[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Proposed Rules]
[Pages 67956-67985]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-22190]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT92


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Endangered Monardella linoides ssp. viminea 
(Willowy Monardella)

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 the endangered Monardella linoides ssp. 
viminea (willowy monardella) under the Endangered Species Act of 1973, 
as amended (Act). We have determined that approximately 2,539 acres 
(ac) (1,028 hectares (ha)) of land within San Diego County, California, 
contain the physical and biological features essential to the 
conservation of M. l. ssp. viminea. Of that, we are proposing to 
designate as critical habitat approximately 115 acres (47 ha) of 
private lands and the Padre Dam Municipal Water District lands within 
the City of Santee. We do not include Tribal lands in this proposed 
designation. We are exempting or considering whether to exclude from 
critical habitat designation the other lands that contain the features 
essential to the conservation of M. l. ssp. viminea. We fully discuss 
the exemption and exclusions under consideration in the preamble of 
this proposed rule. We are soliciting data and comments from the public 
on all aspects of this proposal, including the exemption and exclusions 
under consideration.

DATES: We will accept comments from all interested parties until 
January 9, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by December 27, 
2005.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office (CFWO), 6010 Hidden Valley Road, Carlsbad, CA 92011.
    2. You may hand-deliver written comments to the CFWO, at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to 
<a href="/cdn-cgi/l/email-protection#83e5f4bbe0e5f4eceeecefeaf5eac3e5f4f0ade4ecf5"><span class="__cf_email__" data-cfemail="a3c5d49bc0c5d4cccecccfcad5cae3c5d4d08dc4ccd5">[email protected]</span></a>. Please see the Public Comments Solicited section 
below for file format and other information about electronic filing.
    4. You may fax your comments to 760/431-9624.
    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 CFWO at the above address. Maps showing areas proposed as 
critical habitat, areas under consideration for exclusion from critical 
habitat, and areas exempted from critical habitat are available for 
public review and comment at the CFWO or on the Internet at http://carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, CFWO at 
the above address (telephone 760/431-9440; facsimile 760/431-9624).

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.

[[Page 67957]]

Comments are particularly 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, 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 
Monardella linoides ssp. viminea habitat, and what areas should be 
included in the designations that were occupied at the time of listing 
that contain the features that are essential to the conservation of the 
species and why and what areas that were not occupied at the time of 
listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) The exclusion from critical habitat that we are considering for 
lands within the San Diego MSCP and the BLM Otay Mountain Wilderness 
and the multiple agency 1994 MOU under section 4(b)(2) of the Act (see 
Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act for details, including maps, of the San Diego MSCP and Otay 
Mountain Wilderness and MOU). Please provide information on the 
benefits of including or excluding these lands from the critical 
habitat designation;
    (5) The exemption from critical habitat at MCAS Miramar pursuant to 
section 4(a)(3) of the Act because their Integrated Natural Resources 
Management Plan (INRMP) provides a benefit to M. l. ssp. viminea. We 
specifically solicit comment concerning the exemption of MCAS Miramar 
under section 4(a)(3) of the Act and whether their INRMP provides a 
benefit to the species (see Application of Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion and figure of the area).
    (6) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (7) 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 submit Internet comments to <a href="/cdn-cgi/l/email-protection#4620317e252031292b292a2f302f0620313568212930"><span class="__cf_email__" data-cfemail="6e0819560d0819010301020718072e08191d40090118">[email protected]</span></a> in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: Willowy Monardella'' in your 
e-mail subject header 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 CFWO at phone number 760/431-9440. Please note that this Internet 
address will be closed at the termination of the public comment period.
    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 home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
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.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species, or 37.5 
percent of the 1,253 listed species in the U.S. under the jurisdiction 
of the Service, have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions against take of animal species and other unauthorized 
actions regarding plants, Section 6 funding to the States, and the 
Section 10 incidental take permit process. The Service believes that it 
is these measures that may make the difference for the conservation of 
many species.
    We note, however, that the August 6, 2004 Ninth Circuit judicial 
opinion, (Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service) found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the 9th Circuit's ruling and the Director's guidance.

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

[[Page 67958]]

with the most biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate 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, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed 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). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    In this proposed rule, we discuss only those topics directly 
relevant to the designation of critical habitat. For more information 
on Monardella linoides ssp. viminea, refer to the final rule listing 
the species as endangered published in the Federal Register on October 
13, 1998 (63 FR 54938).

Life History

    Monardella linoides ssp. viminea is a small perennial, herbaceous 
subshrub with aromatic foliage and several erect stems extending from a 
woody base (Munz 1968; 63 FR 54937). It is a member of the Lamiaceae 
(mint family) and flowers from June to August (Munz 1968). Because M. 
l. ssp. viminea branches arise from trailing stems, plants tend to grow 
in groupings or ``clumps,'' rather than as discrete plants (Epling 
1925). Seeds are small with a hard seed coat and may fall directly 
below existing plants after setting (Mike Kelly, pers. comm. to Carolyn 
Lieberman, U.S. Fish and Wildlife Service, 2003). Little is known about 
how the species disperses, however, seeds and vegetative shoots are 
believed to be transported by flowing water (Mark Elvin, botanist, 
Dudek and Associates, pers. comm. to C. Lieberman, U.S. Fish and 
Wildlife Service, 2003).
    M. l. ssp. viminea primarily inhabits coarse, rocky, sandy alluvium 
on terraces, benches, and stabilized sandbars along and within 
ephemeral drainages (Scheid 1985) in coastal sage scrub or riparian 
scrub habitat that is frequently associated with Eriogonum fasciculatum 
(California buckwheat), Platanus racemosa (sycamore), Artemisia 
californica (California sagebrush), and Baccharis sarothroides 
(coyotebush), and Quercus agrifolia (coast live oak) (Scheid 1985). 
These semi-open washes and drainage areas typically contain little to 
no canopy cover (Reiser 1994; 63 FR 54937) and are maintained by large 
intermittent water flows that erode and deposit alluvial material, 
developing benches and sandbars.

Distribution and Status

    The distribution of M. l. ssp. viminea is extremely restricted 
within San Diego County, California, and extends south to Baja 
California, Mexico (Scheid 1985). This narrow endemic plant persists in 
small isolated occurrences within a 72 square-mile (186 square-
kilometer) area between Los Pe[ntilde]asquitos Canyon and Mission Gorge 
in San Diego County and in Otay Mesa and northern Baja California. The 
morphology of M. l. ssp. viminea differs between the populations 
bounded by the Los Pe[ntilde]asquitos Canyon and Mission Gorge region 
to the north and Otay Mesa and northern Baja California region to the 
south. These differences led Elvin and Sanders (2003) to propose the 
Otay Mesa and northern Baja California occurrences as a different 
taxon. The Service evaluated this information and concluded that the 
authors did not provide adequate evidence to elevate the Otay Mesa and 
northern Baja California occurrences to the species rank (Bartel and 
Wallace, in litt. 2004).
    As stated in the 1998 listing rule, approximately 6,000 individuals 
of M. l. ssp. viminea from 20 occurrences were known to exist in the 
United States within the following canyons or geographic areas at the 
time the species was listed as endangered: MCAS Miramar, Sycamore 
Canyon (partially on private land, partially on Federal land managed by 
the U.S. Navy, and partially on Sycamore Canyon City Park), Lopez 
Canyon (Los Pe[ntilde]asquitos City Regional Park), San Clemente Canyon 
(San Clemente Park), Cedar Canyon, and Marron Valley. Since M. l. ssp. 
viminea was listed, a population was found on BLM land on Otay 
Mountain.
    We are currently aware of only 15 occurrences in the United States 
within the following canyons or geographic areas: MCAS Miramar (Rose 
Canyon, part of Sycamore Canyon, West Sycamore Canyon, part of Spring 
Canyon, San Clemente Canyon, Elanus Canyon (MCAS Miramar 2002)), part 
of Sycamore Canyon on private property and Sycamore Canyon City Park, 
Cedar Canyon (now referred to as Otay Lakes), Lopez Canyon (Los 
Pe[ntilde]asquitos City Regional Park), Marron Valley, and Otay 
Mountain.
    The remaining six occurrences are believed to have been extirpated 
after the species was listed in 1998:
    The Carroll Canyon occurrence (California Natural Diversity Data 
Base (CNDDB) occurrence number 25): this occurrence is comprised of 122 
clumps, was collected as mitigation for the Carroll Canyon Business 
Park project in 2003 to prevent their destruction during the project's 
construction. Of these 122 clumps, 30 are being held at the Rancho 
Santa Ana Botanic Garden as live material. Others will be reintroduced 
back into suitable sites in Carroll Canyon, at a robust historical 
population site at San Clemente Canyon, and/or in Lopez Canyon next to 
existing populations. The exact location where M. l. ssp. viminea will 
be reintroduced will depend on the results of genetic testing to 
determine the genetic similarity of the donor population with any 
population in which it may interact.
    The three San Clemente Canyon occurrences on City of San Diego Park 
land (CNDDB occurrence numbers 11, 16, and 17): These three occurrences 
of M. l. ssp. viminea historically occurred in the upper portion of the 
canyon at MCAS Miramar, and in the lower portion of the canyon west of 
Interstate 805 in the City of San Diego's Marian Bear Natural Park. 
These occurrences within this park are believed to have been extirpated 
due to construction of Highway 52, development within its watershed 
resulting in conversion of the occupied stream from ephemeral to 
perennial (Sherman 2003), and an increase in nonnative invasive 
species.
    The two occurrences within Murphy Canyon (CNDDB occurrence numbers

[[Page 67959]]

15, and 30) (CNDDB 1997; CNDDB 2001; 63 FR 54937): These occurrences 
have not had any live standing plants since 2002, and we do not know if 
suitable habitat remains here but they are believed to be extirpated 
(JoEllan Kassebaum, Botanist, MCAS Miramar, pers. com. to Bridgette 
Tuerler, Service 2005).
    Monardella linoides ssp. viminea was also known from Cemetery 
Canyon, Beeler Canyon (near Poway), and Switzer Canyons but is believed 
to have been extirpated from these areas prior to listing (CNDDB 2001; 
Elvin and Sanders 2003).
    Methods to survey Monardella linoides ssp. viminea vary because it 
tends to grow in groupings (referred to as clumps) rather than as 
discrete plants, making it difficult to compare the numbers of 
individuals counted between different surveys. Surveys have counted 
individual plants, clumps of individual plants, and/or colonies (see 
Table 1 for details).

