Federal Register, Volume 63 Issue 197 (Tuesday, October 13, 1998)

[Federal Register Volume 63, Number 197 (Tuesday, October 13, 1998)]
[Rules and Regulations]
[Pages 54938-54956]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-26858]

[[Page 54937]]

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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; Determinations of
Endangered or Threatened Status; Final Rules and Withdrawal of Proposed
Rule

Federal Register / Vol. 63, No. 197 / Tuesday, October 13, 1998 /
Rules and Regulations

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AD38

Endangered and Threatened Wildlife and Plants; Determination of
Endangered or Threatened Status for Four Plants From Southwestern
California and Baja California, Mexico

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: The Fish and Wildlife Service (Service) determines endangered
status for one plant Monardella linoides ssp. viminea (willowy
monardella) throughout its historic range in southwestern California
and northwestern Baja California, Mexico, and threatened status for
three plants: Acanthomintha ilicifolia (San Diego thornmint), Dudleya
stolonifera (Laguna Beach dudleya), and Hemizonia conjugens (Otay
tarplant) throughout their historic ranges in southwestern California
and northwestern Baja California, Mexico, under the Endangered Species
Act of 1973, as amended (Act). These four species occur in coastal sage
scrub, chaparral, and grassland habitats and are threatened by a
variety of factors including urban and agricultural development,
competition from nonnative plant species, off-road vehicle use, mining,
grazing, and trampling by hikers. This rule implements the Federal
protection and recovery provisions afforded by the Act for these four
plant species.

DATES: This rule is effective on November 12, 1998.

ADDRESSES: The complete file for this rule is available for public
inspection, by appointment, during normal business hours at the U.S.
Fish and Wildlife Service, Carlsbad Field Office, 2730 Loker Avenue
West, Carlsbad, California 92008.

FOR FURTHER INFORMATION CONTACT: Dr. Gary D. Wallace, Botanist (see
ADDRESSES section) (telephone 760/431-9440; FAX 760/431-9624).

SUPPLEMENTARY INFORMATION:

Background

Acanthomintha ilicifolia (San Diego thornmint), Monardella linoides
ssp. viminea (willowy monardella), and Hemizonia conjugens (Otay
tarplant) occur in San Diego County, California, and northwestern Baja
California, Mexico. Dudleya stolonifera (Laguna Beach liveforever) is
restricted to the San Joaquin Hills of Orange County, California. These
species occur in coastal sage scrub, grasslands on clay soils, or in a
mosaic of sage scrub, chaparral, and riparian scrub habitats.
Typically, areas with Mediterranean climates such as southern
California have numerous rare, locally endemic (native) species (Cody
1986). Southern California has the highest concentration of locally
endemic plant species in the United States (Gentry 1986) and currently
has one of the highest human population growth rates in the country.
From 1950 to 1990, the human population of San Diego County increased
by 349 percent, and the population of Orange County increased by 1,015
percent (California Department of Finance 1993). Most of these
increases occurred within or near sites historically occupied, in part,
by coastal sage scrub. Between 1990 and 2015, the number of occupied
housing units in San Diego County is expected to increase by 45 percent
(City of San Diego and U.S. Fish and Wildlife Service 1996a).
By the 1980's, nearly 90 percent of the entire coastal sage scrub
ecosystem in California had been lost (Westman 1981a, 1981b). In San
Diego County, 95 percent of the native perennial grasslands and nearly
60 percent of the coastal sage scrub have been eliminated as a result
of urban and agricultural development (Oberbauer and Vanderweir 1991,
San Diego Association of Governments 1995). About 220,000 acres of
coastal sage scrub remain in San Diego County (U.S. Fish and Wildlife
Service, in litt. 1996).
Habitat destruction or modification adversely affects species
native to this area by reducing population densities and contributing
to habitat fragmentation. Rapid urbanization and agricultural
conversion in Orange and San Diego Counties has already eliminated or
reduced populations of the four plant species addressed in this final
rule. The trend of habitat loss and fragmentation is expected to
continue as the population of southern California expands. These
species are also adversely affected by the invasion of nonnative
plants, off-road vehicle (ORV) use, increased erosion, grazing, and
trampling by humans.
Populations of these four species in Baja California are also
threatened by land use practices. For example, Bowler (1990) and
Oberbauer (1992) reported that coastal scrub vegetation in northern
Baja California is being grazed, burned to increase grass production,
and rapidly converted to row-crop agriculture or condominiums,
campgrounds and resort housing. Rea and Weaver (as cited in Atwood
1990) also noted that coastal sage scrub in Baja California ``* * * has
been seriously degraded by burning, grazing, and conversion to
vineyards during the past two decades.''

Discussion of the Four Species

Acanthomintha ilicifolia (San Diego thornmint) was first described
by Asa Gray (1872) as Calamintha ilicifolia, based on a specimen
collected from ``California, probably lower California.'' Gray (1878)
subsequently renamed the species Acanthomintha ilicifolia. This species
is an annual aromatic herb of the mint family (Lamiaceae). Members of
this genus have paired leaves and several sharply spined 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. The tubular, two-lipped corollas
(petals) are white with rose markings on the lower lip.
Acanthomintha ilicifolia usually occurs on heavy clay soils in
openings within coastal sage scrub, chaparral and native grassland of
coastal San Diego County and in isolated populations south to San Telmo
in northern Baja California, Mexico (Beauchamp 1986; Reiser 1996; U.S.
Fish and Wildlife Service, unpubl. data). Acanthomintha ilicifolia is
frequently associated with gabbro soils which are derived from igneous
rock and also occurs in calcareous marine sediments.
About 40 percent of 52 historic populations of Acanthomintha
ilicifolia in the United States have been extirpated (i.e., no longer
exist). Currently, there are about 150,000-170,000 individuals in 32
populations in the United States, ranging from San Marcos east to
Alpine and south to Otay Mesa in San Diego County (California Native
Natural Diversity Data Base (CNDDB) 1997, Reiser 1996, Roberts 1997a).
This species occupies an estimated 156 hectares (ha) (400 acres (ac)).
About 60 percent of the reported individuals are concentrated in four
populations (Sycamore Canyon, Slaughterhouse Canyon, and two
populations on Viejas Mountain). At least nine sites are known to have
recently supported A. ilicifolia in Baja California, Mexico. The
current status of this species in Mexico is uncertain.
Of the 32 extant populations of Acanthomintha ilicifolia, 11 are
considered major populations (i.e., supporting over 3,000 individuals
each). Four of these major populations are located within the Multiple
Species Conservation Program (MSCP) planning subregion of southern San
Diego

[[Page 54939]]

County, California. Two of these, Sabre Springs (private ownership) and
Sycamore/Slaughterhouse canyons (San Diego County ownership) are
adequately conserved by the MSCP (City of San Diego and U.S. Fish and
Wildlife Service 1996b). Another population, Asphalt Inc. (private
ownership) is in the MSCP outside the Multiple Habitat Preserve Area
(MHPA) but will receive significant conservation benefits within the
Metro-Lakeside-Jamul segment of the MSCP of the County of San Diego.
The last of these four populations, Otay Lakes Northeast (private
ownership) is not adequately protected. The remaining seven major
populations are located either north or east of the MSCP subregion
(CNDDB 1997, Roberts 1997a). Of these seven major populations, four are
located within lands managed by the Forest Service (on Viejas and Poser
mountains). The three remaining major populations and the majority of
the smaller populations are on lands managed by private landowners.
Dudleya stolonifera (Laguna Beach liveforever) was first described
by Reid Moran (1949) based on a specimen he collected in 1948 from
Aliso Canyon in Orange County. Dudleya stolonifera is a succulent
perennial member of the stonecrop family (Crassulaceae) and has basal
rosettes of flat, oblong, bright green leaves arising from a woody
base. Its flowers have bright yellow-green petals that are fused near
their base. Dudleya stolonifera is distinguished by its branching
stolons (horizontal stems that root at the nodes) and lateral
vegetative branches that arise from the basal rosette (Moran 1977).
Dudleya stolonifera is found only in the vicinity of Laguna Beach
(Orange County) on steep cliffs in canyons. Dudleya stolonifera is
primarily restricted to weathered sandstone rock outcrops on cliffs in
microhabitats within coastal sage scrub or chaparral.
This species is known from only 6 populations, which collectively
contain up to 10,000 individuals. Four of the six populations
collectively contain over 95 percent of all known individual plants.
Two populations of Dudleya stolonifera have been reduced by urban
development. The westernmost portion and the main portion of the Aliso
Gorge population have been eliminated. Approximately half of the Canyon
Acres population of D. stolonifera has been cleared by the landowner
(CNDDB 1997).
The range of Dudleya stolonifera lies entirely within the
boundaries of the Central/Coastal subregion of the State's Natural
Communities Conservation Planning (NCCP) area. One of the four major
populations is within the lands designated as a preserve within the
Central/Coastal subregion. This population is on a State ecological
preserve predating the NCCP program. The other three major populations,
representing about 70 percent of the individuals of this species, are
found on private lands managed by nonparticipating landowners. One
minor population is within lands designated as a preserve within the
Central/Coastal subregion.
Hemizonia conjugens (Otay tarplant) was first described by David D.
Keck (1958) based on a specimen collected by L.R. Abrams in 1903 from
river bottom land in the Otay Valley area of San Diego. Hemizonia
conjugens, a glandular, aromatic annual in the sunflower family
(Asteraceae), has a branching stem from 5 to 25 centimeters (cm) (2.0
to 9.8 inches (in)) in height and deep green or gray-green leaves
covered with soft, shaggy hairs. The yellow flower heads are composed
of 8-10 ray flowers and 13-21 disk flowers with hairless or sparingly
downy corollas (petals). The phyllaries (bracts, or modified leaves,
below the flower head) are keeled with short-stalked glands and large,
stalkless, flat glands near the margins. Hemizonia conjugens occurs
within the range of Hemizonia fasciculata and Hemizonia paniculata
(Tanowitz 1982). Hemizonia conjugens can be distinguished from these
species in having 8-20 ray flowers.
Three of the 25 historic localities of Hemizonia conjugens in the
United States are considered to be extirpated (Hogan 1990; Sandy Morey,
Coordinator for the Endangered Plant Program, California Department of
Fish and Game (CDFG), in litt. November 1994). It is likely, however,
that other unreported populations have also been eliminated as about 70
percent of the suitable habitat for this species within its known range
has been developed or is under cultivation. Hemizonia conjugens
currently has a limited distribution near Otay Mesa in southern San
Diego County, California; there is one known population near the United
States border in Baja California, Mexico (Sandy Morey, Endangered
Plants Program Coordinator, CDFG, in litt. 1994; CDFG 1994, Reiser
1996, CNDDB 1997, Roberts 1997b).
Hemizonia conjugens distribution is highly correlated with the
distribution of clay soils or clay subsoils (Sandy Morey, in litt.
November 1994). This species is typically found in clay soils on slopes
and mesas within native and mixed (native and nonnative) grassland or
open coastal sage scrub habitats. The majority of H. conjugens
populations are associated with native grasslands, mixed grasslands
(i.e., native grassland interspersed with nonnative grass species such
as Bromus diandrus (ripgut grass), Bromus madritensis (foxtail chess),
and Hordeum murinum (hare barley)) and open, grassy coastal sage scrub.
About 11,930 ha (30,310 ac) of land with clay soils or clay
subsoils are situated within the general range of Hemizonia conjugens
in San Diego County (City of San Diego and U.S. Fish and Wildlife
Service 1997). Clay soils are heavy (dense) and favor grassland
development. It is likely that much of this area was once vegetated
with native grassland and open and grassy coastal sage scrub, which
provided suitable habitat for H. conjugens. About 4,200 ha (10,600 ac)
(about 37 percent) of this area has been urbanized and about 4,155 ha
(10,555 ac) (about 37 percent) has been cultivated. Although the
cultivated lands could be restored to natural habitat capable of
supporting H. conjugens, these areas do not currently support this
species and are not likely to support the species in the foreseeable
future based on proposed land use. Thus, only about 3,415 ha (8,530 ac)
of habitat with the appropriate soils are currently available to the
species. This represents about 30 percent of the historically available
area (City of San Diego and U.S. Fish and Wildlife Service 1997). Fewer
than 250 ha (650 ac) of areas with appropriate soil types are known to
be occupied by H. conjugens.
Hemizonia conjugens, like many annual species, can vary
significantly in numbers of individuals from one year to the next due
to a variety of factors, including rainfall, timing of rainfall, and
temperature. In the 22 extant populations in California, there may be
as many as 300,000 individuals under favorable conditions (CNDDB 1997,
Roberts 1997b); however, the number of individuals in any given year is
probably considerably less. Without knowledge of the species'
demography, seedbank and seedbank dynamics, estimations of effective
population size are impossible. Until its rediscovery in Baja
California in 1977, this species was considered potentially extinct in
California as a result of extensive development within its range
(Tanowitz 1978).
Of the 22 extant populations of Hemizonia conjugens in California,
12 are considered major populations (i.e., having more than 1000
individuals). The largest population complex, Horseshoe Bend-Gobblers
Knob (Rancho San Miguel), supports about 200,000 individuals, more than
65 percent of all

