8412 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

DEPARTMENT OF THE INTERIOR 

Fish and Wildlife Service 

50 CFR Part 17 

[FWS–R8–ES–2008–0011; 92210–1117– 

0000–B4] 

RIN 1018–AU84 

Endangered and Threatened Wildlife 

and Plants; Designation of Critical 

Habitat for Berberis nevinii (Nevin’s 

barberry) 

AGENCY: Fish and Wildlife Service, 

Interior. 

ACTION: Final rule. 

SUMMARY: We, the U.S. Fish and 

Wildlife Service (Service), are 

designating critical habitat for Berberis 

nevinii (Nevin’s barberry) under the 

Endangered Species Act of 1973, as 

amended (Act). In total, approximately 

6 acres (ac) (3 hectares (ha)) in Riverside 

County, California, fall within the 

boundaries of the final critical habitat 

designation. 

DATES: This rule becomes effective on 

March 14, 2008. 

ADDRESSES: The final rule, final 

economic analysis, and map of critical 

habitat will be available on the Internet 

at http://www.regulations.gov and 

http://www.fws.gov/carlsbad/. 

Supporting documentation we used in 

preparing this final rule will be 

available for public inspection, by 

appointment, during normal business 

hours, at the U.S. Fish and Wildlife 

Service, Carlsbad Fish and Wildlife 

Office, 6010 Hidden Valley Road, 

Carlsbad, CA 92011; telephone 760– 

431–9440; facsimile 760–431–5901. 

FOR FURTHER INFORMATION CONTACT: Jim 

Bartel, Field Supervisor, U.S. Fish and 

Wildlife Service, Carlsbad Fish and 

Wildlife Office, telephone 760–431– 

9440 (see ADDRESSES section). If you use 

a telecommunications device for the 

deaf (TDD), call the Federal Information 

Relay Service (FIRS) at 800–877–8339. 

SUPPLEMENTARY INFORMATION: 

Background 

It is our intent to discuss only those 

topics directly relevant to the 

development and designation of critical 

habitat in this final rule. For additional 

information on the description, biology, 

and ecology of Berberis nevinii, refer to 

the final listing rule published in the 

Federal Register on October 13, 1998 

(63 FR 54956), and the proposed critical 

habitat rule published in the Federal 

Register on February 6, 2007 (72 FR 

5552). 

Species Description and Reproduction 

Berberis nevinii is a 3 to 13 foot (ft) 

(1 to 4 meter (m)) tall rhizomatous, 

evergreen shrub in the barberry family 

(Berberidaceae) that is endemic to 

southern California. In both the 

proposed critical habitat rule (72 FR 

5552; February 6, 2007) and the final 

listing rule (63 FR 54956; October 13, 

1998) for the species, we reported 

Berberis nevinii to be rhizomatous. 

Some members of the genus Berberis 

have underground stems (rhizomes) that 

give rise to aerial shoots. Some species 

have long slender-branched rhizomes 

while others, including B. nevinii, have 

short stout-branched rhizomes. Because 

aerial stems commonly arise in this 

manner, a single genetic individual may 

appear to be a dense or diffuse grouping 

of aerial stems of different age classes. 

As mentioned in the Primary 

Constituent Elements section of the 

proposed critical habitat rule, B. nevinii 

is not known to reproduce by vegetative 

means through the process of separation 

of rhizomes between groupings of aerial 

stems, as is the case with some other 

members of the genus Berberis 

(Mistretta and Brown 1989, p. 5; Boyd 

2006, p. 1). According to White (2007, 

p. 1), the now-extirpated B. nevinii 

occurrence in San Timoteo Canyon was 

likely resprouting from a large basal 

burl, similar to what is seen in other 

chaparral shrub species. Generally, the 

term burl is reserved for those more 

condensed rounded woody structures 

that produce aerial stems (e.g., some 

Arctostaphylos (Manzanita) species) 

when plants are older or existing stems 

have sustained damage. Various authors 

have used either of these terms (burl or 

rounded woody structures) to refer to 

the underground portions of B. nevinii. 

We will continue to consider the basal 

structures that routinely produce new 

aerial stems as woody rhizomes. For a 

detailed description of B. nevinii, please 

refer to the proposed critical habitat 

designation published in the Federal 

Register on February 6, 2007 (72 FR 

5552) and the final listing rule 

published in the Federal Register on 

October 13, 1998 (63 FR 54956). 

In the proposed critical habitat rule 

(72 FR 5552; February 6, 2007), we 

discussed the relationship between 

Berberis nevinii’s life history and 

wildfire in southern California chaparral 

(72 FR 5556, 5560). Aerial stems of B. 

nevinii resprout following fire (Soza and 

Fraga 2003, p. 2; Mistretta and Brown 

1989, p. 5; USFS 2005, p. 237). Because 

B. nevinii fruits appear to be adapted for 

dispersal by animals (most likely birds), 

the accumulation of a seed bank seems 

unlikely (White 2007, p. 1). Seed 

germination rates, even without special 

treatment, are high (Mistretta and 

Brown 1989, p. 5). These life history 

features appear to match Keeley’s (1991, 

p. 107) description of the ‘‘nonrefractory seed’’ (fire-resister) syndrome 

(White 2007, p. 1). Shrubs with this life 

history strategy have seeds that do not 

require fire-associated cues for 

germination and generally recruit into 

chaparral in the absence of fire, 

potentially requiring long fire-free 

periods to do so (White 2007, p. 1). This 

appears to contradict California 

Department of Fish and Game’s (CDFG) 

characterization of B. nevinii as a fire 

responsive species (CDFG 2005, p. 272). 

The specific response of B. nevinii to 

changes in the natural fire regime (fire 

frequency, intensity, or timing) may not 

be fully understood (63 FR 54964, 

54965). Fires that follow abnormally 

long fire-free periods likely have more 

severe impacts to the native occurrences 

because of accumulation of standing 

and downed fuel loads that may cause 

the fire to be more destructive and burn 

at higher temperatures. However, it is 

also likely that too-frequent fire could 

pose a threat to this species by killing 

mature, seeding adults and resprouting 

individuals prior to seed set or recovery 

from earlier fires, as well as young 

plants before they have reached 

reproductive age. Furthermore, toofrequent fire can lead to the conversion 

of native shrublands to weedy annual 

grasslands (D’Antonio and Vitousek 

1992, pp. 74–75; White 2007, p. 1). 

Species Distribution 

In general, Berberis nevinii has a 

limited natural distribution; it typically 

occurs in small stands (less than 20 

individuals, and often only one or two) 

in scattered locations in Los Angeles, 

San Bernardino, and Riverside Counties, 

California, with the largest native 

occurrence (as defined by the California 

Natural Diversity Database (CNDDB)) 

consisting of several stands and totaling 

about 134 individuals to the south of 

Vail Lake in Riverside County (Boyd 

1987; CNDDB 2007). B. nevinii typically 

occurs at elevations from 900 to 2,000 

ft (300 to 650 m) (63 FR 54956), but 

most native occurrences are between 

1,400 and 1,700 ft (427 to 518 m) in 

elevation (Boyd 1987, p. 2; CNDDB 

2007). For a detailed discussion and 

summary of the distribution of B. 

nevinii, please refer to the proposed 

critical habitat designation published in 

the Federal Register on February 6, 

2007 (72 FR 5552, please refer to pages 

5554–5556). 

In the proposed critical habitat rule 

(72 FR 5552; February 6, 2007), we 

inadvertently failed to mention an 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8413 

occurrence of Berberis nevinii in 

Riverside, California, that was known at 

the time of listing but is not recorded in 

the CNDDB (CNDDB 2007). This 

occurrence consists of a single plant 

growing in a granite crevice on a low 

hill and is suspected to be of cultivated 

origin due to its isolation from known 

wild occurrences of B. nevinii (White 

2001, p. 36). As stated in the proposed 

rule, we do not believe that single plant 

occurrences, which do not exhibit any 

evidence of reproduction, are likely to 

contribute to recovery of this species 

and, therefore, are not essential to the 

conservation of this species. 

Furthermore, the conservation role of 

introduced populations is unknown. We 

did not propose to include any 

occurrences suspected to be of 

cultivated origin or any occurrences that 

supported a single plant. However, we 

will continue to explore the potential 

conservation value of naturalized 

occurrences and consider these 

occurrences in future recovery actions 

as appropriate. 

As stated in the proposed rule (72 FR 

5552; February 6, 2007), potential 

habitat within the species’ range has 

been extensively botanically explored or 

surveyed (Boyd 1987, p. 3), including 

potential habitat on the San Bernardino 

National Forest (SBNF) in 1988 and 

1989, which yielded no new 

occurrences (Mistretta 1989, 

unpaginated; 72 FR 5555). Since 

publication of the proposed rule, we 

were informed by the Cleveland 

National Forest (CNF) that surveys of 

potential habitat on the SBNF have been 

conducted since 1989, also with 

negative results. Recent discoveries of 

native occurrences of Berberis nevinii 

have been limited to individual plants 

or small stands (Boyd 1987, p. 3; Boyd 

and Banks 1995, unpaginated; Soza and 

Boyd 2000, p. 4), and additional survey 

efforts are unlikely to identify new large 

occurrences of this species. 

Suitable Berberis nevinii habitat may 

occur in Los Angeles and San 

Bernardino counties on or adjacent to 

the Angeles National Forest (ANF) in 

the Liebre Mountains and on the south 

slope of the San Gabriel Mountains 

(Soza and Boyd 2000, p. 4). Specifically 

in the San Gabriel Mountains, suitable 

habitat may occur in the foothills, from 

Pacoima Canyon and Lopez Canyon, 

both adjacent to the San Fernando 

Valley, and in canyons in the vicinity of 

San Antonio Wash near Claremont 

(Soza 2003, based on expertise of Boyd, 

Rancho Santa Ana Botanic Garden). In 

San Bernardino County, there is 

potential for suitable habitat in the 

Crafton Hills area near Redlands off of 

National Forest lands and in Cajon 

Canyon (erroneously stated to be in the 

ANF in the proposed rule) on SBNF 

lands. In Riverside County, there is 

potential for suitable habitat: 

(1) On the west side of the San Jacinto 

Mountains in the vicinity of Bautista 

Canyon (Soza 2003, unpaginated; 

Holtrop 2007, p. 1), although surveys in 

these areas have failed to locate any 

plants to date (Holtrop 2007, p. 1); 

(2) In the area between Kolb Creek 

and Temecula Creek, south and east of 

Vail Lake (e.g., Temecula Creek 

drainage, the hills between Temecula 

Creek and Wilson Creek); 

(3) In the canyons draining Big Oak 

Mountain north of Vail Lake (Boyd et al. 

1989, p. 16; Soza 2003, unpaginated); 

and 

(4) On the northern edge of the Agua 

Tibia Wilderness in the CNF straddling 

Riverside and San Diego counties (Boyd 

and Banks 1995, unpaginated; Reiser 

2001, unpaginated; Soza 2003, 

unpaginated). 

Previous Federal Actions 

As discussed in the proposed rule (72 

FR 5552; February 6, 2007), the Service 

agreed, as part of a settlement 

agreement, to submit to the Federal 

Register a proposed rule to designate 

critical habitat, if prudent, on or before 

January 30, 2007, and a final rule by 

January 30, 2008 (72 FR 5556, 5557). We 

also published a notice of availability 

(NOA) of the draft economic analysis 

(DEA) of the 2007 proposed rule in the 

Federal Register on October 17, 2007 

(72 FR 58793). In this notice, we 

announced revisions to proposed 

critical habitat subunits 1B, 1D, and 1E. 

We revised these subunits based on 

information received during the first 

comment period, as well as data 

obtained during the development of the 

DEA (see Summary of Changes from 

Proposed Rule section below for a 

detailed discussion). This final rule 

satisfies the December 21, 2004, 

settlement agreement with respect to 

Berberis nevinii. For a discussion of 

additional previous Federal actions 

involving this species, please refer to 

the listing rule (63 FR 54956; October 

13, 1998) or the proposed critical habitat 

rule (72 FR 5552; February 6, 2007). 

Summary of Comments and 

Recommendations 

We requested comments from the 

public on the proposed designation of 

critical habitat for Berberis nevinii 

during two comment periods. The first 

comment period opened on February 6, 

2007, the date of publication of the 

proposed rule (72 FR 5552), and closed 

on April 9, 2007. We did not receive any 

requests for a public hearing during this 

comment period. We also requested 

comments on the proposed rule and 

DEA during a comment period that 

opened on October 17, 2007 and closed 

on November 16, 2007 (72 FR 58793). 

We contacted appropriate Federal, State, 

and local agencies; scientific 

organizations; and other interested 

parties and invited them to comment on 

the proposed rule and DEA during these 

two comment periods. 

During the first comment period, we 

received five comments directly 

addressing the proposed critical habitat 

designation: one from a peer reviewer, 

one from a Federal agency, one from a 

local agency, and two from 

organizations or individuals. During the 

second comment period, we received no 

comment letters on the proposed critical 

habitat designation or DEA. We 

reviewed all comments received during 

both comment periods for substantive 

issues and new information regarding 

the designation of critical habitat for 

Berberis nevinii, addressed them in the 

following summary, and incorporated 

them into the final rule as appropriate. 

Peer Review 

In accordance with our policy 

published on July 1, 1994 (59 FR 

34270), we solicited expert opinions 

from four knowledgeable individuals 

with scientific expertise that included 

familiarity with the species, the 

geographic region in which the species 

occurs, and conservation biology 

principles. We received a response from 

one of the four peer reviewers from 

which we requested comments. 

Peer Reviewer Comments 

(1) Comment: After review of personal 

files, the peer reviewer concurred with 

our description of the occurrences of 

Berberis nevinii described in the 

proposed rule and was not aware of any 

occurrences outside of the areas 

described in the proposed rule. 

However, the reviewer recommended 

that the Service review the most current 

CNDDB and Consortium of California 

Herbaria records to identify any 

additional occurrences of B. nevinii 

before publishing the final rule. 

Our Response: For the proposed rule, 

we based our understanding of the 

current distribution of Berberis nevinii 

on the most current occurrence records 

in the CNDDB (2006), and utilized the 

Consortium of California Herbaria 

records for information on specific 

occurrences. Since publication of the 

proposed rule, we conducted another 

search of the CNDDB database and 

Consortium records. No new occurrence 

records were found from either source. 

Two separate occurrences, likely 


pwalker on PROD1PC71 with RULES2
8414 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

introduced, were found in Griffith Park 

in the Hollywood Hills of Los Angeles 

County. One was documented with a 

herbarium specimen (Consortium of 

California Herbaria, Berberis nevinii, 

Soza et al. 1060, RSA 679741). Based on 

our review of these information sources 

and the fact that the only additional 

occurrence information received during 

the first comment period from this peer 

reviewer was in reference to a single, 

isolated individual likely of cultivated 

origin, we believe that we based the 

proposed and this final designation on 

the best available information. 

(2) Comment: The peer reviewer 

commented that he was unable to 

critically review the proposed exclusion 

of critical habitat covered under the 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP), but suggested that the Service 

review his extensive peer review 

comments provided on November 3, 

2004, on the proposed exclusion of 

critical habitat for Atriplex coronata var. 

notatior (San Jacinto Valley crownscale) 

(69 FR 59844; October 6, 2004) covered 

under the MSHCP. 

Our Response: The content and scope 

of the reviewer’s comments provided on 

November 4, 2004, related to the 

Western Riverside County MSHCP also 

are considered applicable to the 

proposed critical habitat designation for 

Berberis nevinii. Per the reviewer’s 

recommendation, we addressed the 

specified remarks incorporated by 

reference in the submitted peer review 

regarding the exclusion of critical 

habitat for Atriplex coronata var. 

notatior covered under the MSHCP. 

These comments included assertions 

that: (1) It is important to include a 

clear, detailed explanation of the 

MSHCP, its associated Implementing 

Agreement, the Service’s formal section 

7 consultation for the MSHCP, and the 

Service’s responsibilities and authority 

under the MSHCP as they relate to 

covered species in the final rule; (2) the 

Service failed to provide an adequate 

basis for the exclusion of lands from the 

critical habitat designation and that our 

decision to do so based on the MSHCP’s 

ability to protect the taxon’s habitat was 

not adequately supported; and (3) the 

rule should include further explanation 

of how the designation of critical habitat 

for B. nevinii may impede cooperative 

conservation efforts, such as those 

implemented by the MSHCP. 

In response to the peer reviewer’s 

concerns regarding the MSHCP and its 

associated documents, we have added 

information to our discussion of the 

exclusion of areas occupied by Berberis 

nevinii covered by the Western 

Riverside County MSHCP in this final 

rule, including a detailed explanation of 

the MSHCP and its ability to protect the 

taxon’s habitat and the Service’s 

responsibilities and authority under the 

MSHCP as they relate to covered species 

(see Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

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

Act section below). Also, since the 

October 6, 2004, proposed critical 

habitat designation for Atriplex 

coronata var. notatior (69 FR 59844), we 

have revised our discussion of the 

benefits of including lands in critical 

habitat (see Benefits of Designating 

Critical Habitat section below) to 

include a discussion of how designation 

of critical habitat may impede 

cooperative conservation efforts (see 

Conservation Partnerships on NonFederal Lands section below for a 

detailed discussion). 

(3) Comment: The peer reviewer 

noted that the map of proposed critical 

habitat in the proposed rule did not 

indicate which lands were proposed for 

exclusion and did not indicate land 

ownership, and suggested including this 

information on the map in the final rule. 

Our Response: While we did not 

include a map in the proposed rule 

identifying the location of areas that 

were proposed for exclusion, a map 

containing such information was 

available on our Web site (http:// 

www.fws.gov/carlsbad) during both 

public comment periods. We appreciate 

the peer reviewer’s suggestion, and will 

consider including maps identifying 

areas proposed for exclusion in future 

proposed critical habitat rules. It is our 

practice to only publish maps of 

designated critical habitat in final rules. 

(4) Comment: The peer reviewer 

commented that the proposed rule 

incorrectly identifies the location of 

CNDDB Element Occurrence 10 as ‘‘Big 

Tejunga Wash’’ instead of ‘‘Big Tujunga 

Wash.’’

Our Response: We appreciate the 

correction to the misspelling of this 

location in the proposed rule. We made 

the correction in the October 17, 2007, 

notice of availability for the DEA (72 FR 

58793) (please see the Public Comments 

Solicited section of that notice). 

(5) Comment: The peer reviewer 

provided additional information and 

clarification on Berberis nevinii life 

history, including reproductive strategy 

(resprouting, seed banks, seedling 

recruitment) and its response to wildfire 

and overly frequent fire. The reviewer 

further commented that B. nevinii is 

probably not rhizomatous, as described 

in the final listing rule and the proposed 

critical habitat rule, and that the 

reported vegetative reproduction in San 

Timoteo Canyon is probably from 

resprouting from a large basal burl, as is 

often seen in other chaparral shrubs. 

The reviewer also provided the Service 

with updated information on B. nevinii 

in the form of a species account 

(prepared by the reviewer and dated 

March 2001) for the Bureau of Land 

Management’s (BLM) planned section 7 

consultation with the Service on its 

revision of the South Coast Resource 

Management Plan. 

Our Response: We appreciate the 

additional information and 

clarifications on Berberis nevinii’s life 

history, status and distribution, and 

response to wildfire. We have included 

this information in this final rule (please 

see Background and Primary 

Constituent Elements sections). The 

Service considers the reviewer’s use of 

the term ‘‘burl’’ inappropriate in 

describing the short rhizomatous 

structures found in B. nevinii. However, 

the Service concedes that often both 

these terms have been used to describe 

this species. The short-branched woody 

rhizomes that almost always annually 

give rise to new aerial stems in this 

species are unlike the essentially 

unbranched rounded burls commonly 

associated with Arctostaphylos 

(Manzanita) and other chaparral taxa. 

Burls normally produce new aerial 

stems from among the myriad of 

dormant surface buds only when the 

existing stems are damaged or of 

considerable age. 

Public Comments 

Comments Related to the Western 

Riverside County MSHCP 

(6) Comment: One commenter stated 

strong support for the designation of 

critical habitat for Berberis nevinii, but 

expressed concern about the proposed 

exclusion of over 92 percent of occupied 

habitat under the Western Riverside 

County MSHCP, including the area with 

the largest known occurrence of the 

species. The commenter questioned the 

ability of the ‘‘untested’’ Western 

Riverside County MSHCP to prevent 

extinction of this species or provide for 

its conservation and recovery due to: (1) 

Uncertain funding mechanisms; (2) 

understaffing in agencies involved with 

implementing the plan; (3) the 

complexity of the plan; and (4) the 

intense development pressure within 

the area covered by the plan. The 

commenter stated that designating 

critical habitat in this area would 

provide a safety net to protect this 

endangered plant based on the 

consultation requirements under section 

7 of the Act. Another commenter 

expressed concern that the exclusion of 

lands within the boundaries of the 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8415 

MSHCP would not leave enough land 

within the critical habitat designation 

for B. nevinii to thrive. 