         Table 1.--Survey Data for Extant Occurrences of Monardella linoides ssp. viminea at Various Locations Over Time, From Pre-2000 to 2004
    [Years fro which we have no data are represented as ``ND'' and years for which we have no specific abundance data, only positive survey data, are
                                                              represented as ``occupied'']
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                                                                                                   Date
       Geographic area             Ownership    --------------------------------------------------------------------------------------------------------
                                                     Pre-2000            2000              2001              2002             2003             2004
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(1) Sycamore Canyon..........  MCAS Miramar....  383 plants \13\.  ND*.............  ND..............  446 clumps \8\.  ND.............  ND.
                               Private.........  Occupied **\7\..  262 clumps \2\..  170 clumps \3\..  128 plants \4\.  85 clumps (390   93 clumps (354
                                                                                                                         plants) \5\.     plants). \6\
(2) West Sycamore Canyon.....  MCAS Miramar....  1376 plants       907 clumps \9\..  ND..............   1,737 plants    ND.............  ND.
                                                  \13\; 650                                             (132 clumps)
                                                  colonies in                                           \8\.
                                                  1987 \10\.
                               City of San       Occupied \7\....  12 clumps.\12\..  ND..............  ND.............  ND.............  ND.
                                Diego.
                               Private.........  ND..............  ND..............  ND..............  ND.............  0 clumps,        ND.
                                                                                                                         previously 23
                                                                                                                         clumps.\11\.
(3) Spring Canyon............  MCAS Miramar....  185 clumps in     ND..............  ND..............  549 plants (80   ND.............  ND.
                                                  1994 \10\.                                            clumps) \8\.
                               Private (East     ND..............  133 clumps \2\..  ND..............  ND.............  ND.............  ND.
                                Elliot).
(4) San Clemente Canyon......  MCAS Miramar....  Occupied \7\....  343 clumps \9\..  ND..............  503 plants (83   ND.............  ND.
                                                                                                        clumps) \8\.
(5) Elanus Canyon............  MCAS Miramar....  10 clumps or      9 clumps \9\....  ND..............  13 plants (2     ND.............  ND.
                                                  individuals                                           clumps) \8\.
                                                  \10\.
(6) Lopez Canyon.............  City of San       60 plants in      8 clumps \2\....  8 clumps \3\....  44 plants \4\..  8 clumps (82     8 clumps (82
                                Diego (Los        1980 \1\, 12                                                           plants) \5\.     plants). \6\
                                Pe[ntilde]aquit   clumps in 1994,
                                os City           8 clumps in
                                Regional Park).   1997 \1\, 35
                                                  plants in 1987
                                                  \1\.
(7) Marron Valley............  City of San       60 plants in      42 clumps \2\...  66 clumps \3\...  98 plants \4\..  83 clumps (192   70 clumps (113
                                Diego & State     1992 \14\.                                                             plants) \5\.     plants). \6\
                                (CDF).
(8) Otay Lakes (also referred  State (CDFG)....  200 plants in     Occupied \7\....  ND..............  4 clumps \12\..  ND.............  ND.
 to as Cedar Canyon).                             1989 \10\.
                               City of San       ND..............  2 clumps \2\....  2 clumps \3\....  2 plants \4\...  ND.............  2 plants \6\.
                                Diego.
                               Private.........  ND..............  ND..............  25 plants \12\..  ND.............  ND.............  ND.
(9) Rose Canyon..............  MCAS Miramar....  Occupied \7\....  ND..............  ND..............  4 plants (2      ND.............  ND.
                                                                                                        clumps) \8\.
(10) Otay Mountain...........  Federal (BLM)...  ND..............  202 clumps \2\..  ND..............  ND.............  ND.............  ND.
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(Marine Corps Air Station (MCAS); California Department of Fish and Game (CDFG); Bureau of Land Management (BLM); California Department of Forestry
  (CDF)).
*ND = Years for which we have no data.
**Occupied = Years for which we have no specific abundance data, only positive survey data.
\1\ Kelly and Burrascano 2001.
\2\ City 2000.
\3\ City 2001.
\4\ City 2002.
\5\ City 2003.
\6\ City 2004.
\7\ GIS data layer from MCAS (No Date).
\8\ MCAS Miramar 2002.
\9\ Service 2000.
\10\ CNDDB 2001.
\11\ Helix Environmental Planning, Inc. 2004.
\12\ Sherman 2003.
\13\ GIS data layer from MCAS (unknown, but before 1998).
\14\ MSCP GIS layer from San Diego Association of Governments.

    As stated in the final listing rule, threats to Monardella linoides 
ssp. viminea include habitat alteration resulting from urban 
development, sand and gravel mining, off-road vehicle (ORV) activities, 
trampling, trash dumping, erosion, and invasion of nonnative species 
(October 13, 1998; 63 FR 54938).
    Due to its small population sizes and numbers, M. l. ssp. viminea 
is potentially threatened with stochastic (random) extinction (Service 
1995). Chance events (e.g., floods, fires, or drought) can 
substantially reduce or eliminate local populations and increase the 
likelihood of the plant's extinction. Major flood events can physically 
wash away individual plants and existing habitat (Kelly and Burrascano 
2001). M. l. ssp. viminea had likely adapted to a

[[Page 67960]]

natural fire regime since fires maintain open and available habitat 
necessary for M. l. ssp. viminea. Alternatively, disruptions to natural 
fire cycles may be detrimental to M. l. ssp. viminea because excessive 
fuel build up may cause hotter fires than those to which M. l. ssp. 
viminea has become adapted. Fire has resulted in loss of M. l. ssp. 
viminea individuals on Otay Lakes lands, although it was recently 
verified that surviving individuals still occur in this area (Sherman 
2003) and on MCAS Miramar. Drought has reduced population size within 
Sycamore Canyon (City 2002). Herbivory by unchecked populations of 
native rabbits and deer also has been identified as a threat to 
populations of M. l. ssp. viminea (Kelly and Burrascano 2001).

Previous Federal Actions

    Please see the final rule listing Monardella linoides ssp. viminea 
as endangered for a description of previous Federal actions up to the 
time of listing on October 13, 1998 (63 FR 54938). In the final listing 
rule, the Service determined designation of critical habitat was not 
prudent because such designation would not benefit the species and 
could increase the threat of illegal collection.
    On September 26, 2001, a lawsuit was filed against the Department 
of the Interior (DOI) and the Service by the California Native Plant 
Society (CNPS) alleging, in part, that the Service improperly 
determined that designation of critical habitat for Monardella linoides 
ssp. viminea was not prudent (CNPS v. Norton, No. 01-CV-1742IEG (JAH). 
The Service entered into a settlement agreement with the plaintiffs, 
under which we agreed to reconsider our ``not prudent'' finding, 
publish a proposed critical habitat rule for M. l. ssp. viminea in the 
Federal Register, if prudent, on or before October 30, 2005, and 
publish a final critical habitat rule, if prudent, on or before October 
30, 2006. This proposed rule complies with the June 2, 2003 settlement 
agreement.
    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state 
that the designation of critical habitat is not prudent when one or 
both of the following situations exist: (1) The species is threatened 
by taking or other activity and the identification of critical habitat 
can be expected to increase the degree of threat to the species or (2) 
such designation of critical habitat would not be beneficial to the 
species. In our October 13, 1998, final rule (63 FR 54938), we 
determined that designation of critical habitat would provide little 
conservation benefit over that provided by listing. We determined that 
designation of critical habitat was not prudent based on the increased 
threat of collection and vandalism and stated that designation of 
critical habitat could lead to increased publicity, illegal collection, 
and trampling of plants by individuals interested in seeing rare 
plants.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For example, in Conservation Council for 
Hawaii v. Babbitt, the United States District Court for the District of 
Hawaii ruled that the Service could not rely on the ``increased 
threat'' rationale for a ``not prudent'' determination without specific 
evidence of the threat to the species at issue (2 F. Supp. 2d 1280 [D. 
Hawaii 1998]). Additionally, in Natural Resources Defense Council v. 
U.S. Department of the Interior, the United States Court of Appeals for 
the Ninth Circuit ruled that the Service must balance, in order to 
invoke the ``increased threat rationale,'' the threat against the 
benefit to the species of designating critical habitat (113 F. 3d 1121, 
1125 [9th Cir. 1997]).
    At this time, we do not have specific evidence for overcollection 
or vandalism specific to this plant and its habitat. The courts also 
have ruled that, in the absence of a finding that the designation of 
critical habitat would increase threats to a species, the existence of 
another type of protection, even if it offers potentially greater 
protection to the species, does not justify a ``not prudent'' finding 
(Conservation Council for Hawaii v. Babbitt 2 F. Supp. 2d 1280). We are 
already working with Federal, State of California, County of San Diego, 
and City of San Diego agencies and organizations in carrying out 
conservation activities for this plant and conducting surveys for 
additional occurrences of the species and to assess habitat conditions. 
These entities are fully aware of the distribution, status, and habitat 
requirements for this plant. We have reconsidered our evaluation of the 
threats posed by collection and vandalism in the prudency 
determination. We have determined that the threats to Monardella 
linoides ssp. viminea from specific instances of collection vandalism 
are speculative. Accordingly, we withdraw our previous determination 
that the designation of critical habitat is not prudent for M. l. ssp. 
viminea. Therefore, we determine that the designation of critical 
habitat is prudent for M. l. ssp. viminea. At this time, we have 
sufficient information necessary to identify specific features as 
essential to the conservation of M. l. ssp. viminea and are therefore, 
proposing critical habitat (see ``Methods'' section below for a 
discussion of information used in our reevaluation). In total, we have 
determined that approximately 2,539 acres (ac) (1,028 hectares (ha)) of 
land within San Diego County, California, contain the primary 
constituent elements essential to the conservation of M. l. ssp. 
viminea.

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'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of critical habitat. The designation of critical habitat 
does not affect land ownership or establish a refuge, wilderness, 
reserve, preserve, or other conservation area. Such designation does 
not allow government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements (PCEs), 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

[[Page 67961]]

require special management or protection. Thus, we do not include areas 
where existing management is sufficient to conserve the species. (As 
discussed below, such areas may also be excluded from critical habitat 
pursuant to section 4(b)(2)). With regard to areas not known to be 
occupied by the species at the time of listing, we will designate such 
areas when the best available scientific data indicates that the 
conservation needs of the species so require.
    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 (P.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 (P.L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the action. Federally funded or permitted projects 
affecting listed species outside their designated critical habitat 
areas may still result in jeopardy findings in some cases. Similarly, 
critical habitat designations made on the basis of the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Monardella linoides 
ssp. viminea. Information sources included data from research and 
survey observations published in peer-reviewed articles; survey reports 
submitted as requirement of obtaining a section 10(a)(1)(A) permit; 
regional Geographic Information System (GIS) data from the San Diego 
Multiple Species Conservation Program (MSCP), soil, and species 
coverages (including layers for the City of San Diego and MCAS 
Miramar); and data compiled in the California Natural Diversity Data 
Base (CNDDB). We have also reviewed available information that pertains 
to the habitat requirements of this species. The material included data 
in reports submitted during section 7 consultations; research published 
in peer-reviewed articles and agency reports; and, regional GIS 
coverages. We are not proposing critical habitat in areas outside the 
geographical area occupied at the time of listing. The Otay Mountain 
population, discovered after the publication of the final listing rule, 
is approximately 4.75 miles (7.6 kilometers) west of the known 
population at Marron Valley. We consider the Otay Mountain occurrence 
to be a confirmation of the distribution of M. l. ssp. viminea within 
southern San Diego County. We are considering whether to exclude the 
Otay Mountain population from critical habitat in the final rule, as 
discussed below in the Exclusions section of this proposed rule.
    We have reviewed and used the best available information about 
known occurrences and habitat requirements of Monardella linoides ssp. 
viminea. We delineated the boundaries of habitat containing features 
essential to the conservation of species by outlining the local 
drainage area from the upper-to the lower-most occurrence point within 
each occupied drainage area following topographic lines on USGS 
topographical maps. The majority of the occurrence points are based on 
data collected in 1998 and 2002 and were used to delineate the up- and 
down-stream boundaries of habitat containing features essential to the 
conservation of species within each drainage.
    These areas were further refined by gathering information about 
these areas with Service biologists and other knowledgeable individuals 
familiar with Monardella linoides ssp. viminea and their habitat. After 
creating GIS coverage of the areas containing features essential to the 
conservation of species, we created legal descriptions using a 100-
meter grid to establish Universal Transverse Mercator (UTM) North 
American Datum 27 (NAD 27) coordinates which, when connected, provided 
the boundaries of the area proposed as critical habitat.

