[Federal Register Volume 73, Number 166 (Tuesday, August 26, 2008)]
[Rules and Regulations]
[Pages 50454-50496]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-19194]



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Part III





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Acanthomintha ilicifolia (San Diego thornmint); Final Rule

Federal Register / Vol. 73, No. 166 / Tuesday, August 26, 2008 / Rules and Regulations

[[Page 50454]]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2007-0007; 92210-1117-0000-B4]
RIN 1018-AU86


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Acanthomintha ilicifolia (San Diego thornmint)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for Acanthomintha ilicifolia (San Diego 
thornmint) under the Endangered Species Act of 1973, as amended (Act). 
In total, approximately 671 acres (ac) (272 hectares (ha)) of land in 
San Diego County, California, fall within the boundaries of the 
critical habitat designation.

DATES: This rule becomes effective on September 25, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat are available on the Internet at http://www.regulations.gov. 
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 (see 
ADDRESSES); telephone 760-431-9440; facsimile 760-431-5901. 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 designation of critical habitat for Acanthomintha ilicifolia in 
this final rule. For more information on the taxonomy, biology, and 
ecology of A. ilicifolia, refer to the final listing rule published in 
the Federal Register on October 13, 1998 (63 FR 54938), and the 
proposed critical habitat rule published in the Federal Register on 
March 14, 2007 (72 FR 11946). We did not receive any new information 
pertaining to the species description, life history, distribution, 
ecology, or habitat of A. ilicifolia following the publication of the 
proposed designation of critical habitat for this species; therefore, 
please refer to the documents listed above for a complete detailed 
discussion of this species.
    Acanthomintha ilicifolia is an annual member of the mint family in 
the genus Acanthomintha. This plant ranges in height from 2 to 6 inches 
(in) (5 to 15 centimeters (cm)) and has white, two-lipped, tubular 
flowers with rose-colored markings on the lower lip (Jokerst 1993, p. 
713). Members of this genus have paired leaves and several sharp, spiny 
bracts (modified leaves) below whorled flowers. Acanthomintha 
ilicifolia can be distinguished from other members of the genus by its 
flower, which has hairless anthers and style.
    Acanthomintha ilicifolia usually occurs on heavy clay soils in open 
areas surrounded by shrubby vegetation. These openings are generally 
found within coastal sage scrub, chaparral, and native grassland of 
coastal San Diego County and south to San Telmo in northern Baja 
California, Mexico (Beauchamp 1986, p. 175; Reiser 2001, pp. 3-5). 
Acanthomintha ilicifolia is frequently associated with gabbro soils, 
which are derived from igneous rock, and gray calcareous clays derived 
from soft calcareous sandstone (Oberbauer and Vanderwier 1991, pp. 208-
209). This species is endemic to San Diego County, California, and 
northwestern Baja California, Mexico, and grows on open clay lenses 
described as friable, meaning that these soils have a loose, crumbly 
texture.

Previous Federal Actions

    On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for this species as well as four other plant species 
(Center for Biological Diversity v. Norton, C-04-3240 JL (N. D. Cal.)). 
In a settlement agreement dated December 21, 2004, we agreed to submit 
for publication in the Federal Register a proposed designation of 
critical habitat, if prudent and determinable, on or before February 
28, 2007, and a final determination by February 28, 2008. We published 
a proposed critical habitat designation for Acanthomintha ilicifolia in 
the Federal Register on March 14, 2007 (72 FR 11946). As part of that 
2007 proposed designation, we determined that it was prudent to 
designate critical habitat for this species (72 FR 11946; March 14, 
2007). We accepted public comments on the proposed designation for 60 
days, ending May 14, 2007.
    On November 27, 2007, we published a notice announcing the 
availability of the draft economic analysis (DEA) and reopening the 
public comment period on the proposed rule (72 FR 66122). This comment 
period closed on December 27, 2007. In light of new information 
received, we requested an extension of the due date of the final 
critical habitat rule. On April 16, 2008, the extension request was 
granted allowing us to open an additional comment period. On May 13, 
2008, we opened a third comment period on the DEA and the proposed 
rule. This comment period closed on June 12, 2008 (73 FR 27483). Please 
refer to the ``Previous Federal Actions'' section of the proposed 
critical habitat rule for Acanthomintha ilicifolia, which published in 
the Federal Register on March 14, 2007 (72 FR 11946), for a discussion 
of additional Federal actions that occurred prior to the proposed 
designation of critical habitat for this species. This final rule 
complies with the December 21, 2004, settlement agreement and April 16, 
2008, extension.

Summary of Comments and Recommendations

    We requested written comments from the public on the proposed 
designation of critical habitat for Acanthomintha ilicifolia in the 
proposed rule that published on March 14, 2007 (72 FR 11946), and in 
the notice of availability of the draft EA published in the Federal 
Register on November 27, 2007 (72 FR 66122). We received significant 
information during the second comment period; therefore, we opened a 
third comment period on the proposed rule and the draft EA. The third 
comment period opened on May 13, 2008, and closed June 12, 2008 (73 FR 
27483). We contacted appropriate Federal, State, and local agencies; 
scientific organizations; and other interested parties and invited them 
to comment on the proposed rule and the draft EA.
    During the comment period that opened on March 14, 2007, and closed 
on May 14, 2007, we received two comments directly addressing the 
proposed critical habitat designation. One comment was from a Federal 
agency and the other was from a non-governmental organization. During 
the second comment period open from November 27, 2007 to December 27, 
2007, we received four comment letters. Of these latter comments, one 
was from a Federal agency, one was from a local government, one was 
from a peer

[[Page 50455]]

reviewer, and one was from an organization. We did not receive any 
additional comments during the third comment period. All comments 
received were grouped into general issue categories relating to the 
proposed designation of critical habitat for Acanthomintha ilicifolia, 
and are addressed in the following summary and incorporated into this 
final rule as appropriate. We did not receive requests for a public 
hearing or comments on the draft EA.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from five knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region where the species occurs, and 
conservation biology principles. We received a response from one peer 
reviewer. The peer reviewer agreed with our characterization of the 
known physical and biological features for Acanthomintha ilicifolia.
    We reviewed all comments we received from the peer reviewer and the 
public for substantive issues and new information regarding critical 
habitat for Acanthomintha ilicifolia. The comments are addressed in the 
following summary.

Peer Reviewer Comments

    Comment 1: The peer reviewer concurred with our characterization of 
the known physical and biological features that are essential to the 
conservation of this species based on extensive research on 
Acanthomintha ilicifolia. Additionally, the peer reviewer highlighted 
several areas of interest that have not been studied at this time, but 
may provide more information on the physical and biological features 
essential for the survival of A. ilicifolia. The topics that the peer 
reviewer indicated require further research include population 
genetics, pollinator studies, and additional soil studies. The peer 
reviewer stated that additional population genetics studies of A. 
ilicifolia could show that some populations display greater genetic 
diversity, or that some genetic characters are contained in only one or 
two populations. Additionally, the peer reviewer indicated that studies 
are needed to determine habitat requirements for pollinators and to 
understand the effect that habitat fragmentation may have on A. 
ilicifolia.
    Our Response: We agree with the peer reviewer's assessment of 
information needs for Acanthomintha ilicifolia. We used the best 
available scientific and commercial data to designate critical habitat 
for this species. The peer reviewer's comments support the designation, 
and the peer reviewer did not identify any significant data that we did 
not consider. We look forward to working with stakeholders, 
researchers, and other organizations to study the important issues 
identified by the peer reviewer. The California Department of Fish and 
Game is funding a study on the pollinators of A. ilicifolia. This and 
other future projects will help us to better understand the 
conservation needs of this species.
    Comment 2: The peer reviewer applauded and reiterated the 
importance of our inclusion of newly discovered populations of 
Acanthomintha ilicifolia in the proposed critical habitat. The peer 
reviewer also commented that our criterion for population stability is 
reasonable and further tracking of population dynamics may help refine 
this criterion. The peer reviewer supported our inclusion of up to 500 
ft (152 m) of habitat adjacent to mapped occurrences where the habitat 
is contiguous with occupied habitat and supports the physical and 
biological features essential to the conservation of this species. The 
peer reviewer indicated these areas capture unmapped clay soil patches, 
minimize the effects of fragmentation, and help alleviate our lack of 
specific knowledge regarding pollinators for this species by minimizing 
the encroachment of irrigated areas that support nonnative insect fauna 
(which may compete with native insect pollinators or affect the 
hydrology that supports A. ilicifolia).
    Our Response: We appreciate the peer reviewer's positive evaluation 
of our criteria used to identify critical habitat.
    Comment 3: The peer reviewer commented that we should not exclude 
the area within the pending Encinitas subarea plan under the Multiple 
Habitat Conservation Plan (MHCP) as proposed. The peer reviewer 
indicated this plan has not progressed towards completion at a timely 
rate and that until a conservation plan has been developed, we should 
designate the area as critical habitat.
    Our Response: Following the publication of the proposed rule, we 
reevaluated the City of Encinitas' pending habitat conservation plan 
(HCP) subarea plan under the MHCP in San Diego County, California. We 
concluded that, at this time, the City of Encinitas' subarea plan is 
not complete and progress on the completion has slowed. However, the 
majority of subunit 1C is part of the Manchester Avenue Mitigation Bank 
and is actively managed for Acanthomintha ilicifolia (Spiegelberg 2005, 
p. 1-33). Preservation and management of the Manchester Avenue 
Mitigation Bank is independent of the completion of the City of 
Encinitas' subarea plan. We determined that the benefits of excluding 
the lands within the Manchester Avenue Mitigation Bank outweigh the 
benefits of including these lands in a critical habitat designation and 
that their exclusion will not result in extinction of this species. 
Therefore, we excluded 70 ac (28 ha) of subunit 1C under section 
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section of this final rule for a detailed discussion of this 
exclusion), and we designated the remaining 9 ac (4 ha) of private 
lands outside the Manchester Avenue Mitigation Bank as critical 
habitat.

Public Comments

    Comment 4: One commenter stated that at a minimum, all occupied 
habitat needs to be designated as critical habitat. The commenter 
stated the definitions of ``recovery'' and ``conservation'' are 
synonymous, and therefore, any critical habitat designation must 
include all areas the Service finds essential to the conservation 
(i.e., recovery) of the species. This commenter reiterated that 
Acanthomintha ilicifolia is widely scattered in a discontinuous 
distribution, and stated that this type of distribution can lead to a 
high level of within-species genetic diversity. The commenter stated 
that it is essential to conserve within-species diversity represented 
by occurrences on varying soil types as well as geographically distinct 
populations. The commenter stated that within-species diversity helps 
species preserve their ability to respond to diseases, climate change, 
pollution, and other current and future threats. The commenter 
concluded that in the face of uncertainty, designation of all occupied 
habitat, regardless of ownership, is legally necessary to conserve this 
species.
    Our Response: We agree with the commenter that the term 
conservation is defined in the Act as using all methods and procedures 
necessary to bring any listed species to the point at which the 
measures provided under the Act are no longer necessary (i.e., 
recovery). The provisions within section 4 of the Act require the 
Secretary to determine whether a species is endangered or threatened 
based on threats to the species, and therefore, recovery is linked to 
the alleviation of threats to the species.

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    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 capture all areas essential to the conservation 
of Acanthomintha ilicifolia as required by the Act. The areas 
delineated as critical habitat in this final rule: (1) Support 
populations that occur on rare or unique habitat within the species' 
range; (2) support the largest known populations of A. ilicifolia; and 
(3) support the most stable populations of A. ilicifolia. Further, this 
final designation identifies threats to the physical and biological 
features essential to the conservation of the species within each 
subunit and identifies special management considerations or protection 
needed to alleviate those threats and thereby will contribute to the 
recovery of A. ilicifolia. Although there is no recovery plan for this 
species, we believe that recovery for A. ilicifolia can be achieved 
through the implementation of conservation measures to protect the 
physical and biological features on the areas occupied by this species 
that meet the definition of critical habitat (see the ``Special 
Management Considerations or Protection'' section for details about the 
type of management needed for this species).
    The commenter stated that we need to include all occupied habitat 
in order to conserve the species' geographic and genetic diversity. 
Species and plant communities that are protected across their ranges 
are expected to have lower likelihoods of extinction (Soule and 
Simberloff 1986; Scott et al. 2001, pp. 1297-1300); our criteria 
identified multiple locations across the entire range of the species as 
essential habitat to prevent range collapse. Genetic variation in 
plants can result from the effects of population isolation and 
adaptation to locally distinct environments (Lesica and Allendorf 1995, 
pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt 1996, pp. 291-
295); and our criteria identified populations that occur on rare or 
unique habitat within the species' range in order to capture the range 
of plant communities, soil types, and environmental gradients in which 
Acanthomintha ilicifolia is found to preserve the genetic variation 
that may result from adaptation to local environmental conditions, as 
documented in other plant species (e.g., see Hamrick and Godt 1996, pp. 
299-301; Millar and Libby 1991, pp. 150, 152-155). Locations that 
possess unique ecological characteristics are those that represent the 
full range of environmental variability where A. ilicifolia have 
evolved, and, therefore, are likely to promote the adaptation of this 
species to different environmental conditions. We believe we captured 
the within-species diversity that the commenter is referring to by 
including areas that support populations on rare or unique habitat 
types, the largest known populations of A. ilicifolia, and the most 
stable populations of A. ilicifolia. At this time, no one has 
investigated the genetic structure of this species; however, if such 
genetic studies are conducted for this species in the future, we may 
revise this critical habitat designation if we determine that this 
final designation does not adequately represent the species' range of 
genetic diversity.
    Our designation relies on the best available scientific information 
to capture the geographic range of the species. The commenter did not 
specifically identify any geographically distinct populations that we 
did not capture in our designation. Our criteria do not capture 
populations where we had information indicating that the habitat had 
been lost to development and, therefore, the populations were likely 
extirpated. Furthermore, our criteria limited the designation to areas 
where we had data indicating the location of a known population and 
demographic or specific habitat data to assess its importance to the 
overall conservation of this species. As described above, our 
designation includes areas that support populations of Acanthomintha 
ilicifolia on rare or unique habitat types, the largest known 
populations of A. ilicifolia, and the most stable populations of A. 
ilicifolia, thereby capturing species' diversity. We determined that 
designating these areas, each of which was occupied at the time of 
listing and contains the physical and biological features essential to 
the conservation of A. ilicifolia fulfills the plant's biological needs 
and is adequate to conserve this species (for a more detailed 
discussion see the ``Criteria Used To Identify Critical Habitat'' 
section). We concluded that there are no areas outside the geographical 
area occupied by the species at the time of listing essential to the 
conservation of the species and, therefore, consistent with section 
3(5)(c) of the Act, we did not include the entire geographical area 
currently occupied by this species.
    We recognize that our designation does not encompass all known 
occurrences of this species; however, we believe that our criteria and 
the designation are adequate to provide for the conservation and 
recovery of this species throughout its extant range. Although there is 
no recovery plan for this species, we believe that recovery for A. 
ilicifolia can be achieved through the implementation of conservation 
measures to protect the physical and biological features in the areas 
occupied by this species that meet the definition of critical habitat 
(see the ``Special Management Considerations or Protection'' section 
for details about the type of management needed for this species).
    The commenter expressed concern that the proposed designation may 
not capture all areas necessary to allow Acanthomintha ilicifolia to 
respond to diseases, climate change, pollution, and other current and 
future threats. As stated above, the designation identifies all known 
threats to the physical and biological features essential to the 
conservation of the species in each individual subunit and identifies 
special management considerations or protection needed to alleviate 
those threats. We recognize these threats may change in the future; 
however, we base our critical habitat designations on the information 
available at the time of the designation and do not speculate as to 
what areas may be found essential if better information became 
available or what areas may become essential over time. The commenter 
did not include any specific data on future threats to the features 
essential to this species nor are we aware of any studies that include 
additional information that we did not consider. Should additional data 
become available concerning future threats, we may revise this critical 
habitat designation if it is determined that the designation did not 
capture an area essential to the conservation of the species based on 
the identification of additional threats.
    Comment 5: One commenter stated that the Act specifically allows 
critical habitat designations to include areas both within and outside 
the geographical area occupied by the species at the time it is listed 
as well as currently unoccupied habitat in order to capture all areas 
essential to the recovery of listed species. The commenter continued to 
state that the proposed designation of critical habitat

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for Acanthomintha ilicifolia fails to meet the government's legal 
requirements to promote recovery of A. ilicifolia.
    Our Response: We agree with the commenter that the Act does provide 
the flexibility to include areas within the designation that were not 
occupied at the time a species was listed (including currently 
unoccupied habitat) if those areas are determined to be essential to 
the conservation of the species. We evaluated all known occurrences of 
Acanthomintha ilicifolia for inclusion in our proposed critical habitat 
designation and identified two subunits in the proposed rule, 3E and 
4D, for inclusion in the designation that were not known to be occupied 
at the time the species was listed. We now consider subunits 3E and 4D 
to be occupied at the time of listing. Even though these occurrences 
were not discovered until after the species was listed in 1998, over 
1,000 plants were recorded at each of these sites when they were first 
discovered. We believe the large population size indicates that the 
occurrences were established for several years because the seeds of A. 
ilicifolia do not disperse in large numbers and any new population of 
A. ilicifolia would likely start out small and take several years to 
reach a population size greater than 1,000 plants. In our proposed 
rule, we did not identify any areas outside the geographical area 
occupied by A. ilicifolia as essential for the conservation of this 
species. As discussed in response to comment 4, we believe our proposed 
rule and this final designation of critical habitat meet the 
requirements of the Act and are consistent with 50 CFR 424.12(e). We 
are not designating any areas outside the geographical area occupied by 
this species as we believe this designation is adequate to ensure the 
conservation of the species.
    We recognize the designation of critical habitat may not include 
all habitat areas that may eventually be determined to be necessary for 
the species' recovery. Critical habitat designations do not signal that 
habitat outside the designation is unimportant or may not be required 
for recovery. Areas outside the critical habitat designation will 
continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act and regulatory protections afforded by the 
section 7(a)(2) jeopardy standard and the prohibitions of section 9 of 
the Act. Critical habitat designations based on the best available 
information at the time of designation will not control the direction 
and substance of future recovery plans, habitat conservation plans, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.
    Comment 6: One commenter stated that the proposed exclusions, which 
if finalized will exclude over 67 percent of occupied habitat, violate 
the principles of the Act, and are not legal because excluding areas 
from a critical habitat designation will not promote the recovery of 
this species as is required by the Act. The commenter noted that, 
because all the units identified in the proposed rule are described as 
requiring special management considerations to conserve the primary 
constituent elements, that all units must be designated.
    Our Response: Section 4(a)(3)(A) of the Act generally mandates that 
the Secretary designate any habitat which is considered to be critical 
habitat, as defined in section 3(5)(A), concurrently with listing and 
provides that such designations may be revised thereafter as 
appropriate. Section 4(b)(2) of the Act further requires that in making 
critical habitat designations, the Secretary take into account the 
economic impact, the impact on national security, and any other 
relevant impact of specifying any particular area as critical habitat. 
The Secretary may exclude any area from critical habitat if he 
determines that the benefits of exclusion outweigh the benefits of 
specifying such area as part of the critical habitat, unless he 
determines that the failure to designate such area as critical habitat 
will result in the extinction of the species concerned. Therefore, 
consistent with the Act, we must consider the relevant impacts of 
designation on those areas that are determined to meet the definition 
of critical habitat using the best scientific data available prior to 
finalizing a critical habitat designation.
    After determining all areas that meet the definition of critical 
habitat under section 3(5)(A) of the Act, we considered the economic 
impact, the impact on national security, and other relevant impacts of 
specifying any particular area as critical habitat. In this final 
designation, we recognize that designating critical habitat in areas 
where we have partnerships with landowners that have led to 
conservation and management of Acanthomintha ilicifolia on non-Federal 
lands has a relevant perceived impact to those landowners and a 
relevant impact to future partnership and conservation efforts on non-
Federal lands. Based on these relevant impacts, we evaluated the 
benefits of designating those particular areas as critical habitat 
against the benefits of excluding the areas from the designation, and 
we determined that the benefits of excluding a portion of subunits 1A 
and 1C and all of subunits 1B, 2A, 2B, 2C, 2D, 3A, 3B, 4A, 4B, 4C, and 
4D outweigh the benefits of including these areas in the final critical 
habitat designation and that the exclusion of these areas will not 
result in extinction of this species. Therefore, these exclusions are 
in full compliance with the Act. We also concluded that the 
conservation and management that will occur on the non-Federal lands we 
are excluding will contribute to the recovery of this species even 
though the Act does not require that areas excluded from a critical 
habitat designation contribute to recovery of a species, but rather 
that the benefits analysis demonstrate that the benefits of exclusion 
outweigh the benefits of inclusion and that the exclusion will not 
result in the extinction of the species. For a complete analysis and 
discussion of the exclusions, please refer to the ``Exclusions Under 
Section 4(b)(2) of the Act'' section below.
    Comment 7: One commenter specifically questioned the ability of the 
San Diego Multiple Habitat Conservation Program (MHCP) and the San 
Diego Multiple Species Conservation Program (MSCP) to prevent 
extinction of this species, therefore questioning our determination 
that excluding these areas would not lead to the extinction of 
Acanthomintha ilicifolia. The commenter stated that habitat 
conservation plans (HCPs), like the MHCP and MSCP, are often 
ineffective conservation vehicles. The commenter listed three studies 
and stated that the studies conclude that species covered by multiple-
species HCPs may be less likely to be recovered than those outside such 
HCPs. The commenter goes on to state that the MHCP and MSCP are in 
relatively early stages of implementation and are untested. The 
commenter states there are substantial questions as to whether these 
HCPs will provide sufficient habitat or species conservation for A. 
ilicifolia. The commenter stated that designating critical habitat in 
areas covered by the MHCP and MSCP would not undermine those HCPs and 
that the additional protection that a critical habitat designation 
provides would be especially beneficial if project proponents in those 
areas elect not to follow the guidelines set forth in the HCPs, 
suggesting that designating critical habitat would provide a useful and 
needed ``safety net.'' The commenter requested that we reconsider

[[Page 50458]]

our proposed exclusion of non-Federal lands covered by the MHCP and 
MSCP.
    Our Response: We reevaluated our proposed exclusions of non-Federal 
land covered by the MHCP and MSCP. Although the commenter grouped the 
two HCPs together, we evaluated the proposed exclusion of each HCP 
separately in relation to the comments.
    We reevaluated our proposed exclusion of non-Federal land covered 
by the MHCP under the approved Carlsbad Habitat Management Plan (HMP) 
and the draft Encinitas subarea plan. The MHCP is a framework plan that 
has been in place for 5 years and is structured to be implemented 
through the approval of individual, constituent subarea plans.
    The City of Carlsbad received an incidental take permit based on 
the Carlsbad HMP, an individual subarea plan under the MHCP framework 
plan on November 9, 2004. All 59 ac (24 ha) of land that meet the 
definition of critical habitat within the boundaries of the Carlsbad 
HMP are already conserved under the Carlsbad HMP. In addition to the 
two areas that we proposed as critical habitat in the Carlsbad HMP, 
there are other populations of A. ilicifolia that are conserved under 
the subarea plan. Not all areas placed in conservation are actively 
managed under the plan at this time; however, we believe the Carlsbad 
HMP conserves A. ilicifolia within its boundaries. According to the 
Service's biological opinion for the Carlsbad HMP, coverage of 
Acanthomintha ilicifolia under this plan is contingent upon compliance 
with the conservation measures outlined in the HMP (i.e., a funded 
management plan in place) and the completion of the San Marcos subarea 
plan under the MHCP. However, we did not identify any lands in San 
Marcos that meet the definition of critical habitat as described in the 
``Criteria Used to Identify Critical Habitat'' section. As a result, we 
analyzed the exclusion of subunits 1A and 1B in more detail and 
concluded that exclusion is appropriate because the essential habitat 
under the Carlsbad HMP is conserved. Management plans were developed 
and are being implemented for conserved lands in both of these 
subunits, although some management differs between these two areas 
because these management plans were developed over different periods of 
time (i.e., the management plan for subunit 1A was developed after the 
Carlsbad HMP was completed, whereas the management plan for lands 
within subunit 1B was developed prior to development of the Carlsbad 
HMP). Regardless, conservation and management of A. ilicifolia in these 
subunits is occurring and we believe it is contributing to the 
conservation of the species.Overall, the extent of habitat preservation 
and management that has taken place through implementation of the 
Carlsbad HMP since it was permitted in 2004 is significant, and 
demonstrates the City of Carlsbad's commitment to fully implement this 
HCP.
    A detailed accounting of preservation, conservation, and management 
requirements of the Carlsbad HMP can be found in the ``Exclusions Under 
Section 4(b)(2) of the Act'' section. The comprehensive framework of 
the subarea plan and area-specific management plans developed as areas 
are preserved under the subarea plan contain requirements to conserve 
and adaptively manage Acanthomintha ilicifolia habitats and provide for 
the conservation of this species' primary constituent elements (PCEs), 
thereby contributing to the recovery of this species. The Carlsbad HMP 
provides for management and monitoring for A. ilicifolia at several 
sites, including habitat in subunit 1A that is currently actively 
managed by the Center for Natural Lands Management. Activities that 
benefit A. ilicifolia in subunit 1A include mapping and census 
projects, removal of nonnative invasive species, and the restoration of 
areas degraded by past human use (Tierra Data, Inc. 2005, p. 34-63; 
Carlsbad HMP 2004, p. D-97). Land in subunit 1B was permanently 
preserved prior to the creation of the HMP. Management of the conserved 
land in subunit 1B is the responsibility of the homeowners' 
associations who own the open space in this subunit. These lands are 
signed and fenced and considered part of Carlsbad's habitat preserve.
    The Encinitas subarea plan under the MHCP is not complete, and 
significant progress has not occurred towards its completion. 
Therefore, we are not excluding from the final designation essential 
habitat within the draft Encinitas subarea plan.
    We also reevaluated our proposed exclusion of non-Federal land 
covered by approved subarea plans under the MSCP. The MSCP is a 
framework plan that has been in place for 10 years. Both the City and 
the County of San Diego received incidental take permits for their 
individual subarea plans under the MSCP framework plan. Approximately 
948 ac (383 ha) of land that meet the definition of critical habitat 
are within the City and County subarea plan boundaries under the MSCP. 
The MSCP subarea plans provide for the conservation of Acanthomintha 
ilicifolia through the establishment of preserve lands within the 
Multi-Habitat Planning Area (MHPA) (City) and Pre-Approved Mitigation 
Areas (PAMA) (County). In 10 years of implementing the subarea plans, 
approximately 787 ac (319 ha), or 83 percent, of lands that meet the 
definition of critical habitat are conserved. Although some areas 
placed in conservation are not yet fully managed under the plans, we 
believe the subarea plans under the MSCP will conserve essential 
habitat of A. ilicifolia within the subarea plan boundaries. The extent 
of habitat preservation and management that has taken place through 
implementation of the MSCP subarea plans is significant, and 
demonstrates the City's and County's commitments to fully implement 
their subarea plans.
    The commenter indicated concern that species may more likely 
recover outside of HCPs and questioned the habitat and species 
conservation provided by the MSCP for Acanthomintha ilicifolia. The 
subarea plans under the MSCP contain requirements to monitor and 
adaptively manage A. ilicifolia habitats and provide for the 
conservation of this species' PCE. The framework and area-specific 
management plans required under the subarea plans are comprehensive and 
address a broad range of management needs at the preserve and species 
levels that are intended to reduce the threats to covered species and 
thereby contribute to the recovery of the species. These plans include 
the following: (1) Fire management; (2) public access control; (3) 
fencing and gates; (4) ranger patrol; (5) trail maintenance; (6) 
visitor/interpretive and volunteer services; (7) hydrological 
management; (8) signage and lighting; (9) trash and litter removal; 
(10) access road maintenance; (11) enforcement of property and/or 
homeowner requirements; (12) removal of invasive species; (13) 
nonnative predator control; (14) species monitoring; (15) habitat 
restoration; (16) management for diverse age classes of covered 
species; (17) use of herbicides and rodenticides; (18) biological 
surveys; (19) research; and (20) species management conditions (MSCP 
1998).
    Eight major populations of Acanthomintha ilicifolia are included 
within preserve lands under the approved MSCP subarea plans, each of 
which will be conserved from 80 to 100 percent, with 85 percent overall 
coverage. A detailed accounting of preservation, conservation, and 
management requirements can be found in the ``Exclusions Under Section 
4(b)(2) of the Act'' section. In sum, all but 89 ac (36 ha) of the 
total 948 ac (383 ha)