Our Response: As discussed in the 

proposed rule and in this final rule, we 

have determined that the physical and 

biological features essential to the 

conservation of Berberis nevinii will be 

adequately protected by the Western 

Riverside County MSHCP and that the 

exclusion of lands covered by this 

regional plan will not jeopardize the 

continued existence of the species. The 

conservation objectives in the MSHCP 

for B. nevinii include: (1) Conservation 

and management of at least 8,000 ac 

(3,238 ha) of suitable habitat, including 

all known locations for this species in 

the Vail Lake area; (2) implementation 

of specific management and monitoring 

practices to help ensure the 

conservation of B. nevinii in the MSHCP 

Conservation Area; (3) maintenance of 

the physical and ecological 

characteristics of occupied habitat; and 

(4) surveys and other required 

procedures to ensure avoidance of 

impacts to at least 90 percent of suitable 

habitat determined important to the 

long-term conservation of B. nevinii (see 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

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

Act section for a detailed discussion of 

the MSHCP). The conservation and 

management of B. nevinii habitat as 

described in the Western Riverside 

County MSHCP will remove or reduce 

known threats to B. nevinii and its 

habitat, providing for the survival and 

recovery of this species. 

We consider the regulatory (or 

consultation) benefit of critical habitat 

on these private lands to be low, as 

these lands may not have a Federal 

nexus under which to initiate 

consultation. Furthermore, any 

measures taken on private lands to 

minimize effects to a plant species or its 

habitat are completely voluntary. Under 

the Implementing Agreement of the 

Western Riverside County MSHCP, 

mandatory conservation measures 

provide for conservation of B. nevinii 

and its habitat. The MSHCP addresses 

conservation from a coordinated, 

integrated perspective rather than a 

piecemeal, project-by-project approach 

as would be achieved through multiple 

site-by-site, section 7 consultations 

involving critical habitat. Therefore, the 

Western Riverside County MSHCP 

provides a conservation benefit to B. 

nevinii and the physical and biological 

features essential to its conservation 

above the regulatory requirements 

associated with the designation of 

critical habitat. 

The exclusion of critical habitat does 

not dismiss or lessen the value of the 

Vail Lake and Oak Mountain areas to 

the overall conservation of this species. 

Rather, we believe that the judicious 

exclusion of specific areas of nonFederal lands from critical habitat 

designations, where we have developed 

close partnerships with non-Federal 

land owners that have resulted in the 

development of HCPs or other voluntary 

conservation plans, can contribute to 

species recovery and provide a superior 

level of conservation than the 

designation of critical habitat alone. As 

described in detail in the Relationship 

of Critical Habitat to Habitat 

Conservation Plan Lands—Exclusions 

Under Section 4(b)(2) of the Act section 

below, we have determined that the 

benefits of excluding areas within the 

Western Riverside County MSHCP 

(Subunits 1C, 1D, 1E, and 1F) outweigh 

the benefits of designating these lands, 

and that this exclusion will not result in 

the extinction of B. nevinii. 

Furthermore, we expect that this species 

will be conserved and recovered on 

MSHCP lands and do not believe that 

the plant will become restricted solely 

to designated lands as suggested by one 

commenter. 

(7) Comment: One commenter 

supported the proposed exclusion of 

private lands within the boundaries of 

the Western Riverside County MSHCP 

plan area from the designation of final 

critical habitat because the MSHCP 

adequately provides for the survival and 

recovery of the species. However, this 

commenter expressed concern about 

language in the proposed rule that states 

that this area will be included in the 

final designation of critical habitat if the 

Secretary determines that the benefits of 

including these lands outweigh the 

benefits of excluding them. They further 

stated that under the provisions of the 

MSHCP and the associated 

Implementing Agreement, no critical 

habitat for Berberis nevinii should be 

designated in the MSHCP plan area. 

Our Response: We have determined 

that private lands within the boundaries 

of the Western Riverside County 

MSHCP contain the physical and 

biological features essential to the 

conservation of Berberis nevinii, and 

meet the definition of critical habitat 

(see Criteria Used to Identify Critical 

Habitat section below). However, we 

have also determined that the benefits of 

excluding these private lands covered 

by the Western Riverside County 

MSHCP outweigh the benefits of 

designating critical habitat in these 

areas, and that this exclusion will not 

result in the extinction of B. nevinii; 

therefore, we have excluded all private 

lands from this final designation (see 

Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

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

Act section below for a detailed 

discussion). In the proposed rule, we 

provided an analysis of the proposed 

exclusion to allow the public to 

comment and provide additional 

information to be considered in our 

final exclusion analysis. We have 

considered all information provided 

during both comment periods in 

finalizing this exclusion. 

Comments Related to Criteria Used To 

Identify Critical Habitat 

(8) Comment: We received a comment 

that critical habitat should at a 

minimum include all known remaining 

occurrences of the species, including 

those with a low number of individuals 

(less than two) or low reproductive 

activity. 

Our Response: The Act defines 

critical habitat as the specific areas 

within the geographical area occupied 

by the species at the time it is listed 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, and 

specific areas outside the geographical 

area occupied by the species at the time 

it is listed upon a determination by the 

Secretary that such areas are essential 

for the conservation of the species. We 

believe that our proposed and final 

designations accurately describe all 

specific areas meeting the definition of 

critical habitat for Berberis nevinii. 

As discussed in the Criteria Used to 

Identify Critical Habitat section of the 

proposed rule and this final rule, we 

delineated proposed critical habitat for 

Berberis nevinii using the following 

criteria: (1) Areas occupied by naturally 

occurring individuals at the time of 

listing and areas that are currently 

occupied by naturally occurring 

individuals; (2) occupied areas within 

the historical range of the species; (3) 

areas containing one or more of the 

primary constituent elements (PCEs) for 

this species; and (4) areas currently 

occupied by more than two B. nevinii 

plants that show evidence of 

reproduction (i.e., fruits with seed, 

seedlings, or plants of various size/age 

classes) on site. Application of these 

criteria captures the physical and 

biological features that are essential to 

the conservation of this species, 

identified as the species’ PCEs laid out 

in the appropriate quantity and spatial 

arrangement. Thus, not all areas 

supporting the identified PCEs will 

meet the definition of critical habitat. 


pwalker on PROD1PC71 with RULES2
8416 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

We recognize that our designation of 

critical habitat for Berberis nevinii does 

not encompass all known occurrences of 

this species as noted by the commenter. 

As discussed in the proposed rule, for 

sites where no information is available 

on reproduction or size/age class 

distribution, we assumed that 

reproduction had occurred at some 

point in the past if multiple B. nevinii 

plants were present. We also gave 

consideration to the ecological 

uniqueness of sites. Sites meeting these 

criteria were included in the proposed 

designation. 

We did not include sites with only 

one individual or sites with only two 

individuals of the same size/age class 

because this condition may reflect a lack 

of successful reproduction and therefore 

the long-term viability of these 

occurrences is questionable. As 

discussed in the proposed critical 

habitat rule, many Berberis nevinii 

occurrences consist of very few 

individuals, and sometimes consist of 

only one or two large (presumably old) 

shrubs that have persisted on a site for 

many decades without evidence of 

reproducing. Because of the lack of 

evidence of reproduction for these small 

occurrences, and the low reproductive 

output of mature plants and limited 

numbers of surviving juvenile plants in 

general, we do not consider sites with 

only one plant or two plants of the same 

size/age class to represent an occurrence 

that exhibits a measurable degree of 

reproductive success that is likely to 

contribute to the recovery of the species. 

As explained in the Primary 

Constituent Elements section of this 

final rule, a self-incompatible 

pollination system has been suggested 

(White 2001, p. 36). Additionally, 

Berberis nevinii does not appear to 

reproduce by vegetative means 

(Mistretta and Brown 1989, p. 5; Boyd 

2006), as is the case with some other 

members of the genus Berberis. 

Therefore, pollen transfers from plants 

in different occurrences are likely 

necessary for reproduction to occur in 

sites supporting only one plant or two 

plants of the same size/age class. The 

habitat requirements and home ranges 

of potential pollinator species relative to 

native Berberis occurrences have not 

been determined; however, the lack of 

evidence of reproduction in these small 

B. nevinii occurrences suggests that 

pollination may not be occurring or 

another biological constraint is 

impacting the occurrences. The fact that 

reproduction has not been in evidence 

at these sites in several decades, if at all, 

suggests that they may not be viable 

occurrences over the long term. Whether 

or not these occurrences may contribute 

to recovery of the species is unknown at 

this time. We will continue to explore 

the potential conservation value of these 

small occurrences, and consider these 

occurrences in future recovery actions 

as appropriate. 

Additionally, we only considered 

areas occupied by naturally occurring 

individuals because we do not know the 

role that other occurrences (i.e., plants 

of cultivated origin or outplanted 

individuals originating from another 

part of the species’ range that have 

subsequently naturalized to a new site) 

will play in the conservation of the 

species. Only about half of the known 

Berberis nevinii individuals found in 

the field are thought to be naturally 

occurring (CNDDB 2007; 63 FR 54958), 

with the vast majority of these in the 

vicinity of Vail Lake and Oak Mountain. 

As discussed in the proposed rule, B. 

nevinii is available in the nursery trade 

and has been planted at numerous sites 

throughout the species’ range (Boyd 

1987, p. 2; Boyd and Banks 1995, 

unpaginated; Reiser 2001, unpaginated). 

We recognize that naturalized 

occurrences represent some of the 

largest (in terms of number of 

individuals) and most vigorously 

reproducing occurrences of the species, 

and could potentially play a role in 

preserving genetic diversity in B. 

nevinii. At least one naturalized 

occurrence (San Francisquito Canyon) 

may contain an individual or 

descendants of an individual that 

originated from a location where B. 

nevinii no longer occurs (i.e., the San 

Fernando Valley). Thus, we will 

continue to explore the potential 

conservation value of naturalized 

occurrences, and consider these 

occurrences in future recovery actions 

as appropriate. 

Although we are not designating all 

known occurrences of Berberis nevinii, 

we believe that our criteria, and 

therefore the designation, are adequate 

to ensure the conservation of this 

species throughout its extant range 

based on the best available information 

at this time. 

(9) Comment: One commenter stated 

that the proposed designation is flawed 

because it does not include unoccupied 

habitat for recovery, and that without 

including some suitable, but 

unoccupied, habitat (areas with one or 

more of the PCEs) in the critical habitat 

designation to allow Berberis nevinii to 

expand its range and promote recovery 

of the species, the Service will not be 

able to meet the Act’s recovery goals 

and mandate. 

Our Response: We have identified 

areas within the geographical range of 

the species that were occupied at the 

time of listing, contain the physical and 

biological features essential to the 

conservation of the species, and may 

require special management 

considerations or protection. As 

described in the Background section, 

potential habitat within this species’

range has been extensively botanically 

explored or surveyed (Boyd 1987, p. 3). 

Surveys throughout the SBNF and the 

CNF have not identified any new 

occurrences of this species. All recent 

discoveries of Berberis nevinii have 

been limited to individual plants or 

small stands (Boyd 1987, p. 3; Boyd and 

Banks 1995, unpaginated; Soza and 

Boyd 2000, p. 4) and additional survey 

efforts are unlikely to identify new large 

occurrences of this species. The longterm viability of single plant 

occurrences or small stands where there 

is no evidence of reproduction for many 

decades is questionable, and we do not 

believe that these areas will 

significantly contribute to the long-term 

recovery of this species. Furthermore, 

we do not have specific data concerning 

the habitat requirements or reproductive 

biology of this species to accurately 

predict any unoccupied areas where 

reintroduction would likely be 

successful. We designate critical habitat 

in areas outside the geographical area 

presently occupied by the species only 

when a designation limited to its 

present range would be inadequate to 

ensure the conservation of the species 

(50 CFR 424.12(e)). Accordingly, when 

the best scientific and commercial data 

do not demonstrate that the 

conservation needs of the species 

require designation of critical habitat 

outside of occupied areas, we will not 

designate critical habitat in areas 

outside the geographical area occupied 

by the species. Therefore, consistent 

with the Act and its implementing 

regulations, we are not designating any 

lands outside the area currently 

occupied by the species. We recognize 

that the designation of critical habitat 

may not include all of the habitat that 

may eventually be determined to be 

necessary for the recovery of the species 

and critical habitat designations do not 

signal that habitat outside the 

designation is unimportant or may not 

contribute to recovery. 

Comments Related to Federal Lands 

(10) Comment: The CNF commented 

that there is one population of Berberis 

nevinii containing six individuals on 

approximately 7 ac (2.8 ha) of land on 

the CNF. They further stated that the 

proposed critical habitat area mapped 

by the Service on the CNF (Subunit 1B) 

was 17 ac (6.8 ha), but according to CNF 

survey maps, these six individuals were 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8417 

outside the critical habitat map for 

Subunit 1B as described and mapped in 

the February 6, 2007, proposed rule (72 

FR 5552, pp. 5577, 5579). 

Our Response: We appreciate the 

correction and have since received 

updated locality data from the CNF for 

the Berberis nevinii occurrence on CNF 

lands. We verified that Subunit 1B as 

described and mapped in the February 

6, 2007, proposed rule (72 FR 5552, pp. 

5577, 5579) was inaccurate, and revised 

the boundaries of this subunit based on 

the new occurrence information 

provided by CNF. A revised description 

of Subunit 1B was published on October 

17, 2007, concurrently with the notice 

of availability for the DEA (72 FR 

58793). Based on follow-up 

communication with a CNF botanist 

(Young 2007) and a June 6, 2006, site 

visit by Service biologists (Wallace 

2006a), we believe that there are only 

five individuals, not six, at this site. To 

the best of our knowledge, the final rule 

correctly describes the B. nevinii 

occurrence on the CNF. 

(11) Comment: The CNF provided the 

following changes or clarifications to 

information in the proposed rule: Cajon 

Canyon is within the SBNF, not the 

ANF; projects surveys after 1988 and 

1989 were conducted in the SBNF for 

potential habitat and have also yielded 

negative results; potential habitat in the 

SBNF exists near the Crafton Hills area 

and on the west side of the San Jacinto 

Mountains in the vicinity of Bautista 

Canyon, although surveys have failed to 

locate any plants in these locations to 

date. 

Our Response: We appreciate the 

clarification on the location of Cajon 

Canyon and the information on survey 

efforts and potential habitat on the 

SBNF. We have revised the text of this 

final rule to include this new 

information (see Background section 

above). 

(12) Comment: The CNF commented 

that current laws, regulations, and 

policies, as well as the current land 

management plan direction on the CNF, 

are adequate to provide for the 

conservation of the Berberis nevinii 

occurrence and its habitat on the CNF. 

They further stated that they recently 

revised their Land Management Plan 

(LMP) to incorporate management 

direction that provides sufficient 

protection and management for B. 

nevinii and its habitat, and that the 

section 7 consultation on the revised 

LMP resulted in the issuance of a nonjeopardy biological opinion by the 

Service. Additionally, the Species 

Management Guide for B. nevinii 

(Mistretta and Brown 1989) developed 

for the ANF was formally adopted by 

the CNF in 1992 to direct management 

of this species on the CNF. They further 

commented that there has been no 

change in the status and survival 

potential of this occurrence since its 

discovery in 1993; the area’s fire history 

is within the range of natural variation; 

and no development or fuel treatments 

are planned for this area of the CNF that 

would affect the species or its habitat. 

Furthermore, the CNF also commented 

that the designation of critical habitat on 

CNF lands would not provide any 

additional benefit to the conservation of 

the species or its habitat since all sitespecific projects proposed by the CNF 

are subject to section 7(a)(2) 

consultation with the Service and that 

the designation would unnecessarily 

add to their analysis burden by 

requiring the CNF to make a 

determination of effect regarding critical 

habitat when consulting under section 7 

of the Act. 

Our Response: We have determined 

that National Forest lands contain 

physical and biological features 

essential to the conservation of Berberis 

nevinii, and meet the definition of 

critical habitat (see Criteria Used to 

Identify Critical Habitat section below). 

We acknowledge that the revised LMP 

will benefit B. nevinii and its habitat. 

The LMP contains general provisions for 

species conservation and suggests 

specific management and conservation 

actions that will benefit this species and 

the physical and biological features 

essential to its conservation. 

Implementation of the LMP should 

address known threats to this species on 

National Forest lands. As stated above, 

we appreciate and commend the efforts 

of the United States Forest Service 

(USFS) to conserve federally listed 

species on their lands. 

The Secretary may exclude an area 

from critical habitat under section 

4(b)(2) of the Act after taking into 

consideration the economic impact, the 

impact on national security, and any 

other relevant impact if he determines 

that the benefits of such exclusion 

outweigh the benefits of designating 

such area as critical habitat, unless he 

determines that the exclusion would 

result in the extinction of the species 

concerned. We have considered the 

request from the CNF that we exclude 

their lands because it would 

unnecessarily add work in the future to 

determine the effect regarding critical 

habitat for actions on their lands and the 

fact that they had already completed 

consultation under section 7(a)(2) of the 

Act on their revised LMP. Recognizing 

that the CNF already analyzes the 

impacts of its proposed activities on 

both this species and the habitat, we are 

unable to conclude that the benefits of 

exclusion would outweigh the benefits 

of inclusion in this particular instance. 

Under the Joint Counterpart 

Endangered Species Act Section 7 

Consultation Regulations published in 

the Federal Register on December 8, 

2003 (68 FR 68254), projects under the 

National Fire Plan that the USFS 

determines are ‘‘not likely to adversely 

affect’’ any listed species or designated 

critical habitat do not require any 

additional consultation with the 

Service. Projects within the scope of the 

National Fire Plan include projects such 

as prescribed fire, mechanical fuels 

treatments (thinning and removal of 

fuels to prescribed objectives), 

emergency stabilization, burned area 

rehabilitation, road maintenance and 

operation activities, ecosystem 

restoration, and culvert replacement 

actions. Therefore, projects such as 

restoration, revegetation, and removal of 

nonnative species conducted in support 

of the National Fire Plan that are not 

likely to adversely affect federally-listed 

species should not add to the USFS’

workload or cost burden by requiring 

them to conduct a separate analysis and 

make a determination of effect on 

critical habitat when consulting under 

section 7 of the Act. 

Also, as part of our section 7 

consultation with the USFS on the 

CNF’s LMP, the USFS has already 

consulted on various activities carried 

out on National Forest lands including: 

roads and trail management; recreation 

management; special use permit 

administration; administrative 

infrastructure; fire and fuels 

management; livestock grazing and 

range management; minerals 

management; and law enforcement. In 

our 2005 biological opinion on the LMP, 

we determined that implementation of 

the plan was not likely to jeopardize the 

continued existence of B. nevinii. Since 

critical habitat has not been previously 

proposed or designated for this species, 

it is anticipated that the consultation 

with the USFS regarding their current 

LMP will be reinitiated. However, 

because the USFS has already consulted 

with us on potential impacts to this 

species related to the activities outlined 

in the LMP, the USFS can supplement 

its analysis for those activities already 

analyzed in the LMP with the additional 

analysis required for critical habitat 

areas. We do not believe that this 

additional analysis would place an 

undue burden on the USFS in this 

instance. 

In conclusion, we are designating 

National Forest lands that meet the 

definition of critical habitat for B. 

nevinii because we are unable to 


pwalker on PROD1PC71 with RULES2
8418 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

conclude, based on the general 

assertions provided by the agency here, 

that the benefits of excluding these 

National Forest lands outweigh the 

benefits of their inclusion. We will, of 

course, continue to consider on a caseby-case basis in future critical habitat 

rules whether to exclude particular 

Federal lands from such designation 

when we determine that the benefits of 

such exclusion outweigh the benefits of 

their inclusion. 

Comments Related to the Draft 

Economic Analysis (DEA) 

We did not receive any comments 

related to the DEA. 

Comments From State Agencies 

We did not receive any comments 

from State agencies on this rule. 

Summary of Changes from Proposed 

Rule 

In preparing the final critical habitat 

designation for Berberis nevinii, we 

reviewed and considered comments 

from the peer reviewer and the public 

on the proposed designation of critical 

habitat published on February 6, 2007 

(72 FR 5552). In light of comments 

received on the proposed rule and 

information gathered for the DEA, we 

reevaluated the proposed critical habitat 

boundaries and published revisions to 

proposed critical habitat subunits 1B, 

1D, and 1E concurrently with the notice 

of availability for the DEA (72 FR 58793; 

October 17, 2007). We did not receive 

any comments related to the DEA. This 

final rule differs from the proposed 

designation of critical habitat published 

on February 6, 2007 (72 FR 5552), as 

follows: 

(1) In the proposed rule, we based the 

critical habitat boundary descriptions 

on Universal Transverse Mercator 

(UTM) gridlines set every 328 ft (100 m). 

These square grids were overlaid on 

occurrence polygons determined to be 

essential to the conservation of the 

species. Areas where the occurrence 

polygon intersected with a grid cell 

were retained. Although we used 

Geographic Information System (GIS) 

soil and vegetation data in an effort to 

ensure that the habitat within the grid 

cells containing the occurrence 

polygons had one or more of the PCEs, 

as well as aerial photography to remove 

areas that did not contain any of the 

PCEs, the use of UTM gridlines 

effectively created an artificial buffer 

around the resulting areas we 

determined to be essential to the 

conservation of the species. Therefore, 

in this final designation, we have 

refined the critical habitat boundaries 

by screen digitizing habitat polygons 

using ArcMap, a computer GIS program. 

