invasive plants at the and sensitive habitat lands. Sensitive mechanisms. Federal, State, and local Marron Valley location in the 2008 and habitat lands are those that support regulatory mechanisms help reduce 2009 survey reports (City of San Diego unique vegetation communities or are wildfire impacts, primarily to property 2008, p. 2; City of San Diego 2009, p. 1). necessary to support a viable population and human safety, but they do not At the Otay Lakes location, the invasive of sensitive species (such as Monardella adequately protect M. stoneana from plant tamarisk was documented in 2006 stoneana), are critical to the proper direct mortality caused by megafire, as (City of San Diego 2006, p. 8), and functioning of a balanced natural discussed below under Factor E. nonnative grasses were documented in ecosystem, or serve as a functioning However, the impact of megafire on 2008 and 2009 (City of San Diego 2008, wildlife corridor (County of San Diego, wildlands is not a threat that can be p. 2; City of San Diego 2009, p. 2). 2007, p. 3). These can include areas that eliminated by regulatory mechanisms. However, despite the presence of contain maritime succulent scrub, Therefore, we do not find existing nonnative plants in the range of southern coastal bluff scrub, coastal and regulations inadequate to protect M. Monardella stoneana, monitoring desert dunes, calcicolous scrub, and stoneana, now or in the future. reports have not recorded the same level maritime chaparral, among others. of invasion by nonnative grasses as has Impacts to RPO sensitive habitat lands E. Other Natural or Manmade Factors occurred in the vicinity of M. viminea. are only allowed when all feasible Affecting Its Continued Existence As discussed under Factor A, the measures have been applied to reduce Trampling ground cover of both nonnative and impacts and when mitigation provides native plant species has increased an equal or greater benefit to the Trampling was identified as a threat between 2008 and 2010 at both Otay affected species (County of San Diego to Monardella linoides ssp. viminea in Lakes and Marron Valley. Additionally, 2007, p. 13). the original listing rule (63 FR 54938, the number of individual plants of M. October 13, 1998). Trampling by stoneana at Marron Valley has not Summary of Factor D pedestrians may result in damage or changed since 2006 (City of San Diego On City and County lands occupied death to M. stoneana plants. The City of 2006, p. 1; City of San Diego 2008, p. 1; by Monardella stoneana or containing San Diego MSCP previously identified City of San Diego 2009, p. 1; City of San its habitat, we believe the County of San off-highway vehicle (OHV) activity and Diego 2010a, p. 11). These observations Diego RPO, the BMO, and the Subarea disturbance due to illegal immigrant are consistent with those of Minnich Plans for the City and County of San activity as major management issues and Bahre (1995, p. 17), who found that Diego provide adequate mechanisms to (City of San Diego 1997, p. 52). All M. ground cover of all herbaceous plants, conserve M. stoneana in association stoneana clusters occur in close including nonnative grasses, was with new development or other proximity to the Mexico border, where generally absent or consisted of thinly proposed projects, and for the creation historically many illegal immigrants scattered plants within the chaparral of biological reserves. The County of crossed on foot. Monitoring reports along the California-Baja California San Diego Subarea Plan provides previously noted immigrant trails boundary. Therefore, based on the best protection from new development or through M. stoneana habitat at the Otay available scientific information, we find other proposed projects for the small Lakes location (City of San Diego 2006, that nonnative species do not constitute percentage of M. stoneana on private p. 8). However, the recent border fence a threat to the continued existence of M. land, and includes provisions for construction and other enforcement stoneana. monitoring and management through activities in the Otay Mountain development of location-specific Wilderness area have reduced illegal Small Population Size management plans. The City of San immigrant traffic (Ford 2011, pers. The original listing rule identified the Diego has developed final monitoring comm.) and thus potential impacts of restricted range and small population and management plans for M. stoneana. trampling at the Otay Lakes, Marron size of Monardella linoides ssp. viminea Conservation measures addressing Valley, and Otay Mountain locations. as a threat because it increases the stressors from type conversion due to While there may be some impacts from possibility of extinction due to chance frequent fire are thus identified and are trampling to individual plants, it is events, such as floods, fires, or drought, being carried out at the Marron Valley unlikely to occur at levels that would outside the natural variability of the occurrence, the only city-owned land affect the status of the species as a ecosystem (Lande 1993, p. 912; 63 FR where M. stoneana is extant. However, whole. Based on the best scientific 54938, October 13, 1998). With the split as only a small percentage of M. information, we believe that trampling of M. linoides ssp. viminea into two stoneana occurs on city-owned lands, (human disturbance activities) does not entities, the magnitude of this threat these actions, although providing a pose a significant risk to the persistence would likely increase. However, we benefit to the one occurrence on city- of M. stoneana now or in the future. note that several additional M. stoneana owned land, are not enough to protect occurrences have been discovered. Nonnative Plant Species the species as a whole. Additionally, Prince (2009, p. 2) On land owned and managed by The listing rule identified nonnative suggests that multiple undiscovered CDFG and BLM, which includes plants as a threat to Monardella linoides occurrences of M. stoneana may exist in

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the vicinity of Tecate Peak. This area discovered in 2003 or later, so long-term recovering from 98 percent of the has not been extensively surveyed data are not available for this species. occurrences on MCAS Miramar being because it is difficult to access. One of those seven occurrences (EO 5) burned in the 2003 Cedar Fire. Additional habitat may exist in Mexico; was considered extirpated after the 2007 Given the increased frequency of however, we are unaware of any surveys Harris Fire, but has since resprouted megafire within southern California confirming the presence or absence of (City of San Diego 2011a, p. 229). ecosystems and the inability of M. stoneana there, apart from plants Monardella stoneana has not regulatory mechanisms to prevent or seen directly across the border. Based experienced a significant population control megafire, we find that megafire on information in our files, these are the decline since listing, nor have multiple does have the potential to impact only occurrences in Mexico of which we occurrences been extirpated. One of two occurrences of Monardella stoneana. are aware. However, suitable habitat and occurrences monitored by the City of However, given the species persistence landscape conditions exist in Mexico, San Diego (EO 1) has remained stable through past fires, and the ability of a close to the current range of the species throughout the past decade, although closely related species to recover from in the United States. the other occurrence (EO 5) containing direct impact by fire, we do not expect Of the 20 known occurrences of one clump was extirpated (the EO 5 that megafire is a significant threat to Monardella linoides ssp. viminea at the occurrence contained a maximum of individual M. stoneana plants now, nor time of listing, only 2 were later only two clumps since monitoring is it likely to become a threat in the considered to be M. stoneana. began in 2000). This is in contrast to M. future. Subsequent surveys have identified viminea, which has experienced a loss Climate Change additional occurrences, and, currently, of several populations since listing. approximately eight occurrences of M. Consequently, the fact that M. stoneana Please see discussion above in Factor stoneana are known in the Otay is rare and has small populations does E for Monardella viminea regarding Mountain area (CNDDB 2011b). The not indicate that it is in danger of background on how the Service number of plants in Mexico is unknown extinction now or in the future. evaluates the possible threat of climate and has been minimally investigated. Therefore, although small population change. With regard to the area of Plants across the border in Mexico are size may have the potential to pose a analysis for Monardella stoneana, visible from at least two occurrences threat to M. stoneana, we do not find it downscaled projections are not south of Otay Mountain, but these have to be a threat now or in the future. available, but many scientists believe not been formally surveyed (EOs 7 and warmer, wetter winters and warmer, 8). Additionally, the most recent survey Fire drier summers will occur within the for this area was in 2005 (CNDDB As discussed under Factor E for next century (Field et al. 1999, pp. 2– 2011b), so the continued existence of Monardella viminea, fire can impact 3, 20). The impacts on species like M. the Mexico occurrences and number of individual plants. This is especially true stoneana, which depend on specific clumps present cannot be confirmed. of megafire events that cannot be hydrological regimes, may be more Any decrease in occurrences may controlled or ameliorated through severe (Graham 1997, p. 2). result in decreased reproductive management efforts. A narrow endemic, Since approximately the time of opportunities due to decreased such as M. stoneana, could be especially listing in 1998, an extended drought in pollination events, and thus decreased sensitive to megafire events. One large the region (SDCWA 2011, p. 2) created genetic exchange between canyons. fire could impact all or a large unusually dry habitat conditions. From However, we do not consider small proportion of the entire area where the 2001 to 2010, at one of the precipitation population size alone sufficient to meet species is found, as occurred for M. gauges close to the Monardella stoneana the information threshold indicating viminea in the 2003 Cedar Fire. occurrences (Lindberg Field, San Diego that the species warrants listing. In the However, as discussed in Factor E for M. County, California), precipitation absence of information identifying viminea, the decline of the burned measured significantly below normal in threats to the species and linking those occurrences was not as severe as 7 out of 10 years (SDCWA 2011, p. 2). threats to the rarity of the species, the initially thought. We expect that M. This extended drought has cumulatively Service does not consider rarity or small stoneana would experience the same affected moisture regimes, riparian population size alone to be a threat. For ability to sprout from the roots, as it is habitat, and vegetative conditions in example, the habitat supporting closely related to M. viminea. and around suitable habitat for M. Monardella viminea faces significant Furthermore, despite the increased stoneana, increasing the stress on threats from the impacts of fire, altered frequency of fire, Monardella stoneana individual plants. As stated above, hydrological regimes, and competition has persisted through all large fires in future climate changes may lead to with nonnative plants. As discussed the region. The GIS fire boundaries similar, if not more severe, conditions. above, M. stoneana does not face such show that each occurrence of M. The predicted drought could impact threats. Many naturally rare species stoneana has been burned at least once the dynamics of the streambeds where have persisted for long periods within in the past decade. In the past two Monardella stoneana grows. Soil small geographic areas, and many decades, eight of nine EOs burned two moisture and transportation of naturally rare species exhibit traits that or more times, and four occurrences sediments by downstream flow have allow them to persist despite their small burned three or more times. The only been identified as key habitat features population sizes. Monardella stoneana reports of damage are from EO 5, which required by M. stoneana. The species is appears to have persisted for over 2 lost its one remaining plant, and EO 4, characterized as being associated with decades in the two occurrences known which was ‘‘damaged’’ in a recent areas of standing water after rainfall since the 1970s and 1980s, respectively (unspecified) fire, but not extirpated (Elvin and Sanders 2003, p. 426). (CNDDB 2011b; EOs 1 and 4). This is in (CNDDB 2011b). In the event of a fire Monitors for the City of San Diego have contrast to M. viminea occurrences, that impacts all of the occurrences, we observed decreased plant health and many of which have undergone anticipate that the effects to M. stoneana increased dormancy of Monardella population declines during the same individuals would be comparable to M. species in years with low rainfall (City time period. The other seven viminea, where the best available of San Diego 2003, p. 3; City of San occurrences of M. stoneana were information shows that individuals are Diego 2004, p. 3). However, specific

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analyses of population trends as available scientific information, that M. under the Act is not warranted. We find correlated to rainfall are difficult due to stoneana could be affected temporarily that the best available information inconsistent plant count methods (City by fire impacts associated with the concerning Factor E (Other Natural or of San Diego 2004, p. 67). death of individual plants; however, we Manmade Factors Affecting Its While drier conditions associated do not consider this a threat to the Continued Existence) indicates that with climate change may result in continued existence of the species. trampling and nonnative plants are not increased fire frequency within some Small population size could exacerbate currently threats to the continued plant communities, as discussed under other threats, but as there are none, this existence of M. stoneana, nor are they Factor A, the effect of more arid is not a factor; small population size in expected to be in the future. conditions on chaparral, the plant itself does not cause M. stoneana to be Additionally, we have no information to community associated with Monardella warranted for listing. In addition, BLM demonstrate that predicted climate stoneana, is not known. According to conducts ongoing management that change or megafire will result in a Minnich and Bahre (1997, p. 20), fires provides a benefit to M. stoneana. significant threat to the species now or in the chaparral of northern Baja Finally, with regard to the direct and in the future. California, Mexico, are smaller and indirect effects of climate change on Although Monardella stoneana has a more frequent than those observed individual M. stoneana plants, we have similar life history to M. viminea, based across the border in southern California. no information at this point to on differences in location, land Despite these differences in the present demonstrate that predicted climate ownership and use, and habitat type, we fire regimes between chaparral in change poses a significant threat to the find that potential threats impact the California and Mexico, Minnich and species now or in the future. species differently. Monardella Bahre (1997, p. 20) found that ‘‘repeat stoneana does face some stressors; photographs of the monument markers, Cumulative Impacts however, the species is found primarily field samples, repeat aerial As discussed in the Cumulative on protected (i.e., Federal and State) photography, and fire history maps Impacts analysis for Monardella lands. To the extent that the species show that chaparral succession is viminea, type conversion due to may be experiencing localized impacts, similar across the international frequent fire, nonnative grasses, and analysis of recent and current surveys of boundary between Jacumba [in altered hydrological regimes can work M. stoneana habitat in the Otay California] and Tecate [in Mexico] and in concert to result in the decline of the Mountain locations indicates that its that chaparral succession along the species. However, based on the best habitat is under protective status and border is similar to that found elsewhere available scientific information, we did remains in relatively good condition. in California.’’ Except for a statistically not find that invasion by nonnative Furthermore, unlike M. viminea, M. significant correlation that early autumn grasses or type conversion due to stoneana has not undergone a rains cut short the fire season at its frequent fire are occurring in habitats documented decline in population size. peak, Keeley and Fotheringham (2003, that support M. stoneana, nor did we While megafire and small population p. 235) did not find patterns between find that hydrology was altered from its size may impact M. stoneana, these rainfall and burning for chaparral and natural regime to the point where it factors do not pose a threat to the coastal sage shrublands. Therefore, threatens the continued survival of the continued existence of the species. increased aridity may have little effect species. Therefore, we do not find Finally, we do not consider M. on chaparral. evidence that any of the potential stoneana’s small population size in and Preliminary information for threats discussed in this finding pose of itself a threat such that the species Monardella stoneana does show that the additional stress to M. stoneana by warrants listing, now or in the future. effects of climate change on chaparral acting in concert with one another. In conclusion, we have carefully may be less than the effects on coastal assessed the best scientific and Determination sage scrub (see Climate Change section commercial information available for M. viminea above). While we We have carefully assessed the best regarding the past, present, and future recognize that climate change and scientific and commercial information threats faced by Monardella stoneana. increased drought associated with available regarding the past, present, Our review of the information climate change are important issues and future threats to Monardella pertaining to the five threat factors does with potential impacts to listed species stoneana. We found no significant not support a conclusion that threats of and their habitats, the best available threats to M. stoneana related to Factors sufficient imminence, intensity, or scientific data do not give specific A, B, C, D, or E, as described above. magnitude exist—either singly or in evidence for us to formulate accurate After an assessment of potential threats combination—to the extent that the predictions regarding the effects of including urban development, altered species is in danger of extinction climate change on particular species, hydrology, and type conversion due to (endangered), or likely to become including M. stoneana, at this time. frequent fire as attributable to Factor A endangered (threatened) throughout its Therefore, at this time we do not (The Present or Threatened Destruction, range now or within the foreseeable consider climate change a current threat Modification, or Curtailment of Its future. Therefore, based on the best to M. stoneana, either now or in the Habitat or Range), we find that none available scientific information, we find future. poses a significant threat to the species. M. stoneana does not warrant listing at We found no available information this time. However, if we receive new Summary of Factor E concerning Factors B (Overutilization) information that alters our analysis, we We found no evidence that other and C (Disease or Predation) to indicate will revisit and re-evaluate the status of natural or manmade factors pose a that listing M. stoneana as endangered M. stoneana. significant threat to Monardella or threatened under the Act is stoneana. Based on a review of the best warranted. We find that the best Significant Portion of Range available scientific and commercial available information concerning Factor The Act defines ‘‘endangered species’’ data, trampling and nonnative invasive D (Inadequacy of Existing Regulatory as any species which is ‘‘in danger of plant species are not significant threats. Mechanisms) indicates that listing M. extinction throughout all or a significant We conclude, based on the best stoneana as endangered or threatened portion of its range,’’ and ‘‘threatened

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species’’ as any species which is ‘‘likely situations (or factual bases) under which distributed across the landscape) may be to become an endangered species within a species would qualify for listing: (1) A needed to provide a margin of safety for the foreseeable future throughout all or species may be endangered or the species to withstand catastrophic a significant portion of its range.’’ The threatened throughout all of its range; or events. Representation (the range of definition of ‘‘species’’ is also relevant (2) a species may be endangered or variation found in a species) ensures to this discussion. The Act defines the threatened in only a significant portion that the species’ adaptive capabilities term ‘‘species’’ as follows: ‘‘The term of its range. If a species is in danger of are conserved. Redundancy, resiliency, ‘species’ includes any subspecies of fish extinction throughout an SPR, it, the and representation are not independent or wildlife or plants, and any distinct species, is an ‘‘endangered species.’’ of each other, and some characteristic of population segment [DPS] of any The same analysis applies to a species or area may contribute to all species of vertebrate fish or wildlife ‘‘threatened species.’’ Therefore, the three. For example, distribution across a which interbreeds when mature.’’ The consequence of finding that a species is wide variety of habitats is an indicator phrase ‘‘significant portion of its range’’ endangered or threatened in only a of representation, but it may also (SPR) is not defined by the statute, and significant portion of its range is that the indicate a broad geographic distribution we have never addressed in our entire species will be listed as contributing to redundancy (decreasing regulations: (1) The consequences of a endangered or threatened, respectively, the chance that any one event affects the determination that a species is either and the Act’s protections will be entire species), and the likelihood that endangered or likely to become so applied across the species’ entire range. some habitat types are less susceptible throughout a significant portion of its We conclude, for the purposes of this to certain threats, contributing to range, but not throughout all of its rule, that interpreting the SPR phrase as resiliency (the ability of the species to range; or (2) what qualifies a portion of providing an independent basis for recover from disturbance). None of these a range as ‘‘significant.’’ listing is the best interpretation of the concepts is intended to be mutually Two recent district court decisions Act because it is consistent with the exclusive, and a portion of a species’ have addressed whether the SPR purposes and the plain meaning of the range may be determined to be language allows the Service to list or key definitions of the Act; it does not ‘‘significant’’ due to its contributions protect less than all members of a conflict with established past agency under any one of these concepts. defined ‘‘species’’: Defenders of Wildlife practice (i.e., prior to the 2007 For the purposes of this rule, we v. Salazar, 729 F. Supp. 2d 1207 Solicitor’s Opinion), as no consistent, determine if a portion’s biological (D. Mont. 2010), concerning the long-term agency practice has been contribution is so important that the Service’s delisting of the Northern established, and it is consistent with the portion qualifies as ‘‘significant’’ by Rocky Mountain gray wolf (74 FR judicial opinions that have most closely asking whether, without that portion, 15123, April 2, 2009); and WildEarth examined this issue. Having concluded the representation, redundancy, or Guardians v. Salazar, 2010 U.S. Dist. that the phrase ‘‘significant portion of resiliency of the species would be so LEXIS 105253 (D. Ariz. Sept. 30, 2010), its range’’ provides an independent impaired that the species would have an concerning the Service’s 2008 finding basis for listing and protecting the entire increased vulnerability to threats to the on a petition to list the Gunnison’s species, we next turn to the meaning of point that the overall species would be prairie dog (73 FR 6660, February 5, ‘‘significant’’ to determine the threshold in danger of extinction (i.e., would be 2008). The Service had asserted in both for when such an independent basis for ‘‘endangered’’). Conversely, we would of these determinations that it had listing exists. not consider the portion of the range at authority, in effect, to protect only some Although there are potentially many issue to be ‘‘significant’’ if there is members of a ‘‘species,’’ as defined by ways to determine whether a portion of sufficient resiliency, redundancy, and the Act (i.e., species, subspecies, or a species’ range is ‘‘significant,’’ we representation elsewhere in the species’ DPS), under the Act. Both courts ruled conclude, for the purposes of this rule, range that the species would not be in that the determinations were arbitrary that the significance of the portion of danger of extinction throughout its and capricious on the grounds that this the range should be determined based range if the population in that portion approach violated the plain and on its biological contribution to the of the range in question became unambiguous language of the Act. The conservation of the species. For this extirpated (extinct locally). courts concluded that reading the SPR reason, we describe the threshold for We recognize that this definition of language to allow protecting only a ‘‘significant’’ in terms of an increase in ‘‘significant’’ establishes a threshold portion of a species’ range is the risk of extinction for the species. We that is relatively high. On the one hand, inconsistent with the Act’s definition of conclude that a biologically based given that the consequences of finding ‘‘species.’’ The courts concluded that definition of ‘‘significant’’ best conforms a species to be endangered or threatened once a determination is made that a to the purposes of the Act, is consistent in an SPR would be listing the species species (i.e., species, subspecies, or with judicial interpretations, and best throughout its entire range, it is DPS) meets the definition of ensures species’ conservation. Thus, for important to use a threshold for ‘‘endangered species’’ or ‘‘threatened the purposes of this rule, a portion of ‘‘significant’’ that is robust. It would not species,’’ it must be placed on the list the range of a species is ‘‘significant’’ if be meaningful or appropriate to in its entirety and the Act’s protections its contribution to the viability of the establish a very low threshold whereby applied consistently to all members of species is so important that, without a portion of the range can be considered that species (subject to modification of that portion, the species would be in ‘‘significant’’ even if only a negligible protections through special rules under danger of extinction. increase in extinction risk would result sections 4(d) and 10(j) of the Act). We evaluate biological significance from its loss. Because nearly any portion Consistent with that interpretation, based on the principles of conservation of a species’ range can be said to and for the purposes of this rule, we biology using the concepts of resiliency, contribute some increment to a species’ interpret the phrase ‘‘significant portion redundancy, and representation. viability, use of such a low threshold of its range’’ in the Act’s definitions of Resiliency describes the characteristics would require us to impose restrictions ‘‘endangered species’’ and ‘‘threatened of a species that allow it to recover from and expend conservation resources species’’ to provide an independent periodic disturbance. Redundancy disproportionately to conservation basis for listing; thus there are two (having multiple populations benefit: listing would be rangewide,