[[Page 50459]]

of lands that meet the definition of critical habitat within the MSCP 
plan area are conserved or otherwise assured of conservation. 
Consistent with the narrow endemics requirements of the MSCP, the 
remaining 89 ac (36 ha) will be surveyed for A. ilicifolia prior to any 
development occurring on these lands. Under the City of San Diego's 
subarea plan, impacts to narrow endemic plants, including A. 
ilicifolia, inside the MHPA will be avoided and outside the MHPA will 
be protected by: (1) Avoidance; (2) management; (3) enhancement; and/or 
(4) transplantation to areas identified for preservation (City of San 
Diego 1997, p. 105-106; Service 1997, p. 15). Under the County of San 
Diego's subarea plan, narrow endemic plants, including A. ilicifolia, 
will be conserved under the Biological Mitigation Ordinance using a 
process that: (1) Requires avoidance to the maximum extent feasible; 
(2) allows for a maximum 20 percent encroachment into a population if 
total avoidance is not feasible; and (3) requires mitigation at the 1:1 
to 3:1 (in kind) for impacts if avoidance and minimization of impacts 
would result in no reasonable use of the property (County of San Diego 
(BMO) 1997, p. 11; Service 1998, p. 12). These measures will ameliorate 
any habitat loss within the 89 ac (36 ha) of lands that are not 
currently preserved or otherwise assured of conservation under the 
MSCP, by requiring in situ conservation or mitigation of impacts to A. 
ilicifolia and its habitat. Although some losses may occur to this 
species, the preservation, conservation, and management of A. 
ilicifolia required under the City and County MSCP subarea plans 
ensures the long-term conservation of this species and its habitat 
within the plan areas.
    We evaluated the relevant impacts of designating critical habitat 
within areas covered by the City and County MSCP subarea plans and 
determined that the benefits of excluding non-Federal lands covered by 
the MSCP outweigh the benefits of specifying those areas as critical 
habitat and determined that excluding these lands will not lead to the 
extinction of Acanthomintha ilicifolia. Therefore, we excluded all non-
Federal lands covered by the City and County subarea plans under the 
MSCP from this final designation (please see ``Exclusions Under Section 
4(b)(2) of the Act'' section below for a detailed analysis).
    The commenter also expressed concern that HCPs are ineffective 
conservation vehicles. We respectfully disagree. Numerous processes are 
incorporated into HCPs that provide for Service oversight of 
implementation to ensure compliance with the provisions to protect 
Acanthomintha ilicifolia. For example, the MSCP imposes annual 
reporting requirements and provides for Service review and approval of 
proposed subarea plan amendments and preserve boundary adjustments and 
for Service review and comment on projects during the California 
Environmental Quality Act review process. The Service also chairs the 
MSCP Habitat Management Technical Committee and the Monitoring 
Subcommittee (MSCP 1998, p. 5-11--5-23). The Carlsbad HMP also 
incorporates many processes to ensure the Service an active role in 
implementation of the HCP. For example, Habitat Management Plans, 
reviewed and approved by the Service, must be developed for each 
preserve area within the Carlsbad HMP, and monitoring and management 
objectives must be established for each preserve. Progress towards 
meeting these objectives is measured through the submission of annual 
reports. There are also regular coordination meetings between the 
Service and the City of Carlsbad to discuss on-going conservation 
issues. Both the MSCP subarea plans and the Carlsbad HMP must account 
annually for the progress they are making in assembling conservation 
areas. The Service must receive annual reports that include, both by 
project and cumulatively, the habitat acreage destroyed and conserved 
within the HCPs. This accounting process ensures that habitat 
conservation proceeds in rough proportion to habitat loss and in 
compliance with the MSCP subarea plans and, the Carlsbad HMP, and the 
plans' associated implementing agreements.
    The commenter did not provide copies of the citations that they 
stated conclude that multi-species HCPs are not likely to contribute to 
the recovery of listed species, nor did the commenter identify any 
examples of projects that may not comply with the Carlsbad HMP or the 
City and County MSCP subarea plans by impacting Acanthomintha 
ilicifolia. In light of our summary above, we continue to believe that 
implementation of the Carlsbad HMP and the City and County MSCP subarea 
plans will benefit A. ilicifolia recovery, and we believe there is 
adequate oversight of these plans to ensure compliance.
    Comment 8: One commenter supported our exclusion of lands covered 
by the MSCP and requested that we exclude proposed critical habitat 
areas within the pending North County MHCP in San Diego County. The 
commenter stated that the designation of critical habitat in these 
areas may have a negative effect on entities pursuing the MHCP and 
deter the completion of the plan.
    Our Response: At this time, the HCP for northern San Diego County 
(North County MHCP) is being developed and a draft plan is not 
available for public review. We understand the commenters' concern that 
a designation of critical habitat in areas that may be addressed in the 
future by the North County MHCP may have a negative effect on entities 
pursuing the HCP and deter its completion. This concern is consistent 
with our discussion of conservation partnerships in the ``Exclusions 
Under Section 4(b)(2) of the Act'' section of this final rule. However, 
we also recognize that there is a regulatory and recovery benefit to 
designating critical habitat in areas that are not protected through 
existing management or conservation plans. Exclusions under section 
4(b)(2) of the Act must be considered on a case-by-case basis. Because 
a draft of the northern San Diego County MHCP has not been released for 
public comment or formally evaluated by the Service, it is not clear 
that this framework plan will adequately address the conservation and 
recovery needs of Acanthomintha ilicifolia. Nor is it clear which areas 
will actively develop subarea plans under the North County MHCP. 
Therefore, we cannot presently determine that the regulatory and 
recovery benefits of a critical habitat designation in these areas 
would be minimized by the measures provided under this future plan. 
Therefore, we did not exclude lands that may be covered under this plan 
from critical habitat (the portion of subunit 1A owned by the County of 
San Diego). However, if this designation is revised in the future, we 
will re-evaluate for potential exclusion areas conserved under the 
plan. In the meantime, we are committed to continue working with all 
partners to the North County MHCP to minimize any additional regulatory 
burden attributable to this critical habitat designation.
    Comment 9: One commenter questioned discussion in the proposed rule 
concerning critical habitat designations and public perceptions, 
stating that we did not present any empirical or quantitative evidence 
to support our claim that landowners fear a decline in property value 
due to real or perceived restrictions on land-use options and that 
participants in pending HCPs or other conservation plans may abandon 
the planning process in part due to perceived additional regulatory 
compliance with a critical habitat designation. The commenter noted 
that the MSCP and MHCP and their

[[Page 50460]]

respective subarea plans were presumably approved only after a public 
education program that would have explained the consequences of having 
listed species on private property. The commenter further stated that 
if the MSCP and MHCP function as promised by the proposed rule, 
critical habitat designation should create few or no additional burdens 
for permittees and finally that the Service inappropriately considers 
an exclusion as an ``either-or'' situation with regard to HCP 
implementation. The commenter stated that critical habitat and habitat 
conservation plans can coexist.
    Our Response: The proposed designation cites several studies that 
have examined the issue of conservation of threatened and endangered 
species on private lands to support our discussion of the impacts to 
non-Federal landowners (Wilcove et al. 1996; Bean 2002; Conner and 
Mathews 2002; James 2002; Koch 2002; Brook et al. 2003). As discussed 
in detail in the ``Conservation Partnerships on Non-Federal Lands'' 
section below, at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Although many non-Federal landowners derive satisfaction from 
contributing to listed species recovery, many private landowners 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 well-intentioned and required by law, 
can (under certain circumstances) have unintended negative consequences 
for the conservation of species on private lands (Wilcove et al. 1996; 
Bean 2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found (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). Such voluntary conservation actions may be 
particularly important for listed plant species that are not subject to 
the take prohibition under section 9 of the Act or the incidental take 
permitting requirements of section 10(a)(1)(B) of the Act. For this 
reason, we actively encourage participants developing HCPs under 
section 10 of the Act to include measures that address the conservation 
of listed plant species in their plans even though such measures are 
not required. Designating critical habitat for plant species on lands 
voluntarily protected in an HCP or other conservation management plan 
could undermine our efforts. Therefore, we believe the judicious use of 
excluding specific areas of non-federally owned lands from critical 
habitat designations can contribute to species recovery and provide a 
superior level of conservation than critical habitat alone.
    Furthermore, our proposed critical habitat designations often draw 
significant public comment on the real and perceived impacts of the 
designation to Federal and non-Federal landowners. We received 
significant comments on multiple rules concerning impacts to private 
and non-Federal lands covered by HCPs and other land management 
conservation plans, including comment on this rule stating that the 
designation of critical habitat in areas covered by HCPs may have a 
negative effect on entities pursuing an HCP and may deter the 
completion of pending subarea plans under either the MSCP or MHCP (see 
Comment 8). As discussed in response to Comment 7 above and in the 
``Conservation Partnerships on Non-Federal Lands'' section below, we 
continue to recognize that designating critical habitat in areas where 
we have partnerships with landowners that have led to conservation or 
management of listed species on non-Federal lands has a relevant 
perceived impact to landowners and a relevant impact to future 
partnership and conservation efforts on non-Federal lands.
    Finally, we agree with the commenter that implementing a signed and 
permitted HCP is not an ``either-or'' situation when determining 
whether to designate an area that meets the definition of critical 
habitat as critical habitat. Rather, as stated in section 4(b)(2) of 
the Act, the Secretary shall designate critical habitat, or make 
revisions thereto, on the basis of the best available data and after 
(emphasis added) taking into consideration the economic impact, the 
impact on national security, 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. We agree with the commenter that 
designation of an area covered by an HCP should create few or no 
additional regulatory burdens for permittees, and our analyses of the 
benefits of including areas covered by an HCP demonstrates how the 
regulatory benefit of inclusion is small. And while we agree that 
critical habitat and habitat conservation plans can coexist, we 
recognize that the designation has a relevant real impact to future 
partnerships and conservation efforts on non-Federal lands and a 
perceived impact to those landowners already in partnership with us. We 
consider that impact in weighing the benefits of inclusion against the 
benefits of exclusion on a case-by-case basis to determine if exclusion 
of those lands is appropriate.
    Comment 10: One commenter objected to the discussion in the 
proposed rule concerning the inundation of lawsuits relative to 
critical habitat and suggested that litigation would be unnecessary or 
unsuccessful if the Service complied with the law. The commenter 
suggested that policymakers make choices that avoid compliance with the 
Act's critical habitat requirements and underfund species and habitat 
conservation programs, starving the Service of funds and staff. The 
commenter concluded that compliance with the law would be a more 
fiscally, biologically, and legally responsible choice.
    Our Response: We removed the discussion of litigation-driven 
workload from this final rule. We believe this final rule is 
scientifically sound and compliant with the Act and our implementing 
regulations.
    Comment 11: One commenter indicated that portions of subunit 1A are 
developed or used for agriculture and do not have the potential to 
support Acanthomintha ilicifolia. The commenter provided a map 
depicting the areas they believe do not support this species and 
requested that we remove these lands from critical habitat.
    Our Response: We reassessed the areas described by the commenter. 
We removed the lands in subunit 1A that do not contain the PCE, 
including active agricultural fields, navigational aids associated with 
McClellen-Palomar Airport, a dirt maintenance road, and development 
areas in the City of Carlsbad. We remapped the boundary of subunit 1A, 
and verified that the revised subunit contains the features essential 
to the conservation of species which may require special management 
considerations or protection. As a result of the changes described 
above, we removed 26 ac (11 ha) that do not support A. ilicifolia and 
do not contain the PCE, resulting in 62 ac (25 ha) designated as 
critical habitat within subunit 1A.
    Comment 12: One commenter provided information on the management of 
lands owned by the

[[Page 50461]]

Center for Natural Lands Management (CNLM). The commenter indicated 
that portions of subunits 1A and 1C are owned by the CNLM, and are 
managed and monitored for Acanthomintha ilicifolia on an annual basis. 
Funding for the perpetual management of these sites is obtained from a 
monetary endowment. The CNLM prepared a Property Analysis Record (PAR) 
to determine how much money is needed to manage and monitor A. 
ilicifolia on these lands. The commenter indicated that the CNLM 
reduces the threats to A. ilicifolia by managing weeds, erecting 
fences, closing trails, and distributing educational literature to the 
public. Additionally, the commenter indicated that high school students 
are involved with annual monitoring for this species and that an 
entomologist is working to determine potential pollinators for A. 
ilicifolia on lands in subunit 1C.
    Our Response: We appreciate the detailed information provided by 
the commenter, and we incorporated this information as appropriate into 
the final rule.

Comments From Other Federal Agencies

    Comment 13: The U.S. Forest Service (USFS) commented that laws, 
regulations, policies, and current Land Management Plan (LMP) direction 
currently in place provide protection at least equivalent to the 
protection that critical habitat designation would provide. The agency 
stated that the LMP in place at the Cleveland National Forest (CNF) 
incorporates management direction that provides sufficient protection 
and management for Acanthomintha ilicifolia and its habitat, and that 
the section 7 consultation on the LMP resulted in the Service coming to 
a similar conclusion, resulting in the issuance of a non-jeopardy 
biological opinion. Additionally, the Cleveland National Forest (CNF) 
has a Species Management Guide for A. ilicifolia that provides for 
exclusion of grazing, recreation, development, and soil disturbance 
(USFS 1991). The USFS commented that due to management and conservation 
standards, there should not be any reason to adversely modify the 
habitat's primary constituent elements for A. ilicifolia on the CNF. 
Furthermore, they commented that designation of critical habitat on CNF 
lands would not provide any additional benefit to the conservation of 
the species or its habitat since all site-specific projects proposed by 
the CNF are subject to section 7(a)(2) consultation with the Service 
and that designation would unnecessarily add to their analysis burden 
by requiring CNF to make a determination of effect regarding critical 
habitat when consulting under section 7 of the Act. The USFS 
acknowledged their responsibility to conserve and recover listed 
species and that they will continue to provide necessary management, 
regardless of critical habitat designation.
    Our Response: We determined that the lands identified on the CNF 
contain the physical and biological features essential to the 
conservation of Acanthomintha ilicifolia and meet the definition of 
critical habitat (see ``Criteria Used to Identify Critical Habitat'' 
section below). We acknowledge that the LMP for CNF will benefit A. 
ilicifolia and its habitat, and that the CNF has completed many of the 
actions outlined in the 1991 Management Guide (USFS 1991) to avoid and 
minimize impacts to A. ilicifolia. The LMP contains general provisions 
for conservation of this species and the Management Guide suggests 
specific management and conservation actions that should address known 
threats to this species on USFS lands. However, the LMP is a guidance 
document and does not require or assure funding for management actions 
outlined in the plan. Additionally, the LMP does not preclude projects 
from occurring outside of the framework of the plan that could 
negatively impact areas designated as critical habitat.
    The Secretary has the discretion to 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 specifying such area, unless he 
determines that the exclusion would result in the extinction of the 
species concerned. We considered the request from the USFS 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 already completed consultation 
under Section 7(a)(2) of the Act on the LMP.
    As part of our section 7 consultation with the USFS on the LMP, the 
USFS 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 
Acanthomintha ilicifolia. Since critical habitat has not been 
previously proposed or designated for this species, it is anticipated 
that consultation with the USFS regarding the LMP will be reinitiated. 
However, because the USFS has already consulted with us on potential 
impacts to the species related to 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 case.
    Based on the record before us, we elected not to exclude these 
lands and are designating lands identified on the CNF that meet the 
definition of critical habitat and are essential to the conservation of 
Acanthomintha ilicifolia. We will continue to consider on a case-by-
case basis in future critical habitat rules whether to exclude specific 
lands from such designation when we determine that the benefits of such 
exclusion outweigh the benefits of their inclusion.
    Comment 14: One commenter indicated that the critical habitat 
proposal, if finalized, may adversely affect the Federal Aviation 
Administration's (FAA's) and San Diego County's ability to continue to 
operate McClellan-Palomar Airport in a safe and efficient manner 
because navigational aides (e.g., lights, maintenance road to access 
navigational aides) are within the area proposed as subunit 1A.
    Our Response: As stated above in our response to comment 11 above, 
we removed the lands in subunit 1A that do not contain the PCE, 
including all active agricultural fields, lands containing navigational 
aides associated with McClellen-Palomar Airport, a dirt maintenance 
road, and development areas in the City of Carlsbad. We remapped the 
boundary of subunit 1A, and we have verified that this area meets the 
definition of critical habitat. Based on currently available 
information, we believe that we have removed all existing navigational 
aides from the designated critical habitat. Additionally, we do not 
believe that regular maintenance of any navigational aides that we are 
currently unaware of, but have been inadvertently included in the 
designation, will adversely modify critical habitat. We are committed 
to working with the FAA and staff of McClellen-Palomar Airport to 
ensure that the designation of critical habitat does not impact the 
future safe and efficient operation of the airport.

[[Page 50462]]

Summary of Changes From the Proposed Rule

    In our March 14, 2007, proposed rule we identified 1,936 acres (ac) 
(783 hectares (ha)) of essential habitat for Acanthomintha ilicifolia 
in four units and seventeen subunits (72 FR 11946). At that time we 
proposed to exclude 1,302 ac (527 ha) under section 4(b)(2) of the Act 
(72 FR 11946; March 14, 2007). As we continued work on the proposed 
designation, we made two types of changes that affected the total area 
considered to meet the definition of critical habitat (what we will 
refer to as ``essential habitat''). First, we corrected simple mapping 
errors; for example, in one case we tallied a single piece of land 
twice in calculating the total number of acres thought to be essential 
habitat. Second, we removed areas that did not qualify as essential 
habitat either because they were developed and degraded or because they 
did not contain the PCE and were not otherwise considered essential. 
Table 1 depicts the changes made to the proposed rule published on 
March 14, 2007, and indicates how much area was removed (or added as 
was the case for some of the corrections) for each of the two reasons 
discussed above. As we continued work on the designation, we notified 
the public of new information we were using to make changes to the 
critical habitat (72 FR 66122, November 27, 2007; 73 FR 27483, May 13, 
2008). However, Table 1 and this discussion focus on the changes from 
the March 14, 2007, proposed rule (72 FR 11946) to this final rule. The 
details related to these changes are explained below.

      Table 1--Areas Proposed as Critical Habitat (72 FR 11946, March 14, 2007), Area Removed or Added as a
            Correction, Area Removed as Non-Essential Habitat, and Final Critical Habitat Designation
----------------------------------------------------------------------------------------------------------------
                                  Essential  habitat                         Area removed
                                   in  the March 14,   Area  subtracted   because it was not  Essential  habitat
  Critical habitat unit/subunit     2007  proposed      or  added as a     essential habitat   as  of this final
                                        rule *           correction *              *                rule *
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
 County:
    1A. Palomar Airport.........  88 ac (36 ha).....  ..................  26 ac (11 ha).....  62 ac (25 ha).
    1B. Southeast Carlsbad......  73 ac (29 ha).....  ..................  16 ac (6 ha)......  57 ac (23 ha).
    1C. Manchester..............  92 ac (37 ha).....  ..................  13 ac (5 ha)......  79 ac (32 ha).
Unit 2: Central San Diego
 County:
    2A. Los Pe[ntilde]asquitos    63 ac (25 ha).....  ..................  ..................  63 ac (25 ha).
     Canyon.
    2B. Sabre Springs...........  52 ac (22 ha).....  Subtracted: 0 ac    ..................  52 ac (21 ha).
                                                       (1 ha).
    2C. Sycamore Canyon.........  306 ac (124 ha)...  ..................  ..................  306 ac (124 ha).
    2D. Slaughterhouse Canyon...  77 ac (31 ha).....  ..................  ..................  77 ac (31 ha).
Unit 3: Viejas Mountain and
 Poser Mountain:
    3A. Viejas Mountain.........  33 ac (13 ha).....  ..................  1 ac (<1 ha)......  32 ac (13 ha).
    3B. Viejas Mountain.........  208 ac (84 ha)....  ..................  15 ac (6 ha)......  193 ac (78 ha).
    3C. Viejas Mountain.........  318 ac (128 ha)...  ..................  42 ac (16 ha).....  276 ac (112 ha).
    3D. Viejas Mountain.........  82 ac (33 ha).....  ..................  ..................  82 ac (33 ha).
    3E. Poser Mountain..........  34 ac (14 ha).....  ..................  ..................  34 ac (14 ha).
    3F. Poser Mountain..........  163 ac (66 ha)....  ..................  8 ac (3 ha).......  155 ac (63 ha).
Unit 4: Southern San Diego
 County:
    4A. McGinty Mountain........  18 ac (7 ha)......  Added: 2 ac (1 ha)  ..................  20 ac (8 ha).
    4B. McGinty Mountain........  220 ac (89 ha)....  Subtracted: 72 ac   ..................  148 ac (60 ha).
                                                       (29 ha).
    4C. McGinty Mountain........  27 ac (11 ha).....  Added: 1 ac (0 ha)  ..................  28 ac (11 ha).
    4D. Hollenbeck Canyon.......  84 ac (34 ha).....  ..................  ..................  84 ac (34 ha).
                                 -------------------------------------------------------------------------------
        Total...................  1,936 ac (783 ha)   Subtracted: 69 ac   121 ac (48 ha)....  1,748 ac (707 ha).
                                   **.                 (29 ha).
----------------------------------------------------------------------------------------------------------------
* The values in this table do not represent an actual conversion of acres to hectares.
** The sum of the values in this column is 1,938 ac (783 ha), whereas the value given for the total in the Table
  1 of the March 14, 2007, Federal Register notice was 1,936 ac (783 ha). This difference is due to rounding and
  the conversion of values from acres to hectares on a subunit-by-subunit basis rather than for the critical
  habitat as a whole.