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 are required to base critical habitat determinations on the 
best scientific data available and to consider those physical and 
biological features (primary constituent elements (PCEs)) that are 
essential to the conservation of the species, and that may require 
special management considerations and 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 PCEs required for Monardella linoides ssp. viminea are 
derived from the biological needs of the species as described below and 
in the final listing rule for M. l. ssp. viminea (October 13, 1998; 63 
FR 54937).

Space for Individual and Population Growth and Normal Behavior

    Open or semi-open rocky, sandy alluvium on terraced floodplains, 
benches, stabilized sandbars, channel banks, and sandy washes along 
ephemeral streams, washes, and

[[Page 67962]]

floodplains are needed for individual and population growth of 
Monardella linoides ssp. viminea (October 13, 1998; 63 FR 54938) (PCE 
1). M. l. ssp. viminea in the Otay Lakes/Marron Valley area also occur 
in cracks of bedrock of ephemeral drainages. While little is known 
about the space needed for reproduction, flowing water appears to be 
important for transporting seeds and vegetative shoots (Mark Elvin, 
botanist, Dudek and Associates, pers. comm. to C. Lieberman, U.S. Fish 
and Wildlife Service, 2003). Animals may also be important for seed 
dispersal. We are unaware of any studies documenting specific 
pollinators of M. l. ssp. viminea; however, the floral structure 
suggests insect pollination. Intermittently flooded areas are dynamic 
such that the stream path and the location of benches and sandbars 
along the shoreline may change depending on seasonal water flows. 
Therefore, the riparian corridor where M. l. ssp. viminea is found is 
an integral part of and important for providing space for growth and 
reproduction within this dynamic ecosystem.

Water and Physiological Requirements

    A natural hydrologic regime that includes intermittent flooding 
during the rainy season is needed to maintain washes and sandbars where 
Monardella linoides ssp. viminea grows (PCE 2) (October 13, 1998; 63 FR 
54938). Large intermittent water flows resulting from seasonal rains 
and major flooding events erode and deposit alluvial material, 
developing benches and sandbars used by M. l. ssp. viminea. These 
seasonal rains and intermittent flooding events may also be important 
for transporting seeds and vegetative shoots as stated above and are 
needed to maintain the open or semi-open riparian areas with little or 
no canopy cover needed to ensure that the species receives adequate 
sunlight for nutrient uptake (photosynthesis) (PCE 3).

Primary Constituent Elements for Monardella linoides ssp. viminea

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the habitat requirements to sustain the 
essential life history functions of the species, we have determined 
that the PCEs essential for the conservation of Monardella linoides 
ssp. viminea are:
    (1) Coarse, rocky, sandy alluvium on terraced floodplains, benches, 
stabilized sandbars, channel banks, and sandy washes along and within 
the ephemeral drainages that provide space for growth, reproduction, 
and dispersal;
    (2) Ephemeral drainages where water flows only after peak seasonal 
rains and major flooding events and periodically scours riparian 
vegetation and redistributes alluvial material by eroding and 
developing stream channels, benches, and sandbar and thus maintains 
necessary dynamic habitat processes for the species; and
    (3) Coastal sage and riparian scrub with an open and semi-open 
canopy and little or no herbaceous understory situated along ephemeral 
drainages and adjacent floodplains to ensure that the subspecies 
receives adequate sunlight for nutrient uptake for photosynthesis.

Criteria Used to Identify Critical Habitat

    We are proposing to designate critical habitat on lands that were 
known to be occupied at the time of listing and contain the PCEs for 
Monardella linoides ssp. viminea. We used the following criteria to 
identify these areas: (1) Areas known to be occupied at the time of 
listing and/or known to be currently occupied; and (2) ephemeral washes 
and drainage areas associated with documented occurrences.
    These areas were then analyzed with respect to special management 
considerations or protections. Subsequently, we identified areas we are 
exempting from critical habitat designation based on provisions of 
section 4(a)(3) of the Act and other areas we are considering excluding 
from critical habitat based on the provisions of section 4(b)(2) of the 
Act.
    Using the above criteria, we identified 10 areas that contain 
features essential to the conservation of M. l. ssp. viminea, one in 
each of the following canyons/geographic areas: (1) Sycamore Canyon, 
(2) West Sycamore Canyon, (3) Spring Canyon, (4) San Clemente Canyon, 
(5) Elanus Canyon, (6) Lopez Canyon, (7) Marron Valley, (8) Otay Lakes 
(also known as Cedar Canyon), (9) Otay Mountain, and (10) Rose Canyon 
(MCAS Miramar). All 10 areas, except Otay Mountain, were known to be 
occupied at the time of listing, and all 10 areas, including Otay 
Mountain, are currently known to be occupied.
    When mapping proposed critical habitat boundaries, we made every 
effort to remove all lands containing developed areas such as 
buildings, paved areas, boat ramps and other structures that lack PCEs 
for Monardella linoides ssp. viminea. Any lands containing such 
structures that could not be removed from the maps, due to the mapping 
scale used, are excluded by this text from critical habitat. Therefore, 
Federal actions limited to these lands would not trigger section 7 
consultations, unless they affect the species and/or PCEs in adjacent 
critical habitat.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing that contain one or 
more PCEs may require special management considerations or protections.
    As stated in the final listing rule, threats to Monardella linoides 
ssp. viminea include habitat alteration resulting from urban 
development, sand and gravel mining, off-road vehicle (ORV) activities, 
trampling, trash dumping, erosion, and invasion of nonnative species 
(October 13, 1998; 63 FR 54938). These activities could impact the PCEs 
determined to be essential for conservation of M. l. ssp. viminea.
    Urban development and sand and gravel mining upstream of Monardella 
linoides ssp. viminea occurrences may alter the hydrologic regime 
needed to maintain the habitat characteristics required by M. l. ssp. 
viminea. Conversion of intermittent water flows to persistent water 
flows may increase scour and erode terraces and benches, washing away 
rooted plants and reducing available habitat (PCEs 1 and 2). Kelly and 
Burrascano (2001) attribute disappearance of terraces in Lopez Canyon 
to increased erosion associated with urban runoff from upstream 
development. Water diversion, such as water removal from the drainage 
system occupied by the subspecies could reduce the amount of water 
flowing downstream following seasonal flooding events resulting in 
decreased deposition of alluvial material and a subsequent reduction in 
the amount of available habitat (PCEs 1 and 2). Disruption of the 
hydrologic cycle could also result in a decrease in the number of seeds 
that could have been transported downstream during seasonal flooding 
events, thereby, fragmenting populations (PCE 2). The use of pesticides 
or herbicides in residential and commercially landscaped areas within 
the watershed may impact water quality if used upslope or above a 
stream (PCE 2). Special management such as bank replacement or 
stabilization to maintain the substrate, restoration of intermittent 
water flows, erosion and runoff control measures, and prohibitions 
against grading during the rainy season may be required to reduce 
impacts to M. l. ssp. viminea habitat resulting from alteration of the 
hydrologic regime due to development within the local watershed.

[[Page 67963]]

    Alteration of the hydrologic regime also can result in an increase 
in native and nonnative plant species invading the riparian areas where 
M. l. ssp. viminea occurs. Increased water flow associated with urban 
runoff has led to dense stands of riparian vegetation in the upper 
reaches of Lopez Canyon where M. l. ssp. viminea once occurred (Kelly 
and Burrascano 2001). Increases in riparian vegetation within ephemeral 
drainages may also be responsible for losses of M. l. ssp. viminea in 
lower San Clemente Canyon. Conversely, decreased water availability may 
result in conversion of habitat from mesic to xeric, adversely 
impacting M. l. ssp. viminea. More drought tolerant plants could expand 
into M. l. ssp. viminea habitat and create unnaturally high canopy 
cover or dense riparian vegetation that could crowd M. l. ssp. viminea 
out or render the habitat unsuitable by creating excessive shading (PCE 
3). Special management may be required to remove invasive species to 
maintain an open or semi-open canopy of coastal sage and riparian scrub 
with minimal herbaceous understory required by M. l. ssp. viminea for 
persistence (PCE 3).
    Human use (e.g., ORV activities and trampling) along streams can 
change the character of the riparian area and associated vegetation in 
ways that make portions of the riparian corridor less suitable as 
habitat for M. l. ssp. viminea. For example, heavy trampling may erode 
or denude stream banks and washes, thereby, reducing or eliminating 
available habitat (PCE 1). Special management such as bank replacement 
or stabilization to maintain the substrate and prohibitions against ORV 
use during the rainy season may be required to reduce impacts to M. l. 
ssp. viminea habitat resulting from human use within the local 
watershed.

Proposed Critical Habitat Designation

    As stated above, we identified 10 canyons/geographic areas 
containing habitat with features essential to the conservation of this 
species. We are proposing critical habitat within a portion of Sycamore 
Canyon (Unit 1) within the City of Santee. We are exempting under 
section 4(a)(3) of the Act, all lands within MCAS Miramar (Rose Canyon 
and portions of San Clemente Canyon, Elanus Canyon, Spring Canyon, West 
Sycamore Canyon, and Sycamore Canyon) from this critical habitat 
designation. We are also considering excluding from this critical 
habitat designation a portion of Sycamore Canyon and all of West 
Sycamore Canyon, Spring Canyon, San Clemente Canyon, Elanus Canyon, 
Lopez Canyon, Marron Valley, Otay Lakes, and Otay Mountain under 
section 4(b)(2) of the Act. Table 2 below provides approximate area 
(ac/ha) of lands being proposed as critical habitat for M. l. ssp. 
viminea and information about landownership within this unit.
    The proposed critical habitat unit described below constitutes our 
best assessment at this time of those areas determined to be occupied 
at the time of listing that contain one or more PCEs essential to the 
conservation of the Monardella linoides ssp. viminea that may require 
special management. A brief description of the proposed critical 
habitat unit and reasons why this unit is essential for the 
conservation of M. l. ssp. viminea is presented below.

