65662 Federal Register / Vol. 71, No. 216 / Wednesday, November 8, 2006 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

RIN 1018–AT92 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Monardella linoides ssp. 

viminea (Willowy Monardella) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for 

Monardella linoides ssp. viminea 

(willowy monardella) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

73 acres (ac) (30 hectares (ha)) fall 

within the boundaries of the critical 

habitat, all in San Diego County, 

California. 

DATES: This rule becomes effective on 

December 8, 2006. 

ADDRESSES: Comments and materials 

received, as well as supporting 

documentation used in the preparation 

of this final rule, will be available for 

public inspection, by appointment, 

during normal business hours, at the 

Carlsbad Fish and Wildlife Office, 6010 

Hidden Valley Road, Carlsbad, CA 

92011 (telephone 760–431–9440). The 

final rule, economic analysis, and map 

of critical habitat will also be available 

via the Internet at http://www.fws.gov/ 

carlsbad/. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, Carlsbad Fish 

and Wildlife Office (telephone 760– 

431–9440; facsimile 760–431–9624). 

SUPPLEMENTARY INFORMATION: 

Role of Critical Habitat in Actual 

Practice of Administering and 

Implementing the Act 

Attention to and protection of habitat 

is paramount to successful conservation 

actions. The role that designation of 

critical habitat plays in protecting 

habitat of listed species, however, is 

often misunderstood. As discussed in 

more detail below in the discussion of 

exclusions under section 4(b)(2) of the 

Act, there are significant limitations on 

the regulatory effect of designation 

under section 7(a)(2) of the Act. In brief, 

(1) designation provides additional 

protection to habitat only where there is 

a Federal nexus; (2) the protection is 

relevant only when, in the absence of 

designation, destruction or adverse 

modification of the critical habitat 

would in fact take place (in other words, 

other statutory or regulatory protections, 

policies, or other factors relevant to 

agency decision-making would not 

prevent the destruction or adverse 

modification); and (3) designation of 

critical habitat triggers the prohibition 

of destruction or adverse modification 

of that habitat, but it does not require 

specific actions to restore or improve 

habitat. 

Currently, only 475 species, or 36 

percent of the 1,310 listed species in the 

United States under the jurisdiction of 

the Service, have designated critical 

habitat. We address the habitat needs of 

all 1,310 listed species through 

conservation mechanisms such as 

listing, section 7 consultations, the 

Section 4 recovery planning process, the 

Section 9 protective prohibitions of 

unauthorized take, Section 6 funding to 

the States, the Section 10 incidental take 

permit process, and cooperative, 

nonregulatory efforts with private 

landowners. The Service believes that it 

is these measures that may make the 

difference between extinction and 

survival for many species. 

In considering exclusions of areas 

originally proposed for designation, we 

evaluated the benefits of designation in 

light of Gifford Pinchot Task Force v. 

United States Fish and Wildlife Service 

(Gifford Pinchot). In that case, the Ninth 

Circuit invalidated the Service’s 

regulation defining ‘‘destruction or 

adverse modification of critical habitat’’. 

In response, on December 9, 2004, the 

Director issued guidance to be 

considered in making section 7 adverse 

modification determinations. This 

critical habitat designation does not use 

the invalidated regulation in our 

consideration of the benefits of 

including areas in this final designation. 

The Service will carefully manage 

future consultations that analyze 

impacts to designated critical habitat, 

particularly those that appear to be 

resulting in an adverse modification 

determination. Such consultations will 

be reviewed by the Regional Office prior 

to finalizing to ensure that an adequate 

analysis has been conducted that is 

informed by the Director’s guidance. 

On the other hand, to the extent that 

designation of critical habitat provides 

protection, that protection can come at 

significant social and economic cost. In 

addition, the mere administrative 

process of designation of critical habitat 

is expensive, time-consuming, and 

controversial. The current statutory 

framework of critical habitat, combined 

with past judicial interpretations of the 

statute, make critical habitat the subject 

of excessive litigation. As a result, 

critical habitat designations are driven 

by litigation and courts rather than 

biology, and made at a time and under 

a timeframe that limits our ability to 

obtain and evaluate the scientific and 

other information required to make the 

designation most meaningful. 

In light of these circumstances, the 

Service believes that additional agency 

discretion would allow our focus to 

return to those actions that provide the 

greatest benefit to the species most in 

need of protection. 

Procedural and Resource Difficulties in 

Designating Critical Habitat 

We have been inundated with 

lawsuits for our failure to designate 

critical habitat, and we face a growing 

number of lawsuits challenging critical 

habitat determinations once they are 

made. These lawsuits have subjected the 

Service to an ever-increasing series of 

court orders and court-approved 

settlement agreements, compliance with 

which now consumes nearly the entire 

listing program budget. This leaves the 

Service with little ability to prioritize its 

activities to direct scarce listing 

resources to the listing program actions 

with the most biologically urgent 

species conservation needs. 

The consequence of the critical 

habitat litigation activity is that limited 

listing funds are used to defend active 

lawsuits, to respond to Notices of Intent 

(NOIs) to sue relative to critical habitat, 

and to comply with the growing number 

of adverse court orders. As a result, 

listing petition responses, the Service’s 

own proposals to list critically 

imperiled species, and final listing 

determinations on existing proposals are 

all significantly delayed. 

The accelerated schedules of courtordered designations have left the 

Service with limited ability to provide 

for public participation or to ensure a 

defect-free rulemaking process before 

making decisions on listing and critical 

habitat proposals, due to the risks 

associated with noncompliance with 

judicially imposed deadlines. This in 

turn fosters a second round of litigation 

in which those who fear adverse 

impacts from critical habitat 

designations challenge those 

designations. The cycle of litigation 

appears endless, and is very expensive, 

thus diverting resources from 

conservation actions that may provide 

relatively more benefit to imperiled 

species. 

The costs resulting from the 

designation include legal costs, the cost 

of preparation and publication of the 

designation, the analysis of the 

economic effects and the cost of 

requesting and responding to public 

comment, and in some cases the costs 


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of compliance with the National 

Environmental Policy Act (NEPA) (42 

U.S.C. 4321 et seq.). These costs, which 

are not required for many other 

conservation actions, directly reduce the 

funds available for direct and tangible 

conservation actions. 

Background 

In this document, it is our intent to 

discuss only those topics directly 

relevant to the development and 

designation of critical habitat or relevant 

information obtained since the final 

listing. For more information on the 

biology and ecology of Monardella 

linoides spp. viminea, refer to the final 

listing rule published in the Federal 

Register on October 13, 1998 (63 FR 

54938), and the proposed critical habitat 

rule published in the Federal Register 

on November 9, 2005 (70 FR 67956). 

Previous Federal Actions 

Previous Federal actions for 

Monardella linoides ssp. viminea can be 

found in the proposed critical habitat 

rule published on November 9, 2005 (70 

FR 67956). On September 26, 2001, a 

lawsuit was filed against the 

Department of the Interior (DOI) and the 

Service by the California Native Plant 

Society (CNPS) alleging, in part, that the 

Service improperly determined that 

designation of critical habitat for 

Monardella linoides ssp. viminea was 

not prudent (CNPS v. Norton, No. 01–

CV–1742IEG (JAH). The Service entered 

into a settlement agreement with the 

plaintiffs, under which we agreed to 

reconsider our ‘‘not prudent’’ finding, 

and, if prudent, publish a proposed 

critical habitat rule for M. l. ssp. viminea 

in the Federal Register on or before 

October 30, 2005, and publish a final 

critical habitat rule on or before 

October 30, 2006. The proposed rule 

was published November 9, 2005 (70 FR 

67956). This final rule complies with 

the June 2, 2003, settlement agreement. 

Summary of Comments and 

Recommendations 

We requested written comments from 

the public on the proposed designation 

of critical habitat for Monardella 

linoides ssp. viminea during two 

comment periods, one associated with 

the publication of the proposed critical 

habitat rule on November 9, 2005 (70 FR 

67956), and the second associated with 

the publication of a notice of availability 

for the draft economic analysis (DEA) of 

the proposed critical habitat 

designation, published in the Federal 

Register on June 1, 2006 (71 FR 31137). 

We contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule and the DEA. 

During the first comment period that 

opened on November 9, 2005, and 

closed on January 9, 2006, we received 

six comments directly addressing the 

proposed critical habitat designation, 

four from peer reviewers and two from 

organizations or individuals. We did not 

receive any requests for a public 

hearing. During the comment period 

that opened on June 1, 2006, and closed 

on July 3, 2006, we received one 

additional comment addressing the 

proposed critical habitat designation 

and/or the DEA. 

Overall, two commenters supported 

the designation of critical habitat for 

Monardella linoides spp. viminea and 

none opposed the designation. Five 

letters included comments or 

information, but did not express support 

or opposition to the proposed critical 

habitat designation. Comments received 

were grouped into general issue 

categories relating to the proposed 

critical habitat designation and the DEA 

and are addressed in the following 

summary and incorporated into the final 

rule as appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from six knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received responses from 

four peer reviewers. The peer reviewers 

generally disagreed with our decision 

not to treat the southern populations of 

the species as a separate subspecies, our 

decision to exempt areas from critical 

habitat under section 4(a)(3) of the Act, 

and our proposal to exclude areas from 

critical habitat under section 4(b)(2) of 

the Act. Additionally, peer reviewers 

provided information, clarifications, 

and suggestions to improve the final 

critical habitat rule, particularly the 

primary constituent elements (PCEs). 

We address peer reviewer comments in 

the following summary and 

incorporated them into the final rule as 

appropriate. 

We reviewed all comments received 

from the peer reviewers and the public 

for substantive issues and new 

information regarding critical habitat for 

the Monardella linoides spp. viminea, 

and we address them in the following 

summary. 

Peer Reviewer Comments 

(1) Comment: Three peer reviewers 

commented on the taxonomic 

identification of Monardella linoides 

spp. viminea. These comments 

emphasized that M. l. spp. viminea 

should be split into two species with the 

southern population designated as a 

new species, M. stoneana, based on 

Elvin and Sanders (2003). 

Our Response: We are aware of the 

taxonomic change and split proposed by 

Elvin and Sanders (2003). The Service 

evaluated this information and 

concluded that, although the authors 

may be correct in their assessment of 

these populations, they did not provide 

adequate supportive evidence in their 

paper (Bartel and Wallace 2004). We 

have concluded that, until a more 

comprehensive taxonomic paper is 

published that examines all of the 

relevant taxa or the genus Monardella at 

a broader scale, we will continue to use 

the taxonomic identification of 

Monardella linoides spp. viminea as 

identified in the final listing rule. 

(2) Comment: Three peer reviewers 

recommended that the Service analyze 

all canyons occupied by the species for 

inclusion as critical habitat, including 

the upper watershed portions of Unit 1 

(Sycamore Canyon), Unit 2 (Sycamore, 

West Sycamore, San Clemente Canyon, 

Rose, Elanus, and Spring Canyons), and 

Unit 4 (San Clemente Canyon), 

regardless of Service policy on 

exclusions and exemptions. 

Our Response: Section 4 of the Act 

requires that we designate critical 

habitat based on the best scientific or 

commercial information available. 

Therefore, all habitat known to be 

occupied and potentially occupied by 

the subspecies was analyzed to 

determine which areas may contain the 

features that are essential to the 

conservation of Monardella linoides 

spp. viminea. Habitat occupied at the 

time of listing may be included in 

critical habitat only if the essential 

features required by the species may 

require special management or 

protection. We do not include areas 

where existing management is sufficient 

to conserve the species. 

Section 4(b)(2) of the Act directs us to 

consider the economic impact, national 

security impact, and any other relevant 

impacts of specifying any particular area 

as critical habitat. An area may be 

excluded from critical habitat if it is 

determined that the benefits of 

exclusion outweigh the benefits of 

specifying a particular area as critical 

habitat, unless the failure to designate 

such an area as critical habitat will 

result in the extinction of the species. 

As discussed in the proposed rule (70 

FR 67956), we have determined that the 

benefits of excluding non-Federal lands 

covered by the San Diego Multiple 


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Species Conservation Plan (MSCP) 

outweigh the benefits of including nonFederal lands as critical habitat. We 

have included a more detailed analysis 

of the benefits of this habitat 

conservation plan (HCP) in this final 

rule under the Conservation 

Partnerships on Non-Federal Lands 

section below. 

Additionally, section 4(a)(3) of the 

Act prohibits the Service from 

designating as critical habitat any lands 

or other geographic areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an Integrated Natural 

Resources Management Plan (INRMP) 

prepared under Section 101 of the Sikes 

Act (16 U.S.C. 670a), if the Secretary of 

the Interior determines, in writing, that 

such plan provides a benefit to the 

species for which critical habitat is 

proposed for designation. As discussed 

in the proposed rule, the lands at 

Marine Corps Air Station (MCAS) 

Miramar are covered by an approved 

INRMP that identifies sensitive natural 

resources, including Monardella 

linoides spp. viminea, and imposes 

conservation requirements and 

monitoring and management actions to 

protect the species. Therefore, the 

INRMP provides a benefit to M. l. spp. 

viminea. For more information, see the 

Relationship of Critical Habitat to 

Military Lands—Application of Section 

4(a)(3) section below for a detailed 

discussion. 

(3) Comment: Three peer reviewers 

commented on the lack of primary 

constituent elements (PCEs) applying to 

Unit 7 (Marron Valley), Unit 8 (Otay 

Lakes), and Unit 9 (Cedar Canyon). 

Our Response: We appreciate the peer 

reviewers’ comments regarding the 

ecology of Units 7, 8, and 9 (Marron 

Valley, Otay Lakes, and Cedar Canyon, 

respectively), and have amended the 

information in the PCEs as they relate to 

Monardella linoides spp. viminea. 

Specifically, we added boulders, stones 

and cracks of bedrock in rocky gorges to 

describe the growing substrate needed 

for growth, reproduction, and dispersal 

in the southern range of M. l. spp. 

viminea. For more information see the 

Primary Constituent Elements section 

below. 

(4) Comment: One peer reviewer 

recommended the addition of 

‘‘unaltered ephemeral wash ecosystem 

with no development’’ to the PCEs. 

Our Response: PCE 2 includes 

ephemeral drainages as a habitat 

requirement for the subspecies. The 

importance of a natural hydrologic 

regime needed to maintain washes, 

sandbars, and rocky gorges where 

Monardella linoides ssp. viminea grows 

was also discussed in the Water and 

Physiological Requirements section of 

the proposed critical habitat rule (70 FR 

67956) and in the final listing rule (63 

FR 54938). 

(5) Comment: One peer reviewer 

recommended the addition of 

‘‘continuous ephemeral wash habitat 

between plants in the upper-most and 

lower-most reaches’’ to the list of PCEs. 

Our Response: The ephemeral wash 

habitat between known occurrences is 

important for the conservation of 

Monardella linoides ssp. viminea and 

was one of the criteria used to identify 

proposed critical habitat for this species. 

The importance of this area was also 

discussed in the Primary Constituent 

Elements section of the proposed rule. 

We appreciate the comment and have 

clarified this point in this final rule. For 

more information, see the Criteria Used 

To Identify Critical Habitat section 

below. 