Use of this methodology produced more 

precise boundaries for areas that we 

determined contained the physical and 

biological features essential to the 

conservation of Berberis nevinii. Areas 

outside of these boundaries were 

removed (see the Criteria Used to 

Identify Critical Habitat section for a 

detailed discussion). This method of 

delineation for critical habitat reduced 

the total area of habitat from 

approximately 361 ac (146 ha) to 173 ac 

(70 ha). Total area in this final critical 

habitat rule is less than what was 

estimated in the notice of availability for 

the DEA (72 FR 58793; October 17, 

2007) because the proposed critical 

habitat boundaries for subunits 1B, 1D, 

and 1E in the DEA were also produced 

using 100 m grids (see item (3) below). 

Therefore, the DEA and final economic 

analysis (FEA) likely overestimate the 

potential economic costs of this critical 

habitat designation because this 

reduction in area is not reflected in 

either the DEA or FEA. 

(2) We revised the location and 

boundaries of critical habitat Subunit 1B 

(Agua Tibia Mountain Foothills) on the 

CNF to reflect updated location 

information provided by the National 

Forest. Revised Subunit 1B is in a new 

location and encompasses 

approximately 1 ac (<1 ha) of Federal 

land managed by the CNF, rather than 

a total of 22 ac (9 ha)–17 ac (7 ha) of 

United States Forest Service (USFS) 

land and 5 ac (2 ha) of private land—

as originally proposed. Accordingly, we 

have revised the subunit to reflect this 

new information (please refer to the 

Proposed Critical Habitat Designation 

section of this final rule). 

(3) We reevaluated areas previously 

determined to contain the physical and 

biological features essential to 

conservation of Berberis nevinii in 

subunits bordering Vail Lake. We 

removed areas that do not contain these 

essential features due to lake-level 

fluctuations and recurrent, episodic 

inundation that has lasted for relatively 

long periods of time. These revisions (as 

described in the October 17, 2007, 

notice of availability (72 FR 58793)), 

along with removing the 328 ft (100 m) 

grids as described in item (1) above that 

further refined these two subunits, 

reduced the area meeting the definition 

of critical habitat within proposed 

Subunit 1D (North of Vail Lake) from 22 

ac (9 ha) to 5 ac (2 ha) and the area 

meeting the definition of critical habitat 

within proposed Subunit 1E (South of 

Vail Lake/Peninsula) from 251 ac (102 

ha) to 112 ac (45 ha). We are excluding 

both subunits from this final 

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

Act (see the Relationship of Critical 

Habitat to Habitat Conservation Plans 

(HCPs)—Exclusion Under Section 

4(b)(2) of the Act section below for a 

detailed discussion). 

(4) We made technical corrections and 

clarifications to some of the information 

found in the following sections of the 

proposed rule: Background, Primary 

Constituent Elements, Special 

Management Considerations or 

Protection, Proposed Critical Habitat 

Designation, and Exclusions Under 

Section 4(b)(2) of the Act for Berberis 

nevinii. These changes include new 

information or clarifications on the 

distribution of B. nevinii; reproduction 

strategy and life history; threats to the 

species and its habitat, particularly as 

they relate to transportation projects and 

land development; updated descriptions 

of the critical habitat units as described 

above; and a more comprehensive 

description of the relationship of critical 

habitat to the approved Western 

Riverside County MSHCP and the 

exclusion of private lands covered by 

this plan. 

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 

(a) Essential to the conservation of the 

species and 

(b) Which may require special 

management considerations or 

protection; and 

(c) Specific areas outside the 

geographical area occupied by a species 

at the time it is listed, upon a 

determination that such areas are 

essential for the conservation of the 

species. 

Conservation, as defined under 

section 3 of the Act, means the use of 

all methods and procedures that are 

necessary to bring any endangered or 

threatened species to the point at which 

the measures provided under the Act 

are no longer necessary. Such methods 

and procedures include, but are not 

limited to, all activities associated with 

scientific resources management such as 

research, census, law enforcement, 

habitat acquisition and maintenance, 

propagation, live trapping, 

transplantation, and in the 

extraordinary case where population 

pressures within a given ecosystem 

cannot otherwise be relieved, may 

include regulated taking. 

Critical habitat receives protection 

under section 7 of the Act through the 

prohibition against Federal agencies 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8419 

carrying out, funding, or authorizing the 

destruction or adverse modification of 

critical habitat. Section 7(a)(2) of the Act 

requires consultation on Federal actions 

that may affect 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 the 

government or public to access private 

lands. Such designation does not 

require implementation of restoration, 

recovery, or enhancement measures by 

private landowners. Where a landowner 

requests federal agency funding or 

authorization for an action that may 

affect a listed species or critical habitat, 

the consultation requirements of section 

7(a)(2) would apply, but even in the 

event of a destruction or adverse 

modification finding, the landowner’s 

obligation is not to restore or recover the 

species, but to implement reasonable 

and prudent alternatives to avoid 

destruction or adverse modification of 

critical habitat. 

For inclusion in a critical habitat 

designation, the habitat within the 

geographical area occupied by the 

species at the time of listing must 

contain the physical or biological 

features that are essential to the 

conservation of the species, and be 

included only if those features may 

require special management 

considerations or protection. 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 PCEs 

laid out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species). Under the Act, we can 

designate critical habitat in areas 

outside the geographical area occupied 

by the species at the time it is listed as 

critical habitat only when we determine 

that those areas are essential for the 

conservation of the species. 

Section 4 of the Act requires that we 

designate critical habitat on the basis of 

the best scientific and commercial data 

available. Further, our Policy on 

Information Standards Under the 

Endangered Species Act (published in 

the Federal Register on July 1, 1994 (59 

FR 34271)), the Information Quality Act 

(section 515 of the Treasury and General 

Government Appropriations Act for 

Fiscal Year 2001 (Pub. L. 106–554; H.R. 

5658)), and our associated Information 

Quality Guidelines provide criteria, 

establish procedures, and provide 

guidance to ensure that our decisions 

are based on the best scientific data 

available. They require our 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 we are determining which areas 

should be designated as critical habitat, 

our primary source of information is 

generally the information developed 

during the listing process for the 

species. Additional information sources 

may 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. 

Habitat is often dynamic, and species 

may move from one area to another over 

time. Furthermore, we recognize that 

critical habitat designated at a particular 

point in time may not include all of the 

habitat areas that we may later 

determine are necessary for the recovery 

of the species. For these reasons, a 

critical habitat designation does not 

signal that habitat outside the 

designated area is unimportant or may 

not promote the recovery of the species. 

Areas that are important to the 

conservation of the species, but are 

outside the critical habitat designations, 

will continue to be subject to 

conservation actions that we and other 

Federal agencies implement under 

section 7(a)(1) of the Act. Areas that 

support populations are also subject to 

the regulatory protections afforded by 

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

determined on the basis of the best 

available scientific information at the 

time of the agency 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 (HCPs), or 

other species conservation planning 

efforts if information available at the 

time of these planning efforts calls for 

a different outcome. 

Primary Constituent Elements (PCEs) 

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

of the Act and the regulations at 50 CFR 

424.12, in determining which areas 

within the geographical area occupied 

by the species at the time of listing to 

designate as critical habitat, we consider 

the physical or biological features 

essential to the conservation of the 

species that may require special 

management considerations or 

protection. We consider the physical or 

biological features to be the PCEs laid 

out in the appropriate quantity and 

spatial arrangement for the conservation 

of the species. The PCEs include, but are 

not limited to: 

(1) Space for individual and 

population growth and for normal 

behavior; 

(2) Food, water, air, light, minerals, or 

other nutritional or physiological 

requirements; 

(3) Cover or shelter; 

(4) Sites for breeding, reproduction, 

and rearing (or development) of 

offspring; and 

(5) Habitats that are protected from 

disturbance or are representative of the 

historic, geographical, and ecological 

distributions of a species. 

We derive the PCEs required for 

Berberis nevinii from its biological 

needs as described below and in the 

proposed critical habitat designation 

published in the Federal Register on 

February 6, 2007 (72 FR 5552, pp. 5558–

5561). Additional information can also 

be found in the final listing rule 

published in the Federal Register on 

October 13, 1998 (63 FR 54956). 

Space for Growth and Reproduction 

Berberis nevinii has a limited natural 

distribution; it typically occurs in small 

stands (less than 20 individuals, and 

often only one or two) in scattered 

locations in Los Angeles, San 

Bernardino, and Riverside Counties, 

California, with the largest native 

occurrence (as defined by CNDDB) 

consisting of several stands and totaling 

about 134 individuals to the south of 

Vail Lake in Riverside County (Boyd 

1987; CNDDB 2007). Within these areas, 

B. nevinii requires appropriate soils, 

topography, cover, and drainage within 

the landscape to provide space, food, 

water, air, light, minerals, or other 

nutritional or physiological 

requirements for individual and 

population growth and reproduction. 

Characterizing Berberis nevinii habitat 

is difficult due to the varied soils, 

bedrock substrates, and topography on 

which this species naturally occurs. 

Additionally, this species is known to 

tolerate a wide range of environmental 

conditions in cultivation (Mistretta and 

Brown 1989, p. 6). Berberis nevinii 

typically occurs at elevations from 900 

to 2,000 ft (300 to 650 m) (63 FR 54956), 

but most native occurrences are between 

1,400 and 1,700 ft (427 to 518 m) in 

elevation (Boyd 1987, p. 2; CNDDB 

2007). One native occurrence on the Big 

Oak Mountain summit north of Vail 

Lake in Riverside County is at 

approximately 2,700 ft (823 m) 


pwalker on PROD1PC71 with RULES2
8420 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

elevation, and scattered naturalized 

occurrences are found outside the 900- 

to 2,000-foot (300- to 650-m) elevation 

range (Boyd 1987, pp. 42, 75; CNDDB 

2007). Berberis nevinii has been found 

in varied topography from nearly flat 

sandy washes, terraces, benches, and 

canyon floors to gravelly wash margins, 

steeply-sloped banks of drainages, steep 

rocky slopes, ridges, and mountain 

summits (CNDDB 2007). 

Based on 1987 field surveys, native 

Berberis nevinii occurring on slopes in 

Scott Canyon and south of Vail Lake 

were found in areas with slopes of 19 to 

34 degrees (Boyd 1987, pp. 7, 45, 62, 65, 

68). Other B. nevinii plants occurring on 

slopes in the Vail Lake and Oak 

Mountain area generally occupy slopes 

of less than 34 degrees, based on Service 

GIS data (2006). Introduced (i.e., 

nonnative) occurrences are known to 

grow on steeper slopes (e.g., 40 to 50 

degrees) in San Francisquito Canyon 

(Boyd 1987, p. 7). Berberis nevinii 

generally occurs on north, northeast, or 

northwest-facing slopes; however, 

exceptions to this have been noted, 

including several occurrences, both 

native and naturalized, found on south 

and west-facing slopes (Boyd 1987, pp. 

7, 40, 77; Boyd et al. 1989, p. 24; Soza 

and Boyd 2000, p. 22; CNDDB 2007). 

Berberis nevinii is found on a variety 

of soils and bedrock substrates. Native 

occurrences appear to be strongly 

associated with alluvial soils or soils 

derived from nonmarine sedimentary 

based substrates, especially sandy 

arkose (sandstone derived from granitic 

material) (Boyd 1987, p. 7; Boyd and 

Banks 1995, unpaginated; Soza and 

Boyd 2000, p. 25). Most of the plants at 

Vail Lake are found in small stands on 

Temecula arkose soils around the 

southern end of the lake, with scattered 

individuals in the ‘‘badlands’’ to the 

southeast and southwest (Boyd and 

Banks 1995, unpaginated). Several 

small, isolated stands on the south flank 

of Big Oak Mountain are associated with 

metasedimentary substrates and springs 

or seeps (Boyd et al. 1989, p. 14; Soza 

2003, unpaginated), and two plants at 

the Big Oak Mountain summit occur on 

heavy adobe or gabbro type soils with 

high water-holding capacity formed 

from metavolcanic geology (Mesozoic 

basic intrusive rock) (Soza 2003, 

unpaginated). The CNF occurrence is 

found at the contact between 

sedimentary (arkose) and 

metasedimentary substrates (Boyd and 

Banks 1995, unpaginated). Berberis 

nevinii has also been found growing on 

Pelona schist outcrops and granitic 

knolls (Boyd 1987, p. 7; Soza and Boyd 

2000, p. 22). 

Overlying occurrence polygons with 

Natural Resource Conservation Service 

soils data, native Berberis nevinii 

occurrences appear to be associated 

with the following soil series: 

• Riverwash at the Lopez Canyon site 

in Los Angeles County; 

• Sandy loam of the Saugus series in 

Scott Canyon and coarse sandy loam of 

the Metz series from the San Timoteo 

Canyon location in San Bernardino 

County; and 

• At least 17 different soil series in 

the Vail Lake and Oak Mountain area in 

Riverside County, including Monserate 

sandy loams; Hanford coarse sandy 

loams; fine sandy loams of the Arlington 

and Greenfield, Pachappa, and Cajalco 

series; Cajalco rocky fine sandy loams; 

rocky loams of the Lodi and Las Posas 

series; and loams of the Las Posas, San 

Timoteo, and San Emigdio series 

(Service GIS data 2006). 

Additional soil series found within 

mapped B. nevinii occurrences include 

gullied land and riverwash primarily 

south of Vail Lake, and badlands to the 

north and southeast of Vail Lake. 

Occurrences north of Vail Lake on the 

south slopes of Big Oak Mountain and 

its summit are mapped primarily as 

Auld clay, 8 to 15 percent slopes; 

Cajalco rocky fine sandy loam, 15 to 50 

percent slopes, eroded; and Las Posas 

loam and rocky loam, 8 to 15 percent 

slopes, eroded. Based on the revised 

location information received during the 

public comment period, the B. nevinii 

site on the CNF south of Vail Lake is 

now mapped as rough broken land and 

Vasalia gravelly sand loam, with 5 to 9 

percent slopes (Service GIS data 2007). 

Native occurrences of Berberis nevinii 

are generally found growing in welldrained soils, and are known from xeric 

slopes and rock outcrops. According to 

Lenz and Dourley (1981, as cited in 

Mistretta and Brown 1989, p. 5), B. 

nevinii is considered a drought-tolerant 

species, but it will also accept large 

amounts of water in cultivation without 

apparent damage. Observations of native 

occurrences suggest that, within its 

general habitat, B. nevinii may be 

associated with more mesic 

microhabitats. Niehaus (1977, p. 2) 

noted that B. nevinii occurs mostly at 

the margins of dry washes in or below 

the foothill zone, but is not present in 

the driest portion of a wash. At some 

sites, B. nevinii is associated with 

species such as Lepidospartum 

squamatum (scale-broom) and Prunus 

ilicifolia (holly-leaved cherry), which 

require groundwater (Niehaus 1977, p. 

2). Many of the plants in the Vail Lake 

area are growing on mesic north- or 

northwest-facing slopes. Several stands 

are in canyons draining the south flank 

of Big Oak Mountain and are associated 

with springs or seepages (Boyd et al. 

1989, p. 14). The two plants on the 

summit of Big Oak Mountain are on clay 

soils with a high water-holding 

capacity. In the late spring and early 

summer, this site may receive greater 

moisture in the form of condensation 

from intrusion of marine air (Soza 2003, 

unpaginated). Information received by a 

peer reviewer of the proposed critical 

habitat rule appears to support this 

association with mesic microhabitats, as 

it was noted that recruitment of B. 

nevinii is typically into relatively mesic 

chaparral sites (White 2001, p. 36). 

Berberis nevinii occurs in association 

with the following plant communities: 

alluvial scrub, cismontane (e.g., 

chamise) chaparral, coastal sage scrub, 

oak woodland, and/or riparian scrub or 

woodland (Boyd 1987, pp. 2, 7; Boyd 

1989, pp. 6–8; 63 FR 54958; CNPS 2001, 

p. 96; CNDDB 2007). Native B. nevinii 

in Lopez Canyon, Scott Canyon, and 

San Timoteo Canyon, as well as many 

of those found in the Vail Lake and Oak 

Mountain area, occur within the 

California Wildlife Habitat 

Relationships (CWHR) landcover 

described as coastal scrub or mixed 

chaparral (Service GIS data 2006). 

Berberis nevinii is occasionally found in 

coastal oak woodland in the Vail Lake/ 

Oak Mountain area, characterized by 

open to dense stands of the large 

evergreen Quercus agrifolia (coast live 

oak) in close association with 

surrounding scrub vegetation (Boyd et 

al. 1989, p. 7). In the Vail Lake area, this 

woodland type is found primarily in 

sandy washes, benches, and canyons on 

north-facing slopes, near ephemeral 

stream channels, or associated with 

springs (Boyd et al. 1989, pp. 7–8). The 

San Francisquito site, where B. nevinii 

has apparently naturalized, also has 

some coastal oak woodland, and Q. 

agrifolia is locally common south of B. 

nevinii in the canyon bottom at the 

Lopez Canyon site (Soza and Boyd 2000, 

pp. 23, 26). Several stands in the Vail 

Lake area occur within the CWHR 

landcover described as valley foothill 

riparian, and several occurrences are 

also partly characterized as annual 

grassland (Service GIS data 2006). The 

Scott Canyon site is described as having 

an abundance of annual grasses (Boyd 

1987, pp. 44–48, CNDDB 2007). 

Extant, native occurrences of Berberis 

nevinii are often found in association 

with one or more of the following 

chaparral and coastal sage scrub species: 

Eriogonum fasciculatum (California 

buckwheat), Artemisia californica 

(California sagebrush), Adenostoma 

fasciculatum (chamise), Rhus ovata 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8421 

(sugar bush), R. trilobata (skunkbrush), 

R. integrifolia (lemonadeberry), Salvia 

mellifera (black sage), Sambucus 

mexicana (elderberry), Prunus ilicifolia 

(hollyleaf cherry), Rhamnus crocea 

(spiny redberry), and Quercus 

berberidifolia (scrub oak) (Boyd 1987, p. 

2; CNDDB 2007). Several native 

occurrences are associated with coastal 

oak woodland or riparian/alluvial scrub 

vegetation, such as Quercus agrifolia, 

Populus fremontii (Fremont 

cottonwood), Salix laevigata (red 

willow), Platanus racemosa (western 

sycamore), Baccharis glutinosa (mulefat), or Lepidospartum squamatum 

(CNDDB 2007). Boyd (1987, p. 2) has 

noted that certain desert floral elements 

such as Encelia farinosa (brittlebush), 

Chrysothamnus nauseosus (rubber 

rabbitbrush), Artemisia tridentata 

(sagebrush), Chilopsis linearis (desert 

willow), Yucca schidigera (Mojave 

yucca), Opuntia parryi (snake cholla), 

and Atriplex canescens (fourwing 

saltbush) are often characteristic of the 

general area and many of the specific 

sites where B. nevinii occurs in the 

vicinity of Vail Lake. The presence of 

typically desert floral elements mixing 

with cismontane chaparral shrubs likely 

reflects the transitional nature of these 

sites between the cismontane area to the 

west and the Colorado Desert to the east 

(Boyd et al. 1989, p. 4). One native 

occurrence is on relatively flat clay 

lenses in an open grassland area with 

chaparral nearby. Associated plant 

species include Chenopodium 

californicum (pigweed), Avena fatua 

(wild oat), Harpagonella palmeri 

(Palmer’s grappling hook), Plantago 

erecta (California plantain), Convolvulus 

simulans (bindweed), Galium porrigens 

(climbing bedstraw), and Delphinium 

sp. (Larkspur) (Wallace 2006b, p. 1). 

Several observers have noted that 

seedlings and immature Berberis nevinii 

tend to occur in areas with some 

measure of protection, either in the 

shade or cover of another plant (Boyd 

1987, pp. 77–78; Mistretta and Brown 

1989, p. 10). This suggests the need for 

some relatively long fire-free period to 

allow for canopy growth and the 

creation of conditions conducive to 

germination, establishment, and 

recruitment of B. nevinii into chaparral. 

This idea was also proposed by White 

(2001, p. 36) and reiterated in his review 

of our proposal (White 2007, p. 1). Boyd 

et al. (1987, p. 77) noted that mature 

cultivated individuals were located in 

areas exposed to full sunlight, and 

Reiser (2001, unpaginated) noted that 

mature B. nevinii shrubs frequently 

tower above associated subshrubs. 

Based on field observations, seedlings 

may be shade tolerant, but that as B. 

nevinii matures, it may require more 

sunlight (Mistretta and Brown 1989, 

Attachment: ‘‘Report on the Population 

and Ecological Data of Mahonia nevinii’’

by Joy Nishida, p. 1). A similar shade 

and sunlight requirement has been 

noted for several other resprouting 

chaparral shrub species, where 

seedlings and saplings are found mostly 

in the shade of other plants and seldom 

in the open, but recruitment into the 

shrub population appears to require the 

later development of a canopy gap, such 

as may be created by a fire event (Keeley 

1992, p. 1,206). 

We have little information about 

pollinators, seed dispersal mechanisms, 

or the reproductive biology of this 

species. Berberis nevinii has loose 

clusters of bisexual yellow flowers that 

open between March and April, and 

fleshy, yellowish-red to red berries with 

plump, brown seeds that are present 

from May to July (Wolf 1940, 

unpaginated; Munz 1974, p. 245; 

Neihaus 1977, p. 1; Morris 2006). 

Species-specific information on 

pollinators for B. nevinii is lacking. 