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known plants. Although all individuals in the Rancho San Miguel complex
have been reported as Hemizonia conjugens, variations in soil
substrates suggest that about 23,000 individuals may be Hemizonia
paniculata (OGDEN 1992a, Stone 1994, San Diego Gas and Electric 1995,
Roberts 1997b). The five largest populations of Hemizonia conjugens
(Horseshoe Bend-Gobblers Knob (Rancho San Miguel), Rice Canyon, Poggi
Canyon, Proctor Valley, and Dennery Canyon) support about 94 percent of
all reported individuals (OGDEN 1992a; Stone 1994; San Diego Gas and
Electric 1995; Morey, in litt. 1994; City of San Diego and U.S. Fish
and Wildlife Service 1996b; Roberts 1997b). Of the 17 remaining
populations 7 are reported to support from 1,000 to 6,000 individuals
each, and 10 support fewer than 1,000 individuals each. All populations
of this species in the United States are on private lands.
Hemizonia conjugens appears to tolerate mild levels of disturbance
such as light grazing (Dr. Barry Tanowitz, University of California,
Santa Barbara, in litt. 1977; Hogan 1990). Such mild disturbances
create sites necessary for germination (Tanowitz, in litt. 1977);
however, the species is otherwise threatened by activities such as
development and intensive agriculture.
Monardella linoides ssp. viminea was first described by Edward L.
Greene (1902) as Monardella viminea based on a specimen collected by
George Vasey in 1880. Greene (1906) later proposed the combination
Monardella viminea. Munz (1935) reduced this taxon to the rank of
variety as Monardella linoides ssp. viminea. Abrams (1951) published
the currently accepted combination of Monardella linoides ssp. viminea.
Monardella linoides ssp. viminea is a perennial herb in the mint
family (Lamiaceae) with a woody base and aromatic foliage. The leaves
of this species are linear to lanceolate (lance-shaped). Greenish-
white, often rose-tipped bracts are below dense terminal heads of pale
white to rose-colored flowers. This species can be distinguished from
other members of the genus by its glaucous (waxy) green, hairy stems
and its conspicuously gland-dotted bracts.
Monardella linoides ssp. viminea often grows in sandy washes and
floodplains and is frequently associated with Eriogonum fasciculatum
(California buckwheat), Platanus racemosa (sycamore), Quercus agrifolia
(coast live oak), Artemisia californica (California sagebrush), and
Baccharis sarothroides (coyotebush) (Scheid 1985). Monardella linoides
ssp. viminea primarily inhabits washes in coastal sage scrub or
riparian scrub habitats.
Populations of Monardella linoides ssp. viminea, which are
concentrated in the Miramar area of San Diego County, extend south into
Baja California, Mexico. This species was previously known from 27
occurrences in the United States. Approximately 6,000 individuals of M.
linoides ssp. viminea from 20 occurrences are thought to currently
exist in the United States (Reiser 1996, CNDDB 1997). All populations,
with the exception of 2 populations of approximately 200 individuals
each (Cedar Canyon and Marron Valley) occur between Penasquitos Canyon
and Mission Gorge in San Diego County. Fifteen populations have fewer
than 100 plants, and 6 of these populations contain fewer than 15
individuals. Most populations occur on Federal land at Marine Corps Air
Station, Miramar, including one of the largest populations. About 1,700
individuals were reported at that locale in 1994 (R.G. Fahey,
Lieutenant Commander, CEC, U.S. Navy, in litt. 1995). One population
occurs near Arroyo Jatay in northern Baja California, Mexico.

Previous Federal Actions

Federal government action on the four plant species considered in
this rule began with section 12 of the Act, which directed the
Secretary of the Smithsonian Institution to prepare a report on those
plants considered to be endangered, threatened, or extinct. This report
(House Document No. 94-51) was presented to Congress on January 9,
1975, and included Acanthomintha ilicifolia, Dudleya stolonifera,
Monardella linoides ssp. viminea, and Hemizonia conjugens as
endangered. The Service published a notice on July 1, 1975 (40 FR
27823) of its acceptance of the report of the Smithsonian Institution
as a petition (under section 4(c)(2) of the Act, but now covered under
section 4(b)(3)) and of the Service's intention to review the status of
the plant species named in the report. On June 16, 1976, the Service
proposed to determine approximately 1,700 vascular plant species,
including A. ilicifolia, D. stolonifera, H. conjugens, and M. linoides
ssp. viminea, to be endangered species (41 FR 24523) as defined by
section 4 of the Act. General comments received in response to the 1976
proposal were summarized in an April 26, 1978, notice (43 FR 17909).
The Act amendments of 1978 required that all proposals over two
years old be withdrawn. A one-year grace period was given to those
proposals already more than two years old. In a December 10, 1979
notice (44 FR 70796), the Service published a notice of withdrawal of
the outstanding portion of the June 16, 1976, proposal, including the
four species considered in this listing.
The Service published an updated Notice of Review of plants on
December 15, 1980 (45 FR 82480). This notice included Acanthomintha
ilicifolia, Dudleya stolonifera, Hemizonia conjugens, and Monardella
linoides ssp. viminea as category 1 candidates (i.e., those species for
which substantial information on biological vulnerability and threats
is available to support preparation of listing proposals).
The 1982 amendments to the Act required that all petitions pending
on October 13, 1982, be treated as having been newly submitted on that
date (section 2(b)(1)). The 1975 Smithsonian report, including the four
subject species, was accepted as a petition. The Service is required to
determine within 12 months of the receipt of a petition (section
4(b)(3)(B)) whether the petitioned action is not warranted, is
warranted, or is warranted but precluded by other pending listing
actions of higher priority (section 4(b)(3)(B)(iii)). On October 13,
1983, the Service found that the petitioned listing of these species
was warranted but precluded and published the notification of this
finding on January 20, 1984 (49 FR 2485). A warranted but precluded
petition must be recycled (section 4(b)(3)(C)(1)), and the finding was
reviewed annually from October of 1984 through 1992.
On November 28, 1983, the Service published (48 FR 53640) a
supplement to the 1980 Notice of Review. This supplement treated
Acanthomintha ilicifolia, Monardella linoides ssp. viminea, and
Hemizonia conjugens as category 2 candidates (i.e., species for which
data in the Service's possession indicated listing was possibly
appropriate but for which substantial information on biological
vulnerability and threats were not known or on file to support
preparation of proposed rules). Dudleya stolonifera was not included as
either a category 1 or category 2 candidate in the 1983 Notice of
Review.
In the September 27, 1985 revised Notice of Review for plants (50
FR 39526), Dudleya stolonifera was included as a category 1 species,
and Acanthomintha ilicifolia, Hemizonia conjugens, and Monardella
linoides ssp. viminea were included as category 2 species. Enough data
were subsequently gathered to include A. ilicifolia as a category 1
species in the February 21, 1990, Notice of Review (50 FR 45242).

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On December 14, 1990, the Service received a petition dated
December 5, 1990, from Mr. David Hogan of the San Diego Biodiversity
Project, to list Hemizonia conjugens as endangered. The petition also
requested designation of critical habitat. On January 7, 1991, the
Service received another petition from Mr. Hogan, dated December 30,
1990, to list Acanthomintha ilicifolia as endangered. This petition
also requested designation of critical habitat. Acanthomintha
ilicifolia and H. conjugens were included in the Smithsonian
Institution's Report of 1975 that had been accepted as a petition. The
Service, therefore, regarded Mr. Hogan's petitions to list these two
species as second petitions.
In the September 30, 1993 Notice of Review revision (58 FR 51144),
Dudleya stolonifera and Acanthomintha ilicifolia remained as category 1
candidate species, and Hemizonia conjugens and Monardella linoides ssp.
viminea remained as category 2 candidate species. The Service made a
final ``not warranted'' finding on the 1975 petition with respect to A.
ilicifolia, M. linoides ssp. viminea, and 863 other species in the
December 9, 1993, Federal Register (58 FR 64828). This finding was
based on the lack of data relating to current threats throughout a
significant portion of the species' ranges (i.e., one of the five
factors described within the proposed rule under 50 CFR 424.11). These
species were retained in category 2 on the basis that they may be
subject to extinction or endangerment from loss of habitat or from
other human-caused changes to their environment (58 FR 64840). Use of
the category 2 designation was discontinued in the February 28, 1996,
Notice of Review (61 FR 7596).
In 1994, the Service obtained complete data that adequately
described those factors that placed Acanthomintha ilicifolia and
Monardella linoides ssp. viminea at risk of extinction. The Service
ultimately responded to the Smithsonian and Hogan petitions by
publishing a proposed rule to list Acanthomintha ilicifolia, Dudleya
stolonifera, Hemizonia conjugens, and Monardella linoides ssp. viminea
as endangered in the Federal Register on August 9, 1995 (60 FR 40549).
On April 10, 1995, a moratorium on final listings was imposed by
Congress. Until the moratorium was lifted on April 26, 1996, the
Service was not allowed to complete any final listing actions.
The Service published Listing Priority Guidance for Fiscal Years
1998 and 1999 on May 8, 1998 (63 FR 25502). The guidance clarifies the
order in which the Service will process rulemakings giving highest
priority (Tier 1) to processing emergency rules to add species to the
Lists of Endangered and Threatened Wildlife and Plants (Lists); second
priority (Tier 2) to processing final determinations on proposals to
add species to the Lists, processing new proposals to add species to
the Lists, processing administrative findings on petitions (to add
species to the Lists, delist species, or reclassify listed species),
and processing a limited number of proposed or final rules to delist or
reclassify species; and third priority (Tier 3) to processing proposed
or final rules designating critical habitat. Processing of this final
rule is a Tier 2 action.

Summary of Comments and Recommendations

In the August 9, 1995, proposed rule (60 FR 40549) and associated
notifications, all interested parties were requested to submit factual
reports or information that might contribute to the development of a
final rule. The comment period closed on October 9, 1995. Appropriate
State agencies, County governments, Federal agencies and other
interested parties were contacted and requested to comment. Public
notices announcing the publication of the proposed rule were published
in the San Diego Union Tribune in San Diego County on August 11, 1995,
and the Orange County Register on August 16, 1995. No request for a
public hearing was received.
A total of 20 written comments was received. Four commenters did
not address the proposed listing action directly, or support or oppose
the listing of these species. Ten commenters supported the listing, and
6 commenters opposed the proposed listing; however, only 8 of the 16
commenters supporting or opposing the listing addressed all 4 species.
Information from a number of these comments has been incorporated into
the final rule. The Service's responses to each of 12 relevant issues
raised in these comments are as follows.
Issue 1: One commenter expressed concern that the proposed listing
of these plants appeared to be in response to litigation and not
objective science. This comment apparently is in reference to a court
settlement with the California Native Plant Society to render decisions
on 159 category 1 plant species by March 31, 1996. This same commenter
also expressed concern that there was inadequate staff resources to
properly analyze data relevant to the decision-making process. The
commenter cited ``significant deficiencies'' in the database upon which
the Service relied to determine if these species should be listed.
Service Response: The Service disagrees that there are significant
deficiencies in the data used in the decision-making process for the
four species listed in this rule. The commenter did not supply any data
that would have changed the Service's finding.
The court settlement with the California Native Plant Society did
influence the timing of the review of the current status of Dudleya
stolonifera and Hemizonia conjugens; however, Acanthomintha ilicifolia
and Monardella linoides ssp. viminea were not part of the original
lawsuit settlement. The Service determined that these species would
likely qualify for listing as endangered species as early as 1976 (see
``Previous Federal Action'' section of this rule). Actions of higher
priority precluded a review of the status of these species for nearly
two decades. The lawsuit settlement prompted the Service to review D.
stolonifera and H. conjugens and 157 other species as high priority
actions. The lawsuit, however, did not require any specific action with
regard to the 159 species, only that the conservation status of each
species be resolved through publication of a ``not warranted'' finding
or a proposed rule to list the species. A review of the data in the
Services' files and data obtained during 1992 and 1993 demonstrated
that A. ilicifolia and M. linoides ssp. viminea also needed protection
under the Act and resulted in publication of a proposed rule to list
these species in 1995.
The Service acknowledges that botanical staff resources were
limited at the time the settlement was concluded in 1991, and this
limitation resulted in delays. In addition, Congress imposed a listing
moratorium from April 10, 1995, through April 26, 1996, which precluded
the Service from rendering final listing decisions. Subsequent to the
lifting of the moratorium, the Service had inadequate staff and funding
to process the backlog of final listing actions (243 proposed species)
that accumulated because of the moratorium; other listing activities
(petition findings, new proposals of candidates species, and
withdrawals) were delayed, as well. In response, the Service adopted
guidelines for the processing of listing actions.
Issue 2: One commenter claimed that the proposed rule both ignored
important existing population data and lacked sufficient population
data to support a listing of Acanthomintha ilicifolia, Hemizonia
conjugens, and Monardella linoides ssp. viminea. The