(6) Comment: One peer reviewer 

recommended the addition of 

‘‘pollinators and sufficient habitat for 

pollinators to survive’’ to the list of 

PCEs. 

Our Response: As stated in the 

proposed critical habitat rule, we are 

unaware of any studies documenting 

specific pollinators of Monardella 

linoides ssp. viminea. We did not 

determine the area needed to maintain 

pollinators to be essential in the 

proposed or this final critical habitat 

designation. 

(7) Comment: One peer reviewer 

commented that part of Unit 2 (San 

Clemente Canyon part of the Sycamore, 

West Sycamore, San Clemente Canyon, 

Rose, Elanus, and Spring Canyons), 

below I–15, might not be essential 

habitat because the canyon is now a 

perennial stream due to alterations in 

the hydrological system. 

Our Response: According to recent 

survey information, the stream flowing 

through this canyon still functions as an 

ephemeral stream, although the ground 

water may be higher in this area than 

other locations along the stream. 

Occurrences in this part of Unit 2 were 

present at the last survey in 2002 

(Kassebaum, 2006, p. 3). 

(8) Comment: One peer reviewer 

recommended that the Service 

renegotiate with the plaintiffs to 

produce a new proposed designation of 

critical habitat that splits Monardella 

linoides spp. viminea into two species 

and have peer review occur earlier in 

the proposal stage. 

Our Response: We believe we used 

the best available information in the 

development of the proposed critical 

habitat rule. With the exception of 

comments received regarding the 

taxonomic identification of the southern 

population of Monardella linoides spp. 

viminea (see our response to comment 

#1), we did not receive information 

during the comment periods to suggest 

that the information used in the 

development of the proposal was 

flawed. Since the Service continues to 

recognize the taxonomic identification 

of M. l. spp. viminea as presented in the 

final listing rule, the areas we 

determined to be essential to the 

conservation of the subspecies would 

have been the same as those outlined in 

the proposed critical habitat rule, 

regardless of the taxonomic issue. 

(9) Comment: One peer reviewer 

commented that the Service should 

recheck data for Elanus Canyon, because 

the INRMP indicates that the subspecies 

does not occur in this canyon. 

Our Response: We received no 

information to refute the INRMP. 

Comments received in response to 

publication of the proposed critical 

habitat rule from MCAS Miramar 

(Pharris 2006, p. 1) indicate that the 

information in their INRMP regarding 

occupied habitat on their land is up-todate and correct, including information 

that the species occurs in Elanus 

Canyon. 

(10) Comment: One peer reviewer 

provided additional information on the 

benefits of the MCAS Miramar’s INRMP. 

Besides Monardella linoides spp. 

viminea being managed under a level II 

conservation effort, MCAS Miramar has 

developed a long-term monitoring plan 

including monitoring and a habitat 

enhancement project to be initiated in 

2006. 

Our Response: We appreciate the 

additional information regarding MCAS 

Miramar’s ongoing management and 

monitoring actions for the subspecies 

and have included the new information 

in this final rule. For more information 

see the Relationship of Military Lands to 

Critical Habitat—Application of Section 

4(a)(3) section below. 

(11) Comment: One peer reviewer 

commented that the source reference for 

survey data on lands owned by the City 

of San Diego and under private 

ownership outlined in Table 1 of the 

proposed rule was incorrectly 

referenced to GIS data from MCAS 

Miramar. 

Our Response: We appreciate the 

correction and have provided the 

corrected citations. Private lands in 

Sycamore Canyon (pre-2000), City of 

San Diego lands in the West Sycamore 

Canyon (pre-2000), and State lands in 

Otay Lakes (2000) had incorrect 

references to the GIS layer provided by 

MCAS (no date). The correct references 

are CNDDB (2005) for the private lands 


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in Sycamore Canyon (pre-2000), and 

GIS layer from the Service (2000) for the 

City of San Diego lands in the West 

Sycamore Canyon (pre-2000) and State 

lands in Otay Lakes (2000). 

(12) Comment: One peer reviewer 

recommended that the Service review 

current California Department of Fish 

and Game Natural Diversity Database 

(CNDDB) and herbarium specimens at 

Rancho Santa Ana Botanic Garden, 

University of California (UC)-Riverside, 

UC-Irvine, and the San Diego Natural 

History Museum to identify any 

additional occurrences before finalizing 

critical habitat boundaries. 

Our Response: We reviewed the most 

current CNDDB records (2006) and 

herbarium specimens from the four 

organizations listed above and found 

four new or expanded records for this 

species that were submitted to CNDDB 

after the publication of the proposed 

rule (70 FR 67956). These records were 

recorded for Monardella stoneana 

(occurrence numbers 1, 2, 7, and 9), 

which we consider as Monardella 

linoides spp. viminea (see response to 

comment #1). Each of the four new 

occurrences are within areas identified 

as habitat essential for the conservation 

of M. l. spp. viminea in the proposed 

rule. Therefore, this new information 

does not change the final critical habitat 

designation. 

(13) Comment: One peer reviewer 

commented that the final rule should 

clearly state that the consequence of the 

Gifford Pinchot decision reflects the 

Director of the Service’s guidance and 

that this guidance should be spelled out 

clearly. 

Our Response: The Service has 

provided clarification of the 

consequence of the Gifford Pinchot 

decision in this final rule. For more 

information, see Application of the 

Jeopardy and Adverse Modification 

Standards for Actions Involving Effects 

to Monardella linoides spp. viminea and 

Its Critical Habitat section below. 

(14) Comment: One peer reviewer 

recommended deleting paragraphs that 

describe section 3(5)(A) of the Act since 

that section is not applicable to the rule. 

Our Response: We have not included 

the paragraphs describing section 

3(5)(A) of the Act in this final rule 

because no habitat was determined not 

to meet the definition of critical habitat 

under section 3(5)(A) of the Act. 

(15) Comment: One peer reviewer 

recommended that the explanation of 

the new Section 4(a)(3)(b) should quote 

the statute instead of paraphrasing, and 

should explain what constitutes a 

‘‘benefit’’ under the law or Service 

guidelines. 

Our Response: In this final rule, we 

quote the statute and provide 

clarification of what constitutes a 

benefit under section 4(a)(3)(b) (see 

section titled Relationship of Military 

Lands to Critical Habitat—Application 

of Section 4(a)(3)). As stated below, 

MCAS Miramar’s INRMP will benefit 

the species by providing species 

management under a level II 

conservation effort that includes 

avoiding or minimizing the effect of 

planning action on endangered species 

and wetlands. In addition to the stationwide population census, MCAS 

Miramar has a long-term monitoring 

plan in place, and has planned a habitat 

enhancement project to be implemented 

in 2006. 

(16) Comment: One peer reviewer 

commented that the Service has not 

made a clear statement about the 

determination of habitat being exempted 

on MCAS Miramar. The Service has 

shown a benefit, because the core of the 

northern population is located on the 

base, but the Service should show that 

Monardella linoides spp. viminea is 

adequately protected. 

Our Response: We believe the level II 

conservation effort adequately protects 

the subspecies. Additionally, the MCAS 

Miramar conducts a station-wide 

population census under a long-term 

monitoring plan and has initiated a 

habitat enhancement project that will 

benefit the species. Refer to section 

entitled Relationship of Military Lands 

to Critical Habitat—Application of 

Section 4(a)(3) for more information on 

this exemption. 

(17) Comment: One peer reviewer 

recommended adding a summary table 

that shows acres of occupied habitat 

broken down by acres protected, 

planned for protection, and acres not 

targeted for protection. 

Our Response: A summary table 

outlining this information is provided in 

Table 1 of the draft economic analysis 

(DEA) of the proposed critical habitat 

designation for willowy monardella 

(CRA International 2006). In this final 

rule, we have provided acreages for 

occupied areas exempted from proposed 

critical habitat and excluded from final 

critical habitat based on benefits 

provided by MCAS Miramar’s IRNMP, 

the San Diego County MSCP, and the 

Bureau of Land Management’s (BLM) 

Otay Mountain wilderness designation. 

For more information, see Relationship 

of Military Lands to Critical Habitat—

Application of Section 4(a)(3) section 

below for a detailed discussion. 

(18) Comment: One peer reviewer 

commented that our conclusion that 

‘‘any management plan will almost 

always provide more benefit than the 

critical habitat designation’’ is not 

reasonable. 

Our Response: As stated in the 

Supplementary Information section of 

the proposed critical habitat rule, 

section 7(a)(2) of the Act limits adverse 

effects to the species either through 

jeopardy or destruction or adverse 

modification of its habitat where there 

is a Federal nexus. It does not affect 

purely State or private actions on State 

or private land, nor does it require 

positive habitat improvements or 

enhancement of the species’ status. 

Thus, the Service believes that any 

management plan that has enhancement 

or recovery as the management standard 

will almost always provide more benefit 

than the designation of critical habitat. 

(19) Comment: One peer reviewer 

commented that the Service and BLM 

should work together to prepare a fire 

suppression plan for the wilderness area 

(Otay Mountain) that would minimize 

the likelihood of fire suppression 

activities destroying plants. The peer 

reviewer also recommended adding a 

discussion of how designation of critical 

habitat could help accomplish the 

development of such a plan. 

Our Response: The Service agrees that 

development of a fire suppression plan 

could minimize impacts to Monardella 

linoides spp. viminea plants and other 

sensitive species and their habitats, and 

looks forward to working with BLM to 

prepare a fire suppression plan for the 

wilderness area (Otay Mountain). 

Because occupied habitat for M. l. spp. 

viminea on Otay Mountain is well 

known to BLM, designation of critical 

habitat would not appreciably improve 

identification of the species and its 

habitat. Moreover, the designation of 

critical habitat would not impose any 

requirement on BLM to develop a fire 

suppression plan. The Service will 

carefully consider the impacts of fire 

suppression plans on the species and its 

habitat on Otay Mountain in future 

consultations with BLM under section 7 

of the Act. 

Public Comments Related to 

Distribution and Status 

(20) Comment: One commenter 

indicated that Monardella linoides ssp. 

viminea still occurs in Carroll Canyon, 

because the Environmental Impact 

Report for the Carroll Canyon Business 

Park states that not all plants were to be 

removed. The commenter also thought 

that harvested plants from Carroll 

Canyon were going to be planted back 

to Rose Canyon in addition to other 

options, but not at Lopez Canyon 

because that canyon already had its own 

source of local plants, grown from seed, 

which are being re-established. 


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Our Response: The Service’s 

biological opinion for the Carroll 

Canyon Business Park states that all 

plants, estimated to total 122 in number, 

would be removed from Carroll Canyon, 

and that these plants should be 

considered for transplantation to Lopez 

Canyon (USFWS 2003, pp. 7 and 8). 

Rose Canyon was not part of the 

proposed action for the Carroll Canyon 

Business Park consultation. The final 

sites for transplantation will depend on 

the outcome of genetic testing currently 

underway (USFWS 2003, p. 7). 

(21) Comment: One commenter 

indicated that Murphy Canyon may still 

have Monardella linoides ssp. viminea 

outside of MCAS Miramar. 

Our Response: As stated in the 

proposed rule, we are aware of only two 

documented occurrences of the 

subspecies in Murphy Canyon, both 

located on MCAS Miramar (CNDDB 

1997, occurrence numbers 15 and 30; 

CNDDB 2001, occurrence numbers 15 

and 30). However, the subspecies has 

not been documented there since 2002, 

and is believed to have been extirpated 

(Kassebaum 2005). 

(22) Comment: One commenter 

indicated that Cemetery Canyon 

contains suitable habitat, and it should 

be designated as unoccupied critical 

habitat. 

Our Response: Monardella linoides 

spp. viminea is believed to have been 

extirpated from Cemetery Canyon prior 

to the species’ listing in 1998 (CNDDB 

2001, occurrence number 3; Elvin and 

Sanders 2003, p. 428). This site is 

documented as having an altered 

drainage pattern (CNDDB 2001), and is, 

therefore, unlikely to contain the PCEs 

required by this species. Thus, Cemetery 

Canyon is not considered to have 

habitat with features essential to the 

conservation of this subspecies. 

Additionally, we feel there is sufficient 

habitat designated for critical habitat 

without designating Cemetery Canyon; 

the habitat of all known populations is 

already protected or will be designated 

as critical habitat. 

(23) Comment: One commenter 

suggested that overgrazing, not fire, may 

have caused the loss of Monardella 

linoides ssp. viminea in the vicinity of 

Otay Lake. 

Our Response: The statement in the 

proposed critical habitat rule regarding 

the fire at Otay Lake was intended to 

demonstrate that, although severe fire 

could be detrimental to the plant, 

Monardella linoides spp. viminea is 

adapted to fire and survey observations 

support this (City 2004). We do not have 

any information to suggest that 

overgrazing may have caused the loss of 

the subspecies in the vicinity of Otay 

Lake. 

(24) Comment: One commenter 

suggested that hydrology changes and 

lack of weed management caused the 

decline of Monardella linoides spp. 

viminea observed in Sycamore Canyon, 

rather than drought as mentioned in the 

proposed rule. 

Our Response: The statement in the 

proposed critical habitat rule that 

drought may have contributed to the 

subspecies’ decline in Sycamore Canyon 

is based on survey reports written by the 

City of San Diego (City). According to 

these reports, observations from the 

yearly surveys suggest that rainfall 

patterns have influenced the population 

at Sycamore Canyon (City 2002, p. 3; 

City 2003, p. 3; City 2004, p. 3). 

Observations included other sites, but 

the greatest numbers of dormant or dead 

plants were found at the Sycamore 

Canyon survey site in 2002. While 

changes in hydrology or lack of weed 

management may have affected the 

species in Sycamore Canyon, the survey 

reports did not contain any information 

relating the subspecies’ decline to these 

potential impacts. 

(25) Comment: Three commenters 

suggested that Monardella linoides spp. 

viminea should be split into two species 

with the southern population being 

designated as a new species, based on 

Elvin and Sanders (2003). 

Our Response: Please refer to our 

response to comment # 1. 

Public Comments Related to Protection 

Provided by Critical Habitat 

(26) Comment: One commenter 

disagreed with the statement that 

designating critical habitat provides 

little additional protection to species, 

based on an article in BioScience 

(Taylor et al. 2005, pp. 360–367) that 

indicates otherwise. 

Our Response: As discussed in the 

Supplementary Information section and 

other sections of this rule, we believe 

that, in most cases, various conservation 

mechanisms provide greater incentives 

and conservation benefits than does the 

designation of critical habitat. These 

include the section 4 recovery planning 

process, section 6 funding to the States, 

and cooperative programs with private 

and public landholders and Tribal 

nations. Critical habitat designation can 

provide an additional level of species 

protection by focusing specifically on 

the impacts to habitat loss, and can 

address cumulative effects of habitat 

loss in certain circumstances, but this 

protection can only be provided if there 

is a Federal nexus for agencies that are 

planning actions that may impact the 

designated critical habitat. It is our 

experience that landowners generally 

react negatively to having their property 

designated as critical habitat, and they 

are less inclined to cooperate in the 

conservation of the species in question 

as a consequence. Conversely, 

cooperative conservation efforts in the 

absence of critical habitat often provide 

greater conservation benefits to the 

species. 