 Table 2.--Ownership and Approximate Areas (ac/ha) Proposed as Critical
              Habitat for Monardella linoides ssp. viminea
------------------------------------------------------------------------
                                                    Proposed critical
             Unit                 Ownership        habitat acres (ac)
                                                     (hectares (ha))
------------------------------------------------------------------------
Unit 1: Sycamore Canyon......  Private........  114 ac (46 ha).
                               Water District.  1 ac (1 ha).
                               Total..........  115 ac (47 ha)
------------------------------------------------------------------------

Unit Description

Unit 1: Sycamore Canyon: (115 ac (47 ha))

    Sycamore Canyon area supports one of the largest occurrences of 
Monardella linoides ssp. viminea (CNDDB 2001) and was known to be 
occupied at the time of listing and is currently known to be occupied 
(Table 1). Lands in Unit 1 contain one or more of the PCEs identified 
for M. l. ssp. viminea. This unit is important for the conservation of 
M. l. ssp. viminea because it represents one of the ten canyons/
geographic areas in San Diego County that support this species and one 
of only 14 occurrences of this M. l. ssp. viminea. Given the restricted 
range and low numbers of occurrences, this unit is essential to 
minimize the risk of extinction from random events and urban 
development.
    Approximately 114 ac (46 ha) in Unit 1 are private lands and 
located within the City of Santee on lands being proposed for the 
Fanita Ranch development project. Fanita Ranch is currently developing 
a habitat conservation plan that will serve as the foundation for the 
City of Santee's subarea plan under the MSCP. In the future, we may 
consider excluding Fanita Ranch from critical habitat designation based 
on a pending or approved HCP that provide benefits for M. l. ssp. 
viminea or an approved conservation agreement between the Service and 
Fanita Ranch that provides assurances of the conservation measures that 
Fanita Ranch will undertake to protect and manage for M. l. ssp. 
viminea on their lands. Fanita Ranch has provided the Service with a 
letter that expressed their interest in working together to prepare a 
conservation agreement for M. l. ssp. viminea that would provide the 
basis for excluding their lands from designation under section 4(b)(2) 
of the Act.
    Likewise, approximately 1 ac (1 ha) in Unit 1 is on lands owned by 
the Padre Dam Municipal Water District. This water district, along with 
Helix Water District, Santa Fe Irrigation District, and Sweetwater 
Authority, is developing a multiple species habitat conservation plan 
under section 10(a)(1)(B) of the Act. We published a notice of intent 
to prepare an environmental impact statement/environmental impact 
report for a Natural Communities Conservation Plan and HCP on February 
4, 2005 (February 4, 2005; 70 FR 6033). In the future, we may consider 
excluding Padre Dam Municipal Water District from critical habitat 
designation based on a pending or approved HCP that provide benefits 
for M. l. ssp. viminea or an approved conservation agreement between 
the Service and Padre Dam Municipal Water District that provides 
assurances of the conservation measures that Padre Dam Municipal Water 
District will undertake to protect and manage for M. l. ssp. viminea on 
their lands.
    Habitat with features essential to the conservation of M. l. ssp. 
viminea on

[[Page 67964]]

private and Padre Dam Municipal Water District lands in Unit 1 may 
require special management to minimize impacts by nonnative invasive 
weeds, fire, indirect and direct effects of development, including 
altered hydrology, and recreational activities.

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. 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.'' We are currently 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of 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. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report 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)). Until such a time as a proposed designation is finalized, 
any reasonable and prudent alternatives or reasonable and prudent 
measures included in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) 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. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in 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 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 critical 
habitat is subsequently designated 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 or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Monardella linoides ssp. 
viminea or its critical habitat will require section 7 consultation. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of M. l. ssp. viminea. In some cases, the PCEs exist as a 
result of ongoing federal actions. As a result, ongoing federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.
    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 M. l. ssp. 
viminea. Federal activities that, when carried out, may adversely 
affect critical habitat for the M. l. ssp. viminea include, but are not 
limited to:
    (1) Actions that would significantly alter the natural hydrologic 
pattern of intermittent flows and peak seasonal flooding necessary to 
support Monardella linoides ssp. viminea. These activities could 
include Federal authorization for urban and agricultural development in 
the watershed that changes the amount, timing, frequency, and magnitude 
of stream flows. Increased and/or more frequent water flows associated 
with urban runoff could lead to dense stands of riparian vegetation 
that may out-compete M. l. ssp. viminea. Changes in the magnitude of 
seasonal flooding may increase scouring and erosion of terraces, banks, 
and benches and thereby reduce the quality and availability of suitable 
soils and habitat. Conversely, reduced water flow could result in more 
xeric conditions that would limit plant growth and reproduction and 
thereby allowing more drought tolerant plants to compete with M. l. 
ssp. viminea.
    (2) Actions that would remove alluvium from stream channels or 
change the physical structure of the stream channel by altering 
floodplains, benches, sand bars, and stream channels from sand and 
gravel mining, stream channelization, flood channel management, highway 
construction, and dredging. Federal authorization for projects that 
physically alter the stream channel may remove suitable alluvium from 
stream channels and result in the loss and degradation of habitat for 
M. l. ssp. viminea.

[[Page 67965]]

Application of Section 4(a)(3) and Possible Exclusions Under Section 
4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographical area occupied by the species at the time 
of listing on which are found those physical and biological features 
(i) essential to the conservation of the species and (ii) which may 
require special management considerations or protection. Therefore, 
areas within the geographical area occupied by the species at the time 
of listing that do not contain the features essential for the 
conservation of the species are not, by definition, critical habitat. 
Similarly, areas within the geographical area occupied by the species 
at the time of listing that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current plan to provide adequate management or 
protection if it meets two criteria: (1) The plan provides management, 
protection or enhancement to the PCEs at least equivalent to that 
provided by a critical habitat designation; and (2) the Service has 
reasonable expectation the management, protection or enhancement 
actions will continue for the foreseeable future.
    Section 318 of fiscal year 2004 the National Defense Authorization 
Act (Pub. L. 108-136) amended the Endangered Species Act to address the 
relationship of Integrated Natural Resources Management Plans (INRMPs) 
to critical habitat by adding a new section 4(a)(3)(B). This provision 
prohibits the Service from designating as critical habitat any lands or 
other geographical areas owned or controlled by the Department of 
Defense, or designated for its use, that are subject to an INRMP 
prepared under section 101 of the Sikes Act (16 U.S.C. 670a), if the 
Secretary of the Interior determines in writing that such plan provides 
a benefit to the species for which critical habitat is proposed for 
designation.
    Further, 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. An area may be excluded from 
critical habitat if it is determined that the benefits of exclusion 
outweigh the benefits of specifying a particular area as critical 
habitat, unless the failure to designate such area as critical habitat 
will result in the extinction of the species.
    For our critical habitat designations, we use the provisions 
outlined in sections 3(5)(A), 4(a)(3) and 4(b)(2) of the Act to 
evaluate those specific areas that we consider proposing as critical 
habitat. Lands we have found that do not meet the definition of 
critical habitat under section 3(5)(A) or that we are considering 
excluding pursuant to section 4(b)(2) include those covered by legally 
operative HCPs that cover the species.
    The following index figure provides an overview of the areas we are 
exempting under section 4(a)(3) of the Act and considering excluding 
under section 4(b)(2) of the Act from critical habitat.
BILLING CODE 4310-55-P

[[Page 67966]]

[GRAPHIC] [TIFF OMITTED] TP09NO05.003

BILLING CODE 4310-55-C

[[Page 67967]]

Relationship of Critical Habitat to Military Lands--Application of 
Section 4(a)(3)

    As discussed above, under section 4(a)(3) of the Act, the Secretary 
is prohibited from designating as critical habitat any Department of 
Defense lands or other geographical areas that are subject to an INRMP 
if the Secretary has determined in writing that such plan provides a 
benefit to the species for which critical habitat is proposed for 
designation. In order to qualify for this exemption, an INRMP must be 
found to provide a benefit to the species in question. An INRMP 
integrates implementation of the military mission of the installation 
with stewardship of the natural resources found there. Each INRMP 
includes an assessment of the ecological needs on the military 
installation, including conservation provisions for listed species; a 
statement of goals and priorities; a detailed description of management 
actions to be implemented to provide for these ecological needs; and a 
monitoring and adaptive management plan. We consult with the military 
on the development and implementation of INRMPs for installations with 
listed species. Habitat on military installations with completed and 
approved INRMPs that provide a benefit to the species are exempt from 
designation as critical habitat pursuant to section 4(a)(3)(B).
    We believe that the INRMP for MCAS Miramar provides a benefit for 
Monardella linoides ssp. viminea. Therefore, we are exempting MCAS 
Miramar from critical habitat designation under section 4(a)(3) of the 
Act based on the legally operative INRMP for this station (Unit 2). 
Through our process of identifying areas that contain features 
essential to the conservation of  M. l. ssp. viminea, we found that 
1,863 ac (754 ha) on MCAS Miramar contain the features that are 
essential to the conservation of M. l. ssp. viminea. MCAS Miramar, 
which contains a large majority of the mapped M. l. ssp. viminea 
occurrences in the United States, has developed and is currently 
implementing their INRMP for the Station. The INRMP identifies 
management areas for specific endangered species, including M. l. ssp. 
viminea. The INRMP integrates current and future land use activities at 
MCAS Miramar with natural resources management and conservation. 
Chapter 7 of the INRMP outlines objectives and planned activities for 
the Station. High priority planned activities include management of 
wetlands and their associated watersheds to maintain no-net-loss of 
wetland values as well as management of special status species, 
including M. l. ssp. viminea. Over 99 percent of M. l. ssp. viminea 
populations within MCAS Miramar are protected within specific 
management areas (Dames and Moore 2000). Specific measures, such as 
management and monitoring of sensitive biological resources, apply to 
these management areas. Future development projects within MCAS Miramar 
should avoid these management areas. The U.S. Marines have initiated 
long-term monitoring and management of M. l. ssp. viminea on MCAS 
Miramar (San Diego Natural History Museum 2002). The U.S. Marines 
conducted baseline surveys for M. l. ssp. viminea during the spring of 
2002. Any future projects on the station that may affect M. l. ssp. 
viminea will be subject to consultation between MCAS Miramar and the 
Service under section 7 of the Act. We therefore believe that the 
ongoing protection, management and monitoring of M. l. ssp. viminea 
provided under the MCAS Miramar INRMP provides a benefit to the 
species. Therefore, we are exempting MCAS Miramar lands from critical 
habitat designation under Section 4(a)(3) of the Act.
    The U.S. Marine Corps is currently working on a draft version of 
their update of this INRMP which further addresses management and 
conservation of Monardella linoides ssp. viminea. This updated plan 
includes detailed mapping of M. l. ssp. viminea, places 99 percent of 
the point occurrences in areas that focus on natural resource 
management referred specifically to as ``Level Two Management Areas,'' 
and outlines specific projects that will be funded to aid in the 
conservation of M. l. ssp. viminea (pers. comm. David Boyer, Director, 
Natural Resources Division, Environmental Management Department, MCAS 
Miramar to Jonathan Snapp-Cook, Fish and Wildlife Biologist, Service, 
October 4, 2005). The updated INRMP will provide additional benefits to 
M. l. ssp. viminea.
    The following figure shows the areas of MCAS Miramar that we are 
exempting from critical habitat designation under section 4(a)(3) of 
the Act:
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Relationship of Critical Habitat to Habitat Conservation Plans--
Possible Exclusions Under Section 4(b)(2) of the Act