    (1) In the proposed rule (72 FR 11946; March 14, 2007), we proposed 
to exclude a total of 95 ac (38 ha) of private lands in subunits 3C, 
3D, and 3F from the final critical habitat designation under section 
4(b)(2) of the Act. We believed these lands were within the planning 
boundary for the County of San Diego approved subarea plan under the 
San Diego MSCP. However, the private lands in subunits 3C, 3D, and 3F 
are not within the planning boundary for the County of San Diego 
subarea plan under the MSCP; therefore, consideration for exclusion 
under that HCP was inappropriate. All lands that meet the definition of 
critical habitat in subunits 3C, 3D, and 3F are now designated as 
critical habitat.
    (2) In the proposed rule (72 FR 11946; March 14, 2007), the maps 
and boundary descriptions of subunits 4A and 4B were delineated 
correctly; however, the area estimates were incorrect. The correct area 
for subunit 4A is 20 ac (8 ha) rather than 18 ac (7 ha), and the 
correct area for subunit 4B is 148 ac (60 ha) rather than 220 ac (89 
ha) (see Table 1). Non-Federal lands in subunits 4A and 4B are excluded 
from critical habitat, and the federally owned lands in subunit 4A are 
designated as critical habitat.
    (3) In the proposed rule (72 FR 11946; March 14, 2007), we did not 
identify that subunit 4A contained 2 ac (1 ha) of federally owned land, 
and subunit 4C contained 1 ac (<1 ha) of federally owned land. Both of 
these subunits include land in the Service's San Diego National 
Wildlife Refuge (SDNWR). We proposed to exclude all non-Federal lands 
in subunits 4A and 4C from the final designation based on the benefits 
provided to Acanthomintha ilicifolia by the County of San Diego subarea 
plan under the MSCP. While we are excluding all private and non-Federal 
public lands covered by the subarea plan in this final rule, this 
exclusion

[[Page 50463]]

does not apply to Federal lands; therefore, we are designating 3 ac (1 
ha) on the SDNWR in Unit 4.
    (4) We re-evaluated the areas proposed as critical habitat based on 
more up-to-date aerial imagery, field visits, and the most recent 
version of the HabiTrak database (i.e., a database that shows areas 
lost to development in the area covered by the MSCP). We determined 
that some areas proposed as critical habitat no longer contain the PCE. 
Therefore, we removed these areas from critical habitat. Below we 
describe the specific areas that we removed from critical habitat:
    (a) Subunit 1A, Palomar Airport--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 88 ac (36 
ha). After re-evaluating this area, we found that approximately 26 ac 
(11 ha) do not contain the PCE, including all active agricultural 
fields, lands containing navigational aides associated with McClellen-
Palomar Airport, a dirt maintenance road, and development areas in the 
City of Carlsbad (see Table 1). As a result, we determined that 62 ac 
(25 ha) meet the definition of critical habitat in subunit 1A. Of the 
62 ac (25 ha), we are designating 60 ac (24 ha) as critical habitat, 
and we are excluding 2 ac (1 ha) from critical habitat under section 
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).
    (b) Subunit 1B, Southeast Carlsbad--In the proposed rule (72 FR 
11946; March 14, 2007), we indicated that this subunit contained 73 ac 
(30 ha). After re-evaluating this area, we found that approximately 16 
ac (7 ha) are regularly maintained wildland-urban interface and do not 
support the PCE for Acanthomintha ilicifolia; therefore, we removed 
these 16 ac (7 ha) from critical habitat (see Table 1). As a result, we 
determined that 57 ac (23 ha) meet the definition of critical habitat 
in subunit 1B. We are excluding all of the 57 ac (7 ha) from critical 
habitat under section 4(b)(2) of the Act (see ``Exclusions Under 
Section 4(b)(2) of the Act'' section).
    (c) Subunit 1C, Manchester--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 92 ac (37 
ha). After re-evaluating this area, we found that approximately 13 ac 
(5 ha) are fragmented by suburban development or are too steep to 
support the PCE for Acanthomintha ilicifolia; therefore, we removed 
these 13 ac (5 ha) from critical habitat (see Table 1). As a result, we 
determined that 79 ac (32 ha) meet the definition of critical habitat 
in subunit 1C. Of the 79 ac (32 ha) that meet the definition of 
critical habitat, we are designating 9 ac (4 ha) as critical habitat, 
and we are excluding 70 ac (28 ha) from critical habitat under section 
4(b)(2) of the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section).
    (d) Subunit 3A, Viejas Mountain--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 33 ac (13 
ha). After re-evaluating this area, we found that approximately 1 ac 
(<1 ha) is developed and no longer supports the PCE for Acanthomintha 
ilicifolia; therefore, we removed this 1 ac (<1 ha) from critical 
habitat (see Table 1). As a result, we determined that 32 ac (13 ha) 
meet the definition of critical habitat in subunit 3A. We are excluding 
all of the 32 ac (13 ha) from critical habitat under section 4(b)(2) of 
the Act (see ``Exclusions Under Section 4(b)(2) of the Act'' section).
    (e) Subunit 3B, Viejas Mountain--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 208 ac (84 
ha). After re-evaluating this area, we found that approximately 15 ac 
(6 ha) are developed and no longer support the PCE for Acanthomintha 
ilicifolia; therefore, we removed these 15 ac (6 ha) from critical 
habitat (see Table 1). As a result, we determined that 193 ac (78 ha) 
meet the definition of critical habitat in subunit 3B. Of the 193 ac 
(78 ha) that meet the definition of critical habitat in subunit 3B, we 
are designating 52 ac (21 ha) as critical habitat, and we are excluding 
141 ac (57 ha) from critical habitat under section 4(b)(2) of the Act 
(see ``Exclusions Under Section 4(b)(2) of the Act'' section).
    (f) Subunit 3C, Viejas Mountain--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 318 ac (128 
ha). After re-evaluating this area, we found that approximately 42 ac 
(16 ha) are impacted by rural development and do not contain the PCE; 
therefore, we removed these 42 ac (16 ha) from critical habitat (see 
Table 1). As a result, we determined that 276 ac (112 ha) meet the 
definition of critical habitat in subunit 3C. We are designating all of 
the 276 ac (112 ha), which are federally owned, as critical habitat.
    (g) Subunit 3F, Poser Mountain--In the proposed rule (72 FR 11946; 
March 14, 2007), we indicated that this subunit contained 163 ac (66 
ha). After re-evaluating this area, we found that approximately 8 ac (3 
ha) are impacted by rural development or agricultural activities and do 
not contain the PCE; therefore, we removed these 8 ac (3 ha) from 
critical habitat (see Table 1). As a result, we determined that 155 ac 
(63 ha) meet the definition of critical habitat in subunit 3F. We are 
designating the 155 ac (63 ha), all of which are federally owned, as 
critical habitat.
    (5) In the proposed rule (72 FR 11946; March 14, 2007), we proposed 
the exclusion of lands in subunit 1A and 1B covered by the Carlsbad 
Habitat Management Plan (HMP) under the MHCP from the designation of 
critical habitat under section 4(b)(2) of the Act. Upon further 
analysis of the Carlsbad HMP, we found that coverage of Acanthomintha 
ilicifolia under this HCP is contingent on compliance with the 
conservation measures outlined in the HMP (i.e., a funded management 
plan in place) and the completion of the San Marcos subarea plan under 
the MHCP. We announced that we were reconsidering this exclusion in our 
May 13, 2008, Federal Register notice (73 FR 27483); we did not receive 
public comments on this subject. However, we did not identify any lands 
in San Marcos that meet the definition of critical habitat as described 
in the ``Criteria Used to Identify Critical Habitat'' section. 
Therefore, we analyzed the exclusion of subunit 1A and 1B in more 
detail and concluded that exclusion is appropriate because the 
essential habitat under the Carlsbad HMP is conserved and has 
management in place (see ``Exclusions Under Section 4(b)(2) of the 
Act'' section of this final rule for a detailed discussion of this 
exclusion). We are designating the remaining 60 ac (24 ha) of land 
owned by the County of San Diego in subunit 1A because it is not 
covered by the Carlsbad HMP.
    (6) In the proposed rule (72 FR 11946; March 14, 2007), we proposed 
the exclusion of lands in subunit 1C covered by the pending Encinitas 
subarea plan under the MHCP from the designation of critical habitat 
under section 4(b)(2) of the Act. At this time, the Encinitas subarea 
plan under the MHCP has not been completed. However, the majority of 
subunit 1C is part of the Manchester Avenue Mitigation Bank and is 
actively managed for Acanthomintha ilicifolia (Spiegelberg 2005, p. 1-
33). We determined that the benefits of excluding lands within the 
conservation bank area from critical habitat designation outweigh the 
benefits of including the area, and that their exclusion will not 
result in extinction of this species. Therefore, we are excluding 70 ac 
(28 ha) of subunit 1C under section 4(b)(2) of the Act (see 
``Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion of this exclusion),

[[Page 50464]]

and we are designating the remaining 9 ac (4 ha) of private lands 
outside the Manchester Avenue Mitigation Bank as critical habitat (see 
``Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion of this exclusion).
    (7) In the proposed rule (72 FR 11946; March 14, 2007), we proposed 
the exclusion of non-Federal lands covered by the City of San Diego 
subarea plan under the MSCP in subunits 2A and 2B and the exclusion of 
non-Federal lands covered by the County of San Diego subarea plan under 
the MSCP in subunits 2C, 2D, 3A, 3B, 4A, 4B, 4C, and 4D from the 
designation of critical habitat under section 4(b)(2) of the Act. In 
this final rule, we determined that the benefits of exclusion outweigh 
the benefits of inclusion of these lands and that their exclusion will 
not result in extinction of this species. Therefore, we excluded all 
non-Federal lands in subunits 2A and 2B covered by the City of San 
Diego subarea plan and all non-Federal lands in subunits 2C, 2D, 3A, 
3B, 4A, 4B, 4C, and 4D covered by the County of San Diego subarea plan, 
under section 4(b)(2) of the Act (see ``Exclusions Under Section 
4(b)(2) of the Act'' section of this final rule for a detailed 
discussion of this exclusion). Federally owned lands in subunits 3B, 
4A, and 4C are designated as critical habitat.
    (8) In our March 14, 2007, proposed rule (72 FR 11946), we 
indicated that all subunits except 3E and 4D were known to be occupied 
by the species at the time of listing (October 13, 1998). We now 
consider subunits 3E and 4D to have been occupied at the time of 
listing. Even though these occurrences were not discovered until after 
the species was listed in 1998, over 1,000 plants were recorded at each 
of these sites when they were first discovered in 2000 and 2001, 
respectively. We believe the large population size indicates that the 
occurrences were established for several years prior to their discovery 
and were established at the time the species was listed. Acanthomintha 
ilicifolia seeds do not disperse in large numbers and any new 
population of A. ilicifolia would likely start out small and take 
several years to reach a population size greater than 1,000 plants. 
Therefore, since these large populations were discovered 2 to 3 years 
after listing, we consider all subunits proposed or designated as 
critical habitat to have been occupied at the time of listing (see 
``Criteria Used To Identify Critical Habitat'' section). We designated 
critical habitat in subunit 3E, and we excluded subunit 4D as discussed 
above.
    (9) We made two corrections to our description of the PCE. First, 
in the proposed rule (72 FR 11946; March 14, 2007), we omitted 
grassland vegetation as one of the vegetation types in which 
Acanthomintha ilicifolia is commonly found. This information was 
discussed in the proposed rule, but was inadvertently left out of the 
PCE. We included it in the PCE in this final rule. Second, in the 
proposed rule (72 FR 11946; March 14, 2007), we indicated that deep 
fissures in the clay soils associated with A. ilicifolia are 
approximately 2 feet (60 cm) deep. However, there are only 
observational discussions and no formal studies on this topic. We 
broadened the statement on this habitat feature in the PCE to state 
that the fissures in the soil range in depth from approximately 1 to 2 
feet (30 to 60 cm).
    As a result of the removals and corrections outlined above, a total 
of approximately 1,748 ac (707 ha) meets the definition of critical 
habitat and is considered essential habitat for Acanthomintha 
ilicifolia. We are excluding approximately 1,077 ac (435 ha) of 
essential habitat under section 4(b)(2) of the Act because we 
determined that the benefits of excluding those lands from the critical 
habitat designation outweigh the benefits of including them in the 
designation (see ``Exclusions Under Section 4(b)(2) of the Act'' 
section) . In conclusion, we are designating 671 ac (272 ha) of land in 
San Diego County as critical habitat for A. ilicifolia in this final 
rule.

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
    (ii) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means 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, or 
transplantation.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies 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, habitat within the 
geographical area occupied by the species at the time it was listed 
must contain the physical or biological features that are essential to 
the conservation of the species. Critical habitat designations 
identify, to the extent known using the best scientific data available, 
habitat areas that provide essential life cycle needs of the species 
(i.e., areas on which are found those physical and biological features 
laid out in the appropriate quantity and spatial arrangement for the 
conservation of the species).
    Occupied habitat that contains the features essential to the 
conservation of the species meets the definition of critical habitat 
only if those features may require special management considerations or 
protection.
    Under the Act, we can designate unoccupied areas as critical 
habitat only when we determine that the best available scientific data 
demonstrate that the designation of that area is 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

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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. In the case of Acanthomintha 
ilicifolia, several botanists and land managers conducted field 
assessments and management experiments that were helpful in identifying 
the areas that meet the definition of critical habitat. There is no 
recovery plan for A. ilicifolia.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that designation of 
critical habitat may not include all of the habitat areas that we may 
eventually determine, based on scientific data not now available to the 
Service, 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 be required for 
recovery of the species.
    Areas that support populations, but are outside the critical 
habitat designations, will continue to be subject to conservation 
actions we implement under section 7 of the Act. They 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 Federal 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

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas occupied by 
the species at the time of listing to designate as critical habitat, we 
consider the physical and biological features essential to the 
conservation of the species that may require special management 
considerations or protection to be the PCEs laid out in the appropriate 
quantity and spatial arrangement for the conservation of the species. 
These physical and biological features 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, or 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 derived the specific primary constituent element required for 
Acanthomintha ilicifolia from its biological needs, as described in the 
proposed critical habitat rule published in the Federal Register on 
March 14, 2007 (72 FR 11946), and below.

Space for Individual and Population Growth and Normal Behavior

    Acanthomintha ilicifolia occurs on isolated patches of clay soils 
derived from gabbro and soft calcareous sandstone substrates (Oberbauer 
and Vanderwier 1991, pp. 208-209). The soils derived from gabbro 
substrates are red to dark brown clay soils, and those derived from 
soft calcareous sandstone are gray clay soils. These patches of clay 
soils are called ``clay lenses.'' In San Diego County, California, and 
northern Baja California, Mexico, clay lenses are known to support a 
variety of narrow endemic (restricted to a specific geographic area) 
plants. Clay lenses tend to have an open or unpopulated look because 
many common species cannot tolerate living on these clay soils. Clay 
lenses are typically devoid of woody, perennial shrubs (Oberbauer and 
Vanderwier 1991, pp. 208-209) (PCE). Shrubs have difficulty surviving 
on these soils because in the rainy winter months these soils become 
saturated with water and the large root systems of shrubs are not able 
to get oxygen (Oberbauer and Vanderwier 1991, pp. 208-209). Another 
reason it is difficult for shrubs to take root and become established 
on the clay soil is because as the soils become saturated with water 
they expand and when the soils dry they contract and crack. The harsh 
conditions that clay soils exhibit make clay lenses a difficult 
microhabitat for annual native plants to grow on, which limits the 
number and density of common native plants on clay lenses. Due to the 
absence of most common native vegetation from clay lenses, the areas 
where A. ilicifolia occurs appear as open areas surrounded by areas 
populated by denser vegetation.
    In addition to the characteristics discussed above, the texture and 
structure of the clay lenses are essential for supporting the seedling 
establishment and growth of Acanthomintha ilicifolia. This soil 
provides many small pockets and deeper fissures where seeds from A. 
ilicifolia become lodged as they fall from decomposing plants (Bauder 
and Sakrison 1999, p. 28). The seeds stay in the soils until the 
temperatures become cooler in the winter months and the soil becomes 
saturated with the winter rains (Bauder and Sakrison 1997, p. 28-29). 
The seedlings then germinate and grow to mature plants. These plants do 
best when they are not crowded or shaded by other plants (Bauder and 
Sakrison 1999, p. 12). The loose, crumbly texture of the soil provides 
the proper substrate to hold the seed bank and allow for root growth.
    Clay lenses are generally inhabited by a specific flora that 
consists of forbs, native grasses, and geophytes (perennial plants 
propagated by buds on underground bulbs, tubers, or corms, such as 
lilies, iris, and onions) (Oberbauer and Vanderwier 1991, pp. 208-209), 
which are better adapted to the harsh conditions mentioned above. 
Native plant species that characterize the vegetation found with 
Acanthomintha ilicifolia on clay lenses include Hesperevax sparsiflora 
var. sparsiflora (erect evax), Harpagonella palmeri (Palmer's 
grappling-hook), Convolvulus simulans (bindweed), Apiastrum 
angustifolium (mock parsley), and Microseris douglasii ssp. platycarpha 
(small flowered microseris) (Bauder et al. 1994, pp. 9-10; McMillan 
2006, p. 1; Vinje 2006b, pp. 1-2).
    Clay lenses generally form on gentle slopes. An analysis of 20 
sites where

[[Page 50466]]

Acanthomintha ilicifolia was observed found that the slopes range from 
0 to 25 degrees, with the majority of the sites having slopes below 20 
degrees (Bauder et al. 1994, pp. 10-11). This study found that many 
thriving, natural populations were on slopes that faced southeast, 
south, southwest, and west (Bauder et al. 1994, pp. 10-11). Using GIS, 
we found that the known populations of A. ilicifolia range in elevation 
from sea level to 3,000 ft (914 m). Acanthomintha ilicifolia occurs on 
soils mapped as Las Posas, Olivenhain, Redding, Huerhuero, Altamont, 
Cieneba, and Linne (Service GIS database; soils described by Bowman 
1973, pp. 22-24, 38-40, 54-55, 61-64, 67-68, and 71-72).

Water and Hydrology

    The loose, crumbly clay soils that support Acanthomintha ilicifolia 
act like a sponge and are saturated by winter rains. The saturation of 
these soils allows for seeds of A. ilicifolia to imbibe with water and 
germinate in the cool winter months of the Mediterranean-type climate 
(Bauder and Sakrison, 1997, p. 32). As such, the species requires a 
natural hydrological regime to reproduce. However, we do not have 
specific information on the hydrological regime that this species 
requires, other than the general characteristics of a Mediterranean-
type climate; therefore, we did not include hydrological regime as a 
primary constituent element.

Reproduction and Pollination

    The breeding system of Acanthomintha ilicifolia has not been 
studied, but it has been determined that other members of the genus 
Acanthomintha are self-compatible (Steeck 1995, pp. 27-33). A 1996 
study (Bauder and Sakrison 1997, p. 38) found that several insect 
species visited the flowers and moved from plant to plant. These 
insects represented possible pollinators of A. ilicifolia; however, 
none were thought to represent species-specific pollinators (Bauder and 
Sakrison 1997, p. 39). Since we do not have information on any species-
specific pollinators that visit A. ilicifolia, we did not include 
pollinators as a primary constituent element.

Primary Constituent Element for Acanthomintha ilicifolia

    Within the geographical area known to be occupied by Acanthomintha 
ilicifolia, at the time of listiing we must identify the physical and 
biological features that may require special management considerations 
or protection.
    In this case, we identified one PCE with multiple parts. All areas 
designated as critical habitat for Acanthomintha ilicifolia are 
occupied, occur within the species' historic geographic range, and 
contain the PCE required to support at least one life history function. 
The data provided in the PCE is summarized from existing scientific 
data. It is important to note that the variable amounts and timing of 
precipitation in southern California do not result in favorable 
conditions for A. ilicifolia in every year.
    Based on the above needs and our current knowledge of the life 
history, biology, and ecology of the species and the requirements of 
the habitat to sustain the essential life history functions of the 
species, we determined that the PCE for Acanthomintha ilicifolia is:
    Clay lenses that provide substrate for seedling establishment and 
space for growth and development of Acanthomintha ilicifolia that are:
    (a) Within chaparral, grassland, and coastal sage scrub;
    (b) On gentle slopes ranging from 0 to 25 degrees;
    (c) Derived from gabbro and soft calcareous sandstone substrates 
with a loose, crumbly structure and deep fissures approximately 1 to 2 
feet (30 to 60 cm); and
    (d) Characterized by a low density of forbs and geophytes, and a 
low density or absence of shrubs.
    This designation encompasses those areas containing the PCE 
necessary to support one or more of the species' life history functions 
laid out in the appropriate quantity and spatial arrangement for the 
conservation of the species. All units and subunits in this designation 
contain the PCE and support multiple life processes. As stated in the 
``Criteria Used To Identify Critical Habitat'' section of this rule, we 
believe that we can conserve Acanthomintha ilicifolia through the 
designation of critical habitat within its extant range and are not 
including any areas outside of the geographical area occupied by the 
species.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the occupied 
areas contain features that are essential to the conservation of the 
species and that may require special management considerations or 
protection.
    As stated in the final listing rule, threats to Acanthomintha 
ilicifolia include trampling and grazing, the presence of exotic plant 
species, off-road vehicles (ORVs), mining, and urbanization (63 FR 
54938). Through our review of the existing data on A. ilicifolia, we 
conclude that the threats listed in the final listing rule continue to 
impact this species and its essential physical and biological features.
    Urban development near Acanthomintha ilicifolia populations may 
alter the habitat characteristics required by this species. The 
destruction of habitat can change the slope and aspect of a site, 
making it uninhabitable for A. ilicifolia (PCE 1(b)). The close 
proximity of development to populations of A. ilicifolia may affect 
other aspects of the site. For example, increased water runoff from 
developments may erode the clay lense and change the topography of the 
site (Bauder et al. 1994, p. 23) (PCE 1(b and c)).
    The introduction of exotic plant species such as Centaurea 
melitensis can drastically change the species present in (PCE 1(a)), 
and eliminate the open character of, the clay lense habitat (PCE 1(d)). 
Centaurea melitensis has been shown, in field and greenhouse 
experiments, to negatively effect the biomass (growth) and seed 
production (reproduction) of Acanthomintha ilicifolia (Bauder and 
Sakrison 1999, p. 16). Populations of A. ilicifolia that are close to 
urbanized areas or in areas that are heavily grazed generally have a 
high density of exotic plant species (PCE 1(a)). In disturbed soils, C. 
melitensis is a common weed. When this and other exotic plant species 
become established, they can out-compete A. ilicifolia for light, 
water, nutrients, and space. Acanthomintha ilicifolia often grows 
larger and at a higher density when competition with exotic weeds is 
reduced (Bauder and Sakrison 1999, pp. 12-16; Vinje 2007, p. 10).
    The final listing rule (63 FR 54938) discusses the impacts of ORV 
activity and trampling. In recent years, the impacts associated with 
the use of mountain bikes have been documented to cause similar impacts 
(Vinje 2006a, p. 1). Trampling, ORV activity, and mountain bike use in 
Acanthomintha ilicifolia habitat can compact the loose, crumbly soils 
(PCE 1(c)). Repeated travel over a trail or track degrades the habitat 
of A. ilicifolia in two ways: (1) By displacing soil; and (2) by 
compacting soil. These activities, in turn, can destroy individual 
plants and can reduce the amount of water that can percolate into the 
soil, thus reducing the plant's ability to grow and reproduce.
    Mining is documented as a threat at two sites known to support 
Acanthomintha ilicifolia (63 FR 54938; Bauder et al. 1994, p. 17). 
Mining can alter many aspects of A. ilicifolia

[[Page 50467]]

habitat. Heavy machinery can compact or remove clay lenses (PCE 1(c)) 
or alter the slope of an area (PCE 1(b)). The grading of large areas 
adjacent to A. ilicifolia habitat can make those areas vulnerable to 
invasion by exotic plant species and lead to the subsequent crowding 
and shading of A. ilicifolia habitat (PCE 1(d)). These impacts may in 
turn lead to the disruption of the growth and reproduction of A. 
ilicifolia.
    The protection of habitat for Acanthomintha ilicifolia from 
development is the first measure of protection needed for populations 
of this species (PCE 1(a)). The control of exotic plant species, the 
maintenance and enhancement of clay lense habitat, the control of 
incompatible and often illegal activities such as off-road vehicle use 
and other unauthorized recreational impacts, and careful oversight of 
adjacent activities such as mining, will help to ensure the long-term 
conservation for A. ilicifolia and the physical and biological features 
essential for the conservation of the species.