Comments Related to Exclusions and 

Exemptions From Critical Habitat 

(27) Comment: One commenter stated 

that critical habitat should be 

designated on all extant populations 

regardless of an existing HCP or INRMP. 

Additionally, the commenter stated that 

INRMPs do not provide adequate 

protection since political pressure can 

allow impacts that are not anticipated. 

Our Response: Refer to our responses 

to comments #2, #10, and #15. Our 

experience under the MCAS Miramar 

INRMP is that the Marine Corps has 

demonstrated a continuing commitment 

to implement the plan. 

Summary of Changes From Proposed 

Rule 

In preparing the final critical habitat 

designation for Monardella linoides spp. 

viminea, we reviewed and considered 

comments from peer reviewers and the 

public on the proposed designation of 

critical habitat published on November 

9, 2005 (70 FR 67956), as well as public 

comments on the DEA published on 

June 1, 2006 (71 FR 31137). As a result 

of comments received on the proposed 

rule and the DEA, and a reevaluation of 

the proposed critical habitat boundaries, 

we made changes to our proposed 

designation, as follows: 

(1) The PCEs were modified to 

include the range in variability of 

habitat for all known populations of 

Monardella linoides spp. viminea. The 

modifications in this final rule include 

adding a description of habitat with 

essential features in the southern 

portion of the range of M. l. spp. 

viminea to the sections entitled Space 

for Individual and Population Growth 

and Normal Behavior, Water and 

Physiological Requirements, and 

Primary Constituents for Monardella 

linoides spp. viminea. PCE 1 was 

revised to include boulders and stones 

and cracks of bedrock in rocky gorges to 

describe the growing substrate needed 

for growth, reproduction, and dispersal 

of M. l. spp. viminea in the southern 

portion of its range. PCE 2 was revised 

to include rocky gorges to describe the 

drainages needed to maintain the 

necessary dynamic habitat processes for 

the southern range of M. l. spp. viminea. 

PCE 3 was revised to include the 


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chaparral habitat type to describe the 

adjacent habitat that allows for adequate 

sunlight for nutrient uptake for 

photosynthesis in the southern range of 

M. l. spp. viminea. 

(2) We re-evaluated areas determined 

to contain habitat with essential features 

in Unit 1 (Sycamore Canyon), and 

removed areas that did not contain the 

PCEs for the subspecies. These revisions 

resulted in the removal of the 1 ac of 

land owned by the Padre Dam 

Municipal Water District, and the 

removal of 42 ac (17 ha) of private land, 

reducing the final critical habitat 

acreage for Unit 1 from 115 ac (47 ha) 

to 73 ac (30 ha). 

Critical Habitat 

Critical habitat is defined in section 3 

of the Act as—(i) The specific areas 

within the geographical area occupied 

by a species, at the time it is listed in 

accordance with the Act, on which are 

found those physical or biological 

features (I) essential to the conservation 

of the species and (II) that may require 

special management considerations or 

protection; and (ii) specific areas 

outside the geographical area occupied 

by a species at the time it is listed, upon 

a determination that such areas are 

essential for the conservation of the 

species. Conservation, as defined under 

section 3 of the Act means to use and 

the use of all methods and procedures 

which are necessary to bring any 

endangered species or threatened 

species to the point at which the 

measures provided pursuant to the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, and 

transplantation, and, in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot be otherwise relieved, may 

include regulated taking. Conservation 

is a process which contributes to 

improving the status of the species. 

Individual actions may still be 

considered conservation even though in 

and of themselves they do not remove 

the species’ need for protection under 

the Act. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against destruction or 

adverse modification of critical habitat 

with regard to actions carried out, 

funded, or authorized by a Federal 

agency. Section 7 requires consultation 

on Federal actions that are likely to 

result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat does not 

affect land ownership or establish a 

refuge, wilderness, reserve, preserve, or 

other conservation area. Such 

designation does not allow government 

or public access to private lands. 

Section 7 is a purely protective measure 

and does not require implementation of 

restoration, recovery, or enhancement 

measures. 

To be included in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time of listing must first 

have features that are essential to the 

conservation of the species. Critical 

habitat designations identify, to the 

extent known using the best scientific 

data available, habitat areas that provide 

essential life cycle needs of the species 

(i.e., areas on which are found the 

primary constituent elements, as 

defined at 50 CFR 424.12(b)). 

Habitat occupied at the time of listing 

may be included in critical habitat only 

if the essential features thereon may 

require special management or 

protection. Thus, we do not include 

areas where existing management is 

sufficient to conserve the species. (As 

discussed below, such areas may also be 

excluded from critical habitat pursuant 

to section 4(b)(2).) Areas outside of the 

geographic areas occupied by the 

species at the time of listing may be 

included in critical habitat only if we 

determine that such areas are essential 

for the conservation of the species. 

Accordingly, when the best available 

scientific data do not demonstrate that 

the conservation needs of the species 

require additional areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time of listing. An 

area currently occupied by the species 

but not known to be occupied at the 

time of listing will likely, but not 

always, be essential to the conservation 

of the species and, therefore, typically 

would be included in the critical habitat 

designation. 

The Service’s Policy on Information 

Standards Under the Endangered 

Species Act, published in the Federal 

Register on July 1, 1994 (59 FR 34271), 

and section 515 of the Treasury and 

General Government Appropriations 

Act for Fiscal Year 2001 (Pub. L. 106–

554; H.R. 5658) and the associated 

Information Quality Guidelines issued 

by the Service, provide criteria, 

establish procedures, and provide 

guidance to ensure that decisions made 

by the Service represent the best 

scientific data available. They require 

Service biologists to the extent 

consistent with the Act and with the use 

of the best scientific data available, to 

use primary and original sources of 

information as the basis for 

recommendations to designate critical 

habitat. When determining which areas 

are critical habitat, a primary source of 

information is generally the listing 

package for the species. Additional 

information sources include the 

recovery plan for the species, articles in 

peer-reviewed journals, conservation 

plans developed by States and counties, 

scientific status surveys and studies, 

biological assessments, or other 

unpublished materials and expert 

opinion or personal knowledge. All 

information is used in accordance with 

the provisions of section 515 of the 

Treasury and General Government 

Appropriations Act for Fiscal Year 2001 

(Pub. L. 106–554; H.R. 5658) and the 

associated Information Quality 

Guidelines issued by the Service. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific data available. Habitat 

is often dynamic, and species may move 

from one area to another over time. 

Furthermore, we recognize that 

designation of critical habitat may not 

include all of the habitat areas that may 

eventually be determined to be 

necessary for the recovery of the 

species. For these reasons, critical 

habitat designations do not signal that 

habitat outside the designation is 

unimportant or may not be required for 

recovery. 

Areas that support populations but 

are outside the critical habitat 

designation, will continue to be subject 

to conservation actions implemented 

under section 7(a)(1) of the Act and to 

the regulatory protections afforded by 

the section 7(a)(2) jeopardy standard, as 

determined on the basis of the best 

available information at the time of the 

action. Federally funded or permitted 

projects affecting listed species outside 

their designated critical habitat areas 

may still result in jeopardy findings in 

some cases. Similarly, critical habitat 

designations made on the basis of the 

best available information at the time of 

designation will not control the 

direction and substance of future 

recovery plans, habitat conservation 

plans, or other species conservation 

planning efforts if new information 

available to these planning efforts calls 

for a different outcome. 

Primary Constituent Elements 

In accordance with section 3(5)(A)(i) 

of the Act and regulations at 50 CFR 

424.12, in determining which areas to 

designate as critical habitat, we consider 

those physical or biological features 

(primary constituent elements, PCEs) 

that are essential to the conservation of 


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the species, and within areas occupied 

by the species at the time of listing that 

may require special management 

considerations or protection. These 

include, but are not limited to space for 

individual and population growth and 

for normal behavior; food, water, air, 

light, minerals, or other nutritional or 

physiological requirements; cover or 

shelter; sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and habitats that are protected 

from disturbance or are representative of 

the historic geographical and ecological 

distributions of a species. 

The known primary constituent 

elements required for Monardella 

linoides spp. viminea are derived from 

the biological needs of the M. l. spp. 

viminea as described below and in the 

proposed critical habitat designation 

published in the Federal Register on 

November 9, 2005 (70 FR 67956). 

Primary Constituent Elements for 

Monardella linoides spp. viminea 

Under our regulations, we are 

required to identify the known physical 

and biological features (PCEs) essential 

to the conservation of the Monardella 

linoides spp. viminea. All areas 

considered for designation as critical 

habitat for M. l. spp. viminea were 

within the geographical areas occupied 

by the species at the time it was listed 

and contain sufficient PCEs to support 

at least one life history function. 

Based on our current knowledge of 

the life history, biology, and ecology of 

the subspecies and the requirements of 

the habitat to sustain the essential life 

history functions of the subspecies, we 

have determined that the Monardella 

linoides spp. viminea’s PCEs are: 

(1) Coarse, rocky, sandy alluvium on 

benches, stabilized sandbars, channel 

banks, sandy washes, and/or among 

boulders and stones, and/or in cracks of 

bedrock in rocky gorges along and 

within the ephemeral drainages that 

provide space for growth, reproduction, 

and dispersal; 

(2) Ephemeral drainages where water 

flows only after peak seasonal rains and 

major flooding events that periodically 

scour riparian vegetation and 

redistribute alluvial material by eroding 

and developing stream channels, 

benches, sandbars, and rocky gorges, 

thus maintaining the necessary dynamic 

habitat processes for Monardella 

linoides spp. viminea; and 

(3) Coastal sage, riparian scrub, or 

chaparral with an open and semi-open 

canopy and little or no herbaceous 

understory situated along ephemeral 

drainages and adjacent floodplains to 

ensure that Monardella linoides spp. 

viminea receives adequate sunlight for 

nutrient uptake for photosynthesis. 

This designation is designed for the 

conservation of those areas containing 

PCEs necessary to support the life 

history functions that were the basis for 

the proposal. Because not all life history 

functions require all the PCEs, not all 

critical habitat will contain all the PCEs. 

Units are designated based on 

sufficient PCEs being present to support 

one or more of the species’ life history 

functions. Some units contain all PCEs 

and support multiple life processes, 

while some units contain only a portion 

of the PCEs necessary to support the 

species’ particular use of that habitat. 

Where a subset of the PCEs is present at 

the time of designation, this rule 

protects those PCEs and thus the 

conservation function of the habitat. 

Criteria Used To Identify Critical 

Habitat 

As required by section 4(b)(1)(A) of 

the Act, we use the best scientific data 

available in determining areas that 

contain the features that are essential to 

the conservation of Monardella linoides 

spp. viminea. This includes data in the 

final rule listing the species as 

endangered (published in the Federal 

Register on October 13, 1998 (63 FR 

54938)), reports submitted during 

section 7 consultations, research 

published in peer-reviewed articles and 

agency reports, and regional Geographic 

Information System (GIS) coverages. We 

have also reviewed available 

information that pertains to the habitat 

requirements of the subspecies. The 

material included data in reports 

submitted during section 7 

consultations; research published in 

peer-reviewed articles and agency 

reports; and regional Geographic 

Information System (GIS) coverages. We 

designated no areas outside the 

geographical area occupied by the 

species at the time of listing. 

We used the following criteria to 

identify habitat that contains the 

features essential to Monardella linoides 

spp. viminea: (1) Areas known to be 

occupied at the time of listing or known 

to be currently occupied; and (2) 

ephemeral washes and drainage areas 

associated with documented 

occurrences. 

When determining critical habitat 

boundaries, we made every effort to 

avoid including developed areas such as 

buildings, paved areas, and other 

structures that lack PCEs for the 

Monardella linoides spp. viminea 

within the boundaries of critical habitat. 

The scale of the maps prepared under 

the parameters for publication within 

the Code of Federal Regulations may not 

reflect the exclusion of such developed 

areas. Any such structures and the land 

under them inadvertently left inside 

critical habitat boundaries shown on the 

maps of this final rule have been 

excluded by text in the rule and are not 

designated as critical habitat. Therefore, 

Federal actions limited to these areas 

would not trigger section 7 consultation, 

unless they affect the species or adjacent 

critical habitat. 

We are designating critical habitat in 

areas that we determined were occupied 

at the time of listing, and that contain 

sufficient primary constituent elements 

(PCEs) to support life history functions 

essential for the conservation of the 

species. Lands were designated based 

on sufficient PCEs being present to 

support life processes of Monardella 

linoides spp. viminea. Some lands 

contain all PCEs and support multiple 

life processes. Some lands contain only 

a portion of the PCEs necessary to 

support M. l. spp. viminea’s particular 

use of that habitat. 

Section 10(a)(1)(B) of the Act 

authorizes us to issue permits for the 

take of listed animal species incidental 

to otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the species to minimize 

and mitigate the impacts of the 

requested incidental take. Often HCPs 

also incorporate conservation measures 

to benefit listed plant species although 

take of plant species is not prohibited 

under the Act. We often exclude nonFederal public lands and private lands 

that are covered by an existing operative 

HCP and executed implementation 

agreement (IA) under section 10(a)(1)(B) 

of the Act from designated critical 

habitat where we determine that the 

benefits of exclusion outweigh the 

benefits of inclusion as discussed in 

section 4(b)(2) of the Act. 

A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our supporting 

record for this rulemaking. 

Special Management Considerations or 

Protections 

When designating critical habitat, we 

assess whether the areas determined to 

be occupied at the time of listing that 

contain one or more PCEs may require 

special management considerations or 

protections. As stated in the final listing 

rule (63 FR 54938), threats to 

Monardella linoides ssp. viminea 

include habitat alteration resulting from 


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urban development, sand and gravel 

mining, human activities (i.e., off-road 

vehicle (ORV) use and trampling), and 

invasion of nonnative species. These 

activities could impact the PCEs 

determined to be essential for 

conservation of M. l. ssp. viminea, and 

thus require special management 

considerations or protections. 

Urban development and sand and 

gravel mining upstream of Monardella 

linoides ssp. viminea occurrences may 

alter the hydrologic regime needed to 

maintain the habitat characteristics 

required by M. l. ssp. viminea. 

Conversion of intermittent water flows 

to persistent water flows may increase 

scour and erode terraces and benches, 

washing away rooted plants and 

reducing available habitat (PCEs 1 and 

2). Kelly and Burrascano (2006, p. 4) 

attribute the disappearance of terraces 

in Lopez Canyon to increased erosion 

associated with urban runoff from 

upstream development. The use of 

pesticides or herbicides in residential 

and commercially landscaped areas 

within the watershed may impact water 

quality if used upslope or above a 

stream (PCE 2). Water diversion, such as 

water removal from the drainage system 

occupied by the subspecies, could 

reduce the amount of water flowing 

downstream following seasonal flooding 

events. Such reductions in downstream 

water flow may result in decreased 

deposition of alluvial material and a 

subsequent reduction in the amount of 

available habitat (PCEs 1 and 2). 