Native bees in the following genera have 

been collected on species of Berberis 

native to North America: Andrena, 

Osmia, Emphoropsis, Synhalonia, 

Melissodes, and Ceratina (Krombein et 

al. 1979, vol. 2, pp. 1796, 1797, 1835, 

2032, 2129, 2152, 2168, 2182). These are 

generalist taxa; however, their habitat 

requirements and home ranges relative 

to the native Berberis taxa have not been 

determined. According to the U.S. 

Department of Agriculture (2006), native 

Berberis species ‘‘provide significant 

forage for native bees.’’ According to 

Mussen (2002), California’s native 

Berberis species are ‘‘visited (and 

probably pollinated) by honey bees’’

(Apis mellifera). 

The genus Berberis contains species 

that are both self-compatible and selfincompatible (Anderson et al. 2001, p. 

227), and while we do not know if B. 

nevinii is self-incompatible, we can 

draw some conclusions based on 

observed levels of reproduction, or the 

lack thereof, at known occurrences. As 

noted by the peer reviewer for the 

proposed critical habitat rule, several 

occurrences consist of only a single 

plant that has existed for years or 

decades without reproducing (Mistretta 

and Brown 1989), suggesting a selfincompatible pollination system (White 

2001, p. 36). If this is the case, recovery 

of this species may require pollen 

transfers among the occurrences with 

demonstrated low reproductive output. 

Berberis nevinii does not appear to 

reproduce by vegetative means to any 

great extent if at all (Mistretta and 

Brown 1989, p. 5; Boyd 2006); in other 

words, it does not regularly produce 

clones (genetically identical direct 

descendants) that are well separated 

from the parent individual through the 

process of rooting at nodes of slender 

elongate rhizomes, as is the case with 

some other members of the genus 

Berberis. According to White (2007, p. 

1), the now-extirpated B. nevinii 

occurrence in San Timoteo Canyon, 

previously reported to reproduce 

vegetatively, was more likely 

resprouting from a large basal burl (refer 

to previous discussion of this 

terminology under the Species 

Description and Reproduction section 

above). Because vegetative reproduction 

appears to be uncommon, Mistretta and 

Brown (1989, p. 5) concluded that 

perpetuation of the species is likely 

dependent on its occasional production 

of viable seed. 

Landscape Ecology and Population 

Demographics of Berberis Nevinii 

Many extant occurrences of Berberis 

nevinii are associated with chaparral or 

coastal sage scrub. Fire is a natural 

occurrence in southern California 

shrublands, and plants occurring in 

these vegetation communities are 

resilient or adapted to these types of 

disturbances (Keeley 1991, p. 84; Tyler 

1996, p. 2,182). Postfire regeneration 

mechanisms among California 

shrubland species can generally be 

described as obligate seeding, obligate 

sprouting, or facultative sprouting 

(Kelly and Parker 1990, p. 114). Mature 

plants of obligate seeder species are 

typically killed by fire, and seeds are the 

only means of regeneration. Most have 

locally dispersed seeds that persist in 

the soil seed bank until dormancy is 

broken by an environmental stimulus, 

such as intense heat (Keeley 1991, p. 

82). Plants of obligate sprouter species, 

on the other hand, are rarely killed by 

fire, but rather resprout from roots, 

lignotubers (burls), or epicormic buds 

(Kelly and Parker 1990, p. 114). These 

species have seeds that do not require 

fire for germination, but require fire-free 

periods for recruiting new seedlings 

(Keeley 1991, p. 82). In some species, 

postfire regeneration occurs by both 

sprouts and seeds (facultative 

sprouters), and fire-caused mortality is 

variable, likely due to characteristics of 

the individual fire (Kelly and Parker 

1990, p. 114). 

Based on additional information 

received through peer review of the 

February 6, 2007, proposed critical 

habitat rule (72 FR 5552), Berberis 

nevinii appears to be an obligate 

sprouter as defined above, and its life 

history matches Keeley’s (1991) 


pwalker on PROD1PC71 with RULES2
8422 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

description of the ‘‘fire resister’’ or 

‘‘nonrefractory seed’’ syndrome (i.e., 

seeds germinate without fire-associated 

cues) (White 2007, p. 1). As stated in the 

proposed rule, B. nevinii resprouts 

following fire (Soza and Fraga 2003, p. 

2; Sanders 2006, unpaginated; Mistretta 

and Brown 1989, p. 5). According to 

Soza and Boyd (2003, p. 2), Soza (2006, 

unpaginated), and the USFS (2005, p. 

237), post-fire surveys on ANF and CNF 

reported B. nevinii regeneration by 

resprouting and recruitment from seeds. 

However, White (2007, p. 1), did not 

consider it likely that these seedlings 

would survive exposure during early 

post-fire years and would die before 

reaching reproductive maturity. 

Because southern California 

shrublands are adapted to a natural fire 

regime, plants within these 

communities likely require such 

conditions for long-term survival (63 FR 

54961). Comparison of the 

contemporary fire regime in southern 

California to that of the natural regime 

(i.e., pre-fire suppression) shows that 

fire frequency has increased in the 

lower coastal valley and foothill zone, 

and that high fire frequencies tend to 

occur in those areas where high human 

densities interface with relatively 

undeveloped landscape (Keeley et al. 

1999, p. 1,831; Keeley and 

Fotheringham 2001, p. 1,545; Wells et 

al. 2004, p. 147; Keeley 2006, p. 382). 

However, fire suppression has kept fires 

in check so that most stands burn 

within the range of natural variation 

(Keeley 2006, p. 382). Coastal sage scrub 

and chaparral have the largest amount 

of area that has burned multiple times 

over the past century and have the 

highest potential fire frequencies of all 

vegetation community types; only 

coastal sage scrub clearly shows an 

increasing trend in area burned over this 

time period (Wells et al. 2004, pp. 148, 

151). 

Berberis nevinii’s specific response to 

altered fire regimes (e.g., changes to fire 

frequency, timing, or intensity) is 

unknown (63 FR 54961). However, 

overly frequent fire on the landscape 

could potentially kill young B. nevinii 

before they reach their reproductive 

potential and may adversely affect 

mature B. nevinii (Boyd 1991, pp. 7, 9) 

by causing repeated resprouting that 

depletes stored resources faster than 

they can accumulate during fire-free 

periods (White 2007, p. 1). Repeated 

burnings over short intervals could 

eventually lead to type conversion of 

chaparral/shrublands to nonnative 

annual grassland (Boyd 1991, p. 9; 

Keeley et al. 1999, p. 1,831). This type 

conversion has been observed in areas 

surrounding urban centers (Keeley 2006, 

p. 382). As noted above, the presence of 

a seed bank is inconsistent with the 

‘‘non-refractory seed’’ (fire resistor) 

syndrome considered to be represented 

in B. nevinii (White 2007, p. 1); thus, 

overly frequent fires are not likely to 

adversely affect the soil seed bank for 

this species, as suggested in the 

proposed rule to designate critical 

habitat (72 FR 5560). 

Life history characteristics and 

population demographics of Berberis 

nevinii are largely unknown and 

unstudied. Berberis nevinii shrubs are 

long-lived (>50 years) (Mistretta and 

Brown 1989, p. 5) with low 

reproductive rates due to sporadic 

production of fertile seed (Mistretta and 

Brown 1989, p. 5). It has been suggested 

that B. nevinii may be a paleoendemic 

relic (meaning that its present 

distribution is a remnant of a formerly 

wider distribution) (Reiser 2001, 

unpaginated), which could explain its 

limited (small and widely scattered) 

distribution and low reproductive rates 

in the wild (Soza 2003). 

The ability of Berberis nevinii to 

stump sprout following disturbance 

(e.g., fire), as well as its great longevity, 

may play an important role in the 

persistence of the species. As discussed 

in Garcia and Zamora (2003, p. 921), 

there may be a population maintenance 

trade-off for long-lived plants between 

replacement of individuals by seeding 

and persistence of established plants. A 

persistence strategy may allow plants to 

survive through unfavorable conditions, 

potentially to reproduce again when 

conditions are more favorable (Garcia 

and Zamora 2003, p. 924). As 

mentioned previously, sexual or 

vegetative reproduction appears to be 

uncommon in many B. nevinii 

occurrences. However, because the 

species is long-lived, intermittent seed 

production over the lifespan of a shrub 

may be more important than annual 

seed production for perpetuating the 

species. 

Primary Constituent Elements for 

Berberis Nevinii 

Based on our current knowledge of 

the life history, biology, and ecology of 

Berberis nevinii and the habitat 

requirements for sustaining the essential 

life history functions of the species, we 

have determined that B. nevinii requires 

the PCEs described below: 

(1) Low-gradient (i.e., nearly flat) 

canyon floors, washes and adjacent 

terraces, and mountain ridge/summits, 

or eroded, generally northeast- to 

northwest-facing mountain slopes and 

banks of dry washes typically of less 

than 70 percent slope that provide space 

for plant establishment and growth; 

(2) Well-drained alluvial soils 

primarily of non-marine sedimentary 

origin, such as Temecula or sandy 

arkose soils; soils of the CajalcoTemescal-Las Posas soil association 

formed on gabbro (igneous) or latite 

(volcanic) bedrock; metasedimentary 

substrates associated with springs or 

seeps; and heavy adobe/gabbro-type 

soils derived from metavolcanic geology 

(Mesozoic basic intrusive rock) that 

provide the appropriate nutrients and 

space for growth and reproduction; and 

(3) Scrub (chaparral, coastal sage, 

alluvial, riparian) and woodland (oak, 

riparian) vegetation communities 

between 900 and 3,000 feet (275 and 

915 meters) in elevation that provide the 

appropriate cover for growth and 

reproduction. 

This final designation is defined for 

the conservation of the physical and 

biological features essential to the 

conservation of the species, which 

support the life history functions of the 

species, through the identification of the 

appropriate quantity and spatial 

arrangement of areas containing the 

PCEs. Some units contain all of these 

PCEs and support multiple life 

processes, while some units contain 

only a portion of these PCEs, those 

necessary to support the species’

particular use of that habitat. Because 

not all life history functions require all 

the PCEs, not all critical habitat units 

will contain all the PCEs. 

Special Management Considerations or 

Protection 

When designating critical habitat, we 

assess whether the areas within the 

geographical area occupied by the 

species at the time of listing contain the 

physical or biological features essential 

to the conservation of the species, and 

whether these features may require 

special management considerations or 

protection. As stated in the final listing 

rule (63 FR 54956, October 13, 1998), 

threats to the species and its physical 

and biological features include urban 

development, off-road vehicle use, 

human recreation (e.g., horseback 

riding), highway projects, fire 

management strategies (suppression 

measures, brush clearing) that alter 

natural fire processes to which native 

plant communities are adapted, and the 

introduction of invasive, nonnative 

plants that may compete with Berberis 

nevinii or contribute to combustible fuel 

loads (63 FR 54961). These threats can 

directly or indirectly result in the loss, 

modification, degradation, or 

fragmentation of B. nevinii habitat, 

thereby eliminating or reducing 

potential habitat for seed production 

and germination, seedling 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8423 

establishment, plant growth and 

maturation, and population growth. 

Individually or combined, these threats 

may require special management 

considerations or protection of the 

physical and biological features as 

addressed here and in more detail 

within the individual critical habitat 

unit descriptions that follow. 

Urbanization, flood control measures, 

road widening, and habitat degradation 

from extensive recreational use have 

contributed to the loss of Berberis 

nevinii habitat and have apparently 

resulted in the extirpation of several 

occurrences, particularly in the San 

Fernando Valley of Los Angeles County 

(63 FR 54961). Urban development is 

currently the primary threat to B. nevinii 

habitat and occurrences in the vicinity 

of Vail Lake and Oak Mountain in 

Riverside County. Urbanization may 

destroy, degrade, fragment, or otherwise 

alter the topography, soil, and 

vegetation community structure in ways 

that make areas less suitable for B. 

nevinii. Land grading for residential 

development and road projects may 

affect the topography of the site (PCE 1); 

alter soil composition and structure 

(PCE 2); change vegetation community 

composition and structure through 

clearing or thinning of vegetation and 

the introduction of nonnative plants 

(PCE 3); increase erosion potential (PCE 

1 and 2); and change hydrological 

(drainage and water infiltration) 

patterns, thereby decreasing the quality 

and extent of available habitat for B. 

nevinii. Additionally, urban 

development within or near B. nevinii 

habitat may increase the frequency of 

fire on the landscape due to increased 

combustible fuel loads that may result 

from the incursion and spread of annual 

nonnative grasses and an increased 

potential for fire ignition. 

In the February 6, 2007, proposed rule 

(72 FR 5552), we focused primarily on 

potential indirect impacts of 

urbanization on Berberis nevinii habitat 

and occurrences in the vicinity of Vail 

Lake and Oak Mountain (72 FR 5565–

5567). Urban development is not 

expected to directly impact the known 

occurrences of B. nevinii on Federal 

land in the Vail Lake and Oak Mountain 

area, although indirect impacts 

associated with increased urbanization 

may occur. On the other hand, B. nevinii 

habitat on private land in this area may 

be subject to some degree of residential 

development, as described below in the 

critical habitat subunit descriptions (see 

the Critical Habitat Designation section 

of this final rule). However, these 

private lands are located within the 

Criteria Area of the Western Riverside 

County MSHCP and are targeted, in 

whole or in part, for acquisition and 

inclusion in the MSHCP Conservation 

Area as Additional Reserve Lands. 

Specifically, the conservation objectives 

of the MSHCP include conservation and 

management of at least 8,000 ac (3,238 

ha) of suitable habitat, including all 

known locations of B. nevinii in the Vail 

Lake area (see the Relationship of 

Critical Habitat to Habitat Conservation 

Plan Lands—Exclusions Under Section 

4(b)(2) of the Act section below for a 

detailed discussion of the MSHCP). 

Recreational activities may also 

impact the physical and biological 

features essential to the conservation of 

the species by destroying, degrading, 

fragmenting, or otherwise altering the 

topography, soil, and vegetation 

community in ways that make areas less 

suitable for Berberis nevinii. For 

example, off-highway vehicle use, 

hiking, camping, horseback riding, and 

recreational facility development in or 

near B. nevinii occurrences could alter 

or destroy surface and subsurface 

structure through trampling and 

clearing or thinning of vegetation (PCE 

3), the introduction of nonnative plants 

(PCE 3), soil disturbance or compaction 

(PCE 2), and increased erosion and 

changes to hydrological (drainage and 

water infiltration) patterns that may in 

turn affect the topography, soil, and 

vegetation of the site (PCE 1, 2, and 3). 

Activities associated with fire 

management, such as fuel treatments, 

prescribed burns, and wildfire 

suppression, may also impact the 

physical and biological features 

essential to the conservation of the 

species. The creation of fuel breaks, 

brush clearing or thinning, and the use 

of heavy equipment and off-road 

vehicles for fire management could 

physically remove or disturb soils and 

alter soil composition (PCE 2), remove 

or destroy vegetation (PCE 3), increase 

erosion, and alter the topography (PCE 

1) and hydrologic patterns in or near 

Berberis nevinii occurrences. Fire 

management activities could facilitate 

the incursion or spread of invasive, 

nonnative plants by potentially 

dispersing seeds and creating 

(disturbance) conditions that increase 

the competitive edge of nonnative 

species over native species, thereby 

altering the composition of the 

vegetation community (PCE 3). As 

pointed out in the proposed critical 

habitat rule (72 FR 5552), vegetation 

community composition and structure 

could be altered by fire management 

activities such as prescribed fires that 

are too frequent or that occur at times 

of the year atypical of the natural fire 

regime, or by fire suppression that 

allows overgrowth of high canopy cover, 

limiting or eliminating plant species 

that require full or partial sun from the 

plant community (72 FR 5563). Berberis 

nevinii’s life history characteristics 

indicate that it likely recruits into 

chaparral during fire-free periods and 

may require long intervals between fires 

for recruitment and population 

increases; thus, overly frequent fire is a 

substantial and immediate threat to this 

species (White 2007, p. 1). 

While highway projects were 

identified in the final listing rule (63 FR 

54956, October 13, 1998) and proposed 

critical habitat rule (72 FR 5552; 

February 6, 2007) as a threat to Berberis 

nevinii, we do not anticipate that this 

activity will affect designated critical 

habitat in the foreseeable future. 

Specifically, the proposed critical 

habitat rule identified the proximity of 

Highway 79 as a potential threat to the 

B. nevinii occurrence and habitat on the 

CNF (Subunit 1B) in part due to 

proposed highway widening and 

realignment activities (72 FR 5565). 

However, we no longer anticipate that 

these activities will affect Subunit 1B 

because: (1) There are currently no 

plans to widen the portion of State 

Route 79 closest to Subunit 1B, and (2) 

the revised subunit is now more than 

525 ft (160 m) south of the highway, 

which is far enough away that impacts 

to the subunit from construction or 

widening activities are unlikely. 

Based on information provided for the 

economic analysis, nonnative Arundo 

donax (Arundo) and other invasive 

grasses are present in Subunit 1B, and 

the CNF anticipates an eradication effort 

based on the weed management strategy 

in the USFS’ Revised Land Management 

Plan for the Four Southern California 

National Forests (USFS 2005). 

Additional information obtained on 

water storage at Vail Lake indicates that 

lake level fluctuations could affect 

proposed subunits bordering Vail Lake 

(specifically, proposed subunits 1D and 

1E). While we revised proposed critical 

habitat boundaries for these subunits 

based on the currently permitted storage 

capacity of Vail Lake (see the Criteria 

Used to Identify Critical Habitat section 

in this final rule), fluctuating water 

levels that surpass permitted storage 

levels and lake storage capacity could 

still affect Berberis nevinii in subunits 

that border Vail Lake. However, the 

occurrences that are located closest to 

Vail Lake have not been inundated or 

affected by rising water levels and 

fluctuations in the recent past (Boyd 

2007, p. 1), and we do not anticipate 

that any B. nevinii individuals in this 

area will be affected. 


pwalker on PROD1PC71 with RULES2
8424 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

Criteria Used To Identify Critical 

Habitat 

Berberis nevinii naturally occurs in 

small, isolated stands across its 

geographic range, with several known 

occurrences consisting of only a single 

large and presumably very old 

individual. At most sites, there is little 

to no evidence of reproduction. The Vail 

Lake and Oak Mountain area in western 

Riverside County has the highest 

concentration of native B. nevinii, 

representing several size (age) classes. 

Plants occur in numerous stands 

scattered throughout the area, with the 

largest number of plants located at the 

south edge of Vail Lake and on the 

peninsula protruding into the lake. The 

long-term conservation of B. nevinii will 

depend upon the protection of these 

core native occurrences and the 

maintenance of ecological functions 

within these sites. 

We delineated critical habitat for 

Berberis nevinii using the following 

criteria: (1) Areas occupied by naturally 

occurring individuals of the species at 

the time of listing and areas that are 

currently occupied by naturally 

occurring individuals; (2) occupied 

areas within the historical range of the 

species; (3) areas containing one or more 

of the PCEs for the species; and (4) areas 

currently occupied by more than two B. 

nevinii plants that show evidence of 

reproduction (i.e., fruits with seed, 

seedlings, or plants of various size or 

age classes) on site. For sites where 

there was no information available on 

reproduction or size/age class 

distribution, we assumed that 

reproduction had occurred at some 

point in the past if multiple B. nevinii 

plants were present. As discussed 

below, we also considered the 

ecological uniqueness of sites. 

We did not include sites with only 

one individual or sites with two 

individuals of the same size/age class 

because this condition may reflect a lack 

of successful reproduction and therefore 

the long-term viability of these 

occurrences is questionable. As 

discussed in the proposed critical 

habitat rule, many Berberis nevinii 

occurrences consist of very few 

individuals, and sometimes consist of 

only one or two large (presumably old) 

shrubs that have persisted on a site for 

many decades without evidence of 

reproducing. Because of the lack of 

evidence of reproduction for these small 

occurrences, and the low reproductive 

output of mature plants and limited 

numbers of surviving juvenile plants in 

general, we do not consider sites with 

only one plant or two plants of the same 

size/age class to represent an occurrence 

that exhibits a measurable degree of 

reproductive success that is likely to 

contribute to the recovery of the species. 

As explained in the Primary 

Constituent Elements section of this 

final rule, a self-incompatible 

pollination system has been suggested 

(White 2001, p. 36). Additionally, 

Berberis nevinii does not appear to 

reproduce by vegetative means 

(Mistretta and Brown 1989, p. 5; Boyd 

2006), as is the case with some other 

members of the genus Berberis. 

Therefore, pollen transfers from plants 

in different occurrences are likely 

necessary for reproduction to occur in 

sites supporting only one plant or two 

plants of the same size/age class. The 

habitat requirements and home ranges 

of potential pollinator species relative to 

native Berberis occurrences have not 

been determined; however, the lack of 

evidence of reproduction in these small 

B. nevinii occurrences suggests that 

pollination may not be occurring or 

another biological constraint is 

impacting the occurrences. The fact that 

reproduction has not been in evidence 

at these sites in several decades, if at all, 

suggests that they may not be viable 

occurrences over the long term. Whether 

or not these occurrences may contribute 

to recovery of the species is unknown at 

this time. We will continue to explore 

the potential conservation value of these 

small occurrences, and consider these 

occurrences in future recovery actions 

as appropriate. 