Criteria Used To Identify Critical Habitat

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific and commercial data available in determining the specific 
occupied areas that contain the features essential to the conservation 
of species which may require special management considerations or 
protection, as well as when determining if any specific areas outside 
the geographical area occupied by the species are essential to the 
conservation of the species. We only designate areas outside the 
geographical area occupied by a species when a designation limited to 
its present range would be inadequate to ensure the conservation of the 
species (50 CFR 424.12(e)).
    Species and plant communities that are protected across their 
ranges are expected to have lower likelihoods of extinction (Soule and 
Simberloff 1986; Scott et al. 2001, pp. 1297-1300); therefore, 
essential habitat should include multiple locations across the entire 
range of the species to prevent range collapse and contribute to 
recovery of the species. Conserving habitat variability throughout the 
range of this species is important to capture the range of habitat 
diversity and, potentially, genetic variability, the preservation of 
which is likely to ensure the conservation of those Acanthomintha 
ilicifolia occurrences that are most likely to persist under future 
environmental conditions and to contribute to species recovery. Genetic 
variation generally results from the effects of population isolation 
and adaptation to locally distinct environments (Lesica and Allendorf 
1995, pp. 754-757; Fraser 2000, pp. 49-51; Hamrick and Godt 1996, pp. 
291-295). We sought to include the range of ecological conditions in 
which A. ilicifolia is found to preserve the genetic variation that may 
result from adaptation to local environmental conditions, as documented 
in other plant species (e.g., see Hamrick and Godt 1996, pp. 299-301; 
Millar and Libby 1991, pp. 150, 152-155). Locations that possess unique 
ecological characteristics are those that represent the full range of 
environmental variability where A. ilicifolia has evolved, and 
therefore, are likely to promote the adaptation of the species to 
different environmental conditions and contribute to species recovery.
    All critical habitat subunits discussed in this designation are 
occupied by the species. Occupied areas were determined from survey 
data and element occurrence data in the California Natural Diversity 
Database (CNDDB) (CNDDB 2006). For the purpose of this designation, we 
assumed that each element occurrence represents a population of 
Acanthomintha ilicifolia, except in cases where there are several 
element occurrences located within 1 mile (1.6 km) of each other and 
the habitat is not fragmented by manmade features. In these cases, we 
considered the group of element occurrences as a single population. 
Examples of this include the Manchester Avenue Mitigation Bank in 
Encinitas (element occurrence (EO) 28, EO 42, and EO 54), McGinty 
Mountain near Jamul (EO 21, EO 22, and EO 30), and Viejas and Poser 
Mountains near Alpine (EO 12, EO 50, EO 51, EO 62, EO 73, EO 74, and EO 
75).
    Using GIS data in the areas identified as occupied by this species 
as a guide, we identified the areas that contained the physical and 
biological features essential to the conservation of Acanthomintha 
ilicifolia (the PCE). To map the areas that meet the definition of 
critical habitat, we identified areas that contain the PCE in the 
quantity and spatial distribution essential for the conservation of 
this species using the following criteria: (1) Support populations that 
occur on rare or unique habitat within the species' range; (2) support 
the largest known populations of A. ilicifolia; or (3) support the most 
stable populations of A. ilicifolia. These criteria are explained in 
greater detail below. Areas containing the PCE and that meet at least 
one of the above criteria were considered to meet the definition of 
critical habitat. We included adjacent areas up to 500 ft (128 m) that 
contained habitat for A. ilicifolia to capture the full extent of each 
population including the seed bank, as this species fluctuates annually 
in population density and spatial distribution. Data from past survey 
efforts and recent field work conducted by Service biologists 
frequently found occurrences of A. ilicifolia located outside the exact 
areas where this species was mapped (Bauder et al. 1994, pp. 14-15; 
CNDDB 2006, pp. 11, 28-29, and 70; Service unpublished data 2006).
    The resulting areas meet the definition of critical habitat. To 
evaluate locations occupied by this species we used the CNDDB (CNDDB 
2006, pp. 1-74), a survey of A. ilicifolia habitat and populations by 
Bauder et al. (1994, pp. 7-23), biological surveys (City of San Diego 
2000, pp 2-6; City of San Diego 2001, pp. 1-10; City of San Diego 2003, 
pp. 1-11; City of San Diego 2004, pp. 1-7; City of San Diego 2005, pp. 
1-5; Conservation Biology Institute 2002, p. A3-1; County of San Diego 
2002, p. 17; Dudek and Associates, Inc. 2006, Appendix A, pp. 3-4; 
Helix Environmental Planning, Inc. 2002, p. 6; REC Consultants, Inc. 
2004, figure 5), and interviews with botanists working on this species 
(Kelley 2005, p. 1; McMillan 2006, p. 1; Vinje 2006b, pp. 1-2).
    The first criterion we used to identify critical habitat is any 
area that supports a population in rare or unique habitat within the 
species' range. The majority of areas that currently support 
Acanthomintha ilicifolia are on dark brown to reddish brown clay soils 
derived from gabbro substrates. Historically, A. ilicifolia also 
occurred on gray clay soils that are derived from soft calcareous 
sandstone substrates. Conserving unique habitats for A. ilicifolia may 
help to reduce the risk of extinction for this species as it may 
capture remaining ecological diversity within the range of the species 
and contribute to the recovery of this species. This ecological 
diversity may be reflected in genetic diversity; however, at this time, 
no one has investigated the genetic structure of this species. The only 
remaining population on the calcareous clay soil type is northeast of 
the intersection of Palomar Airport Road and El Camino Real, in the 
City of Carlsbad.
    The second criterion we used to identify critical habitat is any 
area that supports one of the largest known populations of 
Acanthomintha ilicifolia. The CNDDB includes data for this species that 
date back to 1978. Populations of this species range from

[[Page 50468]]

just a few individuals to several thousand plants. The majority of the 
known populations range from 50 to 2,000 plants. Yet, there are four 
populations that stand out as the largest, each having greater than 
25,000 plants. These large populations are vital for the conservation 
of this species and occur within large blocks of open space that are 
less likely to be impacted by edge effects associated with the smaller 
populations in highly urbanized areas. Therefore, the conservation of 
these large populations will increase the persistence of the species 
across its range and the overall recovery of this species. The four 
largest populations and the estimated population at each location are: 
Sycamore Canyon, 31,000 plants; Slaughterhouse Canyon, 60,000 plants; 
Viejas and Poser Mountains, 29,650 plants; and Hollenbeck Canyon, 
100,000 plants. These four populations represent approximately 75 
percent of the total known plants of this species.
    The third criterion we used to identify critical habitat is any 
area that supports one of the most stable populations of Acanthomintha 
ilicifolia. For the purpose of this critical habitat designation, we 
defined the most stable populations as those that contained more than 
1,000 plants at least once during the period for which we have survey 
data. We evaluated the population data from the CNDDB and determined 
that populations with more than 1,000 plants at some time had the 
ability to rebound following years with low population numbers. 
Therefore, we considered populations with more than 1,000 plants to 
have a high probability of persisting into the future and contributing 
to the conservation of the species. Although these areas are not free 
from exotic plant competitors, these populations have persisted over 
time without being out-competed by the exotic plant species present. 
This may partially be a result of the low density of exotic plant 
species at these locations and, in some cases, the management of exotic 
plant species. All of the areas that meet criterion two also meet 
criterion three. Five additional areas have populations of A. 
ilicifolia that meet criterion three: the southeast portion of the City 
of Carlsbad; the Manchester Avenue Mitigation Bank; Los 
Pe[ntilde]asquitos Canyon; Sabre Springs; and McGinty Mountain. These 
areas support the most stable populations of A. ilicifolia.
    All 10 areas that we identified as meeting the criteria for 
critical habitat contain the PCE essential for the conservation of this 
species. These areas support the only population on calcareous clay 
soil, the largest populations, and the most stable populations of 
Acanthomintha ilicifolia. Application of these criteria captures the 
physical and biological features essential to the conservation of the 
species in the appropriate quantity and spatial arrangement and 
represents the range of environmental variability for this species. 
Although a genetic analysis of A. ilicifolia is not available, these 
criteria likely capture the full breadth of important habitat types and 
are expected to protect the genetic variability of this species. The 
identified habitat areas, if managed for threats to the physical and 
biological features, are adequate to ensure the conservation of A. 
ilicifolia.
    When determining the critical habitat boundaries for this final 
rule, we made every effort to avoid including developed areas such as 
lands covered by buildings, pavement, and other structures because such 
lands lack the PCE for Acanthomintha ilicifolia. 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 structures and the land under them inadvertently left 
inside critical habitat boundaries shown on the maps 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 approximately 671 ac (272 ha) of critical 
habitat for Acanthomintha ilicifolia in three of the four units 
proposed as critical habitat with a total of 10 subunits. Table 2 
outlines the areas that meet the definition of critical habitat, the 
areas excluded from this final critical habitat, and the area 
designated as critical habitat. Table 2 also shows a breakdown of the 
critical habitat based on the ownership of these areas. The critical 
habitat areas we describe below constitute our current best assessment 
of areas designated as critical habitat for A. ilicifolia. In this 
section, we did not discuss the details of the areas that are excluded 
from critical habitat under section 4(b)(2) of the Act. For more 
information on the areas that are excluded, please see the ``Exclusions 
Under Section 4(b)(2) of the Act'' section.

  Table 2--Areas That Meet the Definition of Critical Habitat for Acanthomintha ilicifolia, Areas Excluded From
   This Final Critical Habitat, and Areas Designated as Critical Habitat; Including the Ownership of Each Area
----------------------------------------------------------------------------------------------------------------
                                                        Area that meets   Area excluded from
      Critical habitat unit         Land ownership     the definition of    final critical    Area designated as
                                                       critical habitat         habitat        critical habitat
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
 County:
    1A. Palomar Airport.........  Private...........  2 ac (1 ha).......  2 ac (1 ha).......  0 ac (0 ha).
                                  State/Local.......  60 ac (24 ha).....  0 ac (0 ha).......  60 ac (24 ha).
    1B. Southeast Carlsbad......  Private...........  57 ac (23 ha).....  57 ac (23 ha).....  0 ac (0 ha).
    1C. Manchester..............  Private...........  79 ac (32 ha).....  70 ac (28 ha).....  9 ac (4 ha).
Unit 2: Central San Diego
 County:
    2A. Los Pe[ntilde]asquitos    State/Local.......  63 ac (25 ha).....  63 ac (25 ha).....  0 ac (0 ha).
     Canyon.
    2B. Sabre Springs...........  Private...........  1 ac (<1 ha)......  1 ac (<1 ha)......  0 ac (0 ha).
                                  State/Local.......  51 ac (21 ha).....  51 ac (21 ha).....  0 ac (0 ha).
    2C. Sycamore Canyon.........  Private...........  30 ac (12 ha).....  30 ac (12 ha).....  0 ac (0 ha).
                                  State/Local.......  276 ac (112 ha)...  276 ac (112 ha)...  0 ac (0 ha).
    2D. Slaughterhouse Canyon...  Private...........  77 ac (31 ha).....  77 ac (31 ha).....  0 ac (0 ha).
Unit 3: Viejas Mountain and
 Poser Mountain:
    3A. Viejas Mountain.........  Private...........  32 ac (13 ha).....  32 ac (13 ha).....  0 ac (0 ha).
    3B. Viejas Mountain.........  Private...........  141 ac (57 ha)....  141 ac (57 ha)....  0 ac (0 ha).

[[Page 50469]]

 
                                  Federal...........  52 ac (21 ha).....  0 ac (0 ha).......  52 ac (21 ha).
    3C. Viejas Mountain.........  Federal...........  276 ac (112 ha)...  0 ac (0 ha).......  276 ac (112 ha).
    3D. Viejas Mountain.........  Private...........  50 ac (20 ha).....  0 ac (0 ha).......  50 ac (20 ha).
                                  Federal...........  32 ac (13 ha).....  0 ac (0 ha).......  32 ac (13 ha).
    3E. Poser Mountain..........  Federal...........  34 ac (14 ha).....  0 ac (0 ha).......  34 ac (14 ha).
    3F. Poser Mountain..........  Federal...........  155 ac (63 ha)....  0 ac (0 ha).......  155 ac (63 ha).
Unit 4: Southern San Diego
 County:
    4A. McGinty Mountain........  Private...........  18 ac (7 ha)......  18 ac (7 ha)......  0 ac (0 ha).
                                  Federal...........  2 ac (1 ha).......  0 ac (0 ha).......  2 ac (1 ha).
    4B. McGinty Mountain........  Private...........  141 ac (57 ha)....  141 ac (57 ha)....  0 ac (0 ha).
                                  State/Local.......  7 ac (3 ha).......  7 ac (3 ha).......  0 ac (0 ha).
    4C. McGinty Mountain........  Private...........  27 ac (11 ha).....  27 ac (11 ha).....  0 ac (0 ha).
                                  Federal...........  1 ac (<1 ha)......  0 ac (0 ha).......  1 ac (<1 ha).
    4D. Hollenbeck Canyon.......  Private...........  23 ac (9 ha)......  23 ac (9 ha)......  0 ac (0 ha).
                                  State Local.......  61 ac (25 ha).....  61 ac (25 ha).....  0 ac (0 ha).
                                 -------------------------------------------------------------------------------
        Total...................  ..................  1,748 ac (707 ha)   1,077 ac (435 ha)   671 ac (272 ha) *.
                                                       *.                  *.
----------------------------------------------------------------------------------------------------------------
* Values in this table may not sum due to rounding and the conversion of values from acres to hectares.

Unit Descriptions

Unit 1: Northern San Diego County

    Unit 1 is located in northern San Diego County, California. The 
area was occupied at the time of listing, is currently occupied, and 
contains the features essential to the conservation of Acanthomintha 
ilicifolia that may require special management considerations or 
protection for A. ilicifolia. The habitat in Unit 1 is gently sloping 
and occurs in the north coastal portion of San Diego County. The 
habitat included in this unit provides for the conservation of 
populations of this species that are at the lowest elevations where 
this species is found. These areas represent coastal terrace terrain 
and, therefore, are edaphically and ecologically distinct from the 
other units of critical habitat (subunit 1A) (see ``Criteria Used to 
Identify Critical Habitat'' section criterion 1). This unit contains 
some of the most stable populations of A. ilicifolia (subunits 1B and 
1C) (see ``Criteria Used to Identify Critical Habitat'' section 
criterion 3). Below, we present a brief description of subunits 
designated as critical habitat in this unit.
Subunit 1A, Palomar Airport
    Subunit 1A is located in Carlsbad, California, northeast of the 
intersection of Palomar Airport Road and El Camino Real. Subunit 1A 
consists of 60 ac (24 ha) of land owned by the County of San Diego. 
Subunit 1A meets our selection criteria because it supports a 
population on a unique soil type (see ``Criteria Used to Identify 
Critical Habitat'' section criterion 1). This is the only area where A. 
ilicifolia is still known to occupy calcareous clay soils. The features 
essential to the conservation of the species in this subunit may 
require special management considerations or protection to address 
threats from exotic plant species and unauthorized recreational 
activities.
    A portion of the land that meets the definition of critical habitat 
in this area (2 ac (1 ha)) is covered by the Carlsbad HMP of the San 
Diego MHCP. We excluded the portion of critical habitat covered by the 
Carlsbad HMP from critical habitat because we determined the benefits 
of excluding these lands outweigh the benefits of including these lands 
in a critical habitat designation. Furthermore, exclusion of these 
lands will not result in the extinction of this species (see Table 3 
and ``Exclusions Under Section 4(b)(2) of the Act'' section of this 
final rule for a detailed discussion of this exclusion).
Subunit 1B, Southeast Carlsbad
    Subunit 1B is located in Carlsbad, California, east of Calle Acervo 
and west of Paseo Esmerado. All lands within this subunit (57 ac (23 
ha)) are covered by the Carlsbad HMP of the San Diego MHCP. We excluded 
the lands covered by the Carlsbad HMP under the MHCP in this subunit 
because we determined that the benefits of excluding these lands 
outweigh the benefits of including these lands in a critical habitat 
designation. Furthermore, exclusion of these lands will not result in 
the extinction of this species (see Table 3 and ``Exclusions Under 
Section 4(b)(2) of the Act'' section of this final rule for a detailed 
discussion of this exclusion).
Subunit 1C, Manchester
    Subunit 1C is located in Encinitas, California, northeast of the 
intersection of Manchester Avenue and South El Camino Real. Subunit 1C 
consists of 9 ac (4 ha) of private land. Subunit 1C meets our selection 
criteria because it supports one of the most stable populations of 
Acanthomintha ilicifolia (criterion 3). The features essential to the 
conservation of the species in this subunit may require special 
management considerations or protection to address threats from exotic 
plant species and unauthorized recreational activities.
    The majority of the land that meets the definition of critical 
habitat in this area (70 ac (28 ha)) is in the Manchester Avenue 
Mitigation Bank. The Manchester Avenue Mitigation Bank is owned and 
managed by the Center for Natural Lands Management (CNLM). There is 
long-term management in place on this site to conserve several 
sensitive species, including Acanthomintha ilicifolia (Spiegelberg 
2005, p. 1). We excluded the portion of critical habitat covered by the 
Manchester Habitat Conservation Area Management Plan (Spiegelberg 2005) 
from critical habitat because we determined that the benefits of 
excluding these lands outweigh the benefits of including these lands in 
a critical habitat designation; exclusion of these lands will not 
result in the extinction of this species (see Table 3 and ``Exclusions 
Under Section 4(b)(2)

[[Page 50470]]

of the Act'' section of this final rule for a detailed discussion of 
this exclusion).

Unit 2: Central San Diego County

    Unit 2 is located in an east-west line starting in the County of 
San Diego on private land east of the Sycamore Canyon/Goodan Ranch 
Preserve (subunit 2D), occurring on County-owned open space in the 
Sycamore Canyon/Goodan Ranch Preserve (subunit 2C), occurring on City 
of San Diego-owned land in Los Pe[ntilde]asquitos Canyon near the 
border or the City of San Diego and the City of Poway (subunit 2B), and 
occurring in Pe[ntilde]asquitos Canyon Preserve (subunit 2A). The unit 
was occupied at the time of listing, is currently occupied, and 
contains the features essential to the conservation of Acanthomintha 
ilicifolia that may require special management considerations or 
protection for A. ilicifolia. This unit contains some of the largest 
populations of A. ilicifolia (subunits 2C and 2D) (criterion 2) and 
some of the most stable populations of A. ilicifolia (subunits 2A and 
2B) (criterion 3). All lands that meet the definition of critical 
habitat in Unit 2 are covered by either the City of San Diego subarea 
plan (subunits 2A and 2B) or the County of San Diego subarea plan 
(subunits 2C and 2D) under the San Diego MSCP and are excluded from the 
designation. We determined that the benefits of excluding these lands 
outweigh the benefits of including these lands in the designation and 
that exclusion of these lands will not result in the extinction of this 
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the 
Act'' section of this final rule for a detailed discussion of this 
exclusion).

Unit 3: Viejas Mountain and Poser Mountain

    Unit 3 is located in San Diego County, California, on Viejas 
Mountain and Poser Mountain. The area was occupied at the time of 
listing, is currently occupied, and contains the features essential to 
the conservation of Acanthomintha ilicifolia that may require special 
management considerations or protection for A. ilicifolia. Unit 3 is 
divided into six subunits, five of which are designated as critical 
habitat. Due to the proximity of the occurrences in this area and the 
fact that the habitat is not fragmented by any manmade barriers, we 
consider these occurrences to be a single population of A. ilicifolia. 
Unit 3 is designated as critical habitat because it supports one of the 
largest recorded populations of the species (criterion 2). This 
population is estimated to have greater than 25,000 plants based on the 
maximum number of plants observed at the different CNDDB element 
occurrences (EO 12, 6,650 plants in 1991 (subunit 3F); EO 50, 5,600 
plants in 1994 (subunit 3B); EO 51, 8,300 plants in 2003 (subunit 3C); 
EO 62, 1,115 plants in 2000 (subunit 3C); EO 73, 8,750 plants in 1997; 
and EO 74, 2,000 plants in 2000 (subunit 3E)). The habitat in unit 3 is 
more mountainous than the other units and provides for the conservation 
of this species at the highest elevations where this species is found. 
Therefore, this unit is ecologically distinct from the other units of 
critical habitat and provides for the largest population of A. 
ilicifolia as measured by the area occupied by the species. Below, we 
present a brief description of subunits designated as critical habitat 
in this unit.
Subunit 3A, Viejas Mountain
    Subunit 3A is located east of Peutz Valley Road on the western 
flank of Viejas Mountain. All lands that meet the definition of 
critical habitat in this area (32 ac (13 ha)) are covered by the County 
of San Diego subarea plan of the San Diego MSCP. We excluded the lands 
covered by the County of San Diego subarea plan in this subunit because 
we determined that the benefits of excluding these lands outweigh the 
benefits of including these lands in a critical habitat designation. 
Furthermore, exclusion of these lands will not result in the extinction 
of this species (see Table 3 and ``Exclusions Under Section 4(b)(2) of 
the Act'' section of this final rule for a detailed discussion of this 
exclusion).
Subunit 3B, Viejas Mountain
    Subunit 3B is located east of Alpine, California, and north of 
Interstate 8 on the western slope Viejas Mountain. Subunit 3B consists 
of 52 ac (21 ha) of land in the Cleveland National Forest (CNF) owned 
by the U.S. Forest Service (USFS). This subunit was occupied by the 
species at the time of listing and is currently occupied. Subunit 3B 
meets our selection criteria because this subunit is part of one of the 
largest recorded populations of Acanthomintha ilicifolia (criterion 2). 
The features essential to the conservation of the species in this 
subunit may require special management considerations or protection to 
address the threat from exotic plant species and recreational 
activities.
    The privately owned lands that meet the definition of critical 
habitat in this area (141 ac (57 ha)) are covered by the County of San 
Diego subarea plan of the San Diego MSCP. We excluded the lands covered 
by the County of San Diego subarea plan in this subunit because we 
determined that the benefits of excluding these lands outweigh the 
benefits of including these lands in a critical habitat designation and 
that exclusion of these lands will not result in the extinction of this 
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the 
Act'' section of this final rule for a detailed discussion of this 
exclusion).
Subunit 3C, Viejas Mountain
    Subunit 3C is located east of Alpine, California, and north of 
Interstate 8 on southern slope of Viejas Mountain. Subunit 3C consists 
of 276 ac (112 ha) of land in the CNF owned by the USFS. This subunit 
was occupied by the species at the time of listing and is currently 
occupied. Subunit 3C meets our selection criteria because this subunit 
is part of one of the largest recorded populations of Acanthomintha 
ilicifolia (criterion 2). The features essential to the conservation of 
the species in this subunit may require special management 
considerations or protection to address the threat from exotic plant 
species and recreational activities.
Subunit 3D, Viejas Mountain
    Subunit 3D is located east of Alpine, California, and north of 
Interstate 8 on the eastern slope of Viejas Mountain. Subunit 3D 
consists of 32 ac (13 ha) of land in the CNF owned by the USFS and 50 
ac (20 ha) of private land. This subunit was occupied by the species at 
the time of listing and is currently occupied. Subunit 3D meets our 
selection criteria because this subunit is part of one of the largest 
recorded populations of Acanthomintha ilicifolia (criterion 2). The 
features essential to the conservation of the species in this subunit 
may require special management considerations or protection to address 
the threat from exotic plant species and recreational activities.
Subunit 3E, Poser Mountain
    Subunit 3E is located east of Alpine, California, and north of 
Interstate 8 on western slope of Poser Mountain. Subunit 3E consists of 
34 ac (14 ha) of land in the CNF owned by the USFS. This subunit was 
occupied by the species at the time of listing and is currently 
occupied. Subunit 3E meets our selection criteria because this subunit 
is part of one of the largest recorded populations of Acanthomintha 
ilicifolia (criterion 2). The features essential to the conservation of 
the species in this subunit may require

[[Page 50471]]

special management considerations or protection to address the threat 
from exotic plant species and recreational activities.
Subunit 3F, Poser Mountain
    Subunit 3F is located east of Alpine, California, and north of 
Interstate 8 on southern slope of Poser Mountain. Subunit 3F consists 
of 155 ac (63 ha) of land in the CNF owned by the USFS. This subunit 
was occupied by the species at the time of listing and is currently 
occupied. Subunit 3F meets our selection criteria because this subunit 
is part of one of the largest recorded populations of Acanthomintha 
ilicifolia (criterion 2). The features essential to the conservation of 
the species in this subunit may require special management 
considerations or protection to address the threat from exotic plant 
species and recreational activities.

Unit 4: Southern San Diego County

    Unit 4 is located in southern San Diego County, California near the 
City of Jamul. The area was occupied at the time of listing, is 
currently occupied, and contains the features essential to the 
conservation of Acanthomintha ilicifolia that may require special 
management considerations or protection. This critical habitat unit 
contains some of the largest populations of A. ilicifolia (subunit 4D) 
(criterion 2) and some of the most stable populations of A. ilicifolia 
(subunits 4A, 4B, and 4C) (criterion 3). The habitat for A. ilicifolia 
in southern San Diego County is located in proximity to rural 
residential development and in relatively undeveloped areas. Below, we 
present a brief description of subunits designated as critical habitat 
in this unit.
Subunits 4A and 4C, McGinty Mountain
    Subunits 4A and 4C are located east of Jamul, California, on the 
southwestern slope of McGinty Mountain. The land designated is part of 
the San Diego National Wildlife Refuge (SDNWR) and is owned by the 
Service. We are designating 3 ac (1 ha) of critical habitat in subunits 
4A and 4C for Acanthomintha ilicifolia. These subunits were occupied by 
the species at the time of listing and are currently occupied. Subunits 
4A and 4C meet our selection criteria because these subunits are part 
of one of the most stable populations of A. ilicifolia (criterion 3). 
The features essential to the conservation of the species in subunits 
4A and 4C may require special management considerations or protection 
to address the threat from exotic plant species and recreational 
activities.
    The non-Federal lands that meet the definition of critical habitat 
in this area (18 ac (7 ha) in subunit 4A and 27 ac (11 ha) in subunit 
4C) are covered by the County of San Diego subarea plan of the San 
Diego MSCP. We excluded the lands covered by the County of San Diego 
subarea plan under the MSCP in this subunit because we have determined 
that the benefits of excluding these lands outweigh the benefits of 
including these lands in a critical habitat designation and that 
exclusion of these lands will not result in the extinction of this 
species (see Table 3 and ``Exclusions Under Section 4(b)(2) of the 
Act'' section of this final rule for a detailed discussion of this 
exclusion).
Subunit 4B, McGinty Mountain
    All of the lands in subunit 4B that meet the definition of critical 
habitat in this area (148 ac (60 ha)) are non-Federal and are covered 
by the County of San Diego subarea plan of the San Diego MSCP. We 
excluded the lands covered by the County of San Diego subarea plan 
under the MSCP in this subunit because we determined that the benefits 
of excluding these lands outweigh the benefits of including these lands 
in the critical habitat designation, and that exclusion of these lands 
will not result in the extinction of this species (see Table 3 and 
``Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion of this exclusion).
Subunit 4D, Hollenbeck Canyon
    All of the lands in subunit 4D that meet the definition of critical 
habitat in this area (84 ac (34 ha)) are non-Federal and are covered by 
the County of San Diego subarea plan of the San Diego MSCP. We excluded 
the lands in this subunit because we determined that the benefits of 
excluding these lands outweigh the benefits of including these lands in 
a critical habitat designation, and that exclusion of these lands will 
not result in the extinction of this species (see Table 3 and 
``Exclusions Under Section 4(b)(2) of the Act'' section of this final 
rule for a detailed discussion of this exclusion).
    Table 3 below provides approximate areas (ac (ha)) of lands that 
meet the definition of critical habitat, but are excluded from this 
final critical habitat designation. Table 3 provides our reason for the 
exclusion. Also see the ``Exclusions Under Section 4(b)(2) of the Act'' 
section of this final rule for detailed discussion of the exclusions 
listed in Table 3.