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even if only a portion of the range of and threatened or endangered. To historical range might qualify as an SPR minor conservation importance to the identify only those portions that warrant for Monardella stoneana. species is imperiled. On the other hand, further consideration, we determine We evaluated whether the best it would be inappropriate to establish a whether there is substantial information available information indicates that the threshold for ‘‘significant’’ that is too indicating that: (1) The portions may be range of Monardella stoneana has high. This would be the case if the ‘‘significant,’’ and (2) the species may be contracted over time. We have little standard were, for example, that a in danger of extinction there or likely to information on the historical range of M. portion of the range can be considered become so within the foreseeable future. stoneana. However, unlike M. viminea, ‘‘significant’’ only if threats in that Depending on the biology of the species, M. stoneana has not undergone a portion result in the entire species’ its range, and the threats it faces, it dramatic decline in population size. being currently endangered or might be more efficient for us to address Monardella stoneana appears to have threatened. Such a high bar would not the significance question first or the persisted for over 2 decades in the two give the SPR phrase independent status question first. Thus, if we occurrences known in the United States meaning, as the Ninth Circuit held in determine that a portion of the range is since the 1970s and 1980s, respectively Defenders of Wildlife v. Norton, 258 not ‘‘significant,’’ we do not need to (see proposed rule at 76 FR 33880, June F.3d 1136 (9th Cir. 2001). determine whether the species is 9, 2011). The other seven occurrences of The definition of ‘‘significant’’ used in endangered or threatened there; if we M. stoneana in the United States were this rule carefully balances these determine that the species is not discovered in 2003 or later, so long-term concerns. By setting a relatively high endangered or threatened in a portion of data on M. stoneana are not available; threshold, we minimize the degree to its range, we do not need to determine only one of those seven occurrences has which restrictions will be imposed or if that portion is ‘‘significant.’’ In since been extirpated. We have almost resources expended that do not practice, a key part of the portion status no information about the range of M. contribute substantially to species analysis is whether the threats are stoneana in Mexico other than conservation. But we have not set the geographically concentrated in some observations of plants directly across threshold so high that the phrase ‘‘in a way. If the threats to the species are the Mexican border from occurrences in significant portion of its range’’ loses essentially uniform throughout its the United States. Because the best independent meaning. Specifically, we range, no portion is likely to warrant available information indicates that M. have not set the threshold as high as it further consideration. Moreover, if any stoneana has not experienced a was under the interpretation presented concentration of threats applies only to significant population decline, nor have by the Service in the Defenders portions of the species’ range that multiple occurrences been extirpated litigation. Under that interpretation, the clearly would not meet the biologically within its known range, we are unable portion of the range would have to be based definition of ‘‘significant’’, such to find that a significant amount of so important that current imperilment portions will not warrant further historical range has been lost. Therefore, there would mean that the species consideration. we conclude that there has not been a would be currently imperiled As described in the Determination loss of historical habitat that represents everywhere. Under the definition of section above, we find that the stressors a significant portion of the range of M. ‘‘significant’’ used in this final rule, the affecting Monardella stoneana are not of stoneana. portion of the range need not rise to sufficient imminence, intensity, such an exceptionally high level of Critical Habitat biological significance. (We recognize magnitude, or geographic concentration Due to the taxonomic split of that if the species is imperiled in a such that M. stoneana warrants listing Monardella linoides ssp. viminea into portion that rises to that level of under the Act. The stressors affecting M. two distinct taxa, Monardella viminea biological significance, then we should stoneana, including megafire, occur (willowy monardella) and Monardella conclude that the species is in fact across the species’ entire range. stoneana (Jennifer’s monardella) (see imperiled throughout all of its range, Additionally, factors that might be Procedural Aspects of this Rule section and that we would not need to rely on limited to individual drainages, such as the SPR language for such a listing.) altered hydrology or urban above), and due to our conclusion that Rather, under this interpretation we ask development, do not threaten M. M. viminea is endangered, we are whether the species would be stoneana. Therefore, because M. designating critical habitat for M. endangered everywhere without that stoneana has no geographical viminea. Because we have determined portion, i.e., if that portion were concentration of threats, it does not that M. stoneana does not meet the completely extirpated. In other words, qualify for listing based on threats to the definition of endangered or threatened the portion of the range need not be so species in a significant portion of its under the Act, we are not designating important that even being in danger of range. critical habitat for this species. extinction in that portion would be Decisions by the Ninth Circuit Court Background sufficient to cause the species in the of Appeals in Defenders of Wildlife v. remainder of the range to be Norton, 258 F.3d 1136 (2001) and Critical habitat is defined in section 3 endangered; rather, the complete Tucson Herpetological Society v. of the Act as: extirpation (in a hypothetical future) of Salazar, 566 F.3d 870 (2009) found that (1) The specific areas within the the species in that portion would be the Act requires the Service, in geographical area occupied by the required to cause the species in the determining whether a species is species, at the time it is listed in remainder of the range to be endangered or threatened throughout a accordance with the Act, on which are endangered. significant portion of its range, to found those physical or biological The range of a species can consider whether lost historical range of features theoretically be divided into portions in a species (as opposed to its current (a) Essential to the conservation of the an infinite number of ways. However, range) constitutes a significant portion species and there is no purpose to analyzing of the range of that species. While this (b) Which may require special portions of the range that have no is not our interpretation of the statute, management considerations or reasonable potential to be significant we will consider whether the lost protection; and

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(2) Specific areas outside the and commercial data available, those by States and counties, scientific status geographical area occupied by the physical or biological features that are surveys and studies, biological species at the time it is listed, upon a essential to the conservation of the assessments, other unpublished determination that such areas are species (such as space, food, cover, and materials, or experts’ opinions or essential for the conservation of the protected habitat). In identifying those personal knowledge. species. physical or biological features within an Habitat is dynamic, and species may Conservation, as defined under area, we focus on the principal move from one area to another over section 3 of the Act, means to use and biological or physical constituent time. We recognize that critical habitat the use of all methods and procedures elements (primary constituent elements designated at a particular point in time that are necessary to bring an such as roost sites, nesting grounds, may not include all of the habitat areas endangered or threatened species to the seasonal wetlands, water quality, tide, that we may later determine are point at which the measures provided soil type) that are essential to the necessary for the recovery of the pursuant to the Act are no longer conservation of the species. Primary species. For these reasons, a critical necessary. Such methods and constituent elements are the elements of habitat designation does not signal that procedures include, but are not limited physical or biological features that are habitat outside the designated area is to, all activities associated with essential to the conservation of the unimportant or may not be needed for scientific resources management such as species. recovery of the species. Areas that are research, census, law enforcement, Under the second prong of the Act’s important to the conservation of the habitat acquisition and maintenance, definition of critical habitat, we can species, both inside and outside the propagation, live trapping, and designate critical habitat in areas critical habitat designation, will transplantation, and, in the outside the geographical area occupied continue to be subject to: (1) extraordinary case where population by the species at the time it is listed, Conservation actions implemented pressures within a given ecosystem upon a determination that such areas under section 7(a)(1) of the Act, (2) cannot be otherwise relieved, may are essential for the conservation of the regulatory protections afforded by the include regulated taking. species. For example, an area currently requirement in section 7(a)(2) of the Act Critical habitat receives protection occupied by the species but that was not for Federal agencies to insure their under section 7 of the Act through the occupied at the time of listing may be actions are not likely to jeopardize the requirement that Federal agencies essential to the conservation of the continued existence of any endangered ensure, in consultation with the Service, species and may be included in the or threatened species, and (3) the that any action they authorize, fund, or critical habitat designation. We prohibitions of section 9 of the Act if carry out is not likely to result in the designate critical habitat in areas actions occurring in these areas may destruction or adverse modification of outside the geographical area occupied affect the species. Federally funded or critical habitat. The designation of by a species at the time of listing when permitted projects affecting listed critical habitat does not affect land a designation limited to the species outside their designated critical ownership or establish a refuge, geographical area occupied at the time habitat areas may still result in jeopardy wilderness, reserve, preserve, or other of listing would be inadequate to ensure findings in some cases. These conservation area. Such designation the conservation of the species. protections and conservation tools will does not allow the government or public Section 4 of the Act requires that we continue to contribute to recovery of to access private lands. Such designate critical habitat on the basis of this species. Similarly, critical habitat designation does not require the best scientific and commercial data designations made on the basis of the implementation of restoration, recovery, available. Further, our Policy on best available information at the time of or enhancement measures by non- Information Standards Under the designation will not control the Federal landowners. Where a landowner Endangered Species Act (published in direction and substance of future requests Federal agency funding or the Federal Register on July 1, 1994 (59 recovery plans, habitat conservation authorization for an action that may FR 34271)), the Information Quality Act plans (HCPs), or other species affect a listed species or critical habitat, (section 515 of the Treasury and General conservation planning efforts if new the consultation requirements of section Government Appropriations Act for information available at the time of 7(a)(2) of the Act would apply, but even Fiscal Year 2001 (Pub. L. 106–554; H.R. these planning efforts calls for a in the event of a destruction or adverse 5658)), and our associated Information different outcome. modification finding, the obligation of Quality Guidelines, provide criteria, the Federal action agency and the establish procedures, and provide Physical or Biological Features landowner is not to restore or recover guidance to ensure that our decisions In accordance with section 3(5)(A)(i) the species, but to implement are based on the best scientific data and 4(b)(1)(A) of the Act and regulations reasonable and prudent alternatives to available. They require our biologists, to at 50 CFR 424.12, in determining which avoid destruction or adverse the extent consistent with the Act and areas within the geographical area modification of critical habitat. with the use of the best scientific data occupied by the species at the time of Under the first prong of the Act’s available, to use primary and original listing to designate as critical habitat, definition of critical habitat, areas sources of information as the basis for we consider the physical or biological within the geographical area occupied recommendations to designate critical features essential to the conservation of by the species at the time it was listed habitat. the species and which may require are included in a critical habitat When we are determining which areas special management considerations or designation if they contain physical or should be designated as critical habitat, protection. These include, but are not biological features (1) which are our primary source of information is limited to: essential to the conservation of the generally the information developed (1) Space for individual and species and (2) which may require during the listing process for the population growth and for normal special management considerations or species. Additional information sources behavior; protection. For these areas, critical may include the recovery plan for the (2) Food, water, air, light, minerals, or habitat designations identify, to the species, articles in peer-reviewed other nutritional or physiological extent known using the best scientific journals, conservation plans developed requirements;

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(3) Cover or shelter; canyons (Kassebaum 2010, pers. Pollinators facilitate mixing of genes (4) Sites for breeding, reproduction, or comm.). within and among plant populations, rearing (or development) of offspring; Monardella viminea plants are found without which inbreeding and reduced and on soil where subsurface layers stay fitness may occur (Widen and Widen (5) Habitats that are protected from relatively moist throughout the year and 1990, p. 191). Native sand wasps within disturbance or are representative of the water accumulates after rainstorms, the range of M. viminea (such as those historical, geographical, and ecological such as north-facing slopes or canyon from the Bembicine family) require distributions of a species. bottoms (Elvin and Sanders 2003, pp. sandy areas (such as dunes or sandy We derive the specific physical or 426, 430). Plants with inadequate soil washes) to nest, while solitary bees biological features essential for moisture dry out during the summer (Andrenidae family) nest in upland Monardella viminea from studies of this months and do not survive (Kelly and areas (Kelly and Burrascano 2001, p. 8). species’ habitat, ecology, and life history Burrascano 2006, p. 5). The species does Native bees typically are more efficient as described in the Critical Habitat not occur on soils that are permanently pollinators than introduced European section of the proposed rule to designate wet (Elvin and Sanders 2003, p. 425). honeybees (Apis mellifera) (Javorek et Monardella viminea occurrences have critical habitat published in the Federal al. 2002, p. 345). Therefore, populations been lost from areas where wetter soils Register on June 9, 2011 (76 FR 33880), serviced by a higher proportion of result in an increase in density of and in the information presented below. native pollinator species are likely to surrounding vegetation (Kelly and We also reviewed monitoring reports maintain higher reproductive output Burrascano 2001, p. 4). from private firms, the City of San and persist for more generations than Monardella viminea most generally populations served by fewer native Diego, Friends of Los Pen˜ asquitos occurs on soil types with high sand Canyon, the Service, and MCAS pollinators or with pollination content, often characterized by sediment limitations of any kind (Javorek et al. Miramar; technical reports; the CNDDB; and cobble deposited by flood events GIS data (such as species occurrence 2002, p. 350). Pollinators also require (Scheid 1985, p. 35; Rebman and Dossey space for individual and population data, soil data, land use, topography, 2006, pp. 5–6). The Natural Resources aerial imagery, and ownership maps); growth, so adequate habitat should be Conservation Service soil series where preserved for pollinators in addition to correspondence to the Service from M. viminea is known to occur includes recognized experts; and other the habitat necessary for M. viminea (but may not be limited to): Stony Land, plants. In this final critical habitat rule, information as available. Additional Redding Gravelly Loam, Visalia Sandy information can be found in the final we acknowledge the importance of Loam, and Riverwash (Rebman and pollinators to M. viminea. However, we listing rule published in the Federal Dossey 2006, p. 6). Register on October 13, 1998 (63 FR do not include pollinators and their 54938). We have determined that M. Cover or Shelter habitats as a primary constituent viminea requires the physical or Monardella viminea requires open to element (PCE), because: (1) Meaningful biological features described below. semi-open, foliar (canopy) cover data on specific pollinators and their consisting of coastal sage and riparian habitat needs are lacking; and (2) we Space for Individual and Population were not able to quantify the amount of Growth and for Normal Behavior scrub with limited herbaceous understory. Monardella viminea plants habitat needed for pollinators, given the Habitats that provide space for growth usually occur in areas with an average lack of information on the specific and persistence of Monardella viminea of 75 percent ground cover, of which pollinators of M. viminea. include: (1) Washes in coastal sage approximately 65 percent is woody Habitats Protected From Disturbance or scrub or riparian scrub vegetation; (2) cover and less than 10 percent Representative of the Historical, terraced secondary benches, channel herbaceous cover (Scheid 1985, pp. 32, Geographical, and Ecological banks, and stabilized sand bars; (3) soils 37–38). The species is most commonly Distributions of the Species with a high content of coarse-grained associated with Eriogonum fasciculatum sand and low content of silt and clay; (California buckwheat) and Baccharis The long-term conservation of and (4) open ground cover, less than sarothroides (Scheid 1985, pp. 38–39; Monardella viminea is dependent on half of which is herbaceous vegetation Rebman and Dossey 26, p. 22; Ince several factors, including, but not cover (Scheid 1985, pp. 30–35; Service 2010, p. 3). Herbaceous cover, such as limited to, maintenance of areas 1998, p. 54938; Elvin and Sanders 2003, annual grasses, can grow in greater necessary to sustain natural ecosystem pp. 426, 430; Kelly and Burrascano density than native riparian and components, functions, and processes 2006, p. 51). chaparral species, and, through resource (such as full sun exposure and natural hydrological regimes) and sufficient Food, Water, Air, Light, Minerals, or competition and shading, herbaceous cover would likely prevent natural adjacent suitable habitat for vegetative Other Nutritional or Physiological reproduction, population expansion, Requirements growth and reproduction of M. viminea (Rebman and Dossey 2006, p. 12). and pollination. Monardella viminea is most often Therefore, suitable habitat for the Open or semi-open, rocky, sandy found on the first above-water sandbar species is not dominated by herbaceous alluvium on terraced floodplains, in intermittent streambeds where water cover. benches, stabilized sandbars, channel runs for 24 to 48 hours after heavy rain banks, and sandy washes along events (Elvin and Sanders 2003, p. 430; Sites for Breeding, Reproduction, and ephemeral streams, washes, and Kelly and Burrascano 2006, p. 51). It can Rearing (or Development) of Offspring floodplains is needed for individual and also be found within the streambed if Monardella viminea is visited by population growth of Monardella flow is infrequent enough and the soil numerous bees and butterflies, and is viminea (Scheid 1985, pp. 30–31, 34– is stable (Scheid 1985, pp. 3, 38–39). likely pollinated by a diverse array of 35). Within those areas, M. viminea The most robust M. viminea individuals insects, each of which has its own requires adequate sunlight to grow. tend to occur in wide, open canyons habitat requirements; however, we are Woody overgrowth is common and can with broad channels and secondary currently unaware of which insect help to maintain adequate soil moisture, benches, as opposed to narrow, graded species pollinate M. viminea. but areas crowded with herbaceous

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understory may not provide adequate (b) With surrounding vegetation that Management activities that could light for M. viminea. provides semi-open, foliar cover with: ameliorate these threats include, but are The 2008 5-year review (Service 2008, (1) Little or no herbaceous understory; not limited to: Removal of nonnative p. 7) concluded that Monardella (2) Little to no canopy cover; vegetation by weeding, planting of viminea requires a natural hydrological (3) Open ground cover, less than half native species along stream courses in regime to maintain or create suitable of which is herbaceous vegetation canyons to help control erosion, use of habitat conditions, including the cover; silt fences to control erosion, restriction floodplains, benches, and sandbars (4) Some shrub cover; and of development that alters natural where M. viminea grows. Characteristics (5) An association of other plants, hydrological characteristics of stream of riparian channels and seasonal including Eriogonum fasciculatum courses in canyons, and implementation streamflow determine timing, pattern, (California buckwheat) and Baccharis of prescribed burns. Additionally, and depth of deposition of alluvial sarothroides (broom baccharis); specialized dams and smaller barriers materials and formation of sandbars and (c) That contain ephemeral drainages could be installed in canyons to help channel banks, which in turn determine that: address floodwater runoff that results location of plants within the streambed (1) Are made up of coarse, rocky, or from upstream development (which can and suitable habitat to support sandy alluvium; and cause erosion and loss of clumps of individuals and clumps of M. viminea (2) Contain terraced floodplains, Monardella viminea), although these (Scheid 1985, pp. 30–31 and 36–37). terraced secondary benches, stabilized dams must be of adequate size and Decreases in flows, which would sandbars, channel banks, or sandy strength to withstand increased storm otherwise scour annual grasses and washes; and flow caused by urbanization. seeds from the area, result in increased (d) That have soil with high sand Criteria Used To Identify Critical cover of nonnative grasses and content, typically characterized by Habitat decreased light and moisture sediment and cobble deposits, and availability for M. viminea. Rapidly further characterized by a high content As required by section 4(b)(1)(A) of growing nonnative grasses can smother of coarse, sandy grains and low content the Act, we use the best scientific and seedling and mature M. viminea and of silt and clay. commercial data available to designate prevent natural growth (Rebman and All units designated as critical habitat critical habitat. We review available Dossey 2006, p. 12). Additionally, are currently occupied by Monardella information pertaining to the habitat increased flows can result in erosion viminea and contain the PCE. requirements of the species. In that may alter floodplains and erode Special Management Considerations or accordance with the Act and its banks, channel bars, and sandy washes Protection implementing regulation at 50 CFR where M. viminea occurs (Kelly and 424.12(e), we consider whether When designating critical habitat, we Burrascano 2006, pp. 65–69). designating additional areas—outside assess whether the physical or those currently occupied as well as Primary Constituent Elements for biological features within the those occupied at the time of listing— Monardella viminea geographical area occupied by the is necessary to ensure the conservation Under the Act and its implementing species at the time of listing that are of the species. We are not designating regulations, we are required to identify essential to the conservation of the any areas outside the geographical area the physical or biological features species may require special occupied by the species at the time of essential to the conservation of management considerations or listing, because currently occupied areas Monardella viminea in areas occupied protection. (which are within the area occupied by at the time of listing, focusing on the The areas designated as critical the species at the time of listing) are features’ primary constituent elements habitat will require some level of sufficient for the conservation of the (PCEs). We consider PCEs to be the management or protection to address species. specific elements of physical or the current and future threats to the This final rule updates the biological features that provide for a physical or biological features. In all information used in our 2006 final species’ life-history processes and are units, special management designation of critical habitat for essential to the conservation of the considerations or protection may be Monardella linoides ssp. viminea (71 FR species. required to provide for the sustained 65662, November 8, 2006) with the best Based on our current knowledge of function of the ephemeral washes on available data, including new the physical or biological features and which Monardella viminea depends. information not available when the 2006 habitat characteristics required to The features essential to the rule was completed. sustain the species’ life-history conservation of Monardella viminea This section provides details of the processes, we determine that the PCE may require special management process we used to delineate the critical specific to Monardella viminea is considerations or protection to reduce habitat designation. This final critical riparian channels with ephemeral the following threats, among others: habitat designation is based on the best drainages and adjacent floodplains: Cover by nonnative plant species that scientific data available, including our (a) With a natural hydrological crowds, shades, or competes for analysis of the distribution and ecology regime, in which: resources; habitat alteration due to of Monardella viminea as identified in (1) Water flows only after peak altered hydrology from urbanization and the 1998 final listing rule, the 2008 5- seasonal rainstorms; associated infrastructure; and any year review, new information on the (2) High runoff events periodically actions that alter the natural channel species’ distribution and ecology made scour riparian vegetation and structure or course, particularly available since listing, reclassification of redistribute alluvial material to create increased water flow that could erode M. viminea as a species, and State and new stream channels, benches, and soils inhabited by M. viminea or cover local measures in place for the sandbars; and them with sediment deposits. conservation of M. viminea. Specific (3) Water flows for usually less than Special management considerations differences from the 2006 designation of 48 hours after a rain event, without or protection are required within critical critical habitat are described in the long-term standing water; habitat areas to address these threats. Summary of Changes from Previously

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Designated Critical Habitat section in (a) We determined occurrence used the widest distance from the the proposed rule that was published on locations likely to belong to the same streambed to help identify areas that June 9, 2011 (76 FR 33880). population. Regardless of observation meet the definition of critical habitat, The areas in this final designation of date, all occurrence locations rather than the median (or another critical habitat for Monardella viminea downstream from an extant occurrence, value). We wanted to ensure that we were occupied by the species at the time and which would be connected to the captured all potential areas that have of listing and remain occupied today, upstream occurrence during runoff the physical or biological features and they possess those specific physical events (that could transport seeds essential to the conservation of or biological features identified in the downstream), were considered part of Monardella viminea versus those areas PCE that are essential to the the same extant occurrence. This was that only contain occurrences of the conservation of the species and which accomplished by examining survey species. We found that this 490-ft (150- may require special management reports from MCAS Miramar, the City of m) distance, when applied to all considerations or protection. For this San Diego, and the Friends of Los streambeds where M. viminea occurred, final rule, we completed the following Pen˜ asquitos Canyon. captured all clumps of M. viminea steps to delineate critical habitat: (1) (b) In order to create a scientifically except two in the southern end of West Compiled all available data from based approach to drawing critical Sycamore Canyon. The two southern observations of M. viminea into a GIS habitat units, we first examined the GIS clumps are located in an area that database; (2) identified occurrences that vegetation data polygons containing appears to be a remnant habitat wash at were extant at the time of listing and Monardella viminea occurrences the end of West Sycamore Canyon, those occurrences that are currently (SANDAG 1995), because the species is which likely received additional extant or contain transplanted M. frequently associated with coastal sage streamflow during storm events longer viminea; (3) identified areas containing scrub and riparian scrub habitats than 48 hours after a rain event (or more all the components that make up the (Scheid 1985, p. 3; Elvin and Sanders frequently than just after a peak PCE that may require special 2003, p. 430; Kelly and Burrascano seasonal rainstorm), and thus does not management considerations or 2006, p. 51). In an attempt to better likely support occupancy long term or protection; (4) circumscribed distinguish the width of the specific significantly contribute to population boundaries of potential critical habitat areas within drainages that contain the persistence. units based on the above information; PCE, we searched for a correlation The conservation of Monardella and (5) removed all areas that did not between habitat type and clumps of M. viminea depends on preservation of have the PCE and, therefore, are not viminea. We found M. viminea occurred habitat containing the physical or considered essential to the conservation in areas mapped as 11 different biological features essential to the of M. viminea, and areas that are exempt vegetation types, with the greatest conservation of the species. Like most from critical habitat under section number (45 percent) located within plants, M. viminea is occasionally found Diegan Coastal Sage Scrub. We noted in areas considered atypical for the 4(a)(3)(B)(i) of the Act. These steps are that mapped polygons of this vegetation species. For example, a plant was once described in detail below. type and some other vegetation types found growing in mesa-top habitat along (1) We compiled observational data were relatively large and did not a tributary of Rose Canyon (Rebman and from the following sources to include in correspond well with the drainage areas Dossey 2006, p. 24, no EO number). We our GIS database for Monardella where M. viminea and the PCE were considered that the habitat areas viminea: (a) CNDDB data and likely to occur, indicating that they were outlined using the method described supporting observation documentation poor predictors for areas that contain above will capture only the habitat that on M. viminea; (b) monitoring reports the physical or biological features contains the physical or biological from MCAS Miramar; and (c) essential to the conservation of M. features essential to the conservation of monitoring reports from private and viminea. M. viminea. We determined the distance local government organizations, such as (c) We examined polygons that were of 490 ft (150 m) was appropriate to the Carroll Canyon Business Park and labeled as riparian vegetation for capture areas surrounding occupied the City of San Diego Subarea Plan possible useful information to assist in streambeds that contain the physical or under the MSCP. No monitoring reports delineating potential critical habitat biological features essential to the from the County of San Diego were areas because Monardella viminea is conservation of the species and that available. generally described as a riparian- meet the definition of critical habitat, (2) We considered extant all associated species. We found that, and we applied it across the species’ occurrences where presence of living although southern sycamore-alder range. plants has been confirmed within the riparian woodland is rare in canyons (4) We removed all areas not past 10 years. Using this information, where M. viminea exists, where it is containing the physical or biological we determined that eight occurrences present it closely corresponds to areas features essential to the conservation of are currently extant. Based on data from that contain M. viminea and the the species. Monardella viminea the CNDDB, we confirmed that all eight physical or biological features essential requires all components of the PCE for occurrences were known and extant at to its conservation. Because of this close growth and reproduction; thus, only the time of listing. We also documented correlation, we used the southern areas that contained all components of the presence of transplanted individual sycamore-alder riparian woodland the PCE were considered as critical plants in Carroll, San Clemente, and habitat type to identify the widest habitat. We removed areas in Rose Lopez Canyons, and included them in distance of a riparian vegetation type Canyon (no EO number), Elanus Canyon our analysis. polygon from an occupied streambed (EO 24), and Lopez Canyon (EO 1), and (3) To identify areas containing all the line; we found this distance to be 490 all four transplanted occurrences. All of components that make up the PCE for ft (150 m). these areas are characterized by dense Monardella viminea that may require (d) We then tested the 490-ft (150-m) urban development on at least one special management considerations or value as an estimate of the distance from border. As discussed under Factor A for protection, we conducted the following the streambed most likely to capture the M. viminea, urbanization results in steps: PCE throughout the species’ range. We increased frequency and intensity of

