[Federal Register Volume 72, Number 185 (Tuesday, September 25, 2007)]
[Rules and Regulations]
[Pages 54377-54384]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-18678]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018--AU77


Endangered and Threatened Wildlife and Plants; Prudency 
Determination for the Designation of Critical Habitat for Trichostema 
austromontanum ssp. compactum

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Notice of final determination.

-----------------------------------------------------------------------

SUMMARY: We, the U.S. Fish and Wildlife Service (Service), have 
reconsidered whether designating critical habitat for Trichostema 
austromontanum ssp. compactum, a plant, is prudent. We listed this 
taxon as threatened under the Endangered Species Act of 1973, as 
amended (Act), in 1998; at that time, we determined that designation of 
critical habitat was not prudent, because designation would increase 
the degree of threat to the taxon and would not benefit the taxon. As a 
consequence of a settlement agreement, we withdrew our previous not-
prudent determination, and agreed to reevaluate the prudency of 
designating critical habitat. However, based on our review and 
evaluation of the best scientific and commercial information available, 
we believe that designation of critical habitat continues to be not 
prudent for T. a. ssp. compactum.

DATES: This rule becomes effective on October 25, 2007.

ADDRESSES: Comments and materials we receive, as well as supporting 
documentation used in the preparation of this determination, will be 
available for public inspection, by appointment,

[[Page 54378]]

during normal business hours, at the Carlsbad Fish and Wildlife Office, 
6010 Hidden Valley Road, Carlsbad, CA 92011 (telephone 760-431-9440). 
The final determination will also be available via the Internet at 
http://www.fws.gov/carlsbad.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, Carlsbad 
Fish and Wildlife Office, telephone, 760-431-9440; facsimile, 760-431-
9624.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the final prudency determination. For more information on biology, 
ecology, and taxonomy of Trichostema austromontanum ssp. compactum, 
refer to the final rule listing this taxon as threatened published in 
the Federal Register on September 14, 1998 (63 FR 49006), and the 
notice of proposed prudency determination for the designation of 
critical habitat for this taxon published in the Federal Register on 
September 26, 2006 (71 FR 56094).

Taxonomy and Description

    Trichostema austromontanum ssp. compactum, a member of the 
Lamiaceae (mint family), was described by F. Harlan Lewis (1945, pp. 
275-303) based on specimens collected in 1941 by M. L. Hilend in 
Riverside County, California. The taxon occurs on the margins of a 
single vernal pool (Bauder 1999, p. 13; Fraga and Wall 2007, p. 11). 
Trichostema austromontanum ssp. compactum is a compact, soft-villous 
(with long, shaggy hairs) annual plant, approximately 4 inches (10 
centimeters) tall, with short internodes (stem segments between leaves) 
(Lewis 1945, pp. 284-386, Lewis 1993, p. 732), elliptic leaves, and 
blue flowers in a five-lobed corolla. The two stamens are blue. The 
fruit consists of four smooth, basally joined nutlets. This taxon 
flowers from July to November (Fraga and Wall 2007, pp. 2-5).

Threats

    For a discussion of the threats to this species please refer to the 
final rule listing this taxon as threatened (September 14, 1998; 63 FR 
49006), our July 28, 2006, 5-year review (available at http://www.fws.gov/carlsbad), and the notice of proposed prudency 
determination for the designation of critical habitat for this taxon 
published in the Federal Register on September 26, 2006 (71 FR 56094).

Previous Federal Actions

    On September 13, 2004, the Center for Biological Diversity (CBD) 
and California Native Plant Society (CNPS) challenged our failure to 
designate critical habitat for this taxon and five other plant species 
(Center for Biological Diversity, et al. v. Gale Norton, Secretary of 
the Department of the Interior, et al., ED CV-04-1150 RT (SGLx) C. D. 
California). The CBD and CNPS alleged that we failed to provide 
evidence in the final listing rule supporting our determination that 
designation of critical habitat would not be beneficial to the species, 
and that we failed to establish how the publication of critical habitat 
maps would increase the threat to the species. Without reaching any 
conclusions on the merits of the previous decision, we agreed to submit 
for publication in the Federal Register a withdrawal of our previous 
not-prudent determination, and a proposed designation of critical 
habitat, if prudent and determinable, on or before September 20, 2006, 
and a final rule by September 20, 2007. On September 26, 2006, we 
published a notice proposing a new not-prudent determination for the 
designation of critical habitat for Trichostema austromontanum ssp. 
compactum, and announced the opening of a 60-day public comment period 
on the proposed determination (71 FR 56094). This notice of final 
determination complies with the April 14, 2005, settlement agreement.
    For a discussion of the Federal actions that occurred prior to the 
2006 proposed determination, please refer to the ``Previous Federal 
Actions'' section in the final rule listing this taxon as threatened 
(September 14, 1998; 63 FR 49006), and the notice of proposed prudency 
determination for the designation of critical habitat for this taxon 
published in the Federal Register on September 26, 2006 (71 FR 56094).