[[Page 54942]]

commenter noted that, although the proposed rule claimed that there
were 20 extant populations of A. ilicifolia, the MSCP data base
contains 41 populations. The commenter stated that the MSCP localities
for the southwestern quarter of San Diego County alone is twice the
previous Service estimate for the entire U.S. range. One commenter
claimed to have supplied the CDFG with data on the status of 25
populations of H. conjugens. The commenter asserted that the estimate
of 15 extant populations of H. conjugens in the proposed rule is an
underestimate and an indication that the Service did not use all
available data in its analysis. The commenter also noted that the
Service failed to provide an estimate for the number of individuals of
H. conjugens.
Service Response: In preparation of the MSCP database maps,
``points'' were applied to represent species localities. A point may
describe information ranging from an individual plant, a population, or
an undefined number of individuals, unless specifically defined. A
cluster of points may represent colonies or individuals in proximity
that are not necessarily discrete populations. ``Points'' are also
known to represent isolated or fragmented populations that have been
significantly reduced, or in some cases, are recently extirpated
localities. Differences in numbers of ``points'' between the MSCP
database (based on unpublished data supplied by OGDEN in 1996) and
figures used in the proposed rule (based on a variety of sources)
result from differences in defining populations.
Thirty-nine Acanthomintha ilicifolia ``points'' are reported in the
most recent MSCP database (City of San Diego and U.S. Fish and Wildlife
Service 1996b; U.S. Fish and Wildlife Service, unpubl. data). The
Service has determined that these 39 ``points'' or point locations
constitute 15 of the 32 currently known extant populations of A.
ilicifolia in the U.S. The remaining 17 populations are located outside
of the MSCP planning area. A number of populations of A. ilicifolia
were not known at the time the proposed rule was prepared. However,
these new localities face the same threats as previously known
populations, therefore, the status of the species has not significantly
improved.
The Natural Heritage Division of CDFG has reported Rancho San
Miguel (Horseshoe Bend-Gobblers Knob) as supporting four separate
occurrences of Hemizonia conjugens (CNDDB 1997). The MSCP database
represents these populations with 20 ``points.'' Because of their
proximity and similarity in habitat, the Service is treating ``points''
in this complex as a single extended population for purposes of this
document. A single extended population of H. conjugens is recognized by
the Service and CDFG within the Otay River Valley. This population is
represented by 43 ``points'' within the MSCP database. A recent survey
of this population located only 10 individual plants (Stone 1994). A
discussion regarding population estimates for Hemizonia conjugens has
been included under the ``Discussion of the Four Species'' section of
this rule. The Service is currently aware of 22 extant populations of
H. conjugens, 7 more than were known in 1994. Although the number of
known sites has increased, the majority of the new localities are also
threatened; therefore, the status of the species has not significantly
improved.
The commenter did not supply substantive information regarding
Monardella linoides ssp. viminea; however, the species' distribution is
fairly well-known. Although other populations may eventually be found,
the Service considers the data available to be sufficient. Only 5 of
the 20 extant populations have at least 100 individuals. The Service
believes this reduction in numbers and distribution of M. linoides ssp.
viminea combined with threats to the remaining populations (urban
development, sand and gravel mining, ORVs, fire, trampling, trash
dumping, and erosion) support the listing of this species as
endangered.
Issue 3: One commenter claimed that the Service was obliged to
survey thoroughly for the three San Diego County species before
reaching a final decision regarding the listing of the three species.
The commenter noted that the proposed rule indicated that Acanthomintha
ilicifolia is frequently associated with gabbro clay soils and occurs
in calcareous marine sediments. Data compiled for the MSCP indicate
that the majority of these areas occur east of substantial development
within the subregion and that many of these areas have not been
systematically surveyed for A. ilicifolia. The commenter argued that
these areas should be thoroughly surveyed before a final decision can
be reached. The commenter also questioned the known status of A.
ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea,
in Baja California, Mexico, claiming that the Service has not
demonstrated that thorough surveys have been conducted in these areas.
Service Response: The Service concludes, as detailed in the
``Background'' and ``Summary of Factors Affecting the Species''
sections of this rule, that sufficient biological data exist to warrant
listing of the three plant species under the Act. Although the Service
acknowledges that additional populations of these rare plant species
may be discovered in San Diego County, California, it is likely that
these populations would be subject to the same threats that currently
place known populations at risk. For example, existing data indicate
that Monardella linoides ssp. viminea primarily occurs in washes at low
elevations along the coast. The species is unlikely to be found at the
higher elevations along the eastern boundary of the MSCP subregion
where appropriate habitat is uncommon. Additional unreported
populations of this species would likely be situated in areas subject
to urbanization and related impacts.
The general distribution limits of Hemizonia conjugens are fairly
well-understood. Significant populations of this species are not likely
to occur at higher elevations along the eastern border of the MSCP due
to a lack of preferred habitat (mesas and rolling hills with clay soils
or clay subsoils). Although additional populations may be located
within the range of H. conjugens, these populations would likely be
threatened given the current nature and extent of fragmentation,
cultivation, and proposed urbanization throughout the range of the
species.
Of the three San Diego taxa, only Acanthomintha ilicifolia has
significant favorable habitat occurring along the eastern boundary of
the MSCP and Multiple Habitat Conservation Plan (MHCP) subregions.
Recent discoveries indicate that additional significant populations of
this species may occur in the vicinity of Alpine and Sycamore Canyon.
The Service has considered this information in listing this species as
threatened rather than endangered as proposed. Nevertheless, the
majority of historic populations of A. ilicifolia were in western San
Diego County, California, and nearly half have been extirpated. Data
within the Service's files indicate that much of the undeveloped
habitat within the range of this species is likely to be urbanized, or
to be in proximity to urbanization in the foreseeable future.
Although the flora of northwestern Baja California has received
less scrutiny than that of Alta California, several botanists (notably
Reid Moran formerly of the San Diego Natural History Museum) have made
extensive surveys in coastal areas between Tijuana and El Rosario,
Mexico. There are numerous collections of plants from Mexico in the
herbaria of the Rancho

[[Page 54943]]

Santa Ana Botanic Garden in Claremont, California, and the San Diego
Natural History Museum in San Diego, California. All localities cited
within the proposed rule are based on collection records. Although it
is possible that other populations of all three species exist in
coastal Baja California, all three species are restricted to specific
habitats or have very restricted ranges. Hemizonia conjugens is known
only from a single locality east of Tijuana (La Presa) and is not
expected to occur farther than 16 kilometers (km) (10 miles (mi)) south
of the U.S. border. This area has been subject to substantial urban and
agricultural impacts (Direccion de Planeacion del Desarrollo Urbano y
Ecologica and San Diego Association of Governments (SANDAG) 1996).
Acanthomintha ilicifolia and Monardella linoides ssp. viminea are more
broadly distributed in Baja California. The preferred habitat for these
species, however, is limited and found in isolated patches.
Issue 4: One commenter claimed that the Service was applying
unreliable data and selective anecdotal speculation regarding threats
to these plants in Baja California, Mexico.
Service Response: The threats to the flora of northwestern Baja
California are well-documented and extensively discussed in recent
publications (Bowler 1990, RECON 1991b, Oberbauer 1992). Habitat
between Tijuana and Ensenada, Mexico, and in the vicinity of San
Quintin, MX is being converted to urban, recreational and agricultural
development (Oberbauer 1992). Impacts of expanding cultivation and
urbanization are also evidenced through satellite imagery of the
vicinity of Tijuana and La Presa (Direccion de Planeacion del
Desarrollo Urbano y Ecologica and San Diego Association of Governments
(SANDAG) 1996). This area includes the only known population of H.
conjugens in Baja California, Mexico.
Monardella linoides ssp. viminea and Acanthomintha ilicifolia both
occur in the vicinity of San Quintin. Satellite imagery documents that
about 49,500 ha (124,000 ac) of coastal plain in this region had been
converted to cultivation and urbanization by 1974 (U.S. Fish and
Wildlife Service, unpubl. data). The San Quintin kangaroo rat
(Dipodomys gravipes), a coastal lowland-associated species endemic to
the Baja California, Mexico, from San Telmo to El Rosario, is nearly
extinct as a result of this change in land use (Best 1983). More recent
satellite imagery (Earth Satellite Corporation 1994) documented
approximately 5,450 ha (13,600 ac) of additional habitat conversion on
the coastal plain and adjacent foothills by January 1994.
Issue 5: One commenter stated that the Service failed to establish
minimum viable population size for Hemizonia conjugens, Acanthomintha
ilicifolia, and Monardella linoides ssp. viminea. Without an estimate
of the minimum viable population size and distribution, ``* * * the
public is unable to determine what the Service believes constitutes a
population size and distribution threatening or endangering the
continued existence of these species * * *''.
Service Response: A minimum viability population analysis may be
useful for developing a recovery plan for some species (Shaffer 1990),
but is not necessary to determine whether a species should be listed. A
minimum viability population analysis does not address existing and
foreseeable threats to species that are key factors in determining
whether a species should be listed under the Act (see ``Summary of
Factors Affecting the Species'' section of this rule).
Issue 6: One commenter stated that the Service did not correctly
analyze the degree of threat to Hemizonia conjugens, Acanthomintha
ilicifolia, and Monardella linoides ssp. viminea inferred from past and
projected population growth in San Diego County. Although the Service
has relied on SANDAG estimates that the number of occupied housing
units in San Diego County would increase 69 percent between 1990 and
2015, the commenter noted that the May 1995 draft EIR/EIS for the San
Diego MSCP predicted that the San Diego metropolitan area will increase
by only 18 percent between 1990 and 2005. The commenter stated that
population growth in residential and commercial development in San
Diego County has ``significantly slowed since 1990'' and suggested that
the earlier SANDAG figure significantly overstates the current best
estimates for growth.
Service Response: Population growth estimates by SANDAG represent
the best available population growth estimates for the region and are
used extensively by local County and municipal jurisdictions in local
and regional planning. Because the Service does recognize that growth
projections are dynamic, we have incorporated the most recently
available figures on population growth into this rule. The August 1996
final EIR/EIS for the MSCP estimates a population increase of 21
percent for the population of the City of San Diego from 1990 to 2005
(City of San Diego and U.S. Fish and Wildlife Service 1996a). The
projected growth for the same area from 1990 to 2015 is 42 percent. The
cited document also reveals that population growth is projected to
increase 50 percent in the San Diego region from 2.5 million people to
3.8 million people. Occupied housing units are estimated to increase 45
percent in San Diego County from 1990 to 2015. Although these numbers
are lower than the earlier SANDAG estimates, they clearly indicate that
the region will be subject to significant population growth, which is
likely to contribute to the further decline of the three plant species
and their habitats.
Issue 7: One commenter questioned the accuracy of the reference
(Oberbauer and Vanderweir 1991) cited by the Service for purposes of
documenting and analyzing the loss of historic native grasslands in the
San Diego Region.
Service Response: The Service has determined that Oberbauer and
Vanderweir (1991) based their conclusions on data gathered utilizing
acceptable scientific methods.
Issue 8: One commenter claimed that the listing proposal did not
present an adequate discussion and analysis, with the exception of the
California gnatcatcher, on the protections afforded Acanthomintha
ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea
from other federally listed species. The commenter specifically
requested that the Service analyze the protections afforded by the
listings of Arctostaphylos glandulosa ssp. crassifolia (Del Mar
manzanita), Baccharis vanessae (Encinitas baccharis), Chorizanthe
orcuttiana (Orcutt's spineflower), Corethrogyne filaginifolia var.
linifolia (Del Mar aster), Dudleya blochmaniae ssp. brevifolia (short-
leaved dudleya), Navarretia fossalis (spreading navarretia), Pogogyne
abramsii (San Diego mesa mint), P. nudiuscula (Otay mesa mint),
Riverside fairy shrimp (Streptocephalus wootoni), Harbison's Dunne
skipper (Euphyes vestris harbisoni), Thorne's hairstreak butterfly
(Mitoura thornei), arroyo toad (Bufo microscaphus californicus),
California red-legged frog (Rana aurora daytonii), least Bell's vireo
(Vireo bellii pusillus), Pacific pocket mouse (Perognathus longimembris
pacificus), and Stephens' kangaroo rat (Dipodomys stephensii).
Service Response: The proposal to list Corethrogyne filaginifolia
var. linifolia (Del Mar aster) and Dudleya blochmaniae ssp. brevifolia
(short-leaved dudleya) was withdrawn on October 7, 1996 (61 FR 52402).
These species confer no Federal protections on Acanthomintha
ilicifolia, Hemizonia conjugens, or Monardella linoides ssp. viminea.
Additionally, the ranges of the

[[Page 54944]]

two withdrawn species do not overlap those of the species listed in
this rule. Harbison's Dunne skipper (Euphyes vestris harbisoni) and
Thorne's hairstreak butterfly (Mitoura thornei) are not listed nor have
these species ever been proposed for Federal listing. Therefore, these
two butterfly species confer no protection on the plants listed in this
rule. Although the Stephens' kangaroo rat (Dipodomys stephensii) is
listed as an endangered species, the range of the Stephens' kangaroo
rat is not known to overlap with any of the four plant species listed
in this rule. None of the other 11 federally listed species mentioned
by the commenter are found in the same habitat as the 4 species
addressed in this rule; therefore, protections for those listed species
do not confer any direct protection to the four species being listed by
this rule. An analysis of potential protection indirectly conferred on
these plants from the other listed species has been expanded in Factor
D of the ``Summary of Factors Affecting the Species'' section of this
rule.
Issue 9: Two respondents claimed that the Service failed to analyze
the expected impact of a listing on the regional NCCP habitat
conservation programs, or expressed concern that the listings would
result in a negative impact on these programs. One commenter alleged
that the action of listing three of the plant species could preclude
approval of the MSCP and, therefore, result in jeopardy to the species'
continued existence.
Service Response: The Service actively supports multispecies
planning efforts to avoid or reduce the need for future listing actions
within designated planning areas. However, the Service is required to
determine whether a species is endangered or threatened based solely on
the applicability of the five factors listed under section 4(a)(1) of
the Act. Significant populations of three species (Acanthomintha
ilicifolia, Dudleya stolonifera, and Monardella linoides ssp. viminea)
listed in this rule are outside the geographical limits of approved or
nearly completed multispecies conservation plan areas (MSCP or Central/
Coastal NCCP), or are not under the jurisdiction of these plans.
Acanthomintha ilicifolia is considered adequately conserved within
jurisdictions with approved subarea plans in the MSCP subregion and,
therefore, no additional mitigation is required to protect the species
within these jurisdictions. About 55 percent of the United States
populations (and about 65 percent of the major populations), however,
are outside the MSCP subregion.
The distribution of Dudleya stolonifera lies entirely within the
Central/Coastal NCCP subregion of Orange County. The species is
considered a ``covered species'' (species that will be adequately
conserved by the plan's proposed preservation and management) under the
Central/Coastal NCCP with respect to planned activities carried out by
participating landowners because protection of the species is assured
under the plan on lands owned and managed by such landowners. However,
only one of four major populations of D. stolonifera within the
Central/Coastal NCCP is on land owned by a participating landowner. The
plan does not extend coverage or ensure protection of this species on
lands owned by nonparticipating landowners in the subregion.
The entire U.S. distributions of Hemizonia conjugens and Monardella
linoides ssp. viminea occur within the MSCP subregion. Nearly 80
percent of the populations of M. linoides ssp. viminea, however, are
found on Marine Corps Air Station, Miramar lands not under jurisdiction
of the MSCP, and, although H. conjugens is a covered species under the
MSCP, the potential impacts of projects that are not subject to the
jurisdiction of the MSCP (see Factor D of the ``Summary of Factors
Affecting the Species'' section of this rule) are very important to the
long-term survival of this species. The listing of H. conjugens and M.
linoides ssp. viminea will not adversely affect jurisdictions with
approved subarea plans under the MSCP because these species are
``covered'' under the MSCP, and therefore no additional mitigation is
required to protect the species in these jurisdictions. Thus, the
listing of Acanthomintha ilicifolia, Dudleya stolonifera, and
Monardella linoides ssp. viminea will not have a negative impact on the
MSCP and Central/Coastal NCCP because the Service has determined that
populations of these species covered by these plans will be adequately
protected by the participating jurisdictions and/or participating
landowners; no additional mitigation will be required of these
participants. The significant threats faced by species outside of the
geographical or regulatory jurisdictions of the approved plans warrant
the listing of these species.
Issue 10: One commenter stated the Service should not add Dudleya
stolonifera to the endangered species list because one of the threats
cited was competition from nonnative plant species. The commenter
stated that competition is a natural process, and therefore ``* * *
nature is doing its own eliminating.'' By attempting to protect the
species, the Service was only prolonging the inevitable.
Service Response: The Service is required to determine whether any
species is endangered or threatened based on the applicability of the
five factors listed under section 4(a)(1) of the Act, including ``* * *
other natural or manmade factors affecting their continued existence.''
Competition from nonnative plants often results from, and is
accelerated by, human activities such as disturbance of natural habitat
and fragmentation of natural habitat. The Service does not consider
competition from nonnative plants a natural process, and therefore such
competition constitutes a threat under the Act.
Issue 11: The Service must comply with Executive Order No. 12630
and conduct a takings analysis for each species before reaching any
final decisions.
Service Response: Executive Order 12630, Government Actions and
Interference with Constitutionally Protected Property Rights, requires
that a Takings Implications Assessment (TIA) be conducted in connection
with final rulemakings that may affect the value or use of private
property. The Attorney General has issued guidelines to the Department
of the Interior (Department) regarding TIAs. The Attorney General's
guidelines state that TIAs are to be prepared after, rather than
before, an agency makes a restricted discretionary decision. The Act
requires the Service to make listing determinations based solely upon
the best scientific and commercial data available. Economic
considerations may not be used in listing determinations. If the
Service determines that the final rule for listing any of these species
may affect the use or value of private property, a TIA will be prepared
for the rule(s).
Issue 12: One commenter supported the listing of Acanthomintha
ilicifolia and Hemizonia conjugens and suggested that the genetic
differences among populations of patchily distributed edaphic
specialists could affect preservation strategies and priorities.
Service Response: The Service agrees that genetic differences among
patchily distributed populations are a relevant concern in designing
conservation strategies. Determination of genetic differences and their
effects on conservation strategies and priorities will be addressed in
recovery plan development after the species are listed.