Disruption of the hydrologic cycle could 

also result in a decrease in the number 

of seeds that could have been 

transported downstream during 

seasonal flooding events, thereby 

fragmenting populations (PCE 2). 

Special management may be required to 

reduce impacts to M. l. ssp. viminea 

habitat resulting from alterations in the 

hydrologic regime associated with 

development in the local watershed. 

Such management may include bank 

replacement or stabilization to maintain 

the substrate, restoration of intermittent 

water flows, erosion and runoff control 

measures, and prohibitions against 

grading during the rainy season. 

Alteration of the hydrologic regime 

can also lead to an increase in native 

and nonnative plant species throughout 

riparian areas where Monardella 

linoides ssp. viminea occurs. Increased 

water flow associated with urban runoff 

has led to dense stands of riparian 

vegetation in the upper reaches of Lopez 

Canyon where M. l. ssp. viminea once 

occurred (Kelly and Burrascano 2006, p. 

39). Increases in riparian vegetation 

within ephemeral drainages may also be 

responsible for losses of M. l. ssp. 

viminea in lower San Clemente Canyon. 

Conversely, decreased water availability 

may result in conversion of habitat from 

mesic to xeric, in which more drought 

tolerant plants could expand into M. l. 

ssp. viminea habitat and create 

unnaturally high canopy cover or dense 

riparian vegetation, rendering the 

habitat unsuitable for M. l. ssp. viminea. 

Invasive species control may be 

required to maintain an open or semiopen canopy of coastal sage and riparian 

scrub with minimal herbaceous 

understory, as is required for M. l. ssp. 

viminea (PCE 3) to persist. 

Human activities (e.g., ORV activities 

and trampling) along streams can 

change the character of the riparian area 

and associated vegetation in ways that 

make portions of the riparian corridor 

less suitable for Monardella linoides 

ssp. viminea habitat. For example, 

heavy trampling may erode or denude 

stream banks and washes, thereby 

reducing or eliminating available habitat 

(PCE 1). Special management (i.e., bank 

replacement or stabilization) and 

prohibitions against ORV use during the 

rainy season may be required to 

maintain the substrate and reduce 

impacts to M. l. ssp. viminea habitat 

resulting from human use within the 

local watershed. 

Critical Habitat Designation 

The areas described below constitute 

our best assessment of areas occupied at 

the time of listing that meet the 

definition of critical habitat. Table 1 

outlines the area determined to meet the 

definition of critical habitat, including 

the area excluded from the final critical 

habitat designation, and the one area 

designated as final critical habitat for 

Monardella linoides spp. viminea. 

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

MONARDELLA LINOIDES SPP. VIMINEA

Geographic area Land meeting the definition 

of critical habitat 

Land excluded or 

exempted 

from critical habitat 

Critical habitat 

Unit 1 Sycamore Canyon .................................................... 73 ac (30 ha) ....................... 0 ac (0 ha) ........................... 73 ac (30 ha) 

Unit 2 MCAS Miramar ......................................................... 1,863 ac (754 ha) ................ 1,863 ac (754 ha)* ............... 0 ac (0 ha) 

Unit 3 Sycamore, West Sycamore and Spring Canyons ... 207 ac (84 ha) ..................... 207 ac (84 ha) 1 ................... 0 ac (0 ha) 

Unit 4 San Clemente Canyon ............................................. 9 ac (4 ha) ........................... 9 ac (4 ha) 1 ......................... 0 ac (0 ha) 

Unit 5 Elanus Canyon ......................................................... 13 ac (5 ha) ......................... 13 ac (5 ha) 1 ....................... 0 ac (0 ha) 

Unit 6 Lopez Canyon .......................................................... 77 ac (31 ha) ....................... 77 ac (31 ha) 1 ..................... 0 ac (0 ha) 

Unit 7 Marron Valley ........................................................... 42 ac (17 ha) ....................... 42 ac (17 ha) 1 ..................... 0 ac (0 ha) 

Unit 8 Otay Lakes ............................................................... 146 ac (59 ha) ..................... 146 ac (59 ha) 1 ................... 0 ac (0 ha) 

Unit 9 Otay Mountain .......................................................... 67 ac (27 ha) ....................... 67 ac (27 ha) 2 ..................... 0 ac (0 ha) 

Totals ........................................................................... 2,497 ac (1,011 ha) ............. 2,424 ac (981 ha) ................ 73 ac (30 ha) 

*Exempted from critical habitat under section 4(a)(3) of the Act in the proposed rule (70 FR 67956). 

1Excluded from final critical habitat under section 4(b)(2) based on the San Diego MSCP. 

2Excluded from final critical habitat under section 4(b)(2) based on the BLM’s Wilderness designation and Memorandum of Understanding 

(MOU) with the MSCP. 

Below, we present a brief description 

of the area included in the final 

designation and reasons why this area 

meets the definition of critical habitat 

for Monardella linoides spp. viminea. 

Unit 1: Sycamore Canyon 

Unit 1 consists of 73 ac (30 ha) in the 

Sycamore Canyon area and supports one 

of the largest occurrences of Monardella 

linoides ssp. viminea (CNDDB 2001). 

This unit was known to be occupied at 

the time of listing and is currently 

known to be occupied. Unit 1 contains 

all of the PCEs identified for M. l. ssp. 

viminea and represents 1 of the 10 

specific areas in San Diego County that 

support this species and 1 of only 15 


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occurrences of M. l. ssp. viminea (see 

proposed critical habitat designation for 

more information on species 

distribution; 70 FR 67956). Given the 

restricted range and low numbers of 

occurrences, this unit is necessary to 

minimize the risk of extinction from 

random events and urban development. 

In Unit 1, habitat with features essential 

to the conservation of Monardella 

linoides ssp. viminea may require 

special management to minimize 

impacts by nonnative invasive weeds; 

fire; indirect and direct effects of 

development, including altered 

hydrology; and recreational activities. 

The majority of lands within Unit 1 are 

in an area proposed to be set aside as 

an on-site preserve to benefit M. l. ssp. 

viminea conservation in this section of 

Sycamore Canyon. 

All of Unit 1 is located on private 

lands within the City of Santee. These 

private lands are the site of the being 

proposed for the Fanita Ranch 

development project. Fanita Ranch is 

currently developing an HCP that will 

serve as the foundation for the City of 

Santee’s subarea plan under the MSCP. 

As stated in the proposed critical habitat 

rule (70 FR 67956), we would have 

considered excluding this area from the 

final designation if we had received a 

proposed or approved HCP that 

provides benefits for Monardella 

linoides ssp. viminea, or had entered 

into an approved conservation 

agreement with Fanita Ranch that 

provides assurances of adequate 

conservation measures to be 

implemented by Fanita Ranch to protect 

and manage for the species on their 

lands. We did not receive an HCP or 

enter into a conservation agreement, 

and, thus, we are not excluding lands 

owned by Fanita Ranch from this final 

designation of critical habitat. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7 of the Act requires Federal 

agencies, including the Service, to 

ensure that actions they fund, authorize, 

or carry out are not likely to destroy or 

adversely modify critical habitat. In our 

regulations at 50 CFR 402.02, we define 

destruction or adverse modification as 

‘‘a direct or indirect alteration that 

appreciably diminishes the value of 

critical habitat for both the survival and 

recovery of a listed species. Such 

alterations include, but are not limited 

to, alterations adversely modifying any 

of those physical or biological features 

that were the basis for determining the 

habitat to be critical.’’ However, recent 

decisions by the 5th and 9th Circuit 

Court of Appeals have invalidated this 

definition. Pursuant to current national 

policy and the statutory provisions of 

the Act, destruction or adverse 

modification is determined on the basis 

of whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve the 

intended conservation role for the 

species. 

Section 7(a) of the Act requires 

Federal agencies, including the Service, 

to evaluate their actions with respect to 

any species that is proposed or listed as 

endangered or threatened and with 

respect to its critical habitat, if any is 

proposed or designated. Regulations 

implementing this interagency 

cooperation provision of the Act are 

codified at 50 CFR part 402 

Section 7(a)(4) of the Act requires 

Federal agencies to confer with us on 

any action that is likely to jeopardize 

the continued existence of a species 

proposed for listing or result in 

destruction or adverse modification of 

proposed critical habitat. This is a 

procedural requirement only. However, 

once a proposed species becomes listed, 

or proposed critical habitat is 

designated as final, the full prohibitions 

of section 7(a)(2) apply to any Federal 

action. The primary utility of the 

conference procedures is to maximize 

the opportunity for a Federal agency to 

adequately consider proposed species 

and critical habitat and avoid potential 

delays in implementing their proposed 

action as a result of the section 7(a)(2) 

compliance process, should those 

species be listed or the critical habitat 

designated. 

Under conference procedures, the 

Service may provide advisory 

conservation recommendations to assist 

the agency in eliminating conflicts that 

may be caused by the proposed action. 

The Service may conduct either 

informal or formal conferences. Informal 

conferences are typically used if the 

proposed action is not likely to have any 

adverse effects to the proposed species 

or proposed critical habitat. Formal 

conferences are typically used when the 

Federal agency or the Service believes 

the proposed action is likely to cause 

adverse effects to proposed species or 

critical habitat, inclusive of those that 

may cause jeopardy or adverse 

modification. 

The results of an informal conference 

are typically transmitted in a conference 

report; while the results of a formal 

conference are typically transmitted in a 

conference opinion. Conference 

opinions on proposed critical habitat are 

typically prepared according to 50 CFR 

402.14, as if the proposed critical 

habitat were designated. We may adopt 

the conference opinion as the biological 

opinion when the critical habitat is 

designated, if no substantial new 

information or changes in the action 

alter the content of the opinion (see 50 

CFR 402.10(d)). As noted above, any 

conservation recommendations in a 

conference report or opinion are strictly 

advisory. 

If a species is listed or critical habitat 

is designated, section 7(a)(2) of the Act 

requires Federal agencies to ensure that 

activities they authorize, fund, or carry 

out are not likely to jeopardize the 

continued existence of such a species or 

to destroy or adversely modify its 

critical habitat. If a Federal action may 

affect a listed species or its critical 

habitat, the responsible Federal agency 

(action agency) must enter into 

consultation with us. As a result of this 

consultation, compliance with the 

requirements of section 7(a)(2) will be 

documented through the Service’s 

issuance of: (1) A concurrence letter for 

Federal actions that may affect, but are 

not likely to adversely affect, listed 

species or critical habitat; or (2) a 

biological opinion for Federal actions 

that may affect, but are likely to 

adversely affect, listed species or critical 

habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

result in jeopardy to a listed species or 

the destruction or adverse modification 

of critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. 

‘‘Reasonable and prudent alternatives’’

are defined at 50 CFR 402.02 as 

alternative actions identified during 

consultation that can be implemented in 

a manner consistent with the intended 

purpose of the action, that are consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, that are 

economically and technologically 

feasible, and that the Director believes 

would avoid jeopardy to the listed 

species or destruction or adverse 

modification of critical habitat. 

Reasonable and prudent alternatives can 

vary from slight project modifications to 

extensive redesign or relocation of the 

project. Costs associated with 

implementing a reasonable and prudent 

alternative are similarly variable. 

Regulations at 50 CFR 402.16 require 

Federal agencies to reinitiate 

consultation on previously reviewed 

actions in certain circumstances, 

including where a new species is listed 

or critical habitat is subsequently 

designated that may be affected, if the 

Federal agency has retained 

discretionary involvement or control 


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over the action or such discretionary 

involvement or control is authorized by 

law. Consequently, some Federal 

agencies may request reinitiation of 

consultation with us on actions for 

which formal consultation has been 

completed, if those actions may affect 

subsequently listed species or 

designated critical habitat or adversely 

modify or destroy proposed critical 

habitat. 

Federal activities that may affect 

Monardella linoides spp. viminea or its 

designated critical habitat will require 

section 7 consultation under the Act. 

Activities on State, Tribal, local or 

private lands requiring a Federal permit 

(such as a permit from the Army Corps 

of Engineers (Corps) under section 404 

of the Clean Water Act or a permit 

under section 10(a)(1)(B) of the Act from 

the Service) or involving some other 

Federal action (such as funding from the 

Federal Highway Administration, 

Federal Aviation Administration, or the 

Federal Emergency Management 

Agency) will also be subject to the 

section 7 consultation process. Federal 

actions not affecting listed species or 

critical habitat, and actions on State, 

Tribal, local or private lands that are not 

federally-funded, authorized, or 

permitted, do not require section 7 

consultations. 

Application of the Jeopardy and 

Adverse Modification Standards for 

Actions Involving Effects to Monardella 

linoides spp. viminea and Its Critical 

Habitat 

Jeopardy Standard 

Prior to designation of critical habitat, 

the Service has applied an analytical 

framework for Monardella linoides spp. 

viminea jeopardy analyses that relies 

heavily on the importance of core area 

populations to the survival and recovery 

of the M. l. spp. viminea. The section 

7(a)(2) analysis is focused not only on 

these populations but also on the habitat 

conditions necessary to support them. 

The jeopardy analysis usually 

expresses the survival and recovery 

needs of Monardella linoides spp. 

viminea in a qualitative fashion without 

making distinctions between what is 

necessary for survival and what is 

necessary for recovery. Generally, if a 

proposed Federal action is incompatible 

with the viability of the affected core 

area population(s), inclusive of 

associated habitat conditions, a jeopardy 

finding is considered to be warranted, 

because of the relationship of each core 

area population to the survival and 

recovery of the species as a whole. 

Adverse Modification Standard 

For the reasons described in the 

Director’s December 9, 2004, 

memorandum, the key factor related to 

the adverse modification determination 

is whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

(or retain the current ability for the 

primary constituent elements to be 

functionally established) to serve its 

intended conservation role for the 

species. Generally, the conservation role 

of M. l. spp. viminea critical habitat 

units is to support viable core area 

populations. 

Section 4(b)(8) of the Act requires us 

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat those 

activities involving a Federal action that 

may destroy or adversely modify such 

habitat, or that may be affected by such 

designation. Activities that may destroy 

or adversely modify critical habitat may 

also jeopardize the continued existence 

of the species. 

Activities that may destroy or 

adversely modify critical habitat are 

those that alter the PCEs to an extent 

that the conservation value of critical 

habitat for Monardella linoides spp. 

viminea is appreciably reduced. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore result in consultation for the 

M. l. spp. viminea include, but are not 

limited to: 

(1) Actions that would significantly 

alter the natural hydrologic pattern of 

intermittent flows and peak seasonal 

flooding necessary to support 

Monardella linoides ssp. viminea. These 

activities could include Federal 

authorization for urban and agricultural 

development in the watershed that 

changes the amount, timing, frequency, 

and magnitude of stream flows. 

Increased and/or more frequent water 

flows associated with urban runoff 

could lead to dense stands of riparian 

vegetation that may out-compete M. l. 

ssp. viminea. Changes in the magnitude 

of seasonal flooding may increase 

scouring and erosion of terraces, banks, 

and benches and thereby reduce the 

quality and availability of suitable soils 

and habitat. Conversely, reduced water 

flow could result in more xeric 

conditions that would limit plant 

growth and reproduction and thereby 

allow more drought-tolerant plants to 

compete with M. l. ssp. viminea. 

