Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for the Endangered Monardella linoides, 67956-67985 [05-22190]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 70, Number 216 (Wednesday, November 9, 2005)]
[Proposed Rules]
[Pages 67956-67985]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-22190]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AT92


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for the Endangered Monardella linoides ssp. viminea 
(Willowy Monardella)

AGENCY: Fish and Wildlife Service, Interior.

ACTION: Proposed rule.

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SUMMARY: We, the U.S. Fish and Wildlife Service (Service), propose to 
designate critical habitat for the endangered Monardella linoides ssp. 
viminea (willowy monardella) under the Endangered Species Act of 1973, 
as amended (Act). We have determined that approximately 2,539 acres 
(ac) (1,028 hectares (ha)) of land within San Diego County, California, 
contain the physical and biological features essential to the 
conservation of M. l. ssp. viminea. Of that, we are proposing to 
designate as critical habitat approximately 115 acres (47 ha) of 
private lands and the Padre Dam Municipal Water District lands within 
the City of Santee. We do not include Tribal lands in this proposed 
designation. We are exempting or considering whether to exclude from 
critical habitat designation the other lands that contain the features 
essential to the conservation of M. l. ssp. viminea. We fully discuss 
the exemption and exclusions under consideration in the preamble of 
this proposed rule. We are soliciting data and comments from the public 
on all aspects of this proposal, including the exemption and exclusions 
under consideration.

DATES: We will accept comments from all interested parties until 
January 9, 2006. We must receive requests for public hearings, in 
writing, at the address shown in the ADDRESSES section by December 27, 
2005.

ADDRESSES: If you wish to comment, you may submit your comments and 
materials concerning this proposal by any one of several methods:
    1. You may submit written comments and information to Jim Bartel, 
Field Supervisor, U.S. Fish and Wildlife Service, Carlsbad Fish and 
Wildlife Office (CFWO), 6010 Hidden Valley Road, Carlsbad, CA 92011.
    2. You may hand-deliver written comments to the CFWO, at the 
address given above.
    3. You may send comments by electronic mail (e-mail) to 
fw8cfwomolivi@fws.gov. Please see the Public Comments Solicited section 
below for file format and other information about electronic filing.
    4. You may fax your comments to 760/431-9624.
    Comments and materials received, as well as supporting 
documentation used in the preparation of this proposed rule, will be 
available for public inspection, by appointment, during normal business 
hours at the CFWO at the above address. Maps showing areas proposed as 
critical habitat, areas under consideration for exclusion from critical 
habitat, and areas exempted from critical habitat are available for 
public review and comment at the CFWO or on the Internet at https://
carlsbad.fws.gov.

FOR FURTHER INFORMATION CONTACT: Jim Bartel, Field Supervisor, CFWO at 
the above address (telephone 760/431-9440; facsimile 760/431-9624).

SUPPLEMENTARY INFORMATION:

Public Comments Solicited

    We intend that any final action resulting from this proposal will 
be as accurate and as effective as possible. Therefore, comments or 
suggestions from the public, other concerned governmental agencies, the 
scientific community, industry, or any other interested party 
concerning this proposed rule are hereby solicited.

[[Page 67957]]

Comments are particularly sought concerning:
    (1) The reasons any habitat should or should not be determined to 
be critical habitat as provided by section 4 of the Act, including 
whether the benefit of designation will outweigh any threats to the 
species due to designation;
    (2) Specific information on the amount and distribution of 
Monardella linoides ssp. viminea habitat, and what areas should be 
included in the designations that were occupied at the time of listing 
that contain the features that are essential to the conservation of the 
species and why and what areas that were not occupied at the time of 
listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
subject areas and their possible impacts on proposed critical habitat;
    (4) The exclusion from critical habitat that we are considering for 
lands within the San Diego MSCP and the BLM Otay Mountain Wilderness 
and the multiple agency 1994 MOU under section 4(b)(2) of the Act (see 
Application of Section 4(a)(3) and Exclusions Under Section 4(b)(2) of 
the Act for details, including maps, of the San Diego MSCP and Otay 
Mountain Wilderness and MOU). Please provide information on the 
benefits of including or excluding these lands from the critical 
habitat designation;
    (5) The exemption from critical habitat at MCAS Miramar pursuant to 
section 4(a)(3) of the Act because their Integrated Natural Resources 
Management Plan (INRMP) provides a benefit to M. l. ssp. viminea. We 
specifically solicit comment concerning the exemption of MCAS Miramar 
under section 4(a)(3) of the Act and whether their INRMP provides a 
benefit to the species (see Application of Section 4(a)(3) and 
Exclusions Under Section 4(b)(2) of the Act section for a detailed 
discussion and figure of the area).
    (6) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities; and
    (7) Whether our approach to designating critical habitat could be 
improved or modified in any way to provide for greater public 
participation and understanding, or to assist us in accommodating 
public concerns and comments.
    If you wish to comment, you may submit your comments and materials 
concerning this proposal by any one of several methods (see ADDRESSES 
section). Please submit Internet comments to fw8cfwomolivi@fws.gov in 
ASCII file format and avoid the use of special characters or any form 
of encryption. Please also include ``Attn: Willowy Monardella'' in your 
e-mail subject header and your name and return address in the body of 
your message. If you do not receive a confirmation from the system that 
we have received your Internet message, contact us directly by calling 
our CFWO at phone number 760/431-9440. Please note that this Internet 
address will be closed at the termination of the public comment period.
    Our practice is to make comments, including names and home 
addresses of respondents, available for public review during regular 
business hours. Individual respondents may request that we withhold 
their home addresses from the rulemaking record, which we will honor to 
the extent allowable by law. There also may be circumstances in which 
we would withhold from the rulemaking record a respondent's identity, 
as allowable by law. If you wish us to withhold your name and/or 
address, you must state this prominently at the beginning of your 
comment. However, we will not consider anonymous comments. We will make 
all submissions from organizations or businesses, and from individuals 
identifying themselves as representatives or officials of organizations 
or businesses, available for public inspection in their entirety. 
Comments and materials received will be available for public 
inspection, by appointment, during normal business hours at the above 
address.

Designation of Critical Habitat Provides Little Additional Protection 
to Species

    In 30 years of implementing the Act, the Service has found that the 
designation of statutory critical habitat provides little additional 
protection to most listed species, while consuming significant amounts 
of available conservation resources. The Service's present system for 
designating critical habitat has evolved since its original statutory 
prescription into a process that provides little real conservation 
benefit, is driven by litigation and the courts rather than biology, 
limits our ability to fully evaluate the science involved, consumes 
enormous agency resources, and imposes huge social and economic costs. 
The Service believes that additional agency discretion would allow our 
focus to return to those actions that provide the greatest benefit to 
the species most in need of protection.