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storm flow events that wash away exclusion of such developed lands. Any designating five units as critical habitat sandbars rather than scouring them of such lands inadvertently left inside for Monardella viminea. Within the five vegetation. Further discussion of why critical habitat boundaries shown on the proposed units, we identified essential we did not include these occurrences as maps of this final rule have been habitat located on MCAS Miramar that critical habitat appears in the Summary excluded by text in the rule and are not is exempt from designation under of Changes from Previously Designated designated as critical habitat. Therefore, 4(a)(3)(B)(i) of the Act. Based on the Critical Habitat section in the proposed a Federal action involving these lands updated boundaries of MCAS Miramar rule to designate critical habitat (76 FR will not trigger section 7 consultation (see Summary of Changes from 33880, June 9, 2011). We also removed with respect to critical habitat and the Proposed Rule above and Application of areas within the boundaries of MCAS requirement of no adverse modification Section 4(a)(3) of the Act below), we Miramar for this final rule because these unless the specific action would affect have determined that additional areas are exempt from critical habitat the physical or biological features in the portions of Units 3 and 4, and all of Unit designation under section 4(a)(3)(B)(i) of adjacent critical habitat. 5 are exempt under section 4(a)(3)(B)(i) We are designating as critical habitat the Act (see Exemptions section below). of the Act. We are excluding the lands that we have determined are remaining portions of Unit 3 and Unit When determining critical habitat occupied at the time of listing and that boundaries within this final rule, we contain sufficient physical or biological 4 under section 4(b)(2) of the Act (see made every effort to avoid including features to support the life-history Summary of Changes from Proposed developed areas, such as lands covered processes essential for the conservation Rule above and Application of Section by buildings, pavement, and other of the species. All units contain the PCE 4(b)(2) of the Act below). Thus, in this structures, because such lands lack essential to support Monardella viminea final rule, we designate two critical physical or biological features for life processes. habitat units. The critical habitat Monardella viminea. The scale of the identified in each unit is shown in maps we prepared under the parameters Final Critical Habitat Designation Table 3, and the changes of ownership for publication in the Code of Federal In the proposed rule published June 9, due to the changed MCAS Miramar Regulations may not reflect the 2011 (76 FR 33880), we proposed boundaries are shown in Table 4.

TABLE 3—COMPARISON OF THE 2006 FINAL CRITICAL HABITAT DESIGNATION FOR Monardella linoides SSP. Viminea, THE 2011 PROPOSED CRITICAL HABITAT DESIGNATION FOR M. viminea, AND THE 2012 FINAL CRITICAL HABITAT DES- IGNATION FOR M. viminea [Note: This table does not include the 255 ac (103 ha) of habitat now identified as occupied by M. stoneana. Further details on land ownership, exclusions and exemptions in this final rule are given in Tables 4 and 5]

2006 Final critical habitat 2011 Proposed critical habitat 2012 Final critical habitat Location Area containing Area containing Area containing Unit name essential features Unit name essential features Unit name essential features ac (ha) ac (ha) ac (ha)

Sycamore Canyon Unit 1 Partial 373 (151) ...... Unit 1 Partial 350 (142) ...... Unit 1 Partial 350 (142). 4(a)(3)(B)(i) ex- 4(a)(3)(B)(i) ex- 4(a)(3)(B)(i) ex- emption. emption. emption. West Sycamore ...... 529 (214) ...... Unit 2 Partial 577 (233) ...... Unit 2 Partial 577 (234). Canyon. 4(a)(3)(B)(i) ex- 4(a)(3)(B)(i) ex- emption. emption. Spring Canyon ...... 245 (99) ...... Unit 3 Partial 273 (111) ...... No name; all 273 (111). 4(a)(3)(B)(i) ex- acres exempt or emption. excluded. East San Clemente ...... 638 (258) ...... Unit 4 Partial 467 (189) ...... No name; all 467 (189). Canyon. 4(a)(3)(B)(i) ex- acres exempt or emption. excluded. West San Clemente ...... 114 (46) ...... Unit 5 Partial 227 (92) ...... No name; com- 227 (92). Canyon. 4(a)(3)(B)(i) ex- plete exemption. emption. Lopez Canyon ...... 77 (31) ...... 0 (0) ...... 0 (0). Elanus Canyon ...... 82 (33) ...... 0 (0) ...... 0 (0). Rose Canyon ...... 185 (75) ...... 0 (0) ...... 0 (0).

Total Habitat Con- ...... 2,242 (907) ...... 1,894 (767) ...... 1,894 (767). taining Essential Features **.

Total Exempt ...... 1,863 (754) ...... 1,546 (626) ...... 1,563 (633)

Total Ex- ...... 306 (124) (ex- ...... 208 (84) (consid- ...... 210 (85) (ex- cluded **. cluded in 2006). ered for exclu- cluded). sion).

Total Critical ...... 73 (30) Des- ...... 348 (141) Pro- ...... 122 (50) Des- Habitat. ignated. posed. ignated. Note: Values in this table may not sum due to rounding. ** See Table 4 for acreages considered for exclusion in each unit.

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The critical habitat areas described (2) West Sycamore Canyon. Both units unit is shown in Table 4, along with below constitute our best assessment at are currently occupied by the species. ownership acreages for all of the units this time of areas that meet the Both units are also specific areas within described in the proposed rule and definition of critical habitat. The two the geographic area occupied by the acreages exempt or excluded in this units we are designating as critical species at the time it was listed. The final rule. habitat are: (1) Sycamore Canyon, and approximate area of each critical habitat

TABLE 4—CRITICAL HABITAT UNITS FOR Monardella viminea, SHOWING ESTIMATED AREA IN ACRES (HECTARES), LAND OWNERSHIP, AREAS EXCLUDED UNDER SECTION 4(b)(2) OF THE ACT, AND AREAS EXEMPT UNDER SECTION 4(a)(3)(B)(i) OF THE ACT

Total area containing Final critical Location Federal ac State and local Private ac (ha) essential Area excluded Areas exempt habitat (ha) ac (ha) features ac ac (ha) ** ac (ha) ac (ha) (ha)

Unit 1. Sycamore Can- yon ...... 153 (62) 22 (9) 175 (71) 350 (142) 80 (32) 153 (62) 118 (48) Unit 2. West Sycamore Canyon ...... 551 (222) 26 (11) 0 (0) 577 (234) 22 (9) 551 (222) 4 (2) Unit 3. Spring Canyon 170 (69) 5 (2) 98 (40) 273 (111) 103 (42) 170 (69) 0 (0) Unit 4. East San Clemente Canyon ..... 462 (187) 5 (2) 0 (0) 467 (189) 5 (2) 462 (187) 0 (0) Unit 5. West San Clemente Canyon ..... 227 (92) 0 (0) 0 (0) 227 (92) 0 (0) 227 (92) 0 (0)

Total Habitat Area 1,563 (633) 57 (23) 273 (111) 1,894 (767) 210 (85) 1,563 (633) 122 (50) Note: Values in this table may not sum due to rounding. ** See Exclusions section for details of acreages excluded in each unit.

We present brief descriptions of the suitable habitat within the canyon the species’ range and over 25 percent two critical habitat units below, and where plants are not currently growing, of the species’ total population (Tierra reasons why they meet the definition of the unit provides space for the growth Data 2011, p. 12), meaning this is an critical habitat for Monardella viminea. and expansion of the species. This unit important unit that supports genotypes contains the physical or biological and diversity not found among the more Unit 1: Sycamore Canyon features essential to the conservation of impoverished occurrences. Unit 1 consists of 118 ac (48 ha), and M. viminea, including riparian channels Additionally, this canyon is one of few is located in Sycamore Canyon at the with a natural hydrological regime, that contains seedlings and juveniles northeastern boundary of MCAS ephemeral drainages made up of rocky (Tierra Data 2011, pp. 16–17), Miramar, north of Santee Lakes in San or sandy alluvium, sandy soil with demonstrating that reproduction is Diego County, California. These acres sediment and cobble deposits, and occurring and the habitat in this unit is fall within the boundaries of the City of surrounding vegetation that provides currently suitable to support all life- Santee, which has no approved MSCP. semi-open foliar cover. The PCE may history phases of this declining species. This canyon is the only place where require special management The plants in this canyon were recently Monardella viminea is found in oak considerations or protection to address observed to be in good health with little woodland habitat, and is one of the few threats from nonnative plant species to no pressure from herbivores, in areas in the range of M. viminea with and erosion of the canyon (City of San contrast to many other areas such as San mature riparian habitat (Rebman and Diego 2005, p. 68; 2006, p. 10; 2009, Clemente or Carroll Canyon, where Dossey 2006, p. 23). Sycamore Canyon p. 2). Please see the Special individuals are declining or are in poor is essential to the recovery of the species Management Considerations or health (Tierra Data 2011, p. 25; Ince because it supports over 350 individual Protection section of this final rule for 2010, Table 3). The habitat in this unit plants, or approximately 18 percent of a discussion of the threats to M. viminea provides redundancy and resiliency for the species’ total population (City of San habitat and potential management M. viminea, and because there are areas Diego 2010a, p. 257; Tierra Data 2011, considerations. of suitable habitat within the canyon p. 12), meaning this is an important unit Unit 2: West Sycamore Canyon where plants are not currently growing, that supports genotypes and diversity the unit provides space for the growth not found among the more Unit 2 consists of 4 ac (2 ha) of land and expansion of the species. Unit 2, impoverished occurrences. owned by water districts, and is located which contains critical habitat for M. Additionally, this canyon is one of few in West Sycamore Canyon adjacent to viminea in that portion of West that contains seedlings and juveniles the eastern section of MCAS Miramar, Sycamore Canyon located outside of (Tierra Data 2011, pp. 16–17), in San Diego County, California. The MCAS Miramar, includes the physical demonstrating that reproduction is northernmost point of the unit is just or biological features essential to the occurring and the habitat in this unit is outside the boundary of MCAS conservation of M. viminea, including currently suitable to support all life- Miramar. West Sycamore Canyon, in riparian channels with a natural history phases of this declining species. which Unit 2 is found, is essential to the hydrological regime, ephemeral The habitat in this unit provides recovery of Monardella viminea because drainages made up of rocky or sandy redundancy and resiliency for M. it contains the largest number of M. alluvium, sandy soil with sediment and viminea and, since there are areas of viminea individuals of any canyon in cobble deposits, and surrounding

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vegetation that provides semi-open Emergency Management Agency). those actions with discretionary foliar cover. The PCE in this unit may Federal actions not affecting listed involvement or control may affect require special management species or critical habitat, and actions subsequently listed species or considerations or protection to address on State, tribal, local, or private lands designated critical habitat. threats associated with erosion from that are not federally funded or Application of the ‘‘Adverse heavy rainfall events. Please see the authorized, do not require section 7 Modification’’ Standard Special Management Considerations or consultation. Protection section of this final rule for As a result of section 7 consultation, The key factor related to the adverse a discussion of the threats to M. viminea we document compliance with the modification determination is whether, habitat and potential management requirements of section 7(a)(2) through with implementation of the proposed considerations. our issuance of: Federal action, the affected critical (1) A concurrence letter for Federal habitat would continue to serve its Effects of Critical Habitat Designation actions that may affect, but are not intended conservation role for the Section 7 Consultation likely to adversely affect, listed species species. Activities that may destroy or or critical habitat; or adversely modify critical habitat are Section 7(a)(2) of the Act requires (2) A biological opinion for Federal those that alter the physical or Federal agencies, including the Service, actions that may affect, or are likely to biological features to an extent that to ensure that any action they fund, adversely affect, listed species or critical appreciably reduces the conservation authorize, or carry out is not likely to habitat. value of critical habitat for Monardella jeopardize the continued existence of When we issue a biological opinion viminea. As discussed above, the role of any endangered species or threatened concluding that a project is likely to critical habitat is to support life-history species or result in the destruction or jeopardize the continued existence of a needs of the species and provide for the adverse modification of designated listed species and/or destroy or conservation of the species. critical habitat of such species. In adversely modify critical habitat, we Section 4(b)(8) of the Act requires us addition, section 7(a)(4) of the Act provide reasonable and prudent to briefly evaluate and describe, in any requires Federal agencies to confer with alternatives to the project, if any are proposed or final regulation that the Service on any agency action which identifiable, that would avoid the designates critical habitat, activities is likely to jeopardize the continued likelihood of jeopardy and/or involving a Federal action that may existence of any species proposed to be destruction or adverse modification of destroy or adversely modify such listed under the Act or result in the critical habitat. We define ‘‘reasonable habitat, or that may be affected by such destruction or adverse modification of and prudent alternatives’’ (at 50 CFR designation. critical habitat. 402.02) as alternative actions identified Activities that may affect critical Decisions by the 5th and 9th Circuit during consultation that: habitat, when carried out, funded, or Courts of Appeals have invalidated our (1) Can be implemented in a manner authorized by a Federal agency, should regulatory definition of ‘‘destruction or consistent with the intended purpose of result in consultation for Monardella adverse modification’’ (50 CFR 402.02) the action, viminea. These activities include, but (see Gifford Pinchot Task Force v. U.S. (2) Can be implemented consistent are not limited to: Fish and Wildlife Service, 378 F. 3d with the scope of the Federal agency’s (1) Actions that would alter channel 1059 (9th Cir. 2004) and Sierra Club v. legal authority and jurisdiction, morphology or geometry and resultant U.S. Fish and Wildlife Service et al., 245 (3) Are economically and hydrology to a degree that appreciably F.3d 434, 442 (5th Cir. 2001)), and we technologically feasible, and reduces the value of critical habitat for do not rely on this regulatory definition (4) Would, in the Director’s opinion, either the long-term survival or recovery when analyzing whether an action is avoid the likelihood of jeopardizing the of the species. Such activities could likely to destroy or adversely modify continued existence of the listed species include, but are not limited to: Water critical habitat. Under the statutory and/or avoid the likelihood of impoundment, channelization, or provisions of the Act, we determine destroying or adversely modifying diversion; road and bridge construction destruction or adverse modification on critical habitat. (including instream structures); the basis of whether, with Reasonable and prudent alternatives licensing, relicensing, or operation of implementation of the proposed Federal can vary from slight project dams or other water impoundments; action, the affected critical habitat modifications to extensive redesign or and mining and other removal or would continue to serve its intended relocation of the project. Costs deposition of materials. Examples of conservation role for the species. associated with implementing a effects these activities may have on If a Federal action may affect a listed reasonable and prudent alternative are Monardella viminea habitat include, but species or its critical habitat, the similarly variable. are not limited to: A permanent removal responsible Federal agency (action Regulations at 50 CFR 402.16 require or reduction of suitable space for agency) must enter into consultation Federal agencies to reinitiate individual and population growth, or an with us. Examples of actions that are consultation on previously reviewed increase in woody or herbaceous ground subject to the section 7 consultation actions in instances where we have cover (due to increased moisture levels process are actions on State, tribal, listed a new species or subsequently in soil occupied by the species) that local, or private lands that require a designated critical habitat that may be affects the availability of suitable habitat Federal permit (such as a permit from affected and the Federal agency has for reproduction and survival of M. the U.S. Army Corps of Engineers under retained discretionary involvement or viminea. section 404 of the Clean Water Act control over the action (or the agency’s (2) Actions that would significantly (33 U.S.C. 1251 et seq.) or a permit from discretionary involvement or control is affect pollinator abundance or efficacy, the Service under section 10 of the Act) authorized by law). Consequently, directly or indirectly, to a degree that or that involve some other Federal Federal agencies sometimes may need to appreciably reduces the value of the action (such as funding from the Federal request reinitiation of consultation with critical habitat for the long-term survival Highway Administration, Federal us on actions for which formal or recovery of the species. Such Aviation Administration, or the Federal consultation has been completed, if activities include, but are not limited to:

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Destruction of critical habitat that reduce or change sites for reproduction Marine Corps Air Station Miramar contains pollinators, introduction of and development of offspring, and (MCAS Miramar) nonnative insects into designated introduce or support nonnative plant Marine Corps Air Station Miramar has critical habitat that could compete with taxa that compete with M. viminea. an approved INRMP (Gene Stout and native pollinators, clearing or trimming Exemptions Associates et al. 2011) that addresses of other native vegetation in designated Monardella viminea, and the Marine critical habitat in a manner that Application of Section 4(a)(3) of the Act Corps has committed to working closely diminishes appreciably its utility to The Sikes Act Improvement Act of with the Service and CDFG to support Monardella viminea pollinators 1997 (Sikes Act) (16 U.S.C. 670a) continually refine the existing INRMP as (such as clearing vegetation for fuels required each military installation that part of the Sikes Act’s INRMP review control), and application of pesticides. includes land and water suitable for the process. In accordance with section (3) Actions that would significantly conservation and management of 4(a)(3)(B) of the Act, the Secretary has alter sediment deposition patterns and natural resources to complete an determined that conservation efforts rates within a stream channel to a integrated natural resources identified in the INRMP provide a degree that appreciably reduces the management plan (INRMP) by benefit to M. viminea occurring on value of the critical habitat for the long- November 17, 2001. An INRMP MCAS Miramar (see the following term survival or recovery of the species. integrates implementation of the Such activities include, but are not section that details this determination). military mission of the installation with Therefore, the 1,563 ac (633 ha) of limited to: Excessive sedimentation stewardship of the natural resources from road construction; excessive habitat occupied by M. viminea at the found on the base. Each INRMP time of listing, on which are found the recreational trail use; residential, includes: commercial, and industrial physical or biological features essential (1) An assessment of the ecological to its conservation and thus are development; aggregate mining; and needs on the installation, including the other watershed and floodplain qualified for consideration as critical need to provide for the conservation of habitat on MCAS Miramar, are exempt disturbances. These activities may listed species; reduce the amount and distribution of from this critical habitat designation for (2) A statement of goals and priorities; M. viminea under section 4(a)(3)(B)(i) of suitable habitat for individual and (3) A detailed description of the Act. The rationale for this population growth, and reduce or management actions to be implemented exemption is the same as it was for the change habitat quality for reproduction, to provide for these ecological needs; 2006 designation (71 FR 65662, germination, and development. and (4) Actions that would significantly (4) A monitoring and adaptive November 8, 2006). In the previous final critical habitat alter biotic features to a degree that management plan. appreciably reduces the value of the Among other things, each INRMP designation for Monardella viminea, we critical habitat for both the long-term must, to the extent appropriate and determined that essential habitat on survival or the recovery of the species. applicable, provide for fish and wildlife MCAS Miramar is exempt from the Such activities include, but are not management; fish and wildlife habitat designation of critical habitat (71 FR limited to: Modifying the habitats that enhancement or modification; wetland 65662, November 8, 2006), and we do so support Monardella viminea, including protection, enhancement, and again in this revised designation. We coastal sage scrub, riparian scrub, and restoration where necessary to support base this decision on the conservation (in some areas) riparian oak woodland. fish and wildlife; and enforcement of benefits to M. viminea identified in the These activities may include large-scale applicable natural resource laws. INRMP developed by MCAS Miramar in application of herbicides, release of The National Defense Authorization May 2000 and the updated INRMP chemicals or other toxic substances, or Act for Fiscal Year 2004 (Pub. L. 108– prepared by MCAS Miramar in April activities that increase the possibility of 136) amended the Act to limit areas 2011 (Gene Stout and Associates et al. accidental sewage outflows. These eligible for designation as critical 2011). We determined that conservation activities may reduce the amount or habitat. Specifically, section 4(a)(3)(B)(i) efforts identified in the INRMP provide quality of suitable habitat for of the Act (16 U.S.C. 1533(a)(3)(B)(i)) a benefit to M. viminea on MCAS individuals and populations; reduce or now provides: ‘‘The Secretary shall not Miramar (Gene Stout and Associates et change sites for reproduction and designate as critical habitat any lands or al. 2011, section 7–19). We reaffirm that development; or reduce the quality of other geographical areas owned or continued conservation efforts on water, light, minerals, or other controlled by the Department of MCAS Miramar provide a benefit to M. nutritional or physiological Defense, or designated for its use, that viminea. Therefore, lands containing requirements. are subject to an integrated natural features essential to the conservation of (5) Actions that could contribute to resources management plan prepared M. viminea on this installation are the introduction or support of nonnative under section 101 of the Sikes Act (16 exempt from this critical habitat species into critical habitat to a degree U.S.C. 670a), if the Secretary determines designation for M. viminea under that could appreciably reduce the value in writing that such plan provides a section 4(a)(3)(B)(i) of the Act. of the critical habitat for the long-term benefit to the species for which critical Provisions in the INRMP for MCAS survival or recovery of Monardella habitat is proposed for designation.’’ Miramar benefit Monardella viminea by viminea. Such activities include, but are We consult with the military on the requiring efforts to avoid and minimize not limited to: Landscape disturbance or development and implementation of impacts to this species and riparian plant introductions that result in INRMPs for installations with federally watersheds. All suitable habitat for M. increased numbers of individuals and listed species. We analyzed the INRMP viminea is managed as specified for taxa of nonnative species for landscape developed by MCAS Miramar, the only Level I or Level II Habitat Management or erosion control purposes, or addition military installation located within the Areas defined by the INRMP of nutrients that would fertilize range of the critical habitat designation (Kassebaum 2010, pers. comm.). Under nonnative plant taxa. These activities for Monardella viminea, to determine if the INRMP, Level I Management Areas may reduce the suitable space for the military lands are exempt under receive the highest conservation priority individual and population growth, section 4(a)(3) of the Act. of the various management areas on

