Rule: Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat&#8212 Nevin's Barberry

Wednesday,
February 13, 2008
Part II
Department of the
Interior
Fish and Wildlife Service
50 CFR Part 17
Endangered and Threatened Wildlife and
Plants; Designation of Critical Habitat for
Berberis nevinii (Nevin’s barberry); Final
Rule
pwalker on PROD1PC71 with RULES2
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8412 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations
DEPARTMENT OF THE INTERIOR Species Description and Reproduction germination rates, even without special
Berberis nevinii is a 3 to 13 foot (ft) treatment, are high (Mistretta and
Fish and Wildlife Service (1 to 4 meter (m)) tall rhizomatous, Brown 1989, p. 5). These life history
evergreen shrub in the barberry family features appear to match Keeley’s (1991,
50 CFR Part 17 (Berberidaceae) that is endemic to p. 107) description of the ‘‘non-
southern California. In both the refractory seed’’ (fire-resister) syndrome
[FWS–R8–ES–2008–0011; 92210–1117–
0000–B4] proposed critical habitat rule (72 FR (White 2007, p. 1). Shrubs with this life
5552; February 6, 2007) and the final history strategy have seeds that do not
RIN 1018–AU84 listing rule (63 FR 54956; October 13, require fire-associated cues for
1998) for the species, we reported germination and generally recruit into
Endangered and Threatened Wildlife chaparral in the absence of fire,
Berberis nevinii to be rhizomatous.
and Plants; Designation of Critical potentially requiring long fire-free
Some members of the genus Berberis
Habitat for Berberis nevinii (Nevin’s periods to do so (White 2007, p. 1). This
have underground stems (rhizomes) that
barberry) appears to contradict California
give rise to aerial shoots. Some species
have long slender-branched rhizomes Department of Fish and Game’s (CDFG)
AGENCY: Fish and Wildlife Service,
while others, including B. nevinii, have characterization of B. nevinii as a fire
Interior.
short stout-branched rhizomes. Because responsive species (CDFG 2005, p. 272).
ACTION: Final rule. The specific response of B. nevinii to
aerial stems commonly arise in this
changes in the natural fire regime (fire
SUMMARY: We, the U.S. Fish and manner, a single genetic individual may
frequency, intensity, or timing) may not
Wildlife Service (Service), are appear to be a dense or diffuse grouping
be fully understood (63 FR 54964,
designating critical habitat for Berberis of aerial stems of different age classes.
54965). Fires that follow abnormally
nevinii (Nevin’s barberry) under the As mentioned in the Primary
long fire-free periods likely have more
Endangered Species Act of 1973, as Constituent Elements section of the
severe impacts to the native occurrences
amended (Act). In total, approximately proposed critical habitat rule, B. nevinii
because of accumulation of standing
6 acres (ac) (3 hectares (ha)) in Riverside is not known to reproduce by vegetative
and downed fuel loads that may cause
County, California, fall within the means through the process of separation
the fire to be more destructive and burn
boundaries of the final critical habitat of rhizomes between groupings of aerial at higher temperatures. However, it is
designation. stems, as is the case with some other also likely that too-frequent fire could
DATES: This rule becomes effective on members of the genus Berberis pose a threat to this species by killing
March 14, 2008. (Mistretta and Brown 1989, p. 5; Boyd mature, seeding adults and resprouting
2006, p. 1). According to White (2007, individuals prior to seed set or recovery
ADDRESSES: The final rule, final
p. 1), the now-extirpated B. nevinii from earlier fires, as well as young
economic analysis, and map of critical occurrence in San Timoteo Canyon was
habitat will be available on the Internet plants before they have reached
likely resprouting from a large basal reproductive age. Furthermore, too-
at http://www.regulations.gov and burl, similar to what is seen in other
http://www.fws.gov/carlsbad/. frequent fire can lead to the conversion
chaparral shrub species. Generally, the of native shrublands to weedy annual
Supporting documentation we used in term burl is reserved for those more
preparing this final rule will be grasslands (D’Antonio and Vitousek
condensed rounded woody structures 1992, pp. 74–75; White 2007, p. 1).
available for public inspection, by that produce aerial stems (e.g., some
appointment, during normal business Arctostaphylos (Manzanita) species) Species Distribution
hours, at the U.S. Fish and Wildlife when plants are older or existing stems In general, Berberis nevinii has a
Service, Carlsbad Fish and Wildlife have sustained damage. Various authors limited natural distribution; it typically
Office, 6010 Hidden Valley Road, have used either of these terms (burl or occurs in small stands (less than 20
Carlsbad, CA 92011; telephone 760– rounded woody structures) to refer to individuals, and often only one or two)
431–9440; facsimile 760–431–5901. the underground portions of B. nevinii. in scattered locations in Los Angeles,
FOR FURTHER INFORMATION CONTACT: Jim We will continue to consider the basal San Bernardino, and Riverside Counties,
Bartel, Field Supervisor, U.S. Fish and structures that routinely produce new California, with the largest native
Wildlife Service, Carlsbad Fish and aerial stems as woody rhizomes. For a occurrence (as defined by the California
Wildlife Office, telephone 760–431– detailed description of B. nevinii, please Natural Diversity Database (CNDDB))
9440 (see ADDRESSES section). If you use refer to the proposed critical habitat consisting of several stands and totaling
a telecommunications device for the designation published in the Federal about 134 individuals to the south of
deaf (TDD), call the Federal Information Register on February 6, 2007 (72 FR Vail Lake in Riverside County (Boyd
Relay Service (FIRS) at 800–877–8339. 5552) and the final listing rule 1987; CNDDB 2007). B. nevinii typically
SUPPLEMENTARY INFORMATION: published in the Federal Register on occurs at elevations from 900 to 2,000
October 13, 1998 (63 FR 54956). ft (300 to 650 m) (63 FR 54956), but
Background In the proposed critical habitat rule most native occurrences are between
It is our intent to discuss only those (72 FR 5552; February 6, 2007), we 1,400 and 1,700 ft (427 to 518 m) in
topics directly relevant to the discussed the relationship between elevation (Boyd 1987, p. 2; CNDDB
development and designation of critical Berberis nevinii’s life history and 2007). For a detailed discussion and
habitat in this final rule. For additional wildfire in southern California chaparral summary of the distribution of B.
information on the description, biology, (72 FR 5556, 5560). Aerial stems of B. nevinii, please refer to the proposed
and ecology of Berberis nevinii, refer to nevinii resprout following fire (Soza and critical habitat designation published in
the final listing rule published in the Fraga 2003, p. 2; Mistretta and Brown the Federal Register on February 6,
Federal Register on October 13, 1998 1989, p. 5; USFS 2005, p. 237). Because 2007 (72 FR 5552, please refer to pages
(63 FR 54956), and the proposed critical B. nevinii fruits appear to be adapted for 5554–5556).
habitat rule published in the Federal dispersal by animals (most likely birds), In the proposed critical habitat rule
Register on February 6, 2007 (72 FR the accumulation of a seed bank seems (72 FR 5552; February 6, 2007), we
5552). unlikely (White 2007, p. 1). Seed inadvertently failed to mention an
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8413
occurrence of Berberis nevinii in Canyon (erroneously stated to be in the comment period. We also requested
Riverside, California, that was known at ANF in the proposed rule) on SBNF comments on the proposed rule and
the time of listing but is not recorded in lands. In Riverside County, there is DEA during a comment period that
the CNDDB (CNDDB 2007). This potential for suitable habitat: opened on October 17, 2007 and closed
occurrence consists of a single plant (1) On the west side of the San Jacinto on November 16, 2007 (72 FR 58793).
growing in a granite crevice on a low Mountains in the vicinity of Bautista We contacted appropriate Federal, State,
hill and is suspected to be of cultivated Canyon (Soza 2003, unpaginated; and local agencies; scientific
origin due to its isolation from known Holtrop 2007, p. 1), although surveys in organizations; and other interested
wild occurrences of B. nevinii (White these areas have failed to locate any parties and invited them to comment on
2001, p. 36). As stated in the proposed plants to date (Holtrop 2007, p. 1); the proposed rule and DEA during these
rule, we do not believe that single plant (2) In the area between Kolb Creek two comment periods.
occurrences, which do not exhibit any and Temecula Creek, south and east of During the first comment period, we
evidence of reproduction, are likely to Vail Lake (e.g., Temecula Creek received five comments directly
contribute to recovery of this species drainage, the hills between Temecula addressing the proposed critical habitat
and, therefore, are not essential to the Creek and Wilson Creek); designation: one from a peer reviewer,
conservation of this species. (3) In the canyons draining Big Oak one from a Federal agency, one from a
Furthermore, the conservation role of Mountain north of Vail Lake (Boyd et al. local agency, and two from
introduced populations is unknown. We 1989, p. 16; Soza 2003, unpaginated); organizations or individuals. During the
did not propose to include any and second comment period, we received no
occurrences suspected to be of (4) On the northern edge of the Agua comment letters on the proposed critical
cultivated origin or any occurrences that Tibia Wilderness in the CNF straddling habitat designation or DEA. We
supported a single plant. However, we Riverside and San Diego counties (Boyd reviewed all comments received during
will continue to explore the potential and Banks 1995, unpaginated; Reiser both comment periods for substantive
conservation value of naturalized 2001, unpaginated; Soza 2003, issues and new information regarding
occurrences and consider these unpaginated). the designation of critical habitat for
occurrences in future recovery actions Previous Federal Actions Berberis nevinii, addressed them in the
as appropriate. following summary, and incorporated
As stated in the proposed rule (72 FR As discussed in the proposed rule (72 them into the final rule as appropriate.
5552; February 6, 2007), potential FR 5552; February 6, 2007), the Service
agreed, as part of a settlement Peer Review
habitat within the species’ range has
been extensively botanically explored or agreement, to submit to the Federal In accordance with our policy
surveyed (Boyd 1987, p. 3), including Register a proposed rule to designate published on July 1, 1994 (59 FR
potential habitat on the San Bernardino critical habitat, if prudent, on or before 34270), we solicited expert opinions
National Forest (SBNF) in 1988 and January 30, 2007, and a final rule by from four knowledgeable individuals
1989, which yielded no new January 30, 2008 (72 FR 5556, 5557). We with scientific expertise that included
occurrences (Mistretta 1989, also published a notice of availability familiarity with the species, the
unpaginated; 72 FR 5555). Since (NOA) of the draft economic analysis geographic region in which the species
publication of the proposed rule, we (DEA) of the 2007 proposed rule in the occurs, and conservation biology
were informed by the Cleveland Federal Register on October 17, 2007 principles. We received a response from
National Forest (CNF) that surveys of (72 FR 58793). In this notice, we one of the four peer reviewers from
potential habitat on the SBNF have been announced revisions to proposed which we requested comments.
conducted since 1989, also with critical habitat subunits 1B, 1D, and 1E.
We revised these subunits based on Peer Reviewer Comments
negative results. Recent discoveries of
native occurrences of Berberis nevinii information received during the first (1) Comment: After review of personal
have been limited to individual plants comment period, as well as data files, the peer reviewer concurred with
or small stands (Boyd 1987, p. 3; Boyd obtained during the development of the our description of the occurrences of
and Banks 1995, unpaginated; Soza and DEA (see Summary of Changes from Berberis nevinii described in the
Boyd 2000, p. 4), and additional survey Proposed Rule section below for a proposed rule and was not aware of any
efforts are unlikely to identify new large detailed discussion). This final rule occurrences outside of the areas
occurrences of this species. satisfies the December 21, 2004, described in the proposed rule.
Suitable Berberis nevinii habitat may settlement agreement with respect to However, the reviewer recommended
occur in Los Angeles and San Berberis nevinii. For a discussion of that the Service review the most current
Bernardino counties on or adjacent to additional previous Federal actions CNDDB and Consortium of California
the Angeles National Forest (ANF) in involving this species, please refer to Herbaria records to identify any
the Liebre Mountains and on the south the listing rule (63 FR 54956; October additional occurrences of B. nevinii
slope of the San Gabriel Mountains 13, 1998) or the proposed critical habitat before publishing the final rule.
(Soza and Boyd 2000, p. 4). Specifically rule (72 FR 5552; February 6, 2007). Our Response: For the proposed rule,
in the San Gabriel Mountains, suitable we based our understanding of the
habitat may occur in the foothills, from Summary of Comments and current distribution of Berberis nevinii
Pacoima Canyon and Lopez Canyon, Recommendations on the most current occurrence records
both adjacent to the San Fernando We requested comments from the in the CNDDB (2006), and utilized the
Valley, and in canyons in the vicinity of public on the proposed designation of Consortium of California Herbaria
San Antonio Wash near Claremont critical habitat for Berberis nevinii records for information on specific
(Soza 2003, based on expertise of Boyd, during two comment periods. The first occurrences. Since publication of the
Rancho Santa Ana Botanic Garden). In comment period opened on February 6, proposed rule, we conducted another
San Bernardino County, there is 2007, the date of publication of the search of the CNDDB database and
potential for suitable habitat in the proposed rule (72 FR 5552), and closed Consortium records. No new occurrence
Crafton Hills area near Redlands off of on April 9, 2007. We did not receive any records were found from either source.
National Forest lands and in Cajon requests for a public hearing during this Two separate occurrences, likely
introduced, were found in Griffith Park rule, including a detailed explanation of resprouting from a large basal burl, as is
in the Hollywood Hills of Los Angeles the MSHCP and its ability to protect the often seen in other chaparral shrubs.
County. One was documented with a taxon’s habitat and the Service’s The reviewer also provided the Service
herbarium specimen (Consortium of responsibilities and authority under the with updated information on B. nevinii
California Herbaria, Berberis nevinii, MSHCP as they relate to covered species in the form of a species account
Soza et al. 1060, RSA 679741). Based on (see Relationship of Critical Habitat to (prepared by the reviewer and dated
our review of these information sources Habitat Conservation Plan Lands— March 2001) for the Bureau of Land
and the fact that the only additional Exclusions Under Section 4(b)(2) of the Management’s (BLM) planned section 7
occurrence information received during Act section below). Also, since the consultation with the Service on its
the first comment period from this peer October 6, 2004, proposed critical revision of the South Coast Resource
reviewer was in reference to a single, habitat designation for Atriplex Management Plan.
isolated individual likely of cultivated coronata var. notatior (69 FR 59844), we Our Response: We appreciate the
origin, we believe that we based the have revised our discussion of the additional information and
proposed and this final designation on benefits of including lands in critical clarifications on Berberis nevinii’s life
the best available information. habitat (see Benefits of Designating history, status and distribution, and
(2) Comment: The peer reviewer Critical Habitat section below) to response to wildfire. We have included
commented that he was unable to include a discussion of how designation this information in this final rule (please
critically review the proposed exclusion of critical habitat may impede see Background and Primary
of critical habitat covered under the cooperative conservation efforts (see Constituent Elements sections). The
Western Riverside County Multiple Conservation Partnerships on Non- Service considers the reviewer’s use of
Species Habitat Conservation Plan Federal Lands section below for a the term ‘‘burl’’ inappropriate in
(MSHCP), but suggested that the Service detailed discussion). describing the short rhizomatous
review his extensive peer review (3) Comment: The peer reviewer structures found in B. nevinii. However,
comments provided on November 3, noted that the map of proposed critical the Service concedes that often both
2004, on the proposed exclusion of habitat in the proposed rule did not these terms have been used to describe
critical habitat for Atriplex coronata var. indicate which lands were proposed for this species. The short-branched woody
notatior (San Jacinto Valley crownscale) exclusion and did not indicate land rhizomes that almost always annually
(69 FR 59844; October 6, 2004) covered ownership, and suggested including this give rise to new aerial stems in this
under the MSHCP. information on the map in the final rule. species are unlike the essentially
Our Response: The content and scope Our Response: While we did not unbranched rounded burls commonly
of the reviewer’s comments provided on include a map in the proposed rule associated with Arctostaphylos
November 4, 2004, related to the identifying the location of areas that (Manzanita) and other chaparral taxa.
Western Riverside County MSHCP also were proposed for exclusion, a map Burls normally produce new aerial
are considered applicable to the containing such information was stems from among the myriad of
proposed critical habitat designation for available on our Web site (http:// dormant surface buds only when the
Berberis nevinii. Per the reviewer’s www.fws.gov/carlsbad) during both existing stems are damaged or of
recommendation, we addressed the public comment periods. We appreciate considerable age.
specified remarks incorporated by the peer reviewer’s suggestion, and will
reference in the submitted peer review consider including maps identifying Public Comments
regarding the exclusion of critical areas proposed for exclusion in future Comments Related to the Western
habitat for Atriplex coronata var. proposed critical habitat rules. It is our Riverside County MSHCP
notatior covered under the MSHCP. practice to only publish maps of
These comments included assertions designated critical habitat in final rules. (6) Comment: One commenter stated
that: (1) It is important to include a (4) Comment: The peer reviewer strong support for the designation of
clear, detailed explanation of the commented that the proposed rule critical habitat for Berberis nevinii, but
MSHCP, its associated Implementing incorrectly identifies the location of expressed concern about the proposed
Agreement, the Service’s formal section CNDDB Element Occurrence 10 as ‘‘Big exclusion of over 92 percent of occupied
7 consultation for the MSHCP, and the Tejunga Wash’’ instead of ‘‘Big Tujunga habitat under the Western Riverside
Service’s responsibilities and authority Wash.’’ County MSHCP, including the area with
under the MSHCP as they relate to Our Response: We appreciate the the largest known occurrence of the
covered species in the final rule; (2) the correction to the misspelling of this species. The commenter questioned the
Service failed to provide an adequate location in the proposed rule. We made ability of the ‘‘untested’’ Western
basis for the exclusion of lands from the the correction in the October 17, 2007, Riverside County MSHCP to prevent
critical habitat designation and that our notice of availability for the DEA (72 FR extinction of this species or provide for
decision to do so based on the MSHCP’s 58793) (please see the Public Comments its conservation and recovery due to: (1)
ability to protect the taxon’s habitat was Solicited section of that notice). Uncertain funding mechanisms; (2)
not adequately supported; and (3) the (5) Comment: The peer reviewer understaffing in agencies involved with
rule should include further explanation provided additional information and implementing the plan; (3) the
of how the designation of critical habitat clarification on Berberis nevinii life complexity of the plan; and (4) the
for B. nevinii may impede cooperative history, including reproductive strategy intense development pressure within
conservation efforts, such as those (resprouting, seed banks, seedling the area covered by the plan. The
implemented by the MSHCP. recruitment) and its response to wildfire commenter stated that designating
In response to the peer reviewer’s and overly frequent fire. The reviewer critical habitat in this area would
concerns regarding the MSHCP and its further commented that B. nevinii is provide a safety net to protect this
associated documents, we have added probably not rhizomatous, as described endangered plant based on the
information to our discussion of the in the final listing rule and the proposed consultation requirements under section
exclusion of areas occupied by Berberis critical habitat rule, and that the 7 of the Act. Another commenter
nevinii covered by the Western reported vegetative reproduction in San expressed concern that the exclusion of
Riverside County MSHCP in this final Timoteo Canyon is probably from lands within the boundaries of the
MSHCP would not leave enough land The exclusion of critical habitat does lands from this final designation (see
within the critical habitat designation not dismiss or lessen the value of the Relationship of Critical Habitat to
for B. nevinii to thrive. Vail Lake and Oak Mountain areas to Habitat Conservation Plan Lands—
Our Response: As discussed in the the overall conservation of this species. Exclusions Under Section 4(b)(2) of the
proposed rule and in this final rule, we Rather, we believe that the judicious Act section below for a detailed
have determined that the physical and exclusion of specific areas of non- discussion). In the proposed rule, we
biological features essential to the Federal lands from critical habitat provided an analysis of the proposed
conservation of Berberis nevinii will be designations, where we have developed exclusion to allow the public to
adequately protected by the Western close partnerships with non-Federal comment and provide additional
Riverside County MSHCP and that the land owners that have resulted in the information to be considered in our
exclusion of lands covered by this development of HCPs or other voluntary final exclusion analysis. We have
regional plan will not jeopardize the conservation plans, can contribute to considered all information provided
continued existence of the species. The species recovery and provide a superior during both comment periods in
conservation objectives in the MSHCP level of conservation than the finalizing this exclusion.
for B. nevinii include: (1) Conservation designation of critical habitat alone. As
Comments Related to Criteria Used To
and management of at least 8,000 ac described in detail in the Relationship
Identify Critical Habitat
(3,238 ha) of suitable habitat, including of Critical Habitat to Habitat
all known locations for this species in Conservation Plan Lands—Exclusions (8) Comment: We received a comment
Under Section 4(b)(2) of the Act section that critical habitat should at a
the Vail Lake area; (2) implementation
below, we have determined that the minimum include all known remaining
of specific management and monitoring
benefits of excluding areas within the occurrences of the species, including
practices to help ensure the
Western Riverside County MSHCP those with a low number of individuals
conservation of B. nevinii in the MSHCP
(Subunits 1C, 1D, 1E, and 1F) outweigh (less than two) or low reproductive
Conservation Area; (3) maintenance of
the benefits of designating these lands, activity.
the physical and ecological Our Response: The Act defines
characteristics of occupied habitat; and and that this exclusion will not result in
the extinction of B. nevinii. critical habitat as the specific areas
(4) surveys and other required within the geographical area occupied
procedures to ensure avoidance of Furthermore, we expect that this species
will be conserved and recovered on by the species at the time it is listed on
impacts to at least 90 percent of suitable which are found those physical and
habitat determined important to the MSHCP lands and do not believe that
the plant will become restricted solely biological features (I) essential to the
long-term conservation of B. nevinii (see conservation of the species and (II)
Relationship of Critical Habitat to to designated lands as suggested by one
commenter. which may require special management
Habitat Conservation Plan Lands— considerations or protection, and
(7) Comment: One commenter
Exclusions Under Section 4(b)(2) of the specific areas outside the geographical
supported the proposed exclusion of
Act section for a detailed discussion of area occupied by the species at the time
private lands within the boundaries of
the MSHCP). The conservation and it is listed upon a determination by the
the Western Riverside County MSHCP
management of B. nevinii habitat as Secretary that such areas are essential
plan area from the designation of final
described in the Western Riverside for the conservation of the species. We
critical habitat because the MSHCP
County MSHCP will remove or reduce adequately provides for the survival and believe that our proposed and final
known threats to B. nevinii and its recovery of the species. However, this designations accurately describe all
habitat, providing for the survival and commenter expressed concern about specific areas meeting the definition of
recovery of this species. language in the proposed rule that states critical habitat for Berberis nevinii.
We consider the regulatory (or that this area will be included in the As discussed in the Criteria Used to
consultation) benefit of critical habitat final designation of critical habitat if the Identify Critical Habitat section of the
on these private lands to be low, as Secretary determines that the benefits of proposed rule and this final rule, we