Role of Critical Habitat in Actual Practice of Administering and 
Implementing the Act

    While attention to and protection of habitat is paramount to 
successful conservation actions, we have consistently found that, in 
most circumstances, the designation of critical habitat is of little 
additional value for most listed species, yet it consumes large amounts 
of conservation resources. Sidle (1987) stated, ``Because the Act can 
protect species with and without critical habitat designation, critical 
habitat designation may be redundant to the other consultation 
requirements of section 7.'' Currently, only 470 species, or 37.5 
percent of the 1,253 listed species in the U.S. under the jurisdiction 
of the Service, have designated critical habitat.
    We address the habitat needs of all 1,253 listed species through 
conservation mechanisms such as listing, section 7 consultations, the 
Section 4 recovery planning process, the Section 9 protective 
prohibitions against take of animal species and other unauthorized 
actions regarding plants, Section 6 funding to the States, and the 
Section 10 incidental take permit process. The Service believes that it 
is these measures that may make the difference for the conservation of 
many species.
    We note, however, that the August 6, 2004 Ninth Circuit judicial 
opinion, (Gifford Pinchot Task Force v. United States Fish and Wildlife 
Service) found our definition of adverse modification was invalid. In 
response to the decision, the Director has provided guidance to the 
Service based on the statutory language. In this rule, our analysis of 
the consequences and relative costs and benefits of the critical 
habitat designation is based on application of the statute consistent 
with the 9th Circuit's ruling and the Director's guidance.

Procedural and Resource Difficulties in Designating Critical Habitat

    We have been inundated with lawsuits for our failure to designate 
critical habitat, and we face a growing number of lawsuits challenging 
critical habitat determinations once they are made. These lawsuits have 
subjected the Service to an ever-increasing series of court orders and 
court-approved settlement agreements, compliance with which now 
consumes nearly the entire listing program budget. This leaves the 
Service with little ability to prioritize its activities to direct 
scarce listing resources to the listing program actions

[[Page 67958]]

with the most biologically urgent species conservation needs.
    The consequence of the critical habitat litigation activity is that 
limited listing funds are used to defend active lawsuits, to respond to 
Notices of Intent (NOIs) to sue relative to critical habitat, and to 
comply with the growing number of adverse court orders. As a result, 
listing petition responses, the Service's own proposals to list 
critically imperiled species, and final listing determinations on 
existing proposals are all significantly delayed.
    The accelerated schedules of court ordered designations have left 
the Service with almost no ability to provide for adequate public 
participation or to ensure a defect-free rulemaking process before 
making decisions on listing and critical habitat proposals due to the 
risks associated with noncompliance with judicially-imposed deadlines. 
This in turn fosters a second round of litigation in which those who 
fear adverse impacts from critical habitat designations challenge those 
designations. The cycle of litigation appears endless, is very 
expensive, and in the final analysis provides relatively little 
additional protection to listed species.
    The costs resulting from the designation include legal costs, the 
cost of preparation and publication of the designation, the analysis of 
the economic effects and the cost of requesting and responding to 
public comment, and in some cases the costs of compliance with the 
National Environmental Policy Act (NEPA). None of these costs result in 
any benefit to the species that is not already afforded by the 
protections of the Act enumerated earlier, and they directly reduce the 
funds available for direct and tangible conservation actions.

Background

    In this proposed rule, we discuss only those topics directly 
relevant to the designation of critical habitat. For more information 
on Monardella linoides ssp. viminea, refer to the final rule listing 
the species as endangered published in the Federal Register on October 
13, 1998 (63 FR 54938).

Life History

    Monardella linoides ssp. viminea is a small perennial, herbaceous 
subshrub with aromatic foliage and several erect stems extending from a 
woody base (Munz 1968; 63 FR 54937). It is a member of the Lamiaceae 
(mint family) and flowers from June to August (Munz 1968). Because M. 
l. ssp. viminea branches arise from trailing stems, plants tend to grow 
in groupings or ``clumps,'' rather than as discrete plants (Epling 
1925). Seeds are small with a hard seed coat and may fall directly 
below existing plants after setting (Mike Kelly, pers. comm. to Carolyn 
Lieberman, U.S. Fish and Wildlife Service, 2003). Little is known about 
how the species disperses, however, seeds and vegetative shoots are 
believed to be transported by flowing water (Mark Elvin, botanist, 
Dudek and Associates, pers. comm. to C. Lieberman, U.S. Fish and 
Wildlife Service, 2003).
    M. l. ssp. viminea primarily inhabits coarse, rocky, sandy alluvium 
on terraces, benches, and stabilized sandbars along and within 
ephemeral drainages (Scheid 1985) in coastal sage scrub or riparian 
scrub habitat that is frequently associated with Eriogonum fasciculatum 
(California buckwheat), Platanus racemosa (sycamore), Artemisia 
californica (California sagebrush), and Baccharis sarothroides 
(coyotebush), and Quercus agrifolia (coast live oak) (Scheid 1985). 
These semi-open washes and drainage areas typically contain little to 
no canopy cover (Reiser 1994; 63 FR 54937) and are maintained by large 
intermittent water flows that erode and deposit alluvial material, 
developing benches and sandbars.