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MCAS Miramar. The conservation of which factor(s) to use and how much entities and potential conservation watersheds in the Level I Management weight to give to any factor. agreements that may stem from those Areas is achieved through: In considering whether to exclude a partnerships. Additionally, we consider (1) Education of base personnel, particular area from the designation, we factors including, but not limited to, (2) Implementation of proactive identify the benefits of including the whether the plan is finalized, how it measures that help avoid accidental area in the designation, identify the provides for the conservation of the impacts (such as signs and fencing), benefits of excluding the area from the essential physical or biological features, designation, and evaluate whether the (3) Development of procedures to whether there is a reasonable benefits of exclusion outweigh the respond to and restore accidental expectation that the conservation benefits of inclusion. If the analysis management strategies and actions impacts, and indicates that the benefits of exclusion contained in a management plan will be (4) Monitoring of M. viminea outweigh the benefits of inclusion, the implemented into the future, whether occurrences on MCAS Miramar (Gene Secretary may exercise his discretion to the conservation strategies in the plan Stout and Associates et al. 2011, exclude the area only if such exclusion are likely to be effective, and whether p. 7–19). would not result in the extinction of the the plan contains a monitoring program Additionally, MCAS Miramar’s species. or adaptive management to ensure that environmental security staff reviews When identifying the benefits of the conservation measures are effective projects and enforces existing inclusion for an area, we consider the and can be adapted in the future in regulations and base orders that avoid additional regulatory benefits that area response to new information. and minimize impacts to natural would receive from the protection from After identifying the benefits of resources, including Monardella adverse modification or destruction as a inclusion and the benefits of exclusion, viminea and its habitat. The INRMP for result of actions with a Federal nexus; we carefully weigh the two sides to MCAS Miramar provides a benefit to M. the educational benefits of mapping evaluate whether the benefits of viminea and includes measures essential habitat for recovery of the exclusion outweigh those of inclusion. designed to prevent degradation or listed species; and any benefits that may If our analysis indicates that the benefits destruction of the species’ riparian result from a designation due to State or of exclusion outweigh the benefits of habitat. Federal laws that may apply to critical inclusion, we then determine whether Based on the above considerations, habitat. exclusion would result in extinction. If and in accordance with section When identifying the benefits of exclusion of an area from critical habitat 4(a)(3)(B)(i) of the Act, we have exclusion, we consider, among other will result in extinction, we will not determined that Monardella viminea, things, whether exclusion of a specific exclude it from the designation. If the habitat on MCAS Miramar is subject to area is likely to avoid concentrated benefits of exclusion outweigh the the MCAS Miramar INRMP, and that economic impacts or impacts to national benefits of inclusion and exclusion will conservation efforts identified in the security, or whether exclusion may not result in extinction, the Secretary INRMP provide and will continue to result in conservation; the continuation, may exercise his discretion to exclude provide a benefit to M. viminea strengthening, or encouragement of the area. partnerships; or the implementation of a occurring in habitats within and Exclusions Based on Economic Impacts adjacent to MCAS Miramar. Therefore, management plan that provides equal to lands within this installation are exempt or more conservation than a critical Under section 4(b)(2) of the Act, we from critical habitat designation under habitat designation would provide, consider the economic impacts of section 4(a)(3) of the Act. We are not among other factors. For example, we specifying any particular area as critical including approximately 1,563 ac (633 consider our continued ability to seek habitat. In order to consider economic ha) of habitat in this critical habitat new partnerships with future plan impacts, we prepared a draft economic designation because of this exemption. participants including the State, analysis of the proposed critical habitat counties, local jurisdictions, designation and related factors Exclusions conservation organizations, and private (Industrial Economics Inc., 2011). The Application of Section 4(b)(2) of the Act landowners, which together can draft analysis, dated August 25, 2011, implement conservation actions that we was made available for public review Section 4(b)(2) of the Act states that would be unable to accomplish from September 28, 2011, through the Secretary shall designate and make otherwise. If lands within approved October 28, 2011 (76 FR 59990). revisions to critical habitat on the basis management plan areas are designated Following the close of the comment of the best available scientific data after as critical habitat, it would likely have period, a final analysis of the potential taking into consideration the economic a negative effect on our existing economic effects of the designation was impact, national security impact, and partnerships and negatively affect our developed, taking into consideration the any other relevant impact of specifying ability to establish new partnerships to public comments and any new any particular area as critical habitat. develop and implement these plans, information (Industrial Economics Inc., The Secretary may exclude an area from particularly plans that address 2012). critical habitat if he determines that the landscape-level conservation of species The intent of the final economic benefits of such exclusion outweigh the and habitats. By excluding these lands, analysis (FEA) is to identify and analyze benefits of specifying such area as part we preserve our current partnerships, the potential economic impacts of of the critical habitat, unless he promote future partnerships, and designating critical habitat for determines, based on the best scientific encourage additional conservation Monardella viminea. Some of these data available, that the failure to actions in the future. costs will likely be incurred regardless designate such area as critical habitat When we evaluate conservation plans of whether we designate critical habitat will result in the extinction of the when considering the benefits of (baseline). The economic impact of the species. In making that determination, exclusion, we consider a variety of final critical habitat designation is the statute on its face, as well as the factors. We consider the benefits of analyzed by comparing scenarios both legislative history are clear that the working relationships we have formed ‘‘with critical habitat’’ and ‘‘without Secretary has broad discretion regarding with Federal, State, local and private critical habitat.’’ The ‘‘without critical

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habitat’’ scenario represents the baseline was available for most activities to Marine Corps is implementing and that for the analysis, considering protections forecast activity levels for projects we have concluded provides a benefit to already in place for the species (for beyond a 19-year timeframe (Industrial Monardella viminea. example, under the Federal listing and Economics Inc. 2011, p. 2–14). The FEA In this final rule, we have determined other Federal, State, and local quantifies economic impacts of that there are no other lands within the regulations). The baseline, therefore, Monardella viminea conservation efforts designation of critical habitat that are represents the costs incurred regardless associated with the following categories owned or managed by the Department of of whether critical habitat is designated. of activity: Transportation and Defense, and, therefore, we anticipate The ‘‘with critical habitat’’ scenario construction. no impact on national security. describes the incremental impacts The FEA determined that only minor Consequently, the Secretary is not specifically associated with the economic impacts are likely to result exercising his discretion to exclude any designation of critical habitat for the from critical habitat designation. This areas from this final designation based species. The incremental conservation conclusion stems from the following on impacts on national security. efforts and associated impacts are those factors: (1) In the proposed rule, we not expected to occur absent the identified 210 ac (85 ha) of lands Exclusions Based on Other Relevant designation of critical habitat for the covered by HCPs that protect the species Impacts species. In other words, the incremental and its habitat within the City of San Under section 4(b)(2) of the Act, we costs are those attributable solely to the Diego and County of San Diego MSCP consider any other relevant impacts in designation of critical habitat above and Subarea Plans, and these 210 acres (85 addition to economic impacts and beyond the baseline costs; these are the ha) have been excluded in this final rule impacts on national security. We costs we consider in the final from critical habitat due to conservation consider a number of factors, including designation of critical habitat. The partnerships (see Exclusions Based on whether the landowners have developed analysis looks retrospectively at Other Relevant Impacts below)); (2) as any HCPs or other management plans baseline impacts incurred since the all critical habitat units are occupied, for the area, or whether there are species was listed, and forecasts both consultation would occur regardless of conservation partnerships that would be baseline and incremental impacts likely the designation of critical habitat; and to occur with the designation of critical (3) modifications to the project to avoid encouraged by designation of, or habitat. jeopardy to Monardella viminea and exclusion from, critical habitat. In The FEA also addresses how potential those to avoid adverse modification of addition, we look at any tribal issues, economic impacts are likely to be critical habitat are indistinguishable and consider the government-to- distributed, including an assessment of (Industrial Economics Inc. 2012, p. ES– government relationship of the United any local or regional impacts of habitat 2). Further, those administrative costs States with tribal entities. We also conservation and the potential effects of resulting from critical habitat consider any social impacts that might conservation activities on government designation are minor (total occur because of the designation. agencies, private businesses, and undiscounted costs of $10,000) Land and Resource Management Plans, individuals. The FEA measures lost (Industrial Economics Inc. 2012, Table Conservation Plans, or Agreements economic efficiency associated with ES–1). Consequently, the Secretary has Based on Conservation Partnerships residential and commercial determined not to exercise his development and public projects and discretion to exclude any areas from this Based on the information provided by activities, such as economic impacts on designation of critical habitat for entities seeking exclusion, as well as water management and transportation Monardella viminea based on economic any additional public comments we projects, Federal lands, small entities, impacts. received, we evaluated whether certain and the energy industry. A copy of the FEA with supporting lands covered by existing HCPs in the Decisionmakers can use this documents may be obtained by critical habitat units were appropriate information to assess whether the effects contacting the Carlsbad Fish and for exclusion from this final designation of the designation might unduly burden Wildlife Office (see ADDRESSES) or by pursuant to the ‘‘other relevant factor’’ a particular group or economic sector. downloading from the Internet at criterion of section 4(b)(2) of the Act. Finally, the FEA looks retrospectively at http://www.regulations.gov. For the reasons summarized below, the costs that have been incurred since the Secretary determined to exercise his species was listed in 1998 (63 FR 54938, Exclusions Based on National Security discretion to exclude essential habitat October 13, 1998), and considers those Impacts covered by the City of San Diego costs that may occur in the 19 years Under section 4(b)(2) of the Act, we Subarea Plan and the County of San following the designation of critical consider whether there are lands owned Diego Subarea Plan under the MSCP habitat. This 19-year period was or managed by the Department of from the revised critical habitat determined to be appropriate as it Defense where a national security designation for Monardella viminea. encompassed the available planning impact might exist. In preparing this Table 5 provides approximate areas (ac, information for one of the two entities rule, we have exempted from the ha) of lands that meet the definition of involved in the analysis, (its activities designation of critical habitat those critical habitat but are excluded under are forecast to the year 2030), and lands on MCAS Miramar because the section 4(b)(2) of the Act from the final because limited planning information base has an approved INRMP that the critical habitat rule.

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TABLE 5—AREAS EXCLUDED UNDER SECTION 4(b)(2) OF THE ACT FROM THIS FINAL CRITICAL HABITAT DESIGNATION FOR Monardella Viminea

Area covered by Area covered by County of San Unit ** City of San Diego Diego Subarea Subarea Plan Plan (ac (ha)) (ac (ha))

1. Sycamore Canyon ...... 47 (19) 32 (13) 2. West Sycamore Canyon ...... 22 (9) 0 (0) 3. Spring Canyon ...... 103 (42) 0 (0) 4. East San Clemente Canyon ...... 5 (2) 0 (0)

Total *** ...... 177 (72) 32 (13) Note: Values in this table may not sum due to rounding. ** The areas being excluded that are noted in this table are included in Tables 3 and 4 above. *** All areas covered by HCPs (City of San Diego Subarea Plan under the MSCP and County of San Diego Subarea Plan under the MSCP) are excluded.

In evaluating whether to exclude species. Our consideration of the City of ‘‘preserve area’’ in this final critical areas covered by a current land San Diego and County of San Diego habitat designation. When completed at management or conservation plan (HCPs Subarea Plans under section 4(b)(2) of the end of the 50-year permit term, the as well as other types), we consider the Act acknowledges the voluntary, public sector (Federal, State, and local whether: proactive conservation measures government, and the general public) (1) The plan is complete and provides undertaken by the City and County to will have contributed 108,750 ac a level of protection from adverse protect M. viminea under these plans. (44,010 ha) (63.3 percent) to the modification or destruction similar to or Taking into account all of the above preserve, of which 81,750 ac (33,083 ha) greater than that provided through a factors, we conclude that essential (48 percent) was existing public land consultation under section 7 of the Act; habitat covered by the City of San Diego when the MSCP was established, and (2) There is a reasonable expectation Subarea Plan and the County of San 27,000 ac (10,927 ha) (16 percent) will that the conservation management Diego Subarea Plan under the San Diego have been acquired. At completion, the strategies and actions will be MSCP warrants exclusion from revised private sector will have contributed implemented for the foreseeable future, critical habitat for Monardella viminea, 63,170 ac (25,564 ha) (37 percent) to the based on past practices, written and we are excluding non-Federal lands preserve as part of the development guidance, or regulations; and covered by these plans. process, either through avoidance of (3) The plan provides conservation The MSCP is a comprehensive habitat impacts or as compensatory mitigation strategies and measures consistent with conservation planning program that for impacts to biological resources currently accepted principles of encompasses 582,243 ac (235,626 ha) outside the preserve. Currently, and in conservation biology. within 12 jurisdictions of southwestern the future, Federal and State In the case of plant species such as San Diego County. The MSCP is a governments, local jurisdictions and Monardella viminea, we also consider subregional plan that identifies the special districts, and managers of that including conservation measures to conservation needs of 85 federally listed privately owned land will manage and protect listed plant species and their and sensitive species, including monitor their land in the preserve for habitats in an HCP or other conservation Monardella viminea, and serves as the species and habitat protection (MSCP plan is voluntary. In contrast to listed basis for development of subarea plans 1998, pp. 2–1, 4–2—4–4). wildlife species, the Act does not by each jurisdiction in support of The City and County Subarea Plans prohibit take of listed plant species. section 10(a)(1)(B) permits. The include multiple conservation measures Further, an incidental take permit (ITP) subregional MSCP identifies where that provide benefits to Monardella under section 10 of the Act is not mitigation activities should be focused, viminea. To date, the City of San Diego required to authorize impacts to listed such that upon full implementation of has conserved within the boundaries of plants. For this reason, the Service the subarea plans approximately the MHPA 100 percent of M. viminea actively supports and encourages the 171,920 ac (69,574 ha) of the 582,243- major occurrences and 100 percent voluntary inclusion of measures to ac (235,626-ha) MSCP plan area will be habitat for M. viminea that we identified protect listed plants and their habitats preserved and managed for covered as essential in our critical habitat in an HCP or other conservation plan by species (County of San Diego 1998, pp. analysis (see the Criteria Used to plan proponents. The prospect of 2–1, 4–2–4–4). Conservation of Identify Critical Habitat section above). potentially avoiding a designation of Monardella viminea is addressed in the Additionally, 100 percent of M. viminea critical habitat for a plant species subregional plan, and in the City and occurrences and 100 percent of essential provides a meaningful incentive to plan County of San Diego Subarea Plans. The habitat for M. viminea within the proponents to extend protections for City and County Subarea Plans identify boundaries of the County subarea plan plants and their habitat under a areas where mitigation activities should (a total of 2 percent of all M. viminea conservation plan. Achieving be focused to create its preserve areas habitat) has been conserved in the comprehensive, landscape-level (Multi-Habitat Planning Area (MHPA) or Sycamore Canyon Preserve. protection for plant species, particularly Pre-Approved Mitigation Area (PAMA)). The MSCP requires the City and the narrow endemic plant species such as Those areas of the MSCP preserve that County to develop framework and site- M. viminea, through their inclusion in are already conserved, as well as those specific management plans, subject to regional conservation plans, provides a designated for inclusion in the preserve the review and approval of the Service key conservation benefit for such under the plan, are referred to as the and CDFG, to guide the management of

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all preserve land under City and County (3) Requires mitigation at the 1:1 to benefits to the recovery of a species than control. Currently, the framework plans 3:1 (in kind) for impacts if avoidance would be provided by listing alone. for both the City and the County are in and minimization of impacts would However, for some species, and in place. The County of San Diego has also result in no reasonable use of the some locations, the outcome of these developed a site-specific management property. analyses will be similar because effects plan for the one area under its We are exercising our delegated to habitat will often also result in effects ownership that contains Monardella discretion to exclude from critical to the species. Though a jeopardy and viminea (Sycamore Canyon), which habitat a portion of Unit 1 covered by adverse modification analysis must incorporates requirements to monitor the County of San Diego Subarea Plan satisfy two different standards, any and adaptively manage M. viminea under section 4(b)(2) of the Act. This modifications to proposed actions habitat over time (City of San Diego area encompasses approximately 32 ac resulting from a section 7 consultation 1997, p. 127). The City has not yet (13 ha) of land. We are also exercising to minimize or avoid impacts to completed site-specific management our delegated discretion to exclude from Monardella viminea will be habitat- plans for some preserve lands critical habitat portions of Units 1–4 based. Because M. viminea requires containing M. viminea, including lands covered by the City of San Diego properly functioning ephemeral we proposed for revised critical habitat Subarea Plan under section 4(b)(2) of streams, drainages, and floodplains, any designation on June 9, 2011 (76 FR the Act. This area encompasses 177 ac alteration of that system will also likely 33880). However, the City is in the (72 ha) of land. All essential habitat on be detrimental to the individual plants process of drafting a management plan non-federal lands covered by HCPs (City located in that system. Additionally, all for the Mission Trails area, which of San Diego Subarea Plan under the lands considered for exclusion are includes M. viminea occurrences in MSCP and County of San Diego Subarea currently considered occupied by M. Spring Canyon (EO 26) (Miller 2011, Plan under the MSCP) are excluded viminea and will be subject to the pers. comm.). The plan specifically from the final critical habitat consultation requirements of the Act in addresses M. viminea through removal designation. the future regardless of critical habitat of nonnative vegetation, habitat Benefits of Inclusion—City of San Diego designation. Thus, it is difficult to restoration, and implementation of a Subarea Plan and the County of San differentiate measures implemented managed fire regime with a priority of Diego Subarea Plan Under the San solely to minimize impacts to the protecting biological resources (DPR Diego MSCP critical habitat from those implemented 2009, pp. 71, 76–77). Additionally, the The principal benefit of including an to minimize impacts to M. viminea. plan mandates management to address area in a critical habitat designation is Therefore, in the case of M. viminea, we the ‘‘natural history of the species and the creation of a Federal nexus through believe any additional regulatory to reduce the risk of catastrophic fire,’’ section 7(a)(2) of the Act. This section benefits of critical habitat designation possibly including prescribed fire (DPR upholds the requirement for Federal would be minimal because the 2009, p. 71). The City of San Diego has agencies to ensure actions they fund, regulatory benefits from designation are also completed a natural resource authorize, or carry out are not likely to essentially indistinguishable from the management plan for the Los result in the destruction or adverse benefits of listing. Pen˜ asquitos Canyon Preserve, which modification of any designated critical Another possible benefit of including covers M. viminea habitat (EO 1) that habitat. Section 7(a)(2) also requires that lands in a critical habitat designation is does not meet the definition of essential Federal agencies must consult with us that the designation can serve to educate habitat (see the Criteria Used to Identify on actions that may affect a listed landowners and the public regarding the Critical Habitat section above). species and refrain from undertaking potential conservation value of an area, The MSCP also provides for a actions that are likely to jeopardize the and may help focus conservation efforts biological monitoring program, and continued existence of such species. on areas of high conservation value for Monardella viminea is identified as a The benefits of inclusion of habitat certain species. Any information about first priority species for field monitoring within the critical habitat involves, in Monardella viminea and its habitat that under both the City and County Subarea part, identifying the regulatory benefit reaches a wide audience, including Plans. Currently, the County of San of critical habitat. Determining these parties engaged in conservation Diego does not monitor the one benefits is not always straightforward. activities, is valuable. In the case of M. occurrence of M. viminea in its The analysis of effects of a proposed viminea, however, there have already jurisdiction, but anticipates that project on critical habitat is both been multiple occasions when the monitoring will begin in 2013 (City of separate from and different from that of public has been educated about the San Diego 2011b, pp. 4–5). The City of the effects of a proposed project on the species. The framework regional San San Diego monitors its occurrences in species itself. The jeopardy analysis Diego MSCP was developed over a 7- Sycamore Canyon and Lopez Canyon on evaluates the action’s impact to survival year period, while the City and County an annual basis, although no monitoring and recovery of the species, while the Subarea plans have been in place for has yet been completed at other destruction or adverse modification over a decade. Implementation of the locations including Spring Canyon (EO analysis evaluates how the action could subarea plans is formally reviewed 26). Under the County’s subarea plan, affect the value of critical habitat to the yearly through publicly available annual Group A plant species, including M. listed species. Therefore, the difference reports and a public meeting, again viminea, are conserved following in outcomes of these two analyses providing extensive opportunity to guidelines outlined by the County’s represents the regulatory benefit of educate the public and landowners Biological Mitigation Ordinance, which critical habitat. The addition of this about the location of, and efforts to uses a process that: regulatory benefit will, in many conserve, essential M viminea habitat. (1) Requires avoidance to the instances, lead to different results and As discussed above, the permit holders maximum extent feasible, give rise to different regulatory of the City and County Subarea Plans (2) Allows for a maximum 20 percent requirements that will then apply to the are aware of the value of these lands to encroachment into a population if total proposed project. Thus, critical habitat the conservation of M. viminea, and avoidance is not feasible, and designations may provide greater conservation measures are already in

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place to protect essential M. viminea provided for under the City and County include M. viminea and other federally and its habitat. Subarea plans. listed plant species. Furthermore, essential habitat covered Based on the above discussion, we We developed close partnerships with by the City and County Subarea plans believe section 7 consultations for the City and County of San Diego and was included in the proposed critical habitat designation conducted several other stakeholders through the designation published in the Federal under the standards required by the development of the City and County Register on June 9, 2011 (76 FR 33880). Ninth Circuit Court in the Gifford Subarea Plans, which voluntarily This publication was announced in a Pinchot Task Force v. U.S. Fish and incorporate appropriate protections and press release and information was Wildlife Service decision would provide management for Monardella viminea, its posted on the Service’s Web site, which little conservation benefit and would be habitat, and the physical or biological ensured that the proposal reached a largely redundant with those benefits features essential to the conservation of wide audience. Therefore, the already provided by the City and this species. Those protections are educational benefits of critical habitat County Subarea Plans. Therefore, we consistent with statutory mandates designation (such as providing determine the regulatory benefits of under section 7 of the Act to avoid information to the City and other designating those acres as Monardella destruction or adverse modification of stakeholders on areas important to the viminea critical habitat, such as critical habitat. Furthermore, these long-term conservation of this species) protection afforded through the section plans go beyond that requirement by have already been realized through 7(a)(2) consultation process, are including active management and development and ongoing minimal. We also conclude that the protection of essential habitat areas. By implementation of the City and County educational and ancillary benefits of excluding the approximately 177 ac Subarea plans, by proposing these areas designating essential habitat covered by (72 ha) of land within the boundaries of as critical habitat, and through the the City and County Subarea plans the City of San Diego Subarea Plan and Service’s public outreach efforts. would be negligible because the location 32 ac (13 ha) within the County of San Diego Subarea Plan from critical habitat Critical habitat designation can also of essential habitat for this species designation, we are eliminating a result in ancillary conservation benefits within the City and County and the redundant layer of regulatory review for to Monardella viminea by triggering importance of conserving such habitat is projects covered by the City and County well known through development and additional review and conservation Subarea Plans and encouraging new implementation of the Subarea plans through other Federal and State laws. voluntary partnerships with other and the independent regulatory The primary State laws that might be landowners and jurisdictions to protect protection already provided under affected by critical habitat designation M. viminea and other listed plant CEQA, CESA, and the City and County are CEQA and CESA. However, essential species. As discussed above, the Subarea plans. habitat within the City and County has prospect of potentially avoiding a future been identified in the Subarea plans and Benefits of Exclusion—City of San Diego designation of critical habitat provides a is either already protected or targeted Subarea Plan and the County of San meaningful incentive to plan for protection under the plans. Thus Diego Subarea Plan Under the San proponents to extend voluntary review of development proposals Diego MSCP protections to endangered and affecting essential habitat under CEQA threatened plants and their habitat by the City and County already takes The benefits of excluding from under a conservation plan. Achieving into account the importance of this designated critical habitat the comprehensive, landscape-level habitat to the species and the approximately 177 ac (72 ha) of land protection for plant species, particularly protections required for the species and within the boundaries of the City of San narrow endemic plant species such as its habitat under the Subarea plans. Diego Subarea Plan and 32 ac (13 ha) of M. viminea, through their inclusion in Similarly, because M. viminea is a State- land within the County of San Diego regional conservation plans, provides a listed endangered species under CESA, Subarea Plan are significant. The key conservation benefit for such and CDFG is a signatory to the MSCP benefits of excluding essential habitat species. Our ongoing partnerships with and City and County Subarea plans covered by these plans include: (1) the City and County, the larger regional under the NCCP Act, the designation of Continuance and strengthening of our MSCP participants, and the landscape- critical habitat within the City and effective working relationships with all level multiple species conservation County would not result in additional MSCP jurisdictions and stakeholders to planning efforts they promote, are conservation for the species and its promote the voluntary conservation of essential to achieve long-term habitat than currently exists under State Monardella viminea and its habitat; (2) conservation of M. viminea. law. The Federal law most likely to allowance for continued meaningful As noted earlier, some HCP afford protection to designated M. collaboration and cooperation in permittees have expressed the view that viminea habitat is the Clean Water Act working toward recovering this species, designation of lands covered by an HCP (CWA). Projects requiring a permit including conservation benefits that devalues the conservation efforts of plan under the CWA, such as a fill permit might not otherwise occur; (3) proponents and the partnerships under section 404 of the CWA, and that encouragement of other jurisdictions fostered through the development and are located within critical habitat or are with completed subarea plans under the implementation of the plans and would likely to affect critical habitat would MSCP to amend their plans to cover and discourage development of additional trigger section 7 consultation under the benefit M. viminea and its habitat; (4) HCPs and other conservation plans in Act. However, as discussed above, we encouragement of other jurisdictions to the future. Where an existing HCP conclude the potential regulatory complete subarea plans under the MSCP provides for protection for a species and benefits resulting from designation of (including the cities of Poway and its essential habitat within the plan area, critical habitat would be negligible Santee) that cover or are adjacent to M. particularly with regard to a listed plant because the outcome of a future section viminea habitat; and (5) encouragement species, or where the existence of a 7 consultation would not result in of additional HCP and other Federal nexus for future activities is greater conservation for essential M. conservation plan development in the uncertain, the benefits of preserving viminea habitat than currently is future on other private lands that existing partnerships by excluding the