these lands may not have a Federal including these lands outweigh the delineated proposed critical habitat for
nexus under which to initiate benefits of excluding them. They further Berberis nevinii using the following
consultation. Furthermore, any stated that under the provisions of the criteria: (1) Areas occupied by naturally
measures taken on private lands to MSHCP and the associated occurring individuals at the time of
minimize effects to a plant species or its Implementing Agreement, no critical listing and areas that are currently
habitat are completely voluntary. Under habitat for Berberis nevinii should be occupied by naturally occurring
the Implementing Agreement of the designated in the MSHCP plan area. individuals; (2) occupied areas within
Western Riverside County MSHCP, Our Response: We have determined the historical range of the species; (3)
mandatory conservation measures that private lands within the boundaries areas containing one or more of the
provide for conservation of B. nevinii of the Western Riverside County primary constituent elements (PCEs) for
and its habitat. The MSHCP addresses MSHCP contain the physical and this species; and (4) areas currently
conservation from a coordinated, biological features essential to the occupied by more than two B. nevinii
integrated perspective rather than a conservation of Berberis nevinii, and plants that show evidence of
piecemeal, project-by-project approach meet the definition of critical habitat reproduction (i.e., fruits with seed,
as would be achieved through multiple (see Criteria Used to Identify Critical seedlings, or plants of various size/age
site-by-site, section 7 consultations Habitat section below). However, we classes) on site. Application of these
involving critical habitat. Therefore, the have also determined that the benefits of criteria captures the physical and
Western Riverside County MSHCP excluding these private lands covered biological features that are essential to
provides a conservation benefit to B. by the Western Riverside County the conservation of this species,
nevinii and the physical and biological MSHCP outweigh the benefits of identified as the species’ PCEs laid out
features essential to its conservation designating critical habitat in these in the appropriate quantity and spatial
above the regulatory requirements areas, and that this exclusion will not arrangement. Thus, not all areas
associated with the designation of result in the extinction of B. nevinii; supporting the identified PCEs will
critical habitat. therefore, we have excluded all private meet the definition of critical habitat.
We recognize that our designation of to recovery of the species is unknown at time of listing, contain the physical and
critical habitat for Berberis nevinii does this time. We will continue to explore biological features essential to the
not encompass all known occurrences of the potential conservation value of these conservation of the species, and may
this species as noted by the commenter. small occurrences, and consider these require special management
As discussed in the proposed rule, for occurrences in future recovery actions considerations or protection. As
sites where no information is available as appropriate. described in the Background section,
on reproduction or size/age class Additionally, we only considered potential habitat within this species’
distribution, we assumed that areas occupied by naturally occurring range has been extensively botanically
reproduction had occurred at some individuals because we do not know the explored or surveyed (Boyd 1987, p. 3).
point in the past if multiple B. nevinii role that other occurrences (i.e., plants Surveys throughout the SBNF and the
plants were present. We also gave of cultivated origin or outplanted CNF have not identified any new
consideration to the ecological individuals originating from another occurrences of this species. All recent
uniqueness of sites. Sites meeting these part of the species’ range that have discoveries of Berberis nevinii have
criteria were included in the proposed subsequently naturalized to a new site) been limited to individual plants or
designation. will play in the conservation of the small stands (Boyd 1987, p. 3; Boyd and
We did not include sites with only species. Only about half of the known Banks 1995, unpaginated; Soza and
one individual or sites with only two Berberis nevinii individuals found in Boyd 2000, p. 4) and additional survey
individuals of the same size/age class the field are thought to be naturally efforts are unlikely to identify new large
because this condition may reflect a lack occurring (CNDDB 2007; 63 FR 54958), occurrences of this species. The long-
of successful reproduction and therefore with the vast majority of these in the term viability of single plant
the long-term viability of these vicinity of Vail Lake and Oak Mountain. occurrences or small stands where there
occurrences is questionable. As As discussed in the proposed rule, B. is no evidence of reproduction for many
discussed in the proposed critical nevinii is available in the nursery trade decades is questionable, and we do not
habitat rule, many Berberis nevinii and has been planted at numerous sites believe that these areas will
occurrences consist of very few throughout the species’ range (Boyd significantly contribute to the long-term
individuals, and sometimes consist of 1987, p. 2; Boyd and Banks 1995, recovery of this species. Furthermore,
only one or two large (presumably old) unpaginated; Reiser 2001, unpaginated). we do not have specific data concerning
shrubs that have persisted on a site for We recognize that naturalized the habitat requirements or reproductive
many decades without evidence of occurrences represent some of the biology of this species to accurately
reproducing. Because of the lack of largest (in terms of number of predict any unoccupied areas where
evidence of reproduction for these small individuals) and most vigorously reintroduction would likely be
occurrences, and the low reproductive reproducing occurrences of the species, successful. We designate critical habitat
output of mature plants and limited and could potentially play a role in in areas outside the geographical area
numbers of surviving juvenile plants in preserving genetic diversity in B. presently occupied by the species only
general, we do not consider sites with nevinii. At least one naturalized when a designation limited to its
only one plant or two plants of the same occurrence (San Francisquito Canyon) present range would be inadequate to
size/age class to represent an occurrence may contain an individual or ensure the conservation of the species
that exhibits a measurable degree of descendants of an individual that (50 CFR 424.12(e)). Accordingly, when
reproductive success that is likely to originated from a location where B. the best scientific and commercial data
contribute to the recovery of the species. nevinii no longer occurs (i.e., the San do not demonstrate that the
As explained in the Primary Fernando Valley). Thus, we will conservation needs of the species
Constituent Elements section of this continue to explore the potential require designation of critical habitat
final rule, a self-incompatible conservation value of naturalized outside of occupied areas, we will not
pollination system has been suggested occurrences, and consider these designate critical habitat in areas
(White 2001, p. 36). Additionally, occurrences in future recovery actions outside the geographical area occupied
Berberis nevinii does not appear to as appropriate. by the species. Therefore, consistent
reproduce by vegetative means Although we are not designating all with the Act and its implementing
(Mistretta and Brown 1989, p. 5; Boyd known occurrences of Berberis nevinii, regulations, we are not designating any
2006), as is the case with some other we believe that our criteria, and lands outside the area currently
members of the genus Berberis. therefore the designation, are adequate occupied by the species. We recognize
Therefore, pollen transfers from plants to ensure the conservation of this that the designation of critical habitat
in different occurrences are likely species throughout its extant range may not include all of the habitat that
necessary for reproduction to occur in based on the best available information may eventually be determined to be
sites supporting only one plant or two at this time. necessary for the recovery of the species
plants of the same size/age class. The (9) Comment: One commenter stated and critical habitat designations do not
habitat requirements and home ranges that the proposed designation is flawed signal that habitat outside the
of potential pollinator species relative to because it does not include unoccupied designation is unimportant or may not
native Berberis occurrences have not habitat for recovery, and that without contribute to recovery.
been determined; however, the lack of including some suitable, but
evidence of reproduction in these small unoccupied, habitat (areas with one or Comments Related to Federal Lands
B. nevinii occurrences suggests that more of the PCEs) in the critical habitat (10) Comment: The CNF commented
pollination may not be occurring or designation to allow Berberis nevinii to that there is one population of Berberis
another biological constraint is expand its range and promote recovery nevinii containing six individuals on
impacting the occurrences. The fact that of the species, the Service will not be approximately 7 ac (2.8 ha) of land on
reproduction has not been in evidence able to meet the Act’s recovery goals the CNF. They further stated that the
at these sites in several decades, if at all, and mandate. proposed critical habitat area mapped
suggests that they may not be viable Our Response: We have identified by the Service on the CNF (Subunit 1B)
occurrences over the long term. Whether areas within the geographical range of was 17 ac (6.8 ha), but according to CNF
or not these occurrences may contribute the species that were occupied at the survey maps, these six individuals were
outside the critical habitat map for the CNF in 1992 to direct management unable to conclude that the benefits of
Subunit 1B as described and mapped in of this species on the CNF. They further exclusion would outweigh the benefits
the February 6, 2007, proposed rule (72 commented that there has been no of inclusion in this particular instance.
FR 5552, pp. 5577, 5579). change in the status and survival Under the Joint Counterpart
Our Response: We appreciate the potential of this occurrence since its Endangered Species Act Section 7
correction and have since received discovery in 1993; the area’s fire history Consultation Regulations published in
updated locality data from the CNF for is within the range of natural variation; the Federal Register on December 8,
the Berberis nevinii occurrence on CNF and no development or fuel treatments 2003 (68 FR 68254), projects under the
lands. We verified that Subunit 1B as are planned for this area of the CNF that National Fire Plan that the USFS
described and mapped in the February would affect the species or its habitat. determines are ‘‘not likely to adversely
6, 2007, proposed rule (72 FR 5552, pp. Furthermore, the CNF also commented affect’’ any listed species or designated
5577, 5579) was inaccurate, and revised that the designation of critical habitat on critical habitat do not require any
the boundaries of this subunit based on CNF lands would not provide any additional consultation with the
the new occurrence information additional benefit to the conservation of Service. Projects within the scope of the
provided by CNF. A revised description the species or its habitat since all site- National Fire Plan include projects such
of Subunit 1B was published on October specific projects proposed by the CNF as prescribed fire, mechanical fuels
17, 2007, concurrently with the notice are subject to section 7(a)(2) treatments (thinning and removal of
of availability for the DEA (72 FR consultation with the Service and that fuels to prescribed objectives),
58793). Based on follow-up the designation would unnecessarily emergency stabilization, burned area
communication with a CNF botanist add to their analysis burden by rehabilitation, road maintenance and
(Young 2007) and a June 6, 2006, site requiring the CNF to make a operation activities, ecosystem
visit by Service biologists (Wallace determination of effect regarding critical restoration, and culvert replacement
2006a), we believe that there are only habitat when consulting under section 7 actions. Therefore, projects such as
five individuals, not six, at this site. To of the Act. restoration, revegetation, and removal of
the best of our knowledge, the final rule Our Response: We have determined nonnative species conducted in support
correctly describes the B. nevinii that National Forest lands contain of the National Fire Plan that are not
occurrence on the CNF. physical and biological features likely to adversely affect federally-listed
(11) Comment: The CNF provided the essential to the conservation of Berberis species should not add to the USFS’
following changes or clarifications to nevinii, and meet the definition of workload or cost burden by requiring
information in the proposed rule: Cajon critical habitat (see Criteria Used to them to conduct a separate analysis and
Canyon is within the SBNF, not the Identify Critical Habitat section below). make a determination of effect on
ANF; projects surveys after 1988 and We acknowledge that the revised LMP critical habitat when consulting under
1989 were conducted in the SBNF for will benefit B. nevinii and its habitat. section 7 of the Act.
potential habitat and have also yielded The LMP contains general provisions for Also, as part of our section 7
negative results; potential habitat in the species conservation and suggests consultation with the USFS on the
SBNF exists near the Crafton Hills area specific management and conservation CNF’s LMP, the USFS has already
and on the west side of the San Jacinto actions that will benefit this species and consulted on various activities carried
Mountains in the vicinity of Bautista the physical and biological features out on National Forest lands including:
Canyon, although surveys have failed to essential to its conservation. roads and trail management; recreation
locate any plants in these locations to Implementation of the LMP should management; special use permit
date. address known threats to this species on administration; administrative
Our Response: We appreciate the National Forest lands. As stated above, infrastructure; fire and fuels
clarification on the location of Cajon we appreciate and commend the efforts management; livestock grazing and
Canyon and the information on survey of the United States Forest Service range management; minerals
efforts and potential habitat on the (USFS) to conserve federally listed management; and law enforcement. In
SBNF. We have revised the text of this species on their lands. our 2005 biological opinion on the LMP,
final rule to include this new The Secretary may exclude an area we determined that implementation of
information (see Background section from critical habitat under section the plan was not likely to jeopardize the
above). 4(b)(2) of the Act after taking into continued existence of B. nevinii. Since
(12) Comment: The CNF commented consideration the economic impact, the critical habitat has not been previously
that current laws, regulations, and impact on national security, and any proposed or designated for this species,
policies, as well as the current land other relevant impact if he determines it is anticipated that the consultation
management plan direction on the CNF, that the benefits of such exclusion with the USFS regarding their current
are adequate to provide for the outweigh the benefits of designating LMP will be reinitiated. However,
conservation of the Berberis nevinii such area as critical habitat, unless he because the USFS has already consulted
occurrence and its habitat on the CNF. determines that the exclusion would with us on potential impacts to this
They further stated that they recently result in the extinction of the species species related to the activities outlined
revised their Land Management Plan concerned. We have considered the in the LMP, the USFS can supplement
(LMP) to incorporate management request from the CNF that we exclude its analysis for those activities already
direction that provides sufficient their lands because it would analyzed in the LMP with the additional
protection and management for B. unnecessarily add work in the future to analysis required for critical habitat
nevinii and its habitat, and that the determine the effect regarding critical areas. We do not believe that this
section 7 consultation on the revised habitat for actions on their lands and the additional analysis would place an
LMP resulted in the issuance of a non- fact that they had already completed undue burden on the USFS in this
jeopardy biological opinion by the consultation under section 7(a)(2) of the instance.
Service. Additionally, the Species Act on their revised LMP. Recognizing In conclusion, we are designating
Management Guide for B. nevinii that the CNF already analyzes the National Forest lands that meet the
(Mistretta and Brown 1989) developed impacts of its proposed activities on definition of critical habitat for B.
for the ANF was formally adopted by both this species and the habitat, we are nevinii because we are unable to
conclude, based on the general using ArcMap, a computer GIS program. Act (see the Relationship of Critical
assertions provided by the agency here, Use of this methodology produced more Habitat to Habitat Conservation Plans
that the benefits of excluding these precise boundaries for areas that we (HCPs)—Exclusion Under Section
National Forest lands outweigh the determined contained the physical and 4(b)(2) of the Act section below for a
benefits of their inclusion. We will, of biological features essential to the detailed discussion).
course, continue to consider on a case- conservation of Berberis nevinii. Areas (4) We made technical corrections and
by-case basis in future critical habitat outside of these boundaries were clarifications to some of the information
rules whether to exclude particular removed (see the Criteria Used to found in the following sections of the
Federal lands from such designation Identify Critical Habitat section for a proposed rule: Background, Primary
when we determine that the benefits of detailed discussion). This method of Constituent Elements, Special
such exclusion outweigh the benefits of delineation for critical habitat reduced Management Considerations or
their inclusion. the total area of habitat from Protection, Proposed Critical Habitat
approximately 361 ac (146 ha) to 173 ac Designation, and Exclusions Under
Comments Related to the Draft
(70 ha). Total area in this final critical Section 4(b)(2) of the Act for Berberis
Economic Analysis (DEA)
habitat rule is less than what was nevinii. These changes include new
We did not receive any comments estimated in the notice of availability for information or clarifications on the
related to the DEA. the DEA (72 FR 58793; October 17, distribution of B. nevinii; reproduction
Comments From State Agencies 2007) because the proposed critical strategy and life history; threats to the
habitat boundaries for subunits 1B, 1D, species and its habitat, particularly as
We did not receive any comments and 1E in the DEA were also produced they relate to transportation projects and
from State agencies on this rule. using 100 m grids (see item (3) below). land development; updated descriptions
Summary of Changes from Proposed Therefore, the DEA and final economic of the critical habitat units as described
Rule analysis (FEA) likely overestimate the above; and a more comprehensive
potential economic costs of this critical description of the relationship of critical
In preparing the final critical habitat
habitat designation because this habitat to the approved Western
designation for Berberis nevinii, we
reduction in area is not reflected in Riverside County MSHCP and the
reviewed and considered comments
either the DEA or FEA. exclusion of private lands covered by
from the peer reviewer and the public (2) We revised the location and
on the proposed designation of critical this plan.
boundaries of critical habitat Subunit 1B
habitat published on February 6, 2007 (Agua Tibia Mountain Foothills) on the Critical Habitat
(72 FR 5552). In light of comments CNF to reflect updated location Critical habitat is defined in section 3
received on the proposed rule and information provided by the National of the Act as:
information gathered for the DEA, we Forest. Revised Subunit 1B is in a new (i) The specific areas within the
reevaluated the proposed critical habitat location and encompasses geographical area occupied by a species
boundaries and published revisions to approximately 1 ac (<1 ha) of Federal at the time it is listed in accordance
proposed critical habitat subunits 1B, land managed by the CNF, rather than with the Act, on which are found those
1D, and 1E concurrently with the notice a total of 22 ac (9 ha)–17 ac (7 ha) of physical or biological features
of availability for the DEA (72 FR 58793; United States Forest Service (USFS) (a) Essential to the conservation of the
October 17, 2007). We did not receive land and 5 ac (2 ha) of private land— species and
any comments related to the DEA. This as originally proposed. Accordingly, we (b) Which may require special
final rule differs from the proposed have revised the subunit to reflect this management considerations or
designation of critical habitat published new information (please refer to the protection; and
on February 6, 2007 (72 FR 5552), as Proposed Critical Habitat Designation (c) Specific areas outside the
follows: section of this final rule). geographical area occupied by a species
(1) In the proposed rule, we based the (3) We reevaluated areas previously at the time it is listed, upon a
critical habitat boundary descriptions determined to contain the physical and determination that such areas are
on Universal Transverse Mercator biological features essential to essential for the conservation of the
(UTM) gridlines set every 328 ft (100 m). conservation of Berberis nevinii in species.
These square grids were overlaid on subunits bordering Vail Lake. We Conservation, as defined under
occurrence polygons determined to be removed areas that do not contain these section 3 of the Act, means the use of
essential to the conservation of the essential features due to lake-level all methods and procedures that are
species. Areas where the occurrence fluctuations and recurrent, episodic necessary to bring any endangered or
polygon intersected with a grid cell inundation that has lasted for relatively threatened species to the point at which
were retained. Although we used long periods of time. These revisions (as the measures provided under the Act
Geographic Information System (GIS) described in the October 17, 2007, are no longer necessary. Such methods
soil and vegetation data in an effort to notice of availability (72 FR 58793)), and procedures include, but are not
ensure that the habitat within the grid along with removing the 328 ft (100 m) limited to, all activities associated with
cells containing the occurrence grids as described in item (1) above that scientific resources management such as
polygons had one or more of the PCEs, further refined these two subunits, research, census, law enforcement,
as well as aerial photography to remove reduced the area meeting the definition habitat acquisition and maintenance,
areas that did not contain any of the of critical habitat within proposed propagation, live trapping,
PCEs, the use of UTM gridlines Subunit 1D (North of Vail Lake) from 22 transplantation, and in the
effectively created an artificial buffer ac (9 ha) to 5 ac (2 ha) and the area extraordinary case where population
around the resulting areas we meeting the definition of critical habitat pressures within a given ecosystem
determined to be essential to the within proposed Subunit 1E (South of cannot otherwise be relieved, may
conservation of the species. Therefore, Vail Lake/Peninsula) from 251 ac (102 include regulated taking.
in this final designation, we have ha) to 112 ac (45 ha). We are excluding Critical habitat receives protection
refined the critical habitat boundaries both subunits from this final under section 7 of the Act through the
by screen digitizing habitat polygons designation under section 4(b)(2) of the prohibition against Federal agencies
carrying out, funding, or authorizing the with the use of the best scientific data management considerations or
destruction or adverse modification of available, to use primary and original protection. We consider the physical or
critical habitat. Section 7(a)(2) of the Act sources of information as the basis for biological features to be the PCEs laid
requires consultation on Federal actions recommendations to designate critical out in the appropriate quantity and
that may affect critical habitat. The habitat. spatial arrangement for the conservation
designation of critical habitat does not When we are determining which areas of the species. The PCEs include, but are
affect land ownership or establish a should be designated as critical habitat, not limited to:
refuge, wilderness, reserve, preserve, or our primary source of information is (1) Space for individual and
other conservation area. Such generally the information developed population growth and for normal
designation does not allow the during the listing process for the behavior;
government or public to access private species. Additional information sources (2) Food, water, air, light, minerals, or
lands. Such designation does not may include the recovery plan for the other nutritional or physiological
require implementation of restoration, species, articles in peer-reviewed requirements;
recovery, or enhancement measures by journals, conservation plans developed (3) Cover or shelter;
private landowners. Where a landowner by States and counties, scientific status (4) Sites for breeding, reproduction,
requests federal agency funding or surveys and studies, biological and rearing (or development) of
authorization for an action that may assessments, or other unpublished offspring; and
affect a listed species or critical habitat, materials and expert opinion or (5) Habitats that are protected from
the consultation requirements of section personal knowledge. disturbance or are representative of the
7(a)(2) would apply, but even in the Habitat is often dynamic, and species historic, geographical, and ecological
event of a destruction or adverse may move from one area to another over distributions of a species.
modification finding, the landowner’s time. Furthermore, we recognize that We derive the PCEs required for