Distribution and Status

    The distribution of M. l. ssp. viminea is extremely restricted 
within San Diego County, California, and extends south to Baja 
California, Mexico (Scheid 1985). This narrow endemic plant persists in 
small isolated occurrences within a 72 square-mile (186 square-
kilometer) area between Los Pe[ntilde]asquitos Canyon and Mission Gorge 
in San Diego County and in Otay Mesa and northern Baja California. The 
morphology of M. l. ssp. viminea differs between the populations 
bounded by the Los Pe[ntilde]asquitos Canyon and Mission Gorge region 
to the north and Otay Mesa and northern Baja California region to the 
south. These differences led Elvin and Sanders (2003) to propose the 
Otay Mesa and northern Baja California occurrences as a different 
taxon. The Service evaluated this information and concluded that the 
authors did not provide adequate evidence to elevate the Otay Mesa and 
northern Baja California occurrences to the species rank (Bartel and 
Wallace, in litt. 2004).
    As stated in the 1998 listing rule, approximately 6,000 individuals 
of M. l. ssp. viminea from 20 occurrences were known to exist in the 
United States within the following canyons or geographic areas at the 
time the species was listed as endangered: MCAS Miramar, Sycamore 
Canyon (partially on private land, partially on Federal land managed by 
the U.S. Navy, and partially on Sycamore Canyon City Park), Lopez 
Canyon (Los Pe[ntilde]asquitos City Regional Park), San Clemente Canyon 
(San Clemente Park), Cedar Canyon, and Marron Valley. Since M. l. ssp. 
viminea was listed, a population was found on BLM land on Otay 
Mountain.
    We are currently aware of only 15 occurrences in the United States 
within the following canyons or geographic areas: MCAS Miramar (Rose 
Canyon, part of Sycamore Canyon, West Sycamore Canyon, part of Spring 
Canyon, San Clemente Canyon, Elanus Canyon (MCAS Miramar 2002)), part 
of Sycamore Canyon on private property and Sycamore Canyon City Park, 
Cedar Canyon (now referred to as Otay Lakes), Lopez Canyon (Los 
Pe[ntilde]asquitos City Regional Park), Marron Valley, and Otay 
Mountain.
    The remaining six occurrences are believed to have been extirpated 
after the species was listed in 1998:
    The Carroll Canyon occurrence (California Natural Diversity Data 
Base (CNDDB) occurrence number 25): this occurrence is comprised of 122 
clumps, was collected as mitigation for the Carroll Canyon Business 
Park project in 2003 to prevent their destruction during the project's 
construction. Of these 122 clumps, 30 are being held at the Rancho 
Santa Ana Botanic Garden as live material. Others will be reintroduced 
back into suitable sites in Carroll Canyon, at a robust historical 
population site at San Clemente Canyon, and/or in Lopez Canyon next to 
existing populations. The exact location where M. l. ssp. viminea will 
be reintroduced will depend on the results of genetic testing to 
determine the genetic similarity of the donor population with any 
population in which it may interact.
    The three San Clemente Canyon occurrences on City of San Diego Park 
land (CNDDB occurrence numbers 11, 16, and 17): These three occurrences 
of M. l. ssp. viminea historically occurred in the upper portion of the 
canyon at MCAS Miramar, and in the lower portion of the canyon west of 
Interstate 805 in the City of San Diego's Marian Bear Natural Park. 
These occurrences within this park are believed to have been extirpated 
due to construction of Highway 52, development within its watershed 
resulting in conversion of the occupied stream from ephemeral to 
perennial (Sherman 2003), and an increase in nonnative invasive 
species.
    The two occurrences within Murphy Canyon (CNDDB occurrence numbers

[[Page 67959]]

15, and 30) (CNDDB 1997; CNDDB 2001; 63 FR 54937): These occurrences 
have not had any live standing plants since 2002, and we do not know if 
suitable habitat remains here but they are believed to be extirpated 
(JoEllan Kassebaum, Botanist, MCAS Miramar, pers. com. to Bridgette 
Tuerler, Service 2005).
    Monardella linoides ssp. viminea was also known from Cemetery 
Canyon, Beeler Canyon (near Poway), and Switzer Canyons but is believed 
to have been extirpated from these areas prior to listing (CNDDB 2001; 
Elvin and Sanders 2003).
    Methods to survey Monardella linoides ssp. viminea vary because it 
tends to grow in groupings (referred to as clumps) rather than as 
discrete plants, making it difficult to compare the numbers of 
individuals counted between different surveys. Surveys have counted 
individual plants, clumps of individual plants, and/or colonies (see 
Table 1 for details).

         Table 1.--Survey Data for Extant Occurrences of Monardella linoides ssp. viminea at Various Locations Over Time, From Pre-2000 to 2004
    [Years fro which we have no data are represented as ``ND'' and years for which we have no specific abundance data, only positive survey data, are
                                                              represented as ``occupied'']
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                                                                                                   Date
       Geographic area             Ownership    --------------------------------------------------------------------------------------------------------
                                                     Pre-2000            2000              2001              2002             2003             2004
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(1) Sycamore Canyon..........  MCAS Miramar....  383 plants \13\.  ND*.............  ND..............  446 clumps \8\.  ND.............  ND.
                               Private.........  Occupied **\7\..  262 clumps \2\..  170 clumps \3\..  128 plants \4\.  85 clumps (390   93 clumps (354
                                                                                                                         plants) \5\.     plants). \6\
(2) West Sycamore Canyon.....  MCAS Miramar....  1376 plants       907 clumps \9\..  ND..............   1,737 plants    ND.............  ND.
                                                  \13\; 650                                             (132 clumps)
                                                  colonies in                                           \8\.
                                                  1987 \10\.
                               City of San       Occupied \7\....  12 clumps.\12\..  ND..............  ND.............  ND.............  ND.
                                Diego.
                               Private.........  ND..............  ND..............  ND..............  ND.............  0 clumps,        ND.
                                                                                                                         previously 23
                                                                                                                         clumps.\11\.
(3) Spring Canyon............  MCAS Miramar....  185 clumps in     ND..............  ND..............  549 plants (80   ND.............  ND.
                                                  1994 \10\.                                            clumps) \8\.
                               Private (East     ND..............  133 clumps \2\..  ND..............  ND.............  ND.............  ND.
                                Elliot).
(4) San Clemente Canyon......  MCAS Miramar....  Occupied \7\....  343 clumps \9\..  ND..............  503 plants (83   ND.............  ND.
                                                                                                        clumps) \8\.
(5) Elanus Canyon............  MCAS Miramar....  10 clumps or      9 clumps \9\....  ND..............  13 plants (2     ND.............  ND.
                                                  individuals                                           clumps) \8\.
                                                  \10\.
(6) Lopez Canyon.............  City of San       60 plants in      8 clumps \2\....  8 clumps \3\....  44 plants \4\..  8 clumps (82     8 clumps (82
                                Diego (Los        1980 \1\, 12                                                           plants) \5\.     plants). \6\
                                Pe[ntilde]aquit   clumps in 1994,
                                os City           8 clumps in
                                Regional Park).   1997 \1\, 35
                                                  plants in 1987
                                                  \1\.
(7) Marron Valley............  City of San       60 plants in      42 clumps \2\...  66 clumps \3\...  98 plants \4\..  83 clumps (192   70 clumps (113
                                Diego & State     1992 \14\.                                                             plants) \5\.     plants). \6\
                                (CDF).
(8) Otay Lakes (also referred  State (CDFG)....  200 plants in     Occupied \7\....  ND..............  4 clumps \12\..  ND.............  ND.
 to as Cedar Canyon).                             1989 \10\.
                               City of San       ND..............  2 clumps \2\....  2 clumps \3\....  2 plants \4\...  ND.............  2 plants \6\.
                                Diego.
                               Private.........  ND..............  ND..............  25 plants \12\..  ND.............  ND.............  ND.
(9) Rose Canyon..............  MCAS Miramar....  Occupied \7\....  ND..............  ND..............  4 plants (2      ND.............  ND.
                                                                                                        clumps) \8\.
(10) Otay Mountain...........  Federal (BLM)...  ND..............  202 clumps \2\..  ND..............  ND.............  ND.............  ND.
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(Marine Corps Air Station (MCAS); California Department of Fish and Game (CDFG); Bureau of Land Management (BLM); California Department of Forestry
  (CDF)).
*ND = Years for which we have no data.
**Occupied = Years for which we have no specific abundance data, only positive survey data.
\1\ Kelly and Burrascano 2001.
\2\ City 2000.
\3\ City 2001.
\4\ City 2002.
\5\ City 2003.
\6\ City 2004.
\7\ GIS data layer from MCAS (No Date).
\8\ MCAS Miramar 2002.
\9\ Service 2000.
\10\ CNDDB 2001.
\11\ Helix Environmental Planning, Inc. 2004.
\12\ Sherman 2003.
\13\ GIS data layer from MCAS (unknown, but before 1998).
\14\ MSCP GIS layer from San Diego Association of Governments.