Summary of Comments and Recommendations

    We requested written comments from the public during a 60-day 
comment period on the notice of proposed prudency determination for the 
designation of critical habitat for Trichostema austromontanum ssp. 
compactum on September 26, 2006 (71 FR 56094). We also contacted 
appropriate Federal, State, and local agencies; scientific 
organizations; and other interested parties and invited them to comment 
on the proposed determination.
    During the comment period that opened on September 26, 2006, and 
closed on November 27, 2006, we received four comments directly 
addressing the proposed determination: three from peer reviewers and 
one joint comment letter from the Center for Biological Diversity and 
the Native Plant Conservation Campaign. In the following summary, we 
have addressed the comments we received; we have also incorporated 
these comments into the prudency determination as appropriate. We did 
not receive any requests for a public hearing.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from four knowledgable individuals 
with scientific expertise that included familiarity with the species, 
the geographic region in which the species occurs, and conservation 
biology principles. We received responses from three of the peer 
reviewers. The peer reviewers generally concurred with our methods and 
found our information to be accurate. Peer review comments are 
addressed in the following summary and incorporated into this final 
prudency determination as appropriate.

Peer Reviewer Comments

    1. Comment: The proposed prudency determination stated that 
Trichostema austromontanum ssp. compactum is distributed on the 
northwestern edge of its vernal pool habitat and that the plants flower 
in July and August. One peer reviewer commented that the plant is found 
most frequently along the northern margin but that the plant is also 
distributed on the northeastern and eastern edge of the vernal pool as 
well as the northwestern edge. The commenter also stated that the peak 
bloom for this species may be in July and August, but that the plant 
was also found in flower from July through November of 2006.
    Our Response: We have incorporated this information on the 
distribution and flowering period of this taxon into the ``Taxonomy and 
Description'' section of this final prudency determination.
    2. Comment: The peer reviewers had differing opinions about our 
assertion that the publication of critical habitat could bring more 
visitors to the location where the plant grows. Two peer reviewers 
agreed that the best way to protect the species is to reduce traffic to 
the area and lower its visibility. However, one peer reviewer stated 
that the publication of critical habitat maps would not significantly 
increase visitation to the area because this taxon is not a showy 
plant, is not sought after by hobbyists or professional botanists, and 
is unlikely to draw casual visitors.
    Our Response: We continue to conclude that designation of critical 
habitat is not prudent at this time.

[[Page 54379]]