[[Page 54945]]

Peer Review

The Service routinely has solicited comments from parties
interested in, and knowledgeable of, species which have been proposed
for listing as threatened or endangered species. The July 1, 1994, Peer
Review Policy (59 FR 34270) established the formal requirement that a
minimum of three independent peer reviewers be solicited to review the
Service's listing decisions. During the August 9, 1995, to October 9,
1995, comment period, the Service solicited the expert opinions of
three biologists having recognized expertise in botany and/or
conservation biology to review the proposed rule. The Service received
comments from two of the three reviewers within the comment period.
Both concurred with the Service on factors relating to the taxonomy of
the species and biological and ecological information (E. Bauder in
litt. 1995, M. Dodero in litt. 1995).

Summary of Factors Affecting the Species

After a thorough review and consideration of all information
available, the Service has determined that Monardella linoides ssp.
viminea should be classified as an endangered species, and
Acanthomintha ilicifolia, Dudleya stolonifera, and Hemizonia conjugens
should be classified as threatened species. Procedures found in section
4 of the Act and regulations implementing the listing provisions of the
Act (50 CFR part 424) were followed. A species may be determined to be
endangered or threatened due to one or more of the five factors
described in section 4(a)(1). The threats and their application to
Acanthomintha ilicifolia A. Gray, (San Diego thornmint), Dudleya
stolonifera Moran (Laguna Beach liveforever), Hemizonia conjugens D.D.
Keck (Otay tarplant), and Monardella linoides A. Gray ssp. viminea
(Greene) Abrams (willowy monardella) are as follows and summarized in
Table 1.

Table 1.--Summary of Threats
--------------------------------------------------------------------------------------------------------------------------------------------------------
Off-road
Trampling Alien plant vehicles Urbanization Mining Alteration Overutilization
grazing species (ORV) of hydrology
--------------------------------------------------------------------------------------------------------------------------------------------------------
Acanthomintha ilicifolia........................... X X X X X
Dudleya stolonifera................................ X X X X
Hemizonia conjugens................................ X X X X
Monardella linoides ssp. viminea................... X X X X X X X
--------------------------------------------------------------------------------------------------------------------------------------------------------

A. The Present or Threatened Destruction, Modification, or Curtailment
of Their Habitat or Range

The rapid urbanization of coastal southern California imminently
threatens the four species in this final determination. Many of the
same factors threatening Acanthomintha ilicifolia, Hemizonia conjugens,
and Monardella linoides ssp. viminea in the United States (urban and
agricultural development) also threaten these species in Baja
California, Mexico.
Of the 52 historically known populations of Acanthomintha
ilicifolia in the United States, 20 have been extirpated by residential
or commercial developments. In addition, ORV activity and trampling by
cattle and humans have contributed to the decline of this species. For
example, one population (Sabre Springs) in Poway has declined by about
60 percent as a result of these factors (Bauder, McMillan, and Kemp
1994, CNDDB 1997). Five populations are currently directly threatened
by development (OGDEN 1992b, OGDEN 1992d, Enviromine 1994, CNDDB 1997).
Although existing and proposed development largely avoids direct
impacts, in many cases the development footprint is immediately
adjacent or in proximity to A. ilicifolia populations (Michael Brandman
Associates 1990, RECON 1991a, OGDEN 1992b, OGDEN 1992c, OGDEN 1992d,
OGDEN 1995, Bauder, McMillan, and Kemp 1994, Sweetwater Environmental
Biologists 1994, T. & B. Planning Consultants 1994, Shapouri and
Associates 1995, City of San Diego 1995a, City of San Diego and U.S.
Fish and Wildlife Service 1996a, 1996b, 1997; U.S. Fish and Wildlife
Service, in litt. 1996). Consequently, habitat is degraded and risks
from nonnative plant replacement, trampling, fragmentation, and
isolation increase (See Factor E of the ``Summary of Factors Affecting
the Species'' section of this rule). Sixty percent of all individuals
are, or will be situated in proximity to development after
implementation of currently approved or proposed development (Roberts
1997a).
Four occurrences of Acanthomintha ilicifolia are on lands managed
by the City of San Diego (Mission Trails Park, Los Penasquitos Park,
and Sycamore Canyon Park) (Bauder, McMillan, and Kemp 1994; CNDDB
1997). Each of these four occurrences receives some level of protection
by the City of San Diego, because A. ilicifolia is a ``covered
species'' under the MSCP.
One population of Acanthomintha ilicifolia is on land managed by
The Nature Conservancy (McGinty Mountain) and four populations occur on
the Cleveland National Forest (Viejas Mountain and Poser Mountain).
These populations, however, are vulnerable to habitat degradation
resulting from illegal dumping, trampling, erosion and ORV activity
(Bauder, McMillan, and Kemp 1994). Roads adjacent to populations in the
vicinity of McGinty Mountain and Penasquitos Canyon provide easy access
for foot traffic and ORV use.
The status of Acanthomintha ilicifolia and its habitat in
northwestern Baja California, Mexico, is not well-documented. The
species is known to occur as far south as Las Escobas near San Quintin,
Mexico, but its distribution in Mexico is spotty (Reid Moran, pers.
comm. 1992). The San Diego Natural History Museum has herbarium
specimens of A. ilicifolia from nine localities in Baja California,
Mexico; however, little information is available on numbers of
individuals or specific threats. One population near Tecate, Mexico is
threatened by an adjacent clay mining operation (Tom Oberbauer, Senior
Planner, San Diego County, pers. comm. 1992). This northern region
represents one of the most severely impacted areas in Baja California,
and many of the same factors (urban and agricultural development) that
have affected the status of this species in the United States also
threaten the species in Mexico.
Three of the 25 known historic locations of Hemizonia conjugens are
considered to be extirpated (Hogan 1990, S. Morey in litt. 1994, CNDDB
1997). In addition, about 70 percent of the potentially suitable
habitat for this species has been cleared for agriculture and
urbanization (City of San Diego and U.S. Fish and Wildlife Service
1997). About 40 percent of all remaining individuals will be eliminated
by currently approved and proposed

[[Page 54946]]

development projects (Morey, in litt. 1994; OGDEN 1992a, OGDEN 1992c,
San Diego Gas and Electric 1995, Tetra Tech 1996, CNDDB 1997). These
impacts have been considered by the Service through development of the
MSCP. Of the remaining populations after implementation of these
various developments, about 90 percent will be situated adjacent to, or
within the immediate vicinity of, urban development and recreation
areas (Roberts 1997b). These plants will be threatened by the secondary
effects of encroaching development (e.g., nonnative plant species
replacement, isolation, and fragmentation). Management provided through
the MSCP and on San Diego National Wildlife Refuge lands, however, will
help alleviate these effects for projects subject to the MSCP.
The four largest populations (Horseshoe Bend, Rice Canyon, Dennery
Canyon, and Proctor Valley) of Hemizonia conjugens support 90 percent
of all individuals. At Horseshoe Bend, the largest population (about 65
percent of all individuals) will be impacted by a residential-
commercial development project (Rancho San Miguel), utilities, and
State Route 125 (OGDEN 1992a, San Diego Gas and Electric 1995, Tetra
Tech 1996). These impacts will result in loss of about 60 percent of
the individuals and most of the occupied habitat in the Rancho San
Miguel complex. The remaining portion of the Horseshoe Bend population,
which constitutes about 35 percent of the known individuals of the
species, will be conserved as part of the MSCP. Direct impacts to the
Rice Canyon population (about 15 percent of all individuals) have been
for the most part avoided. The remaining population, however, is
isolated and in proximity to urban development. It is likely that this
population will decline significantly in the foreseeable future (Morey,
in litt. 1994; CNDDB 1997, Roberts 1997b). A third major population is
located in the vicinity of Dennery Canyon. The majority of this
population will be conserved in open space (City of San Diego 1995b,
City of San Diego and U.S. Fish and Wildlife Service 1996b). A
significant portion of the potential habitat within the population,
however, was impacted by grading in the spring of 1997 for a
residential-commercial project (Cal Terraces) (U.S. Fish and Wildlife
Service, in litt. 1997). This project resulted in preservation of 1.2
ha (3 ac) out of 7 ha (17.5 ac) of suitable habitat on the project
site. The fourth largest population (Proctor Valley) is partially
within an approved development (OGDEN 1992c, City of San Diego and U.S.
Fish and Wildlife Service 1996b, City of San Diego and U.S. Fish and
Wildlife Service 1997).
Several populations of Hemizonia conjugens have also been affected
by ORV activity on Otay Mesa. For example, about 12 ha (30 ac) of
suitable and occupied habitat at Dennery Canyon have been severely
impacted by ORV activities (B. McMillan, U.S. Fish and Wildlife
Service, pers. comm. 1997). Implementation of the MSCP requires that
these effects be alleviated.
Several other major populations of Hemizonia conjugens will be
largely conserved (Wolf Canyon, Otay Valley, Old Salt Creek, Jamacha
Hills); however, these populations will be adjacent to, or in proximity
to recreation or future development (OGDEN 1992c, City of San Diego and
U.S. Fish and Wildlife Service 1996b, Roberts 1997b). In addition,
populations that are conserved through the development process may be
affected by Federal and State activities not subject to the MSCP,
including State transportation projects (California Department of
Transportation), border fencing, ORV activity, and new facilities
(Immigration and Naturalization Service), and airport expansion
(Federal Aviation Administration). For example, one alternative for
State Route 125 may affect as much as 23 ha (57 ac) of H. conjugens
habitat. State Route 905 passes through suitable habitat and expansion
of this highway will likely reduce the extent of this habitat. At least
five populations of H. conjugens on Otay Mesa are at risk from United
States Immigration and Naturalization Service Border Patrol (Border
Patrol) activities due to the proximity of the U.S.-Mexican border. ORV
activity relating to Border Patrol activities has impacted and
potentially significantly reduced one major population (Spring Canyon)
(B. McMillan, pers. comm. 1997). These activities also impact
considerable suitable but currently unoccupied habitat on private land
on Otay Mesa. Another population may be impacted by a proposed Border
Patrol field station on Otay Mesa. To some degree those populations
covered under the MSCP will still be subject to the effects of habitat
fragmentation, ORV activity, and disturbance described previously in
this rule.
Monardella linoides ssp. viminea was previously known from 27
occurrences in the United States, 7 of which have been extirpated by
transportation projects and industrial development. Of the 5 remaining
occurrences with at least 100 individuals, none are currently
protected. The remaining populations of M. linoides ssp. viminea are
threatened by urban development, sand and gravel mining, ORV activity,
trampling, trash dumping, and erosion. One of the largest populations
(2,000 to 3,000 individuals) is located partially on private property,
partially on Federal land managed by the Navy, and partially on city-
owned property (Sycamore Canyon City Park). This population has been
damaged by ORVs and fire, factors that also threaten the other
remaining populations of this species. Two populations on Marine Corps
Air Station, Miramar land have been partially destroyed by road
construction. The other two large populations of M. linoides ssp.
viminea are on private property. One of these (approximately 340
individuals) is threatened by sand and gravel mining. The other
population, with approximately 200 individuals, is on property proposed
for development. Habitat for this species in Los Penasquitos City
Regional Park is degraded by stream erosion, trash dumping, and the
invasion of nonnative species. Another population in San Clemente Park,
owned by the City of San Diego, was reported to have approximately 60
plants in the early 1980's, but contained fewer than 35 plants in 1987
(CNDDB 1997).
Approximately 8,000 to 10,000 individuals of Dudleya stolonifera
are spread among 6 locations. Urban development and associated edge
effects (see ``Discussion of the Four Species'' and Factor E of the
``Summary of Factors Affecting the Species'' sections of this rule)
threaten several populations of D. stolonifera. Although the entire
range of this species is within the boundaries of the Central/Coastal
NCCP, three of the major populations representing 70 percent of the
species are found on private lands managed by nonparticipating
landowners. The population at the type locality (site of collection of
the specimen used to describe the species) for D. stolonifera is
directly adjacent to residential development in Aliso Canyon (Orange
County) and is declining due to increased shading and competition from
nonnative plants (F. Roberts, U.S. Fish and Wildlife Service, pers.
obs.). This population is also threatened by fuel modification (Marsh
1992), which includes modifying existing habitat to reduce the
immediate risk of fire (e.g., thinning vegetation, fire breaks,
disking, and mowing).