(2) Actions associated with sand and 

gravel mining, stream channelization, 

flood channel management, highway 

construction, and dredging that would 

remove alluvium from stream channels 

or change the physical structure of the 

stream channel by altering floodplains, 

benches, sand bars, and stream 

channels. Federal authorization for 

projects that physically alter the stream 

channel may remove suitable alluvium 

from stream channels and result in the 

loss and degradation of habitat for 

Monardella linoides ssp. viminea. 

We consider the single unit 

designated as critical habitat, as well as 

those that have been excluded or not 

included, to contain features essential to 

the conservation of the Monardella 

linoides spp. viminea. All units are 

within the geographic range of the 

species and all were occupied by the 

species at the time we proposed critical 

habitat (based on observations made 

within the last 6 years). Federal agencies 

already consult with us on activities in 

areas currently occupied by M. l. spp. 

viminea, or if the subspecies may be 

affected by the action, to ensure that 

their actions do not jeopardize the 

continued existence of M. l. spp. 

viminea. 

Relationship of Critical Habitat to 

Military Lands—Application of Section 

4(a)(3) 

The Sikes Act Improvement Act of 

1997 (Sikes Act) (16 U.S.C. 670a) 

required each military installation that 

includes land and water suitable for the 

conservation and management of 

natural resources to complete, by 

November 17, 2001, an Integrated 

Natural Resource Management Plan 

(INRMP). An INRMP integrates 

implementation of the military mission 

of the installation with stewardship of 

the natural resources found on the base. 

Each INRMP includes an assessment of 

the ecological needs on the installation, 

including the need to provide for the 

conservation of listed species; a 

statement of goals and priorities; a 

detailed description of management 

actions to be implemented to provide 

for these ecological needs; and a 

monitoring and adaptive management 

plan. Among other things, each INRMP 

must, to the extent appropriate and 

applicable, provide for fish and wildlife 

management, fish and wildlife habitat 

enhancement or modification, wetland 

protection, enhancement, and 

restoration where necessary to support 

fish and wildlife, and enforcement of 

applicable natural resource laws. 

The National Defense Authorization 

Act for Fiscal Year 2004 (Pub. L. 108–

136) amended the Act to limit areas 

eligible for designation as critical 

habitat. Specifically, section 4(a)(3)(B)(i) 

of the Act (16 U.S.C. 1533(a)(3)(B)(i)) 

now provides: ‘‘The Secretary shall not 


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designate as critical habitat any lands or 

other geographical areas owned or 

controlled by the Department of 

Defense, or designated for its use, that 

are subject to an integrated natural 

resources management plan prepared 

under section 101 of the Sikes Act (16 

U.S.C. 670a), if the Secretary determines 

in writing that such plan provides a 

benefit to the species for which critical 

habitat is proposed for designation.’’

We consult with the military on the 

development and implementation of 

INRMPs for installations with listed 

species. The INRMP developed by 

MCAS Miramar, the only military 

installation located within the range of 

the critical habitat designation for 

Monardella linoides spp. viminea, was 

analyzed for non-inclusion under the 

authority of 4(a)(3) of the Act. 

Based on the above considerations, 

and in accordance with section 

4(a)(3)(B)(i) of the Act, we have 

determined that conservation efforts 

identified in MCAS Miramar’s INRMP 

will provide benefits to Monardella 

linoides spp. viminea occurring in 

habitats within or adjacent to MCAS 

Miramar. Approximately 1,863 ac (754 

ha) of essential habitat was exempted 

from this critical habitat designation 

under section 4(a)(3) of the Act. 

Under MCAS Miramar’s INRMP, the 

species is managed under a level II 

conservation effort that includes 

avoiding or minimizing the effect of 

planning action on endangered species 

and wetlands. In addition to the stationwide population census, MCAS 

Miramar has a long-term monitoring 

plan in place and has a habitat 

enhancement project to benefit 

Monardella linoides spp. viminea to be 

implemented in 2006. 

Exclusions Under Section 4(b)(2) 

Section 4(b)(2) of the Act states that 

critical habitat shall be designated, and 

revised, on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact, of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the Secretary is afforded broad 

discretion and the Congressional record 

is clear that in making a determination 

under the section the Secretary has 

discretion as to which factors and how 

much weight will be given to any factor. 

Under section 4(b)(2), in considering 

whether to exclude a particular area 

from the designation, we must identify 

the benefits of including the area in the 

designation, identify the benefits of 

excluding the area from the designation, 

and determine whether the benefits of 

exclusion outweigh the benefits of 

inclusion. If an exclusion is 

contemplated, then we must determine 

whether excluding the area would result 

in the extinction of the species. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we considered. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995), 

and at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002). Stein et al. (1995) found that only 

about 12 percent of listed species were 

found almost exclusively on Federal 

lands (i.e., 90 to 100 percent of their 

known occurrences restricted to Federal 

lands), and that 50 percent of federally 

listed species are not known to occur on 

Federal lands at all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners is 

essential to understanding the status of 

species on non-federal lands and is 

necessary to implement recovery actions 

such as reintroducing listed species, 

habitat restoration, and habitat 

protection. 

Many non-federal landowners derive 

satisfaction in contributing to 

endangered species recovery. The 

Service promotes these private-sector 

efforts through the Four Cs 

philosophy—conservation through 

communication, consultation, and 

cooperation. This philosophy is evident 

in Service programs such as HCPs, Safe 

Harbors, CCAs, CCAAs, and 

conservation challenge cost-share. Many 

private landowners, however, are wary 

of the possible consequences of 

encouraging endangered species to their 

property, and there is mounting 

evidence that some regulatory actions 

by the Federal government, while wellintentioned and required by law, can 

under certain circumstances have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability, resulting in 

anti-conservation incentives because 

maintaining habitats that harbor 

endangered species represents a risk to 

future economic opportunities (Main et 

al. 1999; Brook et al. 2003). 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7 of the Act, can 

sometimes be counterproductive to its 

intended purpose on non-Federal lands. 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

(Main et al. 1999; Bean 2002; Brook et 

al. 2003). The magnitude of this 

negative outcome is greatly amplified in 

situations where active management 

measures (e.g., reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). 

The Service believes that the 

judicious use of excluding specific areas 

of non-federally owned lands from 

critical habitat designations can 

contribute to species’ recovery and 

provide a superior level of conservation 

than critical habitat alone. The 

Department’s Four Cs philosophy—

conservation through communication, 

consultation, and cooperation—is the 

foundation for developing the tools of 

conservation. These tools include 

conservation grants, funding for 

Partners for Fish and Wildlife Program, 

the Coastal Program, and cooperativeconservation challenge cost-share 

grants. Our Private Stewardship Grant 

Program and Landowner Incentive 

Program provide assistance to private 

land owners in their voluntary efforts to 

protect threatened, imperiled, and 

endangered species, including the 

development and implementation of 

HCPs. 


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Conservation agreements with nonFederal landowners (e.g., Habitat 

Conservation Plans (HCPs), contractual 

conservation agreements, easements, 

and stakeholder-negotiated State 

regulations) enhance species’

conservation by extending species’

protections beyond those available 

through section 7 consultations. In the 

past decade, we have encouraged nonFederal landowners to enter into 

conservation agreements, based on a 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through coercive methods (61 FR 63854; 

December 2, 1996). 

In our critical habitat designations, we 

use the provisions outlined in section 

4(b)(2) of the Act to evaluate those 

specific areas that we propose to 

designate as critical habitat. We have 

determined that non-federal lands 

within the plan area of the City of San 

Diego subarea plan and the County of 

San Diego subarea plan, both of which 

are approved HCPs tiered to the San 

Diego Multiple Species Conservation 

Program, should be excluded under 

section 4(b)(2) of the Act. A detailed 

analysis of our use of these provisions 

is provided in the following paragraphs. 

General Principles of Section 7 

Consultations Used in the 4(b)(2) 

Balancing Process 

The most direct, and potentially 

largest, regulatory benefit of critical 

habitat is that federally authorized, 

funded, or carried out activities require 

consultation under section 7 of the Act 

to ensure that they are not likely to 

destroy or adversely modify critical 

habitat. There are two limitations to this 

regulatory effect. First, it only applies 

where there is a Federal nexus—if there 

is no Federal nexus, designation itself 

does not restrict actions that destroy or 

adversely modify critical habitat. 

Second, it only limits destruction or 

adverse modification. By its nature, the 

prohibition on adverse modification is 

designed to ensure those areas that 

contain the physical and biological 

features essential to the conservation of 

the species or unoccupied areas that are 

essential to the conservation of the 

species are not eroded. Critical habitat 

designation alone, however, does not 

require specific steps toward recovery. 

Once consultation under section 7 of 

the Act is triggered, the process may 

conclude informally when the Service 

concurs in writing that the proposed 

Federal action is not likely to adversely 

affect the listed species or its critical 

habitat. However, if the Service 

determines through informal 

consultation that adverse impacts are 

likely to occur, then formal consultation 

would be initiated. Formal consultation 

concludes with a biological opinion 

issued by the Service on whether the 

proposed Federal action is likely to 

jeopardize the continued existence of a 

listed species or result in destruction or 

adverse modification of critical habitat, 

with separate analyses being made 

under both the jeopardy and the adverse 

modification standards. For critical 

habitat, a biological opinion that 

concludes in a determination of no 

destruction or adverse modification may 

contain discretionary conservation 

recommendations to minimize adverse 

effects to primary constituent elements, 

but it would not contain any reasonable 

and prudent measures or terms and 

conditions. Mandatory measures and 

terms and conditions to implement such 

measures are only specified when the 

proposed action would result in 

incidental take of a listed animal 

species. Reasonable and prudent 

alternatives to the proposed Federal 

action would only be suggested when 

the biological opinion results in a 

jeopardy or adverse modification 

conclusion. 

We also note that for 30 years prior to 

the Ninth Circuit Court’s decision in 

Gifford Pinchot, the Service conflated 

the jeopardy standard with the standard 

for destruction or adverse modification 

of critical habitat when evaluating 

Federal actions that affect currentlyoccupied critical habitat. The Court 

ruled that the two standards are distinct 

and that adverse modification 

evaluations require consideration of 

impacts on the recovery of species. 

Thus, under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species. However, we 

believe the conservation achieved 

through implementing habitat 

conservation plans (HCPs) or other 

habitat management plans is typically 

greater than would be achieved through 

multiple site-by-site, project-by-project, 

section 7 consultations involving 

consideration of critical habitat. 

Management plans commit resources to 

implement long-term management and 

protection to particular habitat for at 

least one and possibly other listed or 

sensitive species. Section 7 

consultations only commit Federal 

agencies to prevent adverse 

modification to critical habitat caused 

by the particular project, and not to 

provide conservation or long-term 

benefits to areas affected by the 

proposed project. Thus, any HCP or 

management plan which considers 

enhancement or recovery as the 

management standard will often provide 

as much or more benefit than a 

consultation for critical habitat 

designation conducted under the 

standards required by the Ninth Circuit 

in the Gifford Pinchot decision. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat in that it provides the framework 

for the consultation process. 

Educational Benefits of Critical Habitat 

A benefit of including lands in critical 

habitat is that the designation of critical 

habitat serves to educate landowners, 

State and local governments, and the 

public regarding the potential 

conservation value of an area. This 

helps focus and promote conservation 

efforts by other parties by clearly 

delineating areas of high conservation 

value for Monardella linoides spp. 

viminea. In general, the educational 

benefit of a critical habitat designation 

always exists, although in some cases it 

may be redundant with other 

educational effects. For example, HCPs 

have significant public input and may 

largely duplicate the educational benefit 

of a critical habitat designation. This 

benefit is closely related to a second, 

more indirect benefit: that designation 

of critical habitat would inform State 

agencies and local governments about 

areas that could be conserved under 

State laws or local ordinances. 

However, we believe that there would 

be little additional informational benefit 

gained from the designation of critical 

habitat for the exclusions we are making 

in this rule because these areas are 

identified in this notice as having 

habitat containing the features essential 

to the conservation of the species. 

Consequently, we believe that the 

informational benefits are already 

provided even though these areas are 

not designated as critical habitat. 

Additionally, the purpose normally 

served by the designation of informing 

State agencies and local governments 

about areas which would benefit from 

protection and enhancement of habitat 

for Monardella linoides spp. viminea is 

already well established among State 

and local governments and Federal 

agencies in those areas that we are 

excluding from critical habitat in this 

rule on the basis of other existing 

habitat management protections. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 


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Benefits of Excluding Lands With HCPs 

or Other Approved Management Plans 

From Critical Habitat 

The benefits of excluding lands with 

HCPs from critical habitat designation 

include relieving landowners, 

communities, and counties of any 

additional regulatory burden that might 

be imposed by a critical habitat 

designation. Most HCPs and other 

conservation plans take many years to 

develop and, upon completion, are 

consistent with the recovery objectives 

for listed species that are covered within 

the plan area. In fact, designating 

critical habitat in areas covered by a 

pending HCP or conservation plan 

could result in the loss of some species’

benefits if participants abandon the 

planning process, in part because of the 

strength of the perceived additional 

regulatory compliance that such 

designation would entail. This is 

particularly true in the case of plants, 

such as Monardella linoides spp. 

viminea. Although plants are not subject 

to the prohibition on take in section 9 

of the Act, the Service encourages 

applicants to include them as covered 

species in HCPs by incorporating 

measures to protect them and their 

habitat under the plans. If as a result of 

the Federal nexus created by such 

inclusion, plants are subjected to 

increased numbers of consultations 

under section 7 due to designation of 

critical habitat, applicants will likely be 

discouraged from incorporating 

conservation measures for plants in 

their HCPs. The time and cost of 

regulatory compliance for a critical 

habitat designation do not have to be 

quantified for them to be perceived as 

additional Federal regulatory burden 

sufficient to discourage continued 

participation in plans targeting listed 

species’ conservation. 

Many conservation or management 

plans provide conservation benefits to 

unlisted sensitive species. Imposing an 

additional regulatory review as a result 

of the designation of critical habitat may 

undermine conservation efforts and 

partnerships in many areas. Designation 

of critical habitat within the boundaries 

of management plans that provide 

conservation measures for a species 

could be viewed as a disincentive to 

those entities currently developing these 

plans or contemplating them in the 

future, because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species are 

affected. Addition of a new regulatory 

requirement would remove a significant 

incentive for undertaking the time and 

expense of management planning. 

A related benefit of excluding lands 

within management plans from critical 

habitat designation is the unhindered, 

continued ability to seek new 

partnerships with future plan 

participants including States, counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. If lands 

within approved management plan 

areas are designated as critical habitat, 

it would likely have a negative effect on 

our ability to establish new partnerships 

to develop these plans, particularly 

plans that address landscape-level 

conservation of species and habitats. By 

preemptively excluding these lands, we 

preserve our current partnerships and 

encourage additional conservation 

actions in the future. 