Direct threats associated with unregulated visitation to the area have 
apparently decreased as a result of management actions initiated by the 
California Department of Parks and Recreation (CDPR). While this taxon 
may not be sought after by a large number of hobbyists or professional 
botanists, the vernal pool occupied by the taxon was impacted by 
recreation and plants were lost to trampling prior to the installation 
of barriers by the CDPR. Since the ecosystem where Trichostema 
austromontanum ssp. compactum grows is vulnerable to disturbance, and 
is the only known location where this unique ecosystem is found within 
the San Jacinto Mountains, all possible actions should be taken to 
protect this ecosystem from further degradation and disturbance. We 
believe that the act of designating critical habitat could bring 
additional visitors to the area because its location would be published 
with explicit geographic coordinates. An increase in visitation would 
increase the degree of threat to the taxon from trampling and would 
directly contradict the efforts of the CDPR to restrict visitation to 
this area and conserve this species.
    3. Comment: One peer reviewer stated that the Service should 
provide quantifiable and verifiable examples of where past designations 
of critical habitat, or other actions that publicize the location of a 
listed species, have resulted in damage to a species or its habitat 
from tremendous increases in visitation and trampling.
    Our Response: The District Superintendent of the Inland Empire 
District of California State Parks (CDPR) has expressed concern to us 
that the critical habitat designation process may place this plant at 
increased risk via increased visitation (Watts 2006). Prior to its 
listing under the Act, Trichostema austromontanum ssp. compactum was 
impacted by trampling associated with recreational use of its habitat. 
In recent years, this threat has been reduced by conservation measures 
implemented by the CDPR, which include installing barriers, removing 
signs, and removing the location of this area from maps of the park. 
Because these measures have been successful in reducing threats to the 
taxon, we believe that any action that contravenes these measures can 
be expected to increase threats to the taxon. We believe that 
publication of specific locations and maps associated with a critical 
habitat designation for this taxon, with the attendant publicity that a 
designation would likely generate, can be expected to increase interest 
in the area where the taxon is found because of the interest that the 
public and scientific community have in rare, threatened, and 
endangered species, and in unique ecosystems. We believe that this 
interest could lead to increased visitation to the only area where T. 
a. ssp. compactum is found, thereby increasing the threat of trampling 
to this species.
    We know of one specific example of a case where the designation of 
critical habitat resulted in higher visitation to an area and higher 
collection pressure. In the prudency determination for the rock gnome 
lichen (66 FR 51445; October 9, 2001), we cited the case of another 
federally listed North Carolina mountain plant for which critical 
habitat was designated; the taxon was severely impacted by collectors 
immediately after the critical habitat maps were published. This 
collection happened even though this plant was not previously known to 
be desired by rare plant collectors and had never been offered for sale 
in commercial trade. For the rock gnome lichen itself (66 FR 51445; 
October 9, 2001), we documented that after the species was listed, an 
illegal collection occurred at a location within a National Park, and 
another population outside the Park was vandalized for unknown reasons 
(the lichens were scraped off the rock to form graffiti). Thus, 
although Trichostema austromontanum ssp. compactum may not be sought 
after by a large number of hobbyists or professional botanists at 
present, critical habitat designation could increase interest and lead 
to increased visitation.
    Due to the rarity of Trichostema austromontanum ssp. compactum and 
its fragile nature, we do not want to increase the threats to it by 
drawing attention to its location. In years when climatic conditions 
are unfavorable to the taxon, only a few individuals may be present at 
any one time or location and it would be relatively easier for a small 
amount of activity to destroy the majority of the plants. In another 
study of an endangered plant, demographic modeling results indicated 
that when the effects of trampling and bad climatic conditions were 
coupled, extinction was accelerated (Maschinski et al. 1997). The fact 
that CDPR has invested money and effort to minimize the visibility of 
this area to recover this species and its unique habitat indicates that 
CDPR shares our concern about impacts associated with increased 
visitation to the area.
    4. Comment: One peer reviewer agreed that the only way to protect 
Trichostema austromontanum ssp. compactum was to reduce traffic to the 
area and to lower its public visibility; however, the peer reviewer 
stated that critical habitat should be designated because a future 
Federal project may impact this area. While acknowledging that a 
Federal project in this area appears unlikely, this peer reviewer gave 
examples of three California State Parks where unexpected projects with 
a Federal nexus have been proposed: the power line through Anza-Borrego 
State Park (Sunrise Powerlink Project); the toll road through San 
Onofre State Park; and the expansion of the border fence (US/Mexico 
Border Infrastructure Project) in Border Field State Park. The peer 
reviewer stated that none of these projects were foreseen, but the 
presence of critical habitat could provide additional protection on 
State lands against unforeseen Federal projects.
    Our Response: The locations of the State Parks cited by the peer 
reviewer may have contributed to the ``unforeseen'' projects being 
proposed in those areas. For example, Border Fields State Park is 
directly on the United States/Mexico border and San Onofre State Park 
is adjacent to residential development and Interstate 5; the proximity 
of these parks to existing infrastructure may make these parks more 
vulnerable to the expansion of existing infrastructure. Also, the 
alignment for the Sunrise Powerlink Project through Anza-Borrego State 
Park is proposed within an existing utility easement.
    On the basis of a review of current infrastructure and regional 
planning efforts and projections, the area occupied by Trichostema 
austromontanum ssp. compactum is not adjacent to existing or proposed 
urban development or large-scale infrastructure, nor is it traversed by 
any existing or planned utility easements. Also, the steep terrain 
surrounding the State Park (on Mount San Jacinto) makes future utility 
and infrastructure projects unlikely. In addition, as discussed in the 
``Benefits to the Species from Critical Habitat Designation'' section 
of the proposed determination, the specific area where this plant is 
found is a designated State of California Natural Preserve, which means 
that protection and management of sensitive resources is the highest 
priority for this area. As a result of these factors, we do not foresee 
any future Federal projects that would result in destruction or adverse 
modification of the habitat for this taxon.
    However, if a Federal project was proposed that could negatively 
impact Trichostema austromontanum ssp. compactum, a section 7 
consultation would be required. The designation of critical habitat 
would benefit the species by ensuring that a Federal project would

[[Page 54380]]

not result in the destruction or adverse modification of the critical 
habitat. However, because of the low likelihood of a project with a 
Federal nexus occurring in the taxon's habitat, we believe that the 
increased threat to the plant due to potential increased human 
visitation outweighs the benefits of designating critical habitat for 
this taxon (see ``Prudency Determination'' section below for a detailed 
discussion).
    5. Comment: One peer reviewer commented that an alternate location 
with suitable habitat should be sought so that an introduced population 
could be created and sustained.
    Our Response: In the preparation of this determination, we asked 
individuals knowledgeable about the area where Trichostema 
austromontanum ssp. compactum is found if they knew of any additional 
vernal pool habitat where another population may currently exist or 
where a population could be introduced. No additional vernal pool 
habitat is known to occur within or adjacent to San Jacinto State Park.