obligation is not to restore or recover the critical habitat designated at a particular Berberis nevinii from its biological
species, but to implement reasonable point in time may not include all of the needs as described below and in the
and prudent alternatives to avoid habitat areas that we may later proposed critical habitat designation
destruction or adverse modification of determine are necessary for the recovery published in the Federal Register on
critical habitat. of the species. For these reasons, a February 6, 2007 (72 FR 5552, pp. 5558–
For inclusion in a critical habitat critical habitat designation does not 5561). Additional information can also
designation, the habitat within the signal that habitat outside the be found in the final listing rule
geographical area occupied by the designated area is unimportant or may published in the Federal Register on
species at the time of listing must not promote the recovery of the species. October 13, 1998 (63 FR 54956).
contain the physical or biological Areas that are important to the
Space for Growth and Reproduction
features that are essential to the conservation of the species, but are
conservation of the species, and be outside the critical habitat designations, Berberis nevinii has a limited natural
included only if those features may will continue to be subject to distribution; it typically occurs in small
require special management conservation actions that we and other stands (less than 20 individuals, and
considerations or protection. Critical Federal agencies implement under often only one or two) in scattered
habitat designations identify, to the section 7(a)(1) of the Act. Areas that locations in Los Angeles, San
extent known using the best scientific support populations are also subject to Bernardino, and Riverside Counties,
data available, habitat areas that provide the regulatory protections afforded by California, with the largest native
essential life cycle needs of the species the section 7(a)(2) jeopardy standard, as occurrence (as defined by CNDDB)
(i.e., areas on which are found the PCEs determined on the basis of the best consisting of several stands and totaling
laid out in the appropriate quantity and available scientific information at the about 134 individuals to the south of
spatial arrangement for the conservation time of the agency action. Federally Vail Lake in Riverside County (Boyd
of the species). Under the Act, we can funded or permitted projects affecting 1987; CNDDB 2007). Within these areas,
designate critical habitat in areas listed species outside their designated B. nevinii requires appropriate soils,
outside the geographical area occupied critical habitat areas may still result in topography, cover, and drainage within
by the species at the time it is listed as jeopardy findings in some cases. the landscape to provide space, food,
critical habitat only when we determine Similarly, critical habitat designations water, air, light, minerals, or other
that those areas are essential for the made on the basis of the best available nutritional or physiological
conservation of the species. information at the time of designation requirements for individual and
Section 4 of the Act requires that we will not control the direction and population growth and reproduction.
designate critical habitat on the basis of substance of future recovery plans, Characterizing Berberis nevinii habitat
the best scientific and commercial data habitat conservation plans (HCPs), or is difficult due to the varied soils,
available. Further, our Policy on other species conservation planning bedrock substrates, and topography on
Information Standards Under the efforts if information available at the which this species naturally occurs.
Endangered Species Act (published in time of these planning efforts calls for Additionally, this species is known to
the Federal Register on July 1, 1994 (59 a different outcome. tolerate a wide range of environmental
FR 34271)), the Information Quality Act conditions in cultivation (Mistretta and
(section 515 of the Treasury and General Primary Constituent Elements (PCEs) Brown 1989, p. 6). Berberis nevinii
Government Appropriations Act for In accordance with section 3(5)(A)(i) typically occurs at elevations from 900
Fiscal Year 2001 (Pub. L. 106–554; H.R. of the Act and the regulations at 50 CFR to 2,000 ft (300 to 650 m) (63 FR 54956),
5658)), and our associated Information 424.12, in determining which areas but most native occurrences are between
Quality Guidelines provide criteria, within the geographical area occupied 1,400 and 1,700 ft (427 to 518 m) in
establish procedures, and provide by the species at the time of listing to elevation (Boyd 1987, p. 2; CNDDB
guidance to ensure that our decisions designate as critical habitat, we consider 2007). One native occurrence on the Big
are based on the best scientific data the physical or biological features Oak Mountain summit north of Vail
available. They require our biologists, to essential to the conservation of the Lake in Riverside County is at
the extent consistent with the Act and species that may require special approximately 2,700 ft (823 m)
elevation, and scattered naturalized Overlying occurrence polygons with are in canyons draining the south flank
occurrences are found outside the 900- Natural Resource Conservation Service of Big Oak Mountain and are associated
to 2,000-foot (300- to 650-m) elevation soils data, native Berberis nevinii with springs or seepages (Boyd et al.
range (Boyd 1987, pp. 42, 75; CNDDB occurrences appear to be associated 1989, p. 14). The two plants on the
2007). Berberis nevinii has been found with the following soil series: summit of Big Oak Mountain are on clay
in varied topography from nearly flat • Riverwash at the Lopez Canyon site soils with a high water-holding
sandy washes, terraces, benches, and in Los Angeles County; capacity. In the late spring and early
canyon floors to gravelly wash margins, • Sandy loam of the Saugus series in summer, this site may receive greater
steeply-sloped banks of drainages, steep Scott Canyon and coarse sandy loam of moisture in the form of condensation
rocky slopes, ridges, and mountain the Metz series from the San Timoteo from intrusion of marine air (Soza 2003,
summits (CNDDB 2007). Canyon location in San Bernardino unpaginated). Information received by a
Based on 1987 field surveys, native County; and peer reviewer of the proposed critical
Berberis nevinii occurring on slopes in • At least 17 different soil series in habitat rule appears to support this
Scott Canyon and south of Vail Lake the Vail Lake and Oak Mountain area in association with mesic microhabitats, as
were found in areas with slopes of 19 to Riverside County, including Monserate it was noted that recruitment of B.
34 degrees (Boyd 1987, pp. 7, 45, 62, 65, sandy loams; Hanford coarse sandy nevinii is typically into relatively mesic
68). Other B. nevinii plants occurring on loams; fine sandy loams of the Arlington chaparral sites (White 2001, p. 36).
slopes in the Vail Lake and Oak and Greenfield, Pachappa, and Cajalco Berberis nevinii occurs in association
Mountain area generally occupy slopes series; Cajalco rocky fine sandy loams; with the following plant communities:
of less than 34 degrees, based on Service rocky loams of the Lodi and Las Posas alluvial scrub, cismontane (e.g.,
GIS data (2006). Introduced (i.e., series; and loams of the Las Posas, San chamise) chaparral, coastal sage scrub,
nonnative) occurrences are known to Timoteo, and San Emigdio series oak woodland, and/or riparian scrub or
grow on steeper slopes (e.g., 40 to 50 (Service GIS data 2006). woodland (Boyd 1987, pp. 2, 7; Boyd
degrees) in San Francisquito Canyon 1989, pp. 6–8; 63 FR 54958; CNPS 2001,
Additional soil series found within
(Boyd 1987, p. 7). Berberis nevinii p. 96; CNDDB 2007). Native B. nevinii
mapped B. nevinii occurrences include
generally occurs on north, northeast, or in Lopez Canyon, Scott Canyon, and
gullied land and riverwash primarily
northwest-facing slopes; however, San Timoteo Canyon, as well as many
south of Vail Lake, and badlands to the
exceptions to this have been noted, of those found in the Vail Lake and Oak
north and southeast of Vail Lake. Mountain area, occur within the
including several occurrences, both Occurrences north of Vail Lake on the California Wildlife Habitat
native and naturalized, found on south south slopes of Big Oak Mountain and Relationships (CWHR) landcover
and west-facing slopes (Boyd 1987, pp. its summit are mapped primarily as described as coastal scrub or mixed
7, 40, 77; Boyd et al. 1989, p. 24; Soza Auld clay, 8 to 15 percent slopes; chaparral (Service GIS data 2006).
and Boyd 2000, p. 22; CNDDB 2007). Cajalco rocky fine sandy loam, 15 to 50 Berberis nevinii is occasionally found in
Berberis nevinii is found on a variety percent slopes, eroded; and Las Posas coastal oak woodland in the Vail Lake/
of soils and bedrock substrates. Native loam and rocky loam, 8 to 15 percent Oak Mountain area, characterized by
occurrences appear to be strongly slopes, eroded. Based on the revised open to dense stands of the large
associated with alluvial soils or soils location information received during the evergreen Quercus agrifolia (coast live
derived from nonmarine sedimentary public comment period, the B. nevinii oak) in close association with
based substrates, especially sandy site on the CNF south of Vail Lake is surrounding scrub vegetation (Boyd et
arkose (sandstone derived from granitic now mapped as rough broken land and al. 1989, p. 7). In the Vail Lake area, this
material) (Boyd 1987, p. 7; Boyd and Vasalia gravelly sand loam, with 5 to 9 woodland type is found primarily in
Banks 1995, unpaginated; Soza and percent slopes (Service GIS data 2007). sandy washes, benches, and canyons on
Boyd 2000, p. 25). Most of the plants at Native occurrences of Berberis nevinii north-facing slopes, near ephemeral
Vail Lake are found in small stands on are generally found growing in well- stream channels, or associated with
Temecula arkose soils around the drained soils, and are known from xeric springs (Boyd et al. 1989, pp. 7–8). The
southern end of the lake, with scattered slopes and rock outcrops. According to San Francisquito site, where B. nevinii
individuals in the ‘‘badlands’’ to the Lenz and Dourley (1981, as cited in has apparently naturalized, also has
southeast and southwest (Boyd and Mistretta and Brown 1989, p. 5), B. some coastal oak woodland, and Q.
Banks 1995, unpaginated). Several nevinii is considered a drought-tolerant agrifolia is locally common south of B.
small, isolated stands on the south flank species, but it will also accept large nevinii in the canyon bottom at the
of Big Oak Mountain are associated with amounts of water in cultivation without Lopez Canyon site (Soza and Boyd 2000,
metasedimentary substrates and springs apparent damage. Observations of native pp. 23, 26). Several stands in the Vail
or seeps (Boyd et al. 1989, p. 14; Soza occurrences suggest that, within its Lake area occur within the CWHR
2003, unpaginated), and two plants at general habitat, B. nevinii may be landcover described as valley foothill
the Big Oak Mountain summit occur on associated with more mesic riparian, and several occurrences are
heavy adobe or gabbro type soils with microhabitats. Niehaus (1977, p. 2) also partly characterized as annual
high water-holding capacity formed noted that B. nevinii occurs mostly at grassland (Service GIS data 2006). The
from metavolcanic geology (Mesozoic the margins of dry washes in or below Scott Canyon site is described as having
basic intrusive rock) (Soza 2003, the foothill zone, but is not present in an abundance of annual grasses (Boyd
unpaginated). The CNF occurrence is the driest portion of a wash. At some 1987, pp. 44–48, CNDDB 2007).
found at the contact between sites, B. nevinii is associated with Extant, native occurrences of Berberis
sedimentary (arkose) and species such as Lepidospartum nevinii are often found in association
metasedimentary substrates (Boyd and squamatum (scale-broom) and Prunus with one or more of the following
Banks 1995, unpaginated). Berberis ilicifolia (holly-leaved cherry), which chaparral and coastal sage scrub species:
nevinii has also been found growing on require groundwater (Niehaus 1977, p. Eriogonum fasciculatum (California
Pelona schist outcrops and granitic 2). Many of the plants in the Vail Lake buckwheat), Artemisia californica
knolls (Boyd 1987, p. 7; Soza and Boyd area are growing on mesic north- or (California sagebrush), Adenostoma
2000, p. 22). northwest-facing slopes. Several stands fasciculatum (chamise), Rhus ovata
(sugar bush), R. trilobata (skunkbrush), may be shade tolerant, but that as B. Brown 1989, p. 5; Boyd 2006); in other
R. integrifolia (lemonadeberry), Salvia nevinii matures, it may require more words, it does not regularly produce
mellifera (black sage), Sambucus sunlight (Mistretta and Brown 1989, clones (genetically identical direct
mexicana (elderberry), Prunus ilicifolia Attachment: ‘‘Report on the Population descendants) that are well separated
(hollyleaf cherry), Rhamnus crocea and Ecological Data of Mahonia nevinii’’ from the parent individual through the
(spiny redberry), and Quercus by Joy Nishida, p. 1). A similar shade process of rooting at nodes of slender
berberidifolia (scrub oak) (Boyd 1987, p. and sunlight requirement has been elongate rhizomes, as is the case with
2; CNDDB 2007). Several native noted for several other resprouting some other members of the genus
occurrences are associated with coastal chaparral shrub species, where Berberis. According to White (2007, p.
oak woodland or riparian/alluvial scrub seedlings and saplings are found mostly 1), the now-extirpated B. nevinii
vegetation, such as Quercus agrifolia, in the shade of other plants and seldom occurrence in San Timoteo Canyon,
Populus fremontii (Fremont in the open, but recruitment into the previously reported to reproduce
cottonwood), Salix laevigata (red shrub population appears to require the vegetatively, was more likely
willow), Platanus racemosa (western later development of a canopy gap, such resprouting from a large basal burl (refer
sycamore), Baccharis glutinosa (mule- as may be created by a fire event (Keeley to previous discussion of this
fat), or Lepidospartum squamatum 1992, p. 1,206). terminology under the Species
(CNDDB 2007). Boyd (1987, p. 2) has We have little information about Description and Reproduction section
noted that certain desert floral elements pollinators, seed dispersal mechanisms, above). Because vegetative reproduction
such as Encelia farinosa (brittlebush), or the reproductive biology of this appears to be uncommon, Mistretta and
Chrysothamnus nauseosus (rubber species. Berberis nevinii has loose Brown (1989, p. 5) concluded that
rabbitbrush), Artemisia tridentata clusters of bisexual yellow flowers that perpetuation of the species is likely
(sagebrush), Chilopsis linearis (desert open between March and April, and dependent on its occasional production
willow), Yucca schidigera (Mojave fleshy, yellowish-red to red berries with of viable seed.
yucca), Opuntia parryi (snake cholla), plump, brown seeds that are present
from May to July (Wolf 1940, Landscape Ecology and Population
and Atriplex canescens (fourwing Demographics of Berberis Nevinii
saltbush) are often characteristic of the unpaginated; Munz 1974, p. 245;
general area and many of the specific Neihaus 1977, p. 1; Morris 2006). Many extant occurrences of Berberis
sites where B. nevinii occurs in the Species-specific information on nevinii are associated with chaparral or
pollinators for B. nevinii is lacking. coastal sage scrub. Fire is a natural
vicinity of Vail Lake. The presence of
Native bees in the following genera have occurrence in southern California
typically desert floral elements mixing
been collected on species of Berberis shrublands, and plants occurring in
with cismontane chaparral shrubs likely
native to North America: Andrena, these vegetation communities are
reflects the transitional nature of these
Osmia, Emphoropsis, Synhalonia, resilient or adapted to these types of
sites between the cismontane area to the
Melissodes, and Ceratina (Krombein et disturbances (Keeley 1991, p. 84; Tyler
west and the Colorado Desert to the east
al. 1979, vol. 2, pp. 1796, 1797, 1835, 1996, p. 2,182). Postfire regeneration
(Boyd et al. 1989, p. 4). One native
2032, 2129, 2152, 2168, 2182). These are mechanisms among California
occurrence is on relatively flat clay
generalist taxa; however, their habitat shrubland species can generally be
lenses in an open grassland area with
requirements and home ranges relative described as obligate seeding, obligate
chaparral nearby. Associated plant sprouting, or facultative sprouting
to the native Berberis taxa have not been
species include Chenopodium (Kelly and Parker 1990, p. 114). Mature
determined. According to the U.S.
californicum (pigweed), Avena fatua plants of obligate seeder species are
Department of Agriculture (2006), native
(wild oat), Harpagonella palmeri typically killed by fire, and seeds are the
Berberis species ‘‘provide significant
(Palmer’s grappling hook), Plantago only means of regeneration. Most have
forage for native bees.’’ According to
erecta (California plantain), Convolvulus locally dispersed seeds that persist in
Mussen (2002), California’s native
simulans (bindweed), Galium porrigens the soil seed bank until dormancy is
Berberis species are ‘‘visited (and
(climbing bedstraw), and Delphinium broken by an environmental stimulus,
probably pollinated) by honey bees’’
sp. (Larkspur) (Wallace 2006b, p. 1). such as intense heat (Keeley 1991, p.
(Apis mellifera).
Several observers have noted that The genus Berberis contains species 82). Plants of obligate sprouter species,
seedlings and immature Berberis nevinii that are both self-compatible and self- on the other hand, are rarely killed by
tend to occur in areas with some incompatible (Anderson et al. 2001, p. fire, but rather resprout from roots,
measure of protection, either in the 227), and while we do not know if B. lignotubers (burls), or epicormic buds
shade or cover of another plant (Boyd nevinii is self-incompatible, we can (Kelly and Parker 1990, p. 114). These
1987, pp. 77–78; Mistretta and Brown draw some conclusions based on species have seeds that do not require
1989, p. 10). This suggests the need for observed levels of reproduction, or the fire for germination, but require fire-free
some relatively long fire-free period to lack thereof, at known occurrences. As periods for recruiting new seedlings
allow for canopy growth and the noted by the peer reviewer for the (Keeley 1991, p. 82). In some species,
creation of conditions conducive to proposed critical habitat rule, several postfire regeneration occurs by both
germination, establishment, and occurrences consist of only a single sprouts and seeds (facultative
recruitment of B. nevinii into chaparral. plant that has existed for years or sprouters), and fire-caused mortality is
This idea was also proposed by White decades without reproducing (Mistretta variable, likely due to characteristics of
(2001, p. 36) and reiterated in his review and Brown 1989), suggesting a self- the individual fire (Kelly and Parker
of our proposal (White 2007, p. 1). Boyd incompatible pollination system (White 1990, p. 114).
et al. (1987, p. 77) noted that mature 2001, p. 36). If this is the case, recovery Based on additional information
cultivated individuals were located in of this species may require pollen received through peer review of the
areas exposed to full sunlight, and transfers among the occurrences with February 6, 2007, proposed critical
Reiser (2001, unpaginated) noted that demonstrated low reproductive output. habitat rule (72 FR 5552), Berberis
mature B. nevinii shrubs frequently Berberis nevinii does not appear to nevinii appears to be an obligate
tower above associated subshrubs. reproduce by vegetative means to any sprouter as defined above, and its life
Based on field observations, seedlings great extent if at all (Mistretta and history matches Keeley’s (1991)
description of the ‘‘fire resister’’ or p. 382). As noted above, the presence of (2) Well-drained alluvial soils
‘‘nonrefractory seed’’ syndrome (i.e., a seed bank is inconsistent with the primarily of non-marine sedimentary
seeds germinate without fire-associated ‘‘non-refractory seed’’ (fire resistor) origin, such as Temecula or sandy
cues) (White 2007, p. 1). As stated in the syndrome considered to be represented arkose soils; soils of the Cajalco-
proposed rule, B. nevinii resprouts in B. nevinii (White 2007, p. 1); thus, Temescal-Las Posas soil association
following fire (Soza and Fraga 2003, p. overly frequent fires are not likely to formed on gabbro (igneous) or latite
2; Sanders 2006, unpaginated; Mistretta adversely affect the soil seed bank for (volcanic) bedrock; metasedimentary
and Brown 1989, p. 5). According to this species, as suggested in the substrates associated with springs or
Soza and Boyd (2003, p. 2), Soza (2006, proposed rule to designate critical seeps; and heavy adobe/gabbro-type
unpaginated), and the USFS (2005, p. habitat (72 FR 5560). soils derived from metavolcanic geology
237), post-fire surveys on ANF and CNF Life history characteristics and (Mesozoic basic intrusive rock) that
reported B. nevinii regeneration by population demographics of Berberis provide the appropriate nutrients and
resprouting and recruitment from seeds. nevinii are largely unknown and space for growth and reproduction; and
However, White (2007, p. 1), did not unstudied. Berberis nevinii shrubs are (3) Scrub (chaparral, coastal sage,
consider it likely that these seedlings long-lived (>50 years) (Mistretta and alluvial, riparian) and woodland (oak,
would survive exposure during early Brown 1989, p. 5) with low riparian) vegetation communities
post-fire years and would die before reproductive rates due to sporadic between 900 and 3,000 feet (275 and
reaching reproductive maturity. production of fertile seed (Mistretta and 915 meters) in elevation that provide the
Because southern California Brown 1989, p. 5). It has been suggested appropriate cover for growth and
shrublands are adapted to a natural fire that B. nevinii may be a paleoendemic reproduction.
regime, plants within these relic (meaning that its present This final designation is defined for
communities likely require such distribution is a remnant of a formerly the conservation of the physical and
conditions for long-term survival (63 FR wider distribution) (Reiser 2001, biological features essential to the
54961). Comparison of the unpaginated), which could explain its conservation of the species, which
contemporary fire regime in southern limited (small and widely scattered) support the life history functions of the
California to that of the natural regime distribution and low reproductive rates species, through the identification of the
(i.e., pre-fire suppression) shows that in the wild (Soza 2003). appropriate quantity and spatial
fire frequency has increased in the The ability of Berberis nevinii to arrangement of areas containing the
lower coastal valley and foothill zone, stump sprout following disturbance PCEs. Some units contain all of these
and that high fire frequencies tend to (e.g., fire), as well as its great longevity, PCEs and support multiple life
occur in those areas where high human may play an important role in the processes, while some units contain
densities interface with relatively persistence of the species. As discussed only a portion of these PCEs, those
undeveloped landscape (Keeley et al. in Garcia and Zamora (2003, p. 921), necessary to support the species’
1999, p. 1,831; Keeley and there may be a population maintenance particular use of that habitat. Because
Fotheringham 2001, p. 1,545; Wells et trade-off for long-lived plants between not all life history functions require all
al. 2004, p. 147; Keeley 2006, p. 382). replacement of individuals by seeding the PCEs, not all critical habitat units
However, fire suppression has kept fires and persistence of established plants. A will contain all the PCEs.
in check so that most stands burn persistence strategy may allow plants to
Special Management Considerations or
within the range of natural variation survive through unfavorable conditions,
Protection
(Keeley 2006, p. 382). Coastal sage scrub potentially to reproduce again when
and chaparral have the largest amount conditions are more favorable (Garcia When designating critical habitat, we
of area that has burned multiple times and Zamora 2003, p. 924). As assess whether the areas within the
over the past century and have the mentioned previously, sexual or geographical area occupied by the
highest potential fire frequencies of all vegetative reproduction appears to be species at the time of listing contain the
vegetation community types; only uncommon in many B. nevinii physical or biological features essential
coastal sage scrub clearly shows an occurrences. However, because the to the conservation of the species, and
increasing trend in area burned over this species is long-lived, intermittent seed whether these features may require
time period (Wells et al. 2004, pp. 148, production over the lifespan of a shrub special management considerations or
151). may be more important than annual protection. As stated in the final listing
Berberis nevinii’s specific response to seed production for perpetuating the rule (63 FR 54956, October 13, 1998),
altered fire regimes (e.g., changes to fire species. threats to the species and its physical
frequency, timing, or intensity) is and biological features include urban
unknown (63 FR 54961). However, Primary Constituent Elements for development, off-road vehicle use,
overly frequent fire on the landscape Berberis Nevinii human recreation (e.g., horseback
could potentially kill young B. nevinii Based on our current knowledge of riding), highway projects, fire
before they reach their reproductive the life history, biology, and ecology of management strategies (suppression
potential and may adversely affect Berberis nevinii and the habitat measures, brush clearing) that alter
mature B. nevinii (Boyd 1991, pp. 7, 9) requirements for sustaining the essential natural fire processes to which native
by causing repeated resprouting that life history functions of the species, we plant communities are adapted, and the
depletes stored resources faster than have determined that B. nevinii requires introduction of invasive, nonnative
they can accumulate during fire-free the PCEs described below: plants that may compete with Berberis
periods (White 2007, p. 1). Repeated (1) Low-gradient (i.e., nearly flat) nevinii or contribute to combustible fuel
burnings over short intervals could canyon floors, washes and adjacent loads (63 FR 54961). These threats can
eventually lead to type conversion of terraces, and mountain ridge/summits, directly or indirectly result in the loss,
chaparral/shrublands to nonnative or eroded, generally northeast- to modification, degradation, or