Furthermore, the Service’s decision to 

approve an HCP or NCCP/HCP 

application is subject to the consultation 

requirement. Such a consultation would 

review the effects of all activities 

covered by the HCP which might 

adversely impact the species under a 

jeopardy standard, even without the 

critical habitat designation. In addition, 

Federal actions not covered by the HCP 

in areas occupied by listed species 

would still require consultation under 

section 7 of the Act and would be 

reviewed for possibly significant habitat 

modification. 

The information provided in this 

section applies to all the discussions 

below that discuss the benefits of 

inclusion and exclusion of critical 

habitat. 

Relationship of Critical Habitat to 

Approved Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act 

San Diego Multiple Species 

Conservation Program (MSCP) 

Below, we first provide some general 

background information on the San 

Diego MSCP, followed by an analysis 

under section 4(b)(2) of the Act of the 

benefits of including San Diego MSCP 

lands within the critical habitat 

designation, an analysis of the benefits 

of excluding these lands, and an 

analysis of why we believe the benefits 

of exclusion are greater than those of 

inclusion. Finally, we provide a 

determination that exclusion of these 

lands would not result in extinction of 

M. l. ssp. viminea. 

We are excluding from the final 

critical habitat designation 

approximately 494 ac (200 ha) of nonFederal lands within the City of San 

Diego subarea plan and the County of 

San Diego subarea plan of the San Diego 

MSCP under section 4(b)(2) of the Act. 

M. l. ssp. viminea is a covered species 

under these two approved and legally 

operative subarea plans. These HCPs 

provide special management and 

protection for the physical and 

biological features essential for the 

conservation of M. l. ssp. viminea that 

exceed the level of regulatory control 

that would be afforded this subspecies 

by the designation of critical habitat. We 

believe that the benefits of excluding 

essential habitat covered by these HCPs 

from the critical habitat designation 

would outweigh the benefits of 

including them as critical habitat, and 

that the exclusion under consideration 

would not result in the extinction of M. 

l. ssp. viminea. 

In southwestern San Diego County, 

the MSCP effort encompasses more than 

582,000 ac (236,000 ha) and anticipates 

the participation of 12 jurisdictions. 

Under the broad umbrella of the MSCP, 

each of the 12 participating jurisdictions 

prepares a subarea plan that implements 

the goals of the MSCP within that 

particular jurisdiction. Three of the 12 

jurisdictions cover lands that support M. 

l. ssp. viminea. Two of the jurisdictions, 

the County of San Diego and the City of 

San Diego, have completed subarea 

plans. The third jurisdiction, the City of 

Santee, is currently preparing its 

subarea plan. We conduct a consultation 

on each subarea plan and associated 

permit under section 7 of the Act to 

ensure they are not likely to result in 

jeopardy, or adversely modify or destroy 

the designated critical habitat, of any 

covered species. We also review the 

plans under Section 10 of the Act to 

ensure they meet the criteria for 

issuance of an incidental take permit 

and are consistent with the terms and 

goals of the MSCP. We completed these 

analyses for the City of San Diego and 

County of San Diego subarea plans prior 

to issuing incidental take permits to 

those jurisdictions. 

The regional MSCP is also a regional 

subarea plan under the State of 

California’s Natural Communities 

Conservation Plan (NCCP) program and 

was developed in cooperation with 

California Department of Fish and Game 

(CDFG). Over the 50-year term of the 

City and County permits, the MSCP 

provides for the establishment of 

approximately 171,000 ac (69,573 ha) of 

preserve lands within the Multi-Habitat 

Planning Area (MHPA) (City of San 

Diego) and Pre-Approved Mitigation 

Areas (PAMA) (County of San Diego) to 

benefit the 85 federally listed and 

sensitive species, including M. l. ssp. 

viminea, covered under the plan. 

Private lands within the MHPA and 


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PAMA lands are subject to special 

restrictions on development and, as they 

are committed to the preserve, must be 

legally protected and permanently 

managed to conserve the covered 

species. Public lands owned by the City 

and County and by the State of 

California and Federal government that 

are identified for conservation under the 

MSCP must also be protected and 

permanently managed to protect the 

covered species. The MSCP requires the 

City and County to develop broad 

framework and site-specific 

management plans, subject to the review 

and approval of the Service and CDFG, 

to guide the management of all preserve 

lands under City and County control. 

The plans incorporate requirements to 

monitor and adaptively manage M. l. 

ssp. viminea habitats over time. Under 

the MSCP, the State and Federal 

governments have also committed to 

provide similar management for their 

preserve lands. 

As discussed above, each take 

authorization holder prepares a 

framework management plan as a 

condition of its implementing 

agreement. The framework management 

plan provides general direction for all 

preserve management issues within the 

subarea plan’s boundaries. Area-specific 

management directives are developed 

for managing lands that are conserved as 

part of the reserves. The framework and 

area-specific management plans are 

comprehensive and address a broad 

range of management needs at the 

preserve and species levels. These plans 

include the following: (1) Fire 

management; (2) public access control; 

(3) fencing and gates; (4) ranger patrol; 

(5) trail maintenance; (6) visitor/ 

interpretive and volunteer services; (7) 

hydrological management; (8) signage 

and lighting; (9) trash and litter removal; 

(10) access road maintenance; (11) 

enforcement of property and 

homeowner requirements; (12) removal 

of invasive species; (13) nonnative 

predator control; (14) species 

monitoring; (15) habitat restoration; (16) 

management for diverse age classes; (17) 

use of herbicides and rodenticides; (18) 

biological surveys; (19) research; and 

(20) species management conditions 

(Final MSCP Plan 1998). These 

management measures benefit 

Monardella linoides. ssp. viminea and 

reduce the threats to this species. The 

MSCP also provides for a biological 

monitoring program, and M. l. ssp. 

viminea is identified as a first priority 

plant species for field monitoring (Final 

MSCP Plan 1998). Species prioritized 

for field monitoring (such as M. l. ssp. 

viminea) face the greatest threats to their 

viability, and detailed field monitoring 

assesses both immediate threats and 

long-term population trends. The City of 

San Diego monitors M. l. ssp. viminea 

on an annual basis (City of San Diego 

2000, pp. 1–11; 2001, pp. 1–6; 2002, pp. 

1–7; 2003, pp. 1–6; and 2004, pp. 1–9). 

Moreover, the rare plant monitoring 

plan under the MSCP is being updated 

with the assistance of the U.S. 

Geological Survey Biological Research 

Division and a three-member 

independent scientific advisory group. 

In addition to the restrictions on 

development and conservation 

obligations that apply within the MHPA 

and PAMA, the MSCP incorporates 

processes to protect sensitive species of 

limited distribution, including 

Monardella linoides ssp. viminea, 

within the plan area. Under the City of 

San Diego’s subarea plan, impacts to 

narrow endemic species inside the 

MHPA will be avoided and outside the 

MHPA will be protected as appropriate 

by (1) avoidance, (2) management, (3) 

enhancement, or (4) transplantation to 

areas identified for preservation. Under 

the County of San Diego’s subarea plan, 

narrow endemic plants, including M. l. 

ssp. viminea, would be conserved under 

their Biological Mitigation Ordinance 

using a process that (1) requires 

avoidance to the maximum extent 

feasible, (2) allows for a maximum 20 

percent encroachment into a population 

if total avoidance is not feasible, and (3) 

requires mitigation at the 1:1 to 3:1 (in 

kind) for impacts if avoidance and 

minimization of impacts would result in 

no reasonable use of the property. Thus, 

these processes to protect narrow 

endemic plants, including M. l. ssp. 

viminea, whether located on lands 

targeted for preserve status within the 

MHPA and PAMA or located outside of 

those areas, ensure these limited 

distribution species are protected 

wherever they occur. Considered as a 

whole, the protection and management 

of M. l. ssp. viminea provided under the 

City and County subarea plans will 

ensure the permanent conservation of 

this species and its habitat within the 

areas covered by the plans. 

We are therefore excluding from 

critical habitat a portion of Sycamore 

Canyon and all of West Sycamore and 

Spring Canyons (Unit 3 in Table 1), San 

Clemente Canyon (Unit 4 in Table 1), 

Elanus Canyon (Unit 5 in Table 1), 

Lopez Canyon (Unit 6 in Table 1), 

Marron Valley (Unit 7 in Table 1), and 

Otay Lakes (Unit 8 in Table 1) under 

section 4(b)(2) of the Act because they 

are covered by the City and the County 

subarea plans. All of the populations of 

Monardella linoides ssp. viminea 

anticipated to be conserved by the 

MSCP under the City of San Diego and 

County of San Diego subarea plans 

occur in these geographical areas. These 

populations will be conserved and will 

be managed and monitored pursuant to 

or consistent with the MSCP. The 

framework and area-specific 

management plans (described above) 

provide management and monitoring of 

M. l. ssp. viminea. 

The portions of Sycamore Canyon 

(Units 3A, 3B, and 3C) that we are 

excluding from critical habitat are under 

either city and county ownership and 

are within the reserve design of the 

MHPA and PAMA under the city’s and 

county’s subarea plans. The majority of 

the county-owned PAMA lands in 

Sycamore Canyon has already been 

conserved and is being managed for the 

conservation of covered species, 

including Monardella linoides ssp. 

viminea, consistent with the framework 

and area-specific management plans 

described above. The remaining countyowned lands and city-owned lands in 

Sycamore Canyon have not yet been 

formally committed to the preserve but 

will continue to be protected through 

the city’s and county’s subarea plans’

processes to protect narrow endemic 

species (described above) until these 

lands become part of the preserve. 

Lands in West Sycamore Canyon 

(Unit 3D) that we are excluding from 

critical habitat are under city ownership 

and are within the reserve design of the 

MHPA. These lands have been already 

conserved and are being managed for 

the conservation of covered species 

consistent with the framework and areaspecific management plans described 

above, including Monardella linoides 

ssp. viminea under the city’s subarea 

plan. 

Lands in Spring Canyon (Unit 3E) that 

we are excluding from critical habitat 

are under private ownership but are 

within the reserve design of the MHPA 

and are targeted for preservation under 

the city’s subarea plan. The private 

lands in Spring Canyon have not yet 

been formally committed to the 

preserve, but are within an area that 

calls for 100 percent conservation of 

Monardella linoides ssp. viminea. The 

City of San Diego has recently acquired 

private lands in Spring Canyon through 

the MSCP that will benefit M. l. ssp. 

viminea. Populations of M. l. ssp. 

viminea on the remaining private lands 

will continue to be protected through 

the city’s subarea plan process 

described above to protect narrow 

endemic species until these private 

lands become part of the preserve. 

Lands in San Clemente Canyon (Unit 

4) that we are excluding from critical 

habitat are under city ownership. The 


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majority of these lands is within the 

reserve design of the MHPA, has been 

committed to the preserve, and is being 

managed for the conservation of covered 

species consistent with the framework 

and area-specific management plans 

described above, including Monardella 

linoides ssp. viminea, under the city’s 

MSCP subarea plan. A small portion of 

these lands is on city-owned lands that 

are not within the MHPA. Populations 

of M. l. ssp. viminea on the remaining 

city-owned lands will continue to be 

protected through the city’s subarea 

plan process described above to protect 

narrow endemic species. 

Lands in Elanus Canyon (Unit 5) that 

we are excluding from critical habitat 

are under city ownership and are within 

the reserve design of the MHPA. They 

are committed to the preserve and are 

being managed for the conservation of 

covered species, including Monardella 

linoides ssp. viminea, under the city’s 

subarea plan. 

Lands in Lopez Canyon (Unit 6) that 

we are excluding from critical habitat 

are under city ownership and are within 

the reserve design of the MHPA. The 

lands are committed to the preserve and 

are being managed for the conservation 

of covered species, including 

Monardella linoides ssp. viminea, under 

the city’s subarea plan. 

Lands in Marron Valley (Unit 7) that 

we are excluding from critical habitat 

are under city and State ownership and 

are within the reserve design of the 

MHPA. The city-owned lands have been 

committed to the preserve and are being 

managed for the conservation of covered 

species, including Monardella linoides 

ssp. viminea, under the city’s subarea 

plan. State Lands are being managed 

pursuant to commitments made by the 

State of California to implement the 

MSCP on State-owned lands. 

Lands in Otay Lakes (Unit 8) that we 

are excluding from critical habitat are 

under City of San Diego, City of Chula 

Vista, State of California, and private 

ownership. These lands are also within 

the MHPA and PAMA, and are either 

already committed to the preserve or are 

targeted for 100 percent preservation 

under the city’s and county’s subarea 

plans. The lands owned by the City of 

Chula Vista were formerly owned by 

Otay Ranch and were conveyed to the 

city as mitigation for the Otay Ranch 

development. These lands are conserved 

within the County of San Diego’s 

subarea plan. The preserve lands are 

being managed for the conservation of 

the covered species, including 

Monardella linoides ssp. viminea, under 

the city’s and county’s subarea plans 

and pursuant to commitments made by 

the State of California to implement the 

MSCP on State-owned lands. Those 

lands not yet formally committed to the 

preserve will continue to be protected 

through the county’s subarea plan 

process described above to protect 

narrow endemic species until these 

lands become part of the preserve. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We expect the MSCP to provide 

substantial protection and management 

of the PCEs within essential habitat for 

Monardella linoides ssp. viminea on 

MSCP conservation lands. We expect 

the MSCP to provide active management 

for M. l. ssp. viminea on non-Federal 

lands in contrast to designation of 

critical habitat, which would only 

preclude their destruction or adverse 

modification. Moreover, the educational 

benefits that would result from critical 

habitat designation, including informing 

the public of areas that are necessary for 

the long-term conservation of the 

subspecies, are already in place as a 

result both of material provided on our 

website and through public notice-andcomment procedures required to 

establish the MSCP and specific subarea 

plans. 

In contrast to the lack of an 

appreciable benefit of including these 

lands as critical habitat, the exclusion of 

these lands from critical habitat will 

help preserve the partnerships that we 

have developed with the local 

jurisdictions and project proponents in 

the development of the MSCP. As 

discussed above, many landowners 

perceive critical habitat as an unfair and 

unnecessary regulatory burden given the 

expense and time involved in 

developing an implementing complex 

regional HCPs, such as the MSCP. For 

these reasons, we believe that 

designating critical habitat has little 

benefit in areas covered by the MSCP 

and such minor benefit is outweighed 

by the benefits of maintaining 

partnerships with local jurisdictions 

and private landowners with lands 

covered by the MSCP. 

We have reviewed and evaluated the 

benefits of inclusion and the benefits of 

exclusion of lands as critical habitat for 

Monardella linoides ssp. viminea. Based 

on this evaluation, we find that the 

benefits of excluding lands in the 

planning area for the MSCP outweigh 

the benefits of including those lands as 

critical habitat for M. l. ssp. viminea. 

Exclusion Will Not Result in Extinction 

of the Species 

Exclusion of these 494 ac (200 ha) of 

non-Federal lands will not result in 

extinction of Monardella linoides ssp. 

viminea because these lands will be 

conserved and managed for the benefit 

of this species pursuant to the approved 

MSCP subarea plans. The jeopardy 

standard of section 7 and routine 

implementation of habitat protection 

through the section 7 process also 

provide assurances that the species will 

not go extinct. 