    As stated in the final listing rule, threats to Monardella linoides 
ssp. viminea include habitat alteration resulting from urban 
development, sand and gravel mining, off-road vehicle (ORV) activities, 
trampling, trash dumping, erosion, and invasion of nonnative species 
(October 13, 1998; 63 FR 54938).
    Due to its small population sizes and numbers, M. l. ssp. viminea 
is potentially threatened with stochastic (random) extinction (Service 
1995). Chance events (e.g., floods, fires, or drought) can 
substantially reduce or eliminate local populations and increase the 
likelihood of the plant's extinction. Major flood events can physically 
wash away individual plants and existing habitat (Kelly and Burrascano 
2001). M. l. ssp. viminea had likely adapted to a

[[Page 67960]]

natural fire regime since fires maintain open and available habitat 
necessary for M. l. ssp. viminea. Alternatively, disruptions to natural 
fire cycles may be detrimental to M. l. ssp. viminea because excessive 
fuel build up may cause hotter fires than those to which M. l. ssp. 
viminea has become adapted. Fire has resulted in loss of M. l. ssp. 
viminea individuals on Otay Lakes lands, although it was recently 
verified that surviving individuals still occur in this area (Sherman 
2003) and on MCAS Miramar. Drought has reduced population size within 
Sycamore Canyon (City 2002). Herbivory by unchecked populations of 
native rabbits and deer also has been identified as a threat to 
populations of M. l. ssp. viminea (Kelly and Burrascano 2001).

Previous Federal Actions

    Please see the final rule listing Monardella linoides ssp. viminea 
as endangered for a description of previous Federal actions up to the 
time of listing on October 13, 1998 (63 FR 54938). In the final listing 
rule, the Service determined designation of critical habitat was not 
prudent because such designation would not benefit the species and 
could increase the threat of illegal collection.
    On September 26, 2001, a lawsuit was filed against the Department 
of the Interior (DOI) and the Service by the California Native Plant 
Society (CNPS) alleging, in part, that the Service improperly 
determined that designation of critical habitat for Monardella linoides 
ssp. viminea was not prudent (CNPS v. Norton, No. 01-CV-1742IEG (JAH). 
The Service entered into a settlement agreement with the plaintiffs, 
under which we agreed to reconsider our ``not prudent'' finding, 
publish a proposed critical habitat rule for M. l. ssp. viminea in the 
Federal Register, if prudent, on or before October 30, 2005, and 
publish a final critical habitat rule, if prudent, on or before October 
30, 2006. This proposed rule complies with the June 2, 2003 settlement 
agreement.
    Section 4(a)(3) of the Act and its implementing regulations (50 CFR 
424.12) require that, to the maximum extent prudent and determinable, 
we designate critical habitat at the time a species is listed as 
endangered or threatened. Our regulations at 50 CFR 424.12(a)(1) state 
that the designation of critical habitat is not prudent when one or 
both of the following situations exist: (1) The species is threatened 
by taking or other activity and the identification of critical habitat 
can be expected to increase the degree of threat to the species or (2) 
such designation of critical habitat would not be beneficial to the 
species. In our October 13, 1998, final rule (63 FR 54938), we 
determined that designation of critical habitat would provide little 
conservation benefit over that provided by listing. We determined that 
designation of critical habitat was not prudent based on the increased 
threat of collection and vandalism and stated that designation of 
critical habitat could lead to increased publicity, illegal collection, 
and trampling of plants by individuals interested in seeing rare 
plants.
    However, in the past few years, several of our determinations that 
the designation of critical habitat would not be prudent have been 
overturned by court decisions. For example, in Conservation Council for 
Hawaii v. Babbitt, the United States District Court for the District of 
Hawaii ruled that the Service could not rely on the ``increased 
threat'' rationale for a ``not prudent'' determination without specific 
evidence of the threat to the species at issue (2 F. Supp. 2d 1280 [D. 
Hawaii 1998]). Additionally, in Natural Resources Defense Council v. 
U.S. Department of the Interior, the United States Court of Appeals for 
the Ninth Circuit ruled that the Service must balance, in order to 
invoke the ``increased threat rationale,'' the threat against the 
benefit to the species of designating critical habitat (113 F. 3d 1121, 
1125 [9th Cir. 1997]).
    At this time, we do not have specific evidence for overcollection 
or vandalism specific to this plant and its habitat. The courts also 
have ruled that, in the absence of a finding that the designation of 
critical habitat would increase threats to a species, the existence of 
another type of protection, even if it offers potentially greater 
protection to the species, does not justify a ``not prudent'' finding 
(Conservation Council for Hawaii v. Babbitt 2 F. Supp. 2d 1280). We are 
already working with Federal, State of California, County of San Diego, 
and City of San Diego agencies and organizations in carrying out 
conservation activities for this plant and conducting surveys for 
additional occurrences of the species and to assess habitat conditions. 
These entities are fully aware of the distribution, status, and habitat 
requirements for this plant. We have reconsidered our evaluation of the 
threats posed by collection and vandalism in the prudency 
determination. We have determined that the threats to Monardella 
linoides ssp. viminea from specific instances of collection vandalism 
are speculative. Accordingly, we withdraw our previous determination 
that the designation of critical habitat is not prudent for M. l. ssp. 
viminea. Therefore, we determine that the designation of critical 
habitat is prudent for M. l. ssp. viminea. At this time, we have 
sufficient information necessary to identify specific features as 
essential to the conservation of M. l. ssp. viminea and are therefore, 
proposing critical habitat (see ``Methods'' section below for a 
discussion of information used in our reevaluation). In total, we have 
determined that approximately 2,539 acres (ac) (1,028 hectares (ha)) of 
land within San Diego County, California, contain the primary 
constituent elements essential to the conservation of M. l. ssp. 
viminea.