San Diego Multiple Species Conservation Program (MSCP)

    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 available after taking into consideration the economic impact, 
impact on national security, and any other relevant impact, of 
specifying any particular area as critical habitat. An area may be 
excluded from critical habitat if it is determined that the benefits of 
such exclusion outweigh the benefits of specifying the area as critical 
habitat, unless the failure to designate such area will result in the 
extinction of the species. Consequently, we may exclude an area from 
critical habitat based on economic impacts, impacts on national 
security, or other relevant impacts such as preservation of 
conservation partnerships, if we determine the benefits of excluding an 
area from critical habitat outweigh the benefits of including the area 
in critical habitat, provided the action of excluding the area will not 
result in the extinction of the species.
    Below, we first provide some general background information on the 
San Diego MSCP, followed by an analysis pursuant to section 4(b)(2) of 
the Act of the benefits of including San Diego MSCP lands within the 
critical habitat designation, an analysis of the benefits of excluding 
these lands, and an analysis of why we believe the benefits of 
exclusion are greater than those of inclusion. Finally, we provide a 
determination that exclusion of these lands would not result in 
extinction of Monardella linoides ssp. viminea.
    We are considering excluding from critical habitat designation 
approximately 494 ac (200 ha) of non-Federal lands within the City of 
San Diego subarea plan and the County of San Diego subarea plan of the 
San Diego MSCP under section 4(b)(2) of the Act. Monardella linoides 
ssp. viminea is a covered species under these two approved and legally 
operative subarea plans. We completed our section 7 consultations on 
the issuance of the section 10(a)(1)(B) permit for the City of San 
Diego subarea plan on June 6, 1997, and on the permit for the County of 
San Diego subarea plan on March 12, 1988. These HCPs provide special 
management and protection for the physical and biological features 
essential for the conservation of M. l. ssp. viminea that exceed the 
level of regulatory control that would be afforded this species by the 
designation of critical habitat. We believe that the benefits of 
excluding essential habitat covered by these HCPs from the critical 
habitat designation would outweigh the benefits of including them as 
critical habitat, and that the exclusion under consideration would not 
result in the extinction of M. l. ssp. viminea.
    In southwestern San Diego County, the MSCP effort encompasses more 
than 582,000 ac (236,000 ha) and anticipates the participation of 12 
jurisdictions. Under the broad umbrella of the MSCP, each of the 12 
participating jurisdictions prepares a Subarea Plan that implements the 
goals of the MSCP within that particular jurisdiction. Three of the 12 
jurisdictions cover lands that support Monardella linoides ssp. 
viminea. Two of the jurisdictions, County of San Diego and the City of 
San Diego, have completed subarea plans. The third jurisdiction, the 
City of Santee, is currently preparing its subarea plan. We conduct a 
consultation on each subarea plan and associated permit under section 7 
of the Act to ensure they are not likely to result in jeopardy, or 
adversely modify or destroy the designated critical habitat, of any 
covered species. We also review the plans under Section 10 of the Act 
to ensure they meet the criteria for issuance of an incidental take 
permit and are consistent with the terms and goals of the MSCP. As 
noted above, we completed each of these analyses prior to approving the 
City and County of San Diego subarea plans and incidental take permits.
    The regional MSCP is also a regional subarea plan under the State 
of California's Natural Communities Conservation Plan (NCCP) program 
and was developed in cooperation with California Department of Fish and 
Game (CDFG). Over the 50 year term of the City and County permits, the 
MSCP provides for the establishment of approximately 171,000 ac (69,573 
ha) of preserve lands within the Multi-Habitat Planning Area (MHPA) 
(City of San Diego) and Pre-Approved Mitigation Areas (PAMA) (County of 
San Diego) to benefit the 85 federally listed and sensitive species, 
including Monardella linoides ssp. viminea, covered under the plan. 
Private lands within the MHPA and PAMA lands are subject to special 
restrictions on development and, as they are committed to the preserve, 
must be legally protected and permanently managed to conserve the 
covered species. Public lands owned by the City and County and by the 
State of California and Federal government that are identified for 
conservation under the MSCP must also be protected and permanently 
managed to protect the covered species. The MSCP requires the City and 
County to develop broad framework and site specific management plans, 
subject to the review and approval of the Service and CDFG, to guide 
the management of all preserve lands under City and County control. The 
plans incorporate requirements to monitor and adaptively manage M. l. 
ssp. viminea habitats over time. Under the MSCP, the State and Federal 
governments have also committed to provide similar management for their 
preserve lands.
    As discussed above, each take authorization holder will prepare a 
framework management plan as a condition of its implementing agreement. 
The framework management plan will provide general direction for all 
preserve management issues within the subarea plan's boundaries. Area-
specific management directives will be developed for managing lands 
that are conserved as part of the reserves. The framework and area-
specific management plans are comprehensive and address a broad range 
of management needs at the preserve and species levels. These plans 
include the following: (1) Fire management, (2) public access control, 
(3) fencing and gates, (4) ranger patrol, (5) trail maintenance, (6) 
visitor/interpretive and volunteer services, (7) hydrological 
management, (8) signage and lighting, (9) trash and litter removal, 
(10) access road maintenance, (11) enforcement of property and/or 
homeowner requirements, (12) removal of invasive species, (13) 
nonnative predator control, (14) species monitoring, (15) habitat 
restoration, (16) management for diverse age classes, (17) use of 
herbicides and rodenticides, (18) biological surveys, (19) research, 
and (20) species management conditions (Final MSCP Plan 1998). These 
management measures benefit Monardella linoides ssp. viminea and reduce 
the threats to this species. The MSCP also provides for a biological 
monitoring program, and M. l. ssp. viminea is identified as a first 
priority plant species for field monitoring (Ogden Environmental and 
Energy Services 1996). Species prioritized for field monitoring (like 
M. l. ssp. viminea) face the greatest threats to their viability, and 
detailed field monitoring would assess both immediate threats and long-
term population trends. The City of San Diego monitors M. l. ssp. 
viminea on an annual basis (City of San Diego 2000, 2001, 2002, 2003, 
and 2004). Moreover, the rare plant monitoring plan is being updated 
with the assistance of the U.S.

[[Page 67970]]

Geological Survey Biological Research Division and a three member 
independent scientific advisory group.
    In addition to the restrictions on development and conservation 
obligations that apply within the MHPA and PAMA, the MSCP incorporates 
processes to protect sensitive species of limited distribution, 
including Monardella linoides ssp. viminea, within the plan area. Under 
the City of San Diego's subarea plan, impacts to narrow endemic species 
inside the MHPA will be avoided and outside the MHPA will be protected 
as appropriate by (1) avoidance, (2) management, (3) enhancement, and/
or (4) transplantation to areas identified for preservation. Under the 
County of San Diego's subarea plan, narrow endemic plants, including M. 
l. ssp. viminea, would be conserved under their Biological Mitigation 
Ordinance using a process that (1) requires avoidance to the maximum 
extent feasible, (2) allows for a maximum 20 percent encroachment into 
a population if total avoidance is not feasible, and (3) requires 
mitigation at the 1:1 to 3:1 (in kind) for impacts if avoidance and 
minimization of impacts would result in no reasonable use of the 
property. Thus, these processes to protect narrow endemic plants, 
including M. l. ssp. viminea, whether located on lands targeted for 
preserve status within the MHPA and PAMA or located outside of those 
areas, ensure these limited distribution species are protected wherever 
they occur. Considered as a whole, the protection and management of M. 
l. ssp. viminea provided under the City and County subarea plans will 
ensure the permanent conservation of this species and its habitat 
within the areas covered by the plans.
    We are therefore considering excluding from critical habitat a 
portion of Sycamore Canyon and all of West Sycamore Canyon, Spring 
Canyon, San Clemente Canyon, Elanus Canyon, Lopez Canyon, Marron 
Valley, and Otay Lakes under section 4(b)(2) of the Act because they 
are covered by the City and the County subarea plans. All of the 
populations of Monardella linoides ssp. viminea anticipated to be 
conserved by the MSCP under the City of San Diego and County of San 
Diego subarea plans occur in these geographical areas. These 
populations will be conserved and will be managed and monitored 
pursuant to or consistent with the MSCP. The framework and area-
specific management plans (described above) provide management and 
monitoring of M. l. ssp. viminea.
    The portions of Sycamore Canyon (Units 3A, 3B, and 3C) that we are 
considering excluding from critical habitat are under City and County 
ownership and are within the reserve design of the MHPA and PAMA under 
the City's and County's subarea plans. The majority of the County-owned 
PAMA lands in Sycamore Canyon has already been conserved and is being 
managed for the conservation of covered species, including Monardella 
linoides ssp. viminea, consistent with the framework and area-specific 
management plans described above. The remaining County-owned lands and 
City-owned lands in Sycamore Canyon have not yet been formally 
committed to the preserve but will continue to be protected through the 
City's and County's subarea plans processes to protect narrow endemic 
species (described above) until these lands become part of the 
preserve.
    Lands in West Sycamore Canyon (Unit 3D) that we are considering 
excluding from critical habitat are under City ownership and are within 
the reserve design of the MHPA. These lands have been already conserved 
and are being managed for the conservation of covered species 
consistent with the framework and area-specific management plans 
described above, including Monardella linoides ssp. viminea under the 
City's subarea plan.
    Lands in Spring Canyon (Unit 3E) that we are considering excluding 
from critical habitat are under private ownership but are within the 
reserve design of the MHPA and are targeted for preservation under the 
City's subarea plan. The private lands in Spring Canyon have not yet 
been formally committed to the preserve, but are within an area that 
calls for 100 percent conservation of Monardella linoides ssp. viminea. 
The City of San Diego has recently acquired private lands in Spring 
Canyon through the MSCP that will benefit M. l. ssp. viminea. 
Populations of M. l. ssp. viminea on the remaining private lands will 
continue to be protected through the City's subarea plan process 
described above to protect narrow endemic species until these private 
lands become part of the preserve.
    Lands in San Clemente Canyon (Unit 4) that we are considering 
excluding from critical habitat are under City ownership. The majority 
of these lands is within the reserve design of the MHPA, has been 
committed to the preserve, and is being managed for the conservation of 
covered species consistent with the framework and area-specific 
management plans described above, including Monardella linoides ssp. 
viminea, under the City's MSCP subarea plan. A small portion of these 
lands is on City-owned lands that are not within the MHPA. Populations 
of M. l. ssp. viminea on the remaining City-owned lands will continue 
to be protected through the City's subarea plan process described above 
to protect narrow endemic species.
    Lands in Elanus Canyon (Unit 5) that we are considering excluding 
from critical habitat are under City ownership and are within the 
reserve design of the MHPA. They are committed to the preserve and are 
being managed for the conservation of covered species, including 
Monardella linoides ssp. viminea, under the City's subarea plan.
    Lands in Lopez Canyon (Unit 6) that we are considering excluding 
from critical habitat are under City ownership and are within the 
reserve design of the MHPA. The lands are committed to the preserve and 
are being managed for the conservation of covered species, including 
Monardella linoides ssp. viminea, under the City's subarea plan.
    Lands in Marron Valley (Unit 7) that we are considering excluding 
from critical habitat are under City and State ownership and are within 
the reserve design of the MHPA. The City-owned lands have been 
committed to the preserve and are being managed for the conservation of 
covered species, including Monardella linoides ssp. viminea, under the 
City's subarea plan.
    Lands in Otay Lakes (Unit 8) that we are considering excluding from 
critical habitat are under City of San Diego, City of Chula Vista, 
State of California, and private ownership; are within the MHPA and 
PAMA; and are either already committed to the preserve or are targeted 
for 100 percent preservation under the City's and County's subarea 
plans. The lands owned by the City of Chula Vista were formerly owned 
by Otay Ranch and were conveyed to the City as mitigation of the Otay 
Ranch development. These lands are conserved within the County of San 
Diego's subarea plan. The preserve lands are being managed for the 
conservation of the covered species, including Monardella linoides ssp. 
viminea, under the City's and County's subarea plans and pursuant to 
commitments made by the State of California to implement the MSCP on 
state owned lands. Those lands not yet formally committed to the 
preserve will continue to be protected through the County's subarea 
plan process described above to protect narrow endemic species until 
these lands become part of the preserve.
    The following figures show the San Diego MSCP lands that we are 
considering excluding from critical