Relationship of Critical Habitat Within 

the Bureau of Land Management—

Exclusion Under Section 4(b)(2) of the 

Act 

Federal lands managed by the Bureau 

of Land Management (BLM) are an 

integral part of the conservation strategy 

of San Diego MSCP. However, BLM, like 

any other Federal agency, is not a 

permittee under the section 10(a)(1)(B) 

permit for the San Diego MSCP. The 

BLM, Service, CDFG, City of San Diego, 

and County of San Diego, in cooperation 

with the San Diego Association of 

Governments (SANDAG), signed a 

Memorandum of Understanding (MOU) 

in June 1994, committing to cooperate 

in habitat conservation planning and 

management related to the San Diego 

MSCP. Under the MOU, BLM agreed to 

take the following actions to assist in 

implementing the MSCP’s conservation 

goals and objectives: (1) To make 

maintenance and management of the 

area’s unique biological diversity a 

principal goal in the design and 

implementation of its conservation 

programs; (2) to coordinate with the 

other signatory parties regarding 

assessment of the wildlife values of 

those lands managed by BLM within 

San Diego County; (3) to coordinate 

with signatory parties to resolve any 

BLM, State, regional or local land 

management prescriptions that are 

inconsistent with existing or proposed 

conservation objectives; (4) to work with 

the County, the City, SANDAG, CDFG, 

and Service in identifying the lands it 

manages for inclusion within the 

region’s habitat conservation systems; 

and (5) to work with signatory parties to 

acquire key habitat areas using a variety 

of techniques. Thus, while not a 

permittee to the section 10(a)(1)(B) 

permit for the San Diego MSCP, BLM 

lands, in particular those on Otay 

Mountain that support a variety of listed 

and sensitive covered MSCP species, are 

a key component of the overall reserve 

design for the MSCP. 

At the time of the MOU (and at the 

time of listing), Monardella linoides ssp. 

viminea was not known to occur on 

BLM lands at Otay Mountain. Since the 

development and approval of the San 

Diego MSCP, new information has 

identified a previously unknown 

population of M. l. ssp. viminea on BLM 

lands at West Otay Mountain. Surveys 


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in 2000 counted 202 clumps of M. l. ssp. 

viminea, making this occurrence the 

fourth largest population at that time. 

The populations of M. l. ssp. viminea on 

BLM lands at Otay Mountain are within 

the area covered by the MOU. Congress 

formally designated BLM lands on Otay 

Mountain as the Otay Mountain 

Wilderness in 1999 (Otay Mountain 

Wilderness Act, Pub. L. 106–145, 

December 9, 1999). The occurrences of 

M. l. ssp. viminea on Otay Mountain are 

within the designated boundaries of the 

Otay Mountain Wilderness. The 

inclusion of these occupied habitats 

within a designated wilderness provides 

additional significant protection for this 

area and complement BLM’s objective to 

manage these public lands to provide 

protection and enhancement for 

biological values. 

The Wilderness Act of 1964 (16 U.S.C. 

1131 et seq.) restricts vehicles, new 

developments, chainsaws, mountain 

bikes, leasing, and mining from the 

wilderness area. Grazing is permitted 

within the wilderness area; however, no 

grazing allotments currently exist. Thus, 

the population and habitat of 

Monardella linoides ssp. viminea on 

BLM land receives conservation 

protection consistent with the Otay 

Mountain Wilderness, MOU, and San 

Diego MSCP. Our analysis below 

examines the benefits of inclusion and 

benefits of exclusion of approximately 

67 ac (27 ha) of Federal lands managed 

by the BLM from critical habitat Unit 9 

under section 4(b)(2) of the Act. These 

lands are within the designated Otay 

Mountain Wilderness that is targeted for 

conservation under the MOU for the San 

Diego MSCP. 

Benefits of Inclusion 

We believe there would be minimal 

benefit from designating critical habitat 

for Monardella linoides ssp. viminea on 

BLM lands because the habitat essential 

for this species on Otay Mountain is 

already conserved within the Otay 

Mountain Wilderness and is targeted for 

conservation under the MOU for the San 

Diego MSCP as explained above. 

The primary benefit of including an 

area within a critical habitat designation 

is the protection provided by section 

7(a)(2) of the Act that directs Federal 

agencies to ensure that their actions do 

not result in the destruction or adverse 

modification of critical habitat. The 

designation of critical habitat may 

provide a different level of protection 

under section 7(a)(2) for M. l. ssp. 

viminea that is separate from the 

obligation of a Federal agency to ensure 

that their actions are not likely to 

jeopardize the continued existence of a 

listed species. Under the Gifford Pinchot 

decision, critical habitat designations 

may provide greater benefits to the 

recovery of a species than was 

previously believed, but it is not 

possible to quantify this benefit at 

present. However, the protection 

provided is still a limitation on the 

adverse effects that occur as opposed to 

a requirement to provide a conservation 

benefit. 

The inclusion of these 67 ac (27 ha) 

of Federal land in critical habitat 

designation is unlikely to provide any 

additional Federal regulatory benefits 

for the species consistent with the 

conservation standard based on the 

Ninth Circuit Court’s decision in Gifford 

Pinchot. Inclusion of this area in critical 

habitat would require Federal agencies 

to ensure that their actions on these 

Federal lands are not likely result in the 

destruction or adverse modification of 

critical habitat. The potential benefits 

resulting from this additional analysis to 

determine destruction or adverse 

modification of critical habitat are likely 

to be minimal to nonexistent because 

the extensive restrictions on permitted 

uses and the prohibition on 

development of designated wilderness 

lands virtually eliminates the possibility 

of future Federal actions likely to 

negatively impact essential habitat for 

Monardella linoides ssp. viminea within 

this area. 

Another potential benefit of critical 

habitat would be to signal the 

importance of these lands to Federal 

agencies, scientific organizations, State 

and local governments, and the public 

to encourage conservation efforts to 

benefit M. l. ssp. viminea and its habitat. 

However, as discussed above, the 

importance of protecting the biological 

resource values of these lands, 

including M. l. ssp. viminea, has already 

been clearly and effectively 

communicated to Federal, State, and 

local agencies and other interested 

organizations and members of the 

public through designation of the lands 

as wilderness, through the 1994 MOU, 

and through the MSCP approval and 

implementation process. 

In short, we expect BLM’s MOU for 

the San Diego MSCP to result in special 

management of the PCEs, and the MOU, 

in conjunction with the wilderness 

designation, to result in substantial 

protection within habitat with features 

essential for the conservation of 

Monardella linoides ssp. viminea on 

Federal lands on Otay Mountain. We 

expect the MOU to provide a greater 

level of management for M. l. ssp. 

viminea on Federal lands than would 

designation of critical habitat. 

Benefits of Exclusion 

In contrast to section 7(a)(2) of the 

Act, the wilderness designation and 

1994 MOU committing the BLM to 

manage its lands for the benefit of M. l. 

ssp. viminea and other covered species 

go well beyond a simple requirement to 

avoid adverse modification of critical 

habitat. BLM has demonstrated its 

proactive commitment to the 

conservation goals and objectives of the 

MSCP by entering into the 1994 MOU 

and thereby becoming a key partner in 

the MSCP. Excluding these 67 ac (27 ha) 

of BLM lands from critical habitat 

designation recognizes BLM’s 

commitment under their MOU to 

manage their lands consistent with the 

MSCP, and provides additional 

incentive to BLM to maintain and 

strengthen the partnerships created by 

its official participation in the MSCP 

planning process, especially considering 

the high level of cooperation by the 

participants in the MSCP to conserve 

this taxon. BLM’s commitment to 

species’ conservation under the MSCP is 

in line with the agency’s requirement to 

utilize its programs for the furtherance 

of the purposes of the Act under section 

7(a), and may exceed the conservation 

value provided by a critical habitat 

designation alone since BLM, as a 

partner in an existing conservation 

program, is able focus limited Federal 

resources toward proactive conservation 

of sensitive species. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

We believe that the benefits of 

exclusion of the lands containing 

features essential to the conservation of 

Monardella linoides ssp. viminea within 

the designated Otay Mountain 

Wilderness, although minimal, 

outweigh the even more minimal 

benefits of inclusion of these lands as 

critical habitat. We have therefore 

excluded essential habitat for M. l. ssp. 

viminea on lands owned by the BLM on 

Otay Mountain from this final critical 

habitat designation. 

Exclusion Will Not Result in Extinction 

of the Species 

Exclusion of these 67 ac (27 ha) of 

Federal lands will not result in 

extinction of Monardella linoides ssp. 

viminea because these lands will be 

permanently protected for the benefit of 

this species and its essential habitat 

pursuant to the Otay Mountain 

Wilderness Act and will be actively 

managed pursuant to the 1994 MOU for 

the San Diego MSCP. The protection of 

the Otay Mountain population of M. l. 

ssp. viminea and its habitat, along with 


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the conservation of the remaining 

populations and essential habitat of this 

species under the San Diego MSCP and 

MCAS Miramar INRMP, will ensure the 

species’ continued existence. 

The jeopardy standard of section 7 

and routine implementation of habitat 

conservation through the section 7 

process also provide assurances that the 

species will not go extinct. 

Relationship of Critical Habitat to 

Economic Impacts—Exclusions Under 

Section 4(b)(2) of the Act 

Section 4(b)(2) allows the Secretary to 

exclude areas from critical habitat for 

economic reasons if he determines that 

the benefits of such exclusion exceed 

the benefits of designating the area as 

critical habitat, unless the exclusion 

will result in the extinction of the 

species concerned. This is a 

discretionary authority Congress has 

provided to the Secretary with respect 

to critical habitat. Although economic 

and other impacts may not be 

considered when listing a species, 

Congress has expressly required their 

consideration when designating critical 

habitat. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis was 

made available for public review on 

June 1, 2006 (71 FR 31137). We 

accepted comments on the draft analysis 

until July 3, 2006. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for 

Monardella linoides spp. viminea. This 

information is intended to assist the 

Secretary in making decisions about 

whether the benefits of excluding 

particular areas from the designation 

outweigh the benefits of including those 

areas in the designation. This economic 

analysis considers the economic 

efficiency effects that may result from 

the designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

The analysis focuses on the direct and 

indirect costs of the rule. However, 

economic impacts to land use activities 

can exist in the absence of critical 

habitat. These impacts may result from, 

for example, local zoning laws, State 

and natural resource laws, and 

enforceable management plans and best 

management practices applied by other 

State and Federal agencies. Economic 

impacts that result from these types of 

protections are not included in the 

analysis as they are considered to be 

part of the regulatory and policy 

baseline. 

The economic analysis estimates that 

because all of the essential habitat 

proposed as critical habitat is conserved 

or will be conserved under the MSCP 

and there are only minor effects to 

future development, there are negligible, 

unquantifiable potential economic 

impacts anticipated from the critical 

designation as proposed. Therefore, no 

habitat was excluded due to economic 

impacts. 

A copy of the final economic analysis 

with supporting documents are 

included in our administrative record 

and may be obtained by contacting U.S. 

Fish and Wildlife Service, Branch of 

Endangered Species (see ADDRESSES

section) or for downloading from the 

Internet at http://www.fws.gov/ 

carlsbad/. 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866, this document is a significant 

rule in that it may raise novel legal and 

policy issues. However, because the 

economic analysis indicates that the 

potential economic impacts associated 

with the proposed designation of critical 

habitat are negligible, we conclude that 

this final rule will not have an annual 

effect on the economy of $100 million 

or more or affect the economy in a 

material way. Due to the timeline for 

publication in the Federal Register, the 

Office of Management and Budget 

(OMB) did not formally review the final 

rule. 

Further, Executive Order 12866 

directs Federal Agencies promulgating 

regulations to evaluate regulatory 

alternatives (Office of Management and 

Budget, Circular A–4, September 17, 

2003). Pursuant to Circular A–4, once it 

has been determined that the Federal 

regulatory action is appropriate, the 

agency will need to consider alternative 

regulatory approaches. Since the 

determination of critical habitat is a 

statutory requirement under the Act, we 

must then evaluate alternative 

regulatory approaches, where feasible, 

when promulgating a designation of 

critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

section 4(b)(2) of the Act. Based on the 

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat, and that such exclusion would 

not result in the extinction of the 

species. As such, we believe that the 

evaluation of the inclusion or exclusion 

of particular areas, or combined thereof, 

in a designation constitutes our 

regulatory alternative analysis. 

As explained above, we prepared an 

economic analysis of this action. We 

used this analysis to meet the 

requirement of section 4(b)(2) of the Act 

to determine the economic 

consequences of designating the specific 

areas as critical habitat. We also used it 

to help determine whether to exclude 

any area from critical habitat, as 

provided for under section 4(b)(2). 

Regulatory Flexibility Act (5 U.S.C. 601 

et seq.) 

Under the Regulatory Flexibility Act 

(RFA) (as amended by the Small 

Business Regulatory Enforcement 

Fairness Act (SBREFA) of 1996), 

whenever an agency is required to 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effect of the rule on small 

entities (i.e., small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of an agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. The SBREFA amended the RFA 

to require Federal agencies to provide a 

statement of factual basis for certifying 

that the rule will not have a significant 

economic impact on a substantial 

number of small entities. The SBREFA 

also amended the RFA to require a 

certification statement. 

Small entities include small 

organizations, such as independent 

nonprofit organizations; small 

governmental jurisdictions, including 

school boards and city and town 

governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 


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$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

(e.g., housing development, grazing, oil 

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect Monardella linoides spp. viminea. 

Federal agencies also must consult with 

us if their activities may affect critical 

habitat. Designation of critical habitat, 

therefore, could result in an additional 

economic impact on small entities due 

to the requirement to reinitiate 

consultation for ongoing Federal 

activities. 

The economic analysis determined 

there will be no effects on small 

business because there are no 

reasonable foreseeable economic effects. 

In general, two different mechanisms 

in section 7 consultations could lead to 

additional regulatory requirements for 

the approximately four small 

businesses, on average, that may be 

required to consult with us each year 

regarding their project’s impact on 

Monardella linoides spp. viminea and 

its habitat. First, if we conclude, in a 

biological opinion, that a proposed 

action is likely to jeopardize the 

continued existence of a species or 

adversely modify its critical habitat, we 

can offer ‘‘reasonable and prudent 

alternatives’’. Reasonable and prudent 

alternatives are alternative actions that 

can be implemented in a manner 

consistent with the scope of the Federal 

agency’s legal authority and 

jurisdiction, that are economically and 

technologically feasible, and that would 

avoid jeopardizing the continued 

existence of listed species or result in 

adverse modification of critical habitat. 

A Federal agency and an applicant may 

elect to implement a reasonable and 

prudent alternative associated with a 

biological opinion that has found 

jeopardy or adverse modification of 

critical habitat. An agency or applicant 

could alternatively choose to seek an 

exemption from the requirements of the 

Act or proceed without implementing 

the reasonable and prudent alternative. 

However, unless an exemption were 

obtained, the Federal agency or 

applicant would be at risk of violating 

section 7(a)(2) of the Act if it chose to 

proceed without implementing the 

reasonable and prudent alternatives. 