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 (I) essential to the conservation 
of the species and (II) that may require special management 
considerations or protection; and (ii) specific areas outside the 
geographical area occupied by a species at the time it is listed, upon 
a determination that such areas are essential for the conservation of 
the species. ``Conservation'' means the use of all methods and 
procedures that are necessary to bring an endangered or a threatened 
species to the point at which listing under the Act is no longer 
necessary.
    Critical habitat receives protection under section 7 of the Act 
through the prohibition against destruction or adverse modification of 
critical habitat with regard to actions carried out, funded, or 
authorized by a Federal agency. Section 7 requires consultation on 
Federal actions that are likely to result in the destruction or adverse 
modification of 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 government or public access to private lands.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species at the time of listing must 
first have features that are essential to the conservation of the 
species. Critical habitat designations identify, to the extent known 
using the best scientific data available, habitat areas that provide 
essential life cycle needs of the species (i.e., areas on which are 
found the primary constituent elements (PCEs), as defined at 50 CFR 
424.12(b)).
    Habitat occupied at the time of listing may be included in critical 
habitat only if the essential features thereon may

[[Page 67961]]

require special management or protection. Thus, we do not include areas 
where existing management is sufficient to conserve the species. (As 
discussed below, such areas may also be excluded from critical habitat 
pursuant to section 4(b)(2)). With regard to areas not known to be 
occupied by the species at the time of listing, we will designate such 
areas when the best available scientific data indicates that the 
conservation needs of the species so require.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), and Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (P.L. 106-554; H.R. 5658) and 
the associated Information Quality Guidelines issued by the Service, 
provide criteria, establish procedures, and provide guidance to ensure 
that decisions made by the Service represent the best scientific data 
available. They require Service 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 determining which 
areas are critical habitat, a primary source of information is 
generally the listing package for the species. Additional information 
sources 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. All 
information is used in accordance with the provisions of Section 515 of 
the Treasury and General Government Appropriations Act for Fiscal Year 
2001 (P.L. 106-554; H.R. 5658) and the associated Information Quality 
Guidelines issued by the Service.
    Section 4 of the Act requires that we designate critical habitat on 
the basis of the best scientific data available. Habitat is often 
dynamic, and species may move from one area to another over time. 
Furthermore, we recognize that designation of critical habitat may not 
include all of the habitat areas that may eventually be determined to 
be necessary for the recovery of the species. For these reasons, 
critical habitat designations do not signal that habitat outside the 
designation is unimportant or may not be required for recovery.
    Areas that support populations, but are outside the critical 
habitat designation, will continue to be subject to conservation 
actions implemented under section 7(a)(1) of the Act and to the 
regulatory protections afforded by the section 7(a)(2) jeopardy 
standard, as determined on the basis of the best available information 
at the time of the 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, or 
other species conservation planning efforts if new information 
available to these planning efforts calls for a different outcome.

Methods

    As required by section 4(b)(1)(A) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Monardella linoides 
ssp. viminea. Information sources included data from research and 
survey observations published in peer-reviewed articles; survey reports 
submitted as requirement of obtaining a section 10(a)(1)(A) permit; 
regional Geographic Information System (GIS) data from the San Diego 
Multiple Species Conservation Program (MSCP), soil, and species 
coverages (including layers for the City of San Diego and MCAS 
Miramar); and data compiled in the California Natural Diversity Data 
Base (CNDDB). We have also reviewed available information that pertains 
to the habitat requirements of this species. The material included data 
in reports submitted during section 7 consultations; research published 
in peer-reviewed articles and agency reports; and, regional GIS 
coverages. We are not proposing critical habitat in areas outside the 
geographical area occupied at the time of listing. The Otay Mountain 
population, discovered after the publication of the final listing rule, 
is approximately 4.75 miles (7.6 kilometers) west of the known 
population at Marron Valley. We consider the Otay Mountain occurrence 
to be a confirmation of the distribution of M. l. ssp. viminea within 
southern San Diego County. We are considering whether to exclude the 
Otay Mountain population from critical habitat in the final rule, as 
discussed below in the Exclusions section of this proposed rule.
    We have reviewed and used the best available information about 
known occurrences and habitat requirements of Monardella linoides ssp. 
viminea. We delineated the boundaries of habitat containing features 
essential to the conservation of species by outlining the local 
drainage area from the upper-to the lower-most occurrence point within 
each occupied drainage area following topographic lines on USGS 
topographical maps. The majority of the occurrence points are based on 
data collected in 1998 and 2002 and were used to delineate the up- and 
down-stream boundaries of habitat containing features essential to the 
conservation of species within each drainage.
    These areas were further refined by gathering information about 
these areas with Service biologists and other knowledgeable individuals 
familiar with Monardella linoides ssp. viminea and their habitat. After 
creating GIS coverage of the areas containing features essential to the 
conservation of species, we created legal descriptions using a 100-
meter grid to establish Universal Transverse Mercator (UTM) North 
American Datum 27 (NAD 27) coordinates which, when connected, provided 
the boundaries of the area proposed as critical habitat.

Primary Constituent Elements

    In accordance with section 3(5)(A)(i) of the Act and regulations at 
50 CFR 424.12, in determining which areas to propose as critical 
habitat, we are required to base critical habitat determinations on the 
best scientific data available and to consider those physical and 
biological features (primary constituent elements (PCEs)) that are 
essential to the conservation of the species, and that may require 
special management considerations and protection. These include, but 
are not limited to: Space for individual and population growth and for 
normal behavior; food, water, air, light, minerals, or other 
nutritional or physiological requirements; cover or shelter; sites for 
breeding, reproduction, and rearing (or development) of offspring; and 
habitats that are protected from disturbance or are representative of 
the historic geographical and ecological distributions of a species. 
The specific PCEs required for Monardella linoides ssp. viminea are 
derived from the biological needs of the species as described below and 
in the final listing rule for M. l. ssp. viminea (October 13, 1998; 63 
FR 54937).