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covered lands from critical habitat are County Subarea Plans and under State designation. Therefore, based on the most significant. Excluding lands and Federal law. In contrast to the above discussion, the Secretary is owned by or under the jurisdiction of minor benefits of inclusion, the benefits exercising his discretion to exclude 177 the permittees of an HCP, under these of excluding lands covered by the City ac (72 ha) of land within the boundaries circumstances, promotes positive and County Subarea Plans from critical of the City of San Diego Subarea Plan working relationships and eliminates habitat are significant. Exclusion of and 32 ac (13 ha) of land within the impacts to existing and future these lands from critical habitat will boundaries of the County of San Diego partnerships while encouraging help preserve the partnerships we Subarea Plan from this final critical development of additional HCPs for developed with local jurisdictions and habitat designation. other species. project proponents through the Summary of Comments and Large-scale HCPs, such as the regional development and ongoing Recommendations MSCP and subarea plans issued under implementation of the MSCP and the its framework, take many years to City and County Subarea Plans, and aid We requested written comments from develop and foster an ecosystem-based in fostering future partnerships for the the public, during two comment approach to habitat conservation benefit of listed species. Designation of periods, on: the proposed retention of planning, by addressing conservation lands covered by the City and County the listing status of Monardella viminea issues through a coordinated approach. Subarea Plans may discourage other as endangered; the proposed removal of If local jurisdictions were to require partners from seeking, amending, or protections afforded by the Act from landowners to obtain ITPs under section completing subarea plans under the those individual plants now recognized 10 of the Act individually prior to the MSCP framework plan or from pursuing as a separate species, M. stoneana; and issuance of a building permit, the local other HCPs that cover M. viminea and the proposed critical habitat for M. jurisdiction would incur no costs other listed plant species. Designation of viminea. The first comment period associated with the landowner’s need critical habitat does not require that associated with the publication of the for an ITP. However, this approach management or recovery actions take proposed rule (76 FR 33880) opened on would result in uncoordinated, place on the lands included in the June 9, 2011, and closed on August 8, ‘‘patchy’’ conservation that would be designation. The City and County 2011. We also requested comments on less likely to achieve listed species Subarea Plans, however, will provide the proposed critical habitat designation recovery and almost certainly would for significant conservation and and associated draft economic analysis result in less protection for listed plant management of Monardella viminea during a comment period that opened species, which do not require an ITP. habitat and help achieve recovery of this on September 28, 2011, and closed on We, therefore, want to continue to foster species through habitat enhancement October 28, 2011 (76 FR 59990). We did partnerships with local jurisdictions to and restoration, functional connections not receive any requests for a public encourage the development of regional to adjoining habitat, and species hearing. We also contacted appropriate HCPs that afford proactive, landscape- monitoring efforts. Additional HCPs or Federal, State, and local agencies; level conservation for multiple species, other species-habitat plans potentially scientific organizations; and other including voluntary protections for fostered by this exclusion would also interested parties and invited them to covered plant species. We believe the help to recover this and other federally comment on the proposed rule and draft exclusion from critical habitat of listed species. Therefore, in economic analysis during these covered lands subject to protection and consideration of the relevant impact to comment periods. management under such plans will current and future partnerships, as During the first comment period, we promote such partnerships and result in summarized in the Benefits of Exclusion received six comment letters directly greater protection for listed species, section above, we determined the addressing the actions described in the particularly plant species, than would significant benefits of exclusion proposed rule. During the second be achieved through section 7 outweigh the minor benefits of critical comment period, we received no consultation. habitat designation. comment letters addressing the actions described in the proposed rule or the The Benefits of Exclusion Outweigh the Exclusion Will Not Result in Extinction draft economic analysis. All substantive Benefits of Inclusion—City of San Diego of the Species—City of San Diego information provided during these Subarea Plan and the County of San Subarea Plan and the County of San comment periods has either been Diego Subarea Plan Under the San Diego Subarea Plan Under the San incorporated directly into this final Diego MSCP Diego MSCP determination or addressed below. We reviewed and evaluated the We determined that the exclusion of Comments we received were grouped exclusion of approximately 177 ac 177 ac (72 ha) of land within the into three general issue categories (72 ha) of land within the boundaries of boundaries of the City of San Diego specifically relating to: the proposed the City of San Diego Subarea Plan and Subarea Plan and 32 ac (13 ha) of land retention of the listing status of 32 ac (13 ha) within the County of San within the boundaries of the County of Monardella viminea as endangered; the Diego Subarea Plan from our revised San Diego Subarea Plan from the proposed removal of protections designation of critical habitat, and we designation of critical habitat for afforded by the Act from those determined the benefits of excluding Monardella viminea will not result in individuals now recognized as a these lands outweigh the benefits of extinction of the species. The jeopardy separate species, M. stoneana; and the including them. The benefits of standard of section 7 of the Act and proposed critical habitat for M. viminea. including these lands in the designation routine implementation of conservation These are addressed in the following are small because the regulatory, measures through the section 7 process summary and incorporated into the final educational, and ancillary benefits that due to M. viminea occupancy and rule as appropriate. would result from critical habitat protection provided by the City and designation are almost entirely County Subarea Plans provide Peer Review redundant with the regulatory, assurances that this species will not go In accordance with our peer review educational, and ancillary benefits extinct as a result of excluding these policy published on July 1, 1994 (59 FR already afforded through the City and lands from the critical habitat 34270), we solicited expert opinions

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from three knowledgeable individuals factor analysis and in the description of (5) Comment: The peer reviewer with scientific expertise that included the PCE. requested more information on the familiarity with the species, the Our Response: In the description of statement that ‘‘all canyon areas on the geographic region in which the species physical or biological features for the base are protected from development.’’ occurs, and conservation biology proposed rule and this final rule, we Three comment letters addressed the principles. We received a response from included a description of the same sentence, noting that it was in one of the peer reviewers. importance of a natural hydrological error. We reviewed all comments received regime in creating habitat and removing Our Response: We acknowledge that from the peer reviewer for substantive nonnative vegetation (see the Physical our phrasing did not accurately convey issues and new information regarding or Biological Features section above). the state of protections afforded by the the actions described in this proposed Additionally, we include the dual role INRMP. We have clarified the text rule. While the peer reviewer supported of scouring floods in the PCE (see the within the Factor D analysis for the determinations made by the rule, the Primary Constituent Elements for Monardella viminea with language from reviewer requested clarification on Monardella viminea section above). the updated INRMP that better explains critical habitat designation and threats Further, in the Factor A analysis for land management within canyons on to Monardella viminea and M. stoneana. both species, we stated that MCAS Miramar. The Level 1 or Level II The peer reviewer also provided ‘‘Monardella viminea requires a natural management areas where almost all M. suggestions on additional information hydrological system to maintain the viminea occurrences are found provide and analysis to add to the rule. Peer secondary benches and streambeds on measures to maintain and enhance reviewer comments are addressed in the which it grows (Scheid 1985, pp. 30–31, habitat for sensitive species, such as M. following summary and incorporated 34–35). Additionally, areas where viminea, while maintaining maximum into the final rule as appropriate. altered hydrology caused decreased compatible use for operational flows may experience an increase in requirements. Management measures Peer Reviewer Comments invasion by nonnative species into creek include minimizing the effects of Comments About Monardella viminea beds, which can smother seedling and planned actions on endangered species, mature plants, and prevent natural posting signs identifying sensitive (1) Comment: The peer reviewer was growth of M. viminea (Rebman and habitats, and avoiding threats such as supportive of the proposed rule. The Dossey 2006, p. 12). We believe this trampling. reviewer stated that the proposed adequately covers the dual role of flood (6) Comment: The peer reviewer designation of critical habitat is regime in M. viminea and M. stoneana asked if protections in the canyons on important to the conservation of habitat. MCAS Miramar extended upstream and Monardella viminea, and that the (4) Comment: The peer reviewer would thus protect the plant from Service had presented a thorough recommended addressing any efforts to altered hydrology. review of scientific literature related to discover previously unknown Our Response: As discussed under the taxonomic split of M. linoides ssp. Monardella viminea occurrences and an Factor A for Monardella viminea, all viminea. evaluation of the likelihood that other riparian areas on the base fall within Our Response: We appreciate the peer unknown occurrences may exist. Level I or Level II management areas. reviewer’s comment. Our Response: Researchers at MCAS Furthermore, the INRMP requires all (2) Comment: The peer reviewer Miramar regularly survey all suitable construction in riparian areas to contain recommended that we provide further habitat on the base for Monardella measures for impact avoidance, discussions of hydrological regime in viminea. The Service is also aware of minimization, and compensation, watersheds where Monardella viminea recent surveys conducted within including measures to reduce is found, and its influence on habitat previously unsurveyed side channels of stormwater runoff and erosion (Gene dynamics for the species. Spring Canyon. New M. viminea plants Stout and Associates et al. 2011, Tables Our Response: We have updated the were found during this survey (Friends 6.2.2.2a and 6.2.2.2b). Therefore, the Factor A analysis to include information of Los Pen˜ asquitos Canyon Preserve, protections do extend upstream and on changing watershed conditions in Inc. 2011, p. 11). Surveys have been provide measures to counter altered the range of Monardella viminea. conducted by species experts across the hydrology that could impact M. However, we were only able to find current range of the species, but have viminea. information on the Los Pen˜ asquitos not confirmed any new occurrences, (7) Comment: The peer reviewer watershed, containing Lopez and Carroll although a few unsurveyed canyons recommended adding a discussion of Canyons, and only information current outside the currently occupied range of threats to Monardella viminea and its to the year 2000. We invite anyone with the species do remain (Burrascano 2011, habitat due to habitat fragmentation and additional or more recent detailed pers. comm.; Kelly 2011, pers. comm.). edge effects. Specifically, the information on hydrological regimes Otherwise, most yearly monitoring commenter recommended discussing: relating to M. viminea to submit it to our focuses on known occurrences. Barriers to seed or pollen dispersal; Carlsbad Fish and Wildlife Office (see The species is distinctive in trampling; introduction of nonnative the FOR FURTHER INFORMATION CONTACT appearance and not easily confused species; runoff from pesticides, section above). with other plants when in bloom; herbicides, and fertilizers; and other (3) Comment: The peer reviewer however, during the fall, the plant dies results of human land use. noted the dual role of scouring floods back and could be overlooked, Our Response: During the first open within drainages containing Monardella particularly within areas with high comment period, we received additional viminea; floods have the potential to nonnative plant density. Therefore, we information on trampling and weed destroy sandbars hosting M. viminea consider the discovery of previously introductions, and we have added it to occurrences, but also can create new unknown Monardella viminea the rule (see the Factor E analyses for habitat and remove nonnative occurrences to be possible, but we have both species). vegetation. The reviewer recommends no further survey information than what In regard to edge effects, we do not discussing this aspect of the is presented here, which is the best consider edge effects in and of hydrological regime both in the five- available scientific information. themselves as a threat, but rather as a

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portion of fragmented habitat where known habitat characteristics of the California. Further, an analysis found threats are more likely to occur. One species. With regard to the peer that significant differences in fire consequence of edge effects, an reviewer’s request for a discussion of frequency exist immediately across the increased presence of nonnative species, traits that would allow M. stoneana to border (Keeley and Fotheringham 2001, is discussed in both the Factor A and persist, despite its small population p. 1540 and Figure 1b). Therefore, we Factor E analyses for Monardella size, we note that one important trait believe that the discussion of differing viminea. With regard to habitat that likely allows M. stoneana to persist fire frequency is both warranted and fragmentation, we have added a is its demonstrated ability to resprout necessary. discussion of threats due to habitat after fire (City of San Diego 2011a, p. (10) Comment: The peer reviewer fragmentation to the Factor A analysis 229; Miller 2011, pers. comm.). While recommended a more detailed for M. viminea. the best available scientific and discussion of the possible effects of U.S. With regard to runoff from pesticides, commercial information does not Border Patrol and illegal immigrant herbicides, and fertilizers, we have not provide further details on how M. activities in areas occupied by reviewed any information that shows stoneana might be well adapted to small Monardella stoneana, such as changing impacts from those factors on population size, we reiterate that M. economic conditions that could cause Monardella viminea or M. stoneana. We stoneana has not undergone a the border fence to fall into disrepair. have listed runoff as an action that may documented recent decline. The best The peer reviewer also requested a require section 7 consultation in the available scientific information discussion of any programs the Service Application of the ‘‘Adverse indicates that this species has persisted is aware of to monitor those potentially Modification’’ Standard section in our as a narrow endemic, and that it will changing conditions and their specific inclusion of activities that could continue to do so in the future. Recent effects on occurrences of M. stoneana. ‘‘significantly alter biotic features to a genetic analysis has shown that M. Our Response: We appreciate the peer degree that appreciably reduces the stoneana has comparable genetic reviewer’s critical review. We have value of the critical habitat for both the diversity to other rare perennial plant added an expanded discussion of the long-term survival or the recovery of the species, which provides evidence that effects of U.S. Border Patrol and illegal species.’’ These activities may include this species has not undergone a recent immigrant activities to the Factor A and large-scale application of herbicides, genetic bottleneck (Prince 2009, p. 20). Factor E discussions for Monardella release of chemicals or other toxic With regard to the request for a stoneana above, and we added substances, or activities that increase discussion of small population size, we information submitted by public the possibility of accidental sewage do not consider rarity, in and of itself, commenters (see comments 40 and 41 outflows.’’ However, the best available to be a threat. However, we below). However, we do not have scientific information does not currently acknowledge that small population size adequate information to make a demonstrate that runoff is, or has can exacerbate existing threats to a determination on how changing previously been, a threat impacting species. As discussed in the five-factor economic conditions might affect the either of the two species. analysis for Monardella stoneana, we status of the border fence. It is worth concluded that stressors do not impact noting that construction of the border Comments About Monardella stoneana the species to the extent that they pose fence occurred during times of poor (8) Comment: The peer reviewer and a threat to the current status of the economic conditions in the United three commenters requested a further species. See our response to comment States, so economic circumstances may clarification to the discussion of small 36 below for further discussion of small not be a reliable basis upon which to population size as it relates to population size and the consequences of judge public or political interest in Monardella stoneana, including the split of M. linoides ssp. viminea into border protection or the likelihood the demographic and genetic consequences two entities. border fence will fall into disrepair. of reducing small populations into Further, we note that Monardella With regard to the peer reviewer’s smaller, increasingly isolated stoneana shows little evidence of query about border monitoring, of the populations. Two commenters further fragmenting into smaller, more isolated four land managers who own land noted that a population the size of M. populations. We acknowledge that one where Monardella stoneana occurs stoneana would be vulnerable to occurrence has undergone a decline (BLM, the State of California, the stochastic risks. Additionally, the peer (CNDDB 2011b, EO 4); however, we County of San Diego, and the City of reviewer thought the current discussion have no other data demonstrating a San Diego), the only regular monitoring on small population size would be decrease in population size, and one we are aware of is conducted by the City stronger if it included an expanded occurrence previously thought to be of San Diego at their two occurrences discussion of M. stoneana’s habitat and extirpated has resprouted after fire (EOs 1 and 4). Temporary monitoring demographic stability, and provided (Miller 2011, pers. comm.). occurred during the construction of the more specific statements on which traits (9) Comment: The peer reviewer border fence, with surveys conducted may allow it to persist despite its small stated that a discussion of differing fire before construction for rare species, population size. regimes between the Mexico and U.S. including Monardella stoneana (e2M Our Response: In regard to the peer populations of Monardella stoneana is 2008, p. 1; e2M 2009, p. 1). We reviewer’s request to further discuss unnecessary given that all known encourage all agencies and members of habitat and demographic stability, we occurrences are found directly across the public to submit any information on reiterate that very limited information the border. changing conditions along the border exists on habitat preferences for Our Response: We respectfully and the consequent impact on M. Monardella stoneana. We believe that disagree with the peer reviewer’s stoneana to our office (see the FOR our current analysis of known habitat comment. While it is true that all known FURTHER INFORMATION CONTACT section characteristics of M. stoneana and occurrences of Monardella stoneana above). information presented in the proposed occur within sight of the Mexican (11) Comment: The peer reviewer rule (76 FR 33880, June 9, 2011) border, we believe that there may be recommended discussing any potential represent an analysis of the best other unknown occurrences of M. changes for MSCP treatment of available scientific information and all stoneana farther south in Baja Monardella stoneana given the removal

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of protections under the Act. First, how population sizes or been rare, yet despite those protections, M. viminea it would affect the continued protection continues to survive, is likely well occurrences on MCAS Miramar have of the species itself if M. stoneana were equipped to continue to exist into the still declined. All three comment letters no longer included in the listed entity, future’’ to be too general and suggested that designation of critical and whether it would retain its status as recommended deleting it. Additionally, habitat on the base could result in a narrow endemic. Second, the reviewer the peer reviewer found that the improved management for M. viminea, recommended discussing impacts on statement ‘‘though small population size and that the INRMP is inadequate to lands specifically set aside for M. may pose a threat to M. stoneana, it is protect the species. The peer reviewer linoides ssp. viminea that are now alone not enough to cause the extinction further requested a legal analysis of the determined to be occupied by plants of the species within the foreseeable possibility of designating critical habitat identified as M. stoneana, and whether future’’ seemed primarily directed at the on the base, and whether such they could potentially be available for Act’s criterion for listing as endangered, designation could indeed result in future development or other land use and that we may wish to re-evaluate the increased management. changes. threat of small population size in terms Our Response: The National Defense Our Response: Currently, Monardella of threatened status, as defined in the Authorization Act for Fiscal Year 2004 stoneana is identified as a narrow Act. (Pub. L. 108–136) amended the Act to endemic species by the City of San Our Response: We appreciate the peer limit areas eligible for designation as Diego Subarea Plan under the MSCP reviewer’s critical review, and we have critical habitat. Specifically, section (McEachern et al. 2007, Appendix A). made the suggested changes and re- 4(a)(3)(B)(i) of the Act (16 U.S.C. The plan defines narrow endemic evaluation. 1533(a)(3)(B)(i)) now states: ‘‘The species as those with ‘‘very limited Secretary shall not designate as critical Comments About Critical Habitat geographic range’’ and states that habitat any lands or other geographical protections for narrow endemics will (13) Comment: The peer reviewer areas owned or controlled by the ‘‘require additional conservation recommended designating areas Department of Defense, or designated measures to assure their long-term upstream of Monardella viminea for its use, that are subject to an survival’’ beyond those afforded to occurrences in order to preserve natural integrated natural resources covered species not recognized as hydrological regimes. management plan [INRMP] prepared narrow endemics (City of San Diego Our Response: We agree that natural under section 101 of the Sikes Act (16 1997, p. 100). Identification of a species hydrological regimes are important to U.S.C. 670a), if the Secretary determines as a narrow endemic is based on the conservation of Monardella viminea. in writing that such plan provides a distribution, not on listing status; We made the decision not to designate benefit to the species for which critical therefore, we do not expect the removal upstream areas because there are no habitat is proposed for designation’’ (see of M. stoneana from the listed entity to data to suggest that a quantifiable Application of Section 4(a)(3) of the Act affect the protections afforded to it by measure of land upstream would be section above for further discussion). the MSCP as a narrow endemic. necessary to preserve the natural We determined the INRMP for MCAS With regard to the peer reviewer’s hydrological regime specific to the Miramar (Gene Stout and Associates et question about protections on lands set needs of M. viminea. No data exist to al. 2011) provides a benefit to aside for Monardella linoides ssp. accurately measure what impacts Monardella viminea; therefore, the Act viminea, 100 percent of habitat upstream would begin to affect this mandates we exempt this military base currently occupied by M. stoneana species downstream, nor do we know at from critical habitat designation (see within lands covered by the City of San what distance from the occurrences of Application of Section 4(a)(3) of the Act Diego Subarea Plan is within the MHPA essential habitat these activities begin to section above for further discussion). (Multi-Habitat Planning Area), and all 6 impact survival and recovery. We As to the commenters’ question as to ac (2 ha) on land covered by the County believe the areas we have designated as whether designation of critical habitat of San Diego MSCP subarea plan is critical habitat in this final rule are on the base would improve within the PAMA. All areas identified sufficient for the conservation of M. management, we note that critical for conservation in the MHPA and viminea. habitat does not create a requirement for PAMA were determined based on a Critical habitat creates a Federal management or monitoring. The combination of factors, including nexus; thus, under section 7(a)(2) of the primary benefit of a critical habitat conservation of covered species. No Act, agencies must ensure that any designation is that it creates a Federal lands were identified and specifically action is not likely to jeopardize the nexus through which Federal agencies set aside for one particular species, continued existence of any endangered consult with the Service under section including Monardella linoides ssp. species or result in the destruction or 7(a)(2) of the Act. A Federal nexus viminea. Lands on which the species adverse modification of its critical already exists on military-owned lands, occurs today will remain unavailable for habitat. As factors supporting a natural and the military consults with us on all future development regardless of the hydrological regime are included in the actions that could impact listed species. listing status of any species that occurs physical or biological factors necessary Therefore, critical habitat designation within their boundaries. Furthermore, for the conservation of the species, on military-owned lands would not M. stoneana habitat within the County agencies must consult on any action that improve management of Monardella of San Diego will also be conserved as could impact or adversely modify viminea. part of the Otay Ranch Preserve. critical habitat. The critical habitat Therefore, we do not anticipate that M. boundaries we are finalizing in this rule Comments From Federal Agencies stoneana or the lands on which it are based upon the best available (15) Comment: A representative from occurs will lose any protection as a scientific information. MCAS Miramar stated that the proposed result of the split of the species. (14) Comment: The peer reviewer and revised critical habitat and taxonomic (12) Comment: The peer reviewer two public commenters acknowledged change is a well-written overview both found the June 9, 2011, proposed rule’s the benefits that MCAS Miramar has of the known information acquired for statement ‘‘a species like Monardella provided to Monardella viminea. Monardella viminea and of the critical stoneana that has always had small However, they also pointed out that, habitat regulatory requirement.