Whether naturalized occurrences will 

play a role in conservation of the 

species is also unknown. However, the 

naturalized occurrences represent some 

of the largest (in terms of number of 

individuals) and most vigorously 

reproducing occurrences of the species, 

and could potentially play a role in 

preserving genetic diversity. At least 

one occurrence supporting naturalized 

plants (San Francisquito Canyon, Los 

Angeles County) may contain an 

individual or descendents of an 

individual that originated from a nearby 

extirpated occurrence (i.e., the San 

Fernando Valley, Los Angeles County). 

Thus, we will continue to explore the 

potential conservation value of 

introduced occurrences, and consider 

these occurrences in future recovery 

actions as appropriate. 

We are aware of 39 records for 

Berberis nevinii rangewide documented 

by the CNDDB (2007). However, we do 

not have adequate information to 

determine the status of six of these 

occurrences, as described in the Criteria 

Used to Identify Critical Habitat sections 

of the proposed rule (72 FR 5552; 

February 6, 2007, p. 5562), and no 

additional information regarding these 

particular occurrences was provided to 

us during the public comment period. 

We considered 19 of the CNDDB records 

for B. nevinii to be extant, native 

occurrences, and all of these were 

known at the time of listing, although 

each was not specifically described in 

the final listing rule (63 FR 54956, 

October 13, 1998). The majority of the 

extant, native occurrences are in 

Riverside County in the vicinity of Vail 

Lake and Oak Mountain, described in 

the final listing rule as one of the 

primary geographical areas occupied by 

the species. Only six of the CNDDB B. 

nevinii occurrences, all in Riverside 

County in the vicinity of Vail Lake and 

Oak Mountain, met our criteria for 

designating critical habitat. Five of the 

six occurrences consist of more than 

two individuals, and evidence of 

reproduction (multiple size/age classes, 

seedlings, and/or fruit with seed) is 

known for three of the occurrences 

(CNDDB element occurrences 24, 31, 

and 38). We do not know if 

reproduction has occurred at the other 

three sites (CNDDB element occurrences 

32, 35, and 36), but we believe that it 

is possible given that these occurrences 

represent some of the largest groupings 

of the species. 

As discussed in the Background 

section of the proposed rule (72 FR 

5552; February 6, 2007), the Western 

Riverside County MSHCP database 

contains 32 records of extant Berberis 

nevinii occurrences from the vicinity of 

Vail Lake and Oak Mountain alone, as 

well as one record from the Soboba 

Badlands (72 FR 5555). However, many 

of the MSHCP records overlap and some 

appear to duplicate CNDDB records. In 

contrast to the CNDDB records, the 

MSHCP records largely do not contain 

accompanying data, such as number of 

plants, origin (native versus 

introduced), and habitat associations, 

making it impossible to accurately 

quantify the number of distinct 

occurrences or plants in this area 

(Service 2004, pp. 330–331) or 

determine the specific location of many 

of these occurrences. Therefore, we did 

not rely on the MSHCP occurrence 

records for determining critical habitat, 

but rather we sought additional 

information to clarify these records 

during the public comment period. We 

did not receive any additional 

information in this regard. 

We evaluated whether geographically 

peripheral (e.g., Los Angeles and San 

Bernardino Counties) native 

occurrences would fit into our criteria 

for identifying critical habitat. Despite 

the biological conservation arguments 

raised by Lesica and Allendorf (1995; 

pp. 753, 754) to conserve peripheral 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8425 

populations, we found that these 

Berberis nevinii occurrences did not 

meet our criteria for designation of 

critical habitat because they consisted of 

very few individuals (often only one) 

and did not appear to be reproducing. 

For example, the Lopez Canyon 

(CNDDB 2007 element occurrence 43) 

and Scott Canyon (CNDDB 2007 

element occurrence 5) occurrences both 

consist of single large (old) individuals 

with no signs of past or current 

reproduction by seed. The San Timoteo 

Canyon occurrence (CNDDB element 

occurrence 4) has an unknown number 

of individuals (potentially only one), 

and reproduction has likely not 

occurred at this site in many decades 

(Sanders 2006, unpaginated). 

We also considered the ecological 

uniqueness of sites because occurrences 

within unique habitats may harbor 

genetic diversity that allows for 

persistence in these areas (Lesica and 

Allendorf 1995, p. 757). We determined 

that ecologically unique habitats were 

essential to conservation of Berberis 

nevinii, and we included these areas in 

designated critical habitat if they were 

occupied by more than a single large 

(i.e., mature) individual. Areas occupied 

by only one large individual represent 

sites where regeneration is not 

occurring; thus, we did not consider 

these areas to be essential to 

conservation of the species. 

We also evaluated whether 

maintaining adjacent unoccupied 

habitat or corridors between 

occurrences may be important to 

facilitate and allow for pollen and seed 

dispersal within and between stands of 

Berberis nevinii. Available data 

indicates that the genus Berberis is 

likely pollinated by generalist bee taxa. 

However, we do not have any 

information that suggests a certain 

quantity of habitat is necessary to 

maintain the pollinator species 

associated with B. nevinii. 

We delineated critical habitat unit 

boundaries in the following manner: 

(1) We identified all areas occupied 

by the species at the time of listing or 

currently occupied by Berberis nevinii 

using location data in the CNDDB 

(2007); 

(2) We classified each of these 

occurrences as to their origin (native or 

cultivated), status (extant or extirpated), 

number of plants, and evidence of 

reproduction, where possible; 

(3) We determined which occurrences 

contain the physical and biological 

features essential to the conservation of 

the species using the criteria described 

above; and 

(4) Using GIS, we overlaid the 

occurrences identified in number 3 

above on aerial imagery and compared 

the polygon locations for these 

occurrences with location information 

from field surveys to narrow and refine 

the location of B. nevinii occurrence 

polygons. Finally, using aerial 

photography, we removed areas that did 

not contain any of the PCEs for the 

species (e.g., aquatic habitat in Vail 

Lake). 

As described in the Summary of 

Changes from Proposed Rule section 

above, in the proposed rule we overlaid 

100 m (328 ft) square UTM grids over 

all essential habitat to delineate the 

proposed critical habitat boundaries and 

produce UTM coordinates. In this final 

rule we delineated critical habitat unit 

boundaries by screen-digitizing the 

habitat polygons that we determined 

contain the physical and biological 

features essential to the conservation of 

Berberis nevinii. The delineation of 

critical habitat boundaries through 

digitizing habitat polygons versus 

applying 328 ft (100 m) square grids 

over the areas we determined to be 

essential to the species reduced the total 

area from approximately 361 ac (146 

ha), which was an overestimate of the 

area of essential habitat, to 173 ac (70 

ha), which is the actual area we 

determined to be essential to the 

conservation of the species at the time 

of the proposed rule. 

When delineating proposed critical 

habitat, we also tried to remove areas 

from proposed subunits near Vail Lake 

that were identified as being under 

water, and therefore did not contain the 

physical and biological features (72 FR 

5562). We based subunit delineations in 

the proposed rule on USGS 1-meter 

resolution color-balanced, color infrared 

aerial photography acquired in May to 

June 2002 for the Vail Lake area, 

western Riverside County. For this final 

rule, we reevaluated proposed critical 

habitat subunits bordering Vail Lake 

based on updated aerial photographs 

and Vail Lake volume data provided by 

Rancho California Water District 

(RCWD) during the development of the 

economic analysis. We removed areas 

along the shoreline from subunits 1D 

(North of Vail Lake) and 1E (South of 

Vail Lake/Peninsula) that do not contain 

the physical and biological features 

required by Berberis nevinii and are not 

occupied by the species due to lakelevel fluctuations and recurrent, 

episodic inundation, sometimes for 

relatively long periods of time based on 

criteria discussed below. We published 

these revisions to proposed critical 

habitat and reopened the comment 

period in conjunction with the notice of 

availability for the DEA, published in 

the Federal Register on October 17, 

2007 (72 FR 58793). 

As discussed in the October 17, 2007 

(72 FR 58793) notice of availability, 

water levels at Vail Lake can fluctuate 

greatly, depending on the amount of 

local runoff reaching the lake, both 

within any given year and annually, 

frequently exceeding the 2002 water 

levels for relatively long periods of time. 

The RCWD, the entity that owns, 

operates, and manages Vail Dam and 

Vail Lake, has a surface water storage 

permit in the lake for up to 40,000 acrefeet (49,339 cubic-meters) from 

November 1 to April 30, annually. Thus, 

we revised proposed critical habitat 

boundaries for subunits bordering Vail 

Lake based on lake levels at RCWD’s 

permitted storage capacity. This 

process, coupled with the removal of 

the 100 m (328 ft) square grids, resulted 

in the removal of approximately 17 ac 

(7 ha) from proposed Subunit 1D and 

approximately 139 ac (56 ha) from 

proposed Subunit 1E, leaving 

approximately 5 ac (2 ha) and 

approximately 112 ac (45 ha) in 

proposed subunits 1D and 1E, 

respectively. 

Water volume in Vail Lake has been 

known to exceed 40,000 acre-feet 

(49,339 cubic-meters), even filling and 

surpassing lake storage capacity (50,000 

acre-feet (61,674 cubic-meters)) with 

water flowing over the spillway. The 

creation of Vail Lake in 1948 may have 

resulted in the loss of some Berberis 

nevinii individuals; however, the 

occurrences that are now located closest 

to Vail Lake have not been inundated or 

affected by rising water levels and 

fluctuations in the recent past (Boyd 

2007). Thus, the revisions to proposed 

critical habitat subunits 1D and 1E are 

not likely to result in B. nevinii 

individuals in this area falling outside 

the revised subunit boundaries. These 

revisions will, on the other hand, more 

accurately represent B. nevinii habitat in 

subunits 1D and 1E. 

We are designating critical habitat in 

areas that contain naturally occurring 

Berberis nevinii plants (i.e., not of 

cultivated origin or consisting of 

outplanted individuals). We have 

determined these areas were occupied at 

the time of listing and are the 

appropriate quantity and spatial 

arrangement of areas containing the 

PCEs to constitute the physical and 

biological features essential to the 

conservation of the species, which 

support the life history functions of the 

species. 

When determining the critical habitat 

boundaries for this final rule, we made 

every effort to avoid including 

developed areas, such as lands covered 


pwalker on PROD1PC71 with RULES2
8426 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

by buildings, pavement, and other 

structures, because such lands lack 

PCEs for Berberis nevinii. The scale of 

the maps we prepared under the 

parameters for publication within the 

Code of Federal Regulations may not 

reflect the exclusion of such developed 

lands. Any such lands inadvertently left 

inside critical habitat boundaries shown 

on the map of this critical habitat rule 

have been excluded by text in this final 

rule. Therefore, a Federal action 

involving these lands would not trigger 

section 7 consultation with respect to 

critical habitat and the requirement of 

no adverse modification, unless the 

specific action may affect adjacent 

critical habitat. 

Final Critical Habitat Designation 

We are designating one unit with two 

subunits as critical habitat for Berberis 

nevinii. The critical habitat areas 

identified below constitute our current 

best assessment of areas that meet the 

definition of critical habitat for B. 

nevinii. Table 1 outlines the area 

determined to meet the definition of 

critical habitat, including the areas 

excluded from the final critical habitat 

designation, and the two areas 

designated as final critical habitat for B. 

nevinii. A brief discussion of each area 

designated as critical habitat is provided 

in the unit descriptions below. 

Additional detailed documentation 

concerning the essential nature of these 

areas is contained in our supporting 

record for this rulemaking. 

TABLE 1.—AMOUNT OF LAND DETERMINED TO MEET THE DEFINITION OF CRITICAL HABITAT, AMOUNT OF LAND EXCLUDED

FROM THE FINAL CRITICAL HABITAT DESIGNATION, AND AMOUNT OF LAND DESIGNATED CRITICAL HABITAT FOR

Berberis nevinii 

[Area is displayed in acres (ac) (hectares (ha)), rounded to the nearest whole number. Numbers may not sum due to rounding] 

Critical habitat unit Land ownership 

by type 

Land meeting the 

definition of critical 

habitat 

Land excluded 

from critical 

habitat 

Critical habitat 

Unit 1. Agua Tibia/Vail Lake: 

1A. Big Oak Mountain Summit ............................................ BLM .................. 5 ac (2 ha) ................. 0 ac (0 ha) ........ 5 ac (2 ha) 

1B. Agua Tibia Mountain Foothills ...................................... USFS ................ 1 ac (1 ha) ................. 0 ac (0 ha) ........ 1 ac (1 ha) 

1C. South Flank Big Oak Mountain ..................................... Private .............. 39 ac (16 ha) ............. 39 ac (16 ha) .... 0 ac (0 ha) 

1D. North of Vail Lake ......................................................... Private .............. 5 ac (2 ha) ................. 5 ac (2 ha) ........ 0 ac (0 ha) 

1E. South of Vail Lake/Peninsula ........................................ Private .............. 112 ac (45 ha) ........... 112 ac (45 ha) .. 0 ac (0 ha) 

1F. Temecula Creek East .................................................... Private .............. 11 ac (4 ha) ............... 11 ac (4 ha) ...... 0 ac (0 ha) 

Total .............................................................................. ........................... 173 ac (70 ha) ........... 167 ac (67 ha) .. 6 ac (3 ha) 

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

authorizes us to issue permits for the 

take of listed animal species incidental 

to otherwise lawful activities. An 

incidental take permit application must 

be supported by a habitat conservation 

plan (HCP) that identifies conservation 

measures that the permittee agrees to 

implement for the covered species to 

minimize and mitigate the impacts of 

the requested incidental take. Often 

HCPs also incorporate conservation 

measures to benefit listed plant species, 

although take of plant species is not 

prohibited under the Act. We often 

exclude non-Federal public lands and 

private lands that are covered by an 

existing operative HCP and executed 

implementation agreement (IA) under 

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

designated critical habitat where we 

determine that the benefits of exclusion 

outweigh the benefits of inclusion as 

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

Based on such a determination, we are 

excluding the private lands covered 

under the Western Riverside County 

MSHCP from the final designation of 

critical habitat for Berberis nevinii (see 

the Relationship of Critical Habitat to 

Habitat Conservation Plan Lands—

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

Act section for a detailed discussion). 

Below, we present a brief description 

of the areas included in the final 

designation and reasons why these areas 

meet the definition of critical habitat for 

Berberis nevinii. 

Unit 1: Agua Tibia/Vail Lake 

Unit 1 comprises approximately 6 ac 

(3 ha) and is divided into two subunits: 

Big Oak Mountain Summit (1A) and 

Agua Tibia Mountain Foothills (1B). 

The lands in Unit 1 were occupied at 

the time of listing, contain the physical 

and biological features essential to the 

conservation of Berberis nevinii, and 

may be important for maintaining 

genetic diversity for the species as they 

include occurrences in ecologically 

unique areas. 

Subunit 1A: Big Oak Mountain Summit 

Subunit 1A consists of approximately 

5 ac (2 ha) of Federal land managed by 

the BLM on Big Oak Mountain to the 

north of Vail Lake in southern Riverside 

County. Two Berberis nevinii 

individuals of different sizes (ages) 

occur in this subunit on the summit of 

Big Oak Mountain at approximately 

2,700 ft (823 m) elevation (i.e., the lower 

edge of the marine layer) (PCE 1 and 3). 

One individual is an old plant that is 

covered in lichens, and the other 

individual is considerably smaller and 

at some distance to the northeast of the 

older plant. This location is considered 

unusual (i.e., ecologically unique) for 

the species in that it is at higher 

elevation and on relatively flat clay 

lenses consisting of heavy adobe/gabbro 

type soils with high water-holding 

capacity, derived from Mesozoic basic 

intrusive rock (PCE 2) (Soza 2003, 

unpaginated). Soils in this area are 

classified primarily as Auld clay, 8 to 15 

percent slopes, and Las Posas loam, 8 to 

15 percent slopes, eroded (PCE 2) 

(Service GIS data 2006). This occurrence 

is located in an open grassland area 

with chaparral nearby. Associated plant 

species include Chenopodium 

californicum, Avena fatua, 

Harpagonella palmeri, Plantago erecta, 

Convolvulus simulans, Galium 

porrigens, and Delphinium sp. 

We are designating this subunit as 

critical habitat even though it is 

occupied by only two Berberis nevinii 

plants because it represents an 

ecologically unique site for the species 

and contains the physical and biological 

features essential to the conservation of 

B. nevinii. Additionally, this site 

contains naturally occurring B. nevinii 

of different sizes (ages). Because this 

occurrence is on an ecologically unique 

site, this subunit may be important in 

terms of preserving genetic diversity 

throughout the range of the species. 

Berberis nevinii occupied this subunit at 

the time of listing (63 FR 54956; October 

13, 1998). 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8427 

Bureau of Land Management land on 

Big Oak Mountain consists of three 

small parcels totaling 888 ac (360 ha) 

surrounded by private land. The 

primary threats to Berberis nevinii 

habitat in this area are the indirect 

effects associated with urban and 

residential development on private 

lands adjacent to BLM lands, such as 

increased human recreation; incursion 

or spread of invasive, nonnative plants; 

and changes to the natural fire regime 

(i.e., increased ignitions and fire 

frequency, and shortened fire return 

intervals that can lead to type 

conversion of shrublands to annual 

grasslands). The BLM Resource 

Management Plan indicates that these 

parcels are closed to motorized vehicles 

and livestock grazing (BLM 1994, p. 28). 

However, special management 

considerations or protection for the 

physical and biological features may be 

needed to minimize disturbance to the 

vegetation and soils within this subunit; 

control invasive, nonnative plants; and 

maintain the natural hydrologic and fire 

regime of the area resulting from urban 

and residential development. 

Subunit 1B: Agua Tibia Mountain 

Foothills 

Subunit 1B consists of approximately 

1 ac (<1 ha) of federally-owned land 

managed by the USFS on the CNF near 

the Agua Tibia Wilderness Area in 

southern Riverside County, California. 

Five Berberis nevinii individuals are 

known from this area and are located at 

the edge of a stream channel (PCE 1) 

growing in association with coast live 

oak and riparian woodland species (PCE 

3). Nearby chaparral includes such 

species as Quercus berberidifolia, 

Adenostoma fasciculatum, and 

Haplopappus squarrosus, and nearby 

desert species include Yucca schidigera 

(CNDDB 2007). These B. nevinii plants 

are growing under a canopy of Quercus 

agrifolia and Platanus racemosa with 

the following species: Heteromeles 

arbutifolia, Q. berberidifolia, Elymus 

condensatus, Mimulus aurantiacus, 

Lonicera subspicata, Pterostegia 

drymarioides, and Epilobium canum. 

Soils in this area are classified as rough 

broken land and Visalia gravelly sandy 

loam, with 5 to 9 percent slopes (PCE 

2) (Service GIS data 2007). 

We are designating this subunit as 

critical habitat because it contains the 

physical and biological features 

essential to conservation of Berberis 

nevinii and it contains a relatively large 

natural occurrence of the species. 

Additionally, Service personnel visited 

this site in June 2006 while B. nevinii 

was in fruit and found that several of 

the fruits had three to four seeds, which 

may be significant for a species that 

appears to rarely set seed. Berberis 

nevinii occupied this subunit at the time 

of listing, as identified in the final 

listing rule (63 FR 54956, October 13, 

1998). 

The Berberis nevinii occurrence on 

the CNF is not as well protected as the 

occurrence on the ANF (USFS 2005, p. 

238). The primary threats to B. nevinii 

habitat in this area are human recreation 

(off-highway vehicle use, shooting); 

wildland fire, including an increased 

risk of fire ignition due to the proximity 

of State Highway 79 (USFS 2005, pp. 

232, 237); fuels and fire management 

activities (USFS 2005, p. 237); and 

invasive, nonnative plants, including 

potential short-term adverse effects 

associated with control efforts (USFS 

2005, p. 234). This occurrence on the 

CNF burned in 1996 and vigorously 

resprouted following the fire (USFS 

2005, p. 237). According to the USFS, 

this location has shown signs of 

disturbance from road activities, with 

unauthorized use of off-highway 

vehicles occurring close to, but not 

within, the area occupied by the species 

(USFS 2005, p. 235). Nonetheless, the 

magnitude of impacts associated with 

roads and recreational activity in this 

area appears to be low (USFS 2005, p. 

238). Also, the USFS does not anticipate 

substantial camping and hiking-related 

impacts to B. nevinii habitat, and 

intends to avoid or mitigate these 

impacts through implementation of 

Forest Plan standards (USFS 2005, p. 

234). 

The February 6, 2007, proposed rule 

(72 FR 5552) identified the proximity of 

Highway 79 as a potential threat to the 

Berberis nevinii occurrence and habitat 

on the CNF, in part due to proposed 

highway widening and realignment 

activities (72 FR 5565). However, we no 

longer anticipate that these activities 

will affect Subunit 1B as there currently 

are no plans for widening or realigning 

Highway 79 in the section of roadway 

closest to this subunit. The revised 

subunit is now more than 525 ft (160 m) 

south of the highway. As discussed in 

the Special Management Considerations 

or Protection section above, the 

presence of invasive, nonnative plants 

may impact the B. nevinii occurrence 

and habitat at this site. However, the 

CNF anticipates an eradication effort of 

the nonnative Arundo donax and other 

invasive grasses (USFS 2005) present in 

this subunit, which should minimize 

the impacts of this threat to the species 

and its habitat. 