Public Comments

    6. Comment: One commenter disagreed with our statement in the 
proposed determination that information on the location of Trichostema 
austromontanum ssp. compactum and its habitat is no longer available on 
the internet and provided links to two Web sites containing postings on 
rare plant habitat. The commenter also stated that interested parties 
could easily access additional information on the location on internet-
accessible herbarium databases.
    Our Response: We acknowledge that information regarding the 
location of the taxon and its habitat is available; however, the 
location information has never been presented to the public at the 
level it would be through the publicity that accompanies the 
publication of a critical habitat rule. One of the Web sites the 
commenter cited provides aerial maps and information about user-
specified locations. However, the location information provided on the 
Web site is somewhat general and would likely be difficult to use to 
find the area where the taxon occurs. Also, the information on the Web 
site states that there is no official State Park map because the area 
is a wildlife preserve and the Park tries to limit the number of 
visitors. The second Web site that the commenter provided contains 
general information about the species and only regional and county-
level information about the location of the area occupied by this 
taxon. As noted by the commenter, online herbaria also provide textual 
information about the location of this species. However, location 
information provided by these types of databases is often general. 
Also, these online herbarium databases do not include mapped 
information and are not likely visited by the public at large.
    Therefore, currently available location information is limited and 
unlikely to be sought out by the general public. The designation of 
critical habitat, however, would result in a single document--including 
precise information about the species, where it is found, and a map 
with geographic coordinates--being published in the Federal Register. A 
primary purpose of the Federal Register is to make information readily 
accessible to the public, in a form that is easy to understand, 
regarding decisions made by the Federal government.
    7. Comment: One commenter stated that possible increases in the 
number of visitors to the area where Trichostema austromontanum ssp. 
compactum grows following designation of critical habitat could be 
minimized through a variety of mechanisms after designation.
    Our Response: The commenter did not provide any suggestions of the 
type of mechanisms that could be used to minimize visitation following 
the publication of critical habitat maps.
    8. Comment: One commenter stated that the analysis for the prudency 
determination does not address the issue of global climate change. The 
commenter stated that species like Trichostema austromontanum ssp. 
compactum are vulnerable to the effects of global climate change 
because of their small population size and their location at high 
altitudes (Parmesan 2006).
    Our Response: The article cited by the commenter (Parmesan 2006) 
reviews several cases where climate change has resulted in shifts in 
species' phenology, distribution, and in some cases extinction or 
extirpation. We are not currently aware of any species-specific 
information indicating that global climate change is a potential threat 
for Trichostema austromontanum ssp. compactum, nor did the commenter 
provide any species-specific information. At this time, we do not know 
how climate change will affect T. a. ssp. compactum. Currently, the 
habitat where this taxon is found is isolated and a function of the 
local topography. If changes in climate shift the timing or the amount 
of precipitation or the amount of evaporation at this location, T. a. 
ssp. compactum could be affected; however, we do not currently have 
information on how and to what extent the taxon might be affected. 
Furthermore, including an attempt to address any potential impacts of 
global climate change to T. a. ssp. compactum would not alter our 
critical habitat prudency analysis in this situation. An analysis of 
such a potential threat would not change our conclusion that the 
identification of critical habitat for T. a. ssp. compactum can be 
expected to increase the degree of threat from trampling, and that any 
benefits resulting from a designation are outweighed by that expected 
increase in human threat to the taxon.
    9. Comment: One commenter stated that critical habitat allows for a 
set of checks and balances that support rare species conservation under 
unforeseen future changes in management.
    Our Response: If a Federal project was proposed that could 
negatively impact Trichostema austromontanum ssp. compactum, a section 
7 consultation would be required. The designation of critical habitat 
would benefit the species by ensuring that a Federal project would not 
result in the destruction or adverse modification of the designated 
critical habitat. However, because of the low likelihood of a project 
with a Federal nexus occurring in the taxon's habitat, we believe that 
the increased threat to the plant due to potential increased human 
visitation outweighs the benefits of designating critical habitat for 
this taxon (see ``Prudency Determination'' section below for a detailed 
discussion). In addition, we do not foresee any changes in management 
that would result in destruction or adverse modification of the habitat 
for this taxon, based on: (1) The considerable management effort that 
CDPR has already undertaken to conserve T. a. ssp. compactum; (2) 
CDPR's commitment to work with us, California Department of Fish and 
Game, California Native Plant Society and Rancho Santa Ana Botanic 
Garden to establish a long-term conservation strategy for this taxon; 
and (3) the fact that specific area where this plant is found is a 
designated State of California Natural Preserve, which means that 
protection and management of sensitive resources is the highest 
priority for this area.

Summary of Changes From the Proposed Prudency Determination

    We made changes in this final prudency determination on the basis 
of public or peer review comments and information received during the 
open comment period. Specifically we:
    1. Added information related to the distribution and time of 
flowering for the species (see response to Comment 1 and the 
``Background'' section);

[[Page 54381]]

    2. Added information about the need for future Federal projects to 
consult under section 7(a)(2) of the Act (see response to Comment 4); 
and
    3. Clarified the suggestion that no information is available on the 
internet relating to the location where this species occurs (see 
response to Comment 6).
    These revisions added clarity and specificity to the rule; however 
we did not change our determination that the designation of critical 
habitat is not prudent at this time.

