[Federal Register Volume 72, Number 24 (Tuesday, February 6, 2007)]
[Proposed Rules]
[Pages 5552-5580]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-472]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



 Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Berberis nevinii (Nevin's barberry); Proposed Rule

Federal Register / Vol. 72, No. 24 / Tuesday, February 6, 2007 / 
Proposed Rules

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU84


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Berberis nevinii (Nevin's barberry)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for Berberis nevinii (Nevin's barberry) 
under the Endangered Species Act of 1973, as amended (Act). The 
proposal includes approximately 417 acres (ac) (169 hectares (ha)) of 
land in Riverside County, California, that meet the definition of 
critical habitat for B. nevinii. Of this, we propose to exclude 385 ac 
(156 ha) of non-Federal land from the final designation under section 
4(b)(2) of the Act, leaving a proposed final designation of 32 ac (13 
ha) of Federal land.

DATES: We will accept comments from all interested parties until April 
9, 2007. We must receive requests for public hearings, in writing, at 
the address shown in the ADDRESSES section by March 23, 2007.

ADDRESSES: If you wish to comment on the proposed rule, you may submit 
your comments and materials identified by RIN 1018-AU84, by any of the 
following methods:
    (1) You may send comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#a5c3d29dc6c3d2cac6cac8c8c0cbd1d6e5c3d2d68bc2cad3"><span class="__cf_email__" data-cfemail="1c7a6b247f7a6b737f7371717972686f5c7a6b6f327b736a">[email protected]</span></a>. Include ``RIN 1018-AU84'' in the subject line.
    (2) You may fax your comments to Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office at 760-431-9624.
    (3) You may mail or hand-deliver your written comments and 
information to Jim Bartel, Field Supervisor, Carlsbad Fish and Wildlife 
Office, 6010 Hidden Valley Road, Carlsbad, CA 92011.
    (4) You may submit your comments at the Federal eRulemaking Portal, 
http://www.regulations.gov. Follow the instructions for submitting 
comments.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the Carlsbad Fish and Wildlife Office at the above address 
(telephone 760-431-9440).

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office at the address or telephone number listed 
under ADDRESSES. Persons who use a telecommunications device for the 
deaf (TDD) may call the Federal Information Relay Service (FIRS) at 
800-877-8339, 7 days a week, 24 hours a day.

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited. Comments 
particularly are sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act (16 U.S.C. 1531 
et seq.), including whether the benefit of designation will outweigh 
any threats to the species due to designation;
    (2) Specific information on the amount and distribution of Berberis 
nevinii habitat; what habitat or habitat features are essential to the 
conservation of this species and why; and which areas occupied at the 
time of listing containing these features should be included in the 
critical habitat designation, and which areas not occupied at the time 
of listing but currently occupied should be included in the final 
designation, and why;
    (3) The geographical extent, number of plants, and/or reproductive 
status of native Berberis nevinii occurrences, particularly those in 
the Loma Linda Hills area (vicinity of San Timoteo Canyon and Scott 
Canyon) in San Bernardino County and those in western Riverside County 
(including in the vicinity of Vail Lake, the Agua Tibia Mountain 
foothills (Cleveland National Forest), in the Soboba Badlands east of 
the San Jacinto Wildlife Area, the Jurupa Hills area, and near 
Temecula);
    (4) Specific information on three historical Berberis nevinii 
records from Los Angeles County, two from the Arroyo Seco near Pasadena 
(CNDDB element occurrence 8 and 9) and one from the Big Tejunga Wash 
near San Fernando (CNDDB element occurrence 10), such as whether the 
species still exists in this area and where;
    (5) Whether any areas not currently known to be occupied by 
Berberis nevinii, but essential to the conservation of the species, 
should be included in the designation;
    (6) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (7) Information that demonstrates a species-specific pollinator-
plant relationship for Berberis nevinii; information on seed dispersal 
mechanisms and dispersal distance for Berberis nevinii; whether seed 
banks exist for this species and, if so, for how long and under what 
conditions; and whether such information should be applied to or 
considered a primary constituent element for the species;
    (8) Our proposed exclusion of Berberis nevinii habitat covered 
under the approved Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP) and whether the benefits of excluding these 
areas outweigh the benefits of their inclusion under section 4(b)(2) of 
the Act (see Relationship of Critical Habitat to Approved Habitat 
Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of the Act 
for details on the Western Riverside County MSHCP). If the Secretary 
determines the benefits of including these lands outweigh the benefits 
of excluding them, they will not be excluded from final critical 
habitat;
    (9) Additional information regarding management plans covering 
lands managed by the Bureau of Land Management (BLM) on Oak Mountain 
and by the United States Forest Service (USFS) on Cleveland National 
Forest, and whether these plans provide specific management for 
Berberis nevinii such that consideration of exclusion of these lands 
under section 4(b)(2) of the Act would be appropriate;
    (10) Any foreseeable economic, national security, or other 
potential impacts resulting from the proposed designation and, in 
particular, any impacts on small entities; and
    (11) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please include ``Attn: RIN 1018-AU84'' in your e-mail subject 
line and your name and return address in the body of your message. If 
you do not receive a confirmation from the system that we have received 
your Internet message, contact us directly by calling our Carlsbad Fish 
and Wildlife Office at phone number 760-431-9440. Please note that 
comments must be received by the date specified in the DATES section in 
order to be considered.

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    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their names and home addresses, etc., but if you wish us to consider 
withholding this information, you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of or officials of organizations or businesses, 
available for public inspection in their entirety.

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, 483 species, or 37 percent of the 1,311 listed species 
in the United States under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,311 
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 these measures may make the difference between extinction and 
survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluate the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 2004) 
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit court 
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 proposed critical habitat 
designation does not use the invalidated regulation in our 
consideration of the benefits of including areas. 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 designating 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 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 court-ordered 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 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

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on the biology and ecology of Berberis nevinii, refer to 
the final listing rule published in the Federal Register on October 13, 
1998 (63 FR 54956).

Species Description

    Berberis nevinii is a 3 to 13 foot (ft) (1 to 4 meter (m)) tall 
rhizomatous,

[[Page 5554]]

evergreen shrub in the barberry family (Berberidaceae) that is endemic 
to southern California. This species naturally occurs in scattered 
locations, ranging from the foothills of the San Gabriel Mountains in 
northern Los Angeles County, south and east to the Loma Linda Hills in 
southern San Bernardino County, and south to near the foothills of the 
Peninsular Ranges of southwestern Riverside County (63 FR 54958; 
California Natural Diversity Database (CNDDB) 2006). Berberis nevinii 
generally occurs between 900 and 2,000 ft (300 and 650 m) in elevation 
(63 FR 54958), with scattered occurrences found outside this elevation 
range (California Native Plant Society (CNPS) 2001, p. 96; CNDDB 2006). 
This species generally grows on sandy soils in low-gradient washes, 
alluvial terraces, and canyon bottoms, along gravelly wash margins, or 
on coarse soils on steep, generally north-facing slopes in association 
with the following plant communities: alluvial scrub, cismontane (e.g., 
chamise) chaparral, coastal sage scrub, oak woodland, and/or riparian 
scrub or woodland (Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 
54958; CNPS, 2001, p. 96; CNDDB 2006). While it is typically found 
growing on soils of sedimentary origin (Boyd 1987, p. 3), B. nevinii is 
also found on clay soils originating from gabbro bedrock and in 
association with metasedimentary substrates and springs or seeps (Soza 
2003).

Species Distribution

    Berberis nevinii appears never to have been common, even within its 
limited range (Neihaus 1977, p. 2; Mistretta and Brown 1989, p. 7). Its 
historic distribution probably consisted of fewer than 30 scattered 
occurrences in Los Angeles, San Bernardino, and Riverside Counties (63 
FR 54958), and possibly San Diego County (Neihaus 1977, p. 1; Reiser 
2001, unpaginated; CNDDB 2006). This species was first discovered in 
1882 in the San Fernando Valley near Los Angeles (Gray 1895, p. 69; 
Wolf 1940, unpaginated). This was likely one of the most extensive 
occurrences of the species consisting of approximately 100 plants 
scattered over 1 to 2 miles (1.6 to 3.2 kilometers (km)) of gravel 
washes southeast of the City of San Fernando (Wolf 1940, unpaginated). 
However, the species is presumed extirpated from this location (Boyd 
1987, p. 3).
    Berberis nevinii was introduced into horticulture around 1920 (Wolf 
1940, unpaginated) and was subsequently planted at numerous sites 
throughout the species' range (Boyd 1987, p. 2; Boyd and Banks 1995, 
unpaginated; Reiser 2001, unpaginated). The availability of B. nevinii 
in the nursery trade and the introduction of cultivated specimens into 
native habitats have contributed to confusion regarding the species'' 
native range. Table 1 summarizes our current understanding of B. 
nevinii's occurrence, origin, and status, by county, for records in the 
CNDDB (2006). Additional occurrence records not in the CNDDB, and 
therefore not included in Table 1, are discussed below.

