Endangered and Threatened Wildlife and Plants; Designation of Critical Habitat for Ceanothus ophiochilus, 58340-58363 [06-8189]

Agencies

• Fish and Wildlife Service
• DEPARTMENT OF THE INTERIOR

[Federal Register Volume 71, Number 191 (Tuesday, October 3, 2006)]
[Proposed Rules]
[Pages 58340-58363]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-8189]


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DEPARTMENT OF THE INTERIOR

Fish and Wildlife Service

50 CFR Part 17

RIN 1018-AU77


Endangered and Threatened Wildlife and Plants; Designation of 
Critical Habitat for Ceanothus ophiochilus (Vail Lake ceanothus) and 
Fremontodendron mexicanum (Mexican flannelbush)

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 Ceanothus ophiochilus (Vail Lake 
ceanothus) and Fremontodendron mexicanum (Mexican flannelbush) pursuant 
to the Endangered Species Act of 1973, as amended (Act). In total, 
approximately 644 acres (ac) (262 hectares (ha)) are proposed for the 
designation of critical habitat for these two species. Approximately 
283 ac (115 ha) of land in Riverside County, California, are being 
proposed as critical habitat for C. ophiochilus, and approximately 361 
ac (147 ha) of land in San Diego County, California, are being proposed 
as critical habitat for F. mexicanum.

DATES: We will accept comments from all interested parties until 
December 4, 2006. We must receive requests for public hearings, in 
writing, at one of the addresses shown in the ADDRESSES section by 
November 17, 2006.

ADDRESSES: If you wish to comment on the proposed rule, you may submit 
your written comments and information by any of the following methods:
    (1) E-mail: fw8cfwocomments@fws.gov. Include ``RIN 1018-AU77'' in 
the subject line. Please see the Public Comments Solicited section 
under SUPPLEMENTARY INFORMATION.
    (2) Fax: 760/431-9624.
    (3) U.S. mail or hand-delivery: Jim Bartel, Field Supervisor, 
Carlsbad Fish and Wildlife Office, 6010 Hidden Valley Road, Carlsbad, 
CA 92011.
    (4) Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    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 Carlsbad Fish and Wildlife Office at the above address.

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

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. Comments 
particularly are 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 (16 U.S.C. 1531 
et seq.), including whether it is prudent to designate critical 
habitat;
    (2) Specific information on the amount and distribution of 
Ceanothus ophiochilus or Fremontodendron mexicanum habitat, what areas 
should be included in the designations that were occupied at the time 
of listing that contain the features that are essential for the 
conservation of the species, and what areas that were not occupied at 
the listing are essential to the conservation of the species and why;
    (3) Land use designations and current or planned activities in the 
mapped critical habitat subunits and their possible effects on proposed 
critical habitat;
    (4) We are proposing to exclude non-Federal lands targeted for 
conservation within the Western Riverside County MSHCP from the final 
designation of critical habitat for Ceanothus ophiochilus under section 
4(b)(2) of the Act (see Exclusions Under Section 4(b)(2) of the Act for 
details on the Western Riverside MSHCP). Please provide information 
concerning whether the benefits of exclusion of any of these specific 
areas outweigh the benefits of their inclusion under section 4(b)(2) of 
the Act. If the Secretary determines the benefits of including these 
lands outweigh the benefits of excluding them, they will not be 
excluded from critical habitat;
    (5) The appropriateness of excluding lands that contain 
Fremontodendron mexicanum occurrences within areas of the San Diego 
MSCP and areas of the BLM Otay Mountain Wilderness covered by the 1994 
multiple agency MOU (MOU 1994) from the final designation of critical 
habitat. Fremontodendron mexicanum is not covered by the MSCP; however, 
other species that co-occur with F. mexicanum are covered by the MSCP. 
Please provide comments whether the protection and management of the 
habitat for these co-occurring species is adequate to justify the 
exclusion of these lands under section 4(b)(2) of the Act. Also, we are 
seeking any information on the benefits of including or excluding these 
lands from the critical habitat designation;
    (6) The appropriateness of including lands in the Agua Tibia 
Mountains owned by the U.S. Forest Service and managed under its Land 
Management Plans for the Four Southern California National Forests from 
the final designation of critical habitat for Ceanothus ophiochilus. 
Please provide comments on how implementation of the management plan(s) 
in the Agua Tibia Mountains will or will not provide for conservation 
for C. ophiochilus. Also provide information on any minimization 
measures or monitoring plans for C. ophiochilus that will help insure 
that the occurrences of C. ophiochilus remain healthy and viable in the 
Cleveland National Forest. Finally, provide comments on the benefits of 
including or excluding these lands from the critical habitat 
designation;
    (7) Any foreseeable economic, national security, or other potential 
impacts resulting from the proposed designation and, in particular, any 
impacts on small entities;
    (8) 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;
    (9) Information concerning pollinator species for Ceanothus 
ophiochilus or Fremontodendron mexicanum and whether sufficient 
information exists to determine if such a biological feature should be 
considered a primary constituent element for either of these species 
(please see ``Primary Constituent Elements'' section of this proposed 
rule for a detailed discussion);
    (10) Whether any areas not currently known to be occupied by either 
species, but essential to the conservation of either species, should be 
included in the proposed designation; and
    (11) Whether the benefit of exclusion of any particular area 
outweighs the

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benefits of inclusion under section 4(b)(2) of the Act.
    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 fw8cfwocomments@fws.gov. 
Please also include ``Attn: RIN 1918-AU77'' in your e-mail subject line 
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 Carlsbad Fish and 
Wildlife Office at phone number (760) 431-9440. Please note that the e-
mail address fw8cfwocomments@fws.gov 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 names and/or home addresses, etc. but if you wish us to consider 
withholding this information you must state this prominently at the 
beginning of your comments. In addition, you must present rationale for 
withholding this information. This rationale must demonstrate that 
disclosure would constitute a clearly unwarranted invasion of privacy. 
Unsupported assertions will not meet this burden. In the absence of 
exceptional, documentable circumstances, this information will be 
released. We will always make submissions from organizations or 
businesses, and from individuals identifying themselves as 
representatives of 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 Carlsbad Fish and 
Wildlife Office (see ADDRESSES section).