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Our Response: We appreciate the 1995). The second most common habitat expect that climate change may cause an commenter’s feedback. type, chaparral, makes up only 14 increased frequency of drought, we do (16) Comment: The commenter percent of M. viminea habitat, with not have enough information to requested more information on the southern mixed chaparral and non- accurately forecast its effects. geographical location of extirpated vegetated channel at 12 percent. We appreciate the information occurrences in Sycamore Canyon, San Therefore, we judged that, for the submitted by the commenter, and invite Clemente Canyon, and ‘‘Miramar NAS.’’ purposes of the five-factor analysis, anyone with detailed information on the The commenter stated that MCAS coastal sage scrub was the best impact of drought on Monardella Miramar currently has occurrences representative of habitats supporting M. viminea to submit it to our Carlsbad within all the canyon drainages except viminea. Fish and Wildlife Office (see Murphy Canyon, and asked us to clarify We agree with the commenter that a ADDRESSES). if the extirpated occurrences in the natural hydrological regime is crucial to (20) Comment: The commenter proposed rule’s Table 1 were inside or the survival and recovery of the species. suggested analyzing the Clean Water Act outside the border of MCAS Miramar. We identify a natural hydrological in Factor D to assess any protections it Our Response: Regarding the regime as one of the physical or may provide to Monardella viminea and occurrence named ‘‘Miramar NAS’’ in biological features essential to the M. stoneana. the CNDDB, the presence of plants there conservation of Monardella viminea, Our Response: We have added an was never confirmed, as discussed in and an altered hydrological regime as a assessment of the protections afforded the New Information on Occurrences of threat to M. viminea (see the Summary by the Clean Water Act to the Factor D Monardella viminea and Monardella of Factor A section for M. viminea analyses for both species. stoneana section above. The CNDDB above). Therefore, we do not believe (21) Comment: The commenter noted gives its location as ‘‘Miramar Naval Air that we have put undue emphasis on that, in the proposed rule, we had Station, west of bend in I–15, 0.3 km coastal sage scrub as habitat for M. highlighted ‘‘frequent’’ fire as occurring northwest of Benchmark 462’’ (CNDDB viminea. on MCAS Miramar in the Summary of 2011a, EO 31). As recent surveys have (18) Comment: The commenter Factor D for Monardella viminea. The not found any plants in that location, requested clarification of the statement commenter disagreed that fires have we consider the occurrence to be in the proposed rule that ‘‘two occurred frequently within M. viminea extirpated. As for the occurrences in occurrences at MCAS Miramar have habitat within the boundaries of MCAS San Clemente Canyon, all extirpated been partially destroyed by road Miramar and requested that we remove occurrences are west of the boundary of construction since the time of listing.’’ that wording. MCAS Miramar. Regarding the The commenter stated that no impacts commenter’s assertion that the proposed to Monardella viminea from road Our Response: The phrase that the rule’s Table 1 listed an occurrence in construction have occurred on MCAS commenter refers to was not meant to Sycamore Canyon as extirpated, there is Miramar. imply that uncontrolled fire was no such occurrence listed in the table. Our Response: Upon further review, common on MCAS Miramar. Rather, we All occurrences in Sycamore Canyon are we agree that the statement was were attempting to make a distinction currently extant. incorrect, and we have removed it from between habitat-based changes due to (17) Comment: The commenter was this final rule. fire and threats to individual plants. In concerned that we had placed too much (19) Comment: The commenter stated order to avoid confusion, we have emphasis on the role of coastal sage that drought has been one of the most revised the phrase ‘‘frequent fire’’ to scrub for Monardella viminea habitat, significant factors impacting Monardella ‘‘increased fire frequency from historical when many different habitat types viminea occurrences on MCAS conditions.’’ support the species. The commenter Miramar, and that drought has resulted (22) Comment: The commenter further noted that hydrology and soil in the loss of plants in Murphy Canyon, pointed out that the updated INRMP texture appear to be the most important poor success of seedlings, and difficulty will be available from 2011 to 2015, not constituent elements for the species, of M. viminea in competing for 2014 as stated, and that it is awaiting and that so much focus on habitat could resources. The commenter stated that agency letters to complete the process, be misleading. drought should be more heavily not publication processes. Our Response: We agree that evaluated as a threat to M. viminea. Our Response: We appreciate the Monardella viminea is not limited to Our Response: We have evaluated the commenter’s critical review. Since the coastal sage scrub habitats, and that it best information available on the publication of the proposed rule and the can prosper in a wide variety of impacts of drought on Monardella closing of the first comment period, the habitats. In our Criteria Used To Identify viminea, which we present in the Factor new INRMP was signed. We have Critical Habitat section above, we noted E discussion for M. viminea. The impact updated this final rule with information that mapped polygons of coastal sage of drought on riparian vegetation in from the new INRMP. scrub were relatively large and did not general is well documented, including (23) Comment: The commenter correspond well with the drainage areas increased invasion of more drought- reported that MCAS Miramar would where M. viminea and its PCE were tolerant nonnative species, decreased soon complete a 3-year study addressing likely to occur. We believe this indicates health of native riparian vegetation, and habitat factors that promote the survival that coastal sage scrub habitat is a poor decreased seedling survival (McBride of seedling and juvenile Monardella predictor for areas that contain the and Strahan 1984, p. 243; Stromberg viminea, and stated that they would physical or biological features essential 2001, p. 18; Gitlin et al. 2006, p. 1479). send this study to us when it is to the conservation of M. viminea. However, we were unable to find completed. However, despite the fact that coastal additional specific information relating Our Response: We appreciate the sage scrub may be a poor predictor for to the potential effects of drought additional information. Our office where Monardella viminea occurs, our specific to M. viminea apart from what received the study during the second vegetation mapping showed that 45 we presented in the proposed rule. open comment period. We have updated percent of M. viminea habitat occurs Further, as we discuss in the Factor E this rule with the information submitted within coastal sage scrub (SANDAG analysis for M. viminea, although we in the new report (see the Summary of

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Changes from Proposed Rule section clear guide to measure impacts to habitat and ensuring that all projects above). habitat supporting M. viminea. conform to MSCP requirements. (24) Comment: The commenter found As to the commenter’s question Our Response: We value our our criteria for drawing critical habitat regarding upslope habitat, we note that partnership with the City of San Diego boundaries was ‘‘the most accurate although the basis for critical habitat and appreciate their efforts to protect delineation identification method was vegetation, we wanted to include Monardella viminea. With regard to the offered to date.’’ However, the habitat for all necessary physical or commenter’s assertion that lands owned commenter also worried that the strict biological features, including habitat or under the jurisdiction of the City of delineation of 490 ft (150 m) may miss that supports pollinators. Although we San Diego Subarea Plan under the some essential habitat and include non- lack data to provide a quantifiable MSCP should be excluded because the essential habitat elsewhere, that it may estimate of how much habitat is needed HCP provides adequate protection for include too much upland habitat in by the diverse species suspected to the species, the adequacy of an HCP to narrower canyons, and that it ‘‘leaves pollinate Monardella viminea, we protect a species and its essential out drainages without trees.’’ The believe that including the projected habitat is one consideration taken into commenter recommends that we stream width will support pollinators account in our evaluation under section examine each drainage individually, necessary for M. viminea. 4(b)(2) of the Act. Exclusion of an area and worries that otherwise landowners As to the commenter’s concern that from critical habitat is based on our may regard the 490 ft (150 m) as a this number might become a ‘‘magic determination that the benefits of ‘‘magic habitat area tool.’’ habitat area tool,’’ we do not believe that exclusion outweigh the benefits of Our Response: We appreciate the this will be the case. We believe this inclusion, and that exclusion of an area commenter’s feedback. In reference to rule contains adequate explanation and will not result in extinction of a species, the commenter’s assertion that critical documentation of our methodology so which is a more complex analysis habitat ‘‘leaves our drainages without that land managers will understand how process. We have examined the trees,’’ we believe the commenter may we reached our habitat delineation protections afforded to M. viminea by have misunderstood our methodology. methods. the City of San Diego Subarea Plan In drawing our critical habitat under the MSCP during our exclusion Therefore, we believe that our critical boundaries, we applied the 490-ft (150- analysis in this critical habitat habitat lines are based on the best m) guideline to all watersheds, even designation, and have determined that available scientific information, provide those that contained no southern the benefits of excluding areas owned a clear and understandable boundary for sycamore-alder riparian woodland. by or under the jurisdiction of the City projects, and provide for the Southern sycamore-alder riparian of San Diego Subarea Plan under the conservation of Monardella viminea. woodland, and riparian woodland in MSCP outweigh the benefits of general, are very rare in canyons (25) Comment: The commenter was including these areas, including containing Monardella viminea. concerned about listing fire retardant or fostering our ongoing conservation However, as described in the Criteria herbicide application as an activity that partnership with the City of San Diego. Used to Identify Critical Habitat section could require section 7 consultation. (27) Comment: The County of San above, we found that where southern The commenter has found no negative Diego requested an exclusion from sycamore-alder riparian woodland co- effects on Monardella viminea following critical habitat, given that the Sycamore occurred with Monardella viminea, the fire retardant use. Additionally, spot Canyon Preserve adequately supports two occupied nearly identical portions herbicide application is frequently used and manages Monardella viminea in of the canyons. This was the case even for weed control on M. viminea with accordance with the MSCP, and that the though, as mentioned above, the habitat great success. lands will be designated in perpetuity. type is quite rare in canyons containing Our Response: We appreciate the Our Response: We value our Monardella viminea. Therefore, this commenter’s insights. Indeed, we partnership with the County of San habitat width appeared to be an accurate submit documents for public comment Diego and appreciate their efforts to predictor for areas containing the in large part to solicit such pertinent protect Monardella viminea. With physical or biological features necessary information as provided by the regard to the commenter’s assertion that for the conservation of M. viminea. commenter. The section of text to which lands owned or under the jurisdiction of In regard to drainage width, although the commenter refers was meant to the County of San Diego under the we agree with the commenter that relate to widespread general herbicide MSCP should be excluded because the individually based drainage assessments use upstream of Monardella viminea HCP provides adequate protection for have the potential to very accurately occurrences. However, we acknowledge the species, the adequacy of an HCP to capture the PCE for Monardella that the language could be confusing, protect a species and its essential viminea, the literature on the species and have revised this rule to clarify this habitat is one consideration taken into does not present any information on issue. We have also highlighted the use account in our evaluation under section topography necessary for the of spot application of herbicides within 4(b)(2) of the Act. Exclusion of an area conservation of the species. We lack the the Special Management Considerations from critical habitat is based on our GIS data on which to base individual or Protection section. determination that the benefits of evaluation at each site. We are unable to exclusion outweigh the benefits of Comments From Local Agencies visit every site ourselves for individual inclusion, and that exclusion of an area evaluation, particularly as some areas (26) Comment: The City of San Diego will not result in extinction of a species, contain private land that we do not have requested an exclusion from critical which is a more complex analysis permission to access (for example, habitat. They stated that their annual process. We have examined the Spring Canyon). Further, critical habitat monitoring reports demonstrate that the protections afforded to M. viminea by lines must be unambiguous and the MSCP is functioning properly and that the County of San Diego Subarea Plan methods clearly defined for later it provides appropriate protection for under the MSCP during our exclusion evaluation of project effects and Monardella viminea. They also stated analysis in this critical habitat consultations, and we believe this that the City would continue to designation, and have determined that habitat delineation method provides a implement the MSCP by acquiring the benefits of excluding areas owned

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by or under the jurisdiction of the mission to provide a safe and reliable species, and Comment 37 below for a County of San Diego under the MSCP water source. further analysis of our treatment of outweigh the benefits of including these potential threats impacting each species. Public Comments areas, including fostering our Comments Regarding Monardella continuing conservation partnership During the first comment period, we viminea with the County of San Diego. received two public comments (28) Comment: One commenter stated submitted by species experts on (31) Comment: One commenter that the proposed rule’s Figure 1, which Monardella viminea and M. stoneana. disagreed with our assessment that shows the geographic location of Overall, both commenters climate change is not threatening Monardella viminea and M. stoneana, recommended endangered status and Monardella viminea or M. stoneana. was not included in the proposed rule. designation of critical habitat for M. The commenter stated that although the The commenter requested that the figure stoneana. Both commenters also current reason for the decline of the two be included in the final rule. supported the recognition by the Service species is unknown, impacts associated Our Response: Figure 1 was published of the taxonomic split of M. linoides ssp. with climate change would cause a on page 33885 of the proposed rule (76 viminea. We have organized the future increase of altered hydrology and FR 33880, June 9, 2011). It is included comments into four sections: those increasing fire risk. The commenter then in this final rule as well. However, we regarding the taxonomic split, those requested an explanation of declining have altered the figure for clarity and regarding M. viminea, those regarding occurrences in drainages without ease of distinguishing the range of the M. stoneana, and those pertaining to the development (for example, MCAS two species. critical habitat designation for M. Miramar) if climate change is not (29) Comment: The SDCWA viminea. occurring. expressed concern that the designation Our Response: While we recognize Comments Regarding the Taxonomic of critical habitat might interfere with that climate change is an important Split of Monardella linoides ssp. maintenance of existing facilities and issue with potential effects to listed viminea construction of new facilities that species and their habitats, we lack enable the delivery of water to San (30) Comment: Two commenters adequate information to make accurate Diego County. SDCWA requested that referenced previous listing rules and projections regarding its effects to ‘‘provisions should be made in the candidate assessments where previously Monardella viminea or M. stoneana at designation to address existing activities listed entities were split: the spotted this time. and operations of the Water Authority to frog (Rana pretiosa), the flatwoods We acknowledge that the decline of fulfill the mission to provide a safe and salamander (Ambystoma cingulatum), Monardella viminea in undeveloped reliable water source.’’ Specifically, the and the Uinta Basin hookless cactus drainages is not well understood. commenter requested exclusions or (Sclerocactus glaucus). In each case, all However, as we stated in the textual exemptions to address existing species were given the same status as Cumulative Impacts section above, activities and operations of the SDCWA. the original listed entity as threatened, based on our review of the best available Our Response: Sections 4(b)(2) and its were uplisted to endangered status, or scientific information, we believe that in implementing regulations (50 CFR both recognized as candidate species. the case of M. viminea there is strong 424.12) govern exclusions under the One commenter argued that, based on evidence that the synergistic effects of Act. The Secretary may exclude an these precedents, the Service did not increased fire frequency, megafire, and area—not activities—from critical appear to be consistent in its treatment invasive grasses are causing the decline habitat if he determines that the benefits of split taxon. of the species, including on MCAS of such exclusion outweigh the benefits Our Response: We respectfully Miramar. We believe that section of specifying such area as part of the disagree that a decision not to list summarizes the best available scientific critical habitat (see Exclusions section Monardella stoneana is inconsistent information, and that the threats above). We do not exclude or exempt with previous rules. In our evaluation of strongly support the continued listing of specific activities from critical habitat the stressors impacting M. viminea and M. viminea as endangered. designation. Furthermore, SDCWA has M. stoneana, we conducted a thorough With regard to Monardella stoneana, prepared a Subregional Natural review of all available scientific and we do not believe that the best available Community Conservation Plan/Habitat commercial data. Section 4(b)(1)(A) of scientific information shows a decline Conservation Plan (NCCP/HCP; Plan) in the Act requires us to make listing in species numbers across all or a support of an application for an decisions for each species based solely significant portion of the range. Again, incidental take permit pursuant to on the best scientific and commercial we do not have adequate information to section 10(a)(1)(B) of the Act. We data available, and not on previous determine the potential future impacts completed an intra-Service formal actions taken by the Service. We believe of climate change on M. stoneana. section 7 consultation for issuance of a our consistency comes from constantly Further discussion of this issue can be section 10(a)(1)(B) incidental take upholding this standard as our method found in the Factor E discussion of M. permit under the Act for the Plan. In our for determining listing status. stoneana. ‘‘Conference Opinion’’ for the section In the case of Monardella viminea, we (32) Comment: Two commenters 10(a)(1)(B) permit, we determined that determined that listing as endangered provided new information related to the activities proposed by the SDCWA was warranted, because we found that Monardella viminea. One commenter in their NCCP/HCP will not result in the threats were likely to cause the species submitted unpublished data from a destruction or adverse modification of to become extinct in the foreseeable recent survey for M. viminea in Spring proposed critical habitat for Monardella future. In contrast, we did not find that Canyon and provided information about viminea (Service 2011, pp. 284–286). M. stoneana is currently endangered, additional threats to the species there, The NCCP/HCP was signed on and we did not find that it is likely to including trampling and off-road December 20, 2011. Therefore, the become endangered in the foreseeable vehicle use. Another commenter designation should not impede the future. Please see our Summary of provided insight on lack of recruitment existing activities, operations, or the Factors sections above for further details of M. viminea, and stated that seed ability of the SDCWA to fulfill the on the potential threats impacting each germination has appeared to be good for

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the species, but that seed head basis, rather than managing for 30 above, we make decisions on listing predation was occurring across the individual plants. status based solely on the best scientific range of M. viminea. Our Response: We agree with the and commercial information available at Our Response: We appreciate commenter’s assertion, and have the time. This listing is based on threats receiving these results. We have updated the Special Management applicable to an individual species, and incorporated the survey reports into our Considerations and Protection section of not made in comparison to other listed database and added the information on this rule to reflect this idea. species. Therefore, the population size threats to our five-factor analysis for Comments Regarding Monardella of other listed species is not relevant to Monardella viminea. stoneana the consideration of listing status for M. (33) Comment: One commenter viminea or M. stoneana. believed that a pollination study for (36) Comment: Two commenters (37) Comment: One commenter stated Monardella viminea had been noted that it seems illogical to delist a that the analysis of threats for conducted by MCAS Miramar and portion of the original listed entity Monardella viminea and M. stoneana recommended that we request it. when Monardella linoides ssp. viminea was not consistent. For example, the Our Response: We contacted MCAS was originally listed in part due to small commenter stated that altered hydrology Miramar to inquire about the existence population size, and when the 2008 also exists in the habitat for M. of such a report. A biologist at MCAS 5-Year Review stated that, ‘‘In stoneana, caused by border security, Miramar reported that, although data particular, small population size makes road construction, higher local rainfall related to pollinators has been gathered it difficult for this subspecies to persist upslope, and excessive runoff following throughout the years, no such study has while sustaining the impacts of fire, burns. The commenter pointed out that, been completed (Kassebaum 2011a, flooding, and competition with invasive as M. stoneana occurs in connected pers. comm.). plants. Because M. linoides subsp. drainages, a strong rain event in one (34) Comment: One commenter viminea is found in small and declining watershed could impact many requested a discussion of lack of populations, immediate action to occurrences downstream. Additionally, seedling recruitment, as very few conserve the subspecies may be the commenter stated that nonnative seedlings are seen in the species’ range inadequate as the extinction threshold plants are an equally strong threat to M. and the reasons behind low seedling (vortex) for the subspecies may already stoneana, especially due to type establishment are not well understood. have been reached.’’ conversion after frequent fire (Factor A). The commenter requested that we One commenter further noted that The commenter also added that they evaluate this as a threat, stating that, plants with both more occurrences and believe that trampling is not a threat to ‘‘The ability to reproduce in an more individual plants are protected or the species. ephemeral drainage subject to rapid federally endangered, and that it Our Response: We appreciate the water flow seems to be a critical factor therefore does not make sense that commenter’s insights and the given that this species occurs in braided Monardella stoneana does not warrant information on the effects of trampling channels.’’ such protections. on Monardella stoneana. However, we Our Response: We agree that a strong Our Response: As discussed in the respectfully disagree with the understanding of factors influencing Factor E analyses for both species, rarity commenter that we were inconsistent in seedling establishment could be a is not in itself a threat, although we our treatment of threats for the two crucial factor in the recovery of acknowledge that small population size species. We used the best available Monardella viminea and the continued can exacerbate other potential threats to scientific information, including persistence of M. stoneana. Based on a species. Further, as discussed in the published peer-reviewed papers, survey information in the report submitted by Determination section for Monardella reports, GIS data, and correspondence MCAS Miramar during the second open stoneana, the best available scientific with species experts and land managers, comment period, we added details information does not allow us to to study the differences in the habitat about seedling recruitment to the five- conclude that fire, flooding, or invasive and conditions of the two species. From factor analysis. However, upon review plants are impacting M. stoneana and its that review, we found differing habitat of the report, we concluded that there habitat to the extent that the species is conditions, regulatory mechanisms, was not enough information on seedling endangered now, or likely to become so urbanization, and fire history that recruitment to discuss it as distinct from in the foreseeable future. Therefore, the impact the two species, all of which we other effects, although we discussed the factors mentioned by the commenter used to analyze the way that threats influence that other factors (such as that were believed at the time of the impact the two species. nonnative grasses) could have on M. 5-year review to be exacerbating the In reference to our different viminea or M. stoneana. small population size of M. linoides ssp. determinations for altered hydrological We further acknowledge that viminea are not present in the range of regimes for the two species, we again seedlings are very rare in Monardella what is now M. stoneana. Further, in highlight the different surrounding viminea. As discussed in the Summary regard to the quoted text about the conditions for Monardella viminea and of Changes from Proposed Rule section ‘‘extinction vortex,’’ new information M. stoneana. Several M. viminea above, we received a study on seedling reviewed since the publication of that occurrences are found in areas that have establishment from MCAS Miramar document has shown that this effect been heavily urbanized for many years. during the second open comment period may not be applicable to M. stoneana. Monardella stoneana is found almost and have added information from that Specifically, although information exists entirely in wilderness areas or other report to this final rule. on the possible effect of a declining public lands protected from (35) Comment: One commenter noted spiral in population size on animals, no development. We acknowledge that at that lack of recruitment in drainages such empirical evidence exists for plant the time the proposed rule was may be due to nonnative plants taking species (Matthies et al. 2004, p. 482). published we did not have any up suitable habitat where seedlings With regard to the issue of other listed information on impacts to hydrology might otherwise grow. The commenter species that have more occurrences and from activities due to Border Patrol and further recommends managing more individuals than Monardella road construction. Based on the nonnative species on a habitat-wide stoneana, as we discussed in comment information submitted by the