One of the greatest threats to occupied 

habitat on the CNF and the physical and 

biological features contained therein is 

from wildland fire and the management 

of fire and fuels (i.e., fire suppression 

and prevention activities). This subunit 

is within the Wildland-Urban Interface 

(WUI) Defense Zone (USFS 2005, p. 237; 

Service 2005, p. 127). Some plants or 

habitat within the WUI Defense Zone 

could be removed or degraded under the 

Revised Land and Resource 

Management Plan due to fuel removal 

for fire protection or overly frequent fuel 

treatments (Service 2005, p. 127). 

Special management considerations or 

protection of the physical and biological 

features may be required to minimize 

disturbance to the vegetation and soils 

within this subunit; control invasive, 

nonnative plants; and maintain the 

natural fire regime of the area. 

Subunit 1C: South Flank Big Oak 

Mountain 

We are excluding this subunit from 

the final designation of critical habitat 

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

1). See the Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act section below for a 

discussion of this exclusion. 

Subunit 1D: North of Vail Lake 

We are excluding this subunit from 

the final designation of critical habitat 

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

1). See the Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act section below for a 

discussion of this exclusion. 

Subunit 1E: South of Vail Lake/ 

Peninsula 

We are excluding this subunit from 

the final designation of critical habitat 

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

1). See the Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act section below for a 

discussion of this exclusion. 

Subunit 1F: Temecula Creek East 

We are excluding this subunit from 

the final designation of critical habitat 

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

1). See the Relationship of Critical 

Habitat to Habitat Conservation Plan 

Lands—Exclusions Under Section 

4(b)(2) of the Act section below for a 

discussion of this exclusion. 

Effects of Critical Habitat Designation 

Section 7 Consultation 

Section 7(a)(2) of the Act requires 

Federal agencies, including the Service, 

to ensure that actions they fund, 

authorize, or carry out are not likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 


pwalker on PROD1PC71 with RULES2
8428 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

modify designated critical habitat. 

Decisions by the 5th and 9th Circuit 

Courts of Appeals have invalidated our 

definition of ‘‘destruction or adverse 

modification’’ (50 CFR 402.02) (see 

Gifford Pinchot Task Force v. U.S. Fish 

and Wildlife Service, 378 F. 3d 1059 

(9th Cir 2004) and Sierra Club v. U.S. 

Fish and Wildlife Service et al., 245 F.3d 

434, 442F (5th Cir 2001)), and we do not 

rely on this regulatory definition when 

analyzing whether an action is likely to 

destroy or adversely modify critical 

habitat. Under the statutory provisions 

of the Act, we determine destruction or 

adverse modification on the basis of 

whether, with implementation of the 

proposed Federal action, the affected 

critical habitat would remain functional 

to serve its intended conservation role 

for the species. 

Under section 7(a)(2) of the Act, if a 

Federal action may affect a listed 

species or its critical habitat, the 

responsible Federal agency (action 

agency) must enter into consultation 

with us. As a result of this consultation, 

we document compliance with the 

requirements of section 7(a)(2) through 

our issuance of: 

(1) A concurrence letter for Federal 

actions that may affect, but are not 

likely to adversely affect, listed species 

or critical habitat; or 

(2) A biological opinion for Federal 

actions that are likely to adversely affect 

listed species or critical habitat. 

When we issue a biological opinion 

concluding that a project is likely to 

jeopardize the continued existence of a 

listed species or destroy or adversely 

modify critical habitat, we also provide 

reasonable and prudent alternatives to 

the project, if any are identifiable. We 

define ‘‘Reasonable and prudent 

alternatives’’ 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, 

• Can be implemented consistent 

with the scope of the Federal agency’s 

legal authority and jurisdiction, 

• Are economically and 

technologically feasible, and 

• Would, in the Director’s opinion, 

avoid jeopardizing the continued 

existence of the listed species or 

destroying or adversely modifying 

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 we have 

listed a new species or subsequently 

designated critical habitat that may be 

affected and the Federal agency has 

retained discretionary involvement or 

control over the action (or the agency’s 

discretionary involvement or control is 

authorized by law). Consequently, 

Federal agencies may sometimes need to 

request reinitiation of consultation with 

us on actions for which formal 

consultation has been completed, if 

those actions with discretionary 

involvement or control may affect 

subsequently listed species or 

designated critical habitat. 

Federal activities that may affect 

Berberis nevinii or its designated critical 

habitat will require section 7(a)(2) 

consultation under the Act. Activities 

on State, Tribal, local or private lands 

requiring a Federal permit (such as a 

permit from the U.S. Army Corps of 

Engineers under section 404 of the 

Clean Water Act (33 U.S.C. 1251 et seq.) 

or a permit from us under section 

10(a)(1)(B) of the Act) or involving some 

other Federal action (such as funding 

from the Federal Highway 

Administration, Federal Aviation 

Administration, or the Federal 

Emergency Management Agency) are 

examples of agency actions that may be 

subject to the section 7(a)(2) 

consultation process. Federal actions 

not affecting listed species or critical 

habitat, and actions on State, Tribal, 

local or private lands that are not 

federally funded, authorized, or 

permitted, do not require section 7(a)(2) 

consultations. 

Application of the ‘‘Adverse 

Modification’’ Standard 

The key factor related to the adverse 

modification determination is whether, 

with implementation of the proposed 

Federal action, the affected critical 

habitat would continue to serve its 

intended conservation role for the 

species. Activities that may destroy or 

adversely modify critical habitat are 

those that alter the physical and 

biological features to an extent that 

appreciably reduces the conservation 

value of critical habitat for Berberis 

nevinii. Generally, the conservation role 

of B. nevinii critical habitat units is to 

support native occurrences of the 

species in the Vail Lake and Oak 

Mountain area, which in combination 

with occurrences on private land 

excluded from critical habitat 

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

Act, comprise the core viable natural 

population(s) of the species. 

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

to briefly evaluate and describe in any 

proposed or final regulation that 

designates critical habitat, activities 

involving a Federal action that may 

destroy or adversely modify such 

habitat, or that may be affected by such 

designation. 

Activities that, when carried out, 

funded, or authorized by a Federal 

agency, may affect critical habitat and 

therefore should result in consultation 

for Berberis nevinii include, but are not 

limited to (please see Special 

Management Considerations or 

Protection section for a more detailed 

discussion on the impacts of these 

actions to the listed species): 

(1) Activities that would directly or 

indirectly impact Berberis nevinii 

habitat and its physical and biological 

features. Such activities could include, 

but are not limited to: Residential or 

commercial development; fire 

prevention and suppression activities, 

such as the creation of fuel breaks and 

brush clearing or thinning; recreation 

management activities, including 

managing authorized recreation and 

restricting unauthorized recreation 

through placement of recreational 

trailheads, signs, barriers, maps, and/or 

facilities; off-road vehicle use; heavy 

recreational use; road development, 

maintenance, or improvement projects, 

such as road grading, widening, or 

realignment; flood control projects, such 

as vegetation stripping; and water 

storage projects that increase the period 

that habitat is inundated. These 

activities could change the physical and 

biological features of the habitat by: 

Affecting the topography of the site; 

physically removing or damaging soils 

and associated vegetation; altering the 

natural hydrology of the area; and by 

introducing and facilitating the spread 

of invasive, nonnative plant species. 

Additionally, actions to control or 

eradicate invasive, nonnative plants 

may cause temporary direct or indirect 

adverse impacts to B. nevinii habitat, 

although the ultimate outcome may be 

beneficial by removing species that 

compete with B. nevinii and contribute 

to high combustible fuel loads. 

(2) Activities that would alter fire 

frequency in areas occupied by Berberis 

nevinii. Such activities could include, 

but are not limited to, prescribed burns 

that are too frequent or poorly timed. 

These activities could reduce the ability 

of B. nevinii to grow and reproduce by 

altering soil and vegetation community 

structure and composition (e.g., type 

conversion of shrublands into 

grasslands). 

(3) Activities that would foster the 

introduction or spread of nonnative 

vegetation. These activities could 

include, but are not limited to: Seeding 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8429 

areas with nonnative species following 

a fire; planting nonnative species or 

using non-weed free hay straw for slope, 

bank, and soil erosion control; and 

ground-disturbing activities, such as 

recreation management projects and 

road maintenance, improvement, or 

construction projects. These activities 

could reduce the ability of Berberis 

nevinii to grow and reproduce because 

nonnative plant species may crowd out 

or otherwise compete with B. nevinii. 

Additionally, an increase in nonnative 

plants could change the fire regime by 

creating conditions prone to frequent 

fire (e.g., increased fuel loads and 

continuous fuel beds) and by altering 

soil composition. 

We consider all of the lands 

designated as critical habitat for Berberis 

nevinii to contain the physical and 

biological features essential to the 

conservation of the species. The two 

subunits designated as critical habitat 

are within the geographic range of the 

species, were occupied at the time of 

listing, and are currently occupied by B. 

nevinii. Federal agencies already consult 

with us on activities in areas occupied 

by B. nevinii that may affect the species 

to ensure that their actions do not 

jeopardize the continued existence of B. 

nevinii. 

Exclusions 

Application of Section 4(b)(2) of the Act 

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

the Secretary must designate or revise 

critical habitat on the basis of the best 

available scientific data after taking into 

consideration the economic impact, 

national security impact, and any other 

relevant impact of specifying any 

particular area as critical habitat. The 

Secretary may exclude an area from 

critical habitat if he determines that the 

benefits of such exclusion outweigh the 

benefits of specifying such area as part 

of the critical habitat, unless he 

determines, based on the best scientific 

data available, that the failure to 

designate such area as critical habitat 

will result in the extinction of the 

species. In making that determination, 

the legislative history is clear that the 

Secretary has broad discretion regarding 

which factor(s) to use and how much 

weight to give to any factor. In the 

following sections, we address a number 

of general issues that are relevant to the 

exclusions we have considered. 

Benefits of Designating Critical Habitat 

The process of designating critical 

habitat as described in the Act requires 

that the Service identify those lands on 

which are found the physical or 

biological features essential to the 

conservation of the species that may 

require special management 

considerations or protection, and those 

areas outside the geographical area 

occupied by the species at the time of 

listing that are essential to the 

conservation of the species. In 

identifying those lands, the Service 

must consider the recovery needs of the 

species, such that, on the basis of the 

best scientific and commercial data 

available at the time of designation, the 

habitat that is identified, if managed, 

could provide for the survival and 

recovery of the species. 

The identification of those areas that 

are essential for the conservation of the 

species and can, if managed, provide for 

the recovery of a species is beneficial. 

The process of proposing and finalizing 

a critical habitat rule provides the 

Service with the opportunity to 

determine the physical and biological 

features essential to the conservation of 

the species within the geographical area 

occupied by the species at the time of 

listing, as well as to determine other 

areas essential for the conservation of 

the species. The designation process 

includes peer review and public 

comment on the identified physical and 

biological features and essential areas. 

This process is valuable to land owners 

and managers in developing 

conservation management plans for 

identified areas, as well as any other 

occupied habitat or suitable habitat that 

may not have been included in the 

Service’s determination of essential 

habitat. 

The consultation provisions under 

section 7(a) of the Act constitute the 

regulatory benefits of critical habitat. As 

discussed above, Federal agencies must 

consult with us on discretionary actions 

that may affect critical habitat and must 

avoid destroying or adversely modifying 

critical habitat. Federal agencies must 

also consult with us on discretionary 

actions that may affect a listed species 

and refrain from undertaking actions 

that are likely to jeopardize the 

continued existence of such species. 

The analysis of effects to critical habitat 

is a separate and different analysis from 

that of the effects to the species. 

Therefore, the difference in outcomes of 

these two analyses represents the 

regulatory benefit of critical habitat. For 

some species, and in some locations, the 

outcome of these analyses will be 

similar, because effects on habitat will 

often result in effects on the species. 

However, the regulatory standard is 

different: The jeopardy analysis looks at 

the action’s impact on survival and 

recovery of the species, while the 

adverse modification analysis looks at 

the action’s effects on the designated 

habitat’s contribution to the species’

conservation. This will, in many 

instances, lead to different results and 

different regulatory requirements. Thus, 

critical habitat designations may 

provide greater regulatory benefits to the 

recovery of a species than would listing 

alone. 

There are two limitations to the 

regulatory effect of critical habitat. First, 

a section 7(a)(2) consultation is required 

only where there is a Federal nexus (an 

action authorized, funded, or carried out 

by any Federal agency)—if there is no 

Federal nexus, the critical habitat 

designation of private lands itself does 

not restrict any actions that destroy or 

adversely modify critical habitat. 

Second, the designation only limits 

destruction or adverse modification. By 

its nature, the prohibition on adverse 

modification is designed to ensure that 

the conservation role and function of 

those areas that contain the physical 

and biological features essential to the 

conservation of the species or of 

unoccupied areas that are essential for 

the conservation of the species are not 

appreciably reduced. Critical habitat 

designation alone, however, does not 

require property owners to undertake 

affirmative actions to promote the 

recovery of the species. 

Once an agency determines that 

consultation under section 7(a)(2) of the 

Act is necessary, the process may 

conclude informally when we concur in 

writing that the proposed Federal action 

is not likely to adversely affect critical 

habitat. However, if we determine 

through informal consultation that 

adverse impacts are likely to occur, then 

we would initiate formal consultation, 

which would conclude when we issue 

a biological opinion on whether the 

proposed Federal action is likely to 

result in destruction or adverse 

modification of critical habitat. 

For critical habitat, a biological 

opinion that concludes in a 

determination of no destruction or 

adverse modification may contain 

discretionary conservation 

recommendations to minimize adverse 

effects to the physical and biological 

features essential to the conservation of 

the species, but it would not suggest the 

implementation of any reasonable and 

prudent alternative. We suggest 

reasonable and prudent alternatives to 

the proposed Federal action only when 

our biological opinion results in an 

adverse modification conclusion. 

As stated above, the designation of 

critical habitat does not require that any 

management or recovery actions take 

place on the lands included in the 

designation. Even in cases where 

consultation has been initiated under 


pwalker on PROD1PC71 with RULES2
8430 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

section 7(a)(2) of the Act, the end result 

of consultation is to avoid jeopardy to 

the species and/or adverse modification 

of its critical habitat, but not necessarily 

to manage critical habitat or institute 

recovery actions on critical habitat. 

Conversely, voluntary conservation 

efforts implemented through 

management plans may institute 

proactive actions over the lands they 

encompass and are often put in place to 

remove or reduce known threats to a 

species or its habitat; therefore 

implementing recovery actions. We 

believe that in many instances the 

benefit to a species and/or its habitat 

realized through the designation of 

critical habitat is low when compared to 

the conservation benefit that can be 

achieved through conservation efforts or 

management plans. The conservation 

achieved through implementing HCPs 

or other habitat management plans can 

be greater than what we achieve through 

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

section 7(a)(2) consultations involving 

consideration of critical habitat. 

Management plans may commit 

resources to implement long-term 

management and protection to 

particular habitat for at least one and 

possibly additional listed or sensitive 

species. Section 7(a)(2) consultations 

commit Federal agencies to preventing 

adverse modification of critical habitat 

caused by the particular project only, 

and not to providing conservation or 

long-term benefits to areas not affected 

by the proposed project. Thus, 

implementation of any HCP or 

management plan that considers 

enhancement or recovery as the 

management standard may often 

provide as much or more benefit than a 

consultation for critical habitat 

designation. 

Another benefit of including lands in 

critical habitat is that designation of 

critical habitat serves to educate 

landowners, State and local 

governments, and the public regarding 

the potential conservation value of an 

area. This helps focus and promote 

conservation efforts by other parties by 

clearly delineating areas of high 

conservation value for the affected 

species. In general, critical habitat 

designation always has educational 

benefits; however, in some cases they 

may be redundant with other 

educational effects. For example, HCPs 

have significant public input and may 

largely duplicate the educational 

benefits of a critical habitat designation. 

Including lands in critical habitat also 

would inform State agencies and local 

governments about areas that could be 

conserved under State laws or local 

ordinances. 

Conservation Partnerships on NonFederal Lands 

Most federally listed species in the 

United States will not recover without 

the cooperation of non-Federal 

landowners. More than 60 percent of the 

United States is privately owned 

(National Wilderness Institute 1995), 

and at least 80 percent of endangered or 

threatened species occur either partially 

or solely on private lands (Crouse et al. 

2002, p. 720). Stein et al. (1995, p. 400) 

found that only about 12 percent of 

listed species were found almost 

exclusively on Federal lands (90 to 100 

percent of their known occurrences 

restricted to Federal lands) and that 50 

percent of federally listed species are 

not known to occur on Federal lands at 

all. 

Given the distribution of listed 

species with respect to land ownership, 

conservation of listed species in many 

parts of the United States is dependent 

upon working partnerships with a wide 

variety of entities and the voluntary 

cooperation of many non-Federal 

landowners (Wilcove and Chen 1998; 

Crouse et al. 2002; James 2002). 

Building partnerships and promoting 

voluntary cooperation of landowners are 

essential to our understanding the status 

of species on non-Federal lands, and 

necessary for us to implement recovery 

actions such as reintroducing listed 

species and restoring and protecting 

habitat. 

Many non-Federal landowners derive 

satisfaction from contributing to 

endangered species recovery. We 

promote these private-sector efforts 

through the Department of the Interior’s 

Cooperative Conservation philosophy. 

Conservation agreements with nonFederal landowners (HCPs, safe harbor 

agreements, other conservation 

agreements, easements, and State and 

local regulations) enhance species 

conservation by extending species 

protections beyond those available 

through section 7(a)(2) consultations. In 

the past decade, we have encouraged 

non-Federal landowners to enter into 

conservation agreements, based on the 

view that we can achieve greater species 

conservation on non-Federal land 

through such partnerships than we can 

through regulatory methods (61 FR 

63854; December 2, 1996). 

Many private landowners, however, 

are wary of the possible consequences of 

attracting endangered species to their 

property. Mounting evidence suggests 

that some regulatory actions by the 

Federal Government, while wellintentioned and required by law, can 

(under certain circumstances) have 

unintended negative consequences for 

the conservation of species on private 

lands (Wilcove et al. 1996; Bean 2002; 

Conner and Mathews 2002; James 2002; 

Koch 2002; Brook et al. 2003). Many 

landowners fear a decline in their 

property value due to real or perceived 

restrictions on land-use options where 

threatened or endangered species are 

found. Consequently, harboring 

endangered species is viewed by many 

landowners as a liability. This 

perception results in anti-conservation 

incentives, because maintaining habitats 

that harbor endangered species 

represents a risk to future economic 

opportunities (Main et al. 1999; Brook et 

al. 2003). 

According to some researchers, the 

designation of critical habitat on private 

lands significantly reduces the 

likelihood that landowners will support 

and carry out conservation actions 

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

al. 2003). The magnitude of this 

outcome is greatly amplified in 

situations where active management 

measures (such as reintroduction, fire 

management, control of invasive 

species) are necessary for species 

conservation (Bean 2002). We believe 

that the judicious exclusion of specific 

areas of non-federally owned lands from 

critical habitat designations can 

contribute to species recovery and 

provide a superior level of conservation. 

The purpose of designating critical 

habitat is to contribute to the 

conservation of threatened and 

endangered species and the ecosystems 

upon which they depend. The outcome 

of the designation, triggering regulatory 

requirements for actions funded, 

authorized, or carried out by Federal 

agencies under section 7(a)(2) of the 

Act, can sometimes be 

counterproductive to its intended 

purpose on non-Federal lands. Thus, the 

benefits of excluding areas that are 

covered by effective partnerships or 

other conservation commitments can 

often be high. 

Benefits of Excluding Lands With HCPs 

The benefits of excluding lands with 

approved HCPs from critical habitat 

designation include relieving 

landowners, communities, and counties 

of any additional regulatory burden that 

might be imposed by critical habitat. 

Many HCPs take years to develop, and 

upon completion, are consistent with 

recovery objectives for listed species 

that are covered within the plan area. 

Many conservation plans also provide 

conservation benefits to unlisted 

sensitive species. Imposing an 

additional regulatory review as a result 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8431 

of the designation of critical habitat may 

undermine conservation efforts and 

partnerships designed to proactively 

protect species to ensure that listing 

under the Act will not be necessary. Our 

experience in implementing the Act has 

found that designation of critical habitat 

within the boundaries of management 

plans that provide conservation 

measures for a species is a disincentive 

to many entities which are either 

currently developing such plans, or 

contemplating doing so in the future, 

because one of the incentives for 

undertaking conservation is greater ease 

of permitting where listed species will 

be affected. Addition of a new 

regulatory requirement would remove a 

significant incentive for undertaking the 

time and expense of management 

planning. In fact, designating critical 

habitat in areas covered by a pending 

HCP or conservation plan could result 

in the loss of some species’ benefits if 

participants abandon the planning 

process, in part because of the strength 

of the perceived additional regulatory 

compliance that such designation would 

entail. The time and cost of regulatory 

compliance for a critical habitat 

designation do not have to be quantified 

for them to be perceived as an 

additional Federal regulatory burden 

sufficient to discourage continued 

participation in developing plans 

targeting listed species’ conservation. 

A related benefit of excluding lands 

covered by approved HCPs from critical 

habitat designation is the unhindered, 

continued ability it gives us to seek new 

partnerships with future plan 

participants, including States, Counties, 

local jurisdictions, conservation 

organizations, and private landowners, 

which together can implement 

conservation actions that we would be 

unable to accomplish otherwise. We 

have found that potential participants 

are not inclined to participate in such 

management plans when we designate 

critical habitat within the area that 

would be covered by such a 

management plan, thus having a 

negative effect on our ability to establish 

new partnerships to develop these 

plans, particularly plans that address 

landscape-level conservation of species 

and habitats. By excluding these lands, 

we preserve our current partnerships 

and encourage additional conservation 

actions in the future. 