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

    Attention to and protection of habitat is paramount to successful 
conservation actions. The role that designation of critical habitat 
plays in protecting habitat of listed species, however, is often 
misunderstood. As discussed in more detail below in the discussion of 
exclusions under section 4(b)(2) of the Act, there are significant 
limitations on the regulatory effect of designation under section 
7(a)(2) of the Act. In brief, (1) Designation provides additional 
protection to habitat only where there is a federal nexus; (2) the 
protection is relevant only when, in the absence of designation, 
destruction or adverse modification of the critical habitat would in 
fact take place (in other words, other statutory or regulatory 
protections, policies, or other factors relevant to agency decision-
making would not prevent the destruction or adverse modification); and 
(3) designation of critical habitat triggers the prohibition of 
destruction or adverse modification of that habitat, but it does not 
require specific actions to restore or improve habitat.
    Currently, 475 species, or 36 percent of the 1,310 listed species 
in the United States under the jurisdiction of the Service, have 
designated critical habitat. We address the habitat needs of all 1,310 
listed species through conservation mechanisms such as listing, section 
7 consultations, the Section 4 recovery planning process, the Section 9 
protective prohibitions of unauthorized take, Section 6 funding to the 
States, the Section 10 incidental take permit process, and cooperative, 
nonregulatory efforts with private landowners. The Service believes 
that it is these measures that may make the difference between 
extinction and survival for many species.
    In considering exclusions of areas proposed for designation, we 
evaluated the benefits of designation in light of Gifford Pinchot Task 
Force v. U.S. Fish and Wildlife Service, 378 F. 3d 1059 (9th Cir 2004) 
(hereinafter Gifford Pinchot). In that case, the Ninth Circuit 
invalidated the Service's regulation defining ``destruction or adverse 
modification of critical habitat.'' In response, on December 9, 2004, 
the Director issued guidance to be considered in making section 7 
adverse modification determinations. This proposed critical habitat 
designation does not use the invalidated regulation in our 
consideration of the benefits of including areas in this final 
designation. The Service will carefully manage future consultations 
that analyze impacts to designated critical habitat, particularly those 
that appear to be resulting in an adverse modification determination. 
Such consultations will be reviewed by the Regional Office prior to 
finalizing to ensure that an adequate analysis has been conducted that 
is informed by the Director's guidance.
    On the other hand, to the extent that designation of critical 
habitat provides protection, that protection can come at significant 
social and economic cost. In addition, the mere administrative process 
of designation of critical habitat is expensive, time-consuming, and 
controversial. The current statutory framework of critical habitat, 
combined with past judicial interpretations of the statute, make 
critical habitat the subject of excessive litigation. As a result, 
critical habitat designations are driven by litigation and courts 
rather than biology, and made at a time and under a time frame that 
limits our ability to obtain and evaluate the scientific and other 
information required to make the designation most meaningful.
    In light of these circumstances, 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.

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 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 limited ability to provide for 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, and is very 
expensive, thus diverting resources from conservation actions that may 
provide relatively more benefit to imperiled species.

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    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). These costs, which are not 
required for many other conservation actions, directly reduce the funds 
available for direct and tangible conservation actions.

Background

    It is our intent to discuss only those topics directly relevant to 
the designation of critical habitat in this proposed rule. For more 
information on Ceanothus ophiochilus and Fremontodendron mexicanum, 
refer to the final listing rule published in the Federal Register on 
October 13, 1998 (63 FR 54956).

Species Descriptions and Life History

    As discussed in the listing rule, Ceanothus ophiochilus is a 4-5 
feet (ft) (1.2-1.5 meters (m)) tall shrub in the buckthorn family 
(Rhamnaceae) described by Steve Boyd, Timothy Ross, and Laurel Arnseth 
based on a collection made by the authors in March 1989 west of Vail 
Lake in Riverside County, California (Boyd et al. 1991). 
Fremontodendron mexicanum is a small tree or shrub 5-19 ft (1.5-6 m) 
tall in the cacao family (Sterculiaceae) first described by Anstruther 
Davidson (1917) based on a collection sent to him by Kate Sessions.

Ecology and Habitat

    Ceanothus ophiochilus occurs in restricted, localized occurrences 
in the interior foothills of Riverside County, California, and 
Fremontodendron mexicanum occurs in restricted and localized 
occurrences from the foothills of San Diego County and northwestern 
Baja California, Mexico. Ceanothus ophiochilus is found in chamise-
chaparral, often in association with specific soil types (Fross and 
Wilken 2006, p. 216). Fremontodendron mexicanum is known from ephemeral 
drainages and associated slopes with closed-cone coniferous forest 
dominated by Tecate cypress and chaparral. Fremontodendron mexicanum is 
found on the San Miguel Exchequer soil series; however, the 
distribution of this soil series covers a much larger geographic area 
than the known distribution of this species in the United States.
    Chaparral, like other Mediterranean shrubland communities, is 
adapted to intervals between wildfires of approximately 20 to 50 years 
(Keeley 1986). However, chaparral species have differing life history 
modes and characteristics (Keeley 1986, p. 95). Ceanothus ophiochilus 
does not resprout after fire but instead recovers by post-fire seed 
germination from seeds stored in the soil. This ``obligate seeder,'' 
like other species of Arctostaphylos (manzanita) and Ceanothus, 
require[s] 5-25 years for seed crops sufficient to replenish the seed 
pool in the soil (Keeley 1986, p. 99). Citing Arnold et al. 1951 and 
Zedler et al. 1983, Keeley (1986, p. 99) stated that if frequent fires 
occur, obligate seeders may not produce enough seed, then these 
obligate seeders may be eliminated from chaparral. Moreover, sustained 
fire prevention can result in senescent stands of C. ophiochilus that 
may not survive the eventual and unpredictable fires to reproduce 
vegetatively (Boyd et. al. 1991, pp. 30-39).
    On the other hand, Fremontodendron mexicanum is a ``facultative 
resprouter'' because it recovers after fire by seed germination and by 
resprouting from its roots. According to Keeley (1986, pp. 104-105), 
facultative resprouters are ``clearly more resilient to frequent fire 
[than obligate seeders] and they are potentially more resilient to long 
fire-free periods [like ``obligate resprouters''] because of their 
ability to replace their canopy with new basal sprouts in the absence 
of fire.''