annual grassland (Boyd 1991, p. 9; northwest-facing mountain slopes and fragmentation of B. nevinii habitat,
Keeley et al. 1999, p. 1,831). This type banks of dry washes typically of less thereby eliminating or reducing
conversion has been observed in areas than 70 percent slope that provide space potential habitat for seed production
surrounding urban centers (Keeley 2006, for plant establishment and growth; and germination, seedling
establishment, plant growth and whole or in part, for acquisition and limiting or eliminating plant species
maturation, and population growth. inclusion in the MSHCP Conservation that require full or partial sun from the
Individually or combined, these threats Area as Additional Reserve Lands. plant community (72 FR 5563). Berberis
may require special management Specifically, the conservation objectives nevinii’s life history characteristics
considerations or protection of the of the MSHCP include conservation and indicate that it likely recruits into
physical and biological features as management of at least 8,000 ac (3,238 chaparral during fire-free periods and
addressed here and in more detail ha) of suitable habitat, including all may require long intervals between fires
within the individual critical habitat known locations of B. nevinii in the Vail for recruitment and population
unit descriptions that follow. Lake area (see the Relationship of increases; thus, overly frequent fire is a
Urbanization, flood control measures, Critical Habitat to Habitat Conservation substantial and immediate threat to this
road widening, and habitat degradation Plan Lands—Exclusions Under Section species (White 2007, p. 1).
from extensive recreational use have 4(b)(2) of the Act section below for a
contributed to the loss of Berberis While highway projects were
detailed discussion of the MSHCP).
nevinii habitat and have apparently Recreational activities may also identified in the final listing rule (63 FR
resulted in the extirpation of several impact the physical and biological 54956, October 13, 1998) and proposed
occurrences, particularly in the San features essential to the conservation of critical habitat rule (72 FR 5552;
Fernando Valley of Los Angeles County the species by destroying, degrading, February 6, 2007) as a threat to Berberis
(63 FR 54961). Urban development is fragmenting, or otherwise altering the nevinii, we do not anticipate that this
currently the primary threat to B. nevinii topography, soil, and vegetation activity will affect designated critical
habitat and occurrences in the vicinity community in ways that make areas less habitat in the foreseeable future.
of Vail Lake and Oak Mountain in suitable for Berberis nevinii. For Specifically, the proposed critical
Riverside County. Urbanization may example, off-highway vehicle use, habitat rule identified the proximity of
destroy, degrade, fragment, or otherwise hiking, camping, horseback riding, and Highway 79 as a potential threat to the
alter the topography, soil, and recreational facility development in or B. nevinii occurrence and habitat on the
vegetation community structure in ways near B. nevinii occurrences could alter CNF (Subunit 1B) in part due to
that make areas less suitable for B. or destroy surface and subsurface proposed highway widening and
nevinii. Land grading for residential structure through trampling and realignment activities (72 FR 5565).
development and road projects may clearing or thinning of vegetation (PCE However, we no longer anticipate that
affect the topography of the site (PCE 1); 3), the introduction of nonnative plants these activities will affect Subunit 1B
alter soil composition and structure (PCE 3), soil disturbance or compaction because: (1) There are currently no
(PCE 2); change vegetation community (PCE 2), and increased erosion and plans to widen the portion of State
composition and structure through changes to hydrological (drainage and Route 79 closest to Subunit 1B, and (2)
clearing or thinning of vegetation and water infiltration) patterns that may in the revised subunit is now more than
the introduction of nonnative plants turn affect the topography, soil, and 525 ft (160 m) south of the highway,
(PCE 3); increase erosion potential (PCE vegetation of the site (PCE 1, 2, and 3). which is far enough away that impacts
1 and 2); and change hydrological Activities associated with fire to the subunit from construction or
(drainage and water infiltration) management, such as fuel treatments, widening activities are unlikely.
patterns, thereby decreasing the quality prescribed burns, and wildfire
Based on information provided for the
and extent of available habitat for B. suppression, may also impact the
economic analysis, nonnative Arundo
nevinii. Additionally, urban physical and biological features
donax (Arundo) and other invasive
development within or near B. nevinii essential to the conservation of the
species. The creation of fuel breaks, grasses are present in Subunit 1B, and
habitat may increase the frequency of
brush clearing or thinning, and the use the CNF anticipates an eradication effort
fire on the landscape due to increased
of heavy equipment and off-road based on the weed management strategy
combustible fuel loads that may result
vehicles for fire management could in the USFS’ Revised Land Management
from the incursion and spread of annual
nonnative grasses and an increased physically remove or disturb soils and Plan for the Four Southern California
potential for fire ignition. alter soil composition (PCE 2), remove National Forests (USFS 2005).
In the February 6, 2007, proposed rule or destroy vegetation (PCE 3), increase Additional information obtained on
(72 FR 5552), we focused primarily on erosion, and alter the topography (PCE water storage at Vail Lake indicates that
potential indirect impacts of 1) and hydrologic patterns in or near lake level fluctuations could affect
urbanization on Berberis nevinii habitat Berberis nevinii occurrences. Fire proposed subunits bordering Vail Lake
and occurrences in the vicinity of Vail management activities could facilitate (specifically, proposed subunits 1D and
Lake and Oak Mountain (72 FR 5565– the incursion or spread of invasive, 1E). While we revised proposed critical
5567). Urban development is not nonnative plants by potentially habitat boundaries for these subunits
expected to directly impact the known dispersing seeds and creating based on the currently permitted storage
occurrences of B. nevinii on Federal (disturbance) conditions that increase capacity of Vail Lake (see the Criteria
land in the Vail Lake and Oak Mountain the competitive edge of nonnative Used to Identify Critical Habitat section
area, although indirect impacts species over native species, thereby in this final rule), fluctuating water
associated with increased urbanization altering the composition of the levels that surpass permitted storage
may occur. On the other hand, B. nevinii vegetation community (PCE 3). As levels and lake storage capacity could
habitat on private land in this area may pointed out in the proposed critical still affect Berberis nevinii in subunits
be subject to some degree of residential habitat rule (72 FR 5552), vegetation that border Vail Lake. However, the
development, as described below in the community composition and structure occurrences that are located closest to
critical habitat subunit descriptions (see could be altered by fire management Vail Lake have not been inundated or
the Critical Habitat Designation section activities such as prescribed fires that affected by rising water levels and
of this final rule). However, these are too frequent or that occur at times fluctuations in the recent past (Boyd
private lands are located within the of the year atypical of the natural fire 2007, p. 1), and we do not anticipate
Criteria Area of the Western Riverside regime, or by fire suppression that that any B. nevinii individuals in this
County MSHCP and are targeted, in allows overgrowth of high canopy cover, area will be affected.
Criteria Used To Identify Critical that exhibits a measurable degree of particular occurrences was provided to
Habitat reproductive success that is likely to us during the public comment period.
Berberis nevinii naturally occurs in contribute to the recovery of the species. We considered 19 of the CNDDB records
small, isolated stands across its As explained in the Primary for B. nevinii to be extant, native
geographic range, with several known Constituent Elements section of this occurrences, and all of these were
final rule, a self-incompatible known at the time of listing, although
occurrences consisting of only a single
pollination system has been suggested each was not specifically described in
large and presumably very old
(White 2001, p. 36). Additionally, the final listing rule (63 FR 54956,
individual. At most sites, there is little
Berberis nevinii does not appear to October 13, 1998). The majority of the
to no evidence of reproduction. The Vail
reproduce by vegetative means extant, native occurrences are in
Lake and Oak Mountain area in western
(Mistretta and Brown 1989, p. 5; Boyd Riverside County in the vicinity of Vail
Riverside County has the highest
2006), as is the case with some other Lake and Oak Mountain, described in
concentration of native B. nevinii,
members of the genus Berberis. the final listing rule as one of the
representing several size (age) classes.
Therefore, pollen transfers from plants primary geographical areas occupied by
Plants occur in numerous stands
in different occurrences are likely the species. Only six of the CNDDB B.
scattered throughout the area, with the necessary for reproduction to occur in nevinii occurrences, all in Riverside
largest number of plants located at the sites supporting only one plant or two County in the vicinity of Vail Lake and
south edge of Vail Lake and on the plants of the same size/age class. The Oak Mountain, met our criteria for
peninsula protruding into the lake. The habitat requirements and home ranges designating critical habitat. Five of the
long-term conservation of B. nevinii will of potential pollinator species relative to six occurrences consist of more than
depend upon the protection of these native Berberis occurrences have not two individuals, and evidence of
core native occurrences and the been determined; however, the lack of reproduction (multiple size/age classes,
maintenance of ecological functions evidence of reproduction in these small seedlings, and/or fruit with seed) is
within these sites. B. nevinii occurrences suggests that known for three of the occurrences
We delineated critical habitat for pollination may not be occurring or (CNDDB element occurrences 24, 31,
Berberis nevinii using the following another biological constraint is and 38). We do not know if
criteria: (1) Areas occupied by naturally impacting the occurrences. The fact that reproduction has occurred at the other
occurring individuals of the species at reproduction has not been in evidence three sites (CNDDB element occurrences
the time of listing and areas that are at these sites in several decades, if at all, 32, 35, and 36), but we believe that it
currently occupied by naturally suggests that they may not be viable is possible given that these occurrences
occurring individuals; (2) occupied occurrences over the long term. Whether represent some of the largest groupings
areas within the historical range of the or not these occurrences may contribute of the species.
species; (3) areas containing one or more to recovery of the species is unknown at As discussed in the Background
of the PCEs for the species; and (4) areas this time. We will continue to explore section of the proposed rule (72 FR
currently occupied by more than two B. the potential conservation value of these 5552; February 6, 2007), the Western
nevinii plants that show evidence of small occurrences, and consider these Riverside County MSHCP database
reproduction (i.e., fruits with seed, occurrences in future recovery actions contains 32 records of extant Berberis
seedlings, or plants of various size or as appropriate. nevinii occurrences from the vicinity of
age classes) on site. For sites where Whether naturalized occurrences will Vail Lake and Oak Mountain alone, as
there was no information available on play a role in conservation of the well as one record from the Soboba
reproduction or size/age class species is also unknown. However, the Badlands (72 FR 5555). However, many
distribution, we assumed that naturalized occurrences represent some of the MSHCP records overlap and some
reproduction had occurred at some of the largest (in terms of number of appear to duplicate CNDDB records. In
point in the past if multiple B. nevinii individuals) and most vigorously contrast to the CNDDB records, the
plants were present. As discussed reproducing occurrences of the species, MSHCP records largely do not contain
below, we also considered the and could potentially play a role in accompanying data, such as number of
ecological uniqueness of sites. preserving genetic diversity. At least plants, origin (native versus
We did not include sites with only one occurrence supporting naturalized introduced), and habitat associations,
one individual or sites with two plants (San Francisquito Canyon, Los making it impossible to accurately
individuals of the same size/age class Angeles County) may contain an quantify the number of distinct
because this condition may reflect a lack individual or descendents of an occurrences or plants in this area
of successful reproduction and therefore individual that originated from a nearby (Service 2004, pp. 330–331) or
the long-term viability of these extirpated occurrence (i.e., the San determine the specific location of many
occurrences is questionable. As Fernando Valley, Los Angeles County). of these occurrences. Therefore, we did
discussed in the proposed critical Thus, we will continue to explore the not rely on the MSHCP occurrence
habitat rule, many Berberis nevinii potential conservation value of records for determining critical habitat,
occurrences consist of very few introduced occurrences, and consider but rather we sought additional
individuals, and sometimes consist of these occurrences in future recovery information to clarify these records
only one or two large (presumably old) actions as appropriate. during the public comment period. We
shrubs that have persisted on a site for We are aware of 39 records for did not receive any additional
many decades without evidence of Berberis nevinii rangewide documented information in this regard.
reproducing. Because of the lack of by the CNDDB (2007). However, we do We evaluated whether geographically
evidence of reproduction for these small not have adequate information to peripheral (e.g., Los Angeles and San
occurrences, and the low reproductive determine the status of six of these Bernardino Counties) native
output of mature plants and limited occurrences, as described in the Criteria occurrences would fit into our criteria
numbers of surviving juvenile plants in Used to Identify Critical Habitat sections for identifying critical habitat. Despite
general, we do not consider sites with of the proposed rule (72 FR 5552; the biological conservation arguments
only one plant or two plants of the same February 6, 2007, p. 5562), and no raised by Lesica and Allendorf (1995;
size/age class to represent an occurrence additional information regarding these pp. 753, 754) to conserve peripheral
populations, we found that these above on aerial imagery and compared the Federal Register on October 17,
Berberis nevinii occurrences did not the polygon locations for these 2007 (72 FR 58793).
meet our criteria for designation of occurrences with location information As discussed in the October 17, 2007
critical habitat because they consisted of from field surveys to narrow and refine (72 FR 58793) notice of availability,
very few individuals (often only one) the location of B. nevinii occurrence water levels at Vail Lake can fluctuate
and did not appear to be reproducing. polygons. Finally, using aerial greatly, depending on the amount of
For example, the Lopez Canyon photography, we removed areas that did local runoff reaching the lake, both
(CNDDB 2007 element occurrence 43) not contain any of the PCEs for the within any given year and annually,
and Scott Canyon (CNDDB 2007 species (e.g., aquatic habitat in Vail frequently exceeding the 2002 water
element occurrence 5) occurrences both Lake). levels for relatively long periods of time.
consist of single large (old) individuals As described in the Summary of The RCWD, the entity that owns,
with no signs of past or current Changes from Proposed Rule section operates, and manages Vail Dam and
reproduction by seed. The San Timoteo above, in the proposed rule we overlaid Vail Lake, has a surface water storage
Canyon occurrence (CNDDB element 100 m (328 ft) square UTM grids over permit in the lake for up to 40,000 acre-
occurrence 4) has an unknown number all essential habitat to delineate the feet (49,339 cubic-meters) from
of individuals (potentially only one), proposed critical habitat boundaries and November 1 to April 30, annually. Thus,
and reproduction has likely not produce UTM coordinates. In this final we revised proposed critical habitat
occurred at this site in many decades rule we delineated critical habitat unit boundaries for subunits bordering Vail
(Sanders 2006, unpaginated). boundaries by screen-digitizing the Lake based on lake levels at RCWD’s
We also considered the ecological habitat polygons that we determined permitted storage capacity. This
uniqueness of sites because occurrences contain the physical and biological process, coupled with the removal of
within unique habitats may harbor features essential to the conservation of the 100 m (328 ft) square grids, resulted
genetic diversity that allows for Berberis nevinii. The delineation of in the removal of approximately 17 ac
persistence in these areas (Lesica and critical habitat boundaries through (7 ha) from proposed Subunit 1D and
Allendorf 1995, p. 757). We determined digitizing habitat polygons versus approximately 139 ac (56 ha) from
that ecologically unique habitats were applying 328 ft (100 m) square grids proposed Subunit 1E, leaving
essential to conservation of Berberis over the areas we determined to be approximately 5 ac (2 ha) and
nevinii, and we included these areas in essential to the species reduced the total approximately 112 ac (45 ha) in
designated critical habitat if they were proposed subunits 1D and 1E,
area from approximately 361 ac (146
occupied by more than a single large respectively.
ha), which was an overestimate of the
(i.e., mature) individual. Areas occupied Water volume in Vail Lake has been
area of essential habitat, to 173 ac (70 known to exceed 40,000 acre-feet
by only one large individual represent ha), which is the actual area we
sites where regeneration is not (49,339 cubic-meters), even filling and
determined to be essential to the surpassing lake storage capacity (50,000
occurring; thus, we did not consider conservation of the species at the time
these areas to be essential to acre-feet (61,674 cubic-meters)) with
of the proposed rule. water flowing over the spillway. The
conservation of the species.
We also evaluated whether When delineating proposed critical creation of Vail Lake in 1948 may have
maintaining adjacent unoccupied habitat, we also tried to remove areas resulted in the loss of some Berberis
habitat or corridors between from proposed subunits near Vail Lake nevinii individuals; however, the
occurrences may be important to that were identified as being under occurrences that are now located closest
facilitate and allow for pollen and seed water, and therefore did not contain the to Vail Lake have not been inundated or
dispersal within and between stands of physical and biological features (72 FR affected by rising water levels and
Berberis nevinii. Available data 5562). We based subunit delineations in fluctuations in the recent past (Boyd
indicates that the genus Berberis is the proposed rule on USGS 1-meter 2007). Thus, the revisions to proposed
likely pollinated by generalist bee taxa. resolution color-balanced, color infrared critical habitat subunits 1D and 1E are
However, we do not have any aerial photography acquired in May to not likely to result in B. nevinii
information that suggests a certain June 2002 for the Vail Lake area, individuals in this area falling outside
quantity of habitat is necessary to western Riverside County. For this final the revised subunit boundaries. These
maintain the pollinator species rule, we reevaluated proposed critical revisions will, on the other hand, more
associated with B. nevinii. habitat subunits bordering Vail Lake accurately represent B. nevinii habitat in
We delineated critical habitat unit based on updated aerial photographs subunits 1D and 1E.
boundaries in the following manner: and Vail Lake volume data provided by We are designating critical habitat in
(1) We identified all areas occupied Rancho California Water District areas that contain naturally occurring
by the species at the time of listing or (RCWD) during the development of the Berberis nevinii plants (i.e., not of
currently occupied by Berberis nevinii economic analysis. We removed areas cultivated origin or consisting of
using location data in the CNDDB along the shoreline from subunits 1D outplanted individuals). We have
(2007); (North of Vail Lake) and 1E (South of determined these areas were occupied at
(2) We classified each of these Vail Lake/Peninsula) that do not contain the time of listing and are the
occurrences as to their origin (native or the physical and biological features appropriate quantity and spatial
cultivated), status (extant or extirpated), required by Berberis nevinii and are not arrangement of areas containing the
number of plants, and evidence of occupied by the species due to lake- PCEs to constitute the physical and
reproduction, where possible; level fluctuations and recurrent, biological features essential to the
(3) We determined which occurrences episodic inundation, sometimes for conservation of the species, which
contain the physical and biological relatively long periods of time based on support the life history functions of the
features essential to the conservation of criteria discussed below. We published species.