[[Page 54947]]

B. Overutilization for Commercial, Recreational, Scientific, or
Educational Purposes

All four species addressed in this rule may be threatened with
vandalism and/or collection. Simply listing a plant species can
precipitate commercial or scientific interest, both legal and illegal,
which can threaten the species through unauthorized and uncontrolled
collection for both commercial and scientific purposes. The listing of
species as endangered or threatened publicizes their rarity and may
make them more susceptible to collection by researchers or curiosity
seekers (Mariah Steenson pers. comm. 1997, M. Bosch, U.S. Forest
Service in litt. 1997). Plants are particularly vulnerable to
vandalism, and rare or listed plants may be viewed as targets by
vandals who view their presence as a threat to future land use. Dudleya
stolonifera is known to be in cultivation, and is threatened by
overcollection. All species of Dudleya are vulnerable to collection and
D. stolonifera is listed as a CITES Appendix I species (Ayensu and
DeFilipps 1978). Field-collected specimens of D. stolonifera have been
found in southern California nurseries and are likely to be harvested
for private collections (Kei Nakai, horticulturalist, in litt. 1978,
and pers. comm. 1992). A Smithsonian report on endangered and
threatened plants in the United States considers all species of Dudleya
vulnerable to collection (Ayensu and DeFilipps 1978). Monardella
linoides ssp. viminea is also known to be in cultivation, and the
listing of this species could result in increased interest and possible
illegal collection. Collection has not been documented for the other
species in this rule.

C. Disease or Predation

Herbivory may threaten some populations of the plants contained in
this rule. For example, failure of the Acanthomintha ilicifolia
transplants at Quail Gardens was attributed primarily to rabbit
predation (Don Miller, Quail Gardens, pers. comm. 1992). One population
of Dudleya stolonifera appears to have increased in size significantly
after cattle grazing was eliminated (U.S. Fish and Wildlife Service,
unpubl. data, 1997). Threats from predation are not known to be a
factor for Hemizonia conjugens and Monardella linoides ssp. viminea.

D. The Inadequacy of Existing Regulatory Mechanisms

Existing regulatory mechanisms that could provide some protection
for these species include--(1) the Act in cases where these species
occur in habitat occupied by a listed species; (2) conservation
provisions under the Federal Clean Water Act; (3) listing under the
California Endangered Species Act (CESA); (4) the California
Environmental Quality Act (CEQA); (5) implementation of conservation
plans pursuant to the California NCCP program; (6) land acquisition and
management by Federal, State, or local agencies or by private groups
and organizations; (7) local laws and regulations; and (8) enforcement
of Mexican laws.

Federal Endangered Species Act

The Act may already afford protection to sensitive species if they
coexist with species already listed as threatened or endangered under
the Act. A number of federally listed species occur within the range of
the four plants discussed in this final rule. Protection afforded by
these species, however, is minimal due to lack of overlapping habitat
requirements.
The coastal California gnatcatcher is listed as a threatened
species under the Act, and it occurs in some of the areas occupied by
these four plant species. Significant populations of these plants,
however, occur in riparian scrub, chaparral, or grassland areas and,
therefore, do not benefit from conservation required for the California
gnatcatcher. For example, the open space on one development was
designed to conserve the majority of the California gnatcatchers within
the project boundary; however, only 40 percent of the Hemizonia
conjugens on the project site is conserved as a result of this design
(Tetra Tech 1996, City of San Diego and U.S. Fish and Wildlife Service
1996b). In another example, the Service consulted with the U.S. Army
Corps of Engineers (Corps) on the California gnatcatcher in regard to a
development proposal in the City of Carlsbad. The consultation included
a review of impacts to Acanthomintha ilicifolia. However, direct
benefits to the species were minimal (U.S. Fish and Wildlife Service,
in litt. February 22, 1996).
Several other listed species occur within the vicinity of the
species listed here but are largely restricted to vernal pools
(Pogogyne abramsii (San Diego mesa mint), Pogogyne nudiuscula (Otay
mesa mint), Riverside fairy shrimp (Streptocephalus wootoni), San Diego
fairy shrimp (Branchinecta sandiegoensis) and San Diego button-celery
(Eryngium aristulatum var. parishii)); riparian habitats (arroyo toad
(Bufo microscaphus californicus), California red-legged frog (Rana
aurora daytonii), and least Bell's vireo (Vireo bellii pusillus));
sandy coastal terraces (Pacific pocket mouse (Perognathus longimembris
pacificus)); or southern maritime chaparral (Arctostaphylos glandulosa
ssp. crassifolia, Baccharis vanessae, Chorizanthe orcuttiana, and
Verbesina dissita (big-leaved crown beard)). These habitats are
generally not occupied by any of the species in this final rule. Only
one out of six populations of Dudleya stolonifera occurs with Verbesina
dissita.

Conservation Agreements

Conservation agreements with other Federal agencies may reduce the
decline of some species so that listing as threatened or endangered is
no longer necessary. Conservation agreements with other Federal
agencies, however, would not appreciably benefit most of the species in
this rule. One of the four species, Dudleya stolonifera, is not known
to occur on Federal lands. Although Hemizonia conjugens is not
currently known from Federal lands, there may be potential habitat for
this species on Federal land on Otay Mesa. Several large populations of
Acanthomintha ilicifolia occur on Federal lands; however, these
populations account for only a small number of the existing populations
(5 of 32 populations). While a conservation agreement with the Forest
Service could provide for the long-term conservation of these few
populations, it is unlikely that such an agreement would preclude the
overall decline of the species.
About 20 percent of Monardella linoides ssp. viminea populations
occur on private land. The distribution of this species, characterized
by small populations, is extremely restricted. The majority of the
individual plants in the United States occur on Federal lands. These
lands are presently under control of the U.S. Marine Corps. At this
time there are no conservation agreements for this species with the
U.S. Marine Corps. The Service is currently reviewing the Draft
Integrated Natural Resource Management Plan for the Marine Corps Air
Station Miramar. No significant protection measures are outlined in the
draft beyond periodic monitoring. It is not clear what, if any,
specific protection measures will be adopted for this species in the
final version of the plan.

Conservation Provisions Under the Clean Water Act

Monardella linoides ssp. viminea could potentially be affected by
projects requiring a permit from the Corps under section 404 of the
Clean Water Act. However, there are no specific provisions that
adequately conserve rare

[[Page 54948]]

or candidate plant species. Although the other species listed in this
rule are not within habitat subject to Corps jurisdiction, inclusion of
these species in projects reviewed by the Corps may result in
consultation with the Service through interrelated and interdependent
effects. But this seldom results in significant conservation benefits
to upland species, such as Acanthomintha ilicifolia (U.S. Fish and
Wildlife Service, in litt. February 22, 1996).

State Laws and Regulation

Under provisions of the Native Plant Protection Act (chapter 10
section 1900 et seq. of the California Fish and Game Code) and CESA
(chapter 1.5 section 2050 et seq. of the Fish and Game Code), the
California Fish and Game Commission listed Acanthomintha ilicifolia
(1982), Hemizonia conjugens (1979), and Monardella linoides ssp.
viminea (1979) as endangered (CDFG 1996). Dudleya stolonifera was
listed as threatened by CDFG in 1987. Although both statutes prohibit
the ``take'' of State-listed plants (chapter 10 section 1908 and
chapter 1.5 section 2080), populations of three of the four species
have continued to decline. For example, one project in San Diego,
California, resulted in the elimination of a major population of H.
conjugens (CDFG 1994, CNDDB 1997) subsequent to the State listing of
the species. Although conditions of the State consultation required
that 5 ha (12 ac) of H. conjugens habitat be acquired to mitigate the
loss of the population, this has not occurred.
California Senate Bill 879, passed in 1997 and effective January 1,
1998, requires individuals and entities to obtain 2081(b) incidental
take permits to take listed species; however, the draft of proposed
regulations to implement Senate Bill 879 would except the prohibition
of take of listed plant species from major categories of activities,
including take incidental to agricultural operations, approved timber
harvest operations, mining assessment work, public works projects, and
removal or destruction of plants from building sites on private lands.
The extent to which the amended State Statute will afford protection to
State-listed plant species is uncertain at this time.
Acanthomintha ilicifolia has benefitted from State listing. Since
the species was listed in 1982, direct impacts to the species from
development projects have been reduced. The configuration of remaining
populations, however, is not conducive to long-term conservation; in
many cases the development footprint is immediately adjacent or in
proximity to A. ilicifolia populations. Consequently, habitat is
degraded and risks from nonnative plant replacement, trampling,
fragmentation, and isolation increase (See Factor A of the ``Summary of
Factors Affecting the Species'' section of this rule).
The majority of the known populations of Acanthomintha ilicifolia,
Dudleya stolonifera, and Hemizonia conjugens occur on privately-owned
land. Actions on private lands that may significantly affect biological
resources, including the plants listed in this rule, require review
under CEQA. The CEQA requires that significant biological impacts be
addressed. Local lead agencies empowered to uphold and enforce the CEQA
have made determinations that have affected, or will adversely affect,
these species and their habitats.
The CEQA requires that a project proponent publicly disclose the
potential environmental impacts of proposed projects. The public agency
with the primary authority or jurisdiction over the project is
designated as the lead agency and is responsible for conducting review
of the project and consulting with other agencies concerned with
resources affected by the project. Required biological surveys are
sometimes inadequate and mitigation measures used to condition project
approvals are sometimes experimental and do not always adequately
guarantee protection of sustainable populations of the species
considered in this rule. Section 15065 of the CEQA guidelines requires
a finding of significance if a project has the potential to ``reduce
the number or restrict the range of a rare or endangered plant or
animal.'' CEQA decisions are also subject to overriding social and
economic considerations, which allows the CEQA lead agency to approve a
project with significant adverse effects on a listed plant species
where the agency concludes that overriding considerations justify
approval of the project.
As a case in point, a CEQA document reporting biological surveys
conducted on a large parcel east of Chula Vista indicated the
approximate location of Hemizonia conjugens within the project site,
but included no data on relative population size (OGDEN 1992b).
Regarding a separate project near the Sweetwater Reservoir, the CEQA
document disclosed that proposed development associated with a project
would result in significant declines to the largest known population of
H. conjugens and result in preservation of less than 30 percent of the
individuals within the project area (OGDEN 1992a, Tetra Tech, Inc.
1996). Later coordination with the State and Service increased
preservation within the proposed project. In another example, a project
on west Otay Mesa was proposed that effectively would have eliminated
the majority of H. conjugens habitat within the project area (City of
San Diego 1993). Nonetheless, statements of overriding considerations
were developed, and these projects were approved.
Transplantation and relocation projects are frequently used to
compensate for the loss of rare plant species under CEQA. Hall (1987)
documents several attempts at transplanting Acanthomintha ilicifolia,
Hemizonia conjugens and Monardella linoides ssp. viminea. In one
transplantation project for A. ilicifolia, maintenance and monitoring
was scheduled for a period of 5 years. Subsequently, all records of the
project were lost and the new property owner claimed no responsibility
for the project. This site was destroyed by trash dumping and ORV use
(Hall 1987). One year after 45 individuals of M. linoides ssp. viminea
were transplanted by the California Department of Transportation, only
four had survived (Hall 1987, Kreager 1988). Of the 53 transplantation,
relocation or reintroduction projects reviewed, only 15 percent were
considered to be fully successful. None of these successful projects
included A. ilicifolia, H. conjugens, or M. linoides ssp. viminea.
Transplantation has not yet been demonstrated to provide for the long-
term viability of any of the four species listed in this rule.