                Table 3--Exclusions Under Section 4(b)(2) of the Act by Critical Habitat Subunit
----------------------------------------------------------------------------------------------------------------
                                    Reason for exclusion        Areas meeting the
    Critical habitat unit and      under  section 4(b)(2)     definition of critical      Areas excluded from
       subunit description               of the act                  habitat               critical  habitat
----------------------------------------------------------------------------------------------------------------
Unit 1: Northern San Diego
 County:
    1A. Palomar Airport *.......  Carlsbad HMP under the    62 ac (25 ha)............  2 ac (1 ha).*
                                   MHCP.
    1B. Southeast Carlsbad......  Carlsbad HMP under the    57 ac (23 ha)............  57 ac (23 ha).
                                   MHCP.
    1C. Manchester *............  Manchester Avenue         79 ac (32 ha)............  70 ac (28 ha).*
                                   Mitigation Bank.
Unit 2: Central San Diego
 County:
    2A. Los Pe[ntilde]asquitos    City of San Diego         63 ac (25 ha)............  63 ac (25 ha).
     Canyon.                       subarea plan under the
                                   MSCP.
    2B. Sabre Springs...........  City of San Diego         52 ac (21 ha)............  52 ac (21 ha).
                                   subarea plan under the
                                   MSCaP.
    2C. Sycamore Canyon.........  County of San Diego       306 ac (124 ha)..........  306 ac (124 ha).
                                   subarea plan under the
                                   MSCP.
    2D. Slaughterhouse Canyon...  County of San Diego       77 ac (31 ha)............  77 ac (31 ha).
                                   subarea plan under the
                                   MSCP.
Unit 3: Viejas Mountain and
 Poser Mountain:
    3A. Viejas Mountain.........  County of San Diego       32 ac (13 ha)............  32 ac (13 ha).
                                   subarea plan under the
                                   MSCP.
    3B. Viejas Mountain *.......  County of San Diego       193 ac (78 ha)...........  141 ac (57 ha).*
                                   subarea plan under the
                                   MSCP.
Unit 4: Southern San Diego
 County:

[[Page 50472]]

 
    4A. McGinty Mountain *......  County of San Diego       20 ac (8 ha).............  18 ac (7 ha).*
                                   subarea plan under the
                                   MSCP.
    4B. McGinty Mountain........  County of San Diego       148 ac (60 ha)...........  148 ac (60 ha).
                                   subarea plan under the
                                   MSCP.
    4C. McGinty Mountain *......  County of San Diego       28 ac (11 ha)............  27 ac (11 ha).*
                                   subarea plan under the
                                   MSCP.
    4D. Hollenbeck Canyon.......  County of San Diego       84 ac (34 ha)............  84 ac (34 ha).
                                   subarea plan under the
                                   MSCP.
----------------------------------------------------------------------------------------------------------------
* A portion of these subunits have been designated as critical habitat.

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 destroy or adversely modify 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 (or retain the current ability for the primary constituent 
elements to be functionally established) to serve its intended 
conservation role for the species.
    If a species is listed or critical habitat is designated, section 
7(a)(2) of the Act requires Federal agencies to ensure that activities 
they authorize, fund, or carry out are not likely to jeopardize the 
continued existence of the species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. As a result of this consultation, 
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 may affect, and 
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:
    <bullet> Can be implemented in a manner consistent with the 
intended purpose of the action;
    <bullet> Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction;
    <bullet> Are economically and technologically feasible; and
    <bullet> 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 Acanthomintha ilicifolia or its 
designated critical habitat require section 7 consultation under the 
Act. Activities on State, Tribal, local, or private lands requiring a 
Federal permit (such as a permit from the 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 subject to the section 7 consultation 
process. Federal actions not affecting listed species or critical 
habitat, and actions on State, Tribal, local or private lands that are 
not federally funded, authorized, or permitted, do not require section 
7(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, or would retain its current ability 
for the primary constituent elements to be functionally established. 
Activities that may destroy or adversely modify critical habitat are 
those that alter the PCE to an extent that appreciably reduces the 
conservation value of critical habitat for Acanthomintha ilicifolia. 
Generally, the conservation role of A. ilicifolia critical habitat 
units is to support viable core populations 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 those activities involving a Federal action that may destroy or 
adversely modify such habitat, or those activities that may be affected 
by such designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and

[[Page 50473]]

therefore should result in consultation for Acanthomintha ilicifolia 
include, but are not limited to:
    (1) Actions that disturb or remove the clay soils (PCE 1(c)) within 
a subunit of critical habitat. Such activities include, but are not 
limited to, clearing areas for development and roads, creation of 
trails, and installation of pipelines or other underground 
infrastructure. These activities could eliminate or reduce the habitat 
necessary for the growth and reproduction of Acanthomintha ilicifolia.
    (2) Actions that introduce exotic plant species or alter the 
natural habitat in a way that increases the likelihood for the invasion 
of exotic plant species (PCE 1(d)). Such activities include, but are 
not limited to, the introduction of fill dirt to development sites 
adjacent to Acanthomintha ilicifolia critical habitat, grading areas 
for agriculture, clearing native vegetation, and the use of mountain 
bikes and off-highway vehicles. These activities could create space for 
populations of exotic plants to grow and then invade A. ilicifolia 
habitat or bring the seeds of exotic plants into A. ilicifolia habitat, 
thus filling the open space needed for the growth and reproduction (PCE 
1(b)) of this species with exotic plant competitors.
    (3) Actions that alter the hydrology of critical habitat subunits. 
Such activities include, but are not limited to, runoff from developed 
streets, runoff from irrigated landscapes, and increased flow or 
erosion from storm drains. These activities could alter the timing and 
amount of water that Acanthomintha ilicifolia plants receive, altering 
their phenology and fecundity. These activities could also cause the 
erosion of the clay soils (PCE 1(b and c)) that are necessary for the 
growth of A. ilicifolia. Please see the ``Special Management 
Considerations or Protection'' section for a more detailed discussion 
on the impacts of these actions to the listed species.
    We consider all of the subunits designated as critical habitat, as 
well as those that are excluded from the final designation, to contain 
the features essential to the conservation of Acanthomintha ilicifolia. 
All subunits are within the geographic area occupied by the species at 
the time of listing and are currently occupied by A. ilicifolia (see 
``Summary of Changes From Proposed Rule'' section of this final rule 
and the proposed rule (72 FR 11946; March 14, 2007) for more 
information on the occupied subunits). Federal agencies already consult 
with us on activities in areas occupied by A. ilicifolia or if the 
species may be affected by the action to ensure that their actions do 
not jeopardize the continued existence of A. ilicifolia.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
and 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.
    Under section 4(b)(2) of the Act, in considering whether to exclude 
a particular area from the designation, we must identify the benefits 
of including the area in the designation, identify the benefits of 
excluding the area from the designation, and determine whether the 
benefits of exclusion outweigh the benefits of inclusion. If based on 
this analysis we make this determination, then we can exclude the area 
only if such exclusion would not result in the extinction of the 
species.
    In the following sections, we address a number of general issues 
that are relevant to the exclusions we consider. Additionally, the 
Service conducted a draft economic analysis (draft EA) of the impacts 
of the proposed critical habitat designation and related factors. The 
draft EA was made available for public review and comment from November 
27, 2007, to December 27, 2007 (72 FR 66122). We then reopened the 
comment period on the draft EA from May 13, 2008, to June 12, 2008 (73 
FR 27483). We did not receive any comments on the draft EA during these 
open comment periods. Based on the draft EA, the proposed critical 
habitat, and the information in this revised final designation of 
critical habitat, we excluded areas from critical habitat under the 
provisions of section 4(b)(2) of the Act and our implementing 
regulations at 50 CFR 424.19; however, we did not exclude any areas for 
economic reasons.

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 or 
protected, could provide for the survival and recovery of the species.
    The identification of areas that contain features essential for the 
conservation of the species, which if managed or protected, will 
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 for 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 to the conservation of the species. The 
designation process includes peer review and public comment on the 
identified physical and biological features and 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 be included in the Service's 
determination of essential habitat.
    The consultation provisions under section 7(a)(2) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on actions that may affect 
critical habitat and must avoid destroying or adversely modifying 
critical habitat. Federal agencies must also consult with us on actions 
that may affect a listed species and refrain from undertaking actions 
that are likely to jeopardize the continued existence of the species. 
Thus, 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

[[Page 50474]]

the species. However, the regulatory standard is different, as the 
jeopardy analysis looks at the action's impact on survival and recovery 
of the species and 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 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 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 to the conservation of the 
species are not appreciably reduced. Critical habitat designation 
alone, however, does not require private property owners to undertake 
specific steps toward 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 the 
Service concurs 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 formal consultation is initiated. Formal consultation concludes 
with a biological opinion issued by the Service 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 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to primary constituent elements, 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 is 
initiated under 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 institute proactive actions over the lands they 
encompass and are 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 regulatory benefit of critical 
habitat is low when compared to the conservation benefit that can be 
achieved through implementing Habitat Conservation Plans (HCPs) under 
section 10 of the Act or other habitat management plans. The 
conservation acheived through such plans is typically greater than what 
we achieve through multiple site-by-site, project-by-project, section 7 
consultations involving consideration of critical habitat. Management 
plans commit resources to implement long-term management and protection 
for particular habitat for at least one and possibly other listed or 
sensitive species. Section 7 consultations only commit Federal agencies 
to preventing adverse modification of critical habitat caused by the 
particular project, and they are not committed to provide conservation 
or long-term benefits to areas not affected by the proposed action. 
Thus, implementation of an HCP or management plan that incorporates 
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 Acanthomintha ilicifolia. 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 informs State agencies and local governments about areas 
that could be conserved under State laws or local ordinances.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without cooperation of non-Federal landowners. More than 60 percent of 
the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002). 
Stein et al. (1995) found that only about 12 percent of listed species 
were found almost exclusively on Federal lands (90 to 100 percent of 
their known occurrences restricted to Federal lands) and that 50 
percent of federally listed species are not known to occur on Federal 
lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners are 
essential to understanding the status of species on non-Federal lands, 
and necessary for us to implement recovery actions such as 
reintroducing listed species, habitat restoration, and habitat 
protection.
    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 non-Federal 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 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on a view that 
we can achieve greater species conservation on non-Federal land through 
such partnerships than we can through regulatory methods (61 FR 63854; 
December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of encouraging endangered species to their property, and 
there is mounting

[[Page 50475]]

evidence that some regulatory actions by the Federal Government, while 
well-intentioned and required by law, can (under certain circumstances) 
have unintended negative consequences for the conservation of species 
on private lands (Wilcove et al. 1996; Bean 2002; Conner and Mathews 
2002; James 2002; Koch 2002; Brook et al. 2003). Many landowners fear a 
decline in their property value due to real or perceived restrictions 
on land-use options where threatened or endangered species are found. 
Consequently, harboring endangered species is viewed by many landowners 
as a liability. 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 negative outcome is 
greatly amplified in situations where active management measures (such 
as reintroduction, fire management, and 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 than critical habitat alone.
    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 partnerships or 
voluntary conservation efforts can often be high.

Benefits of Excluding Lands With HCPs or Other Approved Management 
Plans

    The benefits of excluding lands with HCPs or other approved long-
term management plans from critical habitat designation include 
relieving landowners, communities, and counties of any additional 
regulatory burden that might be imposed by critical habitat. Most HCPs 
and other conservation plans take years to develop, and upon 
completion, are consistent with recovery objectives for listed species 
that are covered within the plan area. Many also provide conservation 
benefits to unlisted sensitive species. Although the Act does not 
prohibit the take of listed plant species (so there is no requirement 
to cover listed plant species in an HCP), we encourage non-Federal 
public and private landowners to include protections for listed plants 
in their plans. Imposing an additional regulatory review as a result of 
the designation of critical habitat of a listed plant species, in 
particular, may undermine our efforts to encourage inclusion of plant 
species in HCPs and undermine other conservation efforts and 
partnerships as well. 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 for a plant species 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 or elect to exclude the plant 
species from the plan, in part because of the strength of the perceived 
additional regulatory compliance that such designation would entail. 
The time and cost of regulatory compliance for a critical habitat 
designation do not have to be quantified for them to be perceived as 
additional Federal regulatory burden sufficient to discourage continued 
participation in developing plans targeting listed species' 
conservation.
    A related benefit of excluding lands covered by approved HCPs and 
management plans that cover listed plant species 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. Designating lands within 
approved management plan areas as critical habitat would likely have a 
negative effect on our ability to establish new partnerships to develop 
these plans, particularly plans that address landscape-level 
conservation of plant species and habitats. By excluding these lands, 
we preserve our current partnerships and encourage additional 
conservation actions in the future.
    Both HCPs and Natural Communities Conservation Plan (NCCP)-HCP 
applications require consultation, which would review the effects of 
all HCP-covered activities that might adversely impact the species 
under a jeopardy standard, including possibly significant habitat 
modification, even without the critical habitat designation. 
Additionally, all other Federal actions that may affect the listed 
species still require consultation under section 7(a)(2) of the Act, 
and we review these actions for possibly significant habitat 
modification in accordance with the jeopardy standard under Section 7.
    The information provided in the previous section applies to all the 
following discussions of benefits of inclusion or exclusion of critical 
habitat.

Areas Considered for Exclusion Under Section 4(b)(2) of the Act

    At the request of the USFS, we evaluated the appropriateness of 
excluding Federal lands in the CNF from the final designation of 
critical habitat for Acanthomintha ilicifolia under section 4(b)(2) of 
the Act based on management provided under the USFS LMP and 
specifically under the Species Management Guide developed for the CNF 
(USFS 1991). As indicated in our response to Comment 13 in the ``Public 
Comments'' section above, we have concluded based on the record before 
us not to exclude Forest Service lands in this instance. Therefore, as 
previously discussed we are designating approximately 549 ac (222 ha) 
of Forest Service lands in subunits 3B, 3C, 3D, 3E, and 3F as critical 
habitat for A. ilicifolia.

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

    After considering the following areas under section 4(b)(2) of the 
Act, we are excluding them from the critical habitat designation for 
Acanthomintha ilicifolia. We are excluding approximately 59 ac (24 ha) 
of non-Federal lands from the A. ilicifolia critical habitat 
designation in subunits 1A and 1B that are covered by the Carlsbad HMP 
within the San Diego Multiple Species Habitat Program (MHCP) plan area. 
We are excluding approximately 948 ac (383 ha) of non-Federal lands 
from the A. ilicifolia critical habitat designation in subunits 2A; 2B; 
2C; 2D; 3A; 3B; 4A; 4B; 4C; and

[[Page 50476]]

4D that are within San Diego Multiple Species Conservation Program 
(MSCP) plan area. These lands are covered by the City of San Diego 
subarea plan under the MSCP and the County of San Diego subarea plan 
under the MSCP. Additionally, we are excluding 70 ac (28 ha) of private 
land from the A. ilicifolia critical habitat designation in subunit 1C 
that is within the Manchester Avenue Mitigation Bank. A detailed 
analysis of our exclusion of these lands under section 4(b)(2) of the 
Act is provided in the paragraphs below.
    We excluded these areas because we believe that:
    (1) Their value for conservation will be preserved for the 
foreseeable future by existing protective actions; or
    (2) They are appropriate for exclusion under the ``other relevant 
impact'' provisions of section 4(b)(2) of the Act.
    In the paragraphs below, we provide a detailed analysis of our 
exclusion of these lands under section 4(b)(2) of the Act.

Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of 
the Act

    In reviewing approved HCPs for potential exclusion under section 
4(b)(2) of the Act, we consider (in addition to the general partnership 
relationships identified above) whether the plan provides for 
protection and appropriate management, if necessary, of essential 
habitat within the plan area and whether the plan incorporates 
conservation management strategies and actions consistent with 
currently accepted principles of conservation biology.
    We believe the framework plans and associated subarea plans 
discussed in the paragraphs below fulfill these criteria. Therefore, we 
are excluding lands covered by these subarea plans that provide for the 
conservation of Acanthomintha ilicifolia from the final designation of 
critical habitat.

Carlsbad HMP Under the San Diego Multiple Habitat Conservation Program 
(MHCP)

    The San Diego MHCP is a comprehensive, multi-jurisdictional 
planning program designed to create, manage, and monitor an ecosystem 
preserve in northwestern San Diego County. The MHCP is a framework plan 
that has been in place for 5 years. It is also a regional subarea plan 
under the State of California's Natural Communities Conservation Plan 
(NCCP) program and was developed in cooperation with California 
Department of Fish and Game (CDFG). The MHCP is designed to be 
implemented through approved individual subarea plans. The MHCP 
preserve system is intended to protect viable populations of native 
plant and animal species and their habitats in perpetuity, while 
accommodating continued economic development and quality of life for 
residents of northern San Diego County. The MHCP includes an 
approximately 112,000-ac (45,324-ha) study area within the cities of 
Carlsbad, Encinitas, Escondido, San Marcos, Oceanside, Vista, and 
Solana Beach.
    Under the MHCP framework plan, the majority of all known 
Acanthomintha ilicifolia populations fall within Focused Planning Areas 
(FPA) (core areas and linkages important for conservation of sensitive 
species) and will be conserved at levels of 95 to 100 percent. 
According to the MHCP, 91 percent of the major populations and critical 
locations of Acanthomintha ilicifolia (as identified in the MHCP) in 
the study area will be conserved under the FPA design. In addition to 
the conserved populations, an estimated 3,403 acres of potentially 
suitable habitat will be conserved as a result of the existing preserve 
design and preserve policies. Any populations that fall outside of FPAs 
will be conserved at a minimum 80 percent level based on the Narrow 
Endemic Plant Policy. The Narrow Endemic Policy requires the 
conservation of new populations of narrow endemic species (80 percent 
outside of FPAs) and mitigation for unavoidable impacts as well as 
management practices designed to achieve no net loss of narrow endemic 
populations. Additionally, cities that apply for subarea permits cannot 
permit more than 5 percent gross cumulative loss of narrow endemic 
populations or occupied acreage within the FPAs and no more than 20 
percent cumulative loss of narrow endemic locations, population 
numbers, or occupied acreage outside of FPAs (AMEC Earth and 
Environmental, Inc. 2003).
    The City of Carlsbad received a permit on their individual subarea 
plan under the MHCP framework plan on November 9, 2004. Approximately 2 
ac (1 ha) of land in subunit 1A and all of the approximately 57 ac (23 
ha) of land in subunit 1B are protected by the Carlsbad subarea plan 
also known as the Carlsbad Habitat Management Plan (HMP). Acanthomintha 
ilicifolia is a conditionally covered species under the Carlsbad HMP. 
``Conditional'' coverage means that the City of Carlsbad receives 
coverage for this species as identified in the associated biological 
opinion, as long as the City complies with the conservation measures 
outlined in the HMP. Under the HMP, coverage for Acanthomintha 
ilicifolia is also conditional until the City of San Marcos completes 
their subarea plan under the MHCP. However, in developing this critical 
habitat rule we did not identify any lands in San Marcos that meet the 
definition of critical habitat as described in the ``Criteria Used to 
Identify Critical Habitat'' section. Therefore, we believe it is 
appropriate to exclude essential habitat protected by the Carlsbad HMP 
where the City of Carlsbad has demonstrated compliance with the 
conservation measures for A. ilicifolia required to be implemented by 
the City under the HMP.
    Consistent with the framework provided under the MHCP, the Carlsbad 
HMP contains requirements to conserve and adaptively manage 
Acanthomintha ilicifolia habitats and provide for the conservation of 
this species' PCE, thereby contributing to the recovery of this 
species. The Carlsbad HMP will provide management and monitoring for A. 
ilicifolia at several sites, including approximately 2 ac (1 ha) of 
habitat in subunit 1A managed by the Center for Natural Lands 
Management. All of the land in subunit 1A addressed by the Carlsbad HMP 
is actively managed; activities that benefit A. ilicifolia in subunit 
1A include mapping and census projects, removal of nonnative invasive 
species, and the restoration of areas degraded by past human use 
(Tierra Data, Inc. 2005, pp. 34-63; Carlsbad HMP 2004, p. D-97). All of 
the approximately 57 ac (23 ha) of land in subunit 1B was preserved in 
perpetuity prior to the creation of the Carlsbad HMP. These lands are 
signed and fenced and are a component of Carlsbad's habitat preserve. 
Management of the conserved land in subunit 1B remains the 
responsibility of the private owner of the open space area; however, 
the future management of this area will be bolstered by the inclusion 
of this area in the Carlsbad HMP. The management approaches developed 
for Acanthomintha ilicifolia in other areas will be easily applied to 
subunit 1B because the area is part of the Carlsbad HMP.
    The Carlsbad HMP also incorporates many processes to ensure that 
the Service has an active role in proper implementation of the HCP. For 
example, Habitat Management Plans, reviewed and approved by the 
Service, must be developed for each preserve area within the Carlsbad 
HMP, and monitoring and management objectives must be established for 
each preserve. Progress towards meeting these objectives is measured 
through the submission of annual reports. There are also regular 
coordination meetings

[[Page 50477]]

between the Service and the City of Carlsbad to discuss on-going 
conservation issues. Under the Carlsbad HMP the City must account 
annually for the progress it is making in assembling conservation 
areas. The City is required to provide the Service with an annual 
report that includes, both by project and cumulatively, the habitat 
acreage destroyed and conserved within the HMP. This accounting process 
ensures that habitat conservation proceeds in rough proportion to 
habitat loss and is in compliance with the Carlsbad HMP and associated 
implementing agreement.
    All of the lands that meet the definition of critical habitat 
within the boundaries of the Carlsbad HMP are already conserved under 
the plan. Consistent with the Narrow Endemic Policy and FPA design of 
the MHCP framework plan, additional populations of A. ilicifolia beyond 
the two areas we identified that meet the definition of critical 
habitat are also conserved under Carlsbad's subarea plan. Conservation 
of these additional populations will contribute to the ultimate 
recovery of this species. Although not all areas placed in conservation 
are actively managed under the plan at this time, we believe the 
Carlsbad HMP will conserve A. ilicifolia within its boundaries because 
A. ilicifolia is one of the focus species for this plan and the City of 
Carlsbad has an interest to conserve this species throughout the 
Carlsbad HMP area. The extent of habitat preservation and management 
that has taken place due to implementation of the Carlsbad HMP since it 
was permitted in 2004 is significant, and demonstrates the City of 
Carlsbad's commitment to fully implement this HCP.
    In the 1998 final rule listing this species as threatened (63 FR 
54938; October 13, 1998), we identified habitat destruction and 
fragmentation from urban development; off-road vehicle activity; non-
native, invasive plant species; livestock trampling and grazing; and 
mining as primary threats to the species. The Carlsbad HMP incorporates 
conservation measures to address these threats into the management of 
its preserve area, which will include the entire preserve area 
including subunits 1A and 1B. The Carlsbad HMP provides protection and 
appropriate management for Acanthomintha ilicifolia, its habitat, and 
its PCE through implementation of conservation strategies that are 
consistent with generally accepted principles of conservation biology. 
The Carlsbad HMP preserves habitat that supports identified core 
populations of this species and provides for its recovery.

Benefits of Inclusion--Carlsbad HMP

    The inclusion of approximately 2 ac (1 ha) of land in subunit 1A 
and all of the approximately 57 ac (23 ha) of land in subunit 1B could 
be beneficial because it identifies lands to be managed for the 
conservation and recovery of Acanthomintha ilicifolia. The process of 
proposing and finalizing a critical habitat provided the Service with 
the opportunity to determine the features or PCEs essential for 
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 to the conservation of the species. The designation process 
includes peer review and public comment on the identified features and 
areas. This process is valuable to landowners 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. 
However, identification of important habitat for A. ilicifolia within 
the City of Carlsbad and efforts to conserve the species and its 
habitat were initiated through development of the Carlsbad HMP prior to 
the proposed critical habitat rule and will continue into the future.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts already in 
place or underway on the 2 ac (1 ha) of land in subunit 1A and all of 
the approximately 57 ac (23 ha) of land in subunit 1B that are 
protected under the Carlsbad HMP. The process of developing the MHCP 
and Carlsbad HMP has involved extensive public review and impute and 
the involvment of several Federal, state, and local government partners 
including (but not limited to): The City of Carlsbad; California 
Department of Fish and Game; the Service; and other Federal agencies. 
Therefore, the educational benefits of designating the private lands in 
Unit 1 (Pan Hot Springs Meadow) as critical habitat are minimal.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of designating lands as critical 
habitat. As discussed above, Federal agencies must consult with us on 
actions that may affect critical habitat and must avoid destroying or 
adversely modifying critical habitat. However, all of the approximately 
57 ac (23 ha) of land in subunit 1B that is being excluded is protected 
open space on private property, with no expected Federal nexus for 
future consultation for Acanthomintha ilicifolia. Therefore, 
designating this area as critical habitat is unlikely to provide a 
regulatory benefit under section 7(a) of the Act. The approximately 2 
ac (1 ha) of land in subunit 1A is also privately owned and protected 
from future development with no expected Federal nexus for future 
consultation; therefore, we do not anticipate a regulatory benefit 
result from designation of such lands.

Benefits of Exclusion--Carlsbad HMP

    The City of Carlsbad HMP provides substantial protection and 
management for Acanthomintha ilicifolia and its essential habitat 
features in contrast to designation of critical habitat, which only 
precludes destruction or adverse modification. Moreover, the 
educational benefits that result from critical habitat designation, 
including informing the public of areas that are necessary for the 
long-term conservation of the species, are already in place both as a 
result of material provided on our Web site and through public notice-
and-comment procedures required to establish the MHCP and the Carlsbad 
HMP. Finally, we have not identified a likely Federal nexus for future 
section 7 consultations on lands in subunit 1A and subunit 1B because 
the lands are privately owned and already protected from development; 
therefore, we do not anticipate a regulatory benefit from designation.
    In contrast to the lack of an appreciable benefit of including 
these lands as critical habitat, the exclusion of these lands from 
critical habitat will help preserve the partnerships that we developed 
with the City of Carlsbad in the development of the MHCP and Carlsbad 
subarea plan. As discussed above, many landowners perceive critical 
habitat as an unfair and unnecessary regulatory burden given the 
expense and time involved in developing and implementing complex 
regional and jurisdiction-wide HCPs, such as the MHCP and Carlsbad HMP. 
For these reasons, we believe that designating critical habitat has 
little benefit in the City of Carlsbad, and such minor benefit is 
outweighed by the benefit of maintaining partnerships with the City and 
private landowners covered by the Carlsbad HMP.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Carlsbad HMP

    We reviewed and evaluated the benefits of inclusion and the 
benefits of exclusion of lands covered by the Carlsbad HMP as critical 
habitat for Acanthomintha ilicifolia. Based on this evaluation, we find 
that the benefit of excluding lands in areas covered by the City of 
Carlsbad HMP under the MHCP

[[Page 50478]]

outweighs the benefit of including those lands as critical habitat for 
A. ilicifolia.