the species using the criteria described these revisions to proposed critical When determining the critical habitat
above; and habitat and reopened the comment boundaries for this final rule, we made
(4) Using GIS, we overlaid the period in conjunction with the notice of every effort to avoid including
occurrences identified in number 3 availability for the DEA, published in developed areas, such as lands covered
by buildings, pavement, and other section 7 consultation with respect to nevinii. Table 1 outlines the area
structures, because such lands lack critical habitat and the requirement of determined to meet the definition of
PCEs for Berberis nevinii. The scale of no adverse modification, unless the critical habitat, including the areas
the maps we prepared under the specific action may affect adjacent excluded from the final critical habitat
parameters for publication within the critical habitat. designation, and the two areas
Code of Federal Regulations may not designated as final critical habitat for B.
Final Critical Habitat Designation
reflect the exclusion of such developed nevinii. A brief discussion of each area
lands. Any such lands inadvertently left We are designating one unit with two designated as critical habitat is provided
inside critical habitat boundaries shown subunits as critical habitat for Berberis in the unit descriptions below.
on the map of this critical habitat rule nevinii. The critical habitat areas Additional detailed documentation
have been excluded by text in this final identified below constitute our current concerning the essential nature of these
rule. Therefore, a Federal action best assessment of areas that meet the areas is contained in our supporting
involving these lands would not trigger definition of critical habitat for B. record for this rulemaking.
TABLE 1.—AMOUNT OF LAND DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT, AMOUNT OF LAND EXCLUDED
FROM THE FINAL CRITICAL HABITAT DESIGNATION, AND AMOUNT OF LAND DESIGNATED CRITICAL HABITAT FOR
Berberis nevinii
[Area is displayed in acres (ac) (hectares (ha)), rounded to the nearest whole number. Numbers may not sum due to rounding]
Land meeting the Land excluded