Regional Planning Efforts

In 1991, the State of California established the NCCP program to
address conservation needs of natural ecosystems throughout the State.
The focus of the current planning program is the coastal sage scrub
community in southern California, although other vegetation communities
are being addressed in an ecosystem approach. Acanthomintha ilicifolia,
Dudleya stolonifera, Hemizonia conjugens, and Monardella linoides ssp.
viminea are currently covered under the MSCP and the Central/Coastal
Subregional NCCP/Habitat Conservation Plan (Central/Coastal NCCP) of
Orange County, California, and are being considered for inclusion as
covered species under the MHCP.
The Central/Coastal NCCP of Orange County was approved in July of
1996. Only one of the four species (Dudleya stolonifera) occurs within
the Central/

[[Page 54949]]

Coastal NCCP. The entire range of this species lies within this
subregion, and it is considered a ``covered species,'' but only on
lands owned or controlled by participating landowners. ``Covered
species'' are those species that will be adequately conserved by a
plan's proposed preservation and management to provide long-term
preservation within a Habitat Conservation Planning Area or NCCP
subregion. Three of the four major populations of Dudleya stolonifera,
including about 70 percent of all individuals and one minor population,
are situated on lands managed by nonparticipating landowners within the
Central/Coastal NCCP and, therefore, are not under the jurisdiction of
the plan.
Since the publication of the proposed rule, the MSCP regional
planning effort in southwestern San Diego County, has been finalized
and submitted to the Service as part of several applications for
section 10(a)(1)(B) incidental take permits for 85 species, including
Acanthomintha ilicifolia, Hemizonia conjugens, and Monardella linoides
ssp. viminea. The Service and the City of San Diego have jointly
prepared a Recirculated Environmental Impact Statement, Issuance of
Take Authorizations for Threatened and Endangered Species due to urban
Growth within the (MSCP) planning area. This document, released on
August 30, 1996, and finalized in December 1996, assesses the effects
of land-use decisions that will be made by local jurisdictions to
implement the plan and the effects of issuing the incidental take
permit for the 85 species. A permit was issued to the City of San Diego
in July, 1997, and to the County of San Diego in March 1998. A decision
on permit issuance is expected for Chula Vista within the next year.
The MSCP sets aside preservation areas and provides for monitoring and
management for the 85 covered species addressed in the permit
application, including Acanthomintha ilicifolia, Hemizonia conjugens,
and Monardella linoides ssp. viminea.
Four of the 11 major populations (3,000 plants or more) of
Acanthomintha ilicifolia within the United States occur within the MSCP
subregion (Roberts 1997a). The Service believes that three of these
four populations will be conserved by the MSCP. This species is also
included on the list of narrow endemics under the MSCP, which requires
jurisdictions to specify and implement measures in their subarea plan
to avoid or minimize impacts to all populations (including 3 additional
major populations). Significant populations of A. ilicifolia, however,
are located outside the MSCP subregion, including four major
populations that occur on lands managed by the Forest Service, and one
additional major population that occurs east of the MSCP subregion. The
MHCP planning area contains a single major population of A. ilicifolia.
The MHCP, which will include the Carlsbad Habitat Management Plan (HMP)
program, is still in the early developmental phase, and thus it is
uncertain if and what level of protection will be provided for A.
ilicifolia.
All of the United States populations of Hemizonia conjugens occur
within the MSCP subregion. Nine of the 12 major populations, supporting
about 35 percent of the individuals, will be adequately conserved by
the MSCP. This species is on the MSCP list of narrow endemics, which
requires jurisdictions to specify and implement measures in their
subarea plan to avoid or minimize impacts. The MSCP also requires
management of this species to address edge effects.
However, several other large populations, comprising about 80
percent of individuals, occur within the Chula Vista Subarea Planning
Area of the MSCP. The Chula Vista Subarea Plan has not been submitted
to the Service for approval. In addition, Hemizonia conjugens likely
will continue to be subject to significant impacts from projects and
activities not subject to the MSCP (e.g., Border Patrol activities,
State and Federal transportation projects (e.g., State Route 125 and
Interstate 905), Federal Aviation Administration projects, Department
of Defense activities, utility lines, and pipelines).
Although about 95 percent of the United States range of Monardella
linoides ssp. viminea occurs within the MSCP subregion, only about 20
percent occurs outside Marine Corps Air Station, Miramar. Therefore,
the majority of the populations are not subject to MSCP jurisdiction.
At least one additional small population occurs within the Poway
Habitat Conservation Plan area. This species likely will continue to be
subject to significant impacts from activities not subject to the MSCP
(e.g., sand and gravel mining, State and Federal transportation
projects, Department of Defense activities, pipelines and utility
lines).

Land Acquisition and Management

Land acquisition and management by State or local agencies or by
private groups and organizations have contributed to the protection of
some localities containing the species included in this rule. These
efforts, as discussed below, are inadequate, however, to assure the
long-term survival of these four species. Nine of the 32 populations of
Acanthomintha ilicifolia are on public lands (Penasquitos Park and
Mission Trails Regional Park) or on lands managed by the Forest
Service, including six major populations; however, these populations
account for only about 30 percent of the known individual plants.
Populations on Federal land (Cleveland National Forest) have been
negatively affected by grazing, and illegal dumping (Winter 1991,
Bauder, McMillan, and Kemp 1994). Two of the six populations, including
one major population, of Dudleya stolonifera are within preserves
(Laguna Laurel Ecological Preserve and Irvine Coast Wilderness Regional
Park). The three other major populations of this species are on private
land. Several small populations of Monardella linoides ssp. viminea
occur on Penasquitos Preserve; however, the majority of plants in this
species occurs outside preserve lands. Nine major populations of
Hemizonia conjugens will be conserved under the MSCP.
The four plant species also occur in ``dedicated'' open space
frequently in association with development projects. These areas are
often specifically set aside for conservation as required by local and
County project approvals or the CEQA, and are managed by private
organizations, individuals, corporations, or local jurisdictions. Open
space dedications, however, do not necessarily incorporate the
principles of conservation biology. As a result, many are poorly
configured or too small to ensure long-term preservation of these
species (see Factor E of the ``Summary of Factors Affecting the
Species'' section of this rule). County open space designations within
General Development Plans are subject to amendments and, therefore,
cannot be considered as permanent conservation.

Local Laws, Regulations, and Ordinances

The four species in this rule have been identified as sensitive
under various local laws, regulations, and ordinances. However,
development projects continue to be approved and implemented with
designs that do not preserve populations or habitat for the species
listed in this rule, or that contribute to further isolation and
fragmentation of populations.

Mexican Laws

The ranges of Acanthomintha ilicifolia, Hemizonia conjugens, and
Monardella linoides ssp. viminea extend

[[Page 54950]]

into northern Baja California, Mexico. Mexico has laws that could
provide protection to rare plants; however, enforcement of these laws
is lacking (Joe Quiroz, The Nature Conservancy, Pers. Comm. 1991).
On July 29, 1983, Dudleya stolonifera was included in Appendix I of
the Convention on International Trade in Endangered Species of Wild
Fauna and Flora (CITES). CITES is a treaty established to prevent
international trade that may be detrimental to the survival of plants
and animals. Generally, both import and export permits are required
from the importing and exporting countries before an Appendix I species
may be shipped, and Appendix I species may not be exported for
primarily commercial purposes. But plants that are certified by the
Service as artificially propagated in accordance with CITES conference
resolutions may be exported for commercial purposes with only CITES
export documents from the exporting country. CITES permits may not be
issued if the export will be detrimental to the survival of the species
or if the specimens were not legally acquired. CITES does not regulate
take or domestic trade.

E. Other Natural or Manmade Factors Affecting Their Continued Existence

Dudleya stolonifera and Monardella linoides ssp. viminea are
threatened with extinction by virtue of their small population sizes.
Chance events, such as floods, fires, or drought, can substantially
reduce or eliminate small populations and increase the likelihood of
extinction. For example, in October 1993, a wildfire burned about
10,400 ha (26,000 ac) of the San Joaquin Hills in Orange County. Three
of the six populations of D. stolonifera were within the burned area.
The two smaller populations were significantly affected by the fire and
potentially eliminated.
In addition, small populations are threatened by inbreeding
depression. Small populations can have significantly lower germination
rates than larger populations of the same species due to high levels of
homozygosity (Menges 1990). Furthermore, Acanthomintha ilicifolia and
Hemizonia conjugens are annuals that undergo large population
fluctuations from year to year. Annuals may not have a persistent seed
bank or may be unable to recolonize areas of suitable habitat due to
dispersal barriers such as intervening development. These populations
are particularly vulnerable to local extirpations.
The San Diego Water Authority periodically discharges as much as 3
million gallons of water into dry water courses that support Monardella
linoides ssp. viminea on Marine Corps Air Station, Miramar lands (Susan
Wynn, U.S. Fish and Wildlife Service, pers. comm. 1997). Water
discharge outside the rainy season would affect this species by
disrupting dispersal and by possibly eliminating mature plants.
Although recent coordination between the Water Authority and the Navy
has reduced the likelihood of these events, the threat remains.
Nonnative grass and forb species have invaded many of southern
California's plant communities. Their presence and abundance is
generally an indirect result of habitat disturbance by development,
mining, grazing, disking, and alteration of hydrology. The invasion of
both native and nonnative wetland plant species as a result of altered
drainage patterns threatens habitat for Monardella linoides ssp.
viminea (Scheid 1985).
The effects of competition with nonnative species is most
problematic immediately adjacent to urban areas and in habitat isolated
or fragmented by development (Alberts et al., 1991). Acanthomintha
ilicifolia is particularly sensitive to nonnative competition, and this
factor has contributed to significant decline in many populations of
this species (Bauder, McMillan, and Kemp 1994). Although more tolerant
of nonnative competition, Hemizonia conjugens populations are also
depressed by presence of dense populations of nonnative species (S.
Morey, in litt. 1994, CNDDB 1997). Grazing negatively affects A.
ilicifolia by increasing erosion, contributing to soil compaction, and
introducing a variety of nonnative grasses that exclude A. ilicifolia
from areas of otherwise suitable habitat (Winter 1991). Several
populations of Dudleya stolonifera are threatened by trampling and the
invasion of nonnative plant species (Marsh 1992).
The Service has carefully assessed the best scientific and
commercial information available regarding the past, present, and
future threats faced by these four species in determining to make this
rule final. Much of the remaining habitat for these species is
degraded. Based on this evaluation, the Service determines Monardella
linoides ssp. viminea to be in danger of extinction throughout all or a
significant portion of its range. This species persists in small,
isolated populations surrounded by urban or agricultural development.
This species is in danger of extinction throughout all or a portion of
its range due to habitat alteration and destruction resulting from
urban, recreational, and agricultural development; fuel modification;
trampling from recreational activities; inadequacy of regulatory
mechanisms; and competition from exotic plant species. Additionally,
although populations of this species occur within the MSCP subregion of
San Diego County, California, the majority of M. linoides ssp. viminea
populations occur on Marine Corps Air Station, Miramar lands that are
not subject to the MSCP.
For reasons discussed below, the Service finds that Dudleya
stolonifera, Hemizonia conjugens, and Acanthomintha ilicifolia are
likely to become endangered within the foreseeable future throughout
all or a significant portion of their ranges. Dudleya stolonifera and
H. conjugens for the most part persist as small, isolated populations
surrounded by urban or agricultural development.
Dudleya stolonifera is at risk as a result of urban proximity,
recreational activities, potential overcollection, and exotic
competition. Because of the limited number and area of the populations,
D. stolonifera is also at risk from fire and fire management related
activities. Although the entire range of D. stolonifera is within the
Central/Coastal NCCP subregion, most of the populations are not within
the preserve area. Preserve design, however, will reduce the likelihood
that significant habitat altering projects will be proposed that
substantially impact these populations. The species also is situated in
rugged terrain which offers some protection from urbanization.
The range of Hemizonia conjugens is restricted to a single planning
subregion (MSCP) in the United States. Although the species continues
to be threatened by approved and proposed urban development, ORV, and
trampling, about 65 percent of the major populations will be preserved
through the MSCP. The Service has determined that the protection
afforded from MSCP preservation has reduced the likelihood of
extinction of this species in the foreseeable future. However, the
species is significantly threatened by activities that are not subject
to MSCP jurisdiction (e.g., State Route 125, Immigration and
Naturalization Service (INS) activities). Therefore, the Service has
determined that threatened is the appropriate designation for this
species.
Acanthomintha ilicifolia populations are threatened by habitat
degradation and impacts from trampling, ORV activity, nonnative plants,
fragmentation, and isolation either directly or indirectly due to the
proximity to development of protected areas. Although the number of
populations of A. ilicifolia has declined,

[[Page 54951]]

about 65 percent of the remaining major populations occur within the
MSCP subregion, and six of these populations will be conserved by the
MSCP. An additional major population may be protected by the MHCP, and
four major populations are on lands managed by the Forest Service.
Therefore, the Service has determined that threatened is the
appropriate designation for this species.