Prudency Determination

Background

    Section 4(a)(3) of the Act and implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is determined to be 
endangered or threatened. Regulations under 50 CFR 424.12(a)(1) state 
that the designation of critical habitat is not prudent when one or 
both of the following situations exist: (1) The species is threatened 
by taking or other human activity and the identification of critical 
habitat can be expected to increase the degree of threat to the 
species; or (2) such designation of critical habitat would not be 
beneficial to the species.
    In our September 14, 1998 final listing rule (63 FR 49006), we 
determined that a designation of critical habitat could increase the 
degree of threat to Trichostema austromontanum ssp. compactum, and that 
such designation also would not be beneficial to the taxon. In the 
final listing rule (63 FR 49019) we stated:
    (1) Trichostema austromontanum ssp. compactum occurs only in a 
wilderness area on State [CDPR] lands with little potential for Federal 
involvement. Trails, signage, map notations, and references to the 
habitat area have been removed by the State to reduce impacts to this 
highly localized taxon;
    (2) Designation of critical habitat would have little benefit to 
this taxon and would not increase the commitment or management efforts 
of the State; and
    (3) Designation of critical habitat likely would be detrimental to 
this taxon because publishing maps and descriptions of the exact 
locality identifies the site as a unique area. Such a distinction may 
encourage recreational use of the area and negatively impact the taxon.
    Pursuant to the Court's April 14, 2005, stipulated settlement 
agreement and order, and as announced in our September 26, 2006, 
proposed not-prudent determination (71 FR 56094), we have withdrawn our 
previous not-prudent determination. Consistent with the requirements of 
the Act and our aforementioned settlement agreement and order, we are 
now finalizing our new determination of not prudent for Trichostema 
austromontanum ssp. compactum. The determination involves a weighing of 
the expected increase in threats associated with a critical habitat 
designation against the benefits gained by a critical habitat 
designation. An explanation of this ``balancing'' evaluation follows.
    We listed Trichostema austromontanum ssp. compactum under the Act 
on the basis of threats of trampling associated with recreational 
activities and low numbers of individual plants. Before the CDPR took 
steps to minimize the visibility of the sensitive habitat that supports 
T. a. ssp. compactum, there was a clearly marked trail to the location. 
The area was used for many different types of recreational uses. These 
activities impacted the sensitive vegetation in the area by trampling 
live plants and creating multiple footprints in the wet soil around the 
margin of the vernal pool, further impacting habitat through soil 
compaction and alteration of hydrology (Hamilton 1983, pp. 75-88; 63 FR 
49006). Since listing, the CDPR has continued to implement management 
actions designed to reduce visitation to this area. It has removed 
reference to the area from its trail maps and signs, and removed all 
markers for trails to this area in order to reduce recreational use. 
Although the only known location was publicly available in the past, 
the currently available location information is limited and unlikely to 
be sought out by the general public. In contrast, the public notice 
requirements of the Act, including publication of precise site location 
information and a map in the Federal Register and the publicity that 
accompanies the publication of a critical habitat rule, are intended to 
make information readily accessible to the general public in a form 
that is easy to understand.
    The CDPR has continued its efforts to address the threats from 
trampling by further excluding recreational users from the area. In 
2000, CDPR erected a barrier on the trail to the area to exclude horses 
and pack animals from this sensitive area. In 2002, they designated the 
vernal pool and the surrounding area as a Natural Preserve (CDPR 2002 
p. 62). A Natural Preserve is a State designation that prioritizes 
resource protection within the area over recreational use and, 
therefore, measures can be taken to ensure the long-term survival of 
Trichostema austromontanum ssp. compactum. Recent visits to the site by 
the Service suggest that there has been a decrease in equestrian use of 
the area as a result of the barrier installed along the trail (Snapp-
Cook 2006; Wallace 2003, 2005).
    As part of the process of determining the prudency of designating 
critical habitat for Trichostema austromontanum ssp. compactum, we met 
with CDPR to discuss management activities now being conducted for this 
taxon. Ongoing and past actions that CDPR has initiated, partially due 
to the listing of this taxon, appear to be adequate to protect and 
maintain the plant's habitat. On a 2006 field visit to the site, we 
only found minimal signs of human use at the vernal pool, reflected in 
a worn trail passing the upper boundary of the vernal pool. However, we 
did not see evidence of more damaging activities such as trash or fire 
pits that would be associated with camping, nor hoof prints or horse 
manure that would be associated with equestrian use (Snapp-Cook 2006). 
This observation contrasted with the condition of the site prior to the 
CDPR implementing management actions for this plant and the condition 
of the site described at the time of listing (Hamilton 1983; 63 FR 
49006). We were able to observe T. a. ssp. compactum around the margins 
of the vernal pool and none of the plants showed any signs of damage 
from trampling on that particular site visit.
    To support the effectiveness of the management measures that CDPR 
has put in place, a formal study to monitor the recreation use of the 
area is needed. The Service has recently helped the State of California 
secure funding to conduct a study to determine the condition of the 
population and the effectiveness of the management by CDPR. Funding has 
also been secured to survey and sign the legal boundaries of the 
established Natural Preserve so the regulations of the Natural Preserve 
can be enforced. In addition, a seed banking program that includes 
collection of seeds, a conservation strategy, and a monitoring program 
will be established. Through this funding, we are committed to work 
with CDPR, California Department of Fish and Game, California Native 
Plant Society and Rancho Santa Ana Botanic Garden to establish a long-
term conservation strategy for Trichostema austromontanum ssp. 
compactum. These conservation actions were previously recommended in a 
research project that focused on T. a. ssp. compactum (Bauder 1999, p. 
38), and should provide additional protection and help conserve this 
taxon.