Land ownership
Critical habitat unit definition of critical from critical Critical habitat
by type habitat habitat
Unit 1. Agua Tibia/Vail Lake:

1A. Big Oak Mountain Summit ............................................ BLM .................. 5 ac (2 ha) ................. 0 ac (0 ha) ........ 5 ac (2 ha)
1B. Agua Tibia Mountain Foothills ...................................... USFS ................ 1 ac (1 ha) ................. 0 ac (0 ha) ........ 1 ac (1 ha)
1C. South Flank Big Oak Mountain ..................................... Private .............. 39 ac (16 ha) ............. 39 ac (16 ha) .... 0 ac (0 ha)
1D. North of Vail Lake ......................................................... Private .............. 5 ac (2 ha) ................. 5 ac (2 ha) ........ 0 ac (0 ha)
1E. South of Vail Lake/Peninsula ........................................ Private .............. 112 ac (45 ha) ........... 112 ac (45 ha) .. 0 ac (0 ha)
1F. Temecula Creek East .................................................... Private .............. 11 ac (4 ha) ............... 11 ac (4 ha) ...... 0 ac (0 ha)
Total .............................................................................. ........................... 173 ac (70 ha) ........... 167 ac (67 ha) .. 6 ac (3 ha)
Section 10(a)(1)(B) of the Act designation and reasons why these areas elevation and on relatively flat clay
authorizes us to issue permits for the meet the definition of critical habitat for lenses consisting of heavy adobe/gabbro
take of listed animal species incidental Berberis nevinii. type soils with high water-holding
to otherwise lawful activities. An Unit 1: Agua Tibia/Vail Lake capacity, derived from Mesozoic basic
incidental take permit application must intrusive rock (PCE 2) (Soza 2003,
be supported by a habitat conservation Unit 1 comprises approximately 6 ac unpaginated). Soils in this area are
plan (HCP) that identifies conservation (3 ha) and is divided into two subunits:
classified primarily as Auld clay, 8 to 15
measures that the permittee agrees to Big Oak Mountain Summit (1A) and
percent slopes, and Las Posas loam, 8 to
implement for the covered species to Agua Tibia Mountain Foothills (1B).
The lands in Unit 1 were occupied at 15 percent slopes, eroded (PCE 2)
minimize and mitigate the impacts of (Service GIS data 2006). This occurrence
the requested incidental take. Often the time of listing, contain the physical
and biological features essential to the is located in an open grassland area
HCPs also incorporate conservation with chaparral nearby. Associated plant
measures to benefit listed plant species, conservation of Berberis nevinii, and
may be important for maintaining species include Chenopodium
although take of plant species is not californicum, Avena fatua,
prohibited under the Act. We often genetic diversity for the species as they
include occurrences in ecologically Harpagonella palmeri, Plantago erecta,
exclude non-Federal public lands and
unique areas. Convolvulus simulans, Galium
private lands that are covered by an
porrigens, and Delphinium sp.
existing operative HCP and executed Subunit 1A: Big Oak Mountain Summit
implementation agreement (IA) under We are designating this subunit as
Subunit 1A consists of approximately critical habitat even though it is
section 10(a)(1)(B) of the Act from 5 ac (2 ha) of Federal land managed by
designated critical habitat where we occupied by only two Berberis nevinii
the BLM on Big Oak Mountain to the
determine that the benefits of exclusion plants because it represents an
north of Vail Lake in southern Riverside
outweigh the benefits of inclusion as ecologically unique site for the species
County. Two Berberis nevinii
discussed in section 4(b)(2) of the Act. individuals of different sizes (ages) and contains the physical and biological
Based on such a determination, we are occur in this subunit on the summit of features essential to the conservation of
excluding the private lands covered Big Oak Mountain at approximately B. nevinii. Additionally, this site
under the Western Riverside County 2,700 ft (823 m) elevation (i.e., the lower contains naturally occurring B. nevinii
MSHCP from the final designation of edge of the marine layer) (PCE 1 and 3). of different sizes (ages). Because this
critical habitat for Berberis nevinii (see One individual is an old plant that is occurrence is on an ecologically unique
the Relationship of Critical Habitat to covered in lichens, and the other site, this subunit may be important in
Habitat Conservation Plan Lands— individual is considerably smaller and terms of preserving genetic diversity
Exclusions Under Section 4(b)(2) of the at some distance to the northeast of the throughout the range of the species.
Act section for a detailed discussion). older plant. This location is considered Berberis nevinii occupied this subunit at
Below, we present a brief description unusual (i.e., ecologically unique) for the time of listing (63 FR 54956; October
of the areas included in the final the species in that it is at higher 13, 1998).
Bureau of Land Management land on may be significant for a species that of fire and fuels (i.e., fire suppression
Big Oak Mountain consists of three appears to rarely set seed. Berberis and prevention activities). This subunit
small parcels totaling 888 ac (360 ha) nevinii occupied this subunit at the time is within the Wildland-Urban Interface
surrounded by private land. The of listing, as identified in the final (WUI) Defense Zone (USFS 2005, p. 237;
primary threats to Berberis nevinii listing rule (63 FR 54956, October 13, Service 2005, p. 127). Some plants or
habitat in this area are the indirect 1998). habitat within the WUI Defense Zone
effects associated with urban and The Berberis nevinii occurrence on could be removed or degraded under the
residential development on private the CNF is not as well protected as the Revised Land and Resource
lands adjacent to BLM lands, such as occurrence on the ANF (USFS 2005, p. Management Plan due to fuel removal
increased human recreation; incursion 238). The primary threats to B. nevinii for fire protection or overly frequent fuel
or spread of invasive, nonnative plants; habitat in this area are human recreation treatments (Service 2005, p. 127).
and changes to the natural fire regime (off-highway vehicle use, shooting); Special management considerations or
(i.e., increased ignitions and fire wildland fire, including an increased protection of the physical and biological
frequency, and shortened fire return risk of fire ignition due to the proximity features may be required to minimize
intervals that can lead to type of State Highway 79 (USFS 2005, pp. disturbance to the vegetation and soils
conversion of shrublands to annual 232, 237); fuels and fire management within this subunit; control invasive,
grasslands). The BLM Resource activities (USFS 2005, p. 237); and nonnative plants; and maintain the
Management Plan indicates that these invasive, nonnative plants, including natural fire regime of the area.
parcels are closed to motorized vehicles potential short-term adverse effects
associated with control efforts (USFS Subunit 1C: South Flank Big Oak
and livestock grazing (BLM 1994, p. 28).
2005, p. 234). This occurrence on the Mountain
However, special management
considerations or protection for the CNF burned in 1996 and vigorously We are excluding this subunit from
physical and biological features may be resprouted following the fire (USFS the final designation of critical habitat
needed to minimize disturbance to the 2005, p. 237). According to the USFS, under section 4(b)(2) of the Act (Table
vegetation and soils within this subunit; this location has shown signs of 1). See the Relationship of Critical
control invasive, nonnative plants; and disturbance from road activities, with Habitat to Habitat Conservation Plan
maintain the natural hydrologic and fire unauthorized use of off-highway Lands—Exclusions Under Section
regime of the area resulting from urban vehicles occurring close to, but not 4(b)(2) of the Act section below for a
and residential development. within, the area occupied by the species discussion of this exclusion.
(USFS 2005, p. 235). Nonetheless, the Subunit 1D: North of Vail Lake
Subunit 1B: Agua Tibia Mountain magnitude of impacts associated with
Foothills roads and recreational activity in this We are excluding this subunit from
Subunit 1B consists of approximately area appears to be low (USFS 2005, p. the final designation of critical habitat
1 ac (<1 ha) of federally-owned land 238). Also, the USFS does not anticipate under section 4(b)(2) of the Act (Table
managed by the USFS on the CNF near substantial camping and hiking-related 1). See the Relationship of Critical
the Agua Tibia Wilderness Area in impacts to B. nevinii habitat, and Habitat to Habitat Conservation Plan
southern Riverside County, California. intends to avoid or mitigate these Lands—Exclusions Under Section
Five Berberis nevinii individuals are impacts through implementation of 4(b)(2) of the Act section below for a
known from this area and are located at Forest Plan standards (USFS 2005, p. discussion of this exclusion.
the edge of a stream channel (PCE 1) 234). Subunit 1E: South of Vail Lake/
growing in association with coast live The February 6, 2007, proposed rule Peninsula
oak and riparian woodland species (PCE (72 FR 5552) identified the proximity of
3). Nearby chaparral includes such Highway 79 as a potential threat to the We are excluding this subunit from
species as Quercus berberidifolia, Berberis nevinii occurrence and habitat the final designation of critical habitat
Adenostoma fasciculatum, and on the CNF, in part due to proposed under section 4(b)(2) of the Act (Table
Haplopappus squarrosus, and nearby highway widening and realignment 1). See the Relationship of Critical
desert species include Yucca schidigera activities (72 FR 5565). However, we no Habitat to Habitat Conservation Plan
(CNDDB 2007). These B. nevinii plants longer anticipate that these activities Lands—Exclusions Under Section
are growing under a canopy of Quercus will affect Subunit 1B as there currently 4(b)(2) of the Act section below for a
agrifolia and Platanus racemosa with are no plans for widening or realigning discussion of this exclusion.
the following species: Heteromeles Highway 79 in the section of roadway Subunit 1F: Temecula Creek East
arbutifolia, Q. berberidifolia, Elymus closest to this subunit. The revised
condensatus, Mimulus aurantiacus, subunit is now more than 525 ft (160 m) We are excluding this subunit from
Lonicera subspicata, Pterostegia south of the highway. As discussed in the final designation of critical habitat
drymarioides, and Epilobium canum. the Special Management Considerations under section 4(b)(2) of the Act (Table
Soils in this area are classified as rough or Protection section above, the 1). See the Relationship of Critical
broken land and Visalia gravelly sandy presence of invasive, nonnative plants Habitat to Habitat Conservation Plan
loam, with 5 to 9 percent slopes (PCE may impact the B. nevinii occurrence Lands—Exclusions Under Section
2) (Service GIS data 2007). and habitat at this site. However, the 4(b)(2) of the Act section below for a
We are designating this subunit as CNF anticipates an eradication effort of discussion of this exclusion.
critical habitat because it contains the the nonnative Arundo donax and other Effects of Critical Habitat Designation
physical and biological features invasive grasses (USFS 2005) present in
essential to conservation of Berberis this subunit, which should minimize Section 7 Consultation
nevinii and it contains a relatively large the impacts of this threat to the species Section 7(a)(2) of the Act requires
natural occurrence of the species. and its habitat. Federal agencies, including the Service,
Additionally, Service personnel visited One of the greatest threats to occupied to ensure that actions they fund,
this site in June 2006 while B. nevinii habitat on the CNF and the physical and authorize, or carry out are not likely to
was in fruit and found that several of biological features contained therein is jeopardize the continued existence of a
the fruits had three to four seeds, which from wildland fire and the management listed species or destroy or adversely
modify designated critical habitat. consultation on previously reviewed proposed or final regulation that
Decisions by the 5th and 9th Circuit actions in instances where we have designates critical habitat, activities
Courts of Appeals have invalidated our listed a new species or subsequently involving a Federal action that may
definition of ‘‘destruction or adverse designated critical habitat that may be destroy or adversely modify such
modification’’ (50 CFR 402.02) (see affected and the Federal agency has habitat, or that may be affected by such
Gifford Pinchot Task Force v. U.S. Fish retained discretionary involvement or designation.
and Wildlife Service, 378 F. 3d 1059 control over the action (or the agency’s Activities that, when carried out,
(9th Cir 2004) and Sierra Club v. U.S. discretionary involvement or control is funded, or authorized by a Federal
Fish and Wildlife Service et al., 245 F.3d authorized by law). Consequently, agency, may affect critical habitat and
434, 442F (5th Cir 2001)), and we do not Federal agencies may sometimes need to therefore should result in consultation
rely on this regulatory definition when request reinitiation of consultation with for Berberis nevinii include, but are not
analyzing whether an action is likely to us on actions for which formal limited to (please see Special
destroy or adversely modify critical consultation has been completed, if Management Considerations or
habitat. Under the statutory provisions those actions with discretionary Protection section for a more detailed
of the Act, we determine destruction or involvement or control may affect discussion on the impacts of these
adverse modification on the basis of subsequently listed species or actions to the listed species):
whether, with implementation of the designated critical habitat. (1) Activities that would directly or
proposed Federal action, the affected Federal activities that may affect indirectly impact Berberis nevinii
critical habitat would remain functional Berberis nevinii or its designated critical habitat and its physical and biological
to serve its intended conservation role habitat will require section 7(a)(2) features. Such activities could include,
for the species. consultation under the Act. Activities but are not limited to: Residential or
Under section 7(a)(2) of the Act, if a on State, Tribal, local or private lands commercial development; fire
Federal action may affect a listed requiring a Federal permit (such as a prevention and suppression activities,
species or its critical habitat, the permit from the U.S. Army Corps of such as the creation of fuel breaks and
responsible Federal agency (action Engineers under section 404 of the brush clearing or thinning; recreation
agency) must enter into consultation Clean Water Act (33 U.S.C. 1251 et seq.) management activities, including
with us. As a result of this consultation, or a permit from us under section managing authorized recreation and
we document compliance with the 10(a)(1)(B) of the Act) or involving some restricting unauthorized recreation
requirements of section 7(a)(2) through other Federal action (such as funding through placement of recreational
our issuance of: from the Federal Highway trailheads, signs, barriers, maps, and/or
(1) A concurrence letter for Federal Administration, Federal Aviation facilities; off-road vehicle use; heavy
actions that may affect, but are not Administration, or the Federal recreational use; road development,
likely to adversely affect, listed species Emergency Management Agency) are maintenance, or improvement projects,
or critical habitat; or examples of agency actions that may be such as road grading, widening, or
(2) A biological opinion for Federal subject to the section 7(a)(2) realignment; flood control projects, such
actions that are likely to adversely affect consultation process. Federal actions as vegetation stripping; and water
listed species or critical habitat. not affecting listed species or critical storage projects that increase the period
When we issue a biological opinion habitat, and actions on State, Tribal, that habitat is inundated. These
concluding that a project is likely to local or private lands that are not activities could change the physical and
jeopardize the continued existence of a federally funded, authorized, or biological features of the habitat by:
listed species or destroy or adversely permitted, do not require section 7(a)(2) Affecting the topography of the site;
modify critical habitat, we also provide consultations. physically removing or damaging soils
reasonable and prudent alternatives to and associated vegetation; altering the
Application of the ‘‘Adverse natural hydrology of the area; and by
the project, if any are identifiable. We
Modification’’ Standard introducing and facilitating the spread
define ‘‘Reasonable and prudent
alternatives’’ at 50 CFR 402.02 as The key factor related to the adverse of invasive, nonnative plant species.
alternative actions identified during modification determination is whether, Additionally, actions to control or
consultation that: with implementation of the proposed eradicate invasive, nonnative plants
• Can be implemented in a manner Federal action, the affected critical may cause temporary direct or indirect
consistent with the intended purpose of habitat would continue to serve its adverse impacts to B. nevinii habitat,
the action, intended conservation role for the although the ultimate outcome may be
• Can be implemented consistent species. Activities that may destroy or beneficial by removing species that
with the scope of the Federal agency’s adversely modify critical habitat are compete with B. nevinii and contribute
legal authority and jurisdiction, those that alter the physical and to high combustible fuel loads.
• Are economically and biological features to an extent that (2) Activities that would alter fire
technologically feasible, and appreciably reduces the conservation frequency in areas occupied by Berberis
• Would, in the Director’s opinion, value of critical habitat for Berberis nevinii. Such activities could include,
avoid jeopardizing the continued nevinii. Generally, the conservation role but are not limited to, prescribed burns
existence of the listed species or of B. nevinii critical habitat units is to that are too frequent or poorly timed.
destroying or adversely modifying support native occurrences of the These activities could reduce the ability
critical habitat. species in the Vail Lake and Oak of B. nevinii to grow and reproduce by
Reasonable and prudent alternatives can Mountain area, which in combination altering soil and vegetation community
vary from slight project modifications to with occurrences on private land structure and composition (e.g., type
extensive redesign or relocation of the excluded from critical habitat conversion of shrublands into
project. Costs associated with designation under section 4(b)(2) of the grasslands).
implementing a reasonable and prudent Act, comprise the core viable natural (3) Activities that would foster the
alternative are similarly variable. population(s) of the species. introduction or spread of nonnative
Regulations at 50 CFR 402.16 require Section 4(b)(8) of the Act requires us vegetation. These activities could
Federal agencies to reinitiate to briefly evaluate and describe in any include, but are not limited to: Seeding
areas with nonnative species following conservation of the species that may habitat’s contribution to the species’
a fire; planting nonnative species or require special management conservation. This will, in many
using non-weed free hay straw for slope, considerations or protection, and those instances, lead to different results and
bank, and soil erosion control; and areas outside the geographical area different regulatory requirements. Thus,
ground-disturbing activities, such as occupied by the species at the time of critical habitat designations may
recreation management projects and listing that are essential to the provide greater regulatory benefits to the
road maintenance, improvement, or conservation of the species. In recovery of a species than would listing
construction projects. These activities identifying those lands, the Service alone.
could reduce the ability of Berberis must consider the recovery needs of the There are two limitations to the
nevinii to grow and reproduce because species, such that, on the basis of the regulatory effect of critical habitat. First,
nonnative plant species may crowd out best scientific and commercial data a section 7(a)(2) consultation is required
or otherwise compete with B. nevinii. available at the time of designation, the only where there is a Federal nexus (an
Additionally, an increase in nonnative habitat that is identified, if managed, action authorized, funded, or carried out
plants could change the fire regime by could provide for the survival and by any Federal agency)—if there is no
creating conditions prone to frequent recovery of the species. Federal nexus, the critical habitat
fire (e.g., increased fuel loads and The identification of those areas that designation of private lands itself does
continuous fuel beds) and by altering are essential for the conservation of the not restrict any actions that destroy or
soil composition. species and can, if managed, provide for adversely modify critical habitat.
We consider all of the lands the recovery of a species is beneficial. Second, the designation only limits
designated as critical habitat for Berberis The process of proposing and finalizing destruction or adverse modification. By
nevinii to contain the physical and a critical habitat rule provides the its nature, the prohibition on adverse
biological features essential to the Service with the opportunity to modification is designed to ensure that
conservation of the species. The two determine the physical and biological the conservation role and function of
subunits designated as critical habitat features essential to the conservation of those areas that contain the physical
are within the geographic range of the the species within the geographical area and biological features essential to the
species, were occupied at the time of occupied by the species at the time of conservation of the species or of
listing, and are currently occupied by B. listing, as well as to determine other unoccupied areas that are essential for
nevinii. Federal agencies already consult areas essential for the conservation of the conservation of the species are not
with us on activities in areas occupied the species. The designation process appreciably reduced. Critical habitat
by B. nevinii that may affect the species includes peer review and public designation alone, however, does not
to ensure that their actions do not comment on the identified physical and require property owners to undertake
jeopardize the continued existence of B. biological features and essential areas. affirmative actions to promote the
nevinii. This process is valuable to land owners recovery of the species.
and managers in developing Once an agency determines that
Exclusions conservation management plans for consultation under section 7(a)(2) of the
identified areas, as well as any other Act is necessary, the process may
Application of Section 4(b)(2) of the Act
occupied habitat or suitable habitat that conclude informally when we concur in
Section 4(b)(2) of the Act states that may not have been included in the writing that the proposed Federal action
the Secretary must designate or revise Service’s determination of essential is not likely to adversely affect critical
critical habitat on the basis of the best habitat. habitat. However, if we determine
available scientific data after taking into The consultation provisions under through informal consultation that
consideration the economic impact, section 7(a) of the Act constitute the adverse impacts are likely to occur, then
national security impact, and any other regulatory benefits of critical habitat. As we would initiate formal consultation,
relevant impact of specifying any discussed above, Federal agencies must which would conclude when we issue
particular area as critical habitat. The consult with us on discretionary actions a biological opinion on whether the
Secretary may exclude an area from that may affect critical habitat and must proposed Federal action is likely to
critical habitat if he determines that the avoid destroying or adversely modifying result in destruction or adverse
benefits of such exclusion outweigh the critical habitat. Federal agencies must modification of critical habitat.
benefits of specifying such area as part also consult with us on discretionary For critical habitat, a biological
of the critical habitat, unless he actions that may affect a listed species opinion that concludes in a
determines, based on the best scientific and refrain from undertaking actions determination of no destruction or
data available, that the failure to that are likely to jeopardize the adverse modification may contain
designate such area as critical habitat continued existence of such species. discretionary conservation
will result in the extinction of the The analysis of effects to critical habitat recommendations to minimize adverse
species. In making that determination, is a separate and different analysis from effects to the physical and biological
the legislative history is clear that the that of the effects to the species. features essential to the conservation of
Secretary has broad discretion regarding Therefore, the difference in outcomes of the species, but it would not suggest the
which factor(s) to use and how much these two analyses represents the implementation of any reasonable and
weight to give to any factor. In the regulatory benefit of critical habitat. For prudent alternative. We suggest
following sections, we address a number some species, and in some locations, the reasonable and prudent alternatives to
of general issues that are relevant to the outcome of these analyses will be the proposed Federal action only when
exclusions we have considered. similar, because effects on habitat will our biological opinion results in an
often result in effects on the species. adverse modification conclusion.
Benefits of Designating Critical Habitat However, the regulatory standard is As stated above, the designation of
The process of designating critical different: The jeopardy analysis looks at critical habitat does not require that any
habitat as described in the Act requires the action’s impact on survival and management or recovery actions take
that the Service identify those lands on recovery of the species, while the place on the lands included in the
which are found the physical or adverse modification analysis looks at designation. Even in cases where
biological features essential to the the action’s effects on the designated consultation has been initiated under
section 7(a)(2) of the Act, the end result conserved under State laws or local (under certain circumstances) have
of consultation is to avoid jeopardy to ordinances. unintended negative consequences for
the species and/or adverse modification the conservation of species on private
Conservation Partnerships on Non-
of its critical habitat, but not necessarily lands (Wilcove et al. 1996; Bean 2002;
Federal Lands
to manage critical habitat or institute Conner and Mathews 2002; James 2002;
recovery actions on critical habitat. Most federally listed species in the Koch 2002; Brook et al. 2003). Many
Conversely, voluntary conservation United States will not recover without landowners fear a decline in their
efforts implemented through the cooperation of non-Federal property value due to real or perceived
management plans may institute landowners. More than 60 percent of the restrictions on land-use options where
proactive actions over the lands they United States is privately owned threatened or endangered species are
(National Wilderness Institute 1995), found. Consequently, harboring
encompass and are often put in place to
and at least 80 percent of endangered or endangered species is viewed by many
remove or reduce known threats to a
threatened species occur either partially landowners as a liability. This
species or its habitat; therefore
or solely on private lands (Crouse et al. perception results in anti-conservation
implementing recovery actions. We 2002, p. 720). Stein et al. (1995, p. 400)
believe that in many instances the incentives, because maintaining habitats
found that only about 12 percent of that harbor endangered species
benefit to a species and/or its habitat listed species were found almost represents a risk to future economic
realized through the designation of exclusively on Federal lands (90 to 100 opportunities (Main et al. 1999; Brook et
critical habitat is low when compared to percent of their known occurrences al. 2003).
the conservation benefit that can be restricted to Federal lands) and that 50 According to some researchers, the
achieved through conservation efforts or percent of federally listed species are designation of critical habitat on private
management plans. The conservation not known to occur on Federal lands at lands significantly reduces the
achieved through implementing HCPs all. likelihood that landowners will support
or other habitat management plans can Given the distribution of listed and carry out conservation actions
be greater than what we achieve through species with respect to land ownership, (Main et al. 1999; Bean 2002; Brook et
multiple site-by-site, project-by-project, conservation of listed species in many al. 2003). The magnitude of this
section 7(a)(2) consultations involving parts of the United States is dependent outcome is greatly amplified in
consideration of critical habitat. upon working partnerships with a wide situations where active management
Management plans may commit variety of entities and the voluntary measures (such as reintroduction, fire
resources to implement long-term cooperation of many non-Federal management, control of invasive
management and protection to landowners (Wilcove and Chen 1998; species) are necessary for species
particular habitat for at least one and Crouse et al. 2002; James 2002). conservation (Bean 2002). We believe
possibly additional listed or sensitive Building partnerships and promoting that the judicious exclusion of specific
species. Section 7(a)(2) consultations voluntary cooperation of landowners are areas of non-federally owned lands from
commit Federal agencies to preventing essential to our understanding the status critical habitat designations can
adverse modification of critical habitat of species on non-Federal lands, and contribute to species recovery and
caused by the particular project only, necessary for us to implement recovery provide a superior level of conservation.
and not to providing conservation or actions such as reintroducing listed The purpose of designating critical
long-term benefits to areas not affected species and restoring and protecting habitat is to contribute to the
by the proposed project. Thus, habitat. conservation of threatened and
implementation of any HCP or Many non-Federal landowners derive endangered species and the ecosystems
management plan that considers satisfaction from contributing to upon which they depend. The outcome
enhancement or recovery as the endangered species recovery. We of the designation, triggering regulatory
management standard may often promote these private-sector efforts requirements for actions funded,
provide as much or more benefit than a through the Department of the Interior’s authorized, or carried out by Federal
consultation for critical habitat Cooperative Conservation philosophy. agencies under section 7(a)(2) of the
designation. Conservation agreements with non- Act, can sometimes be
Federal landowners (HCPs, safe harbor counterproductive to its intended
Another benefit of including lands in agreements, other conservation purpose on non-Federal lands. Thus, the
critical habitat is that designation of agreements, easements, and State and benefits of excluding areas that are
critical habitat serves to educate local regulations) enhance species covered by effective partnerships or
landowners, State and local conservation by extending species other conservation commitments can
governments, and the public regarding protections beyond those available often be high.
the potential conservation value of an through section 7(a)(2) consultations. In
area. This helps focus and promote the past decade, we have encouraged Benefits of Excluding Lands With HCPs
conservation efforts by other parties by non-Federal landowners to enter into The benefits of excluding lands with
clearly delineating areas of high conservation agreements, based on the approved HCPs from critical habitat
conservation value for the affected view that we can achieve greater species designation include relieving
species. In general, critical habitat conservation on non-Federal land landowners, communities, and counties
designation always has educational through such partnerships than we can of any additional regulatory burden that
benefits; however, in some cases they through regulatory methods (61 FR might be imposed by critical habitat.
may be redundant with other 63854; December 2, 1996). Many HCPs take years to develop, and
educational effects. For example, HCPs Many private landowners, however, upon completion, are consistent with
have significant public input and may are wary of the possible consequences of recovery objectives for listed species
largely duplicate the educational attracting endangered species to their that are covered within the plan area.
benefits of a critical habitat designation. property. Mounting evidence suggests Many conservation plans also provide
Including lands in critical habitat also that some regulatory actions by the conservation benefits to unlisted
would inform State agencies and local Federal Government, while well- sensitive species. Imposing an
governments about areas that could be intentioned and required by law, can additional regulatory review as a result
of the designation of critical habitat may modification (see definition of ‘‘harm’’ (2) Whether there is a reasonable
undermine conservation efforts and at 50 CFR 17.3), even without the expectation that the conservation
partnerships designed to proactively critical habitat designation. In addition, management strategies and actions will
protect species to ensure that listing all other Federal actions that may affect be implemented for the foreseeable
under the Act will not be necessary. Our the listed species would still require future, based on past practices, written
experience in implementing the Act has consultation under section 7(a)(2) of the guidance, or regulations; and
found that designation of critical habitat Act, and we would review these actions (3) Whether the plan provides
within the boundaries of management for possibly significant habitat conservation strategies and measures
plans that provide conservation modification in accordance with the consistent with currently accepted
measures for a species is a disincentive definition of harm referenced above. principles of conservation biology.
to many entities which are either The information provided in the As discussed in detail below, we
currently developing such plans, or previous section applies to all the believe that the Western Riverside
contemplating doing so in the future, following discussions of benefits of County MSHCP provides for the
because one of the incentives for inclusion or exclusion of critical habitat. conservation of Berberis nevinii and its
undertaking conservation is greater ease After considering the following areas physical and biological features. We
of permitting where listed species will under section 4(b)(2) of the Act, we are have determined that the benefits of
be affected. Addition of a new excluding approximately 167 ac (67 ha) excluding essential habitat for B. nevinii
regulatory requirement would remove a of non-Federal lands from the Berberis covered by this plan, based on our
significant incentive for undertaking the nevinii critical habitat designation in partnership with private land owners
time and expense of management subunits 1C, 1D, 1E, 1F that are within and local, County, and State
planning. In fact, designating critical the Western Riverside County Multiple jurisdictions, whose commitment to
habitat in areas covered by a pending Species Habitat Conservation Plan benefiting the species is evident by the
HCP or conservation plan could result (MSHCP) area. A detailed analysis of management mandated by the MSHCP,
in the loss of some species’ benefits if our exclusion of these lands under outweighs the benefit of including these
participants abandon the planning section 4(b)(2) of the Act is provided lands in a critical habitat designation.
process, in part because of the strength below. Furthermore we have determined that
of the perceived additional regulatory exclusion of these lands will not result
Areas Considered for Exclusion Under in the extinction of B. nevinii.
compliance that such designation would Section 4(b)(2) of the Act
entail. The time and cost of regulatory Western Riverside County Multiple
compliance for a critical habitat At the request of the USFS, we
evaluated the appropriateness of Species Habitat Conservation Plan
designation do not have to be quantified (MSHCP)
for them to be perceived as an excluding Forest Service lands from the
additional Federal regulatory burden final designation of critical habitat for We are excluding from the final
sufficient to discourage continued Berberis nevinii under section 4(b)(2) of critical habitat designation for Berberis
participation in developing plans the Act based on management provided nevinii all non-Federal lands
targeting listed species’ conservation. for federally listed species, including B. (approximately 167 ac (67 ha)) covered
A related benefit of excluding lands nevinii, under the USFS Land by the Western Riverside County
covered by approved HCPs from critical Management Plan and the Species MSHCP under section 4(b)(2) of the Act.
habitat designation is the unhindered, Management Guide for B. nevinii. As The non-Federal lands that we are
continued ability it gives us to seek new discussed in more detail in our response excluding include: Approximately 39 ac
partnerships with future plan to Comment 12 in the Public Comments (16 ha) of private lands on the south
participants, including States, Counties, section above, we have concluded that flank of Big Oak Mountain (Subunit 1C);
local jurisdictions, conservation the exclusion of Forest Service lands in approximately 5 ac (2 ha) of private
organizations, and private landowners, this instance does not outweigh the lands directly north of Vail Lake
which together can implement benefits of their designation. Therefore, (Subunit 1D); approximately 112 ac (45
conservation actions that we would be as previously discussed, we are ha) of private lands to the south of Vail
unable to accomplish otherwise. We designating approximately 1 ac of Forest Lake and on the Vail Lake peninsula,
have found that potential participants Service lands in subunit 1B as critical which is the area with the largest known
are not inclined to participate in such habitat for B. nevinii. occurrence of B. nevinii (Subunit 1E);
management plans when we designate and approximately 11 ac (4 ha) of
Exclusions Under Section 4(b)(2) of the private lands north of Temecula Creek
critical habitat within the area that
Act and southeast of Vail Lake (Subunit 1F).
would be covered by such a
management plan, thus having a When performing the required The MSHCP is a large-scale, multi-
negative effect on our ability to establish analysis under section 4(b)(2) of the Act, jurisdictional HCP encompassing 1.26-
new partnerships to develop these the existence of a management plan million ac (510,000 ha) in Western
plans, particularly plans that address (HCPs as well as other types) that Riverside County. The MSHCP
landscape-level conservation of species considers enhancement or recovery of addresses 146 listed and unlisted