Distribution

    Both Ceanothus ophiochilus and Fremontodendron mexicanum have 
extremely limited distributions. The listing rule (63 FR 54956) 
describes only three known occurrences of C. ophiochilus. These 
occurrences are known from two distinct places; one is west of Vail 
Lake and the other two are south of Vail Lake in the Agua Tibia 
Wilderness of the Cleveland National Forest in southwestern Riverside 
County. No new occurrences of this species have been found since the 
time it was listed. Fremontodendron mexicanum is only found growing 
naturally in southern San Diego County on Otay Mountain and in 
northwestern Baja California, Mexico. As stated in the listing rule, F. 
mexicanum is used in landscaping as a drought-tolerant plant, and this 
has led to a number of collection records that are far outside this 
species' natural range. At the time of listing, fewer than 10 
historical locations had been reported for F. mexicanum in the United 
States. After researching the historical locations for the publication 
of the listing rule, it was determined that only one population of F. 
mexicanum was both extant and of native origin.
    In early 2006, a previously undiscovered occurrence of 
Fremontodendron mexicanum was found in Little Cedar Canyon on Otay 
Mountain by Service biologists on land managed by the Bureau of Land 
Management. Little Cedar Canyon is located just to the west of Cedar 
Canyon, where the only other natural U.S. occurrence of F. mexicanum is 
found. This new occurrence in Little Cedar Canyon is spread out over a 
1-mile (1.6 kilometers) stretch of the canyon bottom. Twenty-six plants 
were documented in this canyon; however, the entire canyon was not 
surveyed and additional plants may occur further up the canyon or up 
one of the side canyons. With regards to occurrences in Baja 
California, Mexico, we have no current information on the population in 
Arroyo Seco; however, the occurrence in Arroyo Hediondo was visited in 
early 2006 (Snapp-Cook 2006). During that survey effort, four plants 
were found and a dam had been built upstream about 1 mile (1.6 
kilometers) from the location where the plants were found that may 
affect the hydrology of the stream (Snapp-Cook 2006).

Previous Federal Actions

    Ceanothus ophiochilus and Fremontodendron mexicanum were federally 
listed as endangered and threatened, respectively, on October 13, 1998 
(63 FR 54956). Ceanothus ophiochilus and F. mexicanum are listed as 
endangered and rare, respectively, by the State of California (Fross 
and Wilken 2006, p. 85). At the time these plants were federally 
listed, the Service evaluated the benefits of designating critical 
habitat to the detrimental effects (threats) of increased collection 
and vandalism and the potential for private landowner misunderstandings 
about the effects of critical habitat designation on private lands. The 
Service found, based on these factors, that designation of critical 
habitat for each species, C. ophiochilus and F. mexicanum, was not 
prudent. On August 10, 2004, the Center for Biological Diversity and 
California Native Plant Society challenged our failure to designate 
critical habitat for these two species as well as three other plant 
species (Center for Biological Diversity, et al. v. Gale Norton, 
Secretary of the Department of the Interior, et al., C-04-3240 JL, N. 
D. Cal.). The Service agreed to withdraw our previous not prudent 
finding and publish a proposed determination of critical habitat on or 
before September

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20, 2006. If prudent and a proposed designation is promulgated, then a 
final designation is due by September 20, 2007. Neither of these 
species currently has a completed recovery plan. We are hereby 
withdrawing our previous not prudent determination of critical habitat 
for C. ophiochilus and F. mexicanum. We have further re-evaluated 
prudency of designating critical habitat for these two species and 
reconsidered our evaluation of the threats posed by vandalism and 
overcollection in our previous prudency determination. We currently 
have no credible information indicating that the designation of 
critical habitat would be expected to increase the human threat from 
vandalism or overcollection. Therefore, we have now determined critical 
habitat to be prudent. As a result, we are now proposing to designate 
critical habitat for C. ophiochilus and F. mexicanum.

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, as defined under section 3 of the Act, means 
to use and the use of all methods and procedures which are necessary to 
bring any endangered species 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, and transplantation, and, in the 
extraordinary case where population pressures within a given ecosystem 
cannot be otherwise relieved, may include regulated taking.
    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. Section 7 is a 
purely protective measure and does not require implementation of 
restoration, recovery, or enhancement measures.
    To be included in a critical habitat designation, the habitat 
within the area occupied by the species 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, 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 require special 
management considerations 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).) In addition, when the best available 
scientific data do not demonstrate that the conservation needs of the 
species require additional areas, we will not designate critical 
habitat in areas outside the geographical area occupied by the species 
at the time of listing. An area currently occupied by the species but 
not known to be occupied at the time of listing will likely, but not 
always, be essential to the conservation of the species and, therefore, 
typically included in the critical habitat designation.
    The Service's Policy on Information Standards Under the Endangered 
Species Act, published in the Federal Register on July 1, 1994 (59 FR 
34271), along with Section 515 of the Treasury and General Government 
Appropriations Act for Fiscal Year 2001 (Pub. 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 (Pub. 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 occurrences, 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)(2) of the Act, we use the best 
scientific data available in determining areas that contain the 
features that are essential to the conservation of Ceanothus 
ophiochilus and Fremontodendron mexicanum. This includes information 
from the proposed listing rule (October 2, 1995, 60 FR 51433) and final 
listing rule (63 FR 54956), data from research and survey observations 
published in peer-reviewed articles, site visits and unpublished survey 
data, regional Geographic Information System (GIS)