Space for Individual and Population Growth and Normal Behavior

    Open or semi-open rocky, sandy alluvium on terraced floodplains, 
benches, stabilized sandbars, channel banks, and sandy washes along 
ephemeral streams, washes, and

[[Page 67962]]

floodplains are needed for individual and population growth of 
Monardella linoides ssp. viminea (October 13, 1998; 63 FR 54938) (PCE 
1). M. l. ssp. viminea in the Otay Lakes/Marron Valley area also occur 
in cracks of bedrock of ephemeral drainages. While little is known 
about the space needed for reproduction, flowing water appears to be 
important for transporting seeds and vegetative shoots (Mark Elvin, 
botanist, Dudek and Associates, pers. comm. to C. Lieberman, U.S. Fish 
and Wildlife Service, 2003). Animals may also be important for seed 
dispersal. We are unaware of any studies documenting specific 
pollinators of M. l. ssp. viminea; however, the floral structure 
suggests insect pollination. Intermittently flooded areas are dynamic 
such that the stream path and the location of benches and sandbars 
along the shoreline may change depending on seasonal water flows. 
Therefore, the riparian corridor where M. l. ssp. viminea is found is 
an integral part of and important for providing space for growth and 
reproduction within this dynamic ecosystem.

Water and Physiological Requirements

    A natural hydrologic regime that includes intermittent flooding 
during the rainy season is needed to maintain washes and sandbars where 
Monardella linoides ssp. viminea grows (PCE 2) (October 13, 1998; 63 FR 
54938). Large intermittent water flows resulting from seasonal rains 
and major flooding events erode and deposit alluvial material, 
developing benches and sandbars used by M. l. ssp. viminea. These 
seasonal rains and intermittent flooding events may also be important 
for transporting seeds and vegetative shoots as stated above and are 
needed to maintain the open or semi-open riparian areas with little or 
no canopy cover needed to ensure that the species receives adequate 
sunlight for nutrient uptake (photosynthesis) (PCE 3).

Primary Constituent Elements for Monardella linoides ssp. viminea

    Based on our current knowledge of the life history, biology, and 
ecology of the species and the habitat requirements to sustain the 
essential life history functions of the species, we have determined 
that the PCEs essential for the conservation of Monardella linoides 
ssp. viminea are:
    (1) Coarse, rocky, sandy alluvium on terraced floodplains, benches, 
stabilized sandbars, channel banks, and sandy washes along and within 
the ephemeral drainages that provide space for growth, reproduction, 
and dispersal;
    (2) Ephemeral drainages where water flows only after peak seasonal 
rains and major flooding events and periodically scours riparian 
vegetation and redistributes alluvial material by eroding and 
developing stream channels, benches, and sandbar and thus maintains 
necessary dynamic habitat processes for the species; and
    (3) Coastal sage and riparian scrub with an open and semi-open 
canopy and little or no herbaceous understory situated along ephemeral 
drainages and adjacent floodplains to ensure that the subspecies 
receives adequate sunlight for nutrient uptake for photosynthesis.

Criteria Used to Identify Critical Habitat

    We are proposing to designate critical habitat on lands that were 
known to be occupied at the time of listing and contain the PCEs for 
Monardella linoides ssp. viminea. We used the following criteria to 
identify these areas: (1) Areas known to be occupied at the time of 
listing and/or known to be currently occupied; and (2) ephemeral washes 
and drainage areas associated with documented occurrences.
    These areas were then analyzed with respect to special management 
considerations or protections. Subsequently, we identified areas we are 
exempting from critical habitat designation based on provisions of 
section 4(a)(3) of the Act and other areas we are considering excluding 
from critical habitat based on the provisions of section 4(b)(2) of the 
Act.
    Using the above criteria, we identified 10 areas that contain 
features essential to the conservation of M. l. ssp. viminea, one in 
each of the following canyons/geographic areas: (1) Sycamore Canyon, 
(2) West Sycamore Canyon, (3) Spring Canyon, (4) San Clemente Canyon, 
(5) Elanus Canyon, (6) Lopez Canyon, (7) Marron Valley, (8) Otay Lakes 
(also known as Cedar Canyon), (9) Otay Mountain, and (10) Rose Canyon 
(MCAS Miramar). All 10 areas, except Otay Mountain, were known to be 
occupied at the time of listing, and all 10 areas, including Otay 
Mountain, are currently known to be occupied.
    When mapping proposed critical habitat boundaries, we made every 
effort to remove all lands containing developed areas such as 
buildings, paved areas, boat ramps and other structures that lack PCEs 
for Monardella linoides ssp. viminea. Any lands containing such 
structures that could not be removed from the maps, due to the mapping 
scale used, are excluded by this text from critical habitat. Therefore, 
Federal actions limited to these lands would not trigger section 7 
consultations, unless they affect the species and/or PCEs in adjacent 
critical habitat.

Special Management Considerations or Protections

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing that contain one or 
more PCEs may require special management considerations or protections.
    As stated in the final listing rule, threats to Monardella linoides 
ssp. viminea include habitat alteration resulting from urban 
development, sand and gravel mining, off-road vehicle (ORV) activities, 
trampling, trash dumping, erosion, and invasion of nonnative species 
(October 13, 1998; 63 FR 54938). These activities could impact the PCEs 
determined to be essential for conservation of M. l. ssp. viminea.
    Urban development and sand and gravel mining upstream of Monardella 
linoides ssp. viminea occurrences may alter the hydrologic regime 
needed to maintain the habitat characteristics required by M. l. ssp. 
viminea. Conversion of intermittent water flows to persistent water 
flows may increase scour and erode terraces and benches, washing away 
rooted plants and reducing available habitat (PCEs 1 and 2). Kelly and 
Burrascano (2001) attribute disappearance of terraces in Lopez Canyon 
to increased erosion associated with urban runoff from upstream 
development. Water diversion, such as water removal from the drainage 
system occupied by the subspecies could reduce the amount of water 
flowing downstream following seasonal flooding events resulting in 
decreased deposition of alluvial material and a subsequent reduction in 
the amount of available habitat (PCEs 1 and 2). Disruption of the 
hydrologic cycle could also result in a decrease in the number of seeds 
that could have been transported downstream during seasonal flooding 
events, thereby, fragmenting populations (PCE 2). The use of pesticides 
or herbicides in residential and commercially landscaped areas within 
the watershed may impact water quality if used upslope or above a 
stream (PCE 2). Special management such as bank replacement or 
stabilization to maintain the substrate, restoration of intermittent 
water flows, erosion and runoff control measures, and prohibitions 
against grading during the rainy season may be required to reduce 
impacts to M. l. ssp. viminea habitat resulting from alteration of the 
hydrologic regime due to development within the local watershed.