[[Page 67971]]

habitat designation under section 4(b)(2) of the Act:
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[[Page 67975]]

(1) Benefits of Inclusion
    Overall, we believe that there is minimal benefit from designating 
critical habitat for Monardella linoides ssp. viminea within approved 
subarea plans under the San Diego MSCP. As explained above, the 
majority of these lands are either already permanently protected and 
managed for the conservation of covered species, including M. l. ssp. 
viminea or are subject to restrictions on development and City's and 
County's subarea plans' processes described above to protect narrow 
endemic species. These processes will protect narrow endemic species, 
including M. l. ssp. viminea, until these lands become part of the 
preserve. Below, we discuss benefits of inclusion of these HCP lands.
    A benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
that directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The designation of critical habitat may provide a level of protection 
under section 7(a)(2) of the Act for Monardella linoides ssp. viminea 
that is distinct from the obligation of a Federal agency to ensure that 
their actions are not likely to jeopardize the continued existence of 
the endangered species. Gifford Pinchot arguably makes it easier to 
reach an `adverse modification' finding by reducing the harm or 
affecting recovery, rather than the survival of the species. Thus, 
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, there is also an important limitation inherent in 
section 7(a)(2). This provision limits adverse effects to the species 
and its designated critical habitat either through jeopardy or 
destruction or adverse modification analyses. It does not require 
positive improvements to or enhancement of the species' status. Thus, 
any management plan will almost always provide more benefit than the 
critical habitat designation, particularly where, as is the case for M. 
l. ssp. viminea, the species may require active management to recover.
    The areas being considered for exclusion from critical habitat are 
currently occupied by the species. Therefore, for Federal actions that 
may affect lands occupied by Monardella linoides ssp. viminea and may 
adversely affect the species, consultation would be required, even 
without the critical habitat designation under section 7 of the Act. If 
these areas were designated as critical habitat, any actions with a 
Federal nexus which might adversely affect the critical habitat would 
require a consultation with us, as explained previously in Effects of 
Critical Habitat Designation section, and their PCEs would be protected 
from destruction or adverse modification using a conservation standard 
based on the Ninth Circuit Court's decision in Gifford Pinchot. This 
requirement would be in addition to the requirement that proposed 
Federal actions avoid likely jeopardy to the species' continued 
existence. Thus, a potential benefit of critical habitat would be the 
requirement of Federal agencies to ensure their actions do not result 
in the destruction or adverse modification of critical habitat pursuant 
to section 7(a)(2) of the Act. We believe that the affirmative 
management and protection afforded essential habitat of M. l. ssp. 
viminea under the approved MSCP subarea plans provides permanent 
conservation benefits to the species in excess of those likely to 
result through the regulatory requirement to avoid adverse modification 
of critical habitat under Section 7. Therefore the additional 
conservation benefit, if any, of designating critical habitat on lands 
covered by approved MSCP subarea plans, would be minimal.
    Another potential benefit of designation would be to signal the 
importance of these lands to the conservation of Monardella linoides 
ssp. viminea to Federal agencies and to the public. In Sierra Club v. 
Fish and Wildlife Service, 245 F.3d 434 (5th Cir. 2001), the Fifth 
Circuit Court of Appeals stated that the identification of habitat 
containing the features essential to the conservation of the species 
can provide informational benefits to the public, State and local 
governments, scientific organizations, and Federal agencies. The court 
also noted that heightened public awareness of the plight of listed 
species and their habitats may facilitate conservation efforts. The 
inclusion of an area as critical habitat may focus and contribute to 
conservation efforts by other parties by clearly delineating areas of 
high conservation values for certain species. However, we believe that 
this educational benefit has largely been achieved for M. l. ssp. 
viminea. The public outreach and environmental impact reviews required 
under the National Environmental Policy Act for the MSCP, City of San 
Diego Subarea Plan, and County of San Diego Subarea Plan provided 
significant opportunities for public education regarding the 
conservation of the areas occupied by M. l. ssp. viminea. Under the 
MSCP, annual public meetings are held to assess progress being made to 
implement the approved subarea plans and protect covered species and 
their habitats. These ongoing public outreach efforts ensure that 
members of the public will continue to be made aware of the importance 
of protecting the covered species and their habitats and will be 
provided with a continuing opportunity to comment on and contribute to 
the MSCP's conservation goals. There would be little additional 
informational benefit gained from including these lands as critical 
habitat because of the level of information that has been, and 
continues to be, made available to the public as part of the regional 
planning effort.
    In summary, we believe that designating any non-Federal lands 
within the City's and County's subarea plan as critical habitat would 
provide little additional regulatory or educational benefits for the 
species. These essential lands are already protected under the MSCP and 
are required to be conserved and managed for the benefit Monardella 
linoides ssp. viminea through implementation of the subarea plans. The 
additional educational benefits that might arise from critical habitat 
designation have been and continue to be accomplished through the 
public review and comment of the environmental impact documents which 
accompanied the development of the San Diego MSCP, periodic public 
meetings to assess the plans, and the recognition by the City of San 
Diego, County of San Diego, State of California, and Federal agencies 
of the presence of Monardella linoides ssp. viminea and the value of 
their lands for the conservation and recovery of the species that has 
already been provided through development and implementation of the 
MSCP.
(2) Benefits of Exclusion
    As mentioned above, the San Diego MSCP requires avoidance of 
impacts to Monardella linoides ssp. viminea both within and outside of 
existing and targeted reserve areas and provides for permanent 
conservation and active management of this species consistent with the 
framework and area-specific management plans (described above) and its 
habitat within the MHPA. Because the MSCP requires protection of the 
physical and biological features essential to the conservation of M. l. 
ssp. viminea and addresses the species' special management needs, we 
believe that designation of critical habitat would not provide an 
appreciable

[[Page 67976]]