[[Page 58344]]

layers including soil, vegetation and species coverages from both San 
Diego and Riverside Counties, and data compiled in the California 
Natural Diversity Database (CNDDB). We have also reviewed available 
information that pertains to the habitat requirements of these species. 
We are not proposing any areas outside the geographical area occupied 
by the species at the time of listing except for Little Cedar Canyon, 
which contains F. mexicanum.
    For Ceanothus ophiochilus, the primary informational sources used 
for this proposal are (1) CNDDB (2005 and 2006); (2) Boyd et. al. 
(1991); (3) Boyd and Banks (1995); (4) herbarium records from San Diego 
Natural History Museum, University of California at Berkeley, 
University of California at Riverside, and Rancho Santa Ana Botanical 
Garden; and (5) site visits by Service biologists to the known 
occurrences of Ceanothus ophiochilus in the Agua Tibia Wilderness of 
the Cleveland National Forest in early 2006. Additional information was 
provided by the Cleveland National Forest of the U.S. Forest Service 
(USFS), which was reviewed for development of this proposed rule.
    For Fremontodendron mexicanum, the primary informational sources 
used for mapping the Fremontodendron mexicanum proposed critical 
habitat are the following: (1) CNDDB (2005 and 2006); (2) Kelman (1983, 
1991); (3) herbarium records from San Diego Natural History Museum, 
University of California at Berkeley, University of California at 
Riverside, and Rancho Santa Ana Botanical Garden; and (4) site visits 
conducted by Service biologists in late 2005 and early 2006. The 
following informational sources were also used in the preparation of 
this rule: (1) The San Diego Project Office/Palm Springs--South Coast 
Field Office of the U.S. Bureau of Land Management (BLM); (2) the 
County of San Diego, MSCP Division; (3) the Botany Department of San 
Diego Natural History Museum; and (4) site visits by Service 
biologists. Service biologists conducted site visits to Cedar Canyon 
(CNDDB element occurrence 1, 13, 16), Little 
Cedar Canyon, and one unnamed canyon on the west side of Otay Mountain 
(CNDDB element occurrence 7) in late 2005 and early 2006 with 
the goal of relocating presumed extirpated historical occurrences of F. 
mexicanum. Service biologists also surveyed Horsethief Canyon north of 
Barret Lake in early 2006 to investigate a collection of F. mexicanum 
made in 1999 (CNDDB element occurrence 17). Service biologists 
were unable to relocate any of the historical sites outside of the 
known occurrence in Cedar Canyon; however, Service biologists did 
locate a previously undiscovered occurrence of F. mexicanum in Little 
Cedar Canyon during these site visits. In the site visit to the 
occurrences in Cedar Canyon and Little Cedar Canyon, the species was 
found growing on the terraces adjacent to Cedar Creek and on the slopes 
associated with the stream and terraces.

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 consider those physical and biological features, or primary 
constituent elements (PCEs), that are essential to the conservation of 
the species, and within areas occupied by the species at the time of 
listing, that may require special management considerations or 
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.

Ceanothus ophiochilus

    The specific primary constituent elements required for Ceanothus 
ophiochilus are derived from the biological and physical needs of the 
species as described in the final listing rule (63 FR 54956), as well 
as information contained in this proposed rule.
Space for Growth and Reproduction
    Ceanothus ophiochilus is restricted to ridgetops and north- to 
northeast-facing slopes in chamise chaparral (PCE 1). It 
occurs on soils formed from metavolcanic and ultra-basic parent 
materials or deeply weathered gabbro, all of which are phosphorus 
deficient and thus considered to be nutrient-poor (PCE 2) 
(Boyd et al. 1991). These soils are similar to serpentine soils, which 
are well known for the high number of associated rare and endemic 
plants (Kruckeburg 1984). The high number of rare and endemic plants 
that grow on nutrient-poor soils, sometimes termed as harsh soils, is 
due to the difficulty that common plants have with growing in these 
conditions. In turn, when plants become established on such soils, they 
remain genetically isolated from close relatives that are not able to 
thrive on the specialized soils. In this way, these nutrient-poor soils 
may help the species maintain reproductive isolation (Boyd et al. 
1991). This is important because C. ophiochilus appears to hybridize 
with the locally common C. crassifolius in places where the two species 
come in close proximity (Boyd et al. 1991). Hybrids are generally found 
on the margins of C. ophiochilus occurrences, where the soil changes 
from the harsh metavolcanic soil that C. ophiochilus is typically found 
on to the milder surrounding soil that supports species such as C. 
crassifolius (Boyd et al. 1991). Because hybridization is a common 
natural phenomenon among the species of Ceanothus (Schmidt 1993; Fross 
and Wilken 2006, pp. 131-149), these metavolcanic soils are not only 
important for growth and reproduction of C. ophiochilus, but also for 
space and separation from other Ceanothus species.
    Soils where the plant is found in the Agua Tibia Wilderness are 
mapped as Ramona, Cienaba, and Vista series (USDA 1973, pp 38-40, 70-
71, 82-83), but appear to be Las Posas series based on field review and 
soil samples (USFS 1998a). Soils where the plant is found at Vail Lake 
are mapped as Cajalco series (USDA 1971, p. 21).
    Ceanothus ophiochilus is found in chamise chaparral or mixed 
chamise-ceanothus-manzanita chaparral at elevations of 2,000-3,000 ft 
(666 to 1,000 m) (California Department of Fish and Game 2000, CNF 
occurrence record forms) with the following associated species: 
Adenostoma fasciculatum, A. sparsifolium, Quercus berberidifolia, C. 
crassifolius, Arctostaphylos spp., Salvia clevelandii, and Eriodictyon 
crassifolium (PCE 3) (Boyd et. al. 1991). These species are 
much more common than C. ophiochilus in chaparral ecosystems. Even 
though they grow in close proximity to C. ophiochilus, some of these 
species are unable to grow on the specific type of soil where C. 
ophiochilus is found, and hybrids were found on the edges of the 
occurrence in a different type of soil (Boyd et. al. 1991, p. 38).
    We have little information about the pollinators or reproductive 
biology of this species. This species does not have a burl (an 
underground mass from which the species can resprout following fire) as 
some species of Ceanothus do; instead, the seeds need fire to germinate 
and sprout. Little information exists regarding the dispersal of this 
species.
Primary Constituent Elements for Ceanothus ophiochilus
    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential

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to the conservation of Ceanothus ophiochilus. All areas proposed as 
critical habitat for C. ophiochilus are currently occupied, within the 
species' historical geographic range, identified within the listing 
rule, and contain sufficient PCEs to support at least one life history 
function. Based on our current knowledge of the life history, biology, 
and ecology of the species and the requirements of the habitat to 
sustain the essential life history functions of the species, we have 
determined that C. ophiochilus' PCEs are:
    (1) Flat to gently sloping north to northeast facing ridge tops 
with slopes in the range of 0 to 40 percent slope that provide the 
appropriate solar exposure for seedling establishment and growth;
    (2) Soils formed from metavolcanic and ultra-basic parent materials 
and deeply weathered gabbro or pyroxenite-rich outcrops that provide 
nutrients and space for growth and reproduction. Specifically in the 
areas that Ceanothus ophiochilus is found, the soils are:
    (a) Ramona, Cienaba, Las Posas, and Vista series in the Agua Tibia 
Wilderness; and
    (b) Cajalco series in the vicinity of Vail Lake; and
    (3) Chamise chaparral or mixed chamise-ceanothus-arctostaphylos 
chaparral at elevations of 2,000 ft to 3,000 ft (610 m to 914 m) that 
provide the appropriate canopy cover and elevation requirements for 
growth and reproduction.
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions which were the basis 
for the proposal. Because not all life history functions require all 
the PCEs, not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of Ceanothus ophiochilus. 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.

Fremontodendron mexicanum

    The specific primary constituent elements required for 
Fremontodendron mexicanum are derived from the biological and physical 
needs of the species as described in the final listing rule (63 FR 
54956), as well as the information below.
Space for Growth and Reproduction
    For its individual and population growth, Fremontodendron mexicanum 
needs alluvial terraces and benches adjacent to moderately sloped 
streams, creeks, and ephemeral drainages; stabilized north-to east-
facing slopes associated with steep slopes (San Miguel--Exchequer soil 
complex has slopes in a range of 9 to 70 percent (USDA 1973, p. 76)); 
and canyons (PCE 1 and 2). Fremontodendron mexicanum 
occurs at elevations of 900 ft (274 m) to 3,000 ft (914 m) in the 
United States (63 FR 54956); however, in Mexico, F. mexicanum occurs at 
an elevation of approximately 30 ft (9 m). Erosion from the steep 
slopes on Otay Mountain provides soils that form benches along the 
streambeds in Cedar Canyon and Little Cedar Canyon where F. mexicanum 
grows. Fremontodendron mexicanum also occupies some areas on slopes 
adjacent to the streambeds (Snapp-Cook 2006). Approximately 1,000 
plants were observed on the slopes associated with the alluvial 
terraces in three specific locations (Snapp-Cook 2006). In each of 
these locations, plants occurring on the slopes were between 10 and 500 
ft (3 and 152 m) from the stream bed. Although the role that the plants 
on sloped areas play in the dynamics of growth and reproduction of this 
species is unknown at this time, the high density of these plants 
suggests that they may play a significant role.
    Fremontodendron mexicanum is found growing within open stands of 
Tecate cypress, which often form a closed-cone coniferous forest, or is 
interspersed with mixed chaparral and Platanus racemosa (sycamore) (PCE 
3) (63 FR 54956). In addition to cypress and sycamore, F. 
mexicanum is frequently associated with Dendromecon rigida ssp. rigida 
(tree poppy) and Malosma laurina (laurel sumac) (Snapp-Cook 2006). The 
canyon slopes around F. mexicanum are generally vegetated with 
chaparral and coastal sage scrub species (63 FR 54956). This mix of 
chaparral and riparian species may provide adequate shade and ground 
cover to exclude nonnative species, preventing such species from 
competing with F. mexicanum (Snapp-Cook 2006). Fremontodendron 
mexicanum is a facultative resprouter, meaning it is able to sprout 
from underground roots after a fire, flood, or other disturbance 
destroys the above ground plant (Snapp-Cook 2006). This makes F. 
mexicanum more resilient to frequent fire than obligate seeders (plants 
that need fire to activate the germination of their seeds) because 
obligate seeders like Tecate cypress need 6 to 30 years to produce 
sufficient numbers of seeds to reproduce following a fire, whereas, F. 
mexicanum has the ability to begin replacing its canopy with new basal 
sprouts relatively quickly following a fire (Keeley 1986). More 
research is needed into F. mexicanum's reproduction and the role that 
pollination and seed production play in its survival.
Hydrology and Soil Moisture Requirements for the Species
    Fremontodendron mexicanum has been cultivated since its discovery 
in the early 1900s, and the data available from the cultivation reports 
suggest that this species does not need much water and does not do well 
in soils that do not drain well (Bornstein et al. 2005). 
Fremontodendron mexicanum grows on terraces and alluvial benches that 
are maintained by a natural hydrological cycle, which erodes the 
surrounding metavolcanic soils on the slopes and deposits those soils 
in the stream beds (Snapp-Cook 2006). The natural hydrological cycle 
also maintains open and semi-open spaces where F. mexicanum can 
establish itself. The natural flows may also provide transportation of 
seeds down stream to establish and augment downstream occurrences.
Primary Constituent Elements for Fremontodendron mexicanum
    Pursuant to our regulations, we are required to identify the known 
physical and biological features (PCEs) essential to the conservation 
of Fremontodendron mexicanum. The areas proposed as critical habitat 
for F. mexicanum are currently occupied, within the species' historical 
geographic range, and contain sufficient PCEs to support the species. 
Based on our current knowledge of the life history, biology, and 
ecology of the species and the requirements of the habitat to sustain 
the essential life history functions of the species, we have determined 
that the PCEs for F. mexicanum are:
    (1) Alluvial terraces, benches, and associated slopes within 500 
feet (152 meters) of streams, creeks, and ephemeral drainages where 
water flows primarily after peak seasonal rains with a gradient ranging 
from 3 to 7 percent; and stabilized north-to east-facing slopes 
associated with steep (9 to 70 percent) slopes and canyons that provide 
space for growth and reproduction.
    (2) Silty loam soils derived from metavolcanic and metabasic 
bedrock, mapped as San Miguel-Exchequer Association soil series that 
provide