 Table 1.--Known Occurrences of Berberis Nevinii in the California Natural Diversity Database (2006) and Status
                                                  by County \1\
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                                                   Extant,      Extant,
              County                 Extant,\2\   cultivated    unknown     Extirpated    Unknown     Other \5\
                                       native       origin       origin        \3\       Status \4\
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Los Angeles.......................            1            4            1            4            3            1
San Bernardino....................            2            0            0            2            0            0
Riverside.........................           16            1            1            0            0            1
San Diego.........................            0            1            0            0            0            1
                                   -----------------------------------------------------------------------------
    Total.........................           19            6            2            6            3            3
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\1\ Other records that are not in the California Natural Diversity Database (CNDDB) are discussed below.
\2\ Extant = still existing.
\3\ Extirpated = no longer existing.
\4\ Possibly extirpated or unknown status.
\5\ Location questionable and/or may be the same as another CNDDB record.

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

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

[[Page 5556]]

east of Vail Lake (e.g., Temecula Creek drainage, the hills between 
Temecula Creek and Wilson Creek), and the canyons draining Big Oak 
Mountain north of Vail Lake (Boyd et al. 1989, p. 16; Soza 2003).
    To summarize, native, extant occurrences of Berberis nevinii 
include a single individual in Lopez Canyon in the San Gabriel 
Mountains on the Angeles National Forest in Los Angeles County (CNDDB 
2006); a single individual on private land in Scott Canyon in the Loma 
Linda Hills south of Redlands in San Bernardino County (Boyd 1987, pp. 
5, 7); one or two individuals on private land in a side canyon off San 
Timoteo Canyon near the San Bernardino/Riverside County line (referred 
to herein as the San Timoteo Canyon occurrence) (Boyd 1987, pp. 5, 7; 
Latch 1997; Sanders 2006); an unknown number of individuals in the 
Soboba Badlands east of the San Jacinto Wildlife Area (Service 2004, p. 
331); and other scattered occurrences in Riverside County, including 
the largest remaining and most significant group of native occurrences 
in the Vail Lake/Oak Mountain area in southern Riverside County 
(Service 2004, p. 331; CNDDB 2006). This latter site has many scattered 
stands of B. nevinii, each with one or more individuals, collectively 
consisting of about 200 to 250 plants (Boyd et al. 1989, p. 14; 63 FR 
54958). The majority of the individuals in the Vail Lake/Oak Mountain 
area are located on private land to the south of the lake, with the 
largest stand on the Vail Lake peninsula (formerly a ridge separating 
Kolb Creek and Temecula Creek prior to the flooding of Vail Lake). Two 
plants on Big Oak Mountain north of Vail Lake are on BLM lands, and 
five plants occur southeast of Vail Lake on the Cleveland National 
Forest, close to the Agua Tibia Wilderness Area (herein referred to as 
the Cleveland National Forest occurrence) (63 FR 54956; CNDDB 2006).

Species Reproduction

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

Previous Federal Actions

    Berberis nevinii was listed as endangered by the State of 
California in January 1987, and federally listed as endangered on 
October 13, 1998 (63 FR 54956). In the final listing rule, we 
determined that the designation of critical habitat was not prudent 
because the designation would not be beneficial

[[Page 5557]]

to the conservation of the species. On August 10, 2004, the Center for 
Biological Diversity and the CNPS filed a lawsuit in U.S. Federal 
Court, Northern District of California against the Secretary of the 
Interior challenging the not prudent determination of critical habitat 
for B. nevinii and four other plant species that occur in southern 
California (Center for Biological Diversity et al. v. Gale Norton, 
Secretary of the Department of the Interior, C-04-3240 JL). On December 
21, 2004, a U.S. District Court Judge signed an order granting a 
stipulated settlement agreement between the parties. The Service agreed 
to propose critical habitat for B. nevinii, if prudent, on or before 
January 30, 2007, and finalize the designation on or before January 30, 
2008. We are hereby withdrawing our previous not prudent determination 
of critical habitat for B. nevinii. We have reconsidered our not 
prudent finding, and now believe that identification of primary 
constituent elements and essential areas (critical habitat designation) 
may provide educational information to individuals, local and State 
governments, and other entities. We also do not have any documentation 
that over-collection has increased significantly since the species was 
listed. We now believe that the benefits of identifying essential 
habitat for B. nevinii outweigh the potential risk of over-collection 
and thus we are now proposing critical habitat for this species.
    A recovery plan for Berberis nevinii has not yet been completed. 
For more information on previous Federal actions concerning B. nevinii, 
refer to the final listing rule published in the Federal Register on 
October 13, 1998 (63 FR 54956).

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 that 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.
    Critical habitat receives protection under section 7(a)(2) 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(a)(2) 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(a)(2) 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 area occupied by the species 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 considerations or protection. Areas outside of the 
geographic area occupied by the species at the time of listing may only 
be included in critical habitat if they 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 that 
was 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 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 and commercial 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

[[Page 5558]]

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.

Methods

    As required by section 4(b)(2) of the Act, we used the best 
scientific data available in determining areas that contain the 
features essential to the conservation of Berberis nevinii. This 
included information from the following sources: (1) Final listing rule 
(63 FR 54956, October 13, 1998); (2) CNDDB (2006); (3) California 
Native Species Field Survey Forms submitted to the CDFG; (4) herbarium 
collection records from the Consortium of California Herbaria and 
Rancho Santa Ana Botanic Garden; (5) Western Riverside County MSHCP; 
(6) botanical assessments and inventories of southern California; (7) 
management documents and survey/monitoring reports for B. nevinii on 
U.S. Forest Service land; (8) technical reports prepared by the Rancho 
Santa Ana Botanic Garden; (9) communications from species experts; (10) 
aerial photography; and (11) regional Geographic Information System 
(GIS) layers for land ownership, soils, and vegetation (California 
Wildlife Habitat Relationships (CWHR) System). We also used information 
collected by Service biologists who conducted site visits to Big Oak 
Mountain (CNDDB element occurrence 38) and the Cleveland National 
Forest (CNDDB element occurrence 31).
    We have also reviewed available information that pertains to the 
habitat requirements of Berberis nevinii. There is limited information 
on habitat requirements for this species, but the primary sources are: 
(1) CNDDB (2006); (2) California Native Species Field Survey Forms 
submitted to CDFG; (3) habitat parameters compiled by Boyd (Rancho 
Santa Ana Botanic Garden) based on the results of a field survey by 
Nishida (Rancho Santa Ana Botanic Garden technical report No. 3 (1987, 
p. 7)); (4) botanical assessment of the Vail Lake property for the 
Riverside County Planning Department (1989) and of Cleveland National 
Forest (1995); (5) monitoring data and reports for the Angeles National 
Forest (Soza and Boyd 2000 and Soza and Fraga 2003); (6) information 
from regional GIS layers for soils, vegetation, and percent slope 
values; and (7) information received from local species experts, 
including descriptions of suitable habitat by the USFS (Soza 2003) that 
were based on the expertise and extensive field experience of Boyd 
(Rancho Santa Ana Botanic Garden). A variety of other peer-reviewed and 
non-peer-reviewed articles were reviewed for background information on 
plant ecology, natural history, and biology, as well as plant response 
to fire and other disturbances in California shrubland (e.g., 
chaparral) communities.

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 propose as critical 
habitat, we consider those physical or biological features (PCEs) that 
are essential to the conservation of 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 specific primary constituent elements required for Berberis 
nevinii are derived from the biological needs of the species as 
described in the final listing rule (63 FR 54956, October 13, 1998), as 
well as information contained in this proposed rule.

Space for Growth and Reproduction

    Berberis nevinii has a limited natural distribution; it typically 
occurs in small stands (less than 20 individuals, and often only one or 
two) in scattered locations in Los Angeles, San Bernardino, and 
Riverside Counties, with the largest native occurrence (as defined by 
CNDDB) consisting of several stands and totaling about 134 individuals 
to the south of Vail Lake in Riverside County (Boyd 1987; CNDDB 2006). 
Within these areas, B. nevinii requires appropriate soils, topography, 
cover, and drainage within the landscape to provide space, food, water, 
air, light, minerals, or other nutritional or physiological 
requirements for individual and population growth and reproduction.
    Characterizing Berberis nevinii habitat is difficult due to the 
varied soils, bedrock substrates, and topography on which this species 
naturally occurs. Additionally, this species is known to tolerate a 
wide range of environmental conditions in cultivation (Mistretta and 
Brown 1989, p. 6). Berberis nevinii typically occurs at elevations from 
900 to 2,000 ft (300 to 650 m) (63 FR 54958), but most native 
occurrences and the naturalized San Francisquito population are between 
1,400 and 1,700 ft (427 to 518 m) in elevation (Boyd 1987, p. 2; CNDDB 
2006). One native occurrence on the Big Oak Mountain summit north of 
Vail Lake in Riverside County is at approximately 2,700 ft (823 m) 
elevation, and scattered naturalized occurrences are found outside the 
900 to 2,000-foot (300 to 650 m) elevation range (Boyd 1987, pp. 42, 
75; CNDDB 2006). Berberis nevinii has been found in varied topography 
from nearly flat sandy washes, terraces, benches, and canyon floors to 
gravelly wash margins, steeply-sloped banks of drainages, steep rocky 
slopes, ridges, and mountain summits (CNDDB 2006).
    Based on 1987 field surveys by Nishida, native Berberis nevinii 
occurring on slopes in Scott Canyon and south of Vail Lake were found 
in areas with slopes of 35 to 70 percent slope (Boyd 1987, pp. 7, 45, 
62, 65, 68). Other B. nevinii plants occurring on slopes in the Vail 
Lake/Oak Mountain area generally occupy areas of less than 70 percent 
slope, based on Service GIS data (2006). Naturalized (i.e., nonnative) 
occurrences are known to grow on steeper slopes (e.g., 85 to 120 
percent slope) in San Francisquito Canyon (Boyd 1987, p. 7, based on 
field surveys by Nishida). Berberis nevinii generally occurs on north, 
northeast, or northwest-facing slopes; however, exceptions to this have 
been noted, including several occurrences, both native and naturalized, 
found on south and west-facing slopes (Boyd 1987, pp. 7, 40, 77; Boyd 
et al. 1989, p. 24; Soza and Boyd 2000, p. 22; CNDDB 2006).
    Berberis nevinii is found on a variety of soils and bedrock 
substrates. Native occurrences appear to be strongly associated with 
alluvial soils or soils derived from nonmarine sedimentary based 
substrates, especially sandy arkose (sandstone derived from granitic 
material) (Boyd 1987, p. 7; Boyd and Banks 1995, unpaginated; Soza and 
Boyd 2000, p. 25). Most of the plants at Vail Lake are found in small 
stands on Temecula arkose soils around the southern end of the lake, 
with scattered individuals in the ``badlands'' to the southeast and 
southwest (Boyd and Banks 1995, unpaginated). Several small, isolated 
stands on the south flank of Big Oak Mountain are associated with 
metasedimentary substrates and springs or seeps (Boyd et al. 1989, p. 
14; Soza 2003), and two plants at the Big Oak Mountain summit occur on 
heavy adobe/gabbro type soils with high water-holding capacity formed 
from metavolcanic geology (Mesozoic basic