[[Page 54382]]

    While the primary threat to Trichostema austromontanum ssp. 
compactum--trampling--appears to have been minimized, little 
information exists on the status of the taxon. To obtain all available 
information on this taxon, we initiated a 5-year status review in 
accordance with section 4 of the Act. We published a notice announcing 
the initiation of this 5-year review and the opening of the first 60-
day comment period in the Federal Register on July 7, 2005 (70 FR 
39327). We published another notice reopening the comment period for an 
additional 60 days in the Federal Register on November 3, 2005 (70 FR 
66842). As part of our review, we evaluated the federally listed status 
of this taxon based on the threats to the plant and its habitat, and 
recommended that no change be made to the listing status until a few 
specific conservation actions under way by the CDPR have been 
concluded. The completed 5-year review for this taxon is available upon 
request from the Field Supervisor, Carlsbad Fish and Wildlife Office 
(see ADDRESSES section) or for downloading from the following Web site: 
http://www.fws.gov/carlsbad.

Increased Threat to the Taxon by Designating Critical Habitat

    The process of designating critical habitat can be expected to 
increase human threats to Trichostema austromontanum ssp. compactum by 
increasing the visibility of this plant and its location. Along with 
maps published in the Federal Register, a critical habitat designation 
generally results in the news media publishing articles in local 
newspapers and/or special interest Web sites, usually with maps of the 
critical habitat and photos of the rare species. This type of publicity 
could generate increased interest in the species by both the public and 
the scientific community. In this particular case, T. a. ssp. compactum 
occurs within a State Park with a high rate of visitation. We are 
concerned that the publication of maps outlining the only location of 
this rare taxon will result in increased visitation to the area.
    Trichostema austromontanum ssp. compactum is small and hard to see 
because it blends in with other short herbaceous plants on the ground. 
Careful and detailed training is needed to identify this taxon. It is 
likely that people visiting the critical habitat would not find the 
plant and, in the act of looking for it, disturb its sensitive habitat. 
In addition, because this area has been designated as a Natural 
Preserve and CDPR manages the area to minimize recreational use, no 
signed trails or observation areas are in place that could allow for 
interested persons to observe the plant from a non-intrusive location. 
Thus, even well-meaning and informed visitors may cause significant 
damage by inadvertently trampling these tiny plants and adversely 
affecting the habitat.
    The District Superintendent of the Inland Empire District of 
California State Parks has expressed concern to the Service that the 
critical habitat designation process may place this plant at increased 
risk via increased visitation (Watts 2006). Our publication of a 
critical habitat map identifying the location and subsequent publicity 
of this action would be counter to conservation actions taken by CDPR 
to make the area less visible. Prior to these actions to minimize 
recreational impacts to this taxon, it was apparent that the plant was 
in danger of going extinct as a consequence of impacts associated with 
visitation to the areas and recreational use of the taxon's habitat. 
The small size and delicate structure of this plant make it especially 
vulnerable to trampling by people and animals (Lewis 1945, pp. 284-386; 
Hamilton 1996). Adverse impacts to this taxon associated with 
visitation to the area and recreational use of this taxon's habitat led 
to the listing of Trichostema austromontanum ssp. compactum. The 
actions undertaken by CDPR once these concerns were evident began to 
reverse the negative impacts to the taxon from recreational activities. 
Following the listing of this plant, CDPR continued to provide measures 
that were designed to recover it. These actions primarily consisted of 
removing the location of the taxon's habitat from information available 
to the public at this State Park. It is important that these and 
further conservation efforts continue so that this taxon no longer 
requires the protections afforded it under the Act. We believe that 
identification of critical habitat for this taxon would again provide 
specific information to the public about the taxon's location, 
undermining the conservation efforts and progress achieved by CDPR, and 
can be expected to increase the degree of threat to this plant from 
human activity.
    In addition to increasing threats to this taxon and countering past 
and ongoing conservation actions by the State of California, 
designating critical habitat for this plant would not support our 
ongoing partnership with CDPR. Most federally listed species in the 
United States will not recover without the cooperation of non-Federal 
landowners. Stein et al. (1995, p. 400) found that only about 12 
percent of listed species were found almost exclusively on Federal 
lands (i.e., 90 to 100 percent of their known occurrences restricted to 
Federal lands) and that 50 percent of federally listed species are not 
known to occur on Federal lands at all. Given the distribution of 
listed species with respect to land ownership, conservation of listed 
species in many parts of the United States is dependent upon working 
partnerships with a wide variety of entities and the voluntary 
cooperation of many non-Federal landowners (Wilcove and Chen 1998, p. 
1407; Crouse et al. 2002, p. 720; James 2002, p. 271). Building 
partnerships and promoting voluntary cooperation of landowners are 
essential to understanding the status of species on non-Federal lands 
and are necessary to implement recovery actions such as reintroducing 
listed species, habitat restoration, and habitat protection. Therefore, 
to achieve the conservation of Trichostema austromontanum ssp. 
compactum, it is necessary to maintain our partnership with CDPR, and 
to support CDPR's conservation efforts, including the efforts to 
minimize the availability of information regarding the plant's 
location.

Benefits to the Species From Critical Habitat Designation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Decisions 
by the 5th and 9th Circuit Court of Appeals have invalidated our 
definition of ``destruction or adverse modification'' (50 CFR 402.02) 
(see Gifford Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 
F. 3d 1059 (9th Cir. 2004) and Sierra Club v. U.S. Fish and Wildlife 
Service et al., 245 F.3d 434, 442F (5th Cir. 2001)), and we do not rely 
on this regulatory definition when analyzing whether an action is 
likely to destroy or adversely modify critical habitat. Under the 
statutory provisions of the Act, we determine destruction or adverse 
modification on the basis of whether, with implementation of the 
proposed Federal action, the affected critical habitat would remain 
functional (or retain the current ability for the PCEs to be 
functionally established) to serve its intended conservation role for 
the species.
    The regulatory effect is significantly limited in this case. First, 
it only applies where there is a Federal nexus--if there is no Federal 
nexus, designation itself does not restrict actions that destroy or 
adversely modify critical habitat.

[[Page 54383]]

Second, it only limits destruction or adverse modification of critical 
habitat. By its nature, the prohibition on adverse modification is 
designed to ensure those areas that contain the physical and biological 
features essential to the conservation of the species or unoccupied 
areas that are essential to the conservation of the species are not 
eroded. Critical habitat designation alone, however, does not require 
specific steps toward recovery.
    In regard to the question of a Federal nexus, we are not aware of 
any proposed projects (with or without a Federal nexus) that would 
negatively impact Trichostema austromontanum ssp. compactum and its 
habitat, nor are any projects expected (see Response to Comment 4 
above). The San Jacinto Mountains have been botanically explored for 
more than 100 years and only one population of this taxon has been 
found. Because of its association with vernal pool margins, other areas 
of suitable habitat likely do not exist in this mountain range. The 
Mount San Jacinto State Park Wilderness is protected from uses that 
would degrade or destroy natural resources. The specific area where 
this plant is found is designated by the State of California as a 
Natural Preserve, which means that protection and management of 
sensitive resources is the highest priority for this area. It is 
unlikely that a future project with a Federal nexus will occur within 
the habitat for this taxon because the habitat is within a Natural 
Preserve in a State Park, and no changes in land-use are planned for 
the foreseeable future. In fact, the Service has not engaged in any 
section 7 consultations for T. a. ssp. compactum since its listing in 
1998.
    However, if a federally funded or authorized project with potential 
to impact this taxon or its habitat did occur, a section 7 consultation 
would be required. We anticipate that any Federal project that involves 
grading, digging, or construction that would impact the watershed of 
the vernal pool where this plant occurs would trigger a section 7 
consultation because it would either directly or indirectly impact this 
taxon. Under section 7(a)(2) of the Act, project impacts would be 
analyzed and a determination would be made as to whether or not the 
project would jeopardize the continued existence of the taxon. The 
designation of critical habitat would ensure that a Federal project 
would not result in the destruction or adverse modification of the 
designated critical habitat. However, in the absence of critical 
habitat, areas that support Trichostema austromontanum ssp. compactum 
will continue to be subject to conservation actions implemented under 
section 7(a)(1) of the Act and to the regulatory protections afforded 
by the section 7(a)(2) jeopardy standard, as appropriate. Federally 
funded or permitted projects affecting listed species outside 
designated critical habitat areas may still result in jeopardy 
findings. In this case, we believe that impacts to the taxon and its 
habitat associated with any Federal project would be adequately 
assessed and modified, if necessary, to address the conservation needs 
of this plant through application of the jeopardy standard under 
section 7(a)(2) of the Act, particularly since this taxon occurs at a 
single location.
    Another potential benefit to Trichostema austromontanum ssp. 
compactum from designating critical habitat is that such a designation 
serves to educate landowners, State and local governments, and the 
public regarding the potential conservation value of an area. 
Generally, providing this information helps focus and promote 
conservation efforts by other parties by clearly delineating areas of 
high conservation value for the affected species. In this circumstance, 
the landowner (CDPR) is well aware of the areas important to T. a. ssp. 
compactum, and is actively implementing measures to conserve this 
taxon. Furthermore, designation of critical habitat for T. a. ssp. 
compactum will likely undermine the conservation efforts by CDPR and 
cause harm to T. a. ssp. compactum. The designation of critical habitat 
often generates increased interest in a species and inspires people to 
study the species and visit the habitat. As discussed above, T. a. ssp. 
compactum is small and blends in with other short herbaceous plants. 
Thus, someone attempting to learn more about this plant and its habitat 
by visiting the site without proper training is likely to harm members 
of the population in the process. Therefore, we do not find that there 
is any benefit to the taxon derived from educating landowners, State 
and local governments, and the public regarding the potential 
conservation value of areas that would be designated as critical 
habitat.

Increased Threat to the Species Outweighs the Benefits of Critical 
Habitat Designation

    Upon reviewing the available information, we have determined that 
the designation of critical habitat can be expected to increase the 
degree of threat from human activity to Trichostema austromontanum ssp. 
compactum, and that this expected increase in the degree of threat 
outweighs the benefits of designating critical habitat for this taxon. 
As discussed above, the designation of critical habitat may result in 
negative effects to the habitat because the dissemination of location 
information could be expected to result in increased trampling of the 
plant and its habitat. The unique area where the plant occurs was 
adversely impacted by a higher level of recreational use in the past. 
We believe that publication of specific locations and maps associated 
with a critical habitat designation for this taxon, with the attendant 
publicity that a designation would likely generate, can be expected to 
increase interest in the area where the taxon is found because of the 
interest that the public and scientific community have in rare, 
threatened, and endangered species, and in unique ecosystems. The 
sensitive nature of this taxon makes it vulnerable to even a slight 
increase in the amount of trampling. In a drought year, this species 
may have less than 100 flowering individuals and a limited amount of 
activity could damage the majority of the population. The CDPR has 
implemented measures to decrease visitation and thereby decrease 
impacts to the area occupied by T. a. ssp. compactum, and these 
measures have proven successful in reducing impacts. Designation of 
critical habitat will undermine the conservation actions that CDPR has 
already put into place for this taxon. The sensitive nature of this 
taxon makes it vulnerable to even a slight increase in the amount of 
trampling. In a drought year, this species may have less than 100 
flowering individuals and a limited amount of activity could damage the 
majority of the population. These ongoing conservation actions appear 
to have minimized the primary threat to this taxon and we believe that 
designation of critical habitat would reverse these efforts and 
increase the threat of trampling to this plant.
    Furthermore, we have determined that there is no overall benefit of 
critical habitat designation to T. a. ssp. compactum because: (1) The 
regulatory benefit of a critical habitat designation for this taxon is 
unlikely to be realized because we do not foresee any future projects 
(either federal or non-federal) that will negatively impact this taxon; 
(2) the general educational benefits afforded by critical habitat 
designation are minimal for this particular taxon; and (3) designation 
of critical habitat would undermine ongoing conservation efforts and 
hinder our partnership with CDPR. Therefore, based on our determination 
that critical habitat designation would increase the degree of threats 
to T. a. ssp. compactum and,

[[Page 54384]]

at best, provide nominal benefits for this taxon, we find that the 
increased threat to T. a. ssp. compactum from the designation of 
critical habitat far outweighs any benefit of designation.

Prudency Determination

    Pursuant to the Court's April 14, 2005, stipulated settlement 
agreement and order, and as announced in our proposed not-prudent 
determination (71 FR 56094), we have withdrawn our previous not-prudent 
determination. On the basis of our review of the best scientific and 
commercial information available, we again find that designation of 
critical habitat is not prudent for Trichostema austromontanum ssp. 
compactum. We came to this determination after weighing the potential 
increased threats associated with identifying specific areas as 
critical habitat against the benefits gained by a critical habitat 
designation. We have determined that the designation of critical 
habitat can be expected to increase the degree of threat to this taxon 
from human activity and would undermine the conservation actions that 
CDPR has already put into place for this taxon. These ongoing 
conservation actions appear to have minimized the primary threat to T. 
a. ssp. compactum, and as discussed above, we believe that designation 
of critical habitat may reverse these efforts and increase the threat 
of trampling to this taxon. Furthermore, we have determined that there 
are minimal benefits of critical habitat designation for T. a. ssp. 
compactum. We have concluded that, even if some benefit from 
designation may exist, the increased threat to the plant from human 
activity far outweighs any potential benefit to the taxon. We have, 
therefore, determined that it is not prudent to designate critical 
habitat for T. a. ssp. compactum at this time.

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

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

National Environmental Policy Act (NEPA) (42 U.S.C. 4321 et seq.)

    It is our position that, outside the Tenth Federal Circuit, we do 
not need to prepare environmental analyses as defined by the NEPA in 
connection with designating critical habitat under the Endangered 
Species Act of 1973, as amended. We published a notice outlining our 
reasons for this determination in the Federal Register on October 25, 
1983 (48 FR 49244). This assertion was upheld in the courts of the 
Ninth Circuit Court of Appeals (Douglas County v. Babbitt, 48 F.3d 1495 
(9th Cir. Ore. 1995), cert. denied 116 S. Ct. 698 (1996).]

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
``Government-to-Government Relations with Native American Tribal 
Governments'' (59 FR 22951), Executive Order 13175, and the Department 
of Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. Because we have determined 
that designation of critical habitat for Trichostema austromontanum 
ssp. compactum is not prudent, and because T. a. ssp. compactum and its 
habitat do not occur on Tribal lands, no Tribal lands will be affected 
by this determination.

References Cited

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

Author

    The primary author of this document is staff of the Carlsbad Fish 
and Wildlife Office (see ADDRESSES section).

Authority

    The authority for this action is the Endangered Species Act of 
1973, as amended (16 U.S.C. 1531 et seq.).

    Dated: September 14, 2007.
David M. Verhey,
Acting Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. E7-18678 Filed 9-24-07; 8:45 am]
BILLING CODE 4310-55-P