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commenters, we have added an analysis occurrences of Monardella stoneana, implemented under the revised plan, of impacts to hydrology as pertaining to fire management is provided not only by when final, will be designed to promote M. stoneana. However, as discussed in CAL FIRE, but further protection of conservation of M. stoneana and its the summary for Factor A, we do not natural resources on Federal and State habitat. believe that impacts to hydrology lands is provided by management Furthermore, it is worth noting that stemming from occasional road conducted consistent with the CAL FIRE only has jurisdiction over 2 construction and maintenance impact Wilderness Act. Furthermore, the first percent of lands containing Monardella M. stoneana’s habitat to the extent that step to preventing damage to homes and viminea. The remainder of the area is it currently endangers the species or natural resources is suppression. It is managed by MCAS Miramar’s fire could cause the plant to become not clear whether more could be done division or by local fire agencies. endangered within the foreseeable to protect natural resources once a Therefore, fire history impacting M. future. While road construction within wildfire becomes large, and the focus viminea does not provide a good the area of M. stoneana may have some must be on human health and safety comparison for how M. stoneana will be temporary impacts on seasonal once the ability to control a wildfire is managed by CAL FIRE in the future. streamflows, we have no information limited. (39) Comment: One commenter that suggests that these flows are Fire management activities occur on asserted that the current status of substantial enough to wash away the Otay Mountain (34 percent of all Monardella stoneana is not known, as rocky terraces that support M. stoneana. occurrences of Monardella stoneana) as only the City of San Diego has surveyed Further, the altered hydrology in M. part of the BLM’s current (1994) for the species on its smaller piece of stoneana habitat is nowhere near the SCRMP. Information provided by BLM the range (two plants) and that, despite extent of streamflow changes that have summarizes these ongoing management the existence of an HCP for these lands, resulted from permanent development actions: BLM Fire Management provides BLM, CDFG, and the Service have not and increased pavement cover that has an initial attack dispatch and agency monitored or managed their occurred in canyons surrounding M. representative to ensure appropriate populations. The commenter stated that viminea. While the connected nature of actions are taken on a fire incident; fire ‘‘the decline of the species from historic the canyons does indeed mean that prevention and law enforcement patrols levels and the current lack of streamflow in one canyon could impact occur on Otay Mountain; and, on large monitoring and management neglect occurrences found downstream, we do incidents, several resource specialists argue for designating this range as not find that the hydrology of the may form a team to evaluate fire and fire Critical Habitat. This designation is suppression effects (Howe 2010, pers. canyons has been altered to the point needed to raise the status of these lands comm.). If a determination is made to that such a flow event is likely to occur. and to provide leverage for actual With regard to nonnative plants pursue fire restoration and repair, these management.’’ One commenter further impacting Monardella stoneana, specialists work with Burned Area asked how type conversion of lands although we acknowledge that an Emergency Response (BAER) Teams to with repeated fire has been addressed invasion of nonnative plants could have implement appropriate actions. for habitat essential to M. stoneana. a detrimental influence on M. stoneana BLM is further collaborating with the and its habitat, we have been unable to Service to revise the SCRMP, which Our Response: We acknowledge find evidence that such an invasion covers the Otay Mountain Wilderness. throughout this final rule that exists, or will exist in the foreseeable In the current draft revised plan, monitoring data are lacking for most future. Further, as discussed in the Monardella stoneana is identified as a occurrences of Monardella stoneana. Factor A analysis, the chaparral federally listed species and is given However, under section 4(b) of the Act, vegetation that M. stoneana favors is conservation priority (BLM 2009, pp. 3– we are required to make determinations less vulnerable to type conversion 23, 3–54, 4–175). As of this final rule, based on the best available scientific following frequent fire than the M. stoneana will no longer be and commercial information. We invite vegetation types that support M. considered an endangered species. any individual or agency with recent viminea. Additionally, as discussed in However, the draft SCRMP also monitoring reports on occurrences of M. the same section, those occurrences of provides protection for BLM-identified stoneana to submit them to our Carlsbad M. stoneana that are currently sensitive species, which includes M. Fish and Wildlife Office (see the FOR monitored contain lower cover of stoneana (BLM 2009, p. 3–50; BLM FURTHER INFORMATION CONTACT section nonnative vegetation than do 2010, pp. 29–30). All special status above). occurrences of M. viminea. species are considered as a group for Furthermore, as we have determined (38) Comment: One commenter conservation measures (BLM 2010, p. that listing Monardella stoneana under asserted that CAL FIRE has, in the past, 50), and thus the change in the listing the Act as endangered or threatened is been unable to mitigate the impacts of status of M. stoneana status would not not warranted, critical habitat cannot be large fire on Monardella viminea, affect the protections afforded by the designated, and a discussion of the especially the decline of plants after the draft SCRMP. Moreover, one of BLM’s potential impact that a hypothetical 2003 Cedar Fire. Another commenter primary objectives in the draft revised critical habitat designation would have asked how type conversion of lands has plan is improved fire management and on BLM or CDFG-owned lands is, been addressed by current protections. collaboration with local communities therefore, not relevant. We also note that Another stated that CAL FIRE devotes and agencies to prevent wildfires. The the City of San Diego in fact monitors all its resources to protecting homes, not draft revised plan specifically includes two occurrences of M. stoneana. The plants, and that CAL FIRE is unlikely in a goal of restoring fire frequency to 50 first occurrence, Buschalaugh Cove (EO the future to alter the dynamics of fire years through fire prevention or 4) contains one individual plant (City of on Otay Mountain during Santa Ana suppression and prescribed burns. San Diego 2011a, p. 229). The second conditions. When an area has not burned for 50 occurrence, in Marron Valley, comprises Our Response: As discussed earlier in years, the plan allows for annual approximately 95 plants (City of San this rule, on land owned and managed prescribed burning of up to 500 ac (200 Diego 2010a, p. 238). No M. stoneana by CDFG and BLM, which contain ha) in the Otay Mountain Wilderness occurs on lands owned or managed by approximately 88 percent of all (BLM 2009, pp. 4–171—4–172). Actions the Service.

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(40) Comment: One commenter upstream from Monardella stoneana commenter agreed, and stated that fire asserted that, despite Monardella that has altered hydrology, and weeds frequency could cause increased stoneana’s protected status as a part of that have invaded upslope of M. alteration of hydrology due to increased the original listed entity, in recent years stoneana. One commenter stated that ‘‘it runoff from slopes that were Border Patrol and other activities on is only a matter of time before weeds devegetated by fire. The commenter BLM land trump any State, County, or become a more serious issue on Otay stated that a task force was created with Federal environmental regulations. The Mountain. Road repair work has to be local agencies to address the fire commenter stated that because of this conducted on a more regular basis. frequency changes as the numbers of situation, the City of San Diego MSCP Those factors could easily result in fires on the mountain had increased so is unable to adequately protect M. changes to the speed of water flow dramatically over historical levels. stoneana. The commenter then during peak rainfall periods creating an Our Response: We have not found any concluded that the HCP could not be impact to M. stoneana.’’ evidence, nor did the commenter considered an adequate regulation if its Both commenters reported impacts to provide any evidence, that nonnative protections were not fully implemented. EO 7 and EO 8 from construction of an plants are invading occurrences of Our Response: On April 3, 2008, the access road by the Department of Monardella stoneana to the degree that Secretary of Homeland Security Homeland Security. The commenters they would pose a threat to the species. published a determination in the further reported that the roads ‘‘were We are also not aware of any incidences Federal Register (73 FR 18294) and not revegetated’’ in 2010, despite the of increased streamflow following fire stated that, due to high amounts of fact that the area is a Wilderness Area. events. Although we agree that it is illegal immigrant traffic, he was creating The commenters reported that in the possible that such changes could occur, a waiver to allow the Department of winter after construction, the road and in our Determination section for M. Homeland Security to construct barriers fence were washed out and both had to stoneana above, we did not find that to stem the high flow of illegal be replaced. One commenter added that these factors were currently threatening, immigrant traffic. This waiver permitted the effects of the construction are not or likely to threaten, M. stoneana in the construction of the border fence without well known due to lack of monitoring future. need for consultation under the Act for Monardella stoneana. It is worth noting that EO 5 consisted under the authorization of section 102 Our Response: The commenters did of only one plant when it was thought (c) of the Illegal Immigration Reform not provide information on the to be extirpated by fire. Since the first and Immigrant Responsibility Act of hydrology prior to the occurrence, or open comment period, as discussed 1996 (Pub. L. 104–208). any data on altered terrain, to support above, this plant has now resprouted Before construction of the fence, the their statements or to allow us to from the root (City of San Diego 2011a, Border Patrol prepared an evaluate the extent of altered p. 229). environmental stewardship plan (ESP) streamflows that might have directly (43) Comment: The commenter to examine impacts of construction of impacted Monardella stoneana. While highlighted the decrease in occurrences the border fence to listed and rare we acknowledge that any erosion can in a protected area monitored by the species and sensitive habitats. Prior to impact streamflows, we do not believe City of San Diego. The commenter the start of the project, surveys were that construction of dirt roads can have stated that since monitoring began in conducted to determine the presence or the same level of impact on natural accordance with the HCP, EO 6 has absence of rare species, including hydrology that occurs in the range of M. dropped from 120 plants to 95 plants. Monardella stoneana (Department of viminea, where some occurrences are Our Response: We believe that in this Homeland Security et al. 2008, p. 8–5). surrounded by urbanized areas and high case the commenter is suggesting that No individuals were found during the density of pavement on all sides, all of the protections afforded by the MSCP surveys, but as these surveys took place which result in substantial alterations to are inadequate to conserve the species. in fall when the plant was dormant, hydrology. However, survey data are inconclusive subsequent surveys were undertaken Further, while we agree that a due in large part to changing monitoring during construction of the fence to landscape with increased nonnative methods. Monardella stoneana often determine presence or absence of M. cover could negatively impact grows in clumps of one to four stoneana (Department of Homeland Monardella stoneana, the best available individual plants. The number of plants Security et al. 2008, pp. 8–30, 8–34). scientific and commercial information within a clump cannot be reliably When plants were documented during does not show that such an increase in distinguished without exposing the the construction period, best cover is likely to occur in the future. We roots. In the first 3 years of surveys, management practices were invite anyone with information on those clumps of M. stoneana were counted, implemented to avoid and minimize occurrences or any changing cover of rather than individual plants. In 2003, impacts to M. stoneana (e2M 2008, p. 1; nonnative plants to submit this 113 plants were reported, then 192 in e2M 2009, p. 1). information to our Carlsbad Fish and 2004, and 103 plants in 2010 (City of Therefore, despite the waiver that Wildlife Office (see the FOR FURTHER San Diego 2010b, p. 2). Given the mandated that border fence activities INFORMATION CONTACT above). difficulty of determining individual could carry on without environmental (42) Comment: The commenter plants from clumps of M. stoneana, we oversight, we have no available asserted that Monardella stoneana has believe these counts are due to differing information suggesting that this project experienced increased fire frequency methods rather than population threatened the continued existence of due to nonnative plant invasion, which fluctuations. The City of San Diego Monardella stoneana. The San Diego has resulted in weed invasion, habitat acknowledged this in their 2006 survey MSCP continues to be adequately conversion, increased sheet runoff of report for Marron Valley, saying that ‘‘It implemented and carried out. rainfall, and erosion. The commenter should be noted that implementation of (41) Comment: Two commenters further stated that fire was credited with the current monitoring method may stated that Otay Mountain has having wiped out the occurrence at have been inconsistent from season to undergone recent habitat degradation Buschalaugh Cove (CNDDB EO5) and season. Monitoring of this species is due to increased roads and trails, Border caused the location at Otay Lakes to be being analyzed and methods may be Patrol activities, road construction reduced by 87 percent. Another revised in order to provide more reliable

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data’’ (City of San Diego 2006, p. 67). It species, these areas indeed do not meet habitat, we first identified areas is worth noting that in all subsequent the definition of critical habitat. We currently occupied and occupied at the reports the number of plants has held believe the areas identified as essential time of listing. We acknowledge that steady at 95 clumps (City of San Diego are sufficient for recovery of the taxon. Cemetery Canyon was occupied by 2010b, p. 2). Therefore, the best In response to the commenter’s Monardella viminea at the time of available scientific information does not assertion that we used ‘‘circular logic’’ listing. However, we respectfully allow us to conclude that this in our determination of critical habitat, disagree with the commenter that occurrence has declined in size since we note that section 3(5)(A) of the Act Cemetery Canyon still contains the monitoring began. defines critical habitat, in part, as those physical and biological features (44) Comment: One commenter asked areas with physical or biological necessary for the conservation of the how lighting associated with a fencing features that are essential to the species. As discussed in our response to project constructed by the Border Patrol ‘‘conservation’’ of the species. comment 45 above, we found that had impacted the insects needed to Regulations at 50 CFR 424.02 define Cemetery Canyon lacks a natural pollinate Monardella stoneana. conservation as ‘‘the use of all methods hydrological regime (all components of Our Response: Surveys conducted and procedures that are necessary to the PCE), and therefore does not meet prior to the construction of the border bring any endangered or threatened the definition of critical habitat (see the fence found no known occurrences of species to the point at which the Criteria Used to Identify Critical Habitat Monardella stoneana within the impact measures provided pursuant to the Act section above for more details). corridor of the project, although known are no longer necessary.’’ With the (47) Comment: Two commenters occurrences are located in proximity to language in the Act and its supporting stated that the proposed rule argues that the construction sites (Department of regulations focusing on conservation INRMPs and HCPs afford equal Homeland Security et al. 2008, p. 8–30). rather than survival, we are bound to protection to critical habitat, and the Therefore, we do not believe that identify those areas with the physical or commenters disagree with that idea. lighting associated with the biological features necessary to achieve Our Response: The City of San Diego construction of the border fence would species conservation. We also note that and County of San Diego Subarea Plans have affected pollinators. As for future features needed for conservation are not under the MSCP provide ongoing impacts, even though road maintenance necessarily the same as those needed for protection and monitoring for is ongoing, road construction typically survival. Therefore, it is not Monardella viminea that will benefit the does not occur during night hours (Ford contradictory that Monardella viminea long-term conservation of the species. 2011, pers. comm.) clumps can occur in areas without the These protections extend to private lands that otherwise lack a Federal Critical Habitat for Monardella viminea physical and biological features identified in this rule. nexus under which consultation could (45) Comment: Two commenters We recognize that critical habitat be triggered. The INRMP for MCAS believed that Lopez, Carroll, and designated at a particular point in time Miramar further provides for Cemetery Canyons should be designated may not include all of the habitat areas management and research into the life as critical habitat. One commenter that we may later determine are history and threats impacting M. further stated that ‘‘Circular logic seems necessary for the recovery of the viminea. Both plans provide monitoring to being [sic] used to state that those two species. For this reason, a critical and management of conserved lands canyons that are supporting plants habitat designation does not signal that important to the survival and recovery cannot support the species due to habitat outside the designated area is of M. viminea. These conservation changed hydrology’’ and that ‘‘we do unimportant or may not be required for measures provided by the INRMP and agree that the hydrology of both systems recovery of the species. We also note the HCPs are typically not addressed has changed but there are still plenty of that, in addition to protections afforded through a critical habitat designation, lands within the braided system that by the MSCP, occupied habitat outside that is, through application of the could support plants if they did not the final revised critical habitat statutory prohibition on destruction or support such a large weed load.’’ designation will continue to be subject adverse modification of critical habitat. Our Response: We respectfully to conservation actions implemented Therefore, we find that in this case the disagree with the commenters’ assertion under section 7(a)(1) of the Act, INRMP and the HCPs provide clear that areas within Carroll and Lopez regulatory protections afforded by the benefits to M. viminea. Canyons meet the definition of critical section 7(a)(2) jeopardy standard, and (48) Comment: One commenter stated habitat. We do agree, however, with the the prohibitions of section 9 of the Act. that it was difficult to understand commenter’s assertion that Lopez We also note that under section exclusions for the City of San Diego Canyon could support more plants if 4(a)(3)(A) of the Act and regulations at when management is not occurring, there were not such a high density of 50 CFR 424.12(g), we may revise critical threats from nonnative plants and nonnative species. However, as habitat designations as appropriate and altered hydrology are increasing, plant described in the Summary of Changes as new data become available. We numbers are declining, and lands in from Previously Designated Critical encourage all members of the public to Spring Canyon have not yet been Habitat section in the proposed rule (76 submit such information to our Carlsbad acquired. Another commenter argued FR 33880), our primary reason for not Fish and Wildlife Office (see the FOR that critical habitat designation is designating those areas was the lack of FURTHER INFORMATION CONTACT section needed to raise the status of these lands a natural hydrological regime (all above). and to provide leverage for actual components of the PCE), and not the (46) Comment: One commenter management. Both commenters asserted presence of nonnative species. Thus, the asserted that Cemetery Canyon should that exclusions should not be made for best available scientific information be designated as critical habitat, as it the City of San Diego until management does not lead us to conclude that these has the attributes that support begins and species numbers are two canyons are essential to the Monardella viminea and was occupied increasing, and one commenter added, conservation of Monardella viminea, at the time of listing. ‘‘the species is continuing to decline and, due to the lack of physical and Our Response: In identifying areas partially due to lack of management and biological features essential to the that meet the definition of critical that behavior should not be rewarded by

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granting exclusions due to purported minimal and are outweighed by the Additionally, the commenter benefits.’’ The commenters further benefits of excluding the habitat. provided no evidence regarding the asserted that designation of critical Therefore, we are excluding lands failure of the City of San Diego to habitat within City of San Diego MSCP within the plan areas of these HCPs acquire the parcel of private lands. We lands would greatly increase protections based on the benefits of maintaining our invite any individual or agency with for Monardella viminea, spur more conservation partnerships. information regarding conservation of active management and protection, and (49) Comment: One commenter Monardella viminea within the MSCP to prevent development of lands disagreed with our statement that submit it to our Carlsbad Fish and containing M. viminea. almost all occurrences in the City of San Wildlife Office (see the FOR FURTHER Our Response: We reiterate that Diego MSCP Subarea Plan have been INFORMATION CONTACT section above). conservation measures provided by the protected in MSCP reserves and are (51) Comment: One commenter stated INRMP and the HCPs are separate from annually monitored. The commenter that the Sycamore Estates occurrence of the prohibition on destruction or cited large populations of Spring Monardella viminea should be adverse modification provided by a Canyon that are neither monitored nor designated as critical habitat. critical habitat designation. Critical protected, and lands in Carroll Canyon Specifically, the commenter stated that habitat does not create a requirement for that are not monitored by the City development of this project was stopped management or monitoring. The (although the commenter acknowledged due to the economy and bankruptcy, primary benefit of a critical habitat that they are monitored by contractors), leaving the status of the project designation is that it creates a Federal transplants in Lopez Canyon that are not uncertain. In addition, the commenter nexus through which Federal agencies monitored, and Sycamore Canyon lands stated that the status of M. viminea on consult with the Service under section associated with Rancho Encantata that the planned open space was also 7(a)(2) of the Act. In other words, the are not monitored. uncertain. Finally, the commenter stated Federal agencies are required to not Our Response: We have updated this that management of the naturally fund, authorize, or carry out actions on rule with the information submitted by occurring plants and transplants were designated lands that adversely modify the commenter. put on hold. or destroy critical habitat. Our Response: See our response to (50) Comment: Two commenters We also note that exclusions are not comment 48 above. Sycamore Estates based on the difference between expressed concern about lands in Spring falls within the boundaries of the City protection measures provided by critical Canyon being purchased for of San Diego Subarea Plan under the habitat designation or HCPs in isolation, conservation, as outlined in the MSCP. MSCP and, thus, we have decided to but on how the redundancy of The commenter claims that the City of exclude it under section 4(b)(2) of the protections provided by an HCP with San Diego gave up the right to eminent Act (also see Exclusions section above). those provided by critical habitat domain in creating the MSCP, and (52) Comment: Two commenters designation minimizes the overall pointed out that lands designated for reported that they were unaware of any conservation value of designation, and possible open space acquisition under management or monitoring actions how the remaining benefits of the City’s MSCP retain 25 percent conducted by the County of San Diego, designation may be negated by the development rights. Finally, the whose lands host one population of 14 benefits of exclusion (maintaining commenter claimed that previous plants at the southern end of the partnerships and fostering future HCPs). attempts by the City to purchase the Sycamore Canyon Preserve Conservation benefits provided by Spring Canyon parcels have been (corresponding to the southern portion existing HCPs are not considered a unsuccessful. One commenter noted of EO 9). Based on their monitoring benefit of exclusion because they would that development would be on the least efforts, the commenters reported that remain in place regardless of critical sensitive parts of the acreage, but that the occurrence was subject to a high habitat designation; however, they do the development would still impact density of nonnative species. They minimize the benefits of inclusion to the Monardella viminea through altered further reported that this occurrence extent that they are redundant with hydrology. was down to one live plant and a protection measures that would be Our Response: We appreciate the number of dead standing Monardella provided by critical habitat designation. commenter’s concerns regarding viminea in 2007, and that no live plants We assume that the commenters mean adequate protection of Monardella were present in 2008. The commenters that designation of critical habitat viminea under the City of San Diego did not report the date of their most would pressure the City to increase Subarea Plan for the MSCP. In the recent survey on County lands, but management. Again, critical habitat biological opinion issued by the Service, stated that they considered this does not create a requirement for we concluded that the City’s Subarea occurrence to be extirpated. The management or monitoring, and there is Plan provides a benefit to M. viminea commenters stressed that existing no regulatory mechanism in place that because the plan provides for conservation measures on County lands would guarantee such measures. conservation of all major occurrences were inadequate to protect the species, Further, critical habitat does not create (Service 1997, p. 83), including all areas and that designation of lands would a preserve or a refuge. In fact, we have identified in this rule as increase the likelihood of management. designating critical habitat within the essential habitat as well as other Our Response: We appreciate the City’s HCP could have a detrimental occupied areas such as Lopez Canyon. information submitted by the effect on our conservation partnerships Development within M. viminea habitat commenters. Despite the decline of (see Exclusions section above). is restricted to a maximum of 20 percent plants on lands within the boundaries of Based on the conservation benefits of the habitat, and, should development the County of San Diego Subarea Plan, provided by the City of San Diego and occur, in-kind mitigation would be we have decided to exclude lands under County of San Diego Subarea Plans required at a 1:1 to 3:1 ratio, in addition the jurisdiction of the County of San under the MSCP, we believe the to the protections for riparian habitat, Diego Subarea Plan under the MSCP. As additional protection provided to which require no net loss of wetland discussed in Exclusions section, we Monardella viminea’s essential habitat acreage or function (Service 1997, p. found that exclusion of these lands from by critical habitat designation would be 83). critical habitat will help preserve the

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partnerships we developed with the Our Response: Critical habitat for the Secretary of the Interior determines, County and project proponents in the southwest Alaska DPS of the northern ‘‘that the failure to designate such area development of the MSCP. Conservation sea otter is almost entirely aquatic, as critical habitat will result in the plans such as the County of San Diego consisting of nearshore waters to the extinction of the species concerned.’’ Subarea Plan provide landscape-level mean high tide line. Therefore, this rule There is no regulation 50 CFR 40205, conservation that can better address did not, in fact, designate critical habitat but 50 CFR 402.05 sets forth regulations threats to Monardella viminea habitat, on military lands. Specifically, we state that concern expedited consultation in as opposed to the piecemeal in that rule that ‘‘there are no the event of emergency circumstances conservation approach that could result Department of Defense lands with a that mandate that need. Further, 50 CFR should private landowners complete complete INRMP within the critical 424.19 states that exclusion cannot individual section 7 consultations. habitat designation’’ (p. 52005, 74 FR occur if it will result in the extinction Comparison of regulatory benefits 51988, October 8, 2009). Additionally, of a species. provided by critical habitat to as stated in our response to comment Section 4(a)(3)(B)(i) of the Act conservation benefits provided by 30, section 4(b)(1)(A) of the Act requires describes exemptions from critical implementation of HCPs is not us to make determinations for each habitat applying to Department of straightforward. However, we point out species based solely on the best Defense land. The Secretary has that critical habitat does not create a scientific and commercial data determined that the INRMP for MCAS requirement for management or available, and not on previous actions Miramar provides a benefit to this monitoring, and that the County of San taken by the Service. We determined the species and that the lands it covers are Diego has recently completed a INRMP for MCAS Miramar (Gene Stout therefore exempt from critical habitat management plan for preserve lands and Associates et al. 2011) provides a designation. Sections 4(a)(3)(B)(ii) and supporting M. viminea that includes benefit to Monardella viminea, and, (iii) also note that agencies granted an removal of nonnative vegetation, habitat therefore, we have determined that exemption must still consult under restoration, and implementation of a lands on MCAS Miramar are exempt section 7(a)(2) of the Act, and that the managed fire regime with a priority of from critical habitat under section Department of Defense must comply protecting biological resources 4(a)(3)(B) of the Act. with section 9, ‘‘including the including M. viminea (DPR 2009, pp. (55) Comment: One commenter prohibition preventing extinction and referenced a proposed development on 71, 76–77). We believe that the County taking of endangered species and MCAS Miramar of a U.S. Army Reserve of San Diego Subarea Plan under the threatened species.’’ Thus, although Center upstream from a drainage with MSCP provides equivalent or superior military bases can be exempt from Monardella viminea. Although a benefits to M. viminea and its habitat critical habitat, the Act has mechanisms condition was placed on the project that than would result from critical habitat in place to prevent extinction. designation. it not change the hydrology, the commenter had little confidence that As discussed in our response to (53) Comment: The commenter listed could be achieved. comment 14 above, the reason for the multiple incidences where MCAS Our Response: Previous projects decline of Monardella viminea on Miramar had previously turned over upstream from Monardella viminea MCAS Miramar is poorly understood. land to other agencies or private occurrences have not impacted M. However, despite that lack of landowners, thus losing protected viminea individuals or habitat. Surveys knowledge, we believe that MCAS habitat for the species and degrading reported no negative effects after the Miramar is providing conservation drainages and vernal pool habitat for 2007 construction of a rifle range in measures and protections that are other listed species. One parcel close proximity to M. viminea in San working to prevent extinction of M. proposed for sale, the Stowe Trail, Clemente Canyon (Tierra Data 2011, p. viminea. would connect lands occupied by 3). As described in the Factor D analysis Required Determinations Monardella viminea to the Sycamore for M. viminea above, the INRMP for Canyon Preserve. The commenter MCAS Miramar provides conservation Regulatory Planning and Review— believes critical habitat should be measures for all riparian areas on the Executive Order 12866 designated in the area to protect it from base. Therefore, the Service has future development. The Office of Management and Budget confidence that conservation measures (OMB) has determined that this rule is Our Response: The most recent will continue to be put in place as information we have received from not significant and has not reviewed demonstrated by previous occasions. this rule under Executive Order 12866. MCAS Miramar indicates that the (56) Comment: One commenter stated OMB bases its determination upon the station currently has no intent of selling that exemption cannot occur if it will following four criteria: or transferring the property (Kassebaum result in the extinction of the species. 2011b, pers. comm.). Therefore, it The commenter noted the large (1) Whether the rule will have an appears that the land will remain under percentage of the population on MCAS annual effect of $100 million or more on the ownership of MCAS Miramar and Miramar, and the recent decline of the the economy or adversely affect an the conservation of the INRMP, and that species on the base, and noted that the economic sector, productivity, jobs, the critical habitat designation is not Act provides a mechanism for dealing environment, or other units of the appropriate. with emergencies that would require government. (54) Comment: The commenter noted expedited consultation ‘‘under 50 CFR (2) Whether the rule will create that critical habitat has previously been 40205 [sic].’’ inconsistencies with other Federal designated for military lands, Our Response: The regulation and the agencies’ actions. specifically for the critical habitat language within the Act that the (3) Whether the rule will materially designation for the southwest Alaska commenter refers to is the process of affect entitlements, grants, user fees, distinct population segment (DPS) of the determining exclusions from critical loan programs or the rights and northern sea otter (Enhydra lutris habitat, not exemptions. The commenter obligations of their recipients. kenyoni), which published October 8, is correct in that section 4(b)(2) states (4) Whether the rule raises novel legal 2009 (74 FR 51988). that exclusions cannot be granted if the or policy issues.