[[Page 5559]]

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

[[Page 5560]]

be pollinated by bee species. According to Mussen (2002), California's 
native Berberis species are ``visited (and probably pollinated) by 
honey bees'' (Apis mellifera), and according to the U.S. Department of 
Agriculture (2006), native Berberis species ``provide significant 
forage for native bees.'' We also do not know if B. nevinii is able to 
self-fertilize, as the genus Berberis contains species that are both 
self-compatible and self-incompatible (Anderson et al. 2001, p. 227). 
Seed dispersal by both birds and mammals is widespread within the genus 
Berberis (Young and Young 1992, p. 52; Vines 1960, pp. 271-273), and 
thus is likely within B. nevinii. Wolf (1940, unpaginated) noted that 
the abundant fruits of B. nevinii are eaten by various bird species. 
Seasonal rains flowing through washes and channel drainages may also 
disperse seed of B. nevinii located in these areas (Roof 1968, p. 22; 
Mistretta and Brown 1989, p. 6; Soza and Boyd 2000, p. 3). However, due 
to the lack of specific information on habitat requirements for B. 
nevinii related to pollination and seed dispersal, we were unable to 
fully incorporate these potential areas into our identification of 
essential habitat for the species.
    Berberis nevinii does not appear to reproduce by vegetative means 
(rootsprout) to any great extent (Mistretta and Brown 1989, p. 5; Boyd 
2006); in other words, it does not regularly produce clones 
(genetically identical direct descendants) that are well separated from 
the parent individual through the process of rooting at nodes in the 
rhizome, as is the case with some other members of the genus Berberis. 
One potential exception is an (extirpated) occurrence south of Redlands 
in San Bernardino County, which appeared to be reproducing only by 
vegetative spread (Sanders 2006). Because vegetative reproduction 
appears to be uncommon, Mistretta and Brown (1989, p. 5) concluded that 
perpetuation of the species is likely dependent on its occasional 
production of viable seed.

Landscape Ecology and Population Demographics of Berberis nevinii

    Many extant occurrences of Berberis nevinii are associated with 
chaparral or coastal sage scrub. Fire is a natural occurrence in 
southern California shrublands, and plants occurring in these 
vegetation communities are resilient and/or adapted to these types of 
disturbances (Keeley 1991, p. 84; Tyler 1996, p. 2182). Postfire 
regeneration mechanisms among California shrubland species can 
generally be described as obligate seeding, obligate sprouting, or 
facultative sprouting (Kelly and Parker 1990, p. 114). Obligate seeders 
are typically killed by fire and rely entirely on seeds for 
regeneration. Most have locally dispersed seeds that persist in the 
soil seed bank until dormancy is broken by an environmental stimulus, 
such as intense heat (Keeley 1991, p. 82). Obligate sprouters, on the 
other hand, are rarely killed by fire, but rather resprout from roots, 
lignotubers, or epicormic buds (Kelly and Parker 1990, p. 114). These 
species have seeds that do not require fire for germination, but 
require fire-free periods for recruiting new seedlings (Keeley 1991, p. 
82). In some species, postfire regeneration occurs by both sprouts and 
seeds, and fire-caused mortality is variable (facultative sprouters) 
(Kelly and Parker 1990, p. 114).
    Berberis nevinii is known to regenerate by stump sprouting 
following fire (Soza and Fraga 2003, p. 2; Sanders 2006; Mistretta and 
Brown 1989, p. 5). Mature individuals often possess a basal burl 
(Mistretta and Brown 1989, p. 5), a swelling at the junction of roots 
and stems that allows a plant to sprout from the base and regenerate 
after a fire that kills above-ground vegetation. The germination 
response of B. nevinii to fire is not known. According to Soza and Boyd 
(2003, p. 2), Soza (2006), and the USFS (2005, p. 237), post-fire 
surveys on the Angeles and Cleveland National Forests found recruitment 
from both resprouting and seeding. This suggests that this species may 
also regenerate by seed following fire. Berberis nevinii's response to 
altered fire regimes (e.g., changes to fire frequency, timing, and/or 
intensity) is also unknown (63 FR 54961), such as resprouting response 
and soil seedbank persistence under conditions of high fire frequency. 
Because southern California shrublands are adapted to a natural fire 
regime, plants within these communities likely require such conditions 
for long-term survival (63 FR 54961).
    Comparison of the contemporary fire regime in southern California 
to that of the natural regime (i.e., pre-fire suppression) shows that 
in the lower coastal valley and foothill zone, fire frequency has 
increased, and that high fire frequencies tend to occur in those areas 
where high human densities interface with relatively undeveloped 
landscape (Keeley et al. 1999, p. 1831; Keeley and Fotheringham 2001, 
p. 1545; Wells et al. 2004, p. 147; Keeley 2006, p. 382). However, fire 
suppression has kept fires in check so that most stands burn within the 
range of natural variation (Keeley 2006, p. 382). Additionally, while 
coastal sage scrub and chaparral have the largest amount of area that 
has burned multiple times over the past century and have the highest 
potential fire frequencies of all vegetation community types, only the 
former clearly shows an increasing trend in area burned over this time 
period (Wells et al. 2004, pp. 148, 151).
    Too frequent fire on the landscape could potentially kill mature, 
resprouting Berberis nevinii as well as young plants before they have 
reached their reproductive potential and before the soil seed bank is 
replenished (Boyd 1991, pp. 7, 9). Repeated burnings over short 
intervals could eventually lead to type conversion of chaparral/
shrublands to nonnative annual grassland (Boyd 1991, p. 9; Keeley et 
al. 1999, p. 1831), as has been observed in areas surrounding urban 
centers (Keeley 2006, p. 382). Therefore, conservation of rare plants 
in southern California, such as B. nevinii, that are associated with 
chaparral, coastal sage scrub, or other shrubland vegetation 
communities may require preservation of enough land around known 
occurrences to allow for maintenance of natural fire regimes (Boyd 
1991, pp. 10-11). However, we do not have sufficient information to 
quantify the extent of the area necessary to do so for particular B. 
nevinii occurrences. Therefore, we are unable to fully incorporate 
these potential areas into our identification of essential habitat for 
B. nevinii.
    Life history characteristics and population demographics of 
Berberis nevinii are largely unknown and unstudied. Berberis nevinii is 
a long-lived species (>50 years) (Mistretta and Brown 1989, p. 5) with 
low reproductive rates in the wild due to sporadic production of 
fertile seed (Mistretta and Brown 1989, p. 5). It has been suggested 
that B. nevinii may be a paleoendemic relic (Reiser 2001, unpaginated), 
which could explain its limited (small and widely scattered) 
distribution and low reproductive rates in the wild (Soza 2003).
    The ability of Berberis nevinii to stump sprout following 
disturbance (e.g., fire), as well as its great longevity, may play an 
important role in persistence of the species. As discussed in Garcia 
and Zamora (2003, p. 921), there may be a population maintenance trade-
off for long-lived plants between replacement of individuals by seeding 
and persistence of established plants. A persistence strategy may allow 
plants to survive through unfavorable conditions, potentially to 
reproduce again when conditions are more favorable (Garcia and Zamora 
2003, p. 924). As

[[Page 5561]]

mentioned previously, there appears to be little to no regeneration by 
seed occurring at most B. nevinii occurrences. However, since the 
species is long-lived, it may produce seed intermittently and life-time 
seed production may be a more important consideration in terms of 
perpetuation of the species than annual seed production.