Critical Habitat

Critical habitat is defined in section 3 of the Act as 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 essential to the conservation of the
species and that 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 determination that such
areas are essential for the conservation of the species.
``Conservation'' means the use of all methods and procedures needed to
bring the species to the point at which listing under the Act is no
longer necessary.
Section 4(a)(3) of the Act, as amended, and the Service's
implementing regulations (50 CFR 424.12) require that, to the maximum
extent prudent and determinable, the Secretary designate critical
habitat at the time a species is listed as endangered or threatened.
Service regulations (50 CFR 424.12(a)(1)) state that designation of
critical habitat is not prudent when (1) the species is threatened by
taking or other human activity, and identification of critical habitat
can be expected to increase the degree of threat to the species, and/or
(2) such designation of critical habitat would not be beneficial to the
species.
Section 7(a)(2) of the Act requires Federal agencies to consult
with the Service to ensure that any action authorized, funded, or
carried out by such agency, does not jeopardize the continued existence
of a federally listed species or does not destroy or adversely modify
designated critical habitat. The requirement that Federal agencies
refrain from contributing to the destruction or adverse modification of
critical habitat in any action authorized, funded or carried out by
such agency (agency action) is in addition to the section 7 prohibition
against jeopardizing the continued existence of a listed species; and
it is the only mandatory legal consequence of a critical habitat
designation. The Service's implementing regulations (50 CFR part 402)
define ``jeopardize the continuing existence of'' and ``destruction or
adverse modification of'' in very similar terms. To jeopardize the
continuing existence of a species means to engage in an action ``that
reasonably would be expected to reduce appreciably the likelihood of
both the survival and recovery of a listed species.'' Destruction or
adverse modification of habitat means an ``alteration that appreciably
diminishes the value of critical habitat for both the survival and
recovery of a listed species in the wild by reducing the reproduction,
numbers, or distribution of that species.'' Common to both definitions
is an appreciable detrimental effect to both the survival and recovery
of a listed species. An action that appreciably diminishes habitat for
recovery and survival may also jeopardize the continued existence of
the species by reducing reproduction, numbers, or distribution because
negative impacts to such habitat may reduce population numbers,
decrease reproductive success, or alter species distribution through
habitat fragmentation.
For a listed plant species, an analysis to determine jeopardy under
section 7(a)(2) would consider loss of the species associated with
habitat impacts. Such an analysis would closely parallel an analysis of
habitat impacts conducted to determine adverse modification of critical
habitat. As a result, an action that results in adverse modification
also would almost certainly jeopardize the continued existence of the
species concerned. Because habitat degradation and destruction is the
primary threat to these species, listing them will ensure that section
7 consultation occurs, and potential impacts to the species and their
habitat are considered, for any Federal action that may affect these
species. In many cases, listing also ensures that Federal agencies
consult with the Service even when Federal actions may affect
unoccupied suitable habitat where such habitat is essential to the
survival and recovery of the species. This is especially important for
plant species where consideration must be given to the seed bank
component of the species, and associated pollinators and dispersal
agents, which are not necessarily visible in the habitat throughout the
year. In practice, the Service consults with Federal agencies proposing
projects in areas where there is potentially suitable but unoccupied
habitat, particularly when the species was known to recently occur
there or in similar nearby areas, or the area is known to harbor seed
banks.
Apart from section 7, the Act provides no additional protection to
lands designated as critical habitat. Designating critical habitat does
not create a management plan for the areas where the listed species
occurs; does not establish numerical population goals or prescribe
specific management actions (inside or outside of critical habitat);
and does not have a direct effect on areas not designated as critical
habitat.
Critical habitat would provide no benefit to the species addressed
in this rule on non-Federal lands (i.e., private, State, County or City
lands) beyond that provided by listing. Critical habitat provides
protection on non-Federal lands only if there is Federal involvement (a
Federal nexus) through authorization or funding of, or participation,
in a project or activity on non-Federal lands. In other words,
designation of critical habitat on non-Federal lands does not compel or
require the private or other non-Federal landowner to undertake active
management for the species or to modify any activities in the absence
of a Federal nexus. Possible Federal agency involvement or funding that
could involve the species addressed in the rule on non-Federal lands
include the Corps through section 404 of the Clean Water Act, the
Federal Department of Housing and Urban Development, Federal Aviation
Administration, the INS, and the Federal Highway Administration.
Federal involvement, if it does occur, will be addressed regardless of
whether critical habitat is designated because interagency coordination
requirements such as the Fish and Wildlife Coordination Act (FWCA) and
section 7 of the Act are already in place. When a plant species is
listed, activities occurring on all lands subject to Federal
jurisdiction that may adversely affect the species would prompt the
requirement for consultation under section 7(a)(2) of the Act,
regardless of whether critical habitat has been designated.
While a designation of critical habitat on private lands would only
affect actions where a Federal nexus is present and would not confer
any additional benefit beyond that already provided by section 7
consultation because virtually any action that would result in an
adverse modification determination would also likely jeopardize the
species, a designation of critical habitat on private lands could
result in a detriment to the species. This is because the limited
effect of a critical habitat designation on private lands is often

[[Page 54952]]

misunderstood by private landowners whose property boundaries could be
included within a general description of critical habitat for a
specific species. Landowners may mistakenly believe that critical
habitat designation will be an obstacle to development and impose
restrictions on their use of their property. Unfortunately, inaccurate
and misleading statements reported through widely popular medium
available worldwide, are the types of misinformation that can and have
led private landowners to believe that critical habitat designations
prohibit them from making use of their private land when, in fact, they
face potential constraints only if they need a Federal permit or
receive Federal funding to conduct specific activities on their lands.
These types of misunderstandings, and the fear and mistrust they create
among potentially affected landowners, make it very difficult for the
Service to cultivate meaningful working relationships with such
landowners and to encourage voluntary participation in species
conservation and recovery activities. Without the participation of
landowners in the recovery process, the Service will find it very
difficult to recover species that occur on non-Federal lands.
A designation of critical habitat on private lands could actually
encourage habitat destruction by private landowners to rid themselves
of the perceived endangered species problem. Listed plants have limited
protection under the Act, particularly on private lands. Section
9(a)(2) of the Act, implemented by regulations at 50 CFR section 17.61
(endangered plants) and 50 CFR 17.71 (threatened plants) prohibits (1)
removal and reduction of listed plant species to possession from areas
under Federal jurisdiction, or their malicious damage or destruction on
areas under Federal jurisdiction; or (2) removal, cutting, digging up,
or damaging, or destroying any such species in knowing violation of any
State law or regulation including State criminal trespass laws.
Generally, on private lands, collection of, or vandalism to, listed
plants must occur in violation of State law to be a violation of
section 9 of the Act. The Service is not aware of any State law in
California that generally regulates or prohibits the destruction or
removal of federally listed plants on private lands (see section 9
discussion under ``Available Conservation Measures'' section of this
rule). Thus, a private landowner concerned about perceived land
management conflicts resulting from a critical habitat designation
covering his property would likely face no legal consequences if the
landowner removed the listed species or destroyed its habitat. For
example, in the spring of 1998, a Los Angeles area developer buried one
of the only three populations of the endangered Astragalus brautonii in
defiance of efforts under the CEQA to negotiate mitigation for the
species (T. Thomas, U.S. Fish and Wildlife Service). The designation of
critical habitat involves the publication of habitat descriptions and
mapped locations of the species in the Federal Register, increasing the
likelihood of potential search and removal activities at specific
sites.
The Service acknowledges that in some situations critical habitat
designation may provide some value to the species by notifying the
public about areas important for the species conservation and calling
attention to those areas in special need of protection. However, when
this limited benefit is weighed against the detriment to plant species
associated with the widespread misunderstanding about the effects of
such designation on private landowners and the environment of mistrust
and fear that such misunderstanding can create, the Service concludes
that the detriment to the species from a critical habitat designation
covering non-Federal lands outweighs the educational benefit of such
designation and that such designation is, therefore, not prudent. The
information and education process can more effectively be handled by
working directly with landowners and communities during the recovery
planning process and by the section 7 consultation and coordination
where the Federal nexus exists. The use of these existing processes
will impart the same knowledge to the landowners that critical habitat
designation would, but without the confusion and misunderstandings that
may accompany a critical habitat designation.
For similar reasons, the Service also concludes that there would be
no additional benefits to the species covered in this rule beyond the
benefits conferred by listing from a designation of critical habitat on
Federal lands. In the case of each of these plant species, the existing
occurrences of the species are known by the DOD and the U.S. Forest
Service and any action that would result in adverse modification would
almost certainly result in likely jeopardy to the species, so that a
designation of critical habitat on Federal lands would not confer any
additional benefit on the species. On the other hand, particularly on
National Forest System lands, a designation of critical habitat could
increase the threats to these species from vandalism and collection
similar to the threats identified in response to listing a species
(Oberbauer 1992, Beauchamp in litt. 1997). Simply listing a species can
precipitate commercial or scientific interest, both legal and illegal,
which can threaten the species through unauthorized and uncontrolled
collection for both commercial and scientific purposes. The listing of
species as endangered or threatened publicizes their rarity and may
make them more susceptible to collection by researchers or curiosity
seekers (Mariah Steenson pers. comm. 1997, M.Bosch, U.S. Forest Service
in litt. 1997). For example, the Service designated critical habitat
for the mountain golden heather (Hudsonia montana), a small shrub not
previously known to be commercially valuable or particularly
susceptible to collection or vandalism. After the critical habitat
designation was published in the Federal Register, unknown persons
visited a Forest Service wilderness area in North Carolina where the
plants occurred and, with a recently published newspaper article and
maps of the plant's critical habitat designation in hand, asked about
the location of the plants. Several plants the Service had been
monitoring were later found to be missing from unmarked Service study
plots. (Nora Murdock, U.S. Fish and Wildlife Service, pers. comm.
1998).
The Service has weighed the lack of overall benefits of critical
habitat designation beyond that provided by listing as threatened or
endangered, along with the benefits of public notification against the
detrimental effects of the negative public response and
misunderstanding of what critical habitat designation means and the
increased threats of illegal collection and vandalism, and has
concluded that critical habitat designation is not prudent for
Acanthomintha ilicifolia (San Diego thornmint), Monardella linoides
ssp. viminea (willowy monardella), Hemizonia conjugens (Otay tarplant),
and Dudleya stolonifera (Laguna Beach liveforever). The specific
reasons why designation of critical habitat is not prudent for each of
these species are addressed in the following discussion.

Dudleya stolonifera

Dudleya stolonifera occurs within the Central/Coastal NCCP.
However, only one of the six known populations and one minor population
are considered to be adequately conserved on lands designated as a
preserve. Three of the four major Dudleya stolonifera

[[Page 54953]]

populations, representing approximately 70 percent of the known
individuals, occur on private lands whose owners are not participating
in the Central/Coastal NCCP process. Federal involvement on these lands
is unlikely because they do not involve wetland areas or any other
activity associated with Federal agencies. If, in the future, there is
Federal involvement through permitting or funding, such as through the
Federal Highway Administration, then interagency coordination and
consultation required by section 7 would be in effect if such actions
may affect this species, once listed. As previously discussed, an
analysis to determine jeopardy under section 7(a)(2) would consider
loss of individual plants associated with habitat impacts. Such an
analysis would closely parallel any analysis of habitat impacts
conducted to determine adverse modification of critical habitat. A
jeopardy finding would be equivalent to a finding of adverse
modification of critical habitat. Therefore, there would be no
additional conservation benefit to the species from designation of
critical habitat beyond that provided by the species' listing.
All species of Dudleya are vulnerable to collection (Ayensu and
DeFilipps 1978). D. stolonifera is listed as a CITES Appendix I species
(see discussion under Factor D). Simply listing this species under the
Act would publicize the rarity of the plants and could make them
attractive to researchers, curiosity seekers or collectors of rare
plants. Field collected specimens have been reported in nursery trade
(Kei Nakai in litt. and discussion under Factor B of the ``Summary of
Factors Affecting the Species'' section of this rule), most likely
because of its attractiveness and accessibility, as well as taxonomic
interest; Publication of precise maps and descriptions of critical
habitat would likely increase the degree of threat to this species from
collection or vandalism and habitat degradation associated with such
collection and vandalism, and would likely contribute to its decline.
Therefore, the Service finds that critical habitat is not prudent
for Dudleya stolonifera at this time because such designation would
increase the risk of illegal collection and may increase the risk of
vandalism. Furthermore, the Service believes that no benefit over that
provided by listing would result from identification of critical
habitat on the non-Federal lands where this species occurs, and
designation would likely be detrimental for the reasons discussed
above. The identification of critical habitat would not increase
management or conservation efforts on State or private lands and could
impair those efforts. The Service believes that conservation of this
species on private lands can best be addressed by working directly with
landowners and communities during the recovery planning process and
through the interagency coordination and consultation processes of
section 7 should there be any future unforeseen Federal involvement.

Acanthomintha ilicifolia

Acanthomintha ilicifolia occurs on Federal and private lands, both
inside and outside areas covered by the MSCP. Four of the eleven major
populations are on Federal (Forest Service) lands. The Forest Service
is aware of the occurrences and habitat of the species on their lands.
The Cleveland National Forest consults with the Service under section 7
for activities related to other listed species in the area and would be
subject to similar requirements as a result of this listing.
Designation of critical habitat would not necessarily require the
Forest to increase or change their commitment or management efforts for
this species, only to avoid adverse modification of such critical
habitat.
Four populations are on private lands within the MSCP planning
subregion, and landowners and regional governments are aware of these
occurrences. Three of these populations are considered adequately
conserved; the fourth of these may be protected by the MHCP in the
future. The remaining major populations are on private lands outside of
the MSCP planning area where no Federal involvement is anticipated. If,
in the future, there is Federal involvement through permitting or
funding, such as through the Federal Highway Administration, section 7
consultation would be required if such action may affect the species,
once listed. As previously discussed, an analysis to determine jeopardy
under section 7(a)(2) would consider loss associated with habitat
impacts. Such an analysis would closely parallel any analysis of
habitat impacts conducted to determine adverse modification of critical
habitat and would result in identical section 7 findings. A jeopardy
finding would be equivalent to a finding of adverse modification of
critical habitat.
The Service finds that critical habitat is not prudent for
Acanthomintha ilicifolia at this time because such designation would
provide no benefit over that provided by listing on privately owned
lands where this species occurs. Landowners where the species occur are
aware of its presence and status. Critical habitat designation on these
private lands would not change the way those lands are managed or
require specific management actions to take place, and could be
detrimental because of potential landowner misunderstandings about the
real effects of critical habitat designation on private lands. The
species is currently known and managed on Federal lands; no change in
management would occur as a result of critical habitat designation and
all activities that may affect the species on these Federal lands would
be subject to section 7 consultation. The Service believes that the
conservation of this species on private lands can best be addressed by
working directly with landowners and communities during the recovery
planning process and through the interagency coordination and
consultation processes of section 7 for those activities with Federal
agency involvement.

Hemizonia conjugens

Hemizonia conjugens occurs on private lands, all of which are
situated within the MSCP subregion. If there is future Federal
involvement such as through actions funded, permitted or conducted by
the Federal Highway Administration, Federal Aviation Administration, or
Border Patrol activities, then section 7 consultation would be required
if the activities may affect the species, once listed. As previously
discussed, an analysis to determine jeopardy under section 7(a)(2)
would consider loss associated with habitat impacts. Such an analysis
would closely parallel any analysis of habitat impacts conducted to
determine adverse modification of critical habitat and result in
identical section 7 findings. A jeopardy finding would be equivalent to
a finding of adverse modification of critical habitat.
Private lands support all known populations of Hemizonia conjugens
in the United States. Nine major populations, which support about 35
percent of the individuals, will be adequately conserved by the MSCP.
The Service is unable to state at this time if the three remaining
major populations will be adequately conserved under MSCP, because the
subarea plan for the area containing the largest population (Chula
Vista) has not yet been approved by the Service.
The Service has determined that the protection provided by MSCP
preservation has reduced the likelihood of extinction of this species
in the foreseeable future. But the species is threatened by activities
not subject to MSCP jurisdiction, such as State

[[Page 54954]]

transportation projects (California Department of Transportation),
border fencing, ORV activity, new facilities (Immigration and
Naturalization Service), and airport expansion (Federal Aviation
Administration). Any of these effects associated with a Federal nexus
will be subject to section 7 consultation, as previously discussed. All
existing sites are either currently known by the landowners, or the
appropriate landowners will be notified prior to publication of this
rule. The Service believes that the conservation of this species on
private lands can best be addressed by working directly with landowners
and communities during the recovery planning process, and through the
interagency coordination and consultation processes of section 7 for
those activities with Federal agency involvement. Therefore, the
Service finds that critical habitat is not prudent for Hemizonia
conjugens at this time because such designation would not be of benefit
to the species. The Service believes that no benefit over that provided
by listing would result from identification of critical habitat on
privately owned land where this species occurs, and it could be
detrimental because of potential landowner misunderstandings about the
real effects of critical habitat designation on private lands.