[[Page 67963]]

    Alteration of the hydrologic regime also can result in an increase 
in native and nonnative plant species invading the riparian areas where 
M. l. ssp. viminea occurs. Increased water flow associated with urban 
runoff has led to dense stands of riparian vegetation in the upper 
reaches of Lopez Canyon where M. l. ssp. viminea once occurred (Kelly 
and Burrascano 2001). Increases in riparian vegetation within ephemeral 
drainages may also be responsible for losses of M. l. ssp. viminea in 
lower San Clemente Canyon. Conversely, decreased water availability may 
result in conversion of habitat from mesic to xeric, adversely 
impacting M. l. ssp. viminea. More drought tolerant plants could expand 
into M. l. ssp. viminea habitat and create unnaturally high canopy 
cover or dense riparian vegetation that could crowd M. l. ssp. viminea 
out or render the habitat unsuitable by creating excessive shading (PCE 
3). Special management may be required to remove invasive species to 
maintain an open or semi-open canopy of coastal sage and riparian scrub 
with minimal herbaceous understory required by M. l. ssp. viminea for 
persistence (PCE 3).
    Human use (e.g., ORV activities and trampling) along streams can 
change the character of the riparian area and associated vegetation in 
ways that make portions of the riparian corridor less suitable as 
habitat for M. l. ssp. viminea. For example, heavy trampling may erode 
or denude stream banks and washes, thereby, reducing or eliminating 
available habitat (PCE 1). Special management such as bank replacement 
or stabilization to maintain the substrate and prohibitions against ORV 
use during the rainy season may be required to reduce impacts to M. l. 
ssp. viminea habitat resulting from human use within the local 
watershed.

Proposed Critical Habitat Designation

    As stated above, we identified 10 canyons/geographic areas 
containing habitat with features essential to the conservation of this 
species. We are proposing critical habitat within a portion of Sycamore 
Canyon (Unit 1) within the City of Santee. We are exempting under 
section 4(a)(3) of the Act, all lands within MCAS Miramar (Rose Canyon 
and portions of San Clemente Canyon, Elanus Canyon, Spring Canyon, West 
Sycamore Canyon, and Sycamore Canyon) from this critical habitat 
designation. We are also considering excluding from this critical 
habitat designation a portion of Sycamore Canyon and all of West 
Sycamore Canyon, Spring Canyon, San Clemente Canyon, Elanus Canyon, 
Lopez Canyon, Marron Valley, Otay Lakes, and Otay Mountain under 
section 4(b)(2) of the Act. Table 2 below provides approximate area 
(ac/ha) of lands being proposed as critical habitat for M. l. ssp. 
viminea and information about landownership within this unit.
    The proposed critical habitat unit described below constitutes our 
best assessment at this time of those areas determined to be occupied 
at the time of listing that contain one or more PCEs essential to the 
conservation of the Monardella linoides ssp. viminea that may require 
special management. A brief description of the proposed critical 
habitat unit and reasons why this unit is essential for the 
conservation of M. l. ssp. viminea is presented below.

 Table 2.--Ownership and Approximate Areas (ac/ha) Proposed as Critical
              Habitat for Monardella linoides ssp. viminea
------------------------------------------------------------------------
                                                    Proposed critical
             Unit                 Ownership        habitat acres (ac)
                                                     (hectares (ha))
------------------------------------------------------------------------
Unit 1: Sycamore Canyon......  Private........  114 ac (46 ha).
                               Water District.  1 ac (1 ha).
                               Total..........  115 ac (47 ha)
------------------------------------------------------------------------

Unit Description

Unit 1: Sycamore Canyon: (115 ac (47 ha))

    Sycamore Canyon area supports one of the largest occurrences of 
Monardella linoides ssp. viminea (CNDDB 2001) and was known to be 
occupied at the time of listing and is currently known to be occupied 
(Table 1). Lands in Unit 1 contain one or more of the PCEs identified 
for M. l. ssp. viminea. This unit is important for the conservation of 
M. l. ssp. viminea because it represents one of the ten canyons/
geographic areas in San Diego County that support this species and one 
of only 14 occurrences of this M. l. ssp. viminea. Given the restricted 
range and low numbers of occurrences, this unit is essential to 
minimize the risk of extinction from random events and urban 
development.
    Approximately 114 ac (46 ha) in Unit 1 are private lands and 
located within the City of Santee on lands being proposed for the 
Fanita Ranch development project. Fanita Ranch is currently developing 
a habitat conservation plan that will serve as the foundation for the 
City of Santee's subarea plan under the MSCP. In the future, we may 
consider excluding Fanita Ranch from critical habitat designation based 
on a pending or approved HCP that provide benefits for M. l. ssp. 
viminea or an approved conservation agreement between the Service and 
Fanita Ranch that provides assurances of the conservation measures that 
Fanita Ranch will undertake to protect and manage for M. l. ssp. 
viminea on their lands. Fanita Ranch has provided the Service with a 
letter that expressed their interest in working together to prepare a 
conservation agreement for M. l. ssp. viminea that would provide the 
basis for excluding their lands from designation under section 4(b)(2) 
of the Act.
    Likewise, approximately 1 ac (1 ha) in Unit 1 is on lands owned by 
the Padre Dam Municipal Water District. This water district, along with 
Helix Water District, Santa Fe Irrigation District, and Sweetwater 
Authority, is developing a multiple species habitat conservation plan 
under section 10(a)(1)(B) of the Act. We published a notice of intent 
to prepare an environmental impact statement/environmental impact 
report for a Natural Communities Conservation Plan and HCP on February 
4, 2005 (February 4, 2005; 70 FR 6033). In the future, we may consider 
excluding Padre Dam Municipal Water District from critical habitat 
designation based on a pending or approved HCP that provide benefits 
for M. l. ssp. viminea or an approved conservation agreement between 
the Service and Padre Dam Municipal Water District that provides 
assurances of the conservation measures that Padre Dam Municipal Water 
District will undertake to protect and manage for M. l. ssp. viminea on 
their lands.
    Habitat with features essential to the conservation of M. l. ssp. 
viminea on

[[Page 67964]]

private and Padre Dam Municipal Water District lands in Unit 1 may 
require special management to minimize impacts by nonnative invasive 
weeds, fire, indirect and direct effects of development, including 
altered hydrology, and recreational activities.