Primary Constituents Elements for Berberis nevinii

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

[[Page 5562]]

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

[[Page 5563]]

the time of listing and contain sufficient primary constituent elements 
(PCEs) to support life history functions essential for the conservation 
of the species. No areas outside the geographical area occupied at the 
time of listing have been proposed for designation. Additionally, 
information provided in comments on the proposed critical habitat 
designation and draft economic analysis will be evaluated and 
considered in the development of the final designation for B. nevinii.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed 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. We often exclude non-
Federal 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 because the 
benefits of exclusion outweigh the benefits of inclusion as discussed 
in section 4(b)(2) of the Act. All of the private land included in this 
proposed critical habitat designation is in the vicinity of Vail Lake 
and Oak Mountain and is covered by the Western Riverside County MSHCP. 
We are proposing to exclude private lands covered under the MSHCP from 
the final designation of critical habitat for Berberis nevinii because 
we believe that the benefits of exclusion outweigh the benefits of 
inclusion (See Relationship of Critical Habitat to Approved Habitat 
Conservation Plans (HCPs)--Exclusion Under Section 4(b)(2) of the Act 
section for more details on the Western Riverside County MSHCP and a 
complete discussion and analysis of the benefits of exclusion and 
inclusion of these lands in the critical habitat designation).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain primary 
constituent elements that may require special management considerations 
or protection. As stated in the final listing rule (63 FR 54956, 
October 13, 1998), threats to the species include urban development, 
off-road vehicle use, human recreation (e.g., horseback riding), 
highway projects, fire management strategies (suppression measures, 
brush clearing) that alter natural fire processes to which native plant 
communities are adapted and which they require for long-term survival, 
and the introduction of invasive, nonnative plants that may compete 
with Berberis nevinii and/or contribute to combustible fuel loads (63 
FR 54961). These threats can directly or indirectly result in the loss, 
modification, degradation, and/or fragmentation of B. nevinii habitat, 
thereby eliminating or reducing potential habitat for seed germination, 
seedling establishment, plant growth and maturation, and/or population 
growth. Individually or combined, these threats may require special 
management considerations or protection of the PCEs as addressed here 
and in more detail within the individual critical habitat unit 
descriptions that follow.
    Urbanization, flood control measures, road widening, and habitat 
degradation from extensive recreational use have contributed to the 
loss of Berberis nevinii habitat and have apparently resulted in the 
extirpation of several occurrences, particularly within the San 
Fernando Valley of Los Angeles County (63 FR 54961). Urbanization may 
destroy, degrade, fragment, or otherwise alter the topography, soil, 
and vegetation community structure in ways that make areas less 
suitable for B. nevinii. Land grading for residential development and 
road projects may affect the topography of the site (PCE 1); alter soil 
composition and structure (PCE 2); change vegetation community 
composition and structure through clearing or thinning of vegetation 
and the introduction of nonnative plants (PCE 3); increase erosion 
potential (PCE 1 and 2); and change hydrological (drainage and water 
infiltration) patterns, thereby decreasing the quality and extent of 
available habitat for B. nevinii. Additionally, urban development near 
this species may increase the frequency of fire. No urban development 
is expected to directly impact the known occurrences of B. nevinii on 
Federal or private land in the vicinity of Vail Lake and Oak Mountain, 
although indirect impacts associated with increased urbanization may 
occur.
    Recreational activities may also impact the physical and biological 
features determined to be essential for conservation of the species by 
destroying, degrading, fragmenting, or otherwise altering the 
topography, soil, and vegetation community in ways that make areas less 
suitable for Berberis nevinii. For example, off-highway vehicle use, 
hiking, camping, horseback riding, and recreational facility 
development in or near B. nevinii occurrences could alter or destroy 
surface and subsurface structure through trampling and clearing or 
thinning of vegetation, and the introduction of nonnative plants (PCE 
3), soil disturbance and/or compaction (PCE 2), and increased erosion 
and changes to hydrological (drainage and water infiltration) patterns, 
which may in turn affect the topography, soil, and vegetation of the 
site (PCE 1, 2, and 3).
    Activities associated with fire management, such as fuel 
treatments, prescribed burns, and wildfire suppression, may also impact 
the physical and biological features essential for conservation of the 
species. The creation of firebreaks, brush clearing or thinning, and 
the use of heavy equipment and off-road vehicles for fire management 
could physically remove or disturb soils and alter soil composition 
(PCE 2), remove or destroy vegetation (PCE 3), increase erosion, and 
alter the topography (PCE 1) and hydrologic patterns in or near 
Berberis nevinii occurrences. Fire management activities could 
facilitate the incursion or spread of invasive, nonnative plants by 
potentially creating (disturbance) conditions that increase the 
competitive edge of nonnative species over native species, thereby 
altering the composition of the vegetation community (PCE 3). 
Prescribed fires that are too frequent or that occur at times of the 
year atypical of the natural fire regime could also result in changes 
to vegetation community and structure (PCE 3). Alternatively, if fire 
management activities are successful in keeping fire from the 
landscape, and high canopy cover ensues, plant species that require 
full or partial sun (i.e., canopy gaps) to effectively establish may 
become underrepresented in the plant community, as will those plants 
that require fire for seed germination.

Proposed Critical Habitat Designation

    We are proposing one unit as critical habitat for Berberis nevinii: 
the Agua Tibia/Vail Lake unit. This critical habitat unit is further 
divided into six subunits. The critical habitat unit and subunits 
described below constitute our best assessment at this time of areas 
that: (1) Have extant, native occurrences consisting of more than two 
B. nevinii plants with evidence of reproduction; and (2) contain some 
or all of the primary constituent elements that may require special 
management considerations or protection. All of these units were 
occupied at the time of listing and are currently occupied to the best 
of our knowledge. Table 2 identifies the approximate area (ac/ha) of 
proposed critical habitat for B. nevinii, and the areas being 
considered for

[[Page 5564]]

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

 Table 2.--Areas Proposed for Critical Habitat Designation for Berberis Nevinii, and Areas Being Considered for
             Exclusion From the Final Critical Habitat Designation Under Section 4(b)(2) of the Act.
----------------------------------------------------------------------------------------------------------------
                                                                                     Area being considered for
       Critical habitat unit             Land ownership        Area proposed as    exclusion from final critical
                                                               critical habitat               habitat
----------------------------------------------------------------------------------------------------------------
1. Agua Tibia/Vail Lake:
    1A. Big Oak Mountain Summit....  BLM..................  15 ac (6 ha).........  0 ac (0 ha)
    1B. Agua Tibia Mountain          USFS.................  17 ac (7 ha).........  0 ac (0 ha)
     Foothills.                      Private..............  5 ac (2 ha)..........  5 ac (2 ha)
    1C. South Flank Big Oak          Private..............  87 ac (35 ha)........  87 ac (35 ha)
     Mountain.
    1D. North of Vail Lake.........  Private..............  22 ac (9 ha).........  22 ac (9 ha)
    1E. South of Vail Lake/          Private..............  251 ac (102 ha)......  251 ac (102 ha)
     Peninsula.
    1F. Temecula Creek East........  Private..............  20 ac (8 ha).........  20 ac (8 ha)
                                                           -----------------------------------------------------
        Total......................  .....................  417 ac (169 ha)......  385 ac (156 ha)
----------------------------------------------------------------------------------------------------------------


                 Table 3.--Occupancy of Critical Habitat Units Designated for Berberis nevinii.
----------------------------------------------------------------------------------------------------------------
                                                                                                       Acres
      Critical habitat subunit        Occupied at time of listing?      Occupied  currently?        (hectares)
----------------------------------------------------------------------------------------------------------------
Subunit 1A: Big Oak Mountain Summit.  Yes.........................  Yes.........................          15 (6)
Subunit 1B: Agua Tibia Mountain       Yes.........................  Yes.........................          22 (9)
 Foothills.
Subunit 1C: South Flank Big Oak       Yes.........................  Yes.........................         87 (35)
 Mountain.
Subunit 1D: North of Vail Lake......  Yes.........................  Yes.........................          22 (9)
Subunit 1E: South of Vail Lake/       Yes.........................  Yes.........................       251 (102)
 Peninsula.
Subunit 1F: Temecula Creek East.....  Yes.........................  Yes.........................          20 (8)
�������������������������������������
----------------------------------------------------------------------------------------------------------------

    Below, we present brief descriptions of the proposed subunits and 
reasons why they meet the definition of critical habitat for Berberis 
nevinii.

Unit 1: Agua Tibia/Vail Lake

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

[[Page 5565]]

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

[[Page 5566]]

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

[[Page 5567]]

species (CNDDB 2006). This subunit may be important for conserving B. 
nevinii as it is one of several relatively large occurrences in the 
Vail Lake area, and thus has a greater potential for regeneration by 
seed. Berberis nevinii occupied this subunit at the time of listing, as 
identified in the final listing rule (63 FR 54956, October 13, 1998).
    The primary threats to Berberis nevinii habitat in this area that 
may require special management considerations or protection of the PCEs 
are the indirect effects of urban/residential development, such as 
increased human recreation; erosion; incursion or spread of invasive, 
nonnative plants; and changes to the natural fire regime (i.e., 
increased ignitions and fire frequency and shortened fire return 
intervals) that can lead to type conversion of shrublands to annual 
grasslands.
    This site falls within the Conservation Area for the Western 
Riverside County MSHCP, and we are proposing to exclude the private 
lands within this subunit from the final designation of critical 
habitat for B. nevinii. Please see Relationship of Critical Habitat to 
Approved Habitat Conservation Plans (HCPs)--Exclusion Under Section 
4(b)(2) of the Act--Western Riverside County Multiple Species Habitat 
Conservation Plan for a detailed discussion.