Second, if we find that a proposed 

action is not likely to jeopardize the 

continued existence of a listed plant 

species, we may identify discretionary 

conservation recommendations 

designed to minimize or avoid the 

adverse effects of a proposed action on 

listed species or critical habitat, help 

implement recovery plans, or to develop 

information that could contribute to the 

recovery of the species. However, these 

recommendations are advisory only. 

Based on our experience with 

consultations under section 7 of the Act 

for all listed species, virtually all 

projects—including those that, in their 

initial proposed form, would result in 

jeopardy or adverse modification 

determinations in section 7 

consultations—can be implemented 

successfully with, at most, the adoption 

of reasonable and prudent alternatives. 

These measures, by definition, must be 

economically feasible and within the 

scope of authority of the Federal agency 

involved in the consultation. We can 

only describe the general kinds of 

actions that may be identified in future 

reasonable and prudent alternatives. 

These are based on our understanding of 

the needs of the species and the threats 

it faces, as described in the final listing 

rule (63 FR 54938) and this critical 

habitat designation. Within the final 

critical habitat units the types of Federal 

actions or authorized activities that we 

have identified as potential concerns 

are: 

(1) Regulation of activities affecting 

waters of the United States by the Corps 

under section 404 of the Clean Water 

Act; 

(2) Regulation of water flows, 

damming, diversion, and channelization 

implemented or licensed by Federal 

agencies; 

(3) Regulation of timber harvest, 

grazing, mining, and recreation by the 

U.S. Forest Service and BLM; 

(4) Road construction and 

maintenance, right-of-way designation, 

and regulation of agricultural activities; 

(5) Hazard mitigation and postdisaster repairs funded by the Federal 

Emergency Management Agency; and 

(6) Activities funded by the 

Environmental Protection Agency, U.S. 

Department of Energy, or any other 

Federal agency. 

It is likely that a developer or other 

project proponent could modify a 

project or take measures to protect 

Monardella linoides spp. viminea. The 

kinds of actions that may be included if 

future reasonable and prudent 

alternatives become necessary include 

conservation set-asides, management of 

competing nonnative species, 

restoration of degraded habitat, and 

regular monitoring. These are based on 

our understanding of the needs of the 

species and the threats it faces, as 

described in the final listing rule (63 FR 

54938) and proposed critical habitat 

designation (70 FR 67956). These 

measures are not likely to result in a 

significant economic impact to project 

proponents. 

In summary, we have considered 

whether this would result in a 

significant economic effect on a 

substantial number of small entities. We 

have determined, for the above reasons 

and based on currently available 

information, that it is not likely to affect 

a substantial number of small entities. 

Federal involvement, and thus section 7 

consultations, would be limited to a 

subset of the area designated. The most 

likely Federal involvement could 

include Corps permits, permits we may 

issue under section 10(a)(1)(B) of the 

Act, and Federal Highway 

Administration funding for road 

improvements. A regulatory flexibility 

analysis is not required. 

Small Business Regulatory Enforcement 

Fairness Act (5 U.S.C. 801 et seq.) 

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 


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is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination. 

Executive Order 13211 

On May 18, 2001, the President issued 

Executive Order 13211 on regulations 

that significantly affect energy supply, 

distribution, and use. Executive Order 

13211 requires agencies to prepare 

Statements of Energy Effects when 

undertaking certain actions. This final 

rule to designate critical habitat for 

Monardella linoides spp. viminea is not 

expected to significantly affect energy 

supplies, distribution, or use. Therefore, 

this action is not a significant energy 

action and no Statement of Energy 

Effects is required. 

Unfunded Mandates Reform Act (2 

U.S.C. 1501 et seq.) 

In accordance with the Unfunded 

Mandates Reform Act (2 U.S.C. 1501 et 

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, 

Tribal governments, or the private sector 

and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates’’. 

These terms are defined in 2 U.S.C. 

658(5)–(7). ‘‘Federal intergovernmental 

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or Tribal 

governments’’ with two exceptions. It 

excludes ‘‘a condition of Federal 

assistance’’. It also excludes ‘‘a duty 

arising from participation in a voluntary 

Federal program’’, unless the regulation 

‘‘relates to a then-existing Federal 

program under which $500,000,000 or 

more is provided annually to State, 

local, and Tribal governments under 

entitlement authority’’, if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. (At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement.) ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance; or (ii) a duty arising from 

participation in a voluntary Federal 

program’’. 

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities who receive Federal 

funding, assistance, permits or 

otherwise require approval or 

authorization from a Federal agency for 

an action may be indirectly impacted by 

the designation of critical habitat, the 

legally binding duty to avoid 

destruction or adverse modification of 

critical habitat rests squarely on the 

Federal agency. Furthermore, to the 

extent that non-Federal entities are 

indirectly impacted because they 

receive Federal assistance or participate 

in a voluntary Federal aid program, the 

Unfunded Mandates Reform Act would 

not apply; nor would critical habitat 

shift the costs of the large entitlement 

programs listed above on to State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. The designation of critical habitat 

imposes no obligations on State or local 

governments. As such, Small 

Government Agency Plan is not 

required. 

Federalism 

In accordance with Executive Order 

13132, the rule does not have significant 

Federalism effects. A Federalism 

assessment is not required. In keeping 

with DOI and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

California. The designation of critical 

habitat in areas currently occupied by 

Monardella linoides spp. viminea may 

impose nominal additional regulatory 

restrictions to those currently in place 

and, therefore, may have little 

incremental impact on State and local 

governments and their activities. The 

designation may have some benefit to 

these governments in that the areas that 

contain the features essential to the 

conservation of the species are more 

clearly defined, and the primary 

constituent elements of the habitat 

necessary to the conservation of the 

species are specifically identified. While 

making this definition and 

identification does not alter where and 

what federally sponsored activities may 

occur, it may assist these local 

governments in long-range planning 

(rather than waiting for case-by-case 

section 7 consultations to occur). 

Civil Justice Reform 

In accordance with Executive Order 

12988, the Office of the Solicitor has 

determined that the rule does not 

unduly burden the judicial system and 

meets the requirements of sections 3(a) 

and 3(b)(2) of the Order. We are 

designating critical habitat in 

accordance with the provisions of the 

Endangered Species Act. This final rule 

uses standard property descriptions and 

identifies the primary constituent 

elements within the designated areas to 

assist the public in understanding the 

habitat needs of Monardella linoides 

spp. viminea. 

Paperwork Reduction Act of 1995 (44 

U.S.C. 3501 et seq.) 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act. This rule will not 

impose recordkeeping or reporting 

requirements on State or local 

governments, individuals, businesses, or 

organizations. An agency may not 

conduct or sponsor, and a person is not 

required to respond to, a collection of 

information unless it displays a 

currently valid OMB control number. 

National Environmental Policy Act 

It is our position that, outside the 

Tenth Circuit, we do not need to 

prepare environmental analyses as 

defined by the NEPA in connection with 

designating critical habitat under the 

Endangered Species Act of 1973, as 

amended. We published a notice 

outlining our reasons for this 

determination in the Federal Register 

on October 25, 1983 (48 FR 49244). This 

assertion was upheld in the courts of the 

Ninth Circuit (Douglas County v. 

Babbitt, 48 F.3d 1495 (9th Cir. Ore. 

1995), cert. denied 116 S. Ct. 698 (1996). 


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Government-to-Government 

Relationship With Tribes 

In accordance with the President’s 

memorandum of April 29, 1994, 

‘‘Government-to-Government Relations 

with Native American Tribal 

Governments’’ (59 FR 22951), Executive 

Order 13175, and the Department of 

Interior’s manual at 512 DM 2, we 

readily acknowledge our responsibility 

to communicate meaningfully with 

recognized Federal Tribes on a 

government-to-government basis. We 

have determined that there are no Tribal 

lands occupied at the time of listing that 

contain the features essential for the 

conservation, and no Tribal lands that 

are unoccupied areas that are essential 

for the conservation, of Monardella 

linoides spp. viminea. Therefore, we 

have not designated critical habitat for 

M. l. spp. viminea on Tribal lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available upon 

request from the Field Supervisor, 

Carlsbad Fish and Wildlife Office (see 

ADDRESSES section). 

Author(s) 

The primary authors of this package 

are staff of the Carlsbad Fish and 

Wildlife Office. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

■ Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 

1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–

625, 100 Stat. 3500; unless otherwise noted. 

■ 2. In § 17.12(h), revise the entry for 

‘‘Monardella linoides ssp. viminea’’

under ‘‘FLOWERING PLANTS’’ to read 

as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historic range Family Status When listed Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Monardella linoides 

ssp.viminea.

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

* * * * * * * 

■ 3. In § 17.96(a), add critical habitat for 

Monardella linoides ssp. viminea in 

alphabetical order under Family 

Lamiaceae to read as follows: 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Lamiaceae: Monardella linoides 

ssp. viminea (willowy monardella) 

(1) Critical habitat is depicted for San 

Diego, California, on the map below. 

(2) The primary constituent elements 

of critical habitat for Monardella 

linoides ssp. viminea are the habitat 

components that provide: 

(i) Coarse, rocky, sandy alluvium on 

benches, stabilized sandbars, channel 

banks, sandy washes, and/or among 

boulders and stones, and/or in cracks of 

bedrock in rocky gorges along and 

within the ephemeral drainages that 

provide space for growth, reproduction, 

and dispersal; 

(ii) Ephemeral drainages where water 

flows only after peak seasonal rains and 

major flooding events that periodically 

scour riparian vegetation and 

redistribute alluvial material by eroding 

and developing stream channels, 

benches, sandbars, and rocky gorges, 

thus maintaining the necessary dynamic 

habitat processes for Monardella 

linoides spp. viminea; and 

(iii) Coastal sage, riparian scrub, or 

chaparral with an open and semi-open 

canopy and little or no herbaceous 

understory situated along ephemeral 

drainages and adjacent floodplains to 

ensure that Monardella linoides spp. 

viminea receives adequate sunlight for 

nutrient uptake for photosynthesis. 

(3) Critical habitat does not include 

manmade structures existing on the 

effective date of this rule and not 

containing one or more of the primary 

constituent elements, such as buildings, 

aqueducts, airports, and roads, and the 

land on which such structures are 

located. 

(4) Data layers defining the map unit 

were created on a base of USGS 7.5′ 

quadrangles, and the critical habitat unit 

was then mapped using a 100-meter grid 

to establish Universal Transverse 

Mercator (UTM) North American Datum 

27 (NAD 27) coordinates which, when 

connected, provided the boundaries of 

the unit. 

(5) Unit 1: Sycamore Canyon, 

consisting of private lands within the 

City of Santee, San Diego County, 

California. 

(i) From USGS 1:24,000 quadrangle 

San Vicente Reservoir, lands bounded 

by the following UTM NAD27 

coordinates (E, N): 501841,3640342; 

501821, 3640300; 501819, 3640294; 

501800, 3640274; 501743, 3640211; 

501719, 3640200; 501700, 3640200; 

501700, 3640192; 501645, 3640169; 

501600, 3640115; 501587, 3640100; 

501600, 3640100; 501600, 3640000; 

501700, 3640000; 501800, 3640000; 

501800, 3640009; 501844, 3640015; 

501900, 3640028; 501940, 3640038; 

501942, 3640017; 502000, 3640030; 

502100, 3640052; 502200, 3640074; 

502300, 3640096; 502301, 3640096; 

502319, 3640100; 502400, 3640118; 

502500, 3640140; 502600, 3640162; 

502614, 3640165; 502700, 3640184; 

502700, 3640117; 502667, 3640101; 

502666, 3640100; 502600, 3640071; 

502591, 3640067; 502530, 3640052; 

502500, 3640044; 502431, 3640025; 

502400, 3640012; 502369, 3640000; 

502300, 3639972; 502277, 3639963; 

502226, 3639968; 502202, 3639959; 

502200, 3639958; 502100, 3639922; 

502089, 3639918; 502000, 3639911; 

501900, 3639917; 501801, 3639920; 

501800, 3639920; 501701, 3639918; 

501700, 3639918; 501600, 3639924; 

501540, 3639927; 501552, 3639929; 

501552, 3639930; 501552, 3639939; 

501551, 3639974; 501551, 3640000; 

501551, 3640030; 501551, 3640036; 

501551, 3640041; 501551, 3640043; 

501551, 3640069; 501551, 3640100; 


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501550, 3640135; 501550, 3640183; 

501550, 3640200; 501550, 3640214; 

501550, 3640236; 501549, 3640295; 

501549, 3640300; 501600, 3640300; 

501600, 3640343; 501689, 3640345; 

501700, 3640344; 501800, 3640343; 

thence returning to 501841, 3640342. 

Lands bounded by the following UTM 

NAD27 coordinates (E, N): 501382, 

3639892; 501318, 3639846; 501300, 

3639838; 501243, 3639812; 501200, 

3639801; 501199, 3639800; 501168, 

3639786; 501112, 3639749; 501100, 

3639748; 501120, 3639764; 501162, 

3639800; 501177, 3639813; 501200, 

3639832; 501233, 3639860; 501238, 

3639861; 501279, 3639870; 501300, 

3639874; 501314, 3639877; 501321, 

3639879; 501331, 3639881; thence 

returning to 501382, 3639892. Lands 

bounded by the following UTM NAD27 

coordinates (E, N): 500864, 3639549; 

500842, 3639500; 500833, 3639419; 

500832, 3639400; 500827, 3639300; 

500822, 3639200; 500821, 3639185; 

500806, 3639117; 500800, 3639101; 

500800, 3639100; 500798, 3639096; 

500772, 3639000; 500745, 3638900; 

500744, 3638900; 500728, 3638852; 

500702, 3638808; 500700, 3638802; 

500699, 3638800; 500668, 3638700; 

500648, 3638637; 500630, 3638600; 

500626, 3638594; 500600, 3638565; 

500554, 3638515; 500530, 3638500; 

500524, 3638500; 500500, 3638515; 

500452, 3638545; 500454, 3638550; 

500465, 3638576; 500466, 3638579; 

500475, 3638600; 500477, 3638605; 

500500, 3638659; 500515, 3638695; 

500517, 3638700; 500541, 3638757; 

500559, 3638800; 500583, 3638857; 

500600, 3638898; 500601, 3638900; 

500606, 3638912; 500637, 3639000; 

500642, 3639013; 500664, 3639074; 

500673, 3639100; 500700, 3639176; 

500706, 3639193; 500707, 3639200; 

500718, 3639299; 500718, 3639300; 

500729, 3639400; 500732, 3639427; 

500733, 3639439; 500763, 3639464; 

500800, 3639495; 500806, 3639500; 

500823, 3639515; thence returning to 

500864, 3639549. 

(ii) Note: Map of Unit 1 (Map 1) 

follows: 


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Federal Register / Vol. 71, No. 216 / Wednesday, November 8, 2006 / Rules and Regulations 65683 

* * * * * Dated: October 25, 2006. 

David M. Verhey, 

Acting Assistant Secretary for Fish and 

Wildlife and Parks. 

[FR Doc. 06–9095 Filed 11–7–06; 8:45 am] 

BILLING CODE 4310–55–P 


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