[[Page 58346]]

nutrients and substrate with adequate drainage to support seedling 
establishment and growth.
    (3) Open Cupressus forbesii and Platanus racemosa stands at 
elevations of 900 ft (274 m) to 3,000 ft (914 m) within a matrix of 
chaparral (such as Dendromecon rigida ssp. rigida and Malosma laurina) 
and riparian vegetation that provide adequate space for growth and 
reproduction.
    This proposed designation is designed for the conservation of PCEs 
necessary to support the life history functions which were the basis 
for the proposal. Because not all life history functions require all 
the PCEs, not all proposed critical habitat will contain all the PCEs.
    Each of the areas proposed in this rule have been determined to 
contain sufficient PCEs to provide for one or more of the life history 
functions of Fremontodendron mexicanum. 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.

Criteria Used To Identify Critical Habitat

    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 Ceanothus 
ophiochilus and Fremontodendron mexicanum. Both of these species have 
small ranges and relatively few occurrences; therefore, all known 
occurrences of each species are essential for their conservation.
    To delineate the proposed critical habitat for Ceanothus 
ophiochilus, we used the following criteria: (1) We identified all 
areas known to be occupied by C. ophiochilus at the time of listing 
and/or currently known to be occupied using the location data from Boyd 
and Banks (1995); (2) we created GIS polygons, using these areas as 
guides, that included the occurrences and the ridge tops and north- and 
northeast-facing slopes immediately adjacent (within 500 ft (152 m)) to 
the occurrences of C. ophiochilus; and (3) we connected the polygons 
that were closer than 0.6 mi (1 km) to reduce fragmentation and ensure 
that the subunits captured populations and not individual occurrences.
    To delineate the proposed critical habitat for Fremontodendron 
mexicanum, we used the following criteria: (1) We identified all areas 
known to be occupied by native occurrences (we did not include 
occurrences known to be of cultivated origin) of F. mexicanum at the 
time of listing and/or currently known to be occupied using current 
data in the CNDDB (2005) and data obtained from field surveys (Snapp-
Cook 2006); (2) we created GIS polygons, using these areas as guides, 
that included the alluvial terraces and benches occupied by F. 
mexicanum, and the associated slopes within 500 ft (152 m) of the areas 
occupied by F. mexicanum to insure that adequate space was delineated 
to encompass all existing F. mexicanum and the area needed to maintain 
the PCEs; and (3) we connected the polygons that were closer than 0.5 
mi (0.8 km) from one another with a 660 ft. (201 m) wide corridor to 
allow for connectivity between known occurrences for the transfer of 
pollen and seeds and natural riparian process to occur.
    We then analyzed areas meeting these criteria to determine if any 
existing conservation or management plans exist that benefit the 
species and their PCEs. Ceanothus ophiochilus is included as a covered 
species in the Western Riverside County MSHCP. As a result, some 
occupied areas are being proposed for exclusion under section 4(b)(2) 
of the Act from the final designation of critical habitat for this 
species (please see ``Exclusions under Section 4(b)(2) of the Act'' for 
a detailed discussion). Fremontodendron mexicanum was initially 
considered for coverage under the San Diego MSCP; however, it was not 
covered because there was not enough information to determine how the 
MSCP would affect this plant. Other species covered by the San Diego 
MSCP, such as Tecate cypress and the Thorne's hairstreak butterfly 
(Mitoura thornei) co-occur with F. mexicanum in Cedar Canyon and/or 
Little Cedar Canyon, and the management for these other species may 
benefit F. mexicanum. At this time we are not proposing these areas for 
exclusion; however, we are soliciting public comment on any benefits to 
F. mexicanum from management of co-occurring species and the 
appropriateness of exclusion in the final rule (see Public Comments 
Solicited section).
    The MSHCP and MSCP documents were used as aids in determining areas 
that contain the features that are essential to the conservation of 
these two species. No areas outside the geographical area occupied at 
the time of listing by C. ophiochilus have been proposed for 
designation. Areas known to be occupied by F. mexicanum at the time of 
listing plus one newly discovered occupied area are proposed for 
designation. On the basis of an analysis of the newly discovered 
population we have determined that the population is essential for the 
recovery of the species. As such, the specific area containing this 
population has been determined to be essential to the conservation of 
F. mexicanum. The importance of the identification of any additional 
populations was identified in the 1997 biological opinion on the San 
Diego MSCP, which states, ``due to the rarity of the species, any new 
population found within the planning area will be significant to the 
survival and recovery of this species' (Service 1997, p. 112).
    When determining proposed critical habitat boundaries, we made 
every effort to avoid including areas such as buildings, paved areas, 
and other structures that lack PCEs for Fremontodendron mexicanum and/
or Ceanothus ophiochilus. The scale of the maps prepared under the 
parameters for publication within the Code of Federal Regulations may 
not reflect the exclusion of such developed areas. Any such structures, 
and the land under them inadvertently left inside critical habitat 
boundaries shown on the maps for this proposed rule have been excluded 
by text in the proposed rule and are not proposed for designation as 
critical habitat. Therefore, Federal actions limited to these areas 
would not trigger section 7 consultation, unless they may affect the 
species and/or primary constituent elements in adjacent critical 
habitat.
    We are proposing to designate critical habitat on lands that we 
have determined are occupied and contain sufficient primary constituent 
elements to support life history functions essential for the 
conservation of each species.
    Units are proposed for designation based on sufficient PCEs being 
present to support one or more of the species life history functions. 
Some units contain all PCEs and support multiple life processes. Some 
segments contain only a portion of the PCEs necessary to support the 
two species' particular use of that habitat. Where a subset of the PCEs 
are present (such as water temperature during migration flows) at the 
time of designation, this rule protects those PCEs and thus the 
conservation function of the habitat.
    Section 10(a)(1)(B) of the Act authorizes us to issue permits for 
the take of listed 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 species to minimize and mitigate 
the impacts of the