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 (see Gifford Pinchot 
Task Force v. U.S. Fish and Wildlife Service, 378 F.3d 1059 (9th Cir 
2004) and Sierra Club v. U.S. Fish and Wildlife Service et al., 245 
F.3d 434, 442F (5th Cir 2001)). 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 proposed species 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 because 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 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 instances where a new 
species is listed or critical habitat is subsequently designated that 
may be affected and the Federal agency has retained discretionary 
involvement or control 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

[[Page 5568]]

adversely modify or destroy proposed critical habitat.
    Federal activities that may affect Berberis nevinii 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 
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 Berberis nevinii and Its Critical Habitat

Jeopardy Standard
    The Service applies an analytical framework for Berberis nevinii 
jeopardy analyses that relies heavily on the importance of core area 
populations to the survival and recovery of B. nevinii. 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 Berberis nevinii 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 the intended conservation role for 
the species. Generally, the conservation role of Berberis nevinii 
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 Berberis nevinii is appreciably reduced. 
Activities that, when carried out, funded, or authorized by a Federal 
agency, may affect critical habitat and therefore should result in 
consultation for B. nevinii include, but are not limited to:
    (1) Activities that would directly or indirectly impact Berberis 
nevinii habitat and its PCEs. Such activities could include, but are 
not limited to: Residential or commercial development; fire prevention 
and suppression activities, such as the creation of firebreaks and 
brush clearing or thinning; off-road vehicle use; heavy recreational 
use; placement of recreational trailheads and facilities; road 
development, maintenance, or improvement projects, such as road 
grading, widening, or realignment; and flood control projects, such as 
vegetation stripping. These activities could change the physical and 
biological features of the habitat by affecting the topography of the 
site; by physically removing or damaging soils and associated 
vegetation; by altering the natural hydrology of the area; and by 
introducing and facilitating the spread of invasive, nonnative plant 
species.
    (2) Activities that would alter fire frequency in areas occupied by 
Berberis nevinii. Such activities could include, but are not limited 
to, prescribed burns that are too frequent or poorly timed. These 
activities could reduce the ability of B. nevinii to grow and reproduce 
by altering soil and vegetation community structure and composition 
(e.g., type conversion of shrublands into grasslands).
    (3) Activities that would foster the introduction or spread of 
nonnative vegetation. These activities could include, but are not 
limited to: Seeding areas with nonnative species following a fire; 
planting nonnative species or using non-weed free hay straw for slope, 
bank, and soil erosion control; and ground-disturbing activities, such 
as road maintenance, improvement, or construction projects. These 
activities could reduce the ability of Berberis nevinii to grow and 
reproduce because nonnative plant species may crowd out or otherwise 
compete with B. nevinii. Additionally, an increase in nonnative plants 
could change the fire regime by creating conditions prone to frequent 
fire (e.g., increased fuel loads and continuous fuel beds) and by 
altering soil composition.
    All lands proposed as critical habitat for Berberis nevinii, 
including those that have been proposed for exclusion from the final 
designation, contain features essential to conservation of the species. 
All of the subunits proposed for designation are within the 
geographical range of the species, were known to be occupied at the 
time of listing, and are currently occupied by B. nevinii. Federal 
agencies already consult with us on activities in areas occupied by B. 
nevinii, and if the species may be affected by the action, to ensure 
that their actions do not jeopardize the continued existence of B. 
nevinii.
Exclusions Under Section 4(b)(2) of the Act
    There are multiple ways to provide protection and management for 
species' habitat. Statutory and regulatory frameworks that exist at a 
local level can provide such protection and management, as can lack of 
pressure for change, such as areas too remote for anthropogenic 
disturbance. Finally, State, local, or private management plans as well 
as management under Federal agencies' jurisdictions can provide 
protection and management that may lessen or even eliminate any 
appreciable benefit to a designation of critical habitat. When we 
consider a plan to determine its adequacy in protecting habitat, we 
consider whether the plan, as a whole will provide the same level of 
protection that designation of critical habitat would provide. The plan 
need not lead to exactly the same result as a designation in every 
individual application, as long as the protection it provides is 
equivalent, overall. In making this determination, we examine whether 
the plan provides management, protection, or enhancement of the PCEs 
that is at least equivalent to that provided by a critical habitat 
designation, and whether there is a reasonable expectation that the 
management, protection, or enhancement actions will continue into the 
foreseeable future. Each review is particular to the species and the 
plan, and some plans may be adequate for some species and inadequate 
for others.

[[Page 5569]]

    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 Congressional record is clear that the Secretary is 
afforded broad discretion regarding which factor(s) to use and how much 
weight to give to any factor.
    Under section 4(b)(2) of the Act, 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. In addition, the Service is conducting an 
economic analysis of the impacts of the proposed critical habitat 
designation and related factors, which will be available for public 
review and comment. Based on public comment on that document, the 
proposed designation itself, and the information in the final economic 
analysis, additional areas beyond those identified in this assessment 
may be excluded from critical habitat by the Secretary under the 
provisions of section 4(b)(2) of the Act. This is provided for in the 
Act, and in our implementing regulations at 50 CFR 242.19.
Conservation Partnerships on Non-Federal 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 (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 cooperative conservation. This is evident in Service 
programs such as HCPs, Safe Harbors Agreements, Candidate Conservation 
Agreements, Candidate Conservation Agreements with Assurances, 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 well-intentioned 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 (such 
as 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 of the Interior's cooperative conservation policy 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 cooperative-conservation 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 Habitat 
Conservation Plans.
    Conservation agreements with non-Federal landowners (e.g., HCPs, 
contractual conservation agreements, easements, and stakeholder-
negotiated State regulations) enhance species conservation by extending 
species protections beyond those available through section 7(a)(2) 
consultations. In the past decade, we have encouraged non-Federal 
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).
Exclusions Under Section 4(b)(2) of the Act for Berberis nevinii
    After consideration under section 4(b)(2) of the Act, we are 
proposing to exclude the following areas from critical habitat for 
Berberis nevinii: private lands covered by the Western Riverside County 
MSHCP, which includes five ac (2 ha) of the Agua Tibia Mountain 
Foothills subunit (1B), and all of the South Flank Big Oak Mountain 
subunit (1C) (87 ac (35 ha)), North of Vail Lake subunit (1D) (22 ac 
(9ha)), South of Vail Lake/Peninsula subunit (1E) (251 ac (102 ha)), 
and Temecula Creek East subunit (1F) (20 ac (8ha)). We believe that: 
(1) The private lands' value for

[[Page 5570]]

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

[[Page 5571]]

proposing to exclude these lands under section 4(b)(2) of the Act.

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 pursuant to section 7(a)(2) 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(a)(2) 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 mandatory 
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 the 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 Task Force v. U.S. Fish and Wildlife 
Service, 378 F.3d 1059 (9th Cir 2004) (hereinafter 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 currently-occupied 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(a)(2) 
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(a)(2) consultations only commit Federal 
agencies to prevent adverse modification to critical habitat caused by 
the particular project, and they are not committed to provide 
conservation or long-term benefits to areas not 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 Berberis nevinii. 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 proposing in this rule because these areas 
are included in this proposed rule as having habitat containing the 
features essential to the conservation of the species. Consequently, we 
believe that the informational benefits are already provided. 
Additionally, the purpose normally served by the designation, that of 
informing State agencies and local governments about areas that would 
benefit from protection and enhancement of habitat for Berberis 
nevinii, is already well established among State and local governments 
and Federal agencies in those areas that we proposing to exclude 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.

Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans From Critical Habitat

    The benefits of excluding lands with HCPs or other approved 
management plans 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. Many conservation plans 
also provide conservation benefits to unlisted sensitive species. 
Imposing an additional regulatory review as a result of the designation 
of critical habitat may undermine these conservation efforts and 
partnerships designed to proactively protect species to ensure that 
listing under the Act will not be necessary. 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

[[Page 5572]]

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. In fact, 
designating critical habitat in areas covered by a pending HCP or 
conservation plan could result in the loss of some conservation 
benefits to the species if participants abandon the planning process, 
in part because of the strength of the perceived additional regulatory 
compliance that such designation would entail. 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.
    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, an HCP or NCCP/HCP application must itself be 
consulted upon, even without the critical habitat designation. Such a 
consultation would review the effects of all activities covered by the 
HCP that might adversely impact the species under a jeopardy standard, 
including possibly significant habitat modification (see definition of 
``harm'' at 50 CFR 17.3). In addition, Federal actions not covered by 
the HCP in areas occupied by listed species would still require 
consultation under section 7(a)(2) of the Act and would be reviewed for 
possibly significant habitat modification in accordance with the 
definition of harm referenced above.
    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

Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)
    We consider a current plan to provide adequate management or 
protection if it meets three criteria: (1) The plan is complete and 
provides the same or better level of protection from adverse 
modification or destruction than that provided through a consultation 
under section 7 of the Act; (2) there is a reasonable expectation that 
the conservation management strategies and actions will be implemented 
based on past practices, written guidance, or regulations; and (3) the 
plan provides conservation strategies and measures consistent with 
currently accepted principles of conservation biology. We believe that 
the Western Riverside County MSHCP fulfills these criteria, and we are 
considering the exclusion of non-federal lands covered by this plan 
that provide for the conservation of Berberis nevinii.
    The Western Riverside County MSHCP is a large-scale, multi-
jurisdictional habitat conservation plan (HCP) that addresses 146 
listed and unlisted ``Covered Species,'' including Berberis nevinii, 
within the 1.26-million ac (510,000 ha) Plan Area in western Riverside 
County. Participants in the MSHCP include 14 cities in western 
Riverside County; the County of Riverside, including the Riverside 
County Flood Control and Water Conservation Agency, Riverside County 
Transportation Commission, Riverside County Parks and Open Space 
District, and Riverside County Waste Department; California Department 
of Parks and Recreation; and the California Department of 
Transportation (Caltrans). The MSHCP was designed to establish a multi-
species conservation program that minimizes and mitigates the expected 
loss of habitat and the incidental take of Covered Species. On June 22, 
2004, the Service issued a single incidental take permit under section 
10(a)(1)(B) of the Act to 22 Permittees under the MSHCP for a period of 
75 years. The Service granted the participating jurisdictions ``take 
authorization'' of listed species in exchange for their contribution to 
the assembly and management of the MSHCP Conservation Area.
    The MSHCP will establish approximately 153,000 ac (61,916 ha) of 
new conservation lands (Additional Reserve Lands) to complement the 
approximate 347,000 ac (140,426 ha) of existing natural and open space 
areas (e.g., State Parks, USFS, and County Park lands known as Public/
Quasi-Public (PQP) Lands) in forming the MSHCP Conservation Area. The 
location and configuration of the 153,000 ac (61,916 ha) Additional 
Reserve Lands is not mapped or precisely identified in the MSHCP, but 
rather is based on textual descriptions and will be chosen from within 
a 310,000-ac (125,453 ha) Criteria Area that will be interpreted as 
implementation of the MSHCP proceeds. The defined Criteria Area is 
divided into cells of approximately 160 ac each, and each cell or group 
of cells has specific conservation criteria associated with it (MSHCP 
Section 3.2.3). For Berberis nevinii, critical habitat subunits 1A 
through 1F within the Agua Tibia/Vail Lake unit are located entirely 
within the MSHCP Plan Area and are comprised of USFS, BLM, and private 
lands.
    The private lands within proposed critical habitat for Berberis 
nevinii are within the Criteria Area and are targeted for inclusion 
within the MSHCP Conservation Area as potential Additional Reserve 
Lands. Specific conservation objectives in the MSHCP for Berberis 
nevinii provide for conservation and management of at least 8,000 ac 
(3,238 ha) of suitable habitat (defined as chaparral and Riversidean 
alluvial fan sage scrub between 984 and 2,162 ft (300 and 659 m) in 
elevation) in the Vail Lake area and all known locations for B. nevinii 
in the Vail Lake area. The Soboba Badlands occurrence is also located 
within proposed Additional Reserve Lands. Additionally, the MSHCP 
requires surveys for B. nevinii as part of the project review process 
for public and private projects where suitable habitat is present 
within a defined boundary of the Criteria Area (see Criteria Area 
Species Survey Area Map, Figure 6-2 of the MSHCP, Volume I). For 
locations with positive survey results, 90 percent of those portions of 
the property that provide long-term conservation value for the species 
will be avoided until it is demonstrated that the conservation 
objectives for the species are met.
    As discussed in the Background section of this rule, we were unable 
to accurately quantify the exact number of Berberis nevinii occurrences 
or plants within the MSHCP Plan Area. Nevertheless, all of these 
occurrences except those identified below are located within either 
existing PQP lands or proposed Additional Reserve Lands.

[[Page 5573]]

Two records near Temecula are outside of existing PQP Lands and the 
proposed Additional Reserve Lands and may be impacted; however, these 
occurrences are likely extirpated. Another occurrence in the Temecula 
area needs to be verified, but may also be impacted. The goal of the 
MSHCP is to conserve all known locations of B. nevinii in the Agua 
Tibia/Vail Lake area and the Soboba Badlands. Additionally, new 
occurrences that are found as a result of survey efforts and are 
subsequently determined to be important to the overall conservation of 
the species may be included in the Additional Reserve Lands. Although 
the specific location of individual target areas for this species has 
yet to be identified, we agree that conservation of known occurrences 
of this plant in the Agua Tibia/Vail Lake area (which includes Oak 
Mountain) through the survey requirements, avoidance and minimization 
measures, and management for B. nevinii (and its PCEs) provided for in 
the Western Riverside County MSHCP exceeds any conservation value 
provided as a result of regulatory protections that may be afforded 
through a critical habitat designation.
    We propose to exclude approximately 385 ac (156 ha) of non-Federal 
lands from the final critical habitat designation for Berberis nevinii 
under section 4(b)(2) of the Act. These non-Federal lands fall within 
the MSHCP Plan Area and include: approximately 5 ac (2 ha) of private 
lands near the foothills of the Agua Tibia Mountains north of Cleveland 
National Forest (part of Subunit 1B); approximately 87 ac (35 ha) of 
private lands on the south flank of Big Oak Mountain (Subunit 1C); 
approximately 22 ac (9 ha) of private land directly north of Vail Lake 
(Subunit 1D); approximately 251 ac (102 ha) of private land to the 
south of Vail Lake and on the Vail Lake peninsula, which is the area 
with the largest known occurrence of B. nevinii (Subunit 1E); and 
approximately 20 ac (8 ha) of private land north of Temecula Creek and 
southeast of Vail Lake (Subunit 1F). All of these lands are also within 
the MSHCP's Conservation Area and the MSHCP's Survey Area and will 
receive conservation benefits under the Additional Survey Needs and 
Procedures policy.
    The Federal lands within Subunit 1A (BLM-managed) and Subunit 1B 
(USFS managed) are considered PQP lands under the MSHCP and as such are 
included within the overall 500,000-ac (202,343 ha) MSHCP Conservation 
Area. However, as explained in detail above, we are not proposing to 
exclude BLM or USFS lands within subunits 1A and 1B.

Benefits of Inclusion

    We believe there is minimal benefit from designating critical 
habitat for Berberis nevinii on private lands in Unit 1 (subunits 1B, 
1C, 1D, 1E, and 1F) because the habitat essential for this species in 
the vicinity of Vail Lake and Oak Mountain in western Riverside County 
is targeted for conservation under the Western Riverside County MSHCP 
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 
which directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The protections provided by section 7(a)(2) apply to actions on private 
lands whenever there is a Federal nexus, such as the use of Federal 
funds or the need for a Federal permit to conduct a project. The 
designation of critical habitat may provide a different level of 
protection under section 7(a)(2) for Berberis nevinii separate from the 
obligation of a Federal agency to ensure that their actions are not 
likely to jeopardize the continued existence of the endangered 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 385 ac (156 ha) of private land in the 
proposed critical habitat designation for Berberis nevinii 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 lands are not likely to 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 known locations of this plant in the vicinity of 
Vail Lake and Oak Mountain will be conserved through the survey 
requirements, avoidance and minimization measures, and management of B. 
nevinii (and its PCEs) provided for in the Western Riverside County 
MSHCP. Additionally, new occurrences documented through survey efforts 
that are subsequently determined to be important to the overall 
conservation of the species may be included in the Additional Reserve 
Lands. We anticipate that these conservation measures will exceed any 
conservation value provided as a result of regulatory protections that 
may be afforded through a critical habitat designation.
    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 Berberis nevinii and its habitat. 
However, as discussed above, the importance of protecting the 
biological resource values of these lands, including B. nevinii, has 
already been clearly and effectively communicated to Federal, State, 
and local agencies and other interested organizations and members of 
the public through this proposed rule and the Western Riverside County 
MSHCP approval and implementation process.
    In short, we expect the Western Riverside County MSHCP to provide 
enhanced protection and management of Berberis nevinii and its PCEs 
within areas considered essential for conservation of the species on 
private lands in the vicinity of Vail Lake and Oak Mountain. We expect 
the MSHCP to provide a greater level of conservation for B. nevinii on 
private lands in this area than would designation of critical habitat.

Benefits of Exclusion

    In contrast to section 7(a)(2) of the Act, the Western Riverside 
County MSHCP commits the permittees to manage private lands in western 
Riverside County, California, for the benefit of Berberis nevinii and 
other covered species. These commitments go well beyond a simple 
requirement for Federal agencies to avoid adverse modification of 
critical habitat by including conservation and management of at least 
8,000 ac (3,238 ha) of suitable B. nevinii habitat in the vicinity of 
Vail Lake and Oak Mountain, and all known locations of the species in 
this area. Excluding the 385 ac (156 ha) of private land in subunits 1B 
through 1F from critical habitat designation would recognize the 
permittees' commitment under the MSHCP to manage non-Federal lands in 
western Riverside County consistent with the conservation goals and 
objectives of the MSHCP. It would also provide additional incentive to 
the permittees to maintain and strengthen the partnerships created by 
their official