Exclusion Will Not Result in Extinction of the Species--Carlsbad HMP

    Exclusion of these 59 ac (24 ha) of non-Federal lands from the 
final designation of critical habitat will not result in the extinction 
of Acanthomintha ilicifolia because these lands are permanently 
conserved and are or will be managed for the benefit of this species 
under the Carlsbad HMP under the MHCP. The jeopardy standard of section 
7 and routine implementation of habitat protection through the section 
7 process also provide assurances that the species will not go extinct. 
The protections afforded to A. ilicifolia under the jeopardy standard 
will remain in place for the areas excluded from critical habitat.

San Diego Multiple Species Conservation Program (MSCP)--City and County 
Subarea Plans

    The MSCP is a framework plan that has been in place for more than 
10 years. The plan area encompasses 582,243 ac (235,626 ha) (County of 
San Diego 1997, p. 1-1; MSCP 1998, pp. 2-1, 4-2--4-4) and provides for 
the conservation of 85 federally listed and sensitive species 
(``covered species''), including Acanthomintha ilicifolia, through the 
establishment of approximately 171,920 ac (69,574 ha) of preserve lands 
within the Multi-Habitat Planning Area (MHPA) (City of San Diego) and 
Pre-Approved Mitigation Areas (PAMA) (County of San Diego). The MSCP 
was developed in support of applications for incidental take permits 
for several covered species by 12 participating jurisdictions and many 
other stakeholders in southwestern San Diego County. Under the umbrella 
of the MSCP, each of the 12 participating jurisdictions is required to 
prepare a subarea plan that implements the goals of the MSCP within 
that particular jurisdiction. Four of the 12 jurisdictions include 
areas that support A. ilicifolia: The City of San Diego, the City of 
Chula Vista, the County of San Diego, and the City of Poway, all of 
which have approved subarea plans. Areas that we determined meet the 
definition of critical habitat are within the subarea plans for the 
City of San Diego and the County of San Diego. The Service issued 
permits to the City of San Diego on June 6, 1997 (Service 1997), and to 
the County of San Diego on March 12, 1998 (Service 1998), based on 
their subarea plans.
    Upon completion of preserve assembly, approximately 171,920 ac 
(69,574 ha) of the 582,243 ac (235,626 ha) MSCP plan area will be 
preserved (MSCP 1998, pp. 2-1, 4-2--4-4). The City of San Diego's 
preserve is delineated by mapped preserve boundaries referred to as 
``hardline'' boundaries (i.e., MHPA). County of San Diego preserve 
areas do not have ``hardline'' boundaries, but the County's subarea 
plan identifies areas where mitigation activities should be focused to 
assemble its preserve areas (i.e., PAMA). Those areas of the MSCP 
preserve that are already conserved as well as those areas that are 
designated for inclusion in the preserve under the plan are referred to 
as the ``preserve area'' in this final designation. When the preserve 
is completed, the public sector (i.e., Federal, State, and local 
government, and general public) will have contributed 108,750 ac 
(44,010 ha) (63.3 percent) to the preserve, of which 81,750 ac (33,083 
ha) (48 percent) was existing public land when the MSCP was established 
and 27,000 ac (10,927 ha) (16 percent) will have been acquired. At 
completion, the private sector will have contributed 63,170 ac (25,564 
ha) (37 percent) to the preserve as part of the development process, 
either through avoidance of impacts or as compensatory mitigation for 
impacts to biological resources outside the preserve. Federal and State 
governments, local jurisdictions and special districts, and managers of 
privately owned lands currently, and in the future will manage and 
monitor their lands in the preserve for species and habitat protection 
(MSCP 1998, pp. 2-1, 4-2--4-4).
    Private lands within the MHPA and PAMA are subject to special 
restrictions on development, and lands that are dedicated to the 
preserve must be legally protected and permanently managed to conserve 
the covered species. Public lands owned by the City, County, State of 
California, and the Federal Government that are identified for 
conservation under the MSCP must also be protected and permanently 
managed to protect the covered species.
    Numerous processes are incorporated into the MSCP that allow for 
Service oversight of the MSCP implementation. For example, the MSCP 
imposes annual reporting requirements and provides for Service review 
and approval of proposed subarea plan amendments and preserve boundary 
adjustments and for Service review and comment on projects during the 
California Environmental Quality Act review process. The Service also 
chairs the MSCP Habitat Management Technical Committee and the 
Monitoring Subcommittee (MSCP 1998, pp. 5-11--5-23. Each MSCP subarea 
plan must account annually for the progress it is making in assembling 
conservation areas. The Service must receive annual reports that 
include, both by project and cumulatively, the habitat acreage 
destroyed and conserved within the subareas. This accounting process 
ensures that habitat conservation proceeds in rough proportion to 
habitat loss and in compliance with the MSCP subarea plans and the 
plans' associated implementing agreements.
    The subarea plans under the MSCP contain requirements to monitor 
and adaptively manage Acanthomintha ilicifolia habitats and provide for 
the conservation of this species' PCE. The framework and area-specific 
management plans are comprehensive and address a broad range of 
management needs at the preserve and species levels that are intended 
to reduce the threats to covered species and thereby contribute to the 
recovery of the species. These plans include the following: (1) Fire 
management; (2) public access control; (3) fencing and gates; (4) 
ranger patrol; (5) trail maintenance; (6) visitor/interpretive and 
volunteer services; (7) hydrological management; (8) signage and 
lighting; (9) trash and litter removal; (10) access road maintenance; 
(11) enforcement of property and/or homeowner requirements; (12) 
removal of invasive species; (13) nonnative predator control; (14) 
species monitoring; (15) habitat restoration; (16) management for 
diverse age classes of covered species; (17) use of herbicides and 
rodenticides; (18) biological surveys; (19) research; and (20) species 
management conditions (MSCP 1998).
    Eight major populations of Acanthomintha ilicifolia are included 
within preserve lands under the MSCP, each of which will be conserved 
from 80 to 100 percent, with 85 percent overall coverage. In 10 years 
of implementing the City and County of San Diego's subarea plans, 
approximately 787 ac (319 ha), or 83 percent, of lands that meet the 
definition of critical habitat for A. ilicifolia have already been 
conserved. An additional 72 ac (28 ha) are inside the PAMA and MHPA, 
and, although they have not yet been formally committed to the 
preserve, these lands are reasonably assured of conservation for A. 
ilicifolia (see Table 4) in accordance with the subarea plans. 
Similarly, although some areas placed in conservation are not yet fully 
managed, such management will occur over time as the subarea plans 
continue to be implemented. The extent of habitat preservation and 
management that has taken place to date through implementation of the 
MSCP and its subarea plans in the City and County of

[[Page 50479]]

San Diego is significant, and demonstrates the City and County of San 
Diego's commitment to fully implement the MSCP.

     Table 4--Non-Federal Lands Within the MSCP Plan Area Excluded From Critical Habitat Designation and the
                                  Conservation of These Lands Under the MSCP *
----------------------------------------------------------------------------------------------------------------
                                                                           Lands within the
      Critical habitat unit         Land ownership         Currently       PAMA or MHPA; not   Lands at risk of
                                                           conserved         yet conserved        development
----------------------------------------------------------------------------------------------------------------
2A. Los Pe[ntilde]asquitos        State/Local.......  63 ac (25 ha).....
 Canyon.
2B. Sabre Springs...............  Private...........  ..................  1 ac (<1 ha)......
                                  State/Local.......  45 ac (19 ha).....  1 ac (<1 ha)......  5 ac (2 ha).
2C. Sycamore Canyon.............  Private...........  ..................  30 ac (12 ha).....
                                  State/Local.......  276 ac (112 ha)...
2D. Slaughterhouse Canyon.......  Private...........  77 ac (31 ha).....
3A. Viejas Mountain.............  Private...........  25 ac (10 ha).....  ..................  7 ac (3 ha).
3B. Viejas Mountain.............  Private...........  80 ac (32 ha).....  ..................  61 ac (25 ha).
4A. McGinty Mountain............  Private...........  17 ac (7 ha)......  1 ac (<1 ha)......
4B. McGinty Mountain............  Private...........  139 ac (56 ha)....  2 ac (1 ha).......
                                  State/Local.......  7 ac (3 ha).......
5+7+61+164C. McGinty Mountain...  Private...........  22 ac (9 ha)......  5 ac (2 ha).......
4D. Hollenbeck Canyon...........  Private...........  ..................  7 ac (3 ha).......  16 ac (6 ha).
                                  State Local.......  61 ac (25 ha).....
                                 -------------------------------------------------------------------------------
    Total.......................  ..................  787 ac (319 ha)...  72 ac (28 ha).....  89 ac (36 ha).
----------------------------------------------------------------------------------------------------------------
* Values in this table may not sum due to rounding and the conversion of values from acres to hectares.

    Approximately 166 ac (67 ha) of lands that meet the definition of 
critical habitat are outside the PAMA and MHPA boundaries (preserve 
areas) (see Table 4); however, of these 166 ac (67 ha), 77 ac (31 ha) 
in subunit 2D are currently being conserved under an ``existing-use 
permit'' issued by the County of San Diego to the landowner in this 
subunit for the continued operation of an adjacent sand and gravel 
mining operation. As part of the ``existing-use permit'' the landowner 
is required to keep portions of the property as open space. Therefore, 
we believe that only 89 ac (36 ha), or 9 percent of the total 948 ac 
(383 ha) that meet the definition of critical habitat within the plan 
area of the MSCP, could potentially be developed. Consistent with the 
narrow endemics requirements of the MSCP, the remaining 89 ac (36 ha) 
will be surveyed for Acanthomintha ilicifolia prior to any development 
occurring on these lands. Under the City of San Diego's subarea plan, 
impacts to narrow endemic plants, including A. ilicifolia, inside the 
MHPA will be avoided and outside the MHPA will be protected as 
appropriate by: (1) Avoidance; (2) management; (3) enhancement; and/or 
(4) transplantation to areas identified for preservation (City of San 
Diego 1997, pp. 105-106; Service 1997, p. 15). Under the County of San 
Diego's subarea plan, narrow endemic plants, including A. ilicifolia, 
are conserved under the Biological Mitigation Ordinance using a process 
that: (1) Requires avoidance to the maximum extent feasible; (2) allows 
for a maximum 20 percent encroachment into a population if total 
avoidance is not feasible; and (3) requires mitigation at the 1:1 to 
3:1 (in kind) for impacts if avoidance and minimization of impacts 
would result in no reasonable use of the property (County of San Diego 
(BMO) 1997, p. 11; Service 1998, p. 12). These measures help protect A. 
ilicifolia and its essential habitat whether located on lands targeted 
for preserve status within the MHPA and PAMA or located outside of 
those areas. The narrow endemic policy for both the City of San Diego 
and County of San Diego subarea plans require in situ conservation of 
A. ilicifolia or mitigation to ameliorate any habitat loss. Therefore, 
although some losses may occur to this species within the 89 ac (36 ha) 
of lands that are not currently preserved or otherwise designated for 
conservation under the MSCP, the preservation, conservation, and 
management of A. ilicifolia provided under the City and County MSCP 
subarea plans ensures the long-term conservation of this species and 
its habitat within all areas addressed by the subarea plans under the 
MSCP.
    We are excluding from the final critical habitat designation for 
Acanthomintha ilicifolia all non-Federal lands (i.e., approximately 948 
ac (383 ha) of lands that meet the definition of critical habitat) 
within the City of and County of San Diego's subarea plans under 
section 4(b)(2) of the Act (see Table 4). The non-Federal lands we are 
excluding include: 63 ac (25 ha) public lands in the City of San 
Diego's Los Pe[ntilde]asquitos Canyon Preserve (subunit 2A); 52 ac (21 
ha) of public and private lands in Los Pe[ntilde]asquitos Canyon east 
of Interstate 15 near Sabre Springs (subunit 2B); 306 ac (124 ha) of 
public and private lands in and adjacent to the Goodan Ranch and 
Sycamore Canyon Open Space County Park (subunit 2C); 77 ac (31 ha) of 
private lands in Slaughterhouse Canyon (subunit 2D); 32 ac (13 ha) of 
private lands on the western flank of Viejas Mountain (subunit 3A); 141 
ac (57 ha) of private lands on the southwestern flank of Viejas 
Mountain (subunit 3B); 18 ac (7 ha) of private lands on the northern 
portion of McGinty Mountain (subunit 4A); 148 ac (60 ha) of public and 
private lands on the central portion of McGinty Mountain (subunit 4B); 
27 ac (11 ha) of private lands on the southern portion of McGinty 
Mountain (subunit 4C); and 84 ac (34 ha) of public and private lands in 
and adjacent to the Hollenbeck Wildlife Area (subunit 4D).
    In the 1998 final rule listing this species as threatened (63 FR 
54938; October 13, 1998), we identified habitat destruction and 
fragmentation from urban development, off-road vehicle activity, 
nonnative invasive plant species, livestock trampling and grazing, and 
mining as primary threats to the species. As described above, the MSCP 
provides protection and appropriate management for Acanthomintha

[[Page 50480]]

ilicifolia, its habitat, and its PCE through implementation of 
conservation strategies that are consistent with generally accepted 
principles of conservation biology. The MSCP preserves habitat that 
supports identified core populations of this species and provides for 
its recovery.

Benefits of Inclusion--MSCP

    The inclusion of approximately 948 ac (383 ha) of non-Federal lands 
within the MSCP could be beneficial because it identifies lands to be 
managed for the conservation and recovery of Acanthomintha ilicifolia. 
The process of proposing and finalizing a critical habitat rule 
provided the Service with the opportunity to determine the features or 
PCEs essential for 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 to the conservation of the species. The 
designation process includes peer review and public comment on the 
identified features and 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. Identification of important habitat and habitat features for 
A. ilicifolia within the City of San Diego and the County of San Diego 
and efforts to conserve the species and its habitat were initiated 
prior to the proposed critical habitat rule through the development of 
the MSCP framework plan and the City and County MSCP subarea plans and 
will continue into the future.
    We believe that some losses may occur to Acanthomintha ilicifolia 
within the 89 ac (36 ha) of lands that are not currently preserved or 
otherwise designated for conservation under the MSCP. Therefore, the 
benefits of inclusion of these lands within designated critical habitat 
are higher than for those lands within the PAMA or MHPA because the 
protections are less.
    The educational benefits of designation are small and largely 
redundant to those derived through conservation efforts already in 
place or underway on the approximately 948 ac (383 ha) of non-Federal 
lands within the MSCP subarea plans. The process of developing the MSCP 
has involved several partners including (but not limited to) the 12 
participating jurisdictions, California Department of Fish and Game, 
the Service and other Federal agencies. Therefore, the educational 
benefits of designating the non-Federal lands in subunits 2A, 2B, 2C, 
2D; 3A; 3B; 4A, 4B, 4C, and 4D as critical habitat are minimal
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of designating land as critical 
habitat. As discussed above, Federal agencies must consult with us on 
actions that may affect critical habitat and must avoid destroying or 
adversely modifying critical habitat. However, all of the approximately 
948 ac (383 ha) of non-Federal lands in subunits 2A, 2B, 2C, 2D; 3A; 
3B; 4A, 4B, 4C, and 4D that is being excluded is on non-Federal land 
and lacks an expected Federal nexus for future section 7 consultation 
on Acanthomintha ilicifolia. Therefore, designating these areas as 
critical habitat is unlikely to provide a regulatory benefit under 
section 7(a) of the Act

Benefits of Exclusion--City and County Subarea Plans

    The City and County MSCP subarea plans provide for protection and 
active management of the features essential to the conservation of 
Acanthomintha ilicifolia on lands in subunits 2A, 2B, 2C, 2D; 3A; 3B; 
4A, 4B, 4C, and 4D, in contrast to the designation of critical habitat, 
which only precludes destruction or adverse modification of essential 
habitat. Moreover, the educational benefits that result from critical 
habitat designation, including informing state and local governments, 
landowners and the public of areas that are necessary for the long-term 
conservation of the species, are already in place both as a result of 
material provided on our Web site and through public notice-and-comment 
procedures required to establish the MSCP and City and County subarea 
plans. Finally, we did not identify a likely regulatory benefit from 
designation of the City or County lands because the lands are non-
Federal and we are not aware of a Federal nexus that would trigger 
future section 7 consultation for A. ilicifolia on these lands.
    We acknowledge that there are 89 acres of private and State lands 
that contain essential habitat features that are located outside of the 
City MHPA and County PAMA lands identified for conservation under the 
MSCP subarea plans, and are potentially at risk of development. 
However, as discussed above, these lands are subject either to City of 
San Diego's the narrow endemic species requirements or to the County's 
Biological Mitigation Ordinance, both of which provide substantial 
protection for A. ilicifolia and its habitat. While there could be some 
additional benefits to designating the 89 acres as critical habitat, we 
continue to believe the potential benefits would be minor. As discussed 
above, the development of the MSCP and subarea plans has already 
resulted in public identification of lands important to the 
conservation of A. ilicifolia. Additionally, development of the MSCP 
and subarea plans resulted in the creation and implementation of 
conservation measures identified in the subarea plans to protect the 
species and its essential habitat, both within and outside of the City 
and County preserve areas, thus minimizing any additional educational 
benefit from designation. Further, as is the case for all of the other 
MSCP lands excluded from the designation, none of the 89 acres is 
Federal land, and we are not aware of a Federal nexus that would 
trigger future section 7 consultation with regard to the lands. 
Therefore, we do not anticipate a regulatory benefit from designation 
of these lands.
    We developed and continue to maintain close partnerships with the 
City of San Diego, the County of San Diego, other local jurisdictions, 
and several other stakeholders through the development of the MSCP, a 
plan that incorporates appropriate protections and management for 
Acanthomintha ilicifolia, its habitat, and the features essential for 
the conservation of this species. Those protections are consistent with 
statutory 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. As we discussed above under ``Benefits of Excluding 
Lands With HCPs or Other Approved Management Plans'', by excluding 
these lands from designation, we are helping to preserve our ongoing 
partnerships with the City and County permittees and to encourage 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 A. 
ilicifolia.

Benefits of Exclusion Outweigh the Benefits of Inclusion--City and 
County Subarea Plans

    We reviewed and evaluated the exclusion of approximately 948 ac 
(383 ha) of non-Federal lands within the MSCP from the designation of 
final critical habitat. We determined that the regulatory benefit of 
designating non-Federal lands in subunits 2A, 2B, 2C, 2D, 3A, 3B, 4A, 
4B, 4C, and 4D is minimal because none of the excluded

[[Page 50481]]

lands have an expected Federal nexus that would trigger a future 
section 7 consultation for Acanthomintha ilicifolia or its essential 
habitat. Furthermore, any potential regulatory benefits would be small 
because 91 percent of essential A. ilicifolia habitat within the plan 
area is assured of conservation and management under the MSCP and the 
89 acres of essential habitat for A. ilicifolia within the City and 
County that occur outside of the MHPA and PAMA and are subject to 
possible future development, receive substantial protection under City 
and County subarea plan measures established to protect this species. 
The educational benefits of critical habitat designation are also 
small. Those benefits, which include informing the public of areas that 
are necessary for the long-term conservation of the species, are 
already in place both as a result of material provided on our Web site 
and through public notice-and-comment procedures required to establish 
the MSCP and City and County subarea plans. The minimal educational and 
potential regulatory benefits of including non-Federal lands covered by 
the City and County MSCP subarea plans are small when compared to the 
impact such a designation could have on our current and future 
partnerships. Designation of lands covered by the MSCP may discourage 
other partners from seeking or completing subarea plans under the MSCP 
framework plan or from pursing other HCPs. Therefore, we determined 
that the minor benefits of critical habitat designation are outweighed 
by benefits of exclusion in consideration of the relevant impact to 
current and future partnerships as summarized above, and in the 
``Conservation Partnerships on Non-Federal Lands'' section. As 
discussed above, the City and County MSCP subarea plans will provide 
for significant preservation and management of habitat for A. 
ilicifolia and will help reach the recovery goals for this species.

Exclusion Will Not Result in Extinction of the Species--City and County 
MSCP Subarea Plans

    Exclusion of these 948 ac (383 ha) of non-Federal lands from the 
final designation of critical habitat will not result in the extinction 
of Acanthomintha ilicifolia because virtually all of the lands 
determined to contain the features essential to the conservation of 
this species either are already or will be permanently conserved and 
managed for the benefit of this species and its PCE under the approved 
MSCP subarea plans. Currently, the majority of these lands are part of 
the preserve area and are receiving management that benefits the 
species. Importantly, as we stated in our biological opinion for the 
City of San Diego subarea plan under the MSCP (Service 1997) and the 
County of San Diego subarea plan under the MSCP, while some loss of 
habitat for A. ilicifolia is anticipated due to implementation of the 
MSCP, implementation of the plan will not jeopardize the continued 
existence of this species.
    The jeopardy standard of section 7(a)(2) of the Act and routine 
implementation of habitat protection through the section 7(a)(2) 
process also provide assurances that the species will not go extinct. 
The protections afforded to Acanthomintha ilicifolia under the jeopardy 
standard will remain in place for the areas excluded from critical 
habitat.

Other Lands With Management That Benefits Acanthomintha ilicifolia--
Exclusions Under Section 4(b)(2) of the Act

Manchester Habitat Mitigation Bank Area

    The Manchester Avenue Mitigation Bank encompasses 123 ac (50 ha) in 
Encinitas, California. The Manchester Avenue Mitigation Bank was 
approved by the Service and CDFG in 1996. The primary goal of creating 
the Manchester Avenue Mitigation Bank was to protect the federally 
listed coastal California gnatcatcher (Polioptila californica 
californica), Arctostaphylos glandulosa ssp. crassifolia (Del Mar 
manzanita), and Acanthomintha ilicifolia, as well as 15 other plant and 
animal species that are known to be ``sensitive'' or ``rare'' species 
in the area. The Manchester Avenue Mitigation Bank overlaps with 70 ac 
(28 ha) of subunit 1C and is covered by the 2005-2010 Management Plan, 
developed by the Center for Natural Lands Management (CNLM) when they 
took responsibility for the ownership and management of the Manchester 
Avenue Mitigation Bank (Spiegelberg 2005, pp. 1-33).
    Ongoing management and monitoring activities conducted by the CNLM 
on the Manchester Avenue Mitigation Bank benefit Acanthomintha 
ilicifolia, its habitat, and the features essential for the 
conservation of this species. Specifically, the CNLM conducts annual 
monitoring of the population of A. ilicifolia within the Manchester 
Avenue Mitigation Bank and uses adaptive management techniques to 
support this species and its PCE. CNLM has fenced areas where this 
species occurs to exclude adverse impacts from recreation. The CNLM 
conducts annual removal of nonnative, invasive species from the areas 
where A. ilicifolia occurs. The CNLM also facilitates the recovery of 
this species by providing educational opportunities for students from 
La Costa Canyon High School and Rancho Santa Ana Botanic Garden to use 
the preserve for field trips and research. Local residents are educated 
about the conservation occurring on the Manchester Avenue Mitigation 
Bank through information about this species and other rare species that 
the CNLM posts at kiosks throughout the Manchester Avenue Mitigation 
Bank on trails open to the public. The CNLM works with the Service and 
CDFG to implement research projects funded under section 6 of the Act. 
The Manchester Avenue Mitigation Bank is an important part of the City 
of Encinitas' open space areas and future habitat preserve under the 
City of Encinitas draft subarea plan under the MHCP. The CNLM regularly 
meets with representatives from the City of Encinitas to ensure the 
City's cooperation in preservation of the Manchester Avenue Mitigation 
Bank. The partnerships that exist on the Manchester Avenue Mitigation 
Bank result in the conservation of A. ilicifolia and its essential 
habitat and help increase knowledge of this species through ongoing 
education and research programs facilitated by the CNLM.

Benefits of Inclusion--Manchester Habitat Mitigation Bank Area

    The inclusion of 70 ac (28 ha) of land in the Manchester Avenue 
Mitigation Bank could be beneficial because it identifies lands to be 
managed for the conservation and recovery of Acanthomintha ilicifolia. 
The process of proposing and finalizing a critical habitat rule 
provided the Service with the opportunity to determine the features or 
PCEs essential for conservation of the species. The designation process 
includes peer review and public comment on the identified features and 
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. 
However, identification of important habitat and habitat features for 
A. ilicifolia within the area covered by Manchester Avenue Mitigation 
Bank and efforts to conserve the species and its habitat were initiated 
prior to the proposed critical habitat rule through the development of 
the

[[Page 50482]]

mitigation bank and will continue into the future. The educational 
benefits of designation are largely redundant to those derived from 
ongoing conservation efforts already being implemented on the 70 ac (28 
ha) of non-Federal lands within the Manchester Avenue Mitigation Bank. 
Therefore, the educational benefits of designating the private lands in 
subunit 1C as critical habitat are minimal.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of inclusion for critical habitat. 
As discussed above, Federal agencies must consult with us on actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. Because all of the mitigation bank lands 
are permenently protected from development and dedicated to the 
protection of Acanthomintha ilicifolia and other sensitive species, the 
likelihood of a Federal action occuring on these lands that could 
result in an adverse modification of the species essential habitat 
feature is extremely small. Moreover, all of the 70 ac (28 ha) of non-
Federal lands within the Manchester Avenue Mitigation Bank that is 
being excluded is on private property, and we are not aware of a 
Federal nexus that would trigger future section 7 consultation in this 
area. Therefore, we do not anticipate a regulatory benefit under 
Section 7(a)(2) from designation of lands within the Manchester Avenue 
Mitigation Bank.