benefit to the species beyond those achieved through the positive 
conservation measures in the plan.
    The benefits of excluding from critical habitat designation lands 
covered by approved MSCP subarea plans include relieving landowners, 
communities, the City and the County of any additional regulatory 
burden that might be imposed by a critical habitat designation 
consistent with the conservation standard based on the Ninth Circuit 
Court's decision in Gifford Pinchot. Many HCPs, particularly large 
regional HCPs such as the MSCP, take many years to develop and, upon 
completion, become regional conservation plans that essentially 
implement recovery objectives for listed covered species within the 
plan area. Additionally, many of these HCPs, including the MSCP, 
provide conservation benefits to unlisted, sensitive species. Imposing 
an additional regulatory review after an HCP is completed solely as a 
result of the designation of critical habitat may undermine 
conservation efforts and result in a loss of species' benefits if 
participants abandon the HCP process. This is particularly true with 
regard to plant species such as Monardella linoides ssp. viminea, and 
unlisted species, the coverage of which is completely voluntary under 
an HCP, because critical habitat designation may result in more 
regulatory requirements than those faced by other parties who have not 
participated in voluntary conservation efforts for these species.
    Another benefit of excluding these lands is to maintain the 
partnerships developed among the City of San Diego, County of San 
Diego, State of California, and the Service to implement the City of 
San Diego Subarea Plan and County of San Diego Subarea Plan. Instead of 
using limited funds to comply with administrative consultation and 
designation requirements which are unlikely to provide protection 
beyond what is currently in place, the partners could instead use their 
limited funds for the conservation of this species.
    A related benefit of excluding lands within HCPs from critical 
habitat designation is the unhindered, continued ability to seek new 
partnerships with future HCP 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. A primary objective of 
applicants developing multiple species regional HCPs is to streamline 
future regulatory requirements. If lands within HCP plan areas are 
designated as critical habitat and required to undergo subsequent 
Section 7 consultation based solely on critical habitat designation, it 
would likely have a negative effect on our ability to establish new 
partnerships to develop HCPs, particularly large, regional HCPs that 
involve numerous participants and address landscape-level conservation 
of species and habitats. By excluding these lands, we would preserve 
our current partnerships and encourage additional conservation actions 
in the future.
    Furthermore, an HCP or NCCP/HCP application must itself be 
consulted upon. While this consultation will not look specifically at 
the regulatory prohibition against adverse modification of critical 
habitat unless critical habitat has already been designated within the 
proposed plan area, the consultation will determine if the HCP is 
likely to jeopardize the species in the plan area. Since the objective 
of virtually all habitat conservation plans is to protect the covered 
species by conserving their essential habitat within the plan area, an 
important component of the Section 7 jeopardy review is an analysis of 
the effects of the covered activities on this essential habitat. In the 
biological opinions completed for the San Diego MSCP, the Service 
concluded that implementation of the plan is not likely to result in 
jeopardy to the species directly or through habitat loss. HCPs and 
NCCP/HCPs, including the MSCP, typically provide for greater 
conservation benefits to covered species than section 7 consultations 
because they include proactive long-term protection and management of 
covered species and their habitats, along with assured funding for such 
management through the standards found in the 5 Point Policy for HCPs 
(June 1, 2000; 64 FR 35242) and the HCP ``No Surprises'' regulation 
(February 23, 1998; 63 FR 8859). Such assurances are typically not 
provided by section 7 consultations that, in contrast to HCPs, often do 
not commit the project proponent to long-term special management or 
protections. Thus, a consultation typically does not accord the lands 
it covers the extensive benefits a HCP or NCCP/HCP provides. The 
development and implementation of HCPs or NCCP/HCPs provide other 
important conservation benefits, including the development of 
biological information to guide the conservation efforts and assist in 
species conservation, and the creation of innovative solutions to 
conserve species while allowing for development. In summary, the 
benefits of excluding lands covered by approved HCP and HCP/NCCPs 
generally, and the City and County approved MSCP subarea plans in 
particular, include the preservation of existing partnerships and 
conservation efforts and the cultivation of new partnerships in the 
future by eliminating largely duplicative regulatory requirements that 
can serve as a disincentive to development and implementation of these 
conservation plans. This benefit is particularly important with regard 
to Monardella linoides ssp. viminea, which as a listed plant species is 
not subject to the Act's section 9 prohibition against take. The 
affirmative conservation measures provided for this species under the 
MSCP are entirely voluntary.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We have reviewed the proposed exclusion from critical habitat of 
approximately 494 ac (200 ha) of non-Federal lands covered by approved 
subarea MSCP subarea plans and based on this review, we believe that 
the benefits of exclusing (avoidance of increased regulatory costs 
which could result from including those lands in this designation of 
critical habitat, maintaining existing conservation partnerships, 
encouraging new conservation partnerships, and directing limited 
funding to proactive conservation actions with partners) those lands 
containing features essential to the conservation of M. l. ssp. viminea 
outweigh the benefits of including (limited educational and regulatory 
benefits, which are largely duplicative of those provided for under the 
MSCP) the lands in our critical habitat designation. The benefits of 
inclusion of these 494 ac (200 ha) of non-Federal lands as critical 
habitat are small because of the significant level of conservation 
already provided to the M. l. ssp. viminea and its habitat under the 
San Diego MSCP (conservation of occupied and potential habitat). These 
minimal benefits are outweighed by the significant benefits of 
preserving our long term partnership with the City of San Diego, County 
of San Diego, and State of California and encouraging similar future 
conservation partnerships with others through the exclusion of these 
494 ac (200 ha) of non-Federal lands.
(4) Exclusion Will Not Result in Extinction of the Species
    Exclusion of these 494 ac (200 ha) of non-Federal lands would not 
result in extinction of Monardella linoides ssp. viminea because these 
lands will be permanently conserved and managed for the benefit of this 
species pursuant to the approved MSCP subarea plans.

[[Page 67977]]

    The jeopardy standard of section 7 and routine implementation of 
habitat conservation through the section 7 process also provide 
assurances that the species will not go extinct. The exclusion leaves 
these protections unchanged from those that would exist if these areas 
were designated as critical habitat.

Possible Exclusion of Critical Habitat Within the Bureau of Land 
Management Otay Mountain Wilderness Under Section 4(b)(2) of the Act

    Federal lands managed by the Bureau of Land Management (BLM) are an 
integral part of the conservation strategy of San Diego MSCP. However, 
BLM, like any other Federal agency, is not a permittee under the 
section 10(a)(1)(B) permit for the San Diego MSCP. The BLM, Service, 
CDFG, City of San Diego, and County of San Diego, in cooperation with 
the San Diego Association of Governments (SANDAG) signed a MOU in June 
1994 committing to cooperate in habitat conservation planning and 
management related to the San Diego MSCP. Under the MOU, BLM agreed to 
take the following actions to assist in implementing the MSCP's 
conservation goals and objectives: (1) To make maintenance and 
management of the area's unique biological diversity a principal goal 
in the design and implementation of its conservation programs; (2) to 
coordinate with the other signatory parties regarding assessment of the 
wildlife values of those lands managed by BLM within San Diego County; 
(3) to coordinate with signatory parties to resolve any BLM, State, 
regional and/or local land management prescriptions that are 
inconsistent with existing or proposed conservation objectives; (4) to 
work with the County, the City, SANDAG, CDFG, and Service in 
identifying the lands it manages for inclusion within the region's 
habitat conservation systems; and (5) to work with signatory parties to 
acquire key habitat areas using a variety of techniques. Thus, while 
not a permittee to the section 10(a)(1)(B) permit for the San Diego 
MSCP, BLM lands, in particular those on Otay Mountain that support a 
variety of listed and sensitive covered MSCP species, are a key 
component of the overall reserve design for the MSCP.
    At the time of the MOU, Monardella linoides ssp. viminea was not 
known to occur on BLM lands at Otay Mountain. Since the development and 
approval of the San Diego MSCP, new information has identified a 
previously unknown population of M. l. ssp. viminea on BLM lands at 
West Otay Mountain. Surveys in 2000 counted 202 clumps of M. l. ssp. 
viminea, making this occurrence the fourth largest population at that 
time. The populations of M. l. ssp. viminea on BLM lands at Otay 
Mountain are within the area covered by the MOU. Congress formally 
designated BLM lands on Otay Mountain as the Otay Mountain Wilderness 
in 1999 (Otay Mountain Wilderness Act, Pub. L. 106-145, December 9, 
1999). The occurrences of M. l. ssp. viminea on Otay Mountain are 
within the designated boundaries of the Otay Mountain Wilderness. The 
inclusion of these occupied habitats within a designated Wilderness 
provide additional significant protection for this area and complement 
BLM's objective to manage these public lands to provide protection and 
enhancement for biological values. The Wilderness Act of 1964 (16 
U.S.C. 1131 et seq.) restricts vehicles, new developments, chainsaws, 
mountain bikes, leasing, and mining from the wilderness area. Grazing 
is permitted within the wilderness area; however, no grazing allotments 
currently exist. Thus, the population of M. l. ssp. viminea on BLM land 
receives conservation protection consistent with the Otay Mountain 
Wilderness, MOU, and San Diego MSCP. We are therefore considering 
excluding from critical habitat Unit 9 for approximately 67 ac (27 ha) 
of Federal lands managed by the BLM within the designated Otay Mountain 
Wilderness and targeted for conservation under the MOU for the San 
Diego MSCP under section 4(b)(2) of the Act.
    The following figure shows the areas of BLM lands that we are 
considering excluding from critical habitat designation under section 
4(b)(2) of the Act:
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[[Page 67978]]

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[[Page 67979]]

(1) Benefits of Inclusion
    Overall, we believe that there is minimal benefit from designating 
critical habitat for Monardella linoides ssp. viminea on BLM lands 
because the habitat essential for this species on Otay Mountain is 
already conserved within the Otay Mountain Wilderness and is targeted 
for conservation under the MOU for the San Diego MSCP as explained 
above.
    The primary benefit of including an area within a critical habitat 
designation is the protection provided by section 7(a)(2) of the Act 
that directs Federal agencies to ensure that their actions do not 
result in the destruction or adverse modification of critical habitat. 
The designation of critical habitat may provide a different level of 
protection under section 7(a)(2) of the Act for M. l. ssp. viminea that 
is separate from the obligation of a Federal agency to ensure that 
their actions are not likely to jeopardize the continued existence of 
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 67 ac (27 ha) of Federal land in critical 
habitat designation is unlikely to provide any additional Federal 
regulatory benefits for the species consistent with the conservation 
standard based on the Ninth Circuit Court's decision in Gifford 
Pinchot. Inclusion of this area in critical habitat would require 
Federal agencies to ensure that their actions on these Federal lands 
are not likely 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 the extensive 
restrictions on permitted uses and the prohibition on development of 
designated wilderness lands virtually eliminates the possibility of 
future Federal actions likely to negatively impact essential habitat 
for Monardella linoides ssp. viminea within this area. Further, in 
contrast to section 7(a)(2) of the Act, the wilderness designation and 
MOU go well beyond a simple requirement to avoid adverse modification 
of critical habitat. BLM has demonstrated its proactive commitment to 
the conservation goals and objectives of the MSCP by entering into the 
1994 MOU and committing to manage its public lands for the benefit of 
M. l. ssp. viminea and other covered species.
    Another potential benefit of critical habitat would be to signal 
the importance of these lands to Federal agencies, scientific 
organizations, State and local governments, and the public to encourage 
conservation efforts to benefit M. l. ssp. viminea and its habitat. 
However, as discussed above, the importance of protecting the 
biological resource values of these lands, including M. l. ssp. 
viminea, has already been clearly and effectively communicated to 
Federal, State, and local agencies and other interested organizations 
and members of the public through designation of the lands as 
wilderness as well as through the 1994 MOU.
(2) Benefits of Exclusion
    As mentioned above, the Otay Mountain Wilderness designation 
provides significant levels of protection, and the MOU provides for the 
management and protection of Monardella linoides ssp. viminea on lands 
managed by the BLM consistent with the San Diego MSCP. Through these 
mechanisms, the physical and biological features essential for the 
conservation of M. l. ssp. viminea will be protected and managed. We 
believe that designation of critical habitat would not provide any 
meaningful additional benefit to the species and its habitat beyond 
those provided through Otay Mountain Wilderness designation and the 
1994 MSCP MOU.
    A benefit of excluding Federal lands within the Otay Mountain 
Wilderness and the MOU from critical habitat designation includes 
relieving Federal agencies of any unnecessary additional regulatory 
burden that might be imposed by a critical habitat designation. As 
noted above, this benefit is likely to be minimal since the wilderness 
designation prohibits virtually all development and use of these lands 
that might adversely modify designated critical habitat. The exclusion 
of these Federal lands as critical habitat does not remove the 
obligation of a Federal agency to ensure that their actions are not 
likely to jeopardize the continued existence of M. l. ssp. viminea or 
to comply with the Otay Mountain Wilderness Act.
    Another benefit from excluding these lands is to maintain the 
partnerships developed among BLM, Service, State of California, City of 
San Diego, and the County of San Diego to manage the Otay Mountain 
Wilderness and implement the San Diego MSCP. Instead of using limited 
funds to comply with administrative consultation and designation 
requirements that cannot provide protection beyond what is currently in 
place, the partners could instead use their limited funds for the 
conservation of this species. By excluding these lands, we would 
preserve our current partnerships.
(3) Benefits of Exclusion Outweigh the Benefits of Inclusion
    We believe that the benefits of exclusion (avoiding the costs in 
money and time of duplicative and unnecessary Section 7 consultations) 
of the lands containing features essential to the conservation of 
Monardella linoides ssp. viminea within the designated Otay Mountain 
Wilderness, although minimal, outweigh the even more minimal benefits 
of inclusion (potential educational and regulatory benefits that are 
already provided and exceeded under the Otay Mountain Wilderness Act 
and MOU) of these lands as critical habitat.
    Critical habitat designation is anticipated to provide little or no 
additional benefit to Monardella linoides ssp. viminea on BLM lands. 
The primary benefit of any critical habitat is that activities that 
require Federal funding, permitting, or authorization, and which may 
affect critical habitat, require consultation pursuant to section 7 of 
the Act to ensure the activity will not destroy or adversely modify 
designated critical habitat. This benefit is already present by virtue 
of the inclusion of the occupied habitat within the Otay Mountain 
Wilderness. The educational benefits of critical habitat, including 
informing the public of areas that are important to the conservation of 
listed species, are already in place as a result of the enactment of 
the Otay Mountain Wilderness legislation and the approval and ongoing 
implementation of the MSCP. For these reasons, we believe that the 
inclusion of critical habitat on BLM lands would provide virtually no 
benefit.
    After weighing the minimal benefits of including these lands as 
critical habitat against the slightly greater benefits derived from 
excluding these lands as critical habitat, we are considering excluding 
from critical habitat BLM lands within the Otay Mountain Wilderness 
pursuant to section 4(b)(2) of the Act.
    (4) Exclusion Will Not Result in Extinction of the Species
    The proposed exclusion of these 67 ac (27 ha) of Federal lands 
would not result in extinction of Monardella linoides ssp. viminea 
because these lands will be permanently protected for