[[Page 5574]]

participation in the MSHCP planning process, especially considering the 
high level of cooperation by the participants in the MSHCP to conserve 
this taxon.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    We have reviewed and evaluated the proposed exclusion of 
approximately 385 ac (156 ha) of non-Federal lands within the MSHCP 
Plan Area from the final designation of critical habitat, and we have 
determined that the benefits of excluding the non-Federal lands in Unit 
1 outweigh the benefits of including these lands. The PCEs required by 
Berberis nevinii will benefit from the conservation measures outlined 
in the MSHCP. In summary, these conservation measures include 
protecting and managing important habitat containing PCEs within the 
MSHCP Conservation Area, primarily through the protection of habitat 
from surface-disturbing activities; implementing specific management 
and monitoring practices to help ensure conservation of B. nevinii in 
the Plan Area; maintaining physiological and ecological characteristics 
of occupied habitat and suitable areas not known to be occupied (e.g., 
managing flood control activities, nonnative species, and other 
activities so as to limit alterations to the natural hydrologic and 
fire regime); and conducting surveys and implementing other required 
procedures to ensure avoidance of impacts to at least 90 percent of 
suitable habitat areas determined important to the long-term 
conservation of B. nevinii within the Criteria Area. The specific areas 
identified as subunits 1C, 1D, 1E, and 1F, as well as the non-Federal 
lands identified within Subunit 1B, will be addressed under the MSHCP. 
These specific conservation actions, survey requirements, avoidance and 
minimization measures, and management of B. nevinii and its habitat/
PCEs as outlined in the MSHCP exceed any conservation value provided as 
a result of regulatory protections that may be afforded through a 
critical habitat designation.
    The exclusion of these lands from critical habitat would also help 
preserve the partnerships that we have developed with the local 
jurisdictions and project proponents in the development of the MSHCP. 
The benefits of excluding these lands from critical habitat would 
outweigh the minimal benefits of including these lands as critical 
habitat, including the educational benefits gained by informing the 
public of areas important for the long-term conservation of this 
species. Such educational benefits can still be accomplished from 
materials provided on our Web site. Furthermore, many of the 
educational benefits of critical habitat designation would be achieved 
through the overall designation, notice, and public comment process, 
and would occur whether or not these particular subunits are 
designated.

Exclusion Would Not Result in Extinction of the Species

    We do not believe that the exclusion of 385 ac (156 ha) from the 
final designation of critical habitat for Berberis nevinii would result 
in the extinction of the species because the Western Riverside County 
MSHCP provides for the conservation of this species and its PCEs on 
occupied areas in the Agua Tibia/Vail Lake area (including Oak 
Mountain), as well as areas discovered to be occupied by B. nevinii 
during surveys of suitable habitat within a defined boundary of the 
Criteria Area. Importantly, as we stated in our biological opinion for 
the MSHCP (Service 2004), while some loss of modeled habitat for B. 
nevinii is anticipated due to implementation of the MSHCP, 
implementation of the plan will not jeopardize the continued existence 
of this species.
    The jeopardy standard of section 7 and routine implementation of 
conservation measures through the section 7 process will also provide 
assurances that the species will not go extinct. The proposed exclusion 
of critical habitat leaves these protections unchanged from those that 
would exist if the proposed excluded areas were designated as critical 
habitat.

Economic Analysis

    An analysis of the economic impacts of proposing critical habitat 
for Berberis nevinii is being prepared. We will announce the 
availability of the draft economic analysis as soon as it is completed, 
at which time we will seek public review and comment. At that time, 
copies of the draft economic analysis will be available for downloading 
from the Internet at http://www.fws.gov/carlsbad, or by contacting the 
Carlsbad Fish and Wildlife Office directly (see ADDRESSES section). 
Based on public comments, the proposed designation itself, and the 
information in the full economic analysis, additional areas beyond 
those identified in this assessment may be excluded from final critical 
habitat by the Secretary under the provisions of section 4(b)(2) of the 
Act. This is provided for in the Act and in our implementing 
regulations at 50 CFR 242.19.

Peer Review

    In accordance with our joint policy published in the Federal 
Register on July 1, 1994 (59 FR 34270), we will seek the expert 
opinions of at least three appropriate and independent specialists 
regarding this proposed rule. The purpose of such review is to ensure 
that our critical habitat designation is based on scientifically sound 
data, assumptions, and analyses. We will send to these peer reviewers 
copies of this proposed rule immediately following publication in the 
Federal Register. We will invite these peer reviewers to comment, 
during the public comment period, on the specific assumptions and 
conclusions regarding the proposed designation of critical habitat.
    We will consider all comments and information received during the 
comment period on this proposed rule during preparation of a final 
rulemaking. Accordingly, the final decision may differ from this 
proposal.

Public Hearings

    The Act provides for one or more public hearings on this proposal, 
if requested. Requests for public hearings must be made in writing at 
least 15 days prior to the close of the public comment period. We will 
schedule public hearings on this proposal, if any are requested, and 
announce the dates, times, and places of those hearings in the Federal 
Register and local newspapers at least 15 days prior to the first 
hearing.

Clarity of the Rule

    Executive Order 12866 (Regulatory Planning and Review) requires 
each agency to write regulations and notices that are easy to 
understand. We invite your comments on how to make this proposed rule 
easier to understand, including answers to questions such as the 
following: (1) Are the requirements in the proposed rule clearly 
stated? (2) Does the proposed rule contain technical jargon that 
interferes with the clarity? (3) Does the format of the proposed rule 
(grouping and order of the sections, use of headings, paragraphing, and 
so forth) aid or reduce its clarity? (4) Is the description of the 
notice in the SUPPLEMENTARY INFORMATION section of the preamble helpful 
in understanding the proposed rule? (5) What else could we do to make 
this proposed rule easier to understand?
    Send a copy of any comments on how we could make this proposed rule 
easier to understand to: Office of Regulatory Affairs, Department of 
the Interior, Room 7229, 1849 C Street, NW.,

[[Page 5575]]

Washington, DC 20240. You may e-mail your comments to this address: 
<a href="/cdn-cgi/l/email-protection#0a4f72796f694a636579246e6563246d657c"><span class="__cf_email__" data-cfemail="da9fa2a9bfb99ab3b5a9f4beb5b3f4bdb5ac">[email protected]</span></a>.

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, 
but it is not anticipated to have an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Due to 
the tight timeline for publication in the Federal Register, the Office 
of Management and Budget (OMB) has not formally reviewed this rule. We 
are preparing a draft economic analysis of this proposed action, which 
will be available for public comment, to determine the economic 
consequences of designating the specific area as critical habitat. This 
economic analysis also will be used to determine compliance with 
Executive Order 12866, Regulatory Flexibility Act, Small Business 
Regulatory Enforcement Fairness Act, Executive Order 12630, Executive 
Order 13211, and Executive Order 12875.
    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, then the agency will need to consider 
alternative regulatory approaches. Since the determination of critical 
habitat is a statutory requirement pursuant to the Endangered Species 
Act of 1973, as amended (Act) (16 U.S.C. 1531 et seq.), 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 subspecies. As such, we believe that the evaluation of the 
inclusion or exclusion of particular areas, or combination thereof, in 
a designation constitutes our regulatory alternative analysis.
    Within these areas, the types of Federal actions or authorized 
activities that we have identified as potential concerns are listed 
above in the section on Section 7 Consultation. The availability of the 
draft economic analysis will be announced in the Federal Register and 
in local newspapers so that it is available for public review and 
comments. The draft economic analysis can be obtained from our Web site 
at http://www.fws.gov/carlsbad, or by contacting the Carlsbad Fish and 
Wildlife Office directly (see ADDRESSES section).

Regulatory Flexibility Act (5 U.S.C. 601 et seq.)

    Under the Regulatory Flexibility Act (5 U.S.C. 601 et seq., 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 effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. The SBREFA amended the Regulatory 
Flexibility Act (RFA) to require Federal agencies to provide a 
statement of the factual basis for certifying that the rule will not 
have a significant economic impact on a substantial number of small 
entities.
    At this time, the Service lacks the available economic information 
necessary to provide an adequate factual basis for the required RFA 
finding. Therefore, the RFA finding is deferred until completion of the 
draft economic analysis prepared under section 4(b)(2) of the Act and 
E.O. 12866. This draft economic analysis will provide the required 
factual basis for the RFA finding. Upon completion of the draft 
economic analysis, the Service will publish a notice of availability of 
the draft economic analysis of the proposed designation and reopen the 
public comment period for the proposed designation for an additional 60 
days. The Service will include with the notice of availability, as 
appropriate, an initial regulatory flexibility analysis or a 
certification that the rule will not have a significant economic impact 
on a substantial number of small entities accompanied by the factual 
basis for that determination. The Service has concluded that deferring 
the RFA finding until completion of the draft economic analysis is 
necessary to meet the purposes and requirements of the RFA. Deferring 
the RFA finding in this manner will ensure that the Service makes a 
sufficiently informed determination based on adequate economic 
information and provides the necessary opportunity for public comment.

Executive Order 13211

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) 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. Although this proposed rule to designate critical 
habitat for Berberis nevinii is a significant regulatory action under 
Executive Order 12866, it 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), the Service makes the following findings:
    (a) This rule would 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, or 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

[[Page 5576]]

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 non-Federal entities that receive 
Federal funding, assistance, or permits, or that 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 would significantly affect 
small governments. The lands being proposed for final critical habitat 
designation are owned by the Federal Bureau of Land Management and the 
U.S. Forest Service. Neither of these government entities fit the 
definition of ``small governmental jurisdiction.'' As such, a Small 
Government Agency Plan is not required. However, we will further 
evaluate this issue as we conduct our economic analysis, and review and 
revise this assessment as warranted.