[[Page 58347]]

requested incidental take. 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 because the benefits of exclusion 
outweigh the benefits of inclusion as discussed in section 4(b)(2) of 
the Act. While take of listed plant species is not authorized under 
section 10(a)(1)(B) of the Act, HCPs can include conservation measures 
that benefit listed plant species. We are proposing to exclude the 
private lands at Vail Lake under the Western Riverside County MSHCP 
from the final designation of critical habitat for Ceanothus 
ophiochilus because the benefits of exclusion outweigh the benefits of 
inclusion (please see ``Exclusions under Section 4(b)(2) of the Act'' 
for a detailed discussion).

Special Management Considerations or Protection

    When designating critical habitat, we assess whether the areas 
determined to be occupied at the time of listing contain one or more 
PCEs that may require special management considerations or protection.
    As stated in the final listing rule, threats to Ceanothus 
ophiochilus include habitat destruction, alteration, fragmentation, and 
degradation from urban development, as well as fire at too frequent 
intervals to allow for sufficient seed bank replenishment in the soil 
(63 FR 54956). Threats to Fremontodendron mexicanum as cited in the 
final listing rule include altered fire regimes, indirect impacts from 
nearby urbanization, and increased competition from nonnative species 
(63 FR 54965). These threats could impact the PCEs determined to be 
essential for conservation of C. ophiochilus and F. mexicanum.
    Urban development near Ceanothus ophiochilus proposed units may 
alter the habitat characteristics required by the species. Land grading 
in and around occurrences of C. ophiochilus may affect the topography 
of the site and change the soil composition (PCEs 1 and 
2) rendering it unsuitable for species growth and 
reproduction. Urban development in these areas may also encourage 
invasion by nonnative plant species that would change the vegetation 
community and/or directly impact the vegetation community (PCE 
3). In addition, urban development near this species may 
increase the frequency of fire. No urban development is expected to 
impact the occurrences of C. ophiochilus on land owned by the U.S. 
Forest Service, and all of the private land included in this proposed 
critical habitat designation is covered by the Western Riverside County 
MSHCP (MSHCP). The single occurrence of C. ophiochilus on private land 
in the MSHCP is targeted for development avoidance, and this occurrence 
and associated habitat will be managed as part of the MSHCP. We do not 
believe that special management or protections will be required in 
addition to what is provided for by the MSHCP for the occurrence on 
private land within the MSHCP. Therefore, we are proposing to exclude 
private lands covered under the MSHCP from the final designation of 
critical habitat for C. ophiochilus (please see ``Exclusions under 
Section 4(b)(2) of the Act'' for a detailed discussion).
    Nonnative plant species such as Tamarix spp. (salt cedar) and 
Cortaderia selloana (Pampas grass) could reduce the amount of space 
available to F. mexicanum (PCE 1 and 2) and alter the 
vegetation community (PCE 3) if they become well established 
in either Cedar Canyon or Little Cedar Canyon. In our unit descriptions 
below for this proposed designation, we further describe the threats 
requiring special management or protections for each proposed unit.

Proposed Critical Habitat Designation for Ceanothus ophiochilus

    In total, approximately 644 acres (ac) (262 hectares (ha)) are 
proposed for the designation of critical habitat for these two species. 
We are proposing as critical habitat 283 ac (115 ha) of land for 
Ceanothus ophiochilus within one unit. This unit is further divided 
into two subunits: subunits 1A (Vail Lake) and 1B (Agua Tibia 
Mountains). Of this 283 ac (115 ha) of land, we are proposing to 
exclude 80 ac (33 ha) under section 4(b)(2) of the Act from the final 
designation of critical habitat for C. ophiochilus (See Figure 1)

.BILLING CODE 4310-55-P

[[Page 58348]]

[GRAPHIC] [TIFF OMITTED] TP03OC06.000

BILLING CODE 4310-55-C

[[Page 58349]]

    Unit 1 is located near Vail Lake in southern Riverside County, 
California. The areas being proposed as critical habitat constitute our 
best assessment at this time of areas determined to be occupied at the 
time of listing, containing the primary constituent elements essential 
to the conservation of the species that may require special management 
considerations or protection for Ceanothus ophiochilus. Below, we 
present brief descriptions of the proposed subunits, reasons why they 
meet the definition of critical habitat for C. ophiochilus, and our 
rationale for their inclusion in this proposal.