Benefits of Exclusion--Manchester Avenue Mitigation Bank Area

    The 2005-2010 Management Plan for the Manchester Avenue Mitigation 
Bank (Spiegelberg 2005, pp. 1-33) provides for conservation of bank 
lands in a coordinated, integrated manner. The protection and active 
management of Acanthomintha ilicifolia and its essential habitat 
features on Manchester Avenue Mitigation Bank lands conserves A. 
ilicifolia at this site and directly contributes to the survival and 
recovery of this species in contrast to designation of critical 
habitat, which only precludes destruction or adverse modification of 
essential habitat. Moreover, the educational benefits that result from 
critical habitat designation, including informing the public of areas 
that are necessary for the long-term conservation of the species, are 
already in place both as a result of the development of the Manchester 
Avenue Mitigation Bank and the ongoing, substantial public outreach 
that is conducted by CNLM manager of the bank, and the involvement of 
the public and local government representatives in the day-to-day 
operation of the bank.
    Finally, we did not identify a likely Federal nexus for future 
section 7 consultations on lands within the Manchester Avenue 
Mitigation Bank because the lands are privately owned and already 
protected from development; therefore, we do not anticipate a 
regulatory benefit from designation.
    In contrast to the lack of an appreciable educational or regulatory 
benefit of including these lands as critical habitat, the exclusion of 
these lands from critical habitat will help preserve the partnerships 
that we developed with CNLM, the California Department of Fish and 
Game, and the City of Encinitas, all of which were involved with the 
creation and remain involved with the management of the Manchester 
Avenue Mitigation Bank. As discussed above, many landowners and local 
jurisdictions perceive critical habitat as an unfair and unnecessary 
regulatory burden given the expense and time involved in developing and 
implementing conservation plans such as the Manchester Avenue 
Mitigation Bank. The exclusion of this area signals to other private 
landowners that if they take steps to put their lands into 
conservation, they may avoid an additional layer of regulation, which, 
as we described above in the ``Conservation Partnerships on Non-Federal 
Lands'' section, sometimes acts as a disincentive for private 
landowners.

Benefits of Exclusion Outweigh the Benefits of Inclusion--Manchester 
Habitat Conservation Area Management Plan

    We reviewed and evaluated the proposed designation of essential 
habitat in the Manchester Avenue Mitigation Bank and determined that 
the benefits of excluding critical habitat on 70 ac (28 ha) of land in 
the Manchester Avenue Mitigation Bank outweigh the benefits of 
designating these lands as critical habitat. This area, now owned by 
the CNLM, is protected by a conservation easement and the permanent 
management of this area is funded by an endowment supported by a 
Property Analysis Record (PAR). These measures provide assurance that 
the features essential to the conservation of Acanthomintha ilicifolia 
at the Manchester Avenue Mitigation Bank site will be permanently 
protected and managed to conserve this species. In light of the 
conserved status of the lands and the absence of an expected Federal 
nexus for future section 7 consultation on these privately owned lands, 
we conclude that the potential regulatory benefit of designating this 
area as critical habitat is minimal. Likewise, educational benefit of 
designation is also small and largely redundant to the educational 
benefit already provided though CNLM's ongoing environmental education 
programs to promote public understanding and appreciation of the 
natural resources on the Manchester Avenue Mitigation Bank as 
summarized above. The minimal educational and potential regulatory 
benefits of including the privately owned Manchester Avenue Mitigation 
Bank in critical habitat are small when compared to the impact such a 
designation could have on our current and future partnerships. 
Designation of lands covered by the bank may discourage other private 
landowners from seeking or completing similar conservation efforts. 
Therefore, we conclude that the minor benefits of critical habitat 
designation are outweighed by benefits of exclusion in consideration of 
the relevant impact to current and future partnerships as summarized 
above, and in the ``Conservation Partnerships on Non-Federal Lands'' 
section. As discussed above, Manchester Avenue Mitigation Bank will 
provide for significant preservation and management of habitat for A. 
ilicifolia and will help reach the recovery goals for this species.

Exclusion Will Not Result in Extinction of the Species--Manchester 
Habitat Conservation Area Management Plan

    The exclusion of 70 ac (28 ha) of private lands in the Manchester 
Avenue Mitigation Bank from the final critical habitat designation will 
not result in the extinction of Acanthomintha ilicifolia because these 
lands are permanently conserved and managed for the benefit of this 
species under the agreements in place for the Manchester Avenue 
Mitigation Bank. The management activities implemented on the 
Manchester Avenue Mitigation Bank provide for the enhancement and 
preservation of the features essential to the conservation of A. 
ilicifolia.
    The jeopardy standard of section 7(a)(2) of the Act and routine 
implementation of habitat protection through the section 7(a)(2) 
process also provide assurances that the species will not go extinct. 
The protections afforded to Acanthomintha ilicifolia under the jeopardy 
standard will remain in place for the areas excluded from critical 
habitat.

Economic Analysis

    Section 4(b)(2) of the Act requires us to designate critical 
habitat on the basis of the best scientific information

[[Page 50483]]

available and to consider the 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 
exclusions 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 economic 
analysis (draft EA) was made available for public review on November 
27, 2007 (72 FR 66122). We accepted comments and information on the 
draft analysis until December 27, 2007. A final economic analysis was 
completed on January 24, 2008.
    The primary purpose of the final economic analysis is to estimate 
the potential economic impacts associated with the designation of 
critical habitat for Acanthomintha ilicifolia. 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. The economic analysis separates the 
costs associated with conservation measures and economic impacts that 
occurred pre-designation from those that are likely to occur as a 
result of the designation. It also addresses distribution of impacts, 
including an assessment of the potential effects on small entities and 
the energy industry. The economic analysis separated the costs 
associated with the areas that we proposed to exclude from the areas 
that we proposed to designate at the time of the March 14, 2007, 
proposed rule (72 FR 11946). 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, local zoning laws, State and natural resource laws, and 
enforceable management plans and best management practices applied by 
other State and Federal agencies. Economic impacts that result from 
these types of protections are not included in the analysis as they are 
considered to be part of the regulatory and policy baseline.
    The economic analysis examines activities taking place both within 
and adjacent to the designation. It estimates impacts based on 
activities that are ``reasonably foreseeable'' including, but not 
limited to, activities that are currently authorized, permitted, or 
funded, or for which proposed plans are currently available to the 
public. Accordingly, the analysis bases estimates on activities that 
are likely to occur within a 20-year time frame from when the proposed 
rule became available to the public (72 FR 11946; March 14, 2007). The 
20-year time frame was chosen for the analysis because, as the time 
horizon for an economic analysis is expanded, the assumptions on which 
the projected number of projects and cost impacts associated with those 
projects become increasingly speculative.
    Based on our analysis, we concluded that the designation of 
critical habitat would not result in a significant economic impact. The 
total future potential economic impact is estimated to be $0.6 to $2.8 
million in undiscounted dollars over the next 20 years. The present 
value of these impacts, applying a 3 percent discount rate, is $0.4 to 
$2.1 million ($25,000 to $137,000 annualized); applying a 7 percent 
discount rate, it is $0.3 to $1.5 million ($25,000 to $136,000 
annualized). Impacts associated with development represent the largest 
proportion of future impacts, accounting for 96 percent of forecasted 
impacts in the areas proposed for final designation. Impacts from 
recreation management and exotic plant species management make up the 
remaining 4 percent. Under the final designation scenario, 
approximately 98 percent of the anticipated post-designation impacts 
are forecast to occur in subunits 3D (71 percent), 3C (17 percent), and 
3F (11 percent). The remaining 2 percent of forecasted impacts are 
expected to occur in subunits 3B, 1A, and 3E. Impacts associated with 
development, recreation, and exotic plant species management are 
quantified for the areas that we proposed as critical habitat. Although 
we do not find the economic costs to be significant, they were 
considered in balancing the benefits of including and excluding areas 
from critical habitat. We did not exclude any areas from this 
designation of critical habitat based on economic impacts.
    A copy of the final economic analysis, with supporting documents, 
may be obtained by contacting U.S. Fish and Wildlife Service, Carlsbad 
Fish and Wildlife Office (see ADDRESSES) or for downloading from the 
Internet at http://www.regulations.gov or http://www.fws.gov/carlsbad.

Required Determinations

    In our March 14, 2007, proposed rule (72 FR 11946), we indicated 
that we would defer our determination of compliance with several 
statutes and Executive Orders until the information concerning 
potential economic impacts of the designation and potential effects on 
landowners and stakeholders was available in the economic analysis. In 
this final rule, we affirm the information contained in the proposed 
rule concerning Executive Order (E.O.) 13132, E.O. 12988, the Paperwork 
Reduction Act, and the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951).

Regulatory Planning and Review

    The Office of Management and Budget (OMB) has determined that this 
rule is not significant and has not reviewed this rule under Executive 
Order 12866 (E.O. 12866). OMB bases its determination upon the 
following four criteria:
    (a) Whether the rule will have an annual effect of $100 million or 
more on the economy or adversely affect an economic sector, 
productivity, jobs, the environment, or other units of the government.
    (b) Whether the rule will create inconsistencies with other Federal 
agencies' actions.
    (c) Whether the rule will materially affect entitlements, grants, 
user fees, loan programs, or the rights and obligations of their 
recipients.
    (d) Whether the rule raises novel legal or policy issues.

Regulatory Flexibility Act

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq.), 
as amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA), 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 (i.e., small businesses, small 
organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of an agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small

[[Page 50484]]

entities. SBREFA amended RFA to require Federal agencies to provide a 
certification 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 Acanthomintha ilicifolia 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 include small organizations, such as independent nonprofit 
organizations, and small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses (13 CFR 121.201). 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 considered 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 considered 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 authorized, 
funded, or carried out 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 authorize, fund, or carry out 
that may affect Acanthomintha ilicifolia (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).
    In our final economic analysis of the proposed critical habitat 
designation, we evaluated the potential economic effects on small 
business entities resulting from conservation actions related to the 
listing of Acanthomintha ilicifolia and the proposed designation of 
critical habitat. The analysis is based on the estimated impacts 
associated with the proposed rulemaking as described in Chapters 2 
through 4 and Appendices A, B, C, and F of the analysis and evaluates 
the potential for economic impacts related to three categories: 
Development and HCP implementation; recreation management; and 
invasive, nonnative plant management.
    The U.S. Forest Service (USFS), the California Department of Fish 
and Game (CDFG), and the U.S. Fish and Wildlife Service are not 
considered small entities by the Small Business Administration. Two 
non-profit organizations, The Nature Conservancy (TNC) and the Center 
for Natural Lands Management (CNLM), are involved with conservation 
activities for Acanthomintha ilicifolia; however, the primary mission 
of both of these organizations is to preserve, restore, and protect 
natural resources. Therefore, impacts from species conservation on 
these organizations are not considered in the small business impacts 
analysis.
    Additionally, the boundaries of four city governments encompass 
portions of the proposed critical habitat--Carlsbad, Encinitas, San 
Diego, and Poway--with the remainder of the proposed critical habitat 
located within unincorporated San Diego County. All four cities and the 
County exceed the criteria to be considered a ``small entity'' under 
the RFA.
    The final economic analysis identified 18 privately owned, 
undeveloped parcels within areas proposed as critical habitat. The 18 
parcels are owned by nine individual landowners. For the nine 
individual landowners that may be affected by the proposed designation 
of critical habitat, the final economic analysis could not determine if 
any of these landowners qualify as small businesses. For the two 
landowners of proposed subunits 3D, 3E, and 3F, the final economic 
analysis estimates annualized impacts associated with conservation 
activities for Acanthomintha ilicifolia could range from a low of $700 
to $35,700, with an average range of annualized impact of $5,300 to 
$42,300 per landowner over the next 20 years. The remaining seven 
landowners of the 14 parcels in subunits we excluded from the final 
designation, annualized impacts are estimated to range from a low of 
$300 in subunit 4D up to $18,700 in subunit 2C, with an average 
annualized impact ranging from $17,000 to $84,000.
    We determined that nine individual private landowners do not 
constitute a substantial number of small entities according to the SBA. 
However, even if the landowners were to represent small development 
businesses, nine small businesses would not be a significant number of 
businesses for San Diego County. Additionally, any developer directly 
impacted by the designation of critical habitat would not be expected 
to bear the additional cost of conservation measures for Acanthomintha 
ilicifolia; it is anticipated that additional costs that could arise 
from the designation would be passed on to individual homebuyers if the 
parcels were to be developed. Please refer to our final economic 
analysis of the proposed critical habitat designation for a more 
detailed discussion of potential economic impacts.
    In summary, we considered whether this would result in a 
significant economic effect on a substantial number of small entities. 
Based on the above reasoning and currently available information, we 
concluded that this rule would not result in a significant economic 
impact on a substantial number of small entities. Therefore, we are 
certifying that the designation of critical habitat for Acanthomintha 
ilicifolia will not have a significant economic impact on a substantial 
number of small entities, and a regulatory flexibility analysis is not 
required.

[[Page 50485]]

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 final 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).

Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued Executive Order 13211 on 
regulations that significantly affect energy supply, distribution, and 
use. E.O. 13211 requires agencies to prepare Statements of Energy 
Effects when undertaking certain actions. 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 final economic analysis, energy-related 
impacts associated with Acanthomintha ilicifolia conservation 
activities within the final critical habitat designation are not 
expected. As such, the designation of critical habitat is not expected 
to significantly affect energy supplies, distribution, or use. 
Therefore, this action is not a significant energy action, and no 
Statement of Energy Effects is required.

Unfunded Mandates Reform Act (2 U.S.C. 1501 et seq.)

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal mandate is a provision in legislation, statute, or regulation 
that would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or tribal governments'' with two 
exceptions. It excludes ``a condition of Federal assistance.'' It also 
excludes ``a duty arising from participation in a voluntary Federal 
program,'' unless the regulation ``relates to a then-existing Federal 
program under which $500,000,000 or more is provided annually to State, 
local, and tribal governments under entitlement authority,'' if the 
provision would ``increase the stringency of conditions of assistance'' 
or ``place caps upon, or otherwise decrease, the Federal Government's 
responsibility to provide funding,'' and the State, local, or Tribal 
governments ``lack authority'' to adjust accordingly. At the time of 
enactment, these entitlement programs were: Medicaid; Aid to Families 
with Dependent Children 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 result in the destruction or adverse 
modification of critical habitat. Non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat. However, 
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. The designation of critical habitat imposes no obligations on 
State or local governments. By definition, Federal agencies are not 
considered small entities, although the activities they fund or permit 
may be proposed or carried out by small entities. As such, a Small 
Government Agency Plan is not required.

Executive Order 12630--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 critical habitat for Acanthomintha ilicifolia in a takings 
implications assessment. Critical habitat designation does not affect 
landowner actions that do not require Federal funding or permits, nor 
does it preclude development of habitat conservation programs or 
issuance of incidental take permits to permit actions that do require 
Federal funding or permits to go forward. The takings implications 
assessment concludes that this designation of critical habitat for 
Acanthomintha ilicifolia does not pose significant takings 
implications.

Federalism

    In accordance with E.O. 13132 (Federalism), this 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 critical habitat designation with appropriate 
State resource agencies in California. The designation may have some 
benefit to these governments in that the areas that contain the 
physical and biological features essential to the conservation of the 
species are more clearly defined, and the PCE of the habitat necessary 
to the conservation of the species is 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 case-by-case section 7 
consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the 
regulation meets the applicable standards set forth in 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

[[Page 50486]]

physical and biological features essential to the conservation of the 
subspecies within the designated areas to assist the public in 
understanding the habitat needs of Acanthomintha ilicifolia.

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 (NEPA)

    It is our position that, outside the Jurisdiction of the U.S. Court 
of Appeals for the Tenth Circuit, we do not need to prepare 
environmental analyses as defined by the 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 
Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld by the U.S. Court of Appeals 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 determined that there are no 
Tribal lands occupied at the time of listing that contain the features 
essential for the conservation, and no unoccupied Tribal lands that are 
essential for the conservation of Acanthomintha ilicifolia. Therefore, 
we are not designating critical habitat for A. ilicifolia on Tribal 
lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available upon request from the Field Supervisor, Carlsbad Fish and 
Wildlife Office (see ADDRESSES).

Author(s)

    The primary authors of this rulemaking are the staff members of the 
Carlsbad Fish and Wildlife Office.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

0
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]

0
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.


0
2. Amend Sec.  17.12(h), by revising the entry for ``Acanthomintha 
ilicifolia'' under ``FLOWERING PLANTS'' to read as follows:


Sec.  17.12  Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                        Species
--------------------------------------------------------    Historic range           Family            Status      When listed    Critical     Special
         Scientific name                Common name                                                                               habitat       rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Acanthomintha ilicifolia.........  San Diego thornmint.  U.S.A. (CA), Mexico  Lamiaceae..........  T                       649     17.96(a)           NA
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96(a), by adding an entry for ``Acanthomintha 
ilicifolia (San Diego thornmint),'' in alphabetical order under family 
Lamiaceae, to read as follows:


Sec.  17.96  Critical habitat--plants.