and habitats. By excluding these lands, listed species as its management ‘‘covered species,’’ including Berberis
we preserve our current partnerships standard is relevant to our weighing of nevinii. Participants in the Western
and encourage additional conservation the benefits of inclusion of a particular Riverside County MSHCP include 14
actions in the future. area in the critical habitat designation. cities in Western Riverside County; the
We also note that permit issuance in The following factors are considered County of Riverside, including the
association with HCP applications when we evaluate the management and Riverside County Flood Control and
require consultation under section protection provided by such plans: Water Conservation Agency (County
7(a)(2) of the Act, which would include (1) Whether the plan is complete and Flood Control), Riverside County
the review the effects of all HCP-covered provides for the conservation and Transportation Commission, Riverside
activities that might adversely impact protection of the physical and biological County Parks and Open Space District,
the species under a jeopardy standard, features essential to the conservation of and Riverside County Waste
including possibly significant habitat the species; Department; California Department of
Parks and Recreation; and the California The goal of the MSHCP is to conserve riding), highway projects, fire
Department of Transportation (Caltrans). all known locations of B. nevinii in the management strategies (suppression
The Western Riverside County MSHCP Agua Tibia/Vail Lake area and the measures, brush clearing) that alter
was designed to establish a multi- Soboba Badlands, which includes all natural fire processes, and the
species conservation program that areas and features that we have introduction of invasive, nonnative
minimizes and mitigates the expected determined to be essential to the plants that may compete with Berberis
loss of habitat and the incidental take of conservation of the species (Dudek nevinii or contribute to combustible fuel
covered species. On June 22, 2004, the 2002, p. 9–117, Table 9–2). loads (63 FR 54961). As described
Service issued an incidental take permit Furthermore, all private lands that we above, the MSHCP provides
(TE–088609–0) under section 10(a)(1)(B) are excluding from final critical habitat enhancement of habitat by removing or
of the Act to 22 permittees under the designation are within the MSHCP’s reducing threats to this species and the
MSHCP for a period of 75 years. Survey Area and will receive physical and biological features
The Western Riverside County conservation benefits under the essential to the conservation of the
MSHCP will establish approximately Additional Survey Needs and species. This MSHCP preserves habitat
153,000 ac (61,916 ha) of new Procedures policy. The MSHCP requires that supports identified core
conservation lands (Additional Reserve surveys for Berberis nevinii as part of populations of this species and,
Lands) to complement the approximate the project review process for public therefore, provides for recovery of this
347,000 ac (140,426 ha) of existing and private projects where suitable species.
natural and open space areas designated habitat is present within a defined
by the MSHCP as Public-Quasi-Public boundary of the Criteria Area (see Benefits of Exclusion Outweigh the
(PQP) lands. These PQP lands include Criteria Area Species Survey Area Map, Benefits of Inclusion
those under Federal ownership, Figure 6–2 of the MSHCP, Volume I). As discussed in the Benefits of
primarily managed by the USFS and For locations with positive survey Designating Critical Habitat section and
BLM, and also permittee-owned open- results, 90 percent of those portions of in the Service Response to Comment 6
space areas (e.g., State Parks, County the property that provide long-term above, we believe that the regulatory
Flood Control, and County Park lands). conservation value for the species will benefit of designating critical habitat on
In this final rule, we are designating as be avoided until it is demonstrated that private lands covered by the Western
critical habitat Federally-owned PQP the overall conservation objectives for Riverside County MSHCP would be low
lands. Collectively, the Additional the species have been met. Therefore, and may hinder the effective
Reserve Lands and PQP lands form the new occurrences that are found as a implementation of the plan. The
overall MSHCP Conservation Area in result of survey efforts and are Western Riverside County MSHCP
which ‘‘covered species,’’ including subsequently determined to be addresses conservation issues from a
Berberis nevinii, will be protected. The important to the overall conservation of coordinated, integrated perspective and
precise configuration of the 153,000 ac the species may be included in the will achieve better Berberis nevinii
(61,916 ha) of Additional Reserve Lands Additional Reserve Lands. conservation than would be achieved
is not mapped or precisely identified in Numerous processes are incorporated through multiple site-by-site, project-by-
the MSHCP, but rather is based on into the MSHCP that allow for Service project, section 7 consultations
textual descriptions of a Conceptual oversight of MSHCP implementation. involving consideration of critical
Reserve Design within the bounds of a These processes include: Annual habitat. Furthermore, biological
310,000 ac (125,453 ha) ‘‘Criteria Area’’ reporting requirements; joint review of opinions for plants do not include an
that is interpreted as implementation of projects proposed within the Criteria incidental take statement and, therefore,
the MSHCP proceeds. Area; participation on the Reserve contain no mandatory reasonable and
All private lands that we are Management Oversight Committee; and prudent measures issued to minimize
excluding from the final critical habitat a Reserve Assembly Accounting the effect of any predicted loss of plants.
designation under section 4(b)(2) of the Process. The Reserve Assembly Any measures taken to minimize effects
Act are within the MSHCP’s Criteria Accounting Process will be to the plant species or its habitat are
Area and are targeted for inclusion implemented to ensure that the voluntary. The Western Riverside
within the MSHCP Conservation Area as conservation of lands occurs in rough County MSHCP provides for the
potential Additional Reserve Lands. In proportionality to development, that proactive monitoring and management
addition to the lands we have lands are assembled in the configuration of conserved lands (as previously
determined to be essential to the as generally described in the MSHCP, described), reducing known threats to
conservation of the species, and that conservation goals and the B. nevinii and its habitat.
conservation objectives in the MSHCP objectives are being achieved (Service Conservation and management of
for Berberis nevinii provide for 2004, pp. 19–26). The Service is also Berberis nevinii habitat is essential to
conservation and management of at least responsible for reviewing the survival and recovery of this
8,000 ac (3,238 ha) of suitable habitat Determinations of Biologically species. Such conservation needs are
(defined as chaparral and Riversidean Equivalent or Superior Preservation that typically not addressed through the
alluvial fan sage scrub between 984 and are proposed under the Protection of application of the statutory prohibition
2,162 ft (300 and 659 m) in elevation) Species Associated with Riparian/ on adverse modification or destruction
in the Vail Lake area. As discussed in Riverine Areas and Vernal Pools policy of critical habitat. The Western
the Background section of the proposed and for reviewing minor amendment Riverside County MSHCP provides as
rule (72 FR 5552; February 6, 2007), we projects for consistency with the much or more conservation benefit to
were unable to accurately quantify the requirements of the MSHCP (Service the species than a consultation for
exact number of B. nevinii occurrences 2004, pp. 19–26). critical habitat designation conducted
or plants within the MSHCP Plan Area As stated in the final listing rule (63 under the standards required by the
(72 FR 5555). Nevertheless, all essential FR 54956, October 13, 1998), threats to Ninth Circuit in the Gifford Pinchot
habitat within the MSHCP area are the species and its habitat include urban decision. Furthermore, educational
either within existing PQP lands or development, off-road vehicle use, benefits that may be derived from a
proposed Additional Reserve Lands. human recreation (e.g., horseback critical habitat designation are low in
this case and largely redundant to the critical habitat for Berberis nevinii will The economic analysis focuses on the
educational benefits achieved through result in the extinction of the species. direct and indirect costs of the rule.
the significant public, State, and local The MSHCP provides protection and However, economic impacts to land use
government input solicited and received management, in perpetuity, of lands activities can exist in the absence of
during the development of the Western within subunits 1C, 1D, 1E, and 1F, critical habitat. These impacts may
Riverside County MSHCP. including the physical and biological result from, for example, section 7
We have developed close partnerships features essential to the conservation of consultations under the jeopardy
with the 22 MSHCP permittees through B. nevinii. In addition, the jeopardy standard, local zoning laws, State and
the development of this regional HCP standard of section 7 of the Act and natural resource laws, and enforceable
that incorporates appropriate routine implementation of conservation management plans and best
protections and management of the measures through the section 7 process management practices applied by other
physical and biological features also provide assurances that the species State and Federal agencies.
essential to the conservation of this will not go extinct. Potential costs associated with
species. Those protections are invasive, nonnative plant species
consistent with the mandates under Economic Analysis management, recreation management,
section 7 of the Act to avoid adverse Section 4(b)(2)of the Act requires us fire management, and section 7
modification or destruction of critical to designate critical habitat on the basis consultations comprised all of the
habitat and go beyond that prohibition of the best scientific information quantified impacts in the areas we are
by including active management and available and to consider economic and designating as critical habitat. The
protection of essential habitat areas. By other relevant impacts of designating a Federal government is expected to bear
excluding these lands from designation, particular area as critical habitat. the entire cost of the anticipated upper-
we are eliminating a largely redundant Section 4(b)(2) of the Act allows the bound future impacts, with the
layer of regulatory review for a limited Secretary to exclude areas from critical following anticipated split among
set of projects on non-Federal lands that habitat for economic reasons if the agencies: BLM, 61 percent; USFS, 35
are addressed by the MSHCP, and we Secretary determines that the benefits of percent; Service, 4 percent. Similarly,
are helping to preserve our ongoing such exclusion exceed the benefits of we anticipate that Subunit 1A (Big Oak
partnerships with the permittees and designating the area as critical habitat. Mountain Summit), which is managed
encouraging new partnerships with However, this exclusion cannot occur if by BLM, will account for the majority
other landowners and jurisdictions. it will result in the extinction of the (62 percent) of the total upper-bound
Those partnerships, and the landscape species concerned. future conservation impacts.
level, multiple-species conservation Following the publication of the Potential costs associated with
planning efforts they promote, are proposed critical habitat designation, changes to the management of Vail Lake
critical for the conservation of Berberis we conducted an economic analysis to comprised the majority of the total
nevinii. Designating critical habitat on estimate the potential economic effect of quantified upper-bound future impacts
non-Federal lands within the Western the designation. The draft analysis in areas we are excluding from the
Riverside County MSHCP could have a (dated September 4, 2007) was made designation of critical habitat under
detrimental effect to our partnerships available for public review between section 4(b)(2) of the Act. This cost
with the 22 MSHCP permittees and October 17, 2007 and November 16, would have been borne entirely by
could be a significant disincentive to the 2007 (72 FR 58793). We did not receive Rancho California Water District
establishment of future partnerships and any public comments related to the draft (RCWD), the entity that manages Vail
HCPs with other partners. economic analysis. A final analysis of Lake, and is based on the scenario that
We have reviewed and evaluated the the potential economic effects of the RCWD would not be able to implement
exclusion of 167 ac (67 ha) of non- designation was developed taking into the preferred alternative (Hybrid 1
Federal lands that meet the definition of consideration any relevant new Alternative) of their Regional Integrated
critical habitat within the Western information. Resources Plan, which calls for
Riverside County MSHCP plan area The primary purpose of the economic additional water storage in Vail Lake so
from the designation of final critical analysis is to estimate the potential as to cost-effectively meet the future
habitat for Berberis nevinii and have economic impacts associated with the municipal and agricultural demands of
determined that the benefits of designation of critical habitat for customers. Other impacts in areas
excluding these lands in subunits 1C, Berberis nevinii. This information is excluded from the final designation of
1D, 1E, and 1F outweigh the benefits of intended to assist the Secretary in critical habitat were based on the costs
including them. As discussed above, the making decisions about whether the of acquisition, management, biological
MSHCP will provide for significant benefits of excluding particular areas monitoring, and administration of land
preservation and management of the from the designation outweigh the to be acquired under the Western
physical and biological features benefits of including those areas in the Riverside County MSHCP, or impacts
essential to B. nevinii and will help designation. This economic analysis associated with development
reach the recovery goals for this species. considers the economic efficiency opportunities on private land within the
effects that may result from the Plan Area for the MSHCP.
Exclusion Will Not Result in Extinction designation, including habitat We estimated potential economic
of the Species protections that may be co-extensive effects of actions related to the
In keeping with our analysis and with the listing of the species. It also conservation of Berberis nevinii under
conclusion detailed in our biological addresses distribution of impacts, sections 4, 7, and 10 of the Act and
opinion for the Western Riverside including an assessment of the potential those attributable to designating critical
County MSHCP (Service 2004, p. 334), effects on small entities and the energy habitat to be approximately $169,000 to
we do not believe that the exclusion of industry. This information can be used $172,000 in undiscounted dollars over
non-Federal lands that meet the by the Secretary to assess whether the the next 20 years in areas we are
definition of critical habitat within the effects of the designation might unduly designating as final critical habitat
Western Riverside County MSHCP plan burden a particular group or economic (subunits 1A and 1B). Discounted future
area from the final designation of sector. costs were estimated to be
approximately $136,000 to $139,000 administrative impacts to the USFS. accordance with the provisions of E.O.
($10,000 annualized) at a 3 percent After consideration of the impacts under 12866, this rule is not considered
discount rate or approximately $107,000 section 4(b)(2) of the Act, we have not significant.
to $110,000 ($11,000 annualized) at a 7 excluded any areas from the final Executive Order 12866 directs Federal
percent discount rate for activities in critical habitat designations based on agencies issuing regulations to evaluate
subunits 1A and 1B. We estimated the identified economic impacts. regulatory alternatives (Office of
potential economic effects to be The final economic analysis is Management and Budget, Circular A–4,
approximately $1.7 to $433.5 million in available at http://www.regulations.gov September 17, 2003). Under Circular
undiscounted dollars over the next 20 and http://www.fws.gov/carlsbad or A–4, once an agency determines that the
years (or 40 years for impacts related to upon request from the Carlsbad Fish Federal regulatory action is appropriate,
management of Vail Lake) in areas we and Wildlife Office (see ADDRESSES the agency must consider alternative
are excluding from final critical habitat section). regulatory approaches. Because the
under section 4(b)(2) of the Act based on determination of critical habitat is a
Required Determinations statutory requirement under the Act, we
the Western Riverside County MSHCP
(Subunits 1C through 1F). Discounted Regulatory Planning and Review must evaluate alternative regulatory
future costs were estimated at approaches, where feasible, when
In accordance with Executive Order issuing a designation of critical habitat.
approximately $1.2 to $232.5 million at 12866 (E.O. 12866), we evaluate four
a 3 percent discount rate ($82,000 to In developing our designations of
parameters in determining whether a critical habitat, we consider economic
$10.1 million annualized) or rule is significant. If any one of the
approximately $0.9 to $118.1 million at impacts, impacts to national security,
following four parameters are met, the and other relevant impacts under
a 7 percent discount rate ($81,000 to Office of Management and Budget
$8.9 million annualized) for activities in section 4(b)(2) of the Act. Based on the
(OMB) will designate that rule as discretion allowable under this
subunits 1C, 1D, 1E, and 1F. The latter significant under E.O. 12866:
impacts would only occur if the areas provision, we may exclude any
(a) The rule would have an annual particular area from the designation of
we proposed for exclusion were instead economic effect of $100 million or more
designated as critical habitat for B. critical habitat providing that the
or adversely affect an economic sector, benefits of such exclusion outweigh the
nevinii. Note that these cost estimates productivity, jobs, the environment, or
were based on revisions to the proposed benefits of specifying the area as critical
other units of the government; habitat and that such exclusion would
designation of critical habitat subunits (b) The rule would create
1B, 1D, and 1E as described in the not result in the extinction of the
inconsistencies with other Federal species. We believe that the evaluation
notice of availability for the DEA agencies’ actions; of the inclusion or exclusion of
published on October 17, 2007 (72 FR (c) The rule would materially affect particular areas, or a combination of
58793). entitlements, grants, user fees, loan both, constitutes our regulatory
The Service also completed a final programs, or the rights and obligations alternative analysis for designations.
economic analysis (FEA) of the of their recipients; or
designation of critical habitat for (d) The rule would raise novel legal Regulatory Flexibility Act (5 U.S.C. 601
Berberis nevinii that updates the DEA by or policy issues. If OMB requests to et seq.)
removing impacts that were not informally review a rule designating Under the Regulatory Flexibility Act
considered probable or likely to occur critical habitat for a species, we (RFA; 5 U.S.C. 601 et seq., as amended
and by adding an estimate of the costs consider that rule to raise novel legal by the Small Business Regulatory
associated solely with the designations and policy issues. Because no other Enforcement Fairness Act (SBREFA) of
of critical habitat for B. nevinii Federal agencies designate critical 1996), whenever an agency must
(incremental impacts). The FEA habitat, the designation of critical publish a notice of rulemaking for any
estimates that the potential economic habitat will not create inconsistencies proposed or final rule, it must prepare
effects of actions relating to the with other agencies’ actions. We use the and make available for public comment
conservation of B. nevinii, including economic analysis of the critical habitat a regulatory flexibility analysis that
costs associated with sections 4, 7, and designation to evaluate the potential describes the effects of the rule on small
10 of the Act, and including those effects related to the other parameters of entities (small businesses, small
attributable to the designation of critical E.O. 12866 and to make a determination organizations, and small government
habitat, will be $1.80 million as to whether the regulation may be jurisdictions). However, no regulatory
(undiscounted) over the next 20 years. significant under parameter (a) or (c) flexibility analysis is required if the
The present value of these impacts, listed above. head of the agency certifies the rule will
applying a 3 percent discount rate, is Based on the economic analysis of the not have a significant economic impact
$1.34 million; or $0.95 million, using a critical habitat designation, we have on a substantial number of small
discount rate of 7 percent. This is a determined that the designation of entities. SBREFA amended RFA to
reduction from the impacts estimated in critical habitat for Berberis nevinii will require Federal agencies to provide a
the DEA of about $0.15 million not result in an annual effect on the statement of the factual basis for
(undiscounted) over the next 20 years. economy of $100 million or more or certifying that the rule will not have a
The FEA also estimates total costs affect the economy in a material way. significant economic impact on a
attributable solely to the designation of Based on previous critical habitat substantial number of small entities. In
critical habitat for B. nevinii designations and the economic analysis, this final rule, we are certifying that the
(incremental costs) to be $3,593 (present we believe this rule will not materially critical habitat designation for Berberis
value at a three percent discount rate). affect entitlements, grants, user fees, nevinii will not have a significant
When critical habitat for this species is loan programs, or the rights and economic impact on a substantial
designated, it is anticipated that the obligations of their recipients. OMB has number of small entities. The following
consultation with the USFS regarding not requested to informally review this discussion explains our rationale.
their current Land Management Plan rule, and thus this action does not raise According to the Small Business
will be reinitiated, resulting in novel legal or policy issues. In Administration (SBA), small entities
include small organizations, such as Consultation section). Federal agencies The entire designated critical habitat is
independent nonprofit organizations; also must consult with us if their owned and managed by the Federal
small governmental jurisdictions, activities may affect critical habitat. government, which is not considered a
including school boards and city and Designation of critical habitat, therefore, small business entity. Therefore, based
town governments that serve fewer than could result in an additional economic on the above reasoning and currently
50,000 residents; as well as small impact on small entities due to the available information, we certify that
businesses. Small businesses include requirement to reinitiate consultation this rule will not have a significant
manufacturing and mining concerns for ongoing Federal activities (see economic impact on a substantial
with fewer than 500 employees, Application of the ‘‘Adverse number of small entities. A regulatory
wholesale trade entities with fewer than Modification’’ Standard section). flexibility analysis is not required.
100 employees, retail and service The FEA examined the potential for
Berberis nevinii conservation efforts to Small Business Regulatory Enforcement
businesses with less than $5 million in
affect small entities. This analysis was Fairness Act (5 U.S.C. 801 et seq.)
annual sales, general and heavy
construction businesses with less than based on the estimated impacts Under SBREFA, this rule is not a
$27.5 million in annual business, associated with the listing of B. nevinii major rule. Our detailed assessment of
special trade contractors doing less than and proposed critical habitat the economic effects of this designation
$11.5 million in annual business, and designation and evaluated the potential is described in the economic analysis.
agricultural businesses with annual for economic impacts related to Based on the effects identified in the
sales less than $750,000. To determine transportation projects; land economic analysis, we believe that this
if potential economic impacts to these development; management of Vail Lake; rule will not have an annual effect on
small entities are significant, we recreation; fire management; and the economy of $100 million or more,
consider the types of activities that invasive, nonnative plant species will not cause a major increase in costs
might trigger regulatory impacts under management. The FEA also estimated or prices for consumers, and will not
this rule, as well as the types of project the costs associated solely with the have significant adverse effects on
modifications that may result. In designation of critical habitat for B. competition, employment, investment,
general, the term ‘‘significant economic nevinii (incremental impacts). Overall, productivity, innovation, or the ability
impact’’ is meant to apply to a typical the FEA estimates that the potential of U.S.-based enterprises to compete
small business firm’s business economic effects of actions relating to with foreign-based enterprises. Refer to
operations. the conservation of B. nevinii, including the final economic analysis for a
To determine if the rule could costs associated with sections 4, 7, and discussion of the effects of this
significantly affect a substantial number 10 of the Act, and including those determination (see ADDRESSES for
of small entities, we consider the attributable to the designation of critical information on obtaining a copy of the
number of small entities affected within habitat, will be $1.80 million final economic analysis).
particular types of economic activities (undiscounted) over the next 20 years.
(e.g., housing development, grazing, oil The present value of these impacts, Executive Order 13211—Energy Supply,
and gas production, timber harvesting). applying a 3 percent discount rate, is Distribution, or Use
We apply the ‘‘substantial number’’ test $1.34 million; or $0.95 million, using a On May 18, 2001, the President issued
individually to each industry to discount rate of 7 percent. This is a an Executive Order (E.O. 13211; Actions
determine if certification is appropriate. reduction from the impacts estimated in Concerning Regulations That
However, the SBREFA does not the DEA of about $0.15 million Significantly Affect Energy Supply,
explicitly define ‘‘substantial number’’ (undiscounted) over the next 20 years. Distribution, or Use) on regulations that
or ‘‘significant economic impact.’’ The FEA also estimates total costs significantly affect energy supply,
Consequently, to assess whether a attributable solely to the designation of distribution, and use. E.O. 13211
‘‘substantial number’’ of small entities is critical habitat for B. nevinii requires agencies to prepare Statements
affected by this designation, this (incremental costs) to be $3,593 (present of Energy Effects when undertaking
analysis considers the relative number value at a three percent discount rate). certain actions. OMB has provided
of small entities likely to be impacted in Impacts to small entities are not guidance for implementing this
an area. In some circumstances, anticipated because the final Executive Order that outlines nine
especially with critical habitat designation of critical habitat for B. outcomes that may constitute ‘‘a
designations of limited extent, we may nevinii includes only Federal lands, and significant adverse effect’’ when
aggregate across all industries and costs associated with modifications to compared without the regulatory action
consider whether the total number of activities will be borne entirely by the under consideration. The final
small entities affected is substantial. In Federal government (USFS or BLM) as economic analysis finds that none of
estimating the number of small entities we do not anticipate any applicants these criteria are relevant to this
potentially affected, we also consider would be involved in consultations analysis. Thus, based on information in
whether their activities have any regarding impacts to the designated the economic analysis, energy-related
Federal involvement. critical habitat (please refer to section impacts associated with B. nevinii
Designation of critical habitat only Appendix B of the FEA for a full conservation activities within the final
affects activities conducted, funded, or discussion of potential economic critical habitat designation are not
permitted by Federal agencies. Some impacts to small entities). expected. Therefore, this action is not a
kinds of activities are unlikely to have Transportation projects that are significant energy action, and no
any Federal involvement and so will not reasonably foreseeable within the 20- Statement of Energy Effects is required.
be affected by critical habitat year analysis period are not anticipated
designation. In areas where the species to impact areas within designated Unfunded Mandates Reform Act
is present, Federal agencies already are critical habitat and were not considered. In accordance with the Unfunded
required to consult with us under In summary, we have considered Mandates Reform Act (2 U.S.C. 1501 et
section 7 of the Act on activities they whether this designation would result seq.), we make the following findings:
fund, permit, or implement that may in a significant economic effect on a (a) This rule will not produce a
affect Berberis nevinii (see Section 7 substantial number of small entities. Federal mandate. In general, a Federal
mandate is a provision in legislation, shift the costs of the large entitlement private lands from this final designation
statute, or regulation that would impose programs listed above onto State (please refer to the Public Comments
an enforceable duty upon State, local, or governments. section of this final rule for a detailed
Tribal governments, or the private (b) We do not believe that this rule discussion of this comment and our
sector, and includes both ‘‘Federal will significantly or uniquely affect response).
intergovernmental mandates’’ and small governments because it will not The entire designated critical habitat
‘‘Federal private sector mandates.’’ produce a Federal mandate of $100 is owned and managed by the Federal
These terms are defined in 2 U.S.C. million or greater in any year, that is, it government and, therefore, is unlikely
658(5)–(7). ‘‘Federal intergovernmental is not a ‘‘significant regulatory action’’ to have any incremental impact on State
mandate’’ includes a regulation that under the Unfunded Mandates Reform and local governments and their
‘‘would impose an enforceable duty Act. Furthermore, all lands designated activities. The designation may have
upon State, local, or [T]ribal as critical habitat in this rule are some benefit to these governments
governments’’ with two exceptions. It managed by BLM and USFS, which are because the areas that contain the
excludes ‘‘a condition of Federal not considered small entities or small physical and biological features
assistance.’’ It also excludes ‘‘a duty governments. The designation of critical essential to the conservation of the
arising from participation in a voluntary habitat imposes no obligations on State species are more clearly defined, and
Federal program,’’ unless the regulation or local governments. As such, a Small the PCEs necessary to support the life
‘‘relates to a then-existing Federal Government Agency Plan is not processes of the species are specifically
program under which $500,000,000 or required. identified. This information does not
more is provided annually to State, Takings alter where and what federally
local, and [T]ribal governments under sponsored activities may occur.
In accordance with E.O. 12630 However, it may assist local
entitlement authority,’’ if the provision
(Government Actions and Interference governments in long-range planning
would ‘‘increase the stringency of
with Constitutionally Protected Private (rather than having them wait for case-
conditions of assistance’’ or ‘‘place caps
Property Rights), we have analyzed the by-case section 7 consultations to
upon, or otherwise decrease, the Federal
potential takings implications of occur).
Government’s responsibility to provide
designating approximately 6 ac (3 ha) of
funding,’’ and the State, local, or Tribal Civil Justice Reform
lands in Riverside County, California, as
governments ‘‘lack authority’’ to adjust
critical habitat for Berberis nevinii in a In accordance with E.O. 12988 (Civil
accordingly. At the time of enactment,
takings implications assessment. The Justice Reform), the Office of the
these entitlement programs were:
takings implications assessment Solicitor has determined that the rule
Medicaid; AFDC work programs; Child concludes that this final designation of
Nutrition; Food Stamps; Social Services does not unduly burden the judicial
critical habitat does not pose significant system and that it meets the
Block Grants; Vocational Rehabilitation takings implications for lands within or
State Grants; Foster Care, Adoption requirements of sections 3(a) and 3(b)(2)
affected by the designation. of the Order. We are designating critical
Assistance, and Independent Living;
Family Support Welfare Services; and Federalism habitat in accordance with the
Child Support Enforcement. ‘‘Federal provisions of the Act. This final rule
In accordance with E.O. 13132 uses standard property descriptions and
private sector mandate’’ includes a (Federalism), this final rule does not
regulation that ‘‘would impose an identifies the physical and biological
have significant Federalism effects. A features essential to the conservation of
enforceable duty upon the private Federalism assessment is not required.
sector, except (i) a condition of Federal the species within the designated areas
In keeping with Department of the to assist the public in understanding the
assistance or (ii) a duty arising from Interior and Department of Commerce
participation in a voluntary Federal habitat needs of Berberis nevinii.
policy, we requested information from,
program.’’ and coordinated development of, this Paperwork Reduction Act of 1995
The designation of critical habitat final critical habitat designation with This rule does not contain any new
does not impose a legally binding duty appropriate State resource agencies in collections of information that require
on non-Federal Government entities or California. We received one comment approval by OMB under the Paperwork
private parties. Under the Act, the only from a local agency during the public Reduction Act of 1995 (44 U.S.C. 3501
regulatory effect is that Federal agencies comment period for the proposed et seq.). This rule will not impose
must ensure that their actions do not critical habitat rule. This commenter recordkeeping or reporting requirements
destroy or adversely modify critical supported the proposed exclusion of on State or local governments,
habitat under section 7. While non- private lands within the boundaries of individuals, businesses, or
Federal entities that receive Federal the Western Riverside County MSHCP organizations. An agency may not
funding, assistance, or permits, or that plan area from the designation of final conduct or sponsor, and a person is not
otherwise require approval or critical habitat, but was concerned that required to respond to, a collection of
authorization from a Federal agency for this area could still be included in the information unless it displays a
an action, may be indirectly impacted final designation if the Secretary currently valid OMB control number.
by the designation of critical habitat, the determined that the benefits of
legally binding duty to avoid including these lands outweigh the National Environmental Policy Act
destruction or adverse modification of benefits of excluding them. We have It is our position that, outside the
critical habitat rests squarely on the determined that the benefits of jurisdiction of the Circuit Court of the
Federal agency. Furthermore, to the excluding these private lands covered United States for the Tenth Circuit, we
extent that non-Federal entities are by the Western Riverside County do not need to prepare environmental
indirectly impacted because they MSHCP outweigh the benefits of analyses as defined by NEPA (42 U.S.C.
receive Federal assistance or participate designating critical habitat in these 4321 et seq.) in connection with
in a voluntary Federal aid program, the areas, and that this exclusion will not designating critical habitat under the
Unfunded Mandates Reform Act would result in the extinction of Berberis Act. We published a notice outlining
not apply, nor would critical habitat nevinii; therefore, we have excluded all our reasons for this determination in the
Federal Register on October 25, 1983 with Tribes in developing programs for List of Subjects in 50 CFR Part 17
(48 FR 49244). This assertion was healthy ecosystems, to acknowledge that Endangered and threatened species,
upheld by the Circuit Court of the Tribal lands are not subject to the same Exports, Imports, Reporting and
United States for the Ninth Circuit controls as Federal public lands, to recordkeeping requirements,
(Douglas County v. Babbitt, 48 F.3d remain sensitive to Indian culture, and Transportation.
1495 (9th Cir. 1995), cert. denied 516 to make information available to Tribes.
U.S. 1042 (1996)). We have determined that there are no Regulation Promulgation
Government-to-Government Tribal lands that meet the definition of Accordingly, we amend part 17,
Relationship With Tribes critical habitat for Berberis nevinii. subchapter B of chapter I, title 50 of the
Therefore, we have not designated Code of Federal Regulations, as set forth
In accordance with the President’s critical habitat for B. nevinii on Tribal below:
memorandum of April 29, 1994, lands.
Government-to-Government Relations PART 17—[AMENDED]
with Native American Tribal References Cited
Governments (59 FR 22951), E.O. 13175, ■ 1. The authority citation for part 17
A complete list of all references cited continues to read as follows:
and the Department of the Interior’s
manual at 512 DM 2, we readily in this rulemaking is available on the Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
acknowledge our responsibility to Internet at http://www.regulations.gov 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
communicate meaningfully with and http://www.fws.gov/carlsbad/. 625, 100 Stat. 3500; unless otherwise noted.
recognized Federal Tribes on a Author(s) ■ 2. In § 17.12(h), revise the entry for
government-to-government basis. In ‘‘Berberis nevinii’’ under ‘‘FLOWERING
accordance with Secretarial Order 3206 The primary authors of this PLANTS’’ in the List of Endangered and
of June 5, 1997 (American Indian Tribal rulemaking are staff of the Nevada Fish Threatened Plants to read as follows:
Rights, Federal Tribal Trust and Wildlife Office, Reno, Nevada, and
Responsibilities, and the Endangered the Carlsbad Fish and Wildlife Office, § 17.12 Endangered and threatened plants.
Species Act), we readily acknowledge Carlsbad, California. * * * * *
our responsibilities to work directly (h) * * *
Species When Critical Special