Unit 1: Western Riverside County

Subunit 1A, Vail Lake, Riverside County, California
    Subunit 1A (Vail Lake) consists of 76 ac (31 ha) of privately-owned 
land proposed for exclusion from the final critical habitat 
designation. Subunit 1A contains CNDDB element occurrence 1, 
and it is one of only three occurrences of Ceanothus ophiochilus known 
of at the time of listing. Land in this subunit is entirely within an 
area targeted for conservation under the Western Riverside County 
MSHCP. Threats to the PCEs that require special management or 
protections include impacts to ridge tops (PCE 1) from grading 
activities resulting from urban development impacts to the associated 
vegetation community (PCE 3), and special planning efforts to 
maintain a natural fire regime. However, the Western Riverside County 
MSHCP outlines conservation measures for this species and its habitat, 
and therefore, the 76 ac (31 ha) of privately owned land is being 
proposed for exclusion from the final designation (please see 
``Exclusions under Section 4(b)(2) of the Act'' for a detailed 
discussion).
Subunit 1B, Agua Tibia Mountains, Riverside County, California
    Subunit 1B (Agua Tibia Mountains) consists of 207 ac (84 ha) of 
land, of which 203 ac (82 ha) is federally owned. The remaining 4 ac (2 
ha) of privately-owned land are within an area targeted for 
conservation under the Western Riverside County MSHCP. Therefore, these 
lands are being proposed for exclusion from the final critical habitat 
designation (please see ``Exclusions under Section 4(b)(2) of the Act'' 
for a detailed discussion). Subunit 1B contains two of the three CNDDB 
element occurrences (2 and 3) of Ceanothus 
ophiochilus known at the time of listing. Threats to features within 
this subunit that may require special management include impacts to 
ridge tops (PCE 1) from grading associated with the creation 
of fuel breaks and impacts to the associated vegetation community (PCE 
3) resulting from unnatural fire regimes. Subunit 1B is mostly 
within the Agua Tibia Wilderness of the Cleveland National Forest, 
which is managed by the USFS.
    Recently the USFS completed the revised Land Management Plans for 
the Four Southern California National Forests (Forest Plans). 
Implementation of these Forest Plans was analyzed by the Service to 
address potential impacts to C. ophiochilus. This analysis found that 
impacts to C. ophiochilus would be minor or negligible upon 
implementation of appropriate minimization measures due to the low 
impact nature of activities planned (e.g., dispersed recreation, non-
motorized trails) (Service 2005 p. 129-132). However, the plan did not 
set up specific management and monitoring for C. ophiochilus, which may 
be necessary to insure that the occurrences of C. ophiochilus remain 
healthy and viable. As a result, we believe that the features essential 
to the conservation of C. ophiochilus within this area require special 
management to address altered fire regime and nonnative species. 
Therefore, we are proposing to include these lands containing features 
essential to the conservation of the species in this critical habitat 
proposal. In this proposed rule, we ask for public comment on the 
appropriateness of including portions of the Agua Tibia Wilderness in 
the final designation.

Proposed Critical Habitat Designation for Fremontodendron mexicanum

    We are proposing as critical habitat 361 ac (147 ha) of land for 
Fremontodendron mexicanum within one unit. This unit is further divided 
into two subunits: subunits 1A (Cedar Canyon) and 1B (Little Cedar 
Canyon). The one unit of critical habitat is located on Otay Mountain 
in southern San Diego County, California. This unit contains privately 
owned land and federally owned land in the Otay Mountain Wilderness 
Area managed by the Bureau of Land Management (BLM) (Otay Mountain 
Wilderness Act of 1999, Pub. L. 106-145, H.R. 15). The critical habitat 
described below constitutes our best assessment of specific areas 
determined to be occupied at the time of listing, containing the 
primary constituent elements essential to the conservation of the 
species that may require special management considerations or 
protection for Fremontodendron mexicanum. Critical habitat also 
includes those additional areas that were not known to be occupied at 
the time of listing, but are currently occupied and contain the primary 
constituent elements essential to the conservation of the species. 
These latter lands (Subunit 1B: Little Cedar Canyon) have been 
determined to be essential to the conservation of F. mexicanum.
    Below, we present brief descriptions of the proposed subunits, 
reasons why they meet the definition of critical habitat for 
Fremontodendron mexicanum, and our rationale for their inclusion in 
this proposal.

Unit 1: Otay Mountain

    Unit 1 consists of 361 ac (147 ha) on Otay Mountain in San Diego 
County and contains Federal land managed by the BLM and private land. 
Subunit 1A (Cedar Canyon) and subunit 1B (Little Cedar Canyon) are each 
separate canyons on the northwest portion of Otay Mountain; subunit 1A 
encompasses proposed critical habitat within Cedar Canyon and subunit 
1B encompasses proposed critical habitat within Little Cedar Canyon. 
This unit contains all of the PCEs required by Fremontodendron 
mexicanum and is essential to the conservation of the species because 
it supports the only natural occurrences of this species in the United 
States.
    Otay Mountain is located in southern San Diego County and is part 
of the San Ysidro Mountains. The Otay Mountain Wilderness Act of 1999 
states, ``this rugged mountain adjacent to the United States-Mexico 
border is internationally known for its diversity of unique and 
sensitive plants.'' The base of Otay Mountain is at 500 ft (152 m) 
elevation and the peak is at 3,566 ft (1,087 m) elevation. The distance 
from the north base of the mountain to the peak is 4 mi (6.4 km) and 
from the western flank the distance is 4.5 mi (7.2 km).
    The majority of lands proposed for designation in this unit are 
federally owned and under the management of the BLM. This area is also 
within the Multiple Habitat Preserve Area (MHPA)/Pre-approved 
Mitigation Area (PAMA) of the MSCP for the City and County of San Diego 
(MSCP). At the time the plan was written, Fremontodendron mexicanum was 
not included for coverage under the MSCP because there was not enough 
information on this species. In our analysis of the MSCP, we concluded 
that the implementation of the plan would not jeopardize the species 
(Service 1997, p. 112). Using GIS analysis, we determined that the 
proposed critical habitat for this species overlaps with the 
distribution of other

[[Page 58350]]

species that are covered species under the MSCP. These species include: 
Tecate cypress; Muilla clevelandii (San Diego goldenstar); Tetracoccus 
dioicus (Parry's tetracoccus); coastal California gnatcatcher 
(Polioptila californica californica); and the Thorne's hairstreak 
butterfly (Mitoura thornei). The BLM currently has a MOU with several 
parties stating that the management of the Otay Mountain will follow 
the MSCP. We are requesting public comment to determine if the 
protection and management provided for the species covered by the MSCP 
benefits F. mexicanum and its PCEs. However, at this time we are not 
proposing these areas for exclusion based on the MSCP.
Subunit 1A, Cedar Canyon, Otay Mountain, San Diego County, California
    Subunit 1A, Cedar Canyon, consists of 259 ac (105 ha) of land 
proposed for designation as critical habitat. Subunit 1A contains CNDDB 
element occurrences 1, 13, and 16. Land in 
this subunit is entirely within the Cedar Canyon Area of Critical 
Environmental Concern (ACEC) and a Research Na