    (a) Flowering plants.
* * * * *
Family Lamiaceae: Acanthomintha ilicifolia (San Diego thornmint)
    (1) Critical habitat units are depicted for San Diego County, 
California, on the maps below.
    (2) The primary constituent element of critical habitat for 
Acanthomintha ilicifolia is clay lenses that provide substrate for 
seedling establishment and space for growth and development of 
Acanthomintha ilicifolia that are:
    (i) Within chaparral, grassland, and coastal sage scrub;
    (ii) On gentle slopes ranging from 0 to 25 degrees;
    (iii) Derived from gabbro and soft calcareous sandstone substrates 
with a loose, crumbly structure and deep fissures (approximately 1 to 2 
feet (30 to 60 cm)); and
    (iv) Characterized by a low density of forbs and geophytes, and a 
low density or absence of shrubs.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, airports, and roads) and the land on which such 
structures are located existing on the effective date of this rule.
    (4) Critical habitat map units. Data layers defining map units were 
created using a base of U.S. Geological Survey 7.5' quadrangle maps, 
and the critical habitat units were then mapped using UTM coordinates.
    (5) Note: Index map of critical habitat units for Acanthomintha 
ilicifolia (San Diego thornmint) follows:
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    (6) Unit 1: San Diego County, California. From USGS 1:24,000 
quadrangle maps San Luis Rey, San Marcos, Encinitas, and Rancho Santa 
Fe.
    (i) Subunit 1A. Land bounded by the following UTM NAD27 coordinates 
(E,N): 475715, 3666433; 475721, 3666303; 475701, 3666286; 475680, 
3666267; 475668, 3666256; 475657, 3666252; 475640, 3666251; 475636, 
3666235; 475627, 3666226; 475627, 3666225; 475624, 3666222; 475614, 
3666214; 475604, 3666209; 475588, 3666206; 475577, 3666207; 475570, 
3666200; 475651, 3666200; 475724, 3666204; 475729, 3666090; 475729, 
3666089; 475715, 3666078; 475725, 3665997; 475684, 3665976; 475692, 
3665942; 475678, 3665937; 475677, 3665937; 475667, 3665934; 475660, 
3665932; 475625, 3665959; 475555, 3665930; 475456, 3665852; 475471, 
3665837; 475502, 3665823; 475526, 3665825; 475595, 3665822; 475610, 
3665823; 475639, 3665823; 475697, 3665853; 475706, 3665850; 475706, 
3665850; 475707, 3665847; 475709, 3665845; 475710, 3665842; 475711, 
3665840; 475713, 3665837; 475714, 3665834; 475715, 3665832; 475716, 
3665829; 475717, 3665826; 475718, 3665823; 475719, 3665821; 475720, 
3665818; 475721, 3665815; 475721, 3665812; 475722, 3665809; 475723, 
3665807; 475723, 3665804; 475724, 3665801; 475724, 3665798; 475725, 
3665795; 475725, 3665792; 475726, 3665789; 475726, 3665787; 475726, 
3665784; 475726, 3665781; 475726, 3665778; 475726, 3665775; 475726, 
3665772; 475726, 3665769; 475726, 3665766; 475726, 3665763; 475726, 
3665760; 475726, 3665758; 475725, 3665755; 475725, 3665752; 475725, 
3665751; 475690, 3665758; 475660, 3665748; 475573, 3665707; 475497, 
3665712; 475443, 3665727; 475419, 3665730; 475402, 3665733; 475390, 
3665731; 475389, 3665722; 475387, 3665635; 475393, 3665625; 475384, 
3665621; 475363, 3665616; 475351, 3665612; 475329, 3665607; 475298, 
3665608; 475276, 3665597; 475267, 3665596; 475257, 3665597; 475244, 
3665599; 475234, 3665595; 475221, 3665587; 475170, 3665590; 475172, 
3665599; 475154, 3665640; 475145, 3665651; 475119, 3665668; 475104, 
3665685; 475097, 3665688; 475098, 3665697; 475100, 3665707; 475103, 
3665716; 475107, 3665725; 475111, 3665735; 475114, 3665741; 475117, 
3665745; 475123, 3665756; 475124, 3665759; 475129, 3665767; 475135, 
3665775; 475142, 3665783; 475148, 3665790; 475156, 3665797; 475161, 
3665801; 475175, 3665813; 475178, 3665815; 475186, 3665821; 475195, 
3665826; 475203, 3665831; 475212, 3665835; 475215, 3665836; 475216, 
3665844; 475216, 3665854; 475218, 3665864; 475220, 3665873; 475223, 
3665883; 475227, 3665892; 475231, 3665901; 475236, 3665910; 475241, 
3665919; 475247, 3665927; 475253, 3665934; 475260, 3665942; 475267, 
3665948; 475286, 3665965; 475286, 3665965; 475294, 3665972; 475302, 
3665977; 475310, 3665983; 475319, 3665987; 475328, 3665991; 475337, 
3665995; 475338, 3665995; 475339, 3665996; 475372, 3666006; 475381, 
3666009; 475390, 3666011; 475400, 3666013; 475410, 3666014; 475420, 
3666014; 475430, 3666014; 475440, 3666013; 475450, 3666011; 475452, 
3666011; 475478, 3666005; 475474, 3666011; 475472, 3666014; 475466, 
3666022; 475461, 3666030; 475456, 3666039; 475452, 3666048; 475448, 
3666057; 475445, 3666067; 475443, 3666077; 475441, 3666087; 475440, 
3666096; 475440, 3666106; 475440, 3666116; 475441, 3666126; 475443, 
3666134; 475446, 3666150; 475446, 3666152; 475448, 3666162; 475451, 
3666171; 475455, 3666181; 475459, 3666190; 475464, 3666199; 475468, 
3666205; 475479, 3666223; 475480, 3666225; 475486, 3666233; 475492, 
3666241; 475496, 3666245; 475511, 3666260; 475514, 3666263; 475518, 
3666267; 475517, 3666269; 475517, 3666272; 475517, 3666275; 475516, 
3666278; 475516, 3666281; 475516, 3666284; 475516, 3666287; 475516, 
3666289; 475516, 3666292; 475516, 3666295; 475516, 3666298; 475517, 
3666301; 475517, 3666304; 475517, 3666307; 475518, 3666310; 475518, 
3666313; 475519, 3666315; 475519, 3666318; 475520, 3666321; 475520, 
3666324; 475521, 3666327; 475522, 3666330; 475523, 3666332; 475524, 
3666335; 475524, 3666338; 475525, 3666341; 475526, 3666343; 475528, 
3666346; 475529, 3666349; 475530, 3666351; 475531, 3666354; 475532, 
3666357; 475534, 3666359; 475535, 3666362; 475536, 3666364; 475538, 
3666367; 475539, 3666369; 475541, 3666372; 475543, 3666374; 475544, 
3666376; 475546, 3666379; 475548, 3666381; 475550, 3666383; 475551, 
3666386; 475553, 3666388; 475555, 3666390; 475557, 3666392; 475559, 
3666394; 475561, 3666396; 475563, 3666398; 475565, 3666400; 475568, 
3666402; 475570, 3666404; 475572, 3666406; 475574, 3666408; 475577, 
3666410; 475579, 3666411; 475581, 3666413; 475584, 3666415; 475586, 
3666416; 475589, 3666418; 475591, 3666419; 475594, 3666421; 475596, 
3666422; 475599, 3666424; 475601, 3666425; 475604, 3666426; 475607, 
3666427; 475609, 3666428; 475612, 3666430; 475615, 3666431; 475617, 
3666432; 475620, 3666433; 475623, 3666433; 475626, 3666434; 475628, 
3666435; 475631, 3666436; 475634, 3666437; 475637, 3666437; 475640, 
3666438; 475643, 3666438; 475645, 3666439; 475648, 3666439; 475651, 
3666439; 475654, 3666440; 475657, 3666440; 475660, 3666440; 475663, 
3666440; 475666, 3666440; 475669, 3666440; 475671, 3666440; 475674, 
3666440; 475677, 3666440; 475680, 3666440; 475683, 3666440; 475686, 
3666439; 475689, 3666439; 475692, 3666439; 475695, 3666438; 475697, 
3666438; 475700, 3666437; 475703, 3666437; 475706, 3666436; 475709, 
3666435; 475712, 3666434; 475714, 3666433; returning to 475715, 
3666433.
    (ii) Subunit 1C. Land bounded by the following UTM NAD27 
coordinates (E,N): 476734, 3654344; 476773, 3654344; 476753, 3654337; 
476753, 3654314; 476730, 3654283; 476699, 3654259; 476670, 3654230; 
476667, 3654190; 476654, 3654166; 476578, 3654226; 476581, 3654228; 
476586, 3654259; 476577, 3654287; 476576, 3654287; 476519, 3654289; 
476485, 3654306; 476451, 3654315; 476452, 3654320; 476457, 3654334; 
476457, 3654335; 476461, 3654344; 476465, 3654353; 476467, 3654358; 
476474, 3654370; 476476, 3654374; 476481, 3654383; 476487, 3654391; 
476488, 3654392; 476497, 3654403; 476502, 3654409; 476509, 3654417; 
476515, 3654423; 476519, 3654426; 476609, 3654448; 476615, 3654465; 
476615, 3654341; 476616, 3654341; returning to 476734, 3654344.
    (iii) Note: Map of Unit 1, Subunits 1A and 1C, follows:
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    (7) Unit 3: San Diego County, California. From USGS 1:24,000 
quadrangle map Viejas Mountain.
    (i) Subunit 3B. Land bounded by the following UTM NAD27 coordinates 
(E,N): 524469, 3634407; 524471, 3634409; 524477, 3634418; 524483, 
3634425; 524490, 3634433; 524497, 3634439; 524505, 3634446; 524513, 
3634452; 524522, 3634457; 524530, 3634461; 524539, 3634466; 524549, 
3634469; 524557, 3634472; 524601, 3634484; 524603, 3634484; 524607, 
3634485; 524617, 3634500; 524621, 3634504; 524627, 3634512; 524634, 
3634519; 524641, 3634526; 524647, 3634531; 524683, 3634560; 524686, 
3634562; 524694, 3634568; 524702, 3634573; 524711, 3634578; 524720, 
3634582; 524729, 3634585; 524739, 3634588; 524749, 3634590; 524758, 
3634592; 524768, 3634593; 524778, 3634593; 524783, 3634593; 524811, 
3634592; 524816, 3634592; 524826, 3634591; 524836, 3634590; 524845, 
3634587; 524855, 3634584; 524864, 3634581; 524873, 3634577; 524882, 
3634572; 524891, 3634567; 524899, 3634561; 524907, 3634555; 524914, 
3634548; 524917, 3634544; 524933, 3634527; 524937, 3634523; 524943, 
3634516; 524949, 3634508; 524954, 3634499; 524959, 3634490; 524963, 
3634481; 524966, 3634472; 524986, 3634414; 524987, 3634413; 524990, 
3634403; 524992, 3634394; 524993, 3634384; 524994, 3634374; 524995, 
3634364; 524994, 3634354; 524993, 3634344; 524992, 3634334; 524990, 
3634325; 524987, 3634315; 524985, 3634311; 524970, 3634270; 524968, 
3634265; 524964, 3634255; 524959, 3634247; 524957, 3634243; 524957, 
3634242; 524953, 3634220; 524952, 3634214; 524950, 3634204; 524947, 
3634194; 524943, 3634185; 524939, 3634176; 524935, 3634167; 524929, 
3634159; 524923, 3634150; 524917, 3634143; 524913, 3634139; 524890, 
3634114; 524887, 3634111; 524880, 3634104; 524872, 3634098; 524864, 
3634092; 524856, 3634087; 524847, 3634082; 524838, 3634078; 524832, 
3634076; 524804, 3634066; 524801, 3634065; 524791, 3634062; 524781, 
3634059; 524774, 3634058; 524755, 3634055; 524744, 3634054; 524741, 
3634053; 524732, 3634052; 524731, 3634341; 524634, 3634343; 524436, 
3634347; 524436, 3634347; 524439, 3634356; 524444, 3634365; 524448, 
3634374; 524452, 3634380; 524454, 3634383; returning to 524469, 
3634407. Land bounded by the following UTM NAD27 coordinates (E,N): 
524386, 3634381; 524389, 3634377; 524400, 3634360; 524402, 3634356; 
524406, 3634348; 524348, 3634349; 524325, 3634350; 524325, 3634407; 
524325, 3634407; 524324, 3634436; 524342, 3634425; 524344, 3634424; 
524352, 3634418; 524360, 3634411; 524367, 3634405; 524374, 3634397; 
524374, 3634397; 524381, 3634390; 524385, 3634384; returning to 524386, 
3634381. Land bounded by the following UTM NAD27 coordinates (E,N): 
524764, 3633867; 524774, 3633864; 524783, 3633860; 524792, 3633856; 
524801, 3633851; 524810, 3633846; 524818, 3633840; 524826, 3633834; 
524833, 3633827; 524840, 3633820; 524846, 3633812; 524852, 3633804; 
524857, 3633796; 524862, 3633787; 524866, 3633778; 524869, 3633768; 
524871, 3633763; 524896, 3633679; 524897, 3633675; 524900, 3633665; 
524901, 3633655; 524902, 3633645; 524902, 3633635; 524902, 3633625; 
524901, 3633615; 524900, 3633606; 524897, 3633596;524894, 3633586; 
524891, 3633577; 524887, 3633568; 524882, 3633559; 524877, 3633551; 
524871, 3633542; 524865, 3633535; 524858, 3633527; 524851, 3633521; 
524844, 3633515; 524805, 3633485; 524768, 3633441; 524765, 3633438; 
524749, 3633418; 524749, 3633418; 524749, 3633467; 524735, 3633871; 
524745, 3633870; 524755, 3633869; 524758, 3633868; returning to 524764, 
3633867.
    (ii) Note: Subunit 3B for Acanthomintha ilicifolia is depicted on 
the map in paragraph (7)(x) of this entry.
    (iii) Subunit 3C. Land bounded by the following UTM NAD27 
coordinates (E,N): 527110, 3634008; 527113, 3633915; 527118, 3633794; 
527114, 3633788; 527113, 3633774; 527112, 3633774; 527093, 3633707; 
527076, 3633649; 527047, 3633595; 526929, 3633588; 526900, 3633612; 
526851, 3633672; 526802, 3633692; 526764, 3633652; 526723, 3633606; 
526709, 3633575; 526535, 3633564; 526387, 3633555; 526378, 3633555; 
526380, 3633421; 526384, 3633149; 526237, 3633148; 526221, 3633170; 
526221, 3633170; 526215, 3633178; 526209, 3633187; 526205, 3633195; 
526201, 3633205; 526197, 3633214; 526194, 3633223; 526194, 3633225; 
526175, 3633297; 526173, 3633306; 526171, 3633315; 526171, 3633325; 
526170, 3633335; 526170, 3633340; 526173, 3633452; 526174, 3633458; 
526175, 3633468; 526176, 3633478; 526179, 3633487; 526181, 3633497; 
526185, 3633506; 526189, 3633515; 526194, 3633524; 526199, 3633532; 
526192, 3633537; 526183, 3633543; 526176, 3633549; 526169, 3633555; 
526138, 3633586; 526137, 3633587; 526131, 3633594; 526124, 3633602; 
526118, 3633610; 526113, 3633618; 526109, 3633627; 526104, 3633636; 
526101, 3633646; 526098, 3633655; 526096, 3633665; 526094, 3633675; 
526093, 3633684; 526090, 3633734; 526085, 3633793; 526074, 3633870; 
526074, 3633871; 526064, 3633943; 526064, 3633944; 526063, 3633954; 
526062, 3633964; 526063, 3633974; 526064, 3633984; 526064, 3633986; 
526073, 3634048; 526074, 3634056; 526076, 3634066; 526079, 3634076; 
526083, 3634085; 526084, 3634088; 526100, 3634123; 526100, 3634133; 
526091, 3634181; 526070, 3634267; 526069, 3634273; 526068, 3634278; 
526058, 3634337; 526058, 3634342; 526057, 3634352; 526057, 3634353; 
526054, 3634397; 526054, 3634406; 526054, 3634416; 526055, 3634426; 
526057, 3634435; 526059, 3634445; 526062, 3634455; 526066, 3634464; 
526070, 3634473; 526074, 3634482; 526080, 3634490; 526085, 3634498; 
526092, 3634506; 526099, 3634513; 526102, 3634517; 526123, 3634536; 
526127, 3634540; 526134, 3634546; 526143, 3634552; 526151, 3634557; 
526160, 3634562; 526169, 3634566; 526178, 3634570; 526187, 3634572; 
526213, 3634579; 526214, 3634580; 526224, 3634582; 526234, 3634584; 
526235, 3634584; 526261, 3634587; 526270, 3634588; 526277, 3634588; 
526310, 3634612; 526318, 3634617; 526320, 3634620; 526340, 3634682; 
526341, 3634684; 526344, 3634694; 526348, 3634703; 526353, 3634712; 
526358, 3634720; 526364, 3634728; 526370, 3634736; 526377, 3634743; 
526385, 3634750; 526392, 3634756; 526400, 3634762; 526403, 3634764; 
526449, 3634794; 526455, 3634797; 526464, 3634802; 526473, 3634806; 
526483, 3634810; 526492, 3634812; 526502, 3634815; 526512, 3634816; 
526522, 3634817; 526532, 3634818; 526542, 3634817; 526549, 3634817; 
526586, 3634812; 526589, 3634812; 526598, 3634810; 526608, 3634808; 
526618, 3634805; 526627, 3634802; 526636, 3634798; 526645, 3634793; 
526653, 3634788; 526662, 3634782; 526669, 3634775; 526677, 3634769; 
526683, 3634761; 526690, 3634754; 526695, 3634745; 526701, 3634737; 
526705, 3634728; 526710, 3634719; 526712, 3634713; 526738, 3634641; 
526739, 3634638; 526742, 3634628; 526744, 3634619; 526746, 3634609; 
526747, 3634599; 526747, 3634589; 526747, 3634583; 526744, 3634492; 
526761, 3634446; 526790, 3634400; 526792, 3634397; 526796, 3634389; 
526797, 3634389; 526807, 3634393; 526814, 3634395; 526876, 3634412; 
526877, 3634413; 526887, 3634415; 526897, 3634417; 526902, 3634417; 
526973, 3634424; 526978, 3634425; 526988, 3634425; 526998, 3634425; 
527008, 3634424; 527017, 3634422; 527027,

[[Page 50491]]

3634420; 527029, 3634419; 527087, 3634403; 527095, 3634401; 527104, 
3634397; 527113, 3634393; 527120, 3634389; 527111, 3634389; 527111, 
3634111; returning to 527110, 3634008.
    (iv) Note: Subunit 3C for Acanthomintha ilicifolia is depicted on 
the map in paragraph (7)(x) of this entry.
    (v) Subunit 3D. Land bounded by the following UTM NAD27 coordinates 
(E,N): 527502, 3634924; 527484, 3634918; 527477, 3634916; 527467, 
3634914; 527460, 3634912; 527393, 3634902; 527391, 3634902; 527381, 
3634901; 527371, 3634901; 527314, 3634901; 527314, 3634901; 527304, 
3634901; 527294, 3634902; 527284, 3634904; 527275, 3634906; 527265, 
3634909; 527256, 3634912; 527247, 3634917; 527238, 3634921; 527229, 
3634927; 527221, 3634932; 527214, 3634939; 527206, 3634945; 527200, 
3634953; 527199, 3634953; 527164, 3634993; 527158, 3635001; 527152, 
3635009; 527147, 3635017; 527142, 3635026; 527138, 3635035; 527134, 
3635045; 527132, 3635054; 527129, 3635064; 527128, 3635074; 527127, 
3635076; 527120, 3635142; 527119, 3635150; 527119, 3635160; 527119, 
3635170; 527120, 3635180; 527121, 3635189; 527124, 3635199; 527127, 
3635209; 527130, 3635218; 527130, 3635219; 527172, 3635317; 527176, 
3635326; 527180, 3635335; 527186, 3635343; 527191, 3635351; 527196, 
3635357; 527263, 3635436; 527265, 3635438; 527272, 3635445; 527279, 
3635452; 527280, 3635453; 527285, 3635457; 527376, 3635529; 527378, 
3635530; 527386, 3635536; 527395, 3635541; 527403, 3635546; 527413, 
3635550; 527422, 3635554; 527430, 3635556; 527514, 3635580; 527516, 
3635580; 527525, 3635582; 527535, 3635584; 527545, 3635585; 527555, 
3635585; 527565, 3635585; 527566, 3635585; 527661, 3635578; 527671, 
3635577; 527680, 3635576; 527690, 3635573; 527763, 3635554; 527823, 
3635540; 527827, 3635539; 527837, 3635536; 527846, 3635532; 527855, 
3635528; 527864, 3635524; 527872, 3635518; 527881, 3635513; 527888, 
3635506; 527895, 3635500; 527900, 3635252; 527901, 3635233; 527900, 
3635233; 527896, 3635228; 527895, 3635227; 527529, 3635219; 527494, 
3635218; returning to 527502, 3634924.
    (vi) Note: Subunit 3D for Acanthomintha ilicifolia is depicted on 
the map in paragraph (7)(x) of this entry.
    (vii) Subunit 3E. Land bounded by the following UTM NAD27 
coordinates (E,N): 529307, 3636146; 529297, 3636146; 529297, 3636146; 
529284, 3636147; 529274, 3636148; 529264, 3636149; 529260, 3636150; 
529249, 3636153; 529243, 3636154; 529233, 3636157; 529224, 3636161; 
529215, 3636165; 529210, 3636167; 529197, 3636175; 529193, 3636177; 
529184, 3636182; 529176, 3636188; 529168, 3636194; 529161, 3636201; 
529154, 3636208; 529148, 3636216; 529143, 3636223; 529135, 3636235; 
529134, 3636236; 529129, 3636245; 529124, 3636253; 529120, 3636263; 
529116, 3636272; 529114, 3636279; 529111, 3636290; 529110, 3636292; 
529108, 3636302; 529107, 3636311; 529106, 3636321; 529105, 3636331; 
529106, 3636341; 529107, 3636351; 529107, 3636356; 529110, 3636370; 
529111, 3636376; 529113, 3636386; 529116, 3636395; 529119, 3636405; 
529123, 3636413; 529129, 3636426; 529130, 3636427; 529134, 3636435; 
529140, 3636444; 529145, 3636451; 529160, 3636471; 529161, 3636472; 
529167, 3636480; 529174, 3636487; 529181, 3636494; 529189, 3636500; 
529195, 3636505; 529214, 3636518; 529216, 3636519; 529224, 3636524; 
529233, 3636529; 529242, 3636533; 529251, 3636537; 529258, 3636539; 
529276, 3636544; 529279, 3636544; 529288, 3636547; 529297, 3636548; 
529319, 3636551; 529321, 3636552; 529331, 3636553; 529340, 3636553; 
529350, 3636553; 529360, 3636552; 529370, 3636550; 529373, 3636549; 
529388, 3636546; 529394, 3636544; 529404, 3636542; 529413, 3636538; 
529416, 3636537; 529428, 3636532; 529434, 3636529; 529443, 3636524; 
529451, 3636519; 529459, 3636513; 529467, 3636507; 529474, 3636500; 
529481, 3636493; 529483, 3636490; 529495, 3636476; 529499, 3636471; 
529505, 3636463; 529510, 3636454; 529515, 3636446; 529519, 3636437; 
529523, 3636427; 529525, 3636420; 529531, 3636398; 529532, 3636396; 
529534, 3636386; 529536, 3636376; 529537, 3636366; 529537, 3636356; 
529537, 3636356; 529537, 3636345; 529537, 3636336; 529536, 3636326; 
529534, 3636316; 529532, 3636306; 529529, 3636296; 529525, 3636287; 
529521, 3636278; 529519, 3636273; 529512, 3636262; 529510, 3636258; 
529505, 3636249; 529499, 3636241; 529493, 3636233; 529492, 3636233; 
529480, 3636219; 529474, 3636212; 529466, 3636205; 529459, 3636199; 
529451, 3636193; 529442, 3636188; 529439, 3636186; 529419, 3636175; 
529414, 3636173; 529405, 3636169; 529402, 3636167; 529379, 3636159; 
529373, 3636156; 529363, 3636153; 529354, 3636151; 529347, 3636150; 
529330, 3636147; 529327, 3636147; 529317, 3636146; returning to 529307, 
3636146.
    (viii) Note: Subunit 3E for Acanthomintha ilicifolia is depicted on 
the map in paragraph (7)(x) of this entry.
    (ix) Subunit 3F. Land bounded by the following UTM NAD27 
coordinates (E,N): 530315, 3635191; 530282, 3635194; 530276, 3635194; 
530273, 3635195; 530266, 3635195; 530213, 3635199; 530116, 3635207; 
530086, 3635210; 530086, 3635212; 530086, 3635218; 530085, 3635235; 
530085, 3635238; 530086, 3635248; 530087, 3635258; 530087, 3635259; 
530089, 3635277; 530091, 3635285; 530093, 3635295; 530096, 3635304; 
530099, 3635314; 530100, 3635316; 530109, 3635336; 530112, 3635344; 
530117, 3635352; 530122, 3635361; 530128, 3635369; 530133, 3635374; 
530140, 3635383; 530142, 3635386; 530149, 3635393; 530156, 3635400; 
530164, 3635406; 530172, 3635412; 530176, 3635415; 530186, 3635421; 
530191, 3635424; 530200, 3635428; 530209, 3635432; 530218, 3635436; 
530228, 3635439; 530237, 3635441; 530246, 3635443; 530255, 3635444; 
530257, 3635444; 530265, 3635445; 530264, 3635448; 530263, 3635458; 
530263, 3635458; 530261, 3635472; 530260, 3635481; 530260, 3635491; 
530260, 3635501; 530261, 3635510; 530262, 3635522; 530263, 3635523; 
530264, 3635533; 530266, 3635542; 530269, 3635552; 530273, 3635561; 
530275, 3635567; 530279, 3635575; 530281, 3635578; 530291, 3635578; 
530311, 3635593; 530327, 3635609; 530347, 3635630; 530361, 3635647; 
530364, 3635658; 530367, 3635660; 530377, 3635663; 530386, 3635666; 
530386, 3635666; 530395, 3635669; 530405, 3635672; 530415, 3635673; 
530425, 3635674; 530432, 3635674; 530446, 3635675; 530449, 3635675; 
530459, 3635674; 530469, 3635673; 530479, 3635672; 530488, 3635670; 
530491, 3635669; 530507, 3635664; 530514, 3635662; 530523, 3635659; 
530532, 3635655; 530541, 3635650; 530549, 3635645; 530558, 3635639; 
530565, 3635632; 530571, 3635627; 530581, 3635617; 530582, 3635616; 
530589, 3635609; 530595, 3635601; 530601, 3635593; 530606, 3635585; 
530611, 3635576; 530613, 3635571; 530618, 3635560; 530620, 3635556; 
530628, 3635562; 530636, 3635567; 530645, 3635572; 530649, 3635574; 
530671, 3635584; 530677, 3635587; 530686, 3635590; 530696, 3635593; 
530705, 3635595; 530713, 3635597; 530733, 3635600; 530735, 3635600; 
530729, 3635610; 530729, 3635611; 530725, 3635620; 530721, 3635630; 
530718, 3635639; 530717, 3635643; 530715, 3635652; 530712, 3635655; 
530705, 3635663; 530698, 3635670; 530693, 3635678; 530691, 3635681; 
530686, 3635689; 530682, 3635695; 530677, 3635704; 530673, 3635713; 
530670,

[[Page 50492]]

3635722; 530668, 3635728; 530665, 3635738; 530664, 3635742; 530662, 
3635751; 530660, 3635761; 530659, 3635771; 530659, 3635781; 530659, 
3635791; 530659, 3635792; 530655, 3635802; 530654, 3635804; 530651, 
3635813; 530648, 3635823; 530646, 3635833; 530644, 3635842; 530644, 
3635846; 530642, 3635857; 530642, 3635864; 530641, 3635874; 530642, 
3635884; 530643, 3635894; 530643, 3635898; 530645, 3635906; 530646, 
3635912; 530648, 3635922; 530651, 3635932; 530654, 3635941; 530656, 
3635944; 530660, 3635953; 530663, 3635959; 530667, 3635968; 530673, 
3635976; 530673, 3635977; 530679, 3635985; 530684, 3635992; 530690, 
3636000; 530697, 3636007; 530704, 3636014; 530707, 3636017; 530717, 
3636024; 530721, 3636028; 530729, 3636034; 530738, 3636039; 530741, 
3636041; 530747, 3636044; 530752, 3636047; 530761, 3636051; 530771, 
3636054; 530780, 3636057; 530781, 3636058; 530790, 3636060; 530799, 
3636062; 530809, 3636064; 530819, 3636065; 530829, 3636065; 530833, 
3636065; 530844, 3636065; 530850, 3636064; 530860, 3636063; 530870, 
3636062; 530880, 3636059; 530889, 3636057; 530899, 3636053; 530906, 
3636050; 530906, 3636050; 530915, 3636046; 530920, 3636043; 530923, 
3636048; 530929, 3636059; 530930, 3636060; 530935, 3636069; 530941, 
3636077; 530947, 3636085; 530954, 3636092; 530961, 3636099; 530969, 
3636105; 530974, 3636108; 530988, 3636118; 530991, 3636121; 531000, 
3636126; 531008, 3636131; 531018, 3636135; 531027, 3636138; 531036, 
3636141; 531046, 3636144; 531056, 3636145; 531066, 3636146; 531073, 
3636146; 531089, 3636147; 531092, 3636147; 531102, 3636146; 531112, 
3636145; 531122, 3636144; 531132, 3636142; 531141, 3636139; 531149, 
3636136; 531163, 3636130; 531164, 3636130; 531173, 3636125; 531182, 
3636121; 531191, 3636116; 531199, 3636110; 531206, 3636103; 531213, 
3636097; 531223, 3636087; 531224, 3636086; 531231, 3636079; 531237, 
3636071; 531243, 3636063; 531248, 3636055; 531253, 3636046; 531257, 
3636037; 531260, 3636028; 531262, 3636024; 531268, 3636003; 531270, 
3635997; 531272, 3635987; 531274, 3635978; 531275, 3635968; 531275, 
3635958; 531275, 3635951; 531274, 3635927; 531274, 3635925; 531272, 
3635895; 531272, 3635893; 531271, 3635883; 531269, 3635873; 531267, 
3635864; 531264, 3635854; 531257, 3635832; 531257, 3635832; 531253, 
3635822; 531249, 3635813; 531244, 3635804; 531239, 3635796; 531233, 
3635788; 531230, 3635784; 531224, 3635776; 531221, 3635772; 531214, 
3635765; 531206, 3635758; 531206, 3635758; 531206, 3635755; 531203, 
3635746; 531203, 3635744; 531200, 3635734; 531201, 3635728; 531201, 
3635727; 531202, 3635717; 531202, 3635707; 531202, 3635697; 531201, 
3635687; 531198, 3635665; 531198, 3635665; 531197, 3635655; 531194, 
3635645; 531191, 3635636; 531188, 3635626; 531184, 3635617; 531183, 
3635616; 531171, 3635593; 531167, 3635585; 531162, 3635576; 531156, 
3635568; 531150, 3635560; 531143, 3635553; 531122, 3635532; 531122, 
3635532; 531115, 3635525; 531107, 3635519; 531105, 3635517; 531085, 
3635503; 531071, 3635491; 531069, 3635489; 531060, 3635483; 531052, 
3635478; 531043, 3635473; 531034, 3635469; 531031, 3635468; 531014, 
3635462; 531008, 3635460; 530999, 3635457; 530989, 3635454; 530979, 
3635453; 530969, 3635452; 530959, 3635451; 530954, 3635452; 530940, 
3635452; 530936, 3635452; 530936, 3635452; 530938, 3635442; 530940, 
3635432; 530941, 3635422; 530941, 3635412; 530941, 3635402; 530940, 
3635392; 530938, 3635383; 530938, 3635379; 530930, 3635343; 530928, 
3635337; 530925, 3635327; 530922, 3635319; 530910, 3635289; 530910, 
3635288; 530906, 3635279; 530904, 3635275; 530888, 3635245; 530885, 
3635240; 530880, 3635232; 530828, 3635152; 530827, 3635151; 530824, 
3635147; 530633, 3635163; 530487, 3635176; 530329, 3635190; returning 
to 530315, 3635191.
    (x) Note: Map of Unit 3, Subunits 3B, 3C, 3D, 3E, and 3F, follows:
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BILLING CODE 4310-55-C
    (8) Unit 4: San Diego County, California. From USGS 1:24,000 
quadrangle maps Alpine and Dulzura.
    (i) Subunit 4A. Land bounded by the following UTM NAD27 coordinates 
(E,N): 512272, 3623323; 512234, 3623334; 512185, 3623361; 512163, 
3623400; 512214, 3623403; 512216, 3623412; 512233, 3623405; 512281, 
3623398; 512302, 3623368; 512301, 3623330; 512297, 3623324; returning 
to 512272, 3623323.
    (ii) Note: Subunit 4A for Acanthomintha ilicifolia is depicted on 
the map in paragraph (8)(iv) of this entry.
    (iii) Subunit 4C Land bounded by the following UTM NAD27 
coordinates (E,N): 512490, 3621562; 512502, 3621562; 512500, 3621561; 
512498, 3621559; 512495, 3621558; 512493, 3621557; 512490, 3621556; 
512487, 3621555; 512485, 3621553; 512482, 3621552; 512479, 3621551; 
512476, 3621550; 512474, 3621550; 512471, 3621549; 512468, 3621548; 
512465, 3621547; 512462, 3621546; 512460, 3621546; 512457, 3621545; 
512454, 3621545; 512451, 3621544; 512448, 3621544; 512445, 3621543; 
512442, 3621543; 512439, 3621543; 512437, 3621543; 512434, 3621543; 
512431, 3621543; 512428, 3621542; 512425, 3621543; 512422, 3621543; 
512419, 3621543; 512416, 3621543; 512413, 3621543; 512411, 3621543; 
512408, 3621544; 512405, 3621544; 512402, 3621545; 512399, 3621545; 
512396, 3621546; 512393, 3621546; 512391, 3621547; 512388, 3621548; 
512385, 3621549; 512382, 3621550; 512379, 3621550; 512377, 3621551; 
512374, 3621552; 512371, 3621553; 512369, 3621555; 512366, 3621556; 
512363, 3621557; 512361, 3621558; 512358, 3621559; 512355, 3621561; 
512353, 3621562; 512351, 3621563; 512351, 3621564; 512490, 3621562; 
returning to 512490, 3621562.
    (iv) Note: Map of Unit 4, Subunits 4A and 4C follows:
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* * * * *

    Dated: August 13, 2008.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
 [FR Doc. E8-19194 Filed 8-25-08; 8:45 am]
BILLING CODE 4310-55-P