Historical range Family Status listed habitat rules
Scientific name Common name
FLOWERING PLANTS
* * * * * * *
Berberis nevinii ............ Nevin’s barberry ......... U.S.A. (CA) ................ Berberidaceae ............ E ....... 648 17.96(a).
* * * * * * *
■ 3. Amend § 17.96(a) as follows: (ii) Well-drained alluvial soils base of USGS 1:24,000 maps and critical
■ a. Add ‘‘Family Berberidaceae’’ in primarily of non-marine sedimentary habitat units were then mapped using a
alphabetical order of the family names; origin, such as Temecula or sandy 100-meter grid to establish Universal
and arkose soils; soils of the Cajalco- Transverse Mercator (UTM) North
■ b. Add a critical habitat entry for Temescal-Las Posas soil association American Datum 1927 (NAD 27)
‘‘Berberis nevinii (Nevin’s barberry)’’ formed on gabbro (igneous) or latite coordinates which, when connected,
under Family Berberidaceae to read as (volcanic) bedrock; metasedimentary provided the boundaries of the unit. All
set forth below. substrates associated with springs or acreage calculations were performed
seeps; and heavy adobe/gabbro-type using GIS.
§ 17.96 Critical habitat—plants. soils derived from metavolcanic geology (5) Unit 1: Agua Tibia/Vail Lake Unit,
(a) Flowering plants. (Mesozoic basic intrusive rock) that Riverside County, California.
provide the appropriate nutrients and (i) Subunit 1A: Big Oak Mountain
* * * * *
space for growth and reproduction; and Summit. From USGS 1:24,000
Family Berberidaceae: Berberis (iii) Scrub (chaparral, coastal sage, quadrangle Sage, lands bounded by the
nevinii (Nevin’s barberry) alluvial, riparian) and woodland (oak, following UTM NAD27 coordinates (E,
(1) Critical habitat is depicted for riparian) vegetation communities N): 502153, 3708505; 502157, 3708510;
Riverside County, California, in the text between 900 and 3,000 feet (275 and 502167, 3708519; 502179, 3708526;
and on the map below. 915 meters) in elevation that provide the 502192, 3708532; 502205, 3708534;
(2) The primary constituent elements appropriate cover for growth and 502219, 3708535; 502233, 3708533;
of critical habitat for Berberis nevinii are reproduction. 502246, 3708528; 502258, 3708522;
the habitat components that provide: (3) Critical habitat does not include 502269, 3708513; 502278, 3708503;
(i) Low-gradient (i.e., nearly flat) manmade structures (such as buildings, 502286, 3708491; 502291, 3708478;
canyon floors, washes and adjacent aqueducts, runways, roads, and other 502294, 3708465; 502294, 3708451;
terraces, and mountain ridge/summits, paved areas) and the land on which they 502292, 3708437; 502288, 3708424;
or eroded, generally northeast to are located existing within the legal 502281, 3708412; 502272, 3708401;
northwest-facing mountain slopes and boundaries on the effective date of this 502262, 3708392; 502250, 3708384;
banks of dry washes typically of less rule. 502237, 3708379; 502224, 3708376;
than 70 percent slope that provide space (4) Critical habitat map. Data layers 502210, 3708376; 502196, 3708378;
for plant establishment and growth; defining map units were created on a 502183, 3708382; 502171, 3708389;
502160, 3708398; 502151, 3708408; (ii) Subunit 1B: Agua Tibia Mountain 3702800; thence returning to 504200,
502143, 3708420; 502138, 3708432; Foothills. From USGS 1:24,000 3702900.
502135, 3708446; 502135, 3708460; quadrangle Vail Lake, lands bounded by (iii) Note: Map of Unit 1 follows:
502137, 3708474; 502141, 3708487; the following UTM NAD27 coordinates
502148, 3708499; 502153, 3708505; (E, N): 504200, 3702900; 504300,
thence returning to 502153, 3708505. 3702900; 504300, 3702800; 504200,
ER13FE08.000</GPH>
BILLING CODE 4310–55–C Dated: January 31, 2008.

* * * * * Lyle Laverty,
Assistant Secretary for Fish and Wildlife and
Parks.
[FR Doc. 08–523 Filed 1–12–08; 8:45 am]
BILLING CODE 4310–55–P

Rule: Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat&#8212 Nevin's Barberry

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Rule: Endangered and Threatened Wildlife and Plants: Designation of Critical Habitat&#8212 Nevin's Barberry

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Wednesday,

February 13, 2008

chaparral/shrublands to nonnative or eroded, generally northeast- to modification, degradation, or

features essential to the conservation of criteria discussed below. We published species.

Land meeting the Land excluded

Unit 1. Agua Tibia/Vail Lake:

Species When Critical Special

BILLING CODE 4310–55–C Dated: January 31, 2008.

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