We also note that permit issuance in 

association with HCP applications 

require consultation under section 

7(a)(2) of the Act, which would include 

the review the effects of all HCP-covered 

activities that might adversely impact 

the species under a jeopardy standard, 

including possibly significant habitat 

modification (see definition of ‘‘harm’’

at 50 CFR 17.3), even without the 

critical habitat designation. In addition, 

all other Federal actions that may affect 

the listed species would still require 

consultation under section 7(a)(2) of the 

Act, and we would review these actions 

for possibly significant habitat 

modification in accordance with the 

definition of harm referenced above. 

The information provided in the 

previous section applies to all the 

following discussions of benefits of 

inclusion or exclusion of critical habitat. 

After considering the following areas 

under section 4(b)(2) of the Act, we are 

excluding approximately 167 ac (67 ha) 

of non-Federal lands from the Berberis 

nevinii critical habitat designation in 

subunits 1C, 1D, 1E, 1F that are within 

the Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) area. A detailed analysis of 

our exclusion of these lands under 

section 4(b)(2) of the Act is provided 

below. 

Areas Considered for Exclusion Under 

Section 4(b)(2) of the Act 

At the request of the USFS, we 

evaluated the appropriateness of 

excluding Forest Service lands from the 

final designation of critical habitat for 

Berberis nevinii under section 4(b)(2) of 

the Act based on management provided 

for federally listed species, including B. 

nevinii, under the USFS Land 

Management Plan and the Species 

Management Guide for B. nevinii. As 

discussed in more detail in our response 

to Comment 12 in the Public Comments 

section above, we have concluded that 

the exclusion of Forest Service lands in 

this instance does not outweigh the 

benefits of their designation. Therefore, 

as previously discussed, we are 

designating approximately 1 ac of Forest 

Service lands in subunit 1B as critical 

habitat for B. nevinii. 

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

Act 

When performing the required 

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

the existence of a management plan 

(HCPs as well as other types) that 

considers enhancement or recovery of 

listed species as its management 

standard is relevant to our weighing of 

the benefits of inclusion of a particular 

area in the critical habitat designation. 

The following factors are considered 

when we evaluate the management and 

protection provided by such plans: 

(1) Whether the plan is complete and 

provides for the conservation and 

protection of the physical and biological 

features essential to the conservation of 

the species; 

(2) Whether there is a reasonable 

expectation that the conservation 

management strategies and actions will 

be implemented for the foreseeable 

future, based on past practices, written 

guidance, or regulations; and 

(3) Whether the plan provides 

conservation strategies and measures 

consistent with currently accepted 

principles of conservation biology. 

As discussed in detail below, we 

believe that the Western Riverside 

County MSHCP provides for the 

conservation of Berberis nevinii and its 

physical and biological features. We 

have determined that the benefits of 

excluding essential habitat for B. nevinii 

covered by this plan, based on our 

partnership with private land owners 

and local, County, and State 

jurisdictions, whose commitment to 

benefiting the species is evident by the 

management mandated by the MSHCP, 

outweighs the benefit of including these 

lands in a critical habitat designation. 

Furthermore we have determined that 

exclusion of these lands will not result 

in the extinction of B. nevinii. 

Western Riverside County Multiple 

Species Habitat Conservation Plan 

(MSHCP) 

We are excluding from the final 

critical habitat designation for Berberis 

nevinii all non-Federal lands 

(approximately 167 ac (67 ha)) covered 

by the Western Riverside County 

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

The non-Federal lands that we are 

excluding include: Approximately 39 ac 

(16 ha) of private lands on the south 

flank of Big Oak Mountain (Subunit 1C); 

approximately 5 ac (2 ha) of private 

lands directly north of Vail Lake 

(Subunit 1D); approximately 112 ac (45 

ha) of private lands to the south of Vail 

Lake and on the Vail Lake peninsula, 

which is the area with the largest known 

occurrence of B. nevinii (Subunit 1E); 

and approximately 11 ac (4 ha) of 

private lands north of Temecula Creek 

and southeast of Vail Lake (Subunit 1F). 

The MSHCP is a large-scale, multijurisdictional HCP encompassing 1.26- 

million ac (510,000 ha) in Western 

Riverside County. The MSHCP 

addresses 146 listed and unlisted 

‘‘covered species,’’ including Berberis 

nevinii. Participants in the Western 

Riverside County MSHCP include 14 

cities in Western Riverside County; the 

County of Riverside, including the 

Riverside County Flood Control and 

Water Conservation Agency (County 

Flood Control), Riverside County 

Transportation Commission, Riverside 

County Parks and Open Space District, 

and Riverside County Waste 

Department; California Department of 


pwalker on PROD1PC71 with RULES2
8432 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

Parks and Recreation; and the California 

Department of Transportation (Caltrans). 

The Western Riverside County MSHCP 

was designed to establish a multispecies conservation program that 

minimizes and mitigates the expected 

loss of habitat and the incidental take of 

covered species. On June 22, 2004, the 

Service issued an incidental take permit 

(TE–088609–0) under section 10(a)(1)(B) 

of the Act to 22 permittees under the 

MSHCP for a period of 75 years. 

The Western Riverside County 

MSHCP will establish approximately 

153,000 ac (61,916 ha) of new 

conservation lands (Additional Reserve 

Lands) to complement the approximate 

347,000 ac (140,426 ha) of existing 

natural and open space areas designated 

by the MSHCP as Public-Quasi-Public 

(PQP) lands. These PQP lands include 

those under Federal ownership, 

primarily managed by the USFS and 

BLM, and also permittee-owned openspace areas (e.g., State Parks, County 

Flood Control, and County Park lands). 

In this final rule, we are designating as 

critical habitat Federally-owned PQP 

lands. Collectively, the Additional 

Reserve Lands and PQP lands form the 

overall MSHCP Conservation Area in 

which ‘‘covered species,’’ including 

Berberis nevinii, will be protected. The 

precise configuration of the 153,000 ac 

(61,916 ha) of Additional Reserve Lands 

is not mapped or precisely identified in 

the MSHCP, but rather is based on 

textual descriptions of a Conceptual 

Reserve Design within the bounds of a 

310,000 ac (125,453 ha) ‘‘Criteria Area’’

that is interpreted as implementation of 

the MSHCP proceeds. 

All private lands that we are 

excluding from the final critical habitat 

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

Act are within the MSHCP’s Criteria 

Area and are targeted for inclusion 

within the MSHCP Conservation Area as 

potential Additional Reserve Lands. In 

addition to the lands we have 

determined to be essential to the 

conservation of the species, 

conservation objectives in the MSHCP 

for Berberis nevinii provide for 

conservation and management of at least 

8,000 ac (3,238 ha) of suitable habitat 

(defined as chaparral and Riversidean 

alluvial fan sage scrub between 984 and 

2,162 ft (300 and 659 m) in elevation) 

in the Vail Lake area. As discussed in 

the Background section of the proposed 

rule (72 FR 5552; February 6, 2007), we 

were unable to accurately quantify the 

exact number of B. nevinii occurrences 

or plants within the MSHCP Plan Area 

(72 FR 5555). Nevertheless, all essential 

habitat within the MSHCP area are 

either within existing PQP lands or 

proposed Additional Reserve Lands. 

The goal of the MSHCP is to conserve 

all known locations of B. nevinii in the 

Agua Tibia/Vail Lake area and the 

Soboba Badlands, which includes all 

areas and features that we have 

determined to be essential to the 

conservation of the species (Dudek 

2002, p. 9–117, Table 9–2). 

Furthermore, all private lands that we 

are excluding from final critical habitat 

designation are within the MSHCP’s 

Survey Area and will receive 

conservation benefits under the 

Additional Survey Needs and 

Procedures policy. The MSHCP requires 

surveys for Berberis nevinii as part of 

the project review process for public 

and private projects where suitable 

habitat is present within a defined 

boundary of the Criteria Area (see 

Criteria Area Species Survey Area Map, 

Figure 6–2 of the MSHCP, Volume I). 

For locations with positive survey 

results, 90 percent of those portions of 

the property that provide long-term 

conservation value for the species will 

be avoided until it is demonstrated that 

the overall conservation objectives for 

the species have been met. Therefore, 

new occurrences that are found as a 

result of survey efforts and are 

subsequently determined to be 

important to the overall conservation of 

the species may be included in the 

Additional Reserve Lands. 

Numerous processes are incorporated 

into the MSHCP that allow for Service 

oversight of MSHCP implementation. 

These processes include: Annual 

reporting requirements; joint review of 

projects proposed within the Criteria 

Area; participation on the Reserve 

Management Oversight Committee; and 

a Reserve Assembly Accounting 

Process. The Reserve Assembly 

Accounting Process will be 

implemented to ensure that the 

conservation of lands occurs in rough 

proportionality to development, that 

lands are assembled in the configuration 

as generally described in the MSHCP, 

and that conservation goals and 

objectives are being achieved (Service 

2004, pp. 19–26). The Service is also 

responsible for reviewing 

Determinations of Biologically 

Equivalent or Superior Preservation that 

are proposed under the Protection of 

Species Associated with Riparian/ 

Riverine Areas and Vernal Pools policy 

and for reviewing minor amendment 

projects for consistency with the 

requirements of the MSHCP (Service 

2004, pp. 19–26). 

As stated in the final listing rule (63 

FR 54956, October 13, 1998), threats to 

the species and its habitat include urban 

development, off-road vehicle use, 

human recreation (e.g., horseback 

riding), highway projects, fire 

management strategies (suppression 

measures, brush clearing) that alter 

natural fire processes, and the 

introduction of invasive, nonnative 

plants that may compete with Berberis 

nevinii or contribute to combustible fuel 

loads (63 FR 54961). As described 

above, the MSHCP provides 

enhancement of habitat by removing or 

reducing threats to this species and the 

physical and biological features 

essential to the conservation of the 

species. This MSHCP preserves habitat 

that supports identified core 

populations of this species and, 

therefore, provides for recovery of this 

species. 

Benefits of Exclusion Outweigh the 

Benefits of Inclusion 

As discussed in the Benefits of 

Designating Critical Habitat section and 

in the Service Response to Comment 6 

above, we believe that the regulatory 

benefit of designating critical habitat on 

private lands covered by the Western 

Riverside County MSHCP would be low 

and may hinder the effective 

implementation of the plan. The 

Western Riverside County MSHCP 

addresses conservation issues from a 

coordinated, integrated perspective and 

will achieve better Berberis nevinii 

conservation than would be achieved 

through multiple site-by-site, project-byproject, section 7 consultations 

involving consideration of critical 

habitat. Furthermore, biological 

opinions for plants do not include an 

incidental take statement and, therefore, 

contain no mandatory reasonable and 

prudent measures issued to minimize 

the effect of any predicted loss of plants. 

Any measures taken to minimize effects 

to the plant species or its habitat are 

voluntary. The Western Riverside 

County MSHCP provides for the 

proactive monitoring and management 

of conserved lands (as previously 

described), reducing known threats to 

the B. nevinii and its habitat. 

Conservation and management of 

Berberis nevinii habitat is essential to 

the survival and recovery of this 

species. Such conservation needs are 

typically not addressed through the 

application of the statutory prohibition 

on adverse modification or destruction 

of critical habitat. The Western 

Riverside County MSHCP provides as 

much or more conservation benefit to 

the species than a consultation for 

critical habitat designation conducted 

under the standards required by the 

Ninth Circuit in the Gifford Pinchot 

decision. Furthermore, educational 

benefits that may be derived from a 

critical habitat designation are low in 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8433 

this case and largely redundant to the 

educational benefits achieved through 

the significant public, State, and local 

government input solicited and received 

during the development of the Western 

Riverside County MSHCP. 

We have developed close partnerships 

with the 22 MSHCP permittees through 

the development of this regional HCP 

that incorporates appropriate 

protections and management of the 

physical and biological features 

essential to the conservation of this 

species. Those protections are 

consistent with the mandates under 

section 7 of the Act to avoid adverse 

modification or destruction of critical 

habitat and go beyond that prohibition 

by including active management and 

protection of essential habitat areas. By 

excluding these lands from designation, 

we are eliminating a largely redundant 

layer of regulatory review for a limited 

set of projects on non-Federal lands that 

are addressed by the MSHCP, and we 

are helping to preserve our ongoing 

partnerships with the permittees and 

encouraging new partnerships with 

other landowners and jurisdictions. 

Those partnerships, and the landscape 

level, multiple-species conservation 

planning efforts they promote, are 

critical for the conservation of Berberis 

nevinii. Designating critical habitat on 

non-Federal lands within the Western 

Riverside County MSHCP could have a 

detrimental effect to our partnerships 

with the 22 MSHCP permittees and 

could be a significant disincentive to the 

establishment of future partnerships and 

HCPs with other partners. 

We have reviewed and evaluated the 

exclusion of 167 ac (67 ha) of nonFederal lands that meet the definition of 

critical habitat within the Western 

Riverside County MSHCP plan area 

from the designation of final critical 

habitat for Berberis nevinii and have 

determined that the benefits of 

excluding these lands in subunits 1C, 

1D, 1E, and 1F outweigh the benefits of 

including them. As discussed above, the 

MSHCP will provide for significant 

preservation and management of the 

physical and biological features 

essential to B. nevinii and will help 

reach the recovery goals for this species. 

Exclusion Will Not Result in Extinction 

of the Species 

In keeping with our analysis and 

conclusion detailed in our biological 

opinion for the Western Riverside 

County MSHCP (Service 2004, p. 334), 

we do not believe that the exclusion of 

non-Federal lands that meet the 

definition of critical habitat within the 

Western Riverside County MSHCP plan 

area from the final designation of 

critical habitat for Berberis nevinii will 

result in the extinction of the species. 

The MSHCP provides protection and 

management, in perpetuity, of lands 

within subunits 1C, 1D, 1E, and 1F, 

including the physical and biological 

features essential to the conservation of 

B. nevinii. In addition, the jeopardy 

standard of section 7 of the Act and 

routine implementation of conservation 

measures through the section 7 process 

also provide assurances that the species 

will not go extinct. 

Economic Analysis 

Section 4(b)(2)of the Act requires us 

to designate critical habitat on the basis 

of the best scientific information 

available and to consider economic and 

other relevant impacts of designating a 

particular area as critical habitat. 

Section 4(b)(2) of the Act allows the 

Secretary to exclude areas from critical 

habitat for economic reasons if the 

Secretary determines that the benefits of 

such exclusion exceed the benefits of 

designating the area as critical habitat. 

However, this exclusion cannot occur if 

it will result in the extinction of the 

species concerned. 

Following the publication of the 

proposed critical habitat designation, 

we conducted an economic analysis to 

estimate the potential economic effect of 

the designation. The draft analysis 

(dated September 4, 2007) was made 

available for public review between 

October 17, 2007 and November 16, 

2007 (72 FR 58793). We did not receive 

any public comments related to the draft 

economic analysis. A final analysis of 

the potential economic effects of the 

designation was developed taking into 

consideration any relevant new 

information. 

The primary purpose of the economic 

analysis is to estimate the potential 

economic impacts associated with the 

designation of critical habitat for 

Berberis nevinii. This information is 

intended to assist the Secretary in 

making decisions about whether the 

benefits of excluding particular areas 

from the designation outweigh the 

benefits of including those areas in the 

designation. This economic analysis 

considers the economic efficiency 

effects that may result from the 

designation, including habitat 

protections that may be co-extensive 

with the listing of the species. It also 

addresses distribution of impacts, 

including an assessment of the potential 

effects on small entities and the energy 

industry. This information can be used 

by the Secretary to assess whether the 

effects of the designation might unduly 

burden a particular group or economic 

sector. 

The economic analysis focuses on the 

direct and indirect costs of the rule. 

However, economic impacts to land use 

activities can exist in the absence of 

critical habitat. These impacts may 

result from, for example, section 7 

consultations under the jeopardy 

standard, local zoning laws, State and 

natural resource laws, and enforceable 

management plans and best 

management practices applied by other 

State and Federal agencies. 

Potential costs associated with 

invasive, nonnative plant species 

management, recreation management, 

fire management, and section 7 

consultations comprised all of the 

quantified impacts in the areas we are 

designating as critical habitat. The 

Federal government is expected to bear 

the entire cost of the anticipated upperbound future impacts, with the 

following anticipated split among 

agencies: BLM, 61 percent; USFS, 35 

percent; Service, 4 percent. Similarly, 

we anticipate that Subunit 1A (Big Oak 

Mountain Summit), which is managed 

by BLM, will account for the majority 

(62 percent) of the total upper-bound 

future conservation impacts. 

Potential costs associated with 

changes to the management of Vail Lake 

comprised the majority of the total 

quantified upper-bound future impacts 

in areas we are excluding from the 

designation of critical habitat under 

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

would have been borne entirely by 

Rancho California Water District 

(RCWD), the entity that manages Vail 

Lake, and is based on the scenario that 

RCWD would not be able to implement 

the preferred alternative (Hybrid 1 

Alternative) of their Regional Integrated 

Resources Plan, which calls for 

additional water storage in Vail Lake so 

as to cost-effectively meet the future 

municipal and agricultural demands of 

customers. Other impacts in areas 

excluded from the final designation of 

critical habitat were based on the costs 

of acquisition, management, biological 

monitoring, and administration of land 

to be acquired under the Western 

Riverside County MSHCP, or impacts 

associated with development 

opportunities on private land within the 

Plan Area for the MSHCP. 

We estimated potential economic 

effects of actions related to the 

conservation of Berberis nevinii under 

sections 4, 7, and 10 of the Act and 

those attributable to designating critical 

habitat to be approximately $169,000 to 

$172,000 in undiscounted dollars over 

the next 20 years in areas we are 

designating as final critical habitat 

(subunits 1A and 1B). Discounted future 

costs were estimated to be 


pwalker on PROD1PC71 with RULES2
8434 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

approximately $136,000 to $139,000 

($10,000 annualized) at a 3 percent 

discount rate or approximately $107,000 

to $110,000 ($11,000 annualized) at a 7 

percent discount rate for activities in 

subunits 1A and 1B. We estimated 

potential economic effects to be 

approximately $1.7 to $433.5 million in 

undiscounted dollars over the next 20 

years (or 40 years for impacts related to 

management of Vail Lake) in areas we 

are excluding from final critical habitat 

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

the Western Riverside County MSHCP 

(Subunits 1C through 1F). Discounted 

future costs were estimated at 

approximately $1.2 to $232.5 million at 

a 3 percent discount rate ($82,000 to 

$10.1 million annualized) or 

approximately $0.9 to $118.1 million at 

a 7 percent discount rate ($81,000 to 

$8.9 million annualized) for activities in 

subunits 1C, 1D, 1E, and 1F. The latter 

impacts would only occur if the areas 

we proposed for exclusion were instead 

designated as critical habitat for B. 

nevinii. Note that these cost estimates 

were based on revisions to the proposed 

designation of critical habitat subunits 

1B, 1D, and 1E as described in the 

notice of availability for the DEA 

published on October 17, 2007 (72 FR 

58793). 

The Service also completed a final 

economic analysis (FEA) of the 

designation of critical habitat for 

Berberis nevinii that updates the DEA by 

removing impacts that were not 

considered probable or likely to occur 

and by adding an estimate of the costs 

associated solely with the designations 

of critical habitat for B. nevinii 

(incremental impacts). The FEA 

estimates that the potential economic 

effects of actions relating to the 

conservation of B. nevinii, including 

costs associated with sections 4, 7, and 

10 of the Act, and including those 

attributable to the designation of critical 

habitat, will be $1.80 million 

(undiscounted) over the next 20 years. 

The present value of these impacts, 

applying a 3 percent discount rate, is 

$1.34 million; or $0.95 million, using a 

discount rate of 7 percent. This is a 

reduction from the impacts estimated in 

the DEA of about $0.15 million 

(undiscounted) over the next 20 years. 

The FEA also estimates total costs 

attributable solely to the designation of 

critical habitat for B. nevinii 

(incremental costs) to be $3,593 (present 

value at a three percent discount rate). 

When critical habitat for this species is 

designated, it is anticipated that the 

consultation with the USFS regarding 

their current Land Management Plan 

will be reinitiated, resulting in 

administrative impacts to the USFS. 

After consideration of the impacts under 

section 4(b)(2) of the Act, we have not 

excluded any areas from the final 

critical habitat designations based on 

the identified economic impacts. 

The final economic analysis is 

available at http://www.regulations.gov 

and http://www.fws.gov/carlsbad or 

upon request from the Carlsbad Fish 

and Wildlife Office (see ADDRESSES

section). 