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Regulatory Flexibility Act (5 U.S.C. 601 particular types of economic activities In summary, we considered whether et seq.) (e.g., transportation and construction). this designation will result in a Under the Regulatory Flexibility Act We apply the ‘‘substantial number’’ test significant economic effect on a (RFA; 5 U.S.C. 601 et seq.), as amended individually to each industry to substantial number of small entities. by the Small Business Regulatory determine if certification is appropriate. Based on the above reasoning and Enforcement Fairness Act (SBREFA) of However, the SBREFA does not currently available information, we 1996 (5 U.S.C 801 et seq.), whenever an explicitly define ‘‘substantial number’’ conclude that this rule will not result in agency must publish a notice of or ‘‘significant economic impact.’’ a significant economic impact on a rulemaking for any proposed or final Consequently, to assess whether a substantial number of small entities. rule, it must prepare and make available ‘‘substantial number’’ of small entities is Therefore, we certify that the for public comment a regulatory affected by this designation, this designation of critical habitat for Monardella viminea will not have a flexibility analysis that describes the analysis considers the relative number significant economic impact on a effects of the rule on small entities of small entities likely to be impacted in substantial number of small entities, (small businesses, small organizations, an area. In some circumstances, and a regulatory flexibility analysis is and small government jurisdictions). especially with critical habitat not required. However, no regulatory flexibility designations of limited extent, we may analysis is required if the head of an aggregate across all industries and Small Business Regulatory Enforcement agency certifies the rule will not have a consider whether the total number of Fairness Act (5 U.S.C 801 et seq.) small entities affected is substantial. In significant economic impact on a Under SBREFA, this rule is not a substantial number of small entities. estimating the number of small entities potentially affected, we also consider major rule. Our detailed assessment of The SBREFA amended the RFA to the economic effects of this designation require Federal agencies to provide a whether their activities have any Federal involvement. is described in the final economic certification statement of the factual analysis. Based on the effects identified Designation of critical habitat only basis for certifying that the rule will not in the economic analysis, we believe affects activities authorized, funded, or have a significant economic impact on that this rule will not have an annual carried out by Federal agencies. Some a substantial number of small entities. effect on the economy of $100 million kinds of activities are unlikely to have In this final rule, we certify that the or more, will not cause a major increase any Federal involvement and so will not critical habitat designation for in costs or prices for consumers, and be affected by critical habitat Monardella viminea will not have a will not have significant adverse effects designation. In areas where the species significant economic impact on a on competition, employment, substantial number of small entities. is present, Federal agencies already are investment, productivity, innovation, or The following discussion explains our required to consult with us under the ability of U.S.-based enterprises to rationale. section 7 of the Act on activities they compete with foreign-based enterprises. According to the Small Business authorize, fund, or carry out that may Refer to the final economic analysis for Administration, small entities include affect Monardella viminea. Federal a discussion of the effects of this small organizations, such as agencies also must consult with us if determination. independent nonprofit organizations; their activities may affect critical small governmental jurisdictions, habitat. Designation of critical habitat, Energy Supply, Distribution, or Use— including school boards and city and therefore, could result in an additional Executive Order 13211 town governments that serve fewer than economic impact on small entities due Executive Order 13211 (Actions 50,000 residents; as well as small to the requirement to reinitiate Concerning Regulations That businesses. Small businesses include consultation for ongoing Federal Significantly Affect Energy Supply, manufacturing and mining concerns activities (see Application of the Distribution, or Use) requires agencies with fewer than 500 employees, ‘‘Adverse Modification’’ Standard to prepare Statements of Energy Effects wholesale trade entities with fewer than section). when undertaking certain actions. OMB 100 employees, retail and service In our final economic analysis of the has provided guidance for businesses with less than $5 million in critical habitat designation, we implementing this Executive Order that annual sales, general and heavy evaluated the potential economic effects outlines nine outcomes that may construction businesses with less than on small business entities resulting from constitute ‘‘a significant adverse effect’’ $27.5 million in annual business, conservation actions related to the when compared to not taking the special trade contractors doing less than listing of Monardella viminea and the regulatory action under consideration. $11.5 million in annual business, and designation of critical habitat. The The economic analysis finds that agricultural businesses with annual analysis is based on the estimated none of these criteria are relevant to this sales less than $750,000. To determine impacts associated with the rulemaking analysis and that no modifications to if potential economic impacts on these as described in Chapters 3 through 5 future economic activities are small entities are significant, we and Appendix A of the analysis and anticipated to result from the consider the types of activities that evaluates the potential for economic designation of critical habitat. Thus, might trigger regulatory impacts under impacts related to transportation and based on information in the economic this rule, as well as the types of project construction. analysis, energy-related impacts modifications that may result. In The final economic analysis for associated with Monardella viminea general, the term ‘‘significant economic Monardella viminea found that there are conservation activities within critical impact’’ is meant to apply to a typical no businesses operating within critical habitat are not expected. As such, the small business firm’s business habitat that meet the definition of small designation of critical habitat is not operations. entities (Industrial Economics Inc. 2012, expected to significantly affect energy To determine if the rule could p. A–2). Therefore, the final economic supplies, distribution, or use. Therefore, significantly affect a substantial number analysis found that no small entities this action is not a significant energy of small entities, we consider the will be affected by the designation of action, and no Statement of Energy number of small entities affected within critical habitat for M. viminea. Effects is required.

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Unfunded Mandates Reform Act (2 critical habitat rests squarely on the agencies during the two open comment U.S.C. 1501 et seq.) Federal agency. Furthermore, to the periods. The designation of critical In accordance with the Unfunded extent that non-Federal entities are habitat in areas currently occupied by Mandates Reform Act (2 U.S.C. 1501 et indirectly impacted because they Monardella viminea imposes no seq.), we make the following findings: receive Federal assistance or participate additional restrictions to those currently (1) This rule will not produce a in a voluntary Federal aid program, the in place and, therefore, has little Federal mandate. In general, a Federal Unfunded Mandates Reform Act would incremental impact on State and local mandate is a provision in legislation, not apply, nor would critical habitat governments and their activities. The statute, or regulation that would impose shift the costs of the large entitlement designation may have some benefit to an enforceable duty upon State, local, or programs listed above onto State these governments in that the areas that tribal governments, or the private sector, governments. contain the physical or biological and includes both ‘‘Federal (2) We do not believe that this rule features essential to the conservation of will significantly or uniquely affect intergovernmental mandates’’ and the species are more clearly defined, small governments because it will not ‘‘Federal private sector mandates.’’ and the elements of the features of the produce a federal mandate of $100 These terms are defined in 2 U.S.C. habitat necessary to the conservation of million or greater in any year; that is, it 658(5)–(7). ‘‘Federal intergovernmental the species are specifically identified. is not a ‘‘significant regulatory action’’ mandate’’ includes a regulation that This information does not alter where under the Unfunded Mandates Reform ‘‘would impose an enforceable duty and what federally sponsored activities Act. Further, the lands we are upon State, local, or tribal governments’’ may occur. However, it may assist local designating as critical habitat are owned governments in long-range planning with two exceptions. It excludes ‘‘a by private individuals, Padre Dam (rather than having them wait for case- condition of Federal assistance.’’ It also Municipal Water District, the California by-case section 7 consultations to excludes ‘‘a duty arising from Department of Transportation. None of occur). participation in a voluntary Federal these fit the definition of ‘‘small Where State and local governments program,’’ unless the regulation ‘‘relates governmental jurisdiction.’’ Therefore, a require approval or authorization from a to a then-existing Federal program Small Government Agency Plan is not Federal agency for actions that may under which $500,000,000 or more is required. affect critical habitat, consultation provided annually to State, local, and under section 7(a)(2) will be required. Takings—Executive Order 12630 tribal governments under entitlement While non-Federal entities that receive authority,’’ if the provision would In accordance with Executive Order Federal funding, assistance, or permits, ‘‘increase the stringency of conditions of 12630 (Government Actions and or that otherwise require approval or assistance’’ or ‘‘place caps upon, or Interference with Constitutionally authorization from a Federal agency for otherwise decrease, the Federal Protected Private Property Rights), we an action, may be indirectly impacted Government’s responsibility to provide have analyzed the potential takings by the designation of critical habitat, the funding,’’ and the State, local, or tribal implications of designating critical legally binding duty to avoid governments ‘‘lack authority’’ to adjust habitat for Monardella viminea in a destruction or adverse modification of accordingly. At the time of enactment, takings implications assessment. As critical habitat rests squarely on the these entitlement programs were: discussed above, the designation of Federal agency. Medicaid; Aid to Families with critical habitat affects only Federal Dependent Children work programs; actions. Although private parties that Civil Justice Reform—Executive Order Child Nutrition; Food Stamps; Social receive Federal funding, assistance, or 12988 Services Block Grants; Vocational require approval or authorization from a In accordance with Executive Order Rehabilitation State Grants; Foster Care, Federal agency for an action may be 12988 (Civil Justice Reform), the Office Adoption Assistance, and Independent indirectly impacted by the designation of the Solicitor has determined that the Living; Family Support Welfare of critical habitat, the legally binding rule does not unduly burden the judicial Services; and Child Support duty to avoid destruction or adverse system and that it meets the applicable Enforcement. ‘‘Federal private sector modification of critical habitat rests standards set forth in sections 3(a) and mandate’’ includes a regulation that squarely on the Federal agency. The 3(b)(2) of the Order. We are designating ‘‘would impose an enforceable duty takings implications assessment critical habitat in accordance with the upon the private sector, except (i) a concludes that this designation of provisions of the Act. This final rule condition of Federal assistance or (ii) a critical habitat for M. viminea does not uses standard property descriptions and duty arising from participation in a pose significant takings implications for identifies the elements of physical or voluntary Federal program.’’ lands within or affected by the biological features essential to the The designation of critical habitat designation. conservation of Monardella viminea does not impose a legally binding duty within the designated areas to assist the Federalism—Executive Order 13132 on non-Federal Government entities or public in understanding the habitat private parties. Under the Act, the only In accordance with Executive Order needs of the species. regulatory effect is that Federal agencies 13132 (Federalism), this rule does not must ensure that their actions do not have significant Federalism effects. A Paperwork Reduction Act of 1995 (44 destroy or adversely modify critical federalism impact summary statement is U.S.C. 3501 et seq.) habitat under section 7. While non- not required. In keeping with This rule does not contain any new Federal entities that receive Federal Department of the Interior and collections of information that require funding, assistance, or permits, or that Department of Commerce policy, we approval by OMB under the Paperwork otherwise require approval or requested information from, and Reduction Act of 1995 (44 U.S.C. 3501 authorization from a Federal agency for coordinated development of, this et seq.). This rule will not impose an action, may be indirectly impacted critical habitat designation with recordkeeping or reporting requirements by the designation of critical habitat, the appropriate State resource agencies in on State or local governments, legally binding duty to avoid California. We did not receive any individuals, businesses, or destruction or adverse modification of comments from any State resource organizations. An agency may not

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conduct or sponsor, and a person is not the Interior’s manual at 512 DM 2, we Authors required to respond to, a collection of readily acknowledge our responsibility The primary authors of this information unless it displays a to communicate meaningfully with rulemaking are the staff members of the currently valid OMB control number. recognized Federal Tribes on a Carlsbad Fish and Wildlife Office. government-to-government basis. In National Environmental Policy Act (42 accordance with Secretarial Order 3206 List of Subjects in 50 CFR Part 17 U.S.C. 4321 et seq.) of June 5, 1997 (American Indian Tribal It is our position that, outside the Rights, Federal-Tribal Trust Endangered and threatened species, jurisdiction of the U.S. Court of Appeals Responsibilities, and the Endangered Exports, Imports, Reporting and for the Tenth Circuit, we do not need to Species Act), we readily acknowledge recordkeeping requirements, prepare environmental analyses our responsibilities to work directly Transportation. pursuant to the National Environmental with tribes in developing programs for Regulation Promulgation Policy Act (NEPA; 42 U.S.C. 4321 et healthy ecosystems, to acknowledge that seq.) in connection with designating tribal lands are not subject to the same Accordingly, we amend part 17, critical habitat under the Act. We controls as Federal public lands, to subchapter B of chapter I, title 50 of the published a notice outlining our reasons remain sensitive to Indian culture, and Code of Federal Regulations, as set forth for this determination in the Federal to make information available to tribes. below: Register on October 25, 1983 (48 FR We determined that there are no tribal PART 17—[AMENDED] 49244). This position was upheld by the lands occupied by Monardella viminea U.S. Court of Appeals for the Ninth at the time of listing that contain the ■ 1. The authority citation for part 17 Circuit (Douglas County v. Babbitt, 48 features essential for conservation of the continues to read as follows: F.3d 1495 (9th Cir. 1995), cert. denied species, and no tribal lands unoccupied 516 U.S. 1042 (1996)). by M. viminea that are essential for the Authority: 16 U.S.C. 1361–1407; 16 U.S.C. conservation of the species. Therefore, 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– Government-to-Government 625, 100 Stat. 3500; unless otherwise noted. we are not designating critical habitat Relationship With Tribes for M. viminea on tribal lands. ■ 2. Amend § 17.12(h) by revising the In accordance with the President’s entry for ‘‘Monardella linoides ssp. memorandum of April 29, 1994 References Cited viminea’’ under ‘‘FLOWERING (Government-to-Government Relations A complete list of all references cited PLANTS’’ in the List of Endangered and with Native American Tribal is available on the Internet at http:// Threatened Plants to read as follows: Governments; 59 FR 22951), Executive www.regulations.gov and upon request Order 13175 (Consultation and from the Carlsbad Fish and Wildlife § 17.12 Endangered and threatened plants. Coordination With Indian Tribal Office (see FOR FURTHER INFORMATION * * * * * Governments), and the Department of CONTACT). (h) * * *

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

FLOWERING PLANTS

******* Monardella viminea Willowy monardella U.S.A. (CA), Mexico Lamiaceae ...... E 649 17.96(a) NA

*******

■ 3. In § 17.96, amend paragraph (a) by (A) Water flows only after peak (iii) That contain ephemeral drainages revising the critical habitat entry for seasonal rainstorms; that: Monardella linoides ssp. viminea (B) High runoff events periodically (B) Are made up of coarse, rocky, or (willowy monardella) under Family scour riparian vegetation and sandy alluvium; and Lamiaceae to read as follows: redistribute alluvial material to create (C) Contain terraced floodplains, new stream channels, benches, and terraced secondary benches, stabilized § 17.96 Critical habitat—plants. sandbars; and sandbars, channel banks, or sandy (a) Flowering plants. (C) Water flows for usually less than washes; and * * * * * 48 hours after a rain event, without (iv) That have soil with high sand long-term standing water; content, typically characterized by Family Lamiaceae: Monardella sediment and cobble deposits, and (ii) With surrounding vegetation that viminea (willowy monardella) further characterized by a high content provides semi-open, foliar cover with: (1) Critical habitat units are depicted of coarse, sandy grains and low content for San Diego County, California, on the (A) Little or no herbaceous of silt and clay. map below. understory; (3) Critical habitat does not include (2) Within these areas, the primary (B) Little to no canopy cover; manmade structures (such as buildings, constituent element of the physical and (C) Open ground cover, less than half aqueducts, runways, roads, and other biological features essential to the of which is herbaceous vegetation cover; paved areas) and the land on which they conservation of Monardella viminea is (D) Some shrub cover; and are located existing within the legal riparian channels with ephemeral (E) An association of other plants, boundaries on the effective date of this drainages and adjacent floodplains: including Eriogonum fasciculatum rule. (i) With a natural hydrological regime, (California buckwheat) and Baccharis (4) Critical habitat map units. Data in which: sarothroides (broom baccharis); layers defining map units were created

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using a base of U.S. Geological Survey 501161,3640078; 501162,3640078; 500792,3639533; 500792,3639514; 7.5’ quadrangle maps. Critical habitat 501242,3640095; 501298,3640107; 500787,3639424; 500787,3639418; units were then mapped using Universal 501360,3640120; 501388,3640126; 500759,3639164; 500756,3639148; Transverse Mercator (UTM) zone 11, 501408,3640130; 501410,3640131; 500723,3639026; 500721,3639020; North American Datum (NAD) 1983 501407,3640359; 501447,3640402; 500719,3639013; 500716,3639007; coordinates. 501469,3640439; 501495,3640483; 500712,3639000; 500684,3638955; (5) Unit 1: Sycamore Canyon, and 501499,3640490; 501504,3640496; 500675,3638943; 500674,3638941; Unit 2, West Sycamore Canyon, San 501509,3640502; 501514,3640507; 500606,3638863; 500595,3638843; Diego County, California. 501521,3640512; 501527,3640517; 500583,3638783; 500581,3638776; (i) Unit 1 for Monardella viminea, 501549,3640531; 501556,3640539; 500578,3638769; 500576,3638762; Sycamore Canyon Unit, San Diego 501603,3640540; 501608,3640540; 500572,3638755; 500568,3638749; County, California. From USGS 1:24,000 501614,3640540; 501792,3640541; 500564,3638742; 500537,3638708; quadrangle San Vicente Reservoir, lands 501787,3640534; 501758,3640495; 500531,3638701; 500525,3638695; bounded by the following UTM NAD83 501737,3640451; 501734,3640444; 500518,3638689; 500511,3638684; coordinates (E,N): 501600,3640272; 501725,3640431; 501695,3640393; 500504,3638680; 500496,3638676; 501581,3640252; 501696,3640253; 501689,3640387; 501684,3640381; 500487,3638673; 500482,3638672; 501856,3640274; 501861,3640213; 501677,3640376; 501670,3640371; 500479,3638671; thence returning to 502006,3640245; 502010,3640246; 501655,3640361; 501614,3640291; 500470,3638670. 502330,3640316; 502335,3640312; 501604,3640277; thence returning to (ii) Unit 2 for Monardella viminea, 502342,3640307; 502348,3640300; 501600,3640272. Lands bounded by the West Sycamore Canyon Unit, San Diego 502354,3640294; 502359,3640287; following UTM NAD83 coordinates County, California. From USGS 1:24,000 502363,3640279; 502367,3640271; (E,N): 500470,3638670; quadrangles Poway and La Mesa, lands 502370,3640263; 502372,3640254; 500462,3638669; 500453,3638669; bounded by the following UTM NAD83 502373,3640246; 502374,3640237; 500444,3638670; 500436,3638671; coordinates (E,N): 499542,3637385; 502374,3640228; 502373,3640220; 500427,3638673; 500419,3638677; 499559,3637384; 499579,3637426; 502372,3640211; 502370,3640203; 500411,3638680; 500404,3638685; 499609,3637489; 499642,3637558; 502367,3640195; 502363,3640187; 500397,3638690; 500390,3638695; 499667,3637544; 499661,3637527; 502359,3640179; 502353,3640172; 500384,3638701; 500378,3638708; 499661,3637513; 499748,3637481; 502348,3640165; 502342,3640159; 500373,3638715; 500369,3638723; 499750,3637476; 499754,3637468; 502335,3640154; 502328,3640149; 500365,3638730; 500365,3638731; 499756,3637459; 499758,3637451; 502320,3640144; 502312,3640141; 500362,3638739; 500360,3638747; 499759,3637447; 499743,3637451; 502304,3640138; 502296,3640135; 500360,3638748; 500372,3638771; 499714,3637454; 499703,3637441; 502050,3640081; 502046,3640080; 500373,3638772; 500409,3638842; 499666,3637441; 499651,3637432; 502030,3640079; 501886,3640076; 500433,3638889; 500468,3638955; 499620,3637409; 499603,3637382; 501716,3640054; 501704,3640053; 500498,3639034; 500506,3639052; 499589,3637348; 499572,3637318; 501578,3640052; 501517,3640051; 500518,3639066; 500534,3639092; 499559,3637293; 499556,3637288; 501460,3640051; 501451,3640051; 500561,3639193; 500562,3639197; 499554,3637292; 499551,3637300; 501442,3640052; 501433,3640054; 500607,3639314; 500623,3639355; 499548,3637308; 499546,3637317; 501425,3640057; 501417,3640060; 500637,3639479; 500646,3639555; 499544,3637325; 499544,3637334; 501409,3640064; 501401,3640069; 500648,3639573; 500655,3639637; 499544,3637343; 499545,3637351; 501331,3640008; 501315,3639997; 500657,3639654; 500712,3639701; 499546,3637360; 499549,3637368; 501236,3639953; 501222,3639947; 500753,3639736; 500764,3639745; 499552,3637379; thence returning to 501215,3639945; 501144,3639925; 500871,3639837; 500896,3639859; 499542,3637385. 501134,3639922; 501123,3639921; 500881,3639827; 500858,3639781; (iii) NOTE: Map of Unit 1 and Unit 2, 500982,3639912; 500957,3639910; 500855,3639775; 500845,3639760; Sycamore Canyon and West Sycamore 500973,3639924; 501031,3639974; 500815,3639724; 500784,3639649; Canyon, follows: 501128,3640057; 501149,3640075; 500790,3639577; 500792,3639546; BILLING CODE 4310–55–P

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* * * * * Dated: February 8, 2012. Rachel Jacobson, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2012–3903 Filed 3–5–12; 8:45 am] BILLING CODE 4310–55–C

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