Monardella linoides ssp. viminea

The entire U.S. distribution of Monardella linoides ssp. viminea
occurs within the MSCP subregion. However, nearly 80 percent of the
populations of M. linoides ssp. viminea are found on Marine Corp Air
Station, Miramar lands that are not under jurisdiction of the MSCP. One
of the largest populations (2,000 to 3,000 individuals) is located
partially on private property, partially on Federal land managed by the
Navy, and partially on City-owned property (Sycamore Canyon City Park).
The DOD is aware of the species' presence, consults with the Service
under section 7 for activities related to other listed species in the
area and would be subject to these same requirements when this species
is listed. Likewise, because of this plant's riparian habitat, the
Corps is aware of the occurrences and habitat of this plant and the
requirement for consultation under section 7 of the Act prior to
issuance of permits under section 404 of the Clean Water Act.
Designation of critical habitat would not increase the commitment of
management efforts of the DOD or the Corps. At this time there are no
conservation agreements for this species; however, the Service is
currently reviewing the Draft Integrated Natural Resource Management
Plan for the Marine Corps Air Station, Miramar. Although the draft does
not provide specific protection measures, it does include periodic
monitoring, and with input from the Service, more specific conservation
measures may be added into the final version of the plan.
The Service has determined that the populations of Monardella
linoides ssp. viminea covered by the MSCP will be adequately protected
by the participating jurisdictions and landowners. This species likely
will continue to be impacted by activities not subject to the MSCP, but
those activities are potentially subject to section 7 consultation
(e.g., sand and gravel mining, State and Federal transportation
projects, Department of Defense activities, pipelines and utility
lines). On non-Federal lands, where about 20 percent of the populations
of Monardella linoides ssp. viminea exist, critical habitat would
provide no additional benefits above that provided by listing because
it would not require any special management actions, and there is not
likely to be any future Federal involvement. The existing sites are
either currently known by the landowners, or the affected landowners
will be notified prior to publication of this rule. On Federal lands,
and on non-Federal lands where a Federal nexus exists, section 7
consultation would be required for any action that may affect the
species, once listed. As previously discussed, an analysis to determine
jeopardy under section 7(a)(2) would consider loss associated with
habitat impacts. Such an analysis would closely parallel any analysis
of habitat impacts conducted to determine adverse modification of
critical habitat and result in identical section 7 findings. A jeopardy
finding would be equivalent to a finding of adverse modification of
critical habitat.
Monardella linoides ssp. viminea is found in cultivation, and the
listing of this species could result in increased interest and illegal
collection. Listing of plant species can generate publicity, which may
precipitate commercial and scientific interest in the species (M.
Steenson pers. comm. 1997, M. Bosch in litt. 1997). This interest can
threaten the species through illegal collection and by excessive
trampling of plants by individuals interested in seeing rare plants.
Publication of precise maps and descriptions of critical habitat would
increase the degree of threat to this species from collection or
vandalism and could contribute to its decline (see Factor B of the
``Summary of Factors Affecting the Species'' section of this final rule
for additional discussion of collection threats).
Therefore, the Service finds that critical habitat is not prudent
for Monardella linoides ssp. viminea at this time because such
designation would not be of benefit to the species, and could increase
the threat of illegal collection. The Service believes that no benefit
over that provided by listing would result from identification of
critical habitat on privately owned land where this species occurs. The
Service believes that the conservation of this species can best be
addressed by working directly with landowners and communities during
the recovery planning process, and through the interagency coordination
and consultation processes of section 7 for those activities with
Federal agency involvement.
Given all of the above considerations, the Service finds that
designation of critical habitat for Dudleya stolonifera, Acanthomintha
ilicifolia, Hemizonia conjugens, and Monardella linoides ssp. viminea
is not prudent at this time.

Available Conservation Measures

Conservation measures provided to species listed as endangered or
threatened under the Act include recognition, recovery actions,
requirements for Federal protection, and prohibitions against certain
activities. Recognition through listing results in public awareness and
conservation actions by Federal, State, local, and private agencies,
groups, and individuals. The Act provides for possible land acquisition
from willing sellers and cooperation with the States and requires that
recovery actions be carried out for all listed species. The protection
required of Federal agencies and the prohibitions against certain
activities involving listed plants are discussed, in part, below.
Section 7(a) of the Act, as amended, requires Federal agencies to
evaluate their actions with respect to any species that is proposed or
listed as endangered or threatened and with respect to its critical
habitat, if any is being designated. Regulations implementing this
interagency cooperation provision of the Act are codified at 50 CFR
part 402. Section 7(a)(4) of the Act requires Federal agencies to
confer with the Service on any action that is likely to jeopardize the
continued existence of a species proposed for listing or result in
destruction or adverse modification of proposed critical habitat. If a
species is listed subsequently, section 7(a)(2) requires Federal
agencies to ensure that activities they authorize, fund, or carry out
are not likely to jeopardize the

[[Page 54955]]

continued existence of such a species or to destroy or adversely modify
its critical habitat. If a Federal action may affect a listed species
or its critical habitat, the responsible Federal agency must enter into
formal consultation with the Service. Section 7(a)(1) requires Federal
agencies to use their authorities to conserve listed species.
Federal agencies expected to have involvement with Monardella
linoides ssp. viminea include the Army Corps of Engineers and the
Environmental Protection Agency due to their permit authority under
section 404 of the Clean Water Act. Because M. linoides ssp. viminea
occurs on Marine Corps Air Station, Miramar, the Marine Corps will
likely be involved through military activities or potential transfer of
excess Federal lands. The Forest Service has jurisdiction over several
populations of Acanthomintha ilicifolia. Monardella linoides ssp.
viminea and Hemizonia conjugens may be affected by projects funded in
whole, or in part, by the Federal Highway Administration. Additionally,
H. conjugens is expected to be affected by INS projects and Federal
Aviation Agency projects on Otay Mesa.
The Act and its implementing regulations set forth a series of
general prohibitions and exceptions that apply to all endangered or
threatened plants. All prohibitions of section 9(a)(2) of the Act,
implemented by 50 CFR 17.61 (endangered plants) and 17.71 (threatened
plants), apply. These prohibitions, in part, make it illegal for any
person subject to the jurisdiction of the United States to import or
export, transport in interstate or foreign commerce in the course of a
commercial activity, sell or offer for sale in interstate or foreign
commerce, or remove and reduce the species to possession from areas
under Federal jurisdiction. In addition, for plants listed as
endangered, the Act prohibits the malicious damage or destruction on
areas under Federal jurisdiction and the removal, cutting, digging up,
or damaging or destroying of such plants in knowing violation of any
State law or regulation, including State criminal trespass law. Section
4(d) of the Act allows for the protections provided for endangered
species to be extended to threatened species through regulation, and 50
CFR 17.71 extends prohibitions for endangered plants, with one
exception, to plants listed as threatened. Seeds from cultivated
specimens of threatened plant species are exempt from these
prohibitions provided that their containers are marked ``Of Cultivated
Origin.'' Certain exceptions to the prohibitions apply to agents of the
Service and State conservation agencies.
The Act and 50 CFR 17.62, 17.63, and 17.72 also provide for the
issuance of permits to carry out otherwise prohibited activities
involving endangered or threatened plants under certain circumstances.
Such permits are available for scientific purposes, economic hardship
purposes, and to enhance the propagation or survival of the species.
For threatened plants, permits are also available for botanical or
horticultural exhibition, educational purposes, economic hardships, or
special purposes consistent with the purpose of the Act.
It is the policy of the Service, published in the Federal Register
on July 1, 1994 (59 FR 34272), to increase public understanding of the
prohibited acts that will apply under section 9 of the Act. Two of the
four species in this rule are known to occur on lands under the
jurisdiction of the Forest Service or the DOD (Marine Corps).
Collection of listed plants or activities that would damage or destroy
listed plants on these lands is prohibited without a Federal endangered
species permit. Such activities on non-Federal lands would constitute a
violation of section 9 of the Act if activities were conducted in
knowing violation of California State law or regulation, or in
violation of California State criminal trespass law.
The Service believes that, based upon the best available
information, the following actions will not result in a violation of
section 9, provided these activities are carried out in accordance with
existing regulations and permit requirements:

(1) Activities authorized, funded, or carried out by Federal
agencies (e.g., grazing management, agricultural conversions,
wetland and riparian habitat modification, flood and erosion
control, residential development, recreational trail development,
road construction, hazardous material containment and cleanup
activities, prescribed burns, pesticide/herbicide application,
pipelines or utility lines crossing suitable habitat,) when such
activity is conducted in accordance with any reasonable and prudent
measures given by the Service in a consultation conducted under
section 7 of the Act;
(2) Casual, dispersed human activities on foot or horseback
(e.g., bird watching, sightseeing, photography, camping, hiking);
(3) Activities on private lands that do not require Federal
authorization and do not involve Federal funding, such as grazing
management, agricultural conversions, flood and erosion control,
residential development, road construction, and pesticide/herbicide
application when consistent with label restrictions;
(4) Residential landscape maintenance, including the clearing of
vegetation around one's personal residence as a fire break.

The Service believes that the following might potentially result in
a violation of section 9; however, possible violations are not limited
to these actions alone:

(1) Unauthorized collecting of the species on Federal lands;
(2) Application of pesticides/herbicides in violation of label
restrictions;
(3) Interstate or foreign commerce and import/export without
previously obtaining an appropriate permit. Permits to conduct
activities are available for purposes of scientific research and
enhancement of propagation or survival of the species.

The Act and 50 CFR 17.62 and 17.63 for endangered plants and 17.72
for threatened plants provide for the issuance of permits to carry out
otherwise prohibited activities involving endangered and threatened
plants under certain circumstances. Such permits are available for
scientific purposes and to enhance the propagation or survival of the
species. For threatened plants, permits are also available for
botanical or horticultural exhibition, educational purposes, or special
purposes consistent with the purposes of the Act.
Questions regarding whether specific activities would constitute
violations of section 9 should be directed to the Field Supervisor of
the Service's Carlsbad Field Office (see ADDRESSES section). Requests
for copies of the regulations concerning listed plants (50 CFR 17.61
and 17.71) and general inquiries regarding prohibitions and permits may
be addressed to the U.S. Fish and Wildlife Service, Ecological
Services, Endangered Species Permits, 911 N.E. 11th Avenue, Portland,
Oregon, 97232-4181 (telephone 503/231-2063; facsimile 503/231-6243).

National Environmental Policy Act

The Fish and Wildlife Service has determined that Environmental
Assessments and Environmental Impact Statements, as defined under the
authority of the National Environmental Policy Act of 1969, need not be
prepared in connection with regulations adopted pursuant to section
4(a) of the Endangered Species Act of 1973, as amended. A notice
outlining the Service's reasons for this determination was published in
the Federal Register on October 25, 1983 (48 FR 49244).

Paperwork Reduction Act

This rule does not contain any information collection requirements
for which the Office of Management and Budget (OMB) approval under the

[[Page 54956]]

Paperwork Reduction Act, 44 U.S.C. 3501 et seq. is required. An
information collection related to the rule pertaining to permits for
endangered and threatened species has OMB approval and is assigned
clearance number 1018-0094. This rule does not alter that information
collection requirement. For additional information concerning permits
and associated requirements for threatened species, see 50 CFR 17.32.

References

A complete list of all references cited in this final rule is
available upon request from the Carlsbad Field Office (see ADDRESSES
section).
Author: The primary authors of this final rule are Fred M. Roberts,
Jr. and Gary D. Wallace, Ph.D. (see ADDRESSES section; telephone 760/
431-9440).

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

Accordingly, amend part 17, subchapter B of chapter I, title 50 of
the Code of Federal Regulations, as set forth below:

PART 17--[AMENDED]

1. The authority citation for part 17 continues to read as follows:

Authority: 16 U.S.C. 1361-1407; 16 U.S.C. 1531-1544; 16 U.S.C.
4201-4245; Pub. L. 99-625, 100 Stat. 3500; unless otherwise noted.

2. Section 17.12(h) is amended by adding the following, in
alphabetical order under FLOWERING PLANTS, to the List of Endangered
and Threatened Plants, to read as follows:

Sec. 17.12 Endangered and threatened plants.

* * * * *
(h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
Species
-------------------------------------------------- Historic range Family Status When Critical Special rules
Scientific name Common name listed habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
FLOWERING PLANTS:
* * * * * * *
Acanthomintha ilicifolia...... San Diego U.S.A. (CA) Mexico Lamiaceae................. T 649 NA NA
thornmint.
* * * * * * *
Dudleya stolonifera........... Laguna Beach U.S.A. (CA)....... Crassulaceae.............. T 649 NA NA
liveforever.
* * * * * * *
Hemizonia conjugens........... Otay tarplant.... U.S.A. (CA) Mexico Asteraceae................ T 649 NA NA
* * * * * * *
Monardella linoides ssp. Willowy U.S.A. (CA) Mexico Lamiaceae................. E 649 NA NA
viminea. monardella.
* * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------

Dated: September 29, 1998.
Jamie Rappaport Clark,
Director, Fish and Wildlife Service.
[FR Doc. 98-26858 Filed 10-9-98; 8:45 am]
BILLING CODE 4310-55-P