Takings

    In accordance with Executive Order 12630 (``Government Actions and 
Interference with Constitutionally Protected Private Property 
Rights''), we have analyzed the potential takings implications of 
designating critical habitat for the Berberis nevinii in a takings 
implications assessment. The takings implications assessment concludes 
that this proposed designation of critical habitat for the B. nevinii 
would not pose significant takings implications. However, we will 
further evaluate this issue as we conduct our economic analysis and 
review and revise this assessment as warranted.

Federalism

    In accordance with Executive Order 13132 (Federalism), the rule 
would 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 
proposed critical habitat designation with appropriate State resource 
agencies in California. The designation of critical habitat in areas 
currently occupied by Berberis nevinii would impose no additional 
restrictions to those currently in place and, therefore, has little 
incremental impact on State and local governments and their activities. 
The designation would likely 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 have proposed designating critical habitat in 
accordance with the provisions of the Act. This proposed 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 Berberis nevinii.

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)).

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 of Berberis nevinii, and no 
Tribal lands that are unoccupied areas that are essential for the 
conservation of B. nevinii. Therefore, the designation of critical 
habitat for B. nevinii has not been proposed 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).

Authors

    The primary authors of this package are the Nevada Fish and 
Wildlife Office, Reno, Nevada, and the Carlsbad Fish and Wildlife 
Office, Carlsbad, California.

List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and 
recordkeeping requirements, Transportation.

Proposed Regulation Promulgation

    Accordingly, we propose to 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:


[[Page 5577]]


    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 Sec.  17.12(h), revise the entry for ``Berberis nevinii'' 
under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                       Species
------------------------------------------------------   Historic range           Family             Status      When listed    Critical       Special
       Scientific name               Common name                                                                                 habitat        rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
Flowering Plants
 
                                                                      * * * * * * *
Berberis nevinii.............  Nevin's barberry......  U.S.A. (CA)......  Berberidaceae.........  E...........  648.........  17.96(a)....  NA.
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. Amend Sec.  17.96(a) as follows:
    a. Add ``Family Berberidaceae'' in alphabetical order of the family 
names; and
    b. Add a critical habitat entry for ``Berberis nevinii'' under 
Family Berberidaceae to read as set forth below.


Sec.  17.96  Critical habitat--plants.

    (a) Flowering Plants.
* * * * *
Family Berberidaceae: Berberis nevinii (Nevin's barberry)
    (1) Critical habitat is depicted for Riverside County, California, 
in the text and on the maps below.
    (2) The primary constituent elements (PCEs) of critical habitat for 
Berberis nevinii are:
    (i) Low-gradient (i.e., nearly flat) canyon floors, washes and 
adjacent terraces, and mountain ridges/summits, or eroded, generally 
northeast- to northwest-facing mountain slopes and banks of dry washes 
typically of less than 70 percent slope that provide space for plant 
establishment and growth;
    (ii) Well-drained alluvial soils primarily of non-marine 
sedimentary origin, such as Temecula or sandy arkose soils; soils of 
the Cajalco-Temescal-Las Posas soil association formed on gabbro 
(igneous) or latite (volcanic) bedrock; metasedimentary substrates 
associated with springs or seeps; and heavy adobe/gabbro-type soils 
derived from metavolcanic geology (Mesozoic basic intrusive rock) that 
provide the appropriate nutrients and space for growth and 
reproduction; and
    (iii) Scrub (chaparral, coastal sage, alluvial, riparian) and 
woodland (oak, riparian) vegetation communities between 900 and 3,000 
ft (275 and 915 m) in elevation that provide the appropriate cover for 
growth and reproduction.
    (3) Critical habitat does not include man made structures (such as 
buildings, aqueducts, airports, roads, and other paved areas) existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements.
    (4) Data layers defining map units were created on a base of USGS 
1:24,000 maps, and critical habitat units were then mapped using 
Universal Transverse Mercator (UTM) North American Datum (NAD) 1927 
coordinates. We used aerial photographs as well as soils and vegetation 
data to help refine unit boundaries based on presence of PCEs.
    (5) Unit 1. Agua Tibia/Vail Lake, Riverside County, California.

    (i) Subunit 1A for Berberis nevinii, Big Oak Mountain Summit 
Subunit, Riverside County, California. From USGS 1:24,000 quadrangle 
Sage, lands bounded by the following UTM NAD27 coordinates (E, N): 
502200, 3708400; 502400, 3708400; 502400, 3708100; 502200, 3708100; 
thence returning to 502200, 3708400.
    (ii) Subunit 1B for Berberis nevinii, Agua Tibia Mountain 
Foothills Subunit, Riverside County, California. From USGS 1:24,000 
quadrangle Vail Lake, lands bounded by the following UTM NAD27 
coordinates (E, N): 504222, 3703100; 504400, 3703100; 504400, 
3703000; 504500, 3703000; 504500, 3702700; 504300, 3702700; 504300, 
3702900; 504200, 3702900; 504200, 3703086; thence returning to 
504222, 3703100.
    (iii) Subunit 1C for Berberis nevinii, South Flank Big Oak 
Mountain Subunit, Riverside County, California. From USGS 1:24,000 
quadrangles Sage and Vail Lake, lands bounded by the following UTM 
NAD27 coordinates (E, N): 501900, 3707400; 502100, 3707400; 502100, 
3707200; 502400, 3707200; 502400, 3707100; 502700, 3707100; 502700, 
3706900; 502100, 3706900; 502100, 3706400; 501900, 3706400; thence 
returning to 501900, 3707400.
    (iv) Subunit 1D for Berberis nevinii, North Vail Lake Subunit, 
Riverside County, California. From USGS 1:24,000 quadrangles Sage 
and Vail Lake, lands bounded by the following UTM NAD27 coordinates 
(E, N): 502600, 3706600; 502900, 3706600; 502900, 3706300; 502600, 
3706300; thence returning to 502600, 3706600.
    (v) Subunit 1E for Berberis nevinii, South of Vail Lake/
Peninsula Subunit, Riverside County, California. From USGS 1:24,000 
quadrangle Vail Lake, lands bounded by the following UTM NAD27 
coordinates (E, N): 502473, 3705611; 502487, 3705628; 502494, 
3705628; 502641, 3705560; 502648, 3705557; 502653, 3705552; 502659, 
3705538; 502665, 3705518; 502667, 3705506; 502676, 3705495; 502684, 
3705486; 502693, 3705468; 502695, 3705461; 502693, 3705456; 502700, 
3705444; 502707, 3705436; 502712, 3705428; 502712, 3705419; 502708, 
3705408; 502705, 3705396; 502698, 3705384; 502689, 3705376; 502676, 
3705356; 502669, 3705334; 502671, 3705311; 502677, 3705301; 502672, 
3705285; 502669, 3705266; 502659, 3705234; 502649, 3705196; 502652, 
3705152; 502658, 3705122; 502661, 3705080; 502665, 3705034; 502674, 
3705014; 502685, 3704979; 502705, 3704936; 502708, 3704929; 502724, 
3704909; 502725, 3704908; 502736, 3704876; 502793, 3704820; 502828, 
3704794; 502859, 3704788; 502865, 3704791; 502879, 3704784; 502907, 
3704779; 502941, 3704777; 503019, 3704751; 503051, 3704744; 503079, 
3704742; 503108, 3704745; 503134, 3704748; 503151, 3704748; 503164, 
3704748; 503174, 3704748; 503187, 3704746; 503198, 3704737; 503207, 
3704732; 503215, 3704728; 503281, 3704698; 503289, 3704697; 503300, 
3704696; 503300, 3704300; 503600, 3704300; 503600, 3704100; 503500, 
3704100; 503500, 3703900; 503200, 3703900; 503200, 3704100; 503100, 
3704100; 503100, 3704600; 502700, 3704600; 502700, 3704700; 502300, 
3704700; 502300, 3704500; 502200, 3704500; 502200, 3704200; 502000, 
3704200; 502000, 3704000; 501600, 3704000; 501600, 3704300; 501700, 
3704300; 501700, 3705100; 501900, 3705100; 501900, 3704900; 502000, 
3704900; 502000, 3704600; 502009, 3704588; 502038, 3704568; 502064, 
3704558; 502111, 3704555; 502159, 3704562; 502191, 3704583; 502222, 
3704611; 502247, 3704656; 502274, 3704719; 502287, 3704762; 502287, 
3704806; 502271, 3704875; 502242, 3704940; 502237, 3704948; 502237, 
3704961; 502272, 3704992; 502296, 3705015; 502330, 3705040; 502358, 
3705052; 502382, 3705079; 502404, 3705116; 502423, 3705150; 502434, 
3705160; 502436, 3705171; 502487, 3705293; 502496, 3705308; 502500, 
3705322; 502497, 3705332; 502501, 3705348; 502497, 3705372; 502487, 
3705414; 502481, 3705428; 502475, 3705447; 502456, 3705535; thence 
returning to 502473, 3705611.
    (vi) Subunit 1F for Berberis nevinii, Temecula Creek East 
Subunit, Riverside County, California. From USGS 1:24,000 quadrangle 
Vail Lake, lands bounded by the following UTM NAD27 coordinates (E, 
N): 504400, 3704200; 504600, 3704200; 504600, 3703800; 504400, 
3703800; thence returning to 504400, 3704200.
    (vii) Map of Subunits 1A through 1F (Map 1) follows.


[[Page 5578]]


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

[[Page 5579]]

[GRAPHIC] [TIFF OMITTED] TP06FE07.000


[[Page 5580]]


* * * * *

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


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