[[Page 67980]]

the benefit of this species and its essential habitat pursuant to the 
Otay Mountain Wilderness Act and will be actively managed pursuant to 
the 1994 MOU. The protection of the Otay Mountain population of 
Monardella linoides ssp. viminea and its habitat, along with the 
conservation of the remaining populations and essential habitat of this 
species under the San Diego MSCP and MCAS Miramar INRMP, will ensure 
the species' continued existence.
    The jeopardy standard of section 7 and routine implementation of 
conservation measures through the section 7 process also provide 
assurances that the species will not go extinct. The exclusion under 
consideration leaves these protections unchanged from those that would 
exist if the subject areas were designated as critical habitat.
    We have not included legal descriptions or maps of the areas we are 
exempting (under section 4(a)(3) of the Act) or excluding (under 
section 4(b)(2) of the Act) in the rule portion of this document. As 
mentioned above, however, we are soliciting public comment on whether 
the exemption or possible exclusions are appropriate for the subject 
lands.

Economic Analysis

    An analysis of the economic impacts of the proposed critical 
habitat designation for Monardella linoides ssp. viminea will be 
prepared soon. 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://carlsbad.fws.gov, or by contacting the Carlsbad Fish and Wildlife 
Office directly (see ADDRESSES section).

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 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 (see 
DATES section). 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 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., Washington, DC 20240. You 
may e-mail your comments to this address: <a href="/cdn-cgi/l/email-protection#ffba878c9a9cbf96908cd19b9096d1989089"><span class="__cf_email__" data-cfemail="e8ad909b8d8ba881879bc68c8781c68f879e">[email protected]</span></a>.

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order (E.O.) 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 E.O. 
12866, Regulatory Flexibility Act, Small Business Regulatory 
Enforcement Fairness Act, and E.O. 12630.
    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 will be available from the 
Internet Web site at http://carlsbad.fws.gov or by contacting the CFWO 
directly (see ADDRESSES section).

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

    Our assessment of economic effect will be completed prior to final 
rulemaking based upon review of the draft economic analysis prepared 
pursuant to section 4(b)(2) of the Act and E.O. 12866. This analysis is 
for the purposes of compliance with the Regulatory Flexibility Act and 
does not reflect our position on the type of economic analysis required 
by New Mexico Cattle Growers Assn. v. U.S. Fish & Wildlife Service 248 
F.3d 1277 (10th Cir. 2001).
    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 (i.e., 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 is prepared pursuant to section 4(b)(2) of the 
Act and E.O. 12866. This

[[Page 67981]]

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 Executive Order (E.O.) 13211 
on regulations that significantly affect energy supply, distribution, 
and use. E. O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. This proposed rule to 
designate critical habitat for Monardella linoides ssp. viminea is not 
a significant regulatory action under E. O. 12866, and 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 will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, tribal 
governments, or the private sector and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; AFDC work 
programs; Child Nutrition; Food Stamps; Social Services Block Grants; 
Vocational Rehabilitation State Grants; Foster Care, Adoption 
Assistance, and Independent Living; Family Support Welfare Services; 
and Child Support Enforcement. ``Federal private sector mandate'' 
includes a regulation that ``would impose an enforceable duty upon the 
private sector, except (i) a condition of Federal assistance or (ii) a 
duty arising from participation in a voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While 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 will significantly or uniquely 
affect small governments because the proposed critical habitat is on 
private lands and Padre Dam Municipal Water District lands. As such, a 
Small Government Agency Plan is not required. We will, however, further 
evaluate this issue as we conduct our economic analysis and revise this 
assessment if appropriate.

Federalism

    In accordance with E.O. 13132, the rule does not have significant 
Federalism effects. A Federalism assessment is not required. In keeping 
with DOI policy, we requested information from, and coordinated 
development of, this proposed critical habitat designation with the 
State of California Resources Agency. The designation of critical 
habitat in areas currently occupied by Monardella linoides ssp. viminea 
imposes no additional restrictions to those currently in place and, 
therefore, has little incremental impact on State and local governments 
and their activities. The designation may have some benefit to these 
governments in that the areas that contain the features essential to 
the conservation of the species are more clearly defined, and the PCEs 
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 Endangered Species Act. This 
proposed rule uses standard property descriptions and identifies the 
PCEs within the designated areas to assist the public in understanding 
the habitat needs of Monardella linoides ssp. viminea.

Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.)

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act. This rule 
will not impose recordkeeping or reporting requirements on State or 
local governments, individuals, businesses, or organizations. An agency 
may not conduct or sponsor, and a person is not required to respond to, 
a collection of information unless it displays a currently valid OMB 
control number.

National Environmental Policy Act

    It is our position that, outside the Tenth Circuit, we do not need 
to prepare environmental analyses as defined by the NEPA in connection 
with designating critical habitat under the

[[Page 67982]]

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 containing 
the features essential for the conservation, and no Tribal lands that 
are unoccupied areas that are essential for the conservation of 
Monardella linoides ssp. viminea. Therefore, we are proposing no 
critical habitat for M. l. ssp. viminea is not being 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).

Author(s)

    The primary author of this package is the Carlsbad Fish and 
Wildlife Office.

List of Subjects in 50 CFR Part 17

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

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:

    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 ``Monardella linoides 
ssp. viminea'' 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
 
                                                                      * * * * * * *
Monardella linoides ssp. viminea.  willowy monardella..  U.S.A. (CA), Mexico  Lamiaceae (Mint      E                       629     17.96(a)           NA
                                                                               family).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

    3. In Sec.  17.96(a), add critical habitat for Monardella linoides 
ssp. viminea in alphabetical order under Family Lamiaceae to read as 
follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Lamiaceae: Monardella linoides ssp. viminea (willowy 
monardella)
    (1) Critical habitat unit is depicted for San Diego County, 
California, on the map below.
    (2) The primary constituent elements for Monardella linoides ssp. 
viminea are the habitat components that provide:
    (i) Coarse, rocky, sandy alluvium on terraced floodplains, benches, 
stabilized sandbars, channel banks, and sandy washes along and within 
the ephemeral drainages that provide space for growth, reproduction, 
and dispersal;
    (ii) Ephemeral drainages where water flows only after peak seasonal 
rains and major flooding events, periodically scours riparian 
vegetation, and redistributes alluvial material by eroding and 
developing stream channels, benches, and sandbars, thus maintaining 
necessary dynamic habitat processes for the species; and
    (iii) Coastal sage and riparian scrub with an open and semi-open 
canopy and little or no herbaceous understory situated along ephemeral 
drainages and adjacent floodplains to ensure that the subspecies 
receives adequate sunlight for nutrient uptake for photosynthesis.
    (3) Critical habitat does not include manmade structures existing 
on the effective date of this rule and not containing one or more of 
the primary constituent elements, such as buildings, aqueducts, 
airports, and roads, and the land on which such structures are located.
    (4) Data layers defining the map unit were created on a base of 
USGS 7.5' quadrangles, and the critical habitat unit was then mapped 
using a 100-meter grid to establish Universal Transverse Mercator (UTM) 
North American Datum 27 (NAD 27) coordinates which, when connected, 
provided the boundaries of the area defined by features essential to 
the conservation of Monardella linoides ssp. viminea.
    (5) Unit 1 for Monardella linoides ssp. viminea: Sycamore Canyon 
Unit, San Diego County, California. From USGS 1:24,000 quadrangle San 
Vicente Reservoir. Lands bounded by the following UTM NAD27 coordinates 
(E,N): 501900, 3640200; 501700, 3640200; 501700, 3640100; 501600, 
3640100; 501600, 3640000; 501800, 3640000; 501800, 3640100; thence east 
to the City of Santee boundary at y-coordinate 3640100; thence south 
and east following the City of Santee boundary to x-coordinate 502700; 
thence south following 502700, 3640000; 502400, 3640000; 502400, 
3639900; thence west to the City of Santee boundary at y-coordinate 
3639900; thence north along the City of Santee boundary to y-coordinate 
3640300; thence east to 501600, 3640300; thence north to the City of 
Santee boundary at x-coordinate 501600; thence west along the City of 
Santee boundary to x-coordinate 501900; returning to 501900, 3640200; 
and lands bounded by 501400, 3639800; 501200, 3639800; 501200, 3639700; 
thence west to the City of Santee boundary at y-coordinate 3639700; 
thence north along the City of Santee boundary to x-coordinate 501400; 
returning to 501400, 3639800; and beginning at 501000, 3639600; thence 
west to the City of Santee boundary at y-coordinate 3639600; thence 
northeast along the City of Santee boundary to x-

[[Page 67983]]

coordinate 501000; returning to 501000, 3639600; and lands bounded by 
500900, 3639100; 500800, 3639100; 500800, 3638800; 500700, 3638800; 
500700, 3638500; thence west to the City of Santee boundary at y-
coordinate 3638500; thence northeast along the City of Santee boundary 
to x-coordinate 500900; thence returning to 500900, 3639100.
BILLING CODE 4310-55-P

[[Page 67984]]

[GRAPHIC] [TIFF OMITTED] TP09NO05.010


[[Page 67985]]


* * * * *

    Dated: November 1, 2005.
Craig Manson,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 05-22190 Filed 11-8-05; 8:45 am]
BILLING CODE 4310-55-C


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