Effects of Critical Habitat Designation

Section 7 Consultation

    Section 7 of the Act requires Federal agencies, including the 
Service, to ensure that actions they fund, authorize, or carry out are 
not likely to destroy or adversely modify critical habitat. Such 
alterations include, but are not limited to: Alterations adversely 
modifying any of those physical or biological features that were the 
basis for determining the habitat to be critical.'' We are currently 
reviewing the regulatory definition of adverse modification in relation 
to the conservation of the species.
    Section 7(a) of the Act requires Federal agencies, including the 
Service, to evaluate their actions with respect to any species that is 
proposed or listed as endangered or threatened and with respect to its 
critical habitat, if any is proposed or designated. Regulations 
implementing this interagency cooperation provision of the Act are 
codified at 50 CFR Part 402.
    Section 7(a)(4) of the Act requires Federal agencies to confer with 
us on any action that is likely to jeopardize the continued existence 
of a proposed species or result in destruction or adverse modification 
of proposed critical habitat. Conference reports provide conservation 
recommendations to assist the agency in eliminating conflicts that may 
be caused by the proposed action. We may issue a formal conference 
report if requested by a Federal agency. Formal conference reports on 
proposed critical habitat contain an opinion that is prepared according 
to 50 CFR 402.14, as if critical habitat were designated. We may adopt 
the formal conference report as the biological opinion when the 
critical habitat is designated, if no substantial new information or 
changes in the action alter the content of the opinion (see 50 CFR 
402.10(d)). Until such a time as a proposed designation is finalized, 
any reasonable and prudent alternatives or reasonable and prudent 
measures included in a conference report are advisory.
    If a species is listed or critical habitat is designated, section 
7(a)(2) requires Federal agencies to ensure that activities they 
authorize, fund, or carry out are not likely to jeopardize the 
continued existence of such a species or to destroy or adversely modify 
its critical habitat. If a Federal action may affect a listed species 
or its critical habitat, the responsible Federal agency (action agency) 
must enter into consultation with us. Through this consultation, the 
action agency ensures that their actions do not destroy or adversely 
modify critical habitat.
    When we issue a biological opinion concluding that a project is 
likely to result in the destruction or adverse modification of critical 
habitat, we also provide reasonable and prudent alternatives to the 
project, if any are identifiable. ``Reasonable and prudent 
alternatives'' are defined 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, that are consistent 
with the scope of the Federal agency's legal authority and 
jurisdiction, that are economically and technologically feasible, and 
that the Director believes would avoid destruction or adverse 
modification of 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 critical 
habitat is subsequently designated and the Federal agency has retained 
discretionary involvement or control over the action or such 
discretionary involvement or control is authorized by law. 
Consequently, some Federal agencies may request reinitiation of 
consultation or conference with us on actions for which formal 
consultation has been completed, if those actions may affect designated 
critical habitat or adversely modify or destroy proposed critical 
habitat.
    Federal activities that may affect the Monardella linoides ssp. 
viminea or its critical habitat will require section 7 consultation. 
Activities on private or State lands requiring a permit from a Federal 
agency, such as a permit from the U.S. Army Corps of Engineers under 
section 404 of the Clean Water Act, a section 10(a)(1)(B) permit from 
the Service, or some other Federal action, including funding (e.g., 
Federal Highway Administration or Federal Emergency Management Agency 
funding), will also continue to be subject to the section 7 
consultation process. Federal actions not affecting listed species or 
critical habitat and actions on non-Federal and private lands that are 
not federally funded, authorized, or permitted do not require section 7 
consultation.
    Each of the areas designated in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of M. l. ssp. viminea. In some cases, the PCEs exist as a 
result of ongoing federal actions. As a result, ongoing federal actions 
at the time of designation will be included in the baseline in any 
consultation conducted subsequent to this designation.
    Section 4(b)(8) of the Act requires us to briefly evaluate and 
describe in any proposed or final regulation that designates critical 
habitat those activities involving a Federal action that may destroy or 
adversely modify such habitat, or that may be affected by such 
designation. Activities that may destroy or adversely modify critical 
habitat may also jeopardize the continued existence of the M. l. ssp. 
viminea. Federal activities that, when carried out, may adversely 
affect critical habitat for the M. l. ssp. viminea include, but are not 
limited to:
    (1) Actions that would significantly alter the natural hydrologic 
pattern of intermittent flows and peak seasonal flooding necessary to 
support Monardella linoides ssp. viminea. These activities could 
include Federal authorization for urban and agricultural development in 
the watershed that changes the amount, timing, frequency, and magnitude 
of stream flows. Increased and/or more frequent water flows associated 
with urban runoff could lead to dense stands of riparian vegetation 
that may out-compete M. l. ssp. viminea. Changes in the magnitude of 
seasonal flooding may increase scouring and erosion of terraces, banks, 
and benches and thereby reduce the quality and availability of suitable 
soils and habitat. Conversely, reduced water flow could result in more 
xeric conditions that would limit plant growth and reproduction and 
thereby allowing more drought tolerant plants to compete with M. l. 
ssp. viminea.
    (2) Actions that would remove alluvium from stream channels or 
change the physical structure of the stream channel by altering 
floodplains, benches, sand bars, and stream channels from sand and 
gravel mining, stream channelization, flood channel management, highway 
construction, and dredging. Federal authorization for projects that 
physically alter the stream channel may remove suitable alluvium from 
stream channels and result in the loss and degradation of habitat for 
M. l. ssp. viminea.

[[Page 67965]]

Application of Section 4(a)(3) and Possible Exclusions Under Section 
4(b)(2) of the Act

    Section 3(5)(A) of the Act defines critical habitat as the specific 
areas within the geographical area occupied by the species at the time 
of listing 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. Therefore, 
areas within the geographical area occupied by the species at the time 
of listing that do not contain the features essential for the 
conservation of the species are not, by definition, critical habitat. 
Similarly, areas within the geographical area occupied by the species 
at the time of listing that do not require special management or 
protection also are not, by definition, critical habitat. To determine 
whether an area requires special management, we first determine if the 
essential features located there generally require special management 
to address applicable threats. If those features do not require special 
management, or if they do in general but not for the particular area in 
question because of the existence of an adequate management plan or for 
some other reason, then the area does not require special management.
    We consider a current p