Required Determinations 

Regulatory Planning and Review 

In accordance with Executive Order 

12866 (E.O. 12866), we evaluate four 

parameters in determining whether a 

rule is significant. If any one of the 

following four parameters are met, the 

Office of Management and Budget 

(OMB) will designate that rule as 

significant under E.O. 12866: 

(a) The rule would have an annual 

economic effect of $100 million or more 

or adversely affect an economic sector, 

productivity, jobs, the environment, or 

other units of the government; 

(b) The rule would create 

inconsistencies with other Federal 

agencies’ actions; 

(c) The rule would materially affect 

entitlements, grants, user fees, loan 

programs, or the rights and obligations 

of their recipients; or 

(d) The rule would raise novel legal 

or policy issues. If OMB requests to 

informally review a rule designating 

critical habitat for a species, we 

consider that rule to raise novel legal 

and policy issues. Because no other 

Federal agencies designate critical 

habitat, the designation of critical 

habitat will not create inconsistencies 

with other agencies’ actions. We use the 

economic analysis of the critical habitat 

designation to evaluate the potential 

effects related to the other parameters of 

E.O. 12866 and to make a determination 

as to whether the regulation may be 

significant under parameter (a) or (c) 

listed above. 

Based on the economic analysis of the 

critical habitat designation, we have 

determined that the designation of 

critical habitat for Berberis nevinii will 

not result in an annual effect on the 

economy of $100 million or more or 

affect the economy in a material way. 

Based on previous critical habitat 

designations and the economic analysis, 

we believe this rule will not materially 

affect entitlements, grants, user fees, 

loan programs, or the rights and 

obligations of their recipients. OMB has 

not requested to informally review this 

rule, and thus this action does not raise 

novel legal or policy issues. In 

accordance with the provisions of E.O. 

12866, this rule is not considered 

significant. 

Executive Order 12866 directs Federal 

agencies issuing regulations to evaluate 

regulatory alternatives (Office of 

Management and Budget, Circular A–4, 

September 17, 2003). Under Circular 

A–4, once an agency determines that the 

Federal regulatory action is appropriate, 

the agency must consider alternative 

regulatory approaches. Because the 

determination of critical habitat is a 

statutory requirement under the Act, we 

must evaluate alternative regulatory 

approaches, where feasible, when 

issuing a designation of critical habitat. 

In developing our designations of 

critical habitat, we consider economic 

impacts, impacts to national security, 

and other relevant impacts under 

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

discretion allowable under this 

provision, we may exclude any 

particular area from the designation of 

critical habitat providing that the 

benefits of such exclusion outweigh the 

benefits of specifying the area as critical 

habitat and that such exclusion would 

not result in the extinction of the 

species. We believe that the evaluation 

of the inclusion or exclusion of 

particular areas, or a combination of 

both, constitutes our regulatory 

alternative analysis for designations. 

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

et seq.) 

Under the Regulatory Flexibility Act 

(RFA; 5 U.S.C. 601 et seq., as amended 

by the Small Business Regulatory 

Enforcement Fairness Act (SBREFA) of 

1996), whenever an agency must 

publish a notice of rulemaking for any 

proposed or final rule, it must prepare 

and make available for public comment 

a regulatory flexibility analysis that 

describes the effects of the rule on small 

entities (small businesses, small 

organizations, and small government 

jurisdictions). However, no regulatory 

flexibility analysis is required if the 

head of the agency certifies the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. SBREFA amended 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. In 

this final rule, we are certifying that the 

critical habitat designation for Berberis 

nevinii will not have a significant 

economic impact on a substantial 

number of small entities. The following 

discussion explains our rationale. 

According to the Small Business 

Administration (SBA), small entities 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8435 

include small organizations, such as 

independent nonprofit organizations; 

small governmental jurisdictions, 

including school boards and city and 

town governments that serve fewer than 

50,000 residents; as well as small 

businesses. Small businesses include 

manufacturing and mining concerns 

with fewer than 500 employees, 

wholesale trade entities with fewer than 

100 employees, retail and service 

businesses with less than $5 million in 

annual sales, general and heavy 

construction businesses with less than 

$27.5 million in annual business, 

special trade contractors doing less than 

$11.5 million in annual business, and 

agricultural businesses with annual 

sales less than $750,000. To determine 

if potential economic impacts to these 

small entities are significant, we 

consider the types of activities that 

might trigger regulatory impacts under 

this rule, as well as the types of project 

modifications that may result. In 

general, the term ‘‘significant economic 

impact’’ is meant to apply to a typical 

small business firm’s business 

operations. 

To determine if the rule could 

significantly affect a substantial number 

of small entities, we consider the 

number of small entities affected within 

particular types of economic activities 

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

and gas production, timber harvesting). 

We apply the ‘‘substantial number’’ test 

individually to each industry to 

determine if certification is appropriate. 

However, the SBREFA does not 

explicitly define ‘‘substantial number’’

or ‘‘significant economic impact.’’

Consequently, to assess whether a 

‘‘substantial number’’ of small entities is 

affected by this designation, this 

analysis considers the relative number 

of small entities likely to be impacted in 

an area. In some circumstances, 

especially with critical habitat 

designations of limited extent, we may 

aggregate across all industries and 

consider whether the total number of 

small entities affected is substantial. In 

estimating the number of small entities 

potentially affected, we also consider 

whether their activities have any 

Federal involvement. 

Designation of critical habitat only 

affects activities conducted, funded, or 

permitted by Federal agencies. Some 

kinds of activities are unlikely to have 

any Federal involvement and so will not 

be affected by critical habitat 

designation. In areas where the species 

is present, Federal agencies already are 

required to consult with us under 

section 7 of the Act on activities they 

fund, permit, or implement that may 

affect Berberis nevinii (see Section 7 

Consultation section). Federal agencies 

also must consult with us if their 

activities may affect critical habitat. 

Designation of critical habitat, therefore, 

could result in an additional economic 

impact on small entities due to the 

requirement to reinitiate consultation 

for ongoing Federal activities (see 

Application of the ‘‘Adverse 

Modification’’ Standard section). 

The FEA examined the potential for 

Berberis nevinii conservation efforts to 

affect small entities. This analysis was 

based on the estimated impacts 

associated with the listing of B. nevinii 

and proposed critical habitat 

designation and evaluated the potential 

for economic impacts related to 

transportation projects; land 

development; management of Vail Lake; 

recreation; fire management; and 

invasive, nonnative plant species 

management. The FEA also estimated 

the costs associated solely with the 

designation of critical habitat for B. 

nevinii (incremental impacts). Overall, 

the FEA estimates that the potential 

economic effects of actions relating to 

the conservation of B. nevinii, including 

costs associated with sections 4, 7, and 

10 of the Act, and including those 

attributable to the designation of critical 

habitat, will be $1.80 million 

(undiscounted) over the next 20 years. 

The present value of these impacts, 

applying a 3 percent discount rate, is 

$1.34 million; or $0.95 million, using a 

discount rate of 7 percent. This is a 

reduction from the impacts estimated in 

the DEA of about $0.15 million 

(undiscounted) over the next 20 years. 

The FEA also estimates total costs 

attributable solely to the designation of 

critical habitat for B. nevinii 

(incremental costs) to be $3,593 (present 

value at a three percent discount rate). 

Impacts to small entities are not 

anticipated because the final 

designation of critical habitat for B. 

nevinii includes only Federal lands, and 

costs associated with modifications to 

activities will be borne entirely by the 

Federal government (USFS or BLM) as 

we do not anticipate any applicants 

would be involved in consultations 

regarding impacts to the designated 

critical habitat (please refer to section 

Appendix B of the FEA for a full 

discussion of potential economic 

impacts to small entities). 

Transportation projects that are 

reasonably foreseeable within the 20- 

year analysis period are not anticipated 

to impact areas within designated 

critical habitat and were not considered. 

In summary, we have considered 

whether this designation would result 

in a significant economic effect on a 

substantial number of small entities. 

The entire designated critical habitat is 

owned and managed by the Federal 

government, which is not considered a 

small business entity. Therefore, based 

on the above reasoning and currently 

available information, we certify that 

this rule will not have a significant 

economic impact on a substantial 

number of small entities. A regulatory 

flexibility analysis is not required. 

Small Business Regulatory Enforcement 

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

Under SBREFA, this rule is not a 

major rule. Our detailed assessment of 

the economic effects of this designation 

is described in the economic analysis. 

Based on the effects identified in the 

economic analysis, we believe that this 

rule will not have an annual effect on 

the economy of $100 million or more, 

will not cause a major increase in costs 

or prices for consumers, and will not 

have significant adverse effects on 

competition, employment, investment, 

productivity, innovation, or the ability 

of U.S.-based enterprises to compete 

with foreign-based enterprises. Refer to 

the final economic analysis for a 

discussion of the effects of this 

determination (see ADDRESSES for 

information on obtaining a copy of the 

final economic analysis). 

Executive Order 13211—Energy Supply, 

Distribution, or Use 

On May 18, 2001, the President issued 

an Executive Order (E.O. 13211; Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use) on regulations that 

significantly affect energy supply, 

distribution, and use. E.O. 13211 

requires agencies to prepare Statements 

of Energy Effects when undertaking 

certain actions. OMB has provided 

guidance for implementing this 

Executive Order that outlines nine 

outcomes that may constitute ‘‘a 

significant adverse effect’’ when 

compared without the regulatory action 

under consideration. The final 

economic analysis finds that none of 

these criteria are relevant to this 

analysis. Thus, based on information in 

the economic analysis, energy-related 

impacts associated with B. nevinii 

conservation activities within the final 

critical habitat designation are not 

expected. Therefore, this action is not a 

significant energy action, and no 

Statement of Energy Effects is required. 

Unfunded Mandates Reform Act 

In accordance with the Unfunded 

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

seq.), we make the following findings: 

(a) This rule will not produce a 

Federal mandate. In general, a Federal 


pwalker on PROD1PC71 with RULES2
8436 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

mandate is a provision in legislation, 

statute, or regulation that would impose 

an enforceable duty upon State, local, or 

Tribal governments, or the private 

sector, and includes both ‘‘Federal 

intergovernmental mandates’’ and 

‘‘Federal private sector mandates.’’

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

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

mandate’’ includes a regulation that 

‘‘would impose an enforceable duty 

upon State, local, or [T]ribal 

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 [T]ribal governments under 

entitlement authority,’’ if the provision 

would ‘‘increase the stringency of 

conditions of assistance’’ or ‘‘place caps 

upon, or otherwise decrease, the Federal 

Government’s responsibility to provide 

funding,’’ and the State, local, or Tribal 

governments ‘‘lack authority’’ to adjust 

accordingly. At the time of enactment, 

these entitlement programs were: 

Medicaid; AFDC work programs; Child 

Nutrition; Food Stamps; Social Services 

Block Grants; Vocational Rehabilitation 

State Grants; Foster Care, Adoption 

Assistance, and Independent Living; 

Family Support Welfare Services; and 

Child Support Enforcement. ‘‘Federal 

private sector mandate’’ includes a 

regulation that ‘‘would impose an 

enforceable duty upon the private 

sector, except (i) a condition of Federal 

assistance or (ii) a duty arising from 

participation in a voluntary Federal 

program.’’

The designation of critical habitat 

does not impose a legally binding duty 

on non-Federal Government entities or 

private parties. Under the Act, the only 

regulatory effect is that Federal agencies 

must ensure that their actions do not 

destroy or adversely modify critical 

habitat under section 7. While nonFederal entities 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 onto State 

governments. 

(b) We do not believe that this rule 

will significantly or uniquely affect 

small governments because it will not 

produce a Federal mandate of $100 

million or greater in any year, that is, it 

is not a ‘‘significant regulatory action’’

under the Unfunded Mandates Reform 

Act. Furthermore, all lands designated 

as critical habitat in this rule are 

managed by BLM and USFS, which are 

not considered small entities or small 

governments. The designation of critical 

habitat imposes no obligations on State 

or local governments. As such, a Small 

Government Agency Plan is not 

required. 

Takings 

In accordance with E.O. 12630 

(Government Actions and Interference 

with Constitutionally Protected Private 

Property Rights), we have analyzed the 

potential takings implications of 

designating approximately 6 ac (3 ha) of 

lands in Riverside County, California, as 

critical habitat for Berberis nevinii in a 

takings implications assessment. The 

takings implications assessment 

concludes that this final designation of 

critical habitat does not pose significant 

takings implications for lands within or 

affected by the designation. 

Federalism 

In accordance with E.O. 13132 

(Federalism), this final rule does not 

have significant Federalism effects. A 

Federalism assessment is not required. 

In keeping with Department of the 

Interior and Department of Commerce 

policy, we requested information from, 

and coordinated development of, this 

final critical habitat designation with 

appropriate State resource agencies in 

California. We received one comment 

from a local agency during the public 

comment period for the proposed 

critical habitat rule. This commenter 

supported the proposed exclusion of 

private lands within the boundaries of 

the Western Riverside County MSHCP 

plan area from the designation of final 

critical habitat, but was concerned that 

this area could still be included in the 

final designation if the Secretary 

determined that the benefits of 

including these lands outweigh the 

benefits of excluding them. We have 

determined that the benefits of 

excluding these private lands covered 

by the Western Riverside County 

MSHCP outweigh the benefits of 

designating critical habitat in these 

areas, and that this exclusion will not 

result in the extinction of Berberis 

nevinii; therefore, we have excluded all 

private lands from this final designation 

(please refer to the Public Comments 

section of this final rule for a detailed 

discussion of this comment and our 

response). 

The entire designated critical habitat 

is owned and managed by the Federal 

government and, therefore, is unlikely 

to have any incremental impact on State 

and local governments and their 

activities. The designation may have 

some benefit to these governments 

because the areas that contain the 

physical and biological features 

essential to the conservation of the 

species are more clearly defined, and 

the PCEs necessary to support the life 

processes of the species are specifically 

identified. This information does not 

alter where and what federally 

sponsored activities may occur. 

However, it may assist local 

governments in long-range planning 

(rather than having them wait for caseby-case section 7 consultations to 

occur). 

Civil Justice Reform 

In accordance with E.O. 12988 (Civil 

Justice Reform), the Office of the 

Solicitor has determined that the rule 

does not unduly burden the judicial 

system and that it meets the 

requirements of sections 3(a) and 3(b)(2) 

of the Order. We are designating critical 

habitat in accordance with the 

provisions of the Act. This final rule 

uses standard property descriptions and 

identifies the physical and biological 

features essential to the conservation of 

the species within the designated areas 

to assist the public in understanding the 

habitat needs of Berberis nevinii. 

Paperwork Reduction Act of 1995 

This rule does not contain any new 

collections of information that require 

approval by OMB under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 3501 

et seq.). 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 

jurisdiction of the Circuit Court of the 

United States for the Tenth Circuit, we 

do not need to prepare environmental 

analyses as defined by NEPA (42 U.S.C. 

4321 et seq.) in connection with 

designating critical habitat under the 

Act. We published a notice outlining 

our reasons for this determination in the 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8437 

Federal Register on October 25, 1983 

(48 FR 49244). This assertion was 

upheld by the Circuit Court of the 

United States for the Ninth Circuit 

(Douglas County v. Babbitt, 48 F.3d 

1495 (9th Cir. 1995), cert. denied 516 

U.S. 1042 (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), E.O. 13175, 

and the Department of the 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. In 

accordance with Secretarial Order 3206 

of June 5, 1997 (American Indian Tribal 

Rights, Federal Tribal Trust 

Responsibilities, and the Endangered 

Species Act), we readily acknowledge 

our responsibilities to work directly 

with Tribes in developing programs for 

healthy ecosystems, to acknowledge that 

Tribal lands are not subject to the same 

controls as Federal public lands, to 

remain sensitive to Indian culture, and 

to make information available to Tribes. 

We have determined that there are no 

Tribal lands that meet the definition of 

critical habitat for Berberis nevinii. 

Therefore, we have not designated 

critical habitat for B. nevinii on Tribal 

lands. 

References Cited 

A complete list of all references cited 

in this rulemaking is available on the 

Internet at http://www.regulations.gov 

and http://www.fws.gov/carlsbad/. 

Author(s) 

The primary authors of this 

rulemaking are staff of the Nevada Fish 

and Wildlife Office, Reno, Nevada, and 

the Carlsbad Fish and Wildlife Office, 

Carlsbad, California. 

List of Subjects in 50 CFR Part 17 

Endangered and threatened species, 

Exports, Imports, Reporting and 

recordkeeping requirements, 

Transportation. 

Regulation Promulgation 

Accordingly, we amend part 17, 

subchapter B of chapter I, title 50 of the 

Code of Federal Regulations, as set forth 

below: 

PART 17—[AMENDED] 

■ 1. The authority citation for part 17 

continues to read as follows: 

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

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

625, 100 Stat. 3500; unless otherwise noted. 

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

‘‘Berberis nevinii’’ under ‘‘FLOWERING 

PLANTS’’ in the List of Endangered and 

Threatened Plants to read as follows: 

§ 17.12 Endangered and threatened plants. 

* * * * * 

(h) * * * 

Species 

Historical range Family Status When 

listed 

Critical 

habitat 

Special 

rules Scientific name Common name 

FLOWERING PLANTS

* * * * * * * 

Berberis nevinii ............ Nevin’s barberry ......... U.S.A. (CA) ................ Berberidaceae ............ E ....... 648 17.96(a). 

* * * * * * * 

■ 3. Amend § 17.96(a) as follows: 

■ a. Add ‘‘Family Berberidaceae’’ in 

alphabetical order of the family names; 

and 

■ b. Add a critical habitat entry for 

‘‘Berberis nevinii (Nevin’s barberry)’’

under Family Berberidaceae to read as 

set forth below. 

§ 17.96 Critical habitat—plants. 

(a) Flowering plants. 

* * * * * 

Family Berberidaceae: Berberis 

nevinii (Nevin’s barberry) 

(1) Critical habitat is depicted for 

Riverside County, California, in the text 

and on the map below. 

(2) The primary constituent elements 

of critical habitat for Berberis nevinii are 

the habitat components that provide: 

(i) Low-gradient (i.e., nearly flat) 

canyon floors, washes and adjacent 

terraces, and mountain ridge/summits, 

or eroded, generally northeast to 

northwest-facing mountain slopes and 

banks of dry washes typically of less 

than 70 percent slope that provide space 

for plant establishment and growth; 

(ii) Well-drained alluvial soils 

primarily of non-marine sedimentary 

origin, such as Temecula or sandy 

arkose soils; soils of the CajalcoTemescal-Las Posas soil association 

formed on gabbro (igneous) or latite 

(volcanic) bedrock; metasedimentary 

substrates associated with springs or 

seeps; and heavy adobe/gabbro-type 

soils derived from metavolcanic geology 

(Mesozoic basic intrusive rock) that 

provide the appropriate nutrients and 

space for growth and reproduction; and 

(iii) Scrub (chaparral, coastal sage, 

alluvial, riparian) and woodland (oak, 

riparian) vegetation communities 

between 900 and 3,000 feet (275 and 

915 meters) in elevation that provide the 

appropriate cover for growth and 

reproduction. 

(3) Critical habitat does not include 

manmade structures (such as buildings, 

aqueducts, runways, roads, and other 

paved areas) and the land on which they 

are located existing within the legal 

boundaries on the effective date of this 

rule. 

(4) Critical habitat map. Data layers 

defining map units were created on a 

base of USGS 1:24,000 maps and critical 

habitat units were then mapped using a 

100-meter grid to establish Universal 

Transverse Mercator (UTM) North 

American Datum 1927 (NAD 27) 

coordinates which, when connected, 

provided the boundaries of the unit. All 

acreage calculations were performed 

using GIS. 

(5) Unit 1: Agua Tibia/Vail Lake Unit, 

Riverside County, California. 

(i) Subunit 1A: Big Oak Mountain 

Summit. From USGS 1:24,000 

quadrangle Sage, lands bounded by the 

following UTM NAD27 coordinates (E, 

N): 502153, 3708505; 502157, 3708510; 

502167, 3708519; 502179, 3708526; 

502192, 3708532; 502205, 3708534; 

502219, 3708535; 502233, 3708533; 

502246, 3708528; 502258, 3708522; 

502269, 3708513; 502278, 3708503; 

502286, 3708491; 502291, 3708478; 

502294, 3708465; 502294, 3708451; 

502292, 3708437; 502288, 3708424; 

502281, 3708412; 502272, 3708401; 

502262, 3708392; 502250, 3708384; 

502237, 3708379; 502224, 3708376; 

502210, 3708376; 502196, 3708378; 

502183, 3708382; 502171, 3708389; 


pwalker on PROD1PC71 with RULES2
8438 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

502160, 3708398; 502151, 3708408; 

502143, 3708420; 502138, 3708432; 

502135, 3708446; 502135, 3708460; 

502137, 3708474; 502141, 3708487; 

502148, 3708499; 502153, 3708505; 

thence returning to 502153, 3708505. 

(ii) Subunit 1B: Agua Tibia Mountain 

Foothills. From USGS 1:24,000 

quadrangle Vail Lake, lands bounded by 

the following UTM NAD27 coordinates 

(E, N): 504200, 3702900; 504300, 

3702900; 504300, 3702800; 504200, 

3702800; thence returning to 504200, 

3702900. 

(iii) Note: Map of Unit 1 follows: 


pwalker on PROD1PC71 with RULES2
Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 8439 


pwalker on PROD1PC71 with RULES2ER13FE08.000</GPH>
8440 Federal Register / Vol. 73, No. 30 / Wednesday, February 13, 2008 / Rules and Regulations 

BILLING CODE 4310–55–C 

* * * * * 

Dated: January 31, 2008. 

Lyle Laverty, 

Assistant Secretary for Fish and Wildlife and 

Parks. 

[FR Doc. 08–523 Filed 1–12–08; 8:45 am] 

BILLING CODE 4310–55–P 


pwalker on PROD1PC71 with RULES2