[Federal Register Volume 73, Number 30 (Wednesday, February 13, 2008)]
[Rules and Regulations]
[Pages 8412-8440]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-523]



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Part II





Department of the Interior





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Fish and Wildlife Service



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50 CFR Part 17



Endangered and Threatened Wildlife and Plants; Designation of Critical 
Habitat for Berberis nevinii (Nevin's barberry); Final Rule

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

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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

[FWS-R8-ES-2008-0011; 92210-1117-0000-B4]
RIN 1018-AU84


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Berberis nevinii (Nevin's barberry)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Final rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), are 
designating critical habitat for Berberis nevinii (Nevin's barberry) 
under the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 6 acres (ac) (3 hectares (ha)) in Riverside County, 
California, fall within the boundaries of the final critical habitat 
designation.

DATES: This rule becomes effective on March 14, 2008.

ADDRESSES: The final rule, final economic analysis, and map of critical 
habitat will be available on the Internet at http://www.regulations.gov 
and http://www.fws.gov/carlsbad/. Supporting documentation we used in 
preparing this final rule will be available for public inspection, by 
appointment, during normal business hours, at the U.S. Fish and 
Wildlife Service, Carlsbad Fish and Wildlife Office, 6010 Hidden Valley 
Road, Carlsbad, CA 92011; telephone 760-431-9440; facsimile 760-431-
5901.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, U.S. 
Fish and Wildlife Service, Carlsbad Fish and Wildlife Office, telephone 
760-431-9440 (see ADDRESSES section). If you use a telecommunications 
device for the deaf (TDD), call the Federal Information Relay Service 
(FIRS) at 800-877-8339.

SUPPLEMENTARY INFORMATION:

Background

    It is our intent to discuss only those topics directly relevant to 
the development and designation of critical habitat in this final rule. 
For additional information on the description, biology, and ecology of 
Berberis nevinii, refer to the final listing rule published in the 
Federal Register on October 13, 1998 (63 FR 54956), and the proposed 
critical habitat rule published in the Federal Register on February 6, 
2007 (72 FR 5552).

Species Description and Reproduction

    Berberis nevinii is a 3 to 13 foot (ft) (1 to 4 meter (m)) tall 
rhizomatous, evergreen shrub in the barberry family (Berberidaceae) 
that is endemic to southern California. In both the proposed critical 
habitat rule (72 FR 5552; February 6, 2007) and the final listing rule 
(63 FR 54956; October 13, 1998) for the species, we reported Berberis 
nevinii to be rhizomatous. Some members of the genus Berberis have 
underground stems (rhizomes) that give rise to aerial shoots. Some 
species have long slender-branched rhizomes while others, including B. 
nevinii, have short stout-branched rhizomes. Because aerial stems 
commonly arise in this manner, a single genetic individual may appear 
to be a dense or diffuse grouping of aerial stems of different age 
classes. As mentioned in the Primary Constituent Elements section of 
the proposed critical habitat rule, B. nevinii is not known to 
reproduce by vegetative means through the process of separation of 
rhizomes between groupings of aerial stems, as is the case with some 
other members of the genus Berberis (Mistretta and Brown 1989, p. 5; 
Boyd 2006, p. 1). According to White (2007, p. 1), the now-extirpated 
B. nevinii occurrence in San Timoteo Canyon was likely resprouting from 
a large basal burl, similar to what is seen in other chaparral shrub 
species. Generally, the term burl is reserved for those more condensed 
rounded woody structures that produce aerial stems (e.g., some 
Arctostaphylos (Manzanita) species) when plants are older or existing 
stems have sustained damage. Various authors have used either of these 
terms (burl or rounded woody structures) to refer to the underground 
portions of B. nevinii. We will continue to consider the basal 
structures that routinely produce new aerial stems as woody rhizomes. 
For a detailed description of B. nevinii, please refer to the proposed 
critical habitat designation published in the Federal Register on 
February 6, 2007 (72 FR 5552) and the final listing rule published in 
the Federal Register on October 13, 1998 (63 FR 54956).
    In the proposed critical habitat rule (72 FR 5552; February 6, 
2007), we discussed the relationship between Berberis nevinii's life 
history and wildfire in southern California chaparral (72 FR 5556, 
5560). Aerial stems of B. nevinii resprout following fire (Soza and 
Fraga 2003, p. 2; Mistretta and Brown 1989, p. 5; USFS 2005, p. 237). 
Because B. nevinii fruits appear to be adapted for dispersal by animals 
(most likely birds), the accumulation of a seed bank seems unlikely 
(White 2007, p. 1). Seed germination rates, even without special 
treatment, are high (Mistretta and Brown 1989, p. 5). These life 
history features appear to match Keeley's (1991, p. 107) description of 
the ``non-refractory seed'' (fire-resister) syndrome (White 2007, p. 
1). Shrubs with this life history strategy have seeds that do not 
require fire-associated cues for germination and generally recruit into 
chaparral in the absence of fire, potentially requiring long fire-free 
periods to do so (White 2007, p. 1). This appears to contradict 
California Department of Fish and Game's (CDFG) characterization of B. 
nevinii as a fire responsive species (CDFG 2005, p. 272). The specific 
response of B. nevinii to changes in the natural fire regime (fire 
frequency, intensity, or timing) may not be fully understood (63 FR 
54964, 54965). Fires that follow abnormally long fire-free periods 
likely have more severe impacts to the native occurrences because of 
accumulation of standing and downed fuel loads that may cause the fire 
to be more destructive and burn at higher temperatures. However, it is 
also likely that too-frequent fire could pose a threat to this species 
by killing mature, seeding adults and resprouting individuals prior to 
seed set or recovery from earlier fires, as well as young plants before 
they have reached reproductive age. Furthermore, too-frequent fire can 
lead to the conversion of native shrublands to weedy annual grasslands 
(D'Antonio and Vitousek 1992, pp. 74-75; White 2007, p. 1).

Species Distribution

    In general, Berberis nevinii has a limited natural distribution; it 
typically occurs in small stands (less than 20 individuals, and often 
only one or two) in scattered locations in Los Angeles, San Bernardino, 
and Riverside Counties, California, with the largest native occurrence 
(as defined by the California Natural Diversity Database (CNDDB)) 
consisting of several stands and totaling about 134 individuals to the 
south of Vail Lake in Riverside County (Boyd 1987; CNDDB 2007). B. 
nevinii typically occurs at elevations from 900 to 2,000 ft (300 to 650 
m) (63 FR 54956), but most native occurrences are between 1,400 and 
1,700 ft (427 to 518 m) in elevation (Boyd 1987, p. 2; CNDDB 2007). For 
a detailed discussion and summary of the distribution of B. nevinii, 
please refer to the proposed critical habitat designation published in 
the Federal Register on February 6, 2007 (72 FR 5552, please refer to 
pages 5554-5556).
    In the proposed critical habitat rule (72 FR 5552; February 6, 
2007), we inadvertently failed to mention an

[[Page 8413]]

occurrence of Berberis nevinii in Riverside, California, that was known 
at the time of listing but is not recorded in the CNDDB (CNDDB 2007). 
This occurrence consists of a single plant growing in a granite crevice 
on a low hill and is suspected to be of cultivated origin due to its 
isolation from known wild occurrences of B. nevinii (White 2001, p. 
36). As stated in the proposed rule, we do not believe that single 
plant occurrences, which do not exhibit any evidence of reproduction, 
are likely to contribute to recovery of this species and, therefore, 
are not essential to the conservation of this species. Furthermore, the 
conservation role of introduced populations is unknown. We did not 
propose to include any occurrences suspected to be of cultivated origin 
or any occurrences that supported a single plant. However, we will 
continue to explore the potential conservation value of naturalized 
occurrences and consider these occurrences in future recovery actions 
as appropriate.
    As stated in the proposed rule (72 FR 5552; February 6, 2007), 
potential habitat within the species' range has been extensively 
botanically explored or surveyed (Boyd 1987, p. 3), including potential 
habitat on the San Bernardino National Forest (SBNF) in 1988 and 1989, 
which yielded no new occurrences (Mistretta 1989, unpaginated; 72 FR 
5555). Since publication of the proposed rule, we were informed by the 
Cleveland National Forest (CNF) that surveys of potential habitat on 
the SBNF have been conducted since 1989, also with negative results. 
Recent discoveries of native occurrences of Berberis nevinii have been 
limited to individual plants or small stands (Boyd 1987, p. 3; Boyd and 
Banks 1995, unpaginated; Soza and Boyd 2000, p. 4), and additional 
survey efforts are unlikely to identify new large occurrences of this 
species.
    Suitable Berberis nevinii habitat may occur in Los Angeles and San 
Bernardino counties on or adjacent to the Angeles National Forest (ANF) 
in the Liebre Mountains and on the south slope of the San Gabriel 
Mountains (Soza and Boyd 2000, p. 4). Specifically in the San Gabriel 
Mountains, suitable habitat may occur in the foothills, from Pacoima 
Canyon and Lopez Canyon, both adjacent to the San Fernando Valley, and 
in canyons in the vicinity of San Antonio Wash near Claremont (Soza 
2003, based on expertise of Boyd, Rancho Santa Ana Botanic Garden). In 
San Bernardino County, there is potential for suitable habitat in the 
Crafton Hills area near Redlands off of National Forest lands and in 
Cajon Canyon (erroneously stated to be in the ANF in the proposed rule) 
on SBNF lands. In Riverside County, there is potential for suitable 
habitat:
    (1) On the west side of the San Jacinto Mountains in the vicinity 
of Bautista Canyon (Soza 2003, unpaginated; Holtrop 2007, p. 1), 
although surveys in these areas have failed to locate any plants to 
date (Holtrop 2007, p. 1);
    (2) In the area between Kolb Creek and Temecula Creek, south and 
east of Vail Lake (e.g., Temecula Creek drainage, the hills between 
Temecula Creek and Wilson Creek);
    (3) In the canyons draining Big Oak Mountain north of Vail Lake 
(Boyd et al. 1989, p. 16; Soza 2003, unpaginated); and
    (4) On the northern edge of the Agua Tibia Wilderness in the CNF 
straddling Riverside and San Diego counties (Boyd and Banks 1995, 
unpaginated; Reiser 2001, unpaginated; Soza 2003, unpaginated).

Previous Federal Actions

    As discussed in the proposed rule (72 FR 5552; February 6, 2007), 
the Service agreed, as part of a settlement agreement, to submit to the 
Federal Register a proposed rule to designate critical habitat, if 
prudent, on or before January 30, 2007, and a final rule by January 30, 
2008 (72 FR 5556, 5557). We also published a notice of availability 
(NOA) of the draft economic analysis (DEA) of the 2007 proposed rule in 
the Federal Register on October 17, 2007 (72 FR 58793). In this notice, 
we announced revisions to proposed critical habitat subunits 1B, 1D, 
and 1E. We revised these subunits based on information received during 
the first comment period, as well as data obtained during the 
development of the DEA (see Summary of Changes from Proposed Rule 
section below for a detailed discussion). This final rule satisfies the 
December 21, 2004, settlement agreement with respect to Berberis 
nevinii. For a discussion of additional previous Federal actions 
involving this species, please refer to the listing rule (63 FR 54956; 
October 13, 1998) or the proposed critical habitat rule (72 FR 5552; 
February 6, 2007).

Summary of Comments and Recommendations

    We requested comments from the public on the proposed designation 
of critical habitat for Berberis nevinii during two comment periods. 
The first comment period opened on February 6, 2007, the date of 
publication of the proposed rule (72 FR 5552), and closed on April 9, 
2007. We did not receive any requests for a public hearing during this 
comment period. We also requested comments on the proposed rule and DEA 
during a comment period that opened on October 17, 2007 and closed on 
November 16, 2007 (72 FR 58793). We contacted appropriate Federal, 
State, and local agencies; scientific organizations; and other 
interested parties and invited them to comment on the proposed rule and 
DEA during these two comment periods.
    During the first comment period, we received five comments directly 
addressing the proposed critical habitat designation: one from a peer 
reviewer, one from a Federal agency, one from a local agency, and two 
from organizations or individuals. During the second comment period, we 
received no comment letters on the proposed critical habitat 
designation or DEA. We reviewed all comments received during both 
comment periods for substantive issues and new information regarding 
the designation of critical habitat for Berberis nevinii, addressed 
them in the following summary, and incorporated them into the final 
rule as appropriate.

Peer Review

    In accordance with our policy published on July 1, 1994 (59 FR 
34270), we solicited expert opinions from four knowledgeable 
individuals with scientific expertise that included familiarity with 
the species, the geographic region in which the species occurs, and 
conservation biology principles. We received a response from one of the 
four peer reviewers from which we requested comments.

Peer Reviewer Comments

    (1) Comment: After review of personal files, the peer reviewer 
concurred with our description of the occurrences of Berberis nevinii 
described in the proposed rule and was not aware of any occurrences 
outside of the areas described in the proposed rule. However, the 
reviewer recommended that the Service review the most current CNDDB and 
Consortium of California Herbaria records to identify any additional 
occurrences of B. nevinii before publishing the final rule.
    Our Response: For the proposed rule, we based our understanding of 
the current distribution of Berberis nevinii on the most current 
occurrence records in the CNDDB (2006), and utilized the Consortium of 
California Herbaria records for information on specific occurrences. 
Since publication of the proposed rule, we conducted another search of 
the CNDDB database and Consortium records. No new occurrence records 
were found from either source. Two separate occurrences, likely

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introduced, were found in Griffith Park in the Hollywood Hills of Los 
Angeles County. One was documented with a herbarium specimen 
(Consortium of California Herbaria, Berberis nevinii, Soza et al. 1060, 
RSA 679741). Based on our review of these information sources and the 
fact that the only additional occurrence information received during 
the first comment period from this peer reviewer was in reference to a 
single, isolated individual likely of cultivated origin, we believe 
that we based the proposed and this final designation on the best 
available information.
    (2) Comment: The peer reviewer commented that he was unable to 
critically review the proposed exclusion of critical habitat covered 
under the Western Riverside County Multiple Species Habitat 
Conservation Plan (MSHCP), but suggested that the Service review his 
extensive peer review comments provided on November 3, 2004, on the 
proposed exclusion of critical habitat for Atriplex coronata var. 
notatior (San Jacinto Valley crownscale) (69 FR 59844; October 6, 2004) 
covered under the MSHCP.
    Our Response: The content and scope of the reviewer's comments 
provided on November 4, 2004, related to the Western Riverside County 
MSHCP also are considered applicable to the proposed critical habitat 
designation for Berberis nevinii. Per the reviewer's recommendation, we 
addressed the specified remarks incorporated by reference in the 
submitted peer review regarding the exclusion of critical habitat for 
Atriplex coronata var. notatior covered under the MSHCP. These comments 
included assertions that: (1) It is important to include a clear, 
detailed explanation of the MSHCP, its associated Implementing 
Agreement, the Service's formal section 7 consultation for the MSHCP, 
and the Service's responsibilities and authority under the MSHCP as 
they relate to covered species in the final rule; (2) the Service 
failed to provide an adequate basis for the exclusion of lands from the 
critical habitat designation and that our decision to do so based on 
the MSHCP's ability to protect the taxon's habitat was not adequately 
supported; and (3) the rule should include further explanation of how 
the designation of critical habitat for B. nevinii may impede 
cooperative conservation efforts, such as those implemented by the 
MSHCP.
    In response to the peer reviewer's concerns regarding the MSHCP and 
its associated documents, we have added information to our discussion 
of the exclusion of areas occupied by Berberis nevinii covered by the 
Western Riverside County MSHCP in this final rule, including a detailed 
explanation of the MSHCP and its ability to protect the taxon's habitat 
and the Service's responsibilities and authority under the MSHCP as 
they relate to covered species (see Relationship of Critical Habitat to 
Habitat Conservation Plan Lands--Exclusions Under Section 4(b)(2) of 
the Act section below). Also, since the October 6, 2004, proposed 
critical habitat designation for Atriplex coronata var. notatior (69 FR 
59844), we have revised our discussion of the benefits of including 
lands in critical habitat (see Benefits of Designating Critical Habitat 
section below) to include a discussion of how designation of critical 
habitat may impede cooperative conservation efforts (see Conservation 
Partnerships on Non-Federal Lands section below for a detailed 
discussion).
    (3) Comment: The peer reviewer noted that the map of proposed 
critical habitat in the proposed rule did not indicate which lands were 
proposed for exclusion and did not indicate land ownership, and 
suggested including this information on the map in the final rule.
    Our Response: While we did not include a map in the proposed rule 
identifying the location of areas that were proposed for exclusion, a 
map containing such information was available on our Web site (http://www.fws.gov/carlsbad) during both public comment periods. We appreciate 
the peer reviewer's suggestion, and will consider including maps 
identifying areas proposed for exclusion in future proposed critical 
habitat rules. It is our practice to only publish maps of designated 
critical habitat in final rules.
    (4) Comment: The peer reviewer commented that the proposed rule 
incorrectly identifies the location of CNDDB Element Occurrence 10 as 
``Big Tejunga Wash'' instead of ``Big Tujunga Wash.''
    Our Response: We appreciate the correction to the misspelling of 
this location in the proposed rule. We made the correction in the 
October 17, 2007, notice of availability for the DEA (72 FR 58793) 
(please see the Public Comments Solicited section of that notice).
    (5) Comment: The peer reviewer provided additional information and 
clarification on Berberis nevinii life history, including reproductive 
strategy (resprouting, seed banks, seedling recruitment) and its 
response to wildfire and overly frequent fire. The reviewer further 
commented that B. nevinii is probably not rhizomatous, as described in 
the final listing rule and the proposed critical habitat rule, and that 
the reported vegetative reproduction in San Timoteo Canyon is probably 
from resprouting from a large basal burl, as is often seen in other 
chaparral shrubs. The reviewer also provided the Service with updated 
information on B. nevinii in the form of a species account (prepared by 
the reviewer and dated March 2001) for the Bureau of Land Management's 
(BLM) planned section 7 consultation with the Service on its revision 
of the South Coast Resource Management Plan.
    Our Response: We appreciate the additional information and 
clarifications on Berberis nevinii's life history, status and 
distribution, and response to wildfire. We have included this 
information in this final rule (please see Background and Primary 
Constituent Elements sections). The Service considers the reviewer's 
use of the term ``burl'' inappropriate in describing the short 
rhizomatous structures found in B. nevinii. However, the Service 
concedes that often both these terms have been used to describe this 
species. The short-branched woody rhizomes that almost always annually 
give rise to new aerial stems in this species are unlike the 
essentially unbranched rounded burls commonly associated with 
Arctostaphylos (Manzanita) and other chaparral taxa. Burls normally 
produce new aerial stems from among the myriad of dormant surface buds 
only when the existing stems are damaged or of considerable age.

Public Comments

Comments Related to the Western Riverside County MSHCP
    (6) Comment: One commenter stated strong support for the 
designation of critical habitat for Berberis nevinii, but expressed 
concern about the proposed exclusion of over 92 percent of occupied 
habitat under the Western Riverside County MSHCP, including the area 
with the largest known occurrence of the species. The commenter 
questioned the ability of the ``untested'' Western Riverside County 
MSHCP to prevent extinction of this species or provide for its 
conservation and recovery due to: (1) Uncertain funding mechanisms; (2) 
understaffing in agencies involved with implementing the plan; (3) the 
complexity of the plan; and (4) the intense development pressure within 
the area covered by the plan. The commenter stated that designating 
critical habitat in this area would provide a safety net to protect 
this endangered plant based on the consultation requirements under 
section 7 of the Act. Another commenter expressed concern that the 
exclusion of lands within the boundaries of the

[[Page 8415]]

MSHCP would not leave enough land within the critical habitat 
designation for B. nevinii to thrive.
    Our Response: As discussed in the proposed rule and in this final 
rule, we have determined that the physical and biological features 
essential to the conservation of Berberis nevinii will be adequately 
protected by the Western Riverside County MSHCP and that the exclusion 
of lands covered by this regional plan will not jeopardize the 
continued existence of the species. The conservation objectives in the 
MSHCP for B. nevinii include: (1) Conservation and management of at 
least 8,000 ac (3,238 ha) of suitable habitat, including all known 
locations for this species in the Vail Lake area; (2) implementation of 
specific management and monitoring practices to help ensure the 
conservation of B. nevinii in the MSHCP Conservation Area; (3) 
maintenance of the physical and ecological characteristics of occupied 
habitat; and (4) surveys and other required procedures to ensure 
avoidance of impacts to at least 90 percent of suitable habitat 
determined important to the long-term conservation of B. nevinii (see 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion of the MSHCP). The conservation and management of B. nevinii 
habitat as described in the Western Riverside County MSHCP will remove 
or reduce known threats to B. nevinii and its habitat, providing for 
the survival and recovery of this species.
    We consider the regulatory (or consultation) benefit of critical 
habitat on these private lands to be low, as these lands may not have a 
Federal nexus under which to initiate consultation. Furthermore, any 
measures taken on private lands to minimize effects to a plant species 
or its habitat are completely voluntary. Under the Implementing 
Agreement of the Western Riverside County MSHCP, mandatory conservation 
measures provide for conservation of B. nevinii and its habitat. The 
MSHCP addresses conservation from a coordinated, integrated perspective 
rather than a piecemeal, project-by-project approach as would be 
achieved through multiple site-by-site, section 7 consultations 
involving critical habitat. Therefore, the Western Riverside County 
MSHCP provides a conservation benefit to B. nevinii and the physical 
and biological features essential to its conservation above the 
regulatory requirements associated with the designation of critical 
habitat.
    The exclusion of critical habitat does not dismiss or lessen the 
value of the Vail Lake and Oak Mountain areas to the overall 
conservation of this species. Rather, we believe that the judicious 
exclusion of specific areas of non-Federal lands from critical habitat 
designations, where we have developed close partnerships with non-
Federal land owners that have resulted in the development of HCPs or 
other voluntary conservation plans, can contribute to species recovery 
and provide a superior level of conservation than the designation of 
critical habitat alone. As described in detail in the Relationship of 
Critical Habitat to Habitat Conservation Plan Lands--Exclusions Under 
Section 4(b)(2) of the Act section below, we have determined that the 
benefits of excluding areas within the Western Riverside County MSHCP 
(Subunits 1C, 1D, 1E, and 1F) outweigh the benefits of designating 
these lands, and that this exclusion will not result in the extinction 
of B. nevinii. Furthermore, we expect that this species will be 
conserved and recovered on MSHCP lands and do not believe that the 
plant will become restricted solely to designated lands as suggested by 
one commenter.
    (7) Comment: One commenter supported the proposed exclusion of 
private lands within the boundaries of the Western Riverside County 
MSHCP plan area from the designation of final critical habitat because 
the MSHCP adequately provides for the survival and recovery of the 
species. However, this commenter expressed concern about language in 
the proposed rule that states that this area will be included in the 
final designation of critical habitat if the Secretary determines that 
the benefits of including these lands outweigh the benefits of 
excluding them. They further stated that under the provisions of the 
MSHCP and the associated Implementing Agreement, no critical habitat 
for Berberis nevinii should be designated in the MSHCP plan area.
    Our Response: We have determined that private lands within the 
boundaries of the Western Riverside County MSHCP contain the physical 
and biological features essential to the conservation of Berberis 
nevinii, and meet the definition of critical habitat (see Criteria Used 
to Identify Critical Habitat section below). However, we have also 
determined that the benefits of excluding these private lands covered 
by the Western Riverside County MSHCP outweigh the benefits of 
designating critical habitat in these areas, and that this exclusion 
will not result in the extinction of B. nevinii; therefore, we have 
excluded all private lands from this final designation (see 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a 
detailed discussion). In the proposed rule, we provided an analysis of 
the proposed exclusion to allow the public to comment and provide 
additional information to be considered in our final exclusion 
analysis. We have considered all information provided during both 
comment periods in finalizing this exclusion.
Comments Related to Criteria Used To Identify Critical Habitat
    (8) Comment: We received a comment that critical habitat should at 
a minimum include all known remaining occurrences of the species, 
including those with a low number of individuals (less than two) or low 
reproductive activity.
    Our Response: The Act defines critical habitat as the specific 
areas within the geographical area occupied by the species at the time 
it is listed on which are found those physical and biological features 
(I) essential to the conservation of the species and (II) which may 
require special management considerations or protection, and specific 
areas outside the geographical area occupied by the species at the time 
it is listed upon a determination by the Secretary that such areas are 
essential for the conservation of the species. We believe that our 
proposed and final designations accurately describe all specific areas 
meeting the definition of critical habitat for Berberis nevinii.
    As discussed in the Criteria Used to Identify Critical Habitat 
section of the proposed rule and this final rule, we delineated 
proposed critical habitat for Berberis nevinii using the following 
criteria: (1) Areas occupied by naturally occurring individuals at the 
time of listing and areas that are currently occupied by naturally 
occurring individuals; (2) occupied areas within the historical range 
of the species; (3) areas containing one or more of the primary 
constituent elements (PCEs) for this species; and (4) areas currently 
occupied by more than two B. nevinii plants that show evidence of 
reproduction (i.e., fruits with seed, seedlings, or plants of various 
size/age classes) on site. Application of these criteria captures the 
physical and biological features that are essential to the conservation 
of this species, identified as the species' PCEs laid out in the 
appropriate quantity and spatial arrangement. Thus, not all areas 
supporting the identified PCEs will meet the definition of critical 
habitat.

[[Page 8416]]

    We recognize that our designation of critical habitat for Berberis 
nevinii does not encompass all known occurrences of this species as 
noted by the commenter. As discussed in the proposed rule, for sites 
where no information is available on reproduction or size/age class 
distribution, we assumed that reproduction had occurred at some point 
in the past if multiple B. nevinii plants were present. We also gave 
consideration to the ecological uniqueness of sites. Sites meeting 
these criteria were included in the proposed designation.
    We did not include sites with only one individual or sites with 
only two individuals of the same size/age class because this condition 
may reflect a lack of successful reproduction and therefore the long-
term viability of these occurrences is questionable. As discussed in 
the proposed critical habitat rule, many Berberis nevinii occurrences 
consist of very few individuals, and sometimes consist of only one or 
two large (presumably old) shrubs that have persisted on a site for 
many decades without evidence of reproducing. Because of the lack of 
evidence of reproduction for these small occurrences, and the low 
reproductive output of mature plants and limited numbers of surviving 
juvenile plants in general, we do not consider sites with only one 
plant or two plants of the same size/age class to represent an 
occurrence that exhibits a measurable degree of reproductive success 
that is likely to contribute to the recovery of the species.
    As explained in the Primary Constituent Elements section of this 
final rule, a self-incompatible pollination system has been suggested 
(White 2001, p. 36). Additionally, Berberis nevinii does not appear to 
reproduce by vegetative means (Mistretta and Brown 1989, p. 5; Boyd 
2006), as is the case with some other members of the genus Berberis. 
Therefore, pollen transfers from plants in different occurrences are 
likely necessary for reproduction to occur in sites supporting only one 
plant or two plants of the same size/age class. The habitat 
requirements and home ranges of potential pollinator species relative 
to native Berberis occurrences have not been determined; however, the 
lack of evidence of reproduction in these small B. nevinii occurrences 
suggests that pollination may not be occurring or another biological 
constraint is impacting the occurrences. The fact that reproduction has 
not been in evidence at these sites in several decades, if at all, 
suggests that they may not be viable occurrences over the long term. 
Whether or not these occurrences may contribute to recovery of the 
species is unknown at this time. We will continue to explore the 
potential conservation value of these small occurrences, and consider 
these occurrences in future recovery actions as appropriate.
    Additionally, we only considered areas occupied by naturally 
occurring individuals because we do not know the role that other 
occurrences (i.e., plants of cultivated origin or outplanted 
individuals originating from another part of the species' range that 
have subsequently naturalized to a new site) will play in the 
conservation of the species. Only about half of the known Berberis 
nevinii individuals found in the field are thought to be naturally 
occurring (CNDDB 2007; 63 FR 54958), with the vast majority of these in 
the vicinity of Vail Lake and Oak Mountain. As discussed in the 
proposed rule, B. nevinii is available in the nursery trade and has 
been planted at numerous sites throughout the species' range (Boyd 
1987, p. 2; Boyd and Banks 1995, unpaginated; Reiser 2001, 
unpaginated). We recognize that naturalized occurrences represent some 
of the largest (in terms of number of individuals) and most vigorously 
reproducing occurrences of the species, and could potentially play a 
role in preserving genetic diversity in B. nevinii. At least one 
naturalized occurrence (San Francisquito Canyon) may contain an 
individual or descendants of an individual that originated from a 
location where B. nevinii no longer occurs (i.e., the San Fernando 
Valley). Thus, we will continue to explore the potential conservation 
value of naturalized occurrences, and consider these occurrences in 
future recovery actions as appropriate.
    Although we are not designating all known occurrences of Berberis 
nevinii, we believe that our criteria, and therefore the designation, 
are adequate to ensure the conservation of this species throughout its 
extant range based on the best available information at this time.
    (9) Comment: One commenter stated that the proposed designation is 
flawed because it does not include unoccupied habitat for recovery, and 
that without including some suitable, but unoccupied, habitat (areas 
with one or more of the PCEs) in the critical habitat designation to 
allow Berberis nevinii to expand its range and promote recovery of the 
species, the Service will not be able to meet the Act's recovery goals 
and mandate.
    Our Response: We have identified areas within the geographical 
range of the species that were occupied at the time of listing, contain 
the physical and biological features essential to the conservation of 
the species, and may require special management considerations or 
protection. As described in the Background section, potential habitat 
within this species' range has been extensively botanically explored or 
surveyed (Boyd 1987, p. 3). Surveys throughout the SBNF and the CNF 
have not identified any new occurrences of this species. All recent 
discoveries of Berberis nevinii have been limited to individual plants 
or small stands (Boyd 1987, p. 3; Boyd and Banks 1995, unpaginated; 
Soza and Boyd 2000, p. 4) and additional survey efforts are unlikely to 
identify new large occurrences of this species. The long-term viability 
of single plant occurrences or small stands where there is no evidence 
of reproduction for many decades is questionable, and we do not believe 
that these areas will significantly contribute to the long-term 
recovery of this species. Furthermore, we do not have specific data 
concerning the habitat requirements or reproductive biology of this 
species to accurately predict any unoccupied areas where reintroduction 
would likely be successful. We designate critical habitat in areas 
outside the geographical area presently occupied by the species only 
when a designation limited to its present range would be inadequate to 
ensure the conservation of the species (50 CFR 424.12(e)). Accordingly, 
when the best scientific and commercial data do not demonstrate that 
the conservation needs of the species require designation of critical 
habitat outside of occupied areas, we will not designate critical 
habitat in areas outside the geographical area occupied by the species. 
Therefore, consistent with the Act and its implementing regulations, we 
are not designating any lands outside the area currently occupied by 
the species. We recognize that the designation of critical habitat may 
not include all of the habitat that may eventually be determined to be 
necessary for the recovery of the species and critical habitat 
designations do not signal that habitat outside the designation is 
unimportant or may not contribute to recovery.
Comments Related to Federal Lands
    (10) Comment: The CNF commented that there is one population of 
Berberis nevinii containing six individuals on approximately 7 ac (2.8 
ha) of land on the CNF. They further stated that the proposed critical 
habitat area mapped by the Service on the CNF (Subunit 1B) was 17 ac 
(6.8 ha), but according to CNF survey maps, these six individuals were

[[Page 8417]]

outside the critical habitat map for Subunit 1B as described and mapped 
in the February 6, 2007, proposed rule (72 FR 5552, pp. 5577, 5579).
    Our Response: We appreciate the correction and have since received 
updated locality data from the CNF for the Berberis nevinii occurrence 
on CNF lands. We verified that Subunit 1B as described and mapped in 
the February 6, 2007, proposed rule (72 FR 5552, pp. 5577, 5579) was 
inaccurate, and revised the boundaries of this subunit based on the new 
occurrence information provided by CNF. A revised description of 
Subunit 1B was published on October 17, 2007, concurrently with the 
notice of availability for the DEA (72 FR 58793). Based on follow-up 
communication with a CNF botanist (Young 2007) and a June 6, 2006, site 
visit by Service biologists (Wallace 2006a), we believe that there are 
only five individuals, not six, at this site. To the best of our 
knowledge, the final rule correctly describes the B. nevinii occurrence 
on the CNF.
    (11) Comment: The CNF provided the following changes or 
clarifications to information in the proposed rule: Cajon Canyon is 
within the SBNF, not the ANF; projects surveys after 1988 and 1989 were 
conducted in the SBNF for potential habitat and have also yielded 
negative results; potential habitat in the SBNF exists near the Crafton 
Hills area and on the west side of the San Jacinto Mountains in the 
vicinity of Bautista Canyon, although surveys have failed to locate any 
plants in these locations to date.
    Our Response: We appreciate the clarification on the location of 
Cajon Canyon and the information on survey efforts and potential 
habitat on the SBNF. We have revised the text of this final rule to 
include this new information (see Background section above).
    (12) Comment: The CNF commented that current laws, regulations, and 
policies, as well as the current land management plan direction on the 
CNF, are adequate to provide for the conservation of the Berberis 
nevinii occurrence and its habitat on the CNF. They further stated that 
they recently revised their Land Management Plan (LMP) to incorporate 
management direction that provides sufficient protection and management 
for B. nevinii and its habitat, and that the section 7 consultation on 
the revised LMP resulted in the issuance of a non-jeopardy biological 
opinion by the Service. Additionally, the Species Management Guide for 
B. nevinii (Mistretta and Brown 1989) developed for the ANF was 
formally adopted by the CNF in 1992 to direct management of this 
species on the CNF. They further commented that there has been no 
change in the status and survival potential of this occurrence since 
its discovery in 1993; the area's fire history is within the range of 
natural variation; and no development or fuel treatments are planned 
for this area of the CNF that would affect the species or its habitat. 
Furthermore, the CNF also commented that the designation of critical 
habitat on CNF lands would not provide any additional benefit to the 
conservation of the species or its habitat since all site-specific 
projects proposed by the CNF are subject to section 7(a)(2) 
consultation with the Service and that the designation would 
unnecessarily add to their analysis burden by requiring the CNF to make 
a determination of effect regarding critical habitat when consulting 
under section 7 of the Act.
    Our Response: We have determined that National Forest lands contain 
physical and biological features essential to the conservation of 
Berberis nevinii, and meet the definition of critical habitat (see 
Criteria Used to Identify Critical Habitat section below). We 
acknowledge that the revised LMP will benefit B. nevinii and its 
habitat. The LMP contains general provisions for species conservation 
and suggests specific management and conservation actions that will 
benefit this species and the physical and biological features essential 
to its conservation. Implementation of the LMP should address known 
threats to this species on National Forest lands. As stated above, we 
appreciate and commend the efforts of the United States Forest Service 
(USFS) to conserve federally listed species on their lands.
    The Secretary may exclude an area from critical habitat under 
section 4(b)(2) of the Act after taking into consideration the economic 
impact, the impact on national security, and any other relevant impact 
if he determines that the benefits of such exclusion outweigh the 
benefits of designating such area as critical habitat, unless he 
determines that the exclusion would result in the extinction of the 
species concerned. We have considered the request from the CNF that we 
exclude their lands because it would unnecessarily add work in the 
future to determine the effect regarding critical habitat for actions 
on their lands and the fact that they had already completed 
consultation under section 7(a)(2) of the Act on their revised LMP. 
Recognizing that the CNF already analyzes the impacts of its proposed 
activities on both this species and the habitat, we are unable to 
conclude that the benefits of exclusion would outweigh the benefits of 
inclusion in this particular instance.
    Under the Joint Counterpart Endangered Species Act Section 7 
Consultation Regulations published in the Federal Register on December 
8, 2003 (68 FR 68254), projects under the National Fire Plan that the 
USFS determines are ``not likely to adversely affect'' any listed 
species or designated critical habitat do not require any additional 
consultation with the Service. Projects within the scope of the 
National Fire Plan include projects such as prescribed fire, mechanical 
fuels treatments (thinning and removal of fuels to prescribed 
objectives), emergency stabilization, burned area rehabilitation, road 
maintenance and operation activities, ecosystem restoration, and 
culvert replacement actions. Therefore, projects such as restoration, 
revegetation, and removal of nonnative species conducted in support of 
the National Fire Plan that are not likely to adversely affect 
federally-listed species should not add to the USFS' workload or cost 
burden by requiring them to conduct a separate analysis and make a 
determination of effect on critical habitat when consulting under 
section 7 of the Act.
    Also, as part of our section 7 consultation with the USFS on the 
CNF's LMP, the USFS has already consulted on various activities carried 
out on National Forest lands including: roads and trail management; 
recreation management; special use permit administration; 
administrative infrastructure; fire and fuels management; livestock 
grazing and range management; minerals management; and law enforcement. 
In our 2005 biological opinion on the LMP, we determined that 
implementation of the plan was not likely to jeopardize the continued 
existence of B. nevinii. Since critical habitat has not been previously 
proposed or designated for this species, it is anticipated that the 
consultation with the USFS regarding their current LMP will be 
reinitiated. However, because the USFS has already consulted with us on 
potential impacts to this species related to the activities outlined in 
the LMP, the USFS can supplement its analysis for those activities 
already analyzed in the LMP with the additional analysis required for 
critical habitat areas. We do not believe that this additional analysis 
would place an undue burden on the USFS in this instance.
    In conclusion, we are designating National Forest lands that meet 
the definition of critical habitat for B. nevinii because we are unable 
to

[[Page 8418]]

conclude, based on the general assertions provided by the agency here, 
that the benefits of excluding these National Forest lands outweigh the 
benefits of their inclusion. We will, of course, continue to consider 
on a case-by-case basis in future critical habitat rules whether to 
exclude particular Federal lands from such designation when we 
determine that the benefits of such exclusion outweigh the benefits of 
their inclusion.
Comments Related to the Draft Economic Analysis (DEA)
    We did not receive any comments related to the DEA.
Comments From State Agencies
    We did not receive any comments from State agencies on this rule.

Summary of Changes from Proposed Rule

    In preparing the final critical habitat designation for Berberis 
nevinii, we reviewed and considered comments from the peer reviewer and 
the public on the proposed designation of critical habitat published on 
February 6, 2007 (72 FR 5552). In light of comments received on the 
proposed rule and information gathered for the DEA, we reevaluated the 
proposed critical habitat boundaries and published revisions to 
proposed critical habitat subunits 1B, 1D, and 1E concurrently with the 
notice of availability for the DEA (72 FR 58793; October 17, 2007). We 
did not receive any comments related to the DEA. This final rule 
differs from the proposed designation of critical habitat published on 
February 6, 2007 (72 FR 5552), as follows:
    (1) In the proposed rule, we based the critical habitat boundary 
descriptions on Universal Transverse Mercator (UTM) gridlines set every 
328 ft (100 m). These square grids were overlaid on occurrence polygons 
determined to be essential to the conservation of the species. Areas 
where the occurrence polygon intersected with a grid cell were 
retained. Although we used Geographic Information System (GIS) soil and 
vegetation data in an effort to ensure that the habitat within the grid 
cells containing the occurrence polygons had one or more of the PCEs, 
as well as aerial photography to remove areas that did not contain any 
of the PCEs, the use of UTM gridlines effectively created an artificial 
buffer around the resulting areas we determined to be essential to the 
conservation of the species. Therefore, in this final designation, we 
have refined the critical habitat boundaries by screen digitizing 
habitat polygons using ArcMap, a computer GIS program. Use of this 
methodology produced more precise boundaries for areas that we 
determined contained the physical and biological features essential to 
the conservation of Berberis nevinii. Areas outside of these boundaries 
were removed (see the Criteria Used to Identify Critical Habitat 
section for a detailed discussion). This method of delineation for 
critical habitat reduced the total area of habitat from approximately 
361 ac (146 ha) to 173 ac (70 ha). Total area in this final critical 
habitat rule is less than what was estimated in the notice of 
availability for the DEA (72 FR 58793; October 17, 2007) because the 
proposed critical habitat boundaries for subunits 1B, 1D, and 1E in the 
DEA were also produced using 100 m grids (see item (3) below). 
Therefore, the DEA and final economic analysis (FEA) likely 
overestimate the potential economic costs of this critical habitat 
designation because this reduction in area is not reflected in either 
the DEA or FEA.
    (2) We revised the location and boundaries of critical habitat 
Subunit 1B (Agua Tibia Mountain Foothills) on the CNF to reflect 
updated location information provided by the National Forest. Revised 
Subunit 1B is in a new location and encompasses approximately 1 ac (<1 
ha) of Federal land managed by the CNF, rather than a total of 22 ac (9 
ha)-17 ac (7 ha) of United States Forest Service (USFS) land and 5 ac 
(2 ha) of private land--as originally proposed. Accordingly, we have 
revised the subunit to reflect this new information (please refer to 
the Proposed Critical Habitat Designation section of this final rule).
    (3) We reevaluated areas previously determined to contain the 
physical and biological features essential to conservation of Berberis 
nevinii in subunits bordering Vail Lake. We removed areas that do not 
contain these essential features due to lake-level fluctuations and 
recurrent, episodic inundation that has lasted for relatively long 
periods of time. These revisions (as described in the October 17, 2007, 
notice of availability (72 FR 58793)), along with removing the 328 ft 
(100 m) grids as described in item (1) above that further refined these 
two subunits, reduced the area meeting the definition of critical 
habitat within proposed Subunit 1D (North of Vail Lake) from 22 ac (9 
ha) to 5 ac (2 ha) and the area meeting the definition of critical 
habitat within proposed Subunit 1E (South of Vail Lake/Peninsula) from 
251 ac (102 ha) to 112 ac (45 ha). We are excluding both subunits from 
this final designation under section 4(b)(2) of the Act (see the 
Relationship of Critical Habitat to Habitat Conservation Plans (HCPs)--
Exclusion Under Section 4(b)(2) of the Act section below for a detailed 
discussion).
    (4) We made technical corrections and clarifications to some of the 
information found in the following sections of the proposed rule: 
Background, Primary Constituent Elements, Special Management 
Considerations or Protection, Proposed Critical Habitat Designation, 
and Exclusions Under Section 4(b)(2) of the Act for Berberis nevinii. 
These changes include new information or clarifications on the 
distribution of B. nevinii; reproduction strategy and life history; 
threats to the species and its habitat, particularly as they relate to 
transportation projects and land development; updated descriptions of 
the critical habitat units as described above; and a more comprehensive 
description of the relationship of critical habitat to the approved 
Western Riverside County MSHCP and the exclusion of private lands 
covered by this plan.

Critical Habitat

    Critical habitat is defined in section 3 of the Act as:
    (i) The specific areas within the geographical area occupied by a 
species at the time it is listed in accordance with the Act, on which 
are found those physical or biological features
    (a) Essential to the conservation of the species and
    (b) Which may require special management considerations or 
protection; and
    (c) Specific areas outside the geographical area occupied by a 
species at the time it is listed, upon a determination that such areas 
are essential for the conservation of the species.
    Conservation, as defined under section 3 of the Act, means the use 
of all methods and procedures that are necessary to bring any 
endangered or threatened species to the point at which the measures 
provided under the Act are no longer necessary. Such methods and 
procedures include, but are not limited to, all activities associated 
with scientific resources management such as research, census, law 
enforcement, habitat acquisition and maintenance, propagation, live 
trapping, transplantation, and in the extraordinary case where 
population pressures within a given ecosystem cannot otherwise be 
relieved, may include regulated taking.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against Federal agencies

[[Page 8419]]

carrying out, funding, or authorizing the destruction or adverse 
modification of critical habitat. Section 7(a)(2) of the Act requires 
consultation on Federal actions that may affect critical habitat. The 
designation of critical habitat does not affect land ownership or 
establish a refuge, wilderness, reserve, preserve, or other 
conservation area. Such designation does not allow the government or 
public to access private lands. Such designation does not require 
implementation of restoration, recovery, or enhancement measures by 
private landowners. Where a landowner requests federal agency funding 
or authorization for an action that may affect a listed species or 
critical habitat, the consultation requirements of section 7(a)(2) 
would apply, but even in the event of a destruction or adverse 
modification finding, the landowner's obligation is not to restore or 
recover the species, but to implement reasonable and prudent 
alternatives to avoid destruction or adverse modification of critical 
habitat.
    For inclusion in a critical habitat designation, the habitat within 
the geographical area occupied by the species at the time of listing 
must contain the physical or biological features that are essential to 
the conservation of the species, and be included only if those features 
may require special management considerations or protection. Critical 
habitat designations identify, to the extent known using the best 
scientific data available, habitat areas that provide essential life 
cycle needs of the species (i.e., areas on which are found the PCEs 
laid out in the appropriate quantity and spatial arrangement for the 
conservation of the species). Under the Act, we can designate critical 
habitat in areas outside the geographical area occupied by the species 
at the time it is listed as critical habitat only when we determine 
that those areas are essential for the conservation of the species.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific and commercial data available. 
Further, our Policy on Information Standards Under the Endangered 
Species Act (published in the Federal Register on July 1, 1994 (59 FR 
34271)), the Information Quality Act (section 515 of the Treasury and 
General Government Appropriations Act for Fiscal Year 2001 (Pub. L. 
106-554; H.R. 5658)), and our associated Information Quality Guidelines 
provide criteria, establish procedures, and provide guidance to ensure 
that our decisions are based on the best scientific data available. 
They require our biologists, to the extent consistent with the Act and 
with the use of the best scientific data available, to use primary and 
original sources of information as the basis for recommendations to 
designate critical habitat.
    When we are determining which areas should be designated as 
critical habitat, our primary source of information is generally the 
information developed during the listing process for the species. 
Additional information sources may include the recovery plan for the 
species, articles in peer-reviewed journals, conservation plans 
developed by States and counties, scientific status surveys and 
studies, biological assessments, or other unpublished materials and 
expert opinion or personal knowledge.
    Habitat is often dynamic, and species may move from one area to 
another over time. Furthermore, we recognize that critical habitat 
designated at a particular point in time may not include all of the 
habitat areas that we may later determine are necessary for the 
recovery of the species. For these reasons, a critical habitat 
designation does not signal that habitat outside the designated area is 
unimportant or may not promote the recovery of the species.
    Areas that are important to the conservation of the species, but 
are outside the critical habitat designations, will continue to be 
subject to conservation actions that we and other Federal agencies 
implement under section 7(a)(1) of the Act. Areas that support 
populations are also subject to the regulatory protections afforded by 
the section 7(a)(2) jeopardy standard, as determined on the basis of 
the best available scientific information at the time of the agency 
action. Federally funded or permitted projects affecting listed species 
outside their designated critical habitat areas may still result in 
jeopardy findings in some cases. Similarly, critical habitat 
designations made on the basis of the best available information at the 
time of designation will not control the direction and substance of 
future recovery plans, habitat conservation plans (HCPs), or other 
species conservation planning efforts if information available at the 
time of these planning efforts calls for a different outcome.

Primary Constituent Elements (PCEs)

    In accordance with section 3(5)(A)(i) of the Act and the 
regulations at 50 CFR 424.12, in determining which areas within the 
geographical area occupied by the species at the time of listing to 
designate as critical habitat, we consider the physical or biological 
features essential to the conservation of the species that may require 
special management considerations or protection. We consider the 
physical or biological features to be the PCEs laid out in the 
appropriate quantity and spatial arrangement for the conservation of 
the species. The PCEs include, but are not limited to:
    (1) Space for individual and population growth and for normal 
behavior;
    (2) Food, water, air, light, minerals, or other nutritional or 
physiological requirements;
    (3) Cover or shelter;
    (4) Sites for breeding, reproduction, and rearing (or development) 
of offspring; and
    (5) Habitats that are protected from disturbance or are 
representative of the historic, geographical, and ecological 
distributions of a species.
    We derive the PCEs required for Berberis nevinii from its 
biological needs as described below and in the proposed critical 
habitat designation published in the Federal Register on February 6, 
2007 (72 FR 5552, pp. 5558-5561). Additional information can also be 
found in the final listing rule published in the Federal Register on 
October 13, 1998 (63 FR 54956).

Space for Growth and Reproduction

    Berberis nevinii has a limited natural distribution; it typically 
occurs in small stands (less than 20 individuals, and often only one or 
two) in scattered locations in Los Angeles, San Bernardino, and 
Riverside Counties, California, with the largest native occurrence (as 
defined by CNDDB) consisting of several stands and totaling about 134 
individuals to the south of Vail Lake in Riverside County (Boyd 1987; 
CNDDB 2007). Within these areas, B. nevinii requires appropriate soils, 
topography, cover, and drainage within the landscape to provide space, 
food, water, air, light, minerals, or other nutritional or 
physiological requirements for individual and population growth and 
reproduction.
    Characterizing Berberis nevinii habitat is difficult due to the 
varied soils, bedrock substrates, and topography on which this species 
naturally occurs. Additionally, this species is known to tolerate a 
wide range of environmental conditions in cultivation (Mistretta and 
Brown 1989, p. 6). Berberis nevinii typically occurs at elevations from 
900 to 2,000 ft (300 to 650 m) (63 FR 54956), but most native 
occurrences are between 1,400 and 1,700 ft (427 to 518 m) in elevation 
(Boyd 1987, p. 2; CNDDB 2007). One native occurrence on the Big Oak 
Mountain summit north of Vail Lake in Riverside County is at 
approximately 2,700 ft (823 m)

[[Page 8420]]

elevation, and scattered naturalized occurrences are found outside the 
900-to 2,000-foot (300- to 650-m) elevation range (Boyd 1987, pp. 42, 
75; CNDDB 2007). Berberis nevinii has been found in varied topography 
from nearly flat sandy washes, terraces, benches, and canyon floors to 
gravelly wash margins, steeply-sloped banks of drainages, steep rocky 
slopes, ridges, and mountain summits (CNDDB 2007).
    Based on 1987 field surveys, native Berberis nevinii occurring on 
slopes in Scott Canyon and south of Vail Lake were found in areas with 
slopes of 19 to 34 degrees (Boyd 1987, pp. 7, 45, 62, 65, 68). Other B. 
nevinii plants occurring on slopes in the Vail Lake and Oak Mountain 
area generally occupy slopes of less than 34 degrees, based on Service 
GIS data (2006). Introduced (i.e., nonnative) occurrences are known to 
grow on steeper slopes (e.g., 40 to 50 degrees) in San Francisquito 
Canyon (Boyd 1987, p. 7). Berberis nevinii generally occurs on north, 
northeast, or northwest-facing slopes; however, exceptions to this have 
been noted, including several occurrences, both native and naturalized, 
found on south and west-facing slopes (Boyd 1987, pp. 7, 40, 77; Boyd 
et al. 1989, p. 24; Soza and Boyd 2000, p. 22; CNDDB 2007).
    Berberis nevinii is found on a variety of soils and bedrock 
substrates. Native occurrences appear to be strongly associated with 
alluvial soils or soils derived from nonmarine sedimentary based 
substrates, especially sandy arkose (sandstone derived from granitic 
material) (Boyd 1987, p. 7; Boyd and Banks 1995, unpaginated; Soza and 
Boyd 2000, p. 25). Most of the plants at Vail Lake are found in small 
stands on Temecula arkose soils around the southern end of the lake, 
with scattered individuals in the ``badlands'' to the southeast and 
southwest (Boyd and Banks 1995, unpaginated). Several small, isolated 
stands on the south flank of Big Oak Mountain are associated with 
metasedimentary substrates and springs or seeps (Boyd et al. 1989, p. 
14; Soza 2003, unpaginated), and two plants at the Big Oak Mountain 
summit occur on heavy adobe or gabbro type soils with high water-
holding capacity formed from metavolcanic geology (Mesozoic basic 
intrusive rock) (Soza 2003, unpaginated). The CNF occurrence is found 
at the contact between sedimentary (arkose) and metasedimentary 
substrates (Boyd and Banks 1995, unpaginated). Berberis nevinii has 
also been found growing on Pelona schist outcrops and granitic knolls 
(Boyd 1987, p. 7; Soza and Boyd 2000, p. 22).
    Overlying occurrence polygons with Natural Resource Conservation 
Service soils data, native Berberis nevinii occurrences appear to be 
associated with the following soil series:
     Riverwash at the Lopez Canyon site in Los Angeles County;
     Sandy loam of the Saugus series in Scott Canyon and coarse 
sandy loam of the Metz series from the San Timoteo Canyon location in 
San Bernardino County; and
     At least 17 different soil series in the Vail Lake and Oak 
Mountain area in Riverside County, including Monserate sandy loams; 
Hanford coarse sandy loams; fine sandy loams of the Arlington and 
Greenfield, Pachappa, and Cajalco series; Cajalco rocky fine sandy 
loams; rocky loams of the Lodi and Las Posas series; and loams of the 
Las Posas, San Timoteo, and San Emigdio series (Service GIS data 2006).

Additional soil series found within mapped B. nevinii occurrences 
include gullied land and riverwash primarily south of Vail Lake, and 
badlands to the north and southeast of Vail Lake. Occurrences north of 
Vail Lake on the south slopes of Big Oak Mountain and its summit are 
mapped primarily as Auld clay, 8 to 15 percent slopes; Cajalco rocky 
fine sandy loam, 15 to 50 percent slopes, eroded; and Las Posas loam 
and rocky loam, 8 to 15 percent slopes, eroded. Based on the revised 
location information received during the public comment period, the B. 
nevinii site on the CNF south of Vail Lake is now mapped as rough 
broken land and Vasalia gravelly sand loam, with 5 to 9 percent slopes 
(Service GIS data 2007).
    Native occurrences of Berberis nevinii are generally found growing 
in well-drained soils, and are known from xeric slopes and rock 
outcrops. According to Lenz and Dourley (1981, as cited in Mistretta 
and Brown 1989, p. 5), B. nevinii is considered a drought-tolerant 
species, but it will also accept large amounts of water in cultivation 
without apparent damage. Observations of native occurrences suggest 
that, within its general habitat, B. nevinii may be associated with 
more mesic microhabitats. Niehaus (1977, p. 2) noted that B. nevinii 
occurs mostly at the margins of dry washes in or below the foothill 
zone, but is not present in the driest portion of a wash. At some 
sites, B. nevinii is associated with species such as Lepidospartum 
squamatum (scale-broom) and Prunus ilicifolia (holly-leaved cherry), 
which require groundwater (Niehaus 1977, p. 2). Many of the plants in 
the Vail Lake area are growing on mesic north- or northwest-facing 
slopes. Several stands are in canyons draining the south flank of Big 
Oak Mountain and are associated with springs or seepages (Boyd et al. 
1989, p. 14). The two plants on the summit of Big Oak Mountain are on 
clay soils with a high water-holding capacity. In the late spring and 
early summer, this site may receive greater moisture in the form of 
condensation from intrusion of marine air (Soza 2003, unpaginated). 
Information received by a peer reviewer of the proposed critical 
habitat rule appears to support this association with mesic 
microhabitats, as it was noted that recruitment of B. nevinii is 
typically into relatively mesic chaparral sites (White 2001, p. 36).
    Berberis nevinii occurs in association with the following plant 
communities: alluvial scrub, cismontane (e.g., chamise) chaparral, 
coastal sage scrub, oak woodland, and/or riparian scrub or woodland 
(Boyd 1987, pp. 2, 7; Boyd 1989, pp. 6-8; 63 FR 54958; CNPS 2001, p. 
96; CNDDB 2007). Native B. nevinii in Lopez Canyon, Scott Canyon, and 
San Timoteo Canyon, as well as many of those found in the Vail Lake and 
Oak Mountain area, occur within the California Wildlife Habitat 
Relationships (CWHR) landcover described as coastal scrub or mixed 
chaparral (Service GIS data 2006). Berberis nevinii is occasionally 
found in coastal oak woodland in the Vail Lake/Oak Mountain area, 
characterized by open to dense stands of the large evergreen Quercus 
agrifolia (coast live oak) in close association with surrounding scrub 
vegetation (Boyd et al. 1989, p. 7). In the Vail Lake area, this 
woodland type is found primarily in sandy washes, benches, and canyons 
on north-facing slopes, near ephemeral stream channels, or associated 
with springs (Boyd et al. 1989, pp. 7-8). The San Francisquito site, 
where B. nevinii has apparently naturalized, also has some coastal oak 
woodland, and Q. agrifolia is locally common south of B. nevinii in the 
canyon bottom at the Lopez Canyon site (Soza and Boyd 2000, pp. 23, 
26). Several stands in the Vail Lake area occur within the CWHR 
landcover described as valley foothill riparian, and several 
occurrences are also partly characterized as annual grassland (Service 
GIS data 2006). The Scott Canyon site is described as having an 
abundance of annual grasses (Boyd 1987, pp. 44-48, CNDDB 2007).
    Extant, native occurrences of Berberis nevinii are often found in 
association with one or more of the following chaparral and coastal 
sage scrub species: Eriogonum fasciculatum (California buckwheat), 
Artemisia californica (California sagebrush), Adenostoma fasciculatum 
(chamise), Rhus ovata

[[Page 8421]]

(sugar bush), R. trilobata (skunkbrush), R. integrifolia 
(lemonadeberry), Salvia mellifera (black sage), Sambucus mexicana 
(elderberry), Prunus ilicifolia (hollyleaf cherry), Rhamnus crocea 
(spiny redberry), and Quercus berberidifolia (scrub oak) (Boyd 1987, p. 
2; CNDDB 2007). Several native occurrences are associated with coastal 
oak woodland or riparian/alluvial scrub vegetation, such as Quercus 
agrifolia, Populus fremontii (Fremont cottonwood), Salix laevigata (red 
willow), Platanus racemosa (western sycamore), Baccharis glutinosa 
(mule-fat), or Lepidospartum squamatum (CNDDB 2007). Boyd (1987, p. 2) 
has noted that certain desert floral elements such as Encelia farinosa 
(brittlebush), Chrysothamnus nauseosus (rubber rabbitbrush), Artemisia 
tridentata (sagebrush), Chilopsis linearis (desert willow), Yucca 
schidigera (Mojave yucca), Opuntia parryi (snake cholla), and Atriplex 
canescens (fourwing saltbush) are often characteristic of the general 
area and many of the specific sites where B. nevinii occurs in the 
vicinity of Vail Lake. The presence of typically desert floral elements 
mixing with cismontane chaparral shrubs likely reflects the 
transitional nature of these sites between the cismontane area to the 
west and the Colorado Desert to the east (Boyd et al. 1989, p. 4). One 
native occurrence is on relatively flat clay lenses in an open 
grassland area with chaparral nearby. Associated plant species include 
Chenopodium californicum (pigweed), Avena fatua (wild oat), 
Harpagonella palmeri (Palmer's grappling hook), Plantago erecta 
(California plantain), Convolvulus simulans (bindweed), Galium 
porrigens (climbing bedstraw), and Delphinium sp. (Larkspur) (Wallace 
2006b, p. 1).
    Several observers have noted that seedlings and immature Berberis 
nevinii tend to occur in areas with some measure of protection, either 
in the shade or cover of another plant (Boyd 1987, pp. 77-78; Mistretta 
and Brown 1989, p. 10). This suggests the need for some relatively long 
fire-free period to allow for canopy growth and the creation of 
conditions conducive to germination, establishment, and recruitment of 
B. nevinii into chaparral. This idea was also proposed by White (2001, 
p. 36) and reiterated in his review of our proposal (White 2007, p. 1). 
Boyd et al. (1987, p. 77) noted that mature cultivated individuals were 
located in areas exposed to full sunlight, and Reiser (2001, 
unpaginated) noted that mature B. nevinii shrubs frequently tower above 
associated subshrubs. Based on field observations, seedlings may be 
shade tolerant, but that as B. nevinii matures, it may require more 
sunlight (Mistretta and Brown 1989, Attachment: ``Report on the 
Population and Ecological Data of Mahonia nevinii'' by Joy Nishida, p. 
1). A similar shade and sunlight requirement has been noted for several 
other resprouting chaparral shrub species, where seedlings and saplings 
are found mostly in the shade of other plants and seldom in the open, 
but recruitment into the shrub population appears to require the later 
development of a canopy gap, such as may be created by a fire event 
(Keeley 1992, p. 1,206).
    We have little information about pollinators, seed dispersal 
mechanisms, or the reproductive biology of this species. Berberis 
nevinii has loose clusters of bisexual yellow flowers that open between 
March and April, and fleshy, yellowish-red to red berries with plump, 
brown seeds that are present from May to July (Wolf 1940, unpaginated; 
Munz 1974, p. 245; Neihaus 1977, p. 1; Morris 2006). Species-specific 
information on pollinators for B. nevinii is lacking. Native bees in 
the following genera have been collected on species of Berberis native 
to North America: Andrena, Osmia, Emphoropsis, Synhalonia, Melissodes, 
and Ceratina (Krombein et al. 1979, vol. 2, pp. 1796, 1797, 1835, 2032, 
2129, 2152, 2168, 2182). These are generalist taxa; however, their 
habitat requirements and home ranges relative to the native Berberis 
taxa have not been determined. According to the U.S. Department of 
Agriculture (2006), native Berberis species ``provide significant 
forage for native bees.'' According to Mussen (2002), California's 
native Berberis species are ``visited (and probably pollinated) by 
honey bees'' (Apis mellifera).
    The genus Berberis contains species that are both self-compatible 
and self-incompatible (Anderson et al. 2001, p. 227), and while we do 
not know if B. nevinii is self-incompatible, we can draw some 
conclusions based on observed levels of reproduction, or the lack 
thereof, at known occurrences. As noted by the peer reviewer for the 
proposed critical habitat rule, several occurrences consist of only a 
single plant that has existed for years or decades without reproducing 
(Mistretta and Brown 1989), suggesting a self-incompatible pollination 
system (White 2001, p. 36). If this is the case, recovery of this 
species may require pollen transfers among the occurrences with 
demonstrated low reproductive output.
    Berberis nevinii does not appear to reproduce by vegetative means 
to any great extent if at all (Mistretta and Brown 1989, p. 5; Boyd 
2006); in other words, it does not regularly produce clones 
(genetically identical direct descendants) that are well separated from 
the parent individual through the process of rooting at nodes of 
slender elongate rhizomes, as is the case with some other members of 
the genus Berberis. According to White (2007, p. 1), the now-extirpated 
B. nevinii occurrence in San Timoteo Canyon, previously reported to 
reproduce vegetatively, was more likely resprouting from a large basal 
burl (refer to previous discussion of this terminology under the 
Species Description and Reproduction section above). Because vegetative 
reproduction appears to be uncommon, Mistretta and Brown (1989, p. 5) 
concluded that perpetuation of the species is likely dependent on its 
occasional production of viable seed.

Landscape Ecology and Population Demographics of Berberis Nevinii

    Many extant occurrences of Berberis nevinii are associated with 
chaparral or coastal sage scrub. Fire is a natural occurrence in 
southern California shrublands, and plants occurring in these 
vegetation communities are resilient or adapted to these types of 
disturbances (Keeley 1991, p. 84; Tyler 1996, p. 2,182). Postfire 
regeneration mechanisms among California shrubland species can 
generally be described as obligate seeding, obligate sprouting, or 
facultative sprouting (Kelly and Parker 1990, p. 114). Mature plants of 
obligate seeder species are typically killed by fire, and seeds are the 
only means of regeneration. Most have locally dispersed seeds that 
persist in the soil seed bank until dormancy is broken by an 
environmental stimulus, such as intense heat (Keeley 1991, p. 82). 
Plants of obligate sprouter species, on the other hand, are rarely 
killed by fire, but rather resprout from roots, lignotubers (burls), or 
epicormic buds (Kelly and Parker 1990, p. 114). These species have 
seeds that do not require fire for germination, but require fire-free 
periods for recruiting new seedlings (Keeley 1991, p. 82). In some 
species, postfire regeneration occurs by both sprouts and seeds 
(facultative sprouters), and fire-caused mortality is variable, likely 
due to characteristics of the individual fire (Kelly and Parker 1990, 
p. 114).
    Based on additional information received through peer review of the 
February 6, 2007, proposed critical habitat rule (72 FR 5552), Berberis 
nevinii appears to be an obligate sprouter as defined above, and its 
life history matches Keeley's (1991)

[[Page 8422]]

description of the ``fire resister'' or ``nonrefractory seed'' syndrome 
(i.e., seeds germinate without fire-associated cues) (White 2007, p. 
1). As stated in the proposed rule, B. nevinii resprouts following fire 
(Soza and Fraga 2003, p. 2; Sanders 2006, unpaginated; Mistretta and 
Brown 1989, p. 5). According to Soza and Boyd (2003, p. 2), Soza (2006, 
unpaginated), and the USFS (2005, p. 237), post-fire surveys on ANF and 
CNF reported B. nevinii regeneration by resprouting and recruitment 
from seeds. However, White (2007, p. 1), did not consider it likely 
that these seedlings would survive exposure during early post-fire 
years and would die before reaching reproductive maturity.
    Because southern California shrublands are adapted to a natural 
fire regime, plants within these communities likely require such 
conditions for long-term survival (63 FR 54961). Comparison of the 
contemporary fire regime in southern California to that of the natural 
regime (i.e., pre-fire suppression) shows that fire frequency has 
increased in the lower coastal valley and foothill zone, and that high 
fire frequencies tend to occur in those areas where high human 
densities interface with relatively undeveloped landscape (Keeley et 
al. 1999, p. 1,831; Keeley and Fotheringham 2001, p. 1,545; Wells et 
al. 2004, p. 147; Keeley 2006, p. 382). However, fire suppression has 
kept fires in check so that most stands burn within the range of 
natural variation (Keeley 2006, p. 382). Coastal sage scrub and 
chaparral have the largest amount of area that has burned multiple 
times over the past century and have the highest potential fire 
frequencies of all vegetation community types; only coastal sage scrub 
clearly shows an increasing trend in area burned over this time period 
(Wells et al. 2004, pp. 148, 151).
    Berberis nevinii's specific response to altered fire regimes (e.g., 
changes to fire frequency, timing, or intensity) is unknown (63 FR 
54961). However, overly frequent fire on the landscape could 
potentially kill young B. nevinii before they reach their reproductive 
potential and may adversely affect mature B. nevinii (Boyd 1991, pp. 7, 
9) by causing repeated resprouting that depletes stored resources 
faster than they can accumulate during fire-free periods (White 2007, 
p. 1). Repeated burnings over short intervals could eventually lead to 
type conversion of chaparral/shrublands to nonnative annual grassland 
(Boyd 1991, p. 9; Keeley et al. 1999, p. 1,831). This type conversion 
has been observed in areas surrounding urban centers (Keeley 2006, p. 
382). As noted above, the presence of a seed bank is inconsistent with 
the ``non-refractory seed'' (fire resistor) syndrome considered to be 
represented in B. nevinii (White 2007, p. 1); thus, overly frequent 
fires are not likely to adversely affect the soil seed bank for this 
species, as suggested in the proposed rule to designate critical 
habitat (72 FR 5560).
    Life history characteristics and population demographics of 
Berberis nevinii are largely unknown and unstudied. Berberis nevinii 
shrubs are long-lived (>50 years) (Mistretta and Brown 1989, p. 5) with 
low reproductive rates due to sporadic production of fertile seed 
(Mistretta and Brown 1989, p. 5). It has been suggested that B. nevinii 
may be a paleoendemic relic (meaning that its present distribution is a 
remnant of a formerly wider distribution) (Reiser 2001, unpaginated), 
which could explain its limited (small and widely scattered) 
distribution and low reproductive rates in the wild (Soza 2003).
    The ability of Berberis nevinii to stump sprout following 
disturbance (e.g., fire), as well as its great longevity, may play an 
important role in the persistence of the species. As discussed in 
Garcia and Zamora (2003, p. 921), there may be a population maintenance 
trade-off for long-lived plants between replacement of individuals by 
seeding and persistence of established plants. A persistence strategy 
may allow plants to survive through unfavorable conditions, potentially 
to reproduce again when conditions are more favorable (Garcia and 
Zamora 2003, p. 924). As mentioned previously, sexual or vegetative 
reproduction appears to be uncommon in many B. nevinii occurrences. 
However, because the species is long-lived, intermittent seed 
production over the lifespan of a shrub may be more important than 
annual seed production for perpetuating the species.

Primary Constituent Elements for Berberis Nevinii

    Based on our current knowledge of the life history, biology, and 
ecology of Berberis nevinii and the habitat requirements for sustaining 
the essential life history functions of the species, we have determined 
that B. nevinii requires the PCEs described below:
    (1) Low-gradient (i.e., nearly flat) canyon floors, washes and 
adjacent terraces, and mountain ridge/summits, or eroded, generally 
northeast- to northwest-facing mountain slopes and banks of dry washes 
typically of less than 70 percent slope that provide space for plant 
establishment and growth;
    (2) Well-drained alluvial soils primarily of non-marine sedimentary 
origin, such as Temecula or sandy arkose soils; soils of the Cajalco-
Temescal-Las Posas soil association formed on gabbro (igneous) or 
latite (volcanic) bedrock; metasedimentary substrates associated with 
springs or seeps; and heavy adobe/gabbro-type soils derived from 
metavolcanic geology (Mesozoic basic intrusive rock) that provide the 
appropriate nutrients and space for growth and reproduction; and
    (3) Scrub (chaparral, coastal sage, alluvial, riparian) and 
woodland (oak, riparian) vegetation communities between 900 and 3,000 
feet (275 and 915 meters) in elevation that provide the appropriate 
cover for growth and reproduction.
    This final designation is defined for the conservation of the 
physical and biological features essential to the conservation of the 
species, which support the life history functions of the species, 
through the identification of the appropriate quantity and spatial 
arrangement of areas containing the PCEs. Some units contain all of 
these PCEs and support multiple life processes, while some units 
contain only a portion of these PCEs, those necessary to support the 
species' particular use of that habitat. Because not all life history 
functions require all the PCEs, not all critical habitat units will 
contain all the PCEs.

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
within the geographical area occupied by the species at the time of 
listing contain the physical or biological features essential to the 
conservation of the species, and whether these features may require 
special management considerations or protection. As stated in the final 
listing rule (63 FR 54956, October 13, 1998), threats to the species 
and its physical and biological features include urban development, 
off-road vehicle use, human recreation (e.g., horseback riding), 
highway projects, fire management strategies (suppression measures, 
brush clearing) that alter natural fire processes to which native plant 
communities are adapted, and the introduction of invasive, nonnative 
plants that may compete with Berberis nevinii or contribute to 
combustible fuel loads (63 FR 54961). These threats can directly or 
indirectly result in the loss, modification, degradation, or 
fragmentation of B. nevinii habitat, thereby eliminating or reducing 
potential habitat for seed production and germination, seedling

[[Page 8423]]

establishment, plant growth and maturation, and population growth. 
Individually or combined, these threats may require special management 
considerations or protection of the physical and biological features as 
addressed here and in more detail within the individual critical 
habitat unit descriptions that follow.
    Urbanization, flood control measures, road widening, and habitat 
degradation from extensive recreational use have contributed to the 
loss of Berberis nevinii habitat and have apparently resulted in the 
extirpation of several occurrences, particularly in the San Fernando 
Valley of Los Angeles County (63 FR 54961). Urban development is 
currently the primary threat to B. nevinii habitat and occurrences in 
the vicinity of Vail Lake and Oak Mountain in Riverside County. 
Urbanization may destroy, degrade, fragment, or otherwise alter the 
topography, soil, and vegetation community structure in ways that make 
areas less suitable for B. nevinii. Land grading for residential 
development and road projects may affect the topography of the site 
(PCE 1); alter soil composition and structure (PCE 2); change 
vegetation community composition and structure through clearing or 
thinning of vegetation and the introduction of nonnative plants (PCE 
3); increase erosion potential (PCE 1 and 2); and change hydrological 
(drainage and water infiltration) patterns, thereby decreasing the 
quality and extent of available habitat for B. nevinii. Additionally, 
urban development within or near B. nevinii habitat may increase the 
frequency of fire on the landscape due to increased combustible fuel 
loads that may result from the incursion and spread of annual nonnative 
grasses and an increased potential for fire ignition.
    In the February 6, 2007, proposed rule (72 FR 5552), we focused 
primarily on potential indirect impacts of urbanization on Berberis 
nevinii habitat and occurrences in the vicinity of Vail Lake and Oak 
Mountain (72 FR 5565-5567). Urban development is not expected to 
directly impact the known occurrences of B. nevinii on Federal land in 
the Vail Lake and Oak Mountain area, although indirect impacts 
associated with increased urbanization may occur. On the other hand, B. 
nevinii habitat on private land in this area may be subject to some 
degree of residential development, as described below in the critical 
habitat subunit descriptions (see the Critical Habitat Designation 
section of this final rule). However, these private lands are located 
within the Criteria Area of the Western Riverside County MSHCP and are 
targeted, in whole or in part, for acquisition and inclusion in the 
MSHCP Conservation Area as Additional Reserve Lands. Specifically, the 
conservation objectives of the MSHCP include conservation and 
management of at least 8,000 ac (3,238 ha) of suitable habitat, 
including all known locations of B. nevinii in the Vail Lake area (see 
the Relationship of Critical Habitat to Habitat Conservation Plan 
Lands--Exclusions Under Section 4(b)(2) of the Act section below for a 
detailed discussion of the MSHCP).
    Recreational activities may also impact the physical and biological 
features essential to the conservation of the species by destroying, 
degrading, fragmenting, or otherwise altering the topography, soil, and 
vegetation community in ways that make areas less suitable for Berberis 
nevinii. For example, off-highway vehicle use, hiking, camping, 
horseback riding, and recreational facility development in or near B. 
nevinii occurrences could alter or destroy surface and subsurface 
structure through trampling and clearing or thinning of vegetation (PCE 
3), the introduction of nonnative plants (PCE 3), soil disturbance or 
compaction (PCE 2), and increased erosion and changes to hydrological 
(drainage and water infiltration) patterns that may in turn affect the 
topography, soil, and vegetation of the site (PCE 1, 2, and 3).
    Activities associated with fire management, such as fuel 
treatments, prescribed burns, and wildfire suppression, may also impact 
the physical and biological features essential to the conservation of 
the species. The creation of fuel breaks, brush clearing or thinning, 
and the use of heavy equipment and off-road vehicles for fire 
management could physically remove or disturb soils and alter soil 
composition (PCE 2), remove or destroy vegetation (PCE 3), increase 
erosion, and alter the topography (PCE 1) and hydrologic patterns in or 
near Berberis nevinii occurrences. Fire management activities could 
facilitate the incursion or spread of invasive, nonnative plants by 
potentially dispersing seeds and creating (disturbance) conditions that 
increase the competitive edge of nonnative species over native species, 
thereby altering the composition of the vegetation community (PCE 3). 
As pointed out in the proposed critical habitat rule (72 FR 5552), 
vegetation community composition and structure could be altered by fire 
management activities such as prescribed fires that are too frequent or 
that occur at times of the year atypical of the natural fire regime, or 
by fire suppression that allows overgrowth of high canopy cover, 
limiting or eliminating plant species that require full or partial sun 
from the plant community (72 FR 5563). Berberis nevinii's life history 
characteristics indicate that it likely recruits into chaparral during 
fire-free periods and may require long intervals between fires for 
recruitment and population increases; thus, overly frequent fire is a 
substantial and immediate threat to this species (White 2007, p. 1).
    While highway projects were identified in the final listing rule 
(63 FR 54956, October 13, 1998) and proposed critical habitat rule (72 
FR 5552; February 6, 2007) as a threat to Berberis nevinii, we do not 
anticipate that this activity will affect designated critical habitat 
in the foreseeable future. Specifically, the proposed critical habitat 
rule identified the proximity of Highway 79 as a potential threat to 
the B. nevinii occurrence and habitat on the CNF (Subunit 1B) in part 
due to proposed highway widening and realignment activities (72 FR 
5565). However, we no longer anticipate that these activities will 
affect Subunit 1B because: (1) There are currently no plans to widen 
the portion of State Route 79 closest to Subunit 1B, and (2) the 
revised subunit is now more than 525 ft (160 m) south of the highway, 
which is far enough away that impacts to the subunit from construction 
or widening activities are unlikely.
    Based on information provided for the economic analysis, nonnative 
Arundo donax (Arundo) and other invasive grasses are present in Subunit 
1B, and the CNF anticipates an eradication effort based on the weed 
management strategy in the USFS' Revised Land Management Plan for the 
Four Southern California National Forests (USFS 2005). Additional 
information obtained on water storage at Vail Lake indicates that lake 
level fluctuations could affect proposed subunits bordering Vail Lake 
(specifically, proposed subunits 1D and 1E). While we revised proposed 
critical habitat boundaries for these subunits based on the currently 
permitted storage capacity of Vail Lake (see the Criteria Used to 
Identify Critical Habitat section in this final rule), fluctuating 
water levels that surpass permitted storage levels and lake storage 
capacity could still affect Berberis nevinii in subunits that border 
Vail Lake. However, the occurrences that are located closest to Vail 
Lake have not been inundated or affected by rising water levels and 
fluctuations in the recent past (Boyd 2007, p. 1), and we do not 
anticipate that any B. nevinii individuals in this area will be 
affected.

[[Page 8424]]

Criteria Used To Identify Critical Habitat

    Berberis nevinii naturally occurs in small, isolated stands across 
its geographic range, with several known occurrences consisting of only 
a single large and presumably very old individual. At most sites, there 
is little to no evidence of reproduction. The Vail Lake and Oak 
Mountain area in western Riverside County has the highest concentration 
of native B. nevinii, representing several size (age) classes. Plants 
occur in numerous stands scattered throughout the area, with the 
largest number of plants located at the south edge of Vail Lake and on 
the peninsula protruding into the lake. The long-term conservation of 
B. nevinii will depend upon the protection of these core native 
occurrences and the maintenance of ecological functions within these 
sites.
    We delineated critical habitat for Berberis nevinii using the 
following criteria: (1) Areas occupied by naturally occurring 
individuals of the species at the time of listing and areas that are 
currently occupied by naturally occurring individuals; (2) occupied 
areas within the historical range of the species; (3) areas containing 
one or more of the PCEs for the species; and (4) areas currently 
occupied by more than two B. nevinii plants that show evidence of 
reproduction (i.e., fruits with seed, seedlings, or plants of various 
size or age classes) on site. For sites where there was no information 
available on reproduction or size/age class distribution, we assumed 
that reproduction had occurred at some point in the past if multiple B. 
nevinii plants were present. As discussed below, we also considered the 
ecological uniqueness of sites.
    We did not include sites with only one individual or sites with two 
individuals of the same size/age class because this condition may 
reflect a lack of successful reproduction and therefore the long-term 
viability of these occurrences is questionable. As discussed in the 
proposed critical habitat rule, many Berberis nevinii occurrences 
consist of very few individuals, and sometimes consist of only one or 
two large (presumably old) shrubs that have persisted on a site for 
many decades without evidence of reproducing. Because of the lack of 
evidence of reproduction for these small occurrences, and the low 
reproductive output of mature plants and limited numbers of surviving 
juvenile plants in general, we do not consider sites with only one 
plant or two plants of the same size/age class to represent an 
occurrence that exhibits a measurable degree of reproductive success 
that is likely to contribute to the recovery of the species.
    As explained in the Primary Constituent Elements section of this 
final rule, a self-incompatible pollination system has been suggested 
(White 2001, p. 36). Additionally, Berberis nevinii does not appear to 
reproduce by vegetative means (Mistretta and Brown 1989, p. 5; Boyd 
2006), as is the case with some other members of the genus Berberis. 
Therefore, pollen transfers from plants in different occurrences are 
likely necessary for reproduction to occur in sites supporting only one 
plant or two plants of the same size/age class. The habitat 
requirements and home ranges of potential pollinator species relative 
to native Berberis occurrences have not been determined; however, the 
lack of evidence of reproduction in these small B. nevinii occurrences 
suggests that pollination may not be occurring or another biological 
constraint is impacting the occurrences. The fact that reproduction has 
not been in evidence at these sites in several decades, if at all, 
suggests that they may not be viable occurrences over the long term. 
Whether or not these occurrences may contribute to recovery of the 
species is unknown at this time. We will continue to explore the 
potential conservation value of these small occurrences, and consider 
these occurrences in future recovery actions as appropriate.
    Whether naturalized occurrences will play a role in conservation of 
the species is also unknown. However, the naturalized occurrences 
represent some of the largest (in terms of number of individuals) and 
most vigorously reproducing occurrences of the species, and could 
potentially play a role in preserving genetic diversity. At least one 
occurrence supporting naturalized plants (San Francisquito Canyon, Los 
Angeles County) may contain an individual or descendents of an 
individual that originated from a nearby extirpated occurrence (i.e., 
the San Fernando Valley, Los Angeles County). Thus, we will continue to 
explore the potential conservation value of introduced occurrences, and 
consider these occurrences in future recovery actions as appropriate.
    We are aware of 39 records for Berberis nevinii rangewide 
documented by the CNDDB (2007). However, we do not have adequate 
information to determine the status of six of these occurrences, as 
described in the Criteria Used to Identify Critical Habitat sections of 
the proposed rule (72 FR 5552; February 6, 2007, p. 5562), and no 
additional information regarding these particular occurrences was 
provided to us during the public comment period. We considered 19 of 
the CNDDB records for B. nevinii to be extant, native occurrences, and 
all of these were known at the time of listing, although each was not 
specifically described in the final listing rule (63 FR 54956, October 
13, 1998). The majority of the extant, native occurrences are in 
Riverside County in the vicinity of Vail Lake and Oak Mountain, 
described in the final listing rule as one of the primary geographical 
areas occupied by the species. Only six of the CNDDB B. nevinii 
occurrences, all in Riverside County in the vicinity of Vail Lake and 
Oak Mountain, met our criteria for designating critical habitat. Five 
of the six occurrences consist of more than two individuals, and 
evidence of reproduction (multiple size/age classes, seedlings, and/or 
fruit with seed) is known for three of the occurrences (CNDDB element 
occurrences 24, 31, and 38). We do not know if reproduction has 
occurred at the other three sites (CNDDB element occurrences 32, 35, 
and 36), but we believe that it is possible given that these 
occurrences represent some of the largest groupings of the species.
    As discussed in the Background section of the proposed rule (72 FR 
5552; February 6, 2007), the Western Riverside County MSHCP database 
contains 32 records of extant Berberis nevinii occurrences from the 
vicinity of Vail Lake and Oak Mountain alone, as well as one record 
from the Soboba Badlands (72 FR 5555). However, many of the MSHCP 
records overlap and some appear to duplicate CNDDB records. In contrast 
to the CNDDB records, the MSHCP records largely do not contain 
accompanying data, such as number of plants, origin (native versus 
introduced), and habitat associations, making it impossible to 
accurately quantify the number of distinct occurrences or plants in 
this area (Service 2004, pp. 330-331) or determine the specific 
location of many of these occurrences. Therefore, we did not rely on 
the MSHCP occurrence records for determining critical habitat, but 
rather we sought additional information to clarify these records during 
the public comment period. We did not receive any additional 
information in this regard.
    We evaluated whether geographically peripheral (e.g., Los Angeles 
and San Bernardino Counties) native occurrences would fit into our 
criteria for identifying critical habitat. Despite the biological 
conservation arguments raised by Lesica and Allendorf (1995; pp. 753, 
754) to conserve peripheral

[[Page 8425]]

populations, we found that these Berberis nevinii occurrences did not 
meet our criteria for designation of critical habitat because they 
consisted of very few individuals (often only one) and did not appear 
to be reproducing. For example, the Lopez Canyon (CNDDB 2007 element 
occurrence 43) and Scott Canyon (CNDDB 2007 element occurrence 5) 
occurrences both consist of single large (old) individuals with no 
signs of past or current reproduction by seed. The San Timoteo Canyon 
occurrence (CNDDB element occurrence 4) has an unknown number of 
individuals (potentially only one), and reproduction has likely not 
occurred at this site in many decades (Sanders 2006, unpaginated).
    We also considered the ecological uniqueness of sites because 
occurrences within unique habitats may harbor genetic diversity that 
allows for persistence in these areas (Lesica and Allendorf 1995, p. 
757). We determined that ecologically unique habitats were essential to 
conservation of Berberis nevinii, and we included these areas in 
designated critical habitat if they were occupied by more than a single 
large (i.e., mature) individual. Areas occupied by only one large 
individual represent sites where regeneration is not occurring; thus, 
we did not consider these areas to be essential to conservation of the 
species.
    We also evaluated whether maintaining adjacent unoccupied habitat 
or corridors between occurrences may be important to facilitate and 
allow for pollen and seed dispersal within and between stands of 
Berberis nevinii. Available data indicates that the genus Berberis is 
likely pollinated by generalist bee taxa. However, we do not have any 
information that suggests a certain quantity of habitat is necessary to 
maintain the pollinator species associated with B. nevinii.
    We delineated critical habitat unit boundaries in the following 
manner:
    (1) We identified all areas occupied by the species at the time of 
listing or currently occupied by Berberis nevinii using location data 
in the CNDDB (2007);
    (2) We classified each of these occurrences as to their origin 
(native or cultivated), status (extant or extirpated), number of 
plants, and evidence of reproduction, where possible;
    (3) We determined which occurrences contain the physical and 
biological features essential to the conservation of the species using 
the criteria described above; and
    (4) Using GIS, we overlaid the occurrences identified in number 3 
above on aerial imagery and compared the polygon locations for these 
occurrences with location information from field surveys to narrow and 
refine the location of B. nevinii occurrence polygons. Finally, using 
aerial photography, we removed areas that did not contain any of the 
PCEs for the species (e.g., aquatic habitat in Vail Lake).
    As described in the Summary of Changes from Proposed Rule section 
above, in the proposed rule we overlaid 100 m (328 ft) square UTM grids 
over all essential habitat to delineate the proposed critical habitat 
boundaries and produce UTM coordinates. In this final rule we 
delineated critical habitat unit boundaries by screen-digitizing the 
habitat polygons that we determined contain the physical and biological 
features essential to the conservation of Berberis nevinii. The 
delineation of critical habitat boundaries through digitizing habitat 
polygons versus applying 328 ft (100 m) square grids over the areas we 
determined to be essential to the species reduced the total area from 
approximately 361 ac (146 ha), which was an overestimate of the area of 
essential habitat, to 173 ac (70 ha), which is the actual area we 
determined to be essential to the conservation of the species at the 
time of the proposed rule.
    When delineating proposed critical habitat, we also tried to remove 
areas from proposed subunits near Vail Lake that were identified as 
being under water, and therefore did not contain the physical and 
biological features (72 FR 5562). We based subunit delineations in the 
proposed rule on USGS 1-meter resolution color-balanced, color infrared 
aerial photography acquired in May to June 2002 for the Vail Lake area, 
western Riverside County. For this final rule, we reevaluated proposed 
critical habitat subunits bordering Vail Lake based on updated aerial 
photographs and Vail Lake volume data provided by Rancho California 
Water District (RCWD) during the development of the economic analysis. 
We removed areas along the shoreline from subunits 1D (North of Vail 
Lake) and 1E (South of Vail Lake/Peninsula) that do not contain the 
physical and biological features required by Berberis nevinii and are 
not occupied by the species due to lake-level fluctuations and 
recurrent, episodic inundation, sometimes for relatively long periods 
of time based on criteria discussed below. We published these revisions 
to proposed critical habitat and reopened the comment period in 
conjunction with the notice of availability for the DEA, published in 
the Federal Register on October 17, 2007 (72 FR 58793).
    As discussed in the October 17, 2007 (72 FR 58793) notice of 
availability, water levels at Vail Lake can fluctuate greatly, 
depending on the amount of local runoff reaching the lake, both within 
any given year and annually, frequently exceeding the 2002 water levels 
for relatively long periods of time. The RCWD, the entity that owns, 
operates, and manages Vail Dam and Vail Lake, has a surface water 
storage permit in the lake for up to 40,000 acre-feet (49,339 cubic-
meters) from November 1 to April 30, annually. Thus, we revised 
proposed critical habitat boundaries for subunits bordering Vail Lake 
based on lake levels at RCWD's permitted storage capacity. This 
process, coupled with the removal of the 100 m (328 ft) square grids, 
resulted in the removal of approximately 17 ac (7 ha) from proposed 
Subunit 1D and approximately 139 ac (56 ha) from proposed Subunit 1E, 
leaving approximately 5 ac (2 ha) and approximately 112 ac (45 ha) in 
proposed subunits 1D and 1E, respectively.
    Water volume in Vail Lake has been known to exceed 40,000 acre-feet 
(49,339 cubic-meters), even filling and surpassing lake storage 
capacity (50,000 acre-feet (61,674 cubic-meters)) with water flowing 
over the spillway. The creation of Vail Lake in 1948 may have resulted 
in the loss of some Berberis nevinii individuals; however, the 
occurrences that are now located closest to Vail Lake have not been 
inundated or affected by rising water levels and fluctuations in the 
recent past (Boyd 2007). Thus, the revisions to proposed critical 
habitat subunits 1D and 1E are not likely to result in B. nevinii 
individuals in this area falling outside the revised subunit 
boundaries. These revisions will, on the other hand, more accurately 
represent B. nevinii habitat in subunits 1D and 1E.
    We are designating critical habitat in areas that contain naturally 
occurring Berberis nevinii plants (i.e., not of cultivated origin or 
consisting of outplanted individuals). We have determined these areas 
were occupied at the time of listing and are the appropriate quantity 
and spatial arrangement of areas containing the PCEs to constitute the 
physical and biological features essential to the conservation of the 
species, which support the life history functions of the species.
    When determining the critical habitat boundaries for this final 
rule, we made every effort to avoid including developed areas, such as 
lands covered

[[Page 8426]]

by buildings, pavement, and other structures, because such lands lack 
PCEs for Berberis nevinii. The scale of the maps we prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed lands. Any such lands 
inadvertently left inside critical habitat boundaries shown on the map 
of this critical habitat rule have been excluded by text in this final 
rule. Therefore, a Federal action involving these lands would not 
trigger section 7 consultation with respect to critical habitat and the 
requirement of no adverse modification, unless the specific action may 
affect adjacent critical habitat.

Final Critical Habitat Designation

    We are designating one unit with two subunits as critical habitat 
for Berberis nevinii. The critical habitat areas identified below 
constitute our current best assessment of areas that meet the 
definition of critical habitat for B. nevinii. Table 1 outlines the 
area determined to meet the definition of critical habitat, including 
the areas excluded from the final critical habitat designation, and the 
two areas designated as final critical habitat for B. nevinii. A brief 
discussion of each area designated as critical habitat is provided in 
the unit descriptions below. Additional detailed documentation 
concerning the essential nature of these areas is contained in our 
supporting record for this rulemaking.

Table 1.--Amount of Land Determined to Meet the Definition of Critical Habitat, Amount of Land Excluded From the Final Critical Habitat Designation, and
                                             Amount of Land Designated Critical Habitat for Berberis nevinii
               [Area is displayed in acres (ac) (hectares (ha)), rounded to the nearest whole number. Numbers may not sum due to rounding]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Land meeting the definition of       Land excluded from
       Critical habitat unit          Land ownership by type            critical habitat               critical habitat            Critical habitat
--------------------------------------------------------------------------------------------------------------------------------------------------------
Unit 1. Agua Tibia/Vail Lake:
    1A. Big Oak Mountain Summit...  BLM.......................  5 ac (2 ha).....................  0 ac (0 ha)...............  5 ac (2 ha)
    1B. Agua Tibia Mountain         USFS......................  1 ac (1 ha).....................  0 ac (0 ha)...............  1 ac (1 ha)
     Foothills.
    1C. South Flank Big Oak         Private...................  39 ac (16 ha)...................  39 ac (16 ha).............  0 ac (0 ha)
     Mountain.
    1D. North of Vail Lake........  Private...................  5 ac (2 ha).....................  5 ac (2 ha)...............  0 ac (0 ha)
    1E. South of Vail Lake/         Private...................  112 ac (45 ha)..................  112 ac (45 ha)............  0 ac (0 ha)
     Peninsula.
    1F. Temecula Creek East.......  Private...................  11 ac (4 ha)....................  11 ac (4 ha)..............  0 ac (0 ha)
                                                               -----------------------------------------------------------------------------------------
        Total.....................  ..........................  173 ac (70 ha)..................  167 ac (67 ha)............  6 ac (3 ha)
--------------------------------------------------------------------------------------------------------------------------------------------------------

    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed animal species incidental to otherwise lawful 
activities. An incidental take permit application must be supported by 
a habitat conservation plan (HCP) that identifies conservation measures 
that the permittee agrees to implement for the covered species to 
minimize and mitigate the impacts of the requested incidental take. 
Often HCPs also incorporate conservation measures to benefit listed 
plant species, although take of plant species is not prohibited under 
the Act. We often exclude non-Federal public lands and private lands 
that are covered by an existing operative HCP and executed 
implementation agreement (IA) under section 10(a)(1)(B) of the Act from 
designated critical habitat where we determine that the benefits of 
exclusion outweigh the benefits of inclusion as discussed in section 
4(b)(2) of the Act. Based on such a determination, we are excluding the 
private lands covered under the Western Riverside County MSHCP from the 
final designation of critical habitat for Berberis nevinii (see the 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion).
    Below, we present a brief description of the areas included in the 
final designation and reasons why these areas meet the definition of 
critical habitat for Berberis nevinii.

Unit 1: Agua Tibia/Vail Lake

    Unit 1 comprises approximately 6 ac (3 ha) and is divided into two 
subunits: Big Oak Mountain Summit (1A) and Agua Tibia Mountain 
Foothills (1B). The lands in Unit 1 were occupied at the time of 
listing, contain the physical and biological features essential to the 
conservation of Berberis nevinii, and may be important for maintaining 
genetic diversity for the species as they include occurrences in 
ecologically unique areas.
Subunit 1A: Big Oak Mountain Summit
    Subunit 1A consists of approximately 5 ac (2 ha) of Federal land 
managed by the BLM on Big Oak Mountain to the north of Vail Lake in 
southern Riverside County. Two Berberis nevinii individuals of 
different sizes (ages) occur in this subunit on the summit of Big Oak 
Mountain at approximately 2,700 ft (823 m) elevation (i.e., the lower 
edge of the marine layer) (PCE 1 and 3). One individual is an old plant 
that is covered in lichens, and the other individual is considerably 
smaller and at some distance to the northeast of the older plant. This 
location is considered unusual (i.e., ecologically unique) for the 
species in that it is at higher elevation and on relatively flat clay 
lenses consisting of heavy adobe/gabbro type soils with high water-
holding capacity, derived from Mesozoic basic intrusive rock (PCE 2) 
(Soza 2003, unpaginated). Soils in this area are classified primarily 
as Auld clay, 8 to 15 percent slopes, and Las Posas loam, 8 to 15 
percent slopes, eroded (PCE 2) (Service GIS data 2006). This occurrence 
is located in an open grassland area with chaparral nearby. Associated 
plant species include Chenopodium californicum, Avena fatua, 
Harpagonella palmeri, Plantago erecta, Convolvulus simulans, Galium 
porrigens, and Delphinium sp.
    We are designating this subunit as critical habitat even though it 
is occupied by only two Berberis nevinii plants because it represents 
an ecologically unique site for the species and contains the physical 
and biological features essential to the conservation of B. nevinii. 
Additionally, this site contains naturally occurring B. nevinii of 
different sizes (ages). Because this occurrence is on an ecologically 
unique site, this subunit may be important in terms of preserving 
genetic diversity throughout the range of the species. Berberis nevinii 
occupied this subunit at the time of listing (63 FR 54956; October 13, 
1998).

[[Page 8427]]

    Bureau of Land Management land on Big Oak Mountain consists of 
three small parcels totaling 888 ac (360 ha) surrounded by private 
land. The primary threats to Berberis nevinii habitat in this area are 
the indirect effects associated with urban and residential development 
on private lands adjacent to BLM lands, such as increased human 
recreation; incursion or spread of invasive, nonnative plants; and 
changes to the natural fire regime (i.e., increased ignitions and fire 
frequency, and shortened fire return intervals that can lead to type 
conversion of shrublands to annual grasslands). The BLM Resource 
Management Plan indicates that these parcels are closed to motorized 
vehicles and livestock grazing (BLM 1994, p. 28). However, special 
management considerations or protection for the physical and biological 
features may be needed to minimize disturbance to the vegetation and 
soils within this subunit; control invasive, nonnative plants; and 
maintain the natural hydrologic and fire regime of the area resulting 
from urban and residential development.
Subunit 1B: Agua Tibia Mountain Foothills
    Subunit 1B consists of approximately 1 ac (<1 ha) of federally-
owned land managed by the USFS on the CNF near the Agua Tibia 
Wilderness Area in southern Riverside County, California. Five Berberis 
nevinii individuals are known from this area and are located at the 
edge of a stream channel (PCE 1) growing in association with coast live 
oak and riparian woodland species (PCE 3). Nearby chaparral includes 
such species as Quercus berberidifolia, Adenostoma fasciculatum, and 
Haplopappus squarrosus, and nearby desert species include Yucca 
schidigera (CNDDB 2007). These B. nevinii plants are growing under a 
canopy of Quercus agrifolia and Platanus racemosa with the following 
species: Heteromeles arbutifolia, Q. berberidifolia, Elymus 
condensatus, Mimulus aurantiacus, Lonicera subspicata, Pterostegia 
drymarioides, and Epilobium canum. Soils in this area are classified as 
rough broken land and Visalia gravelly sandy loam, with 5 to 9 percent 
slopes (PCE 2) (Service GIS data 2007).
    We are designating this subunit as critical habitat because it 
contains the physical and biological features essential to conservation 
of Berberis nevinii and it contains a relatively large natural 
occurrence of the species. Additionally, Service personnel visited this 
site in June 2006 while B. nevinii was in fruit and found that several 
of the fruits had three to four seeds, which may be significant for a 
species that appears to rarely set seed. Berberis nevinii occupied this 
subunit at the time of listing, as identified in the final listing rule 
(63 FR 54956, October 13, 1998).
    The Berberis nevinii occurrence on the CNF is not as well protected 
as the occurrence on the ANF (USFS 2005, p. 238). The primary threats 
to B. nevinii habitat in this area are human recreation (off-highway 
vehicle use, shooting); wildland fire, including an increased risk of 
fire ignition due to the proximity of State Highway 79 (USFS 2005, pp. 
232, 237); fuels and fire management activities (USFS 2005, p. 237); 
and invasive, nonnative plants, including potential short-term adverse 
effects associated with control efforts (USFS 2005, p. 234). This 
occurrence on the CNF burned in 1996 and vigorously resprouted 
following the fire (USFS 2005, p. 237). According to the USFS, this 
location has shown signs of disturbance from road activities, with 
unauthorized use of off-highway vehicles occurring close to, but not 
within, the area occupied by the species (USFS 2005, p. 235). 
Nonetheless, the magnitude of impacts associated with roads and 
recreational activity in this area appears to be low (USFS 2005, p. 
238). Also, the USFS does not anticipate substantial camping and 
hiking-related impacts to B. nevinii habitat, and intends to avoid or 
mitigate these impacts through implementation of Forest Plan standards 
(USFS 2005, p. 234).
    The February 6, 2007, proposed rule (72 FR 5552) identified the 
proximity of Highway 79 as a potential threat to the Berberis nevinii 
occurrence and habitat on the CNF, in part due to proposed highway 
widening and realignment activities (72 FR 5565). However, we no longer 
anticipate that these activities will affect Subunit 1B as there 
currently are no plans for widening or realigning Highway 79 in the 
section of roadway closest to this subunit. The revised subunit is now 
more than 525 ft (160 m) south of the highway. As discussed in the 
Special Management Considerations or Protection section above, the 
presence of invasive, nonnative plants may impact the B. nevinii 
occurrence and habitat at this site. However, the CNF anticipates an 
eradication effort of the nonnative Arundo donax and other invasive 
grasses (USFS 2005) present in this subunit, which should minimize the 
impacts of this threat to the species and its habitat.
    One of the greatest threats to occupied habitat on the CNF and the 
physical and biological features contained therein is from wildland 
fire and the management of fire and fuels (i.e., fire suppression and 
prevention activities). This subunit is within the Wildland-Urban 
Interface (WUI) Defense Zone (USFS 2005, p. 237; Service 2005, p. 127). 
Some plants or habitat within the WUI Defense Zone could be removed or 
degraded under the Revised Land and Resource Management Plan due to 
fuel removal for fire protection or overly frequent fuel treatments 
(Service 2005, p. 127). Special management considerations or protection 
of the physical and biological features may be required to minimize 
disturbance to the vegetation and soils within this subunit; control 
invasive, nonnative plants; and maintain the natural fire regime of the 
area.
Subunit 1C: South Flank Big Oak Mountain
    We are excluding this subunit from the final designation of 
critical habitat under section 4(b)(2) of the Act (Table 1). See the 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a 
discussion of this exclusion.
Subunit 1D: North of Vail Lake
    We are excluding this subunit from the final designation of 
critical habitat under section 4(b)(2) of the Act (Table 1). See the 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a 
discussion of this exclusion.
Subunit 1E: South of Vail Lake/Peninsula
    We are excluding this subunit from the final designation of 
critical habitat under section 4(b)(2) of the Act (Table 1). See the 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a 
discussion of this exclusion.
Subunit 1F: Temecula Creek East
    We are excluding this subunit from the final designation of 
critical habitat under section 4(b)(2) of the Act (Table 1). See the 
Relationship of Critical Habitat to Habitat Conservation Plan Lands--
Exclusions Under Section 4(b)(2) of the Act section below for a 
discussion of this exclusion.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7(a)(2) of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to jeopardize the continued existence of a listed species or 
destroy or adversely

[[Page 8428]]

modify designated critical habitat. Decisions by the 5th and 9th 
Circuit Courts of Appeals have invalidated our definition of 
``destruction or adverse modification'' (50 CFR 402.02) (see Gifford 
Pinchot Task Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 
(9th Cir 2004) and Sierra Club v. U.S. Fish and Wildlife Service et 
al., 245 F.3d 434, 442F (5th Cir 2001)), and we do not rely on this 
regulatory definition when analyzing whether an action is likely to 
destroy or adversely modify critical habitat. Under the statutory 
provisions of the Act, we determine destruction or adverse modification 
on the basis of whether, with implementation of the proposed Federal 
action, the affected critical habitat would remain functional to serve 
its intended conservation role for the species.
    Under section 7(a)(2) of the Act, if a Federal action may affect a 
listed species or its critical habitat, the responsible Federal agency 
(action agency) must enter into consultation with us. As a result of 
this consultation, we document compliance with the requirements of 
section 7(a)(2) through our issuance of:
    (1) A concurrence letter for Federal actions that may affect, but 
are not likely to adversely affect, listed species or critical habitat; 
or
    (2) A biological opinion for Federal actions that are likely to 
adversely affect listed species or critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to jeopardize the continued existence of a listed species or 
destroy or adversely modify critical habitat, we also provide 
reasonable and prudent alternatives to the project, if any are 
identifiable. We define ``Reasonable and prudent alternatives'' at 50 
CFR 402.02 as alternative actions identified during consultation that:
     Can be implemented in a manner consistent with the 
intended purpose of the action,
     Can be implemented consistent with the scope of the 
Federal agency's legal authority and jurisdiction,
     Are economically and technologically feasible, and
     Would, in the Director's opinion, avoid jeopardizing the 
continued existence of the listed species or destroying or adversely 
modifying critical habitat.

Reasonable and prudent alternatives can vary from slight project 
modifications to extensive redesign or relocation of the project. Costs 
associated with implementing a reasonable and prudent alternative are 
similarly variable.
    Regulations at 50 CFR 402.16 require Federal agencies to reinitiate 
consultation on previously reviewed actions in instances where we have 
listed a new species or subsequently designated critical habitat that 
may be affected and the Federal agency has retained discretionary 
involvement or control over the action (or the agency's discretionary 
involvement or control is authorized by law). Consequently, Federal 
agencies may sometimes need to request reinitiation of consultation 
with us on actions for which formal consultation has been completed, if 
those actions with discretionary involvement or control may affect 
subsequently listed species or designated critical habitat.
    Federal activities that may affect Berberis nevinii or its 
designated critical habitat will require section 7(a)(2) consultation 
under the Act. Activities on State, Tribal, local or private lands 
requiring a Federal permit (such as a permit from the U.S. Army Corps 
of Engineers under section 404 of the Clean Water Act (33 U.S.C. 1251 
et seq.) or a permit from us under section 10(a)(1)(B) of the Act) or 
involving some other Federal action (such as funding from the Federal 
Highway Administration, Federal Aviation Administration, or the Federal 
Emergency Management Agency) are examples of agency actions that may be 
subject to the section 7(a)(2) consultation process. Federal actions 
not affecting listed species or critical habitat, and actions on State, 
Tribal, local or private lands that are not federally funded, 
authorized, or permitted, do not require section 7(a)(2) consultations.

Application of the ``Adverse Modification'' Standard

    The key factor related to the adverse modification determination is 
whether, with implementation of the proposed Federal action, the 
affected critical habitat would continue to serve its intended 
conservation role for the species. Activities that may destroy or 
adversely modify critical habitat are those that alter the physical and 
biological features to an extent that appreciably reduces the 
conservation value of critical habitat for Berberis nevinii. Generally, 
the conservation role of B. nevinii critical habitat units is to 
support native occurrences of the species in the Vail Lake and Oak 
Mountain area, which in combination with occurrences on private land 
excluded from critical habitat designation under section 4(b)(2) of the 
Act, comprise the core viable natural population(s) of the species.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat, activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation.
    Activities that, when carried out, funded, or authorized by a 
Federal agency, may affect critical habitat and therefore should result 
in consultation for Berberis nevinii include, but are not limited to 
(please see Special Management Considerations or Protection section for 
a more detailed discussion on the impacts of these actions to the 
listed species):
    (1) Activities that would directly or indirectly impact Berberis 
nevinii habitat and its physical and biological features. Such 
activities could include, but are not limited to: Residential or 
commercial development; fire prevention and suppression activities, 
such as the creation of fuel breaks and brush clearing or thinning; 
recreation management activities, including managing authorized 
recreation and restricting unauthorized recreation through placement of 
recreational trailheads, signs, barriers, maps, and/or facilities; off-
road vehicle use; heavy recreational use; road development, 
maintenance, or improvement projects, such as road grading, widening, 
or realignment; flood control projects, such as vegetation stripping; 
and water storage projects that increase the period that habitat is 
inundated. These activities could change the physical and biological 
features of the habitat by: Affecting the topography of the site; 
physically removing or damaging soils and associated vegetation; 
altering the natural hydrology of the area; and by introducing and 
facilitating the spread of invasive, nonnative plant species. 
Additionally, actions to control or eradicate invasive, nonnative 
plants may cause temporary direct or indirect adverse impacts to B. 
nevinii habitat, although the ultimate outcome may be beneficial by 
removing species that compete with B. nevinii and contribute to high 
combustible fuel loads.
    (2) Activities that would alter fire frequency in areas occupied by 
Berberis nevinii. Such activities could include, but are not limited 
to, prescribed burns that are too frequent or poorly timed. These 
activities could reduce the ability of B. nevinii to grow and reproduce 
by altering soil and vegetation community structure and composition 
(e.g., type conversion of shrublands into grasslands).
    (3) Activities that would foster the introduction or spread of 
nonnative vegetation. These activities could include, but are not 
limited to: Seeding

[[Page 8429]]

areas with nonnative species following a fire; planting nonnative 
species or using non-weed free hay straw for slope, bank, and soil 
erosion control; and ground-disturbing activities, such as recreation 
management projects and road maintenance, improvement, or construction 
projects. These activities could reduce the ability of Berberis nevinii 
to grow and reproduce because nonnative plant species may crowd out or 
otherwise compete with B. nevinii. Additionally, an increase in 
nonnative plants could change the fire regime by creating conditions 
prone to frequent fire (e.g., increased fuel loads and continuous fuel 
beds) and by altering soil composition.
    We consider all of the lands designated as critical habitat for 
Berberis nevinii to contain the physical and biological features 
essential to the conservation of the species. The two subunits 
designated as critical habitat are within the geographic range of the 
species, were occupied at the time of listing, and are currently 
occupied by B. nevinii. Federal agencies already consult with us on 
activities in areas occupied by B. nevinii that may affect the species 
to ensure that their actions do not jeopardize the continued existence 
of B. nevinii.

Exclusions

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

    Section 4(b)(2) of the Act states that the Secretary must designate 
or revise critical habitat on the basis of the best available 
scientific data after taking into consideration the economic impact, 
national security impact, and any other relevant impact of specifying 
any particular area as critical habitat. The Secretary may exclude an 
area from critical habitat if he determines that the benefits of such 
exclusion outweigh the benefits of specifying such area as part of the 
critical habitat, unless he determines, based on the best scientific 
data available, that the failure to designate such area as critical 
habitat will result in the extinction of the species. In making that 
determination, the legislative history is clear that the Secretary has 
broad discretion regarding which factor(s) to use and how much weight 
to give to any factor. In the following sections, we address a number 
of general issues that are relevant to the exclusions we have 
considered.

Benefits of Designating Critical Habitat

    The process of designating critical habitat as described in the Act 
requires that the Service identify those lands on which are found the 
physical or biological features essential to the conservation of the 
species that may require special management considerations or 
protection, and those areas outside the geographical area occupied by 
the species at the time of listing that are essential to the 
conservation of the species. In identifying those lands, the Service 
must consider the recovery needs of the species, such that, on the 
basis of the best scientific and commercial data available at the time 
of designation, the habitat that is identified, if managed, could 
provide for the survival and recovery of the species.
    The identification of those areas that are essential for the 
conservation of the species and can, if managed, provide for the 
recovery of a species is beneficial. The process of proposing and 
finalizing a critical habitat rule provides the Service with the 
opportunity to determine the physical and biological features essential 
to the conservation of the species within the geographical area 
occupied by the species at the time of listing, as well as to determine 
other areas essential for the conservation of the species. The 
designation process includes peer review and public comment on the 
identified physical and biological features and essential areas. This 
process is valuable to land owners and managers in developing 
conservation management plans for identified areas, as well as any 
other occupied habitat or suitable habitat that may not have been 
included in the Service's determination of essential habitat.
    The consultation provisions under section 7(a) of the Act 
constitute the regulatory benefits of critical habitat. As discussed 
above, Federal agencies must consult with us on discretionary actions 
that may affect critical habitat and must avoid destroying or adversely 
modifying critical habitat. Federal agencies must also consult with us 
on discretionary actions that may affect a listed species and refrain 
from undertaking actions that are likely to jeopardize the continued 
existence of such species. The analysis of effects to critical habitat 
is a separate and different analysis from that of the effects to the 
species. Therefore, the difference in outcomes of these two analyses 
represents the regulatory benefit of critical habitat. For some 
species, and in some locations, the outcome of these analyses will be 
similar, because effects on habitat will often result in effects on the 
species. However, the regulatory standard is different: The jeopardy 
analysis looks at the action's impact on survival and recovery of the 
species, while the adverse modification analysis looks at the action's 
effects on the designated habitat's contribution to the species' 
conservation. This will, in many instances, lead to different results 
and different regulatory requirements. Thus, critical habitat 
designations may provide greater regulatory benefits to the recovery of 
a species than would listing alone.
    There are two limitations to the regulatory effect of critical 
habitat. First, a section 7(a)(2) consultation is required only where 
there is a Federal nexus (an action authorized, funded, or carried out 
by any Federal agency)--if there is no Federal nexus, the critical 
habitat designation of private lands itself does not restrict any 
actions that destroy or adversely modify critical habitat. Second, the 
designation only limits destruction or adverse modification. By its 
nature, the prohibition on adverse modification is designed to ensure 
that the conservation role and function of those areas that contain the 
physical and biological features essential to the conservation of the 
species or of unoccupied areas that are essential for the conservation 
of the species are not appreciably reduced. Critical habitat 
designation alone, however, does not require property owners to 
undertake affirmative actions to promote the recovery of the species.
    Once an agency determines that consultation under section 7(a)(2) 
of the Act is necessary, the process may conclude informally when we 
concur in writing that the proposed Federal action is not likely to 
adversely affect critical habitat. However, if we determine through 
informal consultation that adverse impacts are likely to occur, then we 
would initiate formal consultation, which would conclude when we issue 
a biological opinion on whether the proposed Federal action is likely 
to result in destruction or adverse modification of critical habitat.
    For critical habitat, a biological opinion that concludes in a 
determination of no destruction or adverse modification may contain 
discretionary conservation recommendations to minimize adverse effects 
to the physical and biological features essential to the conservation 
of the species, but it would not suggest the implementation of any 
reasonable and prudent alternative. We suggest reasonable and prudent 
alternatives to the proposed Federal action only when our biological 
opinion results in an adverse modification conclusion.
    As stated above, the designation of critical habitat does not 
require that any management or recovery actions take place on the lands 
included in the designation. Even in cases where consultation has been 
initiated under

[[Page 8430]]

section 7(a)(2) of the Act, the end result of consultation is to avoid 
jeopardy to the species and/or adverse modification of its critical 
habitat, but not necessarily to manage critical habitat or institute 
recovery actions on critical habitat. Conversely, voluntary 
conservation efforts implemented through management plans may institute 
proactive actions over the lands they encompass and are often put in 
place to remove or reduce known threats to a species or its habitat; 
therefore implementing recovery actions. We believe that in many 
instances the benefit to a species and/or its habitat realized through 
the designation of critical habitat is low when compared to the 
conservation benefit that can be achieved through conservation efforts 
or management plans. The conservation achieved through implementing 
HCPs or other habitat management plans can be greater than what we 
achieve through multiple site-by-site, project-by-project, section 
7(a)(2) consultations involving consideration of critical habitat. 
Management plans may commit resources to implement long-term management 
and protection to particular habitat for at least one and possibly 
additional listed or sensitive species. Section 7(a)(2) consultations 
commit Federal agencies to preventing adverse modification of critical 
habitat caused by the particular project only, and not to providing 
conservation or long-term benefits to areas not affected by the 
proposed project. Thus, implementation of any HCP or management plan 
that considers enhancement or recovery as the management standard may 
often provide as much or more benefit than a consultation for critical 
habitat designation.
    Another benefit of including lands in critical habitat is that 
designation of critical habitat serves to educate landowners, State and 
local governments, and the public regarding the potential conservation 
value of an area. This helps focus and promote conservation efforts by 
other parties by clearly delineating areas of high conservation value 
for the affected species. In general, critical habitat designation 
always has educational benefits; however, in some cases they may be 
redundant with other educational effects. For example, HCPs have 
significant public input and may largely duplicate the educational 
benefits of a critical habitat designation. Including lands in critical 
habitat also would inform State agencies and local governments about 
areas that could be conserved under State laws or local ordinances.

Conservation Partnerships on Non-Federal Lands

    Most federally listed species in the United States will not recover 
without the cooperation of non-Federal landowners. More than 60 percent 
of the United States is privately owned (National Wilderness Institute 
1995), and at least 80 percent of endangered or threatened species 
occur either partially or solely on private lands (Crouse et al. 2002, 
p. 720). Stein et al. (1995, p. 400) found that only about 12 percent 
of listed species were found almost exclusively on Federal lands (90 to 
100 percent of their known occurrences restricted to Federal lands) and 
that 50 percent of federally listed species are not known to occur on 
Federal lands at all.
    Given the distribution of listed species with respect to land 
ownership, conservation of listed species in many parts of the United 
States is dependent upon working partnerships with a wide variety of 
entities and the voluntary cooperation of many non-Federal landowners 
(Wilcove and Chen 1998; Crouse et al. 2002; James 2002). Building 
partnerships and promoting voluntary cooperation of landowners are 
essential to our understanding the status of species on non-Federal 
lands, and necessary for us to implement recovery actions such as 
reintroducing listed species and restoring and protecting habitat.
    Many non-Federal landowners derive satisfaction from contributing 
to endangered species recovery. We promote these private-sector efforts 
through the Department of the Interior's Cooperative Conservation 
philosophy. Conservation agreements with non-Federal landowners (HCPs, 
safe harbor agreements, other conservation agreements, easements, and 
State and local regulations) enhance species conservation by extending 
species protections beyond those available through section 7(a)(2) 
consultations. In the past decade, we have encouraged non-Federal 
landowners to enter into conservation agreements, based on the view 
that we can achieve greater species conservation on non-Federal land 
through such partnerships than we can through regulatory methods (61 FR 
63854; December 2, 1996).
    Many private landowners, however, are wary of the possible 
consequences of attracting endangered species to their property. 
Mounting evidence suggests that some regulatory actions by the Federal 
Government, while well-intentioned and required by law, can (under 
certain circumstances) have unintended negative consequences for the 
conservation of species on private lands (Wilcove et al. 1996; Bean 
2002; Conner and Mathews 2002; James 2002; Koch 2002; Brook et al. 
2003). Many landowners fear a decline in their property value due to 
real or perceived restrictions on land-use options where threatened or 
endangered species are found. Consequently, harboring endangered 
species is viewed by many landowners as a liability. This perception 
results in anti-conservation incentives, because maintaining habitats 
that harbor endangered species represents a risk to future economic 
opportunities (Main et al. 1999; Brook et al. 2003).
    According to some researchers, the designation of critical habitat 
on private lands significantly reduces the likelihood that landowners 
will support and carry out conservation actions (Main et al. 1999; Bean 
2002; Brook et al. 2003). The magnitude of this outcome is greatly 
amplified in situations where active management measures (such as 
reintroduction, fire management, control of invasive species) are 
necessary for species conservation (Bean 2002). We believe that the 
judicious exclusion of specific areas of non-federally owned lands from 
critical habitat designations can contribute to species recovery and 
provide a superior level of conservation.
    The purpose of designating critical habitat is to contribute to the 
conservation of threatened and endangered species and the ecosystems 
upon which they depend. The outcome of the designation, triggering 
regulatory requirements for actions funded, authorized, or carried out 
by Federal agencies under section 7(a)(2) of the Act, can sometimes be 
counterproductive to its intended purpose on non-Federal lands. Thus, 
the benefits of excluding areas that are covered by effective 
partnerships or other conservation commitments can often be high.

Benefits of Excluding Lands With HCPs

    The benefits of excluding lands with approved HCPs from critical 
habitat designation include relieving landowners, communities, and 
counties of any additional regulatory burden that might be imposed by 
critical habitat. Many HCPs take years to develop, and upon completion, 
are consistent with recovery objectives for listed species that are 
covered within the plan area. Many conservation plans also provide 
conservation benefits to unlisted sensitive species. Imposing an 
additional regulatory review as a result

[[Page 8431]]

of the designation of critical habitat may undermine conservation 
efforts and partnerships designed to proactively protect species to 
ensure that listing under the Act will not be necessary. Our experience 
in implementing the Act has found that designation of critical habitat 
within the boundaries of management plans that provide conservation 
measures for a species is a disincentive to many entities which are 
either currently developing such plans, or contemplating doing so in 
the future, because one of the incentives for undertaking conservation 
is greater ease of permitting where listed species will be affected. 
Addition of a new regulatory requirement would remove a significant 
incentive for undertaking the time and expense of management planning. 
In fact, designating critical habitat in areas covered by a pending HCP 
or conservation plan could result in the loss of some species' benefits 
if participants abandon the planning process, in part because of the 
strength of the perceived additional regulatory compliance that such 
designation would entail. The time and cost of regulatory compliance 
for a critical habitat designation do not have to be quantified for 
them to be perceived as an additional Federal regulatory burden 
sufficient to discourage continued participation in developing plans 
targeting listed species' conservation.
    A related benefit of excluding lands covered by approved HCPs from 
critical habitat designation is the unhindered, continued ability it 
gives us to seek new partnerships with future plan participants, 
including States, Counties, local jurisdictions, conservation 
organizations, and private landowners, which together can implement 
conservation actions that we would be unable to accomplish otherwise. 
We have found that potential participants are not inclined to 
participate in such management plans when we designate critical habitat 
within the area that would be covered by such a management plan, thus 
having a negative effect on our ability to establish new partnerships 
to develop these plans, particularly plans that address landscape-level 
conservation of species and habitats. By excluding these lands, we 
preserve our current partnerships and encourage additional conservation 
actions in the future.
    We also note that permit issuance in association with HCP 
applications require consultation under section 7(a)(2) of the Act, 
which would include the review the effects of all HCP-covered 
activities that might adversely impact the species under a jeopardy 
standard, including possibly significant habitat modification (see 
definition of ``harm'' at 50 CFR 17.3), even without the critical 
habitat designation. In addition, all other Federal actions that may 
affect the listed species would still require consultation under 
section 7(a)(2) of the Act, and we would review these actions for 
possibly significant habitat modification in accordance with the 
definition of harm referenced above.
    The information provided in the previous section applies to all the 
following discussions of benefits of inclusion or exclusion of critical 
habitat.
    After considering the following areas under section 4(b)(2) of the 
Act, we are excluding approximately 167 ac (67 ha) of non-Federal lands 
from the Berberis nevinii critical habitat designation in subunits 1C, 
1D, 1E, 1F that are within the Western Riverside County Multiple 
Species Habitat Conservation Plan (MSHCP) area. A detailed analysis of 
our exclusion of these lands under section 4(b)(2) of the Act is 
provided below.

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

    At the request of the USFS, we evaluated the appropriateness of 
excluding Forest Service lands from the final designation of critical 
habitat for Berberis nevinii under section 4(b)(2) of the Act based on 
management provided for federally listed species, including B. nevinii, 
under the USFS Land Management Plan and the Species Management Guide 
for B. nevinii. As discussed in more detail in our response to Comment 
12 in the Public Comments section above, we have concluded that the 
exclusion of Forest Service lands in this instance does not outweigh 
the benefits of their designation. Therefore, as previously discussed, 
we are designating approximately 1 ac of Forest Service lands in 
subunit 1B as critical habitat for B. nevinii.

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

    When performing the required analysis under section 4(b)(2) of the 
Act, the existence of a management plan (HCPs as well as other types) 
that considers enhancement or recovery of listed species as its 
management standard is relevant to our weighing of the benefits of 
inclusion of a particular area in the critical habitat designation. The 
following factors are considered when we evaluate the management and 
protection provided by such plans:
    (1) Whether the plan is complete and provides for the conservation 
and protection of the physical and biological features essential to the 
conservation of the species;
    (2) Whether there is a reasonable expectation that the conservation 
management strategies and actions will be implemented for the 
foreseeable future, based on past practices, written guidance, or 
regulations; and
    (3) Whether the plan provides conservation strategies and measures 
consistent with currently accepted principles of conservation biology.
    As discussed in detail below, we believe that the Western Riverside 
County MSHCP provides for the conservation of Berberis nevinii and its 
physical and biological features. We have determined that the benefits 
of excluding essential habitat for B. nevinii covered by this plan, 
based on our partnership with private land owners and local, County, 
and State jurisdictions, whose commitment to benefiting the species is 
evident by the management mandated by the MSHCP, outweighs the benefit 
of including these lands in a critical habitat designation. Furthermore 
we have determined that exclusion of these lands will not result in the 
extinction of B. nevinii.
Western Riverside County Multiple Species Habitat Conservation Plan 
(MSHCP)
    We are excluding from the final critical habitat designation for 
Berberis nevinii all non-Federal lands (approximately 167 ac (67 ha)) 
covered by the Western Riverside County MSHCP under section 4(b)(2) of 
the Act. The non-Federal lands that we are excluding include: 
Approximately 39 ac (16 ha) of private lands on the south flank of Big 
Oak Mountain (Subunit 1C); approximately 5 ac (2 ha) of private lands 
directly north of Vail Lake (Subunit 1D); approximately 112 ac (45 ha) 
of private lands to the south of Vail Lake and on the Vail Lake 
peninsula, which is the area with the largest known occurrence of B. 
nevinii (Subunit 1E); and approximately 11 ac (4 ha) of private lands 
north of Temecula Creek and southeast of Vail Lake (Subunit 1F).
    The MSHCP is a large-scale, multi-jurisdictional HCP encompassing 
1.26-million ac (510,000 ha) in Western Riverside County. The MSHCP 
addresses 146 listed and unlisted ``covered species,'' including 
Berberis nevinii. Participants in the Western Riverside County MSHCP 
include 14 cities in Western Riverside County; the County of Riverside, 
including the Riverside County Flood Control and Water Conservation 
Agency (County Flood Control), Riverside County Transportation 
Commission, Riverside County Parks and Open Space District, and 
Riverside County Waste Department; California Department of

[[Page 8432]]

Parks and Recreation; and the California Department of Transportation 
(Caltrans). The Western Riverside County MSHCP was designed to 
establish a multi-species conservation program that minimizes and 
mitigates the expected loss of habitat and the incidental take of 
covered species. On June 22, 2004, the Service issued an incidental 
take permit (TE-088609-0) under section 10(a)(1)(B) of the Act to 22 
permittees under the MSHCP for a period of 75 years.
    The Western Riverside County MSHCP will establish approximately 
153,000 ac (61,916 ha) of new conservation lands (Additional Reserve 
Lands) to complement the approximate 347,000 ac (140,426 ha) of 
existing natural and open space areas designated by the MSHCP as 
Public-Quasi-Public (PQP) lands. These PQP lands include those under 
Federal ownership, primarily managed by the USFS and BLM, and also 
permittee-owned open-space areas (e.g., State Parks, County Flood 
Control, and County Park lands). In this final rule, we are designating 
as critical habitat Federally-owned PQP lands. Collectively, the 
Additional Reserve Lands and PQP lands form the overall MSHCP 
Conservation Area in which ``covered species,'' including Berberis 
nevinii, will be protected. The precise configuration of the 153,000 ac 
(61,916 ha) of Additional Reserve Lands is not mapped or precisely 
identified in the MSHCP, but rather is based on textual descriptions of 
a Conceptual Reserve Design within the bounds of a 310,000 ac (125,453 
ha) ``Criteria Area'' that is interpreted as implementation of the 
MSHCP proceeds.
    All private lands that we are excluding from the final critical 
habitat designation under section 4(b)(2) of the Act are within the 
MSHCP's Criteria Area and are targeted for inclusion within the MSHCP 
Conservation Area as potential Additional Reserve Lands. In addition to 
the lands we have determined to be essential to the conservation of the 
species, conservation objectives in the MSHCP for Berberis nevinii 
provide for conservation and management of at least 8,000 ac (3,238 ha) 
of suitable habitat (defined as chaparral and Riversidean alluvial fan 
sage scrub between 984 and 2,162 ft (300 and 659 m) in elevation) in 
the Vail Lake area. As discussed in the Background section of the 
proposed rule (72 FR 5552; February 6, 2007), we were unable to 
accurately quantify the exact number of B. nevinii occurrences or 
plants within the MSHCP Plan Area (72 FR 5555). Nevertheless, all 
essential habitat within the MSHCP area are either within existing PQP 
lands or proposed Additional Reserve Lands. The goal of the MSHCP is to 
conserve all known locations of B. nevinii in the Agua Tibia/Vail Lake 
area and the Soboba Badlands, which includes all areas and features 
that we have determined to be essential to the conservation of the 
species (Dudek 2002, p. 9-117, Table 9-2).
    Furthermore, all private lands that we are excluding from final 
critical habitat designation are within the MSHCP's Survey Area and 
will receive conservation benefits under the Additional Survey Needs 
and Procedures policy. The MSHCP requires surveys for Berberis nevinii 
as part of the project review process for public and private projects 
where suitable habitat is present within a defined boundary of the 
Criteria Area (see Criteria Area Species Survey Area Map, Figure 6-2 of 
the MSHCP, Volume I). For locations with positive survey results, 90 
percent of those portions of the property that provide long-term 
conservation value for the species will be avoided until it is 
demonstrated that the overall conservation objectives for the species 
have been met. Therefore, new occurrences that are found as a result of 
survey efforts and are subsequently determined to be important to the 
overall conservation of the species may be included in the Additional 
Reserve Lands.
    Numerous processes are incorporated into the MSHCP that allow for 
Service oversight of MSHCP implementation. These processes include: 
Annual reporting requirements; joint review of projects proposed within 
the Criteria Area; participation on the Reserve Management Oversight 
Committee; and a Reserve Assembly Accounting Process. The Reserve 
Assembly Accounting Process will be implemented to ensure that the 
conservation of lands occurs in rough proportionality to development, 
that lands are assembled in the configuration as generally described in 
the MSHCP, and that conservation goals and objectives are being 
achieved (Service 2004, pp. 19-26). The Service is also responsible for 
reviewing Determinations of Biologically Equivalent or Superior 
Preservation that are proposed under the Protection of Species 
Associated with Riparian/Riverine Areas and Vernal Pools policy and for 
reviewing minor amendment projects for consistency with the 
requirements of the MSHCP (Service 2004, pp. 19-26).
    As stated in the final listing rule (63 FR 54956, October 13, 
1998), threats to the species and its habitat include urban 
development, off-road vehicle use, human recreation (e.g., horseback 
riding), highway projects, fire management strategies (suppression 
measures, brush clearing) that alter natural fire processes, and the 
introduction of invasive, nonnative plants that may compete with 
Berberis nevinii or contribute to combustible fuel loads (63 FR 54961). 
As described above, the MSHCP provides enhancement of habitat by 
removing or reducing threats to this species and the physical and 
biological features essential to the conservation of the species. This 
MSHCP preserves habitat that supports identified core populations of 
this species and, therefore, provides for recovery of this species.

Benefits of Exclusion Outweigh the Benefits of Inclusion

    As discussed in the Benefits of Designating Critical Habitat 
section and in the Service Response to Comment 6 above, we believe that 
the regulatory benefit of designating critical habitat on private lands 
covered by the Western Riverside County MSHCP would be low and may 
hinder the effective implementation of the plan. The Western Riverside 
County MSHCP addresses conservation issues from a coordinated, 
integrated perspective and will achieve better Berberis nevinii 
conservation than would be achieved through multiple site-by-site, 
project-by-project, section 7 consultations involving consideration of 
critical habitat. Furthermore, biological opinions for plants do not 
include an incidental take statement and, therefore, contain no 
mandatory reasonable and prudent measures issued to minimize the effect 
of any predicted loss of plants. Any measures taken to minimize effects 
to the plant species or its habitat are voluntary. The Western 
Riverside County MSHCP provides for the proactive monitoring and 
management of conserved lands (as previously described), reducing known 
threats to the B. nevinii and its habitat.
    Conservation and management of Berberis nevinii habitat is 
essential to the survival and recovery of this species. Such 
conservation needs are typically not addressed through the application 
of the statutory prohibition on adverse modification or destruction of 
critical habitat. The Western Riverside County MSHCP provides as much 
or more conservation benefit to the species than a consultation for 
critical habitat designation conducted under the standards required by 
the Ninth Circuit in the Gifford Pinchot decision. Furthermore, 
educational benefits that may be derived from a critical habitat 
designation are low in

[[Page 8433]]

this case and largely redundant to the educational benefits achieved 
through the significant public, State, and local government input 
solicited and received during the development of the Western Riverside 
County MSHCP.
    We have developed close partnerships with the 22 MSHCP permittees 
through the development of this regional HCP that incorporates 
appropriate protections and management of the physical and biological 
features essential to the conservation of this species. Those 
protections are consistent with the mandates under section 7 of the Act 
to avoid adverse modification or destruction of critical habitat and go 
beyond that prohibition by including active management and protection 
of essential habitat areas. By excluding these lands from designation, 
we are eliminating a largely redundant layer of regulatory review for a 
limited set of projects on non-Federal lands that are addressed by the 
MSHCP, and we are helping to preserve our ongoing partnerships with the 
permittees and encouraging new partnerships with other landowners and 
jurisdictions. Those partnerships, and the landscape level, multiple-
species conservation planning efforts they promote, are critical for 
the conservation of Berberis nevinii. Designating critical habitat on 
non-Federal lands within the Western Riverside County MSHCP could have 
a detrimental effect to our partnerships with the 22 MSHCP permittees 
and could be a significant disincentive to the establishment of future 
partnerships and HCPs with other partners.
    We have reviewed and evaluated the exclusion of 167 ac (67 ha) of 
non-Federal lands that meet the definition of critical habitat within 
the Western Riverside County MSHCP plan area from the designation of 
final critical habitat for Berberis nevinii and have determined that 
the benefits of excluding these lands in subunits 1C, 1D, 1E, and 1F 
outweigh the benefits of including them. As discussed above, the MSHCP 
will provide for significant preservation and management of the 
physical and biological features essential to B. nevinii and will help 
reach the recovery goals for this species.

Exclusion Will Not Result in Extinction of the Species

    In keeping with our analysis and conclusion detailed in our 
biological opinion for the Western Riverside County MSHCP (Service 
2004, p. 334), we do not believe that the exclusion of non-Federal 
lands that meet the definition of critical habitat within the Western 
Riverside County MSHCP plan area from the final designation of critical 
habitat for Berberis nevinii will result in the extinction of the 
species. The MSHCP provides protection and management, in perpetuity, 
of lands within subunits 1C, 1D, 1E, and 1F, including the physical and 
biological features essential to the conservation of B. nevinii. In 
addition, the jeopardy standard of section 7 of the Act and routine 
implementation of conservation measures through the section 7 process 
also provide assurances that the species will not go extinct.

Economic Analysis

    Section 4(b)(2)of the Act requires us to designate critical habitat 
on the basis of the best scientific information available and to 
consider economic and other relevant impacts of designating a 
particular area as critical habitat. Section 4(b)(2) of the Act allows 
the Secretary to exclude areas from critical habitat for economic 
reasons if the Secretary determines that the benefits of such exclusion 
exceed the benefits of designating the area as critical habitat. 
However, this exclusion cannot occur if it will result in the 
extinction of the species concerned.
    Following the publication of the proposed critical habitat 
designation, we conducted an economic analysis to estimate the 
potential economic effect of the designation. The draft analysis (dated 
September 4, 2007) was made available for public review between October 
17, 2007 and November 16, 2007 (72 FR 58793). We did not receive any 
public comments related to the draft economic analysis. A final 
analysis of the potential economic effects of the designation was 
developed taking into consideration any relevant new information.
    The primary purpose of the economic analysis is to estimate the 
potential economic impacts associated with the designation of critical 
habitat for Berberis nevinii. This information is intended to assist 
the Secretary in making decisions about whether the benefits of 
excluding particular areas from the designation outweigh the benefits 
of including those areas in the designation. This economic analysis 
considers the economic efficiency effects that may result from the 
designation, including habitat protections that may be co-extensive 
with the listing of the species. It also addresses distribution of 
impacts, including an assessment of the potential effects on small 
entities and the energy industry. This information can be used by the 
Secretary to assess whether the effects of the designation might unduly 
burden a particular group or economic sector.
    The economic analysis focuses on the direct and indirect costs of 
the rule. However, economic impacts to land use activities can exist in 
the absence of critical habitat. These impacts may result from, for 
example, section 7 consultations under the jeopardy standard, local 
zoning laws, State and natural resource laws, and enforceable 
management plans and best management practices applied by other State 
and Federal agencies.
    Potential costs associated with invasive, nonnative plant species 
management, recreation management, fire management, and section 7 
consultations comprised all of the quantified impacts in the areas we 
are designating as critical habitat. The Federal government is expected 
to bear the entire cost of the anticipated upper-bound future impacts, 
with the following anticipated split among agencies: BLM, 61 percent; 
USFS, 35 percent; Service, 4 percent. Similarly, we anticipate that 
Subunit 1A (Big Oak Mountain Summit), which is managed by BLM, will 
account for the majority (62 percent) of the total upper-bound future 
conservation impacts.
    Potential costs associated with changes to the management of Vail 
Lake comprised the majority of the total quantified upper-bound future 
impacts in areas we are excluding from the designation of critical 
habitat under section 4(b)(2) of the Act. This cost would have been 
borne entirely by Rancho California Water District (RCWD), the entity 
that manages Vail Lake, and is based on the scenario that RCWD would 
not be able to implement the preferred alternative (Hybrid 1 
Alternative) of their Regional Integrated Resources Plan, which calls 
for additional water storage in Vail Lake so as to cost-effectively 
meet the future municipal and agricultural demands of customers. Other 
impacts in areas excluded from the final designation of critical 
habitat were based on the costs of acquisition, management, biological 
monitoring, and administration of land to be acquired under the Western 
Riverside County MSHCP, or impacts associated with development 
opportunities on private land within the Plan Area for the MSHCP.
    We estimated potential economic effects of actions related to the 
conservation of Berberis nevinii under sections 4, 7, and 10 of the Act 
and those attributable to designating critical habitat to be 
approximately $169,000 to $172,000 in undiscounted dollars over the 
next 20 years in areas we are designating as final critical habitat 
(subunits 1A and 1B). Discounted future costs were estimated to be

[[Page 8434]]

approximately $136,000 to $139,000 ($10,000 annualized) at a 3 percent 
discount rate or approximately $107,000 to $110,000 ($11,000 
annualized) at a 7 percent discount rate for activities in subunits 1A 
and 1B. We estimated potential economic effects to be approximately 
$1.7 to $433.5 million in undiscounted dollars over the next 20 years 
(or 40 years for impacts related to management of Vail Lake) in areas 
we are excluding from final critical habitat under section 4(b)(2) of 
the Act based on the Western Riverside County MSHCP (Subunits 1C 
through 1F). Discounted future costs were estimated at approximately 
$1.2 to $232.5 million at a 3 percent discount rate ($82,000 to $10.1 
million annualized) or approximately $0.9 to $118.1 million at a 7 
percent discount rate ($81,000 to $8.9 million annualized) for 
activities in subunits 1C, 1D, 1E, and 1F. The latter impacts would 
only occur if the areas we proposed for exclusion were instead 
designated as critical habitat for B. nevinii. Note that these cost 
estimates were based on revisions to the proposed designation of 
critical habitat subunits 1B, 1D, and 1E as described in the notice of 
availability for the DEA published on October 17, 2007 (72 FR 58793).
    The Service also completed a final economic analysis (FEA) of the 
designation of critical habitat for Berberis nevinii that updates the 
DEA by removing impacts that were not considered probable or likely to 
occur and by adding an estimate of the costs associated solely with the 
designations of critical habitat for B. nevinii (incremental impacts). 
The FEA estimates that the potential economic effects of actions 
relating to the conservation of B. nevinii, including costs associated 
with sections 4, 7, and 10 of the Act, and including those attributable 
to the designation of critical habitat, will be $1.80 million 
(undiscounted) over the next 20 years. The present value of these 
impacts, applying a 3 percent discount rate, is $1.34 million; or $0.95 
million, using a discount rate of 7 percent. This is a reduction from 
the impacts estimated in the DEA of about $0.15 million (undiscounted) 
over the next 20 years. The FEA also estimates total costs attributable 
solely to the designation of critical habitat for B. nevinii 
(incremental costs) to be $3,593 (present value at a three percent 
discount rate). When critical habitat for this species is designated, 
it is anticipated that the consultation with the USFS regarding their 
current Land Management Plan will be reinitiated, resulting in 
administrative impacts to the USFS. After consideration of the impacts 
under section 4(b)(2) of the Act, we have not excluded any areas from 
the final critical habitat designations based on the identified 
economic impacts.
    The final economic analysis is available at http://www.regulations.gov and http://www.fws.gov/carlsbad or upon request 
from the Carlsbad Fish and Wildlife Office (see ADDRESSES section).

Required Determinations

Regulatory Planning and Review

    In accordance with Executive Order 12866 (E.O. 12866), we evaluate 
four parameters in determining whether a rule is significant. If any 
one of the following four parameters are met, the Office of Management 
and Budget (OMB) will designate that rule as significant under E.O. 
12866:
    (a) The rule would have an annual economic effect of $100 million 
or more or adversely affect an economic sector, productivity, jobs, the 
environment, or other units of the government;
    (b) The rule would create inconsistencies with other Federal 
agencies' actions;
    (c) The rule would materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients; 
or
    (d) The rule would raise novel legal or policy issues. If OMB 
requests to informally review a rule designating critical habitat for a 
species, we consider that rule to raise novel legal and policy issues. 
Because no other Federal agencies designate critical habitat, the 
designation of critical habitat will not create inconsistencies with 
other agencies' actions. We use the economic analysis of the critical 
habitat designation to evaluate the potential effects related to the 
other parameters of E.O. 12866 and to make a determination as to 
whether the regulation may be significant under parameter (a) or (c) 
listed above.
    Based on the economic analysis of the critical habitat designation, 
we have determined that the designation of critical habitat for 
Berberis nevinii will not result in an annual effect on the economy of 
$100 million or more or affect the economy in a material way. Based on 
previous critical habitat designations and the economic analysis, we 
believe this rule will not materially affect entitlements, grants, user 
fees, loan programs, or the rights and obligations of their recipients. 
OMB has not requested to informally review this rule, and thus this 
action does not raise novel legal or policy issues. In accordance with 
the provisions of E.O. 12866, this rule is not considered significant.
    Executive Order 12866 directs Federal agencies issuing regulations 
to evaluate regulatory alternatives (Office of Management and Budget, 
Circular A-4, September 17, 2003). Under Circular A-4, once an agency 
determines that the Federal regulatory action is appropriate, the 
agency must consider alternative regulatory approaches. Because the 
determination of critical habitat is a statutory requirement under the 
Act, we must evaluate alternative regulatory approaches, where 
feasible, when issuing a designation of critical habitat.
    In developing our designations of critical habitat, we consider 
economic impacts, impacts to national security, and other relevant 
impacts under section 4(b)(2) of the Act. Based on the discretion 
allowable under this provision, we may exclude any particular area from 
the designation of critical habitat providing that the benefits of such 
exclusion outweigh the benefits of specifying the area as critical 
habitat and that such exclusion would not result in the extinction of 
the species. We believe that the evaluation of the inclusion or 
exclusion of particular areas, or a combination of both, constitutes 
our regulatory alternative analysis for designations.

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

    Under the Regulatory Flexibility Act (RFA; 5 U.S.C. 601 et seq., as 
amended by the Small Business Regulatory Enforcement Fairness Act 
(SBREFA) of 1996), whenever an agency must publish a notice of 
rulemaking for any proposed or final rule, it must prepare and make 
available for public comment a regulatory flexibility analysis that 
describes the effects of the rule on small entities (small businesses, 
small organizations, and small government jurisdictions). However, no 
regulatory flexibility analysis is required if the head of the agency 
certifies the rule will not have a significant economic impact on a 
substantial number of small entities. SBREFA amended RFA to require 
Federal agencies to provide a statement of the factual basis for 
certifying that the rule will not have a significant economic impact on 
a substantial number of small entities. In this final rule, we are 
certifying that the critical habitat designation for Berberis nevinii 
will not have a significant economic impact on a substantial number of 
small entities. The following discussion explains our rationale.
    According to the Small Business Administration (SBA), small 
entities

[[Page 8435]]

include small organizations, such as independent nonprofit 
organizations; small governmental jurisdictions, including school 
boards and city and town governments that serve fewer than 50,000 
residents; as well as small businesses. Small businesses include 
manufacturing and mining concerns with fewer than 500 employees, 
wholesale trade entities with fewer than 100 employees, retail and 
service businesses with less than $5 million in annual sales, general 
and heavy construction businesses with less than $27.5 million in 
annual business, special trade contractors doing less than $11.5 
million in annual business, and agricultural businesses with annual 
sales less than $750,000. To determine if potential economic impacts to 
these small entities are significant, we consider the types of 
activities that might trigger regulatory impacts under this rule, as 
well as the types of project modifications that may result. In general, 
the term ``significant economic impact'' is meant to apply to a typical 
small business firm's business operations.
    To determine if the rule could significantly affect a substantial 
number of small entities, we consider the number of small entities 
affected within particular types of economic activities (e.g., housing 
development, grazing, oil and gas production, timber harvesting). We 
apply the ``substantial number'' test individually to each industry to 
determine if certification is appropriate. However, the SBREFA does not 
explicitly define ``substantial number'' or ``significant economic 
impact.'' Consequently, to assess whether a ``substantial number'' of 
small entities is affected by this designation, this analysis considers 
the relative number of small entities likely to be impacted in an area. 
In some circumstances, especially with critical habitat designations of 
limited extent, we may aggregate across all industries and consider 
whether the total number of small entities affected is substantial. In 
estimating the number of small entities potentially affected, we also 
consider whether their activities have any Federal involvement.
    Designation of critical habitat only affects activities conducted, 
funded, or permitted by Federal agencies. Some kinds of activities are 
unlikely to have any Federal involvement and so will not be affected by 
critical habitat designation. In areas where the species is present, 
Federal agencies already are required to consult with us under section 
7 of the Act on activities they fund, permit, or implement that may 
affect Berberis nevinii (see Section 7 Consultation section). Federal 
agencies also must consult with us if their activities may affect 
critical habitat. Designation of critical habitat, therefore, could 
result in an additional economic impact on small entities due to the 
requirement to reinitiate consultation for ongoing Federal activities 
(see Application of the ``Adverse Modification'' Standard section).
    The FEA examined the potential for Berberis nevinii conservation 
efforts to affect small entities. This analysis was based on the 
estimated impacts associated with the listing of B. nevinii and 
proposed critical habitat designation and evaluated the potential for 
economic impacts related to transportation projects; land development; 
management of Vail Lake; recreation; fire management; and invasive, 
nonnative plant species management. The FEA also estimated the costs 
associated solely with the designation of critical habitat for B. 
nevinii (incremental impacts). Overall, the FEA estimates that the 
potential economic effects of actions relating to the conservation of 
B. nevinii, including costs associated with sections 4, 7, and 10 of 
the Act, and including those attributable to the designation of 
critical habitat, will be $1.80 million (undiscounted) over the next 20 
years. The present value of these impacts, applying a 3 percent 
discount rate, is $1.34 million; or $0.95 million, using a discount 
rate of 7 percent. This is a reduction from the impacts estimated in 
the DEA of about $0.15 million (undiscounted) over the next 20 years. 
The FEA also estimates total costs attributable solely to the 
designation of critical habitat for B. nevinii (incremental costs) to 
be $3,593 (present value at a three percent discount rate). Impacts to 
small entities are not anticipated because the final designation of 
critical habitat for B. nevinii includes only Federal lands, and costs 
associated with modifications to activities will be borne entirely by 
the Federal government (USFS or BLM) as we do not anticipate any 
applicants would be involved in consultations regarding impacts to the 
designated critical habitat (please refer to section Appendix B of the 
FEA for a full discussion of potential economic impacts to small 
entities). Transportation projects that are reasonably foreseeable 
within the 20-year analysis period are not anticipated to impact areas 
within designated critical habitat and were not considered.
    In summary, we have considered whether this designation would 
result in a significant economic effect on a substantial number of 
small entities. The entire designated critical habitat is owned and 
managed by the Federal government, which is not considered a small 
business entity. Therefore, based on the above reasoning and currently 
available information, we certify that this rule will not have a 
significant economic impact on a substantial number of small entities. 
A regulatory flexibility analysis is not required.

Small Business Regulatory Enforcement Fairness Act (5 U.S.C. 801 et 
seq.)

    Under SBREFA, this rule is not a major rule. Our detailed 
assessment of the economic effects of this designation is described in 
the economic analysis. Based on the effects identified in the economic 
analysis, we believe that this rule will not have an annual effect on 
the economy of $100 million or more, will not cause a major increase in 
costs or prices for consumers, and will not have significant adverse 
effects on competition, employment, investment, productivity, 
innovation, or the ability of U.S.-based enterprises to compete with 
foreign-based enterprises. Refer to the final economic analysis for a 
discussion of the effects of this determination (see ADDRESSES for 
information on obtaining a copy of the final economic analysis).

Executive Order 13211--Energy Supply, Distribution, or Use

    On May 18, 2001, the President issued an Executive Order (E.O. 
13211; Actions Concerning Regulations That Significantly Affect Energy 
Supply, Distribution, or Use) on regulations that significantly affect 
energy supply, distribution, and use. E.O. 13211 requires agencies to 
prepare Statements of Energy Effects when undertaking certain actions. 
OMB has provided guidance for implementing this Executive Order that 
outlines nine outcomes that may constitute ``a significant adverse 
effect'' when compared without the regulatory action under 
consideration. The final economic analysis finds that none of these 
criteria are relevant to this analysis. Thus, based on information in 
the economic analysis, energy-related impacts associated with B. 
nevinii conservation activities within the final critical habitat 
designation are not expected. Therefore, this action is not a 
significant energy action, and no Statement of Energy Effects is 
required.

Unfunded Mandates Reform Act

    In accordance with the Unfunded Mandates Reform Act (2 U.S.C. 1501 
et seq.), we make the following findings:
    (a) This rule will not produce a Federal mandate. In general, a 
Federal

[[Page 8436]]

mandate is a provision in legislation, statute, or regulation that 
would impose an enforceable duty upon State, local, or Tribal 
governments, or the private sector, and includes both ``Federal 
intergovernmental mandates'' and ``Federal private sector mandates.'' 
These terms are defined in 2 U.S.C. 658(5)-(7). ``Federal 
intergovernmental mandate'' includes a regulation that ``would impose 
an enforceable duty upon State, local, or [T]ribal governments'' with 
two exceptions. It excludes ``a condition of Federal assistance.'' It 
also excludes ``a duty arising from participation in a voluntary 
Federal program,'' unless the regulation ``relates to a then-existing 
Federal program under which $500,000,000 or more is provided annually 
to State, local, and [T]ribal governments under entitlement 
authority,'' if the provision would ``increase the stringency of 
conditions of assistance'' or ``place caps upon, or otherwise decrease, 
the Federal Government's responsibility to provide funding,'' and the 
State, local, or Tribal governments ``lack authority'' to adjust 
accordingly. At the time of enactment, these entitlement programs were: 
Medicaid; AFDC work programs; Child Nutrition; Food Stamps; Social 
Services Block Grants; Vocational Rehabilitation State Grants; Foster 
Care, Adoption Assistance, and Independent Living; Family Support 
Welfare Services; and Child Support Enforcement. ``Federal private 
sector mandate'' includes a regulation that ``would impose an 
enforceable duty upon the private sector, except (i) a condition of 
Federal assistance or (ii) a duty arising from participation in a 
voluntary Federal program.''
    The designation of critical habitat does not impose a legally 
binding duty on non-Federal Government entities or private parties. 
Under the Act, the only regulatory effect is that Federal agencies must 
ensure that their actions do not destroy or adversely modify critical 
habitat under section 7. While non-Federal entities that receive 
Federal funding, assistance, or permits, or that otherwise require 
approval or authorization from a Federal agency for an action, may be 
indirectly impacted by the designation of critical habitat, the legally 
binding duty to avoid destruction or adverse modification of critical 
habitat rests squarely on the Federal agency. Furthermore, to the 
extent that non-Federal entities are indirectly impacted because they 
receive Federal assistance or participate in a voluntary Federal aid 
program, the Unfunded Mandates Reform Act would not apply, nor would 
critical habitat shift the costs of the large entitlement programs 
listed above onto State governments.
    (b) We do not believe that this rule will significantly or uniquely 
affect small governments because it will not produce a Federal mandate 
of $100 million or greater in any year, that is, it is not a 
``significant regulatory action'' under the Unfunded Mandates Reform 
Act. Furthermore, all lands designated as critical habitat in this rule 
are managed by BLM and USFS, which are not considered small entities or 
small governments. The designation of critical habitat imposes no 
obligations on State or local governments. As such, a Small Government 
Agency Plan is not required.

Takings

    In accordance with E.O. 12630 (Government Actions and Interference 
with Constitutionally Protected Private Property Rights), we have 
analyzed the potential takings implications of designating 
approximately 6 ac (3 ha) of lands in Riverside County, California, as 
critical habitat for Berberis nevinii in a takings implications 
assessment. The takings implications assessment concludes that this 
final designation of critical habitat does not pose significant takings 
implications for lands within or affected by the designation.

Federalism

    In accordance with E.O. 13132 (Federalism), this final rule does 
not have significant Federalism effects. A Federalism assessment is not 
required. In keeping with Department of the Interior and Department of 
Commerce policy, we requested information from, and coordinated 
development of, this final critical habitat designation with 
appropriate State resource agencies in California. We received one 
comment from a local agency during the public comment period for the 
proposed critical habitat rule. This commenter supported the proposed 
exclusion of private lands within the boundaries of the Western 
Riverside County MSHCP plan area from the designation of final critical 
habitat, but was concerned that this area could still be included in 
the final designation if the Secretary determined that the benefits of 
including these lands outweigh the benefits of excluding them. We have 
determined that the benefits of excluding these private lands covered 
by the Western Riverside County MSHCP outweigh the benefits of 
designating critical habitat in these areas, and that this exclusion 
will not result in the extinction of Berberis nevinii; therefore, we 
have excluded all private lands from this final designation (please 
refer to the Public Comments section of this final rule for a detailed 
discussion of this comment and our response).
    The entire designated critical habitat is owned and managed by the 
Federal government and, therefore, is unlikely to have any incremental 
impact on State and local governments and their activities. The 
designation may have some benefit to these governments because the 
areas that contain the physical and biological features essential to 
the conservation of the species are more clearly defined, and the PCEs 
necessary to support the life processes of the species are specifically 
identified. This information does not alter where and what federally 
sponsored activities may occur. However, it may assist local 
governments in long-range planning (rather than having them wait for 
case-by-case section 7 consultations to occur).

Civil Justice Reform

    In accordance with E.O. 12988 (Civil Justice Reform), the Office of 
the Solicitor has determined that the rule does not unduly burden the 
judicial system and that it meets the requirements of sections 3(a) and 
3(b)(2) of the Order. We are designating critical habitat in accordance 
with the provisions of the Act. This final rule uses standard property 
descriptions and identifies the physical and biological features 
essential to the conservation of the species within the designated 
areas to assist the public in understanding the habitat needs of 
Berberis nevinii.

Paperwork Reduction Act of 1995

    This rule does not contain any new collections of information that 
require approval by OMB under the Paperwork Reduction Act of 1995 (44 
U.S.C. 3501 et seq.). This rule will not impose recordkeeping or 
reporting requirements on State or local governments, individuals, 
businesses, or organizations. An agency may not conduct or sponsor, and 
a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.

National Environmental Policy Act

    It is our position that, outside the jurisdiction of the Circuit 
Court of the United States for the Tenth Circuit, we do not need to 
prepare environmental analyses as defined by NEPA (42 U.S.C. 4321 et 
seq.) in connection with designating critical habitat under the Act. We 
published a notice outlining our reasons for this determination in the

[[Page 8437]]

Federal Register on October 25, 1983 (48 FR 49244). This assertion was 
upheld by the Circuit Court of the United States for the Ninth Circuit 
(Douglas County v. Babbitt, 48 F.3d 1495 (9th Cir. 1995), cert. denied 
516 U.S. 1042 (1996)).

Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, 
Government-to-Government Relations with Native American Tribal 
Governments (59 FR 22951), E.O. 13175, and the Department of the 
Interior's manual at 512 DM 2, we readily acknowledge our 
responsibility to communicate meaningfully with recognized Federal 
Tribes on a government-to-government basis. In accordance with 
Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, 
Federal Tribal Trust Responsibilities, and the Endangered Species Act), 
we readily acknowledge our responsibilities to work directly with 
Tribes in developing programs for healthy ecosystems, to acknowledge 
that Tribal lands are not subject to the same controls as Federal 
public lands, to remain sensitive to Indian culture, and to make 
information available to Tribes. We have determined that there are no 
Tribal lands that meet the definition of critical habitat for Berberis 
nevinii. Therefore, we have not designated critical habitat for B. 
nevinii on Tribal lands.

References Cited

    A complete list of all references cited in this rulemaking is 
available on the Internet at http://www.regulations.gov and http://www.fws.gov/carlsbad/.

Author(s)

    The primary authors of this rulemaking are staff of the Nevada Fish 
and Wildlife Office, Reno, Nevada, and the Carlsbad Fish and Wildlife 
Office, Carlsbad, California.

List of Subjects in 50 CFR Part 17

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

Regulation Promulgation

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

PART 17--[AMENDED]

0
1. The authority citation for part 17 continues to read as follows:

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

0
2. In Sec.  17.12(h), revise the entry for ``Berberis nevinii'' under 
``FLOWERING PLANTS'' in the List of Endangered and Threatened Plants to 
read as follows:


Sec.  17.12   Endangered and threatened plants.

* * * * *
    (h) * * *

--------------------------------------------------------------------------------------------------------------------------------------------------------
                         Species
----------------------------------------------------------    Historical range            Family             Status         When     Critical   Special
          Scientific name                Common name                                                                       listed    habitat     rules
--------------------------------------------------------------------------------------------------------------------------------------------------------
         Flowering Plants
 
                                                                      * * * * * * *
Berberis nevinii..................  Nevin's barberry.....  U.S.A. (CA)..........  Berberidaceae........  E.............        648  17.96(a).
 
                                                                      * * * * * * *
--------------------------------------------------------------------------------------------------------------------------------------------------------


0
3. Amend Sec.  17.96(a) as follows:
0
a. Add ``Family Berberidaceae'' in alphabetical order of the family 
names; and
0
b. Add a critical habitat entry for ``Berberis nevinii (Nevin's 
barberry)'' under Family Berberidaceae to read as set forth below.


Sec.  17.96   Critical habitat--plants.

    (a) Flowering plants.
* * * * *
    Family Berberidaceae: Berberis nevinii (Nevin's barberry)
    (1) Critical habitat is depicted for Riverside County, California, 
in the text and on the map below.
    (2) The primary constituent elements of critical habitat for 
Berberis nevinii are the habitat components that provide:
    (i) Low-gradient (i.e., nearly flat) canyon floors, washes and 
adjacent terraces, and mountain ridge/summits, or eroded, generally 
northeast to northwest-facing mountain slopes and banks of dry washes 
typically of less than 70 percent slope that provide space for plant 
establishment and growth;
    (ii) Well-drained alluvial soils primarily of non-marine 
sedimentary origin, such as Temecula or sandy arkose soils; soils of 
the Cajalco-Temescal-Las Posas soil association formed on gabbro 
(igneous) or latite (volcanic) bedrock; metasedimentary substrates 
associated with springs or seeps; and heavy adobe/gabbro-type soils 
derived from metavolcanic geology (Mesozoic basic intrusive rock) that 
provide the appropriate nutrients and space for growth and 
reproduction; and
    (iii) Scrub (chaparral, coastal sage, alluvial, riparian) and 
woodland (oak, riparian) vegetation communities between 900 and 3,000 
feet (275 and 915 meters) in elevation that provide the appropriate 
cover for growth and reproduction.
    (3) Critical habitat does not include manmade structures (such as 
buildings, aqueducts, runways, roads, and other paved areas) and the 
land on which they are located existing within the legal boundaries on 
the effective date of this rule.
    (4) Critical habitat map. Data layers defining map units were 
created on a base of USGS 1:24,000 maps and critical habitat units were 
then mapped using a 100-meter grid to establish Universal Transverse 
Mercator (UTM) North American Datum 1927 (NAD 27) coordinates which, 
when connected, provided the boundaries of the unit. All acreage 
calculations were performed using GIS.
    (5) Unit 1: Agua Tibia/Vail Lake Unit, Riverside County, 
California.
    (i) Subunit 1A: Big Oak Mountain Summit. From USGS 1:24,000 
quadrangle Sage, lands bounded by the following UTM NAD27 coordinates 
(E, N): 502153, 3708505; 502157, 3708510; 502167, 3708519; 502179, 
3708526; 502192, 3708532; 502205, 3708534; 502219, 3708535; 502233, 
3708533; 502246, 3708528; 502258, 3708522; 502269, 3708513; 502278, 
3708503; 502286, 3708491; 502291, 3708478; 502294, 3708465; 502294, 
3708451; 502292, 3708437; 502288, 3708424; 502281, 3708412; 502272, 
3708401; 502262, 3708392; 502250, 3708384; 502237, 3708379; 502224, 
3708376; 502210, 3708376; 502196, 3708378; 502183, 3708382; 502171, 
3708389;

[[Page 8438]]

502160, 3708398; 502151, 3708408; 502143, 3708420; 502138, 3708432; 
502135, 3708446; 502135, 3708460; 502137, 3708474; 502141, 3708487; 
502148, 3708499; 502153, 3708505; thence returning to 502153, 3708505.
    (ii) Subunit 1B: Agua Tibia Mountain Foothills. From USGS 1:24,000 
quadrangle Vail Lake, lands bounded by the following UTM NAD27 
coordinates (E, N): 504200, 3702900; 504300, 3702900; 504300, 3702800; 
504200, 3702800; thence returning to 504200, 3702900.
    (iii) Note: Map of Unit 1 follows:

[[Page 8439]]

[GRAPHIC] [TIFF OMITTED] TR13FE08.000


[[Page 8440]]


BILLING CODE 4310-55-C
* * * * *

    Dated: January 31, 2008.
Lyle Laverty,
Assistant Secretary for Fish and Wildlife and Parks.
[FR Doc. 08-523 Filed 1-12-08; 8:45 am]
BILLING